author: Banke, Presiding Judge. Benham, Judge,

text:
    74065.
    GRESHAM v. DEPARTMENT OF HUMAN RESOURCES.
    (360 SE2d 736)
   Banke, Presiding Judge.

The Georgia Department of Human Resources sued the appellant pursuant to the Child Support Recovery Act, OCGA § 19-11-1 et seq., seeking to require him both to support an illegitimate minor child he had allegedly fathered and to reimburse the state for $6,231 in public assistance payments the department had allegedly made on the child’s behalf in the past. Almost a year before the suit was filed, the appellant had signed a written agreement with the department to submit to human leukocyte antigen (HLA) blood testing to determine whether he was in fact the child’s father. In return, the department had agreed not to pursue any support action against him in the event the test results excluded the possibility that he was the child’s father. Both parties further agreed that the test results would be admissible as evidence in future court proceedings, “without objection for whatever probative value they may have [and] without the necessity of any accompanying testimony by any person with respect to said test results.” Finally, it was agreed by the appellant that in the event the test results established to a probability of 95 percent or more that he was the child’s father, they would be deemed conclusive on that issue.

The blood test established to a probability of 98.88 percent that the appellant was the child’s father. Accepting these results as conclusive on the issue of paternity pursuant to the terms of the agreement, the trial court denied the appellant’s demand for a jury trial in the present action and, following an evidentiary hearing, entered judgment in favor of the department. This appeal followed. Held:

1. The appellant contends that the trial court erred in denying his demand for a jury trial and in treating the test results as conclusive on the issue of paternity. We agree that to the extent the agreement purported to preclude the appellant from contesting paternity or from demanding a jury trial in any future action the department might bring to enforce his child-support obligations, it was contrary to public policy and unenforceable. Accord CCC Bldrs. v. Augusta, 237 Ga. 589, 591 (229 SE2d 349) (1976). Cf. 17 AmJur2d Contracts, § 193, p. 564. The court’s actions in this regard must, however, be considered harmless under the circumstances of the present case, for the appellant did not offer any evidence tending either to cast doubt on the test results or to show that he was not in fact the child’s father. The test results themselves were clearly admissible into evidence under the terms of the agreement, which, on this point, was fully enforceable. Cf. State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977) (holding that the results of a lie detector test are admissible in evidence where the parties have entered into an express stipulation to that effect). As the test results constituted the only evidence introduced or offered on the issue of paternity, it follows that the department would have been entitled to judgment as a matter of law on this issue even had it been fully tried before a jury.

2. The appellant contends that the trial court erred in refusing to “acknowledge that the blood tests . . . was [sic] disputed” and in failing to give him an opportunity to obtain additional tests. While the appellant’s counsel maintained throughout the trial of the case that the results of the tests were disputed, he offered no evidence or explanation whatever tending to show the basis for the dispute. The agreement between the parties specified that “[i]n the event that the test results are disputed, additional testing will be at the expense of the requesting party.” The appellant did not obtain any such additional tests prior to trial, nor did he move for a continuance to obtain additional time to do so. Consequently, this enumeration of error presents nothing for review.

3. The appellant contends that the trial court erred in failing to provide him additional time for discovery. However, as no motion or request for additional discovery was made prior to trial, and as no showing has ever been made of the need for additional discovery, this enumeration of error also presents nothing for review.

4. The appellant contends that the department was not entitled to sue for reimbursement of the public assistance payments made on the child’s behalf without first giving him notice, pursuant to the Supreme Court’s decision in Burns v. Swinney, 252 Ga. 461 (314 SE2d 440) (1984), of its intention to hold him accountable for such payments. We find Burns to be inapplicable under the facts of the present case. There, the custodial parent had been awarded custody of the child pursuant to the terms of a divorce decree which had placed no obligation on the defendant non-custodial parent to pay child support. The Supreme Court held that under such circumstances the state was obliged, pursuant to OCGA § 19-11-10 (c), to notify the defendant of her duty of support and of the fact that an application for public assistance benefits had been made on the child’s behalf prior to seeking a judgment against her for reimbursement of such benefits. In the present case, there was no court order in existence which could have been interpreted as relieving the appellant of his duty to support the child; and since the appellant did not in any event acknowledge paternity, it presumably would have availed him nothing to have received written notice from the department of its intention to hold him accountable for such support. Moreover, if such notice was required, it was effectively provided by the language of the agreement entered into by the appellant and the department a year before the suit was filed, wherein the department clearly manifested its intention to hold the appellant accountable for the support of the child in the event the blood tests showed him to be the child’s father to a probability of at least 95 percent. For these reasons, we hold that the department was properly allowed to obtain reimbursement in the present action for public assistance payments previously made on the child’s behalf.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Sognier and Pope, JJ., concur. Birdsong, C. J., Carley and Benham, JJ., dissent. Beasley, J., dissents in judgment only.

Benham, Judge,

dissenting.

While I concur with the majority as to Divisions 2, 3, 4, and 5, and that portion of Division 1 that says the agreement is void as against public policy and that the test results are admissible, the consensus dissolves as to that portion of Division 1 that says that the denial of the right to a jury trial is harmless error.

The analysis given by the majority in Division 1 is excellent insofar as it shows that the trial court erred in ruling that appellant waived his right to a jury trial. However, the majority opinion jumps the tracks when it assigns the trial court’s denial of a jury trial to the category of harmless error.

The right to a jury trial is firmly entrenched in the framework of our system of American jurisprudence, and its hallowed place is evidenced by OCGA § 9-11-38, which states: “The right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.”

The above-mentioned Code section takes its lead from Art. I, Sec. I, Par. XI of the 1983 Georgia Constitution: “The right to a trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” A determination as to paternity has lifelong consequences, not only legally, but also financially, morally, and socially. Therefore, in meeting our commitment to assure that children born out of wedlock are supported, we must not allow the emotions that attend such proceedings to prevent us from assuring that statutorily mandated procedural safeguards are accorded the litigants.

The majority asserts that the trial court’s erroneous refusal to afford appellant his right to a trial by jury was harmless because appellant offered no evidence to cast doubt on the test results or to show that he was not the child’s father and because the test results conclusively showed paternity. I disagree with both assertions.

While it is true that appellant did not offer evidence, the inquiry must not stop there. A review of the record shows that the hearing conducted in the trial court was so infected with irregularity as to amount to a denial of due process of law. For instance, appellant had filed motions which were not included in the file available to the trial judge. Although the trial court was informed that the case had been assigned to another judge and that the motions were most likely in the possession of that other judge, the hearing proceeded. The motions included a challenge to the jurisdiction of the trial court over appellant, but appellant received no hearing on that motion or on the others. Appellant’s counsel indicated several times that he had not had enough time to complete preparation for the trial, having seen the blood test agreement for the first time only ten days before trial. Appellant’s counsel also informed the trial court that he had been under the impression that the hearing was of a preliminary nature, and was not the trial of the case. Considering all the irregularity tainting the hearing which produced the judgment now on appeal, I cannot agree that the denial of appellant’s fundamental right to trial by jury, a denial based on an error, was harmless.

As to the assertion in the majority opinion that the evidence of record demanded the judgment, I once again turn to the record. Although the trial court advised appellee’s counsel that it would be necessary to have the blood test results marked as evidence “and made a part of the record,” appellee’s counsel took only half of the advice: the test results were marked but not thereafter tendered. Appellant’s counsel’s objection to the entry of judgment on the ground that the test results had not been admitted into evidence before appellee rested was countered by the trial court’s observation that the test results were attached to the pleadings. Of course, pleadings are not evidence, and where the allegations of the pleadings have been denied, the pleadings and attachments thereto do not take the place of properly admitted evidence. See Arrington v. Horton, 48 Ga. App. 272 (1) (172 SE 677) (1934).

After this case was docketed in this court, appellee’s counsel moved the trial court, purportedly pursuant to OCGA § 5-6-41 (f), to make the test results a part of the record. I find the trial court’s order granting that motion defective for at least two reasons.

One is that there is nothing whatever in the record to support the assertion in the motion and in the trial court’s order, prepared by appellee’s counsel, that the parties had mistakenly believed that the evidence had been admitted. In fact, appellant’s counsel informed the trial court that the test results had not been admitted into evidence.

Decided July 16, 1987

Rehearing denied July 31, 1987

Lewis R. Slaton, District Attorney, Rita D. Coleman, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary Foil Russell, Assistant Attorney General, for appellee.

The second reason is that appellee and the trial court are using OCGA § 5-6-41 (f) for a purpose not provided for by that section, to introduce after the entry of judgment the evidence essential to the entry of that judgment. The statute is for the purpose of making the record speak the truth, not for supplying fatal deficiencies after the fact. See Ray v. Standard Fire Ins. Co., 168 Ga. App. 116 (1) (308 SE2d 221) (1983). It is clear from the record of this case that the essential evidence was never admitted into evidence in the trial court and could not legally be the basis for that judgment. Consequently, it cannot be said that the denial of appellant’s right to a jury trial was harmless because the evidence demanded the judgment.

As early as 1888, in Covington v. Western &c. R. Co., 81 Ga. 273 (6 SE 593), our Supreme Court ruled that when a question of negligence was removed from the jury’s consideration, even though the evidence authorized the verdict, it was reversible error. As recently as 1980, we ruled that a failure to submit an issue to the jury was reversible error. Nestlé Co. v. J. H. Ewing & Sons, 153 Ga. App. 328 (1) (265 SE2d 61) (1980). Therefore, I would reverse the trial court and grant a new trial.


source: Caselaw Access Project

author: Beasley, Judge. Sognier, Judge,

license: Public Domain

text:
    74148.
    THE STATE v. HODGES et al.
    (360 SE2d 903)
   Beasley, Judge.

The trial court granted appellees’ motion to suppress evidence, in a proceeding pursuant to OCGA § 17-5-30, after concluding that the investigative stop of appellees was not supported by an articulable suspicion, in violation of the Fourth Amendment. The state appealed. Although Hodges ostensibly relied below on both federal and state constitutional provisions, only the federal ground is involved here.

The search and seizure did not cross Fourth Amendment federal constitutional bounds. The evidence shows that the two police detectives had an articulable suspicion to detain the occupants of the car and lawfully seized contraband after looking into the car with a flashlight in the brief course of their investigatory activity.

It was about 9:30 at night, and the detectives, both of whom had many years’ experience in law enforcement, drove in a certain shopping center on patrol because several business owners had asked the police to keep a check out due to problems particularly in this shopping center with young people and with vandalism. At this hour only the Dairy Queen was open. The detectives noticed a sole car parked in an unlit part of the parking area, at a location where a shopper at West’s Lumber Company would park during business hours. It was uncommon to see a lone car parked at the center at night, and they thought at first it was abandoned.

After they turned to ride up to the car, their car lights showed two occupants, who looked at them. The driving detective activated the blue dashboard light to announce their identity. The reaction of the two young males (both age 17) to the symbol of the presence of the police was telling. The detective car was about 15 feet to 20 feet away at this moment. “As soon as they saw that blue light, the driver’s eyes got real wide and they began getting very nervous.” They frantically began pushing something underneath the seat very quickly. According to the detectives, the presence of the two youths in a darkened car in a dark area away from any activity or lights in a problem area first raised a suspicion, as there was no apparent legitimate reason for them to be there. That suspicion was enhanced by the commotion which the police presence prompted.

The two detectives pulled up next to the car and exited their own because the occupants of the other car did not. The detectives approached, one on each side of defendant’s car, and asked them to exit also. Their very hurried exit and rapid movement away from the car as though to draw attention away from it added to the suspicion of criminal activity, in the minds of the detectives. When asked what their business was there, the young men said they were looking for a place to eat but said nothing about the Dairy Queen. There were few if any cars in the parking area for the Dairy Queen, which was about 70’ to 80’ away. It was uncommon for a car to park in the rear of West Lumber Company and its occupants to walk to the Dairy Queen.

While one detective momentarily detained the two youths, who by now were about 30 feet to 40 feet away from their car, the other detective looked in the passenger side of their vehicle with his flashlight and saw on the floorboard and in an ashtray what his long experience on the narcotics squad led him to believe were marijuana roaches. He walked around to the driver’s side and saw through the window a white paper protruding from under the seat where it had appeared the occupants were pushing something. Having seen the marijuana, he reached in and retrieved the paper, which contained what he knew as blotter acid (LSD). Throughout this encounter, a beeper pager in the car was sounding and displaying telephone numbers continually.

The defendants were then arrested.

The United States Supreme Court has said: “In Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)] the Court first recognized ‘the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause.’ Michigan v. Summers, 452 U. S. 692, 698 (1981) . . . [T]he Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. 392 U. S., at 22 . . . When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure [of person or property] based on less than probable cause ... In Terry, we described the governmental interests supporting the initial seizure of the person as ‘effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ 392 U. S., at 22.” United States v. Place, 462 U. S. 696, 702-704 (103 SC 2637, 77 LE2d 110) (1983). See also United States v. Hensley, 469 U. S. 221, 226 (105 SC 675, 83 LE2d 604) (1985), and cases cited therein, regarding automobile stops and detention of occupants.

“United States v. Brignoni-Ponce, 422 U. S. 873, 881-882 (1975), was unequivocal in saying that reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop . . . The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. See, e.g., United States v. Brignoni-Ponce, supra at 881-882; Adams v. Williams, supra at 146 . . . [T]o justify [a less-than-probable-cause] seizure an officer must have a reasonable suspicion of criminal activity based on ‘specific and articulable facts . . . [and] rational inferences from those facts. . . .’ Terry v. Ohio, 392 U. S. at 21. See also Brown v. Texas, 443 U. S. 47, 51 (1979).” Florida v. Royer, 460 U. S. 491, 498, 512 (103 SC 1319, 75 LE2d 229) (1983).

Our Georgia appellate courts have explained these concepts in applying the United States Supreme Court interpretations of the Fourth Amendment parameters: “ ‘It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.’ Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294). It is also clear that what is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. Brisbane [supra, at 342]. Each case depends on its own facts. ‘The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.’ [Cit.]” Allen v. State, 140 Ga. App. 828, 830 (1) (232 SE2d 250) (1976). See also State v. Purdy, 147 Ga. App. 340 (248 SE2d 683) (1978).

Here there was an articulable suspicion, and it was described at the hearing by the two officers who were functioning in an alert manner to protect the shopping center from criminal activity. As in Jones v. State, 156 Ga. App. 730 (275 SE2d 778) (1980), it was a founded suspicion and the seizure of contraband which was in plain view, and was observed by the officer after the brief detention commenced, was valid. As in Brisbane v. State, supra, the circumstances created a justifiable suspicion of the conduct of the appellees so as to warrant the limited investigative detention, and the officers acted reasonably under the totality of the circumstances. See also Anderson v. State, 123 Ga. App. 57, 61 (179 SE2d 286) (1970); Tanner v. State, 114 Ga. App. 35 (150 SE2d 189) (1966).

Concerning seizure of the property, the marijuana and LSD, “[p]robable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law.” Williams v. State, 167 Ga. App. 42, 43 (1) (306 SE2d 46) (1983); Parker v. State, 161 Ga. App. 37, 38 (288 SE2d 852) (1982); Fuqua v. State, 142 Ga. App. 632, 633 (236 SE2d 685) (1977). Here the circumstances were measurably enhanced by the roaches in plain view. These the officer had a right to see because he may “visually search the entirety of a car from his vantage point on a street or roadside,” Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986), and the public parking area of a shopping center would be no different in this regard.

Further, as stated in Galloway, supra, “[t]he viewing need not be motivated by any articulable suspicion.” Viewing through a car window does not constitute a search. Catchings v. State, 256 Ga. 241, 247 (10a) (347 SE2d 572) (1986). And since the roaches, which were contraband, were in plain view and thus seizable, reaching into the interior of the car thereafter to retrieve the suspect white paper was not an unpermitted warrantless search, since the exigencies of the case, including that this was an automobile, justified it. Catchings, supra at 248 (10b).

The use of a flashlight to expose to better light what would otherwise be visible to one who simply looks through the car window does not make the viewing any more of a search or any less of a plain view. United States v. Lee, 274 U. S. 559, 563 (5) (47 SC 746, 71 LE 1202) (1927), cited with approval in Katz v. United States, 389 U. S. 347, 351 (88 SC 507, 19 LE2d 576) (1967); Redd v. State, 240 Ga. 753, 754 (1) (243 SE2d 16) (1978); State v. Scott, 159 Ga. App. 869, 870 (1) (285 SE2d 599) (1981). As said in Marshall v. United States, 422 F2d 185, 189 (5th Cir. 1970): “The plain view rule does not go into hibernation at sunset.”

The order granting the motion to suppress the evidence is reversed.

Judgment reversed.

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

Sognier, Judge,

dissenting.

I respectfully dissent. My detailed examination of the transcript discloses the following facts, as testified to by the two police officers involved in this case. After noting what the officers believed to be an abandoned vehicle and approaching to check the vehicle, the officers observed two persons (appellees) in the car. The officer driving the police car turned on his blue light and stopped “16 to 20 feet” from appellees’ car. The officers exited their vehicle and Lieutenant Maloney advised appellees to exit their car; appellees exited their car and walked off in a different direction. According to Lieutenant Maloney, “[ic]e never had a chance to get to the vehicle at that point.” (Emphasis supplied.) The two officers then stopped appellees 35 to 40 feet from their car. After checking appellees’ identification and learning that they were trying to decide where to eat, Lieutenant Maloney decided to check appellees’ car while the other officer detained appellees. Maloney testified that he had no idea what he was looking for. It was at this point that he looked in appellees’ car for the first time, and by use of his flashlight observed some “roaches” in the ash tray and on the back seat. The officer then searched the entire passenger compartment of the car and picked up a letter-sized white envelope from the floor under the front passenger seat. The officer opened the envelope and found an orange card with perforations in it which he recognized as “blotter acid” (LSD). Both officers testified that they had no reports of suspicious activity in the area on the night in question, that appellees were not committing any illegal act, and that at no time did appellees commit any unlawful act in their presence.

“Articulable suspicion” has no application to a general search; rather, it is the standard applied to determine if a brief, “Terry-type” stop of an individual, including a pat-down for weapons, is a justifiable intrusion on the individual’s privacy. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). Further, Terry limits any “search” to a pat-down of the outer clothing of an individual if the officer believes the person detained is armed and dangerous. Here, the officer who searched appellee’s vehicle testified that he and his partner had no fear whatsoever of appellees, did not believe they were armed, and did not even conduct a pat-down to determine if appellees were armed. This court has held that a Terry stop is a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification, licensing of a driver and a vehicle if appropriate, a protective pat-down of the outer surface of clothing for weapons if the officer has reasonable apprehension that the person is armed and dangerous, and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. State v. Avret, 156 Ga. App. 527, 528 (1) (275 SE2d 113) (1980).

In the instant case the officers had an articulable suspicion which justified stopping appellees to check their identification and determine what they were doing in the area. Once those facts were ascertained, any further search was limited to a pat-down for weapons. Terry v. Ohio, supra. “An automobile in which contraband is concealed and transported may be searched without a warrant if police have probable cause for believing the automobile to be searched contains contraband.” Chambers v. Maroney, 399 U. S. 42 (90 SC 1975, 26 LE2d 419); Avret, supra. The right to search and the validity of the seizure are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law. Id. Here, the officer who searched appellees’ car had no probable cause to believe that the car contained contraband. This is evidenced by the officer’s testimony that he had no idea what he was looking for. Thus, an articulable suspicion sufficient to authorize a Terry stop was present here, but probable cause to search the car was not. Avret, supra. The argument that the roaches were in “plain view” has no application here, because the plain view doctrine only applies where police are conducting a lawful search. Coolidge v. New Hampshire, 403 U. S. 443, 467 (11) (91 SC 2022, 29 LE2d 564). Thus, using the plain view doctrine to justify the search is a classic example of “bootstrapping,” since the plain view doctrine does not apply until a lawful search is in progress. The Supreme Court also held in Coolidge that plain view alone is never enough to justify the warrantless seizure of evidence; the discovery of evidence in plain view must be inadvertent. Since the officer here had no probable cause to search the vehicle and the discovery of the roaches was anything but inadvertent, I find the search and seizure here unlawful.

Decided July 16, 1987

Rehearings denied July 31, 1987

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellant.

Kenneth S. Waldrop, Ivan A. Pearlberg, for appellees.

In a hearing on a motion to suppress the judge sits as a trier of fact; credibility and weight, and the resolution of conflicts within the testimony of a witness (or witnesses), are matters to be determined by the judge. State v. Betsill, 144 Ga. App. 267, 268 (2) (240 SE2d 781) (1977). In the absence of evidence demanding a finding contrary to the judge’s determination, this court will not reverse the ruling granting a motion to suppress. Id. See also Burnette v. State, 168 Ga. App. 578, 579 (1) (309 SE2d 875) (1983); Branch v. State, 182 Ga. App. 818, 819 (1) (357 SE2d 136) (1987). I find no evidence demanding a finding contrary to the judge’s determination. Accordingly, I would affirm.

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


author: Sognier, Judge. Benham, Judge,

text:
    74171.
    LEAR SIEGLER, INC. v. STEGALL.
    (360 SE2d 619)
   Sognier, Judge.

Stegall brought an action against Lear Siegler, Inc. to recover damages arising out of a collision between the automobile driven by Stegall and the temporary rental vehicle furnished by Lear Siegler to, and driven by, its district sales manager, Fugate. Fugate, who was on his way to Lear Siegler’s office at 7:35 a.m. when the collision occurred, was arrested at the scene and charged with driving under the influence of alcohol. Although Fugate had previously been convicted of DUI, it is uncontroverted that appellant had no actual knowledge of Fugate’s poor driving record. Stegall’s complaint alleged causes of action against Lear Siegler for respondeat superior, negligent entrustment, and negligent hiring selection. The trial court granted Lear Siegler’s motion for summary judgment with respect to the first two causes of action and denied summary judgment in favor of Lear Siegler on the negligent hiring claim. The ruling was certified for immediate review and we granted Lear Siegler’s interlocutory appeal.

As no cross-appeal was filed by Stegall as to the remaining issues covered in the trial court’s order, this appeal involves only the propriety of the trial court’s denial of summary judgment to appellant on appellee’s claim of negligent hiring. We agree with appellant that summary judgment should have been granted. In reaching our decision, we have reviewed the case law pertaining to negligent hiring and have necessarily determined that Hines v. Bell, 104 Ga. App. 76 (3) (b) (120 SE2d 892) (1961), although never specifically overruled, has not been followed in subsequent cases and thus has been implicitly overruled. We therefore explicitly overrule Hines insofar as it holds that actual knowledge by an employer of an employee’s dangerous propensities is a necessary element of a claim for negligent hiring.

Under the facts of this case, however, we agree with appellant that the theory of negligent hiring is conceptually inapplicable. Although it is true that the position for which appellant had recently hired Fugate would involve a great deal of driving throughout the sales district, after an orientation period of two to three weeks, it is uncontroverted that Fugate had not yet embarked on those duties and the record shows without contradiction that at the time the collision occurred, Fugate was neither at work nor traveling in the course of the employment for which he was hired, nor was his contact with appellee a function of his employment or appellant’s business. Rather, as do most employees, Fugate was driving from his home to his employer’s place of business, on his way to begin his second day of work.

An examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor’s working hours or the employee was acting under color of employment. See, e.g., Slater v. Canal Wood Corp., 178 Ga. App. 877 (2) (345 SE2d 71) (1986) (tortfeasor hauling logs pursuant to a contract with Canal Wood); Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701 (2) (344 SE2d 512) (1986) (tortfeasor employee attacked customer at service station); Southern Bell &c. Co. v. Sharara, 167 Ga. App. 665 (1) (307 SE2d 129) (1983) (plaintiff attacked by tortfeasor who was at her home installing a telephone); Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876 (3) (298 SE2d 600) (1982) (tortfeasor stole art work and became violent while selling securities); Jester v. Hill, 161 Ga. App. 778 (2) (288 SE2d 870) (1982) (tortfeasor misrepresented insurance coverage to customer.) While not apparent from the opinion, the record in that case reveals the incident in Cherry v. Kelly Svcs., 171 Ga. App. 235 (2) (319 SE2d 463) (1984), also occurred during the tortfeasor employee’s working day.

Furthermore, but for the fact that he was driving an automobile provided by appellant, Fugate’s posture at the time of the collision was no different from any other employee driving to work. We decline to extend the parameters of the cause of action for negligent hiring so as to require every business whose employees drive to work to investigate those employees’ driving records before hiring, or expose themselves to liability.

Since the theory of negligent hiring has no applicability to these facts, the issue whether appellant sufficiently fulfilled its duty to exercise ordinary care in the hiring of Fugate is not material to the resolution of this case. As no material issue of fact remains for jury resolution, appellant was entitled to judgment as a matter of law, and the trial court’s denial of summary judgment to appellant on this issue was erroneous and must be reversed. See Cox Communications v. Lowe, 173 Ga. App. 812, 815 (328 SE2d 384) (1985).

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., and Carley, J., concur. Beasley, J., concurs in the judgment only. Pope and Benham, JJ., dissent.

Benham, Judge,

dissenting.

While I agree fully with the majority that Hines v. Bell, 104 Ga. App. 76 (3c) (120 SE2d 892) (1961), must be overruled, I cannot agree with the majority’s reversal of the trial court’s denial of summary judgment to appellant on the ground that negligent hiring is not applicable in the case at bar.

The majority limits the application of a claim for negligent hiring to situations in which the tortious act occurred during the tortfeasor’s working hours or while the employee was acting under color of employment.

The timing of a tort is not as important in a negligent hiring case as it is in a case relying upon the theory of respondeat superior, where the employer’s liability is predicated upon the fact that the employee was acting within the scope of employment when the tortious act was committed. Where an employer/employee relationship exists but the tortious act occurs while the employee is acting outside the scope of his employment, the employer may be liable for negligent hiring if by dint of the hiring the employee/tortfeasor was placed in a position to harm others. The basis for the employer’s liability is the placement of the tortfeasor in a position to do the harm that caused the third party’s injury, not when the tort occurred.

I believe that an employer ordinarily has no duty to inquire into the background of a potential employee; however, when matters are brought to the employer’s attention which should cause it to make inquiry, or when the employee’s position is one which as a direct consequence of the hiring places the employee in circumstances which pose a potential for the infliction of harm upon others, then it is incumbent upon the employer to ask the potential employee about the employee’s background insofar as the employee’s suitability for the particular duties is involved. Except in plain and palpable instances, it is for a jury to determine whether the employee’s position is one to which the duty of inquiry attaches and, if so, whether the extent of the employer’s inquiry was sufficient.

Decided July 16, 1987

Rehearing denied July 31, 1987

R. Chris Irwin, for appellant.

David E. Tuszynski, Arnold Wright, Jr., Marvin A. Devlin, for appellee.

In the case at bar, appellant hired the tortfeasor, Fugate, to fill a position that, upon the completion of a two to three-week orientation period, called for a “great deal” of traveling by automobile throughout his assigned territory, Alabama, Georgia, and North and South Carolina. Appellant admitted that prior to hiring Fugate it did not ask him about his past driving record but did ascertain that Fugate had a valid driver’s license. During pre-trial discovery, Fugate divulged that prior to his employment with appellant he had been convicted of driving under the influence and, in a separate incident, had been involved in a one-car collision.

Inasmuch as appellant, in the selection of an employee who as a direct consequence of his hiring would routinely be driving an automobile, “may have been duty bound to exercise a greater amount of care to ascertain its employee [was a good driver]” (C. K. Security Systems v. Hartford &c. Indem. Co., 137 Ga. App. 159, 161 (223 SE2d 453) (1976)), I believe the trial court was correct in denying appellant’s motion for summary judgment on appellee’s negligent hiring claim. When appellant hired Fugate, it knew his job would entail a great amount of driving and, in point of fact, provided him with an automobile. It is up to the jury to determine whether appellant’s ascertainment that Fugate had a valid driver’s license sufficiently fulfilled its duty to exercise ordinary care.

The majority’s fear that the denial of summary judgment to appellant in this case would expand the potential for negligent hiring liability to employers whose employees drive to work is not well founded. It is only an employer whose employee, as a direct consequence of the hiring, is placed in a position in which there exists the potential for the infliction of harm upon others that need beware. That does not include an employer whose employees drive their personal vehicles to work, because the mode of transportation they have chosen is not related to the position for which they were hired.

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


author: Deen, Presiding Judge. Pope, Judge,

text:
    74222.
    74223.
    LOPEZ v. THE STATE. OYOLA v. THE STATE.
    (360 SE2d 722)
   Deen, Presiding Judge.

Jose Luis Lopez and Ruben Oyóla were jointly tried and convicted by a jury of trafficking in cocaine. Each has filed a separate appeal.

On June 9, 1986 Lopez and Oyóla were en route from Miami to Chicago when they were stopped on 1-75 in Gordon County at 6:45 a.m. by Georgia State Patrol Trooper M. S. Ralston, who told them their automobile had either a dim or nonfunctioning taillight. Lopez was a 21-year-old native of Puerto Rico with a tenth grade education who spoke very little English. The automobile belonged to his cousin, Miguel Quieles, a Miami resident, who had loaned him the car to visit Chicago. Oyóla, also a native Puerto Rican, was 37 years old, a college graduate, bi-lingual and had a background of jobs in social services and as a consultant to police and government agencies in the human relations and community organization fields. He had also worked as an insurance and private investigator. He testified that Quieles had hired him at his daily rate as an investigator ($25 per hour or $250 per day, plus expenses) to accompany Lopez because he was familiar with Chicago and the route to take, and that he was planning to fly back after they arrived because he had previously made plans and purchased the tickets to visit his father in Puerto Rico over Father’s Day weekend. He and Lopez started out between 5:00 and 6:00 p.m. the day before, and he had driven until shortly before the car was stopped in Gordon County.

Trooper Ralston asked for Lopez’ driver’s license and the automobile registration, which Lopez produced, and verified them as valid. He then spoke to Oyóla and questioned both men as to their destination and starting point. After issuing a warning for the mechanical defect he radioed the Sheriff’s Department for a backup, and asked if the men would consent to his searching the car. Both agreed orally, and Lopez also read and signed a Florida Highway Patrol consent to search form printed in Spanish. Both men unlocked their luggage voluntarily while the car and trunk were being searched and were in Trooper Ralston’s words “very cooperative.” Trooper Ralston then removed a plastic vent on each of the vehicle’s doorjambs, thereby discovering in the left rear quarter panel five packages of a white powder, subsequently analyzed to contain over ten pounds of 75% pure cocaine. Appellants, although they professed no knowledge of the cocaine, were arrested, indicted, tried and convicted of being in actual possession of cocaine in violation of OCGA § 16-13-31 (a). Held:

1. Both Lopez and Oyóla contend that the trial court committed reversible error in denying their motions to suppress illegally seized evidence. The dispositive issue is whether Lopez and Oyóla consented to the search of the vehicle freely and voluntarily, and not as a result of coercion, duress, or deceit. State v. Rezvani, 181 Ga. App. 328 (352 SE2d 197) (1986). We conclude that the totality of the circumstances supported the trial court’s determination that both Lopez and Oyóla freely and voluntarily consented to the search, and the trial court thus properly denied the motions to suppress.

The state trooper was justified in stopping the vehicle, as it had an improperly functioning taillight. Thereafter, the officer was given express consent by both Lopez and Oyóla to search the automobile. Consent was even given to open a briefcase by forcing it open. The trooper removed the plastic vent on the door-jambs by removing one screw, and then was able to see the packages of cocaine hidden in the left rear quarter panel of the car. The door paneling was dismantled only after the cocaine was already detected, and then only because it was necessary to retrieve the cocaine.

Here, the trooper testified that what he did in this case was in keeping with what he had learned at a Drug Enforcement Agency seminar related to narcotics trafficking. He testified that in the past he had stopped around 40 cars that he had thought suspicious under the “drug courier profile.” He stated further that out of those stops, everyone stopped had consented to a search of the vehicle and 14 or 16 drug trafficking cases had resulted.

The trial court has a discretion under all the facts in deciding questions of suppression of evidence. We cannot say as a matter of law that the search was overly intrusive. Therefore, the trial court’s decision not to suppress the evidence, based on the totality of the circumstances, is affirmed.

2. Oyóla contends that the evidence was insufficient to support his conviction. Oyola’s explanation was that his involvement was only a matter of employment. Quieles and Lopez were cousins; both wanted to go to Chicago, Quieles for business purposes and Lopez for vacation (although at one time Lopez stated his purpose was to look for a better job). Quieles intended to fly to Chicago and have Lopez drive his car and meet him there. Because Lopez was not proficient with the English language and did not know the route to Chicago, Quieles had hired Oyóla to accompany Lopez, agreeing to pay Oyóla at his regular private investigator’s rate of $250 per day. Quieles had tendered the keys to his car actually to Oyóla, and not Lopez. Upon their arrival in Chicago, Oyóla intended to visit his brother for a day or two and then fly to San Juan, Puerto Rico, to look for his estranged father.

Despite our efforts to view this proffered explanation of events as reasonable, we still find it farfetched that Oyóla would be employed to provide a service that could have been accomplished with a mere road map. The web of circumstantial evidence adduced authorized a rational trier of fact to find Oyóla guilty beyond a reasonable doubt, and that body of evidence did not have to exclude the incredible hypothesis proposed by Oyóla. Robinson v. State, 168 Ga. App. 569 (309 SE2d 845) (1983).

“If he is not guilty, he is an unfortunate wretch in the grip of most merciless circumstances. We are willing to take the word of the jury for his guilt, based on these circumstances, and leave the case as we find it. It is not the strongest, but strong enough.” Wilson v. State, 55 Ga. 324, 325 (1875).

3. We have considered the remaining enumerations of error in both appeals and find them to be without merit.

Judgments affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Sognier and Beasley, JJ., concur. Carley, J., concurs in the judgment only. Pope and Benham, JJ., dissent.

Pope, Judge,

dissenting.

While the Georgia Supreme Court has recognized that “ ‘the [Sjtate can practice preventive therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness,’ ” it further warns that such stops “should not be used as a subterfuge to detain citizens for the purpose of searching their automobiles when they are under no founded suspicion.” Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294) (1974). I am troubled in the instant case by the lack of an underlying “founded suspicion” motivating both the stop and the overzealous search of appellants’ car.

“The United States Supreme Court has held that ‘when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981).” Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986); Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986). Here, according to Trooper Ralston’s testimony, there was no custodial arrest, lawful or otherwise, preceding the search. Moreover, since the evidence showed that sunrise had occurred over an hour before appellants were stopped because of the allegedly malfunctioning taillight (so there was no real need to drive with headlights and only about half the cars on the highway were using them at that time), the question arises as to whether the traffic stop was actually only a pretextual reason to justify a search and seizure under the Fourth Amendment.

“Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 442 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only ‘unparticularized suspicion or “hunch,” ’ 392 U. S. at 27 . . .” United States v. Smith, 799 F2d 704, 707 (11th Cir. 1986). “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. We have repeatedly held that 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.” (Citations and punctuation omitted.) Coley v. State, 177 Ga. App. at 670, supra. See also Smith v. State, 165 Ga. App. 333 (1) (299 SE2d 891) (1983).

In the instant case Trooper Ralston testified on cross-examination that after checking Lopez’ driver’s license and the car’s registration (both of which were valid) he decided to search the car and radioed for backup assistance. When asked what information he had that aroused his suspicion concerning appellants he replied: “Conflicting statements, characteristics — . . .At one period of time there was a conflict between who had authorization or who had consent from the cousin of defendant Lopez to drive the car, to take the car.” Asked what other factors he considered, Trooper Ralston answered: “Two persons traveling north from a distribution center, Miami. ...” However, he admitted he did not search every car from Miami. Although he could not remember what job Lopez had told him he had, Trooper Ralston had some doubts as to Lopez’ ability to be able to afford a vacation. He also noted that the automobile was registered to a third party, and that appellants were traveling together, although they had known each other only three weeks, to a destination that one of the persons was totally unfamiliar with. However, there were no physical acts by appellants, such as nervousness or hesitation in responding to his questions, which led him to believe they were narcotics traffickers.

Upon further cross-examination, Trooper Ralston explained that he had learned at a Drug Enforcement Agency seminar two months earlier what factors and characteristics to look for in narcotics trafficking; that since that time he had stopped between 35 and 40 vehicles he considered suspicious under the “drug courier profile,” most of which were apparently operated by blacks and Hispanics; that out of those stops he had made 14 or 16 drug trafficking cases; and that everyone stopped had consented to a search of the vehicle.

In my view, the “suspicious” characteristics cited by Trooper Ralston, based on the vaguest of “profiles,” are so negligible as to be nonexistent. In contrast, the airport drug courier profile is held to a much more encompassing standard of suspicious actions. See, e.g., Conley v. State, 180 Ga. App. 662 (350 SE2d 45) (1986); Moran v. State, 170 Ga. App. 837 (318 SE2d 816) (1984); Berry v. State, 163 Ga. App. 705 (294 SE2d 562) (1982); United States v. Berry, 670 F2d 583, 598-600 (5th Cir. 1982). Other cases where there were consensual searches following automobile stops which were not based on a drug courier profile have either involved much more suspicious behavior prior to the stop and search than that encountered here, or did not go further than the seizure of evidence in plain view in the vehicle or from the defendant’s person or personal effects. See, e.g., Minor v. State, 180 Ga. App. 869 (1) (350 SE2d 783) (1986); Wilson v. State, 179 Ga. App. 780 (1) (347 SE2d 709) (1986); Anderson v. State, 177 Ga. App. 130 (2) (338 SE2d 716) (1985).

Moreover, where the arrest is “based on the search rather than vice versa, the issue of whether the arrest was lawful is not determinative of the legality of the search. Rather, the issue is whether [the] consent was lawfully obtained . . . and not as a result of coercion, duress, or deceit. . . . Such determinations are to be made from the totality of the circumstances under which the consent is given. Schneckloth v. Bustamonte, 412 U. S. 218, 227 (93 SC 2041, 36 LE2d 854) (1973).” (Indention omitted.) State v. Rezvani, 181 Ga. App. 328, 329 (352 SE2d 197) (1986). “In Schneckloth, [supra], the Supreme Court made an extensive explication of the concept of ‘consent’ in the Fourth Amendment context. Schneckloth teaches that, in essence, consent is without coercion; and to determine whether consent is free, the totality of circumstances surrounding the request for and agreement to the search must be examined. Though the giving of consent to make a search may be seen as waiving a person’s Fourth Amendment rights, such a waiver should not be governed under the strict standards applied to waiver of other constitutional rights.” (Citations omitted.) Mason v. Pulliam, 557 F2d 426, 428 (5th Cir. 1977).

I am unable to agree with the conclusion of the majority that the totality of the circumstances supported the trial court’s determination that appellants freely and voluntarily consented to the scope of the search carried out here or that the request to search was reasonably induced. In my view, Trooper Ralston had at best only a marginal basis to stop appellants’ car for a traffic violation, and the factors cited by him were insufficient to give rise to a “founded suspicion” of drug activity. As stated by the Eleventh Circuit Court of Appeals in United States v. Smith, supra, which I find equally applicable in this case as in Smith: “While the factors noted by Trooper [Ralston] might have some statistical correlation to characteristics of drug couriers, they are also descriptive of numerous legitimate interstate travelers. Whether other factors contained in the profile might sufficiently distinguish drug couriers from other travelers we do not today consider.” 799 F2d at 708 n. 5. That is because such other factors were neither alleged nor shown in either case. Although the stop in Smith was determined to be devoid of probable cause because the trooper’s suspicion was roused by that defendant’s failure to look in his direction when he passed the patrol car, I consider the ostensible reason for the stop of appellants’ car here to be similarly pretextual, and the extent of the subsequent search of the car so unreasonably based as to nullify any consent given by appellants. Their actions subsequent to the stop in no way gave rise “to a reasonable suspicion of illegal activity either alone or in combination with the other circumstances surrounding the stop of appellants’ car. Trooper [Ralston] stopped the car because the appellants matched a few nondistinguishing characteristics contained on a drug courier profile and, additionally, because [they were driving in daylight hours with a dim or malfunctioning taillight]. [Ralston’s] suspicion therefore was not the result of ‘reasonable inferences’ from ‘unusual conduct,’ Terry, [supra], but was instead a classic example of those ‘inarticulate hunches’ that are insufficient to justify a seizure under the [F]ourth [A]mendment. [Cit.]” 799 F2d at 707.

It appears obvious that but for such a hunch, a reasonable search of appellants’ car would not have entailed dismantling the doors. In determining whether an investigative stop and consensual search pursuant thereto are invalid as pretextual, I would follow the Smith court’s standard that “the proper inquiry is whether a reasonable officer would have made the seizure in the absence of illegitimate motivation.” Id. at 708. Likewise, in United States v. Cruz, 581 F2d 535, 540-542 (5th Cir. 1978), the Fifth Circuit held a stop made to issue a warning for a surmised u-turn to be an unreasonable seizure under the Fourth Amendment because its purported rationale was merely a pretext for an invalid purpose, in that the deputy did not really stop the car for a possible traffic violation, but instead was “hunting for illegal aliens and stopped [the] automobile in order to inspect its occupants.” Id. at 542. See also Rohrig v. State, 148 Ga. App. 869 (253 SE2d 253) (1979), in regard to a constitutionally reasonable inventory search.

Here, as in the cases discussed, I believe the stop was unreasonable not because Trooper Ralston “secretly hoped to find evidence of a greater offense, but because it was clear that an officer would have been uninterested in pursuing the lesser offense absent that hope.” 799 F2d at 710. In light of appellants’ legitimate possession of the car and their cooperation and lack of nervousness in consenting to a routine search of the car, the relentless search which ensued was obviously motivated by the hope of finding drugs based solely on Ralston’s profile-inspired hunch. “By looking to what a reasonable officer would do rather than to what an officer validly could do, the standard [I would] apply today to determine the validity of an allegedly pretextual investigative stop is supportive of the rationales that make Terry-stops reasonable under the [F]ourth [A]mendment. Terry - stops are reasonable not only because of the government’s interest in investigating and alleviating officers’ suspicions of illegal activity but also because of the limited intrusiveness of such stops. [Cit.] To maintain this balance between the competing interests of the government and the individual, each Terry-stop must be both ‘justified at its inception’ and ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ [Cits.]” Id. at 711.

Decided July 14, 1987

Rehearing denied July 31, 1987

Miguel A. Orta, Fernando Garcia, for appellant (case no. 74222).

J. Lane Bearden, Joseph P. Quirk, for appellant (case no. 74223).

Darrell E. Wilson, District Attorney, for appellee.

I find that neither of these standards was evidenced here, that the search and seizure were arbitrary and harassing, and, consequently, unreasonable under the Fourth Amendment. Thus, in my view appellants’ motions to suppress were improperly denied. Accordingly, I respectfully dissent.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74224.
    JONES v. THE STATE.
    (360 SE2d 622)
   McMurray, Presiding Judge.

Defendant was convicted of rape (OCGA § 16-6-1) and aggravated sodomy (OCGA § 16-6-2 (a)). He appeals, contending that the prosecution improperly placed his character into evidence. We affirm.

At trial, the case came down to the word of the victim against that of defendant. She said the sexual acts took place against her will; he said they were consensual.

During the presentation of the State’s case-in-chief, the victim testified that defendant gave her a marijuana joint and beer just before the commission of the crimes. The victim was 17 years old at the time.

The defendant took the stand and admitted that he used marijuana. He also admitted that on the day in question he smoked a joint, drank beer, and engaged in adulterous sexual intercourse (since he was married) with the victim. He denied, however, that anything other than consensual sex occurred.

At this juncture, the State took the position that defendant had placed his character in issue. Over objection, it introduced eight prior felony convictions, ranging from forgery to burglary, into evidence. None of the convictions involved sex crimes or violence against a person. Held:

In Phillips v. State, 254 Ga. 370, 372 (329 SE2d 475), our Supreme Court held “that where a defendant admits any prior criminal conduct less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20 (b) . . . by attempting to portray his character, albeit bad, as being better than it actually is. Thus, when a defendant admits any prior criminal conduct, the prosecutor may cross-examine him as to such conduct and may prove other prior convictions.” This “simple rule” is applicable in the case sub judice where the defendant admitted that he used marijuana (a violation of OCGA § 16-13-30 (j)), and that on the day in question he smoked marijuana with the victim, gave her a beer (a violation of OCGA § 3-3-23), and engaged in adulterous sexual intercourse with her (a violation of OCGA § 16-6-19). Compare Hall v. State, 180 Ga. App. 210 (348 SE2d 736), in which that defendant admitted he engaged in an act which was presumptively lawful.

By admitting to the violation of certain criminal conduct, defendant in the case sub judice attempted to portray his character, albeit bad, as being better than it was. Accordingly, defendant placed his character in issue within the meaning of OCGA § 24-9-20 (b). Phillips v. State, 254 Ga. 370, 372, supra. It follows that the State was entitled to prove that defendant was convicted of other crimes.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

I respectfully dissent.

OCGA § 24-9-20 (b) provides that “ [i]f a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” (Emphasis supplied.) The Phillips case, 254 Ga. 370 (329 SE2d 475), involved a defendant’s statement on direct examination by his counsel that he had been on parole and was visiting his aunt when the charged crime occurred. The prosecutor was then allowed to ask for what crime he was on parole, and later introduced a prior conviction. The Supreme Court held that when a defendant admits some but not all of his prior criminal offenses, he puts his character in issue by attempting to portray his character as better than it actually is. This invites the state to cross-examine on the admitted conduct. It also permits the state to prove other convictions.

Decided July 16, 1987

Rehearing denied July 31, 1987

Philip L. Ruppert, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

That case, and its holding, do not authorize admission of the objected-to evidence. By admitting some aspects of the res gestae which in themselves constituted crimes for which he was not on trial, defendant did not put his character in issue. The state could of course cross-examine him on those subjects. OCGA § 24-9-64; Mason v. State, 180 Ga. App. 235, 237 (3) (348 SE2d 754) (1986). But his prior convictions were not related to any issue in the case. Defendant did not, by his admissions, raise an inference that these current offenses were the only criminal acts he had ever engaged in or that he was generally of good character. See Hall v. State, 180 Ga. App. 210 (348 SE2d 736) (1986). Compare Porter v. State, 254 Ga. 388, 389 (330 SE2d 94) (1985); Language v. State, 169 Ga. App. 649, 650 (1) (314 SE2d 484) (1984). Allowing the jury to consider the prior convictions was error.

Because the evidence was principally the victim’s word against the defendant’s, it cannot be said that it is highly probable that the error did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Therefore the judgment should be reversed.

I am authorized to state that Judge Carley and Judge Benham join in this dissent.


author: Carley, Judge. Banke, Presiding Judge,

text:
    74298.
    BENSON et al. v. HUNTER.
    (360 SE2d 612)
   Carley, Judge.

Appellee-plaintiff sued to recover for injuries she sustained in a collision between her automobile and one which was owned by appellant-defendant Benson and which was being operated by appellant-defendant Davis. Appellants appeal from the judgment entered on the jury verdict in favor of appellee.

Appellants’ sole enumeration is that the trial court erroneously failed to give their requested charge on legal accident. This issue was raised and discussed in the very recent decision of this Court in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987). Although, under Rule 35 (b) of the Rules of this Court, that decision is only a physical precedent as to its resolution of the “legal accident” issue, that resolution is persuasive and the reasoning thereof is equally applicable to the case at bar: “There is considerable question whether [the evidence in this case] would be sufficient to authorize a charge on legal accident. ‘It has been said that “the better course would appear to be to omit the instruction except in those instances in which quite plainly it is peculiarly appropriate.” [Cit.]’ Garrett v. Brannen, 164 Ga. App. 10, 11 (1) (296 SE2d 205) (1982), overruled on other grounds Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). However, assuming without deciding that the evidentiary support for a charge on legal accident was present and that it would not have been error had such a charge been given, it does not necessarily follow that the failure to give a requested charge on that principle constitutes reversible error. ‘It is not necessary to give the exact language of the request when the same principles are fairly given to the jury in the general charge. [Cit.]’ [Cit.] ‘[F]or purposes of jury instruction, some jurisdictions have totally discarded the principle of accident. This result is reached on the ground that “a statement of the rule in instructions to a jury merely restates a phase of the law of negligence, is unnecessary, serves no useful purpose, overemphasizes the defendant’s case, is misleading and confusing, does not necessarily preclude fault or negligence, and is susceptible to different meanings and constructions.” [Cits.] Although Georgia has not discarded accident as a proper subject for jury instructions, it has long been recognized that it is not a separate defense but is merely “elaborative” of general principles of negligence law. [Cit.]. . . . [T]hat juries are misled and confused by the defense of accident has likewise been recognized.’ (Emphasis supplied.) Chadwick v. Miller, supra at 342. The record in this case shows that the trial court gave a full and fair charge on the general principles of negligence law, instructing the jury that [appellants] could not be found liable in the absence of [Davis’] negligence. In view of the charge as given by the trial court, the failure to give the additional requested charge on the merely ‘elaborative’ defense of legal accident was, at most, harmless error.” Glenn McClendon Trucking Co. v. Williams, supra at 511 (5).

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

The majority has effectively ruled that it is never reversible error to refuse to give a requested charge on accident in a personal injury action, so long as a “full and fair charge on the general principles of negligence law” is given. Were we living in an era in which juries were demonstrably prone to be mean and begrudging in their treatment of personal injury claims, I might agree. However, from my vantage point as a judge of this court, it occurs to me that such is not the case. Instead, it more often seems that jurors in this litigation-oriented day and age are laboring under the charitable though misguided notion that misfortune is itself compensable, regardless of fault. In an appropriate case, a charge on accident may well have the salutory effect of disabusing the jurors of any such predisposition. On the other hand, assuming the evidence in a particular case warrants a charge on accident, I do not perceive how the plaintiff could be prejudiced merely by having it called to the jury’s attention that it is possible, at least, for the injury to have occurred notwithstanding the absence of negligence on the part of either of the parties to the lawsuit.

Both the appellee-plaintiff and the appellant ambulance driver in this case testified that visibility at the intersection where the collision occurred was obscured by vegetation, with the result that it was not possible for them to see each other until they had already driven their vehicles into the intersection. Although in doing so the ambulance drove through a stop sign without coming to a complete stop, the jury would have been authorized to conclude from the evidence that he was in compliance with OCGA § 40-6-6 (b) (2), which permits the driver of an authorized emergency vehicle responding to an emergency call and making use of an audible signal and a flashing or revolving red light to proceed through a stop sign “after slowing down as may be necessary for safe operation.”

The majority does not take issue with the appellants’ contention that the evidence supported a charge on accident but instead holds that the failure to give such a charge cannot be considered reversible error. In accordance with the previously existing rule in this state that a charge on accident is required if, under some theory of the case, injury may be considered a mere casualty due to the negligence of neither party, Fred F. French Mgt. Co. v. Long, 169 Ga. App. 702 (1) (314 SE2d 666) (1984), I would hold that the trial court’s refusal to give the appellants’ requested instruction on accident establishes ground for a new trial.

Decided July 14, 1987

Rehearing denied July 31, 1987

James R. Osborne, for appellants.

George Pennebaker, Donald B. Howe, Jr., for appellee.

I am authorized to state that Presiding Judge Deen, Judge Sognier and Judge Beasley join in this dissent.


author: Carley, Judge. Benham, Judge,

text:
    74330.
    BULLOCH ACADEMY v. CORNETT.
    (360 SE2d 615)
   Carley, Judge.

An administrative hearing officer found that appellee-employee had voluntarily resigned his position with appellant-employer “without good cause” and was, therefore, disqualified from receiving unemployment benefits. See OCGA § 34-8-158 (1); Moore v. Tanner, 172 Ga. App. 792 (324 SE2d 772) (1984). Appellee’s administrative appeals were unsuccessful. However, on appeal to the superior court, the finding of appellee’s disqualification was reversed. The superior court held that, under the evidence, appellee had merely offered to resign, which offer he had then withdrawn before it had been accepted by appellant. Accordingly, the superior court felt “constrained to hold that there was no evidence to support a finding that [appellee’s] written contract was modified by a mutual consent of the parties.” The superior court further held that there was “nothing in the evidence ... to show that [appellee] and [appellant] ever came to a meeting of the minds regarding the terms of his resignation. . . . Thus, the parties were left with their written contract which [appellant subsequently] elected to terminate.” Appellant applied to this court for a discretionary appeal from the order of the superior court holding that appellee had not voluntarily resigned but had been terminated from his employment. Appellant’s application was granted and this appeal results.

In reviewing the sufficiency of the evidence to authorize a decision of an administrative agency, a superior court, as well as this court, is bound by the “any evidence” rule. See Miller Brewing Co. v. Carlson, 162 Ga. App. 94 (290 SE2d 200) (1982); Moore v. Tanner, supra. Accordingly, the sole issue for resolution is whether there was “any evidence” to support the administrative finding that appellee had voluntarily resigned his employment “without good cause.”

Under the evidence, appellee, for personal reasons, confronted his superior and informed her that he felt he could no longer operate effectively in his employment. Being of the opinion that “it was best that [he] resign rather than get fired,” appellee informed his superior that he would sign a letter of resignation if she would type it. It was appellee rather than his superior who first used the word “resignation” and it was appellee’s acknowledged intent that his resignation was to take effect “immediately.” His superior agreed to type a resignation letter and, at her express direction, appellee then began to remove all of his personal belongings from the work place. Appellee subsequently refused to sign the letter of resignation. He did not refuse to do so because he no longer wished to resign immediately. He did so only because of a disagreement with his superior over the amount of compensation that he would be paid for his past services to the date of his resignation. Appellee left work without signing the resignation letter. When appellee reported for work the next day, he was told that his employment with appellant had been terminated.

Mutual consent of the parties is not always necessary to effect a resignation. “[A] resignation may become effective without . . . acceptance [by a higher authority], and even impliedly, as by abandonment of all duties and work. [Cits.]” Young v. Minton, 49 Ga. App. 545 (176 SE 662) (1934). The evidence in this case would authorize a finding that appellee had made his own unilateral decision to resign from his employment, which resignation was to be unconditional and effective immediately upon the verbal conveyance of his unilateral decision to his superior. The evidence would not demand a finding that appellee’s oral pronouncements were his mere tentative “offer” to resign and that it was only upon his subsequent submission of a formal letter of resignation and appellant’s acceptance thereof that a resignation of his employment would be accomplished. Although appellee apparently had a written contract of employment, there is no evidence that, under its provisions, he did not have the right to effect his own voluntary and unilateral oral resignation or that appellant did not have the right to consider appellee as having effectively resigned his employment unless and until it had accepted a written letter submitted by him. Allen v. Lankford, 170 Ga. App. 605 (317 SE2d 645) (1984) is not authority for the proposition that an immediate resignation cannot be accomplished by an employee’s oral conveyance of his unilateral decision to do so but requires a formal offer and acceptance. On its facts, that case involved neither an oral nor a unilateral resignation. The only evidence of the employee’s resignation in Allen was in the form of her submission of a formal letter which was to the effect that she “wish[ed] to resign” but which apparently gave no specific date for her doing so. Under those circumstances and because the employee was a tenured public school teacher, it was held that such a written letter of resignation could be withdrawn at any time prior to its formal acceptance by the school board.

Moreover, even assuming that the evidence did demand a finding that appellee had merely made an oral offer to resign, the evidence would nevertheless authorize a finding that appellee’s supervisor had construed that offer as one for appellee’s unconditional and immediate resignation, which offer she had then immediately accepted. Her response to appellee’s pronouncement of his resignation was to direct him to remove all of his personal belongings from the premises forthwith rather than to wait until he could sign a formal letter of resignation. The evidence would also authorize a finding that appellee had acquiesced in this construction of his offer as one for his unconditional and immediate resignation. He complied with his superior’s direction by beginning to remove his belongings rather than insisting upon waiting until his resignation could be formalized in writing. Accordingly, notwithstanding any evidence of a subjective and unexpressed intent on the part of appellee that he was offering to resign only upon the condition that appellant agreed that his resignation would entitle him to the receipt of additional accrued compensation for his services to date, the evidence would authorize a finding that a contract had nevertheless resulted from appellant’s acceptance of appellee’s original oral offer of his unconditional and immediate resignation. See generally Consolidated Freightways Corp. v. Williams, 139 Ga. App. 302, 303 (1a) (228 SE2d 230) (1976). “ ‘[T]he intention of the parties may differ among themselves; in such cases the meaning placed on the contract by one party and known to be thus understood by the other party shall be held as the true meaning.’ ” Reeves v. Daniel, 143 Ga. 569 (2) (85 SE 756) (1915).

If appellee’s resignation was already an accomplished fact, whether by virtue of his unilateral act of tendering it or by virtue of appellee’s acceptance of his unconditional offer, then appellee’s subsequent refusal to sign the letter of resignation and his subsequent attempt to return to work would be immaterial. He could bring suit to enforce his claim that appellant was denying him the compensation allegedly owed to him upon his resignation but he could not, by his subsequent actions, negate the effect of his previously accomplished resignation. Likewise, if appellee had already resigned, appellant’s subsequent act of advising him that his employment was terminated would be immaterial. The evidence would authorize a finding that appellant had so advised appellee only after he refused to acknowledge that he had already resigned. Any attempt to terminate the employment of one who has already resigned would be superfluous.

The administrative hearing officer concluded, following an evidentiary hearing, that appellee had voluntarily resigned from his employment without good cause. That decision was affirmed on administrative appeal. The decision was supported by some evidence and, in the absence of fraud, the superior court was bound to accept it. OCGA § 34-8-176 (b). Accordingly, the order of the superior court must be reversed.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., and Beasley, J., concur. Deen, P. J., Sognier, Pope and Ben-ham, JJ., dissent.

Benham, Judge,

dissenting.

Because I cannot agree with the majority’s conclusion that appellee voluntarily resigned his position without good cause and is therefore disqualified from receiving unemployment benefits, I must respectfully dissent.

This case arose out of a dispute involving appellee’s teaching contract. Appellee filed an application for unemployment benefits. The application was granted, appellee was awarded benefits, and Bulloch Academy filed an appeal. At the hearing on that appeal, the administrative hearing officer rendered a decision in favor of Bulloch Academy. On appeal by appellee, the Board of Review of the Department of Labor affirmed the administrative officer’s decision with one dissent. Appellee filed an appeal from that decision to the Superior Court of Bulloch County, which reversed the decision of the board of review, stating that it could find no evidence to support the board’s findings. This appeal was brought from that ruling.

A brief recitation of the facts is necessary to put the issues in proper perspective. During a disagreement between appellee and the headmistress over the dismissal of his assistant, appellee offered to resign if the headmistress would type a letter of resignation. The headmistress offered to prepare the letter and ordered appellee to remove his personal effects from the premises. In compliance therewith, appellee removed his effects from the premises. A disagreement later ensued between appellee and the headmistress over the amount of pay appellee was due on the remainder of his contract, and appellee did not sign the letter of resignation. He left the premises to resolve the contract dispute with the headmistress’ superior but returned to work the next day, at which time he was informed by the headmistress that he had been discharged.

The majority concludes that appellee effectively resigned by making a unilateral decision to resign which was unconditional and effective immediately when it was verbally conveyed to his superior. That holding is based upon Young v. Minton, 49 Ga. App. 545 (176 SE 662) (1934), which states: “[A] resignation may become effective without such acceptance and even impliedly, as by abandonment of all duties and work.”

Young is a 1934 case and should be limited to its particular facts and to the era in which it was decided. It was decided during the throes of the depression at a time when employees had very few rights. Since the Young decision, however, the Employment Security Law and other public welfare laws have been passed. The facts of this case must be viewed in light of the purposes and policies behind these new laws. The Employment Security Law was passed to carry out the public policy of providing economic security to displaced employees.

1. The first issue to be decided here is whether the employee effectively resigned his position. A resignation, to be effective, must be made with the intention of relinquishing the office accompanied by the act of relinquishment. Patten v. Miller, 190 Ga. 123, 141 (8 SE2d 757) (1940). To constitute a resignation, it must be unconditional and be made with the intent to operate immediately as such. Poland v. Glover, 111 FSupp. 675 (W. D. New York) (1953).

By application of the rules stated above to the facts of this case, it can be seen that appellee never effectively resigned his position. Appellee merely offered to resign at sometime in the future; therefore, his actions did not constitute a formal renouncement or relinquishment of his position. The resignation here contained a condition precedent: appellee offered to resign “if the headmistress would type a letter of resignation.” His offer to resign was not intended to operate immediately but was to be effective when a letter of resignation was typed and signed. Since the condition precedent was not satisfied, no resignation took place.

Contrary to the majority’s assertion that Allen v. Lankford, 170 Ga. App. 605 (317 SE2d 645) (1984), is not authority for the proposition that an immediate resignation cannot be accomplished by an employee’s oral conveyance of his unilateral decision to do so but requires a formal offer and acceptance, I believe it is indistinguishable and controlling on the issue in this case. Allen v. Lankford, is a 1984 case which, although not involving the Employment Security Law, is consistent with the purposes and principles of that law. Allen, a public school teacher, submitted a letter of resignation which read, “I wish to resign my position,” but later withdrew the letter before the board of education accepted it. The court found that “[a] teacher having tendered a written resignation to his principal or superintendent, may regard it as ineffective and withdraw it until it is accepted by the board of education.” Id. at 606. The majority bases its distinction of the Allen case on the language contained in the letter of resignation; however, this factor was not considered in the decision of that case and is therefore not a valid distinguishing factor. Since appellee withdrew his offer to resign before it was accepted by Bulloch Academy, I can find no evidence that an effective resignation took place.

2. Finally, we must consider whether appellee abandoned his duties, which would effectively terminate his employment. “ ‘In order to constitute an abandonment of an office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment.’ ” Patten v. Miller, supra at 139. Whether appellee left with his superior’s permission is in dispute; however, it is uncontested that appellee left in order to resolve a dispute concerning his contract and that he did report to work as usual the next day. Under the circumstances, appellee’s acts are not evidence that he intended to totally relinquish his position. By application of the above rule to the facts of the present case, I can find no evidence that appellee’s acts constituted an abandonment of his employment.

Decided July 15, 1987

Rehearing denied July 31, 1987

J. Michael Hall, for appellant.

Fletcher Farrington, Michael J. Bowers, Attorney General, Annette M. Cowart, Senior Attorney, for appellee.

Since no effective resignation took place and appellee did not abandon his duties in such a manner as to terminate his own employment, appellee is entitled to unemployment compensation and the decision of the superior court should be affirmed.

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


author: Banke, Presiding Judge.

text:
    74748.
    EARLY COUNTY v. FINCHER et al.
    (360 SE2d 602)
   Banke, Presiding Judge.

The appellees sued Early County to recover for personal injuries and deaths resulting from the collision of an automobile with an embankment located at the termination of a dead-end county road. The suit is predicated on allegations that the county was negligent in failing to install signs, barricades or other devices to warn of the presence of the embankment and on allegations that the resulting condition of the roadway constituted a nuisance. The county is alleged to have waived the defense of sovereign immunity to the extent of a $300,000 policy of liability insurance which it had in effect at the time of the accident.

The county filed a motion in limine seeking to prevent the introduction of the insurance policy into evidence at trial and also seeking to exclude any evidence tending to establish that its failure to install signs, barricades or other warning devices constituted negligence. The trial court denied the motion, and we granted the county’s application for an interlocutory appeal. Held:

1. Pursuant to Art. I, Sec. II, Par. IX of the Constitution of the State of Georgia of 1983, “the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protections for such claims has been provided but only to the extent of any liability insurance provided.” In Toombs County v. O’Neal, 254 Ga. 390, 391 (330 SE2d 95) (1985), the Supreme Court held that the phrase, “the State and all of its departments and agencies,” as used in this constitutional provision, encompasses counties.

It does not follow, however, that the amount of the county’s liability insurance coverage is a proper subject for jury consideration in the present action. Generally speaking, of course, evidence of the existence and scope of liability insurance coverage carried by a defendant in a personal injury case is not admissible, due to its lack of relevance to the issues being tried and its potential for prejudicing the defendant’s case. See generally Goins v. Glisson, 163 Ga. App. 290, 292 (292 SE2d 917) (1982); Green, Ga. Law of Evidence, § 73 (2d ed.); Agnor’s Ga. Evidence, § 10-19 (2d ed.). While the scope of the county’s liability coverage is clearly relevant to this case in the sense that it controls the extent of the county’s waiver of sovereign immunity, it is not a matter which can be considered of any legitimate concern to the jury. Rather, the existence and limits of the county’s insurance coverage can easily be determined by the trial judge as a matter of law from an examination of the policy; and in the event the jury returns a verdict in favor of the appellees, the judgment can thereafter be molded by the court to bring it in line with the policy limits. Such a procedure has been adopted in various other, similar situations to avoid the probable prejudice which would result to the defendant from having evidence of his insurance coverage considered by the jury. See, e.g., Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746 (272 SE2d 702) (1980) (involving a suit against a motor vehicle common carrier and its insurer pursuant to former Code Ann. § 68-612 (current OCGA § 46-7-12)); Powell v. Manning 242 Ga. 778 (251 SE2d 522) (1979) (involving the exemption from liability for non-economic loss available to a defendant with no-fault insurance coverage); City of Waycross v. Beaty, 157 Ga. App. 765 (1) (278 SE2d 697) (1981) (involving the waiver of governmental immunity resulting from a municipality’s purchase of motor vehicle liability insurance). In accordance with these authorities, we hold that the trial court erred in denying the county’s motion in limine insofar as it sought to exclude from the jury’s consideration evidence of the county’s liability insurance coverage.

2. We affirm, however, the denial of the motion in limine insofar as it sought to exclude evidence of the county’s alleged negligence. Normally, “[a] county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. This includes actions brought under a theory of negligence as well as actions brought under a theory of nuisance, unless, of course, the alleged nuisance amounts to a taking of private property for public purposes. See Miree v. United States, 242 Ga. 126, 129, 134 (249 SE2d 573) (1978). However, it is precisely this immunity from liability which the county is alleged to have waived in the present action by its purchase of liability insurance. The benefit to the public of the constitutional provision establishing such waiver would be hollow indeed if the principles of sovereign immunity continued to apply, notwithstanding the purchase of such insurance coverage, to prevent proof of the county’s alleged liability.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, the county insists that we have ignored its “defense of discretionary acts,” which it categorizes as “a separate and distinct defense as opposed (sic) the issue of sovereign immunity.”

The cases drawing a distinction between discretionary and ministerial acts do not deal with the liability of counties but with the liability of municipalities. Traditionally, municipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental or discretionary functions. See OCGA §§ 36-33-1; 36-33-2; Tamas v. Columbus, 244 Ga. 200, 202 (259 SE2d 457) (1979). Although this distinction between ministerial and discretionary functions has on occasion also been applied to claims against counties, see, e.g., Christensen v. Floyd County, 158 Ga. App. 274 (2) (279 SE2d 723) (1981), such application is clearly inappropriate since, with certain specific exceptions such as the one involved in this case, the sovereign immunity enjoyed by a county extends to discretionary as well as ministerial functions and, indeed, even to personal injury claims based on nuisance. See OCGA § 36-1-4; Miree v. United States, supra. Thus, the county’s contention that there exists a separate “defense of discretionary acts” which may be asserted independently of the defense of governmental immunity is without merit.

The county further asserts on motion for rehearing that this court’s ruling in Division 2 of its opinion will somehow operate to “eliminate all defenses which appellant may submit. . . .” Our ruling in Division 2 is merely that the trial court properly denied the county’s motion in limine seeking to exclude at trial any evidence tending to establish that the accident was the proximate result of negligence on its part. We do not comprehend how this ruling could reasonably be construed as prohibiting the county from asserting any applicable defense it may have to the plaintiffs’ claim. The county’s motion for rehearing is accordingly denied.

Decided July 13, 1987

Rehearing denied July 31, 1987

Leonard Farkas, Timothy 0. Davis, for appellant.

Jerry W. Brimberry, R. Edgar Campbell, for appellees.