author: Blackburn, Judge.

text:
    A94A0935.
    NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY v. MERCHANT et al.
    (450 SE2d 425)
   Blackburn, Judge.

We granted the interlocutory application of Northbrook Property & Casualty Insurance Company, automobile liability and workers’ compensation insurance carrier for Norman W. Fries, Inc. d/b/a Claxton Poultry Company (“Claxton”), in this consolidated action to determine Northbrook’s liability for the payment of uninsured motorist benefits for injuries received by four of Claxton’s employees while standing near insured vehicles during a motor vehicle collision.

The record viewed in the light most favorable to the nonmovants shows that Northbrook issued a business automobile policy to Claxton for the policy period of October 1, 1990, to October 1, 1991, and the named insureds under the policy were Claxton Poultry Company, Claxton Poultry Farms, and Norman W. Fries, individually. In addition to the named insureds and Fries’ family members, the policy provided that the definition of an insured also includes “[a]nyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’” For uninsured motorist purposes, “ ‘[occupying’ means in, upon, getting in, on, out or off.”

On March 19, 1991, appellees Larry Merchant, Michael Lynn, Tommy Cox, and Jesse Roberson, all employees of Claxton, were dispatched by Claxton to a highway to assist in the transfer of feed from a tractor trailer bound for Claxton to one of Claxton’s tractor trailers, and drove an insured pickup truck and an insured tractor trailer to the location. While assisting with the transfer of feed using an auger attached to the inoperable vehicle and the insured tractor trailer, the men were injured when an intoxicated driver struck the pickup truck which was parked adjacent to the inoperable tractor trailer for the purpose of illuminating the area. As a result, the pickup truck propelled forward and struck Merchant, Lynn, Cox, and Roberson who were either standing or kneeling at the rear of the truck. Because their injuries arose out of and in the course of their employment with Claxton, Northbrook paid Cox, Merchant, Roberson, and Lynn workers’ compensation benefits.

1. Northbrook initially asserts that the trial court erred in denying their motion for summary judgment because the employees were not occupying the insured vehicle at the time of the collision. Although the language of the uninsured motorist portion of the policy at issue requires that an individual occupy the covered vehicle for uninsured motorist protection, this provision is in conflict with statutory law. OCGA § 33-7-11 (b) (1) specifically provides that insured persons includes “any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies. ...” As we stated in Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3, 4 (1) (230 SE2d 70) (1976), “[w]here there is a conflict in an insurance policy and the uninsured motorist statute, the statute controls.” (Citations omitted.)

Accordingly, our inquiry must focus on whether the employees were using the insured vehicle at the time that they were injured. This court has adopted a liberal definition of the term “use.” See Ivey v. First of Ga. Ins. Co., 209 Ga. App. 784 (434 SE2d 556) (1993). “Exact definition of the term ‘use’ is elusive, and is not capable of a definition which will leave everyone ‘comfortable.’ Whether or not an injury arose from the ‘use’ of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply ‘remoteness,’ but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being ‘utilized.’ ” (Citations and punctuation omitted.) Booker, supra at 4-5.

In examining the use of the insured vehicle, we must look at the contemplation of the parties in entering into this contract. See id. The contract provides that the vehicle in issue would be used in the business of poultry processing. Hence, it is reasonable to conclude that the vehicle would be used to transport items involved in the processing of poultry and that the vehicles would be loaded and unloaded. Consequently, “[t]he hazards an employee exposes himself to in venturing upon the highway when using the truck for purposes of [transporting commodities] is a situation which the [Uninsured Motorist] Act was designed to cover.” (Citations and punctuation omitted.) Id. at 7. Therefore, we cannot say as a matter of law that Cox, Roberson, Merchant, and Lynn were not insureds as defined by OCGA § 33-7-11 (b) (1). Accordingly, the trial court did not err in denying the motion for summary judgment.

2. Next, Northbrook maintains that even if the injured employees were insured under the policy, it is entitled to a setoff for the workers’ compensation benefits that it has paid for these injuries. In asserting this argument, Northbrook relies upon a provision in the policy which provides that “any amount paid under this insurance for medical expenses, work loss or ‘survivor’s loss’ will be reduced by the amount of benefits an ‘insured’ is entitled to receive for the same elements of loss under any workers’ compensation law.”

Georgia’s legislature and appellate courts have not addressed an insurer’s liability for the payment of uninsured motorist benefits to be offset by an individual’s entitlement to workers’ compensation benefits. However, in Dacosta v. Allstate Ins. Co., 188 Ga. App. 10 (372 SE2d 7) (1988), we held that the enforcement of a Tennessee statute which provided for a setoff of uninsured motorist benefits based upon the payment of workers’ compensation benefits would not frustrate our State’s public policy. In Dacosta, we recognized that the legislature’s purpose in enacting Georgia’s uninsured motorist statute was to protect insureds as to actual losses.

“A policy of insurance which, when construed reasonably and in its entirety, unambiguously and lawfully limits the insurer’s liability, cannot be extended beyond what is fairly within its plain terms.” (Citations and punctuation omitted.) Cincinnati Ins. Co. v. Westbrook, 188 Ga. App. 511, 513 (2) (373 SE2d 386) (1988). The unambiguous terms of the policy at issue provide for the offset of uninsured motorist benefits based upon the workers’ compensation benefits to which the insureds are entitled, and this limitation in liability is not precluded by statute or contrary to the public policy of this State. Accordingly, the trial court erred in denying Northbrook’s motion for summary judgment on this issue. Since the record in this case does not establish with certainty the amount of workers’ compensation benefits Northbrook paid to these employees, it is necessary for the trial court to conduct further proceedings consistent with this holding.

Decided August 26, 1994

Reconsiderations denied November 21, 1994

Adams & Ellis, George L. Lewis, for appellant.

Brennan, Harris & Rominger, G. Mason White, Lissner, Killian, Cunningham & Boyd, Robert P. Killian, Franklin, Taulbee, Rushing & Bunce, Keith A. McIntyre, Dubberly & McGovern, Joseph D. McGovern, for appellees.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A1171.
    THORNTON et al. v. WARE COUNTY HOSPITAL AUTHORITY.
    (450 SE2d 260)
   Smith, Judge.

Rosemary Thornton and her husband filed suit against the Ware County Hospital Authority d/b/a Memorial Hospital; Dr. Robert Carbaaugh, an anesthesiologist; Harold John (Jim) Karew, a nurse anesthetist; and Dr. Charles Whigham, a consulting physician. They sought damages for personal injuries suffered by Mrs. Thornton during her stay at Memorial Hospital for hip surgery, alleging professional malpractice by the individual defendants during and after the induction of anesthesia. The plaintiffs alleged the hospital was liable under the doctrine of respondeat superior for the actions of Carbaaugh, Karew, and Whigham.

After instituting suit, plaintiffs settled their claims against Caarbaugh and Karew and entered into a covenant not to sue them. In that document, plaintiffs also agreed to dismiss Carbaaugh and Karew from this litigation with prejudice, which they did.

In Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202 (421 SE2d 713) (1992) (“Thornton I”), this court reversed the trial court’s grant of the hospital’s motion to dismiss the Thorntons’s complaint against it based upon the absence of an affidavit under OCGA § 9-11-9.1 alleging malpractice by the hospital.

We held in Thornton I, however, that the hospital’s contention it was not liable to plaintiffs under the doctrine of respondeat superior had not been considered by the trial court and therefore could not be reviewed in that appeal. Id. at 204. On remand, the hospital moved for summary judgment on the issue of imputed liability. The trial court granted that motion, and this appeal ensued.

The motion was granted on two grounds. First, the court found that plaintiffs’ claim against the hospital was barred by their prior dismissal with prejudice of all claims against Carbaaugh and Karew. Second, the trial court found that the hospital could not be held liable under the doctrine of respondeat superior because no issue of material fact existed that Carbaaugh, Karew, and Whigham were not agents or employees of the hospital.

1. The Thorntons contend they are not barred from litigating their claim against the hospital because the covenant not to sue Carbaaugh and Karew recited specifically that the settlement with those two defendants was entered into only in partial satisfaction of their claim, and it provided specifically that plaintiffs were not releasing their claims against the hospital and Whigham.

The holding in Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987) abolished in Georgia the venerable rule that the release of one tortfeasor works a discharge of all other joint tortfeasors. It replaced that rule with the common-sense idea that a release discharges only the parties it was intended to release, which intent may be proved by extrinsic evidence. Id. at 59.

In Harris v. Hanna Creative Enterprises, 208 Ga. App. 549, 550 (1) (430 SE2d 846) (1993), this court held that an employer whose liability for the negligent acts of its employee rests only on the doctrine of respondeat superior is not a joint tortfeasor to whom the rule set forth in Posey applies. A claim against such an employer is, therefore, barred by a previous release of the employee. Id. The facts in Harris, however, differed from those in this case in that the document in issue here is a covenant not to sue and not, as in Harris, a release.

Traditionally, prior to Posey, when a plaintiff sued both a principal and his agent and executed a covenant not to sue the agent, that covenant did not extinguish the cause of action against either defendant; it merely prevented the plaintiff from pursuing a remedy against the agent. The plaintiff could still maintain an action against the principal notwithstanding that the principal’s liability rested solely upon the doctrine of respondeat superior. Otis v. Wren Mobile Homes, 111 Ga. App. 649 (143 SE2d 8) (1965).

Posey abolished the distinction between releases and covenants not to sue. Crim v. Jones, 204 Ga. App. 289, 290, n. 1 (419 SE2d 130) (1992). Since Posey does not apply to this case, however, we apply the law as it existed prior to Posey. Under that law, the execution of the covenant not to sue Carbaaugh and Karew does not bar the Thorntons from maintaining their action against the hospital. Otis, supra.

Nor does the dismissal of Carbaaugh and Karew from the action with prejudice impose a bar to further litigation of the claim, as argued by the hospital. The dismissal of an action against a defendant with prejudice operates only as an adjudication of the nonliability of that defendant to the plaintiffs. Rowland v. Vickers, 233 Ga. 67, 68 (209 SE2d 592) (1974). Liability is a compound term embracing factors other than negligence. See generally Harrison v. Feather, 211 Ga. App. 468, 469 (1) (439 SE2d 706) (1993). An adjudication of nonliability, therefore, is not necessarily a definitive adjudication on the issue of negligence; it does not preclude a finding that, the released parties were negligent. Conclusive establishment of the hospital’s liability, however, necessarily depends upon a definitive adjudication of the absence of negligence, and not merely liability, on the part of the doctors. Absent such a definitive adjudication the hospital is not entitled to summary judgment. The fact issue regarding the negligence of the doctors remains to be litigated and adjudicated.

Further, Whigham was not dismissed, and there has been no adjudication regarding his negligence or liability. It is clear, therefore, that no bar exists to plaintiffs’ claims against the hospital arising from imputed liability for Whigham’s actions. The trial court erred in granting the hospital’s motion for summary judgment on the basis of the dismissal of Carbaaugh and Karew.

2. The Thorntons also contend summary judgment in favor of the hospital was erroneous because genuine issues of material fact exist regarding the hospital’s liability for the actions of the doctors and Karew under the theory of ostensible or apparent agency. It is undisputed that the doctors were, in fact, not employees of the hospital. However, in Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987), the Supreme Court held that the doctrine of ostensible agency may be applied, in some circumstances, to hold a hospital liable for the medical malpractice of physicians even when the doctors are not employees of the hospital.

In Brown, the plaintiff alleged that because the hospital held out to the public that the emergency room doctors were its agents, it was barred from denying that they were its agents. Id. at 508. The Supreme Court agreed, noting that in order for the doctrine of apparent agency to be applicable, the hospital must represent or hold out the actors as its agents and the plaintiffs must justifiably rely upon this representation by the hospital. Id. at 508-509.

Although the Thorntons point out that they did not hire or select either the anesthesia staff or Dr. Whigham and believed that the hospital had done so, this is factually incorrect. Carbaaugh and Karew were members of a private anesthesia group who were on call the Sunday on which Mrs. Thornton underwent emergency surgery on her hip. That group did not have a contract with the hospital, nor did the group have the exclusive privilege of providing anesthesia at the hospital. Whigham testified at deposition that Mrs. Thornton’s private attending physician, Dr. Booker, asked him to consult on her case.

The record contains no evidence of any representation or “holding out” by the hospital that either the anesthesia staff or Dr. Whigham were its employees or agents, a crucial element for the application of the doctrine of apparent agency. Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421 (445 SE2d 270) (1994), relied upon by the Thorntons, is distinguished on its facts. Unlike the patient plaintiff in Abdul-Majeed, Mrs. Thornton did have a private physician — her surgeon, Dr. Booker — and she was clearly under his care. Moreover, it is uncommon for patients themselves to choose those who administer anesthesia.

Under the circumstances present in this case, we cannot say that the hospital’s failure to inform Mrs. Thornton explicitly that the members of the anesthesia group were not employees of the hospital is sufficient to support a finding that the hospital “held out” the anesthesia group as its agents. Nor is it sufficient to show justifiable reliance by Mrs. Thornton. Since no evidence exists to create a genuine issue of fact as to this essential element of the plaintiffs’ claim that the hospital is liable under the doctrine of apparent agency, that claim must fail. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Although we have concluded that one of the grounds on which the trial court granted summary judgment to the hospital was erroneous, the other ground is sufficient to support the grant of summary judgment. A trial court’s ruling right for any reason must be affirmed. Turner v. MCI Telecomm. Corp., 203 Ga. App. 71, 76 (416 SE2d 370) (1992).

Decided October 26, 1994

Reconsideration denied November 21, 1994

Sutton & Associates, Berrien L. Sutton, Hallman & Stewart, Ronald W. Hallman, for appellants.

Dillard, Bower & East, Terry A. Dillard, Robert W. Lamb, for appellee.

Judgment affirmed.

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

        Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), modified the Posey rule td provide that only the parties named in the release would be discharged by that instrument. Id. at 186. However, even if otherwise applicable, the opinion in Lackey provided that it applied only to “releases executed after the date of this opinion,” id., and the release in this case was executed before that date.

       Although certiorari was granted in Harris, the writ was subsequently vacated. Harris v. Hanna Creative Enterprises, 263 Ga. 774 (439 SE2d 476) (1994).

       We note that our decision in Hodo v. Basa, 214 Ga. App. 895 (449 SE2d 523) (1994) (dismissal of complaint against employee doctor for failure to file affidavit pursuant to OCGA § 9-11-9.1 precludes further litigation against employer hospital under doctrine of respondeat superior) was based upon an entirely different premise, in that OCGA § 9-11-9.1 and the case law construing it make clear that a dismissal for failure to file a § 9-11-9.1 affidavit is one on the merits of the claim.


text:
    A94A2123.
    SACHA v. COFFEE BUTLER SERVICE, INC. et al.
    (450 SE2d 704)
   Blackburn, Judge.

On June 29, 1993, after litigation extending for nearly eight years, the trial court entered a consent order substantially settling the case. Left unresolved were the questions of the extent to which the appellant, James Sacha, was entitled to prejudgment and postjudgment interest and whether he was due reasonable attorney fees and litigation expenses under OCGA § 9-15-14. The trial court awarded Sacha additional prejudgment and postjudgment interest in the amount of $25,558.51 for the period prior to September 30, 1988 and denied him attorney fees and litigation expenses. The trial court determined that the only interest to which Sacha was entitled after September 30, 1988, was the 6.45 percent earned in the interest-bearing account of its registry.

1. Sacha asserts the trial court erred by failing to award him prejudgment and postjudgment interest earned on monies deposited with the clerk of court from October 1, 1988 through June 29, 1993. Sacha contends OCGA §§ 7-4-2 and 7-4-12 support his position. In response, appellees, Coffee Butler Service, Inc. and Office Coffee Associates I (Coffee Butler), argue that OCGA § 9-11-67 requires the abatement of prejudgment and postjudgment interest on such monies in that they were deposited in compliance with OCGA § 9-11-67.

OCGA § 9-11-67 provides that “[i]n an action in which any part of the relief sought is a judgment for a sum of money ... a party, upon notice to every other, party, and by leave of court, may deposit with the court all or any part of such sum . . . to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security. Where the thing deposited is money, interest thereupon shall abate.”

Absent conformity with OCGA § 9-11-67, sums deposited in the court will not be entitled to the abatement of interest. Gunnin v. Parker, 198 Ga. App. 864, 866 (1) (403 SE2d 822) (1991) (deposit by leave of court essential to entitlement to interest abatement under OCGA § 9-11-67). The trial court’s order of September 14, 1988, pertinently provided “that all efforts to levy and execute on the judgment by the defendant will be stayed and pending collection actions dismissed upon the posting of a bond in the amount of $185,004.05 ... , or the payment of $185,004.05 into the Registry of the Court, to be placed in an interest bearing account agreed upon by the parties; and, as a further condition for the issuance of the stay, plaintiffs are to pay $5,285.83 per month beginning October 1, 1988, into the Registry of the Court pending final resolution of this case.” (Emphasis supplied.)

The deposits here in issue, having been authorized by court order and agreed upon by the parties, were made by leave of court and upon notice to the parties. The requirements of OCGA § 9-11-67 were otherwise satisfied. Accordingly, the trial court properly relieved Coffee Butler of any liability for prejudgment and postjudgment interest on the sums deposited in the court after September 30, 1988.

2. In his second enumeration of error, Sacha contends that four positions taken by Coffee Butler during the course of litigation were without support in law or fact entitling him to attorney fees under OCGA § 9-15-14 (a) and (b). These were Coffee Butler’s: (1) refusal to honor the consulting agreement; (2) first amendment of the original complaint asserting the consulting agreement’s diminished value rather than anticipatory breach; (3) second amendment to the complaint seeking lost profits; and (4) second amendment to the complaint asserting fraud in the inducement with respect to merger.

OCGA § 9-15-14 (a) provides that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Subsection (b), on the other hand, provides that the court may assess reasonable and necessary attorney’s fees and expenses of litigation ... if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. As used in this Code section, ‘lacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious.” “Claims asserted pursuant to either subsection (a) or (b) are to be adjudicated by the trial court without a jury. The standard of review for motions under OCGA § 9-15-14 (a) is the ‘any evidence’ rule, and the standard for review for motions under OCGA § 9-15-14 (b) is the ‘abuse of discretion’ rule.” (Citations and punctuation omitted.) Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 778 (3) (406 SE2d 121) (1991).

Decided October 11, 1994

Reconsideration denied November 21, 1994

Mozley, Finlayson & Loggins, C. David Hailey, Eric T. Johnson, Lawrence B. Domenico, for appellant.

Sacha argues our Supreme Court’s affirmance of the trial court’s grant of summary judgment upon Coffee Butler’s claim of anticipatory breach of contract established a violation of OCGA § 9-15-14 (a). See Coffee Butler Svc. v. Sacha, 258 Ga. 192 (366 SE2d 672) (1988). Likewise, he asserts this court’s affirmance of his summary judgment relative to Coffee Butler’s lost profits claim showed an OCGA § 9-15-14 violation. Yet, such decision was not unanimous on the issue of summary judgment. See Coffee Butler Svc. v. Sacha, 208 Ga. App. 4, 7 (430 SE2d 149) (1993) (“The movant in summary judgment, Sacha, did not by the evidence ‘conclusively eliminate all issues’ as to the claim for lost profits.” (Beasley, P. J., dissenting.)). Neither does an affirmance of summary judgment “amount to a finding, binding on the trial court, that appellees’ case was wholly without merit.” Seckinger v. Holtzendorf, 200 Ga. App. 604, 605 (409 SE2d 76) (1991). Additionally, since “the law requires only slight circumstances to establish fraud and conspiracy,” id. at 606, we cannot here conclude that a justiciable issue of law or fact was not presented or lacked substantial justification with respect to appellees’ claim of fraud.

Finding no evidence of bad faith on the record before us under both standards of review as set forth above, we decline to disturb the trial court in the exercise of its sound discretion with respect to attorney fees.

Judgment affirmed.

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

Gandy, Rice & Sundberg, L. Spencer Gandy, Jr., for appellees.

       The underlying facts in this case are set out in detail in Coffee Butler Svc. v. Sacha, 258 Ga. 192 (366 SE2d 672) (1988) and Coffee Butler Svc. v. Sacha, 208 Ga. App. 4 (430 SE2d 149) (1993).

       Prejudgment interest accrues at the legal rate of seven percent pursuant to OCGA § 7-4-2 and may not be altered by the trial court. See Turner Constr. Co. v. Electrical Distributors, 202 Ga. App. 726, 727 (415 SE2d 325) (1992).

       OCGA § 7-4-12 provides pertinently that “[a]ll judgments . . . shall bear interest upon the principal amount recovered at the rate of 12 percent per year.”


author: Ruffin, Judge.

text:
    A94A1232.
    RANDOLPH COUNTY HOSPITAL AUTHORITY v. JOHNSON.
    (450 SE2d 318)
   Ruffin, Judge.

This appeal arises from the denial of Randolph County Hospital Authority’s (“hospital authority”) motion for summary judgment based on sovereign immunity in a wrongful death action. The trial court held that Art. I, Sec. II, Par. IX of the 1983 Constitution of Georgia does not extend sovereign immunity to a hospital authority because the phrase “the state and all of its departments and agencies,” contained in that provision, does not include state, county, or city authorities; and the contrary decision of this court in Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (404 SE2d 796) (1991), conflicts with the holdings of the Supreme Court in McLucas v. State Bridge Bldg. Auth., 210 Ga. 1, 6 (77 SE2d 531) (1953) and Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 45 (273 SE2d 841) (1981).

On February 2, 1994, this court granted the hospital authority’s application for interlocutory appeal to consider whether the trial court’s judgment conflicted with prior decisions of this court. This appeal was docketed on February 24, 1994. The sole enumeration of error on appeal is that the trial court erred in finding as a matter of law that the hospital authority was not entitled to sovereign immunity under the Georgia Constitution. Four days following the docketing of the appeal, the Supreme Court issued its decision in Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (1) (440 SE2d 195) (1994), addressing the conflicts created by Litterilla.

Thomas established “that a hospital authority is not only not the state or a part , of the state, it is also not the county or a part of the county. In reaching its determination that a hospital authority is entitled to the protection of sovereign immunity, the Court of Appeals in Litterilla relied on the language of OCGA § 31-7-75 which characterizes the activities of a hospital authority as ‘essential governmental functions,’ but such reliance is misplaced. Since a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute, entitled to the protection of sovereign immunity.” Thomas, supra at 42. Accordingly, Thomas is controlling and the denial of the hospital authority’s motion for summary judgment was not erroneous.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided November 21, 1994.

Bowles & Bowles, Jesse G. Bowles III, for appellant.

Andrew Scherffius III, Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Langley & Lee, C. Richard Langley, Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Tisinger, Tisinger, Vance & Greer, Kevin B. Buice, for appellee.


text:
    A94A1272.
    MURPHY v. CONCRETE PLACEMENT SYSTEMS, INC. et al.
    (450 SE2d 312)
   Ruffin, Judge.

Hattie Murphy, as widow, adminstratrix and personal representative of the estate of John Eddie Murphy, appeals from a jury verdict and judgment in favor of the defendants, Concrete Placement Systems, Inc. and S. A. Thenaud (“Thenaud”), a French corporation which manufactures a concrete conveyor unit. Murphy brought a wrongful death action seeking damages for negligent design, strict liability and negligent failure to warn of dangers attendant to the use of Thenaud’s conveyor. Mr. Murphy was electrocuted while operating a concrete truck equipped with a Thenaud conveyor which hit a high voltage power line after Murphy raised the conveyor 30 feet in the air.

The complaint was filed on August 9, 1990, the period for discovery closed on September 12, 1992, and the parties filed a consolidated pre-trial order on September 25, 1992. On November 2, 1992, Mrs. Murphy filed a motion in limine to prohibit Thenaud’s expert witness, David Brown, from testifying because he had not been identified until October 9, 1992 (after the close of discovery and the filing of the pre-trial order), contending the delay in the identification of Brown was greatly prejudicial. Thenaud responded that Mrs. Murphy did not name her own experts until four days prior to the close of discovery and had yet to make them available for deposition.

The motion in limine was denied, and on November 25, 1992, Brown was deposed. When questioned about whether he thought Thenaud should have installed an “insulating section” into the conveyor, Brown stated that in his opinion “this was not practical and it would not be reliable.” Brown was then asked if he had an opinion “as to whether or not it would have been practical to insulate the control panel for the conveyor system on Murphy’s truck,” or “to utilize an insulated control panel on the truck Murphy was operating on the morning he was killed,” and he responded that he had no opinion in that regard one way or the other.

The case was tried on August 23, 24 and 25, 1993. When Brown was scheduled to testify, counsel for Mrs. Murphy made a second motion in limine to prohibit him from “springing” any opinions he might have developed since his deposition in regard to whether the “controls” of Thenaud’s conveyor should have been insulated. The trial court denied the motion but advised Murphy’s attorney that he could question Brown about any differences between his deposition and trial testimony, and Brown was in fact subjected to extensive cross-examination on this issue.

When asked at trial if he had an opinion as to whether or not the Thenaud conveyor was in any way defective or negligently designed, Brown replied that he was not aware of anything defective or unsafe about the equipment and that from the design of the conveyor he did not believe it was possible to electrically insulate the unit or the controls. He further testified that contrary to the testimony of Mrs. Murphy’s expert engineers, he did not believe that if the levers or handles that controlled the conveyor unit had been insulated with fiberglass, it would have reliably prevented this or any similar accident where such a vast amount of electric voltáge was involved.

On appeal the sole enumeration of error is that the trial court abused its discretion in allowing this testimony because Brown’s opinions were not made available before trial or within a reasonable time prior to his testimony. Mrs. Murphy argues that OCGA § 9-11-26 (e) (2) (A) and (B) require a party to amend a discovery response which he knows was incorrect when given, or when he knows the response though correct when given is no longer true, and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment. See Haugabrook v. Waco Fire &c. Ins. Co., 190 Ga. App. 815, 817 (2) (380 SE2d 347) (1989). We disagree.

At trial Brown testified that he both recalled and stood by his deposition answers. Specifically, he testified that the “control panel” was where all the gauges and dials were and that he “had never thought of anybody trying to insulate a control panel before.” However, Brown was never asked during his deposition whether or not the levers or handles of the conveyor unit should have been insulated with fiberglass. Therefore, nothing stated in his deposition needed to be amended prior to trial. Nor can Mrs. Murphy legitimately claim surprise, and it was not error to allow Brown’s testimony. See Kamensky v. Stacey, 134 Ga. App. 530 (1) (215 SE2d 294) (1975). Moreover, “discovery questions should be sufficiently specific to require specific responses, and in so responding the party to whom they are directed is required to go no further than is required in responding fully to the questions asked. [Cit.]” Glennville Hatchery v. Thompson, 164 Ga. App. 819, 825 (6) (298 SE2d 512) (1982). It has been repeatedly held that the appellate courts will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion. Ambassador College v. Goetzke, 244 Ga. 322, 323 (1) (260 SE2d 27) (1979); cert. denied, 444 U. S. 1079 (100 SC 1029, 62 LE2d 762) (1980). We find no such abuse here. Accord City of Monroe v. Jordan, 201 Ga. App. 332, 335 (4) (411 SE2d 511) (1991).

Decided November 21, 1994.

Middleton & Mixson, Michael K. Mixson, Lynda W. Orr, for appellant.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm III, John A. Sherrill, for appellees.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge.

text:
    A94A1363.
    MEREDITH v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY et al.
    (450 SE2d 322)
   Pope, Chief Judge.

Plaintiff Thomas Meredith appeals the trial court’s order granting summary judgment to his uninsured motorist carrier, Nationwide Mutual Fire Insurance Company.

On December 21, 1989, plaintiff was driving a Ford tandem dump truck on Fulton Industrial Boulevard for his employer, Siskey Hauling & Grading Company. Plaintiff claims that on that date an unidentified “John Doe” driver in the lane directly to the right of plaintiff’s truck, without warning or signal, quickly cut in front of plaintiff and caused him to apply his brakes and skid to a sudden stop. It is undisputed that there was no physical contact between plaintiff’s truck and the John Doe vehicle. Plaintiff claims he was injured when another Siskey-owned dump truck, driven by Carl Waites, was unable to stop and subsequently rear-ended plaintiff’s truck.

In his complaint, plaintiff named the unidentified John Doe motorist as a defendant. Additionally, plaintiff served Nationwide as his uninsured motorist carrier. Nationwide answered in its own name and, after discovery, filed a motion for summary judgment contending that plaintiff had failed to produce a corroborating eyewitness to the incident as required by OCGA § 33-7-11 (b) (2). The trial court granted summary judgment to Nationwide, and plaintiff appeals.

Plaintiff contends the trial court erred in granting summary judgment to Nationwide because genuine issues of material fact remain in this case and because plaintiff has complied with the requirements of OCGA § 33-7-11 (b) (2) by submitting the affidavit of a corroborating witness, Carl Waites. We agree and therefore reverse the trial court.

OCGA § 33-7-11 (b) (2) in pertinent part provides that: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. In those cases ... in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” (Emphasis supplied.) We previously have held that the last sentence of OCGA § 33-7-11 (b) (2) requires only “ ‘that (the insured’s) description be corroborated in its material allegation, i.e., implication of the unidentified vehicle (as a causal factor in the underlying occurrence). . . .’ (Emphasis in original.) Hoffman v. Doe, 191 Ga. App. 319, 321 (381 SE2d 546) (1989).” Garrett v. Standard Guaranty Ins. Co., 201 Ga. App. 251, 252 (410 SE2d 806) (1991).

In this case, Carl Waites testified by affidavit as follows: “At the time of the accident I was driving a Siskey Hauling and Grading Company dump truck following a Siskey dump truck driven by Thomas Meredith. . . . Suddenly and without warning, an unidentified and unknown driver swerved into our lane of traffic, directly in front of the vehicle driven by Mr. Meredith, and stopped. Mr. Meredith then turned his vehicle and applied his brakes forcefully in an attempt to avoid hitting the unidentified vehicle. Because Meredith’s vehicle came to a sudden stop directly in front of me, there was no way I could avoid hitting the truck driven by Mr. Meredith. . . . My vehicle rear-ended the truck driven by Mr. Meredith.” Mr. Waites also specifically stated in his affidavit that the accident was caused by the unknown driver’s improper lane change. “This eyewitness testimony would certainly implicate the unidentified vehicle as a causal factor in the underlying occurrence upon which [plaintiff] predicated [his] tort claim against John Doe. It is not required that an eyewitness corroborate each and every detail of the insured’s description. All that is required is an eyewitness’ corroboration of the insured’s contention ‘that the accident was caused by an unknown vehicle.’ Hoffman v. Doe, supra at 321. The eyewitness in the instant case may have failed to corroborate [plaintiff] in some respects and may have actually contradicted [plaintiff] in other respects. Those failures and contradictions would be relevant to the jury’s resolution of the issue of credibility. However, so long as [plaintiff] produced an eyewitness who testified not only to the existence of an unknown car, but who also implicated the unknown car as a causal factor in the underlying occurrence, the evidentiary requirements of OCGA § 33-7-11 (b) (2) were met.” Garrett, 201 Ga. App. at 252.

Decided November 21, 1994.

Lipscomb, Johnson, Ashway & Sleister, Charles G. Haldi, Jr., for appellant.

Murray & Temple, William D. Strickland, John C. McCaffery, for appellees.

We find no merit in Nationwide’s contention that the contradictory testimony rule is applicable in this case. That rule states that “a party’s self-conflicting testimony is to be construed against him.” (Citations and punctuation omitted; emphasis supplied.) Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (388 SE2d 909) (1989). In this case the testimony Nationwide points to is not self-conflicting.

In light of the above, we conclude that plaintiff met the corroborative evidence requirement of OCGA § 33-7-11 (b) (2) and that, therefore, the trial court erred in granting summary judgment to Nationwide.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A1390.
    THOMAS v. STAIRS et al.
    (450 SE2d 326)
   Ruffin, Judge.

Appellant, Daniel Thomas, brought this personal injury action against appellee, Keith Stairs. The jury returned a defense verdict. Thomas appealed, enumerating as error the trial court’s denial of his motion for a new trial and five of the jury charges given by the court, including a charge on sudden emergency.

Stairs testified at trial that he was driving a Lincoln Town Car on a clear day in traffic at approximately 20-30 mph when he noticed a car coming up behind him at a fast rate of speed. He looked at the car for a moment and because it appeared to be approaching quickly, he looked back again one or two times. In the process, he noticed traffic in front of him had stopped very suddenly and he hit his brakes. Stairs testified that as he was slowing down, he felt that he would be able to stop in time and avoid hitting the car in front of him. However, he did hit the car, which in turn hit Thomas’s car. Stairs testified unequivocally that he was responsible for causing the accident and that he had been cited and fined for following too closely.

1. We first consider Thomas’s contention that the trial court erred in giving a charge on sudden emergency.

The court charged as follows: “Ladies and gentlemen, I charge you that an automobile driver who, by the negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes such choice as a person of ordinary prudence placed in such position might make, even though he did not make the wisest choice.” Thomas objected to this charge by arguing that Stairs had placed himself in the position of an emergency and was therefore not entitled to this charge. “While not technically perfect, this language was sufficient to enable a ‘reasonable’ trial judge to understand the charge was objected to on the ground that it was not adjusted to the evidence. . . . [Cit.]” Martini v. Nixon, 185 Ga. App. 328, 329 (2) (364 SE2d 49) (1987).

“ ‘The defense of emergency is not available unless the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.’ [Cit.]” (Emphasis in original.) Thomas v. Shahan, 213 Ga. App. 484, 486 (2) (444 SE2d 851) (1994). The doctrine “requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable. [Cit.]” Barlow v. Veber, 169 Ga. App. 65, 66 (1) (311 SE2d 501) (1983).

We agree with Thomas that the evidence did not support a charge on sudden emergency. To begin with, the circumstances testified to by Stairs did not describe a true emergency with the “sudden peril” contemplated by the doctrine. Stairs had the time to look at the vehicle coming behind him two to three times before he realized traffic had slowed. Nor did Stairs seem to think the situation was particularly perilous as shown by his testimony that he thought he was going to be able to stop in time and avoid hitting the car in front of him.

Moreover, Stairs did not testify that he considered any course of conduct other than braking. “[Application of the sudden emergency doctrine requires that the defendant have a choice of conduct. . . . [Cit.]” Howard v. Jones, 187 Ga. App. 756, 758 (2) (371 SE2d 196) (1988). The facts in Jones are remarkably similar to the instant case. In Jones, there was a three car collision and a defendant driver who was distracted by another car and then unable to avoid colliding with the car in front of him, which in turn hit the plaintiffs car. The court charged on sudden emergency and we reversed. We find here, as we did in Jones, that the charge was given in error because “under the evidence there was ‘no real choice of conduct open to the defendant after he realized the situation which would make the doctrine of emergency applicable, because . . . the defendant did not contend that he had a choice between attempting to stop and attempting to (pass on) . . . [either side].’ ” (Emphasis in original.) Id. at 758-759.

Decided November 21, 1994.

Clifford, Moss & Rothenberg, Robert A. Moss, for appellant.

Fain, Major & Wiley, Thomas E. Brennan, for appellees.

Accordingly, it was error for the trial court to give the sudden emergency charge. The instruction gave the defendant a defense to which he was not entitled, and the error was therefore not harmless.

2. We find Thomas’s remaining enumerations of error to be without merit.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1536.
    SHERIFF’S BEST BUY, INC. v. DAVIS.
    (450 SE2d 319)
   Blackburn, Judge.

The appellee, Mildred Davis, commenced this action against defendant/appellant, Sheriff’s Best Buy, Inc., to recover damages for injuries sustained when she fell in the parking lot of defendant’s store. The trial court denied defendant’s motion for summary judgment and this interlocutory appeal followed.

The record shows that between 5:00 p.m. and 5:30 p.m. on January 13, 1992, Davis tripped and fell in the parking lot of defendant’s store. Davis had just arrived at the store to purchase groceries and it was lightly raining at the time and getting dark. Davis deposed that as she was walking toward the store her foot was caught by some broken pavement which caused her to fall. She stated that she believed she fell when responding to a greeting from the store manager, Ed Elrod.

At her deposition, Davis was unable to locate on photographs the exact location she fell in the parking lot. She did depose, however, that the cracked pavement in one of the photographs was similar to what caused her fall. There is no evidence in the record as to when the photographs were taken, except that they were taken sometime after the fall. There was nothing obstructing Davis’ view of the area which caused her fall, but she did not say that she could have seen the cracked pavement from a standing position. She could not remember exactly where she was looking when she fell, although she thought Elrod had diverted her attention when he called to her.

Davis testified that after the fall she returned to the parking lot with her son to take photographs of the area and the broken pavement was plainly visible at that time. These photographs did not develop.

Decided November 21, 1994.

Gorby & Reeves, Michael J. Gorby, Amanda H. Burri, Blake H. Frye, for appellant.

Timothy P. Healy, for appellee.

Where the party upon whom the burden of proof at trial does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, is construed most strongly against the movant. Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971), overruled on other grounds. This is so, even as to issues upon which the opposing party would have the burden at trial. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813 (168 SE2d 827) (1969).

This case turns upon whether or not Davis exercised reasonable care for her own safety in traversing the parking lot. In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), our Supreme Court held that the plaintiffs explanation as to why he was not looking where he was going as he approached the check-out counter, that being, that he was looking at the cashier to tell him he was ready to check out, created a fact issue for jury determination. “This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.” Id. In the subject case, the store employee spoke to Davis, while in Barentine, there was no communication generated by the store employee, he was simply the focus of Barentine’s attention. If the facts of Barentine establish “some evidence” that Barentine exercised reasonable care for his own safety, then clearly Davis constitutes a much stronger case of such evidence.

The trial court did not err in denying defendant’s motion for summary judgment.

Judgment affirmed.

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


text:
    A94A1562.
    SCOTT v. THE STATE.
    (450 SE2d 456)
   Ruffin, Judge.

Jeffery Scott appeals his conviction for possession of cocaine with intent to distribute.

Scott was arrested after he was observed throwing plastic bags containing cocaine out his car window when confronted by several police officers. At trial, the following exchange took place between the prosecutor and a State’s forensic witness concerning the bags: “Q. Did you have occasion to receive some evidence from Colleen Riley marked Jeffery Scott, or marked with a case number? A. Yes, sir, I have on several occasions. In particular, the case we’re referring to. I did receive some evidence from Colleen. It’s an inter’laboratory transfer.”

After the jury was removed from the courtroom, Scott moved for a mistrial, arguing the statement brought his “prior activity in to the attention of the jury.” The witness explained to the court that he was not specifically referring to Scott and only meant that he received evidence from Colleen Riley on several occasions in a number of cases. The court denied the motion, instructed the witness to explain his answer to the jury, and stated it would give a curative instruction if necessary. At the close of evidence, Scott again moved for a mistrial on the same grounds. The court again denied the motion and Scott refused curative instructions. Although the witness explained his answer, Scott contends the trial court erred in failing to grant his motion for a mistrial on the ground that his character was impermissibly placed into evidence.

“[N]o evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” OCGA § 24-9-20 (b). “When a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b). . . . The decision of whether statements which impermissibly place a defendant’s character in issue are so prejudicial as to warrant a mistrial is for the discretion of the trial court. Appellate courts will look at the relevant circumstances to determine if the trial court abused its discretion in denying the motion for mistrial. Some of the factors and circumstances to be reviewed [by the appellate court] include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” (Citations, punctuation and indention omitted.) Nelson v. State, 204 Ga. App. 409, 410 (2) (419 SE2d 502) (1992).

In this case, the answer given by the witness was capable of more than one interpretation. Although the answer could be interpreted as evidence of Scott’s character, we do not believe it necessarily implied Scott had prior convictions, thereby placing his character in issue. Moreover, any confusion or prejudice created by the answer was remedied by the witnesses’ explanation of the answer. “In light of these factors and all the evidence presented, it is unlikely that the statement affected the jury’s verdict.” Id. We find no error.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided November 21, 1994.

John V. Lloyd, for appellant.

Spencer Lawton, Jr., District Attorney, Jon C. Hope, Assistant District Attorney, for appellee.


text:
    A94A1594.
    LUCAS v. THE STATE.
    (450 SE2d 313)
   Ruffin, Judge.

Otis Lucas was convicted of statutory rape and incest and appeals from the entry of judgment on the conviction and sentence.

The evidence shows that between September 1, 1990, and November 29, 1990, Lucas had sexual intercourse with his thirteen-year-old stepdaughter three times under similar circumstances. In each instance, Lucas sent his wife to the store, while the victim and another young family member remained at home with Lucas. Lucas told the other child not to open the door for anyone and to remain in the living room while the victim was called to join Lucas in the bedroom he shared with his wife, the victim’s mother. Lucas then told the victim to take off her clothes and lie down on the bed. Lucas removed his clothes and had intercourse with the victim. Lucas had been drinking vodka prior to each incident.

The victim told her mother about the third incident, and the mother told the victim to let her know if it happened again. Shortly thereafter, Lucas sent his wife and other adult family members in the home to a junkyard, again leaving the victim and another young family member at home with Lucas. Lucas called the victim to his bedroom, told her to remove her pants, and performed oral sex. When the mother returned, the victim told the mother that Lucas had sex with her. The mother confronted Lucas, he denied having sex with the victim, and the mother took the victim to Grady Hospital for an examination. The examination revealed redness and swelling consistent with oral sex having been performed. The victim was taken into protective custody and interviewed, and Lucas was subsequently arrested.

1. Lucas enumerates as error the admission of the testimony of another stepdaughter as similar transaction evidence. Lucas contends the State failed to establish sufficient similarity between the independent offense and the crime charged.

Lucas’ other stepdaughter testified that between 1985 and 1986, when she was 19 years old, Lucas forced her to have sex with him on numerous occasions against her will. She specifically referred to the first incident in which she alleged that Lucas had been drinking when he violently raped her in his car while returning home from the store. She testified that Lucas raped her a second time in the car and numerous other times in their home, when his wife was away from home.

“ ‘Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.’ [Cit.]” Murphy v. State, 212 Ga. App. 153 (1) (442 SE2d 2) (1994). “ ‘There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.’ [Cit.]” Cantrell v. State, 212 Ga. App. 288, 289 (1) (441 SE2d 879) (1994). “ ‘The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cit.] ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. . . . There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.’ [Cit.]” Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991).

The acts alleged in the instant case and the acts alleged by the other stepdaughter involved similar incestuous sexual contact between Lucas and the victims. They were preceded by Lucas’ drinking and occurred, for the most part, when Lucas’ wife, the victims’ mother, was safely away from the home and Lucas and the victims were virtually alone at home. Thus, we find no error in the trial court’s determination that there was sufficient similarity between the independent incestuous acts alleged by the other stepdaughter and those with which Lucas was charged in the instant case. See Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985).

Lucas also contends that in its instruction to the jury prior to the admission of the similar transaction evidence, the court failed to state the specific purpose for which the evidence was to be considered by the jury. However, the record shows that Lucas raised no objection to the court’s instruction at trial; thus, this contention will not be considered on appeal. “It is ‘well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. (Cits.)’ [Cit.]” Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994).

2. Lucas also contends the trial court erred in admitting the rebuttal testimony of Theresa Battle as her testimony improperly placed his character in issue.

Lucas testified that he tried to be a good father to the victim; that he had been her father for all intents and purposes since she was an infant; that he was the primary disciplinarian; that he had to watch out for the victim constantly; and that he often talked with the victim about boys, sex and teenage pregnancy. Lucas indicated that he had recently become concerned about her adolescent behavior and had stopped her from doing what he characterized as a “nasty dance” with other young girls in their backyard. Lucas explained that he and his wife studied the Bible and would not allow such dancing. Prior to admitting Battle’s testimony, the trial court remarked that Lucas tried to give the jury the impression that he was “a paragon of virtue” with “very high standards, sexual standards.” Thus, the State was allowed to present evidence in rebuttal.

Theresa Battle was present in the Lucas home on the evening the victim was at Grady Hospital with her mother following the last sexual incident with Lucas. Both Lucas and Battle testified that Lucas remained at home, drinking vodka with friends and watching television. However, the testimony of which Lucas complains is Battle’s statement that Lucas offered her $100 to have sex with him and that later that night she interrupted him having sex with another woman to whom he paid $20.

“ ‘In a criminal case the State can not rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence or by his statement to the jury.’ [Cit.] However, [OCGA § 24-9-82] provides: ‘A witness may be impeached by disproving the facts testified to by him.’ Thus, while a criminal defendant is not subject to impeachment by proof of general bad character or prior convictions until he puts his general good character in evidence, he is subject to impeachment the same as any other witness. [Cit.]” Favors v. State, 145 Ga. App. 864, 865 (1) (244 SE2d 902) (1978). Evidence of prior crimes or bad acts can be admitted “where such evidence is necessary and relevant to impeach the defendant’s specific testimony. [Cit.]” Crane v. State, 263 Ga. 518, 519 (1a) (436 SE2d 216) (1993).

Based upon our review of the cold record, we cannot say the trial court erred in admitting Battle’s rebuttal testimony since the trial court had the opportunity to observe Lucas’ live testimony, its determination that Lucas tried to impress the jury that he was a “paragon of virtue” with high sexual standards was supported by the evidence, and Battle’s testimony was relevant rebuttal evidence.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided November 21, 1994.

William C. Puckett, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Ann G. Maseth, Assistant District Attorneys, for appellee.


text:
    A94A1686.
    PERKINS v. THE STATE.
    (450 SE2d 324)
   Ruffin, Judge.

Perkins appeals from his conviction of obstruction of an officer and battery as well as the denial of his motion for new trial. Perkins does not dispute he attacked an assistant district attorney during a motions hearing in a prior case, the act giving rise to the instant case. Rather, Perkins, who is indigent, contends the trial court erred by not granting his motion to appoint a psychiatrist to assist in defending his case.

Before trial, Perkins filed a motion for expert assistance and notice of his intent to raise mental health issues. The court ordered psychiatrist Dr. James S. Cheatham to evaluate Perkins regarding his competency to stand trial and his criminal responsibility or mental capacity at the time of the attack. Dr. Cheatham concluded Perkins “is presently capable of understanding the nature and object of the proceedings against him . . . capable of rendering counsel assistance in providing a proper defense . . . [and] possessed sufficient mental capacity at the time of the acts of which he is charged to distinguish right from wrong in relation to the alleged acts.”

When the case was called for trial, Perkins again requested the court to provide funds for a psychiatrist to assist in his defense. The court ordered Dr. Cheatham to reevaluate Perkins, this time taking into account the impressions of the attorney who represented Perkins at the time of the attack, as well as those of his current attorney. After his second evaluation, Dr. Cheatham concluded Perkins was “presently competent and understanding of the proceedings against him, and to assist counsel in his own defense.”

Although Perkins’ counsel waived any issues with respect to his competency to stand trial, he contends the trial court failed to determine whether his sanity was a significant factor in his defense, thereby entitling him to psychiatric assistance. Perkins contends this determination is separate and distinct from that of whether he had the mental capacity at the time of the attack to distinguish right from wrong in relation to the attack.

“[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470 U. S. 68, 83 (105 SC 1087, 84 LE2d 53) (1985). See also Callaway v. State, 208 Ga. App. 508, 510 (1) (431 SE2d 143) (1993). “[T]he appointment of a psychiatrist is not always necessary, even when the defense makes a motion for appointment of one.” Lindsey v. State, 254 Ga. 444, 449 (330 SE2d 563) (1985). “The trial court is authorized to order a psychiatrist, or perhaps some other competent mental health expert, to examine the defendant in order to determine whether his sanity is likely to be a significant factor in his defense.” Id. at 449. “The mere filing of a motion does not constitute a preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial. [Cit.]” Robinson v. State, 186 Ga. App. 767, 768 (368 SE2d 533) (1988).

Decided November 21, 1994.

David C. Butler, for appellant.

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

Perkins failed to show that his sanity at the time of the attack would be a significant factor in his defense. Although sanity was virtually his only defense, and he presented evidence that his behavior at the time of the attack was unusual, the psychiatrist concluded, without equivocation, that Perkins was sane at the time of the attack and was competent to assist in his own defense. “Whether to grant the motion . . . [is] in the discretion of the trial court. That determination will not be overturned unless an abuse of discretion is shown.” (Citations and punctutation omitted.) Callaway, supra at 510. Having reviewed the evaluations and the evidence presented by Perkins, the trial court was in a position to determine whether his sanity would be a significant factor at trial. Under the circumstances we see no abuse of discretion in the court’s denial of Perkins’ motions. See Eady v. State, 182 Ga. App. 293, 297 (5) (355 SE2d 778) (1987).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1705.
    PINKARD v. MORRIS et al.
    (450 SE2d 330)
   Ruffin, Judge.

Angela Pinkard sued Christine Morris, the administratrix of the estate of William Ray Morris, deceased (“the deceased”) for a share of his intestate estate. The trial court granted summary judgment to Morris, finding Pinkard’s claim barred by collateral estoppel, and Pinkard appealed.

Approximately five months before Pinkard was born, her mother, now known as Cheryl Roach, married Thomas Hight. Although Hight was not Pinkard’s father, Roach stated she married him “to give a name to her daughter.” Eighteen months later, Roach filed for divorce. Roach, who was 16 years old at the time of the divorce, alleged in the divorce petition there had “been one child born as the issue of this marriage, namely [Pinkard].” In her deposition, Roach stated she did not recall ever reading the petition before signing it at the request of her attorney. A final judgment and decree was entered by the court, incorporating the parties’ agreement providing for custody, visitation, and support for “the parties’ minor child, [Pinkard].” Hight never paid any support for Pinkard and Roach stated she never attempted to enforce the decree because she did not feel that Hight owed them anything and all she was interested in was a divorce.

The deceased died intestate on October 30, 1992. Pinkard now asserts she is the daughter of the deceased and entitled as an heir at law to a pro rata share of his estate. The trial court held Pinkard’s claim is barred under the doctrine of collateral estoppel because the prior divorce decree established Hight, and not the deceased, as her natural father.

1. “Collateral estoppel precludes readjudication of an issue previously adjudicated between the parties or their privies in another action. [Cits.]” Ga. Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757 (2) (439 SE2d 474) (1994). See generally OCGA § 9-12-40. “ ‘ “Generally speaking, privies are those legally represented at trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.” (Cit.)’ [Cit.]” Macuch v. Pettey, 170 Ga. App. 467, 469 (2) (317 SE2d 262) (1984). Before privity can be established, the interests of the party must fully “represent” the interests of the privy and be fully congruent with those interests. Miller v. Charles, 211 Ga. App. 386, 388 (1) (439 SE2d 88) (1993).

In Macuch, a mother, as next friend of her minor daughter, filed a paternity action to have a person, other than her former husband, adjudicated as the daughter’s father. In their divorce decree, the mother and former husband expressly acknowledged the former husband as father of the daughter. In determining whether the daughter was a privy to her mother in the prior divorce proceeding, we considered whether the final decree expressly acknowledged the daughter and provided for her custody and support; whether the mother effectively asserted and protected the interests of the daughter in the divorce proceedings; and whether the daughter had received the benefits of the divorce judgment from the time it was entered, in the form of monetary support and visitation. We concluded the daughter was a privy because her interests were asserted and protected, she was referenced in the decree, and she did receive the benefits. Accordingly, she was barred from relitigating her paternity.

Decided November 21, 1994.

Flournoy & Gentry, Matthew C. Flournoy, William C. Gentry, for appellant.

Donald W. Huskins, Carter A. Setliff, Smith, Gambrell & Russell, E. Kendrick Smith, Thomas M. Barton, for appellees.

In the instant case, despite the fact that the final decree expressly provided for Pinkard’s support and visitation, we are unable to conclude she was a privy of her mother in the divorce. At the time of the divorce, Pinkard was a mere infant, relying solely on her mother of 16 to assert and protect her interests. The record shows the only interest the mother had at the time was in obtaining a divorce, not caring enough for Pinkard’s rights to even read the petition or enforce the decree’s support provisions when Hight failed to pay. Under these circumstances, we find Pinkard’s interests were not represented in the divorce. Accordingly, Pinkard was not a privy of Roach with regard to the previous divorce decree, and she is not precluded from raising the issue of her paternity.

2. Since we have determined Pinkard was not a privy of Roach, we need not determine whether the remaining requirements of collateral estoppel are present.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1841.
    TRUMPET v. BROWN.
    (450 SE2d 316)
   Ruffin, Judge.

Defendant, Romeo Trumpet appeals from the trial court’s grant of a writ of possession and a judgment for unpaid rent.

Trumpet, as tenant, and Stephen Brown, as landlord, entered into a residential lease. After the lease term expired, Trumpet remained in possession of the property with Brown’s consent. On February 9, 1994, Brown notified Trumpet he was terminating the lease in 30 days. On March 9, 1994, Brown filed suit against Trumpet, alleging he failed to pay rent when due and was a tenant at sufferance. By letter dated March 10, 1994, Brown demanded past due rent and possession of the premises. Trumpet answered the complaint alleging he did not owe rent to Brown due to an IRS levy against Brown’s assets.

1. Trumpet asserts the notice of levy he received from the Internal Revenue Service was a defense to Brown’s claim for past due rent. We disagree. 26 USCA § 6332 (e) provides “[a]ny person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary . . . shall be discharged from any obligation or liability to the delinquent taxpayer. . . .” (Emphasis supplied.)

Trumpet cannot simply assert the receipt of the notice of levy as a defense to Brown’s claim for rent. Before Trumpet could avail himself of that defense, and be discharged from his obligation to pay Brown rent, he had to pay the rent to the Internal Revenue Service. Since Trumpet did not pay rent pursuant to the levy, we find no error here.

2. However, we do agree with Trumpet that the trial court erred in ordering a writ of possession because Brown did not properly demand possession of the property. OCGA § 44-7-50 provides that in cases where a tenant fails to pay rent when it becomes due, the owner may demand possession of the property. If, after demand, the tenant fails to deliver possession of the property, the owner may file an action to recover possession. “ ‘(I)n every case, a timely demand for possession is a condition precedent to the institution of dispossessory proceedings under . . . (OCGA § 44-7-50).’ [Cits.]” May v. Poole, 174 Ga. App. 224, 227 (3) (329 SE2d 561) (1985).

In the instant case Brown did not demand possession until March 10, subsequent to the filing of his affidavit and complaint for possession on March 9. Furthermore, Brown’s February 9, 30-day termination letter cannot serve as a demand for possession. Since Trumpet was a tenant at will, pursuant to OCGA § 44-7-7, Brown was required to give him 60 days notice of termination. “The giving by the landlord to the tenant of two months’ notice as required by [OCGA § 44-7-7] to terminate a tenancy at will is not such a demand for possession of the premises as will authorize issuance of a dispossessory warrant. . . . [Cit.]” Goff v. Cooper, 110 Ga. App. 339, 344 (2) (138 SE2d 449) (1964). Finally, since 60 days had not expired since the notice of termination, a demand for possession would not have been proper because the tenancy had not yet terminated. See Metro Mgmt. Co. v. Parker, 247 Ga. 625, 629-630 (278 SE2d 643) (1981). Accordingly, we find since a proper demand was not made, the trial court erred in ordering a writ of possession to be issued.

Decided November 21, 1994.

Bernard & Associates, Patricia D. Bernard, for appellant.

Stephen R. Brown, pro se.

Melvin R. Brown, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1858.
    DEPARTMENT OF PUBLIC SAFETY v. BELL.
    (450 SE2d 320)
   Pope, Chief Judge.

Appellee Brandy Lee Bell was arrested on October 1, 1993 for driving under the influence of alcohol in violation of OCGA § 40-6-391. At the time of her arrest, Bell received a Notice of Suspension which stated that her license would be suspended for a period of one year pursuant to OCGA § 40-5-67.1 (d) because of her refusal to take a breath alcohol test. Hearing procedures, outlined on the back of the Notice of Suspension, advised that in order to contest the suspension a written request for a hearing must be received within five calendar days or the right to a hearing would be waived. On November 22, 1993, 52 days after receipt of the notice, Bell requested a hearing on the license suspension. The Georgia Department of Public Safety (DPS) notified Bell that she would not be afforded a hearing on her license suspension because she had failed to make a timely request.

Subsequently the Milledgeville City Court found Bell not guilty of the offense of DUI. Thereafter, on December 21, 1993, she filed a petition in the superior court to have her suspension of license reviewed. The only ground asserted by Bell in support of her contention that the suspension of her license was clearly erroneous was that she had not refused to take the blood alcohol test; rather, she was unable to do so because she was sobbing and upset at the time it was administered.

On February 7, 1994 the superior court entered a final order affirming the decision of the DPS to suspend Bell’s license for one year on the basis that she had failed to request a hearing in a timely manner. However, on February 11, 1994 a hearing was held at which time Bell raised two additional grounds for appeal: 1) the legal excuse of a closed head injury which, she contended, rendered her mentally incapable of complying with the statutory provisions regarding a hearing on the license suspension, and 2) alleged improper service of the Notice of Suspension. On February 28, 1994, the superior court issued an order reversing the suspension and reinstating the license on the foregoing grounds. The superior court further ordered that the DPS must provide Bell with proper notice and a hearing if it wished to again seek suspension.

The DPS appeals the court’s order, contending that 1) the court erred in considering proffered evidence concerning the alleged improper service of the Notice of Suspension and Bell’s previous medical condition; 2) the court erred in basing its decision on grounds not urged in defendant’s original petition for judicial review; and 3) Bell waived her right to a hearing by failing to request it in a timely manner. We agree and reverse.

1. Judicial review of an administrative ruling by the Department of Public Safety is governed by Chapter 13 of Title 50, the Georgia Administrative Procedure Act. OCGA § 50-13-19 (b) provides that proceedings for judicial review are initiated by filing a petition within 30 days of service of the final decision of the agency and requires the petitioner to state the ground upon which it is contended that the departmental decision should be reversed or modified. Furthermore, subsection (f) of OCGA § 50-13-19 provides in pertinent part: “If, before the date set for hearing, application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that additional evidence is material and there were good reasons for failure to present it in the proceedings before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court.” (Emphasis supplied.) In this case, Bell filed only one petition, and the only ground raised prior to the hearing for reversal of the license suspension was that Bell did not refuse to take the breath test. Bell neither sought to amend her petition to raise the grounds urged at the hearing nor did she make any prior application to the court to present additional evidence as required by OCGA § 50-13-19 (f).

Moreover, the record clearly establishes that the DPS did not waive the above requirements. DPS specifically objected to the presentation of the additional grounds and proffered evidence, and argued that prior notice of Bell’s claims would have allowed it to procure witnesses to refute her contentions. See Caldwell v. Corbin, 152 Ga. App. 153 (262 SE2d 516) (1979). The superior court was thus without authority to consider the additional grounds urged by Bell, as well as the proffered evidence in support of these contentions.

2. We agree with the DPS that Bell waived her right to a hearing by failing to request it in a timely manner. Because the reasons for her noncompliance were not brought before the court below in accordance with established procedural requirements as set forth in Division 1, we decline to address the merits of her legal excuse for failure to comply and the alleged defective service of the Notice of Suspension. The superior court thus erred in reversing the suspension of Bell’s license.

Decided November 21, 1994.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, J. Philip Ferrero, Assistant Attorney General, for appellant.

Shane M. Geeter, for appellee.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2145.
    KIMBROUGH v. THE STATE.
    (450 SE2d 457)
   Birdsong, Presiding Judge.

Cedric Kimbrough appeals his conviction for sale of cocaine and trafficking in cocaine. The evidence showed appellant sold crack cocaine to an undercover agent after an informant took the agent to appellant’s house. Search by warrant revealed 12 rocks of crack cocaine in appellant’s bedroom and a 41-gram cocaine “cookie” (69 percent pure cocaine) in the attic. Appellant has submitted a 79-page brief without authorization, in violation of Court of Appeals Rule 11 (e). Held:

1. Appellant contends the trial court committed harmful error in allowing the arresting officer, who was not qualified as an expert witness, to testify that the street value of the seized cocaine was between $10,000 and $15,000. This was not error. The officer testified as to his qualifications and experience as a veteran of the police force and as an undercover narcotics detective making actual drug purchases. “It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert.” Pittman v. State, 172 Ga. App. 22, 24 (3) (322 SE2d 71). When a proper foundation has been laid, a police officer may testify about elements of crime with which he is familiar in his experience; we have allowed such evidence concerning drug commerce. See, e.g., Crawford v. State, 204 Ga. App. 514 (2) (419 SE2d 754). To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status. Davis v. State, 200 Ga. App. 44 (2) (406 SE2d 555). Opinion evidence offered by such an expert witness is admissible as well. Id. at 46. Appellant cites Robinson v. State, 203 Ga. App. 759 (417 SE2d 404) as a case where we yielded to the trial court’s discretion to admit a crime lab chemist’s testimony as expert evidence of street value of drugs, only because of the chemist’s formal education and background. This assertion is spurious, both as to the case and as to the concept. As stated above, “formal” education is not a requisite to the admission of expert testimony. As a matter of common sense, the “street value” of drugs is more peculiarly in the ken of an officer working on the street or buying drugs incognito, and such an officer is more likely to be knowledgeable on that subject than a laboratory chemist who has no actual experience in the purchase of drugs on the street. The officer testified as to the value of this seized cocaine based on his knowledge of how crack cocaine is packaged and what it sells for on the street, which defines “street value.”

2. In three enumerations appellant contends it was harmful, constitutional error to allow the officer to bolster his opinion testimony as to the value of the cocaine when such testimony had not been impeached, and by using hearsay. Appellant refers to the prosecutor’s query whether the officer “made up” his figures as to value of the cocaine seized, and the officer’s reply that there was “a sheet that we have in the office that we normally go by. ... We have a certain standard sheet that . . . informs us of what the value of it is and what it costs.” Defense counsel objected to this volunteered statement only on grounds that it was hearsay. The trial court overruled the objection.

(a) The rule given in State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338) that normally “a party may not bolster the veracity of its own witness until the witness has been impeached by the adverse party,” refers to character evidence intended to show a witness’ veracity, that is, his tendency to tell the truth. Even assuming an objection had been properly made, the officer’s testimony was not evidence going to his veracity.

(b) Any error in the trial court’s overruling of the hearsay objection to the officer’s mention of a “sheet” which was not produced in court was not harmful, reversible error. The officer had given his opinion of the value of the cocaine seized, based on his knowledge of how this amount of the cocaine would be packaged and sold. His statement that there was a “sheet” indicating values based on information from street dealers and the experience of narcotics agents was merely cumulative. It added nothing to the officer’s testimony based on his own experience as a narcotics agent. It is highly probable any possible error did not affect the verdict. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515).

(c) We find no error of constitutional proportions (right to confrontation) in the overruling of appellant’s hearsay objection to this evidence. The officer did not testify what was on the “sheet,” but merely stated that his opinion was based on information learned by him in the course of his work on the street and in his job. Moreover, any error would not warrant reversal of this verdict. See Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

3. Appellant contends the trial court erred by bolstering the credibility of a State’s witness in the charge on expert witnesses, by improperly implying the undercover agent was an expert. In fact, the testimony of the agent was properly admitted as expert evidence, so any inference by the jury that the officer was an “expert” could not have been error. The trial court correctly charged that the weight to be given expert witness testimony is a question for the jury, and that the jury was “not required to accept the opinion testimony of any witness, expert or otherwise.” The whole charge was correct and not misleading. See Fuller v. State, 211 Ga. App. 104 (5) (438 SE2d 183). Appellant also contends the agent was not an expert because the trial court did not expressly find him to be one and that the trial court should have told the jury he was not an expert. Appellant cites no authority for this assertion and has abandoned it. Court of Appeals Rule 15 (c). It is, moreover, wrong. It would have been error to limit the expert witness charge to the testimony of crime lab experts, for the reasons stated in Division 1.

4. The charge that “reasonable evidentiary certainty is all that can be expected in [a] legal investigation” did not permit the jury to convict appellant on a lesser standard than “beyond a reasonable doubt.” The charge was not reversible error. See Vance v. State, 262 Ga. 236 (2) (416 SE2d 516); Oliver v. State, 207 Ga. App. 681 (2) (428 SE2d 681).

5. Appellant asserts inadequacy of trial counsel in counsel’s failure to communicate a plea bargain offer to appellant and counsel’s failure to reserve exception to the trial court’s jury charges. At a new trial hearing on this issue, the trial court found these assertions without merit. A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless it is clearly erroneous. Middlebrooks v. State, 208 Ga. App. 23, 24 (430 SE2d 163). The trial court’s determination that counsel did not fail to communicate a plea bargain offer to appellant was a matter of credibility of witnesses, and we are not authorized to disturb it. Lee v. State, 205 Ga. App. 139, 140-141 (421 SE2d 301). Failure to reserve objections to the charge could not have harmed appellant as the charges were not error. To show inadequacy of trial counsel, a defendant must establish not only that counsel’s conduct fell below an objective standard of reasonableness, but, further, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97). Appellant has made no such showing.

Decided November 21, 1994.

Travis T. Vance III, for appellant.

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

6. We have reviewed the evidence and find it sufficient to persuade a rational trier of fact of appellant’s guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2283.
    JIVENS v. THE STATE.
    (450 SE2d 328)
   Birdsong, Presiding Judge.

Lawrence Jivens, a/k/a Jerome Smith, was convicted of two counts of aggravated assault, reckless conduct, obstruction of a law enforcement officer, giving a false name, possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon. The State’s evidence showed that appellant became annoyed with Frankie Lee Stewart and Juliette Stewart after he lent his car to their son and the car was returned in poor condition. Appellant confronted the Stewarts twice; the second time, he emptied a .357 magnum gun at them and at their house as they ran to their house. This occurred on a fairly crowded street. Numerous bullets struck the Stewarts’ home and furniture in their home, and struck other places along the street as they ran from appellant. When the police arrived, appellant stated “that he intended to kill Frankie [Stewart] and that he would kill him as soon as he got out of jail.” He told the officer “I would have shot you, too, if I could’ve gotten the gun reloaded.” When he was arrested, appellant was holding seven live rounds of ammunition in his hand. He enumerates eight errors below. Held:

1. We have reviewed the evidence and find it sufficient to persuade a rational trier of fact of appellant’s guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The case was not based solely on circumstantial evidence or solely on the appellant’s uncorroborated statements as he suggests on appeal.

2. Appellant’s second enumeration complains about the court’s “refusal to charge on insufficient theory.” Neither the enumeration nor the argument is framed intelligibly. We have reviewed the portions of the jury charge alluded to by appellant, and we find no error.

3. Appellant contends the charge on reasonable doubt lessened the State’s burden of proof by including language that “a moral and reasonable certainty” as to appellant’s guilt is all that can be expected in a legal investigation. Such a charge has been held not to be reversible error. Vance v. State, 262 Ga. 236 (2) (416 SE2d 516); Oliver v. State, 207 Ga. App. 681 (2) (428 SE2d 681).

4. Appellant contends the trial court erred in having him appear at voir dire in jail clothes and shackled. Prior to voir dire, the State raised the issue of “some misbehavior” of appellant. The trial court said it had observed appellant misbehave the day before, had consulted the sheriff whether appellant’s misbehavior warranted his being shackled, and had decided to have him shackled and handcuffed. Defense counsel objected but stated he could not promise appellant would behave. A deputy interposed: “This morning ... he got up on a table and defecated on it and said that’s what he thought about the court. . . . [On the way to court] he took all his clothes off, and we had to take him down.” After voir dire, defendant promised to behave and the trial court allowed the shackles to be removed.

Where there is good and sufficient cause, the court has discretion to require a defendant to be shackled and otherwise restrained. The trial court is more familiar with its courtroom than we are, so we do not interfere with its exercise of discretion on these matters unless that discretion is clearly abused. Gude v. State, 213 Ga. App. 573 (2) (445 SE2d 355) and cases cited. We find no abuse of discretion.

5. In enumerations five and six, appellant contends the evidence on the false name charge was insufficient to prove the name he gave police, “Jerome Smith,” was not his true name, and that the prior offenses submitted for charge of the possession of a firearm by a convicted felon charge and consideration at sentencing were insufficient as they pertained to “Lawrence Jivens.” Appellant argues that witnesses referred to him as “Smith” and there was no evidence showing his true name was Jivens either by birth certificate, driver’s license or other lawful proof. However, other evidence referred to appellant as Lawrence Jivens; appellant’s true identity was not made an issue at trial; appellant’s counsel represented to the court that appellant’s name was Lawrence Jivens; and appellant does not now suggest that his name is not Lawrence Jivens. The evidence was sufficient to authorize the jury to conclude appellant’s true name is Lawrence Jivens and to authorize his conviction for giving a false name to a law enforcement officer. OCGA § 16-10-25. See Hicks v. State, 232 Ga. 393, 402 (207 SE2d 30). Appellant has waived any further argument on this account by failing to cite authority. Court of Appeals Rule 15 (c) (2).

6. In enumeration seven, appellant contends the State wrongly placed his character in evidence by allowing the testimony of a probation officer who could not give defendant’s true and correct name. Appellant cites no authority for this proposition (see Court of Appeals Rule 15 (c) (2)), and since it was not in material evidentiary dispute at trial that appellant’s true name is Lawrence Jivens, we find no error.

Decided November 21, 1994.

Gerald L. Olding, for appellant.

Spencer Lawton, Jr., District Attorney, Greg M. McConnell, Assistant District Attorney, for appellee.

7. In his final enumeration, appellant contends government witnesses suppressed exculpatory evidence. However, appellant abandons this enumeration by failing to make any argument on that issue. Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1038.
    HUDGINS & COMPANY, INC. v. J & M TANK LINES, INC.
    (450 SE2d 221)
   Pope, Chief Judge.

Defendant J & M Tank Lines leased property from plaintiff Hudgins & Company from December 1966 through June 1990. Plaintiff alleges that defendant contaminated the property and refuses to remediate the contamination, and seeks punitive damages in addition to declaratory and injunctive relief. The trial court granted defendant’s motion for partial summary judgment on the issue of punitive damages, ruling that the facts, even as alleged by plaintiff, would not warrant an award of punitive damages. Plaintiff appeals, and we reverse.

We view the evidence in the light most favorable to plaintiff as the non-moving party. See, e.g., Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 (1) (426 SE2d 387) (1992). Defendant used the property leased from plaintiff as a truck terminal and installed underground storage tanks (USTs) to provide fuel for its trucks. In 1979, defendant discovered that one of the USTs was leaking. It did not notify plaintiff or anyone else of the leak, but it did remove and replace the faulty UST. Then, when defendant vacated the property in June 1990 and removed its USTs, it discovered that further releases of fuel into the surrounding soil had occurred. Defendant failed to inform plaintiff of this situation and avoided plaintiff’s phone calls until August 7, 1990. Plaintiff learned of the hydrocarbon (fuel oil) contamination when its representative visited the property and found the engineering consultants hired by defendant drilling test holes in and around the former UST basin. In November 1990, defendant informed plaintiff that it had begun assessment and remediation of the contamination. In April 1991, however, plaintiff had not been apprised of the status of the site for several months. It therefore hired its own engineering consultants to inspect the property and determine its condition. These consultants found “hydrocarbon contamination in the subsurface soil located downgradient of the abandoned USTs locations,” such that the property was in violation of federal and state regulations and unmarketable. Although plaintiff informed defendant of the continuing contamination, defendant refused to remediate.

Defendant asserts that it has already taken some actions to remediate any damage caused by its fuel storage, and that any remaining contamination was caused by other activities. Defendant’s assertions, however, are supported only by citations to its briefs below, which are not evidence; and the briefs below cite depositions and other evidence not included in the record on appeal. Moreover, for purposes of punitive damages, we see the crucial question as what defendant did after notification of fuel oil contamination remaining in the soil in April 1991, and defendant does not assert that it took any remedial actions after that time.

“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). Contrary to the trial court’s ruling, the facts set forth above would support an award of punitive damages. While the initial release of fuel into the soil may have been merely negligent, the contamination and resulting damage is continuing, and a jury could certainly find that defendant’s continued refusal to remediate after notification of the results of the April 1991 investigation (i.e., that there was at that time “hydrocarbon contamination in the subsurface soil located downgradient of abandoned USTs locations”) constitutes wilful misconduct. See Hoffman, 206 Ga. App. at 729-730, 732 (1, 5) (hydrocarbon contamination constitutes nuisance and continuing trespass even after leaks have been fixed, and punitive damages may be recovered for failure to remediate contamination after notice); cf. Holland v. Shackelford, 220 Ga. 104, 112 (3) (137 SE2d 298) (1964) (punitive damages may be recovered for continuing trespass “where the circumstances are such as to justify the allowance thereof”). Accordingly, a jury should determine whether punitive damages are warranted in this case, and the trial court erred in granting partial summary judgment for defendant on this issue.

Decided September 27, 1994

Reconsideration denied November 22, 1994

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellant.

Wilson, Strickland & Benson, Earl B. Benson, Jr., Mary M. Brockington, for appellee.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

       Defendant attempts to distinguish Hoffman on the grounds that the defendants in Hoffman failed to make any efforts to clean up the contamination, while defendant in this case did take some actions to remediate after vacating the property in 1990. Even if we assume this is true (despite the absence of evidence of such actions in the record), this distinction is not compelling under the circumstances presented here. For as we noted above, defendant was notified of the continued presence of hydrocarbon contamination in April 1991 and failed to take any actions to remediate after that time; and it is this failure which would support the award of punitive damages, regardless of actions taken earlier.