text:
    75320.
    MATTOX v. THE STATE.
    (366 SE2d 158)
   Pope, Judge.

James A. Mattox was indicted for murder but convicted of voluntary manslaughter in the shooting death of his wife. Defendant enumerates fourteen errors, none of which have merit.

1. Construed most strongly in favor of the verdict, the evidence of record is such that any rational trier of fact could have found defendant guilty of voluntary manslaughter beyond a reasonable doubt. See Thomas v. State, 141 Ga. App. 192 (233 SE2d 41) (1977); Nolen v. State, 124 Ga. App. 593 (184 SE2d 674) (1971); see also May v. State, 146 Ga. App. 416 (3) (246 SE2d 432) (1978). The trial court did not err in denying defendant’s motion for directed verdict. Holt v. State, 157 Ga. App. 405 (1) (278 SE2d 59) (1981).

2. The trial court gave the following charge on the law relating to incriminatory statements: “A confession is direct evidence, but an incriminatory statement is indirect or circumstantial evidence and it must exclude every other reasonable theory except that of the guilt of the accused. If you find that the defendant made an incriminatory statement with reference to any of his acts or conduct, the Court instructs you that an incriminatory statement, applied to a criminal statement, is one made by a defendant of a fact or facts pertinent to the issue or tending, in connection with other facts and circumstances, to prove the guilt of the accused or to disprove some defense set up by the accused. An incriminatory statement will not of itself authorize a conviction and before you would be authorized to convict, there must be other proven facts and circumstances which satisfy your mind beyond a reasonable doubt of the guilt of the accused. All incriminatory statements must be scanned with great caution. They must also have been freely and voluntarily made without the slightest hope of benefit or the remotest fear of injury and if not thus made, they cannot be considered. I charge you further that if the defendant made an incriminatory statement, but such statement was accompanied by explanations or declarations which showed excuse, justification or mitigation tending to justify his acts or conduct, then no presumption of the defendant’s guilt would arise.” Defendant contends that the last sentence of the foregoing charge is unconstitutionally burden-shifting. That is, although this charge is termed in the negative, a reasonable juror could infer that the reverse of the charge is true, viz., that in the absence of an explanation by defendant showing excuse, justification or mitigation, a presumption of guilt would arise.

We find the language complained of, when considered in isolation, could potentially be construed as burden-shifting and, thus, disapprove of its use. See, e.g., Noggle v. State, 256 Ga. App. 383 (4) (349 SE2d 175) (1986). “ Tf a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. (Cit.) This analysis “requires careful attention to the words actually spoken to the jury ... , for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom [v. Montana, 442 U. S. 510, 514 (99 SC 2450, 61 LE2d 39) (1979).]’ ” Melton v. State, 175 Ga. App. 472, 474 (333 SE2d 682) (1985), quoting Francis v. Franklin, 471 U. S. 307, 315 (105 SC 1965, 85 LE2d 344) (1985); see also Flannigan v. State, 139 Ga. App. 590 (1) (229 SE2d 98) (1976).

Assuming arguendo that a reasonable juror could potentially have interpreted the subject language as creating an unconstitutional presumption, we find no prejudice to defendant’s substantial rights under the circumstances in this case. The trial court thoroughly and correctly charged the jury as to the burden of proof in a criminal case. More importantly, however, the record evidence shows without dispute that defendant’s incriminatory statement was accompanied by an explanation excusing culpability, viz., that the shooting was accidental. Therefore, we find no basis for a reasonable juror in this case to have interpreted the questioned charge as creating an Unconstitutional presumption. It is clear to us beyond a reasonable doubt that any error in this regard did not contribute to the verdict of guilty and thus was harmless. See Lewis v. State, 180 Ga. App. 890 (2) (351 SE2d 100) (1986); Rose v. Clark, 478 U. S. __ (106 SC 3101, 92 LE2d 460) (1986); see also Williams v. Kemp, 255 Ga. 380 (338 SE2d 669), cert. den., 92 LE2d 744 (1986).

3. Under the circumstances in this case, we find no error in the trial court’s ruling that defendant voluntarily consented to the warrantless search of his residence. See Dean v. State, 250 Ga. 77 (2a) (295 SE2d 306) (1982).

4. Defendant’s unsupported assertion that he “believes” that the State’s case file contains certain exculpatory information “which would have been helpful to him in his defense and which was not furnished to him during the course of the trial” provides no basis for reversal of his conviction. See, e.g., Wallin v. State, 248 Ga. 29 (6) (279 SE2d 687) (1981); Baker v. State, 245 Ga. 657 (3) (266 SE2d 477) (1980); see also Barnes v. State, 157 Ga. App. 582 (2) (277 SE2d 916) (1981).

5. We find it highly probable that, in light of the charge as a whole, the trial court’s incidental use of the word “confession” in its jury instructions relating to incriminatory statements (see Division 2, supra) did not contribute to the verdict in this case. E.g., Richards v. State, 251 Ga. 447 (1) (306 SE2d 302) (1983); Golden v. State, 250 Ga. 428 (4) (297 SE2d 479) (1982), cert. den., 460 U. S. 1046 (1983).

6. We find no error in the trial court’s striking, sua sponte, a question by defense counsel to defendant’s daughter, and her answer thereto, concerning her opinion as to defendant’s intent in shooting the victim. See Boyce v. State, 184 Ga. App. 578 (3) (362 SE2d 229) (1987).

7. Defendant’s remaining enumerations of error are either riot supported by proper objection or not. supported by the record on appeal and thus provide no basis for reversal.

Judgment affirmed.

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

Decided January 26, 1988

Rehearing denied February 12, 1988

John R. Calhoun, for appellant.

Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.

       Substituting the term “inference” in lieu of the term “presumption” would appear to cure this infirmity. See Wilson v. Jones, 251 Ga. 23 (302 SE2d 546) (1983).


source: Caselaw Access Project

author: Sognier, Judge. Beasley, Judge,

license: Public Domain

text:
    75365.
    CARVER v. THE STATE.
    (366 SE2d 314)
   Sognier, Judge.

Appellant was convicted of standing on a highway for the purpose of soliciting business from the occupant of a vehicle, in violation of OCGA § 40-6-98 (b). On appeal he contends the trial court erred by denying his motion for a directed verdict of acquittal, based on insufficiency of the evidence.

The evidence disclosed that pursuant to a request from the Madison County sheriffs office, Greg Owen, a GBI agent, arrived at the town square in Danielsville, Georgia, about 7:35 a.m., March 14, 1987, to monitor activities of the Ku Klux Klan. Appellant and a few other members of the Klan had been passing out copies of the “Klansman” on the town square the preceding day, and were present when Owen arrived. Owen informed appellant that if he stepped into the street he would be arrested for violating OCGA § 40-6-98, and appellant stated that he understood. A few minutes later appellant walked toward an intersection and stood on the sidewalk. As a car with three young men approached, appellant stuck his arm in the air, the car stopped momentarily, and appellant handed one of the occupants a newspaper; Owen had followed appellant and arrested him immediately. Owen testified appellant’s feet were in the roadway when he passed the paper to the car’s occupant, but he saw no money exchange hands. Appellant testified and agreed basically with Owen as to what occurred; however, appellant denied stepping into the street when he gave the newspaper to the young man in the car. The “Klansman” newspaper being distributed was dated June-July 1985. The masthead showed a price of $1.00, and the back page contained a “coupon blank” application for membership.

OCGA § 40-6-98 (b) provides: “No person shall stand on a highway for the purpose of soliciting employment, business, or contributions from the occupant of any vehicle.” We have held that “there are three elements essential of proof for a conviction of this offense: (1) that the person accused be ‘on a highway,’ (2) ‘for the purpose of soliciting,’ (3) ‘from the occupant of any vehicle.’ ” Crook v. State, 156 Ga. App. 756 (275 SE2d 794) (1980). If the evidence fails to meet any one of these requirements, it is insufficient to sustain a conviction. In the instant case, even accepting Owen’s testimony that appellant momentarily stepped into the roadway as true, there is no evidence that appellant was soliciting business, as alleged in the accusation; on the contrary, there is no evidence that he even spoke to the occupants of the vehicle, but merely handed them a copy of the newspaper. In this regard, we held in Robinson v. State, 177 Ga. App. 848, 849 (341 SE2d 497) (1986), that merely acting as a volunteer distributor of literature which informs the public of the candidacy of one running for public office does not constitute the conducting of a “business” activity or solicitation for purposes of “business.” We find no distinction between passing out literature for a political candidate and passing out literature about the Ku Klux Klan which would make the latter activity fall in the category of soliciting “business,” since “business” signifies the employment or occupation in which a person is engaged to procure a living. Id. The evidence disclosed that appellant was an employee of A T & T, and at the time of his arrest was acting as a volunteer, on his own time and without remuneration of any kind, in passing out copies of the “Klansman.” Thus, he was not engaged in soliciting “business,” as we have defined that term for the purpose of OCGA § 40-6-98, and we need not consider whether appellant was soliciting employment or contributions, because he was charged specifically with soliciting business, and nothing else.

Decided January 27, 1988

Rehearing denied February 12, 1988

Sam G. Dickson, for appellant.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assis tant District Attorney, for appellee.

Since the evidence is insufficient to support appellant’s conviction, the trial court erred by denying his motion for a directed verdict of acquittal. Robinson, supra.

Judgment reversed.

McMurray, P. J., concurs in the judgment only. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but not in all that is written. OCGA § 40-6-98 (b) prohibits standing on a highway “for the purpose of soliciting . . . business.” It is not confined to defendant’s business or one for which he receives remuneration. It might be someone else’s business, for which the solicitor is donating his own time and efforts. The solicitor’s relationship to the business is not crucial; he need not profit. Rather what controls is whether the solicitation is for business.


author: Beasley, Judge.

text:
    75368.
    CONTINENTAL CORPORATION v. DEPARTMENT OF TRANSPORTATION.
    (366 SE2d 160)
   Beasley, Judge.

This condemnation appeal is from the second trial, which was prompted by Continental Corp. v. Dept. of Transp., 172 Ga. App. 766 (324 SE2d 588) (1984), wherein the background facts are set out.

1. Enumerations 1, 2, and 4 deal with condemnee Continental’s claims that the trial court erred in several respects relating to the issue of lost rentals.

The original declaration of taking was against both owner Continental and lessee American Dairy Queen Corporation. A fast food restaurant was operated on the property until 1979 when it was closed for reasons unrelated to the later condemnation. Dairy Queen continued to pay rent and property taxes until the condemnation taking in 1981.

During the first trial, Continental sought a determination by the court that the lease was not subject to termination based on the condemnation, thus preserving its right to rentals from Dairy Queen for the term of the lease. The lease allowed termination if the property or “any substantial part thereof’ was taken or condemned. The trial court found “as a matter of fact that the taking described in this eminent domain proceeding constitutes a substantial part of the land and the improvements thereon . . . and, . . . under the language of Paragraph 20 . . . American Dairy Queen had the right to exercise its option to terminate said Lease. ...[;] that the Department of Transportation through this action of eminent domain has taken a substantial part of the demised premises and as such American Dairy Queen Corporation had the right under said Lease to terminate the Lease as of the date the Department . . . required possession of the condemned property ... [;] American Dairy Queen Corporation timely and properly exercised the option to terminate . . . .”

In the first appeal, this Court was asked to address the issue of these findings being put before the jury. Id. at 768 (3). The ruling that there had been a substantial taking which would permit Dairy Queen to terminate the lease was not appealed.

During the second trial, Continental moved for a directed verdict at the close of all evidence as to the issue of condemnor’s liability for lost rents, on the ground that the court order in the first trial was the “law of the case.” Its denial is enumerated as error, as are the trial court’s failure to give a jury instruction on the court’s findings, and its denial of the motions for new trial and judgment notwithstanding the verdict on this ground.

First of all, the requested jury instruction was given. Second, the “law of the case rule” has formally been abolished except as it applies to rulings by one of the appellate courts; they are binding in all subsequent proceedings, including a second trial. OCGA § 9-11-60 (h); Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 138 (2) (308 SE2d 378) (1983). Nevertheless, the earlier ruling by the trial court on whether the taking was substantial enough to allow the termination of the lease was not appealed and is not the question. What is at issue is whether that ruling gives condemnee the right as a matter of law to recover rents lost as a result of the termination. It does not, because the latter does not necessarily follow from the former. More must be established.

There are two elements of just and adequate compensation for a partial taking of property by condemnation: (1) the market value of the portion actually taken, and (2) the consequential damage, if any, to the remainder. Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980). The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstances just prior to the time of the taking compared with its market value in its new circumstance just after the time of taking. Wright v. MARTA, 248 Ga. 372, 376 (283 SE2d 466) (1981).

Condemnee relies for its position on Carasik Group v. City of Atlanta, 146 Ga. App. 211 (246 SE2d 124) (1978). RFC, the lessee and operator of a restaurant, contended in the condemnation proceeding that it was entitled to a termination of its lease due to the condemnation by the city of a portion of the premises, including five parking spaces. It was held that the trial court was authorized to determine the question of the contract rights between the two competing condemnees and that it correctly concluded that the lease was properly terminated as a result of the partial taking. Where it erred, however, was in concluding as a matter of law that lessor was not entitled to damages arising from the lease termination. This court ruled that, since there was a lease termination, “the lessor, as the fee simple owner, has been further damaged by the taking.” Carasik, supra at 216. Carasik did not hold that the damages would necessarily be the lost rent. For one thing, mitigation would have to be considered, and that was not limited, as a matter of law or under the evidence in this case, to efforts to find a replacement tenant.

In a partial taking, the loss of a lease and the resulting loss of rental payments are not properly considered as damages as it relates to the actual property taken. Budd Land Co. v. Valdosta, 165 Ga. App. 534 (301 SE2d 699) (1983), citing State Hwy. Dept. v. Hood, 118 Ga. App. 720 (165 SE2d 601) (1968).

In Hood, DOT took a 33-acre strip from a 290-acre parcel, of which 200 acres were leased to a dairy operation. The taken property went through the remainder. There was evidence that the rental had been reduced and that the tenant would not renew the lease at its termination because of the changed condition of the property. The judge instructed the jury that if they found the owner was damaged by loss of all or part of the rental, he was entitled to recover “such loss of rent as a separate item of damages additional to the value of the property actually taken.”

In reversing, this court held: “The quoted charges were equivalent to an instruction that the jury might award compensation for the 33.8 acres of land actually taken plus any loss of income attributable to the taking. The court elsewhere . . . instructed the jury regarding their duty to award consequential damages, if any to the land remaining .... Let us examine the land here prior to the condemnation. The value of the land to the owner is the intrinsic value of the land itself. It will demand a certain price in the market place because it is suitable for certain uses by an owner or for rental for certain purposes, e.g., dairying or growing crops, or some other use. This is an important consideration in determining its market value. But the point is that when the owner of such land is compensated for the value of the land taken, at whatever that value may be, he is made whole. Likewise, when there is a remainder and the owner is compensated for its change in market value, if any, as a result of the taking, he is made whole. Rental value or diminished rental value for any purpose is no basis for compensation, or to be considered, except insofar as it helps to establish the property’s market value. [Cits.]” Hood, supra at 721-722. (Emphasis in original.) See DeKalb County v. Queen, 135 Ga. App. 307, 311 (10) (217 SE2d 624) (1975).

Thus, the trial court was correct in denying the motions for directed verdict, new trial, and jnov.

2. Condemnee enumerates as error the following objected-to jury charge: “In the event the condemnee . . . has any consequential damages as a result of the condemnation, then Continental Corporation is required to mitigate any such consequential damages in any way it can.” Condemnee contends that the standard for mitigation is “as far as practicable by the use of ordinary care and diligence.” OCGA §§ 51-12-11 and 13-6-5. It points out that a case cited in our first opinion describes this as “reasonable steps.”

In that prior appearance of this case, it was held that since this charge “was both a correct statement of the law and adjusted to the evidence, it was not error to give it.” Condemnee contends that this was obiter dictum and not binding. The statement was the ruling of the court, necessary to the decision and binding. OCGA § 9-11-60 (h). Moreover, the wording was harmless, even if too broad, because the only mitigation theory asserted by condemnor was a re-striping of the parking lot so as to recoup the lost spaces. This could not be regarded, as a matter of law, as unreasonable or beyond the cited code sections insofar as they apply to condemnation mitigation. See Dept. of Transp. v. Ladson Investments, 158 Ga. App. 687, 690 (3) (282 SE2d 171) (1981); Garber v. Housing Auth. of Atlanta, 123 Ga. App. 29, 31 (3) (179 SE2d 300) (1970).

Decided January 26, 1988

Rehearing denied February 12, 1988

J. Corbett Peek, Jr., James G. Peek, for appellant.

Michael J. Bowers, Attorney General, E. Hearst Roane, Jr., for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    75400.
    CRUMLEY v. THE STATE.
    (366 SE2d 171)
   Pope, Judge.

Kathy Renee Crumley brings this appeal from her conviction and sentence of theft by taking more than $500 from her employer. Held:

1. Construed most strongly in favor of the verdict, the evidence showed that an audit conducted by defendant’s employer, a retail store in Dalton, established that on 49 separate dates from December 1985 through June 1986 money was missing from a cash register which should have been included in the balance of the cash register at the end of the day. The pattern which was developed established that someone would void a transaction from the cash register, the paper cash register tape would be torn, and the void transaction would be missing from the paper cash register tape. The printout of the corresponding computer tape, if available, would show the specific transaction which was missing from the paper cash register tape. The specific transaction which was voided from the cash register would not appear on the paper cash register tape or the computer printout, indicating that the void transaction did not occur during the course of the day’s sales activity.

The evidence showed that defendant, an assistant manager, was the only employee who was present in the store on each of the specific occurrences. These thefts occurred regularly every week during the time in question except for three periods during which defendant was not working at the store. Most telling of these transactions occurred on June 25, 1986 when defendant had returned to work from a vacation and the store’s home office personnel conducted a surprise audit at closing time. Cash register no. 1 was found to have missing transactions which had been torn from the paper cash register tape. The cash register’s torn paper tape was missing transaction numbers 3590 and 3591. The missing receipt was found later that night along with a piece of paper used to slip into the cash register to record the void sale, in a garbage can in the rear of the store. The last transaction on the paper tape was number 3592 which was a “short reading” showing the amount of cash and checks tendered in the cash register. Transaction number 3590 was a “no sale” transaction and number 3591 was a void of a cash sale which listed four different items sold. In order for this void transaction to be a legitimate void transaction, there should have been an identical sale present on the cash register record of sales. A void should only occur to correct a previous mistake made on the cash register. This particular void transaction did not have a corresponding transaction on the cash register receipt records. Normal procedure required that a receipt would be attached to a void card showing the void sale as well as the receipt showing the mistake which would be generated by the cash register concerning this prior sale. This transaction would appear on the void card which would be inserted into the cash register and printed at the time of the void transaction. The required documentation was present for all voided transactions on this day except the transaction in question.

Defendant was confronted with the torn paper tape on the night of June 25th but denied any knowledge of it. She stated that another employee had operated cash register no. 1 all night. This employee was called back from her home and stated that she did not ring up any sale as the one on the missing transaction. She further stated that defendant had taken over operation of this cash register after she, the employee, had had problems operating the cash register. The missing cash was found a few days later in a box under the counter of the cash register where defendant had been standing that night.

Cashier identification numbers used by personnel at the store when operating the cash register could not be relied upon to establish who operated the register in question. On the night of June 25th, the other employee operated cash register no. 1, but denied ringing up the subject void sale. Defendant testified that she (defendant) did the final balance on cash register no. 1 on that date, but her cashier number does not appear on the cash register tape.

Evidence of mere presence at a place where the offense is being committed, and there being nothing to show participation of the defendant in the illegal act, is insufficient to authorize conviction. Huncke v. State, 137 Ga. App. 299 (2) (223 SE2d 492) (1976). “To warrant a conviction on circumstantial evidence, proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. The evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. In such cases it is not necessary that the circumstances remove every possibility of the defendant’s innocence.” (Citations omitted.) Id. at 301. In our view, the evidence satisfied this standard and was such that any rational trier of fact could have found defendant guilty as charged beyond a reasonable doubt. See, e.g., Exley v. State, 180 Ga. App. 821 (350 SE2d 829) (1986); Evans v. State, 162 Ga. App. 43 (290 SE2d 148) (1982); cf. Wood v. State, 156 Ga. App. 810 (1) (275 SE2d 694) (1980).

Decided January 29, 1988

Rehearing denied February 12, 1988

Charles G. Haldi, Jr., for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

2. During cross-examination of defendant at trial, the State asked: “Give me another person to be there when all these thefts occurred.” Defense counsel objected “both to the form of the question and the relevancy. ...” The objection was overruled. On appeal, defendant argues that the question improperly shifted the burden of proof. “Where the objection urged below is not argued here it must be treated as abandoned and where an entirely different objection is presented in this court, we do not consider it since we are limited to those grounds urged in the trial court.” Carney v. State, 134 Ga. App. 816, 817 (216 SE2d 617) (1975); e.g., Cain v. State, 178 Ga. App. 247 (3) (342 SE2d 742) (1986); Moore v. State, 176 Ga. App. 251 (1) (335 SE2d 716) (1985).

3. We find no abuse of discretion in the trial court’s allowing the State to use a chart (not tendered as evidence) which illustrated and summarized some 49 State’s exhibits notwithstanding the chart’s size (10’ x 15’) and its proximity to the jury box. See Vaughn v. State, 173 Ga. App. 716 (6) (327 SE2d 747) (1985); McClure v. State, 163 Ga. App. 236 (3) (293 SE2d 496) (1982); Long v. Serritt, 102 Ga. App. 550 (1) (117 SE2d 216) (1960); Agnor's Ga. Evid. (2nd ed.), § 15-1.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    75443.
    ASSOCIATED HEALTH SYSTEMS, INC. v. JONES.
    (366 SE2d 147)
   Birdsong, Chief Judge.

The Crestview Nursing Home appeals from the judgment of the trial court, entered on a jury verdict, for plaintiff Ernest Jones, administrator of the estate of D. L. Jones. In May, 1985, Leon Phillips and D. L. Jones were “intermediate” residents of the Crestview Nursing Home, who required some supervision, but not “around the clock nursing supervision.” On the morning of May 24, 1985, a nurse’s aide making rounds at approximately 7:15 a.m. found D. L. Jones had been beaten. Jones said Phillips had beaten him. Phillips had a history of prior altercations with other patients in the nursing home. In July 1984, in the TV room, Phillips had struck Mr. Appling with his open hand. Previous to that assault, Phillips had been involved in “verbal aggression. . . David Copple, a psychologist and social worker at Crestview, said he talked with Phillips about why this was unacceptable behavior. On April 8, 1985, Phillips hit Mr. Harper, another resident, with a shoe when Harper cursed while they were watching television. Harper was taken to the hospital for observation and Phillips was taken to the “South Mental Health” clinic for evaluation. A psychiatrist prescribed “one milligram of Haldol” which they frequently gave to patients because “[i]t tends to calm patients down. It tends to make them less verbally aggressive ... it tends to slow them down.” Phillips was returned to Crestview after spending 20 to 30 minutes with the psychiatrist. Copple also took Phillips to see the psychiatrist again on April 15th.

On May 2, 1985, Phillips had a second altercation with Harper, his roommate, and struck him. Harper sustained no injuries but was moved out of Phillips’ room. The following day, May 3, Copple again took Phillips to South Mental Health for another evaluation. The psychiatrist ordered an increase in the dosage of Haldol from one milligram to two, and recommended that Phillips’ family be asked to visit him more often.

On May 24, after Jones had been beaten by Phillips, Jones was taken to the hospital. He died four days later, apparently due to natural causes and not as a result of the beating by Phillips. Crestview had documented these incidents so that they were known to Phillips’ personal physician when he visited him. After the incident on May 24 involving Jones, Phillips was taken to South Mental Health and they recommended his transfer to the Georgia Regional Hospital. After his transfer to that hospital, they attempted to return him to Crestview and Crestview refused to accept him.

Crestview had a psychiatrist on its staff who visited the facility once each week, but Copple never discussed Phillips with him or sought his advice on this matter. No restraint, isolation, or transfer of Phillips was recommended by anyone at Crestview or South Mental Hospital until May 24 when the clinic recommended his transfer to the Regional Hospital.

Appellee brought this action on a negligence theory, seeking special, general, and punitive damages. The jury returned a verdict in the amount of $782 in special damages, $50,000 general damages, and $200,000 in punitive damages. Crestview’s motion for new trial was denied and they filed this appeal. Held:

1. Crestview contends the trial court erred in denying its motion for new trial since there was no evidence of negligence because its ability to control Phillips was limited by Title 31, Chapter 8, Article 5. We agree that Article, OCGA § 31-8-100 et seq., known as the “Bill of Rights for Residents of Long-term Care Facilities,” does restrict a nursing home in actions it can take in restraining a resident, thus inhibiting its ability to protect other residents from an aggressive resident. It provides, inter alia: “(a) Each resident shall be free from actual or threatened physical restraints, isolation, or restrictions on mobility within or outside the facility grounds, including the use of drugs to limit mobility, except to the minimum extent necessary to protect the resident from immediate injury to the resident or to others. In no event shall restraints, restrictions, or isolation be used for punishment, incentive, behavior conditioning or modification, or for the convenience of the facility, (b) Restraints, restrictions, or isolation shall be used only subject to the following conditions: (1) Prior to authorizing restraints, restrictions, or isolation, the attending physician shall make a personal examination and individualized determination of the need to use such restraints, restriction, or isolation on that resident and shall specify a reasonable time for such use. . ... (2) In an emergency situation, restraints, restrictions, or isolation shall be authorized by the person in charge only to protect the resident from immediate injury to the resident or others and shall not be continued for more than 12 hours after the onset of the emergency without personal examination and authorization by the attending physician. . . .” OCGA § 31-8-109. We note that these proscriptions are addressed solely to control by use of “physical restraints, isolation, or restrictions on mobility.” See caption of OCGA § 31-8-109. The caption shows the legislative intent that in the use of the word “restriction,” its intent was to use it in the sense of a “restriction[] on mobility.” Sovereign Camp W.O.W. v. Beard, 26 Ga. App. 130, 131 (105 SE 629).

Hence, this statutory guidance does not encompass other forms of supervision, counseling, therapy, or restriction from access to specified areas, i.e., the TV room. This form of “restriction” from an area is not the type proscribed — “restriction” to a specified area — i.e., a bedroom. Restriction to a designated area is a restraint on mobility of the resident and in effect isolates the resident. This is prohibited. A restriction from an area where friction between the residents tends to develop, i.e., the TV room, exercise room, or even the dining room, may be used by management as necessary as an aid in behavioral control, since it does not isolate or restrain the mobility of the resident from other areas of the grounds and is not a form of physical restraint. Additional or increased observation or supervision over a resident is not proscribed. Relocation of the resident to an area of increased staffing or supervision is an alternative form of behavior control. The use of counseling by staff and family members, or physical therapy for an aggressive resident is permissible. If a resident develops a history of aggressive behavior, the resident’s personal physician should be asked for specific recommendations, and if the nursing home is dissatisfied with his recommendations, it can consult its resident doctor or psychiatrist for directions on permissible behavioral control of an aggressive resident. This list is not intended to be all inclusive or exclusive on permissible behavioral controls, but is indicative only of alternative forms of management of an aggressive patient in a nursing home, as contrasted to those proscriptions of OCGA § 31-8-109. The mere fact that a doctor, psychologist, or psychiatrist, has not volunteered to authorize the forms of restraints of OCGA § 31-8-109 does not discharge the duty of a nursing home to exercise “reasonable care and skill” for the care and protection of its residents from a physically aggressive resident. See OCGA § 31-8-108.

The care of aged persons in our society is a matter of great public concern. Many of our elderly require some, if not constant, care or supervision. And, where members of their family are unable to provide such attention, nursing home care sometimes is the only reasonable alternative. Governmental supervision of nursing homes has revealed that many are underfinanced, understaffed, and overcrowded. Residents therein, because of their age or ill health, or both, often are weak, frail, and susceptible to abuse and injury. Some residents have mental health problems as well as physical problems and may not be fully competent to manage their affairs, their daily activities, or to protect themselves from physically aggressive residents. Some residents are irritable, paranoid, belligerent, combative, and are capable of inflicting physical harm upon other aged residents. Nursing homes are not insurers of the safety of their residents, but owe them the duty of ordinary care to protect them from danger or injury which can reasonably be anticipated from the acts of other residents. Bezark v. Kostner Manor, 172 NW2d 424 (Ill. 1961); see also Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 674 (165 SE2d 179); see generally 7 CJS 186-187, Asylums, § 14; 40 AmJur2d 877, Hosp. & Asylums, § 36. If there is a known hazard or danger, there must also be a corresponding increase on the part of the nursing home in care and supervision to prevent injury to a resident. Bezark, supra at 426.

Generally, a person does not have a duty to control the conduct of another person, who is a potential tortfeasor, so as to prevent that person from harming a third person (Bradley Center v. Wessner, 161 Ga. App. 576, 580 (287 SE2d 716)), unless “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Restatement, Torts 2d, § 315. In the context of a nursing home, over and above the contractual obligation the nursing home assumed to take care of its residents, the State has imposed a statutory obligation for it to exercise “reasonable care and skill.” OCGA § 31-8-108. Hence, not only does the nursing home owe the contractual and statutory duty of care and protection to its residents to prevent harm to them, it owes the duty of supervision over any known resident whose propensity to cause harm to others is known or should have been known to the management. Bezark, supra at 426; see also Rum River Lumber Co. v. State, 282 NW2d 882 (Minn. 1979); Sylvester v. Northwestern Hosp., 236 Minn. 384 (53 NW2d 17). The general standard of care required of a nursing home is that degree of care, skill, and diligence usually exhibited by such homes generally in the community. Brown v. Univ. Nursing Home, 496 SW2d 503, 509 (Tenn. App. 1972); LeBlanc v. Midland Nat. Ins. Co., 219 S2d 251, 253 (La. App. 1969); MacAlpine v. Martin, 205 S2d 347, 349 (Fla. App. 1967); see Annot. 83 ALR2d 971, Patient Tort Liability of Nursing Homes.

In order to recover, the appellee had to show that appellants failed to do something which a reasonable person, guided by the above considerations which ordinarily regulated the conduct of affairs of a nursing home, would have done, or ought to have done, and failed to perform such responsibility. See Tolbert v. Tanner, 180 Ga. App. 441, 443 (349 SE2d 463). As a result of the relationship of a nursing home to a resident, appellant owed a duty to Jones not to subject him to an unreasonable risk of harm. Tolbert, supra at 443; Sutter v. Hutchings, 254 Ga. 194, 197 (327 SE2d 716); Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693). Appellant argues that ordinarily even if the nursing home was negligent, it would be insulated from liability by the intervention of the criminal act by a third party (Phillips) which is the proximate cause of the injury, for illegal acts by third parties are not reasonably foreseeable. McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592). This rule is inapplicable if a defendant had reasonable grounds for apprehending that such criminal act would be committed. Bradley Center, supra at 587; Warner v. Arnold, 133 Ga. App. 174, 176 (210 SE2d 350). And, as far as the scope of a defendant’s duty is concerned, it makes no difference if the act of the intervening third party is negligent, intentional, or criminal, for even criminal conduct is often reasonably to be anticipated. 2 Harper & James, The Law of Torts 1144, § 20.5. The jury was authorized to find from the evidence of Phillips’ involvement in prior altercations that Crestview knew or should have known of his propensity to resort to physical violence. Further the nursing home was subject to the double duty — (1) not to subject its residents to an unreasonable risk of harm, and (2) to supervise or otherwise manage lawfully any known resident who was prone to use assaultive behavior.

Whether appellants acted negligently in their care and supervision of their residents is a jury question. Tolbert, supra. The jury resolved the issue in favor of Jones, and the nursing home’s claim of compliance with a legislative enactment will not prevent a finding of negligence where a reasonable person would have taken additional precautions. Restatement, Torts 2d, § 288C. There was sufficient evidence of knowledge of the aggressive resident, and neglect on the part of the nursing home, to authorize a jury to find that Crestview failed to properly supervise a known physically aggressive resident, and to exercise reasonable care to protect the other residents from harm. See Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (337 SE2d 351). This enumeration is without merit.

2. Crestview alleges that appellee is not entitled to an award of punitive damages. We agree. OCGA § 51-12-5 authorizes an award of punitive damages where “there are aggravating circumstances, in either the act or the intention. . . .” “It is well established that that language means such damages ‘cannot be imposed in any case unless there is wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.’ ” Rossville Apts. Co. v. Britton, 178 Ga. App. 194 (1) (342 SE2d 504); accord Melton v. LaCalamito, 158 Ga. App. 820 (2) (d) (282 SE2d 393); Felton v. Mercer, 149 Ga. App. 358, 361 (254 SE2d 398); Bonds v. Powl, 140 Ga. App. 140, 143 (230 SE2d 133). “ ‘The latter expression [conscious indifference to consequences] relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.’ ” Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 875 (339 SE2d 266); accord Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447). “ ‘Mere negligence, although gross, will not alone authorize the recovery of punitive damages.’ ” Alliance Transp. v. Mayer, 165 Ga. App. 344, 345 (301 SE2d 290); BLI Constr. Co. v. Debari, 135 Ga. App. 299, 302 (217 SE2d 426). Ordinarily the imposition of punitive damages is an issue for the jury. However, the controlling criteria is whether there is any evidence to support such an award. Dempsey Bros. Dairies v. Blalock, 173 Ga. App. 7, 8 (325 SE2d 410). The proof offered in the instant case does not measure up to the standard authorizing imposition of punitive damages. We have found no evidence of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Accordingly, that portion of the judgment awarding punitive damages must be written off.

Decided January 20, 1988

Rehearing denied February 12, 1988.

Steven D. Harris, Nancy P. Phillips, Thomas S. Carlock, Allen F. Harris, for appellant.

James D. McGuire, Mark C. Harper, Mont fort S. Ray, for appellee.

3. We find no error in receiving in evidence four photographs taken of Mr. Jones while in the hospital, as they tend to show the extent of his injuries inflicted by Phillips. Evidence which is relevant to an issue is admissible and is not subject to an objection it might inflame the minds of the jury, or prejudice the jury, “ ‘and this is true even where the offered evidence is only cumulative. . . .’ ” Sprouse v. State, 242 Ga. 831 (3) (252 SE2d 173); accord Meeker v. State, 249 Ga. 780 (1) (294 SE2d 479).

4. The charge of the court on the bases of recovery of damages was full and fair when considered in its entirety. We find no support for appellant’s conclusion that one portion of the charge was confusing and was without evidence in the record to support the giving of the charge. The court’s charge was couched in terms that the jury could take into consideration “any injury . . . any physical and mental distress and suffering which he endured . . . any sense of shame, humiliation, or anguish ... if any.” This charge was given in connection with “general damages” which our Code says “are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.” OCGA § 51-12-2. We find no error. See County of Bibb v. Ham., 110 Ga. 340, 341 (35 SE 656).

Judgment affirmed on condition that the portion relating to award of punitive damages be stricken; otherwise, judgment reversed.

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


text:
    75514.
    ELBERT COUNTY v. GEORGIA INSURERS INSOLVENCY POOL.
    (366 SE2d 153)
   Birdsong, Chief Judge.

Elbert County filed an insurance claim for hailstorm damage to the county courthouse. The insurer was adjudged insolvent; Elbert County filed a claim against the Georgia Insurers Insolvency Pool Act, and when the claim was denied, filed suit. The trial court granted judgment on the pleadings to the Insolvency Pool, holding that the county, being a legal entity, is a “person” under OCGA § 33-1-2 (5) and, having a stipulated net worth of more than $1 million, is excluded from coverage by the Insurers Insolvency Act at OCGA § 33-36-3 (2) (F) as it stood at the time this claim arose. On appeal, the county urges that it is not a “person” so as to be excluded from coverage. Held:

The governing insurance statutes, § 33-1-2 (5), describing as “person” any other legal entities than the ones there named, and § 33-36-3 (2) (F) excluding from insolvency pool coverage any “person” with a net worth greater than $3 million ($1 million at the time this claim arose), are too unclear to require a finding that a county is a “person” in contemplation of the insurance laws. It is only default, by the omission of the word “county” or “political subdivision of the state” from § 33-1-2 (5), and the conclusion that it is “any other legal entity” than the ones named, that lead the trial court to conclude it is a “person.” But that conclusion is not at all clear, or inevitable. A county is a political subdivision of the state (Troup County Elec. &c. v. Ga. Power Co., 229 Ga. 348, 352 (3) (191 SE2d 33)), and, by statutory edict, the State is not bound by the passage of a law unless it is named therein or unless the words of the law are so plain, clear and unmistakable as to leave no doubt as to the intention of the General Assembly. OCGA § 1-3-8; Lingo v. Harris, 73 Ga. 28, 30.

In City of Atlanta v. Smith, 99 Ga. 462, 466 (27 SE 696), it was held: “[T]he word ‘person’ . . . cannot be held to include the municipal corporation . . . without an express legislative declaration to that effect, or without the use of words which, by necessary implication, would bring it within the term ‘person,’ as employed in the act. It is an ancient maxim of the common law that ‘the king is not bound by any statute if he be not expressly named to be so bound.’ No intent to relinquish or abridge any prerogative, right, title or interest of the crown will be presumed, unless such an intent is manifest from the language of the statute. Broom, Leg. Maxims, *72.”

In excepting from insolvency relief the claims of certain insurance interests and of persons (“legal entities”) with a net worth greater than $1 million, the legislature obviously meant to apportion the loss among those best set up or able to bear it. It is not a matter of the State “ ‘[standing] in the shoes’ of the insureds” as was the analysis in United Budget Co. v. Ga. Insurers Insolvency Pool, 253 Ga. 435, 437 (321 SE2d 333). It is simply that the state or county taxpayers are not mentioned and moreover do not clearly fit the category of those best able to bear the loss within the statutory scheme. Many a county in this state will have a net worth of $1 million but might still be poor considering the number of taxpayers in it, and the number of people it serves. We therefore seriously doubt that by including “any other legal entity” and by neglecting to mention the state or its subdivisions in § 33-1-2 (5), the legislature means to include these as a “person” to be excluded if it had a net worth greater than $1 million under § 33-36-3 (2) (F); and with that doubt, OCGA § 1-3-8 and Lingo, supra, p. 30, mandate the conclusion that it did not.

Decided January 25, 1988

Rehearing denied February 12, 1988

E. Freeman Leverett, Cynthia G. Weaver, for appellants.

Andrew J. Ekonomou, Teresa W. Pendergrast, for appellee.

The appellee Insolvency Pool is unable to point to any rule of law or logic that requires a contrary position. Instead, it suggests that the Act gives relief only to covered claims of “persons,” and that Elbert County seeks first to obtain coverage on declaring itself to be a “person,” and then denies it is a “person” who is excluded under § 33-36-3 (2) (F). This argument is twisted. The Act does not inceptively grant relief only to “persons.” It provides a remedy for “covered claims,” which is defined at § 33-36-3 (2) (A and B). Elbert County evidently has a “covered claim”; it does not have to be a “person” to have one, and it does not claim to be a “person.” Since it is not a “person” within the statutory scheme, Elbert County’s covered claim is not excluded by § 33-36-3 (2) (F).

The trial court erred in granting judgment to the appellee Insolvency Pool.

Judgment reversed.

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


text:
    75618.
    EVANS v. THE STATE.
    (366 SE2d 165)
   Beasley, Judge.

Defendant was granted an appeal from the adjudication of guilt and sentence, for violating the Controlled Substances Act, which resulted from the court’s finding that defendant had subsequently violated the terms of probation earlier imposed on his guilty pleas under the first offender statute. OCGA § 42-8-60. His sole enumeration of error addresses the sufficiency of the evidence of the probation violation.

On April 17, 1987, some two years into the five-year probation, police officers with a warrant searched defendant’s residence. The house consisted of two apartments which are separate in that one can only go from one to another by using the outside doors. One apartment was occupied by defendant and his family and the other was used by defendant’s brother and father. Electric cords ran from one to the other and defendant’s kitchen had only a hot plate while the other had a stove. Defendant stated to an arresting officer that he paid the utility bills for the entire house and his children ate in the other kitchen. Contraband drugs, which were the basis for ending probation, were found in the commode, the kitchen and the bedroom of defendant’s brother’s apartment. The contraband was contained in “corner bags,” which were described by the searching officers as the corners of plastic bags secured by wire wrapping, a common packaging for illicit drugs. Plastic bags from which the corners had been removed were found in defendant’s apartment: in the living room wood stove, on the kitchen floor, and in the kitchen trash.

Decided January 26, 1988

Rehearing denied February 12, 1988

Gregory Homer, for appellant.

G. Theron Finlayson, District Attorney, David E. White, Assistant District Attorney, for appellee.

Defendant contends that there was no evidence that he had access to his brother’s apartment or that, even if he did, that he had the power and intention to exercise control over the contraband so as to be in constructive possession of it. See Granger v. State, 142 Ga. App. 612 (236 SE2d 762) (1977); Blount v. State, 181 Ga. App. 330, 332-33 (2 & 3) (352 SE2d 220) (1986). There being what can at the least be termed slight evidence of access, power, and intention to exercise control or dominion over the cocaine in the house, the question of fact regarding constructive possession remains within the domain of the trier of fact. Callahan v. State, 179 Ga. App. 556, 565 (6) (347 SE2d 269) (1986); Ramsay v. State, 175 Ga. App. 97, 99 (7) (332 SE2d 390) (1985). As in probation revocation proceedings, only slight evidence is necessary to support a termination of probation under the first offender statute. Anderson v. State, 177 Ga. App. 130, 132 (3) (338 SE2d 716) (1985). Applying that test, there was sufficient evidence connecting defendant with possession of cocaine to authorize the trial court, determining the facts, to abort the first offender treatment. See Causey v. State, 148 Ga. App. 755 (252 SE2d 664) (1979).

Judgment affirmed.

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


text:
    75649.
    ADAIR v. BAKER BROTHERS, INC.
    (366 SE2d 164)
   Birdsong, Chief Judge.

Karen E. Adair filed her complaint on February 11, 1987, against appellee Baker Brothers, Inc., for the alleged wrongful death of her husband, who was electrocuted when he came in contact with an allegedly defective fan, sold to appellant’s decedent by appellee. The decedent’s death was alleged to have occurred on April 26, 1984. Appellee moved for and was granted summary judgment based on the bar of the statute of limitations. This appeal followed. Held:

Appellant’s complaint was filed in three counts: Count 1 sounded in tort under a claim that the fan was defective and unreasonably dangerous to an intended user; Count 2 was based on negligence arising from the purported failure of appellee to exercise reasonable care to eliminate the unreasonable risk of foreseeable injury; Count 3 alleged a breach of express and implied warranties of merchantability and fitness. Appellant argues that the statute of limitations of two years pertaining to personal injuries (OCGA § 9-3-33) is applicable only to Counts 1 and 2, and that Count 3, which is based in contract, is governed by OCGA § 11-2-725, which permits actions based upon breach of contract to be brought at any time within four years. The legal basis for appellant’s claim of error is that a breach of a contractual obligation can give rise to an action in tort as well as contract, and that she “may elect (prior to the verdict) which remedy [she] will pursue. If [she] elects to bring an action for breach of contract, [she] has, under the code, four years within which to bring it. . . .” Cited as authority for this position are Patterson v. Augusta &c. R. Co., 94 Ga. 140, 141 (21 SE 283), and Hamilton v. Powell, Goldstein &c., 167 Ga. App. 411, 413 (306 SE2d 340).

We recognize the sound legal basis for the claim that “a single act or course of conduct may constitute not only a breach of contract but an independent tort as well. . . .” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587). However, this maxim is but one leg of a legal triad and cannot stand alone. The second portion of this trio is that a contractual violation is a tort only “ ‘if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him.’ ” Travelers Ins. Co. v. King, 160 Ga. App. 473, 475 (287 SE2d 381). The last element is that “ ‘the complaining party may elect as to his remedy, and rely either upon his right under the contract or proceed for damages as for a tort.’ ” (Emphasis supplied.) Rawls Bros. Co. v. Paul, 115 Ga. App. 731, 733 (155 SE2d 819); accord Patterson, supra; Hamilton, supra. Hence, a plaintiff can elect which theory he will proceed under. In the instant case, appellant is contending he had the right to exercise his election at any time “prior to the verdict.”

We need not reach this contention. We find that the issue presented is which statute of limitations governs the action, as pled — the one for personal injury, or the one for breach of the express and implied warranties of merchantability and fitness. This is an interesting, as well as recurring, problem on which various jurisdictions have reached different results. “The more commonly accepted view would seem to be that an action to recover for personal injuries is, in essence, a personal injury action, and, regardless of whether it is based upon an alleged breach of an implied warranty or is based upon an alleged tort, the limitations statute governing actions for personal injuries is controlling.” Annot. 37 ALR2d 704. Accord Zellmer v. Acme Brewing Co., 184 F2d 940 (9th Cir. 1950); Patterson v. Vincent, 44 Del. 442 (61 A2d 416); Seymour v. Union News Co., 349 Ill. App. 197 (110 NE2d 475).

Georgia follows the general rule. In Daniel v. American Optical Corp., 251 Ga. 166 (304 SE2d 383), our Supreme Court answered a certified question from the 11th Circuit Court of Appeals as to which period of limitations applied to an action in which a plaintiff had been injured when a piece of hot metal flew over his safety glasses into his eye while he was operating a lathe. The action was based on personal injuries (OCGA § 9-3-33) and strict liability (OCGA § 51-1-11). The action was filed more than two years after the incident occurred and would be barred under OCGA § 9-3-33, but under the theory of strict liability, would have a ten-year period. OCGA § 51-1-11 (b) (2). The court, referring to the wording of OCGA § 9-3-33: “ ‘Actions for injuries to the person shall be brought within two years after the right of action accrues . . .’ ” held that “[t]his is a traditional general statute of limitations. By its very language, the scope of application of this statute of limitations is determined by the nature of the injury sustained rather than the legal theory underlying the claim for relief. . . . Because the nature of the injury sustained in this case is an injury to the person, OCGA § 9-3-33 . . . applies. [Cit.] We find no reason to differentiate between actions for personal injuries brought under a theory of strict liability as opposed to negligence for purposes of applying OCGA § 9-3-33. . . .” (Emphasis supplied.) Id. at 168.

In a similar action, one in which the action was premised in part on products liability, Lorentzson v. Rowell, 171 Ga. App. 821 (321 SE2d 341), this court applied the ten-year statute applying to products liability and the Supreme Court reversed, finding that “ [t] he nature of the injury sustained in this case is an injury to the person, and OCGA § 9-3-33 therefore applies. . . .” Smith, Miller & Patch v. Lorentzson, 254 Ga. 111 (1) (327 SE2d 221).

The action, as pled in the instant appeal, is a wrongful death action and the statute of limitations for personal injuries applies — OCGA § 9-3-33. The trial court did not err in applying the two-year statute of limitations.

Decided January 26, 1988

Rehearing denied February 12, 1988

Mike Treadaway, for appellant.

Gary L. Seacrest, Karsten Bicknese, for appellee.

Judgment affirmed.

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


text:
    75730.
    LAW OFFICE OF TONY CENTER v. BAKER et al.
    (366 SE2d 167)
   Birdsong, Chief Judge.

This is an appeal pursuant to a grant by this court of an application for discretionary appeal. Tony Center was retained by Sherri Baker to represent her in a divorce action. The final decree included, inter alia, $250 per month for each of two children as “child support,” payable to the Clerk of the Superior Court of Bartow County. Following the divorce, a disagreement arose between Ms. Baker and Center regarding payment of his fee. Center filed an “Attorney’s Lien” with the court, claiming an amount due of $2,809.08, with accruing monthly interest of $40.75. Thereafter he filed a “Motion to Enforce Attorney’s Lien” against “funds received by the clerk of the court” to be distributed to Baker, i.e., the “child support.” Center claims “[a]n attorney’s lien is superior to all liens except taxes and attaches to the fruits of labor and skill of the attorney. . . .” The trial court denied the motion “to the extent counsel seeks to foreclose against child support.” Appellant applied for and was granted interlocutory review of the trial court’s order. Held:

At issue is whether an attorney’s lien can attach to child support payments. There are two types of attorney’s liens, a general or possessory lien, and a special or charging lien. See generally 7A CJS 707, Atty. & Client Chap. X. The general, or possessory, lien is the right of the attorney to retain possession of all money or other property of his client coming into his hands professionally, until the amount due him for his professional services is paid. 7A CJS at 711. A special, or charging, lien is the equitable right of the attorney to recover his fees and costs due him for his services, and may be satisfied out of the judgment obtained by his professional services. 7A CJS at 713. In Georgia, OCGA § 15-19-14 authorizes attorney’s liens — subsection (a) the possessory lien, and subsection (b) the charging lien. The remaining provisions address the lien’s priority and the method of enforcement.

“Lien laws are to be strictly construed, and one who claims a lien must bring himself clearly within the law.” White v. Aiken, 197 Ga. 29, 33 (28 SE2d 263). “The attorney’s lien statute ‘ “is in derogation of the common law, and is to be strictly construed.” Accordingly, the statute will not be construed so as to apply to any factual situation not strictly within its wording.’ ” May v. May, 180 Ga. App. 581, 582 (349 SE2d 766); accord Woodward v. Lawson, 225 Ga. 261, 262 (167 SE2d 660). Hence, although the “child support” in the hands of the Clerk represents funds which are the fruit of the labor of the attorney, are they such “funds” to which an attorney’s lien may attach?

“Child support,” denominated alimony (OCGA § 19-6-19 (a)), occupies a special niche in our law. “When alimony is awarded for the support of minor children, the mother acquires no interest in the funds, and when they are paid to her she is a mere trustee charged with the duty of seeing that they are applied solely for the benefit of the children. She can not consent to a reduction or remission of the alimony, and ordinarily her conduct can not relieve the father of paying the same as directed by the court.” Stewart v. Stewart, 217 Ga. 509, 510 (123 SE2d 547). Is the clerk of the court in a different category, or exempt classification from that of a trustee of the funds for support of the child? We hold it is not.

In Keefer v. Keefer, 140 Ga. 18 (78 SE 462), the Supreme Court was discussing collection of attorney fees in a divorce action and the application of an attorney’s lien to the judgment and opined that “an attorney is given a lien upon ‘all suits, judgments, and decrees’... to enforce their liens. . . . While the language is somewhat broad, we think it was not intended to cover an application for alimony and counsel fees.” 140 Ga. at 25. Thus, in that instance the Supreme Court refused to apply an attorney’s lien to “alimony.” Then, in Thomas v. Holt, 209 Ga. 133-134 (70 SE2d 595), the court combined the “trust” nature of child support with a claim for attorney fees and found: “Where an award is made in favor of a wife for permanent alimony in a final decree, to be paid to her by the husband for the maintenance and support of their minor child who is in the wife’s custody, upon receipt of each payment she should use the same solely for the benefit of the child. In the receipt and use of such money, she acts as a trustee or guardian of the minor child. . . . [T]he mother has no power or authority to make a contract with an attorney at law whereby she agrees to pay him one-half of whatever sums he collects from the father by virtue of the decree. Such an agreement, being contrary to the policy of the law, is void, and a court of equity will not aid the attorney in attempting to require the mother to account to him for payments she has received from the father ... or as to any future payments.” Hence, sums representing child support are held in trust by intervening parties and the party holding such child support payments cannot consent, in law, to a portion being used for payment of attorney fees in their collection.

Decided January 27, 1988

Rehearing denied February 12, 1988

Tony Center, pro se.

Sherri Baker, pro se.

Harry B. White, G. Carey Nelson III, for appellees.

Our holding is consistent with the general law on this issue, i.e., “to allow an attorney’s lien to be asserted against child support would necessarily result in counsel for the custodian taking from the children involved, monies the court has determined to be necessary to assure their adequate support.” Fuqua v. Fuqua, 558 P2d 801 (Wash. 1977); accord Vogel v. Vogel, 90 A2d 537 (N.J. 1952); Sanner v. Sanner, 46 SW2d 936 (Mo. 1932); Johnson v. Gerald, 113 S 447 (Ala. 1927); Hubbard v. Ellithorpe, 112 NW 796 (Iowa 1907). Child support cases follow the general law that an attorney’s charging lien does not attach to alimony. Levitas v. Levitas, 410 NYS2d 41; Owen v. Forchelli, 249 NYS2d 913; Turner v. Woolworth, 221 NY 425 (117 NE 814).

In addition to the bases of “public policy” and the funds are held in “trust” for the children, another sound reason for refusing to permit an attorney’s lien to attach to child support payments is that the attorney “stands in no better position than his client” (Lundeberg v. Dastrup, 497 P2d 648, 649 (Utah 1972); see also OCGA § 15-19-14 (b)), the ex-wife, who cannot use child support for payment of attorney fees even though the attorney’s services resulted in receipt of the payments. Thomas, supra.

The general rule is that “ ‘fees for services rendered by an attorney must be paid by the person who employs him.’ ” Hagstrom v. Hagstrom, 235 Ga. 853, 855 (221 SE2d 602). And, the attorney is not in any worse position by our holding for he can pursue his remedy against the person who employed him. Keefer, supra at 26. Accordingly, we find that an attorney’s charging lien should not be “allowed to nullify an award determined to be necessary to assure the support of a child” and “is not enforceable against child support payments.” Brake v. Sanchez-Lopez, 452 S2d 1071, 1072 (Fla. 1984).

Judgment affirmed.

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


text:
    75760, 75884.
    SPAULDING v. THE STATE (two cases).
    (366 SE2d 174)
   Pope, Judge.

Case No. 75760

Defendant was charged via a six-count indictment with four counts of aggravated assault on a peace officer (Counts One-Four), aggravated assault (Count Five) and simple battery (Count Six). The jury found defendant guilty of Count One, not guilty of Counts Two and Three, guilty of the lesser offense of simple assault on Counts Four and Five and guilty of simple battery on Count Six.

1. Defendant challenges the sufficiency of the evidence on his conviction of aggravated assault of a peace officer. Construed so as to support the verdict, the evidence adduced at trial showed the following: At approximately midnight on August 30, 1986 defendant decided to pay an uninvited, unannounced visit to his former wife, Sara Doke. When Doke, hearing a ruckus at her back door, went to investigate, defendant broke through the door and struck Doke in the head. He then turned his attention to Doke’s male visitor, straddling him on the floor, posing a lamp over his head and kicking him in the eye. At this point Doke’s brother intervened and convinced defendant to go outside. Responding to calls by both Doke’s visitor and brother, officers of the Brunswick Police Department also began to arrive. One of these officers (Officer Butts) approached defendant in an attempt to ascertain what was going on; however, defendant ignored the officer’s request for information and continued walking towards his truck. Defendant and Officer Butts then struggled for defendant’s truck keys, but defendant overpowered the officer. Observing Officer Butts’ failed attempts to stop defendant, Officer Stewart jumped on the side of defendant’s truck and advised defendant he was a police officer and told him to stop his truck. Defendant advised Officer Stewart that he did not “give a goddamned who you are, get off of my truck,” and started driving away with both officers hanging on to the sides of the truck. Apparently possessing a stronger self-preservation instinct, Officer Butts pushed himself free of the truck. Defendant continued to accelerate and Officer Stewart continued trying to get him to stop by both verbal requests and attempts to reach inside the truck and grab the keys or gear shift. Officer Stewart further testified that defendant then “started weaving the truck back and forth, trying to shake me off . . . ,” and again ordered Officer Stewart off his truck. When Officer Stewart advised him that he would get off if defendant would stop the truck, defendant slammed on the brakes, throwing Officer Stewart into the door of the truck, and then immediately re-accelerated, driving with one hand and pushing the officer’s face away from the truck with the other, ultimately pushing Officer Stewart off the truck. Following a high-speed chase involving both Brunswick and Glynn County law enforcement officials, defendant was apprehended and placed under arrest.

On appeal, defendant argues that the evidence showed neither an assault on Officer Stewart nor that he used his pickup truck in a manner likely to result in serious bodily injury. “A person commits the offense of aggravated assault when he assaults: . . . (2) . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21. Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle’s use. Blalock v. State, 165 Ga. App. 269, 270 (299 SE2d 753) (1983). The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury’s determination. Banks v. State, 169 Ga. App. 571, 572 (314 SE2d 235) (1984); Quarles v. State, 130 Ga. App. 756 (2) (204 SE2d 467) (1974). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty of the offense of aggravated assault of a peace officer beyond a reasonable doubt. E.g., Savage v. State, 181 Ga. App. 129 (1) (351 SE2d 519) (1986); McWilliams v. State, 172 Ga. App. 55 (1) (322 SE2d 87) (1984).

2. Defendant, citing Smith v. State, 140 Ga. App. 395 (231 SE2d 143) (1976) also contends that the trial court erred in defining aggravated assault because the trial court failed to charge that the jury must first find that a simple assault was committed. “This assertion has been decided by the Supreme Court adversely to [defendant]. ‘There is no merit in [defendant’s] contention that a charge on simple assault (OCGA § 16-5-20 . . .) must be given in order to complete the definition of aggravated assault. (OCGA § 16-5-21 . . .). The latter does not need the former to make it complete. (Cit.)’ Sutton v. State, 245 Ga. 192, 193 (2) (264 SE2d 184) (1980).” Willis v. State, 167 Ga. App. 626 (307 SE2d 133) (1983); Craft v. State, 158 Ga. App. 745 (2) (278 SE2d 457) (1981); Quong v. State, 157 Ga. App. 532 (2) (278 SE2d 122) (1981). “Further there was no written request to charge [aggravated assault], and the charge as a whole was sufficient in instructing the jury as to the basic law.” Craft, supra at 746.

3. Defendant next contends that the trial court erred in allowing one of the officers involved in the vehicular chase of defendant to testify that he heard “the call [go] out that the city was involved in a high speed chase with a burglary suspect and they had an officer down.” The transcript shows that when this testimony was offered at trial, defendant interposed a hearsay objection which was overruled by the trial court on the basis that such testimony, although hearsay, was admissible to show the officer’s motive and conduct. Although defendant voiced no further objection at that time, he now argues that the testimony was inadmissible for that purpose. “Inasmuch as this ground was not presented to the trial court, there is nothing for this court to review. Mullins v. State, 176 Ga. App. 439 (1) (336 SE2d 343) (1985).” Cichetti v. State, 181 Ga. App. 272, 274 (351 SE2d 707) (1986). Moreover, since the testimony was merely cumulative of other admissible evidence concerning the events alluded to by the witness, the error, if any, in the admission of the testimony was harmless. Accordingly, this enumeration is without merit. Glenn v. State, 255 Ga. 533 (3) (340 SE2d 609) (1986); Smith v. State, 180 Ga. App. 620 (1) (349 SE2d 754) (1986).

Decided February 2, 1988

Rehearing denied February 12, 1988

Neal G. Gale, Randall M. Clark, for appellant.

Glenn Thomas, Jr., District Attorney, Richard H. Taylor, Assistant District Attorney, for appellee.

4. Lastly, defendant assigns error to the trial court’s charge on flight and argues that said charge should have been specifically directed to Counts Five and Six of the indictment. “Where the defendant departs the scene immediately after the incident, it is not error to charge on the issue of flight of the defendant. It is for the jury to determine if his sudden departure was due to consciousness of guilt or other reasons.” Lockette v. State, 181 Ga. App. 649 (1) (353 SE2d 585) (1987); Carter v. State, 180 Ga. App. 269 (2) (349 SE2d 19) (1986); Hood v. State, 179 Ga. App. 387 (5) (346 SE2d 867) (1986); Camp v. State, 166 Ga. App. 208 (8) (303 SE2d 540) (1983); Goodrum v. State, 158 Ga. App. 602 (5) (281 SE2d 254) (1981). Hence, this enumeration also affords no basis for reversal.

Case No. 75884

As the foregoing decision renders unnecessary our consideration of Appeal No. 75884, which, was transferred from the Supreme Court and consolidated with Appeal No. 75760, we hereby dismiss Appeal No. 75884.

Judgment affirmed in Case No. 75760. Appeal dismissed in Case No. 75884.

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


text:
    75275.
    TURNER OUTDOOR ADVERTISING, LTD. v. FIDELITY EASTERN FINANCIAL, INC.
    (366 SE2d 201)
   Beasley, Judge.

Plaintiff Turner Outdoor Advertising, Ltd. appeals from a directed verdict against it at the close of its evidence in a breach of contract suit to collect from defendant Fidelity Eastern Financial, Inc. d/b/a Diana’s Bakery, unpaid monthly rent for a painted outdoor advertising display.

Plaintiff’s evidence showed that on July 3, 1985 Turner entered into an agreement with Diana’s, a tanning salon, for a painted outdoor advertising display. The contract term was for twelve months, beginning August 24, 1985 at a monthly rental of $400. Diana’s made an initial deposit of $400.

A specific location for the billboard was discussed, was acceptable to Diana Goodman, the president of the business, and was specified on the face of the contract. After the contract was executed, Loeffler, the account executive with Turner, had further discussions with Goodman about the content of the billboard and the artwork was begun. Loeffler learned that the ground lease on the property on which Diana’s billboard was to be located was terminated. Even though Turner had received notice of intent to terminate the ground lease in April, before the contract with Diana’s, no one in the sales department including Loeffler knew that the lease had been terminated. Turner had not taken the location off the list of available sites used by its sales staff.

Loeffler secured an alternate location for the billboard closer to the salon, and it was approved by Goodman. Subsequently the ground lease on this substituted location was also cancelled and a second substituted location of equal or greater value was found which Goodman also approved. The listed rental price for the new location was $450 per month, but Loeffler secured Turner’s consent to let Diana’s pay the contract price of $400 per month. The billboard was erected at this location by the contract deadline.

In early September, the billboard was inadvertently covered up with another advertisement. Turner corrected the situation within twenty-four hours of learning of it. On September 23, the salon’s counsel wrote Turner, stating that since Turner had “breached” the contract by “taking [Diana’s] billboard down” after it had been up only several days, Diana’s no longer wished to continue its relationship with Turner and requested refund of the $400 paid. Goodman also indicated to Loeffler that she no longer wished to deal with Turner. Turner maintained the salon’s billboard for the full term of the contract even though the salon never made any of the remaining nine rental payments. Turner had given the salon one month’s rental credit for the substitution of locations and a second month’s credit for the billboard cover-up, based on a contract provision that: “If ... for any other reason whatever, Turner shall be unable to paint and maintain any of the space [s] covered hereby, this agreement shall not terminate either in whole or as to any part, but Turner shall allow us credit at the rate for such space shown on the face hereof for the period during which service shall not be furnished or shall be discontinued or suspended.”

Turner sued to recover the nine months rental with interest plus attorney fees. Diana’s counterclaimed for refund of the $400 deposit plus interest, reasonable attorney fees, and costs.

At the close of Turner’s evidence, Diana’s moved for a directed verdict on the bases of Turner’s “foul-up of the various signs” amounting to breach of the contract and the contract’s rescission by Goodman’s indications that the business relationship was ended and counsel’s letter to that effect. The court granted the motion after determining, in essence, that the contract was void because defendant had been fraudulently induced to enter it when, at the time of execution, Turner knew that the specific location listed in the contract, which was fundamental to it, would not be available. The court refused relief on the counterclaim and Diana’s acquiesced in the ruling.

Turner argues that a directed verdict should not have been granted because the court erroneously concluded as a matter of law that: the contract was void as a result of inceptive fraud; there was no valid contract modified as to location by agreement of the parties; Turner had not complied with the terms of a valid contract by providing an alternate acceptable to Diana’s and giving rent credit so as to preclude rescission by Diana’s.

Did the evidence show fraud in the inducement as a matter of law?

“Fraud which constitutes a ground for voiding a contract under OCGA § 13-5-5 must be fraud which induced a party to enter into the contract. [Cit.] The elements of fraud are ‘(1) a false representation made by [a party]; (2) scienter; (3) an intention to induce [the] [other party] to act or [to] refrain from acting in reliance thereon; (4) justifiable reliance by the [other party]; (5) damage to the [other party]. [Cit.] Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to [sustain a finding] of its existence. [Cit.] It is peculiarly the province of the jury to pass on these circumstances. [Cits.]’ [Cits.]” Allen v. Sanders, 176 Ga. App. 647, 648 (1) (337 SE2d 428) (1985).

The circumstances of the initial location and its relationship if any to execution of the contract, as gleaned solely from plaintiffs evidence, did not conclusively demonstrate fraud in the inducement of the contract as a matter of law. There was evidence that an incorrect representation was made regarding the initial site’s availability. However, there was also evidence that the representation was innocently made by the sales agent. Even if the advertising company’s knowledge is imputed to the agent, this does not establish that the misrepresentation was made with the intent to induce defendant to enter the contract, or that the first location was fundamental and defendant acted in reliance on its being provided. In addition, the evidence did not establish any damage suffered by defendant as a result of the alleged misrepresentation. To the contrary, it showed that the defendant business had approximately a year’s worth of billboard advertising after having made only the initial payment, at a location which was satisfactory to it and could command a greater rental than the original site. There was evidence that Turner, by issuing the salon two months rental credit, had complied with the remedial terms of the contract.

Assuming that plaintiff’s evidence had made out a defense of fraud in the inducement in favor of the defendant as a matter of law so as to render the contract voidable, that would not end the case. Fraud does not automatically void a contract but rather renders it voidable at the election of the injured party. OCGA § 13-5-5. “Such a contract may be ratified by the party defrauded, and when so ratified it becomes valid and binding upon all. [Cits.] To rescind such a contract one must be diligent in discovering the fraud, [Cit.], and upon discovery of the fraud he must act at once and announce his purpose to rescind and adhere thereto. [Cit.]” Manning v. Wills, 193 Ga. 82, 90 (3) (17 SE2d 261) (1941); see also Yawn v. Powell, 146 Ga. App. 554 (246 SE2d 737) (1978). Plaintiff’s evidence raised questions of ratification of the contract by defendant, as modified, and of defendant’s diligence in its attempt to rescind the contract. These questions were properly resolved by the jury. See Thomson v. Walter, 160 Ga. App. 542 (287 SE2d 562) (1981).

Diana’s asserts that the availability of the initial location was a condition precedent in the contract which was not performed and that it therefore had no obligations under the contract. Even if obtaining the initial site was properly characterized as a condition precedent in the contract, which we do not decide, the performance of a condition precedent may be waived. Again the evidence made this a question for jury resolution. Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 SE 590) (1909).

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions and inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); Tri-Eastern Petro. Corp. v. Glenn's Super Gas, 178 Ga. App. 144, 145 (1) (342 SE2d 346) (1986).” Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901) (1986). That not being the case here, the court’s premature conclusion of the case in defendant’s favor was error.

Decided February 12, 1988.

Lawrence S. Burnat, Lynn C. Stewart, for appellant.

Charles J. Vrono, for appellee.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    75353.
    In re HAYES.
    (366 SE2d 204)
   McMurray, Presiding Judge.

Respondent was found in criminal contempt of court in the State Court of Coffee County, Georgia and sentenced to a fine of $100 and five days in jail. In an order styled “CONTEMPT,” the trial court entered, in pertinent part, the following findings of fact:

“[Respondent] is the Solicitor of the State Court of Coffee County, Georgia. [Respondent] prepared and distributed a non-jury calendar for Monday, June 22, 1987, at 1:30 p.m. at the Law Enforcement Center, Douglas, Georgia. When court convened at 1:30 p.m., there were present in the courtroom at the Law Enforcement Center, the Judge, the Deputy Clerk, the Chief Deputy Sheriff, three representatives of the probation office, the court reporter, numerous attorneys and approximately fifty members of the audience in response to the non-jury trial calendar of twenty-nine (29) defendants. [Respondent] arrived at 1:45 p.m., thereby delaying and hindering the orderly function and disposal of business by the court. The court inquired as to the reasons for his tardiness, at which time he made no meaningful or adequate response and exhibited a casual indifference to the court’s inquiry. The court pointed out to [respondent] the delays and hinderances with the dispositions of the business of the court. . . .

“[Respondent] has demonstrated a chronic habit of tardiness in his court attendance. In the morning session on June 22, 1987, at 9:00 a.m., he was over twenty minutes late. No formal action was taken at that time, but he was warned. He has been repeatedly warned on other occasions as to his attendance and tardiness. It’s a rarity for him to attend court on time.

“During the conduct of the afternoon session, he withdrew from the courtroom without leave of the court and removed his jacket and sat down on the corner of counsel table to conduct the prosecution of a case. Although these matters were contrary to the proper dignity and decorum of the courtroom and occasioned further delay, no further action was taken.

“If this court appears too lenient in dealing with this problem, I can only say that I was maintaining the operation of the State Court and hoping that my private instructions to [respondent] would overcome his youth and inexperience.

“The Bar in this county have conducted themselves properly in matters before this court, recognizing the exception being made for [Respondent].”

Respondent filed a notice of appeal and a motion for supersedeas pending appeal. The trial court denied the motion for supersedeas and respondent filed in this Court a motion for emergency relief under Rule 50 (c) of the Court of Appeals of Georgia. In order to preserve the jurisdiction of this Court and prevent the issues from becoming moot, respondent’s motion for emergency relief was granted and the trial court’s order of contempt was stayed during the pendency of this appeal. Held:

1. Respondent contends that there was insufficient evidence upon which to base a finding of criminal contempt. “ ‘(O)n appeal of a criminal contempt conviction the appropriate standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); see also Blackburn v. Blackburn, 249 Ga. 689, 693-4 (292 SE2d 821) (1982).’ In re Irvin, 254 Ga. 251, 256 (2) (328 SE2d 215).” In re Henritze, 181 Ga. App. 560, 561 (353 SE2d 58).

In the case sub judice, the trial court based its contempt order upon facts, including alleged incidents of misconduct by respondent, which are not supported by the record. In the absence of evidence establishing such facts, we must hold that the trial court was not authorized to base its finding of contempt on facts not in the record. In re Sykes, 151 Ga. App. 233, 234 (2) (259 SE2d 215). Compare In re Pruitt, 250 Ga. 836 (2) (301 SE2d 481). The only evidence in the record in the case sub judice as to respondent’s alleged contempt, is that he was 15 minutes late for an appearance in court in the State Court of Coffee County, Georgia on June 22, 1987. In response to the trial court’s inquiry, respondent replied that he was late because he “had an office full of people all wanting to avoid court this afternoon . . .” and that he had “spent the last fifteen or twenty minutes [before his appearance in court] talking with out-of-town defendants [about] State Court business . . . .”

“ ‘Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court.’ Welborn v. Mize, 107 Ga. App. 427, 428 (130 SE2d 623) (1963). See also OCGA § 15-1-4 (a) (1).” In re Henritze, 181 Ga. App. 560, 562, supra. While not condoning respondent’s tardy appearance in court, we hold that the 15-min-ute delay while respondent was conducting business of the State Court of Coffee County, Georgia, does not constitute a sufficient predicate from which any rational trier of fact would find the essential elements of the charge against respondent without reasonable doubt. In this regard, we observe that there was no competent evidence as to respondent’s motives at the time and, contrary to the trial court’s findings, we find nothing in the record reflecting a contumacious or disrespectful “indifference” by respondent to the trial court’s inquiry. Consequently, having failed in its burden of proof, the state court erred in finding respondent in contempt. See Judge Edward H. Johnson and Richard D. Reaves, Contempt of Court in Georgia, 23 Georgia State Bar Journal 66 (1986).

Decided February 12, 1988.

Dewey N. Hayes, Jr., pro se.

T. V. Williams, Jr., pro se.

William A. Turner, Jr., amicus curiae.

2. Respondent’s remaining arguments are moot in light of our holding in Division 1 of this opinion.

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.