author: Pope, Judge. Benham, Judge,

text:
    76380.
    THE STATE v. RICHARDSON.
    (370 SE2d 762)
   Pope, Judge.

Appellee Leoncer Albert Richardson was indicted on the charge of trafficking in cocaine. The State brings this appeal from the lower court’s grant of appellee’s motion to suppress evidence.

The evidence adduced at the suppression hearing, which consisted entirely of the testimony of Special Agent Gill Lalumiere of the Georgia Bureau of Investigation, established the following: On July 1, 1987 Agent Lalumiere was awaiting the arrival of Delta Flight No. 117, from Miami, Florida, a known drug source city, when he and his partner observed the appellee deplane. Appellee was attired in gym shorts and a mesh shirt that hung loosely over part of his shorts and was carrying a small blue tote bag. Agent Lalumiere testified that his attention was first drawn to appellee because he was clutching the tote bag to his body instead of carrying it by the handles. Lalumiere further testified that the bag did not appear to be full, and that this fact, coupled with the manner in which appellee was carrying the bag, indicated to Lalumiere the possibility of drug trafficking.

According to the testimony of Agent Lalumiere, appellee then briefly looked around and started walking towards the escalators that led to the terminal baggage claim area. Agent Lalumiere and his partner followed appellee down the escalator. At the bottom of the escalator Lalumiere approached appellee, identified himself verbally, displayed his credentials and asked appellee if he could speak with him for a moment. Lalumiere also asked appellee if he would mind moving to the side of the escalator so as not to impede the flow of traffic and appellee complied. Agent Lalumiere’s partner remained approximately three feet away to avoid crowding appellee.

Agent Lalumiere asked to see appellee’s airline ticket, which was a one-way cash ticket from Miami to Savannah, Georgia via Atlanta. The officer also ascertained that appellee had no checked luggage. Agent Lalumiere returned appellee’s ticket and requested additional identification, which appellee produced after unzipping his tote bag and “very carefully” reaching into it, so as to give the appearance that he did not want anybody to see inside the bag. Although both appellee’s driver’s license and health department card matched the name on his ticket, Agent Lalumiere said his suspicions were further aroused because of the careful manner in which appellee handled the tote bag. Lalumiere testified that he then informed appellee that they were narcotics officers looking for narcotics and related items coming through the airport and requested appellee’s cooperation by asking him to allow them to search his bag and person. Lalumiere said that appellee responded “Yes, sure” and Lalumiere unzipped the bag, which was still on the floor where appellee had placed it, and searched the bag finding no evidence of contraband. Lalumiere said he stood up and thanked appellee for his cooperation and “almost simultaneously” looked at his partner who was pointing at appellee’s abdomen. Lalumiere stated he looked in the direction his partner was pointing and noticed an “obvious bulge” in appellee’s shorts. Officer Lalumiere asked appellee to identify the bulge and appellee stated that it was his penis. Lalumiere testified that contemporaneously with this statement he reached out and touched the bulge, which he described as “pliable.” He stated that “[o]n several previous experiences, I have felt and retrieved from defendants cocaine that had exactly the same almost feel.” Lalumiere described the bulge as having little lumps in it, which looked similar to knuckles protruding from a fist. Lalumiere said that both the location and shape of the bulge indicated to him that it was not the appellee’s penis. On the basis of this information, Lalumiere placed appellee under arrest and retrieved the bulge, which was later identified as cocaine, from appellee’s shorts. Lalumiere stated that prior to the time he placed appellee under arrest, he never manifested to appellee that he was not free to leave and walk away should he so choose. Moreover, Lalumiere stated that he never threatened or coerced appellee, and that both he and his partner were casually dressed and displayed no visible weapons.

“The three tiers of inquiry concerning . . . police-citizen contact [such as in the case at bar] adopted by our Supreme Court are: (1) Was the initial interview conducted in a non-coercive manner (i.e., without display of weapons or in the absence of peremptory or commanding tone of voice), and did that interview intrude upon any protections afforded to an airline passenger by the Fourth Amendment; (2) Was the beginning seizure brief in time and solely for investigative purposes based upon an articulable suspicion; or (3) Was the seizure of a nature reasonably to cause the seized party to believe that his freedom was removed and in such a case were there articulable facts sufficient to raise probable cause that a crime was in progress, i.e., was there probable cause for a full scale arrest? Yocham v. State, 165 Ga. App. 650 (302 SE2d 390) [(1983)].” Aguero v. State, 169 Ga. App. 462, 464 (313 SE2d 735) (1984).

In the present case, there is no evidence that appellee was “seized” prior to the time Agent Lalumiere actually placed him under arrest. “ ‘The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon [appellee] to their presence, but instead approached (him) and identified themselves as [law enforcement] agents. They requested, but did not demand to see the [appellee’s] identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The [appellee] was not seized simply by reason of the fact that the agents approached (him), asked if (he) would show them (his) ticket and identification, and posed to (him) a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official ... In short, nothing in the record suggests that the [appellee] had any objective reason to believe that (he) was not free to end the conversation . . . and proceed on (his) way . . .’ United States v. Mendenhall, 446 U. S. 544, 555 (100 SC 1870, 64 LE2d 497) (1980). Accord State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981); Allen v. State, 172 Ga. App. 663 (1) (324 SE2d 521) (1984); Berry v. State, 163 Ga. App. 705 (3) (294 SE2d 562) (1982).” Ullrich v. State, 176 Ga. App. 260, 261-262 (335 SE2d 490) (1985). See also Voight v. State, 169 Ga. App. 653 (314 SE2d 487) (1984); McAdoo v. State, 164 Ga. App. 23 (1) (295 SE2d 114) (1982); McShan v. State, 155 Ga. App. 518 (271 SE2d 659) (1980).

Remaining, however, is the question of whether the subsequent arrest and seizure of appellee was based on probable cause. “An arrest and search, legal under federal law, are legal under state law. Durden v. State, 250 Ga. 325, 327 (297 SE2d 237) (1982). The constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [appellee] had committed or was committing an offense. Beck v. Ohio, 379 U. S. 89, 91 (85 SE 223, 13 LE2d 142) (1964). In dealing with probable cause ... as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (Cit.) Sanders v. State, 235 Ga. 425, 440 (219 SE2d 768) (1975).” (Punctuation omitted.) Allen v. State, 172 Ga. App., supra at 667.

In the present case, the evidence shows that at the time the appellee was placed under arrest, Lalumiere had ascertained that appellee exhibited characteristics of the drug courier profile, the most notable of which were that appellee was traveling on a one-way cash ticket from a known drug source city with little or no luggage. At the time of the arrest Agent Lalumiere also knew that appellee had an abnormal bulge in his abdominal region which neither looked nor felt like what appellee stated it to be. Moreover, Agent Lalumiere’s tactile impression of the bulge was consistent with his prior experience concerning how cocaine feels. “Based upon the foregoing, we find that [Lalumiere] had probable cause to believe that [appellee] was committing an offense involving concealed contraband and to place [appellee] under arrest. It was not necessary for [Lalumiere] to know the exact nature of the suspicious bulge for probable cause to exist. ‘Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. (Cits.)’ Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975). See also Aguero, [supra].” Allen, supra at 667. It is well established that a valid search may be made incident to a legal arrest when supported by probable cause. See, e.g., Griffin v. State, 180 Ga. App. 189 (348 SE2d 577) (1986); State v. Gilchrist, 174 Ga. App. 499 (2) (330 SE2d 430) (1985); Moran v. State, 170 Ga. App. 837 (1) (318 SE2d 716) (1984). Consequently, the seizure of the contraband in the present case may be viewed as the fruit of a lawful search incident to arrest. It follows, therefore, that the trial court erred in granting appellee’s motion to suppress.

Judgment reversed.

McMurray, P. J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

I write separately to emphasize that my concurrence is not based merely on the existence of probable cause for the stop, but on the officer’s testimony that appellant freely gave his consent to the search of his luggage and his person prior to the actual search, and that this consent was not withdrawn prior to discovery of the unusual bulge. No evidence was offered to contest the officer’s version of the incident; therefore, the search must be viewed as consensual and not violative of appellant’s Fourth Amendment rights. Scott v. State, 253 Ga. 147 (317 SE2d 830) (1984).

Decided May 27, 1988

Rehearing denied June 8, 1988

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

John A. Beall IV, Jerry L. Patrick, Jr., for appellee.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76381.
    SAYLORS v. EMORY UNIVERSITY.
    (370 SE2d 625)
   Banke, Presiding Judge.

Saylors appeals the trial court’s order dismissing his original notice of appeal pursuant to OCGA § 5-6-48 (c), based on an unreasonable and inexcusable delay in the transmission of the record to the appellate court resulting from his failure to pay the costs of preparing the record in a timely manner.

In 1983, Saylors sued the appellee, Emory University d/b/a Emory University Hospital, for malicious use and abuse of process based on Emory’s conduct in causing his wages to be garnished. The case was tried before a jury in 1985, resulting in a verdict in favor of Saylors in the amount of $269.40. Believing the verdict to be insufficient, Saylors thereafter filed a motion for new trial, which was granted. Emory subsequently appealed that order to this court; but, in an unpublished opinion, that appeal was dismissed due to Emory’s failure to file an enumeration of errors and brief after having been ordered to do so by the court. Emory Univ. v. Saylors (Case No. 72271, decided March 18, 1986).

Upon the return of the case to the lower court, Emory moved for and was granted summary judgment. Saylors filed a notice of appeal from that order on April 15, 1987. A bill for the costs of preparing the record, in the amount of $541 was received by Saylors’ counsel on May 1, 1987. Approximately 45 days later, Saylors filed a cursory affidavit claiming indigency. Emory responded with a motion to dismiss the appeal, challenging the truthfulness of the affidavit and asserting that it was not timely filed. Saylors then filed a second affidavit of indigency and a brief in opposition to the motion to dismiss. Following a hearing, the trial court determined that Saylors was not indigent within the meaning of OCGA § 5-6-47 (a) but extended the time to pay costs until October 23, 1987, further specifying that if costs were not paid by that date, Emory could renew its motion to dismiss the appeal. On October 29, 1987, Emory filed a second motion to dismiss based on Saylors’ continued failure to pay costs. That motion was granted by the trial court on November 2, 1987, and this appeal followed. Held:

1. The appellant challenges the trial court’s finding that he was not indigent within the meaning of OCGA § 5-6-47 (a). While acknowledging that, pursuant to OCGA § 5-6-47 (b) and OCGA § 9-15-2 (a) (2), the trial court’s findings concerning indigency are not reviewable in cases where the affidavit of indigency has been traversed by an opposing affidavit, the appellant points out that no such language is contained in OCGA § 9-15-2 (b), which is applicable when the affidavit of indigency is not traversed, and argues that because no opposing affidavit was filed by the appellee in the present case, the trial court’s findings with respect to his ability to pay costs are subject to review by this court.

We can conceive of no logical reason why an appellee’s failure to submit an opposing affidavit as part of its challenge to an appellant’s affidavit of indigency should have any bearing on the reviewability of the trial court’s resolution of the issue. Such a distinction is certainly not supported by the case law. See D’Zesati v. Poole, 174 Ga. App. 142 (329 SE2d 280) (1985); Columbus Foundries v. Moore, 175 Ga. App. 387, 390 (333 SE2d 212) (1985). In any event, even assuming the reviewability of the trial court’s findings on the indigency issue, we hold that those findings were supported by evidence, with the result that no abuse of discretion occurred. See generally Gay v. City of Rome, 157 Ga. App. 368 (1) (277 SE2d 741) (1981); Young v. Climatrol &c. Corp., 237 Ga. 53 (226 SE2d 737) (1976).

2. We reject the appellant’s contention that he was denied due process of law by the trial court’s action in issuing the dismissal order only four days after the appellee had renewed its motion to dismiss, without giving him an opportunity to respond. The appellant undisputedly was provided with ample notice following the filing of the original motion to dismiss, and an evidentiary hearing was thereafter conducted in full compliance with OCGA § 5-6-48 (c). In its initial order, the trial court made an express finding that the appellant was not indigent and that the delay in paying costs was consequently unreasonable and inexcusable. Although a dismissal of the appeal would have been authorized at that time, the trial court elected to extend the time for payment so as to give the appellant an additional opportunity to avoid a dismissal. Only as a result of the appellant’s continued failure to pay costs did the trial court ultimately dismiss the appeal. As the appellant has advanced no reason why a second hearing might have led to a different result, we hold that the failure to hold such a hearing establishes no ground for reversal of the dismissal order.

Decided May 5, 1988

Rehearing denied June 8, 1988

Curtis R. Richardson, for appellant.

J. M. Hudgins IV, T. Jeffrey Lehman, for appellee.

Judgment affirmed.

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


author: Benham, Judge.

text:
    75503.
    GILDER v. DAVIS.
    (370 SE2d 650)
   Benham, Judge.

The controlling issue in this case is whether the plaintiff produced sufficient evidence of fraud to survive a motion for directed verdict. We find that he did not, and reverse the judgment entered on a jury verdict in his favor.

In the single count of the complaint which was sent to the jury, plaintiff W. E. Gilder alleged that his brother, defendant Holland F. Gilder, persuaded him, while he was ill, to deliver personalty to defendant for safeguarding during plaintiff’s illness. Plaintiff then alleged that defendant knew his representations were false when they were made, that defendant had no intention of returning the property to plaintiff after he recovered his health, and that defendant still retained some of the property.

The original parties to this action are dead; their representatives have been substituted for them. The executor of plaintiff’s estate was the only witness for plaintiff. He testified, in the portion of his testimony pertinent to the issue in this appeal, that plaintiff’s intent was to let defendant take care of plaintiff’s property during his illness; that plaintiff understood he was signing a document giving defendant authority to safeguard plaintiff’s property; that plaintiff later discovered the document he signed was a transfer of title to the property to defendant; and that the witness was unaware of any consideration for the transfer.

The count of the complaint at issue here stated a claim for fraud. Essential elements of proof in an action for fraud in Georgia include a false representation by the defendant on which the plaintiff relied. Tri-Eastern Petroleum Corp. v. Glenn’s Super Gas, 178 Ga. App. 144 (1) (342 SE2d 346) (1986). The proof offered by plaintiff in this case did not make such a showing. Plaintiff’s intent and understanding were shown, but there was a complete absence of evidence that defendant made any representation, false or otherwise, which led plaintiff to the understanding that defendant would safeguard and return plaintiff’s property, or which led plaintiff to the act of signing a document transferring property to defendant. Plaintiff having failed to prove an essential element of his cause of action, the trial court erred in denying defendant’s motion for a directed verdict. Id.

Decided June 8, 1988.

James G. Maddox, for appellant.

W. W. Hemingway, Tim D. Hemingway, for appellee.

Our ruling that the denial of a directed verdict was error renders moot the remaining enumeration of error.

Judgment reversed.

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


author: Carley, Judge.

text:
    76126.
    CARPET TRANSPORT, INC. et al. v. PITTMAN.
    (370 SE2d 651)
   Carley, Judge.

On January 24, 1986, appellee-employee injured his shoulder. The injury occurred while he was on the premises of appellant-employer Carpet Transport, Inc. The employee immediately reported to his supervisor that he had suffered a work-related injury and he was taken to a local hospital for treatment. The employee was thereafter afforded workers’ compensation income benefits from the appellant-insurer on or before such benefits would otherwise have become payable pursuant to OCGA § 34-9-221 (b). Income benefits were then suspended when, on February 17, 1986, the employee returned to work. In April of 1986, the employee was discharged from his employment for reasons having nothing to do with his injury.

Thereafter, the employee requested a hearing, asserting his entitlement to a resumption of income benefits based upon a change for the worse in his economic condition. The employer/insurer then filed notice that the claim for workers’ compensation benefits would be controverted, on the ground that the employee’s January 1986 injury had not arisen out of and in the course of his employment but had resulted from “horseplay” with a co-worker. The employer/insurer also asserted that the evidence which supported their notice to controvert on this ground was “newly discovered,” because it had been brought to their attention only seven days previously.

In August of 1986, the administrative law judge (ALJ) conducted a hearing as to the issue of the employee’s entitlement to a resumption of income benefits based upon his January 1986 injury. The ALJ entered an award wherein the following finding of fact was made: “The employer/insurer had paid the [employee’s] medical bills and temporary total benefits and now contend that they have a right to controvert the claim based on newly discovered evidence. I find this contention to be groundless in that the supervisor of the [employee] knew all the facts and circumstances of the [employee’s] injury on the date of the original injury (January 24, 1986). Therefore, the employer/insurer had ample opportunity to investigate the [employee’s] claim.” Having thus found that the employer’s/insurer’s notice to controvert was not based upon “newly discovered evidence,” the ALJ proceeded to find that the employee had in fact suffered a worsening of his economic condition attributable to his on-the-job injury. Accordingly, the ALJ awarded the employee a resumption of income benefits based upon his January 1986 injury.

The employer/insurer appealed the award to the Full Board, which adopted the award of the ALJ. The employer/insurer appealed the award of the Full Board to the superior court, which affirmed the award. The employer/insurer then filed an application to this court for a discretionary appeal from the superior court’s affirmance of the Full Board’s award. This appeal results from our grant of the employer/insurer’s application for a discretionary appeal.

1. The employer/insurer urge that the superior court should have reversed the employee’s award on the ground that the Full Board had erroneously failed to consider the merits of their notice to controvert.

OCGA § 34-9-221 contemplates three different time periods within which an employer/insurer can file a notice to controvert liability for workers’ compensation benefits. Subsection (d) of OCGA § 34-9-221 provides that the employer’s/insurer’s initial notice to controvert is to be filed “on or before the twenty-first day after knowledge of the alleged injury or death. . . .” However, this provision is clearly inapplicable in the case at bar, because the employer/insurer did not file such a timely initial notice to controvert liability but, instead, voluntarily initiated payment of benefits to the employee without an award. When, as in the present case, the payment of benefits has already been initiated without an award, it is not subsection (d) but subsection (h) of OCGA § 34-9-221 that is the applicable provision. Within that single provision, two different time periods for the employer/insurer to controvert are established. “Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.” OCGA § 34-9-221 (h). Thus, notwithstanding subsection (d) of OCGA § 34-9-221, the employer/insurer is nevertheless entitled to controvert, for any reason, if the notice is filed within 60 days of the due date of the first voluntary payment of compensation. However, this portion of OCGA § 34-9-221 (h) is also inapplicable in the case at bar, because the employer/insurer did not file a timely notice to controvert within 60 days of the due date of their first voluntary payment of compensation to the employee. What is the applicable provision here is that portion of OCGA § 34-9-221 (h) which provides that, after the passage of 60 days from the due date of the first payment of compensation made without an award, the employer/insurer “shall not” controvert liability “except upon the grounds of change in condition or newly discovered evidence. . . .” In the present case, the ALJ found that the employer’s/insurer’s evidence as to their lack of liability was not “newly discovered” and that they had, therefore, shown no right to have consideration given to the merits of their notice to controvert the employee’s claim. It is this finding that the employer/insurer urge was erroneously affirmed by the superior court.

There is authority for the employer’s/insurer’s proposition that, notwithstanding the literal language of the applicable portion of OCGA § 34-9-221 (h), a viable notice to controvert liability based upon any and all grounds can be filed more than 60 days from the date that the first voluntary payment of compensation was made to an employee. “We are of the opinion that an interpretation of subsection (h) of [OCGA § 34-9-221] as a statute of limitation ... is inconsistent with the statutory scheme of OCGA § 34-9-221 as interpreted by this court. We hold, therefore, that subsection (h) is [not] a statute of limitation. . . . [U]nder the interpretation [of OCGA § 34-9-221 (h) as establishing a 60-day statute of limitation, the employer/insurer would be] required to pay a claim which [might] be without merit solely because [they were] several days late in filing a notice to controvert. We find that inequity to be squarely within the abhorrence of penalties and forfeitures. . . .” Cagle’s, Inc. v. Kitchens, 172 Ga. App. 698, 699-700 (324 SE2d 550) (1984). There is, however, also authority for the contrary proposition that the applicable portion of OCGA § 34-9-221 (h) does, in effect, establish a 60-day statute of limitation, the running of which will serve to preclude the employer/insurer from filing a notice to controvert except on the limited grounds of change of condition or newly discovered evidence. See Spiva v. Union County, 172 Ga. App. 151 (322 SE2d 351) (1984). “These cases simply cannot be read consistently. The court in Spiva [c. Union County, supra,] went to considerable lengths to find ‘newly discovered evidence’ in order to comply with the provisions of subsection (h) [of OCGA § 34-9-221]. ... In [Cagle’s, Inc. v.] Kitchens, [supra,] the Court readily acknowledged that there was no newly discovered evidence in the case nor was there any change in condition so [the Cagle’s, Inc. decision] dispensed with subsection (h) altogether.” Hiers & Potter, Ga. Workers’ Compensation-Law & Practice, § 20-5, p. 93 (1986 Supp.). Accordingly, the issue which we must now decide is whether Cagle’s, Inc. is correct and OCGA § 34-9-221 (h) should be dispensed with or whether Spiua is correct and that statutory provision does effectively create a 60-day statute of limitation whereby, except on the limited grounds of change of condition or newly discovered evidence, the employer/insurer cannot controvert liability as to any injury for which benefits have already been voluntarily paid.

The interpretation given to subsection (h) of OCGA § 34-9-221 in Cagle’s, Inc. v. Kitchens, supra, was based upon the interpretation which was given to subsection (d) of that statute in Raines & Milam v. Milam, 161 Ga. App. 860, 862 (289 SE2d 785) (1982): “We agree . . . that the word ‘shall’ in [OCGA § 34-9-221 (d)] makes it mandatory that such notice [to controvert] be filed. We do not agree, however, that failure to file such notice within 21 days acts as an estoppel preventing an employer and insurer from controverting a claim for compensation. The General Assembly has provided other sanctions against the failure to so file in [OCGA § 34-9-108 (b) (2)].” Although the provisions are similar, it is clear that subsection (d) and subsection (h) of OCGA § 34-9-221 are intended to accomplish different goals. Subsection (d) addresses the right of the employer/insurer to file an initial notice to controvert, shortly after the allegedly compensable injury has occurred. The intent is obviously to encourage a prompt investigation by the employer/insurer and an expeditious determination on their part as to whether or not to undertake the voluntary payment of benefits. Thus, those employers/insurers who are being asked to pay invalid claims can controvert and thereby avoid being subjected to an unwarranted financial exposure, whereas those employees who do have valid claims will not experience an unwarranted delay in their receipt of compensation. There is, however, nothing within the actual language of OCGA § 34-9-221 (d) itself which would indicate a legislative intent that the employer’s/insurer’s act of failing to file a timely initial notice to controvert should be penalized as creating an estoppel to their subsequent filing of a notice to controvert the compensability of the claim. “There is no parallel to such a harsh forfeiture interpretation in either state or federal civil procedure.” Hiers & Potter, Ga. Workers’ Compensation-Law & Practice, § 20-5, p. 210, fn. 5 (1981 ed.). “ ‘ “Forfeitures are not favored, and courts incline against them. When a statute may be construed so as to give a penalty, and also so as to withhold the penalty, it will be given the latter construction.” ’ [Cit.] This is particularly true where, as here, adequate sanctions are provided for enforcement of the mandatory provisions of [OCGA § 34-9-221].” Raines & Milam v. Milam, supra at 862-863. Accordingly, it is clear that OCGA § 34-9-221 (d) “is not a statute of limitation, a statutory estoppel or bar to contest issues but one of sanctions.” Southern Bell Tel. &c. Co. v. Hodges, 164 Ga. App. 757, 759 (1) (298 SE2d 570) (1982).

OCGA § 34-9-221 (h), however, stands on an entirely different footing. By its terms, that provision applies in those circumstances wherein the employer/insurer have already made the decision to initiate the voluntary payment of compensation and have thereby at least implicitly acknowledged the underlying compensability of the employee’s injury. Entirely unlike subsection (d), subsection (h) of OCGA § 34-9-221 does not mandate that the employer/insurer “shall” file a notice within a specified time period “if’ they wish to controvert the compensability of an injury. Instead, subsection (h) provides that “except” on specified grounds, “the right to compensation shall not be controverted” after the passage of 60 days from the due date of the first payment of compensation. (Emphasis supplied.) Thus, subsection (h) is clearly intended to provide some form of protection to the employee’s right to continued receipt of the compensation that he is or has been voluntarily paid and is not merely intended to encourage the employer’s/insurer’s prompt investigation and initiation of compensation. Accordingly, those employers/insurers who have not filed a timely initial notice to controvert pursuant to OCGA § 34-9-221 (d), but who have initiated voluntary payment of compensation are given by subsection (h) an additional 60-day period within which they can controvert, on any ground whatsoever, the employee’s right to those benefits. See Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648 (1) (324 SE2d 194) (1984). After that 60-day period has run, however, the employer/insurer “shall not” controvert the employee’s right to compensation “except”on the specified grounds. Thus, OCGA § 34-9-221 (h) would effectively serve as a 60-day statute of limitation, the running of which protects the employee’s right to continued compensation from attack by the employer’s/insurer’s “except” on the specified grounds.

As the decision in Cagle’s, Inc. notes, the interpretation of subsection (h) of OCGA § 34-9-221 as a 60-day statute of limitation could result in the employer’s/insurer’s forfeiture of their right to assert a valid basis for controverting a claim and, consequently, in affording an employee the right to continued compensation to which he is not entitled. However, it is also true that, even though forfeitures are not favored, “ ‘ “[a] legislative body should always be presumed to mean something by the passage of an Act” and an Act should not be so construed as to render it “absolutely meaningless.” [Cits.]’ [Cit.]” Buice v. Dixon, 223 Ga. 645, 646-647 (157 SE2d 481) (1967). Any construction of OCGA § 34-9-221 (h) as other than a 60-day statute of limitation upon the employer’s/insurer’s right to controvert, except on the specified grounds, would render the provision meaningless. As the commentators have noted, the decision in Cagle’s, Inc. v. Kitchens, supra, had this effect. “This decision simply delete [d] subsection (h) from the Code.” Hiers & Potter, Ga. Workers’ Compensation-Law & Practice, § 20-5, p. 93 (1986 Supp.). Moreover, a construction of OCGA § 34-9-221 (h) as a 60-day statute of limitation would not leave the employer/insurer entirely defenseless against continued payment of unwarranted compensation. It would merely limit those grounds upon which the employer/insurer is entitled to controvert the continued payment. See Spiva v. Union County, supra. Accordingly, diligent employers/insurers are fully protected under the interpretation of OCGA § 34-9-221 (h) as a 60-day statute of limitation. Therefore, we overrule Cagle’s, Inc. v. Kitchens, supra, insofar as it holds that OCGA § 34-9-221 (h) is not a 60-day statute of limitation, the running of which results in a limitation as to the grounds upon which the employer/insurer can rely to controvert continued compensation. It necessarily follows that we also reaffirm our holding in Spiva v. Union County, supra.

2. The ultimate issue to be resolved in the present case thus becomes whether the ALJ’s finding that the employer/insurer had failed to support their notice to controvert by newly discovered evidence was erroneous. As indicated previously, it was upon the employer’s/ insurer’s lack of diligence that the ALJ predicated his refusal to consider their allegedly newly discovered evidence and to address the merits of their notice to controvert. However, the record does not indicate that the employer/insurer failed to exercise diligence in discovering evidence upon which they based their notice to controvert. Compare Anderson v. Araguel, Sanders, Carter & Swain, 163 Ga. App. 610 (295 SE2d 750) (1982). Instead, the record indicates that the employer/insurer based their failure of earlier discovery of the evidence upon their having been thwarted by the original misrepresentation of the employee himself and by the subsequent failure of certain of his co-employees to disclose that there existed a questionable basis for the compensability of his injury. See Spiva v. Union County, supra. That the employee himself and his co-workers had knowledge of the circumstances surrounding the injury does not necessarily show that the employer/insurer were not diligent in failing to have discovered the evidence earlier. “Even though ‘(t)he insurer is the alter ego of the employer and what the employer knows the insurer knows as a matter of law . . . ([cit.]), this maxim can have no application where the employer [is himself misled into] mislead [ing] the insurer and [the employer thereby] effectively misdirects the insurer so that it would not ascertain the actual facts before the [running of the 60-day period contemplated by OCGA § 34-9-221 (h)].’ ” Spiva v. Union County, supra at 153 (2).

The concept of “newly discovered evidence” in the context of workers’ compensation is not totally analogous to that concept as it applies in other contexts. “There are obviously some distinctions which must necessarily be made in applying this [‘newly discovered evidence’] standard to the procedural context of a workers’ compensation claim.” Hiers & Potter, Ga. Workers’ Compensation-Law & Practice, § 20-5, p. 209 (1981 ed.). Among those distinctions is that there must be a balancing between the prompt and voluntary initiation of the payment of workers’ compensation benefit to an employee, on the one hand, and the availability, on the other hand, of an opportunity for the employer/insurer to base a notice to controvert upon evidence which the employer/insurer was unable to discover earlier as a result of the employee’s own misrepresentation. See Spiva v. Union County, supra.

Decided June 8, 1988.

James T. Fordham, R. Kevin Silvey, for appellants.

Michael R. Eddings, for appellee.

Accordingly, the superior court erred in failing to reverse the employee’s award and to remand the claim for the Full Board’s consideration of the employer’s/insurer’s notice to controvert based upon the merits of the newly discovered evidence. “We have held that the insurer was thwarted in its opportunity prior to [the passage of the 60-day period contemplated by OCGA § 34-9-221 (h)] to discover the evidence supporting its claim that [the employee’s] accident was not suffered while within the scope and course of employment. Thus, the evidence would not reasonably have been discovered in [a] timely fashion by the insurer and constitutes ‘newly discovered evidence.’ ” Spiva v. Union County, supra at 153 (2). In so holding, we do not intimate that, in its reconsideration, the Full Board will be required to accept the employer’s/insurer’s “newly discovered evidence” and to disbelieve the employee’s evidence that his injury was compensable. We hold only that the Full Board is required to consider the “newly discovered evidence” which supports the employer’s/insurer’s notice to controvert in the same manner as it would any other evidence and, in making its new award on the employee’s claim, to accept or reject that “newly discovered evidence” as to non-compensability based upon the relative merits or the lack thereof.

Judgment reversed and case remanded with direction that a new award be made.

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


text:
    76373.
    FORSYTH COUNTY BOARD OF EDUCATION et al. v. TRUSTY.
    (370 SE2d 793)
   Benham, Judge.

The award of the ALJ in this workers’ compensation case was issued on December 3,1985. Although appellee’s counsel had recently notified the ALJ of a change of address for counsel, a copy of the award was sent to counsel’s old address. Counsel received a copy of the award in the mail on December 10, 1985. An appeal to the full board, filed January 3, 1986, was held untimely. The superior court, after an appeal to this court from the first judgment entered in this case (184 Ga. App. 193 (361 SE2d 55) (1987)), held that notice was not perfected until counsel’s receipt of a copy of the award on December 10,1985; that the 30-day period for filing an appeal ran from that date; and that the appeal was timely. We reverse.

In Favors v. Travelers Ins. Co., 150 Ga. App. 741, 746 (1) (258 SE2d 554) (1979), this court established that the “date appearing on the face of the administrative law judge’s award would be the date from which the 30-day time limit would be calculated if the copy of the award were sent by registered or certified mail.” Because the law under which Favors was decided required mailing by registered or certified mail, this court noted that mailing by regular mail would add three days to the 30-day period. However, in footnote 3 of that opinion, we noted further that the requirement for registered or certified mail had been removed from the statute and that there would be no automatic three-day extensions for cases arising after the amendment. This is such a case.

Under Favors and OCGA §§ 34-9-102 and 34-9-103, the notice in this case was effective on December 3, 1985, if mailed to the parties on that date. A careful study of the record reveals no showing or even an allegation that notice was not properly sent to the parties. There seems to be no question in this case that the notice was sent to counsel’s old address. However, we can find no statutory provision or appellate decision requiring that notice be sent to counsel at all. OCGA § 34-9-102 (f) provides that “a copy of the [ALJ’s] decision shall be mailed to all parties.” (Emphasis supplied.) Subsection (i) requires that “[e]ach employer and claimant” maintain an address of record and provides that notice requirements are satisfied by mailing to the address of record. It is clear from the statute that the employer (which includes its insurer, OCGA § 34-9-1 (3)) and the employee are the parties in a workers’ compensation case.

We find no authority for the proposition that counsel for an employer or employee is a party to the litigation. “Georgia law broadly defines a ‘party’ to include one who is directly interested in the subject matter of the litigation, has the right to adduce testimony, to cross-examine witnesses, to control the proceedings, and to appeal from the judgment. [Cits.]” Wilkins v. Dept. of Human Resources, 255 Ga. 230 (3) (337 SE2d 20) (1985). That description fits either the employer or the employee, but not the counsel for those parties.

Decided June 8, 1988.

Daniel C. Kniffen, Charles L. Drew, for appellants.

Kenneth J. Rajotte, for appellee.

Though there would certainly be virtue in a statutory requirement that notice be sent to counsel as well as to the parties, the legislature has not enacted one. Until it does, notice mailed to the parties is sufficient. There being no contention here that notice to the claimant herself was insufficient, there was no basis for the superior court’s holding that the time for appealing the ALJ’s award ran from December 10, 1985. Under Favors, supra, it ran from the date of issuance of the award, December 3, 1985, and the appeal filed January 3, 1986, was untimely. The trial court erred in holding that the appeal was timely.

Judgment reversed.

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


text:
    76057, 76058.
    ARGONAUT INSURANCE COMPANY et al. v. ATLANTIC WOOD INDUSTRIES, INC.; and vice versa.
    (370 SE2d 765)
   Carley, Judge.

Appellee-cross-appellant Atlantic Wood Industries, Inc. (Insured) filed a two-count complaint, alleging that it was or, at some point, had been afforded liability coverage under policies which were issued by appellant-cross-appellees (Insurers). In Count One of its complaint, the Insured sought “a declaratory judgment declaring that under the terms of the insurance policies issued by [the Insurers]: (a) [The Insured] is entitled to reimbursement of all its defense costs incurred so far or that may be incurred by [the Insured] in [connection with a specified administrative proceeding] or any similar future actions; and (b) [The Insured] is entitled to a defense by [the Insurers] in the [specified administrative proceeding] and any similar future actions.” Count Two of the Insured’s complaint purported to allege a breach of contract claim against the Insurers. The relevant allegations as to this breach of contract count were that the Insurers’ “failures to defend [the Insured] in the [administrative] action constitute material breaches of the insurance contracts they issued. ... As a result of [the Insurers’] breaches of their insurance contracts, [the Insured] has suffered and continues to suffer actual damages in the amount of the defense cost [that the Insured] . . . [has] incurred and [the Insured] is incurring with respect to the [administrative] action. [The Insured] requests an award of actual legal defense costfs] incurred and to be incurred in the defense of the [administrative] action and for consequential damages and interest, as allowed by law.”

The Insurers answered, denying the material allegations of the two-count complaint, and they subsequently filed motions to dismiss the Insured’s petition for failure to state a claim. The trial court conducted a hearing on the Insurer’s motions to dismiss. As to Count One of the complaint, wherein a declaratory judgment was sought by the Insured, the trial court granted the Insurers’ motions to dismiss. As to Count Two, wherein a claim for breach of contract was alleged by the Insured, the trial court denied the Insurers’ motions but certified this order for immediate review. Case Number 76057 results from this court’s grant of the Insurers’ application for an interlocutory appeal from the denial of their motions to dismiss the Insured’s breach of contract claim. In Case Number 76058, the Insured cross-appeals from the grant of the Insurers’ motions to dismiss the declaratory judgment claim.

Case No. 76058

1. We will address the merits of the Insured’s cross-appeal first. As indicated, the issue to be resolved is whether the portion of Insured’s complaint which sought a declaratory judgment as to the existence of coverage afforded by the Insurers and the right to a defense provided by them failed to state a claim upon which relief could be granted.

The trial court’s grant of the Insurers’ motions to dismiss the Insured’s declaratory judgment count was based upon United States Cas. Co. v. Ga. S. & Fla. R. Co., 95 Ga. App. 100, 103-104 (97 SE2d 185) (1957), wherein this court held: “[I]f the insured defends the action, and certainly the insured wants any action against it defended, and the insurer is not liable the insured has lost nothing for it would have only spent money to defend an action brought against it which was not covered by the insurance policy, and, if the insurer is liable, the insured can recover any sums spent by it to defend the action, and, if a judgment is rendered against it, the amount of the judgment up to the limits of the policy in a breach of contract suit against the insurer. All the rights of the parties under the insurance contract and the contracts or agreements were fixed at the time of the [alleged insurable event], and the [insured] is not in a position of having to take some action which, if taken without the aid of a declaratory judgment, might jeopardize its position. Accordingly, the trial court erred in overruling the [motion to dismiss for failure to state a claim] filed by the insurance company. ...” Thus, there can be no question but that so long as United States Cas. Co. remains the law of Georgia, the trial court correctly granted the Insurers’ motions to dismiss the Insured’s declaratory judgment count. The Insured urges, therefore, that this court use the present appeal as the vehicle for reconsidering the issue of whether an insured has the right to seek declaratory relief against his insurer and it further urges that, upon that reconsideration, we overrule the decision in United States Cas. Co., supra.

Research indicates that Georgia appears to be one of the few jurisdictions, if not the only one, wherein the insurer but not the insured is entitled to seek declaratory relief as to the issues of the existence of coverage and the duty to defend. The legal rationale for such a seemingly one-sided rule has been challenged from the outset. The dissenters in United States Cas. Co., supra at 104, noted: “[I]t is immaterial that the rights of the parties had already accrued and that the [insured] had a remedy at law against the casualty company for damages, attorneys’ fees and expenses for a failure to defend the action. If the casualty company is obligated to defend the action against the [insured], by the terms of the insurance policy, the [insured] is entitled to have the case defended by the insurance company if it so desires. This is a legal right and the determination of the obligation of the insurance company is necessary in order that the [Insured] may determine its future action with reference to a defense of the case. It is no concern of the courts as to why the [insured] insists on the right to have the insurance company defend the case. It is enough that under the law and decisions of the Supreme Court, as we interpret them, it has a right to know what its rights are, as a guide for its future course.” (Dissent of Chief Judge Felton and Judge Townsend.) Thus, from the very time of its original issuance, the holding in United States Cas. Co. has been subjected to a challenge. Because litigation has become a more commonplace factor in contemporary life and more insureds are, therefore, having occasion to invoke the liability coverages of their policies, an appellate reevaluation of the holding of United States Cas. Co. would, as the Insured suggests, be appropriate in a case such as the one at bar.

The Insurers urge, however, that, even if, after a reevaluation of United States Cas. Co., a majority of this court was presently inclined to overrule it, we would nevertheless ultimately have no authority other than to follow its rationale in the present case. In urging that we are bound by United States Cas. Co., the Insurers rely upon Residential Dev. v. Merchants Indem. Co. of N. Y., 122 Ga. App. 503 (177 SE2d 715) (1970) aff’d 227 Ga. 332 (1971). In that case, this court, placing its reliance principally upon United States Cas. Co., held that an insured’s petition for declaratory judgment against his liability insurer was properly dismissed for failure to state a claim. The Supreme Court granted certiorari and held: “After further consideration we are of the opinion that the Court of Appeals correctly decided this case ([cit.]) and its judgment is Affirmed.” Residential Dev. v. Merchants Indem. Co., 227 Ga. 332 (180 SE2d 729) (1971). The Insurers urge that the Supreme Court decision in Residential Dev. v. Merchants Indem. Co., supra, is an implicit endorsement of the holding in United States Cas. Co. and that, as such, it would serve to preclude this court from reaching any disposition of the present case which is not consistent with the rationale of United States Cas. Co.

In response, the Insured suggests that interpretations of the Supreme Court’s opinion in Residential Dev. as something other than an implicit endorsement of United States Cas. Co. are possible. However, no interpretation suggested by the Insured is more logical than that the Supreme Court did in fact intend that its opinion constitute an endorsement of this court’s decision in United States Cas. Co. The Supreme Court in Residential Dev., supra, did not merely affirm the judgment of this court. It held that this court had “correctly decided” the case. Since this court had based its opinion principally upon United States Cas. Co., the Supreme Court’s specific endorsement of this court’s opinion as “correctly decided” would most logically be construed as an endorsement of the rationale of the legal authority relied upon therein.

Since this court is not free to ignore controlling Supreme Court authority, we are constrained to hold that the Insurers are correct in their assertion that, notwithstanding this court’s present agreement or disagreement with the rationale of United States Cas. Co., we are required to apply it in this case. Only our Supreme Court is authorized to reevaluate its implicit endorsement in Residential Dev., supra, of the rationale of United States Cas. Co. and, after that reevaluation to overrule or to reaffirm that rationale. It follows that, pursuant to United States Cas. Co., supra, as implicitly endorsed in Residential Dev., 227 Ga. 332, supra, the trial court’s grant of the Insurers’ motions to dismiss the Insured’s claim for declaratory relief must be affirmed.

Case No. 76057

2. The Insurers’ enumerate as error the denial of their motions to dismiss the Insured’s breach of contract claim. The Insurers’ primary contention is that the result of allowing the Insured to pursue a breach of contract claim would be the effective nullification of “the important policies underlying” the rationale of the declaratory judgment rule of United States Cas. Co. and would allow the Insured “to obtain indirectly what [the United States Cas. Co. declaratory judgment] rule prohibits it from obtaining directly.”

The duty of liability insurers, such as the Insurers in the present case, is not only to pay judgments which are rendered against the insured, but also to defend actions which are brought against him. See generally Anderson v. U. S. Fid. & Guar. Co., 177 Ga. App. 520, 521 (339 SE2d 660) (1986). The Insured in this case seeks damages for the Insurers’ alleged breaches of their contractual duty to provide it with a defense in a specified administrative proceeding. The very reason that has been advanced as support for the proposition that a declaratory judgment as to the existence of such a duty to defend is not an available remedy for the Insured provides support for the proposition that pursuit of an action at law by the Insured for breach of contract is a remedy which is available to him. “All the rights of the parties under the insurance contract . . . were fixed at the time of the [alleged insurable event], and the [insured] is not in a position of having to take some action which, if taken without the aid of a declaratory judgment, might jeopardize its position.” United States Cas. Co. v. Ga. S. & Fla. R. Co., supra at 103-104. Thus, the Insurers either were or were not required under the terms of their policies to undertake the defense of the Insured in the administrative proceeding. Likewise, the Insured would either be entitled to sue for breach of contract based upon the Insurers’ refusal to have undertaken that defense or it would not. In Georgia, it is clear that an insured has a claim for breach of contract if the insurer refuses to afford a defense that it has contracted to provide. “[I]f the insurer is liable [under the policy], the insured can recover any sums spent by it to defend the action . . . in a breach of contract suit against the insurer.” (Emphasis supplied.) United States Cas. Co. v. Ga. S. & Fla. R. Co., supra at 103. See also Farlow v. Vigilant Ins. Co., 165 Ga. App. 696, 698 (302 SE2d 578) (1983) (holding that an insured has a breach of contract claim for the damages resulting from the insurer’s actionable refusal to provide a defense).

It would appear that the Insurers in this case do not so much contest the Insured’s ultimate right to seek damages for an alleged breach of contract to provide a defense as they challenge the Insured’s timing in its seeking of those damages. The Insurers urge that the Insured would have no viable breach of contract claim prior to the entry of a “final judgment” in the administrative proceedings. It is true that, prior to the entry of such a “final judgment” in the administrative proceedings, the Insured’s ultimate liability will not be ascertained and that the total amount that the Insured may have been damaged by the alleged breach by the Insurers of their duty to defend will not be determined. However, it is also true that the Insured’s ultimate liability in the administrative proceeding is material only to the Insurers’ duty to indemnify, not to their duty to provide the Insured with a defense in that proceeding. The present inability to ascertain the total amount that the Insured will be forced to expend to defend itself is not a legal impediment to the Insured’s existing right to seek legal relief for the Insurers’ alleged breach of contract. “ ‘The fact that the decision in a pending lawsuit may largely affect a claimant’s rights does not cause his right of action to accrue only upon the termination of such suit. His cause of action accrues independently of it, except when the pending suit is practically conclusive as to the nature and extent of his rights, or where his success therein is a prerequisite to his right to maintain the new action. . . . Under the rule that an action for a breach of contract may be begun before substantial damage has been sustained, a right of action accrues and the statute begins to run at the time the contract is broken, not at the time when actual damage results or is ascertained.’ [Cits.]” Mobley v. Murray County, 178 Ga. 388, 396 (173 SE 680) (1934). “ ‘Under Georgia law, the statute of limitations runs from the time the contract is broken “and not at the time the actual damages result or is ascertained.” [Cits.]’ [Cit.]” Space Leasing Assoc. v. Atlantic Bldg. Systems, 144 Ga. App. 320, 324 (2) (241 SE2d 438) (1977).

The Insurers urge, however, that, notwithstanding the absence of any legal impediment, there is a valid contractual impediment to the Insured’s right to assert a claim for the alleged breach of their duty to defend at any time prior to the entry of a “final judgment” in the administrative proceedings. The Insurers rely upon the presence in the policies issued to the Insured of a “no action” clause. There is authority for this proposition advanced by the Insurers. It is not, however, binding authority. See Ginn v. State Farm &c. Ins. Co., 417 F2d 119 (5th Cir. 1969). The rule in Georgia is that the “no action” clause will bar the filing by an injured party of a pre-judgment direct action for indemnity against the insured party’s liability carrier. See generally Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830 (113 SE2d 774) (1960); Thompson v. Bolton Chevrolet Co., 125 Ga. App. 369 (187 SE2d 574) (1972); Krasner v. American Guar. &c. Ins. Co., 110 Ga. App. 468 (138 SE2d 921) (1964). Under controlling Georgia authority, the “no action” clause will not, however, bar the filing by the insured party himself of a direct pre-judgment action for breach of contract against his own liability insurer. The “no action” provision, “ ‘if permitted to become effective, should not operate in this case for the reason that the [Insurer] is alleged to have breached its contract. According to the . . . complaint, it has declined to perform the obligation of its undertaking in any way. It has refused to defend [the Insured] and has declined to meet the expenses contemplated by its contract. Under such circumstances it should not be permitted to interpose contractual provisions of a contract it has repudiated.’ ” Munday v. State Farm Fire &c. Co., 172 Ga. App. 382, 384 (2) (323 SE2d 193) (1984).

Decided May 27, 1988

Rehearings denied June 9, 1988

Dennis M. Flannery, John H. Harwood II, Joseph K. Brenner, Bobby Jones, Joseph H. Barrow, James M. Thomas, James W. Greene, Frank B. Miller, Mary Lou Kramer, C. Michael DeCamps, Paul W. Painter, Jr., Benny C. Priest, John M. Tatum, for appellants.

Arnold C. Young, Gerald P. Norton, Edward A. Kurent, Waltraut S. Addy, for appellee.

It follows that, contrary to the Insurers’ contentions, the Insured’s breach of contract claim is not an attempt to obtain indirectly what it cannot obtain directly. The assertion of the claim represents the Insured’s direct attempt to obtain in legal proceedings exactly what the law authorizes it to obtain. An insured’s claim for breach of contract based upon his insurer’s failure to provide him with a defense states a claim for legal relief, notwithstanding the lack of a “final judgment” against the insured or the existence of a “no action” clause in the underlying policy. Munday v. State Farm Mut. Fire &c. Co., supra. If any of the Insurers has a defense to the Insured’s claim, it would be appropriate for that Insurer to file a motion for summary judgment on the merits of that defense. A motion to dismiss the breach of contract count for failure to state a claim would not, however, be appropriate. “A motion to dismiss a complaint should not be granted for failure to state a claim unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” American Nat. Bank &c. Co. of Chattanooga v. Davis, 241 Ga. 333, 333-334 (245 SE2d 291) (1978). It follows that the trial court correctly denied the Insurers’ motion to dismiss the Insured’s breach of contract claim.

Judgments affirmed.

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


author: Carley, Judge. Sognier, Judge,

text:
    76612.
    ARGONAUT INSURANCE COMPANY v. ATLANTIC WOOD INDUSTRIES, INC.
    (370 SE2d 770)
   Carley, Judge.

This is a companion case to the appeal and cross-appeal in Argonaut Ins. Co. v. Atlantic Wood Indus., 187 Ga. App. 471 (370 SE2d 765) (1988). For purposes of deciding this appeal, it is necessary only to state that, while the appeal in Argonaut Ins. Co. was pending in this court, appellee-plaintiff Atlantic Wood Industries, Inc. (Insured) nevertheless attempted to engage in ongoing discovery with regard to the underlying action and, to that end, it sought to depose an agent of appellant-defendant Argonaut Insurance Company (Insurer). The Insurer filed a motion for a protective order. Insofar as it is relevant to this case, the Insurer asserted in its motion that, so long as the appeal in Argonaut Ins. Co. was pending in this court, the trial court was divested of jurisdiction as to any and all issues in the case, including the authority to sanction ongoing discovery. The trial court denied the Insurer’s motion for a protective order, but it did certify its order for immediate review. The present appeal results from this court’s grant of the Insurer’s application for an interlocutory appeal from the denial of its motion for a protective order.

“It is true that a trial judge loses jurisdiction of a case which has been taken to a court of review . . . and as to all matters covered therein he is without further authority. [Cits.]. . . . [However,] ‘[t]he general rule that a case leaves the jurisdiction of the trial court when an appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court notwithstanding the loss of jurisdiction over the case taken to the higher court.’ . . . ‘Matters independent of and distinct from the questions involved in the appeal are not taken from the jurisdiction of the trial court. Such matters as the appeal does not cover are purely collateral or supplemental, lying outside the issues framed in the case, or arising subsequent to the delivery of the judgment from which the appeal is prosecuted.’ ” Bivins v. McDonald, 50 Ga. App. 299, 302 (177 SE 829) (1934). “Therefore, pursuant to [OCGA § 5-6-46], a notice of appeal, with payment of costs, serves as a supersedeas of the judgment (unless supersedeas bond be required), and ‘while on appeal, the trial court is without authority to modify such judgment.’ [Cits.] But the notice of appeal supersedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal. [Cits.]” Cohran v. Carlin, 249 Ga. 510, 512 (291 SE2d 538) (1982). Accordingly, what we must determine in this case is whether the pursuit of discovery by the Insured should be considered as a matter which was collateral to the issues raised in Argonaut Ins. Co., supra, or whether the filing of the notice of appeal in that case served to oust the trial court from jurisdiction even as to matters of discovery.

In Cohran v. Carlin, supra, it was held that the trial court was authorized to sanction the pursuit of discovery in the main action during the pendency of an appeal from the grant of summary judgment in the third-party action. In the present case, unlike in Cohran, however, the only action that was ever filed in the trial court was the Insured’s main action and both of the claims which the Insured had stated in that main action were pending before this court in Argonaut Ins. Co. v. Atlantic Wood Indus., supra. Thus, unlike Cohran, the trial court’s denial of the Insurer’s motion for a protective order sanctioned the pursuit of discovery in a case which was, in all of its various aspects, then pending in this court. The Insurer urges that Cohran stands for the narrow proposition that discovery may continue only as to those legal issues which are still pending in the trial court and does not stand for the broader proposition that discovery is itself collateral and may continue even as to any matter which is then pending in the appellate court. According to the Insurer, although the trial court may be authorized to sanction discovery as to any collateral matter which may be pending in the trial court, the pursuit of discovery as to an issue which is pending in the appellate court is not itself a collateral matter which the trial court is authorized to sanction.

Although Cohran is factually distinguishable, there is no reason for holding that the rationale of Cohran is dependent upon the existence of such facts as were therein presented. It has been held that, pending an appeal from an interlocutory order denying the functional equivalent of a motion to dismiss for failure to state a claim, the trial court is nevertheless authorized to conduct a trial as to the merits of the claim. See Young v. Reese, 119 Ga. App. 179, 180 (1) (166 SE2d 420) (1969), cited with approval in Cohran v. Carlin, supra at 512 and 513. If the trial court is authorized to conduct the actual trial of a case during the pendency of an interlocutory appeal from the denial of a motion to dismiss for failure to state a claim, it would certainly follow that the concept of supersedeas is no impediment to the trial court’s mere sanctioning of ongoing discovery during the pendency of an interlocutory appeal from the denial of such a motion. The discovery order from which the present appeal was taken in no way purported to affect — by reversing, affirming or enforcing — the specific interlocutory order which was the subject of the then pending appeal in Argonaut Ins. Co. v. Atlantic Wood Indus., supra. Compare Williams v. Natalie Townhouses &c. Assn., 182 Ga. App. 815 (357 SE2d 156) (1987) (holding that the trial court has no jurisdiction to undertake contempt proceedings to enforce the very judgment that has been superseded and is pending on appeal). Accordingly, we hold that the rationale of retained jurisdiction enunciated in Cohran extends to the entry of collateral orders by the trial court even as to that portion of the case which forms the underlying basis of the interlocutory appeal. An order which merely sanctions ongoing discovery as to a matter then pending in the appellate court and which does not purport to affect the merits or enforceability of that pending matter is a collateral order. “This holding will allow discovery to continue as to [interlocutory] matters pending in the [appellate] courts. ... If the trial judge’s [interlocutory] order is found to be correct on appeal, as it is in the clear majority of cases, the final trial and disposition of the litigation will have been expedited. [Cit.]” Cohran v. Carlin, supra at 512-513.

Decided May 27, 1988

Rehearing denied June 9, 1988

Clearly, ongoing discovery as to the Insured’s claims against the Insurers would be collateral to and would not purport to have a direct effect upon the trial court’s ruling that the Insured’s complaint did state a viable claim for breach of contract. Had we not granted the Insurer’s application for an interlocutory appeal, the litigation would have been expedited, for the trial court’s denial of the Insurers’ motion to dismiss the Insured’s breach of contract count was ultimately affirmed in Argonaut Ins. Co. v. Atlantic Wood Indus., supra. Accordingly, although our present decision may have been reached at the expense of the expedition of the instant litigation, our decision will hopefully expedite the litigation of all future cases wherein interlocutory appeals are pending. In those future cases, the trial court will be authorized to allow discovery to continue, regardless of whether that discovery relates to the issue involved in the pending appeal or to an issue, if any, which remains in the trial court.

Judgment affirmed.

Deen, P. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur specially to note that I remain convinced that my reasons for opposing the grant of this interlocutory appeal are sound. This appeal was taken from the trial court’s order denying appellant’s motion for a protective order pending a prior appeal of other issues in the case. While I agree with the majority’s statement that its opinion here may authorize a trial court, in future cases, to allow discovery to continue pending appeal, it distresses me that it does so at the cost of rendering an opinion which in my view is merely advisory in nature. For these particular litigants, simply granting this interlocutory appeal granted appellant by indirection, by means of the supersedeas provision of OCGA § 5-6-46 (a), that protection which it had unsuccessfully sought below, before this court had even considered the merits of its appeal. Because no discovery could proceed in the case while this appeal was under consideration, and this court has decided the other appeals in the case contemporaneously with this one, any decision rendered here is after the fact, and thus necessarily moot.

Bobby Jones, for appellant.

John M. Hewson, Arnold C. Young, for appellee.


text:
    75851.
    GILL PLUMBING COMPANY, INC. v. MACON.
    (370 SE2d 657)
   Benham, Judge.

Appellant Gill Plumbing Company, Inc., was the owner of the vehicle involved in a one-vehicle collision in which appellee’s wife died and Gill Plumbing employee Teffeteller was injured. Appellee filed a wrongful death action against appellant, and based his cause of action on the theories of respondeat superior and negligent entrustment. The trial court denied appellant’s motion for summary judgment, and we granted appellant’s application for interlocutory review of that ruling.

1. “ ‘The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. “Where a vehicle is involved in a collision, and it is shown that the automobile is owned by (another), and that the operator of the vehicle is in the employment of (the owner), a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.” This must be done by clear, positive, and uncontradicted evidence. [Cits.]’ ” Cotton v. Toole, 183 Ga. App. 547 (1) (359 SE2d 368) (1987). “ ‘[T]he presumption that the servant is serving his master within the scope of his employment may, unless supported and corroborated by other evidence, be overcome by uncontradicted evidence.’ [Cit.]” Allen Kane’s &c. Dodge v. Barnes, 243 Ga. 776, 778 (257 SE2d 186) (1979).

While it is unclear whether the decedent or Teffeteller, appellant’s employee, was driving appellant’s vehicle at the time of the collision, we will assume, for purposes of appellant’s motion for summary judgment, that its employee was behind the wheel. See Eiberger v. West, 247 Ga. 767 (Ia) (281 SE2d 148) (1981). It is undisputed that the fatal collision occurred at 1:30 a.m. while the decedent and Teffeteller were driving home from a bar where they had gone with friends.

In an attempt to carry its burden of refuting the presumption that its employee was in the scope of his employment at the time of the collision, appellant submitted the affidavits of George and Patrick Gill, the officers and co-owners of Gill Plumbing. The Gills’ depositions were filed subsequently. George Gill swore that Teffeteller was under his direct supervision and control, and both Gills stated that Teffeteller had authority to drive the Gill Plumbing vehicle for employment purposes and during working hours only; that Teffeteller was not subject to on-call status; and that Teffeteller was not acting within the course and scope of his employment at the time of the collision. By deposition, Patrick Gill testified that a vehicle was assigned to Teffeteller in order that he, as a job superintendent, might drive directly to a job site from his home without having to stop at Gill Plumbing’s office. Gill stated that he told Teffeteller when he gave him the vehicle’s keys that it was to be driven only for work purposes. George Gill testified that he brought the ban against driving company vehicles for personal use to the attention of the job superintendents at his weekly meetings with them.

The affidavits and deposition testimony of the Gills are “clear, positive, and uncontradicted evidence” that overcomes the presumption, arising from the fact that he was driving his employer’s vehicle at the time of the collision, that Teffeteller was acting within the scope of his employment. Appellee maintains that the Gills’ affidavits and depositions are “inconclusive, contradictory, and self-impeaching,” and do not constitute the clear, positive, and uncontradicted evidence necessary to refute the presumption. However, the only contradiction found between affidavits and depositions concerning the issue of respondeat superior is the Gills’ admission in their depositions that they did not have actual knowledge that the decedent was driving the Gill Plumbing truck, an assertion they had made earlier in their affidavits. Inasmuch as we, on appellant’s motion for summary judgment, have resolved that issue of fact in favor of appellee, we do not find that “inconsistency” to amount to evidence that would prevent summary judgment in favor of appellant on the issue of respondeat superior. Compare Cotton v. Toole, supra.

Because Teffeteller was on a purely personal mission at the time in question, appellee had to show some other fact indicating Teffeteller was acting within the scope of his employment in order to survive appellant’s motion for summary judgment. Divecchio v. Mead Corp., 184 Ga. App. 447 (2) (361 SE2d 850) (1987). He did not do so. Therefore, summary judgment in favor of appellant on the issue of respondeat superior should have been granted.

2. We now turn our attention to appellee’s allegation of negligent entrustment. “Under the theory of negligent entrustment, ‘liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his [vehicle] to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. [Cits.]’ ” Cherry v. Kelly Svcs., 171 Ga. App. 235 (1) (319 SE2d 463) (1984). “As to the issue of negligent entrustment, ... it was incumbent upon plaintiff to show that [Gill Plumbing] had actual knowledge of a pattern of reckless driving or facts from which such knowledge could reasonably be inferred. [Cit.]” Bonney Motor Express v. Yates, 171 Ga. App. 754 (2) (320 SE2d 844) (1984).

In their affidavits, each Gill swore that only he and his brother determined whether Teffeteller would use a Gill Plumbing vehicle; that he had no knowledge of any alleged alcohol abuse or driving history problem Teffeteller might have had; and that no information concerning such alleged problems was ever communicated to the affiant. By deposition, the Gills both testified that each had ridden with Teffeteller and had experienced no problem; that neither had reviewed Teffeteller’s driving record; that George Gill had never seen Teffeteller’s driver’s license but Patrick Gill had; that Gill Plumbing’s insurance company advised who might and might not drive company vehicles and Teffeteller had never been excluded; and that George relied on the insurance company to determine who could drive company vehicles. Each Gill repeated the statements in his affidavit that he was unaware of any drinking problem that Teffeteller might have had.

Through the sworn statements and testimony of the Gills, appellant proved it had no actual knowledge of Teffeteller’s purported problems. In an effort to set forth facts from which it could be inferred that appellant had knowledge of Teffeteller’s alleged reckless driving, appellee submitted an uncertified printout of Teffeteller’s driving history, dated December 18, 1986. The incidents contained in the printout, however, occurred after the August 1984 collision presently at issue. Appellee’s evidence does not present a question of fact concerning appellant’s knowledge of a pattern of reckless driving by Teffeteller.

Appellee suggests that we follow the lead of the decision rendered by this court in Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987), and do away with the requirement that an entruster have actual knowledge of a pattern of recklessness before being held potentially responsible for negligent entrustment. Lear Siegler, however, was a case involving- the tort of negligent hiring wherein this court overruled an aberration in the line of negligent hiring cases. Furthermore, a plaintiff in a negligent entrustment action is not limited to showing actual knowledge of the entruster inasmuch as that plaintiff may show “actual knowledge of a pattern of reckless driving or facts from which such knowledge could reasonably be inferred." Bonney Motor Express v. Yates, supra. It would appear that a negligent entrustment plaintiff could show, as appellee attempted, knowledge on the part of the entruster by presenting facts from which it could reasonably be inferred that the entruster knew of the driver’s poor driving habits or skills. In the case at bar, appellee failed to present such facts after appellant had successfully carried its burden of proving it had no actual knowledge. The trial court erred in denying summary judgment to appellant on the issue of negligent entrustment.

Decided June 9, 1988.

A. Terry Sorrells, Cheri D. McLeod, for appellant.

David W. Hibbert, for appellee.

Appellee would have us impose a duty upon employers to inquire into the background of an employee who the employer intends to place in a position that requires driving. While the writer agrees that such a duty should be imposed in a negligent hiring care (see dissent in Lear Siegler v. Stegall, supra), it would be unduly burdensome to impose the same duty in a case involving negligent entrustment in light of the more casual, immediate (spur of the moment), and short-term relationship that may exist between an entruster and entrustee as compared to that which exists between an employer and an employee hired to perform driving duties.

Judgment reversed.

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


text:
    76176.
    NICOLAY v. GEORGIA HIGHER EDUCATION ASSISTANCE CORPORATION et al.
    (370 SE2d 660)
   Benham, Judge.

Between March 1981 and April 1984, appellant executed seven promissory notes for student loans. In December 1984, she executed an installment loan which established a schedule for payment of the first seven notes. Appellant subsequently filed for relief in bankruptcy and was granted a discharge. Appellee brought suit seeking to recover for all eight notes in March 1987. Appellant’s defense was discharge in bankruptcy.

According to 11 USCA § 523 (a) (8), student loans such as the first seven appellant received are not dischargeable. However, appellant contends, the note of December 1984 was given in satisfaction of the earlier notes, relieving her of liability for them, and since the latter note was not directly for educational purposes, it was discharged. In re Ziglar, 19 BR 298 (Bkrtcy. E.D. Va. 1982). In support of her contention that the earlier notes were satisfied, appellant submitted her affidavit in which she recounted her “understanding” that the earlier notes would be satisfied, and averred that she was told that signing the December 1984 note would do away with the “temporary” notes she had signed earlier. The trial court, nonetheless, granted appellees’ motion for summary judgment. We affirm.

Decided June 9, 1988.

James A. Elkins, Jr., for appellant.

Christine C. Daniel, for appellees.

Each of the first seven notes provided that appellant would later execute an installment note to establish a payment plan, that the installment note would become part of each of the earlier notes, and that failure to execute the installment note would be an event of default. The installment note made reference to the other notes. It is unambiguously clear from the eight documents executed by appellant that the installment note was intended merely to provide a payment schedule, not to extinguish the earlier notes.

Absent fraud, accident, or mistake, none of which is alleged here, parol evidence is not admissible to vary or contradict the terms of a note. Tyson v. Henson, 159 Ga. App. 684 (285 SE2d 27) (1981). Appellant’s assertion that the installment note was intended to satisfy the others contradicts the clear terms of the notes and was, therefore, inadmissible for that purpose. Furthermore, parol evidence oifered to vary the terms of a written instrument, even if erroneously admitted, is without probative value. Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). Since appellant’s assertions contrary to the terms of the notes have no probative value, there is no probative evidence in the record that the installment note extinguished or replaced the earlier notes.

Wages v. Nat. Bank of Walton County, 169 Ga. App. 514 (313 SE2d 771) (1984), standing for the proposition that parol evidence can be used to show that a renewal note was intended to satisfy an earlier obligation, is distinguishable. There, the last note was clearly a renewal and the terms of it were not contrary to the notion that it was intended as satisfaction of the earlier note. The notes involved here contradict such an intent on their faces.

Judgment affirmed.

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


text:
    76256.
    ROBERSON v. THE STATE.
    (370 SE2d 661)
   Benham, Judge.

Appellant was convicted of four counts of child molestation and four counts of aggravated child molestation. The victims were appellant’s ten-year-old stepdaughter; his eight-year-old niece; his seven-year-old adopted son, and his three-year-old son. On appeal, appellant only takes issue with the judgment entered on those convictions involving the three-year-old victim, who did not testify at trial.

Appellant contends the evidence presented at trial was insufficient to support the two convictions. The indictment charged appellant with “placing his penis against the anus area of [the three-year-old boy] with the intent to satisfy the sexual desires of the accused,” and with “placing his mouth upon the penis of [the child] . . . with the intent to satisfy the sexual desires of the accused.” See OCGA § 16-6-4 (a), (c).

Testimony presented by the State concerning this victim was brief. The child’s mother testified that she once awakened to find her husband masturbating in front of the three-year-old in the family room, but did not see appellant touch the child. The family nurse practitioner who examined the child testified that it was important that she get a precise history from the child as to what had occurred and, over a hearsay objection, then related that the child had told her that “his father used vaseline in the child’s mouth and in his rectum and that his father put his penis in the child’s mouth and in his rectum until some watery stuff came out. . . .” The trial court permitted the testimony under the “patient history” exception to the hearsay rule. OCGA § 24-3-4. As stated earlier, the child did not testify.

Under OCGA § 24-3-4, “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.” “[OCGA § 24-3-4] permits, as an exception to the hearsay rule, statements made for the purpose of describing medical history insofar as reasonably pertinent to diagnosis or treatment. The identity of the defendant contained in the out-of-court statements was unnecessary to any legitimate purpose addressed in [OCGA § 24-3-4], and admission of that portion of the statement was error.” Johnson v. State, 149 Ga. App. 544 (5) (254 SE2d 757) (1979). See also Lewis v. State, 161 Ga. App. 209 (2) (288 SE2d 278) (1982). “Under this Code section the child’s statements about what happened were admissible at trial. This is not to say, however, that her statements about who did it were admissible as this information would not be pertinent to the medical diagnosis. [Cit.]” State v. Butler, 256 Ga. 448, 449 fn. 1 (349 SE2d 684) (1986). It was error to admit the unrestricted testimony of the nurse practitioner. Compare Sparks v. State, 172 Ga. App. 891 (2) (324 SE2d 824) (1984); Jones v. State, 161 Ga. App. 610 (6) (288 SE2d 788) (1982). The admission of the testimony concerning the child’s identification of his father to the nurse practitioner as the perpetrator was not cumulative because the record contained no other evidence linking appellant to the acts perpetrated upon the child. Compare Jones v. State, supra; Johnson v. State, supra. Appellant’s two convictions based upon acts allegedly performed on the three-year-old child must be reversed since inadmissible hearsay, wholly without probative value, was the only evidence linking appellant to the acts. See Duke v. State, 205 Ga. 106, 110 (52 SE2d 455) (1949). Even if the nurse practitioner’s entire testimony were admissible, appellant’s conviction for aggravated child molestation would have to be reversed because the indictment alleged that appellant had placed his mouth upon the child’s sex organ, while the nurse practitioner testified that the child said that appellant had placed his sex organ in the child’s mouth. “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance ... As we understand the rule, no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. [Cits.] ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance . . . [Cits.]” Cantrell v. State, 162 Ga. App. 42, 43 (290 SE2d 140) (1982).

Decided June 9, 1988.

Anthony N. Perrotta, Lauren L. Becker, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Kimberly L. Schwartz, Assistant District Attorneys, for appellee.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    76179.
    BOY v. THE STATE.
    (370 SE2d 787)
   McMurray, Presiding Judge.

Defendant was indicted and convicted of the offense of armed robbery. At trial the State’s evidence included a video tape of the armed robbery recorded from a security camera and testimony regarding defendant’s confession of the crime charged. In his sole enumeration of error defendant contends the trial court erred in refusing to grant his motion for new trial. We note that defendant’s appellate counsel is not the same as his trial counsel. Held:

The primary issue raised by defendant’s motion for new trial involves an improper extrajudicial communication with a juror. Among the panel of prospective jurors called for defendant’s case was Stilwell, a secretary employed by Keown, an attorney. Keown had represented defendant previously in a burglary case and had been appointed to represent defendant in the case sub judice until relieved by retained counsel. During both periods of time Stilwell as Keown’s secretary was familiar with most of the details of Keown’s representation of defendant. Although voir dire was not recorded, the trial court recalled that Stilwell had stood up in open court and said that she knew the defendant and, in response to an inquiry, that her knowledge of defendant had something to do with her law firm. No objection was made when Stilwell’s statements were made in open court in the presence of potential jurors some of whom eventually served on the jury before which the case sub judice was tried.

Stilwell was stricken by the prosecution. Following the selection of the jury, the improper communication at issue occurred when Earwood, one of the jurors chosen to serve in the trial of the case sub judice had a conversation with Stilwell which juror Earwood related as follows: “I was walking down the sidewalk and [Stilwell] was just a little bit behind me, and I turned to her and said, ‘Does [defendant] look like he’s been beaten up?’ And she said, ‘I don’t know. But in the case that we represented’ — and she named the lawyer’s name which I do not remember. This type — I cannot remember exactly how she put it. ‘In the case that we represented [defendant] on this was involved.’ ” Another juror Anderson testified in regard to overhearing the conversation between Stilwell and Earwood. Defendant contends that due to the improper communication he was deprived of his right to a fair and impartial jury and his right to confront and cross-examine witnesses against him and that his character was placed in issue. “We have held that where a communication with a jury is shown, the burden is on the state to rebut the presumption of harm. Shaw v. State, 83 Ga. 92 (9 SE 768) (1889).” Owens v. State, 251 Ga. 313, 321 (9), 322 (305 SE2d 102). See also Mercer v. State, 169 Ga. App. 723, 728 (6), 729 (314 SE2d 729). However, “a new trial will not be granted unless there is a reasonable possibility that the improper evidence collected by jurors contributed to the conviction. See Boles v. State, 168 Ga. App. 904 (2) (310 SE2d 741) (1983), cert. den. 252 Ga. 1 (312 SE2d 299) (1984).” Bobo v. State, 254 Ga. 146 (1) (327 SE2d 208).

While the conduct of juror Earwood in initiating the conversation with Stilwell was obviously improper, the evidence shows that the misconduct was not harmful to the defendant in the case sub judice. Information that defendant had previously been represented by an attorney does not place defendant’s character in issue. Heaton v. State, 180 Ga. App. 718 (1) (350 SE2d 480). The evidence fails to show that neither, on voir dire nor during the improper communication, was the nature (whether civil or criminal) of Stilwell’s employer’s representation of defendant revealed. Nor does the reference to defendant having been beaten up place defendant’s character in issue or suggest his guilt of any crime.

Decided June 3, 1988

Rehearing denied June 10, 1988

Robert S. Stubbs III, for appellant.

Rafe Banks III, District Attorney, Wallace W. Rogers III, Assistant District Attorney, for appellee.

Neither of the two jurors, who testified at the hearing on defendant’s motion for new trial, understood Stilwell’s remarks at the time they were made to suggest that defendant had previously been prosecuted for a criminal offense. Juror Earwood drew such an inference only after hearing the evidence at trial. Juror Earwood did not communicate her conclusion that defendant had previously been in trouble until after the jury reached its verdict. Since the substance of the improper communication was not prejudicial and had already been heard by Earwood in open court without any objection by defendant we do not view the improper communication as being harmful in regard to juror Earwood. Juror Anderson, who overheard Stilwell’s remarks, testified that she made no association between Stilwell’s remarks and defendant. While there was evidence that during jury deliberations, remarks were made by an unidentified juror that defendant had been in previous trouble with the law, the record suggests that there was no reasonable possibility of the remarks having arisen from the improper communication with Stilwell.

The remaining issues argued by defendant were waived by failure to make timely and proper objections at trial. The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Pope and Benham, JJ., concur.