text:
    77647.
    STEVENS v. MYERS.
    (378 SE2d 334)
   Carley, Chief Judge.

Appellant-plaintiff filed a petition for statutory partition of certain property. See OCGA § 44-6-160. Appellee-defendant answered, denying the material allegations of the petition. Appellant subsequently filed a motion to recuse the trial court. The stated ground for the recusal motion was the trial court’s alleged bias and prejudice against appellant and her family. The motion was heard before another judge and was denied. Although the denial of the recusal motion was certified for immediate review, appellant did not apply for an interlocutory appeal. Thereafter, appellee moved to dismiss appellant’s petition. After conducting a hearing, the trial court granted appellee’s motion to dismiss and appellant appeals from that order. Appellant’s sole enumeration of error relates to the denial of her motion to recuse.

1. Prior to addressing the merits of appellant’s enumeration, two issues relating to appellate jurisdiction must be resolved.

Appellate jurisdiction over cases involving statutory partition is in the Supreme Court of Georgia. See Wiley v. Wiley, 233 Ga. 824, 826 (1) (213 SE2d 682) (1975). However, “the [sole] issue in this appeal [, recusal of the trial court,] in no way deals with [an area where exclusive jurisdiction rests in the Supreme Court.] ... It is not what is in the complaint before the trial court that determines [the Supreme] Court’s jurisdiction, but the issues on appeal.” (Emphasis in original.) Hatfield v. Great American &c. Investment, 258 Ga. 640 (373 SE2d 367) (1988). Accordingly, it is this court which has jurisdiction to entertain this appeal.

Decided January 10, 1989

Rehearing denied January 27, 1989.

Lucinda Stevens, for appellant.

Thomas, Kennedy, Sampson, Edwards & Slayton, Donald P. Edwards, for appellee.

Appellee urges that this appeal should be dismissed because appellant could have sought an interlocutory appeal from the denial of her motion to recuse. “[A]ppellant[’s] failure to appeal immediately is not a waiver of [her] current right to enumerate the trial court’s [denial of her motion to recuse] as error. . . . [Appellant was] not required to seek an immediate interlocutory appeal and, a final order having since been entered in the case, [the order granting appellee’s motion to dismiss], [she] now [has] the right to secure an appellate review of the ruling. [Cits.]” PIE Nationwide v. Prickett, 189 Ga. App. 77, 78 (374 SE2d 837) (1988). Accordingly, appellee’s motion to dismiss this appeal is denied.

2. “ ‘In order to be disqualifying the alleged bias “must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” ’ [Cits.] The alleged bias of the judge must be ‘ “of such a nature and intensity to prevent the [party] . . . from obtaining a (trial) uninfluenced by the court’s prejudgment.” [Cit.] To warrant disqualification of a trial judge the affidavit supporting the recusal motion “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” [Cits.]’ [Cit.]” Birt v. State, 256 Ga. 483, 485-486 (4) (350 SE2d 241) (1986). After reviewing the record, we find that appellant’s motion to recuse was correctly denied. See generally Cargill v. State, 255 Ga. 616, 622 (2) (340 SE2d 891) (1986); Nix v. State, 236 Ga. 110, 111 (1) (223 SE2d 81) (1976); Penney v. State, 157 Ga. App. 737 (1) (278 SE2d 460) (1981).

3. Appellee’s motion for the assessment of a penalty against appellant pursuant to Rule 26 (b) is denied.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs in judgment only.


source: Caselaw Access Project

author: Deen, Presiding Judge. Sognier, Judge,

license: Public Domain

text:
    77863, 77864.
    PAYNE v. JONES & KOLB et al.
    (378 SE2d 467)
   Deen, Presiding Judge.

In 1984, Joseph F. Payne and three other men hired the accounting firm of Jones & Kolb (Jones) and the law firm of David R. Kam & Associates (Kam) to assist them in setting up a business venture and creating a limited partnership to fund the venture. The partnership was created, but it never did any business. When the accounting and law firms were not paid for their services, Jones and Kam brought lawsuits against the four men for $7,935 and $19,165 plus interest. The suits were consolidated for trial lay the court. Prior to trial, the plaintiffs settled with all of the defendants except Payne for $10,000. Jones and Kam continued to seek the full amount claimed for their services against Payne. A jury verdict awarded $2,000 to Jones and $3,915.20 to Kam plus 7 percent interest from July 1, 1985. Appellant filed a motion for a judgment notwithstanding the verdict and for a set-off against the verdict of the amount his co-defendants had paid the plaintiffs in settlement. The motions were denied.

1. The record shows that two of appellant’s co-defendants had consent judgments entered against them for $5,000 and $4,500 respectively. The plaintiffs entered into a release and covenant not to enforce judgment with the third co-defendant for a $500 settlement. The release provided that it could not be used or adopted to release Payne from any claims that they were asserting against him in the lawsuit. Payne enumerates as error the trial court’s denial of his motion to set-off the amount of the settlement against the jury verdict. Appellant argues that the jury verdict reflects the jury’s assessment of the total value of appellees’ services and that by dismissing one co-defendant the plaintiff released the remainder.

In Rowland v. Vickers, 233 Ga. 67, 68 (209 SE2d 592) (1974), the Supreme Court held: “The dismissal of an action against a defendant with prejudice even when a consideration is paid by such defendant to the dismissing party, does not, as a matter of law, adjudicate all issues in the case. Such a dismissal merely means that the same plaintiff cannot again sue that same defendant on that same cause of action. The dismissal of an action with prejudice against a defendant adjudicates only the non-liability of that defendant to the plaintiff. It does not adjudicate other issues. Such a dismissal is not the equivalent of a judgment rendered in favor of the plaintiff against the defendant, because such a judgment does adjudicate the liability of the defendant to the plaintiff. In short, a judgment of dismissal with prejudice against one defendant is not repugnant to and inconsistent with another judgment rendered in favor of the same complaining party against another defendant on the same cause of action. A dismissal with prejudice against one defendant does not preclude the same plaintiff from bringing the same cause of action against another defendant. The second defendant may be able to prove full satisfaction for the committed tort by the first defendant, but that is a question of fact that cannot be resolved unless the evidence submitted clearly and unequivocally shows full satisfaction by the first defendant.”

We find that this rule also applies in a case in quantum meruit as in the instant case. As in Rowland v. Vickers, supra at 68, “[s]uch clear and unequivocal evidence is not present in this case.” Indeed, the appellant presented no evidence to show appellees were fully compensated by the defendants. Appellees contend, without supporting evidence to be found in the record of transcript, that evidence of other defendants’ presence in the case and the amount of the settlement was not presented to the jury because appellant objected to a pretrial motion which sought to present this evidence to the jury.

As to the consent judgments entered against two of the defendants, we note that a judgment rendered in conformance with an agreement to settle is not synonymous with a contested trial. Blakely v. Couch, 129 Ga. App. 625, 629 (200 SE2d 493) (1973). A consent judgment “is not a judgment of the court, it is the agreement of the parties, entered upon the record with the sanction and approval of the court, and is their act rather than that of the court. [Cits.]” Black’s Law Dictionary, 978 (4th ed. 1968). Such judgments do, of course, bind the parties as fully as other judgments.

We find no error in the trial court’s refusal to permit a set-off of the settlement amounts against the jury verdict.

2. It is within the trial court’s discretion to permit a plaintiff to submit additional evidence after the plaintiff has rested its case. This discretion will not be disturbed on appeal absent abuse. A. P. S. S. v. Clary & Assoc., 178 Ga. App. 131 (342 SE2d 375) (1986). We find no abuse of the court’s discretion.

3. There is no merit in appellant’s argument that he was entitled to a judgment notwithstanding the verdict. The value of services rendered by appellants was solely a jury question. Bailey v. Fox, 144 Ga. App. 195 (240 SE2d 737) (1977). The plaintiffs offered testimony from expert witnesses as to the time, effort and expenses necessary to establish a limited partnership and also as to the amount of time, manpower, expenses, etc., the plaintiffs actually expended in this case. The testimony also included evidence as to the fees normally charged by others in the legal and accounting community for such services, that the value of their services was reasonable and that the professionals involved performed the services requested by Payne. The evidence was sufficient for the jury to determine the reasonable value of the plaintiffs’ services.

4. As appellant raised no objection to improper venue until after the jury verdict was rendered, he waived it. Vanguard Ins. Co. v. Beasley, 167 Ga. App. 625 (307 SE2d 56) (1983).

5. Appellant’s remaining enumeration of error has been largely addressed in Division 1 above. The release and dismissal of some of the defendants from a lawsuit does not release others from liability unless it is specifically agreed that the release discharges them. Posey v. Med. Center-West, 257 Ga. 55, 59 (354 SE2d 417) (1987). The release in question stated clearly that the plaintiffs were not releasing their claims against Payne.

Judgments affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Carley, C. J., concurs in the judgment only. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent. The record reveals that David R. Kam & Associates (Kam) and Jones & Kolb (J&K) brought suits against four partners, Payne, Malin, Rivers and Pelt, jointly and severally, to recover for services rendered. The suits were consolidated with plaintiffs seeking a combined sum of $27,090.20. As plaintiffs acknowledge in their brief, both plaintiffs settled with Malin, Rivers and Pelt for an aggregate sum of $10,000. The case proceeded to trial solely against Payne based on the alternate theories of breach of contract and quantum meruit. A review of the transcript reveals that the evidence presented at trial went to the value of all services rendered by plaintiffs: no evidence was presented indicating Payne’s individual share of the amount due. Further, no evidence was presented to the jury regarding other sums received by plaintiffs nor was any charge given the jury intimating such other payments. The jury returned a verdict in favor of plaintiff Kam for $3,915.20 and in favor of plaintiff J&K for $2,000. The trial court’s denial of Payne’s motion to reduce the judgment by the amount of payments received by plaintiffs in settlement with Payne’s partners is enumerated as error on appeal.

The principle is well established that a plaintiff is entitled to but one satisfaction of the claim. Ford Motor Co. v. Lee, 137 Ga. App. 486, 490-491 (10) (224 SE2d 168) (1976), aff’d in part, rev’d in part 237 Ga. 554 (229 SE2d 379). “ ‘By the weight of authority, . . . since the creditor is entitled to but one satisfaction, no matter how many persons may be bound to render it to him, any payment so made must be credited as against the other co-obligors. . . .’” Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 59 (60 SE2d 770) (1950). There is no merit in appellees’ argument that this principle is limited only to actions ex delicto. See City Express Svc. v. Rich’s, Inc., 148 Ga. App. 123, 125 (4) (250 SE2d 867) (1978). Nor is there any support in the record for appellees’ argument that the verdict did not reflect the jury’s assessment of the total value of services provided by appellees. Finally, although appellees accurately state that evidence of settlement sums received was presented to the jury in Ford Motor Co. v. Lee, 137 Ga. App. at 490, and the jury charged regarding such sums, but see Ford Motor Co., 237 Ga. at 555, no such evidence was presented or charge made to the jury in Atlantic Coast Line R. Co., supra, in which this court directed that the $4,000 settlement amount be written off the verdict received by the plaintiff therein. Appellees thus fail in their attempt to distinguish the case sub judice from the controlling authority presented in Ford Motor Co. and Atlantic Coast Line R. Co., supra, by asserting that the settlement sums they received from appellant’s partners cannot be written off the verdict because appellant failed to introduce evidence regarding those sums at trial.

Decided January 3, 1989

Rehearing denied January 27, 1989

Herbert P. Schlanger, for appellant.

Jeffrey A. Bashuk, for appellees.

The jury having determined that the services rendered by appellees were worth $5,915.20, rather than the $27,090.20 value claimed by appellees, and appellees having admittedly received a $10,000 aggregate sum from appellant’s jointly and severally liable co-defendants, this sum operated as a payment pro tanto upon the judgment obtained against appellant. American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 837 (278 SE2d 719) (1981). I would therefore reverse the entry of judgment insofar as the trial court’s failure to write off from the verdict the amount earlier received by appellees. See Atlantic Coast Line R. Co., supra at 61 (3). However, while appellees do not controvert appellant’s computations which indicate the entire verdict against appellant as to both appellees must be completely written off, the record indicates the amounts paid each appellee only insofar as Rivers is concerned. The record reveals that there was no apportionment between appellees in the payment made by Pelt and the record fails to reflect the terms of the settlement made by Malin. Thus, I would set aside the judgment and remand for further hearing by the trial court as to the proportions, the amounts received by appellees, and the proper interest thereon, in order to determine properly the amounts to be written off the verdict.


author: Carley, Chief Judge.

text:
    77638, 77848.
    TRAVELERS INSURANCE COMPANY v. SEGAN; and vice versa.
    (378 SE2d 367)
   Carley, Chief Judge.

Howard Segan filed a tort action against Joel Markwell, seeking to recover for personal injuries suffered in a two-car collision. Travelers Insurance Company (Travelers), as Segan’s uninsured motorist carrier, was served with a copy of the complaint against Markwell. Travelers did not, however, file an answer in its own name and, by not doing so, elected not to become a party to the action.

Segan’s tort action against Markwell proceeded to trial before a jury. The jury returned a $30,000 verdict in favor of Segan. On the jury’s verdict in favor of Segan, the trial court entered judgment against Markwell “in the amount of $10,000 and [judgment] against Travelers ... in the amount of $15,000, [Segan] being entitled to recover a total of $25,000, that is, the amount of the jury verdict less the no-fault credit of $5,000 to which Markwell is entitled.” (Emphasis supplied.) In Case Number 77638, Travelers appeals from the $15,000 judgment entered against it. In Case Number 77848, Segan cross-appeals from the $25,000 judgment entered in his favor.

Case No. 77638

1. A motion to dismiss the main appeal has been filed, the contention being that Travelers was not a party to the action below and therefore lacks the standing to bring this appeal.

It is true that Travelers should not be a party to the action below. Although it was served with a copy of Segan’s complaint against Markwell, Travelers filed no answer in its own name. Accordingly, Travelers elected not to interject the issue of its contractual liability to Segan into the case and the action below was tried solely as to the issue of Markwell’s tort liability to Segan. See generally Smith v. Phillips, 172 Ga. App. 459 (323 SE2d 669) (1984). Compare Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980).

However, it is also true that Travelers was made a party to the action below when the trial court entered judgment and made Travelers a judgment debtor as to Segan. It is illogical to suggest that one against whom a judgment has been entered lacks the standing to appeal from that judgment. Since Travelers was actually made a party to the judgment (compare Gates v. Rutledge, 151 Ga. App. 844 (261 SE2d 757) (1979)), it has the standing to bring this appeal and the right to enumerate error as to the judgment that was entered against it. Compare Samples v. Greene, 138 Ga. App. 823, 826 (6) (227 SE2d 456) (1976). Accordingly, the motion to dismiss Travelers’ appeal is denied.

2. In its enumerations of error, Travelers does not cite its lack of capacity as a party to the action below and does not urge that, on that basis, there should be a complete reversal of the judgment that was entered against it. It contends only that the trial court erred by entering a $15,000 rather than a $10,000 judgment against it. Thus, Travelers waives the trial court’s erroneous entry of any judgment whatsoever against it. In effect, Travelers consents to the trial court’s entry of a judgment against it, contending merely that there was a miscalculation of the amount of the judgment to which it has otherwise consented.

Decided January 27, 1989.

R. Chris Irwin & Associates, James P. Boston, Bryan F. Dorsey, for appellant.

Randy S. Slater, Frank L. Derrickson, for appellee.

The jury returned a verdict in the amount of $30,000. From this verdict, the sum of $5,000, which represented the amount of no-fault benefits available to Segan, must be written off. See OCGA § 33-34-9 (b). As to the $25,000 that is thus recoverable by Segan, Travelers, as Segan’s uninsured motorist carrier, “should bear the [amount of] damages exceeding [Markwell’s] liability coverage. ...” Ga. Farm &c. Ins. Co. v. State Farm &c. Ins. Co., 255 Ga. 166, 167 (336 SE2d 237) (1985). It is undisputed that Markwell has liability coverage with limits of $15,000. It accordingly follows that, of the recoverable $25,000, Travelers is contractually liable to Segan for only $10,000, that being the amount by which Segan’s awarded damages exceed the limits of Markwell’s liability coverage. Therefore, the trial court did err in entering a $15,000 judgment against Travelers. The judgment against Travelers is affirmed with direction that it be reduced from $15,000 to $10,000.

Case No. 77848

3. The cross-appeal is rendered moot by virtue of our disposition of the main appeal.

Judgment in Case No. 77638 is affirmed with direction. Appeal in Case No. 77848 is dismissed.

Deen, P. J., and Sognier, J., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77212.
    ADLER’S PACKAGE SHOP, INC. v. PARKER.
    (378 SE2d 323)
   Sognier, Judge.

Joann Parker brought suit against Adler’s Package Shop, Inc., for injuries sustained when she was attacked and shot by an acquaintance on a public sidewalk outside the package shop. The trial court denied the package shop’s motion for summary judgment, and we granted its application for interlocutory appeal.

Construed favorably to appellee as the respondent below, the record reveals that appellee and her assailant, Sherold Jackson, had an adversarial relationship for a number of months before the attack at issue. The two women had exchanged harsh words on several occasions, and each had sworn out a peace warrant against the other. Appellee testified by deposition that she was afraid of Jackson because Jackson had stolen personal belongings from appellee, burned clothing hanging on her clothesline, and even threatened to kill appellee. On the evening of October 14, 1985, appellee walked with her children to appellant’s package store, and while making a purchase spotted Jackson outside the premises. Appellee testified that she quickly left the store, but Jackson confronted her on the sidewalk, pulled out a knife, and after a brief struggle stabbed appellee in the arm. Jackson then took a handgun from her purse and shot appellee, injuring her severely. Appellee also testified that Grady Knight, the private security guard employed by appellant, came outside the store during the altercation and told the two women to stop fighting, and that when Jackson pulled out the weapons Knight asked her to drop them. Appellee acknowledged in her deposition that she had never mentioned her feud with Jackson to anyone associated with appellant, and that she did not ask Knight for assistance.

1. In its first two enumerations, appellant contends the trial court erred by denying its motion for summary judgment because no material factual question is presented regarding a breach of duty for which it could be held liable for appellee’s injuries. Appellant argues that it is not liable to patrons injured by the unforeseen criminal acts of third parties, and that its security guard did not assume a duty to protect appellee from a criminal assault arising from personal malice of the attacker.

(a) We first address appellant’s contention that it cannot be held liable for injuries to its patrons resulting from the criminal acts of third parties because such a danger is not reasonably foreseeable. Although a business proprietor is not an insurer of the safety of its patrons, Washington Rd. Properties v. Stark, 178 Ga. App. 180, 181 (342 SE2d 327) (1986), a proprietor “has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct.” Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673 (165 SE2d 179) (1968). However, “unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor’s premises do not activate liability by the proprietor . . . [unless] it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur. [Cit.]” Fowler v. Robertson, 178 Ga. App. 703, 704 (344 SE2d 425) (1986). “ ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ [Cit.]” Shockley, supra at 675 (1).

We find Shockley is controlling in the instant case. In Shockley, the plaintiff was attacked inside a store by Hillman, a woman who previously had threatened the plaintiff and against whom the plaintiff had taken out a peace warrant. Hillman confronted the plaintiff in the checkout line, the two women began struggling, and when an employee of the defendant store and a shopper separated them, Hillman cut the plaintiff with a razor. This court affirmed the grant of summary judgment to the defendant, reasoning that “[w]hile a business proprietor has a duty . . . to exercise ordinary care to protect persons on its premises as business invitees from foreseeable dangerous conduct of others, we know of no authority holding that this duty of ordinary care requires the proprietor to intervene to save a business invitee from an assault arising from the assailant’s personal malice toward the victim. [Cit.]” (Emphasis in original.) Id. at 674. Therefore, we find appellant owed no duty to appellee as a matter of law, and the trial court erred by assuming “arguendo” that such a duty existed.

Appellee tries to distinguish Shockley by arguing that Jackson’s criminal attack was foreseeable because the package shop had been the scene of two armed robberies, a theft, and a burglary prior to the altercation between appellee and Jackson, and appellant had hired a security guard. However, those crimes were directed against the business itself and were not similar to the incident at issue here. “ ‘While the relevancy of other occurrences is ordinarily within the sound discretion of the court, “it is necessary that the conditions of the things compared be substantially similar.” [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. [Cits.]’ [Cit.]” McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130) (1983). We find that proof of prior dissimilar crimes occurring several years before the incident at issue “did not meet the ‘similarity’ requirement so as to constitute a sufficient showing of [appellant’s] knowledge of the ‘litigated’ dangerous condition.” Id. at 592-593. Thus, no evidence proffered was sufficient to present a factual question as to whether appellant knew or should have known that any of its patrons was at risk of an assault by a personal adversary outside appellant’s business premises. See Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281) (1987). Compare Lay v. Munford, Inc., 235 Ga. 340 (219 SE2d 416) (1975).

(b) Appellee next contends that the hiring of a security guard creates an exception to the general rule regarding lack of liability of proprietors for criminal acts of third parties because once a business owner undertakes to provide security for its patrons, the owner may be liable for injuries resulting from the negligent performance of the security operations. Specifically, appellee asserts, because appellant employed a security guard and because the guard voluntarily intervened in the struggle between appellee and Jackson, he was obligated to perform that undertaking with ordinary care as required by the Restatement (2d) of Torts, § 324 A, which provides as follows: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or . . . (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

We find this provision of the Restatement to be inapposite for three reasons. First, as previously discussed, there is no evidence appellant or its security guard should have recognized that any security services were “necessary for the protection of [appellee]” because the prior thefts previously committed within the store were not sufficiently similar so as to alert appellant to a risk of physical assault upon patrons occurring outside the premises and arising from the personal malice of the attacker, and thus the essential element of foreseeability was not present. See Hewett v. First Nat. Bank, 155 Ga. App. 773, 774 (272 SE2d 744) (1980). These circumstances contrast with those presented in the case cited by appellee, Atlanta Center Ltd. v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986), in which we held that summary judgment was improper when the plaintiff was assaulted by an unknown attacker in the elevator of a hotel which provided mechanical security devices in the elevators and security personnel inside the hotel premises. Contrary to the case at bar, in Atlanta Center a jury question was presented because there was no prior personal connection between the assailant and the victim, and the hotel was aware of a risk of harm to its guests in the elevators and hallways.

Second, even assuming that Knight did recognize that such a need for protection had arisen when he admonished the women to stop fighting, nothing in the record suggests that Knight’s actions “increase [d] the risk of . . . harm” to appellee. Subparagraph (a) of Section 324 A of the Restatement “applies only when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed.” Argonaut Ins. Co. v. Clark, 154 Ga. App. 183, 185 (267 SE2d 797) (1980). Although appellee argues that the risk to her may have increased once Knight failed to stop the fight because Jackson may have become confident that no one would intervene, there is no evidence in the record to support that contention.

Third, although appellee asserts she relied on Knight’s protection within the meaning of subparagraph (c) of Section 324 A, appellee admitted in her deposition that no one associated with appellant was aware of the animosity between her and Jackson, and also revealed she did not ask Knight for assistance at any time. Thus, we find no evidentiary support for appellee’s argument that she relied upon Knight to rescue her and was injured as a proximate result of his failure to do so. See generally Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442-443 (304 SE2d 397) (1983).

We also reject appellee’s argument that a contradiction in the security guard’s testimony raises a question of fact as to whether appellant, through its agent, voluntarily assumed a duty to protect appellee and was negligent in performing that obligation. Appellee points out that in Knight’s statement given to police shortly after the incident he stated that he saw Jackson with a knife and a gun before appellee was injured, whereas in later deposition testimony he did not recall seeing either weapon before Jackson shot appellee. We are aware of this conflicting testimony, and in viewing the evidence in favor of appellee, the respondent below, we have construed the evidence so as to show that Knight did see the weapons before appellee was injured. However, as discussed above, an injured person seeking to impose liability upon another for the negligent performance of a voluntary undertaking must show either detrimental reliance or an increased risk of harm, and we have found no evidence in support of either of these necessary prerequisites. “[0]nce a party in the position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements. [Cit.]” Waldrep v. Goodwin, 230 Ga. 1, 2 (1) (195 SE2d 432) (1973). Thus, any question regarding the propriety of Knight’s actions once he saw the weapons is immaterial.

“ ‘[(Questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. . . .’ [Cit.]” Ivey v. Fort Valley &c. Comm., 178 Ga. App. 791 (344 SE2d 543) (1986). Because “ ‘duty is defined lay the law,’ ” Shockley, supra at 673, and we have found that no duty was owed by appellant to appellee,, no material question of fact remains for determination by a jury. Accordingly, we find the trial court erred by denying appellant’s motion for summary judgment. See Washington Rd. Properties, supra.

2. Appellee contends the general rule regarding lack of liability for unforeseen criminal acts should not be applied here, arguing that appellant should be estopped from claiming that the incident did not arise from its business operations because its insurance company paid appellee for some of her medical expenses. Appellee has cited as authority for this contention Weldon v. Lashley, 214 Ga. 99, 103 (103 SE2d 385) (1958), in which the Supreme Court discussed the general principle that when a party to a lawsuit states one basis for his conduct, he cannot change this reasoning once litigation begins. This principle is an application of the doctrine of estoppel, which applies only where the representations of one party cause another to act in reliance thereon to the latter’s detriment. Glove &c. Ins. Co. v. Atlantic &c. Shipping Co., 51 Ga. App. 904, 906 (181 SE 310) (1935). We find no evidence in the record to support this theory. Even assuming, without deciding, that appellant’s insurance company was acting as appellant’s agent when it negotiated a payment to appellee, but see OCGA § 33-7-12 (a), appellee does not contend, and our review of the record does not disclose, that she relied upon any act or representation of appellant’s insurer to her detriment, or that she was damaged as a result of any change made in her position in reliance upon the insurer’s actions. See Morgan v. Maddox, 216 Ga. 816, 819 (120 SE2d 183) (1961); see generally Globe, supra at 909 (2). Further, there is no evidence that appellant intentionally deceived appellee or misrepresented or concealed any facts from her. See OCGA § 24-4-27; see also Jones v. Tri-State Elec. Co-op., 212 Ga. 577, 582 (2) (94 SE2d 497) (1956). Moreover, “ ‘[e]stoppel merely precludes [a party] from setting up a defense, but creates no new right of action in the opposite party.’ [Cit.]” Davis v. Johnson, 92 Ga. App. 858, 864 (90 SE2d 426) (1955). Because of our holding in Division 1 that appellant owed no legal duty to appellee which would give rise to a claim for negligence, appellee cannot use the doctrine of equitable estoppel to create a cause of action, and thus we find no question of fact is presented so as to require resolution by a jury.

3. Finally, we note that, although this matter was not raised in either party’s brief, on the day the trial court issued its order denying appellant’s summary judgment motion, appellee amended her complaint to allege that appellant also was liable on the basis of negligence per se for employing an armed guard when appellant and the guard were not licensed as required by OCGA § 43-38-1 et seq. for a private security business. It appears this amended complaint was filed before entry of the trial court’s order, but the record does not reveal whether the ruling below included the claim asserted in the amended complaint. However, because appellant enumerated the denial of its motion for summary judgment as error, we will consider the pleadings as amended, whether argued or not. See Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 784-786 (2, 3) (195 SE2d 277) (1972). “[T]he general rule [is] that a breach of duty to the State is not actionable on the part of an individual unless it enters into the proximate cause of his injuries.” Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669, 672 (104 SE2d 497) (1958). The record discloses no evidence establishing a proximate causal connection between the alleged statutory violation and the injuries appellee incurred as a result of Jackson’s assault. Thus, we find no question of fact exists regarding the actionable negligence of appellant. See generally Carpenter v. Lyons, 78 Ga. App. 214, 217-218 (50 SE2d 850) (1948). Accordingly, we hold appellant is entitled to summary judgment on this claim. See generally Hercules, Inc. v. Lewis, 168 Ga. App. 688 (309 SE2d 865) (1983).

Decided January 5, 1989

Rehearing denied January 30, 1989

4. Our holdings in Divisions 1 and 2 make consideration of appellant’s other enumerations unnecessary.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

The appeal in this case is from the trial court’s order of March 23, 1988, denying defendant’s motion for summary judgment. The court order in part stated: “Assuming arguendo defendant’s agent assumed a duty to protect plaintiff, there exist genuine issues of material fact as to whether the agent acted in a negligent matter [sic].”

The security guard gave a statement to the police within two hours of the incident, stating that he saw one of the two women with a knife and told her to put it away. This testimony was inconsistent with later remarks in his deposition, that he did not see a knife. We cannot say that this inconsistency was a deliberate contradiction of testimony; therefore, construing it in favor of the party opposing the summary judgment, the trial judge did not err in requiring resolution by the jury of these issues as to any breach of duty by the defendant.

The majority relies on Shockley v. Zayre of Atlanta, 118 Ga. App. 672 (165 SE2d 179). Even that case indicates “that a person who intervenes in a personal altercation is bound to exercise ordinary care in his rescue efforts.” Id. at 674. In the cited case, no trained security guard was employed by the business proprietor. In the instant case, one was employed, indicating an additional awareness for a duty to invitees. Reasonable minds may differ whether the security guard who saw the knife did something he should not have done or failed to do something that should have been done, in view of the circumstances and of his knowledge. A jury question is presented.

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

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, for appellant.

Ashman & Zipperer, Charles R. Ashman, Ralph R. Lorberbaum, for appellee.


author: Birdsong, Judge.

text:
    77250.
    BURLEY v. THE STATE.
    (378 SE2d 328)
   Birdsong, Judge.

Edward D. Burley, appellant, brings this appeal from his conviction for rape and aggravated sodomy. From the evidence presented, the jury was authorized to find that the victim was working at an all-night gasoline service station on the Cumberland Parkway, near Smyrna, Georgia. Early in the morning hours of May 13, 1987, she saw two cars pull into the station, one was an orange Camaro and one was a blue Thunderbird with a white top. The people in the cars spoke briefly and the Camaro left. The man in the Thunderbird was the appellant. He came to the cashier’s cage with a page torn from a phone book and asked for directions on how to get to the Scottish Inn motel. She gave him directions and they carried on a conversation for about 15-20 minutes, according to her estimate. He told her he was working for a photography company and took portraits of children and the family and wanted to know if she was married and had children. She said yes and he wanted her phone number but she told him she did not have a phone and refused to give him her address. Appellant asked if she would like to go out and she said, “No,” that she was married. He acted mad and left. Later, the victim was taking trash to the dumpster behind the service station and saw the orange Camaro and the blue Thunderbird. There was no one in the Camaro. While she was placing the trash in the dumpster, she heard someone running behind her and someone threw something over her head and she screamed. The other person told her several times to “Shut up or I’ll kill you.” She was dragged down the embankment behind the station into the woods and the man told her he had a gun and would kill her. Something cold and hard was pressed into her stomach and she became quiet. She was raped and the man committed oral sodomy upon her. She called the police and they arrived before the two people in the Camaro could leave.

Sheryl Dover and Valerie Carr were driving home in Dover’s Camaro when the appellant pulled his car alongside theirs at a 7-Eleven store and started making “vulgar . . . gestures. . . .” Dover drove away and appellant followed. Dover drove into the gas station where the victim was working and stopped. Appellant came up to her and asked for directions to the Scottish Inn motel where he was staying. Dover drove away in an attempt to get away from the appellant. She drove around for a few minutes and returned to the same gas station to use the rest room. Dover and Carr went into the rest room and stayed for 15-20 minutes. Carr was ill and vomited several times. When they came out, they saw police cars and were asked to give statements as to what they had seen and heard.

Appellant took the stand in his own defense and admitted that he had seen and spoken to Dover and Carr and then had attempted to phone his motel room. After receiving no answer, he tore the page out of the phone book and took it to the cashier at the gas station and asked her for directions. They struck up a conversation and the victim told him a lot about her marriage and she had marriage problems, that “her husband and her [were] having bad times. She said they was going through some rough times. She didn’t say exactly what was going on. . . .’’He said she asked him if he wanted to smoke some marijuana and he declined, so she smoked one “joint” by herself. Following that she asked him to have sex and they went into the car wash and each performed oral sex on the other and then they had vaginal intercourse while she was standing. Following that he left, but was unable to find the Scottish Inn motel where he was staying and spent the night in his car. He got a job the next day and was immediately sent to Alabama where he stayed until he went to his home in Indiana. He was asked if he went to Florida and he said “no,” that he had gone to Indianapolis.

In the appellant’s recorded statement, the investigator told him he had made it difficult for them. He responded: “Yeah. When ■— when I — I talked to Angie [his fiancee] when I was in Florida. I had to go down there ‘cause I — I had got in a little bit of trouble. . . .” The investigator then asked him “what happened out west?” Appellant said: “You know, I came back from Florida and I wanted to—I had seen the southeast coast. . . so I figured I wanted to go out west for a while, and I went out there. ...” The jury returned a verdict of guilty and this appeal followed. Held:

1. Appellant alleges there is an insufficiency of evidence to support a conviction “as the Complainant was unable to identify Appellant as her perpetrator.” Identity is not critical here. Appellant admitted he had oral and vaginal sex with the complainant. Consent is the principle issue. Appellant claimed the act was consensual, but the victim testified she was raped and sodomized. Appellant was placed at the scene by the victim and Dover. Appellant gave the victim his motel room number, and she and Dover knew he was asking for the Scottish Inn. Appellant admitted he was staying in the Scottish Inn. The officers saw trash on the victim’s clothes. The doctor who examined the victim in the hospital found in the pelvic area “earth dirt and leaves and twigs and things like that.” The appellant said the act of intercourse took place in the car wash while the victim was standing. The victim said the act took place on the ground, in the woods. The officers verified that in the woods immediately behind the gas station there was “evidence of a struggle in the place where somebody had been laying on the ground.” Because the victim had been given the room number of appellant, and he did not go back to his motel that night, but said that he went to Alabama the next day and then to Indiana, which conflicted with his earlier statement to the police that he went to Florida and the west coast, the jury was authorized to consider whether this was evidence of flight (Fredericks v. State, 172 Ga. App. 379 (2) (323 SE2d 265)); and if such evidence was flight, the jury was authorized to decide whether his failure to remain at the scene was circumstantial evidence of guilt. Boutwell v. State, 256 Ga. 63, 65 (344 SE2d 222).

Where the evidence is viewed in a light favorable, to the verdict reached, we find the evidence sufficient to enable any rational trier of fact to find the existence of the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Error is alleged in the refusal of the trial court “to admit evidence of complainant’s prior marital problems, as it came within one of the exceptions to the Rape Shield Law.” We find no error. Appellant stated that the complainant told him in their conversation prior to them having sex that she and her husband were “having problems; they don’t get to see each other very much, ‘cause he works all day and she works mostly nights.” During the trial, Burley said the complainant told him “her husband and her [were] having bad times. She said they was going through some rough times. She didn’t say exactly what was going on. . . .” Counsel contended that when he questioned the victim about whether she and her husband “ever had any problems,” the trial court erred in refusing to permit him to explore this area as it bore on the issue of consent. The court ruled that counsel could impeach the woman’s testimony but he would not permit him to go into the background of her marital problems—what they were. The victim was asked what was the basis of their “marital problems,” and she said it involved an accusation by her husband that she had an affair with one person. The final ruling by the court was that the victim could be cross-examined about what happened that day, what she said that day, and she could be impeached by prior inconsistent statements, but he would not permit counsel to “go back into her marital history on cross-examination.”

The rape shield statute, OCGA § 24-2-3, prohibits evidence of past sexual behavior of the complaining witness, either on direct or cross-examination, except as permitted by the statute. Prior sexual behavior proscribed includes “evidence of the complaining witness’s marital history.” However, past sexual behavior of the complaining witness is admissible only if the accused is directly involved or such evidence “supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of. ...” Id. (b).

The trial court did not err in refusing to admit this evidence when the appellant testified that the complainant told him “[s]he didn’t say exactly what was going on. . . .” “Marital problems” can be either one of several types—economic, personality conflicts, incompatibility, jealousy, sexual, or just plain ornery. In this particular instance, it was infidelity. But, appellant admitted that the victim did not tell him which type it was. Hence, his lack of knowledge that the victim’s marital problems related to infidelity could have had no reasonable bearing on whether the victim would consent to the conduct complained of. This enumeration is without merit.

3. It is contended that appellant’s statement was given “with hope of benefit and was therefore coerced and involuntary.” Appellant’s attack is two-pronged: (a) he claims the officer told him if he would make a statement he would make a “recommendation to the DA that a bond would be set for me, and he said he guaranteed me a bond if I made a statement, and I agreed to it,” and (b) the trial court suppressed a portion of the statement, and if hope of benefit pertained to a portion of the statement, the court should have suppressed the entire statement.

(a) The officer involved denied making any promise to appellant regarding bond and said there was no discussion of his wanting a bond prior to him giving his statement. But, that after the interview when Burley was waiting to have a warrant served on him, he asked about a bond, and the officer told him he would be opposed to a bond. On appeal, where the evidence is in conflict, the trial court’s findings as to factual determinations and credibility will be upheld unless clearly erroneous. Short v. State, 256 Ga. 165, 167 (3) (345 SE2d 340). Such findings are not clearly erroneous. See Green v. State, 154 Ga. App. 295, 296 (267 SE2d 898); see Cooper v. State, 256 Ga. 234, 235 (347 SE2d 553), construing “ ‘slightest hope of benefit’ as meaning the hope of a lighter sentence.”

(b) The taped interview of appellant by the investigating officer shows a Miranda warning was given prior to starting the interview. Burley related his version of the entire event; then the investigator told him, in essence, they had other evidence beside the statement of the victim and “what you’ve said is not entirely true, and you know that.” Thereafter the investigator told Burley, “give me a reason . . . to help you. . . . Tell me the truth.” The investigator also said: “I think you — I think you made a mistake ... if you want me to work with you on this and help you get through this without too much damage, you need to recall your facts a little bit. . . The trial court excluded everything said after this statement by the investigator. It is unnecessary for this court to rule upon the question of whether such statement by appellant that followed this colloquy was inadmissible. It is necessary only for us to conclude that even if such verbiage is considered to be improper as holding out “hope of benefit” (OCGA § 24-3-50), it could not relate back to influence anything said by appellant prior to that time. We have found no error.

Decided January 5, 1989

Rehearing denied January 30, 1989.

Linda B. Borsky, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

4. The trial court did not err in refusing to strike a juror who was a medical doctor and had worked with rape victims and whose wife was a counselor for rape victims, when he was questioned at length by the trial court and stated that “he could listen to the evidence of both sides and render a fair and impartial decision in spite of the feelings he had. . . .” Whether to strike a juror for cause lies within the sound discretion of the trial court. Godfrey v. Francis, 251 Ga. 652, 662 (308 SE2d 806); Patterson v. State, 239 Ga. 409, 411 (238 SE2d 2). Although the voir dire was not transcribed, it is clear from the recollection of the court and counsel that the doctor’s bias extended only to the offense itself, not the offender, and the juror had no firm or fixed opinion as to the guilt of this accused. See Jordan v. State, 247 Ga. 328, 337 (276 SE2d 224). Where the otherwise qualified juror indicates he can and will fairly evaluate the evidence, there is no abuse of discretion by the trial court in failing to strike the juror for cause. Foster v. State, 248 Ga. 409, 411 (283 SE2d 873); Strong v. State, 161 Ga. App. 606, 607-608 (288 SE2d 921).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77403.
    TAYLOR v. THE STATE.
    (378 SE2d 335)
   Birdsong, Judge.

Appellant Gregory Alan Taylor was found guilty of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1). He enumerates as error on appeal the trial judge’s refusal to instruct the jury as to accident and misfortune. OCGA § 16-2-2. The trial court did instruct the jury it might acquit Taylor if his intoxication was found to be involuntary.

For purposes of this appeal we shall accept and rely upon the appellant’s statement of facts in brief: Appellant Taylor is a civil engineer employed by Georgia Power Company. On Saturday, July 18, 1987, Taylor was to oversee the inspection of paint applied on the interior of three new oil storage tanks in Forest Park. The tanks are cylindrical, measuring 55 feet high and 18 feet in diameter. Each tank has only two small openings: one at the bottom of the tank and one at the top. The tanks had been painted during the two preceding days. The painters had worn complete protective suits, including closed helmets with attached hose through which fresh air was continuously pumped.

In all, Taylor spent approximately six hours in the tanks. At no time did he wear a protective mask or helmet. At no time during those six hours did he realize that he was inhaling alcohol and xylene, though he did notice the presence of fumes in the tanks and felt a headache developing. Taylor left work around 4:30 p.m. He drove directly to the home of friends in Marietta. He and three friends then drove to a package store and purchased two twelve-packs of light beer. Taylor and a male friend drank from one twelve-pack, while Taylor’s date shared the remaining twelve-pack with a female companion. The four drank as they traveled to Athens, Georgia, to attend a party. Around 7:30 or 7:45 p.m., the group stopped at a restaurant, where Taylor had two more beers. Around 9:30 p.m., they drove to a friend’s home in Athens. Appellant consumed one more beer. He and the other man slept for about one and one-half hours; when Taylor awoke, his date asked him to accompany her to a doughnut shop. She persuaded Taylor to drive, for she was not feeling well. This was the first time Taylor had driven all evening.

A police officer came to the doughnut shop in response to calls regarding a woman “passed out” in the vehicle. Taylor’s date, Ms. Rogers, testified that she was only sleeping because she did not feel well. The police officer, based solely on the smell of alcohol about Taylor and his date, advised both to refrain from driving the vehicle for a period of time. No time limit was set by the officer. The officer advised fellow police officers by radio, to be on the lookout (B.O.L.O.) for appellant’s vehicle. Taylor and Ms. Rogers waited up to an hour, which they felt sufficient to comply with the officer’s request and to allow any effects from the alcohol to wear off. Within a mile of driving down the road they were stopped on the basis of the B.O.L.O. Taylor was arrested after being administered field sobriety tests. He was transported to police headquarters. A blood alcohol test, utilizing the Intoximeter 3000, was administered; Taylor’s blood alcohol level registered .13 percent by weight.

At trial, the manufacturer’s specifications for the epoxy used to paint the tanks were admitted into evidence. Dr. Thomas Lance, an expert in the industrial chemistry field, testified as to the chemical composition of the paint involved; the process of drying and evaporation of the paint; the presence of fumes in the tanks; the absorption of alcohol and xylene fumes through the lungs by a person working in such an environment; the maximum allowable concentration of alcohol in the air in a work environment, as defined by OSHA; and as to the probable concentration of alcohol in the air in these tanks two days after being painted.

The expert testified that xylene, an aromatic solvent present in the paint, evaporates and is absorbed into the body like alcohol fumes. The fact that both alcohol and xylene have strong absorptions at 3.39 microns, and that this wave length is the one which the Intoximeter 3000 tests for, points to the possibility that xylene fumes present in appellant’s blood could have registered as alcohol.

The expert calculated that the concentration of alcohol in the air trapped in the tanks, as a result of evaporation over a period of two days as the paint dried, would be approximately 59,000 milligrams per cubic meter, versus the OSHA standard maximum of 1,900 milligrams per cubic meter. In Dr. Lance’s opinion, appellant would have absorbed a significant amount of alcohol into his system and any ventilation in the absence of positive pressure from a fan would not be significant.

Thus, appellant concluded the concentration of alcohol in the tanks was substantially higher than the OSHA limits. Appellant’s absorption of this combined with the alcohol from seven beers consumed over five to six hours to raise his blood alcohol level above the legal limit. In other words, when appellant began to consume seven beers over five to six hours, his blood alcohol content was not zero, but, unknown to him, was already elevated. Held:

Appellant cites Sapp v. State, 179 Ga. App. 614 (347 SE2d 354) and Taylor v. State, 164 Ga. App. 660 (297 SE2d 755) to prove the charge of accident or misfortune was required in this case. The charge was perhaps authorized in this case, but the failure to give it was not error which will reverse the verdict of the jury.

We have examined this matter from every angle. We fail to see, however, how the jury could have found his intoxication at the time of his arrest to be the result of accident or misfortune, when under proper charge it found his intoxication to be not involuntary.

The bottom question is whether a person, though not acting involuntarily, might still be acting from accident or misfortune. Obviously, he may. But in the peculiar case of a conviction for intoxication by alcohol, the jury’s finding that appellant was not under the influence of involuntary intoxication is a finding that he was under the influence of voluntary intoxication. Accepting this as fact, there can be no logical conclusion that his voluntary intoxication was the result of accident or misfortune as defined by OCGA § 16-2-2.

Decided January 11, 1989

Rehearing denied January 30, 1989

John W. Timmons, Jr., for appellant.

Ken Stula, Solicitor, for appellee.

We see no other way to view the situation. If it be suggested that while his ouer-intoxication was voluntary, its unsuspected genesis was accidental, nevertheless, it was not this accidental intoxication arising from the inhalation of paint fumes earlier in the day, which the jury viewed and found to be the voluntary criminal act: driving under the (voluntary) influence of alcohol. The evidence of the alcohol appellant voluntarily ingested after any he may have accidentally inhaled was evidently deemed by the jury to be a crime.

The evidence was sufficient to enable a rational juror to find appellant guilty of driving under the influence of alcohol beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    77476.
    GANN v. THE STATE.
    (378 SE2d 369)
   Beasley, Judge.

Gann appeals his conviction and sentence for burglary, OCGA § 16-7-1.

The evidence construed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following: Between 4:50 and 5:05 p.m. on the day of the burglary, the victim, whose father had died that morning, gave his neighbor Harris a ride. The victim then went to his mother’s house and while there could not recall whether he had secured his house and machine shop before leaving. Consequently, at approximately 9:00 p.m., he took a friend with him and checked the locks. He noticed nothing out of the ordinary.

While checking his machine shop, the victim noticed Harris standing outside and another man standing at the corner of his house. Harris asked to borrow a tool. The victim found the tool and then left with his friend. As they were leaving, they saw Harris and the other man walking in the direction of Harris’ house.

Earlier that day, five men including appellant gathered at Harris’ home and stayed for quite some time. After Harris determined that no one was home at the victim’s residence, one of the men suggested that the group break in. Harris and appellant and two of the men went across the street in the direction of the victim’s house. Of the remaining two men, one stayed at Harris’ house and was later to watch for the victim’s two large dogs. One stayed in the woods as a lookout. The four ransacked and burglarized the victim’s home and his two work buildings. The lookout observed appellant, Harris, and a third man coming from the victim’s house carrying rifles, a VCR, and pillow cases full of something. A dropped microwave was left along the route the men took through the woods.

The stolen property, along with some of Harris’ personal possessions, was loaded onto the back of one man’s truck. The five men along with Harris’ wife and mother-in-law rode in the truck to appellant’s trailer. It had been decided earlier in the day that Harris and his family could move in with appellant.

Between 10:30 and 11:00 p.m., the victim returned home with his wife and son to find everything in the house damaged or gone. The missing items included a VCR, microwave oven, antique dolls, jewelry, jewelry boxes, a coin box and telephones. The victim’s shops had also been burglarized with only a few items left and the safe cut open. What remained had been piled up as though to be carried away. The safe had been opened with a cutting torch. Rings, silver, a gun collection, and $17,270 in cash were taken.

Investigating officers found the Harris home vacant and dark save for illumination from an electric stove which had been left on. Later, the victim and a friend found a path in the woods leading to the Harris home. A search of the house uncovered the victim’s VCR. The next morning, the victim’s microwave was found in the woods.

Harris and appellant were tried together and convicted of the burglary.

1. Appellant contends that the trial court erroneously admitted a police incident report into evidence and allowed a testifying officer to read hearsay statements to the jury from the report.

He maintains that the time of the burglary was a critical element of the case, that the State sought to prove that the burglary occurred earlier than approximately 11:00 p.m. when the victim testified he returned home, which time was consistent with his defense, and that to set the burglary at an earlier time the State sought admission of the incident report which contained a range of between 9:30 and 10:30 p.m. for entry of the burglarized premises to have occurred. Appellant agrees that certain types of police records may be admissible under the business records exception to the hearsay prohibition, see OCGA § 24-3-14, but that the report at issue was inadmissible because the times given in it were in a narrative statement at the bottom of the form, the source of which statement was unidentified.

“Proof of facts by a document or a duly authenticated copy thereof is not objectionable as violative of the right of confrontation. [Cits.]” Hill v. State, 162 Ga. App. 637, 638 (2) (292 SE2d 512) (1982). “A police report may be admissible as a business entry [OCGA § 24-3-14 (b)] where a proper foundation is laid, but when it includes hearsay statements, opinion evidence, and conclusions, it is not generally admissible. [Cits.]” Pickett v. State, 123 Ga. App. 1, 2 (2) (179 SE2d 303) (1970). See also Benson v. State, 150 Ga. App. 569, 570 (2) (258 SE2d 156) (1979), Appellant does not complain about the foundation for the report but solely about the alleged hearsay statement.

The police captain who identified and laid the foundation for the report testified that the information could have come from the victim and from the observation of the scene by the investigating detective, who was also the reporting officer. So it is true that the source of the information was unknown and inadmissible hearsay. OCGA § 24-3-1. However, the victim’s testimony regarding the time of the crime viewed in its totality did not conflict with the time frame in the report. Rather, the report echoed the time span described by the victim.

But even if we deem the evidence of time in the report as cumulative, this does not end the inquiry. “The fact that inadmissible evidence to which objection is interposed at trial is cumulative of other competent, admissible evidence is a factor to be considered on appellate review in determining whether the admission thereof is reversible error. [Cit.] Cumulativeness, however, is not an exception to the hearsay rule. . . .” Parker v. State, 162 Ga. App. 271, 273 (5) (290 SE2d 518) (1982). The question then becomes whether or not the defendant was harmed by the inadmissible hearsay, i.e., whether or not it was highly probable that the statement of time in the report contributed to the judgment of guilt. Id. at 275 (5); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Defendant completely denied entry of the victim’s home or work premises and participation in the burglary in any manner. His alibi was that he and the others in the truck arrived at the Harrises around 4:30 or 5:00 p.m. to check on Harris and his pregnant wife because the Harrises’ living conditions were so bad. Defendant unsuccessfully worked on the Harrises’ water pump. He invited Harris and his wife to stay with him and his wife in his trailer. Harris and the others loaded some of Harris’ possessions into Powell’s truck. Defendant paid no attention to what was being loaded on the truck as he was watching television. After the truck was loaded, the group went to defendant’s trailer, arriving about 7:30 or 8:30 p.m. The truck was unloaded and the property put in a storage room. He did not go back to the Harrises that evening.

Therefore, the statement contained in the report, that someone entered the residence between 9:30 and 10:30 p.m. did not conflict with the defense or otherwise prejudice defendant. If anything, it tended to exculpate him. If the jury believed he was home by 7:30 or 8:30 p.m., he could not have participated in the burglary which occurred between 9:30 and 10:30 p.m. as estimated in the police report. It thus provides no basis for reversal. See Miles v. State, 254 Ga. 266, 267 (3) (328 SE2d 535) (1985); McCarty v. State, 157 Ga. App. 336, 337 (3) (277 SE2d 259) (1981).

2. Appellant contends that the trial court erred in refusing to give his request to charge based on OCGA § 16-2-2, that one is not guilty of a crime if the act is committed by misfortune or accident.

Refusal to instruct on this principle was not error. The defense was that Gann did not participate in any manner in the burglary, accidentally, mistakenly, or otherwise. Therefore, such a charge was not supported by the evidence and potentially would have injected a defense theory not raised. See Sampson v. State, 165 Ga. App. 833, 834 (4) (303 SE2d 77) (1983).

3. The final question is whether the trial court erred in refusing to furnish Gann, an indigent, with a copy of the transcript of his first trial, which ended in a mistrial due to inability of the jury to reach a verdict. He also cites error in the court’s refusing to continue the case until the transcript could be obtained, and in continuing to refuse to furnish that transcript for inclusion as part of the record on appeal.

He claims that the lack of a transcript severely hampered him in cross-examination and attempted impeachment of the State’s witnesses. Appellant raises the circumstance of his indigency and is correct in observing that “[a]n indigent defendant should not be denied justice because he cannot afford to pay the costs of preparing a transcript which another defendant could pay for himself.” See Britt v. North Carolina, 404 U. S. 226 (92 SC 431, 30 LE2d 400) (1971). However, he does not claim that he would have received different treatment if he had not been indigent and does not raise an equal protection challenge under either the federal or state constitution.

He relies upon the authority of Carter v. State, 156 Ga. App. 633, 634 (5) (275 SE2d 716) (1980), and Coaxum v. State, 146 Ga. App. 370, 371 (4) (246 SE2d 403) (1978). The immediate question then is whether he showed that the transcript was “needed for an effective defense” in the second trial, Britt at 227, or, in words quoted in Wise v. Skinner, 244 Ga. 225 (259 SE2d 475) (1979), “ ‘some justification or showing of necessity beyond a mere naked demand for a transcript.’ ”

At the hearing soon after the mistrial, defendant sought a transcript of the testimony of all the witnesses. The reason he gave was that “there is going to be some material discrepancies between the testimony and (sic) the witnesses. And we want to impeach them. . . .” Nothing further was advanced and there was no amplification.

The court denied the motion, having expressly considered the recentness of the first trial, its average length, the lack of any real complexity and the fact that all of the witnesses were interviewed by defendants as well as by the State. A transcript is not always necessary, even for the purposes stated by defendant, as the same may be accomplished by less costly and delaying means. See Britt, supra; Powers v. State, 163 Ga. App. 770 (2) (294 SE2d 555) (1982); Walker v. State, 156 Ga. App. 478, 480 (2) (274 SE2d 680) (1980).

OCGA § 17-8-5 (b) provides that in the event of a mistrial of a felony, ordering that a transcript of the testimony be filed with the clerk of court is a matter of discretion of the judge. This differs from OCGA § 5-6-41 (a), which requires that the transcript in felony cases “shall” be reported and prepared pursuant to OCGA § 17-8-5 or as otherwise provided by law. Subsection (j) states that “[i]n all cases, civil or criminal, any party may as a matter of right have the case reported at his own expense.”

We assume, but do not decide, that defendant on the general basis which he gave was entitled to the transcript so that providing it was not subject to discretion. That is, that defendant justified the request and sufficiently established the need. See Coaxum, supra, which, although it did not involve OCGA § 17-8-5 (b) and the transcript of a mistried case, indicates that maintaining that the transcript of a co-defendant’s trial was essential for purposes of impeaching the testimony of victims was sufficient to require a continuance. The record in Carter, supra at 634 (5), shows that it involved the transcript of an earlier trial on other offenses. It appears that the necessity was adequately established by stating that it was for purposes of cross-examination and impeachment of witnesses, some of whom were expected to testify at the second trial. The showing of need or justification was pivotal in Chance v. State, 172 Ga. App. 299, 303 (7) (322 SE2d 741) (1984), which did involve a mistrial transcript. The need expressed in Martin v. State, 151 Ga. App. 9, 15 (7) (258 SE2d 711) (1979) is the same as the one advanced by defendant.

The question then is, was he harmed or was he able to accomplish in some other way what he wished to accomplish with the transcript.

Appellant argues that he needed the mistrial transcript first of all to point out discrepancies in the victim’s testimony. But we do not see how harm resulted because review of the trial, which occurred the next week, shows that the defense was aware of and questioned the victim about such discrepancies and that the victim admitted them and then went on to explain them. So the transcript as a tool for impeachment was unnecessary in this instance, since the witness in effect agreed that the inconsistency in his testimony would have been proven by the transcript.

According to his brief on appeal, defendant also wanted the transcript for the purpose of impeaching Carl Jones, Margaret Tosh, Darlene Jones, and Cecil Jones. The men were involved in the burglary. Tosh, who was Harris’ mother-in-law and Gann’s sister-in-law, was at the Harris house. Darlene Jones, Carl’s wife, was at Gann’s trailer the entire day. Defendant did elicit from Carl Jones an admission that he made a prior inconsistent statement “at one time,” but it was not asked whether this was prior testimony or under oath or when. At any rate, if it occurred in the first trial, the transcript would not have proved more than Carl Jones admitted.

Decided January 30, 1989.

Bennett & Hamilton, Hubert E. Hamilton III, for appellant.

David L. Lomenick, Jr., District Attorney, for appellee.

As to Cecil Jones, defendant elicited an admission that he had lied during his guilty plea proceeding. Thus the mistrial transcript was irrelevant. As to Margaret Tosh, he contends that she did not see Gann go into the victim’s house or come back with anything or even go across the road. She admitted these facts. Appellant does not contend that she testified otherwise in the mistrial. As to Darlene Jones, appellant asserts that he wanted to show a bias because Carl was her husband. He did so, by his cross-examination.

Appellant fails to point to any material testimony, even in a general way, which could have been impeached by use of the mistrial transcript. Nor does he point to any other unmet need which would have been fulfilled by the transcript. At no time during the trial, except as stated above, did he suggest that prior testimony was different or that he needed the mistrial transcript because of what was stated at the trial in progress.

Where no harm is shown, there is no reversible error. See, e.g., Lane v. State, 247 Ga. 19 (2) (273 SE2d 397) (1981); Stowers v. State, 143 Ga. App. 859, 860 (1) (240 SE2d 227) (1977).

Having so ruled, the errors enumerated regarding denial of the motion for a continuance for preparation of the transcript and the denial of that transcript for the purpose of this appeal are moot.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    77577.
    KNIGHT v. THE STATE.
    (378 SE2d 373)
   Banke, Presiding Judge.

The appellant was sentenced to consecutive prison terms for armed robbery, burglary, rape, aggravated battery, and aggravated assault. On appeal, he contends that the evidence did not authorize the armed robbery conviction and that the aggravated battery and aggravated assault convictions should have been merged because those offenses were established by the same conduct. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of armed robbery. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The aggravated assault count of the indictment alleged that the appellant had assaulted the victim with a knife. See generally OCGA § 16-5-21 (a) (2). The aggravated battery count alleged that he had caused bodily harm to the victim “by seriously disfiguring her body by causing scars to her neck. . . .” See generally OCGA § 16-5-24 (a). If these counts were based on the “same conduct,” it is clear that the aggravated assault would be included in the aggravated battery. See OCGA § 16-1-7. See also OCGA § 16-1-6; State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475) (1974). However, the evidence showed that the appellant stabbed the victim with the knife “a dozen or so” times, transecting her larynx and esophagus and causing extensive scarring of her throat and breast. “Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. (Cits.)” Jones v. State, 161 Ga. App. 620, 622 (288 SE2d 795) (1982). Thus, the evidence in this case does not demonstrate that the aggravated assault and the aggravated battery were based on the “same conduct” within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand. Accord Talley v. State, 164 Ga. App. 150, 153 (7) (296 SE2d 173) (1982), aff’d 251 Ga. 42 (302 SE2d 355) (1983). Compare McClure v. State, 179 Ga. App. 245 (2) (345 SE2d 922) (1986).

Judgment affirmed.

Birdsong, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in Division 1 but concur in the judgment only, with respect to Division 2.

I find no case where multiple stab wounds, inflicted sequentially and without interruption, constitute separate crimes. However, considering the indictment, the proof, and the verdict in this case, what we have is that one series of stabbings, unbroken by any other act of defendant, is regarded as two acts, one being the initial assault or all of the assaults which did not result in scarring to the neck, and the other being the several stabbings resulting in scars to the neck.

Although I have a hard time viewing these multiple stabs as two separate and independent crimes, I concede that it is analytically possible and so concur in the judgment. I do not believe, however, that we should open the door to multiple counts for each stab, which I read the opinion as doing.

Decided January 30, 1989.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

This case is close to, but differs from, Mills v. State, 187 Ga. App. 79, 80 (4) (369 SE2d 283) (1988), where “[t]he facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the aggravated battery charge, as it was set forth in the indictment, ...” The indictment against Knight alleged different facts as to each count. Likewise in Mitchell v. State, 187 Ga. App. 40, 44 (369 SE2d 487) (1988), where both charges referred to the same ultimately proved facts. In Mathis v. State, 184 Ga. App. 455, 457 (7) (361 SE2d 856) (1987), it was the “language of the indictment . . .” which governed the outcome. Unlike the Knight indictment, one count in Mathis was “plainly sufficient to include [both offenses].” The wording of the indictment is not set out in Moreland v. State, 183 Ga. App. 113, 114 (1) (358 SE2d 276) (1987), although the Court held that a merger occurred. This results when, unlike here, what is alleged in one count, matched with what is proved, covers both counts.


author: Sognier, Judge.

text:
    77698.
    RABEY ELECTRIC COMPANY, INC. v. HOUSING AUTHORITY OF SAVANNAH.
    (378 SE2d 169)
   Sognier, Judge.

Rabey Electric Company, Inc., brought suit against the Housing Authority of Savannah to recover the difference between the price set for work performed by Rabey pursuant to a contract between the parties for the electrical modernization of certain public housing projects and the payment actually made to Rabey by the Housing Authority, which penalized Rabey for failing to complete the work on time and for using materials which did not conform to contract specifications. Ruling on the Housing Authority’s motion for directed verdict was reserved by the trial court, and after the jury returned a verdict in favor of Rabey, the trial court granted the Housing Authority’s motion, setting aside the jury’s verdict. Rabey appeals.

The record reveals that the contract contained a provision which required, inter alia, that appellee’s contracting officer be notified in writing of all disputes within ten days of their commencement, and that if the contractor has properly given that notice and properly excepted any decision of the contracting officer with which it disagrees from the final release, it must bring suit “within 120 days after receipt of final payment under this contract or within six months of a written request by the [Housing Authority] that he submit a final voucher and release, whichever time is the lesser.” The contract also provided that “the [contractor hereby agrees that his noncompliance with the conditions precedent constitutes a waiver of his right to assert [his] claim.”

Appellant does not claim to have complied with the conditions precedent, but in several enumerations of error contends that the trial court erred by granting appellee’s motion for a directed verdict either because appellee waived its right to insist on the conditions precedent, or because the contract limitations are void.

1. The record does not support appellant’s contention that appellee waived its right to insist on the conditions precedent by not including this defense in the consolidated pretrial order. In fact, the pretrial order states clearly that one issue for determination by the jury is “[w]hether [appellant] waived its right to bring this action by failing to comply with the conditions precedent specified in the contract.” Accordingly, there is no merit in this enumeration.

2. Appellant contends the contractual conditions are unreasonable and therefore void. We do not agree. While the statute of limitation for actions on simple contracts in writing is six years, OCGA § 9-3-24, “[t]he Georgia courts have permitted parties to contract as to a lesser time limit within which an action may be brought so long as ‘ “the period fixed be not so unreasonable as to raise a presumption of imposition or undue advantage in some way.” [Cit.]’ [Cit.] If not reasonable . . . , then it is not permitted regardless of the parties’ freedom to contract. [Cit.]” General Elec. &c. Corp. v. Home Indem. Co., 168 Ga. App. 344, 348 (309 SE2d 152) (1983). Appellant concedes in its brief that Georgia courts have many times upheld much shorter contractual limitation periods. See, e.g., Turner v. Nat. Union Fire Ins. Co., 167 Ga. App. 762 (307 SE2d 290) (1983); Beck v. Ga. Farm &c. Ins. Co., 146 Ga. App. 878 (247 SE2d 548) (1978); Livaditis v. American Cas. Co., 117 Ga. App. 297 (2) (160 SE2d 449) (1968).

Appellant argues that the intermediate time limitations in the contract, such as the requirement of notice to the contracting officer, result in an effective ten-day statute of limitation, which is patently unreasonable. However, appellant expressly directed that no transcript of the trial proceedings be included in the record, and the order of the trial court granting appellee’s motion for a directed verdict recites that it is based on appellant’s failure to file this action within the time prescribed by the contract. Consequently, “[w]e find no evidence in the record that the trial court was asked to consider [the issue of the reasonableness of those prior limitations], and so there is nothing for us to consider. ‘Grounds which may be considered on appeal are limited to those which were urged before the trial court. [Cits.]’ [Cit.]” Chafin v. Wesley Homes, 186 Ga. App. 403, 405 (367 SE2d 236) (1988). The only relevant question of reasonableness presented is that of the contract language which provides that the action itself must be brought either 120 days after final payment, or 6 months after a request to submit a final voucher and release. Bearing in mind the fact that appellant complied with neither alternative limitation on the time for filing suit, and that a contractual limitation period of 6 months was upheld by the Georgia Supreme Court in Brown v. Savannah Mut. Ins. Co., 24 Ga. 97, 101 (2) (1858), we do not find the contractual limitation is “so unreasonable as to raise a presumption of imposition or undue advantage.” General Elec. &c. Corp., supra at 348. Accordingly, the trial court did not err by granting appellee’s motion for a directed verdict on that basis. See generally Dependable Equip. &c. Co. v. Nursecare of Atlanta, 184 Ga. App. 136, 137 (1) (361 SE2d 23) (1987).

Decided January 30, 1989.

John G. Hunter, for appellant.

Malberry Smith, Jr., for appellee.

3. Although appellant also asserts the contractual limitation is void because it is against public policy, the Supreme Court declared in Brown, supra, that “[n]o principle of public policy is violated by a condition in a policy of insurance, that the injured party shall sue within six months from the time of the loss or lose his remedy,” id., and we see no reason why such a limitation should be void as against public policy in this case.

Judgment affirmed.

Car ley, C. J., and Deen, P. J., concur.


text:
    77780.
    MOODY v. THE STATE.
    (378 SE2d 375)
   Sognier, Judge.

Walter Leroy Moody appeals from the order revoking the suspension of his twelve months’ sentence for abandonment of his minor child.

The record reveals that in October 1977, appellant was tried by a jury and convicted of abandonment. He was sentenced to pay court costs and a weekly sum for child support, and to twelve months’ incarceration, which was suspended. Appellant filed an appeal, and this court affirmed. In May 1978, on the same day the remittitur was filed in the trial court, the trial court issued an order and rule nisi requiring appellant to show cause why he should not be required to serve the suspended sentence. A bench warrant was also issued for his arrest. Appellant was never served, however, with that order and rule nisi. Over ten years later, on July 25, 1988, appellant was arrested pursuant to a duplicate warrant charging him with violating the terms of his suspended sentence. A hearing was held in the trial court, and appellant’s suspended sentence was revoked, requiring him to serve the twelve months’ incarceration.

Appellant contends the trial court erred by requiring that appellant serve the suspended sentence, because the time during which the court could require the sentence to be served had expired. We agree and reverse.

OCGA § 42-8-34 (d) (2) provides that “[s]ervice of any sentence suspended in abandonment cases may be ordered by the court having jurisdiction thereof at any time before the child or children reach the age of majority, after a hearing.” (Emphasis supplied.) It is uncontroverted that appellant’s child reached the age of majority on November 9, 1987, some eight months before appellant’s arrest. The statute is clear and unambiguous, and cannot be read to permit the revocation of a suspended sentence after the child or children have reached the age of majority, as was the case here. “ ‘[W]here a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. [Cits.]’ [Cit.] ‘In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.’ [Cits.]” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Following this reasoning, this court has previously held, in Entrekin v. State, 147 Ga. App. 724, 725 (2) (250 SE2d 177) (1978), that the trial court “may thus, at the time of sentencing, specify the amount to be paid by the parent for the support of the minor child and may suspend the service of the sentence pending the minority of the child. When the child reaches majority, the sentence of course is at an end.” (Emphasis supplied.)

Although it is true that statutes of limitation may be tolled during the time an offender conceals himself to avoid arrest, see Dennard v. State, 154 Ga. App. 283, 284 (267 SE2d 886) (1980), we do not agree with the State that the record in this case shows that appellant concealed himself from the court. Rather, the record shows that an address in the Atlanta area was listed for appellant in the incident report which was in the court records. It is undisputed that the incident report was in the probation department file during the entire period from 1978 through 1988. The record reveals that appellant lived at that address for approximately three years after his conviction, and at his next address for approximately five years. Further, the record discloses no effort by the probation department to try to locate appellant so that a hearing could be held, until the receipt of an anonymous “tip” in 1988. Thus, we find no evidence in the record to support a conclusion that appellant concealed himself during the period when the trial court had jurisdiction to act to revoke the suspended sentence.

Because OCGA § 42-8-34 (d) (2) barred the trial court from revoking the suspended sentence in 1988, after appellant’s child reached the age of majority, and we do not find that appellant concealed himself so as to bring about a “tolling” of the statutory limitation, we reverse the trial court’s revocation of appellant’s suspended sentence.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

The evidence at the hearing showed that a rule nisi and a bench warrant were issued on May 16, 1978. Appellant could not be found in Bibb County, and the only address that the probation office had on file was his mother’s Fort Valley, Georgia, address. The clerk of court sent notices to that address by certified mail, return receipt, that he had exhausted his appeals and that he was to comply with the court order. Although the incident report which initiated the abandonment action showed him to be living at a Clairmont Road address in Decatur, there was no evidence as to whether the probation officer knew of this address or had attempted to locate him there. The rules governing his suspended sentence, however, required him to report to the probation office as directed by his probation officer, to report immediately any change in his home address (which they had listéd as being his mother’s home in Fort Valley), to report any change in his place of employment, and to remain in Bibb County unless he was granted permission to leave by the court.

As Moody’s suspended sentence could not be revoked without a hearing, OCGA § 42-8-34 (d) (2), and he was notified that the remittitur had been returned and he was required to comply with the terms of his suspended sentence, he cannot now complain that he should not be required to serve his suspended sentence simply because the child he abandoned has reached the age of majority. Criminal statutes of limitation are tolled if an offender is arrested and then conceals himself before indictment or if he escapes before indictment in order to avoid arrest. See OCGA §§ 17-3-1; 17-3-2; Dennard v. State, 154 Ga. App. 283, 284 (267 SE2d 886) (1980). An analogous situation is presented in the instant case where the defendant had exhausted his appeals and was ordered to present himself to the court to show cause why his suspended sentence should not be revoked, and a warrant for his arrest was issued.

Decided January 30, 1989.

Ford & Ford, Michael C. Ford, for appellant.

Clarence H. Clay, Jr., Solicitor, J. Robert Sikes, Assistant Solicitor, for appellee.

An even stronger analogy may be made to a case in which a prisoner who is serving a sentence escapes from confinement. The time elapsing between the escape and the recapture of the prisoner contributes nothing towards service of the sentence. Theriault v. Peek, 406 F2d 117 (1968); Phillips v. Dutton, 378 F2d 898 (1967). In the instant case, Moody had been convicted of child abandonment and his sentence suspended provided he comply with the conditions imposed by the court. He did not comply, and his suspended sentence was revoked. We do not interpret OCGA § 42-8-34 (d) (2) to mean that a person so convicted may conceal himself during the child’s minority and reappear after the child reaches the age of majority and claim that he cannot be required to serve his time for violating the sentence. Such a flagrant violation of the law mandates that the period during which he conceals himself must result in a tolling of the time when he is required to serve his suspended sentence.

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


author: Banke, Presiding Judge.

text:
    77901.
    MUTUAL INSURANCE COMPANY OF NEW YORK v. DUBLIN PUB, INC.
    (378 SE2d 497)
   Banke, Presiding Judge.

The appellant, Mutual Insurance Company of New York, filed a dispossessory action against the appellee, Dublin Pub, Inc., which the trial court dismissed based on a finding that the appellant had consented to allow the appellee to remain on the premises pursuant to the terms of a settlement agreement. This appeal followed.

The appellee leased the premises in question from Green’s Corner Associates in 1984, pursuant to a ten-year lease agreement. The appellant subsequently became the assignee of the lease and, in February of 1987, brought the present action against the appellee seeking possession of the premises as well as past-due rent in the principal amount of $16,473.63. During the pendency of the action, counsel for both parties entered into settlement discussions which led to an agreement that the amount of past-due rent owed by the appellee, including interest, was $25,947.24. What transpired thereafter is the subject of the present dispute. The appellee’s counsel maintained that the agreed upon sum was tendered by him and accepted by the appellant’s counsel at a meeting held on April 1, 1987, with the understanding that the written settlement agreement which had been prepared by the appellant’s counsel would thereafter be executed by the parties, and the dispossessory proceeding would be dismissed. The agreement was later executed by the appellee and mailed to the appellant’s counsel for the appellant’s signature. Believing that the matter had been settled, the appellee thereupon resumed making lease payments to the appellant. However, some 12 months later, counsel for the appellee received notice that the dispossessory action had not been dismissed and had been placed on a trial calendar. He thereupon filed a “Motion to Require Compliance With Settlement Agreement,” requesting the dismissal of the action.

Counsel for the appellant conceded that the appellee’s counsel had tendered to him the sum of $25,947.24 and that he in turn had submitted to the appellee’s counsel a proposed settlement agreement. However, he maintained that at the time this transaction occurred he advised the appellee’s counsel that his client had neither reviewed the document nor agreed to its terms, that the funds were being accepted merely as a payment of past-due rent owed under the lease, and that the transaction would be considered a final settlement only if his client agreed. Following a hearing on the appellant’s motion, the trial court dismissed the action, concluding as follows: “[T]he [appellee’s] lawyer delivered to [the appellant’s] lawyer the sum of $25,947.24 with the expressed intentions of offering same to settle all issues in this action. . . . The delivery of this sum by the [appellee’s] attorney to [the appellant] along with subsequent acceptance of monthly rental payments paid directly to [the appellant], considered together, amounts to an acceptance of the settlement offer.” Held:

Findings of fact made by the trial court “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52. See also Bell v. Cronic, 248 Ga. 457 (2) (283 SE2d 476) (1981). The findings of the trial court in this case were amply authorized by the evidence, with the result that the court did not err in dismissing the dispossessory action.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.

Decided January 30, 1989.

Alston & Bird, Bernard Taylor, for appellant.

Michael J. Reily, for appellee.


text:
    A89A0076.
    WATSON v. THE STATE.
    (378 SE2d 378)
   Banke, Presiding Judge.

Watson filed this appeal from the denial of his motion for new trial following his conviction of possessing cocaine in violation of the Georgia Controlled Substances Act.

The Douglasville police chief observed an automobile which was occupied by the appellant and two passengers and became suspicious for the stated reasons that all three occupants appeared unkempt, one of the passengers was pointing in the direction of a pharmacy, and the vehicle was registered in a different county. The vehicle proceeded to the pharmacy, where one of the passengers alighted while the appellant and the other passenger waited inside the car at the curb. Suspecting that the three might be involved in “prescription forgeries,” the chief decided to question the occupants and radioed for assistance. The passenger returned to the car, whereupon the appellant began to drive away but was stopped shortly thereafter by the chief. The appellant exited the car and at the officer’s request produced a driver’s license, but was unable to provide proof of insurance. He explained that he had borrowed the car from his ex-wife and had been “living” in it during the previous four or five days. The appellant thereupon consented to a search of the vehicle. This search resulted in the seizure of a syringe, some razor blades and a bottle of manitol (a substance used to “cut” cocaine) from the back seat. The keys were then removed from the ignition, and the trunk was unlocked and searched. This search resulted in the seizure of a green box containing a set of scales, some razor blades and some cocaine residue from among items of clothing which were shown to belong to the appellant. Held:

1. The appellant contends that the stop of the vehicle was not supported by probable cause and that the trial court consequently erred in admitting the fruits of the search. Pretermitting whether the stop of the vehicle was lawful, the appellant may not now challenge the admissibility of the contraband since it was received in evidence without any objection on his part, either prior to or during the trial. See generally Smith v. State, 186 Ga. App. 303 (5) (367 SE2d 573) (1988).

2. The appellant asserts that the evidence was insufficient to establish that the contraband was in his possession because it was shown that the car was not his and that other people had access to the trunk. We disagree. Absent any evidence to the contrary, the fact that the appellant was in possession of the vehicle at the time it was stopped would be sufficient in and of itself to support an inference that he was in possession of its contents. Accord Breedlove v. State, 189 Ga. App. 527 (376 SE2d 222) (1988); Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985).

Decided January 30, 1989.

Alden W. Snead, for appellant.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

The jury received a full and correct charge on the issue of equal access. Although there was evidence that others might have had access to the car keys, it was shown that the appellant had been in exclusive possession of the vehicle during the four days prior to the seizure and that he was merely providing transportation for the other occupants. Moreover, the contraband in question was seized from a locked trunk and was found among the appellant’s personal belongings. “The totality of the evidence was sufficient to connect the defendant to the possession of the drugs . . . even though the evidence would have authorized a finding that others had equal access to the drugs. [Cits.]” Pamplin v. State, 164 Ga. App. 610, 611 (1) (298 SE2d 622) (1982).

Judgment affirmed.

Sognier and Pope, JJ., concur.