author:
Birdsong, Presiding Judge.
      Blackburn, Judge,

text:
    A94A0538.
    FORD v. THE STATE.
    (447 SE2d 334)
   Birdsong, Presiding Judge.

Johnny Christopher Ford appeals his conviction for trafficking in cocaine, enumerating the denial of his motion to suppress the large quantity of cocaine found in the bedroom he occupied in his sister’s apartment. Appellant’s sister called police after overhearing a telephone conversation by appellant indicating he dealt in drugs, and she gave consent to search the apartment. Ford contends his bedroom was not a common area over which his sister had control or access, that he paid rent for the use of the apartment, and that he had a reasonable expectation of privacy in it and did not assume the risk that his sister would consent to a search of it, under United States v. Matlock, 415 U. S. 164, 171 (94 SC 988, 39 LE2d 242), as quoted and relied on by State v. Stewart, 191 Ga. App. 750 (382 SE2d 677) and State v. Oliver, 183 Ga. App. 92 (357 SE2d 889). Appellant also relies on Davis v. State, 262 Ga. 578, 581, fn. 3 (422 SE2d 546), where in affirming our decision at 202 Ga. App. 629 (414 SE2d 902) the court nevertheless said: “No expectation of privacy is more reasonable than that which one has in one’s bedroom.”

Appellant’s sister was lessee of the apartment and appellant had been staying there for only about a week. Although appellant contends he paid rent to his sister, the State’s evidence shows that when she consented to the search she denied that appellant paid rent. Her testimony at trial on this issue was in her brother’s favor. Held:

1. At a suppression hearing involving a third party’s consent to search, the State has the burden to prove not only that consent was voluntary but that the third party had authority over, and other sufficient relationship to, the premises sought to be inspected. United States v. Matlock, supra, as quoted in Stewart, supra, and Oliver, supra at 93.

A trial court’s decision on fact issues and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous. Id. at 94. The evidence construed in favor of the ruling below shows either that appellant did not pay rent or that if the money he paid her was “questionably” rent, it was not such as destroyed the sister’s control and authority of her entire apartment and gave him an actual expectation of privacy in one of the bedrooms. At the hearing on motion to suppress, Detective Ortiz testified that he went to appellant’s sister’s apartment after she called the police to report her brother selling crack cocaine; Ortiz testified that he asked permission to search and she freely gave it, that she told him appellant had been living in her apartment about a week and that appellant did not pay her any money to stay there, and that she could go anywhere in the house because it was her house and she was the sole lessee. Appellant’s sister testified that she did not remember such questions, and that appellant paid her $25 or $30 for “bills, to help with the rent.” She also testified that since he was her brother, “it wouldn’t matter” whether she went in his room, that he never told her not to go in his room, that she went to his room to wash his clothes, and that she assumed her consent to search referred to her whole apartment. The trial court found there was “an extremely informal relationship regarding the rent, and I’m not so sure [it’s been established that he paid rent]. . . . [T]hey were in and out of the place on [an] informal basis. His room wasn’t secured. ... If you just believe a portion of Detective Ortiz’ statement, it would indicate that at least there was no objection to him going into that room while the defendant was standing there. The sister said she expected when she signed [the consent to search] that they would go into the whole place. . . . [I]t’s questionable as to whether [the money he gave her] was for food or lights, or just [to] help out, or whether he was renting a particular part of that apartment that gave him some exclusive dominion. . . . Apparently he may have given her some money just to help out with expenses. But whether or not it was rent... I don’t think [has] been fully established. And I don’t think that there has been a sufficient . . . showing . . . that it was a particular rent of a particular room that he had an expectation of privacy in. And I [find] that she had a right to allow them to make the search, and that search would include the entire premises.”

Viewing the evidence in favor of the trial court’s rulings, and accepting his findings as to the evidence (id.), we must conclude that appellant’s sister had sufficient authority and control to consent to a search of her entire apartment. According to the trial court’s findings of fact, she did not give up control and authority of her apartment merely by allowing appellant to stay in one of its bedrooms and accepting money from him, and she did not give up her right to object to his use of her home for illegal purposes.

We see no material difference in this case and Howard v. State, 207 Ga. App. 125 (427 SE2d 96), where the mother, as head of her household, had control and authority of her house sufficient to enable her to consent to a valid search of her son’s bedroom. See also Montgomery v. State, 155 Ga. App. 423 (270 SE2d 825).

The dissent would have it that if a guest gives money to his host, the guest acquires an expectation of privacy which destroys her control of her home. The dissent’s view of appellant’s “rent” would create a society where every person is held hostage, as it were, to any crime a guest commits, if he gave her money. This is a dangerous proposal. We protect “[t]he right of the people to be secure in their [premises] against unreasonable searches” (emphasis supplied) (Ga. Const. 1983, Art. I, Sec. I, Par. XIII), but no Georgia court has ever held so liberal a view as promoted by the dissent. Possibly if this ungrateful guest had kept dismembered bodies in his room rather than drugs, the dissent would not take such a liberal view of the rights he got merely by giving money to his host, and such a dim view of her right to control her home. The question is not whether a guest gives his host money but whether he had a reasonable expectation of privacy which would render unreasonable a search consented to by the host. The trial court concluded that whatever the purpose of the money, appellant did not have a reasonable expectation of privacy and the host’s consent to search included her entire premises. It counts for something that she did not consider any of her house to be so exclusively “his” as to remove her right to consent to a search. Neither did the trial court under all the facts. The “law of paying rent” proposed by the dissent does not change the facts into a question of law, and is not the law of this state.

2. Moreover, if there be any doubt as to the actual extent of appellant’s sister’s control of her entire apartment, appellant had no legitimate or reasonable expectation of privacy in conducting criminal business in his sister’s home. The Fourth Amendment protects only those who have reasonable expectation of privacy in the premises searched. “A subjective expectation of privacy is legitimate if it is ‘ “one that society is prepared to recognize as ‘reasonable.’ ” ’ [Cit.]” Minnesota v. Olson, 495 U. S. 91, 95-96 (110 SC 1684, 109 LE2d 85). Society does not regard a cocaine-selling operation as reasonable or legitimate. A guest’s reasonable expectation of privacy in his host’s house is based on the notion “that hosts will more likely than not respect the privacy interests of their guests.” Id. at 99. That principle obviously does not apply when the host chooses not to respect her guest’s “privacy” in regard to illegal acts. Appellant’s sister was the lessee and was legally in control of her apartment. If appellant gave her money, she obviously did not accept it with knowledge and permission that he would use the premises to engage in criminal activity. She did not give him the privacy to sell drugs and he had no reasonable or legitimate expectation in privacy to sell drugs in her apartment. She did not view appellant’s drug activities in her house, or his expectation of privacy, as reasonable or legitimate. That is why she called the police. Appellant’s expectation of privacy was unreasonable per se.

3. Finally, we conclude that the facts available to the police at the time of the search justified one of reasonable caution in the belief that the consenting party (appellant’s sister) had authority of the premises. See State v. Stewart, 203 Ga. App. 829, 830 (418 SE2d 110), relying on Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148), wherein the U. S. Supreme Court held that a warrantless search based on unauthorized consent “could nonetheless be upheld if the law enforcement officer conducting the search reasonably (albeit erroneously) believed the consent given was valid. [Cit.]” Stewart, supra at 203 Ga. App. 829-830. (State v. Stewart, supra at 191 Ga. App. 705, relied on by appellant, was the first appeal in that case; we remanded the case for reconsideration under Illinois v. Rodriguez, supra.)

In Davis v. State, 202 Ga. App. 629, 632 (414 SE2d 902), we held that the child in that case had authority to consent to a search of his parents’ home, and “[furthermore, the police officers acted reasonably in assuming [the child] had sufficient control over the premises . . . that he could consent to the search. [Illinois v. Rodriguez, supra.]” The Georgia Supreme Court held on certiorari that the child did not have authority to consent to a search, and therefore his consent was unauthorized and was ineffective to permit a warrantless entry. The Supreme Court found the child’s lack of authority to consent to be conclusive on the issue of the legality of the search (Davis, supra at 262 Ga. 578), and did not consider the impact of Illinois v. Rodriguez; but inferentially the police could not reasonably believe the child had authority to consent to search under the facts described by the Supreme Court.

It is suggested that the Georgia Supreme Court’s rejection of the United States Supreme Court’s “good faith” rules in Gary v. State, 262 Ga. 573 (422 SE2d 426) precludes any consideration of the officer’s good faith in this case. However, Gary outlawed consideration of good faith with regard to a search warrant which is invalid for lack of probable cause. A consent to search by a person who has authority over the premises or who, in the officer’s good faith reasonable belief, has the authority to consent to the search, is on an entirely different footing. The Supreme Court decided Gary 13 days before it decided Davis, and with full knowledge of the significance of its ruling in Gary, it declined to apply the Gary rationale to the consent search case of Davis. The Supreme Court thus had the immediate opportunity to disapprove of a consent search based on the officer’s good faith reasonable belief that the consenter had authority to consent to the search, in Davis, supra, but it did not do so because obviously when the question is authority to consent to search, a search based on an officer’s good faith reasonable belief that a person who consented to the search of certain premises had authority to do so, is not offensive to any of the principles espoused by the Supreme Court in Gary.

In this case, the police could reasonably believe appellant’s sister had full control of her premises and authority to permit the search of it, including the bedroom where appellant was staying.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Beasley, P. J., Andrews, Johnson, Smith, JJ, and Senior Appellate Judge Harold R. Banke concur. Blackburn, J., dissents.

Blackburn, Judge,

dissenting as to Divisions 1, 2 and 3.

During the hearing on defendant’s motion to suppress, the appellant’s sister testified that the appellant had been living with her for approximately one week, that his bedroom was his private room, that he paid between $25 and $30 for bills and to help with the rent, and that she had not told the police anything contrary to that testimony. Thereafter, the trial court recognized that the appellant gave his sister some money, but questioned “whether it was for food or lights, or just helping out, or whether he was renting a particular part of that apartment that gave him some exclusive dominion over that.”

The majority contends that the trial court’s determination that based on the evidence “that [appellant’s sister] had a right to allow them to make the search, and that search would include the entire premises” was a finding of fact which must be clearly erroneous before it can be reversed. The trial court’s determination was, at best, a mixed finding of law and fact. The trial court clearly believed appellant’s sister’s testimony that appellant paid her money, the trial court merely misapplied the law in finding that the money must be specifically for rent and not for increased bills and to help with rent.

1. This case is clearly distinguishable from Howard v. State, 207 Ga. App. 125 (427 SE2d 96) (1993) upon which the majority bases its decision. In Howard, we found that no landlord-tenant relationship existed between the defendant and his mother because he “paid no part of the rent or other expenses.” (Emphasis supplied.) 207 Ga. App. at 125. See also Williams v. State, 166 Ga. App. 798 (2) (305 SE2d 489) (1983). In the present case, during his first week of living with his sister appellant paid $25 to $30 for bills and rent. The trial court found the appellant’s sister’s testimony credible, but imposed a more stringent standard than that indicated in Howard, supra, and Williams, supra, to find a landlord/tenant relationship. Each case relied upon by the majority involves a fact situation in which the parents of the defendant consented to a search of their house in which their son lived without paying any money to the parents. See Howard, 207 Ga. App. 125 (1), supra; Montgomery v. State, 155 Ga. App. 423 (1) (270 SE2d 825) (1980). See also Williams, supra. The present situation is much different.

The fact that the defendant did not object to the officer’s illegal search at the time, is of no consequence. A failure to object does not equal consent. The defendant did not testify, and the State has the burden of proving a legal search. The payment of $25 to $30 for one week for bills and rent sufficiently establishes a landlord-tenant relationship, especially when the appellant had his own room. Merely allowing access to one’s room for laundry does nothing to obviate a landlord-tenant relationship. Therefore, the State failed to fulfill its burden of proving that it had obtained valid consent. See State v. Stewart, 191 Ga. App. 750 (382 SE2d 677) (1989); State v. Oliver, 183 Ga. App. 92 (357 SE2d 889) (1987).

2. The majority’s argument in Division 2 relies on its finding that appellant was a guest in his sister’s apartment. However, appellant was not a “guest,” but a tenant who enjoys all rights and protections provided by the United States and Georgia Constitutions. The majority concludes that because the defendant was trafficking cocaine, he had no reasonable expectations of privacy. In this case, the expectation of privacy is founded on the tenant status of defendant and is not waived by the conduct in which he engaged as a tenant. The Fourth Amendment to the United States Constitution protects the citizen’s right to be free from unreasonable searches and seizures of his person and his property as determined at the time of the search, not by a subsequent determination of the defendant’s conduct based upon the results of the search. See Minnesota v. Olson, 495 U. S. 91 (110 SC 1684, 109 LE2d 85) (1990).

3. In Division 3 the majority applies a “good-faith exception” to a warrantless search where the officer was justified in believing that the party consenting to the search had authority to do so. This exception has been recognized by the United States Supreme Court and recognized by this court. See Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990); State v. Stewart, 203 Ga. App. 829 (418 SE2d 110) (1992). However, the same reasons enunciated by the Georgia Supreme Court for not following the “good-faith exception” with regard to search warrants, prevent our use of a “good-faith exception” with regard to warrantless searches. Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992).

In Gary, the Court determined that OCGA § 17-5-30 was the “legislature’s unequivocal expression of its desire that evidence seized by means of a warrant that [was] not supported by probable cause be suppressed.” 262 Ga. at 575. Similarly, OCGA § 17-5-30 (a) (1) requires the suppression of evidence obtained by an illegal search and seizure conducted without a warrant. “A valid consent eliminates the need for either probable cause or a search warrant. Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385) (1990). Langston v. State, 202 Ga. App. 431, 432 (2) (414 SE2d 676) (1992).” (Citations and punctuation omitted.) Howard, 207 Ga. App. at 127. Therefore, a search based on invalid consent is illegal and the evidence is subject to suppression pursuant to OCGA § 17-5-30 (a) (1).

In Gary, the Court held “that the good-faith exception to the exclusionary rule enunciated by the U. S. Supreme Court in United States v. Leon, ... is not applicable in Georgia in light of our legislatively-mandated exclusionary rule found in OCGA § 17-5-30.” 262 Ga. at 577. A different result is not justified because the officers in the present case acted without warrant. Georgia law precludes the application of the Rodriguez good-faith exception for warrantless searches as applied by the majority.

Decided July 12, 1994

Reconsideration denied July 29, 1994

J. Robert Daniel, Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Vernon R. Beinke, Howard Z. Simms, Assistant District Attorneys, for appellee.

The majority asserts that this issue was squarely before the Georgia Supreme Court in Davis v. State, 262 Ga. 578 (422 SE2d 546) (1992), and the Supreme Court did not disapprove of the good-faith exception in valid consent searches. In Davis, the Supreme Court’s decision was based on whether the ten-year-old had actual authority to consent to a search of his parent’s house, not whether the police reasonably relied upon the ten-year-old’s apparent authority. Id. The present issue was not before the Court in Davis, and there is no prec-edential value in the Court’s failure to discuss or reach an issue.

For the foregoing reasons, the trial court’s denial of Ford’s motion to suppress should be reversed.


source: Caselaw Access Project

author: Smith, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A94A0541.
    WOOTEN v. CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORPORATION.
    (447 SE2d 672)
   Smith, Judge.

Eddie Wooten filed this action against the Central Georgia Electric Membership Corporation to recover damages for personal injuries incurred when he was shocked by a high voltage line. The trial court granted the EMC’s motion for summary judgment.

Wooten had been employed as a truck driver by the Eatonton Co-op Feed Company for approximately one year at the time of the incident. On August 14, 1990, he was assigned to deliver a load of grain to the Sprayberry Dairy Farm. He had been there before, assisting another driver, but this was the first time he was called upon to make a delivery to the farm alone. The delivery required him to back his truck up to the customer’s storage bin so that a moveable boom on the back of the truck could be positioned to unload the grain. With the boom in proper position, a screw-like device pushes grain from the truck into the bin through the boom. The controls for operating the boom are located at the rear of the truck.

Wooten had unloaded the grain and was standing at the boom controls in the process of removing the boom from the bin when he noticed smoke emanating from the truck. He immediately went to the cab to turn the truck’s engine off, unaware that the boom had made contact with a high voltage wire. When Wooten placed his foot on the truck’s running board he was jolted with the primary wire’s current.

Wooten contends the trial court erred in granting summary judgment to the EMC. “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. [Cit.] 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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“ ‘It is elementary that one maintaining high tension lines must do so in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines. That was the duty owed by the power company to [Wooten] in this case.’ [Cit.]” Three Notch Elec. Membership Corp. v. Bush, 190 Ga. App. 858 (1) (380 SE2d 720) (1989). Wooten alleged the EMC was negligent in failing to exercise proper care “based on the circumstances” and in maintaining its high voltage wire in the “immediate proximity” of the grain bin when it knew, or should have known, that persons such as appellant might be injured. Although he asserts in his brief that the EMC “definitely had notice of the existence of the dangerously close proximity of its high voltage lines to the grain bin on the Sprayberry Farm,” Wooten failed to show that the line was “dangerously close” to the grain bin. Indeed, the record shows the contrary. Wooten’s own expert, James Roberts, a mechanical and civil engineer, estimated the lines were 17 or 18 feet away from the bin, and testified that “[t]here were no violations [of the National Electrical Safety Code]. In other words, the bin was far enough away that you did not break any violation horizontally, as well as you didn’t break them vertically.” James Henderson, an EMC serviceman, testified at deposition that the grain bin was not under the power line but “way away from the line.” We find this case indistinguishable in that respect from Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99 (432 SE2d 675) (1993) in which both the plaintiff and his expert admitted the power line met industry clearance standards. Id. at 100 (1).

In addition, there is evidence in the record showing the EMC could not reasonably have expected Wooten to come into contact with its wire. Grain deliveries to a dairy farm are not unusual. The high voltage line had been in the same position since 1981. The feed bin was erected in 1987. Charles Maddox, manager of engineering at the EMC, could not recall any injury resulting from a grain delivery truck coming into contact with an electric wire in the more than 20 years he had been employed at the EMC. This evidence not only discharged the EMC’s burden of showing an absence of evidence to support Wooten’s case, it affirmatively disproved Wooten’s allegations. Summary judgment was therefore properly granted in favor of the movant EMC. Lau’s Corp., supra, 261 Ga. at 491.

Finally, Roberts testified that a notice posted on the rear of Wooten’s truck warned of the consequences of operating the boom around electric lines. Even assuming there had been some negligence on the part of the EMC, Wooten could have avoided injury entirely had he read and heeded the warning. Here, as in Brown, supra, 209 Ga. App. at 100-101 (2), his injuries were the direct result of his failure to exercise ordinary care for his own safety, presenting another reason for affirming the trial court’s grant of summary judgment to appellee.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the majority invades the province of the jury by concluding, as a matter of law, that Central Georgia Electric Membership Corporation (“Central Georgia”) “could not reasonably have expected Wooten to come into contact with its [high voltage power] wire.”

“ ‘It is elementary that one maintaining high tension lines must do so in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines. . . .’ Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55) (1973).” Three Notch EMC v. Bush, 190 Ga. App. 858 (1) (380 SE2d 720). In the case sub judice, Wooten testified that he did not notice a power wire before his injury and that he moved his truck less than five feet in the delivery area of the grain bin before the vehicle’s grain auger contacted Central Georgia’s power wire. Wooten also testified that he visited the accident site after his injury and noticed that Central Georgia’s power wire was not conspicuous (i.e., it was as slim as a “pencil”); that the power line had no warning markers and that the wire remained near the loading area of the grain bin. It is my view that this testimony and evidence that Central Georgia had actual or constructive knowledge that large agricultural equipment frequently operated in the area of its power transmission wire raises genuine issues of material fact as to whether Central Georgia was negligent in suspending a power transmission wire over the delivery area of a grain bin at Sprayberry Dairy Farm. However, the majority ignores these facts and concludes, as a matter of law, that Central Georgia “could not reasonably have expected Wooten to come into contact with its high voltage power] wire.”

“On a defendant’s motion for summary judgment, the evidence is construed in the respondent’s favor; the respondent is given the benefit of all doubts and all reasonable inferences therefrom are indulged in [his] favor. The burden is on the movant to show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65). Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 Ga. App. 893, 894 (403 SE2d 466). But where the movant carries this burden, the respondent may not rest on [his] pleadings but must put forth evidence showing actual issues for trial. (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)).” Moore v. Food Assoc., 210 Ga. App. 780, 781 (1) (437 SE2d 832).

In the case sub judice, Central Georgia did not produce a scrap of evidence that its power wire was properly suspended so that large agricultural machinery would not reasonably be expected to come into contact with it. Central Georgia did not even produce specific evidence regarding the location of its power wire at Sprayberry Dairy Farm. The only testimony offered by Central Georgia in this regard was from James Henderson, a Central Georgia serviceman, who testified that the grain bin at Sprayberry Dairy Farm was “way away from the [power] line.” The majority relies on this nebulous conclusion and the deposition testimony of Wooten’s expert witness, James B. Roberts, to support a finding that Central Georgia maintained its power wire within guidelines of the National Electrical Safety Code. This reliance is unfounded.

Neither Henderson nor Roberts offered testimony regarding specific distances or heights of Central Georgia’s power wire at Sprayberry Dairy Farm. Further, neither witness gave testimony as to industry clearance standards for installation and maintenance of a power transmission line, much less guidelines for maintaining a power transmission line near a large agricultural operation. Nonetheless, the majority insists that this Court’s recent holding in Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99 (432 SE2d 675), is “indistinguishable” with respect to proof of compliance with “industry clearance standards.” I do not agree with this statement and find that the only “indistinguishable” features in Brown and the case sub judice are plaintiffs who were electrocuted by EMC power transmission wires.

In Brown, the plaintiff “admitted, and his expert . . . testified, that the primary wire met industry clearance standards.” Id. at 100 (1). In the case sub judice, Wooten does not admit that Central Georgia maintained its power wire at Sprayberry Dairy Farm in compliance with “industry clearance standards” and his expert (Roberts) testified that he neither checked the “design” of power wire in question, nor measured distances relevant to Central Georgia’s compliance with any electrical safety standards. Roberts merely testified that he “would not anticipate finding [any safety code violation].” This testimony reveals that Roberts had no first-hand knowledge of Georgia Central’s compliance, vel non, with “industry clearance standards.” Consequently, Roberts’ speculative testimony that Central Georgia maintained its power wire within guidelines prescribed by the National Electrical Safety Code is nonprobative hearsay. See Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257). However, assuming the contrary, it is my view that proof of compliance with a safety code clearance standard is insufficient to prove, as a matter of law, that one maintaining a power line has done so in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with the wire. I believe that this controlling issue is a question of foreseeability upon which reasonable minds might differ and that the case sub judice must therefore be resolved by the factfinder, not a court on summary adjudication. My conviction on this issue is supported “[i]n numerous cases involving injuries caused by electric shock from power lines, [where] this court has held that the foreseeability of the plaintiffs’ acts leading to injury was a jury question regarding which reasonable minds might differ. E.g., Three Notch EMC v. Bush, 190 Ga. App. 858, 859 (1) [, supra] (two employees of commercial grain operation electrocuted while moving grain auger when auger struck power line); Habersham EMC v. Dalton, 170 Ga. App. 483 (317 SE2d 312) (1984) (farmer used hoe attached to conduit pipe to clean chicken feed bin, causing injury when tool struck overhead power line); Collins v. Altamaha EMC, 151 Ga. App. 491 (260 SE2d 540) (1979) (workers driving farm equipment injured when they negligently struck guy wire securing utility pole); Gilbert v. Ocmulgee EMC, 100 Ga. App. 638 (112 SE2d 207) (1959) (farmer injured when long pipe used to clean electric pump in well struck power line).” Buckner v. Colquitt EMC, 206 Ga. App. 69, 70 (424 SE2d 299).

Finally, I observe that the record simply does not support the majority’s final tag that Wooten’s “injuries were the direct result of his failure to exercise ordinary care for his own safety. . . .” The majority bases this conclusion on the premise that Wooten observed a warning sign posted on the control panel of his grain delivery truck. However, this premise is refuted by Wooten’s deposition testimony that he never observed such a sign on the control panel of his truck and that if such a sign was present, “it could have been covered up with crud.” In fact, there is not any probative evidence supporting the majority’s assertion that a warning sign was posted on the delivery truck Wooten was operating at the time of the accident. James B. Roberts testified that he examined a grain delivery truck at Wooten’s place of employment sometime after Wooten’s accident; that he was informed by another that this was the truck Wooten operated on the day of the accident and that this truck displayed a sign with the following warning: “Do not operate near electrical lines.” However, there is no proof that Roberts had first-hand knowledge that this warning sign was attached to the truck when Wooten was injured or that the truck he examined was the vehicle Wooten operated on the day of the accident. Consequently, Roberts’ testimony that he observed a warning sign on a truck said to be operated by Wooten at the time Wooten was injured is hearsay, and hearsay, even when admitted without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2), supra.

Decided July 15, 1994

Reconsideration denied July 29, 1994

William R. McCracken, for appellant.

Haygood, Lynch, Harris & Melton, C. Robert Melton, for appel-lee.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this dissent.


author: Pope, Chief Judge. Smith, Judge,

text:
    A94A0739.
    CROSLAND et al. v. BUTTS COUNTY BOARD OF ZONING APPEALS et al.
    (448 SE2d 454)
   Pope, Chief Judge.

On April 23, 1993, the Butts County Board of Zoning Appeals (“the Board”) approved, subject to certain conditions, Pine Ridge Recycling, Inc.’s (Pine Ridge) request for a special exception permit to develop a solid waste landfill in Butts County. Appellant Walter Cros-land filed a petition to set aside the Board’s action and for mandamus against Butts County and the members of the Board of Zoning Appeals alleging, inter alia, violations of Georgia’s Open Meetings Act and of certain local ordinances requiring notice to adjoining landowners. Pine Ridge was subsequently added as a party defendant to this action. The Board answered, and admitted to meeting on the special exception request without advance notice and that certain adjacent landowners were not properly notified. Pine Ridge filed a separate answer and counterclaim, and on February 18, 1993, Pine Ridge filed a motion for summary judgment contending in part that Crosland had no standing to raise the issues asserted in his petition and that although non-public meetings may have been held, no “official action” was “taken” at these meetings in violation of the Open Meetings Act. On March 10, 1993, Trina S. Doolittle and Larry Vincent Doolittle, also appellants herein, filed their motion to intervene as plaintiffs. In their proposed intervenor complaint, the Doolittles asserted, inter alia, the Board’s failure to notify them as adjoining landowners. On October 25, 1993, the trial court entered an order granting summary judgment to Pine Ridge on the basis there had been no violations of Georgia’s Open Meetings Act. The trial court also denied the Doolit-tles’ motion to intervene. Crosland and the Doolittles then filed the present appeal to this court.

1. In beginning our analysis under Georgia’s Open Meetings Act, “ ‘(w)e must bear in mind that the Open Meetings Act must be broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings. (Cit.)’ Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (2) (405 SE2d 655) (1991). ‘(T)he policy of this state is that the public’s business must be open, not only to protect against potential abuse, but also to maintain the public’s confidence in its officials. (Cit.)’ Red & Black Pub. Co. [c. Bd. of Regents, 262 Ga. 848, 854 (427 SE2d 257) (1993)]. ‘(T)he test for its applicability is two-pronged: first, is the meeting one of a “governing body of an agency” or any committee thereof?; and second, is the meeting one “at which official business or policy of the agency is to be discussed or at which official action is to be taken(?)” ’ Id. at 853.” Jersawitz v. Fortson, 213 Ga. App. 796, 798 (446 SE2d 206) (1994).

Our review of the record in this case makes it clear that a genuine issue of material fact exists as to whether the Open Meetings Act was violated at certain non-public meetings attended by members of the Board, the county attorney and others. Claude Maddox, who was chairman of the Board of Appeals at the time these meetings were held, and Paul Hemmann, the county’s attorney, both averred in their affidavits that a quorum of the Board, Hemmann and the administrative assistant to the Board met prior to the March 26 and April 23 public hearings on Pine Ridge’s petition. However, according to Maddox the “substantive merits” of the request were not discussed at these meetings, and he and the other Board member present “scrupulously avoided discussing that subject with one another.” Maddox further averred that the decision to issue the special use permit to Pine Ridge was not in any sense “adopted, taken or made” at these preliminary meetings. In contrast to Maddox’s affidavit, Hemmann averred that at these early meetings, “decisions were reached on the granting of the petition” after discussing its substantive merits and a variety of related issues. Hemmann said: “Maddox stated to me at the April 23 meeting at 6:00 p.m. that he had a list of conditions he intended to impose on the Pine Ridge permit. He proposed to read these out to [Board member] Payne and me for comment and did so. He stated he had decided the Pine Ridge petition should be approved with these conditions. He asked Payne if he had any others to add. Payne indicated that he agreed with Maddox’s list of conditions and did not have anything to add or change. The issue, for all intents and purposes, had been decided.”

The foregoing, as well as other evidence of record, demonstrates a conflict as to what action was or was not taken at the non-public meetings on Pine Ridge’s petition for a special use permit. Indeed, in its brief on appeal the Board acknowledges that “a factual conflict existed below as to what was or was not decided at nonpublic meetings.” Although the dissent is correct that simply discussing the permit application at the non-public meetings would not result in invalidation of its approval, Hemmann stated in his affidavit that the decision to grant the special use permit was “announced” at the public meeting after “decisions were reached on the granting of the petition” at the non-public meetings. Stated another way, the conflicting evidence suggests the petition may have been “acted on” by the “officials” charged with taking the “official action” at these non-public meetings. The trial court thus erred in granting Pine Ridge’s motion for summary judgment on this issue.

2. The plaintiffs also contend that the trial court erred in denying the Doolittles’ motion to intervene, and in failing to address a motion to strike an affidavit filed by Pine Ridge which pertained to the motion to intervene. Our review of the trial court’s order shows that its denial of the motion to intervene was based on its finding that there had been no Open Meetings Act violation. Having determined that the grant of summary judgment on that issue was improper, it becomes necessary to consider whether the motion to intervene should be granted under OCGA § 9-11-24. Because the decision concerning the grant or denial of a motion to intervene requires the trial court to make certain factual determinations, see Southwest Ga. Prod. Credit Assn. v. Wainwright, 241 Ga. 355, 356 (2) (245 SE2d 306) (1978), the trial court is directed upon remand to consider whether the Doolittles’ motion to intervene should be granted under either OCGA § 9-11-24 (a) (intervention of right) or OCGA § 9-11-24 (b) (permissive intervention).

Judgment reversed and case remanded with direction.

McMur-ray, P. J., Beasley, P. J., Blackburn, J., and Senior Appellate Judge Harold R. Banke concur. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I agree that a factual conflict exists in this case. Unlike the majority, however, I do not believe we may end our analysis there. We must also determine whether the conflict in the evidence is material and whether appellees were entitled to judgment as a matter of law. Further analysis leads me to conclude that the factual conflict is not material and that appellees are entitled to judgment. Therefore, I respectfully dissent.

OCGA § 50-14-1 et seq., commonly known as the Open Meetings Act, originally provided only that meetings “at which official actions are to be taken” must be public. Ga. L. 1972, p. 575, § 1. The Act was amended in 1982 to include in the category of meetings that must be opened to the public those “at which proposed official action is to be discussed.” Ga. L. 1982, pp. 1810, 1811, § 1. That is the law applicable to this action. OCGA § 50-14-1 (a) (2). There is no doubt, therefore, that if the permit was “discussed” at the closed meetings the Act was violated.

That does not necessarily mean, however, that the fact issue regarding whether or not the permit application was discussed at the closed meetings is determinative of the outcome of this case. In fact, a careful reading of OCGA § 50-14-1 (b) leads me to the conclusion that resolution of this fact issue is irrelevant to the outcome of this lawsuit.

The plaintiffs in this action seek to invalidate the approval of the permit under OCGA § 50-14-1 (b). That statute provides only that “[a]ny resolution, rule, regulation, ordinance, or other official action of an agency adopted, taken, or made at a meeting which is not open to the public as required by this chapter shall not be binding.” Since it is undisputed that the resolution, which is the “official action” taken here, was passed at an open meeting, after public hearings, it would not be invalidated because of any discussion about it at the prior closed meetings.

The majority glosses over this undisputed fact, finding that Hem-mann’s affidavit, which “suggests” the petition “may have been ‘acted on,’ ” at least “de facto,” at a closed meeting, is sufficient to create a material issue of fact.

I cannot agree. Although Hemmann may state what he knows took place at the closed meetings, any implication that those discussions were “de facto decisions” and therefore the real “official action” is merely conclusory. As such, it is insufficient to create an issue of fact. “ ‘(I)t is clearly the law that. . . affidavits containing mere legal conclusions . . . present no issues of fact on a motion for summary judgment. An affidavit in contravention of a motion for summary judgment must state more than mere conclusions; it must state specific adverse facts.’ [Cit.]” Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879-880 (1) (b) (354 SE2d 204) (1987).

Hemmann’s conclusions are not even correct. Regardless of what transpired at the closed meetings, labelling the decision granting the permit at the open meeting an “announcement” cannot change its character. It was the “official action” taken. “Official action is action which is taken by virtue of power granted by law, or by virtue of the office held, to act for and in behalf of the State.” McLarty v. Bd. of Regents, 231 Ga. 22 (200 SE2d 117) (1973) (construing Open Meetings Act). Any group may hold a discussion. Only those groups exercising the granted power to act on behalf of the State may take “official action.” Regardless of their nature, the discussions at the closed meetings had no official authority and did not constitute “official action.” It was necessary to pass the resolution.

Decided July 15, 1994

Reconsideration denied July 29, 1994

Wright & King, Judy C. King, for appellants.

William A. Fears, Huddleston & Medori, Kathryn M. Zickert, George E. Butler II, Smith, Gambrell & Russell, Stephen E. O’Day, for appellees.

I realize the sensitive and important nature of the matters allegedly discussed at the closed meetings. The Act does provide for a remedy for a violation such as that alleged here: an injunction could have issued prohibiting further closed meetings. OCGA § 50-14-5 (a). Penalties may be imposed. OCGA § 50-14-5 (b). The Act simply does not provide for invalidating the permit unless the “official action” was taken at a closed meeting.

If this seems harsh, the legislature must act to ease the burden. “In 1848, this court held that ‘ [t] he current of authority in this country, at least at the present day, is in favor of reading [statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.’ [Cit.] This principle remains intact today.” Earth Mgmt. v. Heard County, 248 Ga. 442, 444 (283 SE2d 455) (1981). OCGA § 50-14-1 (b) is plain on its face. It expressly authorizes invalidation only when the “official action” was taken at a closed meeting in violation of the statute. It is plain and unambiguous and capable of only one construction; this court has no authority to place a different construction upon it. Regency Nissan v. Taylor, 194 Ga. App. 645, 648 (3) (391 SE2d 467) (1990).

No court would be authorized to invalidate the permit even if the factual question is resolved by determining that the permit was discussed at the prior closed meetings, violating the Act. Appellees were therefore entitled to judgment as a matter of law on this issue. This also renders moot the issues raised by appellants in their remaining enumerations of error. Consequently, I would affirm the judgment below.

I am authorized to state that Presiding Judge Birdsong, Judge Andrews and Judge Johnson join in this dissent.


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

text:
    A94A0792.
    ALLSTATE INSURANCE COMPANY v. BRANNON et al.
    (447 SE2d 666)
   Pope, Chief Judge.

Allstate Insurance Company (“Allstate”) brought this declaratory judgment action seeking a determination as to its duty to defend and indemnify its insured, Jimmy Dowda, in a tort action filed against him by appellee/Shane Brannon. Allstate alleged it was not obligated to defend or indemnify Dowda because liability coverage was excluded by three separate exclusions. Factual issues were submitted to the jury by way of special interrogatories. The jury found these policy exclusions inapplicable to the facts of the case and judgment was entered on the special verdicts. The trial court denied Allstate’s motion for new trial and this direct appeal followed.

As is pertinent here, the evidence shows the following: Shane Brannon is married to Dowda’s stepdaughter, Sandy. The Brannons had purchased a mobile home which was not yet habitable, and the Brannons were staying for brief periods with various relatives. On June 22, 1991, the Brannons were staying at Dowda’s home. Shane Brannon had been out drinking that Saturday night with Dowda’s stepson, and when he arrived home, he and Sandy started arguing. Dowda was downstairs and could hear Sandy and Shane arguing upstairs in the attic. When Dowda heard Sandy cry out “Get him out of here,” he ordered Shane downstairs. According to Brannon, Dowda told him “you need to leave.” Brannon came downstairs and he and Dowda started arguing. Dowda told Brannon to leave and Brannon responded by telling the older man to “Come outside.” Dowda went out on his porch with a loaded pistol (a Smith & Wesson .44 Magnum with an adjusted light trigger pull) and told Brannon to “just get on down the road.” As Brannon took a step forward, Dowda cocked the trigger and called out “Now, stop.” Dowda’s wife tried to grab the pistol from his hand, causing the weapon to discharge and strike Brannon in the left forearm.

1. Allstate contends that the trial court erred by charging the jury as to certain legal principles applicable to the construction of the insurance policy. Specifically, Allstate enumerates as error the following charge: “Now I charge you, ladies and gentleman, that an insurance policy is a contract. I charge you that an exclusionary provision in an insurance contract is to be construed strictly against the insurer, but it is equally true that the construction must be a reasonable construction.”

This court has consistently held that charging the jury on legal principles dealing with contract construction constitutes reversible error. Likewise, it was error in the instant case to give the jury the quoted charge on contract construction. It is not the province of the jury to construe unambiguous contracts. Empire Mills Co. v. Burrell Engineering &c. Co., 18 Ga. App. 253 (1) (89 SE 530) (1916). OCGA § 13-2-1 provides: “The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” “ ‘The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts. Except in cases where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract, it is improper to submit to the jury any question as to the construction of the contract. Except in such cases it is clearly error and improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed. . . .’ California Ins. Co. v. Blumberg, 101 Ga. App. 587, 591-592 (115 SE2d 266) (1960).” (Emphasis supplied.) Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 336 (3) (291 SE2d 410) (1982).

There was no issue in this case concerning the meaning of the exclusionary provisions themselves. The only issues in this case were whether actions by the insured did or did not fall within the clear and unambiguous terms of the policy exclusions. See Colonial Penn, 162 Ga. App. at 336 (3) (holding charge on construction was improper when only issue was whether bodily injury was either expected or intended from the standpoint of the insured) and Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874 (285 SE2d 566) (1981) (holding improper to charge on construction when only issue was whether property damage was either expected or intended from the standpoint of the insured). The issues here were whether the facts showed: 1) Brannon was an insured under the policy as a relative of the named insured residing in the same household; 2) Brannon was injured as a result of Dowda’s intentional act; and 3) the shooting was a criminal act. There was nothing for the jury to construe and furnishing the foregoing instruction “injected into the case issues not proper for the jury to consider.” Blumberg at 592.

We also reject the contention that submission of these questions to the jury by means of special interrogatories removed any possibility of placing improper issues before the jury. In the whole court case of Ga. Farm Bureau Mut. Ins. Co. v. Burnett, 167 Ga. App. 480 (2) (306 SE2d 734) (1983) a majority of this court held that charging the jury to construe the insurance contract in favor of the insured and against the insurer constituted reversible error. In that declaratory judgment action, as in the case at bar, the factual issues were presented to the jury by way of special interrogatory and the policy provisions were not in issue. Like the majority in Ga. Farm Bureau, we conclude the error in charging the jury in this case cannot be deemed harmless, Colonial Penn, 162 Ga. App. at 336 (3), and Allstate is entitled to a new trial.

2. Allstate also asserts the trial court erroneously recharged the jury on the definition of “resident” as that term is used in the policy provisions defining insured persons in addition to the named insured and his spouse. The record reflects the trial court correctly charged the jury twice on this definition. However, when the trial court, upon request of a juror, repeated the instruction for a third time he changed an “or” to an “and,” so that an exclusion applicable in the disjunctive became applicable in the conjunctive. This misstatement was clearly a slip of the tongue and is unlikely to occur on retrial. Moreover, this palpable slip of the tongue resulted in harmless error in the context of the entire charge. See Rodriguez v. State, 211 Ga. App. 256, 257 (3) (439 SE2d 510) (1993). It follows that the trial court did not err in overruling the motion for new trial on this ground.

3. Since the issue may arise on retrial, we consider Allstate’s third enumeration of error which contends that the trial court impermissi-bly allowed the introduction of evidence relating to injuries received by Shane Brannon when such evidence was irrelevant to the trial of the declaratory judgment action and designed to gain sympathy from the jury. OCGA § 24-2-1 provides: “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” Allstate made a motion in limine “to preclude the defendants from going into any detail about the injuries to Shane Brannon, including trying to introduce any of his medical records or medical bills [or] any photographs of his injury. . . .” The trial court granted Allstate’s motion to the extent of prohibiting reference to medical bills or “embellishing” upon the extent of the injuries during opening statements and reserved ruling until proper objection was made to specific evidence produced at trial. Subsequently the trial court sustained Allstate’s relevancy objection to the exhibit proffered by Brannon summarizing his medical expenses but permitted Brannon to mention the total amount of his medical bills, which he testified came to $42,500. We agree with Allstate that the amount of Brannon’s medical expenses is irrelevant to the issue of whether the shooting was either intentional or criminal. However, Allstate wanted the jury to draw the inference that Brannon was a “resident” within the meaning of one of the exclusions based upon testimony that he continued to live at Dowda’s after the shooting. Such an inference was properly the subject of explanation and rebuttal. In this limited sense, the evidence of Bran-non’s financial straits was probative of and relevant to the issue of his intent, or lack thereof, to become a “resident” of Dowda’s household. “The most acceptable test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. McCormick, Evidence 2d, p. 437 (1972). See also OCGA § 24-2-1.” Southern R. Co. v. Lawson, 256 Ga. 798, 802 (4) (353 SE2d 491) (1987). Due to the issues cast by Allstate’s allegations and evidence, we find no error in the admission of the single statement that Brannon had incurred $42,500 in medical expenses, over Allstate’s relevancy objection.

4. Allstate also contends the trial court improperly allowed evidence of Allstate’s worldly circumstances. The record shows the following on the cross-examination of the representative of Allstate, Max Conn, by counsel for Dowda:

“Q: You’re not controverting — You didn’t send the reservation of rights on this claim because of the financial position of Allstate, did you? A: No, sir. Q: The Company is worth, what, several billion dollars? A: I don’t have any knowledge of that. [Counsel for Allstate]: Your honor, I’m going to object to that. [The Court]: I think, [counselor], I instructed everybody to stay away from the financial conditions of all the parties, including Allstate. [Counsel for Dowda]: Oh, I wasn’t aware of that. . . . I’m sorry. [The Court]: I think my ruling was as to all parties. [Counsel for Dowda]: Okay, I’ll withdraw my question. [Counsel for Allstate]: I’ll renew my earlier motion, your honor. [The Court]: Excuse me, [counsel]? [Counsel for Allstate]: I renew my earlier motion on that matter. [The Court]: I’ll deny your earlier motion. Thank you, sir.”

“The general rule is that evidence of the wealth or worldly circumstances of a party litigant is never admissible, except in those cases where position or wealth is necessarily involved.” (Citations omitted.) Northwestern Univ. v. Crisp, 211 Ga. 636, 641 (2) (88 SE2d 26) (1955). The trial court previously ruled such evidence of Allstate’s worldly circumstances inadmissible. Any misunderstanding pertaining to the applicability of the previous ruling was properly clarified by the trial court, thereby obviating any likelihood of error on retrial. Moreover, the trial court’s admonition to counsel to avoid certain matters already excluded by its previous ruling is “tantamount to a rebuke and sufficient under the circumstances.” Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 711 (5) (181 SE 315) (1935). The trial court did not abuse its discretion in overruling the objection under the circumstances of this case.

5. Allstate enumerates the denial of its motion for new trial, asserting that the verdict is contrary to the law, evidence, and is strongly against the weight of the evidence. In its brief, Allstate moves this court for a new trial, citing OCGA §§ 5-5-20 and 5-5-21. No court except the trial court is vested with the authority to grant a new trial in a matter relating to the weight of the evidence. See Perryman v. State, 63 Ga. App. 819, 820 (5) (12 SE2d 388) (1940). “The appellate courts are not vested with discretion in this regard as are the judges of the trial courts.” Gledhill v. Brown, 44 Ga. App. 670, 671 (1) (162 SE 824) (1932). Beyond addressing to this court a request for new trial made on unavailable grounds, no argument or citation of authority is presented in support of this enumeration of the general grounds except to restate it. “ ‘That does not constitute an argument in support of the enumeration of error. Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630) (1977). There being neither argument nor citation of authority offered in support of the enumeration of error, it is deemed abandoned. Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia.’ Southern R. Co. v. Ga. Kraft Co., 183 Ga. App. 884, 886 (7), 887 (360 SE2d 605) [(1988)].” Lissmore v. Kincade, 188 Ga. App. 548, 550 (3) (373 SE2d 819) (1988).

Judgment reversed.

Birdsong, P. J., Andrews, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., Beasley, P. J., and Senior Appellate Judge Harold R. Banke concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent from Division 1 and from the judgment of reversal as it is my view that the plaintiff in this declaratory judgment action, Allstate Insurance Company, (“Allstate”), was not harmed by the erroneous giving of an inapplicable jury instruction on construction of the insurance contract. This erroneous charge did not effectively direct the verdict against Allstate. Consequently, the special interrogatories insulated Allstate against the likely harm occasioned by the trial court’s inapplicable instruction. It follows that such harmless error does not require a new trial. I fully concur in Divisions 2, 3, 4, and 5.

Allstate alleged that no coverage was afforded to its insured, Jimmy Dowda, for the injuries Shane Brannon received when Dowda’s gun discharged. Allstate relied on the provisions of three separate exclusions. First, Allstate contended that Brannon was an insured under Dowda’s policy as a relative of the named insured residing in the same household, making applicable an exclusion which denies coverage for bodily injury to “an insured person whenever any benefit of this coverage would accrue directly or indirectly to an insured person.” Secondly, Allstate claimed that Brannon was injured as a result of Dowda’s intentional act. Lastly, it was contended that coverage was excluded because the shooting was a criminal act. The case was tried before a jury. Special interrogatories were submitted to resolve specific factual matters regarding the applicability of these exclusions. The jury found the policy exclusions inapplicable to the facts of the case and judgment was entered on the special verdicts. Allstate’s motion for new trial was overruled and this direct appeal followed.

In its first enumeration, Allstate contends the trial court erred in giving the following jury instruction: “[A]n insurance policy is a contract. I charge you that an exclusionary provision in an insurance contract is to be construed strictly against the insurer, but it is equally true that the construction must be a reasonable construction.” Relying on Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 334 (2), 335 (291 SE2d 410), Allstate argues that this charge on certain legal principles applicable to the construction of an ambiguous term in an insurance contract was harmful error, because no such jury question was presented.

“ ‘(I)t is not the province of the jury to construe unambiguous contracts. In fact it is error to submit such question to the jury. (Cit.) The duty to construe contracts is upon the court. (Cits.)’ American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576, 579 [(200 SE2d 281)].” Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 879 (3), 881 (285 SE2d 566). “ ‘Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. (Cits.) Insurance policies being contracts, the decisions have held that the matter of construction is for the court. (Cits.)’ American Cas. Co. v. Crain-Daly, 129 Ga. App. 576, 579[, supra].” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (3), 336, supra. I agree with Allstate and the majority that, in the case sub judice, no issue was timely raised below as to any possible ambiguity in any of the exclusions sought to be applied. But see Southeastern Fidelity Ins. Co. v. Fluellen, 128 Ga. App. 877, 879 (198 SE2d 407) (physical precedent). However, an erroneous or unwarranted submission of the contract to the jury for contract construction was not necessarily harmful error, Tilton v. Butts, DePue & Co., 78 Ga. 30, hn. 1, and it is at this juncture that my analysis differs from that of the majority.

“While it is the duty of the court to construe a written contract, still a new trial will not be granted for failure to discharge this duty where the contract is submitted to the jury and properly construed by them. Especially is this true in a case where, if the contract had been properly construed by the court, the construction would have been adverse to the plaintiff in error and the result would have been the same as reached by the jury in their verdict. Main v. Simmons, 2 Ga. App. 821 (59 SE 85); [cit.].” South Ga. Trust Co. v. Neal, 174 Ga. 24, hn. 2 (161 SE 815). The special verdict form employed in the case sub judice shows that the jury was instructed to make three determinations which were strictly factual: (1) Was Brannon a resident of Dowda’s household at the time of the shooting?; (2) Was the shooting a criminal act, and if so, was it justified?; and (3) Was the shooting intended or expected from the perspective of the insured, Dowda? I fully agree that the trial court erred in giving the inapplicable two-sentence charge on the construction of exclusionary provisions contained in a contract of insurance, regardless of whether that “construction must be a reasonable construction.” However, it is my view that, the jury in fact did not construe the contract but were narrowly directed to purely factual matters by virtue of the special verdict. Accordingly, the unwarranted instruction in the case sub judice cannot be said to have effectively directed a verdict against the insurer, as was the case in Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 879 (3), supra. It follows that the error in giving this unwarranted instruction was immaterial to the issues actually decided by the jury and the trial court did not err in overruling the insurer’s motion for new trial on this ground. South Ga. Trust Co. v. Neal, 174 Ga. 24, 25, hn. 5, supra. I would distinguish the whole court case of Ga. Farm Bureau Mut. Ins. Co. v. Burnett, 167 Ga. App. 480, 482 (2), 483 (306 SE2d 734), relied upon by the majority. In Ga. Farm Bureau, the trial court gave an inapplicable jury charge on the construction of ambiguities with regard to an unambiguous exclusionary clause in an automobile insurance policy. This inapplicable instruction could not be deemed harmless error despite the use of special interrogatories where this court had already determined that the trial court erroneously directed a verdict in favor of the insured as to one of two factual issues determining coverage vel non for gunshot injuries sustained when insured intentionally pointed a loaded gun at another. As it is my view that this authority is not controlling under the facts of the case sub judice, I would apply the harmless error analysis employed by the Georgia Supreme Court in South Ga. Trust Co. v. Neal, 174 Ga. 24, hn. 2, supra, and hold that a new trial is not mandated by the harmless error presented in this case. Consequently, I respectfully dissent from Division 1 of the majority opinion and from the judgment of reversal.

I am authorized to state that Presiding Judge Beasley and Senior Appellate Judge Harold R. Banke join in this opinion.

Decided July 15, 1994

Reconsideration denied July 29, 1994.

Downey & Cleveland, Russell B. Davis, W. Curtis Anderson, for appellant.

Parker & Lundy, William L. Lundy, Jr., Mundy & Gammage, Miles L. Gammage, Daniel B. Simon III, for appellees.

       Two issues were presented by way of special interrogatories at the close of evidence for jury determination. The trial court granted a directed verdict in favor of the insured as to the first special interrogatory. The court then submitted the second to the jury to decide whether the shooting was unintentional.


author: Smith, Judge.

text:
    A94A0795.
    STRICKLAND v. HOWARD.
    (447 SE2d 637)
   Smith, Judge.

Freddie Lee Howard, a farm employee, brought this action against his employer, Paul Strickland, seeking recovery for an eye injury allegedly resulting from Strickland’s negligence. On the trial of the case, a jury found in favor of Howard, and Strickland appeals.

1. Strickland contends the trial court erred in failing to grant his motion for directed verdict. “A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. . . . Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for the jury’s resolution.” (Citations and punctuation omitted.) Jones v. Abel, 209 Ga. App. 889, 890 (2) (434 SE2d 822) (1993). Construed most strongly to support the jury’s verdict, the evidence showed that Strickland, a farmer, purchased a tract of land and employed Howard to clean it up. The clearing was done with a rotary cutter towed by a tractor and supplied with power from the tractor by means of a “power takeoff” or “PTO.” The tractor was an older model, and its clutch was worn to the point that the PTO could not be engaged or disengaged without turning off the tractor motor. The evidence is uncontroverted that Howard was aware of this clutch problem. Howard acknowledged he was aware of the propensity of a rotary cutter to throw objects. He also acknowledged he did not read the warnings printed on the rotary cutter itself.

When Howard reported to work on the afternoon of the incident, Strickland accompanied him to a former peach orchard that needed clearing, but Strickland did not inspect the area to be cleared before beginning work. Howard, driving the tractor and towing the rotary cutter, approached an old fence, and Strickland motioned to him to turn. As he made the turn or shortly thereafter, Howard heard the rotary cutter make an unusual noise. He turned to look without shutting off the tractor, and something struck him in the eye, lacerating his cornea. Later inspection revealed a pile of fence posts and wire concealed in the weeds and brush. Strickland and Howard both denied any prior knowledge of the presence of the posts and wire, and both testified they were not visible from the ground or the tractor.

Howard makes two contentions regarding Strickland’s duty as a master to furnish a safe place to work. First, he contends that Strickland violated his duty to provide a safe place to work by failing to inspect for hidden defects the field where Howard was working. Second, he contends that Strickland violated his duty under OCGA § 34-7-20 to furnish safe machinery because of the defect in the tractor PTO. As discussed in Division 2, infra, we find that no jury issue existed as to Strickland’s duty to furnish safe machinery under OCGA § 34-7-20. However, a jury issue was presented as to a breach of Strickland’s duty to inspect the workplace for hazards, and the court therefore properly allowed the issue of Strickland’s negligence to go to the jury.

“ ‘The duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant. [Cit.]’ ” Tect Constr. Co. v. Frymyer, 146 Ga. App. 300, 302 (1) (246 SE2d 334) (1978). “As to such, the owner has a duty to exercise ordinary care in keeping the premises safe. [Cits.] This includes ‘a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.’ [Cits.]” Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). “ ‘If the defect is latent, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not on the servant . . . the master owes to the servant the duty of inspection.’ [Cits.]” Rogers v. Bragg, 117 Ga. App. 295, 297 (160 SE2d 217) (1968).

The law requires the diligence of an ordinarily prudent person in making the premises safe, Barksdale, 203 Ga. App. at 185, and issues of diligence, negligence, and contributory negligence are issues for jury determination except in plain and indisputable cases. Johnson v. Ray, 206 Ga. App. 262, 263 (1) (424 SE2d 892) (1992). Strickland was present on the site and undertook to direct Howard in his cutting of the field. There was also evidence that some debris was visible in the field, such as the old fence, an electric fence, a partially built barn, and other piles of lumber. Therefore, a jury question existed as to whether Strickland breached his duty to examine the field for other, similar debris that reasonably might be expected to lie hidden in the weeds and brush.

2. Strickland also complains that the trial court’s charge on OCGA § 34-7-20 was not adjusted to the evidence. The trial court instructed the jury on Strickland’s duty to provide a safe place to work and to warn an employee with respect to any dangers incident to the work, then separately instructed the jury with respect to Strickland’s duty to furnish safe machinery under OCGA § 34-7-20. That Code section provides: “The employer . . . shall use [ordinary] care in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.”

A companion Code section, OCGA § 34-7-23, explicitly provides: “In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section 34-7-20, in order that the employee may recover it must appear that the employer knew or ought to have known ... of the defects or danger in the machinery supplied-, and it must also appear that the employee injured did not know and had not equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.” (Emphasis supplied.)

There was no basis for a recovery for furnishing defective machinery under OCGA § 34-7-20, because the evidence is uncontro-verted that Howard had equal knowledge of the defect in the tractor PTO. His claim is barred by the plain language of OCGA § 34-7-23. See Clayton v. Larisey, 190 Ga. App. 512 (379 SE2d 789) (1989). The trial court’s separate instruction with regard to liability for furnishing defective machinery under OCGA § 34-7-20 was not adjusted to the evidence and therefore was erroneous.

“An inapplicable charge, even though it is a proper statement of the law, may still constitute harmful error. A determination of whether an inapplicable charge had a harmful effect in a given case is not dependent upon phraseology, but upon whether it is likely that the inapplicable charge misled the jury and affected the verdict. By giving a charge on an inapplicable principle of law, the trial court can mislead the jury into the erroneous belief that it would be authorized, under the evidence, to find the facts to which that inapplicable charge refers and to return its verdict based upon a legal theory that is, in reality, not supported by the evidence of record. ... If by the instructions the jury might reasonably be drawn away from the true issues in dispute to the prejudice of parties, the giving in charge of such inapplicable principles would be reversible error. An instruction as to the law on a material issue which is unauthorized by the evidence is improper, and, if it is not apparent that the jury could not have been misled thereby, it is cause for a new trial.” (Citations and punctuation omitted.) John D. Robinson Corp. v. Southern Marine &c. Co., 196 Ga. App. 402, 408-409 (14) (395 SE2d 837) (1990). Taken in conjunction with the instruction that a violation of OCGA § 34-7-20 constituted negligence per se, it is apparent that the jury could have been misled by the inapplicable charge. The general verdict might well, have been based, in whole or in part, on a finding that Strickland violated his duty to furnish reasonably safe machinery under OCGA § 34-7-20. For this reason, a new trial is required.

Decided July 8, 1994

Reconsideration denied July 29, 1994.

Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellant.

Whelchel, Whelchel & Carlton, James C. Whelchel, for appellee.

3. Strickland also complains that the charge on future earnings was not adjusted to the evidence. “Although in general, all future earnings or diminished future earnings are uncertain and difficult of ascertainment, this does not mean that a plaintiff should be denied a recovery. [Cit.] In order to recover, however, there must be evidence from which the jury can estimate, or reasonably infer the loss or decrease in the earning capacity. [Cit.] Where evidence is presented on the permanency of a plaintiff’s injury, the effect of the injury on earnings, and the monetary amount thereof, a jury charge on the loss of future earnings is authorized. [Cit.]” Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (1) (436 SE2d 803) (1993). “The quantum of evidence sufficient to support a charge and resulting verdict for loss of wages need not be substantial or even direct. It is enough if there is slight evidence which may give rise to an inference from which lost wages as damages may be drawn and computed. [Cit.]” Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 844 (2) (351 SE2d 82) (1986). Howard presented evidence that he was earning $120 per week before the injury, that his injury was severe, and that it prevented him from working. The trial court did not err in charging the jury on future earnings.

Judgment reversed.

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

       The provisions of the Georgia Workers’ Compensation Act do not apply to “farm laborers.” OCGA § 34-9-2 (a).

       We do not reach Strickland’s contention that a violation of OCGA § 34-7-20 cannot constitute negligence per se. A. F. King & Son v. Simmons, 107 Ga. App. 628, 633 (7) (131 SE2d 214) (1963); but see Teague v. Keith, 214 Ga. 853, 854 (1) (108 SE2d 489) (1959).


author: McMurray, Presiding Judge.

text:
    A94A0809.
    KING v. THE STATE.
    (447 SE2d 645)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with robbery by sudden snatching. The evidence adduced at the jury trial reveals the following: At about 9:00 in the evening on April 11, 1993, defendant entered a convenience store in Dougherty County, Georgia, and asked the store clerk (“the victim”) whether credit cards were accepted. The victim replied, “yes,” and defendant requested six cartons of cigarettes. The victim then placed six cartons of cigarettes (valued at $86) on the counter and “asked [defendant] if that was all. [Defendant] said yes, and [the victim turned his attention to the] gas console to the right of [his] register, . . . took [his] hand off of the [cigarettes] and reached over to check his gas[. At] that time [defendant] said something and went to walk out the door.” The victim “didn’t hear what [defendant] said[, but he saw that defendant] grabbed the cigarettes up [so he] turned around and asked [defendant] for the credit card[. Defendant] said something, [but again the victim] didn’t hear what [defendant] said[. Defendant then] took off out the door[, r]unning.” Shortly thereafter, Officer Walter Swearingen of the Albany Police Department apprehended defendant after stopping him in a blue pickup truck. Six cartons of cigarettes were found in the rear of the truck defendant was operating. The cigarettes matched the description of the cigarettes taken from the convenience store and were identified as store property.

The jury found defendant guilty of robbery by sudden snatching as charged. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his fifth enumeration, defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing that the uncontradicted evidence established that the victim was not aware the cigarettes had been stolen at the time of the actual taking.

“ ‘Robbery by sudden snatching is where no other force is used than is necessary to obtain possession of the property from the owner, who is off his guard, and where there is no resistance by the owner or injury to his person. Rivers v. State, 46 Ga. App. 778 (2) (169 SE 260).’ Edwards v. State, 224 Ga. 684, 686 (2) (164 SE2d 120).” Byrd v. State, 171 Ga. App. 344 (1) (319 SE2d 460). “[T]he only difference now between robbery [by sudden snatching] and larceny from the person is that in the latter case the property is abstracted without the knowledge of its possessor; but if the possessor becomes conscious, even in the taking, that his property is being taken away from him, and this knowledge is obtained before the taking is complete, the offense of robbery is committed.” Williams v. State, 9 Ga. App. 170 (1) (70 SE 890). In the case sub judice, the victim’s testimony indicates that he was aware defendant was stealing the cigarettes. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of robbery by sudden snatching as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Byrd v. State, 171 Ga. App. 344 (1), 345, supra. Compare McNearney v. State, 210 Ga. App. 582, 584 (436 SE2d 585). Consequently, the trial court did not err in denying defendant’s motion for directed verdict. Humphrey v. State, 252 Ga. 525, 526 (1), 527 (314 SE2d 436).

2. In his seventh enumeration, defendant maintains the trial court erred in refusing to give his request to charge on the lesser included offense of theft by taking.

Defendant submitted the following written request to charge: “A person commits the offense of theft by taking when that person unlawfully takes any property of another with the intention of depriving the other person of the property, regardless of the manner in which the property is taken or appropriated.” Although this request is an accurate statement of the law, OCGA § 16-8-2, the State argues that “[t]his Court and the Supreme Court have made it abundantly clear that where the evidence demonstrates that the greater offense has been completed, it is not necessary to charge on the lesser included oifcnsfis.”

“In State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), the Georgia Supreme Court expressly disapproved of that line of authority which had held that a lesser-included offense need not be charged unless the evidence showed that the defendant was guilty only of the lesser crime, and held that ‘(t)he correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser offense.’ (Emphasis supplied.)” Galbreath v. State, 213 Ga. App. 80, 81 (1) (443 SE2d 664). In the case sub judice, an eyewitness, Enoch Wingate, testified as follows: “A. [Defendant] asked for some cigarettes . . . and he then said — he looked up and turned around and he said the lady outside is going to pay for it, and he walked outside, and as soon as he got to the door, he took off toward the right.” This evidence would have authorized a finding that defendant committed the offense of theft by taking. See, e.g., Bonner v. State, 192 Ga. App. 721 (1) (386 SE2d 379). Further, when coupled with the victim’s testimony that the cigarettes were worth about $86, this theft would have been punishable as a misdemeanor pursuant to OCGA § 16-8-12 (a) (1). Under these circumstances, the controlling issue is whether theft by taking is a lesser included offense within the crime of robbery by sudden snatching.

“An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when . . . [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or . . . [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6.

OCGA § 16-8-40 (a) (3) provides that “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” The offense which is now prescribed as robbery by sudden snatching “was formerly larceny from the person and not robbery. Spencer v. State, 106 Ga. 692 (32 SE 849). In 1903 the General Assembly amended the definition of robbery to include robbery by sudden snatching, so that under the present law[, Ga. L. 1903, p. 43, Code Ann. § 26-2501, now OCGA § 16-8-40 (a),] the offense of robbery may be committed by three methods, that is, (1) by force, (2) by intimidation, and (3) by sudden snatching. See Hickey v. State, 125 Ga. 147 (53 SE 1026); Pride v. State, 124 Ga. 792 (53 SE 192).” Nelson v. State, 203 Ga. 330, 336 (4), 337 (46 SE2d 488). “Robbery always involves theft or attempt at theft, and theft always involves the taking, obtention, or appropriation of the property of another. It follows therefore that theft by taking, or the intent to commit this act, will generally be involved where the property is removed from the person of another. Under these circumstances [theft by taking necessarily is a lesser included offense to robbery by sudden snatching].” Hinton v. State, 127 Ga. App. 108 (192 SE2d 717). See Hensley v. State, 228 Ga. 501, 502 (2), 503 (186 SE2d 729). Consequently, since “there is evidence to support [defendant’s written request to charge on theft by taking and s]ince ‘a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense,’ State v. Alvarado, 260 Ga. 563, 564, [supra], the trial court’s failure to give the charge requested by the defendant constitutes reversible error.” Reinhardt v. State, 263 Ga. 113 (2), 114 (428 SE2d 333).

3. Defendant contends, in his ninth enumeration, the trial court erred in refusing to give a written request to charge on theft by deception as a lesser included offense. The request submitted was a verbatim quote from OCGA § 16-8-3 (a), (b) (1), (2), which Code section provides in pertinent part: “A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a). “A person deceives if he intentionally . . . [c] reates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false ... [or f] ails to correct a false impression of an existing fact or past event which he has previously created or confirmed.” OCGA § 16-8-3 (b) (1), (2).

“The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. See Shepherd v. State, 234 Ga. 75 (214 SE2d 535) (1975) (‘state’s evidence clearly warranted a charge on armed robbery . . . and there was no evidence of the lesser offense of theft by taking . . .’). Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444).

In order to commit the crime of theft by deception, the defendant’s deceptive act or false representation must have induced the victim to part with his property. OCGA § 16-8-3. See Ray v. State, 165 Ga. App. 89, 92 (2) (299 SE2d 584); Chandler v. State, 80 Ga. App. 550, 555 (56 SE2d 794); Suggs v. State, 69 Ga. App. 383, 388 (1) (25 SE2d 532). In the case sub judice, the evidence reveals that defendant took the cigarettes while the victim was distracted. It does not show that the victim was fraudulently induced to part with six cartons of cigarettes in reliance on defendant’s false statement that a woman would pay for the cigarettes. This evidence did not authorize a charge on theft by deception. Consequently, the trial court did not err in failing to so charge the jury. See Edwards v. State, 264 Ga. 131, 133, supra.

4. Defendant asserts in his eighth enumeration that the trial court erred in failing to give his written request to charge on shoplifting as a lesser included offense to robbery by sudden snatching. He submitted the following request: “A person commits the crime of theft by shoplifting when that person, with the intent of appropriating merchandise to the person’s own use without paying for it, or takes possession of the goods or merchandise of any store or retail establishment.”

“ ‘A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.’ Lewis v. State, 196 Ga. 755, 760 (3) (27 SE2d 659) (1943).” Kessel v. State, 236 Ga. 373, 374 (2) (223 SE2d 811). In the case sub judice, defendant’s request to charge on shoplifting is not a complete and accurate statement of the law. See OCGA § 16-8-14 (a). Although by all appearances, the omissions in this request to charge are due to typographical error, nevertheless, it was not error for the trial court to refuse to give a requested instruction which was incomplete. Daniels v. State, 184 Ga. App. 689 (1), 690 (362 SE2d 775). Nevertheless, the circumstances in the case sub judice reasonably raised the inference that defendant committed theft by shoplifting and authorized a proper request to charge on that offense. See State v. Alvarado, 260 Ga. 563, 564, supra.

5. In his first enumeration, defendant contends the trial court erred in allowing the State to introduce evidence of his previous conviction for robbery by sudden snatching, arguing that the earlier offense was not sufficiently similar.

“Before any evidence of an independent offense may be introduced, the State must show ‘that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. (Cit.)’ Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).” Campbell v. State, 263 Ga. 824 (2), 825 (440 SE2d 5). “The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried. Crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence. Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” State v. Johnson, 246 Ga. 654 (1), 655 (272 SE2d 321). “The true test of admissibility is not the number of similarities between the prior act and the act for which the accused is on trial, but whether the evidence of prior incidents is substantially relevant for some purpose other than to show that the accused was likely to commit the crime because he is a person of bad character. Bohannon v. State, 208 Ga. App. 576 (2b) (431 SE2d 149) (1993).” Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148). In the case sub judice, the State proffered defendant’s prior guilty plea to robbery by sudden snatching, plus the testimony of the off-duty officer who witnessed defendant grab the victim’s purse one night as the victim left a fast-food restaurant. Defendant argues that the similarities are sparse between the prior nighttime robbery by sudden snatching of a purse and this nighttime robbery by sudden snatching of merchandise from a convenience store.

“While Uniform Superior Court Rule 31.3 speaks of ‘similar’ transactions, the issue of admissibility of extrinsic transactions has never been one of ‘mere similarity.’ Williams v. State, 251 Ga. 749, 784 (312 SE2d 40) (1983). It is, rather, ‘relevance to the issues in the trial of the case.’ Id.” Brockman v. State, 263 Ga. 637, 639 (3), 640 (436 SE2d 316). A logical connection between separate crimes is established where “proof of the independent crime tends to establish . . . identity, bent of mind, or intent [in] the commission of the crime for which [the defendant] is on trial. [Cits.]” Stephens v. State, 261 Ga. 467, 468 (6), 469 (405 SE2d 483). In the case sub judice, the fact that defendant was the perpetrator of the earlier offense is established by his guilty plea. Weldon v. State, 202 Ga. App. 51 (2), 52 (413 SE2d 229). “The prior guilty plea to the charge of [robbery by sudden snatching] was substantially relevant to corroborate the identification of [defendant] as the [robber] here.” Evans v. State, 209 Ga. App. 606, 607 (2), supra.

Nevertheless, defendant urges that this enumeration is controlled by Higginbotham v. State, 207 Ga. App. 424 (428 SE2d 592), where this court held that evidence of a prior conviction for sudden snatching, which was not closely related in time, locality, or modus operandi, was inadmissible to prove identity or criminal intent. Id. at 426 (4), 427, supra. However, contrary to the analysis employed in Higgin-botham, the Georgia Supreme Court has determined that “[p]roof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” State v. Johnson, 246 Ga. 654 (1), 655, supra. In so holding, the Supreme Court would not concede “that the exceptions have swallowed the rule of inadmissibility of separate crimes.” State v. Johnson, 246 Ga. 654 (1), 655, supra. In the case sub judice, defendant’s prior guilty plea to robbery by sudden snatching was substantially relevant for the appropriate limited purpose of corroborating the testimony of his identity as the robber. The admission into evidence of that guilty plea was not clearly erroneous. See Stephens v. State, 261 Ga. 467, 468 (6), 469, fn. 2, supra. Compare Weems v. State, 204 Ga. App. 352, 354-355 (419 SE2d 346).

6. In his second enumeration, defendant contends the trial court erred in “allowing the ‘similar transaction witness’ to testify concerning statements made by the [defendant] following his previous arrest.” Specifically, defendant complains of the following testimony from Detective Charlie Poole of the Albany Police Department: “I believe he said that somebody else was with him, but I didn’t s$e anybody.” On appeal, defendant argues that the statement, should have been excluded, relying on the authority of Sessions v. State, 207 Ga. App. 609 (428 SE2d 652).

“A witness may testify as to what he saw and heard in the defendant’s presence. See Broome v. State, 141 Ga. App. 538 (2) (233 SE2d 883) (1977).” Moore v. State, 240 Ga. 210, 212 (2) (240 SE2d 68). Sessions v. State, 207 Ga. App. 609 (2), 610, supra, does not control. In Sessions, this court declined to rule on whether testimony concerning a statement defendant made to a police officer which demonstrated defendant’s familiarity with the criminal justice system constituted reversible error. Sessions v. State, 207 Ga. App. 609 (2), 610, fn. 1, supra. The trial court did not err in permitting Detective Poole to testify as to the in-custody statement defendant made in Poole’s presence. Moore v. State, 240 Ga. 210, 212 (2), supra.

7. Defendant contends in his third enumeration that the trial court erred in admitting a certified copy of his previous conviction for robbery by sudden snatching, arguing that “it is the similarity in the manner of commission and circumstances presented, rather than the fact of conviction, that is significant in considering the admissibility of ‘other crimes’ evidénce.”

“ ‘In order to justify the admission of evidence relating to an independent crime committed by the accused, it is absolutely essential that there should be evidence establishing the fact that the independent crime was committed by the accused . . Cawthon v. State, 119 Ga. 395, 409 (46 SE 897) (1904).” French v. State, 237 Ga. 620 (3), 621 (229 SE2d 410). “It is elementary that such documents [as the certified copy of defendant’s conviction] are admissible if they pertain to crimes concerning which testimony has been admitted and a foundation laid thereby. This enumeration ... is without merit.” Pope v. State, 178 Ga. App. 148, 149 (3) (342 SE2d 330).

8. In his fourth enumeration, defendant contends the trial court erred in refusing his request for a limiting instruction following the introduction of the similar transaction testimony. He argues that the trial court “ disregard [ed] defense counsel’s timely request for limiting instructions, and refus[ed] to explain that the evidence of an independent offense was admitted for a specific purpose.”

Detective Charles Poole of the Albany Police Department testified as to the circumstances underlying defendant’s prior guilty plea to robbery by sudden snatching. After direct examination of Detective Poole, the State’s Attorney tendered a certified copy of defendant’s conviction. The following then transpired: “[DEFENSE COUNSEL]: Your Honor, I have an objection to [defendant’s prior] plea of guilty being entered. I would ask the Court to give a limited instruction — [THE COURT]: I will. [DEFENSE COUNSEL]: — regarding its purpose. [THE COURT]: I will. [STATE’S ATTORNEY]: This will be State’s One. [DEFENSE COUNSEL]: Your Honor, I think it might be appropriate for the jury to go ahead and be informed that this is really not any proof of guilt in this matter but only as evidence regarding identity. [THE COURT]: Right. I’ll give it to them later. This has — doesn’t have any bearing on this case, whether he’s guilty or not guilty in this particular case. It’s a similar transaction and which I will give you later in the charge about similar transactions. [STATE’S ATTORNEY]: This witness is now with the Court, Your Honor.”

Defense counsel then began cross-examining Detective Poole without making further demand for a contemporaneous instruction. In its general charge to the jury, the trial court limited the purpose for which the jury could consider the similar transaction evidence in the exact language of defendant’s written request. “Accordingly, for all intents and purposes [in the case sub judice], the trial court complied with the only request that was ever made by [defendant to give any specific charge]. In response to [defendant’s written] request, the trial court gave limiting instructions [in its general charge]. Under these circumstances, there was no error in the trial court’s failure to have given additional contemporaneous limiting instructions [for defendant did not pursue that request after the trial court indicated it would give a limiting instruction in its general charge]. ‘He who acquiesces at trial is not permitted on appeal to predicate error thereupon. (Cit.)’ Causey v. State, 192 Ga. App. 294, 296 (1) (384 SE2d 674) (1989).” Hyde v. State, 205 Ga. App. 754, 757 (3), 758 (424 SE2d 39).

Decided July 13, 1994

Reconsideration denied July 29, 1994

Dorough & Sizemore, Kermit S. Borough, Jr., W. James Size-more, Jr., for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

9. In his sixth enumeration, defendant contends “[t]he trial court erred in refusing to include the defendant’s fourth request to charge, ‘immunity or leniency granted to witness.’ ” This contention is without merit.

“The trial court gave a general charge on the credibility of witnesses, including an instruction that the jury could consider the interest or want of interest of a witness in determining his credibility. ‘The failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles. (Cits.) ... As the jury charge as given [in the case sub judice] covered substantially the same issues as the requested (charge), we find no error.’ Stephens v. State, 196 Ga. App. 29 (2) (395 SE2d 353) (1990).” Kennedy v. State, 205 Ga. App. 152, 155 (5), 156 (5b) (421 SE2d 560).

10. Defendant contends in his final enumeration that the trial court erroneously imposed the maximum sentence authorized by law. In light of our reversal of defendant’s conviction for robbery by sudden snatching, this enumeration of error is moot. OCGA § 5-6-48 (b) (3).

Judgment reversed.

Pope, C. J., and Smith, J., concur.