author: Beasley, Judge. Sognier, Judge,

text:
    75047.
    GYLES, INC. v. TURNER.
    (361 SE2d 538)
   Beasley, Judge.

We granted Gyles’ application for interlocutory appeal to consider the trial court’s denial of its motion for summary judgment in this “slip and fall” case.

Viewing the evidence as to the material issues in the light most favorable to plaintiff Turner, the respondent to the motion, it showed that she had been in Gyles’ store repeatedly and probably more than fifty times over several years. Her sister had worked for Gyles and Turner had visited her in the store. The store was on two levels and the second level was accessible to customers by two staircases. She had traversed the stairway in question “maybe about once or twice. . . .’’It consisted of three uncarpeted concrete steps. The second level was carpeted and the stairway edge was covered by a wooden doorsill that had been in place since 1975 and was nailed at the edge of the carpet to hold it down.

Turner ascended by the other stairway to pick out some draperies. She was carrying these drapes and her purse as she approached the stairway with the doorsill. As stated by Turner at her deposition: “. . . I saw the board ... Q. Do I understand that the board was there for you to see and you just really didn’t pay it that much attention? A. Yes. It was there. Q. And you just didn’t pay it that much attention on this occasion? A. No.” She contended that she caught her foot on the wooden doorsill and that caused her fall. She thought she had placed her foot on top of the doorsill, but: “Q. And I gather that you didn’t put it on top because you weren’t watching where you put your foot? A. I guess that I didn’t, but I thought it was on top of the wood.”

Although there was a direct conflict in Turner’s testimony at her deposition and in her affidavit in opposition to the motion for summary judgment concerning in which hand she was carrying her purchase and her purse, initially stating they were in her right hand (the only side with a guardrail) and then changing the testimony in her affidavit to the left, it is not necessary to deal with that here because the handrail was uninvolved in the precipitating event of the accident, the slip on the doorsill. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986); Tri-Cities Hospital Authority v. Sheats, 247 Ga. 713 (279 SE2d 210) (1981).

Plaintiff alleged: “At the top of the concrete stairs is a raised strip of wood. Said floor was negligently maintained by the Defendant in a dangerous condition, without warning provided to the public.” In its order denying the motion for summary judgment, the trial court held that the “. . . motion should be denied based on the decision . . . in the case of Atkinson v. Kirchoff Enterprises, Inc., 181 Ga. App. 139 (1986), in that it does not appear that the plaintiff fully appreciated the risk involved in using the stairs in question. ...”

“Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.” Alterman Foods v. Ligon, 246 Ga. 620, 625 (272 SE2d 327) (1980). In order for a plaintiff to recover, two elements must be proven: “(1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. [Cit.] [Cit.] The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn [the invitee] and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of [this] knowledge, assumes the risks and dangers incident to the known condition.” White v. Fred F. French Management Co., 177 Ga. App. 661 (340 SE2d 276) (1986), quoted in Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (352 SE2d 212) (1986). “As was observed in Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (138 SE2d 77), there should be no duty to warn of the perfectly obvious such as posting a sign on a stairwell that “These are steps. . . .” Forde v. C & S Georgia Corp., 178 Ga. App. 400 (343 SE2d 164) (1986). The same holds true for a doorsill; an invitee would know as much by looking as by a sign which stated: “These are steps, at the top of which is a doorsill.”

Controlling here is not the fact that plaintiff had been in the store on numerous other occasions, nor the fact that she had used these stairs on other occasions, Folks, Inc. v. Dobbs, supra at 312, because she stated that on this occasion she was aware of the doorsill and was not really watching where she put her foot. Thus, her knowledge was equal to the proprietor’s. Roberts v. Garden Services, Inc., 182 Ga. App. 573 (356 SE2d 669) (1987); Folks, Inc. v. Dobbs, supra; Forde v. C & S Georgia Corp., supra; Westall v. M & M Supermarkets, Inc., 174 Ga. App. 155 (329 SE2d 237) (1985); see Emory University, Inc. v. Duncan, 182 Ga. App. 326 (355 SE2d 446) (1987). Defendant is entitled to summary judgment.

Atkinson, supra, does not require a different result. That case involved a pile of construction debris, of which the plaintiff was admittedly aware, but also involved a hidden danger, a sharp object contained in that debris which caused the injury. As stated by this Court in that opinion, “. . . the present case is distinguished from such cases as Forde v. C & S Ga. Corp., [supra]; White v. Fred F. French Mgt. Co., [supra]; Westall v. M & M Supermarkets, [supra]; and League v. Marshall, 169 Ga. App. 32 (311 SE2d 192) (1983), wherein the plaintiffs’ injuries resulted from contact with structural fixtures whose presence was both obvious and static.” (Emphasis supplied.) Atkinson, supra at 140; Hadaway v. Cooner Enterprises, 172 Ga. App. 113 (321 SE2d 830) (1984). Here there was a discernible object.

Decided September 29, 1987.

Mark A. Gonnerman, Dawn G. Benson, for appellant.

Stephen J. Kaplan, R. Ripley Bell, Jr., for appellee.

Judgment reversed.

McMurray, P. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur specially. I cannot agree that Atkinson v. Kirchoff Enterprises, Inc., 181 Ga. App. 139 (351 SE2d 477) (1986), is so easily distinguished from the case at bar. I dissented in Atkinson because it was clear to me that the injured party there “failed to exercise due diligence for her own safety, despite her recognition and appreciation of a known danger,” when she voluntarily chose to “pick” her way through debris littering a sidewalk. In fact, as between deliberately walking through debris which one should know is dangerous, and the situation presented here, to wit: negligently tripping on a doorsill of which one is aware, if either case should be heard by a jury, in my view the latter seems more deserving than the former. Nevertheless, in both cases the injured party’s knowledge is at least equal to that of the proprietor’s, and being committed to the rule that the true ground of the proprietor’s liability is his superior knowledge of the hazard, Roberts v. Gardens Services, Inc., 182 Ga. App. 573 (356 SE2d 669) (1987), I concur in the judgment.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    75011.
    CHISHOLM v. FULTON SUPPLY COMPANY.
    (361 SE2d 540)
   Birdsong, Chief Judge.

Willie B. Chisholm brings this appeal from the grant of summary judgment to appellee, Fulton Supply Company. Chisholm entered the business premises of Fulton Supply to purchase duct tape, and as he was leaving the building he slipped and fell on the stairs. He was hospitalized and an operation was required. Fulton Supply’s insurer paid $1,000 to Chisholm in medical benefits. Thereafter, Chisholm wrote to Winship Leadingham, the President of Fulton Supply, demanding $35,000. The insurance adjustor discussed the case with appellant and forwarded him a check for $2,700, marked “any and all claims against Fulton Supply Company.” Chisholm cashed the check and filed this action. Fulton Supply’s motion for summary judgment was granted on the issues of negligence as well as accord and satisfaction. Chisholm appeals. Held:

1. Appellant contends there is a genuine issue of material fact “as to the existence of a defect in the steps, the defendant’s superior knowledge of same and the defect as proximate cause of plaintiff Chisholm’s injuries.” Leadingham’s deposition testimony established that this building was constructed in 1922. The entrance way has two doors which swing outward. The entrance is 8 feet and 8 inches in width. From the door to the first step is 14 inches. There are seven steps, and each is 5.75 inches high, and from the front to the back is 11.75 inches — including the front nosing. The steps are made of clay tile. There were no broken, chipped, cracked or uneven tiles. Handrails are installed on each side of the steps. A janitor has a regular routine of sweeping the steps and seeing that they are kept in good condition. Leadingham has been employed at Fulton Supply since 1961 and he had never before heard of anyone slipping, falling, or having any trouble walking up or down these steps.

Chisholm was deposed and could give no reason for his fall. He was asked: “Q. . . . What caused you to fall? A. That’s the question. That is the question. Q. I’m looking for an answer. ... A. They didn’t find nothing [sic] down there when I fell. Q. You don’t know what you fell on? A. No.” Appellant argues that the steps’ “design does not conform with the Rules of the Georgia Safety Fire Commissioner adopted by the City of Atlanta in its Building Code,” hence appellant’s “fall was caused by the defendant’s failure to keep the premises safe and more particularly a defect in the steps.” Counsel claims “[t]he steps in the instant case are defectively constructed. . . . The defect in the steps is that the risers and treads are not properly proportioned.” The only evidence in support of the claim of defective construction is the Atlanta Building Code, which was adopted by the City Council on March 10, 1983, and approved by the Mayor on March 11, 1983. The building was constructed in 1922. Reliance upon a slight deviation in the height of the risers (shown to be a valid non-conforming use) is the barest of speculation. There is no evidence by Mr. Chisholm that a slightly higher step caused his fall. In fact he clearly stated he did not know what caused his fall. Nor was there any evidence of an expert nature that the non-conformance of size was more likely to cause a fall. In short, the evidence of the slightly higher step is a non-sequitur and, without evidence of a causal connection, irrelevant.

The owner or occupier of land is under a duty to invitees to keep the premises and approaches safe. An invitee must also exercise ordinary care for his own safety. McGrew v. S.S. Kresge Co., 140 Ga. App. 149, 151 (230 SE2d 119). Thus, “there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care.” Georgia Farmers’ Market Auth. v. Dabbs, 150 Ga. App. 15, 16 (256 SE2d 613). The true basis for liability of a proprietor to an invitee is the superior knowledge of the proprietor of a condition that may subject the invitee to an unreasonable risk of harm. Sutton v. Sutton, 145 Ga. App. 22, 25 (243 SE2d 310). However, a proprietor is not an insurer of an invitee’s safety, and is not liable for injuries resulting from a condition which is readily observable and which should have been seen and appreciated by the invitee before he exposed himself to it, and under such circumstances there is no duty to warn because the invitee has the information which would be conveyed by a warning. Hammonds v. Jackson, 132 Ga. App. 528, 531 (208 SE2d 366). Appellant had been a customer of appellee for months, and had entered and used these stairs to make his purchase before he slipped and fell while leaving on this occasion. His knowledge as to the “risers and treads” of the stairs was equal to that of the proprietor.

Decided September 29, 1987.

Joel I. Liss, for appellant.

Albert J. DeCusati, M. David Merritt, for appellee.

“ ‘[P]roof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.’ [Cit.] To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327).

Appellant’s allegations as to a defect in the steps because of their construction is not supported by Atlanta’s adoption of its Building Code in 1983 where the building was built in 1922. The stairs were “legal as a nonconforming use.” Ray v. Gallant-Belk Co., 147 Ga. App. 580, 581 (249 SE2d 635). Appellee having shown a valid nonconforming use, the trial court did not err in granting summary judgment. Garnett v. Mathison, 179 Ga. App. 242 (1) (345 SE2d 919).

2. As the trial court properly granted summary judgment to defendant, any issue as to an accord and satisfaction is moot.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    74428.
    CLARK v. THE STATE.
    (361 SE2d 682)
   Pope, Judge.

Jeffrey Lane Clark brings this appeal following a bench trial which resulted in his convictions and sentences of trafficking in cocaine, possession of diazepam, and possession of marijuana with intent to distribute. The errors enumerated challenge the sufficiency of the evidence and the execution of a search warrant pursuant to which the illegal drugs were seized. Held:

For the purpose of resolving issues of fact in the court below, the parties stipulated the following facts as true. On November 16, 1984 officers of the Atlanta Bureau of Police Services secured a search warrant for the premises located at 1080 Monroe Drive in Atlanta, Fulton County, Georgia. The facts contained in the affidavit for the warrant were stipulated to be correct and showed that on November 15 the affiant received information from a confidential informant who stated that Richard Stanley Baldwin was selling, storing and concealing MDA and LSD at the Monroe Drive address. On November 16 the informant was searched and given a quantity of city funds to attempt to purchase drugs from Baldwin. After being searched the informant was observed by affiant and other officers to go to the subject premises, knock and follow a white male around the south side of the house. After a brief period the informant exited the house and met with the officers and gave them one brown vial containing suspected MDA and one plastic envelope containing four suspected LSD tabs. The informant was then searched again. Prior to entering the subject premises the informant was under constant surveillance by the officers until he delivered the purchased drugs to them.

At or about 8:20 p.m. on November 16 the search warrant was executed at the Monroe Drive address. At the time the officers arrived at the premises, Baldwin was standing on the front porch of the house, conversing with Clark. When the officers approached, Baldwin ran inside the house and closed and locked the door. The house was Baldwin’s, and Clark was a visitor. Clark was detained in the front yard of the premises and frisked. In his pants was a hard object which was seized. The object was a vial containing liquid believed to be contraband. Clark was then arrested. The officers also found $1,420 in currency on Clark’s person. Of the currency, $80 checked out as city funds previously employed and identified in the affidavit to the search warrant.

In the driveway of the premises was a white Cadillac limousine with black-tinted windows. While searching defendant Clark, officers observed movement in the Cadillac. They proceeded to ask co-defendants Richard Berry and Derrick Avery Lumpkin to step from the vehicle. They were also frisked and taken into the residence. Once inside, Berry and Lumpkin were advised that they were free to leave. However, a search of the Cadillac produced contraband and weapons, and Berry and Lumpkin were then arrested. When initially removed from the vehicle, Berry advised officers that he was the driver for a named attorney and had driven Clark to the Monroe Drive address in the Cadillac. Defendants Clark, Berry and Lumpkin had an expectation of privacy in the Cadillac limousine, having driven together to the subject premises in said Cadillac.

A search of the Cadillac produced a pistol and semi-automatic rifle and ammunition, as well as scales, a “cutting kit” and miscellaneous drug paraphernalia. The search of the car also produced 147 grams of marijuana, 117 grams of cocaine, and quantities of diazepam and MDA. The search of Baldwin’s house produced 653 grams of marijuana and quantities of LSD, methamphetamine, MDA and diazepam.

1. “The evidence in the instant case would authorize a finding that the defendant [Clark], and the others having equal access to the drugs, were in joint constructive possession of the contraband. [Cits.]” Garvey v. State, 176 Ga. App. 268, 275 (335 SE2d 640) (1985); Castillo v. State, 166 Ga. App. 817 (2) (305 SE2d 629) (1983). Cf. Blount v. State, 181 Ga. App. 330 (3) (352 SE2d 220) (1986), wherein defendant husband was not connected to the contraband discovered in his wife’s automobile. Viewing the evidence in a light most favorable to the verdict, we find the evidence sufficient to exclude every reasonable hypothesis save defendant Clark’s guilt and also sufficient to enable any rational trier of fact to have found him guilty of the subject trafficking and possession charges beyond a reasonable doubt.

2. We find no merit in Clark’s assertion that the search of the subject Cadillac exceeded the scope of the search warrant. The vehicle was parked within the curtilage of the subject premises, and there was some evidence to connect the vehicle with the premises, viz, Clark’s possession of both suspected drugs (in a vial similar to that which had earlier been obtained at the premises by the confidential informant), and also city funds which had been used to purchase drugs from Baldwin, the owner of the premises. See Blount v. State, 181 Ga. App. at 335-336, supra; Albert v. State, 155 Ga. App. 99 (270 SE2d 220) (1980).

3. We likewise find no merit in Clark’s assertion that the seizure of the currency from his wallet was without justification. Under the circumstances stipulated in this case, the police officers were authorized to frisk Clark “[t]o prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.” OCGA § 17-5-28 (2). See Wood v. State, 224 Ga. 121 (1C) (160 SE2d 368) (1968); Campbell v. State, 139 Ga. App. 389 (3, 4) (228 SE2d 309) (1976), cert. den., 429 U. S. 1083 (1977). Cf. Ybarra v. Illinois, 444 U. S. 85 (II) (100 SC 338, 62 LE2d 238) (1979), holding that a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. The vial containing suspected drugs was thus properly seized pursuant to the warrant from the pocket of Clark’s pants, cf. Wyatt v. State, 151 Ga. App. 207 (1b) (259 SE2d 199) (1979), providing probable cause for Clark’s arrest. It is settled law that an officer at the time of a lawful custodial arrest may, even without a warrant, make a full search of the person of the accused. Stoker v. State, 153 Ga. App. 871 (1) (267 SE2d 295) (1980).

Decided September 15, 1987

Rehearing denied September 30, 1987

W. Bruce Maloy, for appellant.

Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74528.
    WINFREY et al. v. SOUTHWEST COMMUNITY HOSPITAL, INC.
    (361 SE2d 522)
   Pope, Judge.

Plaintiffs, husband and wife, instituted this action against defendant hospital seeking, inter alia, damages resulting from defendant’s alleged failure to refund overpayments made by plaintiffs and their insurers for medical expenses incurred by plaintiff wife while a patient at defendant hospital. At the time suit was brought, it appears that plaintiffs’ insurers had been refunded the amounts overpaid by them on plaintiffs’ behalf and that plaintiffs were individually owed $26.05. However, plaintiffs also sought class action certification to represent “[a]ll patients, third-party insurance carriers, or any other individuals, firms, corporations or other entities who are due refunds for overpayments on said patients’ accounts. . . .” The trial court denied both this motion and plaintiffs’ motion to add as defendants the individual members of defendant’s Board of Trustees. The jury returned a verdict for defendant and plaintiffs appeal.

1. Plaintiffs first argue that the trial court erred in denying their motion for class certification. “It is well established that the discretion of the trial [court] in certifying or refusing to certify a class action is to be respected in all cases where not abused. [Cits.] Although it was held in Ga. Invest. Co. v. Norman, 229 Ga. 160 (190 SE2d 48) [(1972)] that class actions are permissible where the right sought to be enforced is ‘common’ to the members of the class, albeit neither joint, nor derivative, nor one affecting specific property, the court may deny certification, where granted a common right, individual questions of law or fact as between the defendant and the individual class plaintiffs would yet predominate. One of the facets of the litigation raising such individual questions is the [determination of] individual damages which would have to be assessed in each of the myriad cases.” Hill v. Gen. Fin. Corp., 144 Ga. App. 434, 436 (241 SE2d 282) (1977). See also Tanner v. Brasher, 254 Ga. 41 (2) (326 SE2d 218) (1985); Williams v. Cox Enterprises, 159 Ga. App. 333 (5) (283 SE2d 367) (1981). In the present case, defendant’s liability to the proposed class members can be determined only by first ascertaining the status of each individual patient’s account and, if an overpayment is found, by then determining the amount of overpayment and the persons or entities (i.e., the patient, the patient’s insurer or all of the above) to whom a refund is owing. “Where the resolution of individual questions plays such an integral part in the determination of liability, a class action suit is inappropriate.” Tanner, supra at 45. Accordingly, we find no abuse of discretion in the trial court’s refusal to certify the case sub judice as a class action pursuant to OCGA § 9-11-23.

Decided September 15, 1987

Rehearing denied September 30, 1987

F. Glenn Moffett, Jr., L. Prentice Eager III, for appellants.

Alfred J. Turk, Jr., Lewis C. Horne, Jr., for appellee.

2. To the extent possible based on the voluminous but incomplete record before us, we have examined plaintiffs’ remaining enumerations and likewise find them to be without merit.

Judgment affirmed.

Birdsong, C. J., and Been, P. J., concur.


author: Benham, Judge.

text:
    74684.
    CANTRELL v. THE STATE.
    (361 SE2d 689)
   Benham, Judge.

Appellant was convicted of robbery by force under an indictment which alleged that appellant took a gold necklace from Buffington through the use of force by hitting, beating, and striking Buffington about the face. Buffington testified that he met appellant on the street, that they knew each other from high school, that appellant asked to see the necklace Buffington was wearing, that appellant put the necklace in his pocket and turned to walk away, that Buffington followed appellant, demanding the return of the necklace, and that appellant and another man hit him in the face. Appellant’s testimony was that Buffington asked him to barter the necklace for cocaine and that when his efforts to do so failed, Buffington sold him the necklace for $30.

1. In his first two enumerations of error, appellant contends that the evidence was not sufficient to support his conviction and that the paucity of evidence rendered erroneous the giving of a charge on robbery by force. Specifically, appellant contends that the evidence shows that the force employed was not contemporaneous with the taking, rendering proof of robbery by force impossible. See Hicks v. State, 232 Ga. 393, 402 (207 SE2d 30) (1974). We disagree.

Although appellant had custody of the necklace pursuant to Buffington’s consent, possession of the necklace did not change to appellant until Buffington, by means of violence, had been dissuaded from seeking its return. That being so, it was the force which effected the taking. See Grant v. State, 125 Ga. 259 (1) (54 SE 191) (1906); Byrd v. State, 171 Ga. App. 344 (1) (319 SE2d 460) (1984); Rivers v. State, 46 Ga. App. 778 (4) (169 SE 260) (1933). The evidence presented was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of robbery by force. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Rivers, supra.

2. In his final enumeration of error, appellant complains of the admission of testimony relating to a statement made by appellant to a police officer. It developed at trial that appellant had made two statements. The first one, which was exculpatory, was admitted. When the State attempted to present testimony concerning the second statement, appellant objected on the ground that the State had failed to provide the defense with a copy of the statement. See OCGA § 17-7-210. In the ensuing colloquy, it appeared that defense counsel had asked at a preliminary hearing whether there were any statements by appellant, that the prosecuting attorney had stated in his place that there was only one and that he would provide a copy of it without a motion, that the police officer to whom appellant made the statement did not report the statement until the morning of trial, and that the State did not reveal the statement to the defense until the testimony about the statement was elicited at trial. Recognizing that there had been no written motion pursuant to OCGA § 17-7-210, the trial court nonetheless excluded the testimony because of the State’s failure to disclose the statement for several hours. The State subsequently sought admission of the excluded testimony on rebuttal. The trial court ruled that the State could use the testimony only if appellant took the stand and testified contrary to the statement, and then denied making the statement on cross-examination. Appellant did both things, and the trial court allowed the State to put on evidence of a statement in which appellant admitted the robbery and implicated another person. On appeal, appellant contends that the testimony was inadmissible because of the State’s failure to disclose it and because the statement was confidential.

Since appellant did not file a written motion under OCGA § 17-7-210, exclusion of the statement was not mandated by the statute. However, it appears that the trial court’s action in excluding the testimony was within its broad discretion in controlling the conduct of trial. By the same token, it appears that the admission of the testimony after appellant took the stand and testified to a state of facts contrary to his in-custody statement was within the trial court’s discretion as well. “It is the duty of the trial court to control the trial of the case and to ensure a fair trial to both sides on the disputed issues in the case. Sometimes this requires interference by the court with the conduct of counsel or with a witness in that trial. The trial judge has broad discretion in handling these matters, and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness. While another judge may not have conducted the trial of this case in the same way as this trial judge did, we do not agree the trial court interfered so as to deprive the appellant of a fair trial. [Cits.]” Westerfield v. State, 176 Ga. App. 195 (3b) (335 SE2d 702) (1985).

Decided September 17, 1987

Rehearing denied September 30, 1987.

Robert E. Andrews, James M. Walters, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

The evidence at trial does not support appellant’s contention that the statement was excludable on the basis of a privilege of confidentiality. The police officer who testified about the statement swore that appellant volunteered the information in an effort to make a deal for leniency, a deal the officer had refused and continued to refuse. The fact that the police officer was also a licensed attorney did not make the statement confidential since there was no attorney-client privilege established. Spence v. State, 252 Ga. 338 (4) (313 SE2d 475) (1984). The officer’s testimony that he considered the statement confidential does not raise any privilege of which we are aware, and appellant has suggested none cognizable at law. The evidence established the statement’s voluntary nature, and the trial court’s finding in that regard was not clearly erroneous. We hold, therefore, that there was no error in the admission of the testimony. Spence, supra, Division 2 (c).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    74688.
    GAYTON v. THE STATE.
    (361 SE2d 691)
   Birdsong, Chief Judge.

Larry Dean Gayton was convicted upon his plea of guilty of the offense of driving under the influence. With the joint consent of the prosecutor and the trial court, Gayton secured the asserted right to file an appeal based upon a claim of selective prosecution notwithstanding his plea of guilty. Held:

Though we are of the opinion that a plea of guilty waives any asserted trial errors (Taylor v. State, 169 Ga. App. 779 (315 SE2d 288)), we will honor the promise of the right of appeal upon the issue stipulated by agents of the State. See State v. Hanson, 249 Ga. 739 (295 SE2d 297). Gayton bases his claim of illegal prosecution upon an unfair and discriminatory selectivity for prosecution for the crime of DUI. This claim arises directly out of the investigation of the conduct of the Director of the Georgia State Patrol and the members of several of that agency’s district offices. The trial court admitted as evidence the investigation of the State Patrol by the GBI as well as a memorandum from the Attorney General outlining an independent investigation of the same subject. It is undisputed that an unknown number of citizens of Georgia had driving tickets, including moving traffic violations as well as DUI charges, “fixed.” The evidence reflects that the investigation uncovered numerous tickets being fixed at the request of wealthy citizens, politically prominent personages, sports figures, and persons conferring privileges or personal goods in exchange for the fixing of tickets. The practice appears to have been the result of personal favors being exercised by members of the State Patrol or at the direction of higher authority in the State Patrol. The number of such fixed tickets is apparently not discoverable inasmuch as records are not available or do not reflect the transmutations from a more serious offense to a less serious or dismissed disposition. It is clear however that within the overall number of traffic offenders, including DUI offenses, within this state, the number of tickets “fixed” is small, and, human vice being what it is, surreptitiously probably continues.

Within this context, we are required to evaluate the claim of selective prosecution. It is clear that within the contemplation of the law applicable to the theory of selective prosecution, that to succeed on a claim of selective prosecution, Gayton has the burden of showing: (1) that others similarly situated uniformly have not been prosecuted, and (2) that the allegedly discriminatory prosecution of himself was based upon an impermissible motive. Sabel v. State, 250 Ga. 640, 643 (4) (300 SE2d 663). Related within this same context, we can find no indication of a vindictive prosecution for there is no evidence that the State sought to prosecute Gayton or to increase the punishment for the offense of DUI in response to his exercise of any of his constitutional rights. See United States v. Burt, 619 F2d 831, 836 (9th Cir. 1980).

Decided September 17, 1987

Rehearing denied September 30, 1987

Virgil L. Brown, Christopher C. Edwards, for appellant.

John T. Newton Jr., Solicitor, for appellee.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Staff Assistant Attorney General, amici curiae.

The fact that some persons are wrongly singled out for special favor does not justify a charge of discrimination or selective prosecution by those who are not.

The burden was on Gayton to prove a selective prosecution by showing (1) that others generally are not prosecuted for the same misconduct, and (2) the decision to prosecute Gayton was based upon impermissible grounds such as race, religion or exercise of constitutional rights. Sabel v. State, supra. While Gayton has shown that through the improper acts of a few state law enforcement officials a select few citizens have escaped the penalty of the law for DUI violations, there is a failure to establish that DUI offenders generally are not punished. Likewise, there is no evidence in this record that Gay-ton was treated any differently than the vast majority of other DUI offenders in this state. Certainly there is no evidence that Gayton was selected for punishment because of his race, religion, or exercise of constitutional rights.

It is clear that all prosecutions are to some degree selective. Prosecutors and law enforcement officials in the execution of their duties constantly and routinely practice some degree of selectivity in deploying their limited enforcement resources. Thus selective prosecution based upon necessity and legal actions clearly is not prohibited. United States v. Burt, supra. Gayton has not shown successfully that he has been singled out for prosecution for impermissible reasons by showing that a comparatively few citizens for improper reasons have not been prosecuted for the same crime. Sabel v. State, supra. We find no merit in this enumeration.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74709.
    CRIDER v. CITY OF ATLANTA.
    (361 SE2d 520)
   Pope, Judge.

Plaintiff Crider was injured when she tripped and fell on the sidewalk of a downtown Atlanta street. She alleged the sidewalk was defective because of a discrepancy in elevation of approximately one inch between two adjacent sections of concrete. Plaintiff appeals from the trial court’s grant of a directed verdict to defendant City of Atlanta.

1. By statute, a municipality is relieved of liability resulting from a defect in a public road or sidewalk “when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” OCGA § 32-4-93 (a). Implied or constructive notice of a defect may be shown in a variety of ways; for example, testimony as to how long the defect had existed prior to the accident (see City of Silvertown v. Harcourt, 51 Ga. App. 160 (2) (179 SE 772) (1935)), objective evidence that the defect had existed over time (Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528 (2) (307 SE2d 47) (1983)), or evidence that other persons had also fallen as a result of the same condition over a period of years (City of Rome v. Stewart, 116 Ga. 738 (1) (42 SE 1011) (1902)). Notice may also be imputed to the city from the knowledge of its own agents or employees. City of Rome v. Stone, 46 Ga. App. 259 (5a) (167 SE 325) (1933).

In the case at hand defendant city denied actual notice of the alleged defect. Plaintiff presented no evidence whatsoever showing the city had implied or constructive notice. Even if the plaintiff could prove the existence of the alleged defect, which was a disputed matter, she was still not relieved from the burden of proving notice of the defect and negligence on the part of the city. See Broadnax v. City of Atlanta, 149 Ga. App. 611 (255 SE2d 86) (1979). Where no evidence is presented which would authorize a finding of actual or constructive knowledge of an alleged defect, judgment should be entered in favor of the municipality. See City of Atlanta v. Hightower, 177 Ga. App. 140 (338 SE2d 683) (1985); City of Barnesville v. Sappington, 58 Ga. App. 27 (197 SE 342) (1938).

2. We reject plaintiff’s argument that the evidence presented raised the issue of negligent inspection. Atlanta City Ordinance § 9-3089 imposes a duty upon the Commissioner of Public Works to inspect public sidewalks and make necessary repairs. The construction of a statute or ordinance must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465 (1) (143 SE 426) (1928). This statutory duty to inspect cannot be interpreted as requiring constant monitoring of all public sidewalks so as to confer instantaneous implied notice of all defects or needs for repair. Cf. City of Barnesville v. Sappington, supra at 30. Moreover, plaintiff failed to present any evidence showing a breach of the duty to inspect and repair. The Chief of Street Operations testified that supervisory personnel in that department made continuous inspections of the sidewalks in the course of their daily work. He testified that all complaints from citizens or reports of needs for repair from city personnel were recorded in writing and maintained in the department’s files. The city also kept records of repairs or construction performed on the sidewalks. According to the official’s testimony, a thorough search of these files revealed no complaints or reports of defects and no record of repairs made to the area of the sidewalk where plaintiff fell. Instead of supplying evidence of negligent inspection, the absence of any record of the alleged defect supports the city’s denial of knowledge of the defect.

Decided September 14, 1987

Rehearing denied September 30, 1987

Charles M. Taylor II, Robert M. Goldberg, for appellant.

Thomas A. Bowman, Bruce Johnson, Nina M. Radakovich, Marva Jones Brooks, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74789.
    GOOLSBY v. THE STATE.
    (361 SE2d 684)
   Pope, Judge.

Defendant Goolsby was employed as an Atlanta firefighter. He was the recipient of several citations for bravery and saving lives. Unfortunately for defendant, in September 1985 he ran into Paul Lester, an old acquaintance who was known by defendant to have a criminal record of convictions and arrests for selling drugs. What defendant did not know was that Lester was “working off” his sentences by serving as an informant for both the City of Atlanta and Clayton County police. From September through November, Lester called defendant between twenty and thirty times asking defendant to help him sell cocaine. Lester appealed to defendant’s sympathy by claiming he needed to make money by selling drugs in order to pay for medical care for his mother who was dying of cancer. After repeatedly refusing Lester’s requests, defendant finally agreed to cooperate.

On the afternoon of November 25, 1985, defendant met Lester and an undercover police officer, posing as a drug dealer, at the parking lot of a drive-in restaurant. The officer got into defendant’s vehiele and defendant sold him one-eighth ounce of a substance which later proved to be cocaine. According to the officer’s testimony, after he had already returned to Lester’s automobile defendant approached that vehicle and offered to sell the officer twenty tablets of Valium. He asked the officer if he was interested in purchasing a greater quantity and arranged a meeting later on that evening to consummate the deal. Later in the evening the officer and Lester met defendant at the fire station where he worked. Defendant sold the officer 100 additional tablets of Valium. According to the officer, defendant boasted about his own cocaine habit and claimed he had obtained a second mortgage on his house to support the habit. He also boasted about driving the fire engine while under the influence of Valium. Defendant then offered to sell the officer more cocaine. The following day the three men met and defendant sold the officer two additional ounces of cocaine. Defendant was arrested at this third meeting.

At trial the jury acquitted defendant of the first instance of selling cocaine on the ground of entrapment. However, he was found guilty on three counts of violating the Georgia Controlled Substances Act for selling Valium and for the second sale of cocaine. Defendant appeals the convictions claiming the trial court erred in failing to direct a verdict of acquittal on the ground defendant had established the defense of entrapment and the prosecution failed to disprove it.

Here, as in Robinson v. State, 145 Ga. App. 17 (243 SE2d 257) (1978), which resulted in acquittal, there was no evidence that the accused had been regularly engaged in the illegal sale of drugs. As in Robinson, defendant’s testimony that he was induced to arrange the sale of contraband by persistent solicitation and undue persuasion of the informant was not rebutted and the informant did not testify. However, there exists no “per se rule that a defendant is entitled to a directed verdict where the informant is not called to rebut the defendant’s testimony of entrapment. . . . [A] defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred.” State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981).

Here, the undercover officer testified all sales subsequent to the initial exchange of cocaine were initiated by the defendant himself and not by the informant. Defendant denies he initiated the additional sales and claims he was instructed by the informant to act as if he was conversant with drugs and could provide any amount or type of illegal drug to the undercover officer. Nevertheless, the officer’s testimony “was sufficient to raise a jury question as to whether [defendant] was entrapped into the commission of the crime.” Armand v. State, 164 Ga. App. 350, 352 (296 SE2d 734) (1982) (where, as in the case at hand, there was evidence that after the initial sale of drugs, which had been arranged by the informant, the officer dealt directly with defendant in setting up the subsequent sale at which the arrest was made).

Decided September 15, 1987

Rehearing denied September 30, 1987

John A. Nuckolls, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, H. Allen Moye, Joyce M. Averils, Assistant District Attorneys, for appellee.

“This is one of those cases in which a question of fact was presented as to entrapment for determination by the jury. The evidence did not, however, demand a finding that defendant . . . was entrapped into the commission of a crime.” State v. Royal, supra at 311-312. “In this case, the issue of whether the [Sjtate impermissibly encouraged the [defendant] to evil was properly submitted to the jury, and the evidence authorized a rational trier of fact to find beyond a reasonable doubt that the [defendant] had not been entrapped.” Pierce v. State, 180 Ga. App. 847, 849 (350 SE2d 781) (1986).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74830.
    THE STATE v. BENZAQUEN.
    (361 SE2d 503)
   Birdsong, Chief Judge.

The State appeals from the judgment of the trial court sustaining defendant’s demurrer to the indictment. The indictment charged Ernesto Benzaquen with trafficking in cocaine by bringing into the state “more than 400 grams of cocaine. . . This offense is alleged to have occurred on December 8, 1985, and was returned during the 1985 October Term of the Clarke Superior Court.

The defendant’s demurrer alleged the statute with which he was charged with violating, OCGA § 16-13-31, was repealed July 1, 1986, and the repealing act did not contain a savings clause for prosecutions pending at the time of repeal. On December 8, 1985, OCGA § 16-13-31 (a) defined trafficking in cocaine by proscribing “actual possession of 28 grams or more of cocaine. . . .” The 1986 General Assembly amended OCGA § 16-13-31 (a) and redefined the offense of trafficking in cocaine as “actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine. . . This act took effect July 1, 1986, and defendant’s demurrer was granted on March 4,1987. Defendant cited Robinson v. State, 256 Ga. 564 (350 SE2d 464) as authority for his contention that the act under which he had been indicted was repealed without a savings clause and prosecution of prior offenses must be abated. Robinson at p. 565 held that “ ‘the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them.’ ” But, we find Robinson is distinguishable from the instant appeal.

Decided September 9, 1987

Rehearing denied September 30, 1987

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.

What necessitated the ruling in Robinson was the fact that appellant was charged with possession of “more than 28 grams of a mixture containing cocaine,” which was no longer a crime after the repeal of the statute, July 1, 1985, a date before the entry of final judgment in Robinson. That “mixture” could have involved an amount of cocaine of less than 28 grams under the 1985 law, or could have contained less than 10% pure cocaine under the 1986 law. The conduct in this case, trafficking in over 400 grams of cocaine, was an offense under the law as it stood at the time the defendant was caught, at the time of his indictment, at the time the trial court sustained the demurrer, and as the law stands today. OCGA § 16-13-31 (a) as amended.

While a savings clause will permit prosecution of an offense which preceded the repeal of the statute, a savings clause is not the only mechanism by which a prosecution might be validated in a particular case. “The rule is well established that prosecutions under statutes impliedly or expressly repealed while the case is still pending on direct review must abate in the absence of a demonstration of contrary congressional intent or a general saving statute. For, ‘(p)rosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it.’ ” (Emphasis supplied.) Pipefitters Local Union No. 562 v. United States, 407 U. S. 385, 432 (92 SC 2247, 33 LE2d 11).

In Barrett v. State, 183 Ga. App. 729 (360 SE2d 400), we found such a clear demonstration of legislative intent that the prosecution in that case should not abate with the repeal and simultaneous redefining of the crime and reenactment of harsher criminal sanctions. The same is true in this case. The conduct in this case has not been decriminalized at any time. The prosecution did not abate.

Judgment reversed.

Deen, P. J., and Pope, J., concur.

Earnest DePascale, Jr., John J. McArthur, for appellee.


text:
    74572.
    WAGNER v. HOWELL ENTERPRISES, INC.
    (361 SE2d 698)
   Pope, Judge.

Appellee Howell Enterprises, Inc. brought suit in the Superior Court of Gwinnett County against appellant Hilda Susan Wagner seeking to recover the amount allegedly owed by appellant on a promissory note. This appeal follows the trial court’s grant of summary judgment to appellee and the dismissal of appellant’s counterclaim.

1. In her first enumeration of error appellant contends that the trial court erred in refusing to consider parol evidence that the promissory note was procured by fraud and was not intended to create a bona fide indebtedness between the parties. In support of her contention appellant submitted an affidavit stating that her mother told her that the “$20,000 would come out of [appellant’s] part of the settlement of [her father’s] estate and [appellant] would not have to repay it,” and further that Mr. Kane, “the family lawyer and accountant,” told her that the note was for tax purposes and that repayment would never be demanded. Appellant’s husband, who was present when appellant executed the note, also submitted an affidavit averring that Mr. Kane stated that the note was for tax purposes and repayment was not expected.

We find no error in the trial court’s refusal to admit evidence of these alleged oral agreements concerning repayment of the debt evidenced by the note. The note discloses a contract between the parties, consisting of a promise to pay $20,000 on demand, plus costs of collection and 15% attorney fees if collected by law or through an attorney. “[Appellee’s] evidence established that the [signature] on the promissory note [was] genuine, that [appellant received the principal amount stated] and that the note was in default. [Appellant’s] claim of fraud rests solely upon the alleged oral agreement [that the note was for tax purposes and consequently payment of the note would never be demanded]. It is a well established rule that in the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note. Motz v. National Bank of Ga., 156 Ga. App. 871, 872 (275 SE2d 809) (1981). Further, the only fraud which would relieve a party from an obligation which he has signed, where that party can read and write and is not otherwise under any disability, is that fraud which prevents him from reading what he signed. Wall v. Federal Land Bank, 156 Ga. App. 368, 372 (274 SE2d 753) (1980). . . . Fraud cannot be predicated upon statements which are promissory in their nature as to future acts. First Nat. Bank &c. Co. v. Thompson, 240 Ga. 494, 495 (241 SE2d 253) (1978). Because [appellant’s] claim of fraud was based solely upon statements allegedly made about future payments, no genuine issue as to any material fact has been raised. [Appellee] was thereby entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” (Indention omitted.) Marchman Oil & Chem. Co. v. Southern Petroleum &c. Co., 167 Ga. App. 691 (1) (307 SE2d 509) (1983). See also Curtis v. First Nat. Bank of Commerce, 158 Ga. App. 379 (1) (280 SE2d 404) (1981); Boatman v. C & S Nat. Bank, 155 Ga. App. 848 (2) (273 SE2d 190) (1980); Hyman v. Horwitz, 148 Ga. App. 647 (1) (252 SE2d 74) (1979); Rizk v. Jones, 148 Ga. App. 473 (251 SE2d 360) (1978); Cooper v. Mercantile Nat. Bank, 137 Ga. App. 605 (2) (224 SE2d 442) (1976); Pulliam v. Merchants &c. State Bank, 33 Ga. App. 68 (2) (125 SE 509) (1924).

Decided September 30, 1987.

Richard L. Roble, for appellant.

2. Appellant next posits the argument that the trial court erred in refusing to dismiss appellee’s action because appellee was obligated to file its claims on the note as a compulsory counterclaim in an action filed by appellant against appellee (and others) in the Superior Court of Fulton County. Again we find no error. In construing OCGA § 9-11-13 (a) and (e) this court has held that claims that mature or are acquired after the pleading has been served are permissive rather than compulsory counterclaims. Jenkins v. Martin, 142 Ga. App. 573 (236 SE2d 542) (1977). As noted by appellant, the record in the present case shows that the appellee did not demand repayment of the note until approximately one year after appellant filed her Fulton County action. The record also shows that appellant then waited several more months before declaring the note in default. Under these facts, we cannot say that appellee was obligated to bring its action as a compulsory counterclaim to the pending Fulton County action; hence, the trial court did not err in refusing to dismiss appellee’s claim on this basis.

3. Lastly, we also find no error in the trial court’s dismissal of appellant’s counterclaim in which appellant attempted to reassert allegations identical to those presented in her Fulton County action, said action having been decided adversely to appellant on defendants’ motions for summary judgment and dismissal. See Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

Jane F. Vehko, for appellee.


author: McMurray, Presiding Judge.

text:
    74585.
    FRANKLIN v. THE STATE.
    (361 SE2d 700)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of (felony) theft by shoplifting. Held:

1. One of the State’s witnesses, a customer service manager at a Wal-Mart store, testified as to observing defendant walking through the store carrying a Wal-Mart bag, which was unusual in that it was not stapled and did not have a receipt at the top of it. The customer service manager testified that she approached defendant asking to see his receipt, that defendant kept walking, and that she walked alongside of defendant continuing her attempt to get defendant to show her a receipt or stop and let her get a manager.

The State then attempted to elicit certain demonstrative evidence from the customer service manager, the assistant district attorney stating: “If you would, walk up with me, I am going to be [defendant] and show the jury, first of all walk along beside me like you did him, so they can see how far you were apart and stay [sic] stop at the distance you walked beside him.” Defense counsel objected and stated: “I presuppose that [the assistant district attorney] is able to duplicate the behavior of the perpetrator in this crime and is not admissible. There is no showing that, no showing of testimony by her as to what happened so that [the assistant district attorney] could duplicate that.” The trial court allowed the demonstration to be presented before the jury.

Defendant enumerates as error the trial court’s “allowing the district attorney to demonstrate the speed at which the defendant was allegedly moving when leaving the store.” However, defendant’s objection at trial fails to preserve the issue raised on appeal. Generally, grounds which may be considered on appeal are limited to those which were urged before the trial court. Clark v. State, 249 Ga. 18 (287 SE2d 523). Additionally, both defendant’s objection at trial and this enumeration on appeal lack a factual predicate in that the State’s demonstration addressed only an issue of distance. This enumeration of error is without merit.

2. Defendant contends the trial court erred in allowing another video cassette recorder rather than the one stolen to be introduced in evidence and sent out with the jury. The video cassette recorder introduced into evidence by the State was the same model as the one actually stolen. Over defendant’s objection, the video cassette recorder was admitted “only to show, if it does, the size, shape, weight and quality of the item allegedly taken.” Defendant objected to the introduction into evidence of the video cassette recorder on the sole ground that it was “irrelevant.” Such general objections “are insufficient as they do not direct the attention of the trial court to the specific allegation of error and there is nothing for the appellate court to review. Shouse v. State, 231 Ga. 716 (4) (203 SE2d 537); Vann v. State, 153 Ga. App. 710 (4) (266 SE2d 349); Jones v. State, 154 Ga. App. 806 (2) (270 SE2d 201).” Lightsey v. State, 160 Ga. App. 62, 63 (3) (286 SE2d 41). See Phillips v. State, 172 Ga. App. 864, 865 (3) (324 SE2d 807).

Decided September 30, 1987.

Lee Payne, for appellant.

John M. Ott, District Attorney, J. Ellis Millsap, Assistant District Attorney, for appellee.

3. Defendant contends that he was improperly convicted of a felony due to the State’s failure to prove the value of the stolen item. See in this regard OCGA § 16-8-14 (b) (2) which provides felony punishment for theft by shoplifting where the value of the property stolen exceeds $100. A former employee of Wal-Mart testified that the video cassette recorder, introduced into evidence and identified as the same model and identical to the one that was actually stolen, “sales [sic] for four hundred and twenty-four dollars and eighty-six cents.” Defendant argues that there was no proof that the video cassette recorder actually stolen was of any value at the time and place of the offense, that is, that the only proof of value related to the time of trial. We do not view the former employee’s testimony as compelling the conclusion urged by defendant. Hall v. State, 181 Ga. App. 697, 701 (4) (353 SE2d 614). However, even if defendant’s argument is correct, there is sufficient evidence, which when coupled with the jury’s awareness of the value of such everyday objects as video cassette recorders, to authorize a jury determination that the value of the video cassette recorder stolen was greater than $100. See in this regard Moore v. State, 171 Ga. App. 911, 912 (2) (321 SE2d 413).

4. Defendant enumerates as error a portion of the trial court’s charge. However, defendant neither objected to the charge at trial nor reserved his right to do so on motion for new trial or on appeal. Under these circumstances defendant has waived his right to enumerate error as to the charge. White v. State, 243 Ga. 250 (253 SE2d 694); Cash v. State, 166 Ga. App. 835, 836 (5) (305 SE2d 618); Harper v. State, 180 Ga. App. 20, 21 (2) (348 SE2d 318).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74968.
    LEGGETT v. THE STATE.
    (361 SE2d 546)
    Decided September 30, 1987.

      Robert C. Harper, for appellant.

      Lloyd E. Thompson, Jr., Solicitor, for appellee.
   Pope, Judge.

On October 23, 1986 defendant Leggett was arraigned for the offense of driving under the influence of alcohol. Defendant appeared at the hearing without an attorney, entered a plea of not guilty and waived his right to a jury trial. The trial date was set for March 5, 1987. Two days before trial defendant retained counsel who filed, on behalf of defendant, a written demand for jury trial on March 4, the day before the trial was to commence. When defendant’s case was called for trial his attorney announced defendant was ready for a jury trial but objected to a non-jury trial. The trial judge ruled the demand for jury trial, in revocation of defendant’s earlier waiver of that right, was untimely made. Defendant was convicted after a bench trial.

1. Waiver of trial by jury may be revoked “provided [defendant] acts timely and in such season as not substantially to delay or impede the cause of justice (Cain v. State, 102 Ga. 610, 612 (29 SE 426) [(1897)]), and especially where the State makes no point as to delay or prejudice. The record does not disclose any effort on the part of the accused to delay the trial, nor was it opposed by the State, and there is no indication that it would have substantially delayed the cause of justice.” (Citations, punctuation and indention omitted.) Fleming v. State, 139 Ga. App. 849, 850 (229 SE2d 800) (1976). The fact that the trial calendar had already been published when defendant revoked his waiver of trial by jury does not provide a ground for denying the demand for jury trial. Carleton v. State, 176 Ga. App. 399 (336 SE2d 333) (1985). Therefore, the conviction must be reversed and the case remanded for trial by jury.

2. Because the conviction is overturned and the case remanded, we need not address defendant’s second enumeration of error.

Judgment reversed and case remanded.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74975.
    ROBINSON v. THE STATE.
    (361 SE2d 542)
   Birdsong, Chief Judge.

Freddie B. Robinson was convicted of two counts of forcible rape and one count of kidnapping. He was sentenced to serve concurrent life sentences on the rape charges and 20 years with 10 years to serve consecutive to the life sentences on the kidnapping charge. He brings this appeal enumerating as error the general grounds and the admission of voice identification evidence. Held:

We conclude neither enumeration has substantial merit.

The relevant evidence in this 5-day trial shows that on December 17 a man (subsequently identified as Robinson) went to an apartment complex and requested the manager to show him an apartment. While in the apartment, Robinson grabbed the female manager around the throat and held a paring knife in a threatening manner. He ordered her to disrobe and lie down on the floor for purposes of sex. Fortuitously, the manager dissuaded Robinson from carrying out his intended action, and Robinson fled. Robinson was seen by another person on this occasion and that person also identified Robinson as the probable accoster. Robinson dropped a pamphlet on the floor of the apartment which he was inspecting. That pamphlet was recovered and discovered to have a finger and palm print attributable to Robinson.

Subsequently on December 21 in a different apartment complex, Robinson went to the office and requested to inspect an apartment. He was shown an apartment and left. Approximately eleven hours later, Robinson was again seen in the same apartment complex. He was seen walking toward the laundry room area. The police were called. Meantime, Robinson walked into the laundry room and after a brief and innocent conversation with a female who was using a washing machine, Robinson grabbed the female from behind and placed some object against her body which she believed to be a gun but apparently was a knife. This female was pulled outside the laundry room against her will and forced to disrobe. Robinson then had sex with the victim twice. He then threw her clothes into the bushes and fled.

The police soon apprehended Robinson as a possible suspect. He was placed in a lineup at the police station and was positively identified by the rape victim as the person in the laundry room. While the victim gave several reasons for her identification such as size, clothes, eyes, a razor burn on his neck, the aggregate of the characteristics removed all doubt from her identification. Much of this was corroborated by the witnesses of the morning visit by Robinson on December 21. The apartment manager from the assault of December 17 was also present at this lineup (though not at the same moment) and identified Robinson as an assaulter with the same motives and acting in similar mode. Serological examinations were conducted of semen removed from the body of the rape victim and testimony offered that approximately ten percent of citizens of Georgia would have blood characteristics found in the seminal fluid but that ten percent would not include the victim or her husband but would include Robinson. Lastly a party who participated in the lineup at the same time as Robinson (and in fact stood next to Robinson) by sheer coincidence happened subsequently to be placed in the same detention cell with Robinson. The two men recognized each other and Robinson was asked the reason for the lineup and whether he was involved. Robinson told his cellmate that he did not like white women and that was why he raped the woman near a laundry room of an apartment complex. He denied however using a gun, but contended it was a knife.

Opposed to this inculpatory evidence, Robinson offered evidence that he had been at home with his wife and children and thus it would have been physically impossible to be at the scene of the rape. Robinson at first denied that he had been at the apartment complex on the morning of December 21, but later changed the testimony to admit that he had been there to look at an apartment.

The jury was charged fully upon the issues of alibi and identification. Our responsibility on appeal is not to weigh the evidence and give a de novo opinion as to where the greater weight of the evidence lies but merely to determine if there is sufficient evidence to satisfy a jury beyond reasonable doubt of its verdict of guilty. Proctor v. State, 235 Ga. 720 (221 SE2d 556). In passing on the sufficiency of the evidence to support the verdict, this court will afford the evidence that view which is most favorable to the State, for every inference is in favor of the verdict. Taylor v. State, 138 Ga. App. 95, 96 (225 SE2d 508). We will not speculate as to what evidence the jury chose to believe or to disbelieve. On appeal we are duty bound to construe the evidence and its inferences so as to uphold the jury’s verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Where the testimony of the State and that of the defendant is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468). The jury resolved this conflict in favor of the State and this court will not substitute its judgment for that of the jury. Glover v. State, 237 Ga. 859, 860 (230 SE2d 293). We are satisfied that the evidence was of such character and quantity as to warrant any rational jury of reasonable persons to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

As to the voice identification, the evidence shows that Robinson was required to speak certain words for the hearing of the victims of the December 17 assault and the December 21 rapes. The victim of the December 21 rapes stated the spoken word did not aid her in making her positive identification of Robinson, and she discounted its value. The victim of the December 17 assault did associate Robinson with the voice as her attacker. Pretermitting the fact that this evidence is mostly cumulative (see Glass v. State, 235 Ga. 17 (218 SE2d 776)) and assuming arguendo that voice identification violates the right against compulsory incrimination (but see Wiley v. State, 250 Ga. 343, 349 (296 SE2d 714)), we would still find such assumed error to be harmless. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). The rape victim of the crime charged found no help in her identification by the spoken word and the evidence of the other victim who did obtain some use from the voice related to an uncharged crime. That identification moreover was also supported by Robinson’s physical appearance, his finger and palm prints, serological evidence, and by the additional identification of third parties.

Decided September 30, 1987.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Robert E. Statham III, Susan Brooks, Assistant District Attorneys, for appellee.

However, we will not leave this enumeration as harmless error. Notwithstanding Robinson’s plea that earlier cases permitting the admission of voice identification evidence as consistent with the Fifth Amendment should not be followed because voice identification falls within the stricter application of the Georgia Constitution, we will not disregard those cases, nor do we see any reason so to do. These cases on sound logic conclude it is permissible under both the federal and state constitutions to admit voice identification evidence when such evidence contributes to the search for truth. See OCGA § 24-9-20; Jenkins v. State, 167 Ga. App. 840, 842 (308 SE2d 14); Clark v. State, 166 Ga. App. 366, 369 (304 SE2d 494).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75033.
    RYLEE v. THE STATE.
    (361 SE2d 546)
   Pope, Judge.

Defendant Ralph Leon Rylee was convicted of driving under the influence and was sentenced to serve twelve months. Defendant’s only enumeration concerns the trial court’s refusal to give his request to charge concerning presumptions. Defendant argues that although the requested charge was subsequently found by this court to be impermissibly burden shifting, Peters v. State, 175 Ga. App. 463 (2) (333 SE2d 436) (1985), overruled on other grounds, Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986), at the time of trial the trial court was required to give the requested charge under the mandate of Olsen v. State, 168 Ga. App. 296 (1) (308 SE2d 703) (1983) (see also McCann v. State, 167 Ga. App. 368 (2) (306 SE2d 681) (1983), cert. den., 464 U. S. 1044 (1984), and hence it was error for the court to refuse to do so. “Although [defendant is correct in arguing that] trial in the instant case came before the [Peters] decision, we apply it here in keeping with the principle that an appellate court applies the law as it exists when the case is before it. Harris v. State, 118 Ga. App. 848 (166 SE2d 94) [(1968)]; McGregor v. State, 119 Ga. App. 40 (165 SE2d 915) [(1969)]. We feel this principle to be especially applicable in light of the constitutional ground (due process) of the [Peters] holding.” Aycock v. State, 142 Ga. App. 755, 757 (236 SE2d 863) (1977). Here the trial court’s charge on presumptions contained language similar to that suggested in Peters and contained in the Council of Superior Court Judges Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases. Hence, in the present case the trial court’s refusal to give the requested charge affords no basis for reversal.

Decided September 30, 1987.

Samuel H. Harrison, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Banke, Presiding Judge.

text:
    75117.
    STALEY v. THE STATE.
    (361 SE2d 702)
   Banke, Presiding Judge.

The appellant pled guilty to and was sentenced for the offenses of driving under the influence of alcohol, driving while his license was in suspension, and speeding. Some 13 months later, he filed a “motion to change judgment” with respect to the conviction of driving while his license was in suspension, contending that he had entered his plea of guilty to that offense inadvertently, believing the charge was to be nolle prossed. The trial judge treated this pleading as a motion to withdraw the plea and denied it based on the fact that the term in which the sentence had been entered had already expired. This appeal followed. Held:

OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea as a matter of right before sentence is pronounced. Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered. State v. Kight, 175 Ga. App. 65 (332 SE2d 363) (1985). However, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings. Id. The denial of the motion filed by the appellant in the present case must accordingly be affirmed.

Decided September 30, 1987.

Don Staley, pro se.

James L. Webb, Solicitor, Richard Edwards, Assistant Solicitor, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    75387.
    PULLIAM v. RICHMOND COUNTY BOARD OF COMMISSIONERS et al.
    (361 SE2d 544)
   Deen, Presiding Judge.

On November 19, 1984, at approximately 10:30 a.m., Mitchell Pulliam was on routine patrol as an officer of the Richmond County Police Department. Immediately upon negotiating a curve in the road, he had to brake and swerve to avoid a motorgrader that was pulling out onto the road. Pulliam lost control of his patrol car and turned into and struck a power company utility pole. The motor-grader, which was driven by an unsupervised inmate of the Richmond County Correctional Institute, continued down the road.

Pulliam got out of his patrol car and made the inmate driver come back. Another Richmond County police officer investigated the incident and administered an alcosensor test on the inmate driver which was positive for alcohol. Officers from the Richmond County Correctional Institute eventually arrived and initially resisted the police officers’ notion to take the inmate down to the station, on the basis that the police officers lacked authority to take custody of the inmate, who was already a prisoner. Nevertheless, the officers ultimately transported the inmate to the police station, where, after two and a half hours, an intoximeter test indicated a blood alcohol level of .09 percent. The inmate claimed that he had drunk one can of beer that he had found on the side of the road.

Subsequently, Pulliam commenced this action against the Richmond County Board of Commissioners and the State of Georgia, seeking to recover for injuries he sustained in this collision. The trial court granted summary judgment for Richmond County on February 10, 1987, and for the State of Georgia on February 26, 1987. Pulliam filed a notice of appeal only from the order granting summary judgment for Richmond County. Held:

The trial court granted summary judgment for Richmond County on the basis that Pulliam’s sole remedy against Richmond County

Decided September 30, 1987.

Richard L. Powell, for appellant.

James W. Ellison, Robert C. Daniel, Jr., for appellees.

was workers’ compensation benefits. OCGA § 34-9-11, generally; Knight-Ridder Newspaper Sales v. Desselle, 176 Ga. App. 174 (335 SE2d 458) (1985). Pulliam contends that the exclusive rights rule is inapplicable here because Richmond County was acting in a dual capacity, with duties arising out of its supervision of inmates that were separate and distinct from those arising out of the employer/employee relationship; the breach of the former created a hazard common to the general public and not unique to his employment. There is allure to that logic, but the fact remains that Pulliam was injured as a result of a traffic incident, a risk that he was exposed to because of his employment. National Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (263 SE2d 455) (1979). Consequently, we agree that the exclusive rights provision of OCGA § 34-9-11 barred this action.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    73116, 73117.
    POSEY et al. v. MEDICAL CENTER-WEST, INC.; and vice versa.
    (361 SE2d 505)
   Sognier, Judge.

In Posey v. Medical Center-West, Inc., 257 Ga. 55 (354 SE2d 417) (1987), the Supreme Court reversed the judgment of this court affirming the trial court’s grant of summary judgment in favor of Medical Center-West, Inc., d/b/a Parkway Regional Hospital, Parkway Surgery Associates, P. C. and two physicians in Case No. 73116. Posey v. Medical Center-West, Inc., 180 Ga. App. 674 (350 SE2d 259) (1986). Accordingly, our judgment in that case is vacated, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s order in Case No. 73116 as to the issue addressed in 257 Ga. 55 is reversed. However, there remains for resolution in this court the second enumeration of error made by the Poseys in Case No. 73116, as well as the cross-appeal by Medical Center-West in Case No. 73117.

In the remaining enumeration of error in Case No. 73116, the Poseys contend the trial court erred by dismissing Count V of their complaint. In Count V the Poseys sought recovery in damages for the mental distress they suffered and the emotional and physical injury incurred thereby as a result of the negligent treatment and diagnosis of their daughter. In Georgia it is well established that “[a]s a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. [Cit.]” Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818) (1984). The Poseys do not allege that the physical injury they suffered was the result of any direct physical contact; rather, the physical injury stems from the mental distress they suffered. In the absence of any allegation of gross negligence or wilful and wanton conduct, however, such damages are not recoverable. See Clack v. Thomason, 57 Ga. App. 253, 254 (2) (195 SE 218) (1938); see also Strickland v. Hodges, 134 Ga. App. 909, 912 (216 SE2d 706) (1975). Further, in Strickland, supra, this court held that there is no independent right of action available to parents who are not present at an incident in which serious injuries are inflicted upon their child, thereby disallowing recovery by the parents for emotional distress and mental suffering which results from the parents learning of such injuries and seeing the injured child following the incident. Although the Poseys were present at the medical facilities where their daughter was being treated in an alleged negligent manner, as noted in Posey, 180 Ga. App. at 675 (1), the Poseys “do not contend appellees inflicted injuries separate and independent of the accident injuries but instead assert appellees’ negligence consisted of the omission of actions which allegedly would have prevented the automobile-inflicted injuries from resulting in death.” (Emphasis supplied.) It being impossible for the Poseys here to have been present at the omission of an act, under Strickland, supra, the Poseys cannot recover the damages sought in Count V of their complaint. We note that the California cases cited by the Poseys as the sole support for their argument were discussed by Judge Clark in Strickland, along with numerous other foreign authorities and learned treatises, in arriving at the decision not to impose liability in absentee parent situations such as we have here. Accordingly, we hold that the trial court did not err by dismissing Count V of the Poseys’ complaint in Case No. 73116.

In Case No. 73117, Medical Center-West cross-appeals from the trial court’s denial of its motion for summary judgment made on the ground that any alleged negligence on the part of the physicians who treated the Poseys’ child in Medical Center-West’s emergency room could not be imputed to it on the basis of respondeat superior. In Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (354 SE2d 632) (1987), this court held that where, as here, an emergency room was being operated under the hospital’s own name, as an integral part of its services, “[a] member of the general public might reasonably have assumed under such circumstances that the physicians on duty there were acting under the hospital’s aegis and on its behalf, i.e., that they were ‘hospital doctors.’ Such appearances speak much louder than the words of whatever private contractual arrangements the physicians and the hospital may have entered into, unbeknownst to the public, in an attempt to insulate the hospital from liability for the negligence, if any, of the physicians. [Cits.]” Id. at 898 (3).

Decided September 9, 1987

Rehearing denied October 1, 1987

W. Pitts Carr, J. Renee Kastanakis, for appellants.

Judson Graves, Benny C. Priest, Robert G. Tanner, Samuel P. Pierce, for appellee.

Applying the doctrine of apparent agency in Brown to the facts in the case sub judice, we find the trial court did not err by denying the motion for summary judgment made by Medical Center-West. Accordingly, the trial court’s order in Case No. 73117 is affirmed.

Judgment affirmed in Case No. 73117. Judgment affirmed in part and reversed in part in Case No. 73116.

Birdsong, C. J., and Banke, P. J., concur.


text:
    74358.
    74359.
    74360.
    OSTUNI BROTHERS, INC. et al. v. FULTON COUNTY DEPARTMENT OF PUBLIC WORKS et al. STYNCHCOMBE et al. v. OSTUNI BROTHERS, INC. DUBAC v. OSTUNI BROTHERS, INC. et al.
    (361 SE2d 668)
   Benham, Judge.

Appellant Ostuni Brothers, Inc. (“Ostuni Bros.”) owned property in Fulton County against which water line and tapping permit fees had been assessed by appellee Fulton County Department of Public Works (“DPW”). Ostuni Bros, failed to pay the assessment, and in late December 1983, Roslyn Baron of the Fulton County Department of Planning & Community Development issued a fi. fa. against the property. In February 1984, a letter was sent to Robert Ostuni, President of Ostuni Bros., notifying him that the fi. fa. would be sent to the Fulton County Sheriff’s Department for sale if the assessment was not paid. In late March 1984, Mr. Ostuni met with Mrs. Baron about the matter and gave her a check in payment for the fees. Ostuni’s account did not contain sufficient funds to cover the check, but at Mr. Ostuni’s request, Mrs. Baron agreed to hold it for approximately one week, during which time a property closing was to take place and the funds were to be made available to cover the check. Mrs. Baron held the check for almost two months, and when she finally deposited it for collection in May 1984, it was returned for insufficient funds. In mid-June, Mrs. Baron turned the fi. fa. over to the sheriff’s department for collection, and in August 1984, the sheriff sold the property to John Dubac.

Ostuni Bros, filed suit after the sale to have it set aside, alleging that insufficient notice was given to Bank South, a lienholder on the property. The trial court set the sale aside and cancelled Dubac’s deed on April 22, 1985, and Ostuni Bros, then sought damages against the DPW, Sheriff Stynchcombe, Baron, and Dubac for the alleged wrongful sale of the property. The defendants filed motions for summary judgment, and on June 23, 1986, the trial court granted the DPW’s motion, denied Stynchcombe’s and Baron’s motions, and granted Dubac’s motion. Ostuni Bros, appeals from the grant of summary judgment to the DPW and Dubac (Case No. 74358); Stynchcombe and Baron cross-appeal from the denial of their motions (Case No. 74359); and Dubac cross-appeals from the denial of his earlier motion to dismiss (Case No. 74360).

1. In Case No. 74358, appellant Ostuni Bros, first enumerates as error the trial court’s grant of summary judgment to appellee DPW, arguing that the doctrine of sovereign immunity does not apply. We disagree. Sovereign immunity extends to the State and all of its political subdivisions, including its counties, departments, and agencies, unless such immunity is expressly waived by constitutional provision or legislative enactment. 1983 Ga. Const., Art. I, Sec. II, Par. IX; Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985). “A county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. Appellant having made no showing of a waiver of immunity, the trial court did not err in dismissing the DPW as a party to Ostuni Bros.’ suit.

Appellant also argues that the DPW was liable for Ostuni Bros.’ alleged loss because the county’s attempt to sell the property for the unpaid fees constituted a taking of private property for public use without just compensation. This contention has no merit, as no such taking of Ostuni Bros.’ property for “public use” occurred. Public use is defined as the right of the public to use the property in question (Dept. of Transp. v. Livaditis, 129 Ga. App. 358, 362 (199 SE2d 573) (1973)), and the only person who would have a right to use the property was Dubac.

2. Ostuni Bros, also takes issue with the trial court’s grant of summary judgment to Dubac, the purchaser of the property. Ostuni Bros, sought actual and punitive damages against Dubac for conversion, trespass of title, slander of title, and abusive litigation. In support of his motion for summary judgment, Dubac submitted affidavits to the effect that he had acted in good faith in purchasing the property; that he had relied on the presumption that the sheriff was properly performing his duties concerning the sale; that he had decided to defend against the lawsuit on the advice of his attorney; and that there had appeared to be a possibility that the underlying deed to secure debt may have been paid off before the sale. On appeal, Ostuni Bros, attempts to refute Dubac’s affidavits by relying on a deposition that was neither filed with the trial court nor included in the record on appeal. In reviewing the trial court’s decision, we cannot consider the deposition, attached to Ostuni Bros.’ brief as Exhibit “A,” for we must take our evidence from the record. Dennis v. Nat. Bank of Ga., 182 Ga. App. 634 (2) (356 SE2d 563) (1987); Leathers v. Timex Corp., 174 Ga. App. 430 (1) (330 SE2d 102) (1985). Since the record indicates that Dubac met his burden of proof and Ostuni Bros, did not carry the burden when it shifted from Dubac, the trial court’s grant of summary judgment to Dubac was proper.

3. In Case No. 74359, cross-appellants Stynchcombe and Baron contend that they were entitled to a grant of summary judgment against Ostuni Bros., based on Fulton County’s sovereign immunity. Ostuni Bros, takes the opposite stance. Since the DPW is immune from suit, as affirmed in Division 1 of this opinion, former Sheriff Stynchcombe is likewise immune. “ ‘Any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State . . .’ and cannot be maintained without its consent. [Cit.]” Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980). There being no such consent, there is no basis for the suit against Stynchcombe, as all of the actions about which Ostuni Bros, complains were performed in his official capacity as Sheriff of Fulton County, and he was sued in that capacity alone. As for Mrs. Baron, we agree that she is entitled to qualified immunity. The record reflects that her actions in issuing the fi. fa., agreeing to hold Robert Ostuni’s check for a short period of time at his request to allow him to deposit sufficient funds to cover it, depositing the check over a month later, and submitting the fi. fa. to the Fulton County Sheriff’s office for levy were all discretionary acts within the scope of her duties as an accountant in charge of the water and sewer assessments for the Fulton County Department of Planning & Community Development. “ ‘[W]here an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.’ ” Hennessy v. Webb, supra at 330-331. No showing was made of wilfulness, malice, or corruption on Mrs. Baron’s part, and so she is entitled to a grant of summary judgment by dint of her immunity. See Vickers v. Motte, 109 Ga. App. 615, 617 (137 SE2d 77) (1964).

Decided September 9, 1987

Rehearing denied October 1, 1987

Michael Weinstock, J. Patrick McCrary, for Ostuni Bros.

Richard H. Sinkfield, Franklin N. Biggins, Catherine M. Bennett, for Stynchcombe et al.

Roy J. Leite, Jr., for Dubac.

4. The cross-appeal filed by Dubac (Case No. 74360) enumerates as error one of the trial court’s previous orders in which it denied Dubac’s motion to dismiss Ostuni Bros.’ complaint for failure to do equity. This enumerated error is moot, since the trial court granted Dubac’s motion for summary judgment against Ostuni Bros, and made it a final judgment as to those parties. The cross-appeal is, therefore, dismissed. OCGA § 5-6-48 (b).

5. All motions for the imposition of frivolous appeal sanctions are denied.

Judgment affirmed in Case No. 74358. Judgment reversed in Case No. 74359. Appeal dismissed in Case No. 74360.

Banke, P. J., and Carley, J., concur.


text:
    74394.
    BROWN v. DIAZ et al.
    (361 SE2d 490)
   Benham, Judge.

Appellant, an inmate incarcerated at the Georgia State Prison at Reidsville, filed this suit for damages against two correctional officers employed at the prison, claiming they had subjected him to cruel and unusual punishment in violation of the Eighth Amendment while transporting him from the prison to a court appearance in Savannah. After conducting a hearing, the trial court sua sponte dismissed appellant’s lawsuit as frivolous, from which action appellant now brings this appeal.

1. Appellant initially contends the dismissal of his action was the result of the trial court’s alleged bias against appellant due to appellant’s race and indigency. Appellant’s failure to present either argument or citation of authority on this issue compels us to treat the enumerated error as abandoned. Court of Appeals Rule 15 (c) (2); Field Developers v. Johnson, 160 Ga. App. 180 (1) (289 SE2d 321) (1981).

2. Appellant next claims error because the trial court allegedly denied appellant leave to conduct discovery. The transcript of the hearing contains prison records obtained by appellant through means of discovery as well as references to the interrogatories and requests for admissions propounded on appellees by appellant. There is no evidence that appellant was prevented by the trial court from conducting discovery.

3. Appellant next contends the trial court erred in dismissing his lawsuit as frivolous. Appellant’s suit, a federal cause of action brought in forma pauperis under the auspices of 42 USCA § 1983, is controlled by federal law. Davis v. City of Roswell, 250 Ga. 8 (1) (295 SE2d 317) (1982). Under 28 USCA § 1915 (d), a trial court may dismiss a case if it is “satisfied that the action is frivolous or malicious.” The dismissal of a frivolous action is appropriate to prevent an abuse of process. Brown v. Pena, 441 FSupp. 1382 (S. D. Fla. 1977), aff’d without opinion, 589 F2d 1113 (5th Cir. 1979). “[T]he standard for determining the legal sufficiency of a complaint is the same under either Fed. R. Civ. P. 12 or 28 USC § 1915 (d). [Cits.]” Spears v. McCotter, 766 F2d 179, 182 (5th Cir. 1985). Therefore, the dismissal of a lawsuit as frivolous is appropriate where the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Fed. R. Civ. P. 12. Cf. Estelle v. Gamble, 429 U. S. 97, 106 (97 SC 285, 50 LE2d 251) (1976).

“Because 42 USC § 1983 is not a general tort statute but imposes liability only for [the violation] of rights secured by the Constitution and laws of the United States, it does not grant a cause of action for every injury . . . inflicted by a state officer.” Shillingford v. Holmes, 634 F2d 263, 264 (5th Cir. 1981). “In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, we must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer’s action caused severe injuries, was grossly disproportionate to the need for action under the circumstances and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983. [Cits.] The degree of force exerted and the extent of physical injury inflicted that together amount to a constitutional deprivation must, of course, be determined by the facts of a given case.” Id. at 265.

In the case at bar, appellant contended he was subjected to cruel and unusual punishment, incurring permanent physical injuries, because appellees improperly chained and cuffed him while transporting him to a court appearance. The prison medical records reflected that appellant had been treated for a “superficial abrasion on his right ankle” upon his return to the prison. The trial court examined appellant’s right ankle and noted it “appeared to have a slight scar or discoloration less than one-quarter of an inch in length.” Appellees testified that appellant was cuffed and chained as mandated by prison policy and procedure and that appellant gave no indication of discomfort. The trial court dismissed appellant’s suit as frivolous because appellant had failed “to state a claim of sufficient magnitude to state a violation of his Eighth Amendment to be free from cruel and unusual punishment.” Upon review of appellant’s claim and the evidence presented at the hearing, we are in agreement with the trial court thát appellant’s claim of injury was insufficient to amount to a constitutional deprivation and was properly dismissed as frivolous.

Decided September 8, 1987

Rehearing denied October 1, 1987

Phillip Brown, pro se.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Jennifer Hackemeyer, Assistant Attorney General, for appellees.

4. Appellant assigns error to the trial court’s denial of his motion seeking appointed counsel. Motions for appointment of counsel under 28 USCA § 1915 (d) are addressed to the sound discretion of the trial court and are granted only in exceptional circumstance. United States v. McQuade, 579 F2d 1180 (9th Cir. 1978). The appointment of counsel to represent an indigent prisoner in a civil rights case is not necessary unless it is shown that the denial of proper representation will result in fundamental unfairness impinging upon the inmate’s due process rights, or that circumstances of the case may make the presence of counsel necessary. Childs v. Duckworth, 705 F2d 915 (7th Cir. 1983). No such showing was made herein; therefore, we cannot say the trial court abused its discretion in denying appellant’s motion.

5. Appellant takes issue with the dismissal of his action after an evidentiary hearing in contravention of his demand for a jury trial. It is appropriate to conduct a non-jury “hearing which may result in the dismissal of the lawsuit “to dig beneath the conclusional allegations; to reduce the level of abstraction upon which the claims rest; to ascertain exactly what scenario the prisoner claims occurred, as well as the legal basis for the claim.” Spears v. McCotter, supra at 180.

6. In light of our disposition of appellant’s appeal in Division 3 of this opinion, we need not address appellant’s enumeration concerning the denial of his motion to set aside.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Beasley, Judge.

text:
    74853.
    In the Interest of C. D. L.
    (361 SE2d 527)
    Decided September 18, 1987
    Rehearing denied October 1, 1987

      Jonathan W. Hibbert, for appellant.

      Lewis R. Slaton, District Attorney, George J. Robinson, Jr., Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attor

      neys, for appellee.
   Beasley, Judge.

Having been found to have committed a designated felony, aggravated assault, in a prior adjudicatory hearing, juvenile C. D. L. appeals from the disposition order placing him in the custody of the Division of Youth Services, Department of Human Resources. See OCGA § 15-11-37.

The sole enumeration of error contests the sufficiency of the evidence to sustain a finding that C. D. L. committed an aggravated assault. Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is “beyond a reasonable doubt.” OCGA § 15-11-33 (c); T. K. v. State, 126 Ga. App. 269, 276 (3) (190 SE2d 588) (1972). On appeal we thus apply the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), which is whether a rational trier of fact could reasonably have found from the evidence presented proof that the juvenile committed the offense beyond a reasonable doubt. In the Interest of J. P., 160 Ga. App. 896, 897 (288 SE2d 607) (1982).

The evidence was conflicting. The victim could not identify C. D. L. as one of his assailants and neither could two other eyewitnesses. Another witness stated C. D. L. was not at the scene. However, one eyewitness positively identified C. D. L. as a member of the gang which assaulted the victim. In fact, she identified him as the leader and stated she saw him strike the victim and tell another boy “go get him,” after which the boy kicked the victim. Thus, there was evidence that C. D. L. was a party to the crime as defined in OCGA § 16-2-20.

On appeal the Court is bound to construe the evidence with every inference and presumption in favor of upholding the findings of the trier of fact, here the trial court. In re J. P., 169 Ga. App. 744, 745 (315 SE2d 259) (1984). The issues of the credibility of the witnesses and the resolution of conflicts in the evidence fall within the province of the trial court. In the Interest of F. T., 165 Ga. App. 4 (299 SE2d 112) (1983). Application of these principles leads to the conclusion that the evidence was sufficient. See In re V. T., 168 Ga. App. 472, 473 (309 SE2d 629) (1983).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.