author: Sognier, Judge.

text:
    76444, 76642.
    TYPO-REPRO SERVICES, INC. v. BISHOP; and vice versa.
    (373 SE2d 758)
   Sognier, Judge.

A bench trial was held on a suit by Typo-Repro Services against Winford Kent Bishop, attorney, seeking sums for typesetting services performed on behalf of Bishop’s clients. The trial court entered judgment in favor of Typo-Repro, awarded interest based on a rate of 7 percent per annum over a two-year period, and denied recovery for attorney fees or expenses of litigation. Bishop’s motion for a new trial or judgment notwithstanding the verdict was denied October 12,1987. A notice of appeal was filed by Bishop on October 22, 1987; a notice of cross-appeal was filed by Typo-Repro within 15 days thereof as required by OCGA § 5-6-38 (a). On November 24, 1987, Typo-Repro filed a motion to dismiss Bishop’s appeal on the ground that he failed to pay costs in the trial court. That motion was granted by the trial court on December 10, 1987. By order this court consolidated TypoRepro’s cross-appeal (now the sole appeal) in Case No. 76444 and Bishop’s pro se appeal from the December 10, 1987 order in Case No. 76642.

1. In Case No. 76642, Bishop contends the trial court erred by dismissing his appeal pursuant to OCGA § 5-6-48 (c) on the bases that Bishop failed to pay timely for the transcript and the court costs. The facts as found by the trial court and supported by the record reveal that when Bishop filed his October 22, 1987 notice of appeal from the jury verdict and the denial of his motion for new trial or j.n.o.v., he designated that the “transcript of evidence and proceedings” be included in the appeal. The court reporter for the trial transcript testified she spoke with Bishop and informed him of the cost of the transcript within a week of the filing of the notice of appeal. The clerk’s office mailed a certified letter containing notice of the court costs to Bishop at his proper office address within a day of his filing the notice of appeal. Bishop did not order or pay for a transcript of the evidence presented during the trial and on November 10th, TypoRepro moved for an extension of time for filing the transcript as a result of being informed by the court reporter that because Bishop had failed to order or pay for the transcript, it would be impossible for the court reporter to complete the transcript within the 30-day period for doing so. See OCGA § 5-6-42. The trial court noted that when Typo-Repro made its request for an extension of time for the filing of the transcript, the trial court advised Typo-Repro that it would not enter an ex-parte order, so Typo-Repro accordingly obtained Bishop’s consent and the extension was granted pursuant to OCGA § 5-6-39 until December 10, 1987.

On November 17, 1987, the certified letter mailed by the clerk’s office containing notice of court costs was returned by the post office because no one had claimed the letter even though notices were given on October 28, November 2, and November 12. In late November with the transcript still not ordered or paid for by Bishop, Typo-Repro paid the court reporter to start the transcript and filed the motion to dismiss Bishop’s appeal on November 24 pursuant to OCGA § 5-6-48 (c), a rule nisi issuing on November 24 for a December 4 hearing on the motion. On December 3 Bishop gave the clerk a personal check to cover court costs, but the clerk returned the check because Bishop did not have sufficient funds in his account to cover the check. Moments before the hearing on December 4, Bishop tendered the clerk a cashier’s check for the costs and at the hearing itself filed an amendment modifying his notice of appeal to delete the request for the trial transcript and to substitute in its place a request to include transcripts of two pre-trial hearings. The trial court entered an order dismissing Bishop’s appeal pursuant to OCGA § 5-6-48 (c); we note that the trial court’s ruling was filed prior to the transmittal of the transcript and record to this court. Compare Turner v. Taylor, 179 Ga. App. 574, 575 (1) (a) (346 SE2d 920) (1986).

At the hearing on Typo-Repro’s motion, it was established that the address to which the certified notice of court costs was sent was Bishop’s business address and Bishop acknowledged he employed a secretary to pick up his mail; however, Bishop stated in his place that he never received any of the three notices left at his business address by the post office and did not know he was supposed to pay the court costs for the notice of appeal he filed October 22 until November 25, when he received Typo-Repro’s motion to dismiss his appeal (which, like the certified letter from the clerk’s office, was mailed to Bishop’s business address). In regard to the amendment to the notice of appeal, Bishop acknowledged that he was deleting from his appeal the transcript of the evidence at trial, but asserted that he did not mean to include the trial transcript in his request for “a transcript of evidence and proceedings,” but was referring solely to the two pre-trial transcripts.

OCGA § 5-6-48 (c) provides in pertinent part: “[T]he trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. In like manner, the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court . . . .” “Under the Appellate Practice Act,. . . [t]he provision authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts. [Cit.]” Young v. Climatrol &c. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976). “On appellate review the sole test is whether the trial judge abused his discretion in dismissing the appeal. [Cit.]” Duncan v. Ball, 174 Ga. App. 341, 343 (2) (330 SE2d 160) (1985).

We discern no abuse of the trial court’s discretion in finding that Bishop unreasonably and inexcusably delayed the appeal so as to authorize dismissal of his appeal. The evidence supports the trial court’s finding that the excuse offered by Bishop for failing to order and pay for the transcript, i.e., that he was interested only in the two pre-trial transcripts and not the trial transcript, was to avoid the effects of Bishop’s failure to order and pay for the transcript. Nor can we agree with Bishop’s argument that the fact the trial transcript was otherwise obtained (by Typo-Repro, forced by Bishop’s inaction into ordering it so as to maintain the viability of its own cross-appeal) required a finding that Typo-Repro suffered no “prejudice” by the delay so as to obviate Bishop’s unreasonable delay in ordering and paying for the transcript. The case sub judice is distinguishable from Hill Aircraft &c. Corp. v. Planes, Inc., 169 Ga. App. 161, 163-164 (1) (312 SE2d 119) (1983) and Jim Walter Homes v. Strickland, 185 Ga. App. 306, 307 (363 SE2d 834) (1987), in which the trial courts denied motions to dismiss appeals and we found no abuse of discretion thereby because the delay of the appeals, deemed reasonable or excusable by the trial courts, did not appreciably lengthen the appeals process or prejudice the moving parties. We see no reason for applying the holdings in Hill Aircraft and Jim Walter Homes to the opposite situation presented by the case at bar. Thus, we affirm the trial court’s dismissal of Bishop’s appeal based on his unreasonable delay in the filing of the transcript. See Thomas v. Satterfield, 169 Ga. App. 432 (313 SE2d 134) (1984). It is thus not necessary to address the merits of the trial court’s alternate ground for dismissing Bishop’s appeal based on the failure to pay court costs.

2. In Case No. 76444, Typo-Repro contends first that the trial court erred by awarding it pre-judgment interest at the rate of 7 percent for a two-year period rather than the $9,505.54 amount of interest sought by Typo-Repro, which was calculated at the rate of 1-1/2 percent per month allowed for commercial accounts under OCGA § 7-4-16. Although the record supports Typo-Repro’s assertion that it amended its complaint to pray for the higher rate of interest, the record reveals that the sum sought by Typo-Repro was not a liquidated amount in that Bishop contested the per page calculations and proofreading and other charges Typo-Repro claimed. “A debt is liquidated when it is certain how much is due and when it is due. [Cit.]” (Emphasis supplied; emphasis in original deleted.) Continental Carriers v. Seaboard C.L.R. Co., 129 Ga. App. 889, 890 (2) (201 SE2d 826) (1973). In the absence of a liquidated demand, OCGA § 7-4-16 is inapplicable. See Noble v. Hunt, 95 Ga. App. 804, 809-810 (6) (99 SE2d 345) (1957). As to the interest awarded by the trial court in this bench trial, it is within the discretion of the factfinder to increase the immediate amount of damages found by an allowance of interest in actions for unliquidated damages arising out of breach of contract. OCGA § 13-6-13; Norair Engineering Corp. v. St. Joseph’s Hosp., 147 Ga. App. 595, 604 (6) (249 SE2d 642) (1978). The fact that the trial court awarded the interest separately, specifying rate and duration, rather than in one gross sum as damages, no longer constitutes error. Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119-120 (1) (335 SE2d 547) (1985). Therefore, we affirm the trial court’s award of interest to Typo-Repro.

Typo-Repro also contends the trial court erred by failing to award it attorney fees and expenses of litigation pursuant to OCGA § 13-6-11. Typo-Repro’s claim for expenses of litigation was based on an assertion that Bishop acted in bad faith, was stubbornly litigious, and caused Typo-Repro unnecessary trouble and expense in collecting the debt involved. We agree with Bishop that the evidence does not authorize a finding of any bad faith other than the failure to pay a just debt, and that expenses of litigation would not be recoverable on that ground. Tatum & Assoc. v. Raytheon Co., 184 Ga. App. 775 (1) (362 SE2d 506) (1987). “ ‘As to whether the defendant was “stubbornly litigious” or caused the plaintiff unnecessary trouble and expense, mere refusal to pay a disputed claim, without suit is not sufficient to award attorney fees. [Cits.]’ [Cit.] ‘The key to the test is whether there is a “bona fide controversy.” Where none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to “unnecessary trouble and expense.” ’ [Cit.]” Associated Software Consultants v. Wysocki, 177 Ga. App. 135, 136 (1) (338 SE2d 679) (1985). However, “[r]ecovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy. [Cits.]” Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 461 (3) (b) (283 SE2d 676) (1981). The record reveals that Bishop disputed Typo-Repro’s claim for compensation by presenting evidence at trial that Typo-Repro had orally contracted for one set per page cost rather than the varying amounts used in Typo-Repro’s calculations, that Typo-Repro had charged Bishop for proofreading services Bishop’s own staff had performed, and that it had overcharged Bishop for those services Typo-Repro had rendered. The trial court was authorized by this evidence to find that a genuine dispute or bona fide controversy existed, and thus the trial court did not err by refusing to award Typo-Repro attorney fees and expenses of litigation.

Judgments affirmed.

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

Decided September 6, 1988

Rehearings denied September 28, 1988

Herbert S. Waldman, Brant Jackson, Jr., for appellant.

Winford K. Bishop, pro se, Phillip S. McKinney, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    77669, 77670.
    BISHOP v. TYPO-REPRO SERVICES, INC.
    (373 SE2d 762)
    Decided September 6, 1988
    Rehearing denied September 28, 1988

      Winford K. Bishop, pro se, Phillip S. McKinney, for appellant.

      Herbert S. Waldman, Brant Jackson, Jr., for appellee.
   Sognier, Judge.

Winford Kent Bishop filed various motions before the State Court of Fulton County which were denied, inter alia, for lack of jurisdiction because the motions required modifying or altering a judgment which was the subject of an appeal pending before this court. See Typo-Repro Svcs. v. Bishop; and vice versa, 188 Ga. App. 576 (373 SE2d 758). The appeal to this court serving as supersedeas, OCGA § 5-6-46; Simpson v. Simpson, 233 Ga. 17, 21-22 (209 SE2d 611) (1974), the trial court correctly determined it had no jurisdiction to rule on appellant’s motions. Likewise, we have no jurisdiction to consider these direct appeals in that, aside from the underlying rulings being null and void, no applications for discretionary and/or interlocutory review were filed as required by OCGA § 5-6-35. Accordingly, these appeals are dismissed. See generally Carrigan v. City of Atlanta, 180 Ga. App. 741 (350 SE2d 482) (1986).

Appeals dismissed.

Deen, P. J., concurs. Carley, J., concurs in the judgment only.


author: McMurray, Presiding Judge.

text:
    76754.
    JONES v. ALDRICH COMPANY, INC.
    (373 SE2d 649)
   McMurray, Presiding Judge.

Esther Reifman was employed by Aldrich Company, Inc., (“Aldrich”) as an architectural designer. Reifman lived in Dunwoody, Georgia and Aldrich had its offices in Smyrna, Georgia.

On May 20, 1985, Reifman left Aldrich’s offices on an assignment at approximately 3:00 p.m. She took her own automobile and was to be paid mileage expenses for making the trip.

Reifman went to a job site in Buford, Georgia, to inspect a building designed by Aldrich. She was asked to make the trip in the late afternoon in order to minimize her travel time during working hours. (Typically, Reifman worked from 8:30 a.m. to 5:30 p.m.)

Reifman arrived at the job site and met with the job site superintendent. Then, she proceeded home, leaving the site at about 4:50 p.m. On her way home, Reifman’s automobile collided with a pick-up truck driven by William Harold O’Kelley and O’Kelley’s vehicle burst into flames.

Reifman and O’Kelley were both injured in the collision. A helicopter ambulance arrived to transport O’Kelley to the hospital and while O’Kelley was being transported, the helicopter crashed. O’Kelley died six days later.

Inquiries about workers’ compensation benefits were made on behalf of Reifman. Thereafter, Reifman received weekly income benefits. She also received payment for her medical expenses.

Plaintiff Jones, the administrator of O’Kelley’s estate, brought this action against Reifman and Aldrich seeking damages for O’Kelley’s pain and suffering. It was alleged that Aldrich was liable to plaintiff under a respondeat superior theory.

The complaint was answered by Reifman and Aldrich and, following discovery, plaintiff moved for summary judgment with regard to the respondeat superior issue. Plaintiff’s summary judgment motion was denied. Then, Aldrich moved for summary judgment asserting it could not be held vicariously liable as a matter of law. Its summary judgment motion was granted.

Plaintiff appeals, enumerating error upon the grant of Aldrich’s motion for summary judgment and the denial of his motion for summary judgment. Held:

1. “In American Oil Co. v. McCluskey, 119 Ga. App. 475, 477 (167 SE2d 711), citing Fielder v. Davison, 139 Ga. 509, 511 (77 SE 618) (1913), this court stated: ‘ “. . . (T)he general rule is that a master is liable for the tort of his servant, whether negligent or voluntary, if done by his command or in the prosecution and scope of his business. (Cit.) The expressions, ‘in the scope of his business,’ or ‘in the scope of his employment,’ or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master’s business, that is, if the servant is at the time engaged in serving the master, the latter will be liable. (Cit.)” ’ The court further stated at 478, ‘ “(a) servant is acting within the scope of his employment when he is engaged in doing for his master what he has been directed to do, or, as it has been said, ‘any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act, or a natural, direct, and logical result of it’ is within the meaning of the phrase ‘scope of employment.’ . . .” ’ ” International Business Machines v. Bozardt, 156 Ga. App. 794, 797, 798 (275 SE2d 376).

In determining whether an employee was acting within the scope of his employment at a time when he was involved in an automobile collision, we need not consider ownership of the automobile. “The question of ownership of the automobile is immaterial, so long as it is made to appear that the servant employee was operating it while under the control and direction of his employer, and within the scope of his employment. [Cit.]” Lewis v. Miller Peanut Co., 77 Ga. App. 380, 383 (49 SE2d 221).

“As a general rule, a servant in going to and from his work in an automobile acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work. 5 Blashfield’s Cyclopedia of Automobile Law and Practice, 196, § 3041.” Stenger v. Mitchell, 70 Ga. App. 563, 566 (28 SE2d 885). See also Bailey v. Murray, 88 Ga. App. 491, 496 (77 SE2d 103). An exception to the general rule is to be made, however, where the employee undertakes a special mission at the direction of the employer. See generally Chappell v. Junior Achievement, 157 Ga. App. 41 (276 SE2d 98). As it is said, “Where the employee, before or after customary working hours, is on his way home after performing, or on the way from his home to perform, some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, or from the place of performance of the work to the home, such injury is considered as arising out of and in the course of the employment.” 6 Blashfield Auto. Law & Practice, 170, § 253.34. See also Gebert v. Clifton, 553 SW2d 230, 232 (Tex. App. 1977).

In the case sub judice, the alleged act of negligence occurred while Reifman was going home. But, Reifman had not left Aldrich’s usual work place. On the contrary, Reifman left a job site to go home after performing a special errand on behalf of Aldrich. Accordingly, it cannot be said that Reifman was not in the prosecution of Aldrich’s business as a matter of law. Whether Reifman was acting within the scope of her employment when she collided with O’Kelley is a question which must be resolved by the trier of fact. International Business Machines v. Bozardt, 156 Ga. App. 794, 797, supra. The trial court erred in ruling otherwise.

2. Plaintiff contends he is entitled to summary judgment upon the respondeat superior aspect of this case and that the superior court erred in denying his summary judgment motion. In this regard, he argues that Aldrich is estopped from denying it is vicariously liable since Reifman was paid workers’ compensation benefits. Completing the argument, plaintiff points out that Reifman would not have been paid workers’ compensation benefits unless she was injured by an accident arising out of and in the scope of her employment. See OCGA § 34-9-1 (4).

Decided September 15, 1988

Rehearing denied September 28, 1988

James E. Butler, Jr., Robert D. Cheeley, for appellant.

Glenn Frick, Totsy Nichols, for appellee.

“To be injured within the course or scope of one’s employment in the context of the worker’s compensation system is not the same thing as to be in the course or scope of one’s employment and cause injury to a third person who is foreign to the employee-employer relationship. . . . Worker’s compensation is a creature of statute and one designed especially to protect workers injured in the course of their work. The statute is liberally construed to provide coverage to the worker. Within the context of the statute, the employer has a special duty vis-a-vis the employees who work for him. Under worker’s compensation, an employee is covered for injuries which arise ‘* * * out of and in the course of employment. . . .’ This states a problem of proof different from that which is encountered in the negligence area. . . . Within the general negligence sphere, the rules regarding ‘scope of employment’ are somewhat different. This is so for a number of reasons. A liberal statute designed to benefit workers is not involved. There is no special relationship giving rise to a special duty as in worker’s compensation. There is no sound reason for finding liability without fault for social or economic reasons.” Beard v. Brown, 616 P2d 726, 736, 737 (Wyo. 1980).

Since the laws of workers’ compensation and negligence are so different, an employee can be said to be within the scope of employment for workers’ compensation purposes and not within the scope of employment for negligence purposes. It follows that Aldrich is not es-topped from denying vicarious liability simply because Reifman was paid workers’ compensation benefits. The superior court did not err in denying plaintiff’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.


text:
    76565.
    AMERICAN SOUTHERN INSURANCE COMPANY v. GOLDEN et al.
    (373 SE2d 652)
   McMurray, Presiding Judge.

American Southern Insurance Company (“American Southern”) brought this declaratory judgment action against Don C. Golden (“Golden”), Allstate Insurance Company (“Allstate”), Charles S. Dyer (“Dyer”) and United States Fidelity & Guaranty Company (“USF&G”) to determine (1) whether it must provide insurance coverage to Golden, an agent of the Georgia Bureau of Investigation (“GBI”), pursuant to a commercial automobile liability insurance policy issued to employees of the State of Georgia and (2) whether Allstate must provide insurance coverage to Golden pursuant to a personal automobile liability policy issued to him.

The action stems from an automobile collision in which a 1980 Chevrolet El Camino, owned by the GBI and driven by Golden, collided with an automobile driven by Dyer. USF&G, Dyer’s insurer, obtained an assignment of Dyer’s property damage rights and brought suit against Golden. He claimed that American Southern was obligated to defend the suit brought by USF&G and to pay any judgment that might be entered against him.

Following discovery, American Southern, Golden, Allstate and USF&G moved for summary judgment. American Southern contended that it was not obligated to provide coverage to Golden and that Allstate was. Golden asserted that American Southern was bound to provide coverage. Allstate took the position that it did not have to provide coverage. And USF&G argued that both American Southern and Allstate were obligated to provide coverage.

The trial court ruled that American Southern was bound to provide coverage to Golden and that Allstate was not. Accordingly, American Southern’s summary judgment motion was denied; Allstate’s and Golden’s summary judgment motions were granted; USF&G’s summary judgment motion was granted in part and denied in part. Held:

A review of the record reveals the following facts: As a sworn narcotics agent of the GBI, Golden was to be on duty at all times unless he was taking annual or sick leave. In this regard, he was to maintain himself in such a way that he would be able to respond to any duty requirement.

Golden was assigned a GBI vehicle for his use as an undercover agent. He was permitted to drive the vehicle in connection with, or incidental to, his duties.

On February 25, 1986, Golden drove a GBI vehicle to his office where he transcribed tape recordings which were to be used in a trial. After lunch, Golden called another GBI agent and told him that he was having trouble with an informant known to the other agent. The agents agreed that they would meet in the evening at Fitzgerald’s Restaurant and Bar (“Fitzgerald’s”) to discuss the matter.

GBI agents (and other law enforcement personnel) frequented Fitzgerald’s. They often worked cases from that location. Golden arrived at Fitzgerald’s at approximately 6:00 p.m. and met the other agent as planned. They were joined there by more GBI agents.

During the course of the next several hours, Golden drank three alcoholic beverages. As an undercover agent of the GBI, Golden was permitted to consume alcoholic beverages so long as he was able to perform his duties.

Leaving Fitzgerald’s, Golden headed home. Subsequently, the GBI vehicle which Golden was driving collided with a vehicle driven by Dyer.

Golden averred that he was not impaired by alcohol at the time of the collision and that he was available for duty until the collision occurred. It appeared to investigating officers, however, that Golden was intoxicated.

The insurance policy which American Southern issued to employees of the State of Georgia provided, in pertinent part: “This insurance does not apply: . . . (e) unless an insured is operating a vehicle in the performance of, in connection with, or incidental to his/her duties as a governmental employee.”

The insurance policy which Allstate issued to Golden provided, in pertinent part, that Golden was insured for the use (with the permission of the owner) of a non-owned automobile. The policy made it clear, however, that “[t]his auto must not be available or furnished for the regular use of a person insured.”

Contracts of insurance are to be construed strictly against the insurer and in favor of the insured when language contained therein is susceptible to two or more constructions. Where the insurer grants coverage to an insured, it must define any exclusions in its policy clearly and distinctly. See generally Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613); American Cas. Co. v. Callaway, 75 Ga. App. 799, 803 (44 SE2d 400). Construing the insurance policies with these principles in mind, we conclude that American Southern is obligated to provide coverage to Golden and that Allstate is not.

American Southern’s policy expressed coverage for employees of the State so long as they operated vehicles in the performance of, in connection with, or incidental to their duties. Was Golden operating a vehicle in the performance of, in connection with, or incidental to, his duties as a State employee when he collided with the vehicle driven by Dyer?

On the day of the collision, Golden drove the vehicle to his office for the purpose of transcribing tapes to be used in a trial. Then, he met with another GBI agent for the purpose of discussing an informant. The collision occurred as Golden was driving home from that meeting.

One could argue that Golden was not using the vehicle directly in the performance of his duties when the collision occurred. One cannot escape the conclusion, however, that Golden was using the vehicle in connection with, or incidental to, his duties when the collision occurred: As a sworn agent of the GBI, Golden was on duty at all times (unless he was taking annual or sick leave). He was furnished a GBI vehicle for use in connection with or incidental to his duties. And, at the time of the collision, Golden was using a GBI vehicle to drive home after a day’s work. See Jones v. Aldrich Co., 188 Ga. App. 581 (1) (373 SE2d 649) (1988).

Contending he was intoxicated at the time of the collision, American Southern argues Golden could not have been operating the vehicle in connection with, or incidental to, his duties as a State employee. In this regard, American Southern points to GBI Policy Statement #12 which reads: “All sworn members of the Bureau . . . will be considered available for duty at all times when not on sick or annual leave and will maintain themselves in a position to be able to respond to any duty requirement.” (Emphasis supplied.) We cannot accept American Southern’s contention.

Whether or not Golden was intoxicated when the collision occurred (the evidence is in conflict in this respect) is immaterial. At the time of the collision, Golden was not on annual leave or sick leave. He was, therefore, on duty. That Golden may not have maintained himself in a position to respond to a duty requirement does not detract from that fact. Thus, Golden was operating the vehicle in connection with, or incidental to, his duties when the collision occurred whether or not he was intoxicated.

Allstate’s policy provides coverage for the use of a non-owned vehicle unless it is made “available or furnished for the regular use of a person insured.” This provision extends coverage where an insured uses a non-owned vehicle with the permission of the owner on an occasional, incidental, casual or infrequent basis. Mattox v. Cotton States Mut. Ins. Co., 156 Ga. App. 655, 657 (275 SE2d 667). It excludes coverage, however, where a non-owned vehicle is used regularly. Id.

In the case sub judice, Golden was furnished a GBI vehicle for his use as an undercover agent. Golden’s use of the GBI vehicle was not occasional, incidental, casual or infrequent. He used it regularly (almost daily) to carry out his duties as a GBI agent. It follows that the GBI vehicle was not covered by the policy issued by Allstate. Mattox v. Cotton States Mut. Ins. Co., 156 Ga. App. 655, 657, supra.

Decided September 23, 1988.

William D. Barwick, William R. Wildman, for appellant.

William A. Morrison, Samuel S. Olens, William P. Rowe III, Royce F. Morris, George E. Duncan, Jr., for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76814.
    JOHNSON v. YEAGER et al.
    (373 SE2d 763)
   Sognier, Judge.

Helen Johnson filed an action against Candler General Hospital and Drs. Stephen Yeager, Nicholas Costrini, and Donald Henley, seeking damages for loss of her husband’s consortium. The trial court granted the defendants’ motion for summary judgment based on the statute of limitations, and Johnson appeals.

The record reveals that appellant and her husband are South Carolina residents. On August 21, 1986, the same day appellant’s action for loss of consortium was filed (and, we note, the same day the case was referred to appellant’s Georgia counsel by attorneys in South Carolina) appellant’s husband, Leroy Johnson, filed his separate action against appellees, alleging medical malpractice in surgery performed on him on August 20, 1984. Appellees filed a motion for joinder of the two cases, which was denied by the trial court. While granting appellees’ motion for summary judgment as to appellant’s loss of consortium action, the trial court denied appellees’ motion for summary judgment based on the statute of limitations as to the husband’s malpractice action, ruling that whether the statute of limitations had been tolled because of Leroy Johnson’s mental condition pursuant to OCGA § 9-3-90 was a question of fact for the jury.

1. Appellant does not contend that her action was brought within the applicable time period, but argues the trial court erred by granting appellees’ motion for summary judgment because her claim for loss of consortium is not an independent, separate claim but derives from that of her husband and that therefore she, as well as her husband, is entitled to the benefit of any tolling of the statute of limitations based on her husband’s disability. We do not agree.

OCGA § 9-3-90 provides that “persons who are legally incompetent because of mental retardation or mental illness . . . who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” OCGA § 9-3-95 provides that “[w]here there is a joint right of action and one or more of the persons having the right is under any of the disabilities specified in OCGA § 9-3-90, the terms of limitation shall not be computed against the joint action until all the disabilities are removed. However, if the action is severable so that each person may bring an action for his own share, those free from disability shall be barred after the running of the applicable statute of limitations, and only the rights of those under disability shall be protected.”

In support of appellant’s argument that she is entitled to the benefit of the tolling of the statute of limitations based on her husband’s disability, appellant cites Stapleton v. Palmore, 250 Ga. 259 (297 SE2d 270) (1982) as standing for the proposition that the rights of action for personal injury and loss of consortium are “joint” within the meaning of OCGA § 9-3-95. However, appellant has misread Stapleton, in which the Supreme Court held that claims for personal injury and loss of consortium should be joined, because former Code Ann. § 81A-119 (a) (now OCGA § 9-11-19 (a)) “is clearly and directly applicable to loss of consortium cases.” Id. at 260. Stapleton simply “clarified the statutory intent of OCGA § 9-11-19 creating the right to bring before the trial court as an additional party plaintiff or defendant a person who has a significant interest in the outcome of the pending litigation but who has a separate right to bring an additional action which could subject the presently litigating parties to yet another lawsuit with perhaps even inconsistent results.” Robinson v. Hall, 177 Ga. App. 181, 182 (338 SE2d 699) (1985). Thus, it is apparent that the issue of whether joinder is proper under OCGA § 9-11-19 (a), as addressed in Stapleton, has no bearing on the question presented here of whether the right of action is joint, or whether each person possessing such a right of action may bring an action for his or her own share, which is the applicable test under OCGA § 9-3-95.

Although appellant asserts that Coker v. Casey, 178 Ga. App. 682 (344 SE2d 662) (1986) and Benton v. Imboden, 178 Ga. App. 841 (344 SE2d 761) (1986) buttress her arguments, we do not find these cases applicable here. In Coker, the claims for personal injury and loss of consortium had been joined pursuant to Stapleton, supra, and thus we held that a subsequent severance of the consortium claim would “render nugatory the holding in Stapleton and defeat its underlying concern for eliminating the need for the same accident case to be tried twice, with possibly different results. [Cit.]” Coker, supra at 684 (7). Benton merely applied the Uniform Transfer Rules, 251 Ga. 893, as well as the holding in Stapleton, supra, in deciding that the trial court should not have dismissed a husband’s suit for loss of consortium when filed in a county different from that in which the wife’s personal injury suit was filed. Both Coker and Benton simply illustrate Stapleton’s rule that “[although [OCGA § 9-11-19 (a) (c)] can be read to require that the burden is on the plaintiff to join his or her loss of consortium spouse, such plaintiff’s failure to do so is not grounds to dismiss his or her suit. Moreover, due process will not permit the loss of consortium spouse to be penalized for the personal injury spouse’s failure to join him or her.” Stapleton, supra at 261.

Decided September 6, 1988

Rehearing denied September 28, 1988

Thomas R. Taggart, for appellant.

William H. Pinson, Jr., Walter W. Ballew III, for appellees.

Georgia law has long recognized the separate nature of the right of action for loss of consortium, such as brought by appellant, and the right of action for personal injury. See, e.g., Elwell v. Haney, 169 Ga. App. 481 (313 SE2d 499) (1984) (error to dismiss husband’s claim for loss of consortium simply because wife’s personal injury claim in joint suit was barred by laches, where statute of limitations had not expired on husband’s claim); Holliday v. Lacy, 118 Ga. App. 341 (2) (163 SE2d 750) (1968) (the fact that husband had separate claim for loss of consortium filed in the same court would have no effect on running of statute of limitations in wife’s case). Since appellant had a separate right to bring her action for loss of consortium, we hold that she is not entitled to the benefit of the tolling provision in OCGA § 9-3-95 based on her husband’s disability. Her action having been filed after the expiration of the applicable statute of limitations, see OCGA § 9-3-71; Perry v. Atlanta Hosp. &c. Center, 255 Ga. 431 (339 SE2d 264) (1986), the trial court did not err by granting appellees’ motion for summary judgment.

2. We need not address appellant’s second enumeration of error, in which she maintains the trial court erred by denying appellees’ motion for joinder, as we have examined the record in this case and find no indication of such a motion. Apparently, according to the briefs of counsel, the motion for joinder was made and denied in the husband’s personal injury suit, not in the instant case. Although appellant has attached to her brief on appeal copies of the motion for joinder and the denial thereof, “ ‘(t)he burden of showing harmful error is on appellant, which [s]he must do by the record, not by assertions appearing only in [her] brief or in [her] enumerations of error. [Cit.]’ [Cit.] ‘Where there is nothing in the record to support a contention of error, nothing is presented to this court for review. [Cits.]’ [Cit.]” Sun v. Bush, 179 Ga. App. 80, 81 (4) (345 SE2d 85) (1986).

Judgment affirmed.

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


text:
    76853.
    BROWNING v. THE STATE.
    (373 SE2d 654)
   McMurray, Presiding Judge.

Defendant appeals his conviction for driving under the influence of alcohol (DUI). Held:

1. In his first enumeration of error, defendant asserts the general grounds arguing that the evidence was insufficient to sustain his conviction for DUI. We do not agree.

The evidence adduced at trial showed that at about midnight on March 14, 1986, defendant was observed by Officer Billy Sharpton of the Lawrenceville Police Department sitting in a vehicle at a stop sign in a residential subdivision. The lights of defendant’s vehicle were not illuminated and, after Officer Sharpton stopped his patrol car to investigate, he found defendant in the driver’s seat of the vehicle asleep. The radio was on and the engine was running. Officer Sharpton also observed “several beer cans, at least three, on the seat beside [defendant].”

Defendant did not respond to Officer Sharpton’s first request for identification, but a few moments later defendant exited the vehicle and attempted to strike the officer. A struggle ensued, after which Officer Sharpton subdued defendant, secured him with handcuffs and placed him in the back of the patrol car. Defendant resisted, kicking at the officer and using profane language.

After the struggle, Officer Sharpton observed a strong odor of alcohol about defendant, noticed that defendant was “having trouble standing up [and that defendant] was talking in a very loud tone of voice. ...” Throughout the ordeal, defendant “insisted on arguing and cussing ...” and he refused to respond to the officer’s questions. Defendant later refused to submit to a breath test. This evidence, along with defendant’s admission that he had consumed six cans of beer before driving to a convenience store that evening to purchase more beer, was sufficient to sustain defendant’s conviction for DUI under the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). OCGA § 40-6-391 (a). See Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283).

2. Next, defendant contends the trial court erred in failing to grant his motion for mistrial after the State’s attorney, during closing argument, stated: “I certainly think there is enough evidence to convict the defendant —.”

After defendant’s objection the trial court instructed the jury as follows: “Now, ladies and gentlemen, I have instructed the solicitor of this court to refrain from using the personal pronoun T,’ to refrain from interjecting his personal opinion about what the evidence of this case is or was or what your verdict should be. His personal opinion, my personal opinion, [defense counsel’s] personal opinion, anybody else’s personal opinion is not material to this case. You are to look only at the evidence in this case, the evidence that you’ve heard from the mouths of the witnesses, and to decide what the facts in this case are and apply the facts to the law, the law to the facts, and everybody reach their verdict. Any statements you’ve heard which were pronouncements of personal opinion, I instruct you to disregard and not use them in any way to reach a fair and impartial verdict in this case.”

Decided September 16, 1988

Rehearing denied September 28, 1988.

G. Hughel Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

“[I]f the remark by the state’s counsel was improper, the error was cured by the trial court’s instruction. Berryhill v. State, 249 Ga. 442, 451-452 (14) (291 SE2d 685); Thomas v. State, 248 Ga. 247, 252 (9) (282 SE2d 316). This enumeration of error is not meritorious.” Hilburn v. State, 166 Ga. App. 357, 358 (2) (304 SE2d 480).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76867.
    THE STATE v. UGALDE.
    (373 SE2d 643)
   Sognier, Judge.

The trial court granted Rafael Sosa Ugalde’s motion to suppress evidence seized at the time of his arrest, and the State appeals.

Evidence adduced at the hearing on the motion to suppress reveals that Joseph Dallas, a federal narcotics agent on duty at the Atlanta airport, observed appellee walking up the concourse with a tote bag away from the gate where a flight from Fort Lauderdale, a known drug source city, had just landed. He determined that appellee stopped at another gate to ask for directions for his connecting flight to Knoxville; that only one person, a Rafael Ugalde, was traveling alone from Fort Lauderdale to Knoxville; that passenger Ugalde had paid cash for his ticket the previous night; and that he had left a false callback number with the airline. Based on this information, which matched elements of the drug courier profile, Dallas decided to interview appellee. Thereupon, Dallas, who was dressed in casual clothes and carrying a concealed weapon, approached appellee at the Knoxville departure gate. Dallas ascertained from appellee that his ticket was issued in the same name as his driver’s license, Rafael Ugalde, and that he had no baggage tickets. Dallas also testified that appellee’s “hands were kind of shaking.” Fellow narcotics agents Paul Markonni and Rick Jordan, upon joining the conversation between Dallas and appellee, suggested that they move to the edge of the seating area, which appellee agreed to do. Informing appellee that they were looking for narcotics, the agents asked if he would agree to a search of him and his tote bag, to which appellee responded that he wanted to call his attorney first. Appellee agreed to accompany the agents to an airline office two gates away to make his call, but when he reached the office he was unable to find his attorney’s phone number in his bag. Markonni then stated that appellee did not need to consult with counsel to consent to a search, and again requested permission to search, to which appellee responded, “[g]o ahead, do it.” The search yielded seven containers of what appeared to be cocaine concealed in his pocket and tote bag.

The trial court determined that the search and seizure were illegal because once appellee requested counsel, all further interrogation and investigation should have ceased. Appellant argues that the search was consensual, and that the Fifth Amendment privilege against self-incrimination was not applicable.

We agree with appellant that the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination articulated in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), which is based upon the theory that custodial interrogation is inherently coercive, see Kirby v. Illinois, 406 U. S. 682, 688 (92 SC 1877, 32 LE2d 411) (1972), is not at issue here because there was no custodial police interrogation. See Scott v. State, 170 Ga. App. 409, 411 (2) (317 SE2d 282) (1984), aff’d, 253 Ga. 147 (317 SE2d 830) (1984), involving a similar factual situation. The trial court apparently focused on the guarantee of the right to counsel contained in the Sixth and Fourteenth Amendments, but that right “attaches only at or after the time that adversary judicial proceedings have been initiated against [appellee]. [Cits.]” Kirby, supra. Because appellee had not been indicted, arraigned, or otherwise subjected to the commencement of criminal proceedings against him, the trial court erred by concluding that his constitutional right to counsel had been invoked before the search. See id. at 688-690; see also Scott, supra at 411 (2).

Nonetheless, appellee contends that the motion to suppress was properly granted because he did not voluntarily accompany the agents or consent to the search. Appellee testified that he did not want to leave the departure gate with the agents, but he felt he “had to go with them.” However, Agent Dallas testified that at all times he and his fellow agents did nothing to indicate to appellee that he was not free to leave, and that they would not have pursued him if he had refused to cooperate. Dallas also testified that appellee agreed to allow a search of his person and his bag. Because there was a direct conflict in the testimony on this issue, the question below turned on the credibility of the witnesses. The trial court found that Dallas’s testimony presented “substantially the facts as they actually occurred,” and we do not find this decision clearly erroneous. See Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). Thus, the trial court’s grant of the motion to suppress being based on an invalid legal theory, see generally State v. Hortman, 185 Ga. App. 756, 757-758 (2) (365 SE2d 887) (1988), and the trial court’s findings of fact not otherwise requiring the grant of the motion, we therefore reverse the trial court’s grant of appellee’s motion to suppress the seized evidence.

Decided September 9, 1988

Rehearing denied September 28, 1988

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

Frederick R. J. Jackson, for appellee.

Judgment reversed.

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


author: Pope, Judge.

text:
    76913.
    TANDY COMPUTER LEASING v. BENNETT’S SERVICE COMPANY.
    (373 SE2d 647)
   Pope, Judge.

Tandy Computer Leasing (TCL) sued Bennett’s Service Company (Bennett’s) in Tarrant County, Texas for failure to make payments when due under the terms of a written lease agreement. Bennett’s answered the complaint, denying the jurisdiction of the Texas Court, but did not otherwise appear to defend the suit. The Texas courts entered judgment against Bennett’s for the amount sued upon, and TCL filed suit in Liberty County, Georgia to domesticate and enforce the judgment. Bennett’s collaterally attacked the judgment on the ground the Texas Court lacked personal jurisdiction over it; the Georgia court refused to enforce the judgment, finding it was not entitled to full faith and credit. Held:

The judgment of a foreign court must be given full faith and credit unless it appears that the court lacked jurisdiction over the person or subject matter or unless the judgment was procured by fraud. E.g., Gordon v. Gordon, 237 Ga. 171 (1) (227 SE2d 53) (1976). However, “[j]urisdictional issues adjudicated in the foreign judgment may not now be raised. [T]he doctrine of res judicata makes a prior judgment conclusive between the parties and their privies as to all matters put in issue or that might have been put in issue.” (Citations and punctuation omitted.) Mid-Ga. Bandag Co. v. Nat. Equip. Rental, 164 Ga. App. 68, 69 (296 SE2d 391) (1982). Accord Southeastern Metal Prods. v. Horger, 175 Ga. App. 143 (3) (332 SE2d 662) (1985); Crosby v. Wenzoski, 164 Ga. App. 266 (2) (296 SE2d 162) (1982); Melnick v. Bank of Highwood, 151 Ga. App. 261 (1) (259 SE2d 667) (1979).

Decided September 13, 1988

Rehearing denied September 28, 1988

Joseph C. Kitchings, for appellant.

A. G. Wells, Jr., for appellee.

In the case at bar, TCL alleged in its Texas complaint that Bennett’s was subject to the jurisdiction of the Texas court because it had entered into the lease agreement in Texas and had made payments to TCL on the lease there. The lease agreement, which was incorporated into the complaint by reference, provided, inter alia, that the lease was to be governed and construed in accordance with Texas law; the agreement also stipulated the parties’ consent to the jurisdiction of the courts of that state. Bennett’s denied it was subject to the jurisdiction of the Texas court in its answer.

“ ‘Where the question as to the jurisdiction of the court depends merely upon the existence or non-existence of a fact, and the judgment is otherwise regular, and the court otherwise a court of competent jurisdiction, it is to be presumed that the court found facts to exist such as warranted its assuming jurisdiction, and such finding of fact cannot be collaterally attacked.’ [Cit.]” Green Acres Discount v. Freid & Appell, 135 Ga. App. 816, 818-19 (219 SE2d 39) (1975). Because the record here reveals that the jurisdictional issue was raised in the Texas court, as shown by both TCL’s complaint and Bennett’s answer, we must presume, pursuant to Green Acres, that the Texas court adjudicated this issue. “ ‘[W]here the question of jurisdiction is raised in the foreign court and decided adversely to a party, he may not collaterally attack this determination.’ Green Acres [supra].” International Systems v. Bladen County, 168 Ga. App. 316, 317 (3) (308 SE2d 679) (1983). Cf. Berry v. Jeff Hunt Machinery Co., 148 Ga. App. 35 (1) (250 SE2d 813) (1978) (in which jurisdiction was neither alleged nor proved). Consequently, the Georgia trial court erred in holding that the judgment of the Texas court was not entitled to full faith and credit in the courts of this state.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


text:
    76923.
    In the Interest of R. L. H. et al.
    (373 SE2d 666)
   Sognier, Judge.

The trial court terminated the parental rights of the parents of two preschool-age boys, and the father appeals.

In June 1985, the Floyd County Department of Family and Children Services (DFCS) obtained an interlocutory order placing the children in temporary custody because neither parent could be located. Once DFCS established that both parents were incarcerated, the children were placed with their maternal grandparents, and a case plan was prepared that required the parents to visit the children and maintain regular contact with DFCS, and upon their release to obtain employment and a stable home, attend parenting classes, and refrain from criminal activity. Subsequent case plans and orders were entered while the children remained with their grandparents, but the trial court found that neither parent has complied with any of the requirements. The record reveals appellant-father has several burglary and bad check convictions dating back to 1978. The trial court found that although appellant has been imprisoned continuously since August 1985 except for a six-week period in late 1986, during the time he was released he failed to visit the children or contact the social worker, and did not refrain from criminal activity as the case plan required. Appellant stated in his brief that he was slated for parole in February 1988, but the record does not disclose whether he is currently incarcerated. Moreover, even if he was released, he has twelve years of parole and thirteen years of probation remaining on his sentence.

Appellant’s sole enumeration of error is that the trial court erred by finding clear and convincing evidence to support termination of his parental rights. OCGA § 15-11-81 (b) (4) (A) provides that a trial court may terminate parental rights upon finding that the child is a “deprived child” as a result of lack of proper parental care or control, and that such deprivation “is likely to continue” and “will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” In making this determination, the court may consider the “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). In addition, when the child is not in the parent’s custody, the court may consider whether the parent, without justifiable cause, has failed significantly for a year or more to communicate or to make a bona fide effort to communicate with the child or to comply with a court-ordered plan designed to reunite the child and parent. OCGA § 15-11-81 (b) (4) (C) (i), (iii).

“If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination is in the best interests of the child, after considering the physical, mental, emotional and moral condition and needs of the child, including the need for a secure and stable home. [Cit.]” In the Interest of S. G., 182 Ga. App. 95, 100 (354 SE2d 640) (1987). Once the trial court makes this determination, the appropriate standard of review “is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. [Cit.]” In re N. F. R., 179 Ga. App. 346, 348 (346 SE2d 121) (1986).

Decided September 28, 1988.

James R. McKay, for appellants.

James P. Orr, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

The trial court determined from the evidence that the children are deprived as a result of the lack of proper care, support, or control, that appellant’s incarceration has had a negative effect, and that these conditions are likely to continue, causing serious physical, mental, and emotional harm to the children. Although imprisonment alone does not always compel a termination of parental rights, see In the Interest of H. L. T., 164 Ga. App. 517 (298 SE2d 33) (1982), where, as here, the parent has not visited regularly with the children or established a parental bond, has failed to contact DFCS or refrain from criminal activity as required by the case plan, and has no present prospects for employment, income, or a stable home, those circumstances combine with the fact of incarceration to support a finding of parental unfitness sufficient to terminate a parent’s rights. See generally Brown v. Dept. of Human Resources, 157 Ga. App. 106 (1) (276 SE2d 155) (1981); Avera v. Rainwater, 150 Ga. App. 39-41 (256 SE2d 648) (1979). Appellant has asked for an opportunity to demonstrate his fitness as a parent, but “the evidence in this case, despite the mild protestations of the father, suggests no prognosis of improvement .... [A] plea of ‘six more months’ to improve is without force to overcome the proof of unrelieved detriment already suffered by the children for [most of their] life, where there is no indication,” other than the father’s vague promises, which the trial court found were not credible, that these conditions will be reversed. In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). The trial court’s decision was supported by clear and convincing evidence and we affirm.

Judgment affirmed.

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


text:
    77039.
    BAXTER v. THE STATE.
    (373 SE2d 834)
   Sognier, Judge.

Bradley Robert Baxter was convicted on two counts of armed robbery, and he appeals.

1. In his first enumeration of error, appellant challenges the convictions on the general grounds. Construed in the light most favorable to the State, see Hosch v. State, 185 Ga. App. 71 (1) (363 SE2d 258) (1987), the record reveals that the first armed robbery occurred at a drugstore in DeKalb County on the afternoon of' March 26, 1987. The store’s pharmacist testified that a white male wearing a lightweight jacket, jeans, and a motorcycle helmet approached her behind the pharmacy counter, pointed a gun at her, and demanded certain narcotics. She opened the narcotics cabinet, and the perpetrator fled the store with $200 worth of drugs. Two construction workers who had been working nearby testified they saw a white male drive up on a motorcycle, go into the drugstore, and then run out of the store a few minutes later carrying a small package. The second robbery occurred approximately fifteen hours later at a service station across the street from the drugstore. That victim stated he was robbed by a thin white male dressed in jeans and a jacket, wearing sunglasses and a cap, who asked for Kool cigarettes and then pulled out a gun and demanded cash, which the victim gave him. Lt. Roland Hardy of the DeKalb Police Department arrived at the scene shortly after the second robbery, and upon searching a nearby lot found the hat and glasses the victim had described. He then parked across the street and saw appellant, a slender white male wearing jeans, a jacket, and a helmet, emerge from a parking lot pushing a motorcycle. Lt. Hardy stopped and frisked appellant, and found a gun, a pack of Kool cigarettes, and some cash. Hardy then arrested appellant. A subsequent search of the motorcycle yielded additional cash in substantially the amount and denominations taken from the service station. Although the victim of the service station robbery was too distraught to make a definitive identification of appellant at the scene, he did identify the clothing and then identified appellant at trial. The pharmacist identified appellant from a photographic lineup and again at trial. We conclude this evidence was sufficient to authorize the jury to convict appellant on two counts of armed robbery under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next enumerates as error the trial court’s denial of his motion to suppress evidence obtained when Lt. Hardy stopped appellant after the service station robbery. Appellant first argues the initial stop was improper because the officer was operating on a mere hunch rather than an articulable suspicion that appellant was suspected of any wrongdoing. The record reveals that prior to stopping appellant, Lt. Hardy knew that an armed white male wearing a hat, jacket, and sunglasses had just robbed the station and fled on foot in a particular direction. Lt. Hardy also knew that a store across the street had been robbed earlier in the day by a white male armed with a gun who left the scene on a black motorcycle. Given that he had found a hat and glasses in a nearby lot and that he had seen no other vehicles in the vicinity since he arrived, when Lt. Hardy saw appellant, a white male wearing a jacket and riding a black motorcycle, he decided to stop appellant.

“ ‘Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only “unparticularized suspicion or ‘hunch,’ ” [Cit.].’ [Cit.] ‘An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Cits.]’ [Cit.]” Evans v. State, 183 Ga. App. 436, 438 (359 SE2d 174) (1987). This particularized suspicion must be based on the totality of the circumstances, which includes objective observations, information from police reports, consideration of the methods of operation of the type of lawbreaker at issue, and inferences and deductions drawn from the officer’s training and experience. Id.

Applying these principles to the instant case, we conclude that Lt. Hardy had sufficient articulable suspicion to authorize a brief stop of appellant. He matched the description of the perpetrator except for the absence of a hat and glasses, but Lt. Hardy already had found those items. Appellant appeared from the same general direction in which the perpetrator had fled. Given Lt. Hardy’s testimony that he was aware of appellant’s similarities to both the service station and drugstore suspects and that he knew some lawbreakers tend to concentrate their efforts in familiar geographic territory, we find that Lt. Hardy reasonably concluded that appellant, the first person he had seen on the street since his arrival, could have been the perpetrator of the two robberies.

Appellant next maintains the stop was a pretextual stop of the type disapproved in Tarwid v. State, 184 Ga. App. 853 (1) (363 SE2d 63) (1987). In Tarwid, the officer stopped the vehicle based on evidence of drunk driving, but continued to detain the occupants even after he concluded the driver was not intoxicated because a fellow officer suspected them of drug trafficking. Id. at 853-854. Unlike the officer in Tarwid, Lt. Hardy did not stop appellant under the pretext of investigating for one crime while he in reality sought evidence of commission of a greater offense. Instead, he knew an armed robbery had been committed and reasoned that appellant was a suspect in that crime. Based on the totality of the circumstances, we find no pretextual stop occurred.

Appellant’s final argument, that the arrest and search were illegal, is similarly without merit. Because he knew the suspect was armed and he saw a bulge under appellant’s arm, Lt. Hardy was authorized to frisk appellant. Butts v. State, 149 Ga. App. 492 (2) (254 SE2d 719) (1979). Once he discovered the gun and thus lawfully arrested appellant for carrying a concealed weapon, the subsequent search of his person and motorcycle was permissible. OCGA § 17-5-1 (a), (b).

3. Appellant next objects to the in-court identification of him by the robbery victims, contending the drugstore victim’s identification was irreparably tainted by the unduly suggestive pretrial photographic lineup, and the initial showup identification made by the second victim resulted in a substantial likelihood of irreparable misidentification. These two enumerations are meritless because appellant did not object to the in-court identifications at trial and thus waived his right to raise the issue on appeal. May v. State, 159 Ga. App. 565, 566 (2) (284 SE2d 70) (1981). Moreover, even if objection had been made, the trial court found the pretrial identifications were not impermissibly suggestive, and we do not find that decision to be clearly erroneous. See Bennefield v. Brown, 228 Ga. 705, 706 (187 SE2d 865) (1972) (in-court identification admitted when “prompt, on-the-scene” showup identification was made); Lynch v. State, 158 Ga. App. 643, 644 (281 SE2d 640) (1981) (subsequent in-court identification not tainted by prior photographic identification when, as here, victim had ample opportunity to observe perpetrator, brief period of time elapsed between crime and identification, and certainty of victim’s selection of photograph was apparent).

4. In his final enumeration of error appellant contends the trial court erred by refusing to declare a mistrial when a juror saw appellant being escorted by deputies during a break. The record reveals that appellant, who was dressed in a suit and was not handcuffed, was taken to the jury rest room by three deputies, who then stood between appellant and a juror when she started to enter the jury room.

Although a defendant has the right to be free of the “atmosphere of partiality” created by the use of excessive guards or shackles in the courtroom, Allen v. State, 235 Ga. 709, 711 (221 SE2d 405) (1975), “the mere fact of seeing an indicted accused in [custody]—not in the courtroom, as in the instant case, is not grounds for an automatic mistrial, but is addressed to the sound discretion of the trial court. [Cits.]” Robinson v. State, 164 Ga. App. 379, 380 (2) (296 SE2d 225) (1982). The trial judge questioned the juror to ascertain whether the incident caused her to harbor any prejudice toward appellant, and the juror stated she could be fair. Given these circumstances, we find no error in the denial of the motion for mistrial. See Carter v. State, 155 Ga. App. 840, 841 (273 SE2d 417) (1980).

Decided September 28, 1988.

Mark J. Kadish, James J. McGinnis, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    77116.
    YOUNG v. THE STATE.
    (373 SE2d 837)
   McMurray, Presiding Judge.

Defendant was convicted of aggravated assault. He appeals, enumerating error upon the general grounds contending the evidence demonstrated he was acting in self-defense.

Viewing the evidence in a light favorable to the verdict, we find the following: Defendant had been drinking and had engaged in altercations with various persons on June 19, 1986. In the early morning hours of June 20, 1986, defendant came to the door of the victim’s apartment several times. Defendant was 6 feet tall and weighed 170 pounds. The victim came out of the apartment carrying a baseball bat. He was 5 feet, 6 inches tall and weighed 128 pounds. Defendant and the victim were arguing with each other as defendant retreated into the street. The victim followed defendant. Suddenly, defendant hit the victim with a wooden stick and the victim fell to the ground. Defendant continued to beat the victim.

The victim’s cheek and jaw were broken. His skull was fractured extensively; slivers of bone went into his brain. He was rendered deaf in his right ear and partially blind in his right eye. He now has no sense of taste or smell and suffers constantly from dizzy spells. Held:

The evidence was sufficient to enable any rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. See Nelson v. State, 181 Ga. App. 455, 456 (1) (352 SE2d 636); OCGA § 16-5-21 (a) (2). Even if it could be said that defendant struck the first blow in self-defense, it is clear that the continued use of force (following the victim’s fall) was not justified. See Brown v. State, 249 Ga. 805 (294 SE2d 510); OCGA § 16-3-21.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided September 28, 1988.

Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.


text:
    77267.
    GILBERT v. THE STATE.
    (373 SE2d 668)
    Decided September 28, 1988.

      Floyd W. Keeble, Jr., for appellant.

      Lindsay A. Tise, District Attorney, Francis J. George, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of theft by receiving stolen property. He was sentenced to serve 20 years in confinement and this appeal followed.

The State has moved to dismiss this appeal on the ground that defendant escaped from custody. The motion is supported by the affidavit of the sheriff of Madison County, Georgia, who averred that defendant escaped on July 4, 1988, and that he has been jailed in Florida where motor vehicle theft charges have been lodged against him. Thus, the evidence demonstrates that defendant is no longer “in custody” in Georgia. See Blassingame v. State, 155 Ga. App. 235 (270 SE2d 399) (that defendant not “in custody” in Georgia where, following an escape, he was recaptured and jailed in Louisiana). Held:

“As defendant has escaped and remains without the lawful custody and control of the authorities of this state, this case has become moot. Therefore, the motion to dismiss defendant’s appeal must be granted. [Cits.] The public policy of this state is to deter escapes.” Blassingame v. State, 155 Ga. App. 235, 236, supra.

Appeal dismissed.

Pope and Benham, JJ., concur.


text:
    76667.
    WARREN v. AKINS.
    (373 SE2d 802)
   Pope, Judge.

Plaintiff Randy Warren was arrested when defendant John B. Akins swore out a criminal warrant alleging Warren was guilty of theft by taking. Warren was indicted by a grand jury, tried and acquitted of the crime. Warren then brought a civil action against Akins alleging, inter alia, he was liable for malicious prosecution. Warren appeals the grant of summary judgment to Akins on the malicious prosecution claim.

1. At the trial of the criminal case, Akins testified he told Warren he would not swear out a warrant if Warren would pay Akins the money he believed he was owed. However, if Warren refused to pay the money, Akins would swear out a warrant for Warren’s arrest. Warren now argues this admission establishes lack of probable cause for the criminal prosecution. The elements of the tort of malicious prosecution include both malice and lack of probable cause. OCGA § 51-7-40. Both must be shown before the plaintiff can recover. Medoc Corp. v. Keel, 166 Ga. App. 615 (1) (305 SE2d 134) (1983). Assuming, without deciding, that Akins’ testimony showed a malicious motive for swearing out the warrant, “lack of probable cause may not be inferred from malice.” Jones v. Walker, 167 Ga. App. 286, 287 (306 SE2d 315) (1983). See also Kviten v. Nash, 150 Ga. App. 589 (5) (258 SE2d 271) (1979). Thus, Akins’ testimony at the criminal trial did not establish lack of probable cause so as to defeat the motion for summary judgment.

2. At the trial of the criminal case, Warren’s motion for directed verdict of acquittal was denied. Denial of a motion for directed verdict of acquittal, because it requires an implicit finding that sufficient evidence exists from which a jury could find the defendant to be guilty beyond a reasonable doubt, constitutes a binding determination of the existence of probable cause to bring the criminal action. Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987); see also Allen v. Montgomery Ward & Co., 186 Ga. App. 337 (367 SE2d 120) (1988). According to the Supreme Court in Monroe, the denial of directed verdict by the criminal trial court, “unreversed and in the absence of fraud or corruption,” should suffice to establish the existence of probable cause. 256 Ga. at 761. In the case at hand, Warren was acquitted by the jury and did not appeal the case. Warren argues the denial of directed verdict in this case should not be binding because it was not reviewed on appeal and may have been erroneous. However, the underlying criminal action in the Monroe opinion was also not appealed for the same reason. The holding in Monroe does not require the denial of directed verdict to be affirmed upon appeal; it merely requires the criminal court’s ruling on the motion to be “unreversed.”

However, Monroe set forth a second exception to the rule that the denial of a motion for acquittal is a binding determination on the issue of probable cause: the criminal court’s ruling on the motion may not be binding if there exists evidence of fraud or corruption. If, for example, j;he defendant in a malicious prosecution action had falsely testified in the underlying criminal action, his testimony, though false and fraudulent, would be sufficient to defeat the defendant’s motion for directed verdict and to require the issue of defendant’s guilt or innocence to be determined by the jury. Would the denial of defendant’s motion insulate a perjurious witness from a claim for malicious prosecution? Pursuant to the rule announced in Monroe, the denial of defendant’s motion would not preclude the defendant from bringing an action for malicious prosecution if he can show the denial was procured by a fraud upon the court by reason of false testimony.

Decided September 15, 1988

Rehearing denied September 29, 1988

William J. Neville, Jr., Lovett Bennett, Jr., for appellant.

Gerald M. Edenfield, Marc M. Bruce, Michael J. Classens, for appellee.

In the case at hand, Warren alleged not only that Akins charged him with a crime without probable cause but also that he falsely charged him and prosecuted him through the jury trial. As the movant for summary judgment, Akins had the burden of piercing all allegations of the complaint. No evidence was presented from which the lower court could determine that false statements had not been made by Akins either in swearing out the warrant or in trial testimony. Thus, a question of fact remains for jury determination concerning Warren’s allegation that Akins falsely accused him or falsely testified against him. However, if the statements and testimony given by Akins are shown not to be false or fraudulent, then the issue of probable cause based upon that testimony has already been determined in favor of Akins by the ruling of the criminal court.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


text:
    76927.
    MARCHEL v. GEORGIA MUTUAL INSURANCE COMPANY et al.
    (373 SE2d 787)
   McMurray, Presiding Judge.

Plaintiff Marchel brought suit against Georgia Mutual Insurance Company (Georgia Mutual) and Herbert E. Lee, d/b/a AmPro Insurance Service (AmPro), in the Superior Court of Chatham County. She alleged that on January 28, 1986, she paid AmPro $155 for an automobile insurance policy which was to be issued by Georgia Mutual; that she was involved in an automobile collision on August 5, 1986; that she was injured in the collision and incurred medical expenses of $2,500; that she was subsequently informed that she was not insured; and that, therefore, defendants were liable to her for damages. The liability of AmPro was predicated upon a negligence theory; the liability of Georgia Mutual was predicated upon insurance contract and imputed negligence theories.

Defendants answered, denying that they were liable to plaintiff in any way. Following discovery, Georgia Mutual moved for summary judgment. The motion was granted and plaintiff appealed.

Viewing the evidence in favor of plaintiff, the party opposing Georgia Mutual’s summary judgment motion, we find the following facts: On January 28, 1986, plaintiff applied for Georgia Mutual automobile insurance through AmPro. AmPro, an independent insurance agency, was authorized to solicit applications for insurance coverage on behalf of several different insurance companies, including Georgia Mutual. It was not authorized, however, to issue a Georgia Mutual policy to an insured. Accordingly, the application contained a clause which read: “I. . . understand that no coverage is effective until this application is received and accepted by the company.”

Plaintiff paid AmPro $155 toward the annual premiums and completed the application. AmPro forwarded the application to Georgia Mutual along with a check for $518 (representing the entire annual premium). AmPro gave plaintiff an automobile insurance identification card (bearing a January 26, 1987, expiration date) and advised her that she would receive a policy in the mail.

Georgia Mutual received plaintiff’s application for insurance on January 30, 1986. It reviewed the application and rejected coverage. On January 31, 1986, Georgia Mutual sent AmPro notice that the application was being rejected. It also sent back the premium check to AmPro.

At the time it rejected coverage, Georgia Mutual gratuitously issued a binder to plaintiff as a courtesy. Through the binder Georgia Mutual agreed to provide coverage until February 10, 1986.

Plaintiff received no notice concerning the rejection of coverage and she did not receive a refund of the premium. It was not until plaintiff was involved in an automobile collision, on August 5,1986, that she learned she was not insured. Held:

1. The record demonstrates clearly that no automobile insurance policy was issued to plaintiff by Georgia Mutual. Although Georgia Mutual issued a binder to plaintiff, it expired by its own terms on February 10, 1986. It cannot be said, therefore, that Georgia Mutual is liable to plaintiff pursuant to a contract of insurance or binder.

Plaintiff contends Georgia Mutual cannot deny coverage because it failed to send a notice of cancellation pursuant to OCGA § 33-24-44. We cannot accept this contention. OCGA § 33-24-44 applies only to the cancellation of an insurance policy. It does not apply where, as here, an insurer declines to accept coverage. See Goodley v. Fireman’s Fund &c. Ins. Co., 173 Ga. App. 277 (326 SE2d 7). Nor does it apply to the expiration of a binder. See Goodley v. Fireman’s Fund &c. Ins. Co., supra.

Decided September 8, 1988

Rehearing denied September 29, 1988

Clarence L. Martin, for appellant.

R. Kran Riddle, Steven P. Gilliam, Donald T. Hunt, for appellees.

2. Whether or not AmPro was an agent of Georgia Mutual, it is clear that AmPro was plaintiff’s agent for the purpose of obtaining automobile insurance. Thus, at most, AmPro was a “dual agent.” See Pope v. Harper, 40 Ga. App. 573 (1) (150 SE 470).

“It is generally recognized that where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act. Another way of stating this same principle is that the misconduct of a dual agent by consent cannot be imputed to either of the principals who is not actually at fault, since each of the principals is under an equal duty to exercise ordinary care in selecting and supervising the agent to protect his own interests.” Hodges v. Mayes, 240 Ga. 643, 644 (242 SE2d 160).

Since AmPro was, at most a “dual agent” of plaintiff and Georgia Mutual, Georgia Mutual cannot be held liable to plaintiff for the alleged negligence of AmPro, unless Georgia Mutual participated in the tort. There is no evidence that Georgia Mutual was a participant in the tort. It follows that, in light of the “dual agency,” Georgia Mutual cannot be deemed liable for AmPro’s alleged negligence.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    77106.
    THOMAS et al. v. CLARK.
    (373 SE2d 668)
   Birdsong, Chief Judge.

Appellants appeal based on seven enumerations of error. The jury awarded appellant Cindy L. Thomas damages in the amount of $5,700 and appellant Ricky W. Thomas damages in the amount of $4,300. Subsequently, the trial judge reduced the jury’s verdict against appellant Ricky W. Thomas to $0.

Appellant Cindy L. Thomas was driving an automobile down a major thoroughfare. Appellee Frances T. Clark was driving an automobile on a street running perpendicular to the thoroughfare. Appellee Clark attempted to cross the thoroughfare, and a collision occurred in which appellant Cindy L. Thomas’ vehicle collided with the right rear portion of appellee’s vehicle. Neither driver saw the other driver before the collision; however, a witness did see appellee enter the thoroughfare, cross in front of appellant Cindy L. Thomas’ oncoming vehicle, and observed the resulting collision. Appellee testified that she did stop at the stop sign and look in both directions before proceeding across the thoroughfare. The witness did not observe the appellee stop, but could not testify as to whether the appellee was stopped before she was observed. Held:

1. Appellant’s first enumerated error is that the trial court erred in admitting evidence of medical benefits paid by collateral sources. The collision occurred on December 9, 1986, the complaint was filed on March 25, 1987, and trial commenced January 28, 1988. The collateral source rule was a viable part of Georgia law for many years. See, e.g., Western & A. R. v. Meigs, 74 Ga. 857. This rule, in essence, precludes evidence of the receipt of benefits or mitigation of loss from sources other than the defendant from operating to diminish the plaintiff’s recovery of damages. Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273). However, the effect of the collateral source rule was radically modified by amendment of OCGA § 51-12-1, which became effective on July 1, 1987. Under amended OCGA § 51-12-1, in certain cases the jury may in its discretion consider collateral source evidence, but shall not be directed to reduce an award of damages accordingly. The Supreme Court has held that the provisions of OCGA § 51-12-1 abolishing the original collateral source rule would be applied prospectively only. Polito v. Holland, supra at 58; Powell v. Stephens, 258 Ga. 149 (368 SE2d 518). Accordingly, we find that it was error to admit evidence of medical benefits paid by collateral sources in evidence.

However, our inquiry does not end at this juncture, as the error must be prejudicial to warrant reversal. See Kelley v. Harris, 187 Ga. App. 215 (369 SE2d 534). Appellants did not waive, but affirmatively asserted, claims for medical damages for Cindy L. Thomas’ injuries. Appellee thereafter elected to recall appellant Richard W. Thomas, and to obtain in-court admissions from him regarding the medical insurance benefits paid for his wife’s injuries. The trial judge subsequently instructed that the jury in its discretion could consider the existence of an insurance policy purchased by appellants in arriving at its verdict. Under these circumstances, we cannot find the error harmless within the meaning of OCGA § 9-11-61.

Appellee asserts that in any event only appellant Richard W. Thomas made the claim for medical expenses and therefore the judgment for him is the only judgment, if any, which should be reversed. The trial record, however, does not support this argument. First, the complaint reflects that Richard W. Thomas did affirmatively claim for the hospitalization, medical care and treatment expenses of his wife. However, the complaint also avers that Cindy L. Thomas “incurred medical bills for treatment and care, and will continue to do so in the future,” and reflects that both parties jointly prayed for certain damages including “special damages as proven at trial.” Secondly, neither appellant abandoned their claims at trial. Thirdly, the form of the verdict does not expressly reveal what proportion of the amount awarded to each appellant was for medical expenses, if any. We decline to speculate regarding the jury’s intent in announcing its particular verdict. Suffice it to say we cannot, based on this record, draw the conclusion which the appellee seeks concerning this issue.

The facts of this case are distinguishable from Petty v. Barrett, 187 Ga. App. 83 (369 SE2d 294). We are satisfied that a new trial is necessary in this case. In particular, we find that the issue of comparative negligence is inextricably joined with the issue of damages, and thus our just disposition of this case mandates that the judgment be reversed and a new trial authorized as to the claims of both appellants. OCGA § 5-6-8.

2. Appellant asserts that the trial court erred in charging the jury on the issue of comparative negligence. We disagree. See Fargason v. Pervis, 138 Ga. App. 686 (227 SE2d 464).

3. Appellant enumerates as error the trial court’s charge to the jury that it could return a verdict for appellant Cindy L. Thomas on her claim of personal injuries without returning a verdict for appellant Richard W. Thomas on his consortium claim. We find this case factually distinguishable from Groover v. Dickey, 173 Ga. App. 73 (325 SE2d 617) and Clark v. Wright, 137 Ga. App. 720 (224 SE2d 825); see also Stapleton v. Palmore, 250 Ga. 259 (297 SE2d 270). Although the trial court’s charge to the jury regarding the issue of consortium may have been confusing when viewed in its totality, the disposition we are directing in this case will correct any potential harm that might have flowed therefrom.

4. Appellant enumerates as error the trial court’s ruling allowing appellee’s counsel to cross-examine appellant Cindy L. Thomas on the allegations contained in the unsworn complaint. Although a defendant is entitled to a thorough and sifting cross-examination of a witness, OCGA § 24-9-64, the scope of such examination is within the sound discretion of the trial judge. White v. State, 253 Ga. 106 (4) (317 SE2d 196). This discretion will not be disturbed by an appellate court “ ‘unless manifestly abused.’ ” Sanders v. State, 181 Ga. App. 117 (3) (351 SE2d 666). Appellant has failed to demonstrate such an abuse of discretion in this case. However, we hasten to add that generally unsworn pleadings are drafted by attorneys representing the parties and thus care must be exercised to ensure that the specific scope of cross-examination meets the basic requirements of logical relevancy, legal relevancy, and materiality. See generally OCGA §§ 24-2-1; 24-9-62; Fitzgerald v. State, 166 Ga. App. 307 (7) (304 SE2d 114). Moreover, the trial court may exercise its discretion to require the party conducting cross-examination “to make the relevancy of his questions apparent.” Black v. Aultman, 120 Ga. App. 826, 831 (172 SE2d 336).

Decided September 29, 1988.

Peter G. Williams, for appellants.

Kay D. Thompson, for appellee.

5. In view of the disposition of this case, appellant’s remaining enumerations of error need not be addressed either because they are without merit or because repetition of the conduct complained of is not likely to recur.

Judgment reversed and case remanded with direction.

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


text:
    77207.
    PRESIDENTIAL HOTEL v. CANAL INSURANCE COMPANY.
    (373 SE2d 671)
   McMurray, Presiding Judge.

Plaintiffs Sueun Staggs, Sue Blizzard and Kee Leech, brought suit against several entities doing business as the Presidential Hotel and Joe Wang individually. They alleged that they were employed by the hotel and that Wang, their supervisor, acting individually and as an agent of the hotel, used his position and authority to sexually harass them. They also alleged that Wang paid plaintiffs less than they earned; that he paid plaintiffs and scheduled work hours in such a way as to forestall any complaints which plaintiffs otherwise would have made; and that the hotel was aware of Wang’s actions. Furthermore, they alleged that defendants fraudulently induced them to enter into contracts of employment and that “[p]laintiffs were damaged thereby both mentally and monetarily.” Finally, with regard to plaintiff Sueun Staggs, it was alleged that she sustained injuries when she slipped and fell on a wet floor in the hotel; that she initiated a workers’ compensation claim but was informed by Wang that the hotel did not carry workers’ compensation insurance; that Wang said that he or the hotel would pay Staggs’ medical expenses if she did not pursue a claim; that Staggs was repeatedly told she would be compensated; that all such statements were false and made to induce Staggs to forego a workers’ compensation claim; and that “[p]laintiff Sueun Staggs believed the statements of Defendants, acted upon them, and was damaged thereby in that no compensation was paid.”

Canal Insurance Company (“Canal”) previously had issued a policy of insurance to the hotel. The policy provided, in pertinent part: “The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent . . .”

The policy defined the term “bodily injury” as “bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom.” The term “occurrence” was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” The term “property damage” was said to mean “(1) physical injury to or destruction of tangible property which occurs during the policy period ... or (2) loss of use of tangible property which has not been physically injured or destroyed . . .”

The defense of plaintiffs’ lawsuit was tendered to Canal by the hotel. Canal denied coverage. In a third-party complaint, the hotel sought damages against Canal for its refusal to defend the hotel and pay any loss which the hotel might sustain.

While plaintiffs and defendants skirmished (see Staggs v. Wang, 185 Ga. App. 310 (363 SE2d 808)) Canal moved for summary judgment upon the third-party complaint. Canal’s summary judgment motion was granted and the hotel appealed. Held:

The duty of an insurer to defend its insured is determined by the contract of insurance. Great American Ins. Co. v. McKemie, 244 Ga. 84, 85 (259 SE2d 39). Like the majority of liability insurance policies, the policy issued by Canal to the hotel required Canal to defend claims asserting liability under the policy, even if those claims are groundless.

To determine whether a claim (even a groundless claim) is covered by the policy, we must look to the allegations of the complaint. Great American Ins. Co. v. McKemie, supra. In the case sub judice, the complaint sets forth sexual harassment, fraud and implied contract claims. See Staggs v. Wang, 185 Ga. App. 310, 312 (4), supra. Do such claims assert liability under the policy?

The policy covers bodily injury or property damage claims resulting from an occurrence. It is argued that plaintiffs are seeking damages for bodily injury and that, therefore, liability is asserted under the policy. In this regard, the hotel points out that plaintiffs’ lawsuit was characterized by the trial court “as one seeking compensation for personal injuries . . .” Staggs v. Wang, 185 Ga. App. 310, 311 (2), supra.

Used in an insurance policy, the term “bodily injury” means just that — “bodily injury.” It pertains to physical injury to the body. It does not include non-physical, emotional or mental harm. West American Ins. Co. v. Bank of Isle of Wight, 673 FSupp. 760, 765 (E.D. Va. 1987); Continental Cas. Co. v. Synalloy Corp., 667 FSupp. 1550, 1559 (S.D. Ga. 1985). And it cannot be equated with the broader term “personal injury.” Rolette County v. Western Cas. &c. Co., 452 FSupp. 125, 130 (D. N.D. 1978).

In asserting their sexual harassment, fraud and implied contract claims, plaintiffs seek monetary and “mental damages.” They do not seek damages for actual physical harm. Compare Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456, 457 (260 SE2d 860), where plaintiff sought damages for mental anguish and humiliation in addition to actual damages resulting from a rape. Thus, plaintiffs’ claims do not seek damages for “bodily injury.” West American Ins. Co. v. Bank of Isle of Wight, 673 FSupp. 760, 765, supra; Continental Cas. Co. v. Synalloy Corp., 667 FSupp. 1550, 1559, supra.

Assuming, arguendo, plaintiffs do assert claims for bodily injury, we must conclude nevertheless that the policy issued by Canal does not afford coverage to the hotel. The policy covers damages for bodily injury resulting from an “occurrence.” That term is defined in the policy as an “accident . . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Thus, intentional acts are not covered under the policy. Georgia Farm Bureau &c. Ins. Co. v. Meriwether, 169 Ga. App. 363 (312 SE2d 823); Georgia Farm Bureau &c. Ins. Co. v. Ray, 148 Ga. App. 85 (251 SE2d 34).

It is alleged by plaintiffs that the hotel, by and through its agents, sexually harassed and defrauded plaintiffs. Given these allegations of intentional conduct, it cannot be said that any resulting bodily injury to plaintiffs was unintended. Accordingly, the assertions of liability by plaintiffs do not fall with the policy’s definition of an “occurrence.” Georgia Farm Bureau &c. Ins. Co. v. Meriwether, 169 Ga. App. 363, supra.

Decided September 29, 1988.

John G. Haubenreich, for appellant.

T. Cullen Gilliland, John B. Austin, for appellee.

Plaintiffs’ claims are not covered by the policy of insurance which Canal issued to the hotel. It follows that the trial court did not err in granting Canal’s motion for summary judgment.

Judgment affirmed.

Pope and Benham, JJ., concur.