text:
    74348, 74349.
    SELIGMAN et al. v. SAVANNAH WHOLESALE COMPANY, INC.; and vice versa.
    (363 SE2d 785)
   Carley, Judge.

Ms. Seligman and Mrs. Friedenberg (hereinafter referred to as the “Lessors”) leased premises to Savannah Wholesale Company, Inc. (hereinafter referred to as the “Lessee”) under a lease agreement that was to expire on January 31, 1985. In June of 1984, the Lessors began to negotiate the terms of a new lease with Mr. Forstot and Mr. Brueck, employees of the Lessee’s real estate division. Mr. Forstot sent Ms. Seligman a proposed lease and invited her to make revisions. Ms. Seligman made a counter-proposal to Mr. Forstot. On November 8, 1984, Mr. Brueck sent Ms. Seligman a revised lease which incorporated her suggestions. The cover letter read, in material part: “Enclosed you will find four (4) copies of our lease agreement, with the changes you requested, except for the following omissions. ... If the lease meets your requirements, please have three (3) copies executed and returned to me. I, in turn, will have them executed and return one (1) copy to you and one (1) copy to Mrs. Friedenberg. Thank you. Sincerely, Albert Brueck.” (Emphasis supplied.) On December 4, 1984, the Lessors executed the three copies of the new lease agreement and delivered those copies to Mr. Brueck. However, the Lessors were never in turn furnished a copy of the new lease agreement which had been formally executed on behalf of the Lessee. On February 1, 1985, the Lessors were orally notified that the new lease had not been and probably would not be formally executed by the Lessee. On February 4, 1985, the Lessee notified the Lessors by letter that it would not perform under the new lease and would vacate the premises within 90 days.

On February 19, 1985, the Lessors filed this suit, alleging that the Lessee, through its agents, had fraudulently induced the Lessors into signing a new lease agreement which the Lessee itself had never intended to perform. The Lessors also sought to enjoin the Lessee from entering or remaining on the premises but an agreement was reached whereby the Lessee was allowed to remain on the premises until March 31, 1985. After the premises had been vacated, the Lessors amended their complaint to add a breach of contract claim against the Lessee.

The Lessee subsequently moved for summary judgment in its favor as to both counts of the Lessors’ complaint. The trial court granted the Lessee’s motion as to the Lessors’ fraud claim but denied the Lessee’s motion as to the Lessors’ breach of contract claim. In case No. 74348, the Lessors appeal from the grant of the Lessee’s motion for summary judgment as to their fraud claim. In case No. 74349, the Lessee cross-appeals from the denial of its motion for summary judgment as to the Lessors’ breach of contract claim.

Case No. 74348

1. The grant of appellee-Lessee’s motion for summary judgment on the fraud claim is enumerated as error by the appellant-Lessors.

“The elements of fraud are ‘(1) a false representation made by the defendant; (2) scienter; (3) an intention to induce [the] plaintiff to act or [to] refrain from acting in reliance thereon; (4) justifiable reliance by the plaintiff; (5) damage to the plaintiff. [Cit.] . . .’ [Cit.]” Allen v. Sanders, 176 Ga. App. 647, 648 (1) (337 SE2d 428) (1985). The Lessors had alleged that, on November 8, 1984, when they were sent the letter wherein the unqualified request for their signatures on the new lease agreement was made and the unqualified representation as to the Lessee’s future execution of the new lease agreement was given, the Lessee had no present intention to perform under that new agreement. “Although fraud may not generally be predicated on statements which are promissory in nature as to future acts or events, it can be predicated on such representations where there is a present intention not to perform or a present knowledge that the future event will not occur. [Cits.]” Seminole Peanut Co. v. Goodson, 176 Ga. App. 42, 45-46 (3) (335 SE2d 157) (1985).

However, notwithstanding the allegations of the Lessors’ complaint, the Lessee presented unrebutted evidence in support of its motion for summary judgment which established that, at the time the letter had been sent to the Lessors, it had every intention of performing under the new lease agreement. Under this evidence, it was not until December of 1984 that the Lessee had become dissatisfied with the leased premises for reasons having nothing to do with the terms of the new lease and it was only then that the Lessee had begun to negotiate for a new lease elsewhere. “[0]nce a party in the position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements. [Cit.]” Waldrep v. Goodwin, 230 Ga. 1, 2 (1) (195 SE2d 432) (1973). Construing the evidence most strongly in favor of the Lessors, the “lack of scienter and false representation without more justifies granting the summary judgment [to the Lessee].” A-larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 385 (1) (300 SE2d 311) (1983). Accordingly, the trial court did not err in granting summary judgment to the Lessee as the Lessors’ fraud claim.

Case No. 74349

2. In its cross-appeal, the Lessee enumerates as error the denial of its motion for summary judgment as to the Lessors’ breach of contract claim.

The facts in this case are almost identical to those in 20/20 Vision Center v. Hudgens, 256 Ga. 129 (345 SE2d 330) (1986). In that case, the Supreme Court held “[w]ere it not for the existence of one clause in the proposed lease agreement... , we would be inclined to hold that there exist triable issues of fact on questions as to whether ... a binding contract was formed — as well as whether [the Lessee] is estopped to deny [its] agentfs’] lack of written authority to enter into the contract, because [the Lessee] had imbued the agent[s] with apparent authority; or whether the [Lessors’] negligence in not inquiring into the agent[s’] authority bars the [Lessors’] requests for relief. However, in view of the clause in the proposed lease agreement between the parties providing that the lease would become effective ‘only upon execution and delivery by Landlord and Tenant,’ we [hold] that a binding, written agreement was never consummated.” 20/20 Vision Center v. Hudgens, supra at 134-135 (6). The only factual distinction is that in 20/20 Vision Center, unlike in this case, the proposed lease agreement contained the clause whereby the agreement was to become effective “only upon execution and delivery by Landlord and Tenant.” Thus, we find to be controlling here, the reasoning which the Supreme Court stated that it would have followed in the 20/20 Vision Center case were it not for the existence of such a clause. Accordingly, we hold that, under the evidence of record in this case, there exist “triable issues of fact on questions as to whether . . . a binding contract was formed — as well as whether [the Lessee] is estopped to deny its agent[s’] lack of written authority to enter into the contract. . . .” 20/20 Vision Center v. Hudgens, supra at 134 (6).

3. The trial court’s denial of Lessee’s motion for summary judgment with regard to the applicability of the doctrine of promissory estoppel is enumerated as error. However, here, as in 20/20 Vision Center v. Hudgens, supra at 135 (7), “there do exist triable issues of fact on the question of whether [the Lessors are] entitled to relief under the doctrine of promissory estoppel.” 20/20 Vision Center v. Hudgens, supra at 135 (7).

4. The Lessee urges that, insofar as the Lessors sought and obtained its eviction from the premises, the Lessors acted to terminate any alleged new lease agreement and may not now sue for breach of contract.

After February 1, 1985, the Lessee had denied the existence of a new lease and proposed to vacate the premises within 90 days. By so doing, the Lessee rendered itself a holdover tenant at sufferance under the prior lease and the Lessors were clearly entitled to seek a forced surrender of the premises under that prior lease. Moreover, the Lessee’s denial of the existence of a new lease and its proposal to vacate the premises in only 90 days was also a potential anticipatory breach of any new multi-year tenancy that may have come into existence on February 1, 1985. “Where there has been a tender of a breach of an executory contract, the innocent party has an election of remedies: (1) to accept anticipatory breach as tendered and sue at once for damages, or (2) to treat the contract as remaining in force for the purpose for which it was made. [Cits.]” Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654, 655 (1) (234 SE2d 119) (1977). As previously discussed, genuine issues of material fact remain as to the existence of such an enforceable new lease agreement. Thus, construing the evidence most strongly for the Lessors, as the non-moving parties, they were legally authorized to accept the Lessee’s anticipatory breach of the new allegedly valid lease and to sue immediately for damages.

Decided November 23, 1987

Rehearing denied December 11, 1987.

H. Sol Clark, Malberry Smith, Jr., for appellants.

Sam P. Inglesby, Jr., Thomas A. Nash, Jr., for appellee.

Consequently, there is no inconsistency as to the Lessors’ efforts to dispossess the Lessee on the one hand and also to sue the Lessee for breach of contract on the other. By doing so, the Lessors were simply responding to the Lessee’s own election, which had been to remain in the premises after the old lease had expired but also to deny the existence of any valid new lease. The dispossession of the Lessee from the premises on March 31, 1985 was not the Lessors’ termination of the new tenancy. It was the Lessors’ termination of the Lessee’s unauthorized act of holding over under the old lease and the Lessors’ acknowledgment of the Lessee’s anticipatory breach of the new lease. The trial court did not err in denying summary judgment in favor of the Lessee as to the Lessors’ breach of contract claim.

Judgments affirmed.

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


source: Caselaw Access Project

author: Carley, Judge. Benham, Judge,

license: Public Domain

text:
    74663.
    KRAMER v. THE STATE.
    (363 SE2d 800)
   Carley, Judge.

Appellant was arrested and charged with the offense of driving under the influence of alcohol in violation of OCGA § 40-6-391. During the March 1986 term of the State Court of Cobb County, appellant filed in the clerk’s office of that court a document, the body of which provided, in pertinent part, as follows: “[TJhere being jurors impaneled and qualified to try this case at this time in the State Court of Cobb County, [appellant] specifically requests trial by jury and asks that the same be placed upon the minutes and that he be tried at this term or the next term of the State Court of Cobb County, or in default of such trial, that he be fully acquitted and discharged of said offense.” However, this document was captioned, not as a demand for trial, but merely as a “JURY DEMAND.” Rule 36.3 of the Uniform Rules for the State Courts (Rules) provides: “Every document or pleading presented for filing in a state court shall bear a caption which sets out the exact nature of the pleading or the type of complaint.”. (Emphasis in original.) When appellant was tried in neither the March term of court nor the next succeeding term, he moved for acquittal. Unlike his earlier document, appellant’s motion for acquittal specified in both its caption and its body that he was relying upon OCGA § 17-7-170. The trial court conducted a hearing and denied appellant’s motion for acquittal. Pursuant to Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985), appellant appeals directly from the order of the trial court denying the motion for acquittal.

“ ‘[HJenceforth a demand for trial will not be considered sufficient to invoke the extreme sanction of . . . [OCGA § 17-7-170] unless it is presented for what it is — a demand to be tried within the next succeeding term of court.’ ” Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984). Had appellant’s “JURY DEMAND” been filed prior to July 1, 1985, the effective date of the Rules, the entire focus of the determination of its sufficiency as a proper invocation of the provisions of OCGA § 17-7-170 would be upon the text of the document. See generally Edwards v. State, 177 Ga. App. 557 (1) (340 SE2d 229) (1986). However, pursuant to promulgation of the Rules, the sufficiency of appellant’s document as a proper invocation of OCGA § 17-7-170 now involves the consideration of not merely the language employed in the body thereof, but a consideration of its caption as well.

If the Rules now mandate that the sufficiency of the caption of a purported demand for trial pursuant to OCGA § 17-7-170 must be judged by the same standard that was previously applicable only to the sufficiency of its text, it would follow that the caption “JURY DEMAND” fails to set out “the exact nature of the pleading” as a demand for trial and would also constitute a misleading caption for a demand for trial pursuant to OCGA § 17-7-170. “The court has for some time been unduly liberal in its construction of what constitutes a valid demand for trial sufficient to invoke the sanctions of [OCGA § 17-7-170]. On several occasions, we have held that a demand for ‘trial by jury’ is sufficient in and of itself to do so. [Cits.]. ... In order to discourage this type of draftsmanship, we hold that henceforth a demand for trial will not be considered sufficient to invoke the extreme sanction of [OCGA § 17-7-170] unless it is presented for what it is — a demand to be tried within the next succeeding term of court.” (Emphasis supplied.) State v. Adamczyk, 162 Ga. App. 288, 289-290 (290 SE2d 149) (1982).

Those with whom documents are filed and those upon whom documents are served are entitled to rely upon the pleader’s compliance with the applicable law and the applicable Rules. Since the decision in Adamczyk and the subsequent promulgation of the Rules, the recipient of a document captioned as a “JURY DEMAND” will not necessarily attribute to it the same “exact nature” as would be attributed to a document captioned as a “DEMAND FOR TRIAL.” A written demand for a jury is not analogous to a demand for trial pursuant to OCGA § 17-7-170. State v. Adamczyk, supra. Accordingly, we hold that appellant’s document which is captioned as his “JURY DEMAND” “sets out the exact nature” of the pleading only insofar as the body of the pleading contains appellant’s demand for a jury trial. The caption does not set “out the exact nature” of the pleading as containing an additional demand by appellant for a speedy trial pursuant to OCGA § 17-7-170. To give effect to appellant’s pleading as a proper demand for not only a jury trial but also for a trial pursuant to OCGA § 17-7-170 would be to endorse resort to the same type of draftsmanship under the Rules that Adamczyk sought to discourage prior to their promulgation. In order for a criminal defendant to obtain the extreme sanction of OCGA § 17-7-170 he must show compliance with the applicable procedure. Because appellant’s document is not in such compliance, the trial court did not err in denying appellant’s motion for acquittal.

Decided November 25, 1987

Rehearing denied December 11, 1987

Charles A. Mullinax, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Bruce D. Horn-buckle, Assistant Solicitors, for appellee.

Judgment affirmed.

Banke, P. J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

I agree that the trial court did not err in denying appellant’s motion for acquittal, but not for the reason set out in the majority opinion. I find controlling the trial court’s findings of fact and conclusions of law as set out in its order; specifically, that by failing to refer to the applicable Code section (OCGA § 17-7-170), failing to characterize the motion as one for a speedy trial, and failing to prove that the prosecuting attorney had been served with a copy of the motion, appellant failed to put the clerk’s office and the prosecutor on notice that he was making a demand pursuant to OCGA § 17-7-170 although he did make a valid demand for a trial. It is my opinion that in this case, appellant’s failure to comply exactly with the state court rule is not in and of itself as significant as the other omissions.


author: Carley, Judge.

text:
    74887.
    LYNCH v. GEORGIA POWER COMPANY.
    (363 SE2d 777)
   Carley, Judge.

Appellant-plaintiff, who is a painter, attempted to lean an aluminum ladder against the side of an apartment house. The ladder fell backwards and came into close proximity to a power line belonging to appellee-defendant. An electric arc formed and appellant was seriously burned. Appellant filed this action, alleging that appellee had negligently installed and maintained its power line and that such negligence on the part of appellee was the proximate cause of his injury.

Appellee answered, denying the material allegations of appellant’s complaint. Appellee subsequently moved for summary judgment, asserting that it was not negligent and that, pursuant to OCGA § 46-3-33, the lack of any notification to it of appellant’s activities was a bar to his recovery. In support of its motion, appellee produced evidence that its power line did not pass within 8 feet of the building and that, under all of the existing circumstances, there was no negligence as to either its installation or maintenance of the power line. The trial court granted summary judgment in favor of appellee and appellant appealed. In Lynch v. Ga. Power Co., 180 Ga. App. 178 (348 SE2d 719) (1986), this court reversed because, in making its ruling, the trial court had considered appellant’s unfiled deposition. After the case was returned to the trial court, appellee filed appellant’s deposition and then renewed its motion for summary judgment. The trial court granted appellee’s renewed motion and appellant appeals from the grant of summary judgment in favor of appellee.

1. Appellant does not assert that such evidence as appellee produced in support of its motion for summary judgment would, if unrebutted, be insufficient to meet appellee’s burden as a movant to prove its non-negligent installation and maintenance of the electric wire in question. Instead, appellant contends only that the evidence which he produced in opposition to the motion for summary judgment was sufficient to rebut appellee’s evidence and showed that a genuine issue of material fact remained with regard to appellee’s alleged negligence.

Appellant submitted, in opposition to appellee’s motion, the affidavit and deposition of an expert. In his affidavit, the expert opined that, as installed and maintained, appellee’s electric wire was not in compliance with certain provisions of the National Electric Safety Code (NESC). However, neither certified nor sworn copies of the specific provisions of the NESC upon which the expert relied in reaching his opinion were attached to his affidavit. OCGA § 9-11-56 (e). Uncertified copies of the NESC provisions do appear as exhibits which were attached to the deposition of the expert. However, during his deposition, the expert stated that those provisions upon which he was relying were from the NESC as it had been approved on August 15, 1981. The incident giving rise to this suit occurred in May 1981, which was some months prior to the approval of the provisions of the NESC upon which the opinion of appellant’s expert was based. “[A]ny evidence as would conceivably be ‘illustrative’ of what might constitute the exercise of ‘ordinary care’ in the specific situation at issue, including private guidelines, is relevant and admissible for whatever consideration in that regard the jury wishes to give to it. [Cit.]” Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (1) (325 SE2d 844) (1984). However, such private guidelines as were promulgated after the specific situation at issue do not constitute evidence which would be admissible for consideration on the issue of negligence. See generally Kilgore v. Nasworthy, 124 Ga. App. 261, 262 (4) (183 SE2d 481) (1971). Accordingly, the trial court correctly ruled that the NESC provisions relied upon by appellant’s expert witness were “not applicable to the present case” and that the opinion based solely upon those inapplicable provisions had no probative value. The only NESC provisions which were shown to be applicable and which were properly in evidence were those of the 1961 NESC. That the placement of the lines in question complied with those provisions is not disputed.

Appellant further argues that his own affidavit creates an issue of fact as to whether the electric wire passed within 8 feet of the apartment building. Appellant urges that there thus remained for jury resolution the question of whether the electric wire was, as located, in violation of the very standard of care that appellee’s own evidence showed to be applicable under the existing circumstances. However, appellant’s affidavit states only that the electric line was “probably less than eight feet” from the apartment building. (Emphasis supplied.) In his subsequent deposition, appellant acknowledged the correctness of appellee’s actual measurements which showed that the distance of the electric line from the apartment building was greater than 8 feet. See Lynch v. Ga. Power Co., supra. Appellant’s own expert testified that, by his actual measurements, the electric wire was more than 8 feet from the building. Thus, notwithstanding appellant’s estimate that the distance was “probably less than 8 feet,” the uncontroverted evidence as to the actual measurement of the distance shows it to be greater than 8 feet. Evidence as to the actual measurement of a distance will control over an estimate as to that distance. See generally Georgia Power Co. v. Williams, 132 Ga. App. 874 (209 SE2d 648) (1974). Accordingly, the trial court did not err in ruling that the original estimate of the distance contained in appellant’s affidavit did not create a jury issue as to whether appellee’s electric wire passed within 8 feet of the apartment building. Since appellant does not contend that unrebutted evidence that the electric wire was located at a distance greater than 8 feet from the building would not demand a finding of appellee’s non-negligence under the circumstances, the trial court did not err in granting summary judgment in favor of appellee as to that issue.

2. Because no genuine issue of material fact remained as to appellee’s non-negligence in installing and maintaining the electric wire, the trial court did not err in holding that the failure to provide notice to appellee of appellant’s activities was a bar to liability. “ ‘But for’ appellant’s ‘construction work’ activity under the wires, contact with them would never have been made. The effect of holding that, notwithstanding the lack of any notice to appellee of that activity, it may still be held liable to appellant would be to negate the provisions of OCGA § 46-3-33. The trial court did not err in granting summary judgment in favor of appellee. [Cit.]” Butler v. Ga. Power Co., 183 Ga. App. 144, 146 (358 SE2d 266) (1987).

Decided November 18, 1987

Rehearing denied December 11, 1987

George H. Connell, Jr., for appellant.

Robert L. Pennington, Scott A. Farrow, Kevin C. Greene, for appellee.

Judgment affirmed.

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


text:
    74996.
    WILMOCK, INC. v. FRENCH.
    (363 SE2d 789)
   Carley, Judge.

Appellee-plaintiff is a homeowner. She brought this suit in tort against appellant-defendant and numerous others, seeking to recover damages for the malfunctioning septic tank system that was located on her property. Appellant is the general contractor who built the house and appellee alleged that appellant’s negligence in that capacity was a proximate cause of the injury to her property. Appellant answered, denying the material allegations of appellee’s complaint.

The case came on for jury trial. At the close of appellee’s evidence and then again at the close of all the evidence, appellant moved for a directed verdict. The trial court denied the motion in both instances. The jury returned a verdict in favor of appellee and the trial court entered judgment thereon. Appellant’s motion for judgment n.o.v. or, in the alternative, for new trial was denied and it appeals.

1. In related enumerations of error, appellant raises the general grounds. In Dunant v. Wilmock, Inc., 176 Ga. App. 48 (335 SE2d 162) (1985), appellant was sued by another plaintiff-property owner whose complaint contained similar allegations as to appellant’s, negligent performance as a general contractor and the injurious consequences thereof. In that case, this court held that appellant was entitled to summary judgment as against the property owner, reasoning as follows: “As for negligence, it appears without dispute from the affidavit of [appellant’s] president that [appellant] took no part in the planning or construction of the septic tank system and had no knowledge of the existence of any defects therein, having left this aspect of the construction entirely to the subcontractor who installed it. It further appears without dispute that, based on an engineering report previously submitted on behalf of the developer of the subdivision, the county health department had approved the installation of a septic tank system on the property, had issued a permit therefor, specifying the type and size of the system to be installed, and had inspected and approved the work after its completion. Under such circumstances, it has been held that any negligence by the subcontractor in installing the system is not imputable to the builder and that the builder is entitled to summary judgment on the issue of negligence. [Cit.]” Dunant v. Wilmock, Inc., supra at 48-49. On this appeal, appellant urges the existence of similar undisputed evidence and contends that it is, therefore, entitled to a favorable outcome similar to that which it secured by the Dunant opinion.

As indicated, the Dunant case was on summary judgment and its focus was solely upon allegations of appellee’s negligence with reference to the installation of the septic tank system. Thus, the opinion in Dunant stands for the proposition that appellant, as the movant for summary judgment, had met its burden as to those allegations, in that its undisputed evidence showed that the septic tank system had been installed by an independent contractor and the applicable law provides that “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in [that business he] is not subject to the immediate direction and control of the employer.” (Emphasis supplied.) OCGA § 51-2-4. Therefore, implicit in the holding of Dunant is that the plaintiff-property owner therein had not met his burden of showing the applicability of any recognized exception to the general rule of non-liability which appellant’s evidence had shown to be controlling under the circumstances. “An employer is liable for the negligence of a contractor: [in several specific enumerated instances].” (Emphasis supplied.) OCGA § 51-2-5.

The case at bar does not involve summary judgment, but a judgment entered on a verdict returned after a jury trial. Unlike Dunant, supra, the alleged negligence attributed to appellant in this case is not merely as to the installation of the septic tank system on appellee’s property. There is also evidence that appellee’s property had been graded in a turtleback fashion so that it was higher in the center and sloped down toward the property lines. Although the evidence shows that neither the installation and placement of appellee’s septic tank system nor the turtleback grading of her property would, standing alone, necessarily constitute negligent construction, the evidence also shows that the combination of the installation and placement of the septic tank system with the turtleback grading of the property had caused surface water to collect and stand in the area directly above appellee’s septic tank, rather than to drain off appellee’s property. The result of this standing water was the flooding of the entire septic system and a backup of waste water into appellee’s home. Although the evidence does show that both the installation and placement of the septic system and the turtleback grading of the property had been performed by independent contractors, appellee, unlike the plaintiff-property owner in Dunant, supra, did not fail to address the applicability of an exception to the general rule of appellant’s non-liability for the tortious acts committed by those independent contractors. Appellee produced evidence that appellant had accepted and thereby ratified the installation and placement of the septic tank system and the turtleback grading of appellee’s property. “An employer is liable for the negligence of a contractor: ... If the employer ratifies the unauthorized wrong of the independent contractor.” OCGA § 51-2-5 (6). “Ratification of the wrongful act may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the work in its defective condition to the employer. [Cit.] . . . [T]he ratification must be, not of the contract, but of the unauthorized wrong. [Cit.] Ordinarily, in order to ratify an act, one must have knowledge of the act. [Cit.]” Southern Mills v. Newton, 91 Ga. App. 738, 743 (2b) (87 SE2d 109) (1955). See also Chipley v. Beeler, 122 Ga. App. 781, 782 (1) (178 SE2d 767) (1970). Here, there was sufficient evidence that appellant accepted the acts of its independent contractors with regard to the septic tank system and the grading of the property and that, at the time of the acceptance, appellant knew or should have known, that the result of those acts would be flooding of the septic tank system and the backup of waste water into the house that was being built on the property. “The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict. [Cits.]” Church's Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1c) (256 SE2d 916) (1979). It follows that the general grounds are without merit.

2. Appellant enumerates error as to an issue concerning appellee’s entitlement to recover the expenses of litigation. The jury awarded appellee the expenses of litigation only as against one of appellant’s co-defendants and not as against appellant. Accordingly, error with regard to the recoverability of expenses of litigation could not have harmed appellant and we will not address the merits of this enumeration.

3. The trial court’s denial of appellant’s motion for summary judgment is enumerated as error. “ ‘ “After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” [Cits.]’ [Cit.]” Hardaway Constructors v. Browning, 176 Ga. App. 530 (336 SE2d 579) (1985).

Decided November 23, 1987

Rehearing denied December 11, 1987

Marshall R. Wood, for appellant.

Stephen R. Yekel, for appellee.

4. Appellant enumerates as error the trial court’s failure to give one of its written requests to charge. The record shows that the legal principles contained in appellant’s refused request was otherwise covered in the charge as given by the trial court. There was no error. See Seaboard C. L. R. Co. v. Thomas, 125 Ga. App. 716, 718 (188 SE2d 891) (1972), aff'd 229 Ga. 301 (190 SE2d 898) (1972).

5. Remaining enumerations of error not otherwise addressed have been considered and found to be without merit.

Judgment affirmed.

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


author: Benham, Judge.

text:
    75141.
    LUCKEY v. THE STATE.
    (363 SE2d 791)
   Benham, Judge.

Appellant was convicted of four counts of child molestation and four counts of aggravated child molestation of his niece and his nephew. On appeal, he challenges the sufficiency of the evidence on Count VII of the indictment, the introduction of similar offenses, and certain testimony of the victims’ father. We affirm.

1. Count VII of the indictment charges appellant with causing his 8-year-old niece and 11-year-old nephew to “undress and lay on top of each other, with the intent to arouse or satisfy the sexual desires of the said accused.” He claims that the evidence adduced at trial was insufficient to support conviction on that count. We disagree.

The male victim testified that appellant tried “to make [him and his sister] do something . . . forced [them] together ... to make [them] do stuff.” He further testified that when the incident took place he was in his shorts, and that appellant took his sister’s panties off and “tried to force us together.” The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of child molestation as described in Count VII of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); White v. State, 180 Ga. App. 185 (1) (348 SE2d 728) (1986).

2. Early in the trial, the victims’ father testified that his son had told him that appellant “made him do something ugly,” and that the boy went on to recount the oral and anal sex acts appellant forced him to perform. Appellant objected to the evidence as hearsay, to which the prosecuting attorney responded that the testimony was permitted under OCGA § 24-3-16. The trial court overruled the objection, and appellant claims error.

OCGA § 24-3-16 permits admission of statements made by a child under 14 years old describing any acts of sexual conduct performed with or on the child by another if the child is available to testify in the proceedings and the trial court finds the circumstances of the statement provide sufficient evidence of reliability. Although the trial court did note that the victim was available to testify, the record is not clear whether the trial court found that circumstances surrounding the statements in question carried “sufficient indicia of reliability.” See Godfrey v. State, 183 Ga. App. 183 (1) (358 SE2d 264) (1987). However, this omission, if it is error, is harmless because the testimony was admissible for other reasons. The victim did testify at trial, and on cross-examination, counsel for appellant asked him whether he had hallucinated and whether he had told his cousin that his half-brother, and not appellant, had molested him. This questioning constituted an attack on the victim’s veracity which rendered admissible the victim’s out-of-court statement about the crimes, since “the defendant had the opportunity to confront the victim and cross-examine him under oath about his out-of-court statement.” Lynn v. State, 181 Ga. App. 461, 464 (352 SE2d 602) (1987). Moreover, the evidence about which appellant complains was cumulative of the victim’s in-court testimony, which renders harmless the admission of incompetent evidence. Id. Appellant’s enumeration presents no ground for reversal.

3. Appellant also objected to the admission of similar-offense testimony against him. The victims’ 17-year-old half-brother testified for the State that when he was seven years old, appellant forced him to commit an act of oral sodomy. Appellant argues that there was no logical connection between the earlier crime and the ones for which he was being tried because the previous crime occurred ten years earlier. We find no merit in appellant’s contention. A ten-year lapse in time between the incidents does not render the evidence inadmissible. See Rich v. State, 254 Ga. 11, 14 (325 SE2d 761) (1985). See also Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985); Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985). Moreover, “ ‘[t]he sexual molestation of young children, regardless of sex or type of act, is of sufficient similarity to make the evidence admissible. [Cit.]’ ” Keeler v. State, 181 Ga. App. 208 (2) (351 SE2d 731) (1986).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided November 23, 1987

Rehearing denied December 11, 1987

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, Diane L. Perry, Assistant District Attorney, for appellee.


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

text:
    75209.
    WILLIAMS v. SUMMIT PSYCHIATRIC CENTERS, P.C.
    (363 SE2d 794)
   Birdsong, Chief Judge.

Summary Judgment — False Imprisonment — Res Judicata. This is the second appearance of this case before this court. See Williams v. Smith, 179 Ga. App. 712 (348 SE2d 50). For a succinct statement of the facts, see that case. Mrs. Williams sued both Dr. Smith and Summit Psychiatric Centers, P.C. in this suit in three tort counts but sought recovery from Summit only in the first count alleging false imprisonment. Also it is quite clear that Mrs. Williams seeks a recovery from Summit as the employer of Smith on the theory of respondeat superior. After the case was remanded back to the trial court for further consideration of the allegations against Summit following the discharge of the employee Smith on grant of summary judgment, Summit moved for summary judgment on several grounds, one being res judicata. Mrs. Williams sought to. avoid the grant of summary judgment on that ground by submitting a second affidavit in which she sought to show that persons and employees of Summit other than Smith were involved in the imprisonment and thus the doctrine of res judicata would not apply. The trial court rejected this reasoning and granted summary judgment to Summit. It is this grant that forms the basis of Mrs. Williams’ second appeal. Held:

1. In her affidavit in contravention of Smith’s motion for summary judgment, Mrs. Williams had submitted the following: “On 20 March, 1984 I went to the offices of Summit Psychiatric Centers, P.C. for counseling because of marital problems. The lady psychologist suggested that I needed medication to sleep at night and that she would have a doctor write a prescription for me. I told her ... I did not want to take any medication. Dr. Randy Smith, an employee of Summit Psychiatric Centers, P.C. then entered the room and told me he was going to commit me and that I could not leave. I asked him not to do so. I pointed out that I was in the middle of a divorce and that the custody of my child would be in jeopardy if he committed me, that I was not suicidal and just wanted to return to my job. Dr. Smith said I was not free to return to my job and that, on him executing the appropriate paperwork, I would be committed. After some time I was able to call my attorney. Then I picked up my things, left the office and returned to my employment at Cobb General Hospital.”

On remand to consider further the complaint against Summit, and to supplement her affidavit in those proceedings against Summit, Mrs. Williams filed an additional affidavit in which she stated: “On 20th March, 1984 I went to the offices of Summit Psychiatric Centers, P.C. for counseling because of marital problems. The lady psychologist suggested that I needed medication to sleep at night and that she would have a doctor write a prescription for me. I told her that I did not want to take any medication. Dr. Randy Smith, an employee of Summit Psychiatric Centers, P.C. then entered the room and told me he was going to commit me and that I could not leave. He told me that if I were to leave I would be arrested and physically taken to a mental hospital and that therefore the employees of Summit Psychiatric Centers, P.C. would prevent me from leaving the premises. I was left in a room by myself and when I opened the door I saw that I was being watched by several employees of Summit Psychiatric Centers, P.C. with great attention. I feared that if I tried to leave, I would be physically and forcefully restrained and that force would be used to stop me leaving. I was again told I could not leave by employees of Summit Psychiatric Centers, P.C. that I was being committed and would be physically restrained from leaving the premises, to the extent that force would be used. During this time Dr. Smith and other employees of Summit Psychiatric Centers, P.C. came in and out of the room where I was held, each telling me not to leave. I was thus restrained of my liberty for a considerable period of time. Only after the reassurance of my attorney, through her secretary, that I could not be legally held, did I attempt to leave.”

2. In the first decision of this case involving the employee of Summit Psychiatric Centers, P.C., Dr. Smith, this court held: “ ‘False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.’ OCGA § 51-7-20. ‘The restraint constituting a false imprisonment may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit, and it is sufficient if they operate upon the will of the person threatened and result in a reasonable fear of personal difficulty or personal injuries. . . .’ However, ‘the evidence in this case demands a finding that [appellee] did nothing to induce a reasonable fear in [appellant] that there would be a personal difficulty or personal injury if [she] had refused the command or request made. . . .’ The evidence is undisputed that, notwithstanding anything that appellee may have said to her, appellant was at all times allowed to move freely about the Summit premises and that, when she left, she did so without incident. It thus appears that appellant was at no time physically restrained by virtue of any ‘threat’ of immediate detention at the hands of appellee. ‘Threats to imprison are not imprisonments. To constitute false imprisonment, there must be actual physical restraint . . . by force or fear. . . .’ The trial court did not err in granting appellee summary judgment as to Count One [false imprisonment].” Williams v. Smith, supra at p. 713 (1). (Emphasis deleted.)

3. Mrs. Williams contends that the findings of fact and law in Smith, supra, should not be dispositive as to her complaint against Summit for she has submitted a much fuller factual statement in this second consideration of the restraint at the Summit psychiatric facility. We are not persuaded by this contention. In the affidavit in Smith, Mrs. Williams presented her feelings that Dr. Smith told her he was going to commit her and that she was not free to leave. She contended Smith emphasized to her that she could not return to work at her job and that she would be committed as soon as he prepared the necessary paper work. This court concluded that this constituted nothing more than a verbal threat of imprisonment and that Mrs. Williams was free to move about, use the telephone and to leave when she desired, all of which she did. While in the second affidavit, Mrs. Williams set forth more facts showing the basis of her fear of trying to leave, in substance she presented no further evidence that she was physically restrained or was not actually free to use the phone and to leave when she wanted to go without any effort to restrain her. Simply fleshing out with additional detail the threats of restraint did not convert the threat of imprisonment into actual imprisonment. Thus we find the consideration of the false imprisonment issue and the holding thereto as issued in Smith, supra, to be dispositive of the false imprisonment Count I as to Summit. Moreover, the liability of Summit being purely derivative (as discussed in the next division) and dependent on the doctrine of respondeat superior, a judgment in favor of the servant and against Williams is res judicata in favor of the master, Summit, in the continuation of the suit by Williams. Gilmer v. Porterfield, 233 Ga. 671, 673 (1) (212 SE2d 842). This application of the doctrine of res judicata renders Mrs. Williams’ additional facts relating to her subjective fears and imprisonment nugatory, for the issues settled in Smith, supra, are conclusive between Mrs. Williams, Smith and Smith’s privies not only as to all matters put in issue in the Smith case but those facts that could have been put in support of those issues. See Delta Air Lines v. Woods, 137 Ga. App. 693, 695 (224 SE2d 763).

4. There is a second ground for this decision. It is manifestly clear that Summit, as a corporation, did nothing in its individual corporate capacity to ever issue a threat to Mrs. Williams to imprison her. The only possible threats were by Dr. Smith and facially supported by other unnamed employees of Summit. There is no evidence in this record of any acts by Summit other than through its employees. It is well established that when a claim is brought based solely on the actions of a servant or servants and the servant has received a favorable verdict exonerating the servant from all liability and the pleadings do not show an independent tort by the master, the legal theorum of respondeat superior has no application and the master is entitled to a verdict in his favor as well. Gilmer v. Porterfield, supra; Colonial Stores v. Fishel, 160 Ga. App. 739, 742 (288 SE2d 21). We find this additional ground to support our conclusion of no error in the grant of summary judgment to Summit.

5. The additional enumerations of error by Williams are rendered moot by the result reached herein relating to the issue of res judicata and respondeat superior, and accordingly need not be addressed.

6. The dissent finds it “cannot agree with the majority opinion that the appellant’s second affidavit does not establish a factual issue over whether any acts, gestures, or words of the center’s employees induced a reasonable apprehension that force would be used to keep her there if she tried to leave.” What the majority holds is: “Thus we find the consideration of the false imprisonment issue and the holding thereto as issued in Smith [179 Ga. App. 712 (1)] to be dispositive of the false imprisonment Count I as to Summit.”

In Williams v. Smith, supra, with all nine judges concurring, this court found that Mrs. Williams was not falsely imprisoned at the Summit Psychiatric Center on this occasion. Id. (1). The dissent would hold that this issue, which has been settled by the trial and the appellate courts, can now be relitigated because Mrs. Williams has filed a second affidavit which gives a different account of this incident than the one she gave in her first affidavit. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40. The dissent correctly recognizes that Summit is in privity with Dr. Smith, because the liability of Summit was derivative and dependent upon the principle of respondeat superior. Thus, that which is res judicata as to Dr. Smith is res judicata to his employer, Summit. Hunter v. Embree, 122 Ga. App. 576, 577 (178 SE2d 221); Giles v. Smith, 80 Ga. App. 540, 543 (56 SE2d 860); Roadway Express v. McBroom, 61 Ga. App. 223 (1) (6 SE2d 460). Further, the doctrine of res judicata will bar an action “even if some new factual allegations have been made. . . .” Kenney v. Don-Ra, 178 Ga. App. 492, 495 (1) (343 SE2d 779); Medlin v. Carpenter, 174 Ga. App. 50, 51 (2) (329 SE2d 159). Hence, as stated above, the consideration of the false imprisonment issue in Williams v. Smith, supra, is dispositive of any claim of false imprisonment as to Summit, who is in privity with Dr. Smith because of their master-servant relationship, upon which Williams’ claim of liability is based.

Judgment affirmed.

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

Deen, Presiding Judge,

dissenting.

When the grant of summary judgment for the actual psychiatrist was before this court previously, this court held that the appellant’s affidavit was insufficient to demonstrate false imprisonment because there was no evidence of actual physical restraint by force or fear. Williams v. Smith, 179 Ga. App. 712 (348 SE2d 50) (1986). I agreed with that determination then and still agree with it, based on that initial affidavit. I would, however, have reached the opposite conclusion had the affidavit subsequently submitted by the appellant been before this court at that time.

In that second affidavit, quoted by the majority opinion, the appellant states that the psychiatrist specifically told her that she would be arrested and physically taken to a mental hospital if she tried to leave, and that other employees as well repeatedly told her that she could not leave the center. As noted by this court in Williams v. Smith, supra at 713, false imprisonment may occur without actual restraint; the requisite element of restraint may arise out of any acts, gestures, or words that induce a reasonable apprehension that force will be used to restrain. I cannot agree with the majority opinion that the appellant’s second affidavit does not establish a factual issue over whether any acts, gestures, or words of the center’s employees induced a reasonable apprehension that force would be used to keep her there if she tried to leave. The fact that she eventually mustered the courage to try, and actually left without restraint, would not conclusively contradict her testimony that for a period of time she remained at the center solely out of fear of being restrained.

The majority opinion correctly concludes that under the doctrine of res judicata, the psychiatric center has no derivative liability stemming from the psychiatrist’s acts or words, regardless of the additional facts recounted in the appellant’s second affidavit. However, there is no basis for similarly barring a claim against the center based on the acts of the other employees. The majority opinion claims that in Williams v. Smith, supra, this court held that the appellant was not falsely imprisoned at the Summit Psychiatric Centers. However, the holding in that case was not quite so expansive; this court merely held that the psychiatrist was entitled to summary judgment on this claim. Summit’s liability was not addressed. Again, I agree that Williams v. Smith, supra, eliminates the psychiatrist as one of the bases for Summit’s derivative liability, but it does not similarly eliminate the acts of Summit’s other employees as a basis for liability.

Decided November 24, 1987

Rehearing denied December 11, 1987

Adele P. Grubbs, for appellant.

Terrance C. Sullivan, Timothy H. Bendin, for appellee.

Especially where psychiatric matters are concerned, mental freedom often goes hand in hand with physical liberty. “ ‘A psychiatrist who accepts as his “patient” a person who does not wish to be his patient, defines him as a “mentally ill” person, then incarcerates him in an institution, bars his escape from the institution and from the role of mental patient, and proceeds to “treat” him against his will — such a psychiatrist, I maintain, creates “mental illness” and “mental patients.” He does so in exactly the same way as the white man who sailed for Africa, captured the Negro, brought him to America in shackles, and then sold him as if he were an animal, created slavery and slaves.’ Ibid., p. 169. ‘Involuntary Mental Hospitalization,’ Thomas Szasz.” Shirley v. State, 149 Ga. App. 194, 196 (253 SE2d 787) (1979).

The appellant’s complaint may sound somewhat far-fetched, but that is no reason for this court to deny the proper effect of the appellant’s evidence. Her second affidavit creates an issue of fact over whether she was falsely imprisoned by the employees of the psychiatric center, a factual issue that should be resolved by a jury.

Accordingly, I must respectfully dissent.


author: McMurray, Presiding Judge.

text:
    74387.
    PIERCE COUNTY SCHOOL DISTRICT v. GREENE.
    (363 SE2d 825)
   McMurray, Presiding Judge.

Marsha Regina Greene (plaintiff) brought an action against the Pierce County School District (defendant), Marvin D. Soles and Cato Timber Company for injuries she sustained after she was struck by a truck which was owned by Cato Timber Company and operated by Mr. Soles. The evidence adduced at trial, construed most favorably to support the jury’s verdict, was as follows:

On May 11, 1983, plaintiff, who was then 10 years of .age, was transported from school on a school bus owned by defendant and operated by defendant’s driver, Elaine M. Lee. Ms. Lee stopped the school bus at a stop sign on a dirt road which was perpendicular to a paved rural road near plaintiff’s home. Plaintiff exited the bus, stepped onto the dirt road and, as plaintiff walked across the paved road to her home, she was struck by Cato Timber Company’s log truck. As a result of the collision, plaintiff suffered serious injuries.

The jury returned a verdict in favor of plaintiff and against defendant in the amount of $250,000. Cato Timber Company and Mr. Soles were absolved of liability for plaintiff’s injuries. After the denial of defendant’s motion for new trial, this appeal followed. Held:

1. In defendant’s only enumerations of error it contends the trial court erred in instructing the jury “on the law of accident which was also an incorrect statement of law” and on the legal definition of “crosswalk” and argues that “[t]hese charges were harmful ... in that they served as a source of confusion to the jury which, in turn, adversely affected [its] right to contribution from [Cato Timber Company and Soles].”

Although defendant answered and alleged that the acts of Cato Timber Company and Soles were the cause of plaintiff’s injuries, defendant asserted no cross-claim against its co-defendants for contribution. See OCGA § 9-11-13 (g). Consequently, assuming the trial court’s jury instructions were erroneous and may have adversely affected a claim of contribution by defendant against its co-defendants, since no such claim was asserted we see no harm to defendant as to its liability to plaintiff. In other words, defendant may not compel plaintiff to another trial on appeal based on harm in an action which was never asserted and was not before the jury for resolution.

(a) “ ‘The charge on accident, if improper, tended to help rather than harm the defendant, by giving it the benefit of an additional defense, and was not error requiring a new trial.’ Spalding Lumber Co. v. Hemphill, 77 Ga. App. 1 (2) (47 S.E.2d 514). While to so charge would have been harmful to the plaintiff had the jury returned a verdict for the defendant, where as here the jury found for the plaintiff, no harmful error is shown.” Hubbard v. Cofer, 98 Ga. App. 565, 568 (5) (106 SE2d 358). We find no harmful error in the court’s charge on “accident.”

(b) In regard to the court’s charge on the definition of “crosswalk,” the court defined a crosswalk as prescribed in OCGA § 40-1-1 (8) (A) and instructed the jury that plaintiff was not struck “within a legally defined crosswalk . . . .” We find no harm in this instruction as the undisputed evidence showed that plaintiff was not in or near a crosswalk at the time she was injured. “While Code § 81-1104 [now OCGA §§ 9-10-7 and 17-8-55] prohibits a trial judge from intimating or expressing any opinion as to what has or has not been proved, yet where, as [in the case sub judice], the evidence demands a finding as to the opinion expressed, there is no cause for reversal. Imperial Investment Co. v. Modernization Construction Co., 96 Ga. App. 385 (2) (100 SE2d 107); Goldstein v. Karr, 110 Ga. App. 806 (140 SE2d 40); Rauch v. Shanahan, 125 Ga. App. 782 (189 SE2d 111).” Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 668 (4), 669 (209 SE2d 66). Further, contrary to defendant’s assertions that this instruction was confusing and misleading, we find nothing therein which prejudiced defendant’s cause, thereby requiring a new trial.

Decided December 2, 1987

Rehearing denied December 14, 1987

Terry A. Dillard, Joseph E. East, for appellant.

John R. Thigpen, Sr., William J. Edgar, M. Theodore Solomon II, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

       In its supplemental brief, defendant raises the question, “is it res judicata to bring a separate action for contribution against its [co-defendants]?” In response, it is sufficient to say that this court is for the correction of harmful error and, since the issue of res judicata or collateral estoppel was not before the trial court for resolution, our holding in the case sub judice in no way addresses the issue of estoppel and how that doctrine affects a subsequent action between co-defendants as to their liability inter se. However, for analysis regarding this issue, see 24 ALR3d 318.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    74882.
    McBRIDE v. THE STATE.
    (363 SE2d 802)
   Beasley, Judge.

Defendant was convicted of rape, OCGA § 16-6-1, and aggravated sodomy, OCGA § 16-6-2, and appeals following denial of his motion for new trial.

1. Defendant contends the evidence was not sufficient to support the verdict.

The victim testified that defendant committed acts which constituted the crimes rape and aggravated sodomy. Much of the victim’s testimony was corroborated by a physician who examined the victim. Evidence was introduced showing that defendant had raped and assaulted another woman in 1982 under circumstances similar to those alleged by the victim. Defendant testified and admitted being with the victim on the night in question but denied commission of the crimes.

Construing the evidence in favor of the jury’s verdict, any rational trier of fact could have found defendant guilty beyond a reasonable doubt of the offenses of rape and aggravated sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986); Price v. State, 179 Ga. App. 691, 693 (2) (347 SE2d 365) (1986).

2. Next, defendant contends the trial court erred in permitting testimony from a state’s witness whose name had not been provided to him prior to trial pursuant to demand as mandated by OCGA § 17-7-110. Over objection, the state presented evidence showing that defendant had been convicted in 1982 of rape and aggravated assault. The victim of those crimes testified that defendant raped and assaulted her under circumstances similar to the circumstances alleged by the victim here.

Prior to trial, the state gave notice that it intended to introduce evidence of a prior conviction, as required by USCR 31.3, and the notice included a certified copy of the indictment, plea, verdict, and sentence.

It also provided defendant with a list of witnesses, but the name of the victim of the prior incident was not on it.

“[T]he statute ‘must be subject to reasonable interpretation’ (Elrod v. State, 128 Ga. App. 250, 252 (196 SE2d 360) (1973)) and if, under the circumstances, the purposes of the statute were met, or if the relief sought exceeded the relief sufficient to satisfy those purposes, or if the error was harmless, reversal was not required even though the unlisted witness was allowed to testify in contravention of the statute. [Cits.]” Huff v. State, 141 Ga. App. 66 (1), 67 (232 SE2d 403) (1977). “The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. Logan v. State, 170 Ga. App. 809, 810 (318 SE2d 516) (1984).” Bryant v. State, 174 Ga. App. 522, 523 (4), 524 (330 SE2d 743) (1985).

In addition, the state did not follow the requisites of USCR 30.3. This was not a newly-discovered witness anyway, as the state admitted that it had put her name on a supplemental list of witnesses but had not filed nor served it. The state, but not defendant, knew she would be called if she could be located for trial.

Defendant complained when it became evident at trial that the state would call the victim in that prior case as a witness. The gist of his objection was that the rule and law were violated and that he was not informed by the “similar transaction” notice that Juanita Evans would be a witness because the incident could be evidenced simply by introduction of the documents, copies of which he had been supplied with. The implication that merely this was the nature of the intended evidence was strengthened by the fact that her name was not on the list of witnesses. That being the case, defendant argued, he was deprived of the alert which would prompt him to interview her before trial, which alert would also prompt him to prepare prior to trial for her cross-examination.

The trial court recognized that the law and rule were not complied with but created what it called an exception, ruling that since the name of the victim was included in the notice of intent to present evidence of a similar transaction, the victim could testify even though not included in the list of witnesses. This was clearly error, as the statute and rules heretofore cited provide for no such exception. And for good reason.

Evidence of a prior conviction is frequently, if not mostly, offered in the form of the documents such as those copied to defendant in this case. Defendant should not have to guess that the state also intends to offer live testimony concerning the details of that prior crime. USCR 31.3 serves a different purpose than does USCR 30.3. The latter requires the state to tell defendant who is going to testify. “[T]he transcending purpose of this Code section is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial.” Hicks v. State, 232 Ga. 393, 399 (207 SE2d 30) (1974). As explained in that case, the goal is to provide a reasonable time before trial for an adequate preparation of a defense.

The former requires the state to tell defendant that a prior act, which ordinarily would be inadmissible because violative of the prohibition against evidence of bad character (OCGA §§ 24-2-2; 24-9-20 (b)), will be offered on the theory that it is an exception because connected in some way to the crime being prosecuted. This relates to the substance of the evidence, not the means by which it will be conveyed.

As defendant tried to point out below, it was important for him to know that the state intended to call the victim and not rely only on the documents of the conviction, for the documents would only supply the broadest parameters of similarity between the two incidents. Tbe critical details of similarity would have to be fleshed out by the supplementing testimony of a witness knowledgeable about that earlier incident. It would arguably be an easier burden to thwart the introduction or at least the significance of the “similar transaction” evidence if all that was offered was the documentary evidence.

The state, not having notified defendant as required, cannot in these circumstances show that its omission was harmless.

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley, Pope, and Benham, JJ., concur. Been, P. J., McMurray, P. J., and Sognier, J., dissent.

McMurray, Presiding Judge,

dissenting.

This court has consistently refused to give “a mandatory construction” to OCGA § 17-7-110, “holding rather that the statute ‘must be subject to reasonable interpretation’ (Elrod v. State, 128 Ga. App. 250, 252 (196 SE2d 360) (1973)) and if, under the circumstances, the purposes of the statute were met, or if the relief sought exceeded the relief sufficient to satisfy those purposes, or if error was harmless, reversal was not required even though the unlisted witness was allowed to testify in contravention of the statute. [Cits.]” Huff v. State, 141 Ga. App. 66 (1), 67 (232 SE2d 403).

Decided November 25, 1987

Rehearing denied December 14, 1987

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee.

In the case sub judice, although the victim of the previous similar crimes was not included on the list of witnesses provided by the State to defendant prior to trial, the State provided notice to defendant’s counsel, over two months prior to trial, of its intention to introduce evidence of defendant’s prior convictions for the rape and aggravated assault of the unlisted witness who testified on behalf of the State. Further, at trial, after defense counsel objected to the testimony of this unlisted witness, he acknowledged that the testimony of the victim of the previous crimes “would be the only way that [the State’s attorney] would have an opportunity to prove the prior or similar circumstance.” It is also observed that in his argument on appeal defendant makes no claim of surprise by the unlisted witness’ appearance at trial. Under these circumstances, it is apparent that the purpose of OCGA § 17-7-110 was satisfied in that defendant was aware, over two months prior to trial, that the unlisted witness would testify at trial. Consequently, following the analysis traditionally applied by this court under similar circumstances, the State’s failure to include the witness’ name on the list of witnesses was harmless. See Felker v. State, 252 Ga. 351, 377 (12) (314 SE2d 621).

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


author: Deen, Presiding Judge.

text:
    75124.
    KICKERY v. THE STATE.
    (363 SE2d 805)
   Deen, Presiding Judge.

The appellant, Keith Kickery, and his co-defendant, Carl Moore, were jointly tried and convicted of rape. Kickery brings this appeal, contending that the evidence was insufficient to support his conviction and that the trial court improperly admitted evidence of a similar offense allegedly committed by Kickery and Moore.

Late in the evening of July 29, 1986, the sixteen-year-old victim and three friends went to camp out on Lake Lanier near Buford Dam. They had taken along a half gallon bottle of rum, and were drinking and swimming when Kickery and Moore appeared. Kickery and Moore were strangers, but after some initial conversation they were invited to join the foursome in their revelry. In the early morning hours of July 30, 1986, the victim went to her car to sleep in the back seat; eventually, Moore got in the front of the car and appeared to sleep so soundly that two of the victim’s friends, who later went to the car to check on her, could not awaken him. After the two friends checked on the victim, they laid down on a picnic table. (The fourth friend had already passed out on another table.)

According to the victim, Moore got out of the car and came back with Kickery. Kickery grabbed her and held his hand over her mouth, while Moore got the car keys from her and started the car. As Moore drove, Kickery struck her in the face, ripped off her underwear, and repeatedly said “suck my dick.” Moore eventually pulled off on to a dirt road and stopped in a wooded area, where both Kickery and Moore raped the victim. They then drove on 1-85 until they almost reached South Carolina, with Moore initially driving while Kickery kept saying “suck my dick” to the victim and eventually made her perform that act. They then switched drivers, and Moore raped her again and also made her perform fellatio. Moore resumed driving, allowing Kickery to rape her again and attempt anal intercourse.

Moore eventually told the victim that he was going to take her back to her friends, and actually drove her there; as Moore slowed down approaching the turn-off to the campsite, however, Kickery remarked that he wanted to go to Atlanta first, and Moore started to drive off. The victim then opened the door, jumped out of the car, and ran to her friends. (Kickery and Moore drove off, and were apprehended in Tallahassee, Florida the following day.)

The police were called, and the victim was taken to a hospital for treatment for the extensive contusions she suffered when she jumped out of the car. Swabbings of her vaginal and rectal areas subsequently tested positive for the presence of sperm.

Kickery testified at the trial and denied having any sexual relations with the victim. He explained that he and Moore had accepted the victim’s offer of a ride home. Along the way she drove off the road and became hysterical because of the damage to her car. Kickery acknowledged that he may have slapped her to calm her down. Kickery then drove the car, until they reached the fruit stand, behind which he and Moore had been sleeping, and there they all fell asleep in the car. At day break, they drove around some more because the victim was still upset. Kickery eventually drove back to the campsite, and as he slowed down, to his great shock, the victim jumped out of the car and ran towards her friends. Because of this shock, Kickery did not know what to do, so he kept on driving. He and Moore stopped to sleep in a rest area in Florida, where they were arrested on July 31, 1986.

Ten days before the trial, the state filed its notice of intent to present evidence of a similar transaction, viz., an aggravated assault and rape committed by Kickery and Moore on July 4, 1986, in Massachusetts. That victim’s name was clearly indicated in the notice, as well as in the actual Massachusetts indictment that was attached. Although at the time the three-day trial began in this case, the Massachusetts authorities had been unable to locate the seventeen-year-old victim, they eventually found and transported her to Georgia in time to appear at the trial. She was then allowed to testify how, on July 4, 1986, Kickery and Moore had taken her to a wooded area, raped her, and then left her tied, naked to a tree. The victim knew Kickery and Moore before the July 4 rape, and had consented to intercourse with Moore on previous occasions; but on this July incident, she had not consented. She also testified that a few days before this July 4 rape, Kickery had taken her to a wooded area, where he repeatedly told her to “suck his penis” and then raped her. Held:

1. Kickery contends that the witness’ testimony about the July 4 incident in Massachusetts was improperly admitted, because (1) the state failed to include that witness’ name on the list of witnesses, and (2) that Massachusetts incident was not sufficiently similar to the crime charged in this case. We find no merit to either contention.

The purpose of OCGA § 17-7-110, under which the state generally must furnish a list of witnesses upon demand, is to insure that an accused is not confronted at trial with testimony of witnesses whom he has not had an opportunity to interview prior to trial. Bryant v. State, 174 Ga. App. 522 (330 SE2d 743) (1985). In the instant case, the trial court allowed counsel for the defendant to interview the witness before she was called to testify, thus satisfying the purpose of the statute. White v. State, 253 Ga. 106 (317 SE2d 196) (1984). But compare McBride v. State, 185 Ga. App. 271 (363 SE2d 802) (1987).

“Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.” Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986). The similarities between the Massachusetts rape and the offense charged in this case are numerous and obvious, and we have little difficulty concluding that the trial court properly admitted that evidence of the Massachusetts crime.

2. The evidence certainly authorized a rational trier of fact to find Kickery guilty beyond a reasonable doubt of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided December 4, 1987

Jane Kent-Plaginos, for appellant.

Rafe Banks III, District Attorney, T. Russell McClelland, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    75138.
    LONG v. THE STATE.
    (363 SE2d 807)
   Sognier, Judge.

Long appeals from his convictions of driving under the influence of alcohol and failing to maintain lane.

1. Appellant contends the trial court erred by permitting the State to place his character in issue when he had not done so himself, and by allowing the State to impeach appellant by questioning him about prior arrests for driving under the influence of alcohol. Because these enumerations are based on the same testimony, they will be discussed together.

In August 1986, appellant was stopped on 1-285 when an officer observed the car driven by appellant weaving over lane lines. When stopped, the arresting officer noted that appellant had a strong odor of alcohol, his eyes were red and glassy, his speech was slurred and he had difficulty finding his driver’s license in his billfold. Appellant was given several sobriety tests at the scene, including an alcosensor test which indicated appellant had been drinking, and also indicated his blood alcohol content. Therefore, appellant was arrested for driving under the influence of alcohol and was given the implied consent warning. Appellant stated he had taken a test (the alcosensor test) and would not take another breath test as requested by the arresting officer. Appellant was taken to the DeKalb County Police Department and was again given the implied consent warning. He refused to take the test and would not sign the written implied consent form.

Appellant testified in his own behalf, and during cross-examination, in an attempt to explain the reason for refusing to take the breath test as requested, stated that he was not familiar with any of the terms used in the implied consent warning, and that he had never heard them before. The State was then allowed, for purposes of impeachment, to question appellant about two prior DUI arrests in February and November of 1985, when appellant was given a breath test in the first instance and a blood and urine test in the second instance. In response to such questions appellant stated that he did not remember if the arresting officers read him the implied consent warning on those two occasions. Appellant argues that it was error to allow the State to question him about his prior arrests because it placed his character in issue when he had not done so himself, and allowed the State to do indirectly what it could not. do directly. These arguments are without merit.

Decided November 30, 1987

Rehearing denied December 14, 1987.

Edward E. Corriere, Jr., for appellant.

Ralph Bowden, Solicitor, Susan L. Warshauer, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

OCGA § 24-9-82 provides: “A witness may be impeached by disproving the facts testified to by him.” Further, “[a] defendant may be impeached by showing a lack of truthfulness in his testimony, regardless of whether his general character has been placed in issue.” Parker v. State, 169 Ga. App. 557 (1) (313 SE2d 751) (1984). Since appellant testified that he had never heard the terms in the implied consent warning before, it was not error to allow the State to attempt to impeach appellant by questioning him about his prior DUI arrests and the fact that he had previously taken chemical tests to determine his blood alcohol content, because such tests may only be given with an accused’s consent after he has been given the implied consent warning. See OCGA § 40-5-55. Such questions were proper, therefore, regardless of whether appellant had placed his general character in issue. Parker, supra. Accordingly, appellant’s first two enumerations of error are without merit.

2. Since appellant’s motion for a new trial was based on the errors asserted in his first two enumerations of error, it follows that it was not error to deny his motion for a new trial.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    75165.
    ABELMAN v. THE STATE.
    (363 SE2d 764)
   Birdsong, Chief Judge.

The defendant, Perry A. Abelman, appeals his conviction for theft by taking (OCGA § 16-8-2). Defendant was observed eating some type of food from the salad bar of Big Star, Inc., a grocery store. He was placed under observation by store security and thereafter was seen eating fruit from a metal container. The container was provided by the store for the use of patrons purchasing salad bar items. Defendant judicially admitted that he ate two pieces of cantaloupe from the salad bar. However, he testified to his own prior experience in the grocery business and as to his own understanding of food sampling policies of the Big Star as justification for his gastronomical conduct. Held:

1. Appellant enumerates as error the trial court’s denial of his motion for directed verdict. Appellant basically asserts that the State’s amendment of the original accusation in the case at bar was void, because it failed to conform to the statutory requirements of OCGA § 17-7-71 (f), and that the admissible State’s evidence of record is insufficient to support appellant’s conviction on the original accusation. Our review of the transcript and trial record satisfies us that the State met the statutory requirements of OCGA § 17-7-71 and that the amended accusation was not void. We note that appellant made no showing whatever that his ability to present a defense was in any way impeded by the amendment. See Melton v. State, 174 Ga. App. 461 (330 SE2d 398). In fact, appellant expressly declined to request a continuance and proceeded to trial where he presented a vigorous defense. Further, we are satisfied that the State met its burden of proof as to the charge contained in the amended accusation. Our review of the trial transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant next asserts that the trial court erred in failing to give a charge on mistake of fact. We find this assignment of error also to be without merit. Although we are satisfied that appellant’s testimony raised the statutory defense of mistake of fact (OCGA § 16-3-5), the transcript reveals that this defense was not appellant’s sole defense. For example, appellant also appears to have been asserting the defense that the taking of the salad was a mere sampling done with the consent of the owner, Big Star, and as such was lawful. While failure to give a mistake of fact charge may constitute reversible error when that defense is the defendant’s sole defense, Gray v. State, 158 Ga. App. 582 (281 SE2d 328), it is not reversible error when the defendant asserts another defense at trial. Carswell v. State, 171 Ga. App. 455 (320 SE2d 249). Moreover, the trial court did instruct the jury regarding the presumption of innocence, reasonable doubt, credibility of witnesses, the requirement of criminal intent to commit the crime charged, and the statutory definition of the offense of theft by taking. Accordingly, we find that the trial judge’s failure to give a mistake of fact charge did not constitute reversible error in this instance. Hobgood v. State, 162 Ga. App. 435 (291 SE2d 570).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided November 4, 1987

Rehearing denied December 14, 1987

Thomas E. Maddox, Jr., for appellant.

James L. Webb, Solicitor, J. Richard Edwards, Assistant Solicitor, for appellee.


text:
    75675.
    MOORE et al. v. CANDLER GENERAL HOSPITAL et al.
    (363 SE2d 793)
   Deen, Presiding Judge.

On October 30, 1984, Edgar and Helen Moore’s son Moses was born in Candler General Hospital. Dr. McAlpine was his attending pediatrician. The Moores, individually and on behalf of their son, subsequently brought suit against the hospital, its employees, and Dr. McAlpine, alleging that the child’s mental retardation was proximately caused by the negligence of Dr. McAlpine, the hospital, and its employees. Both the hospital and the doctor filed motions for summary judgment, which were granted. The Moores appeal.

Candler General Hospital’s motion was supported by the affidavit of a registered nurse who was in charge of the normal newborn nursery and the deposition of a physician who is a professor of pediatrics at the Medical College of Georgia. The nurse’s deposition stated that she had reviewed the hospital records pertaining to the case and that no act or failure to act on . the part of the hospital or its staff either caused or contributed to the condition of the Moore child, and that, in her opinion, the hospital “exercised that degree of skill and care in furnishing equipment, facilities and services used in similar hospitals with similar resources in the area, and at all times exercised that degree of care, skill and diligence ordinarily possessed and exercised under similar circumstances by hospitals generally.” In the physician’s deposition, he testified that the child was born with a part of his brain missing, a condition known as agenosis of the corpus callosum, which is a birth defect. This condition is caused when a band of fiber between the two sides of the brain fails to develop. Also included in the record is the deposition of a geneticist who testified that this ¡condition is caused by either a genetic defect or a trauma which occurs between the 17th and 27th week of fetal development.

Dr. McAlpine filed an affidavit in support of her motion for summary judgment which states that she rendered medical care to Moses Moore while he was hospitalized in Candler Memorial Hospital and that she continued to give him medical care and treatment during his visits to her office, and that during her care of the child she “exercised the degree of skill, care and learning ordinarily exercised by members of my profession generally at the time in question and used reasonable care and diligence in the exercise of my best judgment and the application of my skills in the treatment of Moses Moore.” No response was filed to the motions.

Decided November 23, 1987

Rehearing denied December 14, 1987

Carlton R. Stewart, for appellants.

I. Gregory Hodges, James L. Elliott, Wendy W. Williamson, for appellees.

1. On April 17, 1987, appellants filed a voluntary notice of dismissal. At the hearing on the motions for summary judgment, appellees learned for the first time of the voluntary dismissal, as the notice had not been served on appellees’ attorneys. Counsel for both parties filed affidavits stating that they had not been served with notice of dismissal and that the trial court’s order of May 14, 1987, held that the voluntary dismissal could not stand. We must agree. A complaint does not stand dismissed until the opposing party is served with written notice of the voluntary dismissal. Patterson v. Professional Resources, 140 Ga. App. 315, 317 (231 SE2d 88) (1976). Accordingly, the motion to dismiss was invalid and of no effect, and the trial court did not err in ruling on the motions for summary judgment.

2. As appellants filed no response to the motions for summary judgment, and the affidavits and depositions of experts which were attached to the motions showed that there were no questions of fact requiring jury resolution, the trial court did not err in granting summary judgment on behalf of the appellees. To avoid the grant of summary judgment in a medical malpractice suit, the plaintiff “must counter a defendant’s expert affidavit with a contrary expert opinion.” Craft v. Wilcox, 180 Ga. App. 372, 375 (348 SE2d 894) (1986). A physician can be his or her own expert witness, and his or her opinion must be countered by the plaintiff with the opinion of an expert. Nettles v. Laws, 172 Ga. App. 241 (322 SE2d 546) (1984). The trial court properly granted summary judgment in favor of the hospital and the physician.

3. Appellee McAlpine’s motion for litigation costs and attorney fees pursuant to OCGA § 9-15-14 is denied for the reasons set forth in Socolow v. Goodman, 184 Ga. App. 103 (360 SE2d 653) (1987).

Judgment affirmed.

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


text:
    75702.
    ASKEW v. THE STATE.
    (363 SE2d 844)
   Deen, Presiding Judge.

Kennie Askew appeals from his convictions of armed robbery and possession of a weapon during the commission of a felony. The evidence showed that a Domino’s Pizza delivery boy was robbed at gunpoint while delivering a pizza to a residence. The victim was ordered to place all of his money in a plastic bag and to drive the long way back to the store. He gave the police a detailed description of the robber, but stated he was too frightened to get a close look at the robber and, as a result, he could not identify anyone from a photographic line-up. A police technician testified that she seized a temporary Georgia Driver’s License in appellant’s name from the house where the robbery occurred. Another officer, a fingerprint expert, testified that she was able to take two palmprints and a fingerprint of appellant’s from items found in the house. A fingerprint match was also made from a pizza box found in the oven. The owner of the house testified that appellant had called her at Lake Jackson the day before the robbery and asked if he could move into the house to take care of it. She denied him permission, but agreed to meet him at the house two days later. When she arrived at the house, after being notified of the robbery, she noticed white spray paint on several doors, windows, and walls inside the house. One wall had “Satin was here” painted on it. When the defendant was asked, on cross-examination, how he spelled “Satan,” he replied, “S-A-T-I-N.” Approximately three weeks after the robbery, Askew was arrested as he was leaving a blood plasma bank. At the police station, he gave a statement admitting to the robbery after signing a waiver of his Miranda rights.

1. A police officer was qualified as an expert after she testified that she had been a watch supervisor in evidence and identification for six years, that she had been trained in two FBI schools in fingerprint classification and analysis, and had attended four seminars on fingerprint comparison. She had lifted approximately 5,000 fingerprints and made 2,000 comparisons as part of the on-the-job experience and had previously testified in court as to comparisons that she had made.

Appellant contends that she should not have been qualified as an expert because she stated twice that she did not consider herself to be an expert. “The question of whether or not a witness is entitled to be designated as an expert addresses itself to the sound discretion of the trial court. [Cit.] The doubt as expressed by the witness did not denigrate her credentials.” Merrill v. State, 130 Ga. App. 745, 753 (204 SE2d 632) (1974). This enumeration is without merit.

2. Appellant contends that because no visual verification of the fingerprint comparisons and identifications was presented at trial the fingerprint evidence was admitted without proper foundation. The expert witness testified that the prints she considered as belonging to the defendant had a minimum of eight points of comparison, although she could not identify the points for the jury without a magnifying glass.

As stated in Division 1 above, the witness was an expert and it was not necessary for the State to introduce magnification of the prints at trial to demonstrate the points of similarity. W. B. S. v. State, 163 Ga. App. 471 (294 SE2d 705) (1982). Appellant’s right of cross-examination was not abridged, as he was free to question the witness as to the tests and procedures utilized in making the comparisons.

3. On cross-examination, Askew testified that he did not touch the pizza box on which his fingerprints were found. The State offered the testimony of Barbara Bower and Dora Tabb in rebuttal. The former had previously testified as a fingerprint expert and the latter was her supervisor.

It has long been established that on rebuttal the State may recall a witness to bring out some additional evidence. On cross-examination, Officer Bower offered to take one of the fingerprint identifications back to the lab and have her supervisor, Officer Tabb, verify the comparison. Defense counsel responded, “That will be fine if you want to do that.” On rebuttal Officer Bower testified that she had returned the print for verification by Officer Tabb. The State then called Officer Tabb who was qualified as an expert in fingerprint analysis and comparison. She verified the prints analyzed by Officer Bower. Officer Tabb was therefore called in rebuttal to show that the defendant’s testimony that he had not handled the pizza box was incorrect. This testimony did not constitute an abuse of the trial court’s discretion and we find no error.

4. It was also not error to permit the Vice-President of Operations for Domino’s Pizza to testify that Askew had been fired from his employment with the company. This testimony was admitted for the limited purpose of showing malice or bias towards the company. Evidence of prior difficulties between the victim and the accused is admissible to illustrate motive, intent, or bent of mind towards the victim. Hales v. State, 250 Ga. 112, 113 (296 SE2d 577) (1982).

5. Appellant incorrectly alleges that the court below erred in allowing Detective Hesse to be qualified as an expert on victim identification of perpetrators. The transcript shows that the witness was qualified as an expert in police work after she testified that she had been in police work for six and one-half years, had interviewed numerous victims and gave her opinion as to the ability of witnesses to give accurate descriptions of crime perpetrators. “The opinion of experts, on matters within their area of expertise, is admissible . . . especially when the expert has himself observed the facts and gives his opinion based upon his own observations. [Cits.]” Erwin v. Gold Kist, 146 Ga. App. 372, 373 (246 SE2d 404) (1978).

Decided December 3, 1987

Rehearing denied December 14, 1987.

John A. Pickens, for appellant.

Robert E. Wilson, District Attorney, Thomas Morgan, Helen A. Pryles, Assistant District Attorneys, for appellee.

6. As appellant has not supported enumerations 6 and 7 by argument or citation of authority, they are deemed to be abandoned. Carey Canada v. Hinely, 181 Ga. App. 364 (8) (352 SE2d 398) (1986).

7. Appellant claims that the case was based wholly upon circumstantial evidence and the verdict cannot stand as the evidence fails to exclude every other reasonable hypothesis save the guilt of the accused.

We must disagree with this contention. The State introduced a two-page statement given by appellant shortly after his arrest which was a full confession of the armed robbery. Extensive evidence of fingerprint comparison and identification was presented which linked him to the crime scene. We therefore find that there was substantial evidence of appellant’s guilt presented to the jury and, based on this evidence, a rational trier of fact could have found him guilty beyond a reasonable doubt.

Judgment affirmed.

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