text:
    A90A1897.
    DANIEL v. THE STATE.
    (404 SE2d 466)
   Pope, Judge.

Defendant Juanza D. Daniel entered a guilty plea to the offense of possession of a firearm by a convicted felon but reserved his right to appeal from the denial of his motion to suppress. We affirm.

The transcript from the motion to suppress hearing shows the following: Deputy Mike Huntzinger of the Clarke County Police Department stopped defendant for travelling at an excessive rate of speed. He requested defendant’s driver’s license and proof of insurance. Defendant told the officer his license had expired or been sus pended but retrieved his proof of insurance from inside his car. After a computer check revealed that defendant’s license had been suspended for points, Huntzinger placed defendant under arrest for driving with a suspended license, handcuffed him and placed him in the back of his patrol car. Huntzinger then searched defendant’s vehicl and discovered a .38 caliber revolver “stuffed down” between th< front seat and the console. The officer testified that the search was conducted incident to defendant’s arrest, and not for the purpose oj inventorying the contents of the automobile (which was impounded' or for the purpose of discovering evidence of the crime for which de fendant had been placed under arrest (driving with a suspended li csnss)

Relying on New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the trial court denied defendant’s motion to supi press. On appeal defendant argues that, pretermitting the validity o| the search under federal law, the search was illegal under state law because it was not authorized by OCGA § 17-5-1.

“In New York v. Belton, [supra] the United States Supreme Court held that ‘when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ Id. at 460. ‘In (State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982), this court) found that the teaching of Belton was “that a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arrestee had no ‘immediate control’ of the area at the time the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a ‘recent occupant’ of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search. . . .” ’ ” State v. Tinsley, 194 Ga. App. 350, 351 (1) (390 SE2d 289), cert. denied, 194 Ga. App. 912 (1990).

In Tinsley the challenged search, like the search in this case, occurred after defendant had been arrested for a traffic violation (driving without a license) and placed in the back of the squad car. In upholding the search in Tinsley, this court, although not specifically addressing the applicability of OCGA § 17-5-1, noted that while the search might not be upheld on the pretext of discovering fruits or instrumentalities of the crime for which the defendant was arrested, OCGA § 17-5-1 (a) (3), since in the case of traffic violations there are no fruits or instrumentalities to be discovered, “a search of . . . the area within such person’s immediate presence may be conducted for other purposes [enumerated in OCGA § 17-5-1], such as protecting the officer from attack [or preventing the arrestee from escaping]. OCGA § 17-5-1 (a) (1) [& (2)].” Id. at 352. See also Medlin v. State, 168 Ga. App. 551 (2) (309 SE2d 639) (1983) in which this court, rely-ling on Belton, rejected defendant’s claim that the search “of his vehicle [was] not justified as [a search] incident to a lawful arrest under jOCGA § 17-5-1.” (Emphasis supplied.) Id. at 552.

| We also reject defendant’s implicit contention that the arresting [officer make two inquiries, one under state and one under federal law, before determining whether to proceed with the contemporaneous search of an automobile following the arrest of its occupant. Such a procedure would, in effect, completely frustrate the stated purpose of the Supreme Court “to establish ... a single familiar standard [for Ihe category of cases where the arrestee is a recent occupant of the bar but no longer has access to it or its contents] to guide police of-iicers, who have only limited time and expertise to reflect on and bal-anee the social and individual interests involved in the specific circumstances they may confront. (Cit.) New York v. Belton, 453 U. S. at 458, supra.” State v. Hopkins, 163 Ga. App. 141, 144 (293 SE2d 529) (1982). In so holding we find instructive the holding in Durden v. State, 250 Ga. 325, 327 (1) (297 SE2d 237) (1982), in which our Supreme Court was confronted with a similar issue involving probable cause to arrest under federal and state law. In that case the court recognized that “dual inquiries, one under federal law and one under state law, serve no useful purpose and result in complicating the law in an area which needs to be readily understood by law enforcement officers.” Id. at 327. Thus, for purposes of searching a vehicle contemporaneously with the lawful arrest of an individual, “we find the state rule to be the same as the federal rule. [Such a search], legal under federal law, [is] legal under state law. Thus, defendant’s motion to suppress the evidence was properly denied.” Id.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

1. It should be noted that the analysis undertaken in this case and in the cases cited did not examine the reaches of the Georgia Constitution. It may not be coextensive with the Georgia statute or with the Federal Constitution’s provision regarding search and seizure as construed by the United States Supreme Court from time to time.

The motion to suppress asserted that the weapon was obtained “in violation of the accused’s rights under Article 1, Sec 1, Para. 13 of the Georgia Constitution [1983] and the Fourth and Fourteenth Amendments of the U.S. Constitution.” However, at the hearing, the defendant stood on the limitations of the statute authorizing search pursuant to lawful arrest in certain circumstances, OCGA § 17-5-1, and on the Federal Constitution and recent Georgia cases applying federal constitutional principles, especially as articulated in New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981). The Georgia Bill of Rights provision was not pursued. The trial court decided the motion on the federal ground without any express ruling or the state statutory ground.

On appeal defendant argues that the Georgia statute is more re strictive than is the Fourth Amendment, as construed by the Unitec States Supreme Court particularly in Belton, and that the motiorB should have been granted on this state-law-based ground. He citel State v. Camp, 175 Ga. App. 591, 593 (1) (333 SE2d 896) (1985) which acknowledged that state statute and Federal Constitution mal set different standards. Although it also pointed out that state constil tutional guarantees are not necessarily the same as the federal, thal independent ground was abandoned in this case as well as in Camp

I do not suggest that the thirteenth paragraph of the Constitution of Georgia is more or less restrictive of police or more or less protective of citizens than is the Fourth Amendment to the United States Constitution. Cf. Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986). I suggest only that it was not explored as a basis for the motion, and thus we do not consider it.

2. Insofar as State v. Tinsley, 194 Ga. App. 350 (390 SE2d 289) (1) (1990), addresses the federal constitutional claim, it is not relevant to the issue before us. A federal claim is not raised. Whether the search violated the state statute is the question. Tinsley rejects Mobley v. State, 130 Ga. App. 80 (1) (202 SE2d 465) (1973) and Rowland v. State, 117 Ga. App. 577 (161 SE2d 422) (1968), as controlling on the state statute issue. It construes the state statute in light of the federal construction of the Federal Constitution in Belton and implicitly finds no violation of the statute.

Another case cited by the majority, Medlin v. State, 168 Ga. App. 551 (2) (309 SE2d 639) (1983), does the same thing. In determining that OCGA § 17-5-1 was not violated, the court measured the search by the federal standard of Belton.

I do not discern in appellant’s brief, or in his argument in the lower court for that matter, any contention or suggestion that the arresting officer make two inquiries or attempt to apply two separate standards before searching. Appellant merely urges, correctly, that the officer must abide by whatever is the most restrictive law applicable to his activities. If the state statute or the State Constitution is more demanding than the Federal Constitution, then he is bound by the former and need not be concerned with the latter because it is automatically subsumed. The thrust of appellant’s argument is that ;ven if Belton, that is, the United States Supreme Court interpreta-ion of the Fourth Amendment in automobile searches, is satisfied, Georgia law must also be satisfied. The Supreme Court in Belton did lot establish a “single standard” for both state and federal law, but ather a single federal constitutional standard which is applicable in til states insofar as the Federal Constitution is concerned. The “disar-ay” it sought to resolve was federal constitutional disarray which had merged from court decisions around the country. It did not, and does Hot, and cannot, prohibit state laws, by state legislative enactments or ■tate common law development, from protecting individual rights Haore stringently. That is the nature of federalism. The policeman Heed only learn and apply one standard, the highest standard com-Helled by our dual system of laws.

Decided March 15, 1991.

Kenneth W. Mauldin, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

Since our Court has concluded that compliance with Belton principles meets the strictures of OCGA § 17-5-1, I am constrained to concur in the affirmance of the denial of appellant’s motion to suppress the evidence seized in the search. The Supreme Court of Georgia, in Durden v. State, 250 Ga. 325, 327 (1) (297 SE2d 237) (1982), without analyzing the strictures of OCGA § 17-5-1, and dwelling briefly only on the arrest statute and finding it “to be the same as the federal rule,” summarily held that “[a]n arrest and search, legal under federal law, are legal under state law.”

       OCGA § 17-5-1 (a) allows a search incident to a lawful arrest for the following pul toses: “(1) Protecting the officer from attack; (2) Preventing the person from escaping; (3) discovering or seizing the fruits of the crime for which the person has been arrested; or (4) discovering or seizing any instruments, articles, or things which are being used or which may ave been used in the commission of the crime for which the person has been arrested.”

       Overruled on other grounds sub nom. Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977).

         It is not evident whether the appellant invoked OCGA § 17-5-1 expressly.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A2069.
    DEAL v. THE STATE.
    (404 SE2d 343)
   Cooper, Judge.

Appellant was indicted and tried for trafficking in cocaine. The] jury returned a guilty verdict and he appeals.

Acting on information provided by a detective in the Atlanta po-| lice department that cocaine was being stored for distribution in At-, lanta in a motel room in Clayton County, Clayton County narcotics] agents began surveillance of Room 219 of the Travel Lodge in thalj county. Concurrently, an agent obtained a search warrant for Roor 219 based on information provided by the Atlanta detective that reliable and confidential informant had been in Room 219 within the past 48 hours; that four males and a female at the motel were in-| volved in cocaine distribution; and that the room was registered to “Michelle,” who was from the Miami area and drove a white car wit! a Florida prestige tag. On surveillance, the officers observed several men getting out of a Toyota and going into Room 203. Shortly there! after, one of the men left Room 203 and entered Room 219. He wal later identified as Preston Bowe. The search warrant was executed! and Michelle Walker and Preston Bowe were found in Room 219 witlj a box of nine millimeter bullets and $1,838 in cash secreted ill Walker’s purse. However, no cocaine was discovered. The agent! maintained a watch on Room 203 and discovered that the room wal registered to Chris Bowe, Preston’s brother, whom he denied know| ing. The police went into Room 203 without a warrant, moved the men present to Room 219 and left an officer in Room 203 to secure the room while a search warrant was obtained. Appellant was one of the men present in Room 203 who was subsequently moved to Room 219. The search of Room 203 produced two guns, including a nine millimeter handgun, cash and the keys to the white car with the Florida prestige tag but no cocaine. In a second search of Room 219, approximately 253 grams of crack cocaine were discovered in a brown paper bag inside the box springs of the bed. All were arrested and charged with trafficking in cocaine.

1. Appellant enumerates as error the trial court’s denial of his motion to suppress because the affidavit supporting the search warrant was insufficient. Appellant argues that the Clayton County agent did not verify the information recited in the affidavit nor did the Atlanta detective or his informant appear before the magistrate; therefore, there was no probable cause to justify the issuance of the search warrant. The affidavit indicated that the information was obtained by a detective of the narcotics unit of the Atlanta Bureau of Police Services who acquired the tip from a “known confidential and. reliable informant” who had “provided truthful and accurate information within the past three months” leading to arrests and seizures of controlled substances. The detective was investigating a fire bombing and a drug related homicide involving someone known only as “Red,” and the informant indicated that the cocaine was being stored in Room [219 for “Red.” The detective visited the motel and confirmed that [Walker was registered and had given a Miami address and a fictitious [driver’s license number. “ ‘Observations by fellow officers of the Government engaged in a common investigation are plainly a reliable ba-fcis for a warrant applied for by one of their number.’ [Cits.]” Mitchell v. State, 239 Ga. 456, 458 (2) (238 SE2d 100) (1977). Moreover, it was liot essential that the detective and the informant appear before the magistrate. “ ‘The rule in Georgia has been that an affidavit supporting a search warrant may be based on hearsay information as long as here is a substantial basis for crediting the hearsay.’ [Cit.]” Williams v. State, 193 Ga. App. 677, 680 (388 SE2d 893) (1989). In our view, he detective’s verification of the informant’s tip provided such a ba-|is. “Looking at the totality of the circumstances presented to the hagistrate, we are satisfied that the magistrate had a substantial ba-is for concluding that probable cause existed and there was no error n the denial of the motion to suppress.” Bullock v. State, 195 Ga. Lpp. 37, 39 (1) (392 SE2d 534) (1990).

2. In his second and third enumerations of error, appellant con-ends the trial court erred in failing to grant his motions for a diected verdict at the close of the State’s case and at the close of ap-[ellant’s case, respectively, as the evidence demonstrated only his “mere presence” at the scene of the crime. The evidence showed that Preston and Chris Bowe were cousins of appellant; that Preston Bowe was a seasoned drug dealer who made numerous trips from Miami to Atlanta to “visit” and sell drugs; that Preston Bowe often associated with appellant, an Atlanta resident, on the trips; that at the time he was removed from Room 203, appellant had been in the presence of loaded guns and money of which ownership had been denied by all the men present in the room; and that the bullets for the nine millimeter gun found in Room 203 were discovered in Room 219, the room in which the cocaine was discovered. “ ‘Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985). Further, “[t]he direction of a verdict of acquittal is proper only where ‘there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.’ [Cits.] If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. [Cit.]” Ross v. State, 194 Ga. App. 285 (2) (390 SE2d 429) (1990). We find that there was sufficient evidence of guilt to warrant consideration by the jury, and the evidence did not demand a verdict of acquittal.

3. Appellant also enumerates as error the admission of a videotape of the surveillance of the Travel Lodge on the day of the arrests inasmuch as the State failed to produce the tape pursuant to appellant’s discovery motions. According to an agent involved in the surveillance, the videotape revealed that after their arrests and while stil at the motel, appellant and the co-defendants were asked if they hat any knowledge of the money and the weapons, and with the exceptior of Preston Bowe, all denied knowledge. Specifically, appellant con tends that the State failed to produce a copy of appellant’s oral state ment pursuant to OCGA § 17-7-210 (c) and (e), and the State did no produce the videotape pursuant to his motion to examine all “physi cal evidence in the possession or under the control of the District At torney.” However, the record contains neither a motion to produc under OCGA § 17-7-210 filed on appellant’s behalf nor appellant’ blanket motion. At trial, appellant joined the co-defendants in an ob jection to the tape because the State failed to produce, in response tl co-defendants’ requests prior to trial, “any recorded statement” or tl allow the viewing of physical evidence. I

Two of the limited methods by which a criminal defendant mal obtain discovery are an OCGA § 24-10-26 notice to produce documeil tary evidence in the possession of the State and a request pursuant tl OCGA § 17-7-210 for the defendant’s statement given while in polil custody. Ford v. State, 256 Ga. 375 (2) (a) (349 SE2d 361) (1986). If we view appellant’s blanket request to produce liberally as an OCGA § 24-10-26 notice to produce, such a request “ ‘cannot be used to enable defense counsel to examine, in advance of trial or evidentiary hearing, the contents of the district attorney’s file.’ [Cit.] In a criminal case a notice to produce pursuant to OCGA § 24-10-26 . . . may compel the production of books, documents or tangible things in the State’s possession ‘where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant.’ [Cit.] (Emphasis supplied.)” Sims v. State, 251 Ga. 877, 879-880 (4) (311 SE2d 161) (1984). The videotape was only introduced on re-direct examination to rehabilitate the testimony of the agent who had already testified that the men denied knowledge of the guns and money. Thus, appellant did not need the tape to support his contention that he had no knowledge of the guns and money because the State never disputed the fact.

At trial, the prosecutor stated to the court that he furnished defense counsel with an excerpt from a DEA report which recited that appellant and the co-defendants denied knowledge of the cocaine, guns and money, and his pronouncement was not disputed by defense counsel. He maintained that he was not required to mention or produce the videotape. We can find no authority for the contention that the videotape should have been produced under OCGA § 17-7-210, which requires in subsections (b) and (c), that the prosecution comply with a defendant’s timely request’ for a written copy of his oral statement. There is no evidence that the statement provided by the prose-was not sufficient under OCGA § 17-7-210, and the statement is lot included in the record on appeal for our review. It appears, there-ore, that the trial court did not abuse its discretion in admitting the ddeotape. See Lewis v. State, 158 Ga. App. 586 (1) (281 SE2d 331) 1981).

4. Appellant next contends the trial court erred in admitting a jonding receipt which was discovered in Michelle Walker’s purse dur-ng the search. The receipt showed that approximately one month lefore the arrests in the instant case Preston Bowe posted a bond on ippellant’s behalf stemming from unspecified charges. The State ¡ought to introduce the receipt during its case in chief, contending hat the receipt demonstrated further, the connection between appel-ant and Preston Bowe. Appellant contends that the receipt tended to [how that he had been incarcerated and put his character in issue, rhe receipt was admitted at the close of all of the evidence, and at pat juncture, Preston Bowe had already testified that while in At-bnta to sell drugs on the date indicated on the receipt, he posted ippellant’s bond. Counsel for appellant renewed his objection to the pceipt but did not object to Bowe’s subsequent testimony. We again find no abuse of the trial court’s discretion in the admission of the receipt, Lewis, supra, and “even assuming error, it would be harmless inasmuch as the [document] was merely cumulative of other evidence properly before the jury. [Cits.]” Milstead v. State, 155 Ga. App. 407 (2) (270 SE2d 820) (1980). See also Brooks v. State, 193 Ga. App. 559 (1) (388 SE2d 386) (1989).

Decided March 15, 1991.

David J. Walker, Sr., for appellant.

Robert E. Keller, District Attorney-, for appellee.

5. Appellant argues that the trial court erred in failing to allow appellant to open and conclude argument to the jury because he offered no evidence on his own behalf and did not cross-examine co-defendants’ witnesses. The transcript reveals that no timely objection was made to the order of closing argument, and “[objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Cit.]” Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

6. Finally, appellee enumerates as error two charges given to the jury. However, the transcript demonstrates that upon the trial court’s direct inquiry as to whether there were any objections to the charge, counsel for a co-defendant stated, “None other than our previous standard objection, Your Honor.” The trial court then asked counsel for appellant, and he replied, “Likewise, sir.” The only other objection was made before the charge was given, at which time co-defendant’s counsel argued that the State’s requests to charge were untimely. Appellant’s counsel joined in the objection, and it was sustained. Co-defendant’s counsel stated that otherwise, he had no objections to the charge. “ ‘In the absence of (an objection ór) a reservation in response to a direct inquiry by the trial court [for objections to jury charges], appellant has waived the objection^] he now makes.’ [Cit.]” Hills v. State, 190 Ga. App. 636 (2) (379 SE2d 626) (1989). This enumeration is without merit.

Judgment affirmed.

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


author: Andrews, Judge. Pope, Judge,

text:
    A90A2077.
    BROWN v. THE STATE.
    (404 SE2d 469)
   Andrews, Judge.

Brown was convicted of possession of cocaine and brings this se appeal of the judgment entered on the conviction.

Brown, who was a confidential informant to various law enforce ment agencies, took a container of crack cocaine from an evidence cabinet in the District Attorney’s office, while he was waiting there to be called by the state as a witness. The defendant’s wife (from whom he is now divorced) testified for the state that she and her infant son accompanied Brown to the District Attorney’s office, where she observed him take the cocaine from the cabinet, place it in the child’s diaper bag, and later use the cocaine.

Evidence was also admitted that Brown made a formal confession of the crime, and a voluntary admission while he was incarcerated. Brown testified that his wife took the cocaine from the cabinet, and he confessed to protect her. He denied making the statement attributed to him in jail.

1. In his first two enumerations of error, Brown claims the trial court erred in allowing his wife to testify, over his objection, that she saw him take the cocaine and use it. He argues this testimony was rendered inadmissible by the privilege set out in OCGA § 24-9-21 (1) excluding from evidence confidential communications between husband and wife. As the communicating spouse, Brown has the right to exercise this privilege even after the dissolution of the marriage (McCord v. McCord, 140 Ga. 170, 174 (78 SE 833) (1913)), and, as the one who seeks to establish the privilege, has the burden of proving it ap-lies to the testimony at issue. See Marriott Corp. v. American Acadmy, 157 Ga. App. 497, 501-506 (277 SE2d 785) (1981) (burden on one eeking to exclude evidence under privilege in OCGA § 24-9-21).

To invoke the privilege, Brown must prove that the testimony he eeks to exclude described a confidential communication he made to is wife. Wilcox v. State, 250 Ga. 745, 754-755 (301 SE2d 251) (1983). he privilege does not exclude all communications between husband nd wife, but only those which are made in reliance upon the special rust and confidence placed in the marital relationship. Georgia Intl. &c. Co. v. Boney, 139 Ga. App. 575, 578 (228 SE2d 731) (1976). Acts, s well as the written or spoken word, may qualify as confidential ommunications, where the actor invites the presence or attention of is spouse to convey knowledge in such a way that “the act is as uch a communication as would be his words to her describing the |Ct.” Id. at 578. Acts done “solely for the sake of doing it . . . [or] in isregard of, or indifference to . . .” the presence of the spouse are ot considered confidential communications within the marital rela-onship. Id. at 578-579.

Under Boney, for an act to qualify as a confidential communication it must be in the nature of an assertive communication where the action itself is as much a communication as would be words describing it. Assertive conduct, within the privilege, would include acts and gestures which are clearly intended to convey meaning to the other spouse, such as a sign or gesture with a specific message. An example of non-assertive conduct, not within the privilege, would be an action of one spouse observed by the other without his or her knowledge. The difficult cases are those like the present one, where the husband’s actions were taken with the knowledge that his spouse was observing, but there is a lack of any clear proof that “the act is as much a communication as would be his words to her describing the act.” Boney, supra at 578. Accord State v. Hannuksela, 452 NW2d 668, 674-678 (Minn. 1990); Wigmore on Evidence, § 2337 at 657 (McNaughton rev. 1961).

In the instant case Brown has failed to carry the burden of proving that his actions should be privileged as confidential communications to his wife. The wife’s testimony shows she observed Brown take the cocaine, place it in a diaper bag, and later use it. She testified she made no comment and took no action at the time because she feared her husband’s violent nature. There was no additional evidence offered to establish more than the mere presence of the wife during these acts. Under these circumstances, we will not assume there was any special reliance on the marital relationship, or other factors (suet as assuming the wife was entrusted with the contraband) indicating the action was a confidential communication. The trial court correctly ruled that the wife’s testimony was not excluded by the privilege afforded in OCGA § 24-9-21 (1).

The evidence was sufficient for a rational trier of fact to fine Brown guilty of the charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We have examined Brown’s remaining enumeration of error re garding a jury charge on the weight to be given certain evidence am find it to be without merit.

Judgment affirmed.

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

Pope, Judge,

dissenting.

In this case the defendant, knowing his wife was watching, coml mitted a crime in front of her and concealed the evidence of the criml in a bag in her apparent possession. I can only conclude that defen ant acted in reliance upon the confidential relationship between hui band and wife and that the wife’s knowledge of the crime was a< quired in confidence. Thus, the wife’s testimony concerning what s learned from defendant’s acts should have been excluded by the prhl ilege afforded in OCGA § 24-9-21 (1).

The acts in question here are not routine daily activities which were engaged in without regard to the presence of defendant’s wife, which would be non-privileged pursuant to the holding in Georgia Intl. &c. Co. v. Boney, 139 Ga. App. 575 (228 SE2d 731) (1976). Neither were they acts which were merely circumstantial evidence of the crime with which he was charged, as were the acts witnessed and testified to by the defendant’s spouse in State v. Hannuksela, 452 NW2d 668 (Minn. 1990), cited in the majority opinion. “[A]ny knowledge acquired by the wife on account of the trust confided in her by her husband of any fact whatever should be excluded, whether the husband told it to her out of his mouth or showed it to her in a letter, or pointed it out with his hand, or locked it up and gave to her lone access to it by entrusting her with the key.” Georgia Intl. &c. Co. v. Boney, supra at 578. Here, defendant not only committed an illegal act in the presence of his wife but entrusted her with possession of the contraband. (Although the testimony did not expressly establish the wife was in possession of the infant’s diaper bag, we must assume it was in her possession because defendant was waiting to be called as a witness in a criminal trial and, undoubtedly, did not take a diaper bag with him to the witness stand.)

Defendant could not have more directly communicated to his wife the fact that he committed the crime than by committing it in [her presence. I conclude that the wife’s knowledge of the defendant’s |illegal act arose from the confidential relationship between spouses land therefore was privileged and should have been excluded. Cf. Jones v. Dept. of Human Resources, 168 Ga. App. 915 (2) (310 SE2d 1753) (1983) (where a minister and his wife were allowed to testify concerning a parishioner’s conduct because there was no showing that the Observations of said conduct arose from spiritual counseling or the profession of religious faith, as described in OCGA § 24-9-22, the stat-lite which grants a privilege to such communications).

I Even though evidence was presented that defendant made a formal confession of the crime and also made a voluntary admission to In officer while he was incarcerated, we could not hold that the admission of the privileged testimony was harmless error. Defendant lestified it was his wife who took the contraband from the evidence labinet and that he made the confession to protect his wife from a •riminal charge after the interrogating officers made an offer to “turn ■him] loose” if he would confess and then serve as an informant in a ■ertain pending investigation. He denied making the statement attributed to him in jail. We cannot second guess whether the jury would convict him if the only evidence against him had been these ■onfessions and defendant should have a new trial.

| I am authorized to state that Chief Judge Sognier, Judge Carley and Judge Cooper join in this dissent.

Decided March 15, 1991

Thomas A. Brown, pro se.

Darrell E. Wilson, District Attorney, H. Gray Skelton, Jr., Assistant District Attorney, for appellee.

       A related but separate privilege is described by OCGA § 24-9-23, which provides that le wife is competent but not compellable as a witness against her husband in the criminal loceedings. This privilege does not apply since it belongs not to the defendant, but to the (stifying wife, who chose not to exercise it. Ballard v. State, 252 Ga. 53, 55 (311 SE2d 453) 984).


author: Birdsong, Presiding Judge. Banke, Presiding Judge,

text:
    A90A2200.
    LEE v. PEACOCK et al.
    (404 SE2d 473)
   Birdsong, Presiding Judge.

This is a wrongful-death action brought by appellant to recover for the loss of her husband who died due to complications arising from the treatment of injuries sustained in a fall which occurred in appellees’ store. The appeal is from the grant of appellees’ motion for summary judgment.

Appellant was present in the store with her husband when the incident occurred. After proceeding ahead of him down a narrow aisle, which was lined on both sides with cardboard boxes stacked on wooden pallets, appellant looked back and observed that her husband] had fallen. No one actually witnessed her husband’s fall, and it is ap parent without dispute that there was no foreign substance on the) floor which might have caused it. Appellant testified, however, tha the stacked boxes made the aisle “real close” and that upon close: examination after her husband fell, she observed that the wooden pal-| lets on which the boxes were stacked were “sticking out enough t trip you.”

Appellant’s injured husband was transported by ambulance to local hospital, where it apparently was determined he had sustained fracture of his left femur. He was then transferred by ambulance, ac companied by appellant, to another hospital. Appellant testified thall while enroute to the second hospital, her husband told her he had tripped on a wooden pallet. He died three days later of post-operativ([ complications arising from the surgery performed to reduce his bon fracture. Held:

1. Appellant contends the trial court erred in concluding her hus band’s statement in the ambulance regarding the cause of his fall wai] not admissible as part of the res gestae.

Res gestae declarations are defined by OCGA § 24-3-3 as thos “accompanying an act, or so nearly connected therewith in time as t be free from all suspicion of device or afterthought. ...” The tern| refers to declarations which “obviously spring[] out of the transactio: tending to elucidate it, that [are] not suspected or extracted and thui [are] spontaneous and voluntary, made at a time near enough and under circumstances reasonably to preclude any suggestion of deliberate design. . . Walls v. State, 166 Ga. App. 503, 505 (304 SE2d 547).

“[A] trial judge’s determination that evidence offered as part of the res gestae is [or is not] sufficiently . . . reliable ... to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71). The trial court was authorized to conclude that, under the attendant circumstances, the husband’s statement in the ambulance, which was made to his wife some 45 minutes after his fall and approximately three days before he died of post-operative complications, was not sufficiently connected in point of time to the incident to be free from all suspicion of afterthought. Thus, the trial court’s inherent ruling in this case excluding the deceased husband’s statement was not “clearly erroneous,” and the trial court did not abuse its discretion in declining to consider it. Moreover, a correct ruling of the trial court will not be reversed regardless of the reason given, if any. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

This case is distinguishable from Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423), where the trial court denied the motion in limine to exclude the declaration of the deceased. Compare Chrysler Motors Corp. v. Davis, 226 Ga. 221, 226 (173 SE2d 691), cited in Swain, supra, “[t]he principal ingredient in this kind of evidence, required for its admissibility, is trustworthiness. . . . The declaration of the deceased in the Moore case [Moore v. Atlanta Transit System, 105 Ga. App. 70 (2) (123 SE2d 693)] was totally untrustworthy. It was not a part of the res gestae; it was made long after [the] alleged injury; [and] it was very much in the declarant’s interest.”

2. Our distinguished colleagues in the minority note that the rec-lord contains certain hospital records pertaining to the deceased and largue that the information in these records is admissible under OCGA |§ 24-3-4, and is sufficient to preclude the grant of appellee’s motion [for summary judgment. These hospital records contain the following [statements relating to deceased’s admission: “This is a 71-year-old Inale who fell the morning of admission. . . . Patient relates that he Ivas ambulatory in a local hardware store when he tripped over a pallet and incurred his fall.” (Emphasis supplied.) The hospital record piso reflects that “patient was in a local hardware store when he apparently tripped over a pallet and incurred the fall.” (Emphasis supplied.)

I On occasion, the personal history section of hospital reports will contain a “blow-by-blow” description of all alleged facts causing or ■ven remotely contributing to a patient’s injury, and give detailed accounts thereof quite unnecessary to those express purposes, such as medical diagnosis and treatment, listed in OCGA § 24-3-4. Superfluous recitations in medical reports of facts reported by a patient, particularly those with a self-serving litigative potential to the maker, should be viewed most critically, as the object of all legal investigation is the search for truth. See generally OCGA § 24-1-2. In such cases, the entry made in the hospital business record “is hardly a regular entry” that should warrant an exception to the hearsay rule. See Agnor’s Georgia Evidence (2d ed.), Hearsay, § 11-37. Additionally, the detailed description of the particular object upon which allegedly the deceased merely tripped has no medical significance in these circumstances for diagnostic or other medical purposes within the meaning of OCGA § 24-3-4. Accordingly, these entries should not be deemed to create a genuine issue of material fact as to the causation of the deceased’s injury. See Love v. Love, 259 Ga. 423, 424 (1) (383 SE2d 329) (inadmissible conclusions in affidavit disregarded).

Furthermore for the reasons stated in Division 3 below, the mere statement that deceased “tripped on a pallet” standing alone does not impute any negligence to appellees.

3. Assuming arguendo the evidence contained in the hospital reports is admissible in toto without redaction for summary judgment purposes, the trial court nevertheless did not err in granting summary judgment to appellees. The trial court in granting summary judgment for appellees considered as controlling the precedent of Lane v. Maxwell Bros. &c., 136 Ga. App. 712 (222 SE2d 184) and Rich’s v. Waters, 129 Ga. App. 305 (199 SE2d 623). We agree. See also Tuck v. Marriott Corp., 187 Ga. App. 567 (370 SE2d 795).

The record reflects deceased had patronized the store in the past; he was 71 years of age; no person actually witnessed his fall; deceased was following his wife through the store; appellant wife had walked down “a good walking area” when passing the pallets without incident; and, appellant wife had observed the pallets with fans stacked upon them as she walked by the pallets prior to her husband’s fall. The record also reflects deceased had fallen from vertigo or seizures of dizziness twice in 1985; he had fallen two or three times in the yard when his foot caught on the grass or something; and, deceased had a seizure in February, had fallen in the bathroom on a floor with a little moisture and a rug on it in March, had visited a doctor in April complaining of increased dizziness, and fell in the Western Auto store in May.

The pallets clearly were visible and posed no latent danger. “The duty to warn extends only to a latent danger — not to an open oi obvious one.” Herschel &c. Funeral Home v. Hines, 124 Ga. App. 47 49 (183 SE2d 7); Burnsed v. City of Albany, 184 Ga. App. 297, 299 (361 SE2d 275). It has been opined that to allege a proprietor pos sesses superior knowledge is “simply another way of alleging that h< had a superior ‘opportunity to discover’ ” the danger. Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 342 (373 SE2d 252) (concurring opinion). The evidence in this record is uncontroverted that the pallets would be visible to a passing customer, as they were visible to appellant moments before the deceased’s fall. Deceased “was under a duty to use [his] sight to discover any defects or dangers.” Lane, supra at 713. If the deceased in fact stumbled over the pallet rather than falling during the course of a seizure or dizziness attack, he failed in his duty to use his sight to see the obvious. Further, if the deceased fell over the pallet because he was undergoing a seizure or dizziness attack, the store would not be liable, as the deceased’s medical condition would be the “causation” of his injury. If, however, deceased did not stumble over the pallet at all, then appel-lees likewise are not liable as “ ‘ “ ‘proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.’ ” ’ ” Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539). There is no evidence that the deceased had eye trouble, no contradicting evidence that pallets were not in plain view, no evidence of poor lighting, and no evidence of anything that distracted him.

We are not without sympathy for the plight of appellant; nevertheless, “ ‘(t)he appellate process affords us no latitude to make adjustments for the . . . heart-rending misfortune of the unlucky.’ ” First Financial Ins. Co. v. Rainey, 195 Ga. App. 655, 664 (394 SE2d 774). Viewing the record in its entirety there exists at best a shadowy semblance of an issue as to appellees’ liability. “Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Citations and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (4) (397 SE2d 576).

Appellant’s other contentions are without merit.

Judgment affirmed.

Sognier, C. J., Pope and Andrews, JJ., concur. Carley, J., concurs in Division 3 and in judgment. Beasley, J., concurs in Divisions 1 and 3 and in judgment. McMurray, P. J., |Banke, P. J., and Cooper, J., dissent.

Banke, Presiding Judge,

concurring in part and dissenting in part.

1. I concur with the holding in Division 1 of the majority opinion Ithat the decedent’s statement to his wife in the ambulance was not [sufficiently connected to the actual occurrence of the accident to be [admissible as part of the res gestae. However, I would hold that his itatements to the admitting physician concerning the cause of his injury, as contained in the hospital records, were admissible under OCGA § 24-3-4, which provides, in pertinent part, as follows: “Statements made for purposes of medical diagnosis or treatment and describing . . . symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.” (Emphasis supplied.)

“The theory behind this exception to the hearsay rule is that information given to medical personnel for the purpose of securing diagnosis or treatment may be deemed inherently trustworthy.” Dunn v. McIntyre, 146 Ga. App. 362, 363 (246 SE2d 398) (1978). See also Allen v. State, 174 Ga. App. 206 (2) (329 SE2d 586) (1985); Davis v. State, 168 Ga. App. 272 (5) (308 SE2d 602) (1983). The majority appears to contradict itself in asserting, on the one hand, that the manner in which the decedent sustained his injury had “no medical significance for diagnostic or other purposes,” and on the other hand that the injury may well have resulted from a seizure or some other physical infirmity. Clearly, the nature and circumstances of the fall were relevant under the circumstances to the decedent’s diagnosis and treatment.

2.1 would further hold that a material factual dispute remains as to the appellees’ liability. While the appellant acknowledged that she and her husband had been frequent visitors to the store, there was no showing that the same conditions had been present in the store on those previous occasions, i.e., that there were boxes stacked on wooden pallets on either side of the narrow aisle in question. Moreover, while the presence of the boxes may have been readily observable, it is inferable from the decedent’s statements to the hospital physician, combined with the appellant’s testimony in the case, that what caused the fall was not the boxes themselves but the fact that the pallets on which they were stacked were “sticking out enough to trip you.” It is further inferable from the appellant’s testimony that this condition was not readily observable.

“ ‘Even though the facts in the case are uncontradicted and un-controverted, where they are such that there is room for difference of opinion between reasonable men as to whether or not negligence should be inferred, the right to draw the inference is peculiarly within the exclusive province of the jury. [Cits.]’ [Cit.]” Yeager v. Jacobs, 111 Ga. App. 358 (2) (141 SE2d 837) (1965). Because I cannot agree that the evidence currently of record in this case establishes as a matter of law that the decedent knew or should have known of the allegedly dangerous condition, I must respectfully dissent from the majority’s decision.

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

Decided March 15, 1991.

Kopp, Peavy & Conner, J. Edwin Peavy, for appellant.

Terry A. Dillard, Bryant H. Bower, Jr., for appellees.


author: Carley, Judge. Sognier, Chief Judge,

text:
    A90A2354.
    C & S INDUSTRIAL SUPPLY COMPANY, INC. v. PROCTOR & GAMBLE PAPER PRODUCTS COMPANY.
    (404 SE2d 346)
   Carley, Judge.

After bringing suit against appellee-defendant, appellant-plaintiff failed to comply with certain requests for production of documents. Pursuant to appellee’s motion, the trial court entered an order compelling appellant’s production of the requested documents. When appellant failed to comply with this order, appellee filed a motion for sanctions. Only minutes before the hearing that had been scheduled on appellee’s motion, appellant filed a notice of voluntary dismissal pursuant to OCGA § 9-11-41 (a) and served appellee with a copy thereof. However, the trial court subsequently struck appellant’s notice of voluntary dismissal and dismissed appellant’s complaint and assessed attorney’s fees as sanctions under OCGA § 9-11-37 (b) (2) (C). It is from this order of the trial court that appellant brings this appeal.

Pursuant to OCGA § 9-11-41 (a) a plaintiff may voluntarily dismiss his action, without order or permission of the trial court, at any time before he rests his case. However, “ ‘ “the announcement by a trial judge of a decision that will terminate a civil case, though that decision has not been formally reduced to writing and entered, will preclude the filing of a voluntary dismissal after the announcement but before the judgment is actually entered by the trial judge. [”] [Cit.]’ [Cit.] ‘ “It is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” ’ [Cit.]” Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469) (1987). Although the termination of appellant’s action by dismissal of its complaint was obviously a possible result of the impending hearing on appellee’s motion for sanctions, there is no evidence that appellant lhad prior knowledge that such a sanction would actually be imposed.

| There is no “bad faith” exception to a plaintiff’s right to voluntarily dismiss his action pursuant to OCGA § 9-11-41 (a). “[T]he legislative intent behind the enactment of OCGA § 9-11-41 (a) was to afford a plaintiff, faced with a contrary verdict or other untenable iposition, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.” (Emphasis supplied in part.) Griggs v. Columbus Bank &c. Co., 188 Ga. App. 741, 743 (374 SE2d 347) (1988). See also Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 600 (2) (399 SE2d 92) (1990).

After appellant voluntarily dismissed its complaint, there was nothing pending in the trial court but appellee’s motion for sanctions pursuant to OCGA § 9-11-37 (b). Compare American Express Co. v. Baker, 192 Ga. App. 21 (1) (383 SE2d 576) (1989). If appellee wished to secure attorney’s fees based upon appellant’s asserted abuse of discovery procedures, it could have moved pursuant to OCGA § 9-15-14. However, appellant’s notice of voluntary dismissal was valid and the trial court’s subsequent order striking that notice and imposing any sanctions pursuant to OCGA § 9-11-37 (b) was a nullity and must be reversed. Johnson v. Wade, supra.

Judgment reversed.

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

Sognier, Chief Judge,

concurring in part and dissenting in part.

I agree with the majority that, given the broad language of OCGA § 9-11-41 (a), appellant’s voluntary dismissal was authorized. I conclude, however, that the trial court was empowered to impose sanctions under OCGA § 9-11-37 (b) (2) (other than dismissal) for appellant’s prior failure to comply with an order granting a motion to compel.

OCGA § 9-11-37 (b) (2) provides in pertinent part that “[i]n lieu of any [orders awarding other sanctions], or in addition thereto, the I court shall require the party failing to obey the order [compelling dis-, covery] ... to pay the reasonable expenses, including attorney’s fees, caused by the failure.” (Emphasis supplied.) In American Express Co. v. Baker, 192 Ga. App. 21-23 (1) (383 SE2d 576) (1989), this court! addressed the question whether a motion for OCGA § 9-11-37 (b) (2) [ sanctions survived a voluntary dismissal in an action in which the de-! fendant had filed a counterclaim for abusive litigation. Applying the! Supreme Court’s decision in Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988), we concluded that because the abusivel litigation counterclaim remained pending after the voluntary dismis-| sal, the trial court retained jurisdiction to enter discovery sanctions. [

The analysis in Moore is equally applicable to the circumstances! in the instant case. The Supreme Court reasoned in Moore that al-l lowing both a voluntary dismissal and the continuation of an abusive| litigation counterclaim “preserves the right of a plaintiff to dismiss and the right of a defendant to recover for abuse of litigation.” (Foot-| note omitted.) Id. at 696-697. Moore recognized that even though the action was dismissed, the defendant nonetheless was entitled to re-| cover for abuses that occurred prior to dismissal. Id. at 697. Since the expenses and attorney fees sanctions of OCGA § 9-11-37 (b) (2) are¡ mandatory (absent certain limited exceptions) and are intended to compensate the moving party for expenses previously incurred in obtaining compliance with a court order compelling discovery, allowing a plaintiff to avoid such sanctions by voluntarily dismissing the complaint would thwart the purpose of OCGA § 9-11-37 (b) (2). Accord Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 578 (359 SE2d 441) (1987) (once a motion for sanctions has been filed their imposition cannot be precluded by a belated response to the discovery request). Nothing in OCGA § 9-11-41 (a) compels such a result. See generally Moore, supra at 696. Thus, I conclude the right of a defendant to recover expenses and attorney fees for a plaintiff’s violation of a discovery order entered prior to a voluntary dismissal survives the dismissal, and accordingly, I would affirm the award of attorney fees in this case.

Decided March 15, 1991.

C. B. King & Associates, Chevene B. King, Jr., for appellant.

Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.

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


author: Sognier, Chief Judge. Beasley, Judge, Andrews, Judge, McMurray, Presiding Judge,

text:
    A90A2358.
    HARRISON v. ELLIS.
    (404 SE2d 348)
   Sognier, Chief Judge.

Shannon Harrison was a passenger in a Pontiac Grand Am involved in an accident with a Buick LeSabre driven by Wanda Ellis. Suit was brought to recover damages for injuries Harrison incurred. The jury returned its verdict in favor of Ellis, and the trial court denied Harrison’s motion for a new trial. This appeal ensued.

In her sole enumeration of error, appellant contends the trial court erred by giving appellee’s requested charge based on OCGA § 40-6-46, regarding no passing zones. The transcript reveals that at the time the accident in issue occurred on Austell Road, that road consisted of two traffic lanes and a center turn lane. A K-Mart store was on the east side of the road; a Kentucky Fried Chicken and several other fast food restaurants were on the west side. Appellee was waiting in the exit to the K-Mart parking lot for the purpose of making a left turn southbound onto Austell Road. The evidence is uncon-Itroverted that northbound traffic on Austell Road had backed up prom a traffic light, but a pickup truck had left a gap open for K-Mart customers to exit the parking lot. Appellee crossed the northbound lane in front of the truck, and the collision in issue occurred in the center turn lane.

According to the testimony of appellant and her grandfather, Henry Buckland, the driver of the Grand Am, they were in the turn lane facing north but were at a complete stop in preparation for a left turn into the fried chicken restaurant. Appellant and Buckland both testified that appellee’s Buick hit their car, Buckland stating that ap-pellee “made too little sharp a turn” past the pickup truck. According to the testimony of appellee, however, it was Buckland’s car that struck her car as she entered the turn lane. Appellee testified that as she exited the K-Mart parking lot in front of the pickup truck she could see into the turn lane, and that she observed no vehicle stopped there as she entered the turn lane. She testified Buckland’s car was travelling between 15 to 25 miles per hour in the turn lane when it hit the front of her car.

The trial court charged the jury that “the defendant in the case [appellee] contends that the driver of the other vehicle [Buckland] violated Code section 40-6-46, and the defendant contends that the driver of the other vehicle was using the turning lane as a passing zone and was not authorized to do that. That is, the defendant is contending that the driver of the automobile in which the plaintiff was a passenger was prematurely in the turning lane, and that that was the negligence which caused the incident .... In this connection I charge you that the Department of Transportation and local authorities are authorized to determine those portions of any highway under their respective jurisdictions where overtaking and passing or driving to the left of the roadway would be especially hazardous, and may, by appropriate signs or markings on the roadway, indicate the beginning and the end of such zones, and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereof. Such no passing zones shall be clearly marked by a solid barrier line placed on the right hand element of a combination stripe along the center or lane line. I charge you that where signs or markings are in place to define a no passing zone as set forth ... no driver shall at any time drive on the left side of the roadway within such no passing zone or on the left side of any pavement striping designed to mark such no passing zone throughout its length. In this connection I further charge you that! this Code section does not apply to the driver of a vehicle who is turning left into or from an alley, private road, or driveway. That is, if you find that a driver is using it for the purpose of making a legal turn then it would not be a violation. If you find in the evidence that a driver was using it as a passing lane to pass the other traffic rather than to be making a turn then it would be a violation, if you so find,l of this Code section, and I charge you that a violation of this statu-l tory provision constitutes negligence per se.”

We agree with appellee that there was some evidence from which a jury could have found that the Grand Am was travelling in the turn lane, from which they could have inferred that Buckland was improperly using the turn lane as a passing lane. The fact that there is some slight evidence to support the charge, however, does not end the inquiry since appellant’s argument, raised both before this court and the trial court, is that the reason why the Grand Am was in the turn lane had no bearing on the resolution of the issue before the jury, which was simply whether appellee had improperly failed to yield the right-of-way to the Grand Am. Appellant argues that even assuming, arguendo, that Buckland was improperly using the turn lane as a passing lane, appellee was obligated under OCGA § 40-6-73 to yield the right-of-way “to all vehicles approaching,” an obligation which this court has held exists even though the approaching vehicle is doing so in an illegal manner. Munday v. Brissette, 113 Ga. App. 147, 160 (10) (148 SE2d 55) (1966), rev’d on other grounds, 222 Ga. 162 (149 SE2d 110) (1966).

We do not agree. The driver of a vehicle has the right to assume that others using the roadways will obey the rules of the road. See Lusk v. Smith, 110 Ga. App. 36, 39-40 (137 SE2d 734) (1964). We interpret the language in Munday, supra, to mean that OCGA § 40-6-73 requires a driver entering a roadway to yield to an illegally approaching vehicle only where the driver of the entering vehicle has knowledge of the illegal approach of that vehicle, so as to embody the doctrine of last clear chance, see generally Lovett v. Sandersville R. Co., 72 Ga. App. 692, 695-698 (1) (34 SE2d 664) (1945), since the statute has otherwise been construed to place no duty on the driver entering the roadway to yield to even properly approaching vehicles if the approaching vehicles are not visible to the driver of the entering vehicle. See Simpson v. Reed, 186 Ga. App. 297, 299 (9) (367 SE2d 563) (1988). We note that while the trial court charged the jury extensively on proximate cause in the case sub judice, no charge on last clear chance was requested by either party and no such charge was given the jury. While a charge on last clear chance might have helped clarify the issue for the jury, in the absence of a request or any objection by appellant, it is not ground for reversal here that such a charge ¡was not given. See OCGA § 5-5-24 (a). It follows that since there was some evidence addressing the legality or illegality of the approach of Buckland’s vehicle in the turn lane, it was not error for the court to charge the law in relation to that issue. See generally Eubanks v. Nationwide Mut. Fire Ins. Co., 195 Ga. App. 359, 364 (393 SE2d 452) (1990).

I Judgment affirmed.

Banke, P. J., Birdsong, P. J., and Cooper, J., iconcur. Carley, Pope, Beasley and Andrews, JJ., concur specially. McMurray, P. J., dissents.

Beasley, Judge,

concurring specially.

If plaintiff’s driver was using the turn lane as a passing lane in violation of OCGA § 40-6-46, and the driver of the entering auto had a right to assume that others using the roadway would obey the rules of the road, Lusk v. Smith, 110 Ga. App. 36, 39-40 (137 SE2d 734) (1964), so that she could assume no one was coming in that lane to pass vehicles in the pickup truck’s lane, then she would have no duty to yield the right-of-way to an unknown and unseen vehicle because she had no duty to anticipate its advance. Obviously, if she saw or should have seen the approaching vehicle, OCGA § 40-6-73 would require her to yield, whether the approaching vehicle was proceeding legally or unlawfully. Munday v. Brissette, 113 Ga. App. 147, 160 (10) (148 SE2d 55) (1966), rev’d on other grounds, 222 Ga. 162 (149 SE2d 110) (1966).

On the other hand, the driver of the entering auto had a duty to anticipate the approach of vehicles using the lane legally to make left turns and, in this regard, to yield even to unseen and unknown such vehicles. OCGA § 40-6-73. That is, since she could not see, she knew there might be unknown and unseen vehicles lawfully approaching. She took a risk of violating OCGA § 40-6-73 by relying on the pickup truck driver’s indication that there were no vehicles to prevent a safe entry. Munday, supra, supports this conclusion in its emphasis on the statutory “all vehicles.”

Simpson v. Reed, 186 Ga. App. 297, 299 (9) (367 SE2d 563) (1988), is not in error as written because there may have been evidence that the driver of the entering vehicle exercised ordinary care in determining that no vehicle was approaching. If he did, then he would not be failing to yield to any vehicle in violation of OCGA § 40-6-73.

Andrews, Judge,

concurring specially.

Although I agree with the majority’s result, the concern I have with both the majority and dissenting opinions is that they seem to confuse the issue of negligence per se with the question of causation. The discussion of OCGA § 40-6-73 and the duty to yield is irrelevant here.

Plaintiff’s sole enumeration of error is the trial court’s charging of OCGA § 40-6-46, regarding no-passing zones. It is clear that there was sufficient evidence, to justify a charge thereon, that the driver of the automobile in which plaintiff was a passenger violated that Code section. I

However, plaintiff argues, and the dissent agrees, that the estab-l lishment of defendant’s violation of OCGA § 40-6-73 removes from! the jury the issue of plaintiff’s driver’s negligence. This interpretation of § 40-6-73 implicitly removes the issue of proximate cause from the jury. Taken to its extreme, this logic would result in an exiting automobile being absolutely liable for a collision, even if such vehicle exited onto a street at night and collided with a speeding vehicle which had its lights off. Moreover, this position converts cases involving OCGA § 40-6-73 into matters of summary adjudication. Even assuming the dissent’s interpretation of OCGA § 40-6-73 to be correct, I disagree with the consequences the dissent concludes are required by such interpretation.

Negligence per se is not liability per se. Negligence per se is actionable negligence only where it is the proximate cause of plaintiff’s injuries. Sumner v. Otasco, Inc., 175 Ga. App. 177 (333 SE2d 28) (1985). Proximate cause is for the jury to decide. DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811 (278 SE2d 712) (1981); Garner v. Driver, 155 Ga. App. 322 (270 SE2d 863) (1980).

I would affirm the trial court on the sole basis that the evidence authorized the charge.

I am authorized to state that Judge Carley and Judge Pope join in this special concurrence.

McMurray, Presiding Judge,

dissenting.

Appellee was in her car, waiting in the exit from the K-Mart parking lot for the purpose of making a left turn onto Austell Road. Austell Road consisted of three lanes, a traffic lane in either direction and a center turn lane. The traffic moving from left to right in front of appellee in the northbound traffic lane was backed up from a traffic light, but a pickup truck had stopped before the K-Mart exit so as to leave a gap open for vehicles to leave the K-Mart parking lot. The driver of the pickup truck motioned for appellee “to come out,” and this she did. While appellee testified that she looked to the right, it is clear from her testimony that her vision to the left, the direction from which appellant was approaching, was entirely obstructed by the proximity and size of the pickup truck. Appellee testified: “I gradually pulled out to see around the pickup truck.” In other words, ap-Ipellee blindly pulled into the path of anyone moving northward in the turn lane and was struck by the vehicle in which appellant was a passenger.

Appellee’s reliance upon blind luck and the driver of the pickup [truck, clearly resulted in her failure to yield the right-of-way in com[pliance with OCGA § 40-6-73. Resolution of whether the vehicle occupied by appellant was improperly using the turn lane may be an interesting academic exercise, but the answer is irrelevant since OCGA § 40-6-73 is applicable without regard to whether the approaching vehicle is doing so in an illegal manner. See Munday v. Brissette, 113 Ga. App. 147, 160 (10) (148 SE2d 55), rev’d on other grounds, 222 Ga. 162 (149 SE2d 110).

I cannot agree with the majority’s construction of the decision in Munday v. Brissette, 113 Ga. App. 147, 160 (10), supra. This decision is based on a straightforward reading of the clear and concise statutory language now set forth in OCGA § 40-6-73, which provides: “The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” (Emphasis supplied.) The crux of the statute lies in the two emphasized words which were likewise emphasized in Munday. There are no exceptions, qualifications or conditions attached to these two words. As appellee sought to enter the roadway from an adjacent parking lot, she was required by this statutory language to yield the right-of-way to all vehicles upon the roadway (including the automobile carrying appellant), period, end of discussion.

I would also hold that the judicial revision of OCGA § 40-6-73, created by our decision in Simpson v. Reed, 186 Ga. App. 297, 299 (9) (367 SE2d 563), is not well founded and should be overruled. In Simpson, an exception to the rule set forth in OCGA § 40-6-73 was created by judicial fiat, removing the obligation of a motorist entering a roadway to yield to an unseen vehicle approaching on the roadway. Not only does the Simpson exception lack support from the authority cited therein or from the statutory language, it undermines the basic statutory scheme. OCGA § 40-6-73 should be read as requiring that a motorist may not enter or cross a public roadway unless such motorist can see approaching traffic sufficiently well as will permit the motorist j to comply with the statutory obligation to yield to all vehicles approaching on the roadway. Where the vision of a motorist entering I the roadway is obscured, the statute should be construed to prohibit the motorist proceeding blindly and to require the motorist to wait or | seek another route of access to the roadway.

Appellant contends that the trial court erred in giving appellee’s I requested charge based on OCGA § 40-6-46, regarding no-passing J zones. Since the resolution of the issue thus addressed, as to whether! the vehicle in which appellant was a passenger was properly using thej turn lane, does not alter appellee’s duty to yield to all vehicles ap-l proaching on the roadway pursuant to OCGA § 40-6-73, the charge onl OCGA § 40-6-46 is not adjusted to the evidence presented at trial.I Since the improper charge may have contributed to the verdict which! is adverse to appellant, I would reverse. For the stated reasons, I re-| spectfully dissent.

Decided March 15, 1991.

C. Lawrence Jewett, Jr., for appellant.

Bovis, Kyle & Burch, Charles M. McDaniel, Jr., for appellee.

       As noted above, the plaintiff here was a passenger and the trial court’s charges on iroximate cause were properly adjusted to this factual situation.


author: Birdsong, Presiding Judge.

text:
    A90A2035.
    FOSKEY v. FOSTER.
    (404 SE2d 303)
   Birdsong, Presiding Judge.

The question in this appeal is whether, prior to the amendment of the “expert affidavit requirement” statute involving medical malpractice cases (OCGA § 9-11-9.1 (e), (f); Ga. L. 1989, p. 419, § 3), a plaintiff could simply file a “renewal” of a medical malpractice suit by permission of OCGA § 9-2-61 which permits “renewal” of dismissed lawsuits when refiled within six months of the dismissal.

Plaintiff first filed a malpractice complaint against a physician and the medical center where the physician worked, and attached an expert’s affidavit with regard to the actions of the physician. When plaintiff discovered appellee was the actual medical center defendant, he transferred the complaint to Laurens County which is the jurisdiction of appellee, but failed to attach any expert affidavit to this refiled (transferred) complaint. When appellee filed a motion to dismiss for failure to attach an expert’s affidavit, the trial court granted a dismissal without prejudice upon plaintiff’s own motion. Upon the attempted “renewal” of the suit by plaintiff, the trial court granted ap-pellee’s motion for summary judgment. Plaintiff appeals. Held:

Amended paragraphs (e) and (f) of OCGA § 9-11-9.1 provide that the failure to attach an expert affidavit in a professional malpractice case renders the complaint subject to dismissal and is a defect which cannot be amended except where the failure to attach the complaint “was the result of a mistake,” and unless such failure was “the result of a mistake,” such complaint shall not be subject to the renewal provisions of OCGA § 9-2-61 after the applicable period of limitation. Even prior to the effective date of this enactment, the Supreme Court held in St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) that the failure to attach an expert affidavit was not a nonamendable defect in the circumstances of that case where plaintiffs had an expert affidavit which defendants had notice of in a prior filing and plaintiffs’ failure to attach an affidavit was merely a matter of “neglect.” The court also said: “Under the statute, failure to obtain the affidavit might be a fatal defect. Failure to file it with the complaint is an amendable defect because Ts not the chief object of amendment the correction of mistakes?’ [Cit.]” (Emphasis supplied.) Id. at 155; see also fn. 3, reconciling but not overruling prior decisions to this discriminating statement.

Decided March 1, 1991

Rehearing denied March 19, 1991

Nathan B. Deaton, David B. Pittman, Charles E. Cardin, for appellant.

Jones, Cork & Miller, C. Ashley Royal, Thomas W. Joyce, for appellee.

We conclude that the intent of the statute as it existed at the time of this suit was the same as the legislature has now provided in paragraphs (e) and (f), which is (except as provided in paragraph (b)) to cause the dismissal of a malpractice suit where an expert affidavit was not filed, unless such an affidavit had been obtained and the plaintiff by mistake or neglect merely failed “to file it.” See St. Joseph’s Hosp., supra. The renewal statute is available only where the original action was a “valid suit” (see Hornsby v. Hancock, 165 Ga. App. 543 (301 SE2d 900)); if a complaint is dismissed for a defect that is nonamendable, there is no “valid suit” to be renewed.

We cannot conclude there is no evidentiary support for the trial court’s finding that the record was “lacking any evidence” that plaintiff’s failure to file its expert affidavit in the transferred case where he first added appellants as defendants, was a mistake.

In any case, even if we were to consider that an affidavit was “obtained” but by mistake was simply not “filed,” the trial court correctly ruled that the affidavit which plaintiff had attached to the original complaint refers only to the physician and asserts no expert opinion as to negligence of the appellee.

Accordingly, the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

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


author: Carley, Judge.

text:
    A90A2068.
    THE STATE v. McKENNA.
    (404 SE2d 278)
   Carley, Judge.

After appellee was charged with driving under the influence, he filed a pre-trial motion to exclude from evidence both a printout showing the results of his Intoximeter test and any testimony with regard thereto. The trial court granted appellee’s motion, based upon its determination that the printout had been materially altered. The order was certified for immediate review and the State appeals from the trial court’s evidentiary ruling pursuant to this court’s grant of its application for interlocutory appeal.

Although this court granted the State’s application for an interlocutory appeal and appellee has not filed a motion to dismiss, “we are required to examine the record to make certain we possess jurisdiction. [Cits.]; Rule 32 (d) of our court ([eit.]) requires that whenever it appears to the court that it has no jurisdiction of a pending appeal, it will be dismissed whenever and however its lack of jurisdiction may appear. [Cit.]” Flowers v. State, 155 Ga. App. 256, 257 (270 SE2d 695) (1980).

The authority of the State to appeal an adverse ruling in a criminal case is controlled by statute. “An appeal may be taken by and on behalf of the State of Georgia ... in criminal cases in the following instances: . . . From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.” (Emphasis supplied.) OCGA § 5-7-1 (4). This statute is not so limited in scope as to authorize the State to appeal only from the grant of a pre-trial motion to suppress under OCGA § 17-5-30. If the defendant in a criminal case files any pre-trial motion to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion may be appealed by the State. State v. Brown, 185 Ga. App. 701 (365 SE2d 865) (1988). See also State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984) (involving the grant of a pre-trial motion in limine, “excluding evidence of the results of a breath test claimed to have been made in violation of OCGA § 40-6-392 and the regulations of the Department of Public Safety”).

In the instant case, however, appellee’s pre-trial motion did not seek the exclusion of any evidence on the ground that it had been obtained in violation of law. The exclusion of the test results was based upon the trial court’s finding of a material alteration thereof. Accordingly, OCGA § 5-7-1 (4) is not authority for the State to bring this appeal. State v. Brown, supra at 702. See also State v. Thomas, 176 Ga. App. 106 (335 SE2d 697) (1985); State v. Gosch, 179 Ga. App. 613 (347 SE2d 353) (1986). Since the order from which this appeal has been taken is not one which is enumerated in OCGA § 5-7-1, the ¡State’s compliance with the requirements for securing an interlocutory appeal would not serve to confer the requisite jurisdiction upon this court. State v. Hollomon, 132 Ga. App. 304 (208 SE2d 167) (1974). We had no initial jurisdiction to grant the State’s application [for an interlocutory appeal from the trial court’s evidentiary ruling land it follows that the instant appeal must be dismissed.

| Appeal dismissed.

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

Decided February 4, 1991

Rehearing dismissed March 19, 1991.

Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellant.

Harrison & Harrison, G. Hughel Harrison, for appellee.


text:
    A90A1652.
    HENDRICKS v. EMERSON.
    (404 SE2d 279)
   Cooper, Judge.

Appellant, a general partner in several limited partnerships, was sued along with the partnerships in an action filed in the Superior Court of Douglas County. It was alleged in the complaint that appellant had committed numerous wrongful acts related to the misappropriation and conversion of funds invested in the partnerships, and part of the relief sought was that a receiver be appointed to manage the assets of the partnerships. The parties to the lawsuit entered into a consent order which made appellee the receiver of the assets of the partnerships and which further provided that upon appellant’s compliance with certain requirements in the order, he would no longer be a party to the case.

The record reflects that sometime after appellee was appointed as receiver, the style of the case was changed to reflect that appellant was not a party to the case. The receiver began to experience difficulty in accounting for the assets of the partnerships due to an alleged failure by appellant to produce partnership records pursuant to the consent order. Subsequently, appellant was served with a witness subpoena to appear and be deposed by appellee. A few days before the scheduled deposition, appellant filed an action in the Superior Court of Fulton County seeking to enjoin the deposition. At the hearing on the injunction, the parties agreed to postpone the deposition j until the Superior Court of Douglas County could hear any objection appellant had to the deposition. After attempting to schedule the deposition several times without success, appellee filed a motion to compel, and appellant did not file a motion to quash the subpoena as! required by OCGA § 9-11-45 (b), but instead filed an Objection to! Subpoena and Motion for Protective Order. The Superior Court of| Douglas County, after hearing evidence, granted appellee’s motion t< compel, denied appellant’s motion for protective order and reserved| ruling on appellee’s request for attorney fees. Following the deposition, the court heard evidence on appellee’s claim for attorney fees and entered an order granting appellee $1,000 in attorney fees. This appeal is from that order.

1. Appellant’s first enumeration of error, that the trial court erred in allowing a court-appointed receiver to take a deposition, is without merit. “A receiver is an officer of the court which appoints him, and his duty upon his appointment is to take possession of the assets of the insolvent debtor for the court and to preserve those assets so that upon distribution of the assets to the creditors they will be fully available to pay the claims of the creditors. [Cits.]” Shaw v. Caldwell, 229 Ga. 87, 91 (2) (189 SE2d 684) (1972). It appears that the purpose of the deposition was to aid the receiver in accounting for the assets of the partnerships, thus we find no error in the trial court allowing the receiver to take the deposition.

2. In his remaining enumerations of error, appellant contends that the trial court erred in awarding attorney fees to appellee. The transcript from the hearing on appellee’s claim for attorney fees reflects that after filing the subpoena, appellee’s attorneys attended the hearing on appellant’s request for a restraining order, attempted to work with appellant’s attorneys regarding a mutually convenient date for the taking of appellant’s deposition, prepared and filed a motion to compel the deposition, and attended a hearing on both the motion to compel and the motion for attorney fees. Although appellee requested over $1,700 in attorney fees, the court awarded only $1,000. Contrary to appellant’s argument, we find ample evidence in the record to authorize an award of attorney fees and conclude that the trial court did not abuse its discretion in awarding attorney fees.

Appellant also argues that the trial court’s award was based partially on the time spent by appellee’s receiver in the hearing on the temporary restraining order in Fulton County, which does not constitute an expense incurred in obtaining the order to compel. OCGA § 9-11-37 (a) (4) provides that “[i]f the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or depo-jnent whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees. . . (Emphasis supplied.) Appellant has failed to show by the record that the award includes an amount for expenses not incurred in obtaining the order compelling the deposition. The trial court did not award the full amount of fees requested [by appellee’s attorneys and did not specify in its order the services for [which appellee’s attorneys were being compensated. “ ‘It is still the [law of Georgia that the burden is upon the party asserting error on [appeal to show such error by the record.’ [Cits.]” Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397, 398 (370 SE2d 520) (1988). Accordingly, we find no error with the trial court’s award of attorney fees.

I 3. We cannot conclude that the appeal was brought only for delay, therefore, we deny appellee’s motion for frivolous appeal. See City of Atlanta v. Murphy, 194 Ga. App. 652 (3) (391 SE2d 474) (1990).

Decided February 6, 1991

Rehearing denied March 20, 1991

Curtis R. Boren, for appellant.

Glover & Davis, Delia T. Crouch, for appellee.

Judgment affirmed.

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


text:
    A90A2244.
    BEIDER v. THE STATE.
    (404 SE2d 312)
   Birdsong, Presiding Judge.

Richard Alan Beider appeals his conviction for possession of marijuana. He alleges that the trial court erred by denying his motion to suppress; he also alleges that as his conviction was based upon illegally obtained evidence, the trial court erred by entering his conviction and sentence. Held:

1. Although Beider contends his motion to suppress should have been granted because the rangers searched his truck after an illegal investigative stop, the trial court, after an evidentiary hearing on his motion, found that rangers from the State Department of Natural Resources were engaged in a legitimate investigative stop and that the subsequent seizure of the drug was authorized. Decisions on questions | of fact and credibility made at a suppression hearing must be ac-[ cepted unless clearly erroneous. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). The evidence introduced at the hearing shows that two rangers were investigating reports of illegal night hunting when they approached Beider and his friend. In the course of this! conversation, one of the rangers said that he saw marijuana in the| front of Beider’s truck. This evidence amply supports the findings of! the trial court. Further, we are satisfied that the ranger’s conduct, i.e.,| looking in the truck window, did not constitute an illegal intrusion! into Beider’s truck. Freeman v. State, 195 Ga. App. 357 (393 SE2d 496); Galloway v. State, 178 Ga. App. 31, 33-34 (342 SE2d 473). Accordingly, the trial court did not err by denying Beider’s motion tc suppress.

2. In view of our holding in Division 1, there was sufficient evi-l dence to support the conviction under the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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

Decided March 5, 1991

Rehearing denied March 20, 1991.

Paul S. Weiner, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.


text:
    A90A1624.
    YANDLE v. MITCHELL MOTORS, INC.
    (404 SE2d 313)
   Carley, Judge.

A notation was placed in appellant-plaintiff’s personnel file indicating that the reason for the termination of his employment as ap-pellee-defendant’s salesman was a “lack of sales effort resulting in low production.” When prospective employers thereafter contacted appel-lee to inquire about appellant’s work history, this information from his personnel file was read to them. Alleging that these communications were defamatory, appellant brought the instant tort action against appellee. After discovery, appellee successfully moved for summary judgment. Appellant appeals from the trial court’s grant of summary judgment in favor of appellee.

In his deposition, appellant acknowledged the literal truth of the allegedly defamatory communications. He conceded that “what happened” in the five months preceding the termination of his employ-pent was a “lack of sales effort resulting in low production” on his part, but he nevertheless urged that the communications were “just ¡very incomplete.” According to appellant, the communications were [‘incomplete” because they failed also to inform prospective employers that it was his child’s very serious illness which had been the un-¡Jerlying reason for his “lack of sales effort resulting in low production.”

I “To be actionable the [allegedly defamatory] statement must be both false and malicious. [Cit.]” Williams v. Trust Co. of Ga., 140 Ga. App. 49, 50 (I) (230 SE2d 45) (1976). “The truth of the charge made may always be proved in justification of an alleged libel or slander.” |)CGA § 51-5-6. The evidence of record in the instant case demonstrates that appellant seeks to recover under the theory that the alleg-Idly defamatory communications to prospective employers “did not jell the ‘whole truth’ rather than that [they were] false. . . . ‘[A]n ■mission of information from a statement admittedly published will ftot support an action for libel. [Cit.]’ [Cit.]” Jim Walter Homes v. Strickland, 185 Ga. App. 306, 309 (1) (363 SE2d 834) (1987). Having ftruthfully reported the immediate cause for its decision to discharge ipellant, appellee may have had a moral duty also to report any underlying extenuating circumstances, but its failure to have done so was not a breach of a legal duty which exposed it to liability for defamation.

Decided March 7, 1991

Rehearing denied March 21, 1991

I Hatcher, Irvin & Pressley, Jerry B. Hatcher, for appellant.

Schwall, Ruff & Goodman, Emory A. Schwall, Robert S. Wayne I for appellee. I

Appellant’s reliance upon Kaplan v. Edmondson, 68 Ga. App. 151 (22 SE2d 343) (1942) and the concept of defamation by innuendo is misplaced. “The office of an innuendo is merely to explain the ambiguity, where the precise meaning of terms employed in an alleged [defamatory] statement may require elucidation.” Whitley v. Newman, 9 Ga. App. 89 (2) (70 SE 686) (1911). However, there is no issue in the instant case as to whether the language contained in the communications which were published to appellant’s prospective employers is construable as an actionable defamation. The language of those communications is unambiguous and, if otherwise shown to be both false and malicious, clearly could authorize a recovery for defamation. See generally Stanley v. Moore, 48 Ga. App. 704 (173 SE 190) (1934). The dispositive issue in the instant case is whether the unambiguous communications were true and would, therefore, afford appellant no basis for a recovery. As previously discussed, an omission from the otherwise truthful communications of a reference to the underlying extenuating circumstances regarding the termination of appellant’s employment did not render those communications false and actionable defamations.

The undisputed evidence of record shows that no genuine issue of material fact remains as to truth of the allegedly defamatory communications. It follows that the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A90A2320.
    SHAW v. HUGHES.
    (404 SE2d 309)
   Sognier, Chief Judge.

Pennie Shaw brought suit against Joseph Hughes, her forme husband, for equitable partition of real estate. He filed a counterclaim for conversion of certain guns he had been awarded pursuant to then Florida divorce decree but which had not been turned over to hinl The equitable partition claim was resolved, and the counterclaim was tried before a Tattnall County jury, which entered a verdict awarding Hughes possession of the guns or, in the alternative, damages of $6,437. Shaw appeals from the denial of her motion for new trial.

1. We cannot review appellant’s enumerations addressing the denial of her motion for summary judgment because that ruling became moot when the court reviewed the evidence upon trial of the case. Brown Realty Assoc. v. Thomas, 193 Ga. App. 847 (1) (389 SE2d 505) (1989).

2. Appellant maintains the trial court erred by refusing to allow her proposed amendments to the pretrial order made 19 months after the pretrial order was entered. Once a pretrial order has been entered, it may be amended only by agreement of the parties or order of the court, Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980), and the decision whether to allow modification of a pretrial order is within the trial court’s discretion. Morgan v. State of Ga., 172 Ga. App. 375, 376 (323 SE2d 620) (1984). Since appellant does not indicate, nor does the record reflect that she was prevented from calling any witnesses listed in her proposed amendment or from advocating any legal or evidentiary theories espoused therein, she can show no harm resulting from the trial court’s decision. To the extent that her brief challenges the trial court’s refusal to allow appellee’s proposed pretrial amendment, appellant has no standing to raise that issue. Accordingly, we find no error.

3. Appellant contends the trial court erred by allowing both her original answer and amended answer to be included in the exhibits sent to the jury room, and maintains that only the amended answer should have been sent to the jury. In her first answer, appellant ad-Imitted having possession of some of the guns described in the counterclaim and stated she was holding possession for and on behalf of [appellee, whereas in her amended answer, she denied having withheld [or converted any property belonging to appellant, and stated that the [description in the counterclaim of the items alleged to have been concerted was so vague that she could not make a further response.

I “ ‘[A]dmissions made in pleadings constitute a conclusive presumption of law, unless and until altered by amendment. Even though such admissions be so altered or withdrawn, they can still be lised as evidence on the trial, but, in such event, not as solemn admissions in judicio so as to estop the party making them from denying them. [Cits.]’ [Cit.]” C & S Realty Investors v. L. G. Balfour Co., 152 Ea. App. 852, 853 (2) (264 SE2d 304) (1980). During her trial testi-Inony, appellant explained that the first answer was amended to correct an error, and she also testified at length on the issue whether she Jiad possession of any of the guns at issue. Under these circumstances, e find no error.

4. Appellant also enumerates as error the denial of her motions for directed verdict as to liability and damages.

(a) Liability: Construed to support the verdict, the testimony adduced at trial established that before and during his marriage to appellant, appellee acquired 12 guns, some of which were newly manufactured and some of which were collector’s items. He testified that he purchased several of the guns, some were gifts from his father, and the remaining firearms were gifts from appellant or her father, Sam Brunson. Sometime after the parties moved to south Florida, appellee began storing his guns with Brunson at Brunson’s South Carolina home because the humid Florida climate was not ideal for firearms. Appellee stated that on occasion appellant brought the guns from her father’s home to Florida for appellee to fire and then took them back to South Carolina. He denied having given any of the guns to Brun-son, and stated that the firearms were with Brunson only for safekeeping.

The decree issued upon the parties’ divorce provided that appel-lee was to receive “the approximate 12 guns” he collected during the marriage. Appellee recalled that at the time he and appellant separated, some of the guns at issue were in their Florida home, although he was unable to specify which ones. However, once appellant movec her belongings out of the marital residence, appellee had none of the specified guns in his possession. Appellee testified that he made demands on appellant for return of the guns, but did not receive them. He stated that to the best of his knowledge the guns at issue were at Brunson’s home. Appellant denied ever having been in possession of any of the guns at issue other than a .38 Smith & Wesson pistol, which she testified was a gift to her from Brunson.

“Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another, hostile to his rights, an act of dominion over personal property inconsistent with his rights, or an unauthorized appropriation. [Cits.] Proof oí conversion is essential if the defendant is not in possession when the action is brought. [Cit.]” McGlamory v. Marcum, 118 Ga. App. 516 (1) (164 SE2d 274) (1968). In her first answer, appellant admitted possession of “some or all of the [guns] listed” in appellee’s counterclaim. Although she amended her answer to deny possession and conversion and also denied possession during her testimony at trial, tha “admission [in her original answer] is some evidence, in and of itself! to take to the jury the question of whether it or contrary evidence in true” even though the admission was later disavowed. Richmond County v. Sibert, 218 Ga. 209, 212 (1) (a) (126 SE2d 761) (1962). We find the admission in appellant’s answer alone constituted evidencJ sufficient to present a jury question on the issue of possession of thii guns, and thus we affirm the denial of appellant’s motion for directed verdict. See id.

(b) Damages: Appellant’s contention that the alternative damages award made by the jury was not supported by the evidence is similarly without merit. In a trover and conversion case, “[t]he value or market price of an article may be shown by direct or circumstantial evidence, or both, and the question of the value of an article is peculiarly for the jury. The jury may consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge throwing light upon the question. [Cits.]” Sapp v. Howe, 79 Ga. App. 1, 2 (1) (52 SE2d 571) (1949). Each party presented the testimony of a firearms expert who testified concerning a range of value for the guns depending on their condition. In addition, appellee stated the purchase price he paid for the firearms he bought. This testimony supported the damage award made by the jury, and accordingly we find no error. See id.

5. Appellant next enumerates as error the trial court’s refusal to give a charge on bad character as a method of impeachment. The record reveals that appellant presented the testimony of Charles Farrar, a priest of the Episcopal church appellant attended while she lived in Florida, who testified that his “opinion” of appellee’s reputation for integrity and honesty was “bad.” The court charged the jury that “[a] [witness may be impeached by a) disproving the facts to which he testified, or she testified or b) by proof of contradictory statements previously made by the witness as to matters relevant to his or her testimony and to the case and by other methods not applicable in this case.” Appellant objected to the omission of proof of bad character as a method of impeachment, but the trial court overruled the objection [because the witness had merely expressed his personal opinion as to ¡appellee’s character rather than stating what appellee’s reputation in ¡the community was, and because appellant did not submit a written ¡request to charge.

I When testimony is offered to prove bad character, the witness should testify regarding his knowledge of the general character of the subject, and bad character cannot be proved by the personal opinion |)f the witness. See OCGA § 24-9-84; see also Haynes v. Phillips, 67 Ga. App. 574, 576-577 (21 SE2d 261) (1942). Accordingly, the trial i;ourt correctly concluded that a charge on impeachment by proof of Bad character was not warranted by the evidence adduced. Moreover, It is not error to deny an oral request to charge. Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (4) (345 SE2d 56) (1986). This «numeration is without merit.

H 6. In her final enumeration, appellant maintains the verdict was Illegal because the alternative damages award was not supported by ■he evidence and the verdict did not indicate with the requisite decree of specificity which firearms appellant was being directed to return. “ ‘[A]fter rendition of a verdict, all of the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.’ [Cit.]” Gilman Paper Co. v. James, 235 Ga. 348, 350 (219 SE2d 447) (1975). We have rejected appellant’s contention concerning the damages portion of the verdict in Division 4 (b), supra. To the extent that the verdict, taken alone, does not clearly indicate what guns are to be returned to appellee, when the verdict is construed with the evidence adduced at trial, the reasonable intendment of the jury is clear. See generally Lingerfelt v. Hufstetler, 137 Ga. App. 723, 724 (224 SE2d 827) (1976).

Decided March 5, 1991

Rehearing denied March 21, 1991

Stephen H. Harris, for appellant.

B. Daniel Dubberly III, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.