text:
    A89A1257.
    STILTJES v. RIDCO EXTERMINATING COMPANY, INC.
    (386 SE2d 696)
   Sognier, Judge.

Pamela Stiltjes brought an action against Ridco Exterminating Company and others seeking damages for the wrongful death of her husband. All defendants other than Ridco were eliminated from the action before trial. The action against Ridco was tried by a jury, resulting in a verdict for Ridco, and Stiltjes appeals.

Construing it to support the verdict, the evidence adduced at trial showed that appellant’s husband, Michael Stiltjes, an asthmatic for most of his life, died at age 31 as a result of respiratory failure. His death occurred several hours after appellee’s agent, Billy Jones, had, at appellant’s request, returned for the third time in three weeks to treat the Stiltjes’ home for roaches.

Appellant enumerates four contentions of error by the trial court in its charge to the jury. We find no error and affirm.

1. Appellant contends the trial court erred by charging the jury on the legal principle of accident because the only evidence adduced showed that her husband died as a result of either his own negligence or that of appellee, and “[a] charge on legal accident can be given only where there is no evidence of negligence on the part of either party. [Cits.]” Seaboard C. L. R. Co. v. Delahunt, 179 Ga. App. 647, 652 (347 SE2d 627) (1986). However, the authority given for that proposition in Delahunt, supra, Cohran v. Douglasville &c. Prods., 153 Ga. App. 8 (264 SE2d 507) (1980), reveals that the proper standard , for giving a charge on legal accident is whether the jury properly could find that the decedent’s death was not caused by either party’s negligence. “ ‘The principle of law relating to the theory of accident I can only apply when under some theory of the case the injury is thej result of the negligence of neither of the parties, but is a mere casualty due to the negligence of no one. (Cit.)’ [Cit.]” Id. at 9. There wasl testimony in the case sub judice that asthma sufferers may be sensi-| tive to a number of irritants and allergens, and that the fatal asthma attack suffered by appellant’s decedent could have been precipitated| by some factor involving the negligence of no one, such as an allergic reaction to roaches or irritation from any one of several odors unre-j lated to the pest control chemicals applied by Ridco. Accordingly, the trial court did not err by instructing the jury on accident. See generj ally Southern R. Co. v. Ga. Kraft Co., 188 Ga. App. 623, 625 (7) (373 SE2d 774) (1988).

2. Appellant maintains the trial court erred by failing to giv| three of her requested charges.

(a) We do not agree with appellant that the trial court erred bj failing to give her requested charge on the law of the case. In an eaif lier appeal, Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438 (343 SE2d 715) (1986), this court held that evidence in the record showed that “the dangers of skin contact with and inhalation of pyre-thrins to persons such as [appellant’s] decedent are known,” and that appellee, as a professional pest control operator, was charged with knowledge of those dangers. Id. at 441 (2). Appellant sought to incorporate that ruling into her requested charge. However, although OCGA § 9-11-60 (h) provides, in pertinent part, that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be,” appellant’s requested charge was not applicable here for two reasons.

First, “[t]he ‘law of the case’ has been defined as a controlling legal rule established by a previous decision between the same parties in the same case. [Cit.]” (Emphasis supplied.) Bradley v. Tattnall Bank, 170 Ga. App. 821, 822 (1) (318 SE2d 657) (1984). Appellee was not a party to the prior appeal, which involved the alleged liability of the formulator and distributor of the pesticides. Second, “if subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.” Modern Roofing &c. Works v. Owen, 174 Ga. App. 875, 876 (332 SE2d 14) (1985). At the time Stiltjes, supra, was decided the evidence of record apparently indicated to this court that pyrethrins were dangerous to persons suffering from asthma, and appellant was contending it was the inhalation of pyrethrins that caused the fatal asthma attack. At trial, however, it was generally conceded that pyrethrins were safe, appellant’s own expert opined that “the whole argument of pyrethrins can be thrown out,” and autopsy findings indicated no pyrethrins in the blood of appellant’s decedent. Instead, appellant’s theory was that the odor of the pesticides, an irritant to which asthmatics are unusually sensitive, triggered the attack. Thus, the evidentiary posture of the case had changed by the time of trial, rendering the law of the case as expressed in the previous appeal inapplicable. Modern Roofing, supra at 876. Accordingly, the trial court did not err by refusing to give appellant’s requested charge on this issue.

(b) Although the trial court charged the jury regarding the defenses of comparative negligence and avoidance, appellant contends the trial court erred by refusing to charge the jury concerning the shifting burden of proof on those defenses. “ ‘(I)t is proper in a negligence action, where the plaintiff has made out a prima facie case, for the court to charge the jury that the burden is on the defendant to establish by a preponderance of the evidence that the plaintiff’s injuries were caused by his own negligence or contributory negligence if the defendant relies on such defense. . . .’ [Cit.]” Meacham v. Bar ber, 183 Ga. App. 533, 535-536 (2) (359 SE2d 424) (1987). Thus, Meacham requires that if the plaintiff has made out a prima facie case, the jury should be instructed that the burden then shifts to the defendant to prove any asserted defenses regarding the plaintiff’s own lack of due care. Although it is the better practice to give a charge on this shifting burden of proof whenever contributory negligence or avoidance is asserted as a defense, Meacham, supra, does not require that such a charge be given if the plaintiff does not present a prima facie case. We turn, therefore, to a review of the evidence in the light most favorable to the jury’s verdict to determine whether, in her case in chief, appellant made out a prima facie case.

Appellant adduced evidence from her experts that the odor of the chemicals applied could have triggered the attack. Although appellant proffered no evidence indicating negligent application, if appellee knew or should have known that the odor of the chemicals it was applying was harmful to persons such as appellant’s decedent who suffer from asthma, but failed to warn him or take other precautions, breach of a duty would be shown. Appellant’s expert testified he had found in the medical literature a study identifying pesticide odor as one of the main irritants triggering asthmatic attacks. However, that study was published in 1986, and was the only one the expert could find. The pesticide application which is the subject of this suit occurred in 1983. Thus, even if appellee knew or should have known that the decedent was asthmatic, no evidence was shown that appellee had actual or constructive knowledge, at the time it applied the pesticides, that the odor was particularly dangerous to the decedent. Therefore, no breach of duty was shown. Because breach of duty is an essential j element in a negligence case, we hold that appellant failed to make out a prima facie case, and therefore failure to give the requested charge was not reversible error. See McCrackin v. McKinney, 52 Ga. App. 519, 521 (183 SE 831) (1936).

(c) Appellant enumerates as error the trial court’s refusal to givel her requested charge on negligence per se. The trial court did instruct! the jury with regard to OCGA § 43-45-9, concerning certification and! licensing of pest control operators. The remainder of the requested! charge was not adjusted to the facts of the case as tried in that it| referred to the danger of pyrethrins to the decedent and appellee’s knowledge of that danger. See Division 2 (a), supra. It is not error fori a trial court to refuse a charge which is not adjusted to the evidence] See Andrews v. Major, 180 Ga. App. 393, 396 (5) (349 SE2d 2251 (1986). Moreover, the charge was clearly argumentative because it as] sumed that appellee had knowledge that the chemicals it had appliec were dangerous, and a trial court properly may refuse to give a re| quested charge which is argumentative. Turner v. Malone, 176 Ga App. 132, 133 (1) (335 SE2d 404) (1985). Accordingly, the trial courj did not err by refusing to give this requested charge. See id.

Decided September 8, 1989.

Lefkoff, Duncan, Grimes & Dermer, John R. Grimes, Kimberly A. Richardson, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Eve A. Appelbaum, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1346.
    HUNSINGER v. LOCKHEED CORPORATION.
    (386 SE2d 537)
   Birdsong, Judge.

This is an appeal of the trial court’s order granting appellee/de-fendant’s motion for summary judgment and denying appellant/plaintiff’s motion therefor.

Appellant (hereinafter Hunsinger) licensed real estate brokers, procured the Expanded Metal Corporation (hereinafter Expanded Metal) as a tenant for appellee (hereinafter Lockheed). On August 10, 1976, Lockheed and Expanded Metal entered a lease (hereinafter lease) for a term of ten years of 67,560 square feet of space in Building L-45. The lease vested Expanded Metal with the right of extending the first ten-year term of the lease for an additional five-year period. The lease also acknowledged that Hunsinger “shall be paid a commission as compensation for procuring this [l]ease” in accordance with the terms of a “Separate Commission Agreement” (hereinafter commission agreement). The term of this lease became effective October 1, 1976.

On the same date, Hunsinger and Lockheed entered into the separate commission agreement that was drafted by Hunsinger. This agreement recognized Hunsinger as having procured Expanded Metal as a tenant for Lockheed, and provided that a certain commission would be paid. Under the terms of the commission agreement, Hunsinger would be paid an amount equal to l/12th of the annual rental in the fourth year of the lease, and in addition, five percent of all rentals paid by Expanded Metal commencing with the second month of the lease.

The commission agreement also pertinently provided, in paragraphs 2 and 5 respectively, that: “2. If the term of this [l]ease is extended, or if new lease is entered into between Landlord and Tenant covering leased premises, or any part thereof, Landlord, in consideration of Agent’s having procured Tenant hereunder, agrees to pay Agent five percent (5%) of all rentals paid to Landlord by Tenant, under such extension or amendment. The leased premises shall be the entire L-45 Building”; and, “5. Voluntary cancellation of this [l]ease shall not nullify Agent’s right to collect the commission due for the remaining term of this [l]ease.” The commission agreement expressly defined the term “lease” as pertaining to the lease dated August 10, 1976, entered into between Lockheed and Expanded Metal.

On August 1, 1978, Lockheed and Expanded Metal executed Amendment No. 1 to the lease, effective October 1, 1978, to provide for the rental of an additional 12,463 square feet of space in Building L-45 at an increased rental rate. This amendment also expressly provided that the term of the original lease was not extended thereby. This agreement was accomplished with some participation by Hunsinger. On June 1, 1980, Lockheed and Expanded Metal executed another lease agreement (hereinafter second lease), which provided for the lease of the entire L-45 Building for a 25-year term. It is contested whether Hunsinger participated in this particular lease. This lease contained a clause which terminated and superseded all prior lease agreements pertaining to the premises.

In conjunction with the execution of the second lease document, Hunsinger attempted to negotiate the execution of a new commission agreement with Lockheed. Lockheed declined to do so apparently on the basis that a new commission agreement was unnecessary in view of the scope of paragraph 2 of the commission agreement.

In June 1984, Lockheed and Expanded Metal entered into an agreement to voluntarily cancel the second lease and for Expanded Metal to vacate Building L-45 by July 31, 1985. Hunsinger was not a participant in the forging of this agreement. Subsequent to the cancellation of the second lease, Lockheed continued to pay Hunsinger certain commission payments. On July 18, 1986, Lockheed tendered a check for $8,968.83 in full satisfaction of its obligations under the commission agreement, but Hunsinger rejected the tender asserting entitlement to its commission throughout the term of the 25-year i lease. Thereafter, appellant Hunsinger brought suit against Lockheed j for breach of the commission agreement. Held:

1. Appellant asserts that the trial court erred in ruling that as a I matter of law the commission agreement was clear and unambiguous,! and he asserts that cancellation of the lease and termination of the I commission agreement would not void Hunsinger’s entitlement to his| commission payments.

The trial court correctly opined that the construction of a con-| tract is a question of law for the court, OCGA § 13-2-1. After examin-l ing the commission agreement on its four corners, we agree with the trial court’s conclusion that the agreement is both clear and unambig-j uous.

OCGA § 13-2-3 provides that “[t]he cardinal rule of [contract] construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” Where the terms of a written contract are clear and unambiguous, the court will look only to the contract to find the intention of the parties. Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659); Griffin v. Adams, 175 Ga. App. 715, 716 (334 SE2d 42). No construction of a contract is required or permitted when the language used by the parties is plain, unambiguous and capable of only one reasonable interpretation. In such a case, the language used is given its literal meaning and common ordinary words are given their usual significance. Griffin, supra at 716; accord Kusuma v. Metametrix, 191 Ga. App. 255 (2) (381 SE2d 322).

The trial court construed the pertinent provisions of the commission agreement as follows. “Paragraph 5 of the Commission Agreement provides that ‘[voluntary cancellation of this [l]ease shall not nullify Agent’s right to collect the commission due for the remaining term of this [IJease [emphasis added].’ The term ‘this [l]ease’ is defined in the Commission Agreement as the [l]ease entered into on August 10, 1976 by Lockheed and Expanded Metal. Paragraph 2 of the Commission Agreement provides that ‘[i]f the term of this [IJease is extended, or if new lease is entered into between Landlord and Tenant . . . Landlord . . . agrees to pay Agent five percent (5%) of all rentals paid to Landlord by Tenant, under such extension or amendment [emphasis added].’ This Court finds that Paragraph 5 of the Commission Agreement applies only to a voluntary cancellation of the 1976 [l]ease and not to the cancellation of any subsequent leases entered into by Lockheed and Expanded Metal. If the parties had intended for the provisions of Paragraph 5 to be applied to any subsequent leases entered into between Lockheed and Expanded Metal, language to that effect could have been incorporated into Paragraph 5 as it was in Paragraph 2. Therefore, since Paragraph 5 clearly states on its face that Plaintiff was entitled to commissions only for the ten year period provided for in the August 10, 1976 [l]ease, it is the Order of this Court that Defendant’s motion for summary judgment be and is hereby granted.”

Examination of the commission agreement in toto reveals that in arriving at the above contract construction, the trial court correctly applied the rule in Griffin and gave the language used in the commission agreement its literal meaning, and the common and ordinary words therein contained their usual significance. We find no error in the trial court’s construction of this agreement.

Farris v. Pazol, 166 Ga. App. 760 (305 SE2d 472); Hunter v. Benamy Realty Co., 115 Ga. App. 829 (156 SE2d 160); and Miller v. Adams-Cates Co., 64 Ga. App. 858 (14 SE2d 220) are distinguishable from this case.

Moreover, assuming arguendo that the commission agreement had contained an ambiguity, we note that it was drafted by appellants. Even where a contract is ambiguous, a jury question is presented only “ ‘ “ ‘when the application of the rules of construction fails to resolve the ambiguity.’ ” ’ ” Norton v. Hutton, 172 Ga. App. 836 (324 SE2d 744). It is an established principle of contract construction “ ‘(a) contract will not be construed so as to authorize one of the parties to take advantage of his own wrong.’ ” Norton, supra at 837; National Enterprises v. Davis, 140 Ga. App. 488, 489 (231 SE2d 490). The rule of contract construction compatible with this principle is that an ambiguous contract will be construed most strongly against its maker. OCGA § 13-2-2 (5); Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 593 (337 SE2d 29); Norton, supra at 837; National Enterprises, supra at 489. Were we to have occasion to apply this principle and rule, we would resolve the ambiguity in a manner identical in contract construction to that already given the commission agreement by the trial court.

Appellant’s above enumerations of error are without merit.

2. Appellant asserts that the trial court erred in granting summary judgment for the appellee as the record shows that appellant was never paid in full even under appellee’s interpretation of the commission agreement.

Paragraph 1 of the commission agreement pertinently provides that “Landlord agrees to pay Agent ... an amount equal to one twelfth (1/12) the annual rental in the fourth year of the [l]ease ($87,828.00 [divided by] 12) . . . and in addition thereto, five percent (5%) of all rentals thereafter paid by Tenant commencing with the second month of the [l]ease.” Paragraph 2 of the commission agreement provides that “If the term of this [l]ease is extended, or if new lease is entered into . . . Landlord . . . agrees to pay Agent five percent (5%) of all rentals paid to Landlord by Tenant, under such extension or amendment.” (Emphasis supplied.) Paragraph 5 of the commission agreement provides that “Voluntary cancellation of this Lease shall not nullify Agent’s right to collect the commission due for the remaining term of this Lease.” (Emphasis supplied.) These provisions in pari materia must be construed together. We find that these provisions, in part, clearly agree to the payment of a commission as provided in paragraph 1, above. However, if the original lease is extended or a new lease entered, then the landlord is to pay, for the period as prescribed above, five percent of the rentals paid to him by the tenant under this extension or amendment, whether it arises from a modification of the original lease or from the terms of a new lease. | Moreover, these provisions also clearly provided that once the original lease is extended or a new lease entered, the five percent commission is to be based on the modification or new rental rates, if any, without regard to whether it is more or less than the rental rate under the original lease.

At the outset, we note that the parties have made certain assertions of fact concerning the payments made and due that are not supported by evidence of record. Such unsupported assertions cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

According to the clear terms of the commission agreement, we find that the following commission payments were due and owing appellant: (a) the sum of $7,319 (l/12th the annual rate of $87,828), and even if the original lease was cancelled before such payment was made, the amount would remain collectible under Paragraph 5 of the commission agreement; (b) the amount of $287.88 per month (five percent of the first year monthly rental rate formula in the original lease) from October 1, 1976 (the date the term of the lease became effective) to September 30, 1977; (c) the amount of $404.99 per month (five percent of the second year monthly rental rate formula in the original lease) from October 1, 1977 to September 30, 1978; (d) the amount of $472.49 per month (five percent of the third year annual rental rate in amendment to the original lease divided by 12) from October 1, 1978 to September 30, 1979; (e) the amount of $433.46 per month (five percent of the fourth year annual rental rate in amendment to the original lease divided by 12) from October 1,1979 to May 31, 1980; (f) the amount of $656.25 per month (five percent of the first five year monthly rental rate formula in the second lease) from June 1, 1980 (the date the second lease became effective) until May 31, 1985; and (g) the amount of $765.63 (five percent of the second five year monthly rental rate formula in the second lease) from June 1, 1985 to July 31, 1985 (the date the second lease was terminated). It is clear from the plain language of paragraph 2 of the commission agreement that once the second lease was terminated and the tenant ceased to pay rent under the terms thereof, landlord was no longer obligated to pay appellant any further commissions based on the rental rates in the second lease.

However, in addition to the above payments, appellant is entitled to receive the amount of $365.95 per month (five percent of the fourth through tenth year monthly rental rate formula in the original lease) from August 1, 1985 to the date the original lease would have expired had it not been terminated by the express provisions of paragraph 31 of the second lease. The original lease would have expired, pursuant to paragraph 2 thereof, ten years from when the lease term commenced, that is ten years from October 1, 1976. Appellant’s entitlement to this amount is based on the fact that although paragraph 1 of the commission agreement also refers to a five percent commission limited to certain rentals paid by the tenant, this provision clearly is overridden by the terms of paragraph 5 of the commission agreement. Paragraph 5, as stated in Division 1, pertains to the original lease, including the rental rates thereunder. Paragraph 5, when read in conjunction with paragraphs 1 and 2 unequivocally grants the agent, in the event the original lease is voluntarily cancelled, the right to collect a commission at least equal to five percent of all rentals yet due the appellee landlord under the otherwise remaining terms of the original lease. This reading of the clear language of the contract happens to be compatible with the statutory rule that “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4).

On March 1, 1983, the tenant Expanded Metal sublet a portion of the premises back to landlord Lockheed in consideration of a substantial reduction in the amount of rental charged for the remainder of the premises. Appellee asserts that this reduction in rentals resulted likewise in a substantial reduction of the amount of commission owed appellant, and thus it has in fact overpaid appellant. Paragraph 2 of the commission agreement sets appellant’s commission for any new leases entered between landlord and tenant covering any part of the leased premises, at five percent of all rentals paid to landlord by tenant. It is clear from the unambiguous and common language of this paragraph that the parties did not intend that a “sublease” from tenant back to the landlord would be included in the term “new lease.” Thus, we find that paragraph 2 of the original lease does not apply to a sublease. Compare Health Svc., supra, Griffin, supra, and OCGA § 13-2-3. Moreover, we find that the tenant Expanded Metal continued to pay landlord Lockheed until termination of the second lease, at least the monthly rental amounts required by the applicable contract rental formulae, albeit that payments were thereafter made partially in cash and partially in the economic value vesting in Lockheed by allowing it to regain control over a portion of its premises. Appellee, having elected in essence to accept a portion of i its rental from Expanded Metal in the form of a sublease, cannot now use this election to disenfranchise appellant of entitlement to a full commission.

Accordingly, we find that the trial court did err in granting sum-1 mary judgment for appellee, because the ultimate cancellation of thel lease and termination of the commission agreement would not void! Hunsinger’s vested entitlement to his commission payment; and, be-l cause from the current state of the record, a genuine issue of facl remains regarding whether Hunsinger has been paid all the commisl sion fees, as above determined to be due and owing under the terms of the commission agreement. Thus, we will reverse that part of the trial court’s order granting summary judgment for appellee.

Decided September 8, 1989.

Schwall, Ruff & Goodman, Emory A. Schwall, Robert S. Wayne, for appellant.

Downey, Cleveland & Parker, Lynn A. Downey, Russell B. Davis, for appellee.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1235.
    RYALS et al. v. BILLY POPPELL, INC.
    (386 SE2d 513)
   McMurray, Presiding Judge.

Mr. and Mrs. Ryals brought a wrongful death action against General Motors Corporation (“GM”) and the appellee used car sales business to recover for the death of their son. The complaint alleged that the decedent was killed while driving a used car purchased from ap-pellee which was defective when manufactured by GM; and that the car was covered by an express warranty of merchantability, issued by appellee at the time of purchase, and also subject to implied warranties of merchantability under OCGA § 11-2-314 and the Magnuson-Moss Warranty Act (15 USC § 2301 (3)). GM was released as a party defendant and appellee moved for summary judgment on the ground that as a matter of law a wrongful death claim could not be predicated upon the theories of either express or implied warranty. This appeal is from the grant of summary judgment in favor of appellee. Held:

The Georgia wrongful death statutes (OCGA §§ 51-4-1 through 51-4-5) limit recovery to “all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.” OCGA § 51-4-1 (2). See Lovett v. Emory Univ., 116 Ga. App. 277 (156 SE2d 923) (1967); Higginbotham v. Ford Motor Co., 540 F2d 762 (5th Cir. 1976). While a wrongful death action may now be maintained against a manufacturer in a products liability case to the full extent of the strict liability provisions of OCGA § 51-1-11 pertaining to injury to person or property, the vehicle in question here was not manufactured by appellee used car sales business and thus appellee had no liability under those sections. See Stiltjes v. Ridco Exterminating Co., 256 Ga. 255 (347 SE2d 568) (1986).

Decided July 14, 1989

Rehearing denied September 11, 1989

Richard D. Phillips, 0. Dale Jenkins, for appellants.

Appellants’ claims under theories of breach of express and implied warranties arising from the purchase and sale of the automobile were likewise not maintainable. A wrongful death action may not be predicated on a breach of warranty arising from the sale of goods, except specified articles intended for human consumption or use. Lovett v. Emory Univ., 116 Ga. App. 277, 280 (2), supra; Ford Motor Co. v. Carter, 239 Ga. 657, 659 (238 SE2d 361).

“ ‘It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.’ [Cits.]” Pierce v. Liberty Furn. Co., 141 Ga. App. 175 (2), 176 (233 SE2d 33) (1977). Accord Harison-Gulley Chevrolet v. Carr, 134 Ga. App. 449 (214 SE2d 712) (1975). Appellee submitted affidavits showing that the car was purchased in Florida and driven to Jesup, Georgia, approximately one month before it was sold to the decedent, and had been driven as a demonstrator without requiring any repairs or maintenance until the date of sale with no observed peculiarities or problems. Since there was no evidence that there was anything which would have reasonably tended to call appel-lee’s attention to any alleged defects in the car, it was also clearly entitled to summary judgment on the negligence count.

Finally, we find no actionable claim under the Magnuson-Moss Warranty Act (15 USC § 2301 et seq.). “[C]auses of action for personal injuries arising out of the sale of allegedly defective products generally remain a matter of state law. 15 USC § 2311 (b). The act does not create a federal cause of action for personal injury claims which are otherwise state law claims for breach of warranty. Gorman v. Saf-T-Mate, Inc., 513 F.Supp. 1028 (N.D. Ind. 1981).” Bush v. American Motors Sales Corp., 575 FSupp. 1581, 1582 (D. Colo. 1984). Consequently, for these reasons, the trial court correctly granted summary judgment in appellee’s favor.

Judgment affirmed.

Carley, C. J.', and Beasley, J., concur.

King & Spalding, Philip E. Holladay, Dickey, Whelchel, Brown & Readdick, Richard A. Brown, Jr., John E. Bumgartner, for appel-lee.


author: Sognier, Judge.

text:
    A89A1483.
    BETHA v. THE STATE.
    (386 SE2d 515)
   Sognier, Judge.

Larry Betha was convicted by a jury of trafficking in cocaine, and he appeals.

1. Appellant first enumerates the general grounds. Construing the evidence to support the verdict, on November 15, 1988, pursuant to a search warrant officers from the Sandersville Police Department entered the home appellant shared with his girl friend. Although neither appellant nor his girl friend was present when the officers entered the residence to begin the search, appellant arrived during the search. Thirty point eight grams of cocaine were found above the ceiling in the closet of the only bedroom of the house, and .1 gram of cocaine was found wrapped in a piece of paper in appellant’s pocket. Over $1,000 in cash was found in a bank bag in the bedroom closet, and $841 in cash was seized from appellant’s pocket. Appellant testified that he had occupied the rented house for four years, and that his girl friend had shared the house with him for the last three of those. Appellant claimed a possessory interest in the premises, and also claimed both the money found in his pocket and that found in the closet, but disclaimed any knowledge of the cocaine found above the closet ceiling. He proffered no evidence that any other person had either regular or recent access to the premises. We find this evidence sufficient to enable a rational trier of fact to find appellant guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by denying his motion to suppress because the affidavit in support of the search warrant did not contain sufficient information to enable the issuing judge to determine whether the events constituting probable cause were current rather than stale. The affiant, Patrolman Steve Hawthorne, averred that he had been contacted within the past three days by a confidential informant who said that “he was at [appellant’s] house with friends and the friends bought crack from [appellant].” Hawthorne made further statements indicating the reliability of the confidential informant, and added that “[p]ersonal observation by affiant revealed that known drug users were frequenting [appellant’s] residence at all hours of the night” and that he had checked city utility records and found that the utilities were registered in appellant’s name. Appellant argues that although the affidavit does indicate that the information from the confidential informant had been given to Hawthorne within the past three days, nothing in the affidavit indicates when the informant was at appellant’s home with friends who purchased the drugs, nor does anything pinpoint the time of affiant’s personal observation that known drug users were visiting the residence during unusual hours. See Fowler v. State, 121 Ga. App. 22 (172 SE2d 447) (1970). However, in State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984), the Supreme Court held that the “totality of the circumstances” analysis of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983) should be adopted in resolving questions regarding the timeliness or staleness of information in an affidavit submitted in support of a request for a search warrant. While reiterating “the importance of the submission, by affidavit, to the issuing magistrate of the maximum quantum of reliable information within the knowledge of the affiant, and the demonstration of the reliability thereof — including indicia of timeliness,” Luck, supra at 348, the Supreme Court indicated that “the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]” Id. at 347. Thus, we find that under the circumstances set forth in the affidavit in the case at bar there was sufficient evidence to create a reasonable belief that an ongoing scheme existed, and therefore, we find no merit in appellant’s argument regarding staleness.

Further “[i]n United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), the United States Supreme Court held that evidence which is seized in good-faith reliance upon a search warrant issued by a neutral and detached magistrate will generally not be subject to suppression on Fourth Amendment grounds, regardless of whether the allegations upon which the magistrate based the issuance of the warrant were sufficient to establish the probable cause for the search.” Rodriguez v. State, 191 Ga. App. 241, 242 (381 SE2d 529) (1989). In Leon, the court concluded that “[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’ [Cit.]” Id. at 926.

Consequently, because in the case at bar neither the neutrality and integrity of the issuing judge nor the honesty of the officers has been challenged, and the search and seizure were carried out in good faith reliance upon the validity of the warrant, the trial court did not err by denying the motion to suppress. Rodriguez, supra at 243.

Decided September 5, 1989

Rehearing denied September 11, 1989

Reginald L. Bellury, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

3. In his final enumeration of error, appellant challenges the propriety of the trial court’s charge on joint possession. The charge in issue provided that “the law . . . recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. The jury would be authorized to convict only if they should find beyond a reasonable doubt that [appellant] knowingly had actual or constructive possession, either alone or jointly with another.” Appellant contends that the charge, although correct as an abstract principle of law, was inappropriate here and confused and misled the jury, undermining the court’s charge on equal access. We find nothing confusing or misleading about the charge. When there is any evidence on a particular point, it is not error to charge the law in relation to that issue. Spivey v. State, 186 Ga. App. 236 (1) (366 SE2d 838) (1988). Here, evidence adduced at trial showed appellant and his girl friend were the only persons living in the house when the search took place, and appellant admitted ownership of the money found in the bedroom closet. In the absence of evidence to the contrary, a rational trier of fact could reasonably have inferred that appellant was in constructive possession, either alone or jointly with his girl friend, of all the items seized from the bedroom closet. See Luke v. State, 178 Ga. App. 614, 615-616 (1) (344 SE2d 452) (1986); see also OCGA § 16-13-31 (a) (amended effective March 28, 1988; Ga. L. 1988, p. 420, § 2).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A1071.
    WESTFELT v. THE STATE.
    (386 SE2d 542)
   Pope, Judge.

Defendant Tony Ray Westfelt was convicted of the offense of possession of phenylacetone in violation of the Georgia Controlled Substances Act. The chemical was found during a search of the automobile in which defendant was a passenger. Defendant argues the trial court erred in denying his motion to suppress the evidence seized in the search of the automobile.

Evidence presented at the suppression hearing showed that the defendant admitted to the officer conducting the search that he owned the sealed cardboard shipping boxes found in the automobile. At the conclusion of the suppression hearing the trial court ruled the evidence was admissible because both the driver of the automobile and the defendant had given their consent to the search of the boxes in which the alleged substance was found. In upholding the trial court’s ruling we need not address the issue of consent for we find the authorities had probable cause to search the vehicle and all containers within it.

The evidence shows that an agent of the Tennessee Bureau of Investigation contacted the Dade County Sheriff’s Department and informed the Georgia authorities that the vehicle in question was suspected of transporting controlled substances. The Tennessee agent had followed the vehicle on the highway headed south into Georgia and requested assistance in stopping the vehicle. “Where a law enforcement officer has probable cause to believe that a vehicle (as opposed to a particular container within the vehicle), while in transit, contains contraband; i.e., where the objective facts known to the officer would justify issuance of a search warrant authorizing that a vehicle be searched, the ‘automobile exception,’ Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925), to the warrant requirement of the Fourth Amendment applies, and a warrantless search of the entire vehicle is not unconstitutional, including all containers and packages that may contain such contraband. United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982).” Love v. State, 254 Ga. 697, 698-699 (344 SE2d 173) (1985). “[T]he searching officer need not personally be aware of all the facts which would support a probable cause determination so long as it can be established by evidence that the searching officer’s actions were the end result of a chain of information-sharing, one link of which is an officer in possession of the ‘information requisite to support an independent judicial assessment of probable cause.’ Whiteley v. Warden of Wyoming Penitentiary, 401 U. S. 560, 568 (91 SC 1031, 28 LE2d 306) [(1971)].” Parker v. State, 161 Ga. App. 37, 39-40 (288 SE2d 852) (1982). The evidence shows that the Tennessee law enforcement officer possessed ample information to establish probable cause to believe that the vehicle contained contraband.

The fact that the automobile was impounded before the controlled substance was found does not invalidate the warrantless search. Justification to conduct a warrantless search of an automobile based on probable cause does not vanish once the car is impounded. Florida v. Meyers, 466 U. S. 380 (104 SC 1852, 80 LE2d 381) (1984).

Decided September 11, 1989.

John R. Emmett, for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1143.
    KEYE v. THE STATE.
    (386 SE2d 543)
   Pope, Judge.

Defendant Leroy Keye was convicted of two counts of armed robbery and two counts of possession of a firearm in the commission of a felony. Evidence was presented to show that defendant entered the house of the first victim at about 3:30 a.m. April 2, 1988, under the false pretense of being a police officer. He took several items belonging to the victim including a pistol which he used to threaten and beat the victim. Sometime before 4:00 a.m. the same morning he entered the apartment of an elderly tenant in the same apartment building in which he lived, this time under the false pretense of being a maintenance worker sent to make repairs. Once inside the apartment he pulled a pistol on the elderly victim and took her watch. Shortly after 4:00 a.m. several police officers visited defendant’s apartment and the defendant voluntarily accompanied them to the apartment of the second victim who identified him as her assailant. The items stolen from both victims were found in defendant’s apartment.

1. Defendant first argues the trial court erred in denying his motion to sever the trial of the two separate acts. “Offenses may be joined which are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. ‘If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary “to achieve a fair determination of the defendant’s guilt or innocence of each offense.” (Cits.)’ Isbell v. State, 179 Ga. App. 363, 366 (346 SE2d 867) (1986). In the instant case, the trial court found a common scheme . . . and a series of connected acts. Accordingly, it did not err in denying the motion to sever.” Floyd v. State, 186 Ga. App. 777, 777-778 (368 SE2d 541) (1988). See also Phillips v. State, 160 Ga. App. 345 (1) (287 SE2d 69) (1981).

2. Defendant next argues his convictions for possession of a firearm in the commission of a felony must merge with the corresponding convictions for armed robbery. “[I]t does not violate our double jeopardy statutes to convict a person of both possession of a firearm during the commission of a felony and the accompanying felony in a single prosecution. ... It follows that [armed robbery] is not a lesser included offense under the crime of possession of a firearm during commission of a felony and that this enumeration of error is without merit.” Wilson v. Zant, 249 Ga. 373, 380 (290 SE2d 442), cert. denied, 459 U. S. 1092 (103 SC 580, 74 LE2d 940) (1982).

Decided September 11, 1989.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1181.
    ARGO v. THE STATE.
    (386 SE2d 545)
   Pope, Judge.

On the morning of February 16, 1988, the victim, who lived alone, waked up at 4:40 a.m. and saw a man’s shadow outside her bedroom door. The intruder sat next to her on the bed and told her he had seen her earlier when he worked with a tree cutting service in her yard. He said: “I wanted you and here I am. . . . [Y]ou know what I want.” He leaned over to kiss the victim and ran a knife over her nightclothes down her chest. By remaining remarkably calm and engaging the man in conversation the victim initially was able to talk the man out of sexually assaulting her. However, he eventually became angry at the victim and slashed at her with a knife. She was able to escape the house after spraying the intruder with mace. At trial the victim unequivocally identified the defendant as her assailant. Defendant was convicted of aggravated assault, burglary and possession of a knife during the commission of a felony. We affirm.

1. Defendant asserted an alibi defense and, in addition to his own testimony, presented the testimony of four relatives as witnesses that he had been at his home many miles from the victim’s home during the early morning hours in question. The credibility of witnesses is a question for the jury. Desaussure v. State, 258 Ga. 790 (374 SE2d 726) (1989). The victim’s testimony and circumstantial evidence presented by the State support the verdict. We conclude the evidence was sufficient to convince any rational trier of fact of every essential element of the crimes of which defendant was convicted under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 11, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

2. The conviction for aggravated assault with intent to rape does not merge with the burglary conviction. See Palmer v. State, 174 Ga. App. 720 (331 SE2d 77) (1985); Taylor v. State, 157 Ga. App. 212 (4) (276 SE2d 691) (1981).

3. Defendant argues the trial court erred in denying his motion for new trial on the ground he was denied effective assistance of counsel. We have examined the trial transcript and the transcript of the evidence presented at the hearing on defendant’s motion for new trial and conclude that this enumeration of error has no merit. The testimony presented at the motion hearing shows defendant’s trial counsel exercised sound judgment in not calling all thirteen witnesses identified by defendant as alibi witnesses. He also exercised reasoned and sound judgment, after consulting with his client, in declining to move for a mistrial during jury deliberations.

No ground for granting a new trial is shown by the fact that trial counsel did not obtain a copy of the police report of the victim’s statements to the investigating officer for purposes of cross-examining the victim. First, we note that trial counsel was not entitled to a copy of the police report because it did not contain any in-custody statement by defendant, scientific reports or exculpatory evidence. See Wansley v. State, 256 Ga. 624, 626 (352 SE2d 368) (1987). Moreover, no material inconsistency exists between the victim’s trial testimony and the police report of the victim’s statement. Any complaint about trial counsel’s failure to cross-examine the witness concerning her testimony at the preliminary hearing was waived when his counsel on appeal notified the trial judge that he found no material discrepancies between the two testimonies.

Finally, a review' of the instructions given to the jury by the trial judge shows that the instructions were adequate and complete. Therefore, defendant has failed to show he is entitled to a new trial on the ground his trial counsel failed to file written requests to charge or to reserve objections to the charge.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1537.
    SMITHSON v. HARRY NORMAN, INC.
    (386 SE2d 546)
   Sognier, Judge.

Harry Norman, Inc. d/b/a Harry Norman Realtors brought suit for commissions against Susan Smithson a/k/a Susan Cavell. No defensive pleadings pursuant to OCGA § 9-11-12 (a) or OCGA § 9-11-55 (a) were filed within the applicable time periods, but a motion to open default was filed prior to entry of final judgment with an allegation of excusable neglect. See OCGA § 9-11-55 (b). The trial court denied the motion and default judgment was entered. Smithson appeals.

1. Appellee moves to dismiss this appeal on the basis that appellant failed to attack the judgment by one of the methods provided in OCGA § 9-11-60. It is well established that prior to entry of final judgment in a default situation, the proper motion by the defaulting party is a motion to open default pursuant to OCGA § 9-11-55 (b); once final judgment is entered, the provisions of OCGA § 9-11-55 (b) are inapplicable and the case must proceed under OCGA § 9-11-60. See Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583) (1983). Since appellant acted prior to entry of final judgment, her motion to open default under OCGA § 9-11-55 (b) was proper and no motion pursuant to OCGA § 9-11-60 was necessary or appropriate. A default judgment being a final and appealable judgment, see Shannon Co. v. Heneveld, 135 Ga. App. 252 (1) (217 SE2d 424) (1975), rev’d on other grounds, 235 Ga. 635 (221 SE2d 200), and appellant’s appeal being otherwise timely, see generally Hiscock v. Hiscock, 227 Ga. 329, 330 (1) (180 SE2d 730) (1971), appellee’s motion to dismiss is denied.

2. Appellant’s primary argument on appeal, as opposed to her argument before the trial court on motion to open default, centers on her contention that the judgment below was void because the service of process on her was insufficient under OCGA § 9-11-4 (d) (7). However, we need not consider the merits of this argument because the record reveals that in her motion to open default, appellant pled a meritorious defense, stated her failure to file defensive pleadings was due to excusable neglect, averred that all accrued costs had been paid, and declared herself ready to proceed with the trial of the issues, and then thereafter in her answer, she admitted that she could be served at the address in the complaint and did not raise any objection to the service of process. It thus affirmatively appears of record that appellant has waived her defense of lack of personal jurisdiction. OCGA § 9-11-12 (h); see Hornsby v. Hancock, 165 Ga. App. 543 (301 SE2d 900) (1983); compare Daniel v. Leibolt, 178 Ga. App. 186, 190 (342 SE2d 334) (1986).

3. In regard to appellant’s contention that the trial court erred by denying her motion to open default because she presented a case demonstrating excusable neglect, the record contains the sheriff’s entry of service which reflects that appellant was served notoriously at the address set forth in the complaint by leaving a copy of the action and summons with one Mr. McIntosh, whose height, weight, and age (45 years old) were detailed. In her motion to open default and affidavit attached thereto, appellant stated that while she was away from her home for medical reasons, she had arranged for a former employee, Andrew McIntosh, to stay at the home in order to care for the residence. Appellant does not controvert that McIntosh received the complaint and summons at her home on September 1, 1988, as indicated in the entry of service, but asserted he did not tell appellant about it when she returned home September 11, 1988. No explanation was proffered why the adult selected by appellant to handle matters arising during her hospital stay failed to act responsibly in regard to the service of process, either by informing her verbally of the sheriff’s delivery or by leaving the documents delivered by the sheriff in a place where appellant would readily discover them upon her return. Appellant stated she first learned of the suit on or around December 1, 1988, when she found the copy of service on the floor in her guest house.

Decided September 11, 1989.

Hurt, Richardson, Garner, Todd & Cadenhead, James T. White, James D. Comerford, for appellant. McCalla, Raymer, Padrick, Cobb & Nichols, Carol V. Clark, Ter-ese L. Perrotta, for appellee.

“The general rule seems to be that ‘ “Excusable neglect” does not mean gross negligence. It does not mean a wilful disregard of the process of the court, but refers to cases where there is a reasonable excuse for failing to answer.’ [Cits.] It has been defined as ‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’ [Cit.] It ‘implies . . . reasonable ... or excusable neglect as to . . . some fact, or something that has or has not been done, of which the complaining party ought to have knowledge, and which, if he had had such knowledge, might have prevented’ the default. [Cit.]” First Nat. Ins. Co. v. Thain, 107 Ga. App. 100, 103 (129 SE2d 381) (1962). “Excusable neglect can be determined not by any fixed rule, but rather by the circumstances of each individual case. [Cit.] This determination is within the sound discretion of the trial court, and will not be disturbed by the appellate court absent abuse of discretion. [Cit.] We find no abuse of discretion here.” Dever v. Lee, 188 Ga. App. 483, 485 (2) (373 SE2d 224) (1988). See also Gowdey v. REM Assoc., 176 Ga. App. 83, 84-85 (3) (335 SE2d 309) (1985).

Judgment affirmed.

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


author: Birdsong, Judge. Benham, Judge,

text:
    A89A0850.
    GLOVER v. THE STATE.
    (386 SE2d 699)
   Birdsong, Judge.

Ernest Glover appeals his conviction of armed robbery and possession of a firearm during the commission of a felony.

On October 10, 1986, Leland Nettles, the manager of the Comet Oil Station in Savannah, Georgia, was robbed at gunpoint by two men. Moments after the robbery, Richard Spencer and appellant Ernest Glover were arrested. Appellant Glover was indicted for armed robbery, aggravated assault and possession of a firearm during the commission of a crime. During the trial of the case, the trial court directed a verdict of acquittal on the count for aggravated assault. The jury returned a verdict of guilty on the remaining counts.

Savannah Police Officer Leonard Harris testified that in response to a radio call he proceeded to the Comet Oil Station on Waters Avenue in Savannah at about 8:30 p.m., October 10, 1986. Immediately upon arriving at the store, he saw appellant inside the store, along with the other robber (Spencer) and the victim. He testified that he knew appellant Ernest Glover and in fact had known him “[p]ractically all my life.” Harris also knew the second of the two robbers, Richard Spencer; he saw a gun in Spencer’s hand. The robbers and the victim came running out of the business; Officer Harris tackled Spencer as he ran. Another policeman chased Glover. Officer Harris found a gun in Spencer’s pocket and turned it over to the store clerk to guard Spencer. Moments later, he saw the other policeman, Officer Mack, and appellant scuffling on the ground near the store.

The victim, Leland Nettles, testified that at about 9:00 p.m. on October 10, 1986, two black males came into the Comet Oil Station. One ordered a couple of packs of cigarettes. When Nettles opened the cash register, “one male came around behind the counter with a gun and told me not to close the drawer.” The man struck Nettles in the head with a gun and took the money from Nettles’ left front pocket. The man pulled the hammer back on the gun, threatening to shoot Nettles if he did not open the floor safe. The other man (appellant) said “shoot the son of a b. . . and let’s go.” After money was taken, appellant told the gunman, “Let’s go. They’re outside.”

The victim had activated a silent alarm during the robbery; the police were already outside when the two robbers left the store with Nettles running behind them. The two robbers left the store in the same direction but Spencer was caught immediately. Minutes later, appellant Glover was brought back to the scene by the police and Nettles identified him as the other robber. On cross-examination, the victim repeated that it was appellant who urged Spencer to shoot him.

Police Officer Mack testified he was dispatched to the Comet store after the silent alarm went off and arrived shortly after Officer Harris. Mack saw two black men run from the store and head south. One of the men (Spencer) was caught almost immediately by Harris and Officer Mack pursued appellant for a “minute and a half.” Mack testified the man he chased from the store that night was appellant Ernest Glover, whom he already knew by face. When he captured Glover, they tussled, and then engaged in a second chase. When he was caught again, appellant wrestled the policeman, seizing the officer’s wrist and handgun. During the chase, defendant appeared to be carrying a plastic bag which he did not have when apprehended. A day or two after the robbery, Mack found a blue and white plastic bag in “the exact same spot where” he had arrested appellant. Inside the bag were a bottle of wine and $180. Officer Mack testified that during his chase of appellant from the Comet Oil Station, he never lost “sight of [appellant].”

Police Corporal Gardner arrived at Comet Oil moments after the robbery. He obtained a latent fingerprint from a beer can found on the counter of the store, a can which Nettles believed had been handled by one of the suspects. Police Corporal Gene Roy, a fingerprint comparison expert, testified that the latent print found on the beer can was the fingerprint of appellant Ernest Glover.

Police Investigator Howard Wilson testified he went to Comet Oil immediately after the report of the robbery. He took $167.56 from Spencer’s left front shirt pocket. Wilson testified that shortly after his arrest Glover told him and Detective Burns that he had “just [been] walking by the gas station and he saw someone run out of the station.” (Burns corroborated Officer Wilson’s testimony.) Wilson identified the handgun that Nettles had held on Spencer after the robbery, and an envelope containing the money he seized from Spencer at the scene.

The State and the defense stipulated that defendant Glover and his co-defendant Richard Spencer were arrested and pled guilty to a bank robbery in U. S. District Court in Savannah in 1975.

In defense, Glover stated that he just happened to be walking near the incident location when Officer Mack approached. He testified that he ran from the officer and that he had to try to keep the officer from “beating me to death.” He was brought back to the store where he saw the victim Nettles, whom he had seen many times before “because I have been in that store quite a few times.” He denied having been in the store during the robbery and denied making the statement attributed to him by Detectives Wilson and Burns. He referred to the prosecution against him as a “frameup situation.” He suggested Burns and Wilson were lying because they, like the prosecutor, just wished to obtain a conviction. He conceded to the prosecutor that he was calling all the State’s witnesses liars. Held:

1. Appellant contends he was entitled to a directed verdict as to Count 3, possession of a firearm during the commission of a felony under OCGA § 16-11-106, on the ground that this offense is included in Count 1, armed robbery (OCGA § 16-8-41), and particularly since appellant was not shown to have a weapon during the commission of the robbery.

Appellant contends he is familiar with our controlling ruling in Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243), but urges us to take another look at it, as “[s]omewhere in there is ground for [¡judicial correction.” However, appellant has not suggested what such ground for correction might be. “Any person concerned in the commission of a crime is a party to it and may be convicted as a principal. OCGA § 16-2-20 (a); Tolliver v. State, 167 Ga. App. 696 (1) (307 SE2d 269). . . . An aider or abettor is such a person, as is one who encourages another to commit the crime. OCGA § 16-2-20 (b) (3) and (4). The evidence was sufficient to establish that appellant was concerned in . . . both of these ways in the commission of the crime of his co-defendant’s actual possession of [a] firearm during commission of the armed robbery. Thus the jury was authorized to find appellant guilty as a principal.” Wilcox, supra at pp. 596-597.

The two counts do not merge. It is clear the legislature specifically intended to provide separate and additional penalties for both the felony act, whatever that might be, and the possession of a firearm during the commission of it, as separate offenses. Miller v. State, 250 Ga. 436 (298 SE2d 509); Wiley v. State, 250 Ga. 343 (296 SE2d 714); Wilson v. Zant, 249 Ga. 373 (290 SE2d 442), cert. den. 459 U. S. 1092 (103 SC 580, 74 LE2d 940); McKissic v. State, 178 Ga. App. 23 (341 SE2d 903); McGee v. State, 173 Ga. App. 604 (327 SE2d 566). Considering the seriousness of both these offenses, it would demean legislative intent and encourage such criminal acts by diluting the penalty for them, if the heinous offense of possession of a firearm ini the commission of a felony were forgiven, or merged, merely because the particular felony by technical definition involved a firearm.

2. Appellant contends the trial court erred in allowing evidence of a 1966 conviction for bank robbery, because there was no similarity in transaction in that appellant’s identity was not proved in the 19661 armed robbery, and because the evidence placed his character in evi-l dence. I

The record shows clearly that while being questioned about a li-I quor violation in South Carolina, appellant himself volunteered tha information that he had been convicted of bank robbery. He admitted he was the same person named in the exhibit of conviction. Appellant placed his own character into evidence by stipulating to a 1975 bank robbery, and then blurting out that he was convicted of bank robbery in 1966, all the while protesting that he had not done anything but “try to do good.” By all this, appellant himself called in the evidence of the 1966 bank robbery conviction and specifically brought it up. See Language v. State, 169 Ga. App. 649 (314 SE2d 485). There was no error in the admission of this evidence, on any ground.

3. Appellant complains the trial court should have dismissed this jury and called in another, under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) because the State exhausted all its peremptory strikes against black persons.

We find no Batson violation requiring reversal in this case. The singular purpose of Batson and all cases of its kind is to prevent the imposition of a racially discriminatory jury upon the defendant. Regardless how the State disposed of its peremptory challenges, and whatever its reasoning, the incontrovertible fact is that its actions did not result in a racially discriminatory jury. Seven black persons sat on the jury and the alternate juror was black. We will not reason backwards to a finding of technical error from the clear fact of a jury that was per se racially unbiased, for that would be a perversion of justice and a violation of the State’s right to fair trial, upon an empty technicality.

4. The evidence shows inter alia that, in addition to being immediately identified by the victim, appellant with another was seen robbing the store, by a policeman who recognized him from many years’ acquaintance; and that when he ran from the store he was pursued by another policeman who never lost sight of him until he was apprehended. All the evidence in this case is amply sufficient to enable a reasonable juror rationally to find appellant guilty of the offenses charged, according to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

While I agree with the majority in Divisions 1, 2, and 4, and in the judgment of Division 3, I cannot agree with all that is said in Division 3 concerning the reason for the Supreme Court’s decision in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69).

Unquestionably, one purpose of Batson was to “prevent the imposition of a racially discriminatory jury upon the defendant,” but I do not believe that was Batson’s only purpose. Another more important purpose was to improve the image of justice. It is not enough to revere the symbol of justice depicted by a statue showing a blindfolded lady with the scales of justice in one hand and a sword in the other. We must raise the public’s level of consciousness of the meaning of the statue in general and the blindfold in particular. The blindfold stands for the belief that justice is not a respecter of person or position, and that it does not tolerate the use of racially discriminatory conduct in any form in the courts of this nation. To countenance any infusion of racial discrimination in the trial process by governmental agencies is to tarnish the image of justice. Therefore, our abhorrence of racial considerations in the jury selection process is based on more than protecting a defendant’s right to an unbiased jury. It is also based on the belief that race has no place in determining whether a citizen should be allowed to serve on a jury. To believe otherwise would sacrifice justice’s image of impartiality.

Decided September 12, 1989.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory R. Jacobs, Assistant District Attorney, for appellee.

For too long we summoned minority jurors to serve, gave them orientation speeches about the importance of service, allowed them to be questioned on .voir dire about their fitness for service, and then sat back helplessly and watched them stricken from the jury panels through the peremptory process. Batson, at long last, brought an end to this horrible and unconscionable practice.

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. [Cits.] Discrimination within the judicial system is most pernicious because it is ‘a stimulant to that race prejudice which is an impediment to securing to (black citizens) that equal justice which the law aims to secure to all others.’ [Cit.]” Id. at 476 U. S. 87.

The main opinion, by overemphasizing the number of minority jurors who actually served, misses the point which Batson sought to advance by stating, “In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” Id. at 476 U. S. 99.


author: Beasley, Judge.

text:
    A89A1034.
    ROUNDTREE v. THE STATE.
    (386 SE2d 548)
   Beasley, Judge.

Roundtree appeals his conviction and sentence for armed robbery of a convenience store employee by use of a handgun, OCGA § 16-8-41 (a). His first trial was defective. Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987).

1. Appellant asserts error in denial of his motion to dismiss the indictment for failure to provide a speedy trial as required by the State and Federal Constitutions because almost twenty months elapsed between the filing of the remittitur and retrial. Although appellant cites Ga. Const. 1983, Art. I, Sec. I, Par. XI, he does not develop this ground and relies instead solely on case authority applying only Federal Constitutional law. This passing reference does not adequately raise a separate State Constitutional ground for consideration. See Crapse v. State, 180 Ga. App. 321 (1) (b) (n.1) (349 SE2d 190) (1986).

“ ‘In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: ... (a) (t)he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant . . . . The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.’ [Cit.] As to the prejudice factor there are ‘three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.’ [Cit.]; [Cit.]” Heinen v. State, 186 Ga. App. 373, 374 (367 SE2d 275) (1988).

(a) Length of delay. “ ‘(T)he mere passage of time is not enough, without more, to constitute a denial of due process.’ [Cits.]” State v. Fields, 137 Ga. App. 726, 727 (224 SE2d 829) (1976). It may, in fact, work to a defendant’s advantage; a 34-month delay was regarded as not violative, in Simpson v. State, 150 Ga. App. 814, 815 (258 SE2d 634) (1979). A 27-month delay passed constitutional muster in Treadwell v. State, 233 Ga. 468, 469 (211 SE2d 760) (1975).

(b) Reason for delay. Appellant contends that the State gave no reason for the delay. However, the prosecuting assistant district attorney informed the court that prior to his coming to the office, another assistant district attorney, no longer with the office, had handled the initial prosecution. After the first conviction had been reversed, all the files were inexplicably put in the closed section of the office files. Roundtree was later tried for other criminal offenses and the prosecutor obtained a certified copy of what he thought was the armed robbery conviction. At that point he discovered that the conviction had been reversed. Roundtree’s case was put on the next available trial calendar and he was tried.

The State’s undisputed explanation demonstrates negligence or oversight, but there is no evidence in the record that the State acted in bad faith or deliberately attempted to delay the retrial. See Heinen, supra at 374 (b). Upon discovery of the mistake, the State promptly tried the case.

(c) Assertion of right. Appellant contends that he adequately asserted his rights by filing a motion to dismiss, but at no time during the twenty months did appellant demand a speedy trial or otherwise raise the issue until filing the motion five days prior to retrial. See OCGA §§ 17-7-170; 17-8-21; 17-8-22; 17-8-33; State v. King, 137 Ga. App. 26 (1) (222 SE2d 859) (1975), and Andrews v. State, 175 Ga. App. 22 (332 SE2d 299) (1985). His delay in asserting his rights is a factor which weighs heavily against him. Haisman v. State, 242 Ga. 896, 898 (2) (252 SE2d 397) (1979); Simpson, supra at 816.

(d) Prejudice to defendant. Appellant’s only assertion in this regard is that the delay itself was prejudicial. This is not borne out by the record. After reversal, Roundtree was released on bond upon stipulation of the State. He remained free on that bond until his conviction for an offense committed while on bond. There can be no claim of oppressive pre-trial incarceration. Nor does he advance any claim of anxiety and concern over the delay in retrial. He was at liberty and thus able to commit another criminal offense. There is no evidence that the defense was impaired by the delay. See Heinen, supra at 375.

Consideration of all the factors mandates, on balance, the conclu-1 sion that the court did not contravene the Federal Constitution ini denying appellant’s motion to dismiss the indictment for lack of a I speedy trial. As in Heinen, supra at 376, “[t]he motion itself was anl anomaly, since what defendant sought was not a new trial but rather| an acquittal by operation of law . . . .”

2. The second question is whether the State’s evidence was sufficient to convince the trier of fact of his identity as the perpetrator. It consisted of the testimony of two witnesses, store employee Harde-j man and customer Dykes. Appellant urges that the evidence estab-l lished merely that the person involved in the robbery bore a resem-j blance to him.

The victim Hardeman testified that on the evening of SeptembeJ 1, 1985, she was working at the store when the two perpetrators enl tered between 10:00 and 10:30 p.m. They lingered for ten or fifteeij minutes until the other customers left. The store was lit by bright flourescent lighting. The gunman spoke face to face with Hardeman for at least three to five minutes while standing about two feet from her. When the man held the gun on Hardeman he was still about two feet away and she could see him all right. The men were in the store approximately twenty minutes, and Hardeman was able to describe them to police.

Decided September 15, 1989.

M. E. Thompson, Jr., for appellant.

Two or three days later, the victim was shown a twenty-photo lineup which did not include Roundtree; she did not select anyone. On September 9 she viewed a ten-photo lineup and identified Round-tree as the gunman; she also identified the accomplice. She viewed a photographic lineup of eight photos on January 13, 1986, and identified both men, with Roundtree as the gunman. Hardeman again positively identified Roundtree as the gunman at a preliminary hearing on February 26, on June 4 at the initial trial of the armed robbery, and at the present retrial on November 8, 1988. She stated at the retrial that her identification of Roundtree was based on her recollection of events that took place the night of the robbery.

Witness Dykes was shopping at the store. He stayed for about fifteen minutes because the two men lingering in the store aroused his suspicions. He paid for his selections, left the store, went home, and returned to get a forgotten item. When he arrived he found the police outside. Bystanders informed Dykes that apparently a robbery had taken place. Dykes approached one of the officers and told him he could recognize the two men he had observed earlier.

Dykes identified Roundtree as one of the men at a photographic lineup on February 26, 1986, at the preliminary hearing, at the initial trial, and at the retrial. At the latter, Dykes testified about a physical mannerism displayed by one of the men in the store and noted that Roundtree was sitting at the defense table exhibiting this same mannerism during Dykes’ testimony. Roundtree, when cross-examined, acknowledged that he had displayed the described mannerism of “propping up” during the course of the trial.

The witnesses’ credibility and the weight to be given their testimony about the perpetrator’s identity were for the jury to determine. OCGA § 24-9-80; Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980). The evidence was sufficient to enable a rational trier of fact to find that Roundtree committed the armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.


text:
    A89A0827.
    JONES v. CENTRAL OF GEORGIA RAILROAD COMPANY.
    (386 SE2d 386)
   Sognier, Judge.

James Jones, individually and as next friend of Tabatha Jones and Paula Jones, his minor daughters, brought suit against Central of Georgia Railroad Company to recover damages incurred when the vehicle in which Tabatha and Paula were passengers collided with the railroad’s stationary freight car located on the tracks at an intersection in Americus. The trial court granted the railroad’s motion for summary judgment and Jones appeals.

The record establishes these uncontroverted facts: on August 30, 1986, appellant’s daughters were passengers, along with their grandmother and three aunts, in an automobile driven by Charles James Fortson when the automobile collided with a stationary freight car at approximately 1:10 a.m. Fortson was transporting the grandmother to the hospital because she had been experiencing chest pains. Fortson testified in deposition that during daylight the crossing was visible from a distance of 700 to 1,000 feet; that on a clear night the crossing would be illuminated by a vehicle’s headlamps from a distance of 200 feet; but that on the night in question, he did not see the freight car until less than 20 feet away from it. The evidence is uncontroverted that Fortson was familiar with the crossing, having traversed the street once or twice every week for years, and knew trains used that crossing on a daily basis. The street approached the crossing at aj downgrade and had a posted speed limit of 35 miles per hour. Fortson testified he was traveling between 35 and 40 miles per hour down the street and had his foot on the gas pedal just before he saw the freight train in the crossing. From the approach to the crossing taken byl Fortson, there were seven advance warning signs posted on or along] the street, consisting of two orange reflectorized railroad warning| signs at 622 and 614 feet from the crossing, white pavement painl extending from 349 feet to 297 feet before the crossing, a reflectorizedl yellow “Stop Ahead” sign 313 feet from the crossing, a white stop bai 19 feet from the crossing, a reflectorized red stop sign 10 feet from the crossing, and a reflectorized white railroad crossbuck sign 9 feet froi the crossing.

Fortson subsequently pled guilty to a charge of driving too fas) for conditions and colliding with an object. Although the record con tains statements from the six passengers that they did not smell aleo hoi on Fortson or notice any erratic driving or unusual behavior by him, Fortson acknowledged in his response to requests for admission the existence and accuracy of a blood alcohol test performed an hour and a half after the collision which revealed he had a blood alcohol level of .11 percent.

“ ‘Although negligence cases are not frequently susceptible to final adjudication by motion for summary judgment, nevertheless, in cases of plain, palpable and indisputable evidence, summary judgment may be awarded. (Cits.)’ [Cit.]” Jenkins v. Storey Trucking Co., 184 Ga. App. 672 (1) (362 SE2d 466) (1987). As we noted in Hathcock v. Ga. Northern R. Co., 90 Ga. App. 533, 536 (83 SE2d 329) (1954), a case in which the passenger in an automobile that collided with a train filed suit against the railroad, “[w]hile it is true that in cases of this nature the negligence, if any, of the driver of the automobile in which the plaintiff was riding as a guest is not imputable to him ([cits.]), the plaintiff is not entitled to recover if the negligence of the driver of the automobile was the sole proximate cause of the plaintiff’s injuries. [Cits.]” Proximate cause in Georgia is defined in OCGA § 51-12-9: “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.”

“It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. [Cits.]” Union Carbide Corp. v. Holton, 136 Ga. App. 726, 729 (222 SE2d 105) (1975). “ ‘ “If an injury would have occurred notwithstanding alleged acts of negligence of the defendant, there could be no recovery,” in an action for negligence. (Cit.)’ [Cit.] ‘(W)here the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of (a) third person . . ., the defendant can not be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.’ [Cit.]” Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (345 SE2d 858) (1986).

Accordingly, even construing the evidence most favorably to appellant as the respondent and assuming appellee was negligent allowing its freight car to obstruct the intersection, the evidence clearly demonstrates that Fortson’s admitted action of driving while intoxicated and driving too fast for conditions and colliding with an object (i.e., the freight car) constituted the intervening efficient act which caused the accident and the injuries for which appellant sought recovery. Both parties argue the applicability of various cases involving intersections obstructed by railroad cars. However, even conceding questions of fact exist in the case sub judice regarding the weather conditions around the crossing at the time of the collision, the instant case, unlike those cited by the parties, contains uncontroverted evidence that the driver of the vehicle colliding with the freight train had a legally proscribed percentage of alcohol in his blood, was driving 35 to 40 miles per hour when visibility was less than 20 feet, and pled guilty to driving at an unsafe rate of speed for the weather conditions asserted and to colliding with an object.

Decided September 5, 1989

Rehearing denied September 18, 1989

John M. Beauchamp & Associates, Kermit S. Borough, Jr., for | appellant.

Henry 0. Jones III, Steuen J. Stewart, for appellee.

Therefore, we find no error in the trial court’s grant of summary judgment in favor of appellee. See generally Willis v. Allen, 188 Ga. App. 390, 392 (373 SE2d 79) (1988).

Judgment affirmed.

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


text:
    A89A1365.
    WILEY v. THE STATE.
    (386 SE2d 523)
   Sognier, Judge.

Terry Wiley was indicted on charges of burglary and rape. He was convicted of burglary and attempted rape and appeals.

1. Appellant contends the trial court erred by admitting a tape recorded statement made by appellant to the police without excising those portions of the tape in which appellant discussed getting anc using illegal drugs. “We find no error. ‘It is no valid ground of objecl tion to the admission in evidence of an incriminatory statement oi confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separatj offense.’ [Cit.]” Berryhill v. State, 235 Ga. 549, 551-552 (6) (221 SE2d 185) (1975).

2. Appellant contends the trial court erred by charging the jur| as to attempted rape because the evidence authorized the jury to cor sider only rape or nothing at all. However, the victim testified at tl trial that while appellant’s co-defendant did rape her, appellant faile| to penetrate the victim when he climbed on top of her and wer “through the motions of the” act because the victim was able to g(j appellant off her “to the point that he didn’t [succeed] to what he was doing . . . .” Such evidence is, to say the least, some evidence of attempted rape, and where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. Cole v. State, 186 Ga. App. 243, 244 (3) (366 SE2d 844) (1988).

Decided September 6, 1989

Rehearing denied September 18, 1989.

Dan T. Pressley, Sr., for appellant.

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

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A1380.
    GRIMES BRIDGE ASSOCIATES v. DOCTORS BUILDING PARTNERS.
    (386 SE2d 388)
   Banke, Presiding Judge.

The appellee, Doctors Building Partners, sued to recover damages for the alleged breach of a contract pursuant to which it had purchased a medical office building from appellant Grimes Bridge Associates, a Georgia limited partnership. Named as defendants in the action along with Grimes Bridge Associates were its limited and general partners, all of whom are also appellants in the present appeal. Each of these partners had leased a unit in the building from the partnership for a period of 28 years and had then sublet that unit to a tenant.

The contract to purchase the building was executed on November 14, 1986. It provided in pertinent part as follows: “Buyer agrees to assume seller’s responsibilities to all tenants under leases to the subject property, subject to the following: (a) Seller to acquire for the buyer, prior to closing, estoppel letters from tenants (estoppel letter to confirm pro rata payment of all expenses on property); . . . (c) Seller warrants that ... all leases are triple net with tenants paying all property expenses on a pro-rata basis (including taxes, insurance, ¡maintenance, water, and any other common utilities). . . .” Upon the execution of the contract, the seller was further required to provide the buyer with copies of all the leases.

The closing took place on December 22, 1986. The appellee alleges that sometime thereafter it became aware that one of the subles-sees, a Dr. Ronald Schwartz, had neither paid nor contracted to pay is pro-rata share of the common expenses. The appellee thereupon filed the present action against the appellants to recover an amount equal to the pro-rata share of the common expenses attributable to the unit occupied by Dr. Schwartz for the remainder of the term of his sublease. The trial court granted summary judgment to the appel-lees on the issue of liability, reserving the issue of damages for trial. This appeal followed. Held:

Decided September 5, 1989

Rehearing denied September 18, 1989

Jeffrey C. Hamling, for appellant.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellei

The appellants contend that the trial court erred in concluding as a matter of law that they were liable for breach of the sale contract. We agree.

In opposition to the summary judgment motion, the appellants established by affidavit that a copy of the Schwartz sublease had been furnished to the appellee prior to the closing and that an estoppel letter from Dr. Schwartz had been delivered to the appellee’s attorney at the closing. It is apparent that although this letter contained a paragraph certifying that Dr. Schwartz had paid and would continue to pay his “pro-rata share of the [building’s] operating cost,” Dr. Schwartz crossed through that paragraph before signing the letter.

Clearly, the performance of a contractual provision may be waived. See Turner &c. Advertising v. Fidelity &c., 185 Ga. App. 815, 817 (366 SE2d 201) (1988); C.P.D. Chem. Co. v. Nat. Car Rental Systems, 148 Ga. App. 756 (1) (252 SE2d 665) (1979). In the present case, while the appellants did not produce a “conforming” estoppel letter from Dr. Schwartz, the letter which they did provide prior to the closing clearly revealed that Dr. Schwartz did not consider himself responsible for his share of the building’s operating costs. By electing nevertheless to consummate the sale, the appellee must be deemed toi have waived the benefit of the contractual provisions at issue, which had been inserted into the contract solely for its benefit and protection. See C.P.D. Chem. Co. v. Nat. Car Rental Systems, supra; Davil v. Shubert, 168 Ga. App. 420, 421 (309 SE2d 415) (1983). It follows] that the trial court erred in granting the appellee’s motion for sum-1 mary judgment. I

Judgment reversed.

Sognier and Pope, JJ., concur. I


author: Deen, Presiding Judge.

text:
    A89A1487.
    WILLIAMS v. COOK.
    (386 SE2d 665)
   Deen, Presiding Judge.

Appellant Williams, a psychologist employed at Central State Hospital, was transferred from his position because of complaints that patients in the unit in which he worked had been abused by certain employees, a situation of which Williams allegedly had known but had failed to report to his superiors. There were also complaints that Williams could not get along with his fellow workers.

During the period of time before the decision to transfer Williams was- finalized, there came to the attention of the hospital’s superintendent an unsigned hand-written letter stating that a named female employee in Williams’ unit was spending an inordinate amount of time with Williams behind the closed doors of his office. The superintendent showed the letter to the deputy superintendent, and they agreed not to pursue the matter because it did not impress them as being reliable information.

During the course of the deliberations as to whether Williams should be transferred, the superintendent mentioned the existence of the letter to several persons in the direct chain of command over Williams, including appellee Cook, who was Treatment Unit Chief of the Long-Term Care Division. The hospital’s personnel officer was also told. After the decision to transfer Williams was made, it was Cook’s duty to tell Williams’ immediate supervisor, one Cowan, of the decision. He did so in private, giving Cowan the reasons for the decision and mentioning the letter as one of the reasons. Cook then asked Cowan to be present during the forthcoming private meeting with Williams at which the latter would be informed that he, along with several other persons in his unit, was being transferred. Cowan did so; Cook told Williams in Cowan’s presence why he was being transferred, and mentioned the accusations made in the anonymous letter. Williams filed suit against Cook for libel and slander. Cook moved for summary judgment, alleging that there was no publication; that the statements of which Williams complained were privileged communications; and that appellant had failed to show actual malice, as required when the defense of privilege is raised. The trial court granted the motion. Williams appeals, enumerating as error the award of summary judgment and the assessment of costs against the plaintiff. ¡Held:

1. It is well settled that a communication made by one corporate agent to another is not publication in the legal sense. See Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878) (1988). Publication of allegedly defamatory information in the course of an employer’s investigation of an employee’s job performance, when made to persons in authority, is not “publication” within the meaning of the law. Madden-Lee v. Day’s Inns of America, 184 Ga. App. 485 (361 SE2d 714) (1987); Jackson v. Douglas County Elec. &c. Corp., 150 Ga. App. 523 (258 SE2d 152) (1979). LuAllen v. Home Mission Bd., 125 Ga. App. 456 (188 SE2d 138) (1972). The record in the instant case makes it clear that those to whom the information concerning the anonymous letter and the accusation it contained was communicated were persons who, by reason of their job functions, needed to be informed of all the factors involved in the deliberations concerning Williams’ possible transfer. We agree with appellee that no publication, in the legal sense, occurred here.

2. Moreover, the disclosure of the letter and its contents to the persons to whom in the instant case the disclosure was made clearly falls within the ambit of privilege. OCGA § 51-5-7 defines as privileged “statements made in good faith in the performance of a public duty;. . . statements made in good faith in the performance of a legal or moral private duty . . .” In Jones v. J. C. Penney Co., 164 Ga. App. 432 (297 SE2d 339) (1982), this court held, at 434: “In defamation cases involving an employer’s disclosure to other employees of the reasons for a [personnel action], the general rule is that a qualified privilege exists where the disclosure is limited to those employees who have a need to know by virtue of the nature of their duties . . .” In the instant case all those hospital employees to whom the allegedly defamatory information was communicated were persons who “ha[d] a need to know,” starting with Williams’ immediate supervisor up through the echelons to the deputy superintendent, and also including the head of personnel, who almost by definition “had need tol know” of any change involving any of the hospital’s personnel. It ia difficult to conceive of a clearer-cut instance of privileged communica-l tion than that at issue here. I

3. Under OCGA § 51-5-9, however, any asserted privilege is invall idated by a showing that the privilege was “used merely as a cloak fo* venting private malice.” In the instant case appellant makes no suclfl showing. To the contrary, the record is replete with indications thal no actual malice was involved. Attached to the motion for summary judgment are the affidavits of appellee Cook and Superintendent Kurtz, recounting the circumstances under which information regardl ing the accusatory letter was passed along to those who for valid real sons needed to know of it, and affirming that no actual malice of anl sort was involved. Moreover, the record shows that other persons werl transferred at the same time as Williams, a further indication thal the entire transaction was a personnel decision made by person! whose responsibility it was to make such decisions, and that Williams was not singled out in a punitive manner. See Meyer v. Ledford, 170 Ga. App. 245 (316 SE2d 804) (1984).

Decided September 5, 1989

Rehearing denied September 18, 1989

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

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, B. Patricia Downing, Assistant Attorney General, Sell & Melton, John A. Draughon, for appellee.

Our examination of the entire record of the instant case (including the depositions filed in the supplemental record), together with relevant law, persuades us that the trial court did not err in granting summary judgment to appellee Cook.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

       Williams also sued the superintendent. In Kurtz v. Williams, 188 Ga. App. 14 (371 SE2d 878) (1988), the Court of Appeals reversed the denial of summary judgment to Superintendent Kurtz.


text:
    A89A1532.
    HOWARD v. THE STATE.
    (386 SE2d 667)
   Deen, Presiding Judge.

Ernest Lee Howard and Dennis Turner were indicted by the grand jury on two counts of armed robbery and two counts of theft by taking for the robberies of two convenience stores. Turner was also indicted on two counts of aggravated assault for threatening and beating the store clerks with a weapon. Turner entered guilty pleas to the charges and testified at Howard’s trial. Howard was tried by a jury and found guilty of the offenses with which he was charged.

1. Appellant filed a pretrial motion to exclude the playing of a videotape which showed Turner committing an armed robbery at one of the convenience stores, the assault upon the store clerk, and the victim slowly regaining consciousness from the attack. Howard contends that it was error to permit the jury to view the videotape because it prejudiced the jurors against him.

The State contended that Howard was a party to both crimes as defined in OCGA § 16-2-20 in that he drove the automobile which drove Turner to the crime scene, that the vehicle was used to enable Howard to escape from the crime scene, that the men shared the proceeds of the robbery in that it was used to purchase cocaine which they both ingested, and that Howard had prior knowledge of Turner’s plans. As Howard was a party to both crimes, the evidence was relevant and admissible to prove that one of the crimes occurred in the manner alleged.

| 2. The trial court correctly permitted the State to introduce portions of his codefendant’s statement into evidence, which stated that Howard knew Turner was committing robberies and that appellant’s role was to drive the getaway car.

At trial Turner testified that Howard did not know beforehand that he was going to commit the armed robberies. In a statement given to the police shortly after his arrest, however, Turner stated that Howard knew before each robbery that he planned to rob the store. A prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is not limited in value only for impeachment purposes, but may also be admitted as substantive evidence. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). Moreover, where a party has knowledge of a prior statement which contradicts the testimony just given, the witness may be impeached by the prior inconsistent statement. Conyers v. State, 249 Ga. 438, 440 (291 SE2d 709) (1982); Ranger v. State, 249 Ga. 315, 318 (290 SE2d 63) (1982); Jackson v. Ensley, 168 Ga. App. 822, 825 (310 SE2d 707) (1983).

Testimony that a portion of Turner’s statement in which he said that Howard drove the getaway car was also properly admitted as substantive evidence for the reasons stated above and did not invade the province of the jury by determining an ultimate fact in the case. Howard’s role in the robberies could be properly determined through this statement which was somewhat contradictory to Turner’s testimony at trial.

3. The court charged that “[a] crime is the joint operation between an act or omission to act and intention.” Appellant argues that such a charge was error because the case did not involve criminal negligence or omission to act and because the State was proceeding on an aiding and abetting theory.

The language of the charge given is taken directly from OCGA § 16-2-1, and the additional phrase “or criminal negligence” which follows “intention” was deleted from the charge, as it was inapplicable. Appellant cites no authority to support his position that the charge as given was erroneous. We find that the charge was warranted because the jury needed to determine if Howard’s actions fell within the legal definition of a crime. It is well established that “a charge citing a code section in its entirety is not error where a portion of the section is applicable so long as it does not appear that the inapplicable part misled the jury.” Davis v. State, 184 Ga. App. 230, 231 (361 SE2d 229) (1987). We find that any misleading portion of the Code section was deleted and that the charge as given was a correct statement of the law.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided September 5, 1989

Rehearing denied September 18, 1989

James C. Wyatt, for appellant.

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