text:
    76008.
    LAWRENCE et al. v. THE STATE.
    (369 SE2d 531)
   Beasley, Judge.

Appellants Lawrence and Robinson were convicted of trafficking in cocaine, OCGA § 16-13-31 (a) (1), and possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (5). Appeal is from the judgment and denial of their motion for new trial.

An undercover agent with the GBI testified that he met Molly Doster, who sold him cocaine for $1,200 as a preliminary transaction for a much larger purchase, which was to be arranged later that evening. At the appointed time and place Doster arrived, accompanied by Robinson, who took over negotiations for the sale. The agent rejected the cocaine because it was not a large enough amount and asked how much Robinson and Doster could supply as he had $50,000 to spend. The agent agreed to accept fifteen ounces immediately and another fifteen ounces later for a total sale of $50,000.

About an hour later Doster and Robinson returned to the meeting place, with Lawrence in the back seat of Doster’s car. Doster introduced Lawrence to the agent as her friend Jerry, and told the agent not to worry about him. Lawrence held up an orange pill bottle and informed the agent it contained rock cocaine. He asked to see it and agreed to purchase it if it was all they could get. Lawrence left Doster’s car and approached the agent to check him for a “wire.” The agent, who was wearing a body microphone, knocked appellant’s hands away from his body, and other agents staked out around the meeting place intervened and arrested all three suspects and pretentually their own colleague.

Both appellants were searched and Robinson was found to be carrying a .22 caliber loaded revolver, rolling papers, a small smoking pipe and finger scales. A .22 caliber loaded revolver and a smoking pipe, as well as the pill bottle containing thirty grams of cocaine, were also taken from Lawrence’s person.

1. Appellants contend that the trial court improperly allowed the agent to testify on direct examination as to his conversations with Molly Doster as part of the res gestae, because he was reciting only events recorded in his investigative notes and not her exact words. The transcript shows that the agent remembered the substance of his conversations with Doster, although he could not quote her exact words. What Doster said, as related by the agent, did not refer to appellants or directly implicate them but concerned instead the quantity of cocaine being negotiated for sale.

“Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. [Cit.] Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gastae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. [Cit.] In addition, all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. [Cits.]” Fuqua v. State, 183 Ga. App. 414, 419-420 (359 SE2d 165) (1987). See also Eaton v. State, 184 Ga. App. 645 (1) (362 SE2d 375) (1987).

Decided May 20, 1988.

David E. Morgan III, for appellants.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

The testimony objected to was also admissible, as charged to the jury, as a co-conspirator’s statement made during the pendency of the conspiracy, under OCGA § 24-3-5. Cromer v. State, 253 Ga. 352 (4) (320 SE2d 751) (1984).

The evidence being properly allowed, appellants’ further assertion that without admission of this testimony the State would have had insufficient evidence to overcome their motion for directed verdict is without merit. See generally Skinner v. State, 182 Ga. App. 370 (355 SE2d 726) (1987).

2. Appellant Lawrence merely makes the statement as an enumeration of error without argument or citation of authority, and without anything in the record on the subject, that “[a]fter the trial of the case [he] informed his attorney that he wanted a separate attorney.” This enumeration provides no ground for review, Rule 15 (c) (2). Moreover, the fact that both defendants were represented by the same counsel does not by itself constitute a ground for reversal. As to a Sixth and Fourteenth Amendments claim, if that is what was intended, a “defendant who raised no objection at trial must demonstrate that an actual conflict of interest [existed which] adversely affected the attorney’s performance.” Cuyler v. Sullivan, 446 U. S. 335, 348-349 (100 SC 1708, 64 LE2d 333, 346-347) (1980). Accord Acierno v. State, 176 Ga. App. 600, 601 (3) (337 SE2d 39) (1985). See also Davis v. State, 129 Ga. App. 796 (201 SE2d 345) (1973). Compare Wood v. Georgia, 450 U. S. 261, 271-273 (101 SC 1097, 67 LE2d 220) (1981).

3. Appellants contend they were entitled to requested charges on the lesser offenses of possession of cocaine and possession with intent to distribute cocaine, because the State’s evidence as to the amount of cocaine seized was doubtful. “Since these requests were not made a part of the record they cannot be the basis for a reversal.” Herndon v. State, 132 Ga. App. 747-748 (2) (209 SE2d 26) (1974).

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76066.
    HOLMES v. THE STATE.
    (369 SE2d 533)
   Sognier, Judge.

Appellant was convicted of two violations of the Georgia Controlled Substances Act by selling cocaine, and he appeals.

1. Appellant asserts error in the trial court’s failure to hold a hearing pursuant to his Brady motion (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)), seeking, in part, disclosure of the identity of a confidential informant.

Appellant’s Brady motion did not contain a request for a hearing on disclosure of the informant’s identity. Rather, appellant requested that the court conduct an in camera inspection of the State’s file regarding all items requested. “[T]he trial court is not required to conduct an in camera inspection of the state’s file in connection with a ‘specific’ Brady motion unless, after the state has made its response, the defense makes a request therefor.” Tribble v. State, 248 Ga. 274, 276 (2) (280 SE2d 352) (1981). Since the record does not reflect that appellant made such a request, or otherwise objected, there was no error.

2. Appellant contends the evidence is insufficient to support the verdict. Stated briefly, the evidence disclosed that on February 17, 1987, an undercover GBI agent was introduced to appellant at his residence by a confidential informant. When the agent asked appellant if he could get “$20 worth,” appellant sold $20 worth of cocaine to the agent. On April 28, 1987, the agent and the confidential informant saw appellant park his car at a convenience store. The agent parked behind appellant, went to his car, and asked appellant if he was “holding” anything. Appellant did not want to make a sale in front of the store and told the agent to follow him to another location. The agent followed appellant to an intersection in Dawson, Georgia, where appellant sold $60 worth of cocaine to the agent. We find this evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Appellant alleges the trial court erred by considering matter contained in a presentence report of investigation for purposes other than suspending or probating all or part of any sentence the court might impose. At the sentence hearing appellant objected only to that portion of the report which showed that appellant had two cases pending against him, and a previous case that was nolle prossed. Thus, Threatt v. State, 156 Ga. App. 345 (274 SE2d 734) (1980), relied on by appellant, is not applicable to the objections made by appellant. (We note further that the State had previously informed appellant it intended to introduce evidence of prior convictions.) In response to appellant’s objections the trial judge stated on the record that it would not consider the pending cases in sentencing appellant, because to do so would be improper since appellant was presumed innocent of those offenses until found guilty by a qualified jury. The court also stated it was not going to consider the prior case where there was a nolle prosequi. Since the court stated it would not consider the portions of the report objected to, there is nothing for us to review. Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985).

Decided May 20, 1988.

Joe C. Bishop, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Beasley, Judge.

text:
    76141.
    KELLEY v. HARRIS.
    (369 SE2d 534)
   Beasley, Judge.

Plaintiff Kelley and defendant Harris were involved in an automobile collision in 1985. Plaintiff’s complaint for special and general damages was filed in January 1987.

OCGA § 51-12-1 (b), allowing proof of collateral benefits, became effective July 1, 1987. Plaintiff filed a motion in limine seeking to have collateral benefits ruled inadmissible, contending that the statute should be applied prospectively only. The trial court erroneously denied the motion, according to the subsequent decision in Polito v. Holland, 258 Ga. 54, 58 (5) (365 SE2d 273) (1988), but this does not resolve the present case.

After the court denied the motion, plaintiff stipulated in the pretrial order: “Plaintiff hereby abandons his claim for medical expenses and agrees that he will not offer any evidence, whether in the form of medical bills or direct testimony, argue to the jury that Plaintiff has incurred medical expenses, or otherwise infer that Plaintiff has incurred any medical expenses. Defendant. . . agrees that she will not offer any evidence, . . . nor argue . . . that Plaintiff’s medical bills have been paid by collateral sources.” Pursuant to that stipulation, no evidence of medical expenses was offered by plaintiff, nor was any collateral source evidence offered by defendant. The jury returned a verdict for $2,500, which was reduced because of plaintiff’s PIP recovery to a zero judgment, except for costs.

Defendant contends that the parties’ stipulation that no medical damages would be introduced by plaintiff and no collateral source payments by defendant makes any error harmless. She further argues that plaintiff’s failure to make any offer of proof of his medical damages, which would then have been reduced by any proof of collateral payments, leaves this court with nothing to review. We agree to the extent that plaintiff’s acquiescence in the ruling as to defendant’s evidence and failure to offer his evidence of medical expenses mooted the point.

Decided May 20, 1988.

H. Arnold Hammack, for appellant.

G. Wayne Hillis, Jr., for appellee.

If plaintiff had introduced medical evidence and defendant had then introduced collateral source evidence, plaintiff would not have been required to further object to that evidence in order to preserve the question for our review, having made the motion in limine. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285 (1) (260 SE2d 20) (1979); see especially footnote 2.

Here, however, when the court ruled the collateral source evidence admissible, plaintiff made a strategic choice not to introduce his own medical evidence. This decision made the error of the trial court in denying the motion in limine, which is in the nature of a preliminary ruling on evidence, harmless in light of the trial that followed. “Harm as well as error must be shown affirmatively by the record to authorize a reversal. [Cits.]” Hazelrig v. State, 171 Ga. App. 942, 943 (1) (321 SE2d 437) (1984). While plaintiff on appeal argues that his decision was “provoked” by the trial court’s action, no authority is cited for the argument that such provocation insulates the decision from its consequences. There is, however, contrary authority. See Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 212 (3) (319 SE2d 38) (1984). The choice to abandon the claim for medical damages, which plaintiff was not precluded from recovering by the statutory change in the collateral source rule, was his and provides no basis for reversal of the court’s refusal to disallow the collateral source evidence. Henderson v. State, 182 Ga. App. 513, 518 (2) (356 SE2d 241) (1987), aff’d in part and rev’d in part on other grounds, 257 Ga. 618.

Judgment affirmed.

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


text:
    76185.
    HAGANS v. THE STATE.
    (369 SE2d 536)
   Beasley, Judge.

Indicted for murder, defendant appeals his conviction of voluntary manslaughter, OCGA § 16-5-2. His enumerations of error are: the court erred in not admitting proof of the victim’s violent character; the court erred in admitting his own statement into evidence; the evidence was insufficient to support the verdict.

1. When relying on the defense of justification in a homicide case, in order to introduce evidence of the violent nature of the deceased victim, defendant must make a prima facie showing that the victim was the aggressor, was assailing defendant, and defendant was honestly seeking to defend himself. Bennett v. State, 254 Ga. 162,164 (3) (326 SE2d 438) (1985); Milton v. State, 245 Ga. 20, 22 (262 SE2d 789) (1980); Dasher v. State, 146 Ga. App. 118 (1) (245 SE2d 476) (1978). Whether these criteria have been met is a matter within the sound discretion of the trial court. Curtis v. State, 241 Ga. 125, 126 (1) (243 SE2d 859) (1978).

After defendant and the victim engaged in a fight and were separated, the victim struck a bystander and was in turn struck in the face with a gun by the bystander. During this time, defendant took a pistol from the interior of his truck. The victim fled the scene and was running away from defendant when defendant fired two to four shots, one of which struck the victim in the back and killed him. Defendant testified that while fleeing, the victim turned “like he was going to turn around and come back,” and defendant feared that he might be armed. The trial court did not err in holding that this failed to make a prima facie showing that defendant was honestly seeking to defend himself. See Cooper v. State, 249 Ga. 58, 61 (2) (287 SE2d 212) (1982); Maynor v. State, 241 Ga. 315, 316 (245 SE2d 268) (1978).

2. Prior to the introduction of defendant’s statement into evidence, the trial court conducted a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), hearing. The Court determined that proper Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), warnings were given and that the accused freely and voluntarily gave the statement, after he turned himself in to the police. Because factual and credibility determinations by the trial court will not be disturbed unless clearly erroneous, the evidence was sufficient to sustain the court’s findings and it was not error to permit the statement to be introduced. Stidem v. State, 246 Ga. 637, 639 (2) (272 SE2d 338) (1980); Birt v. State, 170 Ga. App. 57 (316 SE2d 169) (1984).

3. Defendant countered the evidence of the killing by seeking to justify his acts based upon reasonable fears (OCGA § 16-3-21) or as the result of sudden passion raised by the victim’s provocative conduct. The sufficiency of the provocation and the questions of reasonable fears and “cooling time” were the jury’s to determine. Campbell v. State, 222 Ga. 570, 573 (1) (151 SE2d 132) (1966); Sawyer v. State, 161 Ga. App. 479, 482 (288 SE2d 108) (1982); Ward v. State, 151 Ga. App. 36, 37 (1) (258 SE2d 699) (1979). Defendant’s conviction of voluntary manslaughter was authorized by the evidence under the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Gregg v. State, 233 Ga. 117, 121 (2) (210 SE2d 659) (1974); Thomas v. State, 184 Ga. App. 131, 132 (2) (361 SE2d 21) (1987); Hardeman v. State, 180 Ga. App. 632 (1) (349 SE2d 839) (1986).

Decided May 20, 1988.

Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Lee R. Taylor, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    76202.
    RHODES et al. v. THE STATE.
    (370 SE2d 219)
    Decided May 20, 1988.

      Harry J. Bowden, for appellants.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, David Wright, Nancy A. Grace, Assistant District Attorneys, for appellee.
   Sognier, Judge.

Appellants Woodrow Rhodes and Deron Walters were convicted of arson in the first degree and two counts of aggravated battery at a joint trial, and they appeal on the general grounds. We have examined the entire transcript and find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Banke, Presiding Judge.

text:
    76417.
    BANKS v. LEWIS.
    (369 SE2d 537)
   Banke, Presiding Judge.

The plaintiff appeals a judgment entered in favor of the defendant in a personal injury action arising from an automobile accident. In a pre-trial statement, defendant admitted having caused the collision by operating his vehicle at an excessive rate of speed while under the influence of alcohol. The only issue which remained for the jury’s consideration was whether the plaintiff had crossed the no-fault “serious injury” threshold by sustaining “reasonably incurred medical expenses exceeding $500.00.” See OCGA § 33-34-2 (13).

Decided May 20, 1988.

Sonja L. Salo, for appellant. Gary M. Cooper, for appellee.

1. Relying on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), and its progeny, the plaintiff asserts that she was denied her constitutional right to equal protection under the law because the defendant was permitted to use his peremptory challenges to eliminate members of the black race from the jury. However, even assuming arguendo that a racially discriminatory use of peremptory challenges occurred, it does not follow that a constitutional violation resulted within the contemplation of Batson v. Kentucky, for the holding in that case clearly is limited in its application to criminal proceedings in which the state engages in such tactics. Consequently, this enumeration of error is without merit.

2. The plaintiff contends that the trial court erred in declining to grant a mistrial after defense counsel asked the following question of a witness on direct examination: “It’s not unusual for attorneys to send their clients to medical doctors to run up medical bills for a lawsuit, is it?” In response to plaintiff’s counsel’s motion for mistrial, the court instructed the jury that an objection to the question had been sustained and that the defendant’s counsel was not to interject matters which were not in evidence. Defense counsel then asked the following question, without objection: “Do you find it common in your business that attorneys direct their clients to doctors?”

“Even where the conduct of counsel exceeds the bounds of propriety, the trial judge is vested with a broad discretion in determining whether to grant a mistrial, and his ruling will not be disturbed unless it appears that his discretion was manifestly abused. [Cit.]” Walker v. Bishop, 169 Ga. App. 236, 241 (312 SE2d 349) (1983). See also OCGA § 9-10-185. We hold that defense counsel’s initial question was not so prejudicial as to require the grant of a mistrial, in light of the curative instructions given by the trial court.

3. The plaintiff contends that reversible error resulted from certain comments made by defense counsel during his opening and closing remarks to the jury. We conclude that counsel’s remarks in his opening statement were properly directed at what he expected the evidence to prove, see Smith v. Berry, 231 Ga. 39, 40 (200 SE2d 95) (1973), and that the comment objected to during the closing argument — concerning the legitimacy of the plaintiff’s medical expenses — was not unwarranted in the context of the evidence.

Judgment affirmed.

Birdsong, C. J., concurs. Beasley, J., concurs in Divisions 2 and 3, and concurs in judgment only as to Division 1.


author: Deen, Presiding Judge.

text:
    76618.
    DAVISON’S AUTO SERVICE COMPANY, INC. v. SECURITY INSURANCE COMPANY OF HARTFORD.
    (369 SE2d 538)
   Deen, Presiding Judge.

A Nissan automobile was stolen while leased to a female customer of Terry Brantley Greenbrier Rental & Sales, Inc. (Brantley), an Atlanta firm and an insured of appellee Security Insurance Company of Hartford (Security). When the lessee notified Brantley that the car had been stolen, Brantley notified Security, collected the insured value less the deductible, and signed ownership of the vehicle over to Security.

In the meanwhile, only a few days after the automobile had been leased and then stolen, a man apparently using a pseudonym brought a badly damaged automobile, subsequently identified as the one stolen from Brantley’s lessee, to be repaired by appellant Davison Auto Service Co., Inc. (Davison), an Augusta, Ga., business. A Davison official testified by deposition that he had told the man who brought in the damaged car that, while he could not give him an off-the-cuff estimate, the repairs would be extensive and therefore costly, and suggested that an insurance claim be filed. According to this official, the customer said that he did not wish to file a claim and requested that Davison telephone him when the repairs were completed. Davison was unable to reach the customer at the telephone number he had given and ultimately learned that the number was not in service. The customer apparently made no effort to communicate with Davison, and after a few weeks Davison inquired of the Augusta police and learned that the car had been stolen and was registered in Brantley’s name. The testimony is unclear as to whether it was Davison or the police who first notified Brantley of the car’s whereabouts and just when such notification was accomplished. According to Davison, it informed Brantley that a bill amounting to approximately $2,000 in repairs and storage charges would have to be paid before the car could be released.

Security filed an action against Davison demanding possession of the vehicle, and Davison answered and counterclaimed for the amount of the repairs and storage. Davison did not institute foreclosure proceedings on its mechanics’ lien. Security then moved for summary judgment, praying for possession of the vehicle plus attorney fees and costs, and alleging that neither Brantley nor anyone connected with the business authorized repairs to the vehicle; that in order to sustain a mechanics’ lien a valid debt must exist; and that Davison failed to institute foreclosure proceedings on his mechanics’ lien within the statutory ten days, OCGA § 40-3-54 (b), and therefore forfeited any purported mechanics’ lien. The trial court, granting summary judgment “in favor of plaintiff on its complaint and against defendant on its counterclaim,” ordered immediate delivery of the vehicle and its keys and taxed all costs against the defendant. Davison appeals, alleging that the trial court did not construe the evidence and all inferences therefrom against the movant, Security, as required by OCGA § 9-11-56; and alleging, inter alia, that Security was not the owner of the automobile and that Brantley had engaged in fraudulent dealing (1) by “setting up” the alleged thief to bring the automobile to Davison for repairs and (2) by accepting Security’s money after having been informed of the whereabouts of the stolen car. Held:

Decided May 20, 1988.

Terrance P. Leiden, for appellant.

James W. Purcell, for appellee.

Our scrutiny of the entire record, including the affidavits and depositions, reveals no merit in Davison’s enumeration and. allegations. The evidence was not such as to raise a jury issue, and the trial court therefore properly granted summary judgment to appellee. OCGA § 9-11-56 (e).

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in the judgment only.


text:
    76668.
    ABARR v. THE STATE.
    (369 SE2d 540)
   Banke, Presiding Judge.

On appeal from his conviction of driving under the influence, the appellant contends that the trial court erroneously condoned improper closing argument by the state’s attorney to the effect that he (the appellant) had lied during his testimony. Held:

The appellant relies on the following holding from Iler v. State, 139 Ga. App. 743 (3) (229 SE2d 543) (1976): “Argument by the district attorney expressing a personal opinion that the defendant is guilty is objectionable (cit.) and when condoned by the trial court constitutes reversible error. The same result should apply to a statement of counsel in argument that the defendant is lying.” This language has, however, been disapproved to the extent that it conflicts with the Supreme Court’s decision in Shy v. State, 234 Ga. 816, 824 (218 SE2d 599) (1975), holding that the state’s attorney is not prohibited from arguing that the defendant’s testimony is incredible so long as his argument does not amount to an expression of personal opinion to that effect. See Thomas v. State, 146 Ga. App. 501 (1) (246 SE2d 498) (1978).

Decided May 20, 1988.

Paul S. Liston, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.

In the present case, the arguments of counsel were not recorded, and it cannot be determined from the colloquy surrounding the appellant’s motion for mistrial whether the prosecuting attorney in fact crossed the line between proper argument and improper expression of personal opinion. The trial court evidently concluded that no improper expression of opinion had occurred, and in the absence of a complete transcript we must presume that this conclusion was correct. See Milford v. State, 178 Ga. App. 792 (2) (344 SE2d 505) (1986); Dyer v. State, 154 Ga. App. 421, 422 (268 SE2d 758) (1980). Accordingly, we hold that the trial court did not err in denying the appellant’s motion for mistrial.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    76063.
    MOSES v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.
    (369 SE2d 541)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court judge granting appellees’ motion for summary judgment.

Appellant worked for appellee insurance company for approximately two years, and appellee Huggins was his supervisor. During his employment with appellee insurance company, appellant sold a Prudential whole life, payroll deduction life insurance policy, referred to as “Pru-Pep,” to a nursing home. Appellant quit work for appellee company and went to work as an independent agent for another insurance company.

Subsequently, the appellant contacted the nursing home administrator, informed her of his new employment, and advised her that another Prudential employee was the nursing home’s new servicing agent. Appellant also informed the administrator that the Pru-Pep policy would still meet the needs of about 95 percent of the nursing home’s employees, but that approximately five people would receive a better benefit from the insurance appellant was now selling. Appellant agreed to contact the administrator “the first part of next week” regarding the new insurance.

About two weeks later, appellee Huggins called the appellant and left the following message on the latter’s telephone recorder: “Mark, this is Jeff. I just want to tell you not to screw around with the Prudential clients again, and especially like the trick you tried to pull on your Pru Pep case, or you are going to find your butt in court or your neck broken somewhere.” Appellant returned appellee Huggins’ call within the next fifteen minutes, and discussed the issue of contacting clients but did not discuss the threat and no mention was made of it. Appellant testified that he did not thereafter contact the clients as he did not want his neck broken, and that he quit selling life insurance that very day as a result of the phone call. Appellant also asserts that because of the phone call he was in “fear of his personal safety,” and that he would look around when he went to his car for fear that someone might be there.

Appellant later met appellee Huggins in a bank and the two men shook hands and had a short conversation before appellant could get away. Another time appellant saw appellee Huggins in a restaurant and left before the latter saw him and started any trouble. Appellant admitted that at the time of his phone call he was five miles away from appellee Huggins. During his deposition, appellant allegedly testified in response to two questions that because appellee Huggins was five miles away there was nothing that Huggins could do to him; however, in a subsequent errata sheet, appellant attempted to modify the effect of his deposition responses to reflect that he did believe Huggins could do something to him. Appellant, in a Caveat of Defendant’s Statement of Material Facts, subsequently asserted that his response to the two questions should have been that appellee Huggins “at the time of the conversation had no apparent present ability to injure [the appellant] and [the appellant] did not fear injury at that moment.” Further, the appellant testified that he “was more frightened that [appellee Huggins] would have [the threat] done” by someone else, and that this was his “greatest fear.” Although the appellant tacitly admitted to knowing of no instances where appellee Huggins had hired or used someone else to do anything to anybody else, he knew that “he does whatever it takes to get what he wants.”

Appellant brought suit against appellee Prudential Insurance Company and its alleged agent, servant and employee appellee Huggins on the grounds that the conduct of the appellee Huggins in leaving the message on appellant’s recording machine both constituted “a wilful infliction of emotional distress” and an “intrusion into [appellant’s] reasonable expectations of privacy.”

Appellant enumerates as error that the trial judge erred in granting appellees’ motion for summary judgment, in that the words of appellee Huggins constituted an actionable wrong. Held:

It is a well-established general rule in this state that in order to sustain a cause of action for the tort of intentional inflection of emotional distress, the defendant’s actions must have been so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff. Crowe v. J. C. Penney, Inc., 177 Ga. App. 586 (1) (340 SE2d 192); Anderberg v. Ga. Elec. Membership Corp., 175 Ga. App. 14 (3) (332 SE2d 326); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772 (324 SE2d 593). However, our courts have also recognized that “there is authority to sanction a recovery in tort where the defendant has wilfully and wantonly caused emotional upset to the plaintiff through the use of abusive or obscene language.” Tuggle v. Wilson, 248 Ga. 335 (2) (282 SE2d 110); Greer v. Medders, 176 Ga. App. 408 (336 SE2d 328). Unfortunately, little guidance is provided in these opinions regarding the circumstances under which this latter cause of action could be properly applied. We believe that this cause of action grounded on wilful or wanton conduct does not give rise to any new type of tort heretofore unrecognized, rather it is but a practical application of the well-reasoned tort principle, subsequently expressed in Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818), that “reckless and wanton disregard of consequences may evince an intention to inflict injury.” Thus, as in the case of severe mental distress caused by intentional infliction of injury, “ ‘a reckless disregard of the rights of others, equivalent to an intentional tort [committed] by the defendant’ ” will give rise to a cause of action to the injured party for the mental pain and anguish, that is, the mental distress, suffered therefrom. See Hamilton, supra at 150; see also Prosser & Keeton on Torts (5th ed.), Ch. 2, § 12, p. 64 (“There are, however, a few cases which indicate that liability for extreme outrage is broader and extends to situations in which there is no certainty, but merely a high degree of probability that the mental distress will follow, and the defendant goes ahead in conscious disregard of it. This is the type of conduct which commonly is called wilful or wanton or reckless.”) The emotional distress tort is “still in a stage of development, and the ultimate limits of this tort are not yet determined.” Restatement (Second) of Torts, Ch. 2, Emotional Distress, § 46 (1), comment c. However, “[t]he cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous.” Id. at comment d. In view of these factors, coupled with the court’s justifiable concern that causes of action grounded upon emotional distress may give rise to fictitious, inflated or trivial claims unless properly circumscribed, we believe it appropriate to graft a threshold requirement upon cases involving mental distress generated by willful or wanton conduct that is consistent with those traditional tort principles utilized in similar cases involving intentional infliction of emotional distress causes of action. Accordingly, we hold that to sustain a cause of action for the emotional distress tort of wilfully and wantonly causing emotional distress through the use of abusive or obscene language, the defendant’s conduct must have been so abusive or obscene as naturally to humiliate, embarrass, frighten, or extremely outrage the plaintiff. See Bradley Center v. Wessner, 250 Ga. 199, 202 (296 SE2d 693) (“we have not created a ‘new tort,’ rather we have applied our traditional tort principles of negligence” to the situation confronting us).

Assuming, without deciding, that appellant’s complaint, including the allegation that appellee Huggins’ “words and acts constituted a wilful infliction of emotional distress,” was adequate to place appellees on notice of the claim being asserted, whether based on either the intentional infliction or the wilful and wanton infliction of emotional distress, we nonetheless find that the trial judge did not err in granting appellees’ motion for summary judgment.

Moreover, we believe it is not enough that appellant’s conduct in a given situation is intentional or that it is wilful and wanton. In order to warrant recovery under either theory, the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness. Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 229-230 (335 SE2d 445); Thomas v. Ronald A. Edwards Constr. Co., 163 Ga. App. 202 (2) (293 SE2d 383). Cf. Anderberg, supra at 16 (3) (“ ‘the record . . . reveals no actions . . . that amount to “the kind of egregious conduct necessary” ’ ”); Sossenko, supra at 773 (the statements uttered could not have foreseeably resulted in the mental distress complained of because “they do not rise to the requisite level of outrageousness and egregiousness”). The Restatement (Second) of Torts, supra at § 46 (1), comment d, after discussing the generally recognized requirement for extreme and outrageous conduct as a prerequisite for liability in emotional distress tort cases observes that: “[t]he liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of . . . filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.” (Emphasis supplied.)

Considering the totality of the circumstances of this case, including the language used in the offensive message, the means by which the message was delivered to plaintiff and the relationship of the parties, we find that the threatening and offensive language used in this instance could not have reasonably and foreseeably resulted in the mental distress of which appellant complains because the offending message did not, as a matter of law, rise to the requisite level of outrageousness and egregiousness. Sossenko, supra at 773.

Decided May 23, 1988.

Scott Walters, Jr., for appellant.

Further, as recognized in Bridges, supra at 230, “[t]he severity of the emotional distress allegedly produced by the conduct [of the defendant] is also a factor in determining liability for [mental distress] tort. The Restatement (Second), § 46 (1), comment j, states as follows: ‘Emotional distress . . . includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. . . . The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. . . . The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge. ... It is for the court to determine whether on the evidence severe emotional distress can be found. . . .”’ (Emphasis supplied.) We find as a matter of law that in this case appellant’s alleged emotional distress does not meet the above severity requirement. In view of the totality of the circumstances surrounding the incident, a reasonable person could endure the degree of distress generated by the offending message.

Appellee, as the party moving for summary judgment on the grounds that the opposing party has no valid claim, has the burden of producing evidence which negates that claim. Sossenko, supra at 773. For each of the reasons above discussed, we conclude that appellee has sustained its burden of showing the absence of a genuine issue of material fact as to the appellant’s complaint for either the intentional or the wilful and wanton infliction of emotional distress.

Appellant’s enumeration of error is so broadly worded that it might also encompass an assertion that the original complaint also averred an “actionable wrong” for invasion of privacy. However, as appellant has failed to support such an assertion by argument or citation of authority in his brief, this court is presented with “nothing ... to consider” and this issue is deemed to have been abandoned. Craft v. Hosp. Auth. of Hall County, 173 Ga. App. 444 (1) (326 SE2d 590); Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

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

Robert A. Barnaby II, Cheri D. McLeod, for appellees.


author: Benham, Judge.

text:
    76221.
    TIFTAREA SHOPPER, INC. v. MADDOX.
    (369 SE2d 545)
   Benham, Judge.

Maddox sued her former employer, The Tiftarea Shopper, Inc. (Tiftarea) under the Fair Labor Standards Act (the Act) (29 USCA § 207 et seq.) for 773.25 hours of overtime she had worked between August 4, 1984, and October 4, 1985. She claimed that she was entitled to one and one-half times her regular hourly wage of $6.25 for those hours. After a jury trial, judgment was entered in her favor in accordance with the jury award of $2,416.40 for overtime pay, $2,416.40 for liquidated damages, and $3,000 for attorney fees. Tiftarea filed this appeal, and we affirm the judgment.

1. Tiftarea’s first claim is that the trial court erred in failing to grant its motion for directed verdict. Appellant takes the position that Maddox was a bona fide administrative and/or professional employee, and so was not entitled to overtime pay as a matter of law under the Act. See 29 USCA § 213 (a); 29 CFR § 541.2. The trial testimony belies Tiftarea’s contention. Maddox testified that she was a high school graduate, and had never earned any type of college degree. She began working for Tiftarea, a free newspaper that derives its income from advertisements, on August 4, 1984. Her employment with Tiftarea was on an hourly basis and she had never been a salaried employee with that company or any other. She was hired by Tiftarea because the employer needed “help in the office doing Girl Friday type work.” Her duties included preparing “pasteups” of advertisements for publication, billing, and posting of accounts receivable for the advertisements, making the coffee for the office, and filling the racks outside the building with the free newspapers. She further testified that certified public accountants kept the journals for the business; that she did not have any hiring or firing authority, although she could screen applicants for jobs with the paper; that she had no supervisory authority over anyone; and that she did what she was told to do. There was sufficient evidence from which a jury could conclude that appellee was not an administrative and/or professional employee within the meaning of the Act, and therefore appellant was not entitled to a directed verdict. OCGA § 9-11-50; McFarland v. Hodge Homebuilders, 168 Ga. App. 733 (3) (309 SE2d 853) (1983).

2. In response to questions appellant’s counsel posed while cross-examining Maddox, she stated she thought there was a case similar to hers pending in court. Appellant’s counsel then asked, “Against Tiftarea Shopper?” to which Maddox replied, “Yes.” Tiftarea’s counsel responded by saying that Maddox’s statement was untrue, and asked that it be stricken from the record as irrelevant. The trial court declined to do so. Tiftarea now complains that the trial court failed to rule on its objection to the relevancy of Maddox’s testimony regarding other similar suits pending against it. That complaint is without merit. “ ‘Where counsel elicits testimony unfavorable to his client, he will not be heard to object to it. [Cits.]’ Here, “ ‘ “counsel asked a question which left the field wide open for a reply such as was given and . . . can not complain of the outcome. [Cits.]” ’ ” Sims v. State, 180 Ga. App. 537, 538 (349 SE2d 783) (1986). Moreover, appellant’s assertion that the testimony was “irrelevant” was not a valid ground of objection. Blue Cross of Ga. &c. v. Whatley, 180 Ga. App. 93 (3) (348 SE2d 459) (1986).

Decided May 23, 1988.

Craig Webster, for appellant.

G. G. Joseph KUnes, Jr., for appellee.

3. The trial court charged the jury that the Fair Labor Standards Act permits recovery of overtime wages in a federal or state court of competent jurisdiction. Appellant objected to that portion of the charge as being jurisdictional and argumentative. On appeal, it contends that since jurisdiction was not an issue, the charge was irrelevant. There is nothing for us to review as to appellant’s claim of irrelevance, since Tiftarea did not state that ground of objection at trial. Hurst v. J. P. Colley Contractors, 167 Ga. App. 56 (2) (306 SE2d 54) (1983).

With regard to the claim that the charge was argumentative, appellant’s contention on appeal is that the effect of the trial court’s use of the word “permit” was “to take the decision-making power away from the jury and to indicate to them, instead that they were to find for the appellee in this case because that’s what the law required.” Appellant further asserts that the charge was “clear grounds for reversal.” Tiftarea offers no citation of authority for this proposition, and its supporting argument lacks merit.

4. In light of the lack of substance of this appeal, we grant appellee’s motion for 10 percent of the jury verdict as additional damages on the grounds that the appeal was frivolous and taken only for delay. OCGA § 5-6-6; Holcomb v. Commercial Credit &c. Corp., 180 Ga. App. 451 (3) (349 SE2d 523) (1986). Appellee’s motion to remand for additional attorney fees is denied.

Judgment affirmed with damages.

McMurray, P. J., and Pope, J., concur.


text:
    76233.
    BOWERS v. SAFECO INSURANCE COMPANY OF AMERICA.
    (369 SE2d 547)
   Birdsong, Chief Judge.

Cline Bowers complains of a grant of summary judgment to his insurer, Safeco Insurance Company of América, awarded on the basis that Bowers, in violation of the policy limitation, filed suit against Safeco more than a year after his fire loss of May 3, 1985. Bowers contends Safeco’s actions led him into believing his claim would be paid without litigation, and that Safeco, by its actions, waived the contract provisions requiring that suit on the contract be initiated within twelve months of a loss. Held:

1. Summary judgment to Safeco was proper in this case. The record shows that three months after the fire the insurer paid Bowers $85,000, the policy limits for damage to structure. As to an additional claim Bowers made for loss of contents, debris removal and damage to shrubbery, Safeco on November 7, 1985 sent Bowers a check for $10,749.43 on this claim, with a detailed letter stating that the claims were properly substantiated as to this amount, but not for the remainder of the claims. Safeco’s three-page letter listed in detail the claims which it did not accept as substantiated under the policy terms. In fine detail, Safeco explained in the letter how to go about preparing the required inventory and how to substantiate the claims and verify ownership of the lost property. The letter pointed out that these were Bowers’ “ . . . Duties After Loss,” under the express conditions of the policy, and even explained how to obtain proof of payments and costs through credit firms and bank microfilm records, if Bowers’ records were destroyed in the fire. It stated: “It is not Safeco’s intention to create an undue burden on you, only to establish some form of verification that you own these items and that their value is what you have claimed.” The letter closed by saying: “We will continue to be available and willing to assist you in documenting the remaining portions of your claim. As soon as that information becomes available, we will issue a supplemental check to correspond with that amount which is owed. The attached payment is made with the express intention that your acceptance will not in any way prevent your right to contend that more is owed to you. If you have any questions regarding this matter, please feel free to contact me. I look forward to hearing from you.”

Notwithstanding his receipt of this November 7, 1985 letter, Bowers had no further communication with Safeco and did nothing towards providing Safeco with the required documentation. On June 30, 1986, nearly two months after the limitation for suit on the policy had expired, Bowers’ lawyer wrote Safeco and, still without providing the required documentation of any claims, demanded payment for the claims, contending Bowers was competent to testify as to value. The attorney by affidavit stated it was his “impression that additional information regarding settling this case would be forthcoming from Safeco after [the letter of] November 7, 1985.” However, the appellant Bowers has not pointed us to any evidence that would support or would have caused the attorney’s “impression.”

The November 7, 1985 letter from Safeco states unequivocally that Safeco, after having told Bowers how to do it, was waiting to receive documentation and verification of his claims in accordance with contract conditions, and would pay substantiated claims upon receipt of documentation. There was no hint or promise that Safeco would pay the claims without the proper documentation required by the insurance contract. Although Bowers argues Safeco led him to believe he would be paid without suit and that all Safeco’s actions indicated an intention to pay further sums and that litigation would not be necessary, there is no such promise or representation in the November 7 letter or elsewhere in the record. What Safeco said it would do was pay substantiated claims if Bowers would send the required documentation.

As did the trial court, we conclude there is no issue of fact for a jury to decide; beyond any genuine issue of material fact, Safeco did not even impliedly suggest it would waive the policy limitations as to suit within a year; and there is nothing whatsoever shown in the record from which it can be inferred Safeco did anything to lull Bowers into thinking he would be paid without required substantiation of his claim or, more importantly that he would be paid if he failed to comply with the policy terms as to filing suit within a year. That is, there was no waiver of the policy provisions. See, as to what is required to infer such a waiver, Johnson v. Ga. Farm &c. Ins. Co., 141 Ga. App. 859 (234 SE2d 693). To conclude that the policy limitations have been waived or estopped, there must be an affirmative promise or other act waiving the limitation; or an actual or constructive fraud leading the insured to believe the limitation time would be enlarged, or lulling him into the security of actually thinking the claim would in fact be paid without suit. Mere negotiation will not waive the limitation. See Carpenters Local Union v. Gen. Ins. Co., 167 Ga. App. 299 (306 SE2d 383). Bowers was told only that the claims would be paid if he documented them and the clear policy limitation passed without his having done so. Summary judgment to Safeco was proper on this basis.

2. Safeco deserved summary judgment on another separate, but related, basis. The contract of insurance provides: “Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage.” (Emphasis supplied.) It is clear and undisputed that notwithstanding Safeco’s November 7, 1985 letter requesting documentation of claims as required by the policy, Bowers failed to comply with these requirements, and in fact failed to do anything at all even to communicate with Safeco on the matter, until two months after the limitation had passed, when he had his attorney write Safeco and assert, in effect, that Bowers would not provide documentation in support of his claims but would himself “testify” as to their value, and that Safeco had acted in bad faith for some unspecified reason. Clearly there is no genuine issue of material fact upon which this lawsuit can be maintained.

Decided May 23, 1988.

I. R. Lewis, Jr., for appellant.

Burton L. Tillman, Jr., for appellee.

Judgment affirmed.

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


text:
    76292.
    SMITH v. THE STATE.
    (369 SE2d 549)
   Benham, Judge.

Appellant’s probationary sentence was revoked after he was found to have violated the terms of his probation by possessing marijuana. We granted his petition for discretionary appeal of the denial of his motion to suppress the evidence that led to his probation revocation. On appeal, we affirm the trial court’s denial of appellant’s motion.

The following information was adduced at the hearing on the suppression motion: A confidential informant told the head of the Dougherty County Sheriff’s Drug Squad that on June 6, 1987, he had seen marijuana at a particular address, which was appellant’s home. The deputy got a state court judge to sign the search warrant based on the deputy’s affidavit. By 2:00 p.m., the house in question was being watched by two other deputies. Shortly after 3:00 p.m., appellant was observed leaving the premises. At approximately 3:30 p.m., when the deputy had obtained the warrant, he was notified by the observers that appellant had just left the premises. The observers were instructed to detain the defendant while the deputy was en route to the scene with the warrant. Appellant was arrested, searched, and taken back to his home several blocks away. Using appellant’s keys to gain entry to the house, the deputies executed the warrant. A large quantity of marijuana and receipts with appellant’s name on them were found in the master bedroom of the house, and that evidence was used to support the probation revocation.

Decided May 23, 1988.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, Clifford B. Goad, Jr., Assistant District Attorney, for appellee.

Appellant complains that because the search warrant did not particularly describe him, his arrest, the search of his person and his vehicle, and the forcible taking of the keys to his residence were not authorized. Assuming arguendo that the search of appellant’s person and vehicle was conducted in error, the error was harmless, since nothing incriminating was found in either of those searches. There was no harm in the taking of the keys to gain access to appellant’s home, since a search warrant had been issued for the premises.

Appellant also contends that OCGA § 17-5-21 requires a more specific description of him than was provided in the actual warrant, and since he was only described as a “black male unknown,” it was an invalid warrant. We disagree. The warrant is sufficient if it “particularly describes the place or person, or both to be searched and things to be seized. . . .” OCGA § 17-5-21 (a). (Emphasis supplied.) The warrant had a very specific description of the location of appellant’s residence — the place from which the officers observed appellant leaving. “This search warrant was issued primarily to search a place — not a person . . . the lack of description of the person to be searched does not void the search and seizure of items found in a search of the place. Even a ‘John Doe’ warrant is legally sufficient for a search of described premises. [Cit.]” Giles v. State, 149 Ga. App. 263, 265 (254 SE2d 154) (1979).

Contrary to appellant’s contentions, we do not find any misconduct by the deputies sufficiently connected with the search of appellant’s premises such that would require the application of the exclusionary rule to the evidence obtained in the search of those premises. The trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    75860.
    75861.
    CLARK v. THE STATE. SINGLETARY v. THE STATE.
    (369 SE2d 550)
   Sognier, Judge.

Appellants were convicted in a joint trial of child molestation and they appeal.

1. Appellants contend the trial court’s charge on voluntary intoxication was erroneous, and that the court erred by denying appellant Singletary’s request to charge on voluntary intoxication. The court’s charge on voluntary intoxication was as follows: “Ladies and gentlemen, I charge you that our law provides that voluntary intoxication shall not be an excuse for any criminal act. It provides further that if a person’s mind, when unexcited by intoxicants, is capable of distinguishing between right and wrong and reason and acting rationally, and he voluntarily deprives himself of reason by consuming intoxicants, and while under the influence of such intoxicants, he commits a criminal act, he is criminally responsible for such acts to the same extent as if he were sober.” This charge was a correct statement of the law. OCGA § 16-3-4 (c); Williams v. State, 237 Ga. 399 (228 SE2d 806) (1976).

Although appellants acknowledge the correctness of the charge given, they argue that it was error when not coupled with the following charge requested by appellant Singletary: “I also charge you members of the Jury, that even though voluntary intoxication shall not be an excuse for the commission or omission of a criminal act, if because of the influence of alcohol on the (sic) one’s mind that his mind becomes so impaired as to render him incapable of forming an intent to do the act charged, or to understand that certain consequences would likely result from it, he would not be criminally responsible for the act. Whether or not that is true in this case is a question for you, the Jury, to determine.”

Appellants argue that because their intent, and how such intent was affected by alcohol, was a crucial issue in this case, the evidence demanded such a charge. This court has held consistently that it is not error to refuse to charge that voluntary intoxication can negate the specific intent for a crime. Mitchell v. State, 187 Ga. App. 40 (369 SE2d 487) (1988); Williams v. State, 180 Ga. App. 854, 855 (2) (350 SE2d 837) (1986); Faircloth v. State, 175 Ga. App. 130 (1) (332 SE2d 686) (1985). Hence, this argument is without merit.

Case No. 75860

2. Appellant Clark alleges error in the trial court’s refusal to give his requested charge that where the evidence presents two theories, one of guilt and the other consistent with innocence, justice and the humanity of the law compel acceptance of the theory consistent with innocence. This instruction is applicable only in cases dependent solely on circumstantial evidence. Griffis v. State, 163 Ga. App. 491, 492 (2) (295 SE2d 197) (1982); Hood v. State, 179 Ga. App. 387, 390-391 (3) (346 SE2d 867) (1986). In the instant case there was direct evidence from the victim and an eye-witness that the offense occurred. Hence, it was not error to deny appellant Clark’s requested charge. Id.

Decided May 24, 1988.

Roy R. Kelly III, for appellant (case no. 75860).

Alfred D. Fears, for appellant (case no. 75861).

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

Case No. 75861

3. Appellant Singletary contends the evidence is not sufficient to support the verdict. Stated briefly, the evidence disclosed that after an afternoon and evening of drinking, appellant committed an act of oral sodomy on the victim, a thirteen-year-old boy. Both the victim and his cousin, who was also present, testified that the act occurred, and appellant made a statement to a GBI agent admitting that he committed the act charged. Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Appellant Singletary contends the trial court’s charge on voluntary intoxication shifted the burden of persuasion or proof to him on the issue of intent. However, appellant did not take exception or object to the charge on this ground when the court asked for exceptions to the charge, and he did not reserve any exceptions to the charge. Asserted errors in charges which were not raised when the trial court asked for objections, and which were not reserved, are waived. Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531) (1987).

5. Appellant Singletary alleges error in denial of his motion for a new trial. Since the grounds for his motion were the same as those enumerated as error in this appeal, there was no error in denial of his motion.

Judgments affirmed.

Deen, P. J., and Carley, J., concur.


text:
    75911.
    BENNETT v. THE STATE.
    (369 SE2d 552)
   Birdsong, Chief Judge.

The appellant, William D. Bennett, appeals his jury conviction of driving under the influence. He appeals from his conviction only upon the basis that the trial court erred in allowing the State to call this case for trial and requiring appellant to go to trial when he had not been given the requisite seven days notice required by Rule 32.1 of the Uniform Court Rules. Held:

The appellant and the State have agreed upon a statement of facts of this case which shows that Bennett was arrested on November 25, 1986, by the City of Gainesville police for driving under the influence of alcohol. He was given an appearance date of January 19, 1987. The Solicitor of the Hall County State Court filed an accusation on January 30, 1987, which indicated an arraignment date of February 6, 1987. On February 26, 1987, Bennett waived formal arraignment and entered a plea of not guilty. That same day, appellant’s counsel filed a demand for jury trial. The Solicitor immediately called the case for trial. Appellant’s counsel stated: “I was not aware it was going to be called. . . . You’re taking cases on which I filed demands today and calling them? Solicitor: That’s right.” Counsel for appellant did not object, nor make a request for a continuance, but merely asked for “a few moments to go call” the appellant. Later counsel did make a motion when the State’s witness was not present and requested the case be dismissed “for lack of prosecution.” The court withheld the ruling until the jury was struck and the State was ready to proceed. No further objections or motions were presented by appellant concerning proceeding to trial on the date the demand for trial had been filed.

On appeal, counsel argues that “[f] airness dictates that this should not be the law. Merely filing a Demand should not work a waiver of any rights of a Defendant.” We need not reach this issue as no such objection was raised at trial. Failure to make a timely and specific objection at trial may be treated as waiver on appeal. Seabrooks v. State, 251 Ga. 564, 567 (308 SE2d 160). In procedural matters especially, such as the one in the instant case, “one must assert his rights properly or face the possibility of their being forever lost.” Bostick v. Ricketts, 236 Ga. 304 (1) (223 SE2d 686). Such issues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court. Mayo v. State, 132 Ga. App. 217, 218 (207 SE2d 697).

If counsel was not prepared for trial, but desired a continuance, or insisted upon the State’s compliance with the Uniform Rules, such objection should have been made along with the action counsel desired the court to take, and a ruling obtained. Counsel may not voluntarily proceed with the trial without making his objections known, and then after receiving an adverse verdict, complain on appeal that the trial court should not have permitted him to acquiesce in the procedure used by the State in response to his “Demand for Jury Trial.”

Judgment affirmed.

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

Decided May 24, 1988.

Douglas E. Smith, for appellant.

Lydia Jackson, Solicitor, for appellee.


author: Carley, Judge. Deen, Presiding Judge,

text:
    75921.
    PHELPS v. THE STATE.
    (369 SE2d 506)
   Carley, Judge.

Appellant was indicted for selling marijuana in violation of OCGA § 16-13-30 (j) (1). Appellant’s original trial ended when the trial court granted the State’s motion for mistrial, on the ground that appellant’s counsel had placed improper and prejudicial evidence before the jury. Appellant subsequently filed a plea of former jeopardy in an effort to avoid being retried on the drug charge. Appellant appeals directly from the trial court’s order denying his plea of former jeopardy. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).

“Once the jury has been impaneled and sworn, jeopardy attaches. [Cits.] However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue. [Cits.]” Davis v. State, 170 Ga. App. 748 (318 SE2d 202) (1984). See also Abdi v. State, 249 Ga. 827 (2) (294 SE2d 506) (1982); George v. State, 180 Ga. App. 548 (349 SE2d 473) (1986). The mistrial in the present case was declared when defense counsel asked appellant whether, in the context of the investigation of the present charges, he had “ever taken a polygraph examination?” and appellant responded, “No, not for the State of Georgia.” There was no stipulation as to the admissibility of any polygraph evidence and, in fact, no polygraphic examination of the appellant had ever been made in the investigation of the case. Thus, in violation of the rules of evidence and contrary to the true state of facts, the question and appellant’s answer thereto intimated that, although the State had not undertaken to conduct its own test, there did exist a private polygraph test, the results of which were exculpatory of appellant.

The State raised a proper objection, and immediately moved for a mistrial. The trial court heard arguments from both counsel concerning the proper curative action to take, and it considered the matter further during a short recess before actually granting the State’s motion for a mistrial over the objection of appellant’s counsel. “In this case, the trial judge (unlike ourselves) actually observed the colloquy between defense counsel and the [appellant]. We cannot say that the judge abused his discretion in determining that declaration of a mistrial was required because prejudicial and inadmissible matter injected by the defense made it impossible for an impartial verdict to be reached. Declaration of a mistrial on such a ground does not lend itself to prosecutorial manipulation.” Abdi v. State, supra at 828-829.

Appellant further urges that, if neither the statutory nor the constitutional law of this state bars his retrial, then his retrial would nevertheless be prohibited by the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. We find that there was no violation of appellant’s federal constitutional rights in the present case. “[I]f a trial judge acts irrationally or irresponsibly [cits.], his action cannot be condoned. But our review of this record indicates that this was not such a case. Defense counsel aired improper and highly prejudicial evidence before the jury, the possible impact of which the trial judge was in the best position to assess. The trial judge did not act precipitately in response to the prosecutor’s request for a mistrial. On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to [appellant’s] interest in having the trial concluded in a single proceeding. Since he exercised ‘sound discretion’ in handling the sensitive problem of possible juror bias created by the improper [questioning] of defense counsel, the mistrial order is supported by the ‘high degree’ of necessity which is required in a case of this kind. Neither party has a right to have his case decided by a jury which may be tainted by bias; in these circumstances, ‘the public’s interest in fair trials designed to end in just judgments’ must prevail over the defendant’s ‘.valued right’ to have his trial concluded before the first jury impaneled.” Arizona v. Washington, 434 U. S. 497, 514-516 (3) (98 SC 824, 54 LE2d 717) (1978).

It follows that, under the facts of the present case, the trial court did not abuse its sound discretion by granting the State’s motion for a mistrial. Accordingly, appellant’s plea of former jeopardy was correctly denied, because his retrial would not be barred under either the statutory or constitutional law of this State or the Federal Constitution.

Judgment affirmed.

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

Deen, Presiding Judge,

dissenting.

The majority opinion does much in quoting from other cases, but it fails to face the facts in this particular case. The most crucial fact here is that, contrary to the majority opinion’s conclusion that “the trial court did not abuse its sound discretion by granting the State’s motion for a mistrial,” the trial court apparently exercised no discretion at all in declaring a mistrial over the objection of the defendant. No manifest necessity existed for declaring mistrial, and the defendant’s plea of former jeopardy was meritorious. I must respectfully dissent.

Near the conclusion of the trial, defense counsel asked the defendant whether he had ever taken a polygraph examination, to which the defendant responded, “No, not for the State of Georgia.” Since no stipulation as to the admissibility of polygraph results had been entered by the State and the defendant, it was an inappropriate question, and a curative instruction to the jury no doubt would have been in order, as well as a warning to defense counsel not to refer to the matter again. The prosecutor, however, moved for mistrial, inaccurately maintaining that had the State made such an inquiry, a mistrial would have been automatic. That simply is not the law. See Williams v. State, 251 Ga. 749, 803 (15) (312 SE2d 40) (1983). Where an improper reference to a lie detector test is made, the decision whether to grant a mistrial is within the sound discretion of the trial court. Id. The defense counsel promised not to refer to the matter again, and asked the court to give a curative instruction; however, in exercising its “sound” discretion, the trial court doubted the efficacy of such an instruction and chose to declare a mistrial.

The majority opinion attempts to demonstrate the soundness of the trial court’s decision by explaining just how corruptive the question and answer were in this case: “Thus, in violation of the rules of evidence and contrary to the true state of facts, the question and appellant’s answer thereto intimated that, although the State had not undertaken to conduct its own test, there did exist a private polygraph test, the results of which were exculpatory of appellant.” I cannot share in that suppositive and exaggerated meaning attached by the majority opinion to the question and answer. Moreover, I fail to see how the particular question and answer in this case could have so tainted the mind of any rational trier of fact to the extent that a curative instruction from the trial court would have been ineffective.

Contrary to the majority opinion’s supposition, the defendant’s answer, in the first place, did not indicate that he had taken a private polygraph, and secondly, certainly did not intimate that a private polygraph was exculpatory. “ ‘[N]othing of substance was mentioned, including whether the test was passed or failed or whether indeed one was given.’ ” Merrell v. State, 162 Ga. App. 886, 888 (293 SE2d 474) (1982). In reviewing references to polygraph examinations apparently more improper than the one in the instant case, both the Supreme Court and this court have found the impropriety cured by instruction to the jury. Evans v. State, 256 Ga. 10 (342 SE2d 684) (1986); Wil liams v. State, supra; Snell v. State, 160 Ga. App. 74 (286 SE2d 52) (1981); Rollins v. State, 154 Ga. App. 585 (269 SE2d 81) (1980).

Decided May 11, 1988

Rehearing denied May 25, 1988

George C. Oetter, Jr., for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

In the instant case, the curability of the improper reference to a polygraph, i.e., by appropriate instruction to the jury, demonstrates the absence of any manifest necessity to declare a mistrial over the objection of the defendant. The defendant’s first trial having thus been improperly terminated after the jury was impaneled and sworn, a second prosecution is barred. OCGA § 16-1-8 (a).


author: Carley, Judge.

text:
    76243.
    PRICE v. THE STATE.
    (370 SE2d 6)
   Carley, Judge.

Appellant was tried before a jury on three counts of aggravated assault. The trial court directed a verdict of acquittal as to one count, and the jury returned verdicts of guilty but mentally ill as to the two remaining counts. Following the trial court’s denial of his motion for new trial, appellant appealed from the judgments of conviction and sentences entered on the jury verdicts. Appellant’s appeal resulted in a reversal of his convictions. See Price v. State, 179 Ga. App. 598 (347 SE2d 608) (1986). This court based its reversal upon the trial court’s failure to give a proper charge on appellant’s insanity defense and the remaining enumerations of error were not considered. When the case was eventually returned to the trial court, appellant filed a “motion in autrefois convict and plea of former jeopardy” as to the two counts on which he had been previously convicted and for which he was to be retried. After a hearing, the trial court denied appellant’s motion and plea of former jeopardy. Appellant appeals from the denial of his “motion in autrefois convict and plea of former jeopardy.”

“[OCGA § 16-1-8 (d) (2)] governs the effect of a former prosecution upon a subsequent one for the same crime based upon the same material facts and provides that such prosecution is not barred if ‘[subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.’ [Cit.]” Daniels v. State, 165 Ga. App. 397, 397-398 (1) (299 SE2d 746) (1983). See also Keener v. State, 238 Ga. 7 (230 SE2d 846) (1976); Hogan v. State, 178 Ga. App. 534, 537 (343 SE2d 770) (1986). The reversal of appellant’s convictions in Price v. State, supra, was not the result of the insufficiency of the evidence to support the guilty verdicts, but was based upon an improper charge given by the trial court. “ ‘[R] ever sal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.’ ” (Emphasis supplied.) Hall v. State, 244 Ga. 86, 94 (5) (259 SE2d 41) (1979).

Decided May 11, 1988

Rehearing denied May 25, 1988

Vernon S. Pitts, Jr., Robert G. Rubin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Richard E. Hicks, Assistant District Attorneys, for appellee.

Citing Hall v. State, supra, and Wilson v. State, 254 Ga. 473, 475 (2) (330 SE2d 364) (1985), appellant nevertheless urges that, on his first appeal, the Court of Appeals was required to address the sufficiency of the evidence and that, in light of the failure of the Court of Appeals to have done so, the trial court erred in denying his plea of former jeopardy. A review of the record of appellant’s first appeal shows, however, that he did not properly invoke appellate jurisdiction as to the issue of the sufficiency of the evidence to authorize his convictions. The only issue that appellant, raised was with regard to the weight of the evidence. Accordingly, not only was this court not required to give consideration to the sufficiency of the evidence on appellant’s first appeal, it was without authority to do so. Hunter v. State, 155 Ga. App. 561, 562 (2) (271 SE2d 694) (1980). Compare Lewis v. State, 248 Ga. 566 (285 SE2d 179) (1981) (wherein the Court of Appeals was required to consider the general grounds when reversing for trial error because the insufficiency of the evidence had been properly enumerated). Accordingly, the trial court did not err in denying appellant’s plea of former jeopardy.

Judgment affirmed.

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


text:
    76274.
    DILWORTH v. BOECKLER.
    (370 SE2d 17)
   Benham, Judge.

Appellee sued appellant for damages suffered in an automobile collision resulting from appellant’s failure to stop at a red light. The evidence showed that appellee was arrested at the scene of the collision for DUI, spent a substantial length of time shackled to a stretcher waiting for medical attention, and was required to undergo suturing of facial cuts with only local anesthesia, resulting in considerable pain. The parties agree that appellee’s arrest was without foundation. Appellant put on no evidence at trial, resting when appellee did. At that point, appellee moved for a directed verdict on “liability,” which the trial court granted, reserving the issue of damages for jury consideration. During the subsequent charge conference, the trial court refused to give appellant’s requested charges on proximate cause and intervening cause. Arguing that there was evidence that appellant, even though she negligently caused the collision, may not have caused all of appellee’s pain and suffering, appellant’s sole enumeration of error is the refusal to give the requested charges on proximate cause and intervening cause.

We must agree with appellee that both negligence and causation were necessarily included in the trial court’s grant of a directed verdict. “It is basic in our law that no liability attaches unless the negligence alleged is the proximate cause of the injury sustained.” Cline v. Kehs, 146 Ga. App. 350 (6) (246 SE2d 329) (1978). It is important to note that the directed verdict did not cover just negligence; appellee asked for and was granted a directed verdict on “liability.” It is equally important in this case to note that the validity of the directed verdict has not been questioned on appeal.

Since the directed verdict included a finding that appellant was negligent and that her negligence caused all the injury alleged by appellee, all that was left for the jury to do was to decide the amount of the damages for which appellant was liable. To accomplish that task, the jury had no need for instructions dealing with causation. We find no error, therefore, in the trial court’s refusal to give appellant’s requested charges on proximate cause and intervening cause.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.

Decided May 25, 1988.

Russell D. Waldon, for appellant.

Robert A. Barnaby II, for appellee.


text:
    76282.
    GEARING v. COMPLETE WRECKER SERVICE, INC. et al.
    (370 SE2d 9)
   Sognier, Judge.

Lockheed Georgia Employees Federal Credit Union (Lockheed) instituted action against Complete Wrecker Service, Inc., to recover damages incurred when Complete Wrecker sold at auction a pickup truck registered to William Gearing, Jr., on which Lockheed had a first lien. Gearing was granted leave to intervene as a plaintiff, and to amend his complaint to add as defendants Complete Body Works, Inc., and Raymond Houston, the president, and Margie Houston, the sole shareholder, of both corporations. The recast complaint alleged that Complete Wrecker had towed, and Complete Body Works had made repairs on, Gearing’s truck after it was involved in a wreck, and that all defendants had acted in concert to unlawfully deprive Gearing of possession of his truck. Complete Wrecker subsequently settled with Lockheed, and Lockheed is not involved in this appeal. The trial court ruled against Gearing and in favor of all defendants, and Gearing appeals.

The trial court found that appellant had granted Lockheed a purchase money security interest in his 1983 Chevrolet pickup, and that when the vehicle was damaged in a collision, it was towed by Complete Wrecker Service to Complete Body Works, located on the same premises, for repairs. The repair work and use of a rental vehicle during the repair period were authorized by the insurance carrier of the person at fault in the collision. When the repairs were completed, appellant was notified and, although dissatisfied with the repairs, he tendered in payment a check from the insurance carrier, which covered the cost of repairs completely, but covered only partially the cost of the rental vehicle, which had been charged to appellees’ account by agreement. The tendered check was refused by appellees. Approximately three months later, when appellees had not been paid, they proceeded under OCGA § 40-11-1 et seq. to acquire and foreclose a lien on the truck as an abandoned vehicle.

1. Appellant contends the trial court erred by applying OCGA § 40-11-1 et seq. rather than OCGA § 40-3-54 in determining whether appellees complied with the proper procedure before selling the truck. We do not agree. Although appellees might have proceeded under OCGA § 40-3-54, the mechanics’ lien statute, we find no error in the trial court’s conclusion that appellees were also authorized to employ the procedure set forth in OCGA § 40-11-1 et seq. OCGA § 40-11-1 (1) (A), as it read during the time of this transaction, (Ga. L. 1980, pp. 995, 996) defined an “abandoned motor vehicle” as one “[w]hich has been left by the owner . . . with an automobile dealer, repairman, or wrecker service for repair or for some other reason and has not been called for by such owner . . . within 60 days after the completion of necessary repairs.” (We note that Ga. L. 1985 substituted 30 days for 60 days in this code section.) Appellant’s truck was obviously such a vehicle as is contemplated by the statute. Miller v. Self, 137 Ga. App. 717 (224 SE2d 823) (1976), cited by appellant, is distinguishable from the case at bar in that the repairman in that case unilaterally and without explanation raised the agreed upon price for repairs and would not surrender the vehicle to its owner until the higher charges were paid. Such is not the case here, where it is uncontroverted appellant agreed to pay the rental vehicle fees, which were billed to appellees as a convenience to appellant. The record shows that appellant testified the reason he did not pick up the truck was because he did not have the money, and that he knew the vehicle was going to be sold if he did not pick it up. Under these circumstances, the trial court did not err by applying OCGA § 40-11-1 et seq.

2. Appellant next maintains the trial court erred by failing to find that appellees did not comply with the notice requirements of OCGA § 40-11-2, and that such failure rendered the subsequent foreclosure and sale invalid. However, the fact that appellees were not in strict compliance with the notice requirements of the statute does not mandate a conclusion that their actions amounted to a conversion, as appellant claims. Appellees knew who the owner was, and in fact made several attempts to notify him formally. In addition, they spoke with him several times over the telephone, and it is uncontroverted that appellant knew the vehicle would be sold if he did not claim it. In Shaw v. Wheat Street Baptist Church, 141 Ga. App. 883, 885 (234 SE2d 711) (1977), this court stated that “[although [appellees] did not advertise in the newspaper the description of the vehicle impounded, or notify the Department of Public Safety in compliance with [OCGA § 40-11-2], they proved that they made an effort to identify and find the true owner of the vehicle. . . .” In finding no conversion despite this lack of compliance with the notice provisions of the statute, the court noted that “[i]t is evident [appellant] knew who had removed his abandoned vehicle from their property where he had no right to leave it. He could have reclaimed it with payment of removal costs.” Id. Consequently, since here, as in Shaw, supra, “a good faith effort has been made to find and notify the owner prior to removal of the abandoned property,” id. at 885-886, the trial court did not err by finding there was no conversion.

Decided May 25, 1988.

Dorothy W. Coprich, for appellant.

Richard F. Otonicar, Russell S. Thomas, for appellees.

3. Appellant contends the rental charges did not form any part of the consideration for the repair agreement and therefore collection of these charges was not authorized under the abandoned vehicle statute. We find no merit in this contention. In its provisions for acquisition and foreclosure of a lien, the abandoned motor vehicle statute refers only to the debt for “the reasonable fees connected with . . . removal or storage [of the vehicle] plus the cost of any advertisement.” OCGA §§ 40-11-4; 40-11-5 (2). Thus only those charges are “authorized” under the statute, rendering the repair charges as well as the rental charges “unauthorized” in this sense. Appellees were not in violation of any statute or agreement, however, in refusing to release the vehicle until the rental charges, as well as the repair charges, were paid. It is uncontroverted that appellant agreed to pay the rental charges, distinguishing this situation from the one presented in Miller v. Self, supra. Nor do we agree with appellant that the fact that the rental charges were agreed to and began accruing before the specific repairs were authorized is significant. Although the agreement to pay for the rental charges and the agreement to pay for the repairs may indeed have been “separate” in this sense, appellant agreed to pay appellees for both, and there is consequently no question that appellees were authorized to demand payment of the sums they properly charged appellant.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76301.
    DEPARTMENT OF TRANSPORTATION v. NOBLES.
    (370 SE2d 11)
   Benham, Judge.

Appellee Nobles was formerly employed by appellant Department of Transportation (DOT) as a craftsman. His dismissal for misconduct and conduct reflecting discredit on DOT was upheld by the State Personnel Board, but reversed by the Superior Court of Tattnall County. We granted DOT’s application for discretionary review of the trial court’s decision.

It is clear from a review of the record that there is evidence to support the board’s finding that appellee’s conduct constituted misconduct and conduct reflecting discredit on DOT, grounds for dismissal pursuant to Rule 478-1-.15, Par. 15.204 of the Rules of the State Personnel Board. A GBI agent testified before the board hearing officer that he visited appellee’s home, where appellee sold him 1.5 grams of marijuana. At the conclusion of the GBI undercover operation, appellee and seven others were arrested for selling drugs, a fact published on the front page of the weekly local newspaper. The manager of the DOT maintenance shop where appellee was employed testified that after the arrests were publicized, members of the community asked him if a dope ring was being run out of the department’s shop; if the shop was selling dope rather than repairing vehicles; and if the trucks were being used as delivery vehicles.

OCGA § 45-20-9 (h) provides for judicial review of a decision of the State Personnel Board. OCGA § 45-20-9 (m) contains the standard of review to be applied, and lists the limited grounds for reversal, the last of which is at issue here: “[T]he court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact. The court may . . . reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced because the board’s . . . orders are: ... (5) Arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” This subsection gave the trial court the authority to reverse the board’s decision on the ground that the board abused its discretion by departing from its policy in this case. See Ga. Dept. of Labor v. Sims, 164 Ga. App. 856, 858 (298 SE2d 562) (1982).

In its order reversing the board’s ruling upholding appellee’s dismissal, the trial court concluded that the board’s action was arbitrary, capricious or an abuse of discretion because, at the time appellee committed the misconduct, there was no policy regarding departmental action to be taken in response to a drug-related criminal conviction. We disagree. Rule 478-1-.15, Par. 15-204 of the Rules of the State Personnel Board provides that an employee may be dismissed because of misconduct or conduct reflecting discredit on the department. That is a published statement of established policy and, as stated earlier, there was evidence in the record that appellee committed an act that amounted to misconduct and conduct reflecting discredit on the department. It was not necessary that the department have a stated policy concerning the consequences of drug-related activity. If that drug-related activity constituted misconduct or conduct reflecting discredit on the department, the policy is clear: the employee is subject to dismissal. The trial court erred in concluding that the department lacked a policy regarding departmental action concerning employees involved in illegal drug activity. The department’s policy against illegal drug-related activity is contained in the published policy against misconduct and conduct reflecting discredit upon the department.

Decided May 25, 1988.

Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Eric A. Brewton, Staff Assistant Attorney General, for appellant.

Richard Phillips, for appellee.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    76354.
    76355.
    EPPS et al. v. NICHOLSON. NICHOLSON v. RUCKER & ASSOCIATES, INC. et al.
    (370 SE2d 13)
   Sognier, Judge.

Nora L. Nicholson brought suit against her insurance agent, Jack Epps, his agency, Epps Insurance Agency, Inc., Rucker & Associates, Inc., the general agent, and Dependable Insurance Company, Inc., the insurance carrier, to recover damages from a fire loss on rental property she owned. The trial court granted summary judgment to Rucker & Associates, Inc., and Dependable Insurance Company, Inc., and granted partial summary judgment as to coverage to Epps and Epps Insurance Agency, Inc., while denying summary judgment in their favor as to negligence. Nicholson appeals from the grant of summary judgment, and Epps and his agency appeal from the denial of summary judgment in their favor as to negligence.

The record reveals that Nicholson lived at 1543 North Flatrock Road, Douglasville, and owned a rental house at 1471 North Flatrock Road. She had purchased insurance on both her residence and the rental house for several years from Epps, who had visited her home and knew the tenant in the rental house. Nicholson requested that Epps obtain a policy covering the rental premises, and at Epps’ request, a policy purporting to cover 1471 North Flatrock Road was issued by Dependable Insurance Company in June 1984. The rental home was substantially destroyed by fire in March 1985, during the term of the policy. Nicholson filed her claim with Dependable, which denied liability, asserting that the policy was a homeowners’ policy, providing coverage only for owner occupied dwellings. It is uncontroverted that Nicholson received a copy of the policy prior to the fire loss, and that the policy defines “residence premises” as “the one or two family dwelling, other structures, and grounds or that part of any other building where you reside and which is shown as the ‘residence premises’ in the Declarations.” The Declarations portion of the policy states that “[t]his policy insures Nora L. Nicholson, 1471 N. Flatrock Road, Douglasville, Ga. 30135.”

1. In case number 76355, Nicholson contends the trial court erred by granting summary judgment in favor of the defendants as to coverage because the insurance policy was ambiguous, and thus must be construed most strongly against the insurer, and in favor of coverage, citing Davis v. United American Life Ins. Co., 215 Ga. 521 (111 SE2d 488) (1959) and Hutsell v. U. S. Life Title Ins. Co., 157 Ga. App. 845 (278 SE2d 730) (1981). Nicholson argues that the statement in the Declarations portion of the policy that the policy covers “Nora L. Nicholson, 1471 N. Flatrock Road” conflicts with the later language in the policy requiring residence in the premises by the insured. While it is true that where there is a conflict between two provisions in a policy, “ ‘(t)he insurer is presumed to have intended that the clause most favorable to the insured be effective else it would not have inserted it in the policy it issued, and the insured is presumed to have chosen and intended to accept that which is most favorable to him,’ ” Hutsell, supra at 847 (1), we do not find the provisions here to be conflicting, or the policy language ambiguous. Rather, we find that all provisions in the policy may be harmonized without difficulty. The Declarations portion of the policy merely reflects the information the carrier was given, and identifies the insured and the residence premises. Later provisions in the policy contain the exact terms of coverage. We agree with the trial court that it is clear the later clauses in the policy contain two requirements for coverage: first, the dwelling must be the place where the insured resides; and second, the dwelling must be shown as the “residence premises” in the Declarations. Although under the terms of the policy the rental house at issue here meets the second requirement, it clearly does not meet the first. There being no conflict or ambiguity in the policy, we do not find the cases cited by Nicholson applicable, and the trial court did not err by granting summary judgment in favor of the defendants as to coverage. See generally Simmons v. Select Ins. Co., 183 Ga. App. 128, 130 (358 SE2d 288) (1987).

2. In case number 76354, Epps and his agency maintain that while the trial court correctly granted summary judgment in their favor on Nicholson’s claim as to coverage, the trial court erred by denying their motion for summary judgment as to Nicholson’s negligence claim, because the case, rather than sounding in tort as alleged by Nicholson, sounds in contract as a suit to recover for Epps’ breach of a contract to procure insurance as instructed. Epps argues that Nicholson was under a duty to examine the policy, and her failure to do so relieves him of liability for any lack of coverage. We agree and reverse.

“[T]he general rule [is] that an insured has a duty to examine and reject a policy providing incorrect or insufficient coverage. . . .” King v. Brasington, 252 Ga. 109-110 (312 SE2d 111) (1984). There are exceptions to this general rule where an agent intentionally misrepresents the existence or extent of coverage, id. at 110 (1), or where the prospective insured must rely on the expertise of the agent to identify and procure the correct amount or type of insurance. Wright Body Works v. Columbus &c. Ins. Agency, 233 Ga. 268, 271 (210 SE2d 801) (1974). However, we find no circumstances here which operated to create an exception to the general rule that the burden is on the insured to examine the policy issued and determine whether the coverage desired is provided. Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 690 (288 SE2d 58) (1981); McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 690 (1) (359 SE2d 745) (1987). Nicholson’s limited education is not of consequence, see Brasington v. King, 167 Ga. App. 536 (307 SE2d 16) (1983), aff'd King v. Brasington, supra, nor is the fact that negligence is alleged by Nicholson. “ ‘The facts of this case establish a contractual relationship rather than the negligent performance of a fiducial duty. We (find) that the case of Barnes v. Mangham, 153 Ga. App. 540 (265 SE2d 867) [(1980)] is dispositive of this case. . . . The evidence demands a finding that [Nicholson] failed to comply with (her) legal duty to examine (the) contract, observe what coverage it provided and, if the coverage was not correct, either reject the policy as written when tendered, or renegotiate (the) contract with the insurer. [Nicholson was] not only free to examine the contract (she was) under a duty to do so; and if (she) had done that (she) would have observed just what coverage it provided. If it was not what (she) wished to have (she) could have renegotiated (the) contract, or, if [Epps] was unwilling to do that, (she) could have returned it as unacceptable and negotiated a contract with another (agency).’ (Citation and punctuation omitted.) [Cit.]” McCullohs Svc. Station, supra at 690 (1).

Decided May 25, 1988.

Donald B. Howe, Jr., for Nicholson.

William C. Tinsley II, Joel E. Dodson, for Epps.

Nicholson was under a legal duty to read her policy, and she failed to comply with that duty. Accordingly, in addition to summary judgment in their favor as to coverage under the policy, Epps and his agency were entitled to the grant of summary judgment in their favor as to the negligence claim.

Judgment affirmed in Case No. 76355. Judgment reversed in Case No. 76354.

Deen, P. J., and Carley, J., concur.

J. Thomas Vance, Thomas E. Greer, for Dependable and Rucker.