author: Smith, Judge. Beasley, Judge,

text:
    A97A1675.
    GEORGIA MUTUAL INSURANCE COMPANY v. GLENNVILLE BANK & TRUST COMPANY.
    (494 SE2d 103)
   Smith, Judge.

This appeal presents a question concerning whether a mortgagee may recover the proceeds of a fire insurance contract covering the mortgaged premises. The policy provided that “the action [must be] started within one year after the date of loss.” In this case, the insured mortgagor filed an action against the insurer to recover the proceeds within one year after the loss. The mortgagee did not file a separate action, but intervened in the mortgagor’s action after the expiration of the one-year period. We conclude that under these circumstances the mortgagee may recover, and we affirm the decision of the trial court.

The record shows that the home of Doyle and Sherry Moody was destroyed by fire on January 26, 1994. The property was covered for fire loss under an insurance contract issued by Georgia Mutual Insurance Company, which listed Glennville Bank & Trust Company in the declarations as the mortgagee. The policy contained two relevant provisions in its “Conditions” segment. Paragraph 8 (“Suit Against Us”) provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” Paragraph 12 (“Mortgage Clause”) provided in pertinent part that “[pjolicy conditions relating to appraisal, suit against us and loss payment apply to the mortgagee.”

In July 1994, the insurer notified the bank that it was denying coverage under the policy. On January 11, 1995, the bank sent the insurer a demand letter, informing it that suit would be filed within two weeks of receipt unless payment was made. On January 17, 1995, the Moodys filed an action against the insurer seeking recovery of the policy proceeds. On January 30, 1995, the bank sent the insurer another letter confirming a prior telephone conversation in which the bank had agreed, at the insurer’s request, to extend the time for a response to the demand letter because the insurer’s claims manager was out of the country. The letter confirmed that the bank had agreed to extend the response period until February 9, 1995, and that it would not file suit until then. The one-year period after the Moodys’ loss expired on January 25, 1995. On March 20, 1995, the bank filed a motion to intervene in the Moodys’ action, which was granted on April 4, 1995. The insurer’s subsequent motion for summary judgment as to the bank’s claim was denied. The bank then filed its motion for summary judgment against the insurer. The Moodys later dismissed their complaint against the insurer. The trial court granted the bank’s motion for summary judgment, and the insurer appeals.

The insurer contends the trial court erred in granting summary judgment in favor of the bank because the bank did not file suit on its claim within one year of the date of the loss, as required by the policy. The insurer argues that this contractual limitation has been held to be valid and enforceable. Suntrust Mtg. v. Ga. Farm Bureau Mut. Ins. Co., 203 Ga. App. 40 (416 SE2d 322) (1992). We do not agree with this contention.

Although such provisions are certainly valid and enforceable, the facts in this case are distinguished from those in Suntrust Mtg. in several ways. First, in Suntrust Mtg. no evidence existed of any conduct on the part of the insurer that would lead the mortgagee into believing the contractual limitation period would not apply. Id. at 42. In contrast, shortly before the expiration of the contractual limitation period here, Georgia Mutual actually requested, for its own benefit, that the bank delay taking legal action. This conduct certainly could be expected to lead the bank to believe that the insurer intended at least to enlarge the contractual limitation period. Compare Modern Carpet Indus. v. Factory Ins. Assn., 125 Ga. App. 150, 151 (186 SE2d 586) (1971).

Second, in Suntrust Mtg., no “action” at all was filed within the required time period, and no intervention was involved. In a well-reasoned order, the trial court concluded that this case is distinguished from Suntrust Mtg. for precisely that reason. The policy provision requiring that “the action” be brought within one year from the date of loss does not specify the identity of the party required to bring “the action.” Notwithstanding the language in the “mortgage clause” making this time limitation applicable to the mortgagee, the policy provision does not state that the mortgagee’s claim is barred unless the mortgagee files suit within one year of the loss. It is silent as to the pivotal question of whether the mortgagee is required to bring a separate, second action even if “the action” of the insured was timely filed and is pending. The provision is therefore susceptible of two meanings.

The trial court analogized this limitation on the right to enforce the policy terms “to an exclusion from coverage, in that it effectively eliminates rights which are granted elsewhere in the policy.” “Contracts of insurance are to be construed strictly against the insurer and in favor of the insured when language contained therein is susceptible to two or more constructions. Where the insurer grants coverage to an insured, it must define any exclusions in its policy clearly and distinctly. [Cits.]” American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 586 (373 SE2d 652) (1988). With this principle in mind, the trial court concluded that since the provision in issue was ambiguous, it must be construed in favor of the insured, in this case the bank, and that the bank could recover on the policy because an action had, indeed, been filed within the contractual limitation period. We agree with the trial court’s reasoning.

We also agree with the trial court’s conclusion that the legitimate purpose of such contractual limitation periods is not thwarted by permitting the bank to intervene after the one-year period. Such contractual limitation provisions serve to eliminate the insurer’s possible protracted exposure to suit. Absent such provisions, that exposure. would extend throughout the statutory limitation period, for six years after losses. OCGA § 9-3-24. The public interest is served by permitting the insurer to limit the time of its exposure. Because the insurer’s reserves must be sufficient to meet the possible losses, a shorter period of exposure results in lower premiums for insureds. At the same time, the rights of insureds are not impaired, because a one-year limitation is reasonable. Brown v. Savannah Mut. Ins. Co., 24 Ga. 97, 101-102 (2) (1858) (condition requiring that suit be brought within six months held reasonable).

In this case, the possibility of exposure to liability became a certainty when the Moodys filed suit; this was not changed by allowing the mortgagee to intervene in the pending action even after the one-year period. The trial court did not err in granting summary judgment in favor of the bank.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the opinion except for the first reason given for the correctness of summary judgment on the issue of timeliness. There would be a question of fact whether the parties contemplated an extension of up to February 9 or beyond it, and if beyond that date, then for how long, for the bank to take legal action. The only evidence of record of this extension is the bank’s letter to the insurer confirming a telephone conversation. It states that counsel “will not file suit before that date. On the other hand, if we have not resolved the matter satisfactorily by that date my client insists that we begin the appropriate legal actions.” Intervention was not undertaken until March 20.

It is unnecessary to determine whether the extension constituted a waiver of the one-year contract provision and, if so, the length of the waiver, because of the other solid basis for the partial summary judgment granted.

The trial court wisely laid the foundation of the summary judgment on the timing of the filing of “suit against us,” in the words of the contract, and ruled that “if an action is filed, any party with a contractual right to share in the proceeds of the policy may intervene in that action, even if their intervention occurs more than a year after the loss.” As the trial court recognized, it is just a matter of who is entitled to the proceeds of the policy, not whether there is coverage or what amount of coverage is due. Allowing intervention for the purpose of payment does not jeopardize the insurer’s interests in limiting exposure to suit to less than the six-year statute of limitation for contract actions.

Decided November 17, 1997.

Brennan, Harris & Rominger, Mason White, for appellant.

Hugh J. McCullough, for appellee.


source: Caselaw Access Project

author: Ruffin, Judge. Eldridge, Judge,

license: Public Domain

text:
    A97A1790.
    POOLE v. THE STATE.
    (494 SE2d 251)
   Ruffin, Judge.

Randolph Poole, Jr. was charged by accusation of, inter alia, violation of the City of LaGrange public drunk ordinance. Following a non-jury trial in the State Court of Troup County, the court convicted Poole of the offense. Poole appeals, challenging the sufficiency of the evidence on the ground that the State failed to introduce into evidence a copy of the municipal ordinance. Because we find that the State failed to properly prove the existence of the ordinance, we agree with Poole and reverse his conviction.

1. Before reaching the merits of Poole’s appeal, we must address the jurisdictional issues raised by the dissent. According to the dissent, Poole’s conviction was rendered by a municipal court and his appeal must be dismissed because this Court lacks subject matter jurisdiction to consider a direct appeal from a municipal court. In this regard, the dissent contends that the state court could not have convicted Poole of a municipal ordinance violation because the state court lacked jurisdiction to try such ordinance violations. Rather, the dissent argues, when the state court convicted Poole, it was serving as a municipal court pursuant to OCGA § 15-7-80 et seq. For the following reasons, we disagree with both assertions.

(a) A state court’s criminal jurisdiction is generally governed by OCGA § 15-7-4 (a) (1), which provides that a state court shall have jurisdiction over the “trial of criminal cases below the grade of felony.” This statutory enactment is similar to the legislature’s original declaration in establishing state courts that they “shall have criminal jurisdiction in the county over all misdemeanor cases, but shall not have any jurisdiction over felony cases.” Ga. L. 1970, p. 679, § 7. The only other guidance afforded by our Code relating to a state court’s criminal jurisdiction is OCGA § 15-7-3, which provides that the jurisdiction statute “shall apply to and govern all state courts; and, unless otherwise provided in this chapter, in all cases in which there is a conflict between this chapter and the local law creating the state court, this chapter shall take priority and shall be controlling.”

The local law creating what is now known as the State Court of Troup County is codified at Ga. L. 1962, p. 3020. See also Ga. L. 1970, p. 679, § 3 (changing name of court to State Court of Troup County). The preamble to this enabling legislation shows that the legislature intended in part to create the court in lieu of the City Court of LaGrange and to define its jurisdiction. Id. Specifically, the local law provides that the court “shall have jurisdiction to try and dispose of all criminal cases for all offenses committed in the County of Troup where such offenses are designated by law to constitute a misdemeanor.” Ga. L. 1962, p. 3020, § 3. (Emphasis supplied.) Similarly, the enabling legislation creating the former City Court of LaGrange granted that court criminal jurisdiction “to try and dispose of all criminal cases for all offenses committed in the county of Troup where the offender is not subject to the loss of life or confinement in the penitentiary.” Ga. L. 1899, p. 385, § 3. Importantly, neither enabling statute limited the courts’ jurisdiction to try only “state misdemeanor cases,” but more broadly defined the courts’ jurisdiction to include all misdemeanor offenses. And, although the dissent correctly finds that the former Mayor’s Court had jurisdiction to try municipal ordinance violations, there is no language in Ga. L. 1901, p. 477, § 18, the legislation creating that court, or in OCGA § 36-32-1, which redefined it as a municipal court, granting exclusive jurisdiction to try municipal violations. In the absence of such language, and in light of the broad grant of jurisdiction to the State Court of Troup County, we believe the legislature intended to grant concurrent jurisdiction over these matters to both the municipal court and the state court. See generally OCGA § 1-3-1 (a) (“[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”). This is the only reasonable construction of the enabling legislation creating the state court, and it does not conflict with the jurisdictional provision of OCGA § 15-7-4 (a) (1).

We note finally that the cases and local laws cited by the dissent in support of its conclusion that the State Court of Troup County does not have jurisdiction over such municipal misdemeanor violations are simply not controlling. Both Dollar v. State, 160 Ga. App. 759 (288 SE2d 42) (1981) and Floyd v. State, 168 Ga. App. 645 (310 SE2d 749) (1983) concern the jurisdictional limits of the State Court of Cobb County, and the decisions in those cases only interpreted the enabling legislation establishing that particular state court. Similarly, the Georgia law cited in Dollar, and quoted by the dissent, is enabling legislation specifically creating what is now known as the State Court of Cobb County and has no application to the present case. See Ga. L. 1964, p. 3211. For these reasons, we must interpret the local law to provide that the State Court of Troup County has jurisdiction over city code misdemeanor violations.

(b) We also disagree with the dissent that the trial court in this case was acting as a municipal court. Although it is clear that OCGA § 15-7-80 authorizes a county to contract with a municipality “to furnish municipal court services to the municipality,” we do not find, as does the dissent, that “the record is replete with evidence” that the trial court in this case was acting as a municipal court. Rather, the only “evidence” cited by the dissent is the unsworn statement of the assistant solicitor that “the state is under the impression that we are operating under contract.” This is not evidence. Anthony v. State, 213 Ga. App. 303, 305 (2) (444 SE2d 393) (1994). And, the similar “finding” of the trial court, being unsupported by any evidence, is also insufficient to establish the existence of the contract. See Adamson v. Trust Co. Bank, 155 Ga. App. 646, 648 (271 SE2d 899) (1980).

Moreover, even if such a contract existed, more was required of the trial court for it to act as a municipal court. Even after such a contract is entered into and becomes effective, OCGA § 15-7-83 requires that when a state court is acting as a municipal court, that “all judges and other officers of the state court shall be styled as judges and officers of the municipal court; and all pleadings, process, and papers of the municipal court shall be styled as such and not as pleadings, process, and papers of the state court.” OCGA § 15-7-83.

In this case, the record makes it abundantly clear that the State Court of Troup County was not acting as the City of LaGrange Municipal Court. In fact, there is not a single pleading, process or paper styled as a municipal court document. The accusation, Poole’s affidavit of indigency, discovery requests and demand for witnesses, as well as the trial court’s judgment and sentencing form are all styled as documents of the State Court of Troup County. Furthermore, the accusation is signed by the “Solicitor [of the] State Court of Troup County,” and the trial judge signed the judgment as “Judge, Troup County State Court.” Finally, the transcript shows that at the opening of trial proceedings the trial judge stated: “This is the case of the State of Georgia versus Randolph Ray Poole, it’s case number 96-S-3570 in the State Court of Troup County” (Emphasis supplied.) In short, the total lack of compliance with OCGA § 15-7-83 requires a finding that the court in this case was acting as a state court and not a municipal court. And, in this appeal, Poole is simply challenging the sufficiency of the evidence supporting his state court conviction. Accordingly, contrary to the dissent’s finding, this Court does have jurisdiction to consider Poole’s appeal as a direct appeal from a state court judgment of conviction. See OCGA § 5-6-34 (a).

2. Turning to the merits of Poole’s appeal, he asserts that he was convicted of violating a municipal ordinance, but the State failed to prove the existence of the ordinance. The record shows that the State did indeed prosecute Poole for violating a city public intoxication ordinance. While the record contains evidence showing that Poole was in fact intoxicated in a public place, “there is no showing that such conduct violated any cognizable criminal law of [the] local government. ... In the absence in evidence of a properly admissible copy of the ordinance involved, neither the trial court nor this court may take judicial notice of the existence of a local ordinance. Owens v. State, 153 Ga. App. 525, 527 (2) (265 SE2d 856) [(1980) (physical precedent only)].” Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982). Because the State failed to meet its burden of proving beyond a reasonable doubt that Poole’s public intoxication violated any local ordinance, his conviction must be reversed. See Scarborough v. State, 231 Ga. 7 (200 SE2d 115) (1973); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also LaRue v. State, 137 Ga. App. 762 (224 SE2d 837) (1976) (Court reversed superior court’s denial of motion to suppress and defendant’s conviction because the State failed to introduce certified copy of city ordinance prohibiting public drunkenness).

Judgment reversed.

Andrews, C. J., Birdsong, P. J., Johnson and Blackburn, JJ, concur. Pope, P. J., and Eldridge, J., dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent from the majority’s opinion.

1. A state court does not have subject matter jurisdiction over the enforcement of a violation of a municipal ordinance absent a statutory conference of subject matter jurisdiction. There has been no statutory conference of subject matter jurisdiction to the State Court of Troup County to try a violation of a municipal ordinance of the City of LaGrange while sitting as a state court.

“The jurisdiction of the state court includes ‘misdemeanor cases.’ Ga. L. 1964, p. 3211. However, this refers only to state statutes, the violation of which constitutes a misdemeanor, and does not include a city ordinance even though the punishment thereunder may be partially within the range of punishment for a misdemeanor established by state law.” Dollar v. State, 160 Ga. App. 759, 760 (288 SE2d 42) (1981); see Floyd v. State, 168 Ga. App. 645 (310 SE2d 749) (1983) (special legislation enacted which specifically conferred subject matter jurisdiction to the State Court of Cobb County to enforce county ordinances: Ga. L. 1969, p. 2486). While the majority contends that both Dollar and Floyd have no application to the present case, because the Georgia law cited in both cases is enabling legislation specifically creating what is known as the State Court of Cobb County, I must disagree. The enabling legislation creating both the State Court of Troup County and the State Court of Cobb County gives both courts identical subject matter jurisdiction over criminal proceedings, i.e., subject matter jurisdiction over those offenses designated by law to constitute misdemeanors. Ga. L. 1964, p. 3211, § 2 (Civil and Criminal Court of Cobb County “shall have jurisdiction to try and dispose of all. . . misdemeanor cases”); Ga. L. 1962, p. 3020, § 3 (Civil and Criminal Court of Troup County shall have jurisdiction to try offenses “designated by law to constitute a misdemeanor”); see also Ga. L. 1970, p. 679, § 3 (changing name of Civil and Criminal Court of both Troup County and Cobb County to the State Court of each respective county). While it is true that neither enabling act specifies “state” misdemeanors, there is no need for such redundancy: in state law, an offense is either a felony (which carries a penalty of more than 12 months imprisonment) or the offense is a misdemeanor. OCGA § 16-1-3 (5), (9).

Further, a county or municipal ordinance violation cannot be a state law offense and cannot be designated as a misdemeanor based upon state law criteria, because county and municipal ordinance violations are not described as a crime under Title 16 of the Official Code of Georgia. OCGA § 16-1-4. In fact, the General Assembly in enacting the legislation to provide for the establishment of the Georgia Crime Information Center recognized that county or municipal ordinances are not state misdemeanors by defining an “offense” as an act which is either a felony, a misdemeanor, or a violation of a county or municipal ordinance. Ga. L. 1973, p. 1301, § 1 (b); OCGA § 35-3-30 (7). Further, the City of LaGrange, in its 1968 charter, designated a violation of one of its ordinances as an “ordinance violation,” not as a misdemeanor, which carried a maximum penalty of a fine not exceeding $500 and imprisonment not exceeding six months. Ga. L. 1968, pp. 2191, 2224, § 7.03; see also Ga. L. 1901, p. 477, § 18.

The City Court of LaGrange was created by Ga. L. 1899, p. 385. Under subsection II of such legislative act, subject matter jurisdiction was given to the City Court of LaGrange to try state misdemeanor cases, which did not specify city ordinance violations. In 1901, a Mayor’s Court was created under the new charter for the City of LaGrange, and such court was given specific subject matter jurisdiction to hear violations of the laws and ordinances of the City of LaGrange. Ga. L. 1901, p. 477, § 18. Therefore, the City of LaGrange had two courts operating simultaneously with different subject matter jurisdiction: (1) the City Court of LaGrange, with subject matter jurisdiction over state misdemeanors; and (2) the Mayor’s Court, with subject matter jurisdiction over violations of municipal ordinances.

In 1951, a legislative act was passed which allowed the election of a recorder for the City of LaGrange and renamed the Mayor’s Court the Recorder’s Court. Ga. L. 1951, p. 2623, § 1 (c).

The enactment of Ga. L. 1962, p. 3020, created the Civil and Criminal Court of Troup County (the State Court of Troup County) and abolished the City Court of LaGrange, but this act did not repeal either the act creating the Mayor’s Court or the act renaming the Mayor’s Court as the Recorder’s Court. However, Ga. L. 1962, p. 3020, § 34 specifically repealed. Ga. L. 1899, p. 385, which created the City Court of LaGrange.

In 1986, a legislative act was passed to amend Chapter 32 of Title 36 of the Official Code of Georgia under which the Recorder’s Court of LaGrange became a municipal court with continued exclusive subject matter jurisdiction over violations of municipal ordinances. OCGA § 36-32-1; Ga. L. 1986, p. 784.

Thus, since the City Court of LaGrange never had subject matter jurisdiction to hear violations of municipal ordinances, then Ga. L. 1962, p. 3020, which established the Civil and Criminal Court of Troup County (the State Court of Troup County) and which abolished the City Court of LaGrange, did not grant the State Court of Troup County subject matter jurisdiction to try violations of city ordinances. The transfer of cases under § 30 of such legislative act was simply the transfer of all state misdemeanor cases currently pending before the City Court of LaGrange at the time it was abolished; such transfer was in order to avoid an inability to prosecute pending cases and to provide continuity of jurisdiction. Ga. L. 1962, p. 3020, § 30. Thus, there has been no special statutorily conferred subject matter jurisdiction for the State Court of Troup County to try a municipal violation.

If a state court, sitting outside some statutorily conferred subject matter jurisdiction, presided over the trial of a violation of a municipal offense, then any judgment entered thereon would be void and a mere nullity, for lack of subject matter jurisdiction. Hubbard v. State, 225 Ga. App. 154 (483 SE2d 115) (1997). On appeal, this Court would be required to reverse the conviction and remand the case; double jeopardy would not attach, and the case could be retried in the court with proper subject matter jurisdiction.

2. However, within the ambit of OCGA § 15-7-80 et seq., a state court can try a violation of a municipal ordinance while sitting as a municipal court. In 1992, the General Assembly enacted OCGA § 15-7-80 et seq. Ga. L. 1992, p. 1161, § 1. Under OCGA § 15-7-80, “[t]he governing authority of any county may contract with the governing authority of any municipality within the county for the county to furnish municipal court services to the municipality as authorized by this article; and the governing authorities of municipalities are likewise authorized to enter into such contracts with county governing authorities.” Since the City of LaGrange, Georgia, lies within Troup County, this Code section gives the State Court of Troup County jurisdiction to sit as a municipal court and to try a violation of the City Code of LaGrange, Georgia, but does not give the State Court concurrent jurisdiction over municipal offenses.

The record is replete with evidence that the state court was, in fact, operating under contract as a municipal court. The assistant solicitor stated as an officer of the court, on the record that “the state is under the impression that we are operating under contract[,]” and the trial judge took judicial notice and specifically found that “the fact that we were acting under contract basically as the city recorder’s court would remove the requirement that would otherwise be to bring in a certified copy of that ordinance.” No objection was made at the trial level by counsel for the defendant as to the existence of a contract for the state court to provide municipal court services, and in fact, counsel has not raised the existence of such a contract as an enumeration of error before us. There is a presumption in favor of the regularity and legality of all proceedings in the trial court. Merrill v. State, 201 Ga. App. 671 (411 SE2d 750) (1991); Conley v. State, 172 Ga. App. 884, 885 (2) (324 SE2d 750) (1984). This Court will not presume error from a silent record. Merrill v. State, supra; Rogers v. State, 155 Ga. App. 685 (272 SE2d 549) (1980). Therefore, since the question of the existence of or the legality of the contract was not raised at the trial level and is not before this Court, this Court must presume that the contract between Troup County and the City of LaGrange was proper under OCGA § 15-7-80 et seq.

Since the State Court of Troup County was operating under a contract to provide municipal court services to the City of LaGrange as the municipal court, it would have jurisdiction to hear either the state offense of public drunk as the state court or the municipal offense of public drunk as a municipal court. Counsel for the appellant did not object to the State’s election to proceed under the violation of the public drunk ordinance of the City Code of LaGrange, § 35-1-25. When the State Court of Troup County imposed sentence, it was, therefore, acting as a municipal court for the City of LaGrange and not as a state court. If the State had elected to proceed on the other two counts of the indictment, the state court could have tried the other state offenses, as well as the municipal offense, at the same time but would have to indicate in its sentences the jurisdiction for each, i.e., municipal court for the offense of public drunk and state court for the charges of reckless conduct and criminal trespass.

Decided November 17, 1997.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

A direct review of a conviction in a municipal court shall be by writ of certiorari to the superior court of the county within which the municipality lies. OCGA § 5-4-1. Therefore, when a state court is sitting as a municipal court pursuant to OCGA § 15-7-80 et seq., all direct reviews of any conviction or final judgment shall be by writ of certiorari to the appropriate superior court. This Court, therefore, lacks subject matter jurisdiction to consider the appellant’s direct appeal. Further, this appeal cannot be transferred to the superior court for determination, because an appeal is not the statutory procedure for review by a superior court of an inferior court; the notice of appeal does not satisfy the mandated elements of an application for a writ of certiorari. Therefore, this appeal should be dismissed.

I am authorized to state that Presiding Judge Pope joins in this dissent.

       I note that the dissent has created quite a dilemma for a defendant in Poole’s shoes. Although the uncontradicted evidence of record shows that the judgment was rendered by a state court, the dissent concludes that he should have filed an application for certiorari to the superior court. If, however, Poole had applied to the superior court for review, his petition would have properly been dismissed because there was no evidence the judgment was issued by a municipal court. See OCGA § 5-4-1 (a).

       It should be noted that the State has inexplicably failed to file an appellee’s brief in this case. Such conduct not only constitutes a dereliction of the solicitor’s duties under OCGA § 15-18-66 (a) (4), but may also subject him or her to contempt of this Court under Court of Appeals Rule 26 (b).

       Even though the issue of subject matter jurisdiction can be raised at any time, the issue of jurisdiction based on the existence of or the legality of a contract entered into between a county and a municipality pursuant to OCGA § 15-7-80 et seq. allowing the county to furnish municipal court services to the municipality must be raised at the trial level, so that the trial court can have an evidentiary hearing to prove or disprove the contract. Otherwise, this case would have to be remanded for such factual determination.

       Pursuant to OCGA § 15-7-83, when a state court is acting as a municipal court, “judges and other officers of the state court shall be styled as judges and officers of the municipal court; and all pleadings, process, and papers of the municipal court shall be styled as such and not as pleadings, process, and papers of the state court.” Such Code section also provides that “[t]he dockets and other records of the municipal court shall be kept separately from those of the state court.” Even though this procedure was not followed in the case sub judice, the appellant’s failure to raise this as error on appeal precludes our review of this matter. This Court cannot acquire subject matter jurisdiction through the error of the state court sentence to indicate on its face that the sentence was imposed under municipal court jurisdiction only.


author: Pope, Presiding Judge.

text:
    A97A2049.
    BANKS v. THE STATE.
    (493 SE2d 923)
   Pope, Presiding Judge.

Ladds Taylor Banks appeals his bench trial conviction for misdemeanor possession of marijuana. He claims that the Gwinnett County State Court lacked jurisdiction over the crime charged and that the court erred in denying his motion to suppress the marijuana seized during a late-night “security check” of his business. We conclude that the state court had jurisdiction, and that officers conducting routine, nighttime investigations of businesses on their patrol may enter an unlocked commercial premises to check for intruders. Accordingly, we affirm the conviction.

1. In his first enumeration, Banks argues that he was actually charged with a felony, over which the state court had no jurisdiction. See generally OCGA § 15-7-4. Without considering the effect of Banks’ failure to raise this issue before trial, we find his argument meritless. Banks correctly asserts that OCGA § 16-13-30 (j) makes possession of marijuana a felony unless the conditions of OCGA § 16-13-2 (b) apply. As enacted at the time of Banks’ offense and conviction, § 16-13-2 (b) made possession of less than one ounce of marijuana a misdemeanor where the defendant “would have qualified for the conditional discharge provided for in [OCGA § 16-13-2 (a)] but for the fact that the judge chose not to avail himself of the authority granted by this Code section or that the person violated the conditions imposed by the court. . . ,” The amended accusation states, and the record shows, that Banks had never been convicted of any drug offense; therefore, he “would have qualified” for conditional discharge under OCGA § 16-13-2 (a). We find nothing in the statute which confers misdemeanor status on first offenders only where the court has actually considered and denied the defendant conditional discharge. Although the record does not reflect whether the court considered and rejected conditional discharge, the court clearly “did not avail” itself of this authority. Consequently, Banks’ reliance on Williams v. State, 222 Ga. App. 698 (475 SE2d 667) (1996) and Kent v. State, 129 Ga. App. 71 (198 SE2d 712) (1973) is misplaced, and this enumeration is without merit.

2. In reviewing the trial court’s denial of Banks’ motion to suppress the marijuana, we construe the evidence in favor of the court’s findings and judgment and uphold its findings unless clearly erroneous. See Beck v. State, 216 Ga. App. 532, 534 (1) (455 SE2d 110) (1995). The record shows that on Christmas night 1995, a Duluth police officer began his routine patrol, aware that two businesses on his beat had been burglarized the night before. Around 11:55 p.m., the officer drove through an area of warehouses and other commercial operations that included, in Suite 105-A, Banks’ computer consulting business. Although he was apparently not familiar with Banks’ working hours or the nature of his business, the officer had patrolled this area for several months and was surprised to see a light burning in Suite 105-A and two unfamiliar cars parked nearby. He checked the door of Suite 105-A and, finding it closed but unlocked, decided to investigate and called for a backup unit. When assistance arrived, the two officers, without knocking or announcing their presence, opened the unlocked door and smelled burning marijuana. Walking down a hallway, they encountered Banks, who told them he owned the business. Unsure of Banks’ identity, the officers proceeded with him into a back room filled with marijuana smoke, where they found four other people and saw a marijuana pipe. When one of the officers asked Banks if he had any more marijuana, Banks reached into his front pocket and produced a small bag.

Banks argues that before officers opened the door of his business, they had no warrant and knew of no exigent circumstances which would allow a warrantless entry. We agree that if the State were required to show the “exigent circumstances” which will justify the warrantless intrusion into one’s residence, its efforts to justify this search would fail. See generally Carranza v. State, 266 Ga. 263, 266-267 (467 SE2d 315) (1996). The State argues, however, that police officers making routine, nighttime patrols of apparently closed businesses may enter a business they find unlocked to ensure no intruders are on the premises. Although no Georgia case directly addresses this warrant exception, we agree that such a limited exception is consistent with the Fourth Amendment.

As the Supreme Court of Georgia has held, “ ‘The Warrant clause of the Fourth Amendment protects commercial buildings as well as private homes.’ [Cit.]” Yingsum Au v. State, 258 Ga. 419, 420 (369 SE2d 905) (1988). In Yingsum, the court struck down as unconstitutional a Marietta ordinance which gave officers broad, discretionary authority to make warrantless searches of city businesses. Nothing in Yingsum, however, addresses the specific issue at hand. Although Carranza requires that a warrantless search of a residence be justified by exigent circumstances, we do not find that holding extends to commercial premises. As one federal appeals court has stated, “[I]t may be'said as a general rule that there is a lesser expectation of privacy in commercial as contrasted with residential buildings. [Cit.]” United States v. Bute, 43 F3d 531, 536 (10th Cir. 1994).

A number of courts have squarely addressed the propriety of a warrantless “security check” search. In Alaska v. Myers, 601 P2d 239 (Alaska 1979), officers patrolling a commercial area late at night found the back door of a closed theater propped open. Suspecting unauthorized intruders, the officers entered the theater, walked behind the stage, and found the manager and others sitting on the floor with drug devices. Id. at 241. The court noted that had the theater been a home, the officers’ intrusion would have been improper. “With respect to a business, however, when the doors close, the owner has gone home, and night falls, the owner’s interest is normally not the protection of private conduct; at such a time, when the property is most vulnerable to burglary, the security of the premises ordinarily becomes the paramount interest. It is only reasonable to assume that the vast majority of proprietors . . . subjectively expect and encourage the police to be vigilant in protecting business premises, and are aware that, when a normally deserted and locked building is discovered by the police to be unsecured, such vigilance may require trespasses that would not be tolerated in one’s home.” Id. at 243. Because business proprietors possessed this “diminished expectation of privacy,” the court found such warrantless entries of businesses proper. Id. The court held that when police conduct a “routine, after-hours security check undertaken to protect the interests of the property owner” and find an unlocked door, and “there is no reason to believe that the owner would not consent to . . . entry,” officers may conduct a brief search which is “limited and necessary to the purpose of ensuring that no intruders are present on the premises.” Id. at 244. Furthermore, the court held police must quickly inform those responsible for the building of the “protective measures taken.” Id.

Other courts have fashioned similar rules. In Illinois v. Gardner, 459 NE2d 676, 680-681 (Ill. App. 1984), the court found the “security check” exception allowed officers on routine patrol to enter a closed but unlocked auto repair shop. In People v. Parra, 106 Cal. Rptr. 531, 534 (Cal. App. 1973), the court held officers without a warrant were justified in entering an empty flower shop after business hours when the door was standing ajar. And in a case very similar to this one, a Florida appeals court authorized the warrantless search of a business at 3:30 a.m. where officers saw a light burning in a rear window and found the door of the building closed but unlocked. Florida v. Bell, 249 S2d 748 (Fla. App. 1971). The Bell case notes that officers patrolling commercial areas at night routinely check to ensure businesses áre locked and secure. Id. at 751.

Finding this authority persuasive, we hold that officers who find an apparently closed business unlocked during a normal security sweep may conduct a limited intrusion on the business premises for the sole purpose of securing the area and ensuring no intruders are present. See Myers, 601 P2d at 244. At the same time, however, we acknowledge the concerns expressed by the federal court of appeals in Bute, 43 F3d at 537, which rejected a “wholesale exception” because it “makes no accommodation for the particular nature and circumstances surrounding individual buildings.” Rather than create a wholesale license for officers to enter unlocked commercial premises after business hours, we hold that such an intrusion will be proper only when it is justified by an officer’s reasonable belief that (1) the building’s owner or rightful occupants would not object to the intrusion, and (2) circumstances are sufficient to give the officer an “articulable suspicion” that unauthorized persons are presently on the premises. See Myers, 601 P2d at 244; Alex v. State, 220 Ga. App. 754, 756 (2) (470 SE2d 305) (1996) (defining “articulable suspicion”).

Decided November 17, 1997.

Clark & Towne, David E. Clark, Bridgette E. Dawson, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, William F. Bryant, Assistant Solicitors, for appellee.

Applying this rule to the facts at hand, we find the trial court properly denied the motion to suppress. The unusual circumstances, including the unlocked door, the recent burglaries, the light in the window near midnight, and the presence of unfamiliar cars, allowed the officers to enter the building to check for intruders. And once they entered the building, smelled and saw the marijuana smoke “billowing” through the building, and were seen by Banks, Banks’ awareness of their presence created exigent circumstances further allowing the warrantless search, as the officers were entitled to prevent the probable destruction of the marijuana. See Evans v. State of Ga., 214 Ga. App. 844, 845 (1) (449 SE2d 302) (1994). When the officers reached the back room and saw the marijuana smoking device in plain view, they had probable cause to seize the device and search for additional contraband. See Pickens v. State, 225 Ga. App. 792, 795 (1) (b) (484 SE2d 731) (1997).

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs fully in Division 2 and concurs in judgment only in Division 1.

       The statute was amended, effective April 29, 1997, to provide that possession of less than one ounce of marijuana is always a misdemeanor.


author: Blackburn, Judge.

text:
    A97A2282.
    CARTER v. THE STATE.
    (494 SE2d 108)
   Blackburn, Judge.

Jeffery Carter was convicted after a bench trial of violating the Georgia Controlled Substances Act and making terroristic threats. Carter appeals the trial court’s denial of his motion to suppress.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Sanders v. State, 226 Ga. App. 565, 566 (2) (487 SE2d 115) (1997).

Officer Baldwin testified at the motion to suppress hearing that at approximately 2:33 a.m., he and Officer McGonigle, who was traveling in a separate police vehicle, observed a white BMW driving extremely slowly and then suddenly speeding away. Officer Baldwin testified that his suspicions were aroused by the erratic speed of the BMW as it was driven through an area known for drug transactions. Both officers followed the BMW with Officer McGonigle’s vehicle in the lead. The officers then observed the BMW make a “quick right-hand turn without using any turn signals or hand-to-arm motions.” Officer McGonigle did not follow the car but proceeded in a forward direction. Officer Baldwin, in the second police vehicle, saw all three occupants in the BMW turn around to watch Officer McGonigle’s vehicle. Thereafter, the driver of the BMW put the car into reverse and began to back up. Officer Baldwin then activated his emergency lights and executed a traffic stop of the BMW based upon the illegal turn.

Officer Baldwin exited his vehicle and ordered the driver of the BMW to shut off his engine, at which point Carter, the front seat passenger, exited the BMW and began to walk away. Officer Baldwin ordered Carter to get back in the car; however, Carter began to run beside a building and into the woods. Officer Baldwin chased Carter, and when he caught Carter, a struggle ensued. Officer McGonigle also gave chase and assisted in getting control of Carter when he was caught. Officer Baldwin noticed the two other occupants of the car walking toward the woods so he handcuffed Carter for “better control of the situation.” At that point, Officer Baldwdn saw a clear plastic bag containing several small plastic bags which contained crack cocaine hanging out of Carter’s pocket.

Explaining his reasons for chasing Carter, Officer Baldwin testified that “given the hour, given the suspicious behavior of the occupants of the vehicle, given the area, given the fact that he ran when I — when I ordered him back inside the vehicle, for officers’ safety, for my safety, for Officer McGonigle’s safety, I chased Mr. Carter.” After questioning from the court, Officer Baldwin further explained “we only had two officers, we had three occupants, we were taught in the academy that it could be used as a distraction. And that concerned us, especially in the area that we were in. So we needed to — we didn’t know if he’d to [sic] circle around or if he was just running, or what he was running for, what his — or what his motives were. So for, for our safety, he needed to be detained until we could, until we could figure out exactly what was going on.”

In Maryland v. Wilson, 519 U. S._(117 SC 882, 137 LE2d 41) (1997), the United States Supreme Court determined that a police officer executing a valid traffic stop was authorized to order the front seat passenger out of the car. The Court explained, “the touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security, and that reasonableness depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” (Citations and punctuation omitted.) 137 LE2d at 46. In discussing a case regarding a police officer’s authority to order the driver of a car validly stopped to get out of the car, the Supreme Court stated that “[o]n the public interest side of the balance, we noted that the State freely conceded that there had been nothing unusual or suspicious to justify ordering [the driver] out of the car, but that it was the officer’s practice to order all drivers stopped in traffic stops out of their vehicles as a matter of course as a precautionary measure to protect the officer’s safety. We thought it too plain for argument that this justification officer safety was both legitimate and weighty.” (Citation and punctuation omitted; emphasis supplied.) Id. The Supreme Court went on to find that the same justification — officer safety — was sufficient to support the officer’s conduct in ordering a passenger out of a validly stopped vehicle. 137 LE2d at 48. Although the Supreme Court specifically declined to address the issue presented by the present case, id. at n. 3, the analysis for the intrusion into the passenger’s right to be free from arbitrary interference by law officers remains the same. Furthermore, in Maryland v. Wilson, the Supreme Court relied upon their opinion in Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981), wherein they determined an officer was justified in requiring the defendant to re-enter the residence and remain while a search warrant was executed. Maryland v. Wilson, supra, 137 LE2d 48.

In the present case, we must consider whether officer safety is sufficient justification to allow an officer to order a passenger to remain in a validly stopped vehicle. Under the limited facts of this case, we find that it does. On the public interest side of the balance, there is the already recognized weighty interest of officer safety. On the personal liberty side of the balance in the present case, there is a minimal intrusion by detaining the passenger while the officer completes the traffic stop. The facts are clear that the passenger was not attempting to get out of the car prior to the traffic stop. By backing up the vehicle after all occupants watched to make sure the first officer’s car passed, the facts actually indicate an attempt to elude the police rather than an act of dropping off a passenger. Additionally, under the facts of this case the officer’s justification in fearing for his safety if the passenger was allowed to leave the scene is even more weighty because of the suspicious behavior which occurred prior to the passenger’s attempt to run away.

Decided November 17, 1997.

Corinne M. Mull, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert W. Houman, Assistant District Attorneys, for appellee.

“Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Punctuation omitted.) State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991). In State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198) (1989), we reversed the trial court’s grant of the defendant’s motion to suppress finding that the totality of the circumstances, the time of day, the location, and the defendant’s flight provided “probable cause for a belief that [the defendant] was in possession of unlawful contraband.” The mere fact that the suspicious person was sitting in a car and not standing on the sidewalk should not change the analysis.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A97A0940.
    MORRISSETTE v. THE STATE.
    (494 SE2d 8)
   Smith, Judge.

A jury found Todd Allen Morrissette guilty of two counts of DUI, OCGA § 40-6-391 (a) (1), (5), and failure to maintain lane. OCGA § 40-6-48. Morrissette appeals from the judgment of conviction and sentence entered thereon.

The evidence presented at trial showed that Morrissette was driving a sport-utility vehicle with three passengers in the early morning hours. The vehicle flipped over, injuring several of the passengers. Officer Dale Nix of the DeKalb County Police Department responded to the accident. When Morrissette stepped forward to identify himself as the driver, Nix detected a strong odor of alcohol. He made a decision then to call another officer “better trained for DUIs.” In less than five minutes, Officer John Fox of the Strategic Traffic Accident Reduction (STAR) team of the DeKalb Police Department arrived on the scene. Fox also noticed an odor of alcohol on Mor-rissette’s breath and observed that Morrissette’s eyes were bloodshot and glassy and he was unsteady on his feet. While emergency medical technicians treated Morrissette’s passengers, who were more severely injured, Fox conducted field sobriety tests on Morrissette, after which Morrissette was treated by the EMTs and released. Fox then placed him in the back of his patrol car and turned his attention to the clearing and removal of the wreck. Fox then advised Morris-sette that he was under arrest for DUI, read him his implied consent rights, and transported him to a nearby hospital for a blood alcohol test and further examination for possible injuries. Morrissette’s blood alcohol level tested at 0.16 grams.

1. Morrissette contends the trial court erred in admitting evidence of the field sobriety tests.

(a) He first argues that it was error to admit evidence of the field tests because he was in custody at the time and received no Miranda warnings.

In Miranda v. Arizona, 384 U. S. 436, 478 (86 SC 1602, 16 LE2d 694) (1966), the Supreme Court held that individuals who are “in custody” must be advised of their rights against self-incrimination before they may be interrogated. Hughes v. State, 259 Ga. 227, 228 (2) (a) (378 SE2d 853) (1989). But only custodial statements by an accused must be preceded by Miranda warnings. Carroll v. State, 203 Ga. App. 22, 23 (416 SE2d 354) (1992). Morrissette claims he was “in custody” when the field sobriety tests were performed because he was not free to leave. He argues that Nix placed him in the back of his patrol car to await Fox’s arrival. His driver’s license was taken. Although he was not handcuffed, the back door handles on Nix’s patrol car had been removed, making the doors difficult (although not impossible, according to Fox) to open from the inside. Even had he been able to exit the patrol car, he could not have left the scene. His own vehicle was not driveable, and even if it had been, Morris-sette had been in an accident and had a legal obligation to remain at the scene.

Morrissette’s argument has no merit. First, field sobriety tests are not “statements.” They are “not evidence of a testimonial or communicative nature.” They are therefore not inadmissible under the Fifth Amendment to the U. S. Constitution even if the accused was “in custody” and no Miranda warnings have been given. Hughes, supra at 228 (2) (b).

Second, unlike the situation in State v. O’Donnell, 225 Ga. App. 502 (484 SE2d 313) (1997), cited by Morrissette, the record shows that Morrissette was not “in custody.” Morrissette was in the back seat of Nix’s patrol car “less than five minutes” awaiting Fox’s arrival. He was released from the patrol car as soon as Fox arrived. And the fact that Morrissette may have had no apparent way of leaving and that he owed a legal duty to remain at the scene for other reasons does not mean he was “in custody” for Miranda purposes. “The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody, even if at that point, by leaving, the detainee could be arrested for violating State law. [Cit.]” State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474 SE2d 122) (1996). Here, as in Pas-torini, the detainee’s driver’s license was taken to enable the officers to proceed with investigating the vehicular accident in which the detainee was involved. A reasonable person would conclude under such circumstances that the detention was only temporary and not the equivalent of a formal arrest. Id.

Although both Nix and Fox strongly suspected from their observation of Morrissette that he was intoxicated and Fox testified that he could have arrested Morrissette before doing the field tests, that did not happen until after the field sobriety tests had been completed and the officers’ suspicions confirmed. It is clear from the evidence that Morrissette’s earlier detention was temporary. See generally Hughes, supra at 228 (1). “Such detentions do not trigger the requirements of Miranda. [Cit.]” Coates v. State, 216 Ga. App. 93, 95 (7) (453 SE2d 35) (1995). The trial court did not err in admitting the results of the field sobriety tests on this ground.

(b) Morrissette also argues that even if no constitutional violation occurred the field sobriety tests should not have been admitted into evidence because Morrissette was injured when he performed the tests and the results were therefore unfairly prejudicial. We do not agree. Even assuming that Morrissette’s performance on the tests was influenced by his relatively minor injuries, this would be a factor affecting the weight the jury should give this evidence; it would not have affected the evidence’s admissibility. The decision whether to admit evidence is in the trial court’s discretion, and Mor-rissette has shown no abuse of that discretion in this case. Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995).

2. Morrissette next maintains that the results of the State-administered blood alcohol test should have been excluded.

(a) He asserts that the implied consent warnings read to him were “misleading, coercive, deceptive, and misstated the true and legitimate consequences of both the refusal and submittal” to the test. This Court has held that test results are inadmissible when the implied consent warnings given before the test give the advisee “inaccurate, misleading, and/or inapplicable information,” thus depriving him of making an informed choice regarding submitting to or refusing the State-administered test. State v. Leviner, 213 Ga. App. 99, 103 (3) (e) (443 SE2d 688) (1994). See also Deckard v. State, 210 Ga. App. 421, 423 (436 SE2d 536) (1993) (consent based upon “deceptively misleading information concerning a penalty for refusal”).

The current statutorily mandated implied consent warnings state that Georgia law requires the advisee to submit to the State-administered chemical test; they then explain the consequences of refusing to so submit. Those consequences include suspension of the advisee’s Georgia driver’s license or privilege to drive in Georgia. OCGA § 40-5-67.1 (b) (2). They are therefore not misleading in the same manner as were the warnings addressed in Leviner and Deck-ard. Morrissette relies, however, on Fox’s admission that he did not initiate an administrative license suspension by issuing the applicable DPS form 1205 or 1205S and evidence presented that issuance of such form is the only means by which administrative suspension can be effectuated. Morrissette argues that this evidence necessitates the conclusion that the warnings read to him were deceptive or misleading because they misstated the consequences of a potential refusal to submit to the test. This argument is based upon Morrissette’s belief that Fox never institutes administrative suspension proceedings, and that the warning he reads is therefore misleading in suggesting that license (or privilege) suspension is a possible consequence either of elevated blood alcohol levels or of refusal to submit to the test.

But in regard to submitting to the test, Fox did not advise Mor-rissette that Morrissette’s license would be suspended if the results indicated his blood alcohol level was .10 or more; he merely advised that it “may” be suspended. This was not deceptive. Although the results indicated that Morrissette’s blood alcohol level was greater than .10 his license was not suspended, although it might have been. Morrissette did not refuse to take the test, so the consequences of a refusal are unknown in this case. Had Morrissette refused to take the test, Fox might well have initiated a license suspension. Moreover, contrary to Morrissette’s argument, no evidence was actually presented about Fox’s routine practice with regard to refusals. The trial court did not err in denying Morrissette’s motion to exclude the results of the State-administered blood test on this ground. The warning read by Fox tracked the language of OCGA § 40-5-67.1 (b), which has been approved by this Court. We find no error.

(b) Relying upon Perano v. State, 250 Ga. 704 (300 SE2d 668) (1983), Morrissette also contends that the blood test results should have been excluded because the implied consent warnings were not timely given.

OCGA § 40-6-392 (a) (4) provides that the implied consent warnings must be given “at the time of arrest.” In Perano, supra, the Supreme Court clarified this language, holding that results of the State-administered test will be inadmissible when the warnings are “not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Id. at 708. In this case, the warnings were read to Morrissette at a time as close in proximity to the time of his arrest as the circumstances warranted, and the results of the blood test were therefore properly admitted.

Morrissette indicated to Fox that he wished to be seen by the emergency medical technicians. After field sobriety tests were administered, Morrissette was treated by the EMTs. He was then placed in Fox’s patrol car while Fox finished attending to the wrecker clearing the scene. Fox moved his car and made sure the wrecker would be able to place Morrissette’s vehicle upright and tow it. As soon as this was completed, he read the implied consent warnings to Morrissette. Morrissette agreed to take the blood test and Fox transported him to the hospital. Here, as in Martin v. State, 211 Ga. App. 561 (440 SE2d 24) (1993), it is clear that the implied consent warnings were not delayed “merely as a matter of convenience for the police.” Id. at 562. And here, as in Martin, they were given at the scene only minutes after the arrest. After placing Morrissette under arrest and in the back of his patrol car, Fox attended to matters at the scene that were necessary and were part of his duties as a police officer. After attending to Morrissette’s injuries and making certain the accident scene was cleared, he read the implied consent warnings at his first practical opportunity. This was within the time permitted under Perano. The trial court did not err in finding that the implied consent warnings were timely given.

(c) Morrissette asserts that the blood test results were inadmissible because the State failed to comply with OCGA § 40-6-392 in that the chemical test was not performed on a machine with all of its parts attached and in good working order. He is referring in this enumeration to the gas chromatograph used by Dr. Robert Brown, the forensic chemist employed by the GBI, to analyze the blood sample. Although it is true that Dr. Brown did not know the internal work-, ings of the machine and probably was not qualified to repair it, he did not need to do so. Dr. Brown testified that he had been trained to operate the machine properly. He is able to discern whether the machine is actually working properly because he calibrates it and tests it by running samples of known concentration to verify the results. He did so before analyzing the sample of Morrissette’s blood to ensure that “the instrument is running correctly and that it is giving you the correct analytical results.” Nothing more is required. Bazemore v. State, 225 Ga. App. 741, 743-745 (2) (484 SE2d 673) (1997).

3. Morrissette complains of the trial court’s failure to give two of his requested jury, charges.

(a) Morrissette was charged both with being a less safe driver, OCGA § 40-6-391 (a) (1), and with having a blood alcohol concentration greater than 0.1. OCGA § 40-6-391 (a) (5). He requested two charges that, according to Morrissette, purported to explain how the “per se” count of DUI meshed with the “less safe” count. The requested charges, however, were not adjusted to the evidence presented. Morrissette’s blood alcohol was .16 and his requested charges covered situations where the blood alcohol level is either between .05 and .08 or less than .05. A requested jury charge must be tailored to the indictment and adjusted to the evidence. Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991). It was not error, for the trial court to refuse to give these charges.

(b) It was similarly not error for the trial court to refuse to charge the jury on accident. Although Morrissette had been in an accident, the charges against Morrissette related not to the accident but to his condition while driving.

Judgment affirmed.

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

On Motion for Reconsideration.

On motion for reconsideration, Morrissette states several times that this Court failed to view the videotape shown to the jury. It is indeed true that this Court failed to view the tape; it was not sent up with the record. The court reporter’s index to the trial transcript indicates that this exhibit was “retained by counsel.” The burden is on the appellant to bring up all portions of the record and evidence necessary to his or her appeal.. If physical evidence is relied upon by a party, it is the duty of that party to include it as part of the transcript. “It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” (Citations and punctuation omitted.) Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418) (1990).

Decided October 22, 1997

Reconsideration denied November 18, 1997

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Elaine W. Brooks, W. Cliff Howard, Assistant Solicitors, for appellee.

Motion for reconsideration denied.

       Morrissette was sentenced on only one of the DUI counts, the violation of OCGA § 40-6-391 (a) (1).

       Although Nix testified he did not place Morrissette in the back of his patrol car at all, Fox testified that when he arrived on the scene he found Morrissette in the back seat of Nix’s patrol car.

       Here, as in Hughes, Morrissette does not raise OCGA § 24-9-20. His arguments are based solely upon the U. S. Constitution.

       In O’Donnell, we found that it was “undisputed . . . that defendant was under arrest when [the officer] questioned him and had him perform field sobriety tests.” Id. at 503-504 (1).


author: Johnson, Judge.

text:
    A97A1414.
    GAFFRON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (494 SE2d 54)
   Johnson, Judge.

Audrey Gaffron sued Metropolitan Atlanta Rapid Transit Authority (“MARTA”) for damages sustained when she was struck by a MARTA bus while attempting to cross a street in Atlanta. A jury awarded Gaffron $20,000. Gaffron appeals, alleging that errors committed by the trial court resulted in a low verdict. For reasons which follow, we reverse.

The evidence at trial showed that the incident occurred at the intersection of 15th Street and West Peachtree Street. At this intersection, 15th Street is a four-lane road with two lanes for eastbound traffic and two lanes for westbound traffic. It dead-ends into West Peachtree Street, which is a one-way road with five lanes for northbound traffic. The intersection is governed by a pedestrian-control signal which exhibits the words “WALK” or “DON’T WALK.” The two lanes of vehicular traffic turning from 15th Street onto West Peach-tree Street have a green light at the same time the pedestrian signal exhibits the “WALK” signal for pedestrians to cross West Peachtree Street.

Gaffron pushed the pedestrian-control signal button, waited for the “WALK” signal to appear, and proceeded to cross West Peachtree Street. As Gaffron was waiting for the ‘WALK” signal to appear, the MARTA bus driver was stopped on 15th Street at the red light. When the light changed to green, the bus driver turned onto West Peach-tree Street.

According to eyewitness Bobbie Jones, as the pedestrian signal changed to instruct pedestrians to cross the street, Gaffron placed her foot directly into the crosswalk and never angled out of the crosswalk until she was struck by the MARTA bus. While Jones acknowledged that the bloodstain where Gaffron’s leg was pinned by the bus was not in the crosswalk, she testified that when she last saw Gaf-fron, Gaffron was in the crosswalk. Jones opined that the bloodstain was outside the crosswalk because Gaffron was “knocked over to the side and knocked over from the impact of the bus.” Jones saw “part of her body slide, hit to the ground.”

Gaffron testified that the bus was right in front of her when she saw it, that she put up her arms and her elbows struck the right front door of the bus. She was trying to go backward away from the bus. According to Gaffron, she never considered going out of the crosswalk and she never, by her own volition and intent, took even one step outside the crosswalk. Rather, she was pushed out of the crosswalk by the bus or stepped out trying to avoid being hit by the bus.

Every witness, with the exception of MARTA’s driver, who never saw any pedestrian, acknowledged that Gaffron was waiting on the curb at the crosswalk and entered the roadway inside the crosswalk. One witness testified, however, that Gaffron was outside the crosswalk when she was hit by the bus. According to Mae Murphy, Gaf-fron stepped into the crosswalk and walked about halfway across West Peachtree Street. Gaffron slowed to let a white van go by and started walking again. She then “walked out of the crosswalk going around the front of the bus” and was not in the crosswalk when the bus hit her. Murphy testified the bus driver stopped as soon as he hit Gaffron. In addition, the MARTA bus driver testified that the bus did not knock Gaffron in any direction but that she was hit at the front door and fell at the right front tire.

1. In enumerations of error one through four, Gaffron contends the trial court erred in failing to grant her motion for a directed verdict on liability and erred in charging the jury on ordinary care, the avoidance doctrine, and comparative negligence. Gaffron suggests these errors stemmed from the trial court’s mistaken belief that she had a duty to look out for approaching vehicles.

This case is governed by OCGA § 40-6-22. This statute was specifically drafted by the legislature to deal with intersections which have pedestrian-control signals. The statute grants pedestrians the right of way when they cross the street in accordance with the signals:

“Whenever special pedestrian-control signals exhibiting the words WALK or DON’T WALK or symbols so directing a pedestrian are in place, such signals shall indicate as follows: (1) Flashing or steady WALK — Pedestrians facing such signal may proceed across the roadway in the direction of the signal. Every driver of a vehicle shall yield the right of way to such pedestrians” (Emphasis supplied.) OCGA § 40-6-22 (1) (pre-1995 statute). This statute does not mention the word crosswalk or. contemplate the use of a crosswalk by the pedestrian.

This statute should be read in conjunction with OCGA § 40-6-21, which provides in pertinent part, as follows:

“(a) The following meanings shall be given to highway traffic signal indications, except those on pedestrian signals: (1) Green indications shall have the following meanings: (A) Traffic, except pedestrians, facing a CIRCULAR GREEN signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Vehicular traffic, including vehicles turning right or left, shall yield the right of way to . . . pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited. . . .” (Emphasis supplied.) OCGA § 40-6-21 (a) (1) (A) (pre-1995 statute). This statute mandates that a vehicle must yield the right of way to a pedestrian who is lawfully within the intersection (i.e., crossing the intersection in accordance with a flashing or steady WALK signal) or a pedestrian who is lawfully in a crosswalk.

MARTA contends that Gaffron had a duty to exercise ordinary care for her own safety, had a duty to avoid the consequences of any negligence on the part of its bus driver, assumed the risk of any injury, and was negligent because she was outside the crosswalk when she was struck by the bus. Gaffron contends she was not outside the crosswalk when she was struck, but was pushed out of the crosswalk upon impact. Where Gaffron was located when she was struck by the bus, however, is not determinative in this case.

It is true that both OCGA §§ 40-6-21 (a) (1) (A) and 40-6-22 (1) mandate that the driver of a vehicle shall yield the right of way to a pedestrian lawfully crossing an intersection. However, these statutes do not abrogate a pedestrian’s duties to exercise ordinary care for her own safety and avoid the consequences of any negligence on the part of others. While a pedestrian is not required to continually look and listen to ascertain if vehicles áre approaching (see Whiteway Laundry & Dry Cleaners v. Childs, 126 Ga. App. 617, 620 (10) (191 SE2d 454) (1972)), a pedestrian may not ignore traffic conditions and enter the roadway relieved of her duty to exercise ordinary care for her own safety. See Harris v. Cates, 105 Ga. App. 178, 182 (6) (123 SE2d 703) (1961), rev’d on other grounds, 217 Ga. 801 (125 SE2d 649) (1962) (failure of a pedestrian to look at all or to look at a given time for oncoming vehicles may, under some, circumstances, constitute negligence).

In Greene v. Helms, 115 Ga. App. 447, 451 (154 SE2d 892) (1967), this Court held that even though vehicles were required to yield to pedestrians crossing the street within a crosswalk, and thus the pedestrian was entitled to assume that an approaching vehicle would obey the rules of the road and yield the right of way to the pedestrian, a pedestrian may still be negligent in failing to look for vehicles. According to Greene, questions regarding comparative negligence are peculiarly for determination by the jury. Id.

“Certainly today ordinary care for [her] own safety requires a pedestrian upon entering any public street to look out in every direction from which traffic might approach and to ascertain that it is safe to enter the street. Having done this, [she] is under the further duty, ‘while crossing or walking or standing in the roadway, to keep a reasonable lookout for passing vehicles, in order to avoid injury therefrom; and the failure to do so may constitute negligence . . . although it will not necessarily do so under all circumstances.’ [Cit.]” Harris, supra at 183.

In short, the law does not, as Gaffron suggests, relieve a pedestrian who has the right of way from all duty to exercise ordinary care for her own safety or to avoid the negligence of a vehicle driver, if it is possible to do so, once it becomes apparent or should have become apparent to her. Rather, where there is evidence to support them, such issues should be left to jury resolution. This principle has been upheld on numerous occasions in the context of vehicular accidents. In Kirkland v. Moore, 128 Ga. App. 34, 35-37 (195 SE2d 667) (1973), involving an automobile/motorcycle collision at an intersection, we held that even though a motor vehicle driver has the right of way at an intersection and has the right to assume that drivers of other vehicles will yield the right of way and exercise the ordinary care required of them, the driver having the right of way is not relieved of his own duty to exercise ordinary care. “His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly or recklessly across an intersection . . . without regard to the conditions and consequences.” (Punctuation omitted; emphasis in original.) Id. at 36. See also Stroud v. Woodruff, 183 Ga. App. 628 (1), (2) (359 SE2d 680) (1987).

Gaffron testified that she was familiar with the area and had traversed the intersection on numerous previous occasions. She further acknowledged that she was aware that two lanes of traffic would be coming from 15th Street turning right onto West Peachtree Street at the same time she was crossing West Peachtree Street, yet she never looked back to her left after initially looking as she stepped into the crosswalk. Gaffron admitted she would have seen the bus had she looked to her left. Thus, while it is clear Gaffron had the right of way and while there is compelling evidence indicating the MARTA bus driver was violating OCGA § 40-6-20 by not yielding to Gaffron, there was evidence from which the jury could infer that Gaf-fron was familiar with the dangerous nature of the intersection yet took insufficient precautionary measures, such as failing to look to her left, to ensure that the two lanes of traffic turning onto West Peachtree Street in accordance with a green light were stopping and allowing her to proceed across West Peachtree Street.

Gaffron testified that two cars, one in each turn lane, pulled up to the crosswalk and stopped for her, so she believed it was safe to cross the street. She denied that any cars passed in front of her as she was crossing the street. Three other witnesses testified that at least one vehicle passed in front of Gaffron while she was in the crosswalk. For example, Murphy testified that Gaffron “slowed and let [a white van] go by, then she started walking again.” This testimony, coupled with Gaffron’s admission that she did not look back to her left after her initial glance, was sufficient for a rational trier of fact to conclude that Gaffron failed in her duty to exercise ordinary care for her own safety and avoid the consequences of any negligence on the part of others.

Moreover, evidence produced at trial established that Gaffron may have seen the bus yet attempted to go around the front of the bus rather than allow the bus to pass in front of her. This evidence included the blood stain which purportedly corresponded to the location on the roadway where Gaffron’s foot was pinned by the bus tire and Murphy’s testimony that Gaffron left the crosswalk to proceed around the front of the bus.

Under the circumstances of this case, we must conclude that the issues of whether Gaffron maintained a diligent lookout for other vehicles upon entering the crosswalk and otherwise exercised due care for her own safety were proper subjects for the jury’s consideration. See Stroud, supra. “To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” (Citations and punctuation omitted.) Carter v. Central of Ga. R. Co., 149 Ga. App. 867 (256 SE2d 149) (1979). “Only slight evidence need exist from which an inference of comparative negligence may be drawn to authorize such a charge. [Cit.]” Norman v. Williams, 220 Ga. App. 367, 370 (4) (469 SE2d 366) (1996). Accordingly, the trial court did not err in failing to grant Gaf-fron’s motion for a directed verdict and in giving the jury the charges complained of.

2. Gaffron further contends the trial court erred in charging the jury on OCGA §§ 40-6-91 (b), 40-6-92 (a), and assumption of the risk. Gaffron contends the two statutes were inapplicable and the assumption of the risk charge was not authorized by the evidence. We agree.

OCGA § 40-6-91 (b), commonly known as the “dart out” statute, states that “[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.” OCGA § 40-6-92 (a) provides that “[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway.”

Although the trial court’s charges set out a correct statement of the law, they did not conform to the evidence adduced at trial. The evidence is undisputed that Gaffron stepped into the crosswalk and proceeded at least halfway across the intersection, in the crosswalk, before she was struck by the bus. There was no evidence that she “darted out” or suddenly walked or ran into the path of the bus. Moreover, it is clear she had “already and under safe conditions entered the roadway.” While a jury may infer that Gaffron was negligent in failing to observe the bus prior to impact or in attempting to walk around the front of the bus, it is clear that she entered the roadway, using the crosswalk, in accordance with the pedestrian-control signal. This is not the type of situation contemplated by OCGA § 40-6-91 (b) or OCGA § 40-6-92 (a), and the facts presented at trial did not warrant these jury charges.

Moreover, this is not the type of situation contemplated by the assumption of the risk defense. Clearly, if the dart out statute applied or if Gaffron had not been lawfully crossing the intersection, using the crosswalk, in accordance with the pedestrian-control signal, a charge on the assumption of risk would have been warranted. However, under the circumstances, it cannot be said that Gaffron assumed any risk. While a jury may have been authorized to find that Gaffron may have been negligent and should have exercised ordinary care for her own safety, it cannot be said that she assumed the risk that she would be injured under the circumstances she faced in this case. “In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991); compare Norman v. Williams, 220 Ga. App. 367 (1) (469 SE2d 366) (1996). To apply the doctrine of assumption of risk where, as here, Gaffron was crossing the street in a crosswalk in accordance with the pedestrian-control signal is simply beyond the meaning of the doctrine.

“An instruction is erroneous which, although correct as an abstract principle of law, is not supported by evidence. [Cit.]” Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190, 191 (3) (375 SE2d 142) (1988). “As an essential issue for the jury’s determination was the respective negligence of the parties, such a charge may have prejudi-cially affected the jury’s determination.” Silvers v. Kimbell, 219 Ga. App. 482, 484 (465 SE2d 530) (1995). In addition, giving a charge on the assumption of risk may have prompted the jury to find that Gaf-fron’s injuries were somehow the result of her own voluntary assumption of the risk. Beringause, supra. We cannot say that the giving of these instructions was harmless. Thus, instructing the jury on these two Code sections and on the assumption of the risk, which was not authorized by the evidence, constituted reversible error. Id.

3. Gaffron asserts the trial court erred in giving a jury charge on the issue of magnified or exaggerated injuries. We agree.

The trial court charged the jury as follows: “If you believe from all of the evidence in this case that the plaintiff has either magnified or exaggerated her alleged damages or the cause therefore by reason of her interest in this suit, then you have the right and it would be your duty to disregard such evidence insofar as the same is unjustly magnified or unjustly exaggerated.” MARTA concedes the charge was improper, as it has been expressly disapproved. See Mathis v. Watson, 259 Ga. 13 (376 SE2d 660) (1989). However, MARTA argues it is not reversible error because Gaffron only objected on the ground that it was not justified by the evidence and Gaffron did not point out to the trial court that such a charge had been disapproved by the appellate courts. This argument is specious, and, furthermore, MARTA fails to show how the charge was justified by the evidence.

Our review of the evidence presented at trial fails to establish any magnification or exaggeration of injuries on the part of Gaffron. Thus, not only has this charge been disapproved, but it did not conform to the evidence presented at trial. The charge may have improperly suggested to the jury that Gaffron’s testimony in some way might have been magnified or exaggerated, thus contributing to a lower verdict than the jury might otherwise have rendered. Accordingly, we find the giving of this charge in the present circumstances constituted a substantial error which was harmful as a matter of law. See OCGA § 5-5-24 (c).

4. In her last enumeration of error, Gaffron contends the trial court erred in granting MARTA’s motion to quash a notice to produce at trial.

Approximately 20 days prior to trial, Gaffron served a 14 paragraph notice to produce upon MARTA, requesting it to produce various documents including MARTA’s policies, procedures, rules and regulations pertaining to the operation of a bus, as well as its driver’s employment file. Only paragraphs three (MARTA rules, policies, etc.) and fourteen (the bus driver’s personnel file) of the notice are at issue because the remaining documents were provided earlier or dealt with in other pretrial motions. MARTA brought the requested documents to trial, but objected on the ground that the notice to produce sought “discovery” and the discovery period had expired. The trial judge granted MARTA’s motion to quash, basing her ruling on Uniform Superior Court Rule 5.1, the six-month discovery rule.

Decided November 6, 1997

Reconsideration denied November 18, 1997

Thomas W. Malone, Lawrence J. Pond, for appellant.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, for appellee.

Pursuant to OCGA § 24-10-26, a party may request the production of documents at trial by serving a notice to produce on an opposing party. Thus, the fact that the six-month discovery period had expired prior to Gaffron serving her notice to produce is irrelevant. The trial court, therefore, erred in granting MARTA’s motion to quash on this ground. While MARTA argues that its motion to quash the requested material was correctly granted because the notice to produce was overly broad, the trial court did not rule on this ground, and we will not consider this separate ground as Gaffron may correct any deficiencies upon the retrial of this case.

Judgment reversed.

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


author: Ruffin, Judge.

text:
    A97A1708.
    JACKSON v. REED.
    (494 SE2d 52)
   Ruffin, Judge.

William Jackson sued Pamela Stone and her stepfather, George Reed, to recover damages allegedly sustained when Stone, who was driving a pickup truck owned by Reed, rear-ended Jackson. Reed moved for summary judgment on the grounds that he was not vicariously liable for Jackson’s injuries under the family purpose doctrine. The trial court grunted Reed’s motion, and this appeal followed. For reasons which follow, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to Jackson, the non-movant, the evidence shows as follows. On the day of the collision, Stone’s stepfather, Reed, and Stone’s mother, Reed’s wife, were the only two members of the Reed household. Stone, who was 36 years old at that time, had for several months before the collision maintained her own residence elsewhere. Two weeks before Stone’s collision with Jackson, the Reeds began a vacation in Canada. Stone stayed at the Reed home during that time, allegedly to “house sit” and to keep the Reeds’ dogs. When Reed and his wife returned from vacation, Stone returned to her own residence.

Stone owned and maintained her own car, which she kept at the Reeds’ residence while she stayed there. On the morning of the collision, Stone’s car engine would not start. Stone, who knew Reed had two sets of keys to a pickup truck hanging on a peg in his home, decided to use the truck and therefore took the keys.

Stone testified in her deposition that she drove the pickup truck to obtain her paycheck, although Reed testified during his deposition that Stone was not working at the time of the collision.

While returning from her errand, Stone rear-ended Jackson. In their respective depositions, both Reed and Stone testified that Stone had never driven, or asked permission to drive, the pickup truck before that date. Furthermore, Reed and Stone had never discussed the circumstances under which Stone could use the pickup truck. Reed testified, however, that under certain circumstances he would have let Stone use the pickup truck; one of those circumstances being when Stone’s own car was not working and she needed to go somewhere. Stone also testified that she did not think Reed would object to her using the pickup truck.

“In Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose. In order for the family purpose doctrine to be applicable so as to impose vicarious liability on the owner for the negligence of the driver, four factors must be present: 1) the non-negligent defendant must own or have an interest in or control over the automobile; 2) he must have made the automobile available for family use rather than for his business; 3) the driver must be a member of the [non-negligent] defendant’s immediate household;, and 4) the automobile must have been driven with the permission or acquiescence of the [non-negligent] defendant. These factors are not determinative of vicarious liability but are necessary preconditions. Georgia courts have used authority and control as the principal factor in determining whether liability accrues under the doctrine. The four conditions prescribe the parameters of the family purpose doctrine and when the test is to be applied, but the actual test is authority and control.” (Citations and punctuation omitted; emphasis in original.) Wingard v. Brinson, 212 Ga. App. 640, 641 (1) (442 SE2d 485) (1994).

Decided November 6, 1997

Reconsideration denied November 18, 1997

Harriss, Hartman, Aaron, Wharton & Boyd, James A. Secord, for appellant.

Davis & Kreitzer, Steven W. Kreitzer, for appellee.

In this case, the evidence shows the absence of a necessary precondition for the application of the family purpose doctrine, specifically that “the driver must be a member of the [non-negligent] defendant’s immediate household[.]” See id. Jackson does not dispute that Stone was a 36-year-old adult who normally lived away from the Reed home. He also does not dispute that Stone maintained her own car, which was with her at the Reed home while she stayed there, and that Stone only drove Reed’s pickup truck on the day of the collision because her car had mechanical problems. These facts render the family purpose doctrine inapplicable to impose vicarious liability on Reed because it is uncontroverted that Stone was not a member of Reed’s immediate household. See Greene v. Jenkins, 224 Ga. App. 640, 641 (2) (481 SE2d 617) (1997); Wingard, supra at 641; Esco v. Jackson, 185 Ga. App. 901 (1) (366 SE2d 309) (1988). The mere loan of the pickup truck by Reed to Stone, who was not a family member of the same immediate household within the meaning of the family purpose doctrine, would in principle be the same as if Reed had loaned the pickup truck to a friend to go on a mission solely for the benefit of the friend and would make Stone a mere bailee for whose negligence Reed would not be liable. See Wingard, supra at 641. Cf. Duckworth v. Oliver, 112 Ga. App. 371 (145 SE2d 115) (1965). Therefore, the trial court correctly granted summary judgment to Reed on this issue.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.