text:
    A89A2158, A89A2159.
    CITY OF LAWRENCEVILLE v. HEARD et al.; and vice versa.
    (391 SE2d 441)
   Sognier, Judge.

Charles and Frances Heard brought suit against the City of Lawrenceville on a claim of continuing nuisance, alleging damage to their property resulting from excessive surface water runoff. The jury returned a verdict of $29,000 in damages and $10,000 in attorney fees against the City. Upon the City’s motions for new trial and for judgment n.o.v., the trial court granted the j.n.o.v. motion with respect to the award of attorney fees and entered judgment for $29,000. Both parties appeal.

Construed to support the jury’s verdict, the evidence adduced at trial disclosed that in August 1970, the Heards moved into their newly constructed house on Brandy Creek Circle in unit seven of the Forest Hills subdivision in Gwinnett County. At the time of their purchase, the area north of and behind their home, which sloped uphill from their lot, was wooded and undeveloped, as was the property to the east. A creek ran in a westerly direction through the front yard approximately sixty feet from the house. On the east side of their house, the Heards constructed a gravel turnaround for their driveway and a dam and pond in the creek. They also added a garden in the back northeast corner of the property. In the mid-1970s, unit ten of the Forest Hills development was built to the east of the Heards’ home, and the subdivision of Windsor Farms was developed to the north. The surface water drainage facilities for Windsor Farms included a catch basin on Windsor Court, the street north of the Windsor Farms lots abutting the rear of the Heards’ property, with a culvert running through those lots to a point of discharge approximately 140 feet north of the Heards’ rear property line. The drainage system for units seven and ten of Forest Hills included catch basins and storm drain culverts to the east of the Heards’ house on Summit Ridge Road and Brandy Creek Circle. After completion of these projects, the drainage structures, easements, and streets were dedicated to and maintained by the City.

Mr. Heard testified that they began having increased surface water runoff in the mid-1970s, with water flowing onto their property from the Windsor Farms property north of the house and also coming down the creek from Forest Hills and over their dam at a greatly increased volume and velocity. He stated that as a result their garden topsoil washed into the pond, the gravel in the turnaround was displaced during heavy rains, and the dam and pond continued to widen and erode despite his attempts to reinforce the dam. Heard testified that he first noticed water in his basement in 1978, and that despite the installation of two sump pumps the basement still floods whenever a heavy rain causes the creek to fill. Heard also stated that his house has developed warped, uneven floors and numerous cracks in the masonry chimney and foundation since the drainage problems began.

Both parties presented testimony from engineers concerning the source of the surface water and its effect on the Heards’ yard and house. Thomas Moore, the Heards’ civil and structural engineer, stated he concluded from his inspection of the site and analysis of the relevant drainage basin that the masonry cracks resulted from settlement due to saturated subsurface soils and that the damage to the floors was attributable either to this settlement or to moisture in the basement. Moore concluded that the drainage problems were a result of improper design of the storm water drainage system for Windsor Farms in that there were no detention ponds, and inadequate maintenance of the drainage structures by the City. Specifically, he testified that the catch basins at Summit Ridge Road and Brandy Creek Circle upstream from the Heards’ property were clogged with debris, and that as a result water ran over the catch basins and directly onto the Heards’ property, where it flowed down the front yard into the creek. Moore opined that to remedy the problem, the Heards would have to conduct a hydrology study, construct a detention pond in place of the dam, reinforce the creek banks, run a flume from the Windsor Farms culvert to ¿he detention pond, repair or replace the drainage structure at Brandy Creek Circle, and repair the structural damage to the house. John Mobley, a construction contractor, estimated that this work would cost $48,000. The Heards also presented the deposition testimony of Don Martin, the City’s Superintendent of Utilities, who stated that the City had approved the plans for each subdivision at issue and opined that any increase in surface water drainage was attributable to the development of the area in general rather than to the design of the drainage for the subdivisions.

James Aton, the civil and environmental engineer who testified for the City, concluded from his hydrology study of the drainage basin that the drainage system installed by the subdivision developers did not divert the surface water from its natural flow prior to construction, and that although both the velocity and volume of the water had increased since the developments were built, the Heards’ house sat above the 100-year flood level, and accordingly the basement should not flood as a result of storm water drainage. He testified that the garden likely would have been eroded by the natural flow prior to construction of Windsor Farms, and that the Heards’ installation of the dam and pond raised the ground water elevation of their lot. Aton stated that the subdivisions’ storm water drainage designs met the applicable City regulations and comported with sound engineering practices. He did acknowledge that his study and conclusions assumed proper maintenance of the drainage structures. David Wilson, a geotechnical engineer who performed soil tests on borings taken from around the Heards’ house, testified that the cracks in the house were attributable to differential settlement of the subsurface soils, not to surface water runoff, and that he found no evidence of impairment of the foundation of the house as a result of soil saturation from the drainage problems.

1. In case no. A89A2158, the City contends the trial court erred by denying in part its motion for judgment n.o.v. and in denying its motion for new trial made on the grounds that the damages claimed by the Heards did not result from any act or omissions of the City, and that the Heards’ evidence as to the structural damage of their house was speculative because Moore conducted no soil tests.

We do not agree. As the City has acknowledged, “[t]he failure of a [city] adequately to maintain a culvert, resulting in property damage from flooding, can constitute a nuisance. [Cit.]” Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984). Moreover, combined with failure to maintain drainage structures, the approval of upstream development which results in a nuisance arising from increased surface water runoff can give rise to municipal liability. Id.; see City of Columbus v. Myszka, 246 Ga. 571, 572 (1) (272 SE2d 302) (1980). Here, as in Wheaton, there was testimony that the City had failed to maintain the culverts upstream from the Heards’ property, and that accumulated debris was causing the drainage structures to overflow into their yard. In addition, Martin testified that any increased surface water drainage was attributable to development in the area, which had been approved by the City. While the Heards’ expert, Moore, stated that the surface water problem also resulted in part from inadequate storm drainage management by both subdivision developers, the jury’s decision to award only sixty percent of the damages sought by the Heards may reflect their assessment of that testimony. Moreover, although Moore’s opinion that the structural damage resulted from excessive soil saturation was contradicted by the testimony of Wilson, which was based upon soil tests, “[t]his court does not pass upon the credibility of witnesses, nor the weight to be given evidence on disputed facts. These are questions for the jury. Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against its weight, is a question the law vests in the trial judge’s discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.” (Citations and punctuation omitted.) Pierce v. Taylor, 190 Ga. App. 819, 820 (1) (380 SE2d 351) (1989). There being some evidence to support the jury’s verdict as to damages for nuisance, we find no reversible error.

Decided February 20, 1990.

Erwin, Epting, Gibson & McLeod, Malcolm C. McArthur, for appellant.

L. Thomas Cain, Jr., for appellees.

2. The Heards assert in their cross-appeal that the trial court’s decision to grant judgment n.o.v. to the City on the issue of attorney fees was erroneous. They cite Myszka, supra, and Columbus, Ga. v. Smith, 170 Ga. App. 276 (316 SE2d 761) (1984) in support of their argument that attorney fees are recoverable in nuisance actions against municipalities even absent proof of bad faith or other ground delineated in OCGA § 13-6-11.

This argument is without merit. In Georgia, attorney fees are recoverable only when authorized by statute or by contract. E.g., Money v. Thompson &c. Machinery Co., 155 Ga. App. 566, 567 (271 SE2d 699) (1980). In Myszka, supra at 573 (5), the Supreme Court found that under the facts of the case, the jury’s award of attorney fees was authorized under former Ga. Code Ann. § 20-1404 (now OCGA § 13-6-11). Because in Smith, supra at 282 (2), this court did not specifically address the award of attorney fees, but held only that Myszka authorized the damages awarded by the jury, we find no support for the Heards’ contention. As there was no other basis for an award of attorney fees in this action, see generally Peachtree Purchasing v. Carver, 189 Ga. App. 73, 75-76 (2) (374 SE2d 834) (1988), we affirm the trial court’s ruling. See OCGA § 9-11-50; see generally United States Fid. &c. Co. v. Blankenship &c. Co., 153 Ga. App. 335, 336-337 (2) (265 SE2d 66) (1980).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A2301.
    MAZ MEDICS, INC. v. SATELLITE ADVERTISING SYSTEMS, INC.
    (391 SE2d 446)
   Carley, Chief Judge.

Appellee-plaintiff contracted to produce and have aired certain television commercials for appellant-defendant’s business. The contract contained a liquidated damages provision and, after appellant breached the contract, appellee brought suit. The trial court, sitting as the trior of fact, found that the liquidated damages provision of the contract was enforceable. Judgment was entered for appellee and appellant appeals from that judgment.

Decided February 20, 1990.

Charles L. Day, for appellant.

Steven M. Youngelson, Leslie J. Cardin, for appellee.

1. Appellant enumerates the general grounds, urging that the contractual provision for liquidated damages is an unenforceable penalty.

“[A]t trial, the burden is on the defaulting party to show that the provision is a penalty. [Cit.] . . . [T]he enforceability of a liquidated-damages provision in a contract is a question of law for the court. . . which necessarily requires the resolution of questions of fact.” Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989). The evidence authorized the trial court to find that appellee’s damages would be difficult to assess with accuracy, that the parties’ intent was to provide for damages rather than a penalty, and that the amount specified was a reasonable pre-estimation of appellee’s probable loss. Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976). See also Daniels v. Johnson, 191 Ga. App. 70, 71 (1) (381 SE2d 87) (1989).

2. Appellant’s second enumeration of error regarding the trial court’s award of prejudgment interest is without merit. OCGA § 7-4-15; Considine Co. of Ga. v. Turner Communications Corp., 155 Ga. App. 911, 915 (6) (273 SE2d 652) (1980).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A0246.
    CAIL v. THE STATE.
    (391 SE2d 444)
   Banke, Presiding Judge.

The defendant appeals his convictions of aggravated assault and possession of a firearm during the commission of a crime. Held:

1. The victim of the assault was only three years of age at the time of its commission. The defendant complains that, in view of the child’s tender age and the lack of any actual dispute over the nature of his injuries, the state should not have been allowed to exhibit him to the jury for the purpose of displaying the scar from his wound. The victim’s tender age was not, of course, a circumstance for which the state was responsible. “The injuries sustained in an aggravated assault are relevant to that assault and therefore admissible. . . . ‘The Georgia courts have said many times that relevant evidence is not subject to an objection that it might inflame the minds of the jury or prejudice the jury and this is true even where the offered evidence is only cumulative.’ ” Sprouse v. State, 242 Ga. 831, 833 (252 SE2d 173) (1979), quoting from Agnor’s Georgia Evidence, § 10-2, p. 165. This enumeration of error is accordingly without merit.

Decided February 20, 1990.

William R. Folsom, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

2. The defendant contends that the trial court erred in charging the jury on the elements of murder. The court gave those instructions in connection with a charge that aggravated assault may be committed by assaulting with intent to murder, rape or rob or by assaulting with a deadly weapon. See OCGA § 16-5-21. The defendant argues that the interjection of the issue of murder into the trial was prejudicial to him because the indictment did not allege an assault with intent to murder but only an assault with a deadly weapon.

This enumeration of error establishes no ground for reversal for two reasons. First, the trial court corrected the asserted error by recalling the jury after they had begun their deliberations and instructing them to confine their considerations “to the indictment as it’s charged here, that is, assault with a deadly weapon. ...” Second, because there was no dispute over the fact that the victim had been shot with a firearm, to the extent the jury may have been misled by the instructions in question they could only have been misled into believing a more stringent standard of proof was required on the issue of criminal intent than was actually the case. “ ‘Appellant cannot complain of a charge which is beneficial to him.’ Hance v. State, 245 Ga. 856 (4) (268 SE2d 339) (1980).” Hood v. State, 187 Ga. App. 88 (369 SE2d 348) (1988).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A89A1852.
    JUSTICE v. DAVIDSON KENNEDY COMPANY et al.
    (391 SE2d 414)
   Carley, Chief Judge.

After he was awarded workers’ compensation income benefits, Donald Justice entered into a proposed lump-sum settlement agreement with appellees employer and insurer. On the day following submission of the settlement agreement for approval by the Board of Workers’ Compensation (Board), Justice died in an automobile collision unconnected with his employment. Before the Board could act on their lump-sum settlement agreement with the late Justice, appellees withdrew their consent thereto. Justice’s appellant-widow nevertheless sought to have the Board enforce the withdrawn settlement agreement. When the Board refused, appellant appealed unsuccessfully to the superior court. Pursuant to this court’s grant of appellant’s application for a discretionary appeal, she appeals from the superior court’s affirmance of the Board’s refusal to enforce the withdrawn settlement agreement.

“Ordinarily persons sui juris may adjust their differences upon such terms as they may be able to mutually agree upon. The policy of the law is to encourage such compromises, to the end that litigation may be avoided. This freedom of contract, however, does not exist with reference to claims for compensation arising under the workers’] compensation act, since the right of employers and employees to adjust their differences is limited and restricted by the terms of the statute. The statute provides: ‘Nothing . . . contained [in this chapter] shall be construed so as to prevent settlements made by and between the employee and employer, but rather to encourage them, so long as the amount of compensation and the time and manner of payment are in accordance with . . . this [chapter]. A copy of [any] such settlement agreement shall be filed by the employer with the [Board], and no such settlement shall be binding until approved by the [Board].’ [OCGA § 34-9-15]. This provision of the statute, in unmistakable terms, imposes two conditions which are essential to a valid settlement between employer and employee: First, that the time and manner of payment must be in accordance with the provisions of the workfers’] compensation act; and, second, that the agreement must be approved by the [Board]. The section just quoted manifestly refers to settlements entered upon before any award of compensation is made by the [Board], but the same rule applies after such an award is made. . . . [Moreover, OCGA § 34-9-222] not only restricts the right of the parties to contract for a lump-sum settlement of an award of compensation, but in express terms provides that such contracts must be approved by the [Board]. The sections of the act just referred to are binding upon both employer and employee.” Tillman v. Moody, 181 Ga. 530, 531-32 (1) (182 SE 906) (1935).

“OCGA § 34-9-15 provides the sole method by which claims arising under the Workers’ Compensation Act may be settled.” Caldwell v. Perry, 179 Ga. App. 682, 683 (1) (347 SE2d 286) (1986). Indeed, “it is the [B]oard’s agreement and approval of the settlement which is the active agent which renders the settlement binding [and] . . . which constitutes ‘a complete and final disposition of all claims.’ ” Denton v. U. S. Fid. &c. Co., 158 Ga. App. 849, 851 (282 SE2d 350) (1981). Thus, any settlement that may be reached between an employer and his employee represents no more than their proposed mutual offer to settle, which offer must be accepted and approved by the Board before a binding settlement agreement between them is created. In the absence of such a mutual offer, there is nothing for the Board to accept and approve. Appellees withdrew their consent to the mutual offer before the Board could accept and approve it. “A settlement agreement is not binding, though filed with the [B]oard, until it has been approved. [Cit.]” Taylor v. Sunnyland Packing Co., 112 Ga. App. 544, 546 (145 SE2d 587) (1965). It follows that there was never a binding settlement agreement the enforcement of which appellant would be entitled to seek.

Decided February 5, 1990

Rehearing denied February 21, 1990

Kenneth J. Rajotte, for appellant.

Daniel C. Kniffen, for appellees.

“[W]e think the workers’] compensation act deprives the parties to an award of compensation of the right to contract for a lump-sum settlement in any matter other than that provided for by [OCGA § 34-9-222]. Accordingly, if the lump-sum settlement herein dealt with was not approved by the [Board], it... is not binding upon the parties . . . .” Tillman v. Moody, supra at 534 (1). See also Caldwell v. Perry, supra at 683 (1). The superior court correctly affirmed the Board’s refusal to enforce the settlement agreement which was withdrawn prior to its approval.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A1982.
    WHIDDON v. SPIVEY.
    (391 SE2d 421)
   McMurray, Presiding Judge.

This is a medical malpractice action in which summary judgment was awarded to defendant physician on the ground that the statute of limitation expired before plaintiff filed suit.

Because plaintiff’s leg had been fractured in an automobile accident, defendant, an orthopedic surgeon, performed a surgical procedure known as open reduction, internal fixation, right lateral tibial plateau, upon plaintiff on May 29, 1985. In performing the procedure, defendant inserted a 16 mm. threaded screw and washer in plaintiff’s leg. This device was inserted to hold bone fragments in a fixed position during the healing process.

Thereafter, on December 8, 1986, defendant performed a second surgical procedure to remove the screw from plaintiff’s leg. The washer was not removed at that time.

Because the pain in her leg continued, plaintiff went to a second physician and learned that the washer was still in her leg. Subsequently, on July 8, 1987, the washer was excised by the second physician.

Over one year later, on December 1, 1988, plaintiff brought this medical malpractice action. Defendant answered, asserting, inter alia, a statute of limitation defense. Thereafter, defendant moved for summary judgment asserting the action was barred by the one-year limitation statute pertaining to a “foreign object.” See OCGA § 9-3-72.

In support of his summary judgment motion, defendant submitted an affidavit wherein he deposed, in part: “At the time of the May 29, 1985, surgery, the screw inserted with the washer in place constituted a ‘fixation device.’ The screw actually holds in a fixed position the bone or the pieces of the bone fragments, and the purpose of the washer is to keep the screw from being drilled or working itself too far into the bone. The washer is external to the bone although the screw is inserted through or into the bone holding the bone pieces together in a fixed position. After the fracture of the plaintiff . . . healed, on December 8, 1986, I performed a surgical operation that involved: (1) arthroscopic exam of the right knee, (2) lateral retinacular release of the right knee, and (3) removal of the screw in the right proximal tibial. As part of that surgery, I removed the screw in the right proximal tibial, but decided, exercising the degree of care and skill exercised in the medical profession in general under the same or similar circumstances, not to perform the additional surgical exploration and dissection needed for the removal of the washer. I reasonably made a medical judgment during surgery that the presence of the washer, which was no longer acting as a fixation device after the screw was removed and was no longer putting any pressure on the knee, should not cause plaintiff any problem, and there were advantages to not doing the additional surgical exploration and dissection necessary to remove the washer. . . .”

The trial court granted defendant’s motion for summary judgment and plaintiff appealed. Held:

OCGA § 9-3-72 provides: “The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purposes of this Code section, the term ‘foreign object’ shall not include a chemical compound, fixation device, or prosthetic aid or device.” Interpreting this Code section, the Supreme Court of Georgia ruled that “in a foreign object claim, the patient has one year following discovery of the foreign object to bring his complaint, no matter whether the date of discovery is within or beyond the limitation period provided by OCGA § 9-3-71.” Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490). Thus, in the case sub judice, plaintiffs claim is barred if it is deemed a “foreign object” claim even though the action was filed within two years of the second surgical procedure in which the screw, but not the washer, was removed. Ringewald v. Crawford W. Long Mem. Hosp., supra. Is plaintiff’s claim a “foreign object” claim?

In Ivey v. Scoggins, 163 Ga. App. 741 (295 SE2d 164), this Court decided that a suture placed and left in a ureter during surgery was a “foreign object” and the applicable statute of limitation is one year after discovery of the act. In so deciding, this Court ruled: “Dr. Scoggins performed a hysterectomy upon Mrs. Ivey who has alleged that he negligently sutured the ureter leading to her left kidney. We are aware of no medical justification or reasonable explanation for such occurrence during the course of a hysterectomy, and Dr. Scoggins’ evidence provides none. He simply asserts a lack of actual knowledge on his part regarding the presence of any suture in the subsequently blocked ureter. Therefore, we hold that, as in this case, where the plaintiffs have alleged the placement of an internal suture during the course of a surgical procedure in an organ or other tissue not ordinarily involved in that procedure and the defendant physician has presented no evidence that the presence of the suture is the result of proper medical procedure, the suture is a ‘foreign object’. ...” Id. at 743. (Emphasis supplied.) Our holding in that regard was based on the rationale of Dalbey v. Banks, 245 Ga. 162 (264 SE2d 4), wherein the Supreme Court held that the “foreign object” statute of limitation refers “to objects placed in the patient’s body during some medical procedure in such a fashion that the physician may be charged with knowledge that the object is lodged there. Where a physician places a foreign object in his patient’s body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiff’s claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing.” (Emphasis supplied.) Dalbey v. Banks, 245 Ga. 162, 163, 164, supra.

In the case sub judice, unlike the defendant in Ivey v. Scoggins, 163 Ga. App. 741, supra, defendant did not simply leave an object in his patient’s body. Rather, defendant made a conscious decision in the exercise of his professional judgment to leave the washer in plaintiff’s leg. Thus, plaintiff’s claim rests on defendant’s professional diagnostic judgment or discretion and the two-year statute of limitation found in OCGA § 9-3-71 applies. The trial court erred in ruling otherwise.

Judgment reversed.

Carley, C. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Been, P. J., Banke, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

Plaintiff’s claim is that it was negligent to leave the washer in her leg when the surgeon took the screw out. It is undisputed that screw and washer constituted a fixation device. Plaintiffs position is that the washer should also have been removed at the same time because it was no longer functioning as a fixation device, when the screw was removed, and it was no longer needed for that or any other purpose; it ceased performing a beneficial purpose in her leg and instead was detrimental. She had it surgically removed. Defendant agrees with all except the allegation that due care required the washer’s removal.

Since there is no dispute that the object introduced into plaintiff’s leg ceased functioning as part of a fixation device at the time the negligent act is alleged to have occurred, it became a “foreign object” as that term is contemplated in the law, and OCGA § 9-3-72 applies.

The medical opinion of the patient’s expert that the washer was a fixation device even after removal of the screw does not squeeze into the exception to the “Foreign objects left in the body” provision of the Code, as the very foundation gist of her claim is that it became a foreign object, legally speaking; without proving that it was such and that care meeting medical standards required its removal, she could not prevail. The defense that it was not a “foreign object” in the sense that it indisputedly had to be removed, such as in Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302 (368 SE2d 490) (1988), does not extract the claim from OCGA § 9-3-72. That is, it is a claim falling within that Code section despite the fact that the primary issue is whether it was negligent to leave the object in. That issue does not change the nature of the object. The term “foreign object” does not have a legislated definition and thus, under the rules of construction, must be given its common meaning. Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (4) (327 SE2d 736) (1985). See Collins v. Intl. Indem. Co., 256 Ga. 493, 495 (349 SE2d 697) (1986), for an application of the rule.

Action against the doctor who left it must be filed within one year of the time the patient discovered its presence when the claim is that due medical care required its absence. This follows from the rationale employed in Balbey v. Banks, 245 Ga. 162 (264 SE2d 4) (1980), Ringewald, supra, and Ivey v. Scoggins, 163 Ga. App. 741 (2) (295 SE2d 164) (1982). Balbey makes the distinction between hidden objects in the body, such as the glass in Banks’ hand the doctor was unaware of, which are governed by the two-year statute, and objects placed in the body by the doctor with knowledge, which are governed by the one-year statute. In Widdon’s case, as in Ringewald, the object at first served a valid medical purpose in the patient’s body, but when it ceased performing such, it became a foreign object subject to suit revolving around whether it was negligent to leave it in.

Decided February 7, 1990

Rehearing denied February 21, 1990

Taylor & Harp, J. Sherrod Taylor, Jefferson C. Callier, for appellant.

Jones, Cork & Miller, Thomas C. Alexander, Brandon A. Oren, for appellee.

Plaintiff discovered the washer had been left in her leg not later than the date of its removal on July 8, 1987. The action filed December 1, 1988, was beyond the time provided by law. OCGA § 9-3-72. The fact that the one-year limit expired before the otherwise applicable two-year limit of OCGA § 9-3-71 does not change the result. Ringewald, supra.

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


text:
    A89A2190.
    A89A2191.
    PORTER et al. v. BELOIT CORPORATION. OWENS-ILLINOIS, INC. et al. v. BELOIT CORPORATION.
    (391 SE2d 430)
   McMurray, Presiding Judge.

Defendant Beloit Corporation entered into a contract for the installation of a “turn key” Rader Displacement Heating System at the Valdosta paper mill of defendant Owens-Illinois, Inc. This project was the first commercial scale implementation of a new paper making process which saves energy by storing and re-using the heat used to digest wood chips. The contract covered the retrofit of nine existing wood chip digesters to accommodate the new system, addition of a new tenth wood chip digester, and installation of a multifunction process control system to provide for automated control of the revised system. Defendant Beloit Corporation served as general contractor for the project and in turn contracted with various sub-contractórs, including McAbee Construction Company.

On February 4, 1985, the number 10 digester was placed in operation for a test or “shake down” procedure. During this test operation the number 10 digester contained wood chips and caustic chemicals under high pressure and superheated. A blow line in the system became clogged with wood chips which required the shutdown of the number 10 digester. During the shutdown, portions of the control system were removed and replaced, resulting in the opening of valves which permitted the contents of the number 10 digester to flow into a warm liquor accumulator tank, a non-pressurized or atmospheric vessel which was not rated to withstand the pressures then existing in the number 10 digester. The warm liquor accumulator tank was unable to withstand the pressure and ruptured, spewing extremely hot caustic liquids and vapors.

When the warm liquor accumulator tank erupted, Robert M. Porter, an employee of McAbee Construction Company, was working approximately 15 feet away, suspended above the floor in a boatswain’s chair. He was drenched with the caustic liquid, suffered chemical and thermal burns to approximately 70 percent of his body, and died from his injuries five days later.

On January 30, 1987, plaintiffs Steven Porter and Michael B. Porter filed this action seeking damages for the wrongful death of Robert M. Porter, their father. Plaintiff Michael B. Porter also seeks to recover damages in his representative capacity, as administrator of his father’s estate, for Robert M. Porter’s pain and suffering prior to his death, funeral expenses, medical expenses, and for punitive damages. Plaintiffs’ complaint prays for a judgment against defendants Owens-Illinois, Inc., Bailey Controls Company, Bailey Controls International & Services Co., Inc., The Babcock & Wilcox Company, Mc-Dermott, Inc., McDermott International, Inc., and Beloit Corporation.

Defendant Beloit Corporation filed a motion for summary judgment contending that workers’ compensation provided plaintiffs’ sole remedy for the death of their father. Two appeals were filed from the grant of defendant Beloit Corporation’s motion for summary judgment. Plaintiffs appeal in Case Number A89A2190. Defendants Owens-Illinois, Inc. and Bailey Controls Company appeal in Case Number A89A2191. Held:

1. The motion of defendant Beloit Corporation to dismiss the appeal of defendant Bailey Controls Company, Inc. due to a lack of standing to appeal is denied. This motion was predicated on the supposition that under Merritt v. McCrary, 162 Ga. App. 825, 826 (1), 827 (292 SE2d 920), a defendant’s assertion of a right to contribution against another defendant must be made by cross-claim or waived. However, this requirement was not stated in this Court’s decision and there was no cross-claim filed in that case.

2. Defendant Beloit Corporation as statutory employer of Robert M. Porter under OCGA § 34-9-8 was, under OCGA § 34-9-11, immune from tort liability for his death. Wright Assoc, v. Rieder, 247 Ga. 496, 497 (1) (277 SE2d 41). Nonetheless, appellants in the cases sub judice contend that the grant of summary judgment was error since plaintiffs’ complaint states a products liability claim pursuant to OCGA § 51-1-11, which is, they argue, beyond the scope of OCGA § 34-9-11. In other words, appellants contend that plaintiffs’ claim against Beloit Corporation in its capacity as designer and manufacturer of the Rader Displacement Heating System, as opposed to its capacity as statutory employer, is not barred by OCGA § 34-9-11.

Appellants’ argument is an invocation of the “dual capacity doctrine” which has been defined “as that theory under which an employer who normally enjoys immunity from common law and statutory liability under the exclusive remedy provision of workers’ compensation law may become liable to an employee when acting in a capacity outside the employer-employee relationship, which capacity may impose obligations apart from those imposed as an employer.” 9 ALR 4th 873, 875 (note 2). Although the dual capacity doctrine flourished for a brief time in a small number of states, application of the concept has been curtailed more recently as it is recognized that the doctrine has been expanded beyond that point at which it ceases to be fundamentally sound. Larson’s Workmen’s Compensation Law, § 72.80 et seq., Vol. 2A. The surviving portion of the concept, which Professor Larson suggests should be renamed “dual persona doctrine,” is that “[a]n employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.” Larson’s Workmen’s Compensation Law, § 72.81, Vol. 2A.

We decline appellants’ invitation to adopt the dual capacity doctrine insofar as it removes employer immunity where claims, such as those in this case, are predicated upon a mere separate relationship or theory of liability. Any such claim against an actual or statutory employer, whether by an employee, his personal representative, parents, dependents, or next of kin, is not an action against a “third-party tort-feasor” which avoids the immunity provided under OCGA § 34-9-11. As defendant Beloit Corporation has no separate legal persona such as would invoke the “dual persona doctrine” this is not an appropriate case to consider adoption of this more narrow version of the dual capacity doctrine. The superior court did not err in granting summary judgment in favor of defendant Beloit Corporation.

Judgments affirmed.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The dissent in Landrum v. Cobb County Concrete Prods., 191 Ga. App. 805 (383 SE2d 144) (1989), found the issue here sufficiently raised by the pleadings and agreed with the appellant that the statutory employer who is the manufacturer of the allegedly defective or deficient product is not made immune from a product liability claim by OCGA §§ 34-9-8 and 34-9-11. However, that opinion gained no other adherents in either respect and thus I am compelled to concur.

Decided February 8, 1990

Rehearing denied February 21, 1990

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, G. Stuart Watson, Dawn G. Benson, for Porter.

Young, Young & Clyatt, F. Thomas Young, Daniel C. Hoffman, for Beloit.

Alexander & Vann, William C. Sanders, George T. Talley, Edward F. Preston, for Owens-Illinois.


text:
    A89A2219.
    THE STATE v. HOWELL.
    (391 SE2d 415)
   Carley, Chief Judge.

Appellee was brought to trial on an accusation which alleged, in relevant part, that he “did give his name as being Mark Ryan, a false name[,] to William Jones[,] a law enforcement officer in the lawful discharge of his official duties[,] ... in violation of OCGA Section 16-10-25.” The jury found appellee guilty and the trial court entered a judgment of conviction and sentence on the guilty verdict. Appellee then filed a motion in arrest of judgment on the ground that the accusation had failed to allege that he had given a false name to the law enforcement officer with the specific intent of misleading the officer. The trial court granted appellee’s motion in arrest of judgment and the State appeals.

“[I]t is an elementary rule of criminal procedure that an indictment should contain a complete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence. [Cit.]” Martin v. State, 96 Ga. App. 557, 558 (1) (100 SE2d 645) (1957). To constitute a crime, giving a false name to a law enforcement officer must be accompanied by the specific intent to mislead the officer. The accusation upon which appellee was tried did not expressly allege that appellee had given a false name to the law enforcement officer with that specific intent. The accusation did, however, expressly allege that appellee had given a false name to the law enforcement officer “in violation of OCGA Section 16-10-25.” Compare Ponder v. State, 121 Ga. App. 788 (175 SE2d 55) (1970); Hilliard v. State, 87 Ga. App. 769 (75 SE2d 173) (1953); Rambo v. State, 25 Ga. App. 390 (103 SE 494) (1920). Thus, the accusation in effect incorporated the terms of the applicable code section that appellee was charged with having violated. Appellee could not admit the allegation that his acts were “in violation of OCGA Section 16-10-25,” and yet not be guilty of the offense of giving a false name to a law enforcement officer. Compare Hilliard v. State, supra; Dukes v. State, 9 Ga. App. 537 (71 SE 921) (1911).

Decided February 5, 1990

Rehearing denied February 21, 1990.

Ken Stula, Solicitor, Kip Shepherd, Assistant Solicitor, for appellant.

James W. Smith, for appellee.

“ ‘An indictment substantially in the language of the Code is sufficient in form and substance.’ [Cit.]” (Emphasis supplied.) Wages v. State, 165 Ga. App. 587, 588 (2) (302 SE2d 112) (1983). Considering the factual allegations and the specific incorporation by reference of OCGA § 16-10-25, appellee cannot be heard to contend that he was not sufficiently apprised of the elements of the offense he was charged with having committed, even though the element of the specific intent to mislead the officer was not otherwise expressly alleged. See Rowles v. State, 143 Ga. App. 553, 554 (1b) (239 SE2d 164) (1977). “[W]here the indictment alleges an ‘offense,’ and names and describes the offense in terms of the penal statute, and alleges that the act was ‘unlawfully’ committed, and that it was ‘contrary to the laws’ of the State, and employs language from which it must necessarily be inferred that the criminal intent existed, it is not void because it fails to expressly allege the criminal intent. [Cits.]” (Emphasis in original.) York v. State, 42 Ga. App. 453, 461 (1) (156 SE 733) (1931). The trial court erred in granting appellee’s motion in arrest of judgment.

Judgment reversed.

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


author: Sognier, Judge.

text:
    A89A2266.
    BOLES v. HAMRICK.
    (391 SE2d 418)
   Sognier, Judge.

Curtis Boles brought suit against Dewey Hamrick seeking damages for injuries incurred in an automobile collision. Boles had his insurer, Allstate Insurance Company (“Allstate”) served with a copy of his complaint, apparently upon a theory that Hamrick was an uninsured motorist at the time of the collision alleged in the complaint. Upon Boles’ affidavit that Hamrick could not be found, the trial court authorized service by publication on Hamrick. Hamrick answered and subsequently moved to dismiss Boles’ complaint. The trial court granted the motion to dismiss on the bases of lack of jurisdiction over Hamrick, insufficiency of process and service of process, and the running of the statute of limitation on Boles’ cause of action. Boles appeals.

Appellant concedes in his brief that the trial court’s dismissal of his complaint on the merits as to Hamrick was proper. Appellant’s sole argument is that the dismissal was improper as to Allstate. “[T]his court has interpreted the Uninsured Motorist Act to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, [cit.], or unknown, [cit.].” Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 166 (268 SE2d 676) (1980). Appellant asserts that because Allstate was timely served and because Allstate had answered in its own name, no judgment against Hamrick, the uninsured motorist, was required as a condition precedent to his suit against Allstate. In support of his argument appellant cites the language in Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 834 (305 SE2d 413) (1983) that “[i]n cases where the insurer elects to defend in its own name ... no judgment against the uninsured motorist is required as a condition precedent to a determination of questions of coverage. Moss, supra at 170.” Appellant, however, has misread the context of the language he cites, which addresses the consolidation in the answer filed by the uninsured motorist carrier of the two separate issues typically involved in such circumstances: that of the uninsured motorist’s tort liability and that of the insurer’s liability under the policy to its insured. This court has recognized that “filing of an answer or other response by an insurer in its own name pursuant to OCGA § 33-7-11 (d) does not constitute a waiver of any issues regarding the uninsured motorist’s tort liability but merely reflects the insurer’s position that, regardless of the underlying tort liability, the insurer is not liable under the policy of insurance. [Cits.]” Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 68 (363 SE2d 303) (1987). Thus, the filing of an answer by the uninsured motorist carrier in its own name does not by itself eliminate the requirement that a judgment first be obtained against the uninsured motorist, as a condition precedent to a claim under the policy against the insurer. See id. at 68-69. Contrary to appellant’s assertion, the record establishes clearly that Allstate did not waive any conditions precedent to appellant’s recovery under the policy when it answered appellant’s complaint. Accordingly, the dismissal on the merits of appellant’s complaint as to Hamrick had the ancillary effect of constituting a determination on the merits of appellant’s uninsured motorist claim against Allstate, and thus we find no error in the trial court’s dismissal of appellant’s complaint for the reason enumerated.

Decided February 6, 1990

Rehearing denied February 21, 1990.

Rubin Law Offices, Robert P. Hoyt, for appellant.

Jenkins & Eells, Frank E. Jenkins III, Sharon C. Barnes, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Fred M. Valz III, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2291.
    NATIONAL SURETY CORPORATION et al. v. McDonnell et al.
    (391 SE2d 424)
   Carley, Chief Judge.

A vehicle struck another vehicle which, in turn, struck and seriously injured appellee-plaintiff Mrs. Helen McDonnell while she was standing behind her own vehicle. Appellee Dr. William McDonnell was also slightly injured in the collision. The first vehicle was insured by appellant-defendants under a policy which provided $50,000 in PIP coverage. The second vehicle was insured by Arnica Mutual Insurance Company (Arnica) under a policy which provided $25,000 in PIP coverage. Appellees’ vehicle was insured by United Services Automobile Association (USAA) under a policy which provided $50,000 in PIP coverage. Shortly after their injuries, appellees filed claims, seeking PIP benefits from all three insurers. Erroneously asserting that their policy provided only $5,000 in basic PIP coverage, appellants paid only $2,500 of appellee Mrs. McDonnell’s claim. Eventually, however, she was paid an additional $22,500 in PIP benefits by Arnica and an additional $25,000 in PIP benefits by USAA. Appellee Dr. McDonnell’s small claim for PIP benefits was paid entirely by USAA.

Appellees then filed this suit against appellants, seeking to recover additional PIP benefits, penalties, attorney’s fees and punitive damages. After filing their answer, appellants moved for summary judgment. The trial court denied appellants’ motion, but certified its order for immediate review. Appellants applied to this court for an interlocutory appeal from the denial of their motion for summary judgment and their application was granted.

1. Despite the asserted applicability of three separate policies, appellee Mrs. McDonnell is eligible to receive no more than $50,000 in PIP benefits. Voyager Cas. Ins. Co. v. King, 172 Ga. App. 269 (323 SE2d 4) (1984). She has already been paid $50,000 in PIP benefits, having received $2,500 from appellants, $22,500 from Arnica and $25,000 from USAA. “Though [Arnica and USAA] did not specify for what reason [they] paid [her $47,500], the only logical deduction and plausible conclusion was that [they] paid the [$47,500] as a compromise and settlement of [their] potential liability for [PIP] coverage. [Cit.]” Jefferson-Pilot Fire &c. Co. v. Combs, 166 Ga. App. 274, 276 (304 SE2d 448) (1983).

Appellee Mrs. McDonnell has no viable claim for PIP benefits in excess of $50,000 simply because appellants may have been the primary no-fault carriers and it was appellants, rather than Arnica and USAA, that would have been obligated for the entirety of the $50,000 in PIP benefits which she was otherwise entitled to receive. See Futch v. J. C. Penney Ins. Co., 182 Ga. App. 169, 170 (2) (354 SE2d 869) (1987) (uninsured motorist coverage). Likewise, she has no viable claim for PIP benefits in excess of $50,000 simply because Arnica’s payment of $22,500 was made pursuant to a loan receipt. With but two exceptions, neither of which is applicable here, subrogation as to no-fault benefits is prohibited. See OCGA § 33-34-3 (d) (1). Thus, to give effect to the Arnica loan receipt would be to countenance the indirect accomplishment of that which the law expressly prohibits from being accomplished directly. Accordingly, a loan receipt agreement between an injured party and a no-fault carrier with no subrogation rights must be considered as “an absolute payment and not a loan.” American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 837 (278 SE2d 719) (1981).

Since appellee Mrs. McDonnell has already received the $50,000 in PIP benefits to which she is otherwise entitled, it follows that the trial court erred in denying appellants’ motion for summary judgment as to their liability to her for any additional PIP benefits.

2. The trial court likewise erred in denying appellants’ motion for summary judgment as to their liability to appellee Dr. McDonnell for any additional PIP benefits. His small PIP claim has already been paid. Although the stacking of PIP coverages is permissible, a double recovery of PIP benefits is not. See Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16 (276 SE2d 78) (1981).

3. A review of the record shows, however, that a genuine issue of material fact does remain as to appellants’ liability to appellees for penalties, attorney’s fees and punitive damages. Although appellees were eventually paid PIP benefits, appellants did not affirmatively negate the possibility that those payments were not made in the timely manner required by OCGA § 33-34-6. “[A] consideration of [appellants’] liability under OCGA § 33-34-6 is not precluded by [Arnica’s and USAA’s] eventual payment of no-fault benefits to [appellees] and by [their] acceptance of those benefits.” Baker v. J. C. Penney Cas. Ins. Co., 192 Ga. App. 134, 135 (1) (384 SE2d 233) (1989). If, notwithstanding their purported status as the primary no-fault carriers, appellants are otherwise entitled to claim the benefit of the payments which were made by Arnica and USAA, they must also bear the legal consequences if those payments were made untimely.

Decided February 7, 1990

Rehearing denied February 21, 1990.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Robin L. Peek, Kathryn S. Whitlock, for appellants.

Tony Center, for appellees.

4. The denial of summary judgment is reversed as to appellants’ liability for additional PIP benefits. The denial of summary judgment is affirmed as to appellants’ liability for penalties, attorney’s fees and punitive damages.

Judgment affirmed in part and reversed in part.

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


text:
    A89A2312.
    McCOY v. ALVISTA CARE HOME, INC.
    (391 SE2d 419)
   Sognier, Judge.

Connie McCoy, administratrix of the estate of Dera Thaxton Bryan, brought suit against Alvista Care Home, Inc., an intermediate health care facility, to recover for the wrongful death of Bryan. Judgment was entered on the jury’s verdict for Alvista, and McCoy appeals from the denial of her motion for new trial, enumerating as error the trial court’s charge to the jury on hindsight.

The evidence adduced at trial disclosed that Bryan was admitted to appellee’s facility on October 18, 1985. Bryan, who was seventy-eight years old at the time, was suffering from senile dementia, arteriosclerosis, and the effects of a stroke, which left her confused and disoriented. On at least one occasion, she had wandered away from home and gotten lost. After being admitted to appellee’s facility, she remained confused and disoriented, and frequently left the facility when she was not restrained. Recognizing her tendency to wander away, appellee prepared a health care plan calling for drug therapy to control agitation, physical restraint with appropriate medical devices, and close supervision and monitoring when she was not restrained.

On April 9, 1986, Laura Edwards, the registered nurse in charge of monitoring Bryan’s care, decided that because of the sores Bryan had developed as a result of frequent restraint, she should not be restrained that day. Appellee’s records revealed that Bryan left the facility at least once during the day, whereupon the staff found her and brought her back inside. When the staff began to serve dinner at 5:30 p.m., they discovered that Bryan again was missing. A search of the area around the building proved fruitless. The remains of Bryan’s body were found four months later in a wooded area approximately 1,000 yards from the building.

Two experts engaged by appellant testified at trial that appellee failed to meet the requisite standard of care for Bryan in that she should have been either restrained or closely monitored because of her well documented tendency to wander out of the building, and one of the witnesses found the treatment plan and its implementation inadequate. Appellee’s expert witnesses opined that Edwards’ decision to release Bryan from restraint was proper, and Edwards testified that appellee provided the requisite degree of care and that she would make the same decision again.

Over objection by appellant, the trial court charged the jury that “in a medical malpractice action a defendant cannot be found negligent on the basis of an assessment of a patient’s condition which only later or in hindsight proved to be incorrect as long as the initial assessment was made in accordance with the then reasonable standards of medical care. In other words, the concept of negligence does not encompass hindsight. In other words, negligence consists [of] not foreseeing and guarding against that which is probable and likely to happen not against that which is remotely and slightly possible.” Appellant contends that this charge was erroneous because it was not applicable to the facts adduced at trial.

This hindsight charge was approved in Haynes v. Hoffman, 164 Ga. App. 236, 238 (3) (296 SE2d 216) (1982), a medical malpractice case in which the issue was whether the defendant physician properly had prescribed a drug to which the plaintiff had suffered a severe allergic reaction. The evidence adduced at the trial revealed that the plaintiff had not disclosed her history of allergies to the defendant, and the defendant testified that he would not have prescribed the drug had he known the plaintiff’s complete history. Under those circumstances, this court found the quoted language to be a correct statement of the principle of foreseeability. Similarly, in Jones v. Finley, 170 Ga. App. 182, 184 (1) (316 SE2d 533) (1984), recognizing the Haynes holding that negligence does not encompass hindsight, we concurred with the grant of summary judgment in a medical malpractice case wherein the expert witnesses disagreed with the diagnosis made by the defendant physicians, but stated that their opinions were based upon information not available to the defendants at the time they made the diagnosis at issue.

Decided February 6, 1990

Rehearing denied February 21, 1990

Swearingen, Childs & Philips, Richard A. Childs, for appellant.

George R. Neuhauser, Stephanie L. DeBerry, for appellee.

Here, however, we agree with appellant that the challenged charge was improper because her claim was based on appellee’s failure to provide the requisite standard of care given the information available to and known by appellee at the time Bryan was admitted. Appellant’s contention was that appellee was clearly aware of Bryan’s tendency to wander — and indeed had based its treatment plan on this fact — but did not provide the care necessary to avoid Bryan’s disappearance. The uncontested evidence showed that appellee was fully aware of Bryan’s consistent pattern of wandering, and that Bryan often left appellee’s facility. Appellee’s defense thus was not based on lack of knowledge, but upon its assertions that its care of Bryan was proper under those circumstances. Therefore, appellant’s claim was based on appellee’s alleged “ ‘negligence ... in not foreseeing and guarding against that which is probable and likely to happen,’ ” Haynes, supra at 238 (3), and the charge on hindsight, although correct as an abstract principle of law, was erroneous because it was not supported by the evidence. See Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190, 191 (3) (375 SE2d 142) (1988). “A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to [appellant], and is error requiring the grant of a new trial.” (Citations and punctuation omitted.) Koppar Corp. v. Robertson, 186 Ga. App. 856, 858 (1) (368 SE2d 807) (1988). Accordingly, we reverse the trial court’s denial of appellant’s motion for new trial. See id.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1664.
    A89A1665.
    LOVE v. THE STATE. PEPPERS v. THE STATE.
    (391 SE2d 447)
   Carley, Chief Judge.

Appellants were jointly indicted for battery and for felony obstruction of a police officer. In addition, appellant Love was indicted for public drunkenness. After they were tried before a jury and found guilty of all counts, appellants filed separate notices of appeal but a joint enumeration of errors. The two appeals are hereby consolidated for appellate disposition in this single opinion.

1. The trial court’s refusal to give appellants’ request to charge on self-defense is enumerated as error.

As to the battery count, appellants did adduce evidence that the victim had struck the first blow. However, such evidence, standing alone, would not be sufficient to show that appellants’ subsequent acts of striking the victim were necessarily justified. “It does not follow that the defendant was justified merely because he [struck] after the [victim] had [struck] him. The [victim] might have abandoned the combat, and then the defendant clearly would not have been justified in [striking back]. To constitute a justification, something more must appear than the single fact that the defendant did not [strike] until an attempt had been first made to [strike] him.” (Emphasis in original.) Allen v. State, 28 Ga. 395, 397 (2) (1859). Appellants’ evidence showed only that they had struck the victim in retaliation and not that they had done so in the reasonable belief that striking him was a necessary defensive response to any continuing use of force on his part. See generally Veasley v. State, 142 Ga. App. 863, 866 (6) (237 SE2d 464) (1977). Accordingly, the evidence did not authorize a charge on self-defense as to the battery count and the trial court did not err in refusing to give it.

As to the felony obstruction of a police officer count, the record shows that appellants did not admit committing the obstructionist acts that were alleged in the indictment and then seek to justify those acts as a necessary defense against the police officer’s use of force against them. Rather, appellants testified that they had not committed those alleged obstructionist acts at all. Thus, under the evidence, appellants either committed the alleged acts of obstruction or they did not and no charge on self-defense as to the felony obstruction of an officer count was authorized. See Kitchens v. State, 228 Ga. 624, 625 (2) (187 SE2d 268) (1972); Smith v. State, 144 Ga. App. 766, 767 (2) (242 SE2d 363) (1978). Compare Jackson v. State, 154 Ga. App. 867, 868 (2) (270 SE2d 76) (1980).

2. The trial court’s refusal to give appellants’ request to charge on resisting an unlawful arrest is enumerated as error.

There was no evidence to authorize a finding that appellants’ alleged obstructionist acts had been undertaken as a response to the officer’s efforts to effectuate an arrest, illegal or otherwise. Moreover, as discussed in Division 1, appellants did not admit commission of the alleged obstructionist acts but, rather, denied having committed those acts. There being no evidence to authorize a charge on resisting an unlawful arrest, it was not error for the trial court to refuse to give it.

3. The trial court’s refusal to give the following request to charge is enumerated as error: “I charge you that you may consider evidence of a previous difficulty between a defendant and victim which illustrates the state of feeling between them.”

Decided February 21, 1990.

Walter B. Harvey, for appellants.

Timothy G. Madison, District Attorney, for appellee.

As phrased, the request states no more than a truism. Since testimony concerning prior difficulties between appellant Peppers and the officer had been admitted into evidence, the jury was certainly aware that it was entitled to “consider” that testimony as evidence which illustrated the state of feeling between those two. If appellant Peppers wanted the jury charged on the specific evidentiary purpose for which it would be entitled to consider the state of feeling between himself and the officer, a request for such a charge should have been made. Moreover, insofar as it might be urged that the existence of the prior difficulties was relevant to the issue of self-defense and that the jury should have been instructed that the evidence was admissible for the purpose of showing the reasonableness of appellants’ apprehension of the officer at the time of the commission of the alleged obstructionist acts (see Neal v. State, 160 Ga. App. 498, 500 (2) (287 SE2d 399) (1981)), there was no error. As discussed in Division 1, appellants did not otherwise seek to justify their alleged obstructionist acts on the basis of self-defense, but defended on the basis that they had not committed those acts.

4. The trial court did not err in failing to give a charge on misdemeanor obstruction of an officer as a lesser included offense, since appellants filed no timely written request for such a charge. Stonaker v. State, 236 Ga. 1, 2 (3) (222 SE2d 354) (1976). Moreover, even if such a timely written charge had been requested, it would not have been erroneously refused because, under the evidence, appellants were guilty of felony obstruction of the officer, or they were guilty of no crime at all. See generally Santone v. State, 187 Ga. App. 789, 791 (2) (371 SE2d 428) (1988).

5. The failure to object in the trial court precludes appellate consideration of what appellants urge was an alleged instance of improper closing argument by the State. Allen v. State, 233 Ga. 200, 201 (2) (210 SE2d 680) (1974).

Judgments affirmed.

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


author: Birdsong, Judge.

text:
    A89A1922.
    KERR v. THE STATE.
    (391 SE2d 449)
   Birdsong, Judge.

Larry Wayne Kerr appeals his conviction for possession of marijuana, possession of a sawed-off shotgun, driving under the influence of alcohol, fleeing and attempting to elude a police officer, and failure to maintain no-fault insurance. On appeal, he complains that the evidence was insufficient to support the verdict, that his statement to police was involuntarily made and admitted in violation of his constitutional rights, that the trial court erred in denying mistrial upon the grounds urged that he was brought into the courtroom in prison clothing, and that the trial court’s refusal to allow him to be present at his hearing on motion for new trial was legal error. Held:

1. The evidence showed that on May 17, 1988, a police lookout was placed on a light blue Cadillac from which the driver was pointing a shotgun at passing motorists. The police located the blue Cadillac and saw a man, holding plastic bags and money, leaning in the driver’s window of another parked car. Officer Morris saw the man’s face as he backed out of that car and later identified him as appellant Kerr. Appellant ran to the blue Cadillac and drove away. The officer pursued, with blue lights flashing, but appellant failed to pull over, was weaving in and out of traffic and nearly hit other cars. Appellant wrecked his vehicle and fled on foot until ordered to “freeze.” He did so, but fled again when the officer’s foot slipped down an embankment. When finally apprehended, appellant struggled against being handcuffed and placed in the police car and stated he was “just trying, to make a buck.”

In the blue Cadillac, officers found a loaded sawed-off shotgun with hammer cocked, a .38 caliber pistol under the accelerator pedal; and in the passenger floorboard a clear plastic bag with a brown substance which proved to be marijuana, and some plastic bags in the front seat.

Appellant defended by saying he was not in the car when it was stopped, that he had reported to the Villa Rica police that his car had been stolen, and that on May 17, 1988, he was merely walking down the road when an officer stopped and told him he was being arrested for DUI and eluding a police officer.

The jury heard all the evidence and were the judges of credibility; on appeal we must view the evidence in the light of the jury’s factual determinations and in favor of the verdict. Thus, on review, we do not weigh the evidence but determine the sufficiency of the evidence to support the verdict. Webb v. State, 187 Ga. App. 348, 349 (370 SE2d 204). The evidence in this case is sufficient to enable a rational juror to find proof of appellant’s guilt of all crimes found beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)), and to find that appellant was not insane at the time of the crimes.

2. The trial court did not err in finding that appellant knowingly and voluntarily waived his Miranda rights and that his statements were voluntary. The Jackson-Denno evidence showed he was questioned the day after his arrest, after he had slept, and that no threat or intimidation was used to induce an involuntary statement. The fact that there was evidence appellant ranked in the lower three percent of population in range of intelligence, does not render his voluntary statement invalid or involuntary. See Johnson v. State, 256 Ga. 259, 260 (347 SE2d 584); Caffo v. State, 247 Ga. 751, 755-757 (279 SE2d 678); Williams v. State, 238 Ga. 298, 302 (232 SE2d 535). Appellant contends in essence he could not have made an intelligent waiver of Miranda rights, because he is not “intelligent.” The law does not require a high or average degree of intelligence to validate a waiver of the right to counsel, but requires a knowing waiver. In determining this issue, the court must consider the totality of the circumstances and decide to the preponderance of the evidence. Pierce v. State, 238 Ga. 126, 129 (231 SE2d 744). The evidence in this case, in its totality, does not indicate appellant’s waiver was unknowing or involuntary, or that his statement was wrongly induced.

3. The trial court did not err in refusing a mistrial on grounds urged that appellant was brought before the jury in prison garb. The record shows plainly that appellant wore green coveralls which bore no insignia or markings or indication that it was prison clothing. Appellant’s counsel did not object to this matter until after appellant had entered and counsel had announced ready for trial and a jury was impanelled and sworn. Any valid objection to the matter was therefore waived. In any case, the green coveralls were not shown to be so distinctly evident as a prison garment as to prejudice his trial. State v. Pike, 253 Ga. 304, 307-308 (320 SE2d 355), reversing 169 Ga. App. 358 (312 SE2d 808); Lockhart v. State, 172 Ga. App. 170 (322 SE2d 503); Hayslip v. State, 154 Ga. App. 835 (270 SE2d 61).

4. Appellant asserts that the denial of his request to be present at the hearing on his motion for new trial was error. This proceeding was not a confrontational or prosecutorial function, but was a review of the trial itself. If denying his attendance was a violation of Uniform Superior Court Rule 34, such violation of a court rule does not require reversal of the jury’s verdict. Although it may be deemed best in usual circumstances to allow attendance per USCR Rule 34, constitutional and substantive law does not entitle him to be present at post-verdict proceedings such as a motion for new trial. Brown v. State, 250 Ga. 66, 75 (295 SE2d 727); Dobbs v. State, 245 Ga. 208, 209 (264 SE2d 18).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.

Decided February 21, 1990.

John T. Simpson, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.


text:
    A90A0309.
    DUBLIN v. THE STATE.
    (391 SE2d 451)
    Decided February 21, 1990.

      James R. McKay, for appellant.

      Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.
   Birdsong, Judge.

Appellant, Johnny L. Dublin, appeals his judgment of conviction and sentence for two counts of violating the Georgia Controlled Substances Act, OCGA § 16-13-30.

An undercover GBI agent testified that appellant possessed and personally sold him cocaine on two occasions. Laboratory analysis confirmed that in each instance the substance was cocaine. Appellant testified in his own behalf denying that he possessed or sold cocaine, and asserted an alibi defense. One alibi witness testified in appellant’s behalf. Held:

An appellate court determines sufficiency of evidence; it neither weighs evidence nor determines witness credibility. Smith v. State, 192 Ga. App. 768 (1) (387 SE2d 53); Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228).

Review of the transcript in a light most favorable to the verdict 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 which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge. Cooper, Judge,

text:
    A89A1673.
    LEE v. LEE et al.
    (391 SE2d 654)
   Deen, Presiding Judge.

Ki Chong Lee and his wife Sung Won Lee brought suit against their son, Kook Jin Lee, for injuries the father sustained during a robbery at the son’s supermarket. On the evening in question, the father went to their son’s store at his request to discuss family matters. The elder Lee also did some cleaning up and filled a soft drink cooler. Shortly thereafter, two young men entered the market to rob it. They ordered the Lees to lie face down on the floor. They complied, and Ki Chong Lee was shot in the back as they fled. He was rendered a paraplegic.

Appellees brought suit against their son for damages and loss of consortium, alleging that the son was negligent in not maintaining safe premises. Appellant filed a motion for summary judgment, and the court below denied the motion, holding that a fact question existed on the issue of whether a partnership existed between the men. In denying the motion, the court also found Ki Chong Lee to be an invitee in the sense that he was in the store benefiting Kook Jin Lee, that both men were equally aware of previous robberies at the market, that the elder Lee used ordinary care for his safety during the commission of the robbery, that the danger of another robbery might have been a foreseeable event because of the frequency of past robberies, and that a police officer’s affidavit stated that the presence of a security guard could have prevented the robbery. This court granted Kook Jin Lee’s application for an appeal.

1. The parties in this case seem unable to agree upon the evidence. Appellant strongly contends that the evidence shows that the father and son were business partners on the day of the shooting. The father denies that they were partners.

Construing the evidence in favor of the nonmoving party, as required in ruling on a motion for summary judgment, Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981), we find the trial court’s ruling upon this issue to be correct. The documentary evidence relied upon by appellant is not signed by Ki Chong Lee, and it is his sworn testimony that the men were not partners. Indeed, in his answer to the complaint, Kook Jin Lee admitted that the business was a sole proprietorship. This admission, however, was changed by amendment to a denial more than one year later. This issue clearly requires jury resolution.

2. In his deposition, Kook Jin Lee admitted on cross-examination that he asked his father to come to the store. While there the elder Lee performed the aforementioned chores. The son testified that it made him feel better to have another person with him in the store in the evening because when he was alone he could not do anything if a robbery occurred.. The trial court was therefore authorized to find that Kook Jin Lee received a benefit from his father’s work and presence in the store and that the latter was an invitee.

OCGA § 51-3-1 considers one to be an invitee “[w]here an owner or occupier of land, by express or implied invitation, induces, or leads [another] to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” See Phillips v. Lindsey, 184 Ga. App. 728 (362 SE2d 491) (1987).

3. The evidence showed that both men knew about the December 30, 1985, robbery which had occurred about a week earlier and involved no shooting, and that Kook Jin Lee knew about a robbery and shooting which occurred approximately six months before he purchased the business. Appellee apparently did not have equal knowledge about the earlier armed robbery.

As in Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 158 (342 SE2d 468) (1986), we find that the equal knowledge rule is not applicable in the case because “liability is founded upon the foreseeability of [armed robbery]. The proprietor’s liability is based on its failure to exercise ordinary care to keep the premises safe for its invitees. (OCGA § 51-3-1).” In the instant case, while Kook Jin Lee purchased a gun during the week between the two robberies, the evidence shows that his father urged him to hire a security guard, which he refused to do. The affidavit of the investigating police officer states that he had no personal knowledge of the prior robbery or of the details of the robbery in question, but his investigation revealed that in both instances young black males entered the store, jumped behind the cash register, and took money. The officer was of the opinion (based upon his training, experience, and investigation) “that the robbery and shooting could have been prevented if it were apparent to persons who approach the store that a guard was present . . . [and] that the juveniles who committed the robbery and shooting would not have gone into the store on January 8, 1986, had they known a guard was present.”

While OCGA § 9-11-56 (e) requires supporting or opposing affidavits to be made on personal knowledge, an exception exists for those of experts in certain malpractice cases. See Loving v. Nash, 182 Ga. App. 253 (355 SE2d 448) (1987), for the guidelines for such affidavits. The grant of summary judgment cannot be supported by opinion evidence, “[b]ut opinion evidence in affidavits can be sufficient to preclude the grant of a summary judgment.” Stevens v. Wakefield, 160 Ga. App. 353, 357 (287 SE2d 49) (1981) (rev’d on other grounds, 249 Ga. 254 (290 SE2d 58) (1982)). The trial court therefore correctly considered the opinion evidence in denying the motion for summary judgment and in finding that a jury question existed on the issue of Jin Kook Lee’s negligence in failing to exercise ordinary care to keep the premises safe for an invitee.

Accordingly, we find no error in the ruling of the trial court.

Judgment affirmed.

Birdsong, J., concurs. Cooper, J., concurs specially.

Decided February 8, 1990

Rehearing denied February 22, 1990

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellant.

Awtrey & Parker, J. Lynn Rainey, for appellees.

Cooper, Judge,

concurring specially.

I concur in the majority opinion and write only with respect to Division 3 of the opinion. Because I believe that even without the officer’s affidavit, a question of fact existed as to whether appellant exercised ordinary care to keep the premises safe, I agree with the majority that the trial court properly denied summary judgment. However, I cannot conclude as the majority does that the affidavit of the police officer was properly considered in denying the motion for summary judgment. The officer states in his affidavit: “It is my opinion, based upon my training, experience, and investigation of the January 8, 1986 East Atlanta Supermarket robbery and shooting that the robbery and shooting could have been prevented if it were apparent to persons who approach the store that a guard was present.” (Emphasis supplied). The speculative nature of the officer’s statement raises serious questions as to its admissibility, and we have held that an affidavit considered on motion for summary judgment must contain evidentiary matter which the affiant could testify to in court. Chandler v. Gately, 119 Ga. App. 513 (1) (167 SE2d 697) (1969). I am unable to conclude that the officer, even if qualified as an expert in the area of law enforcement, would have been allowed to testify about what “could” have happened.


text:
    A89A2311.
    THE STATE v. CHAMBERS.
    (391 SE2d 657)
   Carley, Chief Judge.

Appellee was indicted for kidnapping, possession of a firearm during commission of a felony, providing a firearm to a person under 21, driving without a license, possession of a firearm by a convicted felon, and two counts of armed robbery. He filed a pre-trial motion to suppress the firearms and the stolen cash. The trial court granted appellee’s motion and the State appeals.

1. On August 22, 1989, the trial court conducted a hearing on appellee’s motion to suppress and, at the conclusion of the hearing, stated that it would grant the motion. The State filed its notice of appeal on August 24, 1989, but the trial court’s written order granting appellee’s motion was not entered until August 31, 1989. Appellee has moved to dismiss the State’s appeal on the ground that it was filed prematurely.

“Where the appeal is too early, rather than too late, ‘(t)he rule now is that if the notice is sufficient to advise the opposing party that an appeal is being taken from a specific judgment, and if no prejudice will result to the appellee in allowing the appeal, then the appeal should not be dismissed merely because the notice was premature.’ [Cit.] We find no lack of notice or danger of prejudice to the appellee in this case.” Yeager v. Poole Truck Lines, 162 Ga. App. 803 (1) (293 SE2d 64) (1982). Accordingly, “we will review the case on its merits rather than dismiss it for lack of jurisdiction in accordance with Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975).” Eller v. State, 183 Ga. App. 724 (360 SE2d 53) (1987). See also Hendrick v. State, 257 Ga. 514 (fn. 1) (361 SE2d 169) (1987). In view of the whole court case of Eller, supra, State v. Rimes, 177 Ga. App. 872 (341 SE2d 710) (1986) is no longer viable authority upon which to base the dismissal of a prematurely filed appeal. OCGA § 15-3-1 (d).

2. At the hearing on appellee’s motion to suppress, the State presented the testimony of two law enforcement officers, Officer Drury and Deputy Johnson. Appellee offered nothing in opposition to the officers’ testimony. The State’s unrebutted evidence showed the following: In connection with the report of an armed robbery, Officer Drury was maintaining a lookout for the perpetrators’ vehicle along a four-lane road. Included among the descriptive details that had been relayed to Officer Drury was the fact that the suspected car had “revolving lights around the tag.” When he observed a passing vehicle that appeared to fit the description that had been given to him, Officer Drury pulled out in his marked patrol car to follow it. At that time, a second car was traveling beside the suspected car. Although there was initially nothing suspicious about this second car, it suddenly slowed down and then moved in behind the suspected car as Officer Drury’s marked patrol car approached. At speeds of 45-50 miles per hour, the second car then continued to follow the suspected car at distances as close as six-to-seven feet in an apparent attempt to obstruct Officer Drury’s view of the suspected car’s tag. When Officer Drury was eventually able to observe the tag of the suspected car and confirm his suspicions that it matched the description given to him, he called for assistance and Deputy Johnson responded to his request. The officers determined that the cars should be stopped separately as a precautionary measure should the occupants be armed. It was Deputy Johnson who stopped the second vehicle. Appellee was the driver of the second vehicle and, when he could not produce a driver’s license, Deputy Johnson arrested him for driving without a license. In a subsequent search of appellee’s vehicle, the firearms and the stolen cash were discovered.

“ ‘ “[Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.” [Cits.]’ [Cit.] ‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow . . . a criminal to escape.’ [Cit.]” State v. Webb, 193 Ga. App. 2 (1) (386 SE2d 891) (1989). The undisputed evidence shows that Officer Drury’s stop of. the suspected car was clearly authorized based upon his “reasonable suspicion” that its occupants were fleeing armed robbers. The undisputed evidence also shows that there were two interrelated indicia of “reasonable suspicion” which likewise authorized Deputy Johnson’s stop of appellee’s car.

First, Officer Drury had observed that appellee’s car was following too closely behind the suspected car. This was a traffic offense, which, in and of itself, justified the stop of appellee’s car. The mere fact that appellee was never issued a traffic citation for following too closely is of no consequence. If an officer stops a vehicle in the good faith belief that a traffic violation has been committed, his ultimate failure to issue a traffic citation will not preclude the traffic offense from evincing the reasonable suspicion which served to justify his initial stop of the vehicle. See State v. Webb, supra at 4 (1); McConnell v. State, 188 Ga. App. 653 (1) (374 SE2d 111) (1988). Thus, the fact that appellee was subsequently arrested for another traffic offense that he was actually committing in the arresting officer’s presence, which offense was then more objectively determinable than that for which appellee was originally stopped, in no way militates against consideration of appellee’s commission of the original traffic offense as the reasonable suspicion which nevertheless justified the initial stop of his vehicle.

Second, Officer Drury had observed that appellee’s car moved from beside to behind the suspected car and then followed it in an apparent attempt to frustrate his identification efforts. By engaging in this deliberately furtive action, appellee established the existence of a suspicious nexus between his car and the suspected car. “ ‘[Deliberately furtive actions ... at the approach of . . . law officers are strong indicia of mens rea. . . .’ [Cit.] Accordingly, regardless of whether appellee’s act of [following too closely was the reason for the stop], it was nevertheless clearly a sufficiently suspicious and deliberately furtive response to the [approach of law officers] so as to give [them] at least a reasonable suspicion of appellee’s criminal activity and to warrant further investigation.” State v. Webb, supra at 4 (1).

Thus, the undisputed evidence shows that the stop of appellee’s car was clearly authorized based upon reasonable suspicion of criminal activity. “Once the stop was effected, [appellee] was subject to custodial arrest for operating a motor vehicle without a valid driver’s license, see OCGA §§ 40-5-20 (a) and 40-5-120 ([6]). . . .” Wilder v. State, 192 Ga. App. 891 (386 SE2d 685) (1989). See also Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986). Deputy Johnson “did not have to wait until [he] had probable cause to arrest for [armed robbery] in order to . . . arrest [appellee] for driving [without a] license, a crime which was being committed in [his] presence.” State v. McCloud, 187 Ga. App. 580, 583 (370 SE2d 831) (1988).

3. Although the State’s evidence was unrebutted, appellee asserts that the testimony of Officer Drury conflicts with the testimony of Deputy Johnson in two respects and these conflicts cast doubt on the overall credibility of both officers.

Officer Drury testified that he observed that the cars were as close as six-to-seven feet. This testimony related to Officer Drury’s observations during the period of time immediately after appellee’s car had moved in behind the suspected car and before Deputy Johnson arrived to assist in stopping the vehicles. Officer Drury’s testimony in this regard in no way conflicts with Deputy Johnson’s testimony that he observed that the cars were within 100 feet of each other. Deputy Johnson’s testimony related to his observations during the period of time after his arrival, which was subsequent to Officer Drury’s observation of the commission of the traffic offense of following too closely. Accordingly, there was no conflict whatsoever between the officers’ testimony.

As to the second purported conflict, Officer Drury did describe the suspected car as a black Chevrolet Monte Carlo and Deputy Johnson described it as a green Oldsmobile Cutlass. However, Officer Drury stated that he was on the lookout for a dark Cutlass and that a Monte Carlo has the same body style as a Cutlass. Deputy Johnson testified that the two officers were under the impression the car was a Monte Carlo, but that he believed it turned out to be a Cutlass. In light of this testimony, and the fact that the stop occurred at night, any conflict as to the make of the suspected car would ultimately be insignificant. Cf. Creecy v. State, 235 Ga. 542 (2) (221 SE2d 17) (1975). Moreover, any such conflict would be immaterial to the existence of the reasonable suspicions that justified the initial stop of the cars. Regardless of any confusion over the make of the suspected car, Officer Drury clearly had a reasonable suspicion to stop it when he finally observed its tag and he also clearly had a reasonable suspicion to stop appellee’s car when he observed it following the suspected car too closely in a deliberately furtive manner. “[0]n the crucial issue, matters of credibility and weight and conflict resolution are not involved.” State v. Adams, 186 Ga. App. 87, 89 (366 SE2d 326) (1988).

It follows that the State met its burden of proof by the unrebutted testimony of its two witnesses. Thus, the trial court erred in granting appellee’s motion to suppress.

Decided February 9, 1990

Rehearing denied February 22, 1990

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Deborah M. Perils, Assistant District Attorneys, for appellant.

J. Kelly Brooks, John B. Adams, for appellee.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1 and 3 and in the judgment.


author: Cooper, Judge.

text:
    A89A1764.
    SOUTHERN GUARANTY INSURANCE COMPANY v. COOK et al.
    (391 SE2d 452)
   Cooper, Judge.

This appeal follows our grant of appellant’s application for interlocutory review of the trial court’s denial of appellant’s motion for partial summary judgment.

On November 11, 1988, appellee Cook filed suit against appellee Taylor, an uninsured, non-resident motorist, for injuries she allegedly sustained in a vehicular collision on November 15, 1986. Upon filing the complaint, appellee Cook sent a copy of the complaint marked “Second Original” to the DeKalb County Sheriff who, on November 15, 1988, served appellant, the insurer of the automobile which appellee Cook was operating at the time of the collision. After appellant asserted in its answer that appellee had failed to perfect service of process within the statute of limitation, appellee sent another copy of the complaint, this one marked “Duplicate Original,” which was served upon appellant on January 3, 1989. Appellant subsequently amended its answer to acknowledge it had been served with a duplicate original on January 3, 1989, but then moved for summary judgment on the ground that it had not been served with a duplicate original within the statute of limitation. The trial court, finding that the complaint served on appellant on November 15, 1988, was a duplicate original and was timely served, denied appellant’s motion.

1. OCGA § 33-7-11 (d) provides that “[i]n any case arising under this Code section where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have same accomplished by issuing a duplicate original copy for the sheriff or marshal to place his return of service in the same form and manner as prescribed by law for a party defendant.” (Emphasis supplied.) Appellant first contends that the complaint served on November 15, 1988, was not a duplicate original within the meaning of the statute. Appellant argues that to constitute a duplicate original, the document must have an original signature, therefore neither the document served on November 15, 1988, nor the document served on January 3,1989, was a duplicate original. We disagree. Although the statute requires service on the uninsured motorist carrier (“UMC”) by duplicate original copy, compliance does not make the UMC a party to the lawsuit. The service requirement is a statutory prerequisite to collecting uninsured motorist benefits. “Because the UMC may be liable for the amount which a plaintiff/insured ‘shall be legally entitled to recover’ from an uninsured motorist/tortfeasor, and because a tortfeasor may become ‘uninsured’ subsequent to the injury-causing collision, the UMC is entitled to statutory notice of the existence of a lawsuit in which it ultimately may be held financially responsible.” Bohannon v. Futrell, 189 Ga. App. 340 (1) (375 SE2d 637) (1988). Since the purpose of the statute is to give notice to the insurer of its potential financial responsibility, the purpose was met in this case by the service of the copy on November 15, 1988, and we find no purpose served by holding, as appellant argues, that to constitute a duplicate original copy there must be an original signature. Furthermore, the statute requires that the clerk of court issue the duplicate original copy. The document served on appellant was a copy of the original complaint, on which the clerk wrote the case number and attached an original summons dated November 11, 1988. We find that the clerk’s filing of the original complaint and assigning a case number to it simultaneously with stamping and assigning the same number to the duplicate copy was in compliance with OCGA § 33-7-11 (d). Accordingly, the trial court did not err in finding that the document served on appellant on November 15, 1988, was a duplicate original.

2. Appellant’s second enumeration of error is that the trial court erred in finding that the complaint was timely filed and served. The complaint was filed within the applicable two-year statute of limitation, and service was perfected within five days. OCGA § 9-11-4 (c). Therefore, we find no error with the trial court’s finding that filing and service were timely. For the foregoing reasons, we find it unnecessary to address appellant’s contention that the complaint served on appellant on January 3, 1989, was untimely.

3. Inasmuch as the record reflects that appellee complied with OCGA § 33-7-11 (d) within the two-year limitation period for personal injury, the trial court properly denied appellant’s motion for summary judgment. See Bohannon v. Futrell, supra.

Judgment affirmed.

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

Decided February 22, 1990.

Wetzel, Shaw & Quinn, Michael L. Wetzel, for appellant.

William T. Elsey, Velma C. Tilley, for appellees.


text:
    A89A1790.
    SMITH v. ODOM.
    (391 SE2d 453)
   Cooper, Judge.

This appeal arises out of an automobile accident which occurred when appellee, travelling north from an exit ramp, attempted to cross a multi-lane highway and was struck by appellant’s car, which was travelling east. Appellant brought suit to recover for personal injuries sustained in the accident and a jury verdict and judgment were entered in favor of appellee.

1. In his first enumerated error, appellant contends that the trial court erred in failing to grant appellant’s motion for a directed verdict. “The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard. [Cit.]” United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329 (1) (304 SE2d 131) (1983). The evidence shows that prior to the accident, drivers in two of the three eastbound lanes were able to stop to allow appellee to proceed across the intersection. Appellant, however, was unable to stop and left fifteen feet of skid marks at the accident scene. Since there was some evidence to support an inference that appellant’s actions may have contributed to the accident, the trial court did not err denying appellant’s motion for a directed verdict. F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

2. In enumerations of error 3, 4, 5 and 6, appellant contends that the trial court erred in failing to give charges in the specific language requested by appellant. The trial court is under no duty to charge in the specific language requested by appellant (Rossville Apt. Co. v. Britton, 178 Ga. App. 194 (3) (342 SE2d 504) (1986)), and any charges requested must be a correct statement of the law. Fowler v. Gorrell, 148 Ga. App. 573 (2) (251 SE2d 819) (1978). Inasmuch as the charges given by the trial court completely transmitted to the jury the law applicable to the cases, there was no error in omitting the charges enumerated. Fowler, supra at Div. 2.

3. Appellant contends in enumerations 2, 7, 8, 9, 10 and 11, that the trial court erred in giving charges on comparative negligence, avoidance, magnified or exaggerated damages, duty of a driver to maintain a diligent lookout ahead and impeachment. With respect to enumerations 2, 7, 8, 10 and 11, we find there was sufficient evidence to authorize the giving of those charges. “ ‘ “Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” [Cit.]’ ” Kelley v. Foster, 192 Ga. App. 95 (3) (383 SE2d 646) (1989).

Decided February 22, 1990.

Daniel C. B. Levy, for appellant.

Beck, Owen & Murray, Samuel A. Murray, for appellee.

However, we find error with the giving of the charge on exaggerated damages and reverse. The charge in this case is substantially identical to the charge given in Mathis v. Watson, 259 Ga. 13 (376 SE2d 660) (1989), where the Supreme Court held that the giving of such a charge was harmful error because it related to the issue of liability and did not deal solely with the issue of damages. Although we held in Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987) that a charge on magnified damages constituted harmless error where the jury exonerated the defendant, it appears from the opinion that the charge was confined to the issue of damages. The charge in this case being virtually identical to the charge in Mathis, the giving of such charge constitutes reversible error.

Judgment reversed.

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