text:
    A93A0510.
    YOUNG et al. v. WAL-MART STORES, INC.
    (433 SE2d 121)
   Blackburn, Judge.

This is an appeal from the trial court’s order granting appellee/ defendant, Wal-Mart Stores, Inc.’s (Wal-Mart) motion for summary judgment in a suit for damages arising from the fall of an eight-year-old child in Wal-Mart. Appellants, Bob Fred Young, individually and as next friend of Kelly Leanne Young (hereinafter referred to collectively as the Youngs), brought the instant action, sounding in negligence, against Wal-Mart.

The undisputed facts indicate that on August 22, 1989, Kelly Young accompanied her parents on a shopping trip to Wal-Mart. While her parents were looking at exercise equipment, Kelly wandered over to a treadmill which had been set up for demonstration and display. Kelly stated that when she stepped on the treadmill, the tread rolled back and she fell down, seriously injuring her knee. It is uncontroverted that the treadmill was turned off. It is also uncontroverted that Kelly’s father could not make the tread roll when he tested the treadmill several days after his daughter’s injury. Furthermore, the evidence is clear that Wal-Mart had no knowledge of any other complaints, claims, or alleged injuries involving the treadmill.

On appeal, the Youngs assert 11 enumerations of error. However, their “argument division contains no separate paragraphs relating to each enumeration as required by our rules. See Rule 15 (c) (1). Accordingly, we shall consider the enumerations en masse, as treated by [the Youngs]. Any enumeration not so treated in this opinion is deemed abandoned by [the Youngs]. [Cit.]” McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 229 (348 SE2d 748) (1986). Essentially, the Youngs contend that the trial court erred in granting Wal-Mart’s motion for summary judgment, in that several issues of disputed fact required a determination by the jury.

The Youngs’ basis for liability is set out in OCGA § 51-3-1 which provides that “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” However, “[a] storekeeper is not liable as an insurer of the safety of persons whom he has invited to enter his premises. He owes them a duty of ordinary care, to have his premises in a reasonably safe condition, not to lead them into a dangerous trap, or to expose them to unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils. . . . What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.” (Citations and punctuation omitted.) Madaris v. Piggly Wiggly Southern, 205 Ga. App. 405, 406 (422 SE2d 273) (1992).

“The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. ... We recognize that even in premises liability cases the age of the injured person is relevant. Because a child may be unable to appreciate a danger, and therefore, to have knowledge of the hazard equal to that of the owner/ occupier, an owner/occupier may be held to a higher standard of care toward a child than toward an adult.” (Citations and punctuation omitted.) Hobson v. Kroger Co., 204 Ga. App. 417, 419-420 (419 SE2d 492) (1992).

In the present case, the record contains no evidence that the treadmill was a perilous instrumentality or that it exposed Kelly to an unreasonable risk of harm. The evidence showed that Kelly cut her knee on one of the angle irons, located on each side of the tread. Bob Young testified that “the angle iron was 90 degrees, flat on top, vertical on the sides.” He deposed that “[t]his was not a honed edge (e.g., not like a sharpened knife), but it was a gauge of thin enough metal to where an abrupt impact with the metal would cut.” In their brief filed with this court, the Youngs assert that the edges of the angle iron were “unfinished, rough, [and] jagged”; however, these descriptions are not supported in the record.

If the description of the angle irons as found in the Youngs’ briefs was supported by the evidence, the question of whether WalMart breached its duty to Kelly Young would be properly submitted to the jury. Since, however, there is no such evidence and it is clear that Wal-Mart had no actual knowledge of any danger associated with the treadmill, no jury question exists. Furthermore, Wal-Mart had no constructive knowledge that the treadmill could be considered a “perilous instrumentality.” The evidence is clear that tread on the treadmill would not move, when the machine was turned off, on every occasion except when Kelly stepped on it. Furthermore, because the angle irons were not jagged or uneven, one could not tell by mere observation that an injury, such as occurred, could happen.

“In Augusta Amusements v. Powell, 93 Ga. App. 752, 754 (92 SE2d 720), we held: ‘Code § 105-204 (currently OCGA § 51-1-5 with minor modifications) provides as follows: “Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.” As applied to this case, this Code section would relate to that degree of care which the child should be required to exercise for his own safety, and, as to a child of [eight] years, the question would be one for the jury to decide. (Cit.) As to the duties of adults toward children, the rule of law is that children of tender years are entitled to a degree of care proportioned to their ability to foresee and avoid perils which may be encountered (cit.); that by reason of this “due care” or “ordinary care” to avoid injury to another may involve a greater duty owed to small children lawfully upon premises than to older persons (cit.); and accordingly the degree of care may vary with the capacity of the invitee. But, regardless of the age or capacity of the injured person, if there is no breach of any legal duty on the part of the defendant toward such person, there can be no legal liability.’ ” Hobson, supra at 419.

Decided June 24, 1993.

Greer, Klosik & Daugherty, John F. Daugherty, William L. Swank II, Joseph G. Stewart, Jr., for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Joseph B. Atkins, McLain & Merritt, Howard M. Lessinger, for appellee.

In the present case, considering the relevant facts, including, but not limited to, Kelly Young’s age and the condition of the treadmill, the trial court was correct in finding that Wal-Mart did not breach its legal duty to not expose the Youngs to an unreasonable risk of harm while on its premises and approaches.

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A0684.
    ROSS et al. v. HAGLER.
    (433 SE2d 124)
   Blackburn, Judge.

The appellee, Louise Hagler, commenced this action against Gary Brock & Associates, Inc., and Larry Ross, seeking damages for persistent flooding in her back yard allegedly caused by improper erosion and sedimentation control in the defendants’ development of a residential subdivision. Following trial in the matter, the jury returned a verdict for Hagler in the amount of $7,600 damages and $16,600 attorney fees.

In 1986, Hagler and her family constructed a home on a lot adjoining a subdivision called Markets Walk that was being developed at the time. She had no complaints associated with the land development until August 1990, when her back yard suddenly flooded with water draining from the developing lots. Thereafter, Hagler continued to experience flooding every time it rained, with resulting deposits of silt, construction debris, and trash.

In response to a complaint by Hagler, a DeKalb County environmental developmental technician inspected the site on August 3, 1990, and notified the defendants that they should correct the erosion and sedimentation problem resulting from the land development activities. This technician subsequently inspected the site on several other occasions and issued warnings to the defendants, instructing them to correct the erosion, and the defendants did take some remedial measures such as installing silt fences. At the trial, the technician acknowledged that the defendants eventually were cooperative in attempting to correct the problem.

Subsequently, an environmental specialist with the Georgia Department of Natural Resources also inspected the subdivision development and Hagler’s property, and he observed what he described as “unconventional” methods of erosion control. Specifically, he noted a large ditch that was apparently designed to carry water, deteriorated silt fences, and use of riprap as bed rock for the drainage ditch. Initially, he cited the defendants for having failed to obtain a land disturbance permit, but this citation was rescinded, provided the defendants control the erosion. The department ultimately concluded that because of the stage of completion of the subdivision, the problem was more properly classified as a storm water management matter, rather than an erosion and sedimentation problem.

1. A civil engineer, who had inspected the site and met with the defendants to discuss possible remedial measures, testified as an expert witness on Hagler’s behalf. In his opinion, the erosion and sedimentation control measures implemented by the defendants were temporary and ineffective. Despite having been forewarned by the trial court not to mention any discussions regarding settlement or compromise, in recounting the remedial measures discussed during his meeting with the defendants, the engineer testified that “beyond that, work that would accommodate their proposal back to me was that there could be some consideration given to the Haglers of — in reimbursing them for corrective measures that were taken.”

The defendants then moved for mistrial on the ground that this testimony impermissibly introduced evidence of an offer to compromise and settle. The trial court denied the motion, but instructed the jury to disregard the witness’s statement about any reimbursement of Hagler, emphasizing that “You are not to consider that. That is not a matter for you to consider in this case.” On appeal, the defendants contend that this curative instruction was insufficient, and that the trial court erred in failing to grant a mistrial.

OCGA § 24-3-37 provides in part that “admissions, or propositions made with a view to a compromise are not proper evidence.” The law encourages settlements by prohibiting admission into evidence offers to compromise and settle a disputed claim. Davidson v. American Fitness Centers, 171 Ga. App. 691 (3) (320 SE2d 824) (1984).

Although the engineer’s testimony actually may have concerned the implementation of corrective measures they discussed rather than an offer to compromise a claim, the testimony was capable of being understood as evidence of the latter. However, the witness’s brief reference to the discussion regarding reimbursement of Hagler for corrective measures did not require grant of a mistrial.

A trial court’s decision to deny a motion for mistrial will not be disturbed absent a manifest abuse of discretion. Bullock v. Bullock, 244 Ga. 538 (261 SE2d 331) (1979); Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497 (277 SE2d 785) (1981). “Where a motion for a mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of discretion, the refusal of the trial court to grant a mistrial is not error. [Cits.]” Hixson v. Barrow, 142 Ga. App. 65, 68 (4) (234 SE2d 805) (1977). In the instant case, the trial court gave immediate and emphatic instructions to the jury to disregard the objectionable remark, and we find no manifest abuse of discretion in denying the defendants’ motion for mistrial.

2. The civil engineer also testified that in his expert opinion, under the requirements of the Sedimentation and Erosion Control Act, a subdivision owner and developer are responsible for development-wide sedimentation and erosion control devices, as well as a storm water system. The defendants contend that admission of this testimony was error, as it addressed the ultimate issue to be decided by the jury. We disagree.

The Georgia Supreme Court has held that “[e]xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). The expert witness’s opinion as to the responsibility for erosion and sedimentation control measures required by the law and acceptable engineering practices concerned such a matter beyond the knowledge of the average layman.

We also note that the ultimate issue in this case actually was whether or not the defendants created a continuing trespass upon Hagler’s property, rather than who has legal responsibility for implementing erosion and sedimentation control measures in a land development project. Further, prior to the testimony of the civil engineer, one of the defendants himself testified that the owner/developer of a subdivision is responsible for any drainage problems created by the development, which imported essentially the same information as testified to by the civil engineer. The testimony thus merely corroborated the evidence that was before the jury without objection, and could not have affected the verdict. Wilson v. Bonner, 166 Ga. App. 9, 17 (5) (303 SE2d 134) (1983).

3. At the close of Hagler’s case, the defendants moved for a directed verdict on the claims for punitive damages and attorney fees. The trial court granted the motion as to the issue of punitive damages, but denied it as to the issue of attorney fees. The defendants contend that under General Refractories Co. v. Rogers, 240 Ga. 228 (239 SE2d 795) (1977), the trial court’s determination that there was no evidence to support an award for punitive damages also eliminated the claim for attorney fees based on bad faith.

In General Refractories Co., where the defendant’s mining operation on its land resulted in an increase in the natural flow of surface water onto the plaintiff’s land, the Supreme Court observed that in order to impose exemplary or punitive damages under OCGA § 51-12-5, there must be aggravating circumstances, i.e., “evidence of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” Id. at 230. Attorney fees as expenses of litigation, however, are not punitive damages, but are regulated by OCGA § 13-6-11, and the jury may award them if the defendant has acted in bad faith. Ponce de Leon Condos. v. DiGirolamo, 238 Ga. 188 (2) (232 SE2d 62) (1977). “Every intentional tort invokes a species of bad faith that entitles a person wronged to recover the expenses of litigation including attorney fees.” DeKalb County v. McFarland, 231 Ga. 649, 651 (203 SE2d 495) (1974).

In General Refractories Co., the Supreme Court properly concluded that the lack of proof of an intentional tort was fatal to both the claim for punitive damages and the claim for attorney fees. However, nothing in that case prohibits awarding attorney fees based upon the showing of an intentional tort, where the absence of aggravating circumstances precludes awarding any punitive damages. That is, although conduct may constitute an intentional tort and therefore authorize imposition of attorney fees, it may not be so egregious as to present the aggravating circumstances necessary for punitive damages. In the instant case, there was some evidence that the defendants intentionally diverted the flow of water onto the property in question, and the trial court properly denied the defendants’ motion for directed verdict on the claim for attorney fees.

Decided June 24, 1993.

Lewis M. Groover, Jr., for appellants.

Huddleston & Medori, Kathryn M. Zickert, Karen S. Byers, for appellee.

4. During closing argument, counsel for Hagler remarked to the jury that “I don’t think you would like to have the defendants develop a neighborhood behind you.” The defendants moved for mistrial, on the ground that the remark improperly asked the jurors to place themselves in the position of a party. The trial court denied the motion, but immediately instructed the jury that the statement was improper and must be disregarded.

“Even where the conduct of counsel exceeds the bounds of propriety, the trial judge is vested with a broad discretion in determining whether to grant a mistrial, and his ruling will not be disturbed unless it appears that his discretion was manifestly abused. [Cits.]” Walker v. Bishop, 169 Ga. App. 236, 241-242 (8) (312 SE2d 349) (1983). In the instant case, the trial court’s instruction to the jury to disregard the improper statement by Hagler’s counsel was sufficient to preserve the jury’s objectivity, and we find no manifest abuse of discretion in the trial court’s denial of the defendant’s motion for mistrial. See Doe v. Moss, 120 Ga. App. 762, 767 (172 SE2d 321) (1969).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0697.
    DURDEN v. THE STATE.
    (433 SE2d 128)
   Blackburn, Judge.

Appellant, Johnny Ray Durden, appeals his conviction of burglary. The evidence reveals that on September 12, 1991, Jennifer Walker invited several of her friends to her residence after she got off work, at a local nightclub, around 2:30 a.m. Durden lived in the trailer across from Walker’s trailer, and had met Walker on previous occasions when he had used Walker’s phone. Around 3:00 a.m., Durden joined the people in Walker’s trailer. Thereafter, Walker requested that everyone leave because she needed to go visit her boyfriend who was working night watch at a local Coast Guard station.

Upon waking, later that morning, Walker noticed that her jewelry, including an amethyst ring, and some money were missing. Patrolman Mike Owens of the Glynn County Police Department observed pry markings inside the door jam of the rear door. Walker told Owens that she suspected Durden of the burglary. That evening, Durden and Rick Rivera came to the night club where Walker was working. Walker told Durden that if he would return her amethyst ring and a bracelet, she would forget about the burglary. At that time, Durden denied committing the burglary.

Thereafter, Durden approached Denise Lloyd, a shift manager at a local convenience store, about selling her some jewelry. Durden assured Lloyd that the jewelry was not stolen. Lloyd purchased an amethyst ring for $50 from Durden, at his trailer. Lloyd testified that Durden later approached her to get the ring back. Durden told Lloyd that he needed the ring back or “they were going to lock him up because it was stolen.” Durden promised to return her money and Lloyd gave the ring back.

On September 25, 1991, Investigator Ken Conley of the Metro Drug Unit Task Force contacted Detective Carl Futch of the Glynn County Police Department regarding information he received concerning stolen property in the Canal Road Mobile Home Park. They proceeded to Lot 10 in the Canal Road Mobile Home Park where they received consent to search the trailer from Rick Rivera, a tenant and legal occupant. The officers found some of Walker’s possessions in the back bedroom and inside the furnace in the den. Later that evening, Walker identified the recovered items as the property taken from her residence.

Walker testified that around 10:00 p.m., on September 25, 1991, after she had identified her property, she received a phone call from Durden. She testified that she recognized Durden’s voice and that he identified himself. Durden apologized and when she asked about the amethyst ring, he stated that he would try to get it back from the person that bought it. Thereafter, Durden came to Walker’s trailer and returned her amethyst ring.

1. On appeal, Durden first asserts that the trial court erred in denying his motion to suppress the evidence found by the police officers in his trailer. Durden argues that at the motion to suppress hearing, the State failed to produce any admissible evidence regarding the consent to search obtained from Rick Rivera. The State produced Investigators Conley and Futch who testified regarding Rivera’s consent to search. Durden testified that the lease was in Rivera’s name, and that Durden had only been living there a short time. Durden maintains that the police officers’ testimony was hearsay and should not have been considered by the trial court. However, this argument was decided adversely to Durden in United States v. Matlock, 415 U. S. 164, 172-176 (94 SC 988, 39 LE2d 242) (1974). Therefore, it was not error for the trial court to receive Rivera’s hearsay evidence during the suppression hearing. See id.

2. In his second enumeration of error, Durden contends that the trial court erred in allowing the State to present evidence of similar transactions. Durden argues that the trial court did not make a specific determination for what purpose it admitted the similar acts. The trial court charged the jury that any evidence of other alleged offenses was admitted “for the purpose of your consideration solely and only under the provision of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, course of conduct, identity, or other matters dependent upon a person’s state of mind, are involved as material elements in the offense for which he is on trial. ... If you believe that the accused has had similar transactions, then bear in mind that in connection with any such evidence you are considering it solely with reference to the mental state, identity or intent of the defendant in so far as the same is applicable to, or refers to, or illustrates the charges in this bill of indictment for which the defendant is on trial.” Therefore, the trial court did limit the purpose for which the jury was to consider the evidence of similar transactions to the reasons put forth by the State during the hearing on the State’s motion to use evidence of similar transactions. See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

Decided June 24, 1993.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Stephen G. Scarlett, Assistant District Attorney, for appellee.

3. Durden next asserts that the trial court erred in allowing the jury to hear evidence of an alleged telephone conversation in which Walker identified Durden’s voice. Durden argues that under Shepherd v. State, 173 Ga. App. 499 (326 SE2d 596) (1985), a telephone conversation is admissible only if the proper foundation showing the basis for any voice identification is laid. We agree. However, in the present case, Walker did provide the basis for her identification of Durden’s voice. Both Durden and Walker testified that they had spoken on, at least, four other occasions. Walker stated that Durden identified himself and that she recognized his voice. Walker did provide the jury with the basis for her identification of Durden’s voice and, therefore, the trial court did not commit error in allowing such testimony.

4. In his final enumeration of error, Durden argues that insufficient evidence exists by which a rational trier of fact could have found Durden guilty beyond a reasonable doubt. We do not agree. Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Durden guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge. Smith, Judge,

text:
    A93A0370.
    THE STATE v. BANGLEY.
    (433 SE2d 372)
   Blackburn, Judge.

The State appeals the trial court’s grant of Bangley’s motion to dismiss the portion of the State’s accusation which alleged that Bangley was guilty of a high and aggravated misdemeanor. On December 17, 1991, Bangley was arrested and charged with driving under the influence of alcohol, obstruction, no proof of insurance, and driving on the wrong side of the road. On May 4, 1992, the State drew an accusation charging Bangley with violating OCGA § 40-6-391, and other violations, including alleging the commission of a high and aggravated misdemeanor pursuant to OCGA § 40-6-391 (c). The State asserted that the basis for its allegation of a high and aggravated misdemeanor was Bangley’s prior DUI convictions on June 8, 1987 and October 30, 1985. Bangley filed his motion to dismiss alleging that the State lacked statutory authority to charge a high and aggravated misdemeanor because both his previous DUI convictions were not within five years of the present charge. The trial court granted Bangley’s motion and the State appeals.

In its sole enumeration of error, the State asserts that the trial court erred in dismissing the State’s accusation as drawn. The State argues that OCGA § 40-6-391 (c) clearly states that a person convicted of a third or subsequent conviction shall be guilty of a high and aggravated misdemeanor and that Bangley was convicted of two prior DUI offenses. Therefore, the State concludes that its accusation was properly drawn. However, the statute is not so clear as to require the State’s interpretation.

OCGA § 40-6-391 provides, in pertinent part, that “(c) [e]very person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor and shall be punished as follows: ... (3) [f]or the third or subsequent conviction within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted. ...”

The State argues that if the legislature had intended to limit the application of the words “upon a third or subsequent conviction thereof” to those convictions within five years, “they would have said so.” However, this argument completely overlooks the fact that the legislature did “say so.” In paragraph (3) of subsection (c), the legislature used the words “within a five-year period of time” to modify the meaning of “the third or subsequent conviction.” Furthermore, subsection (c) of OCGA § 40-6-391 contains one long sentence which encompasses paragraph (3). Therefore, OCGA § 40-6-391 (c) should be read and interpreted in its entirety, rather than in fragments.

“Any criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges.” Mitchell v. State, 239 Ga. 3 (235 SE2d 509) (1977). Additionally, “ ‘[i]t has always been the law that criminal statutes must be strictly construed against the state. McAllister v. State, 122 Ga. 744 (50 SE 921) (1905).’ ” Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). Finally, “where a statute imposing the penalty for commission of a criminal offense is capable of two constructions, such statute should be construed as imposing the lesser penalty.” Id. These rules of statutory interpretation in criminal matters justify the trial court’s dismissal of the portion of the State’s accusation which improperly charged Bangley with a high and aggravated misdemeanor as it was uncontroverted that Bangley’s first arrest for DUI was not within five years of his arrest for his third DUI.

Judgment affirmed.

Johnson and Smith, JJ., concur specially.

Smith, Judge,

concurring specially.

I concur fully with the majority’s interpretation of OCGA § 40-6-391 (c). I write separately in an attempt to outline more fully the reasons why the State’s construction of that provision does not reasonably reflect legislative intent. That intent, however, is expressed with less than admirable precision in the statute.

Prior to 1990, OCGA § 40-6-391 (c) provided that “every person convicted of [DUI] shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as follows. . . .” Ga. L. 1985, p. 758, § 17. Subparagraphs (1), (2), and (3) provided for escalating levels of mandatory minimum punishment, depending upon the number of convictions within the previous five years measured from the dates of previous arrests leading to convictions. Prior to 1990, though, even the most severe possible punishment for repeat violations of OCGA § 40-6-391 within five years did not exceed the maximum allowable for misdemeanors generally. See OCGA § 17-10-3.

In 1990, the Georgia General Assembly amended OCGA § 40-6-391 (c) to provide that “[e]very person convicted of [DUI] shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor and shall be punished as follows. . . .” The scheme of punishment provided under the current law, however, still is based upon the number of convictions within that same five-year period used in the prior law. The chief difference is that the maximum punishment for a third or subsequent offense within five years now can be the maximum for high and aggravated misdemeanors. OCGA § 17-10-4.

Decided June 25, 1993.

Patrick H. Head, Solicitor, Clifford L. Granger, Jr., Sharon L. Melcher, Assistant Solicitors, for appellant.

Skelly & Buckland, Richard M. Skelly, for appellee.

Statutes must be read as a whole, and in interpreting them the courts must “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil and the remedy.” OCGA § 1-3-1. Hargrove v. State, 253 Ga. 450, 452 (1) (321 SE2d 104) (1984). In this case, the “old law” required harsher punishment only for those persons arrested and convicted for DUI more than once within a five-year period, and it made no provision for any punishment more severe than that available for misdemeanors generally. The “evil” addressed by the manner in which punishment is escalated, under the old law and the new, is the propensity of some to operate motor vehicles while intoxicated within a relatively short time after one or more DUI convictions. The new law’s “remedy,” in terms of punishment intended to deter such behavior, is that defendants convicted of third and subsequent DUI offenses within a five-year period now are subject to the harsher maximum punishment available for conviction of a high and aggravated misdemeanor. Primarily, this means the sentencing judge has the authority to impose a much larger fine.

The State argues the legislature intended to allow judges greater discretion to punish more severely those who accumulate three or more DUI convictions over longer periods of time than five years. As presently worded, however, the statute’s punishment provisions indicate otherwise. For this reason, I conclude that the legislature intended that only those defendants who may be punished under OCGA § 40-6-391 (c) (3) may be charged with a high and aggravated misdemeanor under that Code section.

I am authorized to state that Judge Johnson joins in this special concurrence.


author: Pope, Chief Judge.

text:
    A93A0486.
    WILBANKS et al. v. ECHOLS et al.
    (433 SE2d 134)
   Pope, Chief Judge.

The record in this case shows that plaintiff James Wilbanks, a volunteer firefighter with the Paulding County Fire Department, received a call at around 10:30 or 11:00 p.m. on September 7, 1990 concerning a fire at the Wynbrooke Farms Subdivision. Plaintiff drove his truck to the scene of the fire, exited his vehicle and walked across the road toward the fire. However, after plaintiff had crossed the road and as he was proceeding on toward the fire, he fell into a rectangular pit located near or on lot 83 of the subdivision. Estimates concerning the dimensions of the excavated pit varied, but it is undisputed that at the deepest end the pit was approximately 18 feet deep. The estimates concerning the length of the pit ranged from 25 to 40 feet, and its width was approximately 12 feet. The pit had been placed on the property by defendants, who are house builders, for the purpose of disposing of debris from the building site on the lot. There were no lights, markers, barricades or warning signs or structures around the pit.

Plaintiff and his wife (“plaintiffs”) filed the present action against defendants seeking to recover for the injuries plaintiff received in the fall and for loss of consortium. This appeal follows the trial court’s grant of summary judgment to defendants.

Georgia has adopted the Fireman’s Rule which precludes recovery for injuries received by firefighters when they are injured as a result of the negligence that caused them to be called to the scene of the fire. Bycom Corp. v. White, 187 Ga. App. 759, 762 (371 SE2d 233) (1988). However, “ ‘[t]his is not to say that firemen or police officers are barred from recovery in all instances in which they are injured by negligent acts. The relevant inquiry is whether the negligently created risk which resulted in the fireman’s or policeman’s injury was the very reason for his presence on the scene in his professional capacity. If the answer is yes, then recovery is barred; if no, recovery may be had.’ [Cit.]” Id. at 762.

In this case plaintiff was injured not by reason of the fire but when he fell into an open excavation while trying to get to the fire. Thus we agree with plaintiffs that they are not automatically precluded from recovery in this case by application of the Fireman’s Rule.

Having determined that plaintiff’s injuries were caused by events which were extrinsic to the fire’s inception, the next step is to ascertain what duty the defendants owed to him. See Ingram v. Peachtree South, Ltd., 182 Ga. App. 367, 368 (355 SE2d 717) (1987). It has long been the rule in Georgia that firefighters who come upon land or enter premises in their professional capacity occupy the position of licensees. “It seems to be the uniform and universal holding of all the courts that a member of a city fire department enters the premises of another in the exercise of his duty as a licensee, under permission given him by law [cit.], and the decisions of the courts agree that the owner of the premises assumes no duty to the licensee except to refrain from acts of wilful and wanton negligence. [Cits.]” Todd v. Armour & Co., 44 Ga. App. 609 (162 SE 394) (1932). Accord Baxley v. Williams Constr. Co., 98 Ga. App. 662 (106 SE2d 799) (1958). Plaintiffs urge, however, that defendants in this case should be held to a higher standard of care because the portion of the pit into which plaintiff fell was located on the public right-of-way, not on the subdivision lot. As to this issue the record shows that defendant Michael Echols testified in his deposition that before he began excavating the pit, he measured the distance between the roadway and the point at which the excavation began and that he dug the pit 15 feet from the road. Defendant Robert Echols testified in his deposition that the pit was located entirely on the subdivision lot. However, plaintiffs presented an affidavit from a licensed land surveyor that “part of the hole is located on [the subdivision lot] and a part is located on the public right-of-way of a public road known as Picketts Trace.” Plaintiffs also presented evidence that plaintiff fell into the portion of the pit located closest to the public road and thus on the public right-of-way.

“ ‘Where the injury for which a recovery is sought is caused by the dangerous statical condition of the premises, the injury to the licensee has to be occasioned by wilful and wanton negligence.’ [Cits.] However, it is also the law in this state that ‘ “(a) person responsible for a place, agency, instrumentality, or operation which is dangerous and likely to cause injury or damage to persons or property lawfully in its proximity is charged with the duty of taking due and suitable precautions to avoid injury or damage to such persons or property, and his failure to take such precautions constitutes negligence.”. . . “A person responsible for a dangerous place or instrumentality must guard, cover, or protect it for the safety of persons or animals rightfully at or near it, and his failure to do so is negligence, rendering him liable to a person who, without fault on his part, is injured as a result thereof.” (Cits.)’ (Emphasis supplied.) Cox v. Greenfield, 50 Ga. App. 699, 701 (179 SE 178) (1934). Thus, ‘(w)ith reference to uninclosed premises ... , if upon such premises the owner [or occupier] shall maintain a dangerous nuisance in such situation as that persons lawfully entering thereon, without fault upon their own part, suffer injury, he is answerable in damages.’ (Emphasis supplied.) Hutson v. King, 95 Ga. 271, 274 (22 SE 615) (1894). ‘(W)hatever may be the duty of an owner of premises with reference to persons who unlawfully intrude thereon, such owner has no right to maintain upon his premises any dangerous nuisance which might imperil the lives of those persons who from lawful necessity or convenience might pass along, and by accident or some superior force, and without fault upon their own part, fall or be thrown from the sidewalk or from a public thoroughfare into such (dangerous nuisance). A man must so guard his premises situated immediately adjacent to a public highway, as that one who of necessity deviates slightly therefrom may not be injured.’ (Emphasis supplied.) Hutson v. King, supra at 276.” (Indention omitted.) Bethune v. Leake, 177 Ga. App. 330, 331 (2) (339 SE2d 296) (1985), aff’d, 256 Ga. 54 (344 SE2d 228) (1986).

Decided June 25, 1993.

George A. Pennebaker, W. Thomas Cable, for appellants.

Smith, Eubanks, Smith & Darden, David P. Hartin, Charles W. Chesbro, for appellees.

In light of the foregoing, we conclude that a material question of fact remains to be resolved by the factfinder concerning whether the defendants in this case were negligent in placing an unlighted, unmarked and unbarricaded pit on or near the public right-of-way. See also Wright v. Southern R. Co., 62 Ga. App. 316, 318 (7 SE2d 793) (1940) (in which this court noted that it is usually a question of fact concerning whether the excavation is “so far” removed from the public road or street as not to be in dangerous proximity thereto); cf. Baxley v. Williams, 98 Ga. App. at 670 (in which this court, in holding that the fireman was not entitled to recover for injuries received when he fell into an excavation while on the premises to fight a fire, noted that “[t]here were no roads, streets, avenues, sidewalks or trails in the vicinity of the alleged excavation.” Id.). Consequently, and “notwithstanding any issue concerning the status occupied by [plaintiff James Wilbanks] when he [was injured] the trial court [erred in granting defendants’] motion for summary judgment.” Bethune v. Leake, 177 Ga. App. at 331.

Judgment reversed.

Birdsong, P. J., concurs. Andrews, J., concurs in judgment only.

       Plaintiffs also urge that the Fireman’s Rule should not bar recovery in this case because plaintiff was an unpaid, volunteer firefighter. However, inasmuch as we have determined that the Fireman’s Rule does not bar recovery in this case because plaintiff’s injuries were unrelated to the fire or its inception, it is unnecessary for us to address this issue.


author: Birdsong, Presiding Judge.

text:
    A93A0658.
    SAMPSON v. THE STATE.
    (433 SE2d 136)
   Birdsong, Presiding Judge.

Warren Carey Sampson appeals his convictions of terroristic threats, battery (three counts), simple battery, armed robbery (two counts), and aggravated assault. He contends the trial court erred by denying his motion for a new trial based on the insufficiency of the evidence, erred by denying his motion to suppress a statement made to the police because he had not been properly warned of his constitutional rights, erred by denying his motion to suppress the statement because it put his character in issue, and erred by denying his motion to suppress a box cutter knife which Sampson contends was discovered in an illegal search.

The record shows that four men, in separate incidents, were accosted by a man later identified as Sampson. The first victim testified that Sampson hit him on the arm and in the face and told him that if Sampson found him in the park again he would kill him. This victim also testified that later he saw Sampson again, and again Sampson threatened to kill him.

Another man identified Sampson as the man who put a knife to his throat and demanded money, saying that he would cut the victim’s throat. This victim also testified that he gave Sampson his wallet, and fled while Sampson was going through his wallet.

Still another victim identified Sampson as the man who demanded his jewelry and money and cut him on the side and back when he said he had no money. The evidence showed the cut on this victim’s back was ten inches long.

The last victim testified that he was attacked by Sampson, and while he did not see a weapon, he received a ten-inch cut on his back that required 101 stitches to close. The man reported that his attacker wore a shirt with the name “Warren” on it.

Subsequently, acting on an anonymous tip that the man responsible for these attacks would be leaving town by bus, police officers went to the bus station to see if they could locate the suspect. When a man closely matching the given description arrived, an officer approached the suspect, Sampson, and asked if he would mind going with him to the police station. Sampson agreed, and after arriving at the station, a photograph was taken of Sampson and used in a photo-lineup from which two victims identified Sampson as the man who had attacked them. Sampson was then placed under arrest. An inventory of his luggage revealed a box cutter knife. Held:

1. Sampson contends the trial court erred by denying his motion for a new trial because the evidence was insufficient to prove corroboration of the communication of the terroristic threat and insufficient to prove armed robbery with an offensive weapon because the victim did not see a knife and was not cut or bruised. Sampson also contends that one victim’s confusion about his age was sufficient to create a reasonable doubt.

This court must view the evidence in the light most favorable to the verdict. Sampson is no longer presumed innocent, and we will determine the sufficiency, not the weight of the evidence, and will not judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Further, we will not speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Regarding the alleged failure of corroboration, OCGA § 16-11-37 (a) provides, in part: “No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness. OCGA § 24-4-8. Further, “OCGA § 16-11-37 does not specify how the testimony must be corroborated. As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely1 for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted.) Ellis v. State, 176 Ga. App. 384, 386 (3) (336 SE2d 281). In this instance, we find evidence of corroboration in the testimony of one witness who saw the victim’s agitated and incoherent state shortly after the threat was communicated and also saw Sampson standing outside waiting, and by the testimony of another witness who on another occasion saw Sampson react to the presence of the victim by pointing his finger aggressively at the victim as if he was targeting the victim. Under the circumstances, we find the evidence sufficient to corroborate the victim’s testimony.

Regarding Sampson’s assertions concerning the lack of evidence of an offensive weapon, the victim testified he felt a knife at his throat, and when asked how he knew it was a knife, he testified he felt the edge of it on his throat and Sampson said that he was going to cut his throat. There is no requirement that the weapon be seen by a victim as long as there was some physical manifestation of a weapon and some evidence from which the presence of a weapon may be inferred. Shellman v. State, 207 Ga. App. 309 (427 SE2d 817); Hughes v. State, 185 Ga. App. 40 (363 SE2d 336). In this instance, this testimony was sufficient. Sanders v. State, 204 Ga. App. 37, 38 (419 SE2d 24). Further, in light of all the evidence in the case, we do not consider the fact that one victim described Sampson to the police as being 20 years younger than his actual age, to create a reasonable doubt as a matter of law. Instead, this testimony concerns the weight to be given this testimony and not its sufficiency.

“Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

Decided June 25, 1993.

Linnie L. Darden III, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assis tant District Attorney, for appellee.

2. Sampson’s contention that the trial court erred by denying his motion to suppress his statement to the police is without merit. The transcript of the motion hearing shows the trial court found that Sampson was not in custody at the time he made this statement and further found the statement was spontaneous and not in response to police questioning. “As a general rule, the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.” (Citation and punctuation omitted.) Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). As the trial court’s findings of fact are supported by the testimony of the police officers, the trial court’s findings are not clearly erroneous. Crawford v. State, supra.

3. Sampson also contends the trial court erred by denying his motion to suppress his statement to the police because it impermissibly put his character in issue. There was no error. The transcript of the hearing on Sampson’s motion shows the statement to the police made at the time of his arrest was spontaneous and not in response to police questioning. “As a general rule, all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae.” Crowe v. State, 193 Ga. App. 385 (388 SE2d 24). Not all evidence that may place a defendant’s character in issue is inadmissible; thus, there was no error in admitting this evidence. Howard v. State, 206 Ga. App. 610 (426 SE2d 181). Moreover, assuming admission of this statement was error, we find any such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of Sampson’s guilt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869).

4. Finally, Sampson asserts that a box cutter found in his luggage should have been suppressed because it was seized as a result of an illegal search. The trial court found, however, the box cutter was discovered during an inventory of his luggage before it was placed in the jail’s storage area. As this finding is not clearly erroneous, we are bound to accept it. Santone v. State, supra. Accordingly, since objects seized in a reasonable inventory of property are admissible in evidence (see Williams v. State, 204 Ga. App. 372, 373 (419 SE2d 351)), there was no error.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0927.
    JACKSON v. THE STATE.
    (433 SE2d 655)
   Beasley, Presiding Judge.

Appellant was convicted of conspiracy to commit theft by deception, OCGA § 16-8-3, and arson in the first degree, OCGA § 16-7-60. The indictment named his wife, Sandra Jackson, a/k/a Sandra McCloud, and Lenora Mitchell, a/k/a Lynn Mitchell, among others, as conspirators.

The evidence showed that Mitchell sold a house located at 250 Camelot Drive in Fayetteville, Georgia, to appellant Marcellous and Sandra Jackson for $424,000, even though the fair market value of the house was no greater than $312,000.

As part of the application to the mortgage loan company, Ameristar Financial Corp., the Jacksons submitted a property appraisal which contained false information as to comparable properties. They stated on the loan application that they had various assets, including $175,000 in an identified Bank South account, but a Bank South employee testified that there were no more than several hundred dollars in this account at any time. They falsely stated that their combined income was $18,000 per month and that appellant’s individual income was $12,400 per month. Appellant misrepresented the nature and size of his business. They delivered three certified checks to Mitchell as a purported $64,000 escrow payment, but these were actually alterations of previously-dated certified checks payable to and from conspirators. A lapsed homeowners’ insurance policy on the house was reinstated by them shortly before the house was damaged by fire. They insured the personal property in the house for $344,000, even though the house was sparsely furnished, and the home for $492,000.

Prior to the fire, the Jacksons reported a fire in the kitchen. Sandra stated that a pan of hot, smoking bacon grease had ignited spontaneously after she left it on the counter. A Fayette County fire chief testified that the fire could not have started in that manner.

Appellant later reported to the police that someone broke into his house, stole several items, attempted to commit arson by severing gas lines in the basement, and wrote a racial epithet on a piece of plywood in the basement. There were no signs of forced entry.

Within one week, the fire occurred. Again, a racial epithet was written in the house. Again, there were no signs of forced entry. The Jacksons filed an insurance claim.

A neighbor testified that the house was always bustling with activity but was vacant on the weekend of the fire, and that shortly before the fire, a pickup truck was loaded with household effects as though someone was moving in or out. Long-time black residents in the neighborhood testified that there had. been no racial problems.

1. Appellant' enumerates error in the admission of documents from the Jacksons’ mortgage loan package over objection that the State had not laid a proper foundation under the business records exception to the hearsay rule, OCGA § 24-3-14.

An employee of GE Capital Mortgage Services testified that GE purchases mortgages from loan originators, such as Ameristar with whom GE has a correspondent relationship, and sells the mortgages in the secondary mortgage market. Ameristar transferred the Jack-sons’ mortgage on the Camelot Drive residence to Travelers Mortgage Services, and GE acquired Travelers. In her capacity as a GE employee, one of the witness’ duties is to review loan packages and verify the accuracy of information contained in the documents. The witness reviewed the Jacksons’ mortgage to determine if it was acceptable for sale in the secondary market and rejected it because of numerous irregularities.

Citing Martin v. Baldwin, 215 Ga. 293, 302 (2d) (110 SE2d 344) (1959) and Moore v. State, 154 Ga. App. 535 (268 SE2d 706) (1980), appellant argues that these documents were business records of Ameristar, which required the testimony of an Ameristar employee and were not admissible as business records of GE simply because they were contained in its file.

Martin held that records of the Defense Department produced from a file of the Veterans’ Administration (VA) were not admissible as business records of the VA, as they were not offered as a memorandum or record of an act, occurrence, or event of the VA and there was no proof that they were records of the Defense Department made in the regular course of its business.

Moore held that letters by the VA to the Department of Family & Children Services (DFACS) were not admissible as business records of DFACS without proof that the records were made in the regular course of VA business, although there was proof that the documents were kept in the regular course of DFACS business.

The GE employee’s testimony authorized the trial court to find that the documents in this loan package were made in the regular course of Ameristar’s business. The employee testified that she acquired the documents in the loan package in the normal course of business and that the documents in the package are maintained by her in the normal course of business.

This case is thus more akin to Lewis v. United California Bank, 143 Ga. App. 126 (1) (237 SE2d 645) (1977), aff’d 240 Ga. 823 (242 SE2d 581) (1978), and Childs v. Logan Motor Co., 103 Ga. App. 633, 634 (1) (120 SE2d 138) (1961), than Martin and Moore. Lewis and Childs allow the records of one business to be admitted as business records of another business where routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business. Lewis, supra, 240 Ga. at 824 (Bowles, Hall, and Hill, JJ., concurring).

Admission of these documents was not error.

2. Appellant enumerates error in the admission of statements of a C & S National Bank checking account maintained by Sandra McCloud showing a balance of no more than $2,000 or $3,000. This evidence was admitted for the purpose of showing that she did not have the funds she and appellant represented they had in the mortgage loan application.

Appellant objected on grounds that the evidence was irrelevant and immaterial in that appellant and not Sandra McCloud was on trial. However, the indictment alleged that Sandra Jackson was also known as Sandra McCloud, and the name Sandra McCloud appeared on one of the original certified checks which was altered so as to make it falsely appear that the Jacksons had made escrow payments. The indictment alleged that the Jacksons’ falsification of the loan application was one of the conspiracy’s overt acts. The bank statements were relevant to show that appellant’s co-conspirator committed that overt act. It was thus admissible against appellant, since each of the participants in a conspiracy is responsible for the acts of the others. Causey v. State, 154 Ga. App. 76, 79 (2) (267 SE2d 475) (1980).

3. Appellant enumerates as error the court’s refusal to declare a mistrial after the State introduced evidence that appellant had failed to file state income tax réturns from 1980 until 1990. This evidence tended to establish that appellant did not have the income stated by him on the mortgage loan application. Appellant argues that this also established his commission of an independent crime and impermissibly placed his character in evidence.

Appellant also complains of the court’s refusal to declare a mistrial after a witness testified that appellant and his wife were having marital problems and appellant had told him that before he would let her leave him in debt, “I’d shoot her, set all this s_on fire.” This evidence showed a prior threat by appellant to commit arson and another motive for committing the crimes. Appellant argues that this evidence impermissibly placed his character in issue.

“ ‘ “Evidence relevant to an issue in the case is not rendered inadmissible because it may incidentally impugn the character of an accused where character is not otherwise in issue.” (Cits.)’ (Punctuation and citations omitted.) [Cit.] ‘What is forbidden is the State’s introduction in the first instance of evidence whose sole probative value is that it tends to show a defendant’s bad character. (Cit.)’ [Cit.]” Turner v. State, 202 Ga. App. 799, 801 (2) (415 SE2d 524) (1992); see Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992) (evidence of motive is admissible even if it incidentally places the defendant’s character in issue).

It was not an abuse of discretion to admit the evidence or deny the requests for a mistrial.

4. The next enumerated error is the admission of certified copies of a security deed from the Jacksons to Ameristar and an assignment of Ameristar’s rights in the security deed to Travelers.

Appellant argues that although the certification by the superior court clerk is proof of the genuineness of the documents, there was no proof that his signature on the security deed was genuine, and without such proof this evidence was immaterial. Appellant maintains that such proof was required by OCGA § 24-7-5. The security deed and other documents were admissible under OCGA § 24-7-20 based upon the clerk’s certification alone, eliminating this objection to materiality.

5. Appellant contends that the court erred in failing to direct verdicts of acquittal in light of the insufficiency of properly admitted evidence tending to prove the State’s case.

There was ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Mason v. State, 199 Ga. App. 691, 693 (1) (405 SE2d 747) (1991).

6. Enumerated as error is the court’s alleged failure to properly administer the OCGA § 15-12-164 voir dire questions to prospective jurors, by not first identifying the accused and the charges against him to two panels.

After the prosecuting attorney asked voir dire questions of the first panel of prospective jurors, appellant complained that counsel had asked whether the prospective jurors had formed any opinion as to the guilt or innocence of the accused without informing them of the charges. The court stated, “I just told them,” but that is not reflected in the record. The record does show that after the statutory questions were administered to all the remaining three panels, the court informed all but one of them of the charges against appellant and asked if they had any knowledge concerning the charges. The court failed to do this with respect to the third panel, but appellant raised no objection.

Conduct of the voir dire is within the discretion of the trial court, Anderson v. State, 148 Ga. App. 683 (2) (252 SE2d 187) (1979), bounded by the law. “[F]or many years these statutory questions had to be propounded to the jurors individually and that was the limit of interrogation to which a juror could be subjected as a matter of right. [Cits.]” Arnold v. State, 236 Ga. 534, 539 (6) (224 SE2d 386) (1976). In 1951 the law was amended to allow the statutory questions to be put to the jurors as a group and to give both state and defendant the right to individual examination after administration of a preliminary oath to the panel and the asking of the usual voir dire questions. Ga. L. 1951, p. 214, § 2.

Appellant was afforded the opportunity to individually examine all prospective jurors after the statutory questions. The court was not required to inform the prospective jurors of the charges against appellant prior to their individual examination by defense counsel, although it is preferable to give them this context in which to consider the questions and their responses. The limits of discretion were not exceeded in the court’s conduct of voir dire.

7. Appellant contends that the court erred in rejecting his claim of ineffective assistance of hired trial counsel and denying his motion for new trial on that ground. Two instances of ineffectiveness are cited: counsel’s failure to present an alibi witness who would have testified that appellant was at his place of business at the time of the fire, and counsel’s failure to properly investigate exculpatory evidence that the Ku Klux Klan had started the fire.

Trial counsel was not subpoenaed to testify at the hearing on the motion for new trial. Concerning the alibi defense, the court noted that the fire was started by delayed ignition, so an alibi would have been of no effect. The evidence concerning Ku Klux Klan involvement came from appellant’s stepchild who told police that her schoolmate had told her that. The police questioned the schoolmate, and he said he had heard this statement on television. It was made on television by appellant. Since counsel did not testify at the hearing on the motion for new trial, the court ruled, correctly, that it could only assume that counsel determined this would not help the defense and rejected it, and thereby saving the right to close the argument.

On appeal, appellant correctly states that the evidence did not show that the fire was caused by delayed ignition. Nonetheless, “[t]he defendant has the burden of proving ineffectiveness by showing, first, that counsel’s performance was deficient, and, second, that the deficient performance prejudiced the defense. [Cit.] The first inquiry centers on whether counsel’s performance was reasonable under the circumstances in light of the strong presumption that all significant decisions were made in the exercise of reasonable professional judgment. [Cit.] Secondly, even if the presumption is overcome, the defendant must prove ‘that there is a reasonable probability . . . that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Cit.)’ [Cit.]” Dryer v. State, 205 Ga. App. 671, 673 (3) (423 SE2d 297) (1992).

Decided June 25, 1993.

Ballard & Ballard, Scott L. Ballard, John P. Hutchins, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Appellant has not overcome the presumption that counsel’s failure to call the alibi witness was made in the exercise of reasonable professional judgment. The court’s finding that appellant received effective assistance of counsel is not clearly erroneous. Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992). Rejection of such a claim, moreover, need only be based on a finding that appellant failed to establish ineffectiveness. The burden is on appellant to do so, Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992), not on the State to prove effectiveness.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       OCGA § 15-12-133 directs the court to do it.


author: Johnson, Judge.

text:
    A93A0052.
    FINCHER v. DEMPSEY. GARNER et al. v. DEMPSEY.
    A93A0053.
    (433 SE2d 78)
   Johnson, Judge.

Mark Allen Dempsey was injured when the car in which he was a passenger was involved in a collision. Carla Rebecca Fincher, to whom Dempsey was engaged at the time, was driving. Approximately one month after the accident, Dempsey asked Fincher to take him to her insurer, State Farm Mutual Insurance Company, to talk with an adjuster about medical bills which had accrued and lost wages. Fincher waited in the car during Dempsey’s meeting with the adjuster, Clay Garner. Garner offered Dempsey a check for $6,600, which he accepted and later negotiated. It is uncontroverted that at that meeting Dempsey signed a document captioned “RELEASE,” which stated that in consideration of the payment, he released and forever discharged Carla Fincher and policyholder Carl E. Fincher from any and all claims arising from the accident.

Later, Dempsey sued Fincher seeking recovery for personal injuries arising out of the accident. Fincher pleaded the affirmative defenses of release and accord and satisfaction on the basis of the release executed by Dempsey. Dempsey filed a second action against State Farm and Garner alleging that the release was obtained by fraud. Motions for summary judgment were filed by the defendants in both cases. Dempsey asserted that a fact question exists regarding his capacity to enter into the release as a result of the head injuries he sustained in the accident. The trial court denied the motions, and granted certificates of immediate review. We granted the petitions for interlocutory review of the court’s denial of the motions for summary judgment.

“There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby.” (Citations omitted.) Berman v. Rubin, 138 Ga. App. 849, 854 (227 SE2d 802) (1976). “It is well established that a party who can read must read, or show a legal excuse for not doing so, such as an emergency which excused the failure to read; or fraud of the other party not merely as to what is in the document, but by some trick or device which actually prevented him from reading it. [Cits.]” Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986). Dempsey has not shown a legal excuse for failing to read the entire release. He claims that part of the form was obscured by a piece of paper at the time it was presented to him for execution. He admits that he read the exposed portion of the form, but did not ask to see the portion that was obscured. Dempsey has pointed to no evidence showing that Garner actually prevented him from reading the entire document had he asked to do so. The release presented to Dempsey is a one-page document written in plain English and devoid of legal jargon. At several points in its two paragraphs, and in a single line of text which is directly above the signature lines, it repeats that acceptance of payment constitutes a full and final settlement of all claims. It further states that the document has been completely read, fully understood and voluntarily accepted.

“It is clear that no fiduciary relationship exists between one having a claim against an insured and the agent of a liability carrier who seeks settlement of the claim, and a release obtained by him from a party having a claim for damages is binding . . . unless he has prevented the claimant from making investigation of his legal rights in the premises.” (Citations and punctuation omitted.) Riker v. McKneely, 153 Ga. App. 773, 774 (266 SE2d 553) (1980); see also McMullan v. Nichols, 162 Ga. App. 865 (292 SE2d 568) (1982). There is no evidence in the record that Garner prevented Dempsey from making an independent investigation regarding the legal effect of the release prior to signing the document.

We find that the record contains no genuine issue of material fact regarding Dempsey’s capacity to execute the release. In McCoy v. State Farm Ins. Cos., 199 Ga. App. 675 (405 SE2d 743) (1991), summary judgment in favor of the insurance company was affirmed in the absence of facts establishing a disability. Dempsey’s affidavit submitted in opposition to the motions for summary judgment states only that at the time he executed the release he lacked the mental capacity to “appreciate and understand” the release. In his deposition Dempsey stated that he read part of the release before signing it, conceded that he could understand a conversation and recounted many substantive elements of his conversation with Garner. “Tired and groggy” did not constitute a disability in McCoy, supra. Likewise, Dempsey’s contention that he did not appreciate the legal consequences of executing the documents does not constitute the requisite lack of mental capacity which would relieve him of being bound by it. There are no genuine issues of material fact and Clay Garner, State Farm and Fincher are entitled to judgment as a matter of law. The trial court erred in denying both motions for summary judgment.

Decided June 8, 1993 —

Reconsideration denied June 28, 1993 —

Gleason, Davis & Dunn, John W. Davis, Jr., David J. Dunn, Jr., for appellants.

Clifton M. Patty, Jr., for appellee.

Judgments reversed.

Blackburn and Smith, JJ., concur.


text:
    A93A0107.
    JOHNSTON et al. v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (433 SE2d 65)
   Blackburn, Judge.

On June 28, 1991, the trial court granted summary judgment for the Georgia Public Service Commission and other appellees in this action brought by the appellants. The appellants filed a notice of appeal from that grant of summary judgment on the same day. That notice of appeal inadvertently indicated that a transcript would be filed for inclusion in the record on appeal, although no transcript existed because the hearing in the matter had not been reported.

The appellants’ present counsel began representing them around November 1991, after their former counsel withdrew from the case. In March 1992, the appellees moved to dismiss the notice of appeal because of the delay in transmitting the record to the appellate court. At that time, the appellants’ attorney inquired with the clerk’s office of the trial court, and initially was informed that the delay was due to nonpayment of costs. Subsequently, however, the clerk’s office discovered that the costs had been paid in August 1991. It is now undisputed that the sole reason for the delay was the clerk’s office waiting for filing of the non-existent transcript.

Following the hearing on the motion to dismiss, the trial court found that the delay in transmitting the record to the appellate court was unreasonable, inexcusable, and caused by the appellants, and for those reasons dismissed the notice of appeal. This appeal promptly resulted.

Decided May 25, 1993 —

Reconsiderations denied June 10, 1993 and June 28, 1993 —

Richard H. Johnston & Associates, Gregory M. Brown, for appellants.

Michael J. Bowers, Attorney General, Beverly B. Martin, Senior Assistant Attorney General, Roger M. Siegel, Assistant Attorney General, for appellees.

Under OCGA § 5-6-48 (c), a trial court may dismiss an appeal where there has been an unreasonable delay in the filing of the transcript, and the delay was inexcusable and caused by the appellant. With regard to delays in transmitting an appeal record to the appellate court, however, a trial court may dismiss an appeal where the delay was unreasonable, inexcusable, and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.

Inasmuch as no transcript existed because the hearing in the matter was not reported, the instant case actually involves a delay in transmitting the appeal record to the appellate court, rather than a delay in filing the transcript. Under OCGA § 5-6-48 (c), dismissal of the appeal because of the delay in transmitting the record generally would be proper only if that delay was caused by the appellants’ failure to pay costs in the trial court. However, in Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992), where transmittal of the record to the appellate court was delayed because (1) the notice of appeal mistakenly designated that a (non-existent) transcript would be included as part of the record, and (2) the appellant made no effort to expedite the appeal, this court upheld the application of the analysis employed where an appeal is dismissed for failure to file a transcript.

In the instant case, the trial court did not abuse its discretion in finding the length of the delay to be unreasonable. Considering the fact that the mistaken designation in the notice of appeal could have been easily discovered if some attention had been paid to the matter, and that the earliest inquiry about the status of the appeal did not occur until several months after the notice of appeal had been filed, the trial court was also authorized to find that the delay was inexcusable and caused by the appellants. The appellants do not contest the validity of those findings, but merely contend that dismissal of their notice of appeal was error because the delay was not caused by their failure to pay costs. Notwithstanding that payment of costs, Teston controls the instant case, and the trial court properly dismissed the appellants’ notice of appeal.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0153.
    REAM TOOL COMPANY v. NEWTON. FREEBORN TOOL COMPANY, INC. v. NEWTON. DELTA INTERNATIONAL MACHINERY CORPORATION v. NEWTON.
    A93A0154.
    A93A0155.
    (433 SE2d 67)
   Birdsong, Presiding Judge.

This is an appeal of the order of the superior court denying appellants’ motion for summary judgment to Ream Tool Company (RTC), Freeborn Tool Company (FTC), and Delta International Machinery Corporation (DIM) against appellee/plaintiff Karla R. Newton.

Appellee Newton purchased a DIM wood shaper from Stone Mountain Power Tool Corporation (SMPT) for her work shop; the shaper had a spindle guard; appellee knew this particular shaper did not come with cutters. Previously, Newton had worked for about six months at a millwork shop. Although she had never used a DIM wood shaper or a shaper with a similar guard or fences, she had worked with wood shapers at the millwork shop.

The DIM shaper guard had a four-and-one-half inch outer diameter, and was designed to be affixed on the spindle above the cutter. The instruction manual supplied by DIM with the shaper states in bold print: “CAUTION: The diameter of the spindle guard should be at least 1" (one inch) more than the maximum cutting circle of the shaper cutter and the height of the guard should not exceed XA" (one quarter inch) above the material.” Appellee maintains she did not read the portions of the . manual containing this warning.

Appellee did not buy cutters from SMPT, as the DIM shaper was not sold with the specialized cutters she desired. Rather, she subsequently ordered two special cutters from RTC (a mail order cutter supplier), one of these was a “Colonial” cut with a spindle hole of a certain diameter. RTC in turn ordered the cutters from FTC. FTC manufactured an approximate six-inch Colonial cutter (with a so-called “open throat” design) to meet the spindle hole requirements of appellee’s order with RTC; apparently, at no time was FTC requested to produce a cutter having a specified outer diameter. The cutters were sold by FTC to RTC who sold them to appellee. RTC did not make any suggestions as to the size, style, or design of the cutters appellee needed; RTC merely passed the ordering information and sample wood cuts received from appellee to FTC. Appellee subsequently installed the Colonial cutter on the DIM shaper, and placed the four-and-one-half inch spindle guard on top of the cutter, resulting in the bright yellow blades of the cutter extending about one-and-one-half inches beyond the protective range of the orange spindle guard, contrary to the warning contained in the DIM instruction manual. As appellee was operating the shaper with the Colonial cutter, the cutter snatched the wood in a “kickback” action and appellee’s hand was pulled suddenly into the cutter.

Appellee brought a products liability suit averring various grounds of strict liability, negligent manufacturer, and breach of warranty against appellants DIM, RTC, FTC and SMPT. Appellants moved for summary judgment, relying upon the “open and obvious” rule. See generally Weatherby v. Honda Motor Co., 195 Ga. App. 169 (393 SE2d 64). The trial court denied appellants/defendants’ motion for summary judgment. Held:

1. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-movant’s case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). A movant/defendant for summary judgment may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, supra at 491.

2. In her deposition, appellee affirmatively and unconditionally answered that she considered herself as having become an experienced shaper operator from working at the millworks. Subsequently and without explanation, appellee offered evidence at least implying she was not an experienced shaper operator; appellee’s counsel also argues in a supplemental appellate brief that “Ms. Newton was simply not an experienced shaper operator.” As to any unexplained contradiction in appellee’s testimony, Prophecy Corp. v. Charles Rossignol, 256 Ga. 27 (343 SE2d 680) applies.

3. (a) At best only a shadowy semblance of an issue exists (see Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515)) that RTC was the manufacturer of the cutter. RTC merely acted as a “middleman” in procuring the cutters from FTC and selling them to appellee. A cause of action for strict liability can be maintained only against the manufacturer of a product. OCGA § 51-1-11.1. A mere “product seller” is not a manufacturer, and is not liable as a manufacturer on grounds of strict liability. OCGA § 51-1-11.1.

(b) Further, as no genuine issue of material fact exists whether RTC manufactured or designed the cutter, only a shadowy semblance, if any, of an issue of RTC’s liability on grounds of negligent manufacture or design remains. Peterson, supra.

(c) Nor does a genuine issue of material fact exist that RTC negligently sold a defective cutter to appellee. The unrefuted evidence of record establishes that RTC was not aware, either before or when it sold appellee the cutter that the “open neck” or “open throat” design of the cutter might produce a greater likelihood of “kickback” when operated in conjunction with a shaper, or that it would produce a greater likelihood of “kickback” as opposed to a “closed throat” designed cutter. Not being a manufacturer, RTC as a vendor or dealer had no obligation generally to test the cutter. When RTC purchased and sold the cutter in common and general use, in the usual course of trade, without knowledge of its alleged dangerous quality and with nothing tending reasonably to call RTC’s attention thereto, it was not negligent in failing to exercise care to determine whether the cutter was dangerous. Pierce v. Liberty Furniture Co., 141 Ga. App. 175, 176 (233 SE2d 33). Accordingly, RTC could assume the manufacturer of the cutter had done its duty in properly constructing the article and not placing upon the market a commodity which was defective and likely to inflict injury. Pierce, supra at 176.

(d) However, a retailer may be held liable under an implied warranty of merchantability theory for selling a defective product; OCGA § 11-2-314 (2) (c) establishes a concept for retailers parallel to that of OCGA § 51-1-11 for manufacturers. Rhodes v. R. G. Indus., 173 Ga. App. 51, 54 (4) (325 SE2d 465); Pierce, supra at 176. Whether the cutter was defective in view of the Georgia “open and obvious” rule will be discussed in Division 4 below.

4. In products liability cases predicated on negligence, the duty imposed is the traditional one of reasonable care, and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design. Rather, a manufacturer is under no obligation to make a machine accident proof or foolproof, or even more safe. Weatherby, supra at 170; accord Floyd v. Bic Corp., 790 FSupp. 276, 277-278 (N. D. Ga.). A manufacturer is under no obligation to make a machine totally modification-proof. In Georgia, “if the product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril”; in such instances, “the product is not defective as a matter of law.” (Emphasis supplied.) Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 847-848 (2) (321 SE2d 353). Under the Georgia “open and obvious rule” or “patent danger rule” it is provided that “a product is not defective [either in its design or manufacture] if the absence of a safety device is open and obvious, and there is no duty to warn of an obvious danger” or one that is “generally known.” Weatherby, supra at 170, 173; see Gragg v. Diebold, Inc., 198 Ga. App. 823 (403 SE2d 229). Moreover, under the open and obvious rule whether the peril from which an injury results is latent or patent is to be determined by an objective view of the product; the subjective perceptions of the user in this regard are irrelevant. Weatherby, supra at 171; accord Wilson v. Bicycle South, 915 F2d 1503, 1507 (1) (11th Cir.). While in many cases a defense based upon the obvious and common nature of the peril will be a question for the jury, a defendant is entitled to judgment as a matter of law in clear and palpable cases. Weatherby, supra at 173.

The standard whether there has been a breach of warranty by a retailer, like the standard imposed under strict liability upon a manufacturer, is whether the product sold or manufactured was defective. Pierce, supra; Rhodes, supra. In Stodghill v. Fiat-Allis &c., 163 Ga. App. 811 (295 SE2d 183), appellant testified he was an experienced bulldozer operator and knew that absence of a protective cage exposed him to falling trees and limbs, but he never anticipated a tree might spring over the dozer blade and injure him. Nevertheless, this court held that “the failure of the appellees ... to install a protective cage over the driver’s seat . . . was an obvious characteristic of the machine which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed”; accordingly, “it cannot reasonably be considered a design or manufacturing defect under Georgia law.” Id. at 814; compare Wilson, supra at 1507.

When appellee attached the special-order larger cutter to the shaper and secured the small spindle guard over the cutter, the bright yellow blades of the cutter clearly protruded beyond the orange protective covering of the spindle guard. The contrast in colors, the spatial configuration of the guard to the cutter, and the obvious protrusion of the cutter beyond the physical protective limits of the guard, when viewed using an objective standard, results in the following conclusion: that as a matter of law the peril created by appellee’s installation of an oversized cutter without guard modification produced a patent open and obvious danger to any user of the cutter. Moreover, the record establishes that, as a matter of law, both the shaper and the cutter were in and of themselves reasonably safe for the use for which they were intended. Some evidence of record that “kickback” is an unusual occurrence when using a wood shaper would not affect these determinations; neither are our determinations altered by evidence that appellee’s injury may have been the result of the open-throat design on the cutter head which she installed on the shaper. When viewed objectively, the presence of the patent peril created an unequivocal signal of open and obvious danger that any user’s hand might, through any of a myriad of negligent or accidental cutter-operation scenarios, come into contact with and be injured severely by the dangerous, exposed cutter. The presence of this open and obvious danger was adequate to warn the user that use of the shaper with an exposed cutter, regardless of the care taken in such use, could (and in fact did) result in serious injury to the user’s hands. The presence of this open and obvious danger precludes, as a matter of law, any determination of deficiency as to the manufacture or sale of either the shaper or the cutter (without a larger guard), and relieved appellants of any duty to warn. Compare Stodghill, supra; Wilson, supra.

5. We need not address appellants’ assertions that appellee’s use of the shaper without the proper size spindle guard constituted assumption of the risk as a matter of law (see generally Moore v. Service &c. Co., 200 Ga. App. 463 (408 SE2d 480)); neither need we address the sufficiency of the affidavits of appellee’s expert witness, Cipriani.

6. Beam v. Omark Indus., 143 Ga. App. 142 (237 SE2d 607) is factually distinguishable from this case, and involves a “stud gun” which misfired after a foreign power load fell into the open breech chamber, leaving the firing pin in an extended position; the “open and obvious” rule was not addressed in Beam. Stiltjes v. Ridco Exterminating Co., 256 Ga. 255 (347 SE2d 568), cited by appellee, is also distinguishable; this case did not involve plaintiff’s personal use of a product notwithstanding a patent “open and obvious” danger attendant such use. The hazard that objectively was “open and obvious” in this case, as a matter of law, was that if appellee’s hand came in contact with the cutter, through any conceivable manner or for any conceivable reason, it would be severely injured as the cutter conspicuously extended beyond the shaper guard. Compare Weatherby, supra, with Stodghill, supra. We reject appellee’s claim that “each of the series of facts, or links in the chain of events, must be open and obvious in order to justify a defendant’s reliance on the ‘open and obvious’ defense.” Stodghill, supra.

7. We also reject appellee’s claim that FTC should have shipped the cutter with a protective device to prevent the type of injuries she sustained. The cutter, by virtue of the open and obvious rule was not defective as a matter of law; such “[a] product is not rendered ‘defective’ by the patent absence of a specific safety device which would serve to guard against a common danger connected with the limited use of a product, which danger the ultimate user can himself recognize and otherwise guard against.” Fortner v. W. C. Cayne & Co., 184 Ga. App. 187, 191 (2) (360 SE2d 920). A manufacturer is under no duty to render a machine or other item more safe when the danger to be avoided is obvious and patent to all when viewed by an objective standard. See Branton v. Draper Corp., 185 Ga. App. 820, 822 (2) (366 SE2d 206); Weatherby, supra at 171.

8. Appellee’s reliance on J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538 (69 SE2d 816) is misplaced. As stated in Harley v. General Motors Corp., 97 Ga. App. 348, 351 (1) (103 SE2d 191), “in [J. C. Lewis, supra] it was alleged that the plaintiff and her husband did not know that the defect in the tractor rendered it dangerous to operate, whereas in the instant case, it is alleged that the defect in the automobile obviously rendered the automobile dangerous to operate.” In plain and palpable cases, such as this, we may find the existence of an “open and obvious” danger as a matter of law and invoke the “open and obvious” rule. Stodghill, supra; see Weatherby, supra; see also Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 102 (303 SE2d 284) (assumption of risk) (physical precedent only); but cf. Moore v. Powermatic &c. Indus., 738 FSupp. 1188, 1191 (N. D. Ill.) (refusing to dismiss that portion of complaint averring a duty to warn of kickback; but observing that “[t]he more one exposes the blade, the greater its chances of cutting something. . . . The increased risk is obvious”). Moore, supra at 738 FSupp. is factually distinguishable and its results are not compatible, under the attendant circumstances, with the application of an objective standard in determining whether a danger is “open and obvious.”

Also, this court has recognized that use of certain machines, such as firearms, power saws, and perhaps motorcycles, may be considered to be intrinsically dangerous (Branton, supra at 822); this rationale applies to wood shapers. A manufacturer has no duty to warn of common dangers (dangers which are open and obvious when objectively evaluated), connected with the use of these products. See Branton, supra. “In assessing what is obvious, it must be remembered that. . . the American public is not child-like.” Wilson, supra at 1507 (1).

Nor do we find persuasive testimony that, under certain speculative circumstances, appellee’s hand might have been injured by the cutter even if the guard had covered the cutter. Suffice it to say that in such circumstances the danger no longer would have been “open and obvious” as a matter of law. Further, we find unpersuasive Argo v. Perfection Prods. Co., 730 FSupp. 1109 (N. D. Ga.), as this case does not involve an “open and obvious” danger analogous to the circumstances before us. Similarly, Brown v. Apollo Indus., 199 Ga. App. 260 (404 SE2d 447), although instructive, is not controlling as the case at bar involves a danger patently “open and obvious” to any user of the shaper, and not merely “open and obvious” to those having a particular knowledge or expertise due to prior education, training, or experience.

The judgments of the trial court are vacated, and this case is remanded for disposition consistent with this opinion.

Judgments vacated and remanded with direction.

Pope, C. J., and Andrews, J., concur.

Decided June 2, 1993 —

Reconsideration denied June 28, 1993 —

Brennan & Wasden, Joseph P. Brennan, Marvin W. McGahee, for Ream Tool Co.

Brannen, Searcy & Smith, Leesa A. Bohler, for Freeborn Tool Co.

Fulcher FLagler, Reed, Hanks & Harper, J. Arthur Davison, James W. Purcell, for Delta Inti. Machinery Corp.

Edenfield, Stone & Cox, Gerald M. Edenfield, E. Lee Davis, Jr., Hendrix, Murray & Associates, Jerrell T. Hendrix, for Newton.


author: Andrews, Judge.

text:
    A93A0391.
    LEWIS v. SOUTHERN GENERAL INSURANCE COMPANY.
    (433 SE2d 80)
   Andrews, Judge.

Lewis appeals the dismissal of his complaint against Southern General Insurance Company (“Southern”).

Lewis, acting pro se, alleged in the second count of his complaint that Southern failed to pay his insurance claim for damage to his car when “someone cut the tires . . . while the vehicle was parked” on January 19, 1991. After Southern filed its answer alleging insufficiency of service of process and lack of jurisdiction over Southern, Lewis filed his affidavit and return of service contending that service had been effected by certified mail, pursuant to OCGA § 9-11-4 (i).

Lewis contended that coverage was provided under Section D, comprehensive coverage because, by virtue of the “movement” of the car caused by the air escaping from the tires, the car had been momentarily “stolen” and was covered. Southern contended that coverage for this event was excluded by the following language: “Car Damage Coverage does not apply to loss: ... (8) To tires unless damaged by fire or stolen. ...”

On March 23, 1992, Southern filed both a motion to dismiss for insufficiency of service of process and a motion for summary judgment based on the language of the exclusion. The court held that the attempted service by certified mail on Southern, a domestic corporation, was insufficient as a matter of law pursuant to OCGA § 9-11-4 (d) (1). Additionally, the court granted summary judgment to Southern on the exclusion issue.

1. The second and fourth enumerations address the dismissal for insufficiency of service and will be addressed together. Lewis contends service was sufficient because provided for by OCGA § 9-11-4 (i) (alternative means of service); OCGA § 9-10-73 (dealing with a formal acknowledgment of service and waiver of process by a party or counsel) and OCGA § 33-5-34 (dealing with service on foreign surplus line insurers).

OCGA § 33-5-34 does not apply to a domestic primary insurer and further does not provide, even in that situation, for an “alternative manner” of service by certified mail, only an “alternative recipient.” Cheshire Bridge Enterprises v. Lexington Ins. Co., 183 Ga. App. 672, 673 (1) (359 SE2d 702) (1987). “ ‘[Service upon the Commissioner must be perfected in a manner which would be proper if service were made upon a designated agent for service of process.’ [Cits.]” Id.

“The attempted service [by certified mail] was ineffective, . . . and, [the fact] that [Southern] acknowledged receipt of the originally mailed process is immaterial, as the fact he acknowledged receipt in connection with an attempted but invalid service does not suffice to afford the required notice of the action or dispense with valid service. [Cit.] Acknowledgment of service, without an express waiver of process, does not constitute a waiver of valid service of process. [Cit.]” Bailey v. Hall, 199 Ga. App. 602, 604 (2) (405 SE2d 579) (1991).

Since there had been no waiver of this defense by Southern, compare Marsh v. Wright Mem. Mortuary, 197 Ga. App. 736, 737 (1) (399 SE2d 232) (1990) with Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622 (396 SE2d 790) (1990), the court’s granting of the motion to dismiss for insufficiency of service was proper.

2. The fifth enumeration contends that it was error to grant the summary judgment. While the enumeration and argument are somewhat inartfully phrased, we read them to contest the validity of the judgment entered and address them.

Since the defenses addressed supra were not waived by Southern but were affirmatively pursued and since such matters are inappropriate for consideration by means of a motion for summary judgment, Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991), the court’s ruling on the motion for summary judgment was premature and must be vacated. Id.; see also Fire & Cas. Ins. Co. v. Spell, 183 Ga. App. 675, 677 (359 SE2d 705) (1987).

3. The matter addressed by the first enumeration, referral to arbitration, is moot and will not be further addressed.

Judgment affirmed in part and reversed in part.

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

Decided June 8, 1993 —

Reconsideration denied June 28, 1993.

Thomas G. Lewis, pro se.

Wetzel & Carroll, Michael L. Wetzel, for appellee.

       While the third enumeration and corresponding brief, filed by Lewis, pro se, also address claims against the City of Atlanta which were the subject of his first claim alleging an entirely different matter, no legal service is reflected on the city, no appearance was made by it, and no final judgment or other appealable order as to the city is contained in the record, therefore, there is nothing for us to consider regarding the third enumeration of error.