text:
    73742.
    HARDEE v. ALLIED STEEL BUILDINGS, INC. et al.
    (356 SE2d 682)
   Birdsong, Chief Judge.

Preston, subcontractor, sued Allied Steel Building, Inc. (“Allied”), contractor, in DeKalb County for moneys owed on three different building contracts, one of which involved a building in Ellenwood for Joann Hardee. Two days later, Allied sued Joann Hardee in Clayton County for payment on the Ellenwood contract. Allied answered Preston’s DeKalb County suit, saying he had not received payment for the Ellenwood building from Joann Hardee, and that in any case Preston had erected the Ellenwood building incorrectly or at variance with the plans and specifications. Allied then vouched Joann Hardee into Preston’s DeKalb County suit, pursuant to OCGA § 9-10-13, but did not dismiss its Clayton County suit against her. Joann Hardee moved for dismissal of the DeKalb County vouchment on grounds that the Clayton County suit was pending prior to the vouchment. The trial court denied the motion to dismiss the vouchment and we granted this interlocutory appeal. Held:

1. The appellant, Joann Hardee, contends the vouchment procedure authorized by OCGA § 9-10-13 has been superseded by the third-party practice rule of the Civil Practice Act, OCGA § 9-11-14. It has not. The vouching statute provides that a defendant who may have a remedy over against another person can vouch the person into court merely by giving notice of the pendency of the action. It is a substantive and evidentiary law which makes the judgment rendered in the action against the defendant conclusive and binding upon the vouchee “as to the amount and right of the plaintiff to recover.” OCGA § 9-10-13. That is, the fact of the defendant’s liability to the plaintiff and the amount of that liability are matters binding upon the vouchee; the vouchee’s liability to the defendant cannot be determined in this action but a separate action must be filed by the defendant to determine whether the vouchee is liable to the defendant. Dodge Trucks v. Wilson, 140 Ga. App. 743, 746 (231 SE2d 818), aff'd 238 Ga. 636 (235 SE2d 142); Clary Appliance &c. Center v. Butler, 139 Ga. App. 233 (228 SE2d 211); McArthor v. Ogletree, 4 Ga. App. 429 (61 SE 859). The vouchee is not a party defendant (Masters v. Pardue, 91 Ga. App. 684 (86 SE2d 704), aff’d. 211 Ga. 772 (88 SE2d 385); see Clary Appliance &c., supra, p. 235) as he is in third-party practice under CPA Rule 14. Although he may defend for his own sake against the defendant’s liability to the plaintiff, no judgment is rendered against him.

Obviously third-party practice has the advantage of permitting a judgment against the third party for his liability to the defendant, thus avoiding the second action required to obtain a judgment against a vouchee. “It is supplementary, more extensive in scope, and in the main is a more adequate procedure since one lawsuit is made to serve the function of two,” but it does not supplant the device of vouching in a party. 3 Moore’s Fed. Practice § 14.02. In any case, the statute gives substantive rights insofar as it states the conclusive effect of a judgment upon a person vouched in but not a party, whereas Rule 14 is a procedural rule only; and for that reason alone OCGA § 9-10-13 cannot be said to have been abolished by the Civil Practice Act rule giving a permissive right to a defendant to bring in a third party. Besides, the legislature did not specifically abolish OCGA § 9-10-13 upon the enactment of the Civil Practice Act, and it cannot be said this statute was included in the general repealer because it is not in conflict with CPA Rule 14.

Since the enactment of the Civil Practice Act, the vouchment procedure has been largely abandoned; its procedural inadequacy to bind the vouchee to liability to the defendant is in fact a source of the third-party practice rule. But we hesitate to say there can never be a case where the defendant might wish to conclude another, by simple notice, to the fact and amount of the defendant’s own liability to a plaintiff, without making that other a party and giving him full rights in the case. The vouching procedure has clear limitations, but it is simple and performs a valuable function. Evidently the defendant does not want to try in this case the question of Joann Hardee’s liability to it on its contract with her; but if it did not vouch her into this case, she would not be bound by the adjudication of Allied Steel’s liability to the subcontractor Robert Preston or the amount of that liability. Southern R. Co. v. Acme Fast Freight, 193 Ga. 598, 600 (19 SE2d 286). Estoppel by judgment (collateral estoppel) would not bind her because she is not a party to this suit. See Delta Air Lines v. Woods, 137 Ga. App. 693, 695 (224 SE2d 763); King Sales Co. v. McKey, 105 Ga. App. 787, 788 (125 SE2d 684). Vouchment is a right granted to the defendant under the statute, as is the binding effect of the judgment against the vouchee. The vouchee can protect her interests by coming in and defending against the voucher’s liability to the plaintiff; if the vouchee objects to the vouchment she can ignore it, but she does so at her peril because the statute makes the judgment binding on her, and by the facts may reflect her own liability to the defendant. Southern R. Co., supra, p. 601.

The appellant vouchee contends she is not a proper party for vouchment because she is an absolute stranger to plaintiff Robert Preston’s contract with the defendant Allied. See Blankenship v. Smart, 102 Ga. App. 666 (117 SE2d 257). That may be true in a strict legal sense but if the defendant is liable on its contract with the plaintiff, this is certainly a matter of interest to the defendant when it comes time to seek payment from the owner Joann Hardee for the same subject matter. This is the purpose the statute was meant to serve, in a nutshell, by giving the right to defendant, and the vouchee Joann Hardee cannot object to the vouchment merely because she would rather not be concluded as to the amount and fact of Allied Steel’s liability to Preston.

Decided April 9, 1987.

G. Robert Oliver, for appellant.

Walter C. Alford, William H. Smith, Jr., for appellees.

2. As to the vouchee’s claim that the vouchment is barred because the defendant’s suit against her in Clayton County was pending prior to the vouchment, the vouchee has failed to make any argument or citation of authority on this point, and it is therefore abandoned pursuant to Court of Appeals Rule 15 (c) (2); see Cowart v. Webster, 152 Ga. App. 542 (263 SE2d 277).

We note, however, that it is clear that Joann Hardee is not a party defendant in this case by virtue of the vouchment; the vouchment is not a suit against her and she will not suffer a judgment against her by virtue of the vouchment. Therefore, the vouchment is not abated by a “prior pending suit” under OCGA § 9-2-5. See Haisten v. Tanner-Brice Co., 211 Ga. 821 (89 SE2d 172); Wilson v. Atlanta, K&N R. Co., 115 Ga. 171 (41 SE 699). Pendency of a prior suit, to be a bar, must be on the same cause of action and involve the same parties. Perimeter Billjohn, Inc. v. Perimeter Mall, 141 Ga. App. 343 (233 SE2d 470). However, for the same reason, the second lawsuit in Clayton County by Allied Steel (the voucher here) against Joann Hardee (the vouchee) is not abated by the vouchment suit; and if a judgment is obtained first in that Clayton County lawsuit between Allied Steel and Joann Hardee, it cannot be affected by this vouchment suit. That is, if there has been no “judgment” in the vouchment suit, there is nothing to conclude another suit between Allied Steel and Joann Hardee as parties. OCGA § 9-10-13 cannot be stretched that far beyond its own terms.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    73876.
    HUBBARD v. HUBBARD.
    (356 SE2d 541)
    Decided April 9, 1987.

      Michael H. Saul, for appellant.
   Birdsong, Chief Judge.

This is a discretionary appeal in a child custody case. The appellant is the mother of minor Daniel Hubbard, age 10, who resides now and since the past year with his father in Maryland. The appellant mother and the appellee father resided in Georgia during their marriage and were divorced in Cobb County in 1983. After the divorce, all parties and children lived in Georgia, but approximately a year ago, the appellee took the boy (and another child, of whom the mother now has custody in Georgia) to Arkansas to live with appellee’s parents while he established employment and a home in Maryland. The child Daniel now lives with his father in Maryland. This was a petition for contempt proceedings and change of custody filed by the appellant mother in Cobb County, Georgia. The trial court dismissed the complaint for change of custody, holding simply: “This court. . . has determined that Daniel Adam Hubbard resides outside the State of Georgia and that the Respondent [father] resides outside the State of Georgia, therefore, this court finds that it does not have jurisdiction to change the custody of Daniel Adam Hubbard and all matters as to Daniel Adam Hubbard are hereby dismissed. . . .” (Emphasis supplied.) Held:

The trial court’s determination that it did not have jurisdiction to hear the custody petition was based solely upon the fact that the child and the Respondent reside outside the State of Georgia. This was an error of law. OCGA § 19-9-43 (a) (2) provides courts of this state have jurisdiction to decide child custody matters based on such “significant connections” with this state as will render it in the child’s best interests for a court of this state to assume jurisdiction. Paragraph (c) provides specifically: “Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” The statute moreover does not provide that to exercise such jurisdiction, the court must find there to be an “emergency.” The trial court’s dismissal of the proceedings purely on the misapprehension the child and the appellee reside outside the state, “therefore, this court . . . does not have jurisdiction,” is erroneous. The judgment of dismissal is reversed and the case remanded for further proceedings in accordance with the provisions of OCGA § 19-9-43 as to the question of jurisdiction and the merits.

Judgment reversed and case remanded.

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

Lynn H. Whatley, for appellee.


author: Pope, Judge.

text:
    73997.
    CUNNINGHAM v. THE STATE.
    (356 SE2d 542)
    Decided April 9, 1987.

      William Rhymer, for appellant.

      Timothy G. Madison, District Attorney, T. David Motes, Assis

      tant District Attorney, for appellee.
   Pope, Judge.

Defendant appeals his conviction of two counts of selling marijuana in violation of the Georgia Controlled Substances Act. In his sole enumeration of error, defendant contends that the trial court erred in allowing the State to question one of the defendant’s character witnesses concerning the names of individuals who had stated to the witness that the defendant had good character.

The rule as it pertains to the direct examination of character witnesses is well settled. “(D)irect examination to prove the character of the accused must be limited to questions concerning his general reputation in the community in which he lives. . . . (T)he rule in Georgia is that good character may be proved only by testimony of a witness as to the reputation of the person whose character is in issue . . . [S]ubject to minor exceptions, the opinion of a witness as to character based on personal observation is not an approved way of introducing evidence of character.” (Citations and punctuation omitted.) Taylor v. State, 176 Ga. App. 567, 570-71 (336 SE2d 832) (1985). See also Simpkins v. State, 149 Ga. App. 763 (1) (256 SE2d 63) (1979). As to the cross-examination of such witnesses it has been stated: “ ‘When the defendant, in the trial of a criminal case, puts his character in issue the State . . . may cross-examine the witnesses offered by him in order to test their knowledge of his character. . . .’ [Cit.]” Ailstock v. State, 159 Ga. App. 482, 485 (283 SE2d 698) (1981). Thus, although it is the rule in this state that “ ‘[o]n the direct examination of such witnesses as are offered to establish character, particular transactions or the opinions or statements of individuals can not be brought in[,] ... on cross-examination this privilege may be exercised, for the purpose of showing the extent and foundation of the witness’ knowledge. . . .’” Hudson v. State, 163 Ga. App. 845, 848 (295 SE2d 123) (1982); see OCGA § 24-9-84. See generally Gravitt v. State, 220 Ga. 781 (8) (141 SE2d 893) (1965); Taylor, supra; Simpkins, supra. Accordingly, we find no error.

Judgment affirmed.

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


text:
    74078.
    KENT v. THE STATE.
    (356 SE2d 543)
   Pope, Judge.

Defendant appeals his conviction and sentence for the offenses of child molestation and recidivism. Held:

1. Defendant, who is deaf and mute, argues that the trial court erred in allowing the State to ask potential jurors the following question: “I’m going to ask you to promise me that if you are selected as a juror on this case, that you can lay aside any sympathy for this defendant because he is deaf and decide the case strictly on the evidence produced in court.”

“In Waters v. State, 248 Ga. 355, 363 (283 SE2d 238) (1981), [the Supreme Court of Georgia] noted that ‘(v)oir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. (Cit.) However, no question should require a response from a juror which might amount to a prejudgment of the case. (Cit.) Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the “control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.” [Cits.]’ ” Padgett v. State, 251 Ga. 503, 504 (307 SE2d 480) (1983); accord Amerson v. State, 177 Ga. App. 97 (5) (338 SE2d 528) (1985); Smith v. State, 171 Ga. App. 758 (3) (321 SE2d 213) (1984). Because our review of the record reveals no manifest abuse of discretion in the case sub judice, we will not on review interfere with the trial court’s decision to allow the State to question potential jurors in the manner described above. Accordingly, this enumeration is without merit.

2. Defendant also contends that the trial court erred in not granting his Motion to Sequester Jury and, because there was serious doubt as to the victim’s competency to testify, in allowing the jury to view the victim. Again, our review of the record does not support defendant’s contentions.

The record shows that during the course of the trial, and outside the presence of the jury, defense counsel reminded the court that there had been no ruling on defendant’s motion to sequester, in which defendant sought to have the trial court excuse the jury prior to conducting the competency examination of the four-year-old victim. The trial court responded by stating that it did not know who the State intended to call as its next witness and ordered that the jury be returned to the jury box. The State then called as its next witness the victim, whereupon the trial court immediately instructed the jury to return to the jury room. The transcript shows that the jury exited the courtroom, and that the trial court then called the victim to the stand. Thus, it is not readily apparent of record that the jury did, in fact, have an opportunity to see the victim. Moreover, the record also reveals that defendant made no objection to the manner in which the trial court conducted this portion of the proceedings. “Whenever improper conduct allegedly occurs in the presence of the jury, it is necessary in order to make the same a basis for review, that. . . counsel make proper objection to it at the time made or invoke some ruling or instruction from the court . . . and if the court refuses to grant that remedy to the movant, then it is incumbent upon him to ask the court to declare a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (Citations and punctuation omitted.) Castillo v. State, 178 Ga. App. 312 (3) (342 SE2d 782) (1986); see also Sprayberry v. State, 174 Ga. App. 574 (1) (330 SE2d 731) (1985). Consequently, this enumeration is without merit.

Decided April 9, 1987.

Steve Bennett, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

3. Lastly, defendant contends that he was denied a fair trial because the trial court informed the jury that it had determined the victim not competent to testify in view of her age. Pretermitting the question of whether the trial court’s remark constituted error, defendant has not shown how he was harmed by this remark and has therefore presented no basis for reversal. See, e.g., Dill v. State, 222 Ga. 793 (1) (152 SE2d 741) (1966); Cooper v. State, 178 Ga. App. 709 (7) (345 SE2d 606) (1986). Moreover, we are convinced that it is highly probable that such error, if any, did not contribute to defendant’s conviction. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Daniel v. State, 180 Ga. App. 179 (5) (348 SE2d 720) (1986).

Judgment affirmed.

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


text:
    74096.
    GONZALES v. THE STATE.
    (356 SE2d 545)
    Decided April 9, 1987.

      Terry A. Carr, for appellant.

      Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.
   Pope, Judge.

Defendant Virgilio Jesus Gonzales appeals from his conviction of violating the Georgia Controlled Substances Act by trafficking in cocaine. Defendant is a native of Puerto Rico who had resided in the United States for approximately two years prior to his arrest. Defendant’s sole enumeration of error concerns the trial court’s failure to appoint an interpreter for his use at trial. Held:

“The use of an interpreter, and the extent to which he may be used in the examination of a witness, must necessarily lie within the sound discretion of the trial judge. Hensley v. State, 228 Ga. 501 (186 SE2d 729 (1972).” LaCount v. State, 237 Ga. 181, 183 (227 SE2d 31), cert. den., 429 U. S. 1046 (1976). See also Reed v. State, 249 Ga. 52 (1) (287 SE2d 205) (1982). We have carefully examined the record in the case at bar (portions of which contain the testimony of the defendant) and conclude that defendant’s command of the English language, although not perfect, was such that the absence of an interpreter clearly did not result in a denial of defendant’s right to meaningfully participate in the proceedings against him; hence, we find that the trial court did not abuse its discretion in failing to appoint an interpreter for defendant’s use at trial.

Moreover, the record shows that defendant did not request an interpreter before or during the trial or otherwise indicate to the court that he was having difficulty in comprehending the proceedings. It is well settled in this state that “[o]ne cannot ignore what may be harmful error while hoping for a favorable result and then raise error when expectations prove false. [Cits.]” Bone v. State, 178 Ga. App. 802, 807 (345 SE2d 46) (1986).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    74215.
    KRAWAGNA et al. v. H & S LIQUOR, INC.
    (356 SE2d 684)
   Deen, Presiding Judge.

This case has been previously visited upon this court in Krawagna v. H & S Liquor, 176 Ga. App. 816 (338 SE2d 284) (1985). The essential facts are delineated in that opinion and will not be reiterated here.

Decided April 9, 1987.

R. Stacy Hylton, for appellants.

Tony Center, for appellee.

Upon the reappearance of this case before the trial court, the appellee, H & S Liquor, Inc., filed a motion in limine to exclude any evidence concerning whether or not prior to the sale of the liquor store the appellee had represented to the appellants that the appellee could transfer its state liquor license to the appellants or that the appellant could use the appellee’s license. The trial court granted the motion, and the present interlocutory appeal followed.

The appellants contend that the actual alleged misrepresentation, i.e., that the appellee had assured them that a state liquor license under the appellee’s name had been approved and was in the mail, was one of fact and thus able to support a claim of fraudulent inducement to enter the contract. The appellants acknowledge that (1) they could not legally have operated the liquor store under a license issued to another, and (2) that had the appellee produced the promised license but the state had subsequently revoked it, then the appellants would have no viable complaint against the appellee on that basis.

If the alleged representation is taken as an assurance by the appellee that the appellants could operate under the appeellee’s license, that representation quite obviously would be one of law and incapable of supporting the appellants’ fraud claim. See Davis v. Northside Realty Assoc., 165 Ga. App. 96 (299 SE2d 186) (1983). Even taking the alleged representation as one of fact, however, under the circumstances of this case it will not provide a basis for the appellants’ claim. What the appellants essentially are complaining about is that the appellee misrepresented a fact, the truth of which would have assisted the appellants in perpetrating a fraud upon the state. For reasons of public policy, the appellants may not be allowed to profit from the appellee’s reneging on the illegal scheme.

Judgment affirmed.

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


text:
    74233.
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. GEORGIA AUTOMOBILE DEALERS’ ASSOCIATION GROUP SELF-INSURERS’ FUND et al.
    (356 SE2d 686)
   Deen, Presiding Judge.

Appellee Georgia Automobile Dealers’ Association Group Workers’ Compensation Self-Insurers’ Fund (GADA) was the workers’ compensation insurance carrier for appellee Jay & Gene’s Chrysler - Plymouth-Dodge, Inc. (Jay & Gene’s), employer of appellees Gaylor and Hamm. See OCGA § 34-9-150. Appellant Universal Underwriters Insurance Company was the liability insurance carrier for incidents not subject to the Workers’ Compensation Act, OCGA Title 34, Ch. 9. While awaiting the arrival of potential customers, Gaylor and Hamm engaged in a “finger-wrestling” contest which resulted in a broken finger for Gaylor. Gaylor filed a workers’ compensation claim, and GADA assumed the responsibility for Jay & Gene’s defense. An administrative law judge (ALJ) found that the incident was not covered by workers’ compensation insurance because the incident did not fulfill the statutory requirement of arising out of and in the course of Gaylor’s employment. OCGA § 34-9-1 (4). The full Board of Workers’ Compensation affirmed the ALJ’s decision.

Gaylor filed a complaint against Hamm and Jay & Gene’s in the Muscogee County State Court, seeking damages for personal injury. Two months later appellant Universal filed a declaratory judgment action in the Muscogee County Superior Court, stating that it was uncertain as to its status and seeking a determination of whether or not it had a duty to defend Jay & Gene’s in the state court action. Defendants GADA and Jay & Gene’s filed separate motions for summary judgment, asserting that under the language of the Universal insurance policy there was no uncertainty as to Universal’s obligations, and declaratory relief was therefore inappropriate. Universal subsequently moved for summary judgment, alleging that Gaylor and Hamm were within the scope and course of employment at the time of the incident and therefore were not covered under the Universal policy. After oral argument the trial court entered an order declaring that Universal had a duty to defend Jay & Gene’s in the state court action, granting GADA’s motion for summary judgment, and dismissing both GADA and Jay & Gene’s from the declaratory judgment action.

Universal appealed from this order, asserting that the trial court erred in granting summary judgment to GADA because (1) Universal had not been a party to the workers’ compensation proceeding and therefore should not be bound by the determination therein; and because (2) the trial court allegedly considered only the Universal insurance policy and not the insuring agreement between GADA and Jay & Gene’s. Held:

1. The purpose of the Workers’ Compensation Act is to protect a worker against unexpected personal injuries arising out of, and in the course of, his employment. OCGA § 34-9-1 (4); Scott v. Travelers Ins. Co., 49 Ga. App. 157 (174 SE 629) (1934). Workers’ compensation does not cover accidents sustained by an employee outside the scope of his employment. Carroll v. Hartford Accident &c. Co., 73 Ga. App. 799 (38 SE2d 185) (1946). The claimant has the burden of demonstrating that his claim falls within the Act’s coverage. Ladson Motor Co. v. Croft, 212 Ga. 275 (92 SE2d 103) (1956). Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82 (290 SE2d 192) (1982). He must prove that the injury for which he seeks workers’ compensation benefits arose out of, and in the course of, his employment; an injury that occurred in the course of his employment but did not also arise out of the employment does not come within the Act. Davis v. Houston Gen. Ins. Co., 141 Ga. App. 385 (233 SE2d 479) (1977).

Although the Act, being remedial in nature, is to be construed liberally in the claimant’s favor, McElreath v. McElreath, 155 Ga. App. 826 (273 SE2d 205) (1980), the requirement that the injury “arise out of” the employment implies a causal connection between the working conditions and the injury. American Hardware Mut. Ins. Co. v. Burt, 103 Ga. App. 811 (120 SE2d 797) (1961). Ordinarily, whether or not the occurrence arose out of and in the course of employment is a question of fact, and the Board’s award, if supported by any evidence, is conclusive. Utz v. Powell, 160 Ga. App. 888 (288 SE2d 601) (1982); Employers Mut. Liab. Ins. Co. v. Carian, 104 Ga. App. 170 (121 SE2d 316) (1961). Georgia courts have consistently held that injury to a covered employee resulting from “horseplay” in which the claimant was the instigator or a participant did not “arise out of” the employment, within the legislative purpose of the Act. Street v. Douglas County Rd. Dept., 160 Ga. App. 559 (287 SE2d 586) (1981); Givens v. Travelers Ins. Co., 71 Ga. App. 50 (30 SE2d 115) (1944); Maddox v. Travelers Ins. Co., 39 Ga. App. 690 (148 SE 307) (1929).

In the instance involving appellees Gaylor and Hamm, the record makes it clear that there was ample evidence to cause the Board to make a determination of no coverage. Not having been appealed by either party, that decision stands. Thus finding himself excluded from workers’ compensation coverage, appellee Gaylor, if he wished to pursue his claim and possibly recover for his injury, had no choice but to resort to his common-law tort remedy. He therefore filed an action for personal injuries in the appropriate legal tribunal, and the named defendants, in order to avoid a default judgment, had no choice but to enter defensive pleadings. Jay & Gene’s called upon Universal to conduct its defense, and the issue thus arose as to whether Universal had a duty to defend its insured, Jay & Gene’s, under the contract of insurance between them. It was at this point that Universal, stating that it was in uncertainty as to its “rights, status, and other legal relations,” OCGA § 9-4-1, filed the action below, seeking a declaratory judgment.

Scrutiny of the record persuades us that, as appellees contend, no declaratory judgment is required to inform Universal of its “status and other legal relations” with regard to a duty to defend vel non in the state court action. OCGA §§ 9-4-1; 9-4-2; Fourth St. Baptist Church v. Bd. of Registrars, 253 Ga. 368 (320 SE2d 543) (1984). By their respective terms, the GADA insuring agreement extended coverage only for injuries within the purview of the Workers’ Compensation Act, while the Universal policy excluded occurrences within the parameters of that Act. Despite appellant’s representation to the contrary, the language of Universal’s policy expressly affords coverage for situations in which an employee of Jay & Gene’s brings a personal injury action against a fellow employee. By defending in the workers’ compensation proceedings, GADA discharged its obligation under its agreement with Jay & Gene’s; and by the terms of the insurance policy issued by Universal to Jay & Gene’s, the responsibility for defense of the tort action devolves upon appellant Universal.

Decided April 9, 1987.

Charles A. Wiley, Jr., Thomas E. Brennan, for appellant.

Thomas C. Holcomb, for appellees.

2. As to Universal’s contention that the trial court did not “consider” the GADA insuring agreement, we hold that it would have been both unnecessary and improper for it to do so. Universal was not in privity with GADA and had no fiduciary, contractual, or other relationship with GADA. The two insuring documents were totally separate and unrelated contracts. Having argued that it is not bound by the determination of the Board of Workers’ Compensation because it was not a party to the prior proceedings before that body, Universal, in coming to this court for relief, finds itself, if not actually hoist by its own petard, at least in the ironic position of seeking to benefit from the very proceeding whose result it has vehemently disavowed.

We find no merit in either of appellant’s enumerations of error.

Judgment affirmed.

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


text:
    72125.
    ALLISON v. THE STATE.
    (357 SE2d 165)
   Pope, Judge.

Our judgment in this case at 179 Ga. App. 303 (2) (346 SE2d 380) (1986) has been reversed by the Supreme Court on certiorari. Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is reversed.

Decided April 10, 1987.

William T. Hankins III, Robert G. Rubin, for appellant.

Robert E. Wilson, District Attorney, J. Tom Morgan, Susan Brooks, Assistant District Attorneys, for appellee.

Judgment reversed.

McMurray, P. J., and Carley, J., concur.


author: Sognier, Judge.

text:
    73653.
    ROGERS v. THE STATE.
    (356 SE2d 546)
   Sognier, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by possessing cocaine.

1. Appellant was acquitted of a charge of trafficking in cocaine by delivering and bringing into Georgia more than 200 grams of cocaine on March 21, 1985. She was convicted of a charge of possession of cocaine on March 22, 1985. Appellant contends the trial court erred by sentencing her on the possession charge because the State’s evidence as to trafficking in cocaine and possession of cocaine was the same. Thus, appellant argues, if she was not guilty of trafficking in cocaine she was not guilty of possessing the same cocaine and it was error to sentence her on the possession charge. This enumeration of error is not supported by the transcript.

The more than 200 grams of cocaine in question were brought into the state from Florida on March 21, 1985 by Blanca Barreal and Jorge Aranguren-Suarez for delivery to Arthur Ellis, a drug dealer in Macon, Georgia. When Barreal and Suarez arrived at the bus station in Macon they were met by Ellis, and as they left the bus station they were arrested and the cocaine was seized. On the following day police searched Ellis’ home in Macon and appellant was present. Two small packets of cocaine were found in her purse. Obviously, this was not the same cocaine as the cocaine that had been seized the previous day, and the two incidents occurred on different dates at different locations. Hence, the offenses were separate as a matter of law and as a matter of fact. See Walker v. State, 168 Ga. App. 130 (1) (308 SE2d 404) (1983); Clarington v. State, 178 Ga. App. 663, 667 (6) (344 SE2d 485) (1986). Accordingly, appellant’s contention that the jury’s verdict was inconsistent is not well taken. Even had the verdict been inconsistent, the rule against inconsistent verdicts has been abolished in Georgia. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

Appellant’s contention that the trial court charged the jury that the possession of cocaine in both counts was identical is not supported by the transcript. The trial court charged the jury that possession of cocaine was a lesser offense of trafficking in cocaine and defined the offense of possession of cocaine. Immediately thereafter the court charged the jury on possession of cocaine, and informed the jury that since it had already defined the offense of possession of cocaine (in connection with the trafficking charge), it would not repeat that definition. This was not a charge that the cocaine referred to in both counts was the same, and this court cannot consider factual representations in a brief which do not appear in the record. McCutchen v. State, 177 Ga. App. 719, 723 (3) (341 SE2d 260) (1986).

2. Appellant contends the trial court erred by admitting her statement to the police into evidence because she had not been advised of the nature of the offense she was going to be questioned about. This contention is based on the fact that the waiver of rights form referred to possession of cocaine on March 22, 1983 rather than March 22, 1985, the date appellant was arrested for possession of cocaine that was the basis of the charge in this case.

At a Jackson-Denno hearing (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908)), the officer who arrested appellant testified that after her arrest appellant was taken to the Bibb County courthouse where she was advised of her rights. Appellant stated that she understood her rights, signed a waiver of rights form, and then answered questions freely and voluntarily about her association with Suarez and the cocaine that was found in her purse. Other than the written date of March 22, 1983, no mention was ever made of any offense on that date. Although appellant contends she was “befuddled” and thought she was going to be questioned about an incident in 1983, appellant made no objection to the admission of her statement on the ground stated in this enumeration of error, and it is well settled that this court will not consider questions raised for the first time on review. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985).

3. Appellant contends the trial court erred by denying her motion to suppress the results of electronic surveillance by means of a wiretap on the telephone of a co-defendant, Ellis, resulting in interception of telephone calls between Ellis and appellant. This enumeration of error is without merit.

Since the wiretap was on Ellis’ telephone, appellant had no standing to object to an alleged violation of Ellis’ Fourth Amendment rights. Romano v. State, 162 Ga. App. 816, 818 (1(a)) (292 SE2d 533) (1982). Since none of appellant’s Fourth Amendment rights were violated by the wiretap of Ellis’ telephone, appellant was not an aggrieved person and was not entitled to the protection of the exclusionary rule; thus, she had no standing to object to the wiretap of Ellis’ telephone. Id.; Gonzalez v. State, 175 Ga. App. 217, 222 (3(k)) (333 SE2d 132) (1985).

Decided April 10, 1987.

W. Washington Larsen, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews III, Assistant District Attorney, for appellee.

4. Appellant’s last four enumerations of error relate to the trial court’s denial of motions for mistrial made after allegedly improper remarks by the prosecuting attorney in closing argument, and the court’s failure to rebuke the prosecuting attorney and instruct the jury to disregard the improper argument. Both of the remarks which appellant contends were grounds for a mistrial related to the charge of trafficking in cocaine, of which appellant was acquitted. Accordingly, any alleged errors in connection with that count are moot.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    73700.
    RICHMOND COUNTY HOSPITAL AUTHORITY OPERATING UNIVERSITY HOSPITAL v. DICKERSON et al.
    (356 SE2d 548)
   Beasley, Judge.

We granted an application for review from the trial court’s order denying Richmond Hospital’s motion for summary judgment. The original complaint was brought by the daughters and husband of Julia Loree Dickerson, deceased, seeking recovery of damages for her wrongful death. The complaint alleged that decedent suffered an aneurism and was taken to the emergency room at Richmond Hospital; that she remained there until her death about eight hours after her arrival; that during the time she did not receive competent medical attention and treatment; that Richmond Hospital’s employees were grossly negligent and failed to exercise standard professional care while decedent was a patient in the hospital; that Mrs. Dickerson’s death was a result of incompetent treatment and care.

1. Because this issue could be dispositive of the entire case we first consider enumeration of error two.

(a) In its application for interlocutory review and on appeal to this Court, Richmond Hospital has stressed that even if its employees were negligent, such negligence was not the cause of the death because the deceased and her family declined treatment by the hospital staff. The emergency room physician who attended Mrs. Dickerson related by affidavit that after Mrs. Dickerson’s condition was diagnosed by him she was advised that surgery was necessary. Despite this, she and her family refused treatment and sought the services of another physician! This continued over the course of the afternoon and by the time treatment was begun it was too late.

Were this undisputed there would be an issue of law as to proximate cause. However, in actuality there is a factual question since the family of Mrs. Dickerson, by deposition, testified to a quite different situation. According to their account they were not informed as to the necessity of surgery and did not request a specific doctor but were told one would arrive imminently; that no one arrived and no one closely monitored Mrs. Dickerson’s condition while they waited and waited. The contention is that monitoring vital signs and informing the physician was the responsibility of the hospital’s nurses. Because there was a dispute as to what transpired, the trial court properly left that matter for the jury’s determination.

(b) Based on expert medical testimony that Mrs. Dickerson’s chances of survival, even with surgery, were less than fifty percent, Richmond Hospital cites foreign authority to the effect that in such circumstances a causal connection between any negligence and Mrs. Dickerson’s death was not established. The cases do not sustain this extreme position.

The sole Georgia case relied upon, Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269) (1978), stands for the general proposition that negligence alone is not sufficient to impose liability, for “the complaining patient must prove that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.” In addition to this well recognized principle this Court added language found in Watson v. United States, 346 F2d 52 (5th Cir. 1965), that there could be no recovery for medical negligence involving the loss of the patient’s leg where there was “no showing to any reasonable degree of medical certainty that the loss . . . could have been avoided.”

Proximate cause is not eliminated by merely establishing by expert opinion that the patient had less than a fifty percent chance of survival had the negligence not occurred. If imminent death was inevitable regardless of treatment, lack of treatment would of course not be the proximate cause of death. But the attending physician here, the hospital’s witness, steadfastly maintained that surgery was indicated right from the outset, in order to sustain her life. It is obvious from his affidavit that in his opinion death was not inevitable, if surgery were performed without delay. The real question here is, why was it not undertaken? Was it because the patient and/or family refused to consent to treatment other than by or at the direction of the workers’ compensation physician, or because they were not advised of the necessity for immediate surgery and the unavailability of the workers’ compensation physician, or for some other reason? Did the hospital’s nurses fail to adequately monitor and report Mrs. Dickerson’s condition so that no emergency action was taken sooner than nearly 6:00 p.m., when death became irreversible? The record does not establish that the actions or inactions of the hospital staff were not a proximate or contributing cause of Mrs. Dickerson’s death. Thus the movant hospital did not on this record, carry its burden of proof on summary judgment. Ray v. Ga. Farm &c. Ins. Co., 176 Ga. App. 776, 780 (337 SE2d 779) (1985); Murphy v. Clayton County Hosp., 175 Ga. App. 152 (2) (333 SE2d 15) (1985).

2. Richmond Hospital asserts that plaintiffs failed to submit proof by a qualified expert that it failed to exercise the appropriate standard of care. Plaintiffs did submit an affidavit by a physician who testified that the hospital’s employees and nurses were negligent in failing to properly monitor Mrs. Dickerson during the time she was in the hospital. He stated they failed to meet the requisites of ordinary care. Based on the fact he failed to refer to the standards for the “locality” in question, Richmond Hospital contends his affidavit is without probative value.

Richmond Hospital misreads the applicable cases. The “locality” rule applies where the adequacy of the services or facilities of a small hospital is questioned. See Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118 (311 SE2d 836) (1984), where the professional judgment of a physical therapist was questioned, the court held: “the standard of care which should be applied to a hospital’s physical therapists is that ordinarily employed by the profession generally.” Id. p. 119. The rationale for the distinction was simply that while a hospital’s facilities and services might be limited by its location and resources, the judgment of its therapist was not so limited. Logically this concept applies also to a nurse and so we held in Macon-Bibb County Hosp. Auth. v. Ross, 176 Ga. App. 221 (335 SE2d 633) (1985), emphasizing that the “locality” rule is misplaced where the question concerns the professional judgment of the hospital staff.

The standard of care for a hospital staff generally was set forth in the affidavit. This was a sufficient basis to create an issue for the jury.

3. Richmond Hospital argues that the emergency room was in the charge of physicians who were independent contractors and thus, it was not responsible for any negligence on their part.

More precisely the question is not as to the negligence of the physicians but as to the hospital staff, particularly the nurses. The agreement, which set out that the physicians were acting in the role of independent contractors in providing emergency care, stated that the hospital would provide, at its sole cost and expense, “services of nurses and other non-physician assistants, as may be needed for the effective operation of the Emergency Department.” Their status insofar as who would control the nurses or non-physician assistants is not mentioned in the agreement but the implication is that the hospital did not relinquish control. Compare Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290, 291 (1) (291 SE2d 1) (1982) which explains that in the operating room where the surgeon exercises immediate control over the hospital’s employees he becomes their master and their negligence is imputable to him.

Decided April 10, 1987.

Patricia W. Booker, Ted H. Clarkson, Raymond G. Chadwick, Jr., for appellant.

Victor C. Hawk, for appellees.

In other situations, a hospital may be liable for injuries negligently inflicted upon its patients by nurses and other employees. Newton County Hosp. v. Nickolson, 132 Ga. App. 164, 166 (1) (207 SE2d 659) (1974). See Porter v. Patterson, 107 Ga. App. 64, 70 (129 SE2d 70) (1962): “[A] hospital has a responsibility for the exercise of due care by a nurse (as well as by other hospital employees) while she is performing acts of a character which, though constituting a part of the patient’s treatment as prescribed by the attending physician, do not require either the application or the understanding of the specialized technique possessed by a skilled physician or surgeon.”

The failure to properly monitor Mrs. Dickerson could be found to fit within the bounds of the above cited cases. Moreover, if we accept the scenario posed by witnesses for plaintiffs, any emergency room treatment had been either suspended or terminated and the patient was being kept in a holding pattern by the hospital pending the arrival of another physician. Under those circumstances a jury issue was presented regarding whether Mrs. Dickerson’s care was the hospital’s responsibility. Thus, the hospital failed to establish as a matter of law that it owed no duty to Mrs. Dickerson and as we have already noted, it likewise failed to show that it was free from negligence.

The trial court properly denied Richmond Hospital’s motion for summary judgment.

Judgment affirmed.

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


text:
    73804.
    BAILEY et al. v. KEMPER GROUP.
    (356 SE2d 695)
   Birdsong, Chief Judge.

Statute of Limitations — Dismissal on Pleadings. On January 27, 1982, Howard Bailey worked for Great Dane Trailers, Inc., operating a punch press machine manufactured by one of the defendants, Cincinnati, Inc. On that date he suffered a crushing amputation of his right thumb. On January 26, 1984, on the last day before the bar of a suit by the statute of limitations, Bailey brought suit against his employer, his employer’s insurer as a John Doe (unknown) entity, and the manufacturer of the punch press, but under an improper company name. On July 13, 1984, approximately five months beyond the two-year period during which a personal injury action may be brought, Bailey moved the trial court for an order adding Kemper Group as the actual insurer in place of the John Doe insurer and Cincinnati, Inc. as the manufacturer. By order of August 2, 1984, these two new defendants were added to the original filing on January 26, 1984. On November 13, 1984, Bailey amended his original complaint to correct the names of the actual defendants from John Doe Insurance Company to Kemper Group and Cincinnati-Millicron Marketing Co., Inc. to Cincinnati, Inc. On that same date, Bailey filed a recasted complaint, deleting his employer Great Dane Trailers, Inc. as a defendant (presumptively because of the employer’s workers’ compensation status) and adding Kemper Group and Cincinnati, Inc. as the only two defendants. On January 2, 1985, Kemper Group filed its answer to the recast complaint of November 13, 1984, and as its second defense alleged the recast complaint was barred by the statute of limitations.

As part of his complaint, Bailey alleged that Kemper as an insurer issued a policy covering the employer; that Kemper undertook negligently conducted safety inspections including the area of the plant and the machine wherein Bailey was injured. He alleged that these negligent inspections resulted in his injury and further that Kemper failed to warn him of the danger. Kemper, in answer to interrogatories, admitted it had issued a policy of insurance to Great Dane which policy was in effect at the time of the accident. It specifically denied that it insured the machine causing Bailey’s injury, and did not insure Bailey or any other of Great Dane’s employees. It provided general liability coverage (apparently for exterior premises and vehicles) but specifically excluded insurance for bodily injury to an employee. While the insurance did provide workers’ compensation coverage, such coverage did not apply in Georgia, Great Dane being a self-insurer within this state.

Following the filing of the pleadings and limited discovery, Kemper Group on May 30, 1986, moved for partial judgment on the pleadings as to the personal injury suit by Bailey on grounds of the statute of limitations. The consortium action filed by Mrs. Bailey as a part of the same suit was not made a part of Kemper Group’s motion. The trial court apparently examined the evidence for in its order the court reflected there was no evidence to support a finding that Kemper Group received notice of the action or that but for an error in identification, the action would have been brought against the Kemper Group. Thus, the trial court granted Kemper Group’s motion to dismiss the action as filed by Howard Bailey. Bailey brings this appeal asserting error in the dismissal of his action against Kemper Group. Held:

It is clear from the face of the pleadings that the injury took place on January 27, 1982, and that Kemper Group was notified it was a party to the action on November 13, 1984, well beyond the expiration of the two-year statute of limitations applicable to a personal injury action. In its answer, Kemper specifically raises as a defense that the action was barred by the statute of limitations.

The issue raised by the two parties before us in this appeal relates to the question: upon whom does the burden of proof lie? Bailey contends that the ruling of the court was in the nature of a partial summary judgment and thus the burden as movant lay upon the Kemper Group to show that there was no issue of fact as to the applicability of the statute of limitations. Bailey argues that under the provisions of OCGA § 9-11-12, the recast pleadings related back to the original pleadings which concededly were filed within the statute of limitations. Bailey continues his argument that there remains an issue of fact for a jury to decide as to whether Kemper Group had received notice of the litigation or that, except for an error, Kemper Group would have been the party against whom the litigation would have been brought. Kemper Group, to the contrary, argued successfully before the trial court that because the pleadings showed affirmatively that the injury was incurred more than two years before it was made a party to the litigation, Bailey had the burden, in his complaint, to show the complaint was not subject to the statute of limitations.

When an unidentified party is sued as “John Doe” and service as to the unknown party is successful within the statute of limitations, an amendment to the complaint relates back to the filing of the original complaint. OCGA § 9-11-15 (c). Where service has not been effected successfully on the John Doe party within the statutory time of limitations, the test of OCGA § 9-11-15 (c) applies. Sims v. American Cas. Co., 131 Ga. App. 461, 481 (6) (206 SE2d 121).

That test provides that service of an amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the added or changed defendant has in reality (even if informally) received notice of the institution of the action so that he will not be prejudiced in maintaining his defense on the merits, and/or knew or should have known that but for a mistake concerning the identity of the real party to the action, that the action would have been brought against him.

Thus in order to avoid the bar of the statute of limitations, it is necessary that the substitution of a party defendant after the normal time to file complaint has expired, have notice of the pending action prior to the substitution or that there be evidence that the failure to notify the real party was the result of an obvious mistake and it is apparent that the substituted party was the apparent defendant and the action always was against him.

Decided April 10, 1987.

Lester B. Johnson III, for appellants.

Charles W. Brannon, Jr., for appellee.

It is clear from this record that the appellee Kemper Group was not on notice of a suit prior to the expiration of the two-year period of limitation. There was no insurable interest shown other than by conclusory allegations in Bailey’s recasted complaint, all denied, that would have caused the employer to file a notice of injury or potential claim under its policy which provided only general liability with the Kemper Group. There being an express denial that the press, or employee injuries were insurable interests, there was no evidence that Kemper Group would have been made a party in due course. Facially therefore, the statute of limitation defense was meritorious inasmuch as the cause of action arose more than two years prior to the substitution of Kemper Group. In order for Bailey to invoke the tolling of the period of limitations, Bailey’s complaint necessarily had to contain an allegation that Kemper was on notice or should have been on notice except for a mistake as to the real party because Kemper Group knew the action would have been brought against it. Mullins v. Belcher, 159 Ga. App. 520 (2) (284 SE2d 35). Bailey has offered no amendment to his pleadings to overcome the defense of statute of limitations. Neither has Bailey offered affidavits or other evidence other than his conclusory pleadings that some sort of notice would have been due the Kemper Group or that Kemper Group was not served because of a mistake. The result was that the affirmative defense of statute of limitations appeared on the face of the complaint and the trial court on that showing alone granted the motion to dismiss. Were we to hold that a motion to dismiss was improperly granted solely because Bailey might have a defense to the running of the .statute of limitation, the purpose and intent of the CPA would be frustrated. When a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible, a motion to dismiss the barred claims properly is granted. Mullins v. Belcher, supra at p. 521 (2); Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 768 (227 SE2d 397).

Judgment affirmed.

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


text:
    73899—73903.
    JAM BONDING COMPANY, INC. v. STATE OF GEORGIA (five cases).
    (356 SE2d 551)
   Beasley, Judge.

These five companion appeals involve the forfeiture of misdemeanor recognizance bonds. In each case the parties stipulated the following facts.

“On August 29, 1986, the above-styled matter came on for hearing in the form of a Rule Nisi for Forfeiture of Recognizance at which time the defendant/surety was ordered to appear and show cause why final judgment of forfeiture of bail should not be entered against it in the amount of the bond executed by the defendant/surety in said matter.

“The state presented as its evidence the original bond contract executed between the state and principal and surety, also presented was the original Rule Nisi issued in the matter.

“The defendant/surety raised as its objection to judgment, the failure of the clerk of court, at least three days prior to the date set for arraignment, to mail notice of arraignment to the defendant/ surety as required by OCGA § 17-7-91.

“It was stipulated by the parties and accepted by the court that the clerk of state court in fact does not send notice of arraignment to the surety on bonds as required by OCGA § 17-7-91 and that in the instant case, no notice was sent by the clerk to the defendant/surety. It was further stipulated that it is the practice of agents for Jam Bonding Company, Inc. to obtain a copy of the court’s arraignment calendar at least three days in advance of arraignment.

“At the conclusion of the hearing, the court rendered judgment in favor of the state against the defendant/surety in the face amount of the bond.”

This was amended to add: “[NJotice of arraignment is, in fact, mailed to the defendant/principal at least three days prior to arraignment, although not to the surety.”

The surety asserts that because bonds are strictly construed in favor of the surety, the failure of the clerk to send notice to it as required by OCGA § 17-7-91 (a), as provided by amendment in 1982 (Ga. L. 1982, p. 1224, § 3), relieves it of any responsibility under the bond.

This court has found the failure to give notice to the principal is ground for reversal of his conviction. Hicks v. State, 145 Ga. App. 669 (244 SE2d 597) (1978); Hicks v. State, 147 Ga. App. 814 (1) (250 SE2d 558) (1978); Presnell v. State, 159 Ga. App. 598 (284 SE2d 106) (1981). However, it should be recognized that OCGA § 17-7-91 (c) permits an accused to waive notice by appearance.

Here the surety does not contend that it did not have actual notice, indeed it concedes that it did. As a matter of fact, it got the same notice it would have gotten by mail, except at least a day or two earlier, and more directly than by mail. Thus it had even more time to assure defendant/principal’s presence, albeit this was occasioned by its own diligence. Since it had actual notice by way of the court’s calendar, the failure to mail notice to it by the court clerk cannot be used as a basis for avoidance of the bond obligation. If the omission had resulted in no notice having been given the surety, a different result might be reached. However, under the circumstances there was no reversible error, as there was no harm. Wedgewood Carpet Mills v. Color-Set, 149 Ga. App. 417, 419 (1) (254 SE2d 421) (1979); Keno v. Alside, 148 Ga. App. 549, 552 (3) (251 SE2d 793) (1978).

Decided April 10, 1987.

Steven E. Lister, for appellant.

John C. Carbo III, Solicitor, for appellee.

Judgments affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.


text:
    73917.
    BRYANT v. THE STATE.
    (356 SE2d 698)
   Birdsong, Chief Judge.

Bennie Lewis Bryant was convicted of driving while his license was suspended and driving under the influence of alcohol. He was sentenced to five years for the offense of driving after having been declared an habitual violator, with three to serve, and twelve months for the driving under the influence offense to be served concurrently. Bryant brings this appeal enumerating three alleged trial errors. Held:

1. In his first enumeration of error, Bryant urges error in the admission of his entire driving record as that record was attached to the notification to Bryant that his driving license and privileges had been suspended. When the record was offered by the State, trial defense counsel for Bryant objected that the record showed it had been extracted from the computer on September 25, 1984, and the two charged offenses occurred on September 8, 1984. Thus the computer extract would not support the indictment. The State responded that the sole purpose for the document was to establish that Bryant had been notified on March 7, 1983, that his license to drive had been suspended, that he had been notified personally and had surrendered his license on April 8, 1983. Counsel for Bryant agreed that if the sole purpose of the document was to show the revocation of the license and Bryant’s knowledge thereof, the objection was unnecessarily made. Different counsel has been appointed to represent Bryant on appeal. That counsel has changed the nature of the asserted objection to one that it was error to allow a record of all the previous traffic convictions.

It is true that the State is not required to establish all of appellant’s past derelictions to establish his license has been suspended and surrendered (Flakes v. State, 243 Ga. 699 (256 SE2d 379)). Thus the entire driving record is immaterial. However, the mere fact that such evidence may be immaterial does not mean necessarily that the admission of it is prejudicial. The evidence established without question that Bryant’s license had been surrendered over a year before and that when arrested he had no driver’s license and made no contention that he had one. It is also uncontested that he was noticeably intoxicated and was tested with an intoximeter at over a .2 reading. Though evidence was offered by a defense witness that he never moved the car in the sight of the police officer, the officer’s testimony was compelling that Bryant did indeed have control of the vehicle and operate it if even for a short distance. Even conceding the record contained immaterial matter, when we apply the “highly probable test,” i.e., that it is highly probable that the error did not contribute to the verdict, we are satisfied that the error indeed was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Hester v. State, 159 Ga. App. 642, 644 (284 SE2d 659).

Moreover as already noted herein, the objection offered at the time of offer of the exhibit was entirely different than the one now offered by appellant’s counsel. It has long been the law of this state that a reason advanced that evidence should not have been admitted will not be considered on appeal unless the reason was urged below. Leonard v. State, 146 Ga. App. 439, 440 (1) (246 SE2d 450). A new ground may not be raised for the first time on appeal. Ridley v. State, 141 Ga. App. 854, 855 (234 SE2d 688).

2. In his second enumeration of error, Bryant claims that his right to a thorough and sifting cross-examination was curtailed when the trial court would not allow an inquiry into possible prejudice or bias on the part of the officer as to whether the arresting officer liked or wanted to be assigned to the Clayton County DUI task force. The evidence had already established that while this officer had at one time been assigned to the task force, at the time of the arrest in question, the officer was not a part of that task force. Thus it is manifest that because the DUI task force was not involved in the arrest of the appellant, the arresting officer’s desires in relation to assignment to that duty facially were immaterial. The right of cross-examination is not abridged where cross-examination of a witness to irrelevant or immaterial matters is not permitted. The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused. Clifton v. State, 187 Ga. 502, 508 (2 SE2d 102). We find no abuse in the circumstances of this case.

Decided April 10, 1987.

Karlton V. Banke, for appellant.

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

3. In his last enumeration of error, Bryant complains the trial court improperly denied his motion for a directed verdict of acquittal. The basis of the motion was that in between the time Bryant had surrendered his license in 1983 and the time of his arrest in 1984, there had been sufficient time for him to obtain another. The State did not show the continuing condition of ineligibility for a license; thus Bryant contends an essential element of driving while license is revoked was absent from the State’s proof.

We must reject this argument. Testimony that Bryant drove an automobile coupled with evidence that his driver’s license had been revoked as an habitual offender is all that is required to allow a jury to find guilt of the offense herein charged beyond a reasonable doubt. Hester v. State, supra. While we agree that evidence that Bryant had subsequently obtained a valid driver’s license during the interval between the revocation or suspension and the time of the offense charged of driving without a valid license would have established his innocence, we conceive this to be an affirmative defense available to the defendant in such a case and not an element of proof of the statutory offense of violation of the habitual violator statute. The defense is analogous to driving without having one’s license in one’s personal possession at the time of a stop where a later production of a license by the defendant affords a defense. See McCook v. State, 145 Ga. App. 3 (243 SE2d 289). We find no merit in this enumeration.

Judgment affirmed.

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


text:
    74296.
    HOLLAND v. THE STATE.
    (356 SE2d 700)
   Deen, Presiding Judge.

The appellant, Charles Holland, was convicted of violating the Georgia Controlled Substances Act, attempting to elude, speeding, reckless driving, and driving under the influence. On appeal, he contends that the trial court erred in not sequestering the state’s main prosecuting witness; that the trial court erred in not excluding the testimony of the state’s crime lab witness; and that the trial court erred in failing to direct a verdict of acquittal as to the charges of reckless driving and possession of marijuana. Held:

1. Although the rule of sequestration was invoked by counsel for the appellant, the prosecutor called upon the trial court to exercise its discretion and allow the sheriff, who was also a witness, to remain at the prosecutor’s table to assist with the presentation of the case. The trial court granted the request, which we do not find to be an abuse of discretion. Law v. State, 165 Ga. App. 687 (4) (302 SE2d 570) (1983).

2. OCGA § 24-9-69 provides that “[a] witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed. . An employee of the state crime lab testified that he tested the substance found in the appellant’s vehicle and found it to be positive for marijuana. On cross-examination, in response to defense counsel’s question of whether the witness had any “personal memory or recollection of this specific case” other than through his notes, the witness acknowledged that he had to refresh his memory by reference to the official report before testifying. The witness’s testimony as a whole, however, particularly with regard to his receipt and storage of the evidence until the day of the trial, sufficiently demonstrated that he was testifying not merely from the report without present recollection. The testimony thus was properly admitted. Kelley v. State, 169 Ga. App. 917 (7) (315 SE2d 916) (1984). It follows that the appellant’s motion for directed verdict of acquittal on the marijuana possession charge, which depended upon the inadmissibility of this testimony, was properly denied.

3. The appellant was charged with driving recklessly on Georgia Highway No. 58 (U. S. Highway No. 11). He moved for directed verdict of acquittal on this charge, contending that the only evidence regarding it was the testimony that the appellant “laid drag” or “squalled” the tires on his car up to the point where he turned onto the highway and could no longer be seen. However, shortly before that, appellant’s vehicle was also observed swerving and skidding on the highway in question, almost striking some boulders on the side of the road, as it first came into town. This evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of reckless driving, and the trial court properly denied the appellant’s motion. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided April 10, 1987.

Herbert E. Franklin, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Jr., Assistant District Attorney, for appellee.


author: Banke, Chief Judge.

text:
    71827.
    In re L. L. B.
    (357 SE2d 166)
    Decided April 13, 1987.

      Janice Y. Martin, Mary R. Carden, Phyllis J. Holmen, Imogene L. Walker, for appellant.

      Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, William C. Joy, Senior Assistant Attorney General, Richard J. Joseph, David C. Will, Assistant Attorney General, for appellee.
   Banke, Chief Judge.

In accordance with the Supreme Court’s decision in In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987), vacating this court’s judgment in In re L. L. B., 178 Ga. App. 235 (342 SE2d 715) (1986), the judgment of the trial court is vacated; and the case is remanded to the trial court with direction that such further action be taken as may be necessary to give effect to the Supreme Court’s decision.

Judgment vacated and case remanded with direction.

Birdsong, C. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    73624.
    EVANS v. CLAYTON COUNTY.
    (356 SE2d 553)
   Banke, Presiding Judge.

The appellant filed suit against Milton Brooks, who is not a party to this appeal, and against Clayton County, the appellee herein, seeking to recover for personal injuries suffered by her minor son as the result of Brooks’ alleged negligence in maintaining a vicious dog on his premises.

Brooks had “adopted” the dog from the Clayton County pound some 10 months earlier. The appellant sought to hold the county liable in the matter pursuant to 42 USC § 1983 based on allegations that it had maintained a “corrupt and negligent” policy of releasing vicious dogs to their owners or others rather than destroying them. The appellant asserted that, pursuant to OCGA § 33-24-51 (b), the county had waived its sovereign immunity to such suit to the extent of certain liability insurance coverage which it had purchased. The trial court granted the county’s motion for summary judgment, and the appellant appealed to the Supreme Court, which transferred the case to this court. Held:

Decided April 13, 1987.

William L. Skinner, for appellant.

Steven M. Fincher, for appellee.

Pretermitting the insurance issue, it is evident as a matter of law that the county is not subject to any liability for the child’s injuries pursuant to 42 USC § 1983. In the first place, it is not at all apparent that a county, as opposed to a municipality or other local governmental unit “which [is] not considered part of the state for Eleventh Amendment purposes,” may ever be held directly liable for damages pursuant to 42 USC § 1983. See Monell v. N. Y. Dept. of Social Svcs., 436 U. S. 658, 690, n. 54 (98 SC 2018, 56 LE2d 611, 635) (1978). Secondly, the record in the present case establishes unequivocally that the county’s decision to release the dog resulted not from the application of a corrupt and negligent policy of releasing vicious dogs upon the public, as was alleged in the complaint, but from a good-faith determination by the county “pound master” that the dog was not vicious and from assurances made to a county administrator by defendant Brooks, the person who “adopted” the dog, that he had “proper facilities” in which to keep it. It follows that the plaintiff has no basis for any recovery pursuant to 42 USC § 1983. “Where a government official’s act causing injury to life, liberty or property is merely negligent, ‘no procedure for compensation is constitutionally required.’ ” Daniels v. Williams, 474 U. S. _ (106 SC _, 88 LE2d 662, 669) (1986).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    73986.
    FULLER v. THE STATE.
    (356 SE2d 554)
   Birdsong, Chief Judge.

Samuel L. Fuller, the appellant, was indicted during the April 1985 Term of the Bibb Superior Court for the offenses of robbery by sudden snatching, and criminal solicitation to compound a felony. The record indicates that Fuller was represented by counsel, entered a plea of guilty to both counts during the August 1985 Term, and was sentenced on September 23, 1985 to eight years on Count 1, and two and one-half years on Count 2. No appeal was taken from that judgment and sentence.

On August 14, 1986, Fuller, pro se, filed a “Belated Plea in Abatement” in the Bibb Superior Court. In that document he presented a challenge to the grand jury, alleging, inter alia, failure to select the “most experienced, intelligent and up right [sic] citizens,” that the jury commissioners selected special individuals to serve and excluded blacks, and that the grand jury sitting in the February Term was the same grand jury sitting in the April Term.

The superior court directed the district attorney to respond to the charges, and “[a]fter considering arguments from both sides” the court dismissed appellant’s “Plea in Abatement” without convening an oral hearing. A timely notice of appeal was filed with this court. Held:

Appellant argues that the trial court erred in dismissing his Plea in Abatement without holding an oral argument. We do not agree. We cannot fathom the purpose of a purported “plea in abatement” following the trial of a criminal case which has been completed for almost one year. Appellant has cited us to Betts v. State, 66 Ga. 508, 514 in which the Supreme Court held that a plea in abatement, filed at arraignment, as to the competency of a grand juror was without merit. Of course, in that instance, since the plea was filed prior to trial, if it had been sustained, the trial would have abated pending a new indictment. But, in the instant case, the plea was filed almost one year after judgment. Further, since a plea in abatement only defers action, this court has held that “[a] judgment sustaining or dismissing a plea in abatement is not such a final judgment as can be made the subject of an appeal to this court within the meaning of Code Ann. § 6-701 [now OCGA § 5-6-34].” Peach v. State, 116 Ga. App. 703, 704 (158 SE2d 701); accord Goldstein v. State, 94 Ga. App. 219 (1) (94 SE2d 100); Harris v. State, 64 Ga. App. 281 (13 SE2d 42). However, we will apply the rule that misnomer of a pleading will not be controlling where the remedy sought is clear, and we will judge the pleading by its content. McDonald v. State, 222 Ga. 596, 597 (151 SE2d 121). Here, it is evident appellant sought a new trial because of alleged defects in the grand jury selection process. Objections to the composition of a grand jury must be raised at the earliest opportunity. Thomas v. State, 239 Ga. 734 (1) (238 SE2d 888). Hence, a challenge to the array of grand jurors is waived unless timely filed, and must be raised prior to the return of the indictment, or defendant must show he had no knowledge, either actual or constructive, of such illegal composition. Sullivan v. State, 246 Ga. 426 (271 SE2d 823); Sanders v. State, 235 Ga. 425 (219 SE2d 768), cert. den. 425 U. S. 976. Although appellant alleges he personally was without actual or constructive knowledge of the alleged defects, at his trial he was represented by counsel and there is no affidavit of counsel as to a similar lack of knowledge. The challenge was not timely and an exception is not supported by the evidence.

Decided April 13, 1987.

Samuel L. Fuller, pro se.

Willis B. Sparks III, District Attorney, for appellee.

The appellant entered pleas of guilty to both charges in his trial. “[T]he valid plea of guilty waived all defenses, known and unknown.” Snell v. Smith, 228 Ga. 249, 250 (184 SE2d 645). Hence, a plea of guilty “waives [any] claim of invalid jury selection and grand jury composition. . . .” Addison v. State, 239 Ga. 622, 624 (238 SE2d 411); accord Tollett v. Henderson, 411 U. S. 258 (93 SC 1602, 36 LE2d 235); Sims v. Caldwell, 231 Ga. 377, 378 (202 SE2d 70).

We must note that although appellant filed his plea in abatement he neither filed nor requested a rule nisi. And, since appellant cannot appeal from a judgment on a plea in abatement and we have treated the plea as a motion for new trial, because it was not filed within the statutory 30 days, it must be considered as an extraordinary motion for new trial. Dyal v. State, 121 Ga. App. 50 (1) (172 SE2d 326); Williams v. State, 251 Ga. 83, 84 (303 SE2d 111). Our Supreme Court has held that “an extraordinary motion for new trial which fails to show any merit may be denied without the necessity of a hearing.” Dick v. State, 248 Ga. 898, 899 (287 SE2d 11); accord Sinkfield v. State, 232 Ga. 892, 893 (209 SE2d 188); Fulford v. State, 222 Ga. 846, 847 (152 SE2d 854). Inasmuch as appellant did not request oral argument, nor file a rule nisi, and his valid plea of guilty waived any right to present a claim of error as to composition of the grand jury, his motion was without merit and the trial court did not err in failing to hold an oral hearing, and in denying his “plea in abatement.”

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    72348.
    MONROE et al. v. SIGLER et al.
    (357 SE2d 166)
   McMurray, Presiding Judge.

In Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), the Supreme Court reversed our unpublished decision dismissing as improvidently granted an interlocutory appeal in Monroe v. Sigler (Case No. 72348, decided September 9, 1986). Accordingly, our decision in Monroe v. Sigler (Case No. 72348), is vacated and the decision of the Supreme Court in Monroe v. Sigler, 256 Ga. 759, supra, is made the judgment of this court.

Decided April 14, 1987.

Robert N. Dokson, George R. Neuhauser, for appellants.

Benjamin S. Williams, Mark F. Dehler, for appellees.

Judgment reversed.

Carley and Pope, JJ., concur.


text:
    73631.
    HENSON v. THE STATE.
    (356 SE2d 556)
   McMurray, Presiding Judge.

Defendant was indicted for the offense of child molestation. At trial, the victim testified that in July 1985 defendant performed acts which constituted the crime of child molestation. The victim was under 14 years old. The State also introduced evidence that defendant displayed to the victim and the victim’s 12-year-old sister sexually explicit magazines. (These magazines were introduced into evidence by the State.) The victim’s sister testified that in July 1985 she witnessed defendant performing acts upon the victim which constituted the crime of child molestation. From this and other evidence adduced at trial defendant was found guilty. This appeal followed. Held:

1. Initially, defendant contends the evidence was not sufficient to enable any rational trier of fact to find her guilty beyond a reasonable doubt of the crime charged. “ ‘After the jury has returned a verdict of guilty, where the defendant seeks a reversal of his conviction on appeal by . . . asserting the insufficiency of the evidence, the only question presenting itself to the appellate court is whether there is sufficient evidence to satisfy a rational trier of fact of the essential elements of the crime charged beyond a reasonable doubt. (Cit.)’ Hudgins v. State, 159 Ga. App. 723, 724 (285 SE2d 73) (1981). [In the case sub judice, the] alleged victim testified in detail as to what occurred. The [acts] she attributed to [defendant] did in fact constitute molestation. [Further, the victim’s sister corroborated much of the victim’s testimony.] A rational trier of fact could have found from this evidence and the other evidence adduced at trial proof of [defendant’s] guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Castillo v. State, 178 Ga. App. 312 (2) (342 SE2d 782).

2. Next, defendant contends the trial court erred in allowing the State to introduce into evidence three sexually explicit magazines found at defendant’s home. The victim identified these magazines as the ones defendant showed her prior to molesting her. Under these circumstances, the magazines were admissible into evidence. Tyler v. State, 176 Ga. App. 96, 99 (2) (335 SE2d 691).

Decided April 14, 1987.

Benjamin W. Studdard III, for appellant.

E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.

3. In her third and final enumeration of error defendant contends that the evidence failed to establish the date of the alleged offense.

“ ‘ “Where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. Carmichael v. State, 228 Ga. 834, 837 (188 SE2d 495) (1972). An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial. (Cits.)” Cherry v. State, 159 Ga. App. 75 (1) (282 SE2d 717) (1981) . Accord McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982).’ Massengale v. State, 164 Ga. App. 57, 58 (1) (296 SE2d 371).” Johns v. State, 181 Ga. App. 510 (1) (352 SE2d 826).

In the case sub judice, the indictment alleged that defendant committed the offense on July 24, 1985. The victim and her sister testified that defendant committed acts of child molestation on the victim in July 1985. After thoroughly examining the record and the trial transcript, we find that this deviation in the evidence from the allegation of the indictment did not materially affect defendant’s ability to present a defense. Consequently, since the time of the offense was within the applicable statute of limitation, this enumeration of error is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Carley, Judge.

text:
    73761.
    PACK et al. v. THE STATE.
    (356 SE2d 557)
   Carley, Judge.

Appellants Pack and Berry were co-indicted and jointly tried for armed robbery. The jury returned guilty verdicts. Appellants appeal from the judgments of conviction and sentences entered on the verdicts.

Appellants’ sole enumeration of error contests the admission of evidence of their identification by the victims as the perpetrators of the offense. Two forms of identification evidence were offered at trial. There was evidence of the victims’ pre-trial identification of appellants. The victims were also permitted to make an in-court identification.

“Because pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to insure fairness. [Cit.]” Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983). “[A] claimed violation of due process of law in the conduct of pre-trial confrontations depends on the totality of the circumstances. [Cit.]” Goswick v. State, 150 Ga. App. 279, 281 (2) (257 SE2d 303) (1979). The Supreme Court of the United States has established “a two-part test. The first inquiry is whether the identification procedure was impermissibly suggestive. Pretermitting the issue of whether the procedure used in the instant case was impermissibly suggestive, we turn to the second part: whether there was a substantial likelihood of irreparable misidentification.” Goswick v. State, supra at 282 (2). The factors to be considered in determining whether there was a substantial likelihood of irreparable misidentification are: “(1) opportunity to view the defendant at the time of the offense . . .; (2) the witness’ degree of attention . . .; (3) the accuracy of the witness’ prior description . . .; (4) level of certainty demonstrated . . .; (5) the length of time between the crime and the identification. . . .” Goswick v. State, supra at 282 (2). Applying these factors in the case sub judice, there was no substantial likelihood of irreparable pre-trial misidentification of appellants by the victims, even assuming that the procedures may have been suggestive. “[U]nder the totality of the circumstances [we do] not find ‘ “a very substantial likelihood of irreparable misidentification.” [Cit.] Short of that point, such evidence is for the jury to weigh. [Cit.]’ ” Goswick v. State, supra at 282-283 (2). Accordingly, the trial court did not err in allowing the victims’ pre-trial identification of appellants into evidence.

With regard to the in-court identification testimony, the only contention is that such testimony was “tainted” by the pre-trial identification procedures. “ ‘ “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” [Cits.]’ [Cit.]” Whitfield v. State, 176 Ga. App. 476, 477 (336 SE2d 356) (1985). Again assuming that the pretrial identification procedure was impermissibly suggestive, “ ‘there was no evidence that the in-court [identifications were] in any way influenced by it.’ [Cit.]” Fields v. State, 179 Ga. App. 116 (1) (345 SE2d 662) (1986). The in-court identifications were clearly independent of the pretrial photographic lineup. “We find no substantial likelihood of irreparable misidentification on either the pretrial or in-court identification of the [appellants] as the perpetrator [s] of the armed robbery in question. [Cits.]” Smith v. State, 160 Ga. App. 60, 61 (1) (286 SE2d 45) (1981).

Decided April 14, 1987.

M. Michael Kendall, for appellants.

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

Judgments affirmed.

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


text:
    73803.
    CAPITOL PREMIUM PLAN, INC. et al. v. INTEGRITY INSURANCE COMPANY et al.
    (356 SE2d 897)
   Banke, Presiding Judge.

Appellant Capitol Premium Plan, Inc., an insurance premium finance company, brought this action pursuant to former OCGA § 33-22-14 (a) to recover unearned insurance premiums it had allegedly paid on a number of cancelled policies. Named as defendants were the appellee, Integrity Insurance Company, and Overseas and Domestic Underwriters, Ltd., (0 & D), a general insurance agency which placed coverage with various insurers including appellee.

The policies in question were sold to various purchasers by Eric Holston, a local or “producing” insurance agent of O & D. Under the arrangement which led to this lawsuit, Holston “produced” applicants for new insurance, and 0 & D, the general agent, placed the coverage with the appellee, Integrity. Capitol then financed the premiums, paying the money to Holston rather than directly to O & D or to Integrity. Holston apparently absconded with the funds rather than forwarding them to O & D, whereupon O & D used its own money to make the premium payments to Integrity. When Integrity later can-celled the policies, it returned all of the unearned premiums to O & D. Capitol filed the present action against both Integrity and O & D to recover these amounts. It appeals the grant of Integrity’s motion for summary judgment. A motion for summary judgment filed by O & D was denied, and the case remains pending against that firm in the trial court. Held:

Former OCGA § 33-22-14 (a), which was in effect at all times relevant to this litigation, provided in pertinent part: “Whenever a financed insurance contract is cancelled, the insurer, on written no tice of the financing, shall return whatever unearned premiums are due under the insurance contract to the premium finance company, either directly or via the agent, agency, or broker placing the insurance, for the account of the insured or insureds; provided, however, if the insurer elects to return such unearned premiums to the premium finance company for the account of the insured or insureds, via the agent, agency, or broker placing the insurance, the insurer shall be directly responsible to the premium finance company for any and all unearned premiums due to the premium finance company under the contract which are not properly returned to the premium finance company. . . .” (Emphasis supplied.)

Integrity argues that based on this court’s decision in Intl. Indent. Co. v. Bakco Acceptance, 172 Ga. App. 28 (322 SE2d 78) (1984), it cannot be adjudged liable to Capitol because the evidence shows without dispute that it never received or held any money belonging to Capitol. We disagree. Unlike the evidence in Bakco, the evidence in the case before us would authorize a finding that Capitol paid the premium loans to Holston at the specific request of the insurance company’s general agent, 0 & D, to enable it to simplify its accounting procedures; and that such an arrangement was atypical of Capitol’s normal operating procedures. Thus, O & D may reasonably be considered accountable for Holston’s misappropriation of Capitol’s money, and the premium payments 0 & D sent to Integrity may reasonably be considered attributable to Capitol’s having issued the premium loan. In Bakco, on the other hand, there was evidence that the premium finance company had an ongoing, special relationship with the producer or sales agent (Holston, in the present case), in that the finance company had, unbeknownst to the insurance company’s general agent 0 & D, in the present case), authorized the producer to write drafts on its account. Thus, in Bakco the general agent was in no way responsible for the producer’s having received the money from the premium finance company, whereas in the present case the general agent instructed the premium finance company to remit the payment in this manner. Moreover, the general agent’s principal officer acknowledged in his deposition that he had received written notice that the premiums had been financed. Because it further appears from his deposition that Integrity had no employees in Georgia and that 0 & D was its representative here, 0 & D’s receipt of this written notice may reasonably be imputed to Integrity. Accordingly, we conclude that Bakco is not controlling in the present case and that Integrity was not entitled to summary judgment.

Judgment reversed.

Carley and Benham, JJ., concur.

Decided April 14, 1987.

Charles C. Stebbins III, for appellants.

H. Andrew Owen, Jr., Jeffrey F. Leasendale, for appellees.


text:
    73833.
    POWELL v. ORR.
    (356 SE2d 562)
    Decided April 14, 1987.

      Franklin E. Remick, for appellant.
   Birdsong, Chief Judge.

We granted this discretionary appeal to determine whether the trial court erred in changing custody of appellant Nancy Marjorie Orr’s two minor children to the paternal grandparents. The order of the trial court was grounded upon its finding that the mother had not provided a stable home for the children, although she had just begun to establish a stable environment and the court “will possibly reconsider her home at a date in the future.” Held-.

In a custody dispute between a parent and third parties, the law contemplates that the natural parent will be awarded custody unless present unfitness of the parent is established by clear and convincing evidence. Only then is the trial court authorized to consider an award of custody to third parties. Childs v. Childs, 237 Ga. 177, 178 (227 SE2d 49); Peck v. Shierling, 222 Ga. 60 (148 SE2d 491). A determination as to best interests of the child is not the sole standard to be used in a custody contest between a parent and a third party, including grandparents. Mathis v. Nicholson, 244 Ga. 106 (259 SE2d 55). Custody may not be granted to a third party unless a finding has been made upon clear and convincing evidence that the parent is unfit. OCGA § 19-7-4.

The trial court specifically found this mother had begun to establish a stable environment suitable for her children. The court made no finding or determination that she is unfit; no such determination was sought to be made in this proceeding and no move is made to terminate her parental rights. Accordingly, the trial court erred in granting custody to the grandparents simply upon finding that such award was in the best interests of the children on this “petition to change custody” brought by the mother against the father. As to proceedings in a petition by the parent to change custody where a third party is involved, see, e.g., In re J. C. P., 167 Ga. App. 572 (307 SE2d 1).

Judgment reversed.

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

W. Ashley Hawkins, for appellee.


text:
    73807.
    SMITH v. THE STATE.
    (356 SE2d 702)
   Pope, Judge.

Patricia Ann Smith brings this appeal from her conviction of robbery by force. Held:

1. Defendant’s first, second and fourth enumerations of error are argued together. The thrust of these enumerations is that the trial court erred in proceeding to hear and rule upon certain pretrial motions in defendant’s absence. To the extent these pretrial motions involved only issues of law (demand for copy of indictment and list of witnesses, OCGA § 17-7-110; motion for discovery of defendant’s in-custody statements, OCGA § 17-7-210; motion for copy of scientific reports, OCGA § 17-7-211; motion for full recordation), defendant’s presence was not essential and her absence did not thwart a fair and just trial. Riley v. State, 180 Ga. App. 409 (1) (349 SE2d 274) (1986).

Defendant also moved for a voluntariness hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), and for disclosure of any exculpatory material in the State’s file pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). As to the Jackson-Denno hearing, the trial court found, “[a]fter hearing evidence and argument of counsel, . . . that no statement was made by the defendant under interrogation and therefore a hearing thereon is not required.” As to the Brady motion, the trial court found that “after having examined the [State’s] file, there is nothing exculpatory therein.” Assuming arguendo that these pretrial matters comprised a “critical stage of the proceedings, such as would require reversal based on the defendant’s absence . . .” Gilreath v. State, 247 Ga. 814, 824 (279 SE2d 650) (1981), cert. den., 456 U. S. 984, reh. den., 458 U. S. 1116 (1982), we find any error harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. See Riley, supra. See generally Vaughn v. State, 248 Ga. 127 (2) (281 SE2d 594) (1981); LaRue v. State, 137 Ga. App. 762 (2) (224 SE2d 837) (1976). Furthermore, defendant’s assertions of injury amount to nothing more than unfounded speculation and provide no basis for reversal of her conviction.

2. Defense counsel’s inability to recall the substance of three sidebar conferences during voir dire, inadvertently not recorded by the court reporter, provides no basis for reversal of defendant’s conviction absent a showing of harm resulting from the omission. Smith v. State, 251 Ga. 229 (2) (304 SE2d 716) (1983); Kelly v. State, 174 Ga. App. 424 (3) (330 SE2d 165) (1985).

Decided April 14, 1987.

J. William Harvey, for appellant.

Glenn Thomas, Jr., District Attorney, Christopher C. Edwards, Stephen D. Kelley, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    73870.
    PORTER v. THE STATE.
    (356 SE2d 703)
   Pope, Judge.

Willie Porter brings this appeal from his conviction of armed robbery. Held:

1. Defendant first contends that the trial court erred while instructing the jury by constantly referring to defendant and his co-defendant (Steven Scott) plurally and not making it clear that under the evidence the jury might acquit one defendant though the other was convicted. The trial court merely indicated that the jury must return a separate verdict for each defendant. Because the evidence against defendant and his co-defendant was not identical, and because each defendant presented a separate alibi defense, the trial court’s plural reference to the defendants, combined with the failure to charge distinctly that the conviction of one defendant did not necessarily require the conviction of the other, was error. Abrams v. State, 121 Ga. 170 (6) (48 SE 965) (1904). Compare Johnson v. State, 232 Ga. 61 (6) (205 SE2d 190) (1974); Coggeshall v. State, 161 Ga. 259 (8) (131 SE 57) (1925). See also Lofton v. State, 121 Ga. 172 (1) (48 SE 908) (1904), and McDaniel v. State, 74 Ga. App. 5 (2b) (38 SE2d 697) (1946), wherein the record discloses no basis for finding one defendant guilty and the other not guilty. Accordingly, defendant is entitled to a new trial.

2. In light of our holding in Division 1, supra, defendant’s second enumeration challenging the trial court’s purported denial of his motion for complete recordation of all proceedings is moot.

3. We find any error in failing to provide counsel for defendant (an indigent) at the commitment hearing to be harmless beyond a reasonable doubt. Accord State v. Hightower, 236 Ga. 58 (222 SE2d 333) (1976); Mitchell v. State, 173 Ga. App. 560 (1) (327 SE2d 537) (1985).

4. From the evidence of record, any rational trier of fact could have found defendant guilty as charged beyond a reasonable doubt. Accord Maxwell v. State, 163 Ga. App. 606 (295 SE2d 865) (1982); Sims v. State, 159 Ga. App. 692 (2) (285 SE2d 65) (1981).

Decided April 14, 1987.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wendy L. Shoob, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment reversed.

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