text:
    A95A1631.
    UNITED PARCEL SERVICE et al. v. CULPEPPER.
    (465 SE2d 709)
   Ruffin, Judge.

On April 3, 1989, Tina Culpepper, a United Parcel Service (“UPS”) employee, was injured at work when a 50 to 65 pound package fell on her leg. Culpepper’s calf swelled, and she went to the emergency room where the doctor prescribed an ice pack and ointment. After elevating her leg, the swelling subsided, and Culpepper did not miss any work as a result of the injury. No benefits were paid, although UPS paid for the medical treatment. In July 1993, Culpepper visited a company physician when her calf again began hurting. Culpepper testified that her leg started hurting after standing for long periods of time. The physician found that the injury was “definitely a result of the traumatic injury [Culpepper] received at work.” While continuing to work, Culpepper then sought authorization for medical treatment from UPS’s workers’ compensation insurer, Liberty Mutual Insurance Company (“Liberty”). Liberty Mutual denied coverage, asserting the claim was barred by the one-year statute of limitation.

The ALJ concluded that Culpepper suffered a fictional new injury that resulted from employment-related aggravation to her preexisting injury and therefore authorized the requested treatment under Central State Hosp. v. James, 147 Ga. App. 308 (248 SE2d 678) (1978). The Board adopted the ALJ’s award finding that under James, the fictional new injury established a new date for the beginning of the limitation period. The superior court affirmed the Board’s award and we granted UPS’s application for discretionary review. Because we agree that this case is controlled by James, we affirm.

UPS contends that this case is controlled by Wier v. Skyline Messenger Svc., 203 Ga. App. 673 (417 SE2d 693) (1992). In Wier, the claimant injured her knee in a job-related accident. The claimant lost no time from work as a result of the injury and her employer voluntarily paid her medical bills. Approximately 16 months after her last visit to the doctor, the claimant’s knee “gave way on her at home” and she filed for medical only benefits. Id. at 674. In affirming the Board’s denial of benefits, this court held that the one-year statute of limitation in OCGA § 34-9-82 (a), applies to claims for medical only benefits. We concluded by stating that “if a worker wishes to preserve his lifetime right to treatment for a work injury for which no treatment is needed within a one-year period, a claim must be filed.” Id. at 676. UPS relies on that concluding statement in Wier to support its contention that in July 1993, the one-year limitation period expired in this case and therefore the Board erred in awarding Culpepper benefits.

OCGA § 34-9-82 (a) provides that an employee’s “right to compensation shall be barred unless a claim therefor is filed within one year after injury. . . .” However, “[u]nder the broad definition of the term ‘accident’ as used in our workmen’s compensation law, if the employee continued to perform the duties of the employment and thereby aggravated the initial injury, this would amount to a new ‘injury by accident.’ ” Mallory v. American Cas. Co., 114 Ga. App. 641, 643 (4) (152 SE2d 592) (1966). In James, supra, we described three frequently occurring circumstances in which the Board and courts are required to distinguish between old and new injuries. Under facts such as exist in this case, we concluded that the limitation period does not begin to run until the disability resulting from the reinjury manifests itself. James, supra. While in James we addressed a situation where the disability manifested itself in such a manner that the employee was forced to stop working, we believe that an injury manifesting itself in such a manner that allows an employee to keep working but demands medical treatment should be afforded the same consideration. If we were to hold otherwise it would penalize an employee who attempts to continue working even though he is injured. See id.

While the facts in Wier are similar to the facts in this case, because that decision did not purport to address whether the fictional new accident theory applied to those facts, it is not in conflict with the Board’s award. In this case the Board did not find that the one-year statute of limitation was inapplicable, rather, it found only that it did not begin to run until the date of the new injury. Because there was evidence to support the Board’s finding that Culpepper suffered a new injury, we conclude that it correctly ruled that Culpepper’s claim was not barred by the statute of limitation.

Decided December 1, 1995

Reconsideration denied December 19, 1995

Hines & Head, Michael D. Usry, for appellants.

Tina L. Culpepper, pro se.

Judgment affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A1659.
    STATEN v. THE STATE.
    (466 SE2d 20)
   Ruffin, Judge.

During a two-week period in January 1994, Anthony Staten and his co-defendant robbed or attempted to rob five retail establishments in DeKalb County. Staten was indicted for robbery and aggravated assault in connection with three of the incidents, and the other two incidents were admitted as similar transactions at trial. Staten was convicted by a jury of all three counts. He appeals the judgment of conviction following the denial of his motion for new trial. For reasons which follow, we affirm.

Viewed in the light most favorable to support the jury’s verdict, the evidence showed that shortly after midnight on January 26, 1994, a police officer pulled over a Pontiac 6000 with tag number CAC779 because the car had been reported stolen by Staten’s wife, Patricia Staten. Staten was the driver, and the officer released him because both he and his wife were registered owners of the car. Later that day, Staten’s co-defendant entered a Starvin Marvin convenience store, approached the counter to pay for a pack of cigarettes, grabbed the cash drawer, and ran out the door. The clerk saw the getaway car and told police its tag number was CAC779. On January 27, the co-defendant entered a Thriftown grocery store, approached the clerk with a package of gum, snatched money from the cash register, and ran. The store owner followed the robber and saw him enter the passenger side of a Pontiac 6000. A witness reported the car’s tag number as CAC977 or CAC979. On January 30, the co-defendant entered a Mountain Farms gas station and convenience store, demanded money from the clerk, grabbed the cash register, and ran outside to an awaiting car with tag number CAC779. On February 1, Staten and his co-defendant took a cab together to an Ingles grocery store, exited the cab, and proceeded individually to commit two attempted robberies of a dry cleaner and a package store. Responding to calls from these locations, police arrested the pair in the cab shortly thereafter. After his arrest, Staten gave a statement to police in which he admitted he was driving the car involved in the Thriftown incident.

1. Staten contends the trial court erred in admitting similar transaction evidence which he argues violated Uniform Superior Court Rule 31.3. We disagree. The trial transcript demonstrates that the State sought to introduce as evidence of the similar transactions, the Starvin Marvin and Mountain Farms robberies, in connection with Count 1 of the indictment for the Thriftown robbery.

Evidence of independent crimes is admissible “if the state makes three showings: (1) that the evidence is offered, not to raise an improper inference regarding the character of the defendant, but for a proper purpose; (2) that there is sufficient evidence that the defendant committed the independent act; and (3) that there is sufficient similarity between the independent act and the charged offense to demonstrate that the independent act is logically relevant to a material issue in dispute in the trial. See Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991).” Mitchell v. State, 265 Ga. 71, 72 (2) (453 SE2d 731) (1995).

With respect to the first requirement, the trial court determined that evidence of the independent crimes was sufficiently similar to show a common modus operandi, a “legitimate purpose for proof of the independent crimes ...” and that the State’s intent was not to impeach Staten’s character. Slater v. State, 209 Ga. App. 723, 725 (2) (434 SE2d 547) (1993).

We are likewise satisfied that the State offered sufficient proof that Staten was a party to the independent crimes, despite the fact that the getaway driver was not identified at either incident. Staten was pulled over in his wife’s car on January 26 and admitted he was driving the car at the Thriftown robbery on January 27. The car’s tag number was given by witnesses at both the Starvin Marvin robbery on January 26 and the Mountain Farms robbery on January 30. “Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it. [Cit.]” Martin v. State, 198 Ga. App. 488, 489 (402 SE2d 95) (1991). Nor, as Staten argues, does the fact that four days elapsed between the time Staten was pulled over by police and the Mountain Farms robbery render the prior crimes inadmissible. See Leonard v. State, 197 Ga. App. 221 (2) (398 SE2d 250) (1990).

Finally, given the evidence discussed above regarding the nature and modus operandi of the crimes, there was sufficient similarity between the similar transactions and the Thriftown robbery such that proof of the former tended to prove the latter. Williams, supra. Thus, the trial court did not err in admitting evidence of the other crimes.

2. Staten contends the court erred in denying his motion for mistrial when, after being alone with Staten in the courtroom during a break, one of the State’s witnesses changed his initial testimony that he did not see the perpetrator of an attempted robbery in the courtroom. Staten argues that because he was the only African-American man in the courtroom during the break, the subsequent identification was impermissibly suggestive. We disagree.

The witness explained that when he first stated he did not see the suspect in the courtroom, it was because he was expecting to see an individual in chains and a prison uniform as is the custom in his native country of Ethiopia; instead, he saw only, people in street clothes. The witness further testified that he was “shocked” when he ultimately recognized Staten because Staten was wearing a suit and tie. The witness also testified that when first asked whether he saw the perpetrator, he was looking directly at the prosecutor rather than around the room. During the break, however, he had a chance to look directly at Staten and recognized him as the perpetrator. An “in-court identification is not inadmissible unless, under the totality of the circumstances, there is a substantial likelihood of irreparable misidentification.” (Citation omitted.) Perkins v. State, 216 Ga. App. 118, 119 (1) (453 SE2d 135) (1995).

In this case the witness testified that he was absolutely certain Staten was the man who attacked him; that he had a clear view of the perpetrator at the time of the attempted robbery; and that he observed the man face-to-face. In addition, the witness testified that he identified Staten in a pre-trial photographic lineup. The court then permitted Staten’s attorney to cross-examine the witness regarding the circumstances of his in-court identification and fully charged the jury regarding identification and factors the jury should consider in assessing the reliability of an identification. Under the totality of these circumstances, we are satisfied that the identification procedure was not so impermissibly suggestive that it gave rise to a very substantial likelihood of misidentification. Hamilton v. State, 210 Ga. App. 19 (1) (435 SE2d 61) (1993). (On the morning of trial, a police officer showed the witness a picture of the defendant prior to the witness’s in-court identification.)

3. Staten contends the court’s admission of the written statement he gave following his arrest in which he stated, “I have been doing drugs for 14 days,” improperly placed his character in evidence. Staten testified that at the time of his arrest on February 1, he had been on a two-week long crack cocaine binge during which he smoked the drug twenty-four hours a day. The detective to whom Staten gave an oral statement testified that Staten confessed he and his co-defendant picked the Thriftown because it “would be an easy hit” and that they “got some money out of it and bought some cocaine.”

Decided November 28, 1995

Reconsideration denied December 19, 1995

Lauris J. Geheren, for appellant.

Anthony Staten, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Evidence relevant to motive in a case is not rendered inadmissible “simply because it incidentally puts a defendant’s character . . . into evidence.” (Citations and punctuation omitted.) Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992). In this case, the statement had independent relevance to establish that Staten had a motive — obtaining money to continue the crack cocaine binge — for participating in the robberies. Staten’s oral confession that they used the money from Thriftown to buy cocaine was thus corroborative. As such, the written statement was admissible to show motive.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A1803.
    TONCEE, INC. v. THOMAS.
    (466 SE2d 27)
   Beasley, Chief Judge.

Toncee, Inc. appeals a jury verdict and judgment in favor of Thomas for breach of employment contract; it awarded lost wages, vacation pay, and attorney fees.

Thomas was employed by Mead Corporation when he took a position with Toncee. Thomas and Toncee executed a document dated May 19, 1989, addressed to Thomas from Toncee and prepared by Toncee’s attorneys entitled “Outline of Terms of Employment Agreement and Stock Option,” which set forth the terms of Thomas’ employment by Toncee, including an annual salary of $30,000, a three-year term of employment, his responsibilities as supervisor batchmaker, the vacation policy, insurance coverage, and stock options. The document also provided, “If the terms of this letter of intent are acceptable to you, we will instruct our attorneys to prepare a formal employment agreement and stock option agreement which will include these terms and conditions and such other terms and conditions which are typical in these types of arrangements.” Finally, the document stated, “If the terms of this letter of intent are acceptable to you, please sign the acknowledgement below and return one copy of this letter to us.”

During the entire period Thomas was employed by Toncee, he also continued to work full-time at Mead, although the parties dispute whether Thomas was required to resign from his position at Mead as a condition precedent to his being hired by Toncee. Toncee terminated Thomas in June 1991, almost a year prior to the expiration of the term in the document, and the parties dispute whether the termination was for cause. Thomas sued Toncee for breach of employment contract.

1. Toncee cites as error the trial court’s denial of its motion for summary judgment. Because the record reveals no legal basis to conclude that the verdict was not supported by the evidence, any error arising from the denial of summary judgment is rendered harmless as well as moot. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61) (1978); First Financial Ins. Co. v. Mathis, 214 Ga. App. 537, 538 (448 SE2d 87) (1994).

2. Toncee disputes the trial court’s denial of its motion for directed verdict on the ground that Thomas did not present evidence of a written employment contract that would satisfy the statute of frauds. Directed verdict is authorized only “if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a).

The Statute of Frauds requires that an agreement not to be performed within a year of its making must be in writing and signed by the party to be charged with the obligation. OCGA § 13-5-30 (5). American Standard v. Jessee, 150 Ga. App. 663, 664 (1) (258 SE2d 240) (1979). “ ‘The writing or memorandum . . . must be complete in itself, with nothing left in parol. [Cit.] It must show all the terms of the contract, the parties, and their assent thereto, in addition to showing the fact that there was a contract between the parties. [Cits.]’ [Cit.]” Id. “The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon. [Cit.]” Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438 (1) (292 SE2d 84) (1982). The document in this instance meets these requirements and includes Thomas’ annual salary, his responsibilities, the three-year term of employment, the company vacation policy, and the insurance offered.

Toncee argues that because reference is made within the body to it being a “letter of intent,” the document itself evidences that the parties did not intend for it to constitute an employment agreement but merely a proposal to enter into an agreement. The document’s designation as a “letter of intent” is not dispositive. See, e.g., Cahoon v. Kubatzky, 138 Ga. App. 393 (226 SE2d 467) (1976). Neither is the language in the outline stating, “If the terms of this letter of intent are acceptable to you, [Toncee] will instruct [its] attorneys to prepare a formal employment agreement and stock option agreement which will include these terms and conditions and other such terms and conditions as are typical in these types of arrangements.” The jury was authorized to weigh the evidence to determine that this language was superfluous, and that the language directing Thomas to sign and return a copy if acceptable was further evidence that the parties intended this to be their agreement. See OCGA § 13-2-1.

In addition, the actions of the parties demonstrated they intended to be bound by the terms of the outline. From May 1989 through June 1991, for over two years, Toncee employed Thomas in accordance with its terms and conditions. “The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208) (1962).

Toncee contends that essential portions of the contract remained to be negotiated, specifically, the stock option provision, and thus the requirements of the Statute of Frauds were not met. It cites Demer v. Capital City Cable, 190 Ga. App. 40 (378 SE2d 162) (1989), but the court in that case found specifically that the equity participation plan at issue, worth over one million dollars to the plaintiff, was an important inducement to his accepting employment, that the terms in the letter of intent were ambiguous, and that further discussion was necessary to resolve open issues. Id. at 42-43.

Conversely, the stock option provision in this instance was not an essential term, as evidenced by the parties’ conduct in performing every other term. Thomas makes no claim based on it. Moreover, by its express terms, the outline provided that the stock option agreement was to be separately drafted, making it severable from the terms of the employment contract itself. OCGA § 13-1-8. Cahoon, supra at 396. “[I]n cases involving the issue of severability, ‘ “ ‘(w)here an instrument in writing, purporting to be a bilateral contract, contains mutual promises, which without more and when taken independently of certain subsidiary provisions in the instrument would render the instrument valid as a contract, such subsidiary provisions will not, unless their terms imperatively demand it, be given a construction that will nullify and completely destroy the entire obligations of either party under the instrument and thus render the instrument lacking in mutuality and void.’ [Cits.]” ’ ” National Consultants v. Burt, 186 Ga. App. 27, 34 (3) (366 SE2d 344) (1988). The stock option provision was subsidiary and did not nullify the obligations of Toncee under the agreement.

Toncee also argues that the sparsity of the non-competition provision and the references to “other standard terms and conditions” to be included in the “formal agreement” further evidenced the parties’ understanding that the outline was intended merely to be a contract proposal. The non-compete provision stated, “For a period of two years after your employment, you will not solicit the business of any existing clients of the company. This will not prohibit you from working in a competitive business; you simply will be prohibited from ‘taking’ any of Toncee’s existing clients.” The trial court ruled, properly, that the non-compete provisions were sufficiently clear and unambiguous to “satisf[y] the minimum requirements” as a matter of law. Race, Inc. v. Wade Leasing, 201 Ga. App. 340, 341 (1) (411 SE2d 56) (1991). Furthermore, it is plain from the context that the “other terms” provision refers to nonessential boilerplate that would rarely be discussed, much less negotiated, between the parties to such an employment agreement.

It is unnecessary that a contract state “ ‘definitely and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves.’ [Cit.]” Jack V. Heard Contractors v. A. L. Adams Constr. Co., 155 Ga. App. 409, 412-413 (271 SE2d 222) (1980). A jury could find that all essential terms and conditions that the parties intended to constitute their employment agreement were present in this outline, precluding a directed verdict.

3. Toncee challenges the trial court’s denial of its motion for directed verdict on the issue of attorney fees and its charge to the jury that attorney fees could be awarded, on the ground that there was a bona fide controversy which prevented Thomas from being entitled to such.

OCGA § 13-6-11 provides, “The expenses of litigation generally shall not be allowed as a part of the damages [for breach of contract]; but . . . where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” This “ ‘is a question for the jury and an award will be upheld if any evidence is presented to support the award. (Cit.)’ [Cit.]” Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (3) (426 SE2d 376) (1992). A recovery for stubborn litigiousness or for causing the plaintiff unnecessary trouble and expense “is authorized where the evidence reveals no bona fide controversy or dispute with regard to the defendant’s liability. [Cits.] Whether or not a bona fide controversy exists is normally for the jury to decide. [Cits.]” Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 29 (4) (338 SE2d 496) (1985).

There was ample evidence to support the award. Thomas was hired and compensated for over two years of satisfactory service in accordance with the terms of the agreement, which Toncee insists does not exist. In April 1991, Toncee reduced Thomas’ pay in violation of the agreement. It also withheld over a thousand dollars of vested vacation pay, despite admitting that this amount was due and owing to Thomas. Toncee relies on Stone v. King, 196 Ga. App. 251 (396 SE2d 45) (1990), for the proposition that a plaintiff is required to comply with the provisions of OCGA § 9-15-14 to receive attorney fees once suit is filed, and since Thomas did not comply with its procedural requirements, he would only be entitled to attorney fees for conduct up and until suit was filed. This misconstrues Stone, which held that attorney fees could be awarded pursuant to OCGA § 9-15-14, and not OCGA § 13-6-11, for enforcement of a settlement agreement entered into after suit was instituted. Id. at 252-253. Stone made plain that OCGA § 9-15-14 covers conduct occurring during litigation, whereas OCGA § 13-6-11 applies to conduct “ ‘aris(ing) from the transaction underlying the cause of action [which is] in litigation.’ ” (Emphasis supplied.) Id. at 253. Thomas sought and proved the latter.

4. The court charged the jury, “Where in a contract the parties agree to early termination of the contract by either party for good cause and the contract does not define good cause, the party terminating the contract shall be judge of what constitutes good cause.” Toncee argues this charge means it was entitled to terminate the contract anytime it determined it had good cause to do so, so that the verdict awarding lost wages was contrary to the law and evidence.

As with any contract, this contract imposed upon each party a duty of good faith and fair dealing in the performance and completion of their respective duties and obligations. Building Materials Wholesale v. Reeves, 209 Ga. App. 361, 363 (433 SE2d 346) (1993). See also OCGA § 13-4-20. It was thus Toncee’s duty to employ good faith to determine what constituted “good cause” for termination. Ample testimony allowed the jury to determine that Thomas did not defectively or deficiently perform his employment duties or obligations, so as to be entitled to lost wages for the remaining period of the term. As to contrary evidence, it is the duty of the jury to determine the credibility of witnesses and resolve conflicting testimony. Davis v. State, 203 Ga. App. 227, 228 (416 SE2d 771) (1992).

5. The trial court instructed the jury, “It is not necessary that a contract state definitely and specifically all the facts and details to which the parties make an agreement, but as to such matters it will be sufficient and definite and certain if it contains matters which will enable you, the jury, under proper rules of contract construction to ascertain the terms and conditions on which the parties intended to bind themselves.”

Decided December 4, 1995

Reconsideration denied December 19, 1995

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., William W. Horlock, Jr., for appellant.

Adam R. Gaslowitz, Jeffrey L. 0. Evans, for appellee.

Toncee’s assertion that the court erred in so charging is without merit. While it is true under OCGA § 13-2-1 that construction of the terms of a contract is a question of law for the court, the issue in this case did not involve construction of a particular contract term. The parties’ primary disagreement was whether a written employment agreement between them existed at all. The conflicting evidence presented an issue of fact for jury determination, and the court properly instructed the jury regarding applicable rules of contract construction. See OCGA § 13-2-1. Jem Patents v. Frost, 156 Ga. App. 311, 312 (274 SE2d 707) (1980).

6. The court charged the jury, “A waiver of a condition precedent can be implied by the conduct of the parties, and a pattern or course of conduct may evidence a waiver of any such contract requirement.” Toncee’s contention, that this charge was error in that this case presented no issue relating to the waiver of any contract condition, ignores the evidence. A fundamental dispute between the parties was whether Thomas was required to resign from Mead as a condition precedent to Thomas entering into employment with Toncee. The existence and waiver of such a condition were jury questions, and the court properly instructed the jury in this regard. See, e.g., Royal Atlanta Dev. Corp. v. M. D. Hodges Enterprises, 141 Ga. App. 838, 839 (1) (234 SE2d 676) (1977).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1822.
    BAGLEY v. CSX TRANSPORTATION, INC.
    (465 SE2d 706)
   Ruffin, Judge.

Dewey Edward Bagley sued CSX Transportation, Inc. and numerous manufacturers of products containing asbestos for injuries resulting from his exposure to asbestos while working for CSX and its predecessor railroads. Bagley alleged that CSX failed to warn him of the hazard posed by asbestos or protect him from exposure to it. Prior to trial, all defendants except CSX had either settled, been dismissed or granted summary judgment. At the close of Bagley’s evidence, CSX moved for a directed verdict on the ground that Bagley’s evidence did not show that the railroad had knowledge of the danger exposure to asbestos posed for its employees. The trial court granted the motion, holding that Bagley had presented insufficient evidence to show the railroad was negligent. For reasons which follow, we affirm.

1. “To prevail on a FELA claim, a plaintiff must ‘prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.’ [Cit.]” Adams v. CSX Transp., 899 F2d 536, 539 (6th Cir. 1990). A “[reasonable foreseeability of harm is an essential ingredient of [FELA] negligence.” (Citations and punctuation omitted.) Green v. River Terminal R. Co., 763 F2d 805, 808 (6th Cir. 1985). Therefore, Bagley was required to prove that CSX knew or should have known that his exposure to asbestos dust placed him at a risk for contracting asbestosis, yet failed to inform and protect him. See Gallose v. Long Island R. Co., 878 F2d 80 (2nd Cir. 1989); Wooden v. Missouri Pacific R. Co., 862 F2d 560 (5th Cir. 1989).

Applying these principles to the evidence at trial, the transcript shows that Bagley introduced the minutes from annual meetings in the 1930’s and 1950’s of the Medical and Surgical Section of the American Railway Association, a railroad trade association. The minutes showed that physician representatives from either one or both of CSX’s corporate predecessors, Atlantic Coast Line Railroad (“Atlantic”) and Seaboard Air Line Railway (“Seaboard”) attended the meetings.

The minutes from the 1933 meeting state that the physicians discussed the following regarding asbestosis: “[P]ulmonary disorders [are] especially prevalent in employees engaged in dusty occupations. These conditions at present are being brought more and more to the attention of the industrial surgeon for systematic studies. Pneumoconiosis ... is a condition that may be caused by any kind of dust entering the lung; but we as railroad surgeons are undoubtedly more interested in silicosis and asbestosis than in the other types. . . . Asbestosis is not a common condition but it causes extensive pulmonary fibrosis.” The minutes also discussed ways to prevent pneumoconiosis.

In granting CSX’s motion for directed verdict, the trial court found that Bagley had presented no evidence that the railroad’s physician representatives had discussed the topics addressed at these meetings with the railroad. The court further found that the minutes standing alone were insufficient to put CSX on notice of the specific dangers of asbestos and how to prevent injury to the railroad’s employees; thus, there was insufficient evidence for a jury to infer CSX was negligent.

Federal law controls whether the plaintiffs evidence is insufficient in a FELA case to present to the jury the issue of the defendant’s negligence, thus demanding a verdict for the defendant. See Seaboard Coast Line R. Co. v. Daugherty, 118 Ga. App. 518 (1) (164 SE2d 269) (1968). “On motions for directed verdict . . . the Court should consider all of the evidence ... in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Lamb by Shepard v. Sears &c. Co., 1 F3d 1184, 1187 (11th Cir. 1993). In a FELA case, “a directed verdict is possible only when there is a complete absence of probative facts supporting the nonmovant’s position.” (Citation and punctuation omitted; emphasis in original.) Allen v. Seacoast Products, 623 F2d 355, 360 (5th Cir. 1980) (Jones Act case applying standard under FELA). Thus, the question before us is whether there was a complete absence of probative facts supporting Bagley’s claim against CSX.

As a preliminary matter, we agree that Bagley introduced no evidence that the railroad’s surgeons reported back to the railroad on the subject of asbestos. However, because a jury could reasonably infer that this was the case, we find that the discussion of the hazards of asbestos and ways to prevent dust-induced lung disease evidenced in the minutes provide “some, if minimal, probative facts in the record to show knowledge on the part of [CSX’s predecessors].” Wooden, supra at 564.

However, there is absolutely no evidence of record that CSX had actual or constructive knowledge of the topics discussed at meetings which took place before its formation. The evidence at trial showed only that Bagley began working for Seaboard in 1968 and that Seaboard and Atlantic later merged and eventually became CSX. Absent some evidence that CSX had knowledge of topics discussed at the meetings or that any knowledge acquired by Seaboard and Atlantic can, as a matter of law, be imputed to CSX, we find no probative facts to support the claim that CSX knew of the danger faced by employees exposed to asbestos or how to prevent the injury. Accordingly, the trial court did not err in granting CSX’s motion.

2. Bagley contends the court erred in granting CSX’s motion in limine to limit the introduction of medical and scientific literature from around the world concerning the hazards of asbestos to only that literature about which the railroad knew. The court granted the motion, ruling that no evidence of the medical and scientific literature regarding asbestos exposure was to be presented until Bagley provided “a proper foundation to show that the information set forth in the studies was actually known to CSX.” Bagley contends the ruling excluded relevant evidence.

This enumeration is without merit. To begin with, the trial court did no more than require that a proper foundation be laid before Bagley attempted to have any of the articles admitted into evidence. “The court’s ruling excluding the evidence [until such showing was made] was expressly not final. In effect, the court exercised the discretion it has to reserve ruling on the admissibility of evidence until it is offered at trial. [Cit.]” Dubberly v. P. F. Moon & Co., 184 Ga. App. 221, 222 (1) (361 SE2d 223) (1987). Furthermore, Bagley made no proffer as to what the desired evidence would show. Thus, there is nothing for us to review. Id. As we examine the record for error, we must be ever cognizant of that special relationship error has with harm. If there is none, the trial court must be affirmed.

Decided November 27, 1995

Reconsideration denied December 19, 1995

Lane & Gossett, C. Darrell Gossett, for appellant.

Jordan & O’Donnell, Randall A. Jordan, Christopher J. O’Donnell, Steven P. Bristol, for appellee.

Judgment affirmed.

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

On Motion for Reconsideration.

On motion for reconsideration, Bagley argues that a successor corporation assumes the liabilities of its corporate predecessor when the transaction resulting in the successor corporation was a merger. See Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985). But Bagley presented no evidence that CSX was the result of a merger rather than an outright sale. The only testimony in this regard was that in the late 1960’s Seaboard and Atlantic Railroads merged and “eventually came to be what is known today as CSX.” Moreover, in its answer to Bagley’s complaint, CSX specifically denied it was a successor in liability to Seaboard.

Motion for reconsideration denied.


author: Johnson, Judge.

text:
    A95A2471.
    JOHNSON v. THE STATE.
    (466 SE2d 63)
   Johnson, Judge.

John Johnson was indicted for involuntary manslaughter in that he pointed and discharged a loaded handgun at the head of Leslie Towns. Johnson pled not guilty to the indictment. The case was tried before a jury, which found Johnson guilty of misdemeanor involuntary manslaughter. The court sentenced Johnson to 12 months of probation, with the conditions that he reside for 120 days at a boot camp and that he stay in the county jail until reporting to the camp. Johnson appeals.

1. Johnson argues the court erred in admitting similar transaction evidence because the state did not give him notice ten days before trial of its intent to introduce such evidence and the prior transaction is not sufficiently similar to the crime charged in this case. These arguments are without merit.

(a) The state could not have given Johnson any pre-trial notice of its intent to introduce evidence of the similar transaction because it is undisputed that the state did not discover the similar transaction until after the trial had started. Upon its discovery, the state immediately informed Johnson and the court of its desire to introduce evidence of the similar transaction. The court then gave Johnson an opportunity to interview the similar transaction witnesses and held a hearing to determine the admissibility of the prior transaction. “Under such circumstances we find no error in overruling appellant’s objection to the presentation of such evidence. Common sense dictates that the State cannot give notice of its intention to introduce evidence ten days prior to trial when it is not aware of the existence of such evidence at that time. [Uniform Superior Court] Rule 31.1 authorizes the trial judge to shorten the time required for giving such notice, and we find no abuse of discretion here.” (Citations and punctuation omitted.) Gilstrap v. State, 199 Ga. App. 223, 226-227 (6) (404 SE2d 629) (1991), rev’d on other grounds, 261 Ga. 798 (410 SE2d 423) (1991).

Moreover, the state is not required to provide notice of its intent to introduce similar transaction evidence when the defendant places his character in evidence at trial. Knight v. State, 207 Ga. App. 846, 848 (3) (429 SE2d 326) (1993); USCR 31.3 (D). Here, contrary to Johnson’s argument, he placed his own character in evidence when he elicited testimony from a state witness on cross-examination that Johnson is a responsible and good kid who, to the witness’ knowledge, had never been in any trouble. See Franklin v. State, 251 Ga. 77, 80-81 (2) (303 SE2d 22) (1983). Because Johnson placed his own character in evidence, the state had no obligation to give notice of its intent to present similar transaction evidence. See Sidwell v. State, 185 Ga. App. 138, 139 (1) (363 SE2d 603) (1987).

(b) Johnson’s further argument that the prior and current offenses are not similar is specious. The transcript reveals that the night before the killing in this case, Johnson was in the backseat of Brad Horne’s motor vehicle when Tara Dietrich got into the front passenger seat. Johnson placed the barrel of a loaded handgun against the back of Dietrich’s head, and when she turned around, he kept the gun pointed at her face. As for the current offense, the state presented evidence that Horne and Towns were visiting Johnson at his house when Johnson pointed a loaded handgun at Towns’ head and shot her. Under these facts, the court did not err in ruling that the prior incident is sufficiently like the current crime to be admissible as similar transaction evidence. See Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994).

2. Johnson complains that the court erred in refusing to dismiss a prospective juror for cause based on the juror’s voir dire testimony that he knows a police officer who was listed as a possible state witness, but who did not actually testify at trial, and that he believes the officer to be credible. “The trial court has wide discretion in deciding whether a juror should be excused for cause. The fact that a juror has formed an opinion about the credibility of a witness does not mandate that he be excused for cause.” (Citations and punctuation omitted.) Watts v. State, 200 Ga. App. 54, 55 (2) (406 SE2d 562) (1991). “In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.” (Citations and punctuation omitted.) Majors v. State, 203 Ga. App. 139, 141 (3) (416 SE2d 156) (1992). “A juror is not disqualified if he can lay aside whatever opinions or impressions he may have had and decide the case based upon the evidence presented in court.” (Citation and punctuation omitted.) Ward v. State, 193 Ga. App. 137, 140 (8) (387 SE2d 150) (1989). Here, the juror testified that he could lay aside his opinion of the officer’s credibility and decide this case based on the evidence and the court’s charge. Given this testimony, the court did not abuse its discretion in refusing to strike the juror for cause. See Foster v. State, 248 Ga. 409, 410-411 (3) (283 SE2d 873) (1981); Adams v. State, 180 Ga. App. 546, 547 (2) (349 SE2d 789) (1986).

3. Johnson claims the probation conditions that he attend boot camp and that he remain in the county jail until going to the camp are illegal. We disagree with Johnson’s argument that completing a boot camp is an authorized condition of probation only for a person convicted of a felony, not for one convicted of a misdemeanor. “The trial judge is expressly authorized by OCGA § 17-10-1 (a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citations and punctuation omitted; emphasis in original.) Tuttle v. State, 215 Ga. App. 396, 397 (2) (450 SE2d 863) (1994).

There is no express authority that completion of boot camp is not a reasonable condition of probation for a person convicted of a misdemeanor. It is true that OCGA § 42-8-35.1 (a) provides that a court may order completion of boot camp as a condition for probationers sentenced for felony offenses. But that statute does not expressly prohibit courts from ordering boot camp as an appropriate condition of misdemeanor probation sentences. Because there is no express authority to the contrary, the court did not err in ordering Johnson to complete boot camp as a condition of his misdemeanor probation. See generally Penaherrera v. State, 211 Ga. App. 162, 164 (1) (438 SE2d 661) (1993).

Decided December 6, 1995

Reconsideration denied December 19, 1995

L. Scott McLarty, Robert J. Motyka, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

The court did, however, err in ordering that as a condition of probation Johnson be confined to the jail until reporting to the boot camp. “[T]he imposition of any term of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation ... .is unauthorized by law.” (Emphasis in original.) Pitts v. State, 206 Ga. App. 635, 639 (3) (426 SE2d 257) (1992). Thus, that erroneous portion of the court’s sentence must be vacated and the case remanded with direction that Johnson be resentenced in accordance with the law. Id.

Judgment affirmed and case remanded with direction.

Birdsong, P. J., and Ruffin, J., concur. Smith, J., disqualified.


author: Smith, Judge.

text:
    A94A1321.
    GREENE COUNTY HOSPITAL AUTHORITY et al. v. WALDROUP et al.
    (464 SE2d 407)
   Smith, Judge.

In Waldroup v. Greene County Hosp. Auth., 265 Ga. 864 (463 SE2d 5) (1995), the decision of this Court in Greene County Hosp. Auth. v. Waldroup, 215 Ga. App. 344 (451 SE2d 62) (1994), was affirmed in part and reversed in part. Accordingly, our original judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and reversed in part.

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

Decided December 19, 1995.

Lokey & Smith, Malcolm P. Smith, for appellants.

Kilpatrick & Cody, Alan R. Perry, Jr., Matthew H. Patton, Blasingame, Burch, Garrard & Bryant, Gary G. Blasingame, Nelson & Hill, John F. Beasley, Jr., H. Samuel Atkins, Jr., for appellees.


text:
    A95A2433.
    WRIGHT v. TRUST COMPANY BANK.
    (466 SE2d 74)
   Beasley, Chief Judge.

Pursuant to the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130 et seq., Trust Company Bank filed a properly authenticated foreign judgment in the State Court of DeKalb County in 1995. The judgment was obtained against Wright in an Alabama court in 1987.

In response to the notice of the filing of the judgment, Wright filed a pleading through which he sought dismissal of the notice. He argues that the bank’s action is barred by the five-year statute of limitation in OCGA § 9-3-20, in that the judgment was filed in Georgia more than five years after it was obtained in Alabama.

The trial court entered a final judgment permitting the filing of the foreign judgment, concluding as a matter of law that OCGA § 9-3-20 does not bar the filing and enforcement of a foreign judgment under the uniform law.

OCGA § 9-3-20 requires all actions on foreign judgments to be brought within five years after such judgments have been obtained. Eickhoff v. Eickhoff, 263 Ga. 498, 502 (4) (435 SE2d 914) (1993). However, the uniform law is expressly made alternative to the right of a judgment creditor to bring an action to enforce a foreign judgment. See OCGA § 9-12-136. The uniform law provides a summary procedure for endowing a filed foreign judgment with the same effect as a judgment of the court in which it is filed. Hammette v. Eickemeyer, 203 Ga. App. 243 (416 SE2d 824) (1992). It is not a new action but merely picks up where it was left off in the state where rendered. Any litigation ensuing is limited to that which is afforded any other Georgia judgment. Eastlawn Corp. v. Bankers Equipment Leasing Co., 211 Ga. App. 551, 555 (439 SE2d 753) (1993) (Beasley, J., dissenting).

In these regards, OCGA § 9-12-132 provides, in pertinent part: “A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.” OCGA § 9-12-134 (b) provides for a stay of enforcement of a foreign judgment “[i]f the judgment debtor shows the court any ground on which enforcement of a judgment of the court of this state would be stayed.”

Decided December 19, 1995.

Charlotte Y. Kelly, for appellant.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.

Thus, OCGA § 9-3-20 is not applicable to filings under the uniform law. Rather, a foreign judgment so filed stands in the same shoes as a judgment of the court in which it is filed.

Moreover, under the uniform law, Wright was not authorized to move for a dismissal of the notice of filing of this properly authenticated foreign judgment. The remedy allowed a judgment debtor under the statute is a stay of enforcement. Hammette, supra at 244.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A2487.
    HOOKER v. THE STATE.
    (466 SE2d 270)
   McMurray, Presiding Judge.

Defendant Hooker appeals his conviction of the offense of cruelty to children. Held:

1. Defendant challenges the sufficiency of the evidence to authorize his conviction. The evidence stated in the light most favorable to upholding the jury’s verdict shows that defendant had been dating the mother of the 14-month-old victim for several months when the incident at issue occurred. After defendant met and began dating the victim’s mother, a dramatic change in the victim’s behavior had been noted, the child became frightened of all men except his natural father. When defendant picked the victim up from his babysitter’s house, the victim would cry and not want to leave. Defendant expressed his jealousy of the victim and was seen roughly handling the victim. The crime of which defendant is convicted occurred while defendant was changing the victim’s diaper. Although defendant rarely changed the victim’s diaper on this particular occasion he insisted on doing so. While defendant was changing the diaper, the victim’s mother heard the child scream “like something hurt him right then” and went to investigate. The victim was diapered when she arrived at the bedroom. When asked what he had done, defendant replied “nothing.” After some argument with the victim’s mother, defendant left as the victim’s grandparents arrived. In the following hours, the victim clung to his mother, and would not eat or interact with his grandmother. After a few hours, at the next diaper changing, the vietim was found to have a one-half centimeter bruise on the head of his penis. The bruise was a bad one and was bleeding. The victim was taken to a hospital for examination. The examining physician opined that the injury was caused by a discrete blunt force, a pinching action, and that it was unlikely a child of the victim’s age could muster sufficient force to create the bruise. In his statement to police, defendant stated the victim’s penis was already injured when he changed the diaper. But at trial defendant testified that the victim’s penis was uninjured when he changed the diaper and that the child had “hollered out” in anger when he had pulled the victim’s hand away from his penis. Defendant attempted to persuade the victim’s mother not to take the victim to the hospital.

Decided December 19, 1995.

H. Darrell Greene, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Defendant contends that the evidence, which was circumstantial, failed to exclude every reasonable hypothesis other than his guilt. This is generally a question for a jury and we conclude the jury rationally could have found that the evidence at trial excluded every reasonable hypothesis except that of the defendant’s guilt. Spencer v. State, 217 Ga. App. 708, 709 (458 SE2d 886). There was ample evidence from which a rational trier of fact could find that defendant was guilty beyond a reasonable doubt of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The remaining enumeration of error complains of the State recalling, for the purpose of rebuttal, two witnesses who had remained in the courtroom after their testimony and heard all of the defense evidence. But “[i]t is not error to allow a witness who has not been sequestered to testify in rebuttal. [Cits.]” Hightower v. State, 259 Ga. 770, 774 (20) (386 SE2d 509). Nor is there merit in defendant’s contention that the testimony given by witness Greene was not proper rebuttal evidence.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2538.
    BELL v. THE STATE.
    (466 SE2d 68)
   McMurray, Presiding Judge.

Defendant Bell appeals his conviction of possession with intent to distribute cocaine and possession with intent to distribute cocaine in a publicly owned housing project (OCGA § 16-13-32.5). Held".

1. Following his conviction, defendant received a mandatory sentence of life imprisonment pursuant to OCGA § 16-13-30 (d). Prior to and during trial, defendant rejected a succession of plea bargaining offers from the State which would have permitted him to avoid the mandatory life sentence. Via his first enumeration of error, defendant now maintains that it was manifestly in his best interest to have accepted one of those offers and that he did not only because of errors by the trial court in refusing to afford him adequate opportunity to confer with counsel and by the trial court actually participating in the plea negotiations.

Pretermitting the fact that there are no objections on the record to preserve these matters for appellate review, we note that the record shows that while two defense attorneys and the trial court voiced advice that defendant accept the plea bargaining agreement, defendant was not at all receptive to doing so, maintained his innocence, and steadfastly announced his desire for trial of the case. We bypass the question of whether the trial court’s conduct amounted to a violation of the prohibition on judicial participation in plea negotiations (Uniform Superior Court Rule 33.5 and Skomer v. State, 183 Ga. App. 308 (358 SE2d 886)) and hold that any such error could not be viewed as harmful under the circumstances of the case sub judice. Furthermore, our reading of the transcript fails to reveal any failure by the trial court to afford defendant a reasonable opportunity to confer with counsel concerning the plea bargaining offers.

2. Next, defendant enumerates as error the failure of the trial court to give, without request, instructions to the jury that similar transactions evidence introduced by the State was admitted for a limited purpose and to describe that purpose. When evidence is admitted for a limited purpose it is not error for the trial court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a proper request to so instruct the jury. Moore v. State, 202 Ga. App. 476, 479 (3), 480 (414 SE2d 705); Thomas v. State, 199 Ga. App. 49, 50 (4) (404 SE2d 315). Since he made no such request to charge, defendant was not entitled to a limiting instruction upon admission of the similar transaction evidence or in the general charge. Evans v. State, 201 Ga. App. 20, 28 (8) (410 SE2d 146). We further note that unlike the defendant in Moore v. State, 202 Ga. App. 476, 479 (3), 480, supra, the defendant in the case sub judice apparently had ample opportunity to submit a written request to charge, so is not similarly excused from application of the general rule applicable to this issue.

3. Defendant’s third enumeration of error complains of remarks made by the prosecutor during closing argument to which no objection was made. “When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” Tharpe v. State, 262 Ga. 110, 113 (16), 114 (416 SE2d 78). The alleged error here is that the prosecutor attempted to define the term reasonable doubt for the jury and thereby, according to defendant, presumed to instruct the jury concerning the law. We believe that it is highly unlikely that this altered the verdict in the case sub judice and therefore conclude that no relief is warranted.

Decided December 19, 1995

Cathy M. Alterman, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

4. Next, we find no error in the trial court’s curtailing defendant’s unresponsive if not unsolicited testimony on cross-examination. Nor did the trial court’s admonition to defendant, “just don’t volunteer” amount to a comment on the evidence.

5. The final enumeration of error contends that the trial judge erred by failing to conduct a requested and legislatively mandated presentence hearing. But the trial transcript shows that the required presentence hearing was in fact conducted a brief time following the return of the verdict in the case. Contrary to defendant’s argument the trial court was not required, under OCGA § 17-10-2 (a) to “recess the trial for the purpose of taking the sentence . . . under advisement.” Under the statute, at the conclusion of the evidence and arguments at the presentence hearing, the trial court may either impose sentence or take such a recess. Defense counsel requested a recess to permit research into certain issues of law related to the sentencing. But since these legal issues should have been apparent to defense counsel prior to trial, there was clearly no abuse of discretion in refusing the request for a recess. Furthermore, no harm to defendant due to the immediate imposition of sentence has been shown. See Scott v. State, 216 Ga. App. 692, 693 (3) (455 SE2d 609).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2617.
    CARPET TRANSPORT, INC. v. KENNETH POLEY INTERIORS, INC.
    (466 SE2d 70)
   Beasley, Chief Judge.

Kenneth Poley Interiors, Inc. is an interior design firm located in Florida and owned by Kenneth Poley. Carpet Transport, Inc. (CTI) is a motor common carrier. Poley Interiors employed CTI to transport three oriental rugs to Westley Interior Installations. Westley, located in Georgia, installs products sold by Poley Interiors and others. Westley, which was considering use of the rugs in one of its projects, determined that it could not use the rugs and returned them to Poley via CTI. On the return shipment, CTI delivered the rugs to Poley in such a wet condition that they were destroyed.

Poley sued CTI for negligence and breach of contract. It sought to recover $12,650 as to the total value of the rugs, prejudgment interest, attorney fees, and litigation expenses. The jury awarded $12,650 in damages, $3,394.42 in prejudgment interest, and $6,491.45 in costs of litigation. CTI appeals the judgment on the verdict and the order denying its motion for new trial.

Prior to shipping the rugs to Westley, Poley informed CTI that the rugs were being offered for sale for $12,650 and were to be insured for $15,000. The bill of lading for the return shipment from Westley to Poley stated that “[t]he agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $15,000” and it described the property as “in apparent good order, except as noted (contents and condition of contents of packages unknown).” The CTI driver signed the bill of lading without exception or notation of damages.

By a telephone call from the driver while en route to Florida, Poley was put on notice that a problem had arisen. When the driver delivered the rugs to Poley, the plastic wrapper in which they had been shipped was wet and full of mud. The rugs, which had weighed 128 pounds when the CTI driver accepted them from Westley, were three times heavier when he delivered the rugs to Poley. The driver insisted that Kenneth Poley personally accept delivery.

A Westley project manager testified that these rugs were stored in Westley’s warehouse, that no items stored there had sustained any water damage during the time in question, and that a Westley employee would have undertaken a visual inspection of the packaging when the rugs were shipped back to Poley to determine if there was any damage. A Westley warehouse manager at the time in question gave like testimony. He also testified that when the rugs were returned to Poley, he loaded them onto the CTI truck by hand and would have known if they were wet and heavy.

When Kenneth Poley accepted delivery, he noted on the invoice that the rugs were wet and that the extent of damage was not known. He put the rugs in the sun to dry, contacted a CTI terminal manager, and told him that the rugs were wet and coming apart. The manager came to inspect the rugs, acknowledged that they were “a real mess,” and told Poley not to do anything with them until CTI advised him what to do. Poley followed these instructions strictly, because his experience had been that a violation of such instructions would compromise the claim. After determining that the rugs had been insured, the president of CTI told Poley the claim would be handled. A CTI claims agent later sent Poley a claim form and indicated to him that the claim would be settled within 30 days after he completed the form. Poley later got a letter stating that the claim had been denied. He testified that the claims agent’s explanation was that “ ‘[w]e just flat denied it, and you’ll have to sue us. And we know that will take you four to five years to take us to court.’ ”

1. CTI contends that the court erred in failing to direct a verdict in its favor in that Poley failed to establish the first element of a prima facie case, i.e., that the rugs were delivered by Westley to CTI in good condition.

“A shipper establishes a prima facie case of the carrier’s negligence and liability under the Carmack Amendment [to the Interstate Commerce Act, 49 USC § 11707] by evincing proof by a preponderance of the evidence that the goods T) were delivered to the carrier in good condition, 2) arrived in damaged condition, and 3) resulted in the specified amount of damage.’ [Cit.]” Fine Foliage of Fla. v. Bowman Transp., 901 F2d 1034, 1037 (1) (11th Cir. 1990).

CTI’s contention is rejected for two reasons:

(a) “ ‘In the present case, the [rugs] arrived in [a plastic wrapper]. [It] had visible damage [i.e., was wet and muddy]. Obviously, if these conditions had existed at the point of shipment, they . . . would have been noted and exceptions made.” W. J. Rabon v. Red Ball Motor Freight, 292 S2d 332, 335 (La. App. 1974). Hence, the clean bill of lading was sufficient to prove prima facie that no such conditions existed when CTI received the shipment and to place upon CTI the burden of going forward with evidence to exonerate itself.

(b) Cases such as Fine Foliage, supra, and Fuente Cigar, Ltd. v. Roadway Express, 961 F2d 1558 (11th Cir. 1992), relied upon by CTI, are distinguishable. Unlike the present case, they involved the delivery of goods under seal, packaged in such a way as to prevent discovery by the carrier of the damage later claimed by the shipper. Under those circumstances, a clean bill of lading does not establish a prima facie case. “Instead, the shipper must ‘presentí ) additional evidence sufficient to establish by preponderance of all the evidence the condition of the goods upon delivery.’ [Cit.]” Fine Foliage, supra at 1038 (3). Such condition can be established by substantial and reliable circumstantial evidence alone. Fuente Cigar, supra at 1561 (3).

Poley submitted substantial and reliable circumstantial evidence of the good condition of the rugs upon delivery by Westley to CTI, in addition to the clean bill of lading. There was ample evidence to avoid the grant of CTI’s motion for directed verdict.

2. CTI contends that the court erred in submitting the issue of attorney fees to the jury.

CTI excepted to the court’s jury charge on attorney fees on the ground that the facts did not authorize the charge. In its motion for new trial and on appeal, CTI argues that the evidence was not sufficient either to authorize an award of attorney fees or to establish the reasonableness of the fees awarded.

(a) At trial, Poley submitted invoices from its attorney which represented the costs of litigation. These invoices described the legal services rendered by counsel, set forth the time spent on each task, stated the amount charged, and contained an itemized list of expenses incurred. They totalled the amount which the jury awarded.

“ ‘An attorney cannot recover for professional services without proof of their value.’ [Cit.] Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case. [Cits.]” First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981). However, it has never been held that such opinion testimony is an invariable requirement. In Hughes v. Great Southern Midway, 265 Ga. 94, 95-96 (1) (454 SE2d 130) (1995), the Court reversed an award of attorney fees because “there was no evidence of the number of hours spent on the case or the hourly fee charged, no testimony from other attorneys or other evidence ‘to show what constitutes a reasonable attorney fee in light of the litigation history of the case,’ [cit.]. . . .” (Emphasis supplied.)

Poley’s itemized invoices chronicled the litigation history and described in detail the basis for the charges. Since this evidence was not objected to or controverted by CTI, it authorized the jury to find that the fee charged was reasonable in this case.

(b) “Under OCGA § 13-6-11 expenses of litigation may be awarded if the plaintiff shows that the defendant acted in bad faith, or was stubbornly litigious, or put the plaintiff to unnecessary trouble or expense. ‘The plaintiff need not show that all three provisions of the statute are present, but only that one of the three conditions exists. (Cits.) . . .’ [Cit.]” Parking Co. of America v. Sucan, 195 Ga. App. 616, 618 (3) (394 SE2d 411) (1990). In Sucan, we sustained an award of attorney fees where a defendant with a “so-sue-me” attitude refused to pay a claim without any valid reason. There is evidence of the same here.

3. CTI contends that there is not sufficient evidence in the record to establish the value of the rugs.

The rugs were never viewed by an appraiser because someone stole them from Poley while they were lying outdoors, but Poley introduced photographs of two of the rugs before they had been damaged. A professional rug cleaner who had been used by Poley verified that the rugs in the photographs were Poley’s rugs and that they were handmade, authentic, oriental rugs. A professional appraiser who viewed the photographs testified likewise and valued one of the rugs at between $14,000 and $18,000 and the other rug at between $9,000 and $12,000.

CTI argues that the appraiser did not have an opportunity to form a correct opinion as to the value of the rugs because he never personally examined them to determine if they were genuine. The appraiser’s testimony, that he could tell from the photographs the rugs were genuine, was sufficient. Moreover, there was other evidence the rugs were genuine, and an expert may give an opinion based upon any state of facts supported by the evidence. In the Interest of A. S. M., 214 Ga. App. 668, 671 (1) (448 SE2d 703) (1994).

4. CTI contends that, as a matter of law, prejudgment interest is not available in this case, and that it was error to allow the jury to assess it.

“Allowance of interest in actions for unliquidated damages arising from breach of contract is governed by [OCGA § 13-6-13] which states: ‘In all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time (until) the recovery.’ [Cit.]” Norair Engineering Corp. v. Saint Joseph’s Hosp., 147 Ga. App. 595, 604 (6) (249 SE2d 642) (1978). “ ‘[T]he jury in their discretion may increase the immediate amount of damages found, by an allowance of interest.’ [Cits.]” Bennett v. Tucker & Pennington, 32 Ga. App. 288, 293 (123 SE 165) (1924).

Poley sought $12,650 as the value of the rugs. From the evidence, the jury found that this was the immediate amount of Poley’s monetary damages at the time of, and as a result of, CTI’s breach. Compare Malta Constr. Co. v. Henningson, Durham & Richardson, Inc., 716 FSupp. 1466 (N.D. Ga. 1989), aff’d 927 F2d 614 (11th Cir. 1991). The jury was thus authorized to allow interest in addition.

5. CTI contends that it was entitled to judgment, as a matter of law, on the issue of Poley’s failure to mitigate damages by having the rugs dried and cleaned by an expert in rug cleaning. Poley testified that he attempted to dry the rugs and that he did not have them cleaned because the instructions given to him by CTI precluded him from doing so. This enumeration is utterly devoid of merit.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided December 19, 1995.

Patton & Price, C. Ronald Patton, for appellant.

Raiford, Dixon & Thackston, Sheldon K. Fram, for appellee.


author: Pope, Presiding Judge.

text:
    A95A0261.
    FAIRCLOTH v. A. L. WILLIAMS & ASSOCIATES, INC. et al.
    (465 SE2d 722)
   Pope, Presiding Judge.

This is the third time this case has come before us on appeal from a grant of partial summary judgment. See Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764 (426 SE2d 601) (1992) (“Faircloth III”)', A. L. Williams & Assoc. v. Faircloth, 190 Ga. App. 872 (380 SE2d 471) (1989) (“Faircloth I”), affirmed in part and reversed in part, 259 Ga. 767 (386 SE2d 151) (“Faircloth IF’). Plaintiff Fair-cloth, a former employee of defendant A. L. Williams & Associates, Inc., alleges that defendant breached his employment agreement by wrongfully terminating him and withholding various commissions owed him. The opinions cited above set forth the facts of the case in detail; those facts will be repeated here only to the extent they are necessary to a discussion of the issues presented.

1. Plaintiff first argues that the trial court erred in granting summary judgment for defendant on his claim for an equitable accounting under OCGA § 23-2-70. An accounting under this Code section is not warranted if the accounts are not unusually complicated and an adequate remedy is available at law. See Insurance Center v. Hamilton, 218 Ga. 597 (1) (b) (129 SE2d 801) (1963). Although plaintiff asserts that the commission transactions involved here are unusually complex, his assertion is not supported by the record. Plaintiff has a breach of contract cause of action based on defendant’s failure to pay commissions, and with the availability of extensive discovery, this claim provides plaintiff with an adequate remedy at law. We also note that we transferred this case to the Supreme Court due to plaintiffs request for equitable relief, and the Supreme Court transferred it back to us. Cf. Universal Garage Co. v. Fowler, 184 Ga. 604 (192 SE 299) (1937) (suit for accounting transferred from Supreme Court to Court of Appeals because the transactions involved were not unusually complicated). Accordingly, the trial court did not err in granting summary judgment for defendant on plaintiff’s accounting claim.

2. Plaintiff also contends that the trial court should not have granted summary judgment on his conversion claim. The trial court had previously granted summary judgment on the conversion claim, however, and that summary judgment was affirmed by this Court in Faircloth III. Pointing to language in Faircloth III referring to the lack of an “allegation” that the converted funds were represented by a receipt or certificate, plaintiff suggests that the prior affirmance was based on a mere deficiency in pleading. Thus, he reasons, it should not be binding and he should be allowed to replead his conversion claim to include such an allegation. Under our system of modern pleading, however, neither a summary judgment nor a dismissal for failure to state a claim may be based on a mere deficiency in pleading. The only reasonable reading of Faircloth III, therefore, is that summary judgment was properly granted on the conversion claim because plaintiff did not establish that the monies owed him under the contract were specific or tangible enough to be the subject of a conversion action; indeed, he did not even allege it. And faced with the prospect of summary judgment, plaintiff had the burden of coming forward with anything which could establish specificity or tangibility at that time. It follows that the trial court did not err in granting summary judgment on the conversion claim based on Faircloth III and OCGA § 9-11-60 (h).

Plaintiff’s reliance on OCGA § 9-11-54 (b), for the proposition that the prior ruling of this court is not binding because the trial court’s prior grant of summary judgment was not a “final judgment,” is misplaced. That Code section allows an otherwise interlocutory ruling to become “final,” and therefore immediately appealable. Since grants of partial summary judgment are already immediately appeal-able under OCGA § 9-11-56 (h), OCGA § 9-11-54 (b) does not generally come into play when they are involved. And to the extent it does come into play, the effect would be to make the grant of partial summary judgment a “final judgment” which must be immediately appealed lest the right to appeal be lost. If the grant of partial summary judgment is not made “final” under OCGA § 9-11-54 (b), on the other hand, the party against whom it is entered has the option to appeal at that time or not; but if he does choose to appeal, as plaintiff did in Faircloth III, the decision on appeal is binding under OCGA § 9-11-60 (h).

3. Lastly, plaintiff challenges the trial court’s determination that under the contract, plaintiff could not be entitled to deferred commissions because he did not “retire.” The written “Senior Vice President” (“SVP”) agreement (which is the only agreement still at issue under the previous appellate decisions in this case) provides that plaintiff would be entitled to deferred commissions “[i]n the event of the occurrence of any of the Disabling Events prior to termination of this Agreement.” And the definitions section of the agreement states that “ ‘Disabling Event’ shall be defined as any one of the following: (1) Death of the SVP; (2) ‘Total Disability’ of the SVP as defined herein; or (3) Retirement of the SVP.” Plaintiff acknowledges that the death and total disability provisions do not apply, but argues that his cessation of work for defendant constitutes retirement. The contract specifies, however, that retirement can happen only after the SVP has either performed his duties for three years or reached the age of sixty-two. As neither of these preconditions to retirement occurred before plaintiff stopped working for defendant, the trial court did not err. Plaintiff’s citation of various rules governing construction of contracts fails to convince us otherwise, as the language of the agreement is clear, and where the language is clear, there is no room for construction. See, e.g., Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995).

Decided December 5, 1995

Reconsideration denied December 20, 1995

Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Cook & Palmour, Bobby Lee Cook, for appellant.

Chilivis, Cochran, Larkins & Bever, Nickolas P. Chilivis, John K. Larkins, Jr., Gary G. Grindler, Thomas D. Bever, Daniel P. Griffin, for appellees.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


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

text:
    A95A0889.
    FORD v. THE STATE.
    (466 SE2d 11)
   Pope, Presiding Judge.

Keith Ford was tried with co-defendant Kamal Naim Hassan and convicted of armed robbery.

Viewing the evidence in the light most favorable to the verdict, on July 31, 1993, after midnight, the victim was stopped at a traffic light in her Volkswagen Passat when Ford tapped on her window with a gun. He shouted obscenities at her through the window and told her to get out of the car and to give the car up. She got out, taking her purse and her daughter, who was accompanying her in the vehicle. Ford got into the driver’s seat, a second man got in the back seat, and they drove off in her car. The victim identified the man with the gun as Ford from a photographic lineup; she also positively identified him at trial.

Although the victim’s daughter, who was nine years old at the time of the crime, could not identify the perpetrator of the crime, she recalled that a man knocked on the window of the car with a gun.

Later on July 31, 1993, a police officer observed a Volkswagen Passat in the wrong lane of travel; she saw the vehicle swerve and leave the road a couple of times. The vehicle was eventually stopped, and Hassan, the driver, was apprehended. Hassan was taken to police headquarters where he gave a statement. Based on this investigation, Ford was arrested on August 6, 1993.

Neither Ford nor Hassan testified at trial. Ford’s defense was mistaken identity.

1. In his first enumeration, Ford contends that the eyewitness testimony was unreliable, and therefore, the evidence was insufficient to convict. We disagree and find that a rational trier of fact could find from the evidence adduced at trial proof of Ford’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Secondly, Ford claims that the trial court erred in failing to grant a mistrial when a detective improperly testified that Ford refused to give a statement after being read Miranda warnings at the time of his arrest. The objected-to testimony was in response to a question from the prosecutor as to whether biographical information was taken from Ford when he was taken into custody. The detective testified: “Yes, I did. I read Mr. Ford his Miranda warnings and he refused to give a statement.” Ford’s attorney moved for a mistrial outside of the jury’s presence. Ford’s attorney stated that if the court denied the motion, he would request curative instructions. The court denied the motion, but complied with the request for curative instructions, recognizing that the jury had been informed during preliminary instructions that the State had the burden of proof. In giving curative instructions, the court charged the jury that the State had the burden of proof beyond a reasonable doubt; that the defendant was not required to produce any evidence regarding his innocence; that no defendant is required to make a statement; and that any testimony to the contrary should be disregarded. Ford then renewed his motion for mistrial.

“In criminal cases, a comment upon a defendant’s silence ... is far more prejudicial than probative. ... A motion for mistrial is within the discretion of the trial court. This court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial is essential to the preservation of the right to a fair trial.” (Citations and punctuation omitted.) Dowdy v. State, 209 Ga. App. 95 (1) (432 SE2d 827) (1993); Chapman v. State, 263 Ga. 393, 394 (1) (435 SE2d 202) (1993). Although the evidence here was not overwhelming, see Gibbs v. State, 217 Ga. App. 614 (458 SE2d 407) (1995), it was quite strong. See generally Hill v. State, 250 Ga. 277 (4) (295 SE2d 518) (1982).

We conclude that the trial court properly denied Ford’s motion for mistrial. “Improper reference to a defendant’s silence, however, does not automatically require reversal. Here, the trial court promptly gave curative instructions on the State’s unalterable burden of proof and the right of the accused to keep silent, and unambiguously instructed the jury that they were not permitted to draw any adverse inference from the fact the accused had asserted his right to silence. Moreover, it appears that the comment objected to was inadvertent and unresponsive on the part of the witness, and was not an intentional reference by the prosecution to the silence of the defendant where an innocent man would protest his innocence. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion for mistrial.” (Citations and punctuation omitted.) Sims v. State, 213 Ga. App. 151, 152 (2) (444 SE2d 121) (1994).

3. Next, Ford contends that the trial court erred in proceeding with pre-trial evidentiary hearings in his absence. The State argues Ford was voluntarily absent and waived his right to be present.

The portion of the hearing which began in Ford’s absence concerned the voluntariness of co-defendant Hassan’s statement. The record indicates that Ford was absent from the hearing for a short period during which the only testimony was that of the officer who arrested Hassan. The officer did not testify regarding any event in which Ford was involved prior to Ford’s arrival in the courtroom.

“In McGinnis v. State, 208 Ga. App. 354, 357 (4) (430 SE2d 618) (1993), we held that conducting a pre-trial evidentiary suppression hearing in the defendant’s absence, like conducting a trial in the defendant’s absence, constitutes prejudicial error. Moreover, the defendant’s right to be present at such a hearing can be waived by defense counsel only if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel. (Cit.)” (Punctuation omitted.) Deal v. State, 213 Ga. App. 131 (443 SE2d 713) (1994).

The record clearly shows that Ford’s absence was before the jury was sworn, and thus before jeopardy attached, and we are unable to conclude that he waived his right to be present, as the State argues. Deal, 213 Ga. App. at 132. Nevertheless, given that the substance of the testimony which Ford missed did not involve him in any way, the court’s decision to proceed in his absence constituted, at most, harmless error. Unlike the situation in Perry v. State, 216 Ga. App. 749 (1) (456 SE2d 89) (1995), where the defendants were absent during lengthy testimony regarding the co-defendant’s alibi, here Ford was absent very briefly from a hearing as to the voluntariness of the co-defendant’s statement and the brief portion of testimony which Ford missed involved the circumstances surrounding Hassan’s arrest. The testimony could not have harmed Ford since it could have had no effect on the verdict rendered against him. See generally Wanzer v. State, 232 Ga. 523, 525 (1) (207 SE2d 466) (1974); compare Wilson v. State, 212 Ga. 73, 74-75 (90 SE2d 557) (1955). Accordingly, no new trial is required.

4. In his fourth enumeration, Ford argues that the trial court erred in allowing Hassan’s improperly redacted statement to be read to the jury. As redacted, Hassan’s statement referred to “seven of us,” who were involved in the robbery. In the redacted version, Hassan names two of the other individuals involved in the robbery and does not name Ford. Citing Hall v. State, 161 Ga. App. 521 (1) (289 SE2d 313) (1982), and other cases, Ford contends that the manner in which the court redacted the statement indicated to the jury that the person holding the gun in the robbery was Ford and that any reference to his existence should have been eliminated. Although the court instructed the jury that the statement was to be considered only as it related to Hassan and not against Ford, Ford argues that it was clear that the statement referred to him.

After reviewing the redacted statement, we conclude, contrary to Ford’s arguments, that it was not apparent from Hassan’s statement that he referred to Ford. “Evidence of the confession of a co-defendant implicating a defendant cannot be admitted against that defendant at a joint trial where the co-defendant does not take the stand and is not available for cross examination. [Cits.] The implication of another defendant must be direct. It is not a Bruton violation if the redacted confession identifies the defendant only through the jury’s making connections with other evidence and drawing inferences. [Cit.] The statements standing alone must clearly inculpate the defendant. [Cits.] Owens v. State, 193 Ga. App. 661, 662 (3) (388 SE2d 712) (1989). As in Owens, the co-defendant’s statements were not inculpatory of [Ford].” (Punctuation omitted.) Walker v. State, 213 Ga. App. 407, 412 (7) (444 SE2d 824) (1994).

5. Finally, Ford argues that the trial court erred by allowing the victim to make an in-court identification in that the pre-trial identification procedure was unnecessarily suggestive and there was a substantial likelihood of misidentification. Ford argues that it was dark when the identification was made; that the victim saw the perpetrator briefly; that she initially gave a different description of Ford — particularly of his hair; and that the photographic lineup procedure was tainted.

The trial court held a pre-trial hearing on Ford’s motion to suppress the photographic identification. An investigating detective testified at the hearing and at trial that on August 11, 1993, the victim positively identified Ford from a photographic lineup as the person with the handgun. He testified that the victim selected Ford’s picture from an envelope which contained six photographs.

The victim testified at the hearing and at trial that she saw Ford’s face clearly on the evening of the crime and that he was standing nearby at the time she saw him. She stated that the area in which she observed him was lighted, and that she viewed his face for two to three seconds while he was tapping on the window with the gun and that she observed him again when she got out of the car. She stated that she was given several photographs in a pile, which she then went through. She testified that she had no problem identifying Ford’s picture in the photographic lineup and that she was certain of her selection of Ford’s picture. She stated that she also selected Ford at juvenile court as the perpetrator with the gun. She stated that she remained certain of her selection of Ford’s photograph and that she based her identification on his high cheek bones, slender face, slim build, and the tone of his skin.

“Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Daniels v. State, 207 Ga. App. 689, 691 (4) (428 SE2d 820) (1993).

Here, Ford raises no specific arguments as to how the photographic lineup was impermissibly suggestive, and after reviewing the testimony and the photographs in the record, we find that it was not impermissibly suggestive.

Even assuming arguendo that the photographic identification procedure was impermissibly suggestive, “exclusion is mandated only if there was also a substantial likelihood of irreparable misidentification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation.” (Citations and punctuation omitted.) Jenkins v. State, 215 Ga. App. 540, 542 (2) (451 SE2d 457) (1994); see also Banks v. State, 203 Ga. App. 355, 356 (416 SE2d 866) (1992).

“Applying the foregoing, we are satisfied from our review of the record that the identification procedure used in the instant case did not result in a substantial likelihood of misidentification. Furthermore, even if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citation and punctuation omitted.) Jenkins, 215 Ga. App. at 542. The victim’s testimony established that her identification had an independent origin, and we are satisfied, considering the totality of the circumstances, that the trial court did not err in denying defendant’s motion to exclude the in-court and pre-trial identification of Ford.

Judgment affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur, but not in all that is written in Divisions 2 and 3 of the opinion.

Regarding Division 2, in Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991), the Georgia Supreme Court made abundantly clear that “in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative. . . . [S]uch a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.”

In this case, the district attorney asked Detective Berry: “Now, Detective, when you took Keith Ford into custody did you take any biographical information or make note of his weight or height at that time?” The witness responded: “I read Mr. Ford his Miranda warnings and he refused to give a statement — .” Immediately, defense counsel, the prosecutor, and the court recognized that a violation of the rule had occurred and, because defense counsel objected, the jury was sent out. After discussion, the jury returned and the court gave instructions meant to neutralize the poison, but defendant insisted on a mistrial, which the court denied.

Defendant urges that his case is similar to Gibbs v. State, 217 Ga. App. 614 (458 SE2d 407) (1995), where the court reversed the conviction because of the reference to defendant’s refusal to give a statement. It is distinguishable because the prosecutor in that case elicited the forbidden information, exacerbated the problem by referring to the absence of a statement in another question, and in effect contrasted defendant’s silence with the victim’s testimony-confirming statement to the police; and the court gave no curative instructions. Here there were appropriate instructions, and the district attorney was not one of the culprits. Nor did defendant’s silence constitute a boding presence in the trial, as the court feared there was in Gibbs’ trial.

In both cases, however, the evidence against the defendants was not overwhelming, although it was stronger in Ford’s case. In addition to the victim’s identification, the co-defendant’s redacted statement was read to the jury. It named certain boys who were with him but simply referred to defendant as “one of the boys,” a substitute for his name ordered by the court to meet the mandate of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). The jury could connect this with defendant because it was after the police talked to this co-defendant and other witnesses that they went and arrested defendant. See Walker v. State, 213 Ga. App. 407, 412 (7) (444 SE2d 824) (1994). Defendant had not been present in the stolen car when the police caught up with it.

Based on all of the circumstances, I can agree that the jury’s hearing the detective’s unresponsive answer was harmless in that it did not deprive defendant of a fair trial, of due process. Gibbs, supra at 615, citing Smith v. State, 244 Ga. 814, 815 (262 SE2d 116) (1979).

The detective, however, should be admonished. He had been with the department for five and one-half years and had been on the major felony robbery unit for a year and a half. His answer was patently unresponsive, and in this regard I do not agree with the majority that it was “inadvertent and unresponsive.” He knew or should have known that he was forbidden to refer to defendant’s refusal to make a statement. It should not be necessary to reverse convictions in order to assure that this breach does not occur.

Regarding Division 3, I agree that, if defendant did not waive his presence by being late to court, there was error in proceeding without him. I also agree that in this instance it was harmless, but not because it “did not involve him in any way,” the test employed in the majority opinion. The defendant must be present “when the court takes any action materially affecting his case.” (Citations and punctuation omitted.) Collins v. State, 191 Ga. App. 289, 290 (2) (381 SE2d 430) (1989). That is the test. Although Ford was not present when his co-defendant was arrested driving the stolen car the same night the charged crime was committed, those events clearly materially affected defendant because the driver implicated other boys besides the two who were with him as passengers when he was arrested. If the test utilized by the majority were sufficient, Ford would have no right to be present during the questioning of the detective about the events surrounding the chase and arrests at all. These events constituted material portions of the sequence which, when added up, convicted defendant as one of the robbers.

The reason the error, if any, is harmless is because only preliminary matters were discussed, with respect to what was to be heard and who was to testify, and the detective who obtained a statement from the co-defendant had only begun to describe the circumstances in which he obtained the statement in the youth unit of the police department. He had not begun to describe his conversation with the co-defendant, so Ford was not deprived of hearing about the interview. Any error in this regard was harmless because it “manifestly caused no injury to the accused”; it was not “prejudicial in character.” (Citation and punctuation omitted.) Collins, 191 Ga. App. at 290.

Decided September 21, 1995

Reconsideration denied December 20, 1995

Peters, Townsend, Wilson & Roberts, R. Stephen Roberts, J. M. Raffauf, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Desiree L. S. Peagler, Assistant District Attorneys, for appellee.

       Hassan was convicted of armed robbery and theft by receiving stolen property; his conviction was affirmed in Hassan v. State, 216 Ga. App. 484 (455 SE2d 314) (1995).

       The transcript shows the testimony constituted five pages of questions and answers.

       Defendant was still absent when the court started the proceeding at 9:17 even though it had been scheduled for 9:00 a.m. When he did appear, no explanation was offered or asked for, so we cannot determine whether he waived his presence by an inexcusable absence. Collins v. State, 200 Ga. App. 71 (1) (406 SE2d 520) (1991).