text:
    A89A0974.
    JONES v. STATE OF GEORGIA.
    (382 SE2d 612)
   McMurray, Presiding Judge.

In 1981, appellant Billy Joe Jones was indicted for the murder of his mother and two half-sisters. Following a jury trial, at which Judge W. F. Blanks presided, appellant was found “not guilty by reason of insanity.” He was committed to a state hospital in accordance with OCGA § 17-7-131 and he has remained in the custody of the Department of Human Resources since that time.

On December 28, 1987, appellant filed a motion for release, alleging he did not meet the criteria for civil commitment. A hearing was held before Judge Blanks and appellant’s motion for release was denied. This appeal followed. Held-.

The evidence adduced at the hearing demonstrates that appellant was diagnosed as having an explosive disorder, a personality disorder manifested by an anti-social act. One expert was of the opinion that appellant’s disorder was “isolated.” In his view, the disorder manifested itself only once — when appellant murdered his mother and step-sisters. Another expert opined that appellant’s disorder is intermittent and that, therefore, appellant is capable of an explosive, anti-social act at any time. The experts were in agreement that appellant is not psychotic and his disorder does not impair his judgment or perceptions of reality.

One expert was of the opinion that appellant is not a danger to himself or others. It was the opinion of another expert, however, that appellant is incapable of coping with the ordinary demands of life and is a danger to the public.

Although the experts opined that defendant is not mentally ill, the superior court was not bound by their opinions. Rather, the superior court could rely simply upon the presumption of continued insanity. Butler v. State, 258 Ga. 344, 345 (1) (369 SE2d 252). In the case sub judice, the judge who presided at appellant’s trial is the judge who heard the evidence adduced upon the motion for release. “His familiarity with [appellant’s] condition, the evidence at the hearing, and the presumption of continued insanity satisfies us that it was not error to deny [appellant’s] application.” Butler v. State, 258 Ga. 344, 346 (2), supra. See Arnold v. State, 173 Ga. App. 839 (328 SE2d 572).

Decided May 2, 1989

Rehearing denied May 15, 1989

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

John R. Parks, District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A0849.
    KHOURY CONSTRUCTION COMPANY, INC. v. EARHART et al.
    (382 SE2d 392)
   Deen, Presiding Judge.

The appellant, Khoury Construction Company, Inc., built a house for the appellees, and was sued when it would not correct certain defective items on the house. The primary areas of complaint concerned the location of a golf cart garage door, and a hardwood floor that had loose boards and unsightly spaces between some of the boards. The jury returned a verdict for $18,500 in favor of the appellees, and this appeal followed. Held:

1. The appellant contends that the trial court erred in allowing the appellees to play a tape recording made by one of the appellees as he walked on the squeaky floor, because the appellees failed to include the tape recording on the list of documentary and physical evidence provided in the pre-trial order. The tape recording, which was made four days before trial, was not tendered as an exhibit. Assuming that the recording, had it existed at the time, should have been listed in the pre-trial order, under OCGA § 9-11-16 (b) the trial court had discretion to modify the pre-trial order at the trial to prevent manifest injustice, and we find no abuse of that discretion.

On appeal, the appellant also contends that the tape recording should not have been played because no foundation was laid as required in Steve M. Solomon Jr., Inc. v. Edgar, 92 Ga. App. 207 (88 SE2d 167) (1955). However, the record shows that the appellee who made the recording testified about the circumstances of the recording and that the recording fairly represented the noise caused by walking on the floor; this appellee, of course, was also subject to cross-examination. The appellant’s foundation objection thus is without merit. Galaxy Carpet Mills v. Massengill, 255 Ga. 360 (3) (338 SE2d 428) (1986).

2. The appellees called as witnesses an architect who testified primarily about the cost of repairs for the golf cart garage door, and a flooring contractor who testified about the hardwood floor. The appellant contends that these witnesses’ testimony was that of experts and should have been excluded because the appellees had not divulged these experts in answering an interrogatory asking for the names of all experts the appellees intended to call as witnesses. The appellees claim that these witnesses were not called and did not testify as experts. The appellees did list the architect and a representative of the flooring contractor in the pre-trial order four months before trial, and the architect’s written estimate of the cost of repairs was provided to the appellant in response to the appellant’s first interrogatories. Under these circumstances, the trial court did not abuse its discretion in allowing the witnesses to testify.

It does not appear that expert opinion testimony was essential to prove the appellees’ claim that the appellant had not built the house in a fit and workmanlike manner. The problem with the golf cart garage door was its placement so that with cars parked in the garage one could not drive the golf cart in or out of the garage. Thus, for all practical purposes, the golf cart door was patently useless and it did not take an expert to reach that diagnosis. The hardwood floor creaked loudly, moved up and down, and had numerous wide spaces between the boards; likewise, the jury did not need an expert to tell it that the floor was defective. “[I]t is possible for evidence to establish a known or knowable defect without proof of a professional standard, if the proof is clear and palpable to the jury. [Cit.]” Hudgins v. Bacon, 171 Ga. App. 856, 860 (321 SE2d 359) (1984).

3. The appellant also contends that the trial court erred in refusing to give several of its requested jury charges. The requested charges on the necessity of presenting competent evidence as to the acceptability of specific professional conduct was properly denied, as it was not adjusted to the evidence, and the requested charge on comparative exercise of care by an owner and a builder was inapposite in this contract action. See Hudgins v. Bacon, supra at 861.

With regard to the golf cart garage door, an architect employed by the appellant prepared the plans and specifications of the house which were incorporated into the contract. Since the appellant furnished the design and assured the appellees that the golf cart door would be functional, the appellant was not entitled to a jury charge that it was not liable because it had built according to those specifications furnished by another. Cf. Cooper v. Garmon Bros. Contractors, 166 Ga. App. 839 (305 SE2d 499) (1983).

4. Relying upon Kendrick v. White, 75 Ga. App. 307 (43 SE2d 285) (1947), the appellant also contends that the appellees waived any complaint they had with regard to the golf cart garage door by making final payment and taking possession of the house, without the appellant ever having promised to remedy the defect. In this case, the appellees pointed out what they perceived as a problem with the location of the golf cart door when the house was still in the framing stage, but the appellant assured them that there would be no problem with getting a golf cart in and out of the garage with cars in the garage. When the appellees moved in and discovered that the condition was not functional, they complained to the appellant, who thereafter refused to make any alteration. Under these circumstances, we find no waiver.

Decided May 15, 1989.

Gannam & Gnann, J. Hamrick Gnann, Jr., for appellant.

Thomas J. Mahoney, Jr., Hunter, Maclean, Exley & Dunn, Arnold C. Young, for appellees.

5. The evidence supported the verdict.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A0052.
    MALLOY v. ELMORE et al.
    (382 SE2d 395)
   Birdsong, Judge.

This is a personal injury action arising out of a multiple vehicle collision. The jury returned a verdict for the defendants, and appellant appeals the judgment and the trial court’s order denying appellant’s motion for nsw trial.

The collision occurred on December 16, 1983, and suit was initiated on April 4, 1986.

Appellant’s sole enumeration of error is that the trial court erred in overruling appellant’s motion in limine to exclude any collateral source evidence and in allowing counsel for appellees to cross-examine the appellant/plaintiff about his collateral source disability insurance benefits. The trial court denied appellant’s motion in limine, overruled the in-court objections made to the admission of collateral source evidence, and overruled the objections made and exceptions taken to a collateral source charge to the jury.

The denial of appellant’s motion in limine, the admission of collateral source evidence during cross-examination, and the giving of the collateral source charge was error, as the collateral source rule of OCGA § 51-12-1 (b), which became effective July 1, 1987, cannot be given retroactive effect and operates prospectively only. Powell v. Stephens, 258 Ga. 149 (368 SE2d 518); Polito v. Holland, 258 Ga. 54 (365 SE2d 273). However, the error to warrant reversal must be harmful, that is, prejudicial to the appellant. Thomas v. Clark, 188 Ga. App. 606 (373 SE2d 668); Kelley v. Harris, 187 Ga. App. 215 (369 SE2d 534); Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882).

Decided May 16, 1989.

Dailey & Groover, Lewis M. Groover, Jr., for appellant.

Downey, Cleveland & Parker, Lynn A. Downey, Russell B. Davis, R. Chris Irwin & Associates, R. Chris Irwin, Kathleen M. Pacious, for appellees.

The collateral source charge in the case sub judice limited the jury’s discretionary consideration of the admitted collateral source evidence to the question of “special damages.” “It is well-settled that ‘the giving of a charge ... or in the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal where a verdict was returned in favor of the defendant.’ ” Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510); Maloy v. Dixon, 127 Ga. App. 151, 156, n. 2 (193 SE2d 19) and cases cited therein; see Johnson v. Amerson, 179 Ga. App. 75 (2) (345 SE2d 94); Parham v. Roach, 131 Ga. App. 728, 730 (1) (206 SE2d 686). However, appellant in essence invites this court to speculate that the jury would ignore the limited purpose for which the collateral source evidence was admitted and would consider it in determining the question of liability. We will not engage in such unwarranted speculation regarding the conduct of the jury, Whelchel v. Thomas &c., supra; Thomas v. Clark, supra, as “[t]his court is a court for the correction of errors and its decision must be made on the record . . . and not upon the briefs of counsel.” Jenkins v. Bd. of Zoning &c. of Columbus, 122 Ga. App. 412 (2) (177 SE2d 204).

Appellant’s enumeration of error and other assertions are without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    A89A0123.
    THE STATE v. McINTYRE.
    (382 SE2d 669)
   Sognier, Judge.

The State appeals from the trial court’s order granting the motion of Clarence McIntyre, Jr. for return of property pursuant to OCGA § 17-5-30.

The State contends this appeal is authorized by OCGA § 5-7-1 (3) as an appeal from an order “sustaining a plea or motion in bar, when the defendant has not been put in jeopardy.” We do not agree. As the record reveals that the State has stipulated it will not use the property at issue in the trial of the charges pending against appellee, the order on appeal does not operate to bar appellee’s prosecution. Compare State v. Benton, 246 Ga. 132 (269 SE2d 470) (1980); State v. Rowe, 138 Ga. App. 904-905 (1) (228 SE2d 3) (1976), overruled in part on other grounds, Cleary v. State, 258 Ga. 203, 205 (366 SE2d 677) (1988). Nor is this appeal permissible under OCGA § 5-7-1 (4), which authorizes appeals by the State from orders sustaining motions to suppress, because the State is not appealing from the trial court’s order granting appellee’s motion to suppress the seized evidence and is not challenging that ruling, but instead is appealing from the subsequent order compelling the return of the seized property to appellee. Construing OCGA § 5-7-1 strictly against the State as we are bound to do, State v. Gribble, 169 Ga. App. 446 (313 SE2d 720) (1984), we conclude the instant appeal does not fall within any of the circumstances in which the State is authorized to appeal, and accordingly the appeal is dismissed. See id.

Decided May 16, 1989.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant.

Jerome J. Froelich, Jr., for appellee.

Appeal dismissed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0462.
    DAVIS v. THE STATE.
    (382 SE2d 396)
   Banke, Presiding Judge.

Davis was originally indicted for four counts of burglary. In a superseding indictment, seven more burglary counts were added, for a total of eleven. The trial court granted a motion by the appellant to sever the four original counts from the seven additional counts, and the case proceeded to trial on the original counts. The appellant was convicted on one of the counts as charged, was found guilty of the lesser included misdemeanor offenses of theft by taking and criminal trespass, respectively, with respect to two of the counts, and was acquitted on the remaining count. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in admitting evidence of his involvement in three of the seven additional burglaries charged in the amended indictment. The evidence in question consisted of the testimony of two alleged accomplices who had been involved in these three burglaries, each of which had occurred within the same general vicinity and during the same time period as those for which the appellant was on trial. In each of the three additional burglaries, entry to the building had been gained by knocking a hole through a wall with a sledge hammer. This had also been the manner of entry in two of the alleged burglaries for which the appellant was on trial. The evidence concerning the additional burglaries was admitted with a limiting instruction to the jury that it could only be considered “solely with reference to the mental state, identity, or intent of the defendant insofar as the same is applicable to or refers to or illustrates the charge or charges” for which he was being tried.

“[Ejvidence of independent crimes is admissible for limited purposes if two conditions are met: ‘ “First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. (Cits.)” ’ If these conditions are satisfied, evidence concerning the independent crimes may be admitted for the purposes of showing, among other things, identity, motive, plan, scheme, bent of mind, intent, and course of conduct. [Cits.]” Kilgore v. State, 251 Ga. 291, 296-297 (305 SE2d 82) (1983). We hold that these conditions were satisfied in the present case and that, accordingly, the evidence in question was properly admitted.

2. The appellant contends that the trial court erred in admitting evidence that he had asserted his right to remain silent following his arrest. Although evidence was admitted concerning a statement the appellant had made after executing a waiver of his Miranda rights and before invoking his right not to answer any further questions, the appellant’s invocation of his right to remain silent was not revealed to the jury. Accordingly, this enumeration of error is without merit. Compare Durden v. State, 250 Ga. 325 (3) (297 SE2d 237) (1982).

3. During his cross-examination of the investigating officer, appellant’s counsel inquired about whether fingerprints had been found at one of the crime sites. The officer responded: “There were no fingerprints because of the gloves.” Counsel then asked whether there were any gloves on the prosecutor’s table, to which the witness stated: “No sir, I don’t see any gloves on the table. We were told by both co-defendants that that was one of the rules of operation.” At that point, counsel for the appellant moved for mistrial on the ground that the officer’s response was violative of a prior ruling barring the admission of any statements made to law enforcement officers by the appellant’s alleged accomplices. The motion was denied, and the jury was instructed to disregard the officer’s remark.

On appeal, the appellant contends that the remark was so prejudicial that the trial court’s denial of his motion for mistrial deprived him of his right to a fair trial. Viewed in the context of the strong evidence of the appellant’s guilt properly before the jury and of the trial court’s instruction to the jury to disregard the remark, we conclude that the denial of the motion for mistrial did not constitute an abuse of discretion. See generally Sabel v. State, 250 Ga. 640, 644 (300 SE2d 663) (1983), overruled on other grounds in Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984).

4. The appellant contends that the trial court erred in admitting into evidence an inculpatory custodial statement which the appellant had made during a conversation with a deputy sheriff at the conclusion of the first day of trial. This conversation had occurred while the two were standing together outside the courthouse waiting for the arrival of a patrol car to transport them to the county jail. The deputy testified that the appellant, with apparent reference to the testimony elicited earlier that day from his two alleged accomplices, spontaneously remarked to him: “They dropped more dimes on me than Southern Bell.” The deputy said he replied by commenting that if he were ever to consider doing anything like that, he would do it alone, to which the appellant responded, “[I]f I ever do anything else like that, ... I would definitely not do it with anybody.”

“ ‘[Interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U. S. 291, 301 (100 SC 1682, 64 LE2d 297) (1980). In the present case, it does not appear as a matter of law from the evidence that the deputy knew or should have known that his responsive statement was reasonably likely to elicit an incriminating response from the appellant. This was a question of fact to be resolved by the trial court; and we cannot say that the trial court abused its discretion, under the circumstances, in concluding that no interrogation had occurred. It follows that the court did not err in allowing the testimony. Compare Hubbard v. State, 187 Ga. App. 542 (4) (371 SE2d 116) (1988).

5. The trial court instructed the jury that if they determined that the appellant had been in possession of recently stolen property, “that would be a circumstance along with all other evidence from which the jury might infer guilt as to the charge of burglary or theft by taking . . . [u]nless, of course, there should be from the evidence a reasonable explanation of his possession of such property consistent with his plea of innocence, which again is a question solely for you, the jury, to determine.” The appellant challenges this instruction as unconstitutionally burden-shifting. As the charge was couched purely in terms of permissible inferences, this enumeration of error is without merit. See Aiken v. State, 226 Ga. 840 (178 SE2d 202) (1970); Evans v. State, 138 Ga. App. 460 (1) (226 SE2d 303) (1976); Bankston v. State, 159 Ga. App. 342 (4) (283 SE2d 319) (1981). Cf. Suggested Pattern Jury Instructions, Council of Superior Court Judges of Ga., Vol. II (Criminal Cases) at pp. 125-126 (1984 ed.).

Decided May 16, 1989.

Verna L. Smith, for appellant.

Edward D. Lukemire, District Attorney, George R. Christian, Assistant District Attorney, for appellee.

6. The appellant contends that the tried court erred in ordering him to pay restitution to all three victims (including the misdemeanor victims) as a condition of the probation which he received on the burglary conviction. During the sentencing, the trial court initially expressed reluctance to order the appellant to pay restitution and ultimately did so only after appellant’s counsel affirmatively asserted his client’s willingness and ability to pay restitution to each of the three victims as a condition of probation. Quite evidently, counsel’s purpose in doing so was to provide an inducement for the court to allow him to serve a longer portion of his sentence for burglary on probation. Under such circumstances, the appellant will not now be heard to complain on appeal that this condition of probation was unlawful. Compare Robinson v. State, 169 Ga. App. 763 (315 SE2d 277) (1984) (holding that it was error to order a defendant to make restitution with respect to “untried charges”).

7. Based on our review of the transcript, we hold that the evidence was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the three offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0747.
    FLOYD v. THE STATE.
    (382 SE2d 668)
   Sognier, Judge.

Charles James Floyd was convicted of possession of marijuana with intent to distribute and he appeals.

Appellant contends in his sole enumeration of error that the trial court erred by denying his motion to suppress evidence seized pursuant to a search warrant because the warrant was not supported by sufficient facts or information to provide probable cause. Specifically, appellant argues the State failed to present sufficient evidence of the reliability of the informant.

The affidavit provided that the affiant, Special Agent Mike George, was notified by a confidential informant that marijuana and cocaine were present at appellant’s residence, that the informant had visited appellant within the past ten days and seen marijuana and cocaine at the residence and had overheard appellant discussing the sale of the contraband. Agent George averred that he had never in the past received information from this source but that while he was receiving the information, he noted that the informant displayed a truthful demeanor, had apparent motive for supplying the information, and has a personal connection with appellant. The affidavit contained detailed instructions on how to reach appellant’s residence, a mobile home on an unnamed dirt road in Sumter County, and described in depth the mobile home, the outlying building, and various mechanical equipment in the outlying building. The affidavit noted that independent investigation had confirmed that appellant did reside at that location and that the directions to the residence were correct. The affidavit also contained the statement that appellant “has a reputation in the law enforceme[nt] community as being involved in illegal drugs.”

We find the information provided to the magistrate to support the issuance of a search warrant was sufficient under the “totality of the circumstances” analysis as set forth in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The information provided detailed directions to appellant’s residence, confirmed as accurate by police officers prior to seeking the affidavit, see Walker v. State, 146 Ga. App. 572 (1) (246 SE2d 690) (1978); the affidavit properly included appellant’s reputation in the law enforcement community, see Hayes v. State, 182 Ga. App. 319, 320 (1) (355 SE2d 700) (1987); and the affiant noted in the affidavit the informant’s truthful demeanor and the informant’s personal connection with appellant. See Futch v. State, 178 Ga. App. 115, 116 (1) (342 SE2d 493) (1986). “ ‘ “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth . . . before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis’ for concluding that probable cause existed.” ’ [Cit.] . . . Using the common-sense approach under the totality of circumstances rule, it is acknowledged that this is a type of subjective finding by the court on a case by case basis. In making a judgment call here, seemingly we must ‘quibble as little as possible on words, and go directly to the substance.’ [Cit.] There is enough substance here; therefore, the judgment should be affirmed.” Bradford v. State, 184 Ga. App. 459, 460-461 (3) (361 SE2d 838) (1987).

Decided May 16, 1989.

J. Michael Greene, for appellant.

John R. Parks, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1207.
    CITIZENS & SOUTHERN CAPITAL CORPORATION et al. v. SWEETWATER HOMES, INC. et al.
    (382 SE2d 399)
   Deen, Presiding Judge.

Appellant sued Sweetwater Homes, Inc., Harold Brooks and Buster Keeton in the State Court of DeKalb County to enforce a written equipment lease agreement. Brooks and Keeton, as individual guarantors, were personally served at their residences in Alabama, and acknowledged service. The complaint alleged that Brooks and Keeton had submitted themselves to the jurisdiction and venue of the DeKalb State Court pursuant to the terms and conditions of their individual guaranties. The leasing agreement, as attached to the complaint, provided: “Guarantor agrees that performance and payment of its obligations under this continuing guaranty shall be made in DeKalb County, Georgia. Guarantor waives personal jurisdiction and submits itself to the jurisdiction and venue of the State Court of DeKalb County.” The defendants neither filed defensive pleadings nor responded to discovery proceedings. Appellant submitted a proposed default judgment, but the trial court sua sponte issued a final order dismissing the complaint for lack of personal jurisdiction, from which this appeal is taken. Held:

“It is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. [Cit.] A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]” Hall v. Gardens Svcs., 174 Ga. App. 856, 857 (332 SE2d 3) (1985). The legislature has expressly declared that jurisdiction of the person may be waived insofar as the rights of the parties are concerned. OCGA §§ 15-1-2; 9-11-12 (h) (1). See Lott v. City of Waycross, 152 Ga. 237, 241 (110 SE 217) (1921). Also “[t]he requirement for personal jurisdiction may be waived, between the parties, by execution of a valid acknowledgment of service. [Cits.]” Newell v. Brown, 187 Ga. App. 9, 10 (369 SE2d 499) (1988); accord Cotton v. Ruck, 157 Ga. App. 824 (278 SE2d 693) (1981). And, “[o]f course, the parties may by contract stipulate that the law of another jurisdiction will govern the transaction. See OCGA § 11-1-105 (1) [and cits.]” Wallace v. Harrison, 166 Ga. App. 461, 463 (304 SE2d 487) (1983). Consequently, we conclude that the trial court erred in dismissing appellant’s complaint for lack of personal jurisdiction.

Decided May 16, 1989.

Marshall H. Jaffe, for appellant.

Harold Brooks, pro se.

Judgment reversed.

Birdsong and Benham, JJ., concur.


text:
    A89A1225.
    GAREL v. GEORGIA INSURERS’ INSOLVENCY POOL.
    (382 SE2d 400)
   Deen, Presiding Judge.

Appellant Garel sustained injuries in an automobile accident and was hospitalized in Grady Memorial Hospital in Atlanta. His no-fault insurer, Reserve Insurance Company, had become insolvent and therefore did not pay the hospital bill. Some three months after the hospitalization Garel presented to the Georgia Insurers’ Insolvency Pool (insolvency pool) the necessary proofs of entitlement to no-fault benefits; the insolvency pool paid the bill shortly after receipt of these proofs, but retained the portion of the payment equal to that already paid to the hospital by Garel’s health insurance carrier, and did not pay this sum to Garel until some four years later. Garel brought an action against the insolvency pool, alleging bad faith and seeking punitive damages, attorney fees, and costs. Two years later Garel amended his complaint, adding a second count alleging fraud.

In its brief filed in response to the amended complaint, the insolvency pool raised a counterclaim alleging that Garel had filed a fraudulent claim and seeking damages, attorney fees, and costs. The trial court entered an order in December 1988 granting the insolvency pool’s motion to dismiss Garel’s claim for punitive damages and also granting Garel’s motion to dismiss the defendant/appellee’s counterclaim on the ground that the latter was a compulsory counterclaim and therefore, not having been raised at the time of the answer to the original complaint, was barred.

In January 1989 the trial court entered an order dismissing Count II of plaintiff Garel’s amended complaint “for the same reasons dismissal was granted on Count I.” On appeal Garel enumerates as error the trial court’s granting appellee insolvency pool’s motion to dismiss Count I (of the original complaint), the granting of defendant/áppellee’s motion to dismiss Counts I and II of the amended complaint, and the dismissal of the amended complaint in toto.

Decided May 16, 1989.

J. Edward Wall, Jr., for appellant.

Wilbur C. Brooks, for appellee.

In the cited orders the trial court set forth as authorization for its disposition of the motions OCGA §§ 33-36-2; 33-36-3; 33-36-9; and 33-34-6, together with Colwell v. Voyager Cas. Ins. Co., 184 Ga. App. 842 (363 SE2d 310) (1987). Appellant contends that the cited statutory and case law are inapplicable in the instant case because it is the alleged liability and bad faith of the agents and employees of the insolvency pool — not those of Garel’s insolvent no-fault insurance carrier — that is at issue here. Held:

Our review of the record of the instant case, together with the relevant authorities, indicates that none of appellant’s enumerations is meritorious. OCGA § 33-36-3 (2) (G) expressly excludes “any claim or judgment for punitive damages and attorney’s fees associated therewith against any insolvent insurer, its insured, or the insurer’s insolvency pool.” In Colwell v. Voyager Casualty Ins. Co., supra, this court held at 844: “A legal claim for damages under OCGA § 33-34-6 as against an insolvent insurer is not and has never been a potential obligation of the [insolvency pool].” Specifically addressing a contention identical to Garel’s regarding the effective date of subsection (G) and its purported modification of the section as originally enacted, this court further held, at 843, 844: “ ‘ “From the addition of words it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication” ’ . . . [T]he effect of amending OCGA § 33-36-3 (2) in 1985 so as to add subsection (G) was merely to make explicit that which the statutory provision had previously made only implicit. Thus, the result of the enactment of OCGA § 33-36-3 (2) (G) was only to change the clarity with which the statute originally spoke, and not to change the remedy for which the statute was originally enacted.”

We find no error in the proceedings below.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0270.
    GILBERT v. THE STATE.
    (382 SE2d 630)
   Sognier, Judge.

Douglas Lamar Gilbert was convicted of one count of aggravated child molestation and two counts of child molestation involving his stepdaughter, who was nine years old at the time of the incident, and he filed this appeal.

1. Appellant enumerates the general grounds, contending that the uncorroborated testimony of the victim was insufficient proof of the charged crimes, and that the State did not prove he committed aggravated child molestation after July 1, 1984, the effective date of OCGA § 16-6-4 (c) (Ga. L. 1984, p. 685, § 1).

The victim, who was thirteen at the time of the trial, testified that during the time at issue she lived with her mother, who was employed full time, and appellant. The victim testified that over a period of months appellant, who was unemployed at the time, would be at home when she arrived from school, and that on several occasions he touched her breasts and genitals, attempted to pull her head toward his penis, masturbated in front of her, and once removed her underwear and kissed her vagina. She stated that the acts occurred in their house and at a nearby park, and that appellant’s actions continued throughout the 1984-85 school year and into the summer of 1985 until she reported the incidents to her father and stepmother, who contacted authorities and arranged for the victim to move in with them. The victim also stated that her mother was pregnant during that year and appellant informed her that “the reason why he was doing this to me was because mom couldn’t fulfill his needs and that she couldn’t have sex with him anymore.”

“There is no requirement that the testimony of the victim of child molestation be corroborated. [Cit.]” Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988). Construing the evidence and inferences therefrom in favor of the verdict, we conclude a rational trier •of fact could have found appellant guilty of the charged offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Thompson v. State, 187 Ga. App. 563 (370 SE2d 819) (1988). Further, given the evidence adduced at trial, the jury was authorized to conclude that the aggravated molestation involving the act of sodomy in violation of OCGA § 16-6-4 (c) was committed after July 1, 1984.

2. Appellant next enumerates as error the trial court’s denial of his motion for mistrial made after the victim referred to a polygraph test. The record reveals that in response to a question on redirect inquiring where she went after talking with a state child welfare representative, the victim stated, “I’m not sure if it’s — when we had to go to take the lie detector test.” The trial judge denied appellant’s motion for a mistrial, but did give curative instructions to the jury, after which appellant renewed his motion.

This evidence was clearly inadmissible, as the parties had not stipulated to the admissibility of the results of any polygraph test, and did give the jurors a basis for inferring that the victim passed the test, thus bolstering her credibility. See Williams v. State, 251 Ga. 749, 803-804 (15) (312 SE2d 40) (1983). However, as there is no indication the prosecutor solicited the information, compare id., the answer was not responsive to the question and did not directly reveal that the victim had passed the test, and the trial court gave curative instructions, we find no abuse of discretion in the denial of the mistrial motion. See Snell v. State, 160 Ga. App. 74-75 (1) (286 SE2d 52) (1981).

3. Appellant also contends the trial court erred by denying his motion for mistrial made after the State’s expert witness on the child abuse accommodation syndrome testified that the victim had experienced nightmares.

The record reveals that the State offered the testimony of Dr. Guy Jordan, a licensed psychologist, on the characteristics of the child abuse accommodation syndrome. After the State’s offer of proof, the court ruled that the testimony was admissible but that the witness should confine his testimony to elements of the syndrome and anything he personally observed when treating the victim. In response to a question from the prosecutor concerning how often he saw the victim, Dr. Jordan stated that he initially saw her twice a week “because she was exhibiting some depression and some problems with nightmares.” Appellant contends the trial court should have granted his ensuing motion for mistrial because the statement concerning nightmares, which the witness previously had testified were sometimes a component of the syndrome, was based on hearsay and also went to the ultimate issue to be decided by the jury.

We do not agree. Although the challenged testimony may have been outside the scope of the trial judge’s instructions, it was based on a statement made by the victim during the course of medical diagnosis or treatment and thus was admissible under OCGA § 24-3-4. Southern R. Co. v. Lawson, 256 Ga. 798, 801-802 (3) (353 SE2d 491) (1987); see Sparks v. State, 172 Ga. App. 891, 892 (2) (324 SE2d 824) (1984). Further, Dr. Jordan’s statement did not fall within the category of impermissible expert testimony because he did not give his opinion that the victim had been molested or that she was suffering from the child abuse accommodation syndrome. Compare Allison v. State, 256 Ga. 851-853 (1-6) (353 SE2d 805) (1987).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided May 5, 1989

Rehearing denied May 17, 1989

Sexton, Turner & Moody, Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Lisa Ann Curia, Assistant District Attorney, for appellee.


text:
    A89A0330.
    ALL RISK INSURANCE AGENCY, INC. v. BELK.
    (382 SE2d 361)
   Sognier, Judge.

All Risk Insurance Agency, Inc. appeals from a jury verdict and judgment entered against it on a claim brought by Wanda Belk, a former agent, for recovery of unpaid commissions.

Construed to uphold the verdict, the evidence adduced at trial discloses that appellee was employed by appellant as an insurance sales agent from March 1986 until her termination in September 1987, and that her duties included selling insurance policies and servicing existing accounts as needed. At the time relevant to this action appellee was paid a commission of four percent on net sales (premiums received for policies sold less any prorated chargebacks for can-celled policies). Commissions were credited to her producer account as policies were sold, but she received a set amount twice a month regardless of the actual volume of her sales. Appellee’s account contained a net balance of $5,166.70 when she was terminated, which is the amount the jury awarded.

1. Appellant enumerates the general grounds, and also contends the trial court erred by submitting the claim to the jury on the alternative theories of breach of contract and quantum meruit rather than requiring appellee to elect her remedy.

Although the jury did not specify the theory of recovery on which its verdict was based, we find ample evidence to authorize a verdict on the express contract theory. We find no merit in appellant’s argument that appellee was entitled to receive commissions only for policies she serviced throughout the policy period, as the evidence supported a finding that the commissions were based on sales alone. Appellant’s argument that appellee did not prove the amount of net sales on which she was entitled to receive a commission is similarly without merit, as appellant presented no evidence that it should be credited with any chargebacks for cancelled policies even though the trial occurred almost a year after appellee’s termination.

Further, there was no error in submission of both the contract and quantum meruit counts to the jury, as appellee was not required to elect between the two theories prior to the jury’s verdict. Hardin v. Hunter, 174 Ga. App. 756, 757 (3) (331 SE2d 83) (1985). Although election of remedies should occur before judgment is rendered, see id., we find no reversible error in the failure to make such an election here because there was no risk of double recovery, compare UIV Corp. v. Oswald, 139 Ga. App. 697, 700 (229 SE2d 512) (1976), and appellant waived this issue by failing to object below. See generally DuBois v. Ray, 177 Ga. App. 349, 353 (5) (339 SE2d 605) (1985).

Decided April 27, 1989

Rehearing denied May 17, 1989

Glenville Haldi, for appellant.

Bassett, Gerry, Friend & Koenig, Rhonda L. Klein, William D. Friend, for appellee.

2. Appéllant contends the trial court’s charge on interest awardable for breach of contract impermissibly allowed the jury to award interest on a quantum meruit recovery, and that the verdict form improperly combined interest and principal.

We do not agree. The instruction on prejudgment interest was given as part of the court’s charge regarding breach of contract and the damages recoverable therefor, and the trial judge did not state or suggest that interest could be awarded on a quantum meruit theory of recovery. Read as a whole the charge was “sufficiently clear to be understood by jurors of ordinary capacity and understanding [cit.]” Allison v. Keller Indus., 186 Ga. App. 175, 176 (1) (367 SE2d 70) (1988), and thus we find no reversible error. See generally id. Any error in the manner in which the case was submitted to the jury was waived by appellant’s failure to object with the requisite specificity or submit an alternative verdict form at the court’s invitation. Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82, 83-84 (1) (357 SE2d 807) (1987). Moreover, the fact that the jury rendered a verdict for the exact amount remaining in appellee’s account indicates no interest was awarded.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0376.
    ECHOLS v. CLARK.
    (382 SE2d 646)
   Sognier, Judge.

Mary Jane Echols brought suit against Charles E. Clark, an attorney, alleging professional malpractice in his handling of her claim for recovery of insurance benefits. The trial court denied Echols’ motion for partial summary judgment as to liability and granted Clark’s motion for summary judgment, and Echols appeals.

The record reveals that appellant was a named insured on an automobile liability insurance policy issued to her husband by Sentry Insurance Company in 1974, prior to the effective date of the Georgia Motor Vehicle Accident Reparations Act (Ga. L. 1974, p. 113). The policy provided for basic personal injury protection (PIP) coverage of $5,000 plus $3,000 in medical expense coverage. Linda Gardner, a Sentry claims unit manager, testified by affidavit that on or before January 1, 1975, Sentry sent notices by first class mail to all policyholders at their policy addresses informing them of the new PIP coverage options and including a return form that allowed the policyholders to accept or reject the proffered coverage. Gardner averred that a second such notice, identical to the first, was sent in late January 1975, and that a thorough search of Sentry’s records failed to uncover any evidence that appellant or her husband returned a notice form at any time after the 1975 mailings.

Appellant was injured in an automobile accident on April 9, 1977. She received an uninsured motorist coverage settlement from Sentry and signed a release, but then hired appellee to file suit on the policy to recover increased optional PIP benefits. Appellee filed the action against Sentry on June 15, 1983, and this court held that the claim was barred for failure to file within the six-year limitation period. Sentry Ins. v. Echols, 174 Ga. App. 541 (330 SE2d 725) (1985). Appellant then filed the instant action.

Appellant contends the trial court erred by denying her motion for partial summary judgment as to liability and granting appellee’s summary judgment motion because material questions of fact remain regarding whether appellant would have prevailed on her claim against Sentry, and thus the issue of whether appellee’s negligence proximately caused appellant’s alleged damages should be decided by a jury. We do not agree.

A necessary element for recovery in an action for legal malpractice is proof that the attorney’s negligence proximately caused the client’s damages. Parten v. Swan, 183 Ga. App. 364, 365 (358 SE2d 906) (1987). Thus, the case at bar is viable only if appellant had a meritorious claim against Sentry that was compromised by appellee’s negligence. There is no dispute that appellant’s claim against Sentry depended on her entitlement to increased optional no-fault PIP benefits offered to Sentry policyholders who were insured prior to March 1, 1975. At the time pertinent to this action, OCGA § 33-34-5 (c) provided that “[o]n and after March 1, 1975, all named insureds in existing motor vehicle liability policies who have not previously responded to an offer to accept or reject the optional coverages required to be offered by [the Georgia Motor Vehicle Accident Reparations Act] shall be given an opportunity to accept or reject, in writing, the optional coverages required to be offered under this Code section; provided, however, that the failure of an insured to notify his insurer of his written acceptance or rejection within 30 days after written notice of the offer has been mailed by the insurer, postage prepaid, by first class mail to the address stated in the policy shall constitute a rejection of the optional coverage.” To constitute effective notice under this statute, the mailing sent by the insurance company “must include a document containing (1) written information clearly stating the optional no-fault PIP coverage . . . and (2) a means for the insured to make a written acceptance or rejection of each.” Wiard v. Phoenix Ins. Co., 251 Ga. 698, 700 (310 SE2d 221) (1983).

Decided May 9, 1989

Rehearing denied May 17, 1989

E. Graydon Shuford & Associates, E. Graydon Shuford, George P. Graves, for appellant.

Construing the evidence in favor of appellant as respondent on appellee’s motion for summary judgment, we find the trial court correctly concluded that appellant would not have prevailed in her suit against Sentry, as the record shows the documents mailed by Sentry complied with the statutory notice requirements, see Stafford v. Allstate Ins. Co., 252 Ga. 38-39 (1) (311 SE2d 437) (1984), and proof of actual receipt by the insured is not required. Id. at 39. Contrary to appellant’s assertion, there is no requirement that the notice be mailed after March 1, 1975. Wiard v. Phoenix Ins. Co., 166 Ga. App. 47, 50 (3) (303 SE2d 161) (1983), rev’d on other grounds, 251 Ga. at 700-701. Because there is no evidence appellant returned the form, appellant is considered to have rejected the optional increased PIP coverage, and therefore was not entitled to recover from Sentry. OCGA § 33-34-5 (c); see Stafford, supra at 38-39 (1). “It thus appears that if appellee was negligent in failing to [file the action against Sentry before the expiration of the statute of limitation], it has resulted in no harm to appellant because [the undisputed facts show appellant was not entitled to recover on her claim against Sentry for increased PIP benefits as a matter of law]. Since one of the necessary elements in a suit for legal malpractice is proof that the attorney’s negligence proximately caused the client’s damages, and appellee has negated that element, the grant of summary judgment was correct. [Cit.]” Parten, supra at 365-366. Similarly, denial of appellant’s motion for partial summary judgment was proper, as she was not entitled to judgment on the issue of liability as a matter of law. See generally Sasser v. Mixon Contracting, 181 Ga. App. 710, 712-713 (1) (353 SE2d 525) (1987).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Freeman & Hawkins, H. Lane Young II, Thomas F. Wamsley, Jr., for appellee.


text:
    A89A0507.
    BRUCE v. THE STATE.
    (382 SE2d 367)
   Banke, Presiding Judge.

Appellant Bruce was stopped by a Georgia state trooper on 1-95 in Glynn County, Georgia, for doing 65 m.p.h. in a 55-m.p.h. zone. After asking to see the appellant’s driver’s license and vehicle registration, the trooper determined that the car was a rental vehicle and that, although it had been rented to an individual named Natasha Wright (who was not present), the appellant was listed on the rental agreement as an additional driver. The trooper testified that he originally intended merely to give the appellant a warning ticket but, because the appellant seemed overly “talkative,” decided first to question a passenger who was present in the vehicle to confirm certain information the appellant had offered regarding the nature and purpose of their travels. Both men indicated that they were returning to the Washington, D. C., area from Miami; however, the appellant insisted that they had driven to Miami, while the passenger maintained that they had flown there.

His suspicions thus heightened, the trooper asked the appellant and the passenger if they would have any objection if he “looked in the car.” Both responded in the negative and then acceded to his request that they wait in the back of the patrol car while he did so. While the trooper acknowledged that it would not have been possible for the men to open the back doors of the patrol car from the inside, he testified that he assured them that they were not under arrest and left the window “cracked” so they could let him know if they needed anything.

After first searching the passenger compartment of the vehicle without discovering or detecting any contraband, the trooper opened the trunk and began a search of its contents. Immediately upon doing so, he detected an odor of marijuana and soon thereafter found a package containing approximately 2,000 grams of cocaine located inside a brown shopping bag on the floor of the trunk. He then discovered approximately nine pounds of marijuana enclosed inside one of the luggage bags in the trunk. On the basis of these discoveries, the appellant and the passenger were jointly indicted and tried for trafficking in cocaine and possession of marijuana with intent to distribute. They were both acquitted on the cocaine charge and were found guilty merely of simple possession on the marijuana charge. The appellant filed this appeal from the denial of his motion for new trial. Held:

1. Given the appellant’s status as the authorized driver of the vehicle, a rational trier of fact could reasonably have concluded beyond a reasonable doubt that he was in knowing possession of the contraband seized from the trunk. See Robinson v. State, 175 Ga. App. 769 (2) (334 SE2d 358) (1985); Breedlove v. State, 189 Ga. App. 527 (1) (376 SE2d 222) (1988); Watson v. State, 190 Ga. App. 96 (378 SE2d 378) (1989).

2. It would appear to be undisputed that the trooper lacked probable cause to search the vehicle and that the validity of the search is therefore dependent on whether the appellant freely and voluntarily consented to it. The appellant contends that the search exceeded the scope of his consent and that the contraband should consequently have been suppressed, arguing that his statement to the trooper that he would have no objection if the trooper “looked in the car” could not reasonably be considered an expression of consent to a search of the vehicle’s trunk. However, during the trial of the case, the appellant freely acknowledged that he had intended to give the trooper permission to search the trunk, testifying as follows: “I did not know anything about the drugs were in there, and ... if I did I would not have gave [the trooper] the chance to even go in the trunk. I would have talked even more or maybe [told] him, no, sir, you couldn’t go in there, but... I said go right on in. I did not hesitate, I said, sure, go right in.”

The question of whether or not a defendant freely consented to a search is determined by reference to the totality of the circumstances, and there is no per se rule requiring the suppression of the fruits of a consent search conducted while the defendant is being held pursuant to an unlawful arrest. Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981). Cf. Raney v. State, 186 Ga. App. 758 (368 SE2d 528) (1988). Moreover, in reviewing the denial of a motion to suppress, “this court can consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial.” Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988), citing Sanders v. State, 235 Ga. 425, 431-2 (219 SE2d 768) (1975).

Even assuming for the purpose of argument that the appellant was unlawfully confined in the back of the patrol car at the time the search was conducted, we must conclude on the basis of his trial testimony that he consented to the search freely and voluntarily. We accordingly hold that the court did not err in denying his motion to suppress.

3. The appellant contends that the trial court erred in refusing to instruct the jury on his “defense” that mere presence at the scene of a crime is insufficient to establish guilt. “Mere presence at the scene of

the crime is not a recognized defense to a criminal charge. Rather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.” Muhammad v. State, 243 Ga. 404, 406 (254 SE2d 356) (1979). The trial court gave a full and correct charge on the presumption of innocence and on the requirement that the state prove each and every element of the offenses charged, including the element of criminal intent, beyond a reasonable doubt. Moreover, the court’s instructions with reference to the offense of criminal possession left no doubt that such possession must be knowing in order to be culpable. The state was by no means relying on the appellant’s mere presence at the scene to establish his guilt; and the trial court did not err, under the circumstances, in refusing to give the requested charges. Accord Muhammad v. State, supra; Ousley v. State, 158 Ga. App. 186 (279 SE2d 490) (1981). Compare Cooper v. State, 180 Ga. 612 (180 SE 103) (1935).

4. Nor did the trial court err in refusing to charge on the doctrine of equal access. “[T]he equal access doctrine does not apply where the defendants are alleged to have joint. . . possession of the contraband, as was the case here.” Howard v. State, 185 Ga. App. 215, 216 (363 SE2d 621) (1987), citing Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985). Although the appellant contends on appeal that the individual in whose name the vehicle had been rented might have placed the contraband in the trunk, there was no indication that this individual ever had access to the vehicle.

5. The appellant contends that the trial court erred in failing to charge on the weight to be given evidence of good character. However, although the appellant presented a number of character witnesses, he failed to request such a charge. “While the good character of an accused person is a substantive fact, and evidence of such character should be weighed and considered by the jury in connection with all the other evidence in the case, still such good character of the accused is not a distinct substantive defense. A proper instruction should be given in every case where the accused puts his character in issue; but in the absence of a timely request, an omission to give a specific charge on the subject will not require a new trial. It is only in exceptional cases where the court fails to charge relatively to the good character of the accused that a new trial should be granted. [Cit.]” Scott v. State, 137 Ga. 337 (3) (73 SE 575) (1911). Accord Spear v. State, 230 Ga. 74, 76 (195 SE2d 397) (1973). Finding nothing exceptional about the circumstances of this case, we find this enumeration of error to be without merit.

6. The trial court did not err in refusing to give the appellant’s requested charge that a conviction on circumstantial evidence would be warranted only if the evide'nce excluded every reasonable hypothesis save that of the guilt of the accused. See generally OCGA § 24-4-6. “Such a charge is required only when the evidence relied on for conviction is entirely circumstantial. [Cit.]” Todd v. State, 184 Ga. App. 750, 752 (4) (362 SE2d 400) (1987). The evidence against the appellant in this case was not entirely circumstantial, inasmuch as it was shown by direct evidence that he was in actual physical possession and control of the vehicle from which the contraband was seized.

Decided May 1, 1989

Rehearing denied May 17, 1989.

Lane & Tucker, Alan D. Tucker, Robert L. Crowe, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

7. “Although the trial court may have failed to consider appellant’s motion for appeal bond under the standards in Birge v. State, 238 Ga. 88 (230 SE2d 895) (1978), the issue is moot because we affirm the conviction.” Lawson v. State, 242 Ga. 744, 745 (2) (251 SE2d 304) (1978).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0691.
    SHAW v. McDONALD’S RESTAURANTS OF GEORGIA, INC.
    (382 SE2d 632)
   Sognier, Judge.

Doris Faye Shaw brought suit against McDonald’s Restaurants of Georgia, Inc. (McDonald’s) seeking damages for injuries she sustained when she slipped and fell as she was entering a restaurant operated by McDonald’s in Fort Oglethorpe, Georgia. The jury returned a verdict in favor of McDonald’s, and Shaw appeals from the judgment entered thereon.

The record reveals that on October 9,1985, at approximately 5:00 p.m. appellant parked her car in appellee’s parking lot and walked through a canopied area normally used as a drive-through for automobiles to approach the front door of the restaurant. On that day the drive-through was closed because the parking lot was being resurfaced. While walking through the drive-through area, appellant slipped on what she alleged was an unseen puddle of grease or motor oil, and injured her knee. The only significant factual dispute at trial concerned whether cautionary flags and rope placed around the drive-through area as a barrier by employees of the independent company working on the parking lot were in place at the time appellant crossed the area.

Appellant testified the ropes and flags were not in place, but were lying on the ground, while employees of the company working on the parking lot testified the ropes were in place, having been looped around orange safety cones. One of those employees testified that the string of flags “would either have to be stepped over or moved and stepped through” in order to traverse the drive-through. Kathy Brown, the restaurant manager on the day in question, testified that she started her shift about 4:00 p.m. Because she was closing the store that night and was therefore required to park as close to the front door as possible, she had to cross the drive-through, and she remembered the rope barrier was in place at that time because she “had to step over the flags to get in.” Brown further testified she checked the drive-through about 30 minutes after appellant fell, and the rope and flag barrier was still up.

1. Appellant contends the trial court erred by instructing the jury on the standard of care owed by an owner of premises to a licensee, when all the evidence demonstrated that appellant was not a licensee but an invitee. We do not agree. Because of the conflicting testimony regarding the flag and rope barrier, appellant’s status was a question for the jury, which would have been authorized under the evidence presented to decide that at the time she fell, appellant was either a licensee or an invitee. There is little question that when she parked her car in appellee’s lot, intending to enter the restaurant and purchase a meal, appellant was an invitee. Coffer v. Bradshaw, 46 Ga. App. 143, 148 (167 SE 119) (1932). However, because appellant’s fall occurred in an area which the jury would have been authorized to conclude was off limits to patrons of the restaurant, the evidence supported a conclusion that appellant had exceeded the scope of her invitation, thus transforming her status from invitee to licensee. See Augusta Amusements v. Powell, 93 Ga. App. 752, 756 (92 SE2d 720) (1956); see also Bronesky v. Estech, Inc., 170 Ga. App. 724-725 (318 SE2d 194) (1984). Accordingly, the trial court did not err by charging the jury on the duty owed to licensees.

2. Appellant also enumerates as error the trial court’s failure to give four of her requested charges. Our review of the charge as a whole reveals that the substance of appellant’s requests to charge 1, covering the definition of an invitee, 2, regarding the duty owed by the property owner to one who is an invitee, and 6, regarding an invitee’s duty to observe and discover patent but not latent defects, was amply covered by the trial court, although not in the same language requested by appellant. Appellant’s request to charge 5, which sought to instruct the jury that a “slight deviation . . . from the exact route that [appellant] would ordinarily have taken, entering on or leaving the [appellee’s] premises” would not change appellant’s status as an invitee, was both not adjusted to the evidence and also argumentative in assuming that appellant’s walk across the drive-through was but a “slight deviation” when the conflicting evidence as to whether that area was effectively barricaded to prevent customers from entering created a jury question. A requested charge is properly refused when “the principle involved [is] substantially covered in the court’s general charge, the requested language [is] not adjusted to the evidence, or the requested language [is] argumentative. [Cit.]” Spicewood, Inc. v. Dykes Paving &c. Co., 185 Ga. App. 397, 399 (4) (364 SE2d 298) (1987). Accordingly, the trial court did not err by refusing to give these requested charges.

Decided May 5, 1989 —

Rehearing denied May 17, 1989

John W. Davis, for appellant.

Richard K. Murray, Cynthia N. Johnson, L. Hugh Kemp, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0698.
    FREY et al. v. PEPSICO, INC. et al.
    (382 SE2d 648)
   Banke, Presiding Judge.

The appellants brought the present action against the appellees, PepsiCo, Inc., and Pepsi-Cola Bottling Company of Crisp, Inc., (hereinafter referred to as “the Bottler”) to recover for personal injuries they allegedly sustained when their vehicle was struck by a Pepsi-Cola delivery truck. The truck was owned by the Bottler and was being driven at the time by one of its employees. There would appear to be no question that the Bottler may be held vicariously liable for the alleged negligence of the driver pursuant to the doctrine of respondeat superior. At issue in this appeal is whether PepsiCo, Inc., which had licensed the Bottler to bottle and sell its Pepsi-Cola soft drink, may also be held vicariously liable for the driver’s alleged negligence on the theory that it controlled the operations of the Bottler.

The suit was filed in Fulton County, where PepsiCo, a foreign corporation, maintains a registered agent for service of process. The Bottler is a Georgia corporation whose registered agent and principal office are located in Crisp County. Concluding that there was no basis upon which PepsiCo could be held liable for the driver’s negligence under the circumstances, the trial court granted that company’s motion for summary judgment; and as this ruling eliminated any jurisdictional basis for entertaining the claim against the Bottler in Fulton County, the court simultaneously ordered the case transferred to Crisp County pursuant to Rule 19.1 of the Uniform State Court Rules. This appeal followed.

PepsiCo is in the business of manufacturing Pepsi-Cola concentrate, or syrup, which it sells to licensees such as the appellee Bottler. Such licensees use the syrup to manufacture and bottle the finished soft drink, which they then sell in their licensed distribution territories for their own account. It is undisputed that PepsiCo has no ownership interest in the Bottler named as a defendant in this case. Pursuant to the licensing agreement which governs the relationship between the two companies, the Bottler is required to maintain sufficient production capacity to adequately service its territory, to refrain from selling any other cola beverages, and to “follow precisely the instructions” of PepsiCo in the bottling, packaging, and selling of Pepsi-Cola. It is also required to “push vigorously the sale of bottled Pepsi-Cola throughout [its] entire territory,” to “service all accounts with frequency adequate to keep them at all times fully supplied with Pepsi-Cola,” and to “use [its] own salesmen and trucks, (or salesmen and trucks of independent distributors, of whom [PepsiCo] approves), in quantity adequate for all seasons. . . .” With specific reference to the latter aspect of the Bottler’s operations, the agreement further provides as follows: “All trucks used in the Pepsi-Cola operation hereunder shall be painted only with standard Pepsi-Cola colors and trade-mark and will be maintained at all times in good condition and appearance. The Bottler shall provide standard Pepsi-Cola uniforms for all route salesmen.” Held:

1. “The need for controls over the use of a trade name, in a franchise agreement authorizing such use, has generally been recognized. [Cits.] And in Georgia it has been held that a franchise contract under which one operates a type of business on a royalty basis does not create an agency relationship. Arthur Murray, Inc. v. Smith, 124 Ga. App. 51 (183 SE2d 66) [1976].” Buchanan v. Canada Dry Corp., 138 Ga. App. 588, 591 (226 SE2d 613) (1976).

The evidence of record in this case reveals no basis upon which PepsiCo could be held vicariously liable for the alleged negligence of the Bottler’s driver. While it is true that PepsiCo retained a substantial amount of control over the Bottler’s manufacturing and packaging operations, there is no suggestion that it retained or exercised any supervisory control over the hiring and firing of the Bottler’s route salesmen or over the time, manner, and method of their performance. Compare Ledbetter v. Delight Wholesale Co., 191 Ga. App. 64 (380 SE2d 736) (1989). Nor is there any evidence which would suggest that the Bottler was acting as the mere instrumentality or alter ego of PepsiCo in delivering the product, rather than as a distinct and independent business entity. See generally OCGA § 51-2-4; Raynor v. American States Ins. Co., 176 Ga. App. 564 (1) (337 SE2d 43) (1985). The mere fact that the Pepsi-Cola trademark was exhibited on the Bottler’s vehicles and on the uniforms of its drivers is insufficient, in and of itself, to warrant such a finding under the circumstances. Accord Manis v. Gulf Oil Corp., 124 Ga. App. 638, 640 (185 SE2d 589) (1971). Compare Buchanan v. Canada Dry, supra (where the bottler also used the Canada Dry name rather than its own in the telephone directory and in answering its telephone). Similarly, the fact that the Bottler’s trucks carried PepsiCo products exclusively provides no basis, under the circumstances, for an inference that it did so as a servant or mere instrumentality of PepsiCo. Compare White v. Morris, 114 Ga. App. 618 (152 SE2d 417) (1966) (holding that, where a retail corporation leased its delivery trucks to another company to be used exclusively for transporting the lessor corporation’s merchandise, it could be inferred that the lessee corporation was acting as the servant of the lessor corporation in making such deliveries); McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313-4 (290 SE2d 487) (1982) (holding that, notwithstanding a contractual designation to the contrary, an individual hired by a finance company to repossess an automobile could be considered the servant of the finance company in carrying out that activity, since “the activity in question [was] one which would ordinarily be regarded as part of the employer’s regular business operations, [was] one which the employer regularly employed] people to carry out, and [was] one which [was] generally carried out by subordinates.”)

We reject the appellants’ contention that PepsiCo may be considered liable for the actions of the driver based on the doctrine of ostensible or apparent agency. Unless the appellants chose to be hit by the Bottler’s truck, that doctrine has no application under the present circumstances, inasmuch as it requires reliance on the apparent agency relationship. See Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508-9 (361 SE2d 164) (1987). Finding no basis for an inference that either the Bottler or its driver was acting as servants or instrumentalities of PepsiCo with respect to the operation of the delivery vehicle, we hold that the trial court acted correctly in granting PepsiCo’s motion for summary judgment.

2. The appellants contend that the trial court erred in considering certain affidavits submitted by PepsiCo on the issue of whether an agency relationship existed between that company and the Bottler. However, as no ruling was ever elicited from the court with respect to those affidavits and as the record supports the court’s grant of summary judgment to PepsiCo even without them, this enumeration of error presents nothing for review.

3. Because the elimination of PepsiCo as a defendant in the action also eliminated any basis for the assertion of venue in Fulton County, the trial court did not err in transferring the action to the county of residence of the remaining defendant.

Decided May 9, 1989

Rehearing denied May 17, 1989

Robert A. Falanga, Jesse E. Barrow III, for appellants.

Carr, Tabb & Pope, W. Pitts Carr, Eric E. Huber, for appellees.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0763.
    EASLEY, McCALEB & STALLINGS, LTD. v. GATEWAY MANAGEMENT et al.
    (382 SE2d 373)
    Decided May 8, 1989
    Rehearing denied May 17, 1989.

      James W. McKenzie, Jr., for appellant.

      Trauner, Cohen & Thomas, Russell S. Thomas, for appellees.
   Sognier, Judge.

Easley, McCaleb and Stallings, Ltd. (“EMS”) obtained a judgment against Brentwood Financial Corporation and subsequently filed a garnishment action against Gateway Management. The trial court found that the payments made to Brentwood by Gateway were payments due to a third party, Walt Silber, who had directed Gateway to forward his payments to Brentwood. Based on its finding that Gateway had incurred no legally enforceable liability to Brentwood or otherwise assumed any continuing obligation in favor of the judgment debtor, the trial court granted judgment in favor of Gateway and denied EMS’s traverse of Gateway’s answer.

EMS filed a direct appeal from that order. OCGA § 5-6-35 (a) (4) requires that an application for discretionary appeal be filed in “[a]ppeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code Section 5-6-34.” The exception as set forth in OCGA § 5-6-34 (a) (5) relates to judgments or orders granting or refusing applications for attachment against fraudulent debtors. Contrary to EMS’s arguments, the exception as set forth in OCGA § 5-6-34 (a) (5) is clearly not applicable here, and thus we must dismiss this appeal for EMS’s failure to follow the proper appellate procedure. OCGA § 5-6-35 (a) (4); see Wallace v. Saks Fifth Ave., 180 Ga. App. 679 (350 SE2d 308) (1986).

Appeal dismissed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0226.
    PERRY v. THE STATE.
    (382 SE2d 402)
   Deen, Presiding Judge.

Lonnie Perry was convicted of two counts of rape and one count of incest.

The evidence showed that Perry was an abusive father and husband who terrorized his family through physical violence, false accusations, and psychological intimidation. One evening he called his common-law wife into their bedroom and falsely accused her of giving drugs to their sixteen-year-old daughter. He claimed that he found a zip-lock bag and some cotton in the daughter’s bedroom. He demanded that she strip and examined each item of clothing as she removed it. He then searched her body for signs of drug use and threatened to hit her on the side of her head with a beer bottle. While she was still naked, he called the daughter into the room and demanded that she “get like her mother.” When she finished undressing, he examined her clothing and ordered her and her mother to lie on their stomachs on the bed. He then proceeded to have sexual relations with the mother. He then got up, saying he “had sex with number one then he was going to have sex with number two.” He started pulling on the girl’s leg, and the mother protested. He began slapping and choking his wife and ordered her to fix him something to eat. She complied because she believed that he would settle down and not harm the children.

While Mrs. Perry was preparing dinner, appellant went to the daughter’s room, demanded that she remove all the clothing that she had just put on, told her to lie down on the bed, and had sexual relations with her. When she cried, he told her to shut up. He left and told his wife to clean up the kitchen. He then returned to his daughter’s room and raped her again.

Testimony also showed that, while appellant had never had sexual relations with his daughter before, he had attempted to do so the previous Saturday. Approximately five days before the rapes, he accused her of drugging his drink and beat her with an electrical cord. There was also testimony that he beat the mother several times a week, that he locked the children in the apartment when they were not in school, and that he kept the only key to the double-cylinder deadbolt lock. He also accompanied his wife to and from work and constantly accused her of having affairs with other men.

The day after the rape, the mother managed to escape in the family automobile and took the children to the home of a friend. The daughter told her mother what her father had done the previous evening, when they were in the automobile. The incident was reported to the police at the friend’s insistence. The mother testified that she did not consent to having sexual relations with appellant in the presence of their daughter.

1. Prior to trial, counsel filed a motion in limine to prevent the prosecution from eliciting testimony as to his client’s drug use. At trial, the mother and daughter during the course of their testimony referred to his drug use. Counsel objected each time and moved for a mistrial. The first time, the wife testified, in response to a question as to whether she was afraid of him, that “he would be all right up until a point till he started to do his drugs.” Upon objection, the court held a hearing outside the presence of the jury, and the witness revealed that she was afraid of the accused because he often beat her and falsely accused her. The court instructed the jury to disregard the witness’ statement about drugs prior to the objection. Other statements made by the witness consisted of obscure references to appellant’s drug use and mentioned his discovery of a piece of cotton and a zip-lock bag, whereupon he accused them of drug use, and the wife testified that she informed him that he had to have brought these items into the house. The daughter also testified as to her mother’s arrival on the evening that they fled their apartment and said that her mother “left him over there at the drug house.”

All of these references to appellant’s drug use were a part of rambling narratives as to the reasons appellant’s acts of violence occurred. The court gave curative instructions after the first one, and after the daughter’s testimony that her mother had left him at a drug house and escaped in the family automobile.

“[W]hen a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b). [Cit.].” Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988). Evidence is admissible which logically tends to prove material facts at issue and which constitute acts and circumstances which serve to elucidate or throw light upon material issues, even where the defendant’s character is incidentally placed in issue. Burney v. State, 252 Ga. 25, 26 (310 SE2d 899) (1984). The testimony in this case which referred to appellant’s drug use falls squarely within the above-cited rules.

2. During closing arguments, the prosecutor stated: “That man . . . is as much a terrorist as those terrorists in the Middle East who kidnap people and hold them hostage. . . . He isn’t going away until you find him guilty. Juries in this country are our last stronghold that we have that keep our society from being . . . make the difference between us being an orderly society or from us being in chaos.” Appellant objected and moved for a mistrial. The court denied the motion.

The prosecutor “may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” Terhune v. State, 117 Ga. App. 59, 60 (159 SE2d 291) (1967). The prosecutor’s reference to appellant as a terrorist is not an unreasonable deduction from the evidence that was presented at trial. “ ‘What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair. The language used in argument may be extravagant; but figurative speech is a legitimate weapon in forensic warfare if there are facts admissible in evidence upon which it may be founded.’ [Cit.] If the challenged remark is not such as would be likely to prejudice the defendant’s right to a fair trial, such will not constitute reversible error. [Cit.]” Davis v. State, 178 Ga. App. 357, 359 (343 SE2d 140) (1986). The use of the word “terrorist” is seemingly less, or no more inflammatory than equating man with a mad dog, an animal or brutes and beasts of the barnyard. Shelton v. State, 146 Ga. App. 763, 766 (247 SE2d 580) (1978). We find no error in the trial court’s failure to rebuke the prosecutor or give curative instructions to the jury.

Decided May 17, 1989.

Jerry Boykin, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Charles W. Smegal, Joseph J. Drolet, Assistant District Attorneys, for appellee.

3. Venue was proved as to those counts pertaining to appellant’s assault upon his daughter. The mother testified that the family lived at a certain address in Fulton County when the offenses occurred. The evidence showed that all the acts for which appellant was tried were committed at that location. “ ‘Evidence as to venue, though slight, is sufficient where there is no conflicting evidence.’ [Cit.]” Arthur v. State, 154 Ga. App. 735 (269 SE2d 887) (1980).

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concurs in the judgment only.


text:
    A89A0349.
    JONES et al. v. VALLEY FORGE INSURANCE COMPANY.
    (382 SE2d 404)
   Sognier, Judge.

Cardell Jones and Henrietta Henry brought suit against Valley Forge Insurance Company asserting that they were insured under a policy issued by Valley Forge, that they incurred a loss of personal property covered by the policy, that they performed all duties required under the policy, but that Valley Forge refused to pay their claim. The trial court granted summary judgment in favor of Valley Forge and this appeal ensued.

Decided May 17, 1989.

William S. Lewis, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Nancy J. Berger, William J. Rawls II, for appellee.

Appellants’ alleged loss occurred on December 8, 1986. On September 29, 1987, appellee informed appellants by letter that it was denying their claim because appellants had materially misrepresented facts and circumstances about their alleged loss and that appellants “should consider the policy void as of this time .... If you wish to proceed with this claim, govern yourself according to the law of this state and the terms of the policy. No defenses will be waived.” The policy between the parties provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” Appellants filed this suit in May 1988.

No question of fact remains that appellee was entitled to summary judgment based on appellants’ failure to file suit within the 12-month limitation period set forth in the policy. See Granville v. Ga. Farm Bureau &c. Ins. Co., 172 Ga. App. 425 (323 SE2d 288) (1984). Appellants’ sole argument on appeal is that appellee cannot rely upon the limitation provision in the policy because appellee declared the policy void in its September 29th letter. However, that argument does not avail appellants because even assuming, arguendo, that the insurance policy was properly rescinded at that time, no policy would exist under which appellants could pursue in law their breach of contract claim. See generally Eller v. McMillan, 174 Ga. 729, 732 (163 SE 910) (1932).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0662.
    SAFECO INSURANCE COMPANY OF AMERICA v. CLAY-RIC, INC. et al.
    (383 SE2d 138)
   Sognier, Judge.

We granted the application of Safeco Insurance Company of America for interlocutory appeal from the denial of its motions for summary judgment brought against Clay-Ric, Inc. and the Georgia Ports Authority (GPA).

This appeal arises out of claims asserted under the “Little Miller Act,” OCGA § 36-82-101 et seq., in two actions pending below. The record reveals that in June 1982, GPA entered into a contract with Pinehurst Corporation for the construction of new facilities at GPA’s ocean terminal in Savannah pursuant to plans and specifications prepared by the engineering firm of Hussey, Gay & Bell, Inc. (HG&B). Appellant, as surety, issued performance and payment bonds for the project. Pinehurst subcontracted with Clay-Ric to perform the paving work on the project. On April 18,1984, Clay-Ric brought suit against Pinehurst, HG&B, and GPA to recover amounts allegedly owed for extra work performed on the project beyond the scope of the subcontract. GPA filed a third-party complaint against appellant on October 5, 1987 based on the payment bond, and Clay-Ric filed a separate action against appellant on the bond on July 24, 1987. Appellant moved for summary judgment in both actions, but the trial court denied the motions.

1. Appellant contends the trial court erroneously concluded the claims against it were not barred by OCGA § 36-82-105. We agree and reverse.

Construed against appellant as the movant, the record reveals that the engineering contract required HG&B to review all pay requests submitted by Pinehurst and “issue or approve all certificates of payment.” The contract also obligated HG&B to “review final payment to [Pinehurst], and submit a final certification to the [GPA] based upon a final inspection of the completed Work, including two (2) complete sets of ‘Record’ drawings.” On September 2, 1983 Richard DeYoung, HG&B’s project engineer, approved Pinehurst’s final pay request and signed the certificate for payment, which GPA approved and paid on September 9th. GPA began occupying all or a part of the project as early as June 1983. However, DeYoung testified by affidavit “[t]hat the [Pinehurst] contract was not completed because defects in the roof of the warehouse were never corrected by Pinehurst and the roof continued to leak preventing use of the warehouse for its intended purpose,” and that he had issued the certificate for final payment in reliance on the affidavit of Pinehurst that all subcontractors and suppliers had been paid, a statement he now considers false because of the outstanding claim of Clay-Ric. The record further discloses that in response to an interrogatory from appellant requesting GPA to “[s]tate the point at which you contend [GPA] accepted the work completed under the contract,” GPA responded that “[t]he Final Pay Estimate was approved for payment on September 9, 1983.” There is no evidence Pinehurst performed any work at the project after final payment was made.

OCGA § 36-82-105 proscribes the filing of an action on a payment bond required under OCGA § 36-82-101 “after one year from the completion of the contract and the acceptance of the public building ... by the proper public authorities.” This statute of limitation “commences at the completion of the actual construction work and acceptance thereof by the public authority.” (Footnote omitted.) U. S. Fidelity &c. Co. v. Rome Concrete Pipe Co., 256 Ga. 661, 662 (353 SE2d 15) (1987). “ ‘[Completion of the contract’ relates to the job performance required of the general contractor and, ‘acceptance’ relates to action by the public authority.” Id. “Completion” does not refer to the public authority’s “own internal policy and procedure.” Id. at 663. In the case at bar, although the parties disagree as to whether the final payment certificate issued by HG&B on September 2, 1983 was the “final certification” called for in the engineering contract, there is no dispute that Pinehurst applied for and received payment for the entire contract work, and that at the time GPA accepted the work and moved into the building. While DeYoung and GPA may now regret their decisions, the record discloses that Pinehurst had completed its job performance and the work had been accepted by GPA as of September 9,1983. Therefore, the third-party complaint of GPA and the complaint of Clay-Ric were barred by the one-year statute of limitation, and appellant’s motions for summary judgment should have been granted. Id. at 663.

Decided May 17, 1989.

Bouhan, Williams & Levy, James M. Thomas, Peter D. Muller, for appellant.

Gerald M. Edenfield, Susan W. Cox, Daniel C. Cohen, Jones, Cork & Miller, C. Ashley Royal, Chamlee, Dubus, Sipple & Walter, George H. Chamlee, Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Stephanie B. Manis, Deputy Assistant Attorney General, J. Robert Coleman, Daniel M. Formby, Senior Assistant Attorneys General, for appellees.

2. Our decision in Division 1 renders moot appellant’s remaining enumeration of error.

Judgment reversed.

Banke, P. J., and Pope, J., concur.