text:
    A93A0565.
    PETERSON et al. v. RTM MID-AMERICA, INC. et al. ARBY’S, INC. v. PETERSON et al.
    A93A0566.
    (434 SE2d 521)
   Cooper, Judge.

Randall Gernaat, a white supervisor at an Arby’s franchise in Michigan, robbed the restaurant and murdered Dwayne Peterson, a black co-worker. Peterson’s parents, individually and on behalf of his estate, brought this action against Arby’s, Inc. as well as RTM, Inc. and RTM Mid-America, Inc., two corporations which allegedly owned and operated the franchise. The parents sued for wrongful death and violation of Michigan’s Elliott-Larsen Civil Rights Act, MCL § 37.202 et seq. The parties agreed that the substantive law of Michigan, the site of the murder, applied. In Case No. A93A0565, the parents appeal the trial court’s grant of summary judgment for all defendants on all claims. In Case No. A93A0566, which we will need to address only if we reverse in Case No. A93A0565, Arby’s, Inc. appeals an earlier order of the trial court denying its separate motion for summary judgment on other grounds. For convenience, we will refer to the parents as appellants and the corporate defendants as appellees throughout this opinion. Also for convenience, we will refer to RTM, Inc. and RTM Mid-America, Inc. collectively as “RTM” except in Division 4.

Viewing the evidence in the light most favorable to appellants as non-movants on a motion for summary judgment, the record shows that Gernaat and Peterson were the only employees working in an Arby’s franchise at approximately 4:30 or 5:00 one morning. RTM had recently hired Peterson through a work release program with the local corrections center. Gernaat was an assistant manager of the restaurant and was acting as the shift supervisor. When the power went off, Gernaat pretended to try unsuccessfully to turn it back on. He then herded the few customers in the restaurant out the front door. While doing so, he talked to Officer Joann Woodfield, who was waiting in front of the restaurant for another officer who was to meet her there for breakfast. Gernaat explained to Officer Woodfield that the power was off and said he needed to rush back inside because he did not trust the other employee to be in the restaurant alone. Gernaat then went back inside and murdered Peterson by shooting him with a gun three times and stabbing him thirteen times. He robbed the restaurant, hid the money above the ceiling in the rest room and called the police to report an armed robbery. When the police arrived, Gernaat told them the robbery and murder were committed by two black men and a third man who was either black or Hispanic.

Michael Kovac, a 21-year-old area supervisor with RTM, had hired Gernaat as assistant manager several months earlier. Gernaat was recommended to Kovac by Pat Evans, a restaurant manager with RTM. Kovac hired Gernaat after talking with Evans, interviewing Gernaat twice and calling one of Gernaat’s former employers. Kovac did not call any of the other former employers or any of the personal references listed on Gernaat’s employment application. He also did not run a background check on Gernaat although he had authority to do such a check and sometimes did on other managerial employee candidates, including at least two black candidates. If Kovac had called other references or run a background check or both, he could have discovered that Gernaat had a history of emotional and behavioral problems, including numerous thefts, and had a criminal record in Florida. After Gernaat was hired, two incidents of note occurred prior to the murder of Peterson: Gernaat reported that he broke up a fight between three black men by the restaurant’s dumpster, knocking one of the men out and breaking the leg of another, but apparently this incident never happened; and Gernaat reported cash shortages on his shift which he blamed on another young black man, Eric Boyles. At least half of the employees in that particular Arby’s franchise were black at the time these incidents occurred.

The trial court granted appellees’ motion for summary judgment on the grounds that the wrongful death action was barred by the exclusive remedy provision of the Michigan workers’ compensation statute (MCL § 418.131) and there was no violation of the civil rights statute as a matter of law.

1. Because its disposition may affect our analysis of other issues, we first address appellants’ argument that the trial court erred in refusing to consider affidavits from two police officers in which they opine that Gernaat’s murder of Peterson was motivated by personal and racial animus. Opinions are admissible as long as the witness recites the facts on which his opinion is based. OCGA § 24-9-65. Officers Joann Woodfield and Peter Woodfield stated their opinions were based on the following factors: (1) the brutal nature of the murder, in which Gernaat used three weapons to inflict sixteen wounds, (2) Gernaat’s statement to both officers that the crime had been committed by three non-white men, (3) Gernaat’s statement to Officer Joann Woodfield after the power went off that he needed to get back inside because he did not trust Peterson alone in the dark, (4) Gernaat’s earlier report about breaking up a fight among three black men, and (5) Gernaat’s earlier report of suspected theft by another young black worker. While an officer may testify as to his opinion of a perpetrator’s motives when that opinion is based on statements made by the perpetrator to that officer in the context of an investigation, O’Kelley v. State, 175 Ga. App. 503 (3) (333 SE2d 838) (1985), he may not give an opinion based on hearsay reports about what the perpetrator said or did on another occasion, even if those hearsay reports are elicited in the course of his investigation. See Avant Trucking Co. v. Stallion, 159 Ga. App. 198 (1) (283 SE2d 7) (1981). Factors (4) and (5) above are clearly inadmissible hearsay and cannot be considered in determining whether the opinions are sufficiently supported by facts. For purposes of this discussion, we will assume factor (3) is admissible pursuant to the res gestae exception to the hearsay rule. Id. Even so, the affiants’ opinions are supported only by the nature of the murder, the fact that Gernaat blamed the crime on three non-whites and the fact that Gernaat said he did not trust Peterson. “The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court.” Dept. of Transp. v. McLaughlin, 163 Ga. App. 1, 5, (3) (292 SE2d 435) (1982). In this case, the trial court determined that the facts on which the officers’ opinions could properly be based did not adequately support those opinions, and we cannot conclude that it abused its discretion in doing so.

2. In two enumerations of error, appellants argue that summary judgment was improper with respect to their wrongful death claim because a question of fact remains as to whether their son’s death “arose out of” his employment, and thus as to whether the workers’ compensation statute covers this situation. Historically, an injury only arose out of employment if the injury was caused by the employment or was attributable to a risk incident to such employment. See Hopkins v. Michigan Sugar Co., 150 NW 325 (Mich. 1915). However, the Michigan Supreme Court adopted positional risk analysis in 1970. Whetro v. Awkerman, 174 NW2d 783 (Mich. 1970); see also Queen v. Gen. Motors Corp., 196 NW2d 875 (Mich. App. 1972). Pursuant to positional risk analysis, an injury arises out of employment if the employment caused the employee to be in the position he was in when the injury occurred and brought him into contact with the risk that caused the injury. See Whetro, supra. Appellants cite Devault v. Gen. Motors Corp., 386 NW2d 671 (Mich. App. 1986) and Morris v. Soloway, 428 NW2d 43 (Mich. App. 1988) for the proposition that positional risk analysis does not apply to assaults by co-workers. However, these cases hold only that positional risk analysis does not apply to assaults by co-workers which are motivated by purely personal reasons unrelated to work. While the appellate courts of Michigan have not addressed the application of positional risk analysis to assaults by co-workers which are not motivated by purely personal reasons, a Wisconsin court has applied the doctrine to provide workers’ compensation coverage in such a context. See Applied Plastics v. Labor &c. Comm., 359 NW2d 168 (Wis. App. 1984). We conclude the courts of Michigan would do the same.

It was only because of his employment that Peterson was at the restaurant on the morning of his murder and only because of his employment that he had any contact or relationship with Gernaat. Thus, the trial court correctly ruled that Peterson’s death arose out of his employment unless evidence in the record raises a question regarding whether Gernaat’s attack was motivated by personal animosity. Even viewing the evidence in the light most favorable to appellants, the only facts from which personal animosity could arguably be inferred are the victim’s multiple wounds, which can most logically be explained as Gernaat’s attempt to make it look like the robbery and murder were committed by three perpetrators rather than one, and Gernaat’s statement that he did not trust Peterson alone, which can most logically be explained as Gernaat’s excuse to leave Officer Wood-field and put his plan into action. It is undisputed that Peterson had just started working at the restaurant, that he and Gernaat hardly knew each other and that they did not know each other at all outside of work. Given this lack of a personal relationship, the trial court properly ruled that no question was established regarding a personal motivation for the murder, and thus that Peterson’s death was covered by the workers’ compensation statute.

3. Appellants next contend that even if their son’s death arose out of his employment, the exclusive remedy provision of the workers’ compensation statute does not apply because his death resulted from an intentional tort. “The right to recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. . . . The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court.” MCL § 418.131. Clearly, any alleged negligence on the part of appellees in hiring Gernaat as a supervisor cannot constitute actual knowledge that an injury was substantially certain to occur. See Eads v. Simon Container Machinery, 676 FSupp. 786 (E. D. Mich. 1987). Moreover, Gernaat’s intent to murder will only be imputed to appellees if Gernaat stood in such a position of ownership and control with respect to appellees that he must realistically be considered their alter ego. See Beauchamp v. Dow Chemical Co., 398 NW2d 882, 888 (Mich. 1986); Burgess v. Holloway Constr. Co., 332 NW2d 584 (Mich. App. 1983). The cases cited by appellants to the contrary are inapposite because they involve actual knowledge rather than intentional assault. With respect to intentional assault, Professor Larson states: “Intentional injury inflicted by the employer in person on his employee may be made the subject of a common-law action for damages. . . . The same result may follow when the employer is a corporation and the assailant is, by virtue of control or ownership, in effect the alter ego of the corporation. But when the intentional injury is committed by a co-employee, the better rule is than an action in damages will not lie against the employer merely because the co-employee occupied supervisory status in relation to the claimant.” 2A Larson, Workmen’s Compensation Law, § 68.00, p. 13-1; see also id. at § 68.21 and cases cited therein. Gernaat, a recently hired assistant manager of an Arby’s franchise, was not in a position of ownership or control with respect to appellees. Accordingly, the trial court did not err in concluding that Gernaat’s intent could not be imputed to appellees and the intentional tort exception to the exclusive remedy bar did not apply.

4. In three enumerations of error, appellants contend that summary judgment should not have been granted for all three appellees because there is a question of fact regarding which of the appellees was Peterson’s employer. In support of this contention, appellants cite cases holding that whether a particular defendant is an employer for purposes of the exclusive remedy provision depends on consideration of several factors and that such a determination will generally be one for the jury. See, e.g., Derigiotis v. J. M. Feighery Co., 460 NW2d 235 (Mich. App. 1990). However, each of the cited cases involved allegations of negligence unrelated to hiring or employment (i.e., allegations of acts or omission which would have constituted negligence regardless of whether it was the employer who committed or omitted them). In this case, on the other hand, appellants allege claims based on the negligent hiring of a co-employee. Though it may be unclear which entity employed Peterson, it is clear that the same entity that employed him also employed Gernaat. Thus, this issue presents a catch-22 for appellants: each appellee can be liable for negligent hiring only if it, or an entity acting as its agent, employed the co-employee; and each employee is entitled to rely on the exclusive remedy provision if it or its agent employed Peterson. See Leonard v. All-Pro Equities, 386 NW2d 159 (Mich. App. 1986). Accordingly, in the context of a negligent hiring case such as this one, where only the employer or his agent could be liable, the trial court did not err in allowing all three appellees to rely on the exclusive remedy provision.

5. Lastly, appellants argue that the trial court erred in granting summary judgment on their civil rights claims. Specifically, appellants contend that appellees engaged in discriminatory hiring practices which, together with other discriminatory policies and practices, created a racially discriminatory environment which fostered Gernaat’s alleged racial animus. They further assert that the murder itself was racially motivated and that Gernaat’s motivation may be imputed to appellees. We have read the entire record in this case, including the depositions of Rhodes added to the record by motion of appellants, in the light most favorable to appellants. Pretermitting the question of whether Gernaat’s racial animus could be imputed to appellees, we conclude that there is no evidence from which a factfinder could logically infer either that appellees engaged in racially discriminatory practices or that Peterson’s murder was racially motivated. Therefore, summary judgment on this issue was properly granted.

Decided July 12, 1993 —

Reconsideration denied July 28, 1993 —

Cofer, Beauchamp & Butler, Frank R. Siegel, Bryant K. Smith, for Peterson.

Irwin, Bladen, Baker & Russell, R. Chris Irwin, Carter & Ansley, Thomas E. Magill, for Arby’s and RTM Mid-America, Inc.

6. Because we have affirmed the judgment in Case No. A93A0565, Arby’s appeal in Case No. A93A0566 is rendered moot.

Judgment in Case No. A93A0565 affirmed. Appeal in Case No. A93A0566 dismissed.

McMurray, P. J., concurs. Beasley, P. J., concurs in judgment only as to Division 5.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A93A0593.
    GOOD OL’ DAYS DOWNTOWN, INC. et al. v. YANCEY.
    (434 SE2d 740)
   Cooper, Judge.

This interlocutory appeal arises out of an action filed by appellee against appellants to recover for personal injuries appellee received when he was struck in the face by a patron at appellants’ restaurant/ bar. We granted appellants’ application to consider whether the trial court properly denied their motion for summary judgment.

Viewed in favor of appellee’s opposition to the summary judgment, Eiberger v. West, 247 Ga. 767 (1) (281 SE2d 148) (1981), the evidence shows that appellee was sitting with a female friend át a table at the Good OF Days restaurant in Sandy Springs. Another customer in the restaurant, James Haynes, walked over to appellee’s table, accused appellee of taking his beer and demanded that appellee buy him a beer. For approximately the next five minutes, Haynes continued to stand over appellee’s table insisting that appellee buy him a beer. Haynes’ voice became gradually louder, and his tone grew impatient. As a result of Haynes’ behavior, appellee attempted to get the attention of a waitress to ask that she bring a beer for Haynes. After waiting a few minutes for the waitress to bring a beer, appellee decided to go to the bar to get the beer for Haynes. When he stood up, Haynes struck appellee in the face with his fist and then hit him in the face with a pool cue. Appellee suffered severe injuries to his face and mouth as a result of the incident.

1. Appellants’ first three enumerations of error concern whether appellee properly amended his complaint to add party-defendants. The record reflects that on January 7, 1991, appellee filed his original complaint against Good 01’ Days Downtown, Inc. d/b/a Good 01’ Days. Discovery revealed that at the time of the incident, the Sandy Springs Good 01’ Days was not owned by Good 01’ Days Downtown, Inc., but was owned by Flower Pot Food Factory, Inc., a subsidiary of Good 01’ Days, Inc. Therefore, on March 22, 1991, prior to the expiration of the statute of limitation, appellee filed an amended complaint against Good 01’ Days, Inc. and Flower Pot Food Factory, Inc. d/b/a Good 01’ Days. On March 30, 1992, appellants filed a motion for summary judgment, contending in part that the lawsuit should be dismissed against the newly-added defendants because appellee did not seek leave of court to add the defendants pursuant to OCGA § 9-11-21. OCGA § 9-11-15 (a) provides that “[a] party may amend his pleading as a matter of course without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-21 provides that “[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” It is undisputed that appellee never sought leave of court to add the defendants. However, the trial court’s denial of appellants’ motion for summary judgment, made on the ground that no motion for leave to amend was filed, amounts to an implicit approval of appellee’s amendment. While the proper procedure would have been for appellee to seek leave to add the parties, it appears that appellants were served without inexcusable delay, that they have not been prejudiced in maintaining a defense on the merits and that they should have known that they were the proper defendants in the case. Moreover, it is undisputed that the newly-added defendants were properly served within the statute of limitation. Accordingly, we conclude that the trial court’s denial of summary judgment on the ground that appellee did not seek leave to add the parties-defendant was a proper exercise of the trial court’s discretion to allow the amendment. See, e.g., Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (1) (359 SE2d 362) (1987).

2. Appellants also contend that the trial court erred in denying their motion for summary judgment on appellee’s theory of negligence and inadequate security. “A proprietor’s duty to invitees is to ‘exercise ordinary care in keeping the premises and approaches safe.’ OCGA § 51-3-1. The proprietor is not the insurer of the invitee’s safety, [cit.], but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. [Cit.] If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). Appellants argue that the attack against appellee was sudden and unprovoked and that the incident was not foreseeable since there was no evidence of any substantially similar incidents which occurred at the restaurant. However, appellee asserts that the employees of the restaurant had sufficient time to react to his attacker’s loud and abusive behavior which continued for over five minutes within hearing distance of the waitresses and bartenders. Summary judgment should only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” (Punctuation omitted.) Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 646 (2) (409 SE2d 262) (1991). In ruling on a motion for summary judgment, the trial court is obliged to consider the entire setting of the case. Appellee and his female companion testified in their respective depositions that Haynes’ abusive behavior consisted of loud cursing and repeated demands that appellee buy him a beer. Appellee’s companion testified that a waitress and bartender had to have been aware of Haynes’ behavior. Although appellants’ employees denied hearing anything more than a “discussion” between Haynes and appellee, the evidence at least raises a question of fact as to whether appellants could have foreseen the potentially dangerous situation and intervened prior to the violent attack on appellee. “There is no evidence as to what could have been done to protect appellee from injury. . . . However, it cannot be inferred, from the failure of appellants’ [employees] to act, that nothing could have been done. On motion for summary judgment, all inferences are to be resolved against appellants and in favor of appellee. [Cit.]” Shell Oil Co. v. Diehl, 205 Ga. App. 367, 368-369 (422 SE2d 63) (1992). Accordingly, construing the evidence most favorably to appellee, we conclude that factual questions exist for a jury to resolve on the issue of negligence and diligence, and the trial court correctly denied appellants’ motion for summary judgment. See Shell Oil Co., supra.

Decided July 13, 1993 —

Reconsideration denied July 28, 1993 —

Bentley, Karesh & Seacrest, Gary L. Seacrest, Stephen D. Apolinsky, for appellants.

Judgment affirmed.

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

Lance A. Cooper, for appellee.


text:
    A93A0616.
    SMITH v. THE STATE.
    (434 SE2d 528)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault and armed robbery. He appeals from the judgment of conviction and sentence, raising 15 enumerations of error.

The evidence reveals that appellant, a medical school graduate, and the victim, an attorney, developed a friendship in 1979. Appellant and the victim went to Las Vegas on at least one occasion to gamble. In 1981, the victim ran for public office and borrowed $8,000 from appellant. The victim paid appellant approximately $1,500 in 1982 or 1983 but did not make any other payments to appellant. On May 22, 1987, appellant and another man went to the victim’s office looking for the victim, and when they did not find him, appellant and the man went to the victim’s home. The victim had been alerted by his office that two men were looking for him and was in his garage when appellant and the other man arrived. The victim recognized appellant immediately, and appellant told the victim that he wanted his money. The victim told appellant that he could give appellant a check. Appellant hit the victim in the face and slammed the victim against his car. Appellant then took out a small revolver and began demanding his money. The victim explained that the banks were closed for the weekend but appellant continued screaming that he wanted his money. Appellant snatched a gold chain from the victim’s neck, breaking it off as he took it. The man who was with appellant followed the victim’s wife upstairs where he found a gun holster. When the man showed the holster to appellant, appellant shot the victim once in the left thigh. The victim dropped to the ground, and appellant stood over him and shot him twice in the left knee and twice in the right knee. Appellant told the victim that if he told anyone what happened he could expect to see his son’s head on a platter. Appellant and the man left, and the victim’s wife called the police. The victim told the police that appellant shot him, and the victim and his wife picked appellant’s picture out of a photographic lineup. Appellant testified and admitted that he knew the victim and that the victim owed him money. However, appellant denied that he went to the victim’s home and shot the victim.

1. Appellant’s first two enumerations of error concern a situation which arose while the jury was deliberating. One of the jurors sent a note to the judge stating that appellant was a medical student at Emory while she was a resident and that although she does not remember him, they could have worked together for a month. The trial judge discussed the note with appellant’s attorney as well as the prosecutor, but appellant was not present during this discussion. Appellant’s trial attorney stated in a post-trial affidavit that he requested that the juror be replaced with the alternate and this request was denied by the trial judge. Appellant’s trial attorney also stated that he did not discuss the incident with appellant.

Appellant first contends that he was denied his right to be present during all parts of the trial. We conclude that the brief colloquy between counsel and the trial judge about the juror’s note was not a critical stage of the trial proceedings at which appellant had an absolute right to be present. Stone v. State, 177 Ga. App. 750 (1) (341 SE2d 280) (1986).

Appellant also argues that the trial judge erred in not conducting a hearing into possible juror bias. We first note that the record does not reflect that any request for a hearing was made. More importantly, the note from the juror does not reflect any potential bias because the juror expressly stated that she did not remember appellant. We therefore find no merit to appellant’s first two enumerations of error.

2. In his next two enumerations of error, appellant complains that he is entitled to a new trial because his jury included jurors who were biased against him and who gave false information. These two jurors include the juror who is the subject of appellant’s first two enumerations of error and another juror who gave an affidavit in support of appellant’s motion for new trial in which he stated that as the trial progressed he remembered something about appellant’s previous involvement in a drug manufacturing case. However, that juror stated that this information did not affect his decision to return a guilty verdict against appellant. Appellant claims that these two jurors failed to disclose during voir dire that they knew him. We note at the outset that there is no transcript reflecting the voir dire examination of the jurors. Assuming arguendo that the prospective jurors were asked whether they knew appellant and that they responded in the negative, appellant failed to show that those answers were untruthful or that he was prejudiced. Accordingly, the trial court did not err in denying appellant’s motion for new trial on the ground that he was denied an impartial jury. See Mosley v. State, 257 Ga. 382 (4) (359 SE2d 653) (1987).

3. In his fifth enumeration of error, appellant contends that the trial court erred in its charge to the jury. Although appellant takes this opportunity to assert error with eight of the trial court’s charges, the record reflects that appellant objected only to the charge on flight. Consequently, this is the only error preserved for our review. See Mapp v. State, 204 Ga. App. 647 (5) (420 SE2d 615) (1992). The trial judge instructed the jury that flight is a circumstance from which an inference of guilt may be drawn. In Renner v. State, 260 Ga. 515 (3b) (397 SE2d 683) (1990), the Supreme Court of Georgia held that in cases tried after January 10, 1991, it is error to give a charge on flight. However, since appellant’s trial concluded in December 1989, Renner does not apply. There was evidence that appellant attempted to flee when confronted with officers present to arrest him, and we find no error in the court’s charge. See Clayton v. State, 203 Ga. App. 843 (2b) (418 SE2d 610) (1992).

4. Appellant argues that the trial court improperly limited his cross-examination of the victim. Specifically, appellant argues that the trial court did not allow him to explore the victim’s prior gambling record and debt history or about the victim’s possible motive for accusing appellant of the offenses. During cross-examination, the victim was asked whether he had acquired a significant amount of gambling debts and the victim denied the allegation. When appellant’s counsel pursued the matter further, the State objected, and outside the presence of the jury, appellant’s counsel informed the trial judge that the victim had been charged with misdemeanor gambling. The trial judge ruled that appellant could offer evidence that the victim was a major gambler and thereby impeach the victim’s testimony. The record reflects that appellant conducted an extensive cross-examination regarding trips the victim made to Las Vegas and lines of credit he may have established at various casinos. Appellant was also allowed to ask the victim about whether he accused appellant because it would be easier to explain his injuries. The victim denied this as a possibility, and the trial judge instructed appellant’s counsel to move to another subject. We find no improper limitation on appellant’s right to a thorough and sifting cross-examination. See Ballentine v. State, 194 Ga. App. 560 (2) (390 SE2d 887) (1990).

5. Similarly, we find no merit to appellant’s contention that the trial court improperly limited his testimony on direct examination. Appellant attempted to testify that the victim suggested a way that he could get rid of a $20,000 gambling debt, and the trial court ruled that this was irrelevant. We find no error.

6. Appellant next argues that he is entitled to a new trial because he was convicted on the victim’s perjured testimony. In his motion for new trial, appellant presented evidence which contradicted the victim’s trial testimony that he did not have a criminal record, that he was not a major gambler and that he did not have credit in Las Vegas. “Aside from any questions of the timing of appellants’ knowledge or of diligent acquisition, the . . . evidence, if accepted, operates solely to impugn [a witness’s] credibility at trial. This is not enough in and of itself to warrant another trial.” Eliopulos v. State, 203 Ga. App. 262, 263 (1) (416 SE2d 745) (1992).

7. In his ninth enumeration of error, appellant contends that the trial court erred several times in admitting negative character evidence. We have examined the transcript in all of the places where appellant contends error occurred. We note the conspicuous absence of any objection to most of the references, all of which only incidentally, at best, reflect on appellant’s character. Furthermore, ‘““[w]here evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant.” ’ [Cit.]” Bogan v. State, 206 Ga. App. 696, 697 (1) (426 SE2d 392) (1992).

8. Appellant also argues that the trial court erred in allowing the State to make an improper closing argument. Appellant failed to object to any portion of the prosecutor’s closing argument. Consequently, there is nothing for us to review. Smith v. State, 189 Ga. App. 244 (6) (375 SE2d 496) (1988).

9. Appellant contends that the trial court made an improper statement in the presence of the jury. Appellant says that the judge referred to his evidence as a “bunch of trash.” However, the record reflects that in making a ruling about the inadmissibility of testimony sought to be elicited from appellant, the trial judge stated: “We’re talking about irrelevant things, and then we keep building on it other things, and so we end up with a bunch of trash in front of the jury.” We find nothing improper about the trial judge’s comment which was clearly directed at specific irrelevant testimony he excluded from the jury.

10. In his twelfth enumeration of error, appellant contends that the evidence is insufficient to support his conviction of armed robbery. There is evidence that appellant had his gun out at the time that he forcibly took the gold chain from the victim’s neck. This evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

11. Appellant argues that throughout the trial, the trial judge admitted hearsay evidence. The record does not reflect that appellant made any objection to any of the alleged hearsay evidence. “ ‘It is well settled that while evidence may be subject to objection yet if no objection is made in the trial court, or if the only objection made is not good, no reversible error is committed by the trial court in allowing the evidence to be submitted. (Cits.)’ [Cit.]” Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991).

12. Appellant’s contention that the State failed to provide him with exculpatory Brady (v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)) material is also without merit. There is no evidence that any wilful or intentional concealment occurred in this case or that there was any exculpatory evidence in the hands of the prosecutor. Accordingly, appellant failed to carry his burden of establishing a Brady violation. See Brown v. State, 192 Ga. App. 187 (3b) (384 SE2d 254) (1989).

Decided July 12, 1993 —

Reconsideration denied July 28, 1993 —

Michael K. McIntyre, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Kenneth D. Feldman, Assistant District Attorneys, for appellee.

13. In his final enumeration of error, appellant contends that the trial court erred by not recording the entire trial including voir dire. Since the record does not reflect that appellant requested complete recordation, this enumeration is without merit.

Judgment affirmed.

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


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A0622.
    OLIVER v. WAL-MART STORES, INC. et al.
    (434 SE2d 500)
   Cooper, Judge.

Appellant, an employee of Wal-Mart Stores, Inc. (“Wal-Mart”), was accused by her manager and a security guard employed by WalMart of taking a ten-cent cup of ice without paying for it. Although she was not fired, she became very upset after her manager read a counseling statement to her. Following the incident, appellant had trouble sleeping and experienced chest pains and feelings of low self esteem. Appellant subsequently filed a lawsuit against Wal-Mart, the manager and the security guard (hereinafter “appellees”), asserting claims of libel, slander and intentional infliction of emotional distress. The trial court entered an order granting partial summary judgment to appellees on some of appellant’s claims, leaving for adjudication appellant’s claim of slander against the security guard and her claim of intentional infliction of emotional distress against the manager and Wal-Mart. The slander claim is based on a statement made by the security guard while viewing a videotape of the alleged theft. He allegedly stated that the scene depicted in the videotape clearly showed appellant taking the ice. The intentional infliction of emotional distress claim against the manager and Wal-Mart is based on the manager’s reading of the counseling statement to appellant and later reprimanding appellant for discussing the incident with another employee. Appellees subsequently amended their answer to allege that the remaining claims were barred by the exclusive remedy provision of the Workers’ Compensation Act (the “Act”) and filed a motion for summary judgment on that ground. The trial court granted appellees’ motion for summary judgment and this appeal follows.

Appellant’s sole enumeration of error is that the trial court erred in concluding that her claims for slander and intentional infliction of emotional distress were barred by the exclusivity provisions of the Act. OCGA § 34-9-11 (a) provides, in pertinent part, that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of . . . injury. ...” OCGA § 34-9-1 (4) provides the following definition of injury: “ ‘Injury’ or ‘personal injury’ means only injury by accident arising out of and in the course of the employment. ...” This court has held that to be compensable under the Act, the injury must be a physical injury or harm. See W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (385 SE2d 106) (1989); Hanson Buick v. Chatham, 163 Ga. App. 127, 129 (292 SE2d 428) (1982). It is undisputed that the only injury involved in this case is a non-physical one. Appellees, citing Bryant v. Wal-Mart Stores, 203 Ga. App. 770 (417 SE2d 688) (1992), argue that the injury is nevertheless compensable because it arose out of and in the course of employment. However, Bryant, is distinguishable from this case because in that case, there was a physical injury connected to the non-physical injuries claimed by plaintiff. We conclude that since the only injury involved in this case is a non-physical one, it is not one which is compensable under the Act. Consequently, we hold that the trial court erred in granting summary judgment to appellees based on the exclusivity provisions of the Act.

Judgment reversed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur because by their very nature, claims of slander and intentional infliction of emotional distress are excluded from coverage under the Workers’ Compensation Act. The right to workers’ compensation for injuries proximately caused by such tortious acts is not within the purview of the Act because these types of injuries fall outside the definition of “injury” or “personal injury” as used in the Act. OCGA § 34-9-1 (4). None of the injuries resulting from such acts would be physical, and the Act does not cover occurrences which re-suit in exclusively non-physical injury. W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (385 SE2d 106) (1989). Although there might be some psychic disability resulting from the purely psychological injury when slander or intentional infliction of emotional distress occurs, this is outside the confines of the Act. Williams v. ARA Environmental Svcs., 175 Ga. App. 661 (334 SE2d 192) (1985). As in the employee versus employer malicious prosecution case of Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154 (404 SE2d 327) (1991), the Workers Compensation Act is simply not involved. Bryant v. Wal-Mart Stores, 203 Ga. App. 770 (417 SE2d 688) (1992), involved false imprisonment as the cause of action, which two judges of the court held came within the purview of the Act, so that even the employee’s nonphysical injuries could not be redressed by a tort action. The judge who concurred specially viewed a claim of false imprisonment which involves only non-physical injuries as not being barred by the Act. As he pointed out, “to prevail on a false imprisonment claim, one does not have to show either physical or mental harm but only wrongful detention.” Id. at 774. He quotes Larson, with whom I agree:

Decided July 2, 1993 —

Reconsideration denied July 28, 1993 —

Joe H. Thalgott, for appellant.

Anderson, Walker & Reichert, Robert A. B. Reichert, for appellees.

“ ‘If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort.’ 2A Larson, The Law of Workmen’s Compensation, § 68.34 (a), at 13-117 (1990). See also id. at § 68.31.” Bryant, supra at 775. Plaintiff’s claim in Bryant involved physical injury and death as well as deprivation of liberty, so the concurring judge agreed that the suit was barred by the exclusivity provision of the Workers’ Compensation Act.

In this case, the nature of the claims involve only non-physical injury, and plaintiff of course alleges such, so her causes of action are not barred by the Act.

I note that the majority opinion refers to chest pains. I find no evidence of such, but if there is any, they would be regarded not as physical injury but rather as originating in psychic causes. See Williams, supra.


author: Pope, Chief Judge.

text:
    A93A0643.
    CAVEN v. WAREHOUSE HOME FURNISHINGS DISTRIBUTORS, INC.
    (434 SE2d 532)
   Pope, Chief Judge.

Plaintiff/appellant Jill Caven brought this action against defendant/appellee Warehouse Home Furnishings Distributors, Inc., d/b/a Farmers Furniture, seeking to recover damages for personal injuries she received when she slipped and fell on the sidewalk adjacent to defendant’s Warner Robins store. The trial court granted defendant’s motion for summary judgment, and plaintiff appeals.

Plaintiff argues the trial court improperly shifted the burden of proof in granting summary judgment to defendant. “ ‘To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. (Cit.) A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).’ Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Jackson v. Wal-Mart Stores, 206 Ga. App. 165 (1) (424 SE2d 845) (1992).

Plaintiff testified via deposition that she went to' defendant’s store to look at a dinette set. It had been raining all day. Plaintiff parked her car in front of the store and walked across the concrete sidewalk in front of the store to the store entrance. She stayed in the store for about 20 or 30 minutes and then exited the store and, traversing the same path she had taken while entering the store, walked across the sidewalk towards her car. Plaintiff testified it was raining steadily at the time she left the store and she was walking “hurriedly” to get out of the rain. Plaintiff was wearing “tennis shoes” and a jogging type suit but did not have an umbrella or raincoat. According to plaintiff, her foot slipped as she started to step off the sidewalk onto the parking lot and she fell back on the sidewalk, breaking her leg and injuring her hand. Plaintiff also testified that the reason she fell was because the concrete sidewalk was slick.

Plaintiff argues that the trial court erred in granting summary judgment to defendant in this case because the evidence showed more than that the plaintiff slipped merely because it was raining and the sidewalk was wet; rather, plaintiff contends the evidence shows she fell because the sidewalk in this case was “inherently dangerous and unreasonably slippery” because the sidewalk had been painted, at defendant’s request, with concrete stain. The record shows that at the time the building was constructed the sidewalk had been coated with two coats of H & C concrete stain. The building contractor testified that the stain had been applied at the request of defendant for the purpose of covering some spots on the sidewalk, and that the particular stain he applied had been recommended by employees of the paint store where lie purchased the stain after he explained his intended use for the stain.

In Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980) our Supreme Court held that a plaintiff seeking to prove a slip and fall because of slippery wax, oil or other finish placed on defendant’s floor, must at a minimum, show that the defendant was negligent either in the material he used in treating the floor or in the application of the finish. See also Edmunds v. Copeland, 197 Ga. App. 292, 293 (398 SE2d 280) (1990). Applying that reasoning to the case at hand, plaintiff in this case must show that the finish placed on defendant’s sidewalk was either unsuitable for that purpose or that the material was negligently applied to the sidewalk. Our review of the record in this case shows plaintiff offered no evidence that the concrete stain used on the sidewalk was not a proper substance to be placed on such a surface, or even that another material or finish would have been more appropriate. Cf. Barlow v. Brant, 206 Ga. App. 313 (425 SE2d 309) (1992). Rather, the only evidence of record as to this issue establishes exactly the contrary. In addition to testifying that the stain was recommended specifically for the purpose of placing it on the concrete sidewalk, the building contractor also testified that he contacted the architect in charge of the project and informed him he was applying H & C concrete stain on the sidewalk and that the architect approved the use of the stain. The evidence also shows the project was inspected by both the architect and the city building inspector and that it was approved by both individuals. Moreover, no allegations have been made and nothing in the record suggests that the stain was improperly applied. Cf. Artesiano v. K-Mart Corp., 184 Ga. App. 895 (1) (363 SE2d 177) (1987).

Plaintiff points, however, to deposition testimony showing the painted concrete sidewalk was more slippery when wet than the unpainted concrete parking lot, and that several of defendant’s customers had reported to a former employee that the sidewalk was slippery when wet. However, “installation of an accepted material [does not constitute] negligence simply because it becomes slippery when wet. There is scarcely any material that might be used in construction that isn’t made somewhat slippery by the presence of water. That is a matter of common knowledge, and, since it is, it behooves us all to use a measure of precaution in walking upon wet surfaces. ‘It is common knowledge that people fall on the best of sidewalks and floors.’ [Cit.]” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 172 (1) (138 SE2d 77) (1964). Moreover, this is not a case where the finish on the sidewalk rendered it so slippery when wet that the owner’s knowledge of that fact, without more, would be sufficient to establish the owner’s liability. To the contrary the record shows plaintiff did not notice anything hazardous or dangerous about the wet sidewalk when she first traversed it on her way into defendant’s store, as demonstrated by the fact that plaintiff was walking “hurriedly” across the sidewalk when she fell. Cf. Spivey v. Bd. of Ed. of Savannah, 194 Ga. App. 726 (391 SE2d 783) (1990) (in which plaintiff realized the steps on which she fell were slippery when she ascended them, but then fell while descending the steps despite her efforts to be careful).

Decided July 12, 1993 —

Reconsideration denied July 28, 1993 —

Rand & Ezor, Samuel S. Olens, Richard Kopelman, J. William Trunnell, Jr., for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, Lisa M. Edwards, for appellee.

The trial court’s grant of summary judgment to defendant in this case is affirmed.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


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

text:
    A93A0683.
    COBB v. THE STATE.
    (434 SE2d 513)
   Birdsong, Presiding Judge.

Appellant William Cobb was convicted of several counts of child molestation and incest, involving his daughter and niece. He contends he was erroneously denied a new trial and was denied effective assistance of trial counsel. He enumerates more than 20 additional errors in the trial. Held:

1. In arguing to sustain the conviction, the State relies, as citation of authority, on a newspaper publication. Rule 11 (c) of this court requires citation of cases by “volume and page of the Official Report (Harrison or Darby).” This citation of a newspaper publication in violation of court rules subjects the offending party subject to sanctions. As to appellants, see Rule 15 (c) (2). An appellee risks being held in contempt (Rule 7) and any argument based on a citation of authority from a newspaper or other non-official publication as provided in Rule 11, shall be disregarded.

2. Evidence of alleged “similar transactions” was admitted without a prior hearing on admissibility as required by Uniform Superior Court Rule 31.1, and by Williams v. State, 261 Ga. 640, 641 (409 SE2d 649). This was error. Failure to hold the required hearing “raises a substantial possibility that the jury could have settled upon the guilt of the defendant based solely upon evidence of a large number of similar transactions, and before hearing a single witness to the indicted offenses.” Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423). See also Harmon v. State, 259 Ga. 444 (2) (383 SE2d 874); Minter v. State, 258 Ga. 629, 630 (373 SE2d 359); Preston v. State, 257 Ga. 42, 45 (354 SE2d 135).

3. The State introduced evidence of criminal molestation acts against others by other males, including appellant’s father. This evidence was irrelevant and prejudicial as to appellant, for it served only to imply his guilt by association. The fact that trial counsel in some instances failed to object to such evidence does not excuse the error or the harm caused, in the face of the claim of ineffective assistance of trial counsel. It is highly probable this injection of irrelevant, prejudicial evidence did contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

4. The trial court erroneously and over objection allowed the State to ask appellant’s daughter whether she had heard her brothers tell her mother what appellant had done to them, to which the victim responded that she had. She was further drawn to say she had heard her brothers tell her mother that appellant had “messed” with them, and that her mother had repeated to the victim that one brother had told the mother appellant sodomized him. This evidence was hearsay and double hearsay. Assuming OCGA § 24-3-16 permits evidence of statements made by children other than the victim of the crime alleged, this evidence did not fall within the exception granted at OCGA § 24-3-16, because the brothers were not available to testify. See Rayburn v. State, 194 Ga. App. 676 (391 SE2d 780), cert. den., 498 U. S. 969 (111 SC 434, 112 LE2d 417).

5. Moreover, the evidence as to appellant’s alleged molestation of his sons was irrelevant to this case. If it might have been theoretically admissible as evidence of similar transactions, it was hearsay, for the boys did not testify and appellant was denied the right of confrontation. See Eberhardt v. State, 257 Ga. 420 (359 SE2d 908), cert. den., 484 U. S. 1069 (198 SC 1036, 98 LE2d 999). The trial court erred in ruling that this hearsay evidence was admissible because the State gave notice of it to appellant. This evidence was extremely prejudicial and it is highly probable that it contributed to the verdict. Johnson, supra.

6. The court erred in allowing the State to elicit from appellant’s niece irrelevant and prejudicial evidence as to sexual acts committed by appellant’s sons, as follows: “Q. You remember back . . . in June of 1986 and December of 1985 . . . and let’s see, it was two of the boys in the family. . . . They had done something to you sexually back then, hadn’t they? A. I don’t remember. Q. What did [the boys] do to you, did they ever touch you? A. No, I don’t remember. Q. Come on, now. Your mind is not that blank, what had they done to you? [Objection to repetitiveness; overruled.] Q. They can’t get you in trouble, come on and tell us what the two boys did to you that’s documented? [Objection to statement about documentation; sustained.] Q. What did [the boys] do to you, back in December of 1985 and June of 1986? [Objection overruled.] Q. Tell us what they did, you need to answer, we’re going to stay here until you answer; what did they do? A. I don’t remember. . . . Q. You do remember what [the boys] did to you, don’t you? A. No. Q. What? A. No. Q. You . . . don’t remember what they did to you. Did you use to have dreams . . . about [appellant], did you have dreams about him at night time, scary dreams? A. No. Q. You didn’t? A. No. Q. You didn’t have dreams where you heard his voice and it really scared you? [Objection to relevance; overruled.] Q. You remember, that, Hon? A. No. Q. Do you remember anything? A. No.”

This line of questioning, centered upon what appellant’s sons allegedly did, was irrelevant and highly prejudicial. There is a high probability it affected the verdict, particularly in combination with the other irrelevant and prejudicial evidence. Johnson, supra. Its prejudicial nature was not cured by the witness’ negative answers, for it was an attempt to introduce evidence by the questions themselves, and to challenge the witness’ truthfulness based on her fear of harm from appellant’s sons relative to their alleged abuse of her.

7. The trial court erred in allowing the State, over objection, to cross-examine appellant’s son in detail as to sexual contact the boy had with his cousin, one of the victims in this case. This questioning was not relevant to appellant’s guilt of the crimes charged, nor was it probative for impeachment, since the boy did not deny his sister had generally told him about things appellant had done to her. The questioning was highly prejudicial and probably did contribute to the verdict. Johnson, supra.

8. The evidence just referred to, where appellant’s son testified his sister had told him about things appellant had done to her, was not admissible under OCGA § 24-3-16, as it was entirely lacking in indicia of reliability. See Rayburn, supra.

9. It is impossible to determine the sufficiency of the evidence to sustain the verdict, in view of the substantial injection of irrelevant, prejudicial evidence in the case, by which the State attempted to show that sexual crimes were a frequent occurrence in appellant’s family, thus to prove appellant’s guilt by association. The denial of a new trial on grounds of irrelevant and prejudicial evidence infecting the verdict was error. We find it unnecessary to examine appellant’s remaining enumerations of error, as we are certain the State and trial court will correct or avoid any such alleged errors or deficiencies in the new trial.

Judgment reversed.

Pope, C. J., concurs specially. Andrews, J., concurs in judgment only.

Pope, Chief Judge,

concurring specially.

While I agree defendant’s conviction should be reversed I write separately because my analysis of this case differs from the majority opinion. I concur fully in Divisions 6 and 7 of the majority opinion.

1. Division 1 of this opinion highlights a problem with Court of Appeals Rule 11 (c). That rule provides: “All citations of cases, whenever and wherever they shall appear, shall be by name of the case as well as by volume and page of the Official Report (Harrison or Darby).” The rule does not instruct parties how they should cite to cases that do not yet appear in the Official Report. When a decision does not yet appear in the Official Report, parties should cite the decision as a slip opinion and include the case number and date of decision for easy reference by this court.

The State cited to the Fulton Daily Report for a decision issued in September 8, 1992. The State’s brief was filed on February 22, 1993. The Georgia Advance Sheets containing the decision in question was issued on January 28, 1993. Thus, the Official Report was available for this particular decision approximately one month before the State’s brief was filed.

2. As this court recently held in Riddle v. State, 208 Ga. App. 8 (430 SE2d 153) (1993), before any similar transaction evidence is admissible at trial a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). As the requisite hearing was not conducted in this case, it is not necessary to specifically address the other bases for excluding similar transaction evidence discussed in Divisions 3, 4 and 5 of the majority opinion.

3. I do not agree with the majority’s conclusion that the circumstances surrounding the alleged victim’s statement to her brother about what defendant did to her do not provide sufficient indicia of reliability for the statement to be admitted under the Child Hearsay Statute.

Decided July 8, 1993 —

Reconsideration denied July 28, 1993 —

Hatcher, Johnson & Meaney, James A. Meaney III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane Palumbo, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.


text:
    A93A0728.
    CAGLE et al. v. AMEAGLE CONTRACTORS, INC.
    (434 SE2d 546)
   Cooper, Judge.

Appellants, Mr. and Mrs. Cagle and Mrs. Cagle on behalf of her incompetent adult son, filed a lawsuit against appellee to recover for injuries they received in a rear-end collision by appellee’s truck. The trial court granted appellee’s motion for a directed verdict at the conclusion of appellants’ case, and this appeal followed.

At trial, appellants testified that while stopped at a red light, their pickup truck was struck in the rear by a Mack truck owned by appellee. Appellants were not able to say how the accident occurred, but Mr. Cagle testified that immediately prior to the collision he heard “brakes slamming.” No other evidence was offered about how the collision occurred.

“ ‘Negligence is not to be presumed, but is a matter for affirmative proof. (Cit.) In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. (Cit.)’ [Cit.]” Bell v. Leatherwood, 206 Ga. App. 550, 551 (425 SE2d 679) (1992). “Rear-end collisions are no exception to the rule of law that there is no absolute duty upon the following driver to avoid a collision, so that where no more appears than that there has been such a collision, with no facts proven from which an inference of negligence can be drawn, the plaintiff has failed to carry the burden of proof. [Cit.]” Robertson v. Jackson, 123 Ga. App. 623 (181 SE2d 905) (1971). However, “[t]he general rule is that where the plaintiff driver is forced by traffic or traffic lights ahead to slow or stop, and the defendant who hits the lead car contends that he was not guilty of negligence, the question is for the jury, but such evidence is in and of itself, sufficient to sustain the inference of negligence on the part of the defendant if the jury believes such to have been the fact, and if other evidence does not demand a contrary conclusion.” Robertson, supra at 624. Moreover, “[a] directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. OCGA § 9-11-50 (a); [Cits.]” Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

Decided July 13, 1993 —

Reconsideration denied July 28, 1993 —

John L. Hammaker, for appellants.

D. Jeffrey Grate, Law Offices of Richard W. Littlefield, Jr., Mary Pappas, for appellee.

Mr. Cagle testified that, while stopped at the red light, he heard the sound of slamming brakes immediately prior to the collision. We conclude that this evidence, albeit slight, is sufficient to raise an inference of negligence on the part of appellee. Moreover, we believe that if the jury had been allowed to decide the issue of liability and returned a verdict in favor of appellants, the evidence would have sustained that verdict. Consequently, we hold that the trial court invaded the province of the jury in directing a verdict in favor of appellee. See Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25) (1976).

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A93A0736.
    SEPARK v. CASWELL BUILDERS, INC.
    (434 SE2d 502)
   Birdsong, Presiding Judge.

W. Allen Separk appeals from a judgment, based upon a jury verdict, for Caswell Builders, Inc., for breach of a contract to purchase a house and lot. The record shows the parties agreed Caswell Builders would construct a house for Separk and that after completion of the house, Caswell Builders would convey the house and lot to Separk. The contract also provided that time was of the essence.

Through various modifications of the contract, the contract price was increased and closing date was extended. Finally, although the contract provided that the closing would be on July 17, 1989, for $424,000, the closing did not take place as specified. Ultimately, the parties could not agree to further modifications of the contract, and after Separk refused a demand to close on a certain date, Caswell Builders sold the house to a third party.

Subsequently, Caswell Builders sued Separk for the difference between the price Separk agreed to pay and the price for which the house sold; after a jury trial, a verdict for $13,750 was returned.

Separk contends that the trial court erred by failing to give a requested charge on construction of the contract, by giving several charges requested by Caswell Builders, and by denying his motion for a directed verdict. He also contends the verdict is not supported by the evidence and that the damages are excessive. Held:

1. Separk’s first enumeration of error contends the verdict is contrary to the law of contracts because there was no contract between the parties. Separk’s contention is based on the theory that when there is a time of the essence clause, the contract expires when the sale does not close on the date specified. This contention is without merit. There was no expiration date in the contract and no clause imposing a condition of closing by the date specified. Instead, these contract provisions merely bound the parties to perform certain action by the dates specified or the contract would be breached. See OCGA § 13-1-7 (a). The remedy for a party aggrieved by the other party’s non-performance is to seek damages for the breach. OCGA § 13-6-1. As there was a contract between the parties, Separk’s argument based upon the absence of a contract is misplaced. Further, Separk’s argument raises evidentiary issues which cannot be considered, as they are beyond the scope of the enumeration. Enumerations of error cannot be enlarged to include issues not alleged therein. Thomason v. Times-Journal, 190 Ga. App. 601, 604 (379 SE2d 551).

2. Separk’s second enumeration contends the damages awarded exceeded the damages authorized by the evidence. The proper measure of damages was the difference between the contract price and market value of the property on the day of the breach. Quigley v. Jones, 255 Ga. 33 (334 SE2d 664); Southeastern Land Fund v. Real Estate World, 237 Ga. 227 (227 SE2d 340). As the testimony established a possible range of damages up to $30,000, the $13,750 damages were within the range authorized. OCGA § 13-6-4; Thompson Enterprises v. Coskrey, 168 Ga. App. 181, 186 (308 SE2d 399). Further, Separk’s argument concerning liquidated damages cannot be considered as this argument is beyond the scope of the enumeration of error. Thomason v. Times-Journal, supra.

3. Separk next contends the trial court erred by refusing to give a charge on construction of contracts. As construction of contracts is a question of law for the court (OCGA § 13-2-1), there was no error in refusing this charge.

4. Separk also contends the trial court erred by giving the following charge: “I charge you that if you find that after the expiration of the specified closing date the defendant continued to act as if the contract was not at an end, then you may find that the defendant waived any right to insist upon strict compliance with the closing date set forth in the contract as amended.” He contends this was an erroneous statement of the law and constituted a comment on the evidence. See OCGA § 9-10-7. Any fair reading of the charge shows that Separk’s contention that the charge was a comment on the evidence is without merit. The charge is phrased in terms of what the jury would be authorized to conclude if the jury found certain facts, and thus is not a comment upon what has been proven. See Trull v. State, 221 Ga. 442, 443 (145 SE2d 242). Further, Separk’s contention that the doctrine of waiver did not apply is without merit for the reasons stated in Division 1.

5. The sixth enumeration of error contends that the trial court erred by charging the jury: “I charge you that if time is of the essence of a contract, it may be waived and subsequent conduct of the obligor may have that effect.” This contention, based on the argument that the doctrine of waiver applies only in cases in which specific performance is sought, is without merit. Ferris v. Hill, 172 Ga. App. 599, 600 (323 SE2d 895).

6. Separk further contends the trial court erred by charging that “if you find that changes and additions requested by a party delay construction so that the sale could not be closed on the scheduled closing date, then you may find that the party’s conduct caused the non-performance and may enforce the terms of the contract, notwithstanding the expiration of the closing date” because such a charge was an erroneous statement of the law. These arguments are without merit for the reasons set forth in Divisions 1, 4, and 5.

7. Separk also contends the verdict is not supported by the evidence. “[R]e-arguing of the evidence, upon which the jury has already passed, provides no basis for an appeal. The entire question of fact, and particularly the weight and preponderance of the evidence, are for the jury. On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777).” J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (380 SE2d 282). There is evidence to support the verdict.

8. Finally, Separk contends the trial court erred by denying his motion for a directed verdict. In determining whether the trial court erred by denying a motion for a directed verdict, this court reviews and resolves the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict is not proper unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). As there is evidence to support the verdict for appellee, it cannot possibly be said the evidence demanded a verdict for appellant.

Decided July 6, 1993 —

Reconsideration denied July 28, 1993 —

Adele L. Grubbs, Amelia G. Pray, for appellant.

Neely & Player, Lewis E. Hassett, Karen E. Cooper, Robert E. Garrison, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0782.
    THRASHER v. COX ENTERPRISES, INC. et al.
    (434 SE2d 497)
   McMurray, Presiding Judge.

Corlis Thrasher (plaintiff) filed a defamation action against Cox Enterprises, Inc., Hyde Post and Rebecca Perl (defendants), alleging defendants published a newspaper article entitled, “ ‘A Close Look at a Hidden Danger . . . Often Symptom-Less Chlamydia Threatens the Sexually Active,” which falsely implies that plaintiff is scourged with the infectious disease chlamydia as a result of promiscuous conduct. Defendants admitted publication of the above article, but denied liability and moved for summary judgment.

The trial court correctly found that the article implies that plaintiff contracted the sexually transmitted disease chlamydia. However, the trial court granted summary judgment to defendants based on the conclusion “that plaintiff cannot sustain her burden to prove the falsity of the statements.” This appeal followed. Held:

“While the truth of the charge made may always be proved in justification, Code Ann. § 105-708 [now OCGA § 51-5-6], nevertheless, truthfulness is a question of fact for the jury. Lester v. Trust Co. of Ga., 144 Ga. App. 526, 528 (241 SE2d 633) (1978).” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3) (278 SE2d 689). In the case sub judice, two physicians who treated plaintiff for problems associated with infertility and conception testified that plaintiff was also treated for an unidentifiable bacterial infection. However, neither physician testified that the infection was chlamydia or that they informed defendant Perl, the author of the newspaper article, that plaintiff had been infected with chlamydia. Further, plaintiff testified that she did not inform defendant Perl that she had been infected with chlamydia and that defendant Perl duped her into an interview by informing her that the investigation was for a story on infertility and that plaintiff and her husband would be characterized as a wholesome couple, successful in their quest for a baby. Plaintiff further testified that defendant Perl never informed her that the subject of the article would be sexually transmitted diseases and infertility associated with the infectious disease chlamydia. In fact, plaintiff testified that defendant Perl never revealed the title or substance of the article and that, upon plaintiff’s inquiry before publication, defendant Perl read a benign portion of the article which led plaintiff to believe that defendant Perl’s earlier representation regarding the subject of the article was true. These circumstances not only draw into question the truthfulness of the characterization of plaintiff as a promiscuous woman with the infectious disease chlamydia, they raise genuine issues of material fact as to defendants’ reckless disregard for the truth in so portraying plaintiff. Stalvey v. Atlanta Business Chronicle, 202 Ga. App. 597, 600 (2) (414 SE2d 898). Consequently, the trial court erred in granting defendants’ motion for summary judgment. “See Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234), where it was held that genuine issues of material fact remained as to ‘actual malice’ where the defendant disregarded opportunities for having or obtaining, from objective sources, a knowledge of the true facts prior to publication.” Stalvey v. Atlanta Business Chronicle, 202 Ga. App. 597, 600 (2), supra.

Decided June 29, 1993 —

Reconsideration denied July 28, 1993 —

Walbert & Hermann, Paul D. Hermann, William K. Day, William J. Cobb, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, for appellees.

Judgment reversed.

Cooper, J., concurs. Beasley, P. J., concurs in the judgment only.

       Plaintiff alleges that she is a private person and that the article was published with knowledge of its falsity or with reckless disregard for its truth. See OCGA § 51-5-2.

       Although there is evidence that defendant Perl duped plaintiff into an interview by misrepresentation and that defendant Perl exceeded the scope of authority conferred by plaintiff, the trial court did not rule on any issue relating to fraudulent inducement or invasion of privacy, stating in an amendment to the order granting summary judgment that “ ‘defendants’ motion for summary judgment is granted as to all issues raised in plaintiff’s complaint for libel.’ ” This ruling is apparently based on the lack of allegation or claim in plaintiff’s complaint relating to fraudulent inducement or invasion of privacy.


text:
    A93A0823.
    TRAVELERS INSURANCE COMPANY v. SOUTHERN ELECTRIC, INC.
    (434 SE2d 507)
   Cooper, Judge.

Appellant, the workers’ compensation carrier of a statutory employer under OCGA § 34-9-8 (a), brought this action pursuant to OCGA § 34-9-8 (b) to recover payments made to and on behalf of appellee’s injured employee. The trial court granted summary judgment for appellee, ruling that appellant was not entitled to indemnification because appellant did not insist that the injured employee pursue a formal claim against appellee before it provided coverage.

Viewing the record in a light most favorable to appellant as the nonmovant on a motion for summary judgment, it appears that LCP Enterprises, Inc. (“LCP”), appellant’s insured, was general contractor on a project. Pursuant to an agreement between LCP and appellee, appellee was to perform the electrical work on the project. When asked about workers’ compensation coverage, appellee represented that it had its own; thus, LCP made no deductions for workers’ compensation from payments made to appellee prior to the accident involved in this case. One of appellee’s workers was seriously injured in an accident that was undisputedly work related. Appellant investigated the accident and learned that, despite appellee’s continued representations to the contrary, appellee had no workers’ compensation insurance. Appellee was aware of the injury and was aware of and participated in appellant’s investigation. Based on its investigation and awareness that appellee had no insurance, appellant approved coverage and began providing benefits, even though the injured worker did not first institute proceedings against appellee. Appellant then brought this suit against appellee for indemnification.

1. Appellant argues that the trial court erred in ruling that its action for indemnification was barred by the worker’s failure to pursue a formal claim against appellee. A general contractor on a project is liable for compensation to an employee of its subcontractor injured in the course of his work on the project. OCGA § 34-9-8 (a). However, the general contractor who pays such compensation is then entitled to recover the amount paid from the immediate employer, the sub-contractor. OCGA § 34-9-8 (b). Moreover, “[e]very claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer.” OCGA § 34-9-8 (c). Appellee asserts that the language quoted from subsection (c) “clearly” establishes a condition precedent to the general contractor’s right to recover under subsection (b). We do not agree that (b) and (c) are so intertwined that the language of (c) clearly requires the institution of a formal claim against the immediate employer before the general contractor is entitled to recover under (b); nor do we think the language of (c) should be interpreted to create such a condition precedent. “ ‘The purpose of (OCGA § 34-9-8) is to ensure that employees in construction and other industries are covered by workers’ compensation. . . .’ [Cit.]” Franks v. Avila, 200 Ga. App. 733 (1) (409 SE2d 564) (1991). The section does this by making parties other than the worker’s immediate employer responsible if the immediate employer does not provide coverage. However, it then protects those other parties by providing for indemnification and by stating that the worker must seek recovery from his immediate employer first. See McCormick v. Kitchens, 59 Ga. App. 376, 379 (1 SE2d 57) (1939) (institution of formal claim against immediate employer is condition precedent to recovery by claimant against statutory employer). Essentially, appellee invites us to paradoxically turn one of the protections the statute provides the statutory employer into a condition precedent to the availability of the other. We decline this invitation.

The purpose of the Workers’ Compensation Act is to alleviate the suffering of injured workers and their families by providing immediate and certain financial assistance, regardless of whether the injury resulted from the fault of the employer, as long as the injury arose out of and in the course of employment. See Slaten v. Travelers Ins. Co., 197 Ga. 1, 2-3 (28 SE2d 280) (1943); Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277, 288 (9 SE2d 84) (1940). “ ‘(A) liberal construction must be given to effectuate the humane purposes for which the (Workers’ Compensation Act) was enacted.’ [Cit.]” Franks, supra at 734. The humane purpose of ensuring immediate assistance would certainly not be furthered by holding that a statutory employer waives his right to recover from the immediate employer if it provides coverage where liability is clear without insisting that the claimant first institute formal proceedings against the immediate employer. Indeed, in the course of rejecting a statutory employer’s argument that a formal judgment against an uninsured immediate employer was a condition precedent to the statutory employer’s liability, we stated in Franks that: “We can conceive of no reason why an admission on the part of the immediate employer that it has not secured workers’ compensation insurance and lacks the financial ability to pay the award should be considered insufficient to impose a burden of payment on the statutory employer. To require the claimant in such a case to obtain a judgment against his immediate employer and to expend resources attempting to collect it in order to establish his right to compensation from the statutory employer would frustrate the remedial pfirposes of the Act.” Id. at 734.

Appellee contends the institution of a claim against the immediate employer should be required in order to allow the immediate employer to defend the claim before it may be held liable on it. However, it is undisputed that appellee had notice of the accident and the re-suiting injury, was aware of appellant’s investigation of the accident and in fact participated in that investigation. Moreover, appellee points to no defenses to the claim that could even arguably have been raised. At least under these circumstances, appellee’s contention does not convince us that the institution of a formal claim against the immediate employer should be a condition precedent to the statutory employer’s right to indemnification. Accordingly, the trial court erred in granting summary judgment for appellee on this ground.

Decided July 7, 1993 —

Reconsideration denied July 28, 1993 —

Irwin, Bladen, Baker & Russell, Thomas C. MacDiarmid, for appellant.

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Lydia E. Barker, for appellee.

2. Appellee argues that even if the trial court erred in granting summary judgment on the ground discussed in Division 1, the judgment should be affirmed based on principles of equitable estoppel. However, this entire situation is the result of appellee’s misconduct in failing to maintain workers’ compensation coverage and then misrepresenting that it had such coverage. Thus, appellee is in no position to invoke principles of equity in its defense, see OCGA § 23-1-10, and summary judgment based on equitable estoppel would also be inappropriate.

Judgment reversed.

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


text:
    A93A0838.
    MARTIN v. THE STATE.
    (434 SE2d 534)
   Pope, Chief Judge.

Defendant Marvin Martin was convicted of two counts of armed robbery and one count of kidnapping. He appeals following the denial of his motion and amended motions for new trial.

1. Defendant challenges the sufficiency of the evidence to convict him of the armed robbery of James Hamm, arguing that his conviction for that offense was based solely on the uncorroborated testimony of an alleged accomplice. As to this issue, the evidence adduced at trial showed that between 11:00 p.m. and midnight on February 21, 1991 James Hamm drove to a C & S Bank on Old National Highway to make a deposit. Hamm exited his car, a red Mazda, and left the motor running. While he was standing at the automatic teller machine, two men approached him, ordered him not to move and drove off in his car. The alleged accomplice, Travis Williams, who was tried with defendant and also convicted on all charges, testified at trial that he was one of the two men who approached Hamm and robbed Hamm of his car. He further testified that he, the defendant, Carl Gilmore and Darrell Boyd had all gone to Old National Highway that night for the purpose of finding a car to steal, and that he and Gilmore approached the victim while defendant and Boyd acted as look-outs. Williams testified that after they stole the car he and Gilmore droye back to where defendant and Boyd were waiting and picked them up.

Darrell Boyd, who was not indicted for any crime in connection with these events, testified at trial that he, along with Williams, Gilmore and the defendant, rode the bus to Old National Highway and then went to Williams’ girl friend’s house, where they stayed for two or three hours. Boyd testified they walked to the bus stop, but then Williams informed Boyd no more buses were running that night. According to Boyd, he and the defendant then walked away from Williams and Gilmore and sat outside a grocery store and talked. Approximately 15 minutes later, Williams and Gilmore drove up in a red car. Boyd testified he and the defendant got into the car, and when Boyd asked Williams about the owner of the car Williams told him that “they stole it.” Williams then drove everyone home in the stolen car.

Williams and defendant’s girl friend testified that Williams and the defendant met the next day at the defendant’s girl friend’s house and discussed stealing another car. The victim of the second armed robbery, Elizabeth McCrary, testified that she first noticed a red Mazda behind her at the intersection of Old Fairburn and Cascade Roads. The car continued to follow her onto Cascade Road, and Mc-Crary noticed that the car was very close behind her. The car continued to get closer to McCrary and finally bumped her rear bumper. McCrary pulled to the side of the road to check on her infant daughter, who was riding in a child seat in the back seat of the car, and the red car pulled in behind her. McCrary said she got out of her car and that Williams and the defendant, who was driving, got out of the red Mazda. McCrary testified that while she and the defendant were talking about the collision, Williams “darted around” to the driver’s side of her car and started to get in. McCrary testified she tried to stop Williams from getting into her car and that he pulled out a gun and told her he would kill her. McCrary then began screaming at Williams to give her her baby out of the car, but Williams drove away with the baby in the car. According to McCrary, defendant then got back in the red Mazda and followed Williams down the road and that a short time later she saw her car, followed by the red Mazda, traveling at a high rate of speed in the opposite direction on Cascade Road. Mc-Crary’s car, with her baby still inside, was recovered six to seven hours later at a gas station located near the apartments where both Williams and defendant lived.

Defendant testified at trial and denied his participation in the crimes charged. Defendant admitted he was in the vicinity of the crime when Hamm’s car was stolen, but stated that he, along with Williams, Gilmore and Boyd, had gone to Old National Highway that night to meet friends. According to defendant, they waited several hours for the friends to arrive and then Williams and Gilmore left and returned a short time later with the red Mazda. Defendant testified that he did not realize the car was stolen until later. Defendant admitted he drove the car the next day, first going with Williams and Gilmore to a party in the car and then leaving the party with Williams to go pick up friends. Defendant testified that while en route to pick up his friends, he accidentally rear-ended McCrary’s car and that Williams surprised him by stealing McCrary’s car while he and McCrary were discussing the accident. Defendant denied he heard McCrary scream for her baby or knew the baby was in the car at the time the car was stolen. Defendant testified that he then drove the red Mazda back to the party, and that Williams returned to the party later that night.

“ ‘In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. . . . The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. Allen v. State, 215 Ga. 455 (111 SE2d 70) (1959). “However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (Cit.)” Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).’ Castell v. State, 250 Ga. 776, 778 (1c), 780 (301 SE2d 234) [(1983)].” Brown v. State, 199 Ga. App. 18, 21 (4) (404 SE2d 154) (1991). We believe the accomplice’s testimony was sufficiently corroborated in this case. Defendant was admittedly in the vicinity when Hamm’s car was stolen, and the jury was authorized to disbelieve his testimony that he waited outside for several hours on a winter evening to meet unidentified friends. Moreover, defendant drove Williams and Gilmore to a party in the car the next day, and was driving the car both before and after the second armed robbery was committed. We conclude that the evidence adduced at trial, although not overwhelming, was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the armed robbery of James Hamm. See Belcher v. State, 207 Ga. App. 117 (427 SE2d 88) (1993).

Decided July 12, 1993 —

Reconsideration denied July 28, 1993.

Anna Blitz, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Leonora Grant, Assistant District Attorneys, for appellee.

2. Contrary to defendant’s contentions on appeal, the trial court’s denial of defendant’s motion to sever did not constitute an abuse of discretion under the facts of this case. Murphy v. State, 246 Ga. 626, 629 (2) (273 SE2d 2) (1980); Randolph v. State, 198 Ga. App. 291 (3) (401 SE2d 310) (1991).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Gilmore was also indicted for the armed robbery of James Hamm, but was granted the right to be tried separately from defendant and Williams.


text:
    A93A0854.
    SLATER v. THE STATE.
    (434 SE2d 547)
   Pope, Chief Judge.

Defendant appeals his convictions for one count of burglary and twelve counts of possession of a firearm by a convicted felon, and a portion of his sentence on the burglary conviction. We affirm the convictions but reverse that portion of the sentence imposing restitution as a condition of probation and remand for further proceedings.

1. Defendant was convicted by a jury on the charge of burglary and consented to a bench trial on the possession charges. On appeal, he argues the evidence was insufficient to support the verdicts. The evidence against defendant on the burglary charge was circumstantial and included the fact that goods stolen in the burglary were found in defendant’s automobile only three days after the burglary when the automobile was repossessed by a creditor. Defendant testified and offered an explanation for his possession of the stolen goods which the jury was authorized to find incredible. “This is not a case of ‘unexplained’ possession but rather of explained possession where the explanation is not believed.” Rogers v. State, 185 Ga. App. 211, 213 (363 SE2d 846) (1987).

Defendant argues that even if the evidence showed recent unexplained possession, this evidence was insufficient to support his conviction. We disagree. Recent unexplained possession is probative evidence which must be reviewed along with other evidence in the case to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). This was not a case in which the sole evidence of guilt rests upon the inferences that may be drawn from the recent possession of stolen goods. The evidence also included, among other things, an incriminating statement made by defendant at the time he was arrested, evidence of similar criminal acts and pawn tickets found in defendant’s automobile, from which, in conjunction with evidence that defendant was unable to make his car payment, the jury could conclude defendant committed the burglary in order to pawn the goods for money. “To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” Funderburk v. State, 195 Ga. App. 441, 443 (393 SE2d 727) (1990). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found the evidence excluded every reasonable hypothesis except that of the defendant’s guilt.

Only two of the twelve guns taken in the burglary were found in defendant’s possession. Thus, as to the remaining ten charges of possession of a firearm by a convicted felon, defendant argues the evidence was insufficient to support the conviction because the guns were not found in his immediate possession. Because the evidence viewed in the light most favorable to the verdict shows he committed the burglary in which the guns were stolen, it follows that the defendant took possession of the guns during the burglary. Constructive possession is sufficient to show a violation of the offense of possession of firearm by a convicted felon. Coursey v. State, 196 Ga. App. 135 (1) (395 SE2d 574) (1990). Likewise, we hold that possession of a firearm by a convicted felon may be shown by circumstantial evidence. Just as the circumstantial evidence in this case was sufficient to support the verdict of guilty as to the charge of burglary, it is also sufficient to support the verdict of guilty on those charges of possession of a firearm by a convicted felon in which no direct evidence of possession was presented.

2. Defendant argues the trial court erred in permitting the State to present evidence of two similar transactions concerning the burglary of two other homes. The only objections raised at the pre-trial hearing on the admissibility of this evidence was that the evidence failed to show defendant committed the independent crimes and failed to show a sufficient similarity between the burglary at issue in this case and the independent crimes. In his enumeration of error, defendant raised only the issue of the State’s alleged failure to show defendant committed the independent crimes. In defendant’s brief, however, he argues the State failed to show all three essential elements required by Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), including not only identity of the perpetrator and similarity of the acts but also a proper purpose for introducing the otherwise inadmissible evidence. We need not address defendant’s argument that the State improperly failed to show a legitimate purpose for admitting the evidence of similar independent crimes because Williams provides a ground for reversal only as to objections raised at trial. See Hunter v. State, 202 Ga. App. 195 (3) (413 SE2d 526) (1991). Moreover, where, as here, the similar crimes reveal a common plan, scheme, design or modus operandi, a legitimate purpose for proof of the independent crimes is shown as required by Hickey v. State, 202 Ga. App. 636 (415 SE2d 60) (1992).

As to the argument that the evidence did not show a sufficient similarity between the independent crimes and the burglary at issue in this case, defendant did not raise this ground in his enumeration of error and we will not consider a ground for appeal raised for the first time in the brief which was not raised within the enumeration of error. See MacDonald v. MacDonald, 156 Ga. App. 565 (1a) (275 SE2d 142) (1980). Moreover, we find ample evidence of the similarity of the two independent crimes and the crime for which defendant was tried.

As to defendant’s argument that the evidence failed to show defendant committed the two independent burglaries, the evidence was sufficient. Proof beyond a reasonable doubt is not required as to the proof that the defendant was the perpetrator of an independent similar crime and evidence, like that presented in this case, that defendant was in recent possession of property stolen in a burglary is sufficient to raise an inference that defendant was the one who stole the goods. See Hickey v. State, 202 Ga. App. 636.

3. Defendant’s argument that he cannot be convicted of both burglary and possession of a firearm by a convicted felon when the firearm was stolen in the burglary has been decided against him. See Bogan v. State, 177 Ga. App. 614 (340 SE2d 256) (1986).

4. Finally, defendant argues the trial court erred in ordering restitution as a condition of probation without holding a restitution hearing. Actually, the record shows a hearing was held at which evidence concerning restitution was presented. We agree, however, that the trial court did not make the required findings to support its order of restitution. It is not sufficient for the trial judge to consider only the amount of the victim’s damages. Jarrett v. State, 161 Ga. App. 285 (4) (287 SE2d 746) (1982). Pursuant to OCGA § 17-14-10, the court must also consider other factors, including “(1) The present financial condition of the offender and his dependents; [and] (2) The probable future earning capacity of the offender and his dependents. . . .” “Because the record reveals that such factors were not considered, that portion of the sentence imposing restitution is reversed and remanded for hearing in compliance with [OCGA § 17-14-10].” Jarrett v. State, 161 Ga. App. at 287. Pursuant to Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (1985), written findings of fact relating to the factors set forth in OCGA § 17-14-10 should also be made upon remand and rehearing.

Decided July 13, 1993 —

Reconsideration denied July 28, 1993 —

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Although defendant did not contest the amount of restitution ordered by the court at the time it was imposed, contrary to the State’s argument, defendant has not waived his right to complain of the order of restitution on appeal. Unlike the facts in Westmoreland v. State, 192 Ga. App. 173 (2) (384 SE2d 249) (1989), cited by the State in opposition to defendant’s enumeration of error, defendant in this case did not induce error by acquiescing in the prosecutor’s statement that defendant consented to the amount of the award. Instead, this case is governed by Williams v. State, 180 Ga. App. 854 (3) (350 SE2d 837) (1986), in which despite the defendant’s failure to dispute the amount of restitution ordered, the case was remanded for a hearing and written findings of fact because the record did not show the trial court considered those factors set forth in OCGA § 17-14-10 before awarding restitution.

Judgment affirmed except that portion imposing restitution, which is reversed and remanded with direction.

Birdsong, P. J., and Andrews, J., concur.