author: Pope, Chief Judge.

text:
    A94A0028.
    WHITMAN v. STATE OF GEORGIA.
    (442 SE2d 313)
   Pope, Chief Judge.

Accused of misdemeanor child abandonment, defendant Mark Whitman pled not guilty and denied paternity. After a bench trial defendant was acquitted on the general grounds, yet appeals from that judgment of acquittal, contending that he was entitled to a binding determination that he was, in fact, not the father of the allegedly abandoned child.

1. The State’s motion to dismiss this appeal, premised upon the authority of White v. State, 160 Ga. App. 857 (288 SE2d 574) (1982), is denied. See Burns v. State, 252 Ga. 140 (1) (312 SE2d 317) (1984).

2. The parties have been unable to locate the transcript of the proceedings. Rather than re-create the record pursuant to OCGA § 5-6-41 (g) or (i), they rely upon the following facts, as recited in the order of the trial court: At the call of his case, defendant consented to a bench trial and announced ready. The State then stipulated that the evidence would not be sufficient to show either defendant’s paternity or his wilful abandonment beyond a reasonable doubt. It was also stipulated that, were defendant to testify, he would deny paternity. Defendant requested that the trial court make a specific finding of non-paternity. The trial court entered a general judgment of acquittal upon the criminal charge of abandonment. However, the court concluded that the evidence of paternity was inconclusive such that the court could not determine whether defendant “is or is not” the father.

Defendant contends that, under the undisputed facts, he was entitled to judgment declaring that he is not the father, pursuant to OCGA § 19-10-1 (i). That Code section provides, in pertinent part, that where the accused contends that he is not the father, the judge “shall charge the jury that if its verdict is for the acquittal of the person and its reason for so finding is that the [accused] is not the father ... of the child alleged to have been abandoned, then its verdict shall so state.” (Emphasis supplied.) Id. Likewise, if, after a bench trial, the court renders a judgment of acquittal based on the contention that the accused is not the father, then “the trial judge shall so state this fact.” Id. A judgment of acquittal based on the ground that the accused is not the father “shall be a bar to all civil and criminal proceedings attempting to compel the person to support the child.” Id.

OCGA § 19-10-1 (i) is an exception to the use of a general verdict form in criminal cases as provided by OCGA § 17-9-2. It authorizes but does not require the trier of fact to return a special verdict as to the issue of paternity. In order to return the special verdict of acquittal authorized by OCGA § 19-10-1 (i), the trier of fact must be convinced by a preponderance of the evidence that the defendant is not in fact the natural parent of the abandoned child. The trial judge here, as the finder of fact, was authorized to disbelieve defendant’s self-serving statement that he was not the father and conclude that the evidence was inconclusive as to paternity. Defendant’s argument that, because the State has failed to prove paternity beyond a reasonable doubt, the opposite fact has been established, is without merit. “[A]n adjudication of paternity by conviction of abandonment of a child is conclusive of paternity in any subsequent civil proceedings to compel support for the child.” Cummings v. Carter, 155 Ga. App. 688, 689 (272 SE2d 552) (1980). The converse proposition, however, does not follow. The failure to prove paternity beyond a reasonable doubt does not necessarily mean that the defendant is not the father of the abandoned child. In this regard, we disapprove of the suggested pattern jury instruction as to the form of the verdict. The pattern charge should simply state that where the jury finds “that the defendant is not the parent of the child ... , in that event you should acquit the defendant, and the form of your verdict would be: ‘We the jury, find the defendant not guilty by reason of the fact that [he] is not the parent of the child.'" (Emphasis supplied.) The pattern charge should exclude the language which suggests that a “reasonable doubt” concerning paternity mandates a special verdict. When the jury entertains this reasonable doubt as to the parentage of the defendant without being convinced that defendant is not the parent, the only authorized form of the verdict is a general acquittal. Neither party here took advantage of blood testing in an effort to inject scientific objectivity into the pertinent inquiry. The evidence did not demand a finding that defendant is not the father. The judgment of the trial court acquitting defendant of abandonment, without making a finding of paternity, is affirmed.

Decided March 22, 1994.

William G. Quinn III, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Assistant Solicitor, Yvonne. A. Twyman-Williams, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A93A2133.
    KRASAEATH v. PARKER.
    (441 SE2d 868)
   Beasley, Presiding Judge.

Interlocutory review is given to the denial of Krasaeath’s motion to dismiss plaintiff’s complaint, made on the basis that the action is in essence one for medical malpractice. At issue is whether the action is maintainable under a twenty-year statute of limitation for actions for contribution between joint tortfeasors, OCGA §§ 51-12-32 and 23-2-71, or whether it is barred by the five-year statute of repose for medical malpractice actions, OCGA § 9-3-73. In this case of first impression, we hold that the latter statute bars plaintiff’s claim.

Plaintiff sought contribution based on an earlier medical malpractice action she filed on August 26, 1988. It was alleged that plaintiff’s decedent (her son) presented at Meadows Memorial Hospital on September 3, 1986, complaining of chest pain and shortness of breath. He was evaluated by emergency room physician Martin. Chest x-rays were ordered and were interpreted as normal by appellant Dr. Krasaeath, a radiologist. The patient was discharged from the hospital but returned two days later and was found to have a pulmonary embolus, from which he died.

Dr. Martin, but not Dr. Krasaeath, was among the multiple defendants named in that medical malpractice action. On September 26, 1990, Ms. Parker settled with Dr. Martin for $325,000 and obtained an assignment of his right of contribution.

On May 5, 1992, more than five years and eight months after the treatment of her son, Ms. Parker as assignee of Dr. Martin filed the present “complaint for contribution,” naming Dr. Krasaeath and his insurer as party defendants. The insurance carrier was voluntarily dismissed by consent order. The complaint alleged that Dr. Krasaeath “was negligent and fell below the standard of care required of physicians generally in connection with his care and treatment of [the decedent], in particular, his interpretation of x-ray studies,” and that his negligence proximately resulted in the decedent’s injuries and death. An OCGA § 9-11-9.1 expert’s affidavit was filed with the complaint, according to plaintiff, “out of an abundance of caution.”

1. As is evident in the complaint, the claim for contribution is predicated upon proof that Dr. Krasaeath was a joint tortfeasor along with Dr. Martin in acts of negligence relating to plaintiff’s decedent. His liability for contribution depends solely on whether he was negligent in his professional capacity. “Contribution exists between joint wrongdoers whose several acts of negligence combine to injure the plaintiff.” Travelers Indent. Co. v. Liberty Loan Corp. of Poplar, 140 Ga. App. 458 (231 SE2d 399) (1976).

A claim for contribution may be brought as a separate independent suit after a judgment is entered in the underlying tort action, Tenneco Oil Co. v. Templin, 201 Ga. App. 30 (1) (410 SE2d 154) (1991), and it is not required that the party against whom contribution is sought was named in the original action, OCGA § 51-12-32. The 20-year statute of limitation for contribution actions is governed by OCGA § 9-3-22. See Independent Mfg. Co. v. Auto. Products, 141 Ga. App. 518 (1) (233 SE2d 874) (1977) and Champion v. Wells, 139 Ga. App. 759, 762 (229 SE2d 479) (1976), both decided under the predecessor to OCGA § 9-3-22.

“In 1985, the legislature enacted a five-year statute of repose for medical malpractice cases. In pertinent part it reads: ‘Notwithstanding (the two-year statute of limitation), in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.’ OCGA § 9-3-71 (b). Subsection (c) of the same statute goes further and provides: ‘Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.’ OCGA § 9-3-71 (c).” (Indentions omitted.) Wright v. Robinson, 262 Ga. 844, 845 (1) (426 SE2d 870) (1993).

The legislative intent is explained in OCGA § 9-3-73 (f): “The findings of the General Assembly under this Code section include, without limitation, that a reasonable relationship exists between the provisions, goals, and classifications of this Code section and the rational, legitimate state objectives of providing quality health care, assuring the availability of physicians, preventing the curtailment of medical services, stabilizing insurance and medical costs, . . . and providing for the public safety, health, and welfare as a whole.”

Hill v. Fordham, 186 Ga. App. 354, 357 (2) (367 SE2d 128) (1988), distinguishes between statutes of limitation and repose: “A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. [Cit.] ... A statute of ultimate repose sets an ultimate limit on which injuries shall be actionable.”

Decided February 28, 1994

Reconsideration denied March 23, 1994

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, for appellant.

Bennett, Callahan & Schloegel, Michael T. Bennett, Jennifer T. Schloegel, Edward J. Walsh, Hugh B. McNatt, for appellee.

When faced in other situations with issues of whether a statutory right of recovery must yield to a statute of repose, our courts have held that the ultimate statute of repose prevails. In Hatcher v. Allied Products Corp., 256 Ga. 100 (1) (344 SE2d 418) (1986), the Court determined that a ten-year statute of repose applicable to products liability actions served as a complete bar to an action regardless of any applicable statutes of limitation. In Siler v. Block, 263 Ga. 257 (429 SE2d 523) (1993), the statute of repose barred the refiling of a medical malpractice claim which would otherwise have been allowed within the renewal provision of OCGA § 9-2-61. Likewise, Wright, supra, held that the expiration of the medical malpractice statute of repose bars renewal of a claim under OCGA § 9-2-61. The Court reasoned: “Both logic and the plain language of the statutes lead us to conclude that the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose.” Id. at 846.

The same logic applies here. Although the claim is couched as one for contribution, and but for the statute of repose would have been timely, substance prevails over form. Recovery is predicated on proof of Dr. Krasaeath’s professional negligence. The statute of repose specifies that “in no event” may a claim for medical malpractice be brought more than five years after the negligent act or omission occurred. Recovery could have been sought against Dr. Krasaeath at various times in this litigation: as a defendant in the original action; by impleading him as a third-party defendant in that suit under OCGA § 9-11-14 (a); in a separate action for contribution brought by Ms. Parker after settlement with Dr. Martin and within the five-year statute of repose. Plaintiff cannot be permitted to do indirectly what the law does not permit her to do directly. That is, she cannot in effect hold Dr. Krasaeath liable for professional negligence through a dilatory third-party action for contribution. Logic and fairness dictate the conclusion that the present claim came too late.

2. It is unnecessary to reach appellant’s laches defense.

Judgment reversed.

Cooper and Smith, JJ., concur.


text:
    A93A2228.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. CARTER.
    (442 SE2d 269)
   Pope, Chief Judge.

Plaintiff, a railroad worker, brought this action under the Federal Employers’ Liability Act (FELA), 45 USCA § 51, for injuries sustained as the result of defendant’s alleged violation of the Automatic Coupler Act, 45 USCA § 2, a section of the Safety Appliance Act, 45 USCA §§ l-43a. Defendant appeals from a judgment entered on a jury verdict for plaintiff in the amount of $l,025,645.20-$862,382 in special damages and $163,363.20 in general damages.

At the time of his accident, plaintiff had been working for defendant railroad for more than 20 years and was very skilled at his job. One of his work duties was the uncoupling of train cars. This is done by jogging alongside a slowly moving train and grabbing and pulling a device called a cutlever, which releases the pin holding the cars together. Evidence showed that on the morning of plaintiff’s accident, the cutlever did not release when plaintiff pulled it, even though the cars were moving at the proper speed and plaintiff exerted reasonable effort. The effect of the cutlever’s failure to release was to jerk plaintiff’s body, causing him some back pain, which he mentioned to his co-workers at lunch. Plaintiff did not think the pain was an indication of any real injury, however, and did not report the injury or the problem with the cutlever to management. Although plaintiff continued to work that day, he could hardly move the next morning. He went to the emergency room and was subsequently hospitalized. He tried traction and physical therapy, but eventually had to have surgery. Although plaintiff is better, he will never again be able to do railroad work, the only work he has done as an adult. He is capable of performing work which does not require lifting, bending or sitting for long periods of time, but his efforts to find such work have been unavailing. He continues to look, but he is in his mid-forties, has no college and no job skills, and now has a history of back problems which he must disclose on any job application.

1. Defendant first contends that the trial court’s jury instruction regarding what plaintiff had to show to establish a violation of the Automatic Coupler Act was erroneous. The court told the jury “the plaintiff must prove that the automatic coupler device did not work in the manner it was designed to operate when reasonable effort was made in the proper manner of operating it, or the plaintiff must prove that the automatic coupler device was defective.” Specifically, defendant asserts that the court should have used “and” rather than “or” to join the two clauses, and that its failure to do so required the jurors to find a violation of the Act if they believed the cutlever did not work on this one occasion, even if they concluded that the cutlever device in question was not actually defective.

The Automatic Coupler Act provides: “It shall be unlawful for any railroad to haul or permit to be hauled or used on its line any car not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” 45 USCA § 2. If a railroad’s coupling or uncoupling equipment does not meet the requirements of this Act and a worker is injured as a result, the railroad is automatically liable for damages. O’Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384 (70 SC 200, 94 LE 187) (1949); Coleman v. Burlington Northern, 681 F2d 542 (8th Cir. 1982). It is error to instruct the jury that the failure of a device to operate on one occasion is conclusive evidence that the Act has been violated, see, e.g., Devaney v. Atchison, T. & S. F. R. Co., 27 P2d 635 (Cal. 1933), for the railroad may defend the action by showing that the equipment was fine but did not operate properly on this occasion because the devices were not operated in the proper manner. See Reed v. Philadelphia &c. R. Co., 939 F2d 128 (3rd Cir. 1991) (defendant may defend on grounds device failed to operate because cars were not properly positioned); McCalley v. Seaboard C. L. R. Co., 252 S2d 275 (Fla. Dist. Ct. App. 1971), rev’d on other grounds, 265 S2d 11 (Fla. 1972) (defendant may defend on grounds device failed to operate because of inadequate slack in line). But see Leveck v. Consolidated Rail Corp., 498 NE2d 529 (111. App. 1986) (railroad absolutely liable where equipment fails to operate, even if failure is caused by improper position of cars). But if the railroad is unable to show that the failure was due to improper operation, the one incident of failure does establish a violation of the Act as a matter of law. See Cobb v. Union R. Co., 318 F2d 33 (6th Cir. 1963). In this case, defendant presented evidence suggesting that the failure of the cutlever device in this case may have been caused by an improper amount of slack in the line. We think the trial court’s instruction that a violation would be established if the device failed to release when operated in a proper manner adequately conveyed the law as applied to this case: if the failure to operate was due to an improper amount of slack in the line, the failure to release did not establish a violation, but if the slack in the line was proper and the device still failed to operate, the failure did establish a violation. See also Burho v. Minneapolis S. L. R. Co., 141 NW 300 (Minn. 1913) (a device which fails to work when reasonable effort is made to operate it in proper manner does not comply with requirements of Act). It is possible that an instruction giving further explanation might have been preferable. Because defendant submitted no written requests to charge, however, it cannot now complain about an adequate charge on the grounds that further explanation was desireable. See Elam v. Atlantic C. L. R. Co., 115 Ga. App. 656 (4) (155 SE2d 644) (1967).

2. Defendant next argues that the trial court erred in granting plaintiffs motion in limine excluding evidence that plaintiff had been discharged by defendant for reasons other than his physical inability to work. As a result, defendant argues, the jury inflated their evaluation of plaintiff’s damages based on the assumption that plaintiff would have continued to work for the railroad had this accident not occurred. Contrary to defendant’s assertion, however, the trial court did not grant a motion in limine precluding such evidence. Instead, the trial court granted a motion in limine requiring defendant to approach the bench if and when it wished to introduce such evidence, and the matter would “be dealt with as it comes up.” Defendant never tried to introduce evidence of plaintiff’s discharge, so the matter was never decided by the trial court. In any case, defendant’s premise that the fact of discharge is relevant to lessen plaintiff’s damages is faulty. The record reveals that after plaintiff filed his claim against defendant, defendant took the position that plaintiff’s claim was without basis and fired him for filing it. Thus, the discharge clearly resulted from plaintiff’s accident and resulting back injury, even if it was not based on plaintiff’s physical inability to perform the job.

3. Defendant’s contention that a new trial is necessary because the jury’s verdict is grossly excessive is also without merit. In FELA cases, “ ‘[t]he jury’s determination of the amount of damages to be awarded is . . . inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.” ’ [Cit.]” Southern R. Co. v. Minor, 196 Ga. App. 183, 185 (4) (395 SE2d 845) (1990). Because “[questions as to the proper measure of damages in FELA cases are governed by general principles of law established by the federal courts,” the revision of OCGA § 51-12-12 in 1987 did not modify the principles applicable to FELA cases. Id. And contrary to defendant’s assertion, this standard is the same regardless of whether it is being applied by a trial court on motion for new trial or by the appellate court on appeal. The verdict in this case is not shocking and is consistent with the preponderance of evidence in the case. Indeed, the amount awarded in special damages is exactly what plaintiff’s economist — the only witness who testified about damages — said plaintiff’s damages would be if plaintiff is unable to obtain any other employment. Although there was evidence that plaintiff is physically able to perform work which does not require lifting, bending or sitting for long periods of time, there was also evidence tending to show that it will be quite difficult if not impossible for him to find such work.

Decided March 8, 1994

Reconsideration denied March 23, 1994

Farkas & Ledford, Leonard Farkas, Hall, Bloch, Garland & Meyer, F. Kennedy Hall, J. Steven Stewart, for appellant.

Burge & Wettermark, Michael J. Warshauer, for appellee.

4. Defendant next contends that the special damages verdict was improper because the verdict form indicated the special damages were “lost wages” and the figure awarded included the value of lost health and pension benefits as well as actual wages. As lost benefits are special damages which go along with lost wages as part of lost income, this enumeration of error is patently without merit.

5. Lastly, the trial court did not err in admitting the medical record from Dr. Roy as an exception to the hearsay rule pursuant to OCGA § 24-3-4.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       As part of the 1987 Tort Reform Act, the Georgia Legislature provided in OCGA § 51-12-12 (a) that the trial court could interfere with the jury’s verdict if it is so excessive as to be inconsistent with the preponderance of the evidence in the case; an inference of gross mistake or undue bias is no longer necessary in cases based on state tort law.


author: Andrews, Judge.

text:
    A93A2470.
    A93A2472.
    CAIN v. THE STATE. COCHRAN v. THE STATE.
    (442 SE2d 279)
   Andrews, Judge.

Cain and Cochran appeal the judgments entered on their convictions of armed robbery, aggravated assault, and possession of a firearm during commission of a felony. Cain also appeals his conviction of kidnapping. The appeals are considered together.

Viewed in favor of the verdict, the evidence was that co-defendant Thomas and Cochran had been dismissed from the Candler Road Winn Dixie Store in the summer of 1991, before the arrival of Manager Smith. Smith was familiar with the two men, however, and had specifically told Cochran to stay away from the store. On Friday evening, August 16, Smith noticed Cochran and Thomas enter the store around 9:30 or 10:00 p.m. He mentioned this to bookkeeper Howard, who was in the office in front of the store getting ready to tally the day’s proceeds. She noticed both men, whom she knew, enter the store followed by two other men whom she did not recognize. The four walked single file across the lobby and went through a register line instead of going around, as intended.

Smith went after Thomas and Cochran and found them off the sales floor area near the motor room and storage room. Cochran was standing beyond the rest room and said he was waiting on Thomas. Because he had a “funny feeling,” Smith thoroughly checked the motor room, but found no one. Although Smith was unaware, of it because of his recent transfer to this store, there was an area referred to as “the hole” located near the motor room. This area was used by supervisors to monitor the entire stock floor from a cut out above the meat department. It measured about two-and-one-half by four feet and could accommodate two people. After Thomas exited the rest room, Smith asked Thomas and Cochran to leave the store and Howard saw them both in the exit area. The store closed at 11:00 p.m. After all other employees had left the store and the doors had been locked, Howard counted all the cash register tills and balanced the receipts. Because there was a mistake with some checks, the final tally took longer than usual. Smith and Coffey, the assistant manager, regularly stayed with Howard until she was finished.

As she was completing her tally around 12:30 a.m. (now August 17), she, Smith, and Coffey heard someone running down the aisle and shouting. They saw two males, one taller than the other and wearing a red Winn Dixie meat cutter’s apron over his clothes and a hat. He was brandishing a .45 automatic pistol. The shorter man had a hooded sweatshirt on. One of them was wearing a “Ninja” mask.

The two men were shouting obscenities and ordered all three employees to lie on the floor of the small office, which they did. Howard surreptitiously took off her wedding rings and slipped them under a cabinet because she and her husband had promised to be buried in them. The man with the .45 pistol continued to threaten the three while the other man rifled the safe, removing a minimum of $1,500. Both Smith and Coffey had the pistol pressed to their heads while lying on the floor, and, while it was pressed against Coffey’s, the slide was operated and a bullet placed in the chamber. During the entire episode, both robbers kept saying “one of you white m--f---is going to die,” and asking who wanted to go first.

After emptying the safe and pilfering the wallets of Smith and Coffey, the three employees were forced at gunpoint to crawl down an aisle of the store toward the back. One of the robbers demanded something to tie them with and Coffey directed him to the extension cords. The three employees were then hogtied. At this point, Howard heard a comment about a “fine white a—,” and one of the robbers demanded that she remove her slacks. She was fondled while other obscene comments were made until the other man said they did not have time “for this” and the two men left the store. The employees got loose and called police. All three employees were familiar with Thomas’ and Cochran’s voices and did not believe that they were the two robbers.

Detective Bumgardner received information from an unidentified informant which led him to Thomas on the evening of August 17. At that time, he and other officers went to Thomas’ apartment in a complex located within walking distance of Winn Dixie. Before knocking on the door, Bumgardner heard whispering behind the door. Upon knocking, the door was opened by Thomas’ wife, who was told the officers wanted to talk about her husband. She asked them into the apartment and told them her husband was at the mall and there was no one else in the apartment. The officers heard something hit the wall in a bedroom. Asked again if anyone else was in the apartment, she said Cochran was there. She consented to a search of the apartment and the officers found Cochran in the child’s bedroom and Thomas in the closet in the master bedroom. Thomas gave a false name initially. When Thomas was removed from the closet, the officers recovered $201 in cash from underneath him, including a marked five from the Winn Dixie. Underneath the mattress they found another $311, which Thomas contended was rent money and not part of the robbery proceeds.

Prior to arresting Thomas and Cochran, Detective Bumgardner had interviewed co-defendant Cook. Cook and Cochran gave statements to the detectives acknowledging that they and Thomas and Cain had discussed robbing the Winn Dixie for about three weeks beforehand. Cook and Cochran acknowledged participating in the robbery, but only as lookouts.

Thomas testified at trial and said that he, Cochran, Cook, and Cain went into the store together the evening of the robbery and he and Cochran were in the back area when found by Smith. While he did not see Cook and Cain enter the “hole,” as they were leaving the store, Cochran told him they were “up in that store.”

Thomas said he and Cochran were the lookouts and saw Cain and Cook exit the store and run into the woods where they were waiting. They counted the money in Thomas’ apartment and it was more than $2,000. Thomas said he and Cochran each got $75 and that part of the money he was sitting on when caught was Cochran’s.

Cain, who is 6' 5" tall, testified in his own behalf and said that, on the evening of August 16, Thomas came to his apartment, located in the same complex, about 10:00 p.m. and asked if Cain was ready to rob the Winn Dixie, which they, along with Cook and Thomas, had been discussing for some time. While walking through the apartments, Cain said they ran into Jones, a friend of his, and told Jones they were going to hit the Winn Dixie. Cain testified that, at that point, because Jones advised him not to do it, he withdrew from the plan. Instead of robbing the store, he and Jones visited two girls elsewhere. Jones and Freeman, one of the girls, testified as alibi witnesses.

Case No. A93A2470

1. Cain’s third enumeration is that the court erred in admitting proof of a similar incident.

On August 12, 1991, the M & T Store, a convenience store, was robbed. The store is located in the same area as the Winn Dixie. According to Omeni, the clerk, around 5:30 p.m., two men walked into the store, one tall and bearing a gun. The shorter man stood by the door. The tall man pointed the gun at the clerk’s face and said “M--f--, open that G— d— register.” Although the man had a “wave cap,” a stocking-like cap, pulled over his face, he removed it when the two ran out into the parking lot, and the clerk saw his face. The clerk was shown two photo spreads and identified Cain as the tall man with the gun and Cook as the one who blocked the door.

This crime and a similar act introduced against Cochran were originally included in the indictment but were severed from the Winn Dixie case on motions by Cain and Cochran. After pretrial notice and hearing pursuant to USCR 31.3, the court concluded that the incidents could properly be introduced as “similar transactions.” Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991); see Parks v. State, 199 Ga. App. 736, 737 (1) (406 SE2d 229) (1991).

Cain did file a motion in limine relating to the like act, but it alleged only that the State was attempting to circumvent the trial court’s severance of the counts of the indictment alleging these crimes and that introduction of it would be “prejudicial.” This latter objection is too vague and general to present any question for determination by the trial court or this one. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987). As the court explained on the former issue, the severance was primarily granted to prevent unfairness to other co-defendants, who were not involved in these similar acts, and this would not impact the admissibility of the “similar transactions” evidence. During argument, Cain did raise the lack of similarity of the crimes under Williams, and we consider this.

Here, both the M & T and Winn Dixie robberies were committed by two males, one brandishing a pistol and using similar obscene language in his demands for money; both stores were located within a short distance of each other and close to the apartment complex where Cain and Cook resided; both were conducted without the use of any observed transportation, indicating the perpetrators arrived and left on foot. The evidence was properly admitted. Hickey v. State, 202 Ga. App. 636 (415 SE2d 60) (1992); Parks, supra; Lord v. State, 199 Ga. App. 814, 816 (1a) (406 SE2d 137) (1991).

2. Cain’s first enumeration is that the court erred in not granting his motion for mistrial made during the opening statement by the prosecutor.

The prosecutor stated: “You will hear some evidence about an individual named Ezra or Ezria Williams. Often times in a criminal case when there are witnesses to an incident, they don’t always stick around. Mr. Williams apparently gave a statement to the police about what he knew what had happened in this case. Our investigators have been trying to find him. Our last information that we have is he is somewhere in New Jersey. His parents here don’t keep track of him. He went up to New York to visit his sister and his sister kicked him out. So please don’t let that —” At this point, Cain moved for a mistrial contending that the prosecutor had alluded to an unavailable witness “that is unavailable that would have some great information for them,” and left the jury with the impression that the man had run away because of these dangerous individuals and “would have really nailed them if he was here.”

The court denied the mistrial, but did sustain the objection that this was improper argument and instruct the jury that what counsel said was not evidence and the only evidence would come from the stand. Further, with regard to the missing witness, the court instructed that “any inference that there might be something else there that is not legally admissible, you are to disregard entirely.”

“ ‘The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]’ Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315). The circumstances of [this] case ... do not reveal an abuse of the trial court’s discretion in denying defendant’s motion for mistrial. Curative instructions were promptly given. . . .” Powell v. State, 201 Ga. App. 188, 189 (2) (410 SE2d 378) (1991). See Russell v. State, 184 Ga. App. 657, 658 (1) (362 SE2d 392) (1987).

3. The second enumeration contends the court erred by not granting a mistrial after a comment by the prosecutor improperly shifted the burden of proof.

During the direct examination of Detective Bumgardner regarding the search of Thomases’ apartment, the prosecutor asked the detective about a conversation with Mrs. Thomas which took place out of the presence of any defendant. A hearsay objection was made by counsel for Cochran, to which the prosecutor responded that she thought the detective could go into the conversation “without it being hearsay.” The court then inquired “How can they cross-examine Ms. Thomas?” The prosecutor, in the presence of the jury, responded, “They can call her to the witness stand. She is available as a witness in the case.” The court replied that the defendants “are not required to do that,” at which point Cain moved for a mistrial.

The court denied a mistrial but instructed the jury that the defense was “under no obligation to offer any evidence, it is not compelled, cannot be compelled to testify, that is something that is freely up to the individual, and [the prosecutor] knows perfectly well that there is no reason that the defendant [has] to offer any evidence. That was an improper statement . . . I . . . instruct you to disregard that. It is up to the defendant to decide any way however the defendant wants to handle its case.”

No renewal of the motion for mistrial was made after the curative instructions were given and there was no error. Mack v. State, 208 Ga. App. 513, 514 (430 SE2d 862) (1993); Lewallen v. State, 208 Ga. App. 138, 139 (429 SE2d 684) (1993).

4. Cain also objects to the court’s allowance into evidence of hearsay threats made to Omeni, the clerk in the M & T robbery. The record reflects that Omeni was extremely nervous during his testimony and indicated that he had reason to be afraid about coming to testify.

During a bench conference, Cain objected that the incident about to be described improperly placed his character in evidence. The State responded that the statement was not being introduced for its truth, only to prove it was said and to explain Omeni’s conduct during the trial.

The court, relying on Walker v. State, 187 Ga. App. 631, 633 (371 SE2d 199) (1988), allowed Omeni to testify that he was afraid to come to court because a woman had called him on the phone and identified herself as “Tameka’s mom” and said “You the one that got Jay in trouble.” Cain’s first name was Jermaine and he was known on the street as “Jay.” Tameka was a relative of Cain. The court instructed the jury that the information was not introduced for its truth, merely to show it was said, and to explain Omeni’s conduct.

There was no error. Walker, supra.

5. Cain’s fifth enumeration is that the court erred in not directing a verdict of not guilty on the armed robbery counts because of fatal variance between the allegata and probata.

As to each of the three victims in the Winn Dixie, the indictment charged defendants “did take from the person and immediate presence of [each victim] .. . U. S. Currency the property of [each victim] and of the value of over $5.00 by the use of a handgun.”

Cain contends that, because the money taken belonged to Winn Dixie, not to the individuals, and since an amount over $5 was not taken from any individual employee, there was a fatal variance.

“In an armed robbery case, the state must allege and prove that the defendant took property of a person or persons other than the accused. OCGA §§ 16-8-41 . . .; 16-1-3 . . McKisic v. State, 238 Ga. 644 (2) (234 SE2d 908) (1977). However, ‘ownership of the property taken may be laid in the person having actual lawful possession of it, although he may be holding it merely as the agent of another, and it is not necessary to set forth in the indictment the fact that the person in whom the ownership is laid is holding it merely as agent of the real owner.’ [Cits.]” Wilson v. State, 250 Ga. 630, 632 (1) (300 SE2d 640) (1983).

Even assuming a variance, it was not such a variance as to affect the substantial rights of the defendant. DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969); Lawhorn v. State, 200 Ga. App. 451, 453 (1) (408 SE2d 425) (1991).

6. Cain enumerates the court’s denial of his motion to sever his trial from that of his co-defendants as error.

Cain raised at pretrial hearings the possibility of problems arising under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). The State agreed to redact from any co-defendants’ statements references to Cain, and this was done.

Also, Thomas and Cook both testified and were subject to cross-examination.

Jointly indicted non-capital defendants “ ‘may be tried jointly or severally, in the discretion of the trial court. OCGA § 17-8-4. The burden is on the defendant requesting a severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.’ (Citations and punctuation omitted.) Barnett v. State, 204 Ga. App. 491, 495 (2) (b) (420 SE2d 43) (1992) .” Johnson v. State, 208 Ga. App. 747, 749 (2) (431 SE2d 737) (1993) . See Bailey v. State, 203 Ga. App. 133, 137 (3) (416 SE2d 151) (1992).

There was no error.

7. Cain’s seventh enumeration is that the court erred in charging the jury on the aggravated assault, kidnapping, false imprisonment, and possession of a firearm during a felony because these offenses merged with the armed robbery charges.

However, at the conclusion of the charge to the jury, the court specifically inquired if there were exceptions to the charge on behalf of Cain, and there were none. Therefore, there is a procedural default barring appellate review of the charge. Birchfield v. State, 205 Ga. App. 870, 871 (2) (424 SE2d 66) (1992).

Case No. A93A2472

8. Cochran’s first and second enumerations address the sufficiency of the evidence by contending the court erred in denying his motion for directed verdict and new trial on the ground that Cochran’s conviction was based on the uncorroborated testimony of co-defendant Thomas.

The test to be applied in determining both these procedural matters is that of Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979). Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (1991); Stinson v. State, 185 Ga. App. 543, 554 (364 SE2d 910) (1988).

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. . . . The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. [Cit.] ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).” Castell v. State, 250 Ga. 776, 780 (1) (c) (301 SE2d 234) (1983).

Here, Cochran was a former employee of Winn Dixie, having been let go. He was in the store on the evening of the robbery and admitted he was there with Thomas. Both men were off the sales floor in areas with which they were familiar by virtue of their past employment. Not only did Thomas implicate Cochran, but Cain and Cook also did. Cochran was found hiding from the police with Thomas and money from the robbery was found on the premises.

The testimony of one accomplice may be corroborated by the testimony of another accomplice. Morris v. State, 204 Ga. App. 437, 438 (2) (419 SE2d 733) (1992); Brown v. State, 188 Ga. App. 266 (372 SE2d 832) (1988). Whether there has been adequate corroboration of the testimony of an accomplice is for the jury’s determination. Day v. State, 197 Ga. App. 875, 876 (399 SE2d 741) (1990). There was adequate corroboration here. Martin v. State, 209 Ga. App. 720, 722 (1) (434 SE2d 534) (1993).

A person acting as a lookout during the commission of a crime is a participant in that crime. DeLoach v. State, 142 Ga. App. 666 (1) (236 SE2d 904) (1977).

9. Cochran’s third enumeration complains of the admission of a “similar act” against him.

On June 30, 1991, the Winn Dixie store on Winters Chapel Road was robbed. While the cashier was tallying the receipts late at night, a lone gunman in a baseball cap and tee shirt came up behind her. He was carrying a gun and informed her that if she did not help him, he was “going to blow your f—ing head off.” She put the money in a mail bag and he started out the door. Although she electronically locked the exits before he got out, he shot the glass out and escaped. The cashier ran into the parking lot and saw the robber and a second individual running across the parking lot toward an apartment complex.

Shortly after the incident, the cashier helped police prepare a composite of the robber and later picked a photo of Cochran from an array as the robber. At trial, she initially misidentified Cook as the robber, but then identified Cochran.

Cochran objected to the evidence both on the misidentification and on the basis that this robbery was not similar to the charged robbery because, in the latter, Cochran did not enter the store.

First, the misidentification went to the credibility of the witness and the weight of the evidence, not its admissibility. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985).

Secondly, in determining whether a “like act” is admissible, similarity is not the only factor, nor is it necessarily the controlling factor. The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues of the case being tried. Felker v. State, 252 Ga. 351, 359 (1a) (314 SE2d 621) (1984); Henderson v. State, 182 Ga. App. 513, 516 (2) (356 SE2d 241) (1987), aff’d in part and rev’d in part on other grounds, 257 Ga. 618.

Here, in addition to the use of the gun and similar obscene language, the victim of this incident and the charged crime was Winn Dixie, from which Cochran had been fired and told not to come on the premises. The evidence was admissible. Jackson v. State, 205 Ga. App. 7, 9 (3) (421 SE2d 119) (1992).

10. Finally, Cochran complains of the denial of his motion for mistrial.

Decided March 10, 1994

Reconsiderations denied March 23, 1994

William M. Warner, for Cain.

J. Phillip Hancock, for Cochran.

J. Tom Morgan, District Attorney, Robert M. Coker, Fran W. Shoenthal, Assistant District Attorneys, for appellee.

While Thomas was being cross-examined by counsel for Cain, Thomas was asked if Smith had told him not to come back into the store and received a negative answer. The following cross-examination by Cain then occurred: “Q. Say anything to Mr. Cochran in your presence about not coming back into the store? A. I remember earlier he had told him that he couldn’t come back to the store no more because they had caught him stealing an escrow out of there one time.”

At this point, counsel for Cochran moved for a mistrial on the basis that the statement had placed Cochran’s character in issue.

“ ‘What is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.’ (Emphasis supplied.) Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351) (1987). Here the answer was the natural response to the question asked by [co-defendant’s] attorney, and the state took no part in its introduction. Also, the trial judge gave the appropriate limiting instructions.” Johnson v. State, 258 Ga. 506, 508 (3) (371 SE2d 396) (1988).

Judgments affirmed in Case Nos. A93A2470 and A93A2472.

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

       Although Thomas was not tried with these defendants, he was awaiting trial on the same indictment and testified for the State at this trial.

       Although Cook was tried with Cochran and Cain and convicted of armed robbery, aggravated assault, and possession of a firearm during a felony, his appeal is not before us at this time.

       While the enumeration contends error in the court’s charge, this is not argued and is deemed abandoned. Rule 15 (c) (2).

         We note that the court did merge for sentencing purposes Counts 2 and 3 into Count 1, armed robbery counts, which was appropriate. There was no merger, either as a matter of fact or law, of the remaining offenses against the employees. There was a sequential series of crimes committed against the same victims. Bales v. State, 200 Ga. App. 97, 98 (2) (406 SE2d 790) (1991).


text:
    A93A2583.
    VENSON v. THE STATE.
    (441 SE2d 893)
   Pope, Chief Judge.

Defendant Richard Edward Venson was charged with three counts of sexual battery and, following a jury trial, was convicted of Count 1. He appeals.

1. The record shows that defendant was first brought to trial on the charges against him in June 1993, but that trial ended when the trial court granted, over defendant’s objection, the State’s motion for mistrial after defense counsel improperly questioned the victim named in Count 3. Following the grant of the mistrial, defendant filed a plea of former jeopardy as to each of the three counts. The trial court denied defendant’s pleas and the second trial was commenced on July 12, 1993.

Defendant enumerates as error the denial of his plea of former jeopardy, arguing that the trial court erred in granting the State’s motion for mistrial as to any of the counts. Alternatively, defendant argues that even if the motion was properly granted as to Count 3, the trial court nevertheless erred in granting the State’s motion as it pertained to the unrelated crime charged in Count 1.

“ ‘Once the jury has been impaneled and sworn, jeopardy attaches. However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is a manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue.’ (Punctuation and citations omitted.) Phelps v. State, 187 Ga. App. 236 (369 SE2d 506) (1988). ‘This formulation ... abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated ... (to demonstrate) the breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.’ Abdi v. State, 249 Ga. 827, 828 (294 SE2d 506) (1982).” Miller v. State, 204 Ga. App. 562, 565 (420 SE2d 12) (1992).

Defendant argues that the trial court erred in granting the motion for mistrial because the testimony counsel sought to elicit from the witness was in fact admissible and, even if the questioning of the witness was improper, the appropriate remedy was not to declare a mistrial but to give curative instructions to the jury. Our review of the transcript does not support defendant’s contentions. Rather the record shows, as the trial court found, that the questioning of the witness was improper. The record is likewise clear that even after the trial judge properly determined the question to be improper and prejudicial, she was nevertheless reluctant to grant the State’s motion for mistrial in this case, but that she believed that the error here could not be cured by instructions. The record further shows the trial court reached this conclusion after a recess to consider the State’s motion and after hearing extensive argument from defense counsel as to why the motion should not be granted. “ ‘The manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial. (Cit.)’ Abdi v. State of Ga., [744 F2d 1500, 1503 (11th Cir. 1984)]. See also Burleson v. State, 259 Ga. 498 (384 SE2d 659) (1989).” Moss v. State, 200 Ga. App. 253, 255 (407 SE2d 477) (1991).

We also find no merit to defendant’s contention that the trial court should have granted the State’s motion for mistrial only as to the charges stated in Count 3, and should have allowed the trial to proceed on the other charges. As stated above, the record shows that at the time the State made the motion for mistrial, defendant was afforded ample opportunity to object and to suggest alternatives to granting the State’s motion. However, at no time did defendant suggest that the counts should be treated separately for the purpose of deciding whether a mistrial should be granted. Moreover, even if the court should have contemplated such an alternative, or if this alternative approach had in fact been suggested and rejected by the court, it does not follow that reversal is required in this case. “With respect to whether the rejection of alternatives amounts to abuse of discretion, it was stated in the case of Cherry v. Director, State Bd. of Corrections, 635 F2d 414, 418-19 (5th Cir. 1981): A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though ‘(i)n a strict, literal sense, the mistrial (is) not “necessary.” ’ (Arizona v. Washington, supra, 434 U. S.) at 511, 98 S.Ct. at 833. This great deference means that the availability of another alternative does not without more render a mistrial order an abuse of sound discretion. (Cits.) Deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights. . . The declaration of mistrial, under these circumstances, will, not bar a retrial.” (Indention omitted.) Burleson v. State, 259 Ga. at 501.

We find this analysis dispositive of defendant’s contentions in the case at bar. Under the circumstances of this case, we cannot conclude the trial judge abused her discretion in declaring a mistrial. Accord Burleson v. State, 259 Ga. at 501; Jones v. State, 232 Ga. 324 (206 SE2d 481) (1974); Miller v. State, 204 Ga. App. at 565; Moss v. State, 200 Ga. App. at 255; McGarvey v. State, 186 Ga. App. 562 (1) (368 SE2d 127) (1988). Accordingly, the trial court correctly denied defendant’s plea in bar.

2. Contrary to defendant’s second enumeration of error, Christopher Poole was properly called by the State as a rebuttal witness. Calling an unlisted witness in rebuttal is not error. See, e.g., Gibbons v. State, 248 Ga. 858, 865 (286 SE2d 717) (1982); Savage v. State, 152 Ga. App. 392 (263 SE2d 218) (1979).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Decided March 9, 1994

Reconsideration denied March 23, 1994

Husby, Myers & Stroberg, Roland H. Stroberg, for appellant.

Jerry Rylee, Solicitor, Inez D’Entremont, Assistant Solicitor, for appellee.


author: Johnson, Judge.

text:
    A94A0328.
    SATTERWHITE v. THE STATE.
    (442 SE2d 5)
   Johnson, Judge.

Wendell Satterwhite appeals from his convictions of rape, kidnapping and aggravated assault.

1. Satterwhite contends that the trial court erred in denying his motion to suppress evidence of the statement he made to the police because there is no evidence that before making the statement he voluntarily waived his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). “The trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous.” (Citations and punctuation omitted.) Higginbotham v. State, 207 Ga. App. 424 (1) (428 SE2d 592) (1993). In the instant case, contrary to Satterwhite’s contention, the State presented evidence at the hearing held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), showing that Satterwhite voluntarily waived his rights prior to making the statement. The officer who took the statement testified at the hearing that Satterwhite was informed of his Miranda rights, appeared to understand those rights, had an opportunity to read a form listing his rights, was read and appeared to read the waiver portion of that form, signed the form waiving his rights and then made the statement. During the trial, the State introduced into evidence the form listing the Miranda rights and containing Satterwhite’s written waiver of those rights. Because the trial court’s finding that Satterwhite voluntarily waived his rights before making his statement is supported by the State’s evidence, we will not look behind it. Gatson v. State, 198 Ga. App. 279, 280 (2) (401 SE2d 71) (1991). The court committed no error in admitting evidence of Satterwhite’s statement.

2. Satterwhite argues that the court erred in allowing two police investigators to give testimony improperly bolstering the victim’s credibility. The first investigator testified that physical evidence found at the scene of the crime conformed to the victim’s story. Although an expert witness may not testify as to his opinion of the victim’s truthfulness, “[t]he witness may . . . express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” State v. Oliver, 188 Ga. App. 47, 50-51 (2) (372 SE2d 256) (1988). Here, the investigator did not improperly give his opinion of the victim’s truthfulness, but instead merely expressed his opinion that the physical evidence was consistent with the victim’s story. The trial court did not err in allowing this testimony.

Decided February 22, 1994

Reconsideration dismissed March 23, 1994.

Word & Flinn, Gerald P. Word, T. Michael Flinn, for appellant.

Peter J. Skandalakis, District Attorney, Jeffrey W. Hunt, Assistant District Attorney, for appellee.

The second investigator testified that the victim’s pre-trial statement was consistent with her trial testimony. “Inquiry as to impermissible bolstering no longer is necessary following Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).” (Citation and punctuation omitted.) Riley v. State, 181 Ga. App. 667, 670 (4) (353 SE2d 598) (1987). Moreover, “Cuzzort stands for the proposition that where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.” Edwards v. State, 255 Ga. 149, 151 (2) (335 SE2d 869) (1985). Here, the victim was cross-examined by Satterwhite on matters related to her credibility on the issues of consent and her prior statements. Because the victim’s credibility was under attack, the court properly allowed the State to show that she had made prior consistent statements to investigators. Esco v. State, 199 Ga. App. 232, 233 (1) (404 SE2d 584) (1991); Hayes v. State, 189 Ga. App. 39, 40 (1) (a) (375 SE2d 114) (1988).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A0307.
    WOODS v. THE STATE.
    (442 SE2d 22)
   McMurray, Presiding Judge.

On June 5, 1991, following a jury trial, defendant was convicted of armed robbery and sentenced to life in prison. More than two years later, defendant moved for permission to file an out-of-time appeal. The motion was granted and this appeal followed. Held:

1. Citing Williams v. State, 261 Ga. 640, 641-643 (409 SE2d 649) and Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483), defendant asserts the trial court erred in permitting the State to introduce a certified copy of a previous conviction for armed robbery as evidence of a similar transaction or occurrence. In this regard, defendant posits that the State did nothing more than introduce the copy of the previous conviction into evidence and that, therefore, the State failed to establish the similarity or connection between the previous offense and the crime charged. We find no merit in this enumeration of error because defendant did not make such an argument below. At a pretrial hearing to determine the admissibility of similar transaction evidence, defendant merely objected to such evidence on the ground that the State did not give him timely notice. During the trial, when the State introduced the certified copy of the previous conviction, defendant merely renewed his prior objection. It follows that defendant waived the evidentiary issue discussed in Williams and Stephens and that that issue was not preserved for appellate review. Compare Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) with Riddle v. State, 208 Ga. App. 8 (1) (430 SE2d 153).

Decided March 23, 1994.

Cowart & McCullough, Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

2. In his second enumeration of error, defendant contends the trial court erred because it failed to chastise a State’s witness and give appropriate curative instructions after the witness mentioned defendant’s subsequent arrest for driving under the influence. We find no error. The trial court promptly sustained defendant’s objection to the witness’s testimony and struck it from the record. Defendant did not ask for curative instructions; nor did he move for a mistrial. If defendant wanted the trial court to take additional corrective measures, he should have asked for them. See Turner v. State, 208 Ga. App. 728 (431 SE2d 727); Baine v. State, 181 Ga. App. 856, 858 (4) (354 SE2d 177); Campbell v. State, 111 Ga. App. 219, 220 (5) (141 SE2d 186). “[A]ppellant waived any error due to the court’s failure to give curative instructions by not requesting curative instructions when the objection was sustained. [Cits.]” Price v. State, 204 Ga. App. 288, 289 (1) (419 SE2d 126). Accord Campbell v. State, 207 Ga. App. 902, 903 (1) (429 SE2d 538).

3. The trial court did not err in admitting into evidence the circumstances surrounding defendant’s arrest. Coney v. State, 198 Ga. App. 272, 273-274 (3) (401 SE2d 304).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Johnson, Judge. Blackburn, Judge,

text:
    A93A2339.
    BALDWIN v. ROBERTS.
    (442 SE2d 272)
   Johnson, Judge.

Joseph Roberts owns a McDonald’s restaurant and employed Shurice Baldwin as a hostess. One afternoon, the restaurant manager told Roberts that Baldwin was yelling at a customer. Roberts confronted Baldwin and told her to clock out and leave the restaurant. The argument escalated and Roberts ultimately called the police to have Baldwin removed from the premises. Three police officers responded to the call and escorted Baldwin from the restaurant. Baldwin claims that as the officers were removing her from the premises, Roberts hit her face with his hand. Roberts denies this claim. Baldwin did not return to work and, several days after the incident, turned in her work uniform and asked Roberts for a separation notice. Roberts gave her a notice which stated, “Failed to report for work for three consecutive days. No call. No show. Further work was available.” Baldwin submitted the separation notice to the labor department when she applied for unemployment benefits. The labor department denied her application; Baldwin never appealed that decision. She then filed the instant complaint, claiming that Roberts committed battery when he hit her, that the statements he made in the separation notice are fraudulent and that she is entitled to punitive damages. The trial court granted summary judgment in favor of Roberts on all claims. Baldwin appeals.

1. We first address the issue of whether Baldwin’s battery claim is barred by the exclusive remedy provision of the Workers’ Compensation Act. “In cases where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, [her] injuries will nevertheless be considered compensable under the Workers’ Compensation Act if it is shown that the animosity arose from reasons related to the employee’s performance of [her] work-related duties. Conversely, if the animosity giving rise to the assault stemmed from reasons not related to the injured employee’s performance of [her] work, then [her] injuries will not be considered compensable under the Act.” (Citations, punctuation and emphasis omitted.) Western Waterproofing Co. v. Rogers, 204 Ga. App. 779, 780 (1) (420 SE2d 606) (1992). Baldwin argues that there is a genuine issue of fact as to whether Roberts’ animosity toward her was related to the performance of her work. The only evidence she relies on in support of this argument is that she yelled, among other things, derogatory remarks at Roberts as the police removed her from the restaurant. Contrary to Baldwin’s argument, this evidence does not create a genuine issue of material fact. The undisputed evidence shows that prior to this incident, there had been no animosity of any sort between Roberts and Baldwin. Roberts gave uncontroverted testimony at his deposition that he had Baldwin removed from the store because she was creating a disturbance which caused all activity in the restaurant to come to a halt. The mere fact that part of the disturbance was caused by personal remarks directed toward Roberts does not show that the animosity between the parties was unrelated to Baldwin’s work performance. The record plainly shows that any animosity between Roberts and Baldwin arose from reasons related solely to her performance at work; the animosity arose from the disturbance she was causing while on duty as a hostess in the restaurant. See Fountain v. Shoney’s Big Boy, 168 Ga. App. 489, 490 (309 SE2d 671) (1983). Because the animosity arose from reasons related to Baldwin’s performance of her work, the injuries she received from the alleged battery are compensable under the Workers’ Compensation Act. Compare Hardee’s Food Systems v. Evans, 197 Ga. App. 5 (397 SE2d 474) (1990). Baldwin’s tort claim for battery is therefore barred by the exclusive remedy provision of the Act. OCGA § 34-9-11.

Baldwin’s further contention, that the battery is not covered by the Act because her employment had already been terminated at the time Roberts hit her, is also without merit. Assuming, without deciding, that Roberts did in fact terminate Baldwin before allegedly hitting her, since his aggressive acts “were part of the res gestae of the [alleged] discharging of [Baldwin], the injuries which resulted from those actions arose out of and in the course of employment.” Woodward v. St. Joseph’s Hosp. of Atlanta, 160 Ga. App. 676, 677 (288 SE2d 10) (1981). The trial court properly granted summary judgment to Roberts on Baldwin’s battery claim.

2. Baldwin complains that the court erred in granting summary judgment to Roberts on her fraud claim. “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. In deciding whether the evidence presented is sufficient to raise a triable issue as to each element, the court must resolve all disputes of fact and indulge all reasonable inferences therefrom in favor of the nonmoving party.” (Citations omitted.) Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). Even resolving all disputed facts in favor of Baldwin, there is no evidence of a false representation by Roberts. Baldwin’s claim that the statements Roberts made in the separation notice are fraudulent is premised on her assertion that she thought her employment was terminated when Roberts told her to clock out and leave the premises and then called the police. Baldwin’s belief that she had been fired does not create a genuine issue as to whether she was in fact fired. On the contrary, the undisputed evidence in the record shows that Roberts did not terminate Baldwin’s employment. Roberts testified that he did not fire her. Baldwin herself testified at her deposition that Roberts never told her she was fired and, when she asked for the separation notice, he specifically told her, “I didn’t say you was fired.” The only evidence Roberts can point to in support of her assertion that she was terminated is her own testimony that the night following the incident she called the restaurant and spoke to another employee who told her that Roberts’ wife said that Baldwin was fired. This testimony is inadmissible hearsay which may not be used on a motion for summary judgment to create a genuine issue of material fact. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990). Because there is no competent evidence showing that the statements made by Roberts in the separation notice are false, the trial court did not err in granting summary judgment against Baldwin on her fraud claim.

3. Because of our holdings in Divisions 1 and 2 of this opinion, Baldwin’s claim that the trial court’s judgment should be reversed because she is entitled to punitive damages is without merit.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews and Smith, JJ., concur. Blackburn, J., concurs in part and dissents in part.

Blackburn, Judge,

concurring in part and dissenting in part.

This case actually presents a novel issue, i.e., whether an employer himself may commit an intentional battery upon an employee and avoid tort liability by asserting the exclusive remedy provisions of the Workers’ Compensation Act.

It has been stated often that “when an employee’s injuries are compensable under the Act, he is absolutely barred from pursuing a common law tort action to recover for such injuries, even if they resulted from intentional misconduct on the part of the employer.” Southwire Co. v. Benefield, 184 Ga. App. 418, 419 (361 SE2d 525) (1987). However, those cases all involved the intentional misconduct of either a co-worker, agent of the employer, or a third party. Such was the case in Western Waterproofing Co. v. Rogers, 204 Ga. App. 779 (420 SE2d 606) (1992), relied upon by the majority opinion.

In Fowler v. Southern Wire & Iron, 104 Ga. App. 401, 408-409 (122 SE2d 157) (1961), this Court expressed doubt that the Act was intended to benefit employers with respect to their intentional acts, and concluded that “[a] malicious unlawful act or intentional injury by the employer is not ‘reasonably contemplated’ as a risk of the employment or the business.” Further, we quoted with approval the position expounded in other jurisdictions: “ ‘It would be abhorrent to our sense of justice to hold that an employer may assault his employee and then compel the injured workman to accept the meager allowance provided by the Workmen’s Compensation Law. Under such circumstances the one assaulted may avail himself of a common law action against his assailant where full monetary satisfaction may be obtained.’ ” Id. at 408.

The Supreme Court reversed this Court’s decision in Fowler, but did so because it found the case to involve the failure to provide a safe work place, rather than an intentional assault by the employer on the employee. The Court expressed no disapproval of the proposition that employers should be subject to tort liability for their own intentional acts. Southern Wire & Iron v. Fowler, 217 Ga. 727, 730 (124 SE2d 738) (1962).

The Workers’ Compensation Act pertains to “injury by accident.” OCGA § 34-9-1 (4). The purpose of the Act is to provide relief to employees injured by accident, and to protect employers from excessive awards. Atha v. Jackson Atlanta, 159 Ga. App. 433 (283 SE2d 654) (1981). Construing the Act liberally in order to effectuate those objectives, intentional assaults by co-workers or third parties, unless directed against the employee for purely personal reasons, have been considered “accidents” within the purview of the Act. See Helton v. Interstate Brands Corp., 155 Ga. App. 607 (271 SE2d 739) (1980).

However, as we noted in Fowler at 408, employers collectively would not be benefited by including injuries caused by their intentional assaults under the Act, and employees likewise would not benefit from including such injuries under the Act and precluding a common law tort action. Further, it is simply bad policy to hold employers unaccountable for their own intentional, unlawful acts perpetrated against their employees. There is no reason to treat such intentional acts by employers as “accidents,” and thereby deprive victimized employees of the opportunity to obtain a full recovery for their injuries.

Other jurisdictions have similarly disallowed employers shielding themselves from responsibility for their intentional torts. For example, in Arizona an injured employee may elect to bring either a compensation claim or a common law tort action for an employer’s wilful misconduct or intentional act. Ariz. Rev. Stat. Ann. § 23-1022 (A) & (B) (1983). In Michigan, the exclusive remedy provision is inapplicable where an employee is injured as a result of an employer’s deliberate act. Mich. Stat. Ann. § 17.237 (131) (1988). West Virginia allows an employee to bring a tort action to recover the excess of damages over the benefits awarded due to the wilful or intentional act of the employer. W. Va. Code § 23-4-2 (b) (1985).

I concur with the disposition of the employee’s fraud claim in Division 2 of the majority opinion. However, for the reasons stated above, the trial court erred in granting summary judgment for the employer on the grounds that the employee’s battery claim was barred by OCGA § 34-9-11. Accordingly, I must respectfully dissent from Division 1.

Decided March 8, 1994

Reconsideration denied March 24, 1994

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., W. Allen Evans, George N. Skene, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A0003.
    TYSON v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (442 SE2d 9)
   Birdsong, Presiding Judge.

This appeal was originally filed in the Supreme Court and was transferred to this court. The case arose out of suit for damages for the attempted rape of plaintiff while she was recovering from spinal surgery in the Medical College of Georgia Hospital, by a prison inmate who had been previously convicted of assault with intent to rape and who had been admitted to the hospital for treatment. Plaintiff/ appellant Tyson sued for damages based in part on the hospital’s violation of an oral contract for security services, for which appellant paid in her hospital bill. Following a jury verdict for $190,000 compensatory damages, the Supreme Court in an earlier appeal held that the Board of Regents had not waived its sovereign immunity by entering an “oral” contract for security services, and that it had not waived its sovereign immunity by establishing its particular self-insurance plan. Bd. of Regents v. Tyson, 261 Ga. 368 (404 SE2d 557).

On remand, the trial court entered a judgment for the Board of Regents based on sovereign immunity. Tyson filed the present complaint as a condemnation proceeding, asserting that the State’s use of sovereign immunity to avoid its contract obligations amounted to a taking of property as contemplated by the state and federal constitutions. The trial court granted the Board of Regents’ motion to dismiss, on grounds that the State has a right to abolish a tort action or a tort damage. Bagley v. Shortt, 261 Ga. 762 (410 SE2d 738); Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57); Kelly v. Hall, 191 Ga. 470 (12 SE2d 881). Held:

The order and judgment of the trial court is affirmed. The legislature’s and the judiciary’s establishment of and adherence to the rule of sovereign immunity is not a “taking” of property rights required to be compensated by Ga. Const. 1983, Art. I, Sec. Ill, Par. I. See Robinson v. City of Decatur, 253 Ga. 779 (325 SE2d 752). Where the sovereign has sovereign immunity from a cause of action, and has not waived that immunity, the immunity rises to a constitutional right and cannot be abrogated by any court. State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (437 SE2d 290). Although the Board of Regents argues that theories of res judicata and statutory limitations apply to defeat plaintiff’s case, plaintiff has asserted a brand new cause of action, attacking the reliance on sovereign immunity as a “taking of property,” and there simply is no cause of action against the Board of Regents for relying on its constitutional rights of sovereign immunity. The trial court did not err in finding that plaintiff’s complaint fails to state a claim for which relief can be granted.

Decided March 4, 1994

Reconsideration denied March 24, 1994

Morris & Webster, Craig A. Webster, Steven R. Webster, for appellant.

Michael J. Bowers, Attorney General, Alfred L. Evans, Jr., Senior Assistant Attorney General, for appellee.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A2193.
    MOTE v. THE STATE.
    (442 SE2d 799)
   Smith, Judge.

Jimmy Mote was indicted by a DeKalb County grand jury on six counts of homicide by vehicle, OCGA § 40-6-393 (a), and two counts of driving under the influence of alcohol, OCGA § 40-6-391. The trial court directed a verdict of not guilty as to three counts of homicide by vehicle and one count of DUI, and Mote was convicted by a jury on the remaining counts. The remaining DUI count merged with the counts of vehicular homicide. His motion for new trial was denied, and he appeals.

1. Mote enumerates as error the general grounds on the denial of his motion for new trial. A tow truck driver testified that he was struck from behind on Interstate 285 as he slowed to pick up a disabled car. He denied having slammed on his brakes before the collision. The vehicle that struck him was a pickup truck driven by Mote. Mote’s passengers, Randy and Finest Bowman and their infant son, were killed.

An eyewitness testified he did not see or hear the pickup truck brake from his vantage point. He did see, however, that the wrecker driver did not turn on his beacon until immediately before the collision and that the wrecker driver suddenly slammed on his brakes with sufficient force to create skid marks. The witness further testified he found the skid marks at the scene. A police detective investigated the accident and prepared a reconstruction. He testified that the wheels of the pickup truck were still turning at the time of impact. He found no skid marks left by either vehicle, and he testified that the marks on the road were “striations” due to the pickup truck’s tires moving across the roadway after impact.

On the day of the collision, Mote and the Bowmans arrived at Billy Wilson’s house at about 11:00 in the morning. The three men embarked on an afternoon of heavy drinking during which they consumed a case, several “pony” bottles and two pitchers of beer, two or three shots of schnapps each, and an additional twelve-pack of beer. After they left the Wilsons’ house, Mote and the Bowmans stopped and purchased yet another 12-pack of beer, which was found in or near the truck after the collision. Wilson testified that he, Mote and Bowman “well, legally, as far as, as driving, yeah, we was drunk” and that they were “pretty wasted.”

An emergency medical technician testified that she extricated Mote from the truck after the collision. She noticed that there was a strong, odor of alcohol on him to the extent that he smelled “like a brewery.” She explained that in her experience when a person was drinking heavily, alcohol could be smelled not only on the breath but also in the perspiration and clothes. At first Mote denied having had anything to drink, but he then admitted to “a couple” of drinks.

It was stipulated that Randy Bowman’s blood alcohol level was .17 grams percent. The police were unable to obtain a blood sample from Mote. A forensic toxicologist testified to the probable range of blood alcohol levels in a 205-pound man consuming certain quantities of alcohol, based upon an established equation, and to the effect of increasing blood alcohol levels on the driver of a motor vehicle. He testified that even a relatively low blood alcohol content of between .04 and .12 would affect adversely a person’s attention, judgment, reaction ability and performance skills, while further increases in blood alcohol to a level of between .18 and .20 would produce increasing difficulties in driving, such as “knee-wobbling” muscular incoordination.

Viewed in the light most favorable to the verdict, there was evidence presented from which a rational trier of fact could reasonably find that Mote was guilty of the offense charged beyond a reasonable doubt. While the testimony of the eyewitness to the collision arguably suggested that the driver of the tow truck may have been at least partly at fault in the collision, the testimony of the witnesses was in conflict. That conflict was for the jury, not this court, to resolve. Cantrell v. State, 210 Ga. App. 218, 219 (1) (435 SE2d 737) (1993). A rational trier of fact could reasonably have concluded that Mote was intoxicated and that his intoxication caused him to be a “less safe” driver, OCGA § 40-6-391 (a) (1), and caused the collision and the deaths of his three passengers. See Watkins v. State, 191 Ga. App. 87, 89 (3) (381 SE2d 45) (1989); see also Williams v. State, 190 Ga. App. 361 (1) (378 SE2d 886) (1989) (no intoximeter test administered; testimony of police officer regarding his observations of defendant and his conclusion that defendant was intoxicated sufficient to support conviction for DUI).

2. Mote also contends that the trial court erred in failing to charge the jury on “proximate cause.” However, the trial court charged the jury in the language of OCGA § 40-6-393, including the requirement that the accused “ cause [ ] the death of another person through the violation of Code section 40-6-391” and also charged that causation was a material element of the offense which the State was required to prove beyond a reasonable doubt. This charge was adequate. Billingsley v. State, 183 Ga. App. 850, 853 (5) (360 SE2d 451) (1987).

Mote, relying on Johnson v. State, 170 Ga. App. 443, 434 (1) (317 SE2d 213) (1984), contends that the trial court should have given the jury his requested charge. In Johnson, this court upheld the trial court’s use of a lengthy definition of “proximate cause” in a homicide by vehicle case. The charge was given over the defendant’s objection that it employed civil action language and hence allowed a lesser standard of proof in a criminal prosecution. Id. However, Johnson did not require that such an extended definition of proximate cause be given in every vehicular homicide case, and we decline so to hold. See, e.g., Williams v. State, 165 Ga. App. 831, 832 (302 SE2d 736) (1983) (not error to omit charge on causation separate from statutory language). Given the evidence as outlined in Division 1, and considering the charge given as a whole, it was an accurate statement of the law, was adjusted to the evidence, and was not confusing to the jury.

Moreover, Mote’s requested charge, “as crafted, creates a fair risk of confusing or misleading the jury when examined in light of the other charges.” Harmon v. State, 208 Ga. App. 271, 274 (6) (430 SE2d 399) (1993). The requested charge repeatedly referred to the collision as an “accident.” Taken in conjunction with the next portion of the charge, referring to Mote’s defense of “misfortune or accident,” the use of the requested charge could well have confused or misled the jury as to the meaning of the term “accident.” Harmon, id. The trial court did not err in refusing to give Mote’s requested charge.

Judgment affirmed.

Cooper, J., concurs. Beasley, P. J., concurs specially.

Decided March 8, 1994

Reconsideration denied March 25, 1994.

Antje R. Kingma, Abbi S. Taylor, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, J. Mike McDaniel, Robert M. Coker, Assistant District Attorneys, for appellee.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Division 1 and in the affirmance, but I cannot do the same regarding Division 2. I do agree that the requested charge was not totally correct, because it twice refers to the incident as an “accident” and because it states that “how the defendant was driving” must be the proximate cause. The term “how” he was driving is nebulous and not explained in the charge. The jury would not know whether it meant speed, proximity, attentiveness, manner, condition of driver, all the circumstances, or something else. The prohibition is against causing death through driving under the influence. OCGA §§ 40-6-393 (a); 40-6-391. For these reasons alone, the charge was properly rejected. Harmon v. State, 208 Ga. App. 271, 274 (5) (430 SE2d 399) (1993).

However, where a proper request is made, the court should be required to charge on proximate cause. Particularly in a case like this one, where the defense was that someone else, i.e., the wrecker driver, caused the collision which resulted in the deaths, the jury should be clearly informed that defendant’s conduct must be the proximate cause. As pointed out in Johnson v. State, 170 Ga. App. 433, 434 (1) (317 SE2d 213) (1984), “[t]he term and concept of proximate cause has been applied in vehicular homicide cases in this state for many years. [Cits.]” See also Davis v. State, 187 Ga. App. 517, 521 (3) (370 SE2d 779) (1988). There should be no mistaken notion that a defendant’s intoxicated driving need only be a cause or an indirect cause. An independent intervening cause would break the chain of causation. Hood v. State, 193 Ga. App. 701, 702 (1) (389 SE2d 264) (1989).

In Williams v. State, 165 Ga. App. 831, 832 (302 SE2d 736) (1983), we noted the importance of assuring that the jury understands “the causation requirement.”

       Compare Billingsley v. State, 183 Ga. App. 850, 853 (5) (360 SE2d 451) (1987).


author: Blackburn, Judge.

text:
    A94A0006.
    TURNER v. AMSOUTH MORTGAGE COMPANY, INC.
    (442 SE2d 468)
   Blackburn, Judge.

The appellant, Patricia Turner, purchased a townhouse in January 1984, at which time she was provided a copy of a survey plat showing the boundaries of her lot. Approximately one week later, the adjoining townhouse was purchased by Dan and Debbie Rushing, who were given the same survey plat as Turner. Turner and the Rushings financed their purchases, and the deeds to secure debt they executed eventually were transferred to the appellee, Amsouth Mortgage Company, Inc. (Amsouth).

In 1987, Turner obtained another survey of the property, which indicated that the Rushings’ townhouse encroached about four feet onto Turner’s lot. Turner attempted to discuss the matter with the Rushings, but they disputed the existence of an encroachment. In late 1989, the Rushings sold their townhouse to Margaret Roth, who was later advised of the alleged encroachment by Turner.

On August 5, 1991, Turner commenced this action against the original surveyor, the builder/seller of the property, Roth as the current owner, and Amsouth. The trial court granted summary judgment for Amsouth, and this appeal followed. The appeal originally was filed with the Supreme Court, which transferred the case to this court.

The relief Turner sought against Amsouth included an injunction for the immediate removal of the alleged encroachment at Amsouth’s expense, and against any further trespass or encroachment. As such, Turner’s claim against Amsouth was akin to an action of ejectment for recovery of land, the purpose of which is to eject the defendant from possession of the land involved. Harry v. Scenic Heights Dev. Corp., 220 Ga. 497 (2) (140 SE2d 192) (1965).

In the instant case, although Amsouth holds a security deed on the property in question, at no time has it possessed the property or been entitled to possession. The legal title held by Amsouth by virtue of the security deed “is not a title accompanied by the right of possession. . . .” Capps v. Smith, 175 Ga. 795, 796 (5) (166 SE 234) (1932). Cf. Randolph v. Merchants &c. Loan Co., 181 Ga. 671 (183 SE 801) (1936). Amsouth not being in possession of the property, Turner’s complaint against Amsouth failed to state a basis upon which the requested injunctive relief could be granted. Accordingly, the trial court properly granted summary judgment for Amsouth.

Judgment affirmed.

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

Decided March 8, 1994

Reconsideration denied March 25, 1994.

James R. Gee, for appellant.

Chesnut & Livingston, Tom Pye, Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, for appellee.


text:
    A94A0199.
    PITTS v. THE STATE.
    (442 SE2d 797)
   Blackburn, Judge.

Jethro Pitts was convicted by a jury of one count of possession of gambling devices, two counts of possession of marijuana, two counts of possession of cocaine and one count of trafficking cocaine. Pitts appeals the trial court’s denial of his motion to suppress evidence and his motion for mistrial.

1. Pitts contends that the information contained in the affidavit, upon which the search warrant was based, was “too bare bones” and based on double hearsay and, therefore, was insufficient to establish probable cause. The affidavit was prepared by a Fayette County deputy sheriff and contained the following facts: “Affiant states that he was advised by Capt. Mears of Tri-Cities Narcotic Unit that within the past ten days a quantity of marijuana was purchased from the residence at 140 Windward Way by a confidential and reliable informant who has given information in the past that has resulted in arrests and seizures of controlled substances. The informant also stated that a number of [slot machines] were seen inside the residence. Affiant states that the City of Fayetteville Water Department was contacted and they stated that the house was registered to a Pamela Mosely since February 1991. The records of the Superior Court of Fayette were checked and a Warranty Deed in the name of Pamela Mosely of 140 Windward Way was found that was filed on February 18, 1991.”

Pitts concedes that the affiant is allowed to use information supplied by another officer; however, Pitts maintains that this rule applies only to officers engaged in the same investigation. In Deal v. State, 199 Ga. App. 184 (1) (404 SE2d 343) (1991), we determined that the search warrant was properly supported by an affidavit in which Clayton County narcotics agents presented information provided by a detective with the Atlanta Bureau of Police Services who had obtained the information from a confidential reliable informant. The Atlanta detective was investigating a fire bombing and a drug related homicide. Id. at 185. In the present case, it is even clearer that the affiant and the Tri-City Captain were investigating the occupants and owners of 140 Windward Way, as all information was specifically related to that location. Pitts’ argument is without merit.

“In making a determination as to probable cause pursuant to the totality of the circumstances test enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found at a particular place. [Cits.]” (Punctuation omitted.) Hand v. State, 206 Ga. App. 501, 502 (426 SE2d 18) (1992). Pitts argues that the affidavit fails to provide “veracity” or a “basis of knowledge” of the person supplying the hearsay so that the magistrate had a “substantial basis” for concluding that probable cause existed.

“In Galgano v. State, 147 Ga App. 284, 286 (248 SE2d 548) (1978), we discussed three types of information which should be furnished to a magistrate to enable the magistrate to determine whether an informant is reliable and trustworthy, i.e., the type of information previously supplied by the informant, the use to which the information was put and the elapsed time since the information was furnished.” Bowe v. State, 201 Ga. App. 127, 130-131 (410 SE2d 765) (1991). We have also determined that “[i]t is not necessary in every case for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis. [Cit.]” Id. at 131. In the present case, the affidavit supplied each type of information to the magistrate and we find that it was sufficient to demonstrate the informant’s reliability.

2. In his second enumeration of error, Pitts asserts that the State failed to provide a racially neutral explanation for the exercise of its challenged peremptory strike. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The State explained that as the prosecutor indicated that the defendant was the black man seated at the defendant’s table, the challenged juror “shook his head, snorted, made some remarks or indications that remark had — had angered him or upset him.” The State’s explanation of its peremptory strike “need not rise to the level justifying exercise of a challenge for cause, but it must be neutral, related to the case to be tried, and a clear and reasonably specific, explanation of his legitimate reasons for exercising the challenges.” (Citation and punctuation omitted.) Gamble v. State, 257 Ga. 325, 327 (357 SE2d 792) (1987). Furthermore, “a prosecutor may strike from mistake, or from ignorance, or from idiosyncracy.” Id. at 326. In the present case, the trial court was correct in accepting the State’s explanation of its peremptory strike as racially neutral.

Decided March 8, 1994

Reconsideration denied March 25, 1994

Saia, Richardson & Meinken, Joseph J. Saia, Lloyd W. Walker, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A0613.
    FIRST NATIONAL BANK OF NEWTON COUNTY v. SPARKMON et al.
    (442 SE2d 804)
   Blackburn, Judge.

In 1990 the First National Bank of Newton County (FNB) began making business loans to the M & L Electrical Company (M & L). Before FNB would extend the loans, it required M & L to furnish financial reports prepared by an accounting firm, and M & L retained Richard Sparkmon and Cal Rueping to prepare the required reports.

Pursuant to that engagement, Sparkmon and Rueping completed an accountants’ review report for December 31, 1990, and subsequently six accountants’ compilation reports from April 30, 1991, through January 31, 1992. All of these reports indicated that they were prepared in accordance with the standards established by the American Institute of Certified Public Accountants (AICPA), and all contained disclaimers of accountants’ liability.

Eventually, after M & L defaulted on the repayment of over $400,000, FNB commenced this action against Sparkmon and Rueping to recover that loss. Sparkmon and Rueping moved for judgment on the pleadings with regard to any claim asserting professional negligence, and the trial court granted their motion. This court then granted this interlocutory appeal to consider whether the disclaimers of accountants’ liability contained in the financial reports were effective.

The accountants’ review report completed on December 31, 1990, first emphasized that “[a] review consists principally of inquiries of Company personnel and analytical procedures applied to financial data. It is substantially less in scope that an audit in accordance with generally accepted auditing standards, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express an opinion.” The report then indicated that based upon their review, the accountants were unaware of any material modifications that should be made to the company’s financial statements.

Each compilation report explained that it was “limited to presenting in the form of financial statements information that is the representation of management. We have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them. Management has elected to omit substantially all of the disclosures ordinarily included in financial statements. If the omitted disclosures were included in the financial statements, they might influence the user’s conclusions. Accordingly, these financial statements are not designed for those who are not informed about such matters.”

The former rule in Georgia was that absent intentional misrepresentation or fraud, an accountant was not liable for negligence to a third party who was not in privity with the accountant. MacNerland v. Barnes, 129 Ga. App. 367 (199 SE2d 564) (1973). However, in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983), the Supreme Court abandoned the privity requirement and adopted the rule enunciated in the Restatement of Torts 2d, § 552, extending professional liability for negligence to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. The Court further noted that “[t]he additional duty that this rule imposes may be . . . limited by appropriate disclaimers which would alert those not in privity with the supplier of information that they may rely upon it only at their perils (Emphasis supplied.) Id. at 682. Subsequently, the Supreme Court clarified that professional liability, including that of accountants, extends to those persons who the professional is actually aware will rely upon the information he prepared. Badische Corp. v. Caylor, 257 Ga. 131, 133 (356 SE2d 198) (1987).

In the instant case, FNB contends that the disclaimers in question merely limited the scope of the accounting engagement undertaken by Sparkmon and Rueping, and were ineffective to insulate them from liability for any negligent failure to comply with the standards for reviews and compilations established by the AICPA. However, the disclaimer contained in the review warned that the review was substantially less in scope than an audit and that the accountants did not express an opinion on the accuracy of the financial reports. The compilation reports similarly warned that the accountants did not express an opinion or other assurance regarding the financial statements, and emphasized that the client had omitted substantially all of the disclosures ordinarily included in financial statements.

We find these disclaimers effective to preclude any justifiable reliance by a third party upon the review and compilation reports they prefaced. Accordingly, Sparkmon and Rueping may not be found liable to FNB for mere negligence in the preparation of the financial reports, including any negligent failure to comply with the AICPA standards for reviews and compilations, and the trial court properly granted judgment on the pleadings for them on this professional negligence claim.

Decided March 9, 1994

Reconsideration denied March 25, 1994

Griffin, Cochrane & Marshall, Jennifer W. Fletcher, Craig A. Courville, for appellant.

Drew, Eckl & Farnham, James M. Poe, J. Robb Cruser, for appellees.

Judgment affirmed.

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