author: McMurray, Presiding Judge.

text:
    A96A0198.
    DAVIS v. PIEDMONT HOSPITAL, INC.
    (473 SE2d 531)
   McMurray, Presiding Judge.

In this slip and fall case, plaintiff Davis appeals the grant of summary judgment in favor of defendant Piedmont Hospital, Inc. Held:

Plaintiff’s evidence presents a “foreign substance” type of situation. While attempting to deliver certain materials to, her physician, plaintiff was forced to use an unfamiliar route about defendant’s premises in order to avoid construction work. The fall occurred while she was descending an outside stairway which she had never before traversed. It had been raining, and the ground was wet. Plaintiff used the handrail as she walked down the stairs until she reached an obstruction consisting of “two 2x4 boards” connected in an “L” shape and resting against or attached to the handrail. There were only a few steps remaining so plaintiff did not deem it worthwhile to cross to the opposite handrail, which was over 19 feet from the one she had been using, before going down the few remaining steps. On the next to last step her foot slipped, and she fell.

Through her own testimony and other evidence, plaintiff sought to establish that there was debris, mold, and slime on the steps which caused a slippery condition beyond that which would have been caused merely by the rain and that this material caused her fall. Plaintiff maintained that some of the material from the step on which she slipped was captured on the top of her left shoe when it rubbed on the same step upon which she slipped. Plaintiff also testified that she was looking but could not see this material on the steps since it was obscured by the rainwater.

“ ‘[W]here an invitee has slipped and fallen on a foreign substance . . ., knowledge is the decisive issue and the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.’ . . . [Cit.]” Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305). See also PCT Svcs. v. Pope, 208 Ga. App. 192, 193-194 (430 SE2d 139).

The second element is clearly shown by plaintiff’s evidence that she was unfamiliar with the stairs in question and that the foreign substance on the stairs was not visible even though she was using care to watch where she was stepping. The evidence as to the first element is highly contested with defendant seeking to establish that there was in fact no foreign substance on the steps, or that any foreign substance on the steps had not been there for a period of time sufficient to provide defendant with constructive knowledge of the hazard, and that plaintiff had tripped over her own feet. Nonetheless, for purposes of summary judgment we do not look to the conflicts in the evidence but instead to whether plaintiff’s evidence presents a prima facie case which would authorize a jury to resolve the issues of fact in her favor. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Based on plaintiff’s description of the material in which she slipped as being of organic origin such as caused by a lack of proper drainage, we must conclude that plaintiff has presented some evidence of defendant’s constructive knowledge of the substance. “A proprietor has a duty to exercise ordinary care to keep the premises safe for invitees, which includes ‘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.’ (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga. App. 307, 308 (447 SE2d 637) (1994). . . . [I]f the evidence shows that a foreign substance has remained on the floor of the premises for a sufficient period of time that it should have been discovered and removed in a reasonable inspection of the premises, then an inference arises from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the foreign substance. Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781) (1988).” Johnson v. Autozone, 219 Ga. App. 390, 392 (465 SE2d 463). In this instance, the nature of the material on which plaintiff alleges to have slipped suggests in and of itself that the material may have been present for some period of time at least sufficient for the growth of the organic matter. Thus, questions for a jury are posed as to the existence of any foreign matter, the accuracy of plaintiff’s identification and description of the material on which she alleged to have slipped, and whether that material should have been found and removed in the course of a reasonable inspection of the premises by defendant. Plaintiff having presented some proof of all elements of her case, the grant of summary judgment in favor of defendant was error.

Decided June 18, 1996

Reconsideration denied July 8, 1996

Orlando & Komie, Richard Kopelman, for appellant.

Tittsworth & Grabhe, John C. Grabbe IV, for appellee.

Judgment reversed.

Johnson and Ruffin, JJ, concur.


source: Caselaw Access Project

author: POPE, Presiding Judge.

license: Public Domain

text:
    A96A0199.
    DUBOSE v. ROSS.
    (473 SE2d 179)
   POPE, Presiding Judge.

Plaintiff Margaret Ross sued defendant Antonio Dubose for negligence after she was injured in a car accident allegedly caused by defendant’s failure to yield the right-of-way to plaintiff. Defendant made a motion in limine requesting that no reference to insurance be made during the trial. The trial court granted the motion and ruled that there would be no mention of insurance other than qualification of the jurors as to defendant’s insurance company.

During the trial, plaintiff testified on direct examination that defendant was drunk or “high” at the time of the accident. On cross-examination, defense counsel asked plaintiff how she could tell defendant was drunk, and how close she was to defendant. In response to defense counsel’s line of questioning, plaintiff explained that although they were some distance from each other after 'moving their cars from the roadway, plaintiff and- defendant were close enough to have a conversation. In describing the content of that conversation, plaintiff related defendant’s admissions of fault and mentioned that plaintiff had asked defendant whether he had insurance, to which defendant responded in the affirmative. Immediately after this testimony, defense counsel made a motion for a mistrial. The trial court denied the motion and, after rebuking plaintiffs counsel, instructed the jury that insurance had nothing whatsoever to do with the case and that any reference made thereto must be disregarded. The trial then continued without further mention of insurance, and the jury returned a verdict for plaintiff.

In his sole enumeration, defendant argues that the trial court committed reversible error in failing to grant defendant’s motion for a mistrial. Concluding that the trial court did not manifestly abuse its discretion, we disagree and affirm. See Ga. Power Co. v. Hinson, 179 Ga. App. 263, 270 (7) (346 SE2d 73) (1986).

As a general rule, the fact that a party has liability insurance is not admissible into evidence, and the disclosure of that fact to the jury is grounds for a mistrial. McKin v. Gilbert, 208 Ga. App. 788 (1) (432 SE2d 233) (1993); Thomas v. Newnan Hosp., 185 Ga. App. 764 (1) (365 SE2d 859) (1988). Nevertheless, “ ‘[i]n Georgia the injection into a case of testimony pertaining to liability insurance does not automatically require a grant of a motion for a mistrial. It is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial should be granted. (Cits.) The determination as to whether these harmful factors are present in a case necessarily rests in the discretion of the trial judge. Appellate courts should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse. This principle is historically respected in this jurisdiction. (Cit.). . .’ Wallace v. Cates, 120 Ga. App. 228 (170 SE2d 40) [(1969)].” Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 881 (3) (311 SE2d 193) (1983). See McKinney & Co. v. Lawson, 180 Ga. App. 550, 553 (2) (349 SE2d 763) (1986), rev’d on other grounds, 257 Ga. 222 (357 SE2d 786) (1987).

In the instant case, the trial judge exercised his discretion by determining that plaintiff’s testimony regarding insurance was not so harmful or prejudicial in nature to defendant that a mistrial was necessary. He therefore denied defendant’s motion for a mistrial and issued a curative instruction immediately after the reference to insurance. We cannot conclude as a matter of law that determination constitutes a manifest abuse of discretion in light of the fact that the jury had already been made aware of the existence of liability insurance when the trial court qualified the jury members as to any relationship they might have with defendant’s insurance company, as authorized by Georgia law. See Gonzalez v. Wells, 213 Ga. App. 494 (445 SE2d 332) (1994). Moreover, the jury could and should have assumed that defendant had liability insurance because Georgia law requires motorists to obtain a minimum of $15,000 in bodily injury liability coverage. OCGA §§ 33-34-4 and 40-9-2. In this day and age, “[a]ny juror who doesn’t know that there is liability insurance in [a case like this] should probably be excused by virtue of [his or her ignorance].” Young v. Carter, 121 Ga. App. 191, 193 (173 SE2d 259) (1970) (Hall, P. J., concurring).

Decided June 18, 1996

Reconsideration denied July 8, 1996

Crim & Bassler, Kimberly L. Schwartz, for appellant.

Freedman & Sinowski, Thomas C. Sinowski, Marc H. Bardack, for appellee.

Upon review of the entire trial transcript, we also cannot conclude as a matter of law that any harm or oppression resulted from plaintiff’s brief reference to insurance. Defendant’s testimony at trial demonstrates that he cut across the roadway on which plaintiff was traveling in an attempt to enter a parking lot. Defendant further admitted that at least part of his car was still in the roadway when the accident occurred. It is undisputed that after the accident, defendant was cited for, and pled guilty to, failure to yield the right-of-way. Consequently, there was ample evidence of defendant’s negligence. And based on plaintiff’s injuries, the verdict was not excessive.

Furthermore, in cases like this, “[e]rror arises only when a party intentionally brings before the jury on an immaterial or irrelevant matter the fact that the opposite party carries insurance.” (Citations and punctuation omitted.) Jones v. Parrish, 203 Ga. App. 566, 569 (2) (417 SE2d 210) (1992). Here, it is not clear that plaintiff’s reference to insurance was intentional, and it was within the trial court’s broad discretion to treat it as unintentional. See Edwards v. Adams, 117 Ga. App. 508, 509 (3) (160 SE2d 841) (1968). Moreover, as the trial court noted, plaintiff’s testimony related statements to the jury which were part of the res gestae, and thus had some relevancy. As such, the trial court did not err in failing to grant a mistrial. See Smith v. Greene, 144 Ga. App. 739, 740-741 (1) (242 SE2d 312) (1978); McDuffie County v. Rogers, 124 Ga. App. 442 (1), (2) (184 SE2d 46) (1971).

Judgment affirmed.

Andrews and Smith, JJ., concur.


text:
    A96A0388.
    SHIPLEY v. HANDICAPS MOBILITY SYSTEMS, INC.
    (473 SE2d 533)
   McMurray, Presiding Judge.

Susean Shipley, a paraplegic, filed an action against Handicaps Mobility Systems, Inc. (defendant) for losses she allegedly sustained when defendant’s agents failed to provide her with adequate advice, products and services during Shipley’s endeavor to acquire a van equipped to accommodate her particular physical disabilities. Shipley’s complaint alleged damages for breach of contract and negligence, including requests for punitive damages and attorney fees. Defendant denied the material allegations of the complaint and later filed a motion for summary judgment with supporting affidavits. Shipley responded with a motion for sanctions and to compel depositions from two persons employed as defendant’s principal agents at the times of the alleged wrongdoing, both who gave affidavits in support of defendant’s motion for summary judgment. Shipley alleged that defendant ignored several discovery requests and failed to respond to her notices to take these witnesses’ depositions.

In a single order, the trial court granted Shipley’s motion for sanctions and to compel discovery, denied summary judgment as to Shipley’s claims for breach of contract and attorney fees, and granted summary judgment as to Shipley’s claims based on ordinary negligence and for punitive damages. This appeal, filed pursuant to OCGA § 9-11-56 (h), is from that part of the trial court’s order granting partial summary judgment as to Shipley’s claims based on ordinary negligence and for punitive damages. Held:

Shipley contends the trial court erred in granting summary judgment before she was able to question the two key defense witnesses who avoided her discovery attempts and filed affidavits in support of defendant’s motion for summary judgment. We agree.

The depositions Shipley had to compel were from persons directly associated with defendant’s operations at the times of the alleged wrongdoing. Although these witnesses gave affidavits in support of defendant’s motion for summary judgment, Shipley never had opportunities to cross-examine them before the trial court entered partial summary judgment in favor of defendant on Shipley’s tort claims. This judgment deprived Shipley of an opportunity to develop proof which may well give rise to triable issues of fact as to Shipley’s claims based on ordinary negligence and for punitive damages. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). It is simply too soon to tell. And to say otherwise not only ignores that Shipley, as the non-moving party on summary judgment, is entitled to all favorable inferences and reasonable doubts which may arise from a fully developed record, Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245), but also overlooks the rule that, when a party fails to produce evidence, the charge or claim against the party is presumed to be well founded. OCGA § 24-4-22. See Dunaway v. Parker, 215 Ga. App. 841, 850 (5) (453 SE2d 43). Under the peculiar circumstances of the case sub judice, we find that the trial court prematurely ruled on defendant’s motion for summary judgment and direct that any such ruling wait until after Shipley’s right to discovery is complete. Accordingly, the judgment granting partial summary judgment in favor of defendant is hereby reversed.

Decided June 19, 1996

Reconsideration denied July 8, 1996.

William H. Arroyo, for appellant.

Mottern & Van Gelderen, Leon A. Van Gelderen, for appellee.

Judgment reversed.

Johnson and Ruffin, JJ., concur.


author: Ruffin, Judge.

text:
    A96A0428.
    WEAVER v. HENRY et al.
    (473 SE2d 495)
   Ruffin, Judge.

William Henry owns property bounded on one side by property owned by six defendants in this case (collectively "Jonas”) and on the other side by property owned by Linda Weaver. There are only two roads accessing Henry’s property; one traverses the Jonas’ property ("Jonas road”) and the other traverses Weaver’s property (“Weaver road”). Henry and his predecessors in title have exclusively used the Jonas road to gain access to his property. When Jonas erected a gate across the Jonas road and prohibited Henry from using the road, Henry sued for injunctive relief. Realizing Henry’s only alternative was to use the Weaver road, Weaver intervened, alleging that Henry had no right to use the Weaver road. The matter was tried before a jury, and at the close of Henry’s evidence, the court directed a verdict for Jonas, thereby allowing Jonas to keep Henry from using the Jonas road. The court then dismissed the jury and, after hearing further evidence, ruled that Henry had an easement over the Weaver road. Weaver appealed, and for reasons which follow, we affirm in part and reverse in part.

The record shows that Henry acquired his property in 1987 under the will of his mother, Nora Henry. In the spring of 1990, Jonas erected a gate across the Jonas road. Peggy Jonas notified Henry that she was installing the gate to eliminate unauthorized travelers. Jonas stated in a letter to Henry that "[k]eys will be given to you for use by your immediate family.” Problems arose shortly thereafter when Jonas prohibited Henry from performing maintenance on the road. In a letter dated November 2, 1992, Jonas informed Henry that he was permitted to use the road for agricultural purposes only and that he had no authority to make repairs. On January 2, 1993, Jonas informed Henry that they were revoking his right to use the road because he used it for unauthorized purposes.

Henry, who is 68 years old, testified that he has been familiar with the Jonas road his entire life and that, until Jonas erected the gate, nobody controlled who traveled it. He further testified that the condition and size of the Weaver road does not permit him to drive his farm equipment along that road. Another witness, Lillian Patterson, testified that she lived on the Jonas road from the time she was born in 1915 until she moved away in 1970. Patterson stated that in the early years, people traveled freely along the road, hauling items in their wagons. She further testified that during the time she lived on the road, nobody controlled who traveled it and it was never blocked.

1. We note initially that although this case primarily involves the issue of whether Henry has acquired a right of way over his neighbors’ land, the Supreme Court has held that jurisdiction of such cases lies in this Court. See Stutts v. Moore, 218 Ga. App. 624, 625 (1) (463 SE2d 30) (1995). “It appears this case is properly characterized as a petition for removal of an obstruction of a private way, since it essentially began as such in the . . . superior court.” Id.

2. With regard to the merits, Weaver asserts that the trial court erred in granting Jonas a directed verdict. Although Weaver points to several facts as support for her assertion, she does not state the theory under which she contends Henry is entitled to use the Jonas road. However, from the facts presented we assume that Weaver contends Henry had a prescriptive easement over the road.

“A directed verdict is authorized when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Citations and punctuation omitted.) Bruno v. Evans, 200 Ga. App. 437, 439 (3) (408 SE2d 458) (1991). If the plaintiff is opposing the motion, the evidence must be construed in his favor. Id. The directed verdict should be granted if the “ 'plaintiff simply fails to prove his case.’ [Cit.]” Id. In this case, a directed verdict was proper because Henry did not prove he had a prescriptive easement.

“To sustain a suit to enjoin the obstruction of an alleged private way, the right to which is based upon prescription by seven years user, [sic] it is essential that the applicant show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same 20 feet originally appropriated, but that he has kept it open and in repair during such period. If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover.” (Citations and punctuation omitted.) Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993). The purpose of the repair requirement is to put the owner on notice that the use is adverse. Id. at 361. Mere knowledge by the owner and his or her acquiescence in the use is insufficient to establish prescription. Id. at 362.

There was no evidence in this case that Henry or his predecessors maintained the road for the required period of time. To the contrary, when Henry attempted to perform maintenance on the road, Jonas informed him that such work was prohibited. Because Henry failed to present any evidence concerning a necessary element of a prescriptive easement over the Jonas road, the trial court did not err in directing a verdict for Jonas. See id.; Bruno, supra.

3. Weaver asserts the trial court erred in ruling that Henry was entitled to use the Weaver road. It is not disputed that Henry’s predecessor in title, Nora Henry, possessed an easement along the Weaver road. Nora Henry obtained the easement, along with the Henry property, under the will of W. T. Terry. W. T. Terry owned both the Henry and Weaver parcels, and disposed of them under his will. Terry’s will provided that Nora Henry could use the Weaver road “as long as she owns the [Henry] property, but the right will be denied if she disposes of said property.”

Nora Henry devised the property to William Henry, which he acquired by executor’s deed in 1987. At that time, there was a large pile of dirt on the Weaver road at the property line blocking access to Weaver’s property. According to Henry’s son, the dirt pile had been there since approximately 1978 or 1979. When he acquired the property, Henry erected a blockade across the road where the dirt pile was located to keep out trespassers: he “ran some big dozer blades into the pile of dirt[,] . . . strung a big piece of barbed wire over that[,]” and put up “no trespassing” signs.

(a) Weaver contends that the trial court erred in ruling that Nora Henry’s devise of the property to William Henry did not terminate the easement according to the terms of W. T. Terry’s will. We agree.

“In the construction of instruments creating easements, the court must ascertain and give effect to the intention of the parties. [Cits.]” Kiser v. Warner Robins Air Park Estates, 237 Ga. 385, 386 (1) (228 SE2d 795) (1976). If the instrument limits the duration of the easement, the court should likewise give effect to the intention of the parties in construing the limitation. See id.; see also Pindar, Ga. Real Estate Law and Procedure, § 8-28 (4th ed. 1993). Here, the intent of the grantor, W. T. Terry, is clear. Nora Henry could use the Weaver Road only until such time as she disposed of the property. There was simply no provision for perpetuating the easement beyond Nora Henry’s ownership of the dominant estate. Accordingly, the trial court erred in holding that Henry possessed a right of way along the Weaver road under Terry’s will.

(b) Moreover, the record shows that Henry abandoned any rights he may have possessed to use the Weaver road. Where an easement of way has been acquired by grant, it may be extinguished by evidence of nonuse, coupled with clear, unequivocal, and decisive evidence of the intent to abandon the easement. See Hardigree v. Hardigree, 244 Ga. 830 (2) (262 SE2d 127) (1979). The evidence in this case met such standard. Not only did Henry never use the Weaver road, but his actions in erecting the barricade made clear that he did not intend to use the road. See Stewart County v. Holloway, 69 Ga. App. 344, 349 (25 SE2d 315) (1943) (dismantling bridge showed easement was abandoned).

Decided June 3, 1996

Reconsideration denied July 8, 1996.

Joseph E. Willard, Jr., for appellant.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, Little & Adams, Robert B. Adams, for appellees.

4. In light of our decision that the trial court erred by recognizing a right of way over Weaver’s property, it is unnecessary to address her remaining enumeration of error concerning the trial court’s dismissal of the jury.

5. Finally, we note that although this decision apparently leaves Henry without access to his property, such landlocked owners are not without remedy. See Pindar, supra at § 8-20. Although Henry referred to such ways of necessity in his brief, the issue was not properly before this Court.

Judgment affirmed in part and reversed in part.

McMurray, P. J, concurs. Johnson, J., concurs in the judgment only.


author: Johnson, Judge.

text:
    A96A0487, A96A0488.
    HILLSIDE ORCHARD FARMS, INC. v. MURPHY et al.; and vice versa.
    (473 SE2d 181)
   Johnson, Judge.

This personal injury action arising out of a motor vehicle collision was tried before a jury in the Superior Court of Rabun County. The jury returned a verdict in favor of Jean and Wade Murphy (“Murphy”) in the amount of $165,000, which was reduced by the trial court by $2,500 based on Murphy’s no-fault insurance coverage. Hillside Orchard Farms, Inc., appeals from the judgment entered on the jury’s verdict. Murphy filed a cross-appeal. For the reasons set out below, we affirm the judgment in Case No. A96A0487. The cross-appeal, Case No. A96A0488, is rendered moot and is dismissed, as the cross-appellants have indicated in their brief their preference for affirmance in the main appeal over consideration of the enumerations asserted in their cross-appeal.

As to all key issues regarding liability, the evidence before the jury was hotly contested and in some instances diametrically opposed. On appeal, however, the evidence must be construed to uphold the verdict even where the evidence is in conflict. Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996). Viewed in this light, the evidence shows the following: As Jose Barcenas transported a load of apples for his employer, Hillside Orchard Farms, the truck he was driving suffered some type of mechanical malfunction and stalled at the top of a hill. Barcenas’ attempts to restart the engine failed, so he allowed the truck to coast down the hill in an effort to reach a parking area at the bottom. The truck did not reach this parking area. Instead, it came to rest blocking about two-thirds of the northbound lane of the narrow, two-lane road upon which Barcenas was traveling. After further attempts to restart the truck failed, Barcenas and the two co-workers accompanying him left it in the roadway and went for assistance. The truck’s mechanical breakdown was witnessed by Jody and James Taylor, who were not parties to this case. James Taylor testified that when they drove past the truck soon after it stopped, there were no flashing lights, no flagmen, and no warning devices to warn approaching motorists of the hazard awaiting them just over the hill. Jody Taylor testified that approximately one to two hours passed between the time they saw the truck stop and the time of the accident.

Barcenas’ supervisor, Robert Mitcham, testified that he waited for the truck at an unloading point nearby. When it did not arrive, he drove back toward the departure point to look for the truck. Mitcham found the truck blocking the roadway and pulled his pickup truck in front of the produce truck in case the use of jumper cables was required to restart it. Mitcham climbed into the produce truck, switched the fuel system over to one of its reserve fuel tanks, and tried to start the engine. When the engine would not start, he got out and attempted to employ jumper cables in his efforts. Although Mitcham testified to the contrary, there was evidence that he did not turn on the truck’s lights or its warning lights or post flagmen to warn approaching motorists. Mitcham was at the site of the disabled truck for at least 30 minutes when Murphy’s car came over the hill. It had become dark, and the only lights Murphy saw were on a vehicle, driven by Jody Taylor, traveling in the opposite direction. She looked to the edge of the road to make sure that she remained in her lane, but also looked straight ahead. Suddenly, she saw what appeared to be “a black wall” immediately in front of her. There was no time to brake and she struck what turned out to be the rear of the Hillside Orchard produce truck. She was badly injured in the collision.

Murphy and her husband filed a negligence action against Barcenas, Mitcham, and Hillside, claiming that Barcenas was negligent in leaving the truck in the road without hazard warnings or lights, Mitcham was negligent in failing to remove the truck or warn drivers of the danger, and the company was liable based on the theory of respondeat superior. No other persons were named as defendants in the action. At trial, the parties stipulated that: “The big truck and the little truck belong to and are the property of Hillside Orchard Farms[,] were being operated for Hillside Orchard Farms[,] and Jose Miguel Barcenas and Robert Mitcham were engaged in duties for Hillside Orchard Farms.”

At the close of Murphy’s case, the trial court partially granted Mitcham’s motion for directed verdict. In so ruling, the trial court attempted to make it clear to the parties and their attorneys that Hillside could still be liable to the extent Mitcham was acting on behalf of Hillside. The jury was never informed of the ruling.

Hillside moved for a directed verdict as to its liability for the acts or omissions of any Hillside employees not named in the suit, arguing that Murphy presented no evidence that any other agents, servants or employees of Hillside, besides Barcenas and Mitcham, were negligent. While the trial court questioned the necessity of such a ruling, it ultimately granted Hillside’s motion. The rulings left as defendants Barcenas, Mitcham only in his capacity as Hillside’s agent, and Hillside. A special verdict form, which did not include Mitcham’s name in the area where the verdict was to be filled in by the jury but did include Mitcham’s name in the style section, was submitted to the jury allowing them to find either in favor of both Barcenas and Hillside, or against both Barcenas and Hillside. The jury indicated on the form that they found in favor of the Murphys and against Hillside, but crossed out Barcenas’ name and wrote in “excluding Jose Miguel Barcenas.” They made no mention of Mitcham’s liability. Hillside argued to the trial court that the verdict was inconsistent, and requested that the trial court send the jury back for clarification. The trial court declined to do so and entered judgment on the verdict. Hillside appeals following the denial of its motions for judgment n.o.v., new trial, and to amend judgment.

Case No. A96A0487

1. In the main appeal, Hillside argues that the verdict was inconsistent and deficient because all individuals from whom Hillside’s negligence could arise were relieved of liability, either by the trial court’s direction of a verdict for Mitcham individually and for all other employees not named in the complaint, or by the jury’s verdict in favor of Barcenas. For the following reasons, we disagree.

“The doctrine of respondeat superior holds the master responsible for the negligent act of his servant, committed while the servant is acting within the general scope of his employment and engaged in his master’s business. The negligence of the master in such a case is entirely derivative from the servant’s negligence.” (Citations, punctuation and emphasis omitted.) Brown v. Who’s Three, 217 Ga. App. 131, 132 (1) (457 SE2d 186) (1995). Therefore, where a lawsuit is brought against the master and a servant based on the doctrine of respondeat superior, a verdict against the master but releasing the servant may be set aside where the pleadings and evidence do not allege or show any independent negligence by the master. Colonial Stores v. Fishel, 160 Ga. App. 739, 742 (1) (288 SE2d 21) (1981). Contrary to Murphy’s contention on appeal, our thorough review of the record reveals that there was no showing of independent negligence by Hillside; thus, our analysis must focus on the doctrine of respondeat superior.

There is no question that Hillside could not be held vicariously liable based on Barcenas’ acts or omissions, because Barcenas was expressly released from liability by the jury. Likewise, the acts of any other unnamed Hillside employees could not form the basis of Hillside’s liability, because, as the trial court found in directing a verdict to Hillside on this issue, there was no evidence showing that any such persons were negligent. As to Barcenas and all employees except Mitcham, therefore, the issue of whether Hillside could be vicariously liable for their acts after the court’s directed and the jury’s verdict is easily answered in the negative.

What is not so obvious at first glance, however, is whether Hillside could be held liable for Mitcham’s acts or omissions after the trial court directed a verdict in his favor. In moving for a directed verdict, Mitcham argued that as a mere non-driver who arrived as a rescuer, he owed no duty of care to Murphy. After entertaining a lengthy debate between the parties on this point, the trial court granted Mitcham’s motion. It is clear from the record that in doing so the trial court attempted to distinguish between Mitcham’s duty of care as a mere passerby unconnected to Hillside, and his duties as a servant of Hillside. Indeed, the trial court ruled that Mitcham could not be held personally liable for his acts or omissions, but left him in the case in his role as Hillside’s agent or servant.

We note in passing that the trial court erred in making such a distinction. Even if Mitcham was merely a passerby with no relation to the disabled truck or Hillside, once he stopped to render aid, a duty of care arose. The Good Samaritan Doctrine provides that “one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Citation and punctuation omitted.) Finley v. Lehman, 218 Ga. App. 789, 790 (1) (463 SE2d 709) (1995). It is undisputed that Mitcham did stop and attempt to move the truck from the roadway, and according to his own testimony, he also tried to warn other motorists by using emergency lights on the truck and assigning two co-workers to act as flagmen. Once he stopped to render assistance, he was required to exercise reasonable care in doing so. Therefore, the trial court erred in ruling that Mitcham could not be held liable in his individual capacity. However, inasmuch as the jury was not informed that a verdict was partially directed in Mitcham’s favor, the jury could consider his acts in reaching its verdict. Therefore, we find no harm in the partial direction of a verdict for Mitcham.

The real issue before us concerns the status of the case as to Hillside after the trial court’s erroneous ruling as to Mitcham in his individual capacity. For the following reasons, we conclude that the status of the case was the same as it would have been had Hillside been sued on the basis of Mitcham’s negligence without Mitcham being sued.

Even in a case based on the principle of respondeat superior, a master may be sued alone. Giles v. Smith, 80 Ga. App. 540, 543 (1) (j) (56 SE2d 860) (1949). Thus, it was not necessary to include Mitcham as a party. See Fambro v. Sparks, 86 Ga. App. 726, 733 (1) (72 SE2d 473) (1952), overruled on other grounds, Allen Kane’s Major Dodge, 243 Ga. 776, 782 (257 SE2d 186) (1979). Accordingly, if the jury had before it evidence that Mitcham was negligent and that his negligence was the sole or a contributing proximate cause of Murphy’s injury, even if the jury did not have Mitcham before it as a party, recovery could still be had against Hillside. In its ruling on Mitcham’s motion for directed verdict, it is clear that the trial court intended that the jury be allowed to consider Mitcham’s acts and omissions in determining whether Hillside was liable. But for the trial court’s erroneous ruling on Mitcham’s motion for directed verdiet, he would have remained a party.

The evidence presented at trial authorized a finding by the jury that Mitcham was negligent and that his negligence was the proximate cause of Murphy’s injuries. They were authorized to find that in the thirty-minute to two-hour time period that he was with the truck, it was within his power to move it or warn others of the danger. Yet there was no evidence that he called anyone to move the truck, or that he attempted to have the truck pushed further down the hill into the nearby parking area. The jury was also authorized to question why Mitcham did not call police or use lights, flares, or flagmen to alert motorists to the hazard. What care was due in the situation and whether it was exercised were for the jury. See generally Cannon v. Lardner, 185 Ga. App. 194, 195 (363 SE2d 574) (1987). Inasmuch as there was evidence from which the jury could find Mitcham negligent, and that negligence could be imputed to Hillside, there is no inconsistency in the verdict. The result here comports with the well-settled principle that a verdict must be construed in the light most favorable to upholding the jury verdict. Dublin Pub v. Mut. Life Ins. Co., 191 Ga. App. 677, 679 (3) (382 SE2d 654) (1989).

2. Hillside argues that the trial court erred in denying its request that the verdict be clarified when the jury returned a verdict absolving Barcenas of responsibility but finding Hillside liable. We note that the trial judge has a duty not to receive an indefinite, imperfect, or ambiguous verdict, and where an inconsistent or void verdict is returned by the jury, the trial judge should refuse to receive it and require the jury to return for further deliberations. Zurich American Ins. Co. &c. v. Bruce, 193 Ga. App. 804, 805 (1) (388 SE2d 923) (1989). However, under the peculiar circumstances of this case, as discussed above, it was not necessary for the jury to find Barcenas liable in order to find Hillside liable. Thus, any apparent inconsistency in the form of the verdict was not real, and further deliberations were unnecessary in this particular case.

3. Hillside contends that the trial court erred in recharging the jury that they did not have to find all defendants negligent for a verdict to be reached. The court was correct in its statement because, as stated above, the jury was authorized to find Hillside liable based on Mitcham’s acts. In the colloquy between the court and counsel for both parties, including Hillside’s counsel on appeal, the trial court made it clear that the posture of the case was that the jury could find Hillside liable based on the acts of Mitcham or Barcenas or both. We find no error.

4. Hillside’s argument that the trial court erred in refusing to give its requested charge that one cannot be found negligent for failing to do that which is not within his power to accomplish is without merit. Even if the charge had been given, it is unlikely it would have resulted in his release from liability. There is no evidence that Mitcham did not have the power to accomplish certain acts, e.g., to warn motorists of the danger. In fact, the evidence tends to prove the contrary. We find no harm in the trial court’s failure to give the charge. See Mattarochia v. State, 200 Ga. App. 681, 684 (5) (c) (409 SE2d 546) (1991).

Decided June 18, 1996

Reconsideration denied July 8, 1996

Husby, Myers & Stroberg, William A. Myers, for appellant.

R. Bruce Russell, for appellees.

5. Our review of the record leads us to conclude that the verdict is not contrary to law or evidence as argued.

Case No. A96A0488

The cross-appeal is rendered moot by our affirmance of the judgment in the main appeal. It is therefore dismissed as contemplated by cross-appellants.

Judgment in Case No. A96A0487 affirmed. Appeal in Case No. A96A0488 dismissed.

McMurray, P. J, and Ruffin, J., concur.

       The confusion over this ruling will be discussed later in this opinion. The obvious intent and effect of the ruling was to leave open the possibility that the jury could find Hillside liable for Mitcham’s acts and omissions committed as its agent and employee, but that Mitcham individually owed no duty to Murphy which could be the basis for any recovery against Mitcham personally.


text:
    A96A0492.
    BIVEN SOFTWARE, INC. et al. v. NEWMAN.
    (473 SE2d 527)
   Ruffin, Judge.

Emily Newman sued Biven Software, Inc., its successors FSH Associates, Inc. and HBO & Company, Biven, Inc., Biven’s founder and chief executive officer, Paul Harrison, Biven’s President, David Engert, and its office manager, Elizabeth Marino (collectively “Biven”) for malicious prosecution, intentional infliction of emotional distress, and breach of contract. Newman alleged the tortious conduct and contract breach occurred in connection with Biven’s termination of her employment. The jury returned a verdict in favor of Newman on her emotional distress and contract claims and in favor of Biven on her malicious prosecution claim. Biven appeals the trial court’s denial of its motion for directed verdict on Newman’s intentional infliction of emotional distress and contract claims. We reverse.

“In determining whether the trial court erred by denying [Biven’s] motion for a directed verdict this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict.” (Punctuation omitted.) Evans v. Willis, 212 Ga. App. 335, 337 (1) (441 SE2d 770) (1994). A directed verdict is proper only where “ ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.’ [Cit.]” Id.

Viewed in this light, the evidence reveals that Newman worked as a contract employee in an administrative position at Biven from April 1991 to October 1992. At the time, Biven was just beginning operations. When Biven offered Newman the position, Harrison purportedly promised that although he could not presently afford to pay her the $35,000 annual salary she was making in her previous employment, she would be placed on payroll as a full-time employee at an annual salary of $35,000 “later,” further “down the line,” “when we get more money.” Newman testified that Biven promised that as a full-time employee, she would be entitled to paid vacation, overtime, and other employee benefits, including corporate stock. Biven never gave Newman a date when she would be made a full-time employee. Biven’s then president and chief operating officer, David Engert, subsequently fired Newman for absenteeism, inability to complete projects, and rudeness to customers and staff. At the time of her termination, Newman was permitted to retrieve personal information from her computer.

On December 19, 1992, Engert filed criminal charges against Newman, alleging she had destroyed valuable computer files on the day of her discharge when she was permitted to take personal information from the computer. After a hearing, the magistrate found probable cause to issue an arrest warrant for the crime of computer trespass. Biven agreed to accept $450 in restitution rather than prosecute further. Because Newman paid the restitution, the magistrate did not issue the arrest warrant and dismissed the charge.

1. Biven argues that the trial court erred in denying its motion for directed verdict on the intentional infliction of emotional distress claim because Newman presented insufficient proof of extreme or outrageous conduct. We agree.

“Four elements must be present to support a claim of intentional infliction of emotional distress: (1) The conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. [Cit.]” Johnson v. Savannah College &c., 218 Ga. App. 66, 67 (460 SE2d 308) (1995). Comments made within the context of one’s employment may be horrifying or traumatizing, but are generally considered “a common vicissitude of ordinary life.” Peoples v. Guthrie, 199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991). Liability for intentional infliction of emotional distress “ ‘has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ [Cits.]” Yarbrough v. SAS Systems, 204 Ga. App. 428, 429 (3) (419 SE2d 507) (1992). The issue of whether the allegations rise to the requisite level of outrageousness is a question of law for the trial court. Johnson, supra.

The evidence of intentional infliction of emotional distress in this case fails to rise to the requisite level of outrageousness. Viewed in a light to support the verdict, the evidence at trial supporting Newman’s claim showed that Engert spoke to her in a rude tone and condescending manner, belittled her, was critical of her work, and imposed unreasonable deadlines. Newman also testified that Marino was jealous and tried to establish her control over the office. Newman asserted that she was under great stress at Biven because she worked long hours and had to leave a number where she could be reached at all times. In addition, she claimed that Harrison showed a disregard for their relationship by his absence when Engert discharged her and by stating she did not have “any f. . .ing rights” when she demanded additional compensation after her termination. She further asserted that her discharge after working so hard and the initiation of criminal proceedings against her caused her emotional distress.

Biven’s treatment of Newman while she was still employed did not constitute outrageous conduct. “Despite [Newman’s] arguments to the contrary, it is clear that the language used by [Engert and Harrison] consisted either of expressions of dissatisfaction with [her] job performance or suggestions that if [she] did not improve [her] job performance [she] might be terminated. . . .” Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772 (324 SE2d 593) (1984). These allegations, considered individually or collectively, are insufficient to support a claim that Biven’s conduct was extreme and outrageous. Id. at 773. The incidents which occurred at Biven during the course of Newman’s employment cannot reasonably be characterized as atrocious or “ ‘utterly intolerable in a civilized community.’ ” Yarbrough, supra at 429.

Neither do Biven’s actions in terminating Newman constitute outrageous conduct. The record shows, and Newman does not contest, that at the time she was terminated she “was an at-will employee who could be terminated with or without cause and without regard to the motives of [her] employer. [Cit.] Accordingly, ‘that [Biven] discharged [Newman] for whatever reason, without more, gives rise to no claim for the intentional infliction of emotional distress.’ [Cit.]” Phillips v. Pacific & Southern Co., 215 Ga. App. 513, 515 (451 SE2d 100) (1994).

Furthermore, Biven’s criminal prosecution of Newman cannot provide a basis for her claim. The magistrate’s finding of probable cause forecloses Newman’s use of the criminal prosecution as an element of a cause of action. See OCGA §§ 51-7-40, 51-7-44; Wal-Mart Stores v. Blackford, 264 Ga. 612 (449 SE2d 293) (1994); Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605 (2) (436 SE2d 708) (1993). Furthermore, because Newman settled Biven’s claim concerning the computer files, she is estopped from denying that Biven had probable cause to file the charges. Commercial Plastics &c. Corp. v. Molen, 182 Ga. App. 202, 204 (1) (355 SE2d 86) (1987). Because Biven had probable cause, its actions in filing the charges were not outrageous.

Finally, although Newman relies heavily on her allegations that Biven threatened retaliation if she claimed benefits and fabricated evidence in the criminal prosecution, she cites no evidence in the record to support these allegations. Absent any such citation, Newman is deemed to consent to a decision based upon Biven’s statement of facts. Court of Appeals Rule 27 (b) (1). See also Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733-734 (8) (389 SE2d 251) (1989) (it is not the court’s function to cull the record on behalf of a party).

We thus conclude that the evidence in this case was insufficient to support Newman’s claim for intentional infliction of emotional distress. Evans, supra. Accordingly, the trial court erred in denying Biven’s motion for directed verdict on this claim.

2. Biven asserts that the trial court erred in denying its motion for a directed verdict on Newman’s claim that Biven breached the employment agreement by refusing to make her a full-time employee and pay her the benefits associated with that status. Because the promises made to Newman were merely executory obligations which were unenforceable as part of her terminable-at-will contract, we agree that the trial court should have directed a verdict.

As we stated in Division 1, the evidence at trial showed that Newman was an at-will employee. There is no evidence that the contract contained any definite term of employment, and under Georgia law such a contract “is terminable at the will of either party. [Cits.]” Wheeling v. Ring Radio Co., 213 Ga. App. 210, 211 (444 SE2d 144) (1994). “In a terminable-at-will employment contract the original terms for compensation are enforceable for that work actually performed under the contract. However, a promise of future change in compensation is unenforceable since neither party is bound to continue performance under the contract at all.” E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 361 (6) (359 SE2d 148) (1987).

Furthermore, the terms which created the condition precedent to Biven making Newman a full-time employee were too vague and indefinite to be enforceable. The only evidence supporting Newman’s claim for additional compensation was her testimony that Biven promised to make her a full-time employee “later,” further “down the line,” “when we get more money.” Newman has failed to cite any evidence explaining what these conditions mean or showing the intention of the parties. In the absence of such evidence “we can see no basis upon which to place a reasonable, commonsense conclusion. The indefinite and uncertain condition nullified the whole contract.” (Citation and punctuation omitted.) Id. at 362. Accordingly, the trial court erred in failing to grant Biven’s motion for directed verdict on this claim.

Decided June 17, 1996

Reconsideration denied July 8, 1996

Kilpatrick & Cody, Thomas C. Harney, Michael E. Brooks, for appellants.

Bruce A. Hagen, for appellee.

Emilie S. Newman, pro se.

Judgment reversed.

McMurray, P. J, and Johnson, J, concur.


author: Judge Harold R. Banke.

text:
    A96A1146.
    PRYOR v. PHILLIPS.
    (473 SE2d 535)
   Judge Harold R. Banke.

Jeannette Pryor sued Stacey Phillips after Phillips’ truck collided with the back of a pickup in which Pryor was a passenger. A jury found in Phillips’ favor, and she appeals from the judgment entered on that verdict. Held:

1. Pryor was not entitled to a directed verdict on Phillips’ liability. “A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9-11-50 (a). Where there is ‘any evidence’ or ‘some evidence’ to support the non-movant’s claims, a jury issue is created and a directed verdict is improper. [Cit.]” Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592 (4) (452 SE2d 159) (1994).

Construed in favor of the verdict, the evidence showed Phillips was a volunteer fireman responding to an emergency call. He was traveling 45 mph on a city street with his red lights flashing and his siren activated. Phillips looked away for a second; when he looked back, the driver of the vehicle in which Pryor was riding had suddenly stopped in the middle of the lane. Phillips applied his brakes but slid on the wet pavement into the Pryor truck. Pryor’s driver, Mr. Johnson, told the investigating officer he stopped because he heard the sirens. The officer testified that Phillips may have hydroplaned on the wet road. Although Phillips received a traffic citation and pleaded guilty to it, he explained that he paid the ticket only because he did not understand its significance and had no time to contest it. See Peacock v. Strickland, 198 Ga. App. 406 (1) (401 SE2d 601) (1991) (guilty plea not conclusive of defendant’s negligence). These facts created a jury issue as to Phillips’ liability. See James v. Tyler, 215 Ga. App. 479, 480 (1) (451 SE2d 506) (1994).

2. In her enumerations of error nos. (C) (1), (2), (3), (5), (6), (7), and (8), Pryor correctly contends the trial court erred by charging the jury that it could find Phillips to be operating an “authorized emergency vehicle” privileged to disregard maximum speed limits and other traffic laws as provided in OCGA § 40-6-6. “The burden of proving the affirmative defense that the defendant is entitled to statutory exemptions from traffic regulations rests upon [Phillips] ([cit.]), and in order that [Phillips] may claim exemptions applicable to emergency vehicles the conditions of the emergency-vehicle statute must be met. [Cit.]” City of Macon v. Smith, 117 Ga. App. 363, 368 (1) (160 SE2d 622) (1968). The statutory definition of “authorized emergency vehicle” includes a “certified private vehicle belonging to a volunteer fireman.” (Emphasis supplied.) OCGA § 40-1-1 (5). But Phillips admitted he was not “certified” and had not complied with the certification process described in OCGA § 40-8-92 (b) and its applicable regulations concerning certification for volunteer firemen, Ga. Comp. Rules & Regs. §§ 570-11-.03 and 570-11-,05. This error requires reversal for a new trial. Because other issues Pryor raises in this appeal may affect the retrial of the case, we address those enumerations as well.

3. In enumeration of error (C) (4), Pryor complains of the trial court’s refusal to give a requested charge which would allow the jury to find Phillips’ use of a siren constituted negligence per se. She bases this argument on OCGA § 40-8-70 (b), which allows the use of sirens only on authorized emergency vehicles. Because Phillips’ truck was not an “authorized emergency vehicle,” she reasons, his use of the siren violated this law. See OCGA § 40-8-94. But we find no evidence indicating any causal relationship between Phillips’ failure to obtain this permit and the collision, and Pryor points to none. The trial court did not err in refusing these instructions. See Fountain v. Smith, 103 Ga. App. 192, 196 (3) (118 SE2d 852) (1961) (no causal relationship between failure to mark police car and plaintiff’s accident).

4. The trial court did not err by admitting a diagram prepared by the investigating police officer as part of his report. Pryor objected to this diagram on the ground that under OCGA § 40-9-41, accident reports submitted to the Department of Public Safety may not be referred to or admitted in a civil damages trial. But we find no authority showing this statute, which is part of legislation intended to ensure that drivers take responsibility for accidents, applies here. Under these circumstances, the accident report was not one “filed with the [Department [of Public Safety].” OCGA § 40-9-41. An accident report may, in certain instances, be admitted as a business record. Fine v. APAC-Ga., 192 Ga. App. 895, 897 (1) (386 SE2d 692) (1989). Such instances may include those where a police officer testifies after having refreshed his memory of an accident investigation using the report he made of that investigation.

Decided June 20, 1996

Reconsideration denied July 8, 1996

H. Lehman Franklin, Jr., for appellant.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellee.

Judgment reversed and remanded.

McMurray, P. J., and Ruffin, J., concur.


text:
    A96A0871.
    G. H. BASS & COMPANY v. FULTON COUNTY BOARD OF TAX ASSESSORS.
    (473 SE2d 253)
   Johnson, Judge.

Claiming that the Fulton County Board of Tax Assessors wrongly denied its application for a freeport exemption from personal property taxation, G. H. Bass & Company appealed to the Fulton County Board of Equalization (“the County”). When the County affirmed the Board of Tax Assessors’ decision, G. H. Bass sought judicial review in superior court. G. H. Bass moved for summary judgment and the County filed a cross-motion for summary judgment. The trial court denied G. H. Bass’ motion and granted the County’s motion, holding that G. H. Bass’ application for the exemption was untimely. G. H. Bass appeals.

1. G. H. Bass argues that the trial court erred in granting summary judgment to the County when the County admitted that it was entitled to the exemption. G. H. Bass points to its Request for Admission No. 1, which states: “The Plaintiff is entitled to a personal property/inventory/freeport exemption of $23,241,497.00 for the 1994 tax year.” The County did not respond to the request for admissions. Therefore, G. H. Bass claims, the statement was deemed admitted. See OCGA § 9-11-36 (a) (2). We disagree. “[A request for admissions] must deal with matters essentially factual, not opinionative or conclusions of law. . . .” (Citation omitted.) A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827, 831 (2) (b) (209 SE2d 272) (1974). The statement at issue was not factual, but conclusory, and essentially dealt with the ultimate legal issue in the case. That the County failed to answer a request for admission of law is of no consequence. See Tandy Computer Leasing v. Smith, 186 Ga. App. 101, 103 (366 SE2d 417) (1988). This enumeration is without merit.

Decided July 8, 1996

2. It is undisputed that G. H. Bass failed to apply for the 1994 exemption by the application deadline. See OCGA §§ 48-5-48.1; 48-5-18 (i). However, in its second enumeration of error G. H. Bass argues that the 1994 freeport exemption should have been allowed because it was allowed the freeport exemption in the preceding tax year. In support of this argument, G. H. Bass cites OCGA § 48-5-20 (a), which provides in part that a taxpayer who returned taxes for the preceding tax year and fails to return his property for taxation for the current year, is deemed to have returned for taxation the same property as was returned in the preceding tax year and to have claimed the same homestead exemption and personal property exemption as allowed in the preceding year. We do not agree that OCGA § 48-5-20 is controlling under the facts of this case.

OCGA § 48-5-48.1, unlike OCGA § 48-5-20, specifically sets forth the freeport exemption application process. It provides that such an application must be filed by a certain date and that “failure to file properly the application and schedule shall constitute a waiver of the exemption ... for that year.” OCGA § 48-5-48.1 (c). “[A] specific statute governs over a more general statute where they are in conflict. [Cit.]” Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592 (2) (436 SE2d 219) (1993). Because OCGA § 48-5-48.1 is more specific on the issue of failure to file freeport exemption applications, it controls. Further, OCGA § 48-5-48.1 was enacted more recently than the statute upon which G. H. Bass relies. The legislature is presumed to enact statutes with full knowledge of the existing law. Henry v. Wild Pines Apts., 177 Ga. App. 576 (340 SE2d 233) (1986). Therefore, we presume that the legislature knew that OCGA § 48-5-20 allowed exemptions claimed in previous years without application, but decided to change the law to require timely filing in order to obtain freeport exemptions. The trial court properly resolved the issue in favor of the more specific, more recently enacted statute.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellant.

W. Roy Mays III, for appellee.


author: Blackburn, Judge.

text:
    A96A0944.
    THOMAS v. THE STATE.
    (473 SE2d 251)
   Blackburn, Judge.

Archie Thomas appeals his convictions of possession of cocaine, possession of less than one ounce of marijuana, and two counts of selling cocaine.

1. In his first enumeration of error, Thomas contends the trial court erred in allowing two witnesses to testify during the State’s rebuttal who were not listed on the State’s witness list prior to trial. “However, ‘it is well settled that calling an unlisted witness in rebuttal is not error and does not violate OCGA § 17-7-110.’ (Citations and punctuation omitted.) Snider v. State, 200 Ga. App. 12, 15 (7) (406 SE2d 542) (1991).” Caver v. State, 215 Ga. App. 711, 712-713 (452 SE2d 515) (1994). In Caver, we faced a situation similar to the present case in which it was apparent that the State was aware of the witness prior to trial but did not put the witness on the witness list provided to the defendant. Despite the State’s prior knowledge of the witness and lack of notification to the defendant, we allowed the State to use the witness during its rebuttal. Id. We are bound by this precedent; therefore, the trial court did not err in allowing the witnesses to testify during the State’s rebuttal.

2. In his second enumeration of error, Thomas contends the trial court erred by allowing transcripts of audiotapes to be published and distributed to the jury. Thomas asserts that the transcripts contained non-qualified testimonial evidence in that the speakers’ names were identified on the transcripts but were not identified on the audiotape.

Nelson Paulk, a drug investigator with the Irwin County Sheriff’s Department, testified that the transcripts contained additions to identify the participants to the recorded conversation and that he himself had made the identification. Paulk further testified that he was familiar with the voices of the two individuals on the audiotape and that he based his identification of their voices on his personal recollection. Paulk testified that he had heard Thomas’ voice on previous occasions and that he had known the informant for approximately 20 years.

“Although voice identification testimony is generally considered to be direct evidence, Georgia courts have construed such testimony to be opinion evidence, which, of course, is inadmissible unless the witness discloses the basis for his opinion. We also note that a witness may identify a defendant by voice recognition even though his knowledge of the accused’s voice was acquired after the event to which the witness testified. And the probative value to be accorded such evidence is a matter for the jury’s determination.” (Citations and punctuation omitted.) Shepherd v. State, 173 Ga. App. 499, 500-501 (326 SE2d 596) (1985). Based on Paulk’s testimony regarding his identification of the voices, Thomas’ objection addressed itself to the weight accorded the evidence and not its admissibility. Therefore, we find that this enumeration of error is without merit.

Decided July 8, 1996.

Benjamin Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, Holli G. Martin, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       It is noted that the transcripts of the audiotapes were used only while the tapes were played for the jury, were not admitted into evidence, and did not go with the jury during its deliberations.


text:
    A96A0971.
    GARCIA v. CHARLES EVANS BMW, INC.
    (473 SE2d 588)
   Judge Harold R. Banke.

Gilbert Garcia sued Charles Evans BMW, Inc. (“Evans”) alleging fraud and violations of the Fair Business Practices Act. The trial court granted Evans’ motion for summary judgment and Garcia appeals.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that Garcia responded to Evans’ newspaper advertisement offering to lease a white 1994 BMW 318iS for two years at $219 per month plus tax. The parties entered into negotiations after Garcia related that he wanted a black car, and none was available with the limited number of options offered in the advertisement. During the negotiations, Garcia incorrectly assumed that the sales tax would be calculated by multiplying the total $26,250 value of the car by the 6 percent tax rate and apportioning that amount over the 24 months of the lease and he offered to pay a total of $284.62 per month, which reflected his calculations of the tax.

The parties ultimately entered into a written contract in which Garcia agreed to pay $298.53 per month for a black BMW 318iS with certain additional options. The contract broke the rental price down into charges of $281.63 for the monthly rental payment and $16.98 for sales and use tax. Although the lease specified a black BMW, Garcia testified that the car he actually received and accepted was green. A month after leasing the car Garcia read an article which stated that tax on leases is calculated on the monthly lease payment, not on the full value of the car. Garcia’s claims arise from Evans’ alleged misrepresentations regarding the calculation of the sales tax. Held-.

Because Garcia was bound by the written lease agreement, sum-, mary judgment was properly granted. Georgia law traditionally provides two avenues of relief for claimants alleging fraud under these circumstances. The lessee may affirm the contract and sue for breach of contract or rescind the contract and sue in tort for fraud. See City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974). Accepting and retaining the benefits under the contract alleged to be fraudulent after discovering the alleged fraud constitutes an affirmance. Hamilton v. Advance Leasing &c., 208 Ga. App. 848, 850 (2) (432 SE2d 559) (1993).

Here, Garcia sued in tort for fraud, but kept the car despite the fact that the contract he signed clearly showed that the tax had been calculated differently than he had proposed. Garcia’s failure to rescind the contract is fatal to his claim in tort for fraud. Id.; Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272, 273 (2) (306 SE2d 362) (1983); see Hall v. World Omni Leasing, 209 Ga. App. 115, 118 (3) (433 SE2d 297) (1993).

Moreover, the fact that the lease agreement clearly stated the monthly amount to be paid for taxes precludes Garcia from establishing fraud. It is undisputed that Garcia had ample opportunity to read the contract and the contract contained a merger clause stating that “[t]here are no other promises or understandings between the parties concerning this lease.” In the absence of any evidence that Garcia was prevented from reading the contract, the presence of this clause defeats Garcia’s claim of justifiable reliance on any representations by Evans. See Baranco, Inc. v. Bradshaw, 217 Ga. App. 169, 171 (1) (456 SE2d 592) (1995). The absence of justifiable reliance also precludes Garcia’s claim under the Fair Business Practices Act. Bradshaw, 217 Ga. App. at 172.

We reject Garcia’s contention that he was never bound by the written contract he signed because he accepted a different color car. Having consciously elected to enjoy the fruits of the contract by accepting the green car in lieu of the black car described in the lease, Garcia became bound by the lease’s terms. Yeargin v. Farmers Mutual &c., 142 Ga. App. 76, 78 (234 SE2d 856) (1977).

Decided July 8, 1996.

Stefano A. Didio, for appellant.

Forrest J. Lance, for appellee.

We reject Garcia’s attempt to avoid his obligations under the lease based on the fact that Evans’ representative failed to sign it. Regardless of the lack of a signature, Garcia was bound by the lease because he accepted the BMW and the parties incurred mutual obligations. Gruber v. Wilner, 213 Ga. App. 31, 35 (2) (443 SE2d 673) (1994). Because no issues remained to be tried, summary judgment was appropriate.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A96A1245.
    LEVIN v. THE STATE.
    (473 SE2d 582)
   Judge Harold R. Banke.

After a trial on a special plea of incompetency and a trial on the merits, Gregory A. Levin was convicted of aggravated assault, burglary, two counts of simple assault, and possession of a firearm during the commission of a felony. He was found guilty but mentally ill of kidnapping with bodily injury and making harassing telephone calls. On appeal, he enumerates 11 errors.

The State’s evidence showed that this case arose in the wake of Levin’s bitter and protracted divorce proceedings. Levin had been jailed for several months for defying a court order in the divorce case distributing the marital property. He purportedly became convinced that corruption pervaded the court system overseeing his domestic situation and the county hospital where his ex-wife worked, and that various individuals involved in those entities and his ex-wife were conspiring against him. Ostensibly to draw attention to this corruption, Levin broke into his recently remarried and pregnant ex-wife’s home with a sledgehammer and held her hostage at gunpoint. After entering, Levin sent his ex-wife’s 14-year-old daughter away. During the 12 hours Levin held his ex-wife hostage, he repeatedly threatened and beat her and vandalized the house while intermittently communicating with law enforcement directly and through his ex-wife, demanding, inter alia, cigarettes, his dog, an open line to the media in order to expose the corruption in the county, a tape recorder, and to talk to his ex-wife’s daughter. Only the intervention of a SWAT team ended the ordeal. The harassing telephone calls charge was predicated on calls Levin made to the attorney who represented his ex-wife in the divorce.

At trial, the State introduced the tapes of Levin and his ex-wife’s communications with police during the ordeal and expert psychiatric testimony indicating that at the time of the crimes, Levin had signs of a paranoid personality disorder and sought revenge for the divorce settlement, but appreciated the seriousness of his actions, understood their illegality, and could distinguish between right and wrong. The defense’s own psychiatric witness testified that Levin was motivated by a sense of revenge. The experts agreed that Levin was exceptionally intelligent. Levin himself testified that he knew society considered his actions unlawful, but at the time he broke into the house he considered them an expression of political protest for which he would ultimately receive clemency. Held:

1. The trial court did not commit reversible error while charging the jury during the special plea of incompetency proceedings. As Levin correctly argues, the trial court twice stated during the charge that Levin was alleged to be incompetent and incapable of “rendering his counsel any assistance in the defense of the matter for which he is charged.” This is an incorrect statement of the law. The proper standard on this issue is whether a defendant is capable of “rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands.” Carter v. State, 257 Ga. 510, 513 (2) (361 SE2d 175) (1987).

When placed in context, however, the errors do not require reversal. The court made the first of these comments before commencing the charge by generally explaining Levin’s contention that he was incompetent to stand trial. The second was made in the context of reiterating Levin’s contentions as a way of introducing the general charge on incompetence. However, at the beginning of the incompetency proceedings and again when the court actually framed the issue for the jury, it used the proper standard. Although the court’s introductory comments contained a verbal inaccuracy, taken as a whole, the charge substantially presented the issue in a way not likely to confuse the jury. Mobley v. State, 218 Ga. App. 739, 740-741 (2) (463 SE2d 166) (1995).

2. The trial court did not abuse its discretion by prohibiting one of Levin’s lawyers from testifying as to Levin’s ability to assist in his defense. Timberlake v. State, 246 Ga. 488, 501 (7) (271 SE2d 792) (1980). “The practice of trial attorneys testifying is not approved by the courts except where made necessary by the circumstances of the case.” Id. at 500 (7). The circumstances did not necessitate counsel’s testimony here. Compare id. (prosecutor testified as an unanticipated rebuttal witness). Because Levin called two experts who testified about his ability to assist in his defense, his counsel’s testimony was cumulative and not “essential to the ends of justice.” Id. Moreover, in excluding counsel’s testimony, the trial court considered the problematic issue of Levin’s capacity to waive the attorney-client privilege in light of his alleged incompetence. Further, testifying could have placed counsel in the potentially awkward position of arguing his own credibility over the State’s experts. Id. In light of these considerations, a finding that the court abused its discretion is unwarranted.

3. Under the circumstances of this case, the trial court’s failure to charge the mandatory language of OCGA § 17-7-131 (b) (3) (A) is not reversible error. This statute requires the court to instruct the jury, “I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law.” The record shows that the charge Levin requested, which the court gave verbatim, tracked the statutory language except that it omitted the phrase “if ever.” The court subsequently asked counsel if there was anything it might have misread and counsel twice answered in the negative.

Without question, the failure to include the phrase “if ever” was error. Moore v. State, 217 Ga. App. 207, 209 (1) (456 SE2d 708) (1995) (where defense counsel objected to the misleading and erroneous charges). However, Moore, supra, is factually distinguishable due to that court’s complete failure to track the statutory language when it summarized the entire charge. Compare OCGA § 17-7-131 (b) (3) (A) and (B). The charge in Moore was confusing, ambiguous, and likely to have misled the jury as to who would have custody and control of Moore and who would decide if and when he would be released if found not guilty by reason of insanity or guilty but mentally ill. Moore, 217 Ga. App. at 208-209. In Moore, we concluded that the defective charge effectively deprived Moore of his insanity defense. Id. at 208. Conversely, no such ambiguity existed in the instant case because the requested charge specified that the court would retain control over Levin’s release. Nor did the charge imply that the court would be required at some point to order Levin’s releáse.

Moreover, procedural impediments to Levin’s argument preclude reversal on this issue. First, the error was self-induced, which “cannot be complained of on appeal.” Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988). In addition, Levin’s acquiescence to the charge estops him from asserting this claim of error on appeal. Milam v. State, 255 Ga. 560, 561-562 (1) (341 SE2d 216) (1986); compare Gaines v. State, 177 Ga. App. 795, 799 (1) (341 SE2d 252) (1986).

4. We reject Levin’s argument that during the charge the trial court deprived him of his insanity defense on the lesser included offenses by characterizing the possible verdicts and lesser included offenses identically as “options.” The record shows that the court used the word after it had concluded its substantive charges and was instructing the jury on the proper use of the eight verdict forms, which corresponded to each count. The court essentially stated that most of the forms had the same four options — not guilty, not guilty by reason of insanity, guilty, and guilty but mentally ill — but in three charges the jury had the fifth option of convicting on certain named lesser included offenses.

Because the jury charges Levin requested on lesser included offenses addressed only guilt and innocence and did not contemplate the application of his insanity defense the error, if any, was self-induced. See Bailey v. State, 203 Ga. App. 133, 138 (4) (416 SE2d 151) (1992); Griffith v. State, 188 Ga. App. at 790. Moreover, the record demonstrates that the court discussed this format with Levin’s counsel, they acquiesced to it, and one of them actually characterized the choices on the verdict form as “options.” See Milam v. State, 255 Ga. at 561-562 (1) (claim of error on appeal estopped by acquiescence to charge).

5. The trial court erred in permitting the jury to consider a verdict of guilty but mentally ill on the misdemeanor count of making harassing telephone calls. OCGA § 16-11-39 (a) (4). That verdict is available only in felony cases. OCGA § 17-7-131 (b) (1) (D). Converting the verdict to guilty, as the State proposes, would constitute an impermissible substantive change in the verdict violative of OCGA § 17-9-40. See Hollis v. State, 215 Ga. App. 35, 36 (1) (450 SE2d 247) (1994). The conviction on this misdemeanor charge must be reversed.

6. Levin contends that the jury charge on aggravated assault erroneously authorized the jury to convict him of committing the crime in a manner other than that alleged in Count 2 of the indictment. “It is ‘not usually cause for a new trial that an entire Code section is given . . . even though a part of the charge may be inapplicable under the facts in evidence.’ [Cit.]” Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987). However, error arises if the indictment specifies the commission of a crime by only one of several methods possible under the statute and a reasonable probability exists that the jury convicted the defendant of committing the offense in a manner not charged in the indictment. Perguson v. State, 221 Ga. App. 212 (470 SE2d 909) (1996); compare Lumpkin v. State, 249 Ga. 834, 836 (2) (295 SE2d 86) (1982).

Although the indictment charged Levin only with assaulting his ex-wife with a deadly weapon, the court charged the jury as follows, “A person commits the offense of aggravated assault when he assaults with intent to murder, to rape, or rob or with a deadly weapon or any object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.” In contrast to the indictment, the record is replete with evidence that Levin intended to murder his ex-wife. The instruction as given suggested that the jury could convict Levin if it found he assaulted his ex-wife either with intent to murder her or with a deadly weapon. Consequently, we are constrained to find that the charge violated Levin’s due process rights by raising “ £a reasonable [probability] that the jury convicted . . . [him] of the commission of a crime in a manner not charged in the indictment.’ ” Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995); Childs, 257 Ga. at 253 (17).

This same reasoning applies to the firearms charge. The indictment charged Levin with violating OCGA § 16-11-106 by having “on his person a firearm during the commission of the crime of Aggravated Assault.” The court charged that ££[a]ny person who shall . . . have on or within arm’s reach of his person a firearm during the commission of or the attempt to commit any crime against or involving the person of another or the unlawful entry into a building or vehicle commits the offense of possession of a firearm during the commission of a felony.” Evidence of Levin’s unlawful entry into his ex-wife’s house was presented at trial and Levin was convicted of burglary. Thus, a reasonable probability exists that the jury convicted Levin of the firearms charge in a manner not charged in the indictment. Dukes, 265 Ga. at 423. This error is sufficiently egregious to preclude a finding that it was waived even if, as the State argues, Levin failed to except to the charges. OCGA § 5-5-24 (c); Gaines, 177 Ga. App. at 799-800 (1).

7. The trial court did not abuse its discretion in responding to the jury’s request for a definition of the word “disfigurement” in reference to the charge on aggravated battery. Payne v. State, 219 Ga. App. 318 (1) (b) (464 SE2d 884) (1995). The court allowed counsel to research the term “seriously disfigured” as used in the aggravated battery statute and stated that it intended to inform the jury that the disfigurement need not be permanent and the jury must decide whether the disfigurement was serious. Levin’s counsel then stated the instruction seemed reasonable and did not object when the court so charged the jury. After acquiescing to this instruction, Levin is estopped from challenging it on appeal. See Milam, 255 Ga. at 561-562 (1). Moreover, the instruction given was a correct statement of the law. In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991); Miller v. State, 155 Ga. App. 54, 55-56 (4) (270 SE2d 466) (1980).

Decided July 8, 1996.

Virginia W. Tinkler, for appellant.

David McDade, District Attorney, for appellee.

8. We reject Levin’s contention that his trial counsel’s failure to include the phrase “if ever” in his requested charge on OCGA § 17-7-131 (b) (3) (A) constituted ineffective assistance of counsel. (See Division 3 for the statutory language at issue.) Although the omission of this phrase in the requested charge clearly was deficient, Levin failed to satisfy his burden of establishing that the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of his trial would have been different but for his defense counsel’s failure to include the two words at issue in the jury charge. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). The evidence, including the 911 tapes from the hostage ordeal and Levin’s own testimony, particularly his admission that he knew his actions were unlawful, justified the jury’s conclusion that Levin was not insane. See OCGA § 16-3-2 (insanity defense unavailable to an accused who can distinguish between right and wrong).

Nor does the omission of the phrase “if ever” offend the constitutional underpinnings of ineffectiveness analysis. The Sixth Amendment does not require perfect representation, only assistance sufficient to assure the accused due process of law. Guthrie v. State, 160 Ga. App. 824, 825 (2) (287 SE2d 673) (1982). Under the circumstances of this case, we cannot find that the error here was sufficient to deprive Levin of his right to a fair trial or that the trial court clearly erred in determining that counsel was not ineffective. Strickland, 466 U. S. at 687; Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995).

Judgment affirmed in part, reversed in part and remanded.

Johnson and Ruffin, JJ, concur.

       The court charged, “The question here for your determination by your verdict is whether the Movant Greg Levin is at this time capable of understanding the nature and object of the proceedings, understanding the Movant’s situation in reference to such proceedings and giving the attorneys representing the Movant such assistance as a proper defense to the charges demand.”

       Levin was in fact convicted of two of the lesser included offenses. One of the simple assault convictions was a lesser included offense of cruelty to children and the other resulted from an aggravated assault charge.


author: Birdsong, Presiding Judge.

text:
    A96A1307.
    ANDREWS v. THE STATE.
    (473 SE2d 247)
   Birdsong, Presiding Judge.

Angelo Antonio Andrews appeals his conviction of one count of armed robbery by use of a handgun and two counts of financial transaction card fraud. He enumerates five errors. Held:

1. Appellant contends the trial court denied him the right of fair trial by restricting cross-examination and closing argument as to his primary theory of defense.

(a) The scope of a thorough and sifting cross-examination and the scope of permissible closing argument rest within the sound discretion of the trial court. Bennett v. State, 265 Ga. 38, 41 (4) (453 SE2d 458); Grady v. State, 212 Ga. App. 118 (1) (441 SE2d 253). Appellant was 17 years old at the time the offenses were committed. Appellant’s counsel apparently attempted to introduce and argue certain matters for purposes of showing that because of appellant’s youthfulness “he could be viewed as being in a special category, on the edge of juvenile and adulthood” so the jury could determine, under the totality of the circumstances and based on its “common knowledge and experience,” the voluntariness of his confession. Specifically, appellant asserts that the following matters were those which were restricted from exploration by cross-examination and argument: (a) how the interrogating officer would treat the situation if the suspect were 16 rather than 17 years old; (b) whether the officer attempted to contact appellant’s parents; (c) whether the officer explained that if the offenses were admitted, the State would not have to prove certain facts against him; and (d) whether there was any information or explanation given to appellant concerning the penalty for the offenses if admitted.

The trial court refused to allow inquiry as to why an officer would treat a 16-year-old differently than a 17-year-old during interrogation or how anyone younger than age 17 is treated during interrogation, determining that the treatment of 16-year-old juveniles was not relevant.

(We note the record reflects the State elicited testimony from the detective who Mirandized and interrogated appellant that during the interrogation process he “decided . . . that both [appellant and his companion] were juveniles, more or less. The law puts them in an adult status, but they . . . seemed real young, so I decided to go ahead and get a taped statement from them.”)

Appellant was age 17; the rules pertaining to interrogation of juveniles (ages 16 and under) were not relevant as correctly ruled by the trial court. The trial court should exclude irrelevant matter. OCGA § 24-2-1. Appellant has failed to show the trial court breached its discretion in restricting this line of cross-examination and argument.

(b) Appellant also contends that the trial court erred in limiting bis closing argument as to the above matters, as a major part of his defense was jury nullification. Examination of the record reveals that appellant requested jury nullification in the form of a return of a not guilty verdict as to armed robbery based on appellant’s inability to articulate any motive for the offense. In seeking jury nullification, appellant’s counsel argued in part that “I can’t find a good reason to give you. I can only say it is almost as if the circuits were shortened. It’s almost as if he were just like my daughter of [three] years old because he couldn’t give an answer. . . . I’m asking you to find him not guilty of the crime of armed robbery. ... I wish that there was some way I could beg it and give it more substance and give it more meat. ... I am asking you not to find him guilty of armed robbery. . . . I’m saying if you must find him guilty of something, find him guilty of one count of credit card fraud.” While a jury does have a de facto power of nullification, i.e., the power to acquit the defendant regardless of the strength of the evidence against him, it also has a duty to convict if the evidence proves the defendant guilty beyond a reasonable doubt. See Miller v. State, 260 Ga. 191, 196 (13) (391 SE2d 642). A trial court can correctly refuse to charge the jury on the principle of nullification. Briard v. State, 188 Ga. App. 490, 494 (7) (373 SE2d 239). This being so and considering the duty of a jury under Briard, supra, it would appear that a trial court in its discretion could preclude a defendant from making a nullification argument to the jury, as such would be inconsistent with their duty to convict in those instances where the evidence proves defendant guilty beyond a reasonable doubt and would be potentially confusing to them; jury nullification in the face of such evidence is at best a windfall to a defendant and not a right. In this case, however, a form of nullification argument was made to the jury. Considering the latitude given appellant in his closing argument, we find no error as claimed.

2. The trial court did not err in failing to grant appellant’s written request to charge on the lesser included offense of simple robbery. Martin v. State, 213 Ga. App. 146 (444 SE2d 103), citing Williams v. State, 191 Ga. App. 913, 915 (4) (383 SE2d 344); see James v. State, 210 Ga. App. 454 (2) (b) (436 SE2d 565). Uncontradicted evidence of record shows either the completed offense of armed robbery or no offense; such evidence will not support a verdict for one of the lesser grades of the charged offense. Id.

3. The victim recounted in great detail the events surrounding the robbery, including appellant’s threats, profanity, and manner of employing the pistol; the victim “got an extremely good look” at appellant whose face was unobstructed; and he looked at appellant “eyeball-to-eyeball for about 10 seconds.” Applying the factors listed in Martin v. State, 193 Ga. App. 581 (1) (388 SE2d 420), we find the victim’s out-of-court and in-court identifications of appellant were not based on an impermissibly suggestive photographic lineup and were admissible in evidence. Under the totality of the circumstances, we find that the victim’s in-court identification also had independent origin. See generally Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316).

4. Appellant contends the trial court erred by admitting in evidence certain written and oral statements made by appellant, as those statements were illegally obtained and not freely and voluntarily given. This enumeration is without merit.

The arresting officer interrogated appellant as to certain matters, without giving a Miranda warning; the trial court suppressed any testimony by this officer as to any statements appellant may have made while in her custody. The trial court ruled that certain of defendant’s statements to the arresting officer, including those pertaining to the gun and the robbery offense, although not the product of direct questioning, arose as “the officer was asking questions that created the atmosphere of an interrogation.” Thus, although convinced these particular statements were “spontaneous” and made by appellant “while not being questioned or interrogated,” the trial court, out of an abundance of caution and considering the totality of the circumstances, also suppressed these statements. The trial court declined to suppress as fruit of the poisonous tree evidence gathered after appellant’s conversation with the arresting officer.

Responding to a call from Rich’s in reference to a complaint of credit card fraud, the arresting officer took appellant and another person into custody and searched them. The arresting officer, without giving a Miranda warning, asked the two young men a series of questions, including whose wallets they had, where they found the wallet containing the credit cards, where the wallets were found, whether they knew the persons whose credit cards they were using, and why appellant had $866 in cash on his person. Appellant and his companion were then placed formally under arrest and taken to the patrol car. While in the car, the arresting officer asked whether the men had a car parked in the area and proceeded to ask questions regarding the status of the vehicle. The arresting officer transported appellant and his companion to the site of the companion’s car, and there initiated a computer check to determine if it was stolen. While awaiting the computer check results, appellant asked if he could say something and the arresting officer indicated he could. Appellant then told her there was a weapon in his companion’s car inside a black bag, that his companion previously had dropped him off at LaVista Road and arranged to pick him up later, and that he had thereafter robbed an unknown person. The arresting officer called her sergeant who notified the investigating detective; this was the first information the detective received regarding appellant’s crimes. The detective took appellant to police headquarters for questioning and, before commencing interrogation, gave appellant the requisite Miranda warnings. Appellant elected to waive his right to silence and to an attorney, and gave statements to the investigating detective which also led to the ultimate retrieval of the weapon used in the armed robbery.

No error occurred by the admission in evidence of the statements which appellant gave to the detective after appellant’s waiver of his Miranda rights; the admitted statements were not the fruit of the previous statements ruled inadmissible due to a Miranda violation. The trial court inherently found that appellant’s subsequent statements made to the interrogating detective were freely and voluntarily given after he received a proper Miranda warning and that appellant waived his right of silence and right to counsel.

Additionally, “ ‘although Miranda requires that the unwarned admissions must be suppressed, the admissibility of any subsequent statement turns on whether the statement was knowingly and voluntarily made.’ ” Vaughan v. State, 210 Ga. App. 381, 384 (3) (b) (436 SE2d 19), citing Oregon v. Elstad, 470 U. S. 298, 309 (105 SC 1285, 84 LE2d 222). We find that appellant’s subsequent statements made to the detective and admitted in evidence were knowingly and voluntarily given. Accordingly, any claim that these admitted pretrial statements were rendered inadmissible through application of the exclusionary rule also is without merit.

As to the statements made to the arresting officer regarding the gun and appellant’s robbery of an unknown person, the trial court expressly found these statements were spontaneous and given when appellant was not being questioned or interrogated by the arresting officer. We agree and also find from the totality of the circumstances that these voluntary statements were freely and voluntarily given. “ ‘[I]n Georgia the exclusionary rule does not apply to evidence derived from a voluntary statement obtained without the benefit of Miranda warnings.’ ” Vaughan, supra at 384 (3) (b), citing Reinhardt v. State, 263 Ga. 113, 115 (4) (428 SE2d 333). The physical evidence seized during the search of the car of appellant’s companion was not tainted fruit under the exclusionary rule as such evidence, at most, was derived from appellant’s spontaneous and voluntary statement. See Livingston v. State, 264 Ga. 402, 408 (6) (444 SE2d 748). Appellant has not asserted that the evidence seized from the automobile of his companion violated appellant’s Fourth Amendment rights. He is correct in having abandoned any such claim. See generally Banks v. State, 262 Ga. 190, 192 (5) (415 SE2d 634). Further, “ ‘[w]hen the properly admitted evidence to sustain a guilty verdict is overwhelming so as to negate the possibility that the tainted evidence contributed to the verdict, the constitutional error may be harmless.’ ” Green v. State, 187 Ga. App. 373, 374 (1) (370 SE2d 348); see Morrill v. State, 216 Ga. App. 468, 472 (5) (454 SE2d 796).

Decided July 8, 1996.

Tony L. Axam, for appellant.

J. Tom Morgan, District Attorney, Fran W. Shoenthal, Desiree S. Peagler, Assistant District Attorneys, for appellee.

5. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.