author: Carley, Judge.

text:
    74626.
    74627.
    COLWELL v. VOYAGER CASUALTY INSURANCE COMPANY. WILKERSON v. VOYAGER CASUALTY INSURANCE COMPANY.
    (363 SE2d 310)
   Carley, Judge.

The respective appellant-plaintiff in each of these companion cases filed suit against the appellee-defendant insurer, seeking to recover no-fault benefits, as well as penalties, attorney’s fees, and punitive damages. Each case has appeared in the appellate courts on prior occasions. See Voyager Cas. Ins. Co. v. Colwell, 166 Ga. App. 17 (303 SE2d 152) (1983), aff’d in part and rev’d in part, 251 Ga. 744 (309 SE2d 617) (1983); Wilkerson v. Voyager Cas. Ins. Co., 171 Ga. App. 834 (321 SE2d 346) (1984). For purposes of the present appeals, there is no dispute that appellants are entitled to a recovery of no-fault benefits and that those benefits have been paid. However, prior to the final resolution of appellants’ entitlement to a recovery of penalties, attorney’s fees, and punitive damages, appellee became insolvent. Upon appellee’s insolvency, appellants moved that the Georgia Insurer’s Insolvency Pool (GIIP) either be added as a party-defendant or be substituted as the party-defendant in the actions. The trial court denied appellants’ motions and they appealed. However, this court dismissed appellants’ appeals for failure to comply with OCGA § 5-6-34. See Colwell v. Voyager Cas. Ins. Co., 178 Ga. App. 42 (342 SE2d 7) (1986). Subsequently, the trial court entered a final order in both cases. Each appellant now appeals, enumerating as error the denial of her motion to add or to substitute the GIIP as a party-defendant. Because the identical issue is raised in both appeals, they are consolidated for appellate disposition in this single opinion.

The issue to be determined is the extent to which the GIIP has an obligation to an insured who has a legal claim for penalties, attorney’s fees and punitive damages pursuant to OCGA § 33-34-6 against his insolvent insurer. “In the event an insurer is determined to be insolvent, the coverage afforded by property and casualty insurance policies issued by such insurer shall, with respect to covered claims, become the obligation of the [GIIP]. , . (Emphasis supplied.) OCGA § 33-36-9. Appellants do not assert a contractual claim for coverage afforded under their policies issued by appellee. Their claims for no-fault benefits under their policies have been paid in full by appellee. Appellants assert only a statutory legal claim for damages against appellee. There is nothing in the language of the relevant statutory provisions to indicate that the remedial legislative intent is other than to provide only those insureds having unsatisfied contractual claims for benefits with a source of recovery other than their insolvent insurers. “The purpose [underlying the creation of the GIIP]' is to provide a remedy for covered claims under property and casualty insurance policies when the insurer has become insolvent and is unable to perform its contractual obligations.” (Emphasis supplied.) OCGA § 33-36-2.

Since appellants seek only damages based upon appellee’s alleged failure to perform its statutory obligations pursuant to OCGA § 33-34-6, to hold that they can proceed against the GIIP on their claims would be to authorize the dissipation of funds which were intended to benefit only those insureds who, entirely unlike appellants, have never even been initially paid those contractual benefits for which they made premium payments and to which they would be entitled under their policies issued by insolvent insurers. Having recovered their contractual claims for benefits, appellants are, insofar as a potential recovery under OCGA § 33-34-6 is concerned, in no better position than any other plaintiff who has a potential legal claim for damages against an insolvent defendant. The fact that appellants are insureds and appellee is an insolvent insurer is not, standing alone, a basis for holding that the GIIP is an alternative source of appellants’ recovery of the statutory damages they seek.

However, appellants point to the amendment of the statute which created the GIIP, whereby the following subsection (G) was added to OCGA § 33-36-3 (2): “A covered claim shall not include any claim or judgment for punitive damages and attorney’s fees associated therewith against any insolvent insurer, its insured, or the [GIIP].” Appellants urge that the addition of this language which specifies that such claims as those made pursuant to OCGA § 33-34-6 are not to be considered as “covered claims” assertable against the GIIP must be construed as effecting a change in the law as it then existed. Thus, appellants contend that such claims under OCGA § 33-34-6 as were asserted prior to the effective date of OCGA § 33-36-3 (2) (G), including their claims against appellee, would antedate the legal “change” and would be enforceable against the GIIP.

“ ‘From the addition of words it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication.’ [Cits.]” C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 356 (254 SE2d 426) (1979). Our previous discussion of the extent to which the GIIP has an obligation to the insureds of an insolvent insurer is based entirely upon an interpretation of statutory provisions which predate the 1985 amendment to add subsection (G) to OCGA § 33-36-3 (2). As indicated in our discussion, under those pre-1985 provisions, it is only contractual claims for benefits under policies issued by an insolvent insurer that “become the obligation of the [GIIP]. . . .” OCGA § 33-36-9. It follows that the effect of amending OCGA § 33-36-3 (2) in 1985 so as to add subsection (G) was merely to make explicit that which the statutory provisions had previously made only implicit. Thus, the result of the enactment of OCGA § 33-36-3 (2) (G) was only to change the clarity with which the statute originally spoke, and not to change the remedy for which the statute was originally enacted. A legal claim for damages under OCGA § 33-34-6 as against an insolvent insurer is not and has never been a potential obligation of the GIIP. It follows that the trial court correctly denied appellants’ motions to add or to substitute the GIIP as a party-defendant.

Decided November 13, 1987.

Kenneth M. Henson, Jr., Millard D. Fuller, for appellants.

William A. Erwin, Wilbur C. Brooks, James T. Budd, for appellee.

Judgments affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    74918.
    JENKINS v. THE STATE.
    (363 SE2d 35)
   Pope, Judge.

Jameson W. Jenkins, Sr. brings this appeal from his conviction and sentence of possession of less than one ounce of marijuana. His sole enumeration cites as error the denial of his motion to suppress the marijuana illegally seized from his person. Held:

On August 14, 1986 an investigator for the Spalding County Sheriff’s Department obtained a warrant to search the premises located at “Pinedale Trailer Park Lot # 9, 4241 Old Atlanta Road, Griffin, Spalding County, Georgia. Trailer to be occupied by Ricky Clark and Barry Bunn.” The warrant authorized the search of the described premises and the persons of “Ricky Clark, Barry Bunn & other persons.” When the warrant was executed on August 15, defendant was in the front yard of the premises along with seven others, including one of the persons named in the warrant; no one was in the trailer at the time. They appeared to be working on an automobile. Defendant and the others were handcuffed and taken inside the trailer where they were searched. The subject marijuana was seized from defendant’s right front pants pocket and he was then placed under arrest. The arresting officer testified that the defendant, who was previously unknown to the officers, was detained and searched solely on the basis of the “other persons” language in the search warrant, “[n]ot because he did or didn’t do anything.”

Defendant contends that the search of his person was without probable cause and was also beyond the scope of OCGA § 17-5-28. “OCGA § 17-5-28 provides that in the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time (1) to protect himself from attack or (2) to prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant. This statute by necessary implication describes the limited circumstances in which the executing officer may search persons not identified in the warrant incident to a legitimate search of premises.” (Citation and punctuation omitted.) Brown v. State, 181 Ga. App. 768, 770 (353 SE2d 572) (1987). “With particular regard to the ‘other persons’ clause in this warrant, we note that this language gives police no authority to search persons other than [Ricky Clark and Barry Bunn] unless such search falls within the ambit of [OCGA § 17-5-28, which] ‘describes the maximum extent to which the particularity of description required by the Fourth Amendment may be encroached upon by the practical necessities of the search environment. Thus, if defendant’s search is to be upheld on the basis of the warrant, the [S]tate must demonstrate that the officer acted under either of the two justifications provided by [OCGA § 17-5-28].’ ” Campbell v. State, 139 Ga. App. 389, 390-391 (228 SE2d 309) (1976), cert. den., 429 U. S. 1083 (1977).

In the affidavit in support of the search warrant, the sheriff’s investigator stated: “Within the past five (5) days I have received information from a reliable confidential informant who tells me that Ricky Clark and Barry Bunn have now within their possession in the described trailer a quantity of marijuana which they are selling. . . . This reliable confidential informant is familiar with marijuana by sight, smell and the different manner in which it is packaged for distribution. This reliable confidential informant tells me that within the past five (5) days that he has been present at the described trailer with Ricky Clark and Barry Bunn, and that while this informant was present he observed Clark and Bunn sell quarter ounces of marijuana to three other person(s) who came to the trailer. This investigator has received information from three (3) other confidential sources within the past six (6) months who have advised that Ricky Clark is a user and dealer of marijuana in the Griffin/Spalding County area. Personal observation of the trailer within the past five (5) days has shown a large amount of traffic come and go from the trailer after staying only a short period of time. This investigator has also observed two known drug dealers come and go from the residence within the past five (5) days. This investigator contacted Mr. Willie Fields who owns the trailer and the property which is to be searched. Mr. Fields advised that the trailer is rented to Ricky Clark, but a[n] unknown white male is also living in the trailer. Mr. Fields further states that he has personally observed a large amount of traffic coming and going from the trailer. A record check on Ricky Clark shows that he has been arrested on November 30, 1975 and on April 15, 1984 and charged each time with violation of the Georgia Controlled Substances Act.”

Decided October 29, 1987

Rehearing denied November 16, 1987.

M. Michael Kendall, for appellant.

John T. Newton, Jr., Solicitor, for appellee.

“In the case before us the officers properly entered under a warrant to search [Ricky Clark and Barry Bunn], their [premises], and any persons present who might reasonably be involved in the crime of possession of illegal drugs. The [premises] had been under surveillance and the police had knowledge that drugs were . . . sold there, according to the affidavit. The persons present were [all standing together in the small yard of the premises]. The drugs involved . . . might easily be passed from person to person. Under these circumstances ... we hold the search not unreasonable under Fourth Amendment standards, and authorized by the terms of the warrant. It is well to point out that the same result would not obtain under all circumstances. . . . [H]ad there been no reason to believe the [premises were] frequented by persons illegally purchasing drugs, the search could not be justified as a mere routine procedure. . . . The evidence here ... is sufficient to support the search under the warrant charging a possessory offense and in accordance with [OCGA § 17-5-28 (2).]” (Indention omitted.) Willis v. State, 122 Ga. App. 455, 458-459 (177 SE2d 487) (1970). See Clark v. State, 184 Ga. App. 380 (3) (361 SE2d 682) (1987), and cits.; cf. Wyatt v. State, 151 Ga. App. 207 (1b) (259 SE2d 199) (1979).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Deen, Presiding Judge.

text:
    75134.
    In re OLLIFF.
    (363 SE2d 158)
   Deen, Presiding Judge.

Mattie Olliff brings this appeal from the trial court’s denial of her application for expenses and attorney fees filed pursuant to OCGA § 29-5-13.

The appellant, now 89 years old, was 81 when her husband died. He alone managed their property, business and all other financial arrangements. Upon his death, Mattie Olliff had no comprehension of the extent and value of the estate, nor, by her own admission, was she capable of managing her own affairs. Mr. Olliff died intestate and Larry Brown, a long-time friend of the Olliffs, was appointed co-administrator of the estate, and Mattie granted him an unlimited power of attorney over her property and assets. Once he was given the power of attorney, Brown had many of her assets transferred into his name alone or into joint accounts. In April of 1985, accountants hired by Mattie’s relatives discovered that over $590,000 was deposited and disbursed through Brown’s account with the Sea Island Bank, an amount vastly disproportionate to the amount of reported income earned by Brown during the period of time he handled Mattie’s affairs.

Believing that Brown was converting Mattie’s assets for his own benefit and fearing that Mattie’s depleted finances would render her incapable of supporting herself, relatives filed a petition for guardianship questioning her competence in handling her own affairs on March 23, 1984, in the Bulloch County Probate Court. The court found no evidence of incompetence and dismissed the petition. The appellees then appealed to the superior court. The jury verdict found that Mattie did not need a guardian. Subsequently, Mattie filed an application for expenses and attorney fees in which she claimed that she incurred nearly $20,000 in expenses and $97,000 in attorney fees defending herself against the petition for guardianship. The 'court found that no evidence was presented at the hearing on the application and denied it. The sole enumeration of error on appeal goes to the denial of her application. Held:

“The general rule is that expenses of litigation, including [attorney] fees, are not recoverable by a litigant against the opposite party except in those cases which are specifically provided for by contract or by statute.” Hickman v. Frazier, 128 Ga. App. 552 (1) (197 SE2d 441) (1973); e.g., Harrison v. Harrison, 208 Ga. 70 (1) (65 SE2d 173) (1951); Kilmark v. Bd. of Regents, 175 Ga. App. 857 (5) (334 SE2d 890) (1985); OCGA § 9-15-14. In support of her claim respondent relies on the provisions of OCGA § 29-5-13 (a): “The amounts actually necessary or requisite to defray the expenses of any hearing held under this chapter [providing for guardians of incapacitated adults] . . . shall be paid: ... (2) [b]y the petitioner if no guardianship is ordered. . . .” In my view, the “expenses” referred to in OCGA § 29-5-13 (a) are not expenses of litigation but, rather, are tantamount to “costs” incurred in a judicial proceeding brought pursuant to OCGA Ch. 29-5. Cf. Bowers v. Fulton County, 227 Ga. 814 (1) (183 SE2d 347) (1971). See generally Royal Fin. Co. v. Knipher, 106 Ga. App. 712 (127 SE2d 922) (1962). In enacting this chapter, the General Assembly provided for payment of a sum certain plus expenses “to an attorney appointed to represent an allegedly incapacitated person . . .” as an item of such “expenses.” (Emphasis supplied.) OCGA § 29-5-13 (e). It could have, but did not, authorize payment of attorney fees as expenses of litigation incurred by privately employed counsel. See Strickland v. Williams, 234 Ga. 752 (3) (218 SE2d 8) (1975); see also Peacock v. Adams, 230 Ga. 774 (2) (199 SE2d 254) (1973); Johnson v. G. A. B. Business Svcs., 170 Ga. App. 686 (1) (318 SE2d 78) (1984). Therefore, respondent’s application for attorney fees was properly denied. Accord In re Graham, 136 Fla. 20 (186 S 202) (1939).

Decided November 3, 1987

Rehearing denied November 16, 1987

Gerald M. Edenfield, James B. Franklin, Michael J. Classens, for appellant.

I. Gregory Hodges, Wendy W. Williamson, for appellee.

Judgment affirmed.

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


author: Pope, Judge. Deen, Presiding Judge,

text:
    75151.
    JIM ROYER REALTY, INC. et al. v. MOREIRA.
    (363 SE2d 10)
   Pope, Judge.

In 1981 Nell and Roane Arrendale listed their home and lot on Lawrenceville Highway for sale with the brokerage firm of Century 21-Raymond Morris & Assoc., Inc. (Raymond Morris). The Arrendales took the property off the market when they were informed that the Georgia Department of Transportation (DOT) planned to widen Lawrenceville Highway. In October 1982 the Arrendales conveyed a portion of their property to the DOT by a duly recorded right-of-way deed. In December 1982 the Arrendales again listed the property for sale with Raymond Morris. Raymond Morris was given an exclusive listing, but was authorized to list the property with the Metro Listing Service, a multiple listing membership.

The facts show plaintiff Maria Moreira knew the property was listed with the Raymond Morris agency. Plaintiff claims she contacted defendant Judie Crawford, a licensed real estate agent associated with defendant Jim Royer Realty, Inc. (Jim Royer), “to help her in the purchase of the property.” Since Jim Royer was a member of the multiple listing service, Crawford was authorized to show Moreira the property. On March 29, 1983 Moreira entered a sales contract to purchase the property. This contract incorporated by reference the full legal description of the property contained in the recorded deed and provided that the buyer would have a reasonable time to examine the title to the property and furnish the seller with any written objections. The closing took place on April 22, 1983, at which time the Arrendales delivered to Moreira a warranty deed conveying the property “less and except that portion conveyed in the above described property at right of way deed at 4671, page 534, DeKalb County Records.” The sales commission was paid solely by the Arrendales and, pursuant to the multiple listing agreement, was split between the two real estate agencies.

Several months after the closing, the DOT began to widen the highway, involving the 20-foot strip conveyed by the Arrendales in October 1982. Subsequently, Moreira filed suit against the Arrendales, the Raymond Morris agency, Faye Schwegel (the listing agent with Raymond Morris), the Jim Royer agency, Judie Crawford, the closing attorney and his law firm, and the DOT. Essentially claiming that she had not been aware or properly informed of the conveyance of the 20-foot right-of-way to the DOT, Moreira asserted fraud, negligent misrepresentation, and negligence. The trial court granted summary judgment for all of the defendants except Jim Royer and Judie Crawford, Crawford’s motion being denied because she had never been served and thus was not subject to the court’s jurisdiction. This interlocutory appeal by Jim Royer and Judie Crawford followed.

The issue in controversy is whether defendants entered into any agency relationship, with attendant fiduciary duties with plaintiff, the purchaser. Defendants argue they are entitled to summary judgment because they owed no fiduciary duty to plaintiff, the purchaser. According to defendants, they participated in the sale only as the agent or “selling associate” of the listing broker pursuant to defendants’ membership in the multiple listing service. Therefore, defendants acted as subagents of the sellers and owed a fiduciary duty only to the sellers. Held:

We agree that under the facts of this case defendants did not owe any special fiduciary duty to the purchaser. However, we do not assume a non-listed selling broker, acting through a multiple listing service, can never be a dual agent of the purchaser as well as the seller of residential real estate. “ ‘An agent may perform mere ministerial acts, involving no discretion, for one of the parties to the contract, though he is agent for the other party. . . .’ [Cit.]” Spratlin, Harrington & Thomas v. Hawn, 116 Ga. App. 175, 182 (156 SE2d 402) (1967). Even if defendants Crawford and Jim Royer were subagents of the listing broker for purposes of sharing the commission fee, they could also have assumed certain duties in regard to plaintiff, the purchaser. See Shaw v. Fillman, 184 Ga. App. 364 (1) (361 SE2d 518) (1987).

The facts show plaintiff thought of Crawford as “her” agent in negotiating with the sellers and “their” agent. The testimony of seller Mrs. Arrendale indicates she also thought of defendant Crawford as plaintiff’s agent. Nevertheless, by sworn affidavit defendant Crawford denied she entered into any special contract or understanding whereby she agreed to represent or advise the plaintiff. Although plaintiff argues otherwise, she presented no sworn testimony or other competent evidence to refute defendants’ denial of a fiduciary or confidential relationship. Therefore, this case is distinguishable from Shaw v. Fillman, supra, in that no issue is presented of any relationship or understanding between the parties which would justify plaintiff’s reliance on defendants to interpret the written sales contract or closing documents or would justify plaintiff’s failure to read and understand those documents for herself.

Judgment reversed.

Birdsong, C. J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring with the ultimate holding that the appellants were agents of the seller of the realty, I do not agree with the reasoning of the majority opinion, because it misunderstands the legal consequences of a broker’s participation in a multiple listing service.

“The seller-broker relationship is a special agency created and defined by the listing agreement between the parties. . . . The listing agreement may authorize the broker to list the property with a multiple listing service. A multiple listing service is basically an arrangement for brokers in a given locality to pool their listings and split their commissions. . . . Brokers who are members of the multiple listing service submit their listings to a central bureau which then publishes and distributes a catalog of available properties. Under traditional agency principles, a listing contract which authorizes the listing broker to list the property with a multiple listing service permits the listing broker to create a subagency with other members of the multiple listing service.” Stortroen v. Beneficial Fin. Co. of Colo., 736 P2d 391, 396 (Colo. 1987). In Stortroen, the Colorado Supreme Court left no grey area in holding that absent a written agreement of agency between the selling broker and the purchaser, the selling broker will always be considered the agent of the listing broker and sub-agent of the seller.

As noted by Judge Powell, “[i]t is recorded of Him ‘who spake as never man spake,’ that, ‘seeing the multitudes, he went up into a mountain; and when he was set, his disciples came unto him: and he opened his mouth, and taught them, saying, ... No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.’ ” Gann v. Zettler, 3 Ga. App. 589 (60 SE 283) (1908). The law in this state heretofore, prohibiting dual agency unless disclosed to the principal, generally has followed that teaching. The Stortroen court’s analysis of the legal effect of a multiple listing service comports with that teaching. But the majority opinion finds it more enlightened to allow a silent dual agency.

Decided October 13, 1987

Rehearing denied November 16, 1987

Edward C. Stone, Quinton S. King, for appellants.

George Handelsman, for appellee.

Shaw v. Fillman, 184 Ga. App. 364 (361 SE2d 518) (1987), relied upon in part by the majority opinion, is inapposite here. That case involved business brokers, and no arrangement such as the multiple listing service in the instant case. As explained by the Stortroen court, and as understood and practiced by the real estate industry in this state until now, the legal consequence of a multiple listing arrangement is that the selling broker or agent is an agent of the listing broker and subagent of the seller. This is an unequivocal, hardfast, and workable rule, something definite and concrete that brokers, agents, sellers, and buyers can chew on. What the majority opinion serves instead is soggy toast.

Regardless of the menu, however, it is clear that the appellants were agents of the seller in this case. As agents of the seller, Crawford and Jim Royer certainly were not negligent in failing to advise Moreira to have private legal counsel or a title examination, so as to make absolutely sure that she understood the actual parameters of the property, since they had no duty to do so. Also, since no confidential relationship existed between Moreira and Crawford and Jim Royer, Moreira was bound to exercise ordinary diligence to verify any seller’s representations before an action based on any fraud could be maintained. See United Fed. Savings &c. Assn. v. Eubank, 180 Ga. App. 402 (349 SE2d 268) (1986). The right-of-way conveyance was not a hidden fact; it was there to be seen if only one looked. Accordingly, summary judgment was appropriate for Jim Royer, and Judie Crawford as well, had she been subject to the jurisdiction of the court.

       Perhaps this issue will soon be retired, since the newly revised Rule 520-1-.08 of the Rules of the Georgia Real Estate Commission, effective July 1, 1987, now requires the real estate agent to make a written disclosure of whether he or she is acting on behalf of the seller or the purchaser.


author: Benham, Judge.

text:
    74799.
    FARMER v. THE STATE.
    (363 SE2d 62)
   Benham, Judge.

Appellant was arrested on June 20, 1986, for DUI, driving without insurance, and operating a motor vehicle after being declared an habitual violator (HV). After a preliminary hearing, the charges were bound over to the State Court of Clayton County. On August 13, 1986, appellant there pled guilty to the DUI charge, was duly sentenced, and showed proof of motor vehicle insurance, causing the solicitor to move to nolle prosequi the insurance charge. The record does not reveal any action taken regarding the HV charge, a felony. On September 25, 1986, a Clayton County grand jury indicted appellant for DUI and HV, arising out of the June 20 incident. Appellant pled not guilty at arraignment, and filed a plea in bar as to the indictments. The trial court granted the plea with regard to the DUI but denied it on the HV charge. On direct appeal (Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982); McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984)), appellant challenges that denial, arguing that OCGA § 16-1-7 (b) requires it be reversed. We affirm.

Decided November 16, 1987.

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

OCGA § 16-1-7 prohibits multiple convictions and successive prosecutions for the same conduct. Brock v. State, 146 Ga. App. 78, 80 (245 SE2d 442) (1978). OCGA § 16-1-7 (b) states: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .” It is undisputed that the various crimes arose out of the same conduct and that they were within the jurisdiction of a single court, the Superior Court of Clayton County. See OCGA § 15-6-8 (1); Brock, supra. The only question left unanswered is whether the crimes were known to the proper prosecuting officer at the time of commencing the prosecution. Applying the standard set out in Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), we find that they were not. Baker holds that OCGA § 16-1-7 (b) applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” Id. p. 4. We find nothing in the record to show affirmatively that the assistant solicitor knew of the HV charge at the time of the state court prosecutions. “[Sjince [Farmer] did not establish that the assistant solicitor had actual knowledge of the felony offense that arose from the same conduct as the traffic charge, the State may proceed with its prosecution of the habitual violator offense against [Farmer].” Id. p. 4.

Judgment affirmed.

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


text:
    75022.
    TARWID et al. v. THE STATE.
    (363 SE2d 63)
   Pope, Judge.

Appellants John and Robert Tarwid bring this appeal from their convictions and sentences of trafficking in cocaine. Held:

1. Appellants first contend that the trial court erred in denying their motions to suppress, which were based on the alleged illegality of the stop, detention and subsequent search of the automobile in which they were traveling. The evidence adduced at the suppression hearing showed the following: Sometime after midnight on October 30, 1986 Officer Claude Johnson of the Catoosa County Sheriffs Department received a radio transmission from Georgia State Trooper M. S. Ralston “[t]hat he [Ralston] had made a traffic stop on [the vehicle in which appellants were traveling] in another county [on I-75]. . . . And that he had given the driver [John Tarwid] a warning citation for speeding, that the vehicle and the people in the vehicle had shown signs of trafficking [in drugs]. . . .” Although Trooper Ralston provided no specifics as to the basis of his belief that the occupants of the car were trafficking in drugs, he did provide a description of the car and its tag number (Illinois plates), stated that he believed the car to be a rental and that his request for consent to search the car had been refused.

Officer Johnson subsequently spotted and proceeded to follow a vehicle matching the description given by Trooper Ralston. After following the car for approximately one mile, Officer Johnson turned on his blue light and, according to his testimony, the driver immediately shouldered the car and stopped. Officer Johnson further testified that he decided to stop appellants based on “tj]ust his manner of speed, wasn’t driving very fast, that’s an indication at that time of the morning, somebody may be going home drinking or driving the vehicle drunk.” Officer Johnson estimated appellants’ speed at 45-50 mph and stated that the traffic generally was moving at 60-65 mph. Officer Johnson also testified that at the time of the stop appellants were not committing any traffic violations. Officer Johnson subsequently stated that the stop was based both on appellants’ low rate of speed and the information received from Officer Ralston.

After appellants stopped, Officer Johnson approached the car and asked for appellant John Tarwid’s driver’s license, which he immediately produced. Officer Johnson further testified that he quickly surmised that appellants were not intoxicated; nevertheless, he took the driver’s license back to his patrol car to run a check on it. He subsequently asked for and received the car rental agreement and radioed in a check on that document also. While waiting to receive the information on the license and agreement, he asked appellants’ consent to search the car. When they refused, he informed them “that I may be calling for a dog” and “that if . . . circumstances warranted it, . . . we would obtain a search warrant.” Officer Johnson also testified that two other law enforcement officers, each traveling in a separate car, arrived on the scene shortly after he stopped appellants.

Officer Johnson then returned to his car to receive the information being transmitted to him on the document checks; however, before he could receive that information, one of the other officers on the scene approached his car and informed him that verbal consent to search the car had been obtained. A written consent to search was also obtained. The search of the car yielded 4 packages containing approximately nine pounds of cocaine.

We first consider appellants’ arguments concerning the legality of the stop of their vehicle by Officer Johnson. “Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only unparticularized suspicion or hunch, 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909). United States v. Smith, 799 F2d 704, 707 (11th Cir. 1986). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.) United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).” (Punctuation omitted.) Evans v. State, 183 Ga. App. 436, 438 (359 SE2d 174) (1987).

We first consider whether Officer Johnson’s suspicion that appellant John Tarwid was driving under the influence constitutes the necessary basis for the stop in the present case. In this regard, we find the court’s analysis in United States v. Smith, 799 F2d 704, supra, to be particularly instructive. In Smith, in addition to Trooper Vogel’s testimony that he stopped appellants, who were subsequently convicted of possession of cocaine with intent to distribute, on the basis of the drug courier profile, there was also evidence that appellants were weaving prior to the stop. In addressing the issue of whether Officer Vogel could have conducted a Terry-stop to investigate the possibility of drunk driving, the court stated that “in determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” Id. at 709.

Applying this analysis to the present case, we are forced to conclude that the stop here was similarly pretextual. First, we note that by Officer Johnson’s own account appellants were traveling only slightly under the posted maximum speed limit. And, although he also testified that traffic in general was traveling in excess of that limit, those persons, unlike appellants, presumably had not just received a warning citation for speeding. It is reasonable to conclude that a driver would slow down after receiving a warning citation for speeding, even if other cars were traveling at a faster rate of speed. It is also important to note Officer Johnson knew that appellants had just received a warning citation from Trooper Ralston. Moreover, it strains credulity to suggest that Officer Ralston would have released appellants with only a warning citation for speeding had he suspected the driver was intoxicated or that he would not have mentioned that fact in his radio transmission. Lastly, Officer Johnson testified that although he quickly concluded that his suspicions were unfounded, he continued to detain appellants in order to conduct a license check and to verify the car rental agreement. Again, however, Trooper Ralston would presumably not issue a traffic citation, albeit only a warning, without also verifying this information. Thus, under the circumstances present here, a reasonable officer would not have concluded that appellants were intoxicated solely because they were traveling slightly under the posted maximum limit, and, absent an illegal motivation, would not have continued to detain appellants from ascertaining that they were not, in fact, driving under the influence.

“By looking to what a reasonable officer would do rather than to what an officer validly could do, the standard we apply today to determine the validity of an allegedly pretextual investigative stop is supportive of the rationales that make Terry-stops reasonable under the [F]ourth [A]mendment. Terry-stops are reasonable not only because of the government’s interest in investigating and alleviating officers’ suspicions of illegal activity but also because of the limited intrusiveness of such stops. 392 U. S. at 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908-09. To maintain this balance between the competing interests of the government and the individual, each Terry-stop must be both ‘justified at its inception’ and ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ Terry, 392 U. S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905 .. . If officers were permitted to conduct Terry-stops based on what conceivably could give rise to reasonable suspicion of minor violations, the necessary connection between a seizure’s justification and its scope would inevitably unravel.” Smith, supra at 711.

We must also consider, however, whether the present stop can be justified based on Trooper Ralston’s radio communication that appellants showed “signs” of trafficking in drugs. In this regard, appellants concede that a reasonable suspicion may exist based on the collective knowledge of law enforcement officials. United States v. Allison, 616 F2d 779 (5th Cir. 1980). However, this does not obviate the requirement that evidence of articulable and specific facts must be presented to justify a Terry-stop. In the present case the only evidence presented at the suppression hearing was Officer Johnson’s testimony concerning Trooper Ralston’s radio transmission that appellant had shown “signs” of trafficking. Trooper Ralston did not testify, and Officer Johnson testified that he was unfamiliar with the drug courier profile. The only evidence we have of Trooper Ralston’s “signs” is what can be surmised from his conduct during the initial stop of appellants. Since these signs were apparently insufficient to justify appellants’ continued detention or to constitute probable cause to search appellants’ vehicle without their consent, it appears to us that Trooper Ralston’s “signs” were nothing more than “inarticulate hunches” and thus insufficient to justify a seizure under the Fourth Amendment. “That Trooper [Ralston’s] ‘hunch’ about the appellants proved correct is perhaps a tribute to his policeman’s intuition, but it is not sufficient to justify, ex post facto, a seizure that was not objectively reasonable at its inception. [Cits.] Because [the record contains no evidence that Ralston had] a reasonable suspicion that the appellants were hauling drugs, the stop cannot be upheld on that ground.” (Indention omitted.) Smith, supra at 708.

Decided November 16, 1987.

John 0. Wiggins, Julius Echeles, for appellants.

David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

Pretermitting the issue of whether appellants’ consent to search was in fact voluntary, we also find that such consent was tainted by the illegal stop and detention and thus decline to uphold the subsequent search and seizure on that basis. See, e.g., Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983); United States v. Thompson, 712 F2d 1356 (11th Cir. 1983).

2. Because of our holding in Division 1, supra, it is unnecessary for us to consider appellants’ remaining enumerations.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    75061.
    PERKINS MASONRY CONTRACTORS, INC. v. HOUSING AUTHORITY OF ATLANTA.
    (363 SE2d 164)
   Pope, Judge.

Appellant Perkins Masonry Contractors, Inc. filed suit against appellee Housing Authority of the City of Atlanta on March 20, 1985 alleging breach of contract. Appellee was served on March 22, 1985. On June 3, 1985 appellee’s counsel learned that the case had been placed on the June 20, 1985 default calendar based on appellee’s failure to file its answer to the complaint. On June 10, 1985 appellee filed its motion to open default. In support of its argument that its failure to file an answer was based on excusable neglect, appellee showed the following: On March 25, 1985 appellee forwarded a copy of the complaint to its then attorney. By correspondence dated March 29, 1985 appellee’s attorney forwarded a copy of appellee’s answer to appellant’s counsel. Appellee’s attorney also forwarded a copy of the answer to appellee along with a letter stating that he had filed the answer. Appellee retained new counsel in May, 1985 who after reviewing the file, including the above correspondence, determined that an answer had been filed. However, when counsel learned that the case had been placed on the motion calendar, he contacted the clerk’s office and learned that this was not, in fact, the case.

The trial court found that appellee “was excusably negligent based upon its reliance upon counsel in filing its answer with the court,” and granted the motion to open default. The trial court subsequently granted appellee’s motion for summary judgment. On appeal, appellant challenges only the trial court’s order granting appellee’s motion to open default.

OCGA § 9-11-55 (b) “allows a prejudgment default to be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. [Cits.]” Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984). The record in the present case shows that appellee complied with the necessary conditions prior to the opening of the default; hence, the only issue presented for review is whether the trial court abused its discretion in finding that appellee’s failure was based upon excusable neglect. As to this issue, the record shows that appellee was prompt and diligent in forwarding a copy of the complaint to its counsel. More importantly, the record also shows that appellee, based upon its attorney’s unequivocal, written representation, reasonably believed that its attorney had been equally diligent in filing its answer. Lastly, the record shows that appellant was served with a copy of appellee’s answer. “The law should not blindly impose standards which require individuals, in the conduct of their daily business, to distrust the parties with whom they deal. Likewise, a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow, particularly when no innocent party will suffer if the default is opened.” Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977). We believe these words ring especially true when that trust and reliance is placed in the litigant’s attorney. Therefore, under the circumstances of the present case, we find that the trial court did not abuse its discretion in opening the default on the ground of excusable neglect. Donalson v. Coca-Cola Co., 164 Ga. App. 712 (1) (298 SE2d 25) (1982); cf. Millholland v. Stewart, 166 Ga. App. 431 (1) (304 SE2d 533) (1983); Howell Enterprises v. Ray, 163 Ga. App. 68 (293 SE2d 24) (1982); American Erectors v. Hanie, 157 Ga. App. 687 (278 SE2d 196) (1981).

Decided November 16, 1987.

Bruce E. Pashley, for appellant.

Ira P. Bernstein, Debra C. Bracewell, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    75103.
    McKEE v. SAVANNAH RADIOLOGISTS, P. A. et al.
    (363 SE2d 166)
   Pope, Judge.

Plaintiff Elizabeth J. McKee was injured in a two-car collision on June 30, 1985. As a result of the collision, she sustained a severe bruise just below the knee of her left leg which caused considerable swelling of the left leg from the knee down to her toes. When the swelling persisted her treating physician referred her to defendant Robert G. Bradbury, M.D., for a venogram to determine if a blood clot had formed in the leg. A venogram is a diagnostic procedure in which dye is injected into the veins of a given part of the body and then the affected portion of the body is examined by x-ray to determine if a blockage exists in the venous system. On July 9, 1985 plaintiff was admitted as an outpatient at defendant St. Joseph’s Hospital in Savannah where Dr. Bradbury performed the procedure. During the procedure twenty to thirty cc of dye was mistakenly injected into the tissue of the left foot as opposed to the intended vein. As a result, plaintiff suffered a third-degree chemical burn to a portion of her left foot and was required to undergo plastic surgery for treatment of the burn.

Plaintiff filed an action in the Liberty County Superior Court against the drivers of the two automobiles, one of whom is a resident of Liberty County, and against St. Joseph’s Hospital, Dr. Bradbury and Savannah Radiologists, P. A., the professional association of which Dr. Bradbury is a professional employee. The latter three defendants, all residents of Chatham County, moved for dismissal on the ground of improper venue. The court granted the respective motions of these defendants. Pursuant to Uniform Superior Court Rule 19.1, the court further ordered plaintiff’s claim against Dr. Bradbury and Savannah Radiologists, P. A., be transferred to the Superior Court of Chatham County. Plaintiff appeals, arguing that venue is proper in Liberty County because all defendants are joint tortfeasors.

Decided November 16, 1987.

1. Plaintiff’s first two enumerations of error, which will be addressed as one, both relate to plaintiff’s argument that all defendants are joint tortfeasors who may therefore be tried in the county where any one of them resides, pursuant to Ga. Const. 1983, Art. VI, Sec. II, Par. IV. The issue in this case is whether the defendants to plaintiff’s medical malpractice claim are, in fact, joint tortfeasors with the drivers of the automobiles which collided. We agree with the trial court that they are not.

In her sworn deposition, plaintiff admits she suffered two separate injuries. Before the venogram was performed, her only injury was to her left knee. Although the initial injury to her knee caused swelling of the left leg from the knee to the toes, she experienced no problem with her foot before the venogram was performed. The venogram allegedly caused further swelling of the left foot. However the true injury caused by the improperly administered venogram was the resulting chemical burn. “ ‘If the [concurrent] acts [of independent wrongdoers] result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts.’ ” Gilson v. Mitchell, 131 Ga. App. 321, 325 (205 SE2d 421) (1974), adopted and aff’d 233 Ga. 453 (211 SE2d 744) (1975). Even where the original injury was subsequently aggravated by medical treatment, we have found the two injuries to be separate and not indivisible. E.g., Gay v. Piggly Wiggly Southern, 183 Ga. App. 175 (2) (358 SE2d 468) (1987). Here, the injury from medical treatment was not even an aggravation of the initial injury but was a totally separate injury to a different part of the body. The court did not err in dismissing the medical malpractice defendants on the ground of improper venue since they were not joint tortfeasors with the driver of the automobile in which plaintiff was initially injured, the only defendant who is a resident of Liberty County.

2. Having determined venue was improper in Liberty County as to the medical malpractice defendants, the trial court properly transferred the action against defendants Dr. Bradbury and Savannah Radiologists, P. A., to the Superior Court of Chatham County. See Uniform Superior Court Rule 19.1 (A).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

Robert F. Pirkle, Richard D. Phillips, for appellant.

Stanley R. Karsman, I. Gregory Hodges, Wendy W. Williamson, Wiley A. Wasden III, Joseph P. Brennan, A. Martin Kent, for appellees.


text:
    75571.
    BRUNDIDGE v. THE STATE.
    (363 SE2d 66)
   Pope, Judge.

Defendant Isaac Brundidge appeals from his conviction and sentence of armed robbery.

Ms. Renfroe, the night clerk at the Edgewood Motel, testified that the perpetrator first entered the hotel at approximately 10:15 p.m., asked for a room and then left. He returned a few minutes later and stated that he wanted the room. Ms. Renfroe instructed him to complete a registration card, which he proceeded to do. When he placed his arms on the desk to complete the registration card, Ms. Renfroe noticed disfiguring scars on both of the perpetrator’s arms. According to the testimony of Ms. Renfroe, the perpetrator then lifted his shirt, drew a revolver, pointed it at Ms. Renfroe and demanded money. Ms. Renfroe complied and the perpetrator fled. Ms. Renfroe subsequently identified the defendant as the perpetrator during both a photographic and stand-up lineup.

1. Defendant asserts the general grounds and argues that his conviction cannot be upheld under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), because his girl friend and others testified that they, along with the defendant, were at a friend’s apartment on the night the robbery was committed. However, “it is well settled in this state that issues regarding credibility of witnesses must be resolved solely by the jury. Davis v. White, 168 Ga. App. 272, 273 (308 SE2d 602) (1983); see also Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985).” (Punctuation omitted.) Tillman v. State, 184 Ga. App. 210, 211 (361 SE2d 66) (1987). Moreover, each witness also testified that defendant was not at the apartment at the time the robbery allegedly occurred as the defendant and one Michael Brown left the apartment at approximately 10:00 p.m. in order to purchase more beer and liquor. We find, therefore, that construed so as to uphold the verdict, as we must on appeal, the evidence presented was sufficient to enable any rational trier of fact to find the defendant guilty of the offense charged beyond a reasonable doubt. See, e.g., Proffitt v. State, 181 Ga. App. 564 (1) (353 SE2d 61) (1987); Felton v. State, 181 Ga. App. 160 (1) (351 SE2d 488) (1986); Dixon v. State, 179 Ga. App. 278 (1) (346 SE2d 93) (1986).

Decided November 16, 1987.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, Martha M. Dicus, Assistant District Attorney, for appellee.

2. The defendant also argues that the State impermissibly placed his character in issue by introducing evidence that defendant had been in that same courtroom on an earlier date. The record shows that the complained of remark was part of an extensive cross-examination by the State concerning a statement by the defendant that he had a very good memory as to where he was on certain dates. The prosecutor then questioned defendant as to his whereabouts on specified dates. When the defendant indicated that he could not recall where he was on June 21, 1985, the prosecutor responded: “You don’t remember? What if I told you that you were in this very courtroom on that day?” A motion for mistrial was made on the ground that defendant’s character was impermissibly placed into evidence by this question. The trial court denied the motion, and following a discussion with counsel, immediately instructed the jury that the question was solely for the purpose of testing the witness’ memory and should be considered only for that purpose. “ ‘The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial.’ (Citations and punctuation omitted.) Pruitt v. State, 176 Ga. App. 317 (1) (335 SE2d 724) (1985).” Dixon v. State, supra at 279.

Under the circumstances of the present case, in which the prosecutor did not indicate that defendant had been on trial for a criminal offense on the specified date and in which limiting instructions were immediately given to the jury, we find no abuse of discretion in the trial court’s denial of defendant’s motion. Accord McDermott v. State, 183 Ga. App. 693 (359 SE2d 750) (1987); Davis v. State, 182 Ga. App. 841 (2) (357 SE2d 294) (1987). Accordingly, this enumeration provides no basis for reversal.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Beasley, Judge.

text:
    74520.
    KWON et al. v. FLEMING.
    (363 SE2d 28)
   Beasley, Judge.

This is a discretionary appeal by employers, Walter and Christine Kwon d/b/a Old Country Buffet from the superior court’s affirmance of an award of the State Board of Workers’ Compensation in favor of claimant Fleming.

The ALJ found the following: Fleming sustained an accident arising out of and in the course of her employment on September 6, 1985, when she stepped on some cleaning powder in the restaurant’s kitchen and fell on the concrete floor. The Kwons, owners of the restaurant, were present when Fleming fell and Mr. Kwon laughed at her. Fleming told Mrs. Kwon several times that she was hurting, was in pain, and was unable to work. Claimant went to see her personal physician on September 13; her last day of work was on September 18. On November 6, she was admitted to the hospital for ten days. Mrs. Kwon visited her and asked her to state that the fall occurred the day before her hospital admission so that insurance would cover the accident. Fleming had her coccyx removed on April 11, 1986, and has been totally disabled from her work-related injury since September 19, 1985. The employers did not controvert the claim until March 13, 1986.

The ALJ concluded that: claimant could go to the physician of her choice for treatment; claimant could not obtain her rights under the Workers’ Compensation Act, and had to employ an attorney; having prevailed in her claim, attorney fees and penalties were warranted for failure to controvert the claim within twenty-one days and for having no reasonable defense thereto.

The employers were directed to pay Fleming total disability benefits until altered or terminated by law, specified reasonable medical expenses, future medical expenses reasonably required to effect a cure or give relief to her injury-resultant condition, reimbursement for the coccyx surgery, and attorney fees of one-third of the recovery without deduction from claimant’s benefits.

It was and is undisputed that at the time of Fleming’s injury, the employers had no workers’ compensation insurance coverage nor were they self-insurers for the purpose of workers’ compensation. However, the ALJ did not impose additional penalties on the employers for failure to provide workers’ compensation coverage because she found that they did not wilfully fail to obtain it.

1. The employers maintain that at the time of claimant’s fall, they had posted a panel of physicians and that inasmuch as claimant sought treatment from her personal physician rather than an authorized one, they should not be held liable for claimant’s medical expenses prior to their controverting the claim.

While it is true that an employer is “not responsible for medical expenses where the employee makes no effort to select from a properly posted panel of physicians, but instead chooses his own doctor and is treated before the employer files a notice to controvert, ITT- Continental Baking Co. v. Powell, 182 Ga. App. 533 (2) (356 SE2d 267) (1987); State of Ga. v. Tungler, 181 Ga. App. 21 (351 SE2d 248) (1986); Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654 (2) (350 SE2d 299) (1986).” Pritchard Svcs. v. Lett, 183 Ga. App. 298, 300 (358 SE2d 842) (1987), this rule does not apply here. If any such panel was posted at the time of claimant’s injury it was ineffective because the employer had no workers’ compensation coverage. The record shows that any posted panel of physicians was either a remnant of the prior owners’ insurance coverage or part of the Kwons’ apparently mistaken assumption that they had in force workers’ compensation insurance. In either instance any list was rendered ineffective by the complete lack of required workers’ compensation coverage. Furnishing workers’ compensation coverage is what gives the employer the right to choose physicians.

“ ‘The law of workers’ compensation generally requires that the employee will be liable for non-authorized treatment if the expenses are incurred without giving the employer an opportunity to furnish treatment; if the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment. [Cit.]’ [Cit.]” Id. The employers’ failure to furnish workers’ compensation coverage prevented them from adequately meeting the statutory duty. Under these circumstances, the employers’ claim that they should not be held responsible for claimant’s pre-controvert medical expenses is rejected.

2. Appellants also maintain that claimant’s injuries are the result of a pre-existing condition not connected with a work-related injury and thus she is not entitled to compensation for her injuries.

Evidence supports the finding of the ALJ to the contrary, as adopted by the Board. “ ‘It is axiomatic that any finding of fact by the board, if supported by any evidence, is conclusive and binding upon the superior court and this court. OCGA § 34-9-105; [Cit.]’ [Cit.]” N. G. Gilbert Corp. v. Cash, 181 Ga. App. 775, 777 (353 SE2d 840) (1987).

3. Lastly, appellants contend that they were never given “proper notice” that “an injury causing accident had occurred on their premises.” They argue that the notice pertaining to lost time from work given them by the claimant stated that time would be lost from work due to a cause other than the alleged fall in the restaurant’s kitchen.

The ALJ’s findings that Mr. Kwon was present and witnessed claimant’s fall and responded to it is supported not only by claimant’s testimony but also by that of another employee who witnessed the fall. The further finding that claimant told Mrs. Kwon that she was in pain and unable to work is likewise supported by the record. The authority cited in Division 2 controls here as well.

Decided October 28, 1987

Rehearing denied November 17, 1987.

Lloyd Hoffspiegel, for appellants.

E. Neal Little, Jr., for appellee.

The notice in this case was sufficient under OCGA § 34-9-80. See Gossage v. City of Dalton Fire Dept., 257 Ga. 430 (360 SE2d 249) (1987).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    74594.
    TODD v. F. W. WOOLWORTH COMPANY.
    (363 SE2d 564)
   McMurray, Presiding Judge.

In this slip and fall case, we are concerned with the responsibility of an owner or occupier to exercise ordinary care to keep its premises and approaches safe for invitees. Specifically, we must determine whether an owner’s or occupiér’s responsibility in this regard extends to a public plaza abutting the premises.

The F. W. Woolworth Company operates a department store in downtown Atlanta near the MARTA Five Points Rail Station. One side of the store faces Forsyth Street; the other side faces Broad Street. In the vicinity of the store, Broad Street has been converted into a pedestrian plaza. The plaza provides pedestrian access to the MARTA rail station for the general public. It was built immediately adjacent to the store. Thus, when a person leaves the store on the Broad Street side, he or she steps directly from the premises to the pedestrian plaza. Woolworth’s controls the premises which the store occupies; it does not, however, control any portion of the pedestrian plaza.

On December 28, 1983, Larry Robinson, manager of the Woolworth store, went to work early in the morning. He walked along Forsyth Street and noticed that it was icy downtown and that people were slipping and sliding on the sidewalk in front of the store. Mr. Robinson entered the store at about 7:30 a.m. Although he did not view the Broad Street side of the store, he assumed that ice had accumulated on the pedestrian plaza.

Later that morning, plaintiff, a 62-year-old woman, woke up and got dressed for work. It was cold — so plaintiff put on several layers of clothing. At about 9:00 a.m., plaintiff took a bus downtown. She got off the bus on Forsyth Street about one block from the Woolworth store. As she walked along Forsyth Stréet, plaintiff noticed that the ground was damp; but she did not see any accumulations of snow or ice.

Plaintiff entered the Woolworth store on Forsyth Street in order to buy a lunch for work. After making her purchase, plaintiff exited the store on Broad Street. She glanced at a display window, took about three steps and slipped and fell on the pedestrian plaza, sustaining a fractured ankle. The slip took place on a patch of “clear, glazed ice.” Woolworth’s manager and an unidentified gentleman carried plaintiff back into the store. An ambulance was summoned and plaintiff was taken to the hospital. Following surgery, plaintiff remained in the hospital for about one week.

Six months later, plaintiff brought this lawsuit against the F. W. Woolworth Company. The complaint, as amended, was based upon two theories of liability. First, it was alleged that defendant was negligent in that it failed to exercise ordinary care to keep its premises and approaches safe for invitees. Second, plaintiff charged that defendant was negligent per se in that it breached a City of Atlanta ordinance which requires establishments fronting sidewalks to clear accumulations of ice and snow from the sidewalks within a reasonable time after the accumulation.

Defendant answered the complaint and denied the material allegations therein. Following discovery, the case proceeded to trial. At the close of all the evidence, defendant moved for a directed verdict. The trial court took the motion under advisement and let the case go to the jury. A verdict in favor of plaintiff in the amount of $63,000 was returned. Prior to the entry of judgment, defendant orally moved for judgment notwithstanding the verdict. That motion was also taken under advisement by the trial court. Thereafter, defendant’s motion for directed verdict was granted and judgment was entered accordingly. This appeal followed. Held:

1. The seminal question for decision is whether defendant owed a duty to plaintiff with regard to the accumulation of ice on the pedestrian plaza. Citing Elmore of Embry Hills v. Porcher, 124 Ga. App. 418 (183 SE2d 923), plaintiff argues that defendant was responsible for keeping the plaza safe for invitees and that, therefore, defendant had a duty to remove the ice or to warn plaintiff of its presence. Relying upon Spindel v. Gulf Oil Corp., 100 Ga. App. 323 (111 SE2d 160), defendant asserts it had no duty whatsoever with regard to the ice because it did not control any portion of the plaza. Given the facts of this case, we do not find these authorities decisive. Why? Because Elmore of Embry Hills v. Porcher, 124 Ga. App. 418, supra, and Spindel v. Gulf Oil Corp., 100 Ga. App. 323, supra, deal with obstructions on adjacent, privately owned property. In this case, on the other hand, we are concerned with an accumulation of ice on an abutting public, pedestrian thoroughfare.

It has long been the rule that the owner or occupier of premises abutting a public sidewalk cannot be held liable for injuries stemming from an obstruction on the sidewalk unless he caused or contributed to the obstruction. Rhodes v. Perlis, 83 Ga. App. 312 (63 SE2d 457); Mason v. Crowe, 88 Ga. App. 191, 195 (76 SE2d 432). Belk-Matthews Co. v. Thompson, 94 Ga. App. 331 (94 SE2d 516). This rule is equally applicable to accumulations of ice on a public sidewalk: “In the absence of a statutory provision to the contrary, the owner of property owes no duty to pedestrians to keep the sidewalk in front of it free from ice and snow coming thereon from natural causes or by the acts of others, or to guard against the risk of accident by scattering ashes or using other like precautions, and will not be liable in damages to persons injured by reason of his failure to do so. This general rule, however, is not applicable where such property owner constructs or maintains upon his property gutters, conductor pipes, or other structures or channels, in such a manner as to cause an artificial discharge and accumulation of water upon the sidewalk, which, when frozen, makes the use of the sidewalk dangerous.” Annot., 18 ALR3d 428, 432 (1968).

No evidence was presented to suggest that defendant caused or contributed to the accumulation of ice on the pedestrian plaza. Accordingly, we hold that defendant owed no duty to plaintiff to remove the ice on the plaza or to warn plaintiff of its presence. Rhodes v. Perlis, 83 Ga. App. 312, supra. See also Olson v. City of St. James, 380 NW2d 555, 560 (3) (Minn. App. 1986). Our holding is apt even though plaintiff was an invitee who fell after she left defendant’s store. Tripp v. Granite Holding Co., 450 P2d 99, 100 (Utah 1969), and cases cited therein at fn. 3. In cases of this kind, unlike those cases in which a person is injured on the property of a landowner, the status of the injured person (whether invitee, licensee or trespasser) is of no consequence. See McKinley v. Fanning, 595 P2d 1084, 1086 (Idaho 1979).

2. The City of Atlanta ordinance requiring establishments fronting sidewalks to clear accumulations of ice and snow from the sidewalks does not aid plaintiff’s cause. The ordinance creates a duty to the city; it does not create liability in favor of third persons. See Goldman v. Clisby, 62 Ga. App. 516 (2) (8 SE2d 701). See also Johnson v. J. S. Bell &c. Co., 202 Va. 274 (117 SE2d 85, 82 ALR2d 995) (1960).

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Decided November 3, 1987

Rehearing denied November 17, 1987

Leigh R. Bodner, for appellant.

Thurbert E. Baker, for appellee.


text:
    74710.
    COMER v. NATIONAL BANK OF GEORGIA.
    (363 SE2d 153)
   Beasley, Judge.

Comer appeals the grant of summary judgment to NBG on her cross-claim against it in litigation originated by her ex-husband’s former company. While the underlying litigation is factually complex, the facts concerning the cross-claim are fairly straightforward. Mr. Comer had given numerous security deeds to NBG to secure loans to his business entities, all of which he personally guaranteed. These deeds included a second mortgage deed to secure debt on a lot on Kiawah Island, S. C., which had been purchased by Mr. and Mrs. Comer in 1981. When the financial difficulties arose, NBG purchased the original note and mortgage deed from the sellers of the Kiawah Island property in order to protect its junior security interest.

As a result, in November 1982, Ms. Comer executed a confession of judgment to NBG for $47,000. It is this judgment that forms the basis of the cross-claim, Ms. Comer claiming that NBG’s failure to mark it “satisfied” after foreclosing on and selling the property created a libel by leaving the impression that the judgment had not been paid. This libel by NBG is claimed by Ms. Comer to be contained in a credit report which reflects the judgment.

1. With regard to enumeration 2, claiming error in the trial court’s failure to “mandate and order” NBG to enter a satisfaction of judgment on the South Carolina confessed judgment, there was no request made before the trial court for such relief and therefore there is nothing in this regard for this Court to review. Miness v. Miness, 254 Ga. 658, 659 (3) (333 SE2d 574) (1985); Omni Express v. Cleveland Express, 178 Ga. App. 42, 43 (3) (341 SE2d 911) (1986).

2. Enumerations 1, 3, 4, 5, and 6 all deal with the propriety of the summary judgment entered on cross-claimant’s libel claim and will be treated together. Although cross-claimant’s brief does not separate and number its argument as required by Rule 15 (c) (1), we will address the argument as we can discern it.

Libel is defined as “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule, (b) The publication of the libelous matter is essential to recovery.” OCGA § 51-5-1.

The allegation below and the argument here is that the failure of NBG to mark the confession of judgment “satisfied” is the libelous act. It is conceded in the brief of Ms. Comer that the confession of judgment (a statement made by her) was true and that at the time that document was filed in South Carolina, the $47,000 was owed by her. Thus there is nothing libelous about that document. OCGA § 51-5-6; see Jones v. Neighbor Newspapers, 142 Ga. App. 365, 369 (2) (236 SE2d 23) (1977).

Appellant has cited no case and we are unfamiliar with any which provide that the failure to make a written statement has been upheld as the basis for a libel action. In fact, the only authority dealing with an omission, relied on by cross-claimant for another proposition, is to the effect that an omission of information from a statement admittedly published will not support an action for libel. Ajouelo v. Auto-Soler Co., 61 Ga. App. 216, 222 (6 SE2d 415) (1939).

This rationale is particularly appropriate in this case because the record contains proof of South Carolina law, Code of Laws of South Carolina § 29-3-650, which states that in a foreclosure and sale, the obligation to credit the judgment with the proceeds from the sale is upon the “officer making the sale under order of the court...” Thus, NBG had no obligation in this regard.

There being no legal basis shown for any libel claim on the undisputed facts before the court, it was not error to grant summary judgment to NBG on the cross-claim. OCGA § 9-11-56 (c).

3. The brief alludes to the error of the trial court in granting the summary judgment because no accounting has been rendered “as to the foreclosure sale of the Kiawah Island property . . .” Pretermitting the issue of whether any viable claim was made for any accounting below and whether, if there were, this appeal should have been transferred to the Supreme Court, the argument made on appeal concerning the South Carolina property was never presented to the trial court. The only reference in the record even mentioning an accounting relates to a North Carolina warehouse property on which NBG had been collecting rents pursuant to an assignment of rents. Thus, any argument concerning the North Carolina property has been waived by not being pursued here, and any argument concerning the South Carolina property presents nothing for our review because it was not raised below. Miness v. Miness, supra.

Judgment affirmed.

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

Decided October 22, 1987

Rehearing denied November 17, 1987.

George G. Chenggis, for appellant.

Stephen M. Forte, Glenville Haldi, for appellee.


text:
    74846.
    JACOBS v. THE STATE.
    (363 SE2d 155)
    Decided October 28, 1987
    Rehearing denied November 17, 1987
    Jessie Jacobs, pro se.

      Beverly B. Hayes, Jr., District Attorney, Edwin J. Wilson, Assistant District Attorney, for appellee.
   Beasley, Judge.

Jacobs pled guilty, with the assistance of appointed counsel, to one count of burglary, OCGA § 16-7-1 (a). He has filed a pro se appeal.

A review of the record of the plea and sentencing proceeding shows that the trial court did not advise defendant of his right to have counsel appointed for any appeal he might wish to pursue. Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984); Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984); Norwood v. State, 172 Ga. App. 685 (324 SE2d 545) (1984). While a defendant has a right to pursue an appeal pro se, Ga. Const. 1983, Art. I, Sec. I, Par. XII, Cochran v. State, supra, it must be preceded by an appropriate waiver of the right to appellate counsel. The failure to advise of the right to appeal was harmless error because defendant has in fact appealed, and in a timely fashion. But this does not cover the failure to advise of the right to counsel on appeal, Reid v. State, 235 Ga. 378 (219 SE2d 740) (1975), because appellant is here pro se without a showing on the record of an opportunity to choose.

Therefore, we dismiss this appeal without prejudice and remand this case for instructions by the trial court to Jacobs consistent with Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981) and Cochran, supra.

Appeal dismissed and case remanded.

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


author: Banke, Presiding Judge.

text:
    75163, 75164.
    HARRISON v. DORSEY; and vice versa.
    (363 SE2d 151)
   Banke, Presiding Judge.

Dorsey sued Harrison in contract to recover a commission allegedly owed him as the result of a real estate purchase Harrison had made. This is the second appearance of the case before this court. The first appeal was from a judgment entered in favor of Harrison at the conclusion of a non-jury trial, based on a factual determination by the trial court that no contract had existed between the parties. We reversed that judgment and remanded the case for a new trial, holding that an agreement to pay a commission was implied as a matter of law from the evidence regarding the parties’ conduct. Dorsey v. Harrison, 171 Ga. App. 774, 779 (320 SE2d 881) (1984).

Upon the return of the case to the trial court, Dorsey moved for summary judgment in reliance upon the transcript of the previous trial and the language of our prior decision. That motion was denied, and the case once again proceeded to trial, this time before a jury. Harrison once again prevailed; however, based on the prior decision of this court, the trial judge granted a subsequent motion by Dorsey for judgment notwithstanding the verdict. Harrison appeals that ruling. Dorsey cross-appeals, enumerating as error the denial of his motion for summary judgment.

The salient facts are undisputed. Harrison located a house he was interested in purchasing and inquired of certain neighbors, the Glenns, for information regarding its ownership. The Glenns informed Harrison that the house belonged to Mrs. Mary Close and suggested that he seek the assistance of their son Lewis, who was the sales manager of a real estate firm owned and operated by Dorsey, in ascertaining whether Mrs. Close might be interested in selling. Harrison did so, whereupon Lewis Glenn contacted Mrs. Close and learned from her that she would be willing to sell the property for a “net” price of $450,000. Glenn communicated this information to Harrison, informing him that the addition of 6 percent sales commission to this asking price would bring the total purchase price to $477,000. Harrison testified that he thought $477,000 was “too much money” but acknowledged that he nevertheless instructed Glenn to arrange for him to see the house. Glenn made such arrangements, and Mr. and Mrs. Harrison subsequently viewed the house in his company.

As a result of further discussions with Glenn at the time of the showing, Harrison came to the realization that Glenn expected him to pay the 6 percent commission on the sale. In response, he told Glenn, “I have a problem with that”; and from that point on he had no further dealings with Glenn in connection with the transaction but negotiated with the seller directly. Harrison ultimately purchased the house for $400,000. At that time, he tendered a check to Dorsey in the amount of $5,000 as payment for Glenn’s services; however, that check was returned uncashed. In the present action, Dorsey, as plaintiff, has declined to seek any recovery for Glenn’s services on the basis of quantum meruit, electing instead to proceed solely on the basis of an alleged contract for payment of a 6 percent commission.

Dorsey contends, and the trial court evidently agreed, that the evidence presented at the second trial was not materially different from the evidence presented at the first, with the result that this court’s prior decision in the case must be deemed conclusive on the issue of whether Harrison became contractually obligated to pay a 6 percent commission. Harrison, on the other hand, contends that the evidence presented at the two trials was materially different in that there was some evidence at the first trial suggesting that he had accepted additional services from Glenn subsequent to the showing, whereas there was no such evidence at the second trial.

In the first trial, Dorsey introduced into evidence a letter he had written to Harrison in which he expressed the understanding that Harrison had continued to utilize Glenn’s services after the showing by “ask[ing] [Glenn] for house plans, which [Glenn] secured.” It was quite evidently on the basis of this purported conduct that this court reached the conclusion in the previous appearance of the case that a contract to pay a commission was implied by the parties’ conduct as a matter of law. See Dorsey v. Harrison, supra at 779. During the second trial, however, this letter was excluded, and it was established that the request for the plans had been made by Harrison’s wife rather than by Harrison himself. Although Harrison acknowledged having viewed the plans after his wife procured them, there was consequently no evidence at the second trial which could in any way be construed as conflicting with his testimony that he had no further personal involvement with Glenn whatever subsequent to the showing. Additionally, we note that Glenn acknowledged during the second trial that he did not explicitly tell Harrison that he was expecting him, as purchaser, to pay the commission on the sale until the showing had taken place. Finally, we note, in passing, that Glenn further acknowledged during the course of the second trial that the total amount of time he had expended on the transaction was only five or six hours, meaning that Harrison’s offer to pay Dorsey $5,000 for Glenn’s services represented compensation at the rate of approximately $1,000 per hour. Held:

1. We believe the jury would have been authorized to infer from the evidence introduced at the second trial both that Harrison had no direct involvement in the procurement of the house plans from Glenn subsequent to the showing and that he was not responsible for his wife’s actions in this regard. Moreover, we do not, under the circumstances, regard the mere fact that Harrison viewed the plans after his wife procured them as being sufficient to establish his acceptance of Glenn’s terms as a matter of law. Consequently, we conclude that the evidence presented at the second trial of this case was materially different from the evidence presented at the first, with the result that the jury’s verdict in the second trial is not at odds with the prior judgment of this court. The “law of the case” rule (see OCGA § 9-11-60 (h)) prevents the re-adjudication of factual issues in a case only where the evidentiary posture of the case has not changed since the prior adjudication was made. See Modern Roofing &c. Works v. Owen, 174 Ga. App. 875 (1) (332 SE2d 14) (1985). “Thus, if subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.” Id. at 876. Having concluded that the evidence presented at the second trial did not demand a finding that Harrison entered into an agreement with Glenn, explicitly or implicitly, to pay a 6 percent commission on the purchase of the house, we accordingly hold that the trial court erred in granting Dorsey’s motion for judgment notwithstanding the verdict.

Decided October 21, 1987

Rehearing denied November 17, 1987

John A. Chandler, Kimberly L. Woodland, for appellant.

Paul H. Anderson, for appellee.

2. In his cross-appeal, Dorsey contends that the trial court erred in denying his motion for summary judgment. However, it is well settled that the denial of a motion for summary judgment becomes moot after the case has proceeded to resolution by trial. See Mallory Realty Co. v. Jones, 163 Ga. App. 6, 7 (1) (292 SE2d 463) (1982); Rich v. Strickland, 168 Ga. App. 107, 108 (308 SE2d 206) (1983). Harrison’s motion to dismiss the cross-appeal is accordingly granted.

Judgment reversed in Case No. 75163; appeal dismissed in Case No. 75164.

Carley and Benham, JJ., concur.


text:
    74415.
    CUMMINGS et al. v. GRUBB et al.
    (363 SE2d 167)
   Beasley, Judge.

Larry and Barbara Cummings brought an action for the wrongful death of their son, Bryan, against Charles and Dianne Grubb and their son David. The complaint alleged that as a result of the negligence of the Grubbs, Bryan received a wound to his abdomen from which he died.

The Grubbs, by answer, denied the allegations of the complaint and set forth various defenses, including assertions that they were not negligent, that the death of Bryan was a result solely of his own negligence or was an accident, and that any negligence of the defendants was not the proximate cause of any damage to plaintiffs.

There was extensive discovery by both sides, reconstructing what follows. The Grubbs are across-the-street neighbors of the Cummingses whose sons Bryan (age 12) and Jeff (age 16) were friends of David Grubb and frequent visitors at the Grubbs’ home. Dianne Grubb had told Larry Cummings that his children were welcome at any time. Between 9:30 and 10:00 on the evening of June 29,1985, the two Cummings boys were visiting at the Grubbs. The Grubbs’ house had a porch-deck with a wooden rail and steps. The porch was several feet above the ground, and in front of it extending approximately to the floor of the porch were several Red Tip Photinia shrubs which a few weeks before had been pruned by Charles Grubb’s brother. The branches were cut off but not pointed and many stood straight up.

At the time of the boys’ visit it was dark but there was a street light nearby which illuminated the yard. According to one witness the railing, yard and bushes could be seen. There was also a porch light which was turned on by Dianne Grubb but turned off by the visitors on the porch perhaps twice and remained off.

There were five teenagers sitting on the porch conversing, David Grubb, Bryan and Jeff Cummings, Lea Andrews and Greg Dover. They were laughing but not rowdy and engaging in no horseplay or pranks. Bryan was sitting on the porch rail. According to Lea Andrews “[w]e was telling jokes, and Bryan told a joke and flipped his leg over and jumped down and fell on the ground. We was laughing, and it sounded like he laughed once. He jumped up and ran to the middle of the street, ran around in a circle about three times and said, Jeff, it hurts, and then he went home, walked sort of fast.” Explaining what happened she related: “It was real fast, he swung his leg over, and it looked like he jumped. He could have fell, but it looked like he jumped.” In response to questions she replied that it did not look like Bryan slipped and that in her opinion “he jumped.”

The other individuals, with the exception of Greg Dover, did not see anything until Bryan had landed. They related he grunted, it sounded like he got up and then he walked off. They did not realize he was hurt even though he said words to that effect since he often joked about being injured. Greg Dover by deposition related that “the next thing I knew, Bryan had just told a joke and he was laughing, picked his feet up, swung them up and over the railing, and jumped off towards the yard.” He stated it was not obvious to him that Bryan had been injured; “He let out a muffled laugh when he landed into the bush. I saw that he landed into the bush, and I didn’t think he was hurt.”

When Bryan reached home he told his father he had been injured and revealed a puncture wound in his abdomen. Larry Cummings testified that Bryan told him “my foot slipped and I fell on a stick.” An ambulance was called; Bryan was taken to the hospital where he died the following morning.

After discovery, defendants moved for summary judgment which after a hearing was granted by the trial court. Plaintiffs appeal from that judgment.

On appeal, as in the lower court, plaintiffs contend defendants were negligent in that they: consumed alcoholic beverages that evening; encouraged Bryan to jump by example; maintained a loose rail on the porch; failed to keep the porch light on; trimmed the shrubs so that the branches were uneven, sharp and protruding upward; failed to properly supervise their teenage guests and warn them of danger.

As to consuming alcohol the adult defendants freely admitted it, but the evidence was they were not intoxicated and alcohol played no part in the tragic event.

As for setting a bad example, the only prior occasion where anyone jumped over the railing was when Greg Dover vaulted over it. Any negligence on his part could not be attributed to defendants.

The only evidence with regard to defective railing was Lea Andrews’ testimony that “three or four weeks before” Dianne Grubb told her and Jeff not to sit on the rail “because some of the boards may be loose.” Those at the scene of the incident stated the rail was in good shape; there was nothing to indicate the railing was loose, broken or damaged. The proof establishes that defective railing was not a contributing factor in the injury Bryan received.

The absence of a porch light played a part only insofar as the deceased child’s appreciation of danger might be involved. The proof showed Bryan was a frequent guest at the Grubbs’ home and of necessity had to be aware of the shrubs.

Whether the negligence of a child under 14 would serve to bar recovery is a question for the jury. See Ashbaugh v. Trotter, 237 Ga. 46, 47 (226 SE2d 736) (1976); Sturdivant v. Polk, 140 Ga. App. 152, 154 (3) (230 SE2d 115) (1976). But this does not automatically require a denial of summary judgment for if the child’s negligence is the sole proximate cause of the injury then there can be no recovery as a matter of law.

The teenage children were not misbehaving and there are no factors which implicate any supposed failure to supervise in Bryan’s death. All the evidence points to the cause of his death based on a sudden impulsive action which any bystander would have been powerless to anticipate or prevent. Even if the deceased had been instructed not to sit on the porch rail it cannot be said that “but for” that failure the incident would not have occurred. The cause was not sitting on the rail but in jumping off into the adjacent shrubbery. Any alleged failure to generally supervise is too remote to be considered a legal cause.

The last issue is whether the trimming of the shrubs created a condition which the defendants had a duty to remedy or of which to give specific warning.

Bryan was a licensee. OCGA § 51-3-2; Stanton v. Grubb, 114 Ga. App. 350, 351 (1) (151 SE2d 237) (1966); Bryant v. Rucker, 121 Ga. App. 395 (173 SE2d 875) (1970); Higginbotham v. Winborn, 135 Ga. App. 753, 755 (1) (218 SE2d 917) (1975). “The occupier is subject to liability to a licensee for injury caused by a condition on the property if the occupier (a) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not realize the danger; and (b) fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and risk involved; and (c) the licensee does not know or have reason to know of the condition and the risk.” Patterson v. Thomas, 118 Ga. App. 326 (163 SE2d 331) (1968). In Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 527 (317 SE2d 853) (1984), we compared this test with the one adopted by our Supreme Court regarding artificial conditions highly dangerous to trespassing children. See Gregory v. Johnson, 249 Ga. 151, 154 (289 SE2d 232) (1982). Condition (b) of that test is very similar to (a) of the licensee test and reads: “the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children ...”

Photographs of the shrubs show their limbs were clipped off squarely with no sharp points and no unusual protrusions. As so portrayed, there was no dangerous condition of which the defendants knew or should have known involving an unreasonable risk of harm to Bryan, as a licensee, nor should they have expected him not to have realized the danger so as to require preventive action or a warning on their part. “One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” Ramsey v. Mercer, 142 Ga. App. 827, 829 (237 SE2d 450) (1977), quoting earlier cases.

Decided November 17, 1987.

Marshall M. Bandy, Jr., for appellants.

William P. Claxton, F. Gregory Melton, for appellees.

That being true, none of the grounds of negligence involved breach of a duty which could be the proximate cause of Bryan’s death and the grant of summary judgment for defendants was authorized.

Judgment affirmed.

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

       This statement was hearsay and inadmissible insofar as it was testified to by one who stood to gain by its admission. Irby v. Brooks, 246 Ga. 794, 796 (273 SE2d 183) (1980); Gentile v. Miller, Stevenson & Steinichen, 182 Ga. App. 690, 692 (1) (356 SE2d 666) (1987), rev’d on other grounds, 257 Ga. 583 (361 SE2d 383) (1987); Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 176 (3) (355 SE2d 104) (1987). Thus it would not create an issue of fact as to whether Bryan jumped or fell off the porch.


text:
    74735.
    ANTHONY v. THE STATE.
    (363 SE2d 171)
   Beasley, Judge.

Defendant was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1)) and appeals on the sole ground that the denial of his oral motion in limine, made at the commencement of trial concerning a prior Kansas conviction of conspiracy to sell cocaine, was error. The state had notified defendant after arraignment of its intention to introduce evidence of the earlier occurrence.

The motion contended that the 1981 conviction, based on an undercover agent’s purchase of cocaine arranged by defendant, was not similar to the 1986 trafficking charge on trial, which was based on defendant’s possession of nearly 800 grams of pure cocaine found in his suitcase in the trunk of a borrowed automobile. See Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952).

It is not necessary, however, to determine whether the proof complied with Bacon and the cases developing the principle since. The earlier incident was shown at trial not only by the introduction of a copy of the Kansas information and conviction, the subject of the motion in limine; it was also admitted by defendant in a conversation with the officers at the time of the traffic stop. The making of this statement was not contested by defendant, but its exclusion was sought solely on the same ground as the conviction itself had been objected to in the motion.

We consider the statement first. Defendant was stopped for erratic driving by a state trooper, who then obtained defendant’s consent to search the car. Defendant claimed not to have a key to the trunk of the car, and the trooper had decided to tow the car in so that a key could be made. At this point, the trooper was discussing this with another officer, who asked defendant if he had ever been arrested before. Defendant stated that he had, for conspiracy to distribute cocaine.

Defendant’s defense to the present charge was that the person from whom he borrowed the car had placed the suitcase with the cocaine in the trunk and he was unaware of its presence. The state thus wished to show the previous conviction, both through the statement of defendant and the information and conviction, to show knowledge and intent.

Decided November 17, 1987.

Bobby Lee Cook, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, for appellee.

While evidence of another crime is generally inadmissible, “where such evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof, such evidence is admissible as an exception to this general rule.” Spurlin v. State, 228 Ga. 2, 5 (4) (183 SE2d 765) (1971); Graham v. State, 171 Ga. App. 242, 254 (14) (319 SE2d 484) (1984).

All of the circumstances connected with the arrest of a defendant, including any statements made by him, are admissible. Bixby v. State, 234 Ga. 812, 813 (1) (218 SE2d 609) (1975); Turner v. State, 178 Ga. App. 274 (3) (342 SE2d 759) (1986); Scott v. State, 172 Ga. App. 725, 726 (1) (324 SE2d 565) (1984).

This being so, the copies of the Kansas information and conviction become merely cumulative of otherwise admissible evidence, and its allowance in the face of the objection made was not error. OCGA § 24-1-1 (2); Carpenter v. State, 252 Ga. 79, 80 (1) (310 SE2d 912) (1984).

Judgment affirmed.

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


text:
    75754.
    SHEFFIELD v. KIRKLEY.
    (363 SE2d 68)
   Deen, Presiding Judge.

Louise Kirkley brought suit against Betty Jean Sheffield to recover damages for the wrongful death of her husband, Raymond Kirkley, Sr. Kirkley was killed in an explosion which occurred at The Auto Clinic, a business owned and operated by Betty Jean Sheffield and managed by her husband, Warren Sheffield. Shortly before the explosion an employee directed Kirkley to the area where Sheffield was working. The explosion resulted from the negligence of Warren Sheffield when he attempted to connect an oxygen tank with a maximum of 2,015 pounds per square inch pressure into a smaller acetylene tank which had a 450 pounds per square inch pressure. The jury returned a verdict in favor of Kirkley’s widow in the amount of $34,500. Betty Jean Sheffield appeals following the denial of her motion for a new trial contending that the trial court erred in failing to direct a verdict because there was no evidence that she was the principal of her husband, and she also asserts the general grounds.

1. The evidence showed that Warren Sheffield formerly operated a business known as the Eastman Auto Center. He closed it in 1982 after encountering financial difficulties. Shortly thereafter, in the latter part of 1982, Sheffield opened The Auto Clinic at a new location, and a business license was issued in March of 1983 listing Sheffield’s wife, Betty Jean, as the owner. An employee of The Auto Center testified that appellant posted the business license and “she said she was going to be our new boss lady.” He further testified that Warren Sheffield had told him before the business opened that they “were going to have a new boss lady.” The employee stated that Mrs. Sheffield came by the business every morning, would help him write out repair orders when her husband was not there, and would write down the pricing.

On cross-examination appellant identified Schedule “C” of the Sheffields’ joint federal income tax return for 1982 which shows that she was the proprietor of a business known as The Auto Clinic, which was operated for four months in 1982. Schedule “C” of the 1983 tax return also shows that she was the owner of The Auto Shop. The latter tax return was prepared by an accountant selected by her. She also testified that she signed the checks that accompanied the quarterly tax returns.

The vice-president of a bank testified that the signature cards for The Auto Shop’s account shows that both appellant and her husband were authorized to sign checks written on the account.

The evidence as set forth above was ample to withstand a motion for a directed verdict. “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 [Cit.]” Wilson v. Pickels, 181 Ga. App. 293, 295 (352 SE2d 208) (1986). “In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the ‘any evidence’ test. [Cits.]” Speir v. Williams, 146 Ga. App. 880 (1) (247 SE2d 549) (1978). The trial court did not err in denying the motion for a directed verdict.

2. The remaining enumeration of error asserting the general grounds is also without merit. “[T]he only query is whether the evidence supported the verdict. [Cits.]” Daniels v. Hartley, 120 Ga. App. 294 (170 SE2d 315) (1969). Reviewing the evidence presented at trial, we find there was sufficient evidence presented, which if believed by the jury, authorized the verdict in favor of Mrs. Kirkley.

Decided November 17, 1987.

J. Stanley Smith, Jr., for appellant.

Wilton D. Harrington, for appellee.

Judgment affirmed.

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