author: Andrews, Judge. Johnson, Judge,

text:
    A94A1295.
    LOUDERMILK ENTERPRISES, INC. v. HURTIG.
    (449 SE2d 141)
   Andrews, Judge.

Hurtig sued Loudermilk Enterprises, Inc. d/b/a Buckhead Safety Cab (“Loudermilk”), claiming that the driver of a Buckhead Safety Cab negligently caused an automobile accident in which Hurtig was injured. Hurtig alleged that the driver of a Buckhead Safety Cab negligently pulled out in front of her car, causing her to swerve and collide with another vehicle, and that the taxicab driver drove away from the scene of the accident without stopping.

Hurtig claims Loudermilk is responsible for the damages she incurred in the accident because: (1) the taxicab driver was employed as a servant of Loudermilk, which is responsible for the damages caused by its servant on the basis of respondeat superior, or (2) if the taxicab driver was employed as an independent contractor rather than a Lou-dermilk servant, Loudermilk is liable for the negligence of its independent contractor driver pursuant to OCGA § 51-2-5 (4) because the driver wrongfully left the scene of the accident in violation of a duty to stop imposed by OCGA § 40-6-270. Loudermilk claims that, even if there was evidence the accident was caused by one of its drivers operating a Buckhead Safety Cab, it is not liable because the driver was an independent contractor, not a servant of Loudermilk, and Loudermilk is not responsible for the negligent conduct of its driver employed as an independent contractor.

A jury rendered a verdict against Loudermilk for damages in the amount of $74,046.61. Loudermilk appeals, claiming the trial court erred by denying its motion for a directed verdict made on the basis that the evidence showed the driver was an independent contractor and that it was not responsible for the driver’s negligent conduct.

The original common law rule that an employer is not liable for the torts of an independent contractor is codified in Georgia in OCGA § 51-2-4 which provides: “An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” Peachtree-Cain Co. v. McBee, 254 Ga. 91 (327 SE2d 188) (1985). “The reason for the rule is that since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk. . ..” (Citations and punctuation omitted.) Id. at 91. “The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. With [respect] to the ‘independent business’ requirement set forth in the code section, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.” (Citations and punctuation omitted.) Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 878 (345 SE2d 71) (1986).

Evidence was presented by an eyewitness to the accident that a Buckhead Safety Cab negligently caused the accident at issue and that the taxicab driver drove away from the scene of the accident without stopping. Neither the specific taxicab involved nor the identity of the taxicab driver could be determined after the accident. Other evidence showed that every Buckhead Safety Cab driver signed a written agreement with Loudermilk providing that the driver’s relationship with Loudermilk was that of an independent contractor. Some drivers owned their own taxicabs and others leased a taxicab owned and maintained by Loudermilk. In either case, the driver paid a fixed fee to Loudermilk, which provided communications services by taking telephone calls from taxicab customers and relaying the calls by radio to the taxicab drivers. The taxicab drivers retained the fares they collected from customers and did not share their profits or losses with Loudermilk. The president of Loudermilk testified that the time, manner and method of operating the taxicabs was vested with the individual drivers, who were not required to work and were not restricted to any particular time or location.

“Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.” (Citations and punctuation omitted.) McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982). Moreover, because Loudermilk denied that it had any agency relationship with its taxicab drivers, Hurtig was required to come forward with evidence sufficient to sustain a verdict establishing such a relationship. Bennett v. Miller, 188 Ga. App. 72, 74 (371 SE2d 903) (1988); Johnson v. City Wide Cab, 205 Ga. App. 502, 504 (422 SE2d 912) (1992).

Hurtig produced no evidence sufficient to support a verdict that there was an employer-servant relationship between Loudermilk and any of its taxicab drivers who could have caused the accident. Standing alone, the testimony identifying the vehicle which caused the accident as a Buckhead Safety Cab was insufficient to raise an inference that there was an employer-servant relationship between Loudermilk and the driver of the taxicab. Compare Harper v. Samples, 164 Ga. App. 511, 512 (298 SE2d 29) (1982). Evidence of lettering on the side of the vehicle reading “Buckhead Safety Cab” and evidence that the drivers of Buckhead Safety Cabs would provide a receipt for charges bearing the company name was also insufficient to raise a presumption of an agency relationship between the drivers and Loudermilk. Aetna Cas. &c. Co. v. Malcom, 149 Ga. App. 754, 755 (256 SE2d 117) (1979). “Generally[,] there are two circumstances to be proven in order to raise the necessary inference that the vehicle was being operated in the master’s business and within the scope of the employer’s employment, viz., ownership of the vehicle by the master and that the driver was the owner’s servant.” Clark v. Atlanta Veterans Transp., 113 Ga. App. 531, 533-534 (148 SE2d 921) (1966). Even if there had been proof that the driver who caused the accident drove a Buckhead Safety Cab owned by Loudermilk, the evidence was insufficient in this case to show an agency relationship between the driver and Loudermilk because of uncontroverted evidence that, if the taxicab was owned by Loudermilk, it was leased to the driver, who retained control over its operation. Red Top Cab Co. v. Hyder, 130 Ga. App. 870 (204 SE2d 814) (1974); Brunson v. Valley Coaches, 173 Ga. App. 667, 668 (327 SE2d 758) (1985). Moreover, we find no evidence sufficient to support a claim that an implied or apparent agency existed between Loudermilk and its taxicab drivers. See Howard v. St. Paul Fire &c. Ins. Co., 180 Ga. App. 802, 804 (350 SE2d 776) (1986); Jackson v. Braddy, 186 Ga. App. 284, 285 (367 SE2d 96) (1988).

There was no evidence that Loudermilk assumed control over any driver’s operation of a taxicab. Evidence that Loudermilk criticized some drivers based on complaints received from customers and terminated some drivers for this reason is not the equivalent of as-l suming control over the means and method of the work. “It is well! recognized that merely taking steps to see that the contractor carries! out his agreement, by supervision of the intermediate results ob-l tained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.” (Citations and punctuation omitted.) Slater, supra at 881.

Hurtig contends that, even if the driver of the taxicab was an independent contractor, Loudermilk remained liable for the driver’s negligence under an exception to the general rule that employers are not liable for the torts of an independent contractor. The exception relied upon by Hurtig is set forth in OCGA § 51-2-5 (4) which provides that: “An employer is liable for the negligence of a contractor . . . [i]f the wrongful act is [a] violation of a duty imposed by statute.” Hurtig asserts that, since the taxicab driver wrongfully left the scene of the accident in violation of a duty to stop at the accident scene imposed by OCGA § 40-6-270, Loudermilk is liable for the negligence of its independent contractor driver.

In the first place, Hurtig’s damage claim in this case arose from the driver’s negligent operation of the taxicab just prior to the accident, not from the taxicab driver’s violation of OCGA § 40-6-270 by leaving the scene after the accident occurred. Secondly, even if the negligence of the driver which caused the accident and resulting damages violated a statutory duty imposed by the applicable rules of the road, this was a statutory duty imposed on the driver, not on Louder-milk, so the exception set forth in OCGA § 51-2-5 (4) does not apply. Atlantic &c. R. Co. v. Kimberly, 87 Ga. 161, 167 (13 SE 277) (1891); Tanner v. USA Today, 179 Ga. App. 722, 723 (347 SE2d 690) (1986).

Under OCGA § 9-11-50 (a), “[i]f 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.” On appeal, the standard of review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (354 SE2d 6) (1987). Since Hurtig produced no evidence sufficient to rebut evidence showing the existence of an independent contractor relationship between Loudermilk and its taxicab drivers, the evidence demanded a verdict in favor of Loudermilk and the trial court erred by denying Loudermilk’s motion for a directed verdict.

Judgment reversed.

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

Johnson, Judge,

concurring specially.

I concur in the majority conclusion that the trial court erred in denying the motion for a directed verdict of Loudermilk Enterprises, Inc. d/b/a Buckhead Safety Cab. I write separately because I strongly disagree with a portion of the majority’s rationale in reaching that conclusion.

Like the majority, I conclude there is not enough evidence establishing that the vehicle which caused the accident is a Loudermilk taxicab. “We have held in very similar factual situations that plaintiff’s evidence as to the type of [vehicle] marked with a distinctive insignia was insufficient to authorize inferences of ownership of the [vehicle]; or that it was being operated by an agent or employee of defendant in the course of his employment. [Cits.]” Burns v. United Parcel Svc., 135 Ga. App. 890 (219 SE2d 624) (1975); see Clark v. Atlanta Veterans Transp., 113 Ga. App. 531, 533 (148 SE2d 921) (1966). In the instant case, Hurtig presented no evidence identifying a specific taxicab or driver, but instead relied on two witness’ testimony that the vehicle in question was marked with Loudermilk’s logo and a third witness’ testimony that the vehicle appeared to be a taxicab. This evidence is insufficient to authorize the inference that Louder-milk owns the vehicle or that a Loudermilk agent was operating it. See Johnson v. City Wide Cab, 205 Ga. App. 502, 504 (2) (422 SE2d 912) (1992); Harper v. Samples, 164 Ga. App. 511, 512 (1) (298 SE2d 29) (1982). I therefore agree with the majority that the trial court erred in denying Loudermilk’s motion for a directed verdict.

Unlike the majority, however, I do not believe that even if Hurtig had overcome this deficiency in her proof, Loudermilk would still be entitled to a directed verdict. I strongly disagree with the majority’s reasoning that Loudermilk is insulated from liability because all of its drivers are independent contractors, rather than employees of the company. “Under OCGA § 51-2-4, an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer. The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. With regard to the independent business requirement set forth in the code section, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.” (Citations and punctuation omitted.) Slater v. Canal Wood Corp., 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986).

Here, the jury heard evidence that Loudermilk lists its taxi service in the telephone directory under the Buckhead Safety Cab name; that customers who call that telephone number reach dispatchers who answer with the Buckhead Safety Cab name; that Loudermilk provides its dispatch service only to Buckhead Safety Cab drivers, not other company’s drivers; that the taxicabs are marked with the distinctive Buckhead Safety Cab logo and colors; that customer receipts bear the company name; that Loudermilk drivers collect sales tax on behalf of the company, not themselves; that Loudermilk handles customer complaints about its drivers; that Loudermilk has the authority to terminate a driver for violating company policy and that Louder-milk makes employment decisions based on how the drivers’ conduct affects the company’s public image. All of this evidence creates a jury question as to whether the taxicab drivers who work for Loudermilk do not have a bona fide existence apart from Loudermilk, but function merely as Loudermilk’s alter ego.

Moreover, the jury could have found that Loudermilk’s claim that it does not share in the profits of its drivers is disingenuous. All of the drivers pay a fixed fee to Loudermilk, regardless of the number of customers the driver has. This payment is Loudermilk’s share of the drivers’ profits and calling it a fee is mere semantics. In truth, this arrangement allows Loudermilk to share in the drivers’ customer fares without being exposed to the drivers’ losses when they have few customers.

Similarly, the jury might have found Loudermilk’s claim that it has absolutely no control over when its drivers work to be specious. If this were truly the case, it is hard to imagine how the taxicab service can function. Loudermilk has only 38 taxicabs at its disposal. With this small number, there must be times when most or even all of the so-called independent contractor drivers decide on their own not to work. If Loudermilk truly lacks any ability to control when drivers will work, it could not possibly guarantee from day to day that taxicabs will be available when customers call requesting service. For the foregoing reasons, I disagree with the majority’s conclusion that Lou-dermilk is insulated from liability because its drivers are independent contractors.

“Although the issue of apparent agency is perhaps more likely to arise in the context of contractual or commercial transactions, there would appear to be no question that an apparent agency relationship may also give rise to tort liability where it can be shown that the injury would not have occurred but for the injured party’s justifiable reliance on the apparent agency. The Restatement (2d) of Agency, § 267, provides: ‘One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.’ [Cit.]” Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 897 (3) (354 SE2d 632) (1987). As shown by the aforementioned evidence in the instant case, Loudermilk expressly represents to the public that it owns taxicabs bearing its distinctive logo and that the drivers of those cabs are Loudermilk employees. Hurtig’s injury, however, did not occur because she justifiably relied on this apparent agency and therefore the apparent agency theory would not defeat Loudermilk’s directed verdict motion. Even though this theory is not applicable to the peculiar facts of the instant case, I note it because I believe in many other taxicab cases, especially those involving injured passengers, this theory would provide another basis for disregarding the claim that taxicab drivers are independent contractors. In many instances, passengers undoubtedly choose to ride in cabs apparently owned and operated by established companies because they assume such cabs are safer and more reliable than cabs wholly owned and operated by individual drivers.

I recognize the majority’s position is supported by prior opinions from this court and current regulations on the taxicab industry. See, e.g., Brunson v. Valley Coaches, 173 Ga. App. 667 (327 SE2d 758) (1985); Red Top Cab Co. v. Hyder, 130 Ga. App. 870 (204 SE2d 814) (1974). I invite the legislature and local governments charged with regulating the taxicab industry to reexamine their policies in view of the gaping holes which exist with regard to the duty of taxicab companies to compensate innocent citizens who are injured as a result of a taxi driver’s negligence. In my opinion, the public is entitled to greater protection than is currently afforded under circumstances such as those in this case, as well as in all other cases in which citizens are passengers in taxicabs or confront taxicabs on public streets.

The general public should be able to assume that a company whose logo appears on taxicabs actually owns and operates the cabs, has them properly insured and stands behind the competency of its drivers. Unfortunately, as the instant case demonstrates, neither persons riding as passengers in these taxicabs nor other persons encountering them on the road can make such assumptions. Under the current law of Georgia, one who believes she is riding in an established taxicab company’s vehicle, or one who is involved in an accident involving one of these taxicabs, apparently must instead hope the driver alone is responsible, reliable, and insured, while the company named on the cab remains insulated from any possible responsibility because that driver is deemed an independent contractor. This misleading state of the law cries out for reform.

Regulators should require that taxicab companies, as a precondition to being licensed to operate in the community, be co-responsible with their independent contractor drivers for assuring that all taxicabs operating under their business name and logo are fully covered by insurance. In circumstances where these companies fail to provide such coverage or to take whatever steps are necessary to insure that their independent contractor/driver has provided such coverage, they should be jointly and severally liable to persons suffering injury as a result of their driver’s negligence. Furthermore, in cases such as the instant case, where it is undisputed that their driver caused the accident though he was not physically involved and did not stop to be identified, the burden should be on the company, not the plaintiff, to either bring the driver into the litigation or be independently liable to compensate the plaintiff for her injuries.

Decided October 4, 1994.

Parkerson & Shelfer, I. J. Parkerson, for appellant.

Snellings & Ferguson, Stanley T. Snellings, Robert G. Aitkens, for appellee.

Local government regulatory agencies are simply not meeting their obligations to the public when they allow the type of independent contractor arrangement commonly employed by taxicab companies to serve as a means for those companies to avoid any liability to the victims of the negligence of their drivers while enjoying all the benefits and the profits of operating their business in the community. It is bad policy, and it is -bad law. If local governments are unequal to the task, perhaps it is time for the state to require uniform regulation within its borders and to require compliance with certain standards from local governments. This court is powerless to change the situation, but we fail in our own obligation if we'do not raise the questions which call this problem to the attention of those who are in a position to accomplish the reform so desperately needed.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A1329.
    CROSBY v. THE STATE.
    (449 SE2d 147)
   Ruffin, Judge.

Appellant was convicted of driving under the influence in a bench trial. He appeals from the judgment of conviction and sentence, raising as his sole enumeration of error the trial court’s failure to suppress evidence of the level of his intoxication.

Officer Kemp of the Gainesville Police Department testified that he observed appellant’s vehicle as it passed in front of the police precinct around midnight. He specifically recalled appellant’s car because the passengers in the car were looking at him suspiciously as the car passed by. The car turned into an apartment complex known for its high crime rate, and the officer got into his patrol car and followed. When Officer Kemp approached the car, he noticed that the passengers appeared to be looking for something around the complex. The passengers spotted Officer Kemp, and appellant quickly parked the car. Officer Kemp drove past the car, turned around, drove back, and the car was still there. He then pulled along the side of the car and asked the occupants for identification. Officer Kemp testified that since the complex was the scene of significant criminal drug activity, he had a practice of stopping everyone who either drove through the area without stopping or those who drove through and stopped but did not get out. He indicated that he got out of his car and walked over to appellant’s car, primarily to see if they were engaged in any illegal activity.

When appellant rolled the window down, the officer noticed appellant’s eyes were bloodshot and alcohol was on his breath. Officer Kemp asked appellant what he was doing, and appellant replied that he was looking for someone named “Tammy.” Officer Kemp then requested that appellant step out of the car. Appellant admitted drinking a few beers; his speech was slurred; and he was unsteady on his feet. Horizontal gaze nystagmus and alco-sensor tests indicated appellant was under the influence of alcohol. Appellant was placed under arrest, read the implied consent warning and taken to the police department where he was tested on the Intoximeter 3000 and registered a blood alcohol level of .07 grams. Officer Kemp testified that the blood alcohol level was not consistent with the behavior he observed. He indicated that based on his training, some 800 to 1,000 previous DUI arrests and appellant’s condition, he concluded that appellant was a less safe driver because of the alcohol he consumed.

Appellant and his wife admitted they had been drinking and indicated that they went to the complex to drop off “Tammy” and were looking for her when Officer Kemp approached the car. Appellant also testified that Officer Kemp parked at an angle behind appellant’s car which prevented them from leaving.

The trial court found appellant guilty of driving under the influence of alcohol and drugs to such an extent that it was less safe for him to drive.

Appellant contends the trial court erred in failing to suppress evidence regarding the level of his intoxication because his arrest was illegal. Appellant argues that the officer did not have an articulable and reasonable suspicion that he was operating the car in an unsafe manner or violating any law before he approached appellant. He also maintains that since he was already parked, the placement of the officer’s car, preventing appellant from leaving the scene, and the officer’s instruction that appellant roll down his window constituted an illegal seizure.

“Contrary to appellant’s contention, it is well established that! Officer [Kemp] was not required to have an ‘articulable suspicion’! before he could approach appellant’s stopped vehicle and talk with! him. Communications between police and citizens involving no coer-l cion or detention are outside the domain of the Fourth Amendment! [cit.], and no seizure requiring reasonable suspicion of unlawful activity occurs simply because a police officer approaches an individual and asks a few questions. [Cits.]” Rogers v. State, 206 Ga. App. 654, 656-657 (1) (426 SE2d 209) (1992). “ ‘Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, (cits.); ask to examine the individual’s identification, (cits.); and request consent to search . . . , (cit.) — as long as the police do not convey a message that compliance with their requests is required.’ [Cit.]” State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992).

“A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.... Factors determinative of whether or not an intrusion or seizure has occurred include but [are] not limited to the lack of interference with the individual’s progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual anxiety and fear.” (Citations and punctuation omitted.) O’Donnell v. State, 200 Ga. App. 829, 831 (1) (409 SE2d 579) (1991).

Considering all the circumstances regarding the encounter, it appears that “appellant was not detained and his movement impaired; rather, appellant was merely approached while voluntarily stopped and . . . appellant was asked routine identification questions in a minimally intrusive manner, which the record reflects he answered readily and without protest.” Id. at 832. See also Rogers, supra at 657 (1). On the question of whether a reasonable person would have believed he was free to leave the scene, since the trial court was presented conflicting testimony as to where Officer Kemp’s vehicle was parked, we find no error in the court’s resolution of this issue in favor of the State. See State v. Akinsonwon, 200 Ga. App. 287, 289 (407 SE2d 434) (1991). Moreover, once appellant rolled down his window and revealed his bloodshot eyes and the strong odor of alcohol, Officer Kemp had reasonable grounds to conduct an investigative inquiry to determine whether appellant was engaged in criminal activity, e.g., driving under the influence. O’Donnell, supra; Eisenberger v. State, 177 Ga. App. 673, 675 (2) (340 SE2d 232) (1986). Thereafter, appellant’s arrest was proper; thus, we find no error in the admission of evidence of appellant’s intoxication.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided October 4, 1994.

Husby, Myers & Stroberg, Edwin A. Capitan, for appellant.

Jerry Rylee, Solicitor, Brett D. Turner, Assistant Solicitor, for appellee.


author: Blackburn, Judge.

text:
    A94A1696.
    JOHNSON v. DeKALB COUNTY.
    (449 SE2d 311)
   Blackburn, Judge.

On September 19, 1989, following a bench trial, the Recorder’s Court of DeKalb County found appellant, Joseph F. Johnson, not guilty of maintaining a non-conforming use in violation of the zoning ordinances of DeKalb County because the offense had not been prosecuted within one year of the date thereof as prescribed by county ordinance Chapter 4, Recorder’s Court Section 1.404. The proceeding was not transcribed and neither party requested a court reporter. A tape recording was made of the recorder’s court hearing but is not a part of the record. It is undisputed that the original non-conforming structure pre-dated the violated zoning ordinance and is grandfathered. There was initially some question as to when a subsequent non-conforming addition, which was the basis for the charge, was constructed.

On October 19, 1989, DeKalb County filed a petition for writ of certiorari in the Superior Court of DeKalb County asserting that the limitation period had not expired based upon county ordinance 11-2402, which provides that each violation shall be deemed a separate offense. Johnson’s motion to dismiss the petition was ultimately denied on August 26, 1992.

The Superior Court of DeKalb County remanded the case to the recorder’s court for a determination as to whether the recorder’s court judge, respondent herein, found that both the existing structure and the addition pre-existed the zoning ordinance and were both therefore grandfathered, or if the addition was not grandfathered, whether prosecution was barred because DeKalb County, with knowledge oil the violation, failed to prosecute same within one year of such offense! The superior court determined the statute of limitation did not bail prosecution because of the continuing nature of the offense. I

Upon remand, the recorder’s court judge responded that “the del cisión of September 19, 1989, was based on the premises that the on* year statute of limitations ran on newly constructed additions tcH property grandfathered in when the zoning law was passed.” On February 4, 1994, the DeKalb Superior Court granted DeKalb County’»! writ of certiorari, reversed the recorder’s court’s September 19, 1989 order, and remanded the case to the recorder’s court for an appropriate disposition in light of its decision on the statute of limitation. We granted Johnson’s application for discretionary review.

1. Johnson initially asserts that the trial court erred in denying his motion to dismiss because the state did not have the authority to challenge the lower court’s decision in this quasi-criminal proceeding. This contention is without merit. The prosecution for violation of a city or county ordinance is a “quasi-criminal” case. While OCGA § 5-6-33 (a), provides only for an appeal by the defendant in a criminal proceeding, OCGA § 5-6-33 (b) specifies that “[t]his Code section shall not affect Chapter 7 of this title.” Chapter 7 deals specifically with appeals by the State in criminal cases, and pursuant to OCGA § 5-7-1 (1), the State is authorized to appeal from an order, decision or judgment dismissing any indictment or accusation. State v. Speir, 189 Ga. App. 254 (1) (375 SE2d 298) (1988). OCGA § 5-7-3 expands the right of the state to appeal in those cases where the right of cer-tiorari is provided as a procedure for appealing a judgment in the specified situations set forth in OCGA §§ 5-7-1 and 5-7-2.

In this case, the substance of the recorder’s court’s action was to dismiss the citation because of the expiration of the applicable limitation period, and not on evidentiary grounds as Johnson asserts. See State v. Williams, 172 Ga. App. 708 (1) (324 SE2d 557) (1984). Accordingly, this appeal falls squarely within the category delineated in OCGA § 5-7-1 (2), and therefore, Johnson’s motion to dismiss was properly denied.

2. Johnson incorrectly contends that the superior court lacked the authority to remand the case to the recorder’s court for further findings. OCGA § 5-4-14 (a) specifically provides that the superior court, upon hearing a writ of certiorari, “may order the same to be dismissed or may return the same to the court from which it came with instructions.”

3. Lastly, Johnson maintains that the superior court erred in granting DeKalb County’s writ of certiorari and in reversing the recorder’s court’s dismissal of the charges against him. However, DeKalb County zoning ordinance 11-2402, on which the trial court relied, provides that each day a violation exists shall be deemed a separate offense, and consequently, Johnson was subject to prosecution for the continuing violation within one year of the date of each offense for maintaining a non-conforming use on his property where the non-conforming addition was not grandfathered. Johnson does not challenge the validity of the ordinance, and therefore, this issue is not before us. See Stephens v. City Council of Augusta, 193 Ga. 815 (5) (20 SE2d 80) (1942). Johnson does challenge the application of the ordinance; however, it is unambiguous and must be applied according to its terms, as the superior court applied it. Johnson offers no authority to the contrary.

Decided October 4, 1994.

Zachary & Segraves, William E. Zachary, Jr., for appellant.

Jonathan A. Weintraub, Joyce Averils, Joan F. Roach, Glenn P. Stephens, for appellee.

Based on the response of the recorder’s court judge on the original remand, there was no question of fact involved at the time that the court granted certiorari and made its final ruling on the statute of limitation issue. On certiorari, the superior court properly ruled pursuant to OCGA § 5-4-14.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1808.
    CLARK v. CHICK-FIL-A, INC.
    (449 SE2d 313)
   Blackburn, Judge.

Appellant, David Clark, appeals the order of the trial court granting appellee, Chick-Fil-A’s (“CFA”) motion for summary judgment and dismissing his suit for damages for wrongful termination and attorney fees.

In 1989, Clark became the operator of a Chick-Fil-A restaurant pursuant to an Independent Contractor’s Agreement (“Agreement”) between himself and CFA. The Agreement could be terminated in three ways: CFA could terminate without notice and for cause if one of the enumerated conditions was met, either CFA or Clark could terminate for any reason with 30 days written notice, or CFA could ter mínate immediately and without cause upon written notice and th payment of liquidated damages.

On February 11, 1992, at CFA’s request, Clark met with severa CFA representatives who informed him that he was in breach of th Agreement for cohabiting with a supervising employee. CFA to! Clark that it intended to terminate him for subjecting the company b “public scandal and ridicule” in violation of the Agreement, but gavi Clark the option of resigning so that the termination of the relation ! ship would not negatively affect Clark’s future business opportunities] Clark voluntarily resigned, signing a CFA-prepared letter of resigna tion, cancelling the Agreement. Clark never attempted to rescind hii resignation.

1. In his first enumeration Clark asserts a jury question exists a¡| to whether he had been unilaterally terminated by CFA. He arguei that he signed the letter of resignation only after CFA told him that i had decided to terminate him; that his letter was involuntary; an that the letter is a de facto release of claims to which the defense of duress was applicable. We disagree.

In Georgia one cannot state a claim for wrongful termination when it is undisputed that the employment was terminated incident to resignation. Precise v. City of Rossville, 261 Ga. 210 (403 SE2d 47) (1991); Johnson v. GMC, 144 Ga. App. 305, 306 (241 SE2d 30) (1977); Wilkinson Trust v. Trust Co. of Ga. Assoc., 128 Ga. App. 473, 474 (197 SE2d 146) (1973).

This is true even if the employee resigned under pressure and at the employer’s request and even if the employee knew that termination action would be taken in the absence of resignation. Id. Clark contends that the question of his resignation’s voluntariness is a jury issue. However, Clark’s reliance on Gantt v. Patient Communications Systems, 200 Ga. App. 35 (406 SE2d 796) (1991), is misplaced. In Gantt, the plaintiff sought termination benefits after he resigned upon his demotion from the position of CEO and president of the company. Id.

In the present case, it is uncontroverted that Clark resigned in lieu of termination, receiving thereby the benefits of resignation, and that he did so knowing that he had the right of refusal. His resignation was thus voluntary. Accordingly, as a matter of law, Clark has not stated a claim for wrongful termination. Inasmuch as “there is no genuine dispute . . . and the admitted facts point to the right of one party to judgment as a matter of law, then summary judgment is the proper remedy.” Sands v. Lamar Properties, 159 Ga. App. 718, 720 (285 SE2d 24) (1981).

We do not reach Clark’s argument that the resignation letter was a de facto release of claim, as it is raised for the first time on appeal. Long v. Marion, 257 Ga. 431, 432 (360 SE2d 255) (1987). We do, however, conclude, as did the trial judge, that Clark cannot claim that the letter of resignation was signed under duress. See Fields v. Thompson, 164 Ga. App. 331, 333 (297 SE2d 100),(1982). (It is not duress to threaten to do that which one has a legal right to do.)

2. Clark next asserts that CFA terminated him in bad faith entitling him to attorney fees and litigation expenses pursuant to OCGA § 13-6-11. This claim of error fails as a matter of law as did the first. ¡Clark’s employment with CFA was terminated by his own hand, and ¡there is no bad faith evidence in the record. Again, we conclude that ¡the grant of summary judgment was proper.

| 3. Clark last contends that he is entitled to reimbursement for an ¡orange juice promotion and for cash advances he made to his employees before he was terminated by CFA. However, we find no evidence In the record to support these claims and Clark failed to produce any such evidence at the hearing below. Accordingly, Clark “may not rest upon his complaint but must come forward with his case in full in order to show there is a genuine issue [of fact].” Meade v. Heimanson, 239 Ga. 177, 179 (236 SE2d 357) (1977). See also Kornegay v. Mundy, 190 Ga. App. 433, 434 (379 SE2d 14) (1989).

Decided October 4, 1994.

Robins, Kaplan, Miller & Ciresi, Daniel A. Ragland, for appellant.

Troutman Sanders, Alan P. Shor, Lesley G. Carroll, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Andrews, Judge.

text:
    A94A1862.
    ATLANTA AIRMOTIVE, INC. v. ROYAL et al.
    (449 SE2d 315)
   Andrews, Judge.

The Atlanta Airmotive, Inc. (Airmotive) brought this action againsl Newnan-Coweta County Airport Authority (the Authority) and the five members (including Royal) who compose the Authority. Thf five members of the Authority were named defendants in their capac ities as representatives of the Authority and also as individuals against whom Airmotive sought to impose personal liability. Airmo tive appeals from the trial court’s order granting summary judgmem in favor of the five individual Authority members on Airmotive’i claim for personal liability.

The Authority leased a portion of the airport to Airmotive pursu ant to a written lease agreement. Based on claims that Airmotive vio lated the terms of the lease, the Authority invoked a term in the leas* allowing it to terminate the lease. Airmotive brought the present ac tion claiming the Authority was not entitled to terminate the leas and claiming that the five individual Authority members were person! ally liable for tort damages caused by their actions which constitutes] a wilful, wanton and malicious interference with Airmotive’s businesi

The five individual Authority members moved for summary judgj ment on the basis that they were entitled to official immunity iron] personal liability because all of their actions in relation to the leas were discretionary as opposed to ministerial actions; were within thj scope of their official functions as members of the Authority, an none of their actions were taken with actual malice or with actu intent to damage Airmotive. Georgia Const, of 1983, Art. I, Sec. I Par. IX (d); cf. Cooper v. Swofford, 258 Ga. 143 (368 SE2d 51 (1988); Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980); Guthrie v. Irons, 211 Ga. App. 502, 503 (439 SE2d 732) (1993). “Offici immunity is a form of governmental immunity accorded public. cials while acting in discretionary matters as agents for the state [or one of its political subdivisions], and, as such, is an extension of the state’s sovereign immunity to the individual agents of the state through whom the state acts.” Guthrie, supra at 503. Although the Authority has raised the defense of sovereign immunity, this issue has not yet been addressed in the trial court and is not an issue presented in this appeal. Since the issue of the Authority’s immunity has not been addressed, we do not determine whether the individual Authority members have official immunity as an extension of the Authority’s sovereign immunity.

Nevertheless, we find the trial court correctly granted summary judgment in favor of the individual Authority members because they were immune from suit under the provisions of OCGA § 51-1-20. Under the plain language of OCGA § 51-1-20 and the Legislature’s designation of the Authority as “a political subdivision of the State of Georgia” pursuant to Ga. L. 1965, p. 2042, the individual Authority members were entitled to the immunity provided by the statute. Section 51-1-20 provides a supplemental form of immunity from civil lia-jility to “person[s] serving with or without compensation as a member .. . of any local governmental agency, board, authority, or entity . . for any act or any omission to act arising out of such service if such person was acting in good faith within the scope of his or her )fficial actions and duties and unless the damage or injury was caused jy the willful or wanton misconduct of such person.” OCGA § 51-1-10. Furthermore, unlike official immunity, the immunity provided mder OCGA § 51-1-20 applies regardless of whether the nature of he person’s actions at issue were ministerial or discretionary. Dyches v. McCorkle, 212 Ga. App. 209, 215 (441 SE2d 518) (1994). Accord-ngly, the individual Authority members were entitled to immunity rom personal liability in this case if their complained of actions were ;aken in good faith within the scope of their official duties with the Authority and the complained of damage was not caused by any wil-ul or wanton misconduct on the part of the Authority members.

In opposition to summary judgment, Airmotive produced an affi-lavit from one of its representatives stating that the Authority’s dis-ussion of matters relating to and decision on termination of the lease ras made in sessions closed to the public in violation of Georgia’s )pen Meetings Act (OCGA § 50-14-1 et seq.). Airmotive argues that ny actions taken by Authority members in violation of the Open üeetings Act were necessarily outside the scope of their official duties nd, therefore, no immunity applies. We need not determine whether Hr not the Authority took any action in violation of the Open Meet-Higs Act. Although an official action taken at a meeting not open to Hpe public in violation of the Open Meetings Act may be invalidated n a timely action contesting the violation is made under OCGA § 50-14-1 (b), it does not follow that any actions taken by Authority members which may have violated the Open Meetings Act lost their character as actions taken within the scope of the members’ official duties for purposes of the immunity provided by OCGA § 51-1-20.

Decided October 4, 1994.

Fanning & Hudson, Steven E. Fanning, for appellant.

Glover & Davis, A. Mitchell Powell, Jr., Freeman & Hawkins, H Lane Young II, Allen L. Broughton, for appellees.

Airmotive also contends that an issue of fact remains as to general allegations in its complaint that Authority members wilfully or maliciously interfered with its business operations. Airmotive produced evidence that no Authority member took any action with respect to Airmotive’s business that was not done within the scope of their official duties in relation to the termination of the lease and there is no evidence tending to show otherwise. There is no evidence sufficient to create a jury question as to allegations that Authority members acted wantonly, wilfully or maliciously to damage Airmo-tive. See Dyches, supra at 217. In the absence of evidence sufficient to create a factual issue, the trial court correctly concluded that the five individual Authority members were not personally liable for the damages sought and properly granted summary judgment in their favor on this claim. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment affirmed.

Johnson, J., concurs. Beasley, P. J., concurs in the judgment only.

       Airmotive does not contend the Authority’s termination of the lease was invalidated < the basis that it took timely action contesting alleged violations of the Open Meetings A


author: Birdsong, Presiding Judge.

text:
    A94D0398.
    JUSTICE v. MUSSELMAN et al.
    (450 SE2d 460)
   Birdsong, Presiding Judge.

Applicant has failed to carry his burden of demonstrating tha his application should be granted, within the meaning of Harper v. Harper, 259 Ga. 246 (378 SE2d 673); accordingly, his application fo discretionary appeal is denied. However, examination of the order c the trial court reveals a procedural deficiency in that said order doe not contain a specific finding as to the conduct that authorized th award under OCGA § 9-15-14. See generally MacDougald v. Phillips 262 Ga. 778 (425 SE2d 652); Coker v. Mosley, 259 Ga. 781 (387 SE2d 135). Accordingly, this case is remanded with direction that the trial court either include in its order findings of the conduct that authorized the award or vacate its order. Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31).

Decided October 4, 1994.

Garner, Reynolds & Pruitt, Michael E. Garner, for appellant.

William B. Hardegree, for appellees.

In aid of our jurisdiction and to protect our judgment following amendment or vacation of the order, the parties may timely, submit an application for discretionary appeal of the resulting order of the trial court. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV.

Application denied and remanded with direction.

Blackburn and Ruffin, JJ., concur.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1687.
    JAMES v. THE STATE.
    (449 SE2d 126)
   Johnson, Judge.

Ronald James appeals his conviction of possession with intent to distribute cocaine for which he was sentenced to life in prison. In response to a telephone tip from an undisclosed source, four police officers traveled to a rural area and found James standing in front of a :ar which matched the description given by the informant. When po-ice drove up and asked James to come over and talk to them, he fled, flopping a clear plastic bag containing 1.2 grams of cocaine. A subsequent search of the car revealed an amber pill bottle containing resi-lue identified as cocaine.

1. Giving deference to James’ status as a pro se appellant, we lonstrue his first enumeration of error as an assertion that there was nsufficient evidence of his intent to distribute the cocaine to support he conviction. A review of the transcript reveals only two references vhich suggest distribution. The state, in its brief, asserts that the dis-jatcher received a telephone call informing him that James was in the vlcCrayville area selling drugs. In fact, the dispatcher’s testimony reading the telephone call does not mention any sale of drugs. A sub-equent witness, the arresting officer, testified that the dispatcher had old a third police officer “about somebody selling drugs in the Mc-flayville area.” Even if this comment is construed as admissible iouble hearsay, in that it explained the conduct of the police in going o McCrayville, it is not probative and cannot be considered for the ruth of the statement. The jury was so instructed by the trial court. See State v. Speir, 189 Ga. App. 254, 255 (2) (375 SE2d 298) (1988). The second reference to distribution is found in the testimony of the arresting officer who was asked whether, in his opinion, the 1.2 grams of cocaine found in a bag dropped by James would be an amount normally held by a user. He responded that it would not, raising an inference that it would be an amount held by someone engaged in selling drugs.

“[M]ere possession of contraband without more will not serve as the basis for a conviction for possessing contraband for purposes of sale. [Cit.]” Wright v. State, 154 Ga. App. 400, 401-402 (1) (268 SE2d 378) (1980). OCGA § 16-13-31 sets forth specific quantity and purity requirements of cocaine necessary to authorize a conviction of trafficking in cocaine. OCGA § 16-13-30, however, has no such quantitative or qualitative guidelines for differentiating between mere possession and possession with intent to distribute cocaine. We have reviewed several previous decisions of this court which have addressed the issue of the sufficiency of the evidence of the intent to distribute element of the offense, in an effort to ascertain what has been deemed to be sufficient evidence to support a conviction of possession with intent to distribute cocaine. In Wright, supra, a scale, plastic bags, coin envelopes and cash found on the appellant’s dresser were held to be sufficient indicia of intent to sell marijuana. In Williams v. State, 199 Ga. App. 544 (405 SE2d 539) (1991), cocaine was divided between more than 30 small glassine or clear plastic packages, this court held that the manner of packaging authorized an inference that appellant intended to distribute the contraband. In Sams v. State, 197 Ga. App. 201 (397 SE2d 751) (1990), evidence was presented regarding previous sales of cocaine made by appellant on the day of his arrest. Scales, drug paraphernalia, baking soda for cutting the cocaine, and a large amount of cash primarily in $20 bills were also found in appellant’s possession. Finally, in Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991), evidence of a prior conviction of possession of cocaine with intent to distribute was introducec as a similar transaction. Additionally, the arresting officer in Davis was qualified as an expert witness on the “uses and activities of drugs on the street and how they are dealt.” As an expert he was allowed t( give his opinion that possession of six pieces of crack cocaine woulc generally be for distribution, as opposed to personal use. In all o: these cases, competent evidence was offered which linked the posses sion of the cocaine to the enterprise of sale.

“On appeal the evidence must be viewed in the light mos favorable to support the verdict, and appellant no longer enjoys a pre sumption of innocence.” (Punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). Even viewing the evidence in this light, here the only evidence presented purporting to establisl that James intended to distribute cocaine was the reference to a hearsay tip from an unidentified source that James was selling drugs and the opinion testimony of the arresting police officer, not qualified as an expert, that 1.2 grams of cocaine would not normally be an amount held by a user. This comment was not linked to James or to the events leading to James’ arrest. While the evidence would clearly support a conviction on a charge of possession of cocaine, it is not sufficient to support the conviction of possession with intent to distribute. There being no other evidence in this record which would support a conviction of possession of cocaine with intent to distribute, James’ conviction must be reversed.

2. In light of our holding in Division 1, we need not reach James’ other asserted errors.

Judgment reversed.

Pope, C. J., Birdsong, P. J., Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., Beasley, P. J., and Andrews, J., dissent.

Beasley, Presiding Judge,

dissenting.

The judgment of conviction must be affirmed because we cannot weigh the evidence or judge the credibility of witnesses. Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993).

Of course, the telephone tip, even if it may be inferred to have advised that defendant was selling drugs because this is what was relayed to the drug squad, was not probative of defendant’s intent, as the majority reasons. Its source was not even identified, much less subject to cross-examination on the issue of what defendant was doing when the police arrived.

The testimony of the arresting officer did qualify, however, as expert opinion. The officer had been on the drug squad for two years and had been involved in “probably over 150 or 200” drug arrests. About 95 percent of them involved cocaine. He explained how, based on his experience, he determines the street value of cocaine. He gave his opinion that the two smaller pieces in this case would probably be $20 pieces and the large piece $100 or $150. He also testified that in his experience, the amount of cocaine in the bag in this case would not normally be held by a user.

Although the court did not expressly qualify the witness as an expert under OCGA § 24-9-67, the court permitted the opinion on the basis that the underlying facts on which it was based were given. DCGA § 24-9-65. See Peterson v. RTM Mid-America, 209 Ga. App. 391, 692 (1) (434 SE2d 521) (1993). Opinion of the type given by the efficer was qualified as expert testimony in Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991). Here, the officer’s experience, Rvhich was greater than that in Davis, qualified him as an expert, and fthe court charged the jury on expert testimony, stating that such had been given in this case. The court did not confine this instruction to the scientific evidence of the nature of the substances seized and of defendant’s urinalysis results, the latter of which was negative for cocaine. The court did not expressly qualify these witnesses as experts either, see Hudson v. State, 175 Ga. App. 692, 693 (4) (334 SE2d 20) (1985), so the charge was not limited to their testimony.

Decided September 9, 1994

Reconsideration dismissed October 5, 1994.

Ernie M. Sheffield, for appellant.

Ronald James, pro se.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

I conclude that the officer’s opinion testimony that the three pieces of crack cocaine of a total value of $140-$190 would not normally be held by a user, together with all of the other circumstances, was sufficient to prove beyond a reasonable doubt that defendant possessed cocaine with intent to distribute it.

I note that the jury gave particular attention to this element of the case. Within 20 minutes of beginning its deliberations, it sought additional instructions on the definition of intent, the absence of evidence, and what there must be to prove intent.

I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.


text:
    A94A1213, A94A1259.
    FOWLER et al. v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY et al. (two cases).
    (449 SE2d 157)
   Andrews, Judge.

Robert and Kathy Fowler appeal the trial court’s grant of summary judgment to Prudential Property & Casualty Insurance Company and its agent, Julian Harwell, in these two consolidated actions.

In March 1990, Prudential issued an automobile liability insurance policy to Robert Fowler with Kathy Fowler listed as an additional insured. In September 1990, the Fowlers received a premium statement bearing a due date of October 12, 1990 and the following statement: “Payment must be received by the due date. There is no grace period.” The policy itself also provided that the premium must be paid by the due date and that “[failure to pay by the date shown in any premium notice sent to you will result in termination.” Later in September, the Fowlers, who were experiencing financial difficul-l ties, met with Harwell to discuss, inter alia, the last date on which they could pay their premium. The Fowlers contend that Harwell told them during this meeting that they had a grace period, which was usually 30 days, and that they would be covered through November 12. On October 16, Prudential sent the Fowlers a notice of intent to cancel coverage effective October 31, if the premium payment was not received by that date. When Prudential did not receive payment by October 31, it cancelled coverage for nonpayment of premiums. On November 4, the Fowlers mailed their payment to Prudential, which received it on November 8 and reinstated coverage as of that date. On November 7, Robert Fowler was involved in an automobile accident. Prudential subsequently denied his claim for benefits on the ground the policy was not in effect at the time of the accident. The Fowlers brought suit against Prudential and Harwell seeking to enforce the policy based on Harwell’s alleged negligent misrepresentation that they had a grace period (Case No. A94A1213). They also named Prudential as the uninsured motorist carrier in a separate personal injury action arising out of the November 7 accident (Case No. A94A1259). The trial court granted summary judgment to Harwell in the first suit and to Prudential in both suits.

In two enumerations of error, the Fowlers argue the trial court erred in granting summary judgment to Prudential because Harwell, as an exclusive agent of Prudential, orally bound the policy through November 12. Specifically, they contend that Harwell’s statement that they had a grace period through November 12 was an oral endorsement which bound the policy through that date. We disagree.

“ ‘(O)ral statements by an agent of an insurance company generally cannot bind the insurance company....’ [Cit.]” Clark v. Superior Ins. Co., 209 Ga. App. 290, 293 (3) (433 SE2d 394) (1993). Although the existence of a confidential or fiduciary relationship will give rise to an exception to the above rule, there is no fiduciary relationship between the insured and the insurer or the insurer’s agent. Hyde v. Acceleration Life Ins. Co., 211 Ga. App. 153, 155 (438 SE2d 385) (1993). Furthermore, “[t]he expression of an opinion as to coverage does not work an estoppel — even against the agent who voiced it, or against his principal.” (Citations and punctuation omitted.) Thomas v. Union Fidelity Life Ins. Co., 168 Ga. App. 267, 269 (3) (308 SE2d 309) (1983).

Moreover, in view of the specific terms of the policy and the lack 3f any evidence that Harwell had authority to orally bind the policy past the premium due date, we cannot say the Fowlers were justified n relying on Harwell’s alleged misrepresentation. See Hyde, supra at 155; see also Thompson v. Pate, 193 Ga. App. 418 (c) (388 SE2d 30) 1989). The Fowlers are chargeable with knowledge of the contents of ;heir policy. Parris v. Pledger Ins. Agency, 180 Ga. App. 437, 439 (2) (348 SE2d 924) (1986). Here, the policy specifically provided that the premium must be paid by the due date and that coverage terminated if payment was not received by that date. The premium statement itself repeated this language and specifically stated that there was no grace period. Moreover, the policy further provided that changes could only be made by endorsement issued by Prudential or its subsidiaries and there is no evidence that Prudential issued any such endorsement. Hutsell v. U. S. Life Title Ins. Co., 157 Ga. App. 845 (278 SE2d 730) (1981), relied upon by the Fowlers for the proposition that Harwell had authority to extend the premium due date by oral endorsement, is distinguishable. In that case, we found a question of fact existed as to coverage since the insurer’s agent was specifically authorized by the policy to make written endorsements to it and the agent had written a letter to the insureds which arguably enlarged coverage under the policy. Accordingly, we conclude the trial court did not err in granting summary judgment to Prudential in Case No. A94A1213.

Decided October 5, 1994.

Manely & Silvo, Michael E. Manely, Lorraine R. Silvo, for appellants.

Dennis, Corry, Porter & Gray, R. Clay Porter, Virginia M. Greer, Crim & Bassler, Nikolai Makarenko, Jr., W. Clint Rhodes, for appel-lees.

Because the Fowlers’ policy was not in effect at the time of the accident in question, they were not entitled to no-fault benefits under the policy and the trial court properly granted summary judgment to Prudential as their purported UM carrier in Case No. A94A1259.

Judgments affirmed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A1266.
    DEAN v. THE STATE.
    (449 SE2d 158)
   Ruffin, Judge.

Appellant was charged in two separate Georgia Uniform Traffic Citations with weaving over the roadway and driving under the influence. He filed special and general demurrers to the citations on the ground that they were fatally defective because they failed to identifj the specific criminal conduct and statutory provisions allegedly vio lated by appellant. The following week, appellant’s arraignment anc trial commenced in the Probate Court of Whitfield County. Appel lant’s trial counsel interrupted the testimony of the first witness t< assert the demurrers. After hearing argument of counsel, the court announced that it would take the matter under advisement until July 13,1993. However, on June 21,1993, the court, sua sponte, bound the case over to superior court without ruling on the demurrers. Contemporaneously with the entry of the “Bind-Over Order,” appellant filed a written objection to the bind-over. Thereafter, a new accusation was filed in the superior court charging appellant with driving under the influence. Appellant then filed a plea of former jeopardy, which the superior court denied. The court concluded that by binding the case over to the superior court, the probate court, in effect, agreed with appellant’s special demurrers and since proper accusations were not filed, the probate court proceeding was a nullity. Therefore, the prosecution could proceed in superior court. This appeal followed.

The superior court held, essentially in accordance with OCGA § 16-1-8 (d) (1) and Roberts v. State, 171 Ga. App. 131 (1) (319 SE2d 42) (1984), that the prosecution of appellant in superior court was not barred because the probate court lacked jurisdiction over the appellant since a proper accusation was not filed. However, the instant case is not a situation in which no accusation was filed at all, as was the case in Roberts. Nor are the citations deemed “improper” such that a prosecution based thereon would be a nullity since the defects cited by appellant in his demurrers were amendable. See Gilbert v. State, 17 Ga. App. 143 (86 SE 415) (1915); Goldsmith v. State, 2 Ga. App. 283 (58 SE 486) (1907). “It is well-settled that when an indictment or accusation charges a crime which is capable of being committed in more than one way, but fails to charge the manner in which the crime was committed, the indictment or accusation is subject to special demurrer because a defendant is entitled to know how the State will prove the crime charged. [Cits.]” Scott v. State, 207 Ga. App. 533, 535 (428 SE2d 359) (1993). Thus, contrary to the findings of the superior court, the probate court had jurisdiction over the case, and the probate court proceeding was not a nullity. Accordingly, we must determine whether the appellant was placed in jeopardy in the probate court.

| The trial court held and the State argues that appellant waived ¡the right to assert double jeopardy because the probate court proceeding was terminated in response to appellant’s demurrers.

I “No person shall be put in jeopardy of life or liberty more than pnce for the same offense except when a new trial has been granted ¡after conviction or in case of mistrial.” Ga. Const, of 1983, Art. I, Sec. E, Par. XVIII. “A prosecution is barred if the accused was formerly ¡prosecuted for the same crime based upon the same material facts, if Jsuch former prosecution .. . [w]as terminated improperly ... in a trial Before a court without a jury, after the first witness was sworn but Before findings were rendered by the trier of facts. ...” OCGA § 16-1-8 (a) (2). Termination is not improper if the “accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination.” OCGA § 16-1-8 (e) (1).

Decided October 5, 1994.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Bert M. Poston, Jr., Assistant District Attorney, for appellee.

While it is true that the termination of the probate court trial occurred subsequent to appellant’s demurrers, it does not necessarily follow that the bind-over to superior court was “in response” to appellant’s actions since the probate court judge failed to rule on the demurrers and appellant sought from the probate court a dismissal of the citations and not merely a transfer to a different court for further prosecution.

Nonetheless, the probate court trial was terminated after the first witness was sworn and before findings were rendered by the trier of fact, and appellant, having failed to obtain a ruling on his special demurrer before the start of the trial, waived his right to challenge the citations and therefore submitted to be tried under the citations. See Chambers v. State, 22 Ga. App. 748, 753 (97 SE 256) (1918); OCGA § 17-7-113. Thus,, appellant was placed in jeopardy in the probate court trial. Thereafter, when the trial was terminated, appellant neither consented to the bind-over to superior court nor did he perform any affirmative act by which he waived his right to challenge the court’s sua sponte order. Therefore, under OCGA § 16-1-8, the probate court improperly terminated the trial, and the superior court erred in denying appellant’s plea of former jeopardy.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1305.
    GUDGER SURVEYING, INC. v. PAUL LEE CONSULTING ENGINEERING ASSOCIATES, INC. et al.
    (449 SE2d 331)
   Ruffin, Judge.

In 1992, Doekes Gunning Homes, Inc. (“Doekes”) retained appel lant to perform a survey locating utility easements on a lot prior t the construction of a house on the lot. In the course of completing th survey, appellant relied on a subdivision plat prepared by Paul Lei Consulting Engineering Associates, Inc. (“Paul Lee Consulting’ which showed the general location and width of natural gas an] power easements on the lot. In 1986, Paul Lee Consulting had bee hired by Charles Jones, the subdivision developer, to prepare a survey showing the general location of easements crossing the lots in the subdivision. Upon completion of construction, performed in reliance on appellant’s survey, Doekes was advised by Southern Natural Gas that Doekes’ house was on its right of way.

Doekes sued appellant for negligence in the performance of the survey and in appellant’s reliance on an incorrect plat of the subject property rather than making a thorough on-site inspection. Appellant filed a cross-claim against Paul Lee Consulting and Paul Lee, appellees herein, for negligence in the preparation of the subdivision plat upon which appellant relied. Affidavits attached to appellant’s cross-complaint allege that the plat incorrectly indicates that the 105 feet utility easements are 100 feet; that the plat should have specifically defined each easement’s width and location relative to the subdivision corners; and that appellees’ negligent performance fell below the accepted standards of surveying in that profession. Appellees moved the court for summary judgment on the cross-claim on the grounds that the claim was barred by the statute of limitation and a lack of privity between appellant and appellees. In support of their motion for summary judgment, appellees attached the affidavits of Charles Jones and Paul Lee which indicated that appellees were not hired to give the exact location of utility easements. The trial court granted appellees’ motion, and this appeal followed.

1. Appellant contends the trial court erred in determining that privity was required in order for appellant to recover from appellees. Appellant argues that the plat was a public record, upon which sur-Iveyors generally rely, and that privity is not required for third parties to be liable for damages which arise as a result of an individual’s reliance upon the third party’s professional advice.

Appellant also contends that by failing to accurately depict the location and width of the easements, appellees prepared the plat in violation of state and county codes. However, OCGA § 15-6-67 (b) (4) (E) and (F) require that all plats, filed with the clerk of superior show the widths of all rights of way crossing property and ease-aents, if pertinent. Since the undisputed evidence shows that the pecific width and location of the easements were not pertinent, apellees were not negligent per se in their depiction of the easements.

“It is well settled that privity is not necessary to found a suit in tegligence. [Cit.] . . . One who in the course of his business, profession >r employment supplies false information is subject to liability for lamages caused by others’ justifiable reliance upon the information, /here he fails to exercise reasonable care or competence in providing he information, and where the loss is suffered by one for whose bene-it he supplies the information or knows that the recipient intends to upply it, and whom he intends the information to influence or knows that the recipient so intends. [Cit.]” Southeast Consultants v. O’Pry, 199 Ga. App. 125 (1) (404 SE2d 299) (1991).

Decided October 5, 1994.

Douglas D. Middleton, for appellant.

Awtrey & Parker, Dana L. Jackel, Ken S. Waldrop, for appell lees. I

The record demonstrates that in 1986 appellees prepared the plat in accordance with Charles Jones’ requirements. Jones indicated that he only needed to know the general location of the easements. There is no evidence that appellees knew Jones’ intended use of the plat, i.e., whether he intended to supply the plat to others. Nor is there evidence that appellees intended to influence other surveyors, fellow professionals who presumably would be able to detect such flaws in the plat.

Moreover, “[i]n making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach. If such cannot be shown there will be no liability in the absence of privity, wilfulness or physical harm or property damage.” Badische Corp. v. Caylor, 257 Ga. 131, 133 (356 SE2d 198) (1987). There is no evidence that in depicting the easements five feet narrower or by failing to situate the easements properly on the plat, as alleged by appellant, appellees intended to induce other surveyors to rely on the inaccurate plat and, more importantly, as a professional, to act upon the reliance. Compare Robert &c. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983); Samuelson v. Lord, Aeck & Sergeant, 205 Ga. App. 568 (423 SE2d 268) (1992); Southeast Consultants v. O’Pry, supra (laypersons justifiably relied on misrepresentations by professionals).

Based on the foregoing, we conclude that the evidence does not demonstrate that appellant was a foreseeable recipient of the plat or that appellant justifiably relied on the plat. Therefore, the trial court did not err in granting summary judgment to appellees.

2. Since we have determined that appellant does not have a cause of action for negligence against appellees, we need not consider whether the complaint was also barred by the statute of limitation, as enumerated by appellant. |

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur. I


text:
    A94A1309.
    SIMPSON v. THE STATE.
    (449 SE2d 160)
    Decided October 5, 1994.

      William R. Thompson, Jr., for appellant.

      T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Assis

      tant District Attorney, for appellee.
   Ruffin, Judge.

The appellant, Lemuel Simpson, was convicted of selling cocaine and distributing cocaine within 1,000 feet of a public housing project. His sole contention on appeal is that the evidence was insufficient to support his conviction.

On April 12, 1993, a detective with the City of Calhoun Police Department utilized an informant to arrange a controlled street purchase of crack cocaine from the appellant. The detective first searched the informant and his automobile, and placed an audio transmitter on his person and in the vehicle, so that the transaction could be monitored and recorded. The informant then drove to the appellant’s neighborhood but was unable to make contact with the appellant because he was congregating with several other people. The informant rejoined the detective at a prearranged meeting place, where he underwent another search by the detective before making another effort to approach the appellant.

On the second attempt, the informant succeeded in approaching the appellant and purchasing two pieces of crack cocaine for $40. After the purchase, the informant returned to the detective, handed over the cocaine, and described the clothing worn by the appellant. The detective then drove to the appellant’s neighborhood and observed the appellant wearing the attire described by the informant. At trial, the detective testified that he was familiar with the appellant and recognized his voice on the audiotape of the transaction.

It was uncontroverted that the informant participated in the operation as part of a deal to avoid his own prosecution on drug charges. The appellant contends that under these circumstances, the informant’s testimony was incredible and thus insufficient to support any conviction.

The credibility of witnesses and weighing of the evidence are matters within the sole province of the jury. Hesterlee v. State, 210 Ga. App. 330 (1) (436 SE2d 32) (1993). Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A94A1447.
    GIVENS v. THE STATE.
    (449 SE2d 149)
   Smith, Judge.

Anthony Lee Givens was tried and convicted by a jury on three counts of selling cocaine. He appeals following the denial of his motion for new trial.

1. Givens essentially contends the trial court erred in allowing a chemist with the Georgia Crime Lab to testify over objection as to the results of tests performed on three exhibits identified as cocaine at trial. Givens received the results of testing originally performed on the exhibits, but the chemist performing those tests was unavailable to testify as to those results because he was no longer employed by the Georgia Crime Lab. The witness retested the exhibits immediately prior to testifying, but did not reduce his findings to writing. It is the State’s failure to furnish a written report of this retesting that is alleged as error.

It is well settled that OCGA § 17-7-211 does not attempt to mandate the furnishing of written scientific reports that do not in fact exist. Law v. State, 165 Ga. App. 687, 690 (3) (302 SE2d 570) (1983), aff'd 251 Ga. 525, 528 (2) (307 SE2d 904) (1983); see also Rower v. State, 264 Ga. 323, 324-325 (5) (443 SE2d 839) (1994). Givens argues that this interpretation of the statute frustrates its purpose, which he contends is “to give defendants notice of the results of scientific tests so that defendants can arrange for their own tests,” and that our interpretation allows this purpose to be defeated with ease.

Even if we accept Givens’s premise, it is clear that he has not been visited by the hypothetical evil he identifies. The original scientific testing was performed in 1991, and its results (which were not I introduced into evidence) were made available to Givens almost two years prior to trial. We find Givens’s position to be both unsupported by legal authority and uncompelling on its particular facts. Further, we find it highly unlikely that, under any circumstances, the State would deliberately forego the inculpatory impact of a written scientific report at trial merely because furnishing the report to the accused in advance as required under OCGA § 17-7-211 might prompt] him to pursue further scientific testing on his own.

2. Givens also challenges the chain of custody with respect to the] same exhibits at issue in Division 1. The crux of Givens’s objection atl trial was that the chain has been broken because the crime lab em-f ployee who originally received the exhibits was not called to testify.] We find the facts of this case to be indistinguishable from thost presented in Williams v. State, 153 Ga. App. 421, 422 (3) (265 SE2d 341) (1980). Since there is no affirmative evidence of tampering, the trial court did not err in treating the Georgia Crime Lab as a single “link” in the chain of custody for admissibility purposes. As Williams implies, mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury. Id. The State showed with reasonable certainty that no tampering or alteration occurred in this case.

Decided October 5, 1994.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.


text:
    A94A1504.
    POPHAM v. THE STATE.
    (449 SE2d 150)
   Smith, Judge.

Leslie Suzanne Popham was indicted by a Cobb County grand jury for possession of cocaine. OCGA § 16-13-30. She entered a guilty plea pursuant to Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824) (1991), reserving her right to appeal the trial court’s denial of her motion to suppress evidence.

At the hearing on the motion to suppress, a Cobb County police officer testified he was on duty at a construction site in his patrol area at approximately 11:00 p.m. There were no street lights in the area, and eight to ten houses in the subdivision were still under construction. He saw a vehicle parked on a cul-de-sac at the “very rear” of the construction site. As he watched, the driver turned on the headlights and left the subdivision. The officer testified he was concerned because of thefts and other problems such as teenagers “parking or drinking” late at night in other construction sites in the area, including an incident in which he had made an arrest for theft a few miles away. He followed the vehicle out of the construction site and made a traffic stop.

Popham was sitting in the front passenger seat of the vehicle. The officer arrested the driver of the vehicle for driving with a suspended license, and during this process, Popham moved “quickly” from the passenger to the driver’s seat. The officer left his patrol car and walked up to ask Popham if she had a valid driver’s license to remove the vehicle from the scene. During his conversation with her he asked if “she had anything in the vehicle.” Popham got out of the car and said, “Go ahead, take a look.” As the officer looked into the driver’s area from outside the car, Popham re-entered the driver’s side. The officer asked her if she had anything in the glove box, and she opened it up and said, “See, I don’t have anything in here.” The officer walked around to the passenger side and opened the door. He then saw and seized a small plastic bag containing a “white rock” lying on the passenger seat “in plain view,” and a second bag lying on the floor beside the seat.

Popham first contends that the police officer had no basis for the initial investigatory stop. However, in Jones v. State, 156 Ga. App. 730 (275 SE2d 778) (1980), we affirmed the trial court’s refusal to suppress evidence obtained after a stop made under almost identical circumstances. State v. Golden, 210 Ga. App. 800 (437 SE2d 492) (1993), cited by Popham, is factually distinguishable. In Golden, the trial court granted the defendant’s motion to suppress. The arresting officer testified he stopped the defendant because it was unusual for a group of vehicles to be gathered in a wooded area after dark. The defendant offered evidence contradicting the officer’s testimony on virtually every point, including testimony that it was not dark, there were no woods, and the area was a regular gathering place for motorcycle and four-wheel-drive enthusiasts. 210 Ga. App. at 801. This court affirmed, noting that where a conflict exists in the evidence, the ruling of the trial court will be upheld where there is evidence to support it. 210 Ga. App. at 802. Here, as in Golden, there was a conflict in the evidence, and it was sufficient to support the trial court’s determination.

Popham also asserts that the police officer exceeded the scope of her permission for a search of the vehicle. Citing State v. Diaz, 191 Ga. App. 830 (383 SE2d 195) (1989), and State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991), she contends she gave permission for the officer merely to “take a look” in the vehicle and later to “see” in the glove compartment, but that her permission terminated at that time and she did not consent to his opening the passenger side door for a closer look. However, both cases cited by Popham involved the search of closed containers within a vehicle and held that to be an impermissible extension of the scope of the defendants’ consent. 191 Ga. App. at 832; 201 Ga. App. at 324.

Here there was no search of a closed container. The plastic bags were in plain view on and beside the passenger seat, and the officer did not touch or move anything in the interior of the car. Garcia v. State, 207 Ga. App. 653, 656 (1) (c) (428 SE2d 666) (1993). Moreover, Popham not only invited the officer to “go ahead, take a look,” she also opened the glove compartment and repeated her invitation to the officer. There is no evidence that she withdrew her consent or gave any indication that the officer should stop looking. Id. at 655. The ordinary action of opening the passenger door does not rise to the level of opening containers within the car or disassembling parts of the vehicle. Compare Amato v. State, 193 Ga. App. 459 (388 SE2d 54) (1989).

Decided October 5, 1994.

Steven A. Cook, for appellant.

Thomas J. Charron, District Attorney, Ken Israel, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

On review of a decision on a motion to suppress, we will construe the evidence most favorably to uphold the trial court’s findings, and we will adopt the trial court’s determinations on disputed facts and credibility if there is any evidence to support them. Corley, supra at 320. The evidence in the record supports the trial court’s ruling that Popham’s consent to search was freely given and included an unobstructed view of the passenger compartment within its scope. The trial court did not err in denying Popham’s motion to suppress.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.

       This procedure was still permissible on February 18, 1994, the date the plea was entered, but has since been disapproved. Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994). See Jackson v. State, 214 Ga. App. 726 (448 SE2d 761) (1994).


text:
    A94A1554.
    WALKER v. THE STATE.
    (449 SE2d 322)
   Blackburn, Judge.

Following a trial by jury, the appellant, John Henry Walker, was convicted of one count each of child molestation, enticing a child for indecent purposes, and statutory rape. All of the offenses involved the daughter of Walker’s live-in girl friend. The trial court denied his motion for new trial, and this appeal followed.

1. Walker asserts that the trial court erred in failing to charge the jury on circumstantial evidence as requested. The record reflects that no request was made by Walker for such instruction, however, the trial court did instruct the jury on circumstantial evidence. Accordingly, this argument presents nothing for appellate review. Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994).

2. Next, Walker maintains that the trial court erred in allowing the prosecution to question a character witness on Walker’s prior federal convictions for possession of stolen mail and forgery of treasury checks. The State maintains that a good faith showing is all that is required and since the questions were based upon NCIC reports, the requisite showing was made.

When a defendant objects to the prosecution’s questioning of his character witnesses about offenses of which the State has not given notice under OCGA § 17-10-2, the prosecution is required to demonstrate that the questions were asked in good faith, and based on reliable information that can be supported by admissible evidence. Christenson v. State, 261 Ga. 80 (8) (c) (402 SE2d 41) (1991). This Court has held that NCIC reports are reliable. See generally Paxton v. State, 160 Ga. App. 19 (1) (285 SE2d 741) (1981) (NCIC reports recognized as reliable enough to establish probable cause for a warrant-less arrest). Consequently, the prosecution in this case demonstrated that the questions were asked in good faith and based upon reliable information.

3. Walker, an African American, enumerates as error the alleged refusal of the trial court to allow the following to be asked on voir dire: “Are you racially biased towards blacks in any way?” The record reflects that defendant asked this question of a juror, who responded: “No.” Without an objection being stated by the State to the question and answer, there followed a discussion between the court and defendant’s attorney in which the court stated: “I don’t think you can raise the race issue. . .. Get the law and show it to me then.. . . Well, get it and show it. to me now.” Defendant did not provide the requested authority, nor did he ask the question of any other juror.

The trial court did not strike the answer, but rather stated: “If you can show me some law then I’ll go back and let you do it.” The only time defendant asked the subject question it was in fact answered and he never sought to ask it again. Under similar circumstances, it was recently held in Dean v. State, 211 Ga. App. 28 (438 SE2d 380) (1993), that defense counsel’s acquiescence during voir dire resulted in a waiver of the issue on appeal. There, upon counsel asking a potential juror about religious preference, the trial court commented, “Counsel, I’m not sure that’s relevant. . . . Do you have any other questions?” Id. at 29. Defense counsel proceeded to another question and it was held that he had waived any objection because the trial court’s comments were in the nature of a question or an invitation to discussion rather than a sua sponte ruling. ,

OCGA § 15-12-133 provides, in part, “[i]n the examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including . . . any fact or circumstance indicating any inclination, leaning or bias which the\ juror might have respecting the subject matter of the action or the counsel or parties thereto.” (Emphasis supplied.) Georgia law pro-1 tects the right of the parties to secure an impartial jury, free of racial prejudice and the question should have been allowed. Legare v. State, 256 Ga. 302 (348 SE2d 881) (1986).

Under the facts of this case however, Walker had a fair and adequate opportunity during voir dire to explore the prospective jurors’ possible racial bias. As a part of the statutory questioning the jurors had been asked without affirmative response: “Have you any prejudice or bias resting on your mind either for or against the accused?” On voir dire, defendant asked if the venire socialized with blacks, if they employed blacks in their home, if they worked with blacks, if they supervised blacks or worked as peers, if they or their spouses belonged to any discriminatory fraternal, religious or social organizations and what type of bumper stickers or flags they displayed on their cars. The broad leeway allowed by the trial court distinguishes this case from Legare, supra, and Craig v. State, 165 Ga. App. 156 (299 SE2d 745) (1983).

As Judge Birdsong pointed out in a concurring opinion in Sanders v. State, 204 Ga. App. 37 (419 SE2d 24) (1992), counsel was not precluded from making further inquiry or from rewording and repos-iting his original question to the jury. In the present case, Walker’s counsel did reword his inquiry to ask the questions listed above.

Control of individual voir dire is within the sound legal discretion of the trial court and should not be disturbed on appeal absent manifest abuse. Lawton v. State, 191 Ga. App. 116 (381 SE2d 106) (1989). Any error of the trial court in putting a chill upon defendant’s right to ask the subject question during voir dire as authorized by OCGA § 15-12-133, was harmless error under the facts of this case. Walker v. State, 258 Ga. 443 (370 SE2d 149) (1988); Lawton v. State, supra.

4. The evidence of defendant’s guilt was amply established by the record. The victim positively identified the defendant as being the person who molested her on a regular basis from age six to ten. The victim cited in graphic detail numerous different incidents wherein the defendant performed digital and penile penetration as well as ejaculation on her body. Dr. Karen Stuart, a physician qualified as an expert in examination of sexually molested children, testified that the victim’s hymen had scar tissue which evidenced past tears. The age of the hymenal scarring as well as its appearance was entirely consistent with the victim’s report. The victim’s reported bleeding on a bed sheet after one incident with the defendant was corroborated by the victim’s mother, who recalled finding the bloody spot. Even the victim’s mother expressed her reluctance to leave defendant alone with the victim for fear of abuse. The defendant’s explanation that the bleeding was caused by the victim falling on a bicycle handlebar was medically impossible, according to Dr. Stuart. Ample evidence established defendant’s opportunity to abuse the victim, whose mother left her alone with defendant frequently. The victim gave consistent details of the abuse by defendant to her grandmother, social workers, police officers, and to the jury. The credibility of the witnesses is for the jury to determine as is the resolution of any conflicts in the testimony of witnesses. Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675) (1993); Turner v. State, 210 Ga. App. 328, 329 (1) (436 SE2d 66) (1993). Contrary to defendant’s contentions, the evidence supported the verdict and was not contrary thereto. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 163 Ga. App. 896 (296 SE2d 185) (1982); Rhodes v. State, 168 Ga. App. 10 (308 SE2d 33) (1983).

Decided October 5, 1994.

Pete Quezada, for appellant.

Douglas C. Pullen, District Attorney, Martha M. Dicus, Assistant District Attorney, Jerry G. Croley, Jr., for appellee.

5. Defendant enumerates as error the reference by the State during closing argument to the victim’s emotional scarring and to a panel member who had stated during voir dire that she had been molested as a nine-year-old child. The trial court sustained defendant’s objection to such remark and asked each juror if they could disregard the remark as instructed and every juror nodded affirmatively. Under such circumstances, it was not error for the trial court to deny defendant’s motion for mistrial. Schirato v. State, 260 Ga. 170 (391 SE2d 116) (1990).

6. Lastly, defendant enumerates as error the failure of the trial court to merge the charge of child molestation with the charge of statutory rape. While child molestation may be a lesser included offense of statutory rape, where separate and distinct acts of molestation occur which are short of rape or where they occur at different locations or on different dates, no merger occurs. This is especially true where the dates are not made material averments in the indictment. Shelton v. State, 196 Ga. App. 163 (395 SE2d 618) (1990); Jimmerson v. State, 190 Ga. App. 759 (380 SE2d 65) (1989). This enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.