author: Beasley, Judge.

text:
    A97A1944.
    CSX TRANSPORTATION, INC. v. WILLIAMS.
    (497 SE2d 66)
   Beasley, Judge.

Steve Williams filed suit under the Federal Employers’ Liability Act (“FELA”) to recover damages due to injury on his job with CSX Transportation, Inc. CSX admitted liability but moved in limine to exclude evidence of Williams’ medical expenses. Williams, on the other hand, moved to exclude evidence that the medical expenses had been paid by virtue of GA-23000, a policy insuring CSX employees for on-the-job injuries.

The court allowed the evidence of the medical expenses ($23,594.51) but disallowed reference to the GA-23000 payment. The court also refused CSX’s proposed jury charge that in calculating lost income the jury should award only after-tax income. The verdict was $350,000. The issues on appeal are (i) whether CSX’s failure to introduce evidence of tax rates waived the jury instruction and (ii) whether medical expense payments under GA-23000 for on-the-job injuries were to be offset against any recovery from CSX.

1. Citing Norfolk & Western R. Co. v. Liepelt, CSX enumerates as error the court’s failure to charge the jury that any award of past or future lost wages must represent Williams’ after-tax and not pretax wages. Williams counters that despite an invitation by the judge to do so, CSX presented no evidence as to the tax rates to be applied, and thus CSX had no basis from which to insist on the charge.

Procedurally, CSX first moved for a directed verdict at the close of Williams’ case, claiming his failure to address the tax rate on the past and future lost wages meant he had not proven damages. The court asked CSX to distinguish Fanetti v. Hellenic Lines Ltd., which holds that “to take advantage of the after-tax principle, a defendant must invoke it in timely and proper fashion” by offering “evidence to establish what amount of future taxes plaintiff would have incurred.” CSX conceded it had no authority contrary to Fanetti. The court denied the motion and invited CSX to present evidence of net income and tax rates if it wanted the jury to consider such.

CSX presented no such evidence. When CSX renewed its motion at the end of the case, stating it had no further argument nor authority, the court predictably denied the motion. The court also declined to give the jury instructions proposed by CSX, which charged that in determining damages for lost wages, the jury should reduce those figures by any income taxes Williams would have paid on those wages. CSX did not request a jury charge that the overall award would not be subject to taxation.

(a) Federal law controls. “It has long been settled that questions concerning the measure of damages in an FELA action are federal in character . . . even if the action is brought in state court.”

(b) The United States Supreme Court held in Liepelt: (i) a defendant may present evidence of tax rates on the lost income claimed by the FELA plaintiff, and (ii) “if requested, a trial court must instruct a jury its award is not subject to any income taxes and it should not consider such taxes in calculating an award.” Because CSX never requested a jury instruction that the overall award would not be subject to taxation, the court properly did not give one.

(c) CSX failed to present any evidence as to the amount or rate at which Williams’ past and future lost wages would be taxed. It thereby waived any right to ask for a jury instruction that the jury should reduce the income portion of its award by the appropriate tax. Unlike the general charge that the award is not taxed and that the jury should not inflate its award to make up for any potential taxes, a charge directing the jury to reduce that portion of its verdict representing lost income so as to calculate an after-tax figure requires that the jury have facts as to what tax rate to apply. Instructing a jury not to do something does not require evidence, whereas instructing it affirmatively to calculate numbers requires that the jury have the tools to perform that calculation. It cannot simply guess, or fashion an arbitrary formula.

Williams contends the burden of providing those tools to the jury rests on defendant, whereas CSX argues a plaintiff bears this burden as part of its case in proving accurate damages. Although Liepelt did not address the issue of who has the responsibility of showing applicable tax rates, subsequent federal cases have done so and agree with Williams. These cases have often given the first instruction (overall award not subject to taxes) without the defendant having presented any particular evidence, but have refused the second instruction (reduce lost income portion by taxes) where the defendant has failed to present evidence of taxes or net income. Deakle v. John E. Graham & Sons explained: “the income taxes that the uninjured [plaintiff] would have paid should be subtracted from each respective annual installment of his projected income. However, because the evidence introduced at trial did not establish how much in taxes an uninjured [plaintiff] would have paid, we cannot adjust [his] projected salary installments in this manner. The effect of this limitation is to increase [his] recovery since the entire . . . projected annual salary will be used as the basis for computing his lost future income. Having failed to perfect the record at trial, [defendant] cannot complain on appeal that an error has been made.”

CSX does not distinguish the federal cases placing the burden on defendant to show the applicable taxes before a charge that the lost income portion of the award should be reduced by taxes is appropriate. Its citation to O’Byrne v. St. Louis Southwestern R. Co., is inapposite, for O’Byrne addressed only the need to give the general charge that the overall award is not taxed and that the jury should not inflate its award to make up for any potential taxes. O’Byrne did not address the separate question of who bears the burden of showing applicable tax rates that would reduce the lost income portion of the award. The lack of the requisite evidence of applicable taxes warranted refusal of an instruction to award only after-tax income.

2. The other two enumerations of error concern the court’s ruling that under Seaboard Coastline R. Co. v. Delahunt, Williams could recover from CSX the $23,594.51 in medical expenses paid by GA-23000 with no offset. Because overwhelming federal authority holds amounts paid by this policy should be offset, the court erred in excluding evidence that GA-23000 paid the medical expenses and in disallowing the offset.

The statute at 45 USCA § 55 provides that a train company may offset against a plaintiff’s FELA award “any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee. . . .” But medical bills paid by the employer as a fringe benefit are considered to come from a collateral source and may not be offset against the employee’s recovery.

In 1986 Delahunt held that under federal law “[pjayments made under group insurance contract GA 23000 fall under the collateral source doctrine, and the plaintiff can claim his medical expenses as a part of his damages.” To reach this conclusion, Delahunt cited Patterson v. Norfolk & Western R. Co., Clark v. Burlington Northern, Haughton v. Blackships, Inc., Hall v. Minnesota Transfer R. Co., and Southern Pacific Transp. Co. v. Allen, each of which had held that GA-23000 or similar payments were not to be offset against the plaintiff’s recovery.

These cases, however, either pre-dated or did not address a significant renegotiation of the collective bargaining agreement between CSX and the union. In 1973 the Second Circuit reaffirmed in Blake v. Delaware & Hudson R. Co. that GA-23000 payments were from a collateral source and not to be offset against the plaintiff’s recovery. In his concurrence, Judge Friendly wrote that to avoid this harsh result, the railroads could amend the collective bargaining agreement to provide for the offset. Taking this as a cue, CSX and other railroads in 1975 renegotiated their collective bargaining agreement with the union to provide for that offset.

The collective bargaining agreement now provides: “In case of an injury or a sickness for which an Employee who is eligible for Employee benefits and may have a right of recovery against the employing railroad, benefits will be provided under the Policy Contract subject to the provisions hereinafter set forth. The parties hereto do not intend that benefits provided under the Policy Contract will duplicate, in whole or in part, any amount recovered from the employing railroad for hospital, surgical, medical or related expenses of any kind specified in the Policy Contract, and they intend that benefits provided under the Policy Contract will satisfy any right of recovery against the employing railroad for such benefits to the extent of the benefits so provided. Accordingly, benefits provided under the Policy Contract will be offset against any right of recovery the Employee may have against the employing railroad for hospital, surgical, medical or related expenses of any kind specified in the Policy Contract.” (Emphasis in original.)

Since 1975, every federal court which has addressed the renegotiated collective bargaining agreement has held that payments under GA-23000 are not from a collateral source and are not fringe benefits and has offset those payments against the plaintiff’s recovery. Folkestad v. Burlington Northern explains that the renegotiated collective bargaining agreement conclusively determines the issue, for the new agreement expressly stipulates GA-23000 payments are to be offset. Recent cases holding seaman’s health payments for on-the-job injuries to be from a collateral source are inapplicable, for no language in the collective bargaining agreements in those cases expressly provides for offset.

Delahunt erroneously relied upon federal cases pre-dating or not addressing the 1975 collective bargaining agreement. Because federal authority is clear that under the agreement GA-23000 payments are to be offset, Division 1 of Delahunt is overruled. We note that the Montana Supreme Court in Kalanick v. Burlington Northern R. Co. similarly declined to follow prior Montana precedent on this issue in deference to recent federal law.

Decided February 13, 1998.

Casey, Gilson & Williams, James E. Gilson, Sandra Gray, for appellant.

Agnew, Schlam & Bennett, Paul R. Bennett, Billy E. Moore, for appellee.

The $350,000 verdict expressly included an award of $23,594.51 for medical expenses. It is undisputed that these medical expenses (excepting $138.05) were paid by GA-23000. The case is remanded to the trial court to reduce the judgment by $23,456.46, which will result in a new judgment of $326,543.54.

Judgment affirmed on condition that plaintiff-appellee accept a reduction of the judgment amount; otherwise reversed.

Andrews, C. J., McMurray, R J, Birdsong, P. J., Pope, P. J, Johnson, Blackburn, Smith, Ruffin and Eldridge, JJ, concur.

       444 U. S. 490 (100 SC 755, 62 LE2d 689) (1980).

       678 F2d 424 (2nd Cir. 1982).

       Id. at 431-432.

       (Citation omitted.) Liepelt, supra, 444 U. S. at 493; see CSX Transp. v. Snead, 219 Ga. App. 491, 495 (4) (465 SE2d 690) (1995); Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2) (338 SE2d 23) (1985).

       444 U. S. at 493-498.

        Fulton v. St. Louis-San Francisco R. Co., 675 F2d 1130, 1134 (10th Cir. 1982); see Allred v. Maersk Line, Ltd., 35 F3d 139, 142 (4th Cir. 1994); Lang v. Texas & Pacific R. Co., 624 F2d 1275, 1278-1279 (5th Cir. 1980); Cazad v. Chesapeake & Ohio R. Co., 622 F2d 72, 75-76 (4th Cir. 1980); see generally Consolidated Freightways Corp. &c. v. Futrell, 201 Ga. App. 233, 236 (6) (410 SE2d 751) (1991).

       See Fanetti, supra, 678 F2d at 431-432; Selby v. Lovecamp, 690 FSupp. 733, 736 (N.D. Ind. 1988) (charge that overall award is not subject to taxation “is simple, clear and non-speculative”; charge that income portion is to be reduced by taxes requires evidence); Akermanis v. Sea-Land Svc., 521 FSupp. 44, 58, fn. 6 (S.D.N.Y. 1981), rev’d on other grounds, 688 F2d 898 (2nd Cir. 1982); see generally Burlington Northern v. Boxberger, 529 F2d 284 (9th Cir. 1976) (distinguishes two types of jury instructions); McWeeney v. New York &c. R. Co., 282 F2d 34, 38-40 (2nd Cir. 1960) (same).

       756 F2d 821 (11th Cir. 1985).

       (Citations and footnotes omitted.) Id. at 830-831; see Fanetti, supra, 678 F2d at 432 (burden on FELA defendant to show taxes if award of lost income is to be reduced by taxes); Bergen v. F/V St. Patrick, 816 F2d 1345, 1351 (9th Cir. 1987) (“circuits have refused to consider this [tax] issue on appeal where the appellant did not seek to introduce evidence relating to taxation at trial”); Akermanis, supra, 521 FSupp. at 58, fn. 6 (there “was no evidence before the lay jury upon which to base a calculation” of taxes on the lost income, so charge on same was properly refused); see generally Paquette v. Atlanska-Plovidba, 701 F2d 746, 748-749 (8th Cir. 1983) (defendant failed to offer any testimony relating to income tax liability). Compare Kurowsky v. United States, 660 FSupp. 442, 453-454 (S.D.N.Y. 1986) (court reduced lost income award by tax amount where defendant provided evidence of the applicable tax rates).

       632 F2d 1285 (5th Cir. 1980).

       179 Ga. App. 647, 648 (1) (347 SE2d 627) (1986).

       See Clark v. Burlington Northern, 726 F2d 448 (8th Cir. 1984); Patterson v. Norfolk & Western R. Co., 489 F2d 303 (6th Cir. 1973).

       179 Ga. App. at 648.

        Patterson, 489 F2d at 303.

        Clark, 726 F2d at 448.

       462 F2d 788 (5th Cir. 1972).

       322 FSupp. 92 (D. Minn. 1971).

       525 SW2d 300 (Tex. Civ. App. 1975).

       484 F2d 204 (2nd Cir. 1973).

       Id. at 207; see Thomas v. Humble Oil &c. Co., 420 F2d 793 (4th Cir. 1970); Urbaniak v. Erie Lackawanna R. Co., 424 FSupp. 981 (W.D.N.Y. 1977).

       See Varhol v. Nat. R. Passenger Corp., 909 F2d 1557, 1565 fn. 1 (7th Cir. 1990); Folkestad v. Burlington Northern, 813 F2d 1377 (9th Cir. 1987); Muzzleman v. Nat. Rail Passenger Corp., 839 FSupp. 1094, 1096-1097 (D. Del. 1993); Ford v. Nat. R. Passenger Corp., 734 FSupp. 215 (D. Md. 1990); Lyons v. Southern Pacific Transp. Co., 684 FSupp. 909 (W.D. La. 1988); Mead v. Nat. R. Passenger Corp., 676 FSupp. 92 (D. Md. 1987); Kendig v. Consolidated Rail Corp., 671 FSupp. 1068 (D. Md. 1987); Brice v. Nat. R. Passenger Corp., 664 FSupp. 220 (D. Md. 1987); Francis v. Nat. R. Passenger Corp., 661 FSupp. 244 (D. Md. 1987); Clark v. Nat. R. Passenger Corp., 654 FSupp. 376 (D. D.C. 1987); Gonzalez v. Indiana Harbor Belt R. Co., 638 FSupp. 308 (N.D. Ind. 1986); Nelson v. Penn Central R. Co., 415 FSupp. 225 (N.D. Ohio 1976); see also Rogers v. Chicago & North Western Transp. Co., 375 NE2d 952 (Ill. App. 1978); see generally Washington v. Atchison, Topeka &c. R. Co., 834 P2d 433 (N.M. App. 1992) (sickness benefits are not from collateral source); Burlington Northern R. Co. v. Strong, 907 F2d 707, 713-714 (7th Cir. 1990) (disability benefits were offset); Clark v. Burlington Northern, 726 F2d at 448 (disability payments were offset). Cf. Lucht v. Chesapeake & Ohio R. Co., 489 FSupp. 189, 190 (W.D. Mich. 1980) (court allowed only premiums to be offset).

       813 F2d at 1383.

       See Davis v. Odeco, Inc., 18 F3d 1237, 1244-1245 (5th Cir. 1994); Phillips v. Western Co. of North America, 953 F2d 923, 929-933 (5th Cir. 1992).

       179 Ga. App. at 647-648 (1).

       788 P2d 901, 908-909 (Mont. 1990).

       See also Kendig, supra, 671 FSupp. at 1068-1069 (overruling Poole v. Baltimore & Ohio R. Co., 657 FSupp. 1 (D. Md. 1985)).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A2269.
    PARKER v. THE STATE.
    (497 SE2d 62)
   Pope, Presiding Judge.

A jury convicted defendant Clinton Washington Parker of committing simple battery (OCGA § 16-5-23) upon Eu-londa Hines on February 20, 1996. The jury also convicted defendant of committing battery (OCGA § 16-5-23.1) upon, and making terroristic threats (OCGA § 16-11-37 (a)) to, Hines on August 8, 1996. We reverse defendant’s battery conviction and affirm his convictions for simple battery and making terroristic threats.

At trial, evidence was adduced from which a rational jury could conclude beyond a reasonable doubt as follows: On February 20, 1996, defendant and Hines, who had once been in a romantic relationship, were living together at a residence in Clayton County, Georgia. On that date, they became involved in a verbal exchange. During the exchange, defendant grabbed Hines and threw her down. He also tore off portions of her clothes and placed his hand over Hines’ mouth to prevent her from screaming. As a result of the above, Hines fled the residence, but she returned shortly with the police. When the police insisted that either defendant or Hines leave the residence for the night, Hines spent the night elsewhere. The next day, Hines took out a warrant for defendant, and defendant was arrested on the warrant during the early summer of 1996. He subsequently was bound over by a magistrate.

Based on a promise that defendant would permanently leave their residence, Hines helped defendant make bond. Instead of permanently leaving, however, on August 8,1996, defendant returned to the residence. On that date, defendant and Hines again became involved in an argument. During this argument, it is undisputed that defendant grabbed Hines’ hand, thereby breaking several of Hines’ fingernails and causing her fingers to bleed. Defendant also struck Hines in the head, which resulted in bruising. At trial defendant claimed that his actions in grabbing Hines’ hand and striking her were justified because they were defensive measures taken to prevent Hines from stabbing defendant with a boning knife she had picked up. Following this altercation, defendant fled the residence. After doing so, he threatened to kill Hines.

1. Based on the above evidence, we conclude that the jury was authorized to find defendant guilty of the crimes for which he was convicted under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We agree with defendant’s contention, however, that his conviction based on the battery charge stemming from the events of August 8, 1996, must be reversed because the trial court committed reversible error in failing to instruct the jury concerning defendant’s sole defense to that charge, which was justification based on self-defense. See OCGA §§ 16-3-20 (1); 16-3-21.

Although we acknowledge that defendant failed to request any charge on justification based on self-defense, and that generally, the failure to give an unrequested charge is not error, see Meyer v. State, 201 Ga. App. 756 (412 SE2d 575) (1991), it is well settled in this State that the failure to give a charge on a defendant’s sole defense in a criminal case, even without a request, constitutes reversible error if there is some evidence to support the charge. Printup v. State, 217 Ga. App. 495, 496 (458 SE2d 662) (1995); Animashaun v. State, 207 Ga. App. 156, 159-160 (2) (427 SE2d 532) (1993); Wells v. State, 200 Ga. App. 104, 105 (1) (407 SE2d 86) (1991). In the instant case, contrary to the State’s assertion, the only defense defendant raised in response to the battery charge was justification based on self-defense. His testimony that he was never the aggressor and that the actions he took against Hines were, dictated by his desire to prevent Hines from injuring him with a boning knife provides some evidence supporting a charge on self-defense justification. Printup, 217 Ga. App. at 496; see OCGA §§ 16-3-20 (1); 16-3-21.

In the absence of such a charge, the trial court’s instructions to the jury as a whole contained omissions which constituted substantial error that was harmful as a matter of law. Consequently, defendant’s failure to take exception to the trial court’s jury instructions, or reserve the right to later object to the instructions, does not bar us from considering this matter on appeal. See OCGA § 5-5-24 (c); Nelson v. State, 213 Ga. App. 641, 643 (3) (445 SE2d 543) (1994); Animashaun, 207 Ga. App. at 159-160 (2). Specifically, the jury instructions failed to inform the jury that if they believed defendant was justified in acting against Hines as he did, it was their duty to acquit him of having committed battery. Additionally, the instructions failed to inform the jury that the State had the burden of proving the absence of the elements of defendant’s justification defense. “Such critical omissions could lead the jury to conclude that it was defendant’s obligation to prove his justification for [his actions against Hines]. [Accordingly,] they constituted an impermissible shifting of the burden [of proof onto defendant].” (Citation omitted.) Nelson, 213 Ga. App. at 643-644 (3).

In light of the above, defendant’s conviction for battery must be reversed, and the case must be remanded for a new trial regarding that alleged offense. Id.; Printup, 217 Ga. App. at 496 (3); Wells, 200 Ga. App. at 105 (1).

3. We find no merit to defendant’s contention that all of his convictions must be reversed because the trial court improperly expressed an opinion as to the sufficiency of the evidence against defendant in response to a note received from the jury during their deliberations. The note requested that the jury be allowed to see certain items, including police reports, which were referred to by various witnesses during trial. In response, the trial court instructed the jury that police reports did not usually constitute admissible evidence because they were normally filled with hearsay, and thus, that they were not normally introduced into evidence. This was a correct statement of the law. See Gann v. State, 190 Ga. App. 82, 83 (1) (378 SE2d 369) (1989). The trial court then merely instructed the jury to base its verdict on the evidence that was introduced in the case.

Contrary to defendant’s assertion, the trial court’s responsive instructions did not intimate to the jury any opinion the trial court may have had regarding the sufficiency of the evidence presented in the case. Thus the instructions do not constitute error. Because of this, and our holding in Division 1, defendant’s convictions for simple battery and making terroristic threats are affirmed.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ, concur.

Decided February 13, 1998.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


author: McMuRRAY, Presiding Judge.

text:
    A97A2291.
    WARD v. THE STATE.
    (497 SE2d 65)
   McMuRRAY, Presiding Judge.

Defendant filed this appeal after the trial court denied his plea in bar seeking dismissal of uniform traffic citations charging him with driving under the influence of alcohol, speeding, weaving in a roadway laned for traffic and obstruction of a law enforcement officer. We affirm because the trial court’s order finding that the State did not intentionally force defendant to move for a mistrial is supported by evidence.

Before a jury trial on April 17, 1996, the trial court granted defendant’s pre-trial motion to exclude any evidence regarding “implied consent warnings” or defendant’s refusal to submit to a State-administered breath test. The trial court granted defendant’s motion for mistrial after the arresting officer violated this order on four occasions while testifying during trial. The first violation occurred when the officer responded to the State’s question, “Did you then place Mr. Ward under arrest?” The officer testified: “After the field sobriety tests, no, I didn’t. I read the implied consent warning.” The second violation occurred when the officer related what he did with defendant after arrest. In answering the State’s attorney’s question, “what happened” when they took him to jail, the officer explained that he took defendant to the pre-trial center “for chemical testing.” The third violation occurred when the officer was describing defendant’s behavior at the jail — testimony relevant to the charge against defendant for obstruction of a law enforcement officer. In this regard, the officer testified that defendant was taken to the room where a suspect’s blood-alcohol concentration is tested. The final violation occurred when the officer testified that defendant “refused to be tested. He refused the test.” Although this response is in direct violation of the trial court’s order, it was not responsive to the State’s attorney’s question — which relates to the manner in which defendant interfered with the officer’s performance of his official duties. Held:

Defendant contends the trial court erred in finding that the State did not force him to move for a mistrial, arguing that the State’s attorney was so motivated because he was not fully prepared for trial and because the trial court had denied the State’s pre-trial motion for a continuance.

Decided February 13, 1998.

Lawson & Thornton, Charles S. Thornton, for appellant.

June D. Green, Solicitor, Steven E. Rosenberg, Assistant Solicitor, for appellee.

“The general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless ‘ “the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.” ’ Fugitt v. State, 253 Ga. 311, 315-316 (319 SE2d 829) (1984) (quoting from Oregon v. Kennedy, 456 U. S. 667, 675-676 (102 SC 2083, 72 LE2d 416) (1982)).” Mobley v. State, 262 Ga. 808 (1), 809 (426 SE2d 150). The question of whether the State intended to “goad” a defendant into requesting a mistrial “is a fact question for the [trial] court to resolve. [State v. Whitehead, 184 Ga. App. 162, 163 (361 SE2d 41)].” Reed v. State, 222 Ga. App. 376 (1), 378 (474 SE2d 264). In the case sub judice, the trial court found that the State’s conduct was not intended to induce defendant to move for a mistrial. A review of the State’s attorney’s questions to the arresting officer and the arresting officer’s responses during trial support the trial court’s finding.

The trial court did not err in denying defendant’s plea in bar.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A2473.
    LOFTUS v. THE STATE.
    (497 SE2d 60)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of three counts of child molestation. The evidence adduced at trial reveals that defendant sexually molested his daughters (ages nine, seven and six at the time of trial) by touching the girls’ private areas with his hands. All three victims testified and gave detailed accounts of the manner in which defendant committed the crimes charged.

Defendant filed this appeal after the trial court denied his motion for new trial. Held:

1. The trial court did not err in admitting diagrams of a man’s nude body which a Department of Family & Children Services (“DFCS”) investigator used during interviews with the nine-year-old victim and the seven-year-old victim. The diagrams are relevant because, according to the DFCS investigator, these victims used the drawings to describe defendant’s inappropriate behavior. See Pittman v. State, 178 Ga. App. 693 (2) (344 SE2d 511).

2. Defendant contends the trial court erred in failing to excuse the entire jury panel after a prospective juror, a respected physician in the community, tainted other prospective jurors by responding as follows during voir dire: “I don’t think I can sit here three days. And I have a personal aversion to somebody who’d molest a little girl in that I have several granddaughters. And I just don’t think I could sit through this. . . . I’m afraid I’d be too harsh.”

“The inquiry is whether the remarks were ‘inherently prejudicial and deprived [defendant] of his right to begin his trial with a jury “free from even a suspicion of prejudgment or fixed opinion. . . .” (Cit.)’ Lingerfelt [v. State, 147 Ga. App. 371, 372 (1), 373 (249 SE2d 100)]. If so, failure to excuse the entire panel constituted an abuse of the trial court’s discretion. Roberts v. State, 259 Ga. 441 (2) (383 SE2d 872) (1989). Of course, where the facts establish only ‘gossamer possibilities of prejudice,’ Snyder v. Mass., 291 U. S. 97, 122 (54 SC 330, 78 LE2d 674) (1934), prejudice is not inherent.” Callaway v. State, 208 Ga. App. 508, 511-512 (2) (431 SE2d 143).

Because the prospective juror’s remarks in the case sub judice did not amount to testimony branding defendant a criminal, we cannot say this prospective juror’s statements prejudiced the rest of the panel. See id. Compare Lingerfelt v. State, 147 Ga. App. 371, 373 (1), supra, and Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107). Consequently, since defendant has not otherwise shown that he was prejudiced by the prospective juror’s comments, we affirm the trial court’s decision to deny defendant’s motion to excuse the jury panel. See Pruitt v. State, 176 Ga. App. 317 (1) (335 SE2d 724).

3. Contrary to defendant’s third enumeration of error, the trial transcript authorizes the trial court’s finding that there is sufficient indicia of reliability authorizing admission of the victims’ out-of-court statements under OCGA § 24-3-16. See Williams v. State, 204 Ga. App. 878, 879 (3) (420 SE2d 781); Gregg v. State, 201 Ga. App. 238, 239 (3) (411 SE2d 65). The victims’ out-of-court statements are not only consistent with their trial testimony, but each victim’s description of the incident underlying the crimes charged remained consistent every time the respective child uttered her statement to an adult prior to trial. Further, the victims’ voir dire testimony indicates that each victim has an appreciation for the nature and sanctity of truth, as well as the significance of a solemn oath; the victims’ mother testified that she did not coach the children, and the testimony of the adult witnesses who reported the victims’ out-of-court declarations indicates that the victims were neither stressed nor constrained to report the sexual wrongdoing which underlies the crimes charged. Finally, the victims’ out-of-court declarations all consistently report a single incident in which defendant sexually abused each victim — one after the other — while the other two children waited in a motel room bathroom. Under these circumstances, and since defendant was able to cross-examine each victim, the trial court did not err in admitting the victims’ out-of-court statements against defendant. OCGA § 24-3-16; Tidwell v. State, 219 Ga. App. 233, 234 (1) (b) (464 SE2d 834).

4. Since the trial court properly charged the jury on elements relevant to resolving issues of credibility, we find no error in refusing to give defendant’s request to charge the elements which are listed in Williams v. State, 204 Ga. App. 878, 879 (3), supra, and Gregg v. State, 201 Ga. App. 238, 240 (3) (b), supra, for determining whether there is sufficient indicia of reliability for admission of child hearsay under OCGA § 24-3-16. See Pruitt v. State, 258 Ga. 583, 588 (13) (a) (373 SE2d 192).

5. Defendant’s contention that the evidence is insufficient to sustain his convictions for child molestation is without merit. The victims’ testimony alone is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790).

Judgment affirmed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

I concur fully in each division except Division 4. The reason it was not error to refuse to give to the jury defendant’s Request to Charge No. 1 is that it presented to the jury a question which is reserved to the court itself. The reason is not, as the majority opinion rules, that the charge was unnecessary because the court properly charged on resolving issues of credibility.

Defendant sought to have the jury decide the reliability of the children’s out-of-court statements. That issue concerns the admissibility of evidence and is not directed to its credibility or weight. Both cases cited by defendant in making his request, and by the majority in its opinion, illustrate this. Williams v. State, 204 Ga. App. 878, 879 (3) (420 SE2d 781) (1992), and Gregg v. State, 201 Ga. App. 238, 239 (3) (411 SE2d 65) (1991), examine whether the trial court erred in allowing the admission of the evidence for the jury to consider.

This is a threshold matter, and thus it would not be proper to require the jury to resolve it. The court must decide if the jury should have the evidence in the first place. That is precisely what the statute says: a child’s statement about sexual contact or physical abuse “is admissible . . . if . . . the court finds that the circumstances of the statement provide sufficient indicia of reliability.” OCGA § 24-3-16.

Decided February 13, 1998.

James A. Yancey, Jr., for appellant.

Stephen D. Kelley, District Attorney, Margaret L. Knight, Assistant District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A97A2523.
    DEPARTMENT OF TRANSPORTATION v. CANNADY.
    (497 SE2d 72)
   Eldridge, Judge.

On July 15, 1992, Adelle C. Cannady, plaintiff-appellee, was a passenger in a car driven by her daughter, Brenda C. Martin, traveling westbound on Georgia State Highway 26, also designated U. S. Highway 80; they had left Brooklet and were driving toward Statesboro, Georgia. Daniel Steven Stafford, Jr., a joint tortfeasor with defendant-appellant, the Georgia Department of Transportation (“DOT”), was driving eastbound toward them on the same road.

As Stafford approached the intersection of Ga. 26 and Grimshaw Road, a county-maintained road, an intense summer thunderstorm struck; while of brief duration, the rain inundated the roadway with rainwater, as well as the surrounding area. Stafford lost control of his car because of the water on the road and hydroplaned across the centerline into the vehicle in which plaintiff was riding, severely injuring her. Immediately prior to the collision, Stafford’s vehicle had just rounded a slight curve adjacent to a farmhouse called the Water’s House.

The plaintiff sued Stafford for negligent driving and DOT for negligent maintenance of the roadway.

Prior to trial, DOT made a motion in limine to exclude, as an admission of negligence, any evidence of subsequent remedial measures taken on the roadway at the collision scene to deal with the road elevation and drainage. The trial court denied such motion, and the evidence was admitted for a permissible purpose to show notice, feasibility of repair, and as the proximate cause of the collision from DOT’s negligent maintenance of the roadway. DOT renewed its objections at trial.The jury returned a verdict against DOT for $2,750,000. The trial court reduced the verdict by the amount paid by Stafford. The trial court entered a judgment against DOT in the amount of $2,650,000, although it acknowledged in the judgment that the Georgia Tort Claims Act, OCGA § 50-21-29, placed “a limit on the recovery” by an individual of $1,000,000. DOT filed a timely appeal from the judgment.

1. The first enumeration of error is that the trial court erred in denying DOT’s motion in limine to exclude evidence of subsequent remedial measures and allowing this evidence into the trial of the case. We do not agree.

At pretrial, DOT’s motion in limine sought to exclude evidence that the road’s superelevation and cross-slope (crown), designed and constructed in 1931, had been deleted for cost reasons in the 1989 resurfacing project and had not been restored until three weeks after the collision. Plaintiff proffered evidence that such repairs were being offered, not to prove an admission of negligence, but to demonstrate the ease, feasibility, and ability to repair; DOT’s prior notice and knowledge of the danger; and proximate causation. The evidence showed that cost was the reason for the deletion of the cross-slope and superelevation in 1989 and for failure to restore it in 1991 and 1992 prior to the collision. DOT later renewed its motion, which the trial court denied.

At trial, the evidence showed that the 1931 plans called for a cross-slope (crown) in the straight road and a two-degree curve with a superelevation of .125 per foot located just west of Grimshaw Road (County Road 351) and milepost 24. The superelevation was to begin 100 feet from the curve; when built, the curve was 118 feet from Grimshaw Road and the superelevation of .24 feet, at the outside of the curve greater than the centerline, was to begin at approximately Grimshaw Road. The 1931 plans called for a cross-slope of one-eighth inch higher at the centerline. In new construction, the cross-slope should be a quarter-inch higher at the centerline, to cause faster water drainage off the road. In 1989, the highway was resurfaced, and such resurfacing should have had an equal or better slope; however, due to a lack of funding for the repaving project, the superelevation and proper cross-slope were not included. In 1991, Craig Black, DOT District Engineer, notified Glenn Durrence, DOT Area Engineer, that the curves no longer had superelevations and needed to be corrected, but the work was not done because of a lack of funds. In fact, going around this curve, the road was crowned without a super-elevation, so that the water drained to the outside of the curve instead of to the inside; while there was drainage, such drainage was slower than if the proper cross-slope and superelevation were used. Funds to correct the superelevation were not made available in 1991 or prior to the collision, but were made available after the collision. DOT did not maintain the road with the designed superelevation or cross-slope from 1989 until after the July 15, 1992 collision; however, DOT was able to find the funds and do the work within three weeks of the collision.

Plaintiff introduced evidence of prior similar cases of vehicles hydroplaning in the area prior to the collision. The evidence of a number of prior incidents of vehicles hydroplaning at this location prior to July 15, 1992, was testified to by eyewitnesses. Such testimony was similar to the testimony of Stafford regarding the collision, showing that the negligent maintenance was the concurrent proximate cause of the collision.

“Generally, evidence of subsequent repairs following an injury is not admissible on the trial of negligence cases, the usual purpose of such evidence being as a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence. [Cits.] Chastain v. Fuqua Indus., 156 Ga. App. 719, 722 (3) (275 SE2d 679) (1980). The reason for excluding such evidence lies in sound public policy that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. Ga. Southern &c. [R. Co.] v. Cartledge, 116 Ga. 164, 168 (1) (42 SE 405) (1902).” (Punctuation omitted.) Studard v. Dept. of Transp., 219 Ga. App. 643, 644-645 (2) (466 SE2d 236) (1995); accord Evans v. Dept. of Transp., 226 Ga. App. 74, 76-77 (3) (485 SE2d 243) (1997); Ratliff v. CSX Transp., 219 Ga. App. 53, 54 (1) (464 SE2d 1) (1995); Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 77 (4) (460 SE2d 532) (1995); Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681 (178 SE2d 543) (1970).

The Supreme Court of Georgia recognized that no evidentiary rule is absolute, even the non-admissibility of evidence of subsequent remedial action. In Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657) (1983), the Supreme Court held: “It is generally presumed that evidence of subsequent repair is submitted by plaintiffs for the purpose of showing that the defendant recognizes and admits his negligence. Flowers v. Slash Pine Elec. Membership Corp., 122 Ga. App. 254 (3) (176 SE2d 542) (1970). If submitted for some other purpose, however, it may be admissible in a particular case. ‘Such testimony may, in proper circumstances, be admitted for other purposes . . .’ and the jury instructed as to the purpose for which it is received. Stuckey’s Carriage Inn v. Phillips, [supra].” In Studard v. Dept. of Transp., supra at 645, this Court indicated, that “[although we have allowed certain exceptions to this rule,” it is in the sound discretion of the trial judge in making such determination as to whether to admit or deny evidence of subsequent remedial action as coming within an exception.

The exceptions to the rule include, inter alia, “when the subsequent repair, change, or modification tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on. (Cit.) Such evidence may also be admitted where the feasibility of repair or modification is an issue. (Cit.) Wilson Foods [Corp. v. Turner], supra at 77-78 (4).” (Punctuation omitted.) Royals v. Ga. Peace Officer Standards &c. Council, 222 Ga. App. 400, 401 (1) (474 SE2d 220) (1996); see also Brooks v. Cellin Mfg. Co., supra at 397; Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 396 (339 SE2d 619) (1985); Chastain v. Fuqua Indus., supra at 722; Stuckey’s Carriage Inn v. Phillips, supra at 687.

The evidence that, after the collision, the superelevation and proper cross-slope were restored to the pre-1989 condition as called for under the 1931 design plans was relevant and material to show that the absence of such conditions was negligent maintenance and that the restoration was not a change in condition within the evidentiary rule. This case is analogous to Medi-Clean Svcs. v. Hill, 144 Ga. App. 389, 393-394 (5) (241 SE2d 290) (1977), in which a safety guard had been removed for repair prior to the injury but restored immediately after the injury. “[T]his was not actually evidence of a change in a condition following an accident. It had been the normal circumstance for the guard to be on the machine prior to the accident.” Id. In this case, there was a substantial passage of time between the elimination and restoration of the superelevation and proper cross-slope, but it had been knowingly and consciously done for lack of funding; lack of funds cannot be a defense to improper maintenance, because such defense would deter the proper repairs to eliminate the risk of danger just as surely as the admissibility of subsequent remedial repairs.

“A trial court must apply this exception most judiciously to preserve continued viability of the strong public policy against the introduction of evidence of remedial measures for purposes of proving negligence; nevertheless, due consideration must be given that the remedial action rule was not designed as a shield [to prevent admission of probative evidence as to other issues]. ... As with the issue of relevancy, the admission of remedial evidence under [any reasonable and probative] exception lies in the sound discretion of the trial court (Studard [v. Dept. of Transp.], supra) and will not be reversed absent manifest abuse. Further, a trial court in its discretion can [admit or] exclude remedial evidence, though otherwise admissible under [any] exception, if its probative value is substantially outweighed by the risk that its admission will unduly prejudice or mislead the jury or confuse , the issues being tried. [Studard v. Dept. of Transp., supra at 645].” (Punctuation omitted.) Royals v. Ga. Peace Officer, supra at 401-402.

In this case, the trial court, at two pretrial hearings, heard extensive argument as to the admissibility of the subsequent remedial repairs and the exceptions under which the evidence was being proffered. The trial court exercised its sound discretion, not in a suddenly raised evidentiary ruling, but after reasonable reflection, consideration of the proffers of evidence, and citation of applicable law. The trial court did not abuse its discretion in finding such evidence came within an exception to the rule on subsequent remedial measures evidence.

2. The second enumeration of error is that the trial court erred in its charge to the jury regarding subsequent remedial measures. We do not agree.

The general objection to giving any charge on subsequent remedial measures has been addressed in Division 1.

The trial court gave an adequate limiting charge to the jury in their restrictive application of the evidence of subsequent remedial repair: “but that evidence of subsequent repairs is admissible only to show, if it does show . . . Evidence of the later or subsequent repairs also was admitted by the Court for the limited purpose of showing, if it did show. . . .” (Emphasis supplied.) Such charge adequately limited the jury’s use of such evidence for those purposes only.

The DOT’s objections made before the trial court after the charge had been given to the jury were as follows: “DOT objects to No. 53 as it deals with the issue of subsequent remedial repairs as according to our motion in limine in this case. That evidence is not admissible. Furthermore, this charge shows that . . . the subsequent remedial measures [evidence] was given for the purpose of showing knowledge of a dangerous condition or it says that’s why subsequent remedial measures were allowed.

“DOT employees stated their knowledge as to the conditions of the highway in this case. The subsequent remedial measure would not show the condition of the highway at the time of this accident as the subsequent remedial measure was done after the accident.

“DOT objects to Request No. 55 which is also subsequent remedial measures request. . . . First of all it unduly emphasizes the subsequent remedial measures. Secondly, it was given for the purpose of — to show what the condition was at the time — at the present time and not the condition of the road at the time of Ms. Cannady’s accident. The condition of the road at the time after Ms. — the only issue in this case is the condition of the road at the time of Ms. Cannady’s accident. The issue — the condition of the road after this accident is not relevant and neither is this charge.”

Neither any written request to charge nor the DOT objection before the trial court raised as a ground for the objection that the jury should have been cautioned as to the limited purpose for which the evidence was received, which the trial court in fact did, and that the trial court failed to admonish the jury not to consider the evidence of subsequent remedial measures as either an awareness or admission of negligence, so that the trial court could cure the grounds for objection made. Thus, the objection was defective in that it did not specifically point out the grounds for the objection and failed to state such grounds. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8 (195 SE2d 417) (1973). To instruct the jury not to consider evidence of subsequent remedial repairs as evidence of admission or awareness of negligence may, in fact, focus the jury’s attention on that very issue sought to be avoided. Therefore, the instructions given focused the jury’s attention on the only permissible use of such evidence and away from such evidence being considered for an inappropriate purpose; there was no harm.

The DOT has an affirmative duty under OCGA § 5-5-24 (a) to make proper objections that state “distinctly the matter to which [it] objects and the grounds of [its] objection,” a standard which requires a high degree of clarity in the objection. Turner v. Taylor, 179 Ga. App. 574 (346 SE2d 920) (1986); Stone v. Burell, 161 Ga. App. 369 (288 SE2d 636) (1982).

The objection made in the brief was not the objection made at trial; failure to make the specific objection at trial acted as a waiver of such grounds for appellate review. Henderson v. Glen Oak, Inc., 179 Ga. App. 380 (346 SE2d 842) (1986), aff’d, 256 Ga. 619 (351 SE2d 640) (1987); see also Pierce v. Pierce, 241 Ga. 96 (243 SE2d 46) (1978); Jackson v. Meadows, 157 Ga. App. 569 (278 SE2d 8) (1981); Wright v. Dilbeck, 122 Ga. App. 214 (176 SE2d 715) (1970).

Further, the appellate decisions relied upon gave only directory instructions to the trial court that, if the remedial measure is admitted, then proper limiting instructions should also be given when the evidence is admitted; the appellate decisions did not hold that failure of the trial court to so instruct the jury was reversible error. Wilson Foods Corp. v. Turner, supra at 78; Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 882 (447 SE2d 302) (1994); Stuckey’s Carriage Inn v. Phillips, supra at 687. The better practice would be to give limiting instructions at the time of admission of such evidence, as well as the same instructions at the time of the final charge to the jury.

The trial court did not err in its instructions to the jury.

3. The third enumeration of error is that the trial court erred in not giving a proper curative instruction to plaintiff’s opening statement that Stafford had settled with her for $100,000. We do not agree.

DOT objected to the plaintiff’s telling the jury in the opening statement the amount of the settlement and that they were to subtract such amount from any figure that they arrived at as a verdict. DOT objected, stating: “That is not the law in this State. I know we are not dealing with the evidence, but I object to her telling the jury something that is not the law of the State.”

Now DOT admits in its brief that the trial court had two options to deal with the Stafford settlement: the first option required that the jury be informed of the amount of the settlement and told to subtract such sum from any sum that they determined to award, which option the plaintiff sought to exercise and to which DOT objected; the second option required the court to reduce the verdict prior to judgment by the amount of settlement as a set-off and not to reveal the settlement or the amount to the jury. Ford Motor Co. v. Lee, 237 Ga. 554, 555-556 (2) (229 SE2d 379) (1976); Carney v. JDN Constr. Co., 206 Ga. App. 785, 787 (2) (426 SE2d 611) (1992); King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 847-849 (2) (380 SE2d 481) (1989); see Patterson v. Lauderback, 211 Ga. App. 891, 893 (2), n. 1 (440 SE2d 673) (1994).

By objecting to the lawful option that plaintiff sought to follow, DOT forced the use of the second option after the jury had already been apprised of the settlement and the amount, but no evidence had been introduced, as in Carney v. JDN Constr. Co., supra. This objection is induced error on the part of DOT, if error existed at all. On the insistence of DOT not to use the first option but to use the second option, the trial court gave a curative instruction to the jury to disregard the opening statement of plaintiff’s counsel in such regard. DOT did not object to such instruction nor move for a mistrial; DOT, through counsel, stated, “Thank you, your Honor,” and remained silent. Overnight, DOT had second thoughts; it moved for mistrial the next day, which was untimely. DOT could have, anytime prior to the jury returning a verdict, requested the trial court to instruct the jury, in light of what the jury had been told in opening statement under option one, that the case with Stafford had been settled for $100,000 and that they should deduct such sum from any award that they made to the plaintiff, which is what plaintiff wanted to do. However, DOT took no such action to protect itself from any remote possibility of prejudice not cured by the trial court’s instructions. Carney v. JDN Constr. Co., supra; King Cotton, Ltd. v. Powers, supra at 849. Consistent with the DOT’s election of option two, the trial court, in the final jury charge, again instructed the jury to disregard any statements made regarding the Stafford settlement, without mentioning the settlement amount. DOT did not object to this instruction, either, and failed to preserve any error for appellate review.

Further, this case did not come within Carney v. JDN Constr. Co., supra, because no evidence was ever introduced regarding the settlement, and the jury was repeatedly instructed to disregard the statement that Stafford’s case had been settled for $100,000. The trial court did not err.

4. The fourth enumeration of error is that the trial court erred in failing to conform its judgment against DOT with the language of OCGA § 50-21-23. We agree.

OCGA § 50-21-23 (a) reads in pertinent part: “The state waives its sovereign immunity for the torts of the state officers and employees while acting within the scope of their official duties . . . and shall be liable for such torts in the same manner as a private individual . . . provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” OCGA § 50-21-29 (b) states in pertinent part: “In any action or claim for damages brought under the provisions of this article, no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence.” (Emphasis supplied.)

In the descriptive caption of Ga. L. 1992, p. 1883, the Georgia Tort Claims Act reads in part: “to provide limitations on the amount and types of damages and interest recoverable.” The caption and OCGA § 50-21-29 (b) mandate that a judgment cannot exceed $1,000,000 for one person; what it mandates is that a “person shall not recover a sum exceeding $1 million,” in damages. OCGA §§ 50-21-30; 50-21-31. Thus, a judgment cannot be entered that exceeds $1,000,000 in damages, the maximum allowable recovery. OCGA §§ 50-21-29 (b); 50-21-31. Interest is not part of such damage recovery; however, the interest will accrue until the judgment is satisfied by payment of the $1,000,000 in tort damages only upon the maximum recovery or a judgment less than the maximum. OCGA § 50-21-31 reads: “In all cases where judgment is obtained under this article, the judgment shall bear interest from the date judgment is entered at the rate of 7 percent per annum.”

The trial court set-off the $100,000 Stafford settlement against the verdict of $2,750,000 and entered judgment for $2,650,000; therefore, interest can run only on the maximum recovery of $1,000,000. The General Assembly provided for post-judgment interest substantially less than the 12 percent for other judgment debtors and barred pre-judgment interest entirely; but to deter the State from delaying the satisfaction of judgments or taking unreasonable time on appeals, interest accrues only on the maximum recoverable judgment until satisfied. See OCGA §§ 7-4-12; 9-12-10; 50-21-30; 50-21-31; Heath v. L. E. Schwartz & Sons, 203 Ga. App. 91 (416 SE2d 113) (1992); Henley v. Mabry, 125 Ga. App. 293 (187 SE2d 309) (1972).

In Dept. of Human Resources v. Phillips, 268 Ga. 316 (486 SE2d 851) (1997), the Supreme Court addressed the retroactive application of the OCGA § 50-21-29 (b) limitation on recovery and the binding effect of the pretrial order applying such recovery limitation. For purposes of this case, the Supreme Court held that “recovery” and judgment were synonymous; the statutory limitation on recovery did mandate the entry of judgment for the limited recovery maximum, instead of based upon the verdict. “In this appeal from a plaintiffs’ verdict in a wrongful death action, we determine that the parties stipulated in the pretrial order that the Georgia Tort Claims Act’s cap on damages recoverable against the State was applicable to their action, thereby limiting the damages that could be awarded to no more than $1 million per plaintiff. Thus, the trial court erred by entering judgment awarding the two plaintiffs in this case a total of $3.5 million.” Id. The two plaintiffs were the statutory beneficiaries of the decedent and the legal representative, who recovered respectively $2,000,000 for the full value of the decedent’s life and $1,500,000 for the decedent’s pain and suffering prior to death. All the damages were either directly for or derivative of a single person, coming within the recovery limitation of OCGA § 50-21-29 (b). While the trial court’s interpretation of “recovery” and “judgment” as being different so as . to avoid the effect of the limitation and permit the interest to accrue on the sum returned in the verdict was persuasive, we are compelled to adhere to the broader prohibition of the Supreme Court.

Decided February 13, 1998

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Eric A. Brewton, Assistant Attorney General, Franklin, Taulbee, Rushing, Bunce & Brogdon, James B. Franklin, for appellant.

Edenfield, Cox & Classens, Gerald M. Edenfield, Susan W. Cox, Eschol L. Davis, Jr., for appellee.

The trial court erred in entering a judgment in excess of the statutory maximum; the judgment of the trial court is reversed and the case is remanded with instructions to conform its judgment for the plaintiff to the legal allowable amount provided in OCGA § 50-21-29 (b) with interest on such judgment in compliance with OCGA § 50-21-31.

Judgment reversed and remanded with instructions.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A98A0005.
    BEERS CONSTRUCTION COMPANY et al. v. DOYLE et al.
    (496 SE2d 921)
   Pope, Presiding Judge.

This Court granted the discretionary appeal in this workers’ compensation case to determine whether a general contractor may be the statutory employer of a subcontractor’s employee who is injured at the subcontractor’s shop and not the actual project site.

In October 1990 Beers Construction Company entered a subcontract agreement with Archie Nix for millwork to be done on a construction project at the Henrietta Egleston Hospital for Children. Beers required its subcontractors on the project to carry workers’ compensation insurance for their employees. After the millwork was completed, problems developed that Nix had to correct, including replacement of certain materials and re-laminating cabinets. On December 19, 1994, one of Nix’s employees severed three fingers while cutting laminate and cabinet pieces for the corrective work on the Egleston project. The injury occurred at Nix’s shop and not at the Egleston project site.

Nix did not have workers’ compensation coverage at the time of the injury, and the employee filed this claim against Beers on the grounds that Beers was his statutory employer. The ALJ, Appellate Division, and superior court all rejected Beers’s defense that it could not be the statutory employer because the injury did not occur on the project site over which it had control. The Appellate Division specifically found that as the subcontract contemplated that some of the cabinet work would be performed at the subcontractor’s shop, then the shop constituted part of the premises on which Beers had undertaken to execute its work under its contract with Egleston.

OCGA § 34-9-8 (a) provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” But OCGA § 34-9-8 (d) limits the application of this Code section only to “cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.” Manning v. Ga. Power Co., 252 Ga. 404 (314 SE2d 432) (1984).

In finding that the premises on which Beers had undertaken to execute work included, the subcontractor’s shop, the State Board relied upon American Mut. &c. Ins. Co. v. Fuller, 123 Ga. App. 585 (181 SE2d 876) (1971). However, that case involved a trucking company that subcontracted with another company for the actual interstate transport of the load, and the subcontractor’s employee who drove the rig was injured in South Carolina. Considering those circumstances, this Court found the principal trucking company to be the statutory employer of the subcontractor’s employee because the highways were the “premises” upon which the principal trucker had undertaken to execute work. That conclusion may have been warranted where the parties were truckers and the contracted work was the interstate transportation of goods, but Fuller does not support a proposition that where partial performance of a subcontract may occur on the subcontractor’s premises instead of the project site, then the subcontractor’s premises are those on which the principal contractor undertook to execute work within the meaning of OCGA § 34-9-8 (d).

Decided February 13, 1998.

Goodman, McGuffey, Austin & Lindsey, C. Wade McGuffey, Jr., for appellants.

W. A. Nix, pro se.

Harry W. Krumenauer, for appellees.

Smith, Currie & Hancock, Philip E. Beck, amicus curiae.

In this case, it was uncontroverted that Beers had no actual control or management over Nix’s workshop. The traditional quid pro quo for extending workers’ compensation liability to a principal contractor as a statutory employer is the immunity from tort liability. Wright Assocs. v. Rieder, 247 Ga. 496 (277 SE2d 41) (1981). However, Beers certainly would have no risk of tort liability for the injury that occurred in the subcontractor’s workshop, and finding Beers to be the statutory employer of the subcontractor’s injured employee subjects Beers to workers’ compensation liability without any correlative benefit. Imposing workers’ compensation liability on a principal contractor for an injury that occurred at a location over which it had no control, and thus could not affect the risks, would render the contractor an insurer, which surely was not the intent of the Workers’ Compensation Act.

In summary, as the injury occurred at the subcontractor’s workshop, and not on, in, or about premises on which Beers as principal contractor undertook to execute work or which otherwise were under its control or management, the superior court erred in affirming the State Board’s finding Beers to be the statutory employer of the subcontractor’s injured employee.

Judgment reversed.

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


author: Judge Harold R. Banke.

text:
    A98A0093.
    JACKSON et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (497 SE2d 58)
   Judge Harold R. Banke.

William J. Jackson, Sr. instituted legal action under the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.) against the Georgia Department of Human Resources (“DHR”) on behalf of his three children. He alleged that the Butts County Department of Family & Children Services (“DFCS”) was negligent and grossly negligent when it placed his minor children with an unqualified relative for a five-week period. Jackson claimed that DFCS failed to conduct any investigation of the suitability of the relative’s home and failed to provide adequate financial assistance to the relative thereby engendering neglect and abuse. Jackson alleged that DFCS ignored repeated requests to transfer the children to an uncle, a more suitable relative. Jackson sought damages for the children’s purported physical and emotional injuries that resulted from DFCS’s placement decision. DHR claimed that DFCS’s placement determination was discretionary in nature and entitled to immunity. Asserting that Jackson’s tort claims were foreclosed by sovereign immunity, DHR moved for judgment on the pleadings. Jackson appeals the judgment awarded to the DHR. Held:

In his sole enumeration of error, Jackson contends that the trial court erred in granting judgment because the facts set forth in his complaint presented a cognizable negligence action based on DFCS’s failure to properly perform ministerial duties. We disagree.

As a general rule, damages are not recoverable against the State absent a waiver of sovereign immunity. State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993). Under the Tort Claims Act, the legislature provided that “[t]he state shall have no liability for losses resulting from: (2) [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” OCGA § 50-21-24 (2). The legislature defined “[discretionary function or duty” as “a function or duty requiring a state . . . employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

It is well established that a discretionary act, as opposed to a ministerial act, calls for the exercise of personal deliberation and judgment, entailing “ ‘examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ ” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). In contrast, a ministerial act “is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Id.

Just as the decision to discharge a mental patient falls within the ambit of a “discretionary function,” so too does the decision to place children in a particular home setting. See Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 537 (1) (469 SE2d 786) (1996). In making judgments on where to place children, caseworkers must consider the paramount concern of the best interests of the child, while assessing the possibility of appropriate placement with relatives, the suitability of alternative foster homes, as well as a multitude of social and economic factors. Here, the DFCS’s caseworker’s decision concerning the placement of these children, who had been removed from their mother’s custody, necessarily involved the exercise of discretion and personal judgment. See Hemack v. Houston County School Dist., 220 Ga. App. 110, 113 (469 SE2d 679) (1996).

Decided February 13, 1998.

Ham, Jenkins, Wilson & Wangerin, Kevin A. Wangerin, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Patricia Guilday, Jennifer D. Roorbach, Assistant Attorneys General, for appellee.

“Absent evidence of malice, wilfulness, or corruption, a public officer is afforded immunity from liability to those who may be injured by the exercise of his discretion in the performance of his official duties. [Cit.]” McDay v. City of Atlanta, 204 Ga. App. 621, 622 (2) (420 SE2d 75) (1992). In this case, Jackson did not allege any malice, wilfulness, or corruption on the part of DFCS but premised his claims in négligence. Because DHR was entitled to immunity as to all of Jackson’s claims for money damages, the trial court properly granted judgment on the pleadings. OCGA § 9-11-12 (c). See Christensen v. State of Ga., 219 Ga. App. 10, 13 (6) (464 SE2d 14) (1995); see also Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 463 (489 SE2d 568) (1997).

Judgment affirmed.

Birdsong, P. J, and Smith, J., concur.


author: Johnson, Judge.

text:
    A98A0618.
    HONIKER v. THE STATE.
    (497 SE2d 70)
   Johnson, Judge.

On July 26, 1996, Christian Honiker was arrested and issued three citations. Two were uniform traffic citations charging him with driving under the influence and defective equipment. These citations scheduled an appearance in the Probate Court of Henry County for September 5, 1996. The third citation charged Honiker with “disorderly conduct-marijuana,” apparently a violation of a Henry County ordinance, and scheduled an appearance in the Magistrate Court of Henry County for August 1, 1996.

When Honiker failed to appear in magistrate court, his bond was forfeited and a guilty plea was entered on the “disorderly conduct-marijuana” charge. OCGA § 15-10-63.1 (b). Honiker appeared in the probate court and pled not guilty to the other two charges. He was subsequently indicted on charges of driving under the influence of alcohol and possession of less than an ounce of marijuana. Honiker filed a plea of autrefois convict, asserting the prosecution is barred by double jeopardy. The motion was granted with regard to the possession of marijuana charge, but denied as to the driving under the influence charge. From this ruling Honiker appeals.

Decided February 13, 1998.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Sandra A. Graves, Assistant District Attorneys, for appellee.

Honiker’s contention that the trial court erred in denying his plea of autrefois convict as to the DUI charge is without merit. The citation charging Honiker with “disorderly conduct-marijuana” is not a part of the record on appeal. “A plea of former jeopardy which does not set forth a copy of the accusation on which it is alleged the accused was previously tried is fatally defective.” (Citations and punctuation omitted.) State v. Fowler, 182 Ga. App. 897 (357 SE2d 329) (1987). Furthermore, based on the briefs of the parties, we presume that the “disorderly conduct-marijuana” charge arises from a violation of a county ordinance.. But this Court cannot take judicial notice of county ordinances, and we do not know the elements of Henry County’s “disorderly conduct-marijuana” offense, or even if such an ordinance exists. Therefore, the plea of double jeopardy, which neither included a copy of the citation nor set out the ordinance, is too indefinite to support appellate review. A trial court’s ruling will be affirmed if it is right for any reason. See Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A97A2072.
    BILLY CAIN FORD LINCOLN MERCURY, INC. v. KAMINSKI.
    (496 SE2d 521)
   Johnson, Judge.

Sonya Kaminski filed this action against Billy Cain Ford Lincoln Mercury, Inc. (“the dealership”), alleging intentional fraud and deceit, violations of the Georgia Fair Business Practices Act (“FBPA”), and breach of express warranty. According to her complaint, Kaminski went to Billy Cain’s Cornelia dealership and purchased what was represented to her as a 1989 Chevrolet Silverado pickup truck. However, subsequent incidents involving repair of the truck and its parts, as well as a title history, revealed that the truck was a GMC rather than a Chevrolet. According to the complaint, analysis of the title history and additional documentation of the vehicle indicated that the Cornelia dealership and its agents had both notice and knowledge that the truck was not a Chevrolet, yet they deceptively misrepresented and sold the truck as a Chevrolet to Kaminski.

The dealership failed to file a timely answer, and the trial court denied its motion to open default. Following a trial on damages, the jury returned a verdict in favor of Kaminski in the amount of $2,823.70 for breach of warranty and found that Kaminski was entitled to exemplary damages. The jury then heard evidence as to that issue and returned a verdict in favor of Kaminski in the amount of $50,000 for exemplary damages.

In accordance with the default judgment and the jury verdict, the trial court’s judgment awarded the following relief to Kaminski: The contract between the parties was rescinded; FBPA damages in the amount of $10,913.29 in actual damages; $9,295 in attorney fees, expenses of litigation and court costs; $50,000 in exemplary damages; and $2,823.70 in breach of warranty damages. The dealership appeals. We affirm.

1. In its first enumeration of error, the dealership contends the trial court erred in denying its motion to open default. OCGA § 9-11-55 (b) allows the trial court, in its discretion, to open a default for providential cause preventing the filing of the required pleading, for excusable neglect, or when the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, if four conditions are met: (1) a showing by the movant under oath, (2) an offer to plead instanter, (3) an announcement of ready to proceed to trial, and (4) the setting up of a meritorious defense. The statute also requires that costs be paid. OCGA § 9-11-55 (b).

The record shows that nearly three months after service and one day before the scheduled hearing concerning damages on the default, the dealership filed a motion to open default, alleging failure of service and failure to name the proper party as defendant. Following a hearing on the motion, the dealership amended its motion to open default, filing an answer with this amendment and purportedly curing its deficiencies under the default statute. The trial court denied the dealership’s motion, concluding that the dealership failed to show sufficient grounds for opening the default.

The evidence at the hearing showed that the dealership was served through Hilda Anglin, secretary to Billy Cain, who placed the documents on Cain’s desk. Anglin assured the serving officer that she would “make certain” Cain received the summons and complaint. The dealership had been served with civil process perfected upon Anglin in the past. The evidence further disclosed that the documents remained on Cain’s desk for two and one-half months without action. Notwithstanding the dealership’s arguments that Anglin is a mere servant, we cannot conclude that the trial court abused its discretion in finding that service on Anglin was proper and that no excusable neglect occurred under the circumstances.

“In addition to service on a registered agent, OCGA § 9-11-4 (d) (1) allows service on the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof. In order for an employee to be authorized to accept service on behalf of a corporation, it is necessary that the employee’s position be such as to afford reasonable assurance that [s]he will inform [her] corporate principal that such process has been served upon [her].” (Citations and punctuation omitted.) Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (2) (442 SE2d 795) (1994).

The dealership also argued that its motion to open default should have been granted due to manifest injustice because the party named was improper. The record shows that the dealership has waived any objection to the misnomer due to its failure to object in the consolidated pretrial order regarding proper parties in interest. See Williams v. Safeway Ins. Co., 223 Ga. App. 93, 94 (476 SE2d 850) (1996) (the pretrial order controls the scope of trial, and an issue omitted from the pretrial order is waived).

Moreover, misnaming a party in the pleadings is a defect which may be waived where the misnamed party is in fact the legally cognizable proper party in interest. See Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983). The pleadings in the present case name “Billy Cain Ford Lincoln Mercury, Inc.” as the defendant, a misnomer combining two separate corporations, Billy Cain Ford Mercury, Inc. and Cain Ford Lincoln Mercury of Cornelia, Inc. It is undisputed that Billy Cain is the registered agent for both these corporations, that the transaction at issue involved Cain Ford Lincoln Mercury of Cornelia, Inc., that Billy Cain owns both corporations, that he is president of both corporations, and that he is the major stockholder of both corporations. Since the trial court correctly determined that Billy Cain was properly served in this action as the registered agent, the trial court did not abuse its discretion in failing to grant the dealership’s motion to open default on the ground that a manifest injustice in misnaming the dealership had occurred.

Furthermore, even if a party has met all the prerequisites for opening a default under OCGA § 9-11-55 (b), the trial court has broad discretion in deciding whether or not to open the default, and its decision not to open a default will not be interfered with unless that discretion is manifestly abused. See Daniel v. Causey, 220 Ga. App. 589 (1) (469 SE2d 839) (1996). We find no such abuse of discretion in the present case.

2. In its second enumeration of error, the dealership asserts the trial court erred in denying its motion for a directed verdict as to the issue of consequential and incidental damages. These damages related to Kaminski’s breach of warranty claim. See OCGA § 11-2-715.

A buyer is entitled to incidental damages resulting from the seller’s breach of warranty which include “expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses, or commissions in connection with effecting cover, and any other reasonable expense incident to the delay or other breach.” OCGA § 11-2-715 (1). In addition, a buyer is entitled to recover consequential damages, which include “[a]ny loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and [i]njury to person or property proximately resulting from any breach of warranty.” OCGA § 11-2-715 (2).

Kaminski testified in detail at trial regarding the various expenses she incurred as a result of problems she experienced with the truck. These expenses included miscellaneous parts she had to purchase for the truck and the rental of a vehicle to get to work. Thus, there was sufficient evidence to submit the issue of these damages to the jury. See B & D Carpet &c. Co. v. Gunny Corp., 158 Ga. App. 621 (281 SE2d 354) (1981).

3. The trial court did not err in denying the dealership’s motion for a directed verdict on the issue of damages recoverable under the FBPA. The dealership asserts that no evidence was presented at trial to show that the public interest would be served by the action, so its motion for a directed verdict on this issue should have been granted. We disagree.

At the outset, we note that the dealership’s liability under the FBPA was conclusively established through default when it failed to timely answer Kaminski’s complaint. Thus, the dealership cannot on appeal address the merits of its liability under the FBPA. Even if liability had not been conclusively established through default, however, there was sufficient evidence presented by Kaminski to show that the public interest would be served by allowing her action against the dealership to proceed. The record shows that the pickup truck was advertised to the public and ultimately sold to a member of the public. A reasonable trier of fact could further find from the evidence that the dealership knew the truck was not of the make and model as represented. “Offering a product for sale by opening one’s door to the general public should trigger the prohibitions of the act if some deceptive act or practice were involved.” Benchmark Carpet Mills v. Fiber Indus., 168 Ga. App. 932, 934 (311 SE2d 216) (1983).

Kaminski presented evidence of a violation of the FBPA by showing that before the truck was sold in the consumer marketplace, the dealership was placed on reasonable notice that the make and model were not as represented and thereafter failed to take reasonable measures to ascertain the true state of facts concerning the truck’s correct make and model prior to selling the vehicle to an innocent purchaser. See generally Crown Ford v. Crawford, 221 Ga. App. 881, 883 (1) (473 SE2d 554) (1996). Construing the evidence to support the verdict and judgment, as we are required to do on appeal, and applying the requisite standard for directed verdict, we are satisfied that the trial court did not err in failing to grant the dealership’s motion for directed verdict. See Regency Nissan v. Taylor, 194 Ga. App. 645, 648 (2) (391 SE2d 467) (1990).

4. In its fourth enumeration of error, the dealership contends the trial court erred in admitting into evidence receipts for repairs and replacement parts for the truck because the receipts named non-parties as payors for the repairs and purchases. Rather than arguing whether the admission of these receipts was proper, however, the dealership has reframed its enumeration in its brief, arguing that Kaminski failed to provide evidence of her actual expenses. It is well established that statements in the briefs cannot enlarge or alter the scope of review to include issues not reasonably contained in the enumeration of error. See Mobley v. Sewell, 226 Ga. App. 866, 869 (487 SE2d 398) (1997); Jabaley v. Jabaley, 208 Ga. App. 179, 180 (2) (430 SE2d 119) (1993); City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493) (1988). Furthermore, any enumeration of error which is not supported in the brief by citation of authority or argument is deemed abandoned. Court of Appeals Rule 27 (c) (2). Accordingly, we may not properly address this enumeration.

5. The trial court did not err in denying the dealership’s motion for a directed verdict as to the issue of exemplary damages under the Fair Business Practices Act. OCGA § 10-1-399 (a) provides that a FBPA cause of action can be brought “to recover . . . general and exemplary damages sustained as a consequence [of acts or practices prohibited by the FBPA]; provided, however, exemplary damages shall be awarded only in cases of intentional violation.” As we have already noted, based on the effect of the default judgment as to liability and the additional evidence presented by Kaminski, the jury was authorized to find that the dealership knew the make and model of the truck were not as represented. Contrary to the dealership’s argument, detailed evidence of actual damages was offered by Kaminski. There was sufficient evidence for a rational trier of fact to conclude that Kaminski sustained actual damages not fully recoverable through rescission of the contract and return of the purchase price. Thus, the trial court correctly denied the dealership’s motion for a directed verdict on this ground. See generally Regency Nissan, supra; Colonial Lincoln-Mercury Sales v. Molina, 152 Ga. App. 379, 381 (6) (262 SE2d 820) (1979). The dealership’s contention that the verdict form should not have provided a space for indicating an award of exemplary damages, if any, also lacks merit for these same reasons.

6. In two enumerations of error, the dealership contends the trial court erred in failing to charge the jury with language taken directly from statutes related to tort damages. Specifically, the dealership requested the following charges: (1) “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer,” and (2) “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence are too remote and contingent to be recovered.” According to the dealership, these charges were “directly on point because [Kaminski] failed to prove her case for damages.” However, as we have already noted, Kaminski did provide evidence of actual damages, and the evidence of damages was not speculative, conjectural or remote.

A charge must be adjusted to the pleadings and the evidence and must not be so phrased as to have a tendency to confuse and mislead the jury or to becloud the issues in the case. Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 33 (3) (479 SE2d 363) (1996). The trial court did not err by failing to include these requested charges since the charges were not adjusted to the evidence and would not have assisted the jury in reaching a decision on the damage issues in the case.

Moreover, while the dealership contends its instructions were necessary to inform the jury “as to their duties in reviewing the evidence and sufficiency of same for an award of damages,” the trial court’s charge to the jury substantially and sufficiently covered these principles. Hence, there was no error in the denial of these requests to charge. See Lehman v. Zuckerman, 198 Ga. App. 202, 205 (6) (400 SE2d 704) (1990).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided January 29, 1998

Reconsideration denied February 16, 1998

Adams, Ellard & Frankum, Cadman R. Kiker, Jr., Jennifer L. Thacker, for appellant.

Verdery & Oliver, William R. Oliver, Cindy M. Franklin, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A2579.
    HENDRIX v. THE STATE.
    (497 SE2d 236)
   Birdsong, Presiding Judge.

Harold Hendrix, a/k/a Harold Hendricks, appeals his conviction of one count each of child molestation, cruelty to children, and aggravated sexual battery of his nine-year-old adopted daughter. Appellant enumerates eight errors. Held:

1. The trial court did not err in ruling that appellant’s pre-arrest statement was non-custodial, voluntary, and admissible at trial. A female employee of the county DFACS investigated the child molestation allegations; appellant had been named as the alleged perpetrator by his daughter. The employee contacted appellant and requested that he come down to the local police station. Although the employee did not advise appellant of the specific allegations made against him, she did inform him who she was and that “there had been some allegations” made. Appellant immediately went to the police station of his own free will; no threats or promises were made to get him to do so. When he arrived, appellant was taken to a small interview room, without windows, located in the interior of the building. For reasons of privacy, the interview was not conducted in the lobby; the counsel room was not used as someone had been locking the counsel chamber doors. Appellant did not appear to be under the influence of drugs or alcohol at the time of the interview. According to protocol, appellant was interviewed by the employee in the presence of a female police investigator. The officer was dressed in khaki pants with a button-down oxford shirt; although she had a badge, the officer was not carrying any weapon. Appellant was introduced to the DFACS employee and to the police investigator and then informed of the allegations made against him. At no time during the interview process was he informed of his right to counsel, of his right to remain silent, or told that anything he said could be used against him. Appellant was not placed under formal arrest, he was not in handcuffs and, although not so informed, he was free to leave the station at any time. Except for a few questions asked at the end of the interview by the police officer, the interview was conducted by the DFACS employee. Appellant responded voluntarily to questions regarding the allegations made against him, and the DFACS employee then set up a “safety plan,” as she had done with the child’s mother. Thereafter, appellant departed the station in the same manner in which he had arrived; he was not charged or detained at that time. Appellant was arrested the next day. Appellant testified that, at the police station, he did not feel that he was free to come and go if he wanted to, because he had never been in trouble before and did not know what rights he had or what to do.

The trial court ruled appellant’s pretrial statement could be admitted in evidence and held that appellant was free to leave the police station at any time, he was not in custody, the statement was not taken during a custodial interrogation, and his “statement was freely and voluntarily given without the slightest hope of benefit or remotest fear of injuries. . . . No promises were made to him.”

“[T]he issue presented, as to whether appellant was in custody for Miranda purposes, is a mixed question of law and fact. We will not reverse the trial court’s fact findings which underpin its legal conclusion made at a suppression hearing, unless they are clearly erroneous.” Whatley v. State, 196 Ga. App. 73, 78 (5) (395 SE2d 582). A person is not in a state of custody merely because he is a prime suspect at the time he is interrogated by the police or their agent. See Vaughn v. State, 261 Ga. 686, 687 (2) (410 SE2d 108). Even if the police have probable cause to arrest at the time of the interview and secretly intend to charge the suspect at some future time, such facts are immaterial to a determination of whether the suspect was in custody at the time of the interview, except when and to what extent the police communicate their future intent to arrest during the course of the interview. State v. Brannan, 222 Ga. App. 372, 376 (2) (c) (474 SE2d 267). “ Miranda warnings are not required simply because questioning takes place in a building containing jail cells.’ ” Id. at 375. A suspect must be in a custodial situation for Miranda to apply; a suspect is not entitled to Miranda warnings, as a matter of right, unless he has been taken into custody or has been deprived of freedom of action in another significant way. Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95); Carroll v. State, 208 Ga. App. 316, 317 (2) (430 SE2d 649). The cases cited by appellant in support of this enumeration of errors are distinguishable. The real issue for adjudication “is whether the individual was formally arrested or restrained to the degree associated with a formal arrest.” Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16). In resolving this issue, the “relevant inquiry is how [a] reasonable person in suspect’s position would perceive his situation” (Hodges, supra, citing Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317)); that is, “whether a reasonable person in [appellant’s] position would have understood the situation to constitute restraint on freedom of movement of the degree which the law associates with formal arrest.’ ” Manchester v. State, 226 Ga. App. 653, 655 (1) (487 SE2d 449). Applying these standards to the evidence before us, we conclude the trial court’s finding that the appellant’s statement was voluntarily made under noncustodial circumstances was not clearly erroneous. Compare Hodges, supra; Vaughn, supra; Manchester, supra.

2. Jury instructions must be read and considered as a whole in determining whether a charge contained error. Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177). Absent a remedial instruction, reversible error can occur if a jury charge recites the entire statutory definition of a crime, thereby informing the jury that a crime may be committed in more than one manner, when the indictment avers that the crime was committed only in one specific way. Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (court failed to give a remedial instruction limiting jury’s consideration to the manner in which the offense was averred to have been committed in the indictment); but compare Green v. State, 221 Ga. App. 694 (2) (472 SE2d 457). In this instance, the trial court did not err in charging the entire language of OCGA § 16-5-70 (b), pertaining to the offense of cruelty to children, as the jury was also given an instruction which confined the elements of the crimes charged to those “material allegation[s] in the indictment.” McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756).

3. In its aggravated sexual battery charge, the trial court pertinently instructed the jury that: “A child under the age of 16 cannot consent to sexual acts. . . . [L]ack of consent is proved by evidence of the [child’s] age.” Appellant’s contention that the trial court violated OCGA § 17-8-57 by instructing the jury that the State had “proved” lack of consent, a material element of aggravated sexual battery, is without merit. The trial court did not instruct the jury that the State had proved lack of consent. When the charge is viewed in its totality and in the context given (see, e.g., Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704)), it becomes apparent that the trial court did not express a personal opinion as to the state of the evidence but rather instructed that, in regard to lack of consent to an act of sexual battery, a child under age 16 cannot consent to sexual acts and that lack of consent is proved by evidence of the child’s age. (It was left for the jury to determine the child’s age based on the evidence before it.) Under the facts of this case, this charge was an accurate statement of the law. Luke v. State, 222 Ga. App. 203, 205-206 (1) (b), n. 2 (474 SE2d 49); compare Strickland v. State, 223 Ga. App. 772, 774 (1) (a), 776-777 (1) (b) (479 SE2d 125); see also Phagan v. State, 268 Ga. 272 (486 SE2d 876). The trial court did not violate the provisions of OCGA § 17-8-57 when, as here, it simply charges on a point of law. Willis v. State, 214 Ga. App. 479, 481 (5) (448 SE2d 223).

Decided December 9, 1997

Reconsideration denied February 16, 1998

Kathleen J. Anderson, Kevin R. Christopher, William D. Hedían III, for appellant.

This holding is consistent with the previous recognition of appellate courts that “[b]ecause children do not have the capacity to give consent to or resist a sexual act directed at them, such acts ‘are, in law, forcible and against the will’ of a child.” (Emphasis supplied.) Brown v. State, 268 Ga. 154, 155 (486 SE2d 178); Richardson v. State, 256 Ga. 746, 747 (2) (353 SE2d 342). Cf. Daniel v. State, 194 Ga. App. 495, 497-498 (391 SE2d 128) (modern sexually transmitted disease creates new dimension to legal question of intelligent and informed consent to a sexual act by a child).

4. It constitutes an act of aggravated sexual battery for a person to penetrate intentionally and without consent the sexual organ of another with his finger or other foreign object. Burke v. State, 208 Ga. App. 446 (1) (430 SE2d 816); OCGA § 16-6-22.2. We find penetration however slight will suffice to satisfy the statutory penetration element of OCGA § 16-6-22.2; penetration may be proved by indirect or circumstantial evidence. Cf. Ortiz v. State, 222 Ga. App. 432 (1) (474 SE2d 300) (only slight penetration required for rape). The trial court did not err in charging the jury that “penetration of the child’s sex organ need only be slight.”

5. The testimony of the child victim, the adults to whom the child made statements about appellant’s conduct, and the statement which appellant made to the DFACS employee in the presence of a police investigator established facts from which the jury could conclude beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of child molestation, cruelty to children, and aggravated sexual battery of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.