text:
    A92A1633.
    MOSS v. THE STATE.
    (425 SE2d 386)
   Cooper, Judge.

Appellant was convicted by a jury of selling cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30 (b)). He appeals his conviction and sentence and the trial court’s denial of his motion for a new trial.

Two undercover agents with the Georgia Bureau of Investigation testified that on January 18, 1991, they were driving around in a van equipped with a hidden video camera, attempting to purchase drugs from street-level dealers. Appellant walked up to the van and stuck his hand in the window, opening it to show one piece of an off-white compressed substance suspected to be cocaine. The agents said they were looking for more than one piece. Appellant’s co-defendant then came up to the vehicle and asked how much they wanted. When the agents responded that they wanted to spend about $130, appellant gave his one piece to co-defendant, who then went into a nearby trailer and returned with five pieces of cocaine. After negotiating the price, the agents purchased those five pieces for $100 and left. Appellant and co-defendant were arrested later, when the undercover operation was complete. Appellant testified that the substance in his hand was not cocaine and that he was not involved in the sale.

1. Appellant first argues that, because the agents could not testify that they were certain that the piece of suspected cocaine given by appellant to co-defendant was one of the five pieces of cocaine sold by co-defendant to the agents, the five pieces of cocaine were irrelevant to the question of appellant’s guilt and should not have been admitted into evidence at his trial. “ ‘Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.’ [Cits.]” Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). Furthermore, “the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). If nothing else, the five pieces of cocaine in this case were highly probative of the fact that the sale in which appellant was allegedly involved occurred. Accordingly, the trial court did not abuse its discretion in admitting into evidence the five pieces of crack cocaine sold by co-defendant to the agents.

2. In his second enumeration of error, appellant contends the trial court erred in admitting a videotape of the agents’ encounter with appellant and co-defendant and the ensuing cocaine sale over appellant’s objection that the videotape had not been produced in response to appellant’s pre-trial Brady motion. See Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Appellant asserts that the videotape was exculpatory because it contradicted the agents’ testimony that appellant sold them cocaine by demonstrating that the actual sale transaction was between the agents and co-defendant. Even if we accept appellant’s assertion that the videotape is exculpatory Brady material, Brady “does not require pre-trial disclosure of materials sought under a Brady motion, nor is there a Brady violation where information sought becomes available to the accused at trial. [Cit.] . . . ‘There is no general constitutional right to discovery in a criminal case, and Brady did not create one. . . .’” (Indentation omitted.) Shearer v. State, 259 Ga. 51 (1) (376 SE2d 194) (1989). In this case, the videotape was made available at trial and appellant was able to cross-examine the agents thoroughly regarding purported contradictions between their testimony and the videotape. Thus, there was no Brady violation and the trial court did not err in admitting the videotape.

3. Appellant argues that the trial court erred in instructing the jury on “parties to a crime” because there was no evidence of any connection between appellant and the crime. There was testimony that appellant was the first person to approach the van and that he stuck his hand in the window and opened it to reveal a substance that looked like crack cocaine. When the agents wanted a larger quantity, appellant handed the substance in his hand to co-defendant, who left and returned with five pieces of cocaine. There was also testimony that after his arrest appellant voluntarily gave an oral statement in which he said co-defendant “really sold the drugs to the guys in the van,” but admitted that he “started running cars somewhere around the middle of January, 1991. For every hundred dollars worth of crack I sold, I would get $20 in cash or either $20 worth of crack.” Although there is no direct evidence that any of the pieces of cocaine sold to the agents came from appellant, there is certainly evidence from which reasonable jurors could logically infer that one of those pieces came from appellant or that appellant intentionally aided and abetted in the sale by first approaching the van and talking with the agents and then staying outside with the van until co-defendant returned to make the sale or both. “ ‘ “Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. (Cit.). . . .” [Cit.]’ [Cit.]” Adams v. State, 193 Ga. App. 628 (388 SE2d 747) (1989). We conclude that the trial court did not err in charging the jury on the parties to a crime.

4. Appellant also contends that the evidence at trial was insufficient to support the verdict against him. As described above in Division 3, however, the evidence against appellant, viewed in a light favorable to the verdict, was sufficient to enable the jury to find appellant guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 17, 1992.

Dunaway & Wallace, Harold W. Wallace III, Jimmy D. Plunkett, for appellant.

Dennis C. Sanders, District Attorney, Robert G. Dunn III, Assis tant District Attorney, for appellee.

5. Lastly, appellant argues that the trial court should not have considered appellant’s prior convictions and sentenced him to life as a recidivist under OCGA § 16-13-30 (d) because the State did not notify appellant of its intention to submit those prior convictions to the court for consideration in sentencing. OCGA § 17-10-2 (a) provides that before sentencing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions . . . , provided that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.” The notice requirement of OCGA § 17-10-2 (a) applies to mandatory life sentences imposed under OCGA § 16-13-30 (d). See State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984). The State’s assertion that it orally notified appellant that it intended to seek a life sentence under the recidivist statute is confirmed by a colloquy between the court and appellant’s counsel in the record. After co-defendant changed his plea to guilty, the court was discussing with appellant’s counsel the possibility that his client might do the same. The court asked appellant’s counsel if appellant had been convicted before, eliciting the response “Yeah, he’s facing life. That’s why he won’t plead.” Moreover, the State also provided written notice to appellant that it intended to present evidence of his prior convictions as similar transactions at trial. While that written notice did not mention sentencing, it did provide appellant with necessary details regarding the prior convictions which, in combination with oral notification that the State intended to seek a life sentence under the recidivist statute, would fulfill the purpose of the notification requirement by enabling appellant “ ‘to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.’ [Cit.]” Roberts v. State, 252 Ga. 227, 240 (11) (314 SE2d 83) (1984). Although a written notification of the State’s intent to prosecute as a recidivist is preferable, it is not required as long as the notification is clear. See Fox v. State, 163 Ga. App. 601 (2) (295 SE2d 563) (1982). We conclude that, under the circumstances of this case, appellant had adequate notice that he faced treatment as a recidivist.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A0844.
    BARLOW et al. v. BRANT et al.
    (425 SE2d 309)
   Pope, Judge.

Plaintiffs Patricia L. and Billy D. Brant filed a complaint in negligence against defendants James E. Barlow, Sr. and Thomas J. Sanders, Sr. for injuries allegedly sustained when Mrs. Brant slipped and fell on the premises of a shopping center owned by defendants. Mrs. Brant fell near the entrance to a grocery store on a sidewalk which runs in front of the various businesses in the shopping center. Plaintiffs allege the concrete which forms the sidewalk was finished improperly for use by pedestrians in that it was given a smooth finish which becomes slippery when wet instead of a brush finish which would have provided traction for pedestrian use. According to plaintiffs, the sidewalk was wet from rain at the time she fell,- creating a dangerous condition. Plaintiffs allege their injuries were proximately caused by the defendants’ defective construction of the sidewalk, their negligent failure to warn of the dangerous condition of the sidewalk and failure to exercise ordinary care in keeping the premises and approaches safe. Defendants’ motion for summary judgment was denied and they appeal.

1. Defendants argue that because they lease the premises to the corporation which operates the grocery store, their liability to plaintiffs, if any, is limited to that imposed upon landlords pursuant to OCGA § 44-7-14. Said statute provides that a landlord is not liable to third parties for negligent use of the premises by the tenant if the landlord has “fully parted with possession and the right of possession [of the premises]. . . .” In that event, the landlord remains “responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” Defendants assume the facts show the threshold requirement that they fully parted with possession of the premises. They focus their argument on the fact that they did not actually construct the sidewalk or direct its construction and did not have actual or constructive knowledge of the alleged defect and thus cannot be held liable. See Ross v. Jackson, 123 Ga. 657 (51 SE 578) (1905); National Distrib. Co. v. Ga. Industrial Realty Co., 106 Ga. App. 475 (127 SE2d 303) (1962); Dobbs v. Noble, 55 Ga. App. 201, 203 (3) (189 SE 694) (1937).

The evidence, however, does not establish as a matter of law that defendants “fully parted with possession and the right of possession” of the sidewalk in front of the leased grocery store. The written lease grants the corporation which operates the grocery store the right of possession to a certain number of square feet in. the shopping center for operating a store. The lease expressly stipulates that defendants, the lessors, are responsible for “maintaining, cleaning, repairing and replacing the . . . sidewalks, and other common areas” and for providing liability insurance coverage for the common areas. The undisputed facts show the location at which Mrs. Brant was allegedly injured was on the common sidewalk which spanned the length of the shopping center. Thus, the facts do not establish as a matter of law that defendants are landlords who are entitled to summary judgment pursuant to OCGA § 44-7-14.

2. Defendants argue that even if the facts show them to be not merely landlords who have relinquished their right of possession of the premises but, instead, owners and occupiers of the premises whose liability to plaintiffs is governed by OCGA § 51-3-1, they are entitled to summary judgment because the undisputed facts show they lacked actual or constructive knowledge of the allegedly defective condition of the sidewalk. Defendants rely upon this court’s recent opinion in Barksdale v. Nuwar, 203 Ga. App. 184 (416 SE2d 546) (1992), in which we affirmed the grant of summary judgment to a homeowner sued by an invitee who was injured when the patio deck at the rear of the house which had been built for the owner fell off the side of the house. In Barksdale, the owner testified he inspected the deck before accepting the house and noticed nothing wrong with it. The building inspector who testified that the deck was defectively constructed nevertheless “conceded that ‘it would appear to the average untrained eye to be an acceptable deck.’ ” Id. at 184-185. Because the owner thus showed that he had no actual or constructive knowledge of the defect by demonstrating he was incapable of discovering it by means of reasonable inspection, we concluded the owner had “established as a matter of law that he discharged the duty of ordinary care owed to the invitee.” Id. at 186.

In the case at hand, however, it is apparent from the testimony of record that reasonable minds could differ concerning whether it was apparent from looking at the sidewalk that it was given a finish that was too slick for pedestrian use. Unlike the facts in Barksdale, the record contains no evidence to establish as a matter of law that defendants could not by reasonable inspection have discovered the alleged defect in the condition of the sidewalk.

Defendants argue that even if the alleged defective condition of the sidewalk was discoverable by them, it was also discoverable by Mrs. Brant, who testified she had shopped at the grocery store as many as ten times prior to the date of her fall. Thus, relying upon Chisholm v. Fulton Supply Co., 184 Ga. App. 378 (361 SE2d 540) (1987), defendants argue they are relieved of liability to plaintiffs because Mrs. Brant had equal knowledge of the condition of the sidewalk. In Chisholm, the plaintiff alleged his injuries were caused by a defect in the height of the risers of the steps to the defendant’s store. Because the evidence showed the plaintiff had been a customer of the store prior to the date of his injuries, we ruled the defendant was not “liable for injuries resulting from a condition which is readily observable and which should have been seen and appreciated by the [plaintiff] 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.” Id. at 380. The plaintiff in this case, however, testified she did not recall shopping at the grocery store at a time when it was raining. “An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. Prosser, Law of Torts (4th ed.) 393, § 61. An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. 2 Restatement of Torts 216, § 343. It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor’s liability. Prosser, Law of Torts (4th ed.) 389, § 61.” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984). The facts of the case at hand do not establish as a matter of law that Mrs. Brant had knowledge equal to that which the defendants had or should have had concerning the condition of the sidewalk when wet. Thus, the trial court did not err in denying defendants’ motion for summary judgment.

Decided October 28, 1992 —

Reconsideration denied November 18, 1992.

Long, Weinberg, Ansley & Wheeler, Alan L. Newman, John K. Train IV, for appellants.

Michael B. Perry, Morgan M. Robertson, for appellees.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0870.
    ATLANTA GAS LIGHT COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION.
    (425 SE2d 340)
   McMurray, Presiding Judge.

Atlanta Gas Light Company (“AGL”) appeals from a decision of the Public Service Commission (“PSC”) reducing the annual capacity charge. We find the appeal to be moot, in view of a subsequent decision of the PSC eliminating the annual capacity charge. Accordingly, we dismiss.

For many years, the PSC permitted AGL to apply an annual capacity charge to low load factor customers who used gas furnaces to “back-up” electric heat pumps. In a 1990 proceeding to consider new rate schedules proposed by AGL, two intervenors, Georgia Power Company and Herbert G. Burris, sought a reduction of the annual capacity charge.

The PSC issued a Short order temporarily reducing the annual capacity charge from $8.00 per therm to $6.50 per therm. Thereafter, via Final Order, the PSC reduced the annual capacity charge to $4.29 per therm.

AGL filed a petition for rehearing, reconsideration and oral argument. The petition was denied and AGL sought review in the Superior Court of Fulton County. The Superior Court affirmed and this appeal followed. Held:

The PSC and Georgia Power Company have urged us to dismiss the appeal on mootness grounds and the parties stipulated the following facts to enable us to consider whether the issues raised in this appeal are moot: On May 31, 1991, AGL filed new schedules with the PSC proposing increases, effective July 1, 1991, in AGL’s rates and charges, including the annual capacity charge. The PSC suspended the operation of the proposed schedules of rates and charges for a five-month period pursuant to OCGA § 46-2-25 and scheduled hearings on AGL’s proposed schedules. Following the conclusion of the hearings, the PSC entered an initial order which, inter alia, suspended the annual capacity charge. Thereafter, the PSC entered a detailed order confirming the suspension of the annual capacity charge. AGL filed a petition for rehearing, reconsideration and oral argument, arguing that the suspension of the annual capacity charge was erroneous. The petition was denied and AGL filed a petition for review in the Superior Court of Fulton County. The petition for review is still pending.

“Under the Appellate Practice Act, the dismissal of an appeal is mandatory for the three specific instances contained in subsection (b) of OCGA § 5-6-48, Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976), one of which is ‘(3) Where the questions presented have become moot.’ ‘A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.’ ” Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241).

We have no hesitation in concluding that the question presented in this case — the amount of the annual capacity charge — is moot. After all, any decision pertaining to the amount of the annual capacity charge runs smack into the PSC’s subsequent order suspending the charge altogether. See Douglas County v. Hasty, 237 Ga. 646 (229 SE2d 435). See generally State v. Pub. Svc. Comm. of Missouri, 645 SW2d 44, 51 (Mo. App. 1982) (new tariff renders most questions concerning former tariff moot). Thus, even if we reversed this case, AGL would be unable to enforce the rights that it insists upon here. See generally Seaton v. Aetna Cas. &c. Co., 189 Ga. App. 546, 547-548 (376 SE2d 712) (test of mootness is whether appellant, in case of reversal, could enforce the rights insisted upon).

AGL argues that the appeal cannot be deemed moot because the 1991 order of the PSC (eliminating the annual capacity charge) remains on appeal. Continuing the argument, AGL posits that if the 1991 order is reversed, it will be necessary for the PSC to re-examine the 1990 order (reducing the amount of the annual capacity charge). We cannot accept this argument. If the 1991 order is reversed, the PSC can simply re-examine the amount of the annual capacity charge following the remand of that order.

“Of course, a case may be moot, but, because the error is capable of repetition and yet evades review, the appeal will be considered. [Cits.]” Chastain v. Baker, 255 Ga. 432, 433, supra. In the context of a rate case, this principle has been expressed thusly: “There is ... an exception to the mootness doctrine with respect to an issue of a recurring nature, of general public interest and importance, and which will evade appellate review unless the court exercises its discretionary jurisdiction. As stated in State ex rel. Missouri Pub. Serv. Co. v. Fraas, [627 SW2d 882 (Mo. App. 1981)]: ‘The question of whether to exercise this discretionary jurisdiction comes down to whether there is some legal principle at stake not previously ruled as to which a judicial declaration can and should be made for future guidance. If the matter in dispute is simply a question of fact dependent upon the evidence in the particular case, there is no necessity for a declaration of legal principle such as to call the exception into play.’ ” State v. Pub. Svc. Comm. of Missouri, 645 SW2d 44, 51, supra.

AGL asserts that “this case falls within the limited class of cases that we may review even though they are moot.” Citizens for Ethical Government v. Gwinnett Place Assoc., L. P., 260 Ga. 245 (1) (392 SE2d 8). We disagree. By and large, the issues raised by AGL are of a factual nature and depend on the evidence in this case. To the extent that it can be said that the issues raised by AGL present questions of law, the questions are not so important as to require future guidance and there is no necessity to review them. We will not retain jurisdiction of a moot case to consider basic legal questions even though the appellant “might derive some benefit in future litigation from a favorable adjudication of the question. [Cits.]” Berrie v. Baucknecht, 224 Ga. 432, 433 (162 SE2d 317). See also Beatty v. Myrick, 218 Ga. 752, 753 (130 SE2d 716).

Decided November 5, 1992 —

Reconsideration denied November 18, 1992

Long, Aldridge & Norman, Albert G. Norman, Jr., Gordon D. Giffin, L. Craig Dowdy, for appellant.

Michael J. Bowers, Attorney General, Beverly B. Martin, Senior Assistant Attorney General, Roger M. Siegel, David I. Adelman, Assistant Attorneys General, for appellee.

Appeal dismissed.

Sognier, C. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1030.
    THE STATE v. KLINAKIS.
    (425 SE2d 665)
   Birdsong, Presiding Judge.

The State appeals the order of the trial court granting the motion to dismiss of appellee, Anthony Stanley Klinakis, Sr.

Appellee was charged by accusation of use of fighting words (OCGA § 16-11-39) and simple assault (OCGA § 16-5-20). Appellee filed a plea in abatement as to the OCGA § 16-11-39 charge and demurred to the charge of simple assault.

The incident giving rise to these offenses arose between representatives from different unions during an election confrontation in a Northwest Airlines hangar. Two days later, the alleged victim filed a written complaint with the National Mediation Board asserting that Northwest Airlines (NWA) supervisors were in the area but did nothing to investigate; and, accordingly, NWA “is running interference for the I.A.M. [the competitor union]” and NWA “has not maintained a neutral position before or after [the victim’s union] filed for an election on NWA.” Held:

1. The State asserts the trial court erred in finding that state court jurisdiction over the above offenses “was preempted by the jurisdiction of the National Labor Board.” See generally 45 USC § 151 et seq. (Railway Labor Act). Appellee pertinently contended that the National Mediation Board had exclusive jurisdiction over representative disputes, and that this was such a dispute. On appeal, appellee asserts that contrary to the State’s enumeration of error, the trial court did not rule that subject matter jurisdiction was preempted by the exclusive jurisdiction of the National Mediation Board, but rather held such jurisdiction was preempted because the language as averred in the accusation did not, as a matter of law, constitute “fighting words” in violation of OCGA § 16-11-39 (1).

(a) The order of the trial court does not express the basis for granting appellee’s motion and plea in abatement as to Count 1, use of fighting words, but it does acknowledge the plea in abatement alleged, inter alia, lack of subject matter jurisdiction, lack of primary jurisdiction, and qualified privilege. The hearing transcript reveals the trial court concluded that because the State’s accusation averred only words and heated discussion, rather than crimes of actual violence, such as battery, shooting, or killing, the state court lacked subject matter jurisdiction. The trial court did not hold that the words averred did not violate OCGA § 16-11-39 as a matter of law. Thus, we are satisfied that the trial court in essence concluded the State’s interest in prosecuting criminal conduct based on the utterance of “ugly words” was not sufficient to preclude federal preemption. Thereafter, the trial judge granted appellee’s motion to dismiss and plea in abatement as to “use of fighting words,” and further ruled that the charge of simple assault was moot.

(b) Of major significance is that the use of “fighting words” does not constitute protected speech under the First and Fourteenth Amendments to the United States Constitution or under Art. I, Sec. I, Par. V of the Georgia Constitution. Fighting words constitute one of those narrow speech areas not constitutionally protected. In Bose Corp. v. Consumers Union &c., 466 U. S. 485, 504-505 (104 SC 1949, 80 LE2d 502), it was held: “In each of [the unprotected] areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance. In such cases, the [Supreme Court of the United States] has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. . . . The principle of viewpoint neutrality that underlies the First Amendment . . . imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected.” Thus, the Supreme Court in Bose, in determining whether certain remarks constituted constitutionally unprotected fighting words, “exercised independent judgment on the question whether particular remarks ‘were so inherently inflammatory as to come within that small class of “fighting words” which are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” ’ ” Id. at 505. Thus, it is beyond controversy that a state may enact a statute making criminal the utterance of “fighting words,” provided it does so in a constitutional manner, that is, the criminal statute must be facially constitutional and must be applied constitutionally to a particular offender. Lamar v. Banks, 684 F2d 714 (11th Cir.) (Ga. Code Ann. § 26-2610 (a), currently OCGA § 16-11-39, can withstand constitutional attack only if, as authoritatively construed by our courts, it is not susceptible of application to speech protected by the First and Fourteenth Amendments); compare Gooding v. Wilson, 405 U. S. 518 (92 SC 1103, 31 LE2d 408) (holding Ga. Code Ann. § 26-6303 unconstitutional on its face; statute was not narrowed to limit application thereof to fighting words).

The Constitution of this state provides that “[protection to person and property is the paramount duty of government and shall be impartial and complete.” Ga. Const, of 1983, Art. I, Sec. I, Par. II. In partial fulfillment of this duty, our legislature has enacted certain criminal statutes, including OCGA § 16-11-39 (fighting words) and OCGA § 16-5-20 (simple assault). These statutes, each in a different manner and for a different legislative purpose, either prohibit certain limited classes of constitutionally unprotected words or conduct directly relating to some form of an immediate threat of violence. Although these statutes make the prohibited words or conduct only misdemeanor offenses, one clear legislative purpose underlying these laws is to curtail such criminal activity before it escalates into or causes immediate acts of actual violence. The United States Supreme Court has noted that, even under the National Labor Relations Act (NLRA), “state jurisdiction to enforce its laws prohibiting violence, ... is not pre-empted,” observing that this type of violation does not involve federally protected conduct. Sears &c. Co. v. Carpenters, 436 U. S. 180, 204 (98 SC 1745, 56 LE2d 209). In Youngdahl v. Rainfair, Inc., 355 U. S. 131 (78 SC 206, 2 LE2d 151), a NLRA case, after observing that the issue was not whether the strikers’ conduct and language were likely to cause physical violence and declining to hold that the abusive language was federally protected, the court observed that “the state court was within its discretionary power in enjoining future acts of violence, intimidation, and threats of violence, by the strikers and the union.” (Emphasis supplied.) Id. at 139. Further, in Hudgens v. Local 315 &c. AFL-CIO, 133 Ga. App. 329, 335 (210 SE2d 821) (dictum), which involved the NLRA, this court concluded “the state retains the power to prosecute and punish for violations of its criminal statutes.” Compare Sheet Metal &c. Assn. v. Carter, 133 Ga. App. 872 (212 SE2d 645) holding that, notwithstanding the NLRA, the State has jurisdiction over the malicious tort action of conspiracy, inter alia, to deprive employment and means of livelihood. Thus, it would appear that even under situations involving the jurisdiction of the NLRA this state has retained concurrent jurisdiction to enforce those criminal statutes directly relating to the prevention of or incitement of immediate violence or to the prevention of the threat of immediate violence or violent injury. This is so, though actual violence is not required as an essential element of these particular criminal offenses or whether the offenses have been designated by the legislature as felony or misdemeanor.

We find no viable reason not to apply this rule to questions of preemption under the Railway Labor Act. See generally United States Constitution, Tenth Amendment. At least one circuit has concluded that in suits involving the question of preemption under the Railway Labor Act, the area of state criminal law remains “a matter of primary state responsibility.” Air Line Pilots &c. Intl. v. UAL Corp., 874 F2d 439, 447 (4) (7th Cir.). Furthermore, in the area of enforcement of state criminal laws, “the presumption is against federal preemption” (id.) and, thus, favors an active exercise of criminal jurisdiction by the state. “The state interest in preventing ‘conduct [and fighting words] marked by violence and imminent threats to public order’ is compelling.” Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 386 (89 SC 1109, 22 LE2d 344).

Appellant asserts that this case is distinguishable from San Diego &c. Council v. Garmon, 359 U. S. 236 (79 SC 773, 3 LE2d 775), a preemption case involving the NLRA. We note that as this case involves the Railway Labor Act, the NLRA has no direct application. Railroad Trainmen v. Jacksonville Terminal Co., supra at 377. However, assuming that a preemption question is presented to which Garmon could apply (id. at 383, n. 19), we find the facts of this case fall within one of the exceptions therein recognized. In Garmon, supra at 243-244, it was held: “When the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the [s]tates from acting. However, due regard for the presuppositions of our embracing federal systems . . . has required us not to find withdrawal from the [s]tates of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. [Cit.] Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the [s]tates of the power to act.” First, we find that under the circumstances of this case, the exercise of our criminal jurisdiction poses no significant threat of interference with the policies and jurisdiction of the Railway Labor Act. Secondly, assuming such a conflict exists, the regulated criminal conduct in this case is so deeply rooted in local feelings and responsibility that, in the absence of compelling congressional direction, we will not infer that the United States Congress has preempted the state of its power to prosecute these violations of its criminal law. In this regard, we find significant the legislative purpose underlying these two separate and independent criminal statutes (OCGA §§ 16-11-39 and 16-5-20) in the prevention and criminalization of constitutionally unprotected words and/or acts directly leading to the immediate threat of or incitement to violence; and we find equally significant, the state constitutional provision establishing the protection of people and property as “the paramount duty of government.” Compare Ga. Const, of 1983, Art. I, Sec. I, Par. II with Art. I, Sec. I, Par. VII. Moreover, the resolve of our legislature that the prohibition of “fighting words” as necessary for the protection of our citizenry is emphasized by its documented efforts to promulgate effective criminal sanctions in this area notwithstanding the close scrutiny of such legislation by state and federal courts. Accordingly, we find Garmon, supra, and its progeny do not preclude Georgia courts from exercising criminal jurisdiction over the subject matter of these offenses in this case.

(c) We further find from an examination of the averments in the two counts that the violation of OCGA § 16-11-39 is based on the utterance of fighting words while the simple assault violation is based on certain physical conduct. The trial court erred in dismissing the simple assault charge as moot.

(d) In view of our disposition of this case, we find it necessary in the interests of judicial economy to reaffirm that OCGA § 16-11-39 must be given constitutional application as to this particular defendant. See generally Lamar, supra. The General Assembly has now “limited to ‘fighting words’ the maximum outreach of the breach of the peace provision of the opprobrious language statute, [OCGA § 16-11-39 (1)], consistent with Gooding v. Wilson, supra.” Williamson v. State, 249 Ga. 851-852 (295 SE2d 305). OCGA § 16-11-39 must be limited in application to words that “ ‘have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.’ ” Gooding v. Wilson, supra at 524. Thus, courts shall limit application to “opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace . . . that is, words commonly called ‘fighting words.’ ” OCGA § 16-11-39; compare Davenport v. State, 184 Ga. App. 214 (361 SE2d 219). Moreover, under OCGA § 16-11-39, fighting words should be viewed with regard to the factual circumstances of their utterance. “The circumstances surrounding the words can be crucial, for only against the background of surrounding events can a judgment be made whether these words had ‘a direct tendency to cause acts of violence.’. . . ‘(C)onstitutional enforcement of even facially valid laws applied to “fighting words” now appears to depend as much on the factual circumstances surrounding a word’s utterance as on the character of the word uttered.’ . . . ‘Although the words used may be judicially noted as profane and abusive, a trier of fact might nonetheless find they did not constitute “fighting words” — that is, words likely to incite the addressee to a violent reaction under the circumstances of the case.’ ” Lamar, supra at 719 (III). Compare Wilson v. State, 223 Ga. 531, 533 (1) (156 SE2d 446) (legislative history found in Gooding, supra) (it is a matter for jury determination whether under the circumstances the words used were likely to cause a breach of the peace and whether there was sufficient provocation to excuse their use) with Crolley v. State, 182 Ga. App. 2, 3 (2) (354 SE2d 864) and Rozier v. State, 140 Ga. App. 356 (231 SE2d 131).

Moreover, if this confrontational situation is found to have arisen as a dispute regarding a forthcoming union representation campaign, among those factors to be evaluated (both in regard to whether the words, as proven, constituted “fighting words,” and whether there exists sufficient “justification or provocation”) are those recognized in Linn v. United Plant &c. Local 114, 383 U. S. 53, 58 (86 SC 657, 15 LE2d 582), to-wit: “Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, counter-charges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both [sides of a labor controversy] often speak bluntly and recklessly, embellishing their respective positions with imprecatory language.” However, existence of a labor dispute does not give any party to the controversy an unfettered right to violate the applicable criminal law of this state, as that law will be defined properly for constitutional application by the trial court.

2. In view of the above holding, we need not address appellant’s remaining enumeration of error.

Judgment reversed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the opinion except with respect to Division 1 (d). As dicta, it reaches beyond the issues before the court at this time. Moreover, it could be misunderstood as a comment on the expected evidence. Nor does the record show any misapprehension by the trial court of the law to apply in the further proceedings.

On Motion for Reconsideration.

Appellee Anthony Stanley Klinakis, Sr. has filed a motion for reconsideration. We decline to rule, based on the state of the evidence of record before us, that the words attributed to appellee did not constitute “fighting words” within the meaning of OCGA § 16-5-20. We further decline to determine whether the amended accusation of simple assault, Count 2, merged as a matter of fact with the accusation of fighting words, Count 1, as we find such issue as herein raised, is not ripe for appellant adjudication. Cf. Brown v. Tomlinson, 246 Ga. 513, 515 (272 SE2d 258) (ripeness); Southern Business &c. v. Norwest Fin. &c., 194 Ga. App. 253, 260 (390 SE2d 402) (dismissing cross-appeal without prejudice due to ripeness).

Decided October 29, 1992 —

Reconsideration denied November 18, 1992

Keith C. Martin, Solicitor, Kimberly C. Carr, Jackie N. Stanton, Assistant Solicitors, for appellant.

Lynne Y. Borsuk, R. Stephen Roberts, for appellee.

Motion for reconsideration denied.


text:
    A92A1972.
    PERSON v. THE STATE.
    (425 SE2d 371)
   McMurray, Presiding Judge.

Defendant was tried before a jury in the Superior Court of Clarke County, Georgia and convicted of using opprobrious and abusive words in violation of OCGA § 16-11-39 (1). This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant challenges the sufficiency of the evidence, arguing she did not use “fighting words” within the meaning of OCGA § 16-11-39 (1).

Any person who, “[w]ithout provocation, uses to or of another, in his presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in his presence, naturally tend to provoke violent resentment, that is, words commonly called ‘fighting words’ [is guilty of a misdemeanor].” OCGA § 16-11-39 (1). This Code subsection is limited in application to words that “ ‘have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.’ ” Gooding v. Wilson, 405 U. S. 518, 524 (92 SC 1103, 31 LE2d 408). In applying this standard, “[t]he circumstances surrounding the words can be crucial, for only against the background of surrounding events can a judgment be made whether these words had ‘a direct tendency to cause acts of violencef.]’ ” Lamar v. Banks, 684 F2d 714, 719 (11th Cir.). See State v. Klinakis, 206 Ga. App. 318, 322 (Id) (425 SE2d 665).

In the case sub judice, Officer Randy Moore of the Clarke County Police Department testified that after stopping defendant for driving a motor vehicle with an expired tag she accused him of carrying out his official duties in a racially discriminatory manner. Officer Moore also testified that defendant “continually [kept] getting up in [his] face and cussing [him,]” profanely threatening that she was not going to allow the officer to carry out his official duties, i.e., arresting her for driving without a driver’s license. More specifically, Officer Moore testified that defendant screamed in his face, “ T’m not going to any g_d_n jail and I’m not wearing any mother-f—g handcuffs.’ ” The officer explained that he did not threaten, intimidate or otherwise provoke defendant during the encounter; that defendant used profane language from the outset of the encounter and that he called other law enforcement officers for assistance because defendant’s abusive language and threatening demeanor indicated that her arrest would not be peaceful. Officer Moore testified that defendant violently resisted arrest after other law enforcement officers arrived; that it took three officers to subdue defendant and that even after restraint defendant continued to behave abominably, caving-in a patrol car door with her foot, “screaming, kicking at the back of [Officer Moore’s] head, threatening to blow [the officer’s] head off . . .” and spitting thick mucus at the officer. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of using “fighting words” in the presence of Officer Moore in violation of OCGA § 16-11-39 (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Evans v. State, 188 Ga. App. 347 (1) (373 SE2d 52). “See in this regard Johnson v. State, 143 Ga. App. 826 (240 SE2d 207) (1977), where [it was] held that appellant’s loud and abusive use of obscene and insulting language to a policeman, thereby attracting a crowd of people, constituted ‘fighting words.’ ” Brooks v. State, 166 Ga. App. 704, 705 (305 SE2d 436).

2. In her second enumeration, defendant contends the trial court erred in denying her motion to dismiss for selective and discriminatory prosecution, arguing that the “State prosecutes a disproportionate number of blacks with obstruction and related charges.”

At a hearing on defendant’s motion for selective and discriminatory prosecution, the State’s attorney stipulated that black persons comprise 25 percent of the population in Clarke County, Georgia, and that there are about “twice as many arrests of blacks as there are whites for obstruction and related charges in [Clarke County] historically.” Further, Lawson McGhee Sullivan (a white female) testified that she was a passenger in defendant’s car before defendant’s arrest; that she (Sullivan) employed profane language throughout defendant’s encounter with law enforcement officers and that she was not arrested or charged with any offense as a result of her vulgar language in the presence of the law enforcement officers. This evidence does not provide a basis to support defendant’s claim for selective prosecution.

Decided November 12, 1992.

L. Scott McLarty, for appellant.

“ ‘In United States v. Berrios, (501 F2d 1207 (2d Cir., 1974)), the court said, “To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. . . William W. Daniel, Ga. Criminal Trial Practice (1985 ed.) § 21-21.” Carver v. State, 185 Ga. App. 436, 438 (3) (364 SE2d 877), affirmed in Carver v. State, 258 Ga. 385 (369 SE2d 471).

In the case sub judice, there has been no showing that other persons in Clarke County have engaged in the type of verbal attack which forms the basis of the charge against defendant in the case sub judice and there is no evidence that the prosecution of defendant was racially motivated or undertaken for a retaliatory purpose. More specifically, defendant did not establish that there have been other arrests in Clarke County for violations of OCGA § 16-11-39 (1) and Lawson McGhee Sullivan testified that her (Sullivan’s) vulgar language “was a generalized kind of cursing” and was not directed so as to invoke violent resentment from any particular individual. Further, Officer Moore testified that he was not aware of defendant’s race or gender before the stop, explaining that he could not see inside the vehicle defendant was operating because the windows on the vehicle were tinted. This enumeration is without merit. Carver v. State, 185 Ga. App. 436, 438 (3), supra. See Sabel v. State, 250 Ga. 640, 643 (300 SE2d 663), and Lee v. State, 177 Ga. App. 698, 699 (1) (340 SE2d 658).

3. Defendant also contends in her second enumeration that improper issuance of warrants by a magistrate for her arrest “should prevent further prosecution of the charges. ...” This contention provides no basis for reversal.

“First, an enumeration of error should contain but one allegation of error. [Cits.]” Garvey v. State, 176 Ga. App. 268, 273 (5) (335 SE2d 640). Second, any irregularities in the issuance of warrants for defendant’s arrest are harmless because the undisputed evidence shows that defendant was lawfully arrested for committing a crime within the immediate knowledge of a law enforcement officer. OCGA § 17-4-20.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Harry N. Gordon, District Attorney, Richard Dickson, Assistant District Attorney, for appellee.


author: Johnson, Judge.

text:
    A92A1161.
    JESTER v. INGLES MARKET, INC.
    (425 SE2d 323)
   Johnson, Judge.

Amanda Jester brought this negligence action against Ingles Market, Inc., seeking damages for injuries she allegedly sustained when she slipped and fell on a foreign substance while shopping in its supermarket. The trial court granted summary judgment to Ingles. Jester appeals.

Construing the evidence in the record and inferences therefrom most strongly in favor of Jester, the facts are as follows: Jester went to Ingles Market to shop. As she entered the soap and detergent aisle, she passed a person she described as a white female standing near the front of the aisle. This woman wore no distinctive dress or name tag identifying her as an Ingles employee, nor did she at any time identify herself as an Ingles employee. Jester assumed she was an employee, however, because the activity the woman appeared to be engaged in was assumed by Jester to be straightening stock on shelves. There were no other persons in the aisle. After passing this unidentified woman, Jester continued down the aisle until she reached the area where her brand of detergent was displayed. She picked up a box of detergent, placed it in her cart, and as she started to walk away she slipped and fell on a clear liquid injuring her knee. The clear liquid was later determined to be a cleaner which spilled from a bottle on display for sale. After her fall, the woman Jester had passed at the front of the aisle called out that Jester had fallen, and the store manager and assistant manager immediately came to render aid. After Jester had been helped to her feet, she continued shopping. When Jester completed her shopping and paid for her groceries, the store manager carried them to her car.

The area where Jester fell was not near any cashier or check-out area, and could not be seen by any person who was not actually in the aisle. The store manager had walked past the area where Jester fell approximately ten minutes before her fall, and there was no spill on the floor at that time.

Jester described the spill as quite large, and admits that it would have been visible to her from her standing position had she been looking. She also admits that her view of the area was not obstructed and that her attention was not diverted by any display.

Jester alleges that Ingles negligently allowed this foreign substance to remain on the floor and thereby caused her fall. In her sole enumeration of error, Jester contends that the trial court erred in granting summary judgment to Ingles. We disagree.

It is well-settled that in order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the foreign substance and that the plaintiff was without knowledge of the substance or, for some reason attributable to the defendant, was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). It is undisputed that there is no evidence that Ingles had actual knowledge of the presence of any foreign substance on the floor. However, Jester argues that Ingles had constructive knowledge of the hazardous condition.

Constructive knowledge may be established by showing that a foreign substance had been on the premises for such a time that ordinary diligence by the. defendant should have effected its discovery; or that an employee of the defendant was in the immediate area of the hazardous condition and could have easily seen the substance. See Bright v. Food Giant, 177 Ga. App. 641, 642 (340 SE2d 272) (1986). There is no evidence in this case indicating how long the liquid substance had been on the floor. Consequently, there is no support for Jester’s bare assertion that the substance had been on the floor long enough that it should have been noticed and removed. See Queen v. Kroger Co., 191 Ga. App. 249 (1) (381 SE2d 413) (1989). However, there is uncontroverted evidence in the record that Ingles’ manager had been in the immediate area of Jester’s fall approximately ten minutes prior to the fall and did not encounter any foreign substance on the floor. “Where it appears a foreign [substance] had not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.” (Citations and punctuation omitted.) Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987).

In support of her contention that Ingles had constructive knowledge of the dangerous condition, Jester points to our opinion in Hardin v. Super Discount Market, 205 Ga. App. 646 (423 SE2d 18) (1992). Jester argues that the woman she allegedly saw in the detergent aisle appeared to be an employee of Ingles, and therefore constructive knowledge of the condition should be imputed to Ingles. In Hardin, supra, evidence was presented indicating that there were employees of the proprietor in the area of the appellant’s fall near the time of the fall. We held that this evidence was sufficient to show that genuine issues of material fact remained as to the proprietor’s actual and constructive knowledge of the hazard. Unlike the record in Hardin, however, there is no evidence in the record before us in this case that the unidentified woman who was present in the detergent aisle at the time of Jester’s fall was an employee of Ingles. Jester’s assumptions regarding the status of this unidentified woman are not supported by any evidence. Even if we assume this unidentified woman was an employee, Jester’s own testimony shows that the woman was positioned so she could not have a view of the spill. We therefore conclude that Jester has failed to show the existence of a genuine issue of fact as to Ingles’ constructive knowledge of any alleged hazardous condition on its premises.

Decided October 29, 1992 —

Reconsideration denied November 18, 1992

J. Phillip Hancock, for appellant.

Drew, Eckl & Farnham, G. Randall Moody, for appellee.

Furthermore, this court has previously ruled that “in order to recover for a slip and fall resulting from a foreign substance . . . not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence.” (Citations and punctuation omitted.) Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). Jester’s testimony that the store was adequately lit, that nothing obstructed her view of the aisle in which she fell, that her attention was not diverted by any product or display, and that although she did not notice the spill prior to her fall, she could have seen the spill even from her standing position is fatal in this case. In Smith we held that summary judgment is appropriate if the plaintiff could have seen the hazardous condition had she looked. See Smith, supra at 810. We therefore find no error in the trial court’s decision granting Ingles’ motion for summary judgment.

Judgment affirmed.

Pope, J., concurs. Carley, P. J., concurs in judgment only.


author: Beasley, Judge.

text:
    A92A1261.
    CLARK v. WILLIAMSON.
    (425 SE2d 311)
   Beasley, Judge.

Sheriff’s Investigator Clark was killed while a passenger in a county-owned automobile being operated by his superior and supervising officer, Captain Williamson. Clark’s widow (appellant) claimed workers’ compensation benefits and later brought a common-law tort action against the administratrix of Williamson’s estate (appellee), who was granted summary judgment. The question is whether the tort claim is barred by the exclusive remedy provisions of the Workers’ Compensation Act, OCGA § 34-9-11 (a).

Officers Clark and Williamson attended an evening barbecue at a rural cabin in Wilcox County. The record does not establish whether the event was work related nor whether they were on duty during that evening. They left together “in a hurry,” with Williamson driving along the dirt road “at a high rate of speed.” There is no indication whether they were then on official police business.

After apparently driving south on 1-75, they exited onto Georgia Highway 300 (a divided highway) and traveled west in the eastbound lane. A motorist on that road stated that she encountered a car traveling in the wrong direction “at a high rate of speed” shortly after 11:00 p.m. She was able to avoid it by swerving to her right and blowing her horn. After passing the vehicle, she looked in her rear view mirror and saw an explosion and fire. The woman called the Georgia State Patrol, which dispatched a trooper. The investigating officer determined that Williamson’s car had collided head-on with a tractor-trailer truck, killing both officers instantly. The truck driver reported that as he was driving on Highway 300 he saw the headlights of a car coming at him at a “high rate of speed,” in excess of the 55 mph speed limit. He tried to take evasive action but was unable to avoid the collision.

Based on the nature and extent of damage to the vehicles, the absence of skid marks attributable to the car, and the fact that it had traveled underneath the tractor portion of the rig, the trooper determined that the car “was running at a[n] excessive rate of speed,” which he estimated at 75 mph. He concluded that the truck driver did not contribute to the collision but instead that it resulted from Williamson’s speeding and driving on the wrong side of the road. It was shown to be State Patrol policy to drive within the speed limit when not on an emergency.

The bodies were taken to a local hospital where blood was drawn for chemical analysis. Williamson’s blood alcohol level was .16 grams percent.

1. Relying on Downey v. Bexley, 253 Ga. 125 (317 SE2d 523) (1984) and Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988), Clark’s widow asserts that Williamson’s misconduct precludes immunity under the workers’ compensation laws.

OCGA § 34-9-11 (a) provides: “The rights and the remedies granted to an employee by [the workers’ compensation laws, OCGA § 34-9-1 et seq.] shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer.....” In Downey and Davis, the Supreme Court held that the defense of co-employee immunity does not extend to persons who hold a special professional relationship of trust with one who claims abuse of that trust.

Downey involved a complaint for medical malpractice, fraud, and deceit against a co-employee company physician who operated an employee health clinic at the employer’s place of business. It was alleged that the physician secretly monitored and intentionally concealed from his patients information that they had contracted lead dust poisoning in the workplace. The Court held: “[W]here a professional co-employee is charged with fraud, deceit, and violation of professional trust, he may be held liable in tort for his wrongdoing to an injured co-employee.” Downey, supra at 125. The physician was not permitted to avoid liability by the co-employee doctrine of workers’ compensation law. The reason is that “[a] professional person is liable for an abuse of the trust reposed in him by the public, provisions of the compensation act notwithstanding.” Id. at 126.

The Court followed Downey in Davis, a medical malpractice action against a company physician. Fraud and deceit were not alleged. There was evidence that the physician failed to follow the employer’s policies for administering medical care to patients experiencing chest pain, but also that he exercised his independent professional judgment in deciding not to perform an essential test. The patient died of a heart attack. The Court held that the co-employee’s medical malpractice claim was not barred by the exclusive remedy provisions of the workers’ compensation laws, because of the relationship of trust between physicians and patients.

The non-applicability of co-employee immunity illustrated in these cases rests on the professional relationship, which raised a unique duty of trust over and above the duties of co-employees. Davis, supra at 157, made clear that “[t]he Workers’ Compensation laws were not intended to be a grant of immunity from professional malpractice actions.” See also Drury v. VPS Case &c. Svcs., 200 Ga. App. 540 (408 SE2d 809) (1991) (allowing a malpractice action against a vocational rehabilitation provider for injuries resulting from alleged professional negligence subsequent to the on-the-job accident and distinct from the compensable claim).

Captain Williamson occupied a position of public trust generally as a professional law enforcement officer, Ga. Const. 1983, Art. I, Sec. II, Par. I, but the rationale of Davis and Downey is limited to malpractice actions. It does not extend to his relationship, which was not an individual and particular fiduciary one, to his subordinate officer. He owed no unique duty to Clark. “The legislative intent of OCGA § 34-9-11 is clear. ‘This provision has been interpreted consistently to mean that, where the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against his employer. (Cits.)’ [Cit.]” Drury, supra at 540. The exclusion extends not only to the employer but also to “an employee of the same employer.” OCGA § 34-9-11 (a). Accord Mann v. Workman, 257 Ga. 70 (354 SE2d 831) (1987); Williams v. Thomas, 187 Ga. App. 527 (370 SE2d 773) (1988). Williamson’s estate is immune from suit under the exclusive remedy provisions granted a co-employee by OCGA § 34-9-11 (a).

2. Clark’s widow further contends that Williamson’s estate is precluded from claiming immunity under the workers’ compensation laws because his wilful misconduct fell outside the scope of his employment.

First, both parties aver or admit in their pleadings that at the time of the collision, Williamson and Clark were both acting within the scope of their employment as county law enforcement officers. Cf. O’Kelley v. Gates, 160 Ga. App. 400 (287 SE2d 262) (1981) (co-employees, but non-barred plaintiff was outside scope of her employment whereas defendant was within scope of her employment at time of collision); Crawford v. Meyer, 195 Ga. App. 867 (395 SE2d 327) (1990) (co-employees were both within scope of employment, barring recovery). Second, the undisputed evidence establishes that appellant asserted and received death benefits under the workers’ compensation laws. “ ‘In exchange for the right to recover scheduled compensation without proof of negligence on the part of the employer in those cases in which a right of recovery is granted, the employee foregoes other rights and remedies which he might otherwise have had, but if he accepts the terms of the Act he as well as the employer is limited to those things for which the Act makes provision.’ [Cit.] Appellant by accepting the terms of the Act under the doctrine of equitable estoppel and benefitting thereby is estopped and barred from recovering in this tort action against appellee [employer]. See OCGA § 34-9-11; [Cits.]” Lott v. Ace Post Co., 175 Ga. App. 196, 197 (332 SE2d 676) (1985). Estoppel applies as well in an action, such as this one, against a co-employee. Mann v. Workman, 181 Ga. App. 211, 212 (1) (351 SE2d 680) (1986), aff’d, 257 Ga. 70, supra.

Neither OCGA § 34-9-17 nor OCGA § 34-9-1 (4) is applicable. The first provides an affirmative defense to the employer against a claim for compensation benefits where the injury proximately resulted from an injured employee’s wilful misconduct, including intoxication. This suit is not for workers’ compensation benefits.

The second leaves open a tort claim because it excludes workers’ compensation benefits for injuries “caused by the willful act of a third person directed against an employee for reasons personal to such employee, . . .” Id. See Knight v. Gonzalez, 181 Ga. App. 468 (352 SE2d 646) (1987). The undisputed facts here preclude this situation.

Appellant did not establish a factual basis for defeating the motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided October 28, 1992 —

Reconsideration denied November 18, 1992.

Morris & Webster, Craig A. Webster, for appellant.

Michael J. Bowers, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Susan J. Levy, Staff Attorney, Simpson & Gray, Joseph B. Gray, Jr., Richard L. Hodge, Dennis, Corry, Porter & Thornton, R. Clay Porter, Grant B. Smith, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A92A1268.
    HARMON v. THE STATE.
    (425 SE2d 343)
   Birdsong, Presiding Judge.

Diane Elizabeth Harmon, a/k/a Diane Elizabeth Lane, appeals her judgment of conviction of DUI and sentence. Her sole enumeration of error is that the trial court erred in granting the State’s “ex post facto” request to charge no. 5, which provides: “If there was at that time an alcohol concentration of .08 grams or more, it shall be inferred the person was under the influence of alcohol.” Appellant argues this charge violates the ex post facto prohibitions of both the Constitutions of Georgia and the United States.

Appellant entered a plea of nolo contendere reserving the right to appeal the trial court’s ruling regarding the requested charge. Held:

Assuming without deciding that the issue whether the proposed charge violated the ex post facto provisions of the United States Constitution was adequately raised and a ruling obtained thereon at trial, we still are unable to reach the error as enumerated on appeal.

Appellant’s sole enumeration of error is limited to a claim of error by the trial court’s “decision to charge appellee’s ex post facto request to charge no. 5.” We will interpret this enumeration to include a claim that charge no. 5, as requested, would result in an unconstitutional application of OCGA § 40-6-392 so as to violate the ex post facto provisions of the United States Constitution. However, the record when examined in its entirety reveals that, although the trial court stated on the record that it was ruling “on the motion for request of charge with a motion in limine . . . and from the defense against that request for charge and against the State mentioning .08 in its argument,” it did not grant the State’s charge request and did not rule that it would instruct the jury thereon as enumerated in the error before us. Rather, the trial court recognized that the State’s proposed charge was seriously flawed as it charged in terms of a mandatory presumption rather than permissible inference. Compare Isaacs v. State, 259 Ga. 717 (386 SE2d 316). Thus, the court stated: “Well, it’s not a presumption of guilt. The correct charge is a jury may infer if they wish to do so. The charge that’s given [proposed] is somewhat incorrect in that regard because the correct charge would be if you find an .08, the jury may infer if they wish to do so, that the person was under the influence of alcohol. Whether or not they make such inferences is entirely in their discretion.” (Emphasis supplied.) The record unequivocally establishes that the trial court tacitly denied State’s request to charge no. 5, contrary to the claim made in appellant’s enumeration of error, and ruled that it would give a charge couched in language of permissible inference rather than in terms of mandatory inference or presumption as proposed by the State. Appellant failed to enumerate as error the modified charge which the trial court elected to give, and erroneously enumerated as error the trial court’s alleged election to give State’s request to charge no. 5. Therefore, the charging error, not having occurred as enumerated, is not before us on appeal. Morris v. State Farm &c. Co., 203 Ga. App. 839, 840 (5) (418 SE2d 119). “ ‘One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.’ ” Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25).

Decided November 5, 1992 —

Reconsideration denied November 18, 1992

Sexton, Moody & Renehan, Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Kimberly C. Carr, Assistant Solicitor, for appellee.

Accordingly, we cannot and do not address in this appeal whether the charge that the trial court actually was prepared to give would have deprived appellant of a defense previously available or would have resulted in a lessening of the burden of proof in a manner to constitute an ex post facto violation. See generally Collins v. Youngblood, 497 U. S. 37 (110 SC 2715, 111 LE2d 30); compare De Woody v. Superior Court, 87 Cal. Rptr. 210 (CA CA).

Based on the holdings above, we will not reverse the judgment of conviction resulting from acceptance of the conditional nolo contendere plea.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1303.
    CITY OF ATLANTA v. BELL et al.
    (425 SE2d 325)
   Johnson, Judge.

Harold Bell was terminated from his employment as a police officer with the City of Atlanta Police Department for violating four departmental work rules: 1.01 (a) (d) Appropriate Action Required; 1.03 Truthfulness; 2.37 Unsatisfactory Performance; and 2.50 Maltreatment or Unnecessary Force. He appealed from his termination to the Civil Service Board of the City of Atlanta. The Civil Service Board reversed the dismissal and ordered Bell reinstated with back pay. The City of Atlanta filed an application for writ of certiorari to the Fulton County Superior Court which was granted. Following a review of the record and hearing oral argument of counsel, the superior court affirmed the decision of the Civil Service Board. We granted the City of Atlanta’s application for discretionary appeal to review that decision.

The facts in this case are of such primary importance to the issues presented that they are set forth in detail as follows: Bell, an eight-year veteran of the Atlanta police force, was investigating a vehicular accident. A van occupied by Charlene Reeves and William Felton had been hit by a car driven by Jacques Wilson. Wilson had fled the scene. Both Reeves and Felton sustained injuries in the collision. Bell was told by Reeves and Felton that Felton had been driving the van at the time of the accident. Other witnesses told another police officer at the scene that Reeves had been the driver. After Wilson was apprehended and charged with hit and run, he overheard the other police officer tell Bell that witnesses to the collision indicated that Reeves, not Felton, had been driving the van. Wilson then told Bell that Reeves was in fact driving the van, and Bell concluded that Reeves was lying to him.

Over the protest of the paramedic, Bell removed Reeves from the ambulance where she was being treated for her injuries. He placed her under arrest, handcuffed her, and charged her with driving without a license, driving under the influence of alcohol, and obstructing an officer. Bell placed Reeves in his patrol car. Felton was seated partially in and partially out of an adjacent patrol car, and Bell said to Felton: “You asked for it. You’re going to get it now.” Bell began to remove Felton from the car. Felton resisted, and Bell, along with two other officers, began forcibly shoving him into another patrol car. During the struggle, Bell choked Felton. Then, while the other officers were still holding Felton’s arms, Bell punched Felton in the face. He formally placed Felton under arrest, charging him with simple battery and obstruction of a police officer. Reeves and Felton were held at the City Pre-Trial Detention Center for two days. All charges against them were ultimately dropped.

Several weeks after the incident, Reeves and Felton sought to file a complaint against Bell with the police bureau. Reeves was told by an officer at the Office of Professional Standards that she did not believe that Bell was capable of such behavior. The officer refused to make a report, and told Reeves and Felton that they might speak to someone at the precinct to which Bell was assigned. At the precinct, Reeves and Felton were told that it was their word against Bell’s. They took this to be an indication that they had no reason to proceed with their complaint.

Fifteen months later, Reeves and Felton again tried to lodge their complaint. This time the Office of Professional Standards began an investigation which resulted in Bell’s dismissal.

In its opinion, the Civil Service Board found Bell’s actions to be “deplorable.” It concluded that Bell’s “zeal to find the truth clouded his judgement (sic) and certainly skewed his priorities.” With respect to the striking of Felton while removing him from a patrol car, the Board stated that “(t)his type of unwarranted physical force is inappropriate and unworthy of a sworn police officer” and was “less than professional.”

Bell’s disciplinary history, which was not cited in the Board’s opinion but is part of the record, indicates that Bell had received five written reprimands for, inter alia, making an improper arrest, following improper procedure, using abusive language, and for abuse of authority. He had been sent to retraining school twice for violating rules regarding maltreatment of citizens and fitness for duty, and he had been suspended three times in 1988. One 30-day suspension was imposed for abuse of authority, maltreatment, and lack of courtesy.

Despite its abhorrence of Bell’s conduct, the Board concluded that the police bureau had failed to investigate the complaint filed by Reeves and Felton in a timely manner as required by the Code of Ordinances of the City of Atlanta, Article D, Disciplinary Actions Section 5-3042 (2) (a). The police bureau was therefore estopped from prosecuting the complaint, the Civil Service Board concluded. The Board drew its conclusion despite the fact that there was no evidence presented at the hearing in support of Bell’s assertion that the passage of 15 months from the time of the original effort to lodge the complaint to the time of the hearing would prejudice his defense of his conduct in this incident.

The city asserts that the superior court erred in denying its petition because the Board’s ruling was contrary to the facts. In this case, we must balance a police officer’s right to a timely investigation of complaints against him and the public’s interest in responsible, professional, police services. Any accusation of police misconduct must be placed under the closest scrutiny.

An appellate court reviewing the decision of an administrative board may not substitute its discretionary judgment for that of the board. Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986). Nonetheless, when the finding of an administrative board is contrary to the evidence, arbitrary, or capricious it may be reversed. OCGA § 50-13-19 (h) (5), (6). City of Atlanta v. Lambright, 205 Ga. App. 558 (423 SE2d 265) (1992). We find the Board’s conclusion that the police bureau was estopped from terminating Bell was an arbitrary result in view of its own findings that Bell was guilty of the misconduct complained of and in the complete absence of any evidence that the 15-month delay from the time of the incident to the time of investigation of the complaint had in any way prejudiced Bell in his defense of his conduct. Given the substantial evidence of Bell’s rogue behavior in this case, such a result contravenes public policy and cannot stand. Thus the trial court, apparently acting in the belief that it was bound to affirm the Civil Service Board under the “any evidence” rule, erred in affirming the Board’s legal conclusion that the police bureau was estopped from terminating Bell because the investigation was not timely. The decision of the superior court affirming the decision of the Civil Service Board reinstating Bell is reversed.

Decided October 29, 1992 —

Reconsideration denied November 18, 1992

Overtis H. Brantley, Elizabeth B. Taylor, for appellant.

Harold Bell, pro se.

Jonathan 0. Oden, for appellees.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1424.
    NATIONAL SERVICES INDUSTRIES, INC. v. TRANSAMERICA INSURANCE COMPANY.
    (425 SE2d 327)
   Johnson, Judge.

Steven Banks was employed by National Services Industries, Inc. d/b/a North Brothers Company (NSI). Banks was given permission by his foreman to drive a truck owned by NSI solely for the purpose of transporting several NSI workers to and from a job site. NSI insured the truck under a plan of self-insurance. Contrary to his foreman’s specific instructions, Banks drove the truck on a personal mission. While using the truck for his personal errand, Banks collided with a police vehicle being driven by Officer Welber Hutchison. Hutchison and his wife filed a complaint against NSI and Banks for personal injuries allegedly sustained in the collision. Transamerica Insurance Company, the Hutchison’s uninsured motorist carrier, filed a declaratory judgment action against NSI, the Hutchisons and Banks, contending that Banks is insured under NSI’s plan of self-insurance and therefore Transamerica has no liability as the uninsured motorist carrier. The Hutchisons filed a cross-claim against NSI also asserting that Banks is insured under NSI’s self-insurance plan. All parties except Banks filed motions for summary judgment. The trial court, in a single order, denied NSI’s motion for summary judgment, granted Transamerica’s motion for summary judgment and granted the Hutchison’s motion for summary judgment on its cross-claim. The court applied the permissive user clause contained in OCGA § 33-34-2 (5), which provides that the term “insured” includes any person using the insured vehicle with the express or implied permission of the named insured, in holding that Banks is insured under NSI’s plan of self-insurance. NSI appeals from the trial court’s order.

1. NSI argues that the trial court erred in finding that Banks is insured under its plan of self-insurance. NSI contends that Banks is not insured because at the time of the accident he had exceeded the scope of his permission by driving the truck on a personal mission. In support of its argument, NSI relies on cases which, in interpreting permissive user clauses in insurance policies, have held that once a driver of a vehicle goes beyond the scope of the permission granted, the driver is no longer an insured under the applicable policy. See Strickland v. Ga. Cas. &c. Co., 224 Ga. 487 (162 SE2d 421) (1968); Select Ins. Co. v. Register, 192 Ga. App. 145 (384 SE2d 238) (1989); Allstate Ins. Co. v. Martin, 136 Ga. App. 257 (220 SE2d 732) (1975). In adopting such a “scope of permission” analysis of insurance policies, this court rejected the “first instance permission” rule. Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512 (3) (160 SE2d 844) (1968); Hodges v. Ocean Accident &c. Corp., 66 Ga. App. 431 (18 SE2d 28) (1941). Under the doctrine of first instance permission, the insurer is liable regardless of the purpose for which the vehicle is being used; once permission is given to use the vehicle, the insurer is liable even though at the time of the accident the operator was using the vehicle for a purpose prohibited by the named insured. Hodges, supra at 435. Because NSI’s potential coverage of Banks is based on its status as a self-insurer, not on an insurance policy, the cases construing insurance policies, while instructive, do not control the instant case. Instead, we must look to the statutes governing self-insurance to determine whether Banks was an insured at the time of the collision.

“OCGA §§ 33-34-2 (12) and 40-9-101 mandate that self-insurance plans ‘provide coverages, benefits, and claims handling procedures substantially equivalent to those afforded by a policy’ of motor vehicle insurance in compliance with Title 33, Chapter 34 of the OCGA.” Twyman v. Robinson, 255 Ga. 711 (342 SE2d 313) (1986). Under OCGA § 33-34-2 (5), “ ‘Insured’ means, in addition to the insured named in the policy, . . . any other person using or occupying the insured vehicle with the express or implied permission of the named insured. ...” (Emphasis supplied.) We must interpret, for the first time, this statutory permissive user clause in the absence of an insurance policy. Specifically, we must determine whether the legislature intended this clause to be limited to a person using the vehicle solely within the scope of the permission granted or to embody the concept of first instance permission.

“Where the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. [Cit.]” Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106, 107 (410 SE2d 446) (1991). Here, the language of the statute is plain; it provides that any person given express or implied permission by the named insured to use the vehicle is also insured under the self-insurance plan. The statute makes no mention of the purpose for which the vehicle is used once permission is granted. Thus, there is nothing in the statute’s plain language which indicates that the legislature intended to limit its permissive user definition of an insured to a person acting solely within the scope of the permission granted. This court does not have the authority to impose such a limitation on the plain language of the statute.

We must construe the statute in connection and in harmony with the existing law. Atlanta Journal &c. v. Sims, 200 Ga. App. 236, 237 (407 SE2d 464) (1991). In 1974, the legislature enacted the Motor Vehicle Accident Reparations Act, which not only included the permissive user clause found in OCGA § 33-34-2 (5), but also provided for compulsory motor vehicle liability insurance. OCGA § 33-34-1 et seq. This court rejected the first instance permission rule in cases interpreting insurance policies prior to the enactment of Georgia’s compulsory liability insurance law. Ditmyer, supra; Hodges, supra. “Compulsory motor vehicle liability insurance in this state established the public policy that innocent persons who are injured should have an adequate recourse for the recovery of their damages. Financial responsibility laws are designed to protect the general public.” (Citations and punctuation omitted.) United Services Auto. Assn. v. Lail, 192 Ga. App. 487, 488 (385 SE2d 424) (1989). States which have enacted mandatory motor vehicle liability insurance have adopted the first instance permission rule because “[t]he intent of the legislature is to protect those injured by automobiles, no matter who may be driving the car or where it is driven, provided the owner has voluntarily entrusted possession of the car to the driver for some purpose, and regardless of whether the person in possession of the car observes or breaks the contract of bailment. [Cits.]” Hodges, supra at 436. We must presume that at the time the legislature enacted the statutory permissive user clause along with compulsory motor vehicle liability ' insurance, it was aware that this court’s rejection of the first instance permission rule was largely premised on the absence of compulsory motor vehicle liability insurance in Georgia. Thus, we conclude that the legislature, in enacting the compulsory motor vehicle liability insurance law, intended to include first instance permission in its permissive user clause; we find that the legislature intended for a permissive user to be insured regardless of the purpose for which the vehicle was being used at the time of the accident. This ruling is strictly limited to our construction of the statutory permissive user clause in the absence of an insurance policy; it has no effect on the prior decisions of this court rejecting the first instance permission rule in the context of interpreting permissive user clauses in insurance policies.

In the instant case, therefore, Banks was insured at the time of the accident as a permissive user of the vehicle under NSI’s plan of self-insurance. Accordingly, the trial court did not err in denying NSI’s motion for summary judgment and in granting the respective motions for summary judgment of Transamerica and the Hutchisons.

2. NSI also contends that the trial court erred in holding that the extent of its liability as a self-insurer was not limited to the minimum amounts of coverage required by statute. See OCGA §§ 40-9-2 (5); 33-34-4. NSI could have limited its coverage as a self-insurer to the minimum statutory requirements by specifying such limits in its plan on file with the Georgia Department of Insurance. See American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228 (421 SE2d 741) (1992); Proctor v. Rapid Group, 203 Ga. App. 232 (416 SE2d 774) (1992). The record on appeal, however, contains no evidence that NSI’s plan of self-insurance specifies such limitations. In fact, the trial court indicated at the hearing on the respective motions for summary judgment and in its order that NSI’s self-insurance plan does not contain any coverage limitations, statutory or otherwise. Absent such limitations in the plan, the trial court was correct in ruling that NSI’s liability was not limited to the statutory mínimums and that NSI would be liable for the full amount of damages. Accordingly, we find no error.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided October 29, 1992 —

Reconsideration denied November 18, 1992

McLain & Merritt, M. David Merritt, Albert J. Decusati, for appellant.

Steven S. Banks, pro se.

Michael T. Bennett, Long, Weinberg, Ansley & Wheeler, James S. Strawinski, Jennifer T. Schloegel, for appellee.

       That case is still pending in the trial court and two appeals from it have already been decided by this court. See Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885 (383 SE2d 212) (1989); Nat. Svcs. Indus. v. Great Global &c. Co., 198 Ga. App. 258 (401 SE2d 286) (1990).

       At the time the Hutchisons filed their lawsuit in 1985, OCGA § 33-34-2 (5) was part of the Georgia Motor Vehicle Accident Reparations Act, more commonly known as the No-Fault Act. After the Hutchisons filed their action, the Georgia Legislature repealed the No-Fault Act, effective October 1, 1991.