author: McMurray, Presiding Judge. Beasley, Judge,

text:
    75755.
    LEE v. THE STATE.
    (367 SE2d 115)
   McMurray, Presiding Judge.

Defendant was indicted for burglary and for armed robbery. The evidence adduced at trial was as follows:

At approximately 2:30 in the afternoon on May 7, 1986, the victim drove into her driveway and noticed a two-door “gray hatchback” automobile parked (backed up) in the garage of her house. The doors of the vehicle were open and “the hatchback was up.” Defendant came from the victim’s house with a handgun and ordered the victim out of the car. The victim did not comply and another man, also armed with a handgun, came from the victim’s house. Defendant again ordered the victim out of her car. She complied and defendant’s accomplice told the victim to run into the woods. Defendant then suggested that they “tie her up in the house.” Defendant’s accomplice ignored this suggestion and once more ordered the victim to run into the woods. The victim complied; however, before fleeing she noticed that the “hatchback” automobile was “loaded” with “things.” Upon returning to her house a few moments later, the victim discovered that the armed men had fled in the “hatchback” automobile and that several items were missing from her house, including the victim’s telephones. The victim subsequently drove to a nearby store and summoned the police. Defendant was found guilty on both counts of the indictment and this appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the evidence was insufficient to support the jury’s verdicts as “the only evidence placing [him] at the scene of the crimes is the testimony of the victim who identified [him] only after several photographic and live lineups were performed.” In support of the assertion that he was misidentified, defendant points to the testimony of his brother, Larry Lee, who testified that he and Bruce Lee, defendant’s other brother, committed the crimes charged.

An examination of the record reveals that two photographic lineups and three “live” lineups were displayed to the victim. The first photographic lineup was conducted on June 19, 1986, and comprised of six photographs of men with similar physical characteristics. A five-year-old photograph of defendant, which was acquired from police records, was included in this lineup. The victim was unable to identify defendant. (The victim explained on direct examination that she was unable to identify defendant’s photograph because she was under “stress” at the time and the photograph did not reflect defendant’s current physical characteristics.) The second photographic lineup was conducted on June 24, 1986. A photograph of defendant was not included.

The first “live” lineup was conducted at the Chatham County Police Department and the victim was unable to identify any of the participants of the lineup. The second and third “live” lineups were conducted on July 23, 1986, at the Glynn County, Georgia jail. Both lineups included six men of similar physical characteristics who were chosen from the inmate population at the jail. The victim was in a separate room and concealed from the participants of the lineups by special lighting. The victim was not assisted when she examined the lineup participants.

Defendant was not included in the first lineup conducted at the Glynn County jail. However, defendant participated in the second lineup and he was immediately identified by the victim as one of the perpetrators of the crimes.

Contrary to defendant’s assertion, we find none of the pre-trial identification procedures used by law enforcement officers to be impermissibly suggestive to the victim. Further, we find little, if any, likelihood of misidentification of defendant by the victim at trial as the evidence shows that the victim had more than adequate opportunity to observe defendant during commission of the crimes. Whatever conflicts existed in the evidence as to the identity of defendant, they were resolved against him by the jury. The evidence presented at trial was sufficient to convince a rational trier of fact, beyond a reasonable doubt, that defendant was one of the perpetrators of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Hamilton v. State, 255 Ga. 468, 469 (1) (339 SE2d 707). This enumeration of error is without merit.

2. In his second enumeration of error, defendant contends the trial court erred in allowing the State’s attorney to refer to him as a “bandit” during closing argument.

“In Miller v. State, 226 Ga. 730, 731 (177 SE2d 253) (1970) the prosecutor’s characterization of the defendant ‘as a brute, beast, an animal, and a mad dog who did not deserve to live . . .’ was held not to require a mistrial.” Berryhill v. State, 235 Ga. 549, 552 (7) (221 SE2d 185). Under the circumstances of the case sub judice, we do not find the State’s attorney’s characterization of defendant as a “bandit” grounds for reversal. This is particularly true since this characterization of defendant was supported by evidence adduced at trial. “[T]he unflattering ‘characterization of a defendant does not require a new trial when such descriptions are supported by the evidence.’ [United States v. Malatesta, 583 F2d 748, 759 (5th Cir. 1978), cert. denied, 440 U. S. 962 (99 SC 1508, 59 LE2d 777)].” William W. Daniel, Ga. Criminal Trial Practice (1986 ed.), 578, § 23-6.

3. Lastly, defendant contends the trial court erred in instructing the jury to disregard the following testimony: “Q. [Defendant’s attorney] To your knowledge has [defendant] ever been in trouble? A. [Defendant’s witness] No, sir. He’s never been in any trouble.” Defendant argues that this testimony was relevant to his good character.

“[T]he general character of the defendant and his conduct in other transactions is irrelevant unless the defendant chooses to put his character in issue. [Cits.]” Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615). “[A] witness’ opinion of a party’s character which is based solely upon the witness’ personal observation of the party is not an approved mode of character evidence, Waters v. State, 248 Ga. 355 (5) (283 SE2d 238) (1981), and is subject to being struck, Hudson v. State, 163 Ga. App. 845 (4), at 845-846 (295 SE2d 123) (1982). [In the case sub judice,] the . . . question and answer, if they can properly be characterized as the equivalent of character evidence, clearly focused on personal observation and were eligible for purging.” Franklin v. State, 251 Ga. 77, 80 (303 SE2d 22). Consequently, the trial court did not err in striking the witness’ testimony from the record. See Jones v. State, 257 Ga. 753 (1) (363 SE2d 529).

Decided March 11, 1988.

Phillips D. Hamilton, for appellant.

J. Lane Johnston, District Attorney, for appellee.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 and 3. I agree with the result of the ruling in Division 2, but for the reason that the remark did not constitute reversible error. In this regard it is analogous to Castell v. State, 250 Ga. 776, 788 (8) (a) (301 SE2d 234) (1983).

Appellant’s contention is that his objection to the statement should have been sustained because of a violation of OCGA § 17-8-75. What the district attorney said was: “Mrs. Allen [the victim] — and I’m gonna get to this when I talk to you again later — has positively identified this bandit over here.” This implied his personal belief, directed to the jury, that defendant is a bandit. Considering the context and the nature of the statement, however, it does not rise to the level of harm which required reversal in the case cited by appellant, Forster v. State, 60 Ga. App. 598 (4 SE2d 498) (1939).


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    75787.
    BURKE v. THE STATE.
    (367 SE2d 118)
   Sognier, Judge.

Burke appeals from his conviction of rape, aggravated sodomy, aggravated assault and false imprisonment.

1. During trial the State sought to introduce the testimony of Rita Heath concerning an alleged sexual assault by appellant as evidence of a similar transaction. After evidence was presented at a hearing outside the presence of the jury the trial court ruled that her testimony was not admissible. Subsequently, when appellant testified in his own behalf, he stated on direct examination that when the victim was talking to him while they were drinking in appellant’s apartment, she asked appellant why he was not more aggressive toward her, and he told the victim that “I just don’t jump at women.” On cross-examination appellant was asked if he remembered jumping at Heath, and he said no. After the defense rested the State called Heath as a rebuttal witness to impeach appellant’s testimony that he did not jump at women. Heath was allowed to testify, over objection, that on October 16, 1985, appellant offered to let Heath use the telephone in his apartment to call a taxi. Heath accepted the offer and after calling a taxi, appellant would not let her leave the apartment. Appellant then put a knife to Heath’s throat, pushed her onto a couch and forced her to disrobe. Appellant had removed his clothing and got on top of Heath, but before he could complete a sexual assault of Heath the police arrived, having been summoned by one of Heath’s friends who heard her call for help.

Appellant contends it was error to allow Heath to testify in rebuttal, because the trial court had ruled that such testimony was inadmissible as evidence of a similar transaction. Where the defendant falsely denies past criminal conduct the State is entitled to impeach the defendant, as it would be entitled to impeach any other witness, by showing the untruth of the statement. Porter v. State, 254 Ga. 388, 389 (2) (330 SE2d 94) (1985). Since appellant testified that he did not jump at Heath on October 16, 1985, the State was authorized to impeach appellant by showing that he did, in fact, assault Heath on that date. Id.; Williams v. State, 257 Ga. 761 (363 SE2d 535) (1988). (The trial court determined that the jury could consider an assault the same thing as “jumping at” a woman.)

Appellant also argues that the court erred by not instructing the jury, without request, that Heath’s testimony was admitted for the limited purpose of impeaching appellant’s testimony that he did not jump at women. This argument has been decided adversely to appellant. State v. Byrd, 255 Ga. 665, 668 (341 SE2d 455) (1986).

2. Appellant contends the trial court erred by denying his request for funds to hire an expert to perform an analysis of appellant’s semen. No semen had been taken from appellant, and the only evidence offered by the State was that an analysis of substances taken from the victim when a rape kit was prepared disclosed the presence of sperm, indicating that the victim had engaged in sexual intercourse within twenty-four to thirty-six hours prior to her physical examination. There was no evidence that the sperm belonged to appellant, or that it matched sperm found in semen taken from appellant. Thus, any analysis of appellant’s semen would have no probative value, since it would not prove or disprove any fact in issue.

The grant or denial of a motion by a defendant for funds to employ an expert witness lies within the sound discretion of the trial court, and absent an abuse of such discretion, the trial court’s ruling will be upheld. Patterson v. State, 239 Ga. 409, 412 (3) (238 SE2d 2) (1977); Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985). See also Roseboro v. State, 258 Ga. 39 (365 SE2d 115) (1988), which sets forth the showing required by an indigent defendant to obtain funds to hire an expert witness. Appellant has made no showing of prejudice resulting from the court’s ruling, and thus, we find no abuse of discretion. Id.

Judgment affirmed.

Deen, P. J., and Parley, J., concur.

Decided March 11, 1988.

Jerry Boykin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Assistant District Attorneys, for appellee.


author: Birdsong, Chief Judge.

text:
    75927.
    ALLEN v. MONTGOMERY WARD & COMPANY.
    (367 SE2d 120)
   Birdsong, Chief Judge.

This is an appeal from an order of the superior court granting appellee/defendant’s motion for summary judgment in a suit for malicious prosecution.

Appellant/plaintiff was prosecuted in state court for the offense of shoplifting. She pled not guilty to the accusation and contested the State’s version of the facts. Her motion for a directed verdict of acquittal was denied by the trial judge; however, the jury subsequently acquitted the appellant/plaintiff. Thereafter, appellant/plaintiff initiated suit against the appellee/defendant for malicious prosecution. The appellee/defendant’s motion for summary judgment in this civil suit was granted. Appellant/plaintiff enumerates four errors for this court’s consideration. The first three enumerations of error will be consolidated for purposes of judicial resolution. Held:

1. Appellant/plaintiff enumerates as error that the trial court erred in granting defendant/appellee’s motion for summary judgment because genuine issues of material fact existed which should have been presented to a jury, and thus the trial court’s ruling was contrary to law, contrary to the evidence, and strongly against the weight of the evidence, respectively.

OCGA § 51-7-40 provides that “[a] criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” A motion for summary judgment should be granted in a suit for malicious prosecution, as in other cases, when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c).

In 1881, in the case of Anderson v. Keller, 67 Ga. 58, the Supreme Court held that it was error in a suit for malicious prosecution for the trial judge to grant non-suit where the material facts were in dispute. The court stated, “even if the whole proceeding had been without malice and with probable cause in the opinion of the judge, yet he should have sent it to the jury. . . .” Id. at 61. Further, OCGA § 51-7-43 pertinently provides, “[l]ack of probable cause shall be a question for the jury, under the direction of the court.” However, this court has held that while “[o]rdinarily the existence of probable cause is a jury question . . . where the material facts are not in dispute or only one inference can be drawn, the question becomes one of law.” Abernathy v. Dover, 139 Ga. App. 323 (228 SE2d 359). Although Abernathy was decided before OCGA § 51-7-43 was enacted, a similar code provision (Code Ann. § 105-802) was then in existence. Accordingly, we see no necessity to depart from this established rule in the resolution of the case before us, although under most circumstances the question of probable cause will be “a mixed question of law and fact.” See generally Melton v. LaCalamito, 158 Ga. App. 820, 823 (282 SE2d 393). This court must carefully examine the circumstances of individual malicious prosecution cases to determine whether the question of probable cause therein presented constitutes an issue of fact for the jury, an issue of law for the court or a mixed question of law and fact.

In 1987, the Supreme Court in the case of Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23), was faced with the issue of “whether a judicial determination of probable cause made in the course of a criminal prosecution can establish, as a matter of law and for purposes of summary judgment, the existence of probable cause in a civil action for malicious prosecution.” At his trial on the criminal charge, the defendant Sigler’s counsel moved for a directed verdict of acquittal at the close of the State’s case. The trial court denied the motion. The Supreme Court determined that the standard employed by the trial judge in ruling on a motion for judgment of acquittal is a higher standard than that of “mere ‘probable cause.’ ” Id. at 761. Accordingly, the court opined, “when the trial judge rules that the evidence is sufficient as a matter of law to support a conviction (that is, is sufficient to enable a rational trier of fact to find each and every element of the guilt of the accused beyond a reasonable doubt) ... no reason [exists] why such a holding — unreversed and in the absence of fraud or corruption — should not suffice as to the existence of probable cause.” Id. Thus, the Supreme Court concluded that the trial court’s denial of a motion for a directed verdict of acquittal constituted a binding determination of the existence of probable cause. Id.

The case of Monroe v. Sigler is directly on point with the facts of the case at bar. However, appellant/plaintiff argues that it is but an aberration, which is contrary to the sound logic found in Wilborn v. Elliott, 149 Ga. App. 541 (5) (254 SE2d 755) holding that verdicts can be directed only when there is no conflict as to any material issue and when the verdict directed is demanded by the evidence and all reasonable deductions therefrom. Id. at 543. Appellant/plaintiff also argues that Monroe is in contravention of 100 years of Georgia precedent. However, appellant/plaintiff does not show that the trial judge’s ruling denying the motion for directed verdict was ever reversed or that fraud or corruption was an influencing factor in that ruling.

Decided March 11, 1988.

H. Baxter Harcourt, Tina G. Stanford, for appellant.

Robert C. Martin, Jr., for appellee.

We do not view Monroe v. Sigler, supra, as an aberration, rather we view it as an exception to the statutory rule that lack of probable cause is a question for the jury. In this regard, it must be remembered that while judicial interpretation is carefully constrained by the doctrine of stare decisis, it is a dynamic process nonetheless. In our view, Monroe v. Sigler is dispositive of this enumerated error. Appellant/ plaintiff, in effect, has solicited this court to ignore the precedent established by Monroe and to author an opinion that would establish a contrary rule of law. This we cannot do. Ga. Const., Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents”). Thus, we conclude that appellant’s first, second, and third enumerated errors are without merit.

2. Appellant’s fourth enumerated error is that the trial court erred in granting appellee/defendant’s motion for summary judgment because its ruling is unconstitutional in that it deprived appellant/ plaintiff of her right to the courts and of her right to trial by jury as enumerated in the Bill of Rights of the Constitution of the State of Georgia.

We find that appellant/plaintiff has waived this constitutional issue by failing to timely raise it and by failing to obtain a ruling thereon at the trial level. Cf. Shirley v. State, 254 Ga. 723, 724 (334 SE2d 154); Hardison v. Haslam, 250 Ga. 59, 61 (295 SE2d 830) (“ It is well settled that “(T)his court will not pass upon the constitutionality of a statute unless it clearly appears that the point was properly raised in the trial court and passed on.” ’ ”); Arp v. State, 249 Ga. 403 (1) (291 SE2d 495).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.


author: Deen, Presiding Judge.

text:
    75655.
    NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY v. BABYAK et al.
    (367 SE2d 567)
   Deen, Presiding Judge.

Appellee Babyak sustained a head injury on March 12, 1985, when struck by a steel beam while working his regular job for appellee Crowe Manufacturing Company. Other than taking the afternoon off to obtain medical attention, he lost no time from work, and he filed no claim for Workers’ Compensation benefits. According to his testimony, however, he continued to experience pain in his back and jaw, especially when doing the bending and lifting required by his job. On May 13, 1985, he gave two weeks’ notice of his intention to quit the job. On the next day, however (May 14, 1985), Babyak had a dispute with his supervisor and left the job site. He subsequently filed a claim for Workers’ Compensation benefits. At the time of the March 12 incident, appellant Northbrook Property & Casualty Insurance Company (Northbrook) was Crowe’s Workers’ Compensation carrier; before Babyak quit his job, however, appellee Liberty Mutual Insurance Company (Liberty Mutual) became the carrier.

The administrative law judge (ALJ) who heard the claim found that on the day Babyak gave notice that he was leaving the job (May 13), he had sustained a change in condition with relationship to the injury of March 12. Northbrook was ordered to pay benefits but appealed the award to the full Workers’ Compensation board, alleging that the May incident constituted a “new accident” rather than a “change in condition” and that it was Liberty Mutual which had the responsibility for paying any benefits that might be due. The board affirmed the ALJ’s award, adopting her findings of fact and conclusions of law. The Superior Court of DeKalb County, applying the “any evidence” standard of appellate review, affirmed. We granted a discretionary appeal to determine whether, as a matter of law, the superior court erred in affirming the board’s award for a “change in condition.” Held:

The record reveals that, prior to the March 12 injury, claimant Babyak had occasionally worked with musical groups, assisting them in setting up their instruments and transporting them from job to job, and that he continued to engage in such employment from time to time both after the occurrence of the March injury and after leaving Crowe’s employ in May. According to the record, diagnostic procedures performed after the May incident revealed disc abnormalities which could have resulted from the blow from the steel beam and also could have been the source of the pain and discomfort experienced on the job subsequent to the March injury; none of the diagnostic or therapeutic treatment subsequent to the May incident was paid for by the employer or his workers’ compensation insurer. The record further reveals that the ALJ found Babyak fully disabled as of the May date but expressly found that he had not sustained the burden of proving a new injury in May. This finding is corroborated by Babyak’s own testimony that no specific “physical” event had occurred in May which caused him to decide to leave the job. The record further shows that, according to Babyak’s supervisor’s testimony, claimant on May 13 in no way attributed to the March 12 injury his decision to resign. It is undisputed that Babyak has received no workers’ compensation benefits in association with the March 12 injury.

Whether an employee’s inability to continue working has been caused by a new accident or a change in condition is a question of fact for the administrative law judge. United States Fid. &c. Co. v. Reynolds, 146 Ga. App. 615 (247 SE2d 199) (1978). A necessary factual predicate to a determination that a “change in condition,” rather than a “new injury” (or “new accident”), has occurred is that there has previously been an award (or equivalent) for the injury whose worsening has produced the present disability. “[T]he term ‘change in condition’ means a change in the wage-earning capacity, physical condition, or status of an employee . . . , which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee . . . was last established by award or otherwise.” OCGA § 34-9-104 (a). In cases where a claimant is injured and receives workers’ compensation benefits, but subsequently returns to work and then undergoes a gradual worsening of his condition to the point where he is no longer able to perform his ordinary work, he has undergone a “change in condition.” Hartford Ins. Group v. Stewart, 147 Ga. App. 733, 734 (250 SE2d 184) (1978). See also Central State Hosp. v. James, 147 Ga. App. 308, 310 (248 SE2d 678) (1978); Zurich American Ins. Co. v. Sargent, 147 Ga. App. 672 (250 SE2d 11) (1978). “A claim for a ‘change of condition’ is a claim for additional compensation under the original award.” (Emphasis supplied.) Slattery Assoc. v. Hufstetler, 161 Ga. App. 389, 391 (288 SE2d 654) (1982).

Statutory and case law thus make it clear that a “change in condition” can occur only when the claimant has previously received benefits for a compensable job-related injury. OCGA § 34-9-104 (a); Central State Hosp. v. James, supra; Hartford Ins. Group v. Stewart, supra; Hartford Accident &c. Co. v. Troglin, 148 Ga. App. 715 (252 SE2d 213) (1979); Zurich American Ins. Co. v. Sargent, supra. Because claimant in the instant case never received workers’ compensation benefits for his original on-the-job injury, then, by definition, he cannot have undergone a “change in condition,” and the administrative law judge’s finding that Babyak had sustained a “change in condition” is erroneous as a matter of law.

An initial claim for compensation filed within one year of the occurrence of an original job-related incident of which the employer has received timely notification is properly classified as an “accident.” Dairymen, Inc. v. Wood, 162 Ga. App. 430 (291 SE2d 763) (1982). Babyak’s injury, duly reported to the employer, occurred in March 1985, when Northbrook was the employer’s workers’ compensation carrier. Therefore, the result is the same, and we affirm on the principle of “right for any reason.”

Decided February 23, 1988

Rehearing denied March 14, 1988

Ann B. Conn, John G. Blackmon, Jr., for appellant.

Michael D. Usry, Jack 0. Morse, for appellees.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


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

text:
    75658.
    BOOTH v. THE STATE.
    (367 SE2d 77)
   Birdsong, Chief Judge.

Appellant, C. D. Booth, was convicted of two charges of incest and one charge of child molestation of his daughter, V. L. B., and of one charge of child molestation of his daughter, T. B. Appellant asserts two enumerated errors. Held:

1. Our review of the trial transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant’s first enumerated error is that the trial court erred in its charge on good character. The court charged the jury “that regardless of whether or not the Defendant has any other defenses, and regardless of whether or not there is any other evidence in the record upon which a reasonable doubt as to his guilt could be based, proof of good character may of itself constitute such a defense in his behalf, and you, the jury, overriding any amount of positive evidence pointing to the guilt of the Defendant may, if you see fit, acquit the Defendant upon a reasonable doubt and proof of good character generated in your mind. . . .” (Emphasis supplied.) This same charge has been held to constitute prejudicial error mandating reversal because it negates the rule that good character of itself may engender a reasonable doubt. Millwood v. State, 174 Ga. App. 113 (329 SE2d 273); see Steele v. State, 181 Ga. App. 695 (2) (353 SE2d 612). Our court in both Millwood and Steele declined to find harmless error. In Millwood, the defendant was convicted of child molestation after having “relied heavily upon proof of his good character as testified to by several witnesses.” Millwood, supra at 113. In Steele, the defendant was convicted of a lesser offense of marijuana possession, and “[e]vidence of defendant’s good character formed the essence of his defense in the case.” Steele, supra at 697.

However, in Loumakis v. State, 179 Ga. App. 294 (346 SE2d 373), our court found that the giving of the Millwood-type instruction constituted only harmless error where character evidence was not defendant’s sole defense, and defendant’s “sole defense was that he was insane.” This court in Loumakis concluded that “since the character evidence was not introduced as a complete defense to the crimes charged, but was only introduced to rebut the presumption of sanity and persuade the jury that the defendant was insane, the erroneous charge did not adversely affect the jury’s deliberations.” Loumakis, supra at 298-299. In Cook v. State, 256 Ga. 808, 811 (353 SE2d 333), the Supreme Court considered the Millwood-type character instruction, in light of its recommendation in Keller v. State, 245 Ga. 522 (265 SE2d 813) that the pattern charge in question be used (after certain modifications not here relevant were made thereto). The Supreme Court noted that in Keller it did not consider a challenge to language found to be erroneous in Millwood, specifically, that the pattern charge requires a finding of both reasonable doubt and good character rather than a finding only of reasonable doubt engendered or occasioned by good character, or caused, or raised, by proof of good character. The Supreme Court concluded that there was no conflict between Millwood and Keller, found that the Millwood-type instruction was erroneous, and proceeded to test the error for prejudice. Cook, supra at 811-812. Although the Supreme Court observed that the defendant Cook “relied heavily upon his good character as a defense,” it found that “[v]iewing the charge as a whole and the evidence presented . . . it is highly probable that the error in the charge as given did not contribute to the verdict” and affirmed the judgment. Id.

Thus we find that the current state of the law is that a Millwoodtype charge, such as was given in this case, constitutes error; however, even when the defendant has relied heavily upon his good character as a defense it is proper to test the error for prejudice using the “highly probable” test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Cook, supra at 811-812.

In this case the appellant’s defense was grounded upon the theory that his two daughters fabricated the allegations made against him in order to live with their mother (from whom appellant was estranged), and that the defendant who was a person of good character would not have committed the crimes of incest and child molestation. Further, although the argument of counsel does not constitute evidence, defense counsel informed the jury that “[appellant] does have good character, and if you really want to know what my case is, that’s it.” Counsel further argued, “but let me tell you something about [appellant] and something all of these character witnesses know. He don’t lie . . . he don’t have to come to Court to lie, ‘cause he’s got a reputation. He’s worked his entire life for it, and if you work your entire life for a reputation and you can’t depend on it when you need it, what good is it?” In rebuttal, the prosecution, pertinently responded to the above portion of appellant’s argument as follows, “[defense counsel] stated that the character witness is his whole case. Well, ladies and gentlemen, I submit to you if that’s his whole case, he’s got a very weak case.” Later, the prosecution, in attempting to minimize any impact that appellant’s character witnesses might have had on the jury argued, “[appellant’s] character evidence, I submit to you, is totally irrelevant.”

Viewing the charge as a whole, the evidence presented to the jury, and the manner in which appellant’s character evidence defense was emphasized in summation, we cannot find that it is highly probable that the error in the character evidence charge did not contribute to the verdict. See Cook v. State, supra; Johnson v. State, supra.

We have carefully considered the views expressed by the dissent, and adhere to our opinion that reversible error has perforce occurred. Contrary to any adverse inference that may be drawn from the tenor of the dissent, we are thoroughly aware of the nature of the charge and the posture of the evidence for both the prosecution and the defense. We find it unnecessary to recount the lurid details revealed by the evidence herein. Suffice it to say, appellant’s sole defense, in essence, was “I did not do these acts because I am a man of proven good character.” In support of this defense, the appellant gave sworn testimony that he did not commit the acts, and introduced in his behalf, in addition to the testimony of his son generally attacking his daughters’ credibility, relevant evidence of his good character. The dissent would have this court supplant the jury by weighing the evidence and resolving issues of witness credibility against the defendant. Such a procedure clearly is beyond the pale of this court’s judicial power. The obligation and authority to weigh the evidence and to determine witness credibility rests with the jury and not with this court. Moore v. State, 255 Ga. 148, 149 (335 SE2d 868) (witness credibility is not for the appellate courts but is a question for the jury under proper instruction from the court); Young v. State, 255 Ga. 143 (1) (335 SE2d 864) (question of witness credibility is for the jury); Johnson v. State, 182 Ga. App. 154, 155 (354 SE2d 858) (weight of the evidence and the credibility of witnesses are jury questions).

Appellee also asserts that the above error was waived by appellant’s failure to make a timely objection to the charge actually given by the judge at trial. The general rule in this state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. OCGA § 5-5-24 (a). The right to raise an erroneous charge on appeal may be lost only in certain specific instances. Lumpkin v. State, 249 Ga. 834 (1) (295 SE2d 86). None of these recognized exceptions is present in this case. In particular, we note that the trial judge did not inquire of appellant’s counsel whether there were any objections to the charges as given. See generally Lumpkin, supra; Harper v. State, 180 Ga. App. 20 (2) (348 SE2d 318); Gaines v. State, 177 Ga. App. 795 (1) (341 SE2d 252). Accordingly, we conclude that appellant did not waive his objection to the good character charge given by the trial court.

3. Appellant’s second enumerated error is that the trial court erred in denying defendant funds for medical assistance, and for funds to bring an important defense witness from out of state (to testify as to whether one of the victims had reported to the witness that the appellant had been sexually abusing the victim and her sister).

As the court offered at trial to authorize normal witness fees for the out-of-state witness (see generally OCGA § 24-10-24), and in view of our disposition of this case, pursuant to the prejudicial error discussed in Division 1 above, we believe that in the event of any rehearing, this issue will be satisfactorily resolved at the trial level. Likewise, we find no need currently to resolve the issue of state-provided medical treatment. See in this respect Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53).

Judgment reversed.

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

Deen, Presiding Judge,

concurring in. part and dissenting in part.

While concurring fully with Division 1 of the majority opinion, I cannot agree with the judgment of reversal in Division 2 and the non-resolution of the issues discussed in Division 3.

1. The trial court did give an erroneous jury charge on good character. However, in Cook v. State, 256 Ga. 808, 811-812 (353 SE2d 333) (1987), the Supreme Court held that even though the same erroneous jury charge on good character had been given, reversal was inappropriate where “[vjiewing the charge as a whole and the evidence presented to the jury, ... it is highly probable that the error in the charge as given did not contribute to the verdict.” In order to apply this “highly probable” test, this court must examine the evidence and set forth the facts of the case, as is done in most other written opinions, even though that evidence is particularly lurid.

The evidence in this case, which the majority opinion declines to discuss, showed that on the evening of April 12, 1985, Booth went into the bedroom of his twelve-year-old daughter, pulled down her shorts, unbuttoned and pulled down his overalls, and then had sexual intercourse with her. Two days later, Booth again went into his daughter’s bedroom, locked the door, pulled his and her pants down, and had sexual intercourse. Booth’s other daughter, who was eleven years old, heard her sister screaming, tried unsuccessfully to get into the bedroom, and finally climbed a ladder, looked into the bedroom window and saw her father having intercourse with her sister. Three days after that, on April 17, 1985, Booth found both daughters in the bathroom preparing to go to school, and he pulled up both girls’ blouses and bras and placed his mouth on their breasts. The above evidence, given by the victimized children, was corroborated by the physical and pelvic examinations performed by a physician later that day, after one of the children reported the molestation to her school teacher. As in some cases a “battered-wife/battered-husband syndrome” may be demonstrated, Johnson v. State, 182 Ga. App. 154 (354 SE2d 858) (1987), the instant case points out a “battered-child syndrome” of mental and physical abuse, as well as incest and child molestation.

I have no hesitation whatsoever in concluding that the evidence of guilt in the instant case was so overwhelming that the erroneous jury charge could not possibly have contributed to the verdict. This application of the “highly probable” test does not invade the jury’s functions of weighing the evidence and determining the credibility of witnesses. The whole point of the “highly probable” analysis, in fact, is that the error under consideration did not affect the jury in its performance of those functions. The majority opinion is wrong in reversing Booth’s conviction and I dissent.

2. Concerning the trial court’s denial of Booth’s motions to have the State pay for a medical examination of Booth for venereal disease and for an airline ticket for an out-of-state witness, all that needs to be said is that the trial court did not abuse its discretion in denying the motions. Baxter v. State, 254 Ga. 538 (2) (331 SE2d 561) (1985).

I am authorized to state that Presiding Judge McMurray joins in this opinion. Judge Beasley joins in this opinion except for concurring in the judgment only as to Division 2.

On Motion for Rehearing.

In arriving at the above decision, the majority carefully applied the high probability test of Johnson v. State, 238 Ga. 59 (230 SE2d 869). But to ensure that the language of our opinion is not taken out of context and misconstrued, we again emphasize that this court has examined the entire trial record. Compare, e.g., Johnson, supra at 61-62 with Thomas v. State, 173 Ga. App. 810 (2) (328 SE2d 422) and Jones v. City of Atlanta, 257 Ga. 727, 739 (363 SE2d 254). Merely because we, the majority, elected not to repeat the facts of this case in our published opinion, but left this task to our esteemed colleagues in dissent, does not mean that we have failed to carefully apply the relevant existing law to the existing facts of this case. To ensure that this issue is resolved forthwith, however, we again apply the “high probability” test, in strict accordance with Johnson, and we adhere to the case disposition reached in our original opinion.

Decided February 23, 1988

Rehearing denied March 14, 1988

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.

Motion for rehearing denied.

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

Deen, Presiding Judge,

dissenting on rehearing.

“[W]e will not hold them in error if justice is shown to have been done and nothing more is relied on to defeat it. Justice in the rough is no less justice than justice de luxe, no more than the diamond is less a diamond because of the matrix from which it is recovered.” Matteson v. City of Eustis, 190 S 558, 559 (Fla. 1939). “Whether justice is administered a la mode or carte blanche is not so material, but it is material that it be administered promptly and effectively.” (Emphasis supplied.) Ponce v. Demos, 31 S2d 58, 59 (Fla. 1947).

It is highly probable that justice was administered in this case at the trial level; therefore, we should affirm.


text:
    76178.
    TRUST COMPANY BANK OF NORTHWEST GEORGIA et al. v. SHAW.
    (367 SE2d 82)
   Deen, Presiding Judge.

This protracted litigation began when the First National Bank of Rome (FNB) (predecessor to the appellant, Trust Company Bank of Northwest Georgia) commenced a dispossessory proceeding against Jack Shaw, d/b/a Shaw’s Furniture Store. Shaw defended on the basis that the leased building was in gross disrepair and that part of the terms of the tenancy had been that no rent would be due until the landlord made repairs. A writ of possession was granted, but the issue of rent due was reserved for jury determination.

Over one year later, Shaw filed a suit against FNB, seeking damages resulting from the failure to repair the building and Shaw’s eviction. FNB moved for summary judgment on the basis that this claim should have been asserted in the dispossessory proceeding as a compulsory counterclaim and thus was barred. The trial court denied the motion and sua sponte consolidated that civil action with the preceding dispossessory action. In an interlocutory appeal, this court affirmed in part and reversed in part, holding that denial of summary judgment was proper, but that Shaw’s claim was a compulsory counterclaim that should have been asserted in the earlier proceeding. However, it still needed to be determined whether the counterclaim could be asserted by amendment, pursuant to OCGA § 9-11-13 (f). Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165 (355 SE2d 99) (1987).

Subsequently, the trial court concluded that the criteria for allowing the counterclaim amendment under OCGA § 9-11-13 (f) were not met, but that in reviewing Shaw’s answer in the dispossessory proceeding the trial court was of the opinion that the answer’s affirmative defenses actually did assert the counterclaim. Since the answer asserted the counterclaim, the trial court allowed the amendment which, under this analysis, merely would add an amount of damages sought. The present interlocutory appeal by the Trust Company Bank followed. Held:

Trust Company Bank contends that in no way did Shaw’s answer in the dispossessory proceeding state a counterclaim, and that the compulsory counterclaim thus was barred, since the criteria of OCGA § 9-11-13 (f) were not met. Review of the pleadings supports that contention.

In the proposed amended counterclaim, Shaw sought to recover $17,463.63 as lost profits, $50,000 for damaged store inventory, $100,000 punitive damages for FNB’s conscious disregard of the consequences of its actions, and attorney fees because of FNB’s stubborn litigiousness. These asserted claims and damages are a far cry from the original, asserted defense that no rent would be due until the landlord made the repairs.

Shaw’s affirmative defense, if proven, would have operated to defeat the dispossessory and the landlord’s recovery of past rentals, but it stated no demand for relief that is characteristic of a counterclaim. “ ‘A counterclaim by its essential nature goes beyond the defensive and sets up an affirmative demand. It follows that it must state the elements of such a demand, and should state a cause of action in favor of the party alleging it against the plaintiff . . . (A)s a matter of good pleading a counterclaim should be complete in itself, and not intermingled with the defenses in the answer . . .’” Metro Chrysler-Plymouth v. Pearce, 121 Ga. App. 835, 841 (175 SE2d 910) (1970). The trial court erred in concluding that Shaw’s defense also constituted a counterclaim that could be amended.

Judgment reversed.

Carley and Sognier, JJ., concur.

Decided March 1, 1988

Rehearing denied March 14, 1988

Robert L. Berry, Jr., Terri S. Patterson, Walter J. Matthews, for appellants.

Wade C. Hoyt III, for appellee.


author: Beasley, Judge.

text:
    75295.
    LEWIS v. THE STATE.
    (367 SE2d 123)
   Beasley, Judge.

Defendant appeals his conviction of cocaine possession with intent to distribute. OCGA § 16-13-30.

By motion for new trial and motion for directed verdict of acquittal, defendant challenged the sufficiency of the evidence, and this is the subject of enumerations of error one and twenty-seven.

Acting upon information gathered from various sources, including two confidential informants, a Glynn County police detective conceived a plan to trap defendant at a time when he was expected to be in possession of cocaine, probably in a black pouch, delivering it from his house to a certain lounge. The plan was put into operation on a Friday night, February 7, 1986. One officer, assigned to watch defendant’s house, radioed a description of the car defendant was driving and that he left shortly after 7:00 p.m. An officer stationed along the anticipated route notified the others that defendant was proceeding along that route. A third officer, as assigned, waited until defendant passed and then, after giving warning of defendant’s imminent approach, followed behind. Two officers were on foot and others were in two vehicles which were to be used to block defendant’s path when he arrived at the place the stop was planned.

When the vehicles blocked the road as defendant approached, he did not stop. Instead, he swerved off the road onto a small dirt side road, remained a few seconds during which the police observed him moving inside the car, then backed up across the road, struck a mailbox, and got stuck in a ditch. The foot officers ran up to defendant’s car and took him into custody. The car was pushed out of the ditch and back across onto the dirt road to get it off the traveled road. Defendant and his car were searched but no contraband was found. A black pouch was discovered on the ground just on the edge of the dirt road where defendant had stopped his car a few minutes earlier. The pouch was located about two feet from the passenger-side tire tracks which defendant’s tires had left when he spun them backing up. This side had been blocked from police view when defendant momentarily stopped the car there. The windows of defendant’s small car were rolled down, but no one saw defendant, who was a large man, toss or drop anything out in the dark. The ground was wet and muddy and the pouch was dry on top but wet on bottom. It was filled with over 50 small plastic packets containing what later analysis established to be cocaine.

1. (a) Defendant contends that this evidence is insufficient to prove beyond a reasonable doubt that he was in possession of the cocaine. There is no direct evidence of defendant’s possession; the issue is simply whether the circumstantial evidence established possession beyond a reasonable doubt.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “The term hypothesis as used refers to such reasonable inferences as are ordinarily drawn by men in the light of their experience in everyday life.” D. O. D. v. State of Ga., 156 Ga. App. 301, 303 (274 SE2d 696) (1980). Whether the circumstances are sufficient to exclude every reasonable hypothesis save accused’s guilt is generally a question for the jury’s determination. Bird v. State, 178 Ga. App. 687, 688 (344 SE2d 468) (1986). However, the jury’s finding may be disturbed when the verdict is unsupportable as a matter of law. Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) (1983).

Our review of the evidence is governed by the principle that it must be taken in a light most favorable to the verdict. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988). On appeal, our review of the evidence is in the context of ascertaining whether the evidence supports the verdict, applying the Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), standard of proof. Lewis v. State, 186 Ga. App. 92 (366 SE2d 305) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

To warrant a finding of possession there must be “some connection between the defendant and the contraband other than spatial proximity. . . . [M]erely having been in the vicinity of contraband does not, without more, establish possession.” Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979).

The state’s hypothesis was that defendant, upon encountering the police road block on his way from home to lounge to deliver cocaine, tried to distance himself from the police and the cocaine as fast and as far as he could. To accomplish this, he attempted to avoid the block by quickly turning into the dirt road, backing up, and fleeing in the opposite direction. To make sure that he was not in possession of the cocaine if his escape was not successful and he was stopped and to lead police away from the cocaine, he slipped it out of the car on the passenger side out of view of the police and furtively let it drop to the ground. His departure was then frustrated by his getting stuck.

Taking into account every reasonable inference drawable by the jury in reaching the verdict, the jury could find that the evidence excludes every other reasonable hypothesis save the one described. The pouch could not have been there for a long time, as it was dry on top although it had been raining earlier and the dirt road was muddy. While the police were waiting at this location for about an hour before defendant’s arrival, no car slowed down or stopped in the vicinity of the place where the pouch was subsequently found shortly after defendant’s presence there. Nor did any person walk in that area. The closest anyone was to the location were two women fifty or sixty yards away. The pouch contained approximately 54 grams of cocaine. It was not hidden but rather was open to view at the edge of a public road.

The circumstances allow the rejection of every reasonable hypothesis that the pouch came to its location by the hands of anyone other than defendant when he, alone, was for a short time in a subcompact car with the window open, knowing he was facing a police block, and the pouch was found minutes later just two feet from where the car had been, in a location which was shielded from police view by the car when it was at that place.

(b) The twenty-eighth enumeration of error complains of the admission into evidence of the black pouch on the grounds that it was. irrelevant and there was an insufficient basis to connect it to defendant.

We have effectively disposed of this issue in the first portion of this division.

2. Defendant contends in his second enumeration that it was error to overrule his motion to quash the indictment because of the unauthorized alteration and amendment of that document. He did not raise this issue by filing a motion prior to indictment as required by USCR 31.1 but rather chose to present it after the jury had been qualified. Thus, the trial court properly refused to consider it.

Moreover, a plea in abatement and not a motion to quash is the proper vehicle for attacking an indictment alleged to have been altered after the grand jury returned it. Owens v. State, 54 Ga. App. 417 (1) (3) (187 SE 890) (1936); Gunn v. State, 10 Ga. App. 819, 821 (2) (74 SE 312) (1912). In addition, absent a contrary evidentiary showing, the presumption is that changes or interlineations on an indictment were made before endorsement by the grand jury. Allen v. State, 123 Ga. 499 (1) (51 SE 506) (1905); Cook v. State, 119 Ga. 108, 110 (2) (46 SE 64) (1903).

3. (a) Enumerations of error three through six complain of the refusal to permit defense counsel to ask a series of questions regarding prospective jurors’ attitudes. Two questions concerned whether a would-be juror would properly apply the reasonable doubt standard. One involved whether a jury member would believe a law enforcement officer in preference to other witnesses or defendant, and the fourth sought to elicit whether anyone had previously served as a juror in a drug case.

It was not error to restrict the questioning in each instance. Henderson v. State, 251 Ga. 398, 400-401 (1) (306 SE2d 645) (1983); High v. Zant, 250 Ga. 693, 696 (4) (300 SE2d 654) (1983); Stack v. State, 234 Ga. 19, 26 (2) (214 SE2d 514) (1975); Boyer v. State, 178 Ga. App. 372, 374 (3) (a) (343 SE2d 146) (1986).

(b) The seventh enumeration contends that the trial court erred in refusing to exclude for cause a juror who stated she might have prejudice in a drug related case. However, the juror answered, in response to specific questions, that she could lay aside any feelings she might have and render a verdict based on the evidence and the charge of the court. The failure to strike her for cause was not error. Ingram v. State, 253 Ga. 622, 630 (2) (323 SE2d 801) (1984); Coleman v. State, 237 Ga. 84, 87 (1) (226 SE2d 911) (1976).

4. Defendant enumerates as error in numbers eleven through twenty-five the refusal to give fifteen requests to charge. The instructions requested were either substantially covered in the charge, Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980), or defendant has failed to establish the charges contained correct and applicable principles of law. Estep v. State, 181 Ga. App. 842, 844 (2) (353 SE2d 913) (1987).

5. The officer who planned the road block said, in explaining his pre-stop preparations: “I tried to figure out a way that we could stop him [defendant] without him getting rid of any of the cocaine, try to confirm that he was going there at night.” Objection was interposed on the grounds that “it’s argumentative and hearsay.” Defendant contends in enumeration eight that what the officer said amounts to an opinion based upon hearsay, but since that was not the ground of trial objection, we do not address it. Farmer v. State, 180 Ga. App. 720, 722 (4) (a) (350 SE2d 583) (1986).

6. In his ninth enumeration defendant contends that a State’s witness intentionally put his character into evidence by answering defendant’s question “do you remember attending a hearing on March 25, 1986, concerning this case?” by in turn querying: “The revocation hearing?” Defense counsel did not immediately object but waited until after the State’s redirect before moving for mistrial out of the jury’s presence.

A motion for mistrial not made contemporaneously with the alleged misconduct renders the motion untimely. Flynn v. State, 255 Ga. 415, 419 (6) (a) (339 SE2d 259) (1986); Anderson v. State, 183 Ga. App. 669, 672 (3) (359 SE2d 688) (1987); Keri v. State, 179 Ga. App. 664, 669 (6) (347 SE2d 236) (1986). Secondly, the reply by the witness was not unresponsive to the question but sought clarification. “Induced error is impermissible.” Chance v. State, 172 Ga. App. 299, 302 (3) (322 SE2d 741) (1984). Thirdly, the nature of the question and answer would not raise an inference that there was another case involving defendant. Nor did it identify defendant as the subject of the revocation hearing. Even references to a mug shot or having seen defendant in court before have been determined not to place defendant’s character in evidence. Knight v. State, 243 Ga. 770, 775 (3) (257 SE2d 182) (1979); Moss v. State, 136 Ga. App. 241, 242 (2) (220 SE2d 761) (1975).

Decided March 14, 1988.

Alan B. Smith, for appellant.

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

7. Error is assigned in the tenth enumeration to a portion of the charge regarding the jury’s role in resolving conflicting testimony by witnesses. No error appears. Defendant argues that the court omitted a part of the law placing a duty on jurors to reconcile conflicts in the evidence so as not to impute perjury to anyone. However, the case cited by defendant contradicts that view and abjures the necessity of requiring the jury to accomplish that aim in favor of merely instructing them to try to do so. Barton v. State, 79 Ga. App. 380, 388 (53 SE2d 707) (1949). Accord Stuckey v. State, 213 Ga. 525, 527 (2) (100 SE2d 189) (1957). Defendant did not request a further charge on reconciling conflicting evidence. If the charge was in error, nevertheless it was harmless.

8. Enumeration twenty-six cites error in a jury instruction that the legality of defendant’s stop was a question for the court and not for the jury. Defendant argues the legality of the stop should have been determined by the jury. But he failed to question the legality of the stop and the subsequent search and seizure by written motion to suppress or by objection or other motion. Under such circumstances, any objection was waived. Turner v. State, 178 Ga. App. 888 (1) (a) (345 SE2d 99) (1986); Dennis v. State, 166 Ga. App. 715, 717 (305 SE2d 443) (1983).

Judgment affirmed.

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


author: Pope, Judge.

text:
    75698.
    HILL v. FORDHAM.
    (367 SE2d 128)
   Pope, Judge.

This case involves a claim for medical (dental) malpractice. In February of 1981 plaintiff Robert H. Fordham visited the office of defendant Robert Hill, D.D.S., for emergency treatment of a toothache. Plaintiff authorized Dr. Hill to extract the remaining five teeth in his lower jaw so he could be fitted with lower dentures. The dentist’s notes for the initial visit indicate that a fully impacted third molar (wisdom tooth) was revealed by x-ray which, according to Dr. Hill’s notes, “may erupt later.” Plaintiff denies he was informed of the presence of this impacted molar and claims he was told all his remaining teeth had been extracted. Plaintiff was fitted with dentures but experienced problems in wearing them. On three or four occasions plaintiff visited Dr. Hill for treatment or adjustments of the dentures. Plaintiff claims Dr. Hill told him his discomfort was caused by bone slivers which naturally result from the extraction of teeth and which could be expected to work their way out of the gum over time. Plaintiff was last treated by Dr. Hill on May 29, 1981. Although plaintiff continued to suffer periodic tenderness and swelling of the gums from wearing his dentures, he sought no further professional treatment for over four and one-half years. On November 12, 1985 plaintiff visited another dentist who diagnosed an erupted and abscessed wisdom tooth. Extraction of the tooth largely relieved plaintiff’s discomfort.

Plaintiff filed this action against defendant on October 24, 1986, five years and four months after he was last treated by defendant. Plaintiff claimed the statute of limitation was tolled by defendant’s fraudulent failure to inform him of the existence of his remaining wisdom tooth and by defendant’s assurances that his condition would resolve itself over time. Defendant moved for summary judgment on the ground that the statute was not tolled and, even if a jury issue was raised in regard to the tolling of the statute of limitation, the complaint would nevertheless be barred by the five-year statute of ultimate repose for medical malpractice actions as enacted by Ga. L. 1985, p. 556, § 1 (OCGA § 9-3-71 (b)). Defendant appeals from the denial of his motion for summary judgment.

1. The threshold issue is whether the two-year statute of limitation for medical malpractice claims was tolled as a matter of law under the facts of this case. We find that an issue of fact remains as to whether Dr. Hill’s alleged failure to inform the plaintiff of the existence of his impacted tooth and the alleged statement concerning plaintiff’s condition were sufficient to toll the statute of limitation.

If this were a case in which plaintiff simply failed to seek medical treatment for his continuing symptoms in reliance on the defendant’s misdiagnosis of his condition as being related to “bone slivers,” the statute of limitation might not be tolled. See Hendrix v. Schrecengost, 183 Ga. App. 201 (358 SE2d 486) (1987); Shved v. Daly, 174 Ga. App. 209 (329 SE2d 536) (1985). However, in this case there is evidence the defendant knew of the existence of the wisdom tooth, the condition which allegedly caused plaintiffs pain and discomfort. Plaintiff claims defendant failed to inform him of the existence of this tooth. Plaintiff further claims he failed to seek further treatment or diagnosis of his condition in reliance on defendant’s statement that his condition was to be expected and would eventually resolve itself. “[A] patient has the right to believe what he is told by his medical doctors about his condition. . . . [The statute of limitation] would not begin to run if the defendant physician had assured him that the injuries which had manifested themselves were only slight or only temporary and assured him that he would eventually be all right, thereby inducing plaintiff to refrain from making any further inquiry into his condition.” Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773-774 (278 SE2d 653) (1981). The same rule applies to dentists and other health care professionals covered by the medical malpractice statute of limitation. Whether defendant knowingly failed to inform plaintiff of his condition and whether plaintiff justifiably relied on defendant’s diagnosis, or failed to exercise ordinary care by neglecting to seek treatment over a four and one-half year period, are proper questions for jury determination and may not be resolved on motion for summary judgment. See Lorentzson v. Rowell, 171 Ga. App. 821 (321 SE2d 341) (1984), rev’d in part on other grounds, 254 Ga. 111 (327 SE2d 221) (1985); Leagan v. Levine, 158 Ga. App. 293 (1) (279 SE2d 741) (1981).

2. Having determined that the statute of limitation was not, as a matter of law, tolled in this case, we next consider whether plaintiff’s action was barred by operation of the statute of ultimate repose for medical malpractice claims, OCGA § 9-3-71 (b). On the date plaintiff was last treated by defendant, May 29,1981, the running of the applicable two-year statute of limitation was calculated from the date the alleged negligent act or omission occurred. Ga. L. 1976, p. 1363, § 1 (OCGA § 9-3-71 (amended 1985)). Subsequent to the last date of treatment, Georgia’s statute of limitation for medical malpractice actions was amended to add a five-year statute of ultimate repose and abrogation. Ga. L. 1985, p. 556, § 1, OCGA § 9-3-71 (b). That statute became effective July 1, 1985. Plaintiff argues the statute should not be applied retrospectively in a case such as this where the cause of action arose before the effective date of the statute.

“A statute of limitation is remedial in nature. The legislature can constitutionally provide for the retrospective application of a remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights.” Jaro, Inc. v. Shields, 123 Ga. App. 391, 392 (181 SE2d 110) (1971). See OCGA § 1-3-5. In the non-codified Section 3 of the 1985 Act amending the statute of limitation, the legislature provided a grace period for existing actions which would otherwise be cut off by the statute in order to save it from the prohibition against retrospective application. “No action for medical malpractice which, prior to July 1, 1985, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act. No action for medical malpractice which would be barred before July 1, 1986, by the provisions of this Act but which would not be so barred by the provisions of Title 9 in force immediately prior to July 1, 1985, shall be barred until July 1, 1986.” Ga. L. 1985, pp. 556, 557, § 3.

In Allrid v. Emory Univ., 249 Ga. 35 (1) (285 SE2d 521) (1982), the Georgia Supreme Court found that a virtually identical one-year grace period included in the 1976 Act, originally setting forth a separate statute of limitation for medical malpractice actions, provided a reasonable time for affected parties to protect their rights, thereby permitting the act to have retrospective application. In Quinn v. Stafford, 257 Ga. 608 (5) (362 SE2d 49) (1987), the Supreme Court interpreted the grace period savings clause of the 1985 Act now before us and found it to be “nonsensical in its application” because that section of the act codified at OCGA § 9-3-71 (a) could not possibly cut short a claim which would otherwise be viable under the previous statute. As the court pointed out, “any medical-malpractice action barred before July 1, 1986, by the 1985 statute of [limitation], requiring medical-malpractice actions to be brought within two years of the injury or death, would necessarily be barred by the 1976 statute, requiring medical-malpractice actions to be brought within two years after the date on which the negligent or wrongful act or omission occurred.” Id. at 611. However, in Quinn, the effect of the statute of ultimate repose, codified at OCGA § 9-3-71 (b), was not at issue as it is in the case now before us. The case sub judice presents just the situation described by the grace period clause of the 1985 Act. Here, plaintiff’s claim would be barred before July 1, 1986 by the 1985 Act but would not be barred by the applicable law in force immediately prior to the effective date of the new act. Therefore, the grace period is meaningful and not “nonsensical in its application” to the facts of this case. The statute of repose may be applied retrospectively because the affected parties are granted a one-year grace period to perfect their rights after enactment of the new statute. Quinn v. Stafford, supra at (8); Allrid v. Emory Univ., supra at (1b).

If the five-year statute of ultimate repose were applied to the facts of this case, the plaintiff would be precluded from bringing, his action. Even if a jury were to find the two-year statute of limitation was tolled until the plaintiff discovered the existence of the tooth upon his visit to the second dentist on November 12,1985, the statute of ultimate repose would still bar his action because “in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” (Emphasis supplied.) OCGA § 9-3-71 (b). Since plaintiff was last treated by defendant on May 29, 1981, the provisions of the 1985 Act would extinguish his action on May 29, 1986. By operation of the uncodified grace period plaintiff was nevertheless allowed until July 1, 1986 to bring his action. This was almost eight months after plaintiff was made aware of his claim by the information provided him by the second dentist on November 12, 1985. Plaintiff did not file his action within the reasonable time provided under the 1985 Act to protect his rights. Therefore, plaintiff’s claim would be barred by operation of the statute of ultimate repose.

However, as noted above, the facts of this case raise an issue for jury determination as to whether plaintiff was deterred from bringing his action by defendant’s alleged fraudulent concealment of the remaining tooth. Fraud by which the plaintiff is debarred or deterred from bringing an action tolls any applicable period of limitation. OCGA § 9-3-96. There is a distinction between a statute of limitation and a statute of ultimate repose. A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. Accord Lamb v. Volkswagenwerk Aktiengesellschaft, 631 FSupp. 1144 (S.D. Fla. 1986). The Georgia statute of limitation for medical malpractice permits an action to be filed within two years after the resulting injury or death. OCGA § 9-3-71 (a). However, the statute of ultimate repose nevertheless precludes an action from being brought more than five years from the date of the alleged negligent act or omission. OCGA § 9-3-71 (b). Therefore, an injury or death is not actionable if it occurs more than five years from the date of treatment. Statutes of ultimate repose have also been enacted to limit the right to recover for injuries from defective products (OCGA § 51-1-11 (b) (2)) and injuries from defective building design or construction (OCGA § 9-3-51). These limitations on liability for injuries occurring after a certain period are based upon reasonable expectations about the useful life of a building or a manufactured product. See Pullum v. Cincinnati, Inc., 476 S2d 657 (Fla. 1985). Similarly, due to the uncertainty of aging, health and intervening events it is reasonable to limit liability for injury or death occurring more than five years from the date of medical treatment. A statute of ultimate repose sets an ultimate limit on which injuries shall be actionable. Therefore, by definition, a statute of ultimate repose cannot be “tolled” to permit actions to be brought for injuries which did not occur until after the statutory period had expired. However, the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud. The statute of ultimate repose should not provide an incentive for a doctor or other medical professional to conceal his or her negligence with the assurance that after five years such fraudulent conduct will insulate him or her from liability. The sun never sets on fraud.

Decided March 14, 1988.

Edmund A. Landau III, for appellant.

Craig A. Webster, for appellee.

Other jurisdictions have held that the doctrine of equitable estoppel precludes a defendant from raising the defense of the statute of ultimate repose where there is evidence of fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit. See Canton Lutheran Church v. Sovik, Mathre, Sathrum & Quanbeck, 507 FSupp. 873 (D.S.D. 1981); Bomba v. W. L. Belvidere, Inc., 579 F2d 1067 (7th Cir. 1978). Likewise, we hold in this case that an issue of fraud remains for jury determination which, if found, would estop the defendant from raising the defense of the statute of ultimate repose. Summary judgment was properly denied.

Judgment affirmed.

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


author: Carley, Judge. Banke, Presiding Judge, Beasley, Judge,

text:
    75720.
    WATTS v. THE STATE.
    (366 SE2d 849)
   Carley, Judge.

In a bench trial, appellant was found guilty of vehicular homicide in the second degree. Appellant appeals from the judgment of conviction and sentence entered on the trial court’s finding of guilt.

1. Appellant enumerates the general grounds.

“It is well established that evidence must be viewed in the light most favorable to the verdict. [Cits.] Applying the test set out in Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)], the reviewing court must consider whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” Rachel v. State, 247 Ga. 130, 132 (274 SE2d 475) (1981). “On appeal from a finding of guilty, the presumption of innocence no longer avails, for the fact [finder has] adversely adjudicated the issue of guilt to the appellant’s contentions after having considered the quantum and quality of the evidence. As an appellate court, we seek to determine only if there is evidence of the requisite degree of certainty to justify and support that determination. Our review is limited to a consideration of the evidence with a view toward approving the . . . findings, considering the evidence adversely to the appellant, and approving that verdict if there is evidence sufficient to convince a rational fact finder beyond reasonable doubt. [Cit.] Considering the sufficiency only and not the weight of the evidence, we are convinced that the [adjudication of guilt] is supported by competent evidence beyond reasonable doubt. [Cit.]” Harris v. State, 166 Ga. App. 689 (305 SE2d 428) (1983). “We ... , do not require certainty or even proof that is persuasive to us. All we require is evidence upon which a rational [fact finder] could reasonably find the material elements of the crime beyond a reasonable doubt. [Cits.] We have no difficulty in concluding that this has been satisfied here.” (Emphasis supplied.) Harden v. State, 164 Ga. App. 59, 60 (296 SE2d 372) (1982).

Based upon the review of the transcript it is clear that “[t]he evidence was sufficient for the trial court, as trier of fact, to find the defendant guilty of the offense charged beyond a reasonable doubt. [Cit.]” Ricks v. State, 184 Ga. App. 428, 429 (361 SE2d 829) (1987). Accordingly, the general grounds are without merit.

2. We have considered appellant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

The defendant in this case was convicted of vehicular homicide in the second degree based on an accusation charging that he had caused the death of another person by what is commonly referred to as “following too close.” More specifically, he was convicted of causing the death of another person, without intending to do so, by violating OCGA § 40-6-49, which provides, in pertinent part, as follows: “(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

The accident occurred at approximately 6:10 p.m. on November 8, 1986. Although no evidence was introduced concerning the road conditions, the traffic citation indicates that the weather was “clear” and the road “dry.” The appellant was driving a 1977 Oldsmobile, and the victim was driving a pickup truck. The appellant testified that he had been stopped behind the truck at a traffic light shortly prior to the accident and that he had then followed the truck as it turned right and proceeded down a four-lane highway, driving at an estimated speed of “around 32 miles per hour” and at an estimated distance from the truck of about three car lengths. It is apparent from other evidence that the collision occurred as the decedent was attempting to make a right turn into a commercial driveway. The appellant described the collision as follows: “[H]e stopped in front of me suddenly. I pulled to the left as hard as I could to try to avoid hitting him, but I caught the right front of my car and the left rear of his truck. The truck went into a spin sideways and then flipped.” Tragically, when the truck flipped over, the decedent’s head was crushed between the cab and the pavement.

The state’s evidence, consisting in its entirety of some photographs of the accident scene and the testimony of two deputy sheriffs who had investigated the collision, was totally consistent with the appellant’s testimony. One of the deputies in fact corroborated the appellant’s testimony concerning the speed at which he had been driving immediately prior to the accident, stating that he had conducted an experiment by accelerating his patrol car as fast as possible from the intersection where the appellant and decedent had been stopped to the point of impact and that he “didn’t get past 35 miles per hour to the point of impact.” A breathalyzer test administered to the appellant subsequent to the accident revealed no trace of alcohol in his bloodstream.

The trial court explained as follows his reasons for finding the appellant guilty of involuntary manslaughter: “Under the evidence in this case there are no skid marks by the leading vehicle, which was driven by [the decedent], and no skid marks by [the appellant]. So, the court cannot assume, or even think, that [the decedent] came to a sudden stop. It could not have happened that way, there were no skid marks. . . . Then there is evidence — and giving [the appellant] the benefit of everything — he traveled 150 ... to 250 feet after impact. And if you look at these pictures, it was a right severe impact. And the court is of the opinion that under the evidence what happened is that he was just right upon the truck, and when [the decedent] decided to turn and slowed down, [the appellant] couldn’t stop and he hit him. By his own testimony, he was able to see him, and if he had been a safe distance behind the vehicle — he would sure have had to have been more than three car lengths behind him, because at 30 miles an hour you travel 44 feet per second, and ... it would take that long to get his foot on the brake before he could ever start braking the vehicle.”

None of these reasons bears up under scrutiny. With respect to the issue of skid marks, there was in fact no evidence to indicate whether or not any skid marks were left at the scene. The only witness questioned on the issue stated that he had not observed the roadway for skid marks and did not know if there were any. Furthermore, it is not at all evident why the absence of skid marks would be inconsistent with the appellant’s account of the accident. Similarly, with respect to the severity of the impact, none of the evidence on this issue was shown to be inconsistent in any way with the appellant’s testimony that he had been travelling at a speed of 32 miles per hour prior to the impact. Finally, there is no evidentiary support for the trial court’s conclusion that a distance of three car lengths is less than a safe and prudent distance at which to follow another vehicle doing 30 miles per hour. The 1987 “Georgia Drivers Manual” published and distributed by the Department of Public Safety in fact recommends precisely such an interval, specifying, under the heading “Following Too Closely” at page 42, that “[o]ne car length for each 10 miles per hour is often used as a guide on dry pavement when visibility is good.”

The trial judge concluded, in effect, that the fact that the appellant had been unable to avoid the collision proved he had been following too closely. I cannot agree. The evidence in this case is at least equally consistent, if not more consistent, with the hypothesis that the accident occurred due to the appellant’s failure to keep his attention properly focused in front of him. (Both deputies testified that the truck’s right blinker had been flashing upon their arrival at the accident scene, while the appellant testified that he had “never seen no blinker lights.”) Of course, the evidence is also consistent with the hypothesis that the decedent decelerated suddenly without advance warning, leaving the appellant with no reasonable opportunity to avoid the collision even in the exercise of due care.

“While we recognize that if there is [a] question of the sufficiency of the circumstantial evidence to support guilt, this is a matter best left to [the factfinder] (cit.), this rule does not apply where the verdict of guilty is unsupportable as a matter of law.” Patterson v. State, 159 Ga. App. 290, 294 (283 SE2d 294) (1981). Finding no evidence in this case which would support a finding that the appellant was in violation of OCGA § 40-6-49,1 would reverse his vehicular homicide conviction.

I am authorized to state that Judge Sognier, Judge Benham and Judge Beasley join in this dissent.

Beasley, Judge,

dissenting.

I concur in the dissent and submit the following factors in further support of it.

It is true that there was some evidence that decedent’s right turn signal was on after the collision occurred, permitting the inference that it was on when the collision occurred, but no evidence as to how soon before or at what distance in advance of decedent’s turn it was activated. It could not have been great, because decedent had just turned onto this road from another at which he had stopped for a red light. The most precise measurement in the record is the investigating officer’s testimony that the distance between the turn from the other road to the point of impact was about equal to that between the courtroom and the tax assessor’s office across the street. Defendant testified that there was no advance indication that decedent was going to stop or make the turn, and that he himself was watching the road and traffic while driving.

Decided March 14, 1988.

James F. Findlay, for appellant.

Sam B. Sibley, Jr., District Attorney, for appellee.

Although a witness gave a statement to the police, the witness was not produced by the State. Nor was any other eyewitness, although the time of day, the place, the number of persons in the photos, and the testimony about traffic indicates that there were some. Neither did the State produce the videotape made by the investigating officers of the scene. There was thus some absent evidence in the State’s case.

The court’s findings were undeniably in part based on no evidence and in part on unsupported inference or deduction from the incomplete evidence produced by the State. A case resting upon inferences made from inferences is insufficient in proof where the inference is too remote. Spruell v. Ga. Automatic Gas &c. Co., 84 Ga. App. 657, 663 (67 SE2d 178) (1951); Georgia R. &c. Co. v. Harris, 1 Ga. App. 714 (57 SE 1076) (1907).

Thus I agree that the evidence which was offered did not support the judgment that, beyond a reasonable doubt, defendant was guilty of following too closely and that this activity caused a homicide. I would not go so far as to say that the evidence pointed to failure of defendant to keep his attention properly focused in front of him.


author: Carley, Judge.

text:
    75500, 75501.
    JONES v. PADGETT; and vice versa.
    (367 SE2d 88)
   Carley, Judge.

Alleging a malicious interference with his business, Carlton Padgett brought suit against Mr. and Mrs. William Jones d/b/a Jones Painting. The case was tried before a jury and a verdict in Padgett’s favor against both Mr. and Mrs. Jones was returned. Judgment was entered on the verdict. As to Mrs. Jones, however, the trial court subsequently granted judgment n.o.v. As to Mr. Jones, the trial court denied his motion for judgment n.o.v. or, in the alternative, for new trial. In Case No. 75500, appellant-defendant Mr. Jones appeals from the judgment entered on the verdict in favor of appellee-plaintiff Padgett. In Case No. 75501, appellant-plaintiff Padgett appeals from the grant of judgment n.o.v. in favor of appellee-defendant Mrs. Jones. The two appeals are hereby consolidated for disposition in this single opinion.

Case No. 75501

1. We turn first to appellant-plaintiff Padgett’s appeal from the grant of judgment n.o.v. in favor of appellee-defendant Mrs. Jones. The trial court granted judgment n.o.v. on the ground that appellant had produced no evidence that appellee had committed any tortious act of her own or that she was vicariously liable for any tortious act committed by her husband. Appellant enumerates this ruling as erroneous.

“ ‘[I]n giving consideration to a motion for judgment notwithstanding the verdict . . . [t]he question for determination is whether or not the evidence demands a verdict for movant [cits.], and if there is no evidence to support the verdict returned, denial of the motion is error. [Cit.]’ [Cit.]” City of Atlanta v. West, 160 Ga. App. 609, 611 (2) (287 SE2d 558) (1981). Our review of the record reveals that there was no evidence produced at trial upon which the jury was authorized to return its verdict against appellee. Accordingly, the trial court did not err in granting her motion for judgment n.o.v.

2. Appellant further enumerates as error the trial court’s denial of his motion for an award of attorney’s fees under OCGA § 9-15-14.

OCGA § 5-6-35 (a) (10) provides that “[a]ppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14” are discretionary appeals which must be brought pursuant to OCGA § 5-6-35. The “awards” which are made discretionary pursuant to OCGA § 5-6-35 (a) (10) are not otherwise limited by an amount of recovery and, therefore, an award which denies attorney’s fees and expenses of litigation to a movant pursuant to OCGA § 9-15-14 is as much discretionary as an award which grants such relief to the movant. Compare City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986), holding that the provision of OCGA § 5-6-35 (a) (6) which renders discretionary only those “[a]ppeals in all actions for damages in which the judgment is $2,500 or less” applies only to actions in which there is a money judgment “of one cent through $2,500.” Accordingly, appellant’s appeal from the order denying attorney’s fees and expenses of litigation must be dismissed for failure to comply with the requirements of OCGA § 5-6-35. See generally Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987).

Case No. 75500

3. Appellant-defendant Mr. Jones enumerates as error the denial of his motion for new trial on the general grounds.

“This state recognizes a cause of action where one maliciously and wrongfully, and with intent to injure, harms the business of another. [Cit.] ‘The act is malicious when the thing done is with the knowledge of the plaintiff’s rights, and with the intent to interfere therewith.’ [Cit.] The essential thing is the intent to cause the result. If the actor does not have this intent, his conduct does not subject him to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other.’ [Cit.]” Bodge v. Salesworld, Inc., 154 Ga. App. 65, 66 (267 SE2d 505) (1980). See also Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 272 (2) (329 SE2d 900) (1985). The evidence which appellee produced at trial did not demand a verdict against appellant. It was, however, sufficient to authorize the jury to find in favor of appellee as to each element of the tort of malicious interference with his business. Therefore, this enumeration is without merit.

4. Asserting that the award of nominal damages returned by the jury was excessive, appellant enumerates as error the entry of judgment on that award.

“ ‘A recovery may be classified as coming under the definition of nominal damages where the violation of a right is shown, substantial damages claimed, and some actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent.’ [Cit.] In such a case the jury’s prerogative of fixing the amount of recovery of damages termed nominal will not be disturbed on appeal, except in extreme cases. [Cits.]” Ponce De Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62) (1977). “[I]n Georgia, the term ‘nominal damages’ is ‘purely relative, and carries with it no suggestion of certainty as to amount. . . .’ [Cit.] Instead of being restricted to a very small amount, the sum awarded as nominal damages may, according to circumstances, ‘vary almost indefinitely.’ [Cit.]” First Fed. Savings &c. Assn. of Atlanta v. White, 168 Ga. App. 516, 517 (3) (309 SE2d 858) (1983). Having reviewed the evidence produced at. trial, we cannot find that the nominal damages which were awarded by the jury are excessive as a matter of law. Accordingly, this enumeration is without merit.

5. Appellant further enumerates as error the trial court’s entry of judgment on the jury’s award of punitive damages. The contention is that this award is without sufficient evidentiary support.

“ To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.’ [Cits.]” Ponce De Leon Condominiums v. DiGirolamo, supra at 189 (1). The evidence produced at trial was sufficient to authorize an award of punitive damages against appellant.

6. During its case-in-chief, appellee called appellant as a witness for the purpose of cross-examination and, thereafter, undertook to impeach him. The trial court’s ruling that it was permissible to impeach appellant is enumerated as error.

OCGA § 24-9-81 provides, in pertinent part: “[I]n the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party ... a witness, with the privilege of subjecting such witness to a thorough and sifting examination and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined.” The trial court did not err in permitting appellee to follow this procedure. While the authorized methods of impeaching witnesses are controlled by statute, once a witness is subject to impeachment, any of the statutorily sanctioned methods may be employed. See generally Krasner v. Lester, 130 Ga. App. 234 (1) (202 SE2d 693) (1973). This enumeration is without merit.

7. The trial court’s denial of two of appellant’s motions for mistrial is enumerated as error.

“ ‘The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. [Cits.] Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.’ [Cit.]” Firestone Tire &c. Co. v. King, 145 Ga. App. 840, 843 (2) (244 SE2d 905) (1978). See also Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109, 112 (6) (316 SE2d 554) (1984). Our review of the record reveals no abuse of discretion by the trial court in denying either of appellant’s motions for mistrial. Accordingly, these enumerations are without merit.

8. The jury instructions which were given by the trial court as to character evidence are enumerated as error. “Appellant failed to make specific [objection] to [this portion] of the jury charge and the grounds therefor when given the opportunity to do so, thus waiving [his] right to raise [it] on appeal. We find no blatant or prejudicial error in the charge and therefore affirm the trial court. [Cits.]” Jeff Goolsby Homes Corp. v. Thomas, 181 Ga. App. 308, 310 (5) (352 SE2d 172) (1986). See also Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (2) (309 SE2d 816) (1983). This enumeration is without merit.

Judgment in Case No. 75500 affirmed. Judgment in Case No. 75501 affirmed as to the grant of judgment n.o.v. in favor of appellee and appeal dismissed as to the denial of appellant’s motion for attorney’s fees and expenses of litigation pursuant to OCGA § 9-15-14.

Decided March 3, 1988

Rehearing denied March 15, 1988.

William F. Braziel, Jr., Robert P. Phillips III, for appellants.

Alton D. Kitchings, for appellee.

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


text:
    75706.
    DAVIS v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (367 SE2d 885)
   Carley, Judge.

Appellant-plaintiff filed suit, alleging that he had been injured while a passenger on a bus operated by appellee-defendant. The case was submitted to the jury under a negligence theory and a no-fault theory. Appellant appeals from the judgment entered on the verdict for the appellee.

Appellant’s only enumerations of error relate to the trial court’s charge to the jury. The sole objection raised by appellant in the trial court was that the charge had been misleading, in that it had indicated to the jury that a finding of appellee’s negligence was a prerequisite to a recovery by appellant on his no-fault claim. In the absence of substantial error harmful as a matter of law, appellate review of all other aspects of the charge has been waived. See generally OCGA § 5-5-24; Hamrick v. Wood, 175 Ga. App. 67 (332 SE2d 367) (1985).

The trial court was presented with the unenviable task of instructing the jury on two separate and distinct theories of recovery. Appellant apparently did not submit any written requests to charge so as to assist the court in formulating the charge. If it is evaluated from the prospective of hindsight and on the basis of isolated extracts, the charge that was given does not appear to be a model of clarity. However, a review of the charge in its entirety reveals that, as to the two theories of recovery, it was not misleading to the jury. Accordingly, the objection raised to the charge in the trial court is not sufficient to authorize reversal of the judgment entered on the verdict. See Mathis v. Mangum, 166 Ga. App. 415 (304 SE2d 520) (1983). See also Howell v. State, 157 Ga. App. 451 (6, 7) (278 SE2d 43) (1981). There being no substantial error as to any other portion of the charge as given, the judgment must be affirmed.

Judgment affirmed.

Banke, P. J., and Benham, J., concur in the judgment only.

Decided March 1, 1988

Rehearing denied March 15, 1988.

Gordon L. Joyner, for appellant.

Clifford E. Hardwick IV, Debra C. Bracewell, for appellee.