text:
    76909.
    TOWLER v. THE STATE.
    (372 SE2d 242)
   Deen, Presiding Judge.

A Douglas County jury found appellant guilty of child molestation. On appeal he enumerates as error the trial court’s denial of his motion for directed verdict of acquittal, an allegedly fatal variance between allegata and probata, certain allegedly erroneous jury instructions, and the denial of a motion for new trial on the basis of an allegedly improper contact between a juror (here, the foreperson) and a court employee. Held:

1. We have thoroughly examined the briefs, the transcript, and the remainder of the record and find no merit in appellant’s enumerations regarding jury instructions, fatal variance, or denial of the motion for directed verdict. As to the latter, there was testimony that “75-100” separate and independent sexual acts of molestation and child abuse took place during the one or two years of camping out. Not only Boy Scout films, but also sexually explicit movies, were shown to the youngsters, seemingly as a performance blueprint of things to come, Megar v. State, 144 Ga. App. 564, 568 (241 SE2d 447) (1978), and as a stimulant to encourage subsequent sexual activity because “it feels good.” See Howell v. State, 172 Ga. App. 805, 808 (324 SE2d 754) (1984). The evidence was abundant to overwhelming in this case with regard to the general grounds.

2. We do find meritorious, however, the enumeration regarding the contact between the foreperson and the court employee. The record reveals that the jury foreperson’s mother, a court employee whose duties were unrelated to criminal justice, stated to the foreperson at the family dinner table that one of her (the mother’s) superiors at the court had said to her that she understood that the daughter was “holding out” against a guilty verdict and “was going to let a child-molester go free.” The foreperson testified that when her mother related the incident to her, she had immediately stated that, as a juror, she was not permitted to discuss the case; and that the subject was not mentioned again between them. The mother’s superior testified that she had had no intention of attempting to influence any juror when she made the remark, and that she had not expected the mother to repeat it to her daughter.

The rule in Georgia is that “a defendant is entitled to a trial by a jury untainted by improper influences. It is . . . incontestable that during the pendency of a trial, communication between a juror and a witness is error. However, we do not conclude that every improper communication is prejudicial per se.” Clark v. State, 153 Ga. App. 829, 830 (266 SE2d 577) (1980). It is the State which has the burden of proving that an unauthorized communication was not prejudicial. Smith v. State, 218 Ga. 216 (126 SE2d 789) (1962). In determining that the unauthorized contact or conversation in Clark, supra, was not harmful, the court focused on three factors: the lack of “any scintilla of evidence” that there was an attempt to discuss the merits or to exert any influence upon the juror, and the fact that the juror who was contacted did not pass the conversation on to any other juror. Id. at 830. Here, as in Clark, the information was passed on to no other juror.

As to the other two factors considered in Clark, however, the evidence is less clear-cut. Obviously, to label the defendant “a child-molester” is to express an opinion on the merits of the case. It would seem, further, that the determination of whether the contact-conversation was a knowing attempt to exert influence on the verdict must depend on a number of factors, including (but not necessarily limited to) the context in which the conversation/contact occurred, the extent to which the merits of the case were discussed, the number and identity of the person or persons to whom the remarks were addressed or who were able to hear it, and the credibility of those testifying regarding the incident. In the instant case the supervisor’s remark was made in a casual — perhaps even innocuous — context, according to the testimony; few, if any, persons were present other than the juror’s mother; the merits were not discussed extensively; and the credibility of neither the supervisor, the mother, nor the daughter (the foreperson) was impeached. The supervisor testified that she had not intended to influence the juror or harm the defendant when she made the remark, and, moreover, that she had not expected it to be repeated. The mother likewise testified that she had had no improper motive in repeating the remark. Moreover, there was sufficient evidence to support a “guilty” verdict.

Nevertheless, in the case sub judice, as distinguished from the fact situation in Clark, the making of the remark was, in the circumstances, gratuitous and could easily have been avoided; the remark itself did express an opinion on the merits of the case — an opinion that reflected adversely on the defendant; and the reasonable prudent person of ordinary experience in life would or should have known that such a remark, impliedly if not explicitly critical of the foreperson’s rumored stance, would, when made to or in the presence of that juror’s mother, likely be passed on by the mother to her daughter, the juror. This is not to excuse the mother for repeating the remark to her daughter; it is merely to observe that it was in accord with what experience teaches regarding human nature that she would do so. Moreover, the very language in which the remark was couched was itself inherently prejudicial. To “hold out” suggests stubborn or unreasonable persistence; “child-molester” reeks with unsavory implications.

We are not persuaded that the State has carried its burden of establishing that the contact was harmless. The fact remains that, despite a sufficient quantum of evidence to authorize a conviction, the foreperson did “hold out” against a conviction for some time before ultimately changing her vote. There is nothing more threatening to the integrity of our legal system than the possibility that the person or persons — whether judge or jury — charged with the responsibility for finding a defendant guilty or not guilty may be corrupted by the intrusion of interested outsiders into the sanctity of the factfinder’s deliberations. It matters not whether the incentive be money, influence, or some other tangible or intangible entity. Jurors, like Caesar’s wife, must avoid the very appearance of impropriety. Although we cannot say definitively that impropriety did occur in the instant case, the State has failed to carry its burden of persuasion sufficiently to establish that it did not. See Jones v. State, 258 Ga. 96 (366 SE2d 144) (1988). We therefore reverse the judgment below so that a new trial may be held. “ ‘The rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected.’ [Cit.]” Ware v. State, 128 Ga. App. 407, 412 (196 SE2d 896) (1973).

Decided July 5, 1988

Rehearing denied July 26, 1988

Gerald P. Word, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

Judgment reversed.

Carley and Sognier, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    76925.
    In the Interest of C. C. B. et al.
    (372 SE2d 6)
   Deen, Presiding Judge.

This court granted a discretionary appeal to review an order of the Juvenile Court of Lowndes County which placed five children in the temporary custody of the Department of Family and Children’s Services for six months.

1. Appellant urges as error the trial court’s failure to appoint counsel to represent her in the court below because she is indigent. An examination of the record reveals that the “Summons and Process” served upon her advised her of her right to counsel and that a lawyer would be appointed to represent her if she was financially unable to hire a lawyer. Although she filed an affidavit in this court claiming that she was indigent at the time of the termination hearing, she did not make a request in the court below that counsel be appointed to represent her. She may not raise the issue for the first time on appeal. Franklin v. State, 184 Ga. App. 396 (361 SE2d 700) (1987).

2. Appellant contends that the trial court erred in failing to make a transcribable record of the hearing. She maintains that while the proceedings were recorded, the recording was later found to be untranscribable. While the record made of the hearing could not be transcribed, she has made no showing that she attempted to reconstruct a transcript in accordance with the provisions of OCGA § 5-6-41 (g) and (i). This enumeration is therefore without merit.

3. In the absence of a transcript we must assume that the trial court’s findings were supported by the evidence presented at the hearing. Baugh v. Robinson, 179 Ga. App. 571 (346 SE2d 918) (1986). See also Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16) (1981).

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided July 7, 1988

Rehearing denied July 26, 1988

Joseph Jones, John L. Cromartie, Jr., Vicky O. Kimbrell, for appellant.

Daniel M. Mitchell, Jr., Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.


author: Pope, Judge. Beasley, Judge, Benham, Judge,

text:
    75893.
    THE STATE v. OLIVER.
    (372 SE2d 256)
   Pope, Judge.

Defendant Berthine Oliver was charged with three counts of child molestation in regard to the two young children for whom she was employed as a babysitter. The case was first called for trial on March 25, 1987. After the jury was chosen but before the jurors had been sworn, defendant challenged the selection of the jury, alleging the prosecutor had exercised his strikes against prospective black jurors in a racially discriminatory manner in violation of the standard set forth in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). In response to said challenge, the trial court dismissed the jury and the trial was rescheduled. The trial of the case was recommenced on May 20, 1987. Over a two-day period, the state called eleven witnesses, including one of the victims who was four years old at the time of the alleged incident and six years old at the time of trial. The court conducted a hearing outside the presence of the jury and determined the victim was competent to testify.

The eleventh and final witness for the prosecution was a clinical psychologist who had examined the victim and was called as an expert witness. During the direct examination of the expert witness the prosecutor asked the witness what she looks for in counseling sessions with a child to validate whether or not alleged abuse has occurred. In response, the witness commenced a lengthy discussion of how she attempts to assess the credibility of a child. Defendant’s attorney objected to the testimony concerning credibility and moved for mistrial. The jury was excused and a lengthy discussion was conducted on the record between the judge and the attorneys concerning the admissibility of the expert’s testimony about the victim’s credibility. The prosecutor argued he was simply trying to establish that credibility was one of the factors considered by the expert in arriving at her opinion that the child had been molested. The court properly instructed, “[S]he can tell what the child said, what conclusions she arrived at from that, but she ought not to comment on anything as far as the credibility is concerned.” The trial judge repeatedly instructed the prosecutor that the expert could not comment upon the victim’s credibility. When the jury returned, shortly after recommencing his direct examination of the expert witness, the prosecutor asked: “[I]n your opinion, based on those personal sessions with [the victim], can [she] distinguish between telling the truth and telling a lie?” The expert answered, “Yes, I believe she can.” Defendant moved for mistrial and the judge granted defendant’s motion.

Defendant then filed a plea in bar arguing the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution precludes her from being retried for the charged offenses. After a hearing on the plea of double jeopardy, the court found it was the prosecutor’s intention to cause a mistrial by asking the fatal question in violation of the specific instructions of the court. The court also found evidence of prosecutorial overreaching and harassment. Accordingly, the court granted defendant’s plea of former jeopardy. The state appeals.

1. We first address the state’s third enumeration of error which argues the trial court applied the wrong standard for determining whether double jeopardy would bar retrial of defendant’s case. The United States Supreme Court has articulated a clear and unambiguous standard for barring retrial of a criminal case where the defendant was successful in moving for mistrial. “[T]he circumstances under which ... a defendant [who successfully moves for mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (Emphasis supplied.) Oregon v. Kennedy, 456 U. S. 667, 679 (102 SC 2083, 72 LE2d 416) (1982). Prosecutorial misconduct amounting to harassment or overreaching, even if sufficient to justify a grant of mistrial, is nevertheless insufficient to bar retrial “absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 676. Accord Fugitt v. State, 253 Ga. 311 (319 SE2d 829) (1984); State v. Whitehead, 184 Ga. App. 162 (361 SE2d 41) (1987); Hampton v. State, 179 Ga. App. 14 (345 SE2d 117) (1986).

In support of the trial court’s order, defendant argues the Georgia standard for barring retrial is more protective than the minimum standard imposed by the United States Supreme Court in Kennedy. We find no reason for holding the Georgia standard to be more protective than that provided by federal law. The Fifth Amendment to the United States Constitution states: “No person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb. . . .” The Georgia Constitution states: “No person shall be put in jeopardy of life or liberty more than once for the same offense except ... in case of mistrial.” Ga. Const, of 1983, Art. I, Sec. I, Par. XVIII. If anything, the Georgia Constitution is less protective than the Fifth Amendment, for it recognizes an exception to the bar against double jeopardy when the first trial ends in mistrial. See Benford v. State, 164 Ga. App. 733 (2) (298 SE2d 39) (1982) (where this court concluded the federal constitution provides a broader former jeopardy defense than state statutory law, OCGA § 16-1-8).

Defendant cites to Morris v. State, 180 Ga. App. 896 (350 SE2d 851) (1986) for support of her argument that mere prosecutorial overreaching is still sufficient under Georgia law to bar retrial. However, the language relied upon by defendant was quoted in Morris from Studyvent v. State, 153 Ga. App. 161 (264 SE2d 695) (1980), a Georgia case predating the Kennedy decision by the United States Supreme Court. Even the Studyvent opinion involved the application of federal constitutional principles and not those of our state constitution. Hampton v. State, 179 Ga. App. 14 n. 1 (345 SE2d 117) (1986). Moreover, the Studyvent opinion “emphasized the importance of determining whether or not there has been intentional misconduct on the part of the prosecution, and to that extent it previsioned Oregon v. Kennedy, [supra].” Benford v. State, supra at 734. The issue presented on appeal in Morris was whether the prosecutor had deliberately “prompted” defendant to move for mistrial. Thus, all cases decided in Georgia since the ruling of the United States Supreme Court in Kennedy have applied the “intent to provoke a mistrial” standard set forth in Kennedy. See, e.g., Fugitt v. State, supra; State v. Whitehead, supra; Wicker v. State, 181 Ga. App. 612 (353 SE2d 40) (1987); Hampton v. State, supra. We reject defendant’s argument that mere overreaching or harassment by the prosecutor, without a finding the prosecutorial misconduct was intended to subvert the protections of the Double Jeopardy Clause, would bar retrial of defendant’s case pursuant to Georgia law.

The trial court in this case based its grant of the motion to bar retrial partially upon a finding of prosecutorial overreaching and harassment. This conclusion was based on the earlier finding of impermissible use of peremptory strikes and upon a finding the prosecutor had attempted to influence the defendant’s husband to convince the defendant to plead guilty. These findings alone would not support the grant of defendant’s plea of double jeopardy according to the rule set forth in Kennedy. However, the court’s order does include a finding that the prosecutor intended to cause a mistrial by asking the fatal question. The crucial inquiry on appeal, then, is whether this finding is supported by the record.

2. The state’s first two enumerations of error argue the court improperly found the prosecutor intended to cause a mistrial. First, the state argues the question and answer which prompted the defendant’s objection were insufficient to justify a mistrial. With this argument, we disagree.

The state argues the jury was entitled to hear testimony concerning the competency of the minor witness to testify. “The competency of a witness shall be decided by the court.” OCGA § 24-9-7 (a). In this case, the court held a competency hearing outside the presence of the jury and ruled the minor witness was competent. No objection was made by defendant to that ruling. We agree with the state that the jury also had a right to hear evidence concerning the child’s competency to testify, for it is ultimately the jury which must decide what credit to place on that testimony. See Frasier v. State, 143 Ga. 322 (5) (85 SE 124) (1915); Young v. State, 122 Ga. 725 (1) (50 SE 996) (1905). However, any evidence concerning the child’s understanding of the oath, intellectual maturity or any other factor affecting her capacity to testify is to be developed from the examination of the child herself. See Schamroth v. State, 84 Ga. App. 580 (1b) (66 SE2d 413) (1951); Webb v. State, 7 Ga. App. 35 (1) (66 SE 27) (1909). The record shows the prosecutor was allowed to present such evidence by questioning the minor witness in the presence of the jury concerning her knowledge of the difference between the truth and a lie. In no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the jurors. Allison v. State, 256 Ga. 851 (5) (353 SE2d 805) (1987). Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim’s truthfulness. See United States v. Azure, 801 F2d 336 (II) (8th Cir. 1986); United States v. Binder, 769 F2d 595 (4) (9th Cir. 1985); State v. Jackson, 721 P2d 232 (Kan. 1986). Accord State v. Butler, 256 Ga. 448, 450 n. 4 (349 SE2d 684) (1986). An expert witness may testify generally about the ability of children of a certain age to distinguish truth from falsity. The witness may also express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story. However, an expert witness may not put his or her stamp of believability on the victim’s story. Azure, supra. The lower court properly granted mistrial in this case.

3. Although the fatal question was improper and provided ground for declaring a mistrial, we find no evidence to support the trial court’s conclusion that the prosecutor intended to cause a mistrial.

The intent of the prosecutor in asking an improper question of a witness is to be inferred from the objective facts and circumstances of the case. Oregon v. Kennedy, supra. The rationale or justification given by the state for the objectionable testimony is relevant to a determination of whether prosecutorial conduct was deliberately intended to cause a mistrial. See State v. Maddox, 185 Ga. App. 674 (365 SE2d 516) (1988). In response to each objection by the defendant to questions concerning the victim’s credibility, the prosecutor vigorously argued the questions were not objectionable. First, he argued he was trying to establish that credibility was one of the factors considered by the expert in arriving at her opinions concerning the victim. At the hearing on defendant’s motion for mistrial and again at the hearing of defendant’s motion to bar retrial, the prosecutor steadfastly maintained the expert’s testimony was admissible to establish the victim’s competency to testify and was not presented to bolster credibility. Such testimony was not admissible, as discussed in Division 2 of this opinion. Although the prosecutor was mistaken or confused as to the proper scope of expert testimony, the record shows the prosecutor’s mistakes were made in good faith and reveals the state’s intention was not to provoke mistrial. See State v. Whitehead, supra. It is true the prosecutor in this case violated the trial court’s instruction not to question the expert concerning the victim’s credibility. However, in Benford v. State, supra, we held retrial for a third time was not barred by judicial misconduct even though the trial court failed at the second trial to follow the clear holding of this court on the appeal of the first trial and, in effect, repeated the same fatal error which had resulted in the reversal of the first conviction. Likewise, failure of the prosecutor in this case to follow the instruction of the trial court to avoid questions concerning a witness’ credibility does not bar retrial because it appears from the record the error was made in a good faith, though mistaken, distinction between evidence concerning credibility and evidence concerning competency to testify. Intent to ask the fatal question should not be confused with intent to violate the defendant’s constitutional rights. The prosecutor’s intent to ask the fatal question “does not establish that the state intended to subvert the protections afforded by the double jeopardy clause.” State v. Whitehead, supra at 164.

The prosecutor in this case had called all his witnesses and there is no reason to believe the evidence was anything less than the state had expected it to be. “Defendant’s protestations to the contrary, the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” Hampton v. State, supra at 15. Therefore, we find no evidence to support the trial court’s finding that the conduct of the prosecutor revealed an intent to subvert the protections afforded by the Double Jeopardy Clause.

I concur with the dissenting opinion that prosecutorial misconduct should not be condoned or encouraged. But our holding in this case in no way ties the hands of the trial judge to respond to prosecutorial misconduct. The award of mistrial is the appropriate remedy for curing the prejudice against the defendant created by the prosecutor’s error and the appropriate sanction to discourage misconduct by the prosecuting attorney. The bar of double jeopardy is such an extreme sanction against the interest of the state in prosecuting one who has been indicted for a crime that it should be applied strictly and only when the circumstances clearly show the prosecutor intended “to subvert the protections afforded by the Double Jeopardy Clause.” Oregon v. Kennedy, supra at 676.

4. The order granting defendant’s plea in bar shows the order was based in part upon (1) a finding the prosecutor had improperly communicated with defendant’s husband in an attempt to convince the defendant to plead guilty; (2) the earlier finding of impermissible use of peremptory strikes at the first voir dire of the jury; and (3) testimony of one of the jurors that, at the time mistrial was declared, she would have voted for acquittal. Even if the prosecutor acted improperly in communicating with defendant’s husband when he arrived at the courthouse in response to his subpoena to trial, which we do not here address, such communications would not meet the test of Kennedy to show intent to subvert the protections afforded by the Double Jeopardy Clause. The impermissible use of peremptory strikes at the first call of the case was remedied by the grant of defendant’s challenge to the jury pursuant to Batson v. Kentucky. It cannot be said that the disqualification of the first jury subjected defendant to former jeopardy since the earlier jury was never impaneled. Finally, it was improper for the judge to consider the testimony of the juror as to what her verdict would have been at the time mistrial was declared for the jury had not yet heard the remainder of the testimony of the state’s expert witness nor any of the evidence which might have been presented by the defendant. This testimony and the additional findings of the trial court do not support the order barring retrial of defendant’s case.

5. The earlier order granting defendant’s challenge to the jury pursuant to Batson v. Kentucky is not properly before the court on this appeal of the order barring retrial. Therefore, we need not address the state’s final enumeration of error.

Judgment reversed.

Deen, P. J., McMurray, P. J., and Banke, P. J., concur. Beasley, J., concurs specially. Carley, J., concurs in judgment only. Birdsong, C. J., Sognier and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur with the majority opinion except as follows.

1. The witness had been recognized by the court as qualified to give her opinion “in the field of clinical psychology as an expert.” She had testified that in such capacity, she counseled with the child in four counseling sessions after the child had been referred to her under the district attorney’s victim assistance program. Since she was called to give her opinion that the child had been abused, the State proceeded to lay the foundation for such an opinion. Part of the basis upon which she formed that opinion was what the child said to her in the counseling sessions, as well as her observation of the child and the results of psychological tests given. She described in general the capacity of young children to distinguish fact from fancy and about their perception capacity.

Defendant stopped the proceeding to state that the witness should not be permitted to testify that the witness was credible, as that was a question reserved to the jury. There followed a debate in which the court ruled that the witness could not testify “as to the credibility of the child.” Upon request by defendant, the jury was instructed that a witness could not testify as to the victim’s credibility and that it was the jury’s province to determine credibility.

Questioning resumed, and the witness testified about her counseling sessions with the child. There was no objection to the question, “Now, in your professional opinion, was the number and lengths of the times that you counseled Ashley sufficient for you to form an expert opinion in which you had confidence in its reliability?”; nor in the answer, “Yes, it was.” Then the State asked: “And in your opinion, based on those personal sessions with Ashley, can Ashley distinguish between telling the truth and telling a lie?” The response was: “Yes, I believe she can.” The motion for mistrial followed.

In argument supporting the motion at that time, defendant’s position was that this was prohibited testimony about credibility. The State’s position was that it was not about credibility, which it conceded was a question for the jury, but about the child’s ability to recognize or discriminate or perceive between truth and lie. The State also conceded that competency to testify was initially a question to be resolved by the court before a possibly incompetent witness would be permitted to testify. But it insisted that the expert witness within whose area of expertise this subject fell, could acquaint the jury with her opinion that the child was capable of distinguishing between truth and lie.

The court, however, saw the evidence as invading the jury’s province on the question of the child’s credibility as a witness and granted the mistrial. This was explicitly repeated in the written order on the mistrial.

The difference between the two subjects, although the edges are not sharp, is great enough for the lack of prosecutorial misconduct to be shown as a matter of law. The State had an arguable justification for insisting on the difference and asking the objected-to question as being on the subject of competency and not on the subject of credibility. Competency may be a jury question, Goodson v. State, 162 Ga. 178 (132 SE 899) (1926) and Scott v. State, 57 Ga. App. 489 (6) (195 SE 923) (1938), and here that subject related to the expert’s analysis of the child’s stage of understanding, as a foundation for her ultimate opinion on child abuse.

Even assuming that the State was in error insofar as admissibility of the answer to this particular question is concerned, a proposition I am not prepared to accept, it cannot be said that the State deliberately created error by intentionally injecting inadmissible evidence such as would cause mistrial. Defendant himself found it necessary to rely on cases from other jurisdictions to support his position, the law on the matter not being clear. That is, there is no case in Georgia holding that when an expert who has professionally counseled with a young child who allegedly has undergone sexual abuse, that expert cannot testify that the particular child is or is not developmentally capable of distinguishing between truth and falsehood, or of comprehending the difference.

Thus, even if a mistrial was called for, what prompted it did not breach the standard by which a claim of Fifth Amendment violation is measured, as ordained in Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982).

2. This brings me to the second point. The defendant relied in the court below solely on the Fifth Amendment’s proscription against double jeopardy. The plea of former jeopardy is based expressly on this federal constitutional ground, insofar as the alleged improper question is concerned, and the brief below in support of it expands on the Fifth Amendment, Oregon v. Kennedy, and applications thereof in state cases. The court ruled on the basis of federal constitutional law, citing Oregon and “The Double Jeopardy Clause” in its conclusions of law.

Thus, the state constitutional ground was not raised below and should not be addressed here for the first time. See State v. Whitehead, 184 Ga. App. 162 (361 SE2d 41) (1987) [physical precedent]. See also Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986); State v. Camp, 175 Ga. App. 591 (1) (333 SE2d 896) (1985).

3. Even if a state constitutional basis were properly before us, I could not agree with the categorical statement that the Georgia Constitution’s double jeopardy provision is less protective than the Fifth Amendment. Just because the words are not identical does not mean that they are not construed the same by the two governing supreme courts respectively, or that the state supreme court has not or cannot construe the State provision more broadly in this regard. See Linde, “E Pluribus — Constitutional Theory & State Courts,” 18 Ga. L. Rev. 165, 181, discussing text methodology (1984); “Developments in the Law: The Interpretation of State Constitutional Rights,” 95 Harv. L. Rev. 1324, 1356 (1982); Williams, “Methodology Problems in Enforcing State Constitutional Rights,” 3 Ga. State Univ. L. Rev. 143 (1986-87). Georgia statutory law, of course, provides more expansive double jeopardy rights. OCGA §§ 16-1-6; 16-1-7; 16-1-8. State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974); Tabb v. State, 250 Ga. 317, 318 fn. 1 (297 SE2d 227) (1982).

The Supreme Court of Georgia is the final construer of our state constitution whereas the United States Supreme Court is the final interpreter of the federal constitution. See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983); Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 80 LE2d 721) (1984); Lee v. State, supra.

Benham, Judge,

dissenting.

There are several points in the majority opinion with which I am in full agreement: that the grant of a mistrial was proper; that the Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), issue is not properly before this court; that the standard to be applied by a trial court in deciding whether a retrial is barred after a mistrial is the standard enunciated in Oregon v. Kennedy, 456 U. S. 667, 679 (102 SC 2083, 72 LE2d 416) (1982) (“the conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial”); and that the prosecutorial overreaching and harassment found by the trial court (impermissible use of peremptory strikes and efforts to persuade appellee’s husband to convince her to plead guilty) are not alone sufficient to support a plea of double jeopardy. I cannot agree, however, that all of the prosecutor’s misconduct should not be considered on the issue of double jeopardy, or that there was no evidence of intent to provoke a mistrial.

It is appropriate to begin this discussion with a consideration of the proper role of a prosecuting attorney. “Judges have previously outlined the spirit of [a prosecuting attorney’s] duty by stating: ‘While the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of the charges against them.’ [Cit.] ‘While a [prosecuting attorney] is necessarily a partisan, yet it is his paramount duty “to subserve public justice” [Cit.], and not merely to convict each defendant charged with a violation of the laws of this State.’ [Cits.]” Brown v. State, 118 Ga. App. 617, 619 (165 SE2d 185) (1968). We cannot tolerate a prosecutorial attitude of “win at any cost,” an attitude encouraged by the knowledge that the worst result likely will be a mistrial followed by another opportunity to employ the same reckless abandon which led to the mistrial.

The logical consequence of such purposeful misbehavior is that the prosecutor not be permitted another chance to prosecute that particular case, but with so subjective a standard as the intent of the prosecuting attorney to provoke a mistrial, such a result is difficult to reach: it cannot reasonably be expected that a prosecuting attorney will admit that the specific intent of particular conduct was to cause a mistrial. Indeed, in the present case, the prosecuting attorney expressly disclaimed such intent. Nonetheless, the trial court found against that prosecuting attorney on several other issues concerning which he denied impropriety, and I believe there was ample evidence to permit the trial court to reach a finding contrary to the prosecuting attorney’s protestations on the issue of intent as well.

I recognize that intent is to be inferred from objective facts and circumstances (Oregon v. Kennedy, supra), and agree with the majority that the rationale or justification advanced by the prosecuting attorney is relevant to the issue of intent. That justification cannot, however, be considered to be controlling. We must not tie the hands of our trial judges by restricting unduly their consideration of all the prosecuting attorney’s actions in determining whether it can be inferred that the conduct of the prosecuting attorney was intended to provoke a mistrial; we must permit them to consider on that issue the totality of the circumstances involving the prosecution of the case and the prosecuting attorney’s conduct with relation thereto.

Such a consideration in this case warrants the inference that the prosecuting attorney’s intent was to employ tactics which, if permitted, would tip the scales of justice inexorably toward conviction and, if not permitted, would provoke a meritorious motion for mistrial by the defendant, leaving the way clear for a retrial.

The majority’s analysis, that since there was no conclusive evidence that the State was losing, there could be no intent to cause a mistrial, places an unbearable burden on the trial court and shifts attention away from what should be the primary focus in an inquiry such as this, the conduct of the trial by the prosecuting attorney. The burden that would be placed on a trial court attempting to employ the analysis used by the majority would be to weigh the evidence presented and decide which side was going to win, or to attempt to emulate the prosecuting attorney’s thought process and decide whether the prosecuting attorney thought the jury would convict or acquit. Such an effort is not feasible and should not be required of our trial judges.

The focus, instead, should be on the course of conduct in which the prosecuting attorney has engaged. Where, as here, the prosecuting attorney has persistently employed objectionable and illegal tactics, such as the racially motivated use of peremptory strikes, efforts to undermine the defense by attempting to influence the defendant’s husband, and a flagrant disregard of the trial court’s evidentiary ruling, it may fairly be inferred that the conduct was intended to provoke a mistrial.

The majority’s approach to the present case, finding no motive for causing a mistrial and accepting the prosecuting attorney’s self-serving assertion that he did not intend to cause a mistrial, ignores the fact that the trial judge was present for the trial and for the hearing on appellee’s plea of double jeopardy, and had an opportunity to see and hear the conduct of the trial. Worse, perhaps, is the undermining of the trial judge’s authority by the majority’s finding that the prosecuting attorney’s blatant disregard of a ruling because he disagreed with it was done in good faith.

I believe it is our duty to provide the trial judges of this State with the means of curbing prosecutorial misconduct. That will be done by affirming the decision of the trial court in this case, a decision set out in an order reflecting careful consideration of the totality of the circumstances and a due regard for the right of defendants in criminal cases to receive a fair trial. To reverse this decision sends a clear message to the prosecuting attorneys of this State that they are free to employ Machiavellian tactics, and to the trial courts of this State that their hands are tied.

Because I cannot participate in the sending of such a dangerous message, I must dissent from the judgment of reversal in this case.

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

Decided July 11, 1988

Rehearing denied July 27, 1988

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellant.

Kenneth D. Kondritzer, for appellee.

       Although the order granting defendant’s challenge to the jury employed the term “mistrial,” the order was not actually a grant of mistrial since the jury had not yet been impaneled and sworn. See Hughey v. State, 180 Ga. App. 375 (2) (348 SE2d 901) (1986).

        Eberhardt v. State, 257 Ga. 420 (4) (359 SE2d 908) (1987), in which a psychiatrist was permitted to testify that the alleged victim was capable of “knowing truth from nontruth,” is distinguishable. First, in that case there was evidence the witness was suffering from mental illness and, therefore, whether this illness affected her competency to testify was not within the juror’s realm of knowledge. Secondly, the question concerning the witness’ ability to distinguish fact from fiction had been asked and answered earlier without objection, so that the subsequent questioning on the subject was harmless. In the case at hand, defendant made a timely objection to the questioning of the expert witness on the victim’s credibility.

       “The right question is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state’s law may prove to be more protective than federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised.” Id. at 179.


author: Sognier, Judge. Carley, Judge,

text:
    76075, 76076. 76077. 76211. 76212.
    CITY OF FAIRBURN v. COOK; and vice versa. COOK v. MORELAND et al. ATLANTA & WEST POINT RAILROAD COMPANY v. COOK et al. COOK v. ATLANTA & WEST POINT RAILROAD COMPANY et al.
    (372 SE2d 245)
   Sognier, Judge.

James Cook brought suit against the City of Fairburn (the “City”), Atlanta and West Point Railroad Company (the “Railroad”), and numerous other defendants seeking damages stemming from a vehicular accident that left him a quadriplegic. The trial court granted summary judgment in favor of Thomas Moreland and Archie Burnham, two of the individual defendants, and with the exception of the City and the Railroad, the remaining parties were either voluntarily dismissed from the suit or granted summary judgment, and are no longer involved in this case. Upon trial of the suit, the jury returned a verdict in favor of Cook for $2.5 million, the sum to be shared equally between the City and the Railroad. The five appeals and cross-appeals from this case are consolidated herein.

Appellee and his co-worker, Keith Smith, were heading home in Smith’s truck along State Route 92 (also known as Campbellton Road), having completed delivery of a lawn mower, when Smith drove the truck under a bridge owned by the Railroad into the intersection of State Route 92 and East Broad Street in the City. A “signal ahead” sign was situated before the bridge; a center traffic light suspended over the intersection by wire and corner signal lights mounted on posts controlled the flow of traffic through the intersection. Smith testified he did not see the “signal ahead” sign and did not see any of the traffic lights at the intersection itself. It is uncontroverted that the truck driven by Smith entered the intersection against the controlling red light, whereupon the truck was hit and appellee received the injury that left him a quadriplegic. The accident occurred on June 19, 1978; appellee was hospitalized until September 15, 1978.

76211, 76212. Atlanta & West Point Railroad Company v. Cook; and vice versa.

The Railroad contends the trial court erred by denying its motion for judgment notwithstanding the verdict, in that there was no issue for jury determination in regard to the two bases of recovery asserted by appellee against it, negligence and nuisance. We agree and reverse.

1. Appellee’s negligence theory of recovery was premised on a breach of the Railroad’s duty of ordinary care owed appellee as a member of the public by the Railroad’s creation and maintenance of a dangerous condition, i.e., the Railroad’s bridge. Appellee asserted that the location, design and configuration of the Railroad’s bridge obstructed the driving public’s view of the traffic signals, thereby creating a dangerous condition.

The evidence adduced at trial showed that the Railroad constructed the bridge in 1917, replacing a grade crossing on Campbellton Road which led into the pre-existing intersection. The height and width of the underpass was sufficient to allow the unimpeded flow of traffic. The traffic signals controlling the flow of traffic into the intersection were first introduced in the 1950’s. The evidence was uncontroverted that the Railroad had nothing whatsoever to do with the installation or positioning of the traffic signals.

The Railroad correctly points out that the installation and maintenance of traffic control devices is a statutorily regulated matter, see OCGA § 32-6-50, long acknowledged as a governmental function, see Englander v. City of East Point, 135 Ga. App. 487 (218 SE2d 161) (1975), and that the Railroad is statutorily prohibited from installing traffic control devices on its own. See OCGA §§ 40-6-25 (a); 32-6-51 (a). Nothing in OCGA § 32-6-197, cited by appellee, places any duty on a railroad regarding the installation or maintenance of traffic control devices in the area around a railroad underpass. That statute merely references a railroad’s duty to maintain the underpass itself, and exempts the railroad from maintaining even the “lighting, drainage, and pavement of the public roads thereunder. . . .” OCGA § 32-6-197 (c).

The pleadings and evidence at trial established that no dangerous condition was created or maintained by the mere existence of the bridge itself. Rather, the dangerous condition asserted by appellee was created by the installation and maintenance of traffic signals in positions where view of the lights was obscured by the bridge’s preexisting structure. Since the duty to install and maintain traffic' control devices is placed exclusively in the government, we cannot agree with appellee’s argument that the Railroad can nevertheless be held liable for obscuring a public road, i.e., the traffic signals, when the Railroad was statutorily prohibited from exercising any control over those signals in order to rectify the dangerous condition and when evidence establishes that the structure of the bridge itself created no danger to appellee. The cases appellee cites for the proposition that a private property owner can be held liable for obscuring a public road are thus factually inapposite from the case sub judice in that the items obscuring the plaintiffs’ view of the public road were improperly positioned. Reliable Transfer Co. v. May, 70 Ga. App. 613 (29 SE2d 187) (1944) (truck illegally parked obscured the view of intersection); McKinney & Co. v. Lawson, 180 Ga. App. 550 (349 SE2d 763) (1986) (overgrown tree obstructed public pathway); Pollard v. Cartwright, 60 Ga. App. 630 (4 SE2d 693) (1939) and Callaway v. Pickard, 68 Ga. App. 637, 642-643 (2) (23 SE2d 564) (1942) (obscured view of on-coming trains stated as explanation of why plaintiffs could not see the train, and as descriptive of the locality and environment of the crossing, rather than as allegations of negligence).

The standards for granting a motion for judgment n.o.v. are the same as those governing the direction of a verdict. The motion may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Johnston v. Bill Fancher & Assoc., 179 Ga. App. 67, 68 (345 SE2d 144) (1986). Because the Railroad breached no duty owed appellee in that it neither created nor maintained the dangerous condition that gave rise to appellee’s injury, a verdict for the Railroad on the issue of negligence was demanded and the trial court erred by denying the Railroad’s motion for judgment n.o.v. Id. at 69.

2. Appellee’s remaining claim against the Railroad was based on the premise that the 1917 bridge was constructed in the public right-of-way and thus, as an unauthorized structure under OCGA §§ 32-6-1 and 32-6-51 (b), the bridge was a public nuisance. See Smith v. Hiawassee Hardware Co., 167 Ga. App. 70 (305 SE2d 805) (1983). Resolution of this issue, therefore, turns on the extent of the public right-of-way acquired by the public from the Railroad.

Appellee asserts that the public right-of-way over the grade level crossing of the Railroad’s train tracks on Campbellton Road (State Route 92) extended to the heavens prior to the Railroad’s construction of its bridge in 1917, and thus the bridge, as erected and maintained, occupies physical space “used” by the public so as to place it in the public right-of-way. The evidence reflects that the Campbellton Road crossing existed at least since the 1870’s (as indicated by deeds with the Railroad as grantor referencing the road in property descriptions) and it is essentially uncontroverted that due to public usage of the crossing, a public right-of-way had arisen either by dedication or by prescription by that time.

However, regardless whether the right-of-way was acquired by dedication or by prescription, we cannot agree with appellee that the right-of-way included the air space now occupied by the Railroad’s bridge. As to dedication, the evidence established that there was no express dedication to public use and “[i]n cases of implied dedication, there is no dedication implied beyond the use. [Cits.] When dedication results from mere use and acquiescence, it is not to be inferred that the donor parted with more than the use necessitates. [Cit.]” R. G. Foster & Co. v. Fountain, 216 Ga. 113, 119 (114 SE2d 863) (1960). Likewise, as to prescriptive easements, “ ‘[t]he true rule as to prescription is, that the right is measured by actual user, and not by capacity for more extended use. [Cits.]. . .’ ” Goble v. Louisville &c. R. Co., 187 Ga. 243, 253 (200 SE 259) (1938). See Kerlin v. Southern Bell Tel. &c. Co., 191 Ga. 663, 666-670 (13 SE2d 790) (1941) and Humphries v. Ga. Power Co., 224 Ga. 128, 129-130 (3) (160 SE2d 351) (1968) (addition of more telephone lines or power equipment allowed where it appeared the addition would not occupy general area beyond the outer limits of space previously occupied or territorially beyond easement already acquired). We are not persuaded by appellee’s argument that the physical space now occupied by the bridge was necessary to the public’s “use” of the right-of-way. Although the space “used” by the public included that space necessary to allow safe passage over or under the tracks, the evidence is uncontroverted that the space provided by the bridge for the public right-of-way adequately allows for the safe and unimpeded flow of traffic thereunder. As pointed out above, the traffic lights, insofar as their installation in juxtaposition with the bridge is concerned, are not part of the bridge’s structure nor in any degree the responsibility of the Railroad.

Therefore, we hold that the Railroad’s bridge did not infringe on the public right-of-way and as a matter of law, a verdict was demanded in favor of the Railroad on appellee’s claim of public nuisance. See generally Johnston, supra.

3. Appellee’s cross-appeal was made contingent upon a determination by this court that a retrial of the lawsuit was required insofar as the Railroad was concerned. Since our reversal of the judgment in Case No. 76211 eliminates the need for a retrial, it is thus not necessary to address appellee’s four enumerations asserting error in the giving of two jury instructions and the admission of a 1970 license agreement between the Railroad and the City as well as evidence regarding appellee’s non-use of seat belts. (But, as to the latter enumeration, see Division 10, infra.) This appeal is accordingly dismissed.

76075, 76076. City of Fairburn v. Cook; and vice-versa.

4. “[Remaining joint tortfeasors are not entitled to a new trial where one of them is adjudged not liable on the merits by a motion for judgment notwithstanding the verdict.” Ammons v. Horton, 128 Ga. App. 273, 276 (196 SE2d 318) (1973). Thus, unless the City establishes in its enumerations of error that it is entitled on other grounds to a new trial, a new trial will not be granted simply because the denial of its co-defendant’s motion for judgment n.o.v. was reversed by this court. See Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793-794 (2) (298 SE2d 533) (1982). However, since this matter immediately calls into issue the jury verdict, we will address first the last enumeration of the City, in which error was asserted as a result of the trial court’s entry of judgment on an illegally apportioned verdict.

At the close of trial, the jury returned a verdict that provided as follows: “We, the jury, find for the Plaintiff, James T. Cook, against Defendants, Atlanta and West [sic] Railroad Company and the City of Fairburn, two million five hundred thousand [dollars] in compensatory damages to share equally.” It appears that the words “to share equally” were added by the jury to the verdict form prepared by the trial court. The trial court subsequently determined that the added language was a formal defect rather than a substantive error and entered judgment against the City and the Railroad for the full amount of the verdict.

The City asserts in its brief that by adding to the verdict form the words “to share equally,” the jury plainly manifested an intent to apportion one-half of the damages against the City and the other one-half against the Railroad. We agree with the City that this was the plain intent of the jury, but we do not agree with the City that the verdict so returned was rendered illegal by the apportionment. In Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), in which an exhaustive discussion of the law regarding joint tortfeasors was undertaken, the court noted that “nuisance cases proceed under a different rule, which is that joint participants in the creation of a nuisance are not jointly and severally liable for the full total of plaintiff’s damages, but only for their individual parts.” Id. at 328. On appeal, the Supreme Court affirmed and expressly adopted the opinion of the Court of Appeals. Mitchell v. Gilson, 233 Ga. 453, 454 (211 SE2d 744) (1975). Appellee’s suit against the City proceeded on the basis of nuisance. See Division 6, infra. Therefore, since “nuisance defendants are not joint tortfeasors in terms of several liability,” Gilson, supra at 329, the verdict returned by the jury in the case sub judice legally apportioned the City $1,250,000.00 as its part of the compensatory damages due appellee. “Where a verdict is plain and unmistakable in its legal effect, it must speak for itself .... [Cit.]” Jolly v. Jolly, 137 Ga. App. 625, 626 (224 SE2d 807) (1976). Accordingly, the trial court erred by amending the verdict as returned. See OCGA § 9-12-4.

5. In its first enumeration, the City contends the trial court erred by denying its motions for directed verdict or judgment notwithstanding the verdict on the ground that appellee failed to give the City notice of his claim within six months of the date the claim arose as required by OCGA § 36-33-5. The City received notice of appellee’s claim for the June 19, 1978 accident on February 26, 1979.

“The requirement of ante litem notice in [OCGA § 36-33-5] stating that before suit may be instituted against any municipal corporation for money damages for injury to person or property, it must be notified in writing within 6 months of the event upon which the claim is predicated for opportunity to adjust same is a statute of limitation. [Cits.] And where the person to whom the claim belongs is a person under disability as set forth in [OCGA §§ 9-3-90 and 9-3-98], the limitation period does not begin to run until such time as the disability shall have been removed. [Cits.]” City of Barnesville v. Powell, 124 Ga. App. 132-133 (1) (183 SE2d 55) (1971).

Appellee asserted that his mental incapacity following the accident excused his failure to notify the City within six months of the accident. “ ‘The test for mental incapacity is not whether one did not manage his own affairs, acquiescing in the management thereof by others, or whether one has merely managed his affairs unsuccessfully or badly. That one was not “bright” or not clear about some matters occurring during the period is not evidence of mental incompetency. (Cit.) The test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of his life. (Cit.)’ [Cits.]” Whisnant v. Coots, 176 Ga. App. 724, 725 (337 SE2d 766) (1985).

We disagree with the City that evidence indicating appellee was able to understand English and to respond to questions put to him within three weeks of his accident demanded a verdict in its favor that appellee was not so incapacitated that he could not have managed the ordinary affairs of his life. Our review of the transcript reveals ample evidence from which the jury could have concluded that, as a result of the trauma of an accident in which appellee was changed in a matter of seconds from a normal healthy 18-year-old into a permanent quadriplegic, appellee suffered such a deep state of depression that he was mentally incapable of managing his affairs for a period extending at least to the date he was released from the hospital. “ ‘On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.]’ [Cit.] ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. [Cit.] . . . The standard for granting or denying a judgment notwithstanding the verdict is the same as that for a directed verdict. [Cit.]’ [Cit.]” American Game &c. Suc. v. Knighton, 178 Ga. App. 745 (1) (344 SE2d 717) (1986). We find no error in this enumeration in the trial court’s denial of the City’s motions for directed verdict and for judgment n.o.v.

6. The City contends the trial court erred by failing to grant its motions for a directed verdict or judgment n.o.v. because the Supreme Court’s decision in Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224) (1978) controls the question of the City’s liability for creating and maintaining a nuisance adversely to appellee. In Palmerio, a collision occurred in the middle, or reversible, lane of a three lane viaduct in Savannah. The plaintiffs brought suit alleging that the failure to post proper signals to warn motorists of the reversible lane usage resulted in such a hazardous condition that it amounted to the maintenance of a nuisance. The Supreme Court affirmed the trial court’s directed verdict in favor of the city because rather than alleging that the city “had committed an act which created the dangerous condition,” the plaintiffs alleged the city had failed to act to install the traffic signal, and that because numerous statutes placed exclusive authority and jurisdiction over the road at the time of the accident in the State Highway Board, the city did not fail “to perform an act that it was under a duty to perform.” Id. at 427. (The Supreme Court noted that even at the time of the Palmerio decision, those statutes had been repealed or amended. See id. at 422-423 and accompanying footnotes.) The case at bar is thus distinguishable from Palmerio in that here it is alleged the City “committed an act which created [a] dangerous condition” when it installed the traffic signals in a manner as to be obscured by the pre-existing railroad bridge.

While the evidence is uncontroverted the City performed the actual installation, the City argues the State Department of Transportation, not it, was the entity responsible for the installation of the signals and that the City is thus legally insulated from liability because its installation of the traffic control devices was totally regulated by the DOT. We do not agree with the City that OCGA § 32-2-2 (a) (1) places exclusive responsibility for all aspects of the state highway system in the DOT. OCGA § 32-2-2 (a) (1) does list “erection and maintenance of official department signs” among the items for which the DOT is required to provide “substantial maintenance activities and operations” insofar as those portions of the state highway system lying within the corporate limits of any municipality are concerned. However, when the DOT fails to maintain those portions of the state highway system lying within a municipality’s corporate limits as required by law, a municipality can be held liable for such failure under OCGA § 32-4-93 (b) where the municipality agreed to perform the necessary maintenance. Our review of the trial transcript does not support the City’s argument that no evidence was adduced from which a jury could find that the City had assumed some responsibility for the installation and maintenance of the traffic signals: One witness testified that the corner signal, placed over 9 feet off the ground, would have been more visible and thus safer had it been installed at the minimum height of 8 feet; testimony was adduced that the City decided to position the corner signal on the sidewalk side of its pole, rather than leave it positioned on the street side of the pole where its visibility would have been enhanced, to minimize problems caused by tractor trailer trucks turning at the corner. Thus, the evidence reflects that, rather than being regulated by the DOT to the minutest detail, the City had discretion which it exercised in the installation of the traffic control devices.

“ * “A municipal corporation, like any other individual or private corporation, may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function.” ’ [Cit.] ‘While it is true that a municipal corporation is not liable for its acts of negligence in discharging a governmental function, yet a municipal corporation cannot, under the guise of performing a governmental function create a nuisance dangerous to life or health.’ [Cit.]” Rea v. Bunce, 179 Ga. App. 628, 630 (1b) (347 SE2d 676) (1986). Since there was evidence authorizing a conclusion that the City was responsible for creating and maintaining a nuisance, we find no merit in the City’s contention that it was entitled to judgment as a matter of law under Palmerio, supra, and the trial court did not err by denying the City’s motions made on this basis.

7. The City contends the trial court erred by failing to grant its motions for a directed verdict or judgment n.o.v. on the ground that there was no evidence the City had notice of the existence of a dangerous condition at the intersection. Viewing the evidence in the light most favorable to appellee, the party who secured the jury verdict, Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981), one witness testified about the minutes to a city council meeting he had attended at which a motion was made that a traffic signal at the corner of the intersection “should be installed so as to be in view from under the underpass.” Other testimony was presented from the city administrator whose job it was to manage the daily affairs of the City, the superintendent of utilities for the City who was head of the department responsible for the installation and maintenance of the traffic signals, and deposition testimony from the City’s chief of police at the time of appellee’s accident that they had long been aware of the visibility problems at the intersection in question, having personally observed that a driver approaching the intersection could not always see the traffic lights placed there, and that the lights were sometimes completely or partially blocked from view. The witnesses acknowledged the danger of an intersection where directional signals could not be seen and evidence regarding the abnormally high accident rate for a signalled intersection used primarily by local drivers was presented.

In order for a city to be held liable for maintenance of a nuisance, “the municipality must have knowledge or be chargeable with notice of the dangerous condition.” Palmerio, supra at 426 (i). Given this evidence, we cannot say as a matter of law that the City did not have knowledge or that a jury could not find the City was chargeable with notice of a dangerous condition at the intersection. “Applying the standards enunciated above to the record of this case, we find no error in the trial court’s denial of [the City’s] motions for directed verdict and judgment notwithstanding the verdict.” Nichols v. Purvis, 178 Ga. App. 826, 827 (1) (344 SE2d 692) (1986).

8. We find no error in the trial court’s giving appellee’s requests to charge nos. 18 and 24. The City contends the trial court incorrectly stated the applicable legal standards in the two charges by which the City could incur liability for creating or maintaining a nuisance. As to charge no. 24, however, the record reveals the only objection made to this charge was that it was not a complete statement of the law. Thus, “the grounds presently enumerated as error were not raised during trial and therefore may not now be raised for the first time. [Cit.]” Turner v. Taylor, 179 Ga. App. 574, 576 (4) (346 SE2d 920) (1986). See also Walker v. Mitchell, 174 Ga. App. 738, 739 (331 SE2d 82) (1985). Similarly, we note that the City’s arguments asserting error in the trial court’s refusal to charge numerous of its requests to charge, which the City alleges fully and completely set forth the law, were not raised in any enumeration of error before this court. “ ‘[T]his court has no jurisdiction to consider grounds argued in the brief which are not enumerated as error. [Cit.]’ [Cits.]” Ga. Dept. of Labor v. Sims, 164 Ga. App. 856, 857 (2) (298 SE2d 562) (1982). See also Chevrolet-Pontiac-Canada Group v. Pearson, 182 Ga. App. 796, 797 (357 SE2d 152) (1987).

The record reveals that as to charge no. 18, which provided that “anyone who creates a dangerous situation on or along a public highway, which it reasonably appears may injure users of the highway in exercise of ordinary care of their own safety, has the duty to eliminate the danger or give warnings to others of its presence,” objection was made that “[t]he charge implies that the standard, as it relates to the City, would be that of the exercise of ordinary care rather than nuisance.” Even assuming this objection amounted to the argument now made by the City that the charge impermissibly implied that a municipality could be held liable for creating a nuisance under a standard of ordinary care or mere negligence, rather than the proper standard of misfeasance in excess of mere negligence, we find no merit in the City’s argument. The reference in the charge to “ordinary care” was directed towards the “users of the highway” rather than the City and we do not believe jurors of ordinary intelligence would be misled by the charge in applying a standard of ordinary care to the City as the result of this charge. See generally Gen. Warranty Corp. &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 438 (7) (356 SE2d 83) (1987). This conclusion is further reinforced by our review of the long and detailed charge as a whole. See generally Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (351 SE2d 82) (1986).

9. The City contends reversible error resulted when the trial court charged the jury the following: “I charge you further that the six month period for presenting a claim to a municipality does not run during any period of time in which the plaintiff is mentally incapacitated. A person is mentally incapacitated when, being of sound (sic) mind, he cannot manage the ordinary affairs of his life. Physical incapacity is not sufficient. In this case, the plaintiff has the burden of proving that he was mentally incapacitated for a sufficient length of time after June 19th, 1978 to bring his notice of claim to the City of Fairburn within the six month limitation period. If you find that the plaintiff was not mentally incapacitated after June 19th, 1978 or that he was not mentally incapacitated for a sufficient length of time, then it would be your duty to find in favor of the City of Fairburn and render a verdict in its favor.”

We agree with the trial court that in view of the context of the charge, with its repeated stress on “mentally incapacitated,” the trial court’s use of “sound” instead of “unsound” mind constituted a palpable slip of the tongue which could not have misled the jury and thus does not require reversal. See generally Sanders v. Hughes, 183 Ga. App. 601, 603 (2) (359 SE2d 396) (1987).

10. The City contends the trial court erred by refusing to admit the deposition testimony of Dr. Herndon Murray, appellee’s treating physician, who stated that it would have been very unlikely for appellee to have sustained his injury had he been wearing a seat belt at the time of the accident. The trial court had earlier ruled admissible evidence regarding appellee’s non-use of the lap-style seat belt in the truck when it denied appellee’s motion in limine to exclude such evidence. (But in this regard we note the recent passage of Ga. L. 1988, p. 31 et seq.) The trial court’s ruling was thus not based on any general principle excluding all evidence regarding seat belt usage but on the evidentiary ground that no foundation had been laid to indicate Dr. Murray had any expertise in the consequences of non-usage of seat belts. The City argues, however, that Dr. Murray’s statement was admissible because appellee failed to make a foundation or competency objection to the statement at the time of the deposition.

We agree with the trial court that appellee’s counsel’s failure to object to the doctor’s testimony during deposition does not preclude the trial court from exercising its discretion sua sponte to exclude the doctor’s testimony on foundation or competency grounds. “The ques-

tion of whether a witness is qualified to give his opinion as an expert is one for the court. [Cit.] His determination will not be disturbed except that it be manifestly abused.” Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 712 (1) (225 SE2d 80) (1976). See also Rouse v. Fussell, 106 Ga. App. 259, 262 (126 SE2d 830) (1962). Although the City cites Andean Motor Co. v. Mulkey, 251 Ga. 32 (1) (302 SE2d 550) (1983), as controlling authority, we find that case distinguishable on two grounds. First, the Supreme Court in Andean Motor Co. affirmed a ruling admitting deposition testimony of an expert witness over objection that there was no showing that the witness was qualified as an expert. The Supreme Court was thereby reversing the holding in Mulkey v. Gen. Motors Corp., 164 Ga. App. 752, 753-754 (2) (299 SE2d 48) (1982) that the trial court abused its discretion by admitting such evidence. Secondly, the basis for the Supreme Court’s holding was OCGA § 9-11-32 (d) (3) (A), which provides that “[objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.” The Supreme Court stated that “[ejxtended discussion or citation of authorities is not required to demonstrate that if Mulkey had objected during the deposition to the absence of proof of the witness’ competence to testify as an expert, defense counsel might have been able to cure this ground of objection by proof of the witness’ qualifications. Mulkey thus waived his right to raise this objection.” Andean Motor Co., supra at 32. See also DuBois v. Ray, 177 Ga. App. 349 (1) (339 SE2d 605) (1985) (admission of videotaped deposition upheld over objection that no court order had been obtained to authorize deposition). Although the City argues it could have “cured” the ground for the inadmissibility of Dr. Murray’s testimony if objection had been raised at the time of the deposition, this argument is belied by the transcript in which Dr. Murray’s credentials were set forth in detail which, while showing him to be an orthopedic surgeon with impeccable medical credentials, presented no indication that Dr. Murray possessed any expertise whatsoever in the area of seat belt usage. This case is thus unlike Andean Motor Co. in which the only evidence regarding the witness’ expertise on the issue of whether a 3/4-ton truck was defective, was that he was the president of a business providing engineering services in the field of accident reconstruction, fire and explosion studies, personal injury and products liability claims. Accordingly, we find no error in the trial court’s refusal to admit this deposition testimony.

The alternative error asserted by the City in this enumeration is that the trial court erred by failing to charge the jury that they could consider evidence of appellee’s failure to use a seat belt on the issue of damages. Although there are over 8,000 pages of record and transcript involved in this appeal alone, the City did not cite this court to where it made a request to charge on this issue or to what evidence established the causal connection between appellee’s injury and his non-usage of the lap-style seat belt, other than the deposition testimony we have held properly excluded and appellee’s admission that he was not wearing a seat belt. Even assuming the City’s request to charge was otherwise correct, our review of the trial transcript has revealed no evidence to connect the injuries appellee sustained with his failure to wear a seat belt and since evidence regarding appellee’s non-usage of his seat belt is not sufficient to justify giving a “seat belt” charge, we find no error in the trial court’s refusal to give such a charge. See F.A.F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (a) (354 SE2d 6) (1987).

11. In conclusion, the City has enumerated no error requiring reversal of the judgment below. In light of our holding in Division 4, supra, however, in which we upheld the jury’s verdict dividing the liability for the $2,500,000 award equally so as to render the City responsible for $1,250,000, we affirm the judgment of the trial court with direction that it vacate that part of its judgment erroneously disregarding the clear intendment of the jury’s verdict and enter judgment for that amount accordingly.

12. Our holding affirming the judgment in favor of appellee against the City renders it unnecessary for us to address appellee’s cross-appeal in Case No. 76076 and, therefore, it is dismissed.

76077. Cook v. Moreland et al.

13. Appellee made this court’s consideration of his appeal from the grant of summary judgment to Moreland and Burnham contingent upon a determination by this court that a retrial of this lawsuit was required. Since no retrial is necessary, Case No. 76077 is likewise dismissed.

Judgment affirmed with direction in Case No. 76075. Judgment reversed in Case No. 76211.

Appeal dismissed in Case Nos. 76076, 76077, and 76212. Birdsong, C. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs in Divisions 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13 and in the judgment. McMurray, P. J., and Carley, J., dissent. Deen, P. J., dissents dubitante.

Carley, Judge,

dissenting in part.

I concur in the majority’s reversal of appellee’s judgment against the appellant Atlanta and West Point Railroad Company. I also concur in that portion of the majority’s opinion which holds the appellant City of Fairburn’s enumeration of the general grounds is without merit. I cannot, however, concur in the majority’s ultimate affirmance of judgment in favor of appellee against the appellant City of Fair-burn. In Division 10 of its opinion, the majority holds that the trial court did not err in sustaining appellee’s objection to the admission into evidence of certain deposition testimony which had been given by his treating physician. The sustained objection was to the lack of a sufficient showing of the witness’ expert qualifications to give the testimony. In holding that there was no error, the majority purports to distinguish Andean Motor Co. v. Mulkey, 251 Ga. 32 (1) (302 SE2d 550) (1983). In my opinion, Mulkey cannot be distinguished and, as controlling authority, mandates the reversal of the judgment in Case Number 76075. Accordingly, I must respectfully dissent to the majority’s failure to grant a new trial as to the appellant City of Fairburn.

During the deposition of appellee’s treating physician, there was no objection raised to his expert qualifications to give the testimony which was subsequently disallowed pursuant to appellee’s objection at trial. “Extended discussion or citation of authorities is not required to demonstrate that if [appellee] had objected during the deposition to the absence of proof of the witness’ competence to testify as an expert, . . . counsel [for the appellant City of Fairburn] might have been able to cure this ground of objection by proof of the witness’ qualifications. [Appellee] thus waived his right to raise this objection. OCGA § 9-11-32 (d) (3) (A). . . . [Cit.]” Andean Motor Co. v. Mulkey, supra at 251 (1). The majority seemingly interprets Mulkey as standing for the proposition that, notwithstanding the provisions of OCGA § 9-11-32 (d) (3) (A), the sustaining or overruling of an objection which is raised at trial to a deponent’s expert qualifications to give certain testimony is a matter which is addressed to the trial court’s discretion. According to the majority, Mulkey was a case wherein the Supreme Court affirmed the trial court’s exercise of its discretion to admit evidence over an objection to the deponent’s expert qualifications, whereas the present case is simply one wherein the trial court was authorized to exercise its discretion to exclude the deposition testimony over that objection. However, it was only this court which addressed the trial court’s determination to sustain or overrule a trial objection to the deposition testimony in terms of the exercise of discretion. See Mulkey v. Gen. Motors Corp., 164 Ga. App. 752 (299 SE2d 48) (1982). The Supreme Court reversed this court but, in so doing, the Supreme Court did not hold that it was the trial court’s exercise of its discretion which authorized it to admit the evidence over the objection which had not been raised during the deposition. Instead, the Supreme Court based its holding solely upon the provisions of OCGA § 9-11-32 (d) (3) (A). Accordingly, contrary to the majority, I construe Mulkey to stand for the proposition that, in ruling on an objection at trial to the expert qualifications of a deponent, it is only the provisions of OCGA § 9-11-32 (d) (3) (A) which are controlling, not the exercise of discretion of the trial court. Under OCGA § 9-11-32 (d) (3) (A), any objection by appellee to the deposition testimony of his treating physician was waived. The majority cites no case which supports its proposition that the trial court has discretion to sustain an objection to the admission of evidence at trial, which objection has already been waived as a matter of law.

Decided July 8, 1988

Rehearings denied July 27, 1988

Gary H. Brakefield, Kirby A. Glaze, George E. Glaze, for City of Fairburn.

Charles H. Ivy, Joseph C. Chancey, Harold N. Hill, Jr., for Cook.

Jack H. Senterfitt, Richard T. Fulton, William B. Brown, for Atlanta & West Point Railroad.

The majority also attempts to distinguish Mulkey by relying upon the fact that the deposition in the case at bar sets forth the deponent’s expert qualifications in some detail, whereas there was comparatively little evidence adduced as to the witness’ expertise with regard to the issue involved in Mulkey. According to the majority, this serves to demonstrate that the appellant City of Fairburn could not have “cured” the objection which was subsequently raised at trial to the admission of the deponent’s testimony, even if that objection had been raised at the deposition. The majority fails to consider that, regardless of the extent of the detail which may have been adduced during the deposition, the point in Mulkey is identical to the point in the present case: The party who proffered the deposition testimony at trial was not put on notice of any objection to the expert qualifications of the witness so as to be afforded an opportunity to attempt to make a timely cure of any possible defect in the deposition testimony. We cannot say with any degree of certainty that, had counsel for the appellant City of Fairburn been apprised of the need to do so, he would not have been able to proffer additional testimony to demonstrate the expert qualifications of the deponent to give his opinion on the specific issue in question.

It is my opinion that Mulkey is applicable and controlling and that we should reverse judgment in favor of appellee and order a new trial as against the appellant City of Fairburn. Accordingly, I must respectfully dissent to the affirmance of the judgment in Case No. 76075.

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


text:
    76775.
    BENNETT et al. v. MILLER.
    (371 SE2d 903)
   Deen, Presiding Judge.

Appellants Bern L. Bennett and Royston Custom Vans, Inc., appeal from the grant of summary judgment to appellee Arnold R. Miller in a suit brought by Miller to recover on a promissory note. Based upon the evidence presented by deposition, affidavits and interrogatories, the trial court found the following facts.

Miller loaned Royston Custom Vans $40,000 in November of 1983, in exchange for a promissory note endorsed by Bennett as secretary-treasurer and also personally guaranteed by Bennett. Miller made a similar loan in the amount of $23,000 to Starcraft, Inc., in November of 1983, in exchange for a promissory note signed and personally guaranteed by Jerry N. Neal. On January 18, 1984, these two loans were consolidated and a new promissory note was issued to Miller for the sum of $63,000, signed by Bennett as president of Royston Custom Vans and Neal as secretary-treasurer of Starcraft, Inc. Bennett and Neal personally guaranteed this note in their individual capacities, assuming joint and several liability for the total debt.

Bennett and Neal also executed an agreement on behalf of Royston Custom Vans and Starcraft for the purpose of a joint venture in which Bennett’s company would buy and furnish vans to Neal’s shop for his service personnel to customize, after which Bennett would sell them. The original Bennett note was obtained from Miller on the inquiry and recommendation of Neal, and Neal also approached Miller to discuss the consolidation of the two loans and acted as intermediary between the parties throughout negotiations of the terms of the loan and note and thereafter. Some of the payments were delivered to Miller by Neal and the remainder were mailed to Miller.

The dispute in the case arose when Bennett made a $40,000 payment by check to Starcraft, which he contends was meant to be applied against his indebtedness on the consolidated note. This intent was evidenced by a notation on the check stating: “To pay off loan from A. R. Miller.” Bennett believed that Neal was acting as agent for Miller and represented to him at the time he made this payment that his obligation on the note would be satisfied. However, Neal asserted that when Bennett brought him the check made out to Star-craft, he told Bennett that the money would be used for inventory financing in accordance with provisions of the joint venture agreement under which they shared various assets, inventory, and liability. Bennett did not receive any kind of receipt in return for the check, or the cancelled instrument, to evidence his discharge from his or Royston Custom Vans’ indebtedness under the note; nor did he inform Miller or obtain his permission to discharge the debt in this manner. None of the previous checks made in payment on the loans was made out to Starcraft, and there was no evidence that Miller ever received any benefit from Bennett’s $40,000 payment or was even aware of its tender. Bennett admitted that under the terms of the consolidated note he and his company were liable for the total sum of $63,000. The joint venture agreement specifically stated that both parties were “separate entities and neither party is authorized to bind the other or act for the other in any way whatsoever.”

Miller filed suit against Bennett, Royston Custom Vans, Neal and Starcraft, alleging that the full amount of the consolidated note had not been paid and seeking judgment in the amount of $63,000 plus interest, costs and attorney fees. Appellant answered, asserting as a defense the payment of $40,000 to Neal, counterclaimed against Miller for fraud and cross-claimed against Neal. Neal and Starcraft admitted liability to Miller, but denied any liability to appellants. Miller filed a motion for summary judgment against all defendants, which was opposed by appellants on the ground that a genuine issue of material fact existed as to Neal’s apparent agency on behalf of Miller. Neither Neal nor Starcraft opposed the motion for summary judgment and neither has appealed. The only issue raised by appellants is whether there was any evidence upon which a trier of fact could find that Neal was the apparent agent of Miller to collect money due on the promissory note.

Appellants urge that an agency relationship was shown by Neal’s actions as intermediary in negotiating the loans and forwarding payments to Miller, and that on at least one occasion Neal instructed appellants to make payments by delivering checks to him. They contend that this was “persuasive evidence” that Miller authorized Neal to collect money on his behalf, which, coupled with Neal’s actual attorney-client relationship with Miller and Miller’s reliance on Neal’s financial advice, clearly raised an issue of fact as to Miller’s ratification of Neal’s acts of agency. However, as pointed out by the trial court, there was no evidence that Miller ever at any time consented to Neal’s actions on his behalf or subject to his control, or that Neal had any power to create obligations on behalf of Miller. Rather, it appears that while Neal may have advised or made recommendations to both Bennett and Miller, he had no authority to bind either party to any terms or agreements. Nor was there any evidence of any conduct or statements made by Miller which could reasonably cause any third person, including Bennett, to believe that Miller had consented to any acts of Neal as his agent. Indeed, both Neal and Miller emphatically denied that such a relationship ever existed.

“An agency relationship may arise by implication as well as by express authority, and agency may be proved by circumstantial evidence. OCGA § 10-6-1 [and cits.]. Agency may result where one party has apparent authority to effect the legal relations of another party by transactions with a third party, but it must be emphasized that apparent authority to do an act is created as to a third person when the statements or conduct of the alleged principal reasonably cause the third person to believe that the principal consents to have the act done on his behalf by the purported agent. [Cits.] ‘(W)here the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such an agency exists. [Cits.]’ [Cit.]” Hinely v. Barrow, 169 Ga. App. 529, 530-531 (313 SE2d 739) (1984). (Emphasis supplied in part and in original in part.)

“ ‘It has long been the Georgia rule that one who is a party to the [alleged] relationship (the principal or agent) may testify as a fact as to the existence or non-existence of the relationship and that such testimony would not be subject to the objection that the statement was a conclusion or the ultimate fact’ [Cit.] The denial of the existence of any agency relationship may thus constitute an uncontradicted fact which will sustain a motion for summary judgment. Where the other party attempts to controvert this fact by circumstantial evidence ‘it must be evidence sufficient to support a verdict.’ [Cit.] ‘The circumstantial evidence . . . must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions.’ [Cit.] Tested by the applicable principles we find no evidence sufficient to establish that relationship. Both [Miller and Neal] denied . . . that there was a principal-agent relationship. Having no direct evidence as to agency the burden was upon [appellants] to introduce circumstantial evidence sufficient to carry the case to a jury. It is axiomatic that neither an interest in the success of an enterprise, [cit.], nor a close relationship, [cit.], establish [sic] an agency relationship.” (Indention omitted.) Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 792-793 (2-a) (359 SE2d 920) (1987) (cert. den. 183 Ga. App. 906). While in the last-cited case two judges disagreed with Division 4 of the majority opinion, all judges concurred fully in the first three divisions, the segments of the case which are relied upon here and which contain all of the portions cited in the instant case. It follows that we find no basis for reversal.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided July 8, 1988

Rehearing denied July 27, 1988

Franklin Superior Court. Before Judge Grant. Ken Stula, for appellants.

Robert K. Broome, for appellee.


text:
    76782.
    PROGRESSIVE CASUALTY INSURANCE COMPANY v. SCOTT.
    (371 SE2d 881)
   Deen, Presiding Judge.

On February 21, 1986, Ronald Scott was killed when the motorcycle he was riding struck a truck driven by Clyde Hutchinson, who was hauling agricultural products. Scott’s widow filed this direct action against Hutchinson’s insurer, Progressive Casualty Insurance Company (Progressive). Progressive moved for summary judgment on the grounds that the direct action against it was improper. The trial court denied that motion, and this interlocutory appeal by Progressive followed.

In December 1985, Progressive had filed with the Public Service Commission (PSC) an insurance policy covering Hutchinson. That policy was on file with the PSC until April 1986, at which time the PSC returned the policy to Progressive because of an incorrect address. Progressive never bothered correcting the error because it can-celled the policy. Prior to December 1985, the PSC had issued Hutchinson a registration permit as an interstate carrier of exempt commodities in accordance with OCGA § 46-7-61. The PSC, however, suspended this permit retroactively as of December 5, 1985, when no corrected insurance policy was ever submitted in April 1986. Held:

OCGA § 46-7-58 (e) of the Motor Carrier Act provides that if a motor carrier submits an insurance policy to the PSC for the protection of the public against injuries caused by the motor carrier’s negligence, then any person asserting a claim for such an injury may “join the motor carrier and the insurance carrier in the same action. . . .” This joinder provision applies both to fully regulated truckers and to truckers operating with registration permits pursuant to OCGA § 46-7-61. Westport Trucking Co. v. Griffin, 254 Ga. 361 (329 SE2d 487) (1985).

Progressive contends, however, that the direct action against it was improper because Hutchinson’s vehicle was exempt under OCGA § 46-1-1 (8) from these regulations regarding motor contract carriers. The OCGA § 46-1-1 (8) in effect at the time of the incident, in defining motor contract carrier, did exclude motor vehicles engaged exclusively in the transportation of exempt agricultural products, but the pleadings and evidence certainly did not establish beyond question the fact that Hutchinson fell within that exempted category. It was shown that Hutchinson was hauling agricultural products on February 21,1986, but not that his truck was used exclusively for the transportation of such exempt products.

Decided July 5, 1988

Rehearing denied July 27, 1988

Chatham Superior Court. Before Judge Cheatham.

Charles W. Brannon, Jr., for appellant.

Progressive also contends that it was entitled to summary judgment because the insurance policy was never approved by the PSC. In construing OCGA § 46-7-12, regarding the allowance of direct actions against the insurers of motor common carriers, this court held that proof that such insurance policy had been “filed with and approved by the Public Service Commission” was an essential element to a direct cause of action against the insurer. Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 510 (359 SE2d 351) (1987). The pertinent provisions of OCGA § 46-7-58, regarding motor contract carriers, are identical to the corresponding provisions of OCGA § 46-7-12. It follows that proof of filing of the insurance policy and approval by the PSC is likewise essential to allowing a direct action against the insurer of a motor contract carrier.

However, in this case there was sufficient evidence of filing of the policy and approval by the PSC to withstand a motion for summary judgment. The affidavit of the PSC Director of Compliance, which indicated that Hutchinson’s registration permit was suspended as of February 21, 1986, and that no insurance policy was on file with the PSC as of February 21, 1986, was thoroughly contradicted by the remainder of the record, including admissions made by Progressive. Indeed, there is no doubt that as of the actual day of February 21, 1986, Hutchinson’s permit had not been suspended and the insurance policy was on file with the PSC. Concerning the issue of actual approval of the policy by the PSC, there is no evidence either way. The sole predicate for Progressive’s contention that the PSC had not approved the policy was the affidavit of the PSC compliance officer stating that no policy was on file with the PSC. That statement having been contradicted by Progressive itself in its admissions, Progressive’s contention is unsupported. The trial court properly denied summary judgment for Progressive.

Judgment affirmed.

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

Richard H. Middleton, Jr., Barry R. Brown, for appellee.