text:
    75245.
    WIMBERLY v. KARP et al.
    (365 SE2d 131)
   Sognier, Judge.

Stanton Wimberly brought suit against Arthur Karp, Southern Copy Machines, Inc. (Southern) and its president, William Curran, seeking to recover damages resulting from an altercation with Karp, as well as from Wimberly’s subsequent termination from employment at Southern and from an alleged scheme among all three defendants to prevent his later employment elsewhere. The trial court granted summary judgment in favor of Southern and Curran, and granted Karp’s motion to strike Wimberly’s demand for jury trial. Wimberly appeals.

The record reveals that Southern and Curran filed their motion for summary judgment on January 12, 1987. On February 11, 1987, appellant filed a pleading denominated “Plaintiff’s Motion,” which moved the court to dismiss the motion for summary judgment or, alternatively, grant appellant an additional 23 days to respond. No action was taken by the trial court on appellant’s “Plaintiff’s Motion,” and on March 4th, appellant filed both another request for additional time and a response to the motion for summary judgment. Southern and Curran’s motion for summary judgment was granted by order entered March 6, 1987, at which time both requests for extensions of time were denied.

1. We find no abuse of the trial court’s discretion in denying appellant’s motion for an extension of time, although appellant asserted his February 11 motion was based on a leave of absence granted to his counsel. The record fails to reflect any such order granting a leave of absence, and appellant admits in his brief on appeal to this court that although his counsel was granted such leave for other pending cases, no such leave was sought or granted as to the instant case. Thus, in the absence of any justification for requesting an extension of 23 days in the February 11 motion, we cannot say the trial court abused its discretion by denying that request, or the later, untimely request for yet another 40 days. OCGA § 9-11-6 (b). See generally Cox v. Cantrell, 181 Ga. App. 722, 723 (1) (353 SE2d 582) (1987); Barone v. McRae & Holloway, 179 Ga. App. 812, 813-814 (1) (348 SE2d 320) (1986).

We likewise find no error in the trial court’s grant of summary judgment to Southern and Curran. Appellant’s February 11 motion contained no response to Southern and Curran’s motion. The response filed on March 4 was in violation of Rule 6.2 of the Uniform Rules for the Superior Courts, 253 Ga. 801, 816-817, because it was not filed within 30 days after service of the motion for summary judgment, and the motion for additional time filed with the response, in addition to violating Rule 6.2, contained no indication that the failure to file a response was the result of excusable neglect. OCGA § 9-11-6 (b) (2). By failing to respond timely to the motion for summary judgment, appellant “gave up his opportunity to be heard,” Spikes v. Citizens State Bank, 179 Ga. App. 479, 481 (1) (347 SE2d 310) (1986), and thus the trial court correctly found no questions of fact existed to refute the evidence submitted by Southern and Curran in support of their motion for summary judgment. “Since appellant failed to comply in any way with the Rules under which he was supposed to operate, he cannot be heard to complain that the wheels of justice have rolled over him.” Id.

2. We find no merit in appellant’s final enumeration of error, contending the trial court erred by granting Karp’s motion to strike appellant’s demand for jury trial. The record reflects that this case had been assigned to civil arbitration pursuant to local court rules requiring that should exception be taken to the arbitrator’s award, a demand for jury trial must be filed with the court administrator within thirty days of the filing of the award. Appellant argues the trial court incorrectly interpreted the local rules in its order determining appellant failed to follow the procedure set forth therein. “[H]owever, these rules are not in the record and this court cannot take judicial notice of their contents.” Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 587 (6) (227 SE2d 77) (1976). See also Harris v. Harris, 228 Ga. 562, 563 (1) (187 SE2d 139) (1972). “It is well established that the burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. [Cits.]” Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (1986). The trial court did not err by granting Karp’s motion to strike appellant’s jury demand.

Decided January 5, 1988

Rehearing denied January 19, 1988

J. Eugene Wilson, for appellant.

Otto Feil III, Barry L. Zimmerman, for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    75342.
    WEAVER v. THE STATE.
    (365 SE2d 130)
   Pope, Judge.

Janice Weaver brings this appeal from her conviction and sentence of aggravated assault. Her sole enumeration of error challenges the trial court’s refusal to give a requested charge on reckless conduct, OCGA § 16-5-60.

Appellant contends that reckless conduct is a lesser included offense of aggravated assault under the evidence in this case, citing Bowers v. State, 177 Ga. App. 36 (2) (338 SE2d 457) (1985). Cf. Harshaw v. State, 134 Ga. App. 581 (3) (215 SE2d 337) (1975). In support of this assertion, appellant points to her trial testimony: “I had the gun by the handles . . . and I just stepped up [to the victim’s truck] and I showed her [the victim] the gun. I told her . . . : ‘Hazel, just get the hell out of here and leave me and my family alone.’... I just intended to turn around and walk off. ... I had [the gun] by the handles . . . [but] didn’t have it in the window [of the victim’s truck.] It was at the window . . . [but] I didn’t point it at her or stick it inside the truck; just so she could see it . . . and she grabbed my arm. . . .. [W]hen she grabbed my arm, my arm hit the window and the gun just went off. ... I just meant to scare her. I didn’t want to hurt anybody. I just wanted them to go on so we could go home and it all be forgot. [Appellant feared that the victim would do serious bodily harm to appellant’s brother, the victim’s ex-husband.] I didn’t mean to hurt her. It was an accident.”

Decided January 5, 1988

Rehearing denied January 19, 1988

Theresa M. Clyne, Sara F. Miller, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

We find appellant’s enumeration of error controlled adversely to her by the holding in Riley v. State, 181 Ga. App. 667 (3) (353 SE2d 598) (1987): “In Bowers, the charge on reckless conduct was appropriate because the jury was authorized to find that the defendant engaged in target practice with a gun while consciously disregarding the risk to the nearby victim. One is guilty of reckless conduct who ‘causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause the harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .’ OCGA § 16-5-60. The crime of reckless conduct is one of criminal negligence. Bowers v. State, supra at 38 (1). The instant case is distinguishable from Bowers. Appellant admitted [displaying] the gun with the intent to scare the victim, although she testified that she did not intend to [shoot her.] ‘Using a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification. (Cits.) The act testified to by appellant was either justified as an act of self-defense [or defense of another, or was an accident,] or constituted a felony.’ (Emphasis supplied.) Williams v. State, 249 Ga. 6, 8 (287 SE2d 31) (1982). The jury was fully and completely instructed on [both accident and] justification. The trial court did not err in refusing to give the requested charge.” Id. at 669-670.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    75595.
    AGS EMBARCADERO ASSOCIATES v. DEPARTMENT OF TRANSPORTATION.
    (365 SE2d 125)
   Deen, Presiding Judge.

Appellant AGS Embarcadero Associates (AGS) owned an apartment complex consisting of 42 buildings containing 404 units and located at the intersection of 1-85 and 1-285 in the vicinity of Hartsfield Airport. In 1981 appellee Department of Transportation (DOT) filed a declaration of taking involving slightly more than 1/10 of an acre of the AGS property for use as an exit ramp. DOT ultimately paid into the registry of the Fulton County Superior Court an amount in excess of $28,000, representing the fair market value of the land taken. AGS contended, inter alia, that consequential damages to the remaining property amounted to an inverse condemnation and counterclaimed for compensation for this damage, as well as for the 1/10 acre actually condemned and taken.

After a number of delays the case went to trial in 1987, and a DOT expert witness testified that the true value of the land taken was $26,420. AGS did not contest this figure but argued diminution in the value of the apartment complex, and particularly of an eight-unit building which was within 15 feet of the ramp built on the property actually taken. The trial court ruled, in effect, that there could be no evidence presented as to consequential damages not peculiar to condemnees. Testimony was presented that, on the basis of sales of comparable property in the vicinity, each of the eight units in the affected building was worth something over $16,000 before construction of the ramp. An expert witness for AGS testified that, on the basis of noise levels determined through scientific observation, the presence of the ramp in such immediate proximity to the affected building had rendered the eight units uninhabitable. There was no evidence offered as to the fair market value of the “uninhabitable” building after construction of the ramp on the condemned 1/10 acre. Appellant contends that such evidence was not proffered because the trial court expressly excluded it; appellee contends that no such exclusion was ordered.

The trial court ruled that, no evidence having been presented regarding the “after” value of the building, there was no issue to go to the jury as to special damages sustained by appellant in that respect. The court then directed a verdict of $26,420 as the amount due AGS in compensation for the 1/10 acre taken, including all easements. AGS appeals, enumerating the following errors: (1) the court’s “addressing and ruling on the merits of AGS’ claim for consequential damages prior to trial, without proper notice and without allowing AGS to proffer its evidence. . .”; (2) the judge’s “prohibiting all evidence and testimony relating to damages occurring during the ongoing period of construction”; and (3) the trial judge’s “directing a verdict against AGS as to consequential damages in the face of a prima facie case.” Held:

1. Our scrutiny of the extensive record of the protracted proceedings in the instant case fails to persuade us that there is merit in either of appellant’s first two enumerations.

2. In State Hwy. Dept. v. Augusta Dist. of Methodist Church, 115 Ga. App. 162 (154 SE2d 29) (1967), appellant condemned a small tract that was part of a conference ground owned by condemnee/appellee. After highway construction was complete, one of the several cabins built and (prior to the condemnation) used for sleeping quarters by campers was found, after the taking and highway construction, to be situated in such close proximity to the road that the traffic noise, as well as the very fact of proximity, “rendered it useless for the purpose for which it was constructed.” Id. at 163. It was uninhabited during the entire summer (i.e., the season for conferences and camp sessions) before the trial. Testimony was given as to the cabin’s value ($5,000), the construction cost ($4,500), and the cost of moving it to another part of the campground ($4,375.96). A jury awarded $200 for the land taken and $4,300 for consequential damages to the remaining property. The Highway Department appealed, contending that the evidence was insufficient as to damages caused to the remainder of the property. This court affirmed, holding that “[t]he testimony as to the value, cost of construction, and expenses ... to move the cabin [elsewhere on the grounds] was sufficient to support the verdict as to the amount of consequential damages.” Id. at 164. Moreover, this court held at 163 that “[i]f shown to affect adversely the value and use of the condemnee’s remaining property, evidence of noise and other elements may be taken into consideration by the jury in determining consequential damages.” The court expressly held that in that fact situation it was not error to decline to direct a verdict on the consequential damages issue. Id. at 164.

We fail to see the qualitative difference between testimony as to the cabin’s original value and its uninhabitability, and the testimony, proffered in part and excluded in part, in the instant case regarding the value ($16,000 per unit) and the uninhabitability of the apartment building nearest the exit ramp. A fortiori, we see no reason why testimony as to highway noise as a major factor contributing to uninhabitability would be any less admissible in the instant case than in the case cited supra. The fact that in the former case the condemnee owned land to which the affected cabin could be moved (and concerning the cost of which testimony could be given), whereas in the case sub judice no alternate site was available, makes no difference in the result. There can be no question that in both cases the consequential damages sustained by condemnees were different in kind from those sustained by the general public.

It was error for the trial court to exclude evidence of the adverse effect of noise on the remainder of the property following completion of the ramp, and as to the property’s “after” value. The case should be remanded for retrial on the issue of consequential damages to the property remaining after the taking of the portion used for highway purposes.

Judgment affirmed in part and reversed in part; case remanded.

Birdsong, C. J., and Pope, J., concur.

Decided January 4, 1988

Rehearing denied January 19, 1988

E. Kendrick Smith, Kenneth L. Millwood, for appellant.

Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beryl H. Weiner, Dennis S. Mackin, J. Matthew Dwyer, Jr., for appellee.


text:
    75763.
    SUTTON v. SULLIVAN & CARDEN et al.
    (364 SE2d 887)
   Deen, Presiding Judge.

In August 1978 appellant entered into an agreement to sell his Sumter County-based public accounting practice to appellee Sullivan and Carden, an accounting firm based in neighboring Dougherty County. The purchase price was to be paid in installments over a period of approximately five years, with payments other than the initial down payment based on a percentage of the firm’s annual revenues. Appellant was required to cease the practice of public accounting in the area for a designated period of time (with certain exceptions noted in the agreement), and to furnish purchasers with a list of clients and a record of revenues from each; to notify all clients that the practice had changed hands; and to urge all clients to use the successor firm for their accounting needs. There was a provision in the agreement that Sutton was to pay liquidated damages of $1,000 for each instance of breach of his agreements to refrain from doing public accounting in the area for the agreed-upon period of time, and was to perform services for former clients only as provided in the agreement. In return, Sullivan and Carden was to exercise its “best efforts” to maximize revenue from the practice, which was to become the Americus branch of the firm. In the event of Sullivan and Carden’s default on this provision of the agreement, Sutton was to have alternative remedies: (1) the right to terminate the agreement, and (2) the right to bring suit against the purchasers to recover liquidated damages of $25,000.

During the five years after sale of the practice, income from the Americus office fell far below that which had been earned during the approximately five years immediately preceding the sale. The office was allegedly inadequately staffed, and there were allegations of reports of client dissatisfaction with the new owners of the firm. Ultimately, when the income generated by the office — and the basis upon which Sutton’s annual payments were calculated — continued to lag far behind that of former years, Sutton elected to bring suit against Sullivan and Carden, seeking $25,000 in liquidated damages for breach of the agreement to exert “best efforts.”

Appellees answered, denying the allegations of the complaint and counter-claiming for damages in excess of $10,000 for alleged breaches by Sutton. The appellees then moved for summary judgment or, in the altérnative, for partial summary judgment striking the liquidated damages provision. Both sides filed affidavits and other documents supporting opposing positions on the motion. The Superior Court of Dougherty County granted the motion for partial summary judgment, holding that the $25,000 in liquidated damages was really a penalty and therefore unenforceable. Sutton has appealed to this court, enumerating as error the trial court’s award of partial summary judgment relative to the liquidated damages clause. Held:

1. There appears to be a genuine issue of material fact regarding how the $25,000 figure was arrived at. Appellees contend by affidavit that the figure was taken “out of the air” and placed in the agreement by Sutton’s attorney, with no prior discussion between the parties. On the other hand, Sutton contends in his affidavit that the figure was thoroughly discussed beforehand and, moreover, that it bears a reasonable relationship both to the former (pre-sale) income from the practice and to the amount of annual income needed to generate the annual percentages agreed upon as part of the purchase price. He points out that there was also a liquidated damages clause which would operate against him in case of his default or breach of the covenant not to compete. Summary judgment is inappropriate unless “there is no genuine issue as to any material fact.” OCGA § 9-11-56 (c).

2. Determination of whether a so-called “liquidated damages” clause in a contract actually represents a penalty rather than damages requires a tripartite inquiry: “[F]irst, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.” Calamari & Perillo, The Law of Contracts, 367 (1970). Appellees here contend that the clause at issue fails on the first of the three prongs of the tripartite inquiry because appellant himself demonstrates, on the basis of income from the accounting practice during a period of approximately five years prior to the sale, that the agreed-upon percentage can be accurately estimated and would come to something in excess of $24,800. Appellant contends, however, that what the estimate shows is that the prescribed $25,000 bears a reasonable relationship to the “probable loss” ($24,800), as required by the third prong of the inquiry.

Analysis of appellees’ argument indicates that, in net effect, they are contending that compliance with the third requirement necessarily amounts to non-compliance with the first. We find this position logically and legally untenable. In Thorne v. Lee Timber Prods., 158 Ga. App. 226 (279 SE2d 521) (1981), on which appellees rely, there was a standardized formula available for estimating accurately the number and kinds of trees cut in violation of the contractual provisions; here, no such formula is available. Moreover, there are a number of variables present in the instant case which did not exist in Thorne. Further, in undertaking to estimate what amount of business might or might not have been performed for former clients by the new owners, appellant would be put to the all but impossible task of attempting to “prove” a negative. We hold that both the first and third prongs of the tripartite inquiry are satisfied. As for the second prong, the parties’ intent is at issue, thereby pointing up the unsuitability of summary judgment.

It appears to us that the instant case presents precisely the sort of fact situation for which a liquidated damages provision is appropriate. Thus we find no persuasive authority for appellees’ position either in Thorne, supra, or in Southeastern Land Fund v. Real Estate World, 237 Ga. 227 (227 SE2d 340) (1976), on which appellees also rely. In the contract at issue in Southeastern there is a second provision dealing with liquidated damages which modifies, and must be read in conjunction with, the initial “liquidated damages” clause, thereby injecting into the contract an ambiguity which prompted the Supreme Court to apply the principle that “ ‘in cases of doubt the courts [should] favor the construction which holds the stipulated sum to be a penalty.’ ” Id. at 231. There is no such ambiguity present in the instant case, and therefore this principle does not apply.

Appellees, however, further point to a supposed diminution of damages in the latter years of the contract as rendering the contested clause unreasonable. On the surface, appellees’ hypothetical example of a breach in which appellants would be able to collect $25,000 in liquidated damages, instead of $20 in actual damages, is plausible; but on closer scrutiny it fails to persuade. As a practical matter, it would be infeasible if not impossible for appellant to exercise his alternative remedy of terminating the agreement after the practice had been operated by appellees for a year or more. For this reason, too, the provision for liquidated damages seems reasonable and appropriate.

We hold that as a matter of law the trial court erred in granting summary judgment on the liquidated damages/penalty issue, and we remand the case for proceedings consistent with this holding.

Judgment reversed and case remanded.

Birdsong, C. J., and Pope, J., concur.

Decided January 4, 1988

Rehearing denied January 19, 1988

William J. Murray, for appellant.

Hilliard P. Burt, C. Nathan Davis, Terry J. Marlowe, for appellees.


text:
    74170.
    STAFFORD v. QUINN et al.
    (365 SE2d 553)
    Decided January 19, 1988.

      Richard W. Summers, for appellant.

      Frederick N. Gleaton, Richard Smith, John E. Hall, Jr., Penelope B. Rundle, for appellees.
   Pope, Judge.

Our judgment in this case at 183 Ga. App. 227 (358 SE2d 619) (1987) has been reversed by the Supreme Court on certiorari. Quinn v. Stafford, 257 Ga. 608 (362 SE2d 49) (1987). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    75212.
    SPILLERS v. FIRST SOUTH BANK, N.A.
    (365 SE2d 151)
   Pope, Judge.

In 1980 plaintiff First South Bank, N.A. (through its predecessor in interest) extended a loan to one Nichols. The variable rate demand note was co-signed by defendant Paul Spillers. Various payments were made on the note until June 1986, when the bank requested the original loan be paid off from the proceeds of a new loan for stipulated monthly payments. The new installment note for $54,182.88 included interest on a principal amount of $42,091.76, the pay-off amount of the original loan. The installment note went into default and plaintiff bank brought suit against both Nichols and Spillers. Summary judgment was denied the bank in regard to its claim against Nichols because Nichols raised the defense that he had signed the note form before any of the essential terms were filled in and that the bank had completed the instrument otherwise than as authorized by him. However, summary judgment was granted to the bank as against defendant Spillers, who appeals.

1. Defendant Spillers first argues that summary judgment should not be granted because a genuine issue of fact has been raised as to the amount due on the note. Essentially, defendant argues that there is partial failure of consideration for the new installment note because the two debtors were overcharged for interest remaining on the original demand note.

The original demand note was subject to a variable rate of interest. When the interest rate changed, the defendants were notified by mail on a form which listed the outstanding balance of the loan. The final balance due on the original note before it was “rolled over” into the new installment note was $23,353.60. This indicates that over $18,000 was charged for outstanding interest since the pay-off of the old note, and the principal amount of the new installment note, was $42,091.76. In the months prior to the execution of the new installment note, the interest rate notices showed a decrease in the balance due, indicating that payments were credited to the account. Defendant Spillers argues that, pursuant to OCGA § 7-4-17, payments on a debt must first be applied to interest due, with only the balance of the payment, if any, applied to the principal. Because the principal decreased in the final months, defendant argues the co-signers could not possibly have owed over $18,000 in interest, since accrued interest should have been credited before the principal was reduced. Defendant contends this alleged discrepancy shows the amount due on the original note is in dispute.

Pursuant to OCGA § 7-4-17, any payment upon a debt “shall be applied first to the discharge of any interest due at the time. . . .” (Emphasis added.) In the case of a demand note, no time for payment is expressed. Therefore, no interest would be due until payment is demanded. In the case at hand, various payments had been made over the years which the bank had credited to reduce the principal amount of the original demand note, rather than the accrued interest. Unless the debtor has stipulated otherwise, the creditor has the right to apply any payments to the reduction of the principal of the debt where, as here, no interest was then due at the time of payment. Massell Realty Co. v. Chamberlin, 47 Ga. App. 718 (3) (171 SE 311) (1933). No evidence was presented that the debtors stipulated in the original demand note that payments should be credited in any particular manner. Therefore, the bank was free to apply payment to the principal of the note. No genuine issue of partial failure of consideration is raised by defendant’s argument that the bank overcharged him for interest due on the original note.

2. However, we agree with defendant that a triable issue of fact remains as to whether defendant Spillers’ liability on the note may be discharged along with the liability of his co-maker. Even though defendant Spillers executed the note as a co-maker, he may show by parol evidence that the true capacity in which he executed the note was as an accommodation party and thereby establish his rights as a surety. Bank of Terrell v. Webb, 177 Ga. App. 715 (1) (341 SE2d 258) (1986); Deems v. Wilson, 114 Ga. App. 341 (1) (151 SE2d 230) (1966). “Whenever the principal debtor is discharged, the surety is also discharged.” Samples v. Kamp-N-Go Systems, 139 Ga. App. 324 (228 SE2d 360) (1976). In the case at hand, if the co-maker shows at trial that he is discharged from liability because the bank completed the instrument of debt in an unauthorized manner (see OCGA §§ 11-3-407 (1) (b) and 11-3-601 (1) (f)), then defendant, if he is shown to be an accommodation party, would be discharged also. See Griswold v. Whetsell, 157 Ga. App. 800 (3) (278 SE2d 753) (1981). The rationale for such a discharge of the accommodation party is that his right of recourse against the discharged co-maker would be impaired.

Decided January 19, 1988.

Thomas M. Green, for appellant.

Charles J. Liipfert, for appellee.

Summary judgment should not have been granted against defendant Spillers because a genuine issue exists as to whether his liability on the note should be discharged.

Judgment reversed.

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


text:
    75256.
    TURNER OUTDOOR ADVERTISING, LTD. v. OLD SOUTH CORPORATION.
    (365 SE2d 149)
   Pope, Judge.

Plaintiff Turner Outdoor Advertising, Ltd., brought this action against defendant Old South Corporation to recover monthly payments allegedly due under a contract for billboard advertising. Neither party conducted pre-trial discovery and the case came on for jury trial. During the presentation of plaintiff’s case, evidence was presented which showed the original contract between the parties to this action had been superseded by a new contract which added an additional party as an obligor to the plaintiff. At the close of plaintiff’s evidence, defendant moved for directed verdict on the ground the additional party was a joint obligor on the contract and was therefore an indispensable party which plaintiff failed to join in this action. Plaintiff appeals from the grant of said motion.

1. Plaintiff’s first two enumerations of error assert that the trial court erred in “finding as a matter of law” that the additional party was a joint obligor under the contract and therefore a necessary and indispensable party to the action without whom the action could not proceed. We note that the order granting the motion for directed verdict made no such finding. More properly, then, we will consider these two enumerations as arguing that a directed verdict was improper because the additional party was not a joint obligor and because, even if it was a joint obligor, the plaintiff could rightly bring its action against only one of the two obligors. We agree that the grant of directed verdict was improper, but for reasons other than those asserted in plaintiff’s first two enumerations of error.

Plaintiff does not deny that the third party was added as an obligor under the contract. During the term of the original contract for advertising, a new advertiser was substituted and the billboard was changed. At that time, a new written contract was executed identical to the first except that the new advertiser also executed the contract as one of the promisors for stipulated monthly payments. Unless otherwise stipulated, the common promises of several persons are presumed to be joint obligations. In this case, the two executing parties are referred to in the body of the contract as “we (the undersigned).” All promises contained within the contract are worded jointly, for example, “we promise to pay” and “we agree to pay.” Therefore, the record shows the contract was made between plaintiff and two joint obligors. “In an action ex contractu against two or more joint contractors, the recovery must be upon their joint liability, which requires that all must be joined in the action.” Wall v. Wall, 176 Ga. 757, 759 (168 SE 893) (1933). We reject plaintiff’s argument that the facts of this case present an exception to this general rule.

2. However, we agree with plaintiff that the court erred in directing the verdict for the defendant because of plaintiff’s failure to join a necessary party. A co-obligor to a contract is a necessary party who should be joined in the action, pursuant to OCGA § 9-11-19 (a), where possible. See Weiss v. Gunter, 144 Ga. App. 513 (241 SE2d 623) (1978). However, whether a co-obligor is an indispensable party without whom the action should be dismissed is a separate issue. OCGA § 9-11-19 (b). First, it should be determined whether the necessary party cannot be joined for lack of jurisdiction, venue or some other reason. While it appears from the face of the contract that the joint obligor in this case may have been a Florida corporation, the record is devoid of evidence that the joint obligor can or cannot be made a party to the action. “If the indispensable party can be joined, the court should ordinarily permit the joinder and not dismiss the action.” (Punctuation and citation omitted.) S. D. H. Co. v. Stewart, 135 Ga. App. 505, 508 (218 SE2d 268) (1975). Accord Guhl v. Tuggle, 242 Ga. 412 (1) (249 SE2d 219) (1978); Dismuke v. Stynchcombe, 237 Ga. 420 (4) (228 SE2d 817) (1976); Coe v. Greenville Credit &c. Co., 164 Ga. App. 521 (3) (298 SE2d 36) (1982); Henry v. Moister, 155 Ga. App. 462 (1) (271 SE2d 40) (1980). Accordingly, the trial court’s direction of a verdict against plaintiff is reversed with direction that upon receipt of the remittitur the trial court enter an order allowing plaintiff a reasonable time in which to add the joint obligor as a defendant to this action or to amend its complaint to state the reason why the necessary party cannot be joined, pursuant to OCGA § 9-11-19 (c), or to face dismissal.

Decided January 19, 1988.

Lawrence S. Burnat, Lynn C. Stewart, for appellant.

Charles J. Driebe, Jr., for appellee.

If for lack of jurisdiction, or any other reason, the joint obligor cannot be joined as a party to the action, then the trial court must determine, by considering the factors set forth in OCGA § 9-11-19 (b), if the necessary party is also an indispensable party without whom the action should not proceed. For purposes of federal diversity jurisdiction, the majority of federal courts apparently hold that a joint obligor is not an indispensable party to a suit based on breach of contract. See Camp v. Gress, 250 U. S. 308 (39 SC 478, 63 LE 997) (1919); Brackin Tie &c. Co. v. McLarty Farms, Inc., 95 FRD 328 (S.D. Ga. 1982). However, in an early case, the Georgia Supreme Court stated that where joint obligors to a contract are not joined, the case must be dismissed. Wall v. Wall, supra. Although the holding in that case was ultimately based upon a finding that the action was one in tort and not in contract, we are constrained to follow the clear and unequivocal statement of the law contained within that opinion by the Supreme Court. Any change in Georgia law to reflect the more modern rule for determining whether a joint obligor is an indispensable party must be announced by the Georgia Supreme Court.

3. We find no merit in plaintiff’s final enumeration of error, in which plaintiff argues the joint obligor, who admittedly was never served with the complaint, should be considered as being before the court in the trial of the case because it was “aware” that suit had been filed on the contract.

Judgment reversed with direction.

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


author: Birdsong, Chief Judge.

text:
    75478.
    COOK v. THE STATE.
    (364 SE2d 912)
   Birdsong, Chief Judge.

Appellant Gordon W. Cook was convicted of burglary and of a charge of driving while intoxicated. As a recidivist, he' was sentenced to serve 20 years for burglary, and 12 months concurrent for DUI.

The conviction for burglary was founded upon evidence that appellant was several times seen driving by the victim’s house about the time of the burglary and stopped to speak to several young men nearby. After visiting awhile with these persons and smoking a “joint” of marijuana, he left; a short time later one of the young men went to the victim’s house to rouse his friend (the victim’s son) and discovered the burglary. Forced entry had been attempted at five windows of the house and a latch was broken off a frame. Within two hours of the discovery of the break-in, appellant’s car, with him and another person in it, was stopped in LaFayette for suspected DUI, and a search of the car uncovered several items later identified as taken from the burglary victim’s house, including a knife. Appellant denied having seen this property before, with the exception of the knife, the possession of which he attempted to explain innocently. Evidence was allowed at trial of 11 prior burglary guilty pleas of the appellant within a few miles of the location of this burglary and which were perpetrated in a similar fashion, i.e., through a window or door, including one burglary of this same victim when he lived elsewhere.

Cook enumerates three errors below. Held:

1. Appellant contends the trial court erred in failing, upon request, to charge the jury that a conviction may be had upon circumstantial evidence only if the proved facts are consistent with the hypothesis of guilt, and exclude every reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. That the evidence in this case is all circumstantial, there is no doubt. The evidence of similar crimes points to appellant as having committed this one, as does his possession of stolen property, and his having been in the vicinity of the burgled house. The proof of theft by proof of recent, unexplained possession of stolen property is inference only, however strong the inference may be. OCGA § 24-1-1 (4); Bankston v. State, 251 Ga. 730 (309 SE2d 369). It is circumstantial evidence. Campbell v. State, 129 Ga. App. 836, 837 (201 SE2d 666).

In Price v. State, 180 Ga. App. 215 (2) (348 SE2d 740), we held: “In a burglary prosecution where the only evidence tending to connect the accused with the alleged offense is his unsatisfactorily explained possession of recently stolen goods, it is error for the trial court to fail to give, with or without request, a charge on the principle contained in OCGA § 24-4-6. See generally Turner v. State, 40 Ga. App. 662 (151 SE 120).” In Price, the failure to give, in the exact language of OCGA § 24-4-6, the charge as to when circumstantial evidence will authorize conviction, was not reversible error because the trial court charged the jury the equally or more beneficial principle as to acceptance of a reasonably deduced theory of innocence. See also Booker v. State, 156 Ga. App. 40, 42 (4) (274 SE2d 84), rev'd on other grounds 247 Ga. 74 (274 SE2d 334).

We have carefully studied the jury charge in this case in light of Price, supra, and Booker, supra, and we find no comparable charge that would meliorate the refusal to advise this jury that it could convict appellant upon circumstantial evidence only if the crime is proved beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. While the trial court charged repeatedly upon the presumption of innocence, it nevertheless advised the jury this protective “cloak” was removed by evidence sufficient to convince the jury beyond a reasonable doubt as to the guilt of the accused. This was not enough. While the due process test of sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) is proof “beyond a reasonable doubt,” insofar as the appellate standard of review is concerned, the jury must be charged that it cannot convict on circumstantial evidence unless it excludes every other reasonable hypothesis. This is pursuant to statutory law in Georgia. A charge in the exact language of OCGA § 24-4-6 is not required, but there is nothing in this charge that warns the jury of the special limitations of circumstantial evidence. We are compelled to say this jury charge was deficient.

The State contends this case was not merely a case of circumstantial evidence, but that direct evidence was given that witnesses in the vicinity saw a car they recognized as appellant’s with three people in it, saw it pass by again with one person in it, and then return with the appellant getting out and producing a marijuana “joint” which he shared with the witnesses. While the group smoked the marijuana, the victim’s house was out of the group’s line of sight. After about 15 minutes, appellant drove off, making a “U” turn and again passing the victim’s residence. A short time later, one of the witnesses discovered the burglary. The State contended appellant thus had created a diversion and suggests on appeal (and, apparently below) that it was during this diversion that the burglary was committed, obviously, by Hammock who was with appellant when appellant’s car was stopped two hours later. It is difficult to say this evidence is direct evidence that appellant was a party to the burglary; however strongly it suggests the fact, particularly when put with the other circumstantial evidence, nevertheless it does not immediately point to the conclusion that appellant committed the burglary. It only “tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.” This is the statutory definition of circumstantial evidence at OCGA § 24-1-1 (4). Since all of the evidence against appellant is circumstantial, the trial court was obliged to charge the jury what it must find before reaching a verdict.

We cannot find this failure to charge the statutory standard of proof was harmless beyond a reasonable doubt. There was no direct proof the appellant entered this house. The inference that he did was drawn upon his proximity, his past conduct and character, and the presence in his car of some of the stolen property and his physical possession of the victim’s knife. He attempted to explain his possession of the knife by saying that a companion defendant, Thurmond Hammock, gave him the knife; and that Hammock said he had “some stuff he wanted to show me when he got home, where I was going.” Evidently appellant meant to show this other “stuff” Hammock had was stolen property which he, the appellant, did not possess, for he said he did not know it was in the car. The truth or reasonableness of these representations is not for us to decide (see Harris v. State, 236 Ga. 242 (223 SE2d 643); Gee v. State, 146 Ga. App. 528 (246 SE2d 720); Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474)); but suffice it to say the jury might have believed appellant’s possession of these goods was not “unexplained” recent possession, in which case the evidence would not even have carried the inference that appellant committed the burglary. Cf. Gilder v. State, 52 Ga. App. 252 (183 SE 95). The verdict weakens proportionate to the jury’s ignorance of the requirement of OCGA § 24-4-6. As the evidence against appellant was not overwhelming, we cannot say the error was harmless. See Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). As a general rule, it would be difficult to assess on appeal the amount of circumstantial evidence that would be so overwhelming as to render harmless the failure to charge the jury it could not convict unless it found him guilty to the exclusion of every other reasonable hypothesis.

2. The trial court did not err in admitting evidence of the similar crimes committed by the appellant. Identity and sufficient similarity of the crimes were shown; the evidence is relevant to prove motive, plan, scheme, modus operandi, bent of mind and conduct. Ellenburg v. State, 239 Ga. 309, 311 (236 SE2d 650); Harper v. State, 180 Ga. App. 20 (348 SE2d 318); Munn v. State, 179 Ga. App. 357 (346 SE2d 128).

3. Appellant contends the trial court erred in refusing to grant a continuance when it appeared the companion defendant Hammock could not be found when the appellant called him as a witness. The trial court did grant a recess for several hours to allow appellant to locate the witness. Upon inquiry of the court, appellant’s counsel stated that neither he nor anyone else knew what Hammock would have said or testified to. Hammock’s own attorney was called to state what Hammock would testify to and revealed that he and Hammock intended that if Hammock were called to the stand, he would invoke his constitutional privilege against self-incrimination. We are inclined to believe therefore that appellant could not state the facts expected to be proved by this witness, or if he could, they could not be expected to be proved. See OCGA § 17-8-25 as to the requirements for a grant of continuance. Therefore the trial court did not commit manifest injustice to the appellant and did not abuse its discretion in denying a continuance of the trial until Hammock could be produced to testify. See Alderman v. State, 241 Ga. 496, 502-503 (246 SE2d 642). In any case, the point is moot, in view of the reversal of the judgment for the reason stated in Division 1.

Decided January 19, 1988.

Hubert E. Hamilton III, for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

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


text:
    75550.
    CARROLLTON COCA-COLA BOTTLING COMPANY et al. v. BROWN.
    (365 SE2d 143)
   Birdsong, Chief Judge.

This is a workers’ compensation discretionary appeal arising out of the employer’s requests for change of physicians, for suspension of benefits for failure of claimant to cooperate with rehabilitation and for termination of benefits based on claimant’s “change of condition.”

The claimant Terry Brown, while a route salesman with Coca-Cola Bottling Company of Carrollton, suffered a ruptured disk in 1978 at age 28 while lifting a Coca-Cola crate. He has had four back operations, three of them deemed unsuccessful. He has experienced increasing pain, unrelieved except by use of narcotic painkillers. His mental health has deteriorated so that his orthopedic physician, Dr. Benton, referred him to a psychiatrist, Dr. Carter. In Dr. Carter’s care, Brown has been hospitalized 20 times for severe depression and “nerve problems” caused by constant pain and the psychological effects of his inability to work.

In 1984, a fifth, highly dangerous “last resort” operation was recommended. This operation is attempted only in “life and death” situations; it does not promise success. Viewing this operation as ill-advised, and seeing the claimant’s physical and emotional condition steadily worsen while his consumption of drugs increased, apparently to the point that he injects them into himself, the employer requested a rehabilitation conference. The ALJ appointed a rehabilitation supplier, Nurse Sullivan. She proposed as an alternative to surgery that the claimant attend the Miami Pain Clinic, and secured his admission. This clinic provides a controversial but highly successful regimen that involves “fighting through the pain.” It is not clear, though, that Brown’s apparent drug dependency was fully taken into consideration in these plans, since evidently it was not considered a significant problem by his own physicians. It is also not indicated that the claimant was fully prepared for, or even clearly aware of, the fact that the clinic plans involved detoxification.

Claimant and his wife arrived in Miami in February 1985 for 3 days of evaluation prior to treatment. The clinic head, Dr. Rosomoff, assessed Brown as a “sensitive inhibited individual who is easily upset.” On the first day of treatment, hospital personnel took all his medications away. Although later the clinic physicians denied having taken his medications away, Dr. Rosomoffs own discharge summary states clearly that after the evaluation period, Brown was “placed on Percocet, p.o., to begin detoxification. However, this may not have been strong enough to control the withdrawal.”

The claimant testified that at his first physical therapy encounter, the therapist commenced to pull and bend his leg with such enthusiasm that “I thought I was about out of my head.” He begged her to stop but she said, “No pain; no gain,” and continued her ministrations. Finally, he said, “I’m sorry, I can’t take the pain,” and she said, “Well then leave.” So he did. The discharge summary states that when he left (“against medical advice”), he was undergoing “severe drug addiction withdrawal.” Nurse Sullivan testified that she “doubt[ed]” the therapist would have done exercises and manipulations that would have been painful; yet she stated contradictively that the express goal of the regimen was to teach the patient to increase his pain threshold and tolerate pain.

The claimant returned to Atlanta in a very nervous, depressed and angry condition. He feared he would commit suicide. Dr. Carter readmitted him to the hospital psychiatric unit. Thereafter he forbade Nurse Sullivan to see Brown because he deemed her contacts counterproductive to all his progress in stabilizing Brown’s nerves and depression; furthermore, Brown no longer trusted her. Dr. Carter concluded Brown was not psychologically capable of dealing with the clinic program at that time.

At this stalemate, the employer/insurer made its formal requests and a hearing was held. The ALJ granted the request for change of the psychiatrist (Dr. Carter) but denied a change of the orthopedist, Dr. Benton, and retained Nurse Sullivan as rehabilitation supplier. He found that “because of the complexities of this case the failures of the claimant [to comply with the rehabilitation directives] are a direct result of dependency to drugs prescribed by the treating psychiatrist . . . ,” and the motion to suspend benefits was denied.

On appeal, the board ordered an independent psychiatric evaluation by Dr. Mercer (who it had been proposed would replace Carter). Dr. Mercer was specifically to address the question of Brown’s chemical dependency and manipulative behavior. He found Brown to be of suicidal risk and suffering from chronic pain syndrome, and recommended he be treated for his chemical dependency in a drug rehabilitation unit.

Thereupon, the board affirmed the ALJ’s order, except to deny the change of psychiatrist from Carter to another, finding that “it is unwise to disturb claimant’s standing relationship with [Carter] and [Benton].” The board suspended rehabilitation efforts indefinitely, but directed Drs. Benton and Carter to “immediately undertake an interdisciplinary approach to effectively treat claimant’s drug dependency (if any) and psychological problems.”

The superior court found evidence supporting the board’s award and affirmed it. The employer/insurer appeals to us. Held:

1. We have stated the evidence as it favors the award (see Lockhart v. Liberty Mut. Ins. Co., 141 Ga. App. 476 (233 SE2d 810)) and find that there is evidence to support it on the narrowly confined issues of change of physician and failure to cooperate with rehabilitation. See Galmon v. Seabreeze Mfg. Co., 181 Ga. App. 132, 133 (351 SE2d 521). We find further that while opinions may differ as to the most judicious way to resolve the difficult problems of this case, the board’s award was not so patently whimsical, arbitrary, capricious and unrestrained to constitute an abuse of discretion under Columbus Foundries v. Moore, 175 Ga. App. 387 (333 SE2d 212). The decision in Columbus Foundries can be explained by reference to OCGA § 34-9-105 (c) (4); a charge of abuse of discretion must be sparingly made and such abuse will rarely be found unless the award is so far outside the evidence as to be defective under § 34-9-105 (c). It is not so in this case. The board clearly acted carefully and within the evidence and effected a judicious compromise by retaining Brown’s present physicians but directing them to treat his chemical dependency before further effort is made to rehabilitate.

The appellants contend some of the claimant’s own testimony is self-contradictory, which fact demands a ruling against him under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). This contention is a perversion of what Prophecy Corp. says. Clearly the law does not require a ruling be entered against a party who makes an arguable self-contradiction on a single or minor point amidst a sea of favorable evidence.

Prophecy Corp. involved summary judgment proceedings, and pointed out as a basis (p. 28) that at a trial, where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Therefore, on summary judgment if the party contradicted himself on the dispositive issue of the case, this testimony is construed against him. Prophecy Corp. held that even so, the trial court may determine that such a contradiction is “reasonably explained,” and in any case the rule applies only to direct contradictions, not vague or equivocal testimony. The contradictions which appellants have strained to find in the claimant’s medical testimony are not direct unequivocal testimony on the dispositive issue of the case nor do they constitute the only evidence in claimant’s favor. Some of these “self-contradictions” (e.g., the assertion that claimant has in fact refused the fifth operation while seeking to retain the physician (Benton) who advocates it; and is seeking to retain the physicians who have fostered his chemical dependency while claiming he is unable to undergo rehabilitation which fact he arguably admits is due to his drug addiction), are so subjectively equivocal and unclear that they do not constitute self-contradictions of the only evidence in claimant’s favor, so much as they show claimant’s floundering confusion in a complex case. This straining at gnats has contributed mightily to the clouding of the salient issue in the case, as shown below.

2. We reverse the superior court’s affirmance of the board’s award, because the forums below erroneously failed to consider a salient issue which might have affected all issues. This issue was the request for a suspension of benefits based upon a change of condition of claimant’s status, economically and physically. The employer/insurer contends the superior court erred “in failing to reverse the [board] in denying that appellee had undergone a change of condition for the better.” This assertion misstates the case. The fact is the board did not rule on the issue at all.

Claimant’s evidence showed he is totally unable to work, must use a cane, and spends most of his time in bed or in a chair at home, unable to do even yardwork or housework. The employer/insurer at the ALJ’s hearing produced an investigator, Keaton, who testified he surveilled the claimant for three days in his hometown of Heflin, Alabama, mostly at a rental house undergoing renovation. He testified he saw the claimant drive up, walk into the house without aid of his cane, and move about in and outside the house with no sign of physical disability whatever for several hours. Sounds of hammering and sawing emanated from the house. A siding crew arrived and were directed in by Brown. Obviously Keaton could not see inside the house but often Brown was seen going by a window evidently carrying something. Keaton saw Brown come out on the porch and wipe sweat from his face; Keaton also saw him bend and stoop without any sign of disability and favoring no part of his body. He testified the only time he had seen Brown limp was on the occasion of this hearing. Once Brown was seen taking trash and debris outside the rental house, and once he came outside carrying a board about two by eight inches thick and ten feet long. Keaton positively identified Brown as the man he had seen at the house. Another time Brown and his wife arrived in a truck with Brown driving. The house had two front doors, evidently for apartments. Mrs. Brown went in one door and Brown went in the other, and for several hours it seemed a great deal went on inside involving wallpapering. Keaton also saw Brown come out and wash paint brushes.

The investigator testified it was difficult to surveil in this town for it was a close knit neighborhood with elderly people moving about in their yards. Nevertheless, Keaton produced photographs of a person he positively identified as the claimant, who was sitting before him at the hearing. The depictee was seen dimly in the truck but somewhat more clearly outside the house, standing and stooping and bending. Mr. Keaton excused the graininess of some of the photos by saying he had been in the shade and in a difficult perspective surveillance-wise. Later the claimant contended one picture showed only the rear view of a man bending over; but at least one of the photos presents a nice three-quarter view of the man’s face, perfectly detectable as a unique and identifiable physiognomy.

The claimant earned $220 per week when he was injured and his wife at one time worked at a factory. Evidently they had no other source of income, and they rented a house to live in. Now they own the house they live in except for a mortgage, and own free and clear four other rental properties, some containing apartments. Keaton’s pictures of these houses show them to be attractive, particularly the Browns’ residence, a large two-story white house with small box columns reaching to the roof. Their income from workers’ compensation and Social Security benefits amounts to over $20,000 tax-free per year and in addition to this they have $1,175 per month from rental of these other properties. Keaton also testified that Brown is known in his hometown as a contractor in the house-remodeling business. In evidence is a zoning change petition signed by several town residents requesting a change be granted “to Mr. Terry Brown for the conversion of [a single dwelling to a duplex].”

The claimant dismissed all this as “irrelevant to the issues,” but the ALJ said he would let it in as impeachment. There was no testimony or evidence that the person depicted in the photographs was not Mr. Brown. Neither the pictures depicting Mr. Brown nor the pictures showing the houses are directly disputed. If they are true depictions, they directly contradict Brown’s evidence that he is unable to walk, uses a cane, and is able only to sit and occasionally move about with great difficulty. Mrs. Brown said the man in the picture could not be her husband because she thought he was in the hospital one of those days. She said he might have gone over to that house one day just to look around, but that he never spent the whole day there because he is unable to work and mostly sits around the house and watches television. Both claimant and Mrs. Brown testified all these houses belong to her and that she saw to all the renovations and Mr. Brown had nothing to do with it. She testified, as to her present income, that she directs beauty pageants.

The claimant’s counsel characterized all of this evidence as irrelevant, “nit-picking,” and “all cotton candy,” and evidently so did the ALJ and the board and superior court, for none of these bodies mentioned it except the superior court in mere passing reference to the issues raised. Although the board did not include the photographs in the record forwarded to the superior court, the investigator’s testimony was in the record, and was ignored in the superior court’s review. On every level, appellants have raised this evidence; each time the claimant has dismissed it as vague, irrelevant and proving nothing, each time it was ignored; and each time the employer has stubbornly raised the evidence up again, but apparently without any real conviction that it represents its own central issue and that the board erred in failing to rule on that issue.

On appeal we find it insupportable that this issue of change of condition should have been ignored completely, along with the evidence supporting it. The reason for this seems to be first that the evidence keeps getting confused by everybody as merely going to refute the requests to change physicians and to suspend benefits for failure to cooperate with rehabilitation. Furthermore, the claimant is a witness so credible and found credible by so many professionals, and it seems so obvious no well person would endure four back operations and contemplate yet another that may as a side effect leave him impotent and still not cure his pain, that the evidence offered that he is working, or able to work, is apparently deemed preposterous. It must have been supposed there are only two alternatives, that he is either able or disabled, each precluding the other; and since he so obviously seems to be disabled, the evidence that he is able was deemed absolutely weightless.

In this the ALJ, board, and superior court erred. The issue of change of condition is a salient issue in the case. It demands a ruling, even if only to say the entirety of this evidence was found unworthy and to deny there had been a change. This evidence and its serious implications are not limited in value to impeachment on other issues, but are direct evidence going to a principal issue.

In view of the discomfort below in dealing with this evidence and issue, we are compelled to say we do not find this evidence to be irreconcilable with the conclusions posed by the rest of the evidence in the case. If the facts show he is able to work and to some particular degree is working, such facts must be addressed. Although we state no opinion of the case, we venture to say there are as many possibilities and complex varieties in human behavior as there are humans, and the resolution of this case may lie in a possibility or view not yet considered because all the evidence was not considered.

OCGA § 34-9-102 (f) provides that upon a hearing the administrative law judge “shall determine the questions and issues and file the decision with the record of the hearing.” (Emphasis supplied.) The findings of fact must address themselves to the specific facts and the material issues raised. Carrie v. Continental Ins. Co., 147 Ga. App. 544 (249 SE2d 349). The award of the board must state the facts it finds true so that the losing party may intelligently prepare his appeal and the cause may be intelligently reviewed. Id. The findings of fact must be concise but comprehensive as found to be true by the board (or ALJ), upon any material issues of the case. Noles v. Aragon Mills, 110 Ga. App. 374, 375 (138 SE2d 598).

If the findings of fact are incomplete and fail to consider and adjudge all the evidence in the case, they are, as stated, in effect insufficient to support the award under the standard of review of § 34-9-105 (c) (3) and (4). See Grier v. Travelers Ins. Co., 112 Ga. App. 159, 160 (144 SE2d 196).

Moreover, to the extent such evidence and issue of change of condition, if considered, might have affected the determination on the other issues (change of physicians and cessation of benefits for failure to cooperate with rehabilitation), the facts found as to those issues are insufficient and incomplete. See United States Fire Ins. Co. v. Phillips, 120 Ga. App. 51, 53 (169 SE2d 665).

On an earlier occasion, we said that the board’s failure to make an affirmative finding of fact as to a matter was tantamount to finding that no such fact existed (Anderson v. Houston Fire &c. Ins. Co., 104 Ga. App. 680 (122 SE2d 589)), but that is only where all the evidence is undisputed and demands that certain finding. Gatrell v. Employer Mut. &c. Ins. Co., 121 Ga. App. 467, 468 (174 SE2d 237); Dudley v. Sears, Roebuck & Co., 111 Ga. App. 214, 216 (141 SE2d 179). That certainly is not the case here.

We find that the board’s failure to consider and weigh the evidence as to change of condition, and failure to consider it as it might affect the other issues in the case, were error. Therefore the superior court erred in affirming the award. Under authority of Travelers Ins. Co. v. Merritt, 124 Ga. App. 42, 44 (183 SE2d 73), we reverse the decision of the superior court as to all issues, with direction that the case be remanded for reconsideration by the board on the merits of every issue in light of the evidence on change of condition, including the receipt of such additional evidence as may be necessary for a complete resolution of the issues. The board is to be directed to render a complete finding of fact, disposing of every issue raised.

Decided January 19, 1988.

Mark S. Gannon, Richard G. Farnsworth, for appellants.

E. Lamar Gammage, Jr., George E. Mundy, for appellee.

Judgment reversed and case remanded.

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


text:
    75507.
    JONES v. THE STATE.
    (365 SE2d 153)
   Birdsong, Chief Judge.

Appellant, Bobby Lewis Jones, was convicted of two counts of armed robbery, two counts of simple assault, and one count of burglary. Appellant asserts two enumerated errors in his appeal. Held:

1. Appellant’s first enumerated error is that the trial court erred in failing to grant appellant’s motion for directed verdict notwithstanding the verdict. Specifically, appellant asserts that he was prejudiced when he was compelled in open court to resist the request of a sworn and seated juror to be excused to take care of an elderly lady, as the juror then became aware that her excusal request was denied due to appellant’s opposition thereto. At the onset we note that the trial transcript fails to disclose the sequence of events alluded to in appellant’s brief. Assertions of fact made in briefs of counsel but not supported by the trial record or transcript, as appropriate, do not constitute evidence which this court can consider on appeal. See Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438). If the appellant had desired that the trial transcript accurately reflect what transpired concerning this matter, he could have made timely motion to the trial judge to cause a transcript of these matters to be prepared. OCGA § 5-6-41 (d). In view of the state of the trial transcript, we find this enumerated error to be without merit. See McKenzey v. State, 125 Ga. App. 508 (3) (188 SE2d 116).

Further, we are satisfied that the state of the evidence in this case is not such as to demand a verdict of acquittal. See Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). Moreover, pur review of the transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided January 21, 1988.

Linda S. Cowen, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

2. Appellant’s second enumerated error is that his motion to merge Counts III and IV of the indictment (simple battery of Bernadette Hying and Leo Hying, respectively) into Counts I and II thereof (armed robbery of Bernadette Hying and Leo Hying respectively) should have been granted by the trial judge. Appellant specifically asserts that the simple battery supporting his conviction under Counts III and IV had to be the touching of the two victims when the perpetrators were taking items from them, and as such that each simple battery is included, as a matter of fact, in its corresponding greater offense of armed robbery. In Haynes v. State, 249 Ga. 119 (2) (288 SE2d 185), the Supreme Court stated: “In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime . . . look to the actual evidence introduced at trial. . . . [I]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact.” Applying this test to the facts of this case, we are satisfied that the two simple assaults were separate offenses and were not merely lesser included offenses, within the meaning of OCGA § 16-6-1, of the respective armed robbery charges. Accordingly, we find that the trial judge did not err in denying appellant’s motion to merge.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    75805.
    WALLER v. THE STATE.
    (364 SE2d 915)
   Banke, Presiding Judge.

On appeal from the denial of her motion for new trial following her conviction of voluntary manslaughter, the appellant’s sole contention is that the evidence did not support the jury’s verdict.

The victim, who was the ¿ppellant’s husband, died of a stab wound admittedly inflicted by the appellant. Although the appellant contended that the stabbing had occurred in the kitchen and that she had acted in self-defense, the evidence suggested that the victim had been sitting on a couch in the living room at the time of the attack, as blood was located only on the victim, the couch and the knife. Moreover, there was testimony by the medical examiner and by a forensic scientist showing that the victim had been severely intoxicated at the time of the killing, that he would have had difficulty walking or maintaining his balance, and that if he had been sitting even for a short period of time, he would probably have been unconscious. Held:

Decided January 21, 1988.

Drew R. Dubrin, Chandelle Turner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Paul L. Howard, Jr., Richard E. Hicks, Assistant District Attorneys, for appellee.

The evidence, reviewed in a light most favorable to the verdict, was sufficient to have enabled a rational trier of fact to find the appellant guilty of voluntary manslaughter beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, C. J., concurs. Beasley, J., concurs in judgment only.


text:
    75335.
    ROBINSON et al. v. DEPARTMENT OF TRANSPORTATION.
    (364 SE2d 884)
   Birdsong, Chief Judge.

Condemnation — Dismissal of Appeal to Superior Court Relating to Award of Compensation. In 1980-1981, DOT condemned certain land that lay at the intersection of Cleveland Avenue and 1-85 in Fulton County for the purpose of widening 1-85. Certain property owners who owned a motel, a restaurant, repair shops and the like would have their businesses destroyed. DOT caused the necessary property to be condemned and paid the estimated value of the condemned property into the court. The property owners disputed the valuation placed upon their property and a jury trial was held upon the dispute. In June 1983, the jury rendered a verdict for the several property owners in the amount of $1,500,000. Before the jury trial on compensation commenced, DOT became aware that as a part of the slightly more than four acres condemned, there could be an ancient cemetery (Gilbert Cemetery) on at least a part of the property to be condemned.

Property records indicated that apparently around 1861, the owner of the property (Gilbert) had dedicated one acre of land as a burial site for slaves and the families of slaves. This dedication apparently legally was accomplished, in that the cemetery plot was recognized in land transactions in several deeds in the early 20th century. DOT was not aware whether the land had been used as a cemetery (i.e., for actual interments) but sought permission from the court to investigate the possibility. Investigation disclosed that burials had occurred there for more than a hundred years though there were no visible signs such as headstones or grave markers nor signs of disturbed ground to indicate the configuration or size or even exact location of the cemetery. Further investigation indicated the cemetery size may have been doubled early in the 20th century to two acres. Scientific investigation brought forth the opinion that more than 1,000 deceased persons apparently had been buried in the location. The names and descendants of those buried there generally were unknown. Research subsequently disclosed the names of approximately 36 families or persons who were in fact buried there. DOT petitioned the court to allow disinterment and reinterment at a place to be selected or to appoint a citizens committee to locate potential survivors, to formulate a plan to design and perpetuate a suitable memorial to honor those buried there and the cemetery as a place of repose not to be further disturbed.

A public hearing was to be held to discuss the proposed memorial design and to identify as many of the deceased who were buried in the site as possible. Such a committee was appointed by the court. A notice was published as to the public hearing and notices of the hearing were served or attempts were made to serve the 36 families or persons who had already been identified as having a family interest in the cemetery. The appellant Hattie Robinson was one of those upon whom an attempt was made to notify of the hearing. It is not disputable that legally effective service was not effected upon Mrs. Robinson when service was left at a neighbor’s house, although it also is clear that the neighbor did deliver the notice of hearing to Mrs. Robinson and that she did appear and testified as a witness, as did the other appellant herein Lamar Glover. At this hearing in April 1982, Mr. Glover particularly voiced a concern as to why the property owners were being considered for payment for the loss of their property but the descendants of the persons buried in the old cemetery were not being considered for a solatium or property reimbursement. The participants at the hearing were informed that the only purpose of the hearing was to consider an appropriate setting aside of the land and the design and placement of a memorial. The participants were also informed that a lawsuit had been filed in Fulton County contesting the amount of compensation and that suit had not yet been decided. The participants were informed in effect that if they believed they were entitled to compensation they could seek intervention in that lawsuit.

There had been an earlier hearing in March 1982 in the superior court in response to DOT’s request for guidance from the court as to what action to take to protect the cemetery, or to memorialize the site and the possible relocation of bodies buried therein. It was at that hearing that the trial court ordered no bodies (except one) to be ex-umed and the appointment of the committee to perpetuate Gilbert Cemetery as a protected and secluded memorial. Mrs. Robinson attended this first hearing but was unable to participate personally.

After the award of compensation to the fee property owners in June 1983, Mrs. Robinson and Mr. Glover (apparently related to Mrs. Robinson as a part of the Glover family which had ancestors buried in the cemetery) in 1985 filed a notice of appeal in the superior court to the jury award of compensation (or lack thereof) seeking a jury trial on the issue of compensation assertedly due them as easement holders in the cemetery pursuant to OCGA § 32-3-14. This notice of appeal was filed by Mrs. Robinson and Mr. Glover on January 24,1985. As indicated hereinbefore, Mrs. Robinson had not received legal notice of the hearing on disposition of the cemetery issue nor any notice at all of the condemnation nor of the suit upon compensation and apparently no effort was ever made to serve Mr. Glover. The appellants seek to justify the filing of their notice of appeal in 1985, two years after the judgment of the compensation trial in 1983 and long after the judgment had become final, based upon the particular wording of § 32-3-14. Upon motion of DOT, the trial court entered an order of dismissal of the notice of appeal. It is the dismissal of their notice of appeal that forms the basis of this appeal. Held:

The language contained within OCGA § 32-3-14 upon which Robinson and Glover rely provides in substance that if any person having a claim against or an interest in the property condemned is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, that person shall have the right at any time subsequent to the filing of the declaration and deposit but not later than 30 days following the date of service upon the claimant to file with the court a notice of appeal. Mrs. Robinson and Mr. Glover concede that the jury trial and award of June 1983 were final but argue that they had an interest in the award of compensation as easement holders in part of the land condemned and have never been legally served; thus their notice of appeal constituted their acknowledgement of service and was timely. See Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418).

The filing of such a notice of appeal is regulated by and must follow the procedures for notice of service or lack thereof as provided in OCGA § 32-3-8. That code section provides in pertinent part that when a petition and declaration by the condemning authority has been filed, the condemnation process must be served upon the owner or any person having a claim against or interest in the condemned property. OCGA § 32-3-10 further provides that no construction of OCGA § 32-3-8 shall invalidate the intent of the condemnor or delay the taking of the property. Further at any stage of the proceeding but before final verdict and judgment, the superior court may order additional service on additional parties identified and named as may be required by equity or justice. OCGA § 32-3-5 requires the petition for condemnation to establish the property to be taken and the names and residences of any whose property interests are affected thereby, including persons or classes of unknown persons whose rights are to be affected. Notice of the intent to condemn must be served upon all parties named personally. OCGA § 32-3-17 provides in pertinent part that no provision of the condemnation chapter shall exclude any person by way of default from making known his rights or claims in the property or interests or in the fund arising therefrom. Such claimant should file such pleading or intervention before verdict and be fully heard thereon.

In interpreting these intertwined provisions of law, this court has construed the right to file an appeal seeking a jury trial on the issue of adequacy of condemnation. We have concluded that the right to file an appeal is not limited to the property owners. However, the proceeding is one in rem; thus it is the value of the property that is in issue. To decide the issue of those entitled to a share of the value of the property, the State is required to name those that its investigation has disclosed have an interest in the proceeds. Until those named have been served, or a proper reason for lack of service has been shown, the case is not ready for trial. All parties named by the State are parties at interest and have a right to participate as appellants in the jury trial. Knight v. Dept. of Transp., supra at p. 336. From the pleadings and the record, it is manifest that the DOT in the case sub judice never considered Mrs. Robinson nor Mr. Glover as persons having an interest in the proceeds of the condemnation proceedings other than as persons having an ancillary interest in the memorial dedicating the Gilbert Cemetery. We do not decide nor even consider whether Mrs. Robinson or Mr. Glover had an intrinsic right to intervene in the jury trial on the issue of value. We simply observe that they were not named as parties having an ownership or other interest in the valuation trial.

We should note that neither appellant attempted to avail themselves of their right to intervene in this action — if they had a proper interest — although it is certain that appellant Robinson received notice and appeared as a witness. An appearance without raising a purported lack of legal service can amount to waiver. See Williams v. Mells, 138 Ga. App. 60, 61 (225 SE2d 501). Further, there is no evidence that either appellant has sought relief from the judgment rendered. See OCGA § 9-11-60. The only action attempted is a belated appeal from a judgment to which they were not parties.

Decided January 4, 1988

Rehearing denied January 22, 1988

Jeffrey O. Bramlett, John E. Floyd, for appellants.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Charles M. Richards, Assistant Attorney General, for appellee.

The trial court in this case dismissed the appeal of Mrs. Robinson and Mr. Glover on the ground that they were not proper parties to file an appeal. It long has been the law of this state that one not a party to a proceeding in the trial courts and not a party to the judgment entered therein, cannot, in this court, prosecute a writ of error based on such a judgment. Holland v. Froklis, 89 Ga. App. 768 (1) (81 SE2d 317). This rule has been repeatedly reaffirmed always requiring service to be made upon the named condemnee. See Dept. of Transp. v. Brooks, 143 Ga. App. 872, 873 (240 SE2d 163); Knight v. Dept. of Transp., supra at p. 336. This requirement is nothing more than the simple reiteration of the rule that only a party to the case can appeal from a judgment, or one who has sought to become a party as by way of intervention and has been denied the right to do so. See Whitby v. Maloy, 145 Ga. App. 785, 788 (4) (245 SE2d 5). See also United States Fire Ins. Co. v. Farris, 146 Ga. App. 177 (245 SE2d 868). There being no evidence in this record that Mrs. Robinson or Mr. Glover were named as parties defendant in the action for condemnation nor that they ever actively sought to intervene in that action, the trial court did not err in dismissing the notice of appeal seeking a jury trial which was filed two years after the verdict and judgment in the valuation trial.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    75449.
    J. R. MABBETT & SON, INC. v. RIPLEY et al.
    (365 SE2d 155)
   McMurray, Presiding Judge.

Appellee Julius Howard Ripley sued appellant J. R. Mabbett & Son, Inc. (Mabbett) for injuries received in a fall from the top of a tanker trailer truck owned by Mabbett; his wife sought damages for loss of consortium. The jury found for Mr. Ripley in the amount of $55,000 in actual damages, and $10,000 for Mrs. Ripley. Judgment was entered on the verdict and Mabbett appeals from the denial of its motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Held:

1. The evidence, construed most strongly in support of the verdict and judgment, was as follows. Mabbett is a trucking firm that hauls fuel and other petroleum products to various customers in its tanker trailer trucks. Ripley was employed by General Motors Corporation (General Motors), a customer of Mabbett’s. Mabbett delivered fuel and petroleum products to General Motors three or four times a week, using tanker trailer #208 which was over five years old. It was the duty of Mabbett and its employees to inspect, maintain and repair trailer #208. To comply with Occupational Safety and Health Administration (OSHA) requirements and for general safety reasons, the top of trailer #208 was coated with a non-skid deck tread to be used as a walkway for the persons who had to seal, inspect and open the compartment lids located there.

At the origin of a shipment of products to General Motors, a Mabbett employee would walk along the top of trailer #208 with a one gallon can of petroleum based additive and pour it into the compartments. Upon delivery of a shipment at General Motors, it was the duty of a General Motors’ employee to walk along the top of trailer #208 and check and open the compartment seals. Over a period of time, General Motors’ employees had complained to Mabbett’s drivers on a number of occasions about the poor condition of trailer #208. The ladder to the top of the truck was in disrepair, the deck tread on the walkway was worn bare in spots and was sometimes slippery, and there were foreign substances on the walkway that were not always visible until stepped in. The general condition of trailer #208 was poor in comparison with trailers from other haulers making deliveries to General Motors. When trailer #208 was not in use it was left parked in an uncovered parking area, and remained at all times in the care and control of Mabbett employees.

At approximately 4:30 on the morning of April 19, 1983, trailer #208 arrived at General Motors with a delivery of fuel. The walkway on top was not inspected by the Mabbett driver upon arrival. Ripley performed his usual duties upon delivery, climbing up the ladder to the top of trailer #208, walking along the walkway to the front to check the seals and open the valve covers. Ripley had a reputation of performing his job duties in a safe manner, and wore work gloves, safety glasses and safety shoes with special non-skid soles. As he was returning from the front of the trailer to the ladder at the rear, which was the only way to get off the trailer, he stepped on a spot where the non-skid deck tread had been worn bare to the metal. He did not see any foreign substance prior to stepping on the bare spot, but when he stepped on it he recognized it from his many years of experience as being an oily, petroleum based product. Ripley’s feet shot out from underneath him, and having nothing to grab onto to keep from going over the side, he fell twelve feet to the concrete below, suffering broken bones and other traumatic injuries.

Appellant’s contention that it was entitled to judgment as a matter of law is based upon the unwarranted premise that this is simply a slip and fall case, where in order to recover the plaintiff must affirmatively establish that the defendant had actual or constructive knowledge of the condition or circumstances causing the fall and the plaintiff had no such actual or constructive knowledge. See, e.g., Alterman Properties v. Witherspoon, 183 Ga. App. 465, 468 (2) (359 SE2d 223) (1987). Such cases are analogous only because Ripley was an invitee on trailer #208 at the time he was injured and thus Mabbett owed him a duty to exercise ordinary care to keep the “premises” safe and/ or to warn him of any hidden dangers or defects. However, Mabbett had a common law duty to maintain, inspect, repair and keep its trailer trucks in safe operating condition and the failure to do so would constitute negligence on its part. See N. L. Indus. v. Madison, 176 Ga. App. 451 (1) (336 SE2d 574) (1985).

Mabbett also had a duty under both state and federal statutes to maintain its vehicles in safe condition at all times. OCGA § 46-7-68 (1). “Every motor carrier shall systematically inspect, repair and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its control.” Federal Motor Carrier Safety Regulations, 49 CFR, Ch. Ill, § 396.3 (10-1-86 ed.) Under OCGA § 46-7-78, failure to comply with the provisions governing motor common carriers constitutes a misdemeanor. “It is well settled that violation of a statute ... is negligence per se. [Cits.]” White v. Cline, 174 Ga. App. 448, 449 (2, 3) (330 SE2d 386) (1985); Cox v. Cantrell, 181 Ga. App. 722, 724 (5), 725 (353 SE2d 582) (1987). Clearly Mabbett owed a duty to Ripley, who was required by his job to use the walkway on top of trailer #208, to use reasonable care in inspecting the trailer and to keep it in such condition as to be used with reasonable safety. See Atlanta & West Point R. Co. v. Creel, 77 Ga. App. 77, 80 (1) (47 SE2d 762) (1948).

Trailmobile v. Smith, 181 Ga. App. 134 (351 SE2d 528) (1986) is likewise inapposite, and it was a products liability case alleging negligent design of or manufacturing defect in a tanker trailer truck. The plaintiff, in that case, was the driver of the tanker trailer and the person who was in control of its inspection, operation and maintenance. Thus, there was no duty to inspect, maintain, repair or keep the truck in safe operating condition owed by the defendant to the plaintiff in that case; nor was there any issue of the defendant’s negligence in keeping the walkway properly repaired or evidence that it was in disrepair. Inasmuch as no actionable design or defect was shown, this court did not consider whether OSHA standards were admissible to prove a design defect.

Here, however, there was ample evidence that Mabbett, which was in sole control of the care and repair of trailer #208, was negligent in permitting the deck tread required for safety reasons to become and remain worn in an environment where the tread was sometimes exposed to slippery substances. The appellee Mr. Ripley had no control over the inspection, operation or maintenance of Mabbett’s truck and had the right to expect that Mabbett would fulfill its common law and statutory duty to keep the truck in safe repair. Ripley had no choice as to whether he would go to the top of trailer #208 as this was a necessary consequence of his employment, and had no safer alternative for performing his duties than to use the walkway. On April 19, 1983, Ripley had no way of ascertaining the condition of the deck tread before going on top of the trailer, and no knowledge of the specific defect, to wit, the worn bare spot on the tread covered with an oily substance, until he stepped on it and fell.

“The issues presented to the jury were whether [Mabbett] had or should have had requisite knowledge of the defective condition of the [deck tread] and whether [it was] negligent in inspecting and maintaining [trailer #208]. The evidence enunciated above was sufficient for the trial court to properly place the issues before the jury with proper instructions, and it was sufficient for the jury to have rendered a verdict favorable to [Ripley.] . . . On appeal, this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict, and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. ... We will not weigh the evidence and in fact are precluded from doing so . . .In considering the motions for directed verdict and for judgment n.o.v., this court must view the evidence in the light most favorable to the party who secured the jury verdict. . . . Applying the evidence enunciated above in this case, we find no error in the trial court’s denial of [Mabbett’s] motions for directed verdict and for judgment notwithstanding the verdict.” Wilson v. Pickels, 181 Ga. App. 293, 294, 295 (352 SE2d 208) (1986). Accord Harmon v. Cova, 180 Ga. App. 805 (1) (350 SE2d 774) (1986).

2. Appellant complains that the trial court erroneously refused to give its requested charge on accident. The defense of accident is inapplicable in the case sub judice in view of the evidence of safety violations in that appellant had negligently permitted the deck tread on trailer #208 to become worn, and the inference that the presence of the oily substance on the walkway was caused by appellant’s employee negligently pouring the petroleum additive prior to the delivery to General Motors. “The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). Thus where there is a violation of a statute constituting negligence per se, an instruction on legal accident is improper. Cox v. Cantrell, 181 Ga. App. 722, 724 (5), 725, supra; White v. Cline, 174 Ga. App. 448, 449 (2, 3), supra.

3. Appellant asserts error in the trial court’s denial of its motion to set off the workers’ compensation benefits paid to Ripley by his employer, General Motors. There is “a right of set-off in the general sense that the parties to a suit are entitled to set-off ‘mutual demands existing at the time of the commencement of the suit . . .’ OCGA § 13-7-5. However, this type of set-off ‘does not operate as a denial of the plaintiff’s claim; rather it allows the defendant to set-off a debt owed him by the plaintiff against the claim of the plaintiff.’ OCGA § 13-7-1. As such, it must be asserted as a counterclaim rather than a defense. [Cit.]” National City Bank of Rome v. Busbin, 175 Ga. App. 103, 105-06 (3) (332 SE2d 678) (1985). Appellant’s motion for set-off was not asserted as a counterclaim alleging negligence on the part of General Motors, but was based upon Mabbett’s purported right to “take advantage of’ any payments General Motors, as a joint tortfeasor, had made “under the joint and several liability theory.” Thus it appears that what appellant actually sought was some sort of contribution in the form of subtraction of the workers’ compensation benefits paid by General Motors from any award of damages against Mabbett.

It is undisputed that General Motors was Ripley’s “statutory employer” for workers’ compensation purposes. It has been repeatedly held that OCGA § 34-9-11 grants an injured employee’s employer statutory immunity from suit by the employee to recover damages other than workers’ compensation benefits. Likewise, “such an employer cannot be a joint tortfeasor subject to contribution. [Cit.] Inasmuch as the right of contribution depends upon the status of joint tortfeasor, if the statutory employer is not as a matter of law a joint tortfeasor there cannot be a right of action by the injured employee or by another defendant against an employer as a contributor. [Cit.]” Modlin v. Swift Textiles, 180 Ga. App. 726, 731 (2) (350 SE2d 273) (1986). An employer who has been required to pay workers’ compensation benefits to an injured employee cannot be considered as a joint tortfeasor “whether or not the employer’s negligence combined with that of a third party to produce the employee’s injuries. . . . [Cits.]” Georgia Power Co. v. Diamond, 130 Ga. App. 268, 269 (4) (202 SE2d 704) (1973). See also Intex Prods. v. Roper Corp., 160 Ga. App. 579 (287 SE2d 610) (1981); Georgia State Telephone Co. v. Scarboro, 148 Ga. App. 390, 391 (1) (251 SE2d 309) (1978). The issue of General Motors’ sole or joint negligence as the proximate cause of Ripley’s injuries was neither presented to nor determined by the jury in this case. Therefore, appellant is barred as a matter of law from diminishing the amount of its liability as a wrongdoer by setting off the workers’ compensation benefits paid to Ripley by General Motors. See generally Sargent Indus. v. Delta Air Lines, 251 Ga. 91, 94, 95 (fn. 1) (303 SE2d 108) (1983); Butler v. Super Valu Stores, 633 FSupp. 1164 (N.D. Ga. 1986). It follows that appellant’s motion was correctly denied.

Decided January 22, 1988.

John E. Hall, Jr., Michael G. Frick, for appellant.

Thomas H. Nickerson, David E. Tuszynski, for appellees.

Judgment affirmed.

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


text:
    75488.
    LOWE v. THE STATE.
    (365 SE2d 479)
   McMurray, Presiding Judge.

Appeal is brought from appellant’s conviction of rape and robbery.

The evidence adduced at trial, viewed in the light most favorable to the verdict of the jury, was as follows: The victim was attacked from behind while walking to her home from a Metropolitan Atlanta Rapid Transit Authority station at about 11:00 p.m. She was dragged away from the street and raped while she was partially undressed. Her assailant held her by the throat and threatened to kill her if she did not stop crying and struggling. When ordered to stand up and completely undress she was able to escape, and ran home. Her purse containing $160 from her pay check was taken. Based on her description the police made a composite sketch of the attacker, from which appellant was recognized by a detective. Appellant was requested to come and have his picture made for a photo line-up, which he did. The victim positively identified appellant from the photo line-up as the man who attacked her and he was arrested. A physical line-up was conducted, during which all of the men were asked to say, “I do dope and I need a fix.” The victim again positively identified appellant as her assailant. The victim’s purse was recovered from behind an apartment complex on the same street where appellant’s mother lives. Appellant denied commission of the crimes. His girl friend and two of his friends, both of whom are convicted felons, testified that appellant was with them at his home on the night in question. Held:

Decided January 22, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, R. Stephen Roberts, Assistant District Attorney, for appellee.

1. Appellant’s enumeration of error based on the general grounds is without merit. The evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Devane v. State, 183 Ga. App. 60 (1) (357 SE2d 819) (1987); Ford v. State, 180 Ga. App. 807 (1) (350 SE2d 816) (1986); Davis v. State, 180 Ga. App. 190, 192 (3) (348 SE2d 730) (1986).

2. In his second (and last) enumeration appellant contends the trial court erred “in allowing evidence concerning appellant’s voice” and urges “this Court to overrule its cases concerning voice samples which are in conflict with the Georgia Constitutional protection against self-incrimination, and are logically inconsistent with analogous cases involving other acts.” See, e.g., Jenkins v. State, 167 Ga. App. 840 (1) (308 SE2d 14) (1983); Clark v. State, 166 Ga. App. 366, 368 (3) (304 SE2d 494) (1983); Tate v. State, 153 Ga. App. 508, 510 (2) (265 SE2d 818) (1980). We reject appellant’s arguments urging that we overrule these cases and, instead, “will adhere to the rule of identification stated by the Supreme Court in Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281), to wit: ‘ “Identity is a question for the trior of fact, and where a witness identifies a defendant (whether the identification be based on the defendant’s eyes, clothes, hairline or some intangible factor not capable of description), the credibility of the witness making such identification is not to be decided by this court.” ’ Under the evidence presented to the jury in this case, the jury certainly was warranted in concluding that the voice of the perpetrator on the night of the [crimes] was identified by a competent witness upon credible testimony as being that of the defendant. [Cits.]” Jenkins v. State, 167 Ga. App. 840, supra at 842. We find no grounds for reversal.

Judgment affirmed.

Sognier and Beasley, JJ., concur.