text:
    A90A1034.
    TAYLOR v. THE STATE.
    (394 SE2d 597)
   Deen, Presiding Judge.

Trent Taylor appeals from his conviction of rape contending that it was error to admit evidence of a prior offense when the sole issue at trial was whether the victim consented to the act of sexual intercourse. Held:

In support of his position that the prior offense was not admissible, appellant relies upon Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986), which, in turn, relies upon Larkins v. State, 230 Ga. 418, 420 (197 SE2d 367) (1973), for the rule that the similar offenses rule does not apply where the only issue for jury decision is the consent of the prosecutrix. Wimberly, supra at 150, holds only that there must be some logical connection or similarity between the offenses. It did not adopt the portion of the Larkins decision relied upon by appellant. This portion of Larkins was overruled in Hunt v. State, 233 Ga. 329, 331 (211 SE2d 288) (1974); and Thomas v. State, 234 Ga. 635, 636 (217 SE2d 152) (1975). In Thomas the court held that evidence which would show intent, motive, plan, scheme, and bent of mind was relevant as to whether or not the prosecutrix consented to the sexual acts committed upon her by the defendant.

Decided May 14, 1990.

Cedric T. Leslie, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Assistant District Attorney, for appellee.

In the instant case, the evidence showed that the victim lived with her small daughter and was awakened at knifepoint by a man who held a knife at her throat and forced her to submit to sexual intercourse. She recognized his voice and the general shape of his features in the dark as those of a man who worked on one of her work crews. The State presented evidence that several years earlier appellant had broken into the home of another woman who also had a small daughter, and was attempting to force her to have sexual intercourse at knifepoint when the police arrived before he completed the act. This evidence showed intent, motive, plan, scheme, and bent of mind, and was relevant as to whether or not the victim consented to having sexual relations with Taylor.

Judgment affirmed.

Pope and Beasley, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Judge. Banke, Presiding Judge,

license: Public Domain

text:
    A90A0075.
    GARCIA v. THE STATE.
    (394 SE2d 542)
   Birdsong, Judge.

Appellant, Mario Roberto Garcia, appeals his sentence and judgment of conviction for violation of the Georgia Controlled Substances Act by trafficking in cocaine.

Appellant came under the observation of DeKalb County Police Detective Terry Toles as he and other passengers were entering Atlanta International Airport from a plane which had just arrived from Fort Lauderdale, Florida. Toles, a member of a federal task force assigned to interdict drug trafficking at the airport, was monitoring the arrival of the passengers on this flight because he considered Fort Lauderdale to be a “major drug source city.” He testified he stood next to appellant as the latter approached an airline gate agent, overheard him ask, in English, for directions to a connecting flight to Tulsa, Oklahoma, and observed that the name, “Garcia” was written on his boarding pass. Toles then determined from an examination of the airline’s computer records that there was only one passenger on the flight with a connecting reservation to Tulsa and that he was identified as Mario Garcia. Toles further observed that the reservation in question was one way only, that it had been made shortly before the flight’s departure from Fort Lauderdale, and that the ticket had been paid for with cash.'

Believing these latter factors to be characteristics of drug courier activity, Toles decided to confront appellant and thus proceeded, in the company of another officer, to the gate from which the connecting flight to Tulsa was scheduled to depart. Upon locating appellant, Toles identified himself as a police officer, asked appellant if he could speak with him and, after receiving an affirmative response, asked if appellant spoke English. Appellant replied, “Yes, I do,” and at Toles’ request, handed over his airline ticket and driver’s license. Toles inspected and returned the documents to appellant after observing that both documents bore the name, Mario Garcia. Having further observed that there was a baggage claim stub attached to the ticket envelope, Toles then asked appellant if he would “mind cooperating and allow us to search you and your bag.” Toles stated that although appellant “was now visibly shaken as evidenced by his hands quivering and his stomach quivering,” he responded, “Yes, that’s fine.”

Toles left the concourse at this time to find appellant’s bag, assuring him that he “was not under arrest” and was free to “do whatever he wanted there in the airport or wherever,” but also instructing the other officer to “keep an eye on” him. Upon returning with the bag, Toles asked appellant if it was his. Appellant replied in the affirmative and, in response to further inquiry by Toles, elected to have the search conducted “in private” rather than there in the concourse. Appellant accompanied the two officers to a nearby airline office, where he produced a key to the bag at their request. The ensuing search of the bag resulted in the discovery of approximately 3,500 grams of 84-percent pure cocaine. Appellant admitted that he had been paid $2,000 to take the bag to Tulsa from Fort Lauderdale but testified he had been told it contained marijuana and had not realized it contained cocaine until it was opened by the officers. Held:

1. “[T]he State has the burden of proving that the necessary consent was . . . freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U. S. 491, 497 (103 SC 1319, 75 LE2d 229).

The evidence of the suppression hearing and of the trial shows that the defendant consented to the search of his luggage after the law enforcement official had tendered proper identification, and that appellant subsequently elected to have the search done in a private room in the airport.

In denying the suppression motion, the trial court found as a fact that appellant affirmatively responded to the question of whether he would allow a search of his bag; the trial court also found that appellant “did understand English, at least to the extent that he knew what he was doing and what was going on and participated in the conversation at the airport.” Compare Pupo v. State, 187 Ga. App. 765, 767 (4) (371 SE2d 219) (Pupo responded in the affirmative without revealing any language difficulties).

Moreover, inherent in the trial court’s findings supporting denial of the suppression motion is the finding that appellant’s consent to search was made voluntarily.

A trial court’s decision of questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). Examination of the record in toto reveals no basis for reversal of the trial court’s findings of fact. Additionally, we are satisfied that the State met its burden as required by Florida v. Royer, supra, albeit barely, of establishing that appellant’s consent was freely and voluntarily given.

Appellant adequately understood English; the conversation with the law enforcement officer was conducted in normal voice tone and in an open manner; appellant made no attempt to terminate the conversation or to leave; no coercion or threats were made to appellant; weapons were not displayed; although apparently kept under surveillance, appellant was expressly informed that he was not under arrest and that he was free to leave; and after consenting to the search, appellant subsequently elected to have the search done in private.

Voluntariness of consent must be determined from all the circumstances (Lombardo v. State, 187 Ga. App. 440 (1) (370 SE2d 503)), and where a valid consent to search exists, the need either for probable cause or a search warrant is eliminated. Id. Applying the applicable law to the facts before us, we find that the record reveals no basis therein for reversal of the trial court’s rulings. The State met its burden of establishing that appellant’s consent was freely and voluntarily given.

2. Appellant asserts that his conviction was against the weight of the evidence and contrary to law, as there was absolutely no evidence that appellant knowingly brought into this State cocaine or that he knowingly was in possession of cocaine.

Knowledge and possession can be proven by circumstantial evidence. To support the verdict circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Appellant’s other assertions are without merit.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Sognier, Pope and Beasley, JJ., concur. Banke, P. J., and Cooper, J., dissent.

Banke, Presiding Judge,

dissenting.

“[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was . . . freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U. S. 491, 497 (103 SC 1319, 75 LE2d 229) (1973).

I must reluctantly conclude that this burden was not met in the present case. While the State’s evidence establishes that the appellant offered no resistance to the officers, made no effort to terminate their discussion with him, and responded in the affirmative when asked to consent to the search of his luggage, there is no evidence which would suggest that he knew or believed he was free to do otherwise. Moreover, the State’s evidence also shows that the appellant was so nervous by the time he gave his consent that his hands and stomach were shaking visibly. Although such behavior no doubt implied that he had something to hide, it also implied rather strongly that he believed he had no practical alternative but to cooperate with the officers.

“ ‘ “Courts indulge every reasonable presumption against waiver” of fundamental constitutional rights.’ Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact. United States v. Page, 302 F2d 81, 83-84 (9th Cir. 1962) (footnotes omitted).” Shaibu v. United States, _ F2d _ (9th Cir. 1990). Accord Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975).

Where the issue would otherwise be in doubt, evidence that an accused was informed of his right to refuse to give his consent will often “assuage the fear of a court that [he] was intimidated into [doing so]. . . .” United States v. Berry, 670 F2d 583, 598 (5th Cir. 1982). Unfortunately, there is no such evidence in the present case. Toles conceded that he never advised the appellant of his right to refuse to permit the search, even though he was carrying in his wallet a “consent to search” card containing the following admonitions to be read under precisely such circumstances: “You have the right to allow or refuse to allow a search to be made of your person and personal property that you have with you. You have the right to consult with an attorney before deciding whether you wish to allow or refuse to allow the searches. If you consent to the searches, any illegal objects found can be used against you in court proceedings. Do you understand?”

Decided April 19, 1990

Rehearing denied May 15, 1990

Maloy & Jenkins, W. Bruce Maloy, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

There is, of course, no absolute requirement that a suspect be given such advice before being asked to consent to a search. “The test is merely a question of voluntariness under the totality of the circumstances.” Code v. State, supra, 234 Ga. at 95, fn. 1. Accord Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). However, where consent searches have been upheld in the absence of such advice, there have normally been other circumstances indicative of voluntariness on the defendant’s part. See, e.g., Castro v. State, 186 Ga. App. 248 (1) (367 SE2d 42) (1988) (where defendant acknowledged in open court that he had given his consent freely and voluntarily); Noland v. State, 178 Ga. App. 486 (343 SE2d 763) (1986) (where idea for search originated with defendant). Because no such circumstances were shown in the present case, I would hold that the trial court erred in denying the appellant’s motion to suppress. Accord Miranda v. State, 189 Ga. App. 218 (375 SE2d 295) (1988).

I am authorized to state that Judge Cooper joins in this dissent.


author: McMurray, Presiding Judge.

text:
    A90A0219.
    SHRADER v. HOPKINS et al. SHRADER v. EVANS et al.
    A90A0220.
    (394 SE2d 538)
   McMurray, Presiding Judge.

On November 16, 1988, plaintiff, an inmate at Metro Correctional Institute (“Metro”), brought this action pro se against David C. Evans, Commissioner of the Department of Corrections, Mary Esposito, Metro’s warden, Grady Lewis, Metro’s former warden, Hugh Brown, Metro’s deputy warden, William Hopkins, M.D., medical director of the Department of Corrections, Nathaniel A. Lopey, M.D., a physician, and France Grace Ward, a nurse. In his complaint, plaintiff sought damages for alleged medical malpractice and, pursuant to 42 USC § 1983, for alleged civil rights violations resulting from constitutionally improper medical care. In particular, plaintiff alleged that, on November 3, 1986, he fell and broke his ankle at Metro and that, thereafter, he received improper treatment at the hands of defendants. Defendants answered the complaint and denied liability.

Decided April 9, 1990

Rehearings denied April 25, 1990 and May 15, 1990

Terry Shrader, pro se.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Daryl A. Robinson, Michael E. Hobbs, Senior Assistant Attorneys General, Sullivan, Hall, Booth & Smith, Terrance Sullivan, Michael A. Pannier, for appellees.

Defendants Hopkins and Lopey separately moved for summary judgment; defendants Evans, Esposito, Lewis and Brown jointly moved to dismiss the complaint on statute of limitation grounds. In support of their summary judgment motion, defendants Hopkins and Lopey submitted affidavits wherein they deposed that, in treating plaintiff, the physicians and health care providers exercised the degree of care and skill exercised by the medical profession in general under similar circumstances; that no act or omission on the part of any physician or health care provider caused or contributed to plaintiff’s alleged injuries; and that no health care provider was deliberately indifferent to any serious medical needs of plaintiff.

The trial court awarded summary judgment to defendants Hopkins and Lopey and it granted the motion to dismiss, in part, ruling that any claims arising prior to November 16, 1986, were time barred. Plaintiff appeals. Held’.

1. The trial court properly applied a two-year statute of limitation to the 42 USC § 1983 claim. Wilson v. Garcia, 471 U. S. 261 (105 SC 1938, 85 LE2d 254). See also Henson v. American Family Corp., 171 Ga. App. 724, 731 (8) (321 SE2d 205).

2. The trial court did not err in awarding summary judgment to defendants Hopkins and Lopey on the medical malpractice claim and the 42 USC § 1983 claim. Johnson v. Jones, 178 Ga. App. 346, 350, 351 (343 SE2d 403). Defendants’ affidavits established that plaintiff’s care and treatment was in accordance with the standard of care exercised by the medical profession and that defendants were not deliberately indifferent to plaintiff’s serious medical needs. Plaintiff presented no expert opinions or facts in rebuttal.

Judgments affirmed.

Carley, C. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    A90A0821.
    FREEMAN v. CITY OF ATLANTA.
    (394 SE2d 784)
   Deen, Presiding Judge.

On November 10, 1988, the appellant, Willie Freeman, was stopped at a routine roadblock in an area known for drug trafficking. City of Atlanta police officers arrested him for failure to prove automobile insurance. The officer searched Freeman and the vehicle and found $7,026 cash, which was presented to the drug dog, Katy, for sniffing. According to Katy’s sniff, the money had traces of contraband drugs, and the police officers turned the money over to the Drug Enforcement Agency (DEA). On January 19, 1989, the DEA commenced a forfeiture proceeding to condemn the money pursuant to 21 USC § 881 et seq., and it does not appear from the record that Freeman ever responded to that petition.

On May 3, 1989, Freeman commenced this action against the City of Atlanta to recover the $7,026 cash, on the basis that the State had not instituted a proceeding to condemn the money within 30 days of its seizure, as required by OCGA § 16-13-49 (e). Freeman moved for summary judgment on the claim, and the City of Atlanta filed its own motion for summary judgment on the grounds that the federal forfeiture proceeding pre-empted such action on the State’s part. Freeman appeals from the trial court’s denial of his motion and grant of the City’s motion. Held:

1. In support of its motion for summary judgment, the City submitted a copy of the police report of Freeman’s arrest, a copy of a DEA report of investigation, including a disposition of non-drug evidence, and a copy of the DEA notice of seizure and forfeiture, along with a copy of the return receipt signed by Freeman and a copy of a notice of the seizure published in a newspaper. Relying upon OCGA § 9-11-56 (e), Freeman contends that this evidence was inadmissible because the copies were not sworn or certified. However, that Code section requires such certification when the copies are referred to in an affidavit, which was not the situation here. Submitting such documents is an acceptable means of presenting evidence in support of a motion for summary judgment. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448 (278 SE2d 40) (1981).

2. Freeman contends that he is entitled to the return of his money because the State never filed a condemnation action within 30 days of receipt of notice of the seizure of the money as required by OCGA § 16-13-49 (e). There is no dispute that the State did not comply with OCGA § 16-13-49 (e), but that non-compliance has no bearing on this case. Both the federal government, under 21 USC § 881 et seq., and the State, under OCGA § 16-13-49, had authority to institute a forfeiture proceeding to condemn Freeman’s money. Had the State been the entity initiating the forfeiture proceeding, its noncompliance with OCGA § 16-13-49 (e) would have resulted in a favorable outcome for Freeman. See State of Ga. v. Luke, 183 Ga. App. 182 (358 SE2d 272) (1987). However, since the federal government brought the forfeiture proceeding, and not the State, OCGA § 16-13-49 (e) has no application in this case. The trial court properly granted summary judgment for the appellee.

Decided April 24, 1990

Rehearing denied May 15, 1990

William T. Payne, for appellant.

Marva Jones Brooks, Overtis H. Brantley, Deborah M. Floyd, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0914.
    In the Interest of H. G. et al., children.
    (394 SE2d 557)
   Deen, Presiding Judge.

Appellant is the 24-year-old mother of four children by three different men. The oldest two, a girl referred to herein as H. G. and a boy referred to as D. G., are the legitimate children of a Houston, Texas, resident, to whom the mother is still legally married, despite the fact that she has had two children by other fathers; the next child, a girl known herein as J. G., is the daughter of a Georgian now serving a felony sentence; and the youngest, also known herein as J. G., is the son of a Gainesville, Georgia, resident.

In the proceedings below the parental rights of the prisoner and the Gainesville resident were terminated on the basis of clear and convincing evidence, in accordance with relevant statutory provisions. The mother’s parental rights were also terminated, on the basis of clear and convincing evidence of deprivation by “her misconduct or inability to provide proper parental care and control, . . . failure to comply with the basic communication and nurture needed, . . . depriving [the children] of herself and ... of their relationship with one another and has basically abandoned the children . . '.[, and] has allowed the deprivation to continue in spite of all of the efforts of [DFCS] to provide services, especially visitation, [and] said deprivation is likely to continue. ...” The juvenile court’s order recites a number of specific instances in which the mother had failed to provide housing for the children, had failed to obtain or hold a job, had left the children with other people (her mother, friends) for indefinite periods of time, had failed to keep appointments set up by DFCS for visitation with the children, and had failed to comply with a plan for the family’s reunion worked out by DFCS caseworkers. The order noted that there was no evidence of intentional physical abuse.

Appellant mother now asserts that the termination of her parental rights was erroneous in that it was based on prior rather than present circumstances. In support of her argument she alleges that she now has a job, has an apartment that would accommodate the four children, and has missed only one visitation appointment between September 1989 and December 1989, or shortly before the entry of the termination order on January 8, 1990, nunc pro tunc for December 4, 1989.

The children’s foster mothers testified to their love for the children and the children’s love for them and for one another. The guardian ad litem stated that it would not be in the children’s best interest to remove them from foster care at this time but expressed the hope that the mother’s recent apparent improvement would continue, and that reunion would ultimately be possible. Appellant asserts that she has “grown up” and that the judgment terminating her parental rights should be reversed. Held:

Appellant alleges that there was insufficient evidence to support the trial court’s finding that her present circumstances and conduct indicate that the deprivation to which her children had been subjected while in her care in the past was likely to continue, so that the children’s best interest would be served if her parental rights were terminated, and they were placed in a stable environment.

We have reviewed the record carefully and find more than a sufficient quantum of evidence to support the judgment below. As the trial court noted in its order, the right of parents to their children is one that is “fiercely guarded” and is not to be taken away lightly. The record of this case, however, contains many pages of painful, pitiful, and poignant instances (in addition to those recited in the court’s order), including criminal fornication, in which the appellant mother, herself a neglected and abused child, demonstrates that she either cannot or will not meet the children’s most basic physical and emotional needs. Regardless of the sympathy that this unfortunate person’s plight may provoke, however, we must uphold the ruling of the trial court that the best interest of the children dictates the result which the mother appeals. In the Interest of AOS, 189 Ga. App. 860 (377 SE2d 870) (1989).

We find appellant’s arguments without merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided May 1, 1990

Rehearing denied May 15, 1990.

Watson & Watson, Anne H. Watson, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Charles W. Smith, Jr., for appellee.


text:
    A90A0142.
    PYRAMID CONSTRUCTION COMPANY, INC. et al. v. STAR MANUFACTURING COMPANY.
    (394 SE2d 598)
   McMurray, Presiding Judge.

Star Manufacturing Company (plaintiff) brought an action against Pyramid Construction Company, Inc., and Robert E. Spencer (defendants) to recover the cost of “prefabricated buildings” allegedly provided to defendant Pyramid Construction Company, Inc. Plaintiff filed a motion for summary judgment and, on April 20, 1989, served defendants with copies of the summary judgment motion, a brief, a supporting affidavit, a statement of material undisputed facts and a request for hearing on the motion by depositing the same “in the United States Mail ... in a properly addressed envelope with adequate postage thereon.” In an order dated May 22, 1989, and filed in the office of the clerk of the trial court on May 22, 1989, the trial court granted summary judgment to plaintiff “in full.” On June 20, 1989, the trial court entered a “FINAL JUDGMENT” and awarded plaintiff damages. Defendants now appeal. Held:

Defendants contend the trial court erred “in entering an order granting summary judgment on the 32nd day after filing and service of the motion for summary judgment. ...”

Normally, a party opposing a motion for summary judgment has not later than 30 days after service of the motion to respond. Rule 6.2 of the Uniform Rules for the Superior Court. See OCGA § 9-11-56 (c). However, “[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him, and the notice or paper is served upon him by mail, three days shall lie added to the prescribed period.” OCGA § 9-11-6 (e). This Code section “is designed to maximize the probability that a party will have the full time period within which to take an action after he receives the notice.” Akins v. Magbee Bros. Lumber &c. Co., 152 Ga. App. 904 (1), 906 (264 SE2d 334).

In Favors v. Travelers Ins. Co., 150 Ga. App. 741, 747 (2) (258 SE2d 554), it was held that the three-day extension rule of OCGA § 9-11-6 (e) applies “when and only when notice is effectuated by regular mail and the statutes prescribe that another method will ‘satisfy’ the notice requirement. . . .” Id. at 748. In the case sub judice, the three-day extension rule applies because regular mail was but one of three ways service could have been perfected. See OCGA § 9-11-5 (b). Consequently, since plaintiff served defendants with notice via regular mail, they had 33 days from the date of mailing to respond to the motion. It therefore follows that the trial court’s order granting plaintiff’s motion for summary judgment was premature since it was entered 32 days after the motion was filed. This error was not harmless as it cut off defendants’ statutory right to respond to the motion for summary judgment. See Goodwin v. Richmond, 182 Ga. App. 745 (2), 746 (356 SE2d 888). The trial court erred in entering “FINAL JUDGMENT” for plaintiff.

Decided May 15, 1990.

Julian H. Toporek, for appellants.

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., David R. Smith, for appellee.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0147.
    BROWN v. ANDERSON.
    (394 SE2d 599)
   Beasley, Judge.

Plaintiff Brown was the lessor of restaurant premises to Ms. Shirey, the sister of defendant Louise Anderson. A written lease for one year was entered into between Brown and Shirey. Brown appeals the jury verdict to Anderson on Brown’s claim that Anderson was liable under a new lease on these premises and was responsible for the rent after she vacated the premises.

Viewed in favor of the verdict, the evidence was that Ms. Shirey leased the premises for a one-year term ending March 31, 1986 for $1,000 a month. Ms. Anderson desired to take the restaurant over in September 1985 and to assume the lease of her sister. That lease contained a clause requiring written approval of the lessor before any such assumption. Anderson visited Brown and told him she wanted to do so. Shirey had paid the rent through September. When Anderson called on October 3 to ask when the rent was due, she was told by Brown’s rental agent/secretary that it was overdue and was advised then that the rent was going to increase to $1,040 or 5 percent of the gross whichever was greater. Anderson was told a new written lease would be ready to sign when she came to pay the rent. Never having agreed to this increase, Anderson vacated the premises.

Brown’s complaint alleged that a new lease for the higher amount had orally been entered into and sought recovery of that amount.

1. Did the trial court err in charging the jury on mutual departure and novation from the terms of the contract, without instructing the jury that Anderson had, as a matter of law, assumed the Shirey lease?

The objection made in the motion for new trial was that the court erred in instructing on novation and temporary departure without having first so informed counsel, which with other charges on the assumption or assignment of the lease confused the jury.

After the charge was given, the only objection voiced by plaintiff was that counsel was concerned by that portion of the charge which instructed the jury that the parties could depart from written terms of a contract by mutual agreement, and that in order to revert to the original terms, written notice must be given. Plaintiff did not reserve the right to make further objections to the charge in the motion for new trial.

“OCGA § 5-5-24 prohibits a party from complaining of the giving or failing to give jury instructions unless it objects before the jury returns its verdict, except where there has been a substantial error in the charge which was harmful as a matter of law.” Dept. of Transp. v. Old Nat. Inn, 179 Ga. App. 158, 162 (5) (345 SE2d 853) (1986).

The objection was more in the nature of a motion for partial directed verdict than an objection to the charge given, i.e., to instruct the jury that Anderson had assumed the Shirey lease as a matter of law. OCGA § 9-11-50; see Campbell v. Forsyth, 187 Ga. App. 352, 353 (1) (370 SE2d 207) (1988). Having made no such motion at trial, this subject is not preserved for our review. Lashua v. Tomlin, 194 Ga. App. 3, 4 (389 SE2d 767) (1989).

2. Did the court err in charging on mutual departure (OCGA § 13-4-4) and novation (OCGA § 13-4-5)? The only objection was to the mutual departure charge so only it will be considered.

Lessor took a chameleonesque position during trial, and now, regarding his theory as to which lease he was relying on. At the least, he failed to choose between a theory that changing the party lessee, the lease period, and the rent amount constituted a new oral lease agreement and a theory that the old written lease governed an assignee. He argues that he relied on the assumption by Anderson of Shirey’s lease. This is not supported by the record, which shows he contended he was entitled to the higher rent.

The giving of the charge on mutual departure was not supported by the evidence, but its giving was harmless, as the only proof of a contract put forth by plaintiff lessor was that of an oral agreement with Anderson for the higher rent.

Decided May 15, 1990.

Mullins, Whalen & Shepherd, Andrew Whalen III, Newton M. Galloway, for appellant.

Don H. Taliaferro, for appellee.

3. Was the evidence insufficient and was plaintiff entitled to a new trial? It was sufficient. Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 84 (2) (380 SE2d 751) (1989); Campbell, supra.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A89A0508.
    BAKER v. SOUTHERN RAILWAY COMPANY et al.
    (395 SE2d 670)
    Decided May 15, 1990.

      Kelly, Denny, Pease & Allison, Paul R. Bennett, for appellant.
   Birdsong, Judge.

This case initially came before us as an appeal from a judgment granting appellee’s motion to dismiss an appeal for unreasonable and inexcusable delay in the filing of the transcript. In Baker v. Southern R. Co., 192 Ga. App. 444 (385 SE2d 125), we affirmed the judgment of the trial court, holding that the trial court’s findings were not erroneous, and that appellant had failed to establish that the trial court abused its discretion. In Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576), the Supreme Court remanded our judgment with direction, holding that the trial court failed to make a specific finding that the failure to file timely the transcript was caused by appellant Baker and directing that the case be remanded for further action by the trial court in accordance with its opinion. See generally Wagner v. Howell, 257 Ga. 801 (363 SE2d 759) (setting forth the three criteria for dismissal of an appeal for failure timely to file a transcript).

Accordingly, we vacate the judgment of the trial court, and remand the case with direction that the trial court make those specific findings required by the Supreme Court, and thereafter enter those rulings, orders, or judgments deemed appropriate, in the exercise of its sound discretion, and not inconsistent with the holding of the majority of the Supreme Court, 260 Ga. 115, supra.

Judgment vacated and case remanded with direction.

Deen, P. J., and Cooper, J., concur.

Neely & Player, Edgar A. Neely III, Tami L. Brown, William C. Thompson, for appellees.


text:
    A90A0560.
    WILLIAMS v. THE STATE.
    (394 SE2d 601)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of violating the Georgia Controlled Substances Act. He was sentenced to confinement for a period of 14 years (10 years to serve and 4 years on probation). This appeal followed. In his sole enumeration of error, defendant, a black man, contends the trial court erred in ruling that the prosecutor’s peremptory challenge of a particular black juror, Mrs. Lumby, was “race-neutral” as required by Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69).

The record demonstrates that the venire consisted of 40 white prospective jurors and 2 black prospective jurors; that the prosecutor used 2 peremptory challenges to strike the black jurors from the venire; that the jury placed upon defendant was exclusively white; and that defendant timely raised a Batson motion to the striking of the 2 black jurors by the prosecutor.

With regard to the striking of Mrs. Lumby, the prosecutor offered the following explanation: “Mris. Lumby is the oldest juror on the panel. It was apparent during her response to my questions during voir dire that she seemed to have some difficulty understanding the nature of the questions, and she also seemed to have difficulty in hearing in general. She responded that she last served on the jury some twenty years ago, and that the jury could reach no verdict. . . . I. . . took . . . into consideration the fact that she was on a jury that could reach no verdict as part of my consideration for exercising this particular strike. I would like to note for the record that after the fifteen minute recess Mrs. Lumby apparently had some difficulty returning to the courtroom. She was not in the courtroom and had to be called and assisted by the Bailiff simply to enter into the courtroom. She obviously is not in the best of physical condition. All of those considerations were my reasons for exercising this particular strike.”

The trial court disagreed in part with the prosecutor’s assessment, finding that Mrs. Lumby did not need assistance to enter the courtroom and that she seemed to “at least hear” the prosecutor’s questions although she may not have understood them. Nevertheless, the trial court overruled defendant’s Batson motion. Held:

Inasmuch as the peremptory challenges exercised by the prosecutor “resulted in the total elimination of blacks from the venire, we view this as establishing a prima facie case of racial discrimination, albeit due to the absence of any true ‘pattern’ of strikes giving an inference of discrimination and the minimal disparity between the black percentage of the jury and the black percentage of the panel we view this as an extremely weak prima facie case established by defendant. ‘(A) weak prima facie case may be rebutted more readily than a strong one.’ Gamble v. State, [257 Ga. 325, 326 (5), 327 (357 SE2d 792)].” Durham v. State, 185 Ga. App. 163, 165 (3), 166 (363 SE2d 607).

Decided May 15, 1990.

Chandelle T. Summer, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.

We find the prima facie case established by defendant was rebutted by the prosecutor. “A trial court’s finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it ‘largely will turn on evaluation of credibility.’ Batson v. Kentucky, 90 LE2d 69, supra at 89, fn. 21. ‘Thus, we may only reverse the trial judge’s determination that the prosecution’s peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. United States v. Tucker, 773 F2d 136, 142 (7th Cir. 1985), cert. denied, _ U. S. _, 106 S.Ct. 3338, 92 L.Ed.2d 742 (1986).’ United States v. Mathews, 803 F2d 325, 330 (7th Cir. 1986).” McCormick v. State, 184 Ga. App. 687, 688 (362 SE2d 472).

Given the weakness of defendant’s,prima facie case, and giving great deference to the trial court’s finding that the prosecutor’s peremptory strikes were “race-neutral,” we cannot say the trial court’s determination was clearly erroneous. The mere fact that the trial court may have disagreed with a portion of the prosecutor’s explanation does not demonstrate that the prosecutor’s peremptory strikes were motivated by intentional discrimination. See Durham v. State, 185 Ga. App. 163, 165 (3), 166, supra, wherein we held that “a prosecutor may strike from mistake, so long as the assumptions involved are racially neutral. Gamble v. State, 257 Ga. 325, 326 (2), supra.”

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0662.
    HOLLINGER v. THE STATE.
    (394 SE2d 603)
   McMurray, Presiding Judge.

Defendant was convicted of two counts of armed robbery. Following the imposition of sentence and the denial of his motion for a new trial, defendant appeals. Held,-.

1. Defendant contends the trial court erred in failing to suppress the identification testimony of a witness because the testimony was tainted by a suggestive photographic lineup. This contention is without merit.

“Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. McCoy v. State, 237 Ga. 62, 63 (226 SE2d 594) (1976); Bonner v. State, 160 Ga. App. 902, 903 (1) (288 SE2d 612) (1982). . . . [But even] if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. Price v. State, 159 Ga. App. 662, 663 (1) (284 SE2d 676) (1981).” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548).

In the case sub judice, the witness had ample opportunity to observe defendant independently. Following the robberies, defendant and two accomplices (one of whom was the witness’ uncle) made their way to the witness’ house and waited on her patio for a few minutes until she agreed to drive them home. Defendant and one accomplice sat in the back seat of the witness’ car and she looked at the two of them through the rear view mirror. All told, the witness was able to view defendant for approximately 10 minutes. She testified that she based her in-court identification of defendant upon her 10-minute observation and added that she would never forget defendant’s face. Given these facts, we cannot say the trial court erred in failing to suppress the witness’ in-court identification. Harris v. State, 190 Ga. App. 343, 345 (1) (378 SE2d 912).

2. Defendant asserts he was arrested illegally and that the trial court erred in failing to suppress evidence which was seized in conjunction with his arrest. In this regard, defendant concedes that the police had probable cause to arrest him. He points out, however, that he was arrested in his apartment without a warrant.

In Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639), the United States Supreme Court held that the Fourth Amendment is violated when police make “a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Id. at 576. Was the Fourth Amendment violated by the warrantless arrest of defendant inside his apartment? No. Although defendant testified otherwise, the arresting officer testified that defendant gave his consent to the entry of his apartment. Compare Griffith v. State, 172 Ga. App. 255, 256 (1) (322 SE2d 921), in which defendant did not consent to the officers’ entry into his home. Moreover, the evidence was clear that the police did not intend to arrest defendant when they approached his home. The investigating officer who arrested defendant only went to defendant’s apartment to further his investigation. At that time, defendant was a mere suspect and the officer did not know his name. The officer went to defendant’s apartment with the hope of finding defendant’s mother and asking her some questions. It was not until he spoke with defendant and saw defendant’s jacket (which matched the description of a jacket worn by one of the perpetrators) that the investigating officer placed defendant under arrest. Thus, the trial court was authorized to conclude that defendant’s arrest was lawful and that the subsequent seizure of evidence in conjunction with defendant’s arrest was proper. See Starr v. State, 159 Ga. App. 386 (283 SE2d 630).

Decided May 15, 1990.

Rochelle L. Cross, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Grover W. Hudgins, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1089.
    TAYLOR v. THE STATE.
    (394 SE2d 604)
   Deen, Presiding Judge.

Mitchell Taylor was convicted of a violation of the Georgia Controlled Substances Act (possession of methamphetamine with intent to distribute), and possession of a sawed-off shotgun. He brings this appeal following the denial of his motion for a new trial, contending that the circumstantial evidence presented at trial was not sufficient to support a guilty verdict on the drug charge. Held:

The evidence showed that at about midnight on May 5, 1989, a sheriff’s investigator who was on medical leave observed from his home suspicious activity at the Top of Ellijay Motel. This activity included vehicles stopping at the far end of the motel and individuals making brief trips to a motel room. He notified the police department, and an officer was sent to investigate. Upon arrival, the officer saw appellant, standing outside a car, throw a sawed-off shotgun in the window on the passenger side of the car. Taylor told the officer that he had borrowed it from a woman named Cline, and that he had rented the motel room in question under the name of “Mitchell Millwood.” The shotgun was loaded, and the motel room key was in his pocket. He consented to a search of the room, but added “if you find anything it’s not mine.” The officer found a washcloth with apparent bloodstains, forty-four packets of methamphetamine, and a triple beam scale. Two persons left the motel room while the officer was in the parking lot.

Decided May 15, 1990.

Clifford S. Lancey, for appellant.

Roger G. Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellee.

Appellant argues that others had “equal access” to the room and that there was no evidence to link him to the items found in the room. He had, however, a key for operating heavy equipment which was similar to one found in a locked box located in the room, which appellant contends belonged to a man named Hester.

A rebuttable presumption arises when one leases a room, and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises. This presumption may be overcome by evidence that others have access to the premises. Whether this presumption is rebutted is solely a jury question. Knighton v. State, 248 Ga. 199 (282 SE2d 102) (1981). The jury was charged the above-stated rule, and the evidence authorized it to find that the defendant possessed the contraband, although others had access to the room. Lane v. State, 177 Ga. App. 553, 554 (340 SE2d 228) (1986). The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0120.
    CLOSE v. THE STATE.
    (394 SE2d 563)
   McMurray, Presiding Judge.

The appellant was convicted of eight counts of child molestation in that he either exposed his penis to a different named child in Counts 2, 3 and 7, or exposed it and practiced sexual self gratification in the presence of a different named child in Counts 1, 4, 5, 6 and 8, all children named in the eight counts being under the age of 14. The alleged acts took place during two separate incidents when the children involved were getting off their school bus. He appeals from the denial of his motion for new trial. Held:

1. Appellant contends that the trial court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. He argues that his trial counsel did not properly investigate and present his alibi defense because he failed to interview and call several “crucial” witnesses, failed to effectively cross-examine the young victims, failed to investigate documented areas of defense which are not now obtainable, and failed to secure a copy of the incident report filed by the investigative and arresting officer in the case.

The Supreme Court has established that “[b]efore addressing the specific acts and omissions allegedly demonstrating ineffective assistance, [it is] appropriate to outline generally the circumstances surrounding [the appellant’s] trial representation. [Cit.]” Cook v. State, 255 Ga. 565, 578-587 (17) (340 SE2d 843) (1986). It was shown at the hearing on the motion for new trial that appellant was represented by an experienced trial lawyer who had been practicing criminal and civil law for 23 years and had handled numerous felony cases, including at least 15 murder trials with only one conviction. Prior to trial, this attorney had appellant released from jail on bond, filed discovery motions, a motion to dismiss the indictment and general and special demurrers. During the trial, he presented the testimony of 12 witnesses, including appellant, cross-examined the State’s witnesses and made objections. A timely request to charge on public indecency was made and a vigorous closing argument was presented.

Under the standards set forth in Strickland v. Washington, 466 U. S. 668, 687-688 (104 SC 2052, 80 LE2d 674) (1984), “appellant’s burden on challenging his counsel’s effectiveness was to establish that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Cit.] He was required to show that there was a reasonable probability that the result of the proceedings would have been different but for his counsel’s unprofessional deficiencies. [Cit.] Further, he had to overcome the strong presumption that the representation was effective. [Cit.] He has not done so.” Smith v. State, 192 Ga. App. 18, 19-20 (3) (383 SE2d 600) (1989). See also Cook v. State, supra at 579; Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985). The burden is on the appellant to make these showings, and a reviewing court can find lack of sufficient prejudice without deciding whether counsel’s performance was deficient. Smith, supra at 783.

Appellant’s complaint that his alibi defense was weakened because his lawyer’s failure to interview certain witnesses earlier rendered their testimony “subject to attack on the plausibility of their recollection” is not borne out by the trial transcript or by facts revealed in the hearing on the motion for new trial. These witnesses were clear in their recollections, and one of them had written time records for the date in question. Three possible witnesses were not called because their testimony would not have significantly bolstered the evidence as to what time the victims’ school buses let them out. Two witnesses were purposely omitted because their testimony would have conflicted with that of another alibi witness, and the failure to call a third was harmless since her testimony would have been merely cumulative of the witnesses who did testify. Any information which might have been obtained by securing the school bus time schedules before they were destroyed would likewise have been cumulative of the testimony of the children and their parents. Insofar as the failure to secure a copy of the police report is concerned, it is apparent from the testimony of the officer who prepared this report that more details of the incidents were given by the victims themselves than would have been reflected in the report. See Argo v. State, 192 Ga. App. 794, 795 (3) (386 SE2d 545) (1989). Contrary to appellant’s arguments, his trial attorney testified that he did know prior to trial that two separate incidents were involved.

Thus, appellant failed to carry his burden of showing that his lawyer’s performance was deficient or prejudicial, in that there was a reasonable possibility that the outcome of the proceedings would have been different but for his deficiency. “ ‘[Ejrrors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.) The evidence in this case supports the trial court’s finding of effective assistance of counsel.’ [Cits.]” Balduf v. State, 190 Ga. App. 233, 234 (378 SE2d 409) (1989).

2. Appellant also cites as an example of the ineffective assistance of his trial counsel his lack of objection to the State’s failure to give proper notice under Rule 31.1 of the Uniform Rules for the Superior Courts that it intended to offer evidence of a prior, independent but similar transaction. However, the indictment upon which appellant was tried did not allege that the date of the offenses was an essential averment, and the prior incident of child molestation occurred within the four-year statute of limitation period. Thus, this evidence did not fall within the ambit of Rule 31.1, but was evidence of the offenses charged and therefore admissible. Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987); Garrett v. State, 188 Ga. App. 176, 177 (2) (372 SE2d 506) (1988). Accordingly, trial counsel’s failure to object to this evidence did not constitute deficient performance.

3. Appellant further asserts that his trial counsel should have objected to the testimony of the mother of three of the victims and the arresting officer as to what the children told them about the incidents. Counsel testified at the hearing on the motion for new trial that he thought the mother would make a terrible witness, and that the hearsay statements of the children were admissible under OCGA § 24-3-16 and as part of the res gestae. This decision was clearly one of strategy and tactics, and any error in judgment therefore did not constitute denial of effective assistance of counsel. Balduf v. State, supra.

4. Appellant complains that the trial court erred in refusing his request to charge the law of public indecency as a lesser included offense of child molestation. However, “where the children said [the] defendant did the act and he denied it and claimed an alibi, such a charge would have been inappropriate. Cooper v. State, 256 Ga. 631 (3) (352 SE2d 382) (1987).” Worley v. State, 193 Ga. App. 58 (1), 59 (386 SE2d 879) (1989).

Decided May 3, 1990

Rehearing denied May 16, 1990

Alan J. Baverman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Fonda S. Clay, Assistant District Attorneys, for appellee.

5. Appellant argues that the trial court should have granted his special demurrer on the ground that the indictment could charge only two offenses, one for each instance of exposure to children leaving their school bus, rather than eight offenses against each of the children involved. We do not agree. The offense of child molestation is a crime against the person, and every child involved in the two incidents was a victim of this crime. In Worley v. State, supra, this Court upheld a conviction of two counts of child molestation involving one incident of lewd exposure before two children, and we find no reason to do otherwise here.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Banke, Presiding Judge. Birdsong, Judge,

text:
    A90A0137.
    FIRST FINANCIAL INSURANCE COMPANY v. RAINEY et al.
    (394 SE2d 774)
   Banke, Presiding Judge.

The appellant issued a policy of motor vehicle insurance to appellee Willie Calhoun which provided the minimum no-fault coverage required by OCGA § 33-34-4 (a) (2). While this policy was in force, a large limb fell on the insured vehicle, injuring Calhoun’s minor grandson, Max Ray Rainey, who was occupying it at the time. This accident occurred at a mobile home park where Mr. Calhoun’s adult son and some other grandchildren were present. Accompanied by Max, Mr. Calhoun had driven to the mobile home park with the intention of picking up these other relatives and bringing them to his home. Upon their arrival, Max had gotten out of the vehicle and played for a brief period, until the others were ready to leave. His grandfather had then instructed him to get back in the car, and Max had obeyed, opening the door on the passenger side of the vehicle and climbing up onto the seat. Immediately after he did so a loud cracking noise was heard, and the limb, which was about four inches in diameter, fell onto the open door of the vehicle. A portion of the limb was thereby deflected into the passenger compartment, where it struck Max on the back of the head.

The accident occurred on September 25, 1988. On September 30, 1988, a claim was made for the $2,500 in basic medical benefits provided by the policy; and on November 18, 1988, the appellant filed a declaratory judgment action seeking a determination that Max’s injuries were not covered because they had not arisen “out of the operation, maintenance, or use of” the insured vehicle within the contemplation of OCGA § 33-34-2 (1). Named as defendants in the declaratory judgment action were the appellees herein, consisting of Max’s mother, both individually and as his natural guardian, and Mr. Calhoun. They counterclaimed to recover the $2,500 in medical benefits allegedly due under the policy, as well as to recover a bad-faith penalty, attorney fees and punitive damages pursuant to OCGA § 33-34-6. The trial judge granted their motion for summary judgment on the basic benefits claim and allowed the other claims to go to a jury, which returned a verdict in their favor for a 25 percent bad-faith penalty in the amount of $675, attorney fees in the amount of $8,000, and punitive damages in the amount of $50,000. This appeal was taken from the denial of the appellant’s motions for new trial or judgment notwithstanding the verdict. Held:

1. The appellant contends that the trial court erred in granting summary judgment to the appellees on their claim for basic benefits. We disagree.

Motor vehicle insurers are statutorily required to “pay basic no-fault benefits without regard to fault for economic loss resulting from: . . . (2) Accidental bodily injury sustained . . . while occupying the owner’s motor vehicle. . . .” OCGA § 33-34-7 (a). The term “ ‘[accidental bodily injury’ means bodily injury . . . arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits. . . .” OCGA § 33-34-2 (1). “ ‘Operation, maintenance, or use of a motor vehicle’ means operation, maintenance, or use of a motor vehicle as a vehicle. . . .” OCGA § 33-34-2 (9).

It is apparent without dispute that Max was occupying the insured vehicle at the time he was injured. Thus, the inquiry turns to whether his injuries arose out of the operation, maintenance, or use of the insured vehicle “as a vehicle” within the contemplation of OCGA § 33-34-2 (1) & (9). “[T]he term ‘arising out of’ does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. . . . [A]lmost any causal connection or relationship will do. . . . ‘The question to be answered is whether the injury “originated from,” “had its origin in,” “grew out of,” or “flowed from” the use of the vehicle.’ ” Southeastern Fid. Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (236 SE2d 550) (1977) (upholding award of no-fault benefits to insured whose son was killed when pistol he was apparently handling discharged accidentally as vehicle turned off of pavement onto bumpy, unpaved road).

In determining whether a sufficient causal connection exists between the vehicle and the injuries, this court has stated that the injury will be deemed to have arisen from the operation or use of the insured vehicle if it would not have occurred “ ‘but for’ the operation, maintenance or use of the [vehicle]. . . .” Franklin v. Southern Guar. Ins. Co., 160 Ga. App. 279, 282 (287 SE2d 274) (1981). The insured in Franklin died of a heart attack while driving the insured vehicle. Applying this “but for” test, we concluded that a jury issue existed as to the insurer’s liability for death benefits, noting that “ ‘ “[t]he courts have been liberal in finding this ‘but for’ relationship and in allowing recovery against automobile carriers. . . .” [Cit.]’ ” Id. citing Payne v. Southern Guar. Ins. Co., 159 Ga. App. 67, 68 (282 SE2d 711) (1981).

A review of cases decided since Franklin reveals that this liberality has not abated. In Kicklighter v. Allstate Ins. Co., 175 Ga. App. 586, 591 (333 SE2d 670) (1985), for example, an insured injured in a fire ignited by a defective lantern as he was sleeping in a camper-van was held entitled to benefits as a matter of law, based on a determination that his “use of the vehicle at the time of his injury was clearly within the normal and intended purpose of the vehicle.” Accord Denison v. Allstate Indem. Co., 258 Ga. 269 (367 SE2d 801) (1988), rev’g Allstate Indem. Co. v. Denison, 185 Ga. App. 390 (364 SE2d 103) (1987) (where same result was reached in similar case involving van which had not been modified to serve as a camper). See also State Farm Mut. &c. Ins. Co. v. Holmes, 175 Ga. App. 655 (333 SE2d 917) (1985) (affirming award of death benefits, punitive damages and attorney fees to spouse of insured who drowned in flood waters after exiting vehicle). For a review of other cases, see generally Darroch & Barber, Motor Vehicle Ins. Law & Claims in Ga., § 34-2.

In support of its contention that a connection did not exist in this case between the injuries and the operation, maintenance or use of the vehicle, the appellant relies on a series of cases disallowing benefits to or on account of persons who were criminally assaulted while occupying an insured vehicle. See Davis v. Criterion Ins. Co., 179 Ga. App. 235 (345 SE2d 913) (1986); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325) (1985); Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829 (318 SE2d 670) (1984); Washington v. Hartford Acc. &c. Co., 161 Ga. App. 431 (288 SE2d 343) (1982); Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700 (347 SE2d 688) (1986). With the exception of Weeks, the controlling factor in each of these cases clearly was the intentional and deliberate nature of the assault, “ ‘which took place in the vehicle simply because that is where the (victims) happened to be’ ” at the time. Bennett, supra, 170 Ga. App. at 830. Compare Payne v. Southern Guar. Ins. Co., 159 Ga. App. 67, supra (holding that claimant was entitled to benefits as a matter of law where he was shot by firearm which discharged accidentally as it was being loaded into vehicle by a companion). Although the victim in Weeks was not assaulted deliberately but was struck “accidentally” by a bullet meant for a companion who was standing outside the vehicle, two of the three judges who participated in that decision stated in a special concurrence that the overriding reason the victim was not entitled to no-fault benefits was because she had been occupying the vehicle in furtherance of a criminal enterprise when the incident occurred.

We do not consider any of these cases to be apposite to the facts before us, since the injuries in the present case did not result from a criminal assault, and the injured claimant was not occupying the vehicle for a criminal purpose. Thus, applying the general rule that an occupant’s injuries will be deemed covered if they would not have occurred “but for” the use, operation or maintenance of the vehicle as a vehicle, we affirm the trial court’s conclusion that the appellant’s liability for basic benefits was established as a matter of law. Compare Leverett v. Aetna Cas. &c. Co., 157 Ga. App. 175 (276 SE2d 859) (1981) (disallowing claim by insured who fell off truck while standing on it in attempt to pick plums); Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988) (disallowing claim by insured who was not occupying vehicle when injured but slipped and fell while walking back to her vehicle after paying for gas at gas station).

2. The appellant enumerates as error the trial court’s denial of its motion for summary judgment on the appellees’ claim for a bad-faith penalty, punitive damages and attorney fees. However, the denial of a motion for summary judgment becomes moot after judgment is entered on a jury verdict. See Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 867 (7) (380 SE2d 498) (1989); Atlanta Car For Hire Assn. v. Whited, 179 Ga. App. 893, 894 (1) (348 SE2d 102) (1986). Consequently, this enumeration of error presents nothing for review.

3. The appellant contends that the trial court erred in denying its motion for directed verdict on the claim for a bad-faith penalty, punitive damages and attorney fees, arguing that its defense to the basic benefits claim, though unsuccessful, was reasonable as a matter of law.

“The question of the insurer’s good faith (or lack thereof) is one of fact for the jury, and the jury’s determination on this issue should be upheld on appeal if there is any evidence to support it. [Cits.] A jury award of punitive damages for wrongful refusal to pay a claim is thus entitled to great weight on appeal and should be disturbed only if the evidence at trial does not support an inference of bad faith on the insurer’s part. [Cits.] Application of an ‘any evidence’ standard of review to § 33-34-6 . . . jury awards is consistent with the policy, previously recognized by this court, of encouraging prompt payment of no-fault insurance claims.” Binns v. MARTA, 250 Ga. 847, 848 (301 SE2d 877) (1983).

The appellant argues that its good faith in litigating the claim is conclusively established by the absence of any legal precedent squarely holding that an accident of this nature is covered. However, the fact that an insurer is litigating an issue of “first impression” is not sufficient, in and of itself, to establish that it is doing so in “good faith.” See Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 51 (244 SE2d 573) (1978). As previously indicated, the cases upon which the appellant places primary reliance are clearly distinguishable in that they involved criminal assaults. The appellant argues, however, that these cases “stand for the firmly established proposition of law that an injury will not be deemed to arise out of the operation, maintenance, or use of a motor vehicle if the claimant has been struck by a foreign object while occupying a vehicle, if the expulsion of the foreign object bears no connection to the operation, maintenance, or use of the vehicle.” We cannot agree with this contention. In the first place, such a principle of law would be at odds with this court’s repeated holdings that “the term ‘arising out of’ does not. . . require a finding . . . that the insured vehicle was exerting any physical force upon the instrumentality which was the cause of the injury.” Southeastern Fid. Ins. Co. v. Stevens, supra, 142 Ga. App. at 563-4. See also Payne v. Southern Guar. Ins. Co., supra, 159 Ga. App. at 68; Insurance Co. of North America v. Dorris, 161 Ga. App. 46, 47 (288 SE2d 856) (1982). Furthermore, it is not even necessary for an injury to be caused by contact with an “instrumentality” in order for it to be treated as compensable. See, e.g., Franklin v. Southern Guar. Ins. Co., supra, 160 Ga. App. at 279 (where insured died of heart attack while driving insured vehicle). Accordingly, we can find no support in the case law for the principle relied on by the appellant.

There is no dispute over the fact that the claimant was occupying the insured vehicle for use as a vehicle when the injury occurred, nor is there any dispute over the fact that he incurred medical expenses in excess of $2,500 as a result of his injuries. The only dispute has been over the legal/metaphysical issue of whether a causal connection existed between the child’s injuries and his occupancy and use of the vehicle. Given the prior holdings of this court that “almost any causal connection or relationship will do,” (see, e.g., Southeastern Fid. Ins. Co. v. Stevens, supra, 142 Ga. App. at 564; Franklin v. Southern Guar. Ins. Co., supra, 160 Ga. App. at 282), we must reject the appellant’s argument that a “close question” was presented on this issue. However, there is an additional factor in this case which the jury undoubtedly took into consideration in concluding that the appellant had failed to meet its burden of proof on the good-faith issue and which persuades us not to disturb the jury’s verdict. The claim was for only $2,500, the minimum amount of medical benefits coverage required by law. See OCGA § 33-34-4 (a) (2). In filing the declaratory judgment action, the appellant clearly stood to incur litigation expenses and attorney fees substantially in excess of this amount (assuming, of course, that the appellees had the will and resources to pursue the matter); and since the occurrence which gave rise to the child’s injuries may fairly be categorized as a freak accident, its decision to do so cannot reasonably be explained by a need for guidance in dealing with future claims of the same nature. Surely, the requirement of good faith demands some sense of proportionality in these matters. Taking all of these considerations into account, we have no hesitation in holding that the jury’s verdict was supported by the evidence. Accord Insurance Co. of North America v. Smith, 189 Ga. App. 353 (1) (375 SE2d 866) (1988).

4. The appellant contends that the trial court erred in allowing its trial counsel to be called as a witness by the appellees for cross-examination on the issue of whether it had acted in reliance on legal advice in bringing the declaratory judgment action. The appellant argues both that the testimony in question was immaterial and that “it was improper for the trial court to compel [counsel’s] testimony [without disqualifying] him as trial counsel for the appellant.” However, the appellant’s counsel did not object to the questioning on the ground that it lacked relevance to the issues being tried, nor did he move for a mistrial, seek to withdraw as counsel or request a continuance to enable the appellant to secure other counsel. Accordingly, the issues raised by this enumeration of error were not preserved for appeal.

5. In his written order disposing of the parties’ cross-motions for summary judgment, the trial judge made certain comments to the effect that he believed the appellant had litigated the coverage issue in good faith “based upon an uncertainty created by certain statutory interpretations as rendered by the appellate courts,” with the result that he did not consider the case to be an appropriate one for an assessment of penalties or other damages for bad faith. The court identified these comments at the outset as “an editorial and instructional aide” and ended them with the following statement: “These final comments are offered gratuitously and are not binding as to the parties in this action.” The appellant nevertheless contends that the court was precluded by these comments from allowing the claims for a bad-faith penalty, punitive damages and attorney fees to be put to the jury. This contention is patently without merit. We have previously held that the evidence was legally sufficient to allow these claims to go to the jury, and the trial judge obviously reached the same conclusion or he would not have denied the appellant’s motion for directed verdict.

6. The appellees have moved this court to remand the case to the trial court, in the event of an affirmance, for an assessment of additional attorney fees for the cost of their legal representation on appeal. The appellant opposes the motion, arguing that OCGA § 5-6-6 and Court of Appeals Rule 26 (b) establish the exclusive remedy in this court for a frivolous appeal. However, the appellees do not seek to recover their attorney fees on appeal based on a contention that the appeal was frivolous; rather, they contend these fees are recoverable under OCGA § 33-34-6 as part of the total attorney fees incurred by them due to the appellant’s refusal to pay their claim for basic no-fault benefits.

In construing the predecessor to OCGA § 33-4-6, a Code section closely analogous to § 33-34-6 dealing with bad faith in refusing to pay insurance claims generally, this court has held that all of the work done on the case, including work done on appeal, may be considered in awarding attorney fees. See Reserve Life Ins. Co. v. Ayers, 103 Ga. App. 576, 578 (120 SE2d 165) (1961), aff’d 217 Ga. 206 (121 SE2d 649) (1961). Based on that decision, we hold that the appellees in this case are entitled to recover their reasonable attorney fees on appeal pursuant to OCGA § 33-34-6, and we consequently direct the trial court to conduct further proceedings upon the return of the remittitur for the purpose of assessing such attorney fees.

Judgment affirmed and case remanded with direction.

McMurray, P. J., Sognier, Pope, Beasley and Cooper, JJ., concur. Carley, C. J., Deen, P. J., and Birdsong, J., dissent.

Birdsong, Judge,

dissenting.

Appellant contends that there was no causal connection between the injury causing agent (the falling tree limb), and the operation, maintenance, or use of the motor vehicle within the meaning of the applicable sections of the Georgia Motor Vehicle Accident Reparations Act. OCGA § 33-34-1 et seq. I agree.

Unlike my colleagues in the majority, I cannot conclude that the unfortunate injuries sustained by the child in this case arose out of the operation, maintenance, or use of the insured vehicle “as a vehicle.” As the majority recognized, the question to be answered is whether the injury “originated from,” “had its origin in,” “grew out of,” or “flowed from” the use of the vehicle.

As stated by the majority, appellant relied on a series of cases where people happened to have been criminally assaulted while occupying the insured vehicle. Among those cases is the case of Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325). In Weeks a passenger seated in the parked automobile was accidentally shot when the criminal perpetrator fired at a third-party dismounted passenger of the same vehicle. The court in Weeks concluded that “appellant’s injury simply had no causal connection with the use of the insured’s vehicle in this case.” Weeks, supra at 726. Contrary to what the majority implies, two judges did not concur in the principal opinion in Weeks merely because the victim had been operating the vehicle in furtherance of a criminal enterprise when the crime occurred. In fact, the specially concurring opinion cites not a case in support of this proposition. Rather the two judges advanced the legal theory of vehicle use in furtherance of a criminal enterprise as “an additional reason” to that expressed by the majority while expressly agreeing with the legal analysis of the majority opinion in the first sentence of the concurring opinion. (Emphasis supplied.) Thus, Weeks is not merely a case which has value as physical precedent only. In fact, the majority opinion in Weeks, by virtue of being concurred in fully by all three judges, has full precedential value. Rather, it is the two-judge separate concurring opinion in Weeks, relied upon by the majority in the case sub judice in their attempt to distinguish Weeks, which would have value as physical precedent only. Slightly paraphrasing the well-established principle of law cited in Weeks so as to encompass the facts of this case, we find that “ ‘ “where a connection appears between the ‘use’ of the [parked] vehicle and the [falling of the tree limb] and resulting injury [to the young child seated inside the vehicle when the passenger door was still open] such as to render it more likely that the one grew out of the other, it comes within the coverage defined.” ’ [Cits.] ‘There must be more of a connection between the use of the vehicle and the [falling of the tree limb] and the resulting injury than mere presence in the vehicle when the injury was sustained.’ ” (Emphasis supplied.) Weeks, supra at 725. “Likewise, the connection must not be merely fortuitous.” Davis v. Criterion Ins. Co., 179 Ga. App. 235, 236 (345 SE2d 913) (the bus was merely the unfortunate location where the crime occurred). In the case sub judice, the falling tree limb falls within the category of events legally defined as “acts of God.” The effect of the majority’s decision in this case, in light of our existing precedent, is to cause the law of this state to be that the requisite causal connection appears between the “use” of the vehicle and the resulting injury when (a) an act of God just happens to injure a young child who happens to just enter the parked vehicle at the wrong time, and is merely present therein as an unwitting passenger, (b) the vehicle just happens to be parked at the same location where the act of God occurs, and (c) the act of God is otherwise unrelated to the actual operation of the car as a vehicle; such a causal connection would not occur; however, if the same passenger in the same parked vehicle had the misfortune of being shot through the open car door by a passing criminal, then no causal connection appears between the use of the vehicle and the resulting injury. In my view, we have to engage in acts of legal prestidigitation to justify this anomaly.

Further, the majority in essence argues that “but for” his use of the car, the young child would not have been in a position to be hit by a falling tree and to incur the resultant injury. This is a “faulty application of the ‘but for’ test as the facts of the instant case show only an incidental connection between the [car and the falling tree] and was not an injury that ‘arose out of the use of the [car] as a vehicle for there ‘must be more of a connection between the use of the vehicle and the [falling of the tree] . . . than mere presence in the vehicle. . . .’ [Cit.] ‘Case law indicates that the injury need not be the proximate result of “use” in the strict sense, but it cannot be extended to something . . . remote.’ ” Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700, 701-702 (347 SE2d 688). The majority today extends the concept of “proximate result of use” to cover injury-producing incidents of the most remote nature. With this I cannot agree.

Moreover, I would thus find the insurer’s argument to have been made in good faith. While issues of good faith or bad faith on the part of an insurer are normally reserved for the jury (Gillem v. MARTA, 160 Ga. App. 393, 395 (4) (287 SE2d 264)), “when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties. [Cit.] Good faith is determined by the reasonableness of nonpayment of a claim.” International Indem. Co. v. Collins, 258 Ga. 236, 237 (2) (367 SE2d 786). Applying this test, I believe that appellant’s denial of the claim was reasonable, and that it did not act in bad faith so as to support the imposition of bad faith penalties. Id.; compare Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (308 SE2d 382) (test of bad faith is as of the time of trial).

Merely because a legal argument is novel does not make it an argument done in bad faith. Such a staid position would throttle the orderly, albeit conservative, development of the law in this state.

While I fully recognize and appreciate the damage which can be done to an individual insured when pitted against the well-capitalized battery of legal counsel of an insurance company, nevertheless insurance companies too are entitled to certain basic rights of effective legal representation. When this court acts in a manner which deters an insurance company from advancing in litigation legitimate, but novel, legal theories and arguments, we have not assisted the individual insureds of this state. Rather, we have merely provided another incentive for spiralling increases in the insurance rates of our citizens.

I believe that because no causal connection existed in this case, as a matter of law, that judgment should be reversed. However, assuming arguendo, a causal connection could be found to exist, under the facts of this case, as a matter of law, the insurance company’s determination to contest rather than to pay this claim would be reasonable, and thus not in bad faith. Thus, I believe that the insurance company in any event acted in good faith, albeit aggressively, in the case sub judice, and that it should not have been assessed punitive damages, attorney fees, or bad faith penalty.

“[T]he appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky.” Autry v. State, 150 Ga. App. 584, 587 (258 SE2d 268). It is the duty of this court to see that justice is fairly dispensed to all parties concerned, and, this creates an equally important judicial obligation not to render judgments born only of generosity or compassion.

I respectfully dissent. I am authorized to state that Chief Judge Carley and Presiding Judge Deen join in this dissent.

On Motion for Rehearing.

The appellant contends on motion for rehearing that we have overlooked the holding of the Supreme Court in International Indem. Co. v. Collins, 258 Ga. 236 (367 SE2d 786) (1988), that “[w]hen the Court of Appeals is divided on an issue, and certiorari is granted to resolve the issue, the insurer is legally justified in litigating the issue and cannot be held liable for a statutory bad faith penalty as a matter of law.” Id. at 238. (Emphasis supplied.) Of course, the Supreme Court has not yet had an opportunity to entertain an application for certiorari in the present case; and we have no way of knowing whether, if such an application is ultimately filed, it will be granted. Consequently, we do not view International Indemnity as compelling a reversal of the jury’s award of penalties and attorney fees in this case.

Rather than simply paying a $2,500 no-fault claim submitted on behalf of a child who was concededly injured in connection with his use and occupancy of the insured vehicle, the appellant insurer chose to pursue a lengthy and costly declaratory judgment action to obtain a ruling that it had no obligation in the matter. This decision could not possibly have been cost effective even had the appellant prevailed in the declaratory judgment action, given the small size of the claim and the remoteness of the possibility that a freak occurrence of the sort giving rise to it would repeat itself in the future. Of course, as it turned out, the appellant did not obtain a favorable ruling in the declaratory judgment action but instead obtained a ruling that its defense to the claim lacked merit as a matter of law. To reverse the jury’s award of attorney fees and punitive damages in this situation would be to hold that no-fault insurers may resist small claims with impunity and thus, as a practical matter, defeat them, simply by interposing arguable defenses which, though insufficiently meritorious to withstand summary judgment proceedings, do not conflict squarely with existing precedent. Because we are unwilling to create such a rule and because we are unable to predict whether the Supreme Court will grant certiorari to review our decision in this regard, a majority of this court continues to believe the judgment of the trial court should be affirmed.

Decided April 11, 1990

Rehearing denied May 16, 1990

Crim & Bassler, Harry W. Bassler, Philip G. Pompilio, for appellant.

Burt & Swan, Walter H. Burt III, William S. Stone, for appellees.

The motion for rehearing is accordingly denied.


text:
    A90A0218.
    SOUTHERN GENERAL INSURANCE COMPANY v. BOERSTE et al.
    (394 SE2d 566)
   McMurray, Presiding Judge.

A suit was filed against Albert Boerste, appellee in the case sub judice, as executor of the Estate of Francis J. Boerste, and Augusta Aviation, Inc. (“Augusta Aviation” in the case sub judice), seeking damages for injuries suffered by Philip Brian Clark on June 25, 1987, as the result of the alleged negligence of Francis J. Boerste while operating an airplane owned by Allgood Healthcare, Inc. (“Allgood Healthcare” in the case sub judice). Francis J. Boerste had been provided as a pilot by Augusta Aviation at the request of Allgood Healthcare to fly its aircraft for the business purposes of Allgood Healthcare. Clark was a passenger in the plane, which was insured by appellant Southern General Insurance Company (“Southern General”) for liability for bodily injury and property damage. Francis J. Boerste and Augusta Aviation were covered by a Federal Insurance Company (“Federal” in the case sub judice) policy, and pursuant to its provisions Federal assumed their defense. Southern General refused to provide any defense and denied liability for any judgment that might be entered against the Boerste estate.

On January 3, 1989, Albert Boerste brought a declaratory judgment action against Southern General, Federal, Augusta Aviation and Clark, seeking to have Southern General declared primarily responsible for defending the underlying case and paying any judgment rendered up to the limits of the policy’s liability coverage. Federal’s policy had a clause providing that “[i]f an Insured other than a Named Insured has other insurance against a loss covered by . . . this policy, this insurance shall be excess insurance only over any other valid and collectible insurance with respect to such Insured and then only to the extent necessary so that the total applicable limits of all valid and collectible insurance for the benefit of such Insured shall be not less than the limits of liability stated in the Declarations.” The Southern General policy contained no “other insurance” clause. The trial court found in favor of Albert Boerste, as executor of the Estate of Francis J. Boerste, on his motion for summary judgment and Southern General appeals. Held:

1. Southern General contends that Francis J. Boerste was excluded from coverage by the terms of its policy because he was an employee of Augusta Aviation, which was an independent contractor to Allgood Healthcare. The Southern General policy defines “insured” as, in addition to the named insured, “any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is with your permission. This does not apply to any employee with respect to bodily injury of another employee of the same employer injured in the course of such employment. This does not apply to any person or organization or to any agent or employee thereof (other than an employee of the Named Insured while acting in the course of his employment by the Named Insured) engaged in the manufacture or sale of aircraft or aircraft parts, nor in the operation of an aircraft repair shop, airport hangar, aircraft sales agency, aircraft rental service, commercial flying service or flying school with respect to any occurrence arising out of such manufacture, sale or operations. This does not apply to any person operating the aircraft under the terms of any rental agreement or training program which provides any remuneration to you for use of said aircraft.”

The trial court held, in ruling on plaintiffs motion for summary judgment, that Francis J. Boerste “was at the time of the incident at issue an insured under the policy of insurance issued by Southern General Insurance Company and Southern General Insurance Company has the primary obligation to defend the Estate of Francis J. Boerste in the action pending in the Superior Court of Richmond County, Georgia, Civil Action File No. 88-RCCV-596, captioned Philip Brian Clark, a Minor, by P. J. Clark, as father and natural guardian vs. Albert Boerste as Executor of the Estate of Francis J. Boerste and Augusta Aviation, Inc.” While there have been no Georgia cases interpreting this issue in regard to aviation liability insurance policies, the automobile liability insurance decisions are clearly analogous. See also State Farm Fire &c. Co. v. Holton, 131 Ga. App. 247 (205 SE2d 872) (1974), applying principles of automobile liability insurance law to motor boats. In automobile liability insurance cases, “ ‘it is usually held that the policy issued to the owner of the vehicle is the “primary” policy and the insurer issuing it is liable up to the limits of the policy without apportionment. The policy providing that it shall be excess insurance as to non-ownership coverage is not regarded as collectible insurance until the limit of liability of the primary policy is exhausted. (Cits.)’ ” Georgia Mutual Ins. Co. v. Southern Gen. Ins. Co., 181 Ga. App. 238, 239, 240 (351 SE2d 658) (1986). This rule has been followed in other jurisdictions in regard to aviation insurance coverage, and we see no reason not to do so here. See, e.g., Fort Myers Airways, Inc. v. American States Ins. Co., 411 S2d 883 (Fla. App. 1982); Buck v. U. S. Aviation Underwriters, 763 F2d 224 (6th Cir. 1985). Since Francis J. Boerste was flying the airplane owned by the named insured, Allgood Healthcare, and using it with its permission, Southern General would be the primary insurer here even if its policy had also contained an “other insurance” clause. Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga. App. 426 (2) (160 SE2d 603) (1968).

2. Southern General’s argument that Francis J. Boerste was excluded as an insured under its policy because he was an employee of Augusta Aviation, and merely an independent contractor as to All-good Healthcare, must likewise fail. “ ‘ “ ‘The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. (Cits.)’ (Cit.)” (Cits.)’ [Cits.] ‘ “Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.” The test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract. (Cit.)’ (Emphasis in original.) [Cit.]” Atlanta Braves v. Leslie, 190 Ga. App. 49, 51 (2) (378 SE2d 133) (1989).

In the case sub judice, the test is whether, when Allgood Healthcare obtained Francis J. Boerste’s services as a pilot from Augusta Aviation it retained the right to control and direct him in the accomplishment of his assigned task. While Boerste’s special skills as a pilot were obviously necessary for the services to be rendered, it is undisputed that Allgood Healthcare controlled the destination and time of the flight, and had it changed these plans Boerste would have been obligated to comply. “It is the control of the relationship and not of the instrument which determines the relationship between the parties. One may be a servant or agent of another even though the employee is so much more skilled in the endeavor that actual assumption of the control would be a ‘folly.’ [Cit.] The fact that [Francis J. Boerste] was also an employee of [Augusta Aviation] is not controlling. Under the common law of master and servant, a servant can at one time be generally the employee of his general employer and specially the employee of a special employer. [Cit.]” Fort Myers Airways v. American States Ins. Co., supra at 886. See also Moss v. Central of Ga. R. Co., 135 Ga. App. 904, 906 (219 SE2d 593) (1975). We agree with the reasoning of the United States Court of Appeals, Sixth Circuit, in Buck v. U. S. Aviation Underwriters, 763 F2d 224, supra, that under well-established principles governing the construction of insurance policies, the clause excluding coverage for “any employee,” or as is the case here, (“any person . . . other than an employee of the Named Insured while acting in the course of his employment for the Named Insured”), should not be distinguished on the basis of “whether the employment be regular and continuous or incidental and temporary. . . . The term ‘any employee’ must be liberally construed to extend coverage to [Francis J. Boerste], who was serving as a temporary employee operating [Allgood Healthcare’s aircraft] at the time of the accident.” Id. at 227.

3. Southern General further contends that Clark’s presence as a passenger in the airplane was outside the permission granted by All-good Healthcare for the use of the plane, and therefore voided coverage under its policy. However, the appellate courts of this State have taken an adverse position in considering similar omnibus clauses in automobile policies dealing with “actual use” of the insured vehicle with permission by the named insured. As stated in Strickland v. Ga. Casualty &c. Co., 224 Ga. 487, 489 (2), 490 (162 SE2d 421) (1968), “[t]he policy, among other things, insures against obligations arising from the negligent or unlawful operation of the described vehicle. Under [Southern General’s] contention, if the named insured permitted the use of the vehicle and at the same time prohibited its negligent or unlawful operation, it would defeat the very purpose of the policy.” “Thus, where a third person utilizes a vehicle via another person who did have permission from the owner, the fact that such third person had neither express nor implied permission from the owner is irrelevant.” Georgia Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co, 190 Ga. App. 593 (1), 594 (379 SE2d 619) (1989). It follows, there being no genuine issues of material fact, that the trial court’s grant of summary judgment holding Southern General to be the primary insurer was correct.

Decided May 3, 1990

Rehearing denied May 16, 1990

Fulcher, Hagler, Reed & Obenshain, William C. Reed, Ronald C. Griffeth, for appellant.

Burnside, Wall & Daniel, James B. Wall, Mozley, Finlayson & Loggins, William D. Harrison, Deborah Finnerty, Knox & Zacks, Raymond G. Chadwick, for appellees.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A90A0245.
    SMITH v. THE STATE.
    (394 SE2d 558)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of reckless endangerment, following too closely, and two counts of simple assault. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The trial court’s purported overruling of a motion to suppress the victims’ identification testimony is enumerated as error.

The record reveals that appellant’s motion was not denied. Instead, the trial court, in the proper exercise of its discretion, merely refused to conduct a pre-trial hearing and held that the issue of the admissibility of the victims’ testimony should be raised during the trial itself. Day v. State, 237 Ga. 538, 541 (3a) (228 SE2d 913) (1976). See also State v. Johnston, 249 Ga. 413 (291 SE2d 543) (1982). During the trial, appellant never requested that a preliminary hearing be conducted before the victims testified and identified him as the perpetrator. No ruling by the trial court on the admissibility of the victims’ identification testimony ever having been properly invoked, this enumeration presents nothing for review.

2. Appellant filed a motion in limine, seeking, in effect, to prevent the State’s witnesses from testifying that they had seen a gun in appellant’s possession at the time of the alleged offenses. The State’s witnesses were obviously entitled to testify to what they had themselves observed and the denial of the motion in limine was clearly not error.

Decided May 1, 1990

Rehearing denied May 16, 1990.

Wayne L. Burnaine, for appellant.

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

3. A communication between a witness and a spectator is not a violation of the rule of sequestration, and appellant’s motion for mistrial, which was predicated upon the alleged occurrence of such a communication, was properly denied. Burroughs v. State, 186 Ga. App. 40, 42 (5) (366 SE2d 378) (1988).

4. Although the denial of appellant’s motion for a directed verdict of acquittal is enumerated as error, the evidence was sufficient to authorize a finding of appellant’s guilt under the standard established by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590) (1981).

5. The State’s failure to call one of its witnesses who had been listed on the indictment affords appellant no ground for new trial. “The law does not require State’s counsel to introduce as witnesses all whose names appear on the indictment. . . .” Lucear v. State, 221 Ga. 572, 573 (3) (146 SE2d 316) (1965).

Judgments affirmed.

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


text:
    A90A0300.
    GUY v. McKENZIE et al.
    (394 SE2d 576)
   McMurray, Presiding Judge.

Shortly after plaintiff Guy obtained and ingested controlled substances, the automobile he was driving failed to negotiate a curve, left the road and struck a telephone pole, resulting in serious injuries to plaintiff. Plaintiff seeks damages for his personal injuries and property damage alleging that they are the result of the negligence of defendant McKenzie d/b/a McKenzie Drugs in failing to properly secure access to controlled substances thereby permitting an employee of the pharmacy, defendant Marr, who was not a registered pharmacist, to provide plaintiff with the drugs without a prescription.

Defendant Marr had been removing controlled substances from his employer and selling them for one-and-a-half to two years, but was discovered only when he attempted to sell them to an undercover police officer several months after plaintiff’s automobile wreck. Plaintiff argues that defendant McKenzie was negligent in permitting a non-pharmacist to have access to the controlled substances and in failing to conduct accurate inventories which would have exposed the removal. Held:

Decided May 4, 1990

Rehearing denied May 16, 1990

Charles P. Giallanza, Marc W. Mendelson, for appellant.

Swift, Currie, McGhee & Hiers, Julie L. Ginden, Stephen L. Cotter, Joseph E. Weatherford, Jr., for appellees.

This appeal is taken from the grant of summary judgment in favor of defendant McKenzie. Plaintiff’s eight enumerations of error present a single issue, whether this case is controlled by Sutter v. Hutchings, 254 Ga. 194, 198 (fn. 7) (327 SE2d 716). We hold that it is and affirm.

“As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider. [Cit.]” Sutter v. Hutchings, 254 Ga. 194, 198 (fn. 7), supra. See also Southern Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611, 612 (1) (359 SE2d 385). Contrary to plaintiff’s contention, we view the above principle equally applicable where, as in this case, the drug involved is a controlled substance (see OCGA § 16-13-1 et seq.) rather than alcohol.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.