author: Bloodworth, J..

text:
    10848.
    CORBETT v. ATLANTIC COAST LINE RAILROAD COMPANY.
    Under the petition in this case, the child alleged to have been injured cannot be treated as a trespasser, and the case must turn upon whether the defendant was negligent as alleged in the petition. Questions of negligence are peculiarly for determination by the jury, and the judge erred in dismissing the petition on general demurrer.
    Decided March 2, 1920.
    (Certiorari was granted by the Supreme Court.)
    Action for, damages; from city court of Waycross—Judge Crawley. July 23, 1919.

      W. T. Corbett, as next friend, sued for injuries to Homer Corbett, a child six years old, caused by his hand being caught in the gearing and machinery of a railroad velocipede. The petition alleged in.part: “The injuries complained of are as follows: the crushing, laceration and breaking of the right hand of said Homer Corbett, and the breaking of the bones therein, rendering it necessary for the physician treating him to take eight stitches upon the same, on account of its severe laceration; and although said hand has since healed, yet, by reason of the breaking of the bones as alleged, the use of the right thumb has been permanently lost. Plaintiff shows that the negligence of the defendant, its agents and employees, causing said injury, was as follows: L. J. James, who was at the time of said injury an agent, servant, and employee of the defendant company, as electric lineman, using a velocipede for traveling over defendant’s line of road, did, on the date alleged, come to Manor, Ga., a small town upon defendant’s line of road in said county, and after removing said velocipede car from the track of the company, he placed the same in an open and exposed place, near the depot in said town, where the public were accustomed to travel and be, and where the small children of the town were at liberty to go, and where they frequently went. ’laintifE shows further that while the said agent and employee of the defendant company pretended to fasten said velocipede car, knowing its danger if left exposed to children, the same was not fastened, but so fixed and left that it could be easily moved forward and backward for a distance of two feet or more, and, the same being dangerous and attractive to children, it became more dangerous by reason of the fact that it could be thus moved; and this failure on the part of the defendant’s servant and employee to securely fasten said car was a further act of negligence. Among other children who were attracted to said velocipede car, the said Homer Corbett was so attracted, and being a child of tender years he was without discretion or sufficient judgment to realize the danger of contact with or the handling of said velocipede car; and after being attracted to said place of danger, and while playing with said car in its dangerous position and condition so left by the defendant company by and through its agent as aforesaid, he had his right hand caught in the gearing and machinery of said car, and thereby sustained the injuries complained of by having his hand badly mashed and the bones in it. broken.” In an amendment to the petition it was alleged that “said machine so construed as above described was on the principle of and very much like the construction of an ordinary bicycle or the usual tricycle or velocipede used by children almost universally as playthings, and it was painted in bright red colors, and was not too large or cumbersome to appear to a child to be a plaything, and for these reasons it was attractive to children, and was an instrument and piece of machinery that would naturally and necessarily attract children of immature years and experience.”
    The specific acts of negligence set out in the amendment were: “ (a) in leaving a dangerous and attractive machine and velocipede car, unfastened, unenclosed, and unguarded, in a public place near the heart of a little town, where people and children are wont to visit it and pass by it and play around it and near it; (5) in leaving said velocipede ear at or near the depot and upon the ground where it was easily accessible to children or others who might be near such public place; (c) in failing to fasten securely, and so that the same could not be moved backward or forward, the wheels and gearing and machinery on and connected with said velocipede car, so as to keep the same from being dangerous to the safety of children who might be near by.” The court sustained the demurrer to the petition and dismissed it, and the plaintiff excepted.

      Parker & Parker, for plaintiff.

      Bennet, Twitty & Reese, Wilson & Bennett, for defendant.
   Bloodworth, J..

(After stating the foregoing facts.) This case is controlled by the decision in the case of American Telephone and Telegraph Co. v. Murden, 141 Ga. 208 (80 S. E. 788). In that case a large chest, with a heavy lid which “had a small chain attached to it so as to prevent it from going much beyond a perpendicular position when opened,” was placed by defendants in a cottonseed house belonging to the father of a minor. “The place was a public one and much frequented by children.” The petition alleged that the lid when left up “could, by a very slight pressure upon the chain, be drawn over so as to fall;” that “on the date mentioned the employees of the defendants left the lid of the chest raised, and went away, leaving the door of the house open as an invitation to children to enter, they all knowing that the place was frequented by children and that the lid thus left was a dangerous trap likely to attract the notice and invite the investigation of children. The plaintiff, who was a child between two and three years old, seeing the door open and the lid up, was attracted thereby, and, in seeking to investigate it, according to the natural instincts of a child, pushed upon the chain and threw the lid down. His right thumb was caught and mangled so that it had to be cut off at the joint. He was incapable of exercising care for his own safety, and the occurrence was due entirely to the negligence of the employees of the defendants in leaving the chest lid open and exposed as stated.” A demurrer to the petition was overruled, and the defendant excepted. The Supreme Court said: “Under the petition and the general demurrer, we must consider the case as one in which neither party was a trespasser, but both were lawfully at the place where the injury occurred. It must therefore turn upon whether, in view of the situation and the known surroundings as alleged, the agents of the defendants were negligent in leaving the chest in such a way as to create a dangerous situation for the plaintiff, and whether the plaintiff was negligent, in view of his age, in ‘investigating’ the chest or laying his hand upon it. These questions cannot be solved as matters of law, in favor of the defendants, on general demurrer.” Under the petition in the instant case, we can not treat the minor as a trespasser, and the case must turn upon whether or not the defendant was negligent as alleged in the petition. As questions of negligence are peculiarly for determination by the jury, the judge erred in dismissing the petition on general demurrer.

Judgment reversed.

Broyles, C. J., and Lulce, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    10931.
    MYERS v. BROOKS.
    Under the facts of this ease the term of court in which the case was tried had expired before the motion for a new trial was made, and the motion was properly dismissed.
    Decided March 2, 1920.
    Motion for new trial; from Bibb superior court—Judge Mathews. July 30, 1919.
    The bill of exceptions recites that “About ten days after the said trial, to wit, on March 14th, 1919, the judge of said court, the honorable H. A. Mathews, in his office in the court-house adjoining the superior-court room, at Macon, Georgia, in the presence of McDougald Nisbet, deputy clerk of said court, and G. S. Westcott, deputy sheriff of said county, in attendance upon the said judge and court, orally stated that the business of the February term, 1919, of Bibb superior court was concluded, and announced that the February term, 1919, was adjourned, and orally instructed the said deputy sheriff to formally announce the adjournment of said court. The said deputy sheriff did then and there formally announce the adjournment of said term of said court, which was the usual and customary manner of adjourning said court for many years past. The said judge then left Macon for his home in Fort Valley, Georgia, with no intention of returning to Macon for the purpose of transacting any further business of said February term of said court. All juries had been discharged for the said term. Thereafterwards, to wit, on March 15th, 1919, the judge of said court in his office in the city of Macon signed a written order in which he undertook to revoke said oral order of adjournment, and therein he declared the February term, 1919, of Bibb superior court to be still in session, but in recess until the further order of court. At the time such written order was signed and entered by the said judge, no entry had been made on the minutes of the oral order of adjournment, no written order of adjournment had been made, signed, or entered, no other action taken looking towards adjournment of the said term of court, other than hereinbefore set out, except that the clerk of the court had written up the minutes of that term of the court and was, at the time the written order was presented to him, then ready to actually enter said oral order of adjournment upon the minutes, which was the customary and usual manner of entering the order of adjournment in said court. After the signing of said written order and before any other had been made, signed or entered, counsel for John H. Myers, defendant in the above-stated case, on the same date, to wit, March 15th, 1919, presented to the said judge, the honorable H. A. Mathews, a motion for new trial in said case, upon which motion the said judge issued his rule nisi dated March 15th, 1919, setting the hearing of said motion for 10 o’clock on the 5th day of April, 1919, and allowing until the actual hearing of the motion for the movant to present to the court a brief of evidence in said case, and to amend the said motion.” The hearing of the motion was continued from time to time until June 7. The bill of exceptions further shows that “respondent to said motion presented in writing a motion to dismiss the motion for new trial upon two main grounds, to wit: first, because the said motion was presented after the adjournment of the term to which the said case was tried, and, second, because movant did not present a brief of the evidence in said case on or before the 19th day of April, 1919.” _ At the hearing the judge passed the folio-wing order: “It appearing from the record in this case that the motion for new trial in this case was filed after the court had been regularly adjourned for the February term, 1919, of the term at which the ease was tried, and that this adjournment was not affected by any subsequent order which could continue or revive the term of the court at which said case was tried, it is thereupon, on motion of respondent it is ordered that the motion for new trial filed in this ease be and the same is hereby dismissed.” To this order the movant excepted.

      Charles H. Garrett, for plaintiff in error.

      Walter DeFore, James C. Fstes, contra.
   Bloodworth, J.

(After stating the foregoing facts.) When the presiding judge dismissed the juries, announced that the business of the term was closed, that the term was adjourned, and had the deputy sheriff in attendance on the court to announce that fact, and “the said judge then left Macon for his home in Fort Yalley, Georgia, with no intention of returning to Macon for the transaction of any further business of said February term of said court,” the term expired, “died a natural death.” Such a term once dead is dead forever, and can know no resurrection morn. There is no law which specifically provides that the judge shall sign a special order adjourning a term of the superior court, and an adjournment may be valid and complete even when there is no such order and the judge has not signed the minutes showing the fact of adjournment. See Worthington v. State, 134 Ga. 261 (67 S. E. 805). This case is not analogous to those where the law requires an order or judgment to be in writing and where the judge orally announces what he proposes to write in the order or judgment. Such cases come within the well-recognized principle that “a court of record has full power, in the exercise of a sound discretion, to revive or vacate its judgments during the term at which they are made.” As has been said of such cases, “They are about to expire but are not dead.” Under certain conditions the judge, during the term at which it is tried, has power to save an expiring case, but he has no power, by written order or otherwise, after the term has been formally adjourned,—is absolutely dead,—to revive and vitalize that term.

Under the facts of this case the term of court had expired before the motion for a new trial was filed, and as all such motions must be made during term time, the judge did not err in dismissing the motion. See Civil Code (1910), § 6089; Keen v. Davis, 141 Ga. 608 (81 S. E. 868); Collier v. State, 115 Ga. 17, 18 (41 S. E. 261).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Luke, J.

text:
    10941.
    SALMON v. FLOYD COUNTY.
    The tax-reeeiver was. entitled to the same compensation as the tax-collector of the county for the year 1918, under the act approved on August 17th of that year, by which section 1202 of the Civil Code was amended so as to provide that “the county shall pay the receiver the same compensation as the collector gets for the collection of the county taxes.” The tax-receiver’s services for the year did not end with the completion of his digest; and his• commissions were not due and collectible until after the collection of taxes for the year by the tax-collector.
    Decided March 2, 1920.
    (Certioraji was granted by the Supreme Court.)
    Complaint; from city court of Eloyd county—Judge Nunnally. September 2, 1919.
    The petition of J. Z. Salmon against Eloyd County, as amended, alleges, in substance: The petitioner is the duly elected and qualiled tax-receiver for Eloyd county for a term of four years beginning January 1, 1917. The assessed valuation of the property of Eloyd county for purposes of taxation, as shown by the tax-register for the year 1918, was $16,565,092, and the rate of taxation as fixed by the board of commissioners of roads and revenues' of the county, for the year 1918, was a total of 90 cents-on each $100. This tax rate was assessed and fixed by the said board at a meeting held on September 3,.1918, and did not become legal and binding until after it had been advertised once a week for four weeks thereafter in accordance with law. By the terms of an act of the General Assembly, approved August 17, 1918, the compensation of tax-receivers in Georgia was made the same as that of the tax-collector; and on this basis the amount due the petitioner by the county as compensation for his services as tax-receiver for the year 1918 was a total of $2,346.07, written demand for which was made by. the the petitioner upon the said commissioners. The said board refused to pay the said account in full, but paid the petitioner the sum of $1,173.40; which was paid to and received by him without prejudice to his right to collect the balance of the amount claimed; the said commissioners claiming that the said act of the General Assembly did not apply for the year 1918. There is due him a balance amounting to $1,173.03, as his compensation as such tax-receiver for the year 1918, with interest thereon at the rate of 7% per annum from December 30, 1918; for which sum he sues. The digest required by law to be compiled and forwarded to the State tax-commissioner and approved by him before a copy of it is turned over to the board of commissioners and to the tax-collector was not examined, corrected, and approved by the State tax-commissioner until after August 17, 1918. The comptroller-general of the State, acting under authority given him by the tax act of 1913, extended the time allowed tax-receivers of the State to complete their digests from August 1, 1918, to a date subsequent to August 17, 1918.
    The petition was dismissed on demurrer. The demurrer was on the grounds: (1) No cause of action is set forth. (3) The petition shows that the petitioner is entitled to receive only the compensation paid him, and not the increased eompensatio.n provided for in the act referred to. (3) The petition shows that the act under which the increased compensation is claimed was passed after the expiration of the time for completion of the work of the tax-receiver for the year 1918. (4) The services of the tax-receiver for the year 1918 could only be upon a quantum meruit basis for the services rendered by him for the remainder of the year, after the approval of the act referred to, and no facts are alleged on which to base such a quantum meruit claim, and it is not shown what services were rendered after that date. (5) It does not appear what proportion of the indebtedness claimed was payable to the tax-receiver after that date, by reason of services then rendered.

      Maddox & Doyal, Rosser, Slaton, Phillips & Hopkins, for plaintiff.

      Denny & Wright, for defendant.
   Luke, J.

The only question raised in this case is whether, under section 1303 of the Civil Code (1910), as amended by an act of the legislature approved August 17, 1918 (Ga. L. 1918, p. 110), the tax-receiver of Floyd county is entitled to be compensated for Ms services for the year 1918 as provided therein. It is contended on the part of the county that the act of 1918, supra, did not entitle him to receive more than Avas allowed him by the preexisting law in force on January 1 of that year. No constitutional question being raised in this case, and the sole question being as to the time when the said act was applicable in behalf of the tax-receiver, we hold that he was entitled to receive for his services as tax-receiA'er for the year 1918 the same compensation that the tax-collector of Floyd county was paid for the year 1918 for services as tax-collector. We are of the opinion that the compensation of the tax-receiver is not due and collectible until after the taxes are collected by the tax-collector. We are of the further opinion that the services of the tax-receiver to the county do not end with his completing his digest, but, as provided in section 1197 (6) of the Civil Code (1910), he is required to receive tax-returns at any time when a tax-payer applies to him, to give in such returns. Having the opinion stated, we hold that it was error to sustain the general demurrer to the plaintiff’s petition.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodwoeth, J.

text:
    10944.
    Stephens v. Blackwell et al.

   Bloodwoeth, J.

1. “In an action on a note given by a principal and sureties the defendants may set off unliquidated damages flowing from the breach of an independent contract between the plaintiff and the principal, and competent testimony tending to support this plea should not be repelled.” Pickett v. Andrews, 135 Ga. 299 (69 S. E. 478). In the opinion in that case it is said: “Damages for the breach of a contract do not spring from a tort, but from the violation of a contract; and therefore such damages arise ex contractu, and constitute a mutual demand, which is the subject-matter of set-off in a suit on a contract.” Under these rulings the court did not err in overruling the demurrer to the plea, and the charge of the court was not subject to the exception taken. See also Civil Code (1910), § 4340; Buchanan v. McClain, 110 Ga. 477 (3) (35 S. E. 665).

2. “An assignment of error upon a ruling of the court excluding evidence, which does not set forth the evidence literally or in substance, is too indefinite to present any question for consideration.” Fountain v. State, 23 Ga. App. 120 (5) (98 S. E. 178), and eit.; Edenfield v. Boyd, 143 Ga. 97 (7) (84 S. E. 436). This ruling disposes of special grounds 1, 2, and 4 of the motion for a new trial.

3. “The refusal to direct a verdict is not error in any case.” Dudley v. Isler, 21 Ga. App. 615 (2) (94 S. E. 827), and cit.

Decided March 2, 1920.

Appeal; from Cherokee superior court—George D. Anderson, Judge pro hac vice. September 13, 1919.

E. W. Coleman, for plaintiff.

4. “Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for new trial must be complete within itself; and when so incomplete as to require a reference to the brief of evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” McCall v. State, 23 Ga. App. 770 (1) (99 S. E. 471). This disposes of the 5th special ground of the motion for a new trial.

5. The verdict has evidence to support it.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Bloodwobth, J.

text:
    10947.
    Hodges et al. v. Thompson et al.

    Decided March 2, 1920.
    Action for damages; from city court of Monroe—Judge Stone. September 18, 1919.

      B. L. & H. C. Cox, for plaintiffs in error.

      B. W. Fortson, contra.
   Bloodwobth, J.

1. The only special ground of the motion for a new trial complains of the refusal of the court to give to the jury a certain requested charge. “In order that this court may consider an exception to the judge’s refusal to give a request to charge, it must appear not only that it was in writing, but also that it was tendered to the court before the jury retired ‘to consider their verdict.’ ” Shirley v. State, 5 Ga. App. 611 (2) (63 S. E. 583); Penal Code (1910), § 1087. It does not so appear in this ground.

2. No error of law appearing, this court will not disturb a verdict where there is evidence to support it, as there is in this case, and where it is approved by the trial judge.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    10958.
    MAGNUSON v. CITY OF BAINBRIDGE.
    No cause of action against the city was shown by the allegations upon which it was sought to recover for alleged negligence of the city’s employee in changing transformers by which the city furnished electricity to a motor that the plaintiff was connecting with an elevator in a building when injured. The court did not err in sustaining the general demurrer to the petition.
    Decided March 2, 1920.

      Action for damages; from city court of Bainbridge—Judge Spooner. September 18, 1919.

      A. E. Thornton, for plaintiff. Hartsfield & Conger, for defendant.
   Luke, J.

Magnuson brought suit against the City of Bainbridge, alleging, substantially, that on September 17, 1917, he was engaged in working upon the top of a certain elevator in the Bainbridge Hospital at the instance of the Bainbridge Hospital; that the elevator was operated by electricity with an electric motor inside of said building, and received the current of electricity through and by a transformer placed on a pole outside the building; that the electricity and the transformer were owned by the City of Bainbridge, and the city furnished the electricity over its wires and through said transformer for pay; that he was working for the Otis Elevator Company, and for them was engaged in installing said elevator, and connecting the same for operation with the motor of said building for the owners thereof, and while so engaged he had previous to said date connected said motor with the current of electricity from the transformer that was installed by said city, and had been running said elevator so connected; that on said day it was necessary for petitioner to be on top of said elevator to complete the work of installing the same, by placing switches in the wire and pipe; that the City of Bainbridge on said date, by its agent and representative, Gibson, as employee of the city, made a change in said transformer on said pole on said street, and, while petitioner was engaged on the top of said elevator as aforesaid, notified him that said transformer was all right; that while the first transformer was in position and being used, said motor was connected with the same, and, by throwing on the switch or connection from said motor and said transformer, the motor would turn and move the elevator up or down as desired by the operator; that the said city, by its agents, employees, and representatives, without the knowledge of petitioner, carelessly and negligently changed said transformer reverse from the first transformer, causing the operation of the motor inside of said building to run reverse or opposite the direction it ran when connected with the first, and said agent or employee of said defendant changed the wires upon said transformer, or changed the wires leading from said transformer to the motor in said building; that the said change caused the phases of electricity in said wires to be changed, and the said changes of the phases of electricity reversed the rotation of the current, thereby causing the motor to run in an opposite direction; that “by so carelessly and negligently placing said transformer reverse from the first transformer caused the operation of the motor inside of said building to run reverse or opposite from the direction it ran when connected with the first transformer;” that While so engaged upon the top of said elevator it became necessary for him to put on the switch that connected said elevator with said motor, for the purpose of going down or lowering said elevator, without knowing said City of Bainbridge had changed or reversed said transformer, and when he put on the switch of connection the elevator, instead of going down or lowering, went up in the opposite direction; that when said elevator went up he was caught between the cross-head of said elevator and the heavy overhead steel beams, mashing him and causing injuries for which he sues; that he made claim upon the City of Bainbridge as required by law, and the city refused to pay for his injuries; that the city was negligent and careless in changing the transformers that furnished the current of electricity to the motor inside of said building, and in connecting the wire in the said transformer the same way that the wires were connected to the first or smaller transformer; that said city was negligent and careless in reversing the larger transformer opposite from the first or smaller transformer, thereby changing the electric phases that operated the motor inside the said building; that said city was negligent and careless in that said city’s agents and employees and representatives did not warn or notify petitioner that the transformer as changed had been reversed and had not been placed as on the first or smaller transformer, and that the electric phases had been changed, etc. To this petition the City of Bainbridge demurred, and its demurrer was sustained, upon the ground that the petition set forth no cause of action. Error is assigned upon the judgment sustaining the demurrer.

The petition in this case, construed as it must be, shows that the City of Bainbridge furnished electricity to the Bainbridge Hospital, and furnished such electricity in the usual and ordinary way; that the city was employed only to deliver the current to the building; that the connections inside the building were made by the plaintiff; that the transformer on the outside was changed and the plaintiff was notified of the change; that the plaintiff, after being notified of the change from a smaller to a larger transformer, did nothing to discover what would be the effect upon his motor in the elevator, the wires to which he had made the connection; that the city had no notice of how he had connected the wires to the motor; that the city did not know which way a turn of the switch on the motor in the building would move the motor,— whether up or down; that the movement of the elevator was a matter exclusively within the knowledge of the plaintiff; and that the use of the electricity passing through the transformer in the operation of the elevator was optional with the plaintiff. In fact one of the allegations of negligence shows that the larger transformer, of the installation of which the plaintiff had notice, was connected exactly and in the same manner as the smaller transformer.

What was the proximate cause of this injury? Does the petition show that the plaintiff was lacking in ordinary care ? Doesn’t the petition show that the plaintiff was notified of the change of transformers on the outside of the building ? What did the plaintiff do after having notice that the transformer was changed? Did he do anything to see if his motor was running backward or forward, which motion it got by reason of his connection, before placing himself in a perilous position? We-are of the opinion that the injury to this plaintiff was not caused by the negligence of the City of Bainbridge in furnishing electricity to the building in which he was working. See Civil Code (1910), § 4426; 9 B. C. L. 1204. Notice to the plaintiff of the change of transformers was such diligence as was necessary to put him on notice, that he might observe for himself the effect of the electricity on his motor operating the elevator; especially is this true when it is not shown that the city even knew that the motor had yet been connected with the electric wire, and if it had been, how it was connected or in what way it operated the motor, or in what way the plaintiff wished it to operate the motor, whether a turn of the switch on the motor to the right would cause to motor to revolve right or left. See Denson v. Ga. Ry. & Electric Co., 135 Ga. 133 (68 S. E. 1113).

Judgment affirmed.

Bnoyles, C. J., and Bloodworth,.J., concur.


text:
    10959.
    McVay Brothers v. Dodd, trustee.
    Decided March 2, 1920.
    Motion to dismiss writ of error.

      O. A. Weddington, for plaintiff in error. H. F. Lawson, contra.
   Bloodwoeth, J.

This case was tried on the 15th of July, and it affirmatively appears from the bill of exceptions that it was not presented to the judge until the 15th of September, more than sixty days from the date of the trial. The motion to dismiss the bill of exceptions must be sustained. Civil Code (1910), § 6152; Jones v. State, 146 Ga. 8 (90 S. E. 280).

Bill of exceptions dismissed.

Broyles, O. J., and Lulce, J., concur.


text:
    11048.
    THRASHER v. THE STATE.
    Refusal to discharge the accused on the ground that he had not been tried at the first or the second term after demand for trial was not error, under the facts of this case.
    It was not error to give in charge to the jury section 1013 of the Penal Code (1910).
    The extent of the punishment imposed by the sentence of the court can not properly be made a ground of a motion for a new trial.
    The evidence authorized the verdict, and no error of law appears.
    Decided March 2, 1920.
    Indictment for larceny from house; from Eulton superior court —Judge Humphries. October 25, 1919.

      John P. Eaunson, for plaintiff in error.

      John A. Boykin, solicitor-general, E .A. Stephens, contra.
   Bloodworth, J.

1. A true bill was returned against accused on October 15, 1917. At the November term, 1918, a demand for trial was made, and it was overruled “on the ground that there was no jury in session, that the demand was not in proper form, and that there had been more than two terms of court preceding said demand.” Notwithstanding the refusal of the judge to allow the demand, the exceptions pendente lite dated July 2, 1919, recited that “said demand was spread upon the minutes of said court on December 26, 1918, and since that time two terms of court have passed by, the January term, 1919, and the March term, 1919, and now is the May term or third term of said court; the above case is set for trial on June 11th, 1919. Whereupon counsel for defendant made a motion that defendant be discharged, on the ground that two terms, excluding the November term, 1918, had elapsed without bringing said defendant to trial, and that automatically he was discharged by operation of law, but it was proper that the discharge be formally ordered and signed by the judge to clear the proof.”

The court did not err in refusing to order the discharge of the defendant. The Penal Code (1910), § 983, provides that “Any person against whom a true bill of indictment is found, -for an offense not affecting his life, may demand a trial at the term when the indictment is found; or at the next succeeding term thereafter, or at any subsequent term, by .special permission of the court, which demand shall be placed upon the minutes of the court.” In construing this section Mr. Justice Cobb, in Dublin v. State, 126 Ga. 582 (55 S. E. 487), after referring to the Code of 1863, said: “Under the provisions of that code, the demand may be entered as a matter of right at the first or second term, and at any subsequent term by special permission of the court. Code of 1863, § 4534. Such is the law at the present time. Penal Code, § 958 [now 983].” Following this construction, except in cases affecting life, the accused may enter a demand as a matter of right “at the term when the indictment is found or at the next succeeding term thereafter.” After the second term no demand can be entered except “by special permission of the court.” If the demand is made after the second term from the finding of the indictment, and is denied, this ends the matter .unless exceptions pendente lite to the refusal are filed and approved. In this case the exceptions pendente lite were to the refusal of the court to discharge the defendant under the alleged demand, and not to the refusal of the court to allow the demand. See, in this connection, Dublin v. State, 126 Ga. 582 (55 S. E. 487); Moore v. State, 63 Ga. 165; Roebuck v. State, 57 Ga. 154; Couch v. State, 28 Ga. 64.

2. In ground 6 of the motion for new trial, as it appears in the record, there is nothing that would authorize the grant of a new trial.

3. Section 1013 of the Penal Code (1910) was applicable to the facts in the case, and the court did not err in giving it in charge to the jury, as alleged in ground 10 of the motion for a new trial, in which it is contended that the charge was “a suggestion to the jury that the falsity of the testimony or the allegations is immaterial if they believe the defendant guilty.”

á. Under the facts of the case, and when considered in connection with the entire charge of the court, there is no error in the excerpts from the charge complained of in grounds 13 and 13 of the motion for a new trial.

5. “Objection that the sentence imposed in a criminal ease is excessive, or for any reason illegal dr irregular, cannot be properly made the ground for a motion for a new trial.” Sable v. State, 32 Ga. App. 768 (97 S. E. 271), and cit.

6. No error of law appears; the jury is the final arbiter of the facts, the judge, who saw and heard the witnesses, approved the finding of the jury, and this court will not interfere.

Judgment affirmed.

Broyles, O. J., and Lulce J., concur.


text:
    11065.
    Bracey v. The State.
    Decided March 2, 1920.
    Conviction of driving automobile while under the influence of liquor—certiorari; from Morgan superior court—Judge Park. October 2, 1919.

      M. Q. Few, for plaintiff in error.

      Doyle Campbell, solicitor-general, A. Q. Foster, solicitor, contra.
   Luke, J.

1. The conviction of the defendant in this ease not depending solely upon circumstantial evidence, the court did not err in failing to charge the jury the law of circumstantial evidence, there being no request for such a charge.

2. There was no error in the charge of the court excepted to, and the evidence as shown by the answer to the petition for certiorari authorized the conviction of the defendant. Eor no 'reason assigned was it error to overrule the certiorari.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    11080.
    Jarrell v. Gillespie.
   Bloodworth, J.

This being a suit on an unconditional promissory note, on the trial of which the defendant’s attorney “in open court, before any evidence was offered, admitted the execution of the note and assumed the burden and, claimed the opening and conclusion,” and no legal defense being shown by the evidence introduced, the judge properly directed a verdict for the plaintiff.

Complaint; from Effingham superior court—Judge Lovett. October 20, 1919.

Gillespie sued Jarrell on a promissory note. The defendant pleaded that the note “was procured by legal fraud,” in this: The plaintiff advertised that he was making loans to farmers on their lands, and the defendant applied for a loan upon his lands. The plaintiff “assured him that he would procure the loan, but stated that, in order to procure said loan, defendant should apply for and secure a life-insurance policy.” The defendant stated that he did not desire more insurance, as he had ¿11 he was able to pay for, but after being assured that the best way to secure the loan was to take out the policy, and being told that he need not pay any money, but could pay the premium out of the loan which the plaintiff would secure for him, he assented, solely upon this representation, and he paid the plaintiff $20 to have an appraisement made of his farm, as a preliminary to securing the loan. The plaintiff put him off with promises from time to time until the insurance policy was ready for delivery, at which time the plaintiff asked that he give a sixty-days note for the premium, and stated that it could be paid out of the loan. He gave this note solely to obtain the loan, and not because he desired insurance. The plaintiff put him off until the note matured, and then urged him to renew the note, still leading him to believe that the loan would be forthcoming. Two days before the renewal note became due, t’- plaintiff wrote a letter to him, from which he became satisfied that it was useless to waste more time on the plaintiff, and he therefore declined to pay the note. As he had had the policy for about four months, he offered to return it and to pay to the plaintiff the pro rata part of the premium for the time he had been covered, but the plaintiff declined to accept this, and sought to force him to pay what he believes to be a void note, because the consideration therefor has totally failed.

At the trial testimony was introduced in support of this plea. The plaintiff testified that he applied for a loan of $5,000, that his property was afterwards appraised at $8,050, and the plaintiff told him he could get $3,000, and he said he would accept that. “I reckon he (the plaintiff) was trying to get it all the time; he wrote me so.” A letter from the plaintiff to the defendant, dated two days before the note sued on fell due, said, “relative to your loan, I have made every effort to get this, and am still trying to do so, but I thirds: it hardly possible to obtain the amount you desire, as the appraisers do not seem to place a value on your place as you do.”

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

The trial judge, at the time of directing the verdict in favor of the plaintiff, said: “An agreement that an unconditional promissory note was never to be paid, or was to be paid only on the happening of an uncertain event in the future, not integrated in the note, would certainly alter the terms of the instrument, and would alter the rule of parol evidence in Georgia. In the absence of a plea of fraud, such evidence could never be considered. In this case there is a plea which the pleader denominates one of fraud, but in the opinion of the court the facts sufficiently well pleaded do not constitute fraud against which a court will relieve.' In order for the facts, as developed on the trial, to constitute such fraud as would entitle the plaintiff to relief, it must appear that there was some misrepresentation of fact, that the misrepresentation was a material one, and that it was acted upon by the opposite party. Generally these misrepresentations must relate to a present or existing fact, for misrepresentations as to future facts are themselves uncertain, as all things in the future are speculative and more or less subject to change. The only thing, as the court sees this case, that it can be fairly said that the plaintiff misrepresented was his ability to procure a real-estate loan for the defendant. That related to a future fact, and all the facts, construed together, show a reasonable effort on the part of the plaintiff to obtain the loan, and the mere fact that he may have failed to obtain the loan could not, under any circumstances, create a presumption of fraud.”

W. J3. Stubbs, for plaintiff in error.

Oliver & Oliver, W. S. Gonnemt, contra.


text:
    11084.
    Hart v. Metropolitan Discount Co.
   Luke, J.

1. Testimony of one whose name appears as the maker of a negotiable instrument, that he signed and delivered it without filling various blanks therein, and with the understanding that the blanks would not be filled until he should consent to the completion of the instrument and its use, and that thereafter, without his knowledge or consent, the blanks were filled in, would not support a plea of non est factum, or constitute a valid defense against á bona fide transferee for value and before maturity.

Decided March 2, 1920.

Complaint; from Marion superior court—Judge Howard. October 27, 1919.

T. B. Baimy, for plaintiff in error. John G. Butt, contra.

(a) When one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss. Civil Code (1910), § 4537. See Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170 (86 S. E. 434).

2. The transferee of a negotiable paper who receives it before it is due can not be affected by any agreement or understanding between other parties to the paper, unless notice of such agreement or understanding is brought home to the transferee.

3. The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded. See Dorris v. Farmers & Merchants Bank, 22 Ga. App. 514 (96 S. E. 450), and cit.

4. The evidence demanded the verdict directed.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11088.
    Westbrook v. Griffin.
    Decided March 2, 1920.
    Complaint; from city court of Americus—Judge Harper. October 22, 1919.
    The suit was for a sum alleged to be due as a commission on the sale of certain land. The writing referred to in the decision was as follows: “Americus, Ga., March 24, 1917. I hereby agree to place with P. B. Williford and T. B. Westbrook, and make them sole agents for a term of six months, the following property for sale, and if the same is sold by them, directly or indirectly, or by myself, I agree to pay them a commission of 5%, provided sale is made by Sept. 1st, 1917. Schedule of farm property: 643 acres at $20.00 per acre, in 26th district Sumter county, Ga. Lot No.acres in cultivation,-acres in woods. Signed: F. W. Griffin.” The petition alleges, that the defendant, F. W. Griffin, is indebted to the plaintiff, T. B. Westbrook, in the sum of $646, by reason of the following facts: On May (?) 24,1917, the defendant employed the plaintiff and P. B. Williford, who were then engaged in the business of real-estate brokers, to sell for the defendant certain lands of the defendant, being 643 acres known as “the Griffin place,” situated in the 26th district of Sumter county,' Georgia, composed in part of lots of land Number 171, 172, and 173, agreeing with the plaintiff and said Williford, in consideration of their engaging to sell said land, if said land should be sold by them, directly or indirectly, or by the defendant, he was to pay them a commission of 5%, provided the sale should be made on or before September 1st, 1917; the price at which the plaintiff and Williford were authorized to sell said land was $20 per acre, and they should have the sole right of selling the land during the term of six months from the date of the employment. The plaintiff and Williford accepted said employment on the terms made, and undertook to sell said land under the terms indicated. Among those to whom they undertook to sell the land was J. E. D. Shipp. The defendant, in June, 1917, while the said contract and agreement was in force, sold the said land to said Shipp at a price less than $20 per acre; the exact amount the plaintiff is not advised of. The sale has been consummated and possession of the land has been delivered to the said Shipp. After this sale the plaintiff and Williford made a demand on the defendant for the commissions due under the terms of said employment, the defendant having sold the land to their customer; but the defendant declined to make a settlement with them. The said Williford, on June 21, 1917, assigned in writing his rights to the commissions under the said contract of employment to the plaintiff, and by reason of said assignment the plaintiff is entitled to recover of-the defendant the said sum of $646. A memorandum of said contract of employment was reduced to writing, though not intended to speak the whole contract. A copy of said memorandum is attached to the petition. On the paper here referred to is an assignment as follows: “For value received, I hereby transfer to T. B. "Westbrook any and all rights I may have under and by virtue of this contract, and he is hereby authorized to collect all commissions due thereon. June 21st, 1917. P. B. Williford.”
   Luke, J.

Where only a part of a contract is reduced to writing and it does not purport to contain all the stipulations of the contract, parol evidence would be admissible to prove other parts of the contract or to fill blanks in the writing not inconsistent with the writing itself. See Civil Code (1910), § 5791; Forsyth Manufacturing Co. v. Castlen, 112 Ga. 211 (37 S. E. 485, 81 Am. St. R. 28); Bond v. Perrin, 145 Ga. 208 (88 S. E. 954). The petition in this ease, being a suit upon a contract partly in writing and partly in parol, and the parol part not being inconsistent with the writing, set forth a cause of action, and was not subject to the general demurrer which was sustained by the court.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.

The demurrer was on the following grounds: (1) The petition does not clearly, fully, and distinctly set forth a cause of action. (2) The plaintiff states that there was an oral contract, and attaches to the petition a written contract; hence he can not recover on the oral contract set forth. (3) The plaintiff sues on an oral contract and sets out what he calls a memorandum of a contract in writing with P. B. Williford and T. B. Westbrook, and it is this memorandum that is alleged to have been transferred by Williford to Westbrook; therefore the plaintiff fails to show any right to recover on the contract sued on in his own name. (4) There is a misjoinder of parties plaintiff, it being alleged in the petition that the contract was made with Williford and Westbrook, and no legal assignment of the contract being set out. (5) There is no sufficient description of the property, and the contract is therefore void. (6) Paragraph 2 (which states the contract) is demurred to on the ground that the description therein set out is too indefinite and vague to be the basis of a recovery. (7) The allegation as to the sale to Shipp is demurred to, and it is asked that the exact date of the sale be set out. The court adjudged that “said demurrer” be sustained and the case be dismissed.

Maynard & Williams, for plaintiff. Wallis & Fort, for defendant.


text:
    11091.
    CITIZENS BANKING CO. v. JONES.
    There being evidence in support of the verdict, and the only question before this court being as to the sufficiency of the evidence to authorize the verdict, which was approved by the trial judge, his judgment overruling the motion for a new trial must be affirmed.
    Decided March 2, 1920.

      Complaint; from city court of Eastman—Judge Enox presiding. September SO, 1919.

      Roberts & Smith, W. M. Clements, for plaintiff in error.

      W. A. Wooten, O. J. Franklin, contra.
   Luke, J.

This case is here upon the general ground that the evidence does not authorize the verdict, the special ground being without merit and having been virtually abandoned in the brief of counsel for plaintiff in error. The plaintiff’s evidence amply authorizes, if it does not demand, a verdict in his favor. The evidence of the defendant likewise is as strong in its favor.' The record shows there have been two trials of the case. On the first trial a verdict was rendered for the plaintiff, and on the second trial a like verdict was rendered. The court granted the defendant a new trial in the first instance, and refused a new trial in the second instance. The judge unqualifiedly approved the verdict upon the second trial, in the exercise of his discretion, by overruling the motion for a new trial. Where the only question raised by a motion for á new trial is as to the sufficiency of the evidence to support the verdict, and where there is evidence to authorize the verdict, and the finding of the jury is approved by the trial court, this court under the uniform rulings .of the Supreme Court and of this court must affirm the judgment overruling the motion.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11093.
    CLAY v. THE STATE
    A verdict of guilty of “attempt to make liquor,” where the indictment charged that the defendant “did'unlawfully distil, manufacture, and make spirituous liquors, malted liquors, mixed liquors and beverages, a part of which is alcoholic,” was not subject to attack by motion in arrest of judgment, on the ground that the defendant was found guilty “not of the offense charged, but of attempt to distil,” and that there was no such offense under the law of this State.
    Decided March 2, 1920.
    Indictment for manufacture of liquor; from Hancock superior court—Judge Park. October 17,1919.

      Robert H. Lewis, for plaintiff in error.

      Poyty Campbell, solicitor-general, contra.
   Bloodworth, J.

The indictment in this case charged that the accused “did unlawfully distil, manufacture, and make spirituous liquors, malted liquors, mixed liquors and beverages, a part of which is alchoholic.” The verdict was, “We, the jury, find the defendant guilty of attempt to make liquor.” The defendant filed a motion in which he alleged that the judgment should be arrested because it “appears on the face of the record that he was presented by the grand jury and tried for the offense of distilling, and that the jury found him guilty not of the offense charged, but of attempt to distil,” and “there is no such offense known to the laws of Georgia as that of which he stands convicted.” This motion was overruled and the movant excepted.

Section 1061 of the Penal Code (1910) is as follows: “Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt.” This court has held that “generally the word 'liquor’ implies 'intoxicating liquors.’ ” Smith v. State, 11 Ga. App. 118 (1) (86 S. E. 283), and cit. It is established law in this State that “A verdict is to be given a reasonable intendment, and, when ambiguous, may be construed in the light of the issues actually submited to the jury under the charge of the court; and if, when so construed, it expresses with reasonable certainty a finding supported by the evidence, it is to be upheld as legal.” Barbour v. State, 8 Ga. App. 27, 28 (68 S. E. 458), and cit. In Warren v. State, 12 Ga. App. 695 (18 S. E. 202), the 2d paragraph of the decision is as follows: “On the trial of an accusation of larceny from the house, the jury found the following verdict: 'We, the jury, find the defendant not guilty 4s charged in the bill of indictment, but guilty of an attempt to commit larceny.’ Held: Verdicts must not be avoided unless from necessity; and giving to this verdict a reasonable construction, the jury intended to find the accused guilty of an attempt to commit the crime charged in the accusation, to wit, larceny from the house, and not an attempt to commit simple larceny. Civil Code (1910), § 5921.” Judge McCay, in Arnold v. State, 51 Ga. 145, 146, said: “Verdicts are to have a reasonable intendment and to receive a reasonable construction, and are not to be set aside unless from necessity: Code 3561 [§ 1059 of the Penal Code of 1910] ; 17 Ga. 361; 39 Ibid. 664. And this is the general spirit of the code, as well as the expression of the more universal tendency of jurisprudence towards freedom from that slavish adherence to technical nicety which is the reproach of the common law. In every verdict there must be a reference to the indictment and the issue to make it have any meaning. The verdict is the response of the jury to the charge and to the issue formed upon it.” See also Autrey v. State, 23 Ga. App. 143, 144 (97 S. E. 753); Espy v. State, 19 Ga. App. 743 (92 S. E. 229); Kidd v. State, 10 Ga. App. 149 (75 S. E. 266); Wilson v. State, 62 Ga. 167.

Under the above rulings the court properly overruled the motion in arrest of judgment.

Judgment affirmed.

Broyles, C. J., and Buhe, J., concur.


text:
    11102.
    DAVIS v. TOWN OF GIBSON.
    The allegation that the judgment rendered by the mayor was “contrary to law and unauthorized by the charter of the Town of Gibson” was too indefinite and presented no question for adjudication.
    The alleged excessiveness of the sentence infposed by the mayor was no ground for the grant of a new trial on certiorari.
    The petitioner for certiorari did not comply with all the conditions precedent to the sanction of a certiorari.
    The court did not err in “overruling and dismissing” the certiorari.
    Decided March 2, 1920.
    Certiorari; from Glascock superior court—Judge Walker. September 27, 1919.
    The petition for certiorari alleges:. “Petitioner has complied with the law regarding certiorari from municipal or police courts, and has filed his bond, approved by the mayor who tried said case, in the sum of one hundred dollars, payable to said municipality, conditioned upon the appearance of the defendant to abide the final judgment or sentence of the court in said case.” No copy of the bond appears in the record.' The mayor’s certificate states that the petitioner “has filed with me his bond approved by me, in the sum of one hundred dollars, to abide the final order, judgment, or sentence of the court in said ease.”

      M. L. Felts, for plaintiff in error. E. B. Rogers, contra.
   Bloodworth, J.

Plaintiff in error was arraigned before the mayor of the Town of Gibson on the charge of violation of an ordinance which prohibited the running of automobiles in the town at a greater rate of speed than fifteen miles per hour. There was a judgment of guilty and the court sentenced the accused to “pay a fine of $25 and cost, or serve 30 days in jail.” An application for certiorari was made, and upon the hearing the judge of the superior court ordered “that the certiorari be overruled and the same dismissed.” This ruling is before us for review. The petition alleges error as follows: 1st. “Because said judgment was not authorized by the evidence.” 2d. “Because said fine and sentence was excessive.” 3d. “Because said judgment was contrary to law and unauthorized by the charter of the Town of Gibson.” The last of these alleged errors we cannot consider, because (a) An assignment of error that “said judgment is contrary to law” presents no question for adjudication. Callaway v. Atlanta, 6 Ga. App. 354 (2), 355 (2) (64 S. E. 1105), and cit. (5) That the judgment is “unauthorized by the charter of the Town of Gibson” is too indefinite, and presents nothing for determination by this court. The Civil Code (1910), §5183, provides that a petition for certiorari shall “plainly and distinctly set forth the errors complained of.” This ground does not attempt to point out how or in what way the judgment is “unauthorized by the charter of the Town of Gibson.” Besides, this point is raised for the first time in the petition for certiorari. In Masters v. Southern Express Co., 23 Ga. App. 642 (1) (99 S. E. 144), it was said: “The writ of certiorari lies for the correction of errors committed by the trial court. Accordingly, the writ may not for the first time raise a point which should have been raised before the trial court, and on which that court should have been given an opportunity to rule at the time of trial.” The second assignment of error is not such as would authorize the grant of a new trial. “If there has been a lawful verdict of conviction rendered in a criminal ease, an error committed by the judge in the imposition of the sentence will be no sufficient reason for setting aside the verdict and trying the accused again upon the question of his guilt or innocence.” Sable v. State, 22 Ga. App. 769 (97 S. E. 271), and cit. In addition to the above, the petition for certiorari did not comply with all the conditions precedent to the sanction of a certiorari, stated in Gillespie v. Mayor & Council of Macon, 19 Ga. App. 1 (90 S. E. 970). The court did not err in “overruling and dismissing” the certiorari.

Judgment affirmed.

Broyles, C. J., and Luhe, J., concur.


text:
    11103.
    Davis v. Town of Gibson.
    Decided March 2, 1920.
    Certiorari; from Glascock superior court—Judge Walker. September 37, 1919.

      M. L. Felts, for plaintiff in error. E. B. Rogers, contra.
   Bloodwoeth, J.

The questions raised in this case are identical with those in Davis v. Town of Gibson, No. 11102, ante, 813, and are controlled by the rulings in that case.

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.


text:
    11104.
    Burlington v. Fields.
    Decided March 2, 1920.
    Complaint; from Turner superior court—Judge Eve. September 1, 1919.

      Crum & Jones, W. T. Williams, for plaintiff.

      Eldridge Cutts, J. W. Hay'good, for defendant.
   Luke, J.

This case was here on a former writ of error-, and was reported in 20 Ga. App. 102 (92 S. E. 653). This court, by its decision then rendered, settled the controlling legal points in the ease. The subsequent trial was had in accordance with that decision, which now is necessarily the law of the case. The evidence submitted did not prove the case as laid in the petition, and it was not error to grant a nonsuit.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Ltjke, J.

text:
    11119.
    Maynard v. Wight.
   Ltjke, J.

A motion is made to dismiss the bill of exceptions in this ease, upon the ground that it was not served within the time required by the Civil Code (1910), § 6160. Inasmuch as the defendant in error, in his acknowledgement of service, preserved his right to dismiss upon the ground now urged, and the record showing (and by the record this court is bound) that service of the bill of exceptions was not had in the time required by law, the writ of error must be

Decided March 2, 1920.

Certiorari; from Fulton superior court—Judge Pendleton. September 22, 1919.

Albert Kemper, Thomas E. Scolb, for plaintiff in error.

E. M. Habersham, W. I. Heyward, contra.

Dismissed.

Broyles, G. J., and Bloodworlh, J., concur.


author: Eldridge, Judge.

text:
    A99A1461.
    HORNER v. THE STATE.
    (522 SE2d 483)
   Eldridge, Judge.

A Fulton County jury found Robert Neal Horner guilty of two counts of driving under the influence of alcohol: less safe driver; and excessive blood alcohol concentration. OCGA § 40-6-391 (a) (1), (5). He appeals, raising two jury charge issues. Finding both meritless, we affirm.

1. Horner was tried on two Uniform Traffic Citations (“UTC”) issued by the arresting officer on the offense date of May 22, 1996. See OCGA § 40-13-3. Thus, he claims error in the following charge to the jury:

Now, ladies, if you believe beyond a reasonable doubt that the defendant in City of Atlanta, County of Fulton, State of Georgia, at any time within two years immediately preceding the date of the swearing out of these charges did, in fact, drive under the influence to [the] extent he was less safe, under the influence to the extent he was less safe to drive or did drive under the influence of alcohol with a percentage of 0.152 grams of alcohol in his system, I charge you in that event you would find the defendant guilty.

(Emphasis supplied.) Horner contends that the above-referenced charge “would allow the jury to convict the Appellant if they believed that if at any time during the two years prior to May 22, 1996 the Appellant was driving under the influence.” We disagree.

It is well settled in Georgia law that “evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense.” (Citations and punctuation omitted.) Carpenter v. State, 167 Ga. App. 634, 642 (9) (307 SE2d 19) (1983). In that regard, formal charges are not “sworn out” against a defendant on the date that a UTC is issued, but on the date that it is filed with the clerk of court. State v. Gerbert, 267 Ga. 169-170 (475 SE2d 621) (1996); Clark v. State, 236 Ga. App. 130, 131 (510 SE2d 616) (1999). In this case, the UTCs were filed on June 21, 1996. Accordingly, “[t]he charge given is a correct statement of the law related to the statute of limitation for the offense charged. See OCGA § 17-3-1 (d).” Brantley v. State, 199 Ga. App. 623, 626 (9) (405 SE2d 533) (1991).

Further, “[i]t is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.” (Citations and punctuation omitted.) Brantley v. State, supra. See also Keri v. State, 179 Ga. App. 664, 668 (4) (347 SE2d 236) (1986). Here, the trial court properly charged the jury that the “burden of proof rests upon the State to prove every material allegation of the indictment or, in this case, the uniform traffic citation.” All of the State’s evidence established that the offenses occurred on May 22, 1996, including the Intoxilyzer printout, which was put before the jury as State’s Exhibit 3 and showed the test date as May 22, 1996. Nothing in the evidence indicated that Horner had ever been arrested, charged, or convicted of DUI prior to May 22, 1996. See Worthey v. State, 184 Ga. App. 836-837 (363 SE2d 54) (1987). Thus, we find that the charge as given would not have confused the jury and, consequently, was not error.

2. Likewise, we find no error in the trial court’s charge to the jury regarding reasonable doubt. The court properly instructed the jury as to the State’s burden to prove beyond a reasonable doubt each element of the offenses as charged; the jury’s ability to convict if they believed the charges beyond a reasonable doubt; and the jury’s duty to acquit if they had a reasonable doubt as to Homer’s guilt. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to correctness of same.” (Citation and punctuation omitted.) Mitchell v. State, 225 Ga. App. 26, 28-29 (482 SE2d 419) (1997). We find nothing confusing or misleading about the trial court’s charge on reasonable doubt.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided September 10, 1999.

William C. Head, for appellant.

Joseph J. Drolet, Solicitor, Julie A. Kert, Assistant Solicitor, for appellee.


text:
    A99A1471.
    MALOY v. THE STATE.
    (522 SE2d 490)
   Eldridge, Judge.

John Henry Maloy appeals from a Clayton County jury’s verdict finding him guilty of armed robbery and possession of a firearm during the commission of a crime arising from Maloy’s participation in the June 11, 1997 armed robbery of the E-Z Serve convenience store on Tara Boulevard in Jonesboro, Clayton County. We affirm the conviction.

1. Maloy first challenges the sufficiency of the evidence introduced against him. We find this challenge meritless. A detailed statement of the facts of this case may be found in this Court’s affirmance of the conviction of Maloy’s co-defendant, Nicholas Mapp. Mapp v. State, 237 Ga. App. 611 (516 SE2d 322) (1999). In addition to the facts related therein, the E-Z Serve cashier positively identified defendant Maloy, both pre-trial and in-court, as the man who held the gun on her and told her “to open the drawer and give him all the money that was in the register,” which she subsequently did. Accordingly, we find the evidence of record sufficient for a rational trier of fact to have found Maloy guilty of armed robbery and possession of a firearm during the commission of a crime under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Maloy contends that the trial court abused its discretion in denying his motion for severance of defendants. He asserts that because his co-defendants were apprehended at or near the time of the offense and he was not, “the evidence against the Co-Defendants was substantial while the evidence against him was less than substantial,” thereby causing an improper “spillover effect.”

This argument is factually meritless. A review of the record shows that the evidence against Maloy was as substantial, if not more so, than the evidence against either of his co-defendants. The time of Maloy’s arrest does not alter the fact that it was Maloy who was positively identified as the man who had the gun and took the money. We discern no “spillover effect” impacting on Maloy so as to render the trial court’s denial of Maloy’s motion for severance of defendants an abuse of discretion. Hunnicutt v. State, 234 Ga. App. 560, 561 (1) (507 SE2d 802) (1998).

Decided September 10, 1999.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

3. Likewise, we find no abuse of discretion in the trial court’s denial of Maloy’s motion to suppress the victim’s identification based upon a pre-trial photographic lineup. “The dispositive question in resolving this issue is whether the procedure used resulted in a very substantial likelihood of irreparable misidentification.” (Citation and punctuation omitted.) Deal v. State, 233 Ga. App. 79, 80 (1) (503 SE2d 288) (1998). In that regard, Maloy’s only argument is to repeat in a conclusory fashion that the photo lineup was “impermissibly suggestive.” Neither before this Court nor in the court below has Maloy alleged how the photo lineup was impermissibly suggestive or what improper procedures were used that might have resulted in such taint. On review, the record contains no evidence that the photographic display was assembled in an impermissibly suggestive manner, and the victim testified that the police officer made no indication as to whom to select. Accordingly, there was no error. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

       Co-defendant Mapp was not even in the store during the armed robbery, and co-defendant Brian Thornton was found not guilty of the charged offenses.


text:
    A99A1521.
    WEBSTER v. DODSON et al.
    (522 SE2d 487)
   Eldridge, Judge.

Plaintiff Kimberly Webster filed suit against defendants Stein Mart, Inc. and Sharon Dodson as an employee thereof, seeking recovery for assault and battery and intentional infliction of emotional distress. The Chatham County Superior Court granted defendants’ motion for summary judgment, and Webster appeals that judgment. Because Webster’s claims are barred by the exclusivity clause of the Workers’ Compensation Act, OCGA § 34-9-11 (a), we affirm the judgment of the court below.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So viewed, the evidence establishes that defendant Dodson was employed as the Store Manager at the Stein Mart retail store on Abercorn Street in Savannah. Plaintiff Webster was employed therein as the Accessory Department Manager. The two women had a normal working relationship: “My [Webster’s] experience with her [Dodson] was-1 had had no really unpleasant problems with her. It was a normal manager and department manager relationship.”

On February 4, 1997, during the parties’ regular working hours, Dodson was answering a telephone complaint related to an incident that Webster may have witnessed earlier in Webster’s department. Dodson motioned for Webster to stand near her in case Webster had information relevant to the complaint. While listening to the caller, Dodson wrote “complaint” on a piece of paper and showed it to Webster. In response, Webster began speaking to other employees who were present, stating “[fit’s not about me.” At that point, Dodson’s hand made contact with Webster’s shoulder in order to “get her [Webster’s] attention and to tell her to be quiet until I [Dodson] finished the conversation with the complaining customer.” Webster’s shoulder was bruised by Dodson’s contact.

’ After Dodson concluded the telephone conversation, she attempted to talk to Webster about the complaint call. Dodson explained to Webster that “she was on the phone taking a complaint, and if the customer heard [Webster talking,] they would have gotten madder.” However, Webster’s shoulder was “hurting so bad the only thing I [Webster] am thinking about is leaving.” Because of her shoulder pain, Webster left the store shortly after the incident; her husband drove her to the Memorial Medical Center Emergency Department for treatment. The next day, February 5, 1997, Webster saw an orthopedic doctor who prescribed shoulder strengthening exercises. Webster was authorized to return to work on the next day, February 6, 1997, which she did.

However, as a result of the incident, Webster began experiencing headaches, sharp chest pains, sleeplessness, and an inability to eat. Dr. Vernon Bryant diagnosed Webster as having post-traumatic stress syndrome from “going through something traumatic, like I had been through.” Thereafter, Webster obtained psychological counseling and was prescribed Zoloft and Paxil “for nerves.”

Because of emotional strain caused by the incident with Dodson, Webster found it increasingly difficult to continue working at Stein Mart; on April 23, 1997, she resigned. On May 27, 1997, Webster filed suit against the defendants in the Superior Court of Chatham County seeking damages in excess of $180,000. On December 16, 1997, Webster filed a claim with the Workers’ Compensation Board for “[l]eft shoulder contusion and emotional distress,” seeking income benefits and medical benefits “based on an injury at work.” Stein Mart’s workers’ compensation insurer paid $211.44 in medical benefits for Webster’s injury. On September 3, 1998, defendants filed a motion for summary judgment, contending, inter alia, that Webster’s claims were barred by the exclusivity provision of the Workers’ Compensation Act, OCGA § 34-9-11 (a). The trial court granted summary judgment to the defendants. Held:

Under OCGA § 34-9-11 (a), the Georgia Workers’ Compensation Act is now the exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a co-worker. Wall v. Phillips, 210 Ga. App. 490, 491 (436 SE2d 517) (1993). In that regard, “An injury arises ‘in the course of employment’ when it occurs within the period of the employment, at a place where the employee may be in performance of her duties and while she is fulfilling or doing something incidental to those duties.” (Citation omitted.) Hennly v. Richardson, 264 Ga. 355, 356 (1) (444 SE2d 317) (1994).

This bar also applies to intentional torts committed by one worker against a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business. Wall v. Phillips, supra at 491. Thus, if the wilful act of Dodson was directed toward Webster for reasons personal to Webster, then the Workers’ Compensation Act provides no bar to tort liability. OCGA § 34-9-1 (4); Potts v. UAP-GA. AG. CHEM., 270 Ga. 14, 15 (506 SE2d 101) (1998).

Here, the undisputed evidence is that Dodson’s physical contact with Webster arose during Dodson’s attempts to obtain Webster’s cooperation in order to better handle a telephone complaint; handling such complaints is part of a store manager’s job. Thus, Dodson’s actions were directed to Webster because of a work-related activity, occurring during working hours, and arising from the performance of Dodson’s duties in furtherance of Stein Mart’s business. The time, place, and circumstances under which the injury occurred were all work-related. See Potts v. UAP-GA. AG. CHEM., supra at 15-16; Hennly v. Richardson, supra at 355.

Decided September 10, 1999.

Clark & Clark, Fred S. Clark, for appellant.

Howard & Whatley, Molly M. Howard, for appellees.

Moreover, there is no evidence that Dodson’s physical contact with Webster was made for reasons “personal” to Webster. Webster points to evidence in the record where, one month prior to the incident in question, Webster went to Dodson for aid in handling an employee and was unsatisfied with Dodson’s response. However, Webster has produced no evidence of a causal connection between her prior experience with Dodson and the incident in question. In fact, Webster has consistently maintained that, prior to the incident in question, her relationship with Dodson was “respectful.” Even in response to defendants’ motion for summary judgment, Webster claimed that “prior to February 4, 1997, the relationship between Mrs. Webster and Sharon Dodson was just a normal one. There was no reason to believe that Ms. Dodson was angry with Mrs. Webster on that date.”

“Accordingly, we find that the injury to [Webster] arose in the course of and out of her employment and that the exclusive remedies for her claims of [assault and] battery and intentional infliction of emotional distress are under the Georgia Workers’ Compensation Act.” Hennly v. Richardson, supra at 356 (1). The trial court properly granted defendants’ motion for summary judgment.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       An additional claim for tortious interference with employment relations was withdrawn by plaintiff.

       From the record, it is unclear whether benefits were paid voluntarily or following an adjudication of the compensability of the underlying injury.

       Compare Walsh Constr. Co. v. Hamilton, 185 Ga. App. 105 (363 SE2d 301) (1987); City

        of Atlanta v. Shaw, 179 Ga. App. 148 (345 SE2d 642) (1986); Murphy v. ARA Svcs., 164 Ga. App. 859, 863 (298 SE2d 528) (1982).


author: Phipps, Judge.

text:
    A99A1062.
    RUIZ v. THE STATE.
    (522 SE2d 503)
   Phipps, Judge.

Jose Ruiz appeals his 1997 conviction of possession of cocaine with intent to distribute.

In 1993, Ruiz was convicted of possession of cocaine and given a probated sentence. While arresting Ruiz for violation of his probation, DeKalb County police found the cocaine which led to the 1997 conviction. During a pretrial hearing, Ruiz moved in limine to exclude evidence that the officers had found the cocaine while arresting him for the probation violation. The court denied the motion, stating that exclusion of this evidence would make it look “like [the officers] jumped out of an airplane and came down there for no reason at all.” But the court did rule that the prosecution could not show the offense for which Ruiz was on probation.

The prosecution was allowed to offer evidence of Ruiz’s prior conviction of possession of cocaine as a similar transaction. The conviction was proved through the testimony of the arresting officer, DeKalb County Police Officer Dankewich, and through introduction of a certified copy of the conviction and sentence.

DeKalb County Detective Becker later testified that in this case he had been summoned to a motel to assist in Ruiz’s arrest. Detective Becker observed a vehicle arrive at the motel. The driver and her male passenger exited the vehicle and entered the room where Ruiz was supposed to be staying. Becker and another officer went to the room, determined the male passenger was Ruiz, and arrested him. After several hits of crack cocaine were found in Ruiz’s possession during a search incident to his arrest, Becker radioed another officer to do a walkaround of the vehicle with a drug dog. Ruiz’s companion acknowledged the vehicle was hers and consented to a search of it “because there shouldn’t be anything in it,” but then became upset. Ruiz told Becker that on the back floorboard of the car was cocaine which belonged to him. As this conversation was taking place, the dog alerted on an area of the car. During the ensuing search, 13 hits of crack cocaine were found in plastic bags hidden under boxes on the back floorboard behind the driver’s seat.

On direct examination at trial, Ruiz sought to recant his pretrial admission. He testified that the cocaine in the vehicle belonged to his companion and that he was induced to take the blame because he was under the influence of crack cocaine. Over objection, the State on cross-examination sought to impeach Ruiz by showing that he was on probation for the prior cocaine possession offense.

Ruiz charges the court with error in overruling the objection and denying his motion in limine. He contends the testimony the court allowed the State to elicit from him on cross-examination, as well as that given by Detective Becker, impermissibly placed his character in issue.

The court did not err in denying the motion in limine. That Detective Becker and other officers were going to the motel to arrest Ruiz was admissible as part of the res gestae. See Brooks v. State, 199 Ga. App. 525 (1) (405 SE2d 343) (1991); compare Racquemore v. State, 204 Ga. App. 88 (2) (418 SE2d 448) (1992). “[Evidence otherwise admissible does not become inadmissible because it incidentally puts the defendant’s character in issue. [Cit.]” Brooks, supra at 526 (1).

Even if the court had erred in allowing the State to show during its cross-examination of Ruiz that he was on probation for a prior drug offense, the error would be harmless in that the State made the same showing in proving the prior offense as a similar transaction, and Ruiz does not complain of the similar transaction evidence on appeal.

Decided September 13, 1999.

Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A1213.
    ALI v. WORLD OMNI FINANCIAL CORPORATION.
    (522 SE2d 525)
   Phipps, Judge.

Mohammad Ali purchased a car and obtained financing through World Omni Financial Corporation. World Omni repossessed the car after Ali defaulted on payments. Ali sued World Omni. He claimed that its sale of the repossessed vehicle was wrong because he was not given notice of the sale as required by the parties’ contract. Ali sought as actual damages the car’s market value. The trial court granted summary judgment to World Omni based on absence of evidence to support Ali’s damage claim. Ali appeals.

“ ‘The market value of the plaintiff’s property right would be determined by taking the market value of the automobile itself and subtracting therefrom the balance due on the purchase price of the automobile.’ ” Ford Motor Credit Co. v. Hitchcock, 116 Ga. App. 563, 564-565 (3) (158 SE2d 468) (1967); see Ford Motor Credit Co. v. Milline, 137 Ga. App. 585, 589 (2) (224 SE2d 437) (1976). The sum produced by this calculation is commonly referred to as plaintiff’s “equity” in his property. One of the grounds of World Omni’s motion for summary judgment was that the evidence shows without dispute that Ali suffered no actual damages because he had no equity in the car. Although the evidence indisputably shows that the balance due on the vehicle’s purchase price exceeded the proceeds of World Omni’s sale of the vehicle, it does not show the car’s value. In response to World Omni’s motion for summary judgment, Ali presented no evidence of value and, therefore, did not show that he had any equity in the car. For this reason, if no other, World Omni was entitled to summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

World Omni’s failure to give Ali proper notice of the sale bars it from recovering a deficiency judgment. See Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822, 824 (2) (412 SE2d 603) (1991). Although World Omni sought to recover the deficiency in a counterclaim, World Omni did not seek and the court did not grant summary judgment to it on this issue. In fact, the court found that World Omni failed to give Ali the contractually required notice of the sale, and World Omni did not cross-appeal this ruling.

Decided September 13, 1999.

Ian M. Falcone, for appellant.

Mohammad H. Ali, pro se.

Levine & Block, Stephen H. Block, for appellee.

Other issues are moot.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Barnes, Judge.

text:
    A99A1480.
    HARPS v. THE STATE.
    (522 SE2d 504)
   Barnes, Judge.

After a stipulated bench trial, Antwain Maurice Harps was convicted of hijacking a motor vehicle. For the reasons that follow, we affirm.

1. Harps contends that the trial court erred in admitting his written confession because he had invoked his right to counsel and all questioning should have ceased. The trial court conducted a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine the voluntariness of Harps’ confession and whether the statement was taken after Harps invoked his right to counsel.

The interrogating officer testified that prior to taking the statement, she advised Harps of his constitutional rights and proceeded question by question down the standard waiver form. According to the officer, Harps indicated that he fully understood his rights and at no time requested an attorney before making the statement. The officer testified that she did not threaten, coerce, or intimidate Harps or promise anything to him. She attested that at no point did Harps request that the interview cease. During the questioning about the armed robbery of a bank in Griffin, Harps spontaneously injected information about a carjacking he had committed at gunpoint before the bank robbery. Harps provided a detailed confession to a second investigator, describing specifically how he and his cousin committed a car jacking in Clayton County before proceeding to rob the bank. After implicating himself in both crimes, Harps signed a typed copy of his confession which a secretary had transcribed. The second investigator also testified that Harps never asked for an attorney.

Harps testified that although he immediately told the first investigator that he wanted a lawyer, this request was disregarded. He claimed that he informed police that he wanted a lawyer present before answering any questions or signing anything. He asserted that protracted and continuous questioning by local police and federal agents wore him down. By his version of events, Harps did not make his incriminating remarks freely and did not read the statement before signing it. Notwithstanding the testimony of Harps, the court determined that the statement was admissible. The court also noted that it did not find Harps’ testimony believable.

A defendant who invokes the Fifth Amendment right to counsel during a custodial interrogation cannot be subjected to farther questioning until counsel is made available or unless the defendant subsequently initiates communication. Mosher v. State, 268 Ga. 555, 558 (3) (491 SE2d 348) (1997). To protect against violations of the right against self-incrimination, if the suspect invokes his right to counsel, the questioning must cease. Beck v. State, 235 Ga. App. 707, 709 (2) (510 SE2d 368) (1998).

Harps signed and initialed the waiver form indicating that he understood his rights including his right to an attorney. Although Harps now claims that he asked for a lawyer, the officers testified otherwise. Credibility determinations made by a trial court during a suppression hearing must be accepted unless clearly erroneous. Cox v. State, 248 Ga. 713 (1) (285 SE2d 687) (1982). Here, based upon the record before us, we cannot say that the court clearly erred.

2. Harps contends that his written confession was inadmissible because his waiver of rights was not voluntarily and knowingly made. The waiver form, however, shows that Harps signed his name at the bottom and also signed an extremely elaborate confession. The officers testified that Harps seemed to fully understand the situation, spoke freely, and was “very agreeable.” According to Parks, “[Harps] started talking and he just wouldn’t stop.” Because the evidence supports the trial court’s factual finding that the statement was voluntary, we find no error in the court’s ruling. Bright v. State, 265 Ga. 265, 280 (5) (b) (455 SE2d 37) (1995).

Decided September 13, 1999.

Richard Genirberg, for appellant.

Robert E. Keller, District Attorney, Bonnie K Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

       When Harps was apprehended as a suspect in the bank robbery, he possessed money from the bank and a handgun.


author: McMurray, Presiding Judge.

text:
    A99A1511.
    LITTLE TREE, INC. et al. v. FIELDS et al.
    (522 SE2d 509)
   McMurray, Presiding Judge.

Plaintiffs Maryan Fields and Jimmy Clark brought this breach of contract action against defendant Richard Losey, d/b/a Little Tree Construction, seeking to recover $23,700 in expenses allegedly incurred as a result of defendant’s defective and negligent construction of plaintiffs’ residence. Defendant Richard Losey acknowledged service of process but defended in part on the ground that he was not a proper party, because he was at all times acting as an officer of Little Tree, Inc., a Georgia corporation. Pursuant to a consent order entered May 16, 1997, Little Tree, Inc. (“LTI”) was substituted as the proper defendant. The trial court subsequently permitted LTI to file a third-party complaint against Norris A. Garrett, the alleged owner of the real property where the house was built and alleged joint venturer with LTI in its construction. Norris A. Garrett in turn filed a third-party complaint against Richard Losey individually. Richard Losey answered the third-party complaint, again defending on the basis that “[LTI] constructed the home, not Rick Losey individually. . . .” After discovery, plaintiffs moved on December 7, 1998, to amend the complaint by adding Richard Losey individually as a defendant in the main case, contending the corporate defendant LTI was a sham. This motion was made one day before trial.

At the scheduled bench trial, defendant Richard Losey argued it was not equitable to add him at the eleventh hour, since he had been dismissed eighteen months earlier by the consent order substituting LTI as the proper defendant. The superior court took the motion to add Richard Losey individually under advisement subject to a showing of fundamental unfairness but proceeded with the hearing on the basis that Richard Losey would be a defendant individually. The superior court ultimately determined that both LTI and Richard Losey individually were proper defendants, and that the corporate veil should be pierced in this case. The superior court granted judgment in favor of plaintiffs, awarding them $22,113 but declined to award attorney fees for bad faith or stubborn litigiousness. This appeal followed. Held:

1. Defendants first contend the trial court erred in granting plaintiffs’ motion to add Richard Losey individually as a party defendant, arguing plaintiffs failed to meet the three-prong test outlined in Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326 (436 SE2d 63).

(a) For purposes of this appeal, we assume without deciding that the four-year statute of limitation established by OCGA § 9-3-26 had expired by the time plaintiffs moved on December 7, 1998, to add Richard Losey individually. Compare Benning Constr. Co. v. Lake-shore Plaza Enterprises, 240 Ga. 426 (241 SE2d 184) (six-year limitation on warranty action arising from written construction contract).

(b) Parties may be dropped or added by order of the trial court or of its own initiative at any stage of the action and upon such terms as are just. OCGA § 9-11-21. This requires the exercise of discretion by the court. Robinson v. Bomar, 122 Ga. App. 564, 566-567 (2) (177 SE2d 815) (overruled as to Division 1 in Robinson v. A. Constr. Co., 132 Ga. App. 591-592 (208 SE2d 605), and overruled as to Division 5 in Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 766 (2) (227 SE2d 397)). There is no requirement that the proposed defendant be given notice of any such motion to add, although notice shall be given to existing parties. Humble Oil &c. Co. v. Fulcher, 128 Ga. App. 606, 608 (1) (197 SE2d 416). But where the statute of limitation has run as against the proposed additional defendant, OCGA § 9-11-15 (c) authorizes the addition of a new party and relation back only if: (1) the amended claim against the new defendant arises out of the same facts as the original complaint; (2) the new defendant had sufficient notice of the action; and (3) the new defendant knew, or should have known, that but for a mistake concerning his identity as a proper party, the action would have been brought against him. Doyle Dickerson Tile Co. v. King, 210 Ga. App. at 327, supra. In the case sub judice, defendant Richard Losey conceded the claim against him individually arises out of the same set of facts as the original complaint as against LTI. The second prong, notice of the action, is established by the fact that Richard Losey personally acknowledged service of the original complaint against himself individually, d/b/a Little Tree Construction, and by the fact that he answered the third-party complaint against him personally. As to the third prong, whether defendant knew or should have known, that but for a mistake concerning the proposed defendant’s identity as a proper party, the action would have been brought against him, the applicable rule is Richard Losey could be personally liable for LTI’s negligent construction because he knew he specifically directed or participated in the construction. Jennings v. Smith, 226 Ga. App. 765, 766-767 (1) (487 SE2d 362). Consequently, Richard Losey individually is a proper party to this negligent construction claim. The original complaint in fact named Richard Losey individually due to uncertainty over LTI’s status as an active corporation. Despite the eighteen-month interval between the substitution of LTI for Richard Losey, the superior court did not abuse its discretion in granting plaintiffs’ eleventh-hour motion to amend and add Richard Losey as a party defendant. Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211).

2. Next, defendants contend the trial court’s award of $22,113 is excessive and not supported by the evidence. Specifically, they object to the award of $15,900 to repair a foundation block wall and correct basement dampness and further object to $3,280 to repair cabinets, arguing plaintiffs’ evidence regarding replacement amounts to an upgrade in the contract.

(a) In all nonjury trials in courts of record, the trial court’s “[bindings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52 (a). A factual determination is not “clearly erroneous” if it is supported by “any evidence.” Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga. App. 662, 664-665 (1) (197 SE2d 749).

“The question of damages being one for the jury, a reviewing court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” OCGA § 13-6-4.

Plaintiffs introduced expert opinion testimony regarding the costs to cure defendants’ negligent construction, through the deposition of John Stoddard, a witness expressly deemed credible by the superior court. His estimate of $15,900 to fix the foundation block wall included the labor and materials to excavate the perimeter of the left side of the house and sections of the front and back; frame the basement wall to support the house; remove all damaged areas of existing block wall and install new block with reinforcement wire; waterproof front, side and back wall on both the interior and exterior; and backfill and landscape after the wall has cured. Based on his 25 years of experience, taking into consideration the time involved, the materials, profit and overhead, Stoddard confirmed that his estimates were reasonable.

The superior court’s award of $15,900 to repair the foundation block wall is supported by the expert opinion evidence and, consequently, is not clearly erroneous. Allen v. Cobb Heating &c. Co., 158 Ga. App. 209, 211 (279 SE2d 505). It is not necessary that the party seeking specific damages submit exact figures, provided the estimate is not merely guesswork. Nat. Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725, 726 (1) (72 SE 191).

Decided September 13, 1999.

William T. Cox, Jr., for appellants.

T. Michael Flinn, for appellees.

(b) Generally, the proper measure of damages for defective workmanship is the cost to repair the defect. Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913). Defendants object to the superior court’s award of $3,280, arguing this amounts to a major upgrade in the contract.

The undisputed evidence was that the cabinet doors were hung improperly, in that they were separated from the wall and from each other, were not level and straight, and did not align when closed. Stoddard’s estimate provided for $3,280 to acquire and install new cabinet doors, finished, and new hinges. Contrary to defendants’ contentions, this does not amount to an entire new set of kitchen cabinets. This item of damages is supported by evidence, is consequently not clearly erroneous, and is therefore affirmed.

(c) Remaining contentions have been considered and are found to be without merit.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur in the judgment only.