author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0579.
    GINN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (396 SE2d 582)
   Deen, Presiding Judge.

Defendants James and Jerry Ginn appeal the grant of State Farm’s motion for summary judgment.

State Farm brought an action for declaratory judgment against the two defendants, who were husband and son respectively of Polly Ginn, an insured under a State Farm automobile policy providing liability coverage. Under the terms of the policy defendants were also insureds. Among the provisions was a requirement of notice of accident or loss which read: “The insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible.” It then specified details to be furnished. The policy also provided for immediate notification of a claim or suit against the insured.

State Farm contended it did not provide insurance coverage under the following factual situation. Jerry Ginn, out on a date, met a friend who had just acquired a 1976 Trans-Am. Jerry received permission to drive the automobile and he, his friend and their two dates proceeded on Highway 17 out of Royston toward Elberton. State Farm asserted below that Jerry and another driver engaged in a side-by-side race which ended when the other vehicle swerved from the left-hand (passing) lane to the right-hand lane in order to avoid an oncoming truck, lost control, swerved back into the left-hand lane and struck a second truck driven by James Hall. Jerry was charged with racing and driving without proof of insurance and it developed that the Trans-Am was uninsured. No actual physical contact between the other vehicles and the Trans-Am occurred. Defendants did not notify State Farm about the collision until almost two years later when Hall brought suit against them and the driver of the other vehicle.

State Farm alleged that the failure to notify it about the “accident or loss” violated the provisions of the policy and absolved it from liability and the obligation to defend the Ginns. After defensive pleadings were entered and affidavits and depositions were filed, State Farm moved for summary judgment on the ground that there were no genuine issues of material fact. By deposition and affidavit, Jerry Ginn denied that he was engaged in racing, explaining that the other automobile came alongside and stayed there until a truck approached; that he did not recognize the other driver as someone he knew until the other vehicle pulled beyond him.

When asked at deposition why the incident had not been reported, Jerry responded: “It wasn’t my car, it wasn’t my parents’ car and we weren’t involved in the wreck, so I didn’t see a reason why we should.” He reiterated the failure to report was that he felt he was not liable in the wreck and had no involvement. By affidavit Jerry stated that he did not report to State Farm because he was a witness to the collision and did not receive or cause any damage; that even if the automobile he was driving was actually involved in the collision he did not realize that his mother’s insurance policy would cover the Trans-Am. The Ginns were aware of the existence and whereabouts of the policy and thus, the court concluded, they were chargeable with knowledge of its terms. Fields v. Goldstein, 97 Ga. App. 286, 288 (3) (102 SE2d 921) (1958), aff’d 214 Ga. 277 (104 SE2d 337) (1958). See Parris v. Pledger Ins. Agency, 180 Ga. App. 437, 439 (2) (348 SE2d 924) (1986). Because the collision was not a “minor accident” but a serious one, both defendants were aware of the facts and circumstances, and there was a very long delay in notifying State Farm, the trial court determined that as a matter of law defendants failed to give notice as soon as reasonably possible. State Farm’s motion was granted and judgment entered in its favor. Held:

In Young v. Allstate Ins. Co., 248 Ga. 350, 352 (282 SE2d 115) (1981), which involved a defense of lack of notice of lawsuit, the Supreme Court emphasized that “[t]he comprehensive scheme for protection of third parties may not be thwarted by defenses which would be available vis-a-vis the insurer and the insured.” The subsequent enactment of OCGA § 33-7-15 (b) re-established the lack of notice of lawsuit defense, provided the insurer could show prejudice. In Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320 (390 SE2d 419) (1990), aff’d, Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235 (392 SE2d 3) (1990), however, this court specifically held that the public policy holding in Young v. Allstate Ins. Co., remained applicable with regard to the defense of lack of notice of accident. Concerning third parties, lack of notice of accident is not a viable defense available to an insurer, and considerations of excusable delay or prejudice are immaterial. This court’s reference to prejudice and notice of accident in Starnes in distinguishing Starnes from a case involving lack of notice of lawsuit should not be read to suggest otherwise. Prejudice is applicable to the latter notice but not the former notice. Rucker v. Allstate Ins. Co., 194 Ga. App. 407 (390 SE2d 642) (1990), erroneously allowed the defense of lack of notice of accident. Accordingly, the trial court in the instant case erred in granting summary judgment for State Farm.

Judgment reversed.

McMurray, P. J., Banke, P. J., Sognier, Pope and Cooper, JJ., concur. Carley, C. J., concurs in the judgment only. Birdsong and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent.

1. Generally, questions as to the sufficiency of the excuse offered and diligence in giving notice to the insurer are questions of fact for determination by a jury. Erber v. INA, 134 Ga. App. 632 (2) (215 SE2d 528) (1975). To ascertain what is reasonable diligence and a reasonable time for providing notification, the courts will examine the insured’s explanation for the delay. See Bituminous Cas. Corp. v. J. B. Forrest &c., 132 Ga. App. 714, 719 (2) (209 SE2d 6) (1974), involving notice of the summons. Jerry Ginn’s lack of knowledge regarding the policy’s provisions as to the matter of coverage under undisputed facts is ignorance of the contents and thus not a viable excuse for failure to give notice. Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 220 (2) (231 SE2d 245) (1976).

Our cases have recognized that the issue of whether the insured believes there was an accident or loss might remain for the jury. This would occur when there was a reasonable basis for the insured to conclude that the incident was so trivial or lacking in severity or that the possibility of liability was so implausible or specious that informing his insurance company was not réquired. See Standard Guaranty Ins. Co. v. Carswell, 192 Ga. App. 103, 104 (384 SE2d 213) (1989); Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261 (358 SE2d 611) (1987); State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 468 (4) (258 SE2d 146) (1979).

Here the collision was a serious one, defendants were made immediately aware of the fact they were considered to be involved in the incident despite no contact with other vehicles, Jerry was charged with a related offense, and yet they took no action for almost two years. This supported the decision that failure to give notice was, as a matter of law, inexcusable. See Caldwell v. State Farm &c. Ins. Co., 192 Ga. App. 419, 420 (2) (385 SE2d 97) (1989); International Indem. Co. v. Smith, 178 Ga. App. 4 (342 SE2d 4) (1986); Richmond, supra; Erber, supra.

2. Next comes the issue of whether the decisions of Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320 (390 SE2d 419) (1990), aff’d Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235 (392 SE2d 3) (1990), and Rucker v. Allstate Ins. Co., 194 Ga. App. 407 (390 SE2d 642) (1990), conflict. This issue was not covered by the trial court and not raised by defendants. It is addressed by State Farm in its supplemental brief. Rucker is closer to the facts here and should be followed. The special concurrence in Rucker was merely explanatory and did not detract from or dilute the agreement with the majority. Prejudice is a matter not germane to lack of notice of the accident or loss. See Sloan, supra at 466 (1). Compare OCGA § 33-7-15 (b).

If public policy on liability is to reject, for third party protection, the lack of notice of the incident defense, or if public policy is to require prejudice to be shown, the Supreme Court should so decide. See Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981). Precedent does not compel it.

I am authorized to state that Judge Birdsong joins in this dissent.

Decided July 16, 1990

Rehearing denied July 31, 1990 — Cert, applied for.

Rodger E. Davison, for appellants.

Andrew J. Hill III, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A90A0607.
    SANDERS v. BOWEN et al.
    (396 SE2d 908)
   Deen, Presiding Judge.

Defendant Donald Sanders appeals a judgment entered on a jury verdict for plaintiffs Daimian and John Bowen in the amount of $76,000 damages for personal injuries received by Daimian when he was bitten by defendant’s pit bulldog.

1. After a case is tried, an appellate court will not review the denial of a motion for summary judgment because that issue became moot upon the trial. Drillers Svc. v. Moody, 242 Ga. 123 (249 SE2d 607) (1978); Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154 (1) (264 SE2d 662) (1980); Hardaway Constructors v. Browning, 176 Ga. App. 530 (1) (336 SE2d 579) (1985).

2. Sanders enumerates as error the denial of his motions for directed verdict and j.n.o.v. in enumerations 2 and 18. He also asserts that it was error for the court to permit the submission of the issue of agency regarding defendant’s sons (enumeration of error 7), which proposition is supported by substantially the same argument as are the evidentiary questions presented in enumerations 2 and 18. We consider these grounds together.

On September 23, 1986, 13-year-old Daimian Bowen and Adam Marlow visited defendant’s property. According to Daimian, defendant’s son Wayne had invited him and Adam to see some game chickens about two weeks before. “Bad Eye,” an 8-10 month old pit bulldog which defendant had owned between one and two months, was tied to a tree in the backyard. As Daimian approached defendant’s sons in the yard, the dog broke his part chain, part rope restraint and bit him, causing severe injury.

Neither side contends that the leash portion of OCGA § 51-2-7 is in issue. The heart of the case involves plaintiffs’ burden of proving that defendant had knowledge that the dog was a vicious or dangerous animal. Harvey v. Buchanan, 121 Ga. 384 (49 SE 281) (1904).

Defendant denied any knowledge of dangerous propensities or of his dog ever having bitten another person prior to the incident involving Daimian. To counter this and meet their burden of proof, plaintiffs sought to establish that defendant has designated his three sons, Steve age 16 or 17, Wayne age 15 or 16, and Jay age 9 or 10, to take care of Bad Eye and thus constituted them as defendant’s agents so that their admissions could be attributed to him as their principal (OCGA § 24-3-33), he would be responsible for their acts (OCGA § 51-2-2), and their knowledge would be his knowledge, at least constructively. See Flowers v. Flowers, 118 Ga. App. 85 (2) (162 SE2d 818) (1968); Hays v. Anchors, 71 Ga. App. 280 (1) (30 SE2d 646) (1944). In support of this theory, plaintiffs attempted to introduce testimony that defendant’s sons told them that the dog had tried to bite Wayne and had bitten defendant’s youngest son, Jay. Defendant contends this evidence was hearsay.

Daimian and Adam Marlow both testified that Jay Sanders told them that Bad Eye had bitten him prior to the dog’s attack on Daimian. Jay denied this as did other members of defendant’s family. This created a jury issue as to what Jay said and whether he was bitten by Bad Eye. Jay was the only one to whom any statement about Bad Eye’s biting him was attributed. In order to demonstrate defendant’s knowledge of the dog’s actions, plaintiffs had to introduce evidence that Jay acted as defendant’s agent in caring for Bad Eye. Defendant testified that he gave his sons permission to keep the dog in the backyard and in response to the question, “Which one of your sons took care of the dog Bad Eye?” he answered: “Wayne did mostly.” Plaintiffs fail to show by the record that this crucial fact of Jay’s agency was otherwise established. This evidence was at most ambiguous as to Jay’s special status and thus as to defendant’s knowledge of the event. The mere fact that Jay was defendant’s son would not be enough to show defendant knew the dog had bitten him.

A minor child may be considered his parent’s agent where he performs actions in that respect. Butler v. Moore, 125 Ga. App. 435, 436 (3) & (5) (188 SE2d 142) (1972). No direct evidence shows that Jay acted as an agent for his father in taking care of Bad Eye. Where an issue in a civil case rests upon circumstantial evidence, “the testimony must be such as to reasonably establish the theory relied on. There must be more than a ‘scintilla’ of circumstances to carry the case to the jury.” McCarty v. Nat. &c. Ins. Co., 107 Ga. App. 178 (2) (129 SE2d 408) (1962). Approved Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358 (2) (138 SE2d 886) (1964). Although there might be a hint that Jay was his father’s agent, “ ‘inferences must be based on probabilities, not on possibilities.’ ” Cohen v. Hartlage, 179 Ga. App. 847, 851 (348 SE2d 331) (1986). From the evidence elicited, it was at most merely possible that Jay was his father’s agent.

Other evidence of knowledge about the dog’s vicious tendencies was testimony by Daimian’s sister that Wayne, who did not testify at trial, told her he was training Bad Eye to fight for money. He also described how he had trained the dog to hold onto a two-by-four board with its jaws, that he tormented him with dead chickens, and that he fed the dog irregularly so as to make him “mean.” Adam Mar-low related that in his presence Bad Eye “popped” a basketball. Although an expert witness for plaintiffs testified that because a dog was trained to fight did not necessarily make him “people aggressive” and that there was no evidence that Bad Eye was particularly trained to be “people aggressive,” he did testify that a dog trained to fight would be more likely to bite a human than one not so trained. He also testified that a pit bulldog is a high energy dog and a fighting dog to begin with, and that its restraint by a chain or leash is a great stimulant.

Evidence introduced by plaintiffs as to the size and breed of the dog as well as the fact that it was kept restrained is not of itself availing. Stanger v. Cato, 182 Ga. App. 498 (356 SE2d 97) (1987). Accord Freeman v. Farr, 184 Ga. App. 830 (363 SE2d 48) (1987) (physical precedent only). “Proof that the owner of the dog either knew or should have known of the dog’s propensity to do the particular act which caused injury to the complaining party is indispensable to recovery.” Fitzpatrick v. Henley, 154 Ga. App. 555 (269 SE2d 60) (1980). As to the need to show more than knowledge of the propensity to do harm in one or more specific ways, it must be knowledge of harm of the type actually inflicted. See Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978); Penick v. Grimsley, 130 Ga. App 722 (204 SE2d 510) (1974), and Carter v. Ide, 125 Ga. App. 557 (188 SE2d 275) (1972). Carter held that knowledge of the propensity to attack other animals is not necessarily notice that the dog will attack humans. Here, however, the naturally-fighting dog was being deliberately trained to be vicious by someone whom the jury could find was defendant’s agent. A reasonable inference, at least, could be made that Wayne knew that his training and the demeanor being built into this pit bulldog gave him a dangerous propensity with respect to people, perhaps especially strangers, and not only to boards and dead chickens. He was urging the dog into habits of aggressiveness and attack which common sense says would not be confined to inanimate objects. See 3 Restatement (2d) Torts, § 509, cited in Carter, supra at 558.

Defendant’s motion for directed verdict and subsequent motion for j.n.o.v. were properly denied.

3. (a) Enumerations of Error 10, 13 and 17 complain of the trial court’s instructions to the jury. Although the purported charges are set out, there is no reference to their location in the transcript and no mention of any objection made or where it might be found. This violates Court of Appeals Rule 15 (c) (3) (i) and OCGA § 5-5-24 (a).

(b) Enumeration 12 sets out the instruction, but fails to reference it and fails to show where and if objection was made. Although one page is specifically referred to, there is no objection on that page. This enumeration also fails. Court of Appeals Rule 15 (c) (3) (i) and OCGA § 5-5-24 (a).

(c) Enumeration 15 sets out the objected to instruction without specifying where in the transcript it may be found and references one page which contains no objection to the charge at issue, only a discussion of whether Daimian could be considered an invitee. This ground is not properly presented for appellate consideration.

Even if it were, defense counsel asked both Daimian and Adam Marlow if the purpose of their visit was to purchase game chickens and received affirmative answers. The invitee issue was applicable to the evidence.

4. (a) Enumeration of Error 3 asserts error in admission of certain testimony contended to be hearsay. At the time the testimony was originally offered, defendant’s objection was sustained. Crane v. Gaddis, 224 Ga. 804, 805 (1) (164 SE2d 844) (1968). Defendant subsequently cross-examined the witness about that same subject matter and other testimony to the same effect was introduced, all without further objection by defendant. This shows no error. East Point Ford v. Lingerfelt, 123 Ga. App. 520, 522 (1b) (181 SE2d 713) (1971).

(b) Enumeration 4 contends the testimony of an expert witness for plaintiffs should not have been admitted. No objection on any ground was interposed to his testimony. Eiberger v. West, 165 Ga. App. 559 (1) (301 SE2d 914) (1983).

(c) Enumeration 5 assigns error in the exclusion of a report and the testimony of the witness who prepared that report. It is asserted that this evidence would have shown that plaintiffs made different statements as to what transpired when Daimian Bowen was bitten soon after the incident, as compared with their trial testimony.

The trial court refused to admit the report but offered to let the witness relate what the plaintiffs told him regarding the incident. However, the witness was unable to recall who made the statements which formed the basis of his report. In such circumstances the proffered testimony was hearsay and properly excluded. Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 441 (2) (103 SE2d 138) (1958). See Mitchell v. State, 254 Ga. 353, 355 (5a) (329 SE2d 481) (1985); Coastal Health Svc. v. Rozier, 176 Ga. App. 240, 241 (3) (335 SE2d 712) (1985).

(d) Enumeration 6 assigns error in the admission of photographs of the dog taken over two years after the incident. At the time they were offered, defendant objected on the lack of foundation and the trial court admitted them conditionally subject to the proper foundation being subsequently laid. Defendant did not follow up on his objection.

“[W]hen evidence is admitted provisionally by the court and the proviso is not met by the opposite party it is incumbent upon the movant to again call the matter to the attention of the court and invoke a ruling.” Webb v. Biggers, 71 Ga. App. 90, 92 (2a) (30 SE2d 59) (1944). Accord Bryan v. Barnett, 205 Ga. 94, 97 (3) (52 SE2d 613) (1949).

(e) Enumeration 19 sets out that the trial court erred by failing to grant defendant a new trial pursuant to OCGA § 5-1-1, a non-existent Code section. Defendant contends that the trial was prejudiced by improperly admitted evidence, unspecified. Insofar as he attempts to raise an issue as to the cumulative effect of rulings, such argument falls. Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 352 (9) (270 SE2d 883) (1980).

5. Enumeration 8 states the trial court erred in failing to grant defendant’s motion in limine to exclude any evidence as to his first offender status. Defendant argues that although the court ultimately ruled in his favor, it should have acted more promptly by intervening to prevent the offer of the evidence. The trial court did not rule prior to the offering of the evidence, but it did indicate how it would rule as to the evidence and did promptly so rule when the evidence was actually tendered. Defendant did not insist upon an earlier ruling and cannot complain. See Taylor v. R.O.A. Motors, 114 Ga. App. 671, 675 (1) (152 SE2d 631) (1966).

6. Enumeration 16 asserts the trial court erred by refusing to give three of defendant’s requests to charge. As to each enumeration of error being confined to essentially one ground, see MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1a) (275 SE2d 142) (1980). Nevertheless, these instructions were not relevant to the issues of the case and the trial court correctly refused to give them. Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983).

7. (a) Enumeration 9 alleges the trial court erred in allowing cross-examination of defendant about his son’s burglary conviction and his association with criminals when the son did not testify.

Plaintiffs sought to impeach defendant by proof of a previous contradictory statement. See OCGA § 24-9-83. They introduced his deposition in which he had responded negatively to the question of whether his son Wayne had been convicted of a felony. Defendant admitted his “response was no at the time.” He then answered the question, “Has he been convicted of this burglary charge?” by responding: “He has now, yes.” The court admitted the evidence, over objection, stating that because it showed defendant testified that he had not been convicted and “this shows a conviction,” it would “be up to the jury to consider the date of the deposition and the date of the conviction.” Subsequently, defendant testified on direct examination that his deposition was taken in September 1988 and that his son Wayne was convicted in December 1988. As a change in circumstances had occurred between the time of the statement and the trial, the jury could find that the witness was not impeached.

It does not appear that appellant’s testimony concerning his son’s criminal conviction would have an adverse effect on the jury verdict. This testimony alone does not warrant the reversal of the case.

(b) Enumeration 11 attempts to raise the issue that a charge on impeachment by conviction of a crime involving moral turpitude was error. Defendant points out that the only one impeached by this method was the defendant’s absent son. He argues this caused confusion so that the jury might apply the rule to defendant. While agreeing with the argument in theory, we find no ground for reversal on this basis. Defendant objected to a part of the charge on impeachment but not to the principle in question. OCGA § 5-5-24 (a); A-1 Bonding Svc. v. Hunter, 125 Ga. App. 173, 182 (186 SE2d 566) (1971) (special concurrence by Judge Deen approved in Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976)).

Judgment affirmed.

McMurray, P. J., Banke, P. J., Pope and Cooper, JJ., concur. Carley, C. J., Birdsong, Sognier and Beasley, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 through 6 and in Division 7 (b) but respectfully dissent with respect to Division 7 (a).

The evidence in question was not submitted for the purpose of impeaching Wayne and in fact he never testified. OCGA § 24-9-83 refers to impeachment by contradictory statements previously made by a witness as to matters relevant to his testimony and to the case. This is a mandatory requirement and if the alleged contradictory statement is not relevant then the evidence is not admissible. Grant v. Hart, 197 Ga. 662, 677 (7) (30 SE2d 271) (1944); Hudgins v. Bloodworth & Co., 109 Ga. 197, 198 (1) (34 SE 364) (1899). Further, it is not competent to ask a witness what he had sworn on a former occasion, with a view to impeach him, if his testimony on that occasion is itself inadmissible in evidence. Mitchum v. State, 11 Ga. 615, 635 (8) (1852).

The evidence as to Wayne’s conviction was not relevant to the case and was inadmissible as such. See State v. Rocco, 259 Ga. 463, 467 (1) (384 SE2d 183) (1989). It did not serve to impeach defendant because it had no materiality or bearing on the issues in the case and because it showed that there was at most an appearance of contradiction. In actuality the pre-trial statement and the true circumstances were compatible and not contradictory. A change in circumstances had occurred between the time of statement and the trial.

Because I cannot determine as a matter of law that the admission of the evidence did not adversely affect the verdict, that evidence being that Wayne had committed a burglary, I must conclude that it was harmful error since Wayne’s role vis-a-vis the dog’s disposition was crucial. White v. Taylor, 157 Ga. App. 328, 329 (277 SE2d 321) (1981). The judgment should be reversed.

Decided July 11, 1990

Rehearing denied July 31, 1990 — Cert, applied for.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellant.

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

I am authorized to state that Chief Judge Carley, Judge Birdsong and Judge Sognier join in this opinion.


author: Sognier, Judge. Carley, Chief Judge,

text:
    A90A0158.
    SMOKY, INC. v. McCRAY et al.
    (396 SE2d 794)
   Sognier, Judge.

LeMan McCray and Mary Catherine McCray, as next friends of Julie Ann McCray, brought suit against Smoky, Inc. d/b/a Rocky Pine Ranch to recover damages for injuries incurred by their daughter when she fell off a horse. The jury returned a verdict in favor of the McCrays, and the trial court denied the ranch’s motion for a new trial. This appeal ensued.

Evidence at trial established that Julie Ann McCray was taking a riding lesson conducted by Deirdre Dunn in a riding ring at appellant’s facility. McCray was circling Dunn on a horse controlled by a longe line held by Dunn. Because the longe line regulated the direction of the horse’s movement, McCray was thus able to ride the horse and work on leg strength and balance without touching the reins, although her feet were in the stirrups. Terry Meier, the son of the president of appellant’s facility, and two other boys entered the ring with three ponies, which the evidence established were on halters, and moved to the far end of the ring. The evidence sharply conflicted whether one of the ponies thereupon escaped from Terry’s control as he was adjusting the saddle stirrups or whether Terry, at the behest of his sister, Karen Meier, released the pony in order to play a trick on an equestrienne also working in the far end of the ring. The pony ran to the other end of the ring, startling McCray’s mount. She fell, breaking her arm.

1. Appellant contends the trial court erred by denying its motion for summary judgment made on the basis that an agreement signed by McCray constituted a waiver of all claims against appellant arising out of the use of one of appellant’s horses and accordingly barred appellees’ suit against it as a matter of law. Although appellant presented several grounds for its motion for directed verdict, the matter presented here was not included among those enumerated. Thus, as an issue involving the denial of a motion for summary judgment following the jury’s verdict and entry of judgment thereon, appellant’s enumeration has become moot and will not be considered. Dedousis v. First Nat. Bank of Cobb County, 181 Ga. App. 425 (1) (352 SE2d 577) (1986).

2. We find no merit in appellant’s contention that the trial court erred by allowing appellees to use the deposition of Deirdre Dunn at trial rather than requiring them to call Dunn as a witness. Counsel for appellees informed the trial court that Dunn was not a resident of Cobb County and was out of the county. Even assuming that the trial court’s acceptance of counsel’s statement was not sufficient to constitute a finding that Dunn was not available under OCGA § 9-11-32 (a) (3) (B), we find no evidence the trial court abused its discretion in admitting the deposition under OCGA § 9-11-32 (a) (4), which permits, at the discretion of the trial court, the use of a deposition against a party who was present at its taking, even if the witness is available. Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52, 53-54 (295 SE2d 827) (1982).

3. Appellant asserts numerous errors in the admission by the trial court of hearsay testimony given by Dunn in her deposition. We find meritless appellant’s argument that it was error to allow Dunn to testify as to what Karen Meier had told her. Evidence was adduced which established that Karen was employed by appellant and thus her statement to Dunn was admissible under OCGA §§ 24-3-33 and 24-3-34. Compare Johnston v. Grand Union Co., 189 Ga. App. 270 (1) (375 SE2d 249) (1988). Although Dunn’s testimony did contain hearsay in the form of statements made to her by Terry Meier regarding the reasons Karen Meier gave him for releasing the ponies into the ring (i.e., to startle the other equestrienne), the same information was elicited from Dunn regarding her subsequent conversation with Karen Meier, and it is well established that proof of the same facts by legally admissible evidence renders harmless a prior admission of incompetent or inadmissible evidence. In the Interest of D. S., 176 Ga. App. 482, 485 (3) (336 SE2d 358) (1985).

4. The trial court refused to admit at trial the agreement signed by Julie Ann McCray, which was tendered by appellant for the sole purpose of enabling the jury to determine whether McCray had waived all claims against appellant. Although the trial court had ruled on the matter when it denied appellant’s motion for summary judgment, the trial court took the matter under consideration again at trial. The trial court found that at the time the agreement was executed, McCray was fourteen years old and unaccompanied by any parent or guardian, and that as a contract by a minor for an item not a “necessary” under OCGA § 13-3-20 (b), the agreement was voidable as a matter of law under OCGA § 13-3-20 (a).

We find no error in the trial court’s ruling. “A contract by which an infant [waives] a claim which he may have for damages against another for personal injuries received by the infant is voidable, and may be disaffirmed by the infant. The institution or the maintenance by the infant of a suit against the other contracting party [here, appellant] to recover damages for the injuries sustained by the infant amounts to a disaffirmance by the infant of the contract.” Tharpe v. Cudahy Packing Co., 60 Ga. App. 449, 453 (2) (4 SE2d 49) (1939).

The transcript reveals that appellant specifically declined the trial court’s suggestion to present any other reason why the agreement would be relevant to the issues at trial. Thus, we will not entertain appellant’s argument that the agreement showed that McCray was aware of the potential dangers of horseback riding, since “grounds which may be considered on appeal are limited to those which were urged before the trial court.” (Punctuation and citations omitted.) Carpenter v. Parsons, 186 Ga. App. 3, 5 (3) (366 SE2d 367) (1988).

5. Appellant contends the trial court erred by refusing to give its requested charge on accident that “if you believe that injury to [McCray] was caused by pure accident and [appellant] and [McCray] were both free of fault, then [appellees] cannot recover.” Under appellant’s version of the events, Terry Meier did not bring the pony into the ring to play a prank on another rider nor did he deliberately release the pony. Rather, Terry’s testimony at trial was that he and two others wanted to ride the ponies, that without negligence on Terry’s part his pony pulled away from him after he dismounted to adjust the stirrups, and that when he tried to catch the pony it ran from him to the front part of the ring, where it startled McCray’s mount. The evidence thus conflicted as to Terry’s intent in introducing the ponies into the ring and as to the manner in which the pony escaped. In view of Dunn’s testimony that the ponies were haltered when led into the ring and that she was uncertain whether or not the pony that startled McCray’s horse had freed itself from its halter, a jury question was also presented whether the escaping pony had been properly or negligently tackled.

“The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). While acknowledging that the above jury questions, if resolved in appellant’s favor, would indicate McCray’s fall was not the result of negligence on any party’s fault, the trial court nevertheless refused to charge the jury on the theory of accident. The basis for the ruling was the trial court’s determination that negligence still existed in the case due to the fact that horses and ponies, regardless of the reason for their presence, were allowed into the ring while riding lessons were being conducted on the longe line. However, at trial appellees presented no evidence that merely allowing other horses and ponies into the ring during riding lessons constituted negligence of any sort. Rather, the testimony of Otto Meier, appellant’s president, and Dunn, the riding instructor, indicated that use of the ring by other riders while lessons were being conducted was standard practice, and indeed it appears from the evidence that another equestrienne was working in the ring during McCray’s lesson without disturbing Dunn or McCray before Terry and his friends entered with the ponies.

There is no doubt that appellant’s requested charge on accident, including the concept that the unexpected event occurred even though both parties were “free of fault,” constituted a correct statement of the defense of legal accident. See Cohran v. Douglasville &c. Prods., 153 Ga. App. 8, 10-11 (1) (264 SE2d 507) (1980). Thus, the requested charge was correct, accurate, and adjusted to the law, the evidence in the case, and the basic principle behind appellant’s defense. See Gibbs v. First Fed. &c. Assoc., 161 Ga. App. 27 (1) (289 SE2d 1) (1982). “It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. [Cits.]” Feathers v. Wilson, 157 Ga. App. 753 (1) (278 SE2d 434) (1981). “[A] refusal to give a charge is error if the charge is a correct statement of the law and applicable to the issues involved. [Cit.]” Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 641 (5) (385 SE2d 746) (1989). See also Burson v. Copeland, 160 Ga. App. 481 (1) (287 SE2d 386) (1981). Given that the charge requested was correct and appropriate, the question thus becomes whether the failure to give this charge was reversible error.

This court has held that failure to give a requested charge on accident is harmless error where a full and fair charge on the general principles of negligence law is given. Benson v. Hunter, 184 Ga. App. 40 (360 SE2d 612) (1987); Glenn McClendon &c. Co. v. Williams, 183 Ga. App. 508, 511-512 (5) (359 SE2d 351) (1987). It is not enough to distinguish those cases by noting that they involved “considerable question whether [the evidence therein] would be sufficient to authorize a charge on legal accident.” Glenn McClendon &c. Co., supra at 511 (5); see Benson, supra at 40. Rather, the holding in those cases must be examined to determine whether the rationale therein applies to the case sub judice where the charge given, while covering general negligence principles, never once referenced the word “accident.”

In 1965, Sec. 17, Ga. L. 1965, p. 18 (as amended by Ga. L. 1966, pp. 493-498) replaced Ga. Code Ann. § 70-207 (Ga. L. 1853-4, p. 46; 1878-9, p. 150; 1937, p. 592). The former statute had provided that “[i]n any court of record ... a new trial may be granted when the presiding judge may deliver an erroneous charge to the jury ... or refuse to give a pertinent legal charge in the language requested, when the charge so requested shall be submitted in writing,” and had been restrictively interpreted to mandate the giving of a charge “in the exact language” requested. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 18 (3) (195 SE2d 417) (1973). As a result, in order to avoid reversible error trial courts were required to give “numerous unnecessary and redundant requests” in their instructions to juries. Gates v. Southern R. Co., 118 Ga. App. 201, 203 (3) (a) (162 SE2d 893) (1968).

Relying upon the amendment of the statute (which subsequently became OCGA § 5-5-24), the appellate courts rejected the older case law placing this onerous and impractical requirement on trial courts. See Gates; Continental Cas. Co., supra. However, it is apparent by reading OCGA § 5-5-24 that nothing therein can be construed as requiring the appellate courts to hold as harmless error the trial court’s failure to give an apt, legal, and properly requested charge where the general principles behind the charge are “sufficiently covered” elsewhere. In other words, the “sufficiently covered elsewhere” axiom as applied in post-1965 opinions does not derive from the change in the statutory law but rather was promulgated for policy reasons by the appellate courts to abolish the disfavored practice derived from the language of the former statute.

However, while eliminating the burdensome and impractical requirement, the opinions following the amendment failed to resolve the problem, addressed by the Supreme Court in Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217, 225-234 (4) (17 SE2d 825) (1941), presented by two conflicting lines of opinions: On one hand litigants are informed that they cannot object to an abbreviated charge on the law applicable to their case unless they properly present to the trial court legally flawless and factually appropriate instructions, see, e.g., Royal v. Davis Hauling Co., 164 Ga. App. 409, 410 (2) (297 SE2d 333) (1982); State Mut. Ins. Co. v. Sullens, 147 Ga. App. 59, 62 (3) (248 SE2d 18) (1978), but on the other hand where the litigant leaps all the hurdles and presents the trial court with a proper charge, litigants’ objections that the trial court erred by failing to give the charge are rejected if the principle involved is “adequately covered” elsewhere in the trial court’s charges. See, e.g., American Family Life Assur. Co. v. Queen, 171 Ga. App. 870, 875 (12) (321 SE2d 750) (1984); Hill v. Hosp. Auth., 137 Ga. App. 633, 640 (5) (224 SE2d 739) (1976). Although as a result of the statutory amendment this court is no longer compelled to require charges be given in the exact language of the request (the result reached in Werk, supra), neither is this court compelled by the statutory language in OCGA § 5-5-24 or the cases interpreting it and its post-1965 predecessor to go to the opposite extreme and authorize trial courts to reject useful and illuminating charges designed to aid the jury in arriving at a just and legal verdict merely because the trial court was able to condense the “general principles” involved in the case into a handful of cryptic, terse sentences.

The policy reason behind abandoning the pre-1965 position of giving too many charges does not justify moving to the diametrically opposite extreme of giving too few charges. The days when error was “more likely to exist in a too liberal giving of redundant requests than from the exercising of a restrictive discretion in charging them,” Gates, supra at 204 (3) (a), are gone and should not be replaced, in true “backlash” fashion, by the proffered version of the “sufficiently covered elsewhere” axiom urged by the dissent, whereby trial courts are encouraged to refuse appropriate clarifying charges researched by the parties most familiar with the unique aspects of a particular case and individualized to address those aspects, and instead to prefer standardized charges, promulgated as general reference materials, which are incapable of reflecting the unique characteristics each lawsuit presents. The encouragement to the trial courts to pare down jury instructions to their most abbreviated form is obvious: the less charged, the better the chance to avoid reversal on appeal. The dissent, by asserting that the “sufficiently covered elsewhere” axiom applies in the case at bar, would reinforce the “less is better” attitude and encourage trial courts to continue a practice which perverts instructions from their true purpose as “full and fair” charges on every aspect of law applicable in a case, see Benson, supra, into abstruse summaries of “general principles” presented in their most encapsulated, reversal-proof form.

Case law has now firmly established that “[a] party is not entitled to have all of his requested charges given merely because he requests them.” Lenny’s Number Two v. Echols, 192 Ga. App. 371, 374 (3) (384 SE2d 898) (1989). It is equally well established that it is not error for the trial court to refuse to give a requested charge in the precise language requested where the principles embodied therein are substantially covered by the charge. See Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 191-192 (1) (345 SE2d 875) (1986). But the learned jurists who comprise the bench in this state must remember that charges are submitted to the jury so that the jury can apply the law, and accordingly the proper charges to give are those that materially aid the jury in accomplishing that goal. See Thompson v. Thompson, 77 Ga. 692, 698 (2) (3 SE 261) (1887). Thus, in determining whether a requested charge is “substantially covered” by a standardized “general principles” charge, the charge must be reviewed from the perspective of the average juror, unschooled in law and hence unable to grasp all the shades and nuances which the law may present in an individual case solely from an abbreviated discussion of the “general principles” involved. Since it is the jury, not the trial court or the appellate courts, that applies the law, the better policy is to tailor charges to it, not to the reviewing courts.

Parties before a trial court research the law and proffer suggested charges in order to expand upon the unique aspects present in the case. “It is only in exceptional instances that the lawyer who is conducting his side of the trial does not know more about that particular case than does the judge. He should, and generally does. It is to be expected that he has thoroughly prepared it, knows the facts, and has devoted his industry to the study of the particular principles of law involved, and their relation and application to the pleadings and the proofs. To the judge, able and experienced though he be, the cause submitted is only one of many on the docket awaiting disposition, as to which he knows nothing of the issues save as they develop on the trial; ... he may find it more convenient, and he usually does, to instruct the jury only by giving them in charge the general, abstract principles which are involved. That the principle of law embodied in the request may have been covered by the general charge may not always be, even from a practical standpoint, a sufficient answer for a refusal of the request.” Werk, supra at 233-234 (4).

Appellant’s properly requested, correct, pertinent, and apt charge on legal accident was refused by the trial court not because the trial court thought the principles behind such a charge were included in the instructions it intended to charge the jury, but because the trial court erroneously concluded the evidence in the case did not support the giving of the requested charge. As a result of the trial court’s erroneous construction of the evidence, a charge was rejected which serves the salutary effect of disabusing jurors of “the charitable though misguided notion that misfortune is itself compensable, regardless of fault.” Benson v. Hunter, 184 Ga. App. 40, 41 (360 SE2d 612) (1987) (Banke, P. J., dissenting). Keeping in mind that the sufficiency of a charge is weighed from the perspective of the average juror, not the reviewing court, a charge generally discussing duty, breach of duty, and proximate cause cannot be considered to have covered sufficiently the principles behind appellant’s requested charge in view of the fact that the charge as given did not once use the word “accident” or otherwise explain how the idea behind “accident” may have been germane in the case sub judice. Furthermore, considering the predilection of juries to award damages merely because a plaintiff has been injured, as discussed by Presiding Judge Banke in his dissent in Benson, supra, a charge on accident would seem particularly valuable to insure a jury’s fair and impartial consideration of the law applicable to a case. Therefore, the trial court improperly rejected the requested charge. See generally Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 316-317 (9) (271 SE2d 227) (1980).

6. Since there was some evidence adduced at trial from which the jury could have found that an employee of appellant wilfully introduced into the riding ring the loose and uncontrolled pony that startled McCray’s mount and caused her to fall, we find no error in the trial court’s denial of appellant’s motion for a directed verdict. See generally Leader Nat. Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 119 (5) (375 SE2d 231) (1988).

7. In view of our holding in Division 5, supra, we need not address appellant’s enumeration contending the trial court erred by denying its motion for a new trial based on the excessiveness of the verdict.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Banke, P. J., Birdsong, Beasley and Cooper, JJ., concur. Carley, C. J., Deen, P. J., and Pope, J., dissent.

Carley, Chief Judge,

dissenting.

I cannot concur with the majority’s reversal of the judgment of the trial court on the basis set forth in Division 5 of the opinion. There is some doubt that the majority is correct in its conclusion that the requested charge was a correct statement of the defense of legal accident. See Cohran v. Douglasville Concrete Prods., 153 Ga. App. 8, 10-11 (1) (264 SE2d 507) (1980); Bush v. Skelton, 91 Ga. App. 83 (84 SE2d 835) (1954). However, even assuming that the requested charge was a correct statement of that principle, I cannot agree with the majority’s conclusion that the trial court committed reversible error in failing to give that requested charge.

As recognized by the majority, this Court has previously held that where the trial court otherwise gives a full and fair charge on the general principles of negligence law, the failure to give a request to charge on the defense of legal accident does not authorize reversal of the judgment entered on the verdict. Benson v. Hunter, 184 Ga. App. 40 (360 SE2d 612) (1987); Glenn McClendon &c. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987). Notwithstanding the majority’s expansive discussion of the issue, the simple truth of the matter is that Benson v. Hunter, supra, is a whole court case and is controlling here unless overruled. OCGA § 15-3-1 (d). As in Benson, “ ‘[t]he record in this case shows that the trial court gave a full and fair charge on the general principles of negligence law, instructing the jury that [appellant] could not be found liable in the absence of [appellant’s employees’] negligence. In view of the charge as given by the trial court, the failure to give the additional requested charge on the merely “elaborative” defense of legal accident was, at most, harmless error.’ [Cit.]” Benson v. Hunter, supra. Either Benson is correct and the failure of a trial court to give a requested charge on the merely “elaborative” defense of legal accident can be deemed to be harmless error or the majority in the instant case is correct and such a failure cannot be so deemed. Under the majority’s rationale, this case must now be retried because the trial court failed to instruct the jury that there could be no recovery if the injury occurred without being caused by the negligence of either appellees or appellant. However, the trial court’s instructions already contain a charge to the effect that appellees cannot recover in the absence of negligence on the part of appellant. In my opinion, it defies logic to suggest that the failure to charge this principle twice warrants a retrial of this case. As we said in another whole court case, “it has long been recognized that [legal accident] is not a separate defense but is merely ‘elaborative’ of general principles of negligence law. [Cit.]” Chadwick v. Miller, 169 Ga. App. 338, 342 (1) (312 SE2d 835) (1983). I believe that Benson was correctly decided and that the judgment of the trial court in the instant case should be affirmed. Hopefully, the instant case will provide the Supreme Court with a vehicle for deciding an issue which has now resulted in two diametrically opposing whole court decisions by this court within a three-year period. The question clearly needs final resolution by the Supreme Court since it is apparent that no litigant in this state can have any assurance what this court’s answer will be in any given case. For the above reasons, I must respectfully dissent.

Decided July 31, 1990

Rehearing denied August 14, 1990 — Cert, applied for.

Charles J. Vrono, for appellant.

Awtrey & Parker, Toby B. Prodgers, for appellees.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.


author: Deen, Presiding Judge. Pope, Judge, Beasley, Judge,

text:
    A90A0400.
    CARREKER v. HARPER.
    (396 SE2d 587)
   Deen, Presiding Judge.

Plaintiff, Carol Carreker, appeals from the jury verdict and judgment entered thereon in favor of defendant Dr. James E. Harper in this medical malpractice case.

1. Plaintiff alleges that defendant was negligent both in failing to diagnose accurately her condition (defendant diagnosed plaintiff as suffering from viral gastroenteritis when in fact she had appendicitis) and in failing to provide adequate and reasonable follow-up care and instructions. Defendant contends, however, that plaintiff failed to disclose fully all information relevant to her condition at the time he examined her and to exercise ordinary care for her own safety by seeking additional medical care when her condition did not improve and subsequently worsened. It is these actions that, according to defendant, authorized the charges on contributory and comparative negligence. We agree.

The charge of comparative negligence regarding plaintiff’s nondisclosure of certain symptoms and medical history was correct. Hayes v. Hoffman, 164 Ga. App. 236 (296 SE2d 216) (1982). It was for the jury to determine whether the plaintiff exercised ordinary care for her own protection, and the record provides adequate facts which support the jury’s finding of comparative negligence, which was the proximate cause of the damages complained of.

Additionally, the lower court’s comparative negligence charge was correct as to the post-diagnosis negligence. The appellant asserts that the evidence does not warrant a charge on comparative negligence. However, in McMullen v. Vaughan, 138 Ga. App. 718 (227 SE2d 440) (1976), where the plaintiff’s post-operative negligence was ultimately determined to be the cause of his injury, this court held that the doctrine of comparative negligence applies “[w]here the evidence raises an issue of whether negligence by the plaintiff joins with the negligence of the defendant in proximately causing the injury. ...” Id. at 720. In the case at bar, there was sufficient evidence for the jury to determine that the plaintiff’s post-diagnosis conduct barred her recovery. On appellate review, this court must construe the evidence in a manner most favorable to affirming the jury’s finding; thus the trial court’s decision should be affirmed.

2. Plaintiff next contends that the trial court improperly restricted her cross-examination of the defendant-expert because it refused to allow plaintiff to cross-examine defendant with the use of a medical treatise with which defendant was unfamiliar. “While ... an expert witness may be cross-examined by reference to a standard treatise in the field of the expert’s special knowledge to test his credibility, ... an expert cannot be cross-examined upon a treatise which has not been proved to be a standard treatise on the subject.” State Highway Dept. v. Willis, 106 Ga. App. 821, 824 (128 SE2d 351) (1962). Plaintiff contends on appeal that the testimony of her expert demonstrated that the treatise sought to be used was authoritative and thus she was entitled to use the treatise to cross-examine the defendant even if he himself was not familiar with the text. Pretermitting the issue of whether the treatise sought to be used here had been shown to be a standard, reliable treatise, under the facts of this case we find no grounds for reversal. The record shows that following the trial court’s ruling that the plaintiff must first lay a foundation for use of the treatise, counsel responded “Okay, your honor.” Counsel then asked defendant two questions concerning his knowledge of the book, and finding he was unfamiliar with the text, abandoned the line of questioning entirely, without invoking a further ruling from the trial court. “ ‘No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.’ [Cit.]” Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989). See also State Highway Dept. v. Willis, supra at (2).

3. We have considered plaintiff’s remaining enumerations of error and find them to be without merit. Specifically, the trial court did not err in refusing to allow plaintiff to cross-examine defendant by using charts of other patients he had treated. Likewise, the trial court did not err in refusing to allow plaintiff to cross-examine the defendant or his expert about the absence at trial of another witness previously identified by defendant as a potential expert witness in his behalf.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Birdsong and Sognier, JJ., concur. Banke, P. J., Pope, Beasley and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I dissent as to Division 1, but concur fully in Divisions 2 and 3.

Ordinarily, “questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection, ... are to be decided by a jury.” (Citation and punctuation omitted.) Tisdale v. Johnson, 177 Ga. App. 487, 488 (339 SE2d 764) (1986). However, in this case I agree with plaintiff that the charges on contributory and comparative negligence were not authorized.

Firstly, I do not believe that plaintiff’s alleged failure to disclose certain information about her condition constituted negligence in the case at bar. Distilled to its essence, defendant’s argument amounts to but one conclusion, to wit, that plaintiff should have been able either to diagnose herself, or at a minimum, should have been able to determine what was or was not pertinent information concerning her illness. This the law does not require. “[A patient is] under no general duty to diagnose her own condition or to volunteer information.” Mackey v. Greenview Hosp., 587 SW2d 249, 255 (Ky. App. 1979), cited in Hawkins v. Greenberg, 159 Ga. App. 302, 308-309 (283 SE2d 301) (1981). See also 70 CJS 483, Physicians & Surgeons, § 80 (a). Compare Haynes v. Hoffman, 164 Ga. App. 236 (2) (296 SE2d 216) (1982), in which this court held that a patient’s failure to disclose known drug allergies, after being specifically questioned about allergies by the defendant/doctor, would authorize a charge on contributory negligence.

Although somewhat more problematic, I also believe that the evidence concerning plaintiff’s failure to seek additional medical care care, did not, under the facts of this case, authorize the complained of charges. The evidence presented at trial shows plaintiff was informed she should follow-up with another physician in five or six days or in a shorter period if her symptoms persisted or worsened. Plaintiff was also informed she should “recover completely in 2-3 days” and was advised to be rechecked if she suffered sudden worsening of abdominal pain, dizziness or fainting, persistent vomiting or if blood appeared in vomitus or stool. The record shows that plaintiff’s condition did not dramatically worsen until Wednesday, approximately two days after being examined by defendant. At that time plaintiff did seek additional medical care, by calling an ambulance, but decided after talking with emergency medical personnel, who reviewed the instructions given to her by defendant, not to be transported to the hospital at that time. However, approximately five hours later, at 4:45 a.m; on Thursday morning, another ambulance was summoned and plaintiff was transported to the hospital where she was diagnosed as suffering from shock and diffuse peritonitis caused by a ruptured appendix. The record shows, therefore, that plaintiff sought additional medical treatment less than seventy-two hours after being treated by defendant, and that she acted in accordance with the instructions given to her in seeking follow-up medical care.

This case is thus distinguishable from those in which we have held that a charge on contributory negligence was authorized by evidence showing that the plaintiff/patient failed to follow post-treatment or post-operative instructions. For example, in McMullen v. Vaughn, 138 Ga. App. 718, 720 (2) (227 SE2d 440) (1976), this court held that a charge on comparative negligence was authorized by evidence showing that plaintiff failed to perform prescribed post-operative exercises. Likewise, in Anglin v. Grisamore, 192 Ga. App. 704 (1) (386 SE2d 52) (1989), the evidence showed without dispute that plaintiff did not benefit as intended from the surgical procedure designed to help her lose weight because of her inability or unwillingness to follow post-operative instructions. Such, in my opinion, was not the situation in the case at bar.

“A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to the [plaintiff], and is error requiring the grant of a new trial.” (Citations and punctuation omitted.) Koppar Corp. v. Robertson, 186 Ga. App. 856, 858 (1) (368 SE2d 807) (1988). In my opinion the charge on contributory negligence was harmful error in this case; consequently, the judgment should be reversed and the case remanded for a new trial. Accord Overstreet v. Nickelsen, 170 Ga. App. 539, 540 (1) (317 SE2d 583) (1984).

Decided July 31, 1990

Rehearing denied August 20, 1990 — Cert, applied for.

Kilpatrick & Cody, Alan R. Perry, Jr., Doffermyre, Shields & Canfield, Robert E. Shields, for appellant.

Long, Weinberg, Ansley & Wheeler, Roger Mills, Glen E. Kushel, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Cooper join in this dissent.

Beasley, Judge,

dissenting.

I agree with the dissent as to Division 1. I concur in Division 2 of the majority opinion, but I do not concur in all the rulings on evidentiary questions made in Division 3.


author: Pope, Judge.

text:
    A90A0542.
    FORT OGLETHORPE ASSOCIATES II, LTD. v. HAILS CONSTRUCTION COMPANY OF GEORGIA et al.
    (396 SE2d 585)
   Pope, Judge.

Plaintiff Fort Oglethorpe Associates II, Ltd., is the owner of a shopping center. Plaintiff brought suit against defendants, the general contractor for construction of the shopping center and the subcontractor for the roof of that portion of the project leased to a department store, for damages arising out of leaks in the roof. Plaintiff alleged breach of contract and breach of warranty against the general contractor and alleged negligent construction against both the general contractor and the subcontractor. The trial court granted summary judgment to defendants on each of these claims and plaintiff appeals.

1. A claim on a written contract must be brought within six years after the contract becomes due and payable. OCGA § 9-3-24. Even though the department store space was completed and occupied earlier, the record shows the date of substantial completion of the entire project was December 12, 1979. Thus, the latest date on which the contract could be considered “due and payable” is December 12, 1979. The period of limitation on a construction contract commences on the date the work was substantially complete. Mullins v. Wheatley Grading Contractors, 184 Ga. App. 119 (2) (361 SE2d 10) (1987); Owen v. Mobley Constr. Co., 171 Ga. App. 462 (1) (320 SE2d 255) (1984); Space Leasing Associates v. Atlantic Building Systems, 144 Ga. App. 320 (2) (241 SE2d 438) (1977). However, plaintiff’s lawsuit was not filed until June 27, 1986, more than six years after the period of limitation commenced. Thus, summary judgment was properly granted as to plaintiff’s claim for breach of contract against the general contractor.

2. Plaintiff’s claim for breach of warranty against the general contractor is also barred by the six-year statute of limitation for matters arising out of contract. The construction contract included a one-year warranty for construction defects. According to the printed language of the contract, the warranty extended for a period of one year from the date of substantial completion. However, by typewritten addition to the printed contract, the contractor agreed to provide the owner with a written warranty agreement extending twelve months from the date of “substantial completion or occupancy, whichever occurs first.” Construing these two provisions together, the typewritten terms govern over the pre-printed terms. See OCGA § 13-2-2 (4) and (7).

While there is some dispute over the date the premises in question were occupied, both parties agree that the department store was occupied prior to the date of substantial completion of the entire project. We reject plaintiff’s argument that the date of occupancy on which the warranty commenced to run was the date on which the entire project was completed for occupancy. The record shows the roof for the department store was constructed under a separate set of specifications and that the department store was a separate and identifiable portion of the shopping center project as a whole. The latest date on which the warranty for the department store roof would have commenced is the date of the store’s grand opening, October 29, 1979. The one-year warranty expired, at the latest, on October 28, 1980.

The record reflects that by letter dated December 2, 1980, the general contractor refused plaintiff’s request for repairs to the roof on the ground that the one-year warranty had already expired. Although the letter does not refer to the date the leak at issue in the letter occurred, the record shows the leak in question occurred in early December, after the one-year warranty had expired in October. All previous complaints had been reported prior to the expiration of the warranty period and were repaired under the warranty. However, the December complaint and any subsequent claims were not covered under the warranty and the contractor was entitled to summary judgment.

3. Summary judgment was also properly granted as to plaintiff’s claims in negligence against both the general contractor and the subcontractor. An action for negligent damage to real property must be brought within four years after the right of action accrues. OCGA § 9-3-30. Plaintiff argues that its action in negligence is not time barred because an issue of fact remains as to when it discovered the roof was negligently constructed and because the action was brought within eight years after substantial completion as provided by the statute of repose for construction cases, OCGA § 9-3-51. However, the Georgia Supreme Court has ruled that the tolling of a period of limitation by the discovery rule is confined to cases involving bodily harm. Corporation of Mercer Univ. v. National Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988). “An action under OCGA § 9-3-30 must be brought within four years of substantial completion.” Id. at 366.

Decided July 26, 1990

Rehearing denied September 4, 1990 — Cert, applied for.

Phillips, Hinchey & Reid, George C. Reid, Stephen G. Lowe, for appellant.

Greene, Buckley, DeRieux & Jones, Margaret L. Milroy, Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Michael A. Caldwell, Steven J. Misner, for appellees.

We reject plaintiff’s argument that the Mercer case does not apply to a case, such as this one, where a statute of repose applies. The purpose of the statute of repose is to impose an outside limit on the bringing of lawsuits which are otherwise brought within the applicable statutory period after the action has accrued. See OCGA § 9-3-53. The Georgia courts have never interpreted the statute of repose for construction cases as extending the otherwise applicable period of limitation. “It is clear from a reading of [OCGA § 9-3-53] that the legislature never intended [OCGA § 9-3-51] to establish a new eight year statute of limitation in place of the two, four and six years statutes that may be applicable depending on the cause of action alleged.” Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 428 (241 SE2d 184) (1977). Thus, the discovery rule does not toll the limitation period either for plaintiff’s negligence claim or its breach of contract claim.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A90A0754.
    LAMB v. THE STATE.
    (396 SE2d 497)
   Birdsong, Judge.

Nathaniel Lamb appeals from his conviction of rape. Held:

1. Lamb contends that the evidence was insufficient to support a conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The evidence showed that the fourteen-year-old victim had just returned home from school when Lamb, her step-grandfather, came to the door and on a pretext, got the victim to enter the bedroom. Lamb followed her and pushed her onto the bed. Pulling down her pants and underwear, he forcibly “put his penis inside [her] vagina.” The victim did not tell her mother because she had previously complained about Lamb molesting her over a period of years and her mother did not believe her. That night the victim experienced severe pain, but let her mother think she was having severe menstrual cramps. The mother, testifying for the defense, corroborated the victim’s testimony by recalling that the victim had a bad case of cramps at that time. About four weeks later, a school coach approached the victim because she had noticed a change in her demeanor, and the victim told her what had happened. The victim was examined by a physician at Grady Hospital. The doctor testified at trial that the victim’s hymen was not intact and that he could not rule out that she had had forcible sex, although there were no bruises or contusions at the time he examined her.

Appellant argues that the victim’s testimony was not credible because she had a history of fighting at school and running away from home, and her reputation for truthfulness was not good. However, “[t]he victim’s testimony that the sexual acts were committed against her will was sufficient to support the appellant’s conviction of rape, the issue of her credibility being for the jury to decide. [Cit.] Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient to enable a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, [supra].” Holt v. State, 192 Ga. App. 708-709 (1) (385 SE2d 787). Accord Mathis v. State, 192 Ga. App. 772 (1) (386 SE2d 532).

2. During cross-examination of the examining physician as to whether he was aware of any psychological problems the victim might have, defense counsel asked: “If she had a neurological deficit or a neurological problem or psychiatric problem, could these allegations have been fabricated?” The witness gave an affirmative reply and the State objected, asserting that the question called for a comment on the credibility of the victim. The trial court sustained the objection on the ground that it called for “such a great degree of speculation.” Appellant complains that this ruling was error since it had been shown that the victim had “mental problems” and the question was only hypothetical; and that this court is bound by Keri v. State, 179 Ga. App. 664, 667 (1) (347 SE2d 236), “where the State was allowed to do the same thing.”

We do not agree. First, at the time this question was posed to the witness, no showing had been made that the victim had any mental problems, and indeed, no showing was ever made of any problems other than her fight with some classmates and her running away from home several times. Second, Keri v. State is not controlling here. In that case we found that the testimony of a qualified expert witness in the area of abused children was properly admitted because it was helpful to the jury, and her opinion that she believed the accusations made by the victims had first been introduced by defense counsel. The witness here, who was not qualified as an expert on neurological or psychiatric problems, admittedly had no knowledge of the victim’s mental state. In any event, expert opinion testimony on issues properly decided by the jury should be admitted only where the conclusion of the expert is one which the jury would not ordinarily be able to draw for themselves, or is “ ‘beyond the ken of the average layman.’ [Cit.]” Allison v. State, 256 Ga. 851, 852 (3) (353 SE2d 805). “Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim’s truthfulness. [Cits.]” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256). Accord Jones v. State, 232 Ga. 762, 764 (2) (208 SE2d 850); Norris v. State, 258 Ga. 889 (1) (376 SE2d 653).

Decided June 25, 1990

Rehearing denied September 4, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan, Desiree L. Sutton, Assistant District Attorneys, for appellee.

3. Appellant assigns as error the jury instruction on alibi, claiming that it was impermissibly burden shifting and that his orally requested charge should have been given in its stead. However, the language complained of was expressly approved by this court in Ross v. State, 192 Ga. App. 65 (5) (383 SE2d 627), and presents no basis for reversal. In addition, “[tjhis court has held that where there has been no written request to charge, failure to give the charge is not error. [Cits.]” Arnold v. State, 163 Ga. App. 94, 96 (4) (292 SE2d 891). See also Billups v. State, 236 Ga. 922 (1) (225 SE2d 887).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1169.
    MOORE v. SINCLAIR et al.
    (396 SE2d 557)
   Birdsong, Judge.

This appeal follows a defendants’ verdict in a lawsuit arising from a car/tractor-trailer collision. Appellant Moore, the car’s driver, sued Sinclair, the truck’s driver, the trucking company that employed him, and the trucking company’s insurer, for damages resulting from her car being struck from the rear by Sinclair’s tractor-trailer. Additionally, Moore sought damages from the trucking company for hiring and retaining a person with Sinclair’s driving record.

The appellees admitted that Sinclair was responsible for the collision, and that the trucking company was responsible for his actions under respondeat superior, but denied liability because they contended that Moore’s physical condition was not caused by the collision. Instead, they asserted that her disability was caused by pre-existing medical conditions (spina bifida, scoliosis, and a tethered spinal cord).

To prevent evidence of Sinclair’s driving record — relevant to Moore’s claim against the trucking company for employing Sinclair — from prejudicing the defense of the other claims against Sinclair and his employer, the trial court bifurcated the trial. Shortly before the scheduled start of the trial, however, the trial court allowed the appellees’ counsel to withdraw from the case and then granted appellees a continuance. To prevent appellees from gaining an advantage from the delay, however, the trial court directed that only evidence reflected in the pretrial order and information provided previously regarding expert witnesses could be used at the trial. Ultimately, a defendants’ verdict on liability was returned and there was no second proceeding.

Moore filed' a motion for a new trial, but did not support her motion with a complete transcript of the trial. At the appellees’ request, however, the trial court ordered Moore to obtain, with minor exceptions, a full transcript of the trial. Although Moore agreed to comply with the court’s order, she did not, and the trial court ultimately granted the appellees’ motion to dismiss her motion for new trial. Within 30 days of that decision, Moore filed a notice of appeal. Appellees moved to dismiss the appeal in the trial court because they maintained that the appeal was untimely since the motion for new trial was not properly supported by the transcript, and thus the motion was not sufficient to entitle Moore to the usual extension of time in which to file a notice of appeal. That motion was denied, but appellees have renewed their motion in this court.

Moore contends that the trial court erred by preventing her from cross-examining Sinclair about lies he allegedly told in his deposition, erred by admitting in evidence the diagnosis of a non-testifying doctor, erred by permitting two experts to give testimony which exceeded the trial court’s limitations, erred by allowing Moore to be cross-examined about her marital status when her child was born, and erred by incorrectly charging the jury on the burden of proof. Held:

1. The appellees’ motion to dismiss the appeal is denied. A movant for a new trial is not required to file the trial transcript in support of the motion. Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 23 (363 SE2d 265). Our law requires only that appellants file the transcript within 30 days after the notice of appeal is filed. Whitton v. State, 174 Ga. App. 634, 635 (331 SE2d 10). Although OCGA § 5-5-40 (c) gives trial courts discretion to delay consideration of such motions when the transcript is necessary to decide the motion, the trial court can decide the motion without a transcript. Therefore, we do not find that Moore’s motion for new trial was inherently insufficient to secure the extension of time in which to file her notice of appeal. OCGA § 5-6-38 (a). Accordingly, this case does not meet the criteria for dismissal of an appeal. See OCGA § 5-6-48 (b).

Nevertheless, the trial court did not exceed its authority by dismissing the motion for new trial. A trial court has discretion to set the time for filing of the transcript of the evidence (Diamond v. Liberty Nat. Bank, 228 Ga. 533, 535 (186 SE2d 741)), and dismissal of a motion for new trial is appropriate when the transcript is necessary to consideration of the motion, and the movant has made no reasonable effort to secure it. Miller v. Parks, 124 Ga. App. 4, 5 (183 SE2d 88). Further, after the trial court ordered the full transcript to be prepared, Moore acquiesced in that ruling and yet failed to comply with the trial court’s discretion.

2. Moore contends that the trial court erred by limiting her impeachment of Sinclair. Moore alleges that Sinclair was asked “you didn’t tell the truth in your deposition either, about your [traffic] citations, did you,” that Sinclair objected because the court had bifurcated the trial for the sole reason of keeping Sinclair’s driving record from prejudicing the jury’s determination of negligence, and that the trial court sustained that objection. This allegation misstates the question asked, the objection, and the trial court’s ruling.

The transcript shows that the questions actually posed were: “Right? How many traffic citations that you had there, and how many traffic citations that you had for Mr. Kallman [sic]? And you didn’t tell the truth in your deposition, either, about your citations, did you?” The actual objection was: “Your Honor, I will object to that. That’s highly improper. That’s not proper. If he’s attempting to impeach him, he’s trying to do something by the back door that he cannot do directly.” The actual ruling was: “He’s already answered the question, saying that — I’m going to sustain that objection.” Then, after clarifying that “[t]he objection was that [he] shouldn’t proceed along that line,” Moore’s attorney stated: “All right, I’ll do it. . . the hard way.” Because Sinclair really was asked four questions, and the two questions about the number of traffic citations sought information not then admissible, the trial court did not err by sustaining the objection. See OCGA § 24-2-2. Moreover, even if the rulings were erroneous, Moore cannot complain because she waived the error by acquiescing in the ruling. See Ewing v. Johnston, 175 Ga. App. 760 (334 SE2d 703).

Further, the transcript shows that after Moore asked other questions about Sinclair’s driving record — not whether Sinclair had lied at his deposition — and Sinclair objected, the trial court ruled: “I don’t think the driving record is admissible at this time. Fm going to sustain the objection.” Thereafter, the trial court directed that Moore make a proffer of the evidence he sought to introduce: “Ask him — ask him the questions that you intend to ask before the jury.” After Moore did so, the trial court, in effect, denied Sinclair’s objection, and ruled that he would allow the questions that Moore had asked in her proffer. The transcript shows, however, that despite the error asserted here, no objections were sustained to questions about Sinclair lying in his deposition. Since this issue was not raised in the trial court, Moore cannot now complain that Sinclair was not allowed to answer questions he was not asked. Ocilla Truck &c. Co. v. Nolan, 124 Ga. App. 417 (184 SE2d 48).

Moreover, although Moore argues that the trial court erred by bifurcating the proceedings, this matter was not enumerated as error and is not included within any error enumerated. Since a party may not urge an error not enumerated through shifting or mending her hold, we cannot consider this argument. City of College Park v. Georgia Power Co., 188 Ga. App. 223-224 (372 SE2d 493); Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272).

3. Moore also contends that the trial court erred by admitting in evidence the diagnosis of a physician who did not testify. The transcript shows that during the testimony of another physician, Sinclair asked him to read from Moore’s medical records the diagnosis of the emergency room physician who treated Moore after the collision, and that after Moore’s objection was overruled, the physician read that Moore had suffered a “back strain.” Assuming this to be error, in the context of this case, we find any error harmless. There was no issue about whether Moore, in fact, sustained a back strain, and this single statement in the course of the entire medical testimony in this case could not have materially affected the verdict. OCGA § 9-11-61; Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 546 (309 SE2d 816).

4. Moore asserts that the trial court erred by allowing two experts to testify about matters which were not set forth in the information regarding experts, and thus the testimony violated the trial court’s order that the appellees were “prohibited from using at trial any expert witness or expert opinion not specifically set out in their provision of information regarding experts.” As appellees used no expert witnesses not so identified, the question here is whether any testimony of the two experts constituted expert opinions not set out in the information regarding the experts or the pretrial order.

The information regarding experts provided in broad terms the expected testimony of the experts. In general, Moore was informed that the two experts would testify that her condition was the result of her pre-existing medical conditions and was not the result of any injury sustained in the collision. Naturally, the information did not contain each statement the experts would make in their testimony, and did not state every opinion the expert did not hold, or the reasons why the experts did not hold certain opinions. Generally, the testimony Moore complains of was statements by the experts explaining or defending their opinions, and not new opinions. Therefore, we are satisfied that the testimony of the experts did not unfairly exceed the limitations of the trial court, and we need not address whether the trial court committed harmful error by admitting evidence in violation of the limitations. These enumerations are without support in the record, and therefore enumerations of error 3 and 4 are without merit.

5. Moore also contends the trial court erred by allowing her to be cross-examined about her marital status at the birth of her second child. This allegation is also without factual support. After Moore testified on direct examination about “good” things that had happened to her recently, including the birth of a child and her marriage, one of the defendants asked her about the date of her marriage. She was not asked whether she was married when her child was born. Moore injected the topic of her marriage in the trial, and we find no error in allowing an appellee to ask when that was. If Moore’s marriage was relevant, the date of the wedding was equally relevant. OCGA § 24-2-1; Weathers v. Cowan, 176 Ga. App. 19, 20 (333 SE2d 921). Moreover, we find it a far reach to suggest that this question and response caused the jury to reach the conclusion that Moore’s child was born before her marriage, or if it did that the jury would have reached the verdict in this case because of it. OCGA § 9-11-61; Department of Transp. v. 2.734 Acres of Land, supra. Therefore, we find this enumeration of error also to be without merit.

6. Moore’s final enumeration is that the trial court erred by charging the jury that “[a] possible cause cannot be accepted by the jury as a proximate cause, unless the evidence excludes all other causes or shows direct connection with the occurrence.” We cannot consider this enumeration of error because the transcript shows that no objection was made to the charge given. OCGA § 5-5-24 (a); Morris v. DeLong, 183 Ga. App. 124 (358 SE2d 285). Moreover, we have considered whether we should consider the alleged error under OCGA § 5-5-24 (c) as a substantial error which was harmful as a matter of law (see Foskey v. Foskey, 257 Ga. 736-737 (363 SE2d 547)), and conclude that we should not.

The proposed charge was read during the charging conference in which Moore’s counsel was an active participant, and, of course, Moore’s counsel was present when the charge was given to the jury. There was no objection to this charge on any occasion. Under these circumstances, we find that any error was induced by Moore, and that this coupled with her failure to object to the charge given precludes her from maintaining the issue on appeal. Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726); Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696); Nelson v. Miller, 169 Ga. App. 403, 405 (312 SE2d 867).

Decided July 13, 1990

Rehearing denied September 4, 1990 — Cert, applied for.

Walter H. Beckham III, for appellant.

Lokey & Bowden, Samuel P. Pierce, Jr., Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Bentley, Karesh, Seacrest, Labouitz & Campbell, Gary L. Seacrest, Edwin A. Tate II, for appellees.

Further, we are mindful that OCGA § 5-5-24 (c) must be strictly construed to prevent emasculation of subsection (a) (Widener v. Mitchell, 137 Ga. App. 730, 731-732 (224 SE2d 868); Nathan v. Duncan, 113 Ga. App. 630, 638 (149 SE2d 383)), and that the instances in which the subsection applies are rare. Central of Ga. R. Co. v. Luther, 128 Ga. App. 178, 180 (196 SE2d 149); Seabolt v. Cheesborough, 127 Ga. App. 254, 260 (193 SE2d 238).

In any event, this purported error was not harmful as a matter of law. “To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.” Hamrick v. Wood, 175 Ga. App. 67, 68 (332 SE2d 367). See also National Dairy &c. Corp. v. Durham, 115 Ga. App. 420, 422-423 (154 SE2d 752). Considering the relative weakness of Moore’s case in which even her own expert witness could not say with certainty that her physical condition was not the result of the expected progression of her pre-existing conditions, and the fact that the witnesses testifying for the appellees were her own treating physicians, we cannot conclude that the charge resulted in a gross miscarriage. Accordingly, this enumeration of error is also without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Banke, Presiding Judge. Cooper, Judge,

text:
    A90A0713.
    LASHLEY v. THE STATE.
    (396 SE2d 590)
   Banke, Presiding Judge.

The appellant appeals his conviction of possessing cocaine with intent to distribute.

The appellant was arrested outside the Tanner Shopping Plaza in Atlanta. The arresting office testified that he and his partner were on plain-clothes detail and had placed the shopping plaza under surveillance for possible drug activity because they had made drug arrests there in the past and because they had received citizen complaints that drug activity was still taking place there. He stated that during the course of this surveillance he observed an individual whom he had previously witnessed making apparent drug sales to passing motorists hand the appellant, who was standing at a nearby pay phone holding the receiver but not speaking into it, a brown paper bag. He testified that he then observed the appellant place this bag behind an ice machine. Several persons, including the appellant, were subsequently arrested at the scene. A total of $3,786 was seized from the appellant’s person incident to his arrest; and inside the brown paper bag, which was retrieved from behind the ice machine, were found 27 small zip-lock bags containing cocaine. Held:

1. The appellant contends that the trial court erred in refusing to declare a mistrial in response to the conduct of the prosecuting attorney and several of the state’s witnesses in referring to the arrest scene as a “known drug area.” Prior to the commencement of the trial, the court had granted a motion in limine filed by the appellant seeking to exclude such testimony on the ground that it would be unduly prejudicial to him, but such references to the area were nevertheless made repeatedly during the trial. While the trial judge sustained the appellant’s objections to these references, gave instructions to the jury to disregard them, and rebuked the state’s attorney in front of the jury for making them, the appellant contends that their cumulative prejudicial effect was nevertheless so great as to deny him a fair trial. We disagree. The fact that the shopping plaza was known by the officers to be an area where illegal drugs were sold had at least tangential relevance to explain their conduct in placing it under surveillance. See Davis v. State, 242 Ga. 901 (6) (252 SE2d 443) (1979); Moses v. State, 166 Ga. App. 425 (2) (304 SE2d 528) (1983); Stephens v. State, 157 Ga. App. 414 (2) (278 SE2d 70) (1981). The statements did not suggest that the appellant had himself been involved in any previous criminal misconduct at that or any other location; and for this reason, as well as because the jurors were instructed to disregard the statements, the appellant could not have been greatly prejudiced by them. Accordingly, the trial judge did not abuse his discretion in denying the motion for mistrial. Compare Williams v. State, 156 Ga. App. 635 (275 SE2d 718) (1980).

2. The appellant contends that the trial court erred in refusing to exclude testimony by the arresting officer that his partner had been killed in the line of duty several months after his (the appellant’s) arrest. The appellant argues that this evidence “was . . . prejudicial to [him], in that it placed upon [him] an inappropriate burden of an implied presumption that the death of [the officer] was somehow caused by or connected with the charges against [him].” However, there was not the faintest implication that the appellant had been in any way responsible for the officer’s death. Indeed, the only testimony on this point was to the contrary. Consequently, we find this contention also to be without merit.

3. The appellant contends that he was improperly prevented from cross-examining the arresting officer on the issue of whether he (the appellant) could have observed the contents of the brown paper bag containing the cocaine prior to his arrest. The questions which the appellant’s counsel was prevented from asking in this regard were as follows: (1) “You can’t testify that there is not even a reasonable doubt that the defendant didn’t know what was inside that bag, correct?” and (2) “There was doubt in your mind as to whether or not [the defendant] knew what was in that bag, correct?” The state’s objection to the first of these questions was properly sustained on the ground that it called for a legal conclusion, and its objection to the second was properly sustained on the ground that it sought irrelevant testimony concerning the witness’ belief about what the appellant knew or did not know. While the appellant’s counsel was entitled to ask the witness whether he had observed the appellant look inside the bag or whether he otherwise had reason to believe the appellant knew what was inside it, no such questions were asked. This enumeration of error is without merit.

4. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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

Judgment affirmed.

Corley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Sognier and Pope, JJ., concur. Beasley, J., concurs in judgment only as to Division 1. Cooper, J., dissents.

Cooper, Judge,

dissenting.

I concur with the majority except as to Division 1. I dissent to that Division because I believe the trial court abused its discretion in overruling appellant’s motion for a mistrial on the basis of the prosecutor’s repeated violations of the trial court’s ruling on appellant’s motion in limine.

Prior to the trial of the case, the court granted appellant’s motion to exclude all references to the area where appellant was arrested as a “known drug area” and stated: “Well, the court would sustain your motion in limine and direct the district attorney to inform his witnesses that not to use the expression this strip shopping area was a known drug area or I knew it to be a drug area. The officer, if its correct and true and is asked to testify he was or whatever the facts are on a detail connected with the goal of arresting persons charged, arresting persons dealing in drugs, the community in this area, he was working this area and leave out the word known, I was there because it was a known drug area. Leave out those words, known drug area.” (Indention omitted.) In spite of this very clear and specific evidentiary ruling, the prosecutor continuously referred to the area where appellant was arrested as a “known drug area,” including several times during his opening statement and closing argument. The majority is of the opinion that the fact that the shopping plaza was known by the officers to be an area where drugs were sold was relevant to explain the officer’s conduct in placing the area under surveillance. However, the prosecutor’s remarks were not confined to explaining the officer’s conduct and gave the impression that appellant knew the area was a “known drug area.” That was exactly the prejudicial effect sought to be avoided through the motion in limine. Although the trial court after each violation gave curative instructions to the jury, I cannot conclude as the majority did that these improper references were not prejudicial to appellant. A motion in limine allows the court to exclude reference to certain matters deemed prejudicial prior to their utterance in front of a jury. See Harley-Davidson Motor Co. v. Daniel, 149 Ga. App. 120 (1) (253 SE2d 783) (1979). The trial court deemed references to “known drug area” to be too irrelevant to outweigh the prejudicial effect it could have on appellant’s case. “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. [Cits.] If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar ‘to a preliminary ruling on evidence at a pretrial conference’ and it ‘ “controls the subsequent course of action, unless modified at trial to prevent manifest injustice.” ’ [Cit.]” State v. Johnston, 249 Ga. 413 (3) (291 SE2d 543) (1982). The trial court’s ruling prior to trial was tantamount to the court’s declaration that the matters were too prejudicial and irrelevant to be uttered in front of a jury. The cumulative effect of allowing the prosecutor to repeatedly violate the ruling during the course of trial with nothing more than curative instructions did little to give effect to the preliminary ruling and, in my opinion made it “highly probable” that the error contributed to the conviction. Compare Jones v. State, 159 Ga. App. 704 (2) (285 SE2d 45) (1981).

Under OCGA § 17-8-75 the trial court, in its discretion, may grant a mistrial if prejudicial remarks are made by the prosecutor in the presence of the jury. While recognizing that the trial judge is vested with broad discretion in passing upon a motion for mistrial, it is my belief that excusing the prosecutor for his repeated violations of the trial court’s ruling, instead of declaring a mistrial because of the cumulative prejudicial effect those violations had on appellant, constituted a manifest abuse of discretion; therefore, I respectfully dissent.

Decided September 4, 1990.

Fredric W. Tokars, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William L. Hawthorne III, Carl P. Greenberg, Assistant District Attorneys, for appellee.