text:
    A89A1452.
    POLK v. THE STATE.
    (386 SE2d 682)
   Deen, Presiding Judge.

John Henry Polk was indicted for the murder of Dennis Lamar Williams and convicted of voluntary manslaughter. He appeals following the denial of his motion for a new trial, contending that the trial court erred in permitting the prosecutor to make two improper remarks during closing argument.

1. During the course of the trial, the court ruled that no mention of the sale of cocaine would be permitted when questioning certain witnesses because there was no evidence from the witnesses who were present at the crime scene that they knew the basis for the debt which precipitated the quarrel between the men. The defendant testified that Williams owed him $300 for three dresses which he had purchased from his boutique.

Following an objection to the oral argument, the court excused the jurors and heard argument on the issue. The objection was sustained, and defense counsel moved for a mistrial. When the jury returned to the courtroom, the court instructed them that there was no evidence upon which to make an inference that the incident was based upon a drug transaction, and directed them to strike the statement from their minds and not to consider it during their deliberations. The prosecutor, however, was not rebuked for improper argument.

The grant or denial of a mistrial is within the sound discretion of the trial court, and this court will not reverse this decision unless there is a manifest abuse. Harrell v. State, 253 Ga. 474, 476 (321 SE2d 739) (1984). When counsel makes statements of prejudicial matters which are not in evidence, “it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.” OCGA § 17-8-75.

In Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), the court adopted a “ ‘highly probable test,’ i.e., that it is ‘highly probable that the error did not contribute to the judgment.’ [Cit.] . . . The test compels a judge to go beyond a first glance for affirmance or a fleeting glimpse for reversal. It compels him to exercise his mind in the exercise of his discretion, to go beyond the appearances of the result to an examination of what causal links there may be between error and the judgment.”

After reviewing the evidence, the nature of the prosecutor’s comment, and the curative instructions given to the jury, we find that it is highly probable that the error alleged did not contribute to the jury’s verdict. Appellant did not deny that an altercation occurred, but claims that he acted in self-defense. He testified that the victim pursued him into the parking lot, cursing and threatening him. When he entered his automobile, the victim brought a gun out of his pocket and, fearing for his life, he struggled with him. During the struggle several shots were fired, and the victim fell to the pavement. Appellant then drove off in his automobile. It is highly unlikely that the prosecutor’s remarks influenced the jury in reaching its verdict. We find no abuse of the trial court’s discretion in denying the motion for a mistrial.

2. The prosecutor also commented that none of the defense witnesses was willing to talk to the police or the district attorney’s office. Counsel objected, contending that there was no evidence of any witness refusing to talk to the State.

Decided September 5, 1989

Rehearing denied September 25, 1989

Ray C. Norvell, Sr., for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Assistant District Attorney, for appellee.

The transcript shows that one of the defense witnesses, who was present at the shooting scene, did give a statement to the State’s investigator, that the four other witnesses that the State claims were uncooperative either did not voluntarily inform the District Attorney’s office of what they had witnessed or were not approached for questioning prior to trial.

“ ‘[A] sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions. . . .’ [Cits.]” Carver v. State, 185 Ga. App. 436, 438 (364 SE2d 877) (1987). As defense counsel made none of these motions, we find no error.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A1473.
    MERRILL v. THE STATE.
    (386 SE2d 684)
   Deen, Presiding Judge.

The appellant, Marc Merrill, was arrested for driving under the influence on August 3, 1988. On August 9, 1988, Merrill filed with the state court clerk an “Omnibus Motion,” the twenty-fifth paragraph of which requests “[t]o enter on the minutes of the court that the defendant had demanded trial by jury and that he be so tried during this term of court or the next succeeding regular court term thereafter; and upon failure to so proceed, that the defendant be absolutely discharged and acquitted of the offenses so charged.” An accusation against Merrill was not filed until October 20, 1988. His case was placed on the December 12, 1988, jury calendar, but continued to the January 23, 1989, calendar.

On January 20, 1989, Merrill filed a motion for discharge and acquittal on the basis that he had not been tried according to his speedy trial demand made pursuant to OCGA § 17-7-170. The trial court denied the motion on March 16, 1989, called the case for trial on March 27, 1989, and then entered an order reflecting that the case had been called within two terms. This appeal followed. Held:

Decided September 5, 1989

Rehearing denied September 25, 1989

Robert S. Devins, for appellant.

Ralph T. Bowden, Jr., Solicitor, Judith C. Emken, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

Merrill’s demand for trial, filed before the accusation was filed in the state court, was premature, and the trial court thus did not err in denying his motion for discharge and acquittal. See State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989). Moreover, even if it had been timely, the motion would properly have been denied on its merits. In Kramer v. State, 185 Ga. App. 254 (363 SE2d 800) (1987), where the defendant filed a motion styled, as “Jury Demand,” which included a paragraph containing essentially the same language as the twenty-fifth paragraph in Merrill’s “Omnibus Motion,” this court held that the defendant’s motion was insufficient to invoke OCGA § 17-7-170. The primary reason was that the caption of the motion obfuscated the nature of the pleading. The same reasoning would be applicable in the instant case.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A1542.
    WILDER et al. v. THE STATE.
    (386 SE2d 685)
   Banke, Presiding Judge.

The three appellants herein were jointly tried and convicted of trafficking in cocaine and of possessing a firearm during the commission of an offense involving illegal drugs. See OCGA § 16-11-106 (b) (5). They bring this appeal from the denial of their motion to suppress evidence seized during a warrantless search of an automobile which they were occupying at the time of their arrest.

The arresting officer testified that his attention was drawn to the vehicle in question because it had “no valid license” plate but only a “paper drive-out tag” containing the name of an automobile rental agency. After stopping the vehicle, he asked the driver, appellant Drains, for her driver’s license and proof of insurance, whereupon she produced an expired Georgia driver’s license and a car rental contract. At this point, the officer detected the odor of marijuana emanating from the car. He stated that when he questioned Drains about this, she and the other three occupants of the vehicle became “very nervous and fidgety.” He then asked Drains to step out of the vehicle and requested the assistance of a back-up unit. Subsequently, the remaining occupants were asked to exit the vehicle; however, before appellant Wilder got out, he handed Drains a brown paper bag, which the latter placed on the ground under the driver’s side of the car. This bag was seized and was found to contain a quantity of “crack-cocaine” in excess of 28 grams. A .45-caliber revolver was subsequently seized from the handbags carried by appellants Drains and Rose. Held:

Decided September 5, 1989

Rehearing denied September 25, 1989.

Harold S. Gulliver, Matthew A. Towery, for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, David Wright, Assistant District Attorneys, for appellee.

The appellants contend that the initial stop and subsequent search of the vehicle were unlawful because they were conducted without probable cause. The stop of the vehicle was clearly authorized pursuant to OCGA § 40-2-8 because it was being operated without a license tag. Once the stop was effected, Drains was subject to custodial arrest for operating a motor vehicle without a valid driver’s license, see OCGA §§ 40-5-20 (a) and 40-5-120 (7); and the search of the passenger compartment was authorized incident to that arrest. See State v. Gilchrist, 174 Ga. App. 499 (2) (330 SE2d 430) (1985); Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986); Dixon v. State, 180 Ga. App. 222 (4) (348 SE2d 742) (1986).

Moreover, with respect to the cocaine, Drains affirmatively abandoned it by placing it under the vehicle within plain view on a public street. “Neither abandoned property, nor items in plain view of law enforcement officers who (as in the instant case) are where they have a right to be, can be the subject of a motion to suppress when the abandonment of the evidence and the simultaneous placing of it in plain view occurs during the course of a legal stop. [Cits.]” State v. Howell, 180 Ga. App. 449, 451 (349 SE2d 476) (1986). It follows that the motion to suppress was properly denied.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1552.
    ADAMS v. WINN-DIXIE STORES, INC.
    (386 SE2d 686)
   Banke, Presiding Judge.

The appellant sued to recover for injuries she allegedly sustained when she slipped on a floor mat and fell while entering the appellee’s store. She appeals the grant of the appellee’s motion for summary judgment.

Decided September 5, 1989

Rehearing denied September 25, 1989.

Michael R. Casper, for appellant.

It was raining at the time of the incident, and there was a “Caution-Wet Floor” sign in place at the entrance to the store. The appellant maintained that she did not see this sign; however, there is no suggestion that she was prevented or distracted from seeing it due to some other condition existing on the premises. The appellant did not notice the presence of water on the floor until after she fell, at which time She observed that it was “deep enough to form a puddle.” The store manager averred that he had checked the condition of the floor at the entrance to the store “shortly before” the appellant fell and that he had mopped the floor in order to minimize the accumulation of rain water. His testimony in this regard was not disputed. There was no allegation that the floor mat at the entrance to the store was in any way defective. Held:

“It is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet; it is a matter of common knowledge that some water will normally be present where shoppers pass during rainy weather. [Cits.] It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. [Cit.] The duty owed to such invitees is one of ordinary care, or to protect against an unreasonable risk of harm. [Cit.] The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate. [Cits.]” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (332 SE2d 304) (1985). See also Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (138 SE2d 77) (1964); Brownlow v. Six Flags Over Ga., 172 Ga. App. 242 (322 SE2d 548) (1984).

The present case is controlled by Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986), wherein we held that a “wet floor” sign placed at the entrance to a store, combined with periodic mopping of the entrance area during rainy periods to prevent an unreasonable accumulation of rain water, constituted reasonable and ordinary care on the proprietor’s part. Compare Rodriquez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291) (1987). Based on the evidence of record in the present case, the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Hulsey, Oliver & Mahar, Joseph D. Cooley III, for appellee.


text:
    A89A1559.
    BRANNON v. SIMPSON.
    (386 SE2d 687)
    Decided September 5, 1989
    Rehearing denied September 25, 1989

      Chamberlain, Hrdlicka, White & Johnson, Richard N. Hubert, for appellant.
   Deen, Presiding Judge.

Louise Brannon brought a tort action against her father, Mayes, and co-executors of her grandfather’s estate (her uncle, J. W. Simpson, Jr., and her husband as her mother’s representative), alleging breach of fiduciary duty as to her remainder interest in certain real property. Brannon’s mother died in 1972, and Simpson and Mayes (who had managed the properties for the estate) showed her the properties in which she owned a one-half interest. A dispute arose between the parties over her interest in these and other properties which she believed had originally been a part of the estate. Simpson filed a partitioning action, and Brannon later attempted to file a counterclaim against Simpson individually and in his representative capacity alleging breach of fiduciary duty. The Bartow County Superior Court refused to allow the counterclaim to be filed by amendment, relying upon Rule 13 (f) of the Civil Practice Act (currently OCGA § 9-11-13 (f)), and held that Brannon and her attorney knew of the existence of the counterclaim at the time that the answer was filed, but failed to file it, and that this failure was not due to oversight, inadvertence or excusable neglect. This ruling and the rulings upon other orders in the case were appealed. Three of the thirty-three enumerations of error pertained to the dismissal of the counterclaim. In Brannon v. Simpson, 238 Ga. 351 (232 SE2d 841) (1977), the court affirmed all the rulings of the trial court in a two-sentence opinion.

In the instant case, the trial court held that Brannon’s claim is barred by the doctrine of res judicata and dismissed the case. Held:

We fully agree with the decision of the court below. We have examined the record submitted to the Supreme Court in Brannon v. Simpson, supra, and find the issue to be controlled by the doctrine of res judicata. Simpson’s executrix has the requisite privity of estate to assert this defense. College Park Land Co. v. Mayor of College Park, 48 Ga. App. 528 (173 SE 239) (1934).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

W. Morgan Akin, R. Lamar Brannon, for appellee.


author: Banke, Presiding judge.

text:
    A89A1570.
    FINE et al. v. APAC-GEORGIA, INC. et al.
    (386 SE2d 692)
   Banke, Presiding judge.

The appellants’ decedent was killed when an automobile in which he was a passenger hydroplaned on wet pavement, turned broadside into its lane of traffic, and was struck by a flatbed wrecker which had been following behind it. The appellants brought this wrongful-death action against the appellees herein — two highway contractors who had been performing work at the location in question — alleging that these contractors had breached a duty to the members of the traveling public “by negligently and recklessly engaging in acts and omissions such as allowing [a] pond of water to occur on the roadway, by failing to drain the water after it accumulated, by failing to warn motorists of the existence of the water, by failing to have a proper drainage plan for the construction zone, and by failing to maintain the drainage system that existed.”

In addition to other damages, the appellants sought to recover the expenses of administering the decedent’s estate in the approximate amount of $5,000,000, some $1,800,000 of which they had evidently paid to themselves as executors’ commissions. They also sought to recover approximately $25,000,000 in estate taxes paid by the estate or, in the alternative, to recover approximately $2,000,000 in taxes which allegedly could have been saved had not the decedent’s untimely death prevented him from performing adequate estate planning. This appeal is from the trial court’s grant of summary judgment to the appellees on the issue of liability.

The accident occurred at approximately 1:10 p.m. on March 13, 1986, at the junction of Interstate Highways 75 and 85 south of Atlanta. It had rained heavily that morning, and a light rain continued to fall at the time of the accident. Because of the rain, the appellees had not engaged in any construction activities at the site on the day in question. The driver of the decedent’s vehicle testified that his car began to hydroplane uncontrollably as he proceeded under a bridge and around a slight curve. However, he further testified that he did not recall having seen any water standing in the roadway or having heard any such water hitting up under the bottom of the car.

In support of their respective motions for summary judgment, each appellee submitted the affidavit of the project manager in charge of its construction activities at the location in question. In those affidavits, which were virtually identical, the project managers averred that the work being performed at the site was being performed pursuant to the plans and specifications of the Georgia Department of Transportation (DOT); that “all drainage structures for which [the respective appellees] had responsibility” had been “inspected, cleaned, repaired and maintained ... up to and through [the date of the accident] according to plans and specifications, and directions of the [DOT]”; that the respective appellees had no knowledge prior to the accident “of any automobile accidents, if any, at or around the area of the Interstate 85 overpass on Interstate 75 where [the] decedent was killed”; and that they had “no knowledge of any pond or accumulation of water, if any, ... in the roadway at the accident site prior to the accident.” The appellants responded with the affidavit of a motorist who had traversed the same stretch of highway approximately two hours prior to the accident and who had observed at that time an accumulation of water underneath the bridge in question, extending “across the entire right-hand lane of traffic and into the left-hand lane.” This witness stated that his vehicle had also hydroplaned at this location, causing him “almost [to lose] control of the car.” He further stated that as he was driving back by this location approximately two hours later in the opposite direction, he observed that a “collision had apparently occurred at the site where I had hydroplaned, as there was a damaged car and flatbed wrecker stopped at the site and a policeman directing traffic.”

While ruling that the foregoing affidavit raised a fact issue “as to whether a pond of water did exist on the roadway,” the trial court nevertheless granted the appellees’ motion for summary judgment, based on a further determination that the appellants had failed to produce any evidence either that the appellees had caused this accumulation of water to occur or that it had been this accumulation of water which caused the accident. The appellants contend on appeal that the trial court thereby erroneously shifted to them, as respondents on motion for summary judgment, the burden of coming forward with evidence to support the allegations of their complaint, rather than placing the burden on the appellees, as movants, of piercing those allegations. Held:

1. Because the evidence established without dispute that it had been raining heavily earlier during the day but that only a light drizzle was falling at 1:30 p.m., when the accident occurred, and because the decedent’s driver testified repeatedly that he had neither seen any water standing in the roadway at the location in question nor heard any water “hitting up under the bottom of [the] car,” we do not believe that the evidence that a puddle of water was present on the road two hours before the accident can be considered sufficient, in and of itself, to give rise to an inference that such a condition still existed at the time of the accident. No testimony to that effect was elicited from anyone who was present at the scene during or immediately following the accident, including the other driver involved in the collision and the police and emergency medical personnel who later arrived at the scene. While there is a police report in the record which reflects the existence of an accumulation of water in the roadway at the location where the accident occurred, there is no indication in this report that the officer who prepared it observed such an accumulation himself. Moreover, no foundation was laid for the admission of this report as evidence. “A police report may be admissible as a business entry . . . where a proper foundation is laid, but when it includes hearsay statements, opinion evidence, and conclusions, it is not generally admissible.” Pickett v. State, 123 Ga. App. 1 (2) (179 SE2d 303) (1970). Compare Stubbs v. Daughtry, 115 Ga. App. 22 (1) (153 SE2d 633) (1967) (holding that the admission of such a report could not be considered reversible error where the officer who had prepared it was present in court and testified personally regarding the observations and opinions contained therein). It follows that the only probative evidence of record in this case regarding the presence or absence of standing water on the highway at the time of the accident is the testimony of the decedent’s driver, who stated unequivocally that he neither saw nor otherwise perceived any such accumulation.

2. Even assuming arguendo that a fact issue exists as to whether there was a puddle of water in the roadway at the location and time of the accident, the appellees were entitled to summary judgment based on the absence of any evidence that the existence of this condition could have been anticipated or prevented by them through the exercise of due care. As previously indicated, the affidavits submitted by the appellees’ project managers established without dispute that the appellees had not participated in the design of the improvements but had merely implemented the design specifications of the DOT. These affidavits further established without dispute that the appel-lees had “inspected, cleaned, repaired and maintained all drainage structures for which [they] had responsibility up to and through [the date of the accident] according to the plans and specifications, and directions of the [DOT],” and also that the appellees had received no notice of any accumulation of water at the location in question prior to the accident. It has been held that a contractor on a state highway project normally cannot be held liable for injuries to the public resulting from the non-negligent performance of the DOT’s specifications and directives. See C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150, 151 (361 SE2d 34) (1987). Accordingly, the affidavits submitted by the appellees’ project managers must be considered sufficient to pierce the allegations of negligence contained in the appellants’ pleadings and to shift to them the burden of coming forward with at least some evidence to support those allegations. Id. See also PPG Indus. v. Genson, 135 Ga. App. 248 (217 SE2d 479) (1975).

We find the appellants’ reliance on Parlato v. MARTA, 165 Ga. App. 758 (1) (302 SE2d 613) (1983), as authority for a contrary conclusion to be inapposite. The plaintiffs in that case alleged that a government contractor had negligently undermined the foundations of their buildings during the performance of the contract, thereby causing the buildings to crack and settle. The contractor moved for summary judgment on the basis of the affidavit of a construction superintendent who, though he had not worked on the project throughout the entire period of construction, averred that all of the work on the project had been done “using reasonable care in accordance with proper, generally accepted construction methods, in a workmanlike manner, and in accordance with the plans and specifications of our contract.” These averments were held insufficient to negate the allegations of negligence contained in the complaint, both because they amounted to nothing more than a conclusory denial of such negligence and because the affiant had not worked on the project from its inception and thus was not in a position to know whether all of the work had been performed in a non-negligent manner. In contrast, the project managers whose affidavits are at issue in the present case averred without dispute that they had worked on the project from its inception. Moreover, their averments amount to more than a con-clusory denial that the appellees were guilty of any negligence whatever in connection with the construction; they specifically address the appellants’ allegations of negligence with regard to the design and maintenance of the drainage system at the specific location and time under consideration.

We similarly find nothing in the remaining cases cited by the appellants which can be considered authority for their position that the appellees’ affidavits were ineffective to shift to them the burden of coming forward with some modicum of evidence in support of the allegations of negligence contained in the complaint. In Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100 (1) (183 SE2d 15) (1971), we held that the affidavit of a corporate official to the effect that his company had not had any dealings with the plaintiff was insufficient to rebut the plaintiff’s contrary allegation, where the affidavit neither recited that it was based on personal knowledge nor revealed the factual basis for the averment in question. The issue in Lockhart v. Beaird, 128 Ga. App. 7 (195 SE2d 292) (1973), was whether certain averments by a car owner detailing the steps he had taken to keep his vehicle in running condition necessarily established that he had used due care in this regard in the face of evidence that he had been forced to abandon the vehicle on the highway following simultaneous tire and mechanical failure. The affidavits in the present case do contain a showing that they are based on personal knowledge; and, while there is no set standard regarding what constitutes due diligence in maintaining a motor vehicle, it has been held that a building contractor cannot normally be held liable to third persons for injuries caused by design defects “ ‘if he follows the directions given him and is not guilty of negligence in the particular manner in which he performs the specific work he contracted to do.’ ” PPG Indus. v. Genson, supra, 135 Ga. App. at 251, quoting from Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607) (1908). We accordingly hold that the trial court did not err in granting the appel-lees’ motion for summary judgment in the present action.

Decided September 7, 1989

Rehearing denied September 25, 1989

Kilpatrick & Cody, Matthew H. Patton, Judith A. Powell, for appellants.

Thomas F. Allgood, Jr., Scoggins, Ivy & Goodman, Charles H. Ivy, George H. Duncan, Jr., Luke A. Kill, for appellees.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1355.
    REID et al. v. BRAZIL et al.
    (387 SE2d 1)
   Deen, Presiding Judge.

Odis Brazil underwent what he contends was an unnecessary surgical hernia repair on September 25, 1985. On September 14, 1987, he and his wife commenced a medical malpractice action against the appellants, Dr. William Reid and The Georgia Surgery Clinic. In the complaint, the Brazils indicated that an expert’s affidavit would be filed within 45 days. The expert affidavit was actually filed on October 30, 1987, the 46th day after filing of the complaint. The appellants moved to dismiss the complaint on the basis of the late filing, but before that motion could be ruled on, the Brazils voluntarily dismissed the complaint without prejudice.

The Brazils refiled their complaint on February 29, 1988, after the limitation period had run but within the 6-month period for refiling authorized by OCGA § 9-2-61 (a). Contemporaneously with the filing of the complaint, the Brazils filed an expert’s affidavit, which contained identical averments to the previous affidavit; however, the last page of the affidavit bearing the affiant’s signature, the date of execution, and the oath and signature of the notary public, was stamped as filed on March 1, 1988 (possibly because it had gotten detached from the remainder of the affidavit, or possibly because the Brazils filed it one day late). The appellants moved for summary judgment on the basis of untimely filing of an expert’s affidavit, but the trial court denied the motion, finding that only the last page of the affidavit was filed late and that filing of the last page one day late sufficed to amend the defect. This appeal followed. Held:

Decided September 5, 1989

Rehearing denied September 25, 1989

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen H. Sparwath, for appellants.

Arrington & Hollowell, Carlton R. Stewart, for appellees.

1. Failure to file an expert’s affidavit with a complaint for professional malpractice, as required by OCGA § 9-11-9.1, is an amendable defect, at least where the plaintiff has obtained the affidavit prior to filing the complaint and the failure to file the affidavit was the result of a mistake. St. Joseph’s Hosp. v. Nease, 259 Ga. App. 153 (377 SE2d 847) (1989). That is the case here. Amendments to the pleadings may be filed at any time before entry of a pretrial order without permission of the court. OCGA § 9-11-15 (a); Newbern v. Chapman Funeral Chapel, 158 Ga. App. 790 (282 SE2d 379) (1981). In the instant case, if the trial court chose to consider the filing of the last page of the expert’s affidavit as an amendment to the pleadings, so as to do “substantial justice,” we find no error. OCGA § 9-11-8 (f).

2. The appellants also contend that the present renewal action was barred by the statute of limitation, because the appellees’ failure in the original action to file the expert’s affidavit either contemporaneously with the filing of the complaint or within the 45-day grace period rendered the original action void ab initio. However, the Supreme Court has recently held that failure to file an expert’s affidavit contemporaneously with the complaint does not render a complaint void ab initio. Patterson v. Douglas Women’s Center, 258 Ga. 803 (374 SE2d 737) (1989). See also Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988). We conclude likewise, with regard to the failure to file within the 45-day grace period.

3. The appellees’ motion to dismiss the appeal is denied.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Carley, Chief Judge.

text:
    A89A0807.
    THE STATE v. WEBB.
    (386 SE2d 891)
   Carley, Chief Judge.

An accusation was filed, charging appellee with possession of marijuana in violation of the Georgia Controlled Substances Act. He filed a pretrial motion to suppress the marijuana which had been seized from his automobile. The trial court granted appellee’s motion and the State appeals.

1. At the hearing on the motion to suppress, only the arresting officer testified. His testimony was as follows: About 2:00 a.m., appellee turned from one road onto another and began to approach a roadblock that had been set up a short distance from the intersection. Appellee made a u-turn before reaching the roadblock, but the officer, who had observed appellee’s seemingly evasive action, stopped him. After being stopped, appellee left his vehicle to meet the officer in front of the patrol car. After checking appellee’s driver’s license and insurance card, the officer approached appellee’s vehicle and, using a flashlight, looked through a window. From his vantage point, the officer recognized the odor of marijuana and saw a partially smoked marijuana cigarette in a hemostat on the front seat of appellee’s car. The officer believed that the cigarette contained marijuana because he had previously seen a hemostat used as drug paraphernalia and he had smelled the odor of marijuana before. The officer then arrested appellee for possession of marijuana and for making an illegal u-turn. The officer asked, but was refused permission to search appellee’s car. Pursuant to standard procedure, the officer then inventoried and impounded appellee’s vehicle prior to towing. In the course of that inventory, the officer found a small tupperware container which held a set of scales and a small amount of additional marijuana.

The trial court concluded that, insofar as appellee’s u-turn was technically not in violation of OCGA § 40-6-121, the evidence should be suppressed as the fruit of an illegal arrest. However, the issue of whether appellee’s u-turn was or was not illegal is not the relevant inquiry in the determination of whether the marijuana should be suppressed. The State does not seek to justify the warrantless search and seizure solely as incidental to appellee’s arrest for a traffic offense. Under the evidence, the following is undisputed: Appellee was originally stopped because he had made a possible illegal u-turn in an apparent effort to evade a roadblock; during the course of this traffic stop, the officer observed marijuana in plain view in the interior of appellee’s car; and, appellee was then arrested for both the purported traffic offense and the drug offense. If the original stop of appellee’s vehicle was justified undér the existing circumstances, then the subsequent seizure of the marijuana and arrest of appellee for possession of that contraband may yet be valid, notwithstanding the illegality of appellee’s eventual arrest for the traffic offense. “If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. It is not the officer’s function to determine on the spot such matters as, e.g., jurisdiction or the legal niceties in definition of a certain crime, for these are matters for the courts. [Cits.] The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable ([cit.]) and not arbitrary or harassing. [Cit.]” McConnell v. State, 188 Ga. App. 653, 654 (1) (373 SE2d 111) (1988).

“ ‘[Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’ [Cits.]” Jones v. State, 187 Ga. App. 421, 423 (370 SE2d 784) (1988). “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.” Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612) (1972). Although an officer’s honest belief that a traffic violation has actually been committed in his presence may ultimately prove to be incorrect, such a mistaken-but-honest belief may nevertheless demonstrate the existence of “at least an articulable suspicion and reasonable grounds for the stop.” McConnell v. State, supra, 653 (1). Moreover, “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea. . . .” Sibron v. New York, 392 U. S. 40, 66 (88 SC 1889, 20 LE2d 917) (1968). Accordingly, regardless of whether appellee’s act of making a u-turn was or was not technically a traffic violation, it was nevertheless clearly a sufficiently suspicious and deliberately furtive response to the roadblock so as to give the officer at least a reasonable suspicion of appellee’s criminal activity and to warrant further investigation. Therefore, the original stop of appellee’s vehicle was authorized and, if the officer did not subsequently violate appellee’s Fourth Amendment rights, the motion to suppress should not have been granted. See State v. Noble, 179 Ga. App. 785 (347 SE2d 722) (1986). See generally Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986).

2. “ ‘The (plain view) doctrine will support a warrantless search and seizure if the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating. (Cits.)’ [Cit.]” Gabbidon v. State, 184 Ga. App. 475, 476 (2) (361 SE2d 861) (1987).

An officer is “ ‘where he is entitled to be ... so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point. [Cits.]’ [Cit.] . . . ‘The viewing [itself] need not be motivated by any articulable suspicion. . . .’” Galloway v. State, 178 Ga. App. 31, 33-34 (342 SE2d 473) (1986). Since the original investigatory stop of appellee was authorized, the officer was clearly in a lawful position when he viewed the interior of the vehicle. “The use of a flashlight to expose to better light what would otherwise be visible to one who simply looks through the car window does not make the viewing any more of a search or any less of a plain view.” State v. Hodges, 184 Ga. App. 21, 25 (360 SE2d 903) (1987). The discovery was inadvertent even though the officer may have suspected that he would find incriminating evidence when he looked in appellee’s vehicle. State v. Scott, 159 Ga. App. 869, 871 (2) (285 SE2d 599) (1981). The objects viewed by the officer were immediately seen to be incriminating. The presence of the partially smoked marijuana cigarette alone incriminated appellee and furnished probable cause for his arrest. See State v. Hodges, supra at 24-25; Rowe v. State, 184 Ga. App. 437 (361 SE2d 705) (1987). The hemostat and the odor of marijuana were likewise incriminating. “[A]n officer need not rely only on sight but any of his senses may be used. [Cit.]” Griffin v. State, 180 Ga. App. 189, 190 (348 SE2d 577) (1986).

Decided September 25, 1989.

Frank C. Winn, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellant.

Joanne E. Elsey, for appellee.

“Immediately [after the investigatory stop,] the plain view doctrine came into effect with the smelling of the odor of marijuana and observing the . . . paraphernalia [and the marijuana cigarette] in the automobile.” Jones v. State, 156 Ga. App. 730, 731 (275 SE2d 778) (1980). “Thus, neither the stopping of [appellee] nor the observation of certain items of property in plain view . . . tainted any subsequent search of [appellee’s] vehicle.” (Emphasis in original.) Jones v. State, 187 Ga. App., supra at 423.

3. The arrest of appellee for possession of marijuana was based on probable cause and was not rendered illegal by the officer’s previous actions. The subsequent inventory search of appellee’s vehicle, which led to the discovery of additional marijuana, did not violate his Fourth Amendment rights. See Jones v. State, 187 Ga. App., supra at 423-24.

4. Based upon the undisputed evidence, the grant of the motion to suppress was erroneous and is reversed.

Judgment reversed.

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


text:
    A89A0816.
    ROBBINS v. THE STATE.
    (387 SE2d 18)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of driving under the influence and possession of less than one ounce of marijuana. Before judgments of conviction and sentences were entered on the jury’s guilty verdicts, appellant filed a motion in the trial court for permission to file an “extraordinary appeal.” The trial court granted this motion, extending to appellant “the right to file an extraordinary appeal to the appellate courts of this State to determine the appropriateness of [the trial court] entering its judgment . . . .” Pursuant to this grant of his motion for an “extraordinary appeal,” appellant has filed this direct appeal to this court.

Decided September 25, 1989.

H. J. Thomas, Jr., for appellant.

Daniel W. Lee, Solicitor, for appellee.

There is no authority for the trial court to grant an appellant the right to file an “extraordinary appeal” to determine whether or not judgment should be entered in a case. The Appellate Practice Act provides, in relevant part, that appeals may be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below. . . .” (Emphasis supplied.) OCGA § 5-6-34 (a) (1). This case is pending in the trial court until such time as the trial court enters its judgment of conviction and sentence on the jury’s verdicts of guilt. See Crolley v. State, 182 Ga. App. 2 (1) (354 SE2d 864) (1987). There being no final judgment of the trial court from which appellant can bring, a direct appeal, it follows that this unauthorized premature appeal must be dismissed.

Appeal dismissed.

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


author: Beasley, Judge.

text:
    A89A0980.
    ANDERSON v. THE STATE.
    (387 SE2d 148)
   Beasley, Judge.

Anderson, indicted with his wife Donna, appeals his convictions for possession with intent to distribute cocaine and marijuana (OCGA § 16-13-30 (b)). She pled guilty to misdemeanor possession of marijuana.

1. Defendant’s brief and enumerations of error were due to be filed on February 27. None having been received, an order on March 13 directed the filing within five days. The enumerations of error were filed on March 21; no brief was filed until March 27. No explanation was made then or since for the failure to comply with the statute and the rules of this court. OCGA § 5-6-48 (b); Rules 14 and 23, as amended effective March 1, 1989. After due consideration, the State’s motion to dismiss the appeal is denied. No contempt will be charged because of the closeness in time to the rules’ amendment.

2. Defendant challenges the legality of the seizure after one Daniels was confronted.

The evidence, which is not disputed by Anderson, showed that Federal Express discovered a package in one of its overnight drops in Houston, Texas, on July 14. It did not contain the required prepayment, and the name of the sender and the phone number given proved false. Pursuant to the terms of its contract with all of its users, Federal Express agents in Texas opened the package and discovered a half-pound of marijuana. The package was addressed to “D. Anderson” at a Norcross address. Federal Express security agents contacted Texas officers who called Gwinnett officers. The decision was made to have Federal Express forward the package through its normal channels to Atlanta where a controlled delivery would be made.

The package arrived in Atlanta and was picked up by Federal Express security agent Clark who called Officer Schwarzer to meet him at the Federal Express office in Gwinnett the morning of July 16. Clark was opening the package as Officer Schwarzer entered the office. The package and the marijuana were photographed and resealed. Clark and Schwarzer, dressed as a Federal Express agent, then delivered the package to the address given, an apartment occupied by defendant, his wife Donna, and their three-year-old son. Defendant answered the door, was asked if he were “D. Anderson,” and answered that he was not but could sign for the package, which he did.

Officer Schwarzer and his sergeant then obtained a search warrant, leaving four officers outside in automobiles to watch the apartment. They left around noon. Shortly thereafter, the remaining officers saw Daniels, then unknown, drive up, park and go into the apartment. He remained for about twenty minutes and left. The officers, afraid he was leaving with some of the marijuana, stopped him as he descended the stairs. They identified themselves as police. Defendant was watching from the open apartment door and started to close it. The officers, afraid he would destroy evidence, told him they were waiting for a warrant to search the apartment. They entered, taking Daniels along. They observed a small amount of marijuana on a living room table and a baggie containing marijuana sticking out of Daniels’ pocket. Both defendant and Daniels were arrested. The officers checked the apartment for security and found only defendant’s son.

Officer Schwarzer returned with the search warrant at 2:15 p.m. In executing it, the officers found, in the master bedroom, marijuana rolled in a newspaper next to defendant’s bed; six small plastic bags containing marijuana in a Buster Brown bag; another small plastic baggie of marijuana in Mrs. Anderson’s drawer; two scales and an orange plastic bag containing small envelopes and baggies. In the child’s room, a strongbox was found under the bed, holding eight small baggies containing cocaine. Also found were sifters used to package cocaine. Federal Express packaging was in the kitchen trash can. The total of controlled substances was 7.9 ounces of marijuana and 12 grams of cocaine.

Decided September 25, 1989.

Herbert Shafer, for appellant.

Thomas C. Lawler III, District Attorney, Terry L. Lloyd, Debra K. Turner, Assistant District Attorneys, for appellee.

Defendant moved to suppress the evidence, contending that the entry and seizure in defendant’s home were illegal and that the opening of the package in Atlanta was done “in concert” with Federal Express and was illegal. The motion cited OCGA § 17-5-30, the Fourth and Fourteenth Amendments to the Federal Constitution and the “parallel provisions of the Georgia Constitution,” otherwise unspecified. During the hearing on the motion, however, only the federal rights were asserted and they are all that will be considered here.

It is not disputed that there was sufficient probable cause, based on Federal Express’ opening of the package and the subsequent controlled delivery of it to defendant, for the search of the apartment as well as the arrest of defendant.

The trial court found that the exigencies created by the unexpected appearance of Daniels authorized the entry and securing of the apartment while the warrant was being obtained. Such a factual finding was authorized by the evidence and is binding unless clearly erroneous, which it was not. Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987).

Even if the original entry were illegal, that would not require the suppression of drugs found during the search incident to the warrant, since the probable cause for the warrant contained no information from the entry into the apartment and the evidence sought to be suppressed was seized pursuant to the warrant. Murray v. United States, _ U. S. _ (56 USLW 4801) (June 27, 1988); Sequra v. United States, 468 U. S. 796 (104 SC 3380, 82 LE2d 599) (1984); Mack v. State, 189 Ga. App. 261, 262 (1) (375 SE2d 458) (1988); see Ehrlich v. State, 189 Ga. App. 294, 295 (375 SE2d 272) (1988).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1041.
    FASSE v. SEXTON et al.
    (387 SE2d 17)
    Decided September 25, 1989.
    Susan Fasse, pro se.

      Davis, Kirsch & Wolfe, Timothy W. Wolfe, for appellees.
   Carley, Chief Judge.

Appellee-defendant answered appellant-plaintiff’s complaint and asserted a counterclaim. Acting pursuant to OCGA §§ 9-11-37 (b) (2) (C) and 9-11-37 (d) (1), the trial court subsequently dismissed appellant’s complaint as a sanction for her repeated failure to attend scheduled depositions. Appellant has filed a direct appeal from the order dismissing her complaint.

Appellees’ counterclaim remains pending. “ ‘An appeal from an order dismissing the plaintiff’s claim is premature when there is a counterclaim pending in the court below.’ [Cits.] . . . [T]he pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under CPA § 54 (b) [OCGA § 9-11-54 (b)] ([cits.]) prevented the order from being final and [directly] appealable. This, coupled with the appellant’s failure to follow the applicable procedure for review under [OCGA § 5-6-34 (b)] ([Cits.]), subjects the instant appeal to dismissal [as premature].” Cleveland v. Watkins, 159 Ga. App. 885 (285 SE2d 546) (1981).

Appeal dismissed.

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


text:
    A89A1058.
    CULBERTSON v. THE STATE.
    (386 SE2d 894)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of five counts of aggravated assault upon a correctional officer and one count of possession of a weapon by an inmate. He appeals from the judgments of conviction and sentences entered by the trial court on the guilty verdicts and from the denial of his motion for new trial.

1. That appellant appeared at trial wearing prison clothing is not a basis for reversal, inasmuch as the evidence adduced at trial otherwise revealed that he was a prisoner. See Spurlin v. State, 228 Ga. 763, 765 (4) (187 SE2d 856) (1972); Sharpe v. State, 119 Ga. App. 222, 223 (1) (166 SE2d 645) (1969). “Where, as in this case, the prisoner was being tried for the offense of [possession of a weapon by an inmate] and for the offense [s] of [aggravated assault upon a correctional officer by use of the weapon], the jury of necessity was informed of the prisoner’s prior incarceration.” Wiggins v. Hopper, 235 Ga. 85 (1) (218 SE2d 826) (1975). Because appellant had escaped on four prior occasions, we likewise “find no abuse of discretion in requiring [him] to appear in leg irons. [Cit.] ” Thomas v. State, 171 Ga. App. 306, 308 (4) (319 SE2d 511) (1984). See also Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123) (1988).

2. Several potential jurors were employees of the Georgia State Prison. Because the crimes had occurred at the prison, appellant challenged these potential jurors for cause. The trial court’s failure to sustain these challenges is enumerated as error.

The “limited police powers [of correctional officers] do not necessitate the imputation of possible bias as in the instance of full-time police officers.” Kent v. State, 179 Ga. App. 131, 132 (345 SE2d 669) (1986). Merely that the potential jurors and the victims were employed at the same prison is not dispositive. See Jordan v. State, 247 Ga. 328, 340 (6) (fn. 16) (276 SE2d 224) (1981). The trial court did not err in overruling the challenges for cause.

3. The denial of appellant’s motion for a directed verdict as to the charge of possession of a weapon by an inmate is enumerated as error.

Appellant was charged with possession of a “water bug.” The evidence showed that a “water bug” is a homemade device for heating liquid by use of an electric current. The evidence also showed that appellant used a “water bug” to bring a liquid to a boil and then threw the boiling liquid at the officers. “Water bugs” are considered contraband at the prison, having been used to cause serious injury on prior occasions.

OCGA § 42-5-18 (b) provides that it is unlawful for an inmate, “to be in possession of a gun, pistol, or any other weapon... . .” (Emphasis supplied.) A “weapon” is defined as “[a]n instrument of offensive or defensive combat, or anything used, or designated to be used, in destroying, defeating or injuring a person. . . .” Black’s Law Dictionary (5th ed. 1979). Appellant contends that only the hot liquid that he threw, not the “water bug” that he used to heat the liquid, was a weapon. This contention has no more merit than the contention that only bullets, not guns, are weapons. “[A]lmost any implement . . . [can] be intended or used as a weapon. . . . We do not find the jury’s apparent conclusion that the [‘water bug’] was a weapon even [though not thrown itself] unreasonable under these circumstances.” United States v. Barnes, 569 F2d 862, 863 (1) (5th Cir. 1978).

4. Appellant moved for a directed verdict as to one of the aggravated assault counts, urging that the evidence failed to show that the victim had been placed “in reasonable apprehension of immediately receiving a violent injury” from the “water bug.” The denial of this motion is enumerated as error. From the officer’s testimony, however, a jury could have found that he was placed in reasonable apprehension of immediately receiving a violent injury “unless he retreat[ed] to secure his safety.” Johnson v. State, 158 Ga. App. 432, 433 (280 SE2d 856) (1981). Accordingly, it was not error to deny the motion for a directed verdict.

Decided September 25, 1989.

Cheney & Cheney, Curtis V. Cheney, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

5. In closing argument, counsel for the State made the following comment: “There has been no explanation really offered as to why it was done other than to harm the officers.” Appellant enumerates as error the trial court’s failure to declare a mistrial based upon this remark.

A mere comment on the accused’s failure to rebut the State’s evidence is not impermissible. See Jones v. State, 187 Ga. App. 132, 134 (2) (369 SE2d 509) (1988). See also Ranger v. State, 249 Ga. 315, 318 (3) (290 SE2d 63) (1982); Russell v. State, 184 Ga. App. 657, 658 (1) (362 SE2d 392) (1987). Under the circumstances and applying the appropriate test of Turner v. State, 258 Ga. 97, 101 (4) (365 SE2d 822) (1988), we hold that the trial judge properly denied a mistrial.

6. The trial court did, however, commit reversible error when it refused to give a written request to the effect that appellant’s failure to testify should not give rise to a presumption against him. Clay v. State, 236 Ga. 398 (224 SE2d 14) (1976). Compare Bigby v. State, 146 Ga. App. 500, 501 (3) (246 SE2d 496) (1978).

Judgments reversed.

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


author: McMurray, Presiding Judge.

text:
    A89A1120.
    THE STATE v. McCRARY.
    (387 SE2d 10)
   McMurray, Presiding Judge.

This case came before this Court upon an appeal from the Superior Court of Bibb County, Georgia, and upon a record formally certified and transmitted by the Clerk of that court. Appellee was found guilty, by a jury, on February 13, 1985, of three courts of statutory rape, and was sentenced on the same date, entered February 15,1985, to 20-year terms on Counts 1 and 2 and a 10-year term on Count 3, all to run consecutively. Appellee appealed these convictions and same were affirmed on November 1, 1985, in McCrary v. State, 176 Ga. App. 683 (337 SE2d 442).

Decided September 25, 1989.

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

James C. Bonner, Jr., for appellee.

On June 1, 1987, appellee filed his pleading captioned “Motion to Set Aside Sentences on Counts 1 and 2” (it appears appellee intended this be on Counts 2 and 3).

This appeal involves review of the trial court’s granting appellee’s “Motion to Set Aside Sentences. . . .” At the outset of our consideration of this appeal, we are drawn to the established authority of the Supreme Court of Georgia that “ ‘[a] motion to set aside a verdict and judgment is not an appropriate remedy in a criminal case.’ Claughton v. State, 179 Ga. 157 (175 S.E. 470), citing Brown v. State, 150 Ga. 585 (104 S.E. 428); McDonald v. State, 126 Ga. 536 (55 S.E. 235); Hughes v. State, 159 Ga. 818 (5) (127 S.E. 109); Gravitt v. State, 165 Ga. 779 (3) (142 S.E. 100).” Waits v. State, 204 Ga. 295 (1) (49 SE2d 492). See Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985); Crane v. State, 249 Ga. 501 (292 SE2d 67) (1982). See also Palmer v. State, 144 Ga. App. 480 (1) (241 SE2d 597) (1978).

The initial problem with which we are confronted is how to properly treat the appellee’s pleading in the trial court for purposes of this appeal in view of the foregoing authority. In Sims v. State of Ga., 230 Ga. 589, 590 (198 SE2d 298), the Supreme Court held “[t]he trial judge [in that case] properly treated the petition as one for habeas corpus, since a motion to set aside a verdict and judgment is not an appropriate remedy in this state in a criminal case. Waits v. State, 204 Ga. 295 (1) [supra].” The Supreme Court of Georgia has held that habeas corpus would lie to attack a void judgment even though the sentence had been fully served. See Parris v. State, 232 Ga. 687 (208 SE2d 493), and Smith v. State, 234 Ga. 390 (216 SE2d 111).

Although there is no express language of the trial court treating appellee’s pleading as one for habeas corpus, this Court is of the opinion that, as captioned, appellee’s “Motion to Set Aside . . .’’is not an appropriate remedy in this State and should be considered as one for habeas corpus. Consequently, this Court is of the opinion that under Art. VI, Sec. VI, Par. Ill (4), Const, of the State of Ga. of 1983 (“All habeas corpus cases . . .”), this case is one of which the Supreme Court of Georgia and not this Court has jurisdiction.

Appeal transferred to the Supreme Court.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1130, A89A1191.
    COOPER v. BALDWIN COUNTY SCHOOL DISTRICT; and vice versa.
    (386 SE2d 896)
   Carley, Chief Judge.

While she was a student enrolled in appellee-defendant Baldwin County School District, appellant-plaintiff became involved in a fight at high school and was stabbed by another student. Appellant filed suit against appellee, seeking to recover for her personal injuries. Appellee answered, denying any negligence and raising, among its other defenses, sovereign immunity. Finding that appellee’s liability insurance provided coverage, the trial court denied appellee’s motion for summary judgment and granted appellant’s motion for partial summary judgment on the issue of sovereign immunity. The case was tried before a jury. At the close of appellant’s evidence, the trial court granted appellee’s motion for directed verdict. In Case Number A89A1130, appellant appeals from the judgment entered on this directed verdict. In Case Number A89Á1191, appellee cross-appeals from the denial of its motion for summary judgment and the grant of appellant’s motion for partial summary judgment as to the issue of sovereign immunity.

Case No. A89A1130

1. In granting the motion for directed verdict, the trial court concluded that there was no evidence to authorize a finding that appellee had breached a duty owed to appellant to protect her from the attack. Appellant enumerates as error this conclusion and the directed verdict which was premised upon it.

Construed most favorably to appellant, the evidence reveals the following: Appellant, who was 17 years old, was stabbed three times while in the courtyard of the high school shortly before classes were to begin. The courtyard was a high-visibility but low-traffic area. A guidance counselor was assigned to monitor a position near the courtyard from 8:00 a.m. to 8:10 a.m. At the time of the fight, however, the guidance counselor had returned to her office, from which she could see the courtyard. When the guidance counselor looked up from her desk, she originally saw some bodily contact between appellant and another girl, but thought that the two were merely playing. When she looked up again, she saw blood and went immediately to the courtyard.

A school “assume[s] to some extent a parent’s duty to care for his child while educating him and to shield and protect such child from injury. While a child of 17 is presumptively considered to be chargeable with the same degree of diligence for his own safety as an adult ([cits.]), nevertheless, this does not relieve the defendant. . . from its duty of exercising ordinary care for the safety of its pupils from defects in the premises or from dangerous activities in which other pupils are engaged under the defendant’s supervision. [Cit.]” Marques v. Riverside Military Academy, 87 Ga. App. 370, 373 (73 SE2d 574) (1952). Appellant attempted to show that appellee had a duty to protect her from injury and had breached that duty by introducing evidence of the occurrence of prior fights at the school. However, appellant introduced no evidence of the occurrence of any other fights in the courtyard of the school. “ ‘While the relevancy of other occurrences is ordinarily within the sound discretion of the court, “it is necessary that the conditions of the things compared be substantially similar.” [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. (Cits.)’ [Cit.]” Nalle v. Quality Inn, 183 Ga. App. 119,120 (358 SE2d 281) (1987). See also Donaldson v. Olympic Health Spa, 175 Ga. App. 258, 260 (2) (333 SE2d 98) (1985). To establish the existence of a dangerous condition at one place, it is generally not permissible to show conditions at other places. McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130) (1983). See also Arnold v. Athens Newspapers, 173 Ga. App. 735, 738 (1) (327 SE2d 845) (1985). Appellant, in fact, introduced no evidence as to the specific location of any other fight which had occurred on the school grounds. “Thus, ‘(n)o evidence was admitted, or was proffered and improperly excluded, which would support a finding that (appellee) knew or should have known that the [school’s courtyard] . . . subjected the [students] to an unreasonable risk of sudden, unprovoked and unexpected criminal attack.’ [Cit.]” Nalle v. Quality Inn, supra at 120.

Several cases cited and relied upon by appellant are distinguishable in that they involved isolated or dark locations or inherently dangerous school activities. Moreover, there was no testimony that knives had actually been used in any previous fights on school grounds, or that there was any particular profile of students who were likely to fight. In the absence of prior similar acts, evidence as to any periodic patrol of the courtyard area or similar precaution otherwise normally undertaken by a school does not indicate that appellee was or should have been aware that the courtyard was a particularly dangerous location so as to require that appellee guard against and prevent a possible attack upon one of its students by a knife-wielding fellow student at that location. See Nalle v. Quality Inn, supra at 121; Fowler v. Robertson, 178 Ga. App. 703 (344 SE2d 425) (1986). Compare Atlanta Center v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986); Lay v. Munford, Inc., 235 Ga. 340 (219 SE2d 416) (1975).

The evidence would not authorize a finding that appellee breached a duty owed to appellant to protect her from the attack in the school courtyard. “Since appellant failed to carry [her] burden, superior knowledge on the part of appellee was not shown, and appellee was therefore entitled to judgment in its favor as a matter of law.” Nalle v. Quality Inn, supra at 120.

Decided September 25, 1989.

Jones & Geeter, Shane M. Geeter, for appellant.

Milton F. Gardner, for appellee.

2. If, as we have held, there was no breach of a duty to guard against and prevent the attack, appellant urges that a jury issue nevertheless remains as to whether appellee was negligent in its response to the attack after receiving actual notice of its occurrence.

Appellant’s testimony that the fight lasted four to five minutes does not indicate when it was that appellee received actual notice of its occurrence. The only evidence of actual notice is the guidance counselor’s testimony that, when she first saw blood, she immediately went to the courtyard. Her testimony shows that the fight was broken up two to three minutes after she first saw it. Thus, there is no evidence that appellee became aware of the fight in sufficient time to prevent additional injury to appellant. See Belk-Hudson Co. v. Davis, 132 Ga. App. 237, 239 (1b) (207 SE2d 528) (1974). “This is not a case where the defendant-appellee was aware of a ‘dangerous condition’ created by other invitees and chose to do nothing about it. [Cits.]” Bowling v. Janmar, Inc., 142 Ga. App. 53, 54 (234 SE2d 849) (1977). Instead, the guidance counselor took immediate action upon actual notice that a fight was occurring. As a matter of law, she was not negligent in delaying her response, because there is no evidence of any such delay. See Veterans Organization of Fort Oglethorpe v. Potter, 111 Ga. App. 201, 206 (2) (141 SE2d 230) (1965).

Case No. A89A1191

3. Having held that the trial court correctly granted appellee’s motion for a directed verdict, any error in the denial of appellee’s motion for summary judgment and the grant of appellant’s motion for partial summary judgment as to the issue of sovereign immunity is moot. Therefore, appellee’s cross-appeal is dismissed.

Judgment affirmed in Case No. A89A1130. Appeal dismissed in Case No. A89A1191.

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


text:
    A89A1185.
    ALLEN v. THE STATE.
    (387 SE2d 11)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine. He 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.

At the hearing on the motion to suppress, the State called as its only witness the officer who had conducted the search. According to this officer, he stopped appellant for speeding. After issuing a warning and returning appellant’s driver’s license, the officer requested consent to search the automobile and appellant agreed. After being shown a written consent form, appellant signed it. The officer further testified that he did not threaten, coerce, or make promises to obtain appellant’s consent. The search of the vehicle revealed a package of cocaine taped under the back seat. Appellant, on the other hand, testified that he had refused to consent until the officer told him that the vehicle would definitely be searched anyway, either then or later. See Radowick v. State, 145 Ga. App. 231, 239 (4) (244 SE2d 346) (1978).

At a suppression hearing, the trial court sits as the trier of fact and determines the credibility of the witnesses. See Rogers v. State, 155 Ga. App. 685 (2) (272 SE2d 549) (1980). “ ‘ “Consent searches are valid [cit.] but where the [S]tate relies upon consent, the burden is upon [it] to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. [Cit.] Voluntariness must be determined from all of the circumstances. [Cit.]” [Cit.]’ [Cit.] Based on a careful review of the record before us, we conclude that the totality of the circumstances supported the trial court’s determination that [appellant] freely and voluntarily consented to the search of the car. [Cits.]” Lombardo v. State, 187 Ga. App. 440, 441 (1) (370 SE2d 503) (1988).

2. Appellant enumerates the general grounds, urging that the evidence was insufficient to show his knowing actual possession of the contraband.

Because this case arose prior to March 28, 1988, the effective date of the amendment of OCGA § 16-13-31, it was incumbent upon the State to prove appellant’s actual possession. See Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988); Coleman v. State, 189 Ga. App. 366, 368 (7) (375 SE2d 663) (1988). However, “ ‘the legislature [did not intend] the phrase “actual possession” ... to mean that a person would be holding [the contraband] in his hand or have it physically on his person.’ [Cits.] . . . The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime charged. [Cits.] ... ‘If a person is driving an automobile or has an automobile in his possession, custody or control, all in that automobile is presumed to be his and in his possession.’ [Cit.] Whether or not the evidence was sufficient to rebut the inference arising from the finding of the drugs in the automobile is a question for the jury to decide. [Cit.]” Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988). The presence of a passenger in the vehicle is immaterial to our consideration of appellant’s enumeration of the general grounds. The evidence authorized the jury to find, beyond a reasonable doubt, that appellant was in knowing possession of the cocaine, either individually or jointly. See Mendez v. State, 185 Ga. App. 1, 2 (1) (363 SE2d 262) (1987); Coop v. State, 186 Ga. App. 578, 580 (2) (367 SE2d 836) (1988).

Decided September 25, 1989.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A1203.
    FLOYD v. THE STATE.
    (387 SE2d 16)
   Carley, Chief Judge.

Appellant was indicted for three counts of aggravated child molestation. According to the allegations of the indictment, the molestations involved acts of sodomy. See OCGA § 16-6-4 (c). Appellant was tried before a jury and was found guilty of all three counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

Appellant’s sole enumeration is that the trial court erroneously failed to charge, without written request, on the definition of “sodomy.” “ ‘In the absence of request, the court’s failure to define the meaning of terms used in the charge is not ordinarily ground for reversal.’ [Cits.] In any event, it is not error for the trial court to fail to define terms in common usage, even upon request. [Cit.]” Garner v. State, 182 Ga. App. 251, 252 (2) (355 SE2d 451) (1987). Undoubtedly, it would be better practice for the trial court in a case such as this to define “sodomy” in its charge to the jury. However, the failure to do so was not reversible error, particularly in view of the fact that the “indictment specified the [manner in which the alleged acts of sodomy had been committed] in the case sub judice . . . and the evidence disclosed that [appellant performed these acts of sodomy]. The [victims so] testified. . . .” Ricks v. State, 156 Ga. App. 647, 648 (3) (275 SE2d 730) (1980). “[T]here was no written request to charge, and the charge as a whole was sufficient in instructing the jury as to the basic law.” Craft v. State, 158 Ga. App. 745, 746 (2) (282 SE2d 203) (1981). See also Spaulding v. State, 185 Ga. App. 812, 813 (2) (366 SE2d 174) (1988).

Decided September 25, 1989.

Hylton B. Dupree, Jr., A. Gregory Poole, for appellant.

Thomas J. Charron, District Attorney, Fonda S. Clay, Debra H. Bernes, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


author: Pope, Judge.

text:
    A89A1206.
    SANFORD v. THE STATE.
    (386 SE2d 899)
   Pope, Judge.

Defendant was convicted of possession of cocaine found during a search of his home conducted pursuant to a search warrant. We affirm.

1. The cocaine was found inside a folded social security card issued in defendant’s name in a wallet containing a driver’s license and other forms of identification in defendant’s name. The wallet was found on top of a chest of drawers in the master bedroom of defendant’s residence. We reject defendant’s argument that the evidence was insufficient to establish he was in possession of the contraband. “ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ [OCGA § 24-4-6.] A reasonable hypothesis as used in this Code section refers only to ‘such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; (it) does not mean that the act might by bare possibility have been done by someone else.’ McGee v. State, 159 Ga. App. 763 (1) (285 SE2d 224) (1981); see also Jerdine v. State, 137 Ga. App. 811 (224 SE2d 803) (1976).” Prescott v. State, 164 Ga. App. 671, 672 (297 SE2d 362) (1982) (in which sufficient evidence was found to convict defendant of possession of contraband found in a pocket of a coat hanging in a bedroom closet in which defendant ordinarily hung his clothes). See also Lawrence v. State, 175 Ga. App. 855 (334 SE2d 718) (1985) (in which sufficient evidence was presented to support a conviction for possession of contraband inside a purse containing the defendant’s driver’s license which was found in a trash dumpster toward which defendant had been seen moving before she disappeared).

Decided September 25, 1989.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Sharon T. Ratley, Thomas J. Matthews, Assistant District Attorneys, for appellee.

2. Contrary to defendant’s argument, the affidavit presented to the magistrate was sufficient to establish probable cause to issue the search warrant. The officer affiant stated that he had known the confidential informant for more than twelve months and that the informant had previously provided the officer with information leading to the arrest and convictions of more than three people for possession and sale of cocaine. Under the “totality of the circumstances” test the affidavit provided sufficient information to enable the magistrate to make a common-sense decision that there existed a fair probability that contraband would be found at the specified residence. See State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984); Mincey v. State, 180 Ga. App. 898 (1) (350 SE2d 852) (1986).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1322.
    DAVIS et al. v. JOHNSON et al.
    (386 SE2d 900)
   Beasley, Judge.

Plaintiffs Mr. and Mrs. Davis appeal the grant of summary judgment, final judgment and dismissal in favor of defendant physicians, Johnson and Kendall, in this suit alleging medical negligence resulting in the wrongful death of the Davis daughter. The action was filed against these defendants two days prior to the running of the statute of limitation and service was perfected subsequent to the statutory time. The trial court issued its ruling based on its determinations that (1) plaintiffs did not establish due diligence and reasonableness in attempting to secure prompt service on Johnson and Kendall where service occurred 108 days and 109 days respectively after the complaint was amended adding these defendants, and (2) the deposition testimony of another defendant physician proffered by plaintiffs in opposition to the motions for summary judgment was not sufficient to create a factual question as to the care rendered by Johnson and Kendall. The procedural ground is dispositive.

1. Appellants contend that the trial court abused its discretion in determining their failure to establish due diligence and reasonableness in attempting to secure proper service on the sole basis of the elapsed time between the filing of the amended complaint and the effectuation of service, without consideration of their efforts and actions to accomplish service. They further contend that the evidence established their due diligence and reasonableness in effecting prompt service.

The record does not support the contention that the trial court rendered its decision solely on the basis of the time period between the filing of the complaint and effectuation of service without regard for evidence of appellants’ efforts. The fact that the court’s findings, issued pursuant to plaintiffs’ request for clarification and reconsideration of the final judgment, included a statement about the elapsed time does not indicate that the determination of plaintiffs’ failure to establish due diligence and reasonableness hinged on that one fact. Moreover, the initial order granting summary judgment on which the appealed-from final judgment and decree was based expressly stated that the trial court was granting summary judgment after hearing argument of counsel and after thorough review of all matters of record.

As to the circumstances of service, the relevant evidence is undisputed. Plaintiffs’ daughter died on January 31, 1985, while hospitalized and after having been treated by physicians Moreno and Gonzalez. Plaintiffs filed their original suit against Moreno on August 9, 1985, and a year later filed an amended complaint adding Gonzalez and his professional corporation as party defendants.

During the taking of Gonzalez’ deposition on January 28, 1987, plaintiffs discovered a potential issue of care afforded the deceased by physicians at Humana MedFirst Center on January 18, 19, and 21, 1985. Consequently, plaintiffs sought to add as party defendants, Humana, Inc., the corporate entity which owned and/or operated the MedFirst center, Primary Care Physicians Group, P. C., the corporate entity which staffed the facility, and the individual physicians who treated their daughter at the center.

The MedFirst records acquired by plaintiffs’ attorney during litigation revealed that the decedent had been treated by a Dr. Michael Johnson on January 18 and 21 and by a Dr. C. Kendall on January 19. The local telephone directory revealed a listing and a local address for a Dr. Michael R. Johnson, but plaintiffs’ attorney found no listing in either the white or yellow pages of the telephone directory for a Dr. C. Kendall or any similar name.

On January 29, 1987, plaintiffs moved for and were granted leave to file an amended complaint adding as party defendants, Humana, Inc., Primary Care Physicians Group, P. C., Michael R. Johnson, M.D., and C. Kendall, M.D. The amended complaint contained the directory address for Johnson; it simply stated that Kendall was a citizen and resident of Georgia. The next day, a second original of the amended complaint and service copy of suit along with the required fee was mailed by plaintiffs’ attorney to the sheriff to be served on Johnson at the directory address.

The next month, the service papers were returned to plaintiffs’ counsel with the notation that no four-digit number as given existed on the named street so that service could not be effected. Plaintiffs sought Johnson’s correct address through formal discovery once the other defendants responded to the newly amended complaint and intended to proceed similarly to obtain Kendall’s address.

Humana and Primary Care filed answers on March 3, which were received by plaintiffs’ attorney on March 5. The next day plaintiffs served Humana and Primary Care with interrogatories and requests for production of documents, requesting, inter alia, the present, professional and last known addresses for Johnson and Kendall. Defendants responded on April 4, advising that Johnson resided at the address at which plaintiffs had already attempted service and providing a local address for Kendall. These responses were received by plaintiffs’ counsel on April 6.

Because discovery revealed an address for Johnson which had been reported by the sheriff’s department to be invalid, plaintiffs engaged a private investigator. Later that month, the investigator advised plaintiffs’ counsel that the given address was valid, that he had spoken with a woman at that address who identified herself as Johnson’s wife, and that plaintiffs should request the sheriff to again serve the papers.

On May 6, plaintiffs’ attorney wrote to the sheriff of the county of Johnson’s residence advising him that the earlier address for Johnson was not invalid. He also wrote to the sheriff of the county of Kendall’s residence asking that she be served at the address uncovered by the discovery. Service was effected on Johnson on May 17 and on Kendall on May 18.

“A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (3) (307 SE2d 134) (1983). See also Brumbalow v. Fritz, 183 Ga. App. 231, 232 (2) (358 SE2d 872) (1987).

If the plaintiff has taken some action to perfect service, “[t]he trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts. [Cits.]” Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977). See also Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776) (1965). The burden of showing lack of fault is on plaintiff. Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978). See also Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988). The appellate court should affirm the trial court’s exercise of its discretion in determining whether or not plaintiff has met the burden unless a gross abuse of discretion is shown. See Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360) (1975).

Decided September 25, 1989.

Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellants.

Allen & Ballard, William L. Ballard, Fortson & White, Warren C. Fortson, B. Ann Smith, Charles D. McDonald III, Love & Willing-ham, Hezekiah Sistrunk, Jr., for appellees.

Just after deciding that they needed Johnson and Kendall as parties defendant, plaintiffs did make some effort to find the doctors’ whereabouts, by looking in the telephone directory. There was no evidence of any attempt to consult any other readily available source of physician addresses such as local or national medical associations or the state medical licensing agency. Nor was there any attempt to contact the health center which had employed the two physicians or to hire an investigator promptly. Instead, the automatically time-consüming process of civil discovery was chosen. While some situation might call for the utilization of formal discovery devices as the most expedient or only means of information gathering to effect service, this was clearly not one. Furthermore, once the initial effort to serve Johnson failed because of the sheriff’s error, plaintiffs did not verify that the address was non-existent. “ ‘ “[T]he burden is on the plaintiff to investigate and learn where the defendant may be located.” (Cit.)’ [Cit.]” Jones v. Brown, 174 Ga. App. 632, 634 (331 SE2d 24) (1985).

We cannot say as a matter of law that the trial court abused its discretion in determining that in these circumstances plaintiffs failed to establish due diligence and reasonableness in attempting to secure prompt service after the statute had run. See Smith v. Griggs, 164 Ga. App. 15, 18 (2) (296 SE2d 87) (1982). See also Jones, supra at 634.

2. Division 1 makes unnecessary a consideration of appellants’ remaining enumerations of error, which address the second basis for the trial court’s ruling.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1405.
    SMAHA et al. v. MOORE et al.
    (387 SE2d 13)
   Beasley, Judge.

Appellants sued their accountant and his professional corporation for alleged negligence in the preparation of their 1982 and 1983 federal and state income tax returns, contending that understated income resulted in substantial additional taxes, interest, and penalties when the IRS audited several years later. The primary issue was whether the accountant was obligated, by the contract of employment or professional standards, to verify by bank deposit statements the total income figures provided by the client. A second issue was whether the accountant was responsible for resolving any discrepancy which was discovered by such comparison.

A jury found for defendants. The sole enumeration complains of the giving, in substance, of a part of defendant’s request to charge 14. Although the written request is not in the record, the court’s charge based on it and plaintiff’s objection to it are. What is targeted on appeal is the court’s statement: “if the parties have different views of the terms of a contract, then there is no contract.” It was inserted in the portion of the court’s instructions regarding the elements and requisites of valid contracts.

OCGA § 5-5-24 (a) provides that when objection is made, the party must “[state] distinctly the matter to which he objects and the grounds of his objection.” This must be specific enough to be reasonably understood and addressed by the trial court, so that it can correct error before the jury returns its verdict. McGaha v. Kwon, 161 Ga. App. 216, 218 (2) (288 SE2d 289) (1982).

The plaintiffs did not object to the charge when it was mentioned as intended for inclusion before the court instructed the jury. However, they did so when the court gave opportunity for objections after the jury was sent out. Plaintiffs’ counsel stated, with regard to the sentence under scrutiny: “Now in a very loose sense that might be borderline accurate. Within the context of this case it’s downright wrong, because they (the parties) obviously have different views of the terms. And that was an argumentative charge within the context of this case.”

The contention on appeal is that the charge misinforms the jury that if the parties disagree about the terms subsequent to its formation, there is no contract. Plaintiffs fault the instruction as not expressly limiting the “no contract” result to the parties agreement vel non about the terms at the formation of the contract. Giving the rather obtuse objection at trial a wide interpretation, we will consider it as adequately preserving the ground urged on review.

Decided September 25, 1989.

Nall, Miller, Owens, Hocutt & Howard, James S. Owens, Jr., Stephanie L. DeBerry, for appellants.

Freeman & Hawkins, Frank C. Bedinger III, Carey E. Fox, for appellees.

The sentence objected to must be read in the context of the whole charge, Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986), and in the context of the evidence to which it was to apply. See Groover v. Cudahy Packing Co., 61 Ga. App. 707, 709 (7 SE2d 287) (1940). It appeared in that portion of the charge devoted to the elements and attributes of a valid contract and what must be done to create one. The court was talking about the creation of a contract. It is clear that in giving the pinpointed instruction, the court was referring to the time at which the contract was formed. Plaintiffs’ wresting another meaning requires more imagination than the law would tolerate.

In addition, we would have to disregard the common sense attributed to juries. “Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error.” Underwood v. Atlanta & West Point R. Co., 105 Ga. App. 340, 341 (6) (124 SE2d 758) (1962). It was obvious from the contentions of the parties and from the evidence that the dispute was about the terms of the contract. To conclude that the jury may have understood that since a dispute developed after the accountant had prepared the tax returns for the clients for many years there was no contract to begin with, defies “ordinary intelligence.”

No reversible error occurred.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1569.
    YORGIN et al. v. ADLER et al.
    (387 SE2d 14)
   McMurray, Presiding Judge.

Plaintiffs Debbye Yorgin and Donald Yorgin filed their complaint against five defendants. This appeal is taken from the grant of summary judgment in favor of two defendants, Joel Adler, D.D.S., and Adler & Johnson, P.C.

In regard to the two defendants to whom summary judgment was granted, the complaint alleges that: Plaintiff Debbye Yorgin underwent a surgical procedure under the direction, care and supervision of defendant Joel Adler, D.D.S., acting both individually and as an agent, officer and employee of Adler & Johnson, P.C. The surgical procedure consisted in part of harvesting a skin graft from the plaintiff Debbye Yorgin’s right thigh. Prior to the surgery, plaintiffs were told by defendant Joel Adler, D.D.S., that the area where the skin would be taken from on plaintiff Debbye Yorgin’s right thigh would be no larger than a two inch square. During the course of said surgery defendant Joel Adler, D.D.S., negligently operated the skin grafting machine, thereby causing an excessive scar and disfigurement to the right thigh of plaintiff Debbye Yorgin in an area from eight to ten inches in length by five to seven inches in width. Plaintiff Debbye Yorgin sought damages for temporary and permanent disfigurement and for pain and suffering from her injuries. Plaintiff Donald Yorgin sought damages for loss of consortium.

In support of their motion for summary judgment, defendants Joel Adler, D.D.S., and Adler & Johnson, P.C., presented the affidavit of Joel Adler, D.D.S., who stated that he was a dentist who limited his practice to oral and maxillofacial surgery, that he is familiar with the standard of care employed by dental surgeons generally and in the diagnosis, care, and treatment of patients exhibiting the same signs and symptoms displayed by plaintiff Debbye Yorgin. The affidavit of Dr. Joel Adler further stated that at all times relevant to his performance of the surgical procedure on plaintiff Debbye Yorgin, he exercised that degree of care and skill which is customarily and ordinarily employed by dentists and oral and maxillofacial surgeons under similar conditions and like surrounding circumstances.

Plaintiffs responded with the affidavit of a medical doctor who stated the opinion “that the physician exercised the normal standards of care upon Mrs. Yorgin, but never informed the patient of the possibility of a larger scarring area of the skin graft donor site.” (Emphasis supplied.) Plaintiff’s expert also opined “that the doctors did not properly inform the patient with enough knowledge for her to make the proper decision as to whether to proceed with the skin graft and facial surgery.” Held:

Plaintiffs’ complaint, insofar as it concerns defendants Joel Adler, D.D.S., and Adler & Johnson, P.C., states a medical malpractice claim predicated on the alleged negligence of defendant Joel Adler, D.D.S. Therefore, since the uncontroverted expert opinion evidence of both defendant Joel Adler, D.D.S., and plaintiffs’ expert shows that defendant Joel Adler, D.D.S., had not negligently performed any medical duties, the trial court did not err in granting summary judgment in favor of defendants Joel Adler, D.D.S., and Adler & Johnson, P.C. Payne v. Golden, 245 Ga. 784 (267 SE2d 211). While plaintiffs argue that questions remain for the jury in regard to other claims against defendants Joel Adler, D.D.S., and Adler & Johnson, P.C., plaintiff’s complaint cannot be reasonably viewed as raising those additional claims. Defendants Joel Adler, D.D.S., and Adler & Johnson, P.C., having successfully negated an essential element of the sole claim stated against them in plaintiffs’ complaint, are entitled to summary judgment. Compare Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637).

Decided September 25, 1989.

Joseph J. Saia, for appellants.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Ronald R. Coleman, Jr., Marvin A. Devlin, for appellees.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1634.
    BROWN v. THE STATE.
    (386 SE2d 903)
   Banke, Presiding Judge.

The appellant was convicted of aggravated child molestation based on evidence that he had sodomized a neighbor’s child while accompanying the child and his own two minor sons on a camping trip. He brings this appeal from the denial of his motion for new trial. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty of aggravated child molestation beyond a reasonable doubt. See generally OCGA § 16-6-4(c); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in denying his motion to suppress as evidence a collection of slides and photographs of nude male children which had been seized from his home several months after the occurrence of the offense for which he was on trial. It was established without dispute at the hearing on the motion to suppress that the existence of these photographs first came to the attention of law enforcement officials due to the actions of the appellant’s minor sons, who, of their own initiative, showed some of them to a deputy sheriff who had been dispatched to their residence to investigate a neighbor’s complaint that a disturbance was in progress there. After the deputy’s arrival, but before any search took place, the appellant’s sons brought a group of the photographs to him, complaining that the appellánt routinely made them disrobe and view such pictures as punishment for misbehavior. Because these photographs clearly were not obtained by the deputy as the result of any unlawful intrusion, they were not subject to suppression on Fourth Amendment grounds. Accord Neal v. State, 159 Ga. App. 450, 451 (3) (283 SE2d 671) (1981); Dickerson v. State, 151 Ga. App. 429 (1) (260 SE2d 535) (1979).

The remaining slides and photographs were seized during two subsequent searches of the home, the first of which was conducted later that same evening pursuant to the written consent of the appellant’s wife. There is no contention that the wife did not have sufficient authority over the premises to authorize this search. See generally Barrow v. State, 235 Ga. 635 (1), 636-7 (221 SE2d 416) (1975). The second search was conducted the following day pursuant to a warrant, the validity of which is challenged only on the ground that it was issued on the basis of the prior seizures. Inasmuch as the prior seizures were not unlawful, we hold that the trial court did not err in denying the motion to suppress.

3. The appellant further contends that the trial court erred in refusing to exclude the photographs and slides from evidence on the ground that they improperly placed his character in issue by establishing prior criminal misconduct on his part. It has not been suggested what criminal offense was established by the appellant’s mere possession of these materials; and the appellant did not, in any event, obtain a ruling on this objection in the trial court. Although he did raise such an objection in a motion in limine filed prior to trial, that motion also sought the exclusion of evidence that he had pled guilty to five counts of cruelty to children in connection with conduct related to these materials; and a ruling was elicited from the trial court only on the latter aspect of the motion. During the trial, the only objection which the appellant made to the admission of the slides and photographs was that a “proper foundation and identification ha[d] not been made to submit these items into evidence as to where they were obtained and by whom they were obtained.”

The failure to invoke a ruling on a motion in limine results in a waiver of the motion, Delong v. State, 185 Ga. App. 314 (363 SE2d 811) (1987); and a ground of objection not asserted in the trial court cannot be asserted upon appeal. See Jennings v. State, 169 Ga. App. 421 (312 SE2d 877) (1984). Under the circumstances, we hold that the appellant’s objection to the admission of the photographs and slides on the ground that they improperly placed his character in issue was not preserved for appellate review.

4. The appellant complains that his character was also improperly placed in issue by the admission of the evidence concerning his prior convictions for cruelty to children. As previously indicated, the trial court did rule against the appellant on this aspect of his motion in limine, rejecting his argument that the offenses were insufficiently similar to the offense for which he was on trial to be admissible as similar transactions or occurrences, as well as his argument that timely notice had not been provided to him pursuant to Rules 31.1 and 31.3 of the Uniform Superior Court Rules of the state’s intention to present this evidence. However, an examination of the transcript reveals that the state did not attempt to introduce the evidence in question until after the appellant’s counsel, during cross-examination of one of the state’s witnesses, had already inquired about the charges and asked about their ultimate disposition. “The prosecution merely followed up on the issues injected by [the defendant]. Since defendant first opened the door to this line of questioning, he cannot now complain. [Cits.]” Smith v. State, 258 Ga. 181, 182 (366 SE2d 763) (1988).

Decided September 25, 1989.

Darrell E. Wilson, District Attorney, Kimberly L. Schwartz, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.