text:
    77853.
    MOBLEY v. THE STATE.
    (380 SE2d 290)
   Carley, Chief Judge.

Appellant was tried before a jury and convicted of possession of marijuana and possession of a firearm by a convicted felon. He appeals from the judgments of conviction and sentences entered on the jury’s guilty verdicts.

1. The evidence adduced at trial showed, that appellant resided in a house that he shared only with his wife and their small child. Acting pursuant to a search warrant, police officer's discovered marijuana in various locations throughout appellant’s house. Five bags were found in a hutch in the dining room. In the. bedroom, another bag and a bottle containing marijuana were found. In addition, three bottles of marijuana seeds were found in the refrigerator and another bottle of seeds was discovered in the bedroom: Two'of. the four bottles of seeds bore a label with appellant’s name. The officers, also found rolling paper, a cigarette rolling machine and a guide for growing marijuana. Under the mattress in the bedroom, four handguns were found, including a loaded .38 caliber pistol. ‘ , .

On this evidence, appellant, who wais previously convicted of selling marijuana in 1976, enumerates as, error the denial of his motion for a directed verdict of acquittal. He relies upon Smith v. State, 180 Ga. App. 657 (350 SE2d 302) (1986). In Smith v. State, supra at 658, this court held that “it cannot be presumed that appellant, as owner and head of the household, owned or. possessed the [contraband] found therein. Since there is no other evidence to show that appellant owned or possessed the [contraband], the evidence is not sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].”

In Knighton v. State, 248 Ga. 199, 200 (2) (282 SE2d 102) (1981), the Supreme Court held “that a permissive, or rebuttable, presumption that contraband found in a house belongs to the husband by virtue of his statutory status [under former OCGA § 19-3-8] as head of the household cannot withstand due-process scrutiny. ... In other words, the fact that the husband has been declared by statute to be the head of the household does not render it ‘more likely than not’ that he is the possessor of contraband found therein. [Cit.]” (Emphasis supplied.) It is clear, however, that the holding in Knighton is not so broad as to render unconstitutional any and all rebuttable presumptions regarding the possession of contraband. “The following is an example of a rebuttable presumption, concerning the possession of contraband, which does pass constitutional muster: Ladies and gentlemen of the jury, I charge you that if you find that a person owns or is the lessee of a house or premises, you will be permitted, but not required, to presume that such person is in possession of the entire premises and all the property thereon or therein. However, this is a rebuttable presumption and may be overcome by evidence in the case that others had access to the premises. Whether or not this presumption is drawn from proof that a person is the owner or lessee of a house or premises, and whether or not the presumption once it is drawn has been overcome by proof that others had access to the premises, are questions for the jury alone. I further charge you, in that connection, that if you find that the house or premises were used by others, with the defendant, such evidence would not alone authorize a conviction, but such a fact, if it is a fact, should be considered by the jury together with all the evidence in the case in passing upon the guilt or innocence of the defendant.” (Emphasis supplied.) Knighton v. State, supra at 200 (2), fn. 1. Thus, notwithstanding the unconstitutionality of a rebuttable presumption of possession as against a husband, there is a viable rebuttable presumption of possession, without regard to gender or marital status, as against the owner or lessee of the premises where the contraband is found. It follows that, insofar as Smith v. State, supra at 657, holds that “ownership of the premises does not raise a presumption that the owner possessed all property contained therein[,]” it is in conflict with controlling Supreme Court authority and, accordingly, that decision is hereby overruled. (Em.phasis supplied.)

Although the evidence in the present case does show that appellant is a husband, it also shows he is the owner or lessee of the premises where the drugs and the firearms were found. Based upon this evidence, the jury was accordingly “permitted, but not required, to presume that [he was] in possession of the entire premises and all the property thereon or therein[,]” including the drugs and firearms. Knighton v. State, supra at 200 (2), fn. 1. Appellant’s wife was the only other adult who was shown to have access to the premises. It is clear, however, that the evidence that appellant’s wife had access to the premises does not demand a finding that the presumption as against appellant had been rebutted. The presumption as against the owner or lessee is only rebutted by evidence that “persons ‘other than the defendant and members of his immediate household’ had equal opportunity to commit the crime. [Cits.]” (Emphasis in original.) Allums v. State, 161 Ga. App. 842, 845 (288 SE2d 783) (1982). Since appellant’s wife was a member of appellant’s immediate household, it follows that evidence of her access would not be sufficient to rebut, as a matter of law, the initial presumption which arose against appellant and that such evidence would not demand appellant’s acquittal under the “equal access” rule. Instead, the totality of the evidence was such as to be inculpatory of appellant’s wife without being exculpatory of appellant because the jury was authorized to find that they had shared non-exclusive and joint possession of the drugs and the firearms was authorized. See generally Luke v. State, 178 Ga. App. 614, 615 (1) (344 SE2d 452) (1986); Barnes v. State, 175 Ga. App. 621 (334 SE2d 205) (1985); McLeod v. State, 170 Ga. App. 415, 417 (3) (317 SE2d 253) (1984); Kenerleber v. State, 137 Ga. App. 618 (224 SE2d 476) (1976). “As in Prescott v. State, 164 Ga. App. 671, 672 (1) (297 SE2d 362) (1982), so here: ‘Appellant made no affirmative showing . . . that anyone other than himself and his wife had had actual access to the [premises] during several days or weeks prior to the discovery of the [drugs and firearms].’ ” (Emphasis supplied.) Barnes v. State, supra at 626 (1).

There is no requirement that the State must in every case prove that contraband was in the exclusive possession of one who is otherwise shown to be the owner or lessee of the premises. While evidence that the defendant-owner or lessee shared the premises with another does not demand a conviction, it may nevertheless authorize the jury, as the trior of fact, to find that the defendant was in at least joint possession of the contraband. In the present case, the presumption that arose against appellant as the owner or lessee of the premises was not rebutted as a matter of law and “[t]he jury was authorized to find that appellant had at least joint possession of the [drugs and the firearms]. [Cits.]” Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986). As to both of appellant’s convictions, the trial court correctly denied appellant’s motion for a directed verdict of acquittal.

2. The trial court sentenced appellant for felony possession of marijuana. See OCGA § 16-13-30 (j) (2). Appellant enumerates his sentence as error, urging that he should have been sentenced for misdemeanor possession of one ounce or less of marijuana. See OCGA § 16-13-2 (b).

The evidence clearly authorized a finding that appellant was in possession of more than one ounce of marijuana. However, even if the evidence in the present case had demanded a finding that appellant was in possession of less than one ounce of marijuana, his applicable sentence would nevertheless be for the commission of a felony. Only a “person [who] would have qualified for the conditional discharge provided [in OCGA § 16-13-2 (a)]” is entitled to consideration for misdemeanor sentencing pursuant to OCGA § 16-3-2 (b). Appellant is clearly not a person who would otherwise have qualified for the conditional discharge in that he has “previously been convicted of [selling marijuana, an] offense under Article 2 or Article 3 of [Chapter 13]. . . .” OCGA § 16-13-2 (a). Accordingly, appellant’s prior conviction for selling marijuana renders OCGA § 16-13-2 inapplicable and he was properly sentenced for a felony pursuant to OCGA § 16-13-30 (j) (2).

3. The affidavit supporting the issuance of the search warrant was based upon information supplied by a confidential informant. The trial court’s refusal to conduct an in-camera determination as to the veracity of the confidential informant is enumerated as error. However, appellant made no prima facie showing for the necessity of such a determination. See generally State v. Mason, 181 Ga. App. 806, 812 (4) (353 SE2d 915) (1987). According to the affidavit, the confidential informant had seen marijuana in appellant’s residence within the preceding 36 hours. The credibility of this information was in no way compromised by the fact that appellant was himself away from his residence until the late afternoon of the day before the search warrant was sought.

4. Appellant’s remaining enumerations relate to the trial court’s jury instructions. These enumerations have been considered and found to be without merit.

Judgments affirmed.

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

Deen, Presiding Judge,

dissenting.

I agree with the majority opinion that the appellant’s conviction for possession of marijuana should be affirmed, as there was evidence, viz., the pill bottles bearing his name, connecting him to the marijuana. With regard to the conviction for possession of a firearm, however, there is no other evidence connecting him to the firearm, and under Smith v. State, 180 Ga. App. 657 (350 SE2d 302) (1986), that conviction cannot stand.

This court in Smith did not overlook the Supreme Court decision of Knighton v. State, 248 Ga. 199 (282 SE2d 102) (1981), as one is tacitly led to believe by the majority opinion in this case. Rather, this court properly applied the Knighton rule and correctly reversed the conviction in that case.

The majority opinion relies not upon the holding in Knighton, but upon a footnote, for the proposition that a rebuttable presumption of possession may arise from the fact of ownership or tenancy of premises. That same footnote, however, clearly states that the mere fact of ownership or tenancy of premises is not enough to support a conviction, if those premises are also used by others. That is precisely the situation in the instant case. Even under the Knighton footnote rule, there must be some other evidence connecting the defendant-owner or occupier to the subject matter of the offense. This court properly so held in Smith v. State, supra, following Knighton; it is the majority opinion, and not the court in Smith, that fails to follow Knighton.

Decided February 24, 1989

Rehearing denied March 14, 1989

Richard D. Phillips, for appellant.

Glenn Thomas, Jr., District Attorney, Richard H. Taylor, John B. Johnson III, Assistant District Attorneys, for appellee.

The majority opinion further errs in holding that the presumption of possession by the owner/occupier cannot be rebutted by evidence that his or her spouse also occupied the premises. In so holding, the majority opinion relies upon Allums v. State, 161 Ga. App. 842 (288 SE2d 783) (1982), which in turn relied upon Ivey v. State, 226 Ga. 821 (177 SE2d 702) (1970). The rule in Ivey at 824 was that “evidence that [contraband] is located on premises occupied by and under the control of the accused is usually sufficient to sustain a conviction, but that the rule is otherwise where [contraband] is found on premises occupied by the accused and it appears that persons other than the accused and members of his immediate household of which he is the head had equal opportunity with him to commit the crime.” (Emphasis supplied.) Ivey clearly was applying the head of household rule that the Supreme Court ultimately found could not withstand due process scrutiny in Knighton. The majority opinion quotes and emphasizes the language, “members of his immediate household,” and omits altogether the “of which he is the head” part. In so doing, the majority opinion has unwittingly resurrected the unconstitutional sexist distinction put to rest by the Supreme Court in Knighton.

Smith v. State, supra, is a valid and correct application of the Knighton rule. The majority opinion is in error in overruling Smith and in failing to apply it in the instant case. Accordingly, I must respectfully dissent.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77909.
    YOUNG v. THE STATE.
    (380 SE2d 309)
   Pope, Judge.

Defendant Antonio Young was convicted of possession of less than one ounce of marijuana. His three enumerations of error on appeal all challenge the denial of his motion to suppress the evidence of contraband obtained pursuant to the search of his automobile. The record of the hearing on defendant’s motion to suppress shows the trial court’s order was based, inter alia, on the defendant’s abandonment of the vehicle prior to the time it was seized and subsequently searched by officers of the Atlanta narcotics squad.

Decided March 6, 1989

Rehearing denied March 14, 1989

Herbert Shafer, for appellant.

James L. Webb, Solicitor, Norman Miller, Assistant Solicitor, for appellee.

“ ‘Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ (Citations omitted.) United States v. Colbert, 474 F2d 174, 176 (5th Cir. 1973). ‘The issue of abandonment is one of fact to be resolved by the trier of fact, and the finding of fact will not be disturbed on appeal if there is any evidence to support it.’ Williams v. State, 171 Ga. App. 546, 548 (320 SE2d 389) (1984).

“The facts in this case show that appellant abandoned the [automobile] before the search took place. In response to police questions, appellant disclaimed any interest in the [automobile] and walked away from it. The police did not compel this action. Under these circumstances, appellant could entertain no legitimate expectation of privacy in the [automobile] at the time of the search. See, e.g., Williams v. State, supra at (2); Green v. State, 127 Ga. App. 713 (194 SE2d 678) (1972); United States v. Colbert, supra. Compare United States v. Beck, 602 F2d 726 (5th Cir. 1979). Since the record supports the trial court’s finding of abandonment, we find no error in the denial of appellant’s motion to suppress.” Bassett v. State, 181 Ga. App. 597, 599 (353 SE2d 48) (1987), rev’d on other grounds sub nom. Bassett v. Lemacks, 258 Ga. 367 (1988). See also Ramsey v. State, 183 Ga. App. 48 (1) (357 SE2d 869) (1987).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77639.
    MILLER, STEVENSON & STEINICHEN, INC. v. FAYETTE COUNTY et al.
    (380 SE2d 73)
   Pope, Judge.

Plaintiff Miller, Stevenson & Steinichen, Inc., is an engineering firm which entered into a written agreement with defendant Fayette County in 1976 for consulting services in regard to county water system improvements. In 1980, plaintiff entered into a separate agreement for engineering services for a particular water reservoir project known as the Lake McIntosh project. The county subsequently became dissatisfied with plaintiff’s services and members of the county commission called a meeting with two of plaintiff’s corporate officers to discuss the termination of the two agreements. The following day, on September 3, 1981, representatives of the plaintiff and defendant county met again, engaged in negotiations and ultimately executed release agreements for each of the two contracts. Pursuant to one release, plaintiff was paid $202,151.22 in satisfaction of all claims against the county under the Lake McIntosh project agreement. Pursuant to the other release, plaintiff was paid $2,800 in satisfaction of all claims under the consulting service agreement. Both releases recite that the two officers who executed the agreement on behalf of the plaintiff read the release in its entirety and executed the release “freely and voluntarily without the interference, duress or coercion of anyone whomsoever . . . .”

On August 10, 1982, almost one year after the releases were executed, plaintiff filed suit against the county and other defendants. Plaintiff’s sole claim against defendant county is that the county breached the Lake McIntosh contract. Plaintiff alleges in the complaint that the release executed in regard to the Lake McIntosh contract was not made freely or voluntarily but was the product of duress by the county. The trial court granted the county’s motion for summary judgment and, although plaintiff’s claims against the other defendants remain, final judgment was entered in favor of defendant county. Plaintiff appeals.

1. Plaintiff does not contend that the terms of the Lake McIntosh contract were not fully executed. Therefore, the release, if valid, would act as an accord and satisfaction of the contract. The controlling issue on appeal is whether the evidence creates an issue whereby the jury could find the release to be void because, as plaintiff alleges, it was entered into under duress.

Duress is defined as “imprisonment, threats, or other acts, by which the free will of the party is restrained. . . .” OCGA § 13-5-6. The only act by which plaintiff alleges it was restrained is that defendant county took advantage of plaintiff’s financial distress to insist that plaintiff accept payment of the compromise settlement. Plaintiff claims that representatives of the county conveyed the message, directly or indirectly, that payment due under the contract would not be paid unless plaintiff agreed to the settlement. Because of plaintiff’s financial condition, plaintiff’s officers found it necessary to agree to the settlement rather than pursue plaintiff’s legal rights under the contract.

Decided March 1, 1989

Rehearing denied March 15, 1989

Thomas J. McHugh, Jr., for appellant.

“While we are not unsympathetic to [plaintiff’s] difficult bargaining position, we cannot say that [defendant’s] conduct or threats were such to induce [plaintiff] to act contrary to [its] free will or to coerce [plaintiff] ‘to pursue a different course from that which [its] own judgment at that time dictated as the best for [its] own interests.’ Candler v. Byfield, 160 Ga. 732, 738 (129 SE 57) (1925). One may ‘not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.’ 17 CJS 944, § 168.” (Indention omitted.) Tidwell v. Critz, 248 Ga. 201, 204 (282 SE2d 104) (1981). See also Woods v. Wright, 163 Ga. App. 124 (292 SE2d 545) (1982). The evidence contained in the record creates no issue of fact as to whether the release is voidable but shows, as a matter of law, that the executed release constitutes an accord and satisfaction of the Lake McIntosh contract. Thus, summary judgment was properly granted to defendant county. See Mobley v. Fulton Roofing Co., 173 Ga. App. 563 (1) (327 SE2d 540) (1985).

2. We reject plaintiff’s argument that summary judgment should be reversed because the court failed to consider two depositions which, plaintiff claims, were not filed until after the date summary judgment was granted. First, we note conflicting evidence in the record as to whether the two depositions in question were filed before or after summary judgment was granted. Even if the depositions were unavailable for the court’s consideration, plaintiff has failed to show that this additional evidence raises a genuine issue of material fact. Absent such a showing, any error in failing to consider the evidence is harmless. See Miller Grading Contractors v. Ga. Fed. Savings &c. Assn., 247 Ga. 730 (3) (279 SE2d 442) (1981); Murphy v. First Nat. Bank., 182 Ga. App. 788 (5) (357 SE2d 266) (1987).

3. Because we find summary judgment was properly granted, it is not necessary for us to address plaintiff’s remaining enumerations of error.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

M. Scott Barksdale, Pat Fox, for appellees.


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

text:
    77746.
    BALKE et al. v. RED ROOF COLLEGE PARK COMPANY et al.
    (380 SE2d 61)
   Carley, Chief Judge.

Appellant-plaintiff Marion Balke was injured while she was a guest at the motel facility owned by appellee-defendant Red Roof College Park Company (Red Roof). Appellee Red Roofs motel is adjacent to a Holiday Inn and the parking lots of the two motels are separated only by a landscaped median. At the times relevant to this appeal, there was no designated and maintained walkway over the median, only a worn footpath. Having decided to eat at the Holiday Inn, appellant Mrs. Balke used the worn footpath to cross over the median which separated the two motels. She took the same route on her return trip. While navigating the footpath on this occasion, however, she tripped on a metal stake which was protruding from the ground approximately two inches. She fell and was injured.

Appellant Mrs. Balke brought suit, alleging that appellee Red Roof had negligently breached the duty to keep its premises safe for invitees. Her husband, appellant-plaintiff Harry Balke, also filed suit, seeking to recover for loss of consortium. Subsequently, appellants amended their complaints to add appellee-defendant Witherington Landscaping Company (Witherington) as a party to the action. Witherington is the company with whom appellee Red Roof had contracted for the landscaping of the median and appellants alleged that, in its performance of that contract, appellee Witherington had been negligent in its use and placement of the metal stake. During the discovery process, it was determined that the metal stake which had allegedly caused appellant Mrs. Balke to fall was actually located on the Holiday Inn property and, based on this evidence, appellee Red Roof moved for summary judgment. Appellee Witherington also moved for summary judgment, conceding, for the purposes of its motion, that it had placed the metal stake in the median as a guy wire anchor for the trees, but urging that it had not been negligent in doing so. The trial court granted summary judgment in favor of both appellees. It is from the trial court’s order granting appellees’ motions for summary judgment that appellants bring this appeal.

1. The undisputed evidence of record shows that appellant Mrs. Balke did not fall on appellee Red Roof’s property and that appellee Witherington was acting as appellee Red Roof’s independent contractor if and when it placed the metal stake on the adjacent Holiday Inn property. Construing this evidence most strongly against appellee Red Roof, as the movant, no genuine issue of material fact remains as to its liability to appellants. “The owner [of property], having accepted the work on his own property after its completion by the independent contractor, is liable for defects which the contractor caused to the property and which the owner could have discovered and remedied by the use of ordinary care. This principle, however, will not cover defective conditions caused by such contractor on the premises of third persons, although such defective conditions were created by such contractor during the course of the work or repairs on the owner’s property. If a defective condition is created by such independent contractor, the owner, by accepting the work done on his own premises, does not thereby ratify a tortious act committed elsewhere.” Goldman v. Clisby, 62 Ga. App. 516, 518-519 (8 SE2d 701) (1940). See also Reed v. Batson-Cook Co., 122 Ga. App. 803 (178 SE2d 728) (1970). The trial court correctly granted summary judgment in favor of appellee Red Roof.

2. Appellants enumerate as error the trial court’s grant of summary judgment in favor of appellee Witherington, urging that a genuine issue of material fact remains as to the reasonable foreseeability that the use and the placement of the metal stake in the median would create a hazardous condition for pedestrians.

“ [I]n this state negligence, to be actionable, carries with it the concept of foreseeability. [Cits.] That is, it must appear that the alleged negligent condition was such as to put an ordinarily prudent person on notice that some injury might result therefrom. [Cit.]” Georgia Power Co. v. Carden, 128 Ga. App. 347, 349-350 (196 SE2d 477) (1973), aff’d 231 Ga. 456 (202 SE2d 55) (1973). Thus, use of a metal stake may be actionable if, under the evidence, it was foreseeable that its use and placement would create an unreasonable risk of injury. See International Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228) (1986). In support of its motion for summary judgment, appellee Witherington submitted the affidavit of its president, wherein he swore that “[t]here were no designated or anticipated walkways, on the plans presented to m[e] by Red Roof, in the area to be landscaped between the parking lots.” Accordingly, at the time that appellee Witherington placed the metal stake on the median, it was not anticipated that the median would be used by pedestrians and the worn pathway over the median apparently developed as the result of pedestrian use only after the landscaping work had been completed. Thus, the metal stake was not originally placed so as to create an unreasonable risk of injury to pedestrians and, assuming that it did subsequently become dangerous to pedestrians, it was solely as the result of events over which appellee Witherington had no control. Compare International Paper Realty Co. v. Bethune, 177 Ga. App. 330 (339 SE2d 296) (1985), aff’d 256 Ga. 54, supra (wherein there was no evidence to negate the foreseeability that the placement of an iron surveying pin would create an unreasonable risk of injury to those using the adjacent public land.) This evidence was sufficient to shift the burden to appellants to produce evidence showing that the use of the median as a walkway by pedestrians was foreseeable to appellee Witherington. A review of the record discloses, however, no such evidence. “While the moving party on a motion for summary judgment has the burden of establishing the non-existence of any material fact and all doubts are resolved in favor of the party opposing the motion, [(cit.)], ‘ “(t)he burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time or suffer a judgment against him. . . [Cit.]’ [Cit.]” (Emphasis in original.) Herman v. Walsh, 154 Ga. App. 712, 713 (269 SE2d 535) (1980). “ ‘A defendant who has cast upon a plaintiff the burden of responding with evidence to create or preserve a genuine issue of fact is entitled to prevail by summary judgment in the absence of any rebuttal evidence. [Cits.]’ [Cits.]” Bethune v. Leake, 177 Ga. App., supra at 330 (1). The trial court correctly granted summary judgment in favor of appellee Witherington.

3. “Appellant[s] predicate an enumeration of error upon [appellee Witherington’s] failure to comply with that portion of Rule 6.5 of the Uniform Superior Court Rules which provides that ‘there shall be annexed to the notice of motion (for summary judgment) a separate, short and concise statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried.’ The record shows that [appellee Witherington’s] motion itself contained a clear and concise statement of the relevant contentions. Accordingly, the ‘failure to file a separate pleading resulted in no confusion or disadvantage to (appellants) in defending the motion.’ [Cit.] This enumeration of error is without merit.” McKnight v. Golden Isles Marina, 186 Ga. App. 228 (1) (366 SE2d 830) (1988).

4. Appellants’ remaining enumeration has been considered and found to be without merit.

Judgments affirmed.

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

Deen, Presiding Judge,

dissenting.

The majority opinion affirms the grant of summary judgment for the appellee motel on the basis that the appellant was injured on property actually owned by another entity, and for the appellee landscaper on the basis that there was no evidence that the median would have any pedestrian traffic. However, the contract between the two appellees specifically provided that the landscaper would “restrict traffic from lawn areas until grass is established. Erect signs and barriers if required.” That evidence was sufficient to create a jury question on the issue of foreseeability of pedestrian traffic; the parties had obviously contemplated such.

Decided February 22, 1989

Rehearing denied March 15, 1989

Fortson & White, A. Jack Hinton, Douglas R. Powell, for appellants.

Smith, Gambrell & Russell, David A. Handley, for appellees.

The fact that another entity actually owned the median where the appellant fell and sustained her injury does not absolutely absolve the appellee motel from every possibility of liability. “[A]n owner or occupier of land has a duty under OCGA § 51-3-1 with regard to the approach to his premises circumscribed by his right in the approach. If his right in the approach is the fee then the duty under OCGA § 51-3-1 is the exercise of due care by one who has the rights of an owner of a fee. He has the widest latitude in the use of the approach and must exercise due care within that framework to keep the approach safe. If his right in the approach is an easement his duty is to use due care toward his invitees in the exercise of his rights under the easement. He has a more limited framework than the owner of a fee. His duty does not require him to do things not permitted under the easement. If the approach is a public way his duty under OCGA § 51-3-1 is to exercise due care within the confines of his right in the public way. His rights in the public way may be quite limited but nonetheless exist.” Todd v. F. W. Woolworth Co., 258 Ga. 194, 196 (366 SE2d 674) (1988).

The evidence supported a finding that the appellee motel utilized the median as an approach, and benefited from that use. Its right in the approach may not have reached the level of easement, but that was not necessary under Todd v. F. W. Woolworth Co., supra. The trial court evidently concluded otherwise, and for that reason granting summary judgment was inappropriate.

Accordingly, I must respectfully dissent.


author: Banke, Presiding Judge.

text:
    A89A0105.
    CURDE v. MATSON.
    (380 SE2d 71)
   Banke, Presiding Judge.

The appellee petitioned to adopt his wife’s three minor children by a previous marriage. The mother consented to the adoption, but the appellant, who is the biological father of the children, did not. The superior court nevertheless granted the petition, concluding that the appellant had failed significantly during the year immediately prior to the filing of the petition to provide for the care and support of the children as required by law or judicial decree and further concluding that the adoption was in the best interests of the children. The appellant contends on appeal that these findings were not supported by clear and convincing evidence. Held:

1. Pursuant to OCGA § 19-8-6 (b), which is applicable only to adoption proceedings brought by a stepparent or relative, “[sjurrender or termination of parental rights, as provided in Code Section 19-8-3, shall not be required as a prerequisite to the filing of a petition for adoption ... in the case of a parent who has failed significantly for a period of one year or longer immediately prior to the filing of the petition for adoption (1) to communicate or to make a bona fide attempt to communicate with the child, or (2) to provide for the care and support of the child as required by law or judicial decree, where the court is of the opinion that the adoption is for the best interests of the child.”

Prior to 1979, the words “without justifiable cause” appeared in this Code section, immediately following the words “failed significantly.” See Ga. L. 1977, pp. 210, 211 (former Code Ann. § 74-405). However, the “without justifiable cause” terminology was deleted by Ga. L. 1979, pp. 1182, 1187, and the words, “where the court is of the opinion that the adoption is for the best interests of the child,” were added at the end of the subsection. Under the current statute, it is clear that a natural parent’s failure to communicate with or provide support for his or her child may be considered “significant” enough to obviate that parent’s objections to an adoption petition brought by a stepparent or relative, even though such failure to communicate or provide support was not “willful,” see Allen v. Helewski, 184 Ga. App. 450 (2) (361 SE2d 711) (1987), and did not amount to an “abandonment” of the child within the contemplation of OCGA § 19-8-6 (a). See In re J. S. J., 180 Ga. App. 873, 874 (350 SE2d 843) (1986). It has been held, however, that the issue of the natural parent’s justification for failing to provide support for the child continues to be relevant under the existing statute, being “subsumed into and resolved in the context of whether the severance of the parental relationship would be in the ‘best interest of the child.’ ” Kirkland v. Lee, 160 Ga. App. 446, 449 (287 SE2d 365) (1981).

2. Much of the appellant’s brief in the present case is devoted to establishing that, contrary to the appellee’s allegations, the evidence did not warrant a finding that he had failed to communicate with the children during the year immediately preceding the filing of the adoption petition. We agree with the appellant on this point, but so did the superior court. We thus turn to the dispositive findings made by the court in this case — i.e., that the appellant had failed significantly to contribute to the support of the children during the year in question and that the adoption was in the best interests of the children. See generally In re J. S. J., supra; In re D. P. T., 176 Ga. App. 409, 410 (1) (336 SE2d 330) (1985).

Decided February 27, 1989

Rehearing denied March 15, 1989

Jolles & Slaby, Richard A. Slaby, for appellant.

Michael C. Eubanks, for appellee.

It is undisputed that the appellant made no child support payments during the year immediately preceeding the filing of the adoption petition. Although he explained that he had been prevented from doing so by a physical disability, he offered no evidence whatever to corroborate this testimony. Moreover, it was shown that within the six-month period immediately prior to the hearing he had in fact been employed for a period of eight consecutive weeks, earning net income of at least $3,000 after the deduction of taxes and expenses, but that he had contributed none of these earnings towards the support of the children. Under the circumstances, we hold that the evidence provided clear and convincing support both for the trial court’s conclusion that the appellant had failed significantly to provide for the care and support of the children during the year prior to the filing of the petition and for the court’s determination that the adoption would be in the best interests of the children. Accord In the Interest of C. D. B., 182 Ga. App. 263 (3) (355 SE2d 759) (1987); Boyd v. Harvey, 173 Ga. App. 581 (1) (327 SE2d 551) (1985).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A0167.
    PARROTT v. THE STATE.
    (380 SE2d 343)
   McMurray, Presiding Judge.

Defendant was indicted for theft by taking (of a motor vehicle). The evidence adduced at a jury trial revealed the following:

Between 6:30 p.m. and 7:00 p.m. on June 19, 1987, the victim parked her 1987 Pontiac Firebird automobile outside the Airport Athletic Club in College Park, Georgia. The victim left her car keys in the ignition switch of her automobile, went inside the athletic club and, about five minutes later, returned to the parking lot and discovered that her automobile was missing. (The victim also left several items of personal property in the missing automobile, including her social security card and her insurance identification card.)

Three days later, defendant was stopped by an Atlanta city police officer while operating a 1987 Pontiac Firebird without a license tag. Defendant gave the officer the victim’s insurance identification card, but defendant failed to produce his driver’s license. Defendant informed the officer that he resided at a nearby house and that he was going home to retrieve his driver’s license. The officer returned the victim’s insurance identification card to defendant, instructed defendant to remain at the scene and, when the officer went to his patrol car to investigate the suspicious automobile, defendant “took off running” and was not apprehended. The officer later discovered that defendant did not reside at the nearby house and that the automobile, which defendant abandoned at the scene, belonged to the victim.

On July 10, 1987, Officer Furman Williford of the College Park Police Department responded to a call at a College Park apartment complex regarding the discovery of a stolen automobile. Officer Williford met two representatives from National Car Rental System (“National Car Rental”) and they directed Officer Williford to a 1987 Pontiac Firebird automobile that had been stolen from National Car Rental’s parking lot on July 9, 1987. Employees of the apartment complex informed the officer that the stolen automobile belonged to defendant, who then was employed at the apartment complex. Officer Williford inquired of defendant and “at first [defendant] said he was driving [the stolen automobile] and then changed his story and said it was his brother’s car.” Defendant then turned the keys of the stolen automobile over to Officer Williford and was placed under arrest. During a search of National Car Rental’s stolen automobile, the victim’s social security card and her insurance identification card were found. From this and other evidence adduced at trial defendant was found guilty. This appeal followed. Held:

1. In his first enumeration of error, defendant contends the evidence was insufficient to support the verdict because there was no direct evidence linking him to the theft of the victim’s automobile on June 19, 1987. This contention is without merit.

In addition to recent possession of the victim’s stolen motor vehicle, defendant fled after he was stopped by a law enforcement officer while driving the stolen automobile. Further, defendant was in possession of the victim’s insurance identification card shortly after the theft and defendant tendered the victim’s insurance identification card to a police officer and represented to the officer that the card was his own. This evidence, and other evidence showing that defendant had a propensity to unlawfully acquire 1987 Pontiac Firebird automobiles, was sufficient to enable any rational trier of fact to find that defendant was guilty, beyond a reasonable doubt, of theft by taking (of a motor vehicle). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Howard v. State, 186 Ga. App. 7, 8 (366 SE2d 369).

2. Defendant contends in his second enumeration that the trial court improperly denied his challenge to the jury array.

Defendant’s “challenge to the array of the jury panel was properly denied because the challenge was never reduced to writing as required by OCGA § 15-12-162. Smith v. State, 151 Ga. App. 697, 699 (261 SE2d 439) (1979).” Adams v. State, 180 Ga. App. 546, 547 (3) (349 SE2d 789).

3. Next, defendant contends that the trial court improperly allowed the State to introduce evidence showing that he was convicted of theft by receiving National Car Rental’s stolen 1987 Pontiac Fire-bird.

“[0]n the trial of one charged with the commission of a crime, proof of a distinct, independent, and separate offense is not admissible, even though it be a crime of the same sort, unless there is some logical connection between the two from which it can be said that proof of the one tends to establish the other.” Lyles v. State, 215 Ga. 229, 232 (2), 233 (109 SE2d 785). In the case sub judice, articles found in National Car Rental’s stolen automobile were taken from the victim’s automobile. This evidence'was relevant to connect defendant to the theft of the victim’s car. See Loughridge v. State, 181 Ga. 261, 262 (1), 264 (182 SE 12). It is also relevant to show defendant’s course of conduct in acquiring stolen motor vehicles for his personal use and, more specifically, his propensity to acquire automobiles of the same make and model, 1987 Pontiac Firebirds. See Haywood v. State, 256 Ga. 694, 696 (2) (353 SE2d 184). Consequently, the trial court did not err in allowing the State to introduce evidence of defendant’s conviction for theft by receiving of National Car Rental’s stolen automobile.

4. In his final enumeration of error, defendant contends the State failed to prove venue.

In a prosecution for theft by taking (of a motor vehicle), “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” OCGA § 16t8-11. See Davis v. State, 135 Ga. App. 931, 933 (3) (219 SE2d 598). Defendant argues that the State failed to prove venue because no person saw him take the victim’s automobile in the county of his trial. OCGA § 17-2-2 (a). This argument is without merit.

“Venue may be proved by circumstantial evidence. Loftin v. State, 230 Ga. 92, 94 (195 SE2d 402).” McCord v. State, 248 Ga. 765, 766 (285 SE2d 724). As we held in Division 1 of the case sub judice, there was sufficient evidence to enable any rational trier of fact to find defendant guilty, beyond a reasonable doubt, of taking the victim’s automobile without authority in the county of his trial. Adsitt v. State, 248 Ga. 237, 239 (2) (282 SE2d 305).

Decided March 15, 1989.

Robert H. Suttles, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Albert B. Collier, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0201.
    HOGAN v. PEARSON et al.
    (380 SE2d 82)
   Banke, Presiding Judge.

The appellees brought this action to recover damages for the loss of an automobile which they purchased from appellant Hogan but which was later repossessed from them by the owner of an outstanding security interest. Hogan appeals the grant of the appellees’ motion for summary judgment.

Hogan had purchased the vehicle from Clark, a used car dealer, on January 2, 1986. Although Clark had assured Hogan that he would satisfy the outstanding security interest on the vehicle from the proceeds of the sale, he failed to do so, and Hogan never received a certificate of title. Hogan refurbished the vehicle and thereafter contracted to sell it to appellee Franklin for $6,500, agreeing to pay Clark a percentage of the sale proceeds as compensation for preparing the necessary paperwork. On March 27, 1986, Franklin and her mother, appellee Pearson, consummated the transaction, receiving at that time a bill of sale which identified Hogan as the seller. In July of 1986, the automobile was repossessed by a Florida bank which held a security interest in it. Clark paid the appellees $2,995 towards their loss, and the appellees subsequently instituted this lawsuit against Hogan, Clark, and Clark’s dealership to recover the remaining balance. Hogan denied liability, asserting that a personal relationship had developed between Franklin and Clark after the sale and that it could be inferred from the existence of this relationship that the two had conspired to defraud him. Hogan further asserted that his signature on the bill of sale was a forgery. Held:

1. The appellant relies on Grainger v. Jackson, 122 Ga. App. 123 (176 SE2d 279) (1970), to support his contention that a factual dispute exists as to whether Franklin and Clark conspired to defraud him. In that case, we indicated that, under appropriate circumstances, fraud could be inferred based on the relation of the parties. However, the alleged conspirators in the present case did not meet until after the terms of the transaction had been fully negotiated and agreed upon. Under the circumstances, we find no evidentiary support whatever for the fraud allegations.

Decided March 15, 1989.

Alan Mullinax, for appellant.

David L. Holbrook, for appellees.

2. We similarly find no evidentiary support for Hogan’s contention that his signature on the bill of sale was a forgery. Franklin testified during her deposition that she had personally witnessed Hogan sign the bill of sale on the day she delivered her check for $6,500. For his part, Hogan did not deny signing the document but merely testified that the signature did not look like his and that he could not remember signing it. Even construing the evidence against the appellees, as movants, we conclude that Hogan’s equivocal testimony concerning the authenticity of his signature was ineffective under the circumstances to raise a genuine issue of fact as to whether he had signed the bill of sale. Accord Chandler v. Gately, 119 Ga. App. 513, 514 (167 SE2d 697) (1969). Compare Virgil v. Kapplin, 187 Ga. App. 206 (369 SE2d 808) (1988). Furthermore, since Hogan has not denied selling the vehicle to the appellees, it is not apparent why his alleged failure to sign the bill of sale would be of any relevance to the appellees’ claims against him.

3. The record shows that at the time Franklin agreed to purchase the vehicle from Hogan, he told her that the certificate of title was “on its way.” Hogan does not contend that the appellees were aware that the vehicle was encumbered by a security interest, nor is there any evidence which would support such a contention. For this reason, and for the reasons previously stated, we hold that the trial court did not err in granting the appellees’ motion for summary judgment. See Christopher v. McGehee, 124 Ga. App. 310 (183 SE2d 624) (1971).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0524.
    HAMNER v. EMORY UNIVERSITY et al.
    (380 SE2d 83)
   McMurray, Presiding Judge.

This is a slip and fall case arising from injuries sustained by plaintiff Hamner at a food service cafeteria known as Cox Hall on the campus of defendant Emory University. At the time of plaintiff’s injury, Cox Hall was managed by Saga Corporation which has since merged with defendant Marriott Corporation. Plaintiff’s complaint alleges that her slip and fall was caused by defendants’ negligent failure “to maintain a safe premises by allowing water to remain on the floor around a water cooler with no warning of said hazard present.”

Decided March 15, 1989.

Charles W. Wrinkle, for appellant.

Following discovery, defendants moved for summary judgment. Plaintiff appeals from the grant of defendants’ motion for summary judgment. Held:

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [s]he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). In the case sub judice, plaintiff has testified that she was not aware of the water on the floor until after her fall. Therefore, the primary issues presented on appeal involve whether defendants show that they lacked actual or constructive knowledge of the water on the floor. Hill v. Goodyear Tire &c. Co., 187 Ga. App. 890, 891 (371 SE2d 661).

Defendants failed to present any evidence negating their knowledge of the water on the floor. Instead, they argue that the plaintiff cannot establish at trial that the defendants had knowledge of the condition. However, on motion for summary judgment, the burden was upon defendants as movants to show their lack of knowledge of the water on the floor. Until defendants have done so, the allegations of plaintiff’s complaint are not pierced and plaintiff was under no duty to produce evidence in support of her allegations regarding defendants’ knowledge of the water on the floor. Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339 (1) (373 SE2d 252); Hill v. Goodyear Tire &c. Co., 187 Ga. App. 890, 891, supra.

Additionally, we note defendants’ attempt to negate constructive knowledge of the condition, based upon failure to exercise reasonable care in inspecting and keeping the premises in a safe condition, by submitting the affidavit of the supervisor of Cox Hall cafeteria. However, the supervisor’s affidavit proves nothing as it sets forth the customary inspection procedure for Cox Hall, but fails to state whether these procedures were followed on the specific day in question. Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781)

Since the evidence fails to establish defendants’ lack of knowledge of the water on the floor, defendants failed to negate an essential element of plaintiff’s case. The state court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.

Fortson & White, Mark E. Colm, Williston C. White, Long, Weinberg, Ansley & Wheeler, Suzanne Trexler, for appellees.


text:
    77189.
    WATERS v. SPELL et al.
    (380 SE2d 55)
   Pope, Judge.

Plaintiff Lee L. Waters and defendants, the Spells, are owners of adjacent parcels of land. Plaintiff filed a complaint against defendants alleging he had acquired a claim of right to disputed land along the boundary of the two parcels and alleging a specific description of the location of the boundary line which, plaintiff claimed, was established by the acquiescence of the defendant. The case was tried before a jury which returned a verdict in favor of defendants. Plaintiff appeals.

1. Plaintiff first argues defendants’ predecessors in title had acquiesced to the boundary, as claimed by plaintiff, by erecting fences. Evidence was presented that remnants of two old fences were found on the disputed property. One fence appeared to be twenty or thirty years old; the other was even older and was described as “ancient.” Plaintiff presented the testimony of the daughter of his predecessor in title and the daughter of one of defendants’ predecessors in title. The daughter of plaintiff’s predecessor testified that in the 1920’s, when she was a young girl, a wire fence was erected on her father’s side of the boundary line between the two parcels. Both witnesses testified they had recently visited plaintiff’s property and that the old fence was still present. Defendants presented the testimony of the son of a more recent predecessor to their title who testified he and his brother, at the direction of their father, had erected a wire fence in approximately 1957. He testified they knowingly did not follow the course of an older existing fence in order to avoid having to wade through a pond. The witness testified he and his brother were punished by their father for not erecting the fence along the true boundary. Evidence was presented that defendants’ predecessor in title continued to hunt game on the disputed land beyond the newer fence. A licensed surveyor testified he had seen remnants of two different fences, one older than the other, and that they did not run the same course.

“Acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line.” OCGA § 44-4-6. However, the placement of a fence does not necessarily indicate acquiescence in a boundary. Cothran v. Burk, 234 Ga. 460 (216 SE2d 319) (1975). From the evidence the jury could find the more recent fence did not mark the boundary between the two properties and that the defendants and their predecessors did not acquiesce in establishing the fence as the dividing line.

Plaintiff further argues that defendants’ acquiescence to the boundary line, as claimed by plaintiff, is evidenced by the fact that plaintiff cultivated a garden every year since 1968 on the disputed land and that he placed two mobile homes and built a septic tank on the property in 1978. However, testimony was presented that the garden was cultivated by permission from defendants and their predecessor. The fact that permission was granted indicates defendants claimed ownership to the property. Defendants complained to plaintiff that they believed the mobile homes were located on their land some time before 1980. Therefore, the jury could conclude from the evidence that defendants had not acquiesced in establishing the newer fence as the boundary line. Accordingly, we reject plaintiff’s claim that the verdict in favor of defendants is contrary to the evidence.

2. The trial court instructed the jury that it was to decide “whether the boundary line is to be as claimed by the plaintiff or whether it will be as claimed by the defendants.” We reject plaintiff’s assertion that the court erred in failing to instruct the jury it could return a verdict for neither party.

Plaintiff is precluded from complaining of an error in the jury instructions because he failed to raise the objection before the jury returned its verdict. OCGA § 5-5-24 (a). Moreover, the court did not err in instructing the jury that the verdict should be either for the plaintiff or the defendants because no evidence was presented from which the jury could have found the line to be other than one of the two alternative positions taken by the opposing parties. See Thompson v. Colter, 242 Ga. 784 (4) (251 SE2d 526) (1979).

In an action protesting a processioning of a property line, the jury should be instructed that it can find for neither party. See Carter v. Wyatt, 113 Ga. App. 235 (2) (148 SE2d 74) (1966). However, this case did not involve a processioning. Plaintiff’s complaint alleged the establishment of a boundary line by acquiescence of the defendants. The only issue was whether defendants acquiesced in establishing the boundary line along the fence erected by defendant’s predecessor in approximately 1957. The jury was properly instructed to find either for the plaintiff or defendants on this issue. The jury instructions did not misstate the law or erroneously present the issue to be decided. Therefore, contrary to plaintiff’s assertion, this case does not present any error which this court may review despite plaintiff’s failure to raise an objection at trial, pursuant to OCGA § 5-5-24 (c). See generally Central of Ga. R. Co. v. Luther, 128 Ga. App. 178 (1) (196 SE2d 149) (1973).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided January 3, 1989

Rehearing denied March 16, 1989.

Zorn & Caldwell, William A. Zorn, for appellant.

James G. Johnson, Jr., for appellees.


text:
    77838, 77840.
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. CONYERS TOYOTA, INC. (two cases). CONYERS TOYOTA, INC. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY (two cases).
    77839, 77841.
    (380 SE2d 296)
   Banke, Presiding Judge.

Willie J. Redmon, who is not a party to this appeal, sued the appellant, Southern Bell Telephone & Telegraph Company, to recover for injuries which he and his deceased wife sustained when their automobile struck a telephone cable which had fallen across the highway. Southern Bell filed a third-party complaint for contribution against the appellee, Conyers Toyota; and Redmon later amended his complaints to add Conyers Toyota as a defendant. Southern Bell settled with Redmon and proceeded to trial on its contribution claim against Conyers Toyota. The jury returned verdicts in favor of Conyers Toyota, following which Southern Bell appealed, and Conyers Toyota cross-appealed.

The relevant facts do not appear to be in dispute. On January 2, 1982, Conyers Toyota was engaged in ferrying used cars from one car lot to another. One of its employees, Lancaster, obtained permission from his supervisor to ask his roommate, Adams, for assistance in moving the cars. As Adams was attempting to drive away from the premises in his automobile after completion of the car-ferrying activity, he hit and severed a utility pole guy wife, causing the utility pole to fall over and thus precipitating the collision on which Redmon’s suit was predicated.

At the close of Southern Bell’s evidence, Conyers Toyota moved for a directed verdict on the issue of whether Adams had been acting as its agent or employee when he struck the guy wire. The trial court granted the motion, thereby removing the issue of vicarious liability from the jury’s consideration. The case proceeded to the jury, however, on other theories of liability. Held:

1. Southern Bell contends the trial court erred in granting Conyers Toyota’s motion for a directed verdict on the vicarious liability issue because there was evidence from which the jury could have inferred that Adams was in Conyers Toyota’s service at the time of the accident. Conyers Toyota, on the other hand, contends that the evidence established without dispute that any master-servant relationship which might have existed between itself and Adams terminated just prior to the accident.

Ordinarily, the question of whether or not the act of a servant was done in the scope of his employment is for the jury. West Point Pepperell v. Knowles, 132 Ga. App. 253 (1) (a) (208 SE2d 17) (1974). It has repeatedly been held that “ ‘the period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises.’ [Cits.]” United States Cas. Co. v. Russell, 98 Ga. App. 181, 182 (105 SE2d 378) (1958). These holdings are predicated on the rationale that until the employee has actually departed the premises, he has not “started traveling a route of [his] choosing wholly disconnected with [his] employment.” Federal Ins. Co. v. Coram, 95 Ga. App. 622, 624 (98 SE2d 214) (1957). While we recognize that these holdings have arisen in the context of workers’ compensation rather than tort claims, the Georgia Supreme Court has held that “ ‘[i]n determining whether or not the relationship of master and servant prevails in a compensation case, the same principles that exist under the common law obtain.’ [Cit.]” Farmer v. Ryder Truck Lines, 245 Ga. 734, fn. 2 (266 SE2d 922) (1980), cert. denied 499 U. S. 885 (1983).

“ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a).’ [Cit.]” Dependable Equip. &c. Co. v. Nursecare of Atlanta, 184 Ga. App. 136, 137 (361 SE2d 23) (1987). In the present case, the evidence established without dispute that although the car-ferrying activity had been completed, Adams was still in the act of leaving Conyers Toyota’s premises when he struck the guy wire. Under these circumstances, the trial court erred in concluding as a matter of law that he was no longer acting within the scope of his employment at that time.

2. Southern Bell contends that the trial court further erred in refusing its requested jury charges on certain principles of law relating to the vicarious liability issue. Of course, the reason the trial court did not charge on these principles was because it had removed the issue from the jury’s consideration by granting the directed verdict. We are confident that upon any retrial of the case, the relevant principles of law covered by these requested charges will be included in the court’s charge.

3. Southern Bell contends that the trial court erred in refusing to charge the jury that where a party relies upon more than one act of alleged negligence, he need not establish all of the alleged acts to recover. The jury was instructed that Conyers Toyota could be found liable based on three independent acts of negligence. We must agree that, as worded, the charges at issue could possibly have been construed by the jury to mean that Southern Bell could not prevail unless more than one of these alleged acts of negligence had been committed. Upon any retrial of this case, the jury should be instructed in such a way so as to eliminate any confusion on this issue.

4. In its cross-appeal, Conyers Toyota contends that the trial court erred in refusing to direct a verdict in its favor with respect to the theory that it had negligently allowed a dangerous condition to exist on the premises. In the alternative, it contends that the court erred in its instructions to the jury on this issue. With regard to the denial of the motion for directed verdict, the evidence showed that Conyers Toyota was fully aware of the alleged hazard created by the placement of the guy wire and had undertaken to guard against that hazard by taking such precautions as parking cars around the guy wire and warning customers to avoid it. In addition, there was evidence that the company was aware that the wire had been struck by an automobile on its lot prior to the incident in question. Based on this evidence, we hold that the trial court did not err in denying the company’s motion for directed verdict on this theory of liability. See generally McKinney & Co. v. Lawson, 180 Ga. App. 550 (349 SE2d 763) (1986).

5. Nor did the trial court err in charging the following principle of law from the Restatement of the Law, 2d, Torts, § 364 (c): “[A] possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm if the condition is created by a third person without the possessor’s consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.” See Black v. City of Cordele, 163 Ga. App. 322 (293 SE2d 557) (1982) (where Section 364 of the Restatement was relied upon as authority for the principle that although a landowner may have no legal right to remove a hazard created by a third party, he may nevertheless be held liable for failing to exercise reasonable care and diligence to protect others from the danger presented thereby).

6. Contending that it was unaware of the potential hazard created by the guy wire, Conyers Toyota further contends that the trial court erred in charging the following language from Section 366 of the Restatement of the Law, 2d, Torts: “[0]ne who takes possession of land upon which there is an existing structure or other artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for physical harm caused to them by the condition after, but only after[,] the possessor knows or should know of the condition, and he knows or should know that it exists without the consent of those affected by it, and he has failed after a reasonable opportunity to make it safe or otherwise to protect such persons against it.” As we have held that there was evidence from which it could be inferred that Conyers Toyota knew or should have known of the alleged hazard presented by the guy wire, we hold that there was sufficient evidence to authorize the foregoing charge.

Decided February 28, 1989

Rehearing denied March 16, 1989

Kilpatrick & Cody, Matthew H. Patton, Alan R. Perry, Jr., J. Stephen Parker, for appellant.

Fain, Major & Wiley, Donald M. Fain, Richard Kopelman, Mark D. Belcher, for appellee.

7. Conyers Toyota additionally contends that the trial court erred in charging the following language from Section 368 of the Restatement of the Law, 2d, Torts: “A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway, that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to such persons who are traveling on the highway.” The Georgia Supreme Court, in Intl. Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228) (1986), has. approved the principle set forth in this section of the Restatement, holding that a landowner has a duty to guard the safety of those who may be injured by an artificial condition which he has caused to be created or maintained on his land near a public way. However, in the present case it is apparent from the evidence of record that Conyers Toyota did not create or maintain the utility pole and had no power to remove it. Consequently, we conclude that Section 368 of the Restatement was inapplicable to the present situation and that the court erred in charging its provisions.

Judgments reversed.

Birdsong and Beasley, JJ., concur.


text:
    77849.
    In the Interest of M. M.
    (380 SE2d 75)
   Pope, Judge.

A petition of delinquency was filed against appellant alleging that he committed the offenses of aggravated assault upon a police officer and aggravated assault. Following a hearing pursuant to OCGA § 15-11-39, the juvenile court ordered the case transferred to the Superior Court of Fulton County. On appeal, appellant contends “[t]he juvenile court erred in transferring this case to [the] superior court because the court failed to make specific findings of fact based upon reasonable grounds that the child is not amenable to treatment within the juvenile system, ...” and that the trial court’s findings concerning transfer are unsupported by the evidence.

1. “Former Code Ann. § 24A-2501 (a) (3), as originally enacted, did provide that the juvenile court must find ‘that there are reasonable grounds to believe that. . . (ii) the child is not amenable to treatment or rehabilitation through available facilities. . . .’ Ga. L. 1971, pp. 709, 737. In 1978, the statute was amended to delete the ‘non-amenability’ of a juvenile to treatment or rehabilitation as a specific and separate factor entering into the decision to transfer. Ga. L. 1978, p. 1758. The relevant statutory provision now provides only that the juvenile court must, in its discretion, determine whether there are reasonable grounds to believe that: ‘The interests of the child and the community require that the child be placed under legal restraint and the transfer be made. . . .’ OCGA § 15-11-39 (a) (3) (C). However, our Supreme Court has ‘preserved the requirement that the state carry the burden of showing that the child is not amenable to treatment or rehabilitation. (Cit.) In order for an appellate court to determine if the state has carried this burden, “there must be evidence in the record for consideration in the appellate court. The transfer order must realistically reflect why the child is not amenable to treatment as a juvenile. Such decision must be based on evidence and the basis for it clearly reflected in the transfer order itself. . . . (Cit.)” (Cit.) In the instant case the juvenile court’s finding is too general to sustain, since it does not reflect why the child is not amenable to treatment as a juvenile.’ In re E. W., 256 Ga. 681, 682 (353 SE2d 175) (1987).” In the Interest of H. W. A., 182 Ga. App. 188, 189 (354 SE2d 884) (1987). Cf. In the Interest of S. D. H., 187 Ga. App. 743 (371 SE2d 149) (1988) (where this court found the state met the burden of establishing that the child was not amenable to treatment in the juvenile system).

It does not follow, however, that the trial court’s order must be reversed. “ ‘To foreclose the possibility of a transfer on the basis of the record currently before us would be to impose arbitrarily a result which may not be in the public’s interest, without vindicating any right of the accused.’ L. F. K. v. State of Ga., 173 Ga. App. 770, 772 (328 SE2d 394) (1985). ‘Accordingly, we hereby vacate the court’s [findings] . . . and remand this case to the juvenile court for the entry of specific findings and conclusions balancing the amenability factor against the interests of the community in processing the child as an adult.’ In re E. W., supra at 683. If, in compliance with this direction, the juvenile court should determine that it is necessary to conduct a supplementary evidentiary hearing as to appellant’s amenability to treatment, it may do so. See In re E. W., supra at 683, fn. 3. It is not the intent of this Court to retain jurisdiction over this case. After the entry of the new order, the losing party must, at that time, pursue whatever right to secure further appellate review that might be available.” In the Interest of H. W. A., supra at 190.

Decided March 6, 1989

Rehearing denied March 16, 1989

Elliott A. Shoenthal, Brian W. Wertheim, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, George J. Robinson, Jr., Assistant District Attorneys, for appellee.

2. Because we have remanded this case for the purpose of the entry of a new order, including additional findings of fact and the receipt of further evidence, if necessary for compliance with this decision, appellant’s enumeration’ of error concerning the sufficiency of the evidence is premature and need not be considered at this time.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Benham, J., concur.


text:
    A89A0282.
    CAWTHON et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY et al.
    (380 SE2d 327)
   Banke, Presiding Judge.

The Cawthons’ minor son, Robert, was struck and killed by an automobile while attempting to cross a heavily-trafficked highway in anticipation of boarding a school bus being driven by Ms. Margie Humphries. They brought suit against Humphries and her employer, the Baldwin County Board of Education, and also against the individual members of the Board and the Baldwin County School District, seeking to recover damages for the child’s death based on allegations that, in attempting to cross the highway prior to the arrival of the bus, he had been acting on instructions from Humphries to the effect that he was required to be waiting at the stop when the bus arrived. While the wrongful death action was pending, Waco Fire & Casualty Insurance Company, which had issued a policy of motor vehicle accident insurance to the school board providing coverage against liability “resulting from the ownership, maintenance or use” of the school bus in question, filed a declaratory judgment action against all of the parties seeking a determination that the accident was not covered by the policy.

At the time the accident occurred, the bus had not yet reached the stop where the decedent would have boarded it but was either approaching that stop or was still at the preceding stop, less than a tenth of a mile away. In a prior appearance of this case before this court, we concluded that the act of loading the bus could properly be considered a “use” of the vehicle within the contemplation of the policy and further concluded as follows: “[A] question of fact exists whether Humphries, the bus driver, either explicitly ordered the Cawthon children to cross the highway prior to the arrival of the school bus or inadvertently instructed Eunesia Cawthon [the decedent’s sister] in such a manner that the Cawthon children reasonably believed that such was Humphries’ order. If that question is resolved in favor of the contention that Robert was acting pursuant to orders from the bus driver, and if it is found that Robert was acting reasonably pursuant to those orders and within the purview of those orders when he attempted to cross the highway as the school bus was allegedly approaching his stop at a distance less than 528 feet away, then the process of loading the school bus may be considered as having been extended by the bus driver to include Robert’s actions, thus encompassing liability for Robert’s death within the coverage provided by the appellee. However, should it be resolved that Robert was either not acting pursuant to prior crossing instructions from the bus driver or was not acting reasonably within the purview of those orders, then Robert’s death would not have occurred within the normal process of loading.” Cawthon v. Waco Fire & Cas. Ins. Co., 183 Ga. App. 238, 241-2 (358 SE2d 615) (1987).

Upon remand, the case was tried to a jury, which, in response to written questions submitted by the trial court, found that Humphries had not explicitly ordered or instructed the Cawthon children to cross the highway so as to be at the stop before the bus arrived, nor had she inadvertently given them orders or instructions in a manner which caused them to reasonably believe she was ordering or instructing them to cross the highway before the bus arrived. Having made these findings, the jury did not reach the question of whether the decedent had been acting reasonably within the purview of any such orders or instructions given by Humphries. The trial court entered a declaratory judgment in favor of Waco on the basis of this verdict, following which the Cawthons filed a motion for new trial, as well as a motion to dismiss the action for lack of subject-matter jurisdiction. Both motions were denied, and this appeal follows. Held:

1. The Cawthons contend that because the factual and legal positions of the school board and its insurer became identical upon the remand of the case to the trial court following the previous decision of this court, there was no longer any justiciable controversy to be resolved, with the result that the action should have been dismissed for lack of subject-matter jurisdiction. “The rule seems to be clear and well settled in this and other jurisdictions, that failure to name an adverse party or parties with an antagonistic interest is fatal to justiciability in an action for declaratory relief.” Pilgrim v. First Nat. Bank of Rome, 235 Ga. 172, 174 (219 SE2d 135) (1975). That requirement was certainly met in this case prior to the initial decision of this court; and, by virtue of the dispute over coverage which continued to exist between Waco and the Cawthons, it continued to be met subsequent to that decision. Only “where no party to the proceeding has an interest in the controversy adverse to that of the petitioner” is there a complete absence of a justiciable controversy. Id. The trial court did not err in denying the Cawthons’ post-trial motion to dismiss the action for lack of subject-matter jurisdiction.

2. Complaining that as a result of the manner in which the parties were aligned they received only three jury strikes, while the insured and the insurer (who were asserting identical factual and legal positions) received a total of nine, the Cawthons contend that the trial court erred in denying their motion to realign the parties as their true interests appeared. This enumeration of error is also without merit. As Waco has pointed out, it is not at all unusual for co-defendants in a declaratory judgment action to have adverse interests. While “other jurisdictions may grant multiple parties more peremptory strikes than they are ordinarily entitled to when the court determines that the parties’ interests are adverse . . . , the courts in Georgia have specifically declined to adopt this exception to the general rule.” Sheffield v. Lewis, 246 Ga. 19, 22-3 (268 SE2d 615) (1980). Accord King v. Thompkins, 186 Ga. App. 12, 14 (3) (366 SE2d 340) (1988). The federal authorities relied upon by the Cawthons in connection with this enumeration of error are inapposite in that they deal with the issue of whether a plaintiff may assert federal diversity jurisdiction on the basis of the residence of a co-defendant whose ultimate interest in the outcome of the action is the same as the plaintiff’s.

3. The Cawthons contend that the trial court erred in allowing the issue of the decedent’s negligence to be interjected into the case, when the pre-trial order had specified that “[t]he question of the negligence of any person is not relevant to any issue and upon the trial of the case evidence of the same will not be admitted.” Because the jury did not reach the issue of whether the decedent had been acting reasonably in attempting to cross the highway before the bus arrived but confined itself to the issue of whether Humphries had instructed the children to do so or had given instructions which could reasonably have been misinterpreted to that effect, we conclude that any error which may have resulted from allowing the jury to consider the reasonableness of the decedent’s conduct was harmless.

4. The trial court did not err in charging the jury that “facts which are consistent with either of two opposing theories prove nothing.” This was a correct statement of law in the abstract, see, e.g., Ladson Motor Co. v. Croft, 212 Ga. 275, 277 (92 SE2d 103) (1956); and, because the court had previously instructed the jury that the burden was on Waco, as plaintiff, to prove its case by a preponderance of the evidence, the charge would appear to have been favorable to the Cawthons.

Decided March 9, 1989

Rehearing denied March 16, 1989

Waddell, Emerson, George & Buice, Elmarie A. Emerson, Manley F. Brown, Rainwater & Christy, David N. Rainwater, Lamar W. Sizemore, Jr., for appellants.

Drew, Eckl & Farnham, James M. Poe, Gardner & Gardner, Milton F. Gardner, for appellees.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Sognier, Judge.

text:
    A89A0007.
    JONES v. THE STATE.
    (380 SE2d 85)
   Sognier, Judge.

Jerry Jones was convicted of violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute) and he appeals.

Appellant contends the evidence was insufficient to support his conviction, specifically in that the State failed to prove appellant ever had possession of the contraband. At trial Officer Marvin Taylor of the Moultrie Police Department testified that while he was out patrolling an area of high drug activity, he spotted appellant in the company of J. T. Wiley. Having information that Wiley was in possession of drugs, Officer Taylor exited the patrol car and obtained Wiley’s permission to perform a pat down search of his person. No contraband being found on Wiley, Officer Taylor started to walk away when, based on the officer’s knowledge of appellant, he stated to appellant that because he believed Wiley had passed the drugs to appellant, he (Officer Taylor) wanted to pat down appellant. Appellant ran and Officer Taylor pursued him, observing appellant reach into a right pants pocket and pull out what appeared to be a brown plastic bottle, which appellant clamped in his fist. The officer lost sight of appellant for a brief period of time when appellant ran behind an apartment building that fronted 1st Avenue, but when the officer rounded the corner of the building he saw that appellant had already circled the building and was ready to cross 1st Avenue. At that time the backup Officer Taylor had called, arrived and stopped appellant, who was then placed under arrest for disorderly conduct. No drugs or brown plastic bottles were found on appellant. Investigator Chet Powell of the Colquitt County drug squad testified that shortly after appellant was arrested, he and Sergeant Jimmy Jackson followed the route taken by appellant, as detailed by Officer Taylor, and that on the narrow path between the apartment building and the adjacent house, he (Powell) observed fresh scuff marks where someone had abruptly stopped or fallen near the edge of the house. Powell testified he stopped at this point, bent over and discovered a brown prescription type plastic bottle lying under the support of the house, apparently jammed under the edge of the dirt “as if it were shoved in there.” Investigator Powell testified that the bottle’s position looked intentional, as though it had been carefully placed next to the support. Sgt. Jackson testified that the scuff marks were “very fresh” and that “[t]he dirt [on the path] was all done like somebody had slid in there.” The bottle found by the officers was determined to contain 51 pieces of rock cocaine or “crack.”

Decided March 16, 1989.

Short & Fowler, Lester M. Castellow, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Although, as appellant argues, Officer Taylor did not see appellant with the drugs and did not see appellant enter the pathway where the contraband was discovered, viewing the evidence in the light most favorable to the verdict, the jury was authorized to find that the brown bottle Officer Taylor saw in appellant’s hand was the bottle containing the contraband, that appellant had the bottle at the time he ran behind the apartment building, and that appellant hid the contraband under the house and consequently did not have the bottle on his person when he was arrested by police. The evidence set forth was thus sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of violating the Georgia Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 184 Ga. App. 68, 69 (1) (360 SE2d 634) (1987).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0151.
    MILES v. THE STATE.
    (380 SE2d 86)
   Sognier, Judge.

Leon Miles was convicted of a violation of the Georgia Controlled Substances Act, and he filed this appeal.

Appellant enumerates the general grounds. Construed to support the verdict, the evidence adduced at trial revealed that Officer D. M. Brown and Detective W. M. Smart of the narcotics division of the Atlanta Police Department were conducting an undercover drug investigation on October 1, 1987 when they were approached by Edward Bozeman, appellant’s co-defendant, who offered to find them some “reefer” and cocaine. The officers drove Bozeman in their unmarked car a short distance to Bradley Avenue, where they observed appellant and several other men sitting or standing on the sidewalk. Officer Brown testified that as Bozeman alighted from the car and began walking toward this group, appellant walked forward to meet him, they talked briefly, and then appellant walked across the street to the corner of a house about thirty yards away from the car. Officer Brown stated that he then saw appellant bend over and pick up something and hand it to Bozeman. Detective Smart testified that he saw Bozeman receive a small foil packet from appellant and then hand appellant the twenty dollar bill Officer Brown had given to Bozeman to make the cocaine purchase. Bozeman thereafter returned to the car and gave the officers the foil packet, which contained a white powder that proved to be cocaine. Appellant testified that he merely directed Bozeman to the side of the house and indicated to Bozeman another person from whom he could purchase cocaine. During his testimony Bozeman stated that at appellant’s direction he went beside the porch and bought the cocaine from an unidentified girl, but Officer Brown testified that he looked toward the side of the house as they drove off thirty seconds later and saw no one there. Appellant also testified that when he was arrested approximately ten minutes after the sale he had only a ten and two fives in his possession and that another man in the group on the street had the twenty dollar bill.

Although there was a conflict in the evidence between the officers’ version of the events and the testimony given by appellant and Bozeman, assessment of the credibility of witnesses and determination of the weight to be accorded their testimony are the sole province of the jury. Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264) (1988). Viewed in the light most favorable to the verdict, the testimony of the State’s witnesses was sufficient to authorize the jury to conclude that appellant sold the cocaine to Bozeman. See id. Accordingly, we find the evidence sufficient to enable a rational trier of fact to find appellant guilty of the crime charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 16, 1989.

Jonathan J. Wade, Robert H. Alexander III, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Keith L. Lindsay, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A89A0213.
    PARSONS v. THE STATE.
    (380 SE2d 87)
   Carley, Chief Judge.

Police officers observed appellant operating his vehicle in an erratic manner. After stopping appellant, the officers detected a strong odor of alcohol and noticed that appellant’s eyes were bloodshot. Appellant was not, however, placed under formal arrest for driving under the influence. Instead, he was arrested for driving with a suspended license and driving left of the centerline. Appellant was given the implied consent warnings at the scene and then again at the police station. On both occasions, appellant agreed to take a State-administered breath test. The test was conducted 23 minutes after the initial stop and revealed that appellant’s blood alcohol level was .20 grams percent. Appellant did not request an additional test. He was then placed under formal arrest for driving under the influence. After his arrest for driving under the influence, appellant was not again given the implied consent warnings.

At a bench trial, appellant was found guilty of driving under the influence in violation of OCGA § 40-6-39 (a) (4). He appeals from the judgment of conviction and sentence entered on the trial court’s finding of guilt.

Appellant enumerates as error only the denial of his motion to suppress the results of his breath test. The contention is that the implied consent statute requires that the warnings be given after an arrest for driving under the influence. Since appellant was given the warnings prior to his arrest for driving under the influence and was never given the warnings after his arrest for that offense, he urges that the test results should have been suppressed. This interpretation of the implied consent statute was considered and rejected in Davis v. State, 187 Ga. App. 517, 518 (370 SE2d 779) (1988). “Though the officer arrested [appellant] for driving on the wrong side of the roadway [and for driving with a suspended license] rather than for violation of OCGA § 40-6-391, he had reasonable grounds to believe that [appellant] had been driving while under the influence of alcohol. This coupled with the fact that [appellant] was arrested for an offense which arose out of acts committed while apparently driving under the influence of alcohol was sufficient to permit the trooper to implement the provisions of the implied consent statute.” Davis v. State, supra at 519. The trial court correctly denied appellant’s motion to suppress.

Decided March 16, 1989.

Jones, King & King, David H. Jones, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Ann M. Elmore, Lee Perkins, Assistant Solicitors, for appellee.

Judgment affirmed.

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


text:
    A89A0222.
    SIMONS v. EQUITEC PROPERTIES COMPANY.
    (380 SE2d 90)
    Decided March 16, 1989.

      Benjamin P. Erlitz, for appellant.
   Carley, Chief Judge.

On August 5, 1988, appellee-landlord filed a dispossessory action, seeking not only possession of the premises but also past due rent. On August 9, 1988, service was made by tacking and mailing. See OCGA § 44-7-51 (a). On August 15, 1988, appellant-tenant mailed his answer to the clerk’s office. On August 17, 1988, appellant’s answer was received in the clerk’s office and filed. On August 19, 1988, even though no default judgment had yet been entered, appellant filed a “Motion To Set Aside Judgment.” On September 8, 1988, the trial court denied appellant’s “motion to set aside judgment or to open default. ...” Appellant brings this direct appeal from the denial of his motion.

Since no default judgment has ever been entered, it is clear that appellant’s motion can only be construed as a motion to open default. “The law distinguishes between a default, which involves an interlocutory matter, and a default judgment, which represents final judicial action and the vesting of rights. [Cits.]” Attridge v. Maines, 174 Ga. App. 472, 473 (330 SE2d 409) (1985). Appellant has not complied with the interlocutory appeal provisions of OCGA § 5-6-34 (b). Compare A. G. Spanos Dev. v. Caras, 170 Ga. App. 243 (316 SE2d 793) (1984). Accordingly, this court has no jurisdiction and the appeal from the denial of appellant’s motion to open default is dismissed.

Appeal dismissed.

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

McCalla, Raymer, Padrick, Cobb & Nichols, Carol V. Clark, R. Therrese Perrotta, for appellee.


text:
    A89A0312.
    HARRIS v. THE STATE.
    (380 SE2d 345)
   Sognier, Judge.

John Allen Harris was convicted in a nonjury trial of making harassing telephone calls in violation of OCGA § 16-11-39 (4), and he filed this appeal.

Appellant contends in three enumerations of error that the State failed to prove all essential elements of the crime of making harassing telephone calls, and that the evidence as to intent was insufficient. The evidence adduced at trial, which consisted of stipulations by the State and appellant and transcripts of two telephone answering machine tapes, disclosed that on two occasions appellant made between ten and twenty phone calls to his former wife in a one day period. Appellant did not talk to the victim during any of these calls as she was not at home, but instead left messages on her answering machine, and in several of these messages used hostile and profane language. It was stipulated that the victim is the custodial parent of the couple’s son, and that during the time appellant made the calls at issue the victim was withholding visitation and refusing appellant any contact with his son.

OCGA § 16-11-39 (4) provides that a person commits a misdemeanor when he or she “ [telephones another repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another.” Appellant contends that the State failed to prove he telephoned another as required by the statute because the stipulated evidence revealed that he never actually spoke to the victim. We do not agree, as the statute proscribes harassing phone calls “whether or not conversation ensues,” and accordingly we read it to mean that a crime is committed whenever one repeatedly places telephone calls to another person with the specific intent described in the statute. Appellant clearly placed telephone calls to the number he knew to be that of his former wife and left messages addressed to her by name, and thus his lack of direct contact with the victim is immaterial.

We also reject appellant’s argument that there was insufficient proof of the specific intent to harass or annoy required by OCGA § 16-11-39 (4) and charged in the indictment. Although appellant contends his sole motive was to arrange for contact with his son, the trier of fact was authorized to conclude from the number of calls and tenor of the messages left that appellant made the calls with the intent to harass or annoy his former wife. See Constantino v. State, 243 Ga. 595, 598 (1), 600 (4) (255 SE2d 710) (1979). Accordingly, we find the evidence sufficient to authorize the conviction under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 16, 1989.

David J. Walker, for appellant.

John C. Carbo III, Solicitor, Jackie Stanton, Keith Martin, Assistant Solicitors, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0329.
    MUNOZ v. THE STATE.
    (380 SE2d 88)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of one count of burglary and two counts of aggravated assault. He appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds. The evidence adduced at trial, construed most strongly in favor of the guilty verdicts, shows the following: Appellant kicked down the door to a mobile home belonging to his ex-wife. He entered and, while wielding a knife, placed his ex-wife and her visitor in reasonable apprehension of immediately receiving a violent injury. A rational trior of fact could reasonably have found from this evidence proof of appellant’s guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not err in refusing to give a written request to charge on “reckless conduct” as a lesser included offense. See Wigfall v. State, 257 Ga. 585, 587 (3) (361 SE2d 376) (1987); Weaver v. State, 185 Ga. App. 573 (365 SE2d 130) (1988); Riley v. State, 181 Ga. App. 667, 669 (3) (353 SE2d 598) (1987). Compare Bowers v. State, 177 Ga. App. 36 (338 SE2d 457) (1985).

3. The trial court’s refusal to give a written request to charge on criminal trespass as a lesser included offense is enumerated as error. Under the State’s evidence, appellant was guilty of burglary. Appellant did not testify in his own defense. Compare Huffman v. State, 153 Ga. App. 203 (2) (265 SE2d 603) (1980). “ ‘The uncontradicted evidence [thus] showed completion of the greater offense ... so that the charge on the lesser offense was not required. [Cits.]’ [Cits.]” Howard v. State, 182 Ga. App. 403, 404 (2) (355 SE2d 772) (1987).

Decided March 16, 1989.

Kathleen J. Anderson, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

4. The trial court’s refusal to give the following written request to charge is enumerated as error: “The lethal character of the instrument allegedly used in making an assault may be, but need not be, inferred from the nature and extent of the injury, if any, inflicted upon the person allegedly attacked.”

Even assuming that this refused request states a correct abstract principle of law, it was not adjusted to the evidence in this case. “[Tjhere are two essential elements [of the crime of aggravated assault]: one, that an assault, as defined in OCGA § 16-5-20, was committed on the victim, and two, that it was aggravated by either an intention to rob (or murder or rape) or use of a deadly weapon. [Cit.] Attempting to commit a violent injury to a person, or committing an act which places a person in reasonable apprehension of immediately receiving a violent injury, will satisfy OCGA § 16-5-20.” (Emphasis supplied.) King v. State, 178 Ga. App. 343, 344 (1) (343 SE2d 401) (1986). According to the allegations of the indictment in this case, appellant had committed the underlying assaults by violating subsection (a) (2), not subsection (a) (1), of OCGA § 16-5-20. Accordingly, it was the victims’ reasonable apprehension of receipt of a violent injury from appellant’s knife, not appellant’s attempt to commit an actual violent injury to their person, that was relevant. See generally Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981). Since the victims had never actually received a violent injury, the jury’s determination of whether the knife was a deadly weapon would obviously have to be based upon factors other than “the nature and extent of the [victims’] injur [ies]. . . .” The trial court did not err in refusing to give the inapplicable charge.

Judgments affirmed.

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