text:
    76511.
    HAWLEY v. THE STATE.
    (369 SE2d 340)
   Deen, Presiding Judge.

Appellant Hawley entered a guilty plea to shoplifting charges in the Fulton County Superior Court. Meanwhile, he was supposed to be serving a sentence in Canada and was wanted in California on Federal charges. He was ultimately convicted and sentenced to a prison term on the latter. He escaped from a Georgia jail and then sought to have the Georgia sentence made concurrent with the Federal sentence imposed in California, and to be given credit for the time served in Georgia. Georgia filed a detainer in California and declined (for technical reasons regarding the Canadian sentence and for the reason that at the time of his Georgia conviction he had not yet been convicted and sentenced in California) to adjust the Georgia sentence to run concurrently with either of the other sentences. He contends, inter alia, that his guilty plea was entered on the express condition that the Georgia sentence would be concurrent, and appeals from the denial of motions filed in his attempt to achieve the desired results regarding the sentences. Held:

Decided May 4, 1988.

Robert B. Hawley, pro se.

Lewis R. Slaton, District Attorney, John G. Isom, Assistant District Attorney, for appellee.

Appellant contends that the Fulton County Superior Court erred by, inter alia, imposing a sentence that was unlawful, vague, “conditional,” and based on “an unlawfully induced plea” and “a violated plea agreement”; by “preempting” his right to withdraw his guilty plea; by allegedly imposing sentence in his absence; and by denying him effective assistance of counsel.

Our examination of the record reveals that there is little, if any, factual support for appellant’s allegations. The alleged errors which he enumerates turn out, on close inspection, to be merely appellant’s interpretation of what occurred, and of the legal significance thereof. We find, for example, that the Georgia sentence was never “conditional” or “vague,” as appellant asserts. We further find that the courts made a genuine effort to accommodate appellant by permitting, in so far as it lay within their means, his Georgia sentence to run concurrently with at least the Canadian sentence. The fact that Georgia is not a signatory to the treaty which allows such concurrency between Canada and certain states in this country was a legal obstacle not within the power of the Georgia courts to overcome. Appellant demonstrates either a remarkable myopia or a singular deficiency in gratitude towards Georgia officials. In the last analysis, there appears to be no basis for reversal of the judgment below.

Judgment affirmed.

Sognier, J., concurs. Car ley, J., concurs in the judgment only.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75933.
    TUTTLE v. AMERICA FIRST INSURANCE COMPANY.
    (369 SE2d 342)
   Beasley, Judge.

Tuttle appeals from the grant of plaintiff America First Insurance Company’s motion for summary judgment in an action for declaratory judgment which sought a determination of coverage under a homeowner’s policy issued to Wayne Simpson.

Cheryl Simpson committed suicide in an Atlanta hotel by shooting herself while either leaning against or standing next to the railing on the eighth floor. She fell into the atrium, injuring Tuttle. After he sued her estate, America First, which provided liability insurance to her father Wayne Simpson, brought the instant action. It set forth two grounds which the insurer urged negated coverage: 1) that Ms. Simpson was not a resident of Wayne Simpson’s household because she was twenty-six years old and lived in Charleston, South Carolina; 2) that her act was intentional and thus excluded by a provision that coverage did not apply to bodily injury “which is expected or intended by the insured.”

After discovery, America First moved for summary judgment in reliance on the record made and particularly on the affidavit of Wayne Simpson that “my daughter . . . has not been a resident of my household for over a year and three months prior to her death.” It also urged that the proof showed Ms. Simpson intended to fall off the balcony and the injuries resulting to Tuttle were therefore intentional within the meaning of the policy exclusion. The trial court granted summary judgment to America First on the basis that Ms. Simpson lived in Charleston and was not a resident of the Simpson household in Morrow, Georgia. The ruling was predicated on Simpson’s affidavit and the fact that Ms. Simpson had a South Carolina driver’s license.

The crucial issue is whether Ms. Simpson was covered by the policy provision which stated that “ ‘insured’ means you and residents of your household who are: a. your relatives.” Tuttle argues that the father’s affirmance of non-residency is not vital because the daughter’s intent controls as to her residency.

There being no contrary evidence, the father’s testimony is controlling. As an adult, Ms. Simpson could only reside at her parent’s home with their permission and consent. After majority there is no parental obligation to maintain, protect or support a child. OCGA § 19-7-2; Newton v. Newton, 222 Ga. 175, 176 (2) (149 SE2d 128) (1966); Crane v. Crane, 225 Ga. 605, 606 (1) (170 SE2d 392) (1969). Ms. Simpson’s intent to live there is irrelevant. That is not to say that she might well have intended to reside in Georgia and a showing to that effect would be decisive as to whether she was a Georgia resident. Haggard v. Graham, 142 Ga. App. 498 (236 SE2d 92) (1977). However, the policy language involves solely whether she was a resident of the Morrow household. Because she could only reside there if allowed to, the testimony of her father that she had not been a resident there for “one year and three months prior to her death” was conclusive. Compare Grange Mut. Cas. Co. v. Brinkley, 182 Ga. App. 273 (355 SE2d 767) (1987).

Decided May 5, 1988.

Kevin J. Rodgers, for appellant.

Matthew T. Berry, John V. Burch, for appellee.

Summary judgment was properly granted to the insurer.

Judgment affirmed.

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


text:
    76068.
    RAMOS v. VOURTSANIS.
    (369 SE2d 344)
   Beasley, Judge.

Vourtsanis brought an action for medical negligence against Dr. Stephens and Emory University, Inc. In the course of the litigation, plaintiff’s counsel deposed Dr. Ramos who billed plaintiff $1,000 as deposition fees. Prior to taking the deposition on August 12, 1986, plaintiff had been notified as to the doctor’s fee schedule. Correspondence ensued evidencing a dispute about the matter during October through December of that year, and the bill was not paid. The parties to the negligence action settled and on March 16, 1987, a dismissal with prejudice was entered. On March 17, Ramos brought a motion to compel plaintiffs to pay his expert witness fees. After a hearing, the court dismissed the motion on the ground that the court no longer had jurisdiction of the matter. From that order, Ramos appealed.

Polston v. Levine, 171 Ga. App. 893, 894 (2) (321 SE2d 350) (1984), recognized the right to recover expert witness fees after the voluntary dismissal of a case where the motion to compel payment was pending. Analogy was made to a counterclaim which cannot be defeated by the expedient of voluntarily dismissing the main action. See Worthen v. Jones, 240 Ga. 388 (240 SE2d 842) (1977). OCGA § 9-11-41 (a) provides protection to a counterclaim, where it has been pleaded prior to service of plaintiff’s motion to dismiss.

Under former practice, Waldor v. Waldor, 217 Ga. 496 (1) (123 SE2d 660) (1962), held that plaintiff could dismiss where no affirmative defensive pleadings were filed and that after dismissal there is no case in court. See Davenport v. Hardman, 184 Ga. 518 (192 SE 11) (1937). That is the situation here because no motion was pending at the time of dismissal, and the same rule applies. The court simply no longer had jurisdiction of the case in which the ancillary question of the witness fees was sought to be adjudicated. To hold otherwise would allow resurrection of jurisdiction to deal with claims which could have been asserted while suit was pending but which were not submitted for judicial resolution until after conclusion of the case. Such an extension so as to give jurisdiction over new issues finds no authority.

Decided May 5, 1988.

Hunter S. Allen, Jr., Edward D. Flynn III, for appellant.

James E. Carter, Alexander H. Booth, J. M. Hudgins IV, for appellee.

It is true that OCGA § 9-15-14 (e) permits attorney fees and expenses to be requested within forty-five days after the final disposition of the action. However, that statutory remedy available to parties suffering from frivolous actions does not embrace a witness’ direct claim for deposition fees. Nevertheless, as appellant recognizes, he is not remediless. Having chosen or failed to seek in a timely fashion a court determination of his claim in the suit in which he was a deponent, he may bring a separate suit.

At the time the motion was filed, however, the trial court was without jurisdiction of the question and properly dismissed the witness’ motion.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    76569.
    MOSLEY v. THE STATE.
    (369 SE2d 345)
   Banke, Presiding Judge.

The appellant was convicted of one count of cruelty to children and one count of child molestation. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in refusing to grant him a continuance following the state’s disclosure, immediately prior to trial, that the offense charged in one of the counts of the indictment had in fact occurred seven days earlier than the date alleged in the indictment. Although the court responded by severing that count, the appellant nevertheless maintains that he was entitled to a continuance because the court’s action prevented him from presenting an alibi defense which was pertinent to the remaining counts as well as the severed count.

Broad discretion is granted trial courts with regard to continuances. Beard v. State, 178 Ga. App. 265, 266 (342 SE2d 751) (1986). An appellate court will not interfere with the exercise of that discretion unless a clear abuse is shown. Gaines v. State, 142 Ga. App. 181 (1) (235 SE2d 640) (1977). The record before us contains no support for the appellant’s assertion that he was prevented by the denial of his motion for continuance from presenting evidence relevant to the charges for which he was actually tried. It follows that no abuse of discretion has been established in this case.

Decided May 5, 1988.

Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

2. The appellant further contends that the trial court erred in refusing to charge the jury on simple battery as a lesser offense included within child molestation. The appellant’s position at trial was that he had engaged in no physical contact whatever with the child, sexual or otherwise. Therefore, there was no evidentiary basis for a charge on simple battery. Accord State v. Stonaker, 236 Ga. 1, 2-3 (222 SE2d 354) (1976).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    75821.
    HILL et al. v. LOREN.
    (369 SE2d 260)
   Pope, Judge.

This case involves a dispute regarding the guardianship of two minor children now residing in Florida. The appeal is taken from the judgment of the superior court on de novo review of an order of the probate court.

In April 1977 the mother of the two minors, appellee Judith Nicole Loren (then Judith H. Rotenberry), informed her brother, appellant Clyde J. Hill, Sr., that she was unable to care for her children due to financial, physical and emotional problems. Hill immediately drove to Florida and brought the children back to Georgia to live with him and his wife. Prior to returning to Georgia, he obtained from his sister a sworn statement entitled “Affidavit and Consent for Temporary Custody,” in which Loren voluntarily consented to Hill and his wife “having temporary custody of the minor children” and consented to their seeking an order granting temporary custody from a court of competent jurisdiction. In return, Hill and his wife executed an affidavit accepting temporary custody in which they agreed voluntarily to relinquish custody back to the natural mother upon her regaining her ability to care for the children. The record shows the minors resided with Hill only from April until June 1977, when Loren picked up her children and returned with them to Florida. During the two months the children resided with him, Hill obtained an order from the probate court appointing him guardian of the person and property of the two minor children.

In 1985 Loren was convicted of the murder of her husband, the step-father of her children. All parties to the current action believe the two minor children may be entitled to substantial proceeds from a policy of insurance on the life of their deceased step-father. Thus, the issue of who is the legal guardian of the children is of utmost importance in determining who has the legal right to bring a claim for insurance proceeds on behalf of the children. Loren filed a petition in the probate court for the removal of Hill as guardian, which was denied. The probate court also issued an order granting approval of a contingency fee contract between Hill and his attorneys for the bringing of a claim, in his capacity as legal guardian, for insurance benefits on behalf of his wards. On de novo review, the superior court found the probate court lacked jurisdiction over the matter and granted summary judgment to the mother, Loren. Hill appeals.

1. From the record, it appears uncontested that one of the minor children involved in this case was born out of wedlock and is, therefore, illegitimate. The mother of an illegitimate child is its natural guardian by operation of law. Whitlock v. Barrett, 158 Ga. App. 100 (279 SE2d 244) (1981). As to the other child involved in this case, at the time the original award of guardianship was granted in 1977, the mother was in custody of the child after divorce from the father. “If . . . the parents are legally separated or divorced, the parent having custody of the child is the natural guardian.” OCGA § 29-4-2 (a). Therefore, at the time guardianship was awarded to Hill in 1977, Loren was the natural guardian of both children.

“The probate court has no authority to appoint another as guardian of the person of a child with a living natural guardian unless the loss of that status has been ascertained and declared in some regular proceeding authorized by law, after due notice is given.” (Punctuation and cit. omitted.) Whitlock v. Barrett, 158 Ga. App. at 102. Appellant Hill argues the appointment of guardianship was proper because the mother, the natural guardian of the two minor children, had voluntarily waived her parental rights and consented to the award of guardianship by sworn affidavit. However, the affidavit clearly conferred only temporary custody to Hill, and made no reference to permanent guardianship. Even though the affidavit purported to vest Hill “with all of the legal rights and responsibilities that your affiant is possessed with as natural mother and primary custodian,” when read in its entirety, the document can only be interpreted as granting those rights on a temporary basis for the purpose of transferring temporary custody of the children to Hill. The intent of the document was further supported by the testimony of Loren at the hearing on her petition for removal of guardianship and by the acts of Hill himself, who surrendered custody of the children to Loren only two months after the affidavit was executed and who assumed no further custody of the children again in the intervening ten years. Parental rights are not relinquished by an agreement granting mere custody. See Land v. Wrobel, 200 Ga. 260 (138 SE2d 315) (1964). Therefore, we affirm the trial court’s finding that the probate court lacked jurisdiction to grant guardianship to Hill and that its order awarding guardianship in 1977 was void ab initio. We reject appellant’s argument that the mother’s challenge to the award of guardianship was untimely made. “A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time.” OCGA § 9-11-60 (f).

Decided April 4, 1988

Rehearing denied May 6, 1988

William D. Cunningham, for appellants.

W. Ralph Hill, Jr., for appellee.

2. The record shows the minor children involved in this action and their mother all reside in the state of Florida. Therefore, jurisdiction over the issue of guardianship over the person or property of the children is properly with the courts of the State of Florida. Accordingly, the Georgia probate court was without jurisdiction to approve the attorney fee contract for the bringing of the insurance claim on behalf of the minor children. The interested parties must pursue all matters concerning guardianship in the proper jurisdiction.

3. Appellant Hill argues the court erred in permitting appellee Loren to file an untimely brief in response to Hill’s motion for summary judgment. The evidence relied upon by Hill, consisting of the record and transcript of the probate court hearing, was insufficient to support his motion for summary judgment. Therefore, regardless of the timeliness of appellee Loren’s brief in response to the motion for summary judgment, Hill was not entitled to summary judgment pursuant to OCGA § 9-11-56 (e).

4. We find the superior court did not err in denying appellant Hill’s motion for summary judgment.

Judgment affirmed.

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


text:
    75831.
    HOWARD v. THE STATE.
    (369 SE2d 271)
   Pope, Judge.

Defendant Howard was indicted with three others for the armed robbery of two gasoline stations in Macon in the early morning hours of October 23, 1986. One of the accomplices, Lewis Raines, pled guilty and testified against defendant at trial. Raines testified he and the other two indicted defendants, before meeting up with defendant Howard, robbed another gasoline station and took the station attendant’s purse, which contained a .38 caliber pistol. After defendant Howard joined them, the four men robbed the other two stations, using the pistol to intimidate the cashiers. Thus, defendant Howard was named in Counts 2 and 3 of the three-count indictment.

By the time they were arrested, defendant Howard and Raines had already dropped off the other two accomplices at their homes. At the time of arrest, defendant was wearing a light blue jacket and Raines was wearing red and black two-toned jeans. The cashier at the station involved in Count 2 of the indictment identified one of his assailants but could not identify defendant Howard. He also testified he believed the second man who attacked him was wearing a tan, not a blue, jacket. The cashier at the store involved in Count 3 of the indictment testified one of the two men who attacked her was wearing two-toned jeans and one was wearing an aqua-blue jacket.

The arresting officer testified he was patrolling on the evening in question in his police car and had been alerted to the fact that three robberies had occurred that evening. The officer was instructed to be on the lookout for the suspects, wearing dark shirts, one with two-toned pants and one with a blue jacket. Both were described as young black men, one taller than the other. Shortly after the third robbery was reported, the officer was stopped at a traffic light at a well-lighted intersection some three to four miles from the scene of the last robbery. A car approached from the cross-street and made a left turn at the intersection, passing directly in front of and beside his patrol car. The driver and the front passenger were both young black men dressed in dark shirts. One appeared to be taller than the other. The driver appeared to avert his face as he drove past the police car and the passenger appeared to sink into the seat. When he pulled them over, he discovered that the remainder of their clothing matched the description of the lookout. Raines was placed under arrest for driving without a license and without proof of insurance. Raines told the officer that the car was owned by his mother who could not be reached. Defendant Howard informed the officer he had no identification with him, thereby indicating he had no driver’s license. Therefore, the officer commenced a routine inventory prior to impounding the car. On the floor of the car was a check dated October 22, 1986 made payable to one of the gasoline stations which had been robbed. The officer also found a .38 caliber pistol which matched the description given by the victim whose purse had been stolen. Defendant Howard was then placed under arrest for suspicion of robbery. When he was searched, the officer found $90 in folded bills in his pants pocket and $15.70 in coins.

Defendant Howard was acquitted on Count 2 and found guilty of Count 3 of the indictment. We affirm the conviction.

1. Defendant first argues the evidence was insufficient to convict him because the testimony of the accomplice was not corroborated as required by OCGA § 24-4-8. We find the circumstantial evidence presented at trial was sufficient to corroborate the testimony of the accomplice and to support the guilty verdict. See Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979); Reaves v. State, 242 Ga. 542 (1) (250 SE2d 376) (1978).

2. The State also produced a witness who positively identified defendant as one of two black males who robbed the convenience store at which she was the cashier on October 15, 1986. She testified that one assailant came to the counter as if to make a purchase. When she opened the cash register, he attacked her and held her on the floor while defendant Howard ripped the cash drawer out of the cash register. As the men were leaving the store, one of them yelled back at her, “Shut up, bitch.” Both of the robberies with which defendant was charged involved gasoline station/convenience stores open late at night. The robberies were conducted by two black men, one of whom would pretend to buy an item and one of whom would rip out the cash drawer when the cashier opened the register. One of the victims of these two robberies testified that the robbers used language similar to that used in the unrelated robbery. The defendant was positively identified as one of the perpetrators of the unrelated crime. In addition, there were similarities between the unrelatd crime and the robberies for which defendant was being tried. Therefore, the testimony of the victim of the unrelated crime was sufficient to establish a similar transaction and met the requirements necessary to create an exception to the general rule prohibiting the admission of evidence concerning the defendant’s general character. See State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980).

3. Defendant maintains the trial court erred in admitting into evidence testimony of the interrogating officers that the defendant made a statement to them about his activities on the evening in question which was in conflict with his testimony at trial. Prior to admitting this testimony, the court conducted a suppression hearing in accordance with Jackson v. Denno, 378 U. S. 368 (84 SC 1774,12 LE2d 908) (1964). While defendant denied that he waived his right to an attorney before making any statements, the interrogating officers testilled that defendant’s rights were read to him and that he waived the right to an attorney. Factual and credibility determinations regarding conflicting testimony in a Jackson-Denno suppression hearing are for the trial court and will not be overruled by the appellate court unless the record shows such determinations are clearly erroneous. Belcher v. State, 173 Ga. App. 509 (3) (326 SE2d 857) (1985). We find no error in admitting the testimony concerning defendant’s statement.

4. Defendant alleges the trial court erred in failing to suppress evidence found on defendant’s person at the time of arrest and in the automobile driven by defendant’s accomplice. In regard to the check made out to one of the businesses robbed on the evening in question and the pistol stolen from one of the victims, both of which were found in the automobile, defendant, a mere passenger in the automobile, has no right to object. Dutton v. State, 228 Ga. 850 (1) (188 SE2d 794) (1972). Moreover, the evidence adduced at the suppression hearing shows the search of the automobile was conducted in accordance with standard police procedure pursuant to an inventory of the contents of the automobile in preparation for impounding it. The driver of the automobile had been properly arrested for driving without a license or proof of insurance. The arresting officer could properly assume defendant, a passenger in the automobile, was not in possession of a license to drive the automobile since he had answered he had no identification with him. Therefore, impoundment of the automobile was proper and evidence discovered in the car was not subject to a motion to suppress. See Estes v. State, 169 Ga. App. 685 (314 SE2d 700) (1984). The initial detention of the suspects was based on specific and articulable facts, namely the suspects’ physical resemblance to the description given by the victims. Therefore, these facts gave rise to a reasonable suspicion that the men had been involved in the robberies, and the officer was justified in detaining them and checking their automobile. Baker v. State, 170 Ga. App. 700 (1) (318 SE2d 178) (1984). In regard to the money found on defendant’s person, this evidence was obtained during a routine search pursuant to a lawful arrest for suspicion of robbery, based upon the additional information and evidence obtained by the officers after their detention of the suspects. Therefore, the court properly denied defendant’s motion to suppress evidence.

5. We reject defendant’s argument that the court should have granted a directed verdict for lack of evidence for the reasons discussed in Division 1 of this opinion.

6. Finally, defendant argues that he should have been awarded judgment notwithstanding the verdict because the verdicts of acquittal on Count 2 and conviction on Count 3 of the indictment are inconsistent. Inconsistency of verdicts is no longer a ground for reversal of a criminal conviction. Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). The evidence was sufficient to support conviction on Count 3 of the indictment notwithstanding the jury’s acquittal of defendant as to Count 2 of the indictment. See Parker v. Mooneyham, 256 Ga. 334 (349 SE2d 182) (1986).

Decided April 7, 1988

Rehearing denied May 6, 1988.

J. Kevin Davis, for appellant.

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

Judgment affirmed.

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


text:
    75848.
    HERNDON v. THE STATE.
    (369 SE2d 264)
   Pope, Judge.

Defendant appeals from his conviction of violation of the Georgia Controlled Substances Act. We affirm the conviction.

1. At trial, the state produced a bag containing the marijuana defendant participated in selling to the undercover agent. The chemist who originally tested the substance was.no longer employed by the state crime lab and the state presented as a witness a second crime lab employee who also tested the substance and testified that it was marijuana. The written report on the original test of the substance was produced to defendant. However, the crime lab chemist who appeared at trial testified she made no written report of her findings. Therefore, we reject defendant’s argument that the witness’ testimony should have been excluded for failure to provide the defendant with a copy of a written scientific report, pursuant to OCGA § 17-7-211 (b). “[OCGA § 17-7-211] applies to scientific reports in writing and not oral reports of experts relaying the results of tests.” Perry v. State, 255 Ga. 490, 492 (339 SE2d 922) (1986). See also Faircloth v. State, 253 Ga. 67 (2) (316 SE2d 457) (1984); Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983).

We also reject defendant’s claim that the state failed to establish a proper chain of custody for the tested substance. The testimony of the undercover agent established that the substance in question was taken from defendant’s accomplice and was submitted by him to the state crime lab. Although the individual who originally tested the substance was not available to testify at trial, the state’s expert witness established that no other person had access to the substance once it arrived at the state crime lab besides herself, the original tester and their supervisor. Therefore, the identity of the sample and the chain of custody to preserve its identity was sufficiently established to permit its introduction into evidence. See generally Patterson v. State, 224 Ga. 197 (2) (160 SE2d 815) (1968); Terry v. State, 130 Ga. App. 655 (204 SE2d 372) (1974); Pittman v. State, 110 Ga. App. 625 (1) (139 SE2d 507) (1964).

2. Defendant argues the trial court erred in admitting the testimony of his accomplice because the state failed to list the accomplice as a witness pursuant to OCGA § 17-7-110. However, the record shows defendant, himself, subpoenaed the accomplice as a witness. The accomplice testified he previously discussed the facts of the case with defendant’s counsel. “[T]he purpose of OCGA § 17-7-110 ... is to insure that an accused is not confronted at trial with testimony against him from witnesses who [sic] he has not had the opportunity to interview prior to trial.” Redmond v. State, 252 Ga. 142 (2) (312 SE2d 315) (1984). We find no error in permitting said witness to testify.

3. The undercover agent testified he approached defendant’s accomplice and asked for his help in obtaining marijuana. The accomplice told him he would call his friend Jack, who would know where to obtain the marijuana. On cross-examination, defendant’s attorney asked the undercover agent if the accomplice told him who Jack was. The state’s witness responded: “He said it’s a chain gang buddy of mine that escaped. . . .” On appeal, defendant argues this comment shows the state improperly placed his character into evidence. “[A] passing reference to a defendant’s record does not place his character in evidence.” Johnson v. State, 256 Ga. 604, 605 (351 SE2d 623) (1987). This passing reference made in response to a question by defendant’s attorney provides no ground for overturning defendant’s conviction or granting a new trial.

4. Defendant argues he is entitled to a directed verdict because, pursuant to OCGA § 24-4-8, he cannot be convicted by the uncorroborated testimony of the accomplice identifying the defendant as the man who assisted in making the sale to the undercover agent. The undercover agent identified defendant as the driver of the automobile who picked up the accomplice from the accomplice’s home and who returned with him a short time later, at which time the accomplice made the sale. Defendant testified the state’s witness would have been in no position to see him in the automobile. The credibility of witnesses and the weight to be accorded their testimony is the sole province of the jury. Murff v. State, 165 Ga. App. 808 (4) (302 SE2d 697), rev’d on other grounds, 251 Ga. 478 (306 SE2d 267) (1983). The testimony of the state’s witness, viewed in the light most favorable to the verdict, was sufficient to corroborate the testimony of the accomplice and to support defendant’s conviction.

5. Defendant argues the trial court erred in failing to charge the jury on the lesser included offense of possession of marijuana. Defendant testified at trial and denied having any knowledge that his accomplice was in possession of marijuana or purchased marijuana in order to sell it to the undercover agent. The only evidence concerning defendant’s possession of marijuana was the testimony of the undercover agent that the accomplice told him defendant had smoked a joint from the bag sold to the agent on the way back to the accomplice’s home. This was merely a hearsay statement and would be insufficient evidence to establish defendant’s possession of marijuana. It is not error for the trial court to refuse to charge on a lesser included offense when, as here, the evidence does not reasonably raise the issue that defendant may be guilty of a lesser crime. Quick v. State, 139 Ga. App. 440 (5) (228 SE2d 592) (1976).

Decided April 6, 1988

Rehearing denied May 6, 1988.

Tamara Jacobs, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Eric D. Hearn, Assistant District Attorney, for appellee.

6. In applying the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence was sufficient, when construed in favor of the verdict, to sustain a finding of guilt beyond a reasonable doubt by a rational trier of fact.

Judgment affirmed.

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


author: Benham, Judge.

text:
    75915.
    MILLS v. THE STATE.
    (369 SE2d 283)
   Benham, Judge.

Appellant was convicted of the aggravated assault and aggravated battery of his wife, who was blinded as a result of the attack. On appeal he raises six enumerations of error.

1. Because of a comment made by the trial judge during a hearing on appellant’s motion for funds to retain an independent medical expert, appellant filed a motion to recuse the judge. The motion was denied, and appellant cites that denial as error. We disagree. Appellant, as movant, was required to file a timely and legally sufficient motion. Romine v. State, 251 Ga. 208 (2) (305 SE2d 93) (1983). Under Rule 25.1 of the Uniform Rules for Superior Courts (253 Ga. 841), the motion is timely if filed and presented to the judge not later than five days after the affiant first learned of the ground for disqualification, unless good cause is shown for failure to meet such a time requirement. The trial judge’s comment, the basis on which appellant sought disqualification, was allegedly made at a hearing on March 5, 1987, and appellant became aware of it at that time. However, he did not file his motion to recuse until March 18, 1987, and did not show good cause for failing to do so earlier. Since the motion was not timely, the trial court did not err in denying it. Romine, supra.

2. Appellant also argues that the trial court erred in denying his motion for funds to retain a medical expert. We again find no error, inasmuch as the motion was not timely filed. USCR 31.1 requires that such a motion be made and filed at or before time of arraignment, unless a written extension of time is given by the trial court before trial. Appellant did not comply with that requirement, and the State objected on that basis. The motion was properly denied. See Tillman v. State, 184 Ga. App. 210 (3) (361 SE2d 66) (1987). Compare Thornton v. State, 255 Ga. 434 (2) (339 SE2d 240) (1986), in which a timely request was made and granted.

3. The trial court declined to give appellant’s request to charge on the defense of accident, finding that there was no evidence presented to support it. Appellant cites this denial as error, arguing that even absent the request, the trial court should have given such a charge, since accident was his sole defense. The defense of accident is defined by OCGA § 16-2-2 as follows: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” The theory of appellant’s case was that the victim had been in an automobile which had run into a ditch before she was assaulted and that the incident involving the automobile, not the assault, was the cause of her injury and blindness. Contrary to appellant’s contentions, the evidence to that effect did not raise the issue of accident or misfortune within the meaning of OCGA § 16-2-2. The trial court did not err in refusing to give the charge requested. Newsome v. State, 149 Ga. App. 415 (5) (254 SE2d 381) (1979).

4. Appellant contends that he should not have been sentenced for aggravated assault and aggravated battery because the offenses merged. He relies on OCGA § 16-1-7 (a), which states: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” In other words, “a felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person, property, or public interest. This provides for broader protection to an accused than does the Federal Constitution.” Pryor v. State, 238 Ga. 698, 701 (234 SE2d 918) (1977). Applying those definitions to appellant’s case, the aggravated assault conviction did merge into the aggravated battery conviction. The facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the aggravated battery charge, as it was set forth in the indictment, with the additional element being the victim’s loss of use of her eye. Mitchell v. State, 238 Ga. 167 (231 SE2d 773) (1977). Since appellant could not have been convicted for both crimes, the conviction for the included offense, the assault, must be vacated. Green v. State, 170 Ga. App. 594 (2) (317 SE2d 609) (1984). Therefore, we agree that appellant should have been sentenced for the aggravated battery, but not for the aggravated assault.

Decided April 20, 1988

Rehearing denied May 6, 1988.

Christopher C. Edwards, for appellant.

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

5. In view of the disposition of appellant’s enumeration of error in Division 4 of this opinion, we need not address the remaining two enumerations of error.

Judgment affirmed in part and vacated in part.

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


text:
    75951.
    BILL DAVIDSON BUICK, INC. v. SIMS.
    (369 SE2d 285)
   Benham, Judge.

The evidence of record in this case shows without dispute that appellee bought a 1984 Cadillac from Georgia Auto Wholesalers in November 1984; that appellee bought a new car from appellant in March 1985, trading in the Cadillac; that appellant subsequently discovered that the Cadillac was a welded-together composite of parts of two cars; that appellee had no knowledge when he traded it to appellant of the composite nature of the car; and that the title appellee had acquired and transferred to appellant did not reveal that the car had been rebuilt. When appellee declined to repay any of the credit he had received, appellant brought suit for fraud and breach of contract. The basis of the breach of contract claim was appellant’s allegation that appellee did not comply with OCGA § 40-3-35 by having the title to the car marked “salvage” or “rebuilt.” The trial court granted summary judgment to appellee on both counts. On appeal, appellant contends only that it was error to grant summary judgment to appellee on the contract claim. We affirm.

1. OCGA § 40-3-35 (b) requires the purchaser of a “salvage motor vehicle” to apply for a “salvage certificate of title,” and subsection (d) requires that such a title certificate contain the word “salvage” on its face. It is appellant’s position that appellee was the purchaser referred to in subsection (b). Our consideration of the definitions in OCGA § 40-3-2 (11) & (12) convinces us otherwise:

“(11) ‘Rebuilt motor vehicle’ means any motor vehicle which has been damaged and subsequently restored to an operable condition by the replacement of two or more major component parts.
“(12) ‘Salvage motor vehicle’ means any motor vehicle which: (A) Has been damaged to the extent that its restoration to an operable condition would require the replacement of two or more major component parts but shall not mean any such motor vehicle which has been repaired and the title to which is not transferred as a result of such damage or repair; (B) Has been acquired by an insurance company as the result of the vehicle being damaged to the extent that its restoration to an operable condition would require the replacement of two or more major component parts or for which the insurance company has paid a total loss claim; or (C) Is an imported motor vehicle which has been damaged in shipment and disclaimed by the manufacturer as a result of the damage, has never been the subject of a retail sale to a consumer, and has never been issued a certificate of title.”

It is apparent from the definitions and from the facts of this case that appellee purchased a “rebuilt motor vehicle” rather than a “salvage motor vehicle.” The statute places no duty on the purchaser of a “rebuilt” vehicle to have the certificate of title marked with any identifier; that duty is on the purchaser of a “salvage” vehicle, i.e., one not yet rebuilt. To adopt appellant’s interpretation of the statute would make appellant itself guilty of a misdemeanor since it purchased the car from appellee and resold it without causing the title certificate to be marked appropriately. OCGA § 40-3-35 (h). We do not accept the notion that the legislature’s intent was to punish the victims of fraud rather than the perpetrators.

No one disputes that the certificate of title to the car appellant accepted from appellee should have had the word “rebuilt” or the word “salvage” printed thereon. Further, according to OCGA § 40-3-35.1 (c) (1) (B), the word “rebuilt” should have been stamped into the car’s metal or onto a plate affixed to the car. However, the absence of such warnings, so far as the record shows, was not due to appellee’s wrongdoing. We agree with the trial court, therefore, that OCGA § 40-3-35 did not apply to appellee and that summary judgment in his favor was required.

2. In light of the paucity of authority regarding the interpretation of the statute involved in this case, we do not deem this appeal to be frivolous. Accordingly, appellee’s motion for a penalty pursuant to Rule 26 of this court is denied.

Decided April 20, 1988

Rehearing denied May 6, 1988.

Lewis M. Groover, Jr., for appellant.

J. Glenn Richardson, for appellee.

Judgment affirmed.

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


text:
    75986.
    PETTY v. BARRETT.
    (369 SE2d 294)
    Decided April 21, 1988
    Rehearing denied May 6, 1988
   Pope, Judge.

The question presented by this case, to wit, whether OCGA § 51-12-1 (b) is to be given retroactive effect to events predating its enactment in a trial following its enactment, was recently addressed in Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988), wherein the Supreme Court, reasoning that this section works a substantive change in the law governing collateral benefits, held that it was to be given prospective effect only. Accordingly, the decision of the trial court denying plaintiff’s motion in limine and allowing such evidence to be admitted in the present case must be reversed.

It does not follow, however, that a new trial is necessary on all aspects of this case. The record shows that the jury returned a verdict for plaintiff and awarded her $5,000 for pain and suffering. The only other damages sought by plaintiff were for medical expenses. It is obvious that the erroneous admission of evidence concerning collateral benefits could have affected the jury’s decision on plaintiff’s right to recover these latter damages although such evidence would be immaterial on the issue of plaintiff’s entitlement to damages for pain and suffering. Consequently, we hold that the new trial in this case should be limited to the issue of plaintiff’s right to recover for medical expenses incurred as the result of her injury. See generally Clark v. Wright, 137 Ga. App. 720 (2) (224 SE2d 825) (1976).

Judgment affirmed in part and reversed in part.

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

John T. Newton, Jr., for appellant.

Samuel A. Murray, for appellee.


text:
    76016.
    WILKINS v. BUTLER.
    (369 SE2d 267)
   Pope, Judge.

On January 23, 1986 plaintiff/appellee filed suit in the State Court of DeKalb County against defendant/appellant and defendant’s employer, the DeKalb County Board of Education, seeking damages for personal injuries sustained in an automobile collision which occurred on February 10, 1984. On July 18, 1986, after having learned that defendant was no longer a resident of DeKalb County and could not be served there, plaintiff dismissed without prejudice her action against both parties. Thereafter, on September 18, 1986, plaintiff instituted the present action in the Superior Court of Henry County. Several months later, defendant, relying on Acree v. Knab, 180 Ga. App. 174 (348 SE2d 716) (1986), filed a motion for summary judgment in which he argued, inter alia, that because he was never served with the original DeKalb County complaint, the renewal provision contained in OCGA § 9-2-61 was inapplicable and plaintiff’s Henry County action was barred by the applicable statute of limitation. Plaintiff then filed a motion for summary judgment seeking to enforce an alleged settlement agreement between the parties. On appeal, defendant contends that the trial court erred in both denying his motion and granting plaintiff’s motion for summary judgment.

It is clear to us, and indeed plaintiff does not dispute, that the renewal statute was inapplicable under the facts present here and hence plaintiff’s Henry County action was barred by the statute of limitation applicable to actions of this kind. See Aeree v. Knab, supra. Consequently, the only issue we need consider on appeal is whether the parties reached an enforceable agreement to settle the controversy between them. Plaintiff argues that such an agreement was reached because defendant never withdrew his offer to settle for $4,500 which was made in February 1986 shortly after the DeKalb County action was filed; accordingly, when plaintiff notified defendant in February 1987 that she would accept his previous offer, an enforceable agreement was reached. We disagree. “If no time is prescribed for accepting an offer, it must be done within a reasonable time. [Cits.]” Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117, 118 (80 SE 559) (1913). “What constitutes a reasonable time in any given case must depend upon its own peculiar facts. It is generally a question for the jury, but in any case of unusual delay it may become a question of law, rather than of fact.” Home Ins. Co. v. Swann, 34 Ga. App. 19, 25 (128 SE 70) (1925). Accordingly, an offer not accepted within a reasonable time is deemed to have lapsed. See Moore v. Lawrence, 192 Ga. 441, 443 (15 SE2d 519) (1941).

Decided April 6, 1988

Rehearing denied May 6, 1988

Michael S. Huff, Reagan W. Dean, for appellant.

Turning now to the facts of the present case, we must conclude, as a matter of law, that the original offer had lapsed at the time of plaintiff’s attempted acceptance. In so finding we note that not only was the offer made a full year before the purported acceptance but also that it was made in an attempt to settle another lawsuit, which was subsequently dismissed by the plaintiff. Indeed, the parties’ actions and correspondence do not indicate that they believed the offer to be outstanding at the time of the attempted acceptance or that they believed that an enforceable agreement had been reached at that time. Rather, the record shows only that plaintiff’s attorney communicated to defendant’s counsel in February 1987 that plaintiff was then willing to settle for $4,500 and that defendant’s counsel indicated he would ascertain if his client’s insurer was willing to pay that amount to settle the case. Likewise, in a letter dated March 12, 1987, plaintiff’s attorney requested defendant’s attorney to urge his client to settle for that amount. In this regard, the record also shows that following the alleged settlement in February 1987, discovery continued and plaintiff never attempted to compel enforcement of the purported agreement until April 1987, after defendant filed his motion for summary judgment.

“Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. See McKie v. McKie, 213 Ga. 582 (100 SE2d 580) (1957).” Blum v. Morgan Guar. Trust Co., 709 F2d 1463, 1467 (11th Cir. 1983); Moore v. Farmers Bank, 184 Ga. App. 86 (360 SE2d 640) (1987). In this regard, “[i]t is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. See Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287 (1) (241 SE2d 256) (1977); Jack V. Heard Contractors v. Adams Constr. Co., 155 Ga. App. 409, 412 (271 SE2d 222) (1980).” Cox Broadcasting v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982). Clearly, such a meeting of the minds never occurred in the present case and the trial court erred in so finding.

Judgment reversed.

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

Clarence R. Horne, Jr., for appellee.


author: Carley, Judge.

text:
    75867.
    SMITH et al. v. FELICIANO et al.
    (369 SE2d 346)
   Carley, Judge.

Appellant-plaintiffs Victor Paul Smith and Elma Smith brought this tort action against appellee-defendant physicians. The complaint averred that appellees had negligently misdiagnosed and treated appellant Victor Paul Smith’s shoulder, as a result of which professional negligence, Mr. Smith allegedly sustained injuries for which he sought to recover damages from defendants. Elma Smith sought to recover damages for loss of consortium. Appellees answered, denying the material allegations of the complaint.

Both appellees subsequently filed a motion for summary judgment. The motions were supported by appellees’ own affidavits, wherein they swore that, in treating and caring for appellant Mr. Smith, they had utilized the proper standard of care and skill employed by the medical profession generally under similar conditions and like surroundings. In opposition to appellees’ motions, appellants submitted the affidavit of another physician. According to appellants’ expert, the opinion that he expressed in his affidavit was based upon his review of certain medical records and x-rays and upon his experience as an orthopedic surgeon. The ultimate opinion of appellants’ expert was that “ [according to the standard of care in Georgia the treatment of [appellant] Mr. Smith by [appellees] was not in fact proper.” The trial court granted appellees’ motions for summary judgment, and it is from that order that appellants bring this appeal.

1. The grant of summary judgment is enumerated as being erroneous on the basis that the affidavits of appellees failed to pierce the pleadings of appellants’ complaint. “The [appellee] doctors’ affidavits stated their individual medical credentials, their expertise in their specific field of medicine, and their expert opinion that . . . their treatment [and care] of [appellant Mr. Smith] was in accordance with that degree of care and skill customarily and ordinarily employed by physicians generally [under the same conditions and like-surrounding circumstances]. . . . The law presumes that medical and surgical services were performed in an ordinarily skillful manner and the burden is on the one receiving the services to show a want of due care, skill, and diligence. [Cit.] A defendant-doctor is competent to give his opinion as an expert in a medical malpractice action against him. [Cit.] Such expert testimony, the same as any other expert testimony on the same issue, can be sufficient to pierce the pleadings of the plaintiff-patient. [Cit.]” Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500, 501 (1) (333 SE2d 884) (1985). See also Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987). The trial court correctly found that appellees’ own affidavits were sufficient to pierce the allegations contained in appellants’ complaint as to medical negligence.

Decided May 6, 1988.

Bobby D. Simmons, for appellants.

Dennis A. Elíseo, Hunter S. Allen, Jr., for appellees.

2. Appellants also contend that it was error to grant appellees’ motion for summary judgment in that the affidavit of the expert which appellants offered in opposition to appellees’ motion was sufficient to create a genuine issue of material fact as to appellees’ medical negligence.

The opinion of appellants’ expert as to appellees’ negligence purports to be based upon his consideration of certain material which is not in the record. Not all of those medical records and x-rays of appellant Mr. Smith, upon which the expert witness states that he based his opinion, are included in the record. “Our review of the affidavit reveals that the portions of [the affidavit] that could be said to raise a genuine issue of material fact [as to whether appellees were negligent in their diagnosis and treatment of appellant Mr. Smith] and thus preclude the trial court’s grant of appellees’ summary judgment motion were based on the missing records [and the x-rays]. Since the affidavit does not set forth admissible facts, it must be disregarded. [Cit.]” Mingledolph v. Univ. Emergency Physicians, 174 Ga. App. 75, 76 (329 SE2d 222) (1985). It follows that, for this reason, the trial court correctly ruled that the affidavit of appellants’ expert filed in opposition to appellees’ motion for summary judgment was insufficient to show the existence of a genuine issue of material fact as to appellees’ medical negligence.

3. Our holding in Division 2 renders moot any consideration of whether the opinion of appellants’ expert was based upon the standard of care applicable in a medical malpractice case. See Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757) (1985) (legal malpractice).

4. As discussed in Division 1, appellees’ own affidavits submitted in support of their motions were sufficient to pierce the allegations of appellants’ complaint. As discussed in Division 2, appellants failed to meet the evidentiary burden which was shifted to them to show the existence of an issue of fact for jury resolution. It follows that the trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

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


text:
    76148.
    HOOD v. THE STATE.
    (369 SE2d 348)
    Decided May 6, 1988.

      John O. Ellis, Jr., for appellant.

      Robert E. Wilson, District Attorney, J. Michael McDaniel, Helen A. Pryles, Assistant District Attorneys, for appellee.
   Benham, Judge.

Indicted for entering an automobile in violation of OCGA § 16-8-18, appellant was found guilty but mentally ill. On appeal, his only enumeration of error is that the trial court’s charge on the verdict of guilty but mentally ill misstated the degree of proof required.

The trial court instructed the jury that it would be authorized to find appellant guilty but mentally ill if it believed beyond a reasonable doubt that appellant was guilty, but believed “by a preponderance of the evidence that the Defendant was mentally ill at the time of the commission of the offense.” It is clear from the Supreme Court’s opinion in Spivey v. State, 253 Ga. 187 (2) (319 SE2d 420) (1984), that, under OCGA § 17-7-131 (c) (2), both guilt and mental illness must be proved beyond a reasonable doubt. We must agree, therefore, that the trial court’s charge was erroneous.

We do not agree, however, that the error requires reversal. The Supreme Court also made it clear in Spivey that since mental illness is not an element of the underlying offense, the burden of persuasion as to that issue is on the defendant and, further, that the statutory requirement that such mental illness be proved beyond a reasonable doubt is not constitutionally infirm. Since the trial court’s error had the effect of reducing the burden appellant bore of showing mental illness, it was beneficial and does not require reversal. “Appellant cannot complain of a charge which is beneficial to him.” Hance v. State, 245 Ga. 856 (4) (268 SE2d 339) (1980).

Judgment affirmed.

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


text:
    75878.
    KIRBY v. THE STATE.
    (369 SE2d 274)
   Benham, Judge.

Appellant was convicted under separate indictments of rape and incest. The victim of both offenses was his then 14-year-old adoptive daughter.

1. In his first enumeration of error, appellant challenges the sufficiency of the evidence. We find no merit in that claim.

The State’s primary evidence was testimony of statements made by the victim and by appellant. At trial, appellant recanted his statement and the victim denied remembering some of her statements and denied making others. Her prior statements, inconsistent with her trial testimony that she did not remember making some of them and that she did not make others, were admissible as substantive evidence. Brown v. State, 175 Ga. App. 246 (1) (333 SE2d 124) (1985). Those statements established the occurrence of multiple instances of rape and incest. There was some corroboration of the victim’s statement in the testimony of a physician who examined her. A GBI agent testified to a statement by appellant in which he admitted having had intercourse with the victim on several occasions. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of rape and incest. OCGA §§ 16-6-1 & 16-6-22; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, supra; Phillips v. State, 172 Ga. App. 864 (1) (324 SE2d 807) (1984).

Appellant’s reliance on Carswell v. State, 179 Ga. App. 56 (345 SE2d 66) (1986), is unfounded. The conviction in that case was not reversed for an insufficiency of the evidence, but because the trial court did not charge the jury that a confession is not sufficient proof of guilt to authorize a conviction without corroboration. Carswell, therefore, has no application here.

2. In his second enumeration of error, appellant contends that the offenses merged, making it improper to convict him of both. Citing Green v. State, 170 Ga. App. 594 (2) (317 SE2d 609) (1984), appellant argues that since incest requires proof of relationship, an element not required for proving rape, rape is an included offense in incest; and that since rape requires proof of force, an element not required for proving incest, incest is included in rape. Therefore, appellant concludes, the offenses merge as a matter of law. Appellant is correct that each offense has at least one element not necessary to prove the other, but his interpretation of Green and, therefore, his conclusion are mistaken. The conclusion to be drawn from the fact that neither can be proved by only the same facts proving the other is that neither is included in the other as a matter of law.

Appellant’s contention that the offenses are merged as a matter of fact because they arose from the same act is controlled adversely to him by McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985), and Copeland v. State, 160 Ga. App. 786 (11) (287 SE2d 120) (1982). Here, as there, the evidence authorized the jury to find that more than one instance of sexual intercourse occurred, permitting conviction for each offense based on separate occasions.

3. Finally, relying again on Carswell, supra, appellant enumerates as error the trial court’s charge on the necessity of corroboration of appellant’s statement. Carswell, however, has nothing to do with this issue: the trial court there wholly omitted the charge on the need for corroboration; the trial court here did charge on the subject.

Decided April 11, 1988

Rehearing denied May 9, 1988.

Ronald L. Enloe, Jr., for appellant.

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

Appellant complains specifically about the trial court’s instruction that proof beyond a reasonable doubt may, but does not necessarily, constitute corroboration. Appellant, however, does not show how that is an incorrect statement of the law or how it may have harmed him. In light of the trial court’s charge that a conviction could not be had on appellant’s statement without corroboration, the charge could only have been helpful to appellant.

The second complaint is that the trial court’s use of the phrase “other evidence” in its instruction regarding corroboration implied to the jury that there was other evidence when, in fact, there was not. In light of our holding in the first division of this opinion, that argument is without merit.

Judgment affirmed.

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


text:
    76140.
    HAYES v. McFARLANE.
    (369 SE2d 286)
   Benham, Judge.

Hayes and his wife were riding in their automobile when McFarlane, who was also driving an automobile, collided with them. Hayes made a claim against Allstate Insurance Company, McFarlane’s insurer, for damage suffered in the collision, and accepted a draft for $630. Hayes subsequently filed a complaint against McFarlane for loss of consortium. McFarlane moved for summary judgment on the claim, and the trial court granted the motion. Hayes brings this appeal, contending that there remain material issues of fact whether the parties reached an accord and satisfaction of the entire cause of action, and whether he impermissibly split his cause of action.

1. Appellant argues that he is not barred from prosecuting his loss of consortium action although he received and accepted payment from McFarlane’s insurance company for the same collision, because the payment previously received was not as a result of a lawsuit. We agree. OCGA § 9-2-5 (a) states that “[n]o plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party.” (Emphasis supplied.) To merit dismissal on that basis, there must have been two lawsuits filed. See, e.g., Cooper v. Public Fin., 146 Ga. App. 250 (1) (246 SE2d 684) (1978). It is undisputed that appellant filed only one lawsuit, the present one, although the cause of action at issue here is the same one at issue in the transaction between McFarlane’s insurance carrier and Hayes. Therefore, it cannot be said as a matter of law that Hayes impermissibly split his cause of action.

Decided April 20, 1988

Rehearing denied May 9, 1988

Willie J. Woodruff, Jr., for appellant.

2. Hayes also takes the position that a question of fact remains whether he and McFarlane reached an accord and satisfaction which would bar his right to recover under the lawsuit. We agree with him. “An accord and satisfaction . . . occurs with ‘the delivery and acceptance of a check as a stated amount in full and complete settlement of a claim, whether the amount of the claim is established or uncertain. . . .’ [Cit.] It is not necessary that a check or the accompanying correspondence contain magic words such as ‘payment in full,’ ‘in full consideration’ or ‘in final payment’ if there is some other documentary evidence to show what the check is intended to cover, i.e., itemization of deductions from the balance alleged to be due. [Cit.] ... As a general rule, whether there is an accord and satisfaction is a jury question. [Cit.]” Commercial Union &c. Co. v. Southeastern Ventilating, 159 Ga. App. 443, 445 (283 SE2d 660) (1981). The record reveals no documentary evidence to show that the check was tendered or accepted in full satisfaction of Hayes’ entire property damage claim, including loss of consortium. The only item that addresses that issue is the affidavit of the insurance claims adjuster who stated that he issued a draft that “was intended to be in payment of [appellant’s] claim for property damage,” but it is not clear whether that was the intention of all parties, or the insurer alone. In addition, the affidavit does not state that the check was in full settlement of all of appellant’s property damage claims, just that it was settlement of a particular claim. That claim is not in the record so that its extent may be ascertained. “Applying the rule that the party moving for summary judgment has the burden of showing the absence of any material facts and that all doubts are resolved against the movant, [cit.], we find that the trial court erred in granting appellee’s motion.” Id. at 446.

Judgment reversed.

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

Jack M. Carey, for appellee.


text:
    74448.
    FOSTER & KLEISER, INC. v. COE & PAYNE COMPANY.
    (369 SE2d 811)
    Decided May 9, 1988.

      Stanley E. Foster, for appellant.

      D. Michael Sweetnam, Eugene R. Simons, for appellee.
   Beasley, Judge.

This court’s judgment reversing the trial court, Foster & Kleiser v. Coe & Payne Co., 185 Ga. App. 284 (363 SE2d 818) (1987), has been reversed by the Supreme Court, Coe & Payne Co. v. Foster & Kleiser, 258 Ga. 161 (366 SE2d 292) (1988). Accordingly, in conformity to the mandate of that decision our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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


text:
    75840.
    BROOKS v. THE STATE.
    (369 SE2d 349)
   Pope, Judge.

Defendant James Lee Brooks was convicted of two counts of forgery in the first degree (OCGA § 16-9-1) and four counts of forgery in the second degree (OCGA § 16-9-2). Upon a showing of indigence, counsel was appointed to represent defendant. In his affidavit of indigence, defendant noted that he wished the assistance of court-appointed counsel but reserved the right to represent himself as a pro se litigant. The original defense counsel filed a motion to withdraw, which was consented to by defendant, and the court appointed a second counsel on March 9, 1987. Nevertheless, defendant persisted in filing motions with the court on his own behalf. On March 17, 1987 defendant filed a pro se demand for speedy trial pursuant to OCGA § 17-7-170. Thereafter, on March 31, 1987, defendant filed a pro se pleading in which he moved to secure the assistance of an expert document examiner as part of his defense. Within the body of the motion, defendant stated his court-appointed counsel had refused his request to seek the services of an expert witness. Although it was not contained within the official record certified by the clerk of the trial court, we note that defendant attached to his pro se appellate brief a copy of a letter dated April 10, 1987 purportedly sent to the trial judge informing the judge that he had filed a pro se motion for the services of an expert witness and requesting the court’s assistance in obtaining such a witness. The brief also contains what appears to be an original letter on the stationery of the trial court judge, signed by the court administrator, informing defendant that the judge could not provide defendant with legal assistance and advising defendant to direct his question and all documents filed in his case to his court-appointed attorney. At trial the police detective testified that he was not informed by defendant’s attorney of the request for an expert handwriting analysis until two weeks before trial. A handwriting sample was promptly obtained but the case was tried, pursuant to defendant’s demand for trial, before the results of a handwriting analysis could be obtained. No motion was made to continue the trial.

In his pro se appeal, defendant maintains he was improperly denied the right to present expert testimony as a part of his defense. Defendant also alleges numerous other errors, including the assertion that he was denied effective assistance of counsel at trial.

1. A criminal defendant no longer has a right under the constitution of this state to “hybrid” representation, partly by himself and partly by counsel. Heard v. State, 173 Ga. App. 543 (1) (327 SE2d 767) (1985). Neither is such a right provided by federal law. United States v. Shea, 508 F2d 82 (5th Cir.), cert. den., 433 U. S. 847 (1975). Defendant in this case was provided with court-appointed counsel and did not waive his right to counsel; his attempt to preserve his right also to represent himself was void. The court did not err in failing to rule on defendant’s pro se request for an expert witness and the court properly instructed defendant to direct his request to his court-appointed counsel. We find no merit in defendant’s first two enumerations of error.

2. Defendant’s original appeal was dismissed as untimely made because it was filed before the lower court ruled on the pending motion for new trial. Once the motion for new trial was denied, we reinstated the appeal for consideration on the merits by order dated October 26, 1987. This reinstatement effectively docketed the case for the January 1988 term of court. Pursuant to Rule 27 (a) of the Rules of the Court of Appeals, enumerations of error must be filed within twenty days after the case is docketed. By pleading entitled “Supplemental Brief’ the defendant attempted to add an additional eight enumerations of error to his reinstated appeal setting forth two original enumerations of error. Technically, these additional enumerations of error were filed outside the twenty-day period for filing enumerations of error. However, where an indigent defendant files a pro se appeal, we are inclined to grant leeway in the requirement for compliance with procedural rules and also to examine the record for error. After examining the record and considering defendant’s additional enumerations of error, we find no merit in any remaining alleged errors, save one. Defendant maintains he was denied effective assistance of counsel by his trial counsel’s failure to request a handwriting analysis by an expert until after the case had appeared on the trial docket so that it was impossible to obtain the results of that analysis in time to present it as evidence at trial. This is the gist of all defendant’s improperly filed pro se pleadings and communications with the trial court. It appears from the record that defendant repeatedly requested a handwriting analysis but his trial counsel did not make this request known until after a demand for speedy trial had been made and the case had been docketed for trial. No motion for continuance or other waiver of the demand for speedy trial was made.

Decided May 9, 1988.

James L. Brooks, pro se.

Joseph H. Briley, District Attorney, A. C. Martinez, Jr., Assistant District Attorney, for appellee.

The issue of effectiveness of trial counsel was not raised in defendant’s motion for new trial. However, defendant was represented in the motion for new trial by the same attorney who represented him at the trial of the case. In such a situation, where the defendant is represented by different counsel on appeal, he may raise for the first time on appeal the issue of ineffectiveness of trial counsel. See, e.g., Hambrick v. State, 256 Ga. 148 (5) (344 SE2d 639) (1986); Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986). In the case now before us, defendant may properly raise the issue of ineffective assistance of trial counsel since he is now proceeding pro se. Failure of defendant’s court-appointed trial counsel to secure an expert witness may evince a conscious choice of trial tactics or it may indicate ineffective representation. See Heard v. State, 173 Ga. App. at 545. We remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. If the trial court finds defendant was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to defendant, defendant’s right to appeal that order within thirty days is preserved. See Midura v. State, 183 Ga. App. 523, 526 (359 SE2d 416) (1987) (Carley, J., concurring specially).

Judgment affirmed and case remanded.

Benham, J., concurs. McMurray, P. J., concurs in judgment only.


author: Carley, Judge. Deen, Presiding Judge,

text:
    75803.
    KEYSER v. THE STATE.
    (369 SE2d 309)
   Carley, Judge.

Appellant was tried before a jury on an accusation which charged him with several misdemeanor offenses. The offenses all arose out of a series of incidents involving appellant, his neighbors, and several police officers. The jury returned verdicts of guilty on three counts of simple battery, one count of driving under the influence, and one count of having an “expired tag.” Appellant appeals from the judgments of conviction and sentences entered on the jury verdicts.

1. Appellant filed a motion to suppress, wherein he contended that the State had attained certain evidence as the fruit of his alleged illegal warrantless arrest. The trial court’s denial of that motion is enumerated as error.

The record shows that, subsequent to the filing of the accusation, appellant filed a written motion to suppress and that a pre-trial hearing on that motion was set. However, the motion was dismissed when neither appellant nor his counsel appeared at the scheduled hearing, or moved for a continuance, or filed a conflict letter with the court. See Jacobs v. State, 133 Ga. App. 812 (1) (212 SE2d 468) (1975). At trial, the trial court nevertheless agreed to hear evidence outside the presence of the jury as to the existence of probable cause for appellant’s arrest. See generally Ellis v. State, 164 Ga. App. 366 (296 SE2d 726) (1982). The evidence which was produced at this hearing authorized the trial court to find that probable cause to arrest appellant for DUI did exist at the time that he was arrested for that offense. “[I]f an officer, while in the presence or vicinity of the accused, acquires ‘probable cause’ (federal) to arrest the accused outside his or her home, and fails to make such arrest, there is likely to be a failure of justice as a matter of law if the officer is required to delay the arrest until a warrant is obtained. That is to say, we find the state rule to be the same as the federal rule. An arrest and search, legal under federal law, are legal under state law.” Durden v. State, 250 Ga. 325, 327 (1) (297 SE2d 237) (1982). See also Stola v. State, 182 Ga. App. 502, 503 (1) (356 SE2d 222) (1987).

There was also evidence adduced at the hearing from which the trial court was further authorized to find that appellant’s arrest had occurred on the front porch of his house, after he had complied with the request of a police officer to step outside. An arrest of appellant under such circumstances would not constitute an arrest which was made inside his home. Mincey v. State, 251 Ga. 255, 260 (6) (304 SE2d 882) (1983). See also United States v. Santana, 427 U. S. 38, 41 (II) (96 SC 2406, 49 LE2d 300) (1976) (holding that, for Fourth Amendment purposes, one who is “in the threshold of [his] dwelling . . . [is] in a ‘public’ place” and not within the dwelling). Accordingly, appellant’s reliance on Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639) (1980), Welsh v. Wisconsin, 466 U. S. 740 (104 SC 2091, 80 LE2d 732) (1984), and similar cases as authorizing the grant of his motion to suppress is misplaced. All of those cases involved the warrantless entry by the police into the private living quarters of the accused for the purpose of making an arrest or of conducting a search therein. Appellant’s cited cases are, therefore, factually distinguishable and they are, for that reason, legally inapposite. Compare Griffith v. State, 172 Ga. App. 255, 256 (1) (322 SE2d 921) (1984). It follows that the trial court did not err in denying appellant’s motion to suppress.

2. Appellant enumerates the general grounds as to his conviction for operating a vehicle with an expired tag. Appellant was charged with violation of former OCGA § 40-2-8 (a), which provided, in pertinent part, as follows: “Any person owning or operating any vehicle described in Code Section 40-2-20 on any public highway or street after April 1 of each year without complying with that Code section shall be guilty of a misdemeanor. ...” (Emphasis supplied.) The State presented sufficient evidence that appellant had operated a motor vehicle with an expired Mississippi tag on a public street of Georgia. The issue to be resolved is whether the State presented sufficient evidence to authorize a finding that that automobile was one which is “described in OCGA § 40-2-20. . . .”

A vehicle “described in OCGA § 40-2-20” is one which is required to be registered “as provided in [Chapter 2 of Title 40 of OCGA]. . . .” OCGA § 40-2-20. The evidence did not show to whom the vehicle had been registered in Mississippi or whether appellant had recently purchased it. However, the evidence of record did authorize a finding that, regardless of who the current owner of the vehicle might actually be, the vehicle was not an automobile which was otherwise exempt from the requirement of registration in this State. See OCGA § 40-2-90 (b) (3). The evidence would, therefore, show that appellant had operated a vehicle “described in OCGA § 40-2-20” on a public street of this State. Accordingly, our review of the entire record shows that, from the evidence presented at trial, a rational trier of fact could reasonably have found appellant guilty beyond a reasonable doubt of violating OCGA § 40-2-8. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. In numerous enumerations appellant raises the general grounds with regard to his three simple battery convictions and his DUI conviction.

The argument advanced in support of these enumerations is premised, for the most part, upon an alleged insufficiency in the evidence which would exist if the trial court had granted appellant’s motion to suppress. As we have held in Division 1, however, the trial court did not err in denying appellant’s motion to suppress such evidence. Our review of the entire record reveals that, from the evidence presented at trial, a rational trior of fact could reasonably have found appellant guilty beyond a reasonable doubt of each of the four charges at issue. Jackson v. Virginia, 443 U. S. 307, supra.

Decided April 28, 1988

Rehearing denied May 11, 1988

Billy L. Spruell, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Bruce D. Horn-buckle, Assistant Solicitors, for appellee.

4. We have considered appellant’s remaining enumerations of error but find them either to be moot or to be without merit.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

In two of the cases cited in the majority opinion, one judge concurred in the judgment only (J/O). Those two cases are Stola v. State, 182 Ga. App. 502 (356 SE2d 222) (1987), and Griffith v. State, 172 Ga. App. 255 (322 SE2d 921) (1984). A J/O is somewhere between a special concurrence and a dissent, and clips and consigns a case to a sort of no man’s land of case law. Like high blood pressure, it is a silent case killer or crippler, literally snuffing or sucking dry the spirit of all precedential life out of a case sub silentio, without any explanation. Although a J/O may be a handy widget for use as a convenient, quick, quasi-dissent, or case crippler, for busy judges, this writer believes that setting forth reasons in a special concurrence or dissent is more beneficial to the bench and bar. Otherwise, we should relegate most cases involving J/O’s to be unreported in order to lessen the possibility of reciting them in future cases.

Because of a total lack of factual exposition in Division 1 of this important case involving convictions for the serious offenses of DUI and the three counts of battery, I cannot concur fully with the majority opinion.


text:
    76084.
    INTERNATIONAL BUSINESS INVESTMENTS, INC. v. ARCHER MOTOR COMPANY, INC.
    (369 SE2d 268)
   Pope, Judge.

Plaintiff International Business Investments, Inc. instituted this action against defendant Archer Motor Company, Inc. seeking to recover a real estate commission allegedly due under the terms of a Broker Agreement which granted plaintiff the exclusive right to sell, exchange, or lease defendant’s used car business located in Morrow, Georgia. Although the agreement commenced on May 27, 1986 and was to be in effect to and including May 27, 1987, in December 1986, defendant, acting through another agent, relocated the business and sold the real property on which the business was located for the sum of $235,000. The present controversy arose when defendant refused to pay plaintiff a commission following this sale.

On July 30, 1987 defendant filed its motion for summary judgment in support of which it submitted the affidavit of its then president, Betty Archer, widow of the former president of defendant who had executed the Broker Agreement. This affidavit, in pertinent part, provided that Ms. Archer was “familiar with the negotiations between my late husband . . . and [plaintiff; that] it was never the intention of the corporation to include in any listing contract any real property [; and] it was always understood that the business as a going business and its assets were all that was included.” In opposition to defendant’s motion, plaintiff filed the affidavit of its employee and vice-president, Franklin J. Glunn, who averred that “it was never understood by me or my company that the listing did not include the real property. As the Agreement indicates, there was a listing for the entire business including the real property and the personalty.” By order dated October 8, 1987 the trial court granted summary judgment to defendant, based on its finding that the agreement unambiguously excluded the listing of the real property on which the business was located. Plaintiff appeals, enumerating as error this finding by the trial court.

Defendant argues that the trial court correctly found no ambiguity as to the listing of the real property because a value was not assigned to the phrase “real property” in the section which stated, “Only the assets for which values are indicated below are included for sale under this agreement.” Plaintiff, however, in arguing that the agreement did provide for the listing of real estate, points to another section of the agreement which stated “Total Price Real Property: $190,000.00” and included certain seller financing terms. Immediately preceding this section, and immediately following the “asset” section, the agreement provided a space for “Total Price Listed Assets (Business Only — No R. E.) $600,000.” The agreement also provided a leasing commission “[i]f real property owned by Seller is leased to Buyer” of 5 percent of the gross rental for the duration of the lease, or any renewals thereof. Lastly, the contract gave the “Broker the sole, exclusive and irrevocable right to sell, exchange, lease or otherwise dispose of the above described business, assets, rights and property or any portion thereof. . . .”

Review of these provisions shows that the underlying real property is clearly listed in certain sections of the agreement and clearly excluded in others; hence, we must conclude that the trial court erred as a matter of law in finding that the broker agreement unambiguously excluded the listing of the real property on which the business was located. “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. Travelers Ins. Co. [v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986)].” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). The particular statutory rules applicable to the contract in the instant case are found in subsections (1), (4) and (5). These subsections deal with the admissibility of parol evidence; the preference for a construction which will uphold a contract in whole and in every part; and the principle that where the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is preferred.

The parol evidence submitted in the present case, consisting of contradictory affidavits, sheds little light on the ambiguity in the contract now before us. As to the second consideration, at a minimum, it must be acknowledged that language concerning the sale or lease of the real property, and a price listed for the value thereof, was included in the agreement. However, the fact that the real property was excluded from the list of assets which, by its terms, was to include all assets offered for sale under the agreement cannot be ignored. Likewise, construing the contract against the plaintiff does not resolve the ambiguity present here. Hence, although the record in the case before us does not affirmatively show whether the trial court went through the process prescribed in Travelers, supra, our own review of the agreement, and our own application of the pertinent rules of construction, persuade us that an ambiguity does exist as to whether, or not, the real property was to be included along with the other components of defendant’s used car business under the terms of the listing agreement. Accordingly, the grant of summary judgment to defendant must be reversed and this issue submitted to the jury for resolution. Accord Travelers Ins. Co., 180 Ga. App. 520; Steinemann v. Vaughn & Co., 169 Ga. App. 573 (1) (313 SE2d 701) (1984).

Judgment reversed.

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

On Motion for Rehearing.

On rehearing defendant argues, without citation of authority, that the agreement in the present case is unenforceable as it concerns the sale of real property because said property was not described with the same specificity as is required in a contract for the sale of land or a deed conveying real estate. However, it has long been the rule in this state that “ ‘(t)he description of property placed in the hands of a broker for sale (does not need) to be as definite and complete as that which should be made in deeds of conveyance.’ Crawford v. English, 26 Ga. App. 563, 568 (106 SE 621) (1921).” Campbell v. Mut. Svc. Corp., 152 Ga. App. 493, 497 (263 SE2d 202) (1979); Orr v. Smith, 102 Ga. App. 40, 43 (115 SE2d 601) (1960). Consequently, we hold that this argument provides no basis for affirmance of the trial court’s grant of summary judgment to defendant.

Decided April 6, 1988

Rehearing denied May 11, 1988.

Albert J. DeCusati, M. David Merritt, for appellant.

Howard P. Wallace, for appellee.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76111.
    MATHIS v. WATSON.
    (369 SE2d 291)
   Sognier, Judge.

Judith Mathis, individually and as next friend of James Phillips, brought suit against Billy Watson seeking damages for injuries Phillips incurred when he was pinned against a feed mill by a pickup truck driven by Watson while working on Watson’s farm. The jury returned a verdict in Watson’s favor and Mathis appeals.

The evidence adduced at trial shows that Phillips was directing appellee as appellee was backing up a pickup truck toward the feed mill for unloading. Phillips testified he called out “whoa” and indicated by hand signals for appellee to stop. Appellee testified he was looking carefully in his rear view mirror and was listening to Phillips’ instructions but saw and heard nothing until he felt a little “bump.” The pickup truck pinned Phillips against the feed mill, damaging his knee.

1. Appellant contends the trial court erred by giving a jury instruction on magnified or exaggerated damages. “ ‘ “The well established rule is that where the court incorrectly instructs the jury as to the measure of damages to be applied, if the jury exonerates the defendant so that the consideration of the measure of damages is eliminated from the case, the instructions given, even if erroneous, cannot be held to prejudice the plaintiff’s cause.” [Cit.]’ [Cit.]” Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987). Although appellant argues that the charge was harmful because it had an adverse effect on the jury’s consideration of Phillips’ credibility generally and thus was related to the initial question of liability, “taking the charge as a whole, [cit.], it is clearly evident that the court was instructing solely on the issue of damages. It had totally left the subject of liability and entered the arena of damages, and the charge was confined to that latter subject.” Id. at 802 (Beasley, J., concurring specially). Thus, we find no reversible error in the giving of this charge.

2. We do not agree with appellant that there was no evidence to support the trial court’s charge instructing the jury that appellant could not recover from appellee if, in the exercise of proper care for his own safety, Phillips could have avoided the consequences of appellee’s negligence. The jury was authorized under the evidence to believe that Phillips chose to position himself between the pickup truck and the feed mill after having performed the same procedure numerous times, and that Phillips failed to step out of the way when the truck continued inching backwards after he had shouted for it to stop, even though the truck was still three to four feet away at that time. Thus, we find no error in this enumeration. See generally Bell v. Camp, 109 Ga. App. 221, 224 (3) (135 SE2d 914) (1964).

3. Likewise, we find the evidence detailed above constituted some evidence upon which to base the trial court’s charge on assumption of the risk and, accordingly, the trial court did not err by so charging. See generally Telligman v. Monumental Properties, 172 Ga. App. 783 (1) (323 SE2d 888) (1984).

4. Appellant contends the verdict was not authorized by the evidence. “The evidence was conflicting, and did not demand a verdict in appellant[’s] favor. ‘Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and this case was not so plain and indisputable as to justify invading the jury’s province. [Cit.] There being some evidence to support the jury’s verdict, we will uphold the judgment. [Cit.]’ [Cit.] This court considers only the sufficiency of the evidence, not its weight. [Cit.]” Parr v. Pinson, 182 Ga. App. 707 (1) (356 SE2d 740) (1987). The evidence was sufficient to support the verdict.

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring with the judgment of affirmance of the trial court, this writer offers two observations.

1. In Division 1, the majority opinion relies upon Minter v. Leary, 181 Ga. App. 801 (354 SE2d 185) (1987), which has no precedential value concerning the issue of instructing the jury on exaggerated damages, because Minter was in that regard only a two-judge case. (One judge concurred specially without concurring with the majority opinion’s disposition of that issue.) I agree with the proposition of law for which the majority opinion cites Minter, having authored Jackson v. Miles, 126 Ga. App. 320 (190 SE2d 565) (1972) which was relied upon in Minter. However, this court should give Minter precedential value with a full-panel approval of the case, rather than presenting it as binding authority.

Decided April 28, 1988

Rehearing denied May 11, 1988

J. Converse Bright, for appellant.

F. Thomas Young, Daniel L. Studstill, James B. Thagard, for appellee.

2. In Division 4, the majority opinion, quoting from Parr v. Pinson, 182 Ga. App. 707 (356 SE2d 740) (1987), states that “‘[q]uestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury . . .’” Without more, this quotation may mistakenly suggest that the law of contributory negligence is in effect in this state rather than that of comparative negligence. See Ohio S. Express Co. v. Beeler, 110 Ga. App. 867, 868 (140 SE2d 235) (1965). The present legal status of the doctrine of contributory negligence is that of “defensive concept.” See Edwards v. Trammell, 187 Ga. App. 22 (369 SE2d 288) (1988).


text:
    74065.
    GRESHAM v. DEPARTMENT OF HUMAN RESOURCES.
    (369 SE2d 812)
   Banke, Presiding Judge.

The Supreme Court has held in this case that, particularly since “there has not even been an adjudication of paternity,” the Department of Human Resources could not seek to impose liability on the appellant for public assistance benefits paid on behalf of his putative child without first giving him notice of its intent to do so; paradoxically, however, the Court has further held that the appellant was not entitled to an adjudication of paternity. In accordance with the Supreme Court’s decision, see Gresham v. Ga. Dept. of Human Resources, 257 Ga. 747 (363 SE2d 544) (1988), our previous decision in this case, reported at 184 Ga. App. 17 (360 SE2d 736) (1987), is vacated, and the case is remanded to the trial court for the entry of a judgment consistent with the Supreme Court’s opinion.

Judgment vacated and case remanded with direction.

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

Decided May 11, 1988.

William R. Hurst, for appellant.

Lewis R. Slaton, District Attorney, Rita D. Coleman, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary Foil Russell, Assistant Attorney General, for appellee.


author: Sognier, Judge.

text:
    76255.
    REESE v. REESE.
    (369 SE2d 351)
   Sognier, Judge.

Mary O’Hara Reese filed an application for year’s support as the widow of Charles Wayne Reese in the probate court of Richmond County. The administrator for the estate, Charles Douglas Reese, filed a caveat to the return of the appraisers setting aside a year’s support, asserting that the decedent and Mary O’Hara Reese had divorced approximately two years prior to the decedent’s death and thus she was not the decedent’s legal widow. The probate court, after a hearing on the issue, granted the application for year’s support, whereupon appeal was taken by the administrator to the superior court of Richmond County. Upon trial, the jury returned a special verdict finding that Mary O’Hara Reese was not the common law wife of the decedent and not entitled to year’s support. The trial court denied Mary O’Hara Reese’s motion for a new trial and she appeals.

1. Appellant contends the trial court erred by denying her motion for a new trial on the general grounds. There was evidence adduced at trial that when appellant contacted the funeral home to make arrangements for the decedent’s burial, she identified herself to the funeral home employee as “Mrs. O’Hara,” the “ex-wife” of the decedent. Other evidence admitted at trial included three checks written by the decedent within approximately a month before he died that were made payable to and endorsed by “Mary O’Hara” as well as various legal documents, such as deed documents, signed within months of the decedent’s death by appellant, denominating herself as “Mary O’Hara.” “ ‘We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.] Where the testimony of the plaintiff and the defendant is in conflict, the jury is the final arbiter [cit.], and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. [Cits.]’ [Cit.]” Concrete Constr. Co. v. City of At lanta, 176 Ga. App. 873, 874 (2) (339 SE2d 266) (1985). There being some evidence to support the finding of the jury, the trial court did not err by denying appellant’s motion for new trial on the general grounds.

Decided May 11, 1988.

Christopher G. Nicholson, for appellant.

A. Stephenson Wallace, for appellee.

2. Appellant contends the trial court erred by denying her motion for new trial, as amended, on the basis that the trial court erroneously allowed appellee the opening and closing argument to the jury. “The right to open and conclude turns upon the question of evidence, that is, involves the question upon whom the burden of proof rests. If the burden was upon the plaintiff, then the plaintiff had that right to open and conclude. [Cits.]” Hodsdon v. Whitworth, 162 Ga. App. 793, 794 (1) (293 SE2d 70) (1982). Appellee here was the caveator to the return of the appraisers setting aside a year’s support and to the probate court’s judgment in favor of appellant on her application. In Daniel v. First Nat. Bank of Claxton, 50 Ga. App. 632, 633 (2) (179 SE 152) (1934), it was stated that “[u]pon the trial of an issue in the superior court formed by caveators ... to the return of appraisers setting aside a year’s support, the burden of proof is upon the caveators, and they are entitled to open and conclude the argument.” We find Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37 (227 SE2d 865) (1976), cited by appellant, to be distinguishable from the case sub judice in that appellant, unlike the parties in Weeks, was entitled to a prima facie presumption that the report of the appraisers setting a sum as year’s support was correct and thus, “[a]fter such report is in evidence, regardless of who the caveator is, the applicant is prima facie entitled to the amount found by them and the burden is necessarily upon the objector to convince the jury otherwise.” Rawlins v. Rawlins, 150 Ga. App. 534, 536 (2) (258 SE2d 187) (1979).

Since we find the trial court did not err by allowing appellee the opening and the conclusion, Daniel, supra, we need not address whether appellant timely asserted her right to make the opening and closing argument so as to call into effect “ ‘[t]he rule . . . that this right to open and conclude must be claimed before testimony by the other party is submitted.’ [Cits.]” Intl. Indent. Co. v. Coachman, 181 Ga. App. 82, 90 (6) (351 SE2d 224) (1986).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.