text:
    77490, 77491.
    COLLINS v. NEWMAN MACHINE COMPANY, INC.; and vice versa.
    (380 SE2d 314)
   Sognier, Judge.

Donnie Witt Collins brought suit individually and as administrator of the estate of his son, David W. Collins, against Newman Machine Company, Inc. (Newman) and others, alleging claims for negligence and strict liability in the death of his son. Collins appeals from the grant of partial summary judgment to Newman in Case No. 77490, and Newman cross-appeals in Case No. 77491 from the denial of its motion for summary judgment on three remaining issues.

Construed favorably to Collins as respondent below, the record reveals that Collins’ decedent was employed by Zarn, Inc., as a machine mechanic in its Atlanta plant, and as part of his regular duties performed maintenance work on Zarn’s blow molders, machines used in the manufacture of plastic flower pots. The record reveals that Zarn’s in house engineer designed modifications to its blow molders, and that Zarn ultimately purchased the component parts needed for the design modifications from several different manufacturers, including die heads manufactured by both Newman and Paysour Company. Paul Pritzker, Collins’ electrical engineering expert, testified by deposition that the heater bands, which were attached to the die heads on each blow molder, had exposed uninsulated high voltage terminal posts, and that the die head adjustment knobs were “within inches” of these exposed terminals. Pritzker opined that the die heads were an integral part of the “locus of the heater bands,” the area he considered to be “unreasonably dangerous.” Pritzker also stated that, while in his opinion the die heads had no inherent defect and that the defect was in the manner in which they were incorporated into the machine, the use to which the die heads were put by Zarn was a “foreseeable utilization ... in an industrial setting.”

Kathryn Proctor, a Zarn quality control employee, testified that on May 17, 1984 she asked Collins’ decedent, David Collins, to adjust the flow of plastic from blow molder G-7, a maneuver which Mark Setliff, a Zarn mechanic, testified was accomplished by adjusting four flow restriction bolts located on the machine’s die head. Proctor testified that David Collins became frustrated at the task and kicked the blow molder, and that after she returned to her second floor office she saw him strike an electrical box on or near blow molder G-7 with a wrench and then fall to the floor. Conversely, Setliff’s testimony suggests that David Collins was working on the die head when he was shocked. Setliff stated in his affidavit that, although he did not see Collins’ decedent receive the fatal shock, he did see David Collins “coming from in between the G-7 and G-8 machines . . . from the area where you go to make the adjustments to the dieheads,” and that David called out to him and then fell. It is undisputed that David Collins died from the electrical shock he received.

1. In the main appeal Collins challenges the trial court’s award of partial summary judgment to Newman, which was based upon the court’s conclusion that the evidence showed that the only defect in the die head was a defect in design, and as Newman did not design the die head it could not be held liable for defective design. While acknowledging that Newman did not design the die heads but manufactured them to Zarn’s specifications, Collins contends that questions of fact remain regarding whether Zarn’s design was so unsafe that Newman did foresee or should have foreseen the danger, and whether Newman had special expertise in evaluating designs so as to require a higher standard of care. Newman argues that this issue is governed by the “contract specification defense,” which has been adopted in other jurisdictions but has not been recognized in Georgia, and which provides that “a contractor is not liable for damages resulting from specifications provided by his employer unless those specifications are so defective and dangerous that a reasonably competent contractor ‘would realize that there was a grave chance that his product would be dangerously unsafe.’ [Cits.]” Johnston v. United States, 568 FSupp. 351, 354 (3) (D. Kan. 1983).

Even assuming, arguendo, the applicability of the contract specifications defense in the case sub judice, but see generally Moody v. Martin Motor Co., 76 Ga. App. 456, 461-462 (46 SE2d 197) (1948), we agree with Collins that because of Pritzker’s testimony material questions of fact remain as to whether the specifications were so defective that Newman should have realized that its die heads might be dangerously unsafe when incorporated into the blow molder, thereby precluding application of this defense to sustain summary judgment in favor of Newman on Collins’ negligence claim. See Johnston, supra at 355-356 (5).

As to Collins’ claim in strict liability, “the question is whether the [die head] was defective in its manufacture, its packaging, or the failure to adequately warn of its dangerous propensities,” Center Chem. Co. v. Parzini, 234 Ga. 868, 871 (218 SE2d 580) (1975), and whether any such defect existed at the time the die head was sold to Zarn. Talley v. City Tank Corp., 158 Ga. App. 130, 136 (279 SE2d 264) (1981). Strict liability issues regarding manufacturing defects being addressed in Division 2, infra, we turn first to Collins’ claim in strict liability based on failure to warn.

“ ‘A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling . . . the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use ... he may be required to give adequate warning of the danger . . . and a product sold without such warning is in a defective condition.’ [Cit.]” Parzini, supra at 869-870 (3). This duty to warn arises only when the product is used in the manner reasonably contemplated and intended by the manufacturer, or in a manner reasonably foreseeable by the manufacturer. Talley, supra at 137. Newman argues the trial court’s grant of summary judgment was correct because Newman did not design the die heads and there is no evidence the die heads were defective when sold. However, we find that factual questions remain as to whether the die heads became defective upon installation in the blow molders, and if so, whether Newman had reason to anticipate that danger might result from the use to which the die heads were put but failed to warn adequately. Accordingly, we find the trial court erred by granting summary judgment to Newman. See generally Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 SE2d 673)(1988).

2. In the cross-appeal, Newman first enumerates as error the trial court’s denial of its motion for summary judgment made on the grounds that Collins “did not meet his burden of proving that [Newman] proximately caused the death of” his decedent, and that the die heads manufactured by Newman were not defective as a matter of law.

On a motion for summary judgment the movant carries the burden of establishing the nonexistence of any genuine issue of fact, even as to issues upon which the opposing party would, have the trial burden, and all doubts are to be resolved against the movant. Gaylor v. Jay &c. Chrysler-Plymouth-Dodge, 183 Ga. App. 255, 256 (358 SE2d 655) (1987). A defendant-movant has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987).

In support of its argument that it has negated Collins’ allegations regarding negligence and strict liability, Newman cites the testimony of Pritzker, Collins’ own expert, that the die heads were not defective and that the defects were in Zarn’s design and failure to warn. However, as this is not the type of case in which an expert’s opinion introduced by the movant will authorize the grant of summary judgment, see Yaeger v. Canadair, Ltd., 189 Ga. App. 207 (375 SE2d 469) (1988), Newman is not entitled to summary judgment based solely on Pritzker’s opinion testimony. While opinion testimony adduced by the respondent is sufficient to preclude the grant of a summary judgment, it does not follow that the introduction of opinion evidence by the movant will authorize the grant of a summary judgment. See Nichols v. Frey, 185 Ga. App. 829, 830-831 (366 SE2d 212) (1988); see also Yaeger, supra.

Newman also contends that it has presented sufficient evidence to negate Collins’ allegation that the defective design or negligent utilization of the Newman die head was the proximate cause of his son’s death, in that Pritzker opined that the fatal shock must have been caused by the exposed high voltage terminals on the heater bands, and Proctor testified that she saw David Collins strike the electrical box, not the die head, with a wrench. In response, Collins cites Setliff’s testimony that he was aware David Collins was planning to adjust the die head on blow molder G-7, and that he (Setliff) saw David Collins in the area where the die head knobs were adjusted when he was shocked, as well as Pritzker’s testimony that the die heads were installed “within inches” of the exposed terminals. Further, Collins contends that the credibility of Proctor’s testimony must be weighed by á jury because she was standing a floor above and a number of yards away from Collins’ decedent when she saw him receive the fatal shock.

We agree with Collins that this is not one of those cases in which the element of proximate cause is negated by evidence so clear, palpable, and undisputed as to warrant summary adjudication. The evidence does not unequivocally show that the die heads were free of manufacturing defects, and that the alleged defects in the design of the die heads and the use to which they were put by Zarn could not and should not have been foreseen by Newman. Further, there is a material factual dispute as to whether the installation and positioning of the die heads was the proximate cause of the injury, and whether the fatal shock was caused by the electrical box rather than the exposed terminals next to the die head adjustment knobs. Accordingly, we cannot find Newman is entitled to judgment as a matter of law, and thus we affirm the trial court’s denial of summary judgment on these issues. See Spivey v. Vaughn, 182 Ga. App. 91 (354 SE2d 870) (1987).

3. Newman also enumerates as error the trial court’s denial of its motion for summary judgment made on the basis that Collins cannot establish that Newman manufactured the die head installed on blow molder G-7.

The record discloses that both Newman and Paysour manufactured the die heads in use by Zarn at the time of David Collins’ death. Roy McCollum, Zarn’s project engineer, testified by affidavit that he was aware of “at least two companies who . . . fabricated die heads” for the Atlanta plant’s blow molders, and that “there is no way to determine the fabricator of a particular die head.” In addition, James Sharpe, general manager of Zarn’s North Carolina plant, stated in his affidavit that, although the die heads at the Atlanta plant “were sometimes generically referred to as ‘Newman’ heads,” he had no personal knowledge who manufactured the die heads. In response, Collins tendered an excerpt from deposition testimony Sharpe gave in a related lawsuit, but as Newman was neither present nor represented at this deposition and there is no evidence it had reasonable notice thereof, this deposition testimony is not usable against Newman. See OCGA § 9-11-32 (a); compare Colbert Co. v. Newsom, 125 Ga. App. 571 (1) (188 SE2d 266) (1972).

Nonetheless, we agree with Collins that this enumeration is controlled by this court’s decision in Scott v. Owens-Illinois, 173 Ga. App. 19, 22-23 (3) (325 SE2d 402) (1984). While the evidence regarding the source of the die head on blow molder G-7 may not be sufficient to sustain Collins’ burden of proof at trial, “[t]he fact that the evidence adduced by [Collins] in his response to the motion for summary judgment does not prove definitively which of the two manufacturers supplied the [die head] involved in the instant case—or, indeed, that the [die head’s alleged defects] were due to fault on the part of either manufacturer—is of no significance to the trial court’s deliberations as to whether or not to grant summary judgment. [Cits.] The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. [Cit.] The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact. [Cits.] In the instant case it is clear that such issues exist.” Id. Accordingly, we conclude the trial court did not err by denying summary judgment to Newman on this issue.

Decided March 8, 1989

Rehearing denied March 23, 1989

Ford & Haley, James L. Ford, David C. Cole, for appellant.

Harmon, Owen, Saunders & Sweeney, Frederick F. Saunders, Jr., Michael W. McElroy, for appellee.

Judgment affirmed in Case No. 77491; judgment reversed in Case No. 77490.

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


source: Caselaw Access Project

author: Carley, Chief Judge. Sognier, Judge,

license: Public Domain

text:
    77506.
    77507.
    77508.
    COCHRAN v. THE STATE. PASSMORE v. THE STATE. BALLARD v. THE STATE.
    (380 SE2d 319)
   Carley, Chief Judge.

Appellants appeal from their convictions for trafficking in cocaine.

1. Appellants Passmore and Ballard enumerate the general grounds. Appellant Cochran does not. The evidence adduced at trial showed that a state patrol officer stopped a vehicle for speeding. Appellant Passmore, the driver of the vehicle, produced a valid driver’s license and a car registration form which indicated that the vehicle was registered to Melvin Jennings of Florida. Appellant Passmore told the officer that Jennings was a relative of appellant Cochran and he also stated that he was going to Woodbury, Georgia. The officer then questioned appellant Cochran, who was seated in the front passenger seat. Appellant Cochran told the officer the car had been borrowed so that they could attend a funeral in Camilla, Georgia. Appellant Ballard and another man were in the back seat of the car. According to the officer, one of them remarked that they were going to Valdosta while the other commented that he did not know where they were going. However, the officer did not know which man had made what statement.

Based on the discrepancies in the stated destinations, the officer requested and received permission from appellant Passmore to search the vehicle. The ensuing search disclosed no luggage in the cab or trunk, but $2,200 in cash was found in the glove compartment. When the officer could not find the latch to the hood of the vehicle, he asked for help and was aided by appellant Cochran in getting the hood open. Behind the left headlight, the officer found approximately three pounds of cocaine with a purity of 98 percent. All the occupants of the vehicle were placed under arrest.

This evidence is insufficient to authorize a finding of appellant Ballard’s guilt beyond a reasonable doubt. As to him, there was not sufficient evidence of such inculpatory conduct before, during or after the offense as would authorize a finding that he was anything other than a mere passenger in the vehicle. See generally Oldwine v. State, 184 Ga. App. 173 (1) (360 SE2d 915) (1987). Compare Robinson v. State, 175 Ga. App. 769, 772 (3) (334 SE2d 358) (1985).

The evidence is, however, sufficient to authorize a finding that appellants Passmore and Cochran were in joint actual possession of the cocaine. See Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). “[A]ctual and constructive possession ‘ “often so shade into one another that it is difficult to say where one ends and the other begins.’” [Cits.]” Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982). “The ‘actual possession’ required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729, 736 (2) (360 SE2d 400) (1987). Appellant Passmore was the driver of the automobile in which the contraband and $2,200 in cash were found. Appellant Cochran was the person to whom possession and control of that vehicle had been entrusted by the owner.

The “equal access” principle does not mandate the reversal of appellant Passmore’s conviction. There was no affirmative evidence that anyone other than appellants Passmore and Cochran had an equal opportunity to commit the crime. See generally Prescott v. State, 164 Ga. App. 671, 672 (1) (297 SE2d 362) (1982). “ ‘[M]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. [Cits.]’ [Cit.]. . . . ‘To make an affirmative showing of equal access, it is not enough to show that others might have had equal access but it must affirmatively appear that others did have equal access. It is not necessary that the [S]tate remove every possibility of defendant’s innocence [cit.], but only that the evidence be sufficient to convince the rational trier of fact of the defendant’s guilt beyond a reasonable doubt. [Cit.]’ [Cit.]” (Emphasis in original.) Burrell v. State, 171 Ga. App. 648, 650 (6) (320 SE2d 810) (1984). There is only mere speculation that others may have had equal access to the area under the hood of the car. Although the car was not owned by appellant Cochran, the jury would be authorized to find that the owner would not have loaned his vehicle knowing that his three pounds of cocaine and $2,200 in cash were located therein. The jury would also be authorized to find, as a rational trior of fact, that no one other than appellant Passmore, as the driver, and appellant Cochran, as the custodian, had equal access to the relatively inaccessible area under the hood of the car. Compare Shreve v. State, 172 Ga. App. 190 (322 SE2d 362) (1984). Any speculation that the area under the hood was easily accessible to others is negated by the evidence that the officer himself had difficulty in opening the hood and required the assistance of appellant Cochran to do so. “Whether the evidence of equal access is sufficient to rebut any inference of possession ... is a question properly left to the jury. [Cit.]” Ramsay v. State, 175 Ga. App. 97, 99 (7) (332 SE2d 390) (1985). There being no unrebutted affirmative evidence demanding a finding of equal access, a rational trior of fact was authorized to find appellant Passmore guilty beyond a reasonable doubt of jointly trafficking in cocaine with appellant Cochran. See generally Robinson v. State, supra at 771 (2).

2. Appellant Passmore enumerates as error the denial of his motion for a continuance in order to give his counsel more time to prepare for trial. We find no abuse of discretion in the denial of the motion. See generally Burnett v. State, 240 Ga. 681, 683 (1) (242 SE2d 79) (1978).

3. Appellant Passmore enumerates as error the denial of his motion to sever his trial from the trial of appellant Cochran. We find no reversible error in the denial of the motion. See generally Murphy v. State, 246 Ga. 626, 629 (2) (273 SE2d 2) (1980).

4. Although appellant Passmore enumerates as error the admission of certain evidence which he contends was allegedly seized as the result of an illegal search, the record shows that he filed no timely written pre-trial motion to suppress that evidence. Accordingly, this enumeration is without merit. See generally Turner v. State, 170 Ga. App. 355 (317 SE2d 631) (1984).

5. In the remaining enumerations, appellants Passmore and Cochran urge that the trial court’s charge was erroneous in several respects. “It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. [Cit.] While the specific portion[s] of the charge of which complaint is made, when torn asunder and considered as a disjointed fragment, may be objectionable, when put together and considered as a whole, the charge is perfectly sound. [Cits.] We find no harmful error in the charge.” Clark v. State, 153 Ga. App. 829, 831 (2) (266 SE2d 577) (1980).

Judgments affirmed in Case Nos. 77506 and 77507. Judgment reversed in Case No. 77508.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., concurs in part and dissents in part.

Sognier, Judge,

dissenting in part.

At the time the arrests were made and the indictments handed down in these appeals, the case law in this state had construed the applicable statute to authorize convictions for trafficking in cocaine based on the accused’s constructive possession of the contraband. See, e.g., Blaise v. State, 185 Ga. App. 653, 654 (365 SE2d 499) (1988); Clark v. State, 184 Ga. App. 380, 382 (1) (361 SE2d 682) (1987). That case law was overruled in Lockwood v. State, 257 Ga. 796, 798 (364 SE2d 574) (1988) which mandated a strict application of the statutory requirement of actual possession of the contraband to support a trafficking conviction. “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.’ ” Id. at 797. It is to be noted that the legislature amended OCGA § 16-13-31 (a) to delete the requirement of “actual” possession effective 52 days after Lockwood was decided. That amendment, however, is not applicable to these appeals, see generally McIntosh v. State, 185 Ga. App. 612, 616 (365 SE2d 454) (1988), and I cannot agree with the majority that we can give lip service to Lockwood’s controlling authority by relabeling as “actual” possession evidence which clearly establishes only joint constructive possession.

Passmore and Cochran were the driver and cousin of the owner, respectively, of the blue Mercedes automobile in which approximately three pounds of 98 percent pure cocaine were found under the hood. The automobile had four occupants of whom Cochran was the closest to the glove compartment containing $2,200. It is uncontroverted that the cocaine was physically inaccessible to the occupants inside the Mercedes and, while there is evidence that a state patrol officer had difficulty opening the hood, contrary to the majority’s statement there is no evidence that the hood could not be raised and the contraband accessed by anyone with a modicum of mechanical ability. Other than Cochran’s proximity to money equally accessible to all four occupants of the vehicle, and the presumption of possession of contraband which arises from the control of the Mercedes, i.e., Passmore’s status as driver of the vehicle and Cochran’s status as the person to whom the owner of the vehicle had entrusted the car, there is no evidence of knowing direct physical control over the contraband to support the convictions of Cochran and Passmore.

In Farmer v. State, 152 Ga. App. 792 (264 SE2d 235) (1979), this court held that when there is any competent evidence that others have had equal access to the vehicle where contraband is found, it cannot be inferred as a matter of fact, giving rise to a presumption of law, that based solely upon ownership or operation of the vehicle that the accused was in actual or constructive possession of the contraband. Id. at 796. “[N]o presumption of possession arises where there is evidence of equal access by others. [Cit.] Without the presumption of possession and control, what is left is mere presence at the scene of a crime or, more to the point, mere presence near hidden contraband. As a matter of law, this is not enough to support a finding of criminal possession of the contraband beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. [Cits.]” In the Interest of C. A. A., 187 Ga. App. 691, 693-694 (371 SE2d 247) (1988).

Even though the State’s evidence showed, and appellants’ counsel on cross established, that all four occupants in the car did have equal access to the contraband, the majority holds that appellants’ failure to submit the same evidence as their case in chief means no “affirmative” defense of equal access was presented. I cannot agree that such a burden is placed on accuseds in this state. Further, the majority indulges in speculation by asserting that the owner of the Mercedes “would not have loaned his vehicle” knowing that he had three pounds of cocaine under the hood. And I cannot agree with thé majority that it is “speculation” that the hood to the vehicle was not accessible to all merely because one state patrol officer had difficulty opening it, when the State easily could have presented evidence of an interior latch or other mechanism accessible only to the occupants of the vehicle had such been the case.

Convictions cannot be based on what a jury could have “speculated” from the sparsity of evidence presented. Rather, the evidence must be such that a rational trier of fact can find evidence beyond a reasonable doubt of every element of the crime, including here the actual possession by knowing direct physical control over the contraband by appellants Cochran and Passmore. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Moore v. State, 255 Ga. 519, 520 (340 SE2d 888) (1986). The evidence here consisted of a presumption of possession rebutted by evidence of equal access and vague speculations which failed to exclude every other reasonable hypothesis save that of the guilt of the accuseds under OCGA § 24-4-6. Since I would not place upon the citizens of this state the burden of looking under the hood of a vehicle before they agree to drive it or of searching all vehicle cavities before accepting the loan of a car from a relative, I can concur only in the reversal of Ballard’s conviction in Case No. 77508, and must respectfully dissent to the majority’s affirmance of the conviction of Passmore in Case No. 77507. Since the evidence was insufficient to support Cochran’s conviction in Case No. 77506, the absence of exception does not preclude this court from addressing this obvious error, see Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986); Taylor v. State, 186 Ga. App. 113, 114-115 (366 SE2d 422) (1988), and I must likewise dissent to the affirmance of the conviction in Case No. 77506.

Decided March 8, 1989

Rehearing denied March 23, 1989.

Larry B. Mims, for appellant (case no. 77506).

Lee W. Fitzpatrick, for appellant (case no. 77507).

Buckley & Buckley, Richard R. Buckley, Jr., for appellant (case no. 77508).

David E. Perry, District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.


author: Benham, Judge.

text:
    77329.
    RAMIREZ v. THE STATE.
    (380 SE2d 323)
   Benham, Judge.

Appellant Ramirez and co-defendant Moreno were convicted in a joint trial of trafficking in cocaine. Ramirez appeals from his conviction, contending that the evidence was not sufficient to support his conviction, and that the trial court erred in its instructions to the jury.

1. At approximately 9:00 a.m. on December 12, 1987, a Georgia State Patrol trooper stopped the car appellant was driving on an interstate entrance ramp and cited him for failure to yield right-of-way. Appellant displayed a valid Florida driver’s license in response to the trooper’s inquiry. Because the car had a Massachusetts tag, the officer asked to see proof of ownership of the car, and appellant informed him that the passenger owned the vehicle. Observing a man reclining in the back seat with a coat over his head and a “readily accessible briefcase” on the back floorboard, and fearing for his personal safety, the trooper called for back-up personnel. When they arrived, a second officer approached the car and awakened the sleeping man, who displayed a Massachusetts driver’s license identifying him as Moreno, and the appropriate vehicle registration documents. The back-up trooper told the trooper who had stopped the car that everything was in order. Moreno then said to the trooper, “Me open trunk. You look.” Moreno opened the trunk and the trooper saw only luggage. Moreno then went to the left rear door, the same one he had used to exit the car and said, “Me open car.” When he opened the back left door, the trooper noticed that the door panel wiggled. He lifted the door panel, looked under it, and observed two yellow packages, which subsequent testing proved to be 4.4 pounds of 79 percent pure cocaine. Appellant and Moreno were arrested, and the car searched. No more contraband was unearthed, but the trooper discovered other hidden compartments: one on the other backseat door panel; one in the frontseat armrest; and one in the dashboard just above the glove compartment. Another trooper searched the trunk and found approximately $55,000 in $20, $50, and $100 bills divided into eight rubber-banded packets, stuffed in tennis shoes and in a suitcase. The trooper searched appellant and Moreno and found a rubber-banded packet of approximately $4,000 in Moreno’s waistband, under his shirt. The officer opined that appellant was “surprised” by the discovery of $4,000 on Moreno’s person. Appellant had about $200 in his briefcase, and his round-trip, Miami-Boston-Miami airline ticket reflecting a Boston arrival on Friday, December 11, and a departure on the afternoon of Sunday, December 13.

Appellant testified that he was a resident of Florida who had flown to Boston, Massachusetts, on Friday, December 11, to discuss the sale of his nightclub with a man named Rodriguez. The two held their meeting in the Boston airport. Appellant had planned to spend the weekend in Boston with Rodriguez, but was forced to change those plans when Rodriguez stated he had business in New York and had to leave. Appellant then called his wife, who worked for a travel agency in Miami, to arrange an earlier flight back to Miami. While he was on the phone, he was greeted in the airport by a passerby, Moreno, who was also an acquaintance. He finished his telephone conversation and told Moreno of his trip and his predicament. Moreno said he was driving to Miami and asked appellant to accompany him to help with the driving. According to appellant, Moreno drove first and then appellant took the wheel. Appellant sat in the front passenger seat when he was not driving.

On December 12, 1987, the date of the alleged offense, OCGA § 16-13-31 (a) provided that “[a]ny person . . . who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10% or more of cocaine . . . commits the felony offense of trafficking in cocaine. . . .” Ga. L. 1986, p. 397, § 1. The statute, since amended, required actual possession in order to sustain a conviction for trafficking (Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988); Ramsay v. State, 175 Ga. App. 97 (7) (332 SE2d 390) (1985)), and mere presence near hidden contraband was not enough to support a criminal conviction requiring actual possession. See In the Interest of C. A. A., 187 Ga. App. 691, 693 (371 SE2d 247) (1988). However, this court, in a recent en banc decision, held that the driver of an automobile in which contraband and cash were discovered was in joint actual possession of the contraband with the car owner/procurer/passenger. Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989). In light of the decision in Cochran, we are compelled to hold that the evidence presented in the case at bar was sufficient for a rational trier of fact to conclude appellant was in actual possession of the hidden contraband, and convict him of trafficking in cocaine. Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 9, 1989

Rehearing denied March 22, 1989

T. Stanley Sunderland, Herbert Shafer, L. Paul Cobb, Jr., for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Assis tant District Attorney, for appellee.

2. Appellant next contends that the trial court erred in charging the jury that it was authorized to convict appellant of trafficking in cocaine if it concluded beyond a reasonable doubt that appellant had actual or constructive possession of the cocaine.

As stated earlier, at the time of appellant’s alleged offense, OCGA § 16-13-31 (a) (1) provided that “[a]ny person who ... is knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10% or more of cocaine . . . commits the felony offense of trafficking in cocaine. . . .” Ga. L. 1986, p. 397, § 1. In Lockwood v. State, supra, the Supreme Court reversed a conviction for trafficking in cocaine on the ground that a charge identical to the one now before us authorized the jury to convict the defendant based on a finding that he was in constructive possession of the cocaine while the statute clearly required a finding of actual possession. Id. at 798. See Coleman v. State, 189 Ga. App. 366 (7) (375 SE2d 663) (1988); Deych v. State, 188 Ga. App. 901 (2) (374 SE2d 753) (1988); Chews v. State, 187 Ga. App. 600 (6) (371 SE2d 124) (1988).

The State seeks to distinguish this case from Lockwood and its progeny, and maintains it is controlled by this court’s decisions in Partridge v. State, 187 Ga. App. 325 (5) (370 SE2d 173) (1988); and Raines v. State, 186 Ga. App. 239 (4b) (366 SE2d 841) (1988). In each of the cases cited by the State, however, the trial court took care to instruct the jury that a conviction for trafficking in cocaine was authorized only if the jury concluded beyond a reasonable doubt that the defendant had actual possession. No such limiting instruction was given in the case at bar. Accordingly, appellant’s conviction must be reversed.

We note that the General Assembly acted swiftly following the Lockwood decision to amend OCGA § 16-13-31 (a) by removing actual possession as an essential element of the crime. Ga. L. 1988, p. 420, § 2, effective March 28, 1988. Thus, the error mandating reversal in the case at bar will soon run its course.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    77509, 77510.
    MAYACAMAS CORPORATION v. GULFSTREAM AEROSPACE CORPORATION; and vice versa.
    (380 SE2d 303)
   Benham, Judge.

These two cases arose as a result of breach of contract claims that Mayacamas Corporation and Gulfstream Aerospace Corporation asserted against each other. We have consolidated the cases in the interest of judicial economy. The threshold question to be resolved is whether the Georgia court that tried the cases had personal jurisdiction over the defendant Mayacamas under the Georgia Long Arm Statute (OCGA § 9-10-91). Mayacamas contends that it did not, and we agree.

Mayacamas, a California corporation, contracted to purchase an aircraft, the G-IV, from Gulfstream, a Georgia corporation with headquarters in Savannah. The aircraft had not been constructed at the time of the agreement, but Mayacamas, relying on certain representations allegedly made to it by Gulfstream representatives, entered into the contract and made a payment as scheduled based on assurances that it would receive one of the first several aircraft produced. When Mayacamas allegedly discovered that it had been misled by Gulf-stream’s agents, it refused to make further payments and attempted to rescind the contract. Using Georgia’s Long Arm Statute, Gulf-stream filed suit in Savannah against Mayacamas for breach of contract. Mayacamas countersued for breach of contract, fraud, negligent misrepresentation, and breach of duty of good faith and fair dealing, and moved to dismiss the case for lack of personal jurisdiction, denying that it had transacted business in Georgia within the meaning of OCGA § 9-10-91 (a). The trial court denied the motion to dismiss, and the case was tried before a jury. In the course of the trial, Mayacamas again raised the jurisdictional issue, and its motion to dismiss was again denied. The jury found in favor of Mayacamas in the main case and in its countersuit, and awarded it $900,000 in damages. Mayacamas moved for a new trial, which was denied. It appeals from the denial of its motion, raising the jurisdictional question and several other errors allegedly committed at trial (Case No. 77509). Gulf-stream cross-appeals, asserting errors regarding the admission of evidence and other rulings at trial (Case No. 77510).

1. We conclude that the trial court erred in failing to grant Mayacamas’ motion to dismiss for lack of personal jurisdiction when that motion was made during the trial. All of the evidence produced at trial, taken in the light most favorable to Gulfstream, was not sufficient to establish that the Superior Court of Chatham County had personal jurisdiction over Mayacamas.

Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: “(1) Transacts any business within this State. . . .” This has been interpreted to mean that “purposeful acts” must have been performed by the defendant to tie it to the State, and “[m]ere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the ‘Long Arm’ statute. [Cit.]” Wise v. State Board &c. of Architects, 247 Ga. 206 (2) (274 SE2d 544) (1981). See also Commercial Food Specialties v. Quality Food Equip. Co., 176 Ga. App. 892 (338 SE2d 865) (1985); Capital Assoc. v. Gallopade Enterprises Intl., 172 Ga. App. 504 (323 SE2d 842) (1984). The United States Supreme Court has held that an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum, and that the contract is “ ‘ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.’ [Cit.] It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing—that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 479 (105 SC 2174, 85 LE2d 528) (1985).

The facts in the case before us show that in early 1983, Gordon Lee Stubbs, an aircraft broker who was a consultant to Mayacamas and other companies, traveled to Savannah while researching large used aircraft, including a Gulfstream airplane, the Gulfstream Two. Stubbs happened to meet a Gulfstream salesman, Hank Strumph, who suggested that Stubbs buy a new Gulfstream G-IV, the aircraft in question, and resell it at a profit. After that conversation, Mayacamas and Gulfstream entered into negotiations for the purchase of the G-IV, which was not yet in production. The negotiations were conducted by letter, telephone, telex, and meetings held in California. The parties agreed on contract terms, and the contract was signed by Mayacamas’ president, Mosher, in California on June 1, 1983, and was mailed to Savannah and signed by Gulfstream’s representative on June 7, 1983, at which time it became a binding agreement. The contract stated, inter alia, that Mayacamas would pay $13,470,000 in several installments for the jet before delivery; that the aircraft was due for completion and delivery on or before February 1987; that once it was delivered, certain training and maintenance would be required which would take place in Georgia; and that “the agreement shall be construed and interpreted in accordance with the laws of the State of Georgia.” Mayacamas paid the required 5 percent of the purchase price at the time it entered into the contract. In September 1984, Mosher and his wife traveled to Atlanta for the National Business & Aircraft Association meeting, which is held in a different location each year. While attending the show Mosher met with Strumph, who showed him a G-IV mockup. In July 1985, shortly before the second installment was due on the aircraft, Mayacamas checked with Gulf-stream representatives on the production schedule and was told that production was several months behind schedule and that additional jets were going to be built and sold to buyers before Mayacamas would receive its aircraft. Since this information contradicted that which Mayacamas had previously been given and did not comport with its expectations, Mayacamas refused to make additional payments and sought to rescind the contract. The suit and countersuit followed.

Applying the facts to the legal framework set out above, we find that the minimum contacts sufficient to link Mayacamas with this State in order that a court might exercise personal jurisdiction over Mayacamas did not exist. Basically, all that existed were the out-of-state negotiations that led to the signing of the contract and the contract itself, which the Supreme Court in Burger King indicated was not sufficient to meet the minimum contacts requirement. There was no subsequent course of dealing established between the parties as a result of the contract, nor did the future consequences of the contract come to fruition. Mayacamas did nothing beyond entering into the contract that constituted a purposeful engagement of activities within the forum. The fact that , the company’s president attended a trade show that was held in Atlanta on one occasion was fortuitous, and cannot be said to constitute transacting business in this state without a showing that his attendance was important to the performance of the contract. Compare Prosser v. Hancock Bus Sales, 181 Ga. App. 642 (353 SE2d 529) (1987), in which personal jurisdiction was found to exist over the out-of-state buyer of buses who came to Georgia to inspect and accept or reject the merchandise and to deliver payment therefor at that time. This court found that because those activities were clearly important to the performance of that contract, the exercise of jurisdiction over the defendant was justified.

Neither are we persuaded by the argument that the “choice of law” provision conferred jurisdiction over Mayacamas in Georgia. The U. S. Supreme Court in Burger King, supra, stated that “such a provision standing alone would be insufficient to confer jurisdiction, . . .” and that only when the provision was considered in light of the 20-year interdependent relationship the defendant had established with Burger King’s Miami headquarters did it reinforce his deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there. 471 U. S. at 482. In Burger King, the contract provided that “ ‘the choice of law designation does not require that all suits concerning this Agreement be filed in Florida,’ ” a statement that the court found “reasonably should have suggested to Rudzewicz that by negative implication such suits could be filed there.” Id. fn. 24. There was no such clause in the contract under consideration here, and the mere statement that Georgia law would apply implied that suit would be brought in California but that California law would not apply. To further distinguish the Burger King case from our own, it is clear that Rudzewicz reaped the benefits that inured to him from the contract for over two years while operating his franchise, i.e., use of trademarks, trade names, company expertise, or training. Mayacamas, on the other hand, had received no benefit from its contract—it was still executory at the time of the alleged breach. All it had done was make a 5 percent down payment on a jet that did not exist, and all it had received was the promise that it would get a jet once it was built. Therefore, Mayacamas had not reinforced its deliberate affiliation with the forum state as had Rudzewicz. The choice of law provision, “standing alone,” was insufficient to confer jurisdiction. For the reasons outlined above, we find that the trial court erred in denying Mayacamas’ motion to dismiss for lack of personal jurisdiction. See also Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987).

Decided March 1, 1989

Rehearing denied March 23, 1989

Oliver, Maner & Gray, James L. Pannell, Wendy W. Williamson, for appellant.

Adams, Gardner, Ellis, Inglesby & Falligant, Brent Savage, Thomas A. Nash, Jr., George L. Lewis, for appellee.

2. In light of the decision reached in Division 1 of this opinion, the other enumerations of error raised by Mayacamas in its appeal and by Gulfstream in its cross-appeal are rendered moot and we need not address them. See Saunders v. Padovani, 258 Ga. 866 (375 SE2d 853) (1989).

Judgment reversed in Case No. 77509. Appeal dismissed in Case No. 77510.

McMurray, P. J., and Pope, J., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77348.
    LEE v. DEPARTMENT OF TRANSPORTATION.
    (380 SE2d 726)
   Sognier, Judge.

The Department of Transportation condemned a 20 by 200 foot strip from a larger parcel of land owned by Julian Lee as part of the widening of Cleveland Avenue in Fulton County. After the trial court granted the DOT’s motion in limine regarding evidence of consequential damages to the remainder of the property, the jury returned a verdict for the value of the taken property, as stipulated by the parties. Lee appeals.

The trial court erred by excluding evidence of the damages to appellant’s remaining property caused by the condemnation which appellant incurred after the date of the taking of the frontage property. The record, as perfected by appellant, reveals that at the time appellant purchased the property, it was legally capable of accommodating a 14,000 square foot shopping center. The square footage amount was regulated by certain City of Atlanta building codes under which the maximum square footage of a commercial building was calculated according to the number of parking spaces available for the building. Appellant began, by razing the prior structures on the property and submitting building plans for. a 14,000 sq. ft. structure pursuant to the City’s building regulations, to develop his property for that purpose. Appellant applied for a building permit but before he could obtain approval to build a 14,000 sq. ft. structure and before the building could be constructed, the DOT announced its plan to widen Cleveland Avenue. Appellant was informed that the DOT would have to condemn a 20 by 200 foot strip of his property fronting the avenue. Based on the calculated loss of parking spaces, only a 10,400 sq. ft. shopping center could be constructed on the remaining property, and the building permit issued by the City of Atlanta pursuant to appellant’s application reflected that smaller structure.

The evidence is uncontroverted that frontage property was condemned and that appellant did lose the extra parking spaces necessary to support a 14,000 sq. ft. commercial building. The taking of the frontage property directly caused the reduction in the square footage of the building the remaining property could legally accommodate. The evidence appellant introduced detailed the damages to his remaining property from the difference in value between the 14,000 sq. ft. shopping center he could have constructed but for the loss of the parking space property taken by the DOT and the 10,400 sq. ft. shopping center he could legally construct on the remainder. However, the trial court excluded this evidence and prevented appellant from proving and recovering the consequential damages to his remaining property solely because the City of Atlanta, recognizing the impact the DOT’s project would have on appellant’s property, had rendered its decision permitting a 10,400, rather than a 14,000 sq. ft. building prior to the actual date of taking.

Appellant does not seek to recover compensation for lost rent or other damages to his remaining property incurred prior to the date of taking. The compensation appellant seeks stems from losses resulting from the 3,600 square foot diminution in the size of his shopping center after the taking. Appellant argues the trial court’s evidentiary ruling on the DOT’s motion in limine penalized him by preventing his recovery of compensation for losses directly caused by the condemnation dating after the taking merely on the basis that the City of Atlanta’s decision to deny him a permit for the larger building was rendered before the taking. Appellant asserts that had the City delayed its decision until after the actual date of taking or had his 14,000 sq. ft. building been still in the planning stage as a future use of the property, his evidence would have been admissible, see, e.g., Department of Transp. v. Pilgrim, 175 Ga. App. 576, 578-579 (2, 3) (333 SE2d 866) (1985); Klumok v. State Hwy. Dept., 119 Ga. App. 505 (1) (167 SE2d 722) (1969), as evidence tending to show the impact of the taking on plans for the remaining property, and thus to exclude appellant’s evidence on the fortuity of the City’s timing in rendering its decision would be inequitable. We agree.

It is irrelevant when a prohibition is placed on property where it is clear that the condemnation is the reason why the property failed to avoid that prohibition and where the damages sought are the damages occurring after the date of taking. In the case at bar, it is uncontroverted that the sole reason for the City’s denial of appellant’s permit for a 14,000 sq. ft. building was its determination that the announced taking would eliminate the parking spaces necessary to accommodate the larger building and that the remaining property was legally able to support only the building with the lesser square footage. Thus, although appellant clearly cannot recover for damages incurred prior to the actual taking, see Housing Auth. of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966), he is entitled to compensation, upon proper proof, for the difference between the building he could have built but for the direct result of the condemnation (14,000 sq. ft.) and the building he was limited to as a direct consequence of the taking (10,400 sq. ft.). See generally Wright v. MARTA, 248 Ga. 372, 376 (283 SE2d 466) (1981); Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (366 SE2d 160) (1988).

The DOT cites this court to Department of Transp. v. Poole, 179 Ga. App. 638 (347 SE2d 625) (1986). The DOT’s reliance on Poole, however, is misplaced because appellant is not relitigating the denial of his building permit here or alleging that collusion existed between the DOT and the City in the denial of his permit. The validity of the City’s decision to permit only a 10,400 sq. ft. building on appellant’s property is not in issue: there is no suggestion that the City incorrectly calculated the square footage or misapplied its building codes, nor does it appear the City was required to wait until the property was actually condemned before ruling on appellant’s permit. Since it is uncontroverted the condemnation did occur, the City’s decision limiting the building size was correct and any appeal from that decision, contrary to the dissent’s intimation, would have been futile.

Josh Cabaret v. Dept. of Transp., 256 Ga. 749 (353 SE2d 346) (1987) does not preclude appellant from recovering post-taking damages sustained by the remaining property as a result of the taking. Josh Cabaret is an inverse condemnation case in which the appellant therein sought to recover expenses it had incurred in anticipating a taking that never materialized. The DOT in Josh Cabaret had announced plans to condemn the building in which appellant was a corporate lessee. Despite the DOT’s express advice that no move was required before September 1982, appellant voluntarily moved in August 1982. Shortly thereafter, the DOT’s project and all the condemnation actions were halted. Rejecting the corporate lessee’s claim for damages, the Supreme Court held that “losses occurring to property before the actual date of taking are not compensable in direct condemnation actions. Thus, while there is a diminution in value as a result of anticipated condemnation, no compensation may be paid. [Cit.]” Id. at (3).

Josh Cabaret is inapplicable here because the losses appellant incurred were not the result of anticipated condemnation, but were the direct result of the condemnation itself, which fortuitously were manifested prior to the date of actual taking. Furthermore, contrary t( the dissent’s contention, Josh Cabaret does not stand for the proposition that a condemnee cannot recover the diminution in the markel value of his remaining property simply because the legal result of that taking under applicable building codes was announced prior to the actual taking, rather than subsequent to it. Nothing in Josh Cabaret supports the dissent’s opinion that the result of the fortuitous timing of the City’s denial of appellant’s permit is to render inadmissible any evidence of the consequential damages to appellant’s property stemming from the diminution in square footage on the theory that such damages are not compensable because they reflect a loss occurring to the property before the actual date of taking. To reach such an opinion is to misconstrue the language in Josh Cabaret as providing authority to deprive a condemnee of the just and adequate compensation due him under Art. I, Sec. Ill, Par. I of the Constitution of Georgia, 1983.

Therefore, since evidence reflecting the consequential damages to appellant’s remaining property caused by the condemnation after the date of taking was improperly excluded on the basis that the City of Atlanta’s decision to deny appellant a permit for the larger building was rendered before, rather than after, the actual date of taking, the trial court’s order is reversed.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

I must respectfully dissent from the majority opinion because I cannot agree with the majority’s interpretation of Josh Cabaret v. Dept. of Transp., 256 Ga. 749 (353 SE2d 346) (1987).

The majority contends that Josh Cabaret is distinguishable from the case at bar because the leaseholder in Josh Cabaret vacated the premises one month in advance of the announced condemnation, and the condemnation was cancelled before the announced date and consequently never occurred. In the instant case Lee’s application for a building permit was filed during the winter of 1983, and in June 1983 the City of Atlanta denied the permit as submitted, on the basis that the DOT had announced in May 1983 that a critical strip of the land would be condemned. It was not until May of the next year, 1984, that the taking actually got under way, with DOT making Lee an offer for the strip in question. The fact that in Josh Cabaret the taking never actually occurred is of absolutely no legal significance vis-a-vis the issue here.

Thus on its facts the instant case is not, as the majority contends, distinguishable from Josh Cabaret on the basis asserted in the majority opinion. In both cases the loss to the subject property occurred after the plans for condemnation were announced but before the actual date of taking; the losses incurred in both cases were the direct result of an anticipated condemnation.

Decided March 10, 1989

Rehearing denied March 23, 1989

Thomas L. Washburn III, for appellant.

. Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, James S. Howell, Special Assistant Attorney General, Weiner, Dwyer, Yancey & Mackin, Dennis S. Mackin, J. Matthew Dwyer, Jr., Thomas C. Dempsey, for appellee.

Although I certainly concur in the majority’s expression of a desire for a less “inequitable” result than that dictated by Josh Cabaret, the prerogative of altering the law to fit its own desires belongs not to the courts but to the legislature. The rule enunciated in Josh Cabaret, id. at 3, is clearly applicable to the facts of the instant case and should be controlling.

I therefore respectfully dissent.

I am authorized to state that Chief Judge Carley and Presiding Judge McMurray join in this dissent.


text:
    77565.
    PROPHITT v. THE STATE.
    (381 SE2d 83)
   Benham, Judge.

This is the second appearance of this case before this court. See Prophitt v. State, 183 Ga. App. 332 (358 SE2d 892) (1987). Appellant again appeals the judgment of conviction for two counts of aggravated assault.

1. Appellant reprises his contention that the trial court erred in admitting evidence of a 1973 conviction of aggravated assault with a pistol. This time he argues that the State did not prove him to be the same Ben Prophitt named in the 1973 document. We find no error. Although appellant objected to the introduction of the document, he produced no proof to the contrary as required by Glass v. State, 181 Ga. App. 448 (1) (352 SE2d 642) (1987). The concordance of names (Ben Prophitt/Ben David Prophitt) was sufficient proof of identity under the circumstances. Id. We also reaffirm the admission of the evidence on the grounds set out in appellant’s earlier case. Prophitt, supra, Division 2.

Decided March 10, 1989

Rehearing denied March 23, 1989

2. Appellant takes the position that his trial attorney denied him the Sixth Amendment right to be represented by competent counsel and effective assistance of counsel by pursuing an insanity defense at trial, rather them one of self-defense. This issue was not raised during the first appeal of this case. “ ‘To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cits.]’” Waddell v. State, 190 Ga. App. 499 (379 SE2d 592) (1989). “The complaining defendant must make both showings. His failure ‘to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.’ [Cit.] A reviewing court need not ‘address both components if the defendant makes an insufficient showing on one,’ [cit.], nor must the components be addressed in any particular order. [Cit.]” Ford v. State, 255 Ga. 81, 85 (335 SE2d 567) (1985). Our review of the record shows that appellant and the other witnesses testified to the same basic set of facts: that while appellant and the two victims, Barrett and Kirk, were working, appellant and Kirk started arguing. Appellant picked up a hammer, one of his work tools, and struck Kirk with it at least twice and shot him with a revolver. Appellant then ran through the work facility to another area where Barrett was operating equipment, and shot Barrett three times with the gun. Only appellant’s testimony supports his theory of self-defense, and it is far from compelling. None of the other witnesses gives an indication that appellant was defending himself in the incident. It is highly unlikely that the jury would have found appellant not guilty had the self-defense theory been more aggressively pursued at trial, and so we find that appellant failed to establish the prejudice component of his Sixth Amendment claim. His rights were not violated in this regard.

3. Appellant claims that the trial court’s charges about the burden of proving appellant’s insanity were confusing, inaccurate, and burden-shifting. We disagree. Reviewing the charge as a whole, we find that the court properly charged the jury that appellant carried the burden of proving his insanity, and otherwise acted in accordance with the approach approved in Keener v. State, 254 Ga. 699 (334 SE2d 175) (1985).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.

Dale P. Smith, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

T. Andrew Dowdy, amicus curiae.


author: Pope, Judge.

text:
    77595.
    BUICE v. THE STATE.
    (380 SE2d 741)
   Pope, Judge.

Appellant was convicted of burglary, armed robbery, false imprisonment, aggravated assault upon a police officer, possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon. He was sentenced to serve life plus fifty years. In his appeal, appellant enumerates 38 errors. He was tried jointly with his accomplice.

1. In Enumerations 1-3, 31, 37 and 38 appellant urges the general grounds, and the failure of the trial court to grant appellant’s motions for directed verdict and new trial. The evidence at trial authorized the jury to find that on April 26, 1987 at approximately 6:45 a.m., appellant and an accomplice forced their way into the Michaels’ residence at the point of a gun. Appellant held Mrs. Michael with a gun to her head threatening to kill her in order to convince Mr. Michael to put down the rifle he had grabbed when he realized his wife was in danger at the door. When Mr. Michael complied, appellant forced the two to lie face down on the floor. He then gave his accomplice the gun and began looking for objects of value in the house. Items were taken from the kitchen and bedroom, put in a pillowcase and laid in a pile near the front door. All the guns and rifles Mr. Michael had in his bedroom closet were taken and put in the pile. The Michaels’ oldest son was upstairs asleep when the pair entered. When he realized what was happening, he called police and then feigned sleep when appellant checked his room.

Just as the pair of intruders appeared to be preparing to leave, Officer McGill of the Gwinnett police appeared at the door. He announced that he was a policeman and peered inside. Appellant had hidden behind the door. He fired a shot, striking Officer McGill in the face. Appellant then gave the gun to his accomplice and fled from the house. He was apprehended almost immediately by other police on the scene. His accomplice surrendered.

We find that a rational trier of fact could reasonably have found proof of appellant’s guilt of each of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Appellant particularly argues that the evidence is insufficient regarding the count of armed robbery because nothing was taken from the house. However, the State did prove tht appellant moved items in the house thereby transferring dominion of the property from the owners to himself. This is sufficient asportation. James v. State, 232 Ga. 834 (209 SE2d 176) (1974).

2. Appellant argues in Enumerations 4 and 5 that the trial court erred in refusing to grant his motions for additional peremptory strikes and to sever. These enumerations are without merit. Spivey v. State, 186 Ga. App. 236 (3, 4) (366 SE2d 838) (1988).

3. In Enumerations 6, 8, 9, 10 and 11 appellant argues that the trial court erred in failing to grant his motion for a change in venue and for failing to excuse for cause four jurors who on voir dire said they had heard a radio report that the trial for the shooting of a police officer was to begin. In each instance, the juror said he or she knew of no other facts concerning the case and that no names were used in the radio report. Each also said he or she could lay aside any previous information each had and decide the case based on what was presented in court.

“The test as to whether pretrial publicity has so prejudiced a case that an accused cannot receive a fair trial is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence of the accused from reading [or hearing] such publicity. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can 'lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Citations and punctuation omitted.) Harper v. State, 249 Ga. 519, 529-530 (292 SE2d 389) (1982).

Our review of the record on voir dire shows that the jury pool from which appellant’s jury was selected met the test set out in Harper. Appellant argues that a total of 9 jurors (5 who were excused, and the 4 complained of here) out of 57 potential jurors, or roughly 16 percent of the pool, was strongly influenced by pretrial publicity. Even were we to accept this assertion, such a percentage would not, alone, be sufficient to show the need for a change of venue. Collier v. State, 244 Ga. 553, 572 (261 SE2d 364) (1979) (20 percent dismissal rate corroborates absence of prejudicial bias); Butler v. State, 231 Ga. 276 (2) (201 SE2d 448) (1973) cert. denied, 420 U. S. 907 (1974) (36 percent dismissal rate corroborates absence of prejudicial bias). The court did not err in refusing the motion for change of venue. Nor do we find abuse of discretion by the trial court in failing to excuse for cause the jurors mentioned above.

4. There is no merit to appellant’s Enumeration 7 in which he argues that a mistrial should have been granted because the district attorney improperly commented that he would expect a juror to believe a police officer over a six-time offender. The exchange occurred when the State was trying to ascertain whether the juror would believe a police officer over all others. The juror said, “You asked the question would I believe a police officer over a doctor, lawyer, no, I would not. Would I believe a police officer over a six-time offender — maybe, I don’t know.” The district attorney replied, “We would expect that . . . .” and tried to clarify. At this point, defense counsel objected. The district attorney apologized for his reflexive agreement with the statement to the court. We agree with the court that the exchange in no way referred to appellant or his record.

5. In Enumerations 12-22, appellant argues that the trial court erred in allowing hearsay statements into evidence. The objections are to testimony of Steven Michael who was allowed to testify concerning what he could hear going on downstairs when the men first came into the house. From what he heard, Steven Michael concluded his parents needed help and called police. Appellant argues this is hearsay because it is an out-of-court statement made by an unidentified third-party. There is no merit to this argument. The statements are not hearsay. Hewitt v. State, 127 Ga. App. 180 (2) (193 SE2d 47) (1972).

6. We find no merit in appellant’s Enumerations 23-27, in which he argues that the court erred in admitting certain photographs relating to the wounds suffered by Officer McGill. Brooks v. State, 258 Ga. 20 (3) (365 SE2d 97) (1988). In Enumerations 28-30, appellant argues that the court erred in allowing the physician who treated the officer to testify regarding treatment given as a consequence of the wounds the officer received. There is no merit to this argument. Graham v. State, 171 Ga. App. 242 (15) (319 SE2d 484) (1984).

7. In Enumeration 32, appellant argues that the trial court erred in failing to grant his motion for mistrial because of the statement made by his co-defendant during his testimony that appellant was known to carry a gun. There is no error. Crowder v. State, 233 Ga. 789 (5) (213 SE2d 620) (1975).

8. Appellant’s remaining enumerations concern the charge of the court. The court did not err in refusing to charge on the lesser included offenses of robbery by intimidation and theft by taking. The evidence showed a completed act of armed robbery. Davis v. State, 181 Ga. App. 32 (351 SE2d 252) (1986). Nor did the court err in refusing to give apellant’s requests to charge on attempt. The evidence showed completed acts. The court’s charge on parties to a crime was proper. The charge given by the court properly covered the burden of proof issue.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided March 13, 1989

Rehearing denied March 23, 1989.

J. Curtis Hanks, for appellant.

Thomas C. Lawler III, District Attorney, for appellee.


text:
    77657.
    BARTLETT et al. v. NORTHSIDE REALTY ASSOCIATES, INC.
    (380 SE2d 744)
   Pope, Judge.

Appellant-plaintiff John S. Bartlett was injured when the vehicle which he was driving was struck by a vehicle driven by Denise A. Joiner. Bartlett and his wife instituted this action against Joiner and appellee Northside Realty Associates, Inc., seeking damages for his physical injuries and her loss of consortium. Appellee-Northside moved for summary judgment on the ground that Joiner was an independent contractor and not its servant. Appellants, in addition to filing their brief in opposition to Northside’s motion for summary judgment, also filed a motion for partial summary judgment contending that, as a matter of law, Northside should be vicariously liable for appellants’ injuries. The trial court granted Northside’s motion for summary judgment and denied appellants’ motion for partial summary judgment. This appeal follows that order.

“The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer. (Cits.) In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. (Cit.) Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. (Cits.) (Cit.) On the other hand, where the contract specifies that the employee’s status shall be that of independent contractor but at the same time provides that he shall be subject to any rules or policies of the employer which may be adopted in the future, no such presumption arises. (Cits.) McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982).” (Punctuation omitted.) Allison v. Nat. Assn. for Self- Employed, 187 Ga. App. 592, 593 (370 SE2d 841) (1988).

In the case at bar defendant Joiner is a licensed real estate agent and Northside is a licensed real estate broker. At the time of the incident in question, Northside and Joiner had entered into a written contract which provided, in pertinent part, as follows: “[T]he Salesperson shall render all services under this agreement as an independent contractor and not as an employee or servant of the broker, and that salesperson is not covered by Workers’ Compensation laws. Nothing herein contained shall be construed to be inconsistent with the independent contractor relationship or status.” The contract also contained the following provisions: The salesperson would diligently use her best efforts to sell, lease or rent real estate listed with the broker; the salesperson would be compensated solely by commissions to be determined by the broker; the salesperson was free to set her own hours and time of work; the salesperson was responsible for her business expenses and transportation; the salesperson was responsible for carrying adequate personal and liability insurance to protect herself and/or the broker; the salesperson was not required to attend sales meetings or participate in training programs (except as required by law) and would not be treated as an employee for federal tax purposes.

Despite the express terms of the contract purporting to create an employer-independent contractor relationship, appellants argue that Joiner was subject to extensive rules and regulations promulgated by Northside, including Northside’s written policy manual, which demonstrated Northside’s extensive control over Joiner. Appellants also rely on the deposition testimony of both Joiner and Sally Wash-burn, the managing broker in the Northside office out of which Joiner worked. Although Joiner testified in her deposition that she was not familiar with the provisions of the policy manual, and although the policy manual was not specifically mentioned in the contract between Northside and Joiner, there is no dispute that Northside’s agents were directed to follow the provisions contained therein. There is also no dispute that Northside had the right to sever its relationship with salespersons who violated their contract or failed to follow North-side’s policies and procedures.

Contrary to appellants’ assertions, the provisions of the policy manual and the deposition testimony of Joiner and Washburn support the conclusion that the relationship between Joiner and North-side was that of employer-independent contractor and not employer-servant. The policy manual provided, and Washburn and Joiner testified, that the assumption of office duty and the attendance of sales meetings by associates was voluntary. Joiner further testified that she rarely took office duty and that she participated in sales meetings and weekly caravans to view new listings because she felt it benefited her. Although both Washburn and Joiner testified that participation in these activities was encouraged, Joiner testified that she had never been reprimanded about her failure to assume office duties or to attend sales meetings.

Appellants also point to the fact that the policy manual provided that incoming calls were to be answered and handled in a specified manner. However, these provisions relate primarily to the duties of the salaried office staff in that agents acted only as a backup for answering calls when it was necessary for the secretary to be away from the telephone. The manual also specified a holiday and sick leave policy for salaried (secretarial) employees, but not for agents, who were paid on a commission basis.

Washburn testified in her deposition that Northside furnishes its agents a desk, and makes available to them a secretary, telephone and certain supplies such as signs, file folders, stationery, message pads, pens and pencils. Both Washburn and Joiner testified that although Northside pays for a certain quota of classified advertising, any additional promotional expenses are paid for by the agents, including supplies and expenses incidental to prospecting for new business or mass mailings. Washburn testified that Northside does not reimburse agents for seminar expenses, and that it does not provide agents with transportation or reimburse agents for the use of their own car.

Joiner testified that she has keys to the office which enable her to come and go as she pleases. She further testified agents have the option to pick their own closing attorneys, and that Northside does not publish a list of recommended attorneys although at certain times it may instruct agents not to use a particular attorney. Agents, however, are instructed to use Northside’s forms and contracts. Joiner testified that she pays for some of her own office supplies, and for the bulk of her promotional literature, as well as all of her own insurance premiums. She also testified that she does not have a paid vacation nor does she have to ask for permission for vacation days. Northside provides no retirement benefits and does not withhold income taxes from commissions paid to agents.

“There are a plethora of additional circumstances cited by [appellants] too numerous to further burden an already lengthy opinion. Suffice it to say that we have painstakingly reviewed each and every circumstance cited. The overwhelming number of these circumstances is simply not inconsistent with the employer/independent contractor relationship when viewed in light of the record as a whole. Those few circumstances which on the surface appear to be inconsistent with the employer/independent contractor relationship are either neutralized by [Northside’s] uncontradicted explanations which adequately explain the perceived inconsistency, or are so inconsequential when viewed in light of the evidence to the contrary as to establish no genuine issue of fact. What the evidence clearly does establish is a paternalistic relationship whereby [Northside] provides for or assists [Joiner in her activities as a real estate agent]. What the evidence does not establish is any right or assumption by [Northside] to control the time, manner, and method of the performance of [Joiner’s] work under the contract, nor does it establish [Joiner] as [North-side’s] alter ego. Compare Wood v. Brunswick Pulp &c. Co., 119 Ga. App. 880 (169 SE2d 403) (1969). Accordingly, the trial court properly granted [Northside’s] motion for summary judgment [and denied appellants’ motion for partial summary judgment] as to the doctrine of respondeat superior.” Slater v. Canal Wood Corp., 178 Ga. App. 877, 881-82 (345 SE2d 71) (1986). See also Bowman v. C. L. McCord Land &c. Dealer, 174 Ga. App. 914 (1) (331 SE2d 882) (1985); Morris v. Constitution Pub. Co., 84 Ga. App. 816 (67 SE2d 407) (1951).

Decided March 15, 1989

Rehearing denied March 23, 1989

Walter H. Beckham III, Mack S. Izenson, for appellant.

R. Chris Irwin & Associates, R. Chris Irwin, Robert M. Darroch, C. David Vaughn, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77729. 77730.
    J. F. BARTON CONTRACTING COMPANY v. SOUTHERN RAILWAY COMPANY. J. F. BARTON CONTRACTING COMPANY v. CENTRAL OF GEORGIA RAILROAD COMPANY.
    (380 SE2d 724)
   Pope, Judge.

In 1974, appellees filed suit in Clayton County Superior Court against appellant seeking to collect demurrage charges allegedly owed by appellant. These actions were brought pursuant to the provisions of the federal Interstate Commerce Act. (Currently codified as 49 USCA § 101 et seq.) No orders were filed in the cases between 1982 and 1987. To avoid the automatic dismissal of the cases mandated by OCGA § 9-11-60, appellees voluntarily dismissed the cases and refiled the actions in Fulton County (where appellant had moved its registered agent for service) pursuant to the provisions of OCGA § 9-11-61. (Georgia’s renewal or saving statute). Appellant then answered and moved for judgment on the pleadings, arguing that the actions were barred by the three-year statute of limitation imposed by the Interstate Commerce Act for such charges (formerly codified at 49 USCA § 16 (3) (a), now found at 49 USCA § 11706 (a)), and that application of OCGA § 9-11-61 to this federal cause of action was improper. The trial court denied the motion, and this court granted appellant’s application for interlocutory review. Held:

Appellant argues that this case is controlled by this court’s decision in Smith v. Seaboard System R., 179 Ga. App. 822 (348 SE2d 97) (1986), in which the court held that Georgia’s renewal statute did not apply to save a cause of action filed pursuant to the Federal Employers’ Liability Act (FELA) that was dismissed automatically under the provisions of OCGA § 9-11-60. In Smith, this court relied on the decision of Burnett v. N. Y. Central R., 380 U. S. 424 (85 SC 1050, 13 LE2d 941) (1965), to conclude that the federal policy of uniform national application of the limitation period provided in the FELA preempted Georgia’s policy allowing renewal of actions. We are persuaded that the reasoning in Smith, supra, is applicable in the present case.

The Interstate Commerce Act, “ ‘being an act of the United States Congress, presents a Federal question. On all such questions the Supreme Court of the United States is the highest authority and its decisions are final’ [Cit.].” Smith at 822. The Supreme Court in Midstate Horticultural Co. v. Penn. R. Co., 320 U. S. 356 (64 SC 128, 88 LE 96) (1943), held that the limitation provision applicable to the collection of demurrage charges operates to extinguish the right of collection, and not merely to bar the remedy. Midstate at 364. In analyzing the question of whether parties may vary this limitation by private agreement, the court discussed the policies underlying the Interstate Commerce Act and the limitation provision applicable to the collection of demurrage charges. “[49 USCA § 11706] is an integral part of the Interstate Commerce Act and of the comprehensive scheme of regulation it imposes. The Act is affected throughout its provisions, with the object not merely of regulating the relations of carrier and shipper inter se, but of securing the general public interest in adequate, nondiscriminatory transportation at reasonable rates. Accordingly, in respect to many matters concerning which variation in accordance with the exigencies of particular circumstances might be permissible, if only the parties’ private interests or equities were involved, rigid adherence to the statutory scheme and standards is required. . . . With setting in such a statute, [§ 11706] expresses the specific policy of the Act with reference to the assertion of stale claims. . . . [T]his policy is one of uniformity ... of treatment . . . .” Midstate at 361 (Paragraph indention omitted.) “The paramount policy of [§ 11706] is to secure promptness in collection.” Id. at 367.

“The period of time within which an action may be commenced is a material element in [the] uniformity of operation [of a statute] which Congress would not wish to be destroyed by the varying provisions of the state statutes of limitation. The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity.” (Punctuation and citation omitted.) Burnett, supra at 433.

Based upon these principles, we hold that OCGA § 9-11-61 cannot operate to save a cause of action for collection of demurrage charges filed pursuant to the Interstate Commerce Act. The deliveries upon which these actions are based occurred in 1972 and 1973. The limitation contained in 49 USCA § 11706 (formerly 49 USCA § 16(3)), is measured forward from the time of delivery. Atchison, Topeka &c. R. Co. v. Benchcraft, Inc., 381 FSupp. 603, 604 (W.D. Mo. 1974). This method of measuring a limitation “is contrary to all judicial concepts of when a cause of action accrues.” Id. at 604. “Congress simply has discarded traditional judicial concepts in favor of the . . . uniform statutory period of delivery as the start of the limitation period.” Id. at 605. (Punctuation and citation omitted.)

Appellees had from 1974 to 1987 to prosecute their right of claim. They argue that they are in the position of having to rely upon the Georgia renewal statute solely because of the “unique” feature of Georgia law providing for automatic dismissal. Not to allow them to use the renewal statute would actually create non-uniformity because their cases would never have been threatened by automatic dismissal in federal court, appellees argue. We are totally unpersuaded by such arguments.

OCGA § 9-11-60 places a mandatory burden upon a plaintiff to obtain a written order of continuance or other written order at some time during a five-year span and see that it is entered in the record. Swint v. Smith, 219 Ga. 532 (1) (134 SE2d 595) (1964). Although appellees argue that they have actively pursued the cases and are victims of the crowded docket in Clayton County, we cannot avoid the conclusion that their failure to get an order within the five-year span from 1982 to 1987 does constitute “sleeping on their rights,” even though they did attempt to get an order placing them on the trial calendar one week before the five-year automatic dismissal was due to take effect.

The policy regarding the collection of demurrage charges is clear. Congress has mandated a uniform three-year period from the time delivery was made to bring an action. Once brought, a carrier must move diligently to prosecute the action. Thirteen years should be sufficient to conclude such an action. The trial court erred in refusing to grant appellant’s motion for judgment on the pleadings.

Judgments reversed.

McMurray, P. J., and Benham, J., concur.

Decided March 9, 1989

Rehearing denied March 23, 1989

Young & Murphy, Robert G. Young, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Rebecca G. McLemore, Kevin C. Greene, for appellees.


author: Sognier, Judge.

text:
    77842.
    ADAMS v. THE STATE.
    (381 SE2d 69)
   Sognier, Judge.

James Paul Adams appeals from his conviction on four counts of obtaining controlled substances by forgery and one count of attempting the same offense.

Construing it to support the verdict, the evidence at trial showed that Sabrina Thibodeau, appellant’s twelve-year-old niece, was arrested at a pharmacy when the pharmacist became suspicious of the signature on a prescription Thibodeau had presented for Percocet, a controlled substance. Thibodeau gave a statement to the police implicating appellant and his wife, and on the basis of that statement appellant and his wife were arrested and indicted. Appellant’s wife pled guilty to the charges against her and is not involved in this appeal. Testimony was presented from pharmacists at the drug store where Thibodeau was arrested that four other forged prescriptions had been presented within a period of one month, all for either Percocet or Percodan, controlled drugs, and all bearing the forged signature of Dr. Jack A. Brown, a local emergency room physician. Dr. Brown testified that the signature on the prescriptions was not his, that he had examined appellant twice at the hospital where he was employed on or near the dates appearing on the forged prescriptions, and that on one of those occasions he had prescribed Percocet. After presentation of a majority of the State’s evidence, a continuance was granted because Sabrina Thibodeau could not be located. A lengthy investigation and interrogation of family members was conducted by the judge, who found that appellant’s family was hiding the child, and that as she was unavailable to testify, her statement could be admitted into evidence.

In her statement given to the authorities, Thibodeau alleged that her uncle (appellant) and his wife had brought her to the pharmacy, given her eleven dollars in cash, and instructed her to fill the prescription, and to say it was for “Mary Ann Young.” She stated she had “done this a bunch of times here [in Whitfield County] and in Gordon County.” She thought she had taken as many as thirty prescriptions to a particular drug store in Gordon County. She further described how her aunt and uncle visited hospitals and doctors and stole prescription blanks and ran off without paying for the visit, and where they took the prescriptions to be filled.

1. The evidence of record is such that the jury was authorized to convict appellant of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by admitting Thibodeau’s statement into evidence because it was hearsay and its admission violated appellant’s right to confront the witness. However, OCGA § 24-3-1 (b) provides that hearsay evidence is admitted in specified cases from necessity. In Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), the Georgia Supreme Court, citing Ohio v. Roberts, 448 U. S. 56, 65 (100 SC 2531, 65 LE2d 597) (1980), held that the United States Supreme Court had “not interpreted ‘confrontation’ to signify the exclusion of every hearsay exception, and has provided [a] method to resolve confrontation challenges based on the admission of hearsay testimony: ‘. . . First, . . . the Sixth Amendment establishes a rule of necessity. In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. [Cits.] The second aspect operates once a witness is shown to be unavailable . . . . [0]nly hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule [may be admitted].” ’ [Cit.]” Higgs, supra at 608-609 (7). See also Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988). We find that Thibodeau’s statement meets these criteria as well.

The trial court made every effort to locate Thibodeau and obtain her attendance in court. The trial judge, after interrogating the child’s (and appellant’s) family, found that they were deliberately hiding.the child, shifting her from place to place and lying to deputies and others, to prevent her from testifying. The trial was continued to secure Thibodeau’s presence, and the child’s grandmother, with whom the child had been living, was ordered to produce her. When she was not produced, the court held the child’s grandmother in contempt, sentencing her to 10 days in jail. Not until all avenues were exhausted did the trial court allow the statement to be admitted into evidence. We find this effort satisfied the “necessity” requirement. Detective Leevan Kirk of the Whitfield County Sheriff’s Department took Thibodeau’s statement, and his testimony at trial established the voluntariness of Thibodeau’s statement pursuant to the criteria set forth in J. E. W. v. State, 256 Ga. 464, 467 (2) (349 SE2d 713) (1986). Circumstantial guarantee of its trustworthiness, see Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224, 226 (1) (173 SE2d 691) (1970), is provided by the fact that Thibodeau gave her statement immediately sifter being apprehended, in the course of an official investigation; that Detective Kirk testified she never recanted or sought to change her statement; and that her statement recounts particulars later corroborated by other evidence. See generally Higgs, supra at 608 (5). Accordingly, the trial , court did not err by admitting the statement into evidence.

3. Appellant maintains the trial court erred by failing to grant his motion for a directed verdict of acquittal because no evidence was adduced to corroborate the statement of Thibodeau, who was an accomplice. We find no merit in this enumeration. “Acknowledging that corroboration of the testimony by a single accomplice is necessary, OCGA § 24-4-8, our courts have held that the corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with [the] crime. [Cit.] ‘Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.’ [Cits.]” Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987). “ ‘The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence. [Cits.]’ [Cit.]” Cole v. State, 156 Ga. App. 288, 289-290 (1) (274 SE2d 685) (1980).

In addition to the testimony of Dr. Brown, which showed both access to the prescription blanks and familiarity with both the doctor’s signature and the drug and dosage, evidence that appellant engaged in other, similar transactions was admitted. Barbara Adams Voyles, Thibodeau’s mother and the sister of appellant, testified that she was on probation for obtaining controlled substances with forged prescriptions, and that it was appellant who gave her the forged prescriptions and told her to have them filled. We find that this was sufficient corroboration to authorize the jury to convict the appellant of the crimes charged.

4. Appellant also enumerates as error the admission of Voyles’s testimony. Appellant first argues that it was error to admit her testimony on the basis that the transactions were not similar because in the crimes charged a child has passed the prescription, whereas in the transaction testified to by Voyles an adult had the prescription filled. While that is true, we find that other similarities outweigh that distinction. In both cases, a third person was used to pass the prescription, the prescription was forged, and the drug for which the prescriptions were written was the same. In addition, the prescriptions in both cases were made out to someone other than the individual passing the prescription and the person passing the prescription was a member of appellant’s family who said she received it from appellant. We find “sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cits.]” French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976).

Decided March 8, 1989

Rehearing denied March 23, 1989.

James E. Toland, Jr., for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

Appellant also argues that the State’s motion to admit evidence of similar transactions was not made until four days after the jury was empanelled, and thus was not in compliance with Uniform Superior Court Rule 31.1. “Although Rule 31.1 requires the notice to be filed at least 10 days before trial, it also provides the time may be either shortened or lengthened by the judge. [Cit.] We interpret this as clothing the trial court with discretion which will not be controlled absent abuse.” Hall v. State, 181 Ga. App. 92, 93 (1) (b) (351 SE2d 236) (1986). Here, the reason the motion was made late was that the State did not learn of the existence of the similar transaction in question until the continuance caused by the disappearance of Sabrina Thibodeau. We find appellant was not prejudiced by the lateness of the motion, as he produced one of the witnesses he stated he needed to respond to this evidence. The other witness appellant desired to call in response to Voyles’s testimony was appellant’s brother, who had been in court previously and who the trial court found could have returned. There was ample basis for shortening the time, and we find no abuse of the trial court’s discretion.

Judgment affirmed.

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


text:
    77843.
    ARMSCORP OF AMERICA, INC. v. DAUGHERTY.
    (380 SE2d 729)
   Benham, Judge.

This appeal is from the grant of summary judgment to appelleedefendant in appellant’s suit for libel. Appellant manufactures and sells firearms and parts for firearms, and contended in its suit that the following advertisement in a national magazine devoted to firearms was defamatory of it: “M-14 AND FAL Are you one of those people who has paid for an M-14 or FAL (or receivers) and keep getting the run-around? If you are tired of financing someone’s programs or if you want your money back, drop me a line and tell me your story about your past or present experience with the company. Include copies of old or new correspondence, if you can. Something has to be done to fix this situation fast. Mail your complaint or comments to: M-14/FAL PROJECT P.O. Box 6351, Columbus, GA 31907.” Among other defenses raised by appellee was that the advertisement did not name or refer directly to appellant so as to constitute defamation of it. We agree.

Decided March 10, 1989

Rehearing denied March 23, 1989

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., for appellee.

“To sustain an action for libel, ‘ “(t)he (allegedly) defamatory words must refer to some ascertained or ascertainable person, and that person must be plaintiff. If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo can not make the person certain which was uncertain before.” ’ ” Fiske v. Stockton, 171 Ga. App. 601 (1) (320 SE2d 590)’ (1984). Here, as in Fiske, “the words used really contain no reflection on any particular individual,” or in this case, any particular company. Applying the same analysis used in Fiske, the only reasonable interpretation of the advertisement is that some company which sells M-14’s or FALs or receivers for those weapons has been giving its customers a “run-around.” There is nothing to suggest that appellant is that company. The evidence of record establishes that the designations “M-14” and “FAL” are not trademarks or tradenames registered to appellant and that such weapons are sold by others. Compare Holmes v. Clisby, 118 Ga. 820 (1) (45 SE 684) (1903), where the plaintiff was the only source of the product involved other than the defendant, and was thus of necessity the person to whom the defendant referred. The testimony of appellant’s president that others told him that they knew the advertisement referred to appellant, even if it were not hearsay, would not create a jury issue as to whether the publication referred to appellant. Fiske, supra. We hold, as we did in Fiske, that the publication, as a matter of law, was not defamatory of appellant. It follows that the trial court did not err in granting appellee’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.