author: McMurray, Presiding Judge. Carley, Judge,

text:
    A90A2003, A90A2004.
    CLARK v. UNITED INSURANCE COMPANY OF AMERICA; and vice versa.
    (404 SE2d 149)
   McMurray, Presiding Judge.

Bonnie Kay Clark (plaintiff) sued United Insurance Company of America (defendant) and alleged that she is the beneficiary under two insurance policies issued by defendant and covering the life of plaintiff’s deceased child, Mack Jacobs a/k/a Mike Jacobs. Defendant denied liability under the policies and the case was tried before a jury. The evidence revealed the following:

On March 2, 1983, defendant issued plaintiff a life insurance policy covering her life for $5,000. The policy includes a “CHILDRENS INSURANCE RIDER” which provides that plaintiff will be paid $2,000 per child if any of her children die within the policy period. On February 1, 1986, defendant issued a life insurance policy naming plaintiff’s child, Mack Jacobs, as the insured, insuring his life for $5,000 and designating plaintiff as the beneficiary. Both policies include “ACCIDENTAL DEATH BENEFIT” provisions which provide additional coverage of “a sum equal to the face amount as part of the proceeds of the policy . . .” upon the “death of the Insured that . . . results directly . . . from accidental bodily injury; and . . . occurs while this policy and rider are in full force and effect.” The policies further provide that premiums “must be paid in advance [and that if] the premium is not paid by the end of the [31-day] GRACE PERIOD, the policy will, lapse as of the due date of that premium.” The policies also provide that a lapsed policy may be reinstated within five years upon evidence of insurability and payment of past due premiums.

On June 1, 1987, monthly premiums were paid on both policies. No premiums were paid on the policies in July or August of 1987. On September 2, 1987, Mack Jacobs was accidentally killed. On September 3, 1987, defendant’s local sales representative, Jeff Hayes, learned of Mack Jacobs’ death and on September 4, 1987, he went to plaintiffs home and instructed her “to go ahead on and pay [her policy] premium. . . .” Plaintiff’s sister went to defendant’s office and she paid $58 to one of defendant’s employees who was not aware that the money was being paid after the 31-day grace period and after Mack Jacobs’ death. The employee accepted the payment and gave plaintiff’s, sister a “CONDITIONAL TEMPORARY RECEIPT” which provides that the $58 “is accepted only on condition that said policy or policies are actually in benefit and in accordance with their terms on the date hereof; otherwise said deposit will be refunded.” (No policy information, beneficiaries or policy numbers appear on this receipt. Other than printed instructional and disclaimer information, the receipt shows only plaintiff’s name, the date of receipt “9-4-87,” the amount of money paid and general agency information.) Plaintiff thereafter claimed benefits under the policies. However, defendant refused to pay “under either contract since both policies had lapsed due to non-payment of premium at the time of death.”

The jury returned a $4,000 verdict for plaintiff under plaintiff’s life insurance policy and returned a verdict for defendant under Mack Jacobs’ life insurance policy. Plaintiff appealed in Case No. A90A2003 after the denial of her motion for new trial. Defendant cross-appealed in Case No. A90A2004. Held:

Case No. A90A2003

1. Plaintiff contends the trial court erred in denying her motion for new trial, arguing that the evidence demanded a finding that defendant waived the policy provision which provides that coverage lapses in the event of non-payment of premiums after the 31-day grace period.

“If an insurance company receives, accepts, and retains past-due premiums which are paid subsequent to the due date and expiration of the grace period, it renews the contract and waives the forfeiture for non-payments provided the acceptance is unconditional and the facts are known. An insurer which accepts past-due premiums or assessments in violation of its own regulations cannot invoke the same in order to avoid liability. Causey v. Gulf Life Ins. Co., 62 Ga. App. 378, 380 (8 SE2d 535) (1940). If a forfeiture occurs, it does so immediately upon a breach of a condition of the contract upon which it is based. Forfeitures, not being favored in the law, once made cannot be recalled. State Farm Fire &c. Co. v. Jenkins, 167 Ga. App. 4, 6 (305 SE2d 801) (1983). See also Farmers Mut. Co-op Fire Ins. Co. v. Kilgore, 39 Ga. App. 528 (1) (147 SE 725) (1929).” Horace Mann Life Ins. Co. v. Lunsford, 172 Ga. App. 866, 869 (324 SE2d 808). In the case sub judice, plaintiff argues that defendant waived the provision in Mack Jacobs’ policy which requires a lapse of benefits if payment is not received within 31 days after a premium becomes due by accepting the $58 payment from plaintiff’s sister after expiration of the 31-day grace period and with knowledge of Mack Jacobs’ death. This argument is without merit.
“The denial of a [motion for] new trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge. Code § 70-202 [now OCGA § 5-5-20]; Payton v. Turner, 50 Ga. App. 519 (179 SE 163) (1934).” Witt v. State, 157 Ga. App. 564, 565 (2) (278 SE2d 145). It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. Daniels v. Hartley, 120 Ga. App. 294, 295 (170 SE2d 315). A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence. See Burnet v. Bazemore, 122 Ga. App. 73, 74 (176 SE2d 184); Bill Jones Motors v. Mitchell, 100 Ga. App. 185, 188 (110 SE2d 555), and Gledhill v. Brown, 44 Ga. App. 670, 671 (1) (162 SE 824).

In the case sub judice, there was no evidence showing that any part of the $58 paid to defendant after Mack Jacobs’ death was credited to Mack Jacobs’ insurance policy and, even if part of the $58 was intended as a premium on Mack Jacobs’ policy, the evidence indicates that the money received by defendant from plaintiff’s sister was held in escrow in order to determine whether an insured was eligible for coverage. Further, there is no evidence that defendant’s agent, Jeff Hayes, specifically instructed plaintiff to pay Mack Jacobs’ insurance premium the day after Mack Jacobs’ death. In this regard, plaintiff testified that Jeff Hayes came to her house on the morning after Mack Jacobs’ death and told her “to go ahead on and pay [her policy] premium. . . This evidence and evidence showing that no instructions were given by plaintiff or plaintiff’s sister that the $58 was to be paid toward Mack Jacobs’ life insurance policy authorized the jury’s finding that defendant did not waive the forfeiture provision under Mack Jacobs’ policy by accepting an untimely premium payment after the insured’s death. Consequently, the trial court did not err in denying plaintiff’s motion for new trial.

Case No. A90A2004

2. Defendant, in its cross-appeal, first contends the trial court erred in denying its motion for directed verdict as there was no evidence to support a finding that defendant waived the provision in plaintiff’s life insurance policy which provides that coverage lapses when premiums are not received within the 31-day grace period. This contention is without merit.

As previously stated in our consideration of Case No. A90A2003 herein, “[i]f an insurance company receives, accepts, and retains past-due premiums which are paid subsequent to the due date and expiration of the grace period, it renews the contract and waives the forfeiture for non-payments provided the acceptance is unconditional and the facts are known.” Horace Mann Life Ins. Co. v. Lunsford, 172 Ga. App. 866, 869, supra.

In the case sub judice, plaintiff testified that over the years defendant had accepted several payments on her policy after expiration of the 31-day grace period; that defendant’s agent, Jeff Hayes, came by her home the day after Mack Jacobs died and instructed plaintiff “to go ahead on and pay [her policy] premium ...” and that defendant never returned the $58 her sister delivered to defendant’s office the day after Mack Jacobs’ death. Further, Jeff Hayes testified that plaintiff’s monthly premium had not been paid since June 1, 1987; that plaintiff’s 31-day grace period expired 31 days after June 2, 1987, and that he was aware on September 3, 1987, that Mack Jacobs was dead. This evidence was sufficient to authorize a finding that defendant waived the forfeiture provision of plaintiff’s policy. See Horace Mann Life Ins. Co. v. Lunsford, 172 Ga. App. 866, supra. Consequently, the trial court did not err in denying defendant’s motion for directed verdict.

3. Next, defendant contends the trial court erred in denying its motion for directed verdict on plaintiff’s claim under Mack Jacobs’ life insurance policy. The issue raised in this enumeration is moot since the jury found for defendant on this aspect of plaintiff’s claim.

4. In its third enumeration, defendant contends the trial court erred in allowing plaintiff to recover the “ACCIDENTAL DEATH BENEFIT” provision of her policy.

The “CHILDRENS INSURANCE RIDER” provides that “BENEFIT OPTIONS of the policy do not apply to this rider [, but that the] other terms and provisions of the policy, except as modified herein, apply to this rider.” Defendant argues that the “ACCIDENTAL DEATH BENEFIT” provision is an optional benefit which is specifically excluded in the “CHILDRENS INSURANCE RIDER.” However, defendant points to no specific provision in plaintiff’s policy which describes the “ACCIDENTAL DEATH BENEFIT” as an optional benefit. Further, we have examined plaintiff’s entire policy and find no language showing that the “ACCIDENTAL DEATH BENEFIT” provision was optional coverage for plaintiff. On the contrary, the “ACCIDENTAL DEATH BENEFIT” provision specifically provides that “[t]his benefit is part of the policy to which it is attached.”

“ ‘[I]t is a cardinal principle of insurance law that a policy or contract of insurance is to be construed liberally in favor of the insured and strictly as against the insurer. The policies are prepared by the company by experts and legal advisers acting in the interest of the company, and the insured has no voice in the selection and arrangement of the words employed.’ Atlas Assurance Co. v. Lies, 70 Ga. App. 162, 164 (27 SE2d 791), and cit.” Kytle v. Ga. Farm &c. Ins. Co., 128 Ga. App. 109 (1), 112 (195 SE2d 787). Further, where language of an insurance policy is ambiguous, it must be construed most strongly against the insurer and in favor of the insured. Hutsell v. U. S. Life Title Ins. Co. &c., 157 Ga. App. 845, 846 (1), 847 (278 SE2d 730).

In the case sub judice, since there is no clear indication that the “ACCIDENTAL DEATH BENEFIT” was an optional benefit under plaintiff’s policy of insurance, the trial court did not err in allowing the jury to determine whether plaintiff was entitled to recover under the “ACCIDENTAL DEATH BENEFIT” provision of the policy. This enumeration is without merit.

5. Defendant contends “[t] he trial court erred in denying [its] motion to remove . . . the question of bad faith of defendant in failing to pay plaintiff’s claims.” The issue raised in this enumeration is moot since the jury found for defendant on this aspect of plaintiff’s claim.

6. In its fifth enumeration, defendant contends the trial court “erred in charging the jury that ‘private instructions or limitations not known to persons dealing with a general agent shall not affect them.’ ” Defendant argues that this instruction was not adjusted to the evidence and that it “could have misled the jury as the testimony of the sales agent in the case who did testify.” This argument is without merit.

There is evidence that defendant advised the district manager in charge of plaintiff’s policy “that the $58.00 premium which was collected after the death [of Mack Jacobs] should be credited to [plaintiff’s] policy.” (The record indicates that plaintiff was not privy to defendant’s instruction to its district manager.) This evidence authorized the trial court’s charge that “private instructions or limitations not known to persons dealing with a general agent shall not affect them.” However, even assuming that there was no evidence to support this charge, we find no error as this instruction was only pertinent to defendant’s liability under Mack Jacobs’ policy, i.e., whether defendant accepted premiums for Mack Jacobs’ policy after the insured’s death. See Hall v. State, 176 Ga. App. 498, 501 (3) (336 SE2d 604).

7. In its final enumeration, defendant contends the trial court erred in instructing the jury as to the form of the verdict. However, defendant failed to object to this jury instruction and thereby waived any defects in the charge. Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244).

Judgments affirmed in Case No. A90A2003 and in Case No. A90A2004.

Sognier, C. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I concur in the majority opinion. However, I wish to write further with regard to Division 4 dealing with the defendant’s contention that the trial court erred in allowing the jury to consider plaintiff’s claim to recover the “ACCIDENTAL DEATH BENEFIT” provided by the policy. As indicated in Division 4, the defendant contends that accidental death benefits were excluded by the terms of the Childrens Insurance Rider which provides that: “BENEFIT OPTIONS of the policy do not apply to this rider. . . .” The majority states that “defendant points to no specific provision in plaintiff’s policy which describes the ‘ACCIDENTAL DEATH BENEFIT’ as an optional benefit. Further, we have examined plaintiff’s entire policy and find no language showing that the ‘ACCIDENTAL DEATH BENEFIT’ provision was optional coverage for plaintiff.” (Majority Opinion, p. 5.) I agree with the majority’s conclusion in Division 4 that plaintiff was not precluded from recovering the accidental death benefit by virtue of the above quoted language in the “CHILDRENS INSURANCE RIDER.” However, I do not think that this conclusion is mandated only because of the absence of a specific policy provision describing the double indemnity provision as an “optional benefit.” The majority paraphrases the exclusion from the Childrens Insurance Rider as an “optional benefit,” while the applicable language is “Benefit Options.” Page 1 of the policy states: “The Benefit Options are ways we can pay the death proceeds. ...” The table of contents lists “Benefit Options” as being shown on page 8 of the policy. Page 8 of the policy is entitled “Benefit Options,” and on that page, four different methods of payment of death proceeds are set forth. Thus, the accidental death benefit of the policy is not a “benefit option.” The trial court did not err in allowing the plaintiff to recover under the “ACCIDENTAL DEATH BENEFIT” provision of her policy.

Decided March 8, 1991.

Douglas L. Gibson, for appellant.

Kopp, Peavy & Conner, J. Edwin Peavy, for appellee.

       The record shows that defendant tendered $58 into court after plaintiff filed suit to recover under the policies of insurance, but there is no evidence contradicting plaintiff’s testimony that defendant never returned the $58 premium her sister paid at defendant’s office on September 4, 1987.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A2084.
    McBRIDE v. WETHERINGTON.
    (403 SE2d 873)
   Cooper, Judge.

Appellant is an inmate who filed a pro se civil complaint against the police chief of Columbus, Georgia, alleging a violation of the Georgia public records statute, OCGA § 50-18-70 et seq. On March 5, 1990, appellant wrote to appellee and requested the police department’s investigatory files with regard to the crimes for which he had been convicted. The letter was received by the police department on March 8, 1990. On March 9, 1990, appellee responded to appellant’s request by letter, informing him that disclosure of the. records was not required pursuant to OCGA § 50-18-72 (a) (4) because there was continuing litigation in the case. Appellant filed his complaint on June 28, 1990, asserting that appellee had deliberately denied him access to public records and requesting $5,000 in compensatory damages, $10,000 in punitive damages, a jury trial and a declaratory judgment. Appellant filed a pauper’s affidavit along with his complaint. On July 19, 1990, appellee filed an answer and a motion to dismiss, asserting that appellant failed to state a claim, that the court lacked subject matter jurisdiction since appellee was willing to supply the records to appellant upon payment of a copying fee as authorized in OCGA § 50-18-71 (c) in the total amount of $2.50, and that OCGA § 50-18-73 does not authorize compensatory or punitive damages in actions brought to enforce the statute. The trial court granted the motion to dismiss “for all of the reasons asserted [in the motion to dismiss],” and ordered appellant to tender the $2.50 copying charge to appellee. Appellant appeals, pro se, the granting of appellee’s motion to dismiss.

OCGA § 50-18-70 (c) provides that the person in control of the public records requested shall have a reasonable amount of time to determine if the records are subject to access, such time not to exceed three business days. OCGA § 50-18-72 (a) (4) exempts from public disclosure “[r]ecords of law enforcement . . . agencies in any pending investigation . . ., other than initial police arrest reports, accident reports, and incident reports.” Contrary to appellant’s contentions, ap-pellee promptly responded to his request for “investigatory files” and determined at that time that the records were not subject to disclosure because of an ongoing investigation. There is no evidence in the record to indicate that this determination by appellee was not appropriately made or that appellee deliberately denied access to the records. In any event, OCGA § 50-18-73 (b) only authorizes an award of attorney fees and expenses of litigation in actions brought to enforce the statute if the court determines that the action constituting a violation of the statute was completely without merit as to law or fact. Compensatory and/or punitive damages are not authorized.

Decided March 8, 1991.

Embery McBride, pro se.

Clifton C. Fay, for appellee.

Several months after appellant’s initial request, when appellant filed his complaint, appellee determined that the records were at that time no longer exempt from disclosure and offered to provide copies of the records upon the payment by appellant of a copying fee of 25 cents per page as authorized by OCGA § 50-18-71 (c). Thus, the total fee due from appellant for the disclosure he requests is $2.50. There is no provision in the statute for the excusal of the payment of fees upon filing a pauper’s affidavit, compare OCGA § 15-6-77 (b) (4) and OCGA § 21-3-90 (b), and we have located no case law which allows such an excusal. In sum, appellant has not shown that appellee violated the statute in initially refusing to disclose and in any event the relief requested by appellant is not authorized by the statute, and further the disclosure sought by appellant is now available to him pursuant to the statute. For all these reasons, we affirm the motion to dismiss granted by the trial court.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2325.
    CARROLL v. THE STATE.
    (403 SE2d 875)
   Cooper, Judge.

Appellant was indicted on five counts of aggravated child molestation and six counts of child molestation. Counts one and two charged appellant with aggravated child molestation as to Brian Wil-lett (“Willett”). Counts three through nine charged appellant with aggravated child molestation and child molestation as to John Hart (“Hart”). Counts ten and eleven charged appellant with child molestation as to Richard Pierce (“Pierce”). After a jury trial, appellant was found not guilty on both counts relating to Willett and on one count relating to Hart and a directed verdict of acquittal was granted on one count relating to Pierce. Appellant was convicted on all other counts. Appellant appeals from his conviction and sentence and the denial of his motion for a new trial, raising as his sole enumeration of error the trial court’s failure to grant his motion to sever, in which appellant requested separate trials for the counts relating to each victim.

The evidence adduced at trial revealed that appellant’s daughter babysat for two-year-old Willett at appellant’s home. Willett testified that appellant touched his “wee-wee” with appellant’s tongue and he touched appellant’s “wee-wee” with his tongue in the bedroom of appellant’s home. Willett’s mother, upon hearing the foregoing from Willett in July 1989 called her sister, Hart’s mother, because she knew that her nephew had spent time with appellant. Apparently, appellant was a friend of the family and, beginning in 1986, offered to let Hart spend the night with him and go on fishing and swimming trips with him. Hart was 13 years old at the time of the trial in 1989. Hart testified as to several acts of molestation that occurred, including acts of oral sex. The acts occurred in appellant’s bedroom and bathroom as well as on outings in the woods. Hart testified that appellant would give him money on occasion for performing these acts, and appellant told Hart not to tell anyone what had occurred. Pierce’s mother testified that her family also knew appellant and appellant and her son were planning to do yard work together during the summer of 1989. She stated that appellant requested to take Pierce on fishing and swimming trips and she acquiesced. Pierce’s mother saw a newspaper article about appellant’s arrest, and after discussing the situation with Pierce, decided on the basis of his response to go to the police. Prior to the trial Pierce did not know the other two victims. Pierce, who was 13 years old when the incidents occurred, testified that appellant touched his penis during their swimming outings and while they were out together cutting grass. Pierce stated that appellant at times offered him money or offered to buy him some tapes if Pierce would take his clothes off and Pierce stated that appellant told him not to tell anyone about what was going on.

“ Tn Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), (the Supreme C)ourt adopted ABA Standards of severance which provide that a defendant is entitled to severance if offenses are joined simply because they are similar in nature.’ [Cit.] However, ‘(o)nly when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses. (Cits.)’ [Cit.] Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. [Cit.] ‘ “Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. (Cits.)” ’ [Cit.] ‘(S)everance in this particular kind of circumstance lies within the sound discretion of the trial judge. . . [Cit.]” Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988). The similarity of the crimes, circumstances and the victims in the case sub judice evidence a common motive, plan, scheme or bent of mind, and thus the appellant had no right to the severance of the counts. See Barber v. State, 176 Ga. App. 103 (2) (335 SE2d 594) (1985). A trial judge, in exercising his discretion to sever, “ ‘may balance the interests of the (S)tate and the accused by considering such factors as whether the same evidence would be necessary and admissible in each count, and whether the joining of counts in one trial might confuse the jury. (Cits.)’ ” Jordan v. State, 172 Ga. App. 496 (1), 497 (323 SE2d 657) (1984). In the instant case, evidence of the acts against each victim would have been admissible in each trial if separate trials had been granted. See Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989). “ ‘ “(W)here ... the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying (appellant’s) motion for severance.” ’ [Cit.]” Herring v. State, 191 Ga. App. 798 (1), 799 (383 SE2d 178) (1989); Wilson, supra. Further, the fact that the jury acquitted appellant of the charges involving Willett and of one of the charges involving Hart indicates that the jury was “ ‘ “able to distinguish the evidence and apply the law intelligently as to each offense.” (Cit.)’ [Cit.]” Herring, supra at 799; see Barber, supra. We find no abuse of discretion in the trial judge’s denial of appellant’s motion to sever.

Decided March 8, 1991.

Glover & Davis, R. Keith Prater, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Beasley, Judge. Andrews, Judge,

text:
    A90A2339.
    RICHARDSON v. THE STATE.
    (403 SE2d 877)
   Beasley, Judge.

Appellant was convicted of rape and aggravated sodomy. He contends that the State impermissibly placed his character in issue through testimony elicited by the prosecuting attorney and through her questions, entitling him to a mistrial. He further contends that the court erred in failing to instruct the jury to disregard the inadmissible evidence and improper remarks.

The evidence supporting the verdict showed the following. During the early morning hours of October 14, 1988, Lizzie Kay Collier was admitted to the hospital. She had blood on her face, hands, and clothing. She had bruises and abrasions, and she was shaking and crying. Ms. Collier knew appellant, and while she was walking home, he accosted her, kicked her in the head, struck her repeatedly, and dragged her into a cemetery, where he raped her in the vagina and anus. Spermatozoa was found in her vagina, although it was not tied to appellant through blood or DNA testing.

Appellant testified that he and Ms. Collier had smoked cocaine together. Although she told him she would have sex with him prior to smoking the cocaine, when they finished she reneged, stating she was on her period. He got furious with her and beat her severely. On cross-examination appellant admitted that he is a crack cocaine addict and that he sells cocaine and trades it for sex.

1. In her cross-examination of appellant, the prosecuting attorney asked the appellant whether he had ever met her before, and appellant stated that he had. The prosecuting attorney responded, “In the courtroom?” Appellant responded, “Yes, right here at this same spot.”

Defense counsel objected, on the ground that the State was trying to put appellant’s character in issue and could do it by prior convictions but not in the manner attempted. Without making any clear ruling on the objection, the trial court instructed the prosecuting attorney to proceed.

This question did not place appellant’s character in issue. See Lewis v. State, 255 Ga. 681, 682-683 (2a) (341 SE2d 434) (1986); Woodard v. State, 155 Ga. App. 533 (1) (271 SE2d 671) (1980).

2. Appellant claims that the trial court should have granted his motion for mistrial because the State placed his character in evidence by asking a law enforcement officer whether he knew appellant, to which the witness volunteered, “I know him on previous arrest warrants.” The trial court overruled the motion for mistrial and did not instruct the jury to disregard the testimony.

This testimony placed appellant’s character in evidence, in violation of OCGA §§ 24-2-2 and 24-9-20 (b). It was not admissible as an exception. See the dissenting opinion in Hodges v. State, 85 Ga. App. 617, 623 (2) (70 SE2d 48) (1952), for a collection of exceptions.

In cross-examination of defendant, the State elicited testimony from appellant that he was hiding under the bed in his house when he was being sought by the police. The prosecuting attorney pursued the subject and asked: “That’s where you usually hide when officers are looking for you?” Appellant responded affirmatively. The next question was, “As a matter of fact, every time you’ve been arrested in your house, you’ve been under the bed, hadn’t you?” Defendant replied, “Not exactly.” Objection was made again on the ground that the State was placing his character in issue. The court overruled the objection, and a different subject was addressed.

These questions and responses alluding to prior arrests also im-permissibly placed appellant’s character in issue.

“When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. See Felton v. State, 93 Ga. App. 48 (90 SE2d 607) (1955).” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). See also Green, Ga. Law of Evidence (3d ed.), § 10.

Whether the giving of corrective instructions is sufficient to cure the error, or whether the declaration of a mistrial is necessary, are questions addressing themselves to the discretion of the trial judge. See, e.g., Sabel v. State, 250 Ga. 640, 643-644 (5) (300 SE2d 663) (1983); Ladson v. State, 248 Ga. 470, 478 (12) (285 SE2d 508) (1981).

Improper statements by counsel require rebuke of counsel and instruction to the jury, when objection is made, and sometimes even mistrial. OCGA § 17-8-75.

In this case, the State placed inadmissible and prejudicial matter before the jury on at least two occasions. The trial court failed to take any corrective action in fulfillment of its duty. For further discussion of it, see Daniel, Ga. Criminal Trial Practice, § 20-25 at p. 590. These errors cannot be considered harmless, even though appellant admitted to some criminal conduct, because defendant was denied a fair trial.

Nor can we conclude that it is highly probable that the errors did not contribute to the verdict and judgment, as the case turned on whether the jury believed the victim’s or appellant’s version of the incident. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); cf. Minter v. State, 258 Ga. 629, 630 (2) (373 SE2d 359) (1988).

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, Pope and Cooper, JJ., concur. McMurray, P. J., Banke, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent because I believe the defendant waived any objection to the initial reference to his previous arrest by not objecting to it when made. As to the second incident found to have placed his character in issue, again alluding to previous arrests of defendant, he had previously admitted the commission of numerous other felonies before this occurred, and, even if improper, I, find it harmless in this context.

Decided March 8, 1991.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

1. The first reference was that the officer knew defendant “on previous arrest warrants.” No objection was then voiced, nor was any made for the next eight unrelated questions and answers. Then the motion for mistrial was made, contending defendant’s character had improperly been put in issue. “ ‘(A) motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. (Cits.)’ Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986); [Cits.]” McCounly v. State, 191 Ga. App. 266, 269 (5) (381 SE2d 552) (1989).

2. Pretermitting the issue of whether defendant, by acknowledging commission of several other felonies during his testimony, had already placed his character in issue, see Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988), it is clear that the prosecutor’s allusions to other arrests of defendant did not so prejudice him that the court was required to sua sponte grant a mistrial. Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). No request for mistrial or curative instructions was made by defendant, only an objection that the State had placed his character in issue. There was no reversible error. Id.; Tyler v. State, 198 Ga. App. 685 (402 SE2d 780) (1991).

I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.


text:
    A90A2361.
    GONZALEZ v. ZANT et al.
    (403 SE2d 880)
   Cooper, Judge.

Appellant, an inmate, files this pro se appeal from the trial court’s order dismissing appellant’s civil action.

Appellant brought an action against the warden of the prison in which he is incarcerated and the staff physician for a total of $300,000 in damages resulting from appellant’s fall on a wet floor surrounding a drinking fountain. Appellant alleged that after his fall, he was left unattended in the prison infirmary for over 14 hours until he was transported to another medical center for surgery to repair a broken leg. Appellant asserted that the appellees were negligent, requested damages for his residual pain and disabilities and requested a jury trial. Appellant, an indigent, filed the requisite pauper’s affidavit and proceeded in forma pauperis. The trial court stated that after thoroughly examining and thoughtfully considering the matters raised in appellant’s civil action, “[i]t is the Judgment of the Court that [appellant’s] petition fails to set out sufficient grounds upon which relief may be granted.” Appellant’s petition was dismissed.

Decided March 8, 1991.

Juan Gonzalez, pro se.

Michael J. Bowers, Attorney General, for appellees.

OCGA § 9-15-2 (d) directs the clerk to present a complaint that is submitted by an indigent party not represented by counsel directly to a judge of the court. If, after review, in the judge’s determination, “the pleading shows on its face such a complete absence of any justi-ciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.” OCGA § 9-15-2 (d). In his petition, appellant alleges that he was injured as a result of appellees’ negligence and he sets forth a factual statement in support of these contentions. “We find that the [petition was] therefore more than sufficient to set forth a cause of action under OCGA § 9-11-8, as it is only necessary that the defendants be placed on notice of the claim against them. [Cit.]” Acker v. Veal, 183 Ga. App. 297, 298 (359 SE2d 7) (1987).

Judgment reversed.

Banke, P. J., and Birdsong, P. J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1822.
    COOK v. THE STATE.
    (404 SE2d 128)
   McMurray, Presiding Judge.

Defendant was convicted of aggravated assault and this appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), arguing that the State used its peremptory strikes in a racially discriminatory manner.

“If the defendant can establish a prima facie case of racial discrimination in the prosecutor’s exercise of his peremptory challenges, the prosecutor must explain his exercise of peremptory challenges, and demonstrate that racially neutral criteria prompted the exercise of his peremptory challenges.” Gamble v. State, 257 Ga. 325 (2) (357 SE2d 792).

The record in the case sub judice shows that defendant is black and that the State used its ten peremptory challenges to exclude prospective black jurors. The State’s attorney explained that he struck two prospective jurors because they have close relatives who have been subjects of criminal prosecutions. The State’s attorney explained that the remaining eight strikes were used to exclude jurors who had recently served on criminal juries which returned verdicts of not guilty. Defendant argues that these explanations are unbelievable because the State’s attorney asked only one question during voir dire and because two prospective white jurors, who had recently served on an acquitting criminal jury, were not struck by the State.

“ ‘Once the prosecution establishes a neutral explanation related to the particular case to be tried, the trial court then will have the duty to determine if the defendant has established purposeful discrimination. Barton v. State, [184 Ga. App. 258 (2), 259 (361 SE2d 250)]. The trial court’s findings are, of course, entitled to great deference, Batson, supra . . . and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327[, supra]; accord Durham v. State, [185 Ga. App. 163, 165 (3), 166 (363 SE2d 607)]; McCormick v. State, 184 Ga. App. 687, 688-689 (362 SE2d 472) ((1987)); Killens v. State, 184 Ga. App. 717, 720 (362 SE2d 425) ((1987)); Evans v. State, 183 Ga. App. 436, 440 (359 SE2d 174) ((1987)). Because the U. S. Supreme Court has cautioned us that the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference. Hillman v. State, 182 Ga. App. 47, 48 (354 SE2d 673) ((1987)).’ (Punctuation omitted.) Glanton v. State, 189 Ga. App. 505, 506-507 (376 SE2d 386) (1988). See also Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988).” Kincey v. State, 191 Ga. App. 300 (1) (381 SE2d 439).

In the case sub judice, we find no abuse in the trial court’s determination that the State’s explanations were credible and that the State’s reasons for excluding the ten prospective black jurors were not aimed at purposeful discrimination. See Kincey v. State, 191 Ga. App. 300 (1), supra. Consequently, the trial court’s denial of defendant’s motion under Batson v. Kentucky, supra, was not erroneous.

2. Next, defendant contends the trial court erred in failing to charge the jury on self-defense, arguing that his “testimony established a prima facie case of self defense.” This argument is not supported by the record.

Defendant was charged with aggravated assault in that he did “make an assault upon the [victim] with a deadly weapon, to wit: a knife” The victim testified that defendant attacked him and cut him on the hand and head with a “little pocketknife.” Defendant testified that the victim started the fight and that he did not possess a knife during the altercation. Defendant explained on cross-examination that he “couldn’t tell [how the victim was stabbed, but speculated that the victim] might have cut hisself (sic) or . . . might have had a knife or something. . . .” This testimony does not authorize a finding that defendant used a knife against the victim in self-defense. See Wilkerson v. State, 183 Ga. App. 26, 28 (3) (357 SE2d 814). Consequently, the trial court did not err in refusing to give a charge on self-defense.

3. In his third enumeration, defendant contends the trial court erred in excluding testimony that the victim “had beaten him up on two previous occasions; one a little more than a month before the alleged stabbing.”

A victim’s prior acts of violence against a defendant are relevant in weighing the truth of a defendant’s claim of justification. Milton v. State, 245 Ga. 20, 26 (262 SE2d 789). However, “in order to introduce evidence of the violent nature of the . . . victim, defendant must make a prima facie showing that the victim was the aggressor, was assailing defendant, and defendant was honestly seeking to defend himself. Bennett v. State, 254 Ga. 162, 164 (3) (326 SE2d 438) (1985); Milton v. State, 245 Ga. 20, 22[, supra]; Dasher v. State, 146 Ga. App. 118 (1) (245 SE2d 476) (1978). Whether these criteria have been met is a matter within the sound discretion of the trial court. Curtis v. State, 241 Ga. 125, 126 (1) (243 SE2d 859) (1978).” (Emphasis supplied.) Hagans v. State, 187 Ga. App. 216, 217 (1) (369 SE2d 536).

In the case sub judice, defendant’s testimony authorized a finding that the victim was the aggressor and that the victim was assailing defendant, but there was no evidence that defendant honestly sought to defend himself with a knife during the fight. Defendant simply testified that he did not then have a knife and that he did not stab the victim. Consequently, since justification was not a defense to the stabbing, the trial court did not abuse its discretion in refusing to admit evidence of the victim’s prior violent acts against defendant.

4. In his fourth enumeration, defendant contends the trial court “erred in failing to exclude from evidence an in custody statement allegedly made by [him] when all material parts of the statement were not served on the defendant ten days prior to trial as required by O.C.G.A. [§] 17-7-210.”

At trial, a police officer testified that defendant’s custodial “statement [included an admission] that he was hiding in the bushes . . .” before he stabbed the victim. Defense counsel objected and argued that this testimony is materially different from the statement the State gave him pursuant to defendant’s OCGA § 17-7-210 demand. More specifically, defense counsel stated that the State responded to defendant’s demand as follows:

“ ‘[Defendant] admitted cutting [the victim] on 12/27/87. He claimed this was in retaliation for an earlier attack on him by [the victim]. MPD Officers Babb, Rogers and Mazza witnessed the statement.’ ”

The State’s attorney affirmed in open court that the above statement was “the statement [he] served on [defense counsel]” and argued that it was not necessary to notify defendant that the custodial statement included an admission by defendant that he “hid in the bushes and when the victim came by, he’d jumped on him” because the admission was not “inculpatory or exculpatory.”

“OCGA § 17-7-210 (Code Ann. § 27-1302) provides in pertinent part: ‘(b) If the defendant’s statement is oral or partially oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant’s statement . . . (d) If the defendant’s statement is oral, no relevant and material (incriminating or inculpatory) portion of the statement of the defendant may be used against the defendant unless it has been previously furnished to the defendant, if a timely written request for a copy of the statement has been made by the defendant.’ ” (Emphasis supplied.) Van Kleeck v. State, 250 Ga. 551 (1) (299 SE2d 735). In the case sub judice, defendant argues that the trial court should not have allowed the statement because “it introduces an element of lying in ambush.”

We agree that the “ambush” portion of defendant’s statement should have been made available to defendant. See Huguley v. State, 253 Ga. 709 (2), 710 (324 SE2d 729). “However, in Wallin v. State, 248 Ga. 29 (279 SE2d 687) (1981), where the state similarly provided the defendant with an incomplete in-custody statement, the Supreme Court applied the ‘highly probable that it did not contribute to the verdict’ test and found the error harmless.” Dickey v. State, 179 Ga. App. 383, 384 (1), 385 (346 SE2d 864). The circumstances of the case sub judice demand the same result.

Lieutenant James Dominic Mazza of the City of Milledgeville Police Department testified that defendant’s clothing was covered with blood when he arrived at the scene and that defendant stated to him that he had “just cut a boy.” Lieutenant Mazza further testified that he later found the 16-year-old victim; that the victim had sustained serious bleeding lacerations to the head and that the victim identified defendant as the person who stabbed him. Two other City of Mil-ledgeville police officers testified and corroborated Lieutenant Mazza’s testimony. The victim testified and identified defendant as the person who stabbed him. Defendant testified and admitted to fighting with the victim on the night of the stabbing. This evidence was not only sufficient to meet the standard of proof required under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), it overwhelmingly proved defendant’s guilt. Thus, we find it highly probable that introduction of the tainted testimony did not contribute to the verdict.

Decided February 20, 1991

Rehearing denied March 11, 1991

Milton F. Gardner, Jr., for appellant.

Joseph H. Briley, District Attorney, Al C. Martinez, Jr., Assistant District Attorney, for appellee.

5. In his final enumeration, defendant contends the trial court “erred in holding that [his] motion for new trial was waived when he altered the terms of defendant’s sentence.” This enumeration is without merit. The record shows that the trial court denied defendant’s motion for new trial after considering the merits of defendant’s claims.

Judgment affirmed.

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


text:
    A90A1602.
    BROWN v. THE STATE.
    (404 SE2d 154)
   McMurray, Presiding Judge.

Defendant was charged in a multi-count indictment with theft by taking of two air conditioning units belonging to Jerry Harper (Counts 1 & 2). In five other counts, defendant was charged, along with a co-defendant, with burglarizing the home of James T. Roberts (Count 3); burglarizing the home of Gary Law (Count 4); burglarizing the home of Johnny Ivemeyer (Count 5); theft by taking of electrical equipment and ladders belonging to Johnny Ivemeyer (Count 6) and burglarizing Varnell Hendley’s storage building (Count 7). Defendant pleaded not guilty to all counts of the indictment. The co-defendant pleaded guilty on Counts 3 through 7 of the indictment and was later listed as a State’s witness.

At a jury trial, the co-defendant testified that he and defendant committed the crimes charged in Counts 3 through 7 of the indictment and that defendant informed him that he “and one other man got. . .” Jerry Harper’s air conditioning units. The co-defendant further testified that defendant approached him after he gave an incriminating statement to law enforcement officers and that defendant then attempted to induce him to perjure himself at defendant’s trial. The co-defendant testified that he thereafter informed law enforcement authorities of defendant’s attempt to suborn perjury; that he consented to being equipped with a body wire transmitter; that he attempted to locate defendant two or three times while equipped with the body wire transmitter; that he located defendant at an apartment complex; that law enforcement officers took him “to where [defendant] was ...” and that he then attempted to induce defendant to incriminate himself.

The State introduced a tape recording of the co-defendant’s conversation with defendant at trial and a transcript of this recording reveals that the co-defendant’s remarks to defendant prompted defendant to make incriminating statements. Defendant was found guilty of theft by receiving stolen property under Counts 1 and 2 of the indictment and guilty of the crimes charged in the remaining counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends that his Sixth Amendment right to counsel was violated by the admission of the tape recorded conversation between him and the co-defendant.

Generally, a defendant “[has] no right to rely on privacy of any of his conversations with his co-conspirators. They [are] under no legal duty to him not to record or divulge what he said. [Cits.]” State v. Birge, 240 Ga. 501, 502 (241 SE2d 213). However, after the initiation of formal charges and after a defendant has exercised his Sixth Amendment right to counsel, the State may not intercept or compel incriminating information from the defendant through the subterfuge of an undisclosed informant. Maine v. Moulton, 474 U. S. 159, 176 (106 SC 477, 88 LE2d 481).

“The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State. . . . [T]his guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached. See [United States v. Henry, 447 U. S. 264, 276 (100 SC 2183, 65 LE2d 115)] (POWELL, J., concurring). However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” (End note omitted.) Maine v. Moulton, 474 U. S. 159, 176, supra.

In the case sub judice, law enforcement officers sought to obtain incriminating information from defendant through the use of the co-defendant’s undisclosed body wire transmitter while defendant was under indictment and after defendant exercised his Sixth Amendment right to counsel and had pleaded not guilty. Since defendant had no knowledge that co-defendant was an agent for the State during the tape recorded conversation, defendant was denied the opportunity to consult with counsel and thus denied the assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution. Consequently, the trial court erred in allowing the State to introduce evidence of the tape recorded conversation between defendant and the co-defendant which included incriminatory statements by defendant concerning at least some of the offenses for which he had already been indicted. Consequently, defendant must be accorded a new trial.

2. In his second enumeration, defendant contends the trial court erred in allowing evidence of an alleged similar transaction, arguing that there was insufficient evidence to show that he was the perpetrator of the alleged similar crime. More specifically, defendant argues that the only indication that he was in possession of goods taken during the alleged similar crime was a law enforcement officer’s hearsay testimony that the serial number on electrical equipment found in defendant’s truck matched the serial number of electrical equipment taken during an alleged similar theft.

Chief Investigator Randy Bagley of the Ben Hill County Sheriff’s Department testified that he executed a search warrant for defendant’s truck and that he found electrical equipment which he suspected were objects of local thefts. The chief investigator further testified that he went to a local “Radio and TV” shop “to see if there was some identification on [the equipment and that] Mr. Bill Griffin took the cover off of the [equipment], obtained the serial number, and checked in his files and determined that it did belong to [the victim of an alleged similar theft].” Defendant argues that this testimony was insufficient to show that the electrical equipment found in defendant’s truck was the same as the equipment stolen during the alleged similar transaction. We agree.

Chief Investigator Bagley received information regarding the serial number of stolen equipment from a man who had access to a business record which purportedly reflected the serial number of said stolen equipment. There is no evidence showing that Chief Investigator Bagley had actual knowledge of the serial number of the equipment stolen during the alleged similar transaction and there is no evidence that the business record which purportedly reflected the serial number of the stolen equipment was properly introduced into evidence. Moore v. State, 154 Ga. App. 535, 538 (268 SE2d 706); Porterfield v. State, 150 Ga. App. 303, 304 (257 SE2d 372). See Cawthon Motor Co. v. Scheufler, 153 Ga. App. 282, 285 (1) (265 SE2d 96), and Green, Ga. Law of Evidence (3d ed.), § 313, p. 518. Consequently, Chief Investigator Bagley’s identification testimony of the electrical equipment found in defendant’s truck was inadmissible hearsay and therefore had no probative value in proving that defendant was either in possession of stolen goods or that he was the perpetrator of the alleged similar transaction. See Curtis v. State, 190 Ga. App. 173, 174 (2), 175 (378 SE2d 516).

3. In his third enumeration, defendant contends the trial court erred in allowing the State’s attorney to cross-examine him on matters regarding the attorney-client privilege. Any error reflected in this enumeration is highly unlikely to occur upon re-trial. See OCGA § 24-9-27 (c); Felts v. State, 244 Ga. 503, 505 (4) (260 SE2d 887); Green, Ga. Law of Evidence (3d ed.), § 179, p. 331. Consequently, it is unnecessary to address this enumeration of error.

4. Defendant asserts the general grounds in his final enumeration, arguing that there was insufficient evidence to corroborate the co-defendant’s testimony linking defendant to the crimes charged.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 (Code Ann. § 38-121). The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. Allen v. State, 215 Ga. 455 (111 SE2d 70) (1959). ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (Cit.)’ Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).” Castell v. State, 250 Ga. 776, 778 (1 c), 780 (301 SE2d 234).

(a) Theft by Receiving Stolen Property (Counts 1 & 2). Defendant was indicted under Counts 1 and 2 for theft by taking of Jerry Harper’s two air conditioning units, but the jury found him guilty of theft by receiving stolen property, the air conditioning units. This was an illegal verdict because theft by receiving stolen property is not a lesser included offense of theft by taking alleged in the indictment. “They are two completely different crimes, having different elements, and are in fact, so mutually exclusive that the thief and the receiver cannot even be accomplices. Plummer v. State, 126 Ga. App. 482, 483 (191 SE2d 333).” Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367). See Lee v. State, 259 Ga. 230, 232 (3) (378 SE2d 855).

“ ‘ “It is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.” (Cit.). . . . The gravamen of the offense of receiving stolen (property) is that the defendant purchased or obtained (it) from a third person, knowing at the time that (it) had been stolen by another. (Cit.)” Adams v. State, 164 Ga. App. 295, 296 (297 SE2d 77) (1982). Further, “ ‘ “it has uniformly been held that burglary, larceny or robbery is an entirely separate offense from that of receiving stolen (property) and that there can be no merger.” (Cits.)’ Adams v. State, 164 Ga. App. 295, 296[, supra].” Holloman v. State, 168 Ga. App. 683 (1), 684 (310 SE2d 734). Consequently, since theft by receiving Jerry Harper’s stolen air conditioning units was not expressly charged in the indictment and could not be deemed to be included in the offenses charged in Counts 1 and 2, defendant could not have been convicted of theft by receiving Jerry Harper’s stolen air conditioners. It therefore follows that defendant’s convictions under Counts 1 and 2 cannot stand. Holloman v. State, 168 Ga. App. 683 (1), 684, supra.

(b) Burglary of the home of James T. Roberts (Count 3). The co-defendant testified that he and defendant broke into the home of James T. Roberts and stole several pieces of electrical equipment. More specifically, the co-defendant explained that after he and defendant entered the Roberts house he “waited on [defendant] to show [him] where the stuff was at that [the men] was going to get.” The co-defendant also testified that he and defendant then “went back in the house into a little room and opened the door and . . . got [several pieces of electrical equipment].” The co-defendant further testified that he and defendant gave the equipment to “Rozier Mills ... as parts because they . . . wasn’t any good, they wouldn’t work.” James T. Roberts corroborated this evidence, testifying that defendant had been in his house before the burglary and that defendant was the only person outside his family who was familiar with the storage location of the equipment which was taken from the Roberts home. Other corroborating evidence showed that the equipment stolen from Roberts’ home was “recovered from Rozier Mills place of business” and that other stolen items, which were sold to Rozier Mills by defendant, were recovered at Rozier Mills’ place of business. This corroborating evidence sufficiently supported the co-defendant’s testimony that defendant committed the burglary at James T. Roberts’ home. Dobbs v. State, 180 Ga. App. 714, 715 (1) (350 SE2d 469). Further, the evidence adduced at trial was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the crime charged in Count 3 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

(c) Burglary of the home of Gary Law (Count 4). The co-defendant testified that he and defendant burglarized the home of Gary Law. This testimony was sufficiently corroborated by evidence that goods stolen from Gary Law’s home were found in defendant’s storage barn. Dobbs v. State, 180 Ga. App. 714, 715 (1), supra. The evidence adduced at trial was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the crime charged in Count 4 of the indictment. Jackson v. Virginia, 443 U. S. 307, supra.

(d) Burglary and theft by taking at the home of Johnny Ivemeyer (Counts 5 & 6). The co-defendant testified that during July of 1987 he and defendant “went up to [Johnny Ivemeyer’s] house [in defendant’s truck] and . . . got a CB antenna, and [that they] went into [the Ivemeyer] house and got a CB base station and then [the men] come out and . . . got a ladder and everything.” The co-defendant further testified that “Walter Belmer” passed them as they were leaving the scene of the crimes. Walter Belmer testified that during July of 1987 he saw the co-defendant and another unidentified person leaving the Ivemeyer house in a truck which matched the description of defendant’s truck. Mr. Belmer testified that the co-defendant was on the passenger side of the truck. This evidence sufficiently corroborated the co-defendant’s testimony that defendant was a participant of the burglary and theft by taking at the Ivemeyer residence. Dobbs v. State, 180 Ga. App. 714, 715 (1), supra. The evidence adduced at trial was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the crimes charged in Counts 5 & 6 of the indictment. Jackson v. Virginia, 443 U. S. 307, supra.

(e) Burglary of Varnell Hendley’s storage building (Count 7). The co-defendant testified that he and defendant burglarized Varnell Hendley’s storage building. The State contends that this testimony was corroborated by evidence that items stolen from Varnell Hen-dley’s storage building were “recovered from a location in Coffee County, Georgia where they had been sold by [defendant].” We fail to find evidence in the record supporting this contention. The evidence shows that defendant sold some stolen items to Rozier Mills and that some of these items were recovered from Rozier Mills’ place of business in Coffee County, Georgia, but it does not show that defendant sold the items taken during the burglary of Varnell Hendley’s storage building to Rozier Mills. Further, we have examined the entire trial transcript and we find no evidence, outside the co-defendant’s testimony, linking defendant to the burglary of Varnell Hendley’s storage building. Consequently, defendant’s conviction on Count 7 of the indictment must be reversed. See Milton v. State, 248 Ga. 192, 195 (2) (282 SE2d 90).

Decided March 11, 1991.

Gary C. McCorvey, for appellant.

John C. Pridgen, District Attorney, Kathryn 0. Fallin, Assistant District Attorney, for appellee.

Judgment reversed.

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

       The co-defendant testified that he affirmatively sought defendant while wearing the wire body transmitter so that he could “talk with [defendant] about [the defendant’s attempt to suborn perjury] and [to] go back over what [the co-defendant] was to get up [during defendant’s trial] and tell the jury.”


author: Pope, Judge.

text:
    A90A2278.
    PALO et al. v. MEISENHEIMER et al.
    (403 SE2d 881)
   Pope, Judge.

Plaintiff/appellant Deborah Palo, individually and in her capacity as parent and next friend of Lisa Marie Palo, brought suit against defendants Dennis and Sue Meisenheimer to recover damages for injuries sustained by plaintiff’s daughter when she was bitten by defendants’ Rottweiler dog. The jury awarded plaintiff $4,804.96 for medical expenses in her individual capacity. The jury also found in favor of plaintiff as parent of Lisa Palo but awarded no damages for her daughter’s pain and suffering. Plaintiff appeals the denial of her motion for new trial. We affirm.

1. Plaintiff contends the trial court erred in charging the jury on legal accident. Pretermitting whether the complained of charge was authorized under the facts of this case, we find no merit to this enumeration. “Since the jury returned a verdict for the [plaintiff, both individually and as next friend of her minor daughter], it is apparent that this charge was not applied. Therefore, any error that may have been committed was harmless. Stroud v. Woodruff, 183 Ga. App. 628 (3) (359 SE2d 680) (1987).” Guriy v. Hinson, 194 Ga. App. 673, 674 (5) (391 SE2d 483) (1990). See also Benson v. Tucker, 160 Ga. App. 217 (3) (286 SE2d 485) (1981).

2. Plaintiff next contends the trial court erred in charging on contributory and comparative negligence because no evidence was presented from which the jury could reasonably infer that Lisa Palo had been negligent. We disagree. As the trial court aptly noted “the two questions of fact which [authorize] a charge on that point of law [are] whether or not the child was negligent in failing to heed the instructions of the defendants with regard to not going outside where the dog was; and, secondly, the failure of the child to withdraw after the dog showed some consternation ... by growling. Those are questions for the jury to decide, not for the Court to decide as a matter of law. Whether or not that amounted to either contributory or comparative negligence is a question for the jury to decide.” We agree this evidence was sufficient to authorize the charge given in this case. See Benson v. Tucker, supra at (1); see also Jackson v. Young, 125 Ga. App. 342 (2) (187 SE2d 564) (1972).

Decided March 11, 1991.

Charles A. Mullinax, for appellants.

Stephen L. Cotter, Swift, Currie, McGhee & Hiers, Julie L. Ginden, for appellees.

3. Lastly, plaintiff contends that the damages awarded her daughter were so inadequate as to justify the inference of gross mistake, undue bias and prejudice on the part of the jury. See OCGA § 51-12-12. “This enumeration of error is also without merit. Generally speaking, where ‘comparative negligence (is) involved under the pleadings and the evidence . . ., a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.’ Cox v. Nix, 87 Ga. App. 837, 839-840 (75 SE2d 331) (1953).” Stroud, supra at 630 (5). See also Benson v. Tucker, supra at (4); Murray v. Woods, 106 Ga. App. 267 (2) (126 SE2d 828) (1962).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A2301.
    CAMPBELL v. THE STATE.
    (403 SE2d 882)
   Pope, Judge.

Appellant Larry Campbell appeals the denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170. The indictment against Campbell was filed in McIntosh Superior Court on October 13, 1989. OCGA § 15-6-3 (4) (E) provides that the terms of McIntosh Superior Court commence on the fourth Monday in February and May, on the second Monday in September and on the first Monday in December. On February 15, 1990, during the December term of court, Campbell filed his demand for speedy trial pursuant to OCGA § 17-7-170. Jury trials were held in the December term of court after the filing of Campbell’s demand. Jury trials also were held during the February term of court. On June 4, 1990, Campbell filed his motion for discharge and acquittal. The order of the trial court denying the motion was entered August 6, 1990. Held:

We reverse. OCGA § 17-7-170 (b) mandates discharge and acquittal if a defendant is not tried at the term in which a demand is properly filed or at the next term following the filing of the demand, provided juries were impaneled and qualified to try the defendant at both court terms. According to OCGA § 15-6-3 (4) (E), the December term of court began the first Monday in December. OCGA § 15-6-19 provides that a regular term of court ends with the commencement of the next regular term. Thus, the December term ended with the beginning of the February term on the fourth Monday of February. The record shows that juries were impaneled and qualified to try Campbell during the December term after his demand was filed. Campbell’s demand for speedy trial was therefore effective in the December term. See Kaysen v. State, 191 Ga. App. 734 (382 SE2d 737) (1989). The February term ended with the beginning of the May term on the fourth Monday in May. The record shows that juries were impaneled and qualified to try Campbell during the February term. The conclusion is inescapable that Campbell is entitled to discharge and acquittal.

The State argues because the trial calendar for jury trials had been published before Campbell filed his demand, there were no juries impaneled and qualified to try him, and OCGA § 17-7-170 (b) was not triggered. We do not agree. A calendar serves the convenience of and promotes the orderly business of a court in disposing of its duties. Although we recognize the difficulty to the trial court in balancing the competing interests of the State, defendants, witnesses and its own interest in the orderly disposition of court business, nonetheless the convenience of a set calendar must give way to the clear mandate of statutory law. OCGA § 17-7-170 clearly puts the burden on the State to try a defendant within the time limits set by statute.

Nor are we persuaded by the State’s argument that the effect of OCGA § 17-7-170 is avoided because the February term of court is a special term. This argument apparently is based on history and custom in McIntosh Superior Court. Before 1984, the law provided that McIntosh County Superior Court had four terms.'However, grand jurors and trial jurors were chosen and available only during the May and December terms. The February and September terms were non-jury terms. Ga. L. 1945, p. 1023. However, the current law (Ga. L. 1984, p. 4054) changed the system to provide for the four terms as set out earlier in this opinion. Under current law, grand jurors are chosen at the beginning of the May and December terms and serve until the next grand jury convenes. The State argues that because the grand jury serves from May to December and from December to May, these two terms are the regular terms and the September and February terms are special terms that overlap the regular terms. Under this reasoning, the February term would not count as the second term in which the State must try Campbell. However, this argument misses the import of the change in the law in 1984. The current law provides for four terms without restriction to their being jury or non-jury, criminal or civil. Because each of the four terms is prescribed by law. none of the terms can be considered a special term. See OCGA § 15-6-20.

Decided March 11, 1991.

Richard H. Taylor, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

The trial court erred in finding Campbell was not entitled to discharge and acquittal pursuant to OCGA § 17-7-170.

Judgment reversed.

Beasley and Andrews, JJ., concur.


text:
    A90A2310.
    NORTON v. THE STATE.
    (403 SE2d 884)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault and appeals from the denial of his motion for new trial. On appeal he contends that the trial court erred in admitting into evidence two alleged similar transactions.

The evidence showed that on January 24, 1987, the victim, a black American, participated in the “Brotherhood March” through the City of Cumming, Georgia, to the Forsyth County Courthouse. After listening to the speakers at the courthouse, the victim and several other participants in the march returned to their cars, encountering along the way persons who called them names and threw rocks, bricks and other objects at them. As the victim crossed the street in front of an establishment in which appellant had earlier been drinking, the victim was struck in the head with an unknown object which fractured his skull. It was later determined that the object which hit the victim was a piece of brick; however, the victim did not see who threw the brick at him.

The week following the brotherhood march, agent Douglas Carter was assigned to investigate the assault on the victim. Agent Carter, through contacts with local law enforcement agencies, followed various leads and interviewed numerous witnesses which eventually led to appellant’s arrest. Agent Carter took written statements from many persons who stated that appellant told them that on the day of the brotherhood march he hit a black person in the head with a rock or brick. The statements indicated that appellant repeatedly referred to black people as “niggers.” At trial, when some of those same individuals testified that the statements they gave to Agent Carter were not true, their statements were read into evidence for purposes of impeachment. The State also presented several witnesses who testified that sometime after the march, appellant told them that he had been in Forsyth County on the day of the march and had hit a black person in the head with a rock. Also, an officer with the City of Cumming police department testified that he arrived at the scene after the victim had been hit and that a little girl pointed at appellant as someone who had been throwing rocks.

The State introduced evidence of three similar transactions, and the admission of two of those form the basis for this appeal. The transcript from the hearing to determine the admissibility of the similar transactions reveals that in December 1987, appellant, while driving a tractor-trailer truck on an interstate highway in Maryland, pulled alongside Edward Reed, a black man, in an effort to prevent Reed from accelerating. The two began talking via CB radio, and appellant repeatedly referred to Reed as a “nigger” and made other derogatory comments. While appellant’s truck was alongside Reed’s truck, appellant aimed a gun out his window at Reed and threatened to kill him before driving away. When Reed spotted appellant’s truck at a nearby truck stop, he stopped and called the police. The officer who took the report of the incident testified that appellant was very hostile and kept referring to Reed as a “nigger” and made other racially derogatory remarks to Reed. With regard to the second transaction, Christine Duvall testified that on January 15, 1987, she got into an argument with appellant at her girl friend’s trailer. She left the trailer to get in her car, and appellant followed her and began throwing rocks and/or bricks at her car window. Appellant argues that the transactions did not meet the standard for admission of similar transactions and that the evidence improperly placed his character in evidence. We disagree.

“ ‘ “Evidence of other similar crimes by a defendant is admissible if there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Such evidence may be admitted to show state of mind or intent of a defendant. . . .” ’ (Citations and punctuation omitted.) [Cits.]” Flanagan v. State, 193 Ga. App. 408, 409 (2) (388 SE2d 29) (1989). We find no error with the admission of the similar crimes evidence. It is undisputed that appellant was the perpetrator of the independent crimes and there was a sufficiently similar connection between the independent crimes, and the offense charged. The transaction involving Mr. Reed was offered to show appellant’s hostile state of mind toward two unknown black men, which in both cases culminated in an unprovoked assault on the men. The transaction involving Ms. Duvall, while lacking the racial element was offered to show appellant’s propensity for throwing rocks or bricks at persons when he becomes angry or agitated. Furthermore, the court charged the jury on the limited purpose for which the similar transaction evidence was being admitted. Based on the similarities and the purposes for which the evidence was admitted, we find no error in the trial court’s admission of this evidence. See Jordan v. State, 192 Ga. App. 69 (2) (383 SE2d 631) (1989).

Decided March 11, 1991.

Howard & Delaney, Stephen A. Delaney, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1583.
    COBBLE v. THE STATE.
    (404 SE2d 134)
   McMurray, Presiding Judge.

Defendant Cobble was charged with the offenses of aggravated assault (with intent to commit murder), aggravated assault (with a deadly weapon), burglary, and aggravated battery. The jury returned a verdict of guilty as to all charges and defendant was sentenced. Subsequently, the trial court determined that the two counts of aggravated assault were based on the same facts and thus merged, whereupon the judgment and sentence for the offense of aggravated assault (with a deadly weapon) was vacated and set aside. Defendant appeals his conviction of the remaining three offenses. Held:

1. During the pendency of the charges against defendant, he filed an action in United States District Court against his appointed attorney, a DeKalb County public defender, alleging that he had been provided inadequate assistance of counsel. Before trial, defendant made the trial court aware of his United States District Court action against his attorney, related that for a period of time he had refused to discuss the case with the public defender, and asserted his claim of ineffective assistance of counsel.

In open court, the trial court inquired of defendant’s attorney concerning defendant’s allegations of inadequate preparation for trial and after considering the attorney’s response determined that defendant was “in very good hands from a legal standpoint. . . .” The trial court directed the public defender to continue to represent defendant.

Upon the call of the case for trial, defendant protested his continued representation by the appointed attorney and elected to proceed pro se. The attorney, formerly appointed to represent defendant, was instructed to remain at the defense table and available to render advice as requested.

Defendant’s first enumeration of error complains of the trial court’s refusal to appoint to represent him, another attorney with whom he had no “conflict of interest.” Defendant’s action in federal court against the public defender was dismissed prior to the trial of the case sub judice. Even had the federal action remained pending, we fail to see how that action would result in a division of the attorney’s loyalty so as to adversely affect the defense of the criminal case sub judice. In other words, the attorney could not have adversely affected his own interest in the federal litigation by providing defendant with capable, competent and enthusiastic representation in the case sub judice.

An indigent defendant does not have the right to change or refuse his court-appointed counsel. Gibbs v. State, 168 Ga. App. 417, 419 (2) (309 SE2d 412). Defendant’s choice to waive the right of representation by counsel was made after he was made aware of his right to counsel and the dangers of proceeding without counsel. Even so, defendant was provided with the assistance of an attorney during trial. We find no error. Williams v. State, 192 Ga. App. 317 (2) (384 SE2d 877).

2. Defendant’s second, third, and fourth enumerations of error complain of comments before the jury by the assistant district attorney or the trial court which allegedly placed defendant’s character in issue or denied defendant his Fifth Amendment protection against self-incrimination. None of these issues was raised in the trial court, but are raised for the first time on appeal. Under these circumstances, these issues are not preserved for appeal, but are waived. Newton v. State, 259 Ga. 853, 854 (5, 6) (388 SE2d 698).

3. Defendant’s, final enumeration of error complains of the trial court’s failure to instruct the jury on the lesser included offense of reckless conduct. Although the trial court announced its intention to charge on this offense, the court did not.

Insofar as defendant’s complaint is that he was misled as to the content of the charge, his remedy was to request an opportunity to reargue. No such request was made, thus this issue was waived. Fair v. State, 172 Ga. App. 49 (1), 50 (321 SE2d 790); Daniels v. State, 137 Ga. App. 371, 373 (4) (224 SE2d 60). This is not a case involving such a total failure to comply with OCGA § 5-5-24 (b) as would require a reversal. Thomas v. State, 168 Ga. App. 587, 589 (4) (309 SE2d 881). Compare Evans v. State, 146 Ga. App. 480 (1), 482 (246 SE2d 482).

Insofar as defendant’s complaint is directed to a failure of the trial court to give a charge on a lesser included offense, no error is shown since defendant did not make a proper request to charge on the offense of reckless conduct. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354); Young v. State, 191 Ga. App. 651, 654 (4) (382 SE2d 642). This enumeration of error is without merit.

Decided February 26, 1991

Rehearing denied March 12, 1991

Robert G. Morton, for appellant.

Robert E. Wilson, District Attorney, Desiree L. Sutton, Thomas S. Clegg, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A1724.
    WELLS v. CITIZENS & SOUTHERN TRUST COMPANY et al.
    (403 SE2d 826)
   Banke, Presiding Judge.

Appellant Wells sued the appellees, as the owners and managers of his apartment complex, to recover for injuries allegedly sustained when he fell while descending a stairway leading from his apartment to a parking lot behind the building. The appellant alleged that the stairway was insufficiently illuminated and that the appellees were liable for allowing such an unsafe condition to exist on the premises. The case is before us on appeal from the grant of the appellees’ motion for summary judgment.

The appellant had been a resident of the building for approximately seven months at the time of the incident. His apartment had both a front and rear door, each opening to a separate stairway. On the night in question, the appellant exited his apartment through the rear door, as he routinely did several times a day. Upon closing the door behind him, he observed that the overhead light above the stairway was not on, but he nevertheless proceeded downstairs. Upon reaching a concrete landing located fewer than five steps from the top of the stairway and only two or three steps from the bottom, he realized that a second light, positioned outside the screen door at the bottom of the stairway, also was out. He continued on and fell on the final step, believing in the darkness that he had already reached the bottom of the stairway. There was testimony that the distance between the top of the stairway and the ground was only about five feet and that if the fixture outside the screen door had been on, the light from it would have been visible from the top of the stairs. Held:

While a landlord is under a statutory duty to keep the premises in repair (see OCGA §§ 44-7-13; 44-7-14), he is not an insurer of his tenants’ safety. See generally Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (2) (210 SE2d 337) (1974). “Even though the condition of the premises may be hazardous and the landlord negligent, he may not be liable for injury where the [tenant] had equal or superior knowledge of the alleged defect. If a [tenant] knows of a defect, ‘[he] must use all of [his] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [him].’ [Cits.]” Hall v. Thompson, 193 Ga. App. 574 (388 SE2d 381) (1989). “Although the issue of the plaintiff’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable.” Soucy v. Alexander, 172 Ga. App. 501, 502 (323 SE2d 662) (1984).

Decided February 19, 1991

Rehearing denied March 12, 1991

Jack F. Witcher, John W. Kilgo, John W. Sherrod, for appellant.

The appellant is charged “with knowledge of those defects which he had actually observed or which were so transparently obvious that his failure to observe them cannot reasonably be excused.” Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (378 SE2d 154) (1989). It is apparent beyond dispute that the appellant was aware that the stairway was not illuminated before beginning his descent and that an alternate safe means of egress was readily accessible to him, which he chose not to use. Compare Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984) (where the alternate stairway provided a less safe means of egress). Thus, even assuming arguendo the truth of his contention that the apartment manager had previously been notified of the lack of lighting on the stairway, it is apparent that the appellant’s knowledge of the alleged hazard was at least equal to that of the appellees. We hold that by electing to use the stairway under these circumstances, he assumed the risk of injury as a matter of law and is thus barred from recovery. Accord Bryan v. Buddy Patrick, Inc., 192 Ga. App. 713 (386 SE2d 374) (1989). We do not interpret the Supreme Court’s decision in Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989), as requiring a contrary conclusion, as the allegedly unsafe condition there was a defective gas heater which was inherently dangerous and which the plaintiff had no alternative to using. “If it is crystal clear as it is in this case (but was not in Thompson [v. CrownoverJ), that the plaintiff is at least equally aware of the specific hazardous condition and could have avoided it but simply failed to exercise ordinary care, the case is clearly subject to summary adjudication. Nothing in Thompson [v. Crownover] imposed an absolute liability upon landlords, nor do we believe the Supreme Court intended to do so.” Hall v. Thompson, supra, 193 Ga. App. at 575.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Neely & Player, William C. Thompson, Julianna Kauderer, Leigh M. Wilco, Patrick K. Whaley, for appellees.


author: Sogniek, Chief Judge. Carley, Judge,

text:
    A90A2107.
    WAREHOUSE HOME FURNISHINGS DISTRIBUTORS, INC. v. DAVENPORT.
    (403 SE2d 850)
   Sogniek, Chief Judge.

Jim Davenport brought suit in Georgia against his former employer, Warehouse Home Furnishings Distributors, Inc. (“Warehouse”), seeking to recover a bonus he alleged was due him. Warehouse scheduled a discovery deposition of Davenport in Georgia. Davenport, who had been a resident of Dublin, Georgia when he was employed by Warehouse, but was a resident of Texas at the time he filed suit, objected to being deposed in Georgia and filed a motion for a protective order. Davenport’s motion was granted by the trial court, which certified its order for immediate review, and we granted Warehouse’s application for interlocutory appeal.

The sole question presented by this appeal is whether a nonresident plaintiff may be compelled to give a deposition in Georgia when Georgia is the forum state. “A person who is to give a deposition may be required to attend an examination: (1) In the county wherein he resides or is employed or transacts his business in person; (2) In any county in which he is served with a subpoena while therein; or (3) At any place which is not more than 30 miles from the county seat of the county wherein the witness resides, is employed, or transacts his business in person.” OCGA § 9-11-45 (b). Although it is true, as argued by appellant, that in Blanton v. Blanton, 259 Ga. 622 (385 SE2d 672) (1989), the Supreme Court refused to compel an out of state defendant to attend a deposition, the Supreme Court held there that OCGA § 9-11-45 (b) means exactly what it says, and, unlike the narrower federal rule, is directed and “intended to protect all those who give depositions.” Id. at 623.

We agree with appellant and the trial court that this seems to create a rather harsh limit on discovery in this case and others like it. However, we are constrained by the language in the statute and the holding in Blanton to affirm the ruling of the trial court.

Judgment affirmed.

McMurray, P. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I reluctantly concur in the majority’s affirmance of the ruling of the trial court. I join the majority in recognizing that this holding creates “a rather harsh limit on discovery in this case and others like it.” However, as does the majority, I must bow to the broad language of the Supreme Court’s majority opinion in Blanton v. Blanton, 259 Ga. 622, 623 (385 SE2d 672) (1989), holding that the legislature “intended to protect all those who give depositions. ...”

Decided February 26, 1991

Rehearing denied March 12, 1991

Arnall, Golden & Gregory, Jeffery M. Smith, J. Randolph Evans, for appellant.

Westmoreland, Patterson & Moseley, Thomas W. Herman, for appellee.

The procedural posture of the case at bar differs from that of Blanton, and in the majority opinion in Blanton, the Supreme Court stated that “[t]he parties concede that there is no Georgia case law which controls this appeal.” Accordingly, I believe that, factually, Blanton could be distinguished because there was existing Georgia case law which would apply to the facts in the present case, but not to those in Blanton. See Millholland v. Oglesby, 114 Ga. App. 745 (1) (152 SE2d 761) (1966) and Bicknell v. CBT Factors Corp., 171 Ga. App. 897 (321 SE2d 383) (1984). More importantly, in Reams v. Composite State Bd. of Med. Examiners, 233 Ga. 742, 743-744 (213 SE2d 640) (1975), the Supreme Court stated: “Ordinarily one who chooses a forum should be required to make himself available for examination in that forum. See Millholland v. Oglesby, [supra]. However, [Mill-holland\ involved a plaintiff residing in Ohio who filed a personal injury suit in Fulton County and thereafter failed to appear in response to a notice of deposition. That case is distinguished from this case by its facts.” (Emphasis supplied.)

However, the above quoted language from Blanton and the strong dissent of Justice Gregory, conceding that the Blanton majority opinion necessitated the overruling of Millholland and Bicknell, lead me to the reluctant conclusion that the Supreme Court intended that the Blanton holding apply to out-of-state plaintiffs as well as out-of-state defendants. This conclusion is mandated notwithstanding Reams’ apparent approval of Millholland because to the extent that Blanton and Reams are inconsistent, we are bound to follow Blanton. Hall v. Hopper, 234 Ga. 625 (216 SE2d 839) (1975). Because of the binding precedential effect of the Supreme Court’s ruling in Blanton, I must concur.


text:
    A90A2265.
    WILLIAMSON et al. v. PALMER et al.
    (404 SE2d 131)
   McMurray, Presiding Judge.

Leland Palmer and Janice Palmer (plaintiffs) filed an application for contempt and a complaint for damages against C. F. Williamson, Jr. and Buddy’s Flower Box, Inc. (defendants). They alleged in Count 1 that defendants are in contempt of a court order requiring them to comply with “the provisions of a restrictive covenant in a contract for the purchase and sale of a going business . . .” and restraining defendants from operating “a florist business within a 15 mile radius of Vidalia, Georgia.” In Count 2, plaintiffs alleged $25,000 in actual damages as a result of defendants’ wilful violation of the covenant not to compete and $25,000 in punitive damages.

The trial court heard plaintiffs’ application for contempt and found defendants to be in contempt, ordering them “to cease and desist the direct or indirect operation of the business known as ‘The Flower Box’ in Vidalia, Georgia. . . .” The issue of damages was later tried before a jury. The evidence revealed the following:

“On July 20, 1982, plaintiffs purchased defendant Williamson’s Vidalia, Georgia, flower shop (‘Buddy’s Florist’). Plaintiffs paid $45,000.00, for the good will],] inventory, fixtures and equipment of said Florist Business [and defendant agreed] not to compete with [plaintiffs] in a Florist Business within a 15-mile radius of Vidalia, Toombs County, Georgia, while [plaintiffs] continue to operate in the Florist Business.”

In “[m]id 1985,” defendant Williamson opened a florist business (“Buddy’s Flower Box”) within “two blocks” of plaintiffs’ flower shop. He operated Buddy’s Flower Box in violation of the covenant not to compete and continued operating the business in violation of a June 30, 1988, court-ordered injunction, directing defendants to comply with the covenant not to compete. In March 1989, defendant Williamson sold Buddy’s Flower Box for $30,000.

As a result of defendant Williamson’s violation of the covenant not to compete, plaintiffs lost regular customers to Buddy’s Flower Box and experienced decreased sales. More specifically, plaintiffs’ sales dropped by $5,663 in the first year of defendants’ operation and by another $6,109 in the second year of defendants’ operation. Plaintiffs’ sales increased in the third and fourth years after defendants began doing business, but these increases were only a fraction of plaintiffs’ projected annual rate of growth. (Plaintiff Leland Palmer testified that he projected an annual growth rate of seven percent for the business and that he based this projection on his experience as a Vidalia businessman and on the business’ past growth rate, i.e., before defendants began competing.) The jury returned a verdict for plaintiffs, awarding $10,000 in general damages, $17,000 “as punitive damages” and $2,597.66 as attorney fees. This appeal followed. Held:

1. In their first enumeration, defendants contend the trial court erred in failing to direct a verdict on the jury’s $10,000 damages award, arguing that “the only evidence offered on these damages was so purely speculative, the jury could not determine lost profits without guesswork.”

At the outset, we note that plaintiffs’ damages are not limited to lost profits, but encompass all damages incident to defendants’ breach of the covenant not to compete. Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 864 (1) (380 SE2d 498). Further, “it is ‘practically impossible [for plaintiffs] to establish the exact amount or anything near the exact amount of [their] damages and loss. . . .’ [Val-dosta Drug Co. v. Mashburn Drug Co., 183 Ga. 471, 477 (188 SE 694).]” Reid v. Bryant, 100 Ga. App. 105, 110 (4), 111 (110 SE2d 571). “ ‘(T)he ability to “estimate damages to a reasonable certainty” is all that is required, (cit.), and mere difficulty in fixing the exact amount will not be an obstacle to [plaintiffs’] award. (Cits.)’ (Emphasis omitted.) Pottinger v. Cross, 170 Ga. App. 647, 648 (1) (317 SE2d 850) (1984).” Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 31 (3), 32 (392 SE2d 717). See Shaw v. Jones, Newton & Co., 133 Ga. 446, 449 (8) (66 SE 240).

In the case sub judice, plaintiffs proved that defendant Williamson violated the covenant not to compete for almost four years, deliberately operating a flower shop within two blocks of plaintiffs’ store. Plaintiffs also proved that their sales dropped by over $11,000 in the first two years of defendants’ operations and that they never achieved their projected annual growth rate after defendants began operating Buddy’s Flower Box. Further, plaintiffs proved that they lost 15 customers to Buddy’s Flower Box; that decreased revenues caused them to borrow additional money for capital growth and that they will be required to compete with the flower shop defendant Williamson started in violation of the covenant not to compete. This evidence, and evidence showing that florist competition in Vidalia has remained about the same since plaintiffs purchased defendant Williamson’s flower shop, is sufficient to sustain the jury’s $10,000 general damages award. Compare Webster v. Purdy, 166 Ga. App. 183 (303 SE2d 521), where there was no evidence to support an award of damages for the breach of a covenant not to compete.

2. In their third enumeration, defendants claim the punitive damages award was unauthorized because plaintiffs’ claim arose from a breach of contract.

“ ‘Generally, punitive damages are not recoverable for breach of contract, even though the breach may be in bad faith. OCGA § 13-6-10; Nestle Co. v. J. H. Ewing & Sons, 153 Ga. App. 328 (265 SE2d 61) (1980).’ Parsells v. Orkin Exterminating Co., 172 Ga. App. 74, 76 (322 SE2d 91) (1984).” Menchio v. Rymer, 179 Ga. App. 852, 854 (3) (348 SE2d 76). “However, [it has been] held that in an action for breach of contract where there are matters of record relating to fraud for the jury’s consideration, exemplary damages can be awarded, as fraud is tortious conduct.” (End note omitted.) Cobb & Eldridge, Ga. Law of Damages (3d ed.), § 4-8, p. 77.

Decided February 25, 1991

Rehearing denied March 12, 1991

Malcolm F. Bryant, Jr., for appellants.

In the case sub judice, plaintiffs did not allege fraud in their complaint, nor did they present evidence to prove fraudulent inducement of contract on the part of defendant Williamson. Plaintiffs’ claim stemmed solely from breach of the covenant not to compete. Consequently, the jury’s verdict for punitive damages must be stricken. See Menchio v. Rymer, 179 Ga. App. 852, 854 (3), supra.

3. It is unnecessary to address defendants’ second enumeration of error in light of the holding in Division 2 of this opinion.

4. Defendants contend in a fourth enumeration that the trial court erred in failing to allow them the right to opening and closing arguments.

“Where a defendant in a civil case offers no evidence he is entitled to the opening and concluding arguments, and the examination of the defendant by his counsel while on the stand after call by the plaintiff for cross-examination on material issues in the case does not constitute the offering of evidence.” (Emphasis supplied.) (End note omitted.) Davis & Shulman, Ga. Prac. & Proc. (5th ed.), § 19-21, p. 405. In the case sub judice, defendants contend they were entitled to opening and closing arguments because the only evidence they presented at trial was defendant Williamson’s testimony after he was called for cross-examination by plaintiffs. This argument is without merit.

The record shows that defendant Williamson was not only questioned by defendants’ attorney after he was called for cross-examination by plaintiffs’ attorney, but it also shows that defendant Williamson testified on defendants’ behalf after plaintiffs rested their case. Consequently, defendants presented evidence on their own behalf and were therefore not entitled to opening and closing arguments. See Davis & Shulman, Ga. Prac. & Proc., supra. The trial court did not err in refusing defendants the opening and closing arguments.

Judgment affirmed in part and reversed in part.

Sognier, C. J., concurs. Carley, J., concurs in the judgment only.

M. Francis Stubbs, for appellees.