author: Banke, Presiding Judge.

text:
    A90A0859.
    A90A0860.
    GILBERT et al. v. CSX TRANSPORTATION, INC. APAC-GEORGIA, INC. v. CSX TRANSPORTATION, INC.
    (397 SE2d 447)
   Banke, Presiding Judge.

Barney C. Gilbert and his wife, Betty, sued CSX Transportation, Inc., and APAC-Georgia, Inc., to recover for personal injuries sustained by Gilbert during the performance of his duties as a railroad worker for CSX. The accident occurred while Gilbert, who was employed by CSX as a “trackman,” was on the premises of an asphalt plant operated by APAC, attempting to pick up a truckload of asphalt to be used in repairing a grade crossing. His claim against CSX is predicated on the Federal Employers’ Liability Act, 45 USC § 51 et seq. (“FELA”), while his claim against APAC is based on common law negligence principles. His wife, who seeks damages for loss of consortium, has directed her claim solely against APAC, inasmuch as the FELA affords an employee’s spouse no cause of action against the employer under such circumstances. See, e.g., Kelsaw v. Union Pac. R. Co., 686 F2d 819 (9th Cir. 1982).

The loading of trucks at the APAC facility was accomplished by positioning them under a chute from which the asphalt was then discharged. Immediately after the truck in front of him had received its load and had pulled away, Gilbert proceeded forward to position his truck to be loaded. As the hood of the vehicle was passing under the chute, he heard a release of air pressure which indicated that a discharge of asphalt was imminent. He responded by pressing down on the accelerator, but the truck stalled as he did so, either because he let the clutch out too quickly or because of an engine problem. Immediately thereafter, a large quantity of hot asphalt came down the chute, striking the vehicle’s hood, cab and windshield. The force of the impact caused the roof and windshield to collapse, with the result that hot asphalt poured into the passenger compartment where it came into contact with Gilbert and burned him severely.

The loading procedures in force at the APAC plant called for the truck drivers to await a combination horn and hand signal before attempting to drive their vehicles underneath the asphalt chute. It is apparent without dispute that Gilbert was unfamiliar with these procedures and did not await such a signal on the occasion in question. However, there is evidence that his ignorance of these procedures had not prevented him from obtaining truckloads of asphalt at the APAC facility on prior occasions without incident.

Gilbert contends that CSX was negligent in the following respects: In not providing him with a truck equipped with a “cab shield” which would have prevented the cab and windshield from being crushed under the weight of an impact such as the one which occurred; in sending a “trackman” to the plant to pick up the asphalt rather than sending one of its “regularly assigned” drivers; in failing to instruct him as to the proper procedures to follow when obtaining a load of asphalt at the APAC plant; in failing to inspect the plant to determine if its procedures were reasonably safe; and in supplying him with a truck which was not in proper mechanical condition. CSX and APAC filed cross-claims against each other for indemnity and contribution, each alleging that, as between the two of them, the other had primary responsibility for the accident and thus was entirely liable for the damages. The present appeals are from an order granting summary judgment to CSX on the main claim as well as the two cross-claims. The case has been litigated with consuming intensity, the parties having thus far generated a 1,600-page record in the lower court and having filed briefs totalling over 170 pages in this court. Held:

1. In support of his contention that CSX was negligent in not giving him a truck equipped with a cab shield, Gilbert submitted the affidavit of an engineering expert who averred that a properly installed cab shield would have been effective in preventing the asphalt from entering the cab under the circumstances. This witness further averred that it was standard industry custom and practice for trucks which are to be loaded from overhead to be equipped with cab shields or “FOP” (falling object protective) devices. CSX contends on appeal that this latter testimony has no evidentiary value because it was based in part on a regulation promulgated by the federal Occupational Health and Safety Administration (OSHA) — specifically, 29 CFR § 1926.601 (b) (6) — which is applicable only to “construction” activities. However, even assuming, without deciding, that the grade crossing repairs for which the asphalt was to be used did not constitute a construction activity within the contemplation of the OSHA regulations, it certainly does not follow that this witness was prohibited from taking the existence of these regulations into account in reaching his conclusion that industry custom and practice called for the use of a truck equipped with a cab shield under the circumstances. We note that the witness also based his opinion in this regard on the existence of an “S.A.E.” (Society of Automotive Engineers) standard calling for the use of falling object protective devices on transport vehicles designed to be loaded from above. Generally speaking, “[e]xpert testimony as to the practices of an industry is admissible,” Dan Gurney Ind. v. Southeastern Wheels, 168 Ga. App. 504, 506 (308 SE2d 637) (1983), as is expert testimony “as to whether a particular condition is safe or unsafe.” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 679 (278 SE2d 100) (1981). See generally OCGA § 24-9-67. We find CSX’s objections to the admissibility of the opinion testimony in question (which were not, in any event, asserted in the trial court) to be without merit.

2. While CSX concedes that it owed its employees a non-delegable duty under the FELA to provide them with reasonably safe equipment and working conditions, and while it further concedes that this duty extended to work performed on the property of third parties, it contends that, in the absence of evidence showing that there had ever before been a similar accident at the APAC plant, it could not reasonably have foreseen the occurrence of such an accident and thus cannot be held liable for failing to protect Gilbert against it by providing him with a truck equipped with a cab shield. However, if industry custom and practice called for the use of a truck equipped with a cab shield under the circumstances, then it certainly was foreseeable that the failure to adhere to this custom and practice might result in the type of injury which such shields are designed to prevent.

“ ‘ “In order for a party to be liable ... for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. (Cits.)” ’ Milton Bradley Co. v. Cooper, 79 Ga. App. 302, 307 (53 SE2d 761) [1949].” Lewis v. Harry White Ford, 129 Ga. App. 318, 320 (199 SE2d 599) (1973). “ * “The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.” ’ ” Shannon v. Walt Disney Productions, 156 Ga. App. 545, 547 (275 SE2d 121) (1980), rev’d on other grounds 247 Ga. 402 (276 SE2d 580) (1981).

“Under [the FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.” Rogers v. Mo. Pac. R. Co., 352 U. S. 500, 506 (77 SC 443, 1 LE2d 493) (1957). See also Currin v. Seaboard Sys. R. Co., 187 Ga. App. 751 (371 SE2d 142) (1988); Southern R. Co. v. Hamilton, 113 Ga. App. 778 (149 SE2d 842) (1966). We believe that a jury issue remains in this case as to whether CSX was negligent under the circumstances in failing to provide Gilbert with a truck equipped with a cab shield, accord Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647, 650 (9) (347 SE2d 627) (1986); and we consequently conclude that the trial court erred in granting summary judgment to CSX on the issue of its liability to Gilbert under the FELA. We do not decide whether material issues of fact also exist with respect to the remaining allegations of negligence asserted by Gilbert in support of his FELA claim, inasmuch as the trial court’s order does not separately address those allegations.

3. “ ‘ [Concurrent and independent wrongdoers are joint tortfeasors if their actions produce a single indivisible result and a rational apportionment of damages cannot be made.’ (Emphasis from original.)” Phillips v. Tellis, 181 Ga. App. 449 (352 SE2d 630) (1987), quoting Gilson v. Mitchell, 131 Ga. App. 321, 324 (205 SE2d 421) (1974), aff’d 233 Ga. 453 (211 SE2d 744) (1975). Inasmuch as CSX and APAC are alleged to have committed separate and independent acts of negligence which combined to cause Gilbert’s injuries, they are clearly alleged to be joint tortfeasors under this standard. Thus, in the event it is ultimately determined that they are jointly and severally liable to Gilbert on the basis of such separate and independent acts of negligence, and in the event one of them eventually pays more than its share of such liability, that party could assert a claim against the other for contribution under OCGA § 51-12-32 (b). See Goldhill v. Kramer, 122 Ga. App. 39, 40 (3) (176 SE2d 232) (1970). However, since neither of these events has yet occurred, it cannot be determined at this point whether such liability for contribution does or does not exist. It follows that the trial court erred in granting summary judgment to CSX both on its contribution claim against APAC and on APAC’s contribution claim against it.

4. “[U]nder Georgia law ‘if the negligence of the tortfeasor is passive as opposed to active, a tortfeasor can seek indemnity against a party whose conduct is alleged to be the proximate cause of the injury. [Cit.]’ Colt Industries Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251) [1980], reversing in part Coleman v. Clark, 154 Ga. App. 188 (267 SE2d 824) [1980].” Jova/Daniels/Busby, Inc. v. B & W Mech. Contractors, 167 Ga. App. 551, 553 (307 SE2d 97) (1983). We are unable to agree with CSX that its alleged negligence in sending Gilbert to the APAC plant in a truck which was not equipped with a cab shield must, as a matter of law, be considered passive rather than active. Consequently, we hold that the trial court erred in granting summary judgment to CSX on its cross-claim against APAC for indemnification. Accord Seaboard Coast Line R. v. Mobil Chem. Co., 172 Ga. App. 543, 546 (3) (323 SE2d 849) (1984). The cases cited by CSX as support for a contrary ruling are inapposite. The holding in Jones v. Otis Elevator Co., 861 F2d 655 (4) (11th Cir. 1988), upholding a claim for indemnification asserted by a building owner against an elevator maintenance contractor in an action filed against them by an invitee to recover for injuries caused by a negligently maintained elevator, was based on the theory that, as between the two defendants, the duty to inspect and maintain the elevator had been contractually assumed by the maintenance contractor. There was no such contractual assumption by APAC of any duty owed by CSX in the present case. In Colt Indus. &c. Corp. v. Coleman, 246 Ga. 559 (272 SE2d 251) (1980), upholding an indemnification claim asserted by a gun manufacturer against a co-defendant in a personal injury action against them arising from the accidental discharge of a pistol, the claim against the gun manufacturer was based solely on strict liability principles, whereas the claim against the co-defendant was predicated on her alleged active negligence in taking the loaded weapon into a restaurant and dropping it. In the present case, CSX is alleged to be liable on the basis of its own separate and independent acts of negligence rather than on the basis of strict liability principles. Cf. Shackelford v. Green, 180 Ga. App. 617 (349 SE2d 781) (1986), aff’d 257 Ga. 9 (356 SE2d 27) (1987) (employee not entitled to contribution from employer joined as co-defendant in action to recover for injuries caused by employee’s negligence, where employer’s alleged liability was predicated solely on agency principles).

Decided September 4, 1990

Rehearing denied September 24, 1990

Jones & Granger, Gary F. Easom, C. Michael Hardman, for appellant (case no. A90A0859).

Webb & Daniel, Keith M. Wiener, William C. Gentry, for appellant (case no. A90A0860).

Alston & Bird, Jack H. Senterfitt, Gerald L. Mize, Jr., Richard T. Fulton, for appellee.

5. We must reject APAC’s contention that its alleged negligence may be considered merely passive, inasmuch as its conduct in dumping a load of hot asphalt on Gilbert was clearly of the active variety. We consequently affirm the trial court’s grant of summary judgment to CSX on APAC’s cross-claim for indemnification.

Judgment affirmed in part and reversed in part.

Birdsong and Cooper, JJ., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A0885, A90A0886.
    GLEAN v. THE STATE (two cases).
    (397 SE2d 459)
   Sognier, Judge.

Jan Glean was convicted of theft by shoplifting of an item valued at $13.99, a misdemeanor under OCGA § 16-8-14 (b) (1), and filed a notice of appeal on October 12, 1989, with direction that the transcript be included in the record on appeal. That appeal is before this court as Case No. A9ÓA0886. On December 1, 1989 the trial court denied Glean’s November 15, 1989 motion for a continuance for filing the trial transcript, and Glean appeals from that order in Case No. A90A0885.

1. The State moves to dismiss Case No. A90A0885 on the bases either that the order appealed from is not a final judgment or that this appeal falls within the ambit of the discretionary review procedures in OCGA § 5-6-35. We do not agree with either argument. This appeal clearly does not fall within any of the categories set forth in subsection (a) of OCGA § 5-6-35. And “ ‘even though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of (OCGA § 5-6-34 (a) (1)) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the [issue], and leaves the parties with no further recourse in the trial court. (Cit.)’ [Cit.]” Vurgess v. State of Ga., 187 Ga. App. 700-701 (1) (371 SE2d 191) (1988). The State’s motion is accordingly denied.

2. Appellant contends the trial court erred by denying her motion by which she sought to extend the time to file the transcript she had requested. The trial court found that from October 12, 1989, the date the notice of appeal was filed, to December 1, 1989, the date of its order, there was no evidence appellant had requested a transcript from the trial reporter, and further found that the medical condition of appellant’s counsel, which was the asserted excuse for the delay, did not justify extending the statutory period for requesting an extension of time to file the transcript. Although appellant’s counsel states in his affidavit that he was not advised that the transcript “was not being prepared in the time allot[t]ed,” nothing in the affidavits filed by appellant or elsewhere in the record indicates appellant or her counsel ever requested a transcript or an extension of time for filing. The record thus supports the trial court’s finding, and we find no abuse of the trial court’s discretion in denying the motion for an extension of time to file the transcript. See generally Curtis v. State, 168 Ga. App. 235, 237-238 (308 SE2d 599) (1983). We note that no motion was made pursuant to OCGA § 5-6-48 (c), and the trial court never considered dismissing appellant’s appeal based on the failure to timely file the transcript.

3. “ ‘In the absence of a transcript, we cannot consider enumerations of error based on the evidence or proceedings at trial. (Cit.)’ [Cit.]” Dean v. State, 188 Ga. App. 128 (1) (372 SE2d 286) (1988). Therefore, we will not consider appellant’s enumerations 3, 5, 6, and 7.

4. Appellant contends the trial court erred by denying her motion to suppress and motion in limine. The trial court found that a sales clerk at The Body Shop, a mall clothing store in Athens, placed several items of clothing, all on hangers, in a fitting room for appellant. Appellant ultimately purchased a pair of slacks and left the store. The store clerk then discovered that an empty hanger had been hidden among the items not purchased by appellant. The sales clerk alerted the store manager. After a search of the mall, appellant was seen. The Body Shop’s manager approached appellant and asked her to return to the store to discuss the missing item. Appellant agreed and later gave the sales clerk permission to search the bag containing her purchase from The Body Shop. In another store’s bag the sales clerk found a tank top, the property of The Body Shop, which had been wrapped in the shirt appellant had been wearing when shopping at The Body Shop. The trial court found that appellant “explained that she had not paid for the tank top and ‘didn’t mean to do it.’ [Appellant] said ‘let me go and I will pay for it.’ ” The sales clerk denied appellant’s request, asked appellant to accompany her to the back of the store, and sent another store employee to contact the mall security officer and the Clarke County Police Department.

We find no error in the trial court’s ruling on appellant’s motions as to any of the matters enumerated by appellant. Since the warnings required under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) are required only when a law enforcement officer initiates questioning of an individual who has been taken into custody or otherwise significantly deprived of his freedom, id. at 444, we cannot agree with appellant that the sales clerk of The Body Shop was required to inform appellant of her Miranda rights before questioning her. See Grogins v. State, 154 Ga. App. 606, 607 (2) (269 SE2d 98) (1980); R. W. v. State of Ga., 135 Ga. App. 668, 670-671 (2) (218 SE2d 674) (1975). Furthermore, in the absence of a transcript of the hearing we must presume that the rulings of the trial court were correct, see generally Ibietatorremendia v. State, 163 Ga. App. 399 (1) (294 SE2d 646) (1982), and therefore, in view of the finding that appellant consented to the search conducted by the sales clerk, we find no merit in appellant’s argument that the evidence uncovered by the search should have been suppressed. We have carefully reviewed appellant’s remaining arguments on this matter and find them to be without merit.

Judgments affirmed.

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

Decided September 5, 1990

Rehearing denied September 24, 1990

Michael A. Glean, for appellant.

Ken Stula, Solicitor, Kip Shepherd, Assistant Solicitor, for appellee.


text:
    A90A0973.
    SWEETENBURG v. THE STATE.
    (397 SE2d 451)
   Banke, Presiding Judge.

The appellant was convicted of rape and simple assault, but the two convictions were merged for sentencing. He brings this appeal from the denial of his motion for new trial. Held:

1. Construed in favor of the verdict, the evidence as a whole was sufficient to enable a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that he is entitled to a new trial based on the alleged ineffectiveness of his trial counsel. In such cases, “[t]he burden is on the defendant to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 2064, 80 LE2d 674) (1984); [Cit.].” Brown v. State, 257 Ga. 277, 278 (357 SE2d 590) (1987). “In other words he must show there is a reasonable probability that the outcome would have been different, but for counsel’s unprofessional errors. [Cits.]” Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985). “[T]here is a strong presumption that trial ‘counsel’s conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment.’ [Cit.]” Brown v. State, supra, 257 Ga. at 278, citing Strickland v. Washington, supra 104 SC at 2066.

A review of the transcript in the present case reveals that the appellant’s trial counsel competently represented him in presenting his defense, which was that the sex act was performed consensually in exchange for drugs. Counsel vigorously cross-examined the state’s witnesses, presented opening and closing arguments, conducted an adequate voir dire of the prospective jurors, and, at the hearing on the motion for new trial, testified that his failure to object to certain evidence submitted by the state was the result of deliberate trial strategy. Indeed, counsel was sufficiently effective that the appellant was acquitted of three of the five offenses alleged in the indictment. The appellant has failed to establish under the circumstances a reasonable probability that the outcome of the trial would have been different but for counsel’s asserted deficiencies. Accord Thompson v. State, 188 Ga. App. 508 (373 SE2d 292) (1988).

Decided September 4, 1990

Rehearing denied September 24, 1990

Jackson & Schiavone, G. Terry Jackson, for appellant.

3. The appellant contends that the trial court erred in permitting a police officer to testify that the victim did not appear to him to be under the influence of drugs following the incident, over his objection that the witness had not been qualified as an expert in this area. This enumeration of error is without merit. “[I]t is the rule in Georgia that any person may testify, on the basis of personal observation, as to whether another person did or did not appear to be intoxicated on a given occasion.” State v. Golden, 171 Ga. App. 27, 30 (318 SE2d 693) (1984). Furthermore, the officer testified that he had been trained to recognize the manifestations of drug and alcohol intoxication, and it was shown that he had had ample opportunity to observe the victim’s demeanor.

4. The appellant contends that the trial court erred in admitting two photographs of the victim depicting the injuries she had sustained as a result of the assault, where the state had not supplied the photographs in response to his pre-trial notice to produce. “ Tn a criminal case a notice to produce pursuant to OCGA § 24-10-26 . . . may compel the production of books, documents or tangible things in the State’s possession “where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant.” [Cit.]’ Here, the [photographs] were used as evidence on behalf of the state, and were not needed by [the appellant] as evidence in support of his defense.” Gilstrap v. State, 256 Ga. 20, 21 (342 SE2d 667) (1986).

5. The trial court did not err in allowing the state’s attorney to recall the victim in order to establish the element of penetration or in permitting the use of leading questions in this regard. The trial court is clothed with a very broad discretion in allowing the state to recall a witness for the purpose of amplifying previously given testimony. Flynt v. State, 153 Ga. App. 232, 244 (264 SE2d 669) (1980). Likewise, “ ‘[t]he court may, in the exercise of its discretion, permit a party calling a witness to propound leading questions. [Cits.]”’ Hamby v. State, 158 Ga. App. 265 (279 SE2d 715) (1981).

6. We have carefully reviewed the appellant’s remaining enumerations of error and have determined that they likewise establish no basis for reversal.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Spencer Lawton, Jr., District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.


author: Birdsong, Judge.

text:
    A90A1015.
    MARTIN & JONES PRODUCE, INC. v. LUNDY.
    (397 SE2d 461)
   Birdsong, Judge.

Martin & Jones Produce, Inc. (“Martin & Jones”) appeals from the grant of summary judgment to Nell W. Lundy on Martin & Jones’ third-party claim against her for indemnification. Martin & Jones also asserts as error the trial court’s denial of its motion for summary judgment on its claim against Lundy and the denial of its motion to dismiss Lundy’s abusive litigation counterclaim.

The underlying claim was brought against Martin & Jones by a bank to collect on a check signed by Lundy on Martin & Jones’ account at a time when she was Martin & Jones’ sole stockholder. Although some bank error was involved, the complaint alleges that there were insufficient funds in the account to pay the check at the time Lundy signed it and at all times thereafter.

Martin & Jones answered the complaint and filed a third-party complaint against Lundy which contended that she was liable on the claim under the hold harmless and indemnification provisions of a contract of purchase in which Lundy sold all of her stock in Martin & Jones to Max Nisson. Lundy answered and filed a fourth-party complaint against Nisson. After her fourth-party complaint was dismissed, Lundy, without leave of court, filed an abusive litigation counterclaim against Martin & Jones.

Subsequently, Martin & Jones moved to dismiss Lundy’s counterclaim because it was filed without leave of court and moved for summary judgment on liability on its third-party claim against Lundy. After Lundy moved for summary judgment on liability on the third-party claim, the trial court granted Lundy’s motion for summary judgment, and denied both of Martin & Jones’ motions. The trial court based its denial of Martin & Jones’ motion for summary judgment on paragraphs in the purchase agreement providing that Lundy would hold harmless and indemnify Nisson, without mention of Martin & Jones. Martin & Jones now appeals. Held:

1. For Martin & Jones to enforce the hold harmless and indemnification provisions of the contract between Nisson and Lundy, “it must clearly appear from the contract that it was intended for [its] benefit.” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370). Moreover, “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract” (OCGA § 9-2-20 (b)), and a third-party complaint seeking indexnnification may be used for that purpose. Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 800 (165 SE2d 587).

Although the trial court correctly notes that this contract was one between Lundy and Nisson transferring all the stock in Martin & Jones, and that in paragraphs 6 and 12 of the contract Lundy promised to indemnify and hold harmless only Nisson and not Martin & Jones, the inquiry does not end. Paragraph 4.0 (assumption of liabilities) of the contract provides that other than debts for certain vehicles and certain liabilities to be listed and assumed by Lundy and certain contingent liabilities which were also to be listed and assumed by Lundy, Martin & Jones had no liabilities. This paragraph also provides that, with the exception of the listed liabilities and that on the vehicles, “the [c]ompany shall have no liability as of the closing. . . .”

Further, paragraph 4.1 also acknowledges Martin & Jones’ contingent liabilities and involvement in certain litigation and provides that Lundy would at closing assume all existing contingent liabilities and would “indemnify [Martin and Jones] and [Nisson] for all loss, cost, and expense associated” with the contingent liabilities and litigation. Because of Lundy’s explicit promise to indemnify Martin & Jones for all loss, cost, and expense associated with the contingent liabilities and litigation, we find that it clearly appears from the contract that Martin & Jones was intended to benefit from the contract and, therefore, Martin & Jones could enforce a claim under this provision of the contract against Lundy. OCGA § 9-2-20 (b); Backus v. Chilivis, supra.

Since the bank’s claim existed prior to the contract of purchase and sale, it would appear the claim would fall under the provisions of paragraph 4.1, but nothing in the record proves that this claim, in fact, was encompassed within that paragraph. Therefore, while it was error for the trial court to grant summary judgment to Lundy on this claim, it was not error to deny Martin & Jones’ motion for summary judgment because it failed to establish its entitlement to judgment on this claim as a matter of law. See OCGA § 9-11-56 (c) and (d).

2. Although Martin & Jones is correct that OCGA § 9-11-13 (f) provides that leave of court is necessary before a pleader may set up an omitted counterclaim, permitting such a counterclaim is within the discretion of the trial court (White v. Fidelity Nat. Bank, 188 Ga. App. 539, 540 (373 SE2d 640)), and the court should be liberal in allowing such claims where no prejudice would result. White v. Fidelity Nat. Bank, supra; Blount v. Kicklighter, 125 Ga. App. 159, 161 (186 SE2d 543). Therefore, under the facts of this case, the trial court did not err by denying Martin & Jones’ motion to dismiss the omitted counterclaim, and in effect, granting its permission to amend Lundy’s counterclaim.

Decided September 5, 1990

Rehearing denied September 24, 1990

John G. Haubenreich, for appellant.

Edwin K. Palmer, John L. Watson, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1027.
    GUESS v. THE STATE.
    (397 SE2d 453)
   Banke, Presiding Judge.

The appellant was convicted of trafficking in cocaine based on the discovery of approximately 1.5 kilograms of cocaine in an article of luggage he had carried onto a bus. His primary contention on appeal is that the trial court erred in refusing to suppress the contraband as the fruit of an unlawful search.

While waiting at the Greyhound Bus Station in Atlanta to board a bus bound for New York City, the appellant attracted the attention of a uniformed, off-duty Atlanta police officer who was working an “extra job” at the bus station as a security guard. At trial, this officer testified that the appellant caught his attention because he was wearing a long leather coat which seemed inappropriate for the warm weather, he had on a “large amount of gold jewelry,” he stared at him “constantly” as he (the officer) moved about the waiting room, and he seemed unwilling to release his grip on a black zippered bag which he was carrying. Suspecting on the basis of these observations that the appellant might be a drug courier, the officer alerted the narcotics division of the police department, which dispatched two detectives to investigate. One of these two detectives, by the name of Tripp, was the sole witness at the hearing on the motion to suppress.

By the time the narcotics detectives arrived, the appellant had boarded his bus in preparation for its scheduled departure. After conferring with the security officer, the two detectives also boarded the bus, while two uniformed policemen stood guard at the doorway of the vehicle. Detective Tripp testified that he began walking down the aisle upon entering the bus, identifying himself to each of the individual passengers and communicating with them as follows: “As I identified myself, I would ask them did they have baggage on the bus. Each person responded to me either yea or nay. At that time, I would ask them do they have baggage overhead. Each person would respond to me. I continued in that manner asking each individual person did they have baggage, and if they would not mind, would they please identify it to me. Each person did so.” The detective stated that the appellant, who was seated approximately three-fourths of the way down the aisle, responded to the initial question in the affirmative but then, upon being asked to identify which of the bags in the overhead baggage compartment belonged to him, changed his mind and asserted that he did not have any luggage.

Detective Tripp testified that he proceeded on down the aisle questioning the remaining passengers following this exchange with the appellant but then returned to him after reaching the end of the bus, removed a black bag from the luggage compartment above him, and “again” asked him if it was his. He testified that the appellant replied that it was not, whereupon he (the detective) held the bag up and “did a complete three hundred sixty degree turn in the aisleway of the bus, asking . . . would anyone please claim or identify this baggage.” When no one did so, he announced that he was going to consider the bag abandoned and remove it from the bus. He stated that he then took the bag outside, removed a shoebox wrapped in duct tape which could be seen protruding from the bag, opened it, and discovered the cocaine inside. The detective’s account of his actions on board the bus was at variance in significant respects with that of the security officer, who, as already indicated, testified during the trial but did not testify at the hearing on the motion to suppress. However, the appellant did not renew his motion to suppress or object to the admission of the contraband during the trial on the basis of the security officer’s testimony. Held:

1. “Whether a given contact between the police and citizens constitutes a ‘seizure’ within the meaning of the Fourth Amendment — and, if so, is ‘reasonable’ — is determined by ‘balancing the government interest involved against the nature of the intrusion on the individual.’ (Cits.) . . . Balanced against the interest of the individual [to be free from arbitrary interference by law enforcement authorities] is the very substantial interest of government in terminating the widespread and proliferating practice of trafficking in illegal drugs.” Bothwell v. State, 250 Ga. 573, 575-6 (300 SE2d 126) (1983), cert. den. 463 U. S. 1210 (103 SC 3545, 77 LE2d 1393). Accord Florida v. Rodriguez, 469 U. S. 1 (105 SC 308, 83 LE2d 165) (1984).

We hold that the furtive behavior exhibited by the appellant inside the bus terminal provided the security officer with a reasonable and articulable basis for suspecting that he might be transporting illegal contraband. Accord State v. Webb, 193 Ga. App. 2, 4 (386 SE2d 891) (1990). Consequently, even assuming that the circumstances surrounding the questioning of the passengers on the bus were such as to lead a reasonable person in the appellant’s position to believe he was not free to leave the bus at this time, we conclude that the resulting detention was authorized under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), inasmuch as it could be inferred from Detective Tripp’s testimony that the questioning was quite brief and that it was conducted in a deferential and conversational manner.

2. “ ‘The constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned,’ ” Williams v. State, 171 Ga. App. 546, 547 (320 SE2d 389) (1984). Moreover, a finding of abandonment will not be disturbed on appeal if there is any evidence to support it. Id. at 548. Consequently, since Detective Tripp testified unequivocally that the appellant denied any ownership interest in the luggage from which the contraband was seized, the trial court’s decision to deny the motion to suppress must be affirmed. Accord Ramsey v. State, 183 Ga. App. 48, 49 (357 SE2d 869) (1987).

3. The appellant contends that he was entitled to a charge that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. However, such a charge is required only where the evidence relied upon for conviction is entirely circumstantial. Todd v. State, 184 Ga. App. 750, 752 (4) (362 SE2d 400) (1987). There was direct evidence of the appellant’s guilt in this case, in that the cocaine was found in a bag which he had carried onto the bus. While the appellant complains that it is possible someone else might have placed the cocaine inside the bag after he got onto the bus with it, the security officer testified that he had observed the shoebox protruding from the bag while it was in the appellant’s possession in the waiting room. Consequently, this enumeration of error is without merit.

4. The appellant contends that the trial court denied him the right to be represented by retained counsel of his own choosing and instead forced him to go to trial represented by the public defender. An examination of the transcript reveals that the courtroom clerk telephoned the office of the appellant’s retained counsel prior to the commencement of the hearing on the motion to suppress to determine whether he had in fact been hired to represent the appellant and was told that the fee had not yet been paid. However, late that afternoon, at the conclusion of the jury selection process, a representative from the attorney’s office appeared, informed the court that the appellant’s family had just paid the fee, and announced that the attorney would be present in court the next morning to take over the trial of the case. The proceedings were thereupon adjourned for the day, and the retained attorney was present in court the next morning. Although the trial judge declined to release the public defender from the case and instructed him that he would continue to be considered lead counsel, the retained attorney made the opening statement and closing argument, interposed objections, cross-examined the state’s witnesses, and requested jury instructions on the appellant’s behalf during the trial, thus effectively assuming the role of lead counsel. The appellant has not suggested how, under these circumstances, he was harmed by the trial court’s refusal to relieve the public defender as lead counsel; and we do not perceive how he could have been harmed. Accordingly, we find this enumeration of error to be without merit.

Decided September 4, 1990

Rehearing denied September 24, 1990

Mary E. Erickson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1038.
    WAINWRIGHT v. THE STATE.
    (397 SE2d 456)
   Banke, Presiding Judge.

The appellant was convicted of aggravated battery based on his involvement in a fight which ended in a shooting. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in failing to give his requested jury instruction on the right to use force in defense of others. See generally OCGA § 16-3-21 (a). The fight started as an altercation between the victim and the appellant’s younger son, Jimmy, but expanded to involve other participants. While there was little agreement at trial as to what transpired after the appellant arrived on the scene, several of the state’s witnesses testified that he and his older son initially attempted to break up the fight. However, the altercation continued; and the victim ultimately struck Jimmy in the face, dislocating his nose and causing him to bleed profusely. One of the state’s witnesses testified that the appellant and his sons withdrew toward their car at this time but the victim chased after them in a menacing manner and hit Jimmy again, whereupon the appellant brandished a pistol at the victim and then shot him after the victim said, “Old man, you pull that gun on me, you’d better use it.”

The appellant requested a charge on the principle that a person is justified in using force which is intended or likely to cause death or great bodily harm if he reasonably believes such force is necessary to prevent death or great bodily injury to himself or a third person, see OCGA § 16-3-21 (a). The state, on the other hand, requested a charge on OCGA § 16-3-21 (b) (3), which specifies that a person is not justified in using force where he “was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.” The trial judge announced at the charge conference that he would be willing to charge on the right to use force in defense of others only in conjunction with the state’s requested charge on mutual combat. Appellant’s counsel responded: “I prefer not to have that charge if the court is giving me an either/or situation.” The jury was thus charged on the right of self-defense but not on the right to use force in the defense of others.

“If an affirmative defense is raised by the evidence, including the defendants’ own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request.” Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981). See also Johnson v. State, 253 Ga. 37 (315 SE2d 871) (1984). As a jury question existed in this case as to whether the appellant reasonably believed it was necessary to shoot the victim in order to prevent “great bodily injury” to his sons, and as this was in fact his principal defense at trial, we hold that the trial court erred in failing to give the requested charge.

2. The appellant further contends that, notwithstanding his failure to request such a charge, the evidence required a jury instruction on the principle set forth in Glover v. State, 105 Ga. 597 (31 SE 584) (1898), that a person who is not the original aggressor is under no duty to retreat. In this regard, the appellant relies on the holding in Johnson v. State, supra at p. 39, that “where self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat as set forth in Glover.”

Initially, we note that “self-defense” was not the appellant’s “sole defense” in the present case. Rather, as he so vigorously argued in connection with his first enumeration of error, there was also an issue as to whether he was justified in using force to protect his sons. However, pretermitting whether this would affect his right to a charge on the principle set forth in Glover, we hold that no such charge was required in this case because the issue of retreat was not “raised by the evidence or placed in issue.” In Johnson, the issue of retreat was injected into the case by the state’s attorney when he questioned the defendant as to why she had not run away rather than shooting the victim. In the present case, there was no such questioning or argument by the state’s attorney, nor did the court make any comment suggesting that the appellant may have been under a duty to retreat. Accordingly, we find this enumeration of error to be without merit. Accord Wesley v. State, 177 Ga. App. 877 (2) (341 SE2d 507) (1986), overruled on other grounds, Gilbert v. State, 193 Ga. App. 283, 285 (388 SE2d 18) (1989); Dumas v. State, 173 Ga. App. 227, 228 (326 SE2d 1) (1984).

Decided September 4, 1990

Rehearing denied September 24, 1990.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Jon C. Hope, Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1068.
    KEHAYES v. PETCH.
    (397 SE2d 458)
   Banke, Presiding Judge.

We granted the appellant’s application to appeal an order finding him in contempt for failure to pay certain educational expenses for his handicapped daughter. In 1987, following a jury trial, a divorce decree was entered which required the appellant to pay “$250/month child support” and to “assume 50% of [the child’s] reasonable educational expenses.” In July of 1988, the appellant was held in contempt for failure to pay such educational expenses. The present contempt proceedings similarly involve the educational expense obligation. The appellant admits that he failed to pay any educational expenses at all for the 1989-1990 school year but contends that the amount of his obligation in this regard should have been reduced to reflect a tuition scholarship received by his daughter and that he was also entitled to a deduction from her room and board expenses to reflect the periodic child-support payments he has been making under the terms of the decree.

The total educational expenses incurred by the daughter for the school year in question, including the school’s $12,500 tuition fee, amounted to at least $18,194; and the scholarship amounted to $5,500, leaving a balance of $12,694. No evidence was presented as to the child’s room and board expenses. However, the appellee sought only $6,250, representing one-half of the $12,500 tuition charge. In awarding her this amount, the trial court indicated that “she had . . . at least that or more coming to her,” inasmuch as the child’s additional educational expenses had exceeded the amount of the scholarship. Held:

Decided September 4, 1990

Rehearing denied September 24, 1990

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

1. As the amount the appellant was ordered to pay represented less than 50 percent of the child’s total educational expenses, even after deduction of the $5,500 scholarship, we find the appellant’s contention that he did not receive credit for the scholarship to be without merit.

2. We do find merit, however, in the appellant’s contention that he was entitled to a credit against the child’s room and board expenses for the periodic support payments he had been making. “[W]here a divorce decree requires a husband to pay monthly child support as well as the cost of the child’s attending college or some other educational institution, it is necessary to interpret the decree in order to determine whether: The husband is separately liable for room and board as part of the costs of the child’s attending school, or whether the wife is obligated to pay for the child’s room and board from her monthly child support payments.” Marshall v. Marshall, 247 Ga. 598, 599 (2) (277 SE2d 662) (1981). In Marshall, the Supreme Court, relying on Taylor v. Taylor, 228 Ga. 173 (3) (184 SE2d 471) (1971), and Jenkins v. Jenkins, 233 Ga. 902 (3) (214 SE2d 368) (1975), concluded that where the language of the decree did not explicitly provide otherwise, the father was entitled to credit the monthly support payments against the child’s expenses for room and board while away at school. As the divorce decree in the present case similarly did not specify that the appellant was required to pay the child’s room and board expenses in addition to making periodic support payments, we hold that he, too, was entitled to such a credit. The judgment of the trial court is accordingly vacated with direction that further proceedings be held to determine the amount of room and board expenses incurred by the child during the period at issue, following which the periodic support payments made by the appellant for the same period shall be offset against those expenses.

3. Inasmuch as the evidence demonstrates a complete failure by the appellant to make any payment whatever towards the educational expense obligation, the adjudication of contempt is affirmed.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Birdsong and Cooper, JJ., concur.

Joseph E. Cheeley, Jr., Joseph E. Cheeley III, for appellee.


text:
    A90A1196.
    THE STATE v. RHULE.
    (397 SE2d 556)
   Banke, Presiding Judge.

This is an appeal by the state from the grant of the defendant’s motion to suppress in a prosecution for possession of cocaine with intent to distribute.

At approximately 4:00 p.m. on July 6,1989, Officer Jenkins of the Gwinnett County Police Department received a telephone call from an individual previously unknown to him who professed to know a person named David who was dealing in cocaine. Jenkins testified that the informant expressed a desire to assist the police in stopping David from engaging in this activity and told him that David would be in the parking lot of a certain supermarket later that afternoon with approximately half an ounce of cocaine.

Jenkins met with the informant a couple of hours later in the company of several other officers and was advised by the informant at that time that David would arrive at the parking lot in question at about 8:00 that evening. Accompanied by the informant, the police then set up a surveillance at the location; and at around 8:00 the defendant appeared, driving a vehicle matching the description of the vehicle the informant had said David would be driving. Jenkins testified that after making a circle around the parking lot, the vehicle stopped in an area away from the store and from the other vehicles parked in the lot.

After verifying through radio communication with the informant, who was observing these events from another officer’s vehicle, that “this was in fact the vehicle and person described to me,” Officer Jenkins approached the defendant’s vehicle in the company of another officer and asked him to get out and identify himself. The defendant complied and, asked to state why he was in the parking lot, responded that he was there to meet someone. The officer then conducted a protective patdown of the defendant’s person for the purpose, in his words, of “searching for weapons for my safety and the safety of the other [officers] that were present.” He testified that during the course of this search he felt a hard cylindrical object in the defendant’s pants pocket and removed it, believing it might be “some form of weapon.” It proved to be a tightly rolled plastic baggy containing cocaine. The defendant was placed under arrest on the basis of this discovery. Held:

“[Wjhile an unverified tip from an unknown informant may not supply probable cause for a search or a warrant, if the information carries enough indicia of reliability, it will authorize a forcible stop of a suspect to maintain the status quo momentarily while obtaining more information.” State v. Bassford, 183 Ga. App. 694, 698 (359 SE2d 752) (1987). Although the informant in this case was previously unknown to the arresting officers, he or she met with them personally after the initial telephone communication and therefore was no longer anonymous by the time the search occurred. In addition, the informant was willing to place his or her credibility on the line by accompanying the police to the location where the defendant was to bring the contraband. Under the circumstances, we hold that the informant’s information carried sufficient indicia of reliability to warrant, at the very least, a brief investigatory detention of the defendant. Because a protective patdown search is authorized during the course of such a detention, see Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), we consequently hold that the trial court erred in granting the appellant’s motion to suppress.

Decided September 4, 1990

Rehearing denied September 24, 1990

Thomas C. Lawler III, District Attorney, Thomas N. Davis, Jr., Assistant District Attorney, for appellant.

Pruitt & Britt, Walter M. Britt, for appellee.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1292.
    ATLANTA CASUALTY INSURANCE COMPANY et al. v. CREWS et al.
    (397 SE2d 466)
   Birdsong, Judge.

This is an appeal of the order of the trial court denying appellants’ motion for summary judgment and granting appellees’ motion for partial summary judgment on the issue of whether defendant John Doe was an uninsured motorist as defined by OCGA § 33-7-11 (b) (2).

Appellee Christine M. Crews was injured when the car she was driving was hit by a red pickup truck driven by Richard C. Hewatt. Both Hewatt and a disinterested third-party witness gave testimony by way of deposition that a dark blue, or a black or dark car driven by a John Doe stopped rapidly in front of Hewatt causing him to brake, lose control of his vehicle on the wet street, and crash into Crews.

In her complaint, appellee Crews avers, inter alia, “that a vehicle driven by a ‘John Doe’ defendant wherein both driver and owner are unknown, made a movement which contributed to the [defendant Hewatt losing control of his vehicle.” By way of deposition, appellee Crews testified that “it was raining and I saw a blur come at me and I woke up in the hospital. That’s what I know. ... It was a dark blur. I just saw it out of the corner of my eye coming. ...” She also testified that Mr. Bibb, a disinterested third party, had been identified as a witness in her answers to interrogatories.

Appellants’ sole enumeration of error is that “[t]he trial court erred in declining to find that Christine Crews cannot sustain an action against her uninsured motorist insurance carriers according to this court’s construction of OCGA § 33-7-11 (b) (2).” Held:

1. OCGA § 33-7-11 (b) (2), as amended, pertinently provides: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. In those cases ... in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” (Emphasis supplied.) The last sentence to this Code section was added by the legislature “so as to provide for coverage for accidents caused by unknown motorists where the unknown motorist’s vehicle does not physically contact the insured’s vehicle.” Ga. L. 1983, p. 938, sec. 1.

2. Appellant asserts that this case is controlled by the holding of this court in Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546). The facts of this case are distinguishable from those in Hoffman, and accordingly it is not dispositive of the issue before us. Although the plaintiff in Hoffman filed suit against both the driver who injured her and an unidentified John Doe, she “testified at deposition that she remembered seeing no cars on the road but her own and [the car that actually struck her] from the time she entered the road until the time of the accident, and [plaintiff] did not contend that the collision was caused by an unidentified vehicle which pulled out in front of [the driver who struck her].” Hoffman, supra. Thus, the testimony of the plaintiff in Hoffman tended to repudiate the John Doe averment contained within her pleadings, whereas the testimony of appellant Christine Crews is not incompatible with the material averments in her complaint. This case also is distinguishable from Yates v. Doe, 190 Ga. App. 367 (378 SE2d 739), where no witness was available to corroborate plaintiff’s description of the incident.

3. In Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898), the Supreme Court affirmed this court’s literal reading of OCGA § 33-7-11 (b) (2). Reading the statute literally once more, we find that on its face it requires only corroboration by an eyewitness, regardless whether the witness is an interested party, of the “ ‘description by the claimant of how the occurrence occurred.’ ” Universal, supra. In this case there exist both an interested party witness and a disinterested third-party witness who can establish how the accident occurred.

The sole question remaining for resolution is whether by a combination of her pleadings and testimony by way of deposition, appellant Christine Crews did provide an adequate description within the meaning of OCGA § 33-7-11 (b) (2).

Following the pattern of logic displayed in both Universal, supra, and Hoffman, supra, we find that if the legislature had intended that, as a condition precedent to recovery under an uninsured motorist endorsement, a plaintiff must have been able to tender in open court her own eyewitness testimony establishing the requisite causal connection between the John Doe driver and the accident, “it could have so specified.” Universal, supra at 364.

Further, we do not believe that the legislature intended to create a rule which would arbitrarily preclude coverage, for example, of a victim injured so rapidly or so severely she could not testify as to how the occurrence happened, regardless of the number of competent witnesses available to testify as to the actual involvement of a John Doe driver and his phantom automobile.

Rather, we find that it was the intent of the legislature to create a reasonable rule which would reduce the possibility of fraudulent claims where the phantom vehicle did not cause actual physical contact, while still allowing an innocent automobile victim “coverage for accidents caused by unknown motorists where the unknown motorist vehicle does not physically contact the insured’s vehicle,” but where the claimant’s assertions of a phantom vehicle could be corroborated by an eyewitness. See Ga. L. 1983, supra; OCGA § 1-3-1 (a).

“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter. ...” OCGA § 1-3-1 (b). The word “description” neither is a word of art nor of any particular trade or subject matter significance. A “description” is “a statement, account, or picture in words that describes; descriptive representation; the act or method of describing.” Webster’s Encyclopedic Unabridged Dictionary (1989 ed.).

Interpreting OCGA § 33-7-11 (b) by applying the standard definition of the term “description,” we are satisfied that the appellees/ plaintiffs in this case have at least substantially complied with the requirements of OCGA § 33-7-11 (b), within the meaning of OCGA § 1-3-1 (c), and that accordingly the trial court did not commit error as enumerated.

Decided September 10, 1990

Rehearing denied September 24, 1990

Chambers, Mabry, McClelland & Brooks, James T. Budd, Murray, Temple & Dinges, William D. Strickland, for appellants.

Edgar L. Crossett III, Michael L. Wetzel & Associates, Michael L. Wetzel, for appellees.

Moreover, appellants have elected not to specify for inclusion in the record answers to interrogatories tendered by appellees, which included appellees’ description of the disinterested third party witness. Without access to these documents this court cannot determine whether appellees were in fact in total, rather than substantial, compliance with OCGA § 33-7-11 (b) (2). When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result. See Addis v. Spain, 225 Ga. 609 (170 SE2d 585); Smith v. Smith, 223 Ga. 795 (2) (158 SE2d 679).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge.

text:
    A90A1362.
    EDWARDS v. THE STATE.
    (397 SE2d 559)
   Deen, Presiding Judge.

The appellant, Lawrence Edwards, was convicted of kidnapping with bodily injury, aggravated assault, aggravated sodomy, rape, and use of a firearm in the commission of a felony. On appeal, he contends that the conviction for kidnapping with bodily injury is invalid because the trial court failed to instruct the jury on bodily injury.

In this case, the indictment, which was before the jury, charged Edwards with kidnapping with bodily injury and specified rape as the predicate bodily injury. During the jury charge, the trial court instructed the jury that Edwards was charged with kidnapping with bodily injury, and that if it found Edwards guilty of that offense, the form of the verdict would be “We, the jury, find the defendant guilty on Count 1, kidnapping with bodily injury.” The trial court also defined kidnapping, but omitted any reference to bodily injury in that definition. In its verdict, the jury specifically found Edwards guilty of kidnapping with bodily injury.

In Potts v. Zant, 734 F2d 526 (11th Cir. 1984), a conviction for kidnapping with bodily injury was invalidated, where the jury was uninformed of the necessity of finding “with bodily injury.” Potts, however, is inapposite here, because the trial court did sufficiently inform the jury of that necessary element, and the jury specifically found Edwards guilty of kidnapping with bodily injury. See Messer v. Kemp, 760 F2d 1080 (11th Cir. 1985). The trial court’s failure to define “bodily injury” was not critical, as “the term ‘bodily injury’ is not a phrase which requires an elaborate explanation in order to be understood.” Id. at 1093.

Decided September 4, 1990

Rehearing denied September 24, 1990

Clayton Jones, Jr., James N. Finkelstein, for appellant.

Britt R. Priddy, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.

With regard to Edwards’ contention that there was no evidence that the victim suffered any bodily injury at any point during the incident, we remind him of the victim’s testimony, in which she recounted how Edwards alternated several times between raping her and forcing her to perform oral sodomy. “The rape of the victim of a kidnapping is sufficient evidence of bodily injury to authorize the conviction of the accused for kidnapping with bodily injury to the victim.” Peek v. State, 239 Ga. 422, 427 (238 SE2d 12) (1977).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1367.
    SEARS COMPANY et al. v. WEDDINGTON.
    (397 SE2d 471)
   Banke, Presiding Judge.

The appellee was indicted for one count of theft by receiving stolen property and four counts of forgery in the first degree based on a series of transactions which occurred at a Sears store in Savannah. That indictment was, however, nolle prossed; and he thereafter brought the present action against the Sears Company and the security manager of the Savannah store seeking damages for malicious prosecution. The case is before us on interlocutory appeal from the denial of a defense motion for summary judgment.

The security manager had observed the appellee and a female companion using personal checks belonging to the appellee’s wife to make a series of purchases in the store. On each occasion, the companion would give the cashier a Sears charge card for identification purposes, along with a worn traffic ticket offered in lieu of a driver’s license. After storing the items thus acquired in a station wagon parked outside the store, the couple re-entered the building and proceeded to the electronics department, where they sought to purchase a VCR and a camcorder in the same manner. The security manager confronted them at this point, asked to see their identification, and was shown the Sears card and the traffic ticket. He then went to the telephone to call for a “Comp-U-Check approval.” As he was dialing, he was informed by the cashier that the couple was running down the escalator, whereupon he pursued the appellee and apprehended him. The police arrived soon thereafter and took both him and his companion into custody.

In his affidavit submitted in support of the motion for summary judgment, the security manager stated that his actions were not motivated by any malice or ill will toward the appellee and averred that he had acted “in good faith and under an honest belief that the [appellee] had committed the crimes for which he was charged and subsequently indicted.” The appellants also submitted in support of their motion for summary judgment an affidavit from the district attorney’s chief assistant explaining that the reason the charges against the appellee had been nolle prossed was “because [he] had been convicted of other charges and was sentenced to life imprisonment.”

In opposition to the motion for summary judgment, the appellee submitted his own affidavit averring that he had told the security manager at the time of his arrest that the checks belonged to his wife and that she had given him permission to use them. He further averred that he had urged the security manager to contact his wife to verify this but that the security manager had refused to do so. In an unsworn “statement of material facts” which he contended were in dispute, the appellee explained that the reason he had left the electronics department when the manager picked up the telephone was because he thought the manager was calling his (the appellee’s) wife, whom he did not want to know he was shopping with another woman. He further explained that he believed the manager would discontinue the call if he departed the scene. Held:

The averments set forth in the security manager’s affidavit are amply sufficient to establish that he had reasonable cause to believe the appellee had committed the criminal offenses for which he was ultimately indicted. Furthermore, “[t]he grand jury’s return of the indictment against the plaintiff is prima facie but not conclusive evidence that probable cause existed for the prosecution.” Hill v. Trend Carpet, 154 Ga. App. 446 (268 SE2d 682) (1980). Thus, the burden shifted to the appellee to come forward with specific facts tending to show that probable cause did not exist for his arrest and that the charges against him were instead motivated by malice. See generally Booker v. Eddins, 183 Ga. App. 449, 451-2 (359 SE2d 211) (1987). We do not believe the appellee’s wholly unsubstantiated assertion that his wife had given him-permission to use her checks was sufficient, under the circumstances, to meet that burden. Accordingly, we hold that the trial court erred in denying the appellants’ motion for summary judgment.

Decided September 12, 1990

Rehearing denied September 24, 1990

Bouhan, Williams & Levy, Walter C. Hartridge, Roy E. Paul, Susan B. Paul, for appellants.

Gary N. Weddington, pro se.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1405.
    ANDERSON v. THE STATE.
    (397 SE2d 557)
   Deen, Presiding Judge.

Appellant Anderson and a co-defendant were apprehended following the armed robbery of a Gwinnett County convenience store. The co-defendant, not a party to the instant appeal, plead guilty to charges of armed robbery and possession of a firearm by a convicted felon, and appellant Anderson, on his attorney’s advice, plead guilty to the armed robbery charge. He subsequently decided that he had not been adequately represented and filed a petition requesting appointment of new counsel. Newly appointed counsel filed a motion for withdrawal of appellant’s guilty plea and, after the motion was granted, Anderson was tried and found guilty as charged. He unsuccessfully sought a new trial. After withdrawal of his second attorney, appellant sought and was granted new counsel. This attorney filed an extraordinary motion for a new trial and a motion for supersedeas bond. After denial of both motions (counsel had filed an amendment to the extraordinary motion for new trial, setting forth specifics), appellant sought and was given counsel to represent him on appeal. He enumerates as error ineffective assistance of counsel on his first appeal and the overruling of the paragraphs in his amended motion which alleged that he was given insufficient time before trial for preparing his defense. Held:

1. The record shows that appointed counsel was unable to elicit his client’s cooperation and was therefore allowed to withdraw as counsel of record some months after denial of his motion for new trial based on the general grounds. The record further shows that, three days after entry of the order permitting withdrawal of counsel, the court entered an order appointing new counsel to represent Anderson on appeal, and that this attorney filed on appellant’s behalf a motion for bond and an extraordinary motion for new trial, both of which were denied. In Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988), this court cited the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), for ineffective assistance: (1) counsel’s performance was deficient; and (2) this deficiency prejudiced the defense. Although arguendo appellant’s representation may have been less than perfect, there is no indication in the record that the conduct of appellant’s counsel met the Strickland criteria denoting ineffective assistance. A defendant is entitled not to perfect representation but to “reasonably effective assistance.” See Gabler v. State, 177 Ga. App. 3, 6 (338 SE2d 469) (1985). The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. Griner v. State, 192 Ga. App. 283 (384 SE2d 398) (1990). This enumeration is without merit.

Decided September 4, 1990

Rehearing denied September 24, 1990.

Wayne L. Burnaine, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

2. In his second enumeration of error Anderson avers that the trial court erred by disregarding the paragraph of the amendment to his extraordinary motion for new trial in which he alleges that his first trial was originally set for January of 1989 but then was moved to December 14, 1988, thereby depriving him of adequate time to prepare his case, conduct the necessary investigation, and issue appropriate subpoenas ad testificandum.

The record shows that appellant was indicted April 13, 1988; entered a guilty plea June 10,1988; withdrew his plea and filed a discovery motion October 26, 1988; was served by the State on November 28, 1988, with a copy of waiver of rights and statement, and on December 12 with a list of witnesses; and was tried on December 14, 1988. Thus appellee had known at least since October 26 that he would be tried and that his trial would occur within the foreseeable future; had known since April 13 the nature of the charges against him; had known since at least November 28 some of the evidence against him, and should have known since before his indictment who the witnesses might be expected to be. We find no merit in this enumeration.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1422.
    STYLES v. THE STATE.
    (397 SE2d 574)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery and kidnapping with bodily injury. He brings this appeal from the denial of his motion for new trial. Held:

1. Construed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the appellant guilty of both offenses beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. While the appellant was not charged with rape or sodomy, and while the victim made no assertion at trial that the appellant had raped her, she did testify that he had forced her to perform oral sodomy on him during the course of the events for which he was on trial. In his second enumeration of error, the appellant contends that the trial court erred in refusing to permit him to cross-examine the victim “with a prior inconsistent statement about the alleged rape and sodomy she said had been committed against her. . . .” The argument provided in support of this enumeration of error reveals, however, that it is actually directed to two entirely separate and unrelated rulings by the trial court.

(a) During cross-examination, the victim acknowledged that she had not told anyone about the sodomy when she was taken to the hospital immediately following her ordeal, testifying that the first person she had talked to about it was her psychologist. Appellant’s counsel then asked her, “When was that?” and she responded that she did not know, stating that she had been so humiliated by the experience that it was some time before she was able to discuss it. The state objected at this point on the ground that the appellant was not on trial for sodomy; and the trial judge sustained the objection, whereupon the appellant’s counsel moved on to another subject. Under the circumstances, it is apparent to this court that the trial judge was merely protecting the victim from further interrogation concerning her discussion of the incident with her psychologist. As the transcript reveals that defense counsel was otherwise permitted a full and complete opportunity to cross-examine the victim with respect to her testimony concerning the sodomy, we hold that the court’s ruling in this regard did not result in an improper abridgment of the appellant’s right of cross-examination. See generally Deyton v. State, 182 Ga. App. 73, 74 (3) (354 SE2d 625) (1987).

(b) The victim acknowledged during cross-examination that the appellant had not raped her on the night in question and further testified that she had not told anyone otherwise. In response to the latter testimony, the appellant’s counsel sought to establish that she had been admitted to the hospital for an abortion approximately two months after the incident and at that time had told three physicians that she had been raped two months earlier by a man who was now in jail. The appellant contends that the trial court erred in refusing to allow him to cross-examine the victim concerning these asserted statements because they conflicted with her testimony that she had not told anyone the appellant had raped her. However, at the time the victim offered the latter testimony, she was discussing what had occurred on the night in question, not what had transpired at the hospital two months later. Thus, her statements to the hospital physicians would not have impeached her testimony at trial, nor were they otherwise relevant to the issues being tried.

Decided September 12, 1990

Rehearing denied September 24, 1990

Alden W. Snead, J. M. Raffauf, for appellant.

Frank C. Winn, District Attorney, David J. McDade, Assistant District Attorney, for appellee.

“Evidence of an impeaching nature must itself relate to a relevant issue in the case. A witness’ possible lack of credibility concerning matters otherwise irrelevant to any issue in dispute does not thereby become material to the case as an issue of impeachment. (Cits.)” E. H. Siler Realty &c. v. Sanderlin, 158 Ga. App. 796 (1), 798 (282 SE2d 381) (1981). Under the circumstances, the trial court did not abuse its discretion in refusing to allow this line of cross-examination.

3. We have carefully considered the appellant’s remaining enumerations of error, which also concern alleged restrictions on his right of cross-examination, and have determined that they, too, are without merit.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1436.
    SMITH et al. v. ALIMENTA PROCESSING CORPORATION.
    (397 SE2d 444)
   Deen, Presiding Judge.

On December 28, 1982, appellant Weeks entered a ten-year lease agreement with appellee in which she agreed to lease a certain tract of land to appellee for $100 per year. At the same time Weeks’ brother, appellant Smith, entered an employment contract with appellee to be manager of the facility that appellee intended to establish on the leased premises. Smith was fired on December 21, 1986, and appellee continued to operate under the lease. On February 27, 1989, appellants filed this lawsuit and asserted fraudulent inducement to enter a contract as one of the counts and argued only this count on appeal. In its answer to the complaint appellee raised the statute of limitation as one of its affirmative defenses. The trial court granted appellee’s general motion for summary judgment without specifying the grounds for its ruling. Weeks and Smith appeal that order. Held’.

Decided September 4, 1990

Rehearing denied September 24, 1990

Smith, Perry & Epps, Ralph C. Smith, Jr., for appellants.

Lambert, Floyd & Conger, L. Catharine Cox, Kilpatrick & Cody, H. Quigg Fletcher III, for appellee.

The statute of limitation effectively barred appellants’ lawsuit, and we must affirm the trial court’s order on the basis that it was right for any reason. State v. Speir, 189 Ga. App. 254 (375 SE2d 298) (1988).

In Sears, Roebuck & Co. v. Green, 142 Ga. App. 770, 772 (237 SE2d 10) (1977), this court held that the four-year statute of limitation contained in Code Ann. § 3-1002 (now OCGA § 9-3-31) was applicable to a claim of fraudulent inducement to enter an express, written contract, and that the statute began to run upon execution of the contract. The court noted that Code Ann. § 3-807 (now OCGA § 9-3-96) was an exception to this general rule that when a plaintiff is “debarred or deterred” from filing suit because of a defendant’s fraud, the statutory period commences once the plaintiff discovers the fraud.

In the case sub judice, the statute of limitation bars the appellants’ action under both the general rule and the exception. It is undisputed that the lease and employment contract were executed on December 28,1982. The appellants did not file this lawsuit until more than six years later, clearly untimely under the general rule. Assuming, arguendo, that appellee’s fraud did debar or deter appellants from bringing this action, appellant Smith, by his own admission, was aware of this alleged fraud in 1983. Smith testified at his deposition that after a confrontation with one of his supervisors during his first year of work at Alimenta, “I got the distinct impression right then that he would have fired me that morning if he could have ... So I felt like I was set up. All they wanted from me was the land to put the place on.” Therefore, even under the exception provided in OCGA § 9-3-96, the statute of limitation began to run in 1983, and the appellants’ action was not timely. Id.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A1514.
    ROGERS v. SCHUMAN-MANN SUPPLY COMPANY, INC. et al.
    (397 SE2d 463)
   Deen, Presiding Judge.

Jimmy Mason Rogers died in a one-vehicle collision when his truck left a road in Conyers, Georgia, and struck a loading dock of a building leased and operated by the appellee, Schuman-Mann Supply Company, Inc. No one witnessed the collision, but an individual, who was working on his truck approximately 200 feet away, heard the crash, looked up, and saw a white car straddling the centerline near the scene of the collision. The white car drove off hurriedly when this individual waved to it for help. There was no evidence of any physical contact between Rogers’s truck and any other vehicle, and no skidmarks. Tests of blood taken from the decedent showed high levels of Valium and marijuana.

Rogers’ father as administrator commenced this wrongful death action against Schuman-Mann, the City of Conyers, and Georgia Farm Bureau Mutual Insurance Company as an uninsured motorist carrier. The City of Conyers eventually was dismissed as a party, but the remaining defendants were granted summary judgment, and this appeal followed. Held:

1. The trial court granted summary judgment for the uninsured motorist carrier because there was no eyewitness corroboration of the description of the collision, which was required in the absence of actual physical contact, under OCGA § 33-7-11 (b) (2). Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546) (1989). The theory of the collision, as propounded by an expert witness for the appellant, was that Rogers swerved to avoid the white car, which must have been pulling out onto the road, and consequently struck the loading dock. The testimony of the individual who heard the crash, and who looked up and saw the white car, was insufficient to corroborate the description of how the incident occurred, and the trial court properly granted summary judgment for Georgia Farm Bureau.

2. Schuman-Mann’s loading dock, which had been in place since at least 1941, was set back less than five feet from the road. Since August 1, 1978, the set-back requirement for new construction in the City of Conyers has been 25 feet, but that zoning ordinance did not apply to the loading dock because of its pre-existing status. The evidence also showed that Rogers had driven up and down the street past the loading dock for several years. There had been no prior accidents involving the loading dock.

As noted by the trial court, since the loading dock encroached upon the public right-of-way, the legal status of Rogers at the time of the collision was that of licensee. “ ‘An owner owes to a licensee no duty as to the condition of the premises . . . save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm.’ [Cit.]” Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331) (1968). As indicated in the Restatement of the Law (2d), Torts, § 342, “[a] possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” See Bragg v. Missroon, 186 Ga. App. 803, 804 (368 SE2d 564) (1988).

Schuman-Mann obviously did not wilfully injure the decedent, and we do not believe the loading dock can reasonably be described as a hidden peril. There was nothing hidden about the loading dock; it was easily viewed from the road, and the decedent had driven by the dock many times over the past several years. There also was nothing hidden about the risk of injury upon colliding with such a concrete structure. Under these circumstances, as a matter of law there was no basis for subjecting Schuman-Mann to liability for the fatal collision.

3. Prior to being dismissed from the action, the City of Conyers filed two motions for protective orders to prevent unduly burdensome discovery and sought attorney fees for having to file such motions. After finding that the discovery requests made by the appellant, which included production of 40 years’ worth of public records, taking the deposition of city employees a second time, and taking the deposition of an investigator and production of the investigative file, were unreasonable or involved work product, the trial court awarded the City of Conyers $1,317.50 attorney fees. We find no abuse of the wide discretion possessed by the trial court in such discovery matters. Cf. Bridges v. 20th Century Travel, 149 Ga. App. 837 (256 SE2d 102) (1979).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

It is conceivable that a person in close proximity to a collision might not be an eyewitness to the moment but might hear the sound of impact and, looking, see a damaged car drive away, leaving another damaged car behind. That person may have seen the victim’s car shortly before the collision, with no damage. Although this person’s testimony would obviate the fraud secured against by the requirements of OCGA § 33-7-11 (b) (2), it would not supply the narrow type of corroborative evidence specified. Eyewitness means “one that sees or has seen an occurrence or an object with his own eyes and so is able to give a firsthand report on it.” Webster’s 3d New Inti. Dictionary (unabridged). “Eyewitness” cannot be judicially expanded to include “earwitness” or other sensory perception witness.

Decided September 6, 1990

Rehearing denied September 24, 1990

L. Thomas Cain, Jr., for appellant.

McClain & Merritt, William S. Sutton, Drew, Eckl & Farnham, Nena K. Puckett, Theodore Freeman, McKenzie & McPhail, Donna O. Willis, Fain, Major & Wiley, Thomas E. Brennan, Greene, Buckley, DeRieux & Jones, Francis C. Schenck, for appellees.

Even if such an elasticized meaning were given to the word by judicial interpretation based on the underlying purpose of the statutory provision, it would not aid plaintiff in this case. The sound he heard was not of the decedent’s vehicle colliding with the phantom vehicle but rather with the loading dock. The sound did not connect the allegedly negligently-driven car with the wreck from which it emanated.


author: Beasley, Judge.

text:
    A90A0902.
    EASTERN AIRLINES, INC. et al. v. MOSS et al.
    (397 SE2d 445)
   Beasley, Judge.

Travelers Insurance Company sought and was granted review of the superior court’s order reversing in part the award of the Workers’ Compensation Board.

The primary adversaries are Travelers and Georgia Adjustment Bureau, the two insurers. Travelers seeks a determination that the reversal was error, as being contrary to law and conflicting with the any-evidence standard of review.

Moss, the employee, was injured on February 17, 1986, while working at Eastern as an A Agent. At this time Travelers carried the Workers’ Compensation coverage. Moss’s injury was bilateral “carpal tunnel syndrome” involving both wrists. After a short recuperative period, she returned to work as a B Agent with less demanding duties which did not involve typing and stamping and thus less wrist movement.

She continued work apparently without difficulty until December 16, 1987, when she experienced a heavy work day, requiring excessive use of her arms and hands, and was further instructed to perform additional duties as an A Agent. After her shift ended she experienced pain and swelling in her hands. Moss reported the incident and obtained medical treatment but then was terminated by Eastern on December 22. Georgia Adjustment Bureau had coverage at that time. Since then Moss has repeatedly and unsuccessfully sought work.

After a hearing on September 14,1988, the ALJ and Board found that on December 16, 1987, Moss aggravated her chronic carpal tunnel syndrome which resulted in a new injury as of December 22, when she was terminated. Eastern and Georgia Adjustment were directed to pay compensation benefits from that date, as well as medical bills from December 16.

On appeal, reversing the Board in part, the superior court found that on September 14, 1988, Moss had recovered from any aggravation or exacerbation of her pre-existing condition from the injury of December 16,1987. It ruled that Georgia Adjustment should pay benefits from December 22, 1987, to September 14, 1988, and that Travelers should pay from that date forward. In essence, the court determined that Moss suffered a new injury in December 1987 which ceased on September 14, 1988, at which time the February 16, 1986, injury resumed. The Board had confined its findings to the circumstances of December 1987, identifying a new injury, and had not discovered a change of condition as of the date of hearing, September 14.

No issue as to a change in condition on September 14 was presented to the ALJ or to the full Board. Further, the evidence presented at the hearing on that date does not demand a finding that such a change in condition occurred.

The fact that Moss stated that she would be willing to perform an “A Agent” job would not demand a finding that she was not economically disabled. F. & G. Ins. Underwriters v. Raines, 147 Ga. App. 675 (250 SE2d 58) (1978). Whether an employee’s inability to continue working has been caused by a new accident is a question of fact for the ALJ and the Board. Northbrook &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988). Findings of fact by the Board, when supported by any evidence, are conclusive and binding upon the court. Banks v. Royal Globe Ins. Co., 160 Ga. App. 18 (286 SE2d 309) (1981). The superior court is not authorized to substitute its judgment. Department of Public Safety v. Boatright, 188 Ga. App. 612, 614 (373 SE2d 770) (1988). Moreover, neither the superior court nor this court has any authority to substitute itself as the factfinding body in lieu of the Board. Spalding County Comm. v. Tarver, 167 Ga. App. 661, 662 (1) (307 SE2d 58) (1983). As held in General Accident Fire &c. Corp. v. Titus, 104 Ga. App. 85 (121 SE2d 196) (1961): “no court is empowered to substitute its findings of fact for those enunciated by the board.”

Decided September 4, 1990

Rehearing denied September 25, 1990

Irwin, Bladen, Baker & Russell, B. A. Bladen, for appellants.

Hazleton & Sullivan, William L. Hazleton, Sligh, Presmanes & Jackson, Gregory T. Presmanes, James G. Jackson, for appellees.

The evidence does not show, as a matter of law, that Moss had recovered from her former injury. Compare Pierce v. AAA Cabinet Co., 173 Ga. App. 463, 464 (326 SE2d 575) (1985) (where the Board determined that the employee had recovered and this court affirmed a change in condition finding), and McDonald v. Townsend, 175 Ga. App. 811 (334 SE2d 723) (1985). It was error to make a de novo finding that Moss had recovered from her new injury of December 1987 by the date of the hearing in September 1988. Pacific Employers Ins. Co. v. West, 213 Ga. 296, 299 (2) (99 SE2d 89) (1957); Bituminous Cas. Co. v. Dyer, 62 Ga. App. 279, 282 (4, 5) (7 SE2d 415) (1940). As to what constitutes a new injury see Central State Hosp. v. James, 147 Ga. App. 308, 309 (lb) (248 SE2d 678) (1978).

Judgment reversed.

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