author: Beasley, Judge.

text:
    74377.
    GUINN v. CONWOOD CORPORATION et al.
    (363 SE2d 271)
   Beasley, Judge.

Workers’ compensation. The following facts were stipulated: in 1977, Guinn, a Georgia resident, heard of a sales job with Conwood Corporation, a Tennessee tobacco distribution company with headquarters in Memphis, Tennessee. He went to Tennessee in mid-September and again in October to discuss it and obtained the job, which was for work both within and without Georgia. He reported to Dalton, Georgia for training and began work. While working in Bradley County, Tennessee, in December 1984, Guinn suffered an accidental injury over which he claims that Georgia as well as Tennessee has workers’ compensation jurisdiction; he has received some compensation under Tennessee law. Commerce Industry Insurance Company is the insurance carrier for Conwood in Georgia, and Conwood is self-insured in Tennessee. The ALJ, the board, and the superior court all denied Georgia-based coverage.

Claimant enumerates four errors which deal with two areas, i.e., whether the contract of employment was made in Tennessee or Georgia, and whether OCGA § 34-9-242 applies.

1. “A finding of fact made by the full Board when supported by any evidence, is conclusive and binding upon the superior court as well as this court.” Subsequent Injury Trust Fund v. Harbin Homes, 182 Ga. App. 316, 318 (355 SE2d 702) (1987). The ALJ, whose opinion was adopted by the board and affirmed by the superior court, found that claimant twice travelled to Tennessee for interviews and was hired there. Despite claimant’s testimony that he was notified he was hired during a telephone call received at his Georgia home, the ALJ found that the contract was not made until his second visit to Tennessee. The record supports these findings.

Claimant contends that, since the contract was an oral employment contract for an indefinite term, it is void under the statute of frauds and did not become viable until he reported to work in Dalton. Under OCGA § 34-7-1, an oral contract of employment for an indefinite period is terminable at will. This does not mean that at the point at which agreement is reached to hire a person at a stated periodic wage there is not a contract which is “made” at the time and place of agreement. “An executory contract of service for no fixed period of time is obviously too indefinite to be capable of enforcement; and it is only by a fiction that the courts are enabled to hold that an engagement at a fixed salary per month, but with no stipulation as to its duration, is a legally binding contract for one month’s employment at the agreed wage. . . .” Odom v. Bush, 125 Ga. 184, 189 (2) (53 SE 1013) (1906), cited in Floyd v. Lamar &c. Chevrolet, 159 Ga. App. 756, 757 (285 SE2d 218) (1981). The case relied on by claimant with regard to the statute of frauds, Sams v. Duncan & Copeland, 153 Ga. App. 765 (266 SE2d 546) (1980), was disapproved in Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (315 SE2d 51) (1984) which stated that “an oral employment contract terminable at will is not inhibited by the Statute of Frauds.”

2. This conclusion does not, however, resolve the issue of jurisdiction as concluded by the previous judicatories. All relied on OCGA § 34-9-242 (former Code § 114-411), which provides: “In the event an accident occurs while the employee is employed elsewhere than in this state, which accident would entitle him or his dependents to compensation if it had occurred in this state, the employee . . . shall be entitled to compensation if the contract of employment was made in this state and if the employer’s place of business or the residence of the employee is in this state unless the contract of employment was expressly for service exclusively outside of this state. If an employee shall receive compensation or damages under the laws of any other state, nothing contained in this Code section shall be construed so as to permit a total compensation for the same injury greater than is provided for in this chapter.”

The premise below appears to have been that any time an injury occurs outside of this state, the requirements of this section must be complied with or coverage of the injury is denied regardless of other considerations. The Georgia Workers’ Compensation Act is not this restrictive. What is crucial is the construction of the first clause, “employed elsewhere than in this state.”

This section has remained intact since the original enactment of the Georgia Workers’ Compensation Act. Ga. Laws 1920, p. 167. The Act provided that an employee or an employer could opt out of coverage by filing a written notice of this election. Code Ann. § 114-201. This provision for choice was repealed in 1972, making all Georgia employees and employers subject to the Act with certain exclusions not here relevant. Ga. Laws 1972, pp. 929, 931, § 7; Fox v. Stanish, 150 Ga. App. 537 (1) (258 SE2d 190) (1979), overruled on other grounds, Samuel v. Baitcher, 247 Ga. 71 (274 SE2d 327) (1981).

Claimant relies on Slaten v. Travelers Ins. Co., 197 Ga. 1 (28 SE2d 280) (1943) and Martin v. Bituminous Cas. Corp., 215 Ga. 476 (111 SE2d 53) (1959) for his contention that because he worked out of his home in Georgia and his injury occurred during a work-related Tennessee trip, he is covered.

In Slaten, this Court certified the following question to the Supreme Court: Is it essential to the right of a claimant to recover compensation for an injury resulting from an accident which happens while the employee is employed elsewhere than in this state that the contract of employment must be made within this state, where at the time of the accident the employee’s residence was in this state? In responding, the Court analyzed at length the interplay between former Code Ann. § 114-110 (now OCGA § 34-9-7), section 114-201 (the repealed opt out section allowing declination of coverage by employees and employers), and section 114-411 (now OCGA § 34-9-242). It summarized as follows: “As to those employees who have accepted the terms of our statute by the method prescribed in the Code § 114-201, [“opt out section”] the provisions of [OCGA § 34-9-242] have no application, and the execution of a contract of employment within this State is not necessary to entitle them to receive compensation for injuries sustained outside of the State; but as to employees who have agreed to be bound by the compensation law by the method prescribed in the Code, [OCGA § 34-9-7, signing a contract within this state], and who have not engaged in any work within this State, it is essential that the contract of employment be executed within this State, in order that such employees may receive compensation for injuries sustained while employed outside the State.” Slaten v. Travelers Ins. Co., supra at 9.

Upon Slaten’s case being further considered by this Court, it was found that the employee was injured in Tennessee in connection with a Tennessee construction job which was not connected with a Georgia job he was also working on for the employer, and his contract had been entered into in Florida. Under these circumstances, the Court applied OCGA § 34-9-242 because it was held that the Tennessee and Georgia jobs were severable, and the Tennessee injury did not arise out of the Georgia employment. Slaten v. Travelers Ins. Co., 70 Ga. App. 665 (29 SE2d 98), cert. dismissed with opinion, 197 Ga. 856. See also Murphey v. American Mut. &c. Ins. Co., 70 Ga. App. 598 (28 SE2d 876) (1944).

Thus, Georgia is in the majority of states which recognizes that an employee has a choice of filing for compensation for injury and that there can be jurisdiction in one of three places: (1) where the injury occurred, (2) where the employment was principally located, (3) or where the contract of employment was entered. Larson, Workmen’s Compensation Law, Vol. 4 §§ 87.00 — 87.12; 87.40; Hilkey, “Actions For Wrongful Death in Georgia,” 21 Ga. Bar Journal pp. 339, 354-356 (1958).

Conwood and its insurer argue that because of the repeal in 1972 of the opt-out provision (former Code Ann. § 114-201), the rationale of Slaten is no longer appropriate. This does not follow from Georgia’s present statutory scheme. The very definitions of “employer” and “employee” contained in OCGA § 34-9-1 (2) & (3) provide that where the employment relation is present in Georgia and the employer has the requisite number of employees, OCGA § 34-9-2 (a), the act is operative. See Martin v. Bituminous Cas. Corp., 215 Ga. 476, 478, supra. The repeal of Code § 114-201 did not narrow the coverage of the act but broadened it, making all employees who work in Georgia now covered with no action on their part other than working in this state or signing a contract of employment in this state regardless of their place of employment (OCGA § 34-9-7).

Applicable to this case is the whole court case of Fidelity & Cas. Co. v. Swain, 90 Ga. App. 615 (83 SE2d 345) (1954). There, the employee worked for a Michigan company. His contract was entered into in Michigan and he was assigned to the southeastern region and worked out of his home in Decatur, Georgia. He was in Mobile, Alabama when he died. Workers’ compensation jurisdiction was found in Georgia, the Court stating: “[i]n the present case, . . . the employee was a field representative for a group of southeastern States, for all of which he kept his office and headquarters in his home in Decatur, Georgia, kept his employer’s books, did his correspondence, kept samples, and so on. The selling of the goods of his employer in Alabama and the correspondence and bookkeeping in connection therewith were integral parts each of the other. The sales in Alabama were a part of his employment in keeping the books and carrying on the correspondence, for if there had been no sales or efforts to sell to report, there would have been no need of correspondence in reference thereto ... It was obviously necessary that he maintain headquarters somewhere for this work, all of which was essential to the job he was employed to do, and he kept his headquarters in Georgia, which fact was known to and acquiesced in by his employer . . . [T]he evidence is sufficient to support a reasonable inference that his Georgia employment was connected, at least by his office work and reports, with the particular selling job he was doing in Alabama when he was stricken. It is also reasonably inferable . . . the employee did not, as in the Slaten case, have a separate and disconnected employment in each State where he worked, but that he had one connected selling and representation job to do which comprised six States, and that the office and headquarters through which he did this job, except for his personal selling contacts which were maintained by trips to the various distributors, was in Decatur, Georgia.” Fidelity & Cas. Co., supra at 617-618.

The cases relied on by the employer and the insurer do not require a different result. Security Ins. Group v. Plank, 133 Ga. App. 815 (212 SE2d 471) (1975) involved an employer with fewer than five employees as then required by Code Ann. § 114-107 (now OCGA § 34-9-2, with a three-employee requirement), who nonetheless had provided insurance coverage and was thus estopped to deny coverage. The injury occurred in Georgia, which would give the board jurisdiction regardless of the place of signing of the contract.

Brown v. Travelers Ins. Co., 141 Ga. App. 71 (232 SE2d 609) (1977) involved a Georgia resident who entered into the employment contract in Tennessee and was injured elsewhere. The only Georgia connection with the employment was his residence and his taking the driver’s license test here so he could perform his job. This was insufficient to show a connection with Georgia to the employment.

Roadway Express v. Warren, 163 Ga. App. 759 (295 SE2d 743) (1982) concerned a truck driver whose contract of employment was made in Georgia. He originally worked out of Atlanta and was then injured in Tennessee and received compensation under Tennessee law for that injury. Four years later, he returned to work for Roadway out of Nashville. He was injured a second time in Indiana, received Tennessee benefits and then sought Georgia benefits. Coverage was found under OCGA § 34-9-242 because the contract was made in Georgia and the employer had stipulated that it was a qualified self-insurer in Georgia and subject to the act. Some work was still performed in Georgia by claimant. This would not preclude a finding of jurisdiction in Georgia based on the principal location of the employment being in Georgia, had that factually been the case.

In Aetna Cas. & Surety Co. v. Suits, 150 Ga. App. 35 (256 SE2d 645) (1979), a Tennessee resident made his contract of employment in Georgia for an employer whose main office was in Tennessee. The employee was injured in Tennessee. The court relied on OCGA § 34-9-242 and held that the employer also maintained sufficient contacts with Georgia to sustain the finding that, it had a place of business in Georgia so as to fall within section OCGA § 34-9-242’s requirements. Again, this would not have precluded a finding of jurisdiction based on the principal location of the employment relation being in Georgia as in Fidelity & Cas. Co., supra.

Home Ins. Co. v. Burnett, 146 Ga. App. 355 (246 SE2d 394) (1978) involved a Georgia resident who was hired by Tri-State Trucking, a Tennessee company, as a truck driver who would work out of Cohutta, Georgia, delivering from General Shale under its contract with Tri-State. The board awarded coverage for the Tennessee accident on the stated basis that under then Code Ann. § 114-411 (now OCGA § 34-9-242), “claimant’s state of legal residence is Georgia and that his contract of employment was to be performed in Georgia as well as Tennessee.” The board was reversed on the ground that this was an erroneous legal theory under § 114-411 (OCGA § 34-9-242). There is no indication that the claimant relied below or in this Court on Slaten, Martin, or Fidelity, supra.

The order of the superior court upholding the board’s and ALJ’s finding of no jurisdiction was based on an erroneous legal assumption, i.e., that “while the employee is employed elsewhere than in this state” in OCGA § 34-9-242 means “while the employee is working elsewhere than in this state.” That construction brought into play the necessity to decide whether the contract of employment was made in this state, for such would be a requisite condition of coverage. But the correct interpretation of the clause requires that first a determination be made whether the principal locality of the employment relationship was in Georgia. If so, the employee would not be “employed elsewhere than in this state,” and the conditions of OCGA § 34-9-242 for coverage would not apply. It is only where the finding is that the principal locality of the employment relationship is “elsewhere than in this state” that the prerequisite of a made-in-Georgia contract of employment must be met.

Decided November 4, 1987

Rehearing denied November 23, 1987

Robert A. Wharton, Jr., for appellant.

G. Scott Hoffman, for appellees.

Consequently, the case must be remanded for the board to proceed to find the facts and determine the principal locality of the employment relationship. OCGA § 34-9-105 (c) (4).

Judgment reversed and case remanded with direction.

McMurray, P. J., and Sognier, J., concur.

       Despite the argument that there is no opt-out provision left in the law, thus making the
        Slaten rationale passe, new OCGA § 34-9-2.1, enacted in 1982 allows corporate officers to elect not to be covered by the system.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    74869.
    SULTENFUSS v. THE STATE.
    (363 SE2d 337)
   Carley, Judge.

A “known confidential informant,” who had given reliable information in the past, reported to police officers that appellant was selling cocaine in the parking lot of a local country club. Based on this information, police officers proceeded to the country club and began to patrol the parking lot. Although one of the officers saw a blue Oldsmobile which he knew to be similar to the automobile that was owned by appellant’s father, appellant was not seen. However, the officers did see the informant as he and a number of others departed from the country club. The police officers decided to follow the informant as he drove away in his car, hoping to have an opportunity to stop him and gain further information concerning appellant’s reported cocaine sales. As the result of this decision, the officers found that they were not only following the informant but were also following many others who were leaving the club and were driving to a certain apartment complex. Thus, the officers in effect followed as the site of a social gathering was apparently moved from the country club to another location. Upon their arrival at the apartment complex, the officers noticed the blue Oldsmobile which they had formerly observed in the parking lot of the country club. The car was unoccupied but the officers confirmed by a computer check that it did belong to appellant’s father. Thereafter, as the officers watched, appellant and two passengers got into the Oldsmobile and simply drove from one parking space to another. A marked police car then pulled in behind the Oldsmobile and two police officers, one of whom had a drawn gun, approached the car from either side. The officers identified themselves and ordered that appellant and his two passengers keep their hands in view and step from the car. Although the two passengers complied with the officers’ request, appellant did not. When appellant failed to place his hands in view and to step from the automobile, the police officers forcibly removed him. The officers observed appellant as he dropped a plastic bag containing cocaine upon his forcible removal from the car. Appellant was then placed under arrest.

Appellant was indicted for possession of cocaine with intent to distribute. He was tried before a jury and found guilty of possession of cocaine. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the denial of his motion to suppress.

The contention that, under the existing circumstances, the officers did not have a sufficient articulable suspicion upon which to justify a brief period of investigatory detention is controlled adversely to appellant by Stiggers v. State, 151 Ga. App. 546, 547 (1) (260 SE2d 413) (1979). Appellant further contends that, under the evidence, the officers acted in excess of their authority to conduct an investigatory detention and arrested him without probable cause. However, the investigatory detention was not transformed into an arrest merely because one of the officers, who had physically struggled with appellant during a prior incident, drew his weapon on this occasion. See generally Edwards v. State, 165 Ga. App. 527, 528 (301 SE2d 693) (1983). The fact that appellant was asked and then required to step from the automobile did not transform the investigatory detention into an arrest. See United States v. Roper, 702 F2d 984, 987-988 (7) (11th Cir. 1983). That the detention of appellant was achieved by blocking his car did not convert the confrontation into an arrest. See Stiggers v. State, supra at 546.

Thus, the trial court was authorized to find that the cocaine had been discovered in plain sight during a permissible investigatory detention, which detention had been based upon a sufficient articulable suspicion that appellant was engaged in criminal activity. Therefore, the trial court correctly denied appellant’s motion to suppress.

2. Over objection, the State was allowed to introduce evidence that appellant had a previous conviction for possession of cocaine. The jury was instructed that this evidence was being admitted solely for the limited purpose of showing appellant’s course of conduct and bent of mind. The admission of this evidence is enumerated as error.

“Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate claim will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). Insofar as appellant had denied that the cocaine belonged to him, his prior conviction for possession of cocaine was clearly probative and admissible evidence as to the limited issue of his course of conduct and bent of mind. This enumeration is without merit.

3. Appellant moved for a mistrial on the ground that his character had been improperly placed into evidence by the testimony of a police officer who was a witness for the State. The trial court denied appellant’s motion but instructed the jury to disregard the remark of the witness. Appellant then renewed his motion for a mistrial and, on appeal, he enumerates the denial of his motion for mistrial as error. However, the motion for mistrial was not erroneously denied. See Tutman v. State, 164 Ga. App. 400 (296 SE2d 412) (1982). See also Sabel v. State, 250 Ga. 640, 643-644 (5) (300 SE2d 663) (1983).

4. Error is enumerated as to the trial court’s admission of certain documentary evidence over appellant’s objection that it was “irrelevant and prejudicial.” “An objection to evidence on the ground that it is irrelevant, immaterial and prejudicial is ‘entirely too vague and general to present any questions for determination by the trial court, and the overruling of this objection did not constitute reversible error. [Cits.]’ [Cit.] ‘(A) mere general objection to evidence that is immaterial, inadmissible and prejudicial is too general to present any question for decision. [Cit.]’ [Cit.]” Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598) (1983). Appellant’s further contention that his character was placed into issue by the admission of certain testimony which was explanatory of the documentary evidence is also without merit. “Appellant made no objection to such testimony at trial and this court will not consider questions raised for the first time on appeal. [Cit.]” Durham v. State, 181 Ga. App. 155, 157 (3) (351 SE2d 683) (1986).

5. The trial court included in its charge to the jury the following instruction on the methods of impeachment: “[A] witness may be impeached as follows: by disproving facts to which the witness testified . . . , by proof that the witness has been convicted of a crime involving moral turpitude, or by proof of a contradictory statement previously made by the witness as to matters relevant to his or her testimony in the case.” Immediately following this charge, the jury was given extensive instructions which elaborated on principles applicable to impeachment by disproving facts and to impeachment by proof of prior inconsistent statements. Proof of a prior conviction of a crime of moral turpitude as a method of impeachment was never again specifically addressed in the trial court’s charge. On appeal, appellant enumerates error in the charge on impeachment as given by the trial court but only insofar as the trial court’s charge included a reference to proof of prior convictions of crimes of moral turpitude as a method of impeachment. Appellant’s sole contention is that a charge on that method of impeachment was unauthorized under the evidence.

A charge on impeachment by proof of a prior conviction of a crime of moral turpitude was not authorized in this case. This would follow, if for no other reason, from the fact that no certified copy of any prior conviction of any witness was ever introduced into evidence in the guilt-innocence phase of the trial. See Ledesma v. State, 251 Ga. 885, 888 (4) (311 SE2d 427) (1984). However, appellant would not be entitled to a new trial simply because the charge on that method of impeachment was not authorized by the evidence and was, therefore, erroneously given in this case. “Where there is no evidence which could have misled the jury into believing that there was evidence to which a charge on the . . . legal [method] here charged of impeaching a witness could be applied, it was not reversible error to instruct the jury on the [method] of impeaching a witness.” Peters v. State, 72 Ga. App. 157 (4) (33 SE2d 454) (1945). Appellant nevertheless contends that the erroneous charge cannot be considered harmless in this case. He urges that, unlike Peters v. State, supra, there was evidence which might well have misled his jury into believing that the inapplicable principle of impeachment by prior convictions for crimes of moral turpitude would be applicable. That evidence is appellant’s own prior drug conviction which is discussed in Division 2 of this opinion. Since appellant was a witness in his own defense, he urges that the erroneous charge would be harmful if the jury used his prior drug conviction as a basis upon which to find that his exculpatory testimony in this case had been impeached. However, the jury was not left without instruction as to the proper consideration to be given appellant’s prior conviction. The jury was repeatedly charged that that specific prior conviction could be considered solely for certain enumerated evidentiary purposes and was not to be considered for any other purpose. Accordingly, if the jury followed the trial court’s instructions as to appellant’s prior conviction in specific, it would not have considered that conviction as evidence to which the previous general charge on impeachment by proof of prior convictions of a crime of moral turpitude was applicable. Moreover, if the jury had determined to impeach appellant’s testimony, it undoubtedly would not have acquitted him of the greater charge of possession of cocaine with intent to distribute.

Decided November 23, 1987.

J. Robert Daniel, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.

Thus, the trial court erred in including in its charge a reference to the principle of impeachment by prior convictions of crimes of moral turpitude and the evidentiary posture of the case was such that this erroneous reference, if considered in isolation, would warrant reversal. However, when the erroneous instruction is considered in the context of the overall charge in which it was given, it appears to be no more than a passing general reference, followed by extensive instructions as to the two viable methods of impeachment in the case, and then followed by specific instructions the effect of which could only have been to preclude the jury from giving it harmful effect. Under these circumstances, we find that the contested “portion of the charge was at most merely irrelevant, being one of a number of stated [methods of impeachment]. The true question is whether an abstractly correct charge not authorized by the evidence is calculated to confuse and mislead the jury. The harmless error question in jury instructions as applied to criminal cases is . . . [as follows:] [Wjhere it is obviously highly probable that the error, if existing, did not contribute to the verdict, a reversal will not result. [Cits.] Taking the charge as a whole we find no reversible error.” Hill v. State, 155 Ga. App. 718, 719 (1) (272 SE2d 508) (1980). See also Cooper v. State, 167 Ga. App. 440, 441 (306 SE2d 709) (1983).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    74893.
    74894.
    WHISNANT v. THE STATE. HORTON v. THE STATE.
    (363 SE2d 341)
   Banke, Presiding Judge.

Horton and Whisnant were convicted of jointly possessing more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. On appeal, their primary contention is that the contraband should have been suppressed on the ground that it was seized during the course of an unlawful search.

The salient facts are not in dispute. Approximately 86 pounds of marijuana were seized from a rented vehicle which Horton was driving and in which Whisnant was riding as a passenger on 1-75 in Catoosa County, Georgia, after Horton was pulled over for the offense of driving 65 m.p.h. in a 55 m.p.h. zone. Prior to the stop, the arresting officer, Deputy Sheriff Groover, had followed the car for several miles, during which time he had observed that it was a rental car from Miami, Florida.

Horton was immediately placed under arrest for the speeding violation, while Whisnant was held in “investigative detention.” Both were taken, along with the vehicle, to the county jail, where, unable to obtain the appellants’ consent to a search of the vehicle, the officers arranged for a narcotics dog to “sniff” its exterior to investigate the possible presence of illicit drugs therein. A search warrant was obtained on the basis of the dog’s reaction. The ensuing search, which occurred approximately two hours after the initial stop, resulted in the seizure of the marijuana from inside certain luggage discovered in the trunk. Held:

1. The appellants rely on United States v. Smith, 799 F2d 704 (11th Cir. 1986), for the proposition that the officer’s stop was a mere subterfuge to conduct an unreasonable search not founded upon probable cause. In that case, the Court made a specific finding, based on the testimony of the arresting officer, that the decision to effect the stop had been made before the purported traffic infringement occurred. Id. at 710, fn. 9. In the case before us, there is no suggestion that the officer decided to pursue and stop the appellants’ car before the traffic violation occurred. On the contrary, the evidence shows that the officer’s attention was initially drawn to the appellants’ vehicle because it sped past him on the highway. Furthermore, although the officer admitted that he was “suspicious” that the appellants might be involved in drug activity due to a belief on his part that they met certain “drug courier profile” characteristics, he testified that he would have stopped the vehicle for the traffic violation even absent such suspicions.

The United States Supreme Court has held that the motivation of an officer, even if improper, will not invalidate an otherwise valid search conducted incident to a lawful arrest. United States v. Robinson, 414 U. S. 218 (94 SC 467, 38 LE2d 427) (1973). We conclude that Horton’s arrest for speeding in this case was not characterized by any impropriety giving rise to a violation of his Fourth Amendment rights.

2. The appellants next contend that, even if the original stop was lawful, the subsequent search of the vehicle was invalid because it was not conducted incident to Horton’s arrest for speeding but was conducted long after the vehicle had already been seized without probable cause. We agree. While the United States Supreme Court has held that a contemporaneous warrantless search of a motor vehicle conducted incident to the lawful custodial arrest of its driver is lawful, see New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981); United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982), this exception to the probable cause requirement has not been extended to circumstances such as those presented by the present case.

The rationale behind the “automobile exception” is that the exigencies surrounding the custodial arrest of a driver outweigh whatever privacy interests the driver and passengers may have in the articles and containers stored in the car. These exigencies include the danger that the suspect could grab a secreted weapon or could destroy evidence contained in the car. Although the term “contemporaneous” has been held to apply to vehicular searches conducted at roadside even after the driver has been taken into custody and separated from his vehicle (see Curry v. State, 155 Ga. App. 829 (273 SE2d 411) (1980); State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982); State v. Watkins, 182 Ga. App. 431 (356 SE2d 82) (1987)), it has never been extended so far as to permit the impoundment of a vehicle under circumstances in which impoundment would not otherwise be permitted.

The record in this case reveals that Whisnant was not accused of any crime at the time he and Horton were taken into custody and that he was designated on the rental papers as being an authorized driver of the vehicle. The record further reveals that the appellants were never advised of any permissible alternative to impoundment of the vehicle. Indeed, the fact that Whisnant was being held in “investigatory detention” clearly indicates that no alternatives to impoundment were in fact recognized by the officers.

Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976). Impoundment is not permissible “ ‘[w]hen the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove [the] vehicle which is capable of being safely removed.’ ” State v. Ludvicek, 147 Ga. App. 784, 786 (250 SE2d 503) (1978). Under the facts before us, we must therefore conclude that the initial seizure of the vehicle was not authorized.

“Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T.L.O., 469 U. S. 325, 337 (105 SC 733, 83 LE2d 720) (1985). Because the evidence adduced at the hearing on the motion to suppress reveals without dispute that the vehicle was seized two hours prior to the issuance of the warrant on which the search was predicated, and because the information on which the warrant was based was attributable directly to and would not have existed but for the pre-existing seizure of the vehicle, we must conclude that the trial court erred in denying the appellants’ motions to suppress. Accord United States v. Place, 462 U. S. 696, 709-710 (103 SC 2637, 77 LE2d 110) (1983) (holding that in the absence of probable cause, a 90-min-ute seizure was per se unreasonable).

Decided November 23, 1987.

Ralph Hill, Jr., for appellants.

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

3. The appellants’ remaining enumerations of error are rendered moot by the foregoing.

Judgments reversed.

Carley and Benham, JJ., concur.


author: McMurray, Presiding Judge. Sognier, Judge,

text:
    74408.
    PHILLIPS v. THE STATE.
    (363 SE2d 283)
   McMurray, Presiding Judge.

Defendant was convicted of driving under the influence of alcohol and this appeal followed. Held:

1. Defendant contends that the verdict was contrary to the evidence and that the trial court erred in denying his motion for a directed verdict of acquittal. We disagree. Viewing the evidence in the light most favorable to the State, we find the following facts:

On January 12, 1986, at about 4:30 a.m., the police found defendant in his pickup truck on a dirt road near a trailer park. Defendant had passed out and was slumped over the steering wheel. The truck was “almost in the middle of the road,” “sitting on the wrong side of the street.” In the words of one officer, it was “parked kind of crossways the road.” The engine was running and the lights were on. Defendant’s speech was slurred; the smell of alcohol was on his breath. Defendant was arrested for driving under the influence of alcohol. He was advised of his rights and asked whether he was driving the truck. Defendant told the police that “he didn’t know how he got there.” He did not deny driving the truck.

At trial, defendant did not deny that he was intoxicated at the time in question. He maintained, however, that he did not drive his truck. Defendant testified that he spent the previous evening drinking with a female companion at a place called Carrigans; that she lived in the trailer park; that he and his female companion left Carrigans when it closed; that his companion drove the truck because she was in better shape than defendant; and that he fell asleep on the way back to the trailer park. Defendant also averred that he turned on the engine to keep warm (it was cold outside) and that when he was awakened by the police he had no idea how he had gotten there. The female companion was not called as a witness.

“It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. Stephens v. State, 127 Ga. App. 416 (192 SE2d 870) (1972). It is not necessary that the circumstantial evidence exclude every reasonable inference or hypothesis except guilt of an accused, but' only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. The jury itself decides whether every reasonable hypothesis except that of guilt of the defendant has been excluded. Rogers v. State, 139 Ga. App. 656, 659 (229 SE2d 132) (1976).” Lewis v. State, 149 Ga. App. 181 (1), 182 (254 SE2d 142).

The evidence, though circumstantial, justified a finding of defendant’s guilt beyond a reasonable doubt. Lewis v. State, 149 Ga. App. 181, supra; Fuller v. State, 166 Ga. App. 734, 735 (305 SE2d 463); Drayton v. State, 175 Ga. App. 803 (334 SE2d 720). Defendant was found sitting behind the wheel of a truck which was parked in the middle of the road. The engine was running and the lights were on. Although no one saw defendant driving the truck, the circumstantial evidence demonstrated he had been in physical control of a moving vehicle shortly before the police arrived. “ ‘The jury was authorized not to accept an alternate hypothesis offered by (appellant).’ Porter v. State, 162 Ga. App. 661 (2) (292 SE2d 529).” Fuller v. State, 166 Ga. App. 734, 735 (1), supra.

2. Defendant enumerates error upon the refusal to give the following request to charge: “I charge you that OCGA § 40-6-391 makes it illegal to drive or be in actual physical control of any moving vehicle while under the influence of alcohol or drugs. This means that while the vehicle need be driven for only a few yards, it must be a moving vehicle under the control of defendant.” (Emphasis supplied.) This enumeration is not meritorious. The trial court instructed the jury correctly that “[a] person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol.” See OCGA § 40-6-391 (a). The failure to give a requested charge is not harmful error where the charge given by the trial court embraced the same subject matter or as much thereof as was appropriate. Epps v. State, 134 Ga. App. 429, 434 (7) (214 SE2d 703). Since the trial court charged the jury on the subject matter of the requested charge, it cannot be said defendant was harmed by the failure to give the requested charge. Moreover, under the facts of this case, the requested charge is argumentative and an incorrect interpretation of the law. See Carr v. State, 169 Ga. App. 679 (1) (314 SE2d 694).

3. The assertion is made that defendant’s statements to the police and the results of an intoximeter test were admitted erroneously over objection because they were the fruits of an illegal arrest. In this regard, it is argued that the police lacked probable cause to arrest defendant for driving under the influence of alcohol.

The facts and circumstances within the knowledge of the police were sufficient to warrant the belief by a man of reasonable caution that a crime had been committed. See Cornelius v. State, 165 Ga. App. 794 (302 SE2d 710). As defendant was not arrested illegally, the results of the intoximeter test and defendant’s statements were not tainted.

4. Defendant complains that in overruling his “tainted evidence” objection, the trial court rested its ruling upon an erroneous legal theory. This complaint has no merit. When a ruling of the trial court is legally correct, it will be upheld regardless of the reason assigned. State v. Brittain, 147 Ga. App. 626, 627 (249 SE2d 679); Futch v. State, 145 Ga. App. 485, 486 (1), 487 (243 SE2d 621).

Judgment affirmed.

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

Sognier, Judge,

dissenting.

I respectfully dissent. In Georgia, as elsewhere in the United States, a defendant is not required to prove his innocence; rather, the State must prove a defendant’s guilt beyond a reasonable doubt. This court cannot relieve the State of this burden by an assumption, unsupported by logic or evidence, that an intoxicated person passed out under the steering wheel of his parked vehicle is, or must have been, operating a moving vehicle while under the influence of alcohol.

The majority opinion infers that because appellant did not call his girl friend as a witness his testimony did not present a reasonable hypothesis save that of guilt. Aside from the fact that appellant did not have to prove his innocence, such an inference overlooks the fact that there is a very plausible explanation for not calling the witness, namely, that if the girl friend testified she would incriminate herself by testifying that she drove the truck while under the influence of alcohol, and thus, she could refuse to testify.

OCGA § 40-6-391 (a) provides, in pertinent part: “A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol; ...” (Emphasis supplied.) Not only was appellant not driving his parked vehicle, it can hardly be said that he was in physical control of the vehicle when he was either asleep or passed out under the steering wheel. Thus, he did not violate the statute cited by driving or being in actual physical control of a moving vehicle.

In Carr v. State, 169 Ga. App. 679 (2) (314 SE2d 694) (1984), the trial court charged the jury that “being in actual physical control of a vehicle might be accomplished merely ‘by sitting therein on a public highway or elsewhere, and while in control and under the steering wheel, starting the motor, under which circumstances being in the actual physical control of the vehicle is a separate offense from the actual driving of the vehicle.’ ” The court also recharged the jury that “the term ‘movement’ did not necessarily refer to movement of the vehicle itself but could also refer to ‘acts which engage the machinery of the vehicle, that alone or in sequence will set in motion the motive power of the vehicle.’ ” In reversing on the ground that these charges were an incorrect statement of the law, we held: “These charges were not a correct statement of current law but were evidently derived from judicial interpretations of former Code Ann. § 68-1625 (Ga. L. 1953, Nov. Sess., pp. 565, 575), under which it was unlawful for any person under the influence of alcohol to operate any vehicle, without regard to whether it was moving. See e.g., Flournoy v. State, 106 Ga. App. 756 (128 SE2d 528) (1962). That statute was superseded by Ga. L. 1974, pp. 633, 693, which serves as the basis for the present code section. The former proscription against merely operating a vehicle while under the influence of intoxicating liquor has been replaced by a proscription against driving or being ‘in actual physical control of any moving vehicle’ while under the influence of alcohol or drugs. OCGA § 40-6-391 (a) (Code Ann. § 68A-902).” Id. 680.

Decided November 5, 1987

Rehearing denied November 24, 1987.

John H. Calhoun, Jr., for appellant.

David B. Pittman, Solicitor, for appellee.

Appellant’s explanation as to what he was doing in the truck was plausible, and was supported by the fact that the truck was in the road directly across from the trailer where his girl friend lived. Since there was no evidence, circumstantial or otherwise, that appellant was operating or in physical control of a moving vehicle, I would reverse the conviction in this case.

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


text:
    74629.
    THOMASTON MILLS, INC. v. KIERBOW.
    (363 SE2d 276)
   Beasley, Judge.

We granted the employer/self-insurer Thomaston Mills, Inc., discretionary appeal from the superior court’s affirmance of an award of the State Board of Workers’ Compensation to consider the company’s contention that it should have been permitted to suspend payments of temporary total disability weekly wage benefits to claimant Kierbow because she intended to voluntarily retire from the work force.

Kierbow, age seventy-one, chose to take early retirement from Thomaston Mills in 1979 when she was sixty-three. She participated in a retiree program which allowed her to continue to work at the company and earn $5,000 per year to supplement but not jeopardize her social security income until age seventy. In January 1981, she sustained a knee injury but continued to work until she became disabled in February. She returned to work part-time in September but soon became totally disabled. At the time of Kierbow’s return, the employer was undergoing a reduction of work force and she was laid off. Kierbow brought a claim for change of condition and was awarded temporary total disability benefits. See Thomaston Mills v. Kierbow, 177 Ga. App. 368 (339 SE2d 361) (1985).

After the award she was released to work with restrictions, and the employer offered her a job which she refused. Thomaston Mills then applied to suspend her temporary total disability benefits. The ALJ heard and denied the application. The Board adopted the ALJ’s award with one director dissenting in part on the basis that although claimant had established temporary total disability benefits as of the date of hearing before the ALJ, she stated that she no longer intended to work after reaching age seventy even if she were able, and that she had thus taken herself out of the job market as of that date. The dissent concluded that temporary total disability benefits should have been terminated as of her seventieth birthday, with permanent partial disability benefits started based on a previous rating and any payments made as temporary total disability benefits (OCGA § 34-9-261) since her seventieth birthday credited against permanent partial disability benefits (OCGA § 34-9-263). For an explanation of the distinctions, see Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 160 (3) (338 SE2d 742) (1985).

Employer urges the position of the dissenting Board member, arguing that the Board award affirmed by the lower court is contrary to law in that allowing a worker who manifestly intends to retire from the work force to continue to receive such benefits after that point is contrary to the Workers’ Compensation Act. It analogizes the situation of voluntary retirement to personal injury claims for lost wages and to the circumstance of an intervening force which prevents a claimant from entering the work force.

Even if we accept the company’s interpretation of Kierbow’s testimony as being unequivocal on the issue of intended full retirement, this would not permit the employer to suspend the payment of benefits under OCGA § 34-9-261.

Thomaston Mills asserts that, as in personal injury cases, the Workers’ Compensation Act should take into account the effects of age and infirmity in determining when to end weekly wage benefits. It argues that Kierbow is now at seventy-one, past retirement age, and has infirmities other than her knee which prevent her from working, which negative factors should be considered in ending her weekly temporary total disability benefits as her wage loss is related to these factors rather than to her work-related injury.

The allegation that claimant’s wage loss stems from her age and infirmities other than her compensable injury is mere speculation. The record supports the finding that the inability to work stems from the work injury. The award of the ALJ originally providing for total disability benefits, issued in April 1984, when the employee was sixty-eight, expressly stated that in 1981 an examining orthopedist found that she had a 35 percent physical impairment of the right knee secondary to her lateral cartilage tear at work and another 15 percent physical impairment because of degenerative joint disease caused by her work-related injury. In 1983, this same physician rated claimant as having a 50% permanent partial disability to the right lower extremity caused by her work-related injury. The ALJ found Kierbow to have this 50 percent permanent partial disability caused by her work-related injury.

Moreover, the approach in personal injury cases does not lend itself to the context of workers’ compensation. Brown v. Lumbermen’s Mut. Cas. Co., 49 Ga. App. 99 (174 SE 359) (1934), while not a precedential opinion, correctly observed that the legislature has endeavored by the workers’ compensation law to provide a means by which employer and employee may escape entirely from any troublesome aspect of personal injury litigation through a system by which every employee not guilty of wilful misconduct may obtain at once a reasonable recompense for injuries accidentally received in his employment, without lawsuit and without friction.

Nor can we accept the employer’s claim that the intention to retire because of age is such an intervening cause as would permit cessation of benefits. As the record demonstrates, it would be virtually impossible to evaluate an intention to retire under this type of analysis because the decision to retire from the work force is not made in a vacuum. It would be the product of many factors, including but not limited to age, health, and financial status, and, as in this case, any health considerations in retirement would, at least in part if not entirely, stem from the work-related injury.

Fatal to appellant’s position is that such policy arguments are misdirected. There is nothing within the statutory framework of the Workers’ Compensation Act which provides that the payment of weekly wage benefits be terminated upon retirement from the work force. In fact, “ [compensation for total disability is necessarily open-ended according to the terms of the statute, which sets no ceiling on the number of weeks such benefits may be required to be paid. See OCGA § 34-9-261.” Diers v. House of Hines, 168 Ga. App. 282 (2) (308 SE2d 611) (1983).

Decided November 4, 1987

Rehearing denied November 24, 1987

Susan V. Sommers, Judith A. Hodges, Alfred A. Quillian, Jr., for appellant.

Johnny B. Mostiler, for appellee.

“This is a court for the correction of errors of law. As such, we are bound to apply the plain language of pertinent statutes as written. Issues of policy are properly addressed to legislative bodies.” Thomaston Mills v. Kierbow, supra at 370. “The [Workers’] Compensation Act constitutes a complete code of laws upon the subject of the rights and remedies of employers, employees, and their dependents. [Cits.] This court can neither rewrite the law nor hedge it about with restrictions not included in it.” St. Paul Fire &c. Ins. Co. v. Miniweather, 119 Ga. App. 617 (3) (168 SE2d 341) (1969). We are not at liberty to impose any limitations or exceptions upon an employee’s statutory right to recover compensation in the absence of a clear legislative intent. General Motors Corp. v. Hargis, 114 Ga. App. 143 (1) (150 SE2d 303) (1966).

If the legislature intends that temporary total disability wage benefits are to cease at the end of a person’s work-life, it has not said so. Nor has it hinted at any standard of measure for ascertaining such an event. The Workers’ Compensation Act is a humanitarian measure which should be liberally interpreted by this Court to carry out that purpose. Atha v. Jackson Atlanta, Inc., 159 Ga. App. 433, 436 (283 SE2d 654) (1981).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Sognier, Judge. Beasley, Judge,

text:
    74861.
    CITY OF LaGRANGE v. GEORGIA POWER COMPANY.
    (363 SE2d 286)
   Sognier, Judge.

The City of LaGrange and Georgia Power Company filed a joint petition for a declaratory order with the Georgia Public Service Commission (PSC), to determine which had the right under the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et seq., to provide electric service to a new industrial customer. Upon stipulated facts, the PSC determined that the City did not have the exclusive right to provide such service, but that the customer should have the right to choose from among the authorized suppliers. The superior court affirmed the PSC’s order, and the City appeals.

The record reveals that in an effort to attract new industry to the City, the Development Authority of LaGrange constructed a building in an industrial park on speculation. Temporary electric service to the site during construction was provided by the City on application of the contractor, and service was transferred to the Authority after completion of the shell. The building was purchased by a manufacturer of plastic bags, and electric service was again transferred, this time to the contractor hired by the purchaser to complete construction of the facility. When operational, the premises, located within an area annexed to the City after March 29, 1973, will have single-metered service and a connected load in excess of 900 kilowatts. Both appellant and appellee own lines and are authorized to provide service to the location.

The Georgia Territorial Electric Service Act generally provides for assignment of electric suppliers by geographical location. However, OCGA § 46-3-8 (a) (4) provides in pertinent part that “[notwithstanding any other provision of this part, but subject to subsections (b) and (c) of this Code section, . . . service to one or more new premises ... , if utilized by one consumer and having single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater . . . , may be extended and furnished, if chosen by the consumer . . . [b]y any electric supplier owning lines in a municipality if the premises are located in a geographic area annexed in any manner to such municipality after March 29, 1973.” Thus, subsection (a) of the statute gives “large load” consumers (such as the one in this case) the right to choose among the authorized suppliers of electric service. Subsection (b) of the statute, the “grandfather clause,” provides, however, that, notwithstanding the customer choice provision, “every electric supplier shall have the exclusive right to continue serving any premises lawfully served by it on March 29, 1973, or thereafter lawfully served by it pursuant to this part . . . ,” thereby providing for an exception to the customer-choice provision when the customer’s premises has been lawfully served previously by a provider pursuant to the Act.

The City contends the trial court erred by affirming the PSC’s order because, having lawfully provided service to the premises during construction, OCGA § 46-3-8 (b) granted to it the exclusive right to continue serving the premises. We do not agree. The City provided electric service to the temporary construction site in question here, a construction site which at that time did not qualify as a large load consumer; thus, no choice was involved in the selection of the provider of electric service to that site. The City now seeks to extend that temporary provision of electric service to the permanent premises on the basis that it has been “grandfathered” into the exclusive right to provide such service by subsection (b). We are not persuaded by the City’s interpretation of the statute, which would deprive certain large load consumers in situations such as the one here of their statutory right to choose a provider of electric service under subsection (a), thus eviscerating that entire subsection and the intention of the legislature in enacting it. Under the City’s interpretation, customer choice would be eliminated whenever temporary service is provided to construction sites under other parts of the Act. The new large load customer here would be “locked in” to the choice made by the City — a party not totally without self-interest in that it is also the beneficiary of this choice, since it is the supplier chosen. Thus, the evident purpose, and indeed the plain words of subsection (a) of OCGA § 46-3-8, would be rendered meaningless: there would be no customer choice.

Our rejection of the City’s interpretation of subsection (b) is further supported by an examination of subsection (f) of the statute, which, while not addressing itself at all to large load consumers,, specifically provides that a supplier may furnish temporary or construction service to premises in some instances and yet not acquire the exclusive right to provide permanent service to the premises. Since subsection (f) is nowhere qualified as an exception to subsection (b), the interpretation urged by the City places the plain language of subsection (f) in conflict with subsection (b).

Such a result is not only anomalous, it is unnecessary. The PSC interpreted subsection (b) so as to harmonize all three subsections of the statute to provide a reasonable and sensible construction. Under the PSC’s interpretation, the providing of temporary service to a construction site by one supplier of electric service does not foreclose the large load consumer from choosing another authorized supplier for the permanent service to the completed site. In this manner subsection (a) is given its plain and unambiguous meaning that large load customers may choose among the authorized electric suppliers; subsection (b) continues to authorize every supplier who once furnishes permanent service to premises in accordance with the Act to have, notwithstanding any other provision, the exclusive right to continue serving those premises; and subsection (f), which simply has no bearing on this issue, remains viable according to its plain language in the situations in which it was intended to apply without any conflict with subsection (b).

In interpreting OCGA § 46-3-8, it is our duty to consider the subsections in pari materia, and to reconcile them, if possible, so that they may be read as consistent and harmonious with one another. Board of Trustees v. Christy, 246 Ga. 553 (272 SE2d 288) (1980). The construction given the statute by the PSC is consistent with these established principles of statutory construction. Moreover, the PSC, as the agency charged with oversight and supervision of electric power companies in this State, OCGA § 46-2-20 (a), including the enforcement and administration of the Georgia Territorial Electric Service Act, is entitled to great deference in its interpretation of the Act. “The administrative interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight. [Cits.]” Mason v. Svc. Loan &c. Co., 128 Ga. App. 828, 831 (198 SE2d 391) (1973).

We find no merit in any argument that the Supreme Court’s holding in City of Calhoun v. North Ga. Elec. &c. Corp., 233 Ga. 759 (213 SE2d 596) (1975) requires a different result. Although both City of Calhoun and the case sub judice involve the Georgia Territorial Electric Service Act, that is the only point of reference these cases have in common since City of Calhoun was concerned solely with a constitutional challenge to the Act, and does not suggest or intimate the validity of a different interpretation.

Since we find that the PSC correctly interpreted the statute, the superior court did not err by affirming the PSC’s order.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

The PSC ruled that the city lawfully provided service initially to the site of the manufacturing plant under construction pursuant to the Act because at the time service was provided to the construction site the connected load was less than 900 kilowatts, “and thus service was provided by the assigned provider, the city. Thus, the question presented is whether an electric supplier who lawfully extends and furnishes electric service to a construction site at which a premises is to be constructed which, at the time of initial full operation, will require 900 kilowatts or greater, may preclude the operation of the ‘customer choice’ provisions of [OCGA § 46-3-8 (a)] by the customer.”

The city contended that its initial providing of electric service to the construction site of the premises constituted service as contemplated by OCGA § 46-3-8 (b) and (f) so as to grant it the exclusive right to continue thereafter to serve the premises. Subsection (b) is the “grandfather” clause. Subsection (f) establishes that “[t]he time at which an electric supplier . . . shall be considered as having the right to extend and furnish . . . service to new premises shall be the time at which written application for temporary construction or permanent service is made to any electric supplier by the consumer utilizing such premises or the time at which construction of such premises is commenced, whichever first occurs. The location of a premises for temporary construction service shall be deemed to be the same as the location of the premises which shall require permanent service after construction. ...”

After noting that the Act empowered it to arbitrate disputes and, where there was no clear cut resolution, to resort to statutory construction and common sense application of the Act, the PSC concluded that “to allow the city’s contention to prevail would emasculate the provisions of subsection (a),” and thus “a distinction should be drawn between temporary construction service and permanent service, for purposes of subsection (a) ‘customer choice’ provisions . . . By encouraging healthy competition between electric suppliers for large load customers, electric suppliers will strive to provide reliable electric service at the least cost to the consumer . . . Therefore, in instances where a premises under construction takes temporary or construction service from an electric supplier lawfully authorized to provide that electric service and the premises, at initial full operations, will be utilized by one consumer and have single-metered service of 900 kilowatts or greater, the customer shall be entitled to select an electric supplier for permanent service pursuant to OCGA § 46-3-8 (a), notwithstanding the previous provision of temporary construction service by an electric supplier.” (Indention omitted.)

The city’s argument is that the plain and unambiguous language of the Territorial Electric Service Act, specifically the “grandfather” provision of OCGA § 46-3-8 (b), compels the finding that it had the exclusive right to serve the consumer utilizing the premises from the time the city provided temporary construction service to the site.

While the aims expressed by the PSC in its interpretation of the purposes of the Act may be desirable public policy, they are not in accord with the construction previously endorsed by our Supreme Court and stated in City of Calhoun v. North Ga. Elec. &c. Corp., 233 Ga. 759, 767-68 (5) (a) (213 SE2d 596) (1975), where the Act was unsuccessfully attacked as an unconstitutional restraint of trade. The Court recognized that “under the standards set forth in the Act, even though a particular area may be assigned to an electric supplier, other electric suppliers already serving customers in that area may continue to serve those customers as well as new customers located near their lines.” It explained that the restriction on competition was valid because “unrestricted competition between electric suppliers could injure existing public service and otherwise adversely affect the public interest. . . [t]o the extent the assignment of service areas under the Act restrains competition, the restraint is for the benefit of the public in minimization of duplication of facilities and prevention of other adverse economic and environmental effects.” (Indention omitted.)

Not only was the statutory interpretation reached by the PSC and affirmed by the superior court here inconsistent with the construction of the Act delineated in City of Calhoun, supra, it was inappropriate. “ ‘[W]here the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden’ [cit.], the only exception being the case where an unequivocal meaning ascribes to the legislature an unreasonable or senseless intent.” Taco Mac v. Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 539 (340 SE2d 922) (1986).

Moreover, “statutes must not be interpreted to thwart the avowed purpose of the legislature.” Hardison v. Booker, 179 Ga. App. 693, 696 (4) (347 SE2d 681) (1986). The legislative intent and policy is specifically declared within Section 2 (OCGA § 46-3-2) of the Territorial Electric Service Act, as the Supreme Court pointed out in City of Calhoun, supra at 761 (1). Its purposes include “the orderly furnishing of electric service and minimizing interference.” City of Calhoun, supra at 765. “[The Act’s stated] purposes are put into effect completely and thoroughly by other provisions. The Public Service Commission is delegated the authority only to apply the standards set forth in the Act, to make rules and regulations according to such standards and to administer them.” City of Calhoun, supra at 769.

Bearing in mind the goals of the Act, I conclude that the right of an over-900 kilowatt customer to choose its supplier is made subordinate to the right of an assigned electric service supplier to continue service once it has been lawfully extended and furnished under OCGA § 46-3-8 (f). While this may preclude some 900-plus kilowatt customers from choosing their suppliers, it results from following the Act’s avowed purposes. Thus the strained distinction reached by the PSC between temporary and permanent service in attempting to nullify the specific exception to the “grandfather” provision of OCGA § 46-3-8 (b) exempted by subsection (f) is both unwarranted and unneeded.

“ ‘Service’ means retail electric service and includes temporary or construction service as well as permanent service. . . .” OCGA § 46-3-3 (9). It is undisputed that the city lawfully extended retail electric service to the premises in 1984 and has continuously provided service at all times relevant since then. “ ‘Premises’ means the building, structure or facility to which electricity is being or is to be furnished. ...” OCGA § 46-3-3 (6). In this case the premises is the building that was being constructed while electrical service was being furnished by the city. City of Marietta Bd. of Lights &c. v. Ga. Power Co., 176 Ga. App. 123 (335 SE2d 467) (1985).

The 900-kilowatt “customer choice” exception of OCGA § 46-3-8 (a) is thus made specifically subject to the rights of the electric supplier first providing service to continue to serve the premises. The unavoidable effect of the Act is that customer choice is foreclosed once lawful service, including temporary construction service, has been provided to the premises.

Decided November 5, 1987

Rehearing denied November 24, 1987

James R. Lewis, L. Clifford Adams, Jr., for appellant.

Robert P. Edwards, Jr., Charles F. Palmer, for appellee.

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


author: Sognier, Judge.

text:
    74913, 74914.
    JONES v. COTTON STATES MUTUAL INSURANCE COMPANY; and vice versa.
    (363 SE2d 303)
   Sognier, Judge.

Mark O’Gwin was seriously injured when the automobile he was driving was struck by vehicles driven by Billy George Stapler and Tony Hamill. Evelyn Jones, as guardian for O’Gwin, accepted the $10,000 liability coverage available to Hamill in exchange for a covenant not to sue him and then brought suit against Stapler, who was uninsured, serving Cotton States Mutual Insurance Company pursuant to OCGA § 33-7-11 as the uninsured motorist carrier of the policies covering O’Gwin. Cotton States filed an answer in its own name but two years later dismissed its answer as to the Count I allegation regarding Stapler’s negligence, tendering payment to Jones of $50,000. Cotton States then moved for partial summary judgment as to Count II of Jones’ complaint seeking bad faith penalties and attorney fees. Jones moved for summary judgment both on Count II of her complaint and on Count III, as amended, for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). Jones appeals from the trial court’s order on her motion in Case No. 74913; Cotton States cross-appeals from that same order as to its motion for partial summary judgment in Case No. 74914.

1. Both parties contend the trial court erred by denying their respective motions for summary judgment regarding Count II of Jones’ complaint seeking bad faith penalties and attorney fees pursuant to OCGA § 33-7-11 (j). The trial court determined that the defenses raised by Cotton States failed to entitle it to summary judgment on Jones’ claim but held, nevertheless, that a question remained for the jury whether Cotton States acted in good or bad faith in denying Jones’ claim for over two years.

(a) Cotton States contends it was entitled to summary judgment on Count II because its defenses, two of which are the subject of enumerated errors, show no question of fact exists as to its good faith in denying Jones’ demand for payment. Cotton States first asserts the trial court erred by holding it was not entitled to a $10,000 “credit” for the liability insurance paid to Jones by the insurer of Hamill’s vehicle in exchange for a covenant not to sue. O’Gwin was insured under five policies issued by Cotton States with a total of $50,000 uninsured motorist (UM) coverage available to him. It appears uncontroverted that O’Gwin incurred medical expenses exceeding $185,000 as a result of the accident. Cotton States argues, however, that because Jones, on behalf of O’Gwin, accepted $10,000 in settlement of claims against Hamill, Stapler’s joint tortfeasor, it was entitled to write off that amount from the $50,000 it admits it owes O’Gwin in UM coverage.

In Wages v. State Farm &c. Ins. Co., 132 Ga. App. 79 (208 SE2d 1) (1974), as in the case sub judice, the plaintiff was injured by two tortfeasors, only one of whom was insured. The plaintiffs’ UM carrier in Wages sought to offset its coverage by the amount paid by the insured tortfeasor, in effect absolving it from all liability since the amount of the plaintiffs’ injuries, as determined by jury verdict there, did not exceed the insured tortfeasor’s liability coverage. In Wages, we affirmed the insured tortfeasor’s right to recover contribution and indemnification from the plaintiffs’ UM carrier and rejected the UM carrier’s argument that it could limit the applicability of UM coverage to a sum which was in excess of other insurance coverage. We held that “the purpose in providing for uninsured motorist protection was to afford the public generally with the same protection that it would have had if the uninsured motorist had carried the same amount of coverage under a public liability policy issued in his name.” Id. at 83 (1).

We reject Cotton States’ argument that it can “write off” the $10,000 Jones received from Hamill, thereby limiting the applicability of its UM coverage to the sum in excess of that $10,000, i.e., $40,000. Under its argument, had Hamill been insured by a policy providing $50,000 in liability coverage, Cotton States would have been completely absolved from any payment. This reasoning is incorrect under Wages, supra, in which the UM coverage Cotton States provides represents the amount O’Gwin would have been entitled to receive had Stapler been so insured. The extent of O’Gwin’s injuries is such that there is no question he would be entitled to recover both Hamill’s $10,000 and the $50,000 sum from Cotton States representing Stapler’s coverage. Thus, Cotton States’ attempt to distinguish Wages on the basis that that case involved common law contribution must fail.

Finally, Cotton States, in its arguments regarding OCGA § 33-7-11 (b) (1) (D) (ii), fails to recognize that the evidence is uncontroverted Stapler was an operator of an uninsured motor vehicle under OCGA § 33-7-11 (b) (1) (D) (i), not subsection (ii). Thus, there existed no amount of bodily injury liability insurance and property damage liability insurance for the uninsured motor vehicle operated by Stapler the “difference” of which Cotton States could deduct from the amount it provided O’Gwin. We do not agree with Cotton States that the amount paid by the other tortfeasor, Hamill, operating a separate insured vehicle, comes within the purview of this code section.

(b) Cotton States’ other defense enumerated as error here is its contention that it could not be held liable for bad faith penalties in the absence of a judgment entered by the jury against the uninsured motorist. Cotton States argues its liability for damages was not established until it dismissed its answer as to Count I of Jones’ complaint asserting Stapler’s liability. It is uncontroverted Cotton States tendered payment of the UM coverage to Jones within the statutory period after its dismissal of that part of its answer contesting liability.

In Wallis v. Cotton States Mut. Ins. Co., 182 Ga. App. 147 (354 SE2d 842) (1987), we noted that this court has interpreted the Uninsured Motorist provisions of OCGA § 33-7-11 to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known or unknown. The reasoning behind this interpretation, in the absence of explicit statutory language requiring such a condition precedent, is that since the insurer is liable for the amount which the insured “shall be legally entitled to recover” from the uninsured motorist, OCGA § 33-7-11 (a), that liability for damages should be ascertained in an appropriate forum before the bringing of a suit against the insurance company under such coverage. A demand for payment and refusal by the insurer prior to trial on the tort liability of the uninsured motorist was thus held not to eliminate the requirement that a judgment first be obtained against the uninsured motorist as a condition precedent to suit against the insurer. Id. at 148. “ ‘It follows that an insurer has no duty to accept an insured’s demand for payment of a claim prior to judgment being entered against an uninsured motorist. Inasmuch as the insurer is not required to make payment or settlement, it defies logic to argue that [the insurer] could have acted in bad faith in failing to pay the claim prior to judgment in the tort case. [Cit.]’ [Cit.]” Id.

We agree with Cotton States that filing of an answer or other response by an insurer in its own name pursuant to OCGA § 33-7-11 (d) does not constitute a waiver of any issues regarding the uninsured motorist’s tort liability but merely reflects the insurer’s position that, regardless of the underlying tort liability, the insurer is not liable under the policy of insurance. See Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980); see also Fire &c. Ins. Co. v. Spell, 183 Ga. App. 675 (359 SE2d 705) (1987). Thus, the filing of an answer by Cotton States in its own name did not by itself eliminate the requirement that a judgment first be obtained against Stapler, the uninsured motorist, as a condition precedent to a claim for bad faith penalties against the insurer.

However, “[s]uch provisions and conditions precedent to recovery upon the policy . . . are waived where the insurer has led the insured to believe that the insured will be paid without suit by its actions in negotiating for settlement or direct promises to pay. [Cits.]” U. S. Fidelity &c. Co. v. Lockhart, 124 Ga. App. 810, 811-812 (2) (186 SE2d 362) (1971). The record reveals that questions of fact exist as to the contested issue whether Cotton States, through its agent Howard Vandervliet, waived the condition precedent that judgment first be obtained against Stapler. Accordingly, we find no error by the trial court in denying Cotton States’ motion for partial summary judgment on this issue. Id. at 812 (3).

(c) Jones contends the trial court erred by denying her motion for summary judgment asserting no questions of fact exist that Cotton States did not act in good faith by denying her claim on behalf of O’Gwin. However, having held in Division 1 (b) above that questions of fact remain whether Cotton States waived the requirement that Jones establish Stapler’s liability by judgment before demanding payment from Cotton States, it follows that questions regarding Cotton States’ good or bad faith in denying Jones’ demand for payment remain for jury determination. See generally Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 53 (244 SE2d 573) (1978).

2. Jones contends the trial court erred by granting summary judgment to Cotton States regarding the amount of the bad faith penalty provided in OCGA § 33-7-11 (j). That statute states in pertinent part: “If the insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured and a finding has been made that such refusal was made in bad faith, the insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney’s fees for the prosecution of the case under this Code section.”

Jones argues that “25 percent of the recovery” means 25 percent of any judgment she might be awarded in the underlying tort action. The trial court construed the statute as providing for a penalty of 25 percent of the recovery of the total UM coverage for which Cotton States is liable, i.e., $50,000. We agree with the trial court’s interpretation.

“A cardinal rule of statutory construction is that courts must look to the purpose and intent of the legislature and construe statutes so as to implement that intent. [Cit.]” Enfinger v. Intl. Indem. Co., 253 Ga. 185, 186 (317 SE2d 816) (1984). The Legislature’s intent in enacting OCGA § 33-7-11 (j) was to provide a specific procedure and a limited penalty for noncompliance with OCGA § 33-7-11. See McCall v. Allstate Ins. Co., 251 Ga. 869, 871-872 (2) (310 SE2d 513) (1984). We agree with the trial court that the “recovery” allowed under OCGA § 33-7-11 (j) was intended to be limited to “recovery under this Code section,” i.e., recovery of the sums for which the UM carrier is liable. While we cannot ascertain from the history of this statute that the Legislature sought to avoid the “actuarial nightmare” foreseen by the trial court if UM carriers who refused to pay $10,000 in policy limits were held responsible for 25 percent of total damages incurred by the insured, we agree that by looking “ ‘to the natural and most obvious import of the [statute’s] language,’ ” Earth Mgt. v. Heard County, 248 Ga. 442, 444 (283 SE2d 455) (1981), the trial court correctly interpreted OCGA § 33-7-11 (j). Therefore, we find the trial court properly granted summary judgment in favor of Cotton States on this issue.

3. Jones contends the trial court erred by granting summary judgment to Cotton States on her Yost, supra, claims in Count III of her complaint. Jones asserted in Count III that Cotton States’ refusal to pay on her demand was not made on a good faith basis but was instead intended solely to prolong the litigation. She also alleged that the defenses Cotton States filed to support its denial of payment lacked any substantial justification. We need not address either the trial court’s holding that Yost cannot be retroactively applied, but see Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (4) (359 SE2d 920) (1987), or the trial court’s alternate holding that OCGA § 33-7-11 (j) provides the exclusive remedy for Jones under McCall, supra at 872, because even applying Yost here, Cotton States was entitled to summary judgment as a matter of law. Pursuant to Yost, an injured party may counterclaim for abusive litigation where the other party’s claim, defense, or other position involved, inter alia, “such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position. . . .” Id. at 96 (13). See also Sasser v. Mixon Contracting, 181 Ga. App. 710, 713 (2) (353 SE2d 525) (1987). As our holding in Division 1 (b) indicates, regardless how a jury may resolve the issues raised therein, Cotton States asserted a defense with respect to which there existed both a justiciable issue of law (regarding the effect of an insurer filing pursuant to OCGA § 33-7-11 (d) on the condition precedent set forth in Wallis, supra) and a justiciable issue of fact (regarding the alleged waiver of the condition precedent by Cotton States’ agent, Vandervliet). Therefore, we affirm the trial court’s grant of summary judgment to Cotton States on this issue. See generally Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2) (c) (307 SE2d 914) (1983).

4. We find no abuse of the trial court’s discretion in its denial of Jones’ motion for reconsideration. See generally Daniels v. McRae, 180 Ga. App. 732, 734 (2) (350 SE2d 317) (1986).

Decided November 9, 1987

Rehearing denied November 24, 1987

William Q. Bird, Joseph D. Perrotta, for appellant.

I. J. Parkerson, for appellee.

Judgments affirmed.

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


text:
    75023.
    HOSCH v. THE STATE.
    (363 SE2d 258)
   Beasley, Judge.

Defendant appeals his aggravated battery conviction, OCGA § 16-5-24.

1. Defendant contends that the evidence was insufficient to sustain his conviction because, while only the victim identified defendant as his assailant, three alibi witnesses testified that the defendant was with them away from the scene before, during and after the time of the occurrence.

“Where there is a conflict in the testimony of witnesses, their credibility is for the jury, and not this court, to decide.” Martin v. State, 95 Ga. App. 519 (98 SE2d 105) (1957). See Jamison v. State, 162 Ga. App. 635 (292 SE2d 515) (1982). “On appeal of a conviction based on a jury verdict” the appellate court examines “the evidence in a light most favorable to support that verdict” and resolves “all conflicts in favor of the verdict.” Anderson v. State, 245 Ga. 619, 622 (1) (266 SE2d 221) (1980).

Applying these precepts, the evidence was sufficient for a rational trier of fact to find the essential elements of the offense charged beyond a reasonable doubt. Magsby v. State, 169 Ga. App. 637 (1) (314 SE2d 473) (1984); Taylor v. State, 178 Ga. App. 817 (1) (344 SE2d 748) (1986) (Beasley, J., concurring specially).

2. Defendant contends that his trial counsel’s representation, which trial counsel described during the sentencing phase as a strategy of honesty, was ineffective because in following this tack he deliberately allowed the jury to be apprised of defendant’s prior record.

We therefore consider “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). See United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657) (1984).

Decided September 24, 1987

Rehearing denied November 24, 1987.

Carl P. Greenberg, for appellant.

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, Robert E. Statham III, Assistant District Attorneys, for appellee.

In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. Davenport v. State, 172 Ga. App. 848, 851 (2) (325 SE2d 173) (1984).

Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. Solomon v. State, 247 Ga. 27, 28 (1) (277 SE2d 1) (1981); Kervin v. State, 178 Ga. App. 601, 605 (3) (344 SE2d 441) (1986); Harrell v. State, 139 Ga. App. 556, 557 (2) (228 SE2d 723) (1976). Even if trial counsel’s strategy was flawed, it was not sufficient to render his representation ineffective under the law as expressed in the aforementioned cases.

Thus the trial court did not err in finding against defendant on his claim of ineffective counsel.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Birdsong, Chief Judge. Deen, Presiding Judge,

text:
    75145.
    LUNDY v. STUHR et al.
    (363 SE2d 343)
   Birdsong, Chief Judge.

Summary Judgment — Dog Bite. The facts giving rise to this appeal show that Mr. and Mrs. Stuhr were the owners of an Akita breed dog, a large dog, weighing in excess of 100 pounds. At Christmas time in 1985, the Stuhrs were boarding their dog in a kennel which provided boarding service. The appellant Lundy was a college student who worked during off-school time as a kennel attendant. He had worked at this vocation for several years, from the time he had been a high school student. This being a summary judgment, we will take the facts in the light most favorable to the respondent in determining if there was presented any unresolved issue of fact. The facts viewed in that light establish that the Stuhrs related to the veterinarian when the dog (Sam) was accepted that Sam was suspicious of females and may be prone to bite. Also Sam was described as an “escape artist” in that he would take any opportunity to escape his confinement. Thus when Sam was placed in a cage “run” in the kennel, a sign was placed on the outside of the cage door with warnings appearing thereon in different colored stickers. These stickers warned that Sam “doesn’t like girls,” was an “escape artist” and “will bite.”

Lundy stated in a deposition that he had been instructed how to handle large and small dogs who attempted to bite and to act in a “fluid” way (i.e., apparently no sudden movements) in order not to excite animals in his care. Lundy also candidly admitted that he had noticed and read the signs on the outside of Sam’s cage many times during the several days Sam had been a boarder prior to the attack which ultimately occurred. Lundy had walked and cared for Sam for several days and believed an excellent rapport had been established between himself and the dog. Sam had been placed in his exclusive care inasmuch as the dog was skittish around girls and Lundy was the only male attendant. On the day of the attack, Lundy approached Sam’s cage, spoke reassuringly to him and opened the cage door to replace or refill the water bowl inside the cage. Lundy observed the dog at the rear of the cage, tail wagging, ears up, and seated. He then observed the dog moving toward the door (and himself). Lundy apparently took no protective action when he saw the dog moving forward but continued to retrieve the water bowl. The dog then arrived near to Lundy (and the door) whereupon Lundy stood up and put his left arm up. The dog then attacked Lundy and inflicted numerous and severe bites until Lundy was able to drive the dog away with a kick and exit the kennel area.

Based upon these transactions, Lundy filed his complaint against the dog owners, the Stuhrs, alleging the dog was vicious, had a known propensity to bite, and attacked him without warning or provocation. The Stuhrs responded by contending that Lundy assumed the risk of the dangerous exposure to the dog. The trial court granted a motion for summary judgment to the Stuhrs but without assigning any legal basis therefor. It is this grant of summary judgment that forms the ground of this appeal. Held:

It is conceded in this appeal of the summary judgment granted the Stuhrs that a sole issue requires resolution, i.e., did the appellant Lundy assume the risk of a dog bite and thus eliminate any issue of liability in the Stuhrs for exposing Lundy to a “vicious” dog?

We commence our consideration of this question by recognizing certain basic experiential facts. It is in the common knowledge of the members of society that even domestic animals, when startled, are prone to defend themselves by biting. It is an unwise person who approaches an unknown dog and makes gestures toward that dog without first ascertaining the propensities of the dog. That such is common knowledge is manifested in this record by Lundy’s concession that he is aware that all dogs, large or small, may bite. It was for this reason that he received special training how to handle dogs and how especially to handle large dogs because of their ability to inflict serious injury. It is also because of the application of this obvious fact that it is generally held: “Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. ‘There need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession.’ Shearman and Redfield, Negligence, § 656, at page 1576.’ And see Annot. 76 ALR2d 9, 28.” Éyster v. Borg-Warner Corp., 131 Ga. App. 702, 705 (2) (206 SE2d 668).

In addition to what we, along with the trial court, could accept as the common knowledge of man, the trial court was presented with evidence that Lundy was well aware that this dog could be unpredictable around females, was more likely than some other dogs to attempt to escape from his cage, and even more significantly, that this dog would bite. While Lundy sought to limit the implication that the dog would bite to females, the sign prominently displayed on the exterior of the cage simply stated the dog “Will bite.” At the least this logically would require Lundy to exercise special caution to prevent the dog from escaping, to be aware that the dog was unpredictable at least as toward women, and might bite. Lundy’s own deposition testimony reflects that he entered the cage and observed the dog in an apparent docile condition. He then observed the dog moving toward either Lundy or the open cage door. Instead of speaking soothingly to the dog or making an attempt to withdraw and close the cage door, Lundy ignored the moving animal until the dog was right at the door and then suddenly stood up and raised his left arm.

We agree with an observation previously made by this court: “The plaintiff went into the situation with his eyes wide open. He saw the whole picture; he had the opportunity to measure the risks, if any, and was under no compulsion [to enter the cage and thereafter ignore the movement of the dog]. . . . Every adult is presumed to be endowed with normal faculties, both mental and physical. [Cit.]” Simmons v. Classic City Beverages, 136 Ga. App. 150 (4) (220 SE2d 734). No person should conduct himself in an irresponsible manner when even ordinary prudence would protect him from the likelihood of possible injury. At some point the danger and likelihood of injury becomes so obvious that actual knowledge by the plaintiff is unnecessary. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 732 (222 SE2d 105).

“ ‘Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. “The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded as tacitly or impliedly agreeing to take his own chances.” Prosser, Law of Torts, (2d ed.), p. 303, “Assumption of Risk,” § 55. “In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.” ’ ” Owens-Illinois v. Bryson, 138 Ga. App. 78, 79-80 (225 SE2d 475). See Prosser, Law of Torts (5th ed.), p. 480, “Assumption of Risk,” § 68. Here, the veterinarian voluntarily entered into a contract for care of the Stuhrs’ dog, with full knowledge of the risk, and informed his employee via the posting of signs on the dog’s run. Knowledge of the danger was apparent and the veterinarian and his assistant acquiesced in it by undertaking care of the dog.

Like the trial court, we will apply the rule that though commonplace issues of negligence and lack of ordinary care for one’s own safety normally are not susceptible of summary adjudication either for or against the claimant, in proper circumstances, the trial court can conclude as a matter of law that the facts establish assumption of the risk or contributory negligence on the part of the plaintiff where the evidence is plain, palpable and indisputable. Manheim Svcs. Corp. v. Connell, 153 Ga. App. 533, 534 (265 SE2d 862). In such circumstances, the conclusion ultimately must be drawn that known risk is ignored and thus assumed. Such is the case here. We find no error in the grant of summary judgment to the Stuhrs.

Judgment affirmed.

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

Deen, Presiding Judge,

dissenting.

Dogs, like humans, are sometimes good and sometimes bad. Dogs have on occasion been described as “faithful even in death.” See Turner v. Irvin, 146 Ga. App. 218, 219 (246 SE2d 127) (1978). On the other hand, dogs in some cases have also been equated with various despicable types of people, e.g., “ ‘dogs, and sorcerers, and whoremongers, and murderers, and idolaters. . . .’” Fincher v. Collum, 2 Ga. App. 740, 743 (59 SE 22) (1907). Regardless of which moral assessment of dogs is more appropriate, the dog owners in the instant case had knowledge of the dangerous nature of their dog Sam, who weighed over 100 lbs. We have held generally that, if this propensity to bite is known, a jury question is required when the animal actually attacks and bites.

Decided November 24, 1987.

Edgar L. Crossett III, Robert P. Crossett, for appellant.

L. Bruce Hedrick, Jr., Stephen L. Cotter, for appellees.

In light of the foregoing considerations, I must respectfully dissent from the majority opinion for the following two reasons. First, the doctrine of assumption of risk does not adequately cover situations such as that in the instant case, wherein appellant Lundy had previously exerted his best effort to establish rapport with the dog and to alleviate its dangerous propensities. The dog’s vicious nature, as alleged in the complaint, was clearly demonstrated by his instantaneous transformation from a friendly, tail-wagging pet into a veritable monster the moment he perceived his potential victim to be within easy reach and off guard.

Second, summary adjudication is inappropriate where issues of negligence and lack of ordinary care are involved. These are matters of fact which address themselves to the jury except where the evidence is “plain, palpable, and indisputable.” In the instant case there is ample room for dispute: there are evidentiary matters which should be fully examined and explored by impartial jurors. Until these factual matters have been addressed, it is impossible to resolve the dis-positive issues in accordance with law and equity. The case of Simmons v. Classic City Beverages, 136 Ga. App. 150 (4) (220 SE2d 734) (1975), relied upon by the majority, only involved dealing with and lifting three kegs of beer on the wall or in a two-door draft beer refrigerator. This is quite different from being required as an employee to feed and look after a huge animal with known dangerous propensities, as in the instant case. I would reverse the judgment below and remand the case for jury trial.

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