text:
    77887.
    77888.
    HUDSON et al. v. MONTCALM PUBLISHING CORPORATION et al. GORDON v. HUDSON et al.
    (379 SE2d 572)
   Beasley, Judge.

Case No. 77887 is the appeal of plaintiffs Susan and Gary Hudson from the trial court’s grant of summary judgment to defendant Montcalm Publishing Corporation in their suit for “negligent, fraudulent, reckless and intentional” invasion of privacy by way of publication. Summary judgment was based on a release executed by the Hudsons.

Mrs. Hudson’s former husband, defendant Gordon, cross-appeals in Case No. 77888 from the denial of summary judgment for him, based on the statute of limitation.

The relevant facts are undisputed. As part of a pattern of general harassment of his ex-wife, Gordon submitted to Gallery magazine, a publication of Montcalm, a nude photograph of Mrs. Hudson which he had taken during their marriage. Accompanying the nude photograph were a proposed caption regarding Mrs. Hudson’s sexual preferences, to be published with the photograph, and' an entry blank and model’s release for publication in Gallery in the “Girl Next Door” Amateur Erotic Photo Contest. Mrs. Hudson’s photograph was published in the October 1985 issue.

Montcalm apparently relied upon the entry blank submitted by Gordon in publishing the photo and caption. The entry blank and model’s release stated that Gary Hudson was the photographer and that the enclosed photograph was of his lover Susan Grossen. It also gave Susan’s age, occupation, and a purported address and telephone number. Neither Mr. nor Mrs. Hudson had in fact consented to the publication or release. They first became aware of it when they saw the picture in Gallery on August 29, 1985. Gordon had falsely filled out the entry blank, including affixing a corporate seal to the document in lieu of the required notary public seal.

Two months after the Hudsons first saw the photograph in Gallery and after meetings with their attorney, they executed a “Release of All Claims” in the presence of the attorney. It was for and in consideration of Montcalm’s production of the original entry blank and model’s release.

On May 5, 1987, the Hudsons sued Montcalm and Gordon, alleging: Montcalm, acting under the auspices of Gallery, failed to investigate the truthfulness or veracity of the materials and failed to obtain their permission to publish, disclose or utilize the materials. Acting negligently and in reckless disregard for the consequences, Montcalm nonetheless published the photograph accompanied by a provocative caption. This was intended by defendants to be seen and read by thousands if not millions of readers of Gallery. The publication invaded the Hudsons’ privacy, held them out in a false light in the public eye and among their friends, family and acquaintances, subjected Mrs. Hudson to contempt, ridicule and humiliation, and was done to exploit for the commercial advantage of Montcalm private information concerning them without their knowledge or consent.

The suit also challenged the executed release of claims against Montcalm on the basis that the document lacked legal consideration and was void as unconscionable due to the actions described and was obtained without the intent of plaintiffs to release their claims against Montcalm and when they were distraught as a result of defendants’ acts.

The Hudsons prayed for legal and equitable relief setting aside the release and for damages pursuant to OCGA § 51-12-6.

Montcalm moved for dismissal, or alternatively for summary judgment on the release. Gordon sought summary judgment, claiming that the suit was time-barred under OCGA § 9-3-33 because it was not brought within one year after the cause of action accrued.

In two separate detailed orders, the court granted summary judgment to Montcalm because of the release and denied it to Gordon. It concluded that the filing of suit approximately one year and eight months after plaintiffs’ cause of action arose was timely because it involved, at least in part, injury to the person so that the two-year rather than one-year limitation in OCGA § 9-3-33 governed.

Case No. 77887

The Hudsons contend there is evidence which would permit findings that the release was obtained by fraud and also that it resulted from unequal bargaining power of the parties and inadequacy of consideration.

1. Appellants maintain that because Gordon testified that he left the notary public signature line blank when he mailed the entry form directly to Montcalm, and because the original form given to them by Montcalm contained a signature in the notary public space, supposedly verifying the information in the form, the inference arises that the signature was placed while the form was in Montcalm’s possession and custody. They argue that such inference, if accepted by the jury, gives rise to exactly that kind of fraud, artifice or trick which would render the release unenforceable.

The trial court’s analysis of this contention is correct. Even if the alleged inference is made, the evidence would not permit the Hudsons to skirt the release. “Fraud which constitutes a ground for voiding the contract under [OCGA § 13-5-5] must be fraud which induced the parties to enter the contract. [Cits.]” Gilreath v. Argo, 135 Ga. App. 849, 851 (3) (219 SE2d 461) (1975). The alleged fraud is not in the inducement to sign the release but rather is related to the signature on the entry form. There is no evidence that they relied on its validity in executing the release.

It is true that “[concealment of material facts may in itself amount to fraud, where direct inquiry is made and the truth evaded.” Neely v. Oliver Farm Equip. Sales Co., 52 Ga. App. 166, 167 (1) (182 SE 630) (1935). But there is no evidence that the Hudsons made any inquiry about the questioned signature prior to signing the release. In any event, their lack of awareness of a problem with the signature, for whatever reason, does not affect the enforceability of the release. Plaintiffs have not sued Montcalm for this alleged fraud, nor amended their complaint to include such a cause of action, nor sought to set aside the release on this ground in the complaint. See Chrysler Corp. v. Marinari, 182 Ga. App. 399, 400 (2) (355 SE2d 719) (1987) as to fraud elements.

The release encompassed “all claims for relief and causes of action which may now or in the future be asserted in any civil action filed by Susan (Grossen) Hudson and/or Gary Hudson against Montcalm Publishing Corporation (Gallery Magazine) in any court of law in or of the United States.” It released and forever discharged Montcalm “from any and all causes of action and claims for relief of any nature whatsoever, known and unknown, anticipated and unanticipated, past, present and future, for any and all personal injuries, property damage or otherwise, including all consequential and derivative damages, resulting or to result from or in any way growing out of the publication” of Mrs. Hudson’s photograph.

Prior to signing, the Hudsons were aware of the publication of the nude photograph based upon the bogus entry blank, and they chose to execute the comprehensive release in favor of Montcalm in order to obtain evidence as to how the publication came about and take legal action accordingly. Consequently, their unpled claim of fraud against Montcalm so as to avoid the release fails.

2. Appellants contend that the release is unenforceable due to inequity in bargaining power because at the time of execution Mrs. Hudson was distraught over the publication and both of them were under enormous stress, shock and humiliation, especially in the context of Gordon’s vendetta against them. They claim that they understood that the release would simply effect a disclosure of information and not release all their claims against Montcalm.

The record does not support such contentions. The release was not executed until two months after the Hudsons became aware of the publication. Mrs. Hudson was not under any medical treatment between the date she became aware of the Gallery publication and the date the release was signed. Before signing, the Hudsons met with their attorney on several occasions, and Mrs. Hudson also had telephone conversations with him.

The attorney informed Mrs. Hudson that he had contacted Gallery in an attempt to obtain the original entry blank submitted by Gordon and that the only way to get it was to sign a release. Mrs. Hudson responded that if that was the way they had to get the entry blank, that was the way they had to do it. The original form was obtained by this trade.

The Hudsons expressed no dissatisfaction with their attorney’s representation. The release was signed and notarized in his office after the Hudsons read it. The attorney was present when the release was executed, and he initialed it and signed it as approved. It concluded: “The undersigned further states that they have fully read the foregoing release in its entirety, and that they have been fully advised by their attorney, . . . , with respect to its legal effect and that he knows and understands the contents of this document and signs it as his own free act.”

There is no evidence of great disparity of mental ability or otherwise in contracting the bargain. See OCGA § 23-2-2. Compare Southern R. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987).

3. Appellants contend inadequacy of consideration for the release.

“[T]he time at which the existence and adequacy of consideration is determined is the time of contracting. [Cit.] ” Breedlove v. Hurst, 181 Ga. App. 4, 5 (1) (351 SE2d 212) (1986). The Hudsons wanted to obtain the original document in order to subject it to handwriting and fingerprint specialists and thus they entered into the bargain and received the document for use in taking action against Gordon.

A release may be gratuitous or given for an inadequate consideration. Philips Audio &c. Corp. v. Bateman, 160 Ga. App. 12, 14 (285 SE2d 747) (1981). The Hudsons did receive valuable consideration for the release.

The evidence on summary judgment did not raise a material issue of disputed fact, OCGA § 9-11-56, as to the validity and enforceability of the release. It was a complete defense for Montcalm. OCGA § 13-5-7.

Case No. 77888

Gordon contends that the trial court erred in denying summary judgment to him because the invasion of privacy claim seeks to protect reputation, so that the one-year statute of limitation in OCGA § 9-3-33 bars the Hudsons’ suit.

The Hudsons’ action did not expressly seek damages for injury to their reputation but rather to their persons. “The definition of the right of privacy as the term was used in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (5) (50 SE 68, 69 LRA 101, 106 ASR 104, 2 AC 561) and as it is generally considered in the cases dealing with the subject, is one that deals with the person as a person, his mental proclivities and emotional reactions. ‘It is, simply stated, the right to be let alone; to live one’s life as one chooses, free from assault, intrusion or invasion except as they can be justified by the clear needs of community living under a government of law.’ [Cit.] So considered, ... ‘it is an incident of the person, and not of property.’ ” McQueen v. Wilson, 117 Ga. App. 488, 490 (2) (161 SE2d 63) (1968), rev’d on other grounds, Wilson v. McQueen, 224 Ga. 420 (162 SE2d 313) (1968).

In Jones v. Hudgins, 163 Ga. App. 793, 794 (1) (295 SE2d 119) (1982), this court cited as persuasive a decision of the Pennsylvania Superior Court on the issue of what statute of limitation should be applied in a right to privacy action for appropriation of a picture. “In applying the statute of limitation for injury to the person, the [Pennsylvania] court said: ‘It has been said: “The gravamen of the action ... is the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication . . .

“Since, under the law, recovery may be had for an invasion of the right of privacy for injured feelings alone, the wrongs redressed must be considered as a direct rather than an indirect injury and one that is wholly personal in character, not depending on any effect which the publication may have on the standing of the individual in the community. It seems to us that the mind of the individual, his feelings and mental processes, are as much a part of his person as his observable physical members. An injury, therefore, which affects the sensibilities is equally an injury to the person as an injury to the body would be. In that respect a cause of action for the violation of the right of privacy, causing mental suffering to the plaintiff, is an injury to the person.” [Cits.]’ Hull v. Curtis Publishing Co., 182 Pa. Super. 86 (1), 97 (125 A2d 644 (3)).”

Decided February 21, 1989

Rehearing denied March 8, 1989

Bennett, Williams & Henry, Michael T. Bennett, Morrison & McCormick, R. Jeffrey Morrison, for Hudson.

Goodman & Bush, James E. Goodman, F. Clay Bush, for Montcalm.

Awtrey & Parker, J. Lynn Rainey, for Gordon.

While the tort of invasion of privacy may well involve injury to one’s reputation, the claimed invasion allegedly injured the plaintiffs’ personal sensibilities and mental repose aside from the grief occasioned by others’ opinion of them following the publication. See Cabaniss v. Hipsley, 114 Ga. App. 367 (151 SE2d 496) (1966) for a discussion of the potential interests affected in invasion of privacy claims.

The two-year statute of limitation in OCGA § 9-3-33 for injury to the person applied, precluding summary judgment to Gordon as to timeliness of the suit.

Judgment affirmed in Case No. 77887. Judgment affirmed in Case No. 77888.

Banke, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    75516.
    WILLIAMS et al. v. CRAWFORD.
    (381 SE2d 444)
    Decided March 8, 1989.

      Don H. Taliaferro, for appellants.
      David B. Dunaway, for appellee.
   Banke, Presiding Judge.

In accordance with the judgment of the Supreme Court in Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989), the decision of this court in Williams v. Crawford, 186 Ga. App. 643 (368 SE2d 337) (1988), is vacated, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


author: Deen, Presiding Judge.

text:
    76132, 76133.
    FRANKLYN GESNER FINE PAINTINGS, INC. v. KETCHAM.
    (381 SE2d 443)
    Decided March 8, 1989.

      Harmon W. Caldwell, Jr., Harry W. MacDougald, Wade H. Watson III, for appellant.

      John K. Dunlap, for appellee.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court in Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3 (375 SE2d 848) (1989), our decision in Franklyn Gesner Fine Paintings v. Ketcham, 186 Ga. App. 853 (368 SE2d 774) (1988), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed and case remanded.

Car ley, C. J., and Sognier, J., concur.


text:
    76578.
    THOMAS B. HARTLEY CONSTRUCTION COMPANY, INC. v. LIBERTY LIFE INSURANCE COMPANY.
    (381 SE2d 443)
    Decided March 8, 1989.

      W. Courtney LaFon, Beverly J. Hall, for appellant.

      John A. Howard, for appellee.
   Banke, Presiding Judge.

In accordance with the judgment of the Supreme Court in Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808 (375 SE2d 222) (1989), the decision of this court in Thomas B. Hartley Constr. Co. v. Liberty Life Ins. Co., 187 Ga. App. 849 (371 SE2d 657) (1988), is reversed, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    77161.
    HILLS v. THE STATE.
    (379 SE2d 626)
    Decided March 8, 1989.

      Kenneth D. Kondritzer, for appellant.
   Carley, Chief Judge.

Appellant was tried before a jury and convicted of possession of heroin with intent to distribute. He appeals from the judgment of conviction and sentence entered on the jury verdict.

1. The trial court permitted one of the arresting officers to testify as to certain hearsay information that he had received. The testimony was admitted as explanatory of the officer’s conduct in approaching and arresting appellant. Appellant enumerates as error the trial court’s ruling that this hearsay evidence was admissible pursuant to OCGA § 24-3-2.

Assuming without deciding that the testimony was inadmissible under our Supreme Court’s rulings in Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), and in Teague v. State, 252 Ga. 534 (1) (314 SE2d 910)(1984), there was no reversible error. The record shows that other witnesses, including a defense witness on direct examination, testified to essentially the same information as was contained in the officer’s testimony which was challenged as hearsay. “For that reason, the testimony of [the officer] is merely cumulative, and we find it more than highly probable that its admission did not contribute to the verdict. [Cit.]” Teague v. State, supra at 537. See also Rushin v. State, 180 Ga. App. 276 (3) (348 SE2d 910) (1986); Simmons v. State, 174 Ga. App. 906, 907 (2) (331 SE2d 923) (1985).

2. Appellant enumerates as error the trial court’s giving of “an overbroad jury instruction.”

Appellant has waived his right to enumerate the challenged charge as error. “In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), ... of reserving the right to object on motion for new trial or on appeal.” Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). See also Wadley v. State, 257 Ga. 280, 281 (2) (357 SE2d 588) (1987). The record shows that, upon the trial court’s direct inquiry, appellant did not follow the correct procedure for preserving the right to enumerate error as to the jury charge. “In the absence of [an objection or] a reservation in response to a direct inquiry by the trial court, appellant has waived the objection he now makes. [Cit.]” Kelly v. State, 174 Ga. App. 424, 425 (4) (330 SE2d 165) (1985).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    77432.
    HARPER v. MAYOR & ALDERMEN OF SAVANNAH.
    (380 SE2d 78)
   Beasley, Judge.

Harper appeals the grant of a directed verdict to the defendants in his suit for wrongful conversion of a motorcycle. The case previously appeared before us. Harper v. Savannah Police Dept., 179 Ga. App. 449 (346 SE2d 891) (1986). As a result of the reversal there effected, the trial resulting in this appeal was conducted.

The transcript and record show that on November 5, 1979, police officers were called to a home by a 15-year-old girl’s father who complained that he had found her naked and drunk in the attic of the home, which belonged to a third party. Harper and the girl had apparently been seeing each other. When the police arrived, they saw Harper running from the scene. In the front yard was a motorcycle. It had no tag, and two of the serial numbers appeared to have been altered. At the time of its seizure, the officers were treating the investigation as one of child abuse or rape. Harper was eventually charged with providing alcohol to a minor. He was arrested and inquiries were made by his family concerning the motorcycle. All were told that defendant could reclaim it by proving ownership and paying the storage cost.

Harper became incarcerated for conviction of an unrelated felony and filed suit pro se in October 1983 against the “Savannah Police Department, the City of Savannah, Georgia, and yet unidentified employees . . .” seeking damages for the loss of the motorcycle, the loss of its use, and punitive damages.

Up to trial, no proof of ownership had been provided and the motorcycle was still in the custody of a towing company under contract with the city.

Following remand after the first appeal, Harper was served with the answers to interrogatories naming the individual police officers. He amended his complaint to add them.

1. Harper’s first enumeration urges error in the court’s ruling that the individual defendants were not parties to the suit.

OCGA § 9-11-10 provides that a complaint may designate a party whose name is not known by any name and when the true name is determined, “the pleading may be amended accordingly.” OCGA § 9-11-15 allows for amending pleadings to change parties at any time before the pretrial order is entered, or thereafter with permission of the court or consent of the adverse party. No pretrial order was entered in the case until May 1988. Section 9-11-15 (c) further provides that such an amendment will relate back for purposes of the applicable statute of limitation “if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” While that section refers only to “changing parties,” it has been held to refer to adding or dropping parties, as well as substituting new parties for those earlier joined. Cobb v. Stephens, 186 Ga. App. 648, 649 (368 SE2d 341) (1988).

Where one has filed a complaint naming a “John Doe” defendant, as Harper did here, the requirements of OCGA § 9-11-15 (c) must be met before the amendment substituting the named party will relate back to the date of the complaint, if service has not been effected before the expiration of the statute of limitation. Bailey v. Kemper Group, 182 Ga. App. 604, 606 (356 SE2d 695) (1987); Larson v. C. W. Matthews Contracting Co., 182 Ga. App. 356, 357 (2) (356 SE2d 35) (1987); Sims v. American Cas. Co., 131 Ga. App. 461, 481 (6) (206 SE2d 121) (1974). This is the procedure referenced in our earlier opinion in this case.

The burden of showing compliance with Section 15 (c) is on the plaintiff. Bailey, supra. No showing has been made.

None of the officers was ever served with the summons and complaint as required by OCGA § 9-11-4 (d) (7); Trammel v. Nat. Bank, 159 Ga. App. 850, 851 (1) (285 SE2d 590) (1981). The claims alleged by Harper are for damage to personal property and/or for return of the property. The statute of limitation for either is four years. OCGA §§ 9-3-31; 9-3-32. The original complaint had been filed shortly before the statute expired.

“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. [Cits.]” Bailey, supra at 607. Thus, the required showing not having been made, the court’s denial of the amendment was not error.

Although the court below explained its denial of the motion by stating that it was based on failure to serve within a reasonable time, a ruling right for any reason will be affirmed. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978); Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344) (1988).

2. Before the jury was called, the city moved that the answers to interrogatories not be allowed as documentary evidence. Harper had listed them as such on his pretrial order submission. The court correctly ruled that such responses are not evidence and could not be used except in impeachment of the city’s witnesses. OCGA §§ 24-1-1 (1); 9-11-26 (b) (1).

Decided March 8, 1989.

Michael Harper, pro se.

Miriam D. Lancaster, James B. Blackburn, for appellees.

3. Harper’s third, fourth and fifth enumerations allege error in the court’s direction of a verdict at the close of his case. Harper argues that the court’s grant of directed verdict was improper because it was based in part on sovereign immunity under OCGA §§ 36-33-1 & 36-33-3. As pointed out in Harper, supra, suit against the city is barred as to any tort claim. Harper, supra at 449 (2). The only viable claim which remained was that of an implied contract of bailment. OCGA § 44-12-40; Davidson v. Ramsby, 133 Ga. App. 128, 131 (5) (210 SE2d 245) (1974).

There was no evidence presented by Harper of his delivery of the motorcycle to the police. In fact he denied doing so. Thus, no bailment was shown as a matter of law. OCGA § 44-12-40; Davidson, supra.

4. The fifth enumeration reflects a strategic choice made by Harper in the course of the trial. The fact that the trial did not develop as anticipated by him in this regard is no ground for reversal. See Chenault v. State, 234 Ga. 216, 220 (2) (215 SE2d 223) (1975).

5. Finally, Harper alleges in his brief that he was threatened by an unnamed sheriff or bailiff not to interrupt the court or defense counsel and not to argue with the court and that these threats chilled his presentation. Factual allegations made in briefs will not be considered by this court. Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153) (1988).

Judgment affirmed.

Bank, P. J., and Birdsong, J., concur.

       The record and transcript are devoid of any proof of purchase of insurance by the city which would amount to a waiver pursuant to Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987); Brockman v. Burnette, 184 Ga. App. 66, 67 (360 SE2d 655) (1987).


author: Benham, Judge. Pope, Judge,

text:
    77691.
    CIPROTTI v. THE STATE.
    (379 SE2d 802)
   Benham, Judge.

This is an appeal from the denial of appellant’s plea of autrefois acquit. The order denying the plea arose from a hearing mandated by this court’s decision in Ciprotti v. State, 187 Ga. App. 61 (369 SE2d 337) (1988). The procedural history of the case is set out in that opinion, but it is pertinent to note here that appellant’s demand for speedy trial was dismissed by the trial court when she, at the call of the case, requested a two-week postponement in order to await compliance with a subpoena which had been served at her behest.

1. The State has raised several technical attacks on the plea, but we deem them to be without merit in light of this court’s direction to the trial court to address the merits of appellant’s plea. Id.

2. In State v. Waters, 170 Ga. App. 505 (3) (317 SE2d 614) (1984), this court held that the filing of a motion to suppress was a waiver of a demand for speedy trial because filing the motion invoked the entire procedure applicable, including a direct appeal by the State if the motion should be granted. Thus, we held such a defendant, by effectively consenting to a delay of his trial pending final resolution of the issue of evidentiary admission, consented to passing the case to a subsequent term. Citing Waters, the State argues that since there was a possibility that the documents appellant sought would not be available within the two-week period for which she requested a postponement, appellant waived her demand for speedy trial. We disagree.

The essential difference between the situation in Waters and the situation in this case is that while Waters put into action a procedure which gave others the power to postpone the trial, appellant merely asked for a short delay to wait for compliance with a subpoena. Such a delay did not put into motion a procedure by which another party’s exercise of its rights would delay the trial. Had appellant invoked the aid of the court to force compliance with the subpoena, this case may have come within the rule stated in Waters, but she did not. Asking for a postponement was not an affirmative act which amounted to a consent to delay the trial until some issue was resolved.

3. The State also argues that appellant is not entitled to a discharge in this case because the record does not show that she was physically present in court on the date to which trial was postponed at her request. See Luke v. State, 180 Ga. App. 378 (349 SE2d 391) (1986). In making that argument, the State misapprehends the placement of the burden of proof in the proceedings leading to this appeal. In the trial court, the burden of showing a waiver of appellant’s demand for speedy trial was on the State. State v. McNeil, 176 Ga. App. 323, 325 (335 SE2d 728) (1985). The time for the State to bear that burden was at the hearing on appellant’s plea. It not only did not bear the burden, it failed to even raise the issue below. Since the State did not show a waiver by absence below, appellant has no burden in this proceeding to negate a waiver of that kind.

4. The reason given by the trial court for denying appellant’s plea was that since the earlier dismissal of the demand for speedy trial was correct, there was no demand extant when appellant was tried. The ground on which the demand was dismissed was that appellant had not answered ready when the case was called for trial. The trial court stated that reason when it dismissed the demand and reiterated it when it denied the plea; the State relies on the same reason in its brief on this appeal. OCGA § 17-7-170, the statute governing speedy trial demands, however, has no such requirement in it. Compare OCGA § 17-7-171 (b), which applies only to capital offenses and contains such a requirement.

The ground on which the trial court relied was nonmeritorious and the record reveals no affirmative act of appellant which delayed trial in this case until after the period mandated by her demand. That being so, she was entitled to discharge, and the denial of her plea of autrefois acquit was error. Frank v. State, 145 Ga. App. 678 (2) (244 SE2d 619) (1978).

Judgment reversed.

McMurray, P. J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

The record shows the trial court’s dismissal of defendant’s motion for speedy trial was based on the assumption that an announcement of ready for trial is a condition precedent to reliance upon defendant’s demand for a speedy trial. A defendant demanding a speedy trial in a capital case, pursuant to OCGA § 17-7-171, is required to announce ready when the case is called for trial. However, such a requirement is not imposed by the language of OCGA § 17-7-170, the statute governing a demand for a speedy trial in a non-capital case.

Here, the defendant was not ready for trial but requested a postponement for serving subpoenas for certain evidence. As the majority opinion notes, if defendant’s request had necessarily required the case to be tried outside the period of her demand for speedy trial, then her request would constitute a waiver of the demand. However, a request for or consent to postponement to a term within the period of the demand for speedy trial does not constitute a waiver of the demand. See Walker v. State, 89 Ga. 482 (15 SE 553) (1892); Adams v. State, 129 Ga. App. 839 (201 SE2d 649) (1973). “Only if [defendant] had agreed to postponement to a time outside the term of the demand would [defendant] be held to have waived the demand.” Adams at 842. The record shows that four additional juries were impaneled after the two-week period of postponement requested by the defendant but before the expiration of the term following the one in which she was indicted. Therefore, defendant could have been tried within the term and her request for postponement did not necessarily require the case to be tried after the expiration of the term.

Decided March 8, 1989.

Laura Ciprotti, pro se.

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


author: Birdsong, Judge. Beasley, Judge,

text:
    77745.
    BRANTLEY v. THE STATE.
    (379 SE2d 627)
   Birdsong, Judge.

The appellant Charles W. Brantley brings this appeal from his conviction of the offense of armed robbery. Held:

1. The State has moved to dismiss the appeal on the basis that it is untimely. The verdict of guilty was returned on September 9, 1987; sentence was filed the same day; motion for new trial was filed September 25, 1987 and overruled on March 18, 1988.

On April 10, 1988, appellant forwarded a letter to the “Superior Court’s Sentence Review Panel” in which he stated: “I was appointed the Public Defender’s office to handle the appeal of my conviction and Pm thinking that I understood the Judge to say that they would also handle the appeal of my sentence, through your office—I haven’t been able to get any correspondence from my attorney, so I’m in the dark as to where I stand—my question is this—Does my appeal have to be totally exhausted before you all will review me for sentence reduction, or what?”

Appellant’s counsel, on May 10, 1988, filed a motion for an out-of-time appeal with the trial court, reciting therein “counsel was appointed to represent Appellant on appeal by [the] court after the thirty days required to file a timely appeal.”

A notice of appeal was filed with the trial court on May 24 and the record was docketed in this court on August 22, 1988 without a ruling on the motion for the out-of-time appeal. A supplemental record was filed with our Court on September 13, 1988, containing the order of the trial court denying the out-of-time appeal, which was filed in the trial court on September 12, 1988.

Appellant argues that his appeal should be considered under the mandate of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821). We agree.

Evitts held “the Fourteenth Amendment guarantees a criminal appellant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal ‘adequate and effective’ . . . among those safeguards is the right to counsel. . . .” Id. at 392. Here, appellant was advised of his appellate rights and obviously thought the trial court had appointed “the Public Defender’s office to handle the appeal of [his] conviction . . . [but he had not] been able to get any correspondence from [his] attorney. . . .”

Evitts further stated that “a criminal trial is thus not conducted in accord with due process of law unless the defendant has counsel to represent him. . . . [Id. at 394.] A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” Id. at 396. In the instant appeal, appellant was not appointed appellate counsel until after 30 days following denial of the motion for new trial, and the trial court denied appellant’s request for an out-of-time appeal.

The State of Georgia recognizes the right to effective assistance of counsel at trial and on first appeal as of right “and has provided for ameliorative relief in the form of an out-of-time appeal.” Cannon v. State, 175 Ga. App. 741 (334 SE2d 342). And, an appellant who is “ ‘denied effective assistance of counsel in attempting to appeal his conviction . . . (shall) be allowed, if he so desires, to file an out of time appeal to the proper appellate court. . . .’ McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 SE2d 141).” Cannon, supra at 741-742.

This court has, on numerous occasions, out of an “abundance of caution” in interpretation of Evitts, supra (Boothe v. State, 178 Ga. App. 22, 23 (342 SE2d 9)), in the interest of judicial economy (Johnson v. State, 183 Ga. App. 168 (1) (358 SE2d 313)), and “our state policy of deciding cases on the merits whenever possible” (Johnson v. State, 182 Ga. App. 477 (1) (356 SE2d 101)) “disapproved of the dismissal of a criminal defendant’s first appeal as of right.” Conway v. State, 183 Ga. App. 573 (1) (359 SE2d 438) (en banc); accord Hubbard v. State, 183 Ga. App. 395 (360 SE2d 78); Clark v. State, 182 Ga. App. 752 (2) (357 SE2d 109). Accordingly, the State’s motion to dismiss the appeal is denied.

2. Appellant enumerates as error the trial court’s charge on credibility of witnesses “by making a distinction between appellant’s testimony and that of other witnesses’ . . . .” The court charged that when a defendant testifies “his testimony is to be weighed, and is to be received the same as that of any other witness, and his credibility [is to be] subjected to the same test as applied to any other witness.

“In other words, when the defendant testifies you don’t have to make any special case of that. You just treat it the same as any other witness . . . you look at his credibility the same as you would anyone else. What are the probabilities, the likelihood of him lying under all the circumstances. ...”

While not expressly approving this latter portion of the charge, we find no reversible error when considering the charge as a whole. The credibility of all witnesses, including the defendant who testifies in his own behalf, is for the jury under proper instructions from that court. OCGA §§ 24-9-80; 24-9-20 (a). In determining weight and credibility, the jury may consider the interest or want of interest of the witness. See OCGA § 24-4-4; Green’s Ga. Law of Evid. 134, § 82; Agnor’s Ga. Evid. 70, § 5-6.

Where the defendant’s statement is inconsistent with other direct and circumstantial evidence, his explanation may be rejected by the triers of fact. Green v. State, 155 Ga. App. 795, 796 (272 SE2d 761); accord Terry v. State, 243 Ga. 11 (1) (252 SE2d 429).

Jury instructions must always be viewed as a whole (Whitt v. State, 257 Ga. 8 (3) (354 SE2d 116)), and the charge as a whole instructed the jury to consider the appellant’s testimony the same as that of any other witness. Accordingly, we find this enumeration to be without merit. Clark v. State, 153 Ga. App. 829, 831 (266 SE2d 577).

3. The trial court’s pre-trial orientation instruction is alleged to contain an incorrect charge urging the jury to reach a verdict. This court, in Oliver v. State, 168 Ga. App. 477 (4) (309 SE2d 627); Clark v. State, 141 Ga. App. 257 (1) (233 SE2d 246); and Decker v. State, 139 Ga. App. 707 (4) (229 SE2d 520), approved of instructions to the jury after it was empaneled on the modus operandi of a trial. We find the instructions in the present appeal to emphasize only the duty of the jurors to “pay attention to the facts” and “listen to [the] evidence” because the State’s evidence and the defendant’s evidence would be in apparent conflict and the jurors would be called upon “to analyze the facts” and apply rules the court would give them “in order ... to reach a verdict.” The court cautioned the jurors they were here “to reach a verdict” and that the court would look to them “to tell us what the facts are.”

A trial judge may properly admonish a jury as to the propriety and importance of agreeing upon a verdict and may urge them to make reasonable efforts to harmonize their views, emphasizing the time and expense involved in trials, provided care is taken not to suggest a particular verdict or give instructions coercing a juror into abandoning an honest conviction for reasons other than those based upon the trial or arguments of other jurors. McMillan v. State, 253 Ga. 520 (4) (322 SE2d 278); McLendon v. State, 205 Ga. 55, 67 (52 SE2d 294). We find no error in the instructions given.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur to bring an end to this case, but it is procedurally defective and our jurisdiction is questionable.

The late notice of appeal is from the judgment of conviction and sentence and there is no appeal from the later order denying the motion for permission to file an out-of-time appeal. Of course, we could allow the notice to be amended to embrace this ruling, pursuant to OCGA § 5-6-48 (d).

We do not know the reason for the denial, as there is no transcript of the hearing nor any explanation in the order.

The basis for the motion was the allegation that counsel was not appointed until after the appeal time had run. However, it appears that the public defender was appointed to represent defendant on appeal one week after imposition of sentence. The court had told defendant at sentencing that it would have to know within 30 days of sentencing if defendant needed a lawyer appointed so that the court could see “that you have competent counsel to represent you in any appeal.”

The court’s letter a week later appointed the public defender for “appeal of sentence” as well as for motion for new trial, a preliminary matter. It is not limited either to application for sentence review or to appeal to the Court of Appeals from the sentence as the judgment. This letter is the only evidence of post-conviction appointment in the record.

Appellant so understood the appointment, as he wrote to the sentence review panel that he “was appointed the Public Defender’s office to handle the appeal of [his] conviction” and that he understood “they would also handle the appeal of [his] sentence” to the review panel. The public defender pursued a timely motion for new trial but did not file a notice of appeal within 30 days of its denial, as required by OCGA _§ 5-6-38 (a).

In deciding the merits, we are reversing the trial court’s denial of an out-of-time appeal, which would have had to include the conclusion that it was not required as a matter of law. Appellant has not shown that the court erred in this regard. If counsel was remiss in filing the notice of appeal, a claim of ineffective assistance of counsel should be aired in the trial court. Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986); Thompson v. State, 257 Ga. 386, 387 (2) (359 SE2d 664) (1987). Our remanding the case would probably serve no useful purpose, however, as it appears that the unexplained delay was not attributable to defendant. See Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985); Shirley v. State, 188 Ga. App. 357, 360 (1) (373 SE2d 257) (1988).

Orderly procedure helps to assure and protect both uniform treatment of parties and due process of law. I agree to depart from the rules in this case reluctantly but do so in the hope that this case will be an oddity and that the finality to which both defendant and the public is entitled, Ga. Const. 1983, Art. VI, Sec. IX, will better be served by ruling on the merits.

Decided March 8, 1989.

M. Muffy Blue, Penny A. Penn, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Lyn K. Armstrong, Linda S. Finley, Assistant District Attorneys, for appellee.


text:
    77818.
    WILLIAMS v. THE STATE.
    (381 SE2d 65)
   Birdsong, Judge.

Eric Eugene Williams was convicted of rape, armed robbery, and two counts each of kidnapping, terroristic threats and possession of a firearm during the commission of a crime. He appeals from the denial of his motion for new trial.

The evidence presented at trial showed that the victim and her eight-year-old son had completed grocery shopping on August 23, 1985, at about 8:00 p.m. in a neighborhood shopping center in Savannah, and were preparing to drive away from the well-lighted parking area when a man she identified as appellant approached their car, put a gun to her head and threatened to kill her unless she opened the car door. Appellant entered the car on the passenger side and held the gun to the victim’s son’s head, threatening to shoot him if she did not comply with his demands. The victim drove out of the parking lot, following the directions given by appellant until he ordered her to stop and let him drive because of her nervousness. Appellant exited and reentered the car from the driver’s side, where his fingerprint was subsequently found on the front door handle. While appellant drove, he continued to display the pistol and made numerous threats to the victim and her son to shoot both of them or blow their brains out.

After arriving at an isolated location, appellant ordered the victim to undress and get in the backseat and for the son to crouch beneath the dashboard. While raping the victim, appellant pressed the gun against her head and continued to threaten to kill her and her son if they did not obey him. Afterwards, he became even more aggressive and forceful in his threats and drove the victims back to another parking area in the same shopping plaza, where he took $11 from the mother and fled. She drove home, and her husband immediately called the police to whom the victim gave a detailed description of appellant, including such particular characteristics as his large hands and stomach, skin color, body and facial hair, his clothing, and gun. She and her son both picked appellant from a live lineup on February 27, 1986, and were “about ninety-five percent sure” he was their assailant. On March 3, 1986, police executed a search warrant of appellant’s house, recovering pants and a shirt identified by the victim as the same as those worn by the perpetrator. Although appellant denied owning a handgun, police also found some .32 caliber ammunition. Both the victim and her son positively identified appellant in court and at two prior court appearances.

A physical examination of the victim shortly after the rape revealed the presence of recently deposited sperm in her vagina. Expert testimony presented by the State established that the victim was a “secretor,” one of about 80 percent of the population whose blood type can be derived by examination of body fluids. The victim has international blood type 0; chemical analysis of semen obtained from her vaginal swab revealed the presence of a small amount of H-reactive substance, which indicated that the semen donor was either a non-secretor of any blood type or a blood type O secretor. Appellant was found to be a non-secretor with blood type 0.

Prior to trial, the trial court heard arguments of counsel and ruled admissible evidence of a similar transaction. After limiting instructions were given, the State presented evidence that on December 13, 1985, another woman had been raped by a man she positively identified both in and out of court as appellant, after she was lured to a vacant apartment he pretended to want to rent. Her vaginal swabs showed that she had been raped either by a blood type A secretor or a non-secretor. A secretor-rapist could not have deposited both semen samples; thus the rapist’s semen could have come only from a nonsecretor, or the 20 percent of the population of which appellant was a member. The statistical size of this segment was further reduced by the elimination of non-black persons and women to only 5 percent of the population, and the percentage of possible suspects became even smaller with the exclusion of children and the elderly.

Appellant denied raping either woman and presented four alibi witnesses who were friends or co-workers, two of whom established appellant’s alibi on the wrong dates. The testimony of the other witnesses was also less than positive and not objectively verifiable. Held:

1. Appellant contends that the trial court erred in admitting testimony of the rape of the other woman, as this impermissibly placed his character in evidence and denied him a fair and impartial trial. Appellant was positively identified by each of the victims as the perpetrator of her rape. The similarities of the two crimes committed were numerous, including the physical characteristics of both victims, the rapes’ times and locations, and the fact that both rapes took place on a rainy day when appellant, who was a construction worker, would not be working. The perpetrator was dressed in the same type work clothes, used similar threats both times, and raped both victims in basically the same manner.

“ ‘Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. [Cit.] Evidence of independent crimes has been admitted to show bent of mind and course of conduct, and has been most liberally extended in the area of sexual offenses. [Cit.] There was no question that appellant was the perpetrator of the similar offense [s], and the modus operandi of appellant was the same. Thus, such evidence was admissible to show appellant’s bent of mind. . . . [Cit.]’ [Cits.]” Claypool v. State, 188 Ga. App. 642 (1) (373 SE2d 765); accord Oller v. State, 187 Ga. App. 818, 820-821 (371 SE2d 455).

2. Appellant asserts that the trial court committed reversible error in failing to give timely curative instructions in regard to comments of the prosecutor in his opening statement concerning evidence to be presented of the other rape. Appellant was aware this evidence had been ruled admissible and that the State was going to present it; therefore, the reference to it was not improper. Burroughs v. State, 186 Ga. App. 40 (6) (366 SE2d 378); Poss v. State, 167 Ga. App. 86 (5) (305 SE2d 884).

3. The trial court entered two orders, drafted by defense counsel, prior to trial authorizing a court-appointed fingerprint examiner and a court-appointed private investigator to assist appellant in the preparation of his defense. The order authorizing hiring the private investigator specified that any information obtained was to be reported only to the attorney for appellant and not to be divulged to any other person. Appellant asserts that the trial court erred in allowing the prosecution to introduce fingerprint evidence obtained in direct violation of that order.

We find no error. The information received by the State from appellant’s fingerprint examiner, that the print lifted from the victim’s car matched appellant’s print, was not obtained in violation of the court’s order since the order authorizing an independent fingerprint examination did not prohibit disclosure of the results, and appellant did not instruct his examiner not to divulge his findings to the State. Moreover, the State showed that its own police expert reached the same results in the test he conducted. Thus the same information was elicited from another witness, and such “[p]roof of the same facts by legally admissible evidence renders harmless a prior admission of incompetent or inadmissible evidence. [Cits.] And, even if any admission was error it is ‘highly probable’ it did not contribute to the verdict. [Cit.]” Frink v. State, 177 Ga. App. 604, 607 (1) (340 SE2d 631).

4. Appellant assigns error in the trial court’s allowing the State to “rehabilitate” two jurors after they had been excused for cause, thereby forcing the defense to exercise a valuable peremptory strike in selecting an alternate juror. It appears from the transcript that while these two veniremen initially expressed reservations about their ability to be impartial in a rape case, upon reflection and the opportunity to respond more fully, one of these women stated that she would be able to come to an impartial opinion based solely on the evidence presented at trial and the charge of the court, and was qualified as an alternate. However, she did not serve on the jury.

Appellant has failed to illustrate any harm as a result of the trial court’s action. “While the venireman may have initially expressed some doubt as to [her] impartiality, this does not demand as a matter of law that [she] be excused for cause. The venireman having indicated to the trial court that [she] could render a fair and impartial verdict based solely on the evidence presented in court the venireman was prima facie competent to serve as a juror in the case sub judice. Whether to strike a juror for favor lies within the sound discretion of the trial court. Under the circumstances of the case sub judice, we find no abuse of the trial court’s discretion. [Cits.] This enumeration of error is without merit.” Durham v. State, 185 Ga. App. 163, 165 (2) (363 SE2d 607). See also Jones v. State, 184 Ga. App. 4 (2) (360 SE2d 599).

5. On the day of trial, appellant made a verbal request to conduct an in-camera inspection of the State’s files to obtain a composite sketch of the perpetrator of the other rape. The State explained that this document had been in the possession of a detective who was deceased, and was no longer available, although the prosecutor had personally searched the police files for it. During argument on this motion, counsel for appellant conceded that he had viewed the State’s entire file prior to trial and that the composite was not in it, but he enumerates as error the trial court’s refusal to conduct an in-camera inspection therefor upon this motion.

“Here, as in the case of Hill v. State, 248 Ga. 304, 305 (283 SE2d 252) (1981), the ‘appellant has not come forward with anything to suggest a suppression of material, exculpatory information by the [S]tate. The burden is on the appellant to establish a Brady violation . . . and this burden has not been satisfied in the instant case.’ ” Reed v. State, 249 Ga. 52, 56 (3) (287 SE2d 205). “It is elementary that counsel for the State cah make available only such evidence as it has in its file, or of which it has knowledge, and ‘is under no requirement to conduct an investigation on behalf of a defendant. . . .’ [Cit.] Nor is an accused, as a matter of right, entitled to receive copies of police reports and investigations made in the course of preparation of a case against a suspect. [Cit.] Further, our Supreme Court and the U. S. Supreme Court are in agreement that ‘there is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” ’ [Cits.]” Fuqua v. State, 183 Ga. App. 414, 417-418 (1) (b) (359 SE2d 165); accord Massengale v. State, 189 Ga. App. 877 (4) (377 SE2d 882). We find no evidence of suppression so as to deny a fair trial.

Decided March 8, 1989.

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

6. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Burroughs, supra.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully except as to Division 3. In that regard I agree that allowing the State to introduce the private investigator’s test results was not error because disclosure to the State had not been prohibited in the first place.

The “same facts” evidentiary rule, however, does not apply to this evidence. The fact that the police expert tested defendant’s fingerprints and concluded they matched the print on the car is not the same body of facts or information which was established by the private investigator, except for the ultimate fact. The facts he testified to were that he conducted a separate and independent test himself, the results of which prompted his opinion that the fingerprint on the car was defendant’s. Proof that a second test, by the defendant’s witness, corroborated and so enhanced the credibility of the first test results, reached by the State’s witness, is not proof of the same facts.

The fact of concern in Frink v. State, 177 Ga. App. 604, 606 (1) (340 SE2d 631) (1986) was that the child was not in the home. The court held that since that fact was elicited by defendant from other witnesses several times, it was harmless even if error for the State to elicit it indirectly from Mrs. Frink. The rule did apply there because it related to various ways and instances in which the same fact was made a part of the composition of evidence.


text:
    A89A0338.
    BOWLES et al. v. LOVETT et al.
    (379 SE2d 805)
   Banke, Presiding Judge.

The appellants sued the appellees to obtain specific performance and damages for breach of a real estate contract. The appellees counterclaimed, seeking the return of an earnest money deposit and certain other damages, including attorney fees. On August 31, 1987, the trial court dismissed the appellants’ claims, based on a determination that the contract upon which they had sued was unenforceable. Thereafter, on February 23, 1988, the court granted partial summary judgment to the appellees with respect to their claim for the return of the earnest money deposit. On April 7, 1988, the appellees dismissed the remaining portion of their counterclaim; and on May 31, 1988, the trial court granted a motion by the appellees for an award of attorney fees pursuant to OCGA § 9-15-14. On June 29, 1988, the appellants filed a notice of appeal to the Georgia Supreme Court. The Supreme Coürt transferred the case to this court, concluding that it lacked jurisdiction because there had been no timely appeal from the “final order dismissing the entire complaint, including the specific-performance claim and, by implication, the damages claim . . .” Bowles v. Lovett, 258 Ga. 636 (374 SE2d 202) (1988). Held:

Decided March 8, 1989.

James F. Findlay, for appellants.

Jay M. Sawilowsky, Lansing B. Lee, Jr., for appellees.

1. The order of May 31, 1988, awarding attorney fees to the appellees pursuant to OCGA § 9-15-14, could not be appealed directly but was required to be preceded by an application for permission to appeal. See OCGA § 5-6-35 (a) (10); Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987). Inasmuch as the orders dismissing the complaint and granting partial summary judgment to the appellees on their counterclaim became final on the same date (i.e., the date the appellees dismissed the remaining portions of their counterclaim) and inasmuch as the Supreme Court has already ruled that the appeal from the former order was untimely, it follows that the entire appeal must be dismissed for lack of jurisdiction. See OCGA § 5-6-48 (b).

2. The appellees’ motion for the imposition of damages against the appellants pursuant to OCGA § 5-6-6 for filing a frivolous appeal is denied, inasmuch as that Code section does not authorize damages where the appeal is dismissed for lack of jurisdiction. See Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (360 SE2d 656) (1987).

Appeal dismissed.

Sognier and Pope, JJ., concur.


text:
    77229.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. SAXON et al.
    (379 SE2d 577)
   Beasley, Judge.

Southern Guaranty Insurance Company, plaintiff in an action for declaratory judgment, appeals from an order granting defendants Joel and Alan Saxon’s and Rhonda Lamb’s motions for summary judgment.

On August 12, 1987, Alan Saxon was driving a truck owned by his father Joel and insured under a Southern Guaranty commercial automobile liability policy. Rhonda, a fifteen-year-old passenger, was being sought by the Department of Social Services. When a police vehicle pulled behind them and its blue light was activated, she exclaimed: “Please don’t let them get me.” They just “took off,” said Alan, and a chase at speeds of “seventy-five, eighty [m.p.h.], somewhere in there” ensued, which lasted for around twenty minutes and covered between twenty and twenty-five miles. While traveling over a dirt road, the truck struck a ditch and overturned, injuring Alan and Rhonda.

Rhonda sued Alan in tort to recover damages for her personal injuries. Southern Guaranty brought a declaratory judgment action to determine whether it would be required to provide a defense for Alan and to pay any damages for which he might become legally obligated. The issue presented is whether the evidence conclusively establishes that the policy exclusion is not applicable, so that there is liability coverage.

Joel Saxon’s policy recited that Southern Guaranty would pay on behalf of its insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage caused by an “occurrence” and arising out of the ownership, maintenance or use of the owned automobile. “Occurrence” is defined in the policy as an “accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Compare American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 733 (3a) (258 SE2d 540) (1979); Thrift-Mart v. Commercial Union &c. Cos., 154 Ga. App. 344, 346 (1) (268 SE2d 397) (1980).

We are confronted with the limited questions of construction of the provision and whether it is shown as a matter of law that Alan neither expected nor intended an injurious result from his acts.

In applying the rules of construction insurance policy exclusions are construed most strongly against the insurer and in favor of providing the indemnity sought. State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 379 (364 SE2d 62) (1987), aff’d 258 Ga. 276 (1988). “An accident refers to an unexpected happening rather than one occurring through intention or design.” Travelers Indem. Co. v. Hood, 110 Ga. App. 855, 857 (140 SE2d 68) (1964). “[A]cts could not be unexpected unless they were accidental.” Thrift-Mart, supra at 346. Accord Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 812 (324 SE2d 510) (1984).

The provision in this case was instrumental in Ga. Farm Bureau &c. Ins. Co. v. Ray, 148 Ga. App. 85, 86 (251 SE2d 34) (1978). It was held that this language is plain, unambiguous and capable of only one reasonable interpretation. “[I]n such instances the language used must be afforded its literal meaning and plain ordinary words must be given their usual significance.” The policy provision “will not cover those damages caused intentionally by any insured.” Ga. Farm &c. Ins. Co., supra at 86.

This was followed in Continental Cas. Co. v. Parker, 161 Ga. App. 614, 616 (1) (288 SE2d 776) (1982). We are in agreement regarding the meaning, but the facts here yield a different result. While the evidence in Continental was in conflict, leaving for a jury whether the insured’s acts “were intentional and thus excluded by the policy,” id. at 617, here the evidence is one-sided.

Alan testified by deposition that he had no intention of injuring anyone, including himself, and that he had no fear of wrecking the truck or thought that it might occur as a result of his driving. A wreck ensuing never crossed his mind. His sole aim was to evade capture by the police.

The policy clearly envisions a subjective test as to the insured’s intention. Specific intent is called for by the policy. It can be a partial intent, i.e., combined with other intents, and even a minor intent in the composite of intents of the actor. But there cannot be an absence of that intent or there will be coverage. Insured does not necessarily have to prove a different specific intent, just an absence of the affirmative intent to injure, to be covered. Of course, it is easiest to convince of this absence by showing the presence of a different intent, ignoring the possibility of multiple intents.

Intent may be manifested by objective factors. Alan denied any intent to cause injury. The objective factors only show that he intended to avoid apprehension by the police and in doing so he violated the law.

Insurer does not focus on the evidence, which it must to avoid the summary judgment, since evidence of intention is what the whole controversy is about. Insurer must show there is a question of fact about insured’s intent. It must show that insured has not conclusively established as fact that he had no intent or expectation to injure by his act of driving as he did. But the insurer put no wedge in this testimony. That is what it would have to do to avoid the summary judgment. This case is dissimilar from Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988), for there this court held that the natural, inevitable consequences of defendant’s actions were injury to the victim and he was presumed to have acted intentionally.

This is a stronger case than Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), because, unlike the policy in that case, there is no specific exclusion of coverage while insured is “attempting to avoid apprehension or arrest.”

Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (2) (291 SE2d 410) (1982), is authority for the proposition that there is a distinction between intentional acts and the intentional consequences or results. See State Auto. Mut. Ins. Co. v. Thomson, 180 Ga. App. 90 (348 SE2d 507) (1986). “[A]n exclusion as to injury caused intentionally by the insured does not exclude coverage where there is an intentional act but not an intentionally caused injury.” 7 AmJur2d 695, Auto. Ins., § 191. Here the act might result in injury but this of necessity does not have to occur. “ ‘[T]he mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ ” Colonial Penn Ins. Co. v. Hart, supra at 335 (quoting Prosser, Law of Torts). If, without more, this law violation constitutes affirmative evidence that it was not an accident but expected or intended despite the protestations of the insured, then any violation of traffic laws would have the “unintended” result of furnishing prima facie evidence excluding coverage. Such a construction of the provision would depart from what must be the reasonable intent of the parties, even without considering the interpretative practice which favors an insured and discriminates against exclusions of coverage. This court has held that injuries arising from illegal racing on the highway are not excluded, in Travelers Indem. Co. v. Hood, supra at 859: “[T]he fact that an injury for the purposes of criminal or tort, law may be held constructively intentional does not remove it from the category of injury ‘caused by accident’ in the terms of an insurance contract.” See 7 AmJur2d 698-699, Auto. Ins., § 193.

Where, as here, the only evidence of the insured’s subjective intent is depositional testimony by the insured that the wreck and the bodily injuries which resulted from his driving in an attempt to elude the police were not intended, the exclusion does not apply, as a matter of law. Compare Brown v. St. Paul Fire &c. Ins. Co., 177 Ga. App. 215 (338 SE2d 721) (1985), where the evidence as to one injured party conclusively established the intent which excluded coverage but as to another injured party raised a jury question. Our decision is also in conformity with the reasoning in State Auto. Mut. Ins. Co. v. Thomson, supra, where the insurer was not entitled to summary judgment because the subjective intent of the insured when he acted was devoid of intention or expectation that property damage would result. The injuries received in this case, on the other hand, were the result of a covered “occurrence.” The grant of summary judgment to defendants was not error.

Decided February 21, 1989

Rehearing denied March 9, 1989.

Wetzel, Shay) & Quinn, Michael L. Wetzel, John R. Shaw, Jr., for appellant.

Heard, Leverett & Phelps, E. Freeman Leverett, for appellees.

We are holding, in effect, that since there is no evidence of record to controvert the insured’s testimony that he had no intention or expectation of injuring his passenger, the appellant insurer is obligated to defend the insured in the passenger’s personal injury action. Whether that personal injury action would be able to survive a defense motion for summary judgment or directed verdict is an entirely different issue and is not before us in this appeal.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Pope, Judge.

text:
    77576.
    LIVESAY v. HILLEY.
    (379 SE2d 557)
   Pope, Judge.

We granted Tina Hilley Livesay’s application to appeal an order of the Superior Court of Madison County changing custody of the parties’ three-year-old daughter to the natural father.

The record shows that the parties were divorced on October 7, 1987 and custody of the minor child was awarded to the mother. On November 20, 1987, the father filed a petition seeking a change in custody contending there had been a material change in circumstances affecting the welfare of the child based on the assertion that the mother was living with a man to whom she was not married. Although appellant did not dispute the fact of cohabitation, and admitted that Tommy Livesay began living with her and the minor child in late October, she contended that such relationship was not meretricious because she and Livesay had entered into a common-law marriage. The appellant and Livesay were subsequently married in a ceremony held on December 19, 1987.

On January 5, 1988, a hearing was held on appellee-father’s change of custody petition. At that hearing appellant presented witnesses who testified that around late October or early November the parties introduced themselves as common-law husband and wife. Appellant testified that she and Livesay did not have a ceremonial marriage when they began living together in October “because we wanted to make sure [the minor child] would adjust before we jumped in or pushed her into something that she was not ready for or that we were not ready for . . . .”

Following the hearing the superior court entered an order finding that the parties had not entered into a common-law marriage when they began cohabiting in late October. The court also found that the minor child had been adversely affected by these living arrangements and transferred custody to the father. The court denied the appellant’s motion for new trial and we granted her application for discretionary appeal.

1. Appellant first enumerates as error the trial court’s finding that the ceremonial marriage subsequent to the common-law marriage precluded the validity of the latter. Although a letter attached to the court’s order suggests that it questioned the necessity of such a ceremony in light of the appellant’s contention that she was married pursuant to the common law, in its order the court relied not on this factor but on appellant’s testimony that she and Livesay wanted to ensure that the child would adjust to having Livesay in the home. Based on this testimony the court found “that at the time [appellant and Tommy Livesay] began living together [they] did not have a present intention to be married, but rather the possibility of marriage in the future based upon whether or not the minor child, . . . was comfortable with Mr. Livesay.” We agree with the trial court that the evidence, specifically the testimony of the mother, supports the trial court’s conclusion that at the time they began living together appellant and Livesay lacked the requisite present intent to marry and hence a valid common-law marriage was not shown. See, e.g., Peacock v. Peacock, 196 Ga. 441 (26 SE2d 608) (1943). Consequently, this enumeration is without merit.

2, It does not necessarily follow, however, that the trial court correctly concluded that a change of custody was warranted under the facts of this case. “ ‘The award of custody of a child of the parties in a divorce decree is conclusive unless there have been subsequently to the decree new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child. (Cits.) Though the trial judge is given a discretion, he is restricted to the evidence and unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)’ [Cit.] (Emphasis supplied.)” Evans v. Stowe, 181 Ga. App. 489, 491 (352 SE2d 811) (1987).

In the case at bar the period of cohabitation was relatively brief. However, the trial court found “that the minor child, . . . has been adversely affected by the living arrangement between the [appellant] and Mr. Livesay.” In support of this finding, the trial court stated that “[the appellee] testified without contradiction that the child is glad to see him when he picks her up for visitation and cries when he takes her back at the end of his visitation period.” The record does not indicate, however, that this behavior was anything other than normal happiness and natural distress at seeing and subsequently parting with the non-custodial parent. In sum, the evidence does not show that this behavior was in anyway related to Livesay residing in the home. “The Court [also found] that the [appellant] interfered on one occasion with the visitation rights of the [appellee] and . . . that this problem with visitation occurred on the first weekend after the [appellant] and Mr. Livesay were married.” Again, however, the record does not disclose that this incident had an adverse effect on the child. Moreover, although the trial court characterized this incident as interference with the appellee’s visitation rights, the record shows that, although the exchange became quite heated, the interference was in fact nothing more than a disagreement between the parties regarding when the appellee had to return the child to the mother when a holiday visitation coincided with a regular visitation weekend.

Decided February 15, 1989

Rehearing denied March 9, 1989

Hudson & Montgomery, James Hudson, for appellant.

B. Lane Fitzpatrick, for appellee.

“The evidence at the hearing that appears in the record as to a change in the circumstances and conditions subsequent to the divorce decree relates primarily to the parents .... The evidence fails to show any change in the [mother’s] fitness or ability to care for the child. There being no evidence showing a material change of circumstances or conditions affecting the welfare of the child, the court [abused its discretion] in awarding custody to the [father]. [Cits.]” Young v. Young, 216 Ga. 521, 522-23 (118 SE2d 82) (1961).

Judgment reversed.

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


text:
    77680.
    77764.
    PATTERSON v. ROSSER FABRAP INTERNATIONAL, INC. SCOTT v. ROSSER FABRAP INTERNATIONAL, INC.
    (379 SE2d 787)
   Pope, Judge.

Appellants Patterson and Scott were injured on February 2, 1984, when the 50-foot metal scaffolding they were using in connection with the renovation of a building came into contact with a high-voltage electric power line. On January 30, 1986, shortly before the statute of limitation ran on their negligence actions, appellants filed their complaints for damages against several parties. Over the next several weeks, they amended their complaints several times, adding other parties involved in either the renovation of the building or in the manufacture of equipment used in the project. One of the parties named was the engineering firm of Rosser White Hobbs Davidson McClelland Kelly, Inc. (hereinafter “Rosser”) which, appellants contended, was employed as the architect on the project.

Rosser was served on February 13, 1986; it timely filed its answers, denying the allegations of appellants’ complaints, on March 3, 1986. On April 23, 1987 Rosser filed its motions for summary judgment, together with supporting affidavits, in which it contended that it was not employed as the architect on the project and owed appellants no duty of care with regard to the scaffolding. Rosser also averred that Fabrap Architects, Inc. was the architect on the project. The record shows that in January 1987 Rosser merged with Fabrap Architects, Inc. (hereinafter “Fabrap”); the firm then became known as Rosser Fabrap International, Inc. (hereinafter “Rosser Fabrap”). On May 31, 1987, appellants filed their dismissals without prejudice as to defendant Rosser.

On November 16,1987, appellants filed their third amended complaint naming Rosser Fabrap, as the successor corporation to Fabrap, as a party defendant. Rosser Fabrap filed its answer on December 8, 1987, admitting that Fabrap was employed as the architect on the project, but raising the defense that appellants’ claims against Fabrap were barred by the applicable statute of limitation. Rosser Fabrap also filed motions for summary judgment based on this defense, which the trial court granted on June 2, 1988.

Appellants argue that since they were entitled to “renew” their actions against Rosser within six months of the dismissal of their original complaints against it pursuant to OCGA § 9-2-61, that they were then entitled to file their renewal actions against Rosser Fabrap as the successor corporation, to Rosser (see OCGA § 14-2-216 (b)), and the trial court erred in concluding that Rosser Fabrap was entitled to summary judgment based on the expiration of the period of limitation.

“To be a good ‘renewal’ of an original suit, so as to suspend the running of the statute of [limitation] . . . the new petition must be substantially the same both as .to the cause of action and as to the essential parties. [Cits.] The rule requiring substantial identity of essential parties has been held not to be violated: where a party in a later case is the successor trustee, or other representative, of an original party who occupied the same position as plaintiff or defendant; . . .” (Emphasis supplied.) Sheldon & Co. v. Emory Univ., 184 Ga. 440 (1) (191 SE 497) (1937). Appellants’ renewal actions in the cases at bar were filed against Rosser Fabrap as the successor corporation to Fabrap Architects, not the engineering firm of Rosser White Hobbs Davidson McClelland Kelly, Inc., the original party defendant. “[OCGA § 11-2-61] may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued. [Cits.]” Cornwell v. Williams Bros. &c. Co., 139 Ga. App. 773, 775 (229 SE2d 551) (1976). See also Wagner v. Casey, 169 Ga. App. 500 (2) (313 SE2d 756) (1984). Inasmuch as Fabrap Architects was never a party to the original suit, appellants cannot maintain their “renewal” actions against it in light of the expiration of the two-year statute of limitation applicable to actions of this kind. Consequently, the trial court did not err in granting Rosser Fabrap’s motions for summary judgment.

Decided February 27, 1989

Rehearing denied March 9, 1989

George P. Graves, E. Graydon Shuford, for appellants.

J. Michael Welch, Larry S. McReynolds, Charles G. Morris, for appellee.

Judgments affirmed.

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


text:
    77832.
    EVERGREEN PROPERTIES v. STAFFORD.
    (379 SE2d 582)
   Pope, Judge.

Appellant-lessor filed this dispossessory action, alleging that appellee-lessee was holding over pursuant to a five-year commercial lease agreement. The lease contained a special stipulation, attached as an addendum to the agreement, which gave the lessee the option to renew the lease for an additional five-year term at an increased rental rate. The jury returned a verdict for the lessee, on the theory that he had effectively exercised his option to renew the lease. The lessor appeals from the denial of its motion for directed verdict and its motion for judgment notwithstanding the verdict.

“ ‘(T)he standards for granting a motion for judgment n.o.v. are the same as those governing the direction of a verdict. (Cit.) “Thus, the motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded ....’” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (256 SE2d 916) (1979).” (Punctuation omitted.) Wipo, Inc. v. Cook, 187 Ga. App. 7, 8 (369 SE2d 306) (1988).

In order to exercise the option to renew, the lessee was required to “give lessor a written sixty (60) day notice prior to the expiration of the term indicating lessee’s intention to renew.” Defendant testified at trial that he timely mailed the notice to the lessor’s rental agent. The rental agent testified that he did not receive the notice and the record shows that it was sent to the wrong address. Although the lessee testified that the notice was sent certified mail, return receipt requested, he could not locate the return receipt showing that it had actually been received by the addressee.

Decided February 22, 1989

Rehearing denied March 9, 1989

McLain & Merritt, Stephen V. Kern, Neil S. Morrisroe, for appellant.

Heyman & Sizemore, Michael R. Hurst, for appellee.

“In Musgrove v. Long, [248 Ga. 902 (287 SE2d 23) (1982) our supreme court] held that the exércise of an option [to renew] is effective only upon receipt of notice of its exercise.” Anthony v. Ausburn, 254 Ga. 472 (330 SE2d 724) (1985). Inasmuch as the evidence presented by the lessor that neither it nor its agent received notice of the lessee’s intention to exercise the option is uncontroverted by direct evidence, we agree with the lessor that, as a matter of law, the lease was not renewed. Accord Turman v. MacLachlan, 257 Ga. 69 (354 SE2d 825) (1987). Consequently, the trial court erred in failing to grant the lessor’s motion for judgment notwithstanding the verdict and is hereby directed to enter judgment for the lessor.

Judgment reversed.

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

       We therefore find it unnecessary to consider the lessor’s contention that the attempted notice was ineffective because it was sent to the rental agent and not the lessor.


author: Benham, Judge.

text:
    77561.
    HICKS v. MAULDIN.
    (379 SE2d 806)
   Benham, Judge.

Appellant, acting as an individual and in her capacity as administratrix of the estates of her deceased husband and of her deceased infant daughter, filed a medical malpractice action against appellee Mauldin, a physician who treated appellant’s daughter the day the child died. A jury rendered a verdict in favor of appellee, and appellant brings this appeal from the judgment entered thereon.

1. Appellant first enumerates as error the trial court’s admission of testimony concerning the propensity of the late Mr. Hicks to consume alcohol.

Appellant alleged that appellee’s negligence resulted in the death of her 5- lh -month-old infant daughter. The infant had a blood alcohol level of .12 at the time of her death, and the expert witnesses were in agreement that the child’s blood alcohol level may have contributed to her death. The evidence that Mr. Hicks was an alcoholic who at times kept liquor in places accessible to his children was relevant to the issue of how the child’s blood alcohol content reached a level that might have contributed to her death. “Any evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. [Cit.]” Kelly v. Floor Bazaar, 153 Ga. App. 163, 165 (264 SE2d 697) (1980).

2. Appellant also contests the trial court’s ruling permitting testimony that appellant and the late Mr. Hicks had previously lost an infant child to Sudden Infant Death Syndrome (SIDS), and that the siblings of a SIDS child have an increased risk of a SIDS death. Inasmuch as appellant had alleged that appellee’s negligence had caused the child’s death, and several experts opined that the child’s death could have been a SIDS death, appellee was entitled to attempt to prove that the child died from a cause other than appellee’s treatment of her. See Kelly v. Floor Bazaar, supra.

3. During his examination of the investigating police officer, appellee’s counsel asked the witness his impression of the general living conditions of the Hicks family. Appellant maintains that evidence of her family’s financial condition is not relevant in a medical malpractice case. However, appellant’s counsel had previously introduced into the record the testimony of the late Mr. Hicks concerning Mr. Hicks’ job and his remuneration therefor. Appellant cannot complain of the admission of evidence on a subject which she first introduced. “It was not error to admit this testimony, as similar evidence of other witnesses was admitted without objection. [Cit.]” Hammond v. Paul, 249 Ga. 241 (2) (290 SE2d 54) (1982).

4. Appellant questions whether an osteopathic pediatrician, called by appellee, was competent to testify as an expert in a medical malpractice action filed against an allopathic general practitioner.

“The general rule is that a member of a school of practice other than that to which the defendant belongs is not competent to testify as an expert in a [medical] malpractice case. [Cit.] . . . [However], [w]here there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify. [Cits.]” Sandford v. Howard, 161 Ga. App. 495, 497 (288 SE2d 739) (1982). See also Bethea v. Smith, 176 Ga. App. 467, 468 (336 SE2d 295) (1985).

Decided March 9, 1989.

William N. Robbins, for appellant.

Allen & Ballard, William L. Ballard, E. Jane Simpson, for appellee.

Appellant alleged that appellee had been negligent in failing to diagnose her infant daughter as being dehydrated. The osteopathic pediatrician testified there was absolutely no difference in the way an allopathic physician and an osteopath would treat a dehydrated infant. In light of such evidence, the osteopathic pediatrician was competent to testify. Sandford v. Howard, supra. Compare Bethea v. Smith, supra.

Judgment affirmed.

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


text:
    77740.
    MEADOWS v. THE STATE.
    (380 SE2d 326)
   Carley, Chief Judge.

Appellant was convicted of criminal solicitation to murder his wife. He appeals from the judgment of conviction and sentence entered on the jury verdict.

1. The trial court’s failure to give appellant’s requested charge on the defense of entrapment is enumerated as error.

The State’s evidence showed that an informant apprised the Georgia Bureau of Investigation (GBI) that appellant had requested his assistance in arranging for a hired killer to murder appellant’s wife. During a subsequent meeting between the informant and a GBI agent, the informant telephoned appellant and told him that he had found a hit man, but that the hit man insisted upon a personal meeting before accepting a contract to murder appellant’s wife. Appellant agreed to the meeting and, within the hour, he met with a GBI agent posing as the hit man. During the course of this meeting, which was secretly taped, appellant agreed to pay the GBI agent $12,000 if his wife was murdered on that same day. Appellant assured the GBI agent that his wife would be at home and he gave the GBI agent a cash deposit of $1,000, a key to the house, and a map. Appellant also discussed details of the way in which the crime was to be committed, indicating that he “need[ed] it to look like a burglary or rape or whatever.” Appellant also made arrangements that the balance of $11,000 would be paid within 60 days. At the close of the conversation, appellant was placed under arrest.

Appellant testified that the idea of having a hit man murder his wife was first suggested by the informant. He did not, however, give any additional testimony indicating how he was “induced” into following that suggestion due to the employment of undue persuasion, incitement, or deceitful means by either the informant or the GBI agent who taped appellant’s solicitation to commit murder. “ ‘Entrapment exists where the idea and the intention to commit the act originate with a police officer, who, by undue persuasion and deceitful means, induces the defendant to violate the law. But there is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.’ [Cit.]” Huskey v. State, 139 Ga. App. 752, 753 (1) (229 SE2d 547) (1976). “Appellant’s testimony does not show he was induced, by undue persuasion, or deceitful means, in an overall design of law enforcement people, to do what he otherwise had no predisposition to do and would not have done. [Cits.] Appellant’s testimony falls short of evincing those circumstances which have been found to raise the entrapment defense. [Cits.]” Jones v. State, 154 Ga. App. 21, 25 (2) (267 SE2d 323) (1980).

Moreover, appellant did not admit commission of the crime. According to him, he never intended that the hit man actually murder his wife but, contrary to the taped conversation, he actually intended that the hit man only burglarize his house and steal insured items. Appellant testified that, to achieve this, he planned to call his wife and have her leave the house before the hit man arrived. Thus, appellant, in effect, admitted the crime of solicitation of burglary but denied the commission of the crime of solicitation of murder. “The [S]tate’s evidence raised no suggestion of entrapment, and the appellant was consequently not entitled to a charge on entrapment, absent an admission of guilt. [Cits.] No such admission was forthcoming, the appellant maintaining instead that he gave [the hit man] the [$1,000] only to induce [the hit man] to [commit burglary] and with no intention of actually procuring [his wife’s] death or any actual belief that [the hit man] would go through with the proposed plan.” Norris v. State, 176 Ga. App. 164, 167 (5) (335 SE2d 611) (1985).

The defense of entrapment was not put at issue by the State’s evidence or by the appellant’s testimony. It follows that the trial court did not err in refusing to instruct the jury on a defense not adjusted to the evidence. See generally Busener v. State, 188 Ga. App. 392 (373 SE2d 81) (1988).

2. The informant was called as a rebuttal witness for the State. The trial court sustained several of the State’s objections to questions which appellant propounded to the informant on cross-examination. These evidentiary rulings are enumerated as error.

Appellant urges, in connection with this enumeration, that he was denied the right to a thorough and sifting cross-examination of the witness. However, the record shows that appellant was afforded the opportunity to conduct a thorough and sifting cross-examination of the informant and that he was in no way erroneously precluded from pursuit of a relevant line of inquiry. “The scope of cross-examination is not unlimited and the extent thereof lies within the sound discretion of the court. [Cit.] An irrelevant or immaterial line of inquiry may be curtailed without violence to a defendant’s permissible scope of cross-examination. [Cit.] Under the circumstances of this case, we find no abuse of discretion by the trial court in its limitation of defendant’s cross-examination. . . .” Deyton v. State, 182 Ga. App. 73, 74 (3) (354 SE2d 625) (1987). See also Hamilton v. State, 184 Ga. App. 143, 145 (361 SE2d 30) (1987); McClure v. State, 163 Ga. App. 236, 238 (4) (293 SE2d 496) (1982).

Decided March 9, 1989.

R. Michael Whaley, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Charles W. Smegal, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77747.
    NABISCO BRANDS, INC. et al. v. HUGGINS.
    (379 SE2d 630)
   Pope, Judge.

Appellee-claimant filed a workers’ compensation claim contending that she was suffering from an occupational disease as a result of her exposure to flour dust while working for appellant-employer. After the initial hearing, the Administrative Law Judge (ALJ) found that the medical questions relating to the claimant’s claim were in controversy and issued an interlocutory order referring the claim to the medical board as provided by OCGA § 34-9-311.

The medical board issued its report on September 4, 1986, finding no evidence to substantiate the claimant’s contention that her condition or lost time was related to her exposure to flour dust. On September 9, 1986, claimant filed her notice of appeal, interrogatories and request for oral examination of the members of the medical board pursuant to OCGA § 34-9-312 (e). The medical board reheard the case on December 11, 1986. On December 31, 1986, the medical board issued a second report, reversing its previous decision, and finding that claimant had been out of work from October 6, 1984 to January 22, 1985 and that her disability during this period related to her exposure to flour dust. On January 15, 1987, the employer filed its notice of appeal to the medical board’s December 31, 1986 decision. The Secretary-Treasurer of the State Board of Workers’ Compensation acknowledged receipt of the employer’s notice of appeal, but notified the employer that the notice would not be forwarded to the medical board “since this case has been heard by the [mjedical [b]oard twice.” The case was then returned to the ALJ for the issuance of an award based on the findings of the medical board.

On February 5, 1987, the ALJ issued her findings that the claimant had suffered an occupational disease and awarded claimant income benefits and medical expenses. The full board adopted the award of the ALJ. The employer appealed to the superior court, challenging the finding that the claimant had suffered an occupational disease and also contending that it was denied its right to appeal the decision of the medical board pursuant to OCGA § 34-9-312 (c). The superior court affirmed the award of the board. As to the employer’s contention that it had been denied its right of appeal to the medical board, the court found that “[notwithstanding that there is no express denial of [the employer’s] appeal request in the record, it is clear to this court that the [m]edical [b]oard’s silence on this issue is considered to be a denial of [the] appeal, and not an indication that the request was never considered.” We granted the employer’s application for discretionary review.

1. We agree with the employer that the superior court incorrectly concluded that the medical board considered and rejected its notice of appeal. Contrary to the court’s findings, the record clearly shows that the employer’s notice of appeal was never forwarded to the medical board for its consideration, but that instead the case was returned to the ALJ for entry of an award based on the medical board’s findings.

The question remains, however, as to whether the employer had the right to appeal the medical board’s decision pursuant to OCGA § 34-9-312 (e). That section, before it was repealed, provided that: “Either party to the dispute may, within 30 days from the date the final report or decision is mailed, but not thereafter, appeal from the decision of the medical board in the following manner: the party conceiving himself to be aggrieved may file in writing with the medical board an appeal from the findings or decision, stating generally the grounds thereof and why such aggrieved party believes the decision was erroneous. The appeal may set out in affidavit form additional medical evidence; and the aggrieved party in his appeal may further propound to the members of the medical board, or any of them, or to any of the physicians who testified at the original examination, questions pertaining to medical evidence. The medical board shall see that the interrogatories so propounded are answered under oath and made a part of the final decision on appeal unless relieved from answering by a decision of the State Board of Workers’ Compensation; or the aggrieved party in this appeal, on proper notice and request to the medical board, may, in like manner, orally examine the members of the medical board or any of them at such time and place as may be designated by it. The medical board shall have the right, in its discretion, upon such appeal, to reassign the matter for another or additional examination or for the taking of such additional evidence as it may deem proper.” (Emphasis supplied.)

In our view the “final report or decision” in the case at hand was the decision of the medical board dated December 31, 1986. It is that decision that formed the basis of the ALJ’s award, which in turn was upheld by the full board and the superior court. As the aggrieved party to that award, the employer had the right to propound interrogatories or orally examine the members of the board, rights it did not enjoy when the claimant appealed the medical board’s September 4, 1986 decision, and the medical board, unless relieved by the State Board of Workers’ Compensation, was required to answer the interrogatories under oath, said answers to be made a part of the final decision. “The purpose of the requirement that the Medical Board incorporate the interrogatories into its final decision is ‘to enable the losing party to intelligently prepare an appeal and to enable the court to intelligently review such appeal.’ [Cits.]” Miller v. Travelers Ins. Co., 115 Ga. App. 718, 719 (155 SE2d 724) (1967). Since the medical board in the case at bar reversed its earlier findings that the claimant’s condition was not the result of her exposure to flour dust, and inasmuch as the issue of whether the claimant was suffering an occupational disease was apparently very much in controversy, examination of the members of the medical board by interrogatories as to the basis of the December 31, 1986 decision, including what evidence prompted it to change its report, would have greatly benefited both the losing party and the reviewing courts. Consequently, this case must be remanded to the State Board of Workers’ Compensation with direction to vacate its award and refer the claim to the medical board for consideration of the employer’s appeal pursuant to OCGA § 34-9-312 (c).

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

3. The claimant’s request for penalties pursuant to OCGA § 5-6-6 is hereby denied.

Judgment reversed and case remanded with direction.

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

Decided March 9, 1989.

Saveli & Williams, Mark S. Gannon, Benjamin H. Terry, for appellants.

Richard W. Hendrix, for appellee.

       Effective July 1,1987, the provisions relating to the medical board were repealed and a new procedure adopted in lieu thereof. Ga. L. 1987, p. 1474, § 8. However, the new provisions apply only to occupational diseases diagnosed after the July 1, 1987, effective date of the statute. Consequently, appellant’s contentions must be decided under the prior provisions.