author: Sognier, Judge.

text:
    74831-74834, 74895, 74896.
    MARTIN et al. v. THE STATE (six cases).
    (363 SE2d 765)
   Sognier, Judge.

Devoy Martin and Joseph Martin were convicted at a joint trial of selling alcoholic beverages on Sunday and selling alcoholic beverages without a license. Appellants have filed a total of six separate appeals, one for each defendant on each of the two accusations (case nos. 74831-74834), as well as separate appeals for each defendant from an order denying their motion to amend their motion for a new trial or in the alternative to allow an out-of-time appeal (case nos. 74895, 74896).

1. Case nos. 74895, 74896. Appellants were tried jointly in the State Court of Ware County on December 16,18 and 19,1985. Appellant Devoy Martin’s two accusations were designated case nos. 85-1962 and 85-1963: appellant Joseph Martin’s two accusations were designated case nos. 85-1964 and 85-1965. Both appellants were found guilty of the offenses charged on December 19, 1985, and filed a motion for new trial only as to case nos. 85-1963 and 85-1965 (sale of alcoholic beverages on Sunday) on January 3, 1986. Appellants thereafter obtained a different attorney who filed an amendment to appellants’ motion for a new trial on August 12, 1986, which set forth several additional grounds for a new trial but still did not include case nos. 85-1962 and 85-1964 (selling alcoholic beverages without a license). Appellants’ motion for a new trial was denied on January 19, 1987. On February 9, 1987, appellants filed a motion to amend their motion for a new trial or in the alternative to allow an out-of-time appeal; this motion was filed by yet another attorney. On February 13, 1987, appellants filed notices of appeal in our case nos. 74831-74834. On March 11,1987, the motion to amend the motion for a new trial or grant an out-of-time appeal which had been filed on February 9, 1987, was denied on the ground that the court was without authority to allow amendment of the motion for new trial. Appellants filed a notice of appeal from that decision; those appeals are our case nos. 74895 and 74896.

In regard to denial of appellants’ motion asking for an out-of-time appeal, that decision was a final judgment on the merits. Appellants then filed an application to appeal the trial court’s decision denying their motion for an out-of-time appeal. (Discretionary appeal no. 1852.) This court denied that application by order dated April 22, 1987, and such denial invokes the doctrine of res judicata on the issue of an out-of-time appeal. McLemore v. Stephenson, 181 Ga. App. 828, 829 (354 SE2d 17) (1987).

As to the portion of appellants’ motion seeking to amend the motion for a new trial, the original motion for a new trial, as amended, had been denied and was no longer before the trial court. Hence, the motion to amend the motion for a new trial was in reality an extraordinary motion for new trial. Appeal from the denial of such a motion must be by application when separate from the original appeal, as is the case here. OCGA § 5-6-35 (a) (7); Pitts v. State, 254 Ga. 298 (328 SE2d 732) (1985). There being no application to appeal the trial court’s order in this case (except the portion of the motion seeking an out-of-time appeal to which the doctrine of res judicata applies), the appeals in these two cases are dismissed.

2. Case nos. 74832, 74834. On December 19, 1985, appellants were found guilty of, and sentenced for, the offenses charged in these two cases, namely, selling alcoholic beverages without a permit (license). They did not file a motion for new trial as to these offenses, and did not file a notice of appeal of these cases until February 13, 1987. Since the notice of appeal was not filed within thirty days of judgment as required by OCGA § 5-6-38, and no extension of time for filing the notice of appeal was obtained, this court is without jurisdiction to consider the appeals in these two cases. Westerfield v. State, 169 Ga. App. 510 (313 SE2d 768) (1984). Accordingly, these appeals are also dismissed.

3. Case nos. 74831, 74833. These two cases relate to appellants’ conviction of the offense of selling alcoholic beverages on Sunday. Appellant Devoy Martin enumerates twenty-three errors and appellant Joseph Martin enumerates seventeen errors, many of which are the same. We note initially that appellant Devoy Martin’s enumerations 5, 6, 8, 9, 10, 18 and 21, and appellant Joseph Martin’s enumerations 5, 6, 7, 11, 14 and 15 all relate to issues not raised below, and this court will not consider issues raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

a. Both appellants contend they were denied effective assistance of counsel, and in a separate enumeration allege the trial court erred by not allowing appellants and their witnesses to testify on this issue at the hearing on their motion for a new trial. We agree.

To properly determine whether appellants were denied effective assistance of counsel when the issue has been raised in a motion for new trial, appellants’ trial counsel, who was a different attorney than their appellate counsel, should be allowed to testify as to his conduct of the trial, and appellants should also be allowed to testify and/or present evidence on this issue. Thus, we remand the case to the trial court for a hearing and appropriate findings concerning only the issue of ineffective assistance of counsel. See Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). If any further review of this issue is sought, the appropriate appellate procedure must be followed for such review.

b. Appellants next urge error in the trial court’s failure to take curative action or declare a mistrial after a State witness testified that after appellant Devoy Martin had been searched and read his rights by another agent, Devoy Martin did not at that time make a statement that the witness heard. Appellants made no objection to this testimony and did not move for a mistrial or request other curative action. “[I]n the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the [testimony], it was not error to fail to grant a mistrial or to instruct the jury.” McCoy v. Scarborough, 73 Ga. App. 519, 520 (6) (37 SE2d 221) (1946). Mullinnix v. State, 179 Ga. App. 104, 105 (2) (345 SE2d 650) (1986).

c. Appellants objected to several references by the court to State Exhibits 1 and 2 as whiskey and beer, or alcohol. They argue that these were improper comments on the evidence, since the State had the burden of establishing that the substance in the bottles and cans was, in fact, alcohol and beer. The court recognized this burden, and admitted the exhibits subject to the State establishing that the contents of the bottles and cans were, in fact, whiskey and beer. In appellants’ opening statement they acknowledged that the substance seized from appellants’ residence was alcohol. Appellant Devoy Martin testified that the substances seized were alcohol and beer, and a revenue agent testified that in his expert opinion the exhibits contained bonded whiskey and beer. Under such circumstances any allegedly improper reference by the trial court to the exhibits as alcohol and beer would be harmless. Further, with the exception of appellants’ objection to the introduction of the exhibits on the ground that the State had not established what the bottles and cans contained, no objection was made to the court’s comments, and this court will not consider questions raised for the first time on appeal. Tolbert, supra. The same rule applies to other comments to which appellants now object, and thus, we will not consider such issues.

d. Appellants assert error by the trial court in denying appellants’ motion to require the State to produce the confidential informant in court. At a hearing on this motion it was established that the informant’s name, Ron Roeschki, was on the accusation; that the initials “WSO” next to his name indicated the Ware Sheriff’s Office; that appellants apparently knew the informant; and that appellants made no effort to contact the informant, obtain his address, or subpoena him as a witness.

There is no requirement that the State provide addresses of its witnesses, Lewis v. State, 159 Ga. App. 135 (282 SE2d 750) (1981), nor is there any requirement that those persons whose names appear on the accusation as witnesses must testify at the trial of the accused. Glover v. State, 149 Ga. App. 369, 371 (3) (254 SE2d 492) (1979). Appellants did not subpoena the witness, and the initiative to subpoena a witness and how to enforce the witness’ attendance rests on counsel, not on the court. Id. Hence, the trial court did not err in denying appellants’ motion.

e. Appellants contend the court erred by allowing a State witness to testify, over objection, that appellant was not licensed to sell alcoholic beverages. In this regard, Detective Terry Wright testified that he checked the records of Ware County, Georgia to determine if appellant Devoy Martin had a license to sell beer or liquor, and he did not have such a license. Appellants objected to such testimony on the ground that it was hearsay, and the best evidence of whether Devoy Martin had a license would be testimony of someone in the licensing office. Appellants’ argument that such testimony was not the best evidence has been decided adversely to their contention. Cary v. State, 55 Ga. App. 167, 168 (3) (189 SE 625) (1937). See also Logan v. American Bankers &c. Co., 168 Ga. App. 647, 649 (1) (310 SE2d 263) (1983). In regard to appellants’ objection on the grounds of hearsay, hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. OCGA § 24-3-1 (a). In the instant case, Wright was not testifying as to something a third person told him, or what the contents of the records showed; rather, he was testifying that he searched the record and found no record that appellants had been issued a license to sell alcoholic beverages. Thus, the substance of his testimony did not fall within the definition of hearsay evidence. Further, Wright was testifying under oath and was subject to cross-examination regarding his search of the records.

While we have found no Georgia case dealing with the specific issue as to whether such testimony is hearsay, the United States Circuit Court of Appeals for the Fifth Circuit (which included Georgia at the time of the decision) has held that testimony as to a search of records was not hearsay. United States v. Wellendorf, 574 F2d 1289, 1291 (3, 4) (5th Cir. 1978). We find this case persuasive and accordingly hold the trial court did not err by allowing such testimony.

4. a. Appellants allege error in several of the court’s charges, but made no objection to such charges at trial. OCGA § 5-5-24 (c) provides: “Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” (Emphasis supplied.) While we find no substantial error in any of the charges complained of which was harmful as a matter of law, two of the charges complained of merit our consideration.

b. The first charge which deserves our attention is the court’s charge in regard to making findings as to each charge against each defendant. In this regard, after advising the jury as to the form of the verdict if found guilty or if found not guilty, the court stated: “And, of course, there are two cases against each Defendant and you must find separate verdicts in each case and in each — against each Defendant.” We think that stating that separate verdicts must be found against each defendant was a mere slip of the tongue, since the court had just finished charging the jury as to the form of the verdict if it found appellants guilty or if the jury found appellants not guilty. A mere verbal inaccuracy in a charge, which results from a palpable “slip of the tongue,” and clearly could not have misled or confused the jury, is not reversible error. Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981); Caldwell v. State, 167 Ga. App. 692, 695 (4) (307 SE2d 511) (1983).

c. Appellants allege error in the trial court’s charge on principal and agent. In this regard, the court charged the jury that if it found that Devoy Martin had control of the premises and that his son, Joseph Martin, was acting as his (Devoy’s) servant and employee and made sales of alcoholic beverages on Sunday and without a license, and was doing so with the knowledge and consent of Devoy Martin, then the act of the agent or employee is the act of the owner (Devoy) under the law of principal and agent. The court then stated: “And this goes back to the original rule of law that anyone who intentionally advises, encourages, or hires, employs, or counsels or procures another to commit a crime, may be charged and convicted of the crime himself.”

We first note that this charge applies only to appellant Devoy Martin, and could not have harmed appellant Joseph Martin in any way. Thus, his enumeration of error as to the charge is without merit. As to appellant Devoy Martin, the court’s charge on principal and agent was not appropriate under the facts of this case. However, it is clear from the entire charge that the court was charging the jury that Devoy Martin could be found guilty as a party to the crime even though he did not participate in the actual sale. The court’s charge referring to the “original rule of law” is taken from the statute on parties to a crime, OCGA § 16-2-20 (b) (4), and was correct in that regard. Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence, and there is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence. Thurmond v. State, 161 Ga. App. 602, 605 (2) (288 SE2d 780) (1982). In the instant case Devoy Martin’s defense was that he was not guilty because he did not make the sale himself. Under such circumstances a charge on parties to a crime was appropriate, and we do not find that the charge would mislead a jury. The verdict in this case was amply authorized by the evidence, and hence, we find no error.

5. Appellants allege the trial court erred by denying their motions for a new trial on the general grounds. The evidence disclosed that pursuant to information received from a confidential informant, a law enforcement officer and the informant went in a van to appellants’ home on Sunday morning. The informant was wearing a body bug and two other officers were parked a block or two away, monitoring the conversations between the informant and appellants. The informant exited the van and asked appellant Devoy Martin, who was outside his house, the price of a bottle of whiskey and a six-pack of beer. Devoy Martin told the informant the price, and also told him that Jody (appellant Joseph Martin) was in the house and would sell him the liquor and beer. Devoy then drove away and was arrested a short time later. The informant then entered the house and purchased a bottle of whiskey and a six-pack of beer from Joseph Martin for $17, using a marked $20 bill given to him by the officer outside the house, who had remained concealed in the van. After the sale was completed and the informant returned to the van with his purchase, a search warrant was obtained and appellants’ residence was searched, resulting in the seizure of a large quantity of whiskey and several cases of beer. The marked bill the informant used was found in appellant Joseph Martin’s billfold; when appellant Devoy Martin was arrested, he had $1,033 cash in his billfold, although he had no regular employment. No license to sell alcoholic beverages was found in the residence and a search of the Ware County records disclosed that no such license had been applied for or issued to appellants.

After being advised of his rights, appellant Joseph Martin told a GBI agent that he had gotten the marked $20 bill from a man that bought the beer and whiskey. Devoy Martin denied selling beer and whiskey, and testified that he had sold a parcel of land for $1,000, which impliedly accounted for the large amount of cash in his billfold..

We find this evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellants’ motion for a new trial on the general grounds.

6. Appellants contend the trial court erred by sentencing them to two consecutive one-year sentences to confinement, arguing that selling alcoholic beverages on Sunday was a lesser included offense of selling alcoholic beverages without a license. This argument is without merit.

When the same conduct may establish the commission of more than one crime, an accused may be prosecuted for each crime; however, he may not be convicted of more than one crime if one crime is included in the other. OCGA § 16-1-7 (a) (1). For the purposes of this statute, one crime is not included in the other if the two offenses involve proof of distinct essential elements. Sanford v. State, 169 Ga. App. 769 (315 SE2d 281) (1984). The two crimes alleged here share the same essential element of selling alcoholic beverages. However, each of the two crimes has an additional essential element distinct from the other. In addition to selling alcoholic beverages, one offense proscribes engaging in such activity on Sunday, OCGA § 3-3-20, while the other proscribes selling alcoholic beverages at any time without a license. OCGA § 3-3-2. Clearly, proof that appellants sold alcohol without a license would not prove that they sold alcoholic beverages on Sunday, nor would proof of the latter establish the former. Thus, the State established that appellants were selling alcoholic beverages in such a manner on the date in question as to be guilty of two separate and unmerged offenses. Sanford, supra. Accordingly, it was not error to sentence appellants for two separate offenses.

7. Appellant Devoy Martin alleges error in the court’s failure to charge on circumstantial evidence. Appellant made no request for such a charge, and where both direct and circumstantial evidence was introduced, as was the case here, the court was not required to charge on circumstantial evidence in the absence of a timely, written request for such a charge. Weatherby v. State, 213 Ga. 188, 193 (5) (97 SE2d 698) (1957); Bryant v. State, 229 Ga. 60, 61 (1) (189 SE2d 435) (1972); Burger v. State, 245 Ga. 458, 459 (1) (265 SE2d 796) (1980).

8. Lastly, appellant Devoy Martin contends the trial court erred by denying his motion to suppress evidence. Appellant filed two motions to suppress evidence, one relating to the search of his residence pursuant to a warrant, and the second motion relating to the search of appellant at the time of his arrest resulting in the seizure of $1,033 from his billfold. Appellant’s brief and argument relate solely to the seizure of the money from his billfold, so we will address only that issue. Appellant argues that the officers who arrested him lacked probable cause to do so, and therefore his arrest without a warrant was illegal. That being so, appellant argues, the cash money taken from his billfold should have been suppressed.

Decided November 17, 1987

Rehearing denied December 2, 1987.

Michael D. DeVane, C. Deen Strickland, for appellants.

The evidence relating to this issue disclosed that when the confidential informant got out of a van at appellants’ residence to buy the whiskey and beer, the informant was wearing a body bug which was monitored by the arresting officers, who were parked in a vehicle about a block and a half from appellants’ residence. When the informant got out of the van he encountered Devoy Martin getting into his car and asked how he was doing. Martin said: “Okay. Jody’s in there. He’ll wait on you.” The informant asked Martin what kind of liquor he had and Devoy Martin said Hiram Walker and Canadian Vodka. The informant asked the price of the beer and liquor, and Devoy Martin said some beer was $6 a six-pack and some was $4 a six-pack; the liquor was $11 a fifth. The informant then went in the residence and bought a six-pack of Budweiser beer and a fifth of bourbon from appellant Joseph Martin for $17. The entire conversation between the informant and Devoy Martin, as well as the informant’s conversation with Joseph Martin, was overheard by the arresting officers before they made the arrest of Devoy Martin.

“[I]f an officer, while in the presence or vicinity of the accused, acquires ‘probable cause’ (federal) to arrest the accused outside his or her home, and fails to make such arrest, there is likely to be a failure of justice as a matter of law if the officer is required to delay the arrest until a warrant is obtained.” Durden v. State, 250 Ga. 325, 327 (1) (297 SE2d 237) (1982). Applying this rule to the instant case, the arresting officers were aware that appellants had committed an offense, for they heard Devoy Martin give the price of the liquor and beer to the informant, and they heard the sale consummated. Thus, they had probable cause to believe an offense had been committed, and their arrest of Devoy Martin was lawful. Hence, it was not error to deny appellant Devoy Martin’s motion to suppress evidence of the money seized from his person incident to his arrest. OCGA § 17-5-1 (a) (4); Knighton v. State, 166 Ga. App. 390, 392 (304 SE2d 512) (1983).

Judgment affirmed in case nos. 74831 and 74833, and remanded for hearing pursuant to Division 3a. Appeals dismissed in case nos. 74832, 74834, 74895 and 74896.

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

Douglas Gibson, Solicitor, for appellee.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74847.
    BLUE RIDGE INSURANCE COMPANY v. MADDOX.
    (363 SE2d 595)
   Benham, Judge.

Appellant issued a policy of fire insurance to appellee, and the house insured under the policy burned on May 5, 1985. Appellee brought suit against appellant under the policy on September 6, 1985, but dismissed that suit without prejudice on May 22, 1986. Another suit, purporting to be a renewal of the first, was brought in another county on July 21, 1986. Both parties subsequently moved for summary judgment. This appeal is from the denial of appellant’s motion and the grant of appellee’s.

1. Appellant’s first, second, fourth, and fifth enumerations turn on the trial court’s holding that appellee’s second suit, brought outside the contractual period of limitation established in the policy, was validly renewed by filing it within six months of the dismissal of the first suit. We are obliged to agree with the trial court that the issue is controlled by Birmingham Fire Ins. Co. v. Commercial Transp., 224 Ga. 203 (1) (160 SE2d 898) (1968). There, as here, a suit was filed within the 12-month limitation period contained in the policy, dismissed by the plaintiff, then brought again within six months of the dismissal, but outside the contractual period of limitation. Appellant’s reliance on Melson v. Phenix Ins. Co., 97 Ga. 722 (25 SE 189) (1895), is misplaced since that case is inconsistent with the more recent decision in Birmingham Fire Ins. Co., supra, and the most recent decision of the Supreme Court on an issue is controlling. Charles Rossignol, Inc. v. Prophecy Corp., 177 Ga. App. 245, 247 (339 SE2d 288) (1985). Our decision in Porter v. Allstate Ins. Co., 172 Ga. App. 657 (324 SE2d 515) (1984), being inconsistent with Birmingham Fire Ins. Co., supra, and having been decided later than it, must be overruled. See Charles Rossignol, Inc., supra.

The trial court did not err in holding that the suit was timely.

2. Appellant’s remaining enumeration of error is directed to the portion of the trial court’s order awarding damages to appellee. It is clear from the record that appellee was entitled to a judgment on the issue of liability: he set out sworn facts showing fulfillment of the policy’s conditions precedent to recovery, and appellant submitted no evidence to counter that showing. See Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567 (1) (314 SE2d 241) (1984). However, the record does not contain sworn proof of the dollar amount of the recovery to which appellee is entitled, so the grant of specific damages was error notwithstanding appellant’s failure to respond to the motion for summary judgment. “On motion for summary judgment the burden of proof is on the moving party and does not shift to the respondent until a prima facie right to such judgment is shown. [Cits.]” International Systems v. City of Jackson, 161 Ga. App. 423 (2) (288 SE2d 344) (1982).

Decided November 19, 1987

Rehearing denied December 2, 1987

Sam F. Lowe, Jr., W. Howard Fowler, for appellant.

John H. Jacobs, for appellee.

3. We also find the grant of bad faith penalties pursuant to OCGA § 33-4-6 to be error. “ ‘(T)he existence, or not, of bad faith is a jury question.’ [Cit.] The issue of bad faith should be judged by the case made at trial, not by the preliminary proofs or other ex parte affidavits. [Cit.]” Stegall v. Guardian Life Ins. Co., 171 Ga. App. 576 (2) (320 SE2d 575) (1984).

4. In view of the reversal of part of the judgment in this case, appellee’s motion for damages for a frivolous appeal is denied.

In summary, the judgment of the trial court is affirmed insofar as it rejects appellant’s contractual period of limitation defense and establishes appellee’s right to recover damages pursuant to the policy involved. Insofar as it decides liability for statutory bad faith penalties and awards a specific dollar amount of damages, it is reversed.

Judgment affirmed in part and reversed in part.

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


author: Carley, Judge.

text:
    75040.
    75041.
    75042.
    75043.
    75044.
    75045.
    HOWELL et al. v. UNITED STATES FIRE INSURANCE COMPANY. PRUITT et al. v. UNITED STATES FIRE INSURANCE COMPANY. WILSON et al. v. UNITED STATES FIRE INSURANCE COMPANY. YIN v. UNITED STATES FIRE INSURANCE COMPANY. BOLAND et al. v. UNITED STATES FIRE INSURANCE COMPANY. AIR CARRIERS EXPRESS SERVICES, INC. et al. v. UNITED STATES FIRE INSURANCE COMPANY.
    (363 SE2d 560)
   Carley, Judge.

On September 29, 1985, a Cessna 208 Caravan aircraft carrying a pilot and sixteen parachutists crashed shortly after take-off. All seventeen persons on board were killed. The aircraft was owned by appellant-defendant Air Carriers Express Services, Inc. (ACES). Appellee-plaintiff insurer had issued a policy which provided coverage to ACES for damage to the aircraft and for liability resulting from its operation. Appellee initiated this declaratory judgment action, naming as defendants appellant ACES and the appellant-administrators of the estates of Mr. Steven Wilson, the pilot of the aircraft, and of Mr. David Williams, the president of ACES. The remaining appellant-defendants sought and were granted permission by the trial court to intervene in the action as personal representatives of four of the parachutists killed in the crash.

In its petition, appellee sought, insofar as it is relevant to these appeals, a declaratory judgment to the effect that there existed no insurance coverage for the crash and that it had no duty to defend any civil action arising from the crash. Although appellee’s petition stated several grounds for its denial of coverage, it moved for partial summary judgment based only on the ground that the pilot, Mr. Wilson, did not meet the terms and conditions set forth in the “open pilot provision” of the policy declaration. Appellants in case nos. 75040, 75041, 75043, and 75044 filed their own cross-motions for summary judgment against appellee. The trial court granted appellee’s summary judgment motion and denied the cross-motions for summary judgment against appellee. Appellants filed separate appeals from the order of the trial court granting summary judgment in favor of appellee. The resulting six cases are hereby consolidated for disposition in this single opinion.

1. Appellants first urge that, pursuant to certain provisions of federal aviation law, appellee has bound itself to provide coverage. However, the provisions of federal law upon which appellants rely apply only to interstate flights. If the possibility exists that air transportation services will cross state lines, then the air carrier must secure “liability protection for bodily injury and property damage in the event of such interstate travel and to avoid [federal] sanctions. . . . [The air carrier is required to be in] compliance with [federal] requirements for any air taxi service where interstate operations may be involved.” (Emphasis supplied.) Coren v. Puritan Ins. Co., 184 Ga. App. 667, 669 (2) (1987). That the fatal crash in question was an intrastate flight is uncontroverted in the record. Therefore, the issue of the extent to which coverage would be afforded must be determined on the basis of the policy as interpreted by applicable Georgia law. See Coren v. Puritan Ins. Co., supra at 669 (2).

2. Appellants contend that the appellee is bound by the pilot clause language which appears on the binder form issued to ACES rather than that which appears in the policy. “A binder is a contract of insurance in praesenti; temporary in its nature, intended to take the place of an ordinary policy until the same can be issued. It is a short method of issuing a temporary policy for the convenience of all parties, to continue, unless sooner canceled, until the execution of a formal policy . . . ‘[A binder is] . . . itself a contract — temporary, sketchy, and informal, but a contract notwithstanding. [Cit.] Usually it fixes the term and coverage of the policy, but by express reference leaves the details of the contract to the latter. [Cits.] Hence as to such details the contemplated policy rather than the binder is the determinative document.’ [Cit.]” (Emphasis supplied.) Fort Valley Coca-Cola Co. v. Lumbermen’s Mut. Cas. Co., 69 Ga. App. 120, 124 (24 SE2d 846) (1943). See also Cincinnati Ins. Co. v. Stuart, 139 Ga. App. 80, 81-82 (1) (227 SE2d 771) (1976).

Appellants urge, however, that the binder form was, in fact, itself a policy of insurance rather than a mere binder. In one place on the original form the following appears: “binder No.--” However, the word “binder” had been stricken and the term “assigned policy” inserted in its place, so that the form read: “assigned policy No.--” As the result of this alteration, appellants contend that the binder was itself a formal policy and that the pilot clause typed on the binder form was therefore a policy provision which could not be changed without the consent of the insured. See Broome v. Mut. of Omaha Ins. Co., 119 Ga. App. 443, 446 (2) (167 SE2d 607) (1969).

However, the alteration did not purport to change the very nature of the document from a temporary binder to a formal insurance policy. On its face, the document is clearly shown to be a mere temporary binder rather than a formal insurance policy, and this is made manifest by its language, including among others, the following reference: “[u]nless this binder is replaced by the issuance of policy. . . .” (Emphasis supplied.) Since a formal insurance policy was issued before the crash of the aircraft, it is the language of the pilot clause in that formal policy which controls. Compare International Indem. Co. v. McKeever, 174 Ga. App. 871 (331 SE2d 909) (1985) (holding that where the incident giving rise to the claim occurs before the policy is issued the language of the binder controls). Accordingly, whether or not the language of the pilot clause in the binder was ambiguous or in conflict with the language of the policy are issues which need not be addressed.

3. On the date of the crash, the pilot clause of the policy declaration stated as follows: “PILOT CLAUSE: Only the following pilot or pilots holding valid and effective pilot and medical certificates with ratings as required by the Federal Aviation Administration for the flight involved will operate the aircraft in flight: 1. Pilots who must have a commercial or airline transport certificate with an instrument rating and a minimum of 2000 logged pilot hours of which 250 hours have been in turbine aircraft and are graduates of the ground and flight training school conducted by the manufacturer or an entity under contract to it for the [Cessna 208 Caravan] aircraft . . . otherwise Tom Beaudrot. 2. A two person crew consisting of: A. Pilot in command: [same as 1 above]. B. Co Pilot: David Williams.”

“A provision in the policy that the aircraft should be piloted only by the named insureds or a qualified private or commercial pilot with a minimum of 200 logged hours as a pilot in command of aircraft, 10 hours of which must have been in a Cessna 172 or aircraft of similar type, and who has a valid and effective pilot certificate with proper rating as required by the Federal Aviation Agency for the flight involved, is a valid and binding one.” Grigsby v. Houston Fire &c. Ins. Co., 113 Ga. App. 572, 573 (2) (148 SE2d 925) (1966). See also Ranger Ins. Co. v. Columbus-Muscogee Aviation, 130 Ga. App. 742, 745 (4) (204 SE2d 474) (1974) (holding that where the pilot of the plane at the time of the crash did not possess a valid medical certificate as required by the “Pilot’s Clause” summary judgment for the insurer was mandatory); see also Atlanta Air Fleet v. Ins. Co. of N. America, 130 Ga. App. 15 (202 SE2d 192) (1973) (upholding the validity of a “Pilot’s Clause” requirement that the pilot in command be properly certificated and rated for the particular aircraft). In the instant case, the policy requirement that pilots must be graduates of the manufacturer’s ground and flight training school is valid. Such a provision, like those previously held to be valid, “had an obvious relation to the degree of risk or hazard assumed by the insurer. ...” Atlanta Air Fleet v. Ins. Co. of N. America, supra at 16.

Appellants urge that this requirement is void because no manufacturer’s flight school existed from which a pilot could graduate and, therefore, the requirement could not be met. However, the record shows that the manufacturer did operate a pilot-training program under the name “Caravan I Flight Crew Training,” which program was designed to provide training for the type of aircraft in question. It is also clear from the record that “Caravan I Flight Crew Training” was the only ground or flight training for the particular make and model of aircraft that was offered by the manufacturer, and that there was no other entity under contract to the manufacturer to provide such training. Accordingly, it is clear that “Caravan I Flight Crew Training” was “the ground and flight training school conducted by the manufacturer or an entity under contract to it for the [Cessna 208 Caravan] aircraft” referred to in the policy declarations. (Emphasis supplied.) At least two of the pilots employed by ACES were graduates of the “Caravan I Flight Crew Training” course. However, Mr. Steve Wilson, the pilot of the aircraft at the time of the crash, had not attended that training program and was not a graduate thereof. That actual flight training may not have been a mandatory part of the curriculum of the “Caravan I Flight Crew Training” does not obviate the fact that it was the manufacturer’s ground and flight training school for the particular aircraft. The pilot clause of the policy requires graduation from the manufacturer’s ground and flight training school, and it does not expressly require that there be a specified amount of either ground training or flight training. Rather, the pilot clause leaves the requirements for graduation or certification to the manufacturer of the aircraft.

Decided November 2, 1987

Rehearing denied December 2, 1987

John A. Howard, for appellants (case no. 75040).

William C. Lanham, Clark H. McGehee, for appellants (case no. 75041).

The fact that there were employees of ACES who were graduates of the manufacturer’s only flight crew training program for the make and model aircraft involved in the crash negates appellants’ argument that the pilot training requirement of the pilot clause of the policy was void because it could not be satisfied. Accordingly, the trial court did not err in granting summary judgment in favor of appellee in that it was established that, in violation of the pilot clause of the policy, the pilot at the time of the crash was not a graduate of the manufacturer’s ground and flight training school.

4. Appellants in case nos. 75040, 75041, 75043, and 75044 enumerate as error the denial of their cross-motions for summary judgment. However, in light of our holding in Division 3 that the Mai court did not err in granting summary judgment in favor of appellee, it follows that the trial court did not err in denying these appellants’ cross-motions for summary judgment.

These appellants also enumerate as error the trial court’s denial of their motions to compel discovery of the investigatory file prepared by Aviation Office of America (AOA) following the crash. The trial court made specific findings that AOA was the agent of appellee, and that AOA’s investigatory file was prepared in anticipation of this litigation. The trial court’s order also recites ample evidence to support its finding that the requested material comes within the ambit of OCGA § 9-11-26 (b) (3), and the trial court correctly held that discovery of such material could not be had in the absence of a showing of substantial need and undue hardship. See Tobacco Rd. v. Callaghan, 174 Ga. App. 539 (330 SE2d 768) (1985); Warmack v. Mini-Skools, 164 Ga. App. 737, 738-740 (2) (297 SE2d 365) (1982); Georgia Intl. Life Ins. Co. v. Boney, 139 Ga. App. 575, 580-582 (3) (228 SE2d 731) (1976). The trial court’s finding that appellants had “not made such an affirmative showing of need” is not clearly erroneous, and therefore, the denial of the motion to compel discovery was not error.

Judgments affirmed.

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

Gregory T. Presmanes, James G. Jackson, for appellants (case no. 75042).

Nicholas C. Moraitakis, for appellant (case no. 75043).

S. Phillip Brown, for appellants (case no. 75044).

John W. Henderson, Jr., H. Brian Sams, for appellants (case no. 75045).

Sewell K. Loggins, John J. Wiles, for appellee.


author: Deen, Presiding Judge.

text:
    75770.
    DON MAC GOLF SHAPING COMPANY, INC. v. REGISTER.
    (363 SE2d 583)
   Deen, Presiding Judge.

Charles Register was injured while working for Don Mac Golf Shaping Company, Inc., on May 11, 1985, and subsequently was awarded workers’ compensation benefits. In that award of March 31, 1986, after finding that the employer had no reasonable grounds for not timely paying the claim and thus necessitated Register’s engaging an attorney to enforce his rights, the administrative law judge assessed attorney fees against the employer in an amount equal to 25 percent of the income benefits recoverable by Register. This award was never appealed.

Shortly before the ALJ’s award was issued, Register had dismissed his attorney, Curtis Farrar. With the assistance of new counsel, Register settled his claim with the employer for $10,000 and payment of his medical expenses for 6 more months; on July 9, 1986, the board approved this settlement, which was silent as to the matter of assessed attorney fees to Farrar.

On December 18, 1986, Farrar filed a request with the board for an interlocutory order, seeking continuation of the assessed attorney fees pursuant to the award of March 31, 1986. The board in turn ordered the employer to pay Farrar $2,500, 25 percent of the $10,000 settlement amount, and the superior court affirmed that order. This discretionary appeal followed. Held:

Both parties to this appeal describe this case as unusual. Although Charles Register is the appellee, having previously fired Farrar, he probably has little concern over the employer’s attempt to deny Farrar any more assessed attorney fees. Notwithstanding this irony, we conclude that the board properly found that Farrar was entitled to the $2,500 as assessed attorney fees.

“An agreement which fixes the compensation between an employer and employee, approved by the board of workmen’s compensation, and not appealed, is res judicata as to the matters therein determined and the parties thereafter cannot challenge or contradict the matters embodied in the agreement.” Beam v. Fleet Transport Co., 145 Ga. App. 726, 727 (244 SE2d 582) (1978). See also OCGA § 34-9-15 generally. The employer contends that the board-approved settlement in this case was final, and that the board improperly reopened it. The hole in this one argument is that it overlooks the fact that the stipulated settlement does not address the issue of assessed attorney fees under the award of March 31, 1986, and that Farrar was a stranger to the settlement negotiations and settlement itself.

Decided November 17, 1987

Rehearing denied December 2, 1987

Daniel C. Kniffen, for appellant.

Curtis Farrar, Jr., for appellee.

Further, the settlement did not allude to the “assessed attorney fees” and was not signed by Farrar. Farrar was not aware of its existence, and after the board issued an award approving the agreement, a copy was not sent him. In effect, Farrar is contending that the negotiations and settlement reached by the new attorney and the other parties are tantamount to an ex parte act slicing into his vested property rights.

Farrah contends that the ex parte extinguishment by stipulation and agreement by those judging and adjudicating the negotiations and agreement, to which he was not a party and not given notice of, and to which he did not consent or sign, gives rise to a novel issue in Georgia, justifying the later award of attorney fees which has been approved by the trial judge and which we now consider and affirm.

Under these circumstances, the board correctly ordered the employer to pay Farrar the $2,500 as assessed attorney fees.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    72381, 72382.
    72383.
    WILSON v. THE STATE (two cases). VOYLES v. THE STATE.
    (364 SE2d 314)
   McMurray, Presiding Judge.

The Supreme Court, in Wilson v. State, 257 Ga. 352 (359 SE2d 661), having reversed the decisions of this court in Wilson v. State and Voyles v. State, 180 Ga. App. 825 (350 SE2d 807), the prior judgments of this court are vacated, and, in accordance with the decision of the Supreme Court, the judgments of the trial court are reversed.

Judgments reversed.

Carley and Pope, JJ., concur.

Decided December 2, 1987.

Mark O. Shriver IV, for appellant (case nos. 72381, 72382).

Bobby Lee Cook, James F. Wyatt III, for appellant (case no. 72383).

Roger G. Queen, District Attorney, William H. Boggs, Assistant District Attorney, for appellee.


text:
    74496.
    PRECISION LABEL INDUSTRIES, INC. v. JONES et al.
    (363 SE2d 605)
   McMurray, Presiding Judge.

On July 1, 1982, Charles R. Jones (defendant), the president and sole stockholder of Atlanta Tape & Label Company, Inc. (ATL), entered into an agreement in his individual and corporate capacity, with Precision Label Industries, Inc. (plaintiff) for the sale of ATL’s label making business. Pursuant to the sales contract, defendant was to provide plaintiff sales information, through May 31, 1982, which would reflect the value of ATL’s label making business as of the date of the sales agreement. Defendant did not comply with this provision and instead provided plaintiff information on ATL’s accounts receivable. The accounts receivable information did not reveal the loss of a major customer of ATL who had comprised about 34 to 40 percent of ATL’s past revenues. The sales information which was required to be provided by defendant under the sales agreement would have revealed the loss of this account.

On July 21, 1982, the parties completed the sale by transferring the assets and liabilities of ATL to plaintiff. In return, plaintiff paid the purchase price for the business. After the closing, plaintiff discovered the irretrievable loss of the major customer, continued to operate its business and, over one year after the date of sale, sued defendant and ATL’s predecessor company, Jeraco, Inc., for damages alleging fraud and breach of contract.

The evidence adduced at trial showed that defendant did not fraudulently withhold or conceal the sales information from plaintiff and that plaintiff was aware, at the time the sales agreement was executed and at the time of closing, of defendant’s non-compliance in providing it the sales information under the sales agreement.

Upon the close of evidence, plaintiff moved for a directed verdict on the breach of contract count, arguing that the undisputed evidence showed that defendant did not provide the sales information as required by the sales contract. Defendant argued that plaintiff waived this requirement of the contract. The trial court denied plaintiff’s motion for directed verdict, submitted the case to the jury and verdicts were returned in favor of defendant and Jeraco, Inc. on both the breach of contract claim and the fraud claim. After the denial of plaintiff’s motion for judgment notwithstanding the verdict and in the alternative motion for new trial, plaintiff filed this appeal from the judgment entered on its breach of contract claim. Held:

1. In its first two enumerations of error, plaintiff contends the trial court erred in failing to grant its motion for directed verdict and its motion for judgment notwithstanding the verdict. Plaintiff argues that the undisputed evidence showing that defendant did not comply with the terms of the sales contract by failing to provide the sales information demanded that a verdict be directed in its favor for breach of contract. We do not agree. “ ‘Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct' amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.’ Gibson v. Alford, 161 Ga. 672, 673 (5) (132 SE 442). See also Karpas v. Candler, 189 Ga. 711 (7 SE2d 243).

“Forfeitures of rights under valid legal contracts are not favored under the law. Our courts generally are quick to seize upon any waiver of a forfeiture, the rule being that the right to rescind for any breach must be asserted promptly, and a waiver of a breach or forfeiture can not be recalled. 17 CJS 897, § 409; 17 CJS 917, § 433; 12 AmJur 1016, § 436; McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848 (66 SE 146); Williams v. Empire Mutual &c. Ins. Co., 8 Ga. App. 303, 304 (7) (68 SE 1082); Farmers Mutual Co-operative Fire Ins. Co. v. Kilgore, 39 Ga. App. 528 (147 SE 725); Grolier Society v. Freeman, 45 Ga. App. 465 (165 SE 290); Cartwright v. Bartholomew, 83 Ga. App. 503, 507 (64 SE2d 323).” Pearson v. George, 209 Ga. 938, 945 (2), 946 (77 SE2d 1).

In the case sub judice, although the undisputed evidence showed that defendant did not comply with the sales contract by failing to provide plaintiff the sales information, evidence presented at trial authorized a finding that plaintiff was aware of defendant’s breach prior to execution of the sales agreement and prior to closing. Consequently, plaintiff’s failure to repudiate the sales contract on that ground prior to closing constituted a waiver thereof. In other words, because of plaintiff’s acquiescence to said breách, neither an action to rescind the sales contract nor an action for damages based on breach of the contract can be sustained. The trial court did not err in failing to grant a verdict in favor of plaintiff. See 6 EGL 124, Contracts, § 97 (1978 Rev.). See also 41 ALR2d 1173, § 8 (b).

Decided December 2, 1987.

Henry D. Green, Jr., for appellant.

Robert E. Flournoy III, for appellees.

2. Plaintiff contends in its third and fourth enumerations of error that the trial court erred in instructing the jury on “contractual waiver . . .” Plaintiff argues that the issue of “contract waiver was not properly before the jury . . .”

Pretermitting the issue of the propriety of submitting the issue of contractual waiver to the jury, in light of our holding in Division 1 of this opinion, there was no harm in instructing the jury in this regard as the jury’s conclusion was authorized as a matter of law under the evidence adduced at trial.

3. In its final enumeration of error, plaintiff contends the trial court erred in failing to “charge the jury on rules of contract construction and parol evidence . . .” This enumeration of error is without merit. Plaintiff failed to request such charges and therefore waived its right to complain on appeal. OCGA § 5-5-24 (b). Contrary to plaintiff’s assertion, we do not find the trial court’s failure to charge the jury in this regard harmful as a matter of law. See OCGA § 5-5-24 (c) and Widener v. Mitchell, 137 Ga. App. 730, 731 (4) (224 SE2d 868).

Judgment affirmed.

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


text:
    75057.
    DURHAM v. THE STATE.
    (363 SE2d 607)
   McMurray, Presiding Judge.

Defendant appeals his conviction of two counts of armed robbery. Held:

1. Defendant enumerates as error the trial court’s “failure to substitute counsel for Defendant upon evidence that Defendant and his counsel were inalterably in disagreement as to how to proceed; and defense counsel’s failure to withdraw, upon being rejected by Defendant from April 1986 until the day prior to trial, resulted in prejudice to Defendant’s substantial right to work with counsel in his defense effort.” The factual predicate shown by the record refutes these suggested errors.

First, the suggested difference of opinion as to how to proceed between defense counsel and defendant is apparently a reference to defendant’s rejection of the State’s plea bargaining offer despite defense counsel’s advice that he accept the offer. We would not anticipate, nor does the record suggest, that this event in any way interfered with the effectiveness of defense counsel or otherwise prejudice defendant in regard to other matters. In any event, defendant is not guaranteed the right to a meaningful attorney-client relationship. Morris v. Slappy, 461 U. S. 1 (103 SC 1610, 75 LE2d 610).

Secondly, while defendant argues that defense counsel disregarded an ethical duty to withdraw from representation of defendant upon being rejected by defendant from April 1986 until the day prior to trial, the record shows that, during this period, defense counsel in compliance with defendant’s choice did not act as defendant’s attorney. Defense counsel’s status during that time was to assist defendant in handling the case. On the day prior to trial, defendant indicated that he wished defense counsel to act as his attorney.

Finally, there was no error arising in this indigent defendant being confronted with choosing between representation by the appointed defense counsel and proceeding pro se. While an indigent defendant accused of a crime for which imprisonment is possible is entitled to have reasonably effective counsel provided to assist him, he is not entitled to counsel of his own choosing. Rivers v. State, 250 Ga. 288, 308 (6) (298 SE2d 10). A request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court. Newby v. State, 161 Ga. App. 805, 806 (2), 807 (288 SE2d 889). Thus, contrary to defendant’s argument, any act of defendant which effectively terminated his counsel would not have had the effect of “triggering” a duty upon the part of the trial court to appoint another attorney for defendant prior to trial. Nor do the circumstances of the case sub judice require that the trial court exercise its discretion so as to appoint substitute counsel for defendant. This enumeration of error is without merit.

2. Defendant’s second enumeration of error involves a challenge for favor of a venireman. The jury panel as a group was asked the statutory questions required by OCGA § 15-12-164. In response thereto, one of the veniremen stated that he had had a relative killed by an armed robber. The following colloquy then ensued between the trial court and the venireman:

“THE COURT: Mr. Hodnett, let me ask you these questions then, which are pertinent questions: You stated you’ve had a relative so killed. I ask you this: In view of that experience, are you in a situation where you cannot accept the law as I give you in instruction and apply it to the opinion that you entertain of the facts and render a fair and impartial verdict again based exclusively on the evidence presented in this courtroom and the law as it pertains to this case as given you by the Court? Can you simply use that criteria and that alone to render a verdict in this case? MR. HODNETT: Sir, I’m afraid I will not be impartial. THE COURT: You might be partial, you think, to the State’s case? MR. HODNETT: Yes, sir.”

Subsequently, during individual voir dire defense counsel moved to strike the venireman for cause. While the record contains no transcript of the individual voir dire, there is a colloquy between the trial court and counsel transcribed which provides an uncontroverted account of the essential facts. An account of the individual voir dire of the venireman at issue as related by defendant’s trial counsel follows:

“The Court inquired directly of him when he came up, the State and I did, during the course of my conversation with him, he indicated that he did not want to be on the jury and did not think he could be fair and impartial by being asked to serve on the jury. I then moved to strike him for cause. The Court inquired of him and asked him the questions, which are required by law to be asked. And in response to those questions asked by the Court, he indicated at that point he thought he could be impartial and fair and decide the case on the evidence that was heard in the courtroom only and put aside his own personal opinions.

“Based on that, I then withdrew my motion to strike for cause. When I did that, my client, Mr. Durham, indicated to me he was not — did not feel that was proper and wanted to address the Court about it. I told him I would do that and brought it to the Court’s attention to wait until we finished the panel to see if he had any other questions of any other jurors. He’s at the point now he wants to make a statement to the Court about this matter. If that’s not a correct rendition —”

Thereafter, defendant’s remarks conceded that qualifying the venireman at issue was legal, but contended that it was nonetheless unfair. The defendant’s remarks were viewed as having reinstated the defense motion to excuse the venireman for cause. This defense motion was then overruled by the trial court.

While the venireman may have initially expressed some doubt as to his impartiality, this does not demand as a matter of law that he be excused for cause. The venireman having indicated to the trial court that he could render a fair and impartial verdict based solely on the evidence presented in court the venireman was prima facie competent to serve as a juror in the case sub judice. Whether to strike a juror for favor lies within the sound discretion of the trial court. Under the circumstances of the case sub judice, we find no abuse of the trial court’s discretion. Harris v. State, 178 Ga. App. 735 (1) (344 SE2d 528); Foster v. State, 248 Ga. 409, 410 (3) (283 SE2d 873). This enumeration of error is without merit.

3. Defendant, who is black, contends the trial court erred in sustaming the State’s peremptory strike of the only black, person on the panel of prospective jurors. This enumeration involves the application of the principles announced in Batson v. Kentucky, 476 U. S. _ (106 SC 1712, 90 LE2d 69). “If the defendant can establish a prima facie case of racial discrimination in the prosecutor’s exercise of his peremptory challenges, the prosecutor must explain his exercise of peremptory challenges, and demonstrate that racially neutral criteria prompted the exercise of his peremptory challenges.” Gamble v. State, 257 Ga. 325 (2) (357 SE2d 792).

In the case sub judice, the State exercised a peremptory challenge against the sole black prospective juror. As this resulted in the total elimination of blacks from the venire, we view this as establishing a prima facie case of racial discrimination, albeit due to the absence of any true “pattern” of strikes giving an inference of discrimination and the minimal disparity between the black percentage of the jury and the black percentage of the panel we view this as an extremely weak prima facie case established by defendant. “[A] weak prima facie case may be rebutted more readily than a strong one.” Gamble v. State, 257 Ga. App. 325, 327 (5), supra.

The prosecutor offered two reasons for striking the black venireman. One was the venireman’s undergraduate degrees in psychiatry and theology. The trial court recalled that “it was psychology I think he testified psychology.” Actually the venireman had received minors in psychology and theology while his major was in business. However, a prosecutor may strike from mistake, so long as the assumptions involved are racially neutral. Gamble v. State, 257 Ga. 325, 326 (2), supra. The second reason was the black venireman’s close friendship with several defense attorneys in the area. The State was also mistaken in this regard as the evidence only shows that the venireman was a social acquaintance of several attorneys.

The trial court accepted the State’s proffered rebuttal, finding that the prosecutor had offered racially neutral reasons for striking the sole black prospective juror. The trial court’s findings are entitled to great deference and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327 (5), supra. While defendant questions the viability of an inference that the venireman’s studies of psychology and theology suggest that he is a person of a nature not satisfactory for service as a juror to the State, the trial court noted having seen the State strike such individuals in the past and noted that in the case sub judice the State had used a peremptory strike to remove a similar individual, a teacher of handicapped children. Additionally, we reject defendant’s suggestion that the humanistic attitudes commonly associated with liberal arts “soft” studies is necessarily attenuated by the venireman’s business studies. Under the circumstances of the case sub judice, we find no error in the trial court’s determination that the prosecutor successfully established that racially neutral criteria prompted the State’s exercise of its peremptory challenges.

Decided December 2, 1987.

John T. Sherwood, Jr., for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, John M. Cross, Frank R. Cox, Assistant District Attorneys, for appellee.

4. Defendant’s remaining enumerations are without merit. Enumeration 4 may not be considered because it is predicated entirely on factual representations in defendant’s brief which are not supported by the transcript and do not appear in the record. Chamlee v. State, 166 Ga. App. 696, 697 (2) (305 SE2d 369).

Enumeration 5 dealing with the admissibility of evidence concerning a photo lineup involves issues which were not raised at trial. Issues which were not raised in the trial court cannot be raised for the first time on appeal. Johnston v. State, 178 Ga. App. 219, 222 (342 SE2d 706); Reynolds v. State, 168 Ga. App. 555, 556 (2) (309 SE2d 867). Furthermore, defendant’s contention that a photographic lineup constituted a “critical stage” requiring the presence of counsel is controlled adversely to him by Campbell v. State, 147 Ga. App. 554 (2) (249 SE2d 356).

On Count 1, defendant was sentenced to “confinement for a period of life ... to be served consecutive to any sentence defendant may now be serving.” In Enumeration 6 defendant contends the life sentence must be adjusted to run consecutive only to the sentence arising from a Gordon County conviction considered at the presentence hearing. Defendant contends that the sentence in effect permits consideration of other convictions defendant was not given notice of so as to eviscerate OCGA § 17-10-2 (a). However, the presumption is that the trial court considered only legal evidence. Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755). Also, as the sentence is within the limits of the law nothing in this regard is presented for review. Tommie v. State, 158 Ga. App. 216, 217 (279 SE2d 510).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    74502.
    JOHNSON v. THE STATE.
    (363 SE2d 773)
   Beasley, Judge.

Johnson appeals his conviction and sentence for aggravated assault, OCGA § 16-5-21, and the denial of his amended motion for new trial.

1. Appellant maintains that the trial court should have directed a verdict of acquittal at the close of the state’s case and that the verdict is contrary to the evidence and without evidence to support it.

The evidence construed so as to uphold the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), showed the following: Johnson and the victim, Wright, were attending a house party at which there was drinking and card playing. A fight broke out among Johnson and the others sitting at the card table in the dining room. The woman giving the party told those fighting to go outside. Johnson staggered through the living room, where Wright was, “stepping all over peoples’ feet.” He bumped up against Wright and stepped on his feet. Wright tried to grab and shake Johnson to see if Johnson knew what he was doing. Wright asked Johnson if he knew he was stepping on his feet. The two men began to fight and test each other’s strength but this lasted for no more than three minutes. The hostess told them to leave. Wright went out on the front porch. He was on the porch fifteen or twenty minutes when Johnson, without saying anything, came by and cut Wright with a knife, less than an inch above one eye.

Appellant maintains specifically that there was no evidence that he used any object, much less a knife, against Wright. On the contrary, on direct, Wright testified that Johnson “came by, took the knife, cut me across my eye without me knowing it.” On cross-examination, Wright reaffirmed, “he cut me with a knife ... I saw the blade.” Additionally, defendant himself testified that he was carrying a knife and that he cut Wright with it but maintained that Wright had a knife as well and that he (Johnson) inflicted the injury on Wright in self-defense. In fact, the defense admitted into evidence a knife which the defendant identified as the one he used to cut Wright.

The core of this case was credibility, to-wit, defendant’s tale of self-defense versus Wright’s story of unprovoked attack. Credibility of witnesses must be resolved by the jury. OCGA § 24-9-80. “The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. [Cit.]” King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). “In this instance the jury, obviously, chose to believe the state’s [witness].” Redd v. State, 154 Ga. App. 373 (1) (268 SE2d 423) (1980). We find the evidence sufficient for a rational trier of fact to have found Johnson guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); King v. State, supra at 734 (1). Therefore the trial court was correct in refusing to direct a verdict of acquittal. OCGA § 17-9-1; Humphrey v. State, 252 Ga. 525, 526 (1) (314 SE2d 436) (1984).

2. Next is whether the trial court allowed the state to improperly impeach a defense witness.

On cross-examination of the witness, the hostess of the party, the state asked how many times the police had raided her house. The witness responded, “never.” The defense objected and the witness reiterated, “never.” The state continued, “Gambling goes on there, doesn’t it?” Defendant objected, questioning that kind of impeachment. The court stated that the prosecutor had a right to a thorough and sifting cross-examination. The state then asked that defense counsel “cut down on the histrionics.” Defense counsel apologized and the court told the state to proceed. The assistant district attorney again asked if gambling was going on. The witness said no, that they were “playing spades and selling food.” Defendant made no further objection in this regard.

Appellant argues that the state’s questions attempted to plant in the jury’s mind that the witness was a criminal who was conducting a criminal enterprise at the time of the incident, and that the improper impeachment was important because the witness was crucial to the defense.

The validity of the argument is not reached because to begin with, the court made no formal ruling on defendant’s objections and defendant did not pursue it, therefore defendant waived any objection to the questioning. Ewald v. State, 156 Ga. App. 68, 69 (3) (274 SE2d 31) (1980); Watts v. State, 155 Ga. App. 376, 377 (1) (271 SE2d 29) (1980). See also Nolan v. State, 183 Ga. App. 52, 53 (1) (357 SE2d 873) (1987). Even assuming the court’s statement and actions constituted a de facto overruling of defendant’s initial objections, appellant has shown no harm by the court permitting the cross-examination to proceed. The witness consistently answered in the negative. This helped dispel in the jury’s mind any insinuations of illegality raised by the state’s questions. Consequently, once the questions had been asked, it was more favorable to the witness and so to the defendant, to let the state pursue the questions and elicit responses rather than to leave the questions unanswered. Without harm, there can be no reversible error. Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).

3. Appellant contends that the court erred in its charge on the definition of a deadly weapon when it charged, “You must first determine if the instrument used by the defendant was a deadly weapon likely to cause great bodily injury . . . .” He complains that the court had to charge that the instrument was “likely to produce death or great bodily injury” and that the failure to do so allowed the jury to find use of a deadly weapon by finding that the instrument was capable of producing serious bodily injury without more.

The court did not err in deleting the phrase “produce death” in its definition of deadly weapon. The requested definition of deadly weapon was disjunctive. All the court did was adjust its charge to the evidence and circumstances of the case, which it should have done. Crosby v. State, 150 Ga. App. 555, 557 (2) (258 SE2d 264) (1979). Besides, it is common knowledge, and goes without saying, that a knife can be used to produce death. But one need not intend death in order to be convicted of aggravated assault.

4. Appellant also contends that the court’s charge on serious injury and the definition of a deadly weapon, in combination, was incorrect, unclear, and confusing.

He argues that “[t]he effect of the charge was to equate deadly weapon with that weapon being able to inflict a serious injury and to eliminate in the jury’s mind the need to find that the weapon must be deadly, likely to kill, as charged in the indictment.” If this indeed was the effect of the charge we see no error. As we discussed in Division 4, the court’s definition of deadly weapon conformed to the evidence and the theory of the case.

5. Next is the contention that the verdict was contrary to law because appellant “under the indictment as laid out could not have been convicted of aggravated assault by assaulting with an object likely to produce serious injury and as the jury was thus charged, the conviction cannot stand” because “[cjonviction upon a charge not made would be sheer denial of due process.”

Defendant was charged with assault of the victim by cutting and stabbing him with a knife, the same being a deadly weapon. As we have discussed in Divisions 3 and 4, the court’s charge on deadly weapon was an adequate statement of the law under the facts of the case. Defendant was convicted of precisely what he was indicted for.

6. Charging OCGA § 16-5-21, subsections (a) (1) and (2) in their entirety does not succumb to the argument that there was a problem because of an incomplete definition of deadly weapon.

The portion of the code section complained of, i.e., subsection (a) (2) was given to the jury as defendant requested in his submitted request to charge. He cannot now complain of it. Williams v. State, 255 Ga. 21, 23 (6) (334 SE2d 691) (1985).

7. Appellant claims that the court erred in charging the jury, “If you find the state has failed to rebut this affirmative defense beyond a reasonable doubt, then you may find the defendant not guilty.” (Emphasis supplied.)

He argues that the use of “may” denied him due process under the federal constitution because it allowed the jury to convict in the face of legal justification.

While it is true that the court should have said “must” rather than “may,” in determining the effect of an isolated excerpt of a charge we have to consider the court’s charge as a whole. Graham v. State, 175 Ga. App. 411, 414 (4) (333 SE2d 664) (1985). Later in the charge the court fully instructed the jury as to the burden of proof and the concept of legal justification as claimed by the defendant. The court specifically charged, “If from a consideration of the evidence or from a lack of evidence, you believe these contentions of the defendant to be the truth of the case, or if there rests upon your minds a reasonable doubt as to his guilt, it would be your duty to acquit the defendant. . . .” The charge as a whole fully and clearly explained the state’s burden of proof and the jury’s duty if the state failed to carry its burden. We find no reversible error in the court’s misstatement as it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence. Asbury v. State, 175 Ga. App. 335, 337 (2) (333 SE2d 194) (1985).

8. Appellant asserts the court erred in not recharging the jury on justification or self-defense.

The jury requested further clarification between the offenses of simple battery and aggravated assault. Defendant requested that the court in answering the question address the issue of a deadly weapon, arguing that the court should repeat instructions favorable to the defense where the requested instructions taken alone might leave an erroneous impression in the minds of the jury. Discussion ended and the court read the jury the code sections for aggravated assault and simple battery.

It is not error to limit a recharge to the question asked. Williams v. State, 151 Ga. App. 765, 766 (1) (261 SE2d 487) (1979). See also Dyer v. State, 167 Ga. App. 310, 311 (3) (306 SE2d 313) (1983); Brownlee v. State, 155 Ga. App. 875, 876 (3) (273 SE2d 636) (1980). Nor has appellant shown how a repetition of these code sections taken alone would have left an erroneous impression in the jury’s mind.

9. Appellant maintains that the court erred in sending a photocopy of the two recharged code sections, OCGA §§ 16-5-21 (a) and 16-5-23 (a), to the jury room following the recharge. He argues that this coupled with the failure to recharge on justification or to “correct” the definition of a deadly weapon had the effect of spotlighting “irrelevant” subject matter in the charge to his detriment.

As discussed in Division 8, the court’s limiting of the recharge to the two code sections was not error. Furthermore, the code sections on aggravated assault and simple battery are not irrelevant as they constituted the gravamen of the criminal charge, and they were given precisely in answer to the jury’s question. As for their being sent out in writing, defendant’s counsel expressly stated and later affirmed that there was no objection to this method of responding to the jury’s inquiry. After this method was followed, no objection was registered and in fact, counsel stated that the previously-stated position was adopted. This, then, involves no reversible error. Columbus v. State, 151 Ga. App. 862, 863 (3) (261 SE2d 771) (1979). See also Millsaps v. State, 180 Ga. App. 509, 510 (351 SE2d 81) (1986); Llewellyn v. State, 241 Ga. 192, 194 (2) (243 SE2d 853) (1978).

Decided November 17, 1987

Rehearing denied December 3, 1987

Paul J. Stalcup, for appellant.

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

10. The last enumeration is that the court erred in refusing to grant the motion for new trial as amended.

Most of the grounds in defendant’s amended motion for new trial were separately enumerated as error and have been ruled on in previous divisions of this opinion. Any remaining grounds were not pursued on appeal, either by argument or citation of authority and therefore have been abandoned. Court of Appeals Rule 15 (c); Ramsey v. State, 183 Ga. App. 48, 51 (4) (357 SE2d 869) (1987).

Judgment affirmed.

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


text:
    75005.
    DORSEY TRAILERS SOUTHEAST, INC. v. BRACKETT et al.
    (363 SE2d 779)
   Carley, Judge.

Appellant-defendant is the manufacturer of a hydraulic lift device known as a “bucket truck.” One of appellant’s “bucket trucks” was purchased by the employer of appellee-plaintiff Mr. Earl Brackett. Appellee Mr. Brackett was seriously injured when the lift arm on his employer’s “bucket truck” collapsed. He and his wife, appelleeplaintiff Mrs. Vickie Brackett, filed this action, alleging the existence of a design defect in the “bucket truck” and seeking a recovery against appellant in strict liability and in negligence. Appellee Mr. Brackett sought to recover for his physical injuries and his wife sought to recover for loss of consortium.

Appellant answered and denied the material allegations of appellees’ complaint. After a period of discovery, appellant filed a motion for summary judgment. The trial court denied appellant’s motion but certified its order for immediate review. Appellant applied to this court for an interlocutory appeal and this appeal results from the grant of appellant’s application.

1. In support of its enumeration of the denial of its motion for summary judgment as error, appellant urges that there was no design defect in its product upon which a recovery in tort by appellees would be authorized.

The evidence of record, when construed most strongly in favor of appellees as the non-moving parties, would show the following: The performance of certain normal and necessary acts of servicing and maintenance required that the “bucket truck’s” rotation motor occasionally be removed from the unit. However, there was nothing to indicate how a removed motor should be repositioned in the unit and the design of the “bucket truck” was not such that the removed motor could be remounted only if it was returned to occupy its original position and orientation as to the other component parts of the unit. Instead, the design was such that the seemingly successful remounting of a removed motor could be achieved regardless of whether it was returned to its original position and orientation within the unit or the reverse thereof. That the motor had been remounted in the reverse or backwards position and orientation from that which it had originally occupied would not necessarily be apparent from a physical examination of the “bucket truck” as a whole or of the motor as an individual component thereof. There were apparently no arrows or other specific markings on the motor itself or its mounting which would serve to indicate that the realignment of a remounted motor was proper or improper. Thus, a “bucket truck” in which the motor had been remounted with a backwards or reverse orientation gave the visual appearance of normality. Moreover, the “bucket truck” would in fact operate in a normal manner with a backwards-oriented motor so long as the lift arm was not fully extended. At the point of full extension of the lift arm, however, a motor remounted in a backwards-orientation could, and in this case did, come into physical contact with certain other component parts within the unit. When this physical contact between the motor and other parts was made, the result was a total failure of the hydraulic system and the ultimate collapse of the lift arm.

In urging that, under this construction of the evidence, there was no actionable design defect in its product, appellant relies upon the fact that the motor of the “bucket truck” which injured appellee Mr. Brackett had been removed and then remounted in a backwards position rather than returned to its original orientation. In Talley v. City Tank Corp., 158 Ga. App. 130, 135 (3) (279 SE2d 264) (1981), it was held that a manufacturer is entitled to have the alleged defectiveness of its product judged by the product’s original design and that if “the evidence is uncontroverted that the original design of the manufacturer’s product has been totally eliminated and replaced so that the only similarity between the old and new is the mere basic function to be performed, no such issue [of liability] remains. [Cit.]” However, here, unlike in Talley, it is the original design of appellant’s “bucket truck” that is alleged by appellees to be defective and there is no evidence of any elimination or replacement of that original design. Under the evidence, the original design of the “bucket truck” was such that its servicing and maintenance required the occasional removal and remounting of the motor. Accordingly, appellant should have anticipated that, as designed, a “bucket truck” would be put to use after its motor had been removed and remounted. If it could be anticipated that the “bucket truck” would continue to be put to use after the removal and remounting of its motor, then appellant had a duty as to design so that the use of the product subsequent to. the removal and remounting of its motor would create no hidden danger. “ ‘[I]f in the normal functioning of the product as designed, such function creates a danger or peril that is not known to the user or bystander, then the manufacturer is liable for injuries proximately caused by such danger.’ [Cit.]. ... It is true that when the use to which a product was being put at the time of injury is not that originally intended by the manufacturer, liability of the manufacturer depends initially upon the foreseeability of that particular use. [Cit.] However, it is likewise true that ‘ “[t]he maker of an article for sale or use by others must use reasonable care and skill in designing it. . .so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable. . . .” ’ [Cits.]” (Emphasis in original.) Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (2) (319 SE2d 470) (1984).

Thus, under the evidence of record, that the “bucket truck” had been put to use after the removal and remounting of its motor shows employment of the product as it had been originally designed by appellant. That the motor had been remounted with a backwards orientation does not show the elimination and replacement of appellant’s original design. It illustrates the hidden danger in appellant’s original design insofar as it required the removal of the motor but facilitated the remounting of the motor in what was the deceptively normal appearing but ultimately dangerous backwards position. Accordingly, appellant would be provided no defense from potential liability because just such a removal and remounting of the motor as illustrates the alleged defectiveness of the original design of its “bucket truck” occurred in this case. The trial court did not err in failing to hold as a matter of law that appellant’s “bucket truck,” as originally designed, was not an actionable defective product and a proximate cause of appellee Mr. Brackett’s physical injuries.

2. Appellant further urges that, under the evidence of record, it had no duty to warn against the possible backwards remounting of the motor of its “bucket truck.” In a products liability case, the existence of a duty to warn “depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. [Cit.] Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. [Cit.]” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645-646 (2) (299 SE2d 897) (1983). See also Evershine Prods. Inc. v. Schmitt, 130 Ga. App. 34, 37 (3) (202 SE2d 228) (1973). Our review of the record shows nothing which would remove this case from the rule that foreseeability is generally a jury question. Accordingly, the trial court did not err in failing to grant summary judgment in favor of appellant on the issue of its duty to warn.

3. Appellant further contends that any duty to warn was fully satisfied by its mailing of a service bulletin to purchasers of its “bucket truck,” including appellee Mr. Brackett’s employer, prior to the occurrence of any injury. Where a warning has been made by a manufacturer, “[t]he sufficiency of that warning is for the jury. [Cit.]” Beam v. Omark Indus., 143 Ga. App. 142, 145 (1b) (237 SE2d 607) (1977). “The adequacy of the warnings and instruction on a label in light of the foreseeable danger is a jury question. It is also a jury question whether or not the manufacturer was negligent in failing to place a warning in such position, color and size print or to use symbols which would call the user’s attention to the warning or cause the user to be more likely to read the label and warning than not.” McIntosh, Eldridge’s Ga. Prods. Liability, § 2-24, p. 49. “Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury. [Cits.]” Stapleton v. Kawasaki Heavy Indus., 608 F2d 571, 573 (2) (5th Cir. 1979) (applying Georgia law). See also Center Chemical Co. v. Parzini, 234 Ga. 868, 871 (6) (218 SE2d 580) (1975); Evershine Prods. v. Schmitt, supra. Accordingly, the trial court did not err in failing to grant summary judgment in favor of appellant as to the adequacy of its warning.

4. Appellant urges that it was entitled to the grant of summary judgment because appellee Mr. Brackett assumed the risk as a matter of law. “[T]he question presented to this court is whether the record presents facts so plain and palpable that they demand a finding by the court as a matter of law that the [injured party] ‘had some actual knowledge of the danger; that he understood and appreciated the risk therefrom, and that he voluntarily exposed himself to such risk.’ [Cit.] ‘It is axiomatic that issues of negligence [and] assumption of risk . . . are not susceptible of summary adjudication except in plain, palpable and indisputable cases.’ [Cit.]” Spivey v. Vaughn, 182 Ga. App. 91 (354 SE2d 870) (1987). The evidence of record here does not show a “plain, palpable and indisputable” case of appellee Mr. Brackett’s assumption of risk and the trial court did not err in failing to grant summary judgment to appellant based upon that defense.

Decided November 20, 1987

Rehearing denied December 3, 1987

J. Robert Persons, Harvey R. Spiegel, for appellant.

Mary M. Oliver, Martha M. Glisson, W. Seaborn Jones, for appellees.

5. Appellant also urges that the trial court erred in refusing to grant its motion to strike the affidavit of appellee Mr. Brackett as being contradictory to statements appearing in his deposition. However, error, if any, in the trial court’s failure to grant appellant’s motion to strike would be harmless. Even absent the affidavit of appellee Mr. Brackett, appellant did not otherwise meet its burden as the movant for summary judgment and would not have been entitled to judgment as a matter of law.

Judgment affirmed.

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


text:
    73213.
    PRICE v. DEPARTMENT OF TRANSPORTATION.
    (364 SE2d 315)
    Decided December 3, 1987.

      Hilliard P. Burt, Terry J. Marlowe, for appellant.

      Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, for appellee.

      James E. Goodman, F. Clay Bush, Stephen H. Debaun, amici curiae.
   Beasley, Judge.

On certiorari, the decision of the Court of Appeals in the case was reversed by the Supreme Court. Price v. Dept. of Transportation, 257 Ga. 535 (361 SE2d 146) (1987). Our decision in Price v. Dept. of Transportation, 182 Ga. App. 353 (356 SE2d 45) (1987), is therefore vacated and the judgment of the Supreme Court is made the judgment of this Court. The case is remanded to the trial court in conformance with the directions of the Supreme Court, which we follow and adopt.

Judgment reversed and case remanded.

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


text:
    74406.
    OXFORD FINANCE COMPANIES, INC. v. DENNIS.
    (363 SE2d 614)
   Carley, Judge.

Appellant-plaintiff filed a petition for declaratory judgment, naming appellee as the defendant in the action. Appellee filed no answer. Appellee merely filed a written “consent that all the issues raised in the above and foregoing case shall be finally tried and determined ... by the court without a jury, right to trial by jury being specifically waived.” The trial court conducted a bench trial and entered judgment on the merits in favor of appellee. Appellant appeals from the declaratory judgment entered by the trial court.

OCGA § 9-4-2 (c) provides that a “[rjelief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.” However, it has been held that this provision “does not mean that a declaratory judgment [action] will lie to have just any justiciable controversy decided.” Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga. App. 620, 621 (115 SE2d 271) (1960). “[T]he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.” Phoenix Assur. Co. v. Glens Falls Ins. Co., 101 Ga. App. 530, 532-533 (114 SE2d 389) (1960). “A declaratory judgment may not be granted in the absence of a justiciable controversy. [Cits.] ‘The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. [Cits.]’ [Cit.]” (Emphasis supplied.) Loyd v. City of Irwinton, 142 Ga. App. 626-627 (1) (236 SE2d 889) (1977).

Although there was clearly an actual controversy between the parties which was ripe for adjudication, appellant’s petition shows on its face that, as between appellant and appellee, all possible rights had already accrued and all possible obligations had long since attached. What appellee and appellant were seeking, in effect, was an advisory opinion from the trial court as to which of them would succeed on the merits should past events ever result in an action at law or in equity being filed by one of them against the other. “ ‘The Georgia Declaratory Judgments Act makes no provision for a declaratory judgment which is merely advisory.’ [Cits.]” Hudgens v. Local 315 Retail &c. Store Union, AFL-CIO, 133 Ga. App. 329, 331 (210 SE2d 821) (1974). “Our declaratory judgment statutes provide that there must be an actual or justiciable controversy between adverse parties before they can be invoked. [Cit.] When a complaint for declaratory judgment shows upon its face, as this one does, that there is no actual or justiciable controversy between adverse parties, a trial court does not have jurisdiction to render a declaratory judgment. ... An actual or justiciable controversy was not present in this alleged litigation, and the trial court was without jurisdiction to enter a judgment. This being so, the judgment must be set aside as nugatory.” Kaylor v. Kaylor, 236 Ga. 777-778 (225 SE2d 318) (1976). Accordingly, here, as in Kaylor v. Kaylor, supra, the judgment below must be vacated. As appellant failed to demonstrate that it was in need of any direction from the court with respect to future conduct on its part which might increase its liability or otherwise affect its interests, the trial court erroneously entered an advisory declaratory judgment which held, in effect, that, should the accrued rights and obligations at issue result in future litigation, then appellee would prevail on the merits.

Decided December 3, 1987.

G. L. Dickens, Jr., for appellant.

Jesse Copelan, Jr., for appellee.

Judgment vacated.

Benham, J., concurs. Banke, P. J., concurs in judgment only.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74972, 74973.
    CHASTAIN PLACE, INC. et al. v. BANK SOUTH, N. A. (two cases.)
    (363 SE2d 616)
   McMurray, Presiding Judge.

Defendant Bank South, N. A. made a $2 million construction loan agreement with plaintiff Chastain Place, Inc. The loan agreement was evidenced by a promissory note and secured by a deed to secure debt to the real property being developed. Plaintiff Hammer was a guarantor on the note. Subsequently, plaintiff Hammer borrowed $300,000 from defendant. This debt was secured by an office building owned by Hammer and the net proceeds of the loan, after paying off an existing mortgage on the building and closing costs, was used to pay interest and reduce principal on the Chastain Place, Inc. construction loan.

After defendant declared a default under both promissory notes and instituted non-judicial foreclosure proceedings against the two properties, plaintiffs filed suit against defendant seeking an injunction against the impending foreclosures and seeking damages for breach of contract in that defendant exercised unreasonable restrictions and control over the development project of Chastain Place, Inc. Plaintiffs obtained a temporary restraining order against foreclosure. Following dissolution of the temporary restraining order and relief from a subsequent bankruptcy stay defendant foreclosed on the two properties. Defendant reported the foreclosure sales to the superior court, filing the report in the case sub judice which was already pending. The defendant also moved for summary judgment as to each foreclosure. Following hearings on the respective issues, the superior court entered its order on November 25, 1986, approving the foreclosure sales of the two properties and on February 11, 1987, the court entered summary judgments in favor of defendant and against plaintiffs for the amounts of the deficiencies following the foreclosure sales.

On December 26, 1986, plaintiffs filed their notice of appeal (case no. 74972) from the confirmation order of November 25, 1986. On March 10, 1987, plaintiffs filed their notice of appeal (case no. 74973) from the February 11, 1987, grant of summary judgments in favor of defendant. Held:

1. The reports of the non-judicial foreclosure sales and applications for confirmation were filed in the already pending action between the parties. Hence, the confirmation order was not a final judgment as it disposed of fewer than all claims and there was no express direction for the entry of final judgment and determination that no just reason for delaying finality of the judgment exists. See OCGA § 9-11-54 (b). A final judgment did not occur until the grant of summary judgments to defendant. Therefore, the notice of appeal in case no. 74972 was filed prematurely and this case must be dismissed. See Worth v. Alma Exchange Bank & Trust, 171 Ga. App. 748, 751 (1) (320 SE2d 816); Sidwell v. Wheeler, 178 Ga. App. 732 (344 SE2d 527).

2. In case no. 74973, plaintiffs enumerate as error the grant of summary judgments in favor of defendant in that the confirmation of the non-judicial foreclosure sales was improper due to a failure to comply with the requirement of OCGA § 44-14-161 (c) that plaintiffs be given at least five days’ notice of the confirmation hearing. OCGA § 44-14-161 (c) provides: “The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; . . .” From First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565 (197 SE2d 446), aff’d 230 Ga. 888 (199 SE2d 776), we draw the principles that actual notice will not cure the failure to comply with the notice provisions of OCGA § 44-14-161 (c) and that plaintiff Hammer as a guarantor on the promissory note of Chastain Place, Inc., was entitled to notice of the confirmation hearing in regard to the sale of the security of Chastain Place, Inc. While we might infer from the decision in Henry v. Hiwassee Land Co., 246 Ga. 87 (269 SE2d 2), and the ancillary posture of the confirmation proceeding in the case sub judice that the notice requirement of OCGA § 44-14-161 (c) would be satisfied by less than personal service, such as compliance with the notice requirement of OCGA § 9-11-5, there is no evidence in the case sub judice of the manner of purported compliance with OCGA § 44-14-161 (c). At the confirmation hearing plaintiffs’ counsel raised the issue of lack of notice, stating in his place that neither he nor his clients had received any written notice pursuant to OCGA § 44-14-161 (c) or rule nisi concerning the confirmation hearing.

Under the circumstances of the case sub judice (case no. 74973), it appears that there was no evidence authorizing the superior court’s finding of fact that notice of the hearing on the confirmations was properly given. Thus, the confirmations of the non-judicial foreclosure sales were not authorized and it follows that the summary judgments for deficiencies predicated thereon in favor of defendant and against plaintiffs cannot stand. We find that the superior court erred in granting summary judgments in favor of defendant and against plaintiffs.

Judgment reversed in case no. 74973.

Birdsong, C. J., Banke, P. J., and Benham, J., concur. Carley, J., concurs in the judgment only. Deen, P. J., Pope and Beasley, JJ., dissent. Sognier, J., disqualified. Appeal dismissed in case no. 74972. Birdsong, C. J., Deen, P. J., Banke, P. J., Pope, Benham and Beasley, JJ., concur. Carley, J., concurs in the judgment only. Sognier, J., disqualified.

Beasley, Judge,

dissenting.

I respectfully dissent with respect to Division 2, although I concur in the dismissal effected by Division 1.

To prevail on appeal, the appellants must show some harm even if they show error. Glass v. State, 235 Ga. 17, 19 (2) (218 SE2d 776) (1975); Murray v. Stratford, 181 Ga. App. 592 (1) (353 SE2d 85) (1987).

Appellants thrice had notice of the confirmation hearing: mailed service of the application pursuant to OCGA § 9-11-5 (b) upon attorney for the appellants, who had initiated the lawsuit originally; service of the Request for Oral Argument which clearly included it; publication of the hearing in the official organ.

Even if this was not an adequate type of notice to meet the statutory mandate of OCGA § 44-14-161 (c), appellants have shown no harm. They actually knew of the confirmation hearing in advance and attended and fully participated in it. This is unlike the situation in First Nat. Bank v. Kunes, 128 Ga. App. 565 (197 SE2d 446) (1973), aff'd 230 Ga. 888 (199 SE2d 776), where the two complaining parties had no notice as “debtors,” 230 Ga. at 889, and so did not have their day in court, see 128 Ga. App. at 567 (4). Unlike the two debtors there, who had no “opportunity to contest the approval of the sales before claims for the balance of the indebtedness could be prosecuted against them,” 230 Ga. at 889, the appellants here had and took advantage of such opportunity. In Henry v. Hiwassee Land Co., 246 Ga. 87 (269 SE2d 2) (1980), the debtor was not at the confirmation hearing and, in addition, no proceedings were pending between the parties there when the deficient notice was given.

Decided December 3, 1987.

Donald J. Goodman, for appellants.

Thomas C. Harney, for appellee.

In this case, however, the purposes of confirmation were met. First Nat. Bank &c. Co. v. Kunes, supra; Goodman v. Nadler, 113 Ga. App. 493, 496 (2) (148 SE2d 480) (1966). To reverse in order to hold another confirmation hearing with the same participants seems needless in the particular circumstances of this case.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.