author: Pope, Judge. Birdsong, Presiding Judge,

text:
    A91A2131.
    McDONNELL et al. v. ROY E. BEATTY & ASSOCIATES, INC.
    (418 SE2d 95)
   Pope, Judge.

Plaintiffs Marjette Lacey McDonnell and Mitchell Todd Lacey are the surviving children of the late Dr. J. Allen Lacey and Meredith D. Lacey. Dr. and Mrs. Lacey were killed when an airplane piloted by Dr. Lacey crashed soon after takeoff from Peachtree-DeKalb Airport in DeKalb County on October 1, 1989. Plaintiffs filed suit against defendant Roy E. Beatty & Associates, Inc., alleging that the crash occurred as a result of instrument failure due to defendant’s faulty maintenance of the plane. Defendant moved to dismiss the complaint on the ground that it was not subject to personal jurisdiction in Georgia. The trial court granted defendant’s motion to dismiss and denied plaintiffs’ motion for leave to conduct additional discovery. Plaintiffs appeal.

The record shows defendant is a Florida corporation. Defendant owned the plane and leased it to Lacey-Champion Carpets of Florida, Inc., another Florida corporation, of which Dr. and Mrs. Lacey were officers and shareholders. The plane was used primarily by the Laceys for personal trips. Pursuant to the terms of the lease, defendant had the duty to provide service and maintenance for the plane. Defendant presented evidence that its only place of business is in Florida; that it never operated in Georgia and never bought a plane from or sold a plane to anyone in Georgia; that it never conducted or solicited business in Georgia or engaged in any persistent course of conduct in Georgia; that it never derived substantial revenue from goods used or services rendered in Georgia; and that it never engaged in consulting work or airplane management services in Georgia. The trial court found defendant’s sole contact with Georgia was an isolated appraisal of an aircraft performed almost one year after the crash, and that this activity was neither substantial nor sufficiently related causally to the plaintiffs’ claim to trigger personal jurisdiction.

Plaintiffs, however, argue that defendant benefitted from their parents’ use of Georgia airport facilities. Plaintiffs point out that Mr. Roy E. Beatty, sole shareholder and president of the defendant corporation, was a close personal friend of their father. They argue that because Mr. Beatty was allowed to fly the plane frequently for his own use, because he accompanied Dr. Lacey on several pleasure trips to Georgia and because he knew when the defendant leased the plane that the Laceys would use the plane in Georgia then jurisdiction may be exercised over the defendant corporation because Georgia is a convenient forum in which to litigate the matter.

1. We affirm the trial court’s dismissal of the complaint for lack of personal jurisdiction. The defendant in this case is a Florida corporation which merely leased an airplane to another Florida corporation. The lessee of the plane flew it to Georgia where it crashed. It is undisputed that defendant lessor conducted no business and engaged in no activity in Georgia except for an unrelated act after the crash occurred. We cannot justify the imposition of jurisdiction over the nonresident defendant because of the unilateral acts of the lessee, over which the defendant had no control.

A nonresident defendant may be held liable for a tortious injury which occurred in this state only under two circumstances: either because the injury was due to a tortious act committed by the defendant within the state (OCGA § 9-10-91 (2)) or because the injury was caused by an act or omission of the defendant outside the state and defendant “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state . . . .” OCGA § 9-10-91 (3).

The Georgia Long-Arm Statute is different from the corresponding statute in some other states because it “requires that an out-of-state defendant must do certain acts within the State of Georgia before [it] can be subjected to personal jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513) (1987). In Georgia, a due process analysis is appropriate only after it is first established that the nonresident defendant committed one of the acts described in the Long-Arm Statute. Thus, the due process analysis advocated by the dissenting judges is inappropriate because the record shows the defendant in this case did not commit any act which would subject it to jurisdiction in Georgia.

In opposing the motion to dismiss, plaintiffs relied on the fact that the owner and president of the defendant corporation accompanied the owner and president of the lessee of the airplane on several pleasure trips to Georgia. Plaintiffs argue these trips somehow show that the defendant corporation engaged in activity in Georgia. These trips, however, were purely personal and arose out of the friendship between Mr. Beatty and Dr. Lacey. They in no way established a course of conduct by the defendant corporation and in no way resulted in substantial revenue to the defendant corporation. Moreover, even when Mr. Beatty accompanied Dr. Lacey on personal trips to Georgia, it was the lessee (by and through Dr. Lacey) and not the defendant corporation which controlled the plane. The dissenting opinion jumps to the conclusion that Mr. Beatty was the “alter ego” of the defendant corporation. Even if he was, it cannot be said that Mr. Beatty was acting as the alter ego of the corporation on these personal trips. Mr. Beatty’s personal hunting trips to Georgia or his acts of friendship in accompanying Dr. Lacey to visit family members in Georgia in no way benefitted the corporation. Moreover, the alleged negligent act of the corporation was the improper maintenance of the airplane. The plaintiffs do not contend Mr. Beatty personally serviced the airplane. Instead, the plane was serviced by qualified aviation mechanics in the employ of the corporation. It is not Mr. Beatty, individually, who is sued, but the corporation. And the facts do not support the exercise of jurisdiction over the corporation.

The defendant’s knowledge that the lessee planned to use the plane in Georgia provides no basis on which to attribute the lessee’s acts to the defendant. All of the acts which occurred in Georgia were merely the unilateral acts of the injured party. In this case, the plane crashed in Georgia. But that was not an act of the defendant. Neither was the flying and landing of the plane in Georgia an act of the defendant. The plane was under the exclusive control of the lessee. Defendant was, in essence, an airplane dealer and the fact that it was foreseeable that the party to whom it leased the plane would fly the plane to Georgia is an insufficient basis upon which to impose jurisdiction in Georgia. To do so would violate the nonresident defendant’s right to due process because it does not establish the required minimum contacts with this state. The facts of this case are similar to those in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (100 SC 559, 62 LE2d 490) (1980), in which the United States Supreme Court held that Oklahoma did not have jurisdiction over an automobile dealer and a regional automobile distributor, both located in New York, simply because it was foreseeable that the automobile sold to plaintiffs in New York could be transported to Oklahoma and involved in an accident there. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297. The facts establish that defendant committed no tortious act in Georgia out of which the injury arose. Thus, jurisdiction may not be imposed pursuant to subsection (2) of the Long-Arm Statute.

Neither can it be said that the defendant conducts business in Georgia or derives substantial revenue “from goods used or consumed or services rendered in the state,” as set forth in subsection (3) of the Long-Arm Statute. The plane was leased for a flat monthly rate; no additional charge was made for miles flown or hours of use. Defendant lessor made no more money when the plane was flown to Georgia, or any other jurisdiction, than it made when the plane was sitting idle in Florida. Unlike the facts in this court’s recent opinion of Showa Denko K.K. v. Pangle, 202 Ga. App. 245 (414 SE2d 658) (1991), this is not a case in which the defendant introduced a product into the stream of commerce and therefore availed itself of the market for its product in Georgia. Thus, the plaintiffs’ attempt to analogize this case to “stream of commerce” cases is misplaced. Rather, defendant merely leased a plane in Florida to another Florida resident. Naturally, the lessee could use the plane anywhere it wished. In this case, the lessee unilaterally chose to use the plane in Georgia. That the defendant knew the lessee would use the plane in Georgia makes no difference: the act of bringing the plane into this forum cannot be attributed to defendant lessor, nor did it benefit the defendant in any way.

It is true, as plaintiffs argue, that a single event may be sufficient to impose jurisdiction over an out-of-state defendant under the Long-Arm Statute, but that event must be an act of the defendant. “[A] single act by the nonresident in the forum . . . may satisfy the ‘minimum contacts’ test.” (Emphasis supplied.) Shellenberger v. Tanner, 138 Ga. App. 399, 404 (227 SE2d 266) (1976). Jurisdiction is not appropriate where, as here, the nonresident defendant’s only connection with the state was due to the unilateral acts of the plaintiff. “[A] mere demonstration that an injury has occurred here due to an act or omission by a nonresident outside this forum does not necessarily show that the defendant had such ‘contact’ with Georgia to confer jurisdiction over him, i.e., that he has purposely availed himself of the privilege of conducting some activity here rather than being merely involved in a ‘connection’ with a forum plaintiff due to [the injured party’s] unilateral actions within the state.” Id. at 409.

Contrary to plaintiffs’ argument, the facts involved in this court’s earlier opinion in Value Engineering v. Gisell, 140 Ga. App. 44 (230 SE2d 29) (1976) are distinguishable and the holding in that case does not require the exercise of jurisdiction in this case. In Value Engineering, the nonresident defendant “took affirmative action in introducing an allegedly defective and dangerous article into the stream of commerce” by shipping the goods via a bill of lading indicating that they would be routed through Georgia. Id. at 47. In this case, however, the plane ended up in Georgia through no affirmative action of the defendant. The plane was not transported into Georgia by the defendant on its way to delivery to a customer in another state. Consequently, we agree with the trial court that jurisdiction cannot be imposed.

2. We also affirm the trial court’s denial of plaintiffs’ motion for leave to conduct additional discovery which was filed after the court had already granted defendant’s motion to dismiss. The motion to dismiss was filed January 24, 1991. The trial court issued a consent order extending the time in which plaintiffs could respond to the motion. In plaintiffs’ brief in response to the motion to dismiss, filed March 19, 1991, plaintiffs asked the trial court to withhold ruling on the motion for 60 days until further discovery could be conducted. The transcript of the hearing on the motion, held May 8, 1991, indicates plaintiffs requested no further continuance before ruling on the motion. The order dismissing the case was issued June 25, 1991, over 90 days from the date plaintiffs’ brief was filed requesting an additional 60 days in which to pursue further discovery. Plaintiffs were afforded a reasonable opportunity to conduct discovery in response to defendant’s motion and we fail to see how plaintiffs were prejudiced by the trial court’s denial of the motion for leave to conduct additional discovery.

Judgment affirmed.

Sognier, C. J., Carley, P. J., Beasley, Cooper, Andrews and Johnson, JJ., concur. McMurray, P. J., and Birdsong, P. J., dissent.

Birdsong, Presiding Judge,

dissenting.

The facts in evidence are not as they have been perceived by the majority and the legal analysis is, in our opinion, incorrect.

The majority has failed to follow the rule in Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) as to construction of the evidence on appeal of these cases. The deposition of Mr. Roy E. Beatty, Sr., establishes that defendant corporation, of which he is the sole shareholder, bought this airplane with Dr. Lacey’s money, in January 1989, at the request of Mr. Beatty’s personal friend Dr. Lacey, and for the use of Dr. and Mrs. Lacey in their personal affairs, which, as defendant corporation immediately knew, foresaw, expected and intended, would include frequent visits to Dr. Lacey’s mother in Calhoun, Georgia, and the couple’s daughter in Atlanta and other pleasure trips in Georgia. Further, defendant’s arrangement with Dr. Lacey was that in exchange for defendant’s serving as the registered owner with the Federal Aviation Agency (F.A.A.) for tax purposes and providing maintenance to the plane, defendant’s president Mr. Beatty would have full use of the plane for his own purposes. Although defendant bought the plane in January 1989, and from that time both Dr. Lacey and Mr. Beatty used it regularly, including in Georgia, the lease was not entered into until April 1989.

When asked why the defendant purchased this plane, Mr. Beatty testified: “I am in the aviation business. Specifically for Allen Lacey.” Asked whether “he” was acting “as Dr. Allen Lacey’s agent to purchase that plane,” Mr. Beatty replied “No, just a friend.” He testified that the defendant was not in the market for an additional plane and bought this plane for Dr. Lacey at his request. Mr. Beatty testified that the business of defendant, is “aircraft consulting and management and appraising service.” He described this to mean “not much ... to consult with people in the purchase of an aircraft to do the job that they have conceived they want to do, managing their flight department such as maintenance, flight crews, et cetera. . . .”

Mr. Beatty testified that Dr. Lacey’s carpet business was closed out “by the time he bought — or we bought that airplane.” Defendant purchased this plane because Dr. Lacey wanted a large plane; Mr. Beatty had conversations with Dr. Lacey regarding the type of aircraft Dr. Lacey wanted to buy.

Mr. Beatty never testified he was an “airplane dealer.” As to who held title to the plane, he said there is no title to a plane but that defendant was registered as owner with the F.A.A., and “[a]n aircraft dealer doesn’t come under the same heading as a private owner. A private owner has to pay a Florida sticker tax.” Although defendant was the registered owner, “Dollars and cents was Dr. Lacey’s money.”

Prior to the purchase of the airplane, Mr. Beatty knew that Dr. Lacey was originally from Georgia; that Dr. Lacey took frequent trips to Calhoun, Toccoa and Atlanta, Georgia to see relatives; that Dr. Lacey’s parents lived in Calhoun; and that Dr. Lacey would fly the plane to and in Georgia.

Mr. Beatty testified the defendant received no financial or business benefit from its purchase of this plane and received no remuneration for maintenance of the plane except reimbursement of expenses. He said he received no benefit except friendship from Dr. Lacey’s lease, and he did “not particularly” consider it a benefit that the plane was available for his use. But when he earlier testified that he (the corporation) did not make money off this lease and the maintenance cost him money, and when asked why he would “do such a strange thing,” he said: “I had the use of his airplane if I needed to use it for just putting fuel in it.”

When asked why his sons T. J. or Roy Jr. would accompany Dr. Lacey on a flight to Georgia, Mr. Beatty stated: “We prefer to have two people on board if there’s weather involved.”

Although defendant purchased the plane in January 1989, the lease was not entered into by Mr. Beatty and Lacey Champion of Florida until April 1989. The flight logs show that on January 14-15, 1989, Mr. Beatty and Dr. Lacey flew the plane with three passengers. On January 22, Dr. Lacey and his friend Dr. Barnett flew the plane to Albany, Georgia, apparently on a hunting trip. On January 27-29, Dr. Lacey and Mr. Beatty flew to Calhoun, Georgia; Mr. Beatty testified the only reason he ever flew to Calhoun with Dr. Lacey was to visit Dr. Lacey’s mother. On February 18-19, Dr. Lacey and Dr. Barnett again flew to Albany. On February 22-23, Mr. Beatty and Dr. Lacey again flew to Calhoun. On March 7, Dr. and Mrs. Lacey and Barnett flew to Peachtree-DeKalb Airport in Atlanta. On March 25, Dr. Lacey and Mr. Beatty flew to Toccoa, Georgia. On March 31-April 2, Dr. Lacey flew to Calhoun, then from Calhoun to Atlanta.

After the lease was formed in April 1989, Mr. Beatty and Dr. Lacey flew to Calhoun, Georgia, on April 18. On June 1, Dr. Lacey and Dr. Barnett flew to Peachtree-DeKalb Airport in Atlanta, and returned to Florida. The next day, Mr. Beatty and his son, T. J., flew again to Peachtree-DeKalb with two passengers and returned to Florida with three passengers. As to that trip with his son, Mr. Beatty said, “we picked up [Mrs. Lacey’s] daughter and son-in-law and brought them back to Orlando.” On July 3-4, Dr. Lacey flew to Peachtree-DeKalb and back to Florida. On August 12-13, Dr. Lacey flew to Atlanta and returned to Florida with a passenger. On July 28, Dr. Lacey and Mr. Beatty flew to Toccoa, Georgia, and returned July 30. On August 18-21, Dr. Lacey flew to Toccoa, with Mr. Beatty’s son, Roy Jr. Mr. Beatty testified he and Dr. Lacey had vacation homes in North Carolina and their flights to Toccoa were to visit these homes “for weekend pleasure.”

On August 25, 1989, Dr. Lacey flew to Toccoa, Georgia, with three passengers; on August 27,. he flew from Toccoa to Calhoun, Georgia, and on August 28 returned to Florida. On August 31, Dr. Lacey flew to Toccoa, where the plane remained until September 5, when he flew to Calhoun and then to Florida. The next day, Dr. Lacey again flew to Calhoun and returned to Florida with a passenger. On September 22, Dr. Lacey and Dr. Barnett flew to Albany, Georgia, and returned to Florida on September 24. On the next Georgia trip, Dr. and Mrs. Lacey were killed in the crash shortly after takeoff from Peachtree-DeKalb Airport.

Under the lease, “Lacey Champion of Florida” paid the defendant $8,361.67 the first month (April 1989) and $2,900 per month thereafter. Defendant provided risk and liability insurance for the plane, with the lessee as an insured. Mr. Beatty testified the defendant put no restrictions on where the plane could be flown; except for the insurance restrictions, Dr. Lacey was free to fly the plane anywhere. The question was asked: “Or yourself acting on the company’s behalf?” He replied, “It’s all the same thing.”

The flight logs indicate that from the time the plane was bought by defendant in January 1989, until it crashed, defendant’s president Mr. Beatty or his sons, and “Rick,” “J. Bowers” and “Klinger” flew the plane some 20 times, charging the gasoline to “Hardware Services” which is not shown to be connected with Dr. Lacey, or to “EAC.” On one occasion Mr. Beatty and his family flew to Georgia to attend his son’s wedding. At least once, Mr. Beatty flew the plane and charged the gasoline cost to defendant corporation.

When Dr. Lacey flew to Georgia or alone anywhere, gasoline was charged to “Lacey” or “LC.” Dr. Lacey and Mr. Beatty flew together to places other than Georgia on eight occasions, charging gasoline to “Hardware Services” on four of those occasions and to Lacey or “Lacey (EAC)” on four occasions.

According to the Supreme Court’s decision in Beasley v. Beasley, supra at 420, “a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. [Cits.] . . . The trial court considering a motion to dismiss for lack of jurisdiction has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43 (b). [Cit.] If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. [Cit.] Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.”

Any dispute of facts between Mr. Beatty’s deposition testimony and his affidavit in which he states in a conclusory way that except for an appraisal in October 1990, the defendant does no business and engages in no persistent course of conduct in Georgia, must be resolved in favor of the plaintiffs. Id. Aside from this rule, but even more so in light of this rule, Mr. Beatty’s deposition testimony establishes clearly that the defendant corporation was not an “airplane dealer” who merely leased a plane to an individual over whose use of the plane it had no control or knowledge.

Defendant bought this plane for Dr. Lacey in January 1989, with Dr. Lacey’s money, and provided maintenance for the plane, at a loss of money, so that Mr. Beatty could have use of the airplane “just for putting fuel in it.” Defendant served as registered owner with the F.A.A. for tax purposes, but defendant was not an “airplane dealer”; defendant was in the business of “aircraft consulting and management and appraising.” However, as an implied or ostensible “airplane dealer,” the defendant corporation spared Dr. Lacey the tax he would have paid as a private owner under Florida law. Mr. Beatty used the plane nearly as much as Dr. Lacey did; together Mr. Beatty and Dr. Lacey often flew to Georgia to visit Dr. Lacey’s mother and to drive to their North Carolina homes. Mr. Beatty benefitted substantially by the fact that the plane was available for his use merely for the cost of fuel.

When defendant bought the plane, it had complete knowledge through its officer and agent Mr. Beatty, that Dr. Lacey and Mr. Beatty intended to use the plane to fly to and land in Georgia cities and airports to visit close relatives and for weekend trips. Although the plane was bought in January 1989, and Dr. Lacey used it regularly and frequently from that time, no lease existed or was contemplated from January 1989 until April 1989. The arrangement between Dr. Lacey and Mr. Beatty for defendant to purchase, serve as registered owner of, and maintain the plane, was one of mutual benefit to Dr. Lacey and defendant, and defendant’s president. This arrangement was not a transaction intended to make money for defendant, but it was legalized as a business transaction for tax purposes, for the direct and substantial benefit of defendant’s president and sole shareholder, and the intended lessee.

Defendant bought the plane for and leased it to Dr. Lacey with the knowledge, foresight, expectation and direct intention that Dr. Lacey and Mr. Beatty would use it in Georgia, and thereby defendant corporation “engage [d] in [a] persistent course of conduct... in this state.” OCGA § 9-10-91 (3).

Together with the allegation that defendant by faulty maintenance committed a tortious act or omission outside this state, by which it committed a tortious injury in this state, the facts in this case invoke the threshold operation of OCGA § 9-10-91 (3), which provides: “A court of this state may exercise personal jurisdiction over any nonresident . . . if in person or through an agent, he . . . (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor . . . engages in [a] persistent course of conduct . . . in this state. . . .” (Emphasis supplied.)

The evidence, construed according to the rule in Beasley v. Beasley, supra, shows overwhelmingly that the defendant corporation did extensive affirmative acts establishing minimum contacts in Georgia. In reaching a contrary conclusion, the majority incorrectly construes the evidence to show that all of the acts which occurred in Georgia were merely the unilateral acts of Dr. Lacey. The majority then incorrectly concludes that the provisions of OCGA § 9-10-91 (3) are not invoked because defendant corporation or its agent was not flying the plane in Georgia when it crashed and because defendant’s president Mr. Beatty — who defendant arranged and directly expected would fly the plane in Georgia and who did regularly use the plane in Georgia — did not personally service the plane. However, the very purpose of subsection (3) of § 9-10-91 is to capture in our jurisdiction nonresident defendants who commit a tortious act or occurrence in another state, which results in tortious consequences in this state. The nonresident defendant does not have to be physically present in this state when injury results here. Shellenberger v. Tanner, 138 Ga. App. 399, 404 (227 SE2d 266). And we fail to see how the fact that defendant’s other employees, and not its president Mr. Beatty, performed the maintenance, operates to insulate defendant from the tortious consequences of that maintenance in Georgia.

OCGA § 9-10-91 (3) does not require that a defendant’s “persistent course of conduct” be one designed to make money, and we are not deprived of our proper jurisdiction by the fact that defendant lost money in this course of conduct. The Long-Arm Statute does not require that the “persistent course of conduct” of the defendant or its agent in this state must be for the purpose of “business,” and we are not aware of any rationale or authority that would deny Long-Arm jurisdiction to us in a case merely because the nonresident’s contacts in this state were made for it or for its president’s or designated lessee’s personal use or pleasure.

Although the majority concludes that the individual or personal acts of defendant’s officer or agent cannot be imputed to the corporation (see Perry Agri Distributors v. Bailey Seed Farms, 169 Ga. App. 58 (311 SE2d 497)), Mr. Beatty testified he and defendant were “all the same thing”; he was defendant’s alter ego. Through Mr. Beatty, defendant knew of the actual purpose of the arrangement between defendant and Dr. Lacey, and had foresight, expectation and intention that the plane would be used in Georgia not only by Dr. Lacey, but by its president and sole shareholder Mr. Beatty and his family.

It is not Mr. Beatty’s individual acts that invoke our jurisdiction in this case. The actions of defendant corporation in purchasing this plane for Dr. Lacey and Mr. Beatty, its president and sole shareholder, maintaining it for Dr. Lacey and Mr. Beatty, and leasing it to Dr. Lacey, with knowledge, foresight, expectation and full intention that both Dr. Lacey and Mr. Beatty would fly it in Georgia, were affirmative acts of the defendant by which defendant “engage[d] in [a] persistent course of conduct ... in this state.” OCGA § 9-10-91 (3). The evidence shows not merely, as Mr. Beatty implied, that the plane was “available” to him, but that the specific deliberate purpose and intent of defendant corporation with regard to this plane was to form an arrangement allowing Dr. Lacey to fly the plane in Georgia, in exchange for which its agent, officer and sole shareholder would and did use the plane for his own purposes. Defendant controlled how Dr. Lacey used the plane, requiring that two persons fly the plane in bad weather.

This is the view of the facts we are mandated by Beasley v. Beasley to adopt. The public policy of Georgia law is that our courts shall exercise jurisdiction over nonresident parties “to the maximum extent permitted by procedural due process.” (Emphasis supplied.) Bradlee Mgmt. Svcs. v. Cassells, 249 Ga. 614, 617 (292 SE2d 717); Clarkson Power Flow v. Thompson, 244 Ga. 300 (260 SE2d 9); Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 62 (195 SE2d 399). The provision of OCGA § 9-10-91 (3) authorizing jurisdiction of nonresidents who cause injury in this state by a tortious act committed elsewhere is a liberalization of the invocation of Long-Arm jurisdiction and not a restriction on it. A “single event” may be sufficient to sustain jurisdiction based on minimum contacts under § .9-10-91 (3). Shellenberger v. Tanner, supra at 404. “ ‘[Wjithin the bounds of fairness and substantial justice to the defendant, the Long Arm Statute will be applied to the limits of due process so that those who invoke the protection or benefits of the laws of Georgia, or who injure citizens or property here, will be made to answer therefor in the Georgia courts.’ ” Value Engineering Co. v. Gisell, 140 Ga. App. 44, 48 (230 SE2d 29), citing Coe & Payne Co., supra; J. C. Penney Co. v. Malouf Co., 230 Ga. 140 (196 SE2d 145); Davis Metals v. Allen, 230 Ga. 623 (198 SE2d 285).

Defendant confused the posture of this case before this court by asserting that in determining the reasonableness of invoking jurisdiction in a case, we must follow certain criteria that Shellenberger, supra, adopted from a North Carolina case. This assertion is a perversion of the holding of Shellenberger. The Georgia Supreme Court held in Beasley v. Beasley, supra at 421: “Due process requires that individuals have ‘fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.’ [Cit.] In evaluating whether a defendant could reasonably expect to be haled into court in a particular forum, courts examine defendant’s contacts with the state, focusing on whether (1) defendant has done some act to avail himself of the law of the forum state; (2) the claim is related to those acts; and (3) the exercise of jurisdiction is reasonable, that is, it does not violate notions of fair play and substantial justice. [Cits.] These three elements do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts. [Cit.] The first two elements are used to determine whether defendant has established the minimum contacts necessary for the exercise of jurisdiction. If a defendant has established minimum contacts, the court may then evaluate other factors that impact on the reasonableness of asserting jurisdiction, such as the burden on defendant, the forum state’s interest in adjudicating the dispute, plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the states in furthering substantive social policies. [Cit.]”

Applying these principles to the facts before us, we would conclude without question (1) that defendant did affirmative acts to engage in a persistent course of conduct in this state, by buying this plane specifically at Dr. Lacey’s request, and maintaining it for his use and the use of defendant’s president Mr. Beatty, while registering itself as owner with the F.A.A. so that Dr. Lacey would avoid the status of private owner and liability for tax in Florida, with knowledge and direct expectation and intent that Dr. Lacey and Mr. Beatty would fly the plane in Georgia and would land at Georgia airports and avail the plane of Georgia airport and public services and facilities, including police, fire and medical services. We would find (2) that the wrongful death claim of plaintiffs is related to these acts by defendant. We would find (3) that the exercise of jurisdiction is reasonable and does not violate notions of fair play and substantial justice, under all the “helpful analytical tools” suggested in Beasley v. Beasley for that determination.

The facts in the record refute the majority’s characterization that this is a case where a Florida corporation “merely leased” an airplane to another Florida corporation; that defendant was an “airplane dealer”; that the introduction of this plane into Georgia was the unilateral act of the lessee over which defendant had no control or knowledge; that lessee was solely responsible for bringing the plane into Georgia and defendant did no affirmative act which placed this plane in Georgia. The sole basis for jurisdiction is not merely that it was foreseeable that the lessee would fly the plane to Georgia, but the act of bringing the plane into this forum must be attributed to the defendant.

The majority is incorrect in concluding that defendant did not benefit from this arrangement; and in any event we are not deprived of jurisdiction merely because defendant did not “benefit” from the use of the plane in Georgia, or merely because Mr. Beatty himself did not service the plane and was not piloting it when it crashed. It is not necessary to our jurisdiction that defendant or its agents be physically in Georgia when the crash occurred, or when the tortious act occurred, or even when the single event occurred which established minimum contacts sufficient to invoke our jurisdiction. Shellenberger, supra at 407.

Defendant confused the issues in this case by contending it was not “doing business” in Georgia in any case, because it did not make any money off this “lease” arrangement. This was a transaction engaged in by defendant not to make money, but specifically intended by defendant to give to its president Mr. Beatty and Dr. and Mrs. Lacey access to this airplane for their joint and separate personal use, which defendant directly foresaw and expressly expected would occur in Georgia. Defendant engaged in a “persistent course of conduct” (§ 9-10-91 (3)) in Georgia; the Code section does not require that defendant must have “benefitted” from it. Jurisdiction is invoked not by the fact that a defendant “benefits” from a persistent course of conduct in this state, but because a tortious injury or death has occurred here, when the defendant has engaged in a persistent course of conduct within this state.

The majority has incorrectly concluded that defendant was an “airplane dealer” and has incorrectly characterized the facts of this case as being similar to those in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (100 SC 559, 62 LE2d 490), which involved the random sale of consumer goods. To buttress its contention that it did no affirmative act to place this plane in the stream of Georgia commerce, defendant relied upon that case and such other “consumer purchase” cases as Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U. S. 102, 112 (107 SC 1026, 94 LE2d 92) and our recent case of Showa Denko K.K. v. Pangle, 202 Ga. App. 245 (414 SE2d 658).

The majority has followed defendant’s reliance on such consumer purchase cases, and concludes that “defendant committed no tortious act in Georgia,” which is relevant to subsection (2) of OCGA § 9-10-91, but not to subsection (3). The majority then implies that to invoke jurisdiction under subsection (3) of the Code section, defendant must have introduced a consumer product in Georgia, e.g., by sale or by shipment. To defeat our jurisdiction in this case, the majority relies upon cases involving consumer purchase of goods, where a defendant introduced a product into the forum’s stream of commerce by sale or distribution; the majority concludes we do not have jurisdiction because this defendant did not sell or distribute, or even “ship” a product through Georgia (see Value Engineering Co., supra).

There is no requirement in § 9-10-91 (3) that a defendant must have sold, distributed or shipped a product in this state, or introduced goods into the stream of commerce in Georgia. Consumer purchase cases such as Showa Denko, supra, do not embody the only means by which “minimum contacts” and due process are analyzed, nor do they establish the singular standard by which a “persistent course of conduct” is determined under § 9-10-91 (3). Moreover, while saying this is not a consumer purchase case and pointing to Showa Denko, where we found jurisdiction, the majority then inconsistently asserts this is a consumer purchase case like World-Wide Volkswagen, supra, which involved an automobile dealer (like the defendant, who the majority concludes was an “airplane dealer”) who could merely “foresee” that a random consumer to whom it sold an automobile in New York might drive it to another state, and have an accident there.

We do not believe the legal principles invoked in consumer purchase cases such as World-Wide Volkswagen, supra; Showa Denko, supra; and Asahi Metal Co., supra, should be interposed to cause confusion in a case which bears no factual relation to the “random” or “happenstance” (see Showa Denko, supra) contacts that may occur with sales and distribution of consumer goods in interstate and international settings. It is casuistical in the extreme to superimpose legal principles from dissimilar fact settings in such a way as to make these facts appear different than what they are.

Nevertheless, proper application of the underlying legal principles in the consumer purchase cases demands the invocation of our Long-Arm jurisdiction in this case, for it is undisputable that this defendant was not merely “aware” (Asahi, supra) that this plane might find its way to Georgia, nor was it “happenstance” (see Showa Denko, supra) that this plane flew and crashed in Georgia. Rather the defendant “engage [d] in [a] persistent course of conduct ... in this state,” OCGA § 9-10-91 (3), by purchasing the plane for Dr. Lacey and for its president’s use, with the immediate knowledge, foresight, expectation and intention that the plane would be regularly used in this state by both, and would regularly use Georgia’s airport and public facilities.

The foreseeability in this case was far more certain than that upon which jurisdiction was invoked in Showa Denko, supra, where we held “ ‘[t]he foreseeability that is critical to due process analysis is not the mere likelihood that the product will find its way to the forum [s]tate. Rather, it is that the defendant’s conduct and connection with the forum [sjtate are such that he should reasonably anticipate being haled into court there.’ ” (Emphasis supplied.) Id. at 248. This is the ultimate determination to be made in consumer purchase cases, as in all cases whatever the “course of conduct,” and under this criterion, jurisdiction is properly invoked in this case by a finding of minimum contacts satisfying due process requirements. Beasley v. Beasley, supra at 421.

In Value Engineering Co., supra, we found jurisdiction, although defendant’s sole contact with this state was for a mere 80 minutes while radioactive contaminant sat in a plane’s cargo hold during a lay-over at the Atlanta airport. The persistent course of conduct engaged in by the corporate defendant in this case was far more directly intended and foreseen, far more lengthy, and far more extensive in nature.

Decided March 20, 1992

Reconsideration denied April 3, 1992

Middleton & Anderson, Clinton W. Sitton, for appellants.

Neely & Player, Richard B. North, Jr., Edgar A. Neely, Jr., Lorre J. Gaudiosi, for appellee.

According to the principles laid down in Beasley v. Beasley, supra, we would hold that Long-Arm jurisdiction of Georgia courts is properly invoked in this case and is well within the limits of procedural due process.

I respectfully dissent. I am authorized to state that Presiding Judge McMurray joins in this dissent.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1841.
    SCREVEN v. THE STATE.
    (419 SE2d 155)
   Cooper, Judge.

Appellant was convicted by a jury for the sale of cocaine. She appeals from the denial of her motion for new trial.

1. In one of her enumerations of error, appellant argues that the trial court erred in admitting into evidence, as a prior similar transaction, a certified copy of a prior conviction of appellant for possession of cocaine. At trial, the State did not offer evidence of the circumstances surrounding the commission of the prior crime or the similarity of the prior crime to the crime for which appellant was being tried. The State only presented the certified copy of the conviction. This case is directly controlled by the recent Georgia Supreme Court case of Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991), and we therefore quote at length from Stephens: “We agree with [appellant] that the introduction of a certified copy of [her] prior conviction . . . was error. At a pre-trial hearing pursuant to Uniform Superior Court Rule 31.3 (B) on the admissibility of evidence of the prior crime, the prosecutor demonstrated the similarity between the prior conviction and the crime for which the [appellant] was being tried by ‘stating in his place’ the relevant facts of the prior conviction. The trial court’s finding of sufficient similarity based on the prosecutor’s statement of what he expected to show at trial was proper. [Cit.] However, the state’s establishment of a prima facie case of similarity does not satisfy its obligation to present proof on that issue at trial. Here no such proof was made. Only the conviction itself was offered. . . . Therefore, in this case, there must be some evidence to establish between the independent crime and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime for which [appellant] is on trial. [Cits.]” Id. at 468-469. See Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991); Sisroe v. State, 203 Ga. App. 64 (416 SE2d 141) (1992). “Georgia law is now clear that the State must make a sufficient showing of similarity [as set forth in Stephens] before prior convictions can be introduced for any purpose. . . .” Sisroe, supra. The State failed to make such a showing at trial, and therefore this case must be reversed.

Decided April 3, 1992.

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Barbara A. Smith, Assistant District Attorneys, for appellee.

2. Our holding in Division 1 makes it unnecessary to consider the remainder of appellant’s enumerations of error.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


author: Andrews, Judge.

text:
    A92A0164.
    WIDNER v. THE STATE.
    (418 SE2d 105)
   Andrews, Judge.

Widner was found guilty by a jury of armed robbery (OCGA § 16-8-41), and possession of a firearm during the commission of the robbery (OCGA § 16-11-106 (b) (1)).

Viewed in the light most favorable to the jury’s verdict (Gurlaskie v. State, 196 Ga. App. 794, 795 (397 SE2d 66) (1990)), the evidence shows that while the victim was walking home from a friend’s house carrying his “game rooster,” Widner approached the victim in his car, pulled a gun, and stole the chicken. The victim, and friends who were with him when the robbery occurred, reported the robbery, and gave the police a description of the armed robber and his car. Based on the general description, the investigating officer included a photograph of Widner in a photographic lineup conducted two days after the robbery from which the victim and others present at the robbery picked Widner as the armed robber. Based on the identification and descriptions of the robbery, and police investigation, police charged Widner with the robbery, and obtained a warrant to search Widner’s car for the gun and chicken feathers. The search produced one chicken feather which was introduced as evidence in the State’s case. The victim and one of his friends present during the robbery positively identified Widner at trial as the armed robber.

1. Widner claims the trial court erred by denying his motion to suppress the victim’s and one other eyewitness’s photographic identification of Widner prior to trial, evidence of which was introduced at trial. Widner argues that the pre-trial photographic identification procedure was impermissibly suggestive, and tainted the eyewitness identification at trial. “A pre-trial identification procedure may be so tainted as to require exclusion of an in-court identification, if, under all the circumstances, the procedure was both impermissibly suggestive and it resulted in a substantial likelihood of irreparable misidentification. The first inquiry is whether the photographic display was impermissibly suggestive. Only if it was, need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification.” (Punctuation and citations omitted.) Graham v. State, 171 Ga. App. 242, 253 (319 SE2d 484) (1984). Widner’s claim is that of the six photographs displayed, his image was larger and bolder, his head was slightly turned, and he had the longest hair of anyone pictured. Neither the variance in size and texture of the photographs, nor the slight turn of Widner’s head renders the procedure impermissibly suggestive. Simpson v. State, 193 Ga. App. 439, 440 (388 SE2d 39) (1989). The armed robber was described after the robbery as having long hair. All six men depicted in the photographic display had long hair, with Widner’s being only somewhat longer than the others. The procedure was not impermissibly suggestive and the trial court did not err by denying the motion.

2. The trial court properly denied Widner’s motion to suppress the results of the search of his car. The affidavit in support of the warrant was based on the victim’s description of the robbery, the photographic identification of Widner, and a description of his car obtained by the officer’s independent investigation. There was more than sufficient probable cause for issuance of the search warrant. Mize v. State, 173 Ga. App. 327, 328 (326 SE2d 782) (1985).

3. Widner contends the evidence was insufficient to prove where the crime was committed, therefore the State failed to prove venue in Bartow County beyond a reasonable doubt. The evidence showed that the armed robbery occurred while the victim was walking from a friend’s house to his own house, both of which were located in the city of Kingston. The incident was responded to and investigated by the Bartow County Sheriff’s Department. Contrary to the defendant’s contention, we find no conflict in the evidence on this point. Even slight evidence of venue is sufficient where there is no conflicting evidence. Aldridge v. State, 236 Ga. 773, 774 (225 SE2d 421) (1976); Green v. State, 182 Ga. App. 695, 696 (356 SE2d 673) (1987). We take judicial notice that the city of Kingston is located in Bartow County. See Williams v. State, 162 Ga. App. 680, 681 (292 SE2d 560) (1982); Jackson v. State, 177 Ga. App. 718 (341 SE2d 274) (1986). The evidence was sufficient to prove venue in Bartow County beyond a reasonable doubt.

Decided April 6, 1992.

Gerard P. Verzaal, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

4. Widner claims the trial court erred by failing to charge the jury on the lesser included offense of theft by taking. Although theft by taking has been held to be a lesser included offense of armed robbery, no charge on the lesser included offense is necessary where the evidence, as here, shows completion of the greater offense. Belcher v. State, 201 Ga. App. 139, 141 (410 SE2d 344) (1991); Hambrick v. State, 174 Ga. App. 444, 447 (330 SE2d 383) (1985). Moreover, Widner did not request this charge. In the absence of a written request, there is no error in failing to include a charge on a lesser included offense. French v. State, 199 Ga. App. 873, 874 (406 SE2d 526) (1991).

5. In enumerations five and six, Widner argues that the evidence was not sufficient to support his conviction, especially in light of alibi evidence presented in his defense. It is the task of the jury to weigh the evidence by determining the credibility of witnesses and resolving conflicts in the evidence. This Court does not reweigh the evidence, but determines if it is legally sufficient. Dobbs v. State, 199 Ga. App. 793, 795 (406 SE2d 252) (1991). The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0477.
    POLLEY v. THE STATE.
    (418 SE2d 107)
   McMurray, Presiding Judge.

Defendant filed this appeal after his conviction for voluntary manslaughter. Held:

1. Defendant contends the trial court abused its discretion in failing to respond to the jury’s request for a recharge of the entire jury instruction.

During deliberations, the jury requested recharges on murder and voluntary manslaughter. With the consent of counsel, the trial court prepared written instructions on these topics and submitted them to the jury. The trial court then cautioned the jury “ ‘to recall all other jury instructions previously given by the Court in addition to the foregoing request for statutory definitions [and to]’ recall all the other instructions concerning the burden of proof, various theories presented in the case, such as accident and self-defense and other matters.” The jury foreman responded that the trial court’s written instructions were satisfactory. The following then transpired: “MR. FOREMAN: ... I think that several members of our jury may want to rehear the charges that you gave us earlier. I think that would be appropriate first thing in the morning. THE COURT: I would not necessarily want to restate all the charges to you necessarily at this point, Mr. Foreman and other jury members. I might be able to respond to specifics, such as the one you’ve given me. Do you know whether or not that request will continue in the morning or not? THE FOREMAN: I think we will need to discuss that in the morning. THE COURT: All right. I do have the statutory definitions for you that you specifically requested — the topics, the two topics. I understand that everyone would like to go home and that’s what we’re going to do. Is that the consensus, Mr. Foreman? MR. FOREMAN: Yes, sir.” The next morning the jury did not request further instructions.

The burden is on a party claiming error to show it by the record. Edwards v. State, 176 Ga. App. 369, 371 (337 SE2d 27). In the case sub judice, the jury did not return with a request for further instructions. Consequently, defendant’s contention that the trial court abused its discretion in failing to respond to the jury’s request for a recharge of the entire jury instruction is not supported by the record. It follows that this enumeration presents nothing for review.

2. In his second enumeration, defendant contends the trial court’s charge on accident was deficient because it failed to instruct the jury that the State had the burden of proving, beyond a reasonable doubt, that no accident existed. This enumeration is without merit.

The trial court fully and fairly charged the jury on the law of accident. OGCA § 16-2-2. Further, the trial court repeatedly charged the jury on the presumption of innocence and the State’s burden of proving every element of the offense charged beyond a reasonable doubt. Hudson v. State, 171 Ga. App. 181, 183 (3, b) (319 SE2d 28).

3. Defendant challenges the trial court’s statutory charge on voluntary manslaughter, arguing there is no evidentiary basis for that part of the instruction providing that “if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard . . . the killing shall be attributed to deliberate revenge and be punished as for murder.” See OCGA § 16-5-2.

Assuming, without deciding, there is no evidence to support the above instruction, no harm could have possibly resulted since the jury found defendant guilty of the lesser included offense of voluntary manslaughter, not murder. See Butts v. State, 198 Ga. App. 368, 370 (4) (401 SE2d 763).

Decided April 6, 1992.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

4. Defendant contends in his last enumeration that the trial court erred in allowing the jury to proceed under the misconception that coindictee Larry Michael Vaughn was a co-conspirator who had been granted testimonial immunity. This enumeration is without merit.

Defendant fails to explain how any misconception that defendant’s co-indictee had been given testimonial immunity was harmful. Harm as well as error must be shown to warrant reversal. Robinson v. State, 229 Ga. 14 (1), 15 (189 SE2d 53). Further, defendant fails to cite any portion of the record supporting this contention. The burden is on a party claiming error to show it by the record. Edwards v. State, 176 Ga. App. 369, 371, supra. However, in an abundance of caution we examined the entire charge to the jury and find that the jury was fully and fairly informed that the testimony of an accomplice alone is insufficient to warrant a conviction and that an accomplice’s testimony must be substantiated by independent corroborating evidence.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0510.
    INFINGER et al. v. UNION CENTRAL LIFE INSURANCE COMPANY et al.
    (418 SE2d 109)
   Birdsong, Presiding Judge.

This appeal is from the grant of partial summary judgment to the third-party defendant, The Union Central Life Insurance Company, in a suit by Brawner Psychiatric Hospital against Richard and Andrea Infinger on a promissory note for $22,460.11 relating to their son’s treatment at Brawner from February to May 1988. The Infingers brought in Mr. Infinger’s employer’s insurer, claiming liability for insurance coverage. The trial court’s grant of partial summary judgment to the insurer was based on a finding that some (but not necessarily all) of Infinger’s conditions treated at Brawner were preexisting conditions, the treatment of which the insurer was not liable to pay. Held:

We affirm the ruling of the trial court. Although appellants somewhat unspecifically characterize the trial court’s judgment as an inappropriate credibility ruling on evidence given by Infinger’s physician, the court correctly ruled that whereas the insurer’s coverage of Mr. Infinger and his family did not commence until February 2, 1988, his son had been treated in January 1988, for some of the conditions diagnosed and treated during his stay at Brawner, viz., “attention deficit disorder” and “non-aggressive conduct disorder.” Following the treatment in January and a recurrence of the youth’s unsocial conduct, in which he took the family car and ran away to Arkansas following a disturbance at school, young Infinger was admitted to a hospital on February 2, 1988, and entered Brawner on February 4, 1988.

Decided April 6, 1992.

William R. Hurst, for appellants.

Lord, Bissell & Brook, Kerry A. Quinn, Bobby G. New, for appellees.

The evidence shows no genuine issue of material fact that at least for “attention deficit disorder” and “non-aggressive conduct disorder,” young Infinger had a preexisting condition as defined under the terms of the insurance policy, for which he had been treated within three months prior to the effective date of the insurance policy (February 2, 1988); these were the same conditions, and were diagnosed and medicinally treated the same, as the conditions for which he had been treated during the previous month. According to the rules to be applied to the evidence and procedure on motions for summary judgment (see Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576)), the trial court did not err in granting partial summary judgment to appellee on the limited issue involved.

The trial court also found, however, that jury questions remain as to whether and to what extent young Infinger’s treatment at Brawner was for conditions other than the conditions for which he was treated during January 1988, such as aggressive (not non-aggressive) conduct disorder, for which treatment the insurer might be liable to pay. The insurer has not appealed this finding against it and we find no cause to reverse the partial summary judgment granted in its favor as to the conditions which were plainly preexisting when appellee’s insurance coverage commenced February 2, 1988.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Carley, Presiding Judge.

text:
    A91A0136.
    ANDERSON v. THE STATE.
    (419 SE2d 156)
   Carley, Presiding Judge.

In Anderson v. State, 199 Ga. App. 595 (405 SE2d 504) (1991), we affirmed appellant’s conviction. On certiorari, however, the Supreme Court reversed. Anderson v. State, 262 Ga. 26 (413 SE2d 732) (1992). Accordingly, our original judgment is vacated and the judgment of the Supreme Court is hereby made the judgment of this court. Appellant’s conviction is reversed.

Decided April 7, 1992.

Harrison & Harrison, Samuel H. Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Rosanna Musengo, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.

Judgment reversed.

Beasley and Johnson, JJ., concur.


author: Sognier, Chief Judge.

text:
    A92A0043.
    THE STATE v. STEWART et al.
    (418 SE2d 110)
   Sognier, Chief Judge.

Tom and Brenda Stewart were indicted for the arson of their business premises. The trial court granted their motion to suppress evidence seized during a warrantless search of a mini-warehouse, and this court affirmed that decision in State v. Stewart, 191 Ga. App. 750 (382 SE2d 677) (1989). The United States Supreme Court vacated this court’s judgment and remanded the case for further consideration in light of Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990). Georgia v. Stewart, 497 U. S. _ (110 SC 3232, 111 LE2d 744) (1990). Upon remand, State v. Stewart, 197 Ga. App. 269 (398 SE2d 270) (1990), the trial court again granted the motion to suppress, and the State appeals from that ruling.

As discussed more fully in State v. Stewart, 191 Ga. App. at 750, the warehouse search at issue was conducted pursuant to the consent of Garnett Root, who had rented the warehouse for appellee Tom Stewart at Stewart’s request but who had no key or other means of access to the warehouse, had never been inside the warehouse or seen its contents, and who paid the rent with funds provided by Stewart. After being contacted by Root, who had begun to suspect that items purportedly destroyed in the fire might instead be stored in the warehouse, the GBI agents who conducted the search gained access to the warehouse by cutting the padlock. This court upheld the trial court’s ruling that Root did not have common authority over or other sufficient relationship to the premises to consent to the search. Id. at 751-752 (citing United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974)).

In Illinois v. Rodriguez, supra, the Supreme Court held that a warrantless search based on consent that would not satisfy the Mat- lock test could nonetheless be upheld if the law enforcement officer conducting the search reasonably (albeit erroneously) believed the consent given was valid. 111 LE2d at 160. Resolution of this issue requires a determination by the factfinder, applying an objective standard, that the “facts available to the officer at the [time of the search would] warrant [one] of reasonable caution in the belief that the consenting party had authority over the premises. [Cit.]” (Punctuation omitted.) Id. at 161. When the trial court in the case sub judice applied this standard upon remand, it found that the agents could not reasonably have believed that Root had authority over the premises.

We agree and affirm. As the trial court recognized, Root did not purport to possess any authority over the premises, but instead informed the agents that he had no key or other means of access and that he had never been inside the warehouse or seen its contents. Indeed, the fact that the agents had to cut the padlock to enter the warehouse belies any claim that they reasonably believed Root had authority to enter it. Compare State v. Oliver, 183 Ga. App. 92, 93 (357 SE2d 889) (1987) (landlord who did not have mutual use of the property and was not a co-inhabitant did not have authority to consent to search of tenant’s residence) with Moses v. State, 185 Ga. App. 705 (365 SE2d 868) (1988) (apartment resident who allowed defendant, who paid no rent and had no key to apartment, to use a spare room in apartment had authority to consent to search of defendant’s room). The agents could not reasonably have relied on the fact that Root’s name was on the lease application, for the Matlock Court held that the authority which justifies third-party consent rests not upon the law of property but upon “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, supra at 171, n. 7; see Oliver, supra at 92-93.

The State argues that under the authority of United States v. Diggs, 544 F2d 116 (3rd Cir. 1976), and United States v. Botsch, 364 F2d 542 (2nd Cir. 1966) (decided prior to Matlock, supra), the agents reasonably could have believed that Root was authorized to consent to the search in order to clear himself of any suspicion cast upon him as a result of his connection to appellees. Even assuming, without deciding, that this principle would be followed in Georgia, these cases are distinguishable because in each the person who consented to the search had either possession of or a key to the property searched. To apply the notion that Root could consent to the search because he possessed a right “to exculpate himself promptly and voluntarily by disclosing the property and explaining his connection with it,” Diggs, supra at 120-121, that somehow prevailed over appellees’ Fourth Amendment right to be free from unreasonable searches and seizures even when Root had no access to or control of the property would eviscerate the Fourth Amendment. This we refuse to do.

Decided April 7, 1992.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.

Scott & Quarterman, Russell T. Quarterman, Donald T. Wells, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0061.
    WHEELER v. THE STATE.
    (418 SE2d 112)
   Sognier, Chief Judge.

Margaret Wheeler was convicted of selling cocaine, and she appeals.

1. Appellant contends the trial court erred by failing to recharge the jury on reasonable doubt after one juror, during the polling of the jury, stated that the guilty verdict was “not really” her own but that she “went along with the group.” The transcript also reflects that the juror stated she agreed with the verdict but had “my reasons why,” which apparently varied from the other jurors’ reasons. The trial judge, who had fully instructed the jury on reasonable doubt during the original charge,. explained the polling process to the jury and recharged the jury about the need for unanimity, stressing that a juror “should never surrender honest convictions or opinions in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.” The trial court followed proper established procedure by ordering the jury to resume deliberations. See Hudson v. State, 157 Ga. App. 71, 72-73 (3) (276 SE2d 122) (1981); Rosser v. State, 156 Ga. App. 463, 464 (2) (274 SE2d 812) (1980). Thereafter, the jury returned with a unanimous guilty verdict.

We find no error in the trial court’s refusal to recharge the jury on reasonable doubt as requested by appellant’s counsel. Creamer v. State, 229 Ga. 704, 708-709 (4) (194 SE2d 73) (1972). The recharge did not involve points which were favorable to the State and thus did not leave an erroneous impression in the minds of the jury. See Walker v. State, 198 Ga. App. 422, 423-424 (2) (401 SE2d 613) (1991).

2. Appellant contends the trial court erred by admitting testimony by Susan Strickland, a crime lab scientist, regarding tests performed on a perforated beer can (used as a device for smoking crack cocaine) because the State had not provided appellant with a copy of the test results pursuant to her written demand filed in accordance with OCGA § 17-7-211 (b). The transcript reveals that appellant was charged with selling to Peter Denton, an undercover police officer, two pieces of a substance Strickland identified at trial as crack cocaine. During direct examination of Jeff Youngblood, the police officer who had provided backup support for Denton during the sale, the prosecutor inquired into a search warrant the officer had obtained shortly after the sale and executed at the house where the sale occurred. The prosecutor’s questions were directed toward establishing that appellant was present in the house at the time of the search. On cross-examination, however, defense counsel asked about the results of the search. Youngblood testified that he seized drug paraphernalia in the form of a perforated beer can and, in response to detailed questioning, he described the can and explained where it was found in the house. In response to defense counsel’s questions Youngblood stated that he gave the can to Strickland at the crime lab, and that Strickland currently had the can with her.

The beer can in issue was introduced on redirect by the State and identified by Youngblood. He then was excused, and the State recalled Strickland. When the prosecutor asked Strickland whether she had performed tests on the beer can, appellant objected on the basis that, appellant had not received copies of the test results. The trial court overruled the objection, and Strickland testified that based on the tests she performed, she found the residue inside the beer can to be cocaine.

OCGA § 17-7-211 provides in pertinent part: “(b) [i]n all criminal trials, . . . the defendant shall be entitled to have [upon proper written request] a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. . . . (c) Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution’s case-in-chief or in rebuttal.” (Emphasis supplied.) It is not controverted that the test results in issue were in the possession of the prosecution and constituted the type of written scientific reports subject to OCGA § 17-7-211.

The admission of the challenged evidence was error. We find utterly without merit the State’s argument that admission of the test results was proper because appellant “opened the door” to that evidence by cross-examining Youngblood about the beer can. Aside from the fact that the State introduced the topic of the search by questioning Youngblood about it on direct and that defense counsel asked the officer only about the beer can itself, not about any substance on the can or any tests performed on it, OCGA § 17-7-211 expressly precludes the State from using in rebuttal the evidence in written scientific reports not provided pursuant to a defendant’s written timely demand. Rebuttal evidence necessarily addresses itself to matters introduced by the defendant since its purpose is to refute or explain any or all of the defendant’s evidence. See generally Verble v. State, 172 Ga. App. 321, 322 (2) (323 SE2d 239) (1984).

Decided April 7, 1992.

Timothy L. Eidson, for appellant.

David E. Perry, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

However, “[w]hen properly admitted evidence of guilt is so overwhelming as to negate the possibility that the tainted evidence contributed to the verdict, the error may be harmless ([cit.]), and we find it so here.” Harvill v. State, 190 Ga. App. 353, 356 (3) (378 SE2d 917) (1989). Appellant was charged with selling two pieces of crack cocaine to an undercover police officer, Denton. Denton positively identified appellant as the person who sold him the cocaine, the State proved the chain of custody of the purchased contraband, and Strickland’s testimony established that the items Denton purchased were cocaine. Appellant cannot complain about the introduction of the drug paraphernalia evidence since that matter was elicited by the defense. See Burrell v. State, 171 Ga. App. 648, 649 (2) (320 SE2d 810) (1984). Contrary to appellant’s argument, Strickland’s testimony that residue inside the beer can was cocaine was merely cumulative of Young-blood’s testimony, earlier admitted without objection, that the beer can had been tested by the crime lab and that it “c[a]me back positive for cocaine.” See generally Brooks v. State, 193 Ga. App. 559, 560-561 (1) (388 SE2d 386) (1989); Burton v. State, 191 Ga. App. 822, 825 (7) (383 SE2d 187) (1989).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0065.
    FRADY v. THE STATE.
    (418 SE2d 114)
   Carley, Presiding Judge.

After a trial before a jury, judgments of conviction and sentences were entered by the trial court on the verdicts finding appellant guilty of one count of child molestation, two counts of aggravated assault, and one count of possession of a firearm during the commission of a felony. Appellant appeals, enumerating as error only the trial court’s failure to sustain his challenge to the jury panel.

Decided April 7, 1992.

Vanderhoff & Jordan, Lynwood D. Jordan, Jr., for appellant.

A prospective juror expressed the desire to be excused because of her “dissatisfaction with the system . . . related to lawyers who represented guilty defendants knowing that they were guilty.” After advising her that such “was not the case,” the trial court excused her for cause. Because the other prospective jurors had overheard the comment, appellant correctly made a challenge to the poll. See Hill v. State, 221 Ga. 65, 66 (1, 2) (142 SE2d 909) (1965). Compare Lingerfelt v. State, 147 Ga. App. 371, 373 (1) (249 SE2d 100) (1978); Edmonds v. State, 196 Ga. App. 190, 194 (1) (395 SE2d 566) (1990). The trial court asked whether any other juror shared the views of the excused prospective juror and whether her statement had affected any juror’s ability to be fair and impartial. No juror responded affirmatively.

The excused “ ‘juror’s statement. . . provide [s] no ground for disqualifying the jury.’ [Cit.]” Nelson v. State, 199 Ga. App. 487, 488-489 (4) (405 SE2d 310) (1991). See also McBurse v. State, 182 Ga. App. 759 (2) (357 SE2d 144) (1987); Petty v. State, 179 Ga. App. 767 (2) (347 SE2d 663) (1986). The statement was not “inherently prejudicial.” Compare Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107) (1980); Lingerfelt v. State, supra at 373-374 (1). It “did not link [appellant] to other criminal violations on his part which were complete and separate from the offense for which he was being tried. [Cit.]” Roberts v. State, 259 Ga. 441, 443 (2) (383 SE2d 872) (1989). See also McBurse v. State, supra at 759 (2). Compare Moore v. State, supra; Lingerfelt v. State, supra.

Moreover, “ ‘[i]n view of the remedial action taken by the trial court, we find no error in its refusal to disqualify (the entire panel) on the basis of a comment made by one prospective juror. . . .’ [Cit.]” Nelson v. State, supra at 489. “Furthermore, the record reflects that the remaining prospective jurors indicated they would not be affected by the remark. [Cit.]” McBurse v. State, supra at 760 (2). Accordingly, “[s]ince there was no showing that the [statement] influenced the minds of [any member of] the jury prejudicially to appellant, the denial of appellant’s [challenge to the poll] was not error. [Cits.]” Thaxton v. State, 260 Ga. 141, 142-143 (3) (390 SE2d 841) (1990). See also Roberts v. State, supra at 443 (2).

Judgments affirmed.

Pope and Johnson, JJ., concur.

Garry T. Moss, District Attorney, T. Russell McClelland III, Charles D. Gafnea, Assistant District Attorneys, for appellee.


text:
    A92A0073.
    RESNIK v. PITTMAN.
    (418 SE2d 116)
   Sognier, Chief Judge.

A jury found in favor of Billy Pittman in his personal injury suit against Howard Resnik. The trial court granted Pittman’s motion to include prejudgment interest pursuant to OCGA § 51-12-14 in the final judgment. Resnik appeals, challenging only the award of prejudgment interest.

The record establishes that appellee sent a letter by certified mail to Carole Barnaby, a claims representative at St. Paul Fire & Marine Insurance Company, which provided that “[t]his letter shall constitute written notice to [St. Paul] and its insureds, the Resniks[,] for unliquidated damages pursuant to OCGA § 51-12-14. [Appellee] is willing at the present time to settle his claims against [appellant] for a total payment of $30,000.00. This amount must be paid within thirty days of the date of this notice or we shall claim pre-judgment interest on any judgment at trial equal to or exceeding this amount.” It is uncontroverted that appellee did not either send a copy of this letter or send another letter with comparable information to appellant. The letter sent to Barnaby contained no request that it be forwarded to appellant, and Barnaby averred in her affidavit that the letter was not forwarded to appellant by her office. It is also uncontroverted that appellant’s insurance company was not a party to appellee’s personal injury suit and that Barnaby was not appellant’s attorney.

Appellant’s challenge to the award of prejudgment interest is based solely on the fact that appellee’s written notice was inadequate under OCGA § 51-12-14 because it was sent to the claims manager at appellant’s insurance company instead of appellant. We agree and reverse. The version of OCGA § 51-12-14 (a) in effect at the time of the events below provided that “[w]here a claimant has given written notice by registered or certified mail to a person against whom claim is made for unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the claimed sum if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the sum claimed.” (Emphasis supplied.)

These provisions of OCGA § 51-12-14, setting forth the manner in which a plaintiff can recover prejudgment interest on unliquidated damages in a tort suit, are in derogation of common law, see Williams v. Runion, 173 Ga. App. 54, 61 (325 SE2d 441) (1984) (Beasley, J., concurring specially); Barbush v. Oiler, 158 Ga. App. 625, 626 (281 SE2d 359) (1981), and therefore must be strictly construed. See generally Heard v. Neighbor Newspapers, 259 Ga. 458, 459 (5) (b) (383 SE2d 553) (1989). Furthermore, OCGA § 51-12-14 (a) is plain and unambiguous on its face. This statute expressly requires the plaintiff to give written notice to a person against whom claim is made. In the case sub judice, appellant, not St. Paul Fire & Marine Insurance Company or its claims representative, Barnaby, was the only person against whom a claim was made by appellee. “When a statute is found to be plain and susceptible of but one natural and reasonable construction, an appellate court has no authority to place a different construction upon it, but must construe it according to its terms. [Cit.] We find that [OCGA § 51-12-14 (a)] speaks concisely in establishing the requirements for [written notice to be given to “a person against whom claim is made”]; it is so plain and unambiguous that judicial construction is both unnecessary and unauthorized, and the legislature’s clear intent that the [written notice] be [given to a person against whom claim is made] will not be thwarted by invocation of the rule of ‘substantial compliance.’ [Cits.]” Regency Nissan v. Taylor, 194 Ga. App. 645, 648-649 (3) (391 SE2d 467) (1990). Accordingly, because the notice was sent to Barnaby, rather than appellant, it was insufficient to authorize an award of prejudgment interest under OCGA § 51-12-14, and the trial court erred by entering judgment in favor of appellee for prejudgment interest.

Decided April 7, 1992.

Blasingame, Burch, Garrard & Bryant, Andrew J. Hill III, Greory A. Daniels, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Sybil R. Carter, for appellee.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0126.
    DEAN v. THE STATE.
    (418 SE2d 117)
   Sognier, Chief Judge.

Michael Edward Dean was convicted of theft by taking (motor vehicle), and he appeals contending the circumstantial evidence was insufficient to support the verdict.

The evidence at trial established that Eddie Michael Smith parked his Ford truck leaving the keys in the ignition when he stopped at a bar at 9:30 p.m. on December 15, 1989. Smith reported the truck missing at 12:30 a.m. and was then informed the truck had been involved in an accident. Smith testified that his truck was totalled in the accident and that he observed blood on the seat, floor, and dash of the passenger side of the vehicle. Rhonda Pickerin testified that she saw the truck crash into a utility pole after attempting a left turn at high speed, that she saw only one person, the driver, in the truck, and that she would have seen anyone had they been in the bed of the truck. Pickerin testified it took her no more than 10 minutes to drive to a nearby business, report the accident, and return to the accident scene, at which time a police officer had already arrived. Officer Robert Harvey of the Glynn County Police Department testified that he arrived at the accident scene at 11:12 p.m., within a minute after receiving the call over his radio, where he found only appelIlant, who was outside the truck, bleeding profusely and smelling strongly of alcohol. Harvey testified that appellant denied owning or operating the truck and claimed to have been riding in the bed of the truck. When Harvey investigated the truck, however, he found blood only inside the vehicle and an indentation in the dash toward the passenger’s side. He also found a half gallon jug of whiskey sitting on the passenger side floorboard and several empty beer cans.

Appellant testified that on the night of December 15, the vehicle he was driving broke down and that a stranger, driving the truck in issue, stopped and offered him a ride. Appellant stated he gave the driver money to transport him and his possessions to his mother’s house. Appellant’s mother testified that on the night in issue appellant came to her house in a truck being driven by another man around 10:00 p.m. (within half an hour after Smith had left his truck at the bar’s parking lot). Appellant testified that after leaving his possessions with his mother he had the truck driver take him to a gas station to purchase fuel, and that they were driving back to appellant’s vehicle when the accident occurred. Appellant testified that the driver, claiming he was going to telephone for an ambulance for appellant, walked away from the truck after the accident. Appellant also testified that the force of the collision ruptured the gas can he was carrying and soaked him in gasoline. On rebuttal, Officer Harvey testified that he did not smell gasoline on appellant or inside the truck cab, and that he found only the whiskey jug and empty beer cans in the truck.

When the evidence connecting a defendant to the charged crime is circumstantial, to warrant a conviction “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save. that of the guilt of the accused.” OCGA § 24-4-6. “ ‘[Circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.’ ” (Emphasis supplied.) Peppers v. State, 261 Ga. 338, 339 (1) (404 SE2d 788) (1991). “Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” Harris v. State, 236 Ga. 242, 245 (1) (223 SE2d 643) (1976). See Atchison v. State, 181 Ga. App. 351, 352 (352 SE2d 201) (1986). Given the discrepancies in the evidence regarding where in the truck appellant claimed to have been riding (passenger seat or truck bed) and whether a ruptured gas can or gasoline fluids were present at the accident scene, in addition to the testimony by Pickerin that she saw only the driver in the truck and the evidence that appellant was the only person at the scene when police arrived within minutes after the truck’s high-speed collision with the utility pole, the evidence points inexorably toward the conclusion that only appellant could have been the driver of the truck. The jury heard and weighed the evidence regarding appellant’s defense that another was driving the truck and rejected the evidence in explanation offered by appellant and his mother. This weighing and selecting by the jury was in accordance with its duty. See Schmalz v. State, 177 Ga. App. 634, 636 (341 SE2d 11) (1986). Thus, contrary to appellant’s argument that the State failed to exclude the reasonable hypothesis that he was merely present at the scene of a crime, the evidence instead was sufficient to establish that appellant was in actual possession of the truck not more than two hours after it was stolen. From this evidence the jury was authorized to conclude beyond a reasonable doubt that appellant was guilty of the theft of the truck under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hicks v. State, 196 Ga. App. 180-181 (1) (396 SE2d 33) (1990).

Decided April 7, 1992.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0530.
    MORRIS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (418 SE2d 119)
   Birdsong, Presiding Judge.

This is an appeal from the jury verdict and judgment for defendant/appellee State Farm Mutual Automobile Insurance Company (State Farm) in a suit brought by appellant for PIP or “no fault” benefits, penalties, punitive damages, and attorney fees allegedly arising from the processing of a claim based on an insurance policy issued by appellee and insuring appellant. There are nine enumerations of error. Held:

1. Appellant asserts the trial court erred in refusing to charge appellant’s request no. 17 (a) “that the issue of the insurer’s good faith is to be determined by the events and circumstances during the thirty-sixty day time period.” Although this charge comes from Lawson v. State Farm &c. Ins. Co., 256 Ga. 285, 286 (347 SE2d 565), the language thereof does not establish an acceptable format for a charge of general applicability. “[T] hough the language used in a particular appellate decision may embody sound law, it is not always appropriate to employ such language in instructing the jury.” Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746). For example, the reference on the face of the charge request to a claim “within thirty-sixty day period” is confusing and is not adequately adjusted to preclude a fair risk of misleading the jury. If any portion of a requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper. Hill v. State, 259 Ga. 557, 558 (3 b) (385 SE2d 404); Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267); Jones v. State, 200 Ga. App. 519, 521 (2 c) (408 SE2d 823). Additionally, as in this case, a requested charge properly is refused if the principle involved is substantially covered in the charges given. Mattox, supra at 699 (2).

2. Appellant asserts the trial court erred in refusing to charge appellant’s request no. 10 (a). Pretermitting the question of whether the first part of the requested charge was a complete and accurate statement of the law (compare, e.g., State Farm &c. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 744 (1c) (402 SE2d 759); Baker v. J. C. Penney Cas. Ins. Co., 192 Ga. App. 134, 136 (384 SE2d 233); Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 607 (2) (359 SE2d 399); Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230, 235 (274 SE2d 623); Jenkins & Miller, Ga. Auto. Ins. Law, § 26-2), the last sentence thereof pertaining to verifying or disproving the claim “within thirty-sixty day period,” was confusing and not precisely adjusted. Hill, supra; Mattox, supra; Jones, supra.

3. Appellant asserts the trial court erred in refusing to charge appellant’s request no. 13 (a) “that if the insurer has not made a good faith investigation, this in itself is evidence of bad faith.” “A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” (Punctuation omitted.) State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 380 (2b) (364 SE2d 62). Moreover, the instruction appears to be argumentative within the meaning of Ballard v. State, 11 Ga. App. 104 (1) (74 SE 846), and a trial court never errs in refusing to give an argumentative instruction. See, e.g., Broomall v. State, 260 Ga. 220 (4a) (391 SE2d 918). Also, the court substantially instructed the jury as to the meaning of good and bad faith, and when charge request no. 13 (a) is examined within the framework of these charges, it is readily apparent that the giving of this request would run a fair risk of causing not only the requested charge but the related charges to be confusing to the jury.

4. Appellant asserts the trial court erred in charging the jury as to defendant’s charge request no. 5, which appears to adopt certain language found in OCGA § 51-12-5.1 regarding the standard for awarding punitive damages (OCGA § 51-12-5.1 (b)) and the purpose of awarding punitive damages (OCGA § 51-12-5.1 (c)). Although we have been presented with no direct authority for the giving of such a charge, we find that the trial court did not err as asserted. See Collins v. State Farm &c. Ins. Co., 197 Ga. App. 309, 310 (2) (398 SE2d 207).

5. Appellant asserts that the trial court erred in charging defendant’s request to charge no. 7 that “good faith on the part of the defendant can be evidenced by defense to a claim because of a possible preexisting medical condition, because of complex and first impression legal issues and because there exists a bona fide issue of dispute.” The record reflects that after appellant took exception to request to charge no. 7, he withdrew the exception after being advised the particular charge had not been given. The record reflects that request to charge no. 7 was not in fact given by the trial court, rather a modified version of the charge request was given which made no mention of possible preexisting medical conditions or of complex and first impression legal issues.

In these circumstances, we find appellant should not have been misled regarding whether charge request no. 7 had been given, and that his withdrawal of exception was valid and binding. Having failed to take and maintain a timely exception to defendant’s request to charge no. 7, this issue is not preserved for appellate review. OCGA § 5-5-24 (a). Moreover, the charge as given, although not a model for instruction crafting, does not contain a substantial error harmful as a matter of law within the meaning of OCGA § 5-5-24 (c). Additionally, appellant’s enumerations fail to assign as error the modified charge actually given by the trial court, and an enumeration cannot be enlarged on appeal by statements in briefs regarding issues not made in the enumeration. City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493). Finally, the only argument made in appellant’s brief regarding the charge language “and because there exists a bona fide issue of dispute,” was a concession that “the only way the last part of the charge would be appropriate would be if the ‘and’ were an ‘or.’ ” This argument has no applicability to the charge actually given, and all legal issues regarding the charge as actually given, which were neither argued nor supported by citation of authority in appellant’s brief, were waived. Court of Appeals Rule 15 (c) (2).

6. Appellant asserts two specific errors in his sixth enumeration. This practice is prohibited by statute. OCGA § 5-6-40. Although we could refuse to address any error not set out separately (Murphy v. State, 195 Ga. App. 878 (6) (395 SE2d 76)), we may in our sound discretion elect to review any one or more of the assertions of error contained in a single enumeration and treat the rest as abandoned. West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567); see Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820). We elect to review the first assertion of error in the enumeration that the trial court erred in charging defendant’s request no. 20 “that there is no provision under Georgia’s No-Fault Act which authorizes recovery by plaintiff for any alleged mental or physical pain and suffering.” This charge is a correct statement of law. Miller v. Spicer, 147 Ga. App. 759, 761 (6) (250 SE2d 492). Assuming arguendo giving this charge had been error, we are satisfied that the charge, as crafted, would not affect the verdict and was harmless beyond a reasonable doubt. Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756).

Although we have elected not to review the additional assertion of error contained in enumeration no. 6, regarding the trial court’s failure to charge appellant’s request no. 4 (a), we note the charge as a whole is somewhat confusing, appears to incorporate without adequate transition two unrelated legal contentions regarding “pain” and witness credibility, and the last portion thereof also appears to be argumentative. Hill, supra; Mattox, supra; Jones, supra.

7. Appellant asserts the “trial court erred in admitting over objection the report of findings the CT scan performed by” two doctors. We need not resolve whether appellant’s objection at trial solely on the grounds of hearsay without any specific objection as to lack of foundation for the introduction of the medical records pertaining to the CT scan would suffice to preserve this issue for appellate review. The record reflects that apparently the issue of CT scan results initially was called to the jury’s attention, during direct examination, by appellant’s medical expert and then by appellant. It matters not that this procedure may have been prompted by a trial tactic adopted by appellant to minimize the effect of the anticipated later admission of CT scan results by appellee, as it is well established that a party cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing. West v. Nodvin, supra at 829 (3e); Stephenson v. Wildwood Farms, 194 Ga. App. 728, 729 (2) (391 SE2d 706).

8. Appellant enumerates that the trial court erred in its ruling as to the time for determination of bad faith. We observed in Division 1 above that ultimately the issue as to the time for determination of bad faith was substantially covered in the charges given the jury. Mattox, supra. However, appellant asserts he was prejudiced by being unable to argue his position to the jury, because the trial court did not reverse its erroneous position until after argument was completed. The record reflects that after closing argument when the trial court informed counsel of its change of position and of its intent to modify its charge to the jury, neither party requested reargument. “If the appellant was misled by the court’s action, it was incumbent on him to request to reargue. . . . Failure to do so acts as a waiver.” Hall v. State, 259 Ga. 243, 245 (4) (378 SE2d 860), overruled in part on other grounds, Heard v. State, 261 Ga. 262, 263 (3) (403 SE2d 438).

9. Appellant asserts the trial court erred in admitting over objection a certified copy of a complaint filed in a 1982 accident and the interrogatories and certain discovery pertaining thereto. The trial court admitted these documents for purposes of impeachment.

As a general rule, a party may show anything which may, in the slightest degree, affect the credit of an opposing witness. McGriff v. McGriff, 154 Ga. 560, 561 (5) (115 SE 21); Agnor, Ga. Evidence, Credibility and Impeachment, § 5-1. “ ‘A witness may be impeached by disproving the facts testified to by him.’ [Cit.] [And], while a witness may be impeached on a collateral issue which is indirectly material to the issue in the case [cit.], a witness may not be impeached because of a discrepancy as to a wholly immaterial matter.” Gilbert v. State, 159 Ga. App. 326, 327 (2) (283 SE2d 361). A witness can be impeached as to matters relevant to his testimony and to the case, and by disproving facts testified to by him. See OCGA §§ 24-9-82; 24-9-83. And evidence tendered for purposes of impeachment need not be of the kind or quality required for proving the facts in issue. Smith v. State, 190 Ga. App. 6, 7 (2) (378 SE2d 349).

We are satisfied that appellant was not impeached as to wholly immaterial matters, but was attempted to be impeached as to matters at least indirectly if not directly material as to appellant’s testimony and to issues in this case. The evidence in issue had some relevancy and materiality for purposes of tending to disprove certain facts to which appellant had testified. A trial court enjoys a wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 645 (8) (398 SE2d 179); cf. Thomas v. Clark, 188 Ga. App. 606, 608 (4) (373 SE2d 668); Long v. State, 185 Ga. App. 277 (363 SE2d 807). And the record does not establish the trial court abused its discretion in admitting the evidence for purposes of impeachment.

Decided April 7, 1992.

McReynolds & Welch, Aubrey T. Villines, Jr., for appellant.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, J. Calhoun Harris, Jr., for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.