author: Carley, Judge.

text:
    75615, 75616.
    FAYETTE COUNTY BOARD OF TAX ASSESSORS v. GEORGIA UTILITIES COMPANY; and vice versa.
    (368 SE2d 326)
   Carley, Judge.

In 1986, the Fayette County Board of Tax Assessors (Board) discovered that certain real property upon which Georgia Utilities Company (GUC) had been paying taxes as unimproved property had, in fact, been improved in 1981. As the result of this discovery, the Board issued to GUC new notices of higher assessments on the property for the tax years 1981 through 1985. These notices reflected the additional value of the improvements to the real property for each year in question. GUC appealed to the Fayette County Board of Tax Equalization and, following a hearing, the new assessments were affirmed. GUC then appealed to the Superior Court of Fayette County. Cross-motions for summary judgment were filed. The superior court granted GUC’s motion and denied the Board’s motion as to the tax years 1981 through 1984. As to the 1985 tax year, however, the trial court denied GUC’s motion, ruling that Ga. L. 1985, p. 1350 et seq., which enacted existing OCGA § 48-2-49, authorized the Board to make a reassessment of the realty for that year. In Case Number 75615, the Board appeals from the superior court’s grant of partial summary judgment to GUC for tax years 1981 through 1984 and from the denial of its motion for summary judgment. In Case Number 75616, GUC cross-appeals from the superior court’s denial of its motion for summary judgment as to tax year 1985.

Case No. 75615

1. The superior court held that, prior to the enactment of existing OCGA § 48-2-49 in 1985, the Board had no authority to undertake the reassessment of real property after its initial assessment of the realty had been made and the taxpayer had paid the taxes based upon that initial assessment. The Board enumerates this holding as error.

The Board cites no statute which expressly authorized it to reassess real property after its initial assessment has been made and the taxes have been paid by the taxpayer in accordance therewith. Although the Board relies upon former OCGA § 48-2-49 as such authority, the superior court correctly held that that provision conferred authority only upon the State Revenue Commissioner. Former OCGA § 48-2-49 provided: “In the absence of fraud, no assessment shall be redetermined under Code Section 48-2-48 after the expiration of two years from the last date upon which the return could be filed without delinquency by the taxpayer under the law. In any case in which any report, return, or other information contains a fraudulent statement or omission of material facts which makes the taxpayer’s return or report a fraudulent representation of the items or things required therein, the commissioner may reopen the case and make additional assessments of taxes or license fees at any time within seven years of the return or report.” (Emphasis supplied.) OCGA § 48-2-48, the provision to which former OCGA § 48-2-49 made specific reference, is by its own terms, expressly limited in applicability to reassessments that are made by the State Revenue Commissioner. Therefore, it is clear, from both sentences of former OCGA § 48-2-49, that that provision was not intended to have any applicability to reassessments which were made by the Board. The Board has no entitlement to claim the right to exercise an authority which a revenue statute expressly confers only upon the State Revenue Commissioner. “[R]evenue statutes are to be construed strictly so as to resolve doubt in favor of the taxpayer, and their meaning is not to be extended by implication. [Cits.]” Novak v. Redwine, 89 Ga. App. 755, 757 (81 SE2d 222) (1954). See also Mousetrap of Atlanta v. Blackmon, 129 Ga. App. 805 (201 SE2d 300) (1973).

The Board also relies upon Garr v. E. W. Banks Co., 206 Ga. 831 (59 SE2d 400) (1950). In Garr, the taxpayer had omitted from his return some $30,000 of the $40,000 in personal property which was subject to taxation and had paid taxes based only upon the $10,000 of personal property he had returned. The holding in Garr is not that, under these circumstances, the county board of tax assessors was statutorily authorized to reassess the value of the taxpayer’s personal property. All that the Supreme Court held in Garr was that the county board was authorized, under the circumstances, to make a belated assessment of the $30,000 in personal property which had never been returned by the taxpayer. Unlike Garr, the present case concerns neither the taxation of personal property nor the taxation of any property which was never returned for taxes. GUC returned the real property every year, but GUC simply continued to return it as unimproved property even after the improvements had been made. Under our law, real property includes not only the land but all improvements thereon. See OCGA § 44-1-2; Simpson v. Tate, 226 Ga. 558, 559 (1) (176 SE2d 62) (1970). Thus, unlike items of personalty, the realty and the improvements thereon cannot be separated from each other. Inasmuch as the land and the improvements thereon would constitute one item of property, the Board in this case therefore seeks to reassess GUC’s realty as improved property, rather than to make an initial assessment of property improperly omitted from an original return. Accordingly, Garr is factually and legally distinguishable. It follows that the statutes upon which that case was decided would not constitute explicit authority for the Board to reassess the same realty after having previously assessed and collected taxes thereon.

The Board also relies upon Barland Co. v. Bartow County Bd. of Tax Assessors, 176 Ga. App. 798 (338 SE2d 16) (1985) as authority for its reassessment of GUC’s property. However, Barland Co., supra at 799 (1), simply holds “that the board was empowered by OCGA § 48-5-299 (a) to issue a new assessment notice to correct the obvious and undisputed clerical error which occurred when the original valuation figure was entered into the computer.” (Emphasis supplied.) This court explicitly limited its holding to instances of clerical error in an assessment, as distinguished from instances of reassessment. “The tax assessors in [the Barland Co. case were] not. . . seeking to collect additional taxes on the basis of a totally new appraisal of the value of the property but [were] seeking instead merely to correct a clerical error which occurred in reporting the original valuation figure to the taxpayer.” Barland Co. v. Bartow County Bd. of Tax Assessors, supra at 800. In contrast, the Board in the present case is seeking to collect additional taxes on the basis of a totally new appraisal of the value of GUC’s realty as improved property. Accordingly, OCGA § 48-5-299, as construed in Barland Co., supra, is not authority for the Board’s reassessments in the present case.

Thus, the Board has cited no explicit authority for it to make a reassessment of GUC’s realty for the tax years of 1981 through 1984. We have found none. Neither the superior court nor this court is authorized to construe a revenue statute so as to confer an authority upon the Board by implication. See Novak v. Redwine, supra; Mousetrap of Atlanta v. Blackmon, supra. It follows that the superior court correctly granted summary judgment in favor of GUC for those tax years. However, we would note that our holding relates only to county boards and that it should not be construed as addressing the scope of the authority of any other revenue official, including but not limited to the State Revenue Commissioner.

Case No. 75616

2. In the cross-appeal, GUC enumerates as error the superior court’s ruling that existing OCGA § 48-2-49 did authorize the Board to reassess the real property for 1985 taxes.

As we have held in Division 1 of this opinion, former OCGA § 48-2-49 conferred authority solely upon the State Revenue Commissioner. Although the wording is different from the former provision, there is nothing in the language of existing OCGA § 48-2-49 which can be said to constitute an explicit grant of authority to the Board to reassess real property under the circumstances which exist in this case. As noted previously, revenue statutes are to be construed strictly so as to resolve doubt in favor of the taxpayer and the meaning of such statutes is not to be extended by implication. See Novak v. Redwine, supra; Mousetrap of Atlanta v. Blackmon, supra. Moreover, the enactment of existing OCGA § 48-2-49 is only one of several amendments to Title 48 which were effectuated by Ga. L. 1985, p. 1350 et seq. “It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto. It is simply the duty of this court in interpreting the statutes now under consideration to look diligently for the intention of the legislature, keeping in view at all times the old law, the evil, and the remedy. [Cit.]” Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (1) (48 SE2d 86) (1948). See also Morgan v. Woodard, 253 Ga. 751 (325 SE2d 369) (1985). From the tenor of all of those amendments to Title 48 which were enacted by the 1985 statute, it would appear that the intent of the 1985 enactment was not to confer any authority upon the Board, but merely to clarify and standardize the statutes of limitation applicable to the assessment of additional taxes by the State Commissioner of Revenue. See 37 Mercer L. Rev. 361-364 (1985).

Accordingly, existing OCGA § 48-2-49 can constitute controlling authority in this case only if the usual rules of statutory construction have no applicability here. However, no reason has been presented for removing this case from the usual rules of statutory construction. Therefore, the superior court erred in construing existing OCGA § 48-2-49 as constituting the implicit grant of authority to the Board to make reassessments of 1985 taxes on realty, and erred in failing to construe existing OCGA § 48-2-49 in pari materia with the other provisions of Ga. L. 1985, p. 1350 et seq.

Decided March 3, 1988

Rehearing denied April 1, 1988

William R. McNally, R. Mark Mahler, for appellant.

Nolan C. Leake, Sandra E. Strippoli, for appellee.

It follows that the superior court erred in denying GUC’s motion for summary judgment as to the 1985 tax year. If the Board is to have the authority to reassess realty under the circumstances which exist here, it is the legislature which must confer that authority. Neither the superior court nor this court is authorized to construe existing OCGA § 48-2-49 as the implicit grant of that authority. However, we would again note that our holding in this regard relates only to county boards and to no other revenue official, including but not limited to the State Revenue Commissioner.

Judgment affirmed in Case Number 75615. Judgment reversed in Case Number 75616.

Banke, P. J., and Benham, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    75636.
    DENNY v. D. J. D., INC.
    (368 SE2d 329)
   Carley, Judge.

Appellee-plaintiff entered into a written contract, wherein it agreed to conduct a twelve-week “cash raising and/or going out of business sale” at appellant-defendant’s furniture store. Because of the small amount of inventory in appellant’s store, appellee further agreed that it would purchase additional items for the sale. After approximately six weeks, appellee terminated the sale because of poor customer response. Upon learning of appellee’s intention to terminate the sale, appellant locked the doors of his store and refused to allow appellee to remove its furniture.

Appellee then filed this suit. Insofar as it is relevant to this appeal, appellee’s complaint sought a recovery based upon appellant’s alleged conversion of its furniture and for appellant’s alleged fraudulent inducement of it to enter the contract. Appellant answered, denying the material allegations of the complaint. The case came on for a jury trial. The trial court submitted the case to the jury under both the conversion and the fraud theories. A general verdict in favor of appellee was returned. Appellant appeals from the trial court’s order denying his motion for a new trial.

1. With regard to appellee’s recovery under a fraud theory, appellant enumerates as error the trial court’s denial of his motion for new trial on the general grounds.

“It is only where there is not sufficient evidence to support the verdict rendered that the appellate courts will interfere therewith. . . . [Cits.]” Bill Jones Motors v. Mitchell, 100 Ga. App. 185, 189 (110 SE2d 555) (1959). See also Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 158 (1c) (256 SE2d 916) (1979). Appellee contends that its recovery under the fraud theory is sufficiently supported by evidence that appellant had intentionally concealed the fact that he had conducted previous “distress” sales in the course of his business. Appellee contends that, had this material fact not been concealed from it, it would not have contracted with appellant to conduct this distress sale.

“ ‘Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded. . . .’ [Cit.]” (Emphasis supplied.) Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 755 (266 SE2d 531) (1980). See also Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 861 (5) (294 SE2d 533) (1982). However, the record here is devoid of any evidence that appellee ever made a direct inquiry of appellant concerning any past “distress” sales which he had previously conducted. There is evidence that appellant had only mentioned to appellee his having conducted a single “promotional type” sale in the past. However, it would appear that this information concerning appellant’s prior “promotional type” sale had been merely a voluntary passing reference, made by appellant, without any intention that it be considered by appellee as a representation concerning the only sale which he had ever conducted in the past. Accordingly, the evidence would not authorize a finding that appellant had fraudulently concealed his conduction of prior “distress” sales by evading the truth in response to a direct inquiry made by appellee. Thus, the issue to be decided is whether the evidence would authorize the jury to find that a fraud had been committed when appellant failed, voluntarily and without any inquiry having been made, to inform appellee of the previous “distress” sales he had conducted in the course of his business.

“Suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case. [Cit.]” (Emphasis supplied.) Capital Bank of Macon v. Rutherford, 70 Ga. 57, 62-63 (2) (1883). There was no confidential relationship between the parties, who were engaging in an arms-length business transaction. Appellee presumably possessed the business acumen necessary to negotiate a contract on its own behalf and it had no right to rely upon appellant voluntarily to divulge every aspect of his prior business history. Appellee and appellant were “dealing at arms length and they were . . . chargeable with knowledge of the law relating to the legal requirements of the transaction which they entered into. [Cit.] Therefore, [appellee’s] failure to seek a means to protect [itself] ... is not chargeable to [appellant].” Royal v. Bland Properties, 175 Ga. App. 250, 252 (3) (333 SE2d 145) (1985). Likewise, appellee suggests no evidence of any “particular circumstances” which would render appellant’s silence as to his prior “distress” sales an act of fraud. Appellee urges only that appellant’s prior “distress” sales were material to it. No reason is suggested as to why appellant should have known, without inquiry, that appellee considered the existence of prior “distress” sales material to its entry into this contract. Likewise, no reason is suggested as to why, if the conduction of prior “distress” sales was material to appellee, it never raised that issue with appellant. “At the time of the [contract], [appellee] made no inquiry of [appellant], and [appellant] simply kept silent concerning a matter about which he was not asked to make any statement. . . . [I]t was a very simple matter to inquire if [appellant had conducted any prior ‘distress’ sales]. Had [appellee] done this and received a false answer, the case would be entirely different.” Littlejohn v. Drennon, 95 Ga. 743, 745-746 (22 SE 657) (1895).

Thus, the evidence shows only that the parties entered into a contract after arms-length negotiations. Thereafter, the contract did not produce the results which had been anticipated by appellee and the business relation ended acrimoniously, with appellant possibly converting the furniture belonging to appellee. However, an acrimonious and possibly tortious end to a contractual relationship does not show that appellee had been fraudulently induced into that relationship from the outset. As to the fraud theory, the general grounds of appellant’s motion for new trial had merit. The trial court, therefore, erred in failing to grant a new trial as to the fraud count.

2. Appellant’s enumerations of error which address the trial court’s charge were not preserved for appellate review. See generally John L. Hutcheson Mem. &c. Hosp. v. Oliver, 120 Ga. App. 547, 548 (3) (171 SE2d 649) (1969).

3. Remaining enumerations of error address the general grounds as to appellee’s recovery under the conversion theory. However, those enumerations cannot affect the ultimate disposition of this case. If the evidence would not support a verdict for appellee under this theory, we have already held that appellant is entitled to a new trial for the reasons discussed in Division 1. If, on the other hand, the evidence would support a verdict for appellee under the conversion theory, the judgment in its favor must nevertheless be reversed and a new trial conducted. “Where ‘the evidence shows that the plaintiff is entitled to have a recovery for one of the tortious acts alleged to have been committed, and is not entitled to recover for the other of such alleged acts, and under the charge of the court the jury could have properly based their verdict on either one or both, and a verdict finding a gross sum for the plaintiff was returned, it can not legally stand, because of the uncertainty as to whether it was rendered in satisfaction of the tortious act proved or that submitted which was not proved.’ [Cits.]” Flint Explosive Co. v. Edwards, 86 Ga. App. 404, 412 (6) (71 SE2d 747) (1952). See also Ga. Power Co. v. Busbin, 242 Ga. 612, 616 (8) (250 SE2d 442) (1978). Thus, resolution of the remaining enumerations of error is not necessary either to the determination of appellant’s right to a new trial or to the determination of appellee’s entitlement to enforce the existing judgment.

Decided March 7, 1988

Rehearing denied April 1, 1988

Christopher G. Nicholson, for appellant.

Stephen E. Curry, for appellee.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    75662.
    CARROLLTON COCA-COLA BOTTLING COMPANY et al. v. MOZLEY.
    (368 SE2d 371)
   McMurray, Presiding Judge.

We granted a discretionary appeal in this workers’ compensation case to review the superior court’s decision to uphold an award of death benefits to the claimant. We affirm.

Claimant is the widow of the deceased employee. The employee, a maintenance man, serviced drink dispensing machines for the employer. On the day in question, he worked a full day. Then, for extra pay, he went to work at a football game where he was to service the machines in the employer’s “special events” trailer from which refreshments were sold. Stopping at home before the game, the employee complained of indigestion and rubbed his chest.

During the game, the drink dispensing machines did not need to be serviced. Nevertheless, the employee helped the people operating the machines by carrying ice in a five gallon bucket. After the game, he hooked the drink machine trailer to a truck and began driving home. Later, the employee’s truck was found in a ditch; the trailer was still on the road. The employee was slumped over the steering wheel; he was dead.

It was determined that the employee died from a heart attack (an acute myocardial infarction). Prior to the attack, the employee had not been in perfect health. He suffered from diabetes, hardening of the arteries, and cirrhosis.

Before the game, the employee drank at least two pony beers. He was accustomed to drinking beer when he drove home from a game and he probably did so on the night in question. An autopsy revealed that the employee’s blood alcohol level was .07.

Following a hearing before the administrative law judge in July 1984 the record was left open until December for medical evidence. The autopsy report was submitted by the employer/insurer. No medical evidence was tendered by claimant, however, and in July 1985 the administrative law judge entered an award in favor of the employer/ insurer.

The full board remanded the case, ruling that claimant should be afforded an additional 60 days (until December 23, 1985) to submit medical evidence. In granting the extension of time, the board stated that no further extensions were to be granted without the board’s approval.

Medical evidence was not submitted within the 60-day extension period and no extension was approved by the board. In February 1986, however, the administrative law judge granted claimant an extension of time (until March 1, 1986) to tender additional medical evidence. Claimant submitted medical evidence on February 28, 1986.

The medical evidence submitted by claimant took the form of physicians’ reports. The reports were rendered by six physicians in response to a hypothetical question propounded by claimant’s counsel. (Our record does not contain the reports; it does, however, contain the hypothetical question.)

In October 1985, before claimant submitted any medical evidence, the employer/insurer submitted requests for admission to claimant. The requests sought admissions that claimant had no evidence demonstrating the employee’s heart attack arose out of his employment. Additionally, claimant was asked to admit that the DeKalb County medical examiner “rendered an opinion that there was no causal connection between the claimant’s heart attack and his work related duties.” The clincher read: “In fact, the claimant’s heart attack was not related to his employment with Carrollton Coca-Cola Bottling Company.” Claimant did not respond to the requests in a timely fashion.

The employer/insurer objected to the consideration of the medical reports by the full board, contending that they were filed after the expiration of the extension period and that no extension of time was granted by the board. Instead of ruling that the medical evidence could not be considered, the board granted the employer/insurer additional time to cross-examine the physicians giving the reports. After the employer/insurer took the depositions of four of the physicians, the board gave consideration to all of the medical evidence, including the physicians’ reports and the physicians’ depositions. It then entered an award granting death benefits to claimant. The superior court affirmed. Held:

1. The employer/insurer contends the superior court erred in affirming the award because the board improperly considered the medical evidence. In this regard, the employer/insurer asserts the medical evidence was submitted untimely because the board did not grant an extension of time for the filing of the evidence. We disagree.

The board is “an administrative body which exercises judicial functions within the channels of the Act.” Continental Ins. Co. v. McDaniel, 118 Ga. App. 344, 345 (163 SE2d 923). In the exercise of its judicial functions, the board is vested with a wide discretion in governing its proceedings. See Young v. Jones, 149 Ga. App. 819, 823 (3) (256 SE2d 58). In our view, the board was entitled to consider the medical evidence submitted after remand even though it did not formally grant an extension of time to do so. An extension of time was granted by the administrative law judge. By considering the evidence, the board, in effect, approved of the administrative law judge’s extension of time and granted the extension itself retroactively. It cannot be said that the board abused its discretion in this regard.

Even if the board did err in refusing to adhere to its original timetable, the employer/insurer cannot show harm. After all, the employer/insurer was given additional time by the board to test the medical evidence which claimant submitted and it cross-examined four of the physicians who gave an opinion on claimant’s behalf. It is axiomatic that unless an error is prejudicial, it is not reversible.

2. The full board determined that decedent’s fatal heart attack arose out of the course of his employment. In this regard, it found that the stress or physical exertion of the employee’s employment was a cause or contributing factor of his heart attack. Such a finding was authorized under the “any evidence” rule. Fox v. Liberty Mut. Ins. Co., 125 Ga. App. 285, 288 (187 SE2d 305). Although the physicians’ initial reports may not have been accurate (since the hypothetical propounded by claimant may not have presented all of the facts), several physicians opined in their depositions that, more likely than not, the employee’s heart attack was caused by the physical exertion of his employment. Those opinions were rendered after an accurate picture of the employee’s physical condition was painted by counsel for the employer/insurer. They were sufficient to authorize a finding that the employee’s work contributed to his death. J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 (157 SE2d 806).

3. The employer/insurer argues that in light of claimant’s failure to respond to the request for admissions, claimant has admitted that the employee’s heart attack did not arise out of the course of his employment. See, e.g., Piedmont Aviation v. Washington, 181 Ga. App. 730 (353 SE2d 847). We cannot accept this analysis.

In the first place, the requests for admission were not introduced in evidence at the initial hearing. In fact, they were not submitted by the employer/insurer until the full board ordered that the record be opened for the submission of additional medical evidence. The requests were not medical evidence. They sought an admission that claimant did not obtain any medical evidence.

In the second place, the requests for admission were inartfully drafted. The gist of the requests sought an admission that “claimant’s” heart attack was not related to “his” employment. But claimant did not suffer a heart attack. It was claimant’s deceased husband, the employee, who suffered the heart attack. Thus, the failure to respond to this request for admission was, technically speaking, of no consequence.

The employer/insurer argues that both sides had made this mistake throughout the proceedings so that this court and the tribunals below should all interpret this admission as referring to the employee. While this explanation of “claimant” may be true, we cannot change the wording of the request. Since no identification is given and since there is only one claimant, we read it as referring to her. Warner Robins Tree Surgeons v. Kolb & Co., 181 Ga. App. 20 (1) (351 SE2d 486) (1986). Thus, the admissions did not preclude the board’s consideration of the medical evidence.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur. Deen, P. J., and Beasley, J, dissent.

Beasley, Judge,

dissenting.

This case involves matters of proof connecting the employee’s heart attack to his employment.

The board remanded the case to the ALJ in October “[f]or receipt of medical evidence as to relationship, if any, of on-the-job activities and deceased’s fatal heart attack.” It further stated: “No extension of time for completion of the action required by this order beyond 60 days from the date hereof shall be granted without the approval of the board.” No extension was approved by the board, but in February 1986, the ALJ ordered an extension until March 1, 1986.

In February claimant’s counsel submitted an affidavit stating that he sent a hypothetical statement, the autopsy report on the employee, the death certificate, and the emergency room record to six other doctors for opinions. Although the affidavit states that their replies are attached, they are not in the record.

After this submission, the employer/insurer obtained an extension to allow cross-examination of the doctors by deposition. They are in the record.

Thus was comprised the record considered by the board in entering an award. The ALJ’s decision against the claimant was unchanged as a result of the additional evidence. The superior court affirmed the board’s award to her.

1. Employer/insurer enumerates as error the board’s consideration of the medical reports after they were received beyond the sixty days specified in the October 1985 order remanding the case. The court concluded that the board’s later consideration of the evidence was a ratification of the extension of its own order and that extensions had also been allowed to the employer/insurer for cross-examination, thus somehow justifying the late submission.

“The State Board of Work[ers]’ Compensation is an administrative commission, with such jurisdiction, powers, and authority as may be conferred upon it by the General Assembly.” National Surety Corp. v. Orvin, 209 Ga. 878, 880 (76 SE2d 705) (1953); American Cas. Co. v. Wilson, 99 Ga. App. 219, 221 (108 SE2d 137) (1959).

OCGA § 34-9-60 grants the board the power to “make rules, not inconsistent with this Title, for carrying out the provisions of this Title.” These rule-making powers are limited to procedural and administrative matters. Holt Svc. Co. v. Modlin, 163 Ga. App. 283, 285 (1) (293 SE2d 741) (1982).

Rule 102 (b) (3) provides that “[i]n cases pending before an administrative law judge, the record shall not remain open longer than 30 days without express permission of the administrative law judge granted within the initial period.” (Emphasis supplied.)

Here, there was a specific prohibition in the board’s October 1985 order of any extension beyond the sixty days without approval of the board. Nothing was done by either the board or the ALJ within the sixty days. Even if the ALJ had power within that period to grant an extension, he was not authorized to grant any extension outside of that period. Rule 102 (b) (3).

The board may not independently receive the medical reports authorized by OCGA § 34-9-102 (e) (2). These must be received by the ALJ. Binswanger Glass Co. v. Brooks, 160 Ga. App. 701, 703 (1) (288 SE2d 61) (1981).

The court cited no authority for its conclusion that the board had impliedly ratified the ALJ’s extension of its order, and I have found none. Both board and ALJ were authorized to act only within their authority provided by statute or by rule.

Also, the fact that employer/insurer availed itself of its statutory right to cross-examine the doctors providing the reports, OCGA § 34-9-102 (e) (2), and was timely granted extensions by the ALJ, does not justify the extensions to the claimant. The orders granting these extensions do not expressly prohibit extensions beyond a specified time as did the board’s remand order.

In these circumstances, considering these reports was error. Binswanger, supra at 703.

2. The employer/insurer assigns error also with regard to the content of the reports. At the time they were tendered, objection was made on the grounds that none of the six doctors had examined Mozley and that the hypothetical question propounded to them contained numerous facts not in evidence. As the superior court acknowledged in its affirmance of the board’s order, there are numerous errors and omissions in the hypothetical. That court concluded, however, that any harm was cured by the employer/insurer’s cross-examination.

“To qualify as a compensable injury under our workers’ compensation law, ‘heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis . . . (must be) shown by a preponderance of competent and credible evidence ... (to be) attributable to the performance of the usual work of employment.’ OCGA § 34-9-1 (4).” Southwire Co. v. Eason, 181 Ga. App. 708, 709 (353 SE2d 567) (1987).

Except as specifically altered by the workers’ compensation statute, the rules of evidence pertaining to the trial of civil nonjury cases in the superior courts apply. OCGA § 34-9-102 (e) (1). OCGA § 34-9-102 (e) (2), one of those exceptions, provides that a medical report on a form prescribed by the board or in narrative form signed and dated “by an examining or treating physician or other duly qualified medical practitioner shall be admissible in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, and prognosis by the person signing the report, as if that person were present at the hearing and testifying as a witness. ...” (Emphasis supplied.)

Since the doctors whose reports were tendered were not treating or examining physicians, they must be considered as “other duly qualified medical practitioners.” The reports are admissible if they are the basis for the physician’s opinion as an expert. OCGA § 24-9-67. Such an opinion may be given on facts proved by other witnesses, but it must be based on proven facts. Home Ins. Co. v. Miller, 146 Ga. App. 101 (245 SE2d 456) (1978); see Fox v. Liberty Mutual Ins. Co., 125 Ga. App. 285, 287 (187 SE2d 305) (1972).

While a non-examining doctor may give his opinion based on an accurate hypothetical or upon a review of the evidence given at the hearing and the medical records of the deceased, neither was done here. See Southwire Co. v. Cato, 179 Ga. App. 762, 766 (347 SE2d 656) (1986). The doctors relied upon in the board’s order had seen only the erroneous hypothetical. Two stated that they also saw the autopsy report; the others may have also seen the emergency room records. None had reviewed any of the testimony concerning the deceased’s job duties and his activities on the day of his death.

Decided March 18, 1988

Rehearing denied April 1, 1988

Michael Jablonski, Jennifer L. Houser, for appellants.

John M. Strain, for appellee.

While the admission of these opinions may not be an independent ground for reversal, had they been timely submitted, see Nationwide Mut. Ins. Co. v. Porter, 150 Ga. App. 513, 515 (258 SE2d 135) (1979), the case would at least have to be remanded for reconsideration by the board to determine whether, absent the improperly admitted evidence, there is any admissible evidence to medically connect the heart attack to the deceased’s job. Fidelity & Cas. Ins. Co. v. Cigna/Pacific &c. Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702) (1986).

3. It is noted that J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 (157 SE2d 806) (1967), cited in Division 2 of the majority opinion, is a non-precedential case.

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


author: McMurray, Presiding Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    75690.
    GRAVES v. BUILDERS STEEL SUPPLY et al.
    (368 SE2d 188)
   McMurray, Presiding Judge.

In this workers’ compensation case, we are called upon to decide whether claimant’s injury arose out of his employment. In making our decision, we apply the holding enunciated in Pike v. Md. Cas. Co., 107 Ga. App. 49 (129 SE2d 78): “If an employee is injured while doing something in the interest of his employer, which is reasonably necessary or incident to his regular work, the injury arises out of his employment. This is true even though the employee has no special permission from the employer to do the particular act and it is beyond the scope of his regular duties.” Id. at 51.

Claimant was employed as a grinder by the employer. In that capacity, claimant used a grinding machine to smooth steel fence parts. One afternoon, after finishing his work, claimant noticed that a belt on a drill press was loose. The drill press had been used by a company employee who was not on the premises at the time. Claimant was not authorized to use the drill press. He was acquainted with it, however, because he used a similar machine in high school.

Claimant tried to replace the belt on the drill press. In the process, it started up and claimant’s finger was injured. Subsequently, a portion of claimant’s finger was amputated.

Claimant sought a hearing when the employer controverted his claim for benefits. After a consideration of the evidence, the administrative law judge entered an award in favor of the employer. The board (with one member dissenting) reversed. It found that “claimant was injured while performing a task which was in the interest of the employer.” Citing Pike v. Md. Cas. Co., 107 Ga. App. 49, supra, it concluded that claimant’s injury arose out of his employment. The superior court reversed the award of compensation, concluding that the act of replacing the belt was not reasonably necessary or incident to claimant’s regular work.

We granted claimant’s application for discretionary review and this appeal followed. Held:

Our Workers’ Compensation Act is “a humanitarian measure” which should be liberally construed to effectuate its purposes. Samuel v. Baitcher, 247 Ga. 71, 73 (274 SE2d 327). Liberally construing the Act, we are led to conclude that claimant sustained a compensable injury.

Claimant operated a grinding machine; he was injured when he attempted to replace a belt on a drill press which had been used by a co-employee. In our view, the gap between claimant’s regular work and the repair of the drill press is narrow enough to conclude that the attempted repair was an incident of claimant’s regular work. See Pike v. Md. Cas. Co., 107 Ga. App. 49, 51, supra; Employers Ins. Co. of Ala. v. Wright, 108 Ga. App. 380, 382 (133 SE2d 39). See also Houser v. Young, 25 S2d 421 (Ala. 1946). To hold otherwise is simply unreasonable. “[I]t would be contrary not only to human nature but to the employer’s best interests to forbid employees to help each other on pain of losing compensation benefits for any injuries thereby sustained.” 1A Larson, Law of Workmen’s Compensation, § 27.12.

The evidence was sufficient to support the board’s conclusion that claimant’s injury arose out of his employment. Claimant was injured while performing an act which benefitted the employer; the act was an incident of claimant’s regular work. See Pike v. Md. Cas. Co., 107 Ga. App. 49, 51, supra. It follows that the superior court erred in reversing the award of the board. Banks v. Royal Globe Ins. Co., 160 Ga. App. 18 (286 SE2d 309). See also Clark v. Ga. Kraft Co., 178 Ga. App. 884, 886 (345 SE2d 61).

Judgment reversed.

Deen, P. J., Carley, Sognier, Pope and Ben-ham, JJ., concur. Deen, P. J., also concurs specially. Birdsong, C. J., Banke, P. J., and Beasley, J., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring with the majority opinion, I wish to add the following observations. Cases of this type particularly seem to result in splintered opinions, decided upon a case-by-case basis.

In Parker v. Travelers Ins. Co., 142 Ga. App. 711, 712 (236 SE2d 915) (1977), it was held that a truck driver, dockman, and part-time mechanic, who was injured while working during slack periods on personal cars, was entitled to compensation as his injury arose out of his employment. Parker is a full panel decision, rarely seen in cases of this nature, and even in it one judge felt compelled to concur specially.

The whole court case of Edwards v. State, 173 Ga. App. 87 (325 SE2d 437) (1984) (this writer dissenting), held by a six-to-three vote that a secretary who was regularly procuring lunch away from the office for her manager at a time period not coinciding with her own lunch break and was injured when obtaining a fast food chicken order, was within the scope of her employment at the time of her injury. Extending the rationale of the latter case to its logical conclusion, if a state employee suffers an injury on state time while away from the office shopping for groceries, taking cleaning to the laundry, mowing the lawn, or even baby sitting for the boss (all to enable him to remain at his desk more and to better perform his work), the injury would, arguably, be compensable under the cited cases because the employer enjoyed a benefit from the activity.

In the instant case, the employee was injured on the job site while trying to repair a belt on a drill press of a fellow employee, whereas his particular job assignment was operating a “grinding machine.” In considering whether these acts arose out of the scope of employment, it appears that the instant case has more similarities than dissimilarities to Parker, where the mechanic was working on personal cars of other employees, and Edwards, where the secretary was running throughout the city procuring lunch at different places for her manager.

I acknowledge that we are bound by the holdings in Edwards and Parker, and note that wider gaps do exist and dissimilarities outweigh similarities in some cases. For example, in a case where the employee was assigned the task of building turkey pens for a corporate president whose hobby was raising turkeys, American Mut. Liability Ins. Co. v. Lemming, 187 Ga. 378 (200 SE 141) (1938), and in a case where the employee decided to go eighteen miles farther to Tybee Beach to get a fresh seafood dinner and see the ocean, rather than eating in Savannah where the company meeting was held, U. S. Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823 (5 SE2d 9) (1939), compensation was denied on the basis that the acts did not arise out of and in the course of employment.

I believe that the cases seem to point to the conclusion that these types of situations almost always require a case-by-case analysis, very similar to our approach in slip and fall cases. While sympathizing with the dissent’s position, I also believe that the act here arose out of employment, as well as in the course of employment.

Beasley, Judge,

dissenting.

I respectfully dissent because, as correctly concluded by the ALJ and by the superior court in its well-reasoned judgment, the injury did not “arise out of and in the course of’ the employee’s employment.

The material facts are not disputed. Graves worked for Builders as a grinder of steel parts used in the manufacture of steel fences. He stated that that was his job. The only machine he was authorized to operate by and for Builders was the grinder. He was not authorized to operate the drill press. Not only that, maintenance was not part of his job.

On the day of his injury, Graves had clocked out and had proceeded on his way out of the work area when he noticed a belt loose on the drill press. He diverted from his path and attempted to replace the belt. He had never done this before. In the process the machine turned on and cut off a portion of his finger. The only acquaintance he had with this type of machine was his use of a drill press while in high school. The only reason he gave for his attention to this machine was that it had been used by a friend, who was not present at the time. Operating the drill press was not part of the friend’s job either.

1. Claimant’s Enumerations 1 and 2 deal with his contention that the superior court and this court are both bound by the “any evidence” rule to affirm the finding of the board. The superior court’s order shows that it was premised on the facts found by the board, which were basically undisputed by the litigants. Where, as here, “the facts in a workmen’s compensation case are undisputed, whether the injury arose out of and in the course of employment is a question of law. . . . [Cits.]” Travelers Ins. Co. v. Smith, 91 Ga. App. 305, 308 (85 SE2d 484) (1954); McElreath v. McElreath, 155 Ga. App. 826, 827 (1) (273 SE2d 205) (1980). The question is whether the court correctly applied the law to the board-found facts.

2. Georgia law provides coverage for those injuries “arising out of and in the course of the employment. . . .” QCGA § 34-9-1 (4). These terms are not synonymous. “In the course of the employment” is fulfilled when the injury occurs during the period of the employment, at a place where the employee may reasonably be during the performance of his duties, and while the employee is performing those duties or engaged in something incidental thereto. Murphy v. ARA Svcs., 164 Ga. App. 859, 861 (298 SE2d 528) (1982), and cases cited therein.

The requirement that the injury “arise out of the employment” is fulfilled “when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of the employment.” Hartford Accident &c. Co. v. Zachery, 69 Ga. App. 250 (1) (25 SE2d 135) (1943). “The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service.” Employers Ins. Co. of Ala. v. Wright, 108 Ga. App. 380, 382 (133 SE2d 39) (1963).

In reversing the ALJ, the board held that “[a]lthough claimant was not asked by employer to replace the belt and while claimant did not normally perform maintenance work as part of his work duties, the Board nevertheless finds claimant was performing a job in the interest of the employer and beneficial to the employer. Consequently, the Board finds claimant’s injury arose out of and in the course of his employment.” The board relied solely on Pike v. Md. Cas. Co., 107 Ga. App. 49 (129 SE2d 78) (1962).

The employee argues that the “course of employment” prong has been met, because an employee has a reasonable time for egress from his immediate place of work during which he remains in the course of his employment. West Point Pepperell v. McEntire, 150 Ga. App. 728, 729 (1) (258 SE2d 530) (1979). However, the employee had left his course and purpose of egress to engage in an undertaking on his own and outside of the egress portion of the “course of employment” continuum and zone. He was no longer in a physical place for the performance of his own duties or for some engagement incidental thereto, and this did not occur while attending to his departure. Murphy, supra.

The superior court reversed the board on the ground that “benefit to the employer” is not the only criteria under Pike, concluding that the act done by the employee must also be “reasonably necessary or incident to his regular work,” that is, arising out of it.

The board’s analysis of the case used “benefit to the employer” as the sole basis for determining if the injury arose out of the employment. Pike is not that narrow. It involved a district office and sales manager for a company selling houses. The company gave him wide latitude in when and where he worked, and he had authority to hire others to sell for him. Pike had met a soldier at a nightclub for the purpose of discussing his being a “bird dog” for sales prospects. He and Pike would split the commission on any sales so consummated. Driving home, Pike was killed in a wreck in his company car.

“The question is whether the deceased was acting in furtherance of his employer’s business — selling houses. Selling includes finding prospects. [Cits.] If an employee is injured while doing something in the interest of his employer, which is reasonably necessary or incident to his regular work, the injury arises out of his employment. This is true even though the employee has no special permission from the employer to do the particular act and it is beyond the scope of his specific duties. And it applies especially when the employee has no instruction from the employer prohibiting the act, and when the employee has some discretionary authority. [Cits.] Accordingly, the deceased’s recruitment of Lahiff as a ‘bird dog’ to contact and talk with prospects for the sale of houses could be within the deceased’s discretion as reasonably necessary and incident to his regular work; and his death while traveling on the highway incidentally to this activity could be compensable. [Cits.]” Pike, supra at 51. (Emphasis supplied.)

Thus, benefit to the employer is insufficient. The task must be reasonably necessary or incident to the regular work of the injured employee. As illustrated by Pike, this depends on the nature of the employment, including whether the employee has any discretion in the time, place, and manner of performing his work. While Pike apparently had such discretion, there is no evidence that Graves did. Even if an employee has discretion, that does not bring all he does within this requirement. The act must be one he was directly employed to do or reasonably necessary to be done in order to perform the act he was hired to do. U. S. Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823, 829 (5 SE2d 9) (1939).

The decision as to the parameters of an employee’s job responsibility is not made solely by the employee. The employer decides the range and scope and must have some authority over the employee’s activities. These two elements, job responsibility and employer input, must both be present. On the other hand, an employer and its insurer should not be held liable for gratuitous acts of an employee not reasonably contemplated as arising out of his employment. Otherwise the employee’s totally self-determined acts, beyond the parameters of his duties as assigned by the employer who is responsible for workers’ compensation benefits, and thus also beyond the contemplated risk, will perforce be covered. Here the act was even outside the duties of the co-employee he was attempting to help, which claimant knew. Conversely, mere direction by an employer to an employee to do something not connected with the employer’s business and the employee’s job in it will not suffice. American Mut. Liability Insurance Co. v. Lemming, 187 Ga. 378 (200 SE 141) (1938). The employer’s no-fault liability is restricted by only one condition on the employee’s claim which the law substitutes for the tort liability defenses which the employer surrenders. As Justice Duckworth clearly stated in Slaten v. Travelers Ins. Co., 197 Ga. 1, 2 (28 SE2d 280) (1943): “the single and only requirement [is] that the injury resulted from an accident arising out of and in the course of the employment.” The employer’s liability is limited to those parameters.

Decided March 18, 1988

Rehearing denied April 1, 1988

John F. Sweet, for appellant.

Robert A. Barnaby, Michael A. Coval, for appellees.

In Hall v. West Point Pepperell, 133 Ga. App. 24 (209 SE2d 659) (1974), the employee was required to remove boxes of metal bands removed from bales of fiber. A hyster had been parked in front of these boxes. While he was not required to drive the hyster as part of his employment duties, this was deemed reasonably necessary and incidental to his regular work, and his injury while driving the hyster out of the way of the boxes was covered.

Contrary to appellant’s position, Edwards v. State, 173 Ga. App. 87 (325 SE2d 437) (1984), acknowledges that the task must be within the scope of the injured employee’s employment. Id. at 89. That is what was missing from the board’s award here and what must be present along with “in the course of employment” before an accident is covered.

Houser v. Young, 25 S2d 421 (Ala. 1946) is inapposite because replacing the belt was part of the claimant’s job.

The superior court correctly reversed the Workers’ Compensation Board’s grant of benefits, which were awarded after the ALJ properly denied benefits.

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


text:
    75773.
    SOUTHERLAND et al. v. DALTON PAVING & CONSTRUCTION, INC.
    (368 SE2d 193)
   McMurray, Presiding Judge.

On December 9, 1985, defendant Dalton Paving and Construction, Inc. (“Dalton Paving”) was involved in a construction project of re-surfacing and widening a stretch of Highway 53 in Gordon County. The work was being done on alternate sides of the roadway. One side of the roadway was left open for use by traffic which was regulated by defendant Dalton Paving’s flagmen and a pilot vehicle.

At approximately 2:15 p.m. on December 9, 1985, a number of west bound vehicles were stopped, waiting for traffic from the opposite direction to clear so that they could proceed across the construction site. Milton Hale and his wife Eva Hale were in a pick-up truck at the rear of this line of stopped vehicles when defendant Scott, driving a dump truck owned by defendant Hall, approached the construction site. As defendant Scott rounded a curve and came over a hill toward the construction project, he could feel his air brakes losing pressure. Defendant Scott, seeing the column of traffic in the right lane in front of him, began to blow the horn continuously and steered the dump truck toward the lefthand side of the road, intending to ditch the dump truck on the lefthand embankment, but there was a semi-tractor trailer coming toward him in that lane so he turned the dump truck back to the right in an attempt to ditch it on the right-hand side of the road when the dump truck collided with the rear of the Hales’ pick-up truck.

Eva Hale was killed and Milton Hale severely injured in the collision. This action presents claims on behalf of Milton Hale seeking damages for his personal injuries and property damage, and a claim for damages for the wrongful death of Eva Hale by Milton Hale and the three children of Eva Hale.

Following discovery the superior court granted defendant Dalton Paving’s motion for summary judgment. Plaintiffs appeal, contending that the record presents genuine issues of material fact as to whether negligence of defendant Dalton Paving was a proximate cause of the injuries to Milton and Eva Hale. Held:

Plaintiffs’ argument suggests a plethora of issues remaining for a jury. Most of the suggested issues involve the flagman at the worksite and arise from safety considerations in regard to the control of traffic through highway construction areas set forth in the Work Zone Traffic Control Standards and Guidelines, 1985 edition, which are made applicable to all public roads in accordance with the provisions of 23 USC §§ 109 (b), 109 (d), 402 (a), and 23 CFR 1204.4.

Tanksley, the flagman at the position where the Hales were stopped, testified in his deposition that the first vehicle stopped at his position was a tractor and trailer, that he was on the shoulder of the road (on the right side of the tractor and trailer), and that he didn’t see anything, but heard a crash. When asked about hearing a horn blowing, Tanksley replied that he heard “no more than they do when the traffic is setting,” and “I didn’t hear it blow but about one time, and just barely did hear it then. That tractor and trailer was sitting there running.”

The Work Zone Traffic Control Standards and Guidelines § 6F-5 provides in part that the “flagger should stand either on the shoulder adjacent to the traffic being controlled or in the barricaded lane.” In the case sub judice, the uncontroverted evidence shows that Tanksley, the flagman, was positioned in accordance with this language, but due to a line of stopped vehicles and the size of the first vehicle in line, he was not within a line of sight to the approaching dump truck driven by defendant Scott. Nor was the flagman afforded an audible warning due to the proximity of the idling engine of the first stopped vehicle.

Under the circumstances of the case sub judice, none of the arguments of plaintiffs suggesting hypotheses under which the flagman may have averted the disaster had he been aware of the developing crisis is viable. The record presents no genuine issue of material fact in regard to the conduct of the flagman.

Apparently relying upon portions of the Work Zone Traffic Control Standards and Guidelines, which are not contained in the record, plaintiffs argue that the collision may have been prevented if defendant Dalton Paving had fulfilled a duty to provide a roadside recovery area. While the record fails to show whether such a recovery area existed, the uncontroverted evidence shows that the recovery area issue was not a factor in the events which transpired. Defendant Scott was unable to ditch his dump truck on the left due to oncoming traffic or on the right due to the collision.

There was uncontroverted evidence as to numerous signs being in place on the highway to warn traffic approaching the worksite. This evidence was not contradicted by that portion of the affidavit of Scott stating that he did not see the flagman or his warning flags.

Finally, we find no error in the trial court’s refusal to strike portions of the affidavit of the foreman at the scene for defendant Dalton Paving.

Negligence issues are not susceptible of summary adjudication except in plain, palpable and indisputable cases. Spivey v. Vaughn, 182 Ga. App. 91 (354 SE2d 870); Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477). When a motion for summary judgment is made and supported by evidence, respondent may not rest upon the mere allegations of his pleadings, but his responses must set forth specific facts showing that there is a genuine issue for trial. In the absence of such response, summary judgment is appropriate. OCGA § 9-11-56 (e); Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465); Zappa v. Allstate Ins. Co., 118 Ga. App. 235 (2) (162 SE2d 911). In the case sub judice, defendant Dalton Paving successfully met its initial burden of proof by negating at least one essential element of plaintiffs’ case under every theory presented by the pleadings and evidence. Plaintiffs having failed to produce any evidence in rebuttal, no genuine issue of material fact remains for a jury. There was no error in the grant of summary judgment in favor of defendant Dalton Paving.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Sognier and Benham, JJ., concur. Been, P. J., Carley, Pope and Beasley, JJ., dissent.

Deen, Presiding Judge,

dissenting.

While I concur fully with the other dissent filed, it should be noted that two of the four cases relied upon by the majority are only physical precedents, persuasive but not binding upon this court, to wit: Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477) (1986) (whole court vote of three judges concurring, two judges concurring specially, and 4 judges dissenting); and Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983) (two judges concurring and the author of the majority in the case sub judice concurring in the judgment only). The status of the latter two cases should be identified in the instant case, as they purport to be dressed in the vestments of precedent, “[b]ut as a result of patient investigation we find this case, after all, is of that common variety known as a ‘tomtit,’ though vestured in all the plumage of a peacock.” Central of Ga. R. Co. v. Bickerson, 15 Ga. App. 293, 296 (82 SE 942) (1914); quoted in Sanders v. State, 164 Ga. App. 13, 14 (296 SE2d 213) (1982).

Beasley, Judge,

dissenting.

I respectfully dissent, as the record shows there are material facts in dispute related to whether or not Dalton Paving failed “ ‘to exercise ordinary care to warn persons using the road of hazards created by its own activities.’ ” M. R. Thomason & Assoc. v. Wilson, 125 Ga. App. 658, 662 (5) (188 SE2d 805) (1972); State Constr. Co. v. Johnson, 88 Ga. App. 651, 657 (3) (77 SE2d 240) (1953). The specific failures listed by plaintiffs do not succumb to conclusive evidence to the contrary. Instead, conflicting evidence on at least some of the particular allegations renders them determinable by a jury.

For example, if the duty of the flagman was to warn approaching traffic of the hazard and control the flow of traffic in such a manner so as not to endanger approaching traffic, the fact that he located himself in such a manner and place so that the result was he could not be seen by the driver of the approaching truck, nor could he see the truck, raises an issue as to whether his duty was fulfilled. Had he been in a position to better observe and be better observed, he who was in control of traffic through the site might have been able to clear the way for the runaway truck or direct it to a collision-avoiding path.

Decided March 18, 1988

Rehearing denied April 1, 1988

Howard W. Jones, Bobby Lee Cook, for appellants.

Henry C. Tharpe, Jr., William P. Bailey, for appellee.

Another example is whether defendant’s duty to place advance warning of the construction was fulfilled. This site was at the bottom of a steep curve in the road. The evidence does not show conclusively that appropriate signs and/or flagman were located far enough before the highway stop site so as to give adequate reaction time to normally traveling vehicles, including heavy trucks. A third example is whether defendant should have provided an adequate roadside recovery area in these circumstances, as there was no recovery area on the right into which the runaway truck could maneuver instead of hitting the stopped Hale truck.

The affidavit of the foreman, defendant’s sole evidence submitted in support of the motion for summary judgment, does not pierce plaintiffs’ pleadings and furthermore does not stand uncontradicted. See, as controlling here, the cases cited in the non-precedential opinion of Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983). Moreover, in some respects it contains not facts but rather conclusions, which cannot be considered. OCGA § 9-11-56 (e); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981); Morton v. Stewart, 153 Ga. App. 636, 643 (2) (266 SE2d 230) (1980). He did not even see the collision or the material circumstances especially concerning the flagman which existed at the time of or immediately preceding the occurrence.

I am authorized to state that Presiding Judge Deen, Judge Carley, and Judge Pope join in this dissent.


author: Banke, Presiding Judge. Benham, Judge, Beasley, Judge,

text:
    75780.
    SHIVER et al. v. SINGLETARY et al.
    (368 SE2d 523)
   Banke, Presiding Judge.

The Shivers sued Singletary and Roehm to recover damages arising from an injury Mr. Shiver suffered when he slipped and fell in a grocery store allegedly owned by a partnership comprised of the two defendants. This appeal is from the grant of the defendants’ motion for summary judgment.

In support of their motion for summary judgment, the defendants relied on an affidavit submitted by Roehm and on Shiver’s deposition. In his affidavit, Roehm averred that the floor in the part of the store where Shiver fell was sealant-coated concrete which was smooth but not slippery; that he had been unable to find any foreign substance on the floor in the area where Shiver said he fell; that the part of the store where the fall occurred was accessible to customers and to vendors as well as employees; and that he had no notice prior to the fall that any foreign substance was on the floor. Shiver testified in his deposition that he went to the back of the store to use the restroom; that the lighting was good, and the floor was dry and clear; that, as he walked through a set of swinging doors leading to the back of the store, “there was a guy on my right that was prepping turnips or collards or something of that nature”; that although he was looking at the floor as he walked the approximately 60 feet from the swinging doors to the restroom he saw nothing there before he fell; and that after he fell he saw what appeared to be a wet skid mark left by his boot. Held:

1. The grant of summary judgment to appellee Singletary has been acquiesced in by appellants, so the portion of the judgment in his favor is affirmed without discussion.

2. “Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive.” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). Although defendant Roehm’s affidavit establishes without dispute that he had no actual knowledge of the presence of a foreign substance on the floor, it does not establish a lack of actionable constructive knowledge on his part. Accord Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988); Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988).

A lack of actionable constructive knowledge is normally established in such cases by evidence or compliance with reasonable inspection and/or cleaning procedures. See, e.g., DeGracia v. Huntingdon Assoc., 176 Ga. App. 495 (1) (336 SE2d 602) (1985); Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987); and Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987). No such evidence was presented in this case. Moreover, even had such evidence been offered, it would not necessarily have established a lack of actionable constructive knowledge on Roehm’s part, given Shiver’s testimony that the skid mark where he slipped appeared to be wet and that there was an individual standing nearby at the time “prepping” vegetables.

“[T]he proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor ‘was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.’ ” Alterman Foods v. Ligon, supra, 246 Ga. at 622. Accord Fletcher v. Family Center, 169 Ga. App. 376 (312 SE2d 856) (1983); Piggly Wiggly Southern v. Erfourth, 152 Ga. App. 468 (1) (263 SE2d 249) (1979). Shiver’s testimony is both consistent with and suggestive of the hypothesis that there was a store employee standing in the immediate vicinity washing vegetables shortly prior to his fall, who may have been responsible for the presence of moisture on the floor. We do not mean to imply that this testimony would be sufficient to create a jury question on the constructive knowledge issue during the trial of the case, when the burden of proof would be on the plaintiff. However, on motion for summary judgment the burden was on defendant Roehm, as movant, to come forward with evidence tending to show that he did not have constructive knowledge of the presence of the alleged hazard, and this he clearly failed to do.

“On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). (Emphasis supplied.) See generally OCGA § 9-11-56 (c). “To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery . . . under every theory fairly drawn from the pleadings and evidence (cits.) and, if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. (Cits.) And until movant has made a prima facie showing by evidence which demands a finding in his favor as to the particular matter, there is no duty upon the opposing party to produce rebuttal evidence. (Cits.)” Henderson v. Atlanta Transit System, 133 Ga. App. 354, 356 (210 SE2d 845) (1974). (Emphasis from original.) Accord Epps Air Svc. v. DeKalb County, 147 Ga. App. 195, 196 (248 SE2d 300) (1978).

The appellees rely upon this court’s recent decisions in Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986), and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987), as authority for the proposition that where a defendant in a “slip and fall” case moves for summary judgment and offers evidence tending to establish that he had no actual knowledge of the presence of the alleged hazard, the burden shifts to the plaintiff to come forward with evidence which either creates a factual dispute on that issue or tends to show that the defendant at least had constructive knowledge of the presence of the hazard. However, the plaintiff, as respondent on motion for summary judgment, cannot properly be called upon to offer proof of actionable constructive knowledge on the part of the defendant until the defendant, as movant, has come forward with evidence tending to negate the existence of such knowledge. To the extent that Bright v. Food Giant, supra, and Newman v. Ruby Tuesday, Inc., supra, may be read as authority altering this burden of proof on motion for summary judgment, they are hereby overruled; and the grant of summary judgment to defendant Roehm in this case is hereby reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Carley and Pope, JJ., concur. Beasley, J., concurs specially. Birdsong, C. J., Deen, P. J., Sognier and Benham, JJ., concur in part and dissent in part.

Benham, Judge,

concurring in part and dissenting in part.

Although I concur with the affirmance of the judgment in favor of Singletary, and agree with the majority that Roehm’s lack of actual knowledge of any hazard was established by the record, I cannot agree that the evidence did not establish a lack of constructive knowledge as well. It is not enough to look only at the affidavit of one of the defendants and say that the affidavit does not establish a lack of constructive knowledge. We must look also at the deposition of Shiver. It is established there that the floor appeared to be clear and dry. Shiver walked past the same spot on the way to the rest room without any problem, but fell on his way back. If the hazard came to be on the floor after he had passed, but before he returned, a time established by Shiver as two or three minutes, it can hardly be said that it was there long enough for Roehm to be charged with knowledge of its existence.

I cannot agree with the majority that the evidence warrants an inference that a store employee could have seen the hazard or placed it there. Shiver testified that he entered the back of the store and turned to his left to go to the rest room, and that he saw an employee off to his right working at a table “prepping” some kind of vegetable. The employee was not, from what Shiver said, in a position to put anything in Shiver’s path. In addition, there was no vegetable matter found by Shiver or by any agent of appellee in the area where Shiver fell. Shiver stated that there appeared to be water on the skid mark he made when he fell, but there is nothing in the record to indicate that any employee of the store was using water in the area. The majority’s assertion that Shiver’s testimony is “consistent with and suggestive of the hypothesis that there was a store employee standing in the immediate vicinity washing vegetables shortly prior to his fall, who may have been responsible for the presence of moisture on the floor” is totally without evidentiary support. Shiver said there was an employee “on” his right as he went to the rest room; since there is no evidence to establish the dimensions of the space through which Shiver was walking, that testimony does not establish that the employee was in Shiver’s immediate vicinity. Shiver’s testimony concerning the employee’s activity was that the employee was “prepping” or “working on” some kind of vegetable. There is no evidence in the record that “prepping” vegetables means washing them, and this court is not empowered to assume that it does. Shiver had just come from the rest room, and it is as valid to infer that he somehow got his foot wet there as it is to infer that a store employee was responsible. Concluding that a store employee could see anything on the floor or placed anything there is a mere supposition rather than an inference.

To reverse the judgment in favor of Roehm and to overrule Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987), and Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986), is to abandon the basic principle that an owner’s superior knowledge of the hazard is essential to his liability. The majority’s position is that whenever employees are anywhere near a fall, whether the cause of the fall can be ascertained beforehand or not, the owner may be liable. That is not the law of this State, and I cannot join in making it so. “[The majority] seeks to invoke a conclusion that because [appellee’s employee was] present near the scene of the slip and fall [appellee] constructively was aware of the dangerous situation caused by the slippery substance. The fallacy of the supposition of constructive knowledge is that the condition must in fact exist and for a sufficient period of time in the immediate vicinity of the proprietor’s agents so that constructive knowledge may be imposed. [Cit.]” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987).

Bright does not purport to change the burden of proof in slip and fall cases; it merely held that where all the evidence points to a lack of knowledge, and the plaintiff cannot counter that lack of knowledge, the defendant is entitled to judgment. While Bright might be clearer in holding that the defendant had already pierced the allegations of the complaint and shifted the burden to the plaintiff, Newman is not subject to that criticism. It is clear from the opinion in that case that the defendant submitted sufficient evidence to the trial court to show a lack of both actual and constructive knowledge of the defect. That is the situation in this case. I must, therefore, dissent to the reversal of the judgment in favor of Roehm.

I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this opinion.

Beasley, Judge,

concurring specially.

I concur in the judgment only, because there is evidence which would support a reasonable inference that what plaintiff slipped on was water coming from the employee’s activity of “prepping” vegetables, indicating some lack of care.

Decided March 18, 1988

Rehearing denied April 1, 1988

B. B. Earle, Jr., for appellants.

William C. Sanders, for appellees.

Thus this case differs from Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986) and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987), where there was no evidence to support an inference that the foreign substance was on the floor due to the action of defendant or one of its employees. As quoted in Bright, supra at 642: “Georgia courts have uniformly held that where the customer slips on a substance placed on the floor by others than the owner, it is necessary to prove that the defendant had knowledge or that under the circumstances he was chargeable with constructive knowledge of its existence.’ [Cits.]” (Emphasis supplied.) These two cases should not be overruled.


author: Pope, Judge.

text:
    75545.
    LORIE et al. v. STANDARD OIL COMPANY et al.
    (368 SE2d 765)
   Pope, Judge.

Plaintiff Rudolfo Lorie instituted the present action seeking damages for injuries he allegedly sustained during an attempted rescue of an excavation worker who was trapped when the pit he was working in collapsed. Plaintiff’s wife, Mirta Lorie, also sought damages for loss of consortium.

The record shows that on March 10, 1984 defendants were in the process of digging a pit in order to install underground gasoline tanks in the parking lot of a gasoline service station in Savannah, Georgia. Lorie, an army medic, was employed part-time at the service station, but was not involved in the excavation project. Upon apprehending that a cave-in had occurred, Lorie ran to the pit, got down on all fours, looked down into the hole, and then jumped down onto one of the gasoline storage tanks, where he was either hit on the head by a falling object or hit his head on something in the pit. Both Lorie and the trapped worker, who was rescued by employees of defendants, were taken to a nearby hospital where Lorie was treated and released. The treating physician characterized Lorie’s injury as a “superficial abrasion.”

Lorie, however, continued to experience both physical and emotional difficulties and was subsequently diagnosed as having suffered organic brain damage. Lorie presented evidence at trial that these continuing problems caused him to leave the army and to have trouble in maintaining employment. On the other hand, defendants presented evidence tending to show that Lorie’s emotional difficulties pre-dated his injury, that Lorie was exaggerating his mental and emotional problems and that the superficial laceration he received during the attempted rescue of the trapped worker was insufficient to cause the mental and emotional problems subsequently experienced by him. The jury returned a verdict for Lorie on his damages claim, and against plaintiff Mirta Lorie on her loss of consortium claim, and awarded Rudolfo Lorie $1,650.65 in special damages, $2,301.30 in general damages and $10,000 from each defendant in punitive damages. Plaintiffs appeal and seek a new trial based on alleged errors in the trial court’s charge to the jury which they contend resulted in an improper diminishment in the damages awarded.

1. Plaintiff contends that the trial court erred in instructing the jury that he was charged with exercising ordinary care for his own safety in the attempted act of rescue, and argues that the trial court should have instructed the jury that the appropriate inquiry in a rescue situation is whether the rescuer acted heedlessly, rashly or wantonly. In this regard, plaintiff also contends that the trial court erred in charging that, as a rescuer, he could assume the risk in undertaking the rescue attempt. We agree with plaintiff that this enumeration assigning error to the charge of the court has merit.

In the present case the trial court, in pertinent part, instructed the jury as follows: “[A] 11 parties in this case had the duty to exercise ordinary care and diligence. Ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Ordinary negligence means simply the absence or the failure to exercise ordinary diligence. In considering the facts of this case, you may consider what in Georgia is called the rescue doctrine. The rescue doctrine applies when the defendants’ negligent acts or omissions have created a condition or situation which involves imminent and urgent peril to life and property. In such instances, those negligent acts or omissions are also negligent in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, attempt to rescue the endangered life or property by reasonably appropriate means. I charge you that the plaintiffs cannot recover, regardless of any negligence on the part of either of the defendants, if you find that the plaintiff Rudolfo Lorie is chargeable with assuming the risk involved. One assumes the risk of danger when one voluntarily places oneself in a situation where it is likely to strike. One who recklessly . . . and [sic] observed and clearly obvious danger and who fails to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances must be held to have assumed the risk of any resulting injury. I charge you that a person may not heedlessly rush into grave peril of the existence of which he is perfectly aware, and then hold anyone else, whether negligent or not, responsible for the consequences. Such an act of a plaintiff in and of itself amounts to a failure to exercise ordinary care and diligence for his own safety and prohibits any recovery from the defendants. Every person has a duty to exercise ordinary care for his own safety at all times, even before the negligence of another is or should be apparent. If you should determine from the evidence that Rudolfo Lorie failed to exercise ordinary care for his own safety, and that his failure on his part was the sole proximate cause of his injury, the plaintiff could not recover from any of the defendants.”

We agree with plaintiff that those portions of the charge cited above failed to make clear to the jury the standard of care applicable to plaintiff as one attempting an act of rescue and that the charge was potentially misleading and confusing to the jury as to the appropriate standard to be applied under such circumstances. “A greater risk of one’s person to save life is justified than in the effort to save property only. Rushton v. Howie, 79 Ga. App. 360 (53 SE2d 768) [(1949)]. The negligence which causes injury or danger to another is negligence also as to the rescuer, and the latter in an effort to save human life will not be barred on the ground that he did not exercise ordinary care for his own safety or even that he assumed the risk of injury to himself unless his actions are so imprudent and beyond what a person in the same circumstances might be expected to do that they must be classified as reckless or wanton. Blanchard v. Reliable Transfer Co., 71 Ga. App. 843 (32 SE2d 420) [(1944)]. Any means reasonably appropriate to the purpose may be used. There is no issue involved as to assumption of risk, since the doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendants’ negligence and allows recovery for injuries thereby incurred, for the reason that the defendants were charged with the duty of anticipating that their negligence might attract rescuers who would necessarily have to assume the dangers inherent in the situation. Walker Hauling Co. v. Johnson, 110 Ga. App. 620 (139 SE2d 496) [(1964)]. While it is true that one way the cases have phrased this problem is to say that short of reckless and wanton disregard of the imminent consequences one who attempts a dangerous act to save the life of another is in fact acting within the limits exercised by a person of reasonable prudence under the circumstances, and thus apparently to equate ‘ordinary care’ with ‘lack of wantonness’ it is nevertheless true that one does not use ordinary care in the ordinary sense of the word when one jumps in front of an automobile to rescue a child, or into a flooding river to rescue a drowning man, or attempts with his hand to knock aside an apparently insulated line which he nevertheless knows contains electricity. . . . ‘Ordinary care’ as the term is generally used, is not the criterion in this case so far as this plaintiff was concerned. It might well have misled the jury, especially in connection with the charge on the assumption of risk doctrine, to apply a higher standard of care to [plaintiff’s] actions than the circumstances warranted, and since this issue, together with whether the [defendants were] negligent in [digging the pit] are at the very center of the case, . . . the charge constitutes reversible error.” Flowers v. Slash Pine Elec. &c. Corp., 122 Ga. App. 254, 258-259 (176 SE2d 542) (1970). See generally Shugart v. Dept. of Transp., 184 Ga. App. 692 (1) (362 SE2d 474) (1987); Taylor v. Haygood, 113 Ga. App. 30 (2) (147 SE2d 48) (1966).

Decided March 24, 1988

Rehearing denied April 4, 1988

Richard H. Middleton, Jr., Eugene C. Brooks IV, Paul E. Morgenthal, for appellants.

Jordon D. Morrow, David R. Smith, for appellees.

2. We would also note, however, in an effort to avoid error on any retrial, that we disagree with plaintiff’s contention that the trial court should have omitted entirely its instruction to the jury on comparative negligence. Issues concerning plaintiff’s negligence as well as defendants’ are for the jury’s resolution. Application of the rescue doctrine does not alter this general rule. All that is required is that such negligence, if any, be determined under the appropriate standard of care. See, e.g., Walker Hauling Co. v. Johnson, 110 Ga. App. at 625, supra.

Judgment affirmed in part and reversed in part.

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

       Although plaintiffs filed a joint appeal, they have posited no argument as to how these alleged errors resulted in or contributed to the jury’s verdict against plaintiff Mirta Lorie on her loss of consortium claim. Consequently, the judgment as to plaintiff Mirta Lorie is affirmed and the remainder of this opinion will address plaintiff’s arguments only as they relate to plaintiff Rudolfo Lorie’s (hereinafter “plaintiff”) damages claim.


author: Sognier, Judge.

text:
    75824.
    HARRIS v. THE STATE.
    (368 SE2d 527)
   Sognier, Judge.

Appellant was convicted of robbery by intimidation and he appeals.

1. Appellant contends the trial court erred by denying his plea in bar of prosecution. The robbery in this case occurred in the United States Post Office in Zebulon, Georgia. Appellant’s plea in bar was based on his contention that the federal government had exclusive jurisdiction over the offense since it occurred on federal property. This contention is without merit.

Decided April 4, 1988.

OCGA § 50-2-22 gives the consent of the State of Georgia to the acquisition by the United States of any lands in the state which have been, or may be, acquired for sites for post offices. OCGA § 50-2-23 provides, in pertinent part: “Exclusive jurisdiction in and over any lands acquired by the United States as provided in Code Section 50-2-22 is ceded to the United States for all purposes except service upon such lands of all civil and criminal process of the courts of this state; . . . The state retains its . . . criminal jurisdiction over persons and citizens in the ceded territory, as over other persons and citizens in this state . . .” (Emphasis supplied.) We have held that under the quoted code section, the state retains criminal jurisdiction over persons for state offenses committed on property that has been acquired by the United States, with certain exceptions not applicable here. Jackson v. State, 183 Ga. App. 594, 595 (359 SE2d 457) (1987). Accordingly, it was not error to deny appellant’s plea in bar of prosecution.

2. Appellant alleges error by the trial court in denying his motion challenging the State’s use of peremptory challenges in a racially discriminatory manner. When such a claim is made the defendant has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury. Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988). This information was presented in this case, showing that eight of forty prospective jurors, or twenty percent, were black. Five black jurors and four white jurors were struck by the State through the use of peremptory challenges and the jury impanelled was composed of three black jurors and nine white jurors. Thus, twenty-five percent of the jury that tried appellant was black. Since the percentage of blacks on the jury was, as a result of the use of peremptory strikes, higher than that of the panel from which they were chosen, appellant did not show a prima facie case of discrimination. Id.

3. Appellant contends the trial court erred by denying his motion for a new trial. However, he has presented no argument and cited no authority in his brief in support of this enumeration of error. Hence, it is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

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

Walker L. Chandler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.


author: Sognier, Judge. Carley, Judge,

text:
    75850.
    75998.
    RANEY v. THE STATE. TATMAN v. THE STATE.
    (368 SE2d 528)
   Sognier, Judge.

Appellants were convicted in a joint trial of trafficking in cocaine and they appeal. In their sole enumeration of error appellants contend the trial court erred by denying their motion to suppress.

Evidence presented at a hearing on the motion disclosed that Kenneth Hancock of the Georgia State Patrol observed a car on 1-75 go partially into the emergency lane, travel several car lengths and return to the proper lane of travel. Hancock stopped the car to determine if the driver had been drinking; Raney was the driver of the car and Tatman was a passenger. Officer Hancock determined immediately that Raney had not been drinking, and accepted his explanation that he had been driving for several hours and fatigue probably caused him to go into the emergency lane. Raney had a valid Texas driver’s license, but had no registration for the car, which bore Illinois tags. (Hancock testified that it was not required that a person have a registration certificate in the car.) Raney told Hancock that he had moved recently from Texas to Illinois and the car belonged to a friend, although Raney could not remember his friend’s name. Hancock had radioed the tag number to his headquarters prior to stopping Raney, but did not receive a report back indicating the car was stolen. Therefore, Hancock wrote a courtesy warning ticket which he gave to Raney; at the same time he returned Raney’s driver’s license to him. Although Hancock testified that Raney was free to leave at that time, he did not inform Raney of this; rather, he started questioning Raney as to why he was on 1-75, and asked where he had been. Raney informed Hancock that he and Tatman had been in Tampa a couple of days visiting friends, and were returning to Illinois. Hancock then asked Tatman about the trip to Florida, and he stated they had been in St. Petersburg a couple of days visiting friends. Hancock then told Raney he was suspicious that some type of crime had been committed because of appellants’ conflicting stories, and because Raney could not state who owned the car. Hancock also testified he was suspicious because there was no luggage in the rear seat, although there was, in fact, a small travel bag and a couple of articles of clothing in the rear seat of the car. Because of his suspicions, Hancock asked Raney’s permission to search the car, and he replied, “[y]eah, okay.” Hancock then got a consent to search form from his patrol car, which he filled out; he gave the form to Raney and asked him to read and sign the form. Raney apparently read the form and gave no indication he did not understand it before signing the form and returning it to Hancock. Included in the form was a statement that the search was being made in connection with an investigation of a crime of illegal contraband. The form also advised Raney that he did not have to consent to a search without a warrant, and that he could withdraw his consent to search at any time. Hancock could not articulate any specific suspicion, and testified that he thought there could be a dead body in the trunk, or the car might be stolen, or appellants could be carrying drugs. When Hancock searched the passenger compartment of the car he found two suspected marijuana seeds on the right front floorboard; two suspected marijuana seeds on the right front passenger seat; and a Taco Bell paper sack on the right front floorboard which contained a plastic bag containing a green leafy substance which Hancock suspected was marijuana, and two plastic bags containing a white powder which Hancock suspected was cocaine.

Appellants argue that a general, inarticulable suspicion will not support a warrantless search, and assuming that the stop was authorized, a brief Terry stop (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)), is limited to the identification and licensing of the driver, a protective pat-down of the outer clothing for weapons if deemed necessary, and limited questioning about the circumstances that justified the initiation of the momentary stop. Appellants argue that once Hancock issued the courtesy ticket and returned Raney’s driver’s license to him, Hancock’s right to investigate under Terry stopped. They point specifically to Hancock’s testimony that once he had issued the courtesy warning ticket, the traffic enforcement aspect of the stop was terminated.

There is no question that Hancock was authorized to stop Raney to determine if he was intoxicated. While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. State v. Smith, 164 Ga. App. 142, 146 (2) (296 SE2d 141) (1982). Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. Id. Thus, once Hancock determined that Raney was not intoxicated, that he had a valid driver’s license, and that the car was not stolen (evidenced by the fact that he received no report back from his headquarters), Hancock had no authority to detain appellants further. However, even if the further detention of appellants was not authorized it does not necessarily follow that the fruits of the search should have been suppressed. Thompson v. State, 248 Ga. 343, 344 (2) (285 SE2d 685) (1981). “During recent years, the question of whether or not a defendant freely consented to a search has been determined by application of the ‘totality of the circumstances’ test enunciated in Schneckloth v. Bustamonte, 412 U. S. 218, 226 (93 SC 2041, 36 LE2d 854) (1973).” Id.

The total time elapsed in this case, from the time Hancock stopped appellants until he searched the car and found contraband, was approximately seven minutes. There is nothing to indicate that Raney did not consent freely and voluntarily to a search of his car, and the form he signed informed him fully of his rights in regard to a consent to search. There is no indication that Hancock coerced Raney in any way in order to obtain his consent to search. Even though Hancock had no probable cause and nothing more than a general suspicion that there might be contraband in the car, it is well settled that one of the exceptions to the requirement of both a warrant and probable cause is a search conducted pursuant to consent. Mancil v. State, 177 Ga. App. 663, 664 (340 SE2d 279) (1986). Considering the totality of the circumstances, we find that the consent was given freely and voluntarily, that the time involved did not constitute an unreasonable intrusion into appellants’ privacy, and even if appellant was detained beyond the time minimally necessary to investigate the circumstances which caused the initial stop, appellant Raney’s consent authorized the search. Hence, the trial court did not err in denying appellants’ motion to suppress. See Thompson, supra; Loaiza v. State, 186 Ga. App. 72 (366 SE2d 404) (1988).

Judgments affirmed.

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

Carley, Judge,

concurring specially.

I agree with the judgment of affirmance and with the general analysis of the majority opinion vis-a-vis the validity of the consent search. However, the majority characterizes the State Patrolman’s initial stop of the vehicle occupied by appellants as being a “ Terry stop (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)).” It was not. As articulated by the decision cited by the majority, State v. Smith, 164 Ga. App. 142 (2) (296 SE2d 141) (1982), a Terry stop requires only articulable suspicion. In this case, the initial stop was based upon probable cause. See generally State v. Bassford, 183 Ga. App. 694 (359 SE2d 752) (1987).

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

Decided April 4, 1988.

Robert M. Bearden, Jr., for appellant (case no. 75850).

Cynthia T. Adams, for appellant (case no. 75998).

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.


text:
    75877.
    GIBSON v. THE STATE.
    (368 SE2d 545)
   Sognier, Judge.

Appellant was convicted of aggravated assault. In his sole enumeration of error appellant contends the trial court erred by charging the jury on flight, because there was no evidence of flight.

The evidence disclosed that appellant and James Grant got into a fight outside a club, Jimmy’s Tavern, shortly after midnight on January 31-February 1, 1987 (a Saturday night). Grant was seriously cut by appellant with a razor-type box-cutter. The sheriffs office had been notified that there was a fight in progress and when a deputy sheriff, Robbie Cason, arrived two or three minutes after receiving the call, neither appellant nor Grant was present. Grant had gone to the hospital to be treated for his wounds, including a cut throat and a large cut on his back. Cason was unable to talk to Grant that night, but learned later that same morning (Sunday) that appellant was the other person involved in the fight. Cason was unable to locate appellant until Monday morning, when Cason learned where appellant was working. Appellant admitted freely that he had cut Grant, because he thought Grant might have a gun.

While there is no direct evidence that appellant fled the scene, the fact that he was not present when Cason arrived and could not be located until Monday morning could give rise to an inference that he was avoiding the police, despite the fact that he was cooperative after he was located. To justify a charge on a given subject it is not necessary that there be direct evidence going to the point; it is enough if there is something from which a legitimate process of reasoning can be carried on in respect to it. Butler v. State, 170 Ga. App. 257, 259 (2) (316 SE2d 841) (1984). Thus, we find that the charge was not error.

Even should we assume, for the sake of argument only, that the trial court erred in charging on flight, such error would be harmless. The fact that there is other evidence to convict, in and of itself, does not make the error harmless; rather, the test is whether the error may have influenced the jury’s verdict. Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985). Applying that test to the facts of the instant case, we find it unlikely that the charge on flight influenced the verdict. Thus, any error was harmless.

Decided April 4, 1988.

Joel E. Williams, Jr., for appellant.

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

Judgment affirmed.

Carley, J., concurs. Been, P. J., concurs in the judgment only.