author: Banke, Presiding Judge.

text:
    75958, 75961.
    75959, 75962.
    75960, 75963.
    GOBER v. NISBET et al. (two cases). NISBET v. GOBER et al. (two cases). HOSPITAL AUTHORITY OF FULTON COUNTY v. GOBER et al. (two cases).
    (367 SE2d 68)
   Banke, Presiding Judge.

On September 21, 1983, Jack Russell Gober was shot and killed by an emotionally disturbed individual named Mark Baldwin during the course of a fatal assault by Baldwin against his (Baldwin’s) former wife. The killings took place in a restaurant where Baldwin’s former wife worked as a waitress and where Gober had the misfortune to be present as a customer.

More than three years later, on October 23, 1986, Mrs. Doris E. Gober, acting in her capacity as the executrix of her deceased husband’s estate, brought suit in the State Court of Fulton County against Dr. John Nisbet and the Hospital Authority of Fulton County, d/b/a Northside Hospital, seeking to recover damages for their alleged negligence in failing to foresee and prevent Baldwin’s homicidal conduct. On that same date, Mrs. Gober also joined with Mr. Gober’s children in filing a wrongful death action against Dr. Nisbet and Northside Hospital in the State Court of Fulton County, based on the same allegations of negligence.

At the time the Fulton County actions were filed, Mrs. Gober and her children had identical claims pending against these same defendants in the State Court of Gwinnett County. Unlike the Fulton County actions, the Gwinnett County actions had been filed within the two-year limitation period applicable to the claims. See OCGA §§ 9-3-33; 9-3-71. Seeking to avoid the bar of the statute of limitations in the Fulton County actions by maintaining them as renewal actions pursuant to OCGA §§ 9-2-61 (a) and 9-11-41 (d), the plaintiffs voluntarily dismissed the Gwinnett County actions on October 28, 1986 (i.e., five days after the Fulton County actions were filed) and subsequently paid the accrued costs owing therein.

The defendants asserted the bar of the statute of limitations as a defense in the Fulton County actions and moved for summary judgment on the basis of that defense, contending that the plaintiffs were not entitled to invoke the protection of the renewal statute because they had not ascertained and paid the accrued costs outstanding in the Gwinnett County actions prior to filing the Fulton County actions. The trial court declined to grant summary judgment to the defendants on the basis of this defense but did grant summary judgment in their favor on the merits of the plaintiffs’ negligence claims. Case Nos. 75958 and 75961 represent appeals by the plaintiffs from the latter ruling, while Case Nos. 75959, 75960, 75962, and 75963 represent separate cross-appeals by the defendants from the former ruling. Held:

1. The validity of a renewal action filed pursuant to OCGA § 9-2-61 (a) is contingent upon compliance with OCGA § 9-11-41 (d), which provides as follows: “Cost of previously dismissed action. If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.” (Textual emphasis supplied.) See Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). See also Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896) (1984) (holding that “payment of costs in a dismissed action is not an affirmative defense but a jurisdictional matter which may never be waived”).

In reliance on such recent decisions as Hiley v. McGoogan, 177 Ga. App. 809 (341 SE2d 461) (1986) and Daugherty v. Norville Indus., 174 Ga. App. 89 (329 SE2d 202) (1985), the plaintiffs contend that the trial court correctly determined that they had fulfilled the requirements of OCGA § 9-11-41 (d), based on their counsel’s affidavit that, prior to filing the Fulton County actions, she had made a “good faith inquiry” to the Gwinnett County Clerk’s Office to determine whether any costs were due in the Gwinnett County actions and had been informed that no costs would be assessed until certain counterclaims pending in those actions had been disposed of. The plaintiffs assert that their subsequent payment of the accrued costs in the Gwinnett County actions occurred within a reasonable time after they later learned of the existence and amount of those costs. However, even assuming that the plaintiffs’ failure to pay the costs of the Gwinnett County actions prior to filing the Fulton County actions was excusable under these circumstances, we must nevertheless conclude that the protection of OCGA § 9-2-61 (a) is not available to them, due to the fact that the Gwinnett County actions had not yet been dismissed at the time the Fulton County actions were filed.

OCGA § 9-11-41 (d) applies by its terms only to “previously dismissed” actions, and this court has previously held that “it is essential that the first action be dismissed and the costs paid before the second action becomes a valid and pending suit.” Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 63 (232 SE2d 399) (1977). (Emphasis omitted.) While we recognize that this court, in Hilliard v. Edwards, 169 Ga. App. 808, 809 (315 SE2d 39) (1984), later characterized Perry as holding that “the [renewal] statute also applies where the second suit is initiated while the first action is still pending,” that observation was mere dicta, and upon further study it is apparent that the Perry decision in fact contains no such holding. The two actions before us having been filed prior to the dismissal of the original actions, we hold that they do not stand on the same footing, as to limitation, as the original actions and that the trial court consequently erred in denying the defendants’ motions for summary judgment based on the running of the statute of limitations.

Decided February 17, 1988

Rehearing denied March 8, 1988

James E. Butler, Jr., Mary Lou Keener, John Manning, for Gober et al.

Terrance C. Sullivan, Timothy H. Bendin, for Nisbet.

Robert G. Tanner, Mark E. Bergeson, for Fulton County Hospital Authority.

2. As a result of the foregoing holding, it is unnecessary to address the correctness of the trial court’s grant of summary judgment to the defendants on the merits of the plaintiffs’ negligence claims.

Judgment reversed in Case Nos. 75959, 75960, 75962, and 75963. Appeals dismissed in Case Nos. 75958 and 75961.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    75281.
    WILLIAMS v. THE STATE.
    (367 SE2d 92)
   Sognier, Judge.

Appellant was charged with two counts of selling marijuana and one count of possessing, with intent to distribute, marijuana, in violation of the Georgia Controlled Substances Act. Appellant was acquitted of the charge of possessing, with intent to distribute, marijuana, and one count of selling marijuana, and convicted of one count of selling marijuana. In his sole enumeration of error appellant contends the trial court erred by denying his motion to sever the offenses for trial.

Offenses may be joined for trial when they are based (1) on the same conduct, or (2) on a series of acts connected together, or (3) on a series of acts constituting a single scheme or plan. Quick v. State, 166 Ga. App. 492, 494 (3) (304 SE2d 916) (1983). If the offenses are joined for any of these reasons, the defendant does not have an automatic right of severance, but the judge may grant severance if it is necessary to achieve a fair determination of the defendant’s guilt.

In the instant case the two counts of selling marijuana occurred on November 8, 1985, and January 5, 1986; the offense of possession of marijuana with intent to distribute occurred on April 3, 1986. All of the offenses charged occurred in Dawson, Georgia, and two of the incidents occurred at Johnson and Main Streets. The first sale on November 8 involved the automobile of appellant’s girl friend, and the second sale on January 5 occurred at the home of appellant’s girl friend; both sales were made to an undercover agent through an intermediary known as “Thumper.” The final incident occurred at the corner of Johnson and Main when the undercover agents, having completed their investigation, went to arrest appellant. When he saw the agents appellant started running and threw away a paper sack containing 18 plastic bags of marijuana. Even though the incidents occurred over a period of five months, the evidence indicates that appellant was engaged in a series of acts connected together, namely, selling marijuana, which constituted part of a single scheme or plan. See Hubbard v. State, 173 Ga. App. 127 (1) (325 SE2d 799) (1984). Under such circumstances appellant did not have an automatic right to a severance. Nor do we find that a severance was necessary to a fair determination of appellant’s guilt or innocence of each offense charged. This is demonstrated, in part, by the fact that appellant was acquitted of two of the three charges against him. Further, evidence of the two sales of marijuana would have been admissible as similar transactions in a separate trial for possession of marijuana with intent to distribute, to establish appellant’s intent to distribute the 18 bags of marijuana in his possession when he was arrested at the corner of Johnson and Main on April 3, the very location where he had sold marijuana previously. See Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982). Accordingly, it was not error to deny appellant’s motion for severance of the charges for trial.

Decided March 8, 1988.

C. Truitt Martin, Jr., for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    75708.
    75709.
    JERNIGAN AUTO PARTS, INC. et al. v. COMMERCIAL STATE BANK. CUMMINGS et al. v. COMMERCIAL STATE BANK.
    (367 SE2d 250)
   Beasley, Judge.

These companion appeals are from the grants of summary judgment to Commercial State Bank in its suits for the collection of unpaid balances of four promissory notes and enforcement of a personal guaranty.

Case No. 75708

In September 1981, Steve Jernigan, individually and d/b/a Jernigan Auto Parts, Inc., purchased an auto parts business. The terms of the purchase were payment of $80,000 to Commercial State Bank for the credit of the sellers, a note for $10,000 to the guarantor for the debt of the sellers to the bank, and payment of all other debts of the seller relating to the business except the sellers’ debt to the bank.

About a year after the purchase, Jernigan applied to the bank for an $180,000 loan, offering collateral and personal endorsements by himself and his wife on the note from the corporation, Jernigan Auto Parts, Inc., plus a personal guaranty on the note by Jernigan’s father-in-law, John J. Cummings, Jr. The loan was made and the borrowers disbursed the proceeds.

The terms of repayment of the $180,000 note were 180 monthly payments of $2,600 each, principal and interest. Beginning in January, 1985 until October, 1985 the note was periodically delinquent. On July 30, 1986, Cummings made a payment of $14,646.38 reducing the balance on the note to $140,946.91. On August 1, 1986, the bank took another note for a loan of $9,513.22.

The Jernigans sold the auto parts business and then in September made payments to reduce the indebtedness on the $180,000 note to $93,660.55 and on the $9,513.22 note to $9,357.09. The borrowers defaulted on the notes and the bank filed suit against the principal auto parts business, the Jernigans individually as the endorsers and Cummings as the guarantor on the first note to collect the unpaid balances plus interest and attorney fees.

The defendants responded to the suit and lodged a counterclaim asserting that the notes and the guaranty were obtained by the bank’s fraud and misrepresentation. They alleged that the bank, through its corporate officer Penn, convinced the Jernigans to sell their gas station and purchase the auto parts business which the bank had foreclosed upon, that Penn represented that the business was a good one, that the Jernigans should buy it, that any financing needed could be arranged, and that Penn convinced them to pay all the debts owed to the bank by the prior owners including one to a “favored depositor” of the bank. They further alleged that Penn had control of the books, bank statements, and daily deposits of the business, knew the financial condition of the business and deliberately withheld that information from them. They also claimed that Penn promised Cummings that the bank needed his guarantee only to get the loan approved, that the guaranty would be cancelled after two years, that Cummings’ guaranty was needed in order to release Penn from liability on prior notes connected with the business, and that the bank deliberately concealed the full scope of its actions and conduct from them until Steve Jernigan obtained knowledge of the “fraud and scheme” by looking through the bank’s file.

The bank moved for summary judgment submitting, inter alia, the affidavit of its president, Hanna, which in lengthy detail outlined the execution and terms of the notes and the guaranty and the Jernigans’ business transactions relative to the notes. The affidavit acknowledged defendants’ allegations of fraud and misrepresentation and stated that the tax return for the first year’s operation of the auto parts business showed it to be a “going concern with assets of $176,974.00 as of September 25, 1981, the approximate date of acquisition by the Jernigans, $163,864.28 as of December 31, 1981 after Jernigan had had the business for a little more than three months, and the income and expenses for the first eight months show a gross profit of $60,000.00”; that though defendants contended that Penn convinced them to sell their gasoline station and purchase the auto parts business, the Jernigans continued to operate the service station for approximately two months after they bought the auto parts business; that there was no promise to Cummings that his guaranty would be cancelled after two years; that there was no such two-year limitation in the guaranty, which was clear and unambiguous; and that there was nothing in the bank’s records to indicate an oral variation from the written contract.

The affidavit further stated that the August 1, 1986 note was made for the purpose of renewing and paying a part of the principal of two previous notes of Jernigan Auto Parts, Inc., that this second note was made and signed more than two years after Penn’s connection with the bank and almost ten months after Jernigan’s alleged discovery of the fraud, and that the Jernigans made one payment of $300 on the note on September 16, 1986.

The bank also submitted Penn’s affidavit. It stated that he had no connection with the bank since May 10, 1984; that he recalled Jernigan’s application to the bank for the $180,000 loan, the collateral that was offered; that Jernigan said that his father-in-law, Cummings, would guaranty the loan or endorse the note; that Cummings himself came to talk to Penn about the loan, said he would guarantee payment, and signed a guaranty agreement; and that at no time did he tell Cummings that his guaranty would be for only two years. It further stated that the loan was approved by the bank’s loan committee; that the loan papers were freely and voluntarily signed by the Jernigans and Cummings without any persuasion on the part of anyone; that he concealed no facts from the Jernigans; that the Jernigans were in control of the books of the corporation; that Mrs. Jernigan wrote and signed all checks for the corporation; that at the time of his resignation from the bank, payments on the note were current; that Jernigan’s sale of the service station was an act of his own, two months or more after going into the auto parts business; that insofar as he knew, the sale had nothing to do with Jernigan’s entry into another business; that when the Jernigans sought the $180,000 loan in September 1982, they had operated the auto parts business for about a year, either knew or were presumed to know what they were doing, and that there was “no concealment of any facts by anyone. They had them.”

In opposition to the motion was Steve Jernigan’s affidavit which tracked the allegations of Penn’s misrepresentation and fraud contained in the answer and counterclaim.

The trial court granted summary judgment to the bank against all defendants for the unpaid principal on the notes, past and future interest, attorney fees, and costs.

Defendants contend that there remain questions of fact, citing general principles of summary judgment law. They do not show just what material facts remain in dispute. They simply state that Hanna’s affidavit is a mere recital of the complaint, answer and counterclaim along with Hanna’s opinions as to their significance in this case and argue that opinion evidence alone is not sufficient to authorize the grant of summary judgment. They further argue that Penn’s affidavit directly addresses and opposes the facts set out in the pleadings and affidavit of Steve Jernigan and therefore goes only to the weight of the evidence.

It is undisputed that the note and guaranty were executed, that the funds were received, and that there were unpaid balances on the note, the amounts of which are also not in dispute. Unless the evidence on summary judgment raised a genuine issue of material fact as to fraud on the part of Penn in regard to execution of the notes and the guaranty such as would render the notes voidable, the bank was entitled to judgment as a matter of law.

1. Although bank president Hanna’s affidavit included many of the allegations in the pleadings, it also included Hanna’s statement that he was familiar with the bank records relative to the notes and that he was personally acquainted with the borrowers. It thus was not deficient for the reasons urged. See Murphy v. First Nat. Bank, 182 Ga. App. 788, 789 (6) (357 SE2d 266) (1987); see also Georgia Grain &c. Co. v. First Ga. Bank, 142 Ga. App. 709, 710 (3) (236 SE2d 913) (1977).

2. The challenge to the Penn affidavit is likewise without merit. While it directly opposes much of Jernigan’s affidavit, that is to be expected in moving for summary judgment. OCGA § 9-11-56 (e). It does not serve only to affect the weight of the evidence, but must be assessed along with the other evidence to determine if defendants’ defenses are pierced. Soni v. Coppedge, 159 Ga. App. 889, 890 (1) (285 SE2d 604) (1981).

3. The gravamen of the defendants’ position is that they should be relieved from paying the balance on the notes because of fraud on the part of the bank which induced them to purchase the auto parts business and hence to execute the notes. They claim that they discovered this fraud in October 1985. Yet they continued to make payments on both notes, as late as September 1986.

Fraud does not automatically void a contract; it only renders it voidable at the election of the injured party. OCGA § 13-5-5. “It is a well settled rule that if a party who is entitled to rescind a contract because of fraud or false representation, when he has full knowledge of all the material circumstances of the case freely and advisedly does anything which amounts to the recognition of the transaction, or acts in a manner inconsistent with its repudiation, it amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable even in equity. It is incumbent upon a party who attempts to rescind a contract for fraud to repudiate it promptly on discovery of the fraud. [Cits.] ... [If he does not], [h]e will be held to have waived any objection, and to be conclusively bound by the contract as if no fraud or mistake had occurred. [Cit.]” Woodall v. Beauchamp, 142 Ga. App. 543, 545 (1) (236 SE2d 529) (1977).

In the specific instance of a debtor and a creditor, “[w]here a debtor voluntarily pays a part of an amount claimed to be due by his creditor on a contract which the debtor seeks to attack on the ground of duress and fraud in an action against him by the creditor for an overdue installment thereunder he is conclusively deemed to have waived the duress and fraud if at the time of the partial payment he has knowledge of all the facts upon which he now bases his claim of fraud and duress as a ground for avoiding the validity and enforcement of the contract and at a time when the alleged duress was at an end. [Cits.]” Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330 (268 SE2d 384) (1980). See also Turner Advertising Co. v. Prakas, 164 Ga. App. 788, 789 (2) (298 SE2d 553) (1982); Milde v. Harrison, 162 Ga. App. 809, 810 (293 SE2d 56) (1982).

Even accepting defendants’ evidence as undisputed that the notes were entered into because of the bank officer’s fraud, the bank was still entitled to judgment because defendants waived the fraud and ratified the notes by their silence after they learned of the officer’s objected-to actions and by their subsequent payments on the notes.

4. As to the alleged time limitation on the Cummings’ guaranty, it was complete as written and any oral agreement between the bank officer and Cummings made prior to or contemporaneously with the guaranty would have been incompetent to change the contract as represented on its face. Whiteside v. Douglas County Bank, 145 Ga. App. 775, 776 (2) (245 SE2d 2) (1978). Secondly, a bank officer is precluded from making promises which will relieve the maker of a note payable to the bank from responsibility. What is more, the alleged promise by the officer to limit the duration of the guaranty would not be a basis for a claim of fraud in its procurement because “ ‘fraud cannot be predicated upon statements which are promissory in their nature as to future acts. [Cit.]’ [Cits.]” First Nat. Bank &c. Co. in Macon v. Thompson, 240 Ga. 494, 495 (241 SE2d 253) (1978). Finally, any fraud was waived or ratified by Cummings’ payment on the note following discovery of the bank records. See Hart, supra; Turner Advertising Co., supra; Milde, supra; Turner Outdoor Advertising v. Fidelity Eastern Fin., 185 Ga. App. 815 (366 SE2d 201) (1988).

5. The bank has moved for the imposition of damages pursuant to OCGA § 5-6-6 for a frivolous appeal. “In light of the fact that [appellants’] liability was clear and the fact that the amount of [their] liability was readily ascertainable, considered in conjunction with the meritlessness of the issues raised in this appeal, ‘[i]t does not appear that there was any valid reason for the [appellants] to anticipate reversal of the [trial] court’s judgment, and, consequently, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the [appellee’s] request for award of damages in the amount of 10 percent of [the] judgment is granted.’ [Cit.]” Karsman v. Portman, 173 Ga. App. 108, 110 (4) (325 SE2d 608) (1984). The cursory nature of appellants’ brief supports this conclusion. “The trial court is therefore directed to enter judgment in favor of the appellee for additional damages in the amount of 10 percent of the judgment, . . .” I.M.C. Motor Express v. Cochran, 180 Ga. App. 232, 233 (2) (348 SE2d 750) (1986).

Case No. 75709

This appeal involves the bank’s suit against Mr. and Mrs. Cummings to collect the balance due on two promissory notes which were renewals of prior notes, the final renewal notes made on September 22, 1986 and on June 10, 1986. The Cummingses defended the action and counterclaimed with the same claims of fraud on the part of the bank as made by the Jernigans and Mr. Cummings in Case No. 75708.

The bank moved for summary judgment with the supporting affidavit of Hanna which stated that he was personally acquainted with the Cummingses and was familiar with the bank records regarding the two notes, and which in great detail outlined the transactions and the defendants’ defense of fraud. The Cummingses countered with an affidavit by their son-in-law Jernigan which was verbatim Jernigan’s affidavit submitted in the other suit. A second counter-affidavit by John Cummings was submitted which also tracked the son-in-law’s affidavit save for the additional averment that on September 20, 1985 the then president of the bank, with knowledge of the alleged concealment by Penn, asked Cummings to put $25,000 into the “failing” auto parts business and that he agreed to do so after being assured it would save the business.

Decided March 8, 1988.

Ronnie Joe Lane, for appellants.

Julian Webb, for appellee.

Here again appellants merely make the general assertion that genuine issues of fact remain and challenge the Hanna affidavit. The Hanna affidavit is not deficient for the reasons cited. See Division 1, supra.

Save for the arguments regarding Cummings’ guaranty on the Jernigan note, which guaranty has not been shown to be relevant to the two notes at issue, the reasoning and principles which mandated judgment in favor of the bank in its suit on the Jernigan notes and the Cummings’ guaranty are likewise applicable in this suit.

Assuming the alleged fraud and misrepresentation by Penn induced the Cummingses to enter into the renewal notes, this was discovered in October 1985 and both notes were made in 1986. All of the alleged acts of fraud were known to the defendants prior to execution of the notes. Thus the execution of the notes cut off all defenses to payment of them. Lemco Gypsum v. Omni-Lift, 176 Ga. App. 534, 536 (336 SE2d 334) (1985).

Inasmuch as the bank showed that the makers failed to pay balances due on the notes, that the amounts are not in dispute, and that defendants failed to raise an issue of material fact as to a meritorious defense, the bank was properly awarded summary judgment on these notes as well.

Judgment affirmed with direction in Case No. 75708. Judgment

affirmed in Case No. 75709.

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


text:
    75771.
    KEITH v. THE STATE.
    (367 SE2d 255)
   Beasley, Judge.

Keith appeals his conviction and sentence for armed robbery, OCGA § 16-8-41, and the denial of his motion for new trial.

1. The first question is whether the trial court erred in failing to order a new panel of jurors because during the course of voir dire it became obvious to the panel members that he was being held in a cell in the courtroom.

He argues that inasmuch as the court refused his request to instruct the prospective jurors that restraint was not to be considered in assessing the proof and determining guilt, “it appears as if a gross injustice occurred” and his conviction should be reversed. Appellant relies on Howard v. State, 144 Ga. App. 208 (240 SE2d 908) (1977), and McKenzey v. State, 138 Ga. App. 88 (225 SE2d 512) (1976). Those cases differ in that the jurors had seen the defendants in handcuffs and prison garb and also that the defendants had unsuccessfully moved for mistrial.

Although Keith asked for a curative instruction he did not move for a mistrial and cannot complain by implying that a mistrial should have been granted. Merritt v. State, 255 Ga. 459, 460 (2) (339 SE2d 594) (1986); Flynn v. State, 255 Ga. 415, 419 (6) (a) (339 SE2d 259) (1986). Furthermore, there is no proof that the prospective jurors saw defendant restrained in any manner or that it would be obvious to the jurors that defendant was indeed exiting from a holding cell. Even assuming the jurors were aware that defendant was coming from a holding cell, this would not have been harmful because testimony at trial showed that defendant had been taken into custody. Edwards v. State, 180 Ga. App. 177 (348 SE2d 725) (1986).

2. Appellant contends that the trial court erred in refusing to admit into evidence a videotape prepared by defense counsel which attempted to re-enact the circumstances under which police officers observed defendant before arresting him.

There were a number of material dissimilarities between the circumstances in the tape and those leading to defendant’s apprehension so as to constitute a substantial variance from the actual event. Whether or not under the evidence the tape was a fair and accurate representation of the scene sought to be depicted addresses itself to the trial court’s discretion, which will not be controlled unless abused. Eiland v. State, 130 Ga. App. 428, 429 (1) (203 SE2d 619) (1973). See also as persuasive Nash v. State, 179 Ga. App. 702, 706 (8) (347 SE2d 651) (1986). No abuse appears.

3. Appellant further maintains that the trial court erred in denying his motion to suppress on the ground that the stop of his vehicle leading to the arrest and vehicle search was improper and violated his rights under the federal and state constitutions. He cites no specific provisions but relies entirely on Allen v. State, 140 Ga. App. 828 (232 SE2d 250) (1976). That case is bottomed on the Fourth Amendment, so we will not consider any state constitutional claim. Appellant contends that the officers had no reasonable articulable grounds for suspicion and so could not legally stop his vehicle.

The evidence at the motion to suppress hearing was that the arresting officers had knowledge of the armed robbery of the service station at the time they passed Keith on a street near the service station; the street was primarily a residential one with very little traffic on it at 2:13 a.m.; the car swerved slightly; after the officers began to follow it they then received a “lookout” with a description of the robbery suspect, which matched Keith; Keith would not pull over or stop in response to the police car’s blue lights.

Decided March 8, 1988

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Rose L. Wing, Assistant District Attorneys, for appellee.

“ ‘It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.’ [Cit.] It is also clear that what is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. [Cit.]” Allen v. State, 140 Ga. App. 828, 830, supra, applying Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

By the time the officers stopped Keith, they had reasonable articulable grounds for suspicion that he was the robber. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.” Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612) (1972). See State v. Adams, 186 Ga. App. 87 (366 SE2d 326) (1988).

4. The last question is whether the evidence was sufficient to support a guilty verdict for armed robbery. Appellant asserts that the victim was at no time able to identify the presence of any offensive weapon, replica, article, or device having the appearance of such weapon.

The victim testified that during the robbery the intruder nudged her on the arm and shoulder with something hard and sharp inside his glove which she would have said was a knife prior to the police recovering a pair of scissors from defendant’s car. She pleaded with the man not to hurt her. This along with the other evidence construed in a light favorable to the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), would have enabled any rational trier of fact to find defendant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hambrick v. State, 174 Ga. App. 444 (330 SE2d 383) (1985).

Judgment affirmed.

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


text:
    76364.
    BOOKER et al. v. AMDUR et al.
    (367 SE2d 94)
    Decided March 8, 1988.

      Russell D. Waldon, for appellants.

      Robert W. Beynart, John L. Latham, Edward C. Brewer III, William S. Goodman, Judy F. Aust, for appellees.
   Banke, Presiding Judge.

The defendants in this personal injury action filed this appeal from a judgment entered on a jury verdict in favor of the plaintiffs. The judgment was entered on June 19, 1987; and the notice of appeal was filed on July 20, 1987. During the intervening period, on July 14, 1987, the plaintiffs filed a motion for new trial, which they later dismissed on December 4,1987. The plaintiffs have moved to dismiss the present appeal on the ground that it was filed during the pendency of their motion for new trial. Held:

‘A notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.’ ” Dept. of Transp. v. Rudeseal, 148 Ga. App. 179, 180 (251 SE2d 11) (1978). This is true whether the motion for new trial was filed by the appellant or by another party. See Lamas Co. v. Baldwin, 118 Ga. App. 437 (164 SE2d 236) (1968); Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233 (1) (355 SE2d 747) (1987). In such cases, the withdrawal or dismissal of the motion for new trial by the party who filed it is considered a disposition of the motion pursuant to OCGA § 5-6-38 (a), so as to commence the running of the 30-day period for filing an appeal. See Golden v. Credico, Inc., 124 Ga. App. 700, 701 (185 SE2d 578) (1971). Since the defendants’ notice of appeal in this case was not filed within 30 days of the dismissal of the plaintiffs’ motion for new trial, it follows that the appeal must be dismissed pursuant to OCGA § 5-6-48 (b).

Appeal dismissed.

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


text:
    75765.
    MECALE v. THE STATE.
    (367 SE2d 52)
   Banke, Presiding Judge.

Mecale filed this appeal from the denial of his motion for new trial after being found guilty of trafficking in cocaine and obstructing an officer.

The appellant was a passenger in a rented automobile being driven by the lessee, Robert Hugh Beggs. As the two men were traveling north on Interstate 75, a Georgia state patrolman observed the vehicle “weaving” in and out of its lane of traffic. Suspecting that the driver might be intoxicated, the trooper directed him to pull over to the side of the road. Beggs exited the car and, at the trooper’s request, produced his driver’s license and a rental agreement. Observing no further indications that Beggs was under the influence of alcohol, the trooper advised him that he intended to issue him a warning ticket'for weaving. However, observing that Beggs appeared extremely nervous, he then asked him whether he was carrying any contraband or if he was “wanted” anywhere. Beggs replied “no” to both questions; but, admittedly acting on a hunch, the trooper nevertheless asked for permission to look inside his vehicle. Beggs agreed, whereupon the trooper prepared a written “consent to search” form, designating “VGCSA” as the justification for the search.

Beggs signed the form, and the trooper then asked him for the keys to the vehicle. Beggs responded by leaning inside the car and exchanging some words with the appellant, who was still seated in the front passenger seat. At this time the trooper observed the appellant remove the keys from the ignition and hand something to Beggs, who in turn gave the trooper a single key to the ignition. The trooper then asked for the trunk key, whereupon Beggs responded that he had not been given one at the rental agency.

At this time, the appellant was ordered to exit the car and to produce some identification. After searching the appellant’s pockets in an unsuccessful attempt to locate the trunk key, the trooper assured him that he intended to “find out what was in the trunk,” whereupon the appellant attempted unsuccessfully to flee. He was then arrested for obstructing an officer and was taken, along with Beggs and the vehicle, to the police station, where the vehicle’s trunk was opened by a locksmith. The ensuing warrantless search of the trunk resulted in the seizure of a quantity of cocaine from inside a canvas bag.

Both Beggs and the appellant moved to suppress the cocaine. Beggs’ motion was granted, but the trial court denied the appellant’s motion based on a determination that he had no standing to challenge the search because he had no possessory or proprietary interest in the rental car. The appellant’s sole enumeration of error on appeal is directed to this ruling. Held:

A defendant may challenge the validity of a search and seizure and claim the benefits of the exclusionary rule only if his own Fourth Amendment rights have been violated. United States v. Salvucci, 448 U. S. 83, 85 (100 SC 2547, 65 LE2d 619) (1980). In Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978), the Supreme Court held that passengers occupying an automobile could not invoke the protections of the Fourth Amendment with respect to a search of the vehicle where they “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.” Id. 439 U. S. at 148. Accord McGhee v. State, 253 Ga. 278, 279 (319 SE2d 836) (1984).

Decided February 10, 1988

Rehearing denied March 9, 1988.

Thomas C. Garwood, for appellant.

Willis B. Sparks III, District Attorney, Phil Wiley, Kimberly S. Shumate, Wayne G. Tillis, Assistant District Attorneys, for appellee.

It is undisputed in the present case that the appellant, as a mere passenger, had no property or possessory interest in the rented automobile. He asserts, however, that his conduct nevertheless established that he entertained a legitimate expectation of privacy with respect to the trunk of the vehicle. We disagree and, based on the foregoing authorities, hold that the trial court correctly determined that the appellant lacked standing to object to the lawfulness of the search and seizure.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75169.
    TURNIPSEED v. THE STATE.
    (367 SE2d 259)
   Beasley, Judge.

Turnipseed appeals his sentence and conviction for felony involuntary manslaughter, OCGA § 16-5-3 (a), based on the underlying misdemeanor of reckless conduct, OCGA § 16-5-60, in this case in which a child was killed by three pit bull terriers owned and maintained by Turnipseed.

1. The first enumeration is that the trial court erred in denying the general demurrer challenging the indictment on the grounds that it failed to state an offense under Georgia law and failed to allege the commission of an unlawful act as required by OCGA § 16-5-3.

Appellant maintains that the offense of reckless conduct cannot be used as the underlying unlawful act for a conviction of felony involuntary manslaughter because it would render meaningless subsection (b), the misdemeanor grade of involuntary manslaughter involving the commission of a lawful act in an unlawful manner. He argues that any conviction under the misdemeanor portion of OCGA § 16-5-3 represents the commission of some act in a criminally negligent or criminally reckless manner; that reckless conduct is the sine qua non of misdemeanor involuntary manslaughter and therefore if engaging in reckless conduct is the only predicate required for a conviction under subsection (a), then every misdemeanor manslaughter offense also represents a felony involuntary manslaughter offense. He further argues that felony involuntary manslaughter requires that a defendant intentionally commit the underlying act, so that if recklessness is all that is charged, the element of criminal intent is eliminated. Finally, he urges that the indictment failed to identify what unlawful act was committed which led to the death, because merely charging that the death resulted from engaging in reckless conduct sets out a misdemeanor offense and no more.

The indictment tracks the language of OCGA §§ 16-5-60 and 16-5-3 (a) and therefore sufficiently states the offense with which defendant was charged. OCGA § 17-7-4; Moran v. State, 170 Ga. App. 837, 841 (2) (318 SE2d 716) (1984).

The indictment is not defective, as appellant urges, on the ground that felony involuntary manslaughter is predicated on the underlying offense of reckless conduct. Reckless conduct which includes the element of criminal intent is a misdemeanor and satisfies the requirement under OCGA § 16-5-3 (a) of “an unlawful act other than a felony.” Appellant fails to recognize the criminal intent aspect of the underlying offense, the unlawful act of “conscious disregard” delineated in the statute and described in the indictment. See Lewis v. State, 180 Ga. App. 369, 371 (3) (349 SE2d 257) (1986).

It likewise is not the law that if the only unlawful act charged is reckless conduct, the charge must be misdemeanor involuntary manslaughter. A charge of violation of OCGA § 16-5-3 (b) is not appropriate under such circumstances because criminal reckless conduct is not a lawful act within the context of OCGA § 16-5-3 (b). Saylors v. State, 251 Ga. 735, 737 (3) (309 SE2d 796) (1983); Crawford v. State, 245 Ga. 89, 91 (3) (263 SE2d 131) (1980).

The indictment was not demurrable on the grounds urged.

2. Appellant contends that the evidence was insufficient to sustain a conviction for felony involuntary manslaughter, specifically, that an unlawful act of criminal reckless conduct was not proved. The reckless conduct charged was, in short, “keeping” the terriers and “[omitting] to adequately secure” them.

He maintains that at the time of the victim’s death there was no law in Georgia forbidding the ownership of pitbull terriers or which expressly outlawed any specific act committed by him and therefore, that none of his actions constituted criminal reckless conduct. He points to the civil liability of pet owners in the law of negligence as persuasive in determining that his conduct was not criminal, to wit, principles of foreseeability, “one bite,” and vicarious liability.

To begin with it is error to inject rules governing civil liability into a situation of assessing criminal responsibility. See Edmonds v. State, 98 Ga. App. 827 (1) (107 SE2d 286) (1959); Cain v. State, 55 Ga. App. 376, 379 (1) (190 SE 371) (1937). Rather, the State’s obligation was to show that Turnipseed consciously disregarded a substantial and unjustifiable risk that his conduct would cause harm or endanger the safety of another person and that such disregard constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation. OCGA § 16-5-60; Horowitz v. State, 243 Ga. 441 (254 SE2d 828) (1979).

While it is true that at the time of the attack on the child, there was no state law specifically forbidding the ownership of pitbull terriers or specifically outlawing any one of Turnipseed’s isolated acts regarding the dogs, this did not preclude the jury from finding that the acts of keeping the dogs in the circumstances evidenced, and leaving them unguarded, all with the knowledge of past incidents, built up to reckless conduct on this occasion. Such is a crime. OCGA § 16-5-60.

The evidence, construed so as to uphold the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), showed that for a number of years prior to the fatal attack on Billy Gordon, Turnipseed owned and raised pitbull terriers in his home in a residential area where there were many children. Turnipseed had heard about how the breed “hurt kids and stuff, . . . heard about how pits jump on kids and bite them on the heads and stuff”; he knew that others had complained about the breed. Turnipseed liked the dogs, which were his favorite breed, because of the way they acted by running around his home, bumping into walls, lifting a two-by-four piece of wood and protecting the house.

He felt the dogs did not have to be trained to be protective, that they were born that way and that “[a] 11 you got to do is keep them off from around people and they won’t like nobody but the people who feed them.” Turnipseed stated that he tried to keep the dogs away from other people. He strapped weights to the dogs and ran them to build up their chests and their legs. He had been told by his neighbors, policemen, and animal control officers that his dogs were a problem. Turnipseed knew that his dogs had been getting out of his house and outside of his yard and how they were accomplishing this. The animals were able to escape the house on numerous instances because of missing or broken doors, windows, etc. Turnipseed thought his dogs were capable of jumping a seven-foot fence. He never put a lock on the fence gate. The dogs fought with each other and Turnipseed knew that they had chased people in the neighborhood including children and had tried to kill another animal. He also knew that two of his dogs had been shot and killed by police officers because the dogs had attacked the officers. Turnipseed himself shot one of the dogs for trying to bite.

On November, 21, 1986, four-year-old Billy Gordon, Jr. and his eleven-year-old cousin were walking from the cousin’s house to the home of Turnipseed’s next-door neighbor, Ms. Bryant, who sold candy to the local children. They did not go on Turnipseed’s property but walked through a path in the woman’s backyard. The cousin noticed Turnipseed’s dogs scratching at his door and then that they were coming out of Turnipseed’s house through the open gate in Turnipseed’s yard. The children tried to get to Bryant’s house, but they couldn’t make it so they laid down and the cousin told Billy to be still, “trying to play dead.” The three dogs, named Caesar, Rock Jaw, and Raw Dog, dragged the little boy away from his cousin and then chased the cousin, who managed to run to Bryant’s house. Bryant heard screaming, opened her door, the cousin fell in, and Bryant saw that the child was being chased by one of the dogs which had blood dripping on its face. Bryant kicked the dog back out of her door and from her window she could see the dogs pulling at Billy, who was not moving. The boy’s death resulted from severe injuries inflicted by the dogs.

The evidence was sufficient to enable any rational trier of fact to find Turnipseed guilty of felony involuntary manslaughter, OCGA § 16-5-3 (a), based on reckless conduct, OCGA § 16-5-60, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Miller v. State, 179 Ga. App. 217 (345 SE2d 909) (1986), which held that a defendant’s failure to keep his dogs under control and allowing them to roam freely after he knew the dogs had killed other animals constituted negligence and an “ ‘omission or neglect’ ” in violation of OCGA § 16-12-4 (a). Id. at 218.

3. The trial court did not err in refusing to give the jury defendant’s request to charge that: “In order to find the Defendant guilty of reckless conduct in connection with his ownership of the dogs, I instruct you that you must find beyond a reasonable doubt that the Defendant knew of the dogs’ propensity to do the particular act which caused the death in this case, that is, attack, bite and injure a small child. If the evidence does not establish beyond a reasonable doubt that the Defendant knew of the dogs’ propensity to attack, bite and injure a child, you must return a verdict of not guilty.” He argues that the “foreseeability requirement” was his sole defense and that the court’s instructions did not adequately define the offense of reckless conduct.

Defendant’s request to charge was not a correct statement of the criminal law applicable in the case and therefore, the trial court properly refused to charge it. See Division 2, supra; Garmon v. State, 219 Ga. 575 (134 SE2d 796) (1964); see also McRae v. State, 145 Ga. App. 122 (243 SE2d 110) (1978).

The trial court charged the code sections on reckless conduct, OCGA § 16-5-60, which defines the same, and on felony involuntary manslaughter, OCGA § 16-5-3 (a). Defendant did not ask for any further elaboration of the elements of the charged offenses save for his unsuccessful attempt to persuade the court to give the aforementioned inappropriate civil charge. Under these circumstances the court’s charge on the elements of the offenses was adequate. See Lewis v. State, supra at 371 (3).

Decided March 9, 1988.

Donald F. Samuel, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Assistant District Attorney, for appellee.

4. Lastly, appellant enumerates as error the admission of five preautopsy photographs of the victim lying on the autopsy table, in that they were irrelevant and prejudicial.

The photographs were not devoid of probative value because they showed the nature of the attack on the victim. From observation of the wounds of the victim, the jury could draw conclusions about the vicious propensities of the animals and weigh this in light of other evidence about the dogs to determine whether or not Turnipseed’s conduct regarding them was criminally reckless. Lewis v. State, supra at 370 (2); see also Hance v. State, 254 Ga. 575, 578 (4) (332 SE2d 287) (1985); Lewis v. State, 253 Ga. 339, 340 (1) (320 SE2d 161) (1984).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    75269.
    HOHNERLEIN v. THOMAS.
    (367 SE2d 95)
   McMurray, Presiding Judge.

Plaintiff is the mother-in-law of a tenant in a rental home of which defendant, as executor, is landlord. Plaintiffs complaint alleges that while she was leaving the dwelling after a visit, the heel of her shoe caught between the boards of the front porch causing a fall which injured her. Defendant’s motion for summary judgment was denied and we granted defendant’s application for interlocutory appeal. The sole enumeration of error submits that the state court erred in denying defendant’s motion for summary judgment. Held:

Generally, “ ‘[m] embers of a tenant’s family, his guests, servants, employees, or others present by his express or implied invitation, stand in his shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair. (Cits)’ Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462, 464 (2) (118 SE 694) (1923). ‘A guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises.’ Rothberg v. Bradley, 85 Ga. App. 477 (2) (69 SE2d 293) (1952).” Paul v. Sharpe, 181 Ga. App. 443, 444 (1) (352 SE2d 626). “ ‘It has often been held that the true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it. (Cits.)’ Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984).” Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13).

Decided March 9, 1988.

R. Kran Riddle, for appellant.

Roy L. Allen, Jr., Kevin E. Perry, for appellee.

In the case sub judice, the record shows that plaintiffs knowledge of the defective condition of the porch of the rental house was at least equal to that of defendant. There is no issue presented as to lack of visibility of the peril or lack of appreciation of the danger. Indeed, plaintiffs deposition testimony shows her appreciation of the specific hazard which befell her, testifying that immediately before the fall she looked down to see that she was standing on a solid board as she did not want to step in any of the “ragged edges” on the front porch. Plaintiffs fall occurred when she turned to leave. Although plaintiff did not look where she was walking as she turned to leave, she insists that her shoe caught in one of the “ragged edges,” causing her fall. See Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, supra; Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28).

Regardless of the uncontroverted evidence that plaintiff acted with full knowledge of the danger, the state court concluded that in view of our decision in Grier v. Jeffco Mgt. Co., 176 Ga. App. 158, 159 (335 SE2d 408) (1985), jury issues remained. However, subsequent to the date of the state court’s order, our decision in Taylor v. McDonald, 183 Ga. App. 320, 321 (359 SE2d 1) (1987), clarified that the exception stated in Grier is applicable only to tenants of a dwelling. The state court erred in denying defendant’s motion for summary judgment.

Judgment reversed.

Sognier and Beasley, JJ., concur.


text:
    75614.
    JACKSON et al. v. BRADDY et al.
    (367 SE2d 96)
   McMurray, Presiding Judge.

Plaintiffs brought this action against Robert Lee Battle, Aubrey Braddy, d/b/a Braddy Trucking Company, Inc., Braddy Trucking Company, Inc., and Ranger Insurance Company. The complaint sought the recovery of damages for the wrongful death of plaintiff Horace Jackson’s wife and for personal injuries sustained by his two minor children (the other plaintiffs) in an automobile collision. It was alleged that on August 4, 1983, plaintiff Horace Jackson’s wife and his two minor children were traveling in an automobile in Jeff Davis County; that the automobile collided with a truck which was driven negligently by Battle; that the truck was owned by Braddy and Braddy Trucking Company, Inc. (hereinafter referred to jointly as “Braddy”) and was insured by defendant Ranger Insurance Company (hereinafter “Ranger”); that at the time of the collision Battle was a servant of Braddy and that he was acting within the scope of his employment; and that Battle’s negligence was the proximate cause of the death of plaintiff Horace Jackson’s wife and the injuries sustained by plaintiff’s children. The liability of Battle was alleged to have stemmed from his negligence. Braddy’s liability was predicated upon the doctrine of respondeat superior. Ranger was alleged to be liable because it issued a policy of insurance to Braddy. Defendants answered the complaint and denied any liability.

Following discovery, defendants Braddy and Ranger moved for summary judgment. The evidence adduced upon the motion showed the following: Braddy was in the oil and the trucking business. In the early 1970’s, Braddy incorporated his trucking business as Braddy Trucking Company, Inc. The truck which was involved in the collision, a 1978 White Tractor, was titled in Braddy’s individual name and he used it in the trucking business. Ranger issued a liability insurance policy covering the truck to Braddy on March 13, 1981. The policy was cancelled on April 30, 1981, less than two months after it was issued. According to the records of the Public Service Commission, Ranger also issued a policy to Braddy (on May 1, 1979) which was in effect on the day of the collision.

Braddy and his corporation ceased doing business in April 1982. Battle worked for Braddy “off and on” over the years but his employment came to an end before Braddy’s trucking business closed its doors. Thus, he was not employed by Braddy at the time of the collision in August 1983.

On February 1, 1983, Braddy sold the White Tractor truck to Battle for approximately $20,000. To document the transaction, Braddy simply executed a bill of sale. Pursuant to the agreement between Braddy and Battle, no downpayment was made; Battle was to pay Braddy $250 per week so long as the truck was “running.” In this regard, Battle paid Braddy the stipulated sum when he was able to lease the truck to other concerns. If Battle could not lease the truck, he did not make the weekly payment. All told, Battle paid Braddy between $1,500 and $2,000 toward the purchase price of the truck.

Braddy retained the truck’s certificate of title in order “to protect [his] interest.” He also maintained an insurance policy to cover the truck for property damage. That policy was issued by Carolina Casualty Insurance Company and it was in effect on the day of the collision.

Shortly after Battle purchased the truck, it became necessary to renew the tag. Battle paid for the tag himself, renewing it in his own name.

Battle was able to lease the truck at various times. When he did so, he leased it himself without any assistance from Braddy. The truck was not leased to anyone on the day in question.

Ordinarily, Battle made and paid for repairs to the truck himself. Following the collision, however, Battle could not afford to have the truck repaired. He told Braddy that he no longer wanted the truck and that Braddy could have it back. Braddy had the truck repaired and he sold it to a third party. Battle received none of the proceeds.

Based on the foregoing evidence, the trial court granted Braddy’s and Ranger’s summary judgment motions. Held:

“[T]he relationship of master and servant must exist between the owner and the operator of the [vehicle] in order to render the owner liable for the negligent conduct of such operator. [Cits.]” Graham v. Cleveland, 58 Ga. App. 810, 811 (200 SE 184). Accord Redd v. Brisbon, 113 Ga. App. 23, 26 (147 SE2d 15). Thus, the question for decision in this case is whether the relationship of master and servant existed between Braddy and Battle at the time of the collision. Palmer, Phinizy & Connell v. Heinzerling, 34 Ga. App. 544 (1) (130 SE 537).

Where the existence of an agency relationship is denied by the owner and the driver of a vehicle, the denial of the relationship is evidence of a fact which cannot be overcome by circumstantial evidence unless such circumstantial evidence is inconsistent with the denial. Stewart v. Ga. Mut. Ins. Co., 159 Ga. App. 91, 93 (282 SE2d 728); Allgood v. Dalton Brick & Tile Corp., 81 Ga. App. 189, 190 (4) (58 SE2d 522). In view of the denial of an agency relationship by Braddy and Battle, it was incumbent upon plaintiffs to introduce evidence of agency which contradicted the denial of Braddy and Battle. Stewart v. Ga. Mut. Ins. Co., 159 Ga. App. 91, 93, supra. This plaintiffs failed to do. The record is devoid of any direct evidence showing that Battle was the servant of Braddy at the time of the collision and the circumstantial evidence is consistent with the absence of an agency relationship.

Decided March 9, 1988.

William V. Evans, for appellants.

Howard C. Kaufold, Jr., for appellees.

Plaintiffs argue that fact questions remain with regard to the ownership of the truck. In support of their argument, plaintiffs point out that Braddy retained the certificate of title and maintained property insurance on the truck and that Battle only made payments to Braddy when the truck was leased. The circumstantial evidence upon which they rely is consistent with the direct, uncontradicted and unimpeached evidence that Braddy sold the truck to Battle and kept a security interest in it. See generally American Mut. Fire Ins. Co. v. Cotton States Mut. Ins. Co., 149 Ga. App. 280, 281 (2) (253 SE2d 825). It does not, therefore, raise a factual question with regard to the ownership of the truck. As it is said: “A fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist.” Neill v. Hill, 32 Ga. App. 381, 382 (2 b) (123 SE 30).

Assuming, arguendo, that the ownership question could not be resolved as a matter of law, we would nevertheless affirm the judgment of the trial court. The fact that Braddy may have owned the truck would raise a presumption that Battle was Braddy’s servant. Red Top Cab Co. v. Hyder, 130 Ga. App. 870 (204 SE2d 814). That presumption would disappear, however, in the face of the uncontradicted evidence that there was no agency relationship between Battle and Braddy. Red Top Cab Co. v. Hyder, 130 Ga. App. 870, supra; Blount v. Sutton, 114 Ga. App. 767, 769 (152 SE2d 777).

The evidence demonstrates without contradiction that at the time of the collision Battle was not the servant of Braddy. It follows that Braddy cannot be deemed liable under the doctrine of respondeat superior and that Ranger cannot be held liable as the insurer of Braddy.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Benham, Judge.

text:
    75663.
    TURNER BROADCASTING SYSTEM, INC. v. EUROPE CRAFT IMPORTS, INC.
    (367 SE2d 99)
   Benham, Judge.

Appellant Turner Broadcasting System, Inc. (TBS) sued appellee Europe Craft Imports, Inc. (ECI) on an account for television advertising TBS claimed it broadcast on ECI’s behalf in the fall of 1984, after reaching an agreement to do so with Warren, Muller, Dolobowsky, Inc. (WMD), ECI’s advertising agency. After TBS presented its evidence at trial, ÉCI moved for a directed verdict on the ground that TBS did not prove that it ever had an account with ECI, and that under OCGA § 10-6-55, TBS could not seek payment of the debt from ECI because TBS extended the credit to the agent, WMD, and not the principal, ECI. The trial court granted WMD’s motion, and TBS filed this appeal.

1. In its first three enumerations of error, TBS takes the position that the grant of WMD’s motion was error. We agree. While it is true that “[i]f the credit shall be given to the agent by the choice of the seller, he may not afterward demand payment of the principal” (OCGA § 10-6-55), it was not shown that, as a matter of law, TBS gave credit to the agent and not the principal. A TBS account representative testified at trial that ECI had advertised with TBS the year before the advertising in question was placed, and that because of that prior relationship she contacted WMD, the advertising agency that ECI used, and sought ECI’s business again. TBS offered WMD several television commercials during National Basketball Association and Southeastern Conference Football games in the fall of 1984, for the promotion of ECI’s “Members Only” clothing line. The TBS account representative and WMD’s representative discussed the schedule TBS proposed and changed it in accordance with the wishes of ECI’s advertising manager, as communicated through WMD. The account representative further testified that when the WMD representative placed the advertising order, ECI was to be responsible for payment; that the advertisements were shown as agreed, and that the WMD representative said that both he and the client, ECI, were satisfied with the advertisements. Exhibits were introduced that showed TBS sent confirmation of the order to WMD showing ECI as the advertiser and WMD as the agent.

TBS’ credit manager testified that “Members Only” advertisements for ECI had been run on TBS before the advertising in question; that on the other occasions the ads were placed through an agency; that sometimes TBS received payment from the agency and in some cases it was received from ECI directly; and that “Members Only” ads were placed after the schedule in question and that ECI paid for them directly. The credit manager also testified that in January 1985 he contacted WMD to ask when payment would be received for the ads in question, and was told that WMD was not in business and that he needed to contact ECI directly for payment. When that contact was made, the manager was told that ECI was familiar with the problem and to send copies of the bills and they would be paid. The invoices were sent but were not paid. The manager testified on cross-examination that TBS never took any credit information or a credit application from WMD or ECI.

Appellant called the controller of ECI to testify, and he stated that before November 1, 1984, ECI used WMD as its advertising agency; that when ECI wanted to advertise it called WMD to place the ads for it; and that ECI had put money into an escrow account for the purpose of paying all of the media stations for the advertising that WMD ordered for ECI’s fall advertising campaign for its “Members Only” line.

“If there is any evidence tending to establish . . . agency, the questions should be submitted to a jury.” Warnock v. Elliott, 96 Ga. App. 778, 789 (101 SE2d 591) (1957). “The intention of the parties, as to who is to be bound where the principal is disclosed, is usually a question of fact for a jury.” Kingsberry Homes v. Findley, 242 Ga. 362, 365 (249 SE2d 51) (1978). The evidence produced at trial as outlined above was sufficient to show that ECI had had an account with TBS in the past with arrangements being made through its agent, WMD. On some occasions payment was made through WMD and sometimes it was made directly by ECI. The evidence also supported the theory that ECI was the disclosed principal and WMD its agent, and that TBS did not intend to give credit to the agent, but to the principal. The evidence was sufficient for a jury to find that to have been the situation, and, if it did, ECI would be liable for the costs incurred by TBS for the ads. See Southeastern Foam Prods, v. Hilton Hotels Corp., 149 Ga. App. 372 (254 SE2d 494) (1979). It is clear that the evidence presented in this case did not demand a verdict for appellee ECI. The trial court erroneously deprived TBS of having a jury resolve whether ECI had an account with TBS, either directly or through the agency relationship with WMD. Therefore, we reverse the judgment. OCGA § 9-11-50; Deroller v. Powell, 144 Ga. App. 585 (2) (241 SE2d 469) (1978).

2. Appellant attempted to have the TBS account representative testify that the standard practice in the media advertising industry was that the responsibility for debts on advertising ordered by an agency ultimately lay with the client that hired the ad agency. The trial court refused to allow the jury to hear the testimony, and appellant cites the refusal as error. While as a general rule “[ejvidence of known and established usage shall be admissible to aid in the construction of contracts as well as to annex incidents” (OCGA § 24-6-5), “it cannot destroy, contradict, or modify what is otherwise manifest. Where the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing.” Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 94 (167 SE 79) (1932). The evidence appellant sought to introduce, that as an industry practice the advertiser was ultimately responsible for paying for the ads, contradicted the documents that appellant had admitted into evidence and upon which it relied, i.e., the confirmation sent to WMD that stated “agency and advertiser acknowledge and assume full responsibility jointly and severally for payment of all advertising broadcast services and related expenses incurred, ordered and provided on behalf of the advertiser by Turner.” Therefore, the trial court did not err in rejecting the parol evidence.

3. The trial court refused to admit into evidence a TBS exhibit which consisted of a letter from appellee’s attorney to TBS’ credit manager to the effect that if TBS wanted the invoices to be paid it needed to execute a form releasing ECI from further obligation to pay TBS for those invoices, and of the unexecuted form. The court’s reason for excluding the exhibit was that it was not executed and its purpose was for settlement of the dispute. Appellant contends that the exclusion was error in that the letter was an acknowledgment of the debt which constituted an admission. We agree. OCGA § 24-3-37 states “admissions or propositions made with a view to a compromise are not proper evidence.” Our review of the record indicated that ECI’s admission of liability was made as part of its offer to settle upon certain terms a claim that was unquestioned at the time it was made, and therefore it is admissible. See Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497 (1) (300 SE2d 328) (1983). There was nothing in the record to indicate that there had been any effort to compromise: ECI apparently was prepared to pay the full amount of the invoices presented by TBS. The admission of liability contained in the response to appellant’s demand under the terms of the agreement between the parties was admissible. Campbell v. Mut. Svc. Corp., 152 Ga. App. 493 (2) (263 SE2d 202) (1979); Williams v. Smith, 71 Ga. App. 632 (9) (31 SE2d 873) (1944).

4. The trial court also excluded another TBS exhibit, an agreement between ECI and WMD dated November 1, 1984, purporting to settle certain disputes between the latter two entities about the ECI 1984 fall television advertising campaign. The agreement provided, inter alia, that ECI was placing in escrow over one million dollars for payment to various media that provided advertising for ECI; that the parties agreed that “WMD . . . [has] performed and [is] performing certain advertising services for ECI”; that “such costs, fees and commissions [related to the ECI 1984 fall television spot campaign] when finalized and due shall be the obligation of ECI and shall be paid by ECI and not WMD”; and that ECI was primarily obligated to pay for all television and radio broadcast invoices related to the ECI fall ad campaign. TBS argues that even though it was an agreement between ECI and WMD and not between ECI and TBS, the document should have been admitted into evidence, because it tended to show both the agency relationship between ECI and WMD and ECI’s ratification of WMD’s actions in arranging for the advertisements with TBS. We agree with appellant’s assertions. The evidence was relevant to the issue before the jury and logically tended to prove appellant’s theory of the case. As such, it should have been admitted for the jury’s consideration. “The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” Rosenthal v. Hudson, 183 Ga. App. 712 (2) (360 SE2d 15) (1987). The trial court erred in refusing to admit the document.

Decided March 9, 1988.

Lawrence S. Burnat, Lynn C. Stewart, Alexander J. Simmons, Jr., for appellant.

Mark L. Golder, for appellee.

Judgment reversed.

Banke, P. J., and Corley, J., concur.


text:
    75719.
    SPAFFORD v. MASERONI.
    (367 SE2d 102)
   McMurray, Presiding Judge.

On June 4, 1984, plaintiff Maseroni filed her complaint in three counts against defendant Spafford, her former husband. Count 1 sought a judgment for an arrearage of child support for the years 1979 through 1983 and for the first five months of 1984. Counts 2 and 3 sought to domesticate judgments against defendant in the Superior Court of New Jersey Chancery Division, Morris County, dated February 28,1978, and June 11,1979. However, the dates of the New Jersey judgments stated in plaintiffs complaint are not consistent with the dates shown by abstracts of judgment attached and incorporated by reference in the complaint. From the abstracts it appears the judgments were actually dated January 12, 1978, and March 28, 1979.

On March 31, 1986, plaintiff filed her motion for partial summary judgment as to Counts 2 and 3. Thereafter, on July 11, 1986, defendant amended his answer to add a defense that “Plaintiffs Complaint is barred by the Statute of Limitations under foreign judgments, OCGA § 9-3-20” and moved for “partial judgment on the pleadings.”

The superior court granted plaintiffs motion for partial summary judgment and denied defendant’s motion for partial judgment on the pleadings. In its order the superior court concluded that the failure to plead the statute of limitation at the first opportunity was not cured by the amendment to defendant’s answer. Defendant appeals from the grant of partial summary judgment in plaintiffs favor and the denial of his motion for partial judgment on the pleadings. Held:

Decided March 9, 1988.

John V. Skinner, Jr., for appellant.

Anthony Kirkland, for appellee.

OCGA § 9-11-8 (c) provides that: “In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . However, “a properly amended answer is a ‘pleading to a preceding pleading’ within the meaning of [OCGA § 9-11-8].” Security Ins. Co. of Hartford v. Gill, 141 Ga. App. 324, 325 (233 SE2d 278). Thus, while the statute of limitation defense is waivable, it may be raised by amendment. Gaul v. Kennedy, 246 Ga. 290 (1), 291 (271 SE2d 196). As there was no pre-trial order entered in the case sub judice (a proposed pre-trial order signed by the parties’ counsel but not by the superior court does appear in the record) defendant was authorized to amend his answer during the pendency of plaintiff’s motion for partial summary judgment and the superior court was bound to consider defendant’s amended answer in ruling on plaintiff’s motion. Security Ins. Co. of Hartford v. Gill, 141 Ga. App. 324, supra; Haskins v. Jones, 142 Ga. App. 153 (235 SE2d 630); Alexander v. Boston &c. Ins. Co., 127 Ga. App. 783 (195 SE2d 277).

Thus, the superior court erred in ruling that defendant could not raise the statute of limitation by amendment of his answer under the circumstances of the case sub judice. As the statute of limitation (5 years after such judgments have been obtained) defense raised by defendant’s amended answer raises at least some genuine issues of material fact as to whether plaintiff is entitled to judgment on Counts 2 and 3, the superior court also erred in granting plaintiff’s motion for partial summary judgment. As the pleadings affirmatively show that no claim in fact exists, the denial of defendant’s motion for partial judgment on the pleadings as to Counts 2 and 3 was also error. Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 746 (1) (337 SE2d 770).

Judgment reversed.

Sognier and Beasley, JJ., concur in the judgment only.


author: Sognier, Judge. Carley, Judge,

text:
    75806.
    In the Interest of G. C. S.
    (367 SE2d 103)
   Sognier, Judge.

On July 22, 1987, appellant was adjudicated a delinquent in the Juvenile Court of Bibb County for trafficking in cocaine, and he filed a notice of appeal from the adjudication order. The adjudication order transferred the case to the Juvenile Court of Gwinnett County, as Gwinnett County was appellant’s place of residence. Prior to disposition appellant’s parents sold their home in Gwinnett County and moved to Whitfield County; therefore, the case was transferred to the Juvenile Court of Whitfield County for disposition. No disposition of the case had been made at the time appellant filed his notice of appeal, and there is nothing in the record to indicate that the Juvenile Court of Whitfield County has held a dispositional hearing or entered a dispositional order.

OCGA § 15-11-64 provides, in pertinent part: “In all cases of final judgments of a juvenile court judge, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. ...” This court has held that an adjudication order alone is not a final, appealable judgment under the provisions of the Juvenile Court Code, and absent a certificate for immediate review, the appeal must be dismissed. M. K. H. v. State of Ga., 132 Ga. App. 143, 144 (207 SE2d 645) (1974). See also Sanchez v. Walker County DFCS, 135 Ga. App. 891, 893 (4) (219 SE2d 583) (1975). Since there is no certificate for immediate review in this case, the appeal must be dismissed.

Appeal dismissed.

Deen, P. J., and Carley, J., concur specially.

Carley, Judge,

concurring specially.

I concur in the majority’s determination that this Court is without jurisdiction over this direct appeal and that the case must be dismissed. I would like to add that D. C. E. v. State of Ga., 130 Ga. App. 724 (204 SE2d 481) (1974) is on all fours with the instant case in that in D. C. E., as here, the court entering the order adjudicating the juvenile delinquent transferred the case to another county for a dispositional hearing. Compare G. W. v. State of Ga., 233 Ga. 274 (210 SE2d 805) (1974) involving an adjudication of juveniles who were non-residents of the State of Georgia.

The majority concludes its opinion by stating: “Since there is no certificate for immediate review in this case, the appeal must be dismissed.” While cases cited in the majority opinion and D. C. E., cited in this special concurrence, do refer only to the necessity of a certificate of immediate review, the applicable Code section, OCGA § 5-6-34 (b) was amended in 1975 to require not only a certificate for immediate review entered by the trial court, but also the grant of an application for interlocutory appeal by the appellate court. Ga. Laws 1975, p. 757. Therefore, since July 1, 1975, the mere timely entry of a certificate of immediate review by the trial judge, without the subsequent grant of an application for interlocutory appeal, has not been sufficient to confer jurisdiction on the appellate court. Accordingly, since the order of adjudication in this case was not final and there being neither a certificate of immediate review nor a subsequent grant of an application for interlocutory appeal, this Court is without jurisdiction over this case.

Decided March 9, 1988.

Charles M. Taylor II, for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Vernon R. Beinke, Assistant District Attorneys, for appellee.

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


text:
    75119.
    STACEY v. CALDWELL.
    (367 SE2d 73)
   Sognier, Judge.

Carolyn Caldwell brought suit against Westin Stacey seeking damages for injuries she incurred when the automobile she was driving was struck from behind by Stacey’s vehicle. The jury returned a verdict in favor of Caldwell on the issue of liability and awarded her compensatory damages, but found in favor of Stacey during the bifurcated trial on the issue of punitive damages. The trial court denied Stacey’s motion for a new trial and this appeal ensued.

1. Appellant contends the trial court erred by admitting testimony that on the day of the accident, appellant was arrested for driving under the influence of alcohol and that appellant refused to be tested for the alcohol content of his blood. As to evidence regarding appellant’s arrest, the record reveals that while appellant moved the court to limit this evidence, no ruling was ever made on this motion and no objection was made by appellant to the evidence admitted during trial. Thus, this argument presents nothing to review. Morris v. Southern Bell &c. Co., 180 Ga. App. 145 (1), (2) (348 SE2d 573) (1986).

As to evidence regarding appellant’s refusal to submit to blood-alcohol testing, we agree with appellant that his motion to limit this evidence and the trial court’s ruling thereon were sufficient to preserve appellant’s objection to the admission of this evidence. Thus, we turn to the merits of appellant’s argument.

Appellant asserts that evidence of refusal to submit to blood-alcohol testing is inadmissible in civil litigation because the General Assembly, by enacting OCGA § 40-6-392 (c) to provide: “[i]n any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood ... at the time of his arrest shall be admissible in evidence against him,” demands the interpretation that such evidence is inadmissible in civil trials. Appellant argues his interpretation is further supported by the language in OCGA § 40-6-392 (a) and (b) in which the General Assembly specifically authorized the admission in both criminal and civil proceedings of evidence of blood-alcohol testing, the results of such testing and the presumptions to be drawn from those results. Appellant argues that the specific inclusion of reference to civil proceedings in subsections (a) and (b) of the statute require we interpret subsection (c), in which no reference is made to civil proceedings, as providing that evidence of refusal to submit to testing is inadmissible in civil proceedings. We do not agree.

As noted in Wessels v. State, 169 Ga. App. 246, 247-248 (2) (312 SE2d 361) (1983), when the Uniform Traffic Act was adopted by the General Assembly in 1953, the statute addressing blood-alcohol testing, Code Ann. § 68-1625 (b), provided that in any criminal prosecution for driving while under the influence of intoxicating liquor, the failure of the arrested person to consent to a test establishing blood-alcohol was inadmissible in evidence in the trial of such person. Ga. L. 1953, Nov.-Dec. Sess., p. 556. The rationale for the inadmissibility of such evidence was based on constitutional concerns regarding a criminal defendant’s privilege against self-incrimination, see Johnson v. State, 125 Ga. App. 607 (2) (188 SE2d 416) (1972), concerns which would not generally be applicable in civil proceedings. A subsequent restructuring of the Uniform Traffic Act failed to provide for or reference the earlier provision, see Wessels, supra at 248, and it was not until 1983 that the General Assembly explicitly authorized the admissibility of evidence of refusal to submit to testing in criminal proceedings in OCGA § 40-6-392 (c). Ga. L. 1983, p. 1000, § 14 (c). (We note that in 1983 the United States Supreme Court discounted the self-incrimination arguments against admitting such evidence. South Dakota v. Neville, 459 U. S. 553 (103 SC 916, 74 LE2d 748).) Thus, the history of this statute would seem to indicate that the Legislature’s intent in enacting OCGA § 40-6-392 (c) was to rectify an omission in the law by explicitly authorizing the admissibility in criminal trials of the evidence regarding the refusal to submit to blood-alcohol testing.

Although the General Assembly is presumed to know the existing case law on a subject when it enacts a statute, see Hadley v. Bd. of Trustees &c., 171 Ga. App. 614, 617 (320 SE2d 620) (1984), research has failed to reveal any appellate court decisions addressing the status in civil cases of evidence regarding refusal to submit to blood-alcohol testing. The only case law thus affected by the 1983 statute are those opinions excluding such evidence in criminal cases, which must now be deemed overruled to whatever extent Wessels, supra, has not done so already. By enacting OCGA § 40-6-392, the General Assembly has also explicitly endorsed the case law stating that evidence of blood-alcohol testing and the result of such testing is admissible in civil proceedings. This result had been reached in earlier case law under the rationale that “[w]e are cited to no rule of law which would make such tests, authorized in criminal cases under Code Ann. § 68-1625, inadmissible in civil cases.” Russell v. Pitts, 105 Ga. App. 147, 150 (1) (123 SE2d 708) (1961).

Likewise, if evidence of refusal to submit to blood-alcohol testing is admissible in criminal cases under OCGA § 40-6-392 (c), we see no reason why it should not also be admissible in civil cases, especially since had the blood-alcohol test been taken, the testing as well as the results of that testing would be admissible regardless whether or not the tested person was arrested, charged or convicted of driving under the influence of alcohol. To adopt appellant’s interpretation of OCGA § 40-6-392 (c) would lead to an absurd and anomalous result. “ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cit.] ‘The construction must square with common sense and sound reasoning.’ [Cit.]” Polston v. Levine, 171 Ga. App. 893, 894 (1) (321 SE2d 350) (1984). Thus, we declined to adopt appellant’s interpretation of OCGA § 40-6-392 (c) and find no reversible error in the admission of this evidence.

2. Appellant next asserts the trial court erred by admitting into evidence and thereafter allowing to go out with the jury Plaintiff’s Exhibit #9, a computer report of appellee’s electromyographic (EMG) study. Dr. Leslie Kelman, a neurologist, testified as to his qualifications, the manner in which EMGs are performed, the reliability of EMGs and their use as objective locators of nerve damage in patients. Kelman then identified the exhibit as the computer report generated at the time he performed the EMG on appellee and testified that the report was maintained in his records. Medical records containing diagnostic opinions and conclusions “ ‘cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.’ [Cits.]” (Emphasis supplied.) Dennis v. Adcock, 138 Ga. App. 425, 428 (2) (226 SE2d 292) (1976). We find no error in the trial court’s admission of the computer report on the basis of this testimony. See also Reisman v. Martori, Meyer, Hendricks & Victor, 155 Ga. App. 551, 553-554 (3) (271 SE2d 685) (1980).

Nor do we find any reversible error was committed by the trial court by allowing the computer report to go out with the jury. “ ‘ “The jury should not be permitted to take with them for consideration in the jury room, depositions, dying declarations, confessions or written statements of the defendant, or other instruments of evidence depending for their value on the credibility of the maker.” . . . Such written testimony may have an unfair advantage over oral testimony by speaking to the jury more than once.’ [Cits.]” Miller Distrib. Co. v. Rollins, 163 Ga. App. 635, 636 (295 SE2d 187) (1982). However, the computer report of appellee’s EMG was not being used in lieu of testimony, see Shedden v. Stiles, 121 Ga. 637, 639-640 (4) (49 SE 719) (1904), nor was it made with the calculation to influence the fact finder. See Vinyard v. State, 177 Ga. App. 188, 191 (338 SE2d 766) (1985). Rather, the computer report consisted of a chart of the test results conducted on appellee, a summary of the muscles which tested as abnormal, and a concluding sentence, entitled “Impression,” stating “Abnormal EMG demonstrating chronic lower motor neuron dysfunction in the left L5 distribution with some overlap in the SI distribution.” The computer report contained no information regarding appellee’s case history or anything intimating the cause of her abnormal EMG. Even though Kelman stated in his deposition that the report reflected his “interpretation and diagnosis” as to appellee’s condition, we find nothing in this report other than documentation of Kelman’s EMG testing and do not agree with appellant that the jury’s possession of this report during deliberations was reversible error.

3. We find no error in the trial court’s charge to the jury, pursuant to Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985), instructing the jury that the case would be bifurcated requiring them first to deliberate on the issues of appellant’s negligence and the actual damages flowing therefrom. The trial court then charged that “[depending on the outcome of your verdict on those issues, you may then be instructed by the court as to whether you may or may not consider the issue of punitive damages.” We are not persuaded by appellant’s arguments that the jury’s deliberations regarding liability were somehow tainted by this charge because the jury may not have “rigidly adhered” to the trial court’s instruction. See Gen. Warranty Corp. &c. v. Cameron-Hogan, 182 Ga. App. 434, 438 (7) (356 SE2d 83) (1987).

4. Appellant asserts in his final enumeration that he was not allowed a thorough and sifting cross-examination of Officer B. P. Henry in that the trial court restricted his counsel’s questions regarding the citation issued by Henry, the accident report Henry filled out and Henry’s affidavit. In regard to the citation, appellant fails to mention in his brief that the trial court excluded all references to this document during trial because appellant had not produced the document upon request either during discovery or at a pre-trial conference and appellant was unable to give any reasonable excuse for this lack of production. Excluding reference to this document was, therefore, not error. See Dept. of Transp. v. Livaditis, 129 Ga. App. 358, 360 (2) (199 SE2d 573) (1973).

As to the accident report, although the trial court initially indicated the document would have to be admitted into evidence before appellant could cross-examine Henry as to its contents, after a conference held off the record, appellant proceeded to cross-examine Henry as to all salient points in the document. Thus, the record does not support appellant’s claim as to the accident report.

Decided February 23, 1988

Rehearing denied March 11, 1988

B. Dean Grindle, Jr., J. Greg Tharp, for appellant.

John H. Ridley, Jr., Robert G. Brazier, for appellee.

Finally, appellant contends he was not allowed a thorough and sifting cross-examination of Henry as to an affidavit signed by the officer. The record reflects, however, that the trial court did not restrict the cross-examination of Henry on this issue but instead made an evidentiary ruling requiring appellant to admit the affidavit into evidence before delving into its contents. We need not address the correctness of this ruling since appellant failed to object to same and it is axiomatic that failure to object in the trial court leaves nothing for this court to review on appeal. See generally Merry Shipping Co. v. Sparks, 160 Ga. App. 376, 378 (1) (287 SE2d 92) (1981).

5. Appellee’s motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied. See Harrell v. Thompson, 182 Ga. App. 470, 473 (6) (356 SE2d 69) (1987).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.