text:
    A94A2052.
    ACREE OIL COMPANY v. DEPARTMENT OF TRANSPORTATION.
    (455 SE2d 590)
   Birdsong, Presiding Judge.

Georgia Department of Transportation (“DOT”) condemned a right of way for proposed turning lanes at an intersection in Toccoa, Georgia, which took part of the property of a gasoline station owned by condemnee Aeree Oil Company. The condemnation was announced in 1988; condemnee’s lessee learned the improvements would come within inches of the pump stations, so he moved in 1989. The date of taking was in January 1993. Condemnee contended $18,800 as established by DOT was not just and adequate compensation because before the announcement of taking, the property generated income of about $28,000 per year. When the compensation issue was tried in January 1994, construction had still not begun. On the day of this trial, DOT filed a motion in limine to exclude evidence of pre-acquisition losses. The condemnee agreed that pre-condemnation blight is not admissible to prove loss but condemnee said it intended to introduce evidence of the delay of this project, including that the project is “on hold” because of contamination from gasoline tanks on property located across the street; and that because of the uncertainty of the project, condemnee’s property has remained unoccupied since 1989, and it is unfeasible for condemnee to tear down its present station and build a $400,000 to $425,000 station until the project is completed, all of which affects the fair market value of the property and causes business losses. DOT argued that in order to recover business losses the condemnee must establish there was a business in operation on the date of acquisition and that if condemnee’s business was destroyed for use as a service station and gasoline tanks had to be removed for non-use as a result of the condemnation, no evidence could be admitted that it was a service station at the time of taking. Condemnee contended the underground tanks would be fit for use until 1998 unless DOT abandons the project, that the delay of the project and uncertainty whether condemnee would have to remove the tanks were elements of loss, and that this is an unusual situation in which the uncertain delay has diminished the value of the property not taken. Condemnee demanded to know when the project will be commenced but DOT answered, and the trial court agreed, that this is irrelevant. The trial court ruled that any values and damages could be established only up to the day of taking, January 20, 1993, and that condemnee would not be allowed to question when the project might begin and witnesses would not be allowed to testify to anything based on what might happen after the date of taking.

Condemnee appeals from the jury’s verdict of $28,800, contending the trial court erred in refusing to admit evidence of post-taking matters to show business losses and evidence of consequential damages caused by the anticipated construction, and erred in excluding evidence of the length and uncertainty of construction and the fact that the project was put “on hold.” Condemnee also contends the trial court erred in excluding evidence as to what condemnee would have done with the site until 1998 had the land not been taken; and erred in refusing to allow evidence of having to tear down and rebuild the service station. Condemnee further contends the trial court erred in excluding evidence that its tenant lost accounts because of having to move. Held:

1. Condemnee Aeree Oil states six enumerations of error asserting under broad headings that the trial court erred in excluding evidence of certain post-taking matters. In violation of Court of Appeals Rule 15 (a) (1) (now Rule 27 (a) (1)), condemnee also fails to state the method by which each enumeration of error was preserved for consideration on appeal. The sequence of argument in appellant/condemnee’s brief does not follow the order of the enumeration of errors and is not numbered correspondingly, in violation of Rule 15 (c) (now Rule 27 (c)). The form of the brief does not follow the enumerations but argues all six enumerations at once; no specific enumerations are made as to specific evidence excluded, and only in the argument are stated examples of excluded evidence. The result is a hodgepodge of argument which relates to all alleged errors intermingled and none specifically, and which called forth a further confusing of the issues by appellee DOT, and a reply by condemnee. A party on appellate review cannot expand the scope of review or supply additional issues through a process of switching, shifting and mending its hold; statements in appellate briefs cannot expand the scope of review to include issues not reasonably contained in the enumeration. Jabaley v. Jabaley, 208 Ga. App. 179, 180 (430 SE2d 119). As they are argued generally, we shall therefore answer generally the first six enumerations relating to the exclusion of evidence of post-taking events, and any other errors are deemed abandoned.

Losses occurring before the actual date of taking and diminution in value as a result of an anticipated condemnation are not compensable. Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346); Antique Center &c. v. City of Roswell, 196 Ga. App. 894 (4) (397 SE2d 146). Compensation is determined by the value of the property at the time of its taking. Housing Auth. &c. v. Schroeder, 222 Ga. 417 (151 SE2d 226). Business losses based on a condemnee’s inability to rent improvements after the condemnor announced its plans to take the property are not compensable. Collins v. MARTA, 163 Ga. App. 168, 170 (6) (291 SE2d 742). Likewise, since “[i]n all cases, the only question for decision is the value of property (or consequential damages) at the time of taking,” (Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (447 SE2d 159), business losses occurring after the day of taking are not compensable. A temporary loss of business associated with the extinguishment by condemnation of condemnee’s property interest is not a proper element for consideration in determining just and adequate compensation (Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 826 (387 SE2d 877)); “an interruption of business is not compensable unless condemnee has irrevocably lost something of value.” Id. at 826-827. But, “evidence of any business losses which result in a diminution of the value of a condemnee’s business is admissible.” (Emphasis supplied.) Id. Obviously, property “facing [a] loss of business” after the day of taking “may suffer a diminution in fair market value” on the day of taking. Id. It is not controlling whether there was a business in operation on the day of taking, so long as the loss affects the market value of the condemnee’s property on the day of taking.

As to both consequential damages to the property not taken and business losses which affect the value of the property not taken, the condemnee may show that the future delay and uncertainty of the project affected the value of the condemnee’s property on the date of taking; this may include evidence that the project will not be completed until a certain or uncertain time into the future. Dept. of Transp. v. Sequoyah Land Investment Co., 169 Ga. App. 20 (311 SE2d 488); Dept. of Transp. v. Delta Machine Prod. Co., 157 Ga. App. 423, 424 (278 SE2d 73); see Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 228 (312 SE2d 344). Evidence of uncertainty as to the period of construction, as to whether condemnee will have to remove the gasoline tanks and reconstruct its buildings, and as to what this might cost, and evidence that the project is “on hold,” is admissible if such factors affect the value of the property on the day of taking. Any evidence is relevant and admissible which logically tends to prove or disprove any material fact at issue, and every fact or circumstance which may throw light on a material issue is relevant; it is the rule that where the relevancy or competence of evidence is doubtful, it should be admitted and its weight left to the jury under appropriate instruction. Id. at 424-425. As to whether evidence of uncertainty and delay in the project as it affects the use of the property is “speculation,” this is a question for the jury. The very speculative nature of such questions may affect the value of the property not taken, in the circumstances of this case.

This answers enumerations of error one through six. If it does not answer questions as to examples of excluded evidence not specifically enumerated as error but listed in the argument portion of appellant’s original brief, such errors are deemed abandoned.

2. Enumerations eight and nine are related to enumerations one through six. Enumeration eight contends the trial court erred in excluding evidence as to what condemnee would have done with the subject service station until 1998 had the condemnation project not gone through. We cannot approve the admission of such broad and speculative evidence. Such evidence is admissible only to the extent that it proves that market value of the property not taken is diminished by the taking on the day of taking. Buck’s Svc. Station, supra. Enumeration nine complains the trial court erred in excluding evidence as to what would be involved in tearing down and rebuilding the service station at the site. This evidence is admissible if these factors affect the market value of the property not taken on the day of taking, as held in Division 1.

3. Appellant contends the trial court erred in excluding evidence that condemnee’s lessee lost customer accounts because of his move from condemnee’s service station to another location. Condemnee contends this evidence would show the property is unique because of its location. Evidence of business losses by a lessee after the lessee moved to another location is too speculative to prove the value of the condemnee’s property not taken (i.e., consequential damages) on the day of taking. The case cited by condemnee, Dept. of Transp. v. Livingston, 202 Ga. App. 67 (413 SE2d 249), refers not to consequential damages but to business losses of the condemnee brought about by the total taking of his owned and operated service station, and is not controlling.

Judgment affirmed in part and reversed in part.

Blackburn and Ruffin, JJ., concur.

On Motion for Reconsideration.

DOT says that in allowing a condemnee to show that delay and uncertainty of the project affected the value of the property on the date of taking, we have created a “new rule” which will allow “damages” for the “effect of the project,” in direct contradiction to Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777). Simon is not pertinent to this case. The issue in Simon was whether evidence could be admitted of “the possibility” that an adjoining neighbor who was landlocked by the condemnation would seek a private right-of-way across the condemnee’s property. Both the Court of Appeals and the Supreme Court perceived Simon’s claim as being a claim for damages “based not only on the ‘taking’ of her property . . . but also in part on the taking of the property of her adjoining landowner.” Dept. of Transp. v. Simon, 151 Ga. App. 807, 811 (261 SE2d 710); see Simon, supra at 479. We have held only that Aeree Oil may show any element which affected the value of its property on the date of taking, including that the unusual delay and uncertainty of this project affected the value of the remaining property. This is an old rule. See Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825 (387 SE2d 877).

In pushing the idea that we held a condemnee can get damages for the effect of the project, DOT says that under this decision DOT could even argue that adverse effects suffered by Aeree Oil’s competítors due to the delay can be shown as “consequential benefits” to offset any consequential damages suffered by Aeree Oil due to delay in the project; further, DOT says the grounds for inverse condemnation have been vastly enlarged because under this decision “any property owner or business operator whose property or business has suffered a diminution in value caused by the uncertainty and delay in a project has suffered a compensable taking though not an inch of their land was used or acquired.” Such flights of fantasy discredit DOT’S efforts to limit condemnees’ right to compensation for the diminution of property value on the date of taking.

DOT says Dept. of Transp. v. Sequoyah Land Investment Co., 169 Ga. App. 20 (311 SE2d 488), Dept. of Transp. v. Delta Machine Prod. Co., 157 Ga. App. 423 (278 SE2d 73), and Dept. of Transp. v. Whitehead, 169 Ga. App. 226 (312 SE2d 344), involved a loss of access to condemnee’s remaining property. In each of those cases, however, loss of access was clearly not the founding basis of the holding but was only one factor showing that loss of business affected the value of the remainder.

Decided November 1, 1994

Reconsideration denied March 10, 1995

Adams, Clifton & Sanders, Alton M. Adams, Stewart, Melvin & House, Frank W. Armstrong III, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Hulsey, Oliver & Mahar, Thomas L. Fitzgerald, R. David Syfan, for appellee.

DOT contends any error in the trial court’s ruling was harmless because Aeree Oil was able to present essentially all the evidence it wanted to admit. This is false. The trial court repeatedly and consistently sustained DOT’s objections to the evidence Aeree Oil tried to get before the jury.

Motion for reconsideration denied.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A2070.
    MASSEY v. KIM.
    (455 SE2d 306)
   McMurray, Presiding Judge.

Raymond Massey (plaintiff) filed an action against Young K. Kim (defendant) for injuries he allegedly sustained while shopping in defendant’s retail clothing store. Defendant denied the material allegations of the complaint and proceeded with discovery. However, plaintiff sought to stay all proceedings pursuant to the Soldiers’ & Sailors’ Civil Relief Act of 1940, 50 USCA App. § 501 et seq., alleging that he is a member of the United States infantry; that he is stationed in Germany and that he is unable to effectively prosecute this action against defendant until discharge of his duties overseas. Defendant acknowledged in a letter to plaintiff’s attorney that “the case cannot be tried until [plaintiff] returns [, but claimed that] the Soldier’s & Sailor’s Civil Relief Act [provides that] written discovery may proceed where the service person’s ability to respond or undertake written discovery (by use of the mails) is not materially affected by reason of his military service.” The trial court agreed, taking judicial notice “that the ability to communicate across the Atlantic Ocean has improved from its condition in 1940 when 50 U.S.C.A. 521 became law to a point wherein it is quite commonplace and readily available [and denied plaintiff’s] Motion for Stay under the Soldiers and Sailors Civil Relief Act as to pre trial [sic] discovery. . . .” This appeal followed. Held:

Decided February 15, 1995

Reconsideration denied March 10, 1995

L. B. Kent, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Theodore D. Morgan, for appellee.

1. Defendant moves to dismiss this direct appeal on the ground that the case is still pending in the trial court, arguing that the trial court did not deny plaintiff’s motion for stay of the entire proceeding but limited denial of plaintiff’s motion to stay the proceedings to matters of pre-trial discovery. This contention is without merit.

“The weakness of this argument lies in the fact that the order excepted to is an unconditional grant of the relief provided for by the Federal statute. . . . The judgment is final as to the subject-matter with which it deals, to wit: stay of proceedings as provided by the statute. No further ruling or judgment is necessary or required by law to give full force and effect to this provision of the statute; and [plaintiff] had to choose between: (1) abiding by that judgment [and proceeding with discovery], or (2) obtaining a review thereof by a bill of exceptions. No case is left pending, in so far as the case is made by the application for a stay of proceedings; and in this respect the judgment is the same as an interlocutory injunction and may be reviewed by a [direct appeal]. Mendenhall v. Stovall, 191 Ga. 452 (12 SE2d 589).” City of Cedartown v. Pickett, 194 Ga. 508, 510 (1), 511 (22 SE2d 318). Accordingly, defendant’s motion to dismiss this appeal is denied.

2. Plaintiff contends the trial court erred in failing to stay discovery proceedings, arguing there is no evidence to rebut his showing that he is in the military and is therefore entitled to relief pursuant to the Soldiers’ & Sailors’ Civil Relief Act of 1940. This contention was raised and rejected in Foster v. Alexander, 208 Ga. App. 593, 594 (431 SE2d 415). For the same reasons, we reject this enumeration of error. The trial court did not err in denying plaintiff’s “Motion for Stay under the Soldiers and Sailors Civil Relief Act as to pre trial [sic] discovery. . . .”

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A94A2582.
    MURRAY v. THE STATE.
    (455 SE2d 79)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with 14 counts of armed robbery (Counts 1 through 14), two counts of aggravated assault with a deadly weapon (Counts 15 and 16), two counts of cruelty to children (Counts 17 and 18), 18 counts of kidnapping (Counts 19 through 36), two counts of aggravated assault upon a peace officer (Counts 37 and 38) and one count of possession of a firearm during the commission of a felony (Count 39). After consulting with two attorneys and considering the State’s petition for a negotiated plea (totaling three consecutive life terms followed by a twenty-year prison sentence), defendant decided to enter a plea of guilty to all thirty-nine counts of the indictment and submit to sentencing without recommendation (pursuant to a plea bargain) by the State.

At arraignment, the trial court made inquiry on the record as to the factual basis of defendant’s plea pursuant to Uniform Superior Court Rule 33.9, thus revealing that all thirty-nine counts of the indictment stem from an incident whereby defendant engaged in a shoot-out with law enforcement officers immediately after his use of a rifle to intimidate, rob and abduct numerous patrons and employees (including two minors) of a Pizza Hut restaurant on Abercorn Street in Savannah, Georgia. The trial court then questioned defendant extensively regarding the knowing, free and voluntary nature of his plea, fully advising defendant of the serious consequences of the choices confronting him. During this examination, defendant affirmed that he understood the consequences of his intended action and indicated that he wished to go forward with the guilty plea. Defendant also affirmed that he had consulted with his attorney and professed satisfaction in the representation provided by his attorney. Defendant then entered a plea of guilty to all 39 offenses charged in the indictment and the trial court accepted the plea.

In aggravation of punishment, the State presented evidence showing that defendant committed two separate similar criminal transactions in the Savannah area within the six-month period prior to commission of the crimes charged in the case sub judice. In response, defense counsel called three character witnesses (including the defendant’s mother) who testified as to defendant’s good, faithful and honorable character. Defense counsel also offered proof of defendant’s accomplishments while in prison (i.e., “his certificate of general education and development . . .”) and a letter from a prison guard reflecting defendant’s good behavior during incarceration. Defendant then consulted with his attorney and elected to enter the following statement before testifying: “Your Honor, all I can say, really, is that I made a mistake. I’ve caused my family more grief than I should have by error in judgment that I had. At the time, I felt that my problems were too much for me to cope with and I felt that I needed to do something. I just made the wrong mistake in judgment for what I did. That was the first time that I’ve ever did anything like that, and when I did it, it was a scary situation. I’m glad it’s over. ... I know I deserve punishment of some sort. As far as everything else that happened, if it’s anything else that I’ve done, I confess to it, because I’m not the type of person to just dodge something that I did. If I know I did it, I’ll confess to it. Like I said, I’ve tried to do things the best that I could, and I felt that there was no other way for me when I did that.”

Following argument of defense counsel and the State’s attorney, the trial court sentenced defendant to serve fourteen concurrent life terms for the armed robberies (Counts 1 through 14), followed by four consecutive twenty-year prison terms for the aggravated assaults (Counts 15 and 16, 37 and 38), followed by two concurrent ten-year prison terms for committing separate acts of cruelty to children (Counts 17 and 18), followed by eighteen concurrent twenty-year prison terms on the kidnapping charges (Counts 19 through 36), followed by a five-year prison term for being in possession of a firearm during the commission of a felony (Count 39).

Defendant filed (via assistance from a third attorney) a motion to modify his sentence and a motion to withdraw his guilty pleas, asserting (in pertinent part) the following: “Defendant maintains that at the time of his plea he had had no contact with retained counsel and believed that he was going to a bond hearing. He had never discussed the evidence in the case with counsel. He had never discussed the possibility of a plea with counsel and he had never discussed the prospective sentences he might receive under an open ended plea with counsel.”

At a hearing, the State presented evidence repudiating defendant’s assertions of ineffective assistance of counsel. Specifically, the evidence reveals that defendant was first represented by retained counsel on July 2, 1993, 17 days after defendant’s arrest. This attorney met with defendant (either personally or via associates with his law firm) at least six times during a period of about three months, talked with members of defendant’s family about representing defendant, “show[ed] and explained] the indictment” to defendant, advised defendant of the elements of the crimes charged, discussed possible defenses to the indictment with defendant, informed defendant that the State had the burden to prove guilt beyond a reasonable doubt, went over the State’s offer for a negotiated plea and advised defendant that he “vehemently” opposed accepting the State’s plea bargain in light of pending charges against defendant stemming from his alleged participation in two prior similar criminal transactions. This attorney also represented defendant at a preliminary hearing and concluded (based on overwhelming proof that defendant committed the crimes charged and testimony that defendant begged law enforcement officers to kill him at the time of apprehension) that defendant’s only likely defense involved “a question of [defendant’s] sanity.” This attorney advised defendant that he was facing “at least a life sentence if the investigation as to the sanity question didn’t turn up something.”

After failing to fully compensate his first attorney, defendant retained another attorney on October 13, 1993. This attorney had been personally acquainted with defendant and defendant’s family for about four years prior to being retained. The second attorney talked with defendant on four separate occasions before defendant entered the open-ended guilty pleas and he investigated defendant’s case by discussing the matter with the State’s attorney and reviewing discovery materials provided by the State. This attorney advised defendant of the evidence the State had collected, informed defendant of the respective burdens of proof at trial, apprised defendant of the elements of the crimes charged, informed defendant of possible sentences for the crimes charged and discussed the State’s negotiated plea offer with defendant. In this regard, defendant’s second attorney “indicated to [defendant] that if we went open-ended, it was my feeling that the Judge wouldn’t do any worse than what the plea offer was.” Defendant never indicated a desire to proceed with a trial.

This appeal followed denial of defendant’s motions to modify his sentence and to withdraw his guilty pleas. Held:

1. Defendant contends the trial court erred in denying his motion to withdraw his guilty plea based on ineffective assistance of counsel, arguing that his second attorney’s failure to investigate the question of his sanity or to adequately confer with him before arraignment caused him to enter a plea of guilty without full knowledge or understanding of the consequences of his actions.

“In Hill v. Lockhart, 474 U. S. 52, 56 (106 SC 366, 88 LE2d 203) (1985), the Supreme Court held that the test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), applies when guilty pleas are challenged based on ineffectiveness of counsel. Under these circumstances, to satisfy the second prong of the Strickland test a defendant must show there is a reasonable probability that but for counsel’s deficiency he would not have pled guilty, but would have insisted upon going to trial. Hill, supra, 466 U. S. at 59.” Edmond v. State, 214 Ga. App. 707, 708 (2) (448 SE2d 775).

In the case sub judice, defendant offered no probative evidence supporting his claim of the availability of a defense of impaired mental capacity. Further, there is no indication that defendant attempted to obtain such proof after arraignment (via request for a professional evaluation of his mental health) in order to substantiate a theory that he is not criminally responsible for the violent acts he committed. Under these circumstances, we find no basis for defendant’s claim that his second attorney provided ineffective assistance by either failing to investigate the possibility of a defense of impaired mental capacity or failing to advise defendant that such a defense was possible. In addition, deferring to those portions of the record supporting the trial court’s ruling, Kidwell v. State, 264 Ga. 427, 432 (11) (444 SE2d 789), defendant failed to demonstrate that the representation provided by his second attorney fell below an objective standard of reasonableness or that there is a reasonable probability that the disposition of the case sub judice would have been different but for the alleged deficiencies. Strickland v. Washington, 466 U. S. 668, supra. See Scott v. State, 185 Ga. App. 568, 570 (3) (365 SE2d 127); Thompson v. State, 208 Ga. App. 825 (432 SE2d 250). Accordingly, the trial court did not err in denying defendant’s motion to withdraw his guilty pleas on the ground of ineffective assistance of counsel. See Whitehead v. State, 211 Ga. App. 121 (438 SE2d 128). Compare Wharton v. State, 248 Ga. 265 (282 SE2d 310).

Decided February 28, 1995

Reconsideration denied March 10, 1995

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

2. Defendant next contends the trial court abused its discretion in refusing to modify his sentence.

“OCGA § 17-10-1 authorizes the trial judge to impose any sentence within the minimum and maximum prescribed by law as punishment for the crime. See Jefferson v. State, 209 Ga. App. 859, 862-863 (2) (434 SE2d 814) (1993).” Williams v. State, 214 Ga. App. 421, 422 (4) (447 SE2d 714). In the case sub judice, it is undisputed that the sentences imposed by the trial court were within the range of punishments prescribed by law. Consequently, the trial court did not abuse its discretion in denying defendant’s motion to modify his sentence.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A2023.
    BATES v. THE STATE.
    (454 SE2d 811)
   Smith, Judge.

Following a jury trial, Richard Bates appeals from his conviction entered on a charge of sexual battery. OCGA § 16-6-22.1 (b). He argues the trial court erred in denying his pretrial motion to rule admissible evidence that the victim had allegedly engaged in sexual activity with her ex-boyfriend during the “55 to 57 hour period immediately prior to the alleged act of sexual battery.” He also contends the trial court erred in applying the rape shield statute, OCGA § 24-2-3, in ruling the evidence inadmissible. Bates’s essential position at trial was that the alleged sexual activity of the victim he sought to present to the jury somehow proved the victim’s vindictive attitude towards Bates.

This is clearly not a case where the trial court felt compelled to exclude evidence of the victim’s past sexual conduct based solely on the rape shield statute. On the contrary, the transcript reveals the trial court was of the opinion “that [the evidence subject to Bates’s motion in limine] has no bearing at all on this case, and any of those allegations are separate and distinct and totally unrelated and would certainly — obviously the reason those kinds of things are not allowed is it would be highly prejudicial and wouldn’t have any bearing on the case that’s going to be tried.” We agree. Villafranco v. State, 252 Ga. 188, 194-195 (2) (313 SE2d 469) (1984), relied upon by Bates, is readily distinguishable precisely because the evidence excluded in that case was otherwise admissible “as evidence of existing motive and state of mind.” Id. Bates’s argument here, on the other hand, is specious at best, and we are wholly unconvinced that the evidence excluded tended in any way to disprove any element of the State’s case. We therefore conclude the trial court properly exercised its discretion in applying the rape shield principle in a case where not required by statute to do so.

“The scope of cross examination is not unlimited. The extent of permissible cross examination lies within the sound discretion of the court. [Cits.] An irrelevant or immaterial line of inquiry may be curtailed. [Cits.] Inquiry into the prosecutrix’ past sexual experiences [is] irrelevant to whether or not she was molested by this defendant. [Cits.]” (Emphasis supplied.) Decker v. State, 139 Ga. App. 707, 708 (2) (229 SE2d 520) (1976). The reasoning applied in Decker is equally applicable in this case, and it is the same reasoning that both predates and underlies OCGA § 24-2-3. See Lynn v. State, 231 Ga. 559 (203 SE2d 221) (1974).

Bates argues the rape shield statute should not be “expanded” to apply to sexual offenses punished as misdemeanors. However, we need not decide this question, which reveals a basic misunderstanding of the statute’s true function. OCGA § 24-2-3 does not generally authorize the court to exclude evidence of a victim’s past sexual conduct in rape cases, but instead acts to curtail severely the discretion the trial court might otherwise have to allow essentially irrelevant and potentially prejudicial evidence of the victim’s past sexual conduct to be admitted in such trials. It therefore follows that in a proper case a trial court may, in its discretion, apply the “rape shield” principle even where the exclusion is not mandated under OCGA § 24-2-3.

Decided March 10, 1995.

Van C. Wilks, for appellant.

Wiggins & Camp, S. James Tuggle, for appellee.

It would pervert the intent of the General Assembly to hold that if an offense is not specifically covered under OCGA § 24-2-3, the trial court is without discretion to curtail an otherwise “irrelevant or immaterial line of inquiry.” Decker, supra. The trial court’s ruling and reasoning reveals no abuse of discretion and therefore constitutes no basis for reversal.

Judgment affirmed.

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

       It appears that the most significant policy served by the rape shield statute is that “[i]t encourages victims of rape to come forward with the truth.” Harris v. State, 257 Ga. 666, 667 (1) (a) (362 SE2d 211) (1987). However, when considering the discretionary application of the principle behind excluding testimony of a prosecutrix’ past sexual conduct, Harris also aptly observes that “[w]omen who have already been victimized do not wish to be placed in the position of having their past ‘self exposed when it serves no purpose but to ‘chill’ the reporting of a crime.” (Footnote omitted.) Id. at 667 (1) (b). When that is indeed the only purpose served, it is beyond cavil there can be no error in the discretionary exclusion of such evidence.


author: Pope, Chief Judge. McMurray, Presiding Judge,

text:
    A94A2234.
    THE STATE v. COLEMAN.
    (455 SE2d 604)
   Pope, Chief Judge.

In this DUI case, the State appeals the trial court’s grant of defendant’s motion in limine to exclude the results of a breath test. We agree with the trial court that the arresting officer misinformed defendant (an out-of-state resident) about the consequences of his refusal to submit to the test, and therefore affirm.

Officer Michael Saunders stopped defendant at a routine roadblock in the early morning hours of September 19, 1992. Defendant had an out-of-state license and an out-of-state tag on his truck. Noticing that defendant smelled of alcohol, seemed nervous, and had red eyes and a flushed face, Officer Saunders administered several field sobriety tests. After defendant performed poorly on these tests, Officer Saunders arrested him and read him the implied consent warning, including the following sentence: “Under OCGA § 40-5-55 and 40-5-153, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test.”

This case is controlled by Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993), in which we reversed the trial court’s denial of a motion in limine under similar circumstances. Georgia is without authority to revoke or suspend a non-resident’s driver’s license; it may revoke or suspend only the non-resident’s privilege of driving a motor vehicle on the highways of this state. Id. at 422. Thus, when the non-resident defendant in Deckard was told he would lose his driver’s license for six months, he was misinformed regarding the consequences of his failure to submit to the test, and such misinformation constituted unlawful coercion. Id. at 422-423. Defendant in this case was misinformed about his options in the same way. The State notes that in Deckard the defendant was told that his driver’s license would be suspended, while defendant here was told that he would lose his privilege to operate a motor vehicle. This is a distinction without a difference, however, as the officers in both cases omitted the crucial fact that the defendant’s refusal to submit to the test would affect his ability to drive on the highways of this state. Accordingly, as in Deckard, defendant in this case was deprived of making an informed choice, and the test results are inadmissible.

The dissent asserts the officer’s warning was not inaccurate since Georgia is obligated to notify the non-resident driver’s home state, see OCGA § 40-5-51, and the home state in this case would probably revoke defendant’s driving privileges under their own law. But the State of Georgia cannot control or know for certain what other states will do, and the North Carolina law cited by the dissent is not a uniform law. We all agree that we need to provide patrol officers with guidance in this matter, and the rule regarding warnings for out-of-state residents certainly should not depend on which foreign state the driver is from and how that state handles such situations. Thus, in accordance with Deckard, the officer’s warning should include the limiting language “on the highways of this state.”

The dissent also suggests that since the home state may revoke the out-of-state resident’s license after receiving notification of the Georgia offense, it actually may be inaccurate to limit the warning to “on the highways of this state.” However, this potential problem is easily remedied by the insertion of the words “at least,” so that nonresident drivers are informed that they will lose their driving privileges, “at least on the highways of this state,” for six to twelve months.

Anthony v. State, 211 Ga. App. 622 (3) (441 SE2d 70) (1993) and State v. Reich, 210 Ga. App. 407 (2) (436 SE2d 703) (1993) are cited as precedent conflicting with Deckard. Unlike the defendants in Deckard and this case, the defendants in Anthony and Reich did not argue that the warning was inaccurate because Georgia was without authority to revoke driving privileges beyond its borders; rather, they argued that the warning was inaccurate because Georgia was not at that time fulfilling its statutory obligation to notify the home state. Moreover, the defendant in Reich refused to take the test after the warning was given, and as the Reich opinion pointed out, it is unlikely that overstating the penalty for refusing to take the test would coerce someone into refusing to take the test. Thus, Anthony and Reich may be technically distinguishable. To the extent that Anthony and Reich are inconsistent with the holding of Deckard and this case, however, Anthony and Reich are overruled.

Judgment affirmed.

Beasley, C. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., Birdsong, P. J., and Andrews, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that Georgia’s Implied Consent law sufficiently apprises non-resident motorists suspected of drunk driving in Georgia of the consequences of the decision not to submit to a state-administered test for the presence of drugs or alcohol. Further, I believe the majority overrules the wrong case law in this instance. Rather than overrule factually distinguishable holdings in Anthony v. State, 211 Ga. App. 622, 624 (3) (441 SE2d 70), and State v. Reich, 210 Ga. App. 407, 408 (2) (436 SE2d 703), I would take this opportunity to overrule Deckard v. State, 210 Ga. App. 421 (436 SE2d 536), for the following reasons.

There is no question that Officer Michael Saunders properly advised defendant, in the case sub judice, pursuant to the relevant portion of Georgia’s Implied Consent law, informing defendant that “you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test.” See OCGA § 40-5-67.1 (b) (2). However, the majority says this admonition is not enough for non-residents suspected of drunk driving in Georgia because it fails to inform them that Georgia does not have the power to “absolutely suspend or revoke a nonresident’s driver’s license. . . .” Deckard v. State, 210 Ga. App. 421, 422, supra. In other words, the majority steps beyond the basic admonitions prescribed by the legislature in OCGA § 40-5-67.1 (b), further requiring police officers to give non-residents advice regarding possible diminished risks of losing their out-of-state driving privileges for failing to submit to one of the chemical tests required by OCGA § 40-5-55 (a). This is not practical.

Police officers are not lawyers and they are not required to engage in such legal speculation. See O’Connor v. Tofany, 329 NYS2d 715, 717 (1972). “The moment we add a requirement to the statute that the arresting officer make a verbal explanation and interpretation of the rights of an arrested person under the implied consent law, others will contend that the officer’s explanation served to obfuscate rather than elucidate.” Massaro v. Dolan, 535 P2d 1135, 1136 (1975). For this reason alone, I do not think it is wise to require an arresting officer to make any comments concerning a drunk driving suspect’s legal rights outside the requirements legislatively prescribed under Georgia’s Implied Consent law. Further, I do not believe the defendant in the case sub judice was misinformed and thereby unlawfully coerced into submitting to a state-administered test for the presence of alcohol in his blood. On the contrary, it is my view that the general admonition Officer Saunders gave defendant was an accurate statement of law which not only apprised defendant that his driving privileges would be revoked in Georgia, but also placed defendant on notice that his driving privileges would be revoked or suspended to the furthest extent provided by law. From this perspective, it becomes apparent that the premise projected in the majority opinion (i.e., Georgia has no power to effect suspension of defendant’s out-of-state driver’s license) is wrong.

OCGA § 40-5-51 (c) requires the Georgia Department of Public Safety to forward a certified copy of the record reflecting revocation of defendant’s driving privileges to defendant’s home state, North Carolina. North Carolina’s Uniform Driver’s License Act provides for suspension of the license of any driver who “[h]as committed an offense in another state, which if committed in [the] State [of North Carolina] would be grounds for suspension or revocation. . . .” G. S. § 20-16 (a) (7). Like Georgia, North Carolina’s Implied Consent statute provides that “[r]efusal to take any required test or tests will result in an immediate revocation of [a person’s] driving privilege. . . .” G. S. § 20-16.2 (a) (2). In my view, the State of Georgia is empowered to effect suspension of defendant’s North Carolina driver’s license and that Officer Saunders’ warning to defendant (i.e., “you will lose your privilege to operate a motor vehicle . . . should you refuse to submit to the designated State administered chemical test”) was an accurate assessment of Georgia’s power to effect suspension of defendant’s driver’s license. Consequently, I cannot agree with the majority’s conclusion that defendant was “misinformed regarding the consequences of his failure to submit to the test, and [that] such misinformation constituted unlawful coercion.”

Decided March 10, 1995.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellant.

John D. Stone, for appellee.

For the foregoing reasons, I would overrule Deckard v. State, 210 Ga. App. 421, supra.

I am authorized to state that Presiding Judge Birdsong and Judge Andrews concur in this dissent.

       This court infers in Deckard v. State, 210 Ga. App. 421, 422, supra, that the arresting officer’s statutory implied consent warnings would not have been misleading had the defendant (a drunk driving suspect from Tennessee) been informed that his driving privileges would only be suspended on the highways of Georgia. However, this admonition would also have been deficiently misleading since Georgia mandates certification of any such suspension or revocation to a non-resident’s home state, OCGA § 40-5-51 (c), and since the defendant’s home state in Deckard authorizes recognition of driver’s license revocations or suspensions from other states upon proper circumstances. Tenn. Code Ann. § 55-50-502 (a) (7). Of course, these facts also demonstrate the frailty of the controlling premise in Deckard that Georgia has no power to effect revocation of a non-resident’s driver’s license.


author:
Beasley, Chief Judge.
      Andrews, Judge,

text:
    A94A2663.
    ABERCROMBIE v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (454 SE2d 813)
   Beasley, Chief Judge.

Plaintiff Abercrombie appeals the grant of summary judgment to Georgia Farm Bureau Mutual Insurance Company (insurer). Her lawsuit arose out of the following undisputed facts.

Abercrombie’s husband Hal was involved in an automobile collision with a car driven by Jeffrey VanAlstine. In the car with him were passengers James Earl VanAlstine, Jr., and James Edward VanAlstine. After the collision an argument ensued and the vehicles proceeded down Roswell Road and onto 1-285, where shots were exchanged between the vehicles. In a related action, the court found that “[a]s a result of a shot intentionally fired by James Earl VanAlstine at Abercrombie, Abercrombie was mortally wounded and died. James Edward VanAlstine was wounded in the leg by a shot fired by Abercrombie.” The cause of Abercrombie’s death was the gunshot wound, and James Earl VanAlstine was convicted of felony murder.

Beverly Abercrombie filed a complaint for wrongful death against the three VanAlstines. She alleged that “as a result of the operation of the vehicle driven by defendant Jeffrey Lee VanAlstine and the interference by defendant James Edward and James Earl VanAlstine with the plaintiff’s operation of his vehicle, plaintiff lost control of his vehicle, crashed his vehicle, and was killed.” In a declaratory judgment action filed by the VanAlstines’ liability carrier, the court determined that no liability coverage was available for any of the VanAlstine defendants. The basis for noncoverage was the exclusion for intentional acts, not a finding that the incident did not arise out of the ownership or use of the vehicle.

In this tort action, Georgia Farm Bureau was awarded summary judgment on the ground that Abercrombie’s uninsured motorist coverage did not afford coverage because the incident did not arise from the operation, maintenance, or use of the uninsured motorist vehicle. Abercrombie contends that the incident is covered because the altercation arose out of the operation of the VanAlstine’s automobile, and that the entire matter originated from the use of automobiles. She cites Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (236 SE2d 550) (1977), and Ins. Co. of North America v. Dorris, 161 Ga. App. 46 (1) (288 SE2d 856) (1982).

The insurer by its policy agreed to pay all sums that Abercrombie is entitled to recover from the owner or driver of the uninsured vehicle for which the owner or driver is liable, to the extent that they “result from the ownership, maintenance, or use of the ‘uninsured motor vehicle.’ ” The initial collision, when the VanAlstine vehicle hit the decedent’s vehicle, occurred as a result of the use of the vehicle. The two verbal altercations which followed resulted from and related to that improper or unintended use.

As in Dorris, supra, the uninsured VanAlstines then used their vehicle in order to enable them to inflict the injury upon Abercrombie which killed him. Paraphrasing Dorris, “Had it not been for the ‘use’ of the [VanAlstine vehicle], the continuing assault would not have happened and, presumably, [Abercrombie] would not have been injured. As thus viewed, the liability of the [VanAlstines] for the injuries to [Abercrombie] ‘arose from’, ‘had its origins in’, ‘grew out of or ‘flowed from’ [the] utilization of [the VanAlstine] vehicle as a means to perpetrate an unwarranted assault upon [him].” Id. at 48. The uninsured vehicle in Dorris was being used in the same way as here, chasing the other vehicle so as to inflict injury on the driver. In both instances, the vehicles were being used to enable an occupant to shoot at the chased vehicle for the purpose of injuring its driver.

The fact that the ultimate injuries to the suing passengers in the Dorris case resulted when their vehicle overturned, rather than from the gunshots being fired from the chasing vehicle, does not preclude coverage in the latter instance; in fact, the vehicle’s use in this case is even more closely connected with the injury than the more remote reason for the Dorris passenger injuries. The vehicle in the Dorris case was not being used to cause the truck’s overturn, whereas the VanAlstine vehicle was being used to position the passenger close enough to shoot driver Abercrombie.

These circumstances brought the incident within the scope of the policy’s language. “ ‘Use’ while an admittedly elusive term, may be defined as ‘to employ for some purpose.’ [Cit.]” Rustin v. State Farm &c. Ins. Co., 254 Ga. 494, 495 (1) (330 SE2d 356) (1985). “This court has adopted a liberal definition of the word ‘use.’ ” Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 122 (329 SE2d 204) (1985).

In addition, the policy clause which is being construed in this case “is usually interpreted in a broad sense.” Southeastern Fidelity Ins. Co., supra at 563 (1). “[T]he term ‘arising out of’ does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. . . . [A]lmost any causal connection or relationship will do. . . .” Id. at 563-564. Although that case involved the personal injury protection coverage rather than the uninsured motorist coverage, the Dorris case illustrates that the term is identically construed. This slight causal connection is what reasonable men and women would understand the phrase “resulting from the use” of a vehicle to mean. It comports with the usual, natural and ordinary meaning of the terms.

As in Dorris, there is evidence that the shot was fired by an occupant of a vehicle in the course of a chase which had itself resulted from an incident arising out of the uninsured vehicle’s use. That was critical in Dorris, see page 47 (1), and is present here. The movement of the vehicle was integral to, and enabled, the assault. It was not merely incidental; it was inextricably linked. The vehicle was being used for transportation at the time of the shooting and the driving of it facilitated the attack.

For instructive cases in other jurisdictions, see State Farm &c. Ins. Co. v. Davis, 937 F2d 1415 (9th Cir. 1991) (the insured, a passenger in his own vehicle, told the driver to overtake and pass a car which had passed them, and when he did, the insured shot and injured the other car’s driver; this constituted “use” under the policy because it had more than a minimal causal connection with the incident); Continental Western Ins. Co. v. Klug, 415 NW2d 876 (Minn. 1987) (the auto was an “ ‘active accessory’ ”; there was no independent significant break in the causal link between “ ‘use’ ” and injury; the auto was being used for an intended purpose, i.e., transportation); Allstate Ins. Co. v. Gillespie, 455 S2d 617 (Fla. App. 1984).

Summary judgment to the insurer was not warranted.

Judgment reversed.

McMurray, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Birdsong, P. J., Andrews and Blackburn, JJ., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent. As the majority notes, the policy clearly provided that the injuries must arise from the ownership, maintenance or use of the vehicle. In this matter, the incident for which recovery is sought did not arise out of the operation, maintenance or use of the VanAlstine’s automobile and the superior court’s grant of summary judgment should be affirmed.

In Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (236 SE2d 550) (1977), the general rule set forth was that “where a connection appears between the ‘use’ of the vehicle and the discharge of the firearm and resulting injury such as to render it more likely that the one grew out of the other, it comes within the coverage defined.” Id. at 564. In Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830 (318 SE2d 670) (1984), the court stated that in order to find coverage, “[t]here must be more of a connection between the use of the vehicle and the discharge of the firearm and the resulting injury than mere presence in the vehicle when the injury was sustained.” Id. at 830-831.

Here, Abercrombie’s injury bore no apparent relation to the operation of the vehicle or to the use to which the vehicle was put. To allow uninsured motorist coverage because the initial accident between the parties occurred in a vehicle stretches the requisite connection too far. “The question is not whether the insured’s injury had some remote connection to the use of the automobile. . . Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700, 701 (347 SE2d 688) (1986) (summary judgment to insurer affirmed in action for personal injury protection benefits arising out of the shooting death during an armed robbery of taxi driver, while he was seated in his parked taxi). The applicable principles to the inquiry here have been set forth numerous times in contexts other than the uninsured motorist coverage. See, e.g., Rustin v. State Farm &c. Ins. Co., 254 Ga. 494 (330 SE2d 356) (1985); Washington v. Hartford Accident &c. Co., 161 Ga. App. 431 (1) (288 SE2d 343) (1982); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325) (1985); Davis v. Criterion Ins. Co., 179 Ga. App. 235, 236 (345 SE2d 913) (1986); King v. St. Paul Fire &c. Co., 201 Ga. App. 851 (412 SE2d 614) (1991); USAA Property &c. Co. v. Wilbur, 207 Ga. App. 57 (427 SE2d 49) (1993); compare Ga. Farm &c. Ins. Co. v. Burnett, 167 Ga. App. 480 (1) (306 SE2d 734) (1983).

Abercrombie’s death was not the result of an automobile accident, but was caused by a voluntary, deliberate, intervening act which was unforeseeable and which rendered the use of the vehicle incidental. “Similarly, in Washington[, supra], the court found no causal connection where a passenger on a school bus was attacked with a pistol because the injury resulted from a deliberate assault which took place in the vehicle simply because that is where the victim happened to be when the assailant came ‘gunning’ for him.” (Citations and punctuation omitted.) USAA Property &c. Co. v. Wilbur, supra at 59.

Decided March 10, 1995

Michael P. Froman, for appellant.

Downey & Cleveland, Joseph C. Parker, W. Curtis Anderson, for appellee.

In Ins. Co. of North America v. Dorris, 161 Ga. App. 46 (1) (288 SE2d 856) (1982), the case involving uninsured motorist benefits upon which the majority relies, the injuries resulted not from gunfire, but from an automobile accident. The injuries in Dorris were caused by the overturning of the truck. In the instant matter, there was no dispute that Abercrombie’s death was caused by the bullet wound. Thus, unlike the situation in Dorris, the fact that Abercrombie was shot in his car had no bearing on his death. The fact that the vehicle was the “mere situs” of the intentional gunshot exchange is not enough to warrant this coverage. See generally Colonial Ins. Co. of California v. Lumpkin, 207 Ga. App. 376 (428 SE2d 351) (1993).

I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this dissent.


author: Blackburn, Judge.

text:
    A95A0047.
    DEPARTMENT OF HUMAN RESOURCES v. HAMBRICK.
    (455 SE2d 120)
   Blackburn, Judge.

The appellant, the Department of Human Resources of the State of Georgia (DHR), acting in the interest of a minor child, initiated this contempt action against the appellee, Jessie Hambrick, to recover a child support arrearage of $8,023 due pursuant to a divorce decree. Hambrick filed an answer in which he, for the first time, denied paternity of the minor child and requested that the trial court order blood testing for the purpose of determining paternity. The trial court determined that Hambrick was in contempt for failure to honor his child support obligation, but simultaneously ordered blood testing for Hambrick. Thereafter, we granted DHR’s application for discretionary review, and DHR filed this appeal.

DHR enumerates that the trial court erred by ordering blood testing in that the issue of paternity was res judicata. We agree.

The parties were divorced in 1988. While the pleadings in the divorce action are not contained in the record herein, the final decree therein reflects a finding by the court that appellee is the minor child’s natural father. OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” See Dept. of Human Resources v. Fleeman, 263 Ga. 756, 758 (439 SE2d 474) (1994). There is no allegation of mistake or fraud as to the original finding of the court of the paternity of the child. The issue of paternity therefore was decided in the prior divorce action and cannot be relitigated herein. See Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984); see also Dept. of Human Resources v. Hurst, 208 Ga. App. 792, 793 (432 SE2d 236) (1993).

Decided March 10, 1995.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Kevin M. O’Connor, Assistant Attorneys General, for appellant.

Andrew J. Hill, Jr., Margaret N. Dyal, for appellee.

Accordingly, the order of the trial court is erroneous insofar as it directs blood testing to determine Hambrick’s paternity and to that extent it must be reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A95A0065.
    HARRIS et al. v. TATUM.
    (455 SE2d 124)
   Birdsong, Presiding Judge.

Appellants/defendants Dr. Sterling Harris and Dr. Wiley S. Black appeal from the verdict and judgment in favor of appellee/ plaintiff Mildred Tatum. Pursuant to advice of Dr. Black, appellee underwent a diagnostic procedure known as an angiogram which was performed by Dr. Harris. The same day with the concurrence of Dr. Black, Dr. Harris performed a balloon angioplasty on appellee; balloon angioplasty is an invasive surgical procedure in which a catheter is inserted into a large vein and a balloon is threaded to the blocked area and inflated thereby squeezing the plaque or blockage against the walls of the blood vessel and enlarging the blood flow path. During the course of the angioplasty, plaque from the treatment site was pushed or became lodged into lower blood vessels and/or blood clots formed occluding the blood flow to appellee’s left leg and right foot. This medical complication was not remedied timely, requiring the amputation of appellee’s right foot by a vascular surgeon. Appellee ultimately was fitted with a prosthesis.

Appellee brought a damage suit for medical malpractice and battery. Appellants filed a motion for partial summary judgment as to the issue of informed consent; the motion was denied. Following transfer of the case to another county, appellants filed a motion in limine to exclude any evidence or mention of general consent or of a violation of the informed consent statute; the motion was denied. At the conclusion of the evidence appellants moved for a directed verdict on the issue of consent. The trial court granted appellants’ directed verdict as to the issue of informed consent but denied the motion as to the general consent issue. The jury returned a $500,000 verdict in favor of appellee/plaintiff but failed to specify whether it was rendered against one or both appellants. After being recharged, the jury returned a second verdict in favor of appellee and separately against each appellant in the amount of $250,000. The jury was again recharged and returned a verdict in favor of appellee and against both appellants in the amount of $500,000. The jurors were polled and confirmed their verdict; judgment reflecting the final verdict was entered. Held:

1. Appellants enumerate that the trial court erred in denying their motion in limine on the issues of consent, in denying their motion for directed verdict on the issue of general consent, and in charging the jury on the issue of battery. In support of these claims appellants assert, inter alia, that adequate general consent existed as a matter of law.

(a) By granting appellants’ motion for directed verdict as to the issue of informed consent, the trial court rendered moot any claim of error in denying its motion in limine as to this issue. To be entitled to judgment reversal, appellants must affirmatively establish, by the record, error which has hurt them. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). Appellants have failed to establish that any fair risk exists that the jury’s subsequent verdict in favor of plaintiff was contributed to by the denial of their motion in limine as to informed consent.

(b) “[A]ny unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery would amount to a battery.” Mims v. Boland, 110 Ga. App. 477, 482 (138 SE2d 902). But, “ ‘[a]s a general rule there can be no tort committed against a person consenting thereto, if that consent is free and not obtained by fraud, and is the action of a sound mind.’ ” Id. at 482 (1) (a). Appellants claim that by signing a written consent, which by its plain wording authorized appellants to perform whatever additional medical procedures they deemed warranted, a valid and binding general consent must be conclusively presumed thereby entitling appellants to a directed verdict on the issue of general consent and precluding the existence of a battery as a matter of law.

As to general consent, OCGA § 31-9-6 (d) provides: “A consent to surgical or medical treatment which discloses in general terms the treatment or course of treatment in connection with which it is given and which is duly evidenced in writing and signed by the patient or other person or persons authorized to consent pursuant to the terms of this chapter shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.” A valid general consent negated any claim of battery in Hutcheson v. McGoogan, 162 Ga. App. 657 (292 SE2d 527) and Winfrey v. C & S Nat. Bank, 149 Ga. App. 488 (254 SE2d 725). Compare Cole v. Jordan, 161 Ga. App. 409 (288 SE2d 260).

Appellee/plaintiff signed a written consent which, although not expressly consenting to angioplasty, contains, inter alia, the following: “I understand that during the course of the procedure described above [angiogram/aortogram/run off] it may be necessary or appropriate to perform additional procedures which are unforeseen or not known to be needed at the time this consent is given. I consent to and authorize the persons described herein to make the decisions concerning such procedures. I also consent to and authorize the performance of such additional procedures as they deem necessary and appropriate.” (Emphasis supplied.) This language is ambiguous as to whether consent is given only to those additional procedures as are both necessary and appropriate, or as to additional procedures which are either necessary or appropriate, and, whether if two different classes of additional procedures exist, within which class balloon angioplasty is included. As the consent form reflects that it is that of the Radiology Department of Lanier Park Hospital, and as there generally exists an inequality of bargaining position as between a medical patient and an admitting hospital or physician, any ambiguity in the consent document should be construed as against appellants. Accordingly, the scope of consent contained in this general provision must be construed as encompassing only those additional procedures which were both necessary and appropriate when rendered. See Zurich American Ins. Co. v. Bruce, 193 Ga. App. 804, 807 (2) (388 SE2d 923); cf. Law v. Cheek-Law, 258 Ga. 190 (366 SE2d 680); Hall v. Skate Escape, 171 Ga. App. 178, 180 (319 SE2d 67). The word “necessary” shall be attributed only its usual and common signification (see OCGA § 13-2-2 (2)), to-wit: “being essential, indispensable, or requisite.” Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989).

The standards for directed verdict and judgment n.o.v. are the same; where there exists no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554). The evidence in this case is in conflict as to the material issue of whether balloon angioplasty was a “necessary” medical procedure. Accordingly, the trial court did not err in denying appellants’ motion in limine and motion for directed verdict, or in instructing the jury as to battery. We will not reverse the correct ruling of a trial court regardless of the reason given therefor. Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344).

Hutcheson, supra, Cole, supra at 409 (3) (Division 3 physical precedent only), and Winfrey, supra, none of which involve a consent form requiring additional procedures to be both appropriate and necessary, are not controlling. Likewise, Johnson v. Srivastava, 199 Ga. App. 696 (405 SE2d 725), while instructive, is not controlling.

(c) Appellants, however, contend that appellee was advised of the possibility of angioplasty by nurses in appellant Dr. Black’s office, and that such knowledge, from whatever source acquired, is sufficient to establish appellee’s consent as a matter of law. Appellants’ reliance on Parr v. Palmyra Park Hosp., 139 Ga. App. 457, 460 (228 SE2d 596) is misplaced. Parr, supra, holds that where the consent form is inadequate to explain the general course of treatment to be taken, or where there is no written consent, summary judgment could still be obtained by establishing that the plaintiff-patient knew, from any source, the general course of treatment to be undertaken. However, the real issue in the case at bar is not whether the general course of treatment was adequately explained as to the type or types of procedure to be used, but whether the record establishes as a matter of law that balloon angioplasty was “necessary,” as required by the terms of the ambiguous consent provisions pertaining to additional procedures. Assuming arguendo appellee knew of the possibility that angioplasty was one of the additional procedures to which she might be subjected, provided necessity so demanded, a genuine issue of material fact remained whether such “necessity” existed as required by the consent form executed by appellee. Even if appellee may have known in general terms the course of treatment which might occur in accordance with the terms specified in the consent form, it cannot be concluded on the posture of this record that she understood additional procedures ever would be undertaken in the absence of an existing necessity therefor. Holbrook v. Schatten, 165 Ga. App. 217 (299 SE2d 128), where the record clearly established that the patient knew and understood from her conversations with her physician the general course of treatment to be undertaken, is not controlling.

Moreover, in Parr, supra, and Holbrook, supra, the issue was not whether plaintiff consented to the treatment undertaken but whether plaintiff had been properly informed of the risk of treatment. See Johnson, supra at 698.

2. Citing, inter alia, Brannen v. Prince, 204 Ga. App. 866 (4) (421 SE2d 76) (physical precedent only), appellants contend the trial court erred in admitting hearsay, during cross-examination of appellants’ medical expert, from a professional journal not shown to be authoritative.

The expert conceded his knowledge of the Journal of Post-Graduate Medicine by testifying that he recognized it as being “good for medical students.” It can be reasonably inferred from this testimony that the journal was a good student text (compare Brannen, supra at 874 (special concurrence)). Unless the journal was considered authoritative, within the meaning of Brannen, supra and Pound v. Medney, 176 Ga. App. 756 (337 SE2d 772), it could not be deemed a text that would be good for medical students. Brannen, supra at 874. However, assuming arguendo that appellee failed to lay an adequate foundation for the cross-examination of appellants’ expert as to the statement contained in the journal, we find such error harmless. The question at issue posited that of all patients with intermittent claudication, 75 percent show either improvement or stabilization of condition without invasive treatment. Appellants’ expert characterized the statement as being too broad and gave medical examples to support his opinion. Further, appellee’s expert previously had testified without objection that 80 percent of patients who have only claudication will not suffer serious complications, and their disease will remain stable over the course of their life. As substantially the same evidence was already before the jury without objection, any hearsay as to this matter would be merely cumulative and harmless. Calhoun v. State, 213 Ga. App. 375, 376 (2) (444 SE2d 405); Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 709-710 (1) (c) (423 SE2d 387); OCGA § 9-11-61.

3. Appellants concede that the first two verdicts were improper and that the trial court properly rejected them and recharged the jury; however, without citation of authority, they contend the trial court erred in its recharge as to the form of the verdict following the second improper verdict. The trial court can refuse to receive an improper verdict and recharge the jury in a manner which would facilitate putting the verdict in proper form. Ga. American Ins. Co. v. Mills, 187 Ga. App. 128, 131 (5) (369 SE2d 768). But appellants contend the trial court in its challenged recharge in effect adopted the prior improper verdict of the jury that appellants were joint tortfeasors. Examining the recharge in its totality and in light of all previous charges (Taylor v. State, 195 Ga. App. 314 (1) (393 SE2d 690)), we find the trial court did not adopt any portion of the prior improper verdicts; we find no indication the court erroneously assumed certain facts and intimated to the jury what it believed the evidence to be. Cf. Turner v. State, 259 Ga. 873 (2) (388 SE2d 857).

Appellants assert that the trial court’s previous recharge on battery would cause the jury to equate the acts of the doctor to those of a bully. Viewing the charge in its totality and in context with the other charges (Taylor, supra), we find this contention without merit.

Decided March 10, 1995.

Forrester & Brim, Weymon H. Forrester, Richard C. Bellows, for appellants.

Cook, Noell, Tolley & Wiggins, J. Vincent Cook, for appellee.

Appellants’ various contentions in support of their enumerations of error are without merit.

Judgment affirmed.

Johnson and Blackburn, JJ., concur. Smith, J., not participating. .


text:
    A95A0116.
    TROTTER v. THE STATE.
    (455 SE2d 121)
   Blackburn, Judge.

Following a trial by jury on one count of aggravated assault and a second count of felony obstruction, the appellant, Alvin E. Trotter, was found guilty of misdemeanor obstruction, a lesser included offense of the latter count. Trotter was sentenced to confinement for twelve months, and, upon the service of six months, the remainder of his sentence was to be served on probation. The trial court denied his motion for new trial, and he now appeals.

On September 27, 1992, Trotter and Marilyn Esteves were drinking beer at an Atlanta bar known as Connie’s Corner. While there, Trotter entered into a conversation with Ricky Brown, another bar patron, during which he asked if Brown was interested in buying beer from him, indicating that he had the beer in his car. Brown expressed interest but needed change to make the purchase. As a result, Brown asked that everyone meet him in the parking lot of his apartment complex next door. There an argument and fight ensued between Trotter and Brown. Esteves testified that the fight had occurred because Brown wanted “more” than beer and Trotter refused to provide it.

Trotter and Esteves left the parking lot after Trotter was asked to leave by the apartment complex’s security officer, Priscilla Stewart, an off-duty police officer, and Rick Turner, another off-duty police officer then visiting Stewart. Trotter returned to the apartment complex minutes later to confirm that Stewart and Turner were police officers but was successful in talking only with Turner. As Turner was showing Trotter his identification, Turner noticed a bulge under the waistband of Trotter’s trousers. Turner reached for what he thought was a weapon on Trotter’s person, and, as he did so, Trotter ran to the cover of the adjacent apartment buildings with Turner in pursuit. Turner testified that when he next saw Trotter, Trotter held a gun and pointed it at him. Fearing for his safety, Turner fired at Trotter four times, ceasing fire when he noticed that Esteves was exiting Trotter’s vehicle as Trotter managed to get in and drive off. Later that evening, Officer Dennis Wilson arrested Trotter at the home of Trotter’s sister. Trotter directed Wilson to a handgun in the glove compartment of his car.

At trial, the State called Wilson as its first witness in rebuttal. After Wilson testified that Turner had briefed him as to what had occurred earlier in the evening, the State asked what he had been told. In response, Wilson stated that “he advised me that he was off-duty and in the apartment complex when he was approached by Mr. Trotter, I believe as I recall Mr. Trotter attempted to buy or sell drugs to Mr. Turner.” Thereafter, the trial court overruled the defense counsel’s objection to Wilson’s testimony based on the ground that Wilson had improperly put Trotter’s character in issue. The trial court denied the motion and ordered defense counsel to proceed.

1. Trotter enumerates that the trial court erred by denying his motion for mistrial in that Wilson’s testimony, as above, improperly placed his character in issue. In particular, Trotter argues that Wilson’s testimony was inadmissible as hearsay and because he had not first opened the door to its introduction. We disagree.

Initially, we conclude that Wilson’s testimony was not inadmissible as hearsay. “Testimony is considered hearsay only if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of the statement. Otherwise it is a verbal act and thus original evidence rather than hearsay.” (Citations and punctuation omitted.) Thurman v. State, 207 Ga. App. 96, 99 (427 SE2d 69) (1993). In the instant circumstances, Wilson was asked what Turner told him occurred earlier in the evening. Wilson did no more than recount his recollection of the briefing he received from Turner in response. Trotter did not pursue the issue on cross-examination and cannot now complain of an apparent inability to show that the answer was not honest.

We likewise are unpersuaded that Wilson’s testimony wrongly placed Trotter’s character in issue. In this regard, Esteves repeatedly testified that Trotter did not “deal” more than beer, in effect, indicating that Trotter neither had nor desired any involvement with drugs. “Evidence regarding the character of a defendant is generally inadmissible unless the defendant puts his character in issue.” (Emphasis supplied.) Henderson v. State, 204 Ga. App. 884, 886 (420 SE2d 813) (1992). In view of defense witness Esteves’s testimony concerning the defendant’s not dealing in drugs, Wilson’s recitation of what he had been told does not improperly place defendant’s character in issue under the facts of this case.

In light of the foregoing, we deem this enumeration of error to be without merit.

2. Trotter further enumerates that the trial court erred by refusing to conduct an in-camera inspection of Turner’s internal affairs and personnel police files.

Prior to the enactment of the Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq., effective January 1, 1995, and not herein applicable, “[t]here [was] no Georgia statute or rule of practice which allow [ed] discovery in criminal cases, nor is the accused entitled as matter of right to receive copies of police reports and investigation reports made in the course of preparing the case against the defendant. There is no constitutional requirement that the prosecution make a completed detailed accounting to the defense of all police investigatory work on a case.” (Citations and punctuation omitted.) Broom v. State, 209 Ga. App. 42, 43 (432 SE2d 823) (1993).

In the instant case, Trotter asserted only that the police file he subpoenaed was relevant and necessary “to show that this officer has been involved in similar incidents of shooting at unarmed suspects, to show whether this officer has a tendency to pull his weapon without cause, and to show whether this officer was following his training when he shot at a car which had a civilian as a passenger who had nothing to do with the incident.” However, he made no showing of relevance or materiality in support of his request for the subpoenaed file or the in-camera inspection. Turner was cleared of any wrongdoing in the incident by the police internal affairs investigation conducted as a result of it, and, on appeal, Trotter does not enumerate that the trial court erred by granting the Atlanta police department’s motion to quash the subject subpoena. As a consequence, the trial court properly refused to conduct the in-camera inspection as neither relevant nor material.

3. In his last enumeration of error, Trotter contends that the trial court erred by refusing to give Defense Request to Charge No. 35.

Defense Request to Charge No. 35 provided that “[j]uries perform their duties to society as truly in the vindication and acquittal of one who is innocent as in the conviction of one who is guilty.” The trial court otherwise instructed the jury regarding its duty to acquit upon a reasonable doubt as to Trotter’s guilt. While the charge given was not given in the exact language Trotter requested, Trotter’s request was presented to the jury in substance.

“It is not necessary that the jury be given the exact language requested where the same principles fairly are given to the jury in the general charge. [Cits.]” Pratt v. State, 180 Ga. App. 389, 391 (348 SE2d 922) (1986). Moreover, a requested charge need not be given unless it correctly and fully articulates a governing principle of law not otherwise included in the general instructions of the court. Id. The trial court’s jury charge as to acquittal was here proper. Accordingly, we find this enumeration of error to be without merit.

Decided March 10, 1995.

Sarina J. Woods, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Leonora Grant, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A0145.
    HIGGINS v. CSX TRANSPORTATION, INC.
    (455 SE2d 129)
   Birdsong, Presiding Judge.

Appellant/plaintiff James Steven Higgins brought suit against appellee/defendant CSX Transportation, Inc., under the Federal Employers’ Liability Act (FELA) (45 USCA § 51 et seq.). The jury found that both plaintiff and defendant were negligent, and that 50 percent of plaintiff’s injuries were contributed to by his own negligence. The trial court entered judgment reducing the amount of damages awarded appellant/plaintiff by 50 percent. Appellant appeals the order of the superior court denying his new trial motion.

The trial court charged the jury as to contributory negligence and that appellee/defendant had the burden of proof thereof, and also charged in essence that assumption of risk is no defense in an FELA case. Appellant enumerates that the trial court erred by charging the jury as to contributory negligence, as this charge is not supported by any evidence of record. Appellant argues: (a) the record fails to contain “any evidence” of contributory negligence as required by Wilson v. Burlington Northern, 670 F2d 780, 782 (8th Cir.); and (b) any conduct on the part of appellant constituted, at best, an assumption of the risk, which is not a defense under FELA pursuant to 45 USCA § 54. Held:

Appellant, a signal maintainer, was injured in the dark of the evening when trying to remove a tree that was obstructing certain CSX communications lines. A live tree, which had not been growing on CSX property, had been blown over and was wedged between the “V”-shaped or forked branch of a dead tree located on CSX property. The toppled tree was discovered by Jesse Montgomery, a signal maintainer. As Mr. Montgomery’s chain saw was not operational, he called appellant requesting additional assistance; appellant went to the scene to assist. After both men attempted without avail to remove the obstruction, first by pruning the toppled tree’s limbs and then by trying to cut the base of the toppled tree, the men decided to cut down the supporting dead tree. Mr. Montgomery held a six-volt hand lantern. Visually aided by the light of Montgomery’s lantern, appellant positioned himself beneath the dead tree and was attempting to cut it when its limb broke; the toppled tree fell “straight down,” striking and injuring appellant. Mr. Montgomery testified that in his opinion the workplace was not safe that night; and that any time you are working with a chain saw or a tree it is dangerous. While Mr. Montgomery testified that it was a rule of thumb when you have trouble to fix it and not to wait for assistance or otherwise, he conceded that if you thought the trouble could not be eradicated safely the rule would have been not to do it. Appellant testified that Mr. Montgomery and he made the decision to saw the dead tree, because “we didn’t know what else to do at that time, any other way to get the trouble clear. We had to get the tree out so that was our wild idea, I guess.” To accomplish this purpose appellant got down on one knee, under the dead tree, and commenced to notch the dead tree’s trunk; he stopped the saw and checked the tree. Appellant then squatted at the base of the dead tree and began to cut further when the dead tree’s limb broke and the toppled tree fell straight down and struck him.

Rivera v. Farrell Lines, 474 F2d 255 (2d Cir.) and Birchem v. Burlington Northern R. Co., 812 F2d 1047 (8th Cir.) are factually distinguishable.

“The evidentiary burden of proving contributory negligence in an FELA case is on the employer raising the issue, and the defendant/employer is entitled to a jury instruction on contributory negligence if there is any evidence to support that theory. If there is evidence from which the jury could reasonably conclude that the plaintiff/employee did not exercise due care, an instruction is warranted. The admissibility of evidence in an FELA case is ordinarily left to the trial judge, whose decisions will not be reversed absent an abuse of discretion. All evidence concerning the negligence of both parties is relevant to the determination of contributory negligence under the FELA.” (Citations omitted.) Hickox v. Seaboard Sys. R., 183 Ga. App. 330, 331 (358 SE2d 889). Moreover, circumstantial evidence can be used to raise the issue of contributory negligence. Id. at 332. “ ‘[T]he FELA cases that allow plaintiffs to reach the jury on a very slim showing of negligence permit defendants to go to the jury on the issue of plaintiff’s negligence with equally slim showings.’ ” Id.; accord Monroe v. Southern R. Co., 210 Ga. App. 597, 598 (1) (436 SE2d 568). “An employee has a duty to exercise reasonable and ordinary care for his own safety”; however, assumption of the risk “is not a defense” to an FELA claim. Id. at 598 (1) and 599 (3). Further, on appeal, this court must construe the evidence most strongly to support the verdict and judgment, and every reasonable presumption and inference must be in favor thereof; if there is any evidence to support the verdict we will uphold the resulting judgment. In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (388 SE2d 903); Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696).

“At common law an employee’s voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk. [Cit.] Contributory negligence, in contrast, is a careless act or omission on the plaintiff’s part tending to add new dangers to conditions that the employer negligently created or permitted to exist. . . . Where an act of alleged contributory negligence is but the practical counterpart of assumption of risk, it does not constitute [an FELA] defense.” Taylor v. Burlington Northern R. Co., 787 F2d 1309, 1316 (9th Cir.).

Generally the defenses of assumption of the risk and contributory negligence are not interchangeable. Id. However, “[i]t is often difficult to decide whether a particular fact situation is classifiable solely as assumption of risk, solely as contributory negligence, or as some mixture of the two. ‘(T)he defenses . . . overlap, and are as intersecting circles, with a considerable area in common, where neither excludes the possibility of the other.’ ” Dixon v. Penn. Central Co., 481 F2d 833, 835 (6th Cir.). The case at bar appears to present such an overlapping. The workplace encountered that night was dangerous; however, there exists some evidence of overlapping contributory negligence — negligence that was substantially beyond the pale of constituting the mere practical counterpart of assumption of the risk. By electing to position himself directly under the primary source of peril, appellant engaged in a voluntary act which added a new danger or a substantially increased dimension of danger to the (employer permitted) conditions of the work area. In fact, a jury could conclude that appellant subjected himself to risk of extraordinary scope.

Also, there exists some evidence that appellant received orders of a general nature. He was given a chain saw and told “from now on when we have line trouble you go cut it.” Also CSX did not give appellant any specific directions as how to perform the job of cutting trees and other obstacles to clear communication lines; rather appellant’s supervisor (having no practical experience himself), “just left it up to [the signal maintainers] to do the best we could.” “[W]hen an employee carries out a direct order, even if he has reason to know the order exposes him to danger, he is not contributorily negligent; rather, his conduct falls under the [FELA-abolished] doctrine of assumption of risk.” Jenkins v. Union Pacific R. Co., 22 F3d 206, 211 (9th Cir.). However, “when an employee carries out his supervisor’s general order in an unsafe manner, he is responsible under FELA for his own contributory negligence.” Id. There exists at least some evidence that appellant carried out the general orders of his supervisor in an unsafe manner, and therefore the contributory negligence instruction was not erroneously charged. Id.; see Gish v. CSX Transp., 890 F2d 989 (7th Cir.). An appellate court will not reverse the correct decision of the trial court regardless of the reason, if any, given therefor. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

Decided March 10, 1995.

Jones & Granger, Harry B. Bailey III, for appellant.

Casey, Gilson & Williams, James E. Gilson, for appellee.

For each of the above reasons, we conclude the trial court did not err as enumerated.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A94A2531.
    HILLIARD v. THE STATE.
    (455 SE2d 82)
   McMurray, Presiding Judge.

Defendant entered a plea of guilty to driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and (4) and following another automobile too closely in violation of OCGA § 40-6-49 (a), reserving the right to challenge on appeal the trial court’s denial of his motion to exclude results of the State administered breath test. See Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991). This appeal is properly before this court for review since defendant’s plea of guilty was entered within 30 days of official publication (July 9, 1994) of this court’s decision in Hooten v. State, 212 Ga. App. 770 (1), 775 (442 SE2d 836). Held:

In his sole enumeration, defendant contends “[t]he trial court erred in denying [his] motion in limine to exclude results of a breath test where implied consent warnings were read to more than one individual at the same time.”

Defendant was involved in a multi-car collision and was placed under arrest, along with the driver of another wrecked vehicle, for suspected drunk driving. Although the arresting officer testified that he simultaneously advised defendant and the other drunk driving suspect under Georgia’s Implied Consent law (OCGA § 40-5-55 (a)) while defendant and the other suspect sat in the rear of his patrol car, the arresting officer also testified that he “independently” advised both suspects of their implied consent options before subjecting them to a State administered breath test. It thus appears that defendant’s sole enumeration of error is unsupported by the record.

Decided February 28, 1995

Reconsideration denied March 13, 1995

Calhoun & Associates, Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Leonard M. Geldon, David T. Lock, Assistant District Attorneys, for appellee.

The trial court did not err in failing to suppress the results of the State administered breath test.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A94A2020.
    PONDEROSA COLLECTIONS, INC. v. FRADY et al.
    (455 SE2d 346)
   Ruffin, Judge.

We granted this application for discretionary review filed by Ponderosa Collections, Inc. (“Ponderosa”) from the superior court’s affirmance of an award entered by the State Board of Workers’ Compensation.

Ponderosa obtained workers’ compensation insurance from Aetna Casualty & Surety Company (“Aetna”) for the period of November 28, 1989 to November 28, 1990. Prior to the policy’s expiration, Aetna sent a renewal notice to Ponderosa. Ponderosa paid the first installment, and the policy was renewed for the period of November 28, 1990 to November 28, 1991. On September 9, 1991, Aetna sent notice to Ponderosa that the current policy would expire on November 28, 1991, and that if the total estimated premium was received by November 28, 1991, the coverage would remain in effect. Ponderosa, denying receipt of the notice, did not make the payment, and on December 4, 1991, Aetna notified the National Conference on Compensation Insurance that effective November 28, 1991, the policy was not renewed. On March 16, 1992, Ponderosa employee Wanda Frady sustained a work-related injury for which Aetna denied coverage. Finding coverage did not exist at the time of the injury, the ALJ issued an award dismissing Aetna as a party to the claim. The full board adopted the ALJ’s award and the superior court affirmed.

1. Ponderosa asserts the ALJ, full board and superior court erred by failing to acknowledge that it was deceived by Aetna concerning coverage renewal and was led to believe it had coverage on the date of Frady’s injury. On one occasion relied on in support of this argument, Aetna notified Ponderosa it had cancelled the policy because Ponderosa failed to pay an audit premium, then reinstated coverage one week later when arrangements to pay the premium were made.

Relying on Travelers Ins. Co. v. Adkins, 200 Ga. App. 278 (4) (407 SE2d 775) (1991), Ponderosa apparently argues that Aetna’s failure to cancel the policy as originally noticed, resulted in a mutual departure by the parties from the terms of the policy such that Aetna could not insist on payment of the renewal premium within the time demanded. In Travelers, this court applied the “any evidence” standard and found that evidence that the insurer cancelled the policies in question on three separate occasions for non-payment of premiums, then reinstated the policies when the premiums were paid, was sufficient to support the board’s finding that there was a mutual departure by the parties from the terms of the policy. Id. at 282.

In the context of this case, the issue of whether there was such a mutual and intended departure so as to make a new agreement was for the full board to decide. Id. If there is any evidence to support the full board’s determination that the terms of the written policy are controlling, then that determination is conclusive and binding. Id. The record shows that when Aetna renewed Ponderosa’s policy in the past, it received payment of the renewal premium within the time demanded. Furthermore, with the exception of the single instance in which Aetna cancelled for failure to pay the audit premium, it always demanded and received payment in a timely manner. This is some evidence that the parties did not intend to depart from the terms of the written policy.

In further support of its argument, Ponderosa contends that throughout its coverage, the parties engaged in a pattern of conduct in which it was warned and reminded of significant dates under the policy, such as premium due dates; that it justifiably relied on such warnings; and that the failure to warn of the non-renewal was a wrongful departure from that pattern. Ponderosa argues that since nobody contacted them to remind them the renewal payment was due, they were deceived into believing there was no problem with the policy. Ponderosa does not cite and we are aware of no authority that supports the argument that an insurer is obligated to remind an insured that renewal premiums are due.

Finally, Ponderosa argues that because it received a letter in January 1992 containing the salutation “Dear Policyholder,” it reasonably believed it still had coverage. The letter was a request to pay the final audit premium for the previous year’s policy and was attached to a copy of that policy. This is some evidence upon which the full board could rely in rejecting Ponderosa’s argument that it was deceived by the letter. Id. Accordingly, we find no error.

2. In three separate enumerations of error, Ponderosa asserts the ALJ, board and superior court erred in ruling that Aetna was not required to provide it with notice of policy “termination.” While Ponderosa generally argues such notice should be required as a matter of public policy, the only authority relied on is OCGA § 33-24-44, which generally requires an insurer to provide written notice to the insured prior to cancelling a policy. “Inasmuch as the expiration or lapse of a policy does not constitute a cancellation, OCGA § 33-24-44 is inapplicable. . . .” Goodley v. Fireman’s Fund American Life Ins. Co., 173 Ga. App. 277, 278 (1) (326 SE2d 7) (1985). In this case it is uncontroverted that the policy was not cancelled but expired at the end of the term, and no payment was made to renew the policy. Under these circumstances we find the expiration did not constitute a termination requiring notice. See id. Accordingly, these enumerations are without merit.

Decided March 13, 1995.

Horace E. Campbell, Jr., for appellant.

Winslow H. Verdery, Jr., Shivers, Johnson & Wilson, Jerome J. Stenger, Terry R. Drugan, for appellees.

3. Finally, Ponderosa argues that since the board based its award on erroneous conclusions, the superior court erred by failing to reverse the award. “If a finding of fact by the Board is supported by any evidence, it is conclusive and binding upon the superior court and this court. [Cit.] There is more than ample evidence to support the award.” Atlanta Hilton &c. v. Gaither, 210 Ga. App. 343, 347 (2) (436 SE2d 71) (1993).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.