author: Sognier, Chief Judge. Carley, Judge, Beasley, Judge,

text:
    A90A1731.
    NEWSOME et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
    (405 SE2d 61)
   Sognier, Chief Judge.

Jackie Newsome and James Ricks, the natural parents of Remono L. “Rusty” Ricks and Jennifer Nichole Ricks, minors, brought suit against the Georgia Department of Human Resources (“DHR”) and its then Commissioner, James G. Ledbetter; several Emanuel County Department of Family & Children’s Services (“DFCS”) employees, including Iris M. Leonard and Billy K. Scott; and Roy Lee Habersham and Sandra Habersham, seeking damages for the wrongful death of their son Rusty and injury to their daughter Jennifer Nichole, as a result of a fire at the home of the Habershams, foster parents with whom the children had been placed. The action was filed in Fulton County, where it is undisputed Ledbettér resided. Ledbetter was subsequently voluntarily dismissed from the action by the plaintiffs. The Fulton County court then granted the remaining defendants’ motion to transfer venue to Emanuel County. All the defendants then moved for and were granted summary judgment in Emanuel County, and Newsome and Ricks appeal.

1. Appellants contend the Fulton County court erred by transferring the action to Emanuel County. Appellants argue that venue was proper in Fulton County because they sought to hold DHR jointly and severally liable for the actions of its employees on the theory of respondeat superior, that venue against DHR lies in Fulton County, and thus the action may be maintained in Fulton County against the appellees as joint tortfeasors under Ga. Const. of 1983, Art. VI, Sec. II, Par. IV. We do not agree.

Venue in actions against DHR is set by OCGA § 31-2-5 “in the appropriate county.” We have found no cases, and the parties have cited none, construing the phrase “appropriate county.” That language first appeared in OCGA § 31-2-5 at the time of the adoption of the Michie Code as a revision of the predecessor statute, Ga. Code Ann. § 88-118, which placed venue for actions against DHR “in the county in which the cause of action originates.” Given that Ga. Code Ann. § 88-118 was never amended, and that OCGA § 1-1-2 provides that the adoption of the new Michie Code was intended only as a recodification and modernization of the old Code, and its enactment was not intended to alter the substantive law then in existence, we hold that the phrase “appropriate county” in OCGA § 31-2-5 means “the county in which the cause of action originated,” as provided in former Code Ann. § 88-118. Accordingly, this cause of action having originated in Emanuel County, the Fulton County court did not err by transferring the action to Emanuel County.

2. Venue in Emanuel County having been proper, we next address appellants’ contention that the grounds on which the Emanuel County trial court granted summary judgment to all defendants were erroneous.

(a) Appellants allege summary judgment was improperly granted in the Habershams’ favor based on parental immunity. The doctrine of parental immunity (a form of family immunity) is based on the public policy of keeping families intact and discouraging proceedings which tend to disrupt family tranquility, and shields a parent or one standing in loco parentis from suit by an unemancipated minor. Clabough v. Rachwal, 176 Ga. App. 212, 213 (335 SE2d 648) (1985). The doctrine was first held to apply to foster parents in Brown v. Phillips, 178 Ga. App. 316-317 (1) (342 SE2d 786) (1986). In Brown, we held that although foster parents are not the source of their foster children’s financial support, it is their responsibility, “in their role as foster parents selected and approved by DFCS, to discharge the duties of the parental relationship by receiving [foster children] into their home and caring for [them] as if [they] had been their own child. [Cit.]” Id. Accordingly, since Brown, foster parents have been clothed with parental immunity identical to that afforded natural parents, and are entitled to assert it as a defense to any action brought against them by their foster children for torts allegedly committed by them during the period during which they stood in loco parentis. We would agree that it should be applied here, as in Brown, but for the fact that after the fire appellants’ children were removed from the Habershams’ home and placed with another foster family, and thus the Habershams did not stand in loco parentis to the children at the time this action was filed.

Even accepting the special concurrence’s analogy of the situation in the case at bar to that of an emancipated child, reliance on cases decided long before the Supreme Court’s holding in Nelson v. Spalding County, 249 Ga. 334, 337-338 (3) (a) (290 SE2d 915) (1982) misses the mark. “In Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 340 (183 SE 210) [(1935)], this court held that ‘an action is maintainable, if the child was emancipated at the time of the tort and the action.’ The Supreme Court, however, declined to follow this narrow view in [Nelson, supra], concluding that the interspousal immunity doctrine was applicable where, after the collision giving rise to the cause of action, the plaintiff married the defendant. Thereafter, this court held that in determining whether a defendant is immune from suit, we will not find controlling the status of the ‘relationship’ at the time the cause of action accrued, rather we will look ‘to the status of the relationship at the filing of suit and thereafter.’ (Emphasis supplied.) [Cits.] Clearly under the precedent established by this authority, the [status of the parties] at the time of the accident was not controlling.” Arnold v. Arnold, 189 Ga. App. 101, 103-104 (375 SE2d 225) (1988). In Arnold, the Nelson test was applied in a case of first impression in which an unemancipated minor brought suit against a sibling. The defendant sibling was unemancipated at the time the asserted cause of action arose, but had attained majority before trial commenced. We determined that under those circumstances, applying Nelson, the defendant was not entitled to immunity as she was by law an adult. The Supreme Court affirmed our decision in Arnold with full knowledge of the manner in which Nelson had been applied and thus the characterization of that affirmance in the special concurrence is misleading. See also Trust Co. Bank v. Thornton, 186 Ga. App. 706, 709-710 (368 SE2d 158) (1988); Morris v. Brooks, 186 Ga. App. 177 (366 SE2d 777) (1988); Clabough, supra at 214. In Morris and Clabough the Nelson test was used in application of the parental immunity doctrine. Even conceding the merit of appellees’ argument that the Morris case has no precedential value because only two judges of this court concurred fully, Clabough is fully precedential, and thus we conclude that application of the doctrine of parental immunity is controlled by the status of the relationship of the parties at the time the action is filed.

We see no reason to refuse to apply the time of filing test when the relationship at issue is that of foster parents and children rather than natural parents and children. Rather, we find that application of this test is completely in accord with the reasoning originally stated in Brown for clothing foster parents with parental immunity. When a parenting relationship exists, even on an impermanent basis, allowing suit against the parent on behalf of the child violates the public policy of this state favoring the preservation of family tranquility and affording to foster children an environment which resembles, as much as is possible, a natural family. If the foster parent-child relationship no longer exists between the parties, however, concern for the quality and stability of that relationship necessarily abates, thus canceling the reason behind the grant of immunity.

The logic behind the withdrawal of immunity when the condition motivating its creation ceases is analogous to the reasoning in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (357 SE2d 569) (1987), for the waiver of sovereign immunity when the provision of liability insurance obviates concern about damaging the public fisc. Here, as in Martin, “[o]ur duty is to honor that articulation of public policy,” id., and remove the shield of immunity when the reason for its original extension no longer exists. It is in accord as well with the Supreme Court’s reasoning in Harris v. Harris, 252 Ga. 387, 388 (2) (313 SE2d 88) (1984). In holding that the doctrine of interspousal immunity would not be applied to bar suit where the parties, although not divorced, had been separated for many years, the Supreme Court pointed out that “there was, realistically speaking, no ‘marital harmony’ to be protected by application of the interspousal immunity rule. Nor is there in the record any hint of collusion between the Har-rises or of intent to defraud an insurance company. Under these peculiar facts we merely hold, consistent with the principles reviewed in Robeson [v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981) (setting forth the ‘traditional policy reasons favoring retention of the common-law immunity rule’)], that the reasons for the immunity rule simply do not exist here, and that the doctrine of interspousal tort immunity does not apply to bar [this] claim.” (Emphasis supplied.) Harris, supra. Stanfield v. Stanfield, 187 Ga. App. 722 (371 SE2d 265) (1988), cited in the special concurrence, is an aberration unless construed simply as a holding that, unlike the situation in Harris, supra, the evidence in Stanfield was not sufficient to show that the reasons for immunity no longer existed.

Thus, while appreciating that there are certainly some arguments to be made in favor of continuing indefinitely the grant of immunity to foster parents, these arguments are no stronger than those made against eliminating the waiver in other immunity situations, and consequently we cannot agree with the trial court that foster parents should be made the lone exception to a hitherto exceptionless rule. Accordingly, we hold that as the foster parent relationship no longer exists between the parties in this case, the trial court erroneously granted summary judgment to the Habershams on the basis that they were shielded by parental immunity.

(b) Appellants assert the Emanuel County trial court erroneously granted summary judgment to the DFCS employees, Scott and Leonard, and DHR (hereinafter referred to collectively as “the state ap-pellees”), on the ground that both the DFCS employees and DHR were entitled, respectively, to official and sovereign immunity. Contrary to the state appellees’ arguments in their briefs, this contention is controlled favorably to appellants by Martin, supra, and Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987). The comprehensive general liability insurance provided under the Liability Trust Fund of the State of Georgia was held in Martin and Price to waive both official and sovereign immunity. We cannot accept the state ap-pellees’ argument that sovereign immunity remains intact as to DHR itself because the fund does not insure the agency, as that argument was addressed and rejected in Price, supra at 537. The trial court erred by granting summary judgment to the state appellees on this basis.

3. Because a grant of summary judgment must be affirmed, however, if it is right for any reason, see generally Cleveland v. Williamson, 194 Ga. App. 476, 477 (2) (391 SE2d 22) (1990), we must address the causation and foreseeability issues raised below as alternate grounds on which the trial court might properly have granted summary judgment.

The record reveals that DFCS obtained custody of appellants’ children in the summer of 1987. After a brief unsuccessful placement with a paternal relative and a determination by caseworkers that placement with the maternal relatives suggested by Newsome would be unsuitable, DFCS placed the children with the Habersham family. At the time of the placement the Habershams had been participating in the foster care program for over nine years and had cared for at least 11 different foster children of all ages. No foster children had ever been injured while in their care. Sandra Habersham is a licensed practical nurse and works the night shift at a nursing home, while Roy Lee Habersham is at work during the day. In accordance with DHR policy, because both parents are employed, special approval was needed and was given for this family to participate in the foster care program. Martha Smallwood, a DHR Social Services Coordinator, testified by deposition that she approved the placement, and that under the plan submitted either Sandra Habersham’s adult daughter, Sabrina Cooper, or Ms. Habersham’s mother was to care for the children when she was unavailable, particularly while she was resting in the morning after she had returned from work and given appellants’ children their breakfast.

Sandra Habersham testified by deposition that on the day before the fire, she had picked up three small penny boxes of matches at a bank and placed them in her purse, intending to give them to patients at the nursing home that night. That afternoon another daughter, who lived in a mobile home on the Habersham lot, used one box of matches to burn trash. At work that evening Ms. Habersham gave the second box of matches to a patient, but the third box was still in her pocketbook when she came home from work, and Ms. Habersham believed they were the only matches in the house. She testified by deposition that she believed she had left her purse in her bedroom.

She deposed that, as was her custom, after she fed Rusty and Nichole, she put them to bed for a nap in their bedroom and then lay down herself in her room across the hall. Cooper was sleeping in the room she shared with her infant son and her new husband. Ms. Ha-bersham was awakened by the smoke alarm and rushed across the hall to find the bedroom occupied by the children engulfed in flames. She and her son-in-law managed to carry four year old Nichole outdoors, but could not reach two year old Rusty, who was still in his bed. They and several neighbors attempted to put out the fire, and by the time the fire department arrived and carried Rusty out, it was too late to save him. Bobby Cato, a fire scene investigator with the State Fire Marshal’s office who conducted an investigation of the scene on the day of the fire, testified by deposition that he found two burned wooden matches on the floor near the bunk bed identified by Ms. Ha-bersham as the one slept in by Nichole. In Cato’s opinion, they were the cause of the fire. Both Scott and Leonard averred in their affidavits that neither appellant had ever reported to them that Nichole liked to play with matches or was fascinated by fire, and there is no suggestion in the record that either child had any such history.

“Children of tender years and youthful persons generally are entitled to care proportioned to their ability to foresee and avoid perils that they may encounter. [Cit.]” Harris v. Hardman, 133 Ga. App. 941, 943 (5) (212 SE2d 883) (1975). “If the evidence was such that the custodian of a minor child should have foreseen that the child might be in danger, and the custodian knew of the danger, the custodian was negligent in not taking measures to protect the child, [and] her negligence was the proximate cause of the injuries. [Cits.]” Id. at 942 (3). Nonetheless, in Salter v. Roan, 161 Ga. App. 227 (291 SE2d 46) (1982) and Garner v. Salter, 168 Ga. App. 520 (309 SE2d 638) (1983), another decision against the same defendant arising out of the same incident, we reversed the denial of a father’s motion for directed verdict and affirmed the subsequent grant of summary judgment to him, respectively, where the evidence indicated that the father emptied the contents of his pockets, including his lighter, on a kitchen counter and went into another room, and without the father’s knowledge or direction his five year old son picked up the lighter and set a fire, causing damage. There was no evidence that the child “had any proclivity or propensity for playing with lighters or matches or for setting fires.” Roan, supra at 228. “These circumstances do not establish parental negligence. ‘Where a parent has no special reason to anticipate that a child, either through known dangerous proclivities or because of its possession of dangerous instrumentalities, may inflict harm on the person or property of others, mere failure to supervise the child’s play activities is not a failure to exercise ordinary care on the part of the parent so as to subject him to liability[.] . . . (Cits.)’ [Cit.] Since [the parent] had no reason to anticipate that his son would take the lighter and start a fire, he had no duty to guard against it. [Cit.]” Id.

Given this court’s holdings in Roan and Garner, supra, we agree with the trial court’s conclusion that in the case at bar it was not “reasonably foreseeable in the light of the evidence that the 4-year-old Nichole, with no history as to a liking to play with matches, would obtain a small box of matches from Sandra Habersham’s handbag and would set the house afire. The fact that Sandra Habersham was not in the room at the time was not the proximate cause of the incident. Even less was it foreseeable to DHR or . . . Leonard or . . . Scott that placement of the children with these foster parents (who in a period of 9-Vi years as foster parents had nothing like this to occur) that such would happen.” Accordingly, summary judgment in favor of the Habershams and Scott and Leonard was proper on this ground. Garner, supra.

Even assuming, without deciding, the existence of an agency relationship between the Habershams and DHR, no independent ground for DHR’s liability is shown, and because summary judgment was proper in favor of the Habershams there is no basis for vicarious liability on the part of DHR, Scott, or Leonard. “If the [Habershams] were not liable for [Rusty’s] death [or Nichole’s injuries], there can be no liability on the part of those who placed [the children] with the [Habershams], or who were responsible for supervising the foster care after placement. [Cits.]” LDS Social Svcs. v. Richins, 191 Ga. App. 695, 698 (2) (382 SE2d 607) (1989). Accordingly, we affirm the trial court’s grant of summary judgment to all appellees.

Judgment affirmed.

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

Carley, Judge,

concurring specially.

I concur in Divisions 1 and 3 and in the affirmance of the grant of summary judgment in favor of appellee-defendants. I cannot, how-eyer, concur in Division 2 because, in my opinion, the reasoning employed by the majority therein is erroneous.

If a familial relationship exists at the time that suit is filed, the doctrine of family tort immunity applies even though no familial relationship had existed at the time that the cause of action arose. See Nelson v. Spalding County, 249 Ga. 334, 337 (3a) (290 SE2d 915) (1982) (spousal tort immunity applies in post-marriage negligence suit for pre-marriage tort). The majority apparently assumes that the converse must necessarily be true and that, if a familial relationship no longer exists at the time that suit is filed, the doctrine of family tort immunity does not apply even though a familial relationship had existed at the time that the cause of action arose. In my opinion, this assumption is erroneous. See Stanfield v. Stanfield, 187 Ga. App. 722 (371 SE2d 265) (1988) (spousal tort immunity applies in post-divorce suit for pre-divorce tort); Wallach v. Wallach, 94 Ga. App. 576 (95 SE2d 750) (1956) (spousal tort immunity applies in post-divorce suit for pre-divorce tort).

It is clear that a parental relationship warranting application of family tort immunity existed at the time that appellant-plaintiff’s alleged cause of action against appellees arose. Brown v. Phillips, 178 Ga. App. 316 (1) (342 SE2d 786) (1986). Accordingly, the issue that I perceive to be presented for resolution in the instant case is whether, as is true in the case of subsequently divorcing spouses, the doctrine of family tort immunity nevertheless applies notwithstanding the subsequent severance of the parental relationship.

The instant case is most nearly analogous to that wherein a subsequently emancipated child brings a negligence suit against his parent for the alleged commission of a pre-emancipation tort. “[A]n action is maintainable, if the child was emancipated at the time of the tort and the action. [Cits.]” (Emphasis supplied.) Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 340 (4) (183 SE 210) (1935). If, however, the child was unemancipated at the time of the tort, his subsequent emancipation will not authorize him to initiate a negligence suit against his parent. “An emancipated child cannot maintain an action against his parent for a tort committed before emancipation if at the time of the wrong the action was not maintainable.” 59 AmJur2d, Parent & Child, § 145.

There is no controlling or persuasive authority to the contrary. Nelson v. Spalding County, supra, merely holds that the existence of a familial relationship at the time that suit is filed warrants application of the doctrine of family tort immunity. That case does not purport to overrule Stanfield v. Stanfield, supra; Wallach v. Wattach, supra, and Fowlkes v. Ray-O-Vac, supra. Nor does Nelson hold that the subsequent severance of a familial relationship renders the doctrine of family tort immunity inapplicable. Arnold v. Arnold, 189 Ga. App. 101 (375 SE2d 225) (1988) was affirmed by the Supreme Court, but only on the limited basis that the doctrine of family tort immunity is otherwise inapplicable in an action between siblings. Arnold v. Arnold, 259 Ga. 150 (377 SE2d 856) (1989). Morris v. Brooks, 186 Ga. App. 177 (366 SE2d 777) (1988) is a two-judge case and has no prece-dential value.

In my opinion, there is no reason to depart from, and every reason to adhere to, the rule that the doctrine of family tort immunity which bars a child from maintaining a negligence action against his parent is not obviated by subsequent emancipation or severance of the parental relationship. The recognized rationale for the doctrine of family tort immunity is that it “ ‘implements a public policy protecting family unity, domestic serenity, and parental discipline.’ [Cit.]” Eschen v. Roney, 127 Ga. App. 719, 724 (194 SE2d 589) (1972). Division 2 of the majority opinion certainly does not implement that public policy. One presumably chooses to become a foster parent so as to provide a home for a child who is in need of family unity, domestic serenity and parental discipline. Few, if any, citizens of this state will elect to become foster parents if the effect of that election is to invite a potential plaintiff to live in one’s home. Even those few who may be willing to take the risk will not be entirely free to act as parents to their foster children, but must comport themselves so as to avoid becoming defendants in a future negligence lawsuit. Moreover, if the bar of family tort immunity is lifted by the subsequent severance of the foster parent relationship, it would also be lifted by the subsequent emancipation of a natural child. The inchoate right of a presently un-emancipated natural child to maintain a post-emancipation negligence suit against his parents can only have a deleterious rather than beneficial effect upon family unity, domestic serenity and parental discipline. An unemancipated foster or natural child is not barred from suing his foster or natural parent for a willful or malicious tort such as would authorize a severance of the parental relationship. Wright v. Wright, 85 Ga. App. 721 (2) (70 SE2d 152) (1952). However, the majority’s conclusion that a subsequently emancipated foster or natural child is not barred from suing his foster or natural parent for alleged pre-emancipation simple negligence is, in my opinion, inconsistent with the underlying rationale for the doctrine of family tort immunity. Accordingly, I would base the affirmance of the trial court’s grant of summary judgment in favor of appellees upon the additional ground that appellant-plaintiff’s suit is barred by the doctrine of family tort immunity.

Decided February 25, 1991

Rehearing denied March 29, 1991

William L. Salter, Jr., Charles W. Cook, for appellants.

Jones, Cork & Miller, Thomas C. Alexander, Thomas W. Joyce, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Jennifer L. Hackemeyer, Assistant Attorney General, for appellees.

I am authorized to state that Judge Pope joins in this special concurrence.

Beasley, Judge,

concurring specially.

I concur as to Division 2, see Hennessy Cadillac v. Pippin, 197 Ga. App. 448 (398 SE2d 725) (1990).

       The issue not having been raised, we intimate nothing concerning a constitutional basis for this statutory venue.

       Although it is unclear from our opinion in Brown, supra, whether the foster parent relationship existed at the time that action was filed, it is clear that this issue was not raised in that case and thus was not addressed.


source: Caselaw Access Project

author: Andrews, Judge. Beasley, Judge,

license: Public Domain

text:
    A90A1843.
    SHAVER v. THE STATE.
    (405 SE2d 281)
   Andrews, Judge.

Shaver was convicted of one count of child molestation and one count of aggravated child molestation, both against his four-year-old son. He appeals the judgment entered on the convictions.

The convictions were based on testimony from the mother of the victim and two investigative officers, who repeated out-of-court statements made to them by the victim describing the acts of molestation. Additionally, one of the officers testified to statements made to her by Shaver confessing that he committed the acts of molestation.

1. In his first three enumerations of error, Shaver contends this evidence was inadmissible, lacked probative value, and was therefore insufficient to sustain the convictions.

The state offered the hearsay testimony regarding the victim’s out-of-court statements pursuant to the exception created in OCGA § 24-3-16 (the Child Hearsay Statute), under which these statements in a child molestation case are admissible “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” A child is considered “available to testify” under OCGA § 24-3-16 only if he is competent to testify within the meaning of OCGA § 24-9-5. In the Interest of K. T. B., 192 Ga. App. 132 (384 SE2d 231) (1989); Ward v. State, 186 Ga. App. 503 (368 SE2d 139) (1988). After the defendant expressed his desire to have the victim called as a witness (Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987)), a hearing was held to determine the child’s competency in which the victim, who was four years old at the time of trial, refused to testify and otherwise failed to qualify as a competent witness. Accordingly, the hearsay testimony was not admissible under OCGA § 24-3-16.

Nor do we find this hearsay testimony admissible under any other applicable exception. By relying on Idaho v. Wright, 497 U. S. _ (110 SC 3139, 111 LE2d 638) (1990), (under totality of circumstances test, court found that out-of-court statements of child unavailable as witness, lacked sufficient guarantees of trustworthiness, so inadmissible for Confrontation Clause purposes), and comparing the Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980) and Glisson v. State, 188 Ga. App. 152, 155 (372 SE2d 462) (1988) cases, the dissent apparently suggests that the out-of-court statements are admissible under the necessity exception to the hearsay rule. OCGA § 24-3-1 (b). The necessity exception most commonly applies when the out-of-court declarant is unavailable to testify because of death or the exercise of a privilege not to testify (Glisson, supra at 154), and the circumstances surrounding the statement provide a guaranty of trustworthiness. Higgs v. State, 256 Ga. 606, 607-609 (351 SE2d 448) (1987).

Here the victim was unavailable because he failed to qualify as a competent witness. Moreover, former OCGA § 24-3-16 (the Child Hearsay Statute as it applied prior to the 1989 amendment to OCGA § 24-9-5) set out the exception to the hearsay rule directly applicable here, and provided no exception for admission of these statements where the child is unavailable because he is not competent to testify. In the Interest of K. T. B., supra. “Only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule may be admitted.’ ” (Citations and punctuation omitted.) Adams v. State, 191 Ga. App. 16, 17 (381 SE2d 69) (1989). Under these circumstances the victim’s out-of-court statements fail to demonstrate sufficient indicia of reliability to qualify for the necessity exception. The incompetence of the witness cannot be avoided by presenting his testimony through the mouths of others.

Even though Shaver failed to object to admission of the hearsay, it can provide no basis for the convictions. “[H]earsay evidence has no probative value even if it is admitted without objection.” Germany v. State, 235 Ga. 836, 840 (221 SE2d 817) (1976); Collins v. State, 146 Ga. App. 857, 859-860 (247 SE2d 602) (1978).

Since the hearsay lacks any probative value, it cannot provide the material evidence necessary to corroborate the defendant’s confession, which, without such corroboration, is unsufficient to support the convictions. Brown v. State, 253 Ga. 363, 364 (320 SE2d 539) (1984); OCGA § 24-3-53. The argument that the hearsay is rendered trustworthy and admissible because corroborated by the defendant’s confessions, while the confessions are simultaneously corroborated by the hearsay is unpersuasive. This would sanction admission of otherwise unreliable evidence by mutual bootstrapping. See Idaho v. Wright, supra, 111 LE2d at 656-657 (rejecting attempt to bolster inherently unreliable hearsay by reference to other corroborating evidence).

Without the hearsay and uncorroborated confession, there was a lack of sufficient evidence to sustain the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In view of the conclusions reached in Division 1, we need not address the defendant’s remaining enumerations of error.

Judgment reversed.

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

Beasley, Judge,

dissenting.

Three witnesses gave unobjected-to testimony concerning out-of-court statements made to them by the victim.

Elizabeth Kelly Shaver is appellant’s ex-wife. The child was born to them on August 14, 1984. At the time of the trial, he was age four.

The mother testified that she divorced appellant on April 8,1988. In July, the boy stated that his father had played with the boy’s penis during a weekend visit. In October of 1988, the child was sitting at the breakfast table playing with his penis. After the witness reprimanded him for what he was doing, he said, “Pee and come comes from my penis and Daddy comes on me all the time.” The witness then asked her son whether his father had done anything else. “He said that he took his penis in his mouth and moved up and down. He said that he peed on him. He said that he looked at magazines or books and played with him — and David played with himself and then came on [the child].”

The witness reported this to a child protective services investigator with the Glynn County Department of Family & Children’s Services. Because of allegations of sexual abuse, the investigator contacted a county police detective.

The investigator interviewed the boy in the presence of the detective, as well as the boy’s mother and sister. The child stated that appellant had sucked his penis, as well as masturbated and ejaculated onto the child’s genital area. He illustrated these acts by reference to anatomical drawings.

The investigator also testified that he interviewed appellant, who “indicated to me that he did suck on his son’s penis. He also admitted to masturbating and ejaculating onto his son. He stated that he would kiss his son all over to show affection for his child because he believed his child was suffering emotionally as a result of the divorce and separation from him.”

The detective arrested appellant on October 29, 1988. After the trial court conducted a Jackson-Denno hearing and determined that appellant’s statements to the investigator were admissible, she testified that appellant told her that “something had happened sexually between he (sic) and his son three times, the last time being at the Sands Motel. He said that he masturbated, that he ejaculated onto [his son’s] genitals. He said that he plays with [his son] and that he kisses him all over and that he has kissed his penis, has put [the boy’s] penis in his mouth. He said that [the boy] has put his mouth on his penis also.” He said that, “he didn’t feel like he should have to go to jail for what’s happened between him and his son. He said that ever since the divorce . . . that he has drawn closer and closer to [his son]. He said that the family problems have caused this and that this was a way for him to get as close to [his son] as he could be.”

The prosecuting attorney stated to the trial court that the testimony of these witnesses had been elicited under the provisions of the Child Hearsay Statute, OCGA § 24-3-16, and was pursuant to the procedure outlined in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987).

The court asked if either party wished to have the child called as a witness. After conferring with appellant, defense counsel stated, “My client feels that’s his only salvation is perhaps the child would recant his testimony.” The child was then called as a witness and questioned outside the presence of the jury. He repeatedly stated that he did not want to testify, and he then refused or was unable to respond to questioning. Appellant did not move to strike the witnesses’ testimony of the child’s out-of-court statements.

1. Appellant enumerates as error the trial court’s allowing the State’s witnesses to testify as to these statements, since OCGA § 24-9-5 (b) does not apply to acts alleged to have occurred prior to the effective date of the 1989 amendment, and under prior law the child was not a competent witness.

The State argues that appellant waived his objection to the witnesses’ testimony by failing to object to the introduction of their testimony when it was introduced and by failing to make a motion to strike their testimony after it was introduced.

I agree that appellant waived his objection to the State’s witnesses’ testimony concerning the child’s out-of-court statements. A failure to object to the admission of evidence at trial constitutes a waiver precluding the party from complaining of the admission of the evidence on appeal. E.g., Herrin v. State, 230 Ga. 476, 477 (1) (197 SE2d 734) (1973). As stated in Yarbrough v. State, 151 Ga. App. 474, 475 (2) (260 SE2d 369) (1979): “It is well settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. [Cits.]”

There is an exception. Where, as here, evidence is admitted without objection, but it later appears that the evidence is inadmissible, in order to contest the admissibility of the evidence on appeal the complaining party must make a motion to strike the evidence or rule it out at trial. Taylor v. State, 174 Ga. App. 900, 901 (3) (331 SE2d 920) (1985). Appellant failed to do this also. Thus there is no ruling of the trial court on which to register a complaint.

2. Appellant enumerates as error the court’s failure to instruct the jury to disregard this testimony.

After the jury charge was given, the trial court asked if there were any objections to it. Appellant stated that there was none. See generally Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980).

Failure to object to a jury charge in a criminal case constitutes a waiver except where, under OCGA § 5-5-24 (c), “ ‘there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.’ Maynard v. State, 171 Ga. App. 605 (320 SE2d 806) (1984).” Barnett v. State, 178 Ga. App. 685, 686 (1) (344 SE2d 665) (1986); see Crawford v. State, 254 Ga. 435, 438-439 (n. 4) (330 SE2d 567) (1985). In order to satisfy this standard, appellant must show that “the allegedly erroneous charge was blatantly prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. (Cits).” Maynard v. State, supra at 606 (2). “[N]othing is presented for consideration on appeal unless ... a gross miscarriage of justice attributable to [the jury charge] is about to result.” Foskey v. State, 116 Ga. App. 334, 336 (157 SE2d 314) (1967).

This case is unlike the following cases in which omissions in the jury charge were found to be substantially in error and harmful as a matter of law: Barnett v. State, supra (the trial court failed to instruct the jury to disregard inadmissible evidence of the defendant’s character or conduct in other transactions); Phelps v. State, 192 Ga. App. 193 (1) (384 SE2d 260) (1989) (the defendant was charged with burglary with intent to commit rape, and the trial court failed to define the crime of rape in its charge to the jury and made gratuitous references to irrelevant matters); Christopher v. State, 190 Ga. App. 393, 397-398 (6) (379 SE2d 205) (1989) (the nature of the charge possibly authorized a conviction for a crime not charged); Laney v. State, 184 Ga. App. 463, 466-467 (2) (361 SE2d 841) (1987) (the defendant’s defense was justifiable homicide based on the use of force necessary to prevent a forcible felony, and the trial court failed to define the forcible felony at issue which was robbery).

The court was not required to charge the jury to disregard evidence which was not objected to nor sought to be excluded by the defendant. Although he had a right to its exclusion because the child was not “available to testify,” which is a condition for the admission of the hearsay under OCGA § 24-3-16, he did not avail himself of the right. The court was not obligated to step in and provide a modicum of the protection that right affords by instructing the jury, after it heard three different witnesses report the child’s statements to them without objection, that this should be entirely disregarded. Unlike the totally irrelevant and inflammatory evidence of character which marred the fairness of the trial in Barnett, supra, the evidence in this case was relevant and, under OCGA §. 24-3-16, probative of the issues.

This case points up a failing of the Sosebee, supra, procedure, which assumes the competency and availability of the child victim. If the hearsay is admitted before the child is called, the prerequisite for allowing the hearsay may be found wanting, prompting a demand for exclusion of the hearsay. This unnecessarily creates the problem of erasing from attentive minds indelible marks which have been made upon them by a facile “don’t consider” directive. All of this can be avoided by establishing admissibility first, out of the jury’s presence and, if the condition is satisfied, then calling the child for examination and cross-examination at whatever time is appropriate. The foundation for the hearsay should first be laid.

3. Appellant argues that the witnesses’ testimony concerning the child’s out-of-court statements constituted inadmissible hearsay without any probative value, and the verdict of guilty is therefore without evidence to support it.

Under the circumstances in which they were made, the out-of-court statements of the child bore sufficient indicia of reliability so as to be admissible in evidence in accordance with Idaho v. Wright, 497 U. S. _ (110 SC 3139, 111 LE2d 638) (1990). There were two such independent statements, the first being initially spontaneous, and the second being consistent with the first. All were made to authority figures, and the one to the mother was made to a person towards whom the child would naturally have confidence and trust as well as a fear of punishment. There was no motive to fabricate. In addition, the graphic nature and details of the statements and the visual accuracy when being interviewed by the caseworker contribute to reliability. So did the fact of defendant’s having had frequent access and opportunity with the victim, before the statements were made. These, and other circumstances surrounding the making of each statement “provide sufficient assurance that the statement is trustworthy.” Idaho v. Wright, supra, 111 LE2d at 655. Therefore, it cannot be said that these statements are “without any probative value.” Compare Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980); Glisson v. State, 188 Ga. App. 152, 155 (2) (372 SE2d 462) (1988). The United States Supreme Court implicitly accepts the probative value of certain hearsay statements by an unavailable witness in allowing such as non-violative of the Confrontation Clause. See Idaho v. Wright, supra, 58 LW at 5038, citing Bourjaily v. United States, 483 U. S. 171, 182 (107 SC 2775, 97 LE2d 144) (1987), and Maryland v. Craig, 497 U. S. _ (110 SC 3157, 111 LE2d 666) (1990).

Decided March 15, 1991

Rehearing denied March 29, 1991

Lane, Tucker & Crowe, Robert L. Crowe, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Stephen D. Kelley, Assistant District Attorneys, for appellee.

Although they are not factors in the test of reliability, appellant’s two independent confessions to the crimes confirmed the truth of what was related in the statements. The confession constituted direct evidence of guilt. Fields v. State, 232 Ga. 723 (2) (208 SE2d 822) (1974). The statements were adequate corroboration of the confessions, as required by OCGA § 24-3-53. The evidence is sufficient to satisfy the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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

       The offenses alleged in this case took place prior to the effective date of the 1989 amendment to OCGA § 24-9-5, which provided that any child is competent to testify in a child molestation case; thus former OCGA § 24-9-5 applies, requiring that the child qualify as a competent witness.


author: Pope, Judge.

text:
    A90A1886, A90A1890.
    A90A1887.
    A90A1888, A90A1889.
    ARFORD v. BLALOCK; and vice versa. BLALOCK v. WILENSKY. GULF STATES MORTGAGE COMPANY, INC. v. BLALOCK; and vice versa.
    (405 SE2d 698)
   Pope, Judge.

In 1982 Eulas Blalock and Anthony Arford commenced a mortgage banking business operating under the name of Gulf States Mortgage Company. Conflicting evidence was presented concerning whether Blalock and Arford established a partnership which was engaged as an independent contractor by the corporation Gulf States Mortgage Company, Inc., pursuant to an oral franchise agreement, or whether Blalock and Arford were hired by oral agreement as employees to serve as co-managers of a branch office of the corporation. In either circumstance, the record reflects that Blalock and Arford jointly owned the building and office furniture which were leased from them by the corporation. The verdict shows the jury found a partnership existed between Blalock and Arford and that the partnership was an independent contractor of the corporation.

Blalock and Arford were financially successful and the enterprise continued to grow until early 1987, when the two had some disagreements and discussed severing their business relationship. On February 11, 1987, Robert Wilensky, president of the corporation, informed Blalock his relationship with Gulf States was terminated blit the corporation continued conducting business with Arford. The locks on the building were changed so that Blalock no longer had unsupervised access to it, but from the time his business relationship with the corporation was terminated to the date of the trial of this case, Blalock regularly received his portion of the lease payments for the building and furniture, as lessor.

Blalock filed an action against Arford, Wilensky and Gulf States Mortgage Company, Inc. The case was tried and judgment was entered on the jury verdict against Arford in the amount of $800,000 for breach of the partnership contract and $80,000 for attorney fees and against Gulf States in the amount of $200,000 for breach of its contract with the partnership and $80,000 for attorney fees. The jury also returned a verdict against Wilensky, individually, in the amount of $200,000 for tortious interference with business relations and one million dollars punitive damages, but the trial court granted Wilensky’s motion for judgment notwithstanding the verdict. Several appeals have been filed from the judgments in this case, and we have consolidated them for review.

Case No. A90A1888

This appeal was brought by Gulf States, which asserts the trial court erred in denying its motion for judgment notwithstanding the verdict on Blalock’s claim that he was entitled to damages for Gulf States’ alleged breach of contract with the Blalock-Arford partnership.

1. Gulf States argues Blalock is precluded from recovering for breach of contract with the partnership because an action on behalf of a partnership can only be brought by the partnership as a whole and not by one partner, individually. “A real-party-in-interest objection is similar to the defense of failure to join an indispensable party under OCGA § 9-11-19 and may be made at any time up to and including a trial on the merits.” (Citation and punctuation omitted.) Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233, 237 (2) (355 SE2d 747) (1987). The issue is waived where, as here, it is raised for the first time in a post-trial motion. Id.

2. However, we agree Blalock, suing for the partnership, had no cause of action against Gulf States for breach of contract. “An indefinite hiring may be terminated at will by either party.” OCGA § 34-7-1. Even a “franchised contractual relationship,” when it consists of an oral agreement for an indefinite period, is terminable at will. Atlanta Dairies Co-op. v. Grindle, 182 Ga. App. 409 (1) (356 SE2d 42) (1987). See also Richard A. Naso & Assoc. v. Diffusion, 194 Ga. App. 201 (390 SE2d 106) (1990). Thus, the trial court erred in denying the motion for judgment notwithstanding the verdict.

3. Although Blalock had no claim for wrongful termination of either himself, individually, or the partnership, he did have a claim for unpaid compensation due him, as one of the partners, for services actually performed up to the time of his discharge. See Atlanta Dairies Co-op. v. Grindle, supra at (2). However, the only competent evidence of damages presented by Blalock was the testimony of an expert witness concerning his evaluation of the partnership as an on-going concern, including his projection of future earnings of the partnership. Because a hiring for an indefinite period is terminable at will it creates no executory obligations. Murphine v. Hosp. Auth. of Floyd County, 151 Ga. App. 722 (261 SE2d 457) (1979). Thus, Blalock is not entitled to recover an award for future earnings.

Blalock’s compensation was based on origination fees earned by the partnership for mortgage applications solicited by the partnership and accepted and closed by Gulf States. The record reflects that mortgage applications were “in the pipeline,” that is, in the process of being approved and closed, at the time Blalock was terminated. Blalock could recover the income due him from the origination fees for these mortgages. However, the only evidence of the value of those mortgages was the estimate Blalock testified he made at the time of his termination based on the record of previous months. No evidence was presented at trial to show how many mortgage applications were actually “in the pipeline” at the time of termination nor the value of those mortgages which eventually closed. Where no competent evidence is presented on the only true measure of damages to the plaintiff, then the verdict is unsupported by the evidence and the judgment must be reversed. Department of Transp. v. Kirk, 138 Ga. App. 180 (2 & 3) (225 SE2d 781) (1976). This is not a case in which the verdict and judgment can be upheld by the general rule that, on appeal, every inference and presumption is in favor of sustaining the verdict (see, e.g., Perfect Image, Inc. v. M & M Elec. Constructors, 191 Ga. App. 605 (3) (382 SE2d 405) (1989)), because here no evidence was presented on the only proper measure of damages available for plaintiff’s cause of action.

4. Gulf States was also entitled to judgment in its favor on the award of attorney fees. “Expenses of litigation are not recoverable pursuant to OCGA § 13-6-11 unless other elements of damages are recoverable. [Cits.] Since [Gulf States is entitled to judgment] on . . . the . . . substantive [count] of [plaintiff’s] complaint, it necessarily follows [it] is also entitled to . . . judgment on the claim for attorney fees.” Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988). In light of our holding that Gulf States was entitled to judgment notwithstanding the verdict, we need not address its remaining enumeration of error in which it argues it is entitled to new trial because of an asserted error in the jury instructions.

Case No. A90A1889

5. We have reviewed the enumerations of error raised by Blalock on cross-appeal of Gulf States’ appeal and find no ground for reversible error which would require a new trial instead of judgment notwithstanding the verdict, as held above.

Case No. A90A1886

This appeal is brought by Arford who asserts the trial court erred in denying his motion for judgment notwithstanding the verdict on Blalock’s claim that he is entitled to damages for the alleged breach of the partnership agreement between the two men.

6. The evidence presented in support of Blalock’s contention that Blalock and Arford conducted the business in question as a partnership shows the agreement was oral and for an indefinite duration and was, therefore, terminable at will. A partnership may be dissolved by the express will or withdrawal of any partner. OCGA § 14-8-31 (a) (2). Arford argues he had a right to terminate the partnership and cannot be liable for breach of contract. Blalock argues Arford’s termination of the partnership was a breach of contract but, curiously, cites as authority the Uniform Commercial Code, which we hold has no application to this case, and cites no authority from the Georgia Uniform Partnership Act which governs the rights of partners in the dissolution of a partnership.

Although Blalock does not refer to it as such, his cause of action is essentially one for wrongful dissolution of the otherwise terminable-at-will partnership. OCGA § 14-8-38 (b) refers to wrongful dissolution as a dissolution made “either in contravention of the partnership agreement or as a result of other wrongful conduct of a partner . . . .” Any partnership agreement includes, as a matter of law, an agreement for each partner to act in “the utmost good faith” toward the other partner. See OCGA § 23-2-58; Allen v. Sanders, 176 Ga. App. 647 (1) (337 SE2d 428) (1985). The power of a partner to dissolve the partnership at will, “like any other power held by a fiduciary, must be exercised in good faith. ... A partner may not . . . ‘freeze out’ a co-partner and appropriate the business to his own use. A partner may not dissolve a partnership to gain the benefits of the business for himself, unless he fully compensates his co-partner for his share of the prospective business opportunity. . . . [Even though a partner has a right to dissolve the partnership, i]f, however, it is proved that [the partner] acted in bad faith and violated his fiduciary duties by attempting to appropriate to his own use the new prosperity of the partnership without adequate compensation to his co-partner, the dissolution would be wrongful and the [partner] would be liable as provided by [the section of the Uniform Partnership Act defining the rights of partners upon wrongful dissolution] for violation of the implied agreement not to exclude [the other partner] wrongfully from the partnership business opportunity.” Page v. Page, 359 P2d 41, 44-45 (Cal. 1961). Although the evidence was conflicting, Blalock presented evidence from which the jury could find Arford wrongfully dissolved the partnership to “freeze out” Blalock from further business opportunities with Gulf States. Therefore, the lower court did not err in denying Arford’s motion for judgment notwithstanding the verdict.

7. Arford also argues the award of damages was improper because the only remedy available to Blalock for the dissolution of the partnership is an accounting and payment of net assets owed to him as a one-half partner in the now-dissolved partnership. A partner who has been “wrongfully excluded from the partnership business” has a right to a formal accounting. OCGA § 14-8-22 (1). See also OCGA § 14-8-43. The original complaint included a count demanding an accounting but, for reasons known only to Blalock’s attorneys, Blalock announced after the close of plaintiff’s evidence that the claim for an accounting was no longer a part of the case. In the case of wrongful dissolution of a partnership, however, a partner who did not wrongfully cause the dissolution is entitled not only to payment for his net interest in the partnership (which would be calculated pursuant to an accounting) but also damages for wrongful dissolution. OCGA § 14-8-38 (b). We find instructive the holding by the California Supreme Court in Page v. Page, supra, that damages for wrongfully excluding a partner from a partnership business opportunity should include compensation to the ousted partner for his share of the prospective business opportunity.

In this case, Blalock presented the testimony of an expert witness concerning his estimate of Blalock’s lost share of partnership profits. We reject Arford’s argument that the testimony of Blalock’s expert witness was not competent evidence of the proper measure of damages in this case. “A partner’s interest in the partnership is his share of the profits and surplus. ...” OCGA § 14-8-26. Profits, of course, means net, and not gross, income. We find no error in admitting the testimony of Blalock’s expert witness which was based on Blalock’s past income from the business since evidence was presented that expenses and liabilities were subtracted from gross income before Bla-lock was paid.

8. We also reject Arford’s argument that no causal connection was shown between the dissolution of the partnership and Blalock’s loss of future earnings because, Arford argues, Gulf States independently terminated its relationship with the partnership and chose, instead, to do business with Arford, individually. The jury’s verdict against Wilensky, the president of Gulf States, on Blalock’s claim for tortious interference with business relations (addressed in Case No. A90A1887, below), shows the jury concluded the termination of the Blalock-Arford partnership and Wilensky’s termination of Gulf States’ relationship with Blalock were interrelated.

9. As discussed in Division 6, above, evidence was presented from which the jury could find Arford’s dissolution of the partnership was wrongful and in bad faith. The issue of attorney fees under OCGA § 13-6-11 is a question for the jury and an award will be upheld if any evidence is presented to support the award. Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990). Thus, we reject Arford’s argument that Blalock was not entitled to an award of attorney fees.

10. Finally, Arford argues the trial court erred in denying his motion for judgment notwithstanding the verdict because the amount of attorney fees awarded is legally insupportable. The expert witness who testified concerning the reasonableness of Blalock’s claim for attorney fees testified only in regard to the reasonableness of the total number of hours spent by Blalock’s attorneys in representing him in the case. He admitted he did not calculate how many hours of the total time spent on the case were spent on certain claims alleged in the original complaint which were disposed of before trial by summary judgment in favor of Gulf States.

Attorney fees could be recovered against Arford because the verdict form shows the jury found Arford acted in bad faith. A plaintiff, however, is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney’s efforts to prosecute the cause of action, against a particular defendant, on which the prayer for attorney fees is based. See Fuller v. Moister, 248 Ga. 287 (282 SE2d 889) (1981); Altamaha &c. Center v. Godwin, 137 Ga. App. 394, 399 (3) (224 SE2d 76) (1976). No evidence was presented from which the jury could determine what portion of the total amount of attorney time and litigation expenses incurred in this multi-count, multiple-defendant litigation was attributable to the particular claim against Arford. Consequently, Arford was entitled to judgment notwithstanding the verdict as to that portion of the verdict awarding attorney fees. See Mutual Fed. Savings &c. Assn. v. Johnson, 124 Ga. App. 68 (2) (183 SE2d 50) (1971); State Mut. Ins. Co. v. McJenkin &c. Co., 86 Ga. App. 442, 447 (3) (71 SE2d 670) (1952).

11. We find no error in the trial court’s refusal to instruct the jury on defendants’ requested charges on estoppel.

Case No. A90A1890

12. Because we herein uphold the trial court’s denial of Arford’s motion for judgment notwithstanding the verdict and motion for new trial, we need not address the issues raised in Blalock’s cross-appeal to Arford’s appeal.

Case No. A90A1887

13.This appeal is brought by Blalock who argues the trial court erred in granting Wilensky’s motion for judgment notwithstanding the verdict of $200,000 actual damages and one million dollars punitive damages awarded by the jury. We agree with Blalock and reverse the trial court, holding that the jury verdict must be reinstated.

Blalock alleged in his complaint that Arford and Wilensky conspired to interfere wrongfully with his business relations. That the jury returned a verdict in favor of defendant Arford on this count, but against defendant Wilensky, does not invalidate the verdict against Wilensky. One who maliciously procures another to break a contract with the plaintiff is a joint tortfeasor and may be sued either alone or jointly with the actor. Luke v. DuPree, 158 Ga. 590 (1) (124 SE 13) (1924). The jury in this case imposed damages against Arford for wrongful dissolution of the partnership. A verdict against Arford on the tortious interference count of the complaint would arguably have granted an impermissible double recovery for a single injury.

To support a verdict for tortious interference with business relations the evidence must show the defendant “(1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.” (Citation and punctuation omitted.) Integrated Micro Systems v. NEC Home Electronics (USA), 174 Ga. App. 197, 200 (3) (329 SE2d 554) (1985). The record shows sufficient evidence was presented to permit the jury to find each of the elements listed above.

Improper act. Construing, as we must, the evidence in the light most favorable to the verdict, it is obvious the jury believed Wilensky induced Arford wrongfully to dissolve his partnership with Blalock. Contrary to Wilensky’s argument, this act was not privileged. “ ‘The fact that [a business relationship] is at the will of the [parties] does not make it one at the will of others, and a malicious and wrongful interference with such [relationship] by another is actionable although the [relationship] be at will.’ ” Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245, 248 (166 SE2d 744) (1969). Even though Gulf States had a right or privilege to terminate at will its relationship with the partnership and, consequently, its relationship with Blalock as a partner in that partnership, the allegation of wrongdoing related to the relationship between Arford and Blalock, not Blalock’s relationship with Gulf States.

Malicious intent. “The term malicious, used in this connection is to be given a liberal meaning. The act is malicious when the thing done is with the knowledge of plaintiff’s rights, and with the intent to interfere therewith.” (Citation and punctuation omitted.) Id. at 250. “[T]he term ‘malicious’ or ‘maliciously’ means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential.” Luke v. DuPree, supra at 596-597. Persuading a person to break a contract for the indirect purpose of injuring the plaintiff or benefiting the defendant at the expense of the plaintiff is a malicious and actionable act if injury arises from it. Architectural Mfg. Co. v. Airotec, Inc., supra at 249. Although the existence of a partnership between Arford and Blalock was disputed, evidence was presented from which the jury could find that Wilensky knew of the partnership and thus knew that the dissolution of the partnership, when Gulf States intended to continue doing business with Arford, would “freeze out” Blalock from the benefits of his business relationship with Arford. The elements of inducement of a third party and financial injury are addressed above.

We reject Wilensky’s contention that he could not be held individually liable for the act of tortious interference. “ ‘[A]n officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein.’ [Cit.]” Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 411 (203 SE2d 597) (1973). Here, sufficient evidence was presented that Wilensky took part in the tort. See American Game &c., Inc. v. Knighton, 178 Ga. App. 745 (1) (344 SE2d 717) (1986). Wilensky’s reliance on Energy Contractors v. Ga. Metal Systems &c., 186 Ga. App. 475 (4) (367 SE2d 324) (1988), is misplaced; the reason the individual corporate officer could not be held liable in that case is because the evidence showed he was acting only as an agent of the corporation and he could not be liable under a theory of derivative liability for the corporation because the corporation was a party to the contract in question and, by definition, could not be liable for interfering with relations with a third party. Here, the business relationship at issue is the partnership between Blalock and Arford and both Wilensky and Gulf States were third parties to that relationship.

Decided March 14, 1991

Rehearings denied March 29, 1991

Chilivis & Grindler, Gary G. Grindler, Daniel P. Griffin, for Arford.

Decker & Hallman, Richard P. Decker, Peter V. Hasbrouck, for Blalock.

Gingold, Kaufman & Chaiken, Robert J. Kaufman, Fredric Chaiken, for Wilensky.

Kilpatrick & Cody, Laurel J. Lucey, A. Stephens Clay, Caroline W. Spangenberg, for Gulf States Mortgage.

The record shows Arford met with Wilensky to discuss the possible dissolution of his business relationship with Blalock and Wilensky told Arford he no longer wanted to do business with Blalock, but that nothing would change in Gulf States’ relationship with Arford. Only after this discussion did Arford discuss with Blalock any specific proposals for dissolving the partnership or did Wilensky inform Blalock he was terminated from his relationship with Gulf States. Since, as discussed above, there was evidence from which the jury could find Wilensky knew Arford and Blalock were partners in their enterprise with Gulf States and that terminating Blalock while retaining Arford would effectively “freeze out” Blalock from an enterprise that would essentially be the continuation of the original partnership, we conclude the record contains sufficient circumstantial evidence to permit the jury to find Wilensky liable for tortious interference with Bla-lock’s relationship with Arford. Cf. Richard A. Naso & Assoc. v. Diffusion, supra.

Judgments affirmed in Case Nos. A90A1889 and A90A1890. Judgment affirmed in part and reversed in part in Case No. A90A1886. Judgments reversed in Case Nos. A90A1887 and A90A1888.

Beasley and Andrews, JJ., concur.


text:
    A90A1913.
    HUNTER v. HARDNETT.
    (405 SE2d 286)
   Andrews, Judge.

Hardnett sued Hunter for damages he sustained in an automobile collision, alleging that Hunter negligently failed to yield the right-of-way at a stop sign. Hunter appeals from judgment entered on the jury verdict in favor of Hardnett.

1. Hunter contends the trial court erred by admitting the plaintiff’s evidence of a traffic citation issued against him in conjunction with the accident. The citation charged Hunter with failing to yield the right-of-way at the stop sign. Prior to trial, Hunter moved in limine to exclude this evidence on grounds that it was ambiguous and subject to being construed in a way that would render it prejudicial and inadmissible.

There are blocks on the reverse side of the citation for indicating the disposition of the charge against the accused. A block noting entry of a guilty plea by Hunter was checked, and a block indicating Hunter was found guilty by the municipal court was also checked. In a civil action for damages arising from a vehicular collision, an adjudication of guilt by a traffic court that the defendant was in violation of a law alleged to be the proximate cause of the plaintiff’s injuries is inadmissible as irrelevant and immaterial, but a plea of guilty is admissible as an admission against interest. Smith v. Goodwin, 103 Ga. App. 248, 249 (119 SE2d 35) (1961); Akin v. Randolph Motors, 95 Ga. App. 841, 848 (99 SE2d 358) (1957).

In testimony proffered at the pre-trial motion in limine and at trial, Hunter denied that he pled guilty to the citation. A certified copy of the citation showing both the guilty plea and the finding of guilt was introduced pursuant to OCGA § 24-7-20, as primary evidence under OCGA § 24-5-20. Rutledge v. Colonial Fin. Svc., 170 Ga. App. 317, 318-319 (316 SE2d 867) (1984); see also Ferrell v. State, 149 Ga. App. 405, 408 (254 SE2d 404) (1979) (traffic citation best evidence of its contents).

Though ambiguous and subject to conflicting interpretations, the citation was relevant if interpreted by the jury as a plea of guilty by Hunter. Evidentiary questions as to relevancy are generally for the court, but when the relevancy or competency of evidence is doubtful, the jury should be allowed to consider the facts, draw its own inferences, and assign such weight to the evidence as it may determine under appropriate instructions. Department of Transp. v. Delta Machine Prod. Co., 157 Ga. App. 423, 425-426 (278 SE2d 73) (1981). In Locklear v. Morgan, 129 Ga. App. 763, 767-768 (201 SE2d 163) (1973), an exhibit consisting of the related traffic citation, criminal warrant, and plea of guilty was admitted into evidence as an admission in a subsequent civil damages action arising out of the traffic offense. Although the sheriff disclaimed his signature on the warrant, we held that “[a]ny irregularity relative to the exhibit would go to [its weight] and not its admissibility,” and “[t]he fact that the [sheriff] disclaimed his signature on the warrant, would not make the [plea] inadmissible in evidence, but would go to impeach the validity of the disposition of the criminal charge.” Id. at 767-768. Even though a defendant may deny he made the admission, “whether he did is a question of fact for the jury, [and] it is not for the trial court to determine the credibility of the evidence or its weight, but only its competence.” (Citations omitted.) Cannon v. Rithmire, 156 Ga. App. 360, 362 (274 SE2d 746) (1980).

Relevant evidence may be excluded, in the discretion of the judge, where the court finds that “ ‘its probative value is substantially outweighed by the risk that its admission will . . . create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. . . .’ [Cit.]” 166 Ga. App. 300, 301 (304 SE2d 74) (1983). The decision of the trial court will not be disturbed except in cases of a clear abuse of discretion. Id. at 301. In the instant case there was no substantial danger of undue prejudice or confusion, and the trial court properly admitted the exhibit for the jury’s determination of whether Hunter had in fact pled guilty, and thus made an admission against interest. The trial court correctly denied Hunter’s motion in limine.

After the trial court charged the jury that there was evidence of a plea of guilty by Hunter, which could be considered as an admission, it would have been appropriate to charge that, if the jury concluded no guilty plea was entered, they should disregard the citation, but in the absence of any such request or objection to its omission, there is no basis for reversal on this ground. Morris v. Delong, 183 Ga. App. 124, 125 (358 SE2d 285) (1987); OCGA § 5-5-24 (a). Although the charge respecting the citation was not precisely adjusted to the evidence, the trial court gave the charge requested by Hunter, which informed the jury that evidence of the plea was not conclusive of the issues before it, and the court otherwise fully instructed the jury on the general principles of negligence. Morris v. DeLong, supra; OCGA § 5-5-24 (a). Under these circumstances we find the exception of OCGA § 5-5-24 (c) inapplicable since even if Hunter did not acquiesce in the failure to charge, (see Bell v. Samaritano, 196 Ga. App. 612-613 (396 SE2d 520) (1990)), the charge as given did not amount to substantial error harmful as a matter of law. Milam v. Attaway, 195 Ga. App. 496, 499 (393 SE2d 753) (1990).

2. In his second enumeration, Hunter claims the trial court erred by charging the jury on loss of earning capacity when there was no evidence to support the charge. Loss of earning capacity, when sought as a separate element of damages, refers to the pecuniary loss resulting from a diminished capacity to earn money in the future because of a permanent impairment, and requires evidence from which the jury can reasonably determine the amount of the resulting loss. Leggett v. Benton Bros. &c., 138 Ga. App. 761, 764-765 (227 SE2d 397) (1976); Augusta v. Drawdy, 75 Ga. App. 543, 547 (43 SE2d 569) (1947). The plaintiff introduced evidence that he suffered from a permanent disability as a result of the accident, but there was no evidence from which the jury could have determined the monetary amount of any resulting loss in earning capacity.

Where there is no evidence from which a jury can reasonably calculate the monetary loss resulting from the permanent impairment, loss of earning capacity may be sought, not as a separate element of damages, but as an element of pain and suffering. Jones v. Hutchins, 101 Ga. App. 141, 147 (113 SE2d 475) (1960); Hunt v. Williams, 104 Ga. App. 442, 451 (122 SE2d 149) (1961); Michaels v. Kroger Co., 172 Ga. App. 280, 283 (322 SE2d 903) (1984). In the instant case, the court charged the jury that “in considering damages for pain and suffering, you may consider the following: loss of impairment or of Plaintiff’s powers or faculties, loss of earning capacity, any decrease in Plaintiff’s ability to work, and any damage to the Plaintiff’s body.” This was the court’s only charge on loss of earning capacity. Since loss of earning capacity was classified as an element of pain and suffering there was no error.

3. In enumeration of error number three, Hunter claims the jury instructions given on impairment of the plaintiff’s ability to work were confusing and prejudicial. The record reveals Hunter failed to object to any charge on this ground, which generally results in a waiver of any defects (OCGA § 5-5-24 (a)), except where the charge is substantially erroneous and harmful as a matter of law. OCGA § 5-5-24 (c); Morris, supra at 125. We find no such substantial error in these charges.

4. Hardnett’s motion for damages for frivolous appeal under OCGA § 5-6-6 is denied.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

I respectfully dissent, as I do not concur in Division 1.

When counsel argued appellant’s motion in limine at the commencement of the trial, it had not been established in either the pleadings or in discovery whether or not Hunter had in fact pled guilty to the charge. His counsel made a proffer of Hunter’s anticipated testimony, stating that it would show he had in fact not pled guilty. He argued that the traffic citation was inadmissible because it would show he had not pled guilty or at best was ambiguous and did not show what it was offered to show, that he had pled guilty. He maintained that a conviction in the absence of a plea of guilty is inadmissible, which is eminently correct. Pierce v. Pierce, 241 Ga. 96, 100 (3) (243 SE2d 46) (1978).

Hardnett countered that the certified copy of the conviction was the best evidence of it, so that explanatory hearsay testimony would be inadmissible. Although it was authenicated evidence of conviction, it was offered to show what that conviction was based on; as to that fact it was neutral, no more establishing that the basis for the conviction was á guilty plea than that it was a finding of guilt. The trial court reasoned that the ambiguity in the document was no reason to hold it inadmissible. It ruled that the traffic citation was admissible if it was explained through the testimony of witnesses.

At trial, Hunter testified without contradiction that he had not pled guilty to the traffic charge in municipal court. No evidence tending to show that he had pled guilty, so that the document could be construed as a record of such, was ever offered. Thus the ambiguous document was never made competent evidence. There was no foundation laid for its admissibility. It was only admissible if it was evidence of a guilty plea, and the cupboard was bare of any ingredients for such a finding. Although it was an authentic document and thus the best evidence of the municipal court record as such, it was not competent evidence of the fact it was offered to show, i.e., that Hunter had pled guilty. It was simply inconclusive.

The trial court charged the jury that there was evidence of a plea of guilty by him, which is admissible as an admission. The trial court did not charge the jury that an adjudication of guilt in the absence of a guilty plea is inadmissible. The real problem is that the court gave to the jury the judicial task of making an evidentiary ruling. Before the document could be admitted into evidence as competent, the court would have had to find that it represented a guilty plea. Because of the ambiguity, it could not do so. That did not pave the way for the jury to do so either; it could not logically find that the document was competent evidence of a guilty plea. There was no evidence with which to resolve the ambiguity in favor of such a finding. Yet the court permitted it to do so.

The trial court’s denial of appellant’s motion in limine and allowing the non-probative evidence constituted error which was harmful by its nature and requires reversal. It presented appellant with a Hobson’s choice. If appellant had indeed pled guilty to the traffic charge in municipal court, it would have constituted an admission of liability. But he maintained that he did not plead guilty, and he did not wish to let the jury make the inculpatory finding without at least contradicting the inadmissible evidence. Appellant was thus compelled to testify that he had not pled guilty, thereby resolving the ambiguity and establishing the probative value of the document he rightfully sought to preclude. However, it was thus made probative of a fact which was inadmissible.

Decided March 15, 1991

Rehearing denied March 29, 1991

W. Allen Evans, for appellant.

Law Offices of Sam G. Nicholson, Kenneth M. Nimmons, Oscar H. Allen, for appellee.

The question, to be answered affirmatively apart from the question of relevancy, was whether the document was admissible. The document was never shown by its profferer to be admissible, i.e., that it memorialized a guilty plea. Allowing the jury to determine its admissibility, a legal question, meant that if the jury decided it was inadmissible, it then had to consciously and subconsciously take the difficult step of ignoring the conviction. This step likely faced the jury, because there was no evidence to resolve the ambiguity in favor of its recordation of a guilty plea, while on the other hand there was affirmative evidence that it was not such.

Relegating the threshold judicial task to the jury infected its deliberations with inadmissible evidence which was highly prejudicial to defendant.


author: Carley, Judge. Banke, Presiding Judge,

text:
    A90A2056.
    FAISON v. THE STATE.
    (405 SE2d 277)
   Carley, Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the admission into evidence, over objection, of a certified copy of his prior indictment for and his guilty plea to a charge of possession of cocaine. The State urged, and the trial court agreed, that the indictment and guilty plea was admissible evidence of appellant’s perpetration of a “similar crime.”

In Whitley v. State, 193 Ga. App. 192 (1) (387 SE2d 348) (1989), we held that evidence of the defendant’s possession of drugs on another occasion was admissible in his trial for the sale of drugs. However, Whitley does not stand for the proposition that evidence of a defendant’s possession of drugs on another occasion is indiscriminately admissible in his trial for the sale of drugs. The “other transaction” in Whitley was the defendant’s subsequent possession of marijuana which “was seized from motor vehicles and the curtilage of the house where the sale had previously taken place.” (Emphasis supplied.) Whitley v. State, supra at 192 (1). This evidence that, on another occasion, the defendant had in fact possessed marijuana on the same premises was held to be admissible to show that, contrary to his defensive contentions, he had not been misidentified as the one who possessed the marijuana on that occasion when it had been purchased on those very premises. In so holding, Whitley is but one in a line of cases which has long recognized that evidence of a defendant’s “other” possession of drugs may be admissible to show identity in his trial for the sale of drugs if a sufficient showing of a factual similarity or connection between the possession and the sale has otherwise been made. See Golden v. State, 184 Ga. App. 434 (361 SE2d 703) (1987) (holding that defendant’s possession of drugs at the same location admissible in his trial for sale of drugs); Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987) (which was specifically cited in Whitley and holds that defendant’s conviction for possession of marijuana at same location admissible in his trial for sale of marijuana); Laws v. State, 153 Ga. App. 166, 167 (2) (264 SE2d 700) (1980) (holding that defendant’s possession of marijuana at same location admissible in his trial for sale of marijuana).

There is no basis for concluding that, in following established precedent, Whitley was incorrect in its holding that evidence of the defendant’s “other” possession of drugs under factually similar circumstances was admissible to prove his identity as the seller of drugs on the occasion at issue. That the intent elements of the crimes may differ is totally immaterial to the determination of the admissibility of the evidence. There is no requirement that, to come within the “other transaction” exception, the “other transaction” must be identical in every aspect. “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . [Cit.]” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” (Emphasis supplied.) State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980). See also Burden v. State, 250 Ga. 313, 314 (2) (297 SE2d 242) (1982) (holding evidence of aggravated assault to be admissible in a murder case); Jones v. State, 158 Ga. App. 585 (2) (281 SE2d 329) (1981) (holding evidence of larceny or burglary to be admissible in a robbery by force case); Jackson v. State, 157 Ga. App. 604, 605 (4) (278 SE2d 5) (1981) (holding evidence of assault to be admissible in a rape case). It is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity, and the differing intent with which he may have possessed the drugs on those separate occasions is not a bar to its admissibility for that limited purpose.

Thus, it follows that Whitley should be followed in the instant case unless it is distinguishable. In this regard, the record shows that here, as in Whitley, the defense was mistaken identity. However, the record also shows that here, unlike in Whitley, there was no showing of any factual similarity whatsoever between appellant’s “other” act of possessing drugs and the alleged act of selling drugs which underlay his instant prosecution. Accordingly, as was implicitly recognized in Cross v. State, 196 Ga. App. 714 (397 SE2d 125) (1990), Whitley is distinguishable and inapplicable authority for the proposition that the evidence of appellant’s “other” possession of drugs was relevant and admissible in the instant case to prove his identity as the seller of the drugs. Here, as in Cross v. State, supra, the State made no showing of the requisite similarity and the trial court’s evidentiary ruling was, therefore, erroneous.

However, an erroneous admission of “other transaction” evidence may be harmless. The record in the instant case shows that appellant was positively identified by the officer who bought the drugs and by the officers who made the arrest only a few minutes thereafter. There was also testimony that, at the time of appellant’s arrest, he had in his possession the marked twenty-dollar bill used to purchase the drugs and the fact that the twenty-dollar bill was not itself tendered into evidence does not render this testimony any less inculpatory. McCoy v. State, 185 Ga. App. 221, 222 (3) (363 SE2d 628) (1987); Adams v. State, 142 Ga. App. 252, 253 (4) (235 SE2d 667) (1977). In opposition, appellant presented no affirmative evidence to support his misidentification defense. Instead, he purported to-develop that defense only through cross-examination of the officers. However, each of the officers reiterated his inculpatory testimony on re-direct examination. This record demonstrates overwhelming evidence of appellant’s guilt. Accordingly, the trial court’s erroneous evidentiary ruling does not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdict. See Hatcher v. State, 251 Ga. 388, 389 (1) (306 SE2d 250) (1983).

2. Such of appellant’s remaining enumerations of error as are not otherwise implicitly resolved by our holding in Division 1 have been considered and found to be without merit.

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

1. While the act of selling a drug necessarily implies control or dominion over it, the converse is not true — i.e., possession of a drug does not necessarily imply an intention to sell or distribute it. Rather, such possession may be fully consistent with an intention merely to consume the drug. As indicated by the majority, there was no showing of any factual similarity whatever between the conduct giving rise to the appellant’s prior cocaine possession conviction and the conduct for which he was on trial. Consequently, I fully agree that the trial court erred in admitting the prior conviction. However, I cannot agree that the error was harmless.

The state’s case was based entirely on the testimony of an undercover Chatham County police detective to the effect that the appellant had sold him cocaine. This detective testified that as he was driving through an area of Savannah seeking to purchase drugs, a man whom he identified as Earl Cephus Pinckney motioned for him to pull over and asked him what he was looking for. The detective testified that he replied, “A twenty,” and that Pinckney then walked across the street and spoke with another person, whom the detective identified at trial as the appellant. According to the detective, Pinckney ultimately took something from this person’s hand, returned to his (the detective’s) vehicle, reached in, and handed him a piece of crack cocaine. The detective testified that he paid Pinckney twenty dollars for this cocaine, using a bill whose serial numbers he had previously recorded, and that before driving away he observed Pinckney hand this money to the appellant. Shortly thereafter, other law enforcement officers converged on the area and arrested both the appellant and Pinckney, based on descriptions radioed to them by the detective.

At the time of his arrest, the appellant was not in possession of any cocaine but was in possession of $181 in cash, including, according to the arresting officer, the 20 dollar bill which the undercover detective had given to Pinckney to pay for the cocaine. However, this twenty dollar bill was not introduced into evidence at trial, even though the other money seized from the appellant was introduced. Asked how he knew the 20 dollar bill in question was the same one the undercover detective had given to Pinckney, the arresting officer replied, “[W]e record the serial numbers off of that prior to th[e] purchase. ...” However, it is apparent from the undercover detective’s testimony that it was he, rather than the arresting officer, who had actually recorded the serial numbers from the bill in question; and there was no testimony that anyone had actually compared the numbers copied from the bill given to Pinckney with the numbers on the bill seized from the appellant.

As noted by the majority, the appellant’s only “defense” to the charge was the possibility of mistaken identification. Inasmuch as this defense could have been conclusively negated by proof that the 20 dollar bill given to Pinckney was the same one found in the appellant’s possession, the state’s failure to produce this bill in court, along with the serial numbers assertedly recorded from it by the undercover detective, may well have struck the jury as a troublesome and inexplicable weakness in its case. It is quite understandable under these circumstances that the state would have desired to introduce the appellant’s prior cocaine possession conviction in an effort to prove to the jury that he was the type of person who might be expected to sell such drugs. However, the use of a defendant’s prior criminal record merely to establish that he is a person of criminal character is prohibited by OCGA § 24-9-20 (b), “unless and until the defendant shall have first put his character in issue.” See Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983).

An error is harmless only if it is “highly probable” that it did not contribute to the verdict. State v. Johnson, 238 Ga. 59, 60 (230 SE2d 869) (1976). Apparently, the state did no.t consider the appellant’s prior conviction to be harmless evidence, or it would not have insisted on introducing it. Under the circumstances, I would reverse the judgment below and remand the case for a new trial.

2. The majority states that “ Whitley [v. State, 193 Ga. App. 192 (1) (387 SE2d 348) (1989),] does not stand for the proposition that evidence of a defendant’s possession of drugs on another occasion is indiscriminately admissible in his trial for the sale of drugs.” I must respectfully disagree. The appellant in Whitley had been convicted of selling marijuana. He contended on appeal that there had been an insufficient showing of similarity to warrant the introduction of evidence that a quantity of marijuana had been seized from his premises some two and a half months subsequent to the sale for which he was on trial. In rejecting that contention, this court ruled as follows: “With regard to the showing of similarity, the ‘(e)vidence of subsequent (possession of marijuana) would be admissible in a trial for sale of marijuana. (Cit.) This is particularly true when (, as in the instant case,) identity is in issue. (Cit.)’ Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987). Thus, the trial court did not err in admitting the evidence of the subsequent seizure of marijuana.” Whitley, supra, 193 Ga. App. at 193.

Decided March 14, 1991

Rehearing denied March 29, 1991

Calhoun & Associates, Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

There is nothing in this language which remotely suggests that the location where the subsequent marijuana seizure occurred had any bearing on the court’s decision. Rather, the court’s holding in that case was quite clearly based on the assumption that evidence of unlawful drug possession on another occasion was per se admissible in a prosecution for selling drugs. Indeed, this very court subsequently interpreted the decision to that effect in Cross v. State, 196 Ga. App. 714, 715 (397 SE2d 125) (1990), citing it for the proposition that “[pjroof of subsequent possession of some unused quantity of contraband is a sufficiently similar offense to be admissible in a trial for the sale of contraband.” (Emphasis from original.) However, regardless of whether this court did or did not predicate its holding in Whitley on the assumption that there is a per se rule of admissibility in such cases, we appear to be unanimous in the present case in holding that no such per se rule of admissibility in fact exists.

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

       What this court actually said in Brown was not that evidence of subsequent possession would be admissible in a trial for sale of marijuana but that “[ejvidence of subsequent sales of drugs would be admissible in a trial for sale of marijuana.” (Emphasis supplied.) Id., 183 Ga. App. at 477.