author: Deen, Presiding Judge.

text:
    A89A2232.
    A89A2233.
    A89A2234.
    UNDERWRITERS ADJUSTING COMPANY et al. v. KNIGHT. MORRIS & TEMPLETON INSURANCE AGENCY, INC. v. KNIGHT et al. KNIGHT et al. v. MAYFLOWER INSURANCE COMPANY, LTD.
    (389 SE2d 24)
   Deen, Presiding Judge.

John and Claire Knight purchased homeowner’s insurance from Mayflower Insurance Company, through the Morris & Templeton Insurance Agency, Inc., insuring the home that eventually was severely damaged by fire. The policy contained a $179,000 limit to this coverage, subject to a guaranteed building/structure replacement cost amendment. The amendment provided that should the cost of repair or replacement exceed the policy limit, the insurer would pay the actual cost of repair or replacement and up to an additional 70 percent of that repair cost for loss of personal property.

Russell Gilbert, an adjuster with Underwriters Adjusting Company, handled the claim filed by the Knights following the fire. The original estimate for the repairs to the house was $75,118.37. The Knights actually spent a total of $140,875.13 for the repairs and some additional improvements to the house; the cost of the additional improvements was $40,620.32, which the Knights did not claim under the policy. The insurer ultimately paid the Knights the policy limit of $179,000, and denied the $168,310.04 remainder of their claim for loss of personal property.

The Knights commenced this action against the insurer, the insurance agency, the adjuster, and the adjusting company. The trial court’s denial of the motion for summary judgment filed by the adjuster and the adjusting company provides the basis for Case No. A89A2232. The trial court’s denial of summary judgment for the insurance agency is the subject of Case No. A89A2233. Case No. A89A2234 concerns the trial court’s grant of summary judgment for the insurer. Held:

1. The policy of insurance in the instant case clearly provides for a limit of $179,000 coverage, which the Knights received. The replacement cost amendment was not applicable because the actual cost of repair did not exceed the policy limits. It was undisputed that the Knights never read the insurance policy, through no fault of any other party. Under these circumstances, the trial court properly granted summary judgment for the insurer. The Knights as insureds had the legal duty to examine the policy and observe what coverage was provided. Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152 (351 SE2d 498) (1986).

2. Generally, an insured’s claim asserted against an insurance agency for its alleged failure to obtain appropriate coverage is similarly defeated by the insured’s failure to examine the policy. Epps v. Nicholson, 187 Ga. App. 246 (370 SE2d 13) (1988); Ethridge v. Assoc. Mutuals, 160 Ga. App. 687 (288 SE2d 58) (1981). An exception exists where the agent holds himself out as an expert in the field of insurance and who performs such expert services for the insured. Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974).

That exceptional circumstance, however, did not exist in the instant case. The insurance agent viewed the Knights’ house and contents, and indicated a value of $100,000 for the house, which was acceptable to the Knights. When the agent explained that usually personal property was insured at one-half the amount of the insured value of the house, the Knights expressed concern that that figure might be too low, and coverage on the personal property was increased to $75,000. (The policy’s limit was later increased by $4,000 to offset inflation.) The insurance agent did not provide any expert service in determining the coverage under the policy, and the trial court should have granted summary judgment for the insurance agency. Ethridge v. Assoc. Mutuals, supra.

Decided November 30, 1989.

Drew, Eckl & Farnham, H. Michael Bagley, Charles R. Beans, for Underwriters.

Beckmann & Lewis, Leo G. Beckmann, Jr., for Knight.

Daniel C. Cohen, Wayne L. Durden, for Morris & Templeton.

3. The Knights claim that they discarded most of the damaged personal property in the house without attempt to salvage, in reliance upon the adjuster’s representation that it would be replaced by the insurer. They contend that had the adjuster made it clear that their claim under the policy was limited to $179,000, they would have made more effort to salvage. The Knights acknowledge that they are unable to establish the salvage value of this personal property that was thrown away.

As discussed above, the responsibility for any misunderstanding or misinformation concerning the limits of coverage under the policy lies with the Knights in this case. Any reliance upon the adjuster’s statement that the personal property would be replaced must be considered in light of the Knights’ failure to inform themselves of the policy limits. The adjuster had no authority to settle a claim beyond the coverage of the policy, Assurance Co. of America v. Bell, 108 Ga. App. 766, 776 (134 SE2d 540) (1963), and the Knights’ failure to determine the policy limits and govern themselves accordingly defeats their claim against Gilbert and Underwriters Adjusting Company, for negligent adjustment of their claim under the policy. The trial court should have granted summary judgment for the adjuster and the adjusting company.

Judgment affirmed in Case No. A89A2234, reversed in Case No. A89A2232 and in Case No. A89A2233.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1049.
    GRIFFITH v. BROOKS.
    (389 SE2d 246)
   Birdsong, Judge.

This is an appeal by the natural father of a 3-V2-year-old boy, from the order granting adoption of the child to the mother’s second husband. The father, Michael Griffith, Jr., is and was at the time of these proceedings serving time in Wayne County Correctional Institute for rape and aggravated sodomy. He previously had been convicted of burglary and assault involving several different incidents. He filed an answer to the petition for adoption and objected to the action.

The appeal centers entirely upon the refusal of the trial court to have Griffith transported to Gwinnett County to be present at the adoption hearing. It appears undisputed in the record that Griffith did not have the $546 which was established to be the cost of transporting him to defend the civil case which would terminate his parental rights. Much discussion was had amongst counsel and the trial court as to whether Griffith’s father, Mr. Griffith, Sr., could have afforded to pay the cost of his son’s transport; the trial court evidently concluded that while Mr. Griffith, Sr., clearly loved his grandson, his interest in the child was not sufficient to prompt him to pay for transport of his son to protect his parental rights in the suit filed against him, and that even though the evidence showed the grandfather, Mr. Griffith, Sr., had an income of only $675 from Social Security, he owned a house and a mobile home vehicle, and could have funded the transport of his son from prison to these adoption proceedings, or could have intervened in the matter if his interest in the boy had been sufficiently genuine.

In denying appellant’s request for funds to be transported to attend the hearing on the adoption of his son, the trial court ruled: “The court feels like [on] the better side of discretion, Mr. Griffith Senior had sufficient assets in order to have gotten [Griffith, Jr.] up here if he wanted to. And if the grandfather has all that many assets and is not willing to advance the $500 to get him up here, it’s pretty apparent to the court that he doesn’t have a lot of interest in whether or not his boy is here to represent himself and testify in this case. . . . [DEFENSE COUNSEL]: We would submit that the issue is not the indigency of a person of the father [sic] who is not a party to this action. . . . [THE COURT]: I agree that that is the rule. However, the court doesn’t sit in a vacuum, you know. Even the Supreme Court Justices invite some permanent person down there that’s unique in their field to discuss with them, they’ve had architects and Coach Dooley to keep up with what’s going on in the world. . . . Mr. Griffith Senior is here, and he also had visitation rights, and I just think that the assets are available to Mr. Griffith, Jr. to have been here had they seen fit to do so. . . . He’s had sufficient notice of this, he’s been incarcerated by his own willful act, and . . . obviously, this trial judge would much, much, much prefer that your client be here. Nothing is harder in this world than to be a trial judge to try a case when one party is not here. But y’all have had ample time to get him here. And I just don’t think the evidence warrants the State carrying this expense. [DEFENSE COUNSEL]: I understand the court’s ruling. I was just merely pointing out that it’s the indigency of the defendant in the case that we’re talking about, and obviously he is in prison and is not earning any money, does not have the assets to pay for transportation, and that’s why we requested that he be brought by the State. [THE COURT]: I agree. But the court’s finding is not that Mr. Griffith Senior had any legal right in which to do so, but if Mr. Griffith Senior had wanted to do so, there were funds available.”

The adoption hearing proceeded. The evidence showed without dispute that the child, now S-V2, had lived with his mother and Mr. Brooks (who the court ruled had at least a common law marriage) since the boy was five months old. Mr. Brooks, age 44, has a stable job earning approximately $40,000 annually. Mrs. Brooks, age 29, has worked for eight years as a bartender, and works three nights each week: on Wednesdays from 7:00 p.m. till 2:00 a.m.; on Fridays from 7:00 p.m. till 3:00 a.m. and on Saturdays from 7:00 p.m. till 2:45 a.m.

The boy’s natural father was ordered in April 1986 to pay $50 per week child support. As of January 1987, he was $1,150 in arrears, having evidently paid $650. He last paid support in December of 1986. The following month, in January of 1987, he was in incarceration on the above-described charge, and has remained so since that time. There was no evidence he earns money while in prison or has any assets. His father, Mr. Griffith, Sr., testified appellant had been in an automobile accident before he was imprisoned and was unable to, or did not, work full time.

The evidence of appellant’s relationship with his child came principally from Mr. Griffith, Sr., and was essentially undisputed by any competent evidence: he testified that, at least before appellant was in prison, appellant visited his son and played with him, whenever the boy visited the grandparents under their visitation privileges — every other weekend, a week at Christmas, and a week in the summer. Appellant had not visited the boy in the boy’s home because he was never allowed to do so. Neither was Mr. Griffith, Sr., allowed to visit. Appellant did speak to the child on the telephone from time to time, but appellant could not call the boy at his home because this would necessitate a collect call from prison. The child’s mother testified appellant had sent one Christmas card to the boy, but (perhaps because the child was less than three years old) most of it was addressed to her, although appellant signed it with “love” to his son. Mr. Griffith, Sr., testified that the child could not be taken to prison to visit his father, but that when Mr. Griffith, Sr., visited or spoke to Griffith, Jr., appellant would ask about his son and ask to see pictures. The stepfather, Mr. Brooks, conceded that, from statements made by the child after visiting his paternal grandparents, evidently the child had spoken to his father on the telephone.

Mr. Griffith, Sr., testified that he loved his grandson and that appellant loved the boy; but, when questioned about the sincerity of his own interest in the child in view of that fact that he had not sought to intervene in the proceedings, he testified that he did not know he could intervene. (Following the grant of adoption to Brooks, the child’s grandfather did file a belated motion to intervene, contemporaneous with a motion for new trial.) Appellant’s attorney was asked by the court if, and how much, he was being paid to represent appellant’s interests, and the attorney responded that it was less than the cost of transporting appellant to the hearing would have been.

In his order of adoption, the trial court found that the hearing was originally set for May 1988, but was continued at appellant’s request so as to make arrangement to be present at the hearing; but the hearing was set again for September 20, 1988, and that appellant was not present; that his attorney requested another continuance but was denied. The trial court found as fact that the natural father “is incarcerated . . . and is serving a sentence of 15 years, to serve 12”; that, underlying that sentence, the father had entered a plea of guilty to the offense of rape and two counts of aggravated sodomy; that that same indictment showed on its face confinement, sentence, and convictions for the following felonies, to wit, four incidents of burglary, one count of robbery, and one count of aggravated assault. The court found the natural father and the mother were divorced by decree dated March 27, 1987, “and that [d]ecree required support for the minor child by the natural parent that has not been paid since the grant of the [f]inal [d]ecree.”

(Appellant was incarcerated in January 1987. The child was born January 13, 1985; based upon Brooks’ testimony that the child had lived with him since the boy was 5-Vi months old, it must be concluded that Brooks and the mother were living together since about July 1985. The criminal acts of rape and sodomy were shown by the indictment to have been committed by appellant on September 26, 1985. The indictment was returned in April 1986, the same month he was ordered to pay $50 per week child support.)

The trial court also found as fact that despite the April 1986, order to pay $50 per week child support, that as of January 15, 1987 (12 days before he was incarcerated) appellant was $1,150 in arrears, and “has not paid any child support since December of 1986 [and n] either the natural father nor anyone on his behalf has paid any child support since December, 1986.”

The trial court also found as fact: “The record shows that the natural father does not care for the child and that no natural bond of parent and child exists between the natural father and the minor child”; and that the best interests of the child would be served by the adoption.

The final order of adoption was prepared in a proposed form by Brooks’ counsel, with the court’s approval. However, finding of fact no. 11 of this order shows a large portion was struck through by the trial court and appears in full with the judge’s initials set out beside each strike-through, as follows: “The natural father has failed to provide support within the terms of OCGA § 19-8-6 (b) (2) and the natural-father has failed to communicate or make a bona-fide attempt to communicate with the child-as provided in OCGA § 19-8-6 (b) (1), in that he has made no effort to-contact the child by telephone at the mother’s residence; has talked-to-the child only three (3) times since his-incarceration while the child was visiting with William Thomas Griffith, Sr.-, and-mailed a Christmas card — to the natural mother in Decemberr-1987.” (The trial judge’s initials appear at the end of each line of stricken material.) Whereupon, the trial court found in its conclusions of law, as follows: “From the foregoing findings, the natural father has failed to comply with the provisions of OCGA § 19-8-6 (a) and (b) [judge’s initials], and the best interest of the minor child will be served by the grant of the [petitioner's prayer for [a]doption.” Held:

1. We reverse this order of adoption for illegality, but not upon the grounds emphasized by appellant concerning the refusal of the court to order the county, or some other entity, to pay the cost of transporting appellant from prison to the hearing to be present to defend against adoption of his child by another and the consequent termination of his parental rights. A judgment which is void for illegality is a mere nullity, and may be held so in any court when it becomes material to the parties to consider it; it is not necessary that the certain illegality which renders this judgment void, be raised below or else be waived, for the judgment is a nullity in the first place and cannot be relied upon. Barrett v. State, 183 Ga. App. 729, 730 (360 SE2d 400); Mason v. Carter, 223 Ga. 2 (2) (153 SE2d 162).

The findings of fact and conclusions of law do not, as a legal matter, support the order of adoption. The trial court perforce had to find grounds for this adoption in OCGA § 19-8-6, for the father refused to surrender his rights and they had not been terminated. OCGA § 19-8-3. But, the court based the order of adoption upon the legal conclusion indicated at OCGA § 19-8-6 (a), which refers solely to adoption without the necessity of a surrender or termination of parental rights, by a required finding of abandonment of the child by the parent, (or inability to locate the parent or insanity or other incapacitation to surrender, which are factors not pertinent to this case). There can be no mistake that the trial court concluded as a matter of law that the father had abandoned the child as referred to in § 19-8-6 (a), becáuse the court deliberately and intentionally struck through the additional conclusion proposed by Brooks’ counsel, which was a reference to § 19-8-6 (b).

Adoption laws are to be strictly construed in favor of natural parents, for the application thereof results in the severance forever of the paternal relation. Glendinning v. McComas, 188 Ga. 345 (3 SE2d 562); Johnson v. Strickland, 88 Ga. App. 281 (76 SE2d 533). Since it is crystal clear the trial court based this adoption upon the legal conclusion that appellant had abandoned his child, there must be in the record “clear and convincing evidence” that the natural parent’s rights were lost by abandonment, and by no other suggested or implied cause. In Williams v. Perry, 187 Ga. App. 586, 590 (370 SE2d 836), we held, as we have done many times, that in order to find abandonment, there must be “ ‘ “ ‘sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental. . . obligations growing out of the same, and forego all parental duties and claims.’ ” ’ ” (Emphasis supplied.) The appellate standard of review of a finding of abandonment is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost” in the manner found. Id.; In re B. D. C., 256 Ga. 511, 512 (350 SE2d 444).

We do not find in this record such clear and convincing evidence of abandonment as it is described in Williams v. Perry, supra, and neither, we think, did the trial court. We find no clear and convincing evidence to support the finding that the natural father “does not care about the child”; the undisputed testimony was to the contrary.

In fact, although the trial court found as fact “[t]he natural father has failed to provide support within the terms of OCGA § 19-8-6 (b),” this finding leads to no conclusion of fact or law: It is at best ambiguous because immediately following that statement, the court deliberately struck through, and refused to find, the proposed fact that he did so under subsection (2) of § 19-8-6 (b), which requires, as requisite for the finding of failing “significantly, for a period of one year or longer,” the finding of a failure: “(2) to provide for the care and support of the child as required by law or judicial decree. ...”

Not only did the trial court refuse to find an abridgement of § 19-8-6 (b) (2) as fact, but by deliberately striking through the language, it also refused to find what Brooks additionally proposed, that “the natural father has failed to communicate or make a bona fide attempt to communicate with the child as provided in OCGA § 19-8-6 (b) (1), in that he has made no effort to contact the child by telephone at the mother’s residence; has talked to the child only three (3) times since his incarceration while the child was visiting with William Thomas Griffith, Sr., and mailed a Christmas card to the natural mother in December, 1987.” (Strike-throughs omitted.)

We therefore find from the face of the order that the trial court refused to find appellant had failed to support his child as it would have been required to find under § 19-8-6 (b) (2); and refused to find the failure to communicate or make bona fide attempts to communicate, as required to be found by § 19-8-6 (b) (1).

Furthermore, the Conclusions of Law make it very clear the basis of the adoption was abandonment, under § 19-8-6 (a), and that the trial court, by striking through the proposed finding of a violation of subsection (b) of that statute, specifically and deliberately refused to conclude as law that there was a significant failure to communicate and support as described by § 19-8-6 (b).

It seems clear from all of what we have just described, particularly in the face of all the evidence of records, that although deeply impressed by appellant’s criminal record, the trial court itself did not find clear and convincing evidence that appellant had made an “ ‘ “ ‘actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims.’ ” ’ ” Williams v. Perry, supra at 590. We also find no clear and convincing evidence supporting the finding that appellant “does not care about” the child.

In all, on the face of the trial court’s order, the findings of fact do not support the conclusions of law, as to abandonment which was the only legal ground concluded upon which to terminate the father’s parental rights. And moreover, the evidence does not show clearly and convincingly that the evidentiary standards were met for a finding of abandonment under the standard set forth in Williams v. Perry.

2. As to funding the transport of appellant to allow him to be present at a hearing upon Mr. Brooks’ petition to sever his parental rights and adopt his child, see Thorne v. Padgett, 191 Ga. App. 814 (383 SE2d 160) (1989) (cert, granted).

3. Finally, while we express no opinion as to the trial court’s evident conclusions that appellant’s history of assaultive criminal behavior shows he is irredeemably criminal and that his sentence of incarceration to serve 12 years will destroy his ability to form any parental bond or provide support, we find it pertinent to note that the child in this case was, at the time the petition to adopt was filed, three years old. The father’s absence at the hearing evidently made it impossible for him to explain and be cross-examined as to his behavior since this child was born. The evidence in this record altogether does not show clearly and convincingly that the father is irredeemably criminal, or that, as of the time of the hearing below, when the child was only three years of age and the parent had been in prison for a period of only 14 months when this petition was filed, that “all the evidence was in” in the case and that it clearly and convincingly showed a present and continuing abandonment. The trial court did not find an abandonment of the child based upon the father’s criminal record, and we shall not infer one.

Decided November 16, 1989

Rehearing denied December 1, 1989.

Hartley, Puls & O’Connor, Alton G. Hartley, Edward F. O’Connor, Jr., for appellant.

Harrison & Harrison, G. Hughel Harrison, for appellee.

In our ruling here, we have construed the adoption laws strictly in favor of the natural parent, as we are required to do by law. Glendinning, supra; Johnson, supra.

Judgment reversed.

Been, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    A89A1520.
    JONES v. TURNER BROADCASTING SYSTEM, INC.
    (389 SE2d 9)
   Beasley, Judge.

Jones appeals the grant of Turner Broadcasting’s motion for summary judgment. Jones had brought a complaint alleging that Turner Broadcasting had misappropriated her idea for a television show entitled “Good News.” Turner’s answer denied the material allegations of the complaint and set forth several defenses, among which was that plaintiff’s purported concept and format for a television show lacked novelty, an element prescribed in Wilson v. Barton & Ludwig, 163 Ga. App. 721, 723 (1) (296 SE2d 74) (1982). The trial court agreed, granting summary judgment on that theory.

During the late 1960’s Jones had developed a sample script for a television, radio or newspaper program which emphasized the positive aspects of the news and our society. For several years thereafter Jones submitted her ideas to various stations and news sources in an attempt to attract interest for the development of the concept. In 1976 when she served as a guest commentator on a television station, Jones advised her viewers of the idea of positive programming and requested feedback from the public. Nothing concrete resulted from this experiment but Jones continued to contact stations in an effort to find employment and sell her ideas. In 1980 she met with the operations manager of Turner who reviewed three of her programs, “Good News,” “Newfangle,” and “Family Spotlight.” These scripts were forwarded to the Program Director/Station Manager of WTBS-TV, Sid Pike, for consideration. No official action was taken and the scripts were not returned. Then on August 22, 1983, Turner aired the magazine format show entitled “Good News.” Jones asserts that this was a wrongful appropriation of her program format.

The forward to Jones’ script noted that it was for use by radio, television or newspaper; that it embodied a documentary about, or interview of, persons who had performed good deeds or were involved in acts of a positive nature, and included history of the event or person and possible future emphasis. The two-page script by Jones consisted of an interview of an individual who had his life seriously impaired by drug abuse but changed because of a religious conversion. Jones’ material had neither been copyrighted nor patented.

“The elements essential to a recovery for the wrongful appropriation or conversion of an unpatented or unpatentable idea or product are: 1) the idea must be novel; 2) the disclosure of the idea must be made in confidence; 3) the idea must be adopted and made use of by the defendant; and 4) the idea must be sufficiently concrete in its development to be usable.” Morton B. Katz & Assoc. v. Arnold, 175 Ga. App. 278, 280 (2) (333 SE2d 115) (1985). Plaintiff contends that her idea was not only unique conceptually but novel as to format and composition.

To be novel the concept must be peculiar and not generally available or known to others in the trade. Wilson, supra. To be protected, an idea must possess genuine novelty and invention, which it cannot have if it merely is an adaptation of existing knowledge, albeit a clever, useful, or sensible adaptation. Wilson, supra at 725 citing Textile Rubber &c. Co. v. Shook, 243 Ga. 587, 591 (255 SE2d 705) (1979).

The idea of presenting good news on a broadcast as opposed to negative news might have been unique in the 1960’s but by the time it was presented to defendant it was not, having lost originality in the legal sense. By 1970, according to The Wall Street Journal, the idea was being widely discussed and tried in various broadcasting formats. The script proposed by Jones was that of any of the present feature news, documentary or current event programs utilizing clips, an interview, etc. It is comparable to People’s Magazine and Entertainment Tonight. The idea of uniting the concept and format might have been new, but not when it was presented to Turner in 1980. Any freshness arose solely from the fact that something already known and in use was utilized in an extended context. This does not constitute “novelty,” because creating a “new and better way of doing something” is not sufficient. Shanco Intl. v. Digital Controls, 169 Ga. App. 184, 187 (3) (312 SE2d 150) (1983). Without the element of novelty plaintiff was deprived of an essential element entitling her to recover. Morton B. Katz & Assoc., supra; Wilson, supra. See Murray v. Nat. Broadcasting Co., 671 FSupp. 236, 239-244 (S.D.N.Y. 1987).

Decided November 20, 1989

Rehearing denied December 1, 1989

Jacquelyn F. Jones, pro se.

Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, Anne G. McGlamry, for appellee.

We do not consider whether Turner might have been liable to Jones for her having disclosed or conveyed her ideas to it, see Nimmer on Copyright, § 16.05, p. 16-30, because that theory of recovery was not an issue below. Nevertheless, the question of novelty may even in that instance be controlling, see especially Murray, supra, and cases above cited.

Judgment affirmed.

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


text:
    A89A1777.
    SIMMONS v. HOLSEY TEMPLE CHRISTIAN METHODIST CHURCH et al.
    (389 SE2d 1)
   Deen, Presiding Judge.

Dorothy Simmons appeals from the summary judgment granted to defendants (appellees here) in a tort action filed by Ms. Simmons. Although the record before us is unclear, it appears that Ms. Simmons had been escorted against her will from the sanctuary of the defendant church by personnel from the defendant sheriff’s office, at the request of defendant church officials, and that she was charged with criminal trespass. In her complaint she alleged assault and battery and conspiracy and sought compensatory and punitive damages totaling $4,000,000. According to the record, she did not file a timely response to discovery or to the defendants’ motion for summary judgment and did not appear for the hearing on the motion. She enumerates as error failure to be given notice of the motion, the defendants’ failure to serve her with their requests for admissions, the commission of unspecified “crimes” by defendants/appellees, and the trial court’s failure to consider all the documents filed by appellant. Held:

Pretermitting consideration of the failure of appellant, acting pro se, to comply with the technicalities prescribed for the conduct of a civil action, we find no evidence of record to support the allegations of appellant’s enumeration of errors. Because appellant, by filing no response to the motion for summary judgment, failed to meet her statutory burden of piercing the movants’ allegations and affirmatively negating at least one essential element of defendants/appellees’ case, the trial court’s award of summary judgment was proper. OCGA § 9-11-56; Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637) (1987). Moreover, appellant has adduced no indicia of the existence of a dispute regarding any genuine issue of material fact or any competent evidence to support her bare allegations as to lack of notice, failure of the trial court to consider all the evidence, the existence of an actionable (i.e., criminal) conspiracy, or the commission of specific “crimes” or wrongs by the defendants. We find no error.

Decided November 2, 1989

Rehearing denied December 1, 1989

Dorothy M. Simmons, pro se.

Long, Weinberg, Ansley & Wheeler, Robin L. Peek, Alan L. Newman, Susan B. Forsling, for appellees.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A2216.
    STUCKEY HEALTH CARE, INC. v. STATE OF GEORGIA et al.
    (389 SE2d 349)
   Deen, Presiding Judge.

The appellant nursing home provider commenced this action against the appellees to recover for reimbursement of Medicaid payments. The trial court granted summary judgment for the appellant but did not specify the amount of reimbursement due, and the appellees appealed. That grant of summary judgment for the appellant was ultimately affirmed. State of Ga. v. Stuckey Health Care, 189 Ga. App. 126 (375 SE2d 235) (1988). Subsequently, the appellant filed motions for entry of judgment, for leave to amend its complaint to add claims for attorney fees, expenses of litigation, and pre- and postjudgment interest. The trial court entered judgment for the appellant for $290,069.09, the amount of reimbursement due which was not disputed by the appellees, but denied the other motions. The appellant then brought this appeal over the denial of its motions for pre- and postjudgment interest. Held:

1. The appellant never sought prejudgment interest until aftér this court had affirmed the trial court’s grant of summary judgment for the appellant. Under this circumstance, the appellant could not amend its complaint without leave of court. See OCGA § 9-11-15 (a), generally; Christopher v. McGehee, 124 Ga. App. 310 (183 SE2d 624) (1971). We find no abuse of discretion in the trial court’s denial of the appellant’s motion to amend and disallowance of any claim for prejudgment interest.

Decided November 20, 1989

Rehearing denied December 1, 1989

Stanley G. Jackson, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Kathryn L. Allen, Senior Assistant Attorneys General, for appellees.

2. OCGA § 7-4-12 provides that “[a]ll judgments in this state shall bear interest upon the principal amount recovered at the rate of 12 percent per year . . . The postjudgment interest provided for in this Code section shall apply automatically to all judgments in this state and such interest shall be collectable as part of each such judgment whether or not such judgment specifically reflects the entitlement to such interest.” In the instant case, the trial court denied the appellant’s request for postjudgment interest because the entered order granting summary judgment for the appellant did not specify any amount of recovery from which such postjudgment interest could be computed. However, the amount of Medicaid reimbursements claimed by the appellant in its pleadings and proven by affidavit was undisputed by the appellees. As there was no issue over the principal amount to be recovered in the event of liability, the omission of that specific figure in the original order granting summary judgment for the appellant does not render postjudgment interest incapable of determination. Cf. Pico, Inc. v. Mickel, 138 Ga. App. 856, 858 (230 SE2d 488) (1976). We conclude that the appellant was entitled to postjudgment interest.

Judgment affirmed in part and reversed in part.

Birdsong and Benham, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A0876.
    BROWN v. THE STATE.
    (389 SE2d 268)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of rape and the trial court imposed a life sentence. He now appeals. Held:

1. Defendant first asserts the general grounds.

At trial, the victim testified and positively identified defendant as the man who entered her home and raped her. Further, Officer Jim Lewis of the Columbus Police Department testified that he observed defendant in the area of the victim’s home shortly after the crime, that he noticed that defendant’s characteristics matched the general body description of the victim’s assailant, including a cast on his right arm, and that defendant fled when the officer stopped to question him. This evidence was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of raping the victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Mitchell v. State, 176 Ga. App. 32 (1) (335 SE2d 150).

Decided December 1, 1989.

H. Haywood Turner III, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Assistant District Attorney, for appellee.

2. Next, defendant contends the trial court erred in allowing one of the State’s witnesses, Detective Slouchick, to testify as to the substance of an out-of-court conversation between defendant and defendant’s former girl friend, Ms. Barrows. Defendant argues that this testimony was inadmissible hearsay. The State contends it was admissible for impeachment purposes.

Ms. Barrows testified as a defense witness and denied on cross-examination that she informed law enforcement officers that defendant had “told [her] that he saw some man running out of the [victim’s] trailer so he ran away, too[.]” In rebuttal, Detective Slouchick testified that Ms. Barrows contacted him after the rape and informed him that defendant had told her he did not rape the woman, that defendant had seen a man running from the woman’s home and that he got scared and ran.

“[A]nything heard by a witness while in the presence of the defendant is admissible and is not hearsay. [Cits.]” Latimore v. State, 170 Ga. App. 848 (1) (318 SE2d 722) (1984). Thus, any statement made by the defendant himself would be admissible and probative. Grindle v. State, 151 Ga. App. 164 (259 SE2d 166) (1979). See also Moore v. State, 240 Ga. 210 (240 SE2d 68) (1977). Therefore, the underlying statement by the defendant to Ms. Barrows would not have been hearsay and would have been admissible if testified to by the former girl friend. It follows that the officer’s testimony regarding the witness’ earlier statement is clearly admissible for impeachment purposes because of her previous contradictory testimony. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). The trial court did not err in admitting Detective Slouchick’s testimony.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1690.
    FULTON COUNTY v. COLLUM PROPERTIES, INC.
    (388 SE2d 916)
   Birdsong, Judge.

Appellant, Fulton County, appeals the order of the trial court denying its motion for new trial or judgment notwithstanding the verdict and the judgment entered pursuant to a jury verdict against appellant.

Appellant entered a lease agreement for a warehouse, which contained office space, owned by appellee. Subsequently, appellant declined to move into the premises asserting that appellee had failed to comply with certain alleged conditions precedent contained in the lease. Appellee brought suit for breach of contract. Held:

1. Appellant asserts that the trial court erred in denying its motion for directed verdict made at the close of plaintiff’s case, and in subsequently denying the motion for new trial or judgment notwithstanding the verdict.

a. Appellant’s multiple assignments of error contained within a single enumeration are in violation of OCGA § 5-6-40. However, in the interest of judicial economy we will address in Division 1 of this opinion all errors expressly raised in appellant’s first enumeration of error.

b. Appellant’s main contention is that the lease contained certain conditions precedent, pertaining to the modification of the building in accordance with a certain blueprint and the requirements of the City of Atlanta, which either were not performed or were not timely performed by the appellee thereby releasing appellant of any obligation under the lease agreement, and rendering appellant not liable to the appellee for its refusal to accept the premises.

The first paragraph of the leasing contract pertinently contains the following typed provisions: “[S]aid Tenant hereby leases and takes upon the terms and conditions which hereinafter appear, the following described property (hereinafter called ‘Premises’), to-wit: Building and adjacent land known as 446 and 454 Whitehall Street, S.W., Atlanta, Georgia. . . . Said building will be modified by Landlord at its expense substantially in accordance with the attached blueprint. . . . Said building, as so modified, will consist of approximately 10,700 square feet, and being known as 446 Whitehall Street., SW.” The lease further contains the following printed and typed special stipulation: “In so far as the following stipulations conflict with any of the foregoing provisions, the following shall control. 1. With reference to the modification of the existing building pursuant to Paragraph 1 (Premises) hereinabove, same will be done by Landlord in accordance with the requirements of the City of Atlanta. Further, all equipment, plumbing, heating, electrical, air conditioner, and sprinkler will be in good working order when Tenant occupies building.” In addition, paragraph 10 of the lease, a printed paragraph, provides in part that “Tenant accepts the Premises in their present condition and as suited for the uses intended by Tenant.” (Emphasis supplied.)

“Conditions may be precedent or subsequent. A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.. The breach of a condition subsequent may destroy the party’s rights under the contract or may give a right to damages to the other party, according to a true construction of the intention of the parties.” OCGA § 13-3-4. “The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.” OCGA § 44-6-41. Further, “[w]here the rules of construction will allow, equity seeks always to construe conditions subsequent into covenants and to relieve against forfeitures.” OCGA § 23-1-23.

No precise technical words are necessary to create a condition subsequent. Munford, Inc. v. C & S Nat. Bank, 151 Ga. App. 112, 113 (258 SE2d 766). Neither are precise technical words necessary to create a covenant. However, “[w]ords such as ‘on condition that,’ ‘if,’ and ‘provided,’ are words of condition, and in the absence of indication to the contrary, the employment of such words in a contract creates conditions precedent.” 6 EGL, Contracts, § 83. Also, “[e]xpress statements to the effect that a condition is to be construed as a condition precedent are often contained in contracts and are entitled to be so construed in carrying out the intent of the parties.” Id. It is readily apparent that the contested provisions of this leasing contract do not contain any of these words of condition. We further note that the lease on its face reflects that the provisions in question were negotiated and that the appellant/lessee had the lease reviewed and approved as to form by an assistant county attorney on the day of its execution. Nevertheless the absence of such words does not per se resolve this matter.

“While it is not always easy to determine whether the condition created by the terms of a conveyance is precedent or subsequent [cits.], the general rule is that, if the act or condition required does not necessarily precede the vesting of the estate [or usufruct], but may accompany or follow it, and if the act may as well be done after as before vesting of the estate [or usufruct], or if from the nature of the act to be performed, it is evidently the intention of the parties that the estate [or usufruct] shall vest and the grantee perform the act after taking possession, then the condition is subsequent.” Gordon v. Whittle, 206 Ga. 339 (2) (57 SE2d 169).

“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). We find that the questioned terms of this contract are clear and are not ambiguous. Accordingly, we must examine the document on its four corners to determine the intention of the parties. In so doing, we find it readily apparent that in addition to the lack of words of condition, the provisions in question fail to contain any express words of defeasance, forfeiture, or reversion in regard to the building modification provisions here in question. We are satisfied that it was not the intent of the parties at the time this lease was executed to provide for a condition precedent either in regard to making building modifications substantially in accordance with the referenced blueprint or in regard to making such modifications according to building requirements of the City of Atlanta.

Thus, in the instant case, if the language relied upon can be held to create any type of condition, it would necessarily be a condition subsequent. However, a lease will not be construed as containing a condition subsequent, “ ‘ “unless the language used by express terms creates an estate [or usufruct] on condition, or unless the intent. . . to create a conditional estate [or usufruct] is manifest from a reading of the entire instrument.” ’ ” Gordon, supra at 340 (1). Examining this lease in toto we find no such intent. Further, “[s]ince, under the terms of the instrument! ] here involved, there are no express words of defeasance, forfeiture, or reversion, the words employed will be construed as words of covenant, and not words of condition; and the remedy for a breach thereof by one having the right to enforce the same would be an action thereon for damages, and not a forfeiture of the estate [or usufruct] for condition broken.” (Emphasis supplied.) Id. at 340 (3); see Fulford v. Fulford, 225 Ga. 9 (1), 12 (165 SE2d 848); compare Munford, supra at 113-114. Thus, we conclude that appellant was not entitled to claim a forfeiture of contract in any event. OCGA § 23-1-23.

Moreover, we are satisfied that some evidence exists in the record to support the verdict of the jury and the judgment as rendered. Specifically, there exists some evidence that appellee not only complied with these leasing requirements, but that such compliance timely occurred.

We find the cases of Barnes v. Strohecker, 17 Ga. 340 and Strohecker v. Barnes, 21 Ga. 430, to be distinguishable from the facts in this case. In particular, appellant/tenant in this case expressly contracted to accept “the Premises in their present condition,” and the provisions in question contain no common words of condition and no words of forfeiture, defeasance or reversion.

Thus, for each of the reasons above discussed, we find all of appellant’s assertions in support of this enumeration of error to be without merit.

2. Appellant asserts that the trial court erred in refusing to give defendant’s charge number 12.

Decided December 1, 1989.

Alfred J. Turk III, for appellant.

Martin L. Elliui James V. Zito, for appellee.

Review of the record reveals that appellant failed to object at trial to the failure to give charge number 12, and failed to take exception to the substitute charge given by the trial court. Accordingly, appellant has waived the right to assert error on appeal to the trial court’s refusal to give the requested charge and to the court’s substitute charge. OCGA § 5-5-24; Morris v. DeLong, 183 Ga. App. 124 (2) (358 SE2d 285).

Appellant asserts for the first time in its brief that the trial court also erred because it should have sua sponte charged the jury as to conditions precedent pursuant to Rice v. Harris, 52 Ga. App. 42 (182 SE 404). This assertion is not contained within appellant’s enumerations of error; accordingly this issue is not properly before this court for review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272); Partain v. State, 139 Ga. App. 325 (6) (228 SE2d 292). Further, “ ‘[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.’ [Cits.] One cannot expand the scope of review or supply additional issues ‘through the process of switching, shifting, and “mending your hold.” ’ ” City of College Park v. Ga. Power Co., 188 Ga. App. 223-224 (372 SE2d 493).

Accordingly, we find this enumeration of error to be without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1894.
    LANE v. TAYLOR et al.
    (389 SE2d 26)
   McMurray, Presiding Judge.

Plaintiff brought suit against defendants seeking damages stemming from an automobile collision. Following a jury trial, a verdict was rendered in favor of plaintiff and against defendants in the amount of $5,000. A written judgment was never filed with the clerk. Nevertheless, plaintiff filed a motion for new trial. Plaintiff’s new trial motion was denied and plaintiff appealed. Held:

Pursuant to OCGA § 5-5-40, motions for new trial are to be made “within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.” In the absence of a written judgment, filed with the clerk, a motion for new trial will not lie. See Moore v. Moore, 229 Ga. 600 (193 SE2d 608); Deroller v. Powell, 144 Ga. App. 585 (241 SE2d 469). Furthermore, under our Appellate Practice Act, “both a written judgment and its entry by filing the writing with the clerk are essential prerequisites to an appeal. [Cits.]” Boynton v. Reeves, 226 Ga. 202, 203 (173 SE2d 702).

Decided December 1, 1989.

Dailey & Groover, Lewis M. Groover, Jr., for appellant.

Downey, Cleveland, Parker & Williams, Russell B. Davis, for appellees.

It follows that the appeal in the case sub judice is premature (no written judgment having been filed) and must be dismissed.

Appeal dismissed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A2307.
    A89A2308.
    SINGLETON et al. v. THE STATE. CHRISTENSEN v. THE STATE.
    (389 SE2d 269)
   Deen, Presiding Judge.

The Singleton brothers, Richard Wayne and Milton, appellants in Case No. A89A2307, and Ms. Christensen, appellant in Case No. A89A2308, were convicted of trafficking in cocaine and conspiracy to traffic in cocaine. All received prison terms plus fines. Christensen appeals from the judgment on the general grounds, and the Singletons enumerate a variety of errors, ranging from evidentiary insufficiency to denial of motions to suppress and for mistrial, to the court’s rulings regarding the admissibility of certain evidentiary materials proffered by the prosecution and the defense.

According to evidence in the record appellant Milton Singleton and his girl friend, appellant Christensen, had accompanied one Taylor (not a party to this appeal) to Florida. Two days after arriving in Florida Milton Singleton or a member of the Singleton family telephoned Richard Wayne at the Salt Lake City home he shared with a Ms. Worthen (also not a party to this appeal) and informed him that something was wrong and he (Milton) wished to return to Salt Lake City. Wayne and Ms. Worthen then flew to Florida, and all five began driving north in an automobile rented by Taylor; there was conflicting testimony as to whether Taylor had rented a second, identical automobile before leaving the Florida motel or somewhere along the route to Cordele, Ga.

Whatever the accurate version on this point, the five arrived at a Cordele motel in two identical vehicles, and Taylor engaged three adjacent rooms. During the night Taylor was somehow shot in the hand and required treatment of the wound. Medical personnel notified police, who commenced surveillance. Shortly thereafter they arrested Taylor, who informed them that the Singletons had five kilos of cocaine and were armed. A search conducted pursuant to a warrant revealed 5 kilos of cocaine secreted in Taylor’s luggage inside a locked briefcase bearing the Singletons’ fingerprints. A small amount of cocaine was found in Christensen’s purse and in the room she and Milton occupied; a small quantity of marijuana was found in Worthen’s purse. All five were found to be armed; semi-automatic weapons and ammunition were found in the Singletons’ rooms. Taylor pled guilty to the lesser charge of possession of cocaine with intent to distribute and was given a twelve-year sentence, and Worthen pled guilty to the marijuana possession misdemeanor charge and was allowed to go free on probation. The Singletons were convicted on both counts by a Crisp County jury, and the trial court merged the convictions for sentencing purposes. The Singletons and Christensen unsuccessfully moved for new trial and have filed the instant appeals. Held:

1. Milton Singleton’s first enumeration of error is the trial court’s denial of his motion to suppress. He alleges that in his search warrant affidavit the law enforcement agent made knowing and purposeful misrepresentations by omitting certain of Taylor’s statements which had been shown to be false. The record shows that, in evaluating the search warrant affidavit, the trial court expressly found that “the misstatements by Taylor during the initial interrogation were contrary to the facts as developed by the officers. When confronted with proof that his statements were false, Taylor changed his story. ... It was not necessary to set out in the affidavit. . . every aspect of the interview [,] including obviously incorrect statements.” See Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989).

Moreover, even if, arguendo, the omitted statements were material, suppression of the evidence would not necessarily be required under the exclusionary rule. In overruling an argument similar to that made here, this court in Adams v. State, 191 Ga. App. 916, 917 (383 SE2d 378) (1989), quoted from a United States Supreme Court decision: “ ‘[A] warrant issued by a magistrate normally suffices to establish,’ that a law enforcement officer has ‘acted in good faith in conducting the search’. ... In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Leon, 468 U. S. 897, 922, 926 (104 SC 3405, 82 LE2d 677) (1984). Here, as in Adams, supra, there is no evidence that either the magistrate or the officer acted improperly. The trial court properly denied the motion to suppress, and the enumeration has no merit.

2. Milton Singleton next alleges that he was erroneously denied standing to challenge the search warrant. Examination of the record reveals that, although the State at one point challenged his standing,' the trial court tacitly affirmed Singleton’s standing by hearing his motion to suppress. Thus this enumeration of error presents no issue for the reviewing court.

3. Milton Singleton and Richard Wayne Singleton enumerate as error the sufficiency of the evidence to prove them guilty of either the trafficking in cocaine charge or that of conspiracy to traffick. In Thomas v. State, 255 Ga. 38 (334 SE2d 675) (1985), the Supreme Court held at 40, 41, that “[a] 11 those who conspire to commit a crime are guilty of that crime,” and, moreover, that “[p]arties to a crime, like conspirators, may be convicted of the commission of the crime.” In the instant case it is clear that the crimes with which the appellants were charged were actually committed; the evidence further indicates, moreover, that the actions of the appellants were such as clearly to show that they were involved in the crimes and were acting in concert. The evidence was clearly sufficient to authorize the reasonable trier of fact to find appellants (Ms. Christensen as well as the Singletons) guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). These enumerations are also without merit.

4. Both Singletons enumerate as error the admission into evidence of testimony concerning the seized cocaine because, prior to the trial, the State had ordered it burned. It appears from the testimony of an official of the Columbus, Georgia Crime Laboratory that the laboratory periodically distributes to district attorneys lists of physical evidence that are more than two years old; and that, pursuant to this policy, in March 1988, the laboratory sent such a list, which was in turn transmitted to law enforcement agencies in Crisp and Dooly counties. Receiving no response concerning the cocaine seized in the instant case, the laboratory, in accordance with its usual practice, had the substance destroyed at the Macon, Georgia steam generating plant of the Georgia Power Company.

In Sabel v. State, 248 Ga. 10, 17 (282 SE2d 61) (1981), the Supreme Court, citing Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), established the right of a criminal defendant “on motion timely made to have an expert of his own choosing . . . [to] examine critical evidence whose nature is subject to varying expert opinion.” Sabel reaffirmed not only the general principle enunciated in Patterson but also the requirement that the motion be “timely made.” Id. at 17, 18. In Patterson the motion was not made for nearly three years and was held to be untimely; in the instant case, according to the record, no motion requesting independent analysis of the substance seized was ever made. We find this enumeration devoid of merit.

5. The Singleton brothers enumerate as error the exclusion of the testimony of one Scott Dozier, who had shared the prison cell of the Singletons and Taylor, to the effect that Dozier had heard Taylor state that the cocaine belonged to him rather than to the others. The testimony had been excluded in response to the State’s objection that it was hearsay.

Appellants do not argue that the evidence Dozier would have given was anything other than hearsay, but, relying on Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979), contend that it nevertheless should have been admitted because of its exculpatory nature. In Green, supra, a hearsay declaration against the penal interest of a co-conspirator was held admissible during the punishment phase of the trial rather than, as here, during the guilt-innocence phase. One year after the Green decision Georgia’s Supreme Court held in Timberlake v. State, 246 Ga. 488, 493 (271 SE2d 792) (1980), that, under Green, such a declaration was admissible only in the punishment phase of a case, and then only under certain circumstances. The fact situation of the instant case being readily distinguishable from that in Green (most notably, of course, in that the excluded testimony was proffered during the guilt-innocence stage of the trial), it follows that the Green exception to the hearsay rule is inapplicable here and that this enumeration is without merit.

6. Richard Wayne Singleton enumerates as error the denial of his motion for mistrial after a Georgia Bureau of Investigation (GBI) agent allegedly implicated him while giving evidence admissible only against co-defendant Christensen. The trial transcript shows that in replying to a question by Richard Wayne Singleton’s counsel as to the exact date on which Christensen had told the agent that she had seen a quantity of cocaine, the agent replied, “Seems like it would have been the day before when they left Ft. Lauderdale.” Singleton contends that the use of the plural pronoun “they” rather than “she” violated the rule of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), regarding co-defendants. The transcript reveals that, both before and after the GBI agent’s testimony, there was testimony which established that all five of the persons involved had left Ft. Lauderdale together. The challenged testimony is therefore, at most, cumulative of other evidence and consequently cannot constitute reversible error. Welch v. State, 237 Ga. 665 (229 SE2d 390) (1976). This enumeration is also without merit.

7. In Division 3, supra, we held that the evidence was sufficient to authorize convictions for all the defendant/appellants. Ms. Christensen’s enumeration of the general grounds is therefore without merit.

8. Ms. Christensen also enumerates as error the trial court’s admitting into evidence her in-custody statement. The transcript reveals that the trial court conducted a Jackson-Denno hearing and found that her statement was freely and voluntarily made. Such a determination will not be disturbed absent patent error. Smith v. State, 159 Ga. App. 20, 21 (282 SE2d 677) (1981). We find no error here and therefore hold this enumeration to be without merit.

Decided December 1, 1989.

G. Russell Wright, for appellants (case no. A89A2307).

David E. Morgan III, for appellant (case no. A89A2308).

John C. Pridgen, District Attorney, for appellee.

9. The final assignment of error in these two cases is Ms. Christensen’s assertion that the trial court erred in denying her motion for mistrial. The basis of the motion was the GBI agent’s consulting the original of her signed in-custody statement, the actual reduction to writing having been done not by the agent who was testifying but by a different agent, who had also been present at the interview. After looking at the document, the agent who was on the witness stand proceeded to testify from his own recollection. Ms. Christensen’s counsel objected on the basis of hearsay, and when the objection was overruled, moved for mistrial.

It is well settled that a witness may use a document or other object to refresh his recollection if he then proceeds to testify from his own recollection. OCGA § 24-9-69; Bradshaw v. State, 162 Ga. App. 750 (293 SE2d 360) (1982). This enumeration has no merit.

Judgments affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A0820.
    HOLSEY v. ALLSTATE INSURANCE COMPANY.
    (389 SE2d 11)
   Pope, Judge.

This appeal arises from the trial court’s grant of summary judgment to defendant Allstate Insurance Company. The essential facts are not in dispute. Plaintiff Ricky L. Holsey and his wife were on their way to Hatcher Square Mall, in Milledgeville, Georgia. Plaintiff, along with several other cars, was stopped at a red light on Hancock Street in Milledgeville. When the light changed, the truck in front of plaintiff did not move, so he proceeded to go around the right side of the truck. Plaintiff then saw that there was a Buick Riviera stopped in front of the truck and that it was the Riviera and not the truck that was holding up traffic. Plaintiff testified that when he pulled beside the Riviera, it suddenly “took off.” Plaintiff also accelerated and pulled in front of the Riviera. Plaintiff turned right at the next intersection. Plaintiff testified he did not notice the Riviera again until he began to slow for another red light, and he felt something hit him in the rear. When he looked in his rear-view mirror, he saw the Riviera behind him. Plaintiff testified that he put his car in neutral, put on the brakes, and got out of his car in order to check the damage. Plaintiff started walking towards the back of his car, and the driver of the Riviera met him about where the gas tank cap is located on plaintiff’s car. The driver stated to plaintiff that he would never pass him like that again. While the driver was speaking, he raised his hand from his side, and plaintiff noticed for the first time that the driver had a pistol in his hand. The driver shot plaintiff in the abdomen and then got back in his car and drove off.

Plaintiff subsequently made a claim under the personal injury protection provisions of his automobile insurance policy issued by defendant Allstate Insurance Company. Defendant denied coverage and plaintiff filed the instant litigation, seeking to recover medical expenses, bad faith penalties and attorney fees. Defendant filed a motion for summary judgment on the basis that plaintiff was not “occupying” the vehicle at the time of the accident and that the injury did not arise out of the operation, maintenance or use of the motor vehicle. See OCGA §§ 33-34-7; 33-34-2 (1) & (8). The trial court granted defendant’s motion and plaintiff appeals. We affirm.

OCGA § 33-34-2 (8), the general language of which is tracked in the insurance policy here, defines occupying a vehicle as being “in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.” Here, plaintiff’s uncontradicted testimony established that he had exited the car and walked several steps away from the door at the time he was shot by the driver of the Riviera. “Accordingly, [plaintiff] clearly was neither ‘in or upon’ the [motor vehicle] nor ‘engaged in the immediate act of entering into or alighting from the motor vehicle.’ ” Cole v. Allstate Ins. Co., 173 Ga. App. 454, 455 (326 SE2d 817) (1985).

Plaintiff, however, relies on several cases in which the appellate courts of this state have seemingly extended the occupancy requirement “beyond physical presence.” See State Farm &c Ins. Co. v. Holmes, 175 Ga. App. 655 (333 SE2d 917) (1985); Partridge v. Southeastern &c. Ins. Co., 172 Ga. App. 466 (323 SE2d 676) (1984). However, those cases involved situations in which the “occupant” was either involuntarily ejected from the vehicle or was forced to abandon the vehicle because it was unsafe to remain there. In those situations, we have held that the injured party “remained an occupant of the car until he could reach a neutral zone or could be removed to one.” State Farm v. Holmes, supra at 657. In contrast, in the case at bar, plaintiff testified that he exited the vehicle to check the damage done to his car and to exchange insurance information with the driver of the Riviera. Plaintiff did not perceive any danger to himself until he saw the gun in the driver’s hand. Thus it cannot be said here that plaintiff exited the car in order to remove himself to an area of safety or “neutrality.” Moreover, we do not agree with plaintiff’s contention that because it was “necessary” for plaintiff to exit his car in order to assess the damage and exchange insurance information, that the reasoning applied in the “neutral zone” cases should be extended to the situation here. We conclude, therefore, that the trial court properly granted defendant’s motion for summary judgment on the basis that plaintiff was not “occupying” the vehicle at the time of the injury. See Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988); Cole v. Allstate Ins. Co., supra; Georgia Farm &c. Ins. Co. v. Jones, 172 Ga. App. 164 (2) (322 SE2d 296) (1984). See generally Kelley v. Integon Indemnity Corp., 253 Ga. App. 269 (320 SE2d 526) (1984). Consequently, it is unnecessary for us to consider whether the injury arose “out of the ownership, maintenance or use of a motor vehicle.”

Decided November 20, 1989

Rehearing denied December 4, 1989

Lonzy F. Edwards, for appellant.

Robert S. Slocumb, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Birdsong, Judge. Benham, Judge,

text:
    A89A1148.
    KENNEDY v. THE STATE.
    (389 SE2d 350)
   Birdsong, Judge.

Rodney Maurice (“Pogo”) Kennedy appeals his conviction of voluntary manslaughter. He had been indicted for malice murder in the stabbing death of William Thomas House, during or immediately after an argument or disagreement the two had concerning a cocaine deal, which had left appellant angry or disgruntled. Held:

1. Appellant Kennedy contends the trial court erred in admitting evidence of an irrelevant series of events involving several purchases by appellant of cocaine for others, including the deceased, and the use of cocaine by appellant and the deceased and others. These events began around 1:30 p.m. on March 25, 1988, and continued intermittently with appellant and the deceased each going to work in the meantime, and appellant leaving the job to purchase cocaine for the group, and then returning to work, until after midnight, when appellant left work. He returned to the motel room of these same friends, and confronted the deceased about appellant’s entitlement to a “cut” out of the last cocaine appellant had purchased for the group earlier that evening. The deceased avowed he could not give appellant any, because the cocaine was not his (the deceased’s). Appellant complained that the deceased had “done [me] dirty.” The argument which ensued escalated to a confrontation which appellant described as a struggle in which he acted in self-defense; but other witnesses testified appellant simply stabbed House. The varied versions were resolved by the jury with a verdict finding somewhat less than malice murder, i.e., voluntary manslaughter.

We reject out of hand appellant’s contention that the series of drug-related activities engaged in by appellant and the deceased beginning at 1:30 p.m. in the afternoon, and culminating in House’s death only a few hours later, were irrelevant to the cause and manner of death. The entire question set before the jury was the intention, or lack of intention, of appellant in killing William House; and the intention of appellant could only be discerned in the light of the entire series of drug transactions that the two had engaged in for hours immediately preceding the killing. In fact, in the circumstances of this case, the prosecution’s accusation of malice murder versus appellant’s claim of self-defense, could not be determined without a thorough delving into the relationship and activities of the two that preceded the killing, particularly since the deceased was not present to testify as to what happened during the few minutes before House was killed.

Appellant’s enumerated contention that the evidence of “drug use and transactions that occurred earlier in the day [were] not related to [the] incident at the Bartow Motel where the stabbing occurred,” is completely without merit as a matter of fact. The transactions were directly and intrinsically related. The entire series of drug transactions throughout the day ended in House’s death.

Appellant contends nevertheless that these matters involve “independent crimes and bad character [of] appellant that were not connected to the stabbing incident.” OCGA § 24-2-2 provides: “The general character of the parties and especially their conduct in other transactions are irrelevant matter[s] unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” (Emphasis supplied.) The evidence in this case showed fairly that House’s death was the culmination of, or at the very least occurred at the end of the drug transactions he and appellant had engaged in throughout the day.

When transactions involving other crimes and the alleged bad character of appellant are so connected in time and event as to be part of the same transaction as that for which the accused is being tried, they are admissible as a clear exception to the general rule of inadmissibility of other transactions. Durham v. State, 243 Ga. 408 (254 SE2d 359); Williams v. State, 223 Ga. 773 (158 SE2d 373); Bai ley v. State, 214 Ga. 409 (105 SE2d 320). The allegedly separate events are admissible in evidence when they are part of a continuous course of conduct, closely connected in time, place and manner of commission. Putman v. State, 251 Ga. 605 (308 SE2d 145), cert. den. 466 U. S. 954 (104 SC 2161, 80 LE2d 546).

Moreover, this evidence was admissible not merely as an exception to any rule, but as direct evidence. The events here in question were part of one long series of transactions that altogether resulted in the immediate confrontation between appellant and William House that ended with House’s death. In situations involving “prior difficulties,” which, unlike those in this case are not even related in time and activity, our courts have repeatedly held that such evidence is directly admissible, even if it does tend to place the defendant’s character in issue, because it is relevant to “illustrate the accused’s motive, intent, or bent of mind toward the victim,” and “ ‘is admissible [as otherwise] shedding light on the state of feelings between the accused and the deceased and showing motive.’ ” Hales v. State, 250 Ga. 112, 113 (296 SE2d 577). “ ‘Evidence which is otherwise admissible is not rendered inadmissible because it incidentally places the defendant’s character in issue.’ ” Id.; Boling v. State, 244 Ga. 825, 828 (262 SE2d 123).

We have no doubt the evidence of the continuing and intermittent activities engaged in by appellant and the deceased were entirely relevant in this case, and in fact necessary to a thorough investigation of the truth. Moreover, if there had been any question or doubt as to its relevance or competence, our rule has always been that, lest the truth be hidden, the evidence should be admitted and its weight left to the determination of the jury. “ ‘ “When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.” ’ ” Prothro v. State, 186 Ga. App. 836, 838-839 (368 SE2d 793), quoting Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205).

The trial court did not err in letting in the entirety of the evidence complained of.

2. Appellant contends the trial court erred in admitting in evidence a photograph of the deceased taken during the autopsy, which photo showed the deceased’s chest “completely laid open.” Appellant cites Brown v. State, 250 Ga. 862, 867 (302 SE2d 347) as conclusive law that such depictions of mutilation during autopsy “will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy.” The reason stated in Brown for this rule is “[t]he . . . mutilation of a body at autopsy has no . . . relevance and may cause confusion, if not prejudice, in the mind of jurors.”

The trial court did not err in the admission of the photograph in the circumstances of this case. The photograph allowed the jury to see the size and extent of the stab wound made by a 3-¥2 inch knife in the left ventricle of the deceased’s heart. Inferences fairly drawn from this viewing, upon the foundation laid by the medical examiner, could refute and contradict appellant’s version of the fatal event. Appellant contended House chased him not only before but after he stabbed House; from the evidence the jury might reasonably conclude the deceased could not likely have done so after sustaining such a wound to the heart. Witnesses testified appellant simply stabbed the victim as the victim stepped from the hotel room at the door; the State contended appellant did so in a burst of anger that House had offended “drug etiquette.” The jury could reasonably draw inferences consistent with the State’s version and testimony, by viewing the single deep hole in the heart, and determining whether it was made during an assaultive chase and struggle, and whether House could have done any more chasing after this stabbing.

The circumstances of this case fit neatly within the ambit of Brown, supra, for properly admitting such photographic evidence. Certainly the reason Brown denounced such evidence (that the “mutilation of a body at autopsy has no . . . relevance and may cause confusion, if not prejudice”; id.) does not apply here. The State’s purpose in showing this photograph was not to display the mutilation of the body at autopsy, but to show exactly what could only be seen in a photograph such as this: the fatal wound. We thus find no merit in this enumeration.

3. Finally, appellant contends he was erroneously denied a jury charge on “involuntary manslaughter,” based on his defense of self-defense, i.e., that he had committed a lawful act (self-defense) in an unlawful manner (by use of too much force).

This classic complaint, after long debate, has been resolved in this state. “[A] defendant who seeks to justify homicide under the ‘self-defense’ statute, OCGA § 16-3-21 [cit.], is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA § 16-5-3 (b) [cit.]) . . . [I]f he is justified in killing under OCGA § 16-3-21 [cit.], he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b) [cit.], for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful.” (Emphasis supplied.) Saylors v. State, 251 Ga. 735 (3) (309 SE2d 796); Stewart v. State, 182 Ga. App. 576 (356 SE2d 535). The logic of this statement is unassailable.

Appellant, indicted for murder and convicted of voluntary manslaughter, has no grounds for reversal of this conviction.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

I concur specially because, while I agree with the affirmance of the judgment of conviction entered against appellant, I find myself at odds with the majority’s affirmance of the admission of the autopsy photograph.

The photo at issue, taken after the victim had expired, depicts the victim’s open chest cavity and heart, as well as several blood-covered, gloved hands. The medical examiner testified that hospital emergency room surgeons had earlier sewn up the hole in the victim’s heart caused by the stabbing, and had reopened the victim to remove the stitches after the victim’s death, one and a half hours after the initial operation. The photo was taken after the stitches were removed.

In Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983), the Supreme Court announced that “[a] photograph which depicts the victim after autopsy incisions are made or after the state of the body is changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy.” “[I]t is error to admit photographs that portray damage to the victim’s body that was not caused by the assailant. [Cits.]” Roper v. State, 258 Ga. 847 (3) (375 SE2d 600) (1989). In the case at bar, it was unquestioned that appellant had stabbed the victim and that the victim had died as a result. Thus, the photograph was not “necessary” to show that the victim had died from a stab wound. The State maintains that the photograph was necessary to rebut appellant’s assertion that he had acted in self-defense. The State theorizes that the jury needed to view the internal stab wound in order to determine whether the victim could have assaulted appellant prior to the fatal stabbing, as appellant testified he did, and whether the victim could have chased appellant after the stabbing. I do not believe the jury was capable of looking at the photograph and discerning from it whether the wound was such as to refute appellant’s defense. In addition, the State had the testimony of eyewitnesses to establish what happened before the stabbing, and the testimony of the medical examiner, who stated that the wound the victim received would have incapacitated him within 20 or 30 seconds of the stabbing, to rebut appellant’s testimony concerning the victim’s post-stabbing capabilities. Brown clearly required the exclusion of the post-autopsy photograph of the victim’s heart. McCullough v. State, 255 Ga. 672 (2) (341 SE2d 706) (1986). However, due to the overwhelming evidence supporting the jury verdict, I must conclude that the admission of the photograph, although error, must be relegated to the category of harmless error. Heard v. State, 257 Ga. 1 (2) (354 SE2d 115).

Decided November 20, 1989

Rehearing denied December 4, 1989

Nelson & Bradley, Stephen R. Bradley, G. Carey Nelson III, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.


author: Carley, Chief Judge.

text:
    A89A1526.
    BENTON v. DAVID ALLEN COMPANY, INC.
    (388 SE2d 878)
   Carley, Chief Judge.

Appellee-defendant entered into a subcontract with Tyger Construction Company (Tyger) to install a brick sidewalk. The plans and specifications for the work to be done by appellee did not provide for the bricks in the sidewalk to be cemented into place. Instead, they provided for uncemented l-Vs’’-thick brick “pavers” merely to be laid in a compacted bed of sand. After appellee’s completion of the sidewalk, appellant-plaintiff tripped and fell while she was walking along it. Apparently, the uncemented “pavers” were subject to loosening when pressure was applied at their corners and appellant tripped and fell over one such loosened “paver.” As the result of injuries sustained in her fall, appellant filed suit against appellee and Tyger. In her complaint, appellant alleged that appellee had been negligent in failing to cement the bricks properly and that the sidewalk, as constructed by appellee, was imminently and inherently dangerous and a nuisance per se.

Having answered and denied the material allegations of the complaint, appellee subsequently moved for summary judgment. In support of its motion, appellee produced an affidavit wherein its vice president stated that the brick sidewalk had been installed in strict compliance with the design and material specifications provided by Tyger, over which appellee exercised no control and from which it was not permitted to deviate in any manner, and that Tyger had inspected appellee’s work, which was found to conform to the specifications and which was approved by Tyger and the owner. Based upon this uncontroverted evidence, the trial court granted appellee’s motion and appellant appeals from this grant of summary judgment in favor of appellee.

1. The law has long recognized that there is a distinction between the case wherein an independent contractor himself has been negligent in his actual execution of the work and the case wherein an independent contractor has otherwise performed the work in accordance with the negligent plans and specifications provided to him by his employer. “In determining whether an independent contractor is to be held liable for damages resulting from the work in connection with which he has been employed, ... it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskil[l]ful or negligent execution of the work the contractor (and usually not the employer) is liable. [Cits.]” Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607) (1909).

In those cases wherein an independent contractor himself has been negligent in his actual execution of the work, the law has long recognized that an acceptance of the work by his employer may provide the contractor with a defense to liability for injuries subsequently resulting from his negligent performance. “The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor’s failure to properly carry out his contract. [Cits.]” Young v. Smith & Kelly Co., 124 Ga. 475, 476 (52 SE 765) (1905). There are, however, exceptions to this “well established” defense to a contractor’s liability for his own negligent performance. The employer’s acceptance will not provide an independent contractor with a defense to liability for his negligent performance in those cases wherein the evidence shows that the completed work “is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons.” Young v. Smith & Kelly Co., supra at 476.

In those cases wherein an independent contractor has otherwise performed his work in accordance with the negligently designed plans and specifications provided to him by his employer, the law has only recently recognized that there is an exception to the general rule that the contractor’s duty does not extend beyond non-negligent performance and that it is the employer who must bear sole legal responsibility for injuries subsequently resulting from his negligence in the design of the work. “We do not agree that a contractor is entitled to put on blinders and ignore serious and dangerous defects in a design given to the contractor to execute. [Cit.] [If the contractor holds himself] out as an expert in . . . design and construction ... , we are not willing to hold that [he] can, as a matter of law, escape liability when the evidence could authorize a conclusion that the design was defective and that [he] should have known that the design would result in a [structure] dangerous to its users.” (Emphasis in original.) Shetter v. Davis Bros., 163 Ga. App. 230, 231 (293 SE2d 397) (1982). Thus, a contractor who claims expertise in design as well as performance may be liable when he complies with his employer’s defective plans and specifications. See C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150 (361 SE2d 34) (1987); Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655) (1986).

Application of the above-stated legal principles in the instant case would lead to the following conclusions: No genuine issue of material fact remains with regard to appellee’s liability for its own alleged negligent installation of the sidewalk because, under the undisputed evidence of record, the lack of cement to secure the “pavers” from loosening was not attributable to appellee’s negligent performance of the work, but to the plans and specifications provided to appellee by Tyger. Accordingly, any issue regarding exceptions to the general rule that acceptance of a completed work will insulate a contractor from liability for the consequences of his own negligent performance would be irrelevant. Under the evidence, there was no negligent performance on the part of appellee and, any allegation that the sidewalk, as constructed, was imminently and inherently dangerous and a nuisance per se would not, therefore, be material to the question of appellee’s liability for appellant’s injuries. The material issue would be whether a genuine issue remains with regard to the exception to the general rule that only Tyger can be held liable for the allegedly negligently-designed sidewalk. Under the evidence of record, there is nothing to authorize a finding that appellee has ever held itself out as an expert in the design of sidewalks. Compare Shetter v. Davis Bros., Inc., supra. It would, therefore, seemingly follow that the trial court correctly granted appellee’s motion for summary judgment. See C. W. Matthews Contracting Co. v. Marasco, supra; Price v. Reeves Constr. Co., supra.

2. However, in Powell v. Ledbetter Bros., 251 Ga. 649, 651 (3) (307 SE2d 663) (1983), the Supreme Court reversed the grant of summary judgment in favor of a contractor, holding that, “regardless of whether the plans and specifications are complied with[,] [t]here are well recognized exceptions to the general rule of non-liability of contractors who execute plans furnished by others. One such exception is that the contractor is liable where the work is inherently dangerous to third parties. [Cits.]” As discussed in Division 1, prior to the Supreme Court’s holding in Powell, the “inherently dangerous” condition of the completed and accepted work was always considered to be a “well recognized” exception to the general rule of non-liability of a contractor who had himself negligently executed the plans which were furnished to him. See Young v. Smith & Kelly Co., supra. In fact, the two cases cited by the Supreme Court in support of its holding are negligent performance cases. For the contractor who had performed in accordance with plans which were negligently prepared by others, there was a previously “well recognized” general rule of non-liability (see Bell & Son v. Kidd & Roberts, supra) which was, until the decision in Shetter v. Davis Bros., supra, without any specifically recognized exception.

Decided November 20, 1989

Rehearing denied December 4, 1989

Downing, McAleer & Gaskin, James E. McAleer, Mark H. Johnson, for appellant.

We are, nevertheless, bound by the Supreme Court’s decision in Powell v. Ledbetter Bros., supra at 651 (3). Accordingly, we are compelled to hold that those otherwise “well recognized” exceptions to a contractor’s non-liability for injuries resulting from the acceptance of his negligently executed work are, in this state, also exceptions to a contractor’s “well recognized” non-liability for injuries resulting from his compliance with the negligently designed plans and specifications of his employer. Although this has the anomalous effect of rendering a contractor vicariously liable for the negligence of the designer, this result is mandated by the Supreme Court. It follows that, notwithstanding the undisputed evidence of appellee’s adherence to the plans provided to it and the lack of any evidence of appellee’s expertise in the design of sidewalks, appellee may be held liable for appellant’s injuries if, as the result of Tyger’s design, the completed and accepted sidewalk was “inherently dangerous” or a nuisance per se.

3. Construing the evidence of record most favorably for appellant, appellee has failed to show that no genuine issue remains as to appellant’s allegations that the sidewalk was “inherently dangerous” or a nuisance per se. Although such issues would not otherwise be material to appellee’s liability under the analysis set forth in Division 1 of this opinion, they are material to appellee’s liability pursuant to the Supreme Court’s holding in Powell v. Ledbetter Bros., supra. Because we are compelled to follow a controlling Supreme Court decision, we must reverse the trial court’s grant of summary judgment in favor of appellee.

Judgment reversed.

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

Barrow, Sims, Morrow & Lee, Jordan D. Morrow, for appellee.


text:
    A89A1623.
    DUNCAN v. THE STATE.
    (389 SE2d 365)
   McMurray, Presiding Judge.

On May 30,1986, defendant Duncan was arrested and charged by uniform traffic citations with the offenses of driving under the influence of alcohol and improper lane usage. Subsequently, defendant was convicted of both offenses in the Gwinnett County Recorder’s Court. Defendant’s appeal to the Gwinnett County Superior Court was dismissed and she appealed to this Court. In Duncan v. State, 185 Ga. App. 854 (366 SE2d 154), this Court reversed defendant’s convictions after concluding that the convictions were for violations of state law and that the Recorder’s Court , of Gwinnett County was without jurisdiction to try defendant for a violation of state law (as opposed to a violation of a county ordinance). This Court also held that the proceeding by the recorder’s court was null and void and therefore did not bar defendant’s retrial on grounds of double jeopardy or prior prosecution. This Court’s decision in Duncan v. State, 185 Ga. App. 854, supra, remains the law of that case although this Court in Kolker v. State, 193 Ga. App.. 306 (387 SE2d 597) held that this Court exceeded its subject matter jurisdiction in deciding Duncan v. State, 185 Ga. App. 854, supra, rather than transferring that case to the Supreme Court of Georgia.

On September 26, 1988, and subsequent to this Court’s earlier decision in the case sub judice, defendant was charged by accusation in the State Court of Gwinnett County with having committed the offenses of driving under the influence of alcohol, improper lane usage, and simple battery. The alleged date of each of the offenses is May 30, 1986. Defendant filed a plea in bar in the State Court of Gwinnett County contending that the state court accusation “shows on its face that it was filed outside of the two-year statute of limitations, which violates OCGA § 17-3-1 (d) and prevents the State of Georgia from pursuing this prosecution.” The present appeal arises from the state court’s denial of defendant’s plea in bar. Held:

Generally, prosecution for misdemeanors must be commenced within two years after the commission of the crime. OCGA § 17-3-1 (d). The period within which a prosecution must be commenced under OCGA § 17-3-1 (d) does not include any period in which the person committing the crime is unknown or the crime is unknown. OCGA § 17-3-2 (2). The knowledge placed at issue by OCGA § 17-3-2 (2) is the knowledge of the State, which knowledge includes that imputed to the State through the knowledge not only of the prosecution, but also includes the knowledge of someone interested in the prosecution, or injured by the ofFense. State v. Brannon, 154 Ga. App. 285, 287 (2) (267 SE2d 888). Thus, the knowledge of a victim of a crime (Taylor v. State, 44 Ga. App. 64, 67 (2) 69, 70 (160 SE 667)) or of a law enforcement officer (Holloman v. State, 133 Ga. App. 275, 277 (4), 278 (211 SE2d 312)), is imputed to the State. It follows that the assistant solicitor’s argument in the case sub judice, that “appellee was not aware of the charges against appellant until August 7, 1987, when the charges were bound over to the State Court from the Recorder’s Court,” is not correct since the knowledge of the officer who arrested defendant on May 30, 1986, was imputed to the State on that date. See also Cain v. State, 144 Ga. App. 249 (240 SE2d 750).

Having determined that the period of limitation commenced on May 30, 1986, we next turn to the State’s contention that the period was tolled during the period that the earlier appeal in the case sub judice was pending before this Court. The sole authority cited for this proposition is a civil case, Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 172, 173 (1) (262 SE2d 481), which may be conceptually distinguished. In a criminal statute of limitation only an exception or condition contained within the statute will toll its operation. See 21 AmJur2d, § 227 and 22 CJS, § 228 (1). As the pendency of an appeal is not among the exceptions provided by OCGA § 17-3-2 to the running of the period of limitation provided by OCGA § 17-3-1, we find no merit in the State’s contention that the running of the period of limitation was tolled during the pendency of the previous appeal in the case sub judice.

While we conclude that prosecution of defendant under the state court accusation is barred by OCGA § 17-3-1, such does not require the complete grant of defendant’s plea in bar since defendant may be prosecuted under the uniform traffic citation which she received at the time of her arrest. Since the uniform traffic citation contains an accusation, the “accusation subsequently filed by the solicitor’s office is superfluous.” Majia v. State, 174 Ga. App. 432, 433 (1) (330 SE2d 171). However, the prosecution of defendant is limited to those offenses charged in the uniform traffic citation and since the state court accusation adds the charge of the ofFense of simple battery, defendant’s plea in bar should have been granted in part as to the charge of simple battery only. The state court did not err in refusing to dismiss the charges against defendant of driving under the influence of alcohol and improper lane usage charged in the uniform traffic citation.

Judgment affirmed in part and reversed in part.

Carley, C. J., and Beasley, J., concur.

Decided November 21, 1989

Rehearing denied December 4, 1989

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.