text:
    A89A1035.
    ANSA MUFFLERS CORPORATION et al. v. LAW.
    (383 SE2d 574)
   Birdsong, Judge.

We granted this appeal by the employer from the order of the superior court remanding this claim to the State Board of Workers’ Compensation for the limited purpose of receiving evidence and making findings of fact. The central issue is whether the employee was in the course of his employment at the time he was injured in a traffic accident.

A hearing was conducted by an administrative law judge (ALJ), evidence was presented on the issue, and the ALJ found as a matter of fact that although the accident happened on the same road which would be used by the employee both to go home for lunch and to go on his employer’s business, the injury was not incurred in the course of employment because the employee was, in fact, going home for lunch at the time of the accident and the employer’s business was not planned until after lunch. The employee appealed to the State Board of Workers’ Compensation and the award of the ALJ was adopted by the board.

The employee appealed to the superior court pursuant to OCGA § 34-9-105 (b). The superior court concluded that there was insufficient evidence whether the employee had deviated from the course of his employment at the time of his injury, and then later found that no evidence had been introduced nor any finding made on the issue of deviation. Concluding that the deviation question was a material issue, the trial court remanded the case to the board to take evidence and make findings of fact. Held:

Virtually the entire hearing before the ALJ was devoted to the issue whether the employee was in the course of his employer’s business at the time of his accident. This issue necessarily includes the question whether there was a deviation. While no specific finding was made using the word “deviation,” it is clear this issue was considered because the ALJ found that the employee was not in the course of his employer’s business at the time of the accident. This finding is supported by evidence in the record. The employee testified that he was going home for lunch in his personal car, that he was not on an errand for his employer at the time, and that he was not going on business until after lunch. Further, he had no definite appointments set up for this business. Moreover, he testified that as the operations manager of his employer’s business he could eat lunch whenever he wanted.

While there may be other evidence in the record which might support another conclusion, if there is any evidence supporting the finding of fact by the board, the claim may not be remanded to secure evidence sufficient to satisfy the superior court. When sitting as an appellate body on these cases, the superior court is bound by the “any evidence” standard of review and is not authorized to substitute its judgment for the board’s on the weight or sufficiency of the evidence. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410-411 (224 SE2d 65). This is not to say that a claim may never be remanded to the board, e.g., General Motors Corp. v. Peeples, 138 Ga. App. 705 (227 SE2d 472), but a remand is not proper when there is some evidence in the record supporting the findings of fact by the ALJ or the board. Howard Sheppard, Inc. v. McGowan, supra; General Fire &c. Co. v. Bellflower, 123 Ga. App. 864, 866 (182 SE2d 678). Accordingly, the remand of the case was error and must be reversed.

Decided May 31, 1989

Rehearing denied June 21, 1989

Anderson, Walker & Reichert, Elton L. Wall, R. Harold McCard, Jr., for appellants.

Thomas M. Butler, for appellee.

Judgment reversed, with directions that the trial court enter judgment affirming the award of the State Board of Workers’ Compensation.

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


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    77370.
    THE STATE v. HUGHES.
    (384 SE2d 682)
   Carley, Chief Judge.

In State v. Hughes, 189 Ga. App. 671 (377 SE2d 192) (1988), this Court reversed the judgment of the trial court which had suppressed conversations between Hughes and the police and all references to field sobriety tests given to Hughes prior to formal arrest. The Supreme Court granted the writ of certiorari and in Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853) (1989), the judgment of this Court was affirmed in part and reversed in part. The Supreme Court held that “the trial court correctly suppressed reference to conversations between Hughes and the police.” Hughes v. State, supra. However, the Supreme Court affirmed this Court’s reversal of the trial court’s suppression order with regard to “the alphabet test and the physical dexterity tests.” Hughes v. State, supra. Accordingly, the prior judgment of this Court is vacated, the judgment of the Supreme Court is made the judgment of this Court and the judgment of the trial court is affirmed in part and reversed in part.

Decided June 21, 1989.

Patrick H. Head, Solicitor, Beverly M. Hartung, Assistant Solicitor, for appellant.

Melvin S. Nash, Mary A. Stearns, for appellee.

Judgment affirmed in part and reversed in part.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


author: Benham, Judge.

text:
    A89A0088.
    DAVIS v. THE STATE.
    (383 SE2d 615)
   Benham, Judge.

Appellant was convicted of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)) and theft by shoplifting (OCGA § 16-8-14).

1. The State has filed a motion to dismiss the appeal on the ground that appellant did not timely file his notice of appeal. OCGA § 5-6-38 (a). Appellant was granted an out-of-time appeal in an order signed by the trial court on March 18, 1988, and filed in the office of the clerk of the superior court on September 1, 1988. Appellant filed his notice of appeal on September 2, 1988.

A notice of appeal filed within 30 days of the filing of the order allowing an out-of-time appeal is timely. Thompson v. State, 258 Ga. 816, fn. 1 (375 SE2d 219) (1989). The State’s motion to dismiss is denied.

2. Appellant questions the sufficiency of the evidence. The victim of the aggravated assault, a grocery store security guard, identified appellant as the man he saw aid a woman in taking 14 cartons of cigarettes and concealing them in a purse and in a net sewn to the underside of the woman’s dress. The guard also saw appellant take a pack of cigarettes from a display rack, open the pack, remove one cigarette and light it, and place the rest of the pack in his pocket. Appellant and his companion/co-defendant then bypassed the cash registers and were headed for the exit when the security guard and assistant store manager confronted them. The security guard scuffled with appellant and chased him into the parking lot, where appellant stabbed the security guard in the chest and upper legs. The assistant store manager and a store customer identified appellant as the man who scuffled with the store security guard, and although neither saw appellant stab the guard, both witnesses stated that the security guard was bleeding after his encounter with appellant. The security guard noted the tag number of the car in which appellant drove off. The car with that tag number was found to have been recently purchased by appellant and, when found, contained a carton of cigarettes bearing the grocery store’s stamp. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of aggravated assault and shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-8-14 (a); Walker v. State, 176 Ga. App. 783 (338 SE2d 36) (1985); OCGA § 16-5-21 (a) (2); Harris v. State, 257 Ga. 385 (1) (359 SE2d 675) (1987).

3. Appellant contends the trial court committed reversible error when it allowed an eleven-member jury to deliberate on appellant’s case without having determined whether appellant personally, knowingly, voluntarily, and intelligently agreed to waive his right to be tried by a jury of twelve. 1983 Ga. Const., Art. I, Sec. I, Par. XL

After the jury had deliberated for 25-30 minutes, the trial court received a note that one juror believed he could not be fair and impartial due to a previous experience. Trial counsel conferred with appellant, made a motion for mistrial which was denied, and then elected to proceed with eleven jurors.

“[WJhile it may be a better practice, it is not necessary for an accused to personally waive his right to a jury of twelve and agree to be tried by a jury of less than twelve. Counsel for the accused may validly waive this right for him if (1) the waiver is made, without objection, in the accused’s presence or (2) the accused otherwise acquiesces in the waiver.” Hudson v. State, 250 Ga. 479 (3a) (299 SE2d 531) (1983). Appellant’s counsel having waived appellant’s right to be tried by a jury of twelve in appellant’s presence without objection from appellant, the trial court committed no error in accepting the waiver as that of appellant. Hudson v. State, supra; Weeks v. State, 187 Ga. App. 307 (2) (370 SE2d 344) (1988).

4. Appellant also contends the trial court erred in denying his motion for mistrial made after the trial court disqualified the juror. “There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.] ” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). The prosecution effectively carried its burden when the juror stated that his inability to be impartial stemmed from his belief that he had been wrongfully convicted of armed robbery a quarter-century ago and had been incarcerated as a result. He told the trial court and the attorneys that he had made known his prejudice to his fellow jurors. The prejudice exhibited by the juror was in appellant’s favor. Compare Lamons v. State, supra; Castro v. State, 186 Ga. App. 248 (2) (367 SE2d 42) (1988); Moore v. State, 184 Ga. App. 524 (1) (362 SE2d 76) (1987). The trial court did not err in denying appellant’s motion.

Decided June 21, 1989.

A. Nevell Owens, for appellant.

Lewis. R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Charles T. Shean III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0209.
    HOWARD et al. v. APAC-GEORGIA, INC.
    (383 SE2d 617)
   McMurray, Presiding Judge.

Plaintiffs, Bobby Jack Howard and Janet L. Howard, husband and wife, brought suit against Larry Donnell Davis, Carey Dean Easier and APAC-Georgia, Inc. (“APAC”) in the State Court of Fulton County. It was alleged that Mr. Howard was injured in an automobile collision on October 21, 1987; that Mr. Howard’s injuries stemmed from the negligence of Messrs. Davis and Easier; and that defendants were liable to plaintiffs for pain and suffering and loss of consortium damages.

The liability of APAC was predicated on the doctrine of respon-deat superior. In this regard, it was alleged that at the time of the collision, Mr. Davis was an agent of APAC and that he was acting within the scope of his employment.

Defendants answered, denying the material allegations of the complaint. Additionally, they asserted that venue was improper in Fulton County.

A motion to dismiss the complaint for failure to state a claim was filed by APAC. In support of its motion, APAC submitted the affidavit of John F. Bates, Division President of Southern Roadbuilders Division of APAC-Georgia, Inc. He averred that on the day of the collision, Mr. Davis was an employee of Southern Roadbuilders, Inc., a Georgia corporation with a registered office in Richmond County; that Mr. Davis was never employed by APAC; that on January 25, 1988, APAC purchased the assets and assumed some of the liabilities of Southern Roadbuilders, Inc.; and that APAC did not assume any liabilities stemming from the collision which is the subject of this suit.

Via answers to interrogatories, APAC demonstrated that Southern Roadbuilders, Inc., was fully liquidated and its name was changed to Roadbuilders Corporation; that that entity is waiting to be dissolved; that the officers, directors and shareholders (which included John F. Bates) of Southern Roadbuilders, Inc., and Roadbuilders Corporation were the same; and that none of the shareholders, officers or directors of those entities is a shareholder, officer or director of APAC. (The answers to interrogatories were provided by APAC’s counsel. They were not verified. Plaintiffs accepted the answers, however, relying upon them in support of a motion for joinder and in opposing APAC’s motion to dismiss. They will, therefore, be considered here. See Woodson v. Burton, 241 Ga. 130 (243 SE2d 885).)

After hearing argument and considering “the entire file,” the trial court granted APAC’s motion to dismiss the complaint. (In so doing, the trial court treated APAC’s motion to dismiss as a motion for summary judgment. See OCGA § 9-11-12 (b).) Because APAC was the only Fulton County defendant, the trial court transferred plaintiffs’ claims against the remaining defendants to the State Court of Richmond County. Plaintiffs appealed. Held:

“Generally, a purchasing corporation does not assume the liabilities of the seller, unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation. Fletcher, Cyclopedia of the Law of Private Corporations, § 7122; see 66 ALR3d 824, 827.” Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726).

Plaintiffs do not contend that the sale was for an inadequate consideration, that they were defrauded, or that APAC is a mere continuation of Southern Roadbuilders, Inc. Rather, plaintiffs assert the trial court erred in granting APAC’s motion to dismiss because, in effect, APAC merged with Southern Roadbuilders, Inc. APAC takes the position, on the other hand, that the trial court properly granted its motion to dismiss because it demonstrated it did not merge with Southern Roadbuilders, Inc. as a matter of law.

A de facto merger occurs when one corporation is absorbed into another. See OCGA § 14-2-1101; Kemos, Inc. v. Bader, 545 F2d 913 (5th Cir. 1977) (applying Georgia law). Did APAC demonstrate that Southern Roadbuilders, Inc., was not absorbed by APAC as a matter of law? Yes, it did.

In order to find a de facto merger, four elements must be present: “(1) There is continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations. (2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation. (3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible. (4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation. [Cit.]” Bud Antle, Inc. v. Eastern Foods, 758 F2d 1451, 1457 (11th Cir. 1985).

Decided June 21, 1989.

McNally, Fox, Mahler & Cameron, Randall K. Coggin, for appellants.

Thomas S. Carlock, Bovis, Kyle & Burch, W. Bruce Barrickman, for appellee.

In the case sub judice, APAC demonstrated that the shareholders of Southern Roadbuilders, Inc., have no shareholder interest in APAC. “Several courts have held that ‘(a) consolidation or merger always involves a transfer of the assets and business of one corporation to another in exchange for its securities.’ Good v. Lackawanna Leather Co., 96 N.J. Super. 439, 233 A.2d 201, 208 (Ch. Div. 1967). See, e.g., Leannais v. Cincinnati, Inc., 565 F.2d 437 (7th Cir. 1977); Travis v. Harris Corp., 565 F.2d 443 (7th Cir. 1977). At the very least, there must be some sort of continuation of the stockholders’ ownership interests. See Atlas Tool Co., Inc. v. C.I.R., 614 F.2d 860, 871 (3d Cir.), cert. denied, 449 U. S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). The reason for this requirement is that corporate liability adheres not to the nature of the business enterprise but to the corporate entity itself. Fehl v. S.W.C. Corp., 433 F.Supp. 939, 945 (D. Del. 1977). The corporate entity and its shareholders ultimately are responsible for the disposition of the corporation’s assets and the payment of its debts. Travis, 565 F.2d at 447. Even if the corporation sells to another corporation its entire business operation and all its assets, in exchange for some consideration other than stock, the two corporate entities remain distinct and intact. The corporate entities have not merged, and each is liable for its own debts, absent fraud or one of the other exceptions listed above.” Bud Antle, Inc. v. Eastern Foods, Inc., supra at 1458.

Inasmuch as APAC demonstrated an absence of shareholder continuity between Southern Roadbuilders, Inc., and APAC, it cannot be said that there was a de facto merger between those corporate entities. It follows that the trial court correctly granted APAC’s motion for summary judgment and transferred plaintiff’s claims against the remaining defendants to another forum.

Judgment affirmed.

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


text:
    A89A0216.
    CARSON v. THE STATE.
    (383 SE2d 619)
   Benham, Judge.

Appellant was found guilty of raping his niece. On appeal, he takes issue with three evidentiary rulings made by the trial court.

1. Appellant contends the trial court erred in overruling his objection to the admission of scientific test results which were not reported to appellant despite his timely request under OCGA § 17-7-211 (b). In response to his request, the State timely provided appellant with a crime lab report that stated, “Microscopic examination of the smears [taken from the victim’s vagina and cervix] reveals the presence of spermatozoa.” At trial, after the forensic serologist from the Crime Lab testified that the slides were positive for spermatozoa, the assistant district attorney asked the witness about the amount of spermatozoa present. Appellant’s counsel objected, contending that the witness’ response was inadmissible since the scientific test results furnished to appellant stated only that sperm was present. The witness was permitted to testify that on the “in-house” grading system of 0 to 4, the vaginal smear was graded as a “two plus” and the cervical smear a “three plus-four.”

Relying on Durden v. State, 187 Ga. App. 154 (1) (369 SE2d 764) (1988), appellant maintains that only the testimony establishing that sperm were present was admissible, and that the State should not have been allowed to quantify that result through expert testimony. We do not find Durden to be controlling.

In Durden and its progeny (Camarata v. State, 188 Ga. App. 41 (371 SE2d 885) (1988), and Box v. State, 187 Ga. App. 260 (370 SE2d 28) (1988)), the defendants were charged with driving under the influence of alcohol and/or drugs, a crime that has as an essential element the effect an amount of alcohol or drug has upon one’s faculties. Each defendant was supplied with a copy of a scientific report stating that tests had indicated the presence of marijuana or cocaine in samples of the defendant’s blood or urine. At each trial, the forensic witness quantified the test results, giving the numerical findings that resulted in the conclusion that drugs were present in the blood or urine sample, and then testified to the functional disability brought about by the presence of that quantity of drug. This court reversed the Dur-den, Box, and Camarata convictions because the State had failed to provide the defendants with the actual empirical test results that an expert testified would cause impairment in one’s ability to drive. In other words, the defendants received reports confirming the presence of drugs in their bodies; however, the expert trial witness then told how much drug was in each body and related that amount to degree of impairment, a necessary element of the crime. See OCGA § 40-6-391 (a) (2, 3).

Decided June 21, 1989.

Brett W. Ladd, for appellant.

Darrell E. Wilson, District Attorney, Kimberly L. Schwartz, Assistant District Attorney, for appellee.

In the case at bar, appellant was charged with rape, Neither the presence nor the amount of semen in a victim’s body is an element of the crime. Skipper v. State, 257 Ga. 802 (1b) (364 SE2d 835) (1988). By giving a numerical value to the amount of sperm found in the vaginal and cervical smears, the witness did not provide data necessary to convict appellant of rape. While the State should limit its examination of its forensic witness to the material contained in the scientific report given to the defendant, we cannot say that the deviation from that practice in the case at bar was a violation of OCGA § 17-7-211.

2. On cross-examination, appellant’s counsel questioned the victim about her employment history. He then called the victim’s former employers as witnesses and attempted to impeach the victim by disproving her testimony concerning her job employment history. “[A] witness may not be impeached because of a discrepancy as to a wholly immaterial matter. [Cit.] Whether the victim had [quit or been fired from several jobs] is wholly immaterial to the issue of [appellant’s] guilt of the [crime] charged.” Thomas v. State, 168 Ga. App. 587 (1) (309 SE2d 881) (1983). See also Gilbert v. State, 159 Ga. App. 326 (2) (283 SE2d 361) (1981). The trial court did not err in making its ruling.

3. During her testimony, the victim stated that appellant’s attorney had visited her in her home and questioned her about the alleged rape. She stated that the attorney left when the victim’s father tele-phonically requested him to do so. Appellant objected to the relevancy of the testimony and, on appeal, maintains the trial court erred in permitting the testimony. “Our appellate courts have consistently adhered to the rule that an objection to the admission of evidence on the sole ground that it is ‘irrelevant’ is insufficient to show error requiring reversal. [Cits.]” Jefferson v. State, 157 Ga. App. 324 (2) (277 SE2d 317) (1981).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0332.
    OGLETREE et al. v. BROKERS SOUTH, INC.
    (383 SE2d 900)
   Benham, Judge.

This is an appeal from the grant of a directed verdict in favor of appellee Brokers South, Inc., (Brokers) in a conversion action appellants filed against Brokers. In November 1986, appellant Joann Ogle-tree purchased for her son, appellant Jonathan Ogletree, a 1982 Grand Prix automobile from Brokers. On or about February 13, 1987, the vehicle became disabled on the highway, and appellant Mr. Ogle-tree left it there. When he returned to retrieve it, he discovered it had been towed away and impounded by the Georgia State Patrol for safety reasons. On February 16, appellants discovered the location of the vehicle and in an ensuing conversation with Brokers, the parties agreed that Brokers would tow the vehicle from the impound lot to its lot and that appellants would redeem the vehicle from Brokers on February 18 by paying the $95 impound and towing charges due plus the $50 installment payment balance which had been due on February 13. However, when Ms. Ogletree called appellee on February 18, she was told that the car had been sold. It was undisputed that Brokers did not give the Ogletrees notice of its intent to sell the vehicle. The Ogletrees sued appellee alleging conversion and violation of OCGA §§ 10-1-36; 10-1-38; 11-9-504; and 11-9-506. They sought damages under OCGA § 10-1-38 (c) and OCGA § 11-9-507, and for the alleged conversion. At the close of appellants’ evidence, the trial court granted appellee’s motion for a directed verdict, thereby disposing of all the claims, and this appeal resulted.

1. Appellants contend that the trial court erred in granting the motion for directed verdict against them. We do not completely agree with that contention. Although appellants proved that the seller failed to notify them of the car sale and their redemption rights as stated in OCGA § 10-1-36, there was no proof that the violation was wilful. OCGA § 10-1-38 (c) does not provide a civil remedy for non-wilful violations of the relevant statutory provisions, so as to that claim a directed verdict was appropriate. See Vickery v. Mobile Home Indus., 171 Ga. App. 566 (320 SE2d 633) (1984). A directed verdict on the conversion claim was also appropriate. It was undisputed that ap-pellee had a statutory and contractual right to repossess the vehicle upon the admitted default on the installment payments, and so, even without notice to appellants, the repossession was not a conversion of the vehicle. Nor did the private sale of the vehicle constitute a conversion, even if the terms of the sale were not commercially reasonable. Under this fact situation, appellants’ remedy was to seek statutory damages under the Commercial Code. Thurmond v. Elliott Fin. Co., 141 Ga. App. 574, 576 (234 SE2d 153) (1977). Appellants also failed to prove a conversion of the $200 worth of clothing in the vehicle at the time of its repossession, since they did not show they had demanded that appellee return the items, as provided for in paragraph (2) of the retail installment sales contract, and that their demand had not been met. The trial court properly directed a verdict against appellants on their conversion claim.

However, the evidence in support of the Commercial Code claim in the Ogletrees’ suit was sufficient to withstand appellee’s motion for a directed verdict. OCGA § 11-9-507 (1) provides that if disposition of the secured property has occurred, the debtor has a right to recover from the secured party any loss caused by a failure to comply with the Code provisions. “If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus 10 percent of the principal amount of the debt or the time price differential plus 10 percent of the cash price.” Id. While the Commercial Code does not prohibit a post-repossession sale without notice, the debtor can recover for the loss caused by an inadequate sale price. Clark v. Gen. Motors Acceptance Corp., 185 Ga. App. 130 (2) (363 SE2d 813) (1987). Even if the consumer debtor does not prove a specific monetary loss but proves that the creditor did not comply with the statute, the debtor is entitled to recover the finance charge plus 10 percent of the principal amount of the contract if he or she proves those figures. See Georgia Central &c. Union v. Coleman, 155 Ga. App. 547 (2) (271 SE2d 681) (1980). “[I]f a creditor fails to give notice or conducts an unreasonable sale, the presumption is raised that the value of the collateral is equal to the indebtedness. To overcome this presumption, the creditor must present evidence of the fair and reasonable value of the collateral and the evidence must show that such value was less than the debt. [Cit.]. . . . [I]f a creditor has conducted a commercially unreasonable sale, the debtor may suffer a loss, in that he will not receive as much of a credit from the sale of the collateral as he should have. In such an instance the debtor is entitled to be awarded an additional credit equalling the difference between the fair market value of the collateral and the amount for which the collateral was sold. [Cit.]. . . . [I]f the debtor can show that he or she intended to redeem the collateral but was prohibited from doing so by the creditor’s lack of notice, the debtor could possibly recover damages for the loss of use of the collateral. In this regard . . . [the] damages need not be calculable with mathematical accuracy. [Cit.]” Emmons v. Burkett, 256 Ga. 855 (2) (353 SE2d 908) (1987).

In the case before us, appellants proved that this was a consumer credit transaction; that appellee had sold the vehicle at a private sale without providing the required statutory notice and opportunity to redeem; that they were prepared to redeem the vehicle on the date and for the sum orally agreed upon, but that appellee had sold the vehicle before appellants could pay the money; that appellee sold the vehicle for $500 in February 1987, although it had paid $2,750 for the vehicle and had sold it to appellants in November 1986, for $7,982.25, which included a finance charge of $634.75; and that appellants had been without the use of the vehicle from the date of repossession to the date of trial. Applying these facts to the law as set out above, we conclude that appellants met their burden of proof on the statutory claim under OCGA § 11-9-507 (1) and the trial court erred in granting a motion for directed verdict against them on that claim. In the absence of appellee’s proof that proper notice was provided and that the sale was commercially reasonable (see Vines v. Citizens Trust Bank, 146 Ga. App. 845 (4) (247 SE2d 528) (1978)), appellants would be entitled to at least the $634.75 finance charge plus 10 percent of $7,347.50, for a total of $1,369.50. Georgia &c. Credit Union v. Coleman, supra at 550. If appellants prove an amount of damages greater than the statutory minimum amount, they could recover that greater amount. See Emmons v. Burkett, supra.

2. Appellants complain that the trial court erred in refusing to allow the introduction of evidence of vehicle improvements and repairs made prior to the repossession and sale. Such evidence would not be admissible to show that appellants were sold “a bad car” as was contended at trial, but it would be admissible to show that the vehicle’s value had appreciated, or at least had not significantly depreciated, from the date appellants had purchased it. That information would be relevant to the issue of the reasonableness of the sale and appellants’ resulting damages. See Emmons v. Burkett, supra. Therefore, the evidence was admissible.

3. The trial court also refused to allow appellant Ms. Ogletree to testify about the cost she incurred to rent a vehicle to replace the one repossessed. The evidence is admissible to prove “any loss caused by a failure to comply with the provisions of this part [of the Code].” OCGA § 11-9-507 (1). In this case, the loss includes costs incurred for the loss of use of the vehicle, since appellants showed that they intended to redeem the collateral but were prohibited from doing so by the creditor’s lack of notice. Emmons v. Burkett, supra, fn. 3.

4. After appellee intimated that appellants had not acquired insurance coverage for their vehicle, appellants sought to introduce into evidence a printout of a contract information sheet from a finance company to prove that appellant had acquired insurance for the vehicle. The trial court refused to admit the document into evidence. A copy of the document was not included in the record on appeal and the trial transcript shows that Ms. Ogletree testified that she had purchased insurance. There being competent evidence of the insurance purchase, we conclude that the refusal to admit the document was not reversible error. See Ray v. Standard Fire Ins. Co., 168 Ga. App. 116 (1) (308 SE2d 221) (1983).

Judgment affirmed in part and reversed in part.

Deen, P. J., and Birdsong, J., concur.

Decided June 21, 1989.

Victoria J. Hoffman, for appellants.

Hurt, Richardson, Garner, Todd & Cadenhead, E. Lewis Hansen, William W. Calhoun, Michael T. Nations, for appellee.


text:
    A89A0440.
    RAWL v. THE STATE.
    (383 SE2d 903)
   Benham, Judge.

Appellant was convicted of driving under the influence of alcohol. On appeal, he questions the sufficiency of the evidence and other rulings against him. Finding no error, we affirm the judgment.

1. Early in the morning on New Year’s Day 1987, appellant was driving his vehicle when he was stopped by a police officer for traveling 68 mph in a 50 mph zone. The officer, a member of the DUI Task Force, testified that appellant had crossed over the centerline twice before he was stopped, and that when appellant exited his vehicle the officer smelled a strong odor of alcoholic beverage on him; that at first appellant refused to take a field sobriety test; and that when he did consent and took the tests, he missed touching his nose with his right hand and was extremely hesitant when he was asked to attempt the same maneuver with his left hand. The officer also testified that he asked appellant to recite the alphabet and appellant hesitated while doing so, and omitted the letters O, S, and T. Appellant then refused to take the alkosensor test. The officer said that by that time it was apparent to him that appellant had had too much to drink. Appellant was placed under arrest for DUI and was read the Georgia Implied Consent Warning (OCGA § 40-5-55). He refused to submit to any chemical test of his breath after being read the warning. Appellant admitted that he had had a drink at dinner, and that after dinner he had attended a New Year’s Eve party at which he had consumed champagne at midnight, some two hours before the officer stopped him. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of being a less safe driver because of being under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Fredericks v. State, 176 Ga. App. 40 (1) (335 SE2d 154) (1985).

2. Appellant complains that the field sobriety tests he took violated his federal and state constitutional rights. He argues that the tests were not reliable and were not based on scientific techniques; that they had no safeguards with regard to the results as provided for in OCGA § 40-6-392; and that the introduction of the test results prejudiced the jury against him. We find no error. There is no statutory scheme covering field sobriety tests and other initial screening tests, but lack of such a scheme does not prevent the admission of field sobriety test results into evidence at trial. See Turrentine v. State, 176 Ga. App. 145 (1) (335 SE2d 630) (1985); Fredericks v. State, supra.

Decided June 21, 1989.

John J. Ossick, Jr., for appellant.

Richard H. Taylor, Solicitor, for appellee.

3. We find no merit in appellant’s claim that he was not afforded his right to an alternate test under OCGA § 40-6-392. It is undisputed that appellant refused to submit to the State breath test that the officer wanted him to take. “The statutory right to an alternate test by a person of the defendant’s own choosing does not attach until the State has performed its test. [Cit.] Since appellant refused to take a test administered by the State he had no right to an alternate test. . . .” Modlin v. State, 176 Ga. App. 83 (335 SE2d 312) (1985). Appellant’s contention that his refusal to take the State breath test should not have been introduced into evidence also fails, as it is based on his contention that he was denied his right to the alternate test. A defendant’s refusal to take a blood alcohol test is relevant and admissible. OCGA § 40-6-392 (c); Wyatt v. State, 179 Ga. App. 327 (1) (346 SE2d 387) (1986).

4. Contrary to appellant’s assertion there is no right to have counsel present when a person is asked to submit to a chemical test and when he is asked to comply with the implied consent law. Cogdill v. Dept. of Public Safety, 135 Ga. App. 339 (2) (217 SE2d 502) (1975).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0500.
    CASTLEBERRY et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (383 SE2d 621)
   Carley, Chief Judge.

Appellee-plaintiff insurer filed a petition seeking a declaratory judgment to the effect that it had no obligation to defend appellant-defendant Cleveland Castleberry in a suit brought against him by appellant-defendant Joseph E. Craigmiles III or to pay any portion of a judgment that might be rendered against him therein. According to appellee’s petition, its automobile liability insurance policy A-677778 was in full force and effect at the time of the incident giving rise to the underlying lawsuit between appellants Castleberry and Craigmiles. A copy of that policy was attached to appellee’s petition. The named insured in the attached policy was appellant-defendant Nancy D. Spradley. The petition further alleged that the incident precipitating the underlying lawsuit was excluded from coverage under the terms of the attached policy. In their answers, appellants admitted that there was no coverage under the policy attached to ap-pellee’s petition, but they hinted at the existence of coverage under another policy that had been purchased by appellant Spradley.

Decided June 21, 1989.

May & Horkan, Dwight H. May, for appellants.

F. Thomas Young, William A. Turner, Jr., Charles F. Johnson, for appellee.

The trial court granted judgment on the pleadings in favor of ap-pellee, stating that, “in so ruling, [i]t in no way decide[d] or inferred] what, if any, claim [appellant] Spradley may have against [appellee] or its agents other than under the policy attached to the [appellee’s] complaint. . . . [T]he court expressly declare [d] that [appellee] has no obligation to defend [appellants] in Craigmiles v. Castleberry or to pay any portion of any judgment rendered in favor of the plaintiff in that action under the terms and provisions of the policy of insurance attached to the complaint in this action.” Appellants appeal from the trial court’s grant of appellee’s motion for judgment on the pleadings.

“For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. [Cit.]” Hinson v. Roberts, 256 Ga. 396, 397 (1) (349 SE2d 454) (1986). Under appellee’s petition, the relevant issue was the existence of coverage under a specific policy. In their answers, appellants admitted that the described policy excluded coverage. Accordingly, the trial court correctly granted judgment on the pleadings in favor of appellee. See generally Nelson v. Fulton County Bank, 147 Ga. App. 98, 99 (1) (248 SE2d 173) (1978). The existence of coverage under any other policy was irrelevant and, as worded, the trial court’s declaratory judgment is strictly and expressly limited to the specific policy attached to appellee’s petition. Thus, appellants can pursue any claim against appellee under any other policy, the existence of which was alluded to in the answers.

Judgment affirmed.

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


text:
    A89A0611.
    TILLETT et al. v. PATEL et al.
    (383 SE2d 622)
   Benham, Judge.

Appellant Tillett’s son drowned in the swimming pool of a motel owned by appellees. Acting individually and as next friend of the other appellant, her granddaughter, the decedent’s child, Ms. Tillett brought suit against appellees. Both appellants are residents of Virginia, but Ms. Tillett hired Georgia counsel to prosecute the suit since appellees are Georgia residents and the death occurred in Georgia. After a settlement was reached, the Georgia attorneys hired by Ms. Tillett moved to have the amount of recovery established by the settlement paid into the court so that their attorney fees could be paid. Virginia counsel for Ms. Tillett responded to the motion, seeking to avoid payment of the attorney fees agreed to by Ms. Tillett in the contract by which she initially retained Georgia counsel. Following a hearing on the motion, a hearing not attended by Ms. Tillett’s Virginia counsel although notice was given, the trial court approved the settlement, entered judgment for the minor plaintiff, directed payment of the judgment into the registry of the court, and awarded appellants’ Georgia counsel attorney fees in the amount of one-half the judgment plus one-half of counsel’s expenses. This appeal is from that order.

1. In their first enumeration of error, appellants contend that the attorney fee contract was void because Ms. Tillett had not been appointed guardian of her granddaughter and, therefore, had no authority to bind the minor plaintiff. We disagree.

“The authority of one who acts as next friend for a minor in a judicial proceeding is derived from the permission of the court to act in that capacity. No particular person is required to act, nor is it necessary that the person so acting be appointed by formal order. The court, in allowing the case to proceed, is presumed to have approved the appearance of the person acting as next friend.” Mize v. Harber, 189 Ga. 737 (7) (8 SE2d 1) (1940).

“A next friend cannot unreasonably surrender a minor’s substantial rights. [Cit.] But ‘[t]he next friend must not be denied such necessary incidental powers as will facilitate the fair adjudication of the infant’s rights. This is necessary to their proper vindication, both in prosecution and defense. . . .’ [Cit.]” Phillips v. Meadow Garden Hosp., 139 Ga. App. 541 (2) (228 SE2d 714) (1976). Although the Phillips court was dealing with a compromise to accept a verdict by ten of twelve jurors, the principle applies equally to the situation in this case. Without authority to engage attorneys, one acting as next friend would be unable to proceed with a prosecution of the minor’s rights.

The cases appellants cite for limitations on the rights of next friends are distinguishable. In Thomas v. Holt, 209 Ga. 133 (70 SE2d 595) (1952), the court was dealing with court-ordered child support, and held that the custodial parent could not enter into a contingency fee contract for the recovery of arrearages. The holding in that case was dependent on the special nature of child support, which is not involved in the present case.

Decided June 21, 1989.

Douglas W. Alexander, for appellants.

David T. Whitworth, A. Ed Lane, Smith & Carrington, Will Ed Smith, Billy W. Walker, W. McMillan Walker, for appellees.

In both Betts v. Hancock, 27 Ga. App. 63 (107 SE 377) (1921), and Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 (191 SE2d 324) (1972), the holding was that the acts of the next friend must be approved by the court in order to be binding on the minor. In the present case, the requirements of those cases were met since the trial court here did approve the settlement and the attorney fee arrangement.

We find no merit in appellant’s first enumeration of error.

2. Without citation of authority, appellants assert that the trial court should have considered the law of Virginia because the minor appellant is a resident of that state. However, the contract at issue here, whereby appellants’ Georgia counsel agreed to prosecute a wrongful death action in the courts of Georgia in exchange for a contingency fee, was accepted in Georgia and was to be performed in Georgia. We are aware of no rule of law which would require the application of Virginia law to the issues involved here, and find no merit in appellants’ second enumeration of error.

3. Appellants’ final two enumerations concern the sufficiency of the evidence in the record to support the judgment. Specifically, appellants contend that their Georgia counsel did not put on evidence that the contingency fee was reasonable or evidence supporting their claim for expenses. However, at the hearing which appellants’ Virginia counsel declined to attend, Georgia counsel stated in their place matters going to the reasonableness of the fee and the amount expended by them on appellants’ behalf. While appellants’ new counsel might have demanded stricter proof had they been present, it cannot be said that there was no evidence supporting the trial court’s approval of the settlement and entry of judgment, including the order disbursing attorney fees to appellants’ Georgia counsel. It can be said, however, that no evidence was offered that the attorney fee claim was unreasonable or that the expenses were not incurred. Under those circumstances, we find no error in the trial court’s order.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Birdsong, Judge.

text:
    A89A0635.
    KIGHT v. BEHRINGER.
    (383 SE2d 624)
   Birdsong, Judge.

On September 23, 1987, Dale Behringer filed a complaint to revive and enforce six dormant judgments for back child support. The earliest date of dormancy of any judgment was alleged to be October 12, 1984, the others becoming dormant on December 8, 1984; April 13, 1985; August 18, 1985; February 16, 1986; and June 18, 1986. The judgments were made a part of the complaint.

Defendant Right pro se answered with a general denial. The plaintiff’s attorney then filed a motion for summary judgment, attaching her affidavit stating that to her knowledge defendant Right was one and the same person against whom she had secured the judgments in superior court, and that he had refused to pay them and was presently indebted therefor in the total amount.

Defendant Right replied to plaintiff’s motion by letter filed in court, giving “the same . . . response as I did in my reply [formal answer] of October 6,1987, concerning the same. ... I am requesting that [this] action be drawn to a conclusion within a 10 day period, with judgment in favor of Defendant . . . [by] requesting all judgments to be satisfied in both Toombs and Emanuel County within the 10 day period. ... If [the] judgments are not satisfied within the 10 day period, I am requesting a written reply as to why not. Sincerely, [Signature] Donald D. Right.” Right lost by summary judgment to the plaintiff and now appeals. Held:

The plaintiff proved her dormant judgments in her complaint to revive them, and the defendant answered naught, except to deny. His answer did not refute the plaintiff’s prima facie showing of indebtedness.

By further pleading, affidavit and argument, she prima facie proved her right to revive her dormant judgments pursuant to OCGA § 9-12-61. Defendant answered naught, except to demand the matter be drawn to a close and have the judgments against him marked “satisfied,” or else know why. This matchless faith in his postural rectitude was unexplained. He gave no reason why the judgments formed no indebtedness; his general answer did not even admit they had become dormant in the first place, since he disavowed sufficient knowledge to give any answer thereto.

We would say clearly the plaintiff pierced the defendant’s answer and prima facie established the absence of any issue of fact as to any defense. See Maxwell v. Columbia Realty Venture, 155 Ga. App. 289 (270 SE2d 704). It was then incumbent upon defendant to bring up all he had to show. He either had nothing to say or neglected to say what he had. No issue was raised as to why he did not owe the judgments, how they might have been paid, or why they should not have been revived. He produced no fact but his indignation, and thus no issue remained to be presented to a jury. See Stephens County v. Gaines, 128 Ga. App. 661 (197 SE2d 424).

Decided June 21, 1989.

David B. Pittman, for appellant.

After judgment was issued, he retained an attorney, who timely filed a notice of appeal from the grant of summary judgment, but then filed in the trial court a “Response to Plaintiff’s Motion for Summary Judgment” which alleged (for “Reconsideration”) some facts in melioration of the debt. In a very obfuscatory manner, he asserted he had “more than paid all sums owed for child support [viz., he paid $5,260 through the probation office, $7,000 was paid directly to plaintiff, and $12,910 was paid by Social Security].” Further, he asserts the judgments revived in this case were “merely fi. fa.’s” obtained pursuant to “Affidavit for Fi. Fa.,” of which he did not have notice to appear and defend. We can make very little sense of all these new matters, except to note that an April 1977 “compromise settlement” somewhat dubiously relieved him only of any future penalty of contempt for any future arrearage.

None of this matters, for none of it was raised at the right time. The summary judgment, which issued against Right for failing to propose a defense or raise any fact in issue, was the end of the matter. Even assuming the trial court had had any jurisdiction to do anything after notice of appeal was filed, there was nothing it could “reconsider.” Appellant had to raise his best case before it was decided, for when the summary judgment issued, it was a verdict against him. See Summer-Minter &c. v. Giordano, 231 Ga. 601 (203 SE2d 173). After the summary judgment was granted, there was nothing to amend. Id.; see also Ansley v. Atlanta Suburbia Estates, 231 Ga. 640 (203 SE2d 861).

The summary judgment brought the matter to a conclusion, as appellant had demanded be done in his letter response to the plaintiff’s motion. He cannot now complain to us that the trial court’s judgment was wrong on grounds he later raised up some vague defense.

Judgment affirmed.

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

M. Francis Stubbs, for appellee.


text:
    A89A0720.
    MARKS v. THE STATE.
    (383 SE2d 626)
   Benham, Judge.

Hoyt Marks was convicted of one count of aggravated sodomy and one count of rape. He appeals, contesting the sufficiency of the evidence and the disallowance of evidence as to the victim’s prior sexual conduct.

1. Appellant contends that the evidence was insufficient to convict him of aggravated sodomy and rape. The State’s evidence showed that appellant gained access to the victim’s home to use the telephone, then forced her at knife point to commit oral sodomy and to submit to sexual intercourse. At trial, appellant admitted that the sexual conduct took place but denied that the victim was forced to engage in those acts.

On appeal the evidence must be viewed in a light most favorable to the prosecution. August v. State, 180 Ga. App. 510 (1) (349 SE2d 532) (1986). Matters of credibility are within the province of the jury (Oliver v. State, 188 Ga. App. 47 (2) (372 SE2d 256) (1988)), which in the case sub judice decided such matters in a manner adverse to appellant.

OCGA § 16-6-1 defines rape as “carnal knowledge of a female forcibly and against her will”; and OCGA § 16-6-2 (a) defines sodomy as “any sexual act involving the sex organs of one person and the mouth or anus of another” and aggravated sodomy as “sodomy with force and against the will of the other person.” Under the facts presented, the jury was authorized to find appellant guilty beyond a reasonable doubt of rape and aggravated sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Nichols v. State, 177 Ga. App. 689 (340 SE2d 654) (1986).

2. Appellant contends the trial court erred in disallowing evidence of the victim’s prior sexual conduct. Under OCGA § 24-2-3 (b), known as the “Rape Shield Statute,” the trial court may allow evidence of the victim’s prior sexual conduct if it “finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” Even though the trial court allowed appellant to testify that he had had prior sexual intercourse with the complaining witness, it disallowed testimony from appellant that he had overheard conversations by the victim’s family members that she “ran around.” We find the trial court’s ruling to be in keeping with the purposes of the Rape Shield Statute and authorized by the testimony. Harris v. State, 257 Ga. 666 (362 SE2d 211) (1987); Lockhart v. State, 172 Ga. App. 170 (4) (322 SE2d 503) (1984). Therefore, this enumeration is without merit.

Decided June 21, 1989.

James R. McKay, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1064.
    ROSS v. THE STATE.
    (383 SE2d 627)
   McMurray, Presiding Judge.

Defendant was indicted for armed robbery and two counts of aggravated assault (assault with intent to commit rape and assault with a deadly weapon). The evidence adduced at a jury trial showed that defendant approached the victim at about 5:45 in the morning on August 4, 1988, as the victim was waiting at a bus stop. Defendant displayed a handgun; ordered the victim across the street and took $200 from the victim’s purse. After crossing the street, defendant forced the victim behind a school building and down a flight of stairs; ordered the victim to disrobe and lie down and when the victim refused to fully comply with defendant’s orders, defendant “started pushing [the victim], and [she] started pushing back. And then when [the victim] wouldn’t [submit], he grabbed [her] around [the] throat and slammed [her] up against the wall and stuck the pistol into [the victim’s] mouth.” Defendant then “started kissing all on [the victim] . . . stuck [his fingers] up in [the victim’s] vagina” and began removing his clothing. At that point, defendant was distracted by a vehicle in a nearby parking lot. The victim then fled and, as she was running, she “heard [a gun fire] and [noticed] a spark ... on the back of [her] legs.” The victim escaped to her nearby home. Defendant was found guilty of armed robbery and one count of aggravated assault and now appeals. Held:

1. In his first enumeration of error, defendant contends the evidence was insufficient to support his convictions for armed robbery and aggravated assault (assault with intent to commit rape). The emphasis of defendant’s argument is the reliability of the victim’s identification of him as the assailant.

The relevant question in reviewing the sufficiency of the evidence in such cases “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Jackson v. Virginia, [443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560)]. On appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860).

In the case sub judice, the victim identified defendant as her assailant, giving a detailed account of her ordeal and describing defendant and the clothing defendant was then wearing. Clothing described by the victim as being worn by her assailant and a loaded handgun, with one shell expended, were found at defendant’s home. Finally, an eyewitness corroborated the victim’s testimony with regard to the circumstances of the incident and with regard to the general description of the assailant and his clothing. From this and other evidence adduced at trial, we find that any rational trier of fact could have found defendant guilty, beyond a reasonable doubt, of armed robbery and of aggravated assault (assault with intent to commit rape). Jackson v. Virginia, 443 U. S. 307, supra. This enumeration of error is without merit.

2. Defendant next contends the trial court erred in charging the jury the entirety of OCGA § 16-5-21 (a), arguing that such charge authorized “the jury to convict [him] for a crime not charged in the indictment.” This Code subsection authorizes conviction for aggravated assault “upon proof of one or more of several modes of assault, i.e., with a deadly weapon, or with intent to commit murder, rape, or robbery. OCGA § 16-5-21 [(a)] (Code Ann. § 26-1302).” Griffin v. State, 168 Ga. App. 696, 698 (4), 699 (310 SE2d 278).

In the case sub judice, the State elected to charge defendant with the separate offenses of aggravated assault (assault with intent to commit rape) and aggravated assault (assault with a deadly weapon). The State did not charge defendant with aggravated assault (assault with intent to commit murder) or aggravated assault (assault with intent to commit robbery). However, we find no harm in fully charging the jury on OCGA § 16-5-21 (a) since the trial court read the indictment to the jury and instructed it specifically as to each of the crimes charged. The court further instructed that if the jury found the defendant guilty of any one or more of the counts charged, it must so find, beyond a reasonable doubt, that the crime or crimes were committed in the manner in which it was charged in the indictment. Chambers v. State, 183 Ga. App. 874 (1) (360 SE2d 438). See Boscaino v. State, 186 Ga. App. 133 (2), 134 (366 SE2d 789). Compare Walker v. State, 146 Ga. App. 237 (1) (a) (246 SE2d 206), and Gaines v. State, 177 Ga. App. 795, 796 (1) (341 SE2d 252).

3. In his third enumeration of error, defendant contends the trial court erred in allowing the State’s attorney to cross-examine him in such a manner as “to put the Defendant in the position of calling the victim a liar” and that “[t]he answer, in fact, had the effect of calling the Defendant a liar.” The State’s question “properly served to attack the veracity and credibility of [defendant’s] testimony on this subject, an area certainly within the appropriate scope of cross-examination. We find no abuse of discretion in the action of the trial court in allowing the evidence. Mitchell v. State, 236 Ga. 251, 256 (223 SE2d 650); Bailey v. State, 138 Ga. App. 807, 808 (227 SE2d 516).” Wills v. State, 169 Ga. App. 260, 262 (4) (312 SE2d 367).

4. Defendant contends in his fourth enumeration of error that the trial court’s charge on intent was unconstitutionally burden shifting. In this regard, the trial court charged the jury as follows:

“Intent is an essential element of any crime and must be proven by the State beyond a reasonable doubt. A person will not be presumed to act with criminal intent, but the jury may find such intention or the absence thereof upon consideration of the words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted. You may infer in this case, if you wish to do so, (a) that the acts of a person of sound mind and discretion or [sic] the products of his will, and (b) you may infer, if you wish to do so that a person of sound mind and discretion intends the natural and probable consequences of his acts. Whether you make any such inferences or inferences in this case is a matter solely within the discretion of the jury.”

This “charge creates a permissive inference, but it does not require the jury to draw a certain conclusion, nor does it place any burden on [defendant]. Flynn v. State, 255 Ga. App. 415, 416 (339 SE2d 259) (1986).” Parker v. State, 256 Ga. 363, 365 (1) (349 SE2d 379). This enumeration of error is without merit.

5. In his final enumeration of error, defendant contends the trial court’s charge on alibi was impermissibly burden shifting. In this regard, the trial court charged as follows:

“The defendant contends that he was not present at the scene of the alleged offense at the time of its commission. Alibi as a defense involves the impossibility of the accused’s presence at the scene of the alleged offense at the time of its commission. The range of evidence in respect to time and place must be such as reasonably excludes the possibility of the presence of the defendant at the scene of the alleged offense. Presence of the defendant at the scene of the crime alleged is an essential element of the crime set forth in this indictment, and the burden of proof rests upon the State to prove such beyond a reasonable doubt. Any evidence in the nature of alibi should be considered by you in connection with all the other evidence, and if in doing so you should entertain a reasonable doubt as to the guilt of the accused, it would be your duty to acquit the defendant.” (Emphasis supplied.)

Decided June 21, 1989.

The State contends that this “charge as given was unanimously approved by the Georgia Supreme Court in Patterson v. State, 233 Ga. 724 [(213 SE2d 612)] (1975).” This is not the case. In the second footnote in Patterson v. State, 233 Ga. 724, 729 (7), 730, supra, the Supreme Court unanimously approved a charge on “alibi” based upon Special Charge 6, Pattern Jury Instructions-Criminal, prepared by the Committee on Pattern Jury Instruction, Council of Superior Court Judges of Georgia. It is noted that the emphasized portion utilized by the trial court in the case sub judice in 1988 was not set forth in the charge on “alibi” reflected in the second footnote in Patterson v. State, 233 Ga. 724, 729 (7), 730, supra, in 1975. However, we do note that the emphasized language herein is part of a charge on “alibi” contained in the November 1984 Edition of “Suggested Patterns Jury Instructions, Volume II, Criminal Cases, State of Georgia,” by the Council of Superior Court Judges of Georgia. It is this emphasized language defendant challenges, arguing that the instruction shifted the burden of persuasion to him on an essential element of the crime, presence.

In Zant v. Akins, 250 Ga. 5, 6 (2) (295 SE2d 313), the Supreme court criticized the trial court’s instruction that “ ‘ [a] libi as a defense should be established to the reasonable satisfaction of the jury but not necessarily beyond a reasonable doubt’ ” as being unconstitutionally burden-shifting. “ ‘The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. (Cits.) . . .’ Bowles v. State, 168 Ga. App. 763, 765 (4) (310 SE2d 250) (1983).” Turner v. State, 178 Ga. App. 888, 889 (3), 890 (345 SE2d 99).

From this perspective, we find that the trial court’s alibi instruction, in the case sub judice, was not unconstitutionally burden-shifting, as contended by the defendant, as it did “ ‘not put the onus on! the defendant to prove anything.’ [Poole v. Ga., 551 F2d 683 (5th Cir. 1977)].” Jarrell v. Balkcom, 735 F2d 1242, 1255 (11th Cir. 1984). Thel trial court clearly informed the jury that defendant’s presence at thel scene is an essential element of the crime, that the State had the bur-I den to prove, beyond a reasonable doubt, defendant’s presence at thel scene and that if after considering all of the evidence presented a™ trial, including the alibi evidence, the jury had a reasonable doubt oil defendant’s guilt, that it would be the jury’s duty to acquit defendant!

Judgment affirmed.

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

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Eleni A. Pryles, James W. Richter, Assistant District Attorneys, for appellee.


text:
    A89A1127.
    JORDAN v. THE STATE.
    (383 SE2d 631)
   McMurray, Presiding Judge.

Defendant Jordan appeals his conviction of five counts of aggravated assault (assault with a deadly weapon). Held:

1. Defendant’s second enumeration of error challenges the sufficiency of the evidence to support the verdict as to Counts 3 and 4, the aggravated assaults (assault with a deadly weapon) upon Randy and Cindy Schaffer. The State’s evidence shows that Robert Bell and his wife had a barbecue at their home which approximately 40 to 50 people attended. Defendant, defendant’s wife and a friend, and their children arrived at the party apparently at the invitation of one of Bell’s guests. Bell had never seen defendant before. Defendant was intoxicated and arguing with his wife. When defendant struck his wife several times he was escorted to the van in which he had arrived and told to “sleep it off.” Later, defendant emerged from the van shouting that he was not going to leave without his wife. A knife which defendant pulled was taken from him and broken. Defendant was told to leave and did in fact leave in the van. His wife refused to leave with defendant because she was afraid that defendant would beat her. Before leaving defendant threatened to return and “blow the f_ place off the map.” Later, defendant returned, armed with a rifle. At that time Bell and a group of his guests were standing around some motorcycles. Defendant pointed the rifle at the individuals in the group of guests and ordered “all y’all M_F_against the wall.” Randy and Cindy Schaffer were among those guests who composed this group of individuals ordered against a wall at gunpoint. After defendant’s command, members of the group began dropping to the ground for safety as defendant fired a shot into the group, seriously wounding Bell. The rifle jammed and defendant’s attempt to fire another shot failed. Defendant was subdued by two of the guests.

We find that the evidence was sufficient to enable a rational trier of fact to find defendant guilty of each of the five counts of aggravated assault (assault with a deadly weapon) of which defendant was convicted, including Count 3 charging an aggravated assault (assault with a deadly weapon) upon Randy Schaffer and count 4 charging an aggravated assault (assault with a deadly weapon) upon Cindy Schaffer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Morgan v. State, 189 Ga. App. 795, 796 (3) (377 SE2d 707); Benford v. State, 189 Ga. App. 761, 764 (2) (377 SE2d 530).

Decided June 21, 1989.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assis-I tant District Attorney, for appellee.

2. Defendant also enumerates as error the admission of evidence of his commission of a similar crime. The State’s evidence at issue recounted an incident in September of 1982 when defendant’s ex-wife accompanied by a friend and her boyfriend’s daughter, drove to a softball park where defendant was playing. The purpose of the visit was to permit defendant’s ex-wife to visit with their daughter who resided with defendant. After the visit the ex-wife and her friend spoke to defendant for a few minutes and then returned to their automobile and started to leave. Defendant walked up to the automobile and told his ex-wife, “you better tell your g_d___ punk [referring to her boyfriend] he better not come to Paulding County. I better not catch him in Paulding County.” After defendant’s ex-wife responded, defendant held a pistol to her head and told his ex-wife he would kill her. When the ex-wife’s friend spoke defendant told her to shut up or he would kill her too.

“Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.” Wimberly v. State, 180 Ga. App. 148 (1) (348 SE2d 692). In the case sub judice, it is shown that defendant was the perpetrator of the prior offense. The similarity between the incident involving defendant’s ex-wife and the crimes charged is clear. Both serve to illustrate a propensity of defendant to resort to the threat or use of firearms with little or no provocation, and that this conduct by defendant is not inhibited by the presence of witnesses. There is also sufficient evidence from which it may be concluded that defendant was motivated in each instance by romantic jealousy. The earlier incident was apparently precipitated by defendant’s jealousy concerning his ex-wife’s boyfriend, while in the case sub judice, there was evidence that the conduct of defendant’s present wife at the Bells’ party, including embracing one of the guests, aroused defendant’s jealousy. The trial court properly admitted the evidence of the prior similar transaction. Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270); McLeroy v. State, 184 Ga. App. 62, 63 (1) (360 SE2d 631).

Judgment affirmed.

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


text:
    A89A1200.
    STURDY v. THE STATE.
    (383 SE2d 632)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with driving under the influence of alcohol to an extent which rendered him a less safe driver under the provisions of OCGA § 40-6-391 (a) (1) and also charged with speeding.

At trial, Officer C. L. Gober of the Georgia State Patrol testified that he stopped defendant for “speeding” on September 23, 1988. He further testified he observed defendant was unsteady on his feet; that defendant had “a strong odor of alcohol on his breath” and that he “gave [defendant] an alkasensor test.” Officer Gober described an “al-kasensor” as “a portable intoximeter, it’s a little small hand-held device that [law enforcement officers] use on the scene to determine whether or not the person needs to be taken to the jail for an intox-imeter test [and that the alkasensor] measures the amount of alcohol, if you’ve consumed any alcohol it gives a digital readout... to show the amount.” Officer Gober then testified that defendant tested “positive” for alcohol on the “alkasensor” and that “[d]ue to the high level of the results of the alkasensor test[, he] didn’t feel any need to conduct any additional [field sobriety] test[s].”

Defendant’s counsel immediately objected and moved for a mistrial, arguing that the numerical results of defendant’s “alkasensor” test is inadmissible; that Officer Gober’s testimony regarding the “high” results of defendant’s test was “exactly the same as giving the [numerical] results” and this testimony was “going to cost [defendant his] right to a fair trial . . . .” The trial court stated that the propriety of Officer Gober’s testimony is “certainly a close question” and asked defense counsel, “do you want me to try to give some curative instructions which may call more attention to this [testimony]?” Defendant’s attorney responded, “Hobson’s choice,” and pressed his motion for mistrial. The trial court agreed that the giving of curative instructions was a “Hobson’s choice” but denied defendant’s motion and instructed the jury as follows: “Ladies and Gentlemen let me state to you first that the results, specific results of an alkasensor are not admissible in court and to the extent that there was an indication of a specific result of the intoximeter you are not to consider that at all, the only thing that is admissible is whether or not the results were positive or negative for the presence of alcohol.”

Officer Gober finally testified that defendant’s face and eyes “appeared to be a little red” on the night he was stopped; that defendant refused to submit to a State administered “intoximeter test” and that, based on his expertise as a law enforcement officer, defendant was then a less safe driver due to “intoxication.” Defendant was found guilty of driving under the influence of alcohol to an extent which rendered him a less safe driver and also was found guilty of speeding. This appeal followed solely as to the conviction and sentence for driving under the influence of alcohol to an extent which rendered him a less safe driver. Held:

In his sole enumeration of error, defendant contends “[t]he trial court erred in allowing [Officer Gober to] testify as to the specific results of the alkasensor test given to [him].”

At the outset, we note that “[t]he trial court’s role, in considering a mistrial, is to determine if such ‘is essential to the preservation of the right to a fair trial, . . .’ Stanley [v. State, 250 Ga. 3, 4 (2) (295 SE2d 315)]; Eaton v. State, 184 Ga. App. 645, 646 (2) (362 SE2d 375) (1987). Our role, as an intermediate appellate court, is limited to correcting lower court errors of law. Ga. Const. 1983, Art. VI, Sec. V, Par. III; Byrd [v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 450)].” Whiteley v. State, 188 Ga. App. 129 (1), 131 (372 SE2d 296).

From this perspective, we observe in the case sub judice that the State’s attorney was directed by the trial court before trial to instruct Officer Gober not to mention the specific “numerical results” of defendant’s “alkasensor” test. However, after Officer Gober testified that defendant tested “positive” on the “alkasensor” machine, the State’s attorney asked Officer Gober why he didn’t subject defendant to further field sobriety tests. The witness promptly responded tha1 he did not “[d]ue to the high level of the results of the alkasensor test . . . .” Under these circumstances, it is not an unreasonable conclu sion that the State’s attorney was not surprised by Officer Gober’i response that defendant’s “alkasensor” test was “high.” If the State attorney intended such a response, it was recklessly flawed since tb characterization of the results of defendant’s “alkasensor” test a: “high” is inadmissible evidence of the degree of defendant’s intoxica] tion. See State v. Golden, 171 Ga. App. 27 (318 SE2d 693); Turrentine v. State, 176 Ga. App. 145 (1), 146 (335 SE2d 630), and Whiteley v. State, 188 Ga. App. 129 (1), 130, supra. However, “[t]he trial cour| has broad discretion in fashioning a remedy to alleviate a proble created by the utterance of inadmissible evidence, and its exercisj may not be reversed unless abused. See discussion, 28 Encyc. Ga. Law, ‘Trial’ § 46.” Whiteley v. State, 188 Ga. App. 129 (1), 130 supra.

In light of the trial court’s curative instructions and in light the other evidence, which was sufficient by itself to support the jury finding that defendant was guilty beyond a reasonable doubt of dri ing under the influence of alcohol to an extent which rendered him less safe driver, we find no abuse in the trial court’s discretion in denying defendant’s motion for mistrial. Whiteley v. State, 188 Ga. App. 129 (1), supra. Compare Hunter v. State, 143 Ga. App. 541, 543 (5) (239 SE2d 212), and Channell v. State, 172 Ga. App. 156 (322 SE2d 356).

Decided June 21, 1989.

Edward T. M. Garland, Charles G. Haldi, for appellant.

Lydia S. Jackson, Solicitor, Raymond E. George, Assistant Solicitor, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A0297.
    HOUSTON v. THE STATE.
    (383 SE2d 571)
   Pope, Judge.

Defendant Johnnie Lee Houston appeals from his convictions and sentences for the offenses of possession of less than one ounce of marijuana and possession of cocaine. Held:

1. Defendant first challenges the sufficiency of the evidence as to his conviction for the offense of possession of cocaine. We have examined the evidence and find it sufficient to support the jury verdict under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant next contends that the trial court erred by allowing the State, over objection, to introduce into evidence defendant’s prior conviction for robbery. The record shows that while on direct examination, defendant attempted to explain that he possessed marijuana for medicinal purposes, in that he smoked it on occasion to relieve headaches and eye problems. The State argued, under the authority of Phillips v. State, 254 Ga. 370 (329 SE2d 475) (1985), that by this testimony defendant had put his character in issue and that it should be allowed to introduce evidence of defendant’s prior conviction.

We agree with the defendant that this situation is controlled by the holding in Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988), in which the Georgia Supreme Court expressly overruled Phillips. “The defendant’s testimony that he committed the criminal act of [possessing and] smoking marijuana did not in and of itself place his character in issue within the meaning of OCGA § 24-9-20 (b). [Jones] at 759 (1) (b).” Hurston v. State, 189 Ga. App. 748, 750 (377 SE2d 519) (1989). Although the State was entitled to explore fully defendant’s testimony concerning his use of marijuana on cross-examination, under the authority of Jones defendant did not place his character in issue within the meaning of OCGA § 24-9-20 (b) and the trial court committed reversible error by allowing the evidence of defendant’s prior conviction to be admitted. Hurston, supra; McGuire v. State, 188 Ga. App. 891 (2) (374 SE2d 816) (1988).

Decided May 22, 1989

Rehearing denied June 22, 1989.

Johnnie Houston, pro se.

Robert E. Wilson, District Attorney, Robert M. Coker, J. Michael McDaniel, Assistant District Attorneys, for appellee.

3. In light of our holding in Division 2, supra, it is unnecessary for us to consider defendant’s remaining enumerations.

Judgment reversed.

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

On Motion for Rehearing.

On rehearing the State argues that the holding in Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988), should not be retroactively applied to the facts of this case. We disagree. An appellate court applies the law as it exists at the time when the case is before it. Rylee v. State, 184 Ga. App. 401 (361 SE2d 546) (1987). Consequently, defendant’s conviction must be reversed.


text:
    A89A0405.
    PALM RESTAURANT OF GEORGIA, INC. et al. v. PRAKAS et al.
    (383 SE2d 584)
   Pope, Judge.

The facts of this case are set forth in this court’s earlier opinion Palm Restaurant of Ga. v. Prakas, 186 Ga. App. 223 (366 SE2d 826 (1988) (hereinafter referred to as “Palm Restaurant I”). This cour reversed the judgment of the trial court and remanded with directioi that it correct the findings of fact to conform to the evidence an< then issue a judgment in accordance with the corrected findings o fact. On remand, the trial court, on its own motion, ordered a ne^ trial. In response to a petition for writ of mandamus brought b; plaintiffs Palm Restaurant of Georgia, Inc., and Nick J. Jorda: against the trial judge, The Honorable Nick G. Lambros, this cour ordered the trial judge to enter findings of fact and conclusions of law based on the transcript of evidence adduced at the bench trial, in aci cordance with this court’s opinion in Palm Restaurant I. Palm Restaurant of Ga. v. Lambros, Motion Docket No. 107 (decided Septeirl ber 23, 1988). The trial court then issued new findings of fact anl conclusions of law based on the evidence adduced at the bench trial. A new judgment was entered in favor of plaintiffs and against defendant Athan C. Prakas on the $35,000 promissory note (see Palm Restaurant I) plus interest, attorney fees and post-judgment interest and against defendant Charles G. Prakas on the $35,000 promissory note plus interest and post-judgment interest. According to the findings of fact and conclusions of law, defendant Ernest Brookins was, as in the original judgment, released from his obligation as surety on the $50,000 promissory note. Plaintiffs appeal the second judgment of the trial court.

The original judgment of the trial court found plaintiff Jordan, the seller of the restaurant business at issue in this case, had wrongfully removed “substantial assets” of the business from the leased premises following the closing of the transaction, thereby entitling defendants to a $10,000 set-off against their obligation to plaintiffs. (See Division 2 of Palm Restaurant I.) On remand, the trial court found that “at least one-half of the assets transferred by the bill of sale were in fact taken from the premises despite plaintiffs’ claim that few items were removed. ...” The court further found that plaintiff Jordan engaged in “tortious conduct” after closing the transaction which resulted in the delay of the opening of defendants’ business. As a result of these two findings, the court: (1) concluded that defendants Athan C. Prakas and Charles G. Prakas were entitled to an offset of $50,000 against the total $85,000 owed to plaintiffs and thus the Prakas defendants were found not liable on the $50,000 promissory note; and (2) concluded that defendant Ernest D. Brookins was released from his obligation as a surety on the $50,000 promissory note.

These findings and conclusions are in direct conflict with this court’s holding in Palm Restaurant I. As to the value of assets removed from the leased premises, this court earlier held “there is no evidence to support the trial court’s finding that the value of the property removed was in excess of $190.00.” Id. at 225. Consequently, we held that the court’s initial judgment that the defendants were entitled to a $10,000 offset was erroneous. In the second findings of fact, now before us on this appeal, the trial court expressly found that more than just the few items plaintiff Jordan admitted taking were in fact taken from the premises. While the record would support a finding that more items were taken from the premises than those plaintiff Jordan admits taking, no evidence whatsoever was presented to establish the value of said items. Defendants had the burden of proving their affirmative defense of set-off (OCGA § 24-4-1) but failed to present evidence of the amount of set-off beyond $190. As to the conduct of plaintiff Jordan, which the court found to be tortious, this court previously held that the evidence established that said conduct did not cause any delay in defendants’ obtaining a license to operate their business. “[The] evidence shows that the six-month delay in obtaining a liquor license cannot be attributed to [plaintiff] Jordan’s letter [to the licensing authorities], but to [defendants’] delay in having the premises repaired so as to secure the necessary certificate of occupancy [which defendant Athan Prakas admitted was required before his business could obtain a liquor license].” Palm Restaurant I at 226.

Decided June 1, 1989

Rehearing denied June 22, 1989

Smith & Fleming, Robert O. Fleming, Jr., for appellants.

Cashin & Morton, Richard W. Gerakitis, 0. Jackson Cook, for appellees.

The ruling of this court in Palm Restaurant I is binding on all subsequent proceedings in the case in the lower court and in this court. OCGA § 9-11-60 (h). “ ‘Moreover, the decision of the appellate court, and any direction awarded, shall be respected and in good faith carried into full effect by the court below. (Cits.)’ Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 650 (297 SE2d 307) (1982).” Crowell v. City of Eastman, 187 Ga. App. 891, 892 (371 SE2d 667) (1988). Pursuant to our earlier holding, the conduct of plaintiff Jordan provides no ground for an offset in defendants’ liability or for defendant Brookins’ release; and the removal of property from the premises supports an offset in defendants’ liability on the promissory notes of no more than $190. The lower court erred in making a second findings of fact and conclusions of law and in entering judgment in contradiction to the previous holding of this court. For the second time, the judgment of the trial court is reversed and the case is remanded and for the third time the trial judge is directed to correct the findings of fact to conform to the evidence and to issue a judgment in accordance with the present and past holdings of this court.

Judgment reversed and case remanded with direction.

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


author: Beasley, Judge.

text:
    A89A0515.
    COTTON STATES MUTUAL INSURANCE COMPANY v. GOMEZ.
    (383 SE2d 567)
   Beasley, Judge.

Cotton States appeals the denial of its motion for summary judg ment and the grant of partial summary judgment to Gomez.

Cotton States issued a policy of insurance to Godfrey for the pe riod November 11, 1984 to May 11, 1985. The only vehicle listed wa¡ a Datsun pickup truck which Godfrey had agreed to sell his coworker, appellee Gomez, on November 3. They agreed that Gomez would pay him $3,000 over time and she gave him a check for $1,500 that day. They also agreed that Godfrey would maintain possession and title of the truck until it was fully paid for and that he would maintain insurance on it. Gomez actually took possession in December, while still making payments. According to her, the sale was to be final when she made the last payment and got the title.

Gomez was injured while driving the truck on April 5, 1985, at which time she still owed $200 to Godfrey.

In her suit for coverage, Gomez filed together a motion for summary judgment and a motion for filing of discovery materials in June 1987. Her deposition and other discovery materials, filed July 22, evidenced the above facts.

Cotton States filed its response and motion for summary judgment on July 22. The motions were heard in December, and apparently (there is no transcript of record) plaintiff’s counsel was asked to draft a proposed order based on the oral ruling. Cotton States filed a motion for clarification of the proposed order, which was argued in February.

It was not until the filing of this latter motion that Cotton States filed, as exhibits to it, Godfrey’s deposition and an affidavit of a claims examiner which included an unsworn statement taken from Godfrey. The court specifically refused to consider these two items and stated that it was not going to reconsider its earlier ruling, the only purpose of the requested hearing being to clarify that earlier ruling.

An order was entered by the court, a motion to set aside was made by Cotton States and granted, and the order was reentered in October 1988. Appeal followed.

The reentered order holds that “Plaintiff’s motion ... is partially granted, as to the finding that Plaintiff [Gomez] qualified as an insured under Defendant Godfrey’s policy of insurance with Cotton States Mutual Insurance Company, based upon the agreement between Defendant Godfrey and Plaintiff, Defendant Godfrey gave Plaintiff permission to use that vehicle while Defendant Godfrey would maintain insurance on said vehicle.”

Cotton States contended in its motion and in response to plaintiff’s motion that there was no coverage, as a matter of law, because 1) a sale had occurred on delivery of the vehicle to Gomez so that non-owner Godfrey could not consent to its use, and 2) Gomez was not a named insured or insured within the meaning of the policy.

1. The sale argument is based on OCGA § 11-2-401 (2): “Insofar as situations are not covered by the other provisions of this article and matters concerning title become material the following rules apply: ... (2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; ...”

Decided May 18, 1989

Rehearing denied June 22, 1989

Parkerson & Shelfer, William S. Shelfer, Jr., Dauid B. Groff, for appellant.

Randie H. Siegel, Robert M. Goldberg, for appellee.

However, the uncontradicted evidence (excluding the evidence submitted late by Cotton States) shows that this situation fits within the exception regarding explicit agreement and this argument fails. Compare Stone v. Nolan, 171 Ga. App. 644 (320 SE2d 781) (1984); American Mut. &c. Ins. Co. v. Cotton States &c. Ins. Co., 149 Ga. App. 280, 281 (2A) (253 SE2d 825) (1979).

2. “Persons insured” under the policy are defined as the named insured, Godfrey, and “any other person using such automobile, provided the actual use thereof is with the permission of the named insured, and provided that no coverage shall be afforded hereunder to any person actually operating the automobile without the express permission of the named insured.”

Since the ruling that ownership had been reserved by Godfrey until payment was completed, as agreed by him and Gomez, was demanded by the evidence, Gomez was an insured under the policy definition and covered while using the vehicle with the permission of Godfrey.

Even if the vehicle was not technically “owned” by Godfrey at the time of the accident, coverage would still obtain because he had an insurable interest in the vehicle and had purchased the policy listing it as the only insured vehicle. Mahone v. State Farm Mut. Ins. Co., 188 Ga. App. 664 (373 SE2d 809) (1988).

Judgment affirmed.

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


text:
    A89A0644.
    SINGLETON v. ITSON et al.
    (383 SE2d 598)
   Carley, Chief Judge.

After appellant-plaintiff’s employment with Georgia Farm Bureau Mutual Insurance Company was terminated, he filed suit againstj appellee-defendants and alleged that they had tortiously interfered with his employment contract. The case was tried before a jury. Af the close of appellant’s evidence, the trial court directed a verdict in favor of; all appellees. It is from the grant of the motions for directed verdict that appellant brings this appeal.

Construed in the light most favorable to appellant, the evidence, insofar as it is relevant to an action for tortious interference with contractual relations, is as follows: After being placed on six-months’ probation for having failed to complete his paper work in a timely manner, appellant requested that additional secretarial help be provided to him. In response to that request, appellee Herrington was hired. Although she was employed to assist appellant, appellee Herrington was not under his supervisory authority. An atmosphere of tension quickly developed between appellant and appellee Herrington. This clash of personalities was a factor in their superiors’ increasing impatience with the overall situation in the office. The presence of employees’ family members in the office was another. Appellant was eventually placed on indefinite probation and informed that family members of employees were not permitted in the office and that, in the event his family business caused any further disruptions of his official business, his services would be immediately terminated. Subsequently appellant’s wife came to the office to assist him with his paper work, as she had previously done. Appellee Herrington complained about the presence of appellant’s wife in the office and stated that she neither needed nor wanted his wife interfering in her work. Although appellant had allowed his wife to return to the office in violation of his earlier instructions, he was not immediately terminated but was offered a transfer to another office at a lower-level position. Appellant rejected this transfer offer and his employment was then terminated.

“ ‘ “The fact that employment is at will and that the employer is free from liability for discharging an employee does not carry with it immunity to a third person who, without justification, causes the discharge of the employee. . . .” [Cit.]’ [Cit.]” Favors v. Alco Mfg. Co., 186 Ga. App. 480, 483-84 (4) (367 SE2d 328) (1988). “To recover for malicious and wrongful interference with contractual rights, malicious intent to cause the result must be shown. [Cit.]” Satsuki Imports v. W. G. Carroll & Co., 188 Ga. App. 350, 351 (3) (373 SE2d 56) (1988). The terms “malicious” and “maliciously” mean “ ‘any unauthorized interference or any interference without legal justification or excuse. . . .’ [Cit.]” (Emphasis supplied.) Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743) (1987). The terms are “ ‘to be construed liberally: The act is malicious when it is done with knowledge of the plaintiff’s rights and with the intent to interfere with them. [Cits.] . . . Malice plus injury to business of itself does not, however, constitute the tort of wrongful interference with business. Rather, an independent wrongful act is required as well as an injury. [Cit.]’ [Cits.]” (Emphasis supplied.) Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 90 (4) (354 SE2d 852) (1987).

Several appellees are the directors of the local Farm Bureau who participated in the decision to discharge appellant. As to them, the undisputed evidence shows that their participation in appellant’s discharge occurred within the scope of their supervisory authority and in the course of their employment. Henson v. American Family Corp., 171 Ga. App. 724, 729-30 (4) (321 SE2d 205) (1984); Sacks v. McCrory, 160 Ga. App. 430, 431 (1) (287 SE2d 292) (1981). Such impatience with and animosity toward appellant as they may have exhibited related only to his violation of official policy and to his inability to correct other perceived problems in the office. They had the right to enforce official policy and to deal with those problems which appellant was unable to correct. They clearly had the right to protect their business and “there is nothing to controvert the appellees’ showing that they acted in what they believed to be the best interests of the business and without malicious intent.” Johnson v. Auto/Mend, 183 Ga. App. 311, 312 (359 SE2d 10) (1987). Accordingly, as to these ap-pellees, the trial court correctly granted a directed verdict.

As to appellee Herrington, appellant urges that she, as a third party, tortiously interfered with his employment contract by setting in motion, for purely personal reasons, the machinery which led to his discharge. See Favors v. Alco Mfg. Co., supra at 484 (4). In Favors, however, the tortious interference was accomplished by the third party’s independently wrongful act of making a false statement about a co-employee. It is undisputed that appellee Herrington made no false statements about appellant. Appellant’s discharge was the result of his wife’s unauthorized presence at the office. Appellee Her-rington’s report of this fact was, without dispute, truthful. Likewise, none of appellee Herrington’s prior statements about appellant was shown to be false. Indeed, most, if not all, of appellee’s statements concerning appellant were mere expressions of her personal opinion. Those opinions were certainly critical of appellant’s work and there was undoubtedly a personality conflict as between her and appellant. However, as we held in Kornegay v. Mundy, 190 Ga. App. 433 (1) (379 SE2d 14) (1989), “[s]uch a conflict between employees is a matter to be resolved by the mutual employer. It should not be litigated in a court of law.” Here, the conflict of personalities between co-employees was resolved by the termination of the employment of both appellee Herrington and appellant. Divulging truthful information and expressing critical personal opinions about a co-employee’s work are not wrongful or unlawful acts and those acts cannot, therefore, give rise to liability for tortious interference with contractual relations in the event that the employer makes the independent determination that the truthful information and critical opinions warrant termination of an at-will employee. There being no evidence of an act of ap-pellee Herrington’s which was independently wrongful or unlawful, the grant of a directed verdict in favor of her was correct.

Decided June 6, 1989

Rehearing denied June 22, 1989

Whelchel, Whelchel & Carlton, James C. Whelchel, for appellant.

Frank S. Twitty, Jr., Denmark Groover, Jr., Frank C. Vann, for appellees.

With regard to the remaining appellees, a directed verdict was likewise correctly granted in their favor. Although interference with contractual relations may occur by means of a conspiracy, Nottingham v. Wrigley, 221 Ga. 386, 388 (144 SE2d 749) (1965), there must exist a wrongful interference before any liability may be imposed. First Federal Savings Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). See also Grace v. Roan, 145 Ga. App. 776, 778 (245 SE2d 17) (1978). As discussed previously, there was no wrongful interference in appellant’s employment and the remaining appellees cannot, as a matter of law, be found liable under a conspiracy theory. “While the cause of [the] . . . friction is in dispute, [appellant] does not deny its existence, or the fact that the precipitating cause of [the discharge] was his own [action in permitting his wife to work at the office].” Wilkinson v. Trust Co. of Ga. Assoc., 128 Ga. App. 473, 475 (3) (197 SE2d 146) (1973). There being no evidence to support appellant’s allegations of conspiracy and malice, those conclusory allegations are not sufficient for him to avoid the grant of a motion for a directed verdict. See Johnson v. Auto/Mend, supra at 312.

Judgment affirmed.

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