text:
    76674.
    WHITE et al. v. FIDELITY NATIONAL BANK et al.
    (373 SE2d 640)
   McMurray, Presiding Judge.

Plaintiffs Phillip White, Jr. and Bertha White brought suit against defendants Fidelity National Bank and James H. Sanders, Jr. seeking actual and punitive damages for the wrongful repossession of a bus which plaintiffs owned. Defendants answered the complaint, denying any liability to plaintiffs. Nearly two months later, defendant Fidelity National Bank filed a counterclaim to recover the principal and interest due on a note which plaintiffs executed in favor of the bank.

Upon the completion of discovery a pre-trial order was entered in the case. The order recited that the jury was to determine the issues presented in the main claim and the counterclaim. In pertinent part, the order read: “There are no motions or other matters pending for consideration by the court except . . . Motion to Strike the Defendant’s Counterclaim.” Apparently, the pre-trial order was referring to a proposed motion to strike which plaintiffs filed after the pre-trial order was entered.

The motion to strike attacked the defendant’s counterclaim on the ground that, as a compulsory counterclaim, it should have been filed when defendants answered the complaint. Defendant Fidelity National Bank responded to the motion to strike by pointing out that plaintiffs were not prejudiced by the failure to assert the counterclaim promptly. Subsequently, that defendant moved for leave of court to set up an omitted counterclaim by amendment pursuant to OCGA § 9-11-13 (f). In support of that motion, defense counsel submitted an affidavit in which she averred that, interalia, “plaintiffs were aware of defendant’s intent to pursue a counterclaim from early in the litigation.”

The trial court granted plaintiffs’ motion to strike the counterclaim. It also granted leave of court to allow defendant Fidelity National Bank to set up its counterclaim by amendment and the counterclaim was filed once again.

The case proceeded to trial. The trial court directed a verdict for defendant Fidelity National Bank on its counterclaim (in the amount of $64,068.11). The jury returned a verdict for the bank on the counterclaim pursuant to the trial court’s direction. It also returned a verdict for plaintiffs (in the amount of $2,600 actual damages and $1.00 punitive damages) on the main claim. Judgment was entered accordingly and plaintiffs moved for a new trial. The motion for a new trial was denied and this appeal followed. Held:

1. OCGA § 9-11-13 (f) provides: “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” The phrase “when justice so requires” furnishes an independent ground for setting up an omitted counterclaim. Thus, a trial court should grant leave to set up an omitted counterclaim “when justice so requires” even though the other grounds, “oversight, inadvertence, or excusable neglect” are not present. Kitchens v. Lowe, 139 Ga. App. 526, 527 (1) (228 SE2d 923). Whether justice requires the grant of leave to set up an omitted counterclaim is a matter which addresses itself to the sound discretion of the trial court. Unnever v. Stephens, 142 Ga. App. 787, 788 (2) (236 SE2d 886).

In the case sub judice, plaintiffs knew of the existence of the counterclaim long before leave to set it up was granted. They have not shown how they were prejudiced as a result of the granting of leave. Accordingly, it cannot be said the trial court abused its discretion in granting leave to set up the omitted counterclaim. Williams v. Buckley, 148 Ga. App. 778, 779 (252 SE2d 692); Blount v. Kick-lighter, 125 Ga. App. 159 (186 SE2d 543).

The mere fact that defendant’s motion for leave to set up the omitted counterclaim was not outlined in the pre-trial order is immaterial. The trial court was empowered to modify the pre-trial order in its discretion to “prevent manifest injustice.” Shedd v. Goldsmith Chevrolet, 178 Ga. App. 554, 555 (la) (343 SE2d 733).

2. In the midst of the trial, defendants’ counsel informed the trial court that certain documents falling within plaintiffs’ notice to produce had not been shown to plaintiffs. (Other documents had been shown to plaintiffs before the trial began pursuant to the notice.) Plaintiffs moved for a mistrial and a recess was taken to enable plaintiffs’ counsel to review the documents in question. When the trial resumed, the trial court asked whether plaintiffs had been harmed by the tardy production. Plaintiffs’ counsel made no specific showing of prejudice; he indicated, however, that he might have examined a previous witness differently if the documents had been produced timely. The trial court ruled that plaintiffs would be able to recall that witness for further examination if they so desired. Plaintiffs declined to recall the witness and the trial court denied plaintiffs’ motion for mistrial.

In their second enumeration of error, plaintiffs contend the trial court erred in refusing to grant the motion for mistrial. This contention is without merit. In the absence of a showing of prejudicial harm, the denial of plaintiffs’ motion for mistrial cannot be deemed erroneous. See generally Murray v. Stratford, 181 Ga. App. 592, 593 (353 SE2d 85).

3. Plaintiffs contend the trial court erred in refusing to allow evidence of similar transactions wherein defendant Fidelity National Bank repossessed other vehicles which collateralized loans. A partial transcript has been included in the record on appeal. It contains a proffer of the similar transaction evidence. The partial transcript does not contain, however, any evidence pertaining to the underlying action. We cannot determine, therefore, whether or not the trial court abused its discretion in disallowing the similar transaction evidence. Simply put, we have no way of knowing whether the proffered evidence was similar to the transaction in the case sub judice.

4. Plaintiffs have filed a “Motion to Remand to Trial Court in Light of Newly Discovered Evidence” in this court. We see no need to consider such a motion which, in essence, amounts to an extraordinary motion for new trial. See OCGA § 5-5-41. See also Bivins v. McDonald, 50 Ga. App. 299 (177 SE 829). The motion is denied.

5. The defendants’ motion to assess damages for a frivolous appeal is denied. See Almond v. Bentley Gray, Inc., 138 Ga. App. 508 (2) (226 SE2d 776).

Decided September 9, 1988

Rehearing denied September 23, 1988

Louis Levenson, for appellants.

Pierre Howard, Jr., James J. Brissette, for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    77019.
    STATE AUTOMOBILE MUTUAL INSURANCE COMPANY v. GROSS et al.
    (373 SE2d 789)
   Banke, Presiding Judge.

Jessie Pope Salter shot and killed his next door neighbor, Alan Gross, with a shotgun, believing that his wife and Gross were having an affair. Gross’s mother thereupon instituted a wrongful death action against Salter, prompting Salter’s homeowner’s insurance carrier, the appellant herein, to seek a judicial declaration that it had no liability in the matter, due to a policy exclusion pertaining to “bodily injury or property damage . . . which is expected or intended by the insured.” The case is before us on interlocutory appeal from the denial of the insurer’s motion for summary judgment in the declaratory judgment action.

There is no question that Salter intended for Gross to die as a result of the shooting, for during his deposition he testified as follows: “Q. Did you shoot it at him or shoot near him? A. I shot right straight at his chest. Q. Did you mean to hit him? A. I meant to kill him. Q. You intended to kill him? A. Uh-huh. Q. You expected that he would die from that shotgun blast? A. I knew he would. Q. Did you shoot him just once? A. I shot him and about the time he hit the ground I shot him again. Q. Why did you shoot him again? A. I wanted to make sure he was dead.”

Notwithstanding this testimony, Salter and Mrs. Gross contend that fact issues exist with respect to the applicability of the policy exclusion in question, due to the existence of psychiatric opinion testimony that Salter acted out of a delusional compulsion and was unable to distinguish between right and wrong at the time of the killing. Held:

In Continental Cas. Co. v. Parker, 167 Ga. App. 859, 861 (307 SE2d 744) (1983), this court held (1) that “it is clearly error to give an exculpatory insanity or delusional compulsion charge as a defense to a civil action for assault or battery seeking compensatory damages,” and (2) that “[i]f the defense cannot be used to determine [an insured’s] ultimate liability [for such damages], it certainly should not be used in determining his insurer’s coverage. . . Subsequently, however, in State Farm Fire & Cas. Co. v. Morgan, 185 Ga. App. 377, 380 (364 SE2d 62) (1987), this court interpreted Parker, supra, as having held that “insanity is a defense to an intentional tort.”

At issue in Morgan was whether voluntary intoxication could destroy a person’s capacity to intend or expect the consequences of his acts within the contemplation of a policy exclusion such as the one at issue in the present case. We held that it could, and that holding was subsequently affirmed by the Supreme Court in State Farm Fire & Cas. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988). In the case before us, of course, the appellees do not contend that the insured’s capacity to intend the consequences of his actions was destroyed by intoxication but by insanity, as established by psychiatric opinion testimony that he was unable to distinguish between right and wrong at the time of the shooting (see OCGA § 16-3-2) and was suffering from a delusional compulsion which overmastered his will to resist committing the crime. See OCGA § 16-3-3.

In order for a delusional compulsion to constitute a defense to a criminal charge, it must be as to a fact which, if true, would justify the act. See Brown v. State, 228 Ga. 215, 217-218 (184 SE2d 655) (1971); McMachren v. State, 187 Ga. App. 793 (371 SE2d 445) (1988). The delusion from which Salter was purportedly suffering at the time he shot the decedent—i.e., that the decedent was having an affair with his wife—obviously was not as to a fact which, if true, would have justified the killing. See Burger v. State, 238 Ga. 171 (1) (231 SE2d 769) (1977). Nor, just as obviously, would such a delusion have deprived Salter of the capacity to intend the consequences of the shooting.

With respect to Salter’s purported inability to distinguish between right and wrong at the time of the shooting, it is similarly apparent, under the undisputed facts of this case, that such inability had no effect on his capacity to intend the consequences of his actions. Salter freely admitted that he shot the decedent for the specific purpose of killing him, and the record reveals without dispute that at the time of the shooting he was leading a relatively normal day-to-day life, which included holding a job, maintaining a checking account, keeping his automobiles in working order, paying bills, and raising three children. Under such circumstances, there is no basis whatever for a conclusion that his ability to intend the consequences of the shooting was undermined by his purported inability to appreciate the rightness or wrongness of his conduct. Accord Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 813 (324 SE2d 510) (1984) (holding that evidence establishing lack of criminal intent “does not necessarily demonstrate, in a civil case, that the act is not intentional”). For these reasons, we hold that the trial court erred in denying the appellant insurer’s motion for summary judgment in the present action.

Judgment reversed.

Birdsong, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

In State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (364 SE2d 62) (1987), I concurred in the judgment only, partially because I did not wholly agree with the statement that “the rule is that insanity is a defense to an intentional tort.” Id. at 380. Insanity may be a defense. It depends on whether the insanity affected the person’s intent-forming capacity on the occasion in question. If there is evidence that the insanity was such as to preclude the forming of intent to do the act complained of, then the jury must decide whether such an intent was present or blocked. If the evidence of intent to do harm is such that it existed in spite of the insanity, then insanity is irrelevant on the issue of intent. This is so even if the insanity is such that it would excuse the actor from criminal responsibility, applying the criminal law standard of insanity. As the Supreme Court summarized in State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988): “The policy here deals simply with presence of intent or expectation and not with factors contributing to or subtracting from intent or expectation.” (Emphasis supplied.) What caused him to have the intention (or expectation) is not what matters; what matters is whether he had the intention or not. For the same reason, the criminal ramifications of the cause of the intention are irrelevant.

Thus, in the present case, whether the actor could distinguish between right and wrong, or could not resist committing the act, do not create a jury issue, given the unrebutted testimony of the actor that he intended the act and its harmful consequences. The latter is what controls, when the question is whether the bodily injury or property damage for which insurance coverage is sought was “expected or intended by the insured.” The exclusion is not limited to rational intentions.

This case differs from State Farm Fire &c. Co., supra, because there the evidence did not conclusively establish that the insured intended or expected injury as a consequence of his act. Here it does. Cf. Roe v. State Farm &c. Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988).

Decided September 9, 1988

Rehearing denied September 23, 1988

F. Thomas Young, Daniel C. Hoffman, for appellant.

J. Converse Bright, Richard J. Joseph, William S. Perry, George T. Talley, for appellees.


author: Banke, Presiding Judge.

text:
    77066.
    COMPUTER COMMUNICATIONS SPECIALISTS, INC. v. HALL.
    (373 SE2d 630)
   Banke, Presiding Judge.

Hall sued Computer Communications Specialists, Inc. (CCS) to recover $184,201 in commissions which he had allegedly earned while employed as a salesman for CCS. Additionally, he sought to recover punitive damages and attorney fees based on alleged misconduct by CCS in connection with the termination of his employment. CCS, in turn, counterclaimed to recover $5,769 in alleged overpayments made to Hall. The trial court directed a verdict against Hall on his punitive damage claim, and a jury awarded him $68,681 on his remaining claims. CCS filed this appeal from the denial of its motion for new trial.

CCS was in the business of selling custom-designed computer equipment and programming. Hall was hired as a salesman for the company in October of 1983 and subsequently signed several written agreements governing his right to compensation, including commissions. Each of these written agreements specified that he would be credited with the commission earned on a sale on the date the sale was invoiced and that “[u]nder no circumstances [would] commissions be paid on invoices issued after the date of termination” of his employment. Hall contends that he was nevertheless entitled to commissions on certain sales which were not invoiced until after he was terminated, based on certain oral representations allegedly made to him by company officials to the effect that sales made by him would be invoiced within 90 days from the date they were made. CCS contends that it never made any such representations to Hall and that, due to the amount of time needed to prepare specifications and develop programming after an order was placed, it would have been impossible to meet such a deadline.

When Hall’s employment was terminated in October of 1985, he took the position that CCS owed him unpaid commissions, and CCS took the position that it had paid him commissions which he had not earned. Ultimately, CCS offered to pay Hall $50,000 in settlement of the parties’ mutual claims, provided he would agree in writing not to compete against the company or to disclose certain trade secrets and confidential information to which he had been privy during tenure with the company. Hall refused to sign such an agreement and instituted the present action. The jury’s award of damages to him in the amount of $68,681 evidently was derived by taking CCS’s $50,000 settlement offer, reducing it by the $5,769 in alleged overpayments claimed by the company, and adding $24,450, which was the amount of attorney fees claimed by Hall. Held:

1. CCS contends that the trial court erred in admitting evidence concerning the settlement offer which it made to Hall subsequent to the termination of his employment. The company filed a motion in limine seeking to exclude all such evidence prior to trial and also objected during the trial when such evidence was offered by Hall.

Pursuant to OCGA § 24-3-37, “admissions or propositions made with a view to a compromise are not proper evidence.” OCGA § 24-3-37. The purpose of this Code section is “to encourage settlements and protect parties who freely engage in negotiations directed toward resolution of lawsuits.” Graves v. Graves, 252 Ga. 27, 28 (310 SE2d 901) (1984). It has been held applicable, however, only to “admissions . . . which are made as a concession to bring about a compromise or settlement” and not to “independent statements of fact by a party, even though made while the parties are trying to settle. . . .” Austin v. Long, 5 Ga. App. 551 (63 SE 640) (1909). Accord Teasley v. Bradley, 110 Ga. 497 (6) (35 SE 782) (1900); Campbell v. Mut. Svc. Corp., 152 Ga. App. 493 (2) (263 SE2d 202) (1979); Allen v. Brackett, 165 Ga. App. 415 (1) (301 SE2d 486) (1983).

Quite clearly, the purpose of the offer made by CCS in the present case was to settle its commission dispute with Hall while simultaneously securing his agreement not to compete against the company or disclose confidential information concerning its operations. There was no evidence that the company’s management ever said or did anything during these negotiations which could be construed as an independent admission of fact supporting the validity of Hall’s commission claim. Indeed, Hall concedes in his brief on appeal that CCS “never acknowledged that it owed [him] any commissions whatsoever.” Under such circumstances, the evidence concerning the settlement negotiations between the parties and the offers made by the company during those negotiations was inadmissible, and the trial court erred in allowing it.

We reject Hall’s contention that CCS waived its objection to the admissibility of this evidence by itself introducing certain evidence regarding the settlement negotiations. It is evident that the evidence in question was offered by CCS solely for the purpose of mitigating the damage done by the evidence already introduced by Hall on the issue. Under such circumstances, the objection was not waived. See Collins v. Davis, 186 Ga. App. 192, 193 (366 SE2d 844) (1988).

2. In its second enumeration of error, CCS contends that the trial court “erroneously submitted the terms of an unambiguous contract to the jury for construction.” Central to Hall’s claim for commissions was his contention, supported solely by his own testimony, that CCS officials had promised him his sales would be invoiced within 90 days. In the present enumeration of error, CCS apparently contends either that Hall’s testimony in this regard should have been excluded as parol evidence purporting to vary the terms of the written contracts, or that the trial court should have directed a verdict in its favor on Hall’s commission claim notwithstanding such parole evidence. However, as no references whatsoever are made to the transcript in connection with this enumeration of error, it is not possible to determine what ruling of the trial court, if any, is actually complained of in this regard. Consequently, this enumeration of error presents nothing for review. See generally Court of Appeals Rule 15 (c) (3). Accord OCGA § 5-6-48 (f).

3. CCS contends that the trial court erred in denying its motion for directed verdict on Hall’s claim for attorney fees. We agree. In order to recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11, the plaintiff must show that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. It is well settled that the “bad faith” contemplated by this Code section is bad faith connected with “the transaction and dealings out of which the cause of action arose,” rather than bad faith in defending or resisting the claim after the cause of action has already arisen. See Brooks v. Steele, 139 Ga. App. 496, 498 (2) (229 SE2d 3) (1976), quoting Traders’ Ins. Co. of Chicago v. Mann, 118 Ga. 381, 385 (45 SE 426) (1903).

Hall contends that CCS acted in bad faith by offering to pay him $50,000 to sign the non-competition agreement after his employment was terminated and thereby attempting to deprive him of a livelihood at a time when he was financially vulnerable. CCS sought to explain its actions in this regard by introducing evidence that, upon being terminated, Hall had threatened to use to the company’s detriment the information concerning its customers and operations which he had acquired during the course of his employment; and Hall did not deny having made such a threat. It is quite clear from this and other evidence in the case that the company’s attempt to secure Hall’s signature on the non-competition agreement was totally unconnected with the dealings and events giving rise to the commission claim; and we cannot, in any event, conceive of a circumstance in which a defendant would incur liability to a plaintiff for attorney fees simply by offering to settle a disputed claim on terms which the plaintiff found unsatisfactory and refused to accept. We accordingly hold that the trial court erred in refusing to direct a verdict in favor of CCS on its claim for attorney fees.

Decided September 6, 1988

Rehearing denied September 23, 1988.

Michael Weinstock, Stephen M. Katz, for appellant.

Richard P. Decker, Adrian F. Lanser III, for appellee.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    76628.
    LISSMORE v. KINCADE et al.
    (373 SE2d 819)
   McMurray, Presiding Judge.

Mary Lissmore (plaintiff) brought an action against Pauline Kincade and F. J. Norman, Jr. (defendants), seeking damages for injuries she allegedly sustained when the vehicle in which she was a passenger collided with vehicles being operated by defendants. The evidence adduced at a jury trial showed that at about 11:30 in the morning on February 21, 1986, plaintiff was a passenger in an automobile being operated by Willa K. Cornelius. Ms. Cornelius was traveling south on Highway 41 between Hahira, Georgia and Valdosta, Georgia. Defendant Kincade was operating a vehicle in front of Ms. Cornelius and defendant Norman was operating a pickup truck behind the Cornelius vehicle.

About four miles north of Valdosta, defendant Kincade noticed a Georgia State Patrol roadblock and, in preparation for an identification check, she “moved over a little and . . . tried to . . .” open the glove compartment to retrieve her insurance identification card. In the process, defendant Kincade “accidently hit [the] brakes . . . ,” causing her car to stop “on the side of the highway,” “[n]ot too far . . .” from the roadblock. In response, Ms. Cornelius came “to a rapid stop . . .” and defendant Norman took evasive action, maneuvering his truck to the “ditch” on the side of the road. “As [defendant Norman] went around the Cornelius vehicle, [his] left rear struck her right rear fender . . . ,” propelling the Cornelius vehicle into defendant Kincade’s vehicle. From this and other evidence adduced at trial, the jury returned a verdict in favor of defendants. This appeal followed the denial of plaintiff’s motion for new trial. Held:

1. Contrary to plaintiff’s first contention, the evidence was sufficient to support the verdict for defendants.

“ ‘ “In passing on the sufficiency of the evidence to support the verdict, the appellate courts are to afford the evidence that view which is most favorable to the [prevailing party] and which is designed to uphold the verdict. All conflicts must be rendered against the [non-prevailing party], and if there is any evidence to support the verdict it must be affirmed. (Cit.)” ’ Rollins v. Great Southwest Fire Ins. Co., 162 Ga. App. 139, 141 (290 SE2d 353) (1982).” Childers v. Morris, 166 Ga. App. 229 (1) (303 SE2d 769). In the case sub judice, the jury might have concluded that Ms. Cornelius negligently failed to signal her stop and that that negligence was greater than either the negligence of defendant Kincade or the negligence of defendant Norman. See Converse v. O’Keefe, 148 Ga. App. 675, 676 (1) (252 SE2d 92). This conclusion is supported by defendant Norman’s testimony that Ms. Cornelius came “to a rapid stop” in the roadway and plaintiff’s testimony that Ms. Cornelius merely “stopped” in reaction to defendant Kincade’s maneuver. In any event, the absence of Ms. Cornelius’ testimony as to her reaction to the situation leaves a void link which cannot cast a presumption of negligence against either defendant Kincade or defendant Norman. See Lamb v. Central Ga. Elec. &c. Corp., 136 Ga. App. 863 (1) (222 SE2d 679).

2. In her second enumeration of error, plaintiff contends the trial court erred in failing to allow her opening and concluding arguments. A review of the trial transcript shows that defendant Kincade was allowed opening and concluding arguments and plaintiff was allowed opening and concluding arguments as to defendant Norman. Plaintiff’s attorney and defendants’ attorneys waived opening arguments and defendant Norman argued first, followed by plaintiff and then defendant Kincade. Plaintiff objected, arguing that she was entitled to opening and concluding arguments by virtue of the fact that defendant Kincade presented evidence at trial.

(a) “In civil actions, where the burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and concluding arguments except that if the defendant introduces no evidence or admits a prima facie case, he shall be entitled to open and conclude.” Uniform Rules for the Superior Court Rule 13.4, 253 Ga. 801, 825. However, the “rule that a defendant presenting no evidence is entitled to speak last, e.g., Sutherland v. Woodring, 216 Ga. 621 (118 SE2d 482); American Casualty Co. v. Seckinger, 108 Ga. App. 262 (132 SE2d 794) yields to the right of plaintiff to close as to all defendants where some though not all defendants have presented evidence. King v. King, 37 Ga. 205, 216; Doster v. State, 25 Ga. App. 723 (104 SE 642). This is also the rule applied . . . where defendants are specifically sued as joint tortfeasors. Co-Op Cab Co. v. Preston, 67 Ga. App. 580, 581 (21 SE2d 251). ‘The question for the court in all such cases, is, was there any evidence introduced for the defense, against the complainant’s demand? If there was, then the complainant’s solicitor is entitled to open and conclude the argument before the jury.’ King v. King, supra, p. 216.” Gilson v. Mitchell, 131 Ga. App. 321, 332 (205 SE2d 421).

In the case sub judice, defendant Kincade’s counsel examined his client after plaintiff called her for cross-examination. No further evidence was offered by defendant Kincade. Defendant Norman was not summoned by plaintiff for cross-examination. However, after the close of plaintiff’s case, defendant Norman presented evidence by testifying on his own behalf.

While the examination of defendant Kincade by her attorney while on the stand after call by plaintiff for cross-examination did not constitute an offer of evidence as to justify denying her the right to opening and concluding arguments, Hamby v. Hamby, 103 Ga. App. 826 (3), 832 (121 SE2d 169), defendant Norman’s testimony in defense of plaintiff’s claim terminated defendant Kincade’s right to opening and concluding arguments. Gilson v. Mitchell, supra. Consequently, since defendants were properly sued as joint tortfeasors, e.g., Gilson v. Mitchell, 131 Ga. App. 321, 330, 331, supra, plaintiff had the right to open and close the argument to the jury as to both defendants.

“Improper denial of the right to open or conclude, where injury results, will work a reversal unless the verdict was demanded by the evidence. [Cits.]” Gilson v. Mitchell, 131 Ga. App. 321, 332, supra. Although the evidence was sufficient to authorize the jury’s verdict in the case sub judice, it did not demand a verdict for defendants. (Compare Division 1 of this opinion.) Accordingly, the judgment on the jury’s verdict must be reversed. See Jefferson v. State, 186 Ga. App. 40 (366 SE2d 399).

(b) Next, we address defendant Norman’s argument that “[t]his enumeration of error does not directly affect [him] because [plaintiff] did have closing as to [defendant Norman].” This reasoning was addressed in Gilson v. Mitchell, 131 Ga. App. 321, 333, supra, and this court held that “reversal runs to all defendants.” For the same reasons enunciated in Gilson, reversal is required as to both defendants in the case sub judice.

3. Plaintiff’s argument in support of her third enumeration of error consists of no more than a restatement of the enumeration of error. “That does not constitute an argument in support of the enumeration of error. Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630) (1977). There being neither argument nor citation of authority offered in support of the enumeration of error, it is deemed abandoned. Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia.” Southern R. Co. v. Ga. Kraft Co., 183 Ga. App. 884, 886 (7), 887 (360 SE2d 605).

4. In her fourth, fifth and sixth enumerations of error, plaintiff challenges the trial court’s failure to charge certain of her written requests.

“[I]n all civil cases, no party may complain of . . . the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a). Although this Code section also provides that “[objection need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit,” plaintiff’s objection that the trial court erred in failing to charge her written requests numbered, “4, 5, 6, 7, 10, 11, 12 and 15 . . fails to meet the requirements of the statute.

“The mere exception to a failure to give a numbered request to charge fails to meet [the] requirement [of OCGA § 5-5-24 (a)]. U. S. Security Warehouse, Inc. v. Tasty Sandwich Co., 115 Ga. App. 764 (1) (156 SE2d 392). ‘To be reviewable the objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must point out distinctly the portion of the charge challenged. The grounds of error urged must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to what the specific ground of challenge is. The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error.’ Ga. Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393).” Black v. Aultman, 120 Ga. App. 826 (1), 827 (172 SE2d 336). However, OCGA § 5-5-24 (c) provides that “[notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” In the case sub judice, the refusal to give the charges requested show no such harmful error as a matter of law so as to require their consideration under subsection (c) of the statute.

5. Plaintiff’s seventh enumeration of error is unclear and the argument in support thereof is seemingly unrelated to the enumeration of error. However, an examination of pertinent portions of the trial transcript reveals that plaintiff’s complaint stems from the trial court’s ruling, limiting her attorney’s cross-examination of defendant Norman with regard to identification of a document which purportedly reflects a reproduction of a photograph of defendant Norman’s pickup truck. More specifically, the trial court sustained defendant Norman’s attorney’s objection that “those reproductions are so poor [that] it’s not even reasonable that anybody could say for certain, with any reasonable certainty and with any probative value, that those pictures represent what plaintiff’s counsel obviously is trying to get somebody to tell him it represents.”

“ ‘The question of the sufficiency of the preliminary proofs to identify photographs, or to show that it is a fair or accurate representation of the objects which it purports to portray, is a question committed to the discretion of the trial judge. (Cits.)’ Johnson v. State, 158 Ga. 192, 198 (123 SE 120).” Byrd v. State, 182 Ga. App. 284, 286 (4) (355 SE2d 773). In the case sub judice, plaintiff’s attorney failed to include the document which was the subject of defendant Norman’s objection in the trial record. Consequently, we have nothing to review and we must assume the trial court did not abuse its discretion in sustaining defendant Norman’s objection. See Weeks v. Hosch Lumber Co., 133 Ga. 472 (2b), 477 (66 SE 168); Page v. Brown, 192 Ga. 398, 401 (6) (15 SE2d 506), and McKee v. Hurst & Company, 21 Ga. App. 571 (1) (94 SE 886). Compare Athens Mfg. Co. v. Malcolm, 134 Ga. 600 (2) (68 SE 329).

Decided September 23, 1988.

Jack W. Carter, for appellant.

James B. Thagard, Richard J. Joseph, for appellees.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76736.
    SUN et al. v. JONES et al.
    (373 SE2d 656)
   McMurray, Presiding Judge.

Joseph Sun, as father of Wesley Sun and Kristi Sun (minors), and individually (plaintiffs) brought an action against Malcolm Jones, Barbara Jones, Alice Rawlins Braswell and Mary Thompson (defendants), seeking damages for the alleged tortious conduct of defendants. The trial court subsequently dismissed plaintiffs’ complaint “for want of prosecution . . . ,” after the “case [was] called in open court on the 29th day of May, 1987,” and after “the attorney for the [plaintiffs] . . . made no appearance or announcement on behalf of his [clients] 99

On December 3, 1987, plaintiffs filed a motion to vacate the trial court’s order dismissing their complaint, arguing that plaintiff Joseph Sun, in his several capacities, “never received a notice of the call of the case. . . .” The trial court denied this motion, finding that “the file indicates that notice of the May 29, 1987 hearing was sent to [Joseph Sun’s] last known address; and . . . the notice was returned to the clerk’s office with the notation that there was no forwarding order on file and that the post office was unable to forward the notice . . . .” This pro se appeal followed. Held:

1. In the sole enumeration of error, plaintiff Joseph Sun contends the “[t] rial court abused its discretion in denying [his] Motion to Vacate ... in that it denied [his] right to due process of the law under the Fifth and Fourteenth Amendment of the Federal Constitution.”

Decided September 23, 1988.

Joseph Sun, pro se.

Malcolm Jones, Barbara Jones, Alice Braswell, Mary Thompson, pro se.

“Under Code Ann. § 81A-105 (b) [now OCGA § 9-11-5 (b)] service by mail is permissible. Upon mailing of the service copy, service is complete. The fact that service is complete, if unrefuted, controls. Tyson v. Automotive Controls Corp., 147 Ga. App. 409 (249 SE2d 99) (1978); Farr v. Farr, 120 Ga. App. 762 (172 SE2d 158) (1969). [In the case sub judice, it] is undisputed that service was made in compliance with the provisions of Code Ann. § 81A-105 (b) [now OCGA § 9-11-5 (b)]. Where service is properly made, actual notice is not required. Cf. Kiki Undies Corp. v. Promenade Hosiery Mills, 308 FSupp. 489 (S.D. N.Y. 1969) (construing Rule 5 (b), F.R.C.P.).

“ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated ... to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (70 SC 652, 94 LE 865) (1949). The notice provided by Code Ann. § 81A-105 (b) [now OCGA § 9-11-5 (b)] is reasonably calculated to inform parties of matters affecting their interests. There is no constitutional requirement beyond this. We conclude that once apprised of the pendency of a lawsuit a party’s constitutional right to notice and an opportunity to be heard is met by the service by mail provided by Code Ann. § 81A-105 (b) [now OCGA § 9-11-5 (b)].” Allen v. Bd. of Tax Assessors, 247 Ga. 568, 569 (277 SE2d 660). Accordingly, the trial court did not err in denying plaintiff’s motion to vacate. See Regante v. Reliable-Triple Cee, 251 Ga. 629, 630 (2) (308 SE2d 372).

2. Defendant Mary Thompson’s motion for an assessment of damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Benham, Judge.

text:
    76773.
    ROBINSON v. THE STATE.
    (373 SE2d 825)
   Benham, Judge.

Appellant was convicted of interference with government property (OCGA § 16-7-24). On appeal, he challenges the sufficiency of the evidence. Finding the evidence to be sufficient, we affirm the judgment.

Decided September 23, 1988.

D. Wayne Rogers, for appellant.

Joseph H. Briley, District Attorney, for appellee.

At trial, a correctional officer who worked at the Youthful Offender Correctional Institution testified that while watching a closed circuit television monitor, he saw appellant, an inmate, breaking light fixtures and light bulbs with a stick. The officer called his supervisor, who also observed appellant’s actions. The supervisor testified that he saw appellant break 10 or 12 fixtures and bulbs with a broomstick before he apprehended him. Both officers positively identified appellant as the person who caused the damage. Additional testimony showed that a total of eight fixtures and 20 to 25 light bulbs had been broken. The damaged and destroyed items were identified as being state property inside a state institution. The jury returned a verdict of guilty on the interference charge, and was polled as to the unanimity of its verdict. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of interference with government property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-7-24 (a); Fields v. State, 167 Ga. App. 400 (2) (306 SE2d 695) (1983).

Judgment affirmed.

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


text:
    76895—76899.
    In the Interest of Y. P. et al.
    (373 SE2d 657)
   Benham, Judge.

These are the cases of five children who were placed in emergency custody of the Tift County Department of Family & Children Services (DFCS) in February 1986, after their natural mother and their putative fathers had allegedly neglected and/or abused them. In July 1987, the Georgia Department of Human Resources (DHR), acting through the Tift County DFCS, filed petitions to terminate the mother’s and fathers’ parental rights in the children. After appropriate notice had been given and a hearing had been held, the juvenile court judge found, inter alia, that there was clear and convincing evidence the children were “deprived” within the meaning of OCGA § 15-11-2 (8) (A), and terminated the parents’ rights. OCGA § 15-11-81. The mother filed appeals in all five cases, and we have consolidated them. Appellant’s sole enumeration of error is that the trial court erred in terminating her parental rights, since her alleged misconduct and parental unfitness were due to her penury and not to conduct profoundly detrimental to the children. After reviewing the evidence of record, we disagree and affirm the judgments of termination.

The standard of appellate review in such termination cases is whether, after reviewing the evidence in the light most favorable to appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982). The record shows that while the children were in appellant’s care, the children and their clothing were very dirty; that the three youngest children did not own any socks or underwear; and that on occasions the children had to miss school because they had no clean clothes and no shoes to wear. The children were not adequately fed, and although appellant received AFDC and food stamps, several days after she received them, there would be no evidence of food purchases or of the stamps. When the children were sick, their mother did not attempt to get medical care for them, even though it would have been provided at little or no cost through Medicaid. Appellant’s husband broke one of the children’s arms, and two days later appellant had not taken her to the doctor, even though the child’s arm had turned green and she screamed when someone touched it. Appellant did nothing to protect her children from the physical and emotional abuse to which her husband subjected them, although she knew he was prone to violence and had harmed her and them in the past. The testimony also revealed that appellant had not been able to meet the goal of maintaining a residence for herself or her children, although she had been provided with decent and affordable living quarters, furniture, and other assistance provided by the available community resources; and that she had moved or been evicted at least nine times in the 18 months that DFCS had had custody of the children. The living conditions at the time of the hearing were described as “deplorable,” due to the stench that permeated the unit, the insect infestation, the filth, and other problems. Appellant had not benefited from counseling and other social assistance provided to her, and she showed no signs of capability or willingness to improve. She was unable or unwilling to secure and maintain a job to attempt to support herself and her children; her one attempt at working outside the home was a three-hour-a-day job at a nursing home, which lasted seven weeks before she was terminated for “lack of effort.” While the children were in DFCS custody, appellant did not pay any child support to the department.

Appellant contends that her situation is like that in Shouer v. Dept. of Human Resources, 155 Ga. App. 38 (270 SE2d 462) (1980), in which this court reversed the judgment of termination. We do not agree. In Shover, the mother did have employment, even though she made only $20 per week. She had agreed to work with the DFCS to furnish adequate care and control of her infant, and there was nothing to show that she was unable or unwilling to do so. There was evidence that she was capable of caring for her child, and there was no evidence that the child had been physically or emotionally abused. Mrs. Shover had been able to maintain stable, albeit meager, living quarters for herself. Appellant here had been given opportunities to improve her situation and was either unable or unwilling to utilize those opportunities. “In the period following the placement of [the children] in foster care, the appellant made no progress towards establishing a stable home and removing herself for her children’s sake from [the presence of] the father of [some of] the children, who was determined to have . . . [physically] abused the other; and moreover, she offered no plan or course of endeavor suggesting she could in any manner establish a home for [the children] away from [that influence]. . . . Any rational trier of fact could find clear and convincing evidence in this case that the causes and conditions of the deprivation of these children ‘are likely to continue and will not be remedied, and that by reason thereof, the children have suffered, and, if parental rights are not terminated, would probably suffer serious physical, mental or emotional harm.’ . . .” In the Interest of S. G. & T. G., 182 Ga. App. 95, 101 (354 SE2d 640) (1987).

Decided September 23, 1988.

Larry B. Mims, for appellant.

Kathy S. Whitman, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

Judgments affirmed.

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


text:
    76980.
    WHITE v. WHITE et al.
    (373 SE2d 824)
   McMurray, Presiding Judge.

When this court issues an order granting a discretionary appeal, the applicant must file a notice of appeal within ten days of the issuance of the order. OCGA § 5-6-35 (g). The timely filing of the notice of appeal is an absolute prerequisite in order to confer jurisdiction on this court. Moncrief v. Tara Apts., 162 Ga. App. 695 (293 SE2d 352).

In the case sub judice, an order was issued on February 5, 1988, granting a discretionary appeal in this child custody case. Appellant did not file a notice of appeal until February 17, 1988.

The Clerk of the Superior Court of Atkinson County has certified that that court was open for business on February 15 and 16, 1988. It appears, therefore, that the notice of appeal was filed two days late. Held:

Decided September 23, 1988.

Mitchell 0. Moore, for appellant.

William A. King, for appellees.

The burden is on the appellant to file his notice of appeal in a timely fashion. Rogers v. Rogers, 238 Ga. 576 (234 SE2d 495). “The burden is not satisfied by relying on the postal delivery but may be satisfied only by depositing the notice of appeal with the clerk within the appropriate time frame. Bank of Coweta v. Lee, 153 Ga. App. 33 (264 SE2d 526).” Moncrief v. Tara Apts., 162 Ga. App. 695, supra.

Appellant failed to satisfy the burden of timely filing the notice of appeal. Accordingly, we are without jurisdiction to consider this case. It must be dismissed.

Appeal dismissed.

Pope and Benham, JJ., concur.


text:
    77034.
    HUMPHRIES v. GULF OIL CORPORATION et al.
    (373 SE2d 659)
   McMurray, Presiding Judge.

This is a “slip and fall” case in which the trial court granted summary judgment to defendants. Viewing the evidence most favorably to plaintiff, we find the following:

Plaintiff brought a van to a service station to get it serviced and checked for a trip. The station was operated by defendants. Plaintiff pulled up to the full-service island and the attendant began to fill the van with gas. Because he was pumping the gas too quickly, the attendant spilled it two times. At that point, plaintiff got out of the van and showed the attendant how to pump the gas more slowly.

As the gas was being pumped into the van, the attendant went to the front of the vehicle to open the hood. He asked plaintiff where the hood release was located and plaintiff responded that it was inside the vehicle. The attendant opened the van, looked inside and told plaintiff that he must be mistaken because the release was not inside. Plaintiff replied that it was inside the van. Continuing to converse with the attendant, plaintiff began walking toward the front of the van. He slipped and fell, injuring his arm.

Plaintiff did not know what caused him to fall. He did not know if he “slipped on the gasoline or the hose or what.” Held:

“ ‘ “To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” ’ Key v. J. C. Penney Co., 165 Ga. App. 176-177 (299 SE2d 895). This record is silent as to why or how the [plaintiff] slipped, or upon what. Summary judgment to the [defendant] was proper.” McGauley v.Piggly-Wiggly Southern, 170 Ga. App. 851, 852 (319 SE2d 15). Accord Bradley v. Red Food Stores, 179 Ga. App. 39 (345 SE2d 127); Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669).

Decided September 23, 1988.

J. Michael McGarity, for appellant.

Wade K. Copeland, Pat M. Anagnostakis, for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    76620.
    GIDDENS CONSTRUCTION COMPANY, INC. v. FICKLING & WALKER COMPANY.
    (373 SE2d 792)
   Birdsong, Chief Judge.

This is an appeal of the grant of summary judgment denying punitive damages.

1. Appellee asserts that punitive damages are not recoverable in a contract action and that appellant’s complaint avers no cause of action sounding in tort. We disagree. The substance of matters pleaded in the complaint places appellee on due notice of its alleged liability arising from acts and omissions relating directly and independently to breaches of duty arising from the fiduciary relationship of the parties. The complaint sets forth a cause of action in tort. See Rawls Bros. Co. v. Paul, 115 Ga. App. 731 (1) (155 SE2d 819). We are satisfied that the facts of this case establish that the appellee was the duly appointed subagent of appellant and was appellant’s fiduciary regarding those matters within the scope of the agency. See generally Dolvin Realty Co. v. Holley, 203 Ga. 618, 622 (48 SE2d 109); Stanford v. Otto Niederer & Sons, 178 Ga. App. 56 (1) (341 SE2d 892); see 3 AmJur2d, Agency, § 210-212.

2. We find the facts of this case distinguishable from Williams v. Northside Realty Assoc., 116 Ga. App. 253, 254 (157 SE2d 166). “The cardinal rule of construction [of a contract] is to ascertain the intention of the parties,” OCGA § 13-2-3, and “[e]scrow agreements will be given a reasonable construction in order to carry out the manifest intentions of the parties,” 11 EGL, Escrows, § 6. The addendum creating the escrow expressly provided that time was of the essence and that if the sale was not consummated for any reason by November 30, 1985, the escrow monies would be forfeited. It is clear from the language of the addendum that the parties intended and agreed that the appellant would receive exclusive ownership of the monies in escrow upon their forfeiture, and that, as time is of the essence, the escrow holder would tender the funds immediately to the appellant. Further, it clearly was the intent of the parties that if the sale was not consummated by November 30, 1988, the sales contract immediately would become null and void and the escrow would be automatically and immediately terminated. In this regard, the requirement that “[t]ime is of the essence” was not limited by the parties to any particular provision in the addendum, but was drafted without restriction to apply to all addendum actions intended and agreed upon by the parties. Thus, appellee’s reliance on Williams to shield it from liability is misplaced.

This is not an action between the buyer and seller contesting ownership of the escrow funds, but an action between the seller and his fiduciary. Under the terms of this particular addendum, drafted by the appellee, when the sale was not consummated on the specified date the escrow immediately terminated and any dual agency that may have existed terminated with it. From that point, appellee resumed acting solely as appellant’s fiduciary, subject to all duties that relationship imposed. Among these duties is the duty not to dispute the principal’s (appellant’s) right or title to the funds (money); and, appellee is estopped by law from doing so. OCGA § 10-6-26; Courts v. Jones, 61 Ga. App. 874, 876 (8 SE2d 178); 11 EGL, Estoppel, § 70; see also OCGA § 24-4-24.

3. Appellee claims that it was merely following requirements contained in the Rules of the Georgia Real Estate Commission, § 520-1-.34, by requiring the signing of a release as a prerequisite to the disbursement of the $1,400. We do not find this argument persuasive. First, the Rules do not require the execution of a release of liability by either the buyer or seller prior to disbursement of funds previously held in escrow. Secondly, to the extent that the rules conflict with the terms of the addendum, they are not capable of enforcement. Panfel v. Boyd, 186 Ga. App. 214, 220 (367 SE2d 54), cert. granted. As above discussed, the addendum required appellee to tender immediately the funds to appellant when the sales contract and addendum terminated on November 30, 1985.

Further, appellee’s assertion that he could not give the required 30-day notice, pursuant to § 520-1-.34 (3) is not persuasive. We will not speculate what appellant’s conduct would have been if immediately after the expiration of the extended time period appellee had notified appellant of his intent to disburse the funds to appellant 30 days thereafter, without also demanding the signing of a release of liability as a condition thereto.

Appellee’s other assertions also are without merit.

Considering the above, we find that the trial court’s ruling was erroneous. OCGA § 9-11-56 (c).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

On Motion for Rehearing.

The contract addendum extending the closing date of the sale and perforce creating the escrow pertinently provided that “[i]t is expressly understood . . . that, if for any reason this sale is not consummated by November 30, 1985 the $1,000.00 earnest money and the $400.00 security deposit shall be forfeited as liquidated damages and the sales contract shall become null and void. In such event purchaser shall vacate premises no later than December 10, 1985. Time is of the essence.” (Emphasis supplied.)

Appellee asserts that this court’s decision, if allowed to stand, “will seriously jeopardize the proper functioning of real estate escrow arrangements in this state.” In particular, appellee contests this court’s determination that the escrow agreement immediately terminated upon the purchaser’s failure to close by the extended closing date. We adhere to our decision.

In arriving at our decision, we do not hold that henceforth all escrows will so terminate. What we do hold is that this particular escrow, in light of the wording of the addendum drafted by the appellee itself, was terminated immediately following purchaser’s failure to close. Escrow can be established in any manner not prohibited by law or public policy. In the future, realtors can avoid the effects of this result by providing for a specific escrow termination date; by not making time of the essence without any limitations, that is, by making time of the essence only as to specific identified matters; or, by expressly providing the realtor with a grace period in which to tender the escrow funds, with or without an express requirement that the parties sign a release before the money will be tendered.

We also note that in its motion for rehearing, appellee admits that it is its duty in the event of non-closing “to continue to hold the money until the contract is at an end . . . and then to distribute it to the party entitled to it.” As we stated in the opinion, the unlimited time is of the essence clause operated to make the sales contract null and void immediately when closing was not held on the extended closing date; there never was any genuine doubt under the terms of the addendum written by the appellee as to who was entitled to the money. This is particularly true when that document is viewed in conjunction with the originad sales contract and the so-called Move-In Agreement. If any such doubt had existed, it would have been appellee’s duty as appellant’s fiduciary, at the time appellee drafted the then-proposed addendum, to duly warn his principal of the addendum’s deficiencies before the addendum was executed and the escrow created. See generally Larkins v. Boyd, 205 Ga. 69 (1) (52 SE2d 307); 1A EGL, Agency, § 92; 3 CJS, Agency, § 272; cf., Scott v. Lumpkin, 153 Ga. App. 17 (1) (264 SE2d 514).

Decided September 9, 1988

Rehearing denied September 26, 1988

E. Thomas Shaffer, for appellant.

J. Ellsworth Hall III, for appellee.

We have reexamined the precedent cited by appellee, including Williams v. Northside Realty Assoc., 116 Ga. App. 253 (157 SE2d 166), and conclude that such precedent is distinguishable from the facts of this case.

Regarding appellee’s contention concerning punitive damages, the question of punitive damages is ordinarily for the jury. Caswell v. Jordan, 184 Ga. App. 755 (7) (362 SE2d 769), cert. den. And a breach of fiduciary duties generally is sufficient to support an award of punitive damages arising out of such tortious misconduct. Id.

Motion for rehearing denied.


author: Pope, Judge.

text:
    76487.
    CONAWAY v. THE STATE.
    (373 SE2d 660)
   Pope, Judge.

Kenneth Conaway appeals his convictions of statutory rape and child molestation.

1. Appellant contends the trial court abused its discretion in finding that the victim, his stepdaughter who was six years old at the time of trial, was competent to testify. During questioning by the court the young victim showed by her responses that she knew the difference between telling the truth and telling a lie; that she went to Sunday school and knew about God, who wanted people to tell the truth; and that she would tell the truth in court. “Under these circumstances, we find the requisites of Smith v. State, 247 Ga. 511, 512 [(277 SE2d 53) (1981)] satisfied and that the trial court did not abuse its discretion in finding the victim competent to testify. [Cits.]” West-brook v. State, 186 Ga. App. 493, 494 (1) (368 SE2d 131) (1988). Accord Taylor v. State, 183 Ga. App. 314 (2) (358 SE2d 845) (1987); see also Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987).

2. Appellant enumerates as error six instances when statements of the victim made to other witnesses were admitted over objection into evidence. Appellant contends that because the child was not competent to testify she was not “available to testify” as required by OCGA § 24-3-16, and thus her out-of-court statements were inadmissible. However, our finding that the trial court did not abuse its discretion in ruling the child competent to testify renders this enumeration moot. Sosebee, supra; Westbrook, supra; see also Grier v. State, 257 Ga. 539 (3) (361 SE2d 379) (1987). This enumeration affords no basis for reversal.

Decided September 27, 1988.

James R. McKay, for appellant.

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

3. Appellant further complains of the trial court’s allowing in evidence the testimony of his sister regarding a sexual assault he made against her. This testimony was offered by the State to show appellant’s lustful disposition and attitude towards the female members of his family. As such it was properly admitted. Smith v. State, 182 Ga. App. 740 (1) (356 SE2d 723) (1987).

4. The evidence was sufficient for a rational trier of fact to conclude that the appellant was guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore the trial court did not err in denying appellant’s motion for new trial on the general grounds.

Judgment affirmed.

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


author: Carley, Judge.

text:
    76864.
    CARRANDI et al. v. SANDERS et al.
    (373 SE2d 661)
   Carley, Judge.

An automobile driven by appellant-plaintiff Anita Carrandi and owned by her sister, appellant-plaintiff Alisa Carrandi, collided with a truck driven by appellee-defendant David Sanders and owned by his father, appellee-defendant James Sanders. Appellants, by their mother as next friend, brought suit, alleging that appellee David Sanders’ negligent operation of the truck was the proximate cause of the collision and that appellee James Sanders was vicariously liable for his son’s negligence under the family purpose doctrine.

Appellees answered, denying the material allegations of the complaint. The case proceeded to trial before a jury and a verdict in favor of appellees was returned. The trial court entered judgment for appellees. Appellants bring this appeal from the trial court’s denial of their motion for new trial.

1. Appellants enumerate as error the trial court’s giving of an instruction to the jury on the avoidance doctrine.

A review of the transcript shows the following: Prior to the collision, appellant Anita Carrandi was driving in the proper lane of traffic and at a speed well within the posted speed limit. The collision occurred when appellee David Sanders attempted to cross the highway from an adjacent private driveway. The evidence shows that he drove the truck directly into the path of the on-coming car driven by appellant Anita Carrandi and that she attempted to stop the automobile so as to avoid the collision.

“[T]here are two classifications of negligence as to the plaintiff, contributory and comparative. Contributory negligence is of two separable, distinct defenses ([cits.]): first the plaintiff must at all times use ordinary care for his own safety; that is, he must not by his own negligence (or consent) proximately cause his own injuries; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent.” Whatley v. Henry, 65 Ga. App. 668, 674 (6) (16 SE2d 214) (1941). Thus, the focus of the applicability of the avoidance doctrine in the present case would be upon the acts or omissions of appellant Anita Carrandi subsequent to the alleged negligence of appellee David Sanders in pulling out into the highway from the driveway. To authorize a charge on the avoidance doctrine, there “must have been [evidence of appellant Anita Carrandi’s] failure ‘to avoid the consequences of the active negligence of [appellee David Sanders].’ [Cit.] However, we find no evidence upon which ... a charge [on the avoidance doctrine] could be based. ‘A driver having the right-of-way . . . has the right to assume that others will obey the rule of the road [cit.] and [she] has a right to proceed at a reasonable speed. . . . What [she] cannot do is to test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, [she] cannot blindly and recklessly proceed without regard to conditions and consequences. [Cit.]’ [Cit.]. . . . There is absolutely no evidence showing that [appellant Anita Carrandi] knew or in the exercise of ordinary care should have detected the danger of [appellee David Sanders pulling out in front of her] automobile in time to avoid the collision. [Cit.]. . . . ‘(W)here there is no evidence to show that one party could in fact have discovered and avoided the negligence of the other, [an] instruction (on the plaintiff’s duty to avoid the negligence of the defendant) is inappropriate and should.not be given. [Cit.]’ [Cit.]. . . . There is no ‘absolute duty on any driver to avoid a collision,’ [cit.], and the burden was on [appellees] to prove that [appellee David Sanders’] negligence could have been discovered and avoided by [appellant Anita Carrandi]. [Cit.] This burden was not met.” (Emphasis in original.) Moore v. Price, 158 Ga. App. 566, 569 (2) (281 SE2d 269) (1981).

Our holding that a charge on the avoidance doctrine was not authorized by the evidence in this case and that the trial court’s giving of such a charge constitutes reversible error is not inconsistent with the holding in Stroud v. Woodruff, 183 Ga. App. 628, 629 (2) (359 SE2d 680) (1987). In Stroud, there was evidence that, in the exercise of ordinary care, the defendant’s negligence should have become apparent to the plaintiff in sufficient time for the plaintiff to have avoided its consequences. “[T]here was evidence from which it could be inferred that [the plaintiff] was familiar with the lack of visibility at the intersection yet took no precautionary measures, such as significantly reducing his speed, to allow for such lack of visibility.” Stroud v. Woodruff, supra at 629 (1). There is no such evidence of appellant Anita Carrandi’s prior familarity with any potentially hazardous road conditions which may have existed at the site of the collision at issue here. Accordingly, such prior familarity on the part of appellant Anita Carrandi is not a factor which enters into the determination of whether she exercised ordinary care to discover and avoid the negligence of appellee David Sanders under the then-existing circumstances.

Decided September 27, 1988.

Albert B. Wallace, for appellants.

M. David Merritt, for appellees.

2. Several other portions of the trial court’s charge to the jury are enumerated as error. A review of the record shows that appellants made no objection to these instructions at trial. “When a party fails to object to a jury charge at the time of trial he is precluded from alleging error on appeal as to that ground. [Cits.]” Foster v. Harmon, 145 Ga. App. 413, 416 (5) (243 SE2d 659) (1978).

Judgment reversed.

Deen, P. J., concurs. Sognier, J., concurs in judgment only.


text:
    76905.
    PARROTT v. THE STATE.
    (373 SE2d 828)
   Pope, Judge.

Defendant Lorenzo Perry Parrott was indicted for the offenses of theft by taking and theft by receiving stolen property. The jury returned a verdict of not guilty on the theft by taking count and a verdict of guilty on the theft by receiving stolen property count. On appeal the defendant contends that the trial court erred in failing to grant a directed verdict of acquittal at the close of the State’s case in chief, arguing that the State showed only that defendant was in recent possession of the stolen property (a 1987 Pontiac Firebird) and that the State failed to show that defendant knew or should have known the property was stolen.

The State presented the following evidence at trial: On July 9, 1987, a 1987 Pontiac Firebird was stolen from the lot of the National Car Rental Systems located at Hartsfield International Airport in College Park. In order to get the car out of the lot, the thief placed a board over the tire puncturing spikes called “tiger teeth” which National had installed in order to discourage theft. On the day following the theft, one of National’s investigators discovered the car parked at the Bradford Square Apartments, located not far from where the car was taken. The investigator and another National employee were “staking out” the car in hopes that someone would come to retrieve it when they were approached by an assistant manager of the apartments who informed them that one of his employees, a recently hired maintenance man, had been driving the car. When questioned by the National employees and a Clayton County police officer about his possession of the car, defendant initially stated that the car was his and that he had driven it to the apartment complex. He quickly changed his mind, however, and stated that the car belonged to his brother’s wife who had driven the car there so he could fix a tire for her, but she had left the premises to go elsewhere. Defendant had the keys to the car in his pant’s pocket and several items belonging to him were found in the car. A social security card and insurance card belonging to a Vickey Holcomb were also found in the car. Although the insurance card was issued for a 1987 Pontiac Firebird, the vehicle identification number on the card did not match the stolen vehicle’s identification number. Co-workers of defendant testified they had seen defendant driving the car the day before (i.e., the day it was stolen), that at that time the car had a flat tire, and that defendant stated he was taking the car to a service station to have the tire repaired.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a). “ ‘Possession, as we know it, is the right to exercise power over a corporeal thing. . . .’ Cook v. State, 136 Ga. App. 908 (2) (222 SE2d 656) (1975).” Preston v. State, 183 Ga. App. 20, 21 (1) (357 SE2d 875) (1987). As to the issue of possession, the evidence showed that defendant was driving the car shortly after it was stolen, and again the next day, that defendant had the keys to the car in his pants pocket and that defendant used the car as a repository for a number of his personal items.

Decided September 27, 1988.

Linda S. Cowen, for appellant.

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

Defendant also contends, however, that the State presented no evidence showing he had knowledge that the car was stolen. “While proof of knowledge that the property is stolen is an essential, ‘(t)his guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. (Cits.)’ Whitehead v. State, 169 Ga. App. 518, 519 (313 SE2d 775) (1984).” Todd v. State, 184 Ga. App. 750, 751 (362 SE2d 400) (1987). Here defendant’s contradictory statements concerning his ownership and possession of the car, coupled with the fact that defendant was seen driving the car and repairing a flattened tire on the car shortly after it was stolen, as well as other suspicious circumstances surrounding his possession of the car were sufficient to authorize the jury to infer that defendant knew or should have known that the car was stolen. “Inasmuch as we cannot say that there was no conflict in the evidence and that the evidence demanded a verdict of acquittal, the trial court did not err in denying [defendant’s] motion for directed verdict.” Preston v. State, supra at 21. Accord Todd v. State, supra at (1); Brown v. State, 177 Ga. App. 778 (1) (341 SE2d 226) (1986); Cheek v. State, 170 Ga. App. 230 (1) (316 SE2d 583) (1984).

Judgment affirmed.

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


text:
    76981.
    LYERLY v. PHILLIPS.
    (373 SE2d 663)
   Birdsong, Chief Judge.

Thi Hanh Phillips sued Nancy Lyerly for damages arising out of an auto collision. Lyerly counterclaimed. Each party at trial vigorously asserted that the other’s vehicle had strayed into her lane. The jury awarded plaintiff Phillips $30,000 compensatory damages and $25,000 punitive damages against Nancy Lyerly, who was awarded nothing on her counterclaim. Lyerly asserts five errors. Held:

1. We reverse this verdict for the admission of certain hearsay, non-probative testimony implying or raising a question of criminal activity by Lyerly in obtaining prescription drugs illegally.

An alcohol blood test showed that two hours after the collision Lyerly’s blood contained .10 grams percent alcohol. She testified she had earlier had one drink but that her driving ability was not impaired, and that the collision occurred when Phillips turned too widely out of a side road into Lyerly’s lane.

At the time of this accident, August 2, 1986, Lyerly was wearing a back brace for injuries received in a January 1986 accident. She testified she suffered from a fractured vertebrae and arthritis as a result of that January accident, and had been prescribed Feldene for arthritis and Valium and Talwin for pain and inability to rest, but she testified she had that day taken no other drug than Feldene, in the morning.

There was no evidence of any drug content in Lyerly’s body (except alcohol), nor does it appear she was tested for any. Neither the trooper nor the emergency room nurse who treated her and drew the blood for alcohol testing, nor anyone else, gave any evidence whatever that Lyerly appeared to be under the influence of any drug, other than the alcohol which was apparently evident only by smell. As to his observations of Lyerly’s “actions,” the trooper testified, “She was, I guess, in pain. She was disturbed. Just, I guess, more-or-less, you know, from the accident.”

The trooper first to arrive at the scene testified Ms. Lyerly’s car had run off the road and was turned over in a creek. He said he looked in her car and saw “several different bottles of medication”; he did not remember exactly how many.

At trial the plaintiff introduced as a witness a pharmacist who had started work at Scotty’s Drugs in Royston after this accident. Plaintiff’s counsel asked this pharmacist: “[D]id Bill Avant from the DEA [Drug Enforcement Agency] come to your drug store and confiscate some records?” The pharmacist said yes and identified the document just given to him as the receipt of drug records confiscated, which was given to him by the DEA agent. The pharmacist testified that (along with, apparently indiscriminately, the names and “drug records” of many other customers of Scotty’s Drugs), this receipt listed “the prescription records for the Defendant, Nancy Lyerly.”

Lyerly’s attorney objected to the use of this document and cross-examined the pharmacist in an attempt to discover what it was about. The pharmacist admitted the DEA had “confiscated a whole bunch of records . . . they got everybody’s records”; and that he had no knowledge of any of the prescriptions listed for Nancy Lyerly ever being improperly filled by himself or any other pharmacists at Scotty’s. The trial court refused to admit the DEA agent’s receipt but nevertheless full discussion of it was made in the jury’s presence.

Plaintiff Phillips offered the receipt as a “business records” exception to the hearsay rule. See OCGA § 24-3-14. Lyerly questioned the probative value and relevancy of the receipt; and argued it was hearsay because the pharmacist did not prepare it and had no personal knowledge of the facts it purported to represent, and that this receipt prepared by a DEA agent of documents he allegedly confiscated in the course of an investigation concerning improperly filled prescriptions, was not a record prepared in the normal course of the pharmacy’s business.

Plaintiff’s attorney then elicited a recitation by the pharmacist from the DEA agent’s receipt that prescriptions for 36 five-milligrams of Valium and Talwin had been dispensed for Lyerly. Lyerly’s attorney objected repeatedly “to this line of questioning” as hearsay.

At a bench conference, the court inquired of Phillips’ attorney: “What is the purpose of that paper [the receipt]?” Phillips’ attorney merely responded he had alleged in his lawsuit and pre-trial order that Lyerly was under the influence of alcohol “and/or drugs,” and that the pharmacist could not testify from his own knowledge because he did not work at Scotty’s until after this collision, and he could not testify from his records because he had none, they having been confiscated by the DEA. The trial court stated it would allow the pharmacist to testify whether “their business records show, within a reasonable time of this incident, prescriptions”; the pharmacist could “refresh his memory” from the receipt left by the DEA agent, but was not allowed to tell the jury that it was based on the receipt.

The bench conference ended and trial resumed. Phillips’ attorney asked the pharmacist, “referring to the business record you have in front of you, can you tell the jury whether there were any prescriptions?” Lyerly objected to this reference to a “business record”; seemingly the trial court agreed, but ruled the pharmacist could testify from “[t]he record in his hand.” Lyerly’s attorney objected to that record as a hearsay document. This objection was overruled and the pharmacist testified, from the “refreshing” paper in his hand, that Valium was dispensed in 1986 on eight occasions from February through June. He was “assuming” 36 tablets were dispensed with each refill, although “[t]he DEA didn’t list next to the date exactly how many were dispensed on each refill.” Lyerly objected “to assumption.”

Ultimately, the trial court refused to admit the copy of the DEA’s receipt for drug records confiscated.

This line of questioning concerning a receipt for records confiscated by the DEA and appellant’s name being on a list of persons’ records seized by law enforcement authorities for suspicion of obtaining prescription drugs illegally, was error. It was prejudicially harmful, and therefore requires reversal of the verdict. This error was not mitigated or eclipsed by the ultimate disallowance in physical evidence of the DEA agent’s receipt for documents confiscated, for any line of questioning concerning the contents of the document was hearsay, non-probative, and prejudicial.

What the plaintiff’s attorney was attempting to prove by having the pharmacist testify from the DEA agent’s receipt of drug records confiscated is not clear. If he sought to prove Lyerly had been prescribed and dispensed some medication two months before this collision, such fact alone does not tend to prove she was under the influence of them at the time of the collision. Even if it did, it was proved only by hearsay. The pharmacist testified that he had no knowledge at all, from any source, that any doctors listed had improperly written prescriptions; nor did he have knowledge that Nancy Lyerly abused the prescriptions in any way. The pharmacist could not testify from the hearsay document that Lyerly had been dispensed certain medication and he had no “memory” to be refreshed by it, because he was not there when the drugs were prescribed. He could only testify to what another person (the agent) said was in a record confiscated, a person who was not available for cross-examination. The DEA receipt was not a record prepared in the ordinary course of business of Scotty’s Drugs; it was not something the pharmacist did, or knew was done, in a given transaction in accordance with the habits of the business. Green v. State, 165 Ga. App. 702 (302 SE2d 604). Preparing a receipt for drugs confiscated might be testified to by the DEA agent as routine in the course of the agent’s business (see Reed v. Heffernan, 171 Ga. App. 83 (318 SE2d 700)); but it is no part of the pharmacist’s normal business. As to the requirement of foundation for proof of business records as an exception to hearsay rules, see Harris v. Collins, 149 Ga. App. 638, 639-640 (255 SE2d 107).

Moreover, the pharmacist had no familarity with the receipt except as it was given to him. He could not even testify the receipt accurately reflected the records seized. It was someone else’s record. He could not determine from it what doctor prescribed what medications, or how many pills were dispensed with each of Lyerly’s refills. Thus the information was not merely hearsay; it was incomplete and therefore misleading as to fact.

But assuming everything to which the pharmacist testified from the drug agent’s receipt was true, it still proved nothing concerning the event of collision. Its only value was prejudice, by raising the odor of criminality. Since the jury returned a large punitive damage award in addition to finding liability, the prejudicial error cannot be said to be harmless.

The trial court advised the jury to “disabuse your mind [from the pharmacist’s assumption that 36 tablets were included with each refill] and don’t consider it ... in the least”; but this expressly refers only to a single factual assumption made by the pharmacist from the agent’s “receipt,” and not to the negative implications of the testimony generally. Another time, the court reminded the jury there was a discussion between the court and the attorneys “concerning a document. That colloquy is not evidence, you will not consider it as evidence and don’t consider [it] in any way in your decision in this case.” But in this the court referred only to the attorney’s discussion concerning “a document,” and not the evidentiary implications suggested by it; and while advising the jury not to consider the colloquy about the document, the trial court admitted the pharmacist’s testimony from the document. (Emphasis supplied.)

Decided September 27, 1988.

Richard B. Eason, for appellant.

James E. Cornwell, Jr., Andrew J. Hill III, for appellee.

The actual errors, which were the non-probative, hearsay, prejudicial implications arising from the verbal testimony of the pharmacist, were not in fact or by attempt removed from the jury’s purview.

Although the trial court admittedly had serious trouble with this “document,” it was the testimony about the document, the non-probative, hearsay testimony implying Lyerly was at the time of the collision under the influence of certain drugs, which was prejudicial error.

Moreover, the evidence implied that Lyerly had engaged in criminal activity in unlawfully obtaining drugs some two months before this collision, and this particular prejudice was completely uncured.

Certainly a judge may remove error by giving pertinent curative instructions, but it is foolhardy to suggest that every prejudicial error is cured by any curative instruction of some sort, for this would be to invite error. Clearly an error can be so prejudicial in nature that it cannot be cured; in spite of anything which may be said by the judges, some evidence will be so inherently harmful that the jury will draw conclusions from it. See Newton Bros. v. Shank, 240 Ga. 471, 472 (241 SE2d 231).

This testimony that the DEA had confiscated the defendant’s drug records from the pharmacy raised the taint of criminality in addition to the attempt by pure speculation to prove that since the trooper saw pill bottles in her car, defendant was under the influence of drugs at the time of the collision. It cannot be said that the hearsay testimony in this case probably did not contribute to the verdict. The legitimate evidence of liability was disputed and did not demand a verdict for the plaintiff. For this reason the verdict is reversed.

2. Appellant’s remaining enumerations of error are without merit.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    77097.
    McKenzie v. The State.
    (373 SE2d 830)
   Birdsong, Chief Judge.

Richard A. McKenzie was indicted for murder but convicted of involuntary manslaughter. The court entered judgment upon the jury verdict and then denied appellant’s motion for new trial. McKenzie brings this appeal.

Several workers from a carnival were at Ruby’s Pub in Sumter County, Georgia, during the evening of October 5-6, 1987. Harry “Buddy” Cousert was playing pool with appellant in which a few dollars were wagered. Cousert won a few games and appellant decided to stop. Cousert tried to get McKenzie to continue, and a shouting match erupted. Cousert then started playing pool with Dalton Sanders. A disagreement arose between them and a shoving match ensured. Johnny Riley, another carnival worker, escorted Cousert and Sanders outside and the men started fighting in the middle of U. S. Highway 19. They rolled into the ditch. Sanders admitted he was beaten and was left lying in the ditch. Cousert left the area with his girl friend, Kimberly McAllister, and they walked in the direction of their motel. McAllister testified that McKenzie came upon them from behind and knocked Cousert to the ground and beat Cousert with his hands and his feet. She tried to stop the fight but was unsuccessful. She said she ran across the street to a telephone where she called the police and an ambulance.

Ruby Blaine, one of the owners of Ruby’s Pub, saw the arguments which involved appellant and Cousert, and the appellant and Sanders, and Riley escorting the participants outside the bar. She closed the bar and drove away in her pickup truck, but remembered that she had parked a friend’s truck behind the bar and returned to the bar to check on the other truck. When she arrived in front of the bar, she saw Riley who told her his car would not start and requested she take him to get a “jumper” cable. She agreed and Sanders and his girl friend got in the front of the truck, and Riley and appellant got into the back of the truck. She drove all of them to their motel and left them.

A couple of police cars and an ambulance arrived at the scene of the fight and Cousert was taken to the emergency room of the local hospital where his worst cut was sutured, he was x-rayed and admitted for observation. When Cousert was lifted from the emergency room gurney to a bed, he had cardiac arrest. The doctors were unable to revive him. An autopsy showed the cause of death was the result of internal bleeding from a ruptured spleen, which was “pretty much torn in half.” The emergency room doctor was of the opinion that the victim “died as a result of a severe beating.”

Appellant testified that when he left the bar he could find none of his friends and walked across the street where he encountered the victim and his girl friend. He said he asked Cousert where Sanders and Riley were and Cousert told him he had left Sanders “ ‘down the road in a ditch f. . . up and now I’m going to f. . . you up.’ ” McKenzie insisted that Cousert started the fight and that after each exchange of blows that McKenzie attempted to stop the fight but Cousert refused to stop. McKenzie testified that he was hurt and on the ground and kicked Cousert to protect himself. He said he was exhausted and had gone back to Ruby’s and “got in the truck” and went to the motel with his friends. He told his friends that he had been in a fight but “didn’t know who it was at the time.”

Judgment was entered upon the jury verdict and when appellant’s motion for new trial was denied he filed this appeal. Held:

1. The appellant contends the trial court erred in refusing to permit the jury to view the scene of the fight. Counsel argues that McAllister was the only eyewitness other than appellant and she had testified that she had seen appellant “beating” the victim from where she was using the telephone at a nearby Shell service station, and then had seen appellant get into a truck “at the ‘bar.’ ” Appellant argues that “it would be impossible for McAllister to have seen the fight between Appellant and the alleged victim or [to see] the Appellant enter an automobile located at Ruby’s Pub (the bar) while standing at the telephone. . . The transcript does not show with certainty where Ruby stopped her pickup truck when she returned to her bar. But Ruby, Riley, and McAllister testified that McKenzie got into the back of the pickup truck at the bar. A third witness who worked in that area saw the figure of a person standing over the victim’s body, later identified as Cousert, and she saw that person cross the street and get into a pickup truck. There is no testimony that McKenzie was seen getting into “an automobile located at Ruby’s Pub. . . .” Furthermore, McKenzie testified that he fought with Cousert and then entered the pickup truck and rode back to his motel with Ruby. Additionally, both the prosecution and the defense introduced photographs of the area involved.

The decision whether to permit the jury to view the scene of a crime is a matter entirely within the discretion of the trial court. Sutton v. State, 237 Ga. 418 (3) (228 SE2d 815); Lackey v. State, 217 Ga. 345 (2) (122 SE2d 115). We find no abuse of discretion, particularly in this instance when each side has introduced photographs depicting portions of the area they desired shown. Self v. State, 182 Ga. App. 656 (356 SE2d 722).

2. Counsel for appellant moved for a change of venue following voir dire. The voir dire was not transcribed, but counsel directed the court’s attention to the fact that “twenty seven (27) of the jury panel stated that they had prior knowledge of the case and they had read about it in the newspaper.” The State argued that none of the jurors was disqualified “because of any prior knowledge or publicity in the case. Each and every one who said they’d heard it, said they could put that aside” and the State urged the court to deny the motion. The trial court denied appellant’s motion and on appeal appellant requests a new trial “in which a fair and impartial jury could be impaneled.”

Voir dire was not recorded nor does the transcript show that any objection was made, as is required for a transcript if objection is made. State v. Graham, 246 Ga. 341, 343 (271 SE2d 627). “ ‘To raise an issue as to error in the conducting of the voir dire, objection must be made in the trial court to preserve the issue for appeal.’ ” Conley v. State, 157 Ga. App. 166, 167 (276 SE2d 677). However, appellant argues that the error is in the denial of the motion for a change of venue.

“ ‘Traditionally, a defendant seeking a change of venue on the basis that the setting of the trial is inherently prejudicial relies heavily if not primarily or exclusively on news media reports. . . . However, widespread or even adverse publicity is not in itself grounds for a change of venue. . . .’

“This court has held that ‘[t]he test as to whether newspaper publicity has so prejudiced a case that an accused cannot receive a fair trial is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence of the accused from reading such newspaper articles.’ [Cit.] ‘The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of that discretion.’ ” Chancey v. State, 256 Ga. 415, 429-430 (349 SE2d 717). The only method an appellate court can utilize to determine if the trial court abused its discretion in denying a motion for a change of venue, is to review the transcript. Here, there is no transcript and counsel has not availed himself of permissible alternative methods of supplementing the record. O’Neal v. State, 168 Ga. App. 869 (310 SE2d 751). Of course, the transcribing of the voir dire in a non-capital felony case is not mandatory. Zachary v. State, 245 Ga. 2, 3 (262 SE2d 779). Where the transcript does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed for a party must support his claim of error in the record. Walker v. State, 153 Ga. App. 831 (266 SE2d 580). Where this is not done, there is nothing for an appellate court to review. Hughes v. State, 257 Ga. 200, 203 (357 SE2d 80); McKenney v. State, 163 Ga. App. 545 (1) (295 SE2d 217). This enumeration is without merit.

3. We find no error in the admission in evidence of a photograph of the deceased, which was used by a medical witness to illustrate the extent of injury to the face of the victim. Brown v. State, 250 Ga. 862 (5) (302 SE2d 347). Photographs which are material and relevant to illustrate or explain an issue are not excludable, even though it may be possible that it could inflame the jury. Richards v. State, 251 Ga. 447 (2) (306 SE2d 302).

Decided September 27, 1988.

John V. Harper, for appellant.

John R. Parks, District Attorney, for appellee.

4. Error is asserted in the ruling of the trial court in permitting a leading question by the State of one of its witnesses, over objection of appellant’s counsel. On re-direct examination, the prosecutor asked McAllister if she had tried to get between the victim and the appellant prior to the fight. She said that she had and was asked: “What did [the appellant] do? Just go right over you?” Objection was made on the basis that it was a leading question. The trial court overruled on the basis that the question had already been asked and answered.

A review of the transcript shows that appellant’s counsel brought the same subject up earlier and similar questions had been asked and answered several times. “ ‘A judge is given latitude and discretion in permitting leading questions, and unless there has been an abuse thereof, resulting in prejudice and injury, there is no reversible error.’ ” English v. State, 234 Ga. 602 (2) (216 SE2d 851). Because a similar question had been asked and answered, we find no prejudice, no abuse of discretion, and no reversible error.

5. Appellant alleges error in the refusal of the trial court to give his requested charge on self-defense. The court charged the jury fully and correctly on self-defense. A failure to give a requested charge in the exact language stated is not grounds for reversal where the charge given substantially covers the same principle. Kelly v. State, 241 Ga. 190 (4) (243 SE2d 857).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76398.
    SMITH v. THE STATE.
    (373 SE2d 800)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of driving under the influence and failing to stop at the scene of an accident. This appeal followed. Held:

1. Defendant contends the trial court erred in denying his motion to suppress evidence. In this regard, he argues that he was arrested without a warrant illegally and that evidence obtained following his arrest was tainted and inadmissible.

These facts were adduced at the motion to suppress hearing: On March 15, 1986, at 1:30 a.m., the Swainsboro police were summoned to investigate a hit and run accident which occurred in the parking lot of a bar. Within a few minutes, Officer Swafford arrived at the scene. A witness told the officer that he saw defendant leave the bar, get into his automobile, back it into another vehicle and leave without stopping. Inspecting the vehicle which remained in the parking lot, Officer Swafford observed that it was damaged on the right side. In the officer’s words, “the passenger door was caved in.”

The witness identified defendant as “Mr. Smith that lives out Smith’s Trailer Park.” He informed the officer that defendant was driving a yellow Buick Skylark and that he was heading toward the trailer park when he left. That “kind of rang a bell” with Officer Swafford.

Soon another officer, Corporal Washington, joined Officer Swafford at the parking lot. Together, they proceeded to Smith’s Trailer Park where they spotted a yellow Skylark. They noticed that the rear bumper of the Skylark was damaged. Officer Swafford approached the car and placed her hand on the hood — it was warm. Upon close inspection, the officer found paint on the bumper. The paint matched the color of the vehicle which Officer Swafford examined in the parking lot of the bar.

The Skylark was parked in a driveway near a trailer. (Defendant did not live in the trailer but his cousin did. He lived in another trailer.) The officers went up to the trailer and knocked on the door. Defendant’s cousin answered and the police asked for “Mr. Smith.” Defendant came to the door and the police asked him to step outside. Defendant came out on the porch. “He was staggering, his speech was extremely slurred, he was cursing, he was belligerent.”

The police asked to see defendant’s driver’s license. Using profanity, defendant replied that he did not have to show them his driver’s license. Continuing in a profane vein, defendant refused to talk with the police. At that point, defendant was arrested and placed in a patrol car. The time was 1:55 a.m.

Defendant was taken to jail. There, he was advised of his implied consent rights. He refused to submit to a blood alcohol test.

“The state has the burden of proving the lawfulness of appellant’s warrantless arrest. Adams v. State, 153 Ga. App. 41 (264 SE2d 532) (1980).” Bodiford v. State, 169 Ga. App. 760 (315 SE2d 274). To determine whether the State has carried its burden, we must look to federal law. “An arrest and search, legal under federal law, are legal under state law.” Durden v. State, 250 Ga. 325, 326 (1), 327 (297 SE2d 237). Accord State v. Wilson, 179 Ga. App. 334, 336 (346 SE2d 111).

Decided September 15, 1988

Rehearing denied September 28, 1988.

Robert J. Duffy, Dwight T. Feemster, for appellant.

John R. Thompson, Solicitor, for appellee.

“[A]n arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.” Durden v. State, 250 Ga. 325, 326 (1), supra. We think the facts and circumstances within the knowledge of Officers Swafford and Washington were sufficient to establish probable cause for defendant’s arrest. The totality of the circumstances would have led a prudent man to believe that defendant committed the offense of driving under the influence and the offense of failing to stop at the scene of an accident. Waits v. State, 172 Ga. App. 524 (1) (323 SE2d 624); State v. Greene, 178 Ga. App. 875 (1) (344 SE2d 771).

Since the officers had probable cause to believe that defendant committed the offense of driving under the influence and the offense of failing to stop at the scene of an accident, his arrest, outside his home, was constitutionally permissible. Mincey v. State, 251 Ga. 255, 261 (304 SE2d 882). Compare Welsh v. Wisconsin, 466 U. S. 740 (104 SC 2091, 80 LE2d 732). Accordingly, the trial court did not err in denying defendant’s motion to suppress evidence obtained following his arrest.

2. At the close of the State’s case, defendant’s attorney moved for a mistrial on the ground that defendant was not given a Miranda [Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)] warning at the time of his arrest. The motion was overruled by the trial court and defendant assigns error upon the trial court’s ruling. This assignment of error is not meritorious. See White v. State, 146 Ga. App. 620, 621 (3) (247 SE2d 203).

Judgment affirmed.

Pope and Benham, JJ., concur.