author: Andrews, Judge. Beasley, Judge, Birdsong, Presiding Judge,

text:
    A92A0152.
    In the Interest of S. L. H., a child.
    (422 SE2d 43)
   Andrews, Judge.

The State appeals the order of the juvenile court granting the plea in bar of S. L. H., premised solely on alleged violation of the prohibitions of OCGA § 16-1-8 (a) (2).

Although no transcript of the proceedings at issue has been provided for our review, the transcript of the hearing on the plea in bar reveals that a juvenile petition alleging that S. L. H. was delinquent by virtue of having committed acts which, if done by an adult, would have been aggravated assault, armed robbery, and theft by taking of a motor vehicle. A first hearing was held and the case continued for a week because new counsel was appointed for S. L. H.

On May 31, 1991, at the second hearing, both sides announced ready; all witnesses were sworn; and the first witness took the stand. This witness had been charged with crimes in superior court for the same acts forming the basis of S. L. H’s delinquency petition. The juvenile court therefore asked the witness only preliminary questions about his status and apparently determined that the witness’ counsel should be present despite the fact that the witness had agreed to testify after being advised of his Fifth Amendment rights. However, because the witness could not tell the court if he had legal representation, the judge gave the State one hour to make this determination and contact counsel. A timely determination could not be made and the State understood the judge to rule that the witness would not be allowed to continue with his testimony despite the waiver of his Fifth Amendment rights. The State therefore moved for a continuance which the judge granted over the objection of S. L. H. The judge apparently stated the case was “continued or adjourned by the court to be reconvened” to allow the State to resolve the issue with the witness.

During the hearing on the plea in bar, the juvenile court labelled as “accurate” the State’s summarization of the events at the original proceeding, including the State’s assertion that the witness was ready to testify, but the juvenile court “felt that we did need to speak to his counsel to be aware of what Fifth Amendment rights would be of the [witness]” and that “it was merely ... a continuation of [the hearing at which the witness was called] and was not one where [the juvenile court] entered some type of adjudication.” The juvenile court also described the events as “we stopped for awhile. Now we’re picking it up again.” But later the court indicated that, without the testimony of this witness, he did not believe the State had a case that day, since another individual also charged and represented by counsel had decided not to testify. The juvenile court concluded at the hearing on the motion that the State “asked for a continuance . . . either you needed to fold your tent and leave and say, we’re going to dismiss it or you’ve got to ask for a continuance because you can’t prove your case.”

The delinquency hearing reconvened 39 days later, on July 9, 1991, when the hearing on the .plea in bar was held on S. L. H.’s claim that it was a violation of OCGA § 16-1-8 (a) (2) to hear the matter after it was continued. The juvenile court dismissed the case based on that section on the ground that it had been “terminated improperly.”

It must first be determined whether OCGA § 16-1-8 (a) (2), which speaks of “prosecution,” “crime,” “conviction,” and “acquittal,” is applicable to juvenile proceedings.

OCGA § 15-11-38 (a) provides that “[a]n order of disposition or other adjudication in a proceeding under this article is not a conviction of a crime.” Treatment and rehabilitation rather than punishment are the goals when delinquency is established. OCGA §§ 15-11-2 (7) and 15-11-1. “The juvenile court is a civil court, not a criminal court. . . . [0]ne under the prescribed age ... is not prosecuted as a criminal, but is dealt with as the law provides for juveniles who violate the law.” K. M. S. v. State of Ga., 129 Ga. App. 683, 684 (200 SE2d 916) (1973).

The legislative history of OCGA § 16-1-8, part of which is contained in Marchman v. State, 234 Ga. 40, 42 (215 SE2d 467) (1975) reversing Marchman v. State, 132 Ga. App. 677, 681 (209 SE2d 88) (1974), gives no indication that it was to apply also to juvenile proceedings. See Ga. Code Ann. § 26-507, Committee Notes. See also the minutes of the meetings of the Criminal Law Study Committee formed in 1961, housed in the State Archives. “[I]t is clear from the entire statute that the General Assembly sought to treat matters of juvenile delinquency as a class of conduct separate and distinct from conventional criminality.” T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (1) (212 SE2d 650) (1975).

However, as this court acknowledged in that case, “From [the Juvenile Court Code] and the decisions we conclude that the juvenile charged with ‘delinquency’ is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. We must not only furnish the ritual of justice, but we must provide its substance.” Id. at 899. (Emphasis supplied.)

Relying on T. L. T., this court in In the Interest of J. H. M., 202 Ga. App. 79, 80 (413 SE2d 515) (1991) found that the evidentiary rule in OCGA § 24-4-8 applies to juvenile delinquency proceedings. This conclusion is buttressed by OCGA § 24-1-3, which provides that the rules of evidence apply in all courts and in all trials unless otherwise expressly provided by statute. This rationale is not available for the construction of OCGA § 16-1-8.

That section “sets out in detail when a second prosecution is barred. These are matters of procedure. They prevent an accused from being unduly harassed by or threatened by successive criminal prosecutions.” (Emphasis supplied.) State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475) (1974). “The 1968 Georgia Criminal Code has expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions.” Id. at 317.

While the constitutional protections against double jeopardy apply to juvenile proceedings, the additional and expanded statutory protections afforded by OCGA § 16-1-8 (a) (2) do not rise to the level of “those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial.” T. L. T., supra at 898 (2). See generally J. H. M., supra at 81. (Andrews, J., dissenting.)

Judgment reversed.

Carley, P. J., Pope and Johnson, JJ., concur. Sognier, C. J., Beasley and Cooper, JJ., concur specially. McMurray, P. J., and Birdsong, P. J., dissent.

Beasley, Judge,

concurring specially.

I agree with the reversal of the judgment. But I concur with Division 1 of Presiding Judge Birdsong’s dissent. However, I do not concur in its Division 2, which relates to the application of the statute in this case.

1. First, a note about the dissent’s Division 1. The court dismissed the petition after concluding that “the former prosecution . . . was terminated improperly.” It is notable that the juvenile’s “plea in bar,” a device used in criminal proceedings, sought dismissal on the grounds of the Fifth Amendment to the United States Constitution and the statute, OCGA § 16-1-8 (a) (2). There was no pursuit of, nor ruling on, the federal constitutional claim, so the sole preliminary issue is whether this statute governing criminal procedure applies to proceedings pursuant to OCGA § 15-11-28 on petitions alleging delinquency under OCGA § 15-11-25 in juvenile court.

Although I surmised in Smith v. State, 173 Ga. App. 728, 732 (327 SE2d 839) (1985), Beasley, J., concurring specially, that because of the language in OCGA § 16-1-8 and its focus, it did not apply to juvenile delinquency proceedings, I agree with the further analysis and conclusion in this case that it does.

2. Applying OCGA § 16-1-8, the record shows that the proceeding on May 31 on the petition alleging delinquency was not “terminated improperly.” It was a delay while the state undertook the court-required investigation into who, if anyone, represented the witness and to have that attorney counsel the witness on his Fifth Amendment rights before he testified. What occurred was akin to the circumstances in Sessions v. State, 131 Ga. App. 379 (206 SE2d 99) (1974). A continuance to afford counsel an opportunity to comply with the court’s direction was held not to show a termination and attempt to retry the defendant so as to jeopardize her twice.

At the outset of the hearing on the “plea in bar,” the court characterized the earlier proceeding to have been “either continued or adjourned by the Court to be reconvened ... I think at that time I said I’d give the State the benefit of an adjournment and to reconvene the case if there is a distinction in those.” After the assistant district attorney summarized the earlier proceeding, the court stated: “[W]e stopped for awhile. Now we’re picking it up again.” The court reiterated that what caused the cessation at that time was that it would not permit the witness to testify before first being advised by counsel regarding the ramifications of self-incrimination.

A trial court has discretion to grant a continuance. Vining v. State, 195 Ga. App. 816, 817 (2) (395 SE2d 17) (1990). This extends even after the movant has announced ready at trial, Bennett v. State, 186 Ga. App. 832 (2) (368 SE2d 789) (1988), and after issue is joined. Whatley v. State, 162 Ga. App. 106 (290 SE2d 316) (1982). The trial court was aware of this authority but apparently finally concluded that the continuance was a “termination.” But the two are not the same. As in Barner v. State, 139 Ga. App. 50 (1) (227 SE2d 874) (1976), the juvenile proceeding was not “terminated” but merely continued until the precondition which the court sua sponte put on the witness’ testimony could be met. Cf. Paquin v. Town of Tyrone, 261 Ga. 418 (405 SE2d 497) (1991). “A postponement, like a continuance, is not a ‘termination’ of the proceedings within the meaning of OCGA § 16-1-8 (a) where . . . the trial is resumed before the same jury” or, as here, delinquency proceeding resumed before the same judge. Knight v. State, 197 Ga. App. 250, 252 (5) (398 SE2d 202) (1990). Lumley v. State, 184 Ga. App. 898 (363 SE2d 69) (1987), is an example of cases terminated by the declaration of a mistrial, which is not the case here.

Even assuming the cessation of the hearing on May 31 constituted a “termination” within the contemplation of the statute, it was not terminated “improperly.” What prompted it was the court’s concern that the witness, who was present and willing to testify, might incriminate himself. The court refused to allow the state to proceed with the testimony of this witness until counsel could be produced to assure a waiver of Fifth Amendment privilege. The court put a precondition on this witness’ testimony and, since the state was not obliged to have foreseen it, some time to meet it. The witness did not even know if he had an attorney, and the state was unable to determine immediately who it was, if he had one, and to obtain that person’s presence. Allowing a delay so as to assure that a witness’ constitutional right is protected is not an “improper termination” of the hearing. It was the court’s concern, not the state’s unpreparedness or inability to produce its witnesses, which occasioned the recess.

It is undisputed that the court had determined that it was not possible to proceed because the witness’ attorney was not present. Assuring such counsel’s presence was not the state’s obligation so it cannot be charged with creating the continuance it was forced to seek because of the necessity for that witness’ testimony. Although the absence of the witness’ counsel may not fall within the category of proceedings terminated because of physical impossibility, OCGA § 16-1-8 (e) (2) (A), or any of the other four statutory instances of proper terminations because of necessity, the list is not exclusive. It merely specifies certain foreseen circumstances of termination which the legislature deemed not improper. Although both the State and the juvenile were ready to proceed, the court deemed it necessary to first assure that the witness was adequately counseled on his waiver of the right against self-incrimination. Given the interests of the public and of the juvenile to be served by proceeding to completion without interruption, such a reason is a valid one and takes a corresponding place alongside the four statutory instances.

The petition alleging delinquency should not have been dismissed.

I am authorized to state that Chief Judge Sognier and Judge Cooper join in this special concurrence.

Birdsong, Presiding Judge,

dissenting.

I am gratified that five judges agree that double jeopardy rights given to adults likewise casts a mantle of protection over juveniles. While I do not applaud the manner in which the trial judge is reported to have conducted the initial proceedings, nevertheless for reasons hereinafter stated, I find that not only does double jeopardy apply but there clearly exists an inadequate record to reverse the trial judge.

1. We in dissent have found no appellate cases where OCGA § 16-I- 8 was applied to juvenile delinquency proceedings, and the pertinent subsection of the statute, which refers to “prosecution” and “crime” does not expressly address juvenile delinquency proceedings. OCGA § 16-1-8 (a). The legislature instead has expressly circumscribed the uses and effects of such proceedings, including the provision that “[a]n order of disposition or other adjudication in a proceeding under this article is not a conviction of a crime.” OCGA § 15-II- 38 (a). See also K. M. S. v. State of Ga., 129 Ga. App. 683, 684 (200 SE2d 916). Treatment and rehabilitation rather than punishment are the goals when delinquency is established. OCGA §§ 15-11-2 (7); 15-11-1. As noted in K. M. S., “[t]he juvenile court is a civil court, not a criminal court. . . . [0]ne under the prescribed age ... is not prosecuted as a criminal, but is dealt with as the law provides for juveniles who violate the law.” Id. at 684.

The legislative history of OCGA § 16-1-8, some of which is contained in the two Marchman opinions (Marchman v. State, 234 Ga. 40, 42 (215 SE2d 467) (reversing the Court of Appeals) and Marchman v. State, 132 Ga. App. 677, 681 (209 SE2d 88)) gives no indication that it was to apply also to juvenile proceedings. See Ga. Code Ann. § 26-507, Committee Notes. See also the minutes of the meetings of the Criminal Law Study Committee formed in 1961, which are housed in the State Archives. “ [I]t is clear from the entire statute that the General Assembly sought to treat matters of juvenile delinquency as a class of conduct separate and distinct from conventional criminality.” T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (1) (212 SE2d 650).

Nevertheless, this court acknowledged in T. L. T.\ “From [the Juvenile Court Code] and the decisions we conclude that the juvenile charged with ‘delinquency’ is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. We must not only furnish the ritual of justice, but we must provide its substance.” (Emphasis supplied.) Id. at 899.

That was the foundation for the holding in In the Interest of J. H. M., 202 Ga. App. 79, 80 (413 SE2d 515), that the evidentiary rule in OCGA § 24-4-8 applies to juvenile delinquency proceedings. Of course, this construction was aided by the applicability rule of OCGA § 24-1-3, which provides that the rules of evidence apply in all courts and in all trials unless otherwise expressly provided by statute, which type of statutory basis is not available for the construction of OCGA § 16-1-8. But the fundamental jurisprudential principles underlying the prohibition against procedural double jeopardy cannot be ignored.

OCGA § 16-1-8 “sets out in detail when a second prosecution is barred. These are matters of procedure. They prevent an accused from being unduly harassed by or threatened by successive criminal prosecutions.” State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475). Although as a whole the Georgia statutory double jeopardy provisions have “expanded the proscription of double jeopardy beyond that provided for in the United States and [the pre-1976 and 1983] Georgia Constitutions” (State v. Estevez, supra at 317), the principle of protecting an accused, be that person a juvenile or an adult, from unwarranted government harassment is basic. See Benton v. Maryland, 395 U. S. 784 (89 SC 2056, 23 LE2d 707); Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416). The Fifth Amendment (the Georgia constitutional right, which is given in 1983 Ga. Const., Art. I, Sec. I, Par. XVIII, was not invoked by appellant) protects life and liberty from double jeopardy to a degree which, compared with the Georgia statutes, is the minimum. Yet even the Fifth Amendment Double Jeopardy Clause applies to juvenile delinquency proceedings. Breed v. Jones, 421 U. S. 519 (95 SC 1779, 44 LE2d 346). The reason is that with respect to the potential consequences of a delinquency proceeding, such as the stigma inherent in a determination of delinquency, the deprivation of liberty for many years, and the anxiety, insecurity, and heavy personal strain and burdens of a juvenile’s defense, “there is little to distinguish an adjudicatory hearing . . . from a traditional criminal prosecution.” Id. at 530.

Due process is a fundamental common law jurisprudential principle, and it is this principle which is embodied in and implemented by OCGA § 16-1-8 (a) (2). It is a concept of fundamental fairness not to allow a second proceeding when the first was “improperly terminated,” in the words of the statute. We agree with the United States Supreme Court that this type of double jeopardy prohibition represents a fundamental ideal of due process. Benton, supra at 794.

We therefore conclude that OCGA § 16-1-8 (a) (2), which prohibits re-prosecution when the former prosecution was “terminated improperly,” applies to the proceedings on petitions asserting juvenile delinquency.

2. Although a transcript of the proceedings at issue has not been forwarded by the State for appellate review, the transcript of the hearing on appellant’s plea in bar reveals the following facts: A juvenile petition alleged that S. L. H. committed aggravated assault, armed robbery, and theft by taking a motor vehicle. A first hearing was held and the case was continued for a week when new counsel was appointed for appellant. At the second hearing, on May 31, 1991, both sides announced ready; the judge swore all witnesses, and the first witness took the stand. The witness was found to be a co-defendant in superior court on the charges, and the juvenile judge apparently asked him only preliminary questions about his status. Thereafter, the juvenile judge appears to have determined the witness’ counsel needed to be present notwithstanding the witness had agreed to testify after being advised of his Fifth Amendment rights. The judge then gave the State one hour to determine if the witness had legal representation and, if so, to contact his counsel. The State could not contact the counsel. The State understood the judge to rule that the witness would not be allowed to continue with his testimony, waiver of Fifth Amendment rights notwithstanding. The State moved for a continuance which the judge granted over appellant’s objection. The judge apparently stated the case was “continued or adjourned by the court to be reconvened” to allow the State to resolve the issue with the witness and continue with the case.

Appellee asserts in his appellate brief that after the initial continuance the State still was not prepared to proceed and requested another continuance which too was granted notwithstanding appellee’s renewed objection.

During the hearing on the plea in bar, the juvenile court labelled as “accurate” the State’s general summarization of the events at‘the original proceedings, including the State’s assertion that the witness was ready to testify, but the juvenile court “felt that we did need to speak to his counsel to be aware of what Fifth Amendment rights would be of the co-defendant” and that “it was merely ... a continuation of [the hearing at which the witness was called] and was not one where [the juvenile court] entered some type of adjudication.” The juvenile court also characterized the questioned events as “we stopped for awhile. Now we’re picking it up again.” But later the juvenile court indicated that without the testimony of the witness, he did not believe the State had a case that day, as another co-defendant represented by counsel had decided not to testify in the case. The juvenile court concluded at the hearing on the motion that the State “asked for a continuance . . . either you needed to fold your tent and leave and say, we’re going to dismiss it or you’ve got to ask for a continuance because you can’t prove your case.”

The proceeding in question reconvened 39 days later, on July 9, T991, when the hearing was held on the plea in bar filed by appellee on the grounds that it was double jeopardy to hear the matter after it was continued. The juvenile judge dismissed the case on the basis of the requirements of OCGA § 16-1-8 (a) (2), because it had been “terminated improperly.” OCGA § 16-1-8 sets out in detail when a second prosecution is barred; this statute creates procedural prohibitions to successive criminal prosecutions that do not affect jurisdiction in any way. Dorsey v. State, 237 Ga. 876, 877-878 (230 SE2d 307).

(a) Jeopardy attaches for purposes of OCGA § 16-1-8 (a) (2) in a trial without jury after the first witness is sworn but before findings are rendered or after a guilty plea is accepted by a court. Id. Compare White v. State, 143 Ga. App. 315, 316 (2) (238 SE2d 247). Jeopardy attached in this case. '

(b) OCGA § 16-1-8 (a) pertinently provides: “A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: . . . (2) Was terminated improperly ... in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.” (Emphasis supplied.) Therefore, this appeal of necessity raises an issue of whether the initial proceedings were terminated or, if terminated, whether they were terminated improperly.

Although it is less than certain, it appears from the transcript of the motion hearing that the proceedings in issue were interrupted by the juvenile court’s granting of either a continuance or a temporary adjournment (the equivalent of a postponement), as requested by the State. And it lies in the juvenile court’s discretion whether to grant such relief. Whatley v. State, 162 Ga. App. 106, 107 (1) (290 SE2d 316). Generally, “[a] postponement, like a continuance, is not a ‘termination’ of the proceedings within the meaning of OCGA § 16-1-8 (a) where . . . the trial is resumed before the same jury.” Knight v. State, 197 Ga. App. 250, 252 (5) (398 SE2d 202). The same rule should apply when a trial or juvenile proceeding without jury is resumed before the same judge. But, if the State in a case in which it has announced ready to proceed thereafter elects to move for a continuance, postponement, temporary adjournment, recess, or other temporary cessation of proceedings (under whatever nomenclature such request is made) to attempt to obtain additional evidence, because if it were then required to proceed it would be unable to prove its case against the defendant, it would appear that the granting of such a request would in effect result in the circumvention of OCGA § 16-1-8. Accordingly, the juvenile court would abuse its discretion by the granting of such a temporary cessation order and the result of the failure to proceed with prosecution would constitute an improper termination within the meaning of OCGA § 16-1-8. See Vining v. State, 195 Ga. App. 816, 817 (2) (395 SE2d 17) (announcement of ready constitutes waiver of right to a continuance); Bennett v. State, 186 Ga. App. 832 (2) (368 SE2d 789); Whatley v. State, supra; see also Phillips v. State, 197 Ga. App. 491 (399 SE2d 234).

My colleagues, who join me in holding that children enjoy double jeopardy rights but who believe this particular juvenile was not deprived of his, assert that what occurred in this case was analogous to the circumstances of Sessions v. State, 131 Ga. App. 379 (206 SE2d 99). However, in Sessions the court ordered the State to file a motion (for continuance) for an opportunity to obtain a city ordinance; this court, based on the appellate record before it, construed the resulting delay of the case as a continuance in order to comply with the direction of the court to reduce the motion to writing and to obtain the city ordinance. In this case, the hearing transcript when viewed in its totality shows that the juvenile court did not direct the State to find counsel; rather the State first attempted to determine if its witness was represented by counsel at all and, being unable to resolve timely whether counsel had been appointed, requested a continuance. Although at one point in the transcript the State asserts that “the witnesses were ready to testify, but [the juvenile court] felt that we did need to speak to his counsel to be aware of what Fifth Amendment rights would be of the co-defendant,” it cannot be inferred from this statement that the court was directing counsel to be found. Rather with the time then allotted, the court at most was allowing the State an opportunity to find the witness’ counsel, if any, so that the witness could make an informed election to the juvenile court’s, satisfaction whether to waive his Fifth Amendment rights. In this regard, it is our duty on appeal to construe the facts and all reasonable inferences to be drawn therefrom to support the judgment below (see generally Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737)), and this rule applies equally when the judgment below is unfavorable to the State. Review of the hearing transcript reveals the juvenile court found that the State requested the continuance because it knew appellant would be acquitted if it proceeded that day. In this regard, the juvenile court observed that “the situation we had the other day was that the State could not proceed with the case at that time. They would not have had the evidence to do it. That’s my . . . view of what the situation was. They couldn’t proceed. ... They would have lost the case.” Thereafter, the hearing transcript reflects the State’s concession that the witness “was willing to testify; however, it was held that he would not be allowed to and that’s whenever the issue of the continuance arose.” (Emphasis supplied.) Subsequently, the juvenile court stated in the hearing transcript that “without [the witness’ testimony] you all did not have a case that day. That’s my basis, I think, why you asked for a continuance because there was another alleged ... co-defendant . . . who had counsel who decided not to testify, isn’t that right?” (Emphasis supplied.) The State’s attorney thereupon responded, “right.” Thus, the hearing transcript reflects that the State, if not agreeing with, at least acquiesced to the juvenile court’s finding that the basis for the continuance was that the State could not prove its case. The trial judge also observed that “but for the granting of that continuance, this young man would have been acquitted that day. Now, he might have been acquitted . . . because the Judge refused to let a witness who was willing to testify, but nevertheless he would have been acquitted.” (Emphasis supplied.) And, the State then conceded on the record that it had made a “judgment call” in requesting the continuance, and that “the State was not ready to proceed based on . . . the evidence.” In view of the state of the record, we cannot construe the court’s decision to grant a continuance or adjournment, as do certain of my colleagues, as being prompted as in Sessions, supra, in order “to afford [defendant’s] counsel an opportunity to comply with the court’s direction” to obtain the presence of witness’ counsel in the courtroom, particularly when at that time it was unknown whether the witness even had been appointed such a counsel. Rather, the record before us contains an unrefuted finding, conceded to or at least acquiesced in by the State, that the request for continuance was made based on a judgment call by the prosecutor motivated by her knowledge that the State had insufficient evidence to then proceed to trial without a resulting acquittal of appellant.

Additionally, based on the posture of the hearing transcript, we in dissent cannot accept any tacit suggestion by the State that the trial court may have found the termination in the proceedings was necessary, within the meaning of OCGA § 16-1-8 (e) (2) (A) because it was physically impossible to proceed with the trial. First, the transcript reflects that it was not physically impossible to proceed with trial. The State asserted repeatedly in the hearing that it had announced ready, that its witnesses were ready to proceed, and that the witness in question was willing to testify but was prevented from doing so by the trial court. The State was not physically precluded from proceeding to trial that day by the juvenile court; rather, the State was merely self-precluded from electing to proceed to trial that day without suffering the result of an acquittal of appellant. Thus, by the State’s own concession in the record it made a “judgment call” to request continuance. Secondly, in order to preclude termination of the proceedings from being improper under OCGA § 16-1-8 (e) (2), the trial court must find that the termination is necessary because it is physically impossible to proceed with trial. Review of the hearing transcript reflects that no such finding was made by the trial court at the hearing; as we do not have the transcript of the earlier proceeding before us, we can only speculate whether such a finding was there made. However, the hearing transcript reflects that the juvenile court did not believe that termination was necessary because of a physical impossibility to proceed to trial, as the trial court expressly concluded that this provision of the statute was inapplicable in the case at bar. In this regard, the hearing transcript reflects the following colloquy between the court and defense counsel. “[DEFENSE COUNSEL] Your honor, they did not have sufficient admissible evidence to prove the case after it was called in the first. . . . [THE COURT] That’s right. It wasn’t a continuance based upon convenience or some such thing like that. [DEFENSE COUNSEL] Or physical impossibility which the statute provides for. [THE COURT] Yeah, based upon not having enough evidence — not having that day evidence to go forward.” (Emphasis supplied.) The prosecutor subsequently stated: “I don’t think that there may not have been a necessity where I had a right to a continuance; however, one was granted and I don’t think that error was made in that one was granted.” (Emphasis supplied.) Thus, it appears that not even the State believed termination of the proceedings could be based on a finding of necessity in this instance. Because no physical impossibility to proceed to trial existed and because the record discloses no finding of necessity by the juvenile court, we cannot conclude that the provisions of OCGA § 16-1-8 (e) (2) (A) could be dispositive of this case.

In this case, the State in its notice of appeal provided that the “transcript of evidence and proceedings will be filed for inclusion in the record on appeal.” Thereafter, the State elected only to file for inclusion in the record the transcript of the hearing on the motion in bar; no transcript of the proceedings in issue was included for our consideration. Without the benefit of the transcript of the proceedings in question, we are unable to ascertain precisely what transpired at the proceedings in question. Moreover, at the motion hearing, court and counsel were not in total agreement regarding their recollection of what had previously transpired. Thus, without the transcript of the proceedings itself, we are unable to ascertain whether there exists some evidence to support the trial court’s factfindings at the motion hearing, and whether the State in fact elected, after announcing ready for trial, to move for continuance to obtain additional evidence because it could not then prove its case. The burden to file a transcript, unlike the record, is on appellant. Dunbar v. Green, 232 Ga. 188 (205 SE2d 854). And appellant has not filed a timely motion to supplement the record. When the enumerations of error are such, as in this case, as to require our review of the evidence and appellant fails to include a transcript on appeal, the enumeration must be deemed meritless and the judgment or ruling of the trial court affirmed. Smith v. State, 160 Ga. App. 26 (1) (285 SE2d 749); see Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500). It is not an appellate court’s function to prosecute an appeal on an appellant’s behalf; under these circumstances, we must rely on the presumption of regularity in a court of competent jurisdiction and assume the evidence was sufficient to support the trial court’s ruling. Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160).

We in dissent believe that our clear duty on appeal is to reasonably construe the facts and inferences to be drawn therefrom, as to how and why the continuance occurred, to support the judgment. Grant, supra. What little facts exist from the recollection of the parties, giving particular deference to the rulings of the trial judge, tend to support his legal ruling. However, because the initial transcript of the proceedings has not been provided to this court, we would be compelled in any event, to support the trial court and affirm judgment. Smith, supra; see Dunbar, supra.

Decided July 16, 1992

Reconsideration denied July 31, 1992

Harry N. Gordon, District Attorney, Audrey A. Butler, Assistant District Attorney, for appellant.

Shoemaker & Associates, Curtis G. Shoemaker, for appellee.

Accordingly, I respectfully dissent. I am authorized to state that Presiding Judge McMurray joins in this dissent.


source: Caselaw Access Project

author: Andrews, Judge. Beasley, Judge,

license: Public Domain

text:
    A92A0220.
    BRAMBLETT v. THE STATE.
    (422 SE2d 18)
   Andrews, Judge.

Bramblett appeals the denial of the motion to suppress initially filed by his co-defendants and adopted by him.

On September 28, 1989, officers obtained a search warrant for the person and home of co-defendant Bobby Perry. The warrant sought methamphetamine powder. While the warrant was being executed, Bramblett and co-defendant James Berry entered the premises. Berry entered first and was patted down, during which the officer felt a bulge in his pocket which was further investigated and proved to be a bag of cash and methamphetamine.

Bramblett later knocked at the door and was let in and patted down for weapons. Investigating a bulge in his right front pocket, officers discovered a package containing methamphetamine powder. In the pocket of the leather jacket he was wearing was found a quantity of marijuana. On the dash of his truck, parked outside the house, officers found a .38 revolver. Bramblett was charged with possession of less than an ounce of marijuana; possession of methamphetamine; and possession of a firearm by a felon.

1. While Bramblett did not testify during the pretrial hearings on the motion to suppress, he did testify during the trial of the case and we may consider that evidence in ruling on the issue of the motion to suppress. Sanders v. State, 235 Ga. 425, 431 (219 SE2d 768) (1975).

Bramblett denied that the leather jacket he was wearing and in which the marijuana was found was his. He said he used his truck as a “work truck,” hauling crews in it for his grading business. According to him, men were always leaving articles of clothing in the truck and when he arrived at Perry’s, he grabbed the coat off the seat because it was raining.

“It is the relationship of the person with the property searched that gives rise to the protection of the Fourth Amendment. [Cit.] Here, the appellant asserted no possessory or other interest in either the [marijuana] or in the . . . property where the search was conducted. ‘The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises [or belongings] has not had any of his Fourth Amendment rights infringed. Id.’ ” Todd v. State, 184 Ga. App. 750, 751 (2) (362 SE2d 400) (1987). Therefore, Bramblett has no standing to raise the issue of the search of the jacket pocket.

2. Bramblett filed a motion to suppress which argued that the search of his person was conducted pursuant to the warrant issued for the person and premises of Bobby Perry and that the search was improper because it took place before the actual signing of the warrant. Later, Bramblett filed his motion to adopt the motion to suppress filed by co-defendants Perry and Berry. That motion was directed solely at alleged deficiencies in the affidavit upon which the warrant issued. All of the information in the affidavit dealt with Perry and events at his home. Bramblett was not alluded to in the affidavit or warrant. There is no evidence to show that Bramblett had any possessory interest in or expectation of privacy on the premises and he, therefore, lacks standing to challenge the warrant. E.g., State v. Jackson, 201 Ga. App. 810, 812 (1) (412 SE2d 593) (1991); Crisp v. State, 195 Ga. App. 786 (1) (395 SE2d 47) (1990); Sanders v. State, 181 Ga. App. 117, 118 (2) (351 SE2d 666) (1986).

Also, because Bramblett arrived on the premises during the search and the officers stated they patted him down for their own safety, OCGA § 17-5-28 (1) provides justification for the actions taken by the officers. “ ‘(This) statute by necessary implication describes the limited circumstances in which the executing officer may search persons not identified in the warrant incident to a legitimate search of premises.’ [Cit.]” Brown v. State, 181 Ga. App. 768, 770 (353 SE2d 572) (1987).

3. The other “issues” listed by Bramblett following his enumeration of error are not supported by argument or citation of authority in his brief and are deemed abandoned. Court of Appeals Rule 15 (c) (2).

Decided July 9, 1992

Reconsideration denied July 31, 1992.

Hester & Hester, Frank B. Hester, for appellant.

C. Andrew Fuller, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The issue discussed and decided in Division 1, i.e., the search of the jacket pocket and the seizure of marijuana from it, is not raised by appellant or at most falls into the same abyss of abandonment as those disposed of in Division 3.

The enumeration of errors, liberally read, contends that the search warrant was defective for seven reasons, that its execution occurred before its issuance and beyond its scope, and that three items of physical evidence should have been excluded because left in the jury room overnight during deliberations in the first trial, which was mistried.

Appellant’s argument addresses only the validity of the warrant and its issuance. It does not address the execution of the warrant. Nor does it address the pat-down and seizure of items from the jacket pocket (marijuana) or appellant’s two pants pockets (bottle of diazepam in one and plastic bag of methamphetamine, .22 bullets, wallet containing $1,012 in the other). It does not show how the warrant, if invalidly issued, eliminates the authority to subject him, a visitor during the warrant’s execution, to a pat-down search for weapons. As to the final contention, attacking the chain of evidence, the argument merely restates it.

Based on the authorities cited at the end of Division 2, I concur with respect to appellant’s challenge to the validity and issuance of the search warrant for co-defendant’s premises. I concur in Division 3 and I do not reach the issue decided in Division 1.

       The time written on the warrant by the magistrate issuing it was 1:40 p.m., but, due to smearing of ink, appeared to read 11:40 p.m. The search occurred at 8:45 p.m. The magistrate testified and the court concluded the warrant issued at 1:40 p.m. On appeal, we accept the trial court’s rulings on disputed facts and credibility unless clearly erroneous, which they are not here. Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987).


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0261.
    MYERS et al. v. TEXACO REFINING & MARKETING, INC.
    (422 SE2d 216)
   Birdsong, Presiding Judge.

Vivian Buffington sustained personal injuries when she slipped and fell as a customer at a Texaco service station and food mart. She filed suit against the owner of the premises, Texaco Refining & Marketing, Inc. (Texaco), the operator of the facility, Myers, individually and d/b/a Jiffy Mart (Myers), and others. Texaco cross-claimed against Myers, claiming that pursuant to their contract for operation of the business, Myers agreed and covenanted to fully defend and indemnify Texaco for such claims. Texaco’s cross-claim also alleged Myers’ breach of contract for failure to provide liability insurance coverage for Texaco.

Texaco’s cross-claims against Myers were severed from the trial of Buffington’s personal injury claims. The jury returned a verdict for Buffington, apportioned against Myers et al. for $43,650 plus interest and costs, and against Texaco for $162,475 plus interest and costs. Texaco’s cross-claims against Myers for indemnification and breach of the liability insurance provision were then heard. The provisions at issue are Paragraphs 9 and 10 of the parties’ contract.

Paragraph 9 provides in pertinent part: “INDEMNITY— Contractor [Myers] covenants and agrees to fully defend, protect, indemnify and hold harmless Texaco . . . against each and every claim, demand or cause of action and any liability, cost, expense (including . . . reasonable attorney fees and expenses), damage or loss in connection therewith, which may be made or asserted by . . . any third parties ... on account of personal injury or death or property damage caused by, arising out of, or in any way incidental to, or in connection with the performance of the services hereunder, except such as may be determined ... to have resulted from Texaco’s sole negligence..” (Emphasis supplied.)

Paragraph 10 in pertinent part provides: “INSURANCE—The Contractor [Myers] shall maintain, at his sole cost . . . the insurance coverage set forth below. ... A certificate evidencing the required insurance and specifically quoting the indemnification provision set forth in the Agreement shall be delivered to Texaco. . . . C. Comprehensive General Liability Insurance ... [in stated amounts]. This policy shall cover, among other risks, the contractual liability assumed under the indemnification provision set forth in this Agreement. . . . E. Excess Liability Insurance—Excess liability insurance over comprehensive general liability coverage . . . with minimum limits of $1,000,000.00. All such insurance policies shall be endorsed to show Texaco as an additional insured.”

Both Texaco and Myers filed motions for summary judgment. The trial court granted Texaco’s motion for summary judgment with regard to indemnity and denied Myers’ motion for summary judgment. The trial court deliberately refrained from ruling on Texaco’s claim for Myers’ breach of the liability insurance procurement provision.

The trial court determined that pursuant to the contract, Texas law governs; that in construing indemnity agreements Texas has adopted the “express negligence doctrine” according to which the intent to indemnify must be stated within the four corners of the contract; that the indemnity language in Paragraph 9, standing alone, failed to satisfy the Texas “express negligence doctrine”; but that the indemnity provisions of Paragraph 9 together with the insurance requirements of Paragraph 10 satisfied the doctrine inasmuch as Myers’ intent to indemnify Texaco against personal injury losses and attorney fees and expenses was expressed within the four corners of the contract and in compliance with Texas law.

The trial court ordered Myers to pay Texaco for the $162,475 personal injury judgment against Texaco, $32,900.50 in attorney fees and $5,325.53 in costs, plus interest.

Myers contends that under the “express negligence doctrine” the indemnity provision is unenforceable because it does not expressly provide that Myers indemnifies Texaco against claims arising out of Texaco’s own negligence; and that the indemnity provision and the insurance provision construed together do not impose such a duty on Myers; so, Myers contends he is not liable to indemnify Texaco against this claim arising out of Myers’ and Texaco’s joint negligence. Held:

1. Rather than rule on the complicated indemnification issue under Texas law and leave the breach of contract issue undetermined, the trial court should have ruled on the issue of breach of contract for Myers’ failure to provide liability insurance with Texaco as named insured. The ruling that Myers was required to defend and indemnify Texaco against this claim does not relieve Myers of the separate contract obligation to provide liability insurance, particularly insofar as peculiar damages may arise from this breach of contract. Although Texaco did not cross-appeal on this issue, we decline to give the impression that the issue is dead, since that might give room for more litigation. See OCGA § 5-6-34 (d).

Paragraph 10 provides that Myers “shall maintain, at his sole cost. . . comprehensive general liability insurance [and] excess liability insurance [in specified amounts].” The paragraph then provides: “All such insurance policies shall be endorsed to show Texaco as an additional insured.’’'’ (Emphasis supplied.) It is undisputed that Myers did not procure such insurance. Rather, Myers asserts that Texaco by its conduct waived compliance with this provision. A conclusion is demanded that regardless whether Myers was required to indemnify Texaco, Myers was required to procure liability insurance for Texaco. If the indemnity provision were unenforceable for any reason, the requirement that Myers procure liability insurance for Texaco becomes everything. Texaco is not required to have raised the breach of contract issue on appeal or else lose it, because it is still pending below. See OCGA § 9-11-54 (b). The grant of summary judgment to Texaco on the indemnity issue does not relieve Myers of the obligation to answer for its failure to provide liability insurance. As to Myers’ defense of waiver, in Georgia law a waiver is not favored and must be voluntary, knowing, and unequivocal. See EGL 28A Waiver & Abandonment, § 3 et seq. (1985 ed.). An evidentiary hearing may be required as to special damages, with consideration being given (under appropriate pleadings) to Myers’ failure to provide liability insurance in light of its assertion that the indemnity provision is unenforceable, which altogether leaves Texaco with no protection at all contrary to the plain and indisputable terms of the contract, and which gave rise to this litigation.

2. The trial court correctly granted summary judgment to Texaco on the indemnity issue, though not for the reasons stated. The indemnity provision contains within its own terms the intent for Myers to indemnify Texaco for this claim arising out of Myers’ and Texaco’s joint negligence, and it is not necessary to construe this provision with the insurance procurement provision in order to find such intent.

The parties’ express intent that the “Agreement shall be construed in accordance with the Laws of the State of Texas” will be honored unless application of Texas law contravenes Georgia public policy or is prejudicial to Georgia’s interests. See Nasco, Inc. v. Gimbert, 239 Ga. 675, 676 (2) (238 SE2d 368) and New England Mtg. Security Co. v. McLaughlin, 87 Ga. 1 (13 SE 81). Myers contends the “express negligence doctrine” adopted by the Texas Supreme Court provides that when parties to a contract seek indemnification of the indemnitee from the consequences of its own negligence, such an intention must be “specifically stated within the four corners of the contract.” Ethyl Corp. v. Daniel Constr. Co., 725 SW2d 705, 708 (2). According to Myers, such a view is consistent with Georgia public policy which “is reluctant to cast the burden of negligent actions upon those who are not actually at fault. Thus ‘(i)t is well established in Georgia that contractual indemnities do not extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered. (Cits.)’ [Cits.] ‘ “The words of the contract will be scrutinized closely to discover whether such an intent is actually revealed in them and every presumption is against such intention. In the absence of explicit language to the contrary, [Georgia] courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter’s own negligence.” (Cits.)’ [Cit.] . . . ‘Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language. (Cits.)’ ” Allstate Ins. Co. v. City of Atlanta, 202 Ga. App. 692, 693 (415 SE2d 308).

Myers contends the Georgia law and policy just quoted are consistent with the “express negligence doctrine” adopted by Texas courts, and authorize us to find the provision in this case unenforceable because it does not expressly state that Myers will indemnify Texaco against a claim arising out of Texaco’s own negligence. Myers asserts that the indemnity provision in this case is virtually identical to the one found wanting by the Texas Supreme Court in Singleton v. Crown Central Petroleum Corp., 729 SW2d 690, as to which the Texas Court of Appeals in Gulf Oil v. Ford, Bacon & Davis, Texas, 782 SW2d 28, 30 (1) stated: “The agreement in Singleton failed to meet the express negligence test, because it contained no direct language stating the parties intended that the contractor would indemnify owner for the consequences of the owner’s own negligence. Rather, it could, at best, only be inferred that such was the parties’ intent because the language stated that the only accidents for which indemnity will not apply are those arising out of the owner’s sole negligence.” In support of its contentions, Myers relies on Linden-Alimak, Inc. v. McDonald, 745 SW2d 82; Gulf Coast Masonry v. Owens-Illinois, 739 SW2d 239; compare Boyd v. Amoco Production Co., 786 SW2d 528; Adams Resources &c. Corp. v. Resource Drilling, 761 SW2d 63.

We find, however, that Texas law, properly construed by Georgia law, does not require us to find that this provision is unenforceable as regards Texaco’s joint negligence, on grounds that it does not contain the necessary express intent. Regardless whose law governs a contract, Georgia law requires us to give meaning to every term rather than construe any term as meaningless, and to construe a contract so as to uphold the contract in whole and in every part; and if construction is doubtful, “that which goes most strongly against the party . . . undertaking the obligation is generally to be preferred.” OCGA § 13-2-2 (4) and (5). This statutory mandate is of more force than a supposed presumption, whether arising out of Texas or Georgia law, that the parties never intended that Myers would indemnify Texas for Texaco’s joint negligence.

Paragraph 9 provides that Myers agrees to indemnify Texaco from and against “each and every claim ... on account of personal injury . . . arising out of . . . performance of the services hereunder, except such as . . . resulted from Texaco’s sole negligence.” (Emphasis supplied.) This language is clear. If this personal injury had resulted from Texaco’s sole negligence, Myers would not be liable for indemnification. But Myers is liable to indemnify for “each and every” other kind of claim; this necessarily includes a claim arising out of joint negligence. If the parties had intended Myers would not indemnify Texaco from a claim arising out of any negligence of Texaco, they would have said so. In that event, the provision would not have excepted only claims arising out of Texaco’s “sole” negligence. In order to construe -this provision as having any reason for being or any meaning at all, an agreement to indemnify Texaco as to claims arising out of joint negligence must be directly deduced.

Since Georgia law does not permit us to ignore plain language in a contract or to construe it as meaningless, if Texas law dictates a conclusion that this provision is unenforceable as a statement of indemnification for joint negligence, such law would be against the public policy of this state to interpret contracts in their reasonable meaning and according to the intent of the parties. See Hull v. Lewis, 180 Ga. 721 (180 SE 599). This whole contract is a joint undertaking by Myers and Texaco; that this joint undertaking would include Myers’ indemnification for Texaco’s joint negligence is not unreasonable. That Myers would indemnify Texaco from all claims except those arising from Texaco’s “sole” negligence is likewise reasonable. In order to conclude Myers did not mean to indemnify Texaco for Texaco’s joint negligence, an express provision to that effect would be required, in. which case the language “excepting” claims arising from Texaco’s “sole” negligence would be nonsense. We cannot construe this contract toward such a result.

Allstate Ins. Co. v. City of Atlanta, supra, cited to prove that Georgia law and policy are consistent with the Texas express negligence doctrine, and its authority (Georgia State Tel. Co. v. Scarboro, 148 Ga. App. 390, 391 (2) (251 SE2d 309)) both involved contracts in which no intent was expressed to indemnify the indemnitee for claims arising out of the indemnitee’s own negligence, jointly or solely. Thus, the statement that “ ‘ “[t]he words of the contract will be scrutinized closely to discover whether such an intent [to indemnify a party against his own negligence] is actually revealed in them and every presumption is against such intention,” ’ ” (Allstate Ins. Co., supra at 693) refers to attempts to create indemnification for a party’s own negligence where no such intent may be reasonably inferred. Certainly where there is no hint that an indemnitor means to indemnify another from his own negligence, the presumption would be against creating such an obligation out of thin air. Such was the case in both Allstate Ins. Co. and Georgia State Tel. Co., and that is the context in which their reference to a presumption-against-indemnification must be understood. Those contracts were very different from the one in this case, which plainly expresses the intent for Myers to indemnify Texaco for some degree of Texaco’s own negligence, for it requires indemnification of Texaco for each and every claim except one arising out of its sole negligence. Furthermore, the statement of public policy in Allstate Ins. Co. and Georgia State Tel. Co. rests upon the idea that we are reluctant to cast the burden of negligence actions “upon those who are not actually at fault.” Allstate Ins. Co. at 693. The basis of such a policy is necessarily weakened where the negligence is the joint negligence of the indemnitor and the indemnitee, for in such case the indemnitor is at fault.

These same Georgia cases (Allstate Ins. Co. and Georgia State Tel. Co.) require us to scrutinize the contract closely “ ‘ “to discover whether [an intent to indemnify the indemnitee against his own negligence] is actually revealed in them.” ’ ” Allstate, supra at 693. This statement on its face is a disapproval of the idea that the parties’ intent may not be reasonably inferred from plain language such as exists in this case. The intent to indemnify Texaco against its own joint negligence is not merely “implied” but is plainly expressed. Consistent with our statutory law and public policy, a patent inference may be drawn from plain language or an obvious interpretation may be required; if Texas law prevents us from doing this, our public policy requires that the Texas law not be followed. See Nasco, Inc., supra at 676 (2). To conclude there is a presumption against indemnification for joint negligence merely because the contract (though it could mean nothing else) did not expressly say “Myers indemnifies for joint negligence,” will violate OCGA § 13-2-2 (4): “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.”

Accordingly, this indemnification provision is enforceable against Myers as to this claim for Texaco’s joint negligence. The trial court did not err in granting summary judgment to Texaco on this issue.

3. Moreover, contrary to Myers’ assertions, this contract is not virtually identical to the one held inadequate by the Texas Supreme Court in Singleton v. Crown Central Petroleum Corp., supra at 729 SW2d 690. The Singleton agreement provided that the claims for which the owner was indemnified were those arising out of “the activities of [cjontractor ... or in connection with the work to be performed . . . under this contract, excepting only claims arising out of accidents resulting from the sole negligence of [o]wner.” Singleton v. Crown Central Petroleum Corp., 713 SW2d 115, 117-118. That provision on its face indemnifies the owner only as to claims arising out of “the activities of the contractor”; it does not apply to a claim arising out of any conduct of the owner unless it arises in connection with the work to be performed under the contract, and even then the owner is not indemnified for claims arising out of his sole negligence. The Texas Supreme Court did not say why it found that contract “does not satisfy the ‘express negligence’ rule,” (Singleton, 729 SW2d at 691), and we cannot bind ourselves to Texas cases such as Gulf Oil Corp. v. Ford, Bacon & Davis, supra, which do not recognize the ambiguous and limited nature of the whole indemnity clause in the Singleton contract. Of the same ilk as the Singleton contract is the one in Gulf Coast Masonry v. Owens-Illinois, supra, where the contractor agreed to indemnify the owner from loss arising out of “any act or omission of contractor.” That provision on its face indemnifies the owner only for claims arising out of the contractor’s acts or omissions. No intention is expressed in that contract to indemnify the owner for claims arising out of the owner’s conduct, so that case is no authority for this case.

Doubtless there are Texas cases in which indemnity provisions are so clear that they require no interpretation to find indemnification (see Gulf Oil Corp. v. Ford, Bacon & Davis, supra; Boyd v. Amoco Production Co., supra), but the fact that an interpretation is required or that an obvious inference must be made from plain and unambiguous language, such as in this case, does not make a provision unenforceable under Georgia law. In fact, the presumption is to the contrary. OCGA § 13-2-2 (4). The claim in this case did not arise from Texaco’s sole negligence. Therefore, under the express terms of the agreement, this claim is not excepted from Myers’ promise to indemnify. Any other construction would make nonsense of the contract provision and is not preferred under Georgia law.

Accordingly, under Georgia rules of contract construction with respect to this contract governed by Texas law, the intent of Myers to indemnify Texaco’s joint negligence is clearly and unmistakably expressed. Summary judgment to Texaco on the indemnification issue was proper; the trial court’s award to Texaco on the judgment amount and for attorney fees and expenses with regard to the indemnity provision is affirmed, and the case is remanded for resolution of the issue of breach of Myers’ contract obligation to provide liability insurance for Texaco and damages relating thereto.

Judgment affirmed and case remanded with direction.

Sognier, C. J., McMurray, P. J., Carley, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

The issue is the effect of an indemnification provision in a contract for services for the operation of a retail service station and food mart. It is placed before us procedurally as follows.

After a hearing on the cross-motions for summary judgment and consideration of the evidence, the court granted Texaco’s motion for summary judgment with regard to its crossclaim for contractual indemnity against Myers and denied Myers’ cross-motion for summary judgment. The order stated that inasmuch as the court was rendering its decision on Texaco’s crossclaim for contractual indemnity, the court was not ruling on that portion of Texaco’s motion for summary judgment with regard to its breach of contract crossclaim nor upon Myers’ defense of waiver of the insurance procurement provision.

Myers’ appeal is a threefold challenge: The indemnification provision, Paragraph 9, itself is unenforceable by virtue of its failure to satisfy the Texas “express negligence doctrine.” The indemnification provision construed together with the insurance provision, Paragraphs 9 and 10 together, does not satisfy the Texas “express negligence doctrine” and indemnification for negligence is therefore unenforceable. The indemnity provision is likewise unavailable to Texaco to recover its attorney fees and costs.

No issue “is raised on appeal” in regard to the court’s not ruling on the breach of contract portion of the crossclaim and so none should be addressed. OCGA § 5-6-34 (d); Westwind Corp. v. Washington Fed. Savings &c. Assn., 195 Ga. App. 411 (1) (393 SE2d 479) (1990).

1. The contract expressly provides and the parties agree that Texas law should be applied in assessing any contractual indemnity.

The Supreme Court of Texas, in following its trend toward a more strict construction of indemnity contracts, has adopted an “express negligence doctrine,” which provides that when parties to a contract seek indemnification of the indemnitee from the consequences of its negligence such an intention must be “specifically stated within the four corners of the contract.” Ethyl Corp. v. Daniel Constr. Co., 725 SW2d 705, 708 [2] (Tex. 1987). Such a view is consistent with Georgia public policy which “is reluctant to cast the burden of negligent actions upon those who are not actually at fault. Thus ‘(i)t is well established in Georgia that contractual indemnities do not extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered. (Cits.)’ [Cits.] ‘ “The words of the contract will be scrutinized closely to discover whether such an intent is actually revealed in them and every presumption is against such intention. In the absence of explicit language to the contrary, [Georgia] courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter’s own negligence.” (Cits.)’ [Cits.] . . . ‘Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language. (Cits.)’ ” Allstate Ins. Co. v. City of Atlanta, 202 Ga. App. 692, 693 (415 SE2d 308) (1992). The provision in Allstate was similarly sweeping (“any and all claims”) and was insufficient to impose liability for indemnity because it was not specific, express, or explicit. There is thus no impediment to applying Texas law.

2. The indemnity provision of Paragraph 9, on its own, does not satisfy the Texas express negligence test. The relevant language is virtually identical to an agreement examined in Singleton v. Crown Central Petroleum Corp., 729 SW2d 690 (Tex. 1987). In unfavorably comparing the Singleton agreement to one in Gulf Oil v. Ford, Bacon & Davis, Texas, 782 SW2d 28, 30 [1] (Tex. App. — Beaumont 1989), the Texas Court of Appeals in Beaumont stated: “The agreement in Singleton failed to meet the express negligence test, because it contained no direct language stating the parties intended that the contractor would indemnify owner for the consequences of the owner’s own negligence. Rather, it could, at best, only be inferred that such was the parties’ intent because the language stated that the only accidents for which indemnity will not apply are those arising out of the owner’s sole negligence.” Such is the infirmity of the indemnity provision in the case at bar. See also Linden-Alimak, Inc. v. McDonald, 745 SW2d 82 (Tex. App. — Fort Worth 1988); Gulf Coast Masonry v. Owens-Illinois, 739 SW2d 239 (Tex. 1987). Compare Boyd v. Amoco Production Co., 786 SW2d 528 (Tex. App. — Eastland 1990); Atlantic Richfield v. Petro. Personnel, 768 SW2d 724 (Tex. 1989); Adams Resources &c. Corp. v. Resource Drilling, 761 SW2d 63 (Tex. App. — Houston (14th Dist.) 1988). The point is that the omnibus language is not sufficient to cover joint negligence. Under Texas law, a blanket provision which excludes indemnity only for the sole negligence of indemnitee does not cover joint negligence, as here, because it does not expressly say so. “Direct language” is mandatory.

3. The indemnity provision of Paragraph 9 combined with the insurance procurement provision of Paragraph 10 still does not satisfy the express negligence requirement.

The Texas Court of Appeals in Dallas considered and rejected an analogous situation in Adams v. Spring Valley Constr. Co., 728 SW2d 412 (Tex. App. — Dallas 1987). Compare Klepac v. Champlin Petroleum Co., 842 F2d 746 (5th Cir. 1988), in which the issue of whether or not the indemnity language satisfied the Texas express negligence doctrine was not squarely addressed. In Adams, the court was asked to construe indemnity language in a subcontract in conjunction with language from a certificate of insurance procured in conjunction with the subcontract to find an express intent that the subcontractor was to indemnify the contractor against liability due to the contractor’s negligence. Although the certificate of insurance was physically a separate document from the subcontract, the court assumed arguendo that the certificate was a condition of the subcontract and within its four corners. Even considering the combined language, it was an inadequate statement of assumed negligence indemnity for the indemnitee.

The combined language at issue here fails because at most the sought indemnity for joint negligence can only be inferred from the additional language of the insurance procurement provision. Implication and inference cannot transform omission into an express or explicit statement of intent, or as Gulf Oil says, “direct language,” to indemnify the indemnitee against its own concurrent negligence. The trial court erred in ruling that the contract provisions were sufficient.

Decided July 16, 1992

Reconsideration denied July 31, 1992

Lane, O’Brien, Caswell & Taylor, Richard L. Ormand, Russell T. Bryant, for appellants.

Fortson & White, Michael J. Rust, Matthew G. Moffett, for appellee.

4. Nor was Texaco entitled to summary judgment on the question of its indemnification for attorney fees and costs.

In Construction Inv. &c. v. Dresser Ind., 776 SW2d 790 (Tex. App. — Houston (1st Dist.) 1989), the Texas Court of Appeals in Houston (1st Dist.) addressed the issue of whether or not an indemnity contract, which did not meet the express negligence test, could obligate the indemnitor to pay the indemnitee’s attorney fees for successfully defending a negligence claim by an employee of the indemnitor’s subcontractor. The court concluded that it could, citing, inter alia, two federal court decisions applying Texas law and holding that “an indemnitee may recover costs where it was not found negligent, even though the contract did not meet the express negligence standard.” Id. at 792. The decision in Dresser rests in part on the fact that the indemnitee was not found to be negligent on the underlying tort claim. In this case, not only was indemnitee Texaco found to be negligent but to a much greater degree than joint tortfeasor/indemnitor Myers.

Furthermore, in Dresser, unlike the case at bar, the provision regarding defense costs was “so specific, lengthy, and repeated” that it was more properly characterized as a “ ‘separate item of indemnification.’ ” See Dresser, supra at 793.

The provision in this case for indemnification of defense costs, including reasonable attorney fees and expenses, is more closely akin to that in Monsanto Co. v. Owens-Corning Fiberglas, 764 SW2d 293 (Tex. App. — Houston (1st Dist.) 1988). As noted in Dresser, “the indemnity provision in Monsanto was approximately 12 words in length” and did “not compare with the specific, lengthy indemnity clause” in Dresser.

The unelaborated mention of indemnification of defense costs in the short indemnity provision at bar cannot reasonably be found separate and distinct from any attempt at indemnification for negligence, under the Dresser rationale.

The judgment for Texaco should be reversed.


author: Birdsong, Presiding Judge.

text:
    A92A0278.
    CHANDLER v. HANCOCK BUILDERS, INC.
    (422 SE2d 206)
   Birdsong, Presiding Judge.

Pursuant to our grant of his application for a discretionary appeal, James D. Chandler appeals from the judgment of the superior court reversing the award of the State Board of Workers’ Compensation because the superior court found there was “insufficient competent evidence” in the record to support the board’s decision that Hancock Builders, Inc., was subject to the Workers’ Compensation Act and, hence, was Chandler’s statutory employer.

The record shows that when injured Chandler was an employee of a subcontractor working on a Hancock Builders’ project. Because Chandler’s immediate employer did not have workers’ compensation insurance, Chandler filed a workers’ compensation claim against Hancock Builders; Hancock Builders denied liability because it was not subject to the Act as it had no employees and only contracted with subcontractors to build its houses. Because of Hancock Builders’ denial of coverage, the issue was submitted to an administrative law judge.

At the hearing, Mr. Hancock, the president of Hancock Builders, testified that Hancock Builders had no employees and that the lot clearers, the nail drivers, the masons, the electricians, the concrete workers, and the house cleaners were all subcontractors. According to his testimony, these subcontractors did not have written contracts and none of them was hired to build any particular house. Instead, they were paid weekly on a per work unit basis, e.g., per electric outlet installed, per concrete block laid, per foot of concrete poured, etc. Additionally, the back of the checks by which these subcontractors were paid contained an indorsement which, when signed, swore that the indorser was a subcontractor. Further, certain of these subcontractors individually performed the work themselves and had no employees. Moreover, Mr. Hancock testified that Hancock Builders had only two officers, Mr. and Mrs. Hancock, and both had filed an exemption from workers’ compensation coverage under OCGA § 34-9-2.1. Additionally, while the Hancock’s son was an employee of Hancock Builders, Mr. Hancock testified that he was only a part-time employee when he was home from college.

After consideration of this evidence, the ALJ found that Hancock Builders was not subject to the Workers’ Compensation Act because it had fewer than three qualifying employees. Upon de novo review, however, the full board found that Hancock Builders had more than three workers regularly in service and was subject to the Act. Therefore, Hancock Builders was liable to Chandler. In reaching this finding the full board found the Hancock’s son was regularly, if not continuously, employed by Hancock Builders and was thus a regular employee,- found the persons who assisted in the construction of the homes were employees and not subcontractors, and found Mr. and Mrs. Hancock had not shown by a preponderance of the evidence they were exempt from coverage.

Upon appeal to the superior court, however, the full board’s award was reversed because the superior court found there was insufficient competent evidence in the record to support the full board’s findings. Held:

Chandler first alleges that the superior court erred by failing to apply the any evidence standard of review. Since the superior court and this court are bound by the any evidence standard, the superior court’s rejection of the full' board’s award can stand only if there was no competent evidence supporting the findings of the full board (Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (224 SE2d 65)), and in appeals from the full board, the superior court must construe the evidence in the light most favorable to the party prevailing before the full board and every presumption in favor of the validity of the award shall be given. Maryland Cas. Co. v. Jenkins, 143 Ga. App. 192 (237 SE2d 664). The superior court is authorized to reverse an award of the full board only when there is a plain error of fact or an error purely of law. See Crawford W. Long Hosp. v. Mitchell, 100 Ga. App. 276 (111 SE2d 120). Moreover, the full board was not required to accept Mr. Hancock’s testimony merely because it was not contradicted by direct testimony. Howard Sheppard, Inc. v. McGowan, supra at 411.

Viewing the record under the any evidence standard, we find the following evidence supporting the full board’s award (see Moss v. Central of Ga. R. Co., 135 Ga. App. 904 (219 SE2d 593)): Hancock Builders had no written contracts with any of the purported subcontractors; most of the persons that Hancock claimed were subcontractors were the individuals who personally performed the work to be done; these individuals were not hired for any specific project, but were hired and paid weekly on a work unit basis; the persons so hired allegedly received no instruction or specification of the work to be performed from Hancock, but were deemed to know what needed to be done; and the persons so hired received regular checks from Hancock Builders. With this testimony, we must conclude there was evidence from which the full board could conclude that the people hired were regular employees, and were not subcontractors. See Hiers & Potter, Ga. Workers’ Compensation — Law & Practice, §§ 3-4. Moreover, we do not find either the label given these employees by Hancock Builders or the indorsement placed on Hancock Builders’ checks to be controlling. Therefore “[w]hile the evidence did not demand the finding made by the board, the evidence was nevertheless sufficient to support it. Consequently, even if the evidence could reasonably be interpreted as the superior court did, the any evidence rule authorized the award. [Cits.]” Winn Express Co. v. Hall, 202 Ga. App. 45, 47 (413 SE2d 505). Accordingly, the superior court erred by reversing the full board on this issue. Howard Sheppard, Inc. v. McGowan, supra.

Decided June 24, 1992

Reconsideration denied July 31, 1992

Fink & Travis, David H. Fink, for appellant.

Barnhart, O’Quinn & Williams, Terry E. Williams, for appellee.

Further, pretermitting whether the full board correctly decided that Mr. and Mrs. Hancock had not exempted themselves from the coverage of the Act under OCGA § 34-9-2.1, the evidence supports the full board’s finding that there were more than three other employees who were regularly in the service of Hancock Builders to invoke the coverage of the Act.

The judgment is reversed and the cause remanded to the superior court with direction to reinstate the award of the full board.

Judgment reversed with direction.

Beasley and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A92A0392.
    HIGHTOWER v. THE STATE.
    (422 SE2d 28)
   Andrews, Judge.

Hightower appeals his conviction of three counts of violation of the Georgia Controlled Substances Act. He was convicted of possession with intent to distribute amphetamine on May 5, 1989; possession of cocaine on October 19, 1989; and possession of methamphetamine on October 19, 1989.

Viewed in favor of the verdict, the evidence was that a drug task force investigation was ongoing in the area and Flowers, an informant, advised the agents that Hightower might be running a methamphetamine laboratory.

On May 5, 1989, Flowers escorted undercover agent Baldwin to the residence of Hightower. Prior to arriving there, Baldwin conducted a strip search of Flowers and found no drugs. Upon arrival, Baldwin remained in the car while Flowers entered an outbuilding on the property with Hightower. Flowers first brought out .3 grams of amphetamine or “crank.” Baldwin then obtained a second bag, containing 15.7 grams. These amounts formed the basis for Count 1. Hightower agreed that he would front them the drugs, i.e., allow them to pay him after cutting and reselling the drug. On May 17, Flowers and Baldwin returned to the Hightower property. Baldwin then entered a former chicken house being used as a garage. There, Baldwin paid Hightower $850 for the crank and discussed the possibility of obtaining more. Baldwin observed numerous automobile parts which he discussed purchasing from Hightower, as well as motorcycles and hand tools.

Hightower testified that a meeting occurred with the two men on May 17, but said the only conversation dealing with drugs was that initiated by Flowers and Baldwin, trying to get Hightower to accept drugs in payment for a motorcycle he had sold Flowers. Hightower testified he refused.

No further contact with Hightower was related at the trial until October 19, 1989, when Agent Baldwin obtained a search warrant for the residence and outbuildings of Hightower, based on allegations of drug activity and theft by receiving stolen property. In addition to the two May visits, the affidavit for the warrant reflected that two undercover agents had visited the Hightower property on October 11, 1989 and saw “approximately five motorcycles and approximately ten vehicles.” The agents were of the opinion that these vehicles were there for the purpose of purchasing drugs.

Also, a crime lab specialist visited the property and opined that it was “ideal for an amphetamine laboratory” and an informant told the other drug agents working with Baldwin that the informant had witnessed drug transactions and stolen items at the property during the first week of October.

Upon executing the warrant, an empty soft drink can was found containing cocaine residue (Count 2) and a bag of methamphetamine was found on the dresser in Hightower’s bedroom (Count 3).

1. Denial of his motion to suppress the evidence seized pursuant to a search warrant on October 19, 1989 is enumerated as error. This evidence related to Counts 2 and 3 of the indictment.

Defendant argues that the affidavit was unclear because it indicates that, during the first buy in May, the drugs were handed to agent Baldwin when in fact they were given to Flowers out of the sight of Baldwin and given by Flowers to Baldwin.

The agent who obtained the warrant testified at the motion to suppress hearing that, in addition to the affidavit, he presented oral information to the magistrate when he obtained the warrant and that included the fact that the drugs were first given to the informant and then to him. On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). This argument is without merit.

Defendant also contends that the information as to distribution of drugs was not specific enough and was stale. As reflected above, however, there was information concerning drugs on the premises during the first week of October. Considering the previous illegal activities there, the magistrate could have made a common sense decision that the October reference was to the same type drug activity as had previously occurred and the information was not stale. Ferrell v. State, 198 Ga. App. 270, 272 (1) (401 SE2d 301) (1991); Whitten v. State, 174 Ga. App. 867, 869 (1) (331 SE2d 912) (1985).

The affidavit and warrant, while not models of clarity, comply with OCGA §§ 17-5-20 and 17-5-21.

2. The second enumeration alleges error in the court’s charge on circumstantial evidence. In the trial transcript, the pertinent sentence reads “To warrant a conviction on circumstantial evidence alone the proven facts must not only be consistent with the theory of guilt, but must include every other reasonable theory other than the guilt of the accused.” The court reporter’s certificate of accuracy is dated September 23, 1991. This is argued as error.

On January 8, 1992, the court reporter submitted a supplement to the transcript, stating “Upon review of my shorthand notes I wish to make a correction. . . . Line Five (5), Page 361 should read ‘exclude’ rather than ‘include.’ ” This correction of the record, as allowed by OCGA § 5-6-41 (f), alleviates the need for consideration of the alleged error. See Wigley v. State, 194 Ga. App. 7, 9 (7) (389 SE2d 769) (1989).

Furthermore, after the charge of the jury, the court inquired of counsel for defendant if there were exceptions to the charge. He replied “I don’t see any. I kept fairly decent notes and didn’t note any slips of the tongue.” Therefore, there is a procedural bar to consideration of the now voiced objection. Rivers v. State, 250 Ga. 303, 309 (7) (298 SE2d 1) (1982); Hurston v. State, 189 Ga. App. 748, 750 (2) (377 SE2d 519) (1989).

3. Hightower objects here to the “repeated interruption of the playing of the tape recording” of the events of May 17.

During his testimony, Hightower contended that he did not provide any drugs for distribution but that Baldwin and Flowers offered them to him. In rebuttal, the State offered a tape recording made by use of a body bug worn by Baldwin during the events of May 17, 1991.

The tape had not been transcribed for the jury and the court allowed Baldwin to identify the voices on the tape as it was played. The objection voiced to this procedure was not to interrupting the tape for the purpose of identifying the voices but to “hav[ing] a discussion about what was going on and play a bit and have a discussion about what was going on.” In fact, Hightower acquiesced in the court’s allowing of identification of the voices.

Decided July 15, 1992

Reconsideration denied July 31, 1992.

Little & Adams, Robert B. Adams, for appellant.

Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

The objection voiced here not having been made below, there is nothing presented for our review. In any event, the procedure used was appropriate. Gambrel v. State, 260 Ga. 197, 200 (2) (391 SE2d 406) (1990).

4. Finally, Hightower alleges error in the court’s refusal to allow cross-examination of Flowers as to an attempt by Flowers to sell drugs to Long, who was not otherwise involved in the events at issue.

Despite Hightower’s contention that he was not allowed to pursue this line of questioning, a series of ten questions was posed to Flowers about the incident with Long. Flowers denied any such attempt to sell drugs to Long.

After these questions and denial, counsel for Hightower made the following statement: “I can offer this through Mr. Long. If he [Flowers] wants to deny it, that’s fine, but we want to offer that he tried to trade dope with Mr. Long just like to the defendant over here. He’s going to deny that he tried to trade dope to the defendant and deny that he tried to trade to Mr. Long. We think the consistency of the acts out there should be brought out and are relevant to the case.”

The error enumerated, limitation of cross-examination, is not supported by the record, only the fact that Hightower was not satisfied with the answers received in response to his cross-examination. See Styles v. State, 197 Ga. App. 56 (2 (a)) (397 SE2d 574) (1990).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       Such cans are used as pipes for smoking crack cocaine.


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

text:
    A92A0423.
    WINN-DIXIE STORES, INC. v. NICHOLS.
    (422 SE2d 209)
   Sognier, Chief Judge.

Shirlee Ann Nichols brought suit against Winn-Dixie Stores, Inc. seeking damages arising out of an incident in which her wallet was allegedly stolen while she was shopping at a Winn-Dixie grocery store. The trial court denied Winn-Dixie’s motion for summary judgment, and we granted its application for interlocutory appeal.

In her deposition, appellee testified that she had left her gray wallet in a half-open zippered compartment in her shoulder bag while shopping at appellant’s grocery store in Valdosta. She set the purse in the upper section of her push cart, leaving the shoulder strap on her shoulder. She deposed that while she was shopping, a woman engaged her in conversation. As they talked, appellee “felt a tug” on her purse and cart, which were on her right, and when she turned she saw a man walking away from her to her right. She deposed she noticed immediately that her wallet was no longer in her purse. Nancie Pedrick, a friend who was shopping with appellee that day, deposed that she entered the aisle from appellee’s right when the man was only a few yards past appellee’s cart and that she saw the man adjusting a gray wallet that protruded a few inches above the top of his trousers. Appellee and Pedrick concluded that the man had stolen appellee’s wallet and that the woman was his accomplice. Pedrick then followed the man while appellee went to the front of the store to report the alleged theft.

According to the evidence adduced by appellee, when she went to the front of the store Richard Arrowood, the person then in charge of the store, told her there was nothing appellant could do, ignored her demand that he call the police, and refused despite her repeated requests to allow her to use the store’s phone to call the police. Appellee deposed that when Arrowood was persuaded by a stranger in the store to telephone the police, he ignored her demand to report the theft incident to the police as a “robbery in progress,” and subsequently refused to help her make a citizen’s arrest of the couple. It is uncontroverted that the man and woman appellee suspected of committing the theft shopped and behaved in a normal fashion, even when they observed appellee pointing them out to Arrowood, and that when appellee confronted them and asked if they saw who stole her wallet, the couple denied knowing its whereabouts. Appellee deposed that the man she suspected of stealing her wallet purchased a few items through the check-out line and, before departing the premises, approached appellee to wish her luck in finding her wallet. When the couple was almost out of sight of the grocery store, she saw a policeman approaching, “leisurely looking for a parking place[, a]nd I jumped off the curb [in front of the grocery store] and wrenched my back.”

Appellee’s complaint, liberally construed, asserts claims arising in tort under OCGA § 51-3-1, which requires the owner of premises to exercise ordinary care in keeping the premises safe for an invitee. Specifically, the allegations in appellee’s complaint fall into four groups: (1) appellant failed to prevent the alleged crime from occurring by keeping its premises safe, specifically, by failing to supervise its premises properly; (2) appellant “failfed] to interfere to prevent the probable injuries” to appellee after being notified of the alleged crime, specifically, by not confronting or apprehending the alleged criminals; (3) appellant’s employees failed to “help” appellee, specifically, by not telephoning the police “in a timely fashion”; and (4) appellant is liable to her for the injuries she incurred when she fell off the curb in front of appellant’s store. We agree with appellant that it was entitled to summary judgment on each of these claims.

1. “A proprietor’s duty to invitees is to ‘exercise ordinary care in keeping the premises and approaches safe.’ [Cit.] The proprietor is not the insurer of the invitee’s safety, [cit.], but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. [Cit.] If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). In this case, it is uncontroverted that there had been no prior incidents of theft of customers’ belongings in appellant’s store. Compare id. at 492-493 (1). “Thus, no evidence proffered was sufficient to present a factual question as to whether appellant knew or should have known that any of its patrons was at risk of [a theft] by [patrons] [cits.]” Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70 (1) (a) (378 SE2d 323) (1989), and as a matter of law appellant owed no duty to appellee to protect her from this risk. Id.

As to appellee’s claim that appellant breached its duty to exercise ordinary care for its invitees by failing to take the proper steps to prevent criminal acts, i.e., by providing security, Arrowood’s testimony in his deposition established that the manner in which appellant maintained its store was no different or less than the method used by other grocery stores, particularly in regard to the lack of security personnel and the store management’s reliance on local police authorities to handle any criminal matters that did arise. Appellee adduced no facts which would authorize a reasonable jury to conclude that appellant’s conduct failed to conform to the standard of care required of property owners in fulfilling their duty to exercise ordinary care under OCGA § 51-3-1, and accordingly summary judgment in appellant’s favor was demanded. Lau’s Corp., supra at 493-494 (2).

2. We agree with appellant that as a matter of law it owed appellee no duty to confront or arrest the couple she was accusing of stealing her wallet. The alleged crime was not committed in the presence or within the immediate knowledge of Arrowood or any other employee of appellant, and thus Arrowood and other employees of appellant were not legally authorized to arrest the alleged criminals. OCGA § 17-4-60. Indeed, the only person who could have effected a citizen’s arrest was appellee herself because she was the only person who “by the exercise of any of [her] senses . . . ha[d] knowledge of [the crime’s] commission. [Cit.]” Johnson v. Jackson, 140 Ga. App. 252, 257 (230 SE2d 756) (1976). Nothing in OCGA § 51-7-60 suggests that a merchant is authorized to detain or arrest persons accused by business patrons of committing crimes against the patrons, since that statute expressly involves only the limited right of a merchant to detain or arrest a person reasonably believed to have committed the offense of shoplifting as defined in OCGA § 16-8-14.

3. We agree with appellant that its motion for summary judgment should have been granted as to appellee’s claim that she was entitled to recover damages from appellant for what she argues was a breach of a duty voluntarily assumed by appellant to help her after the theft was committed. Appellee asserts this duty to help was assumed by appellant when it promulgated internal employee regulations regarding how employees were to respond to crimes against the store. Although Arrowood testified that he did not know of any policy of appellant for handling thefts of customers’ belongings, even if Arrowood’s testimony about appellant’s policies in handling crimes against the store (i.e., shoplifting and robbery) applied to the situation here and assuming, arguendo, that this policy created a duty owed by appellant to appellee that was breached when Arrowood failed to contact the police immediately, the evidence fails to reflect in what manner appellant’s breach of this duty harmed appellee. Appellee testified that pay phones were available to her in the store, and no evidence was adduced that the alleged crime rendered appellee incapable of calling the police herself. Thus appellant was able-, even without money, to access either the telephone operator or 911 (if available) to report the alleged crime. See Regulation No. 2 of Regulations of the Georgia Public Service Commission for the Connection of Customer Owned Coin and/or Coinless Telephones in Georgia. It is uncontroverted that appellant’s employees took no action to prevent appellee from making such a report. Therefore, because the evidence establishes that appellee by the exercise of ordinary care easily could have prevented all the harm to herself that she claims resulted from Arrowood’s failure to contact the police immediately after she reported the alleged crime to him, see OCGA § 51-11-7; see generally Shamis v. Southern Bell Tel. &c. Co., 155 Ga. App. 513 (271 SE2d 658) (1980), appellee was not entitled to recover from appellant. See generally id. at 514.

4. As to the injuries appellee sustained when she jumped off the curb in front of appellant’s store, there is no evidence that the curb was defective in any manner; there is no evidence that any act of appellant prevented appellee from seeing the curb; there is no evidence that appellant forced appellee to jump from the curb; and there is no evidence that appellee, in the exercise of reasonable care for her own safety, could not have prevented the harm to her back. Since there is no evidence of fault on the part of appellant or ignorance of the danger on the part of appellee, see Pound v. Augusta National, 158 Ga. App. 166, 168 (279 SE2d 342) (1981), we agree with appellant that there is no jury question regarding appellant’s liability to appellee in this matter. See generally id.

Decided June 26, 1992

Reconsideration denied July 31, 1992

Young, Clyatt, Turner, Thagard, & Hoffman, William A. Turner, Jr., for appellant.

Kitchens, Wolfson, Smith & Hannan, B. Miles Hannan, for appellee.

In conclusion, under the facts adduced in the record in this appeal and the law of this state, we find all of the claims asserted by appellee against appellant to be utterly without merit. The trial court had no basis on which to deny appellant’s motion for summary judgment, and that order is accordingly reversed.

Judgment reversed.

Birdsong, P. J., Carley, P. J., Beasley, Andrews and Johnson, JJ., concur. McMurray, P. J., Pope and Cooper, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

A proprietor informed of a criminal activity in progress on the premises is placed under a duty to exercise reasonable care to prevent harm to its invitee. Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474). In my view, a jury could conclude that defendant’s agent’s initial refusal to telephone the police and failure to fully inform police when he subsequently did call them was a breach of that duty. The majority’s conclusion that plaintiff was not harmed by such a breach of duty because pay phones were available to plaintiff is contradicted by evidence that plaintiff had no change to operate the pay phones and did not recognize that the phones could be used to access the telephone operator or 911 without money. Plaintiff’s testimony as to the events contained repeated references in this regard, including that she asked her companion for a quarter, but her companion had no money, and that she “asked them to call the police because I had no money.” Consequently, any question as to whether plaintiff exercised ordinary care should be submitted to a jury. I would affirm the ruling of the state court.

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