text:
    74940.
    DAVIS v. STOVER.
    (362 SE2d 97)
   Carley, Judge.

Until his death, the husband of appellee-plaintiff was employed at a Ford Motor Company assembly plant. On two consecutive days, he experienced chest pains while at work and sought medical assistance from appellant-defendant, the plant physician at the Ford facility. Appellant’s diagnosis was of a respiratory problem and, pursuant to that diagnosis, he prescribed a drug. On the second day, appellee’s husband suffered a heart attack and died before he could be transferred to a hospital. Appellee was awarded workers’ compensation benefits for the death of her husband. Thereafter, appellee filed this medical malpractice action against appellant, alleging that appellant had misdiagnosed her husband and had afforded him negligent treatment for his heart condition. Included among the defenses raised in appellant’s answer was his assertion that, since he was also an employee of the Ford assembly plant, he was afforded immunity from any tort liability for his alleged malpractice in treating appellee’s husband. See OCGA § 34-9-11. Subsequently, appellant moved for summary judgment based solely upon his “co-employee” defense. The trial court denied appellant’s motion for summary judgment but certified its order for immediate review. Appellant’s application for an interlocutory appeal to this court was granted in order that we might address the applicability of the “co-employee” defense in the context of a medical malpractice action brought by a company employee against a company physician.

OCGA § 34-9-11 provides, in pertinent part, that the workers’ compensation rights and remedies of an employee “shall exclude all other rights and remedies of such employee, . . . provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer. . . .” (Emphasis supplied.) This statute makes no explicit provision for any exception to the doctrine of “co-employee” tort immunity that it creates. However, our Supreme Court has recently held that the “co-employee” defense would not be available to a company physician. See Downey v. Bexley, 253 Ga. 125 (317 SE2d 523) (1984). The Bexley decision is factually distinguishable from the case at bar. In Bexley, not only were there allegations of the company physician’s malpractice, there were also allegations of his fraud and deceit. No such additional allegations of fraud and deceit have been made against appellant. Appellant urges that this factual difference renders Bexley inapplicable legal authority in this case. Accordingly, the issue for resolution is whether the Bexley decision stands for a broad or a narrow proposition. Under the broad construction of Bexley advanced by appellee and accepted by the trial court, a company physician who is sued in his professional capacity by an employee of the company may never avail himself of the tort immunity of OCGA § 34-9-11. Under the narrow construction of Bexley advanced by appellant, a company physician is barred from claiming the statutory immunity only if it is alleged that he engaged in fraudulent or deceitful conduct in connection with his treatment of a company employee.

Nothing in the Bexley decision would necessarily indicate that its holding was premised upon the specific acts of professional misconduct that had been alleged against the company physician. To the contrary, it would appear that the focus in Bexley was merely upon the defendant’s general status as a company physician against whom a tortious breach of professional conduct had been alleged. “[W]e hold that where a professional co-employee is charged with fraud, deceit, and violation of professional trust, he may be held liable in tort for his wrongdoing to an injured co-employee. We reach this result not because of any provision of our Workers’ Compensation Act, but because of the unique duty owed others by professional persons like [a company physician]. ‘The primary distinction [between a professional service and a purely commercial enterprise] is that a profession is a calling which demands adherence to the public interest as the foremost obligation of the practitioner.’ [Cit.]. . . . [W]e think that here [the company physician] should not be allowed to avoid liability for alleged fraud, deceit, and abuse of professional trust merely by invoking the ‘co-employee’ doctrine of workers’ compensation law. A professional person is liable for an abuse of the trust reposed in him by the public, provisions of the compensation act notwithstanding. Cases [which have applied the tort immunity of OCGA § 34-9-11] are inapposite, in that they did not involve a breach of professional responsibility as is alleged ... in this case.” Downey v. Bexley, supra at 125-126. In Bexley, the Supreme Court analogized its holding that the company physician could not claim the co-employee tort immunity of OCGA § 34-9-11 to its holding in First Bank & Trust Co. v. Zagoria, 250 Ga. 844 (302 SE2d 674) (1983). In Zagoria, the Supreme Court held that a professional corporation which had been organized for the practice of law would not shield a co-shareholder thereof from individual liability for the alleged wrongful professional acts or omissions attributed to another co-shareholder. The Supreme Court did not purport to limit its holding in Zagoria to cases wherein the corporate veil was being raised as a defense to liability for alleged fraudulent or deceitful acts of professional misconduct. “It is inappropriate for the lawyer to be able to play hide-and-seek in the shadows and folds of the corporate veil and thus escape the responsibilities of professionalism.” First Bank & Trust Co. v. Zagoria, supra at 846.'Thus, any analogy between the Zagoria and the Bexley decisions would be with reference to the general viability of a professional’s claim of immunity from liability in tort for any alleged breach of professional conduct. In Bexley, the alleged professional misconduct happened to include allegations of fraud and deceit. However, those allegations were not crucial to the ultimate holding in Bexley that a company doctor, sued in a professional capacity by a company employee, would not be entitled to claim the benefit of the tort immunity created by OCGA § 34-9-11.

Accordingly, to adopt the narrow interpretation of Bexley that is advanced by appellant would give to a factual distinction a legal effect which is neither explicitly nor implicitly supported by existing authority. Professional misconduct need not be fraudulent or deceitful to be actionable in tort. Therefore, we hold that Bexley is subject to but one construction, to wit: Notwithstanding the provisions of OCGA § 34-9-11, a company physician who is sued for any alleged tortious breach of conduct applicable to his profession generally is not entitled to claim the defense of tort immunity, even as against a company employee. In this case, appellant and appellee’s husband had Ford as a common employer. However, appellant was specifically employed as a physician for Ford’s employees and it was in his capacity as a physician that appellant’s professional services were sought by appellee’s husband. Such control, if any, as Ford may have exercised over appellant’s manner and method of providing medical services to Ford’s employees may be a factor to be considered in determining whether appellant was negligent with regard to the professional services that he did or did not afford to appellee’s husband. However, the mere existence of such control by Ford is not a factor which, under OCGA § 34-9-11, will provide appellant with absolute immunity from any possible tort liability for the alleged negligent medical treatment that he afforded appellee’s husband. The trial court did not err in denying appellant’s motion for summary judgment based solely upon the provisions of OCGA § 34-9-11.

Decided October 2, 1987

Rehearing denied October 19, 1987

Robert G. Tanner, Mark E. Bergeson, for appellant.

James C. Simmons, Jr., A. Leroy Toliver, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    75019.
    LEWIS v. DUGGAN.
    (362 SE2d 73)
   Birdsong, Chief Judge.

Appellant Jeffrey Y. Lewis appeals from the grant of summary judgment to appellee Marian Duggan. Appellant has included within the record only specified portions of the evidence which he contends support his claim that the trial court erred in finding there was no genuine issue of any material fact and granting summary judgment to appellee. We are without any evidence submitted by the appellee, and appellant also declined to forward a transcript. As best can be determined, on May 21, 1985, appellant Lewis was proceeding southward on Mt. Paran Road on his bicycle when he approached the 1-75 underpass. The time is alleged to have been 8:15 p.m. There is no evidence as to darkness, or lights in the area, or on what portion of the road appellant was traveling. Duggan apparently had exited from 1-75 for she was at the intersection with Mt. Paran, probably coming from the left, because the complaint alleged Duggan accelerated her car rapidly into Lewis’ lane of trafile and forced him over the curb where he sustained injuries to his person and his property. Lewis brings this appeal from the grant of summary judgment to Duggan. Held:

1. Appellant contends the trial court erred in finding there was no issue of fact regarding “intentional misconduct” by appellee, and that there was no indication of any “wrongdoing” other than ordinary negligence. Counsel argues that appellee’s conduct evinces a “conscious indifference to consequences” and is intentional misconduct. See Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818). The critical word in this claim is “conscious.” The only evidence in the record showing appellee’s version of this incident is appellant’s affidavit in which appellee told him she did not see him because he must have been in her blind spot, and had driven into his lane to get out of the way of an oncoming motorcycle, but only touched her accelerator to keep her car from stalling. She denied that her car sped forward rapidly, but did admit her car always stalled.

The act of appellee in failing to see appellant shows only a failure to keep a proper lookout. Such failure shows negligence, not intentional conduct. Thompson v. Walker, 162 Ga. App. 292, 293 (290 SE2d 490); Hill v. Copeland, 148 Ga. App. 232, 234 (250 SE2d 822); Walls v. Parker, 146 Ga. App. 882, 883 (247 SE2d 556); Meatows v. Oxford, 124 Ga. App. 778 (1) (186 SE2d 343).

Counsel also argues that all Duggan had to do was turn the wheel of her car to the left to avoid the threat of collision, and her failure to do so “amounted to ‘a wantonness equivalent in spirit to actual intent.’ ” Carr v. Woodside Storage Co., 217 Ga. 438, 444 (123 SE2d 261). In Carr the plaintiff had requested the trial court to charge the jury its contention that the defendant “committed wilful and wanton negligence through driving the defendant’s truck at a fast and illegal rate of speed while intoxicated, and through failing to keep a proper lookout ahead, and through failing to reduce speed on the approach to an intersection, and through failure to apply the brakes in time to avoid colliding with the automobile driven by her son.” Id. at 439. We find these combined acts of negligence are too disproportionate to the simple act here of failing to keep a proper lookout and thereby driving up close to appellant’s bicycle, to be controlling authority. The Supreme Court, in Carr, stated: “The court, in charging the jury upon the subject, should make it plain that it is never applicable unless the defendant’s conduct was such as to evince a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding . . . equivalent in spirit to actual intent.” Id. at 440. We agree with the trial court in its finding that in the circumstances “actual intent” is absent in the case at bar.

A case which is similar is Palmer v. Stevens, 115 Ga. App. 398 (3) (154 SE2d 803), in which the defendant was charged with “failing to steer said vehicle to the left and thereby avoid striking” the plaintiff. There the court discussed the “last clear chance” doctrine and held that “it is only where the defendant knows of the other person’s perilous situation and realizes or has reason to realize the other’s helpless condition, that defendant is charged with a duty of using with reasonable care and competence his then existing ability to avoid harming the other person.” (Emphasis deleted.) We do not here hold that the last clear chance doctrine was applicable in this incident, but we concur in the reasoning there employed, that the alleged tortfeasor cannot steer his vehicle so as to avoid the victim until he is aware of his presence. And, in the instant case, appellant’s evidence showed appellee was unaware of appellant’s presence until it was too late to avoid the near collision.

“ ‘It is generally a question for a fact-finding body to determine questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the negligent conduct alleged is susceptible of but one inference that it becomes a question of law for the court to determine.’ ” Thompson, supra at 293; accord Trotter v. Peet, 135 Ga. App. 580, 581 (218 SE2d 295). The evidence of record is susceptible of but one inference as to whether appellee’s actions were wilful, wanton, or exhibited a conscious indifference to consequences so as to amount to intentional misconduct. See Truelove v. Wilson, 159 Ga. App. 906, 908 (285 SE2d 556). We conclude, in agreement with the trial court, there was no evidence of intentional misconduct or conscious disregard for the safety of others on the road. It follows the trial court did not err in refusing to find appellee’s actions constituted intentional misconduct.

2. Appellant enumerates as error the trial court’s grant of summary judgment to appellee. We find no error. Appellant and appellee are both subject to the Georgia Motor Vehicle Accident Reparations Act, otherwise known as “no-fault” insurance. OCGA § 33-34-1 et seq. Appellee was the driver of an insured vehicle and appellant was a “pedestrian,” as defined by OCGA § 33-34-2 (11); see Partridge v. Southeastern Fidelity Ins. Co., 172 Ga. App. 466, 467 (323 SE2d 676).

The objectives of our “no-fault” Act include the elimination of wasteful litigation on moderate and small claims, and provisions for minimal insurance coverage for automobile accident victims. Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479, 482 (241 SE2d 238). Georgia’s “no-fault” law follows the statutory scheme of reparation without regard to fault “because of accidental bodily injury” arising from ownership, operation, maintenance, or use of an insured vehicle, unless the injury is a “serious injury” as defined in OCGA § 33-34-2 (13). Appellant contends (a) he incurred a serious injury, and (b) this code section is inapplicable because this was not an “accidental bodily injury.”

Decided September 25, 1987

Rehearing denied October 19, 1987.

Karsten Bicknese, for appellant.

V. Jane Reed, Walter B. McClelland, Arthur L. Myers, Jr., for appellee.

(a) “Serious injury” is defined as bodily injury resulting in death, a fractured bone, permanent disfigurement, dismemberment, permanent loss of a bodily function, permanent partial or total loss of sight or hearing, or injury resulting in reasonably incurred medical expenses exceeding $500, or injury resulting in disability for not less than ten consecutive days. OCGA § 33-34-2 (13). From the record before us, the only claim for “serious injury” was “permanent disfigurement.” The record does not show any evidence of the other elements or the amount of medical expenses. The trial court found that Lewis did not incur medical expenses exceeding $500, as shown by his deposition, and the photographs submitted to the court did not show “permanent disfigurement.” Neither the photographs nor the depositions are included in the record and we must assume, as a matter of law, that the evidence before the trial court was sufficient to support the result reached. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); see also Mills v. City of Atlanta, 175 Ga. App. 8 (332 SE2d 319) as to scars. On appeal, the burden is on the appellant to show error by the record. Appellee’s motion for summary judgment is not in the record, and there is no indication whether a hearing was held or if it was transcribed. We have no indication what evidence appellee presented, and whether it pierced appellant’s pleadings, or established her entitlement to judgment. We find that the evidence of record does not establish any issue of material fact which would prevent a grant of summary judgment for appellee.

(b) The present claim for non-economic damages under OCGA § 33-34-9 applies only to “accidental bodily injury,” and appellant’s claim that this exclusion would not apply to him because the injury was intentional was decided adversely to him in Division 1 above. See OCGA § 33-34-2 (1) for a definition of “accidental bodily injury.” We find appellant incurred accidental bodily injuries which did not exceed $500 in medical expenses, or amount to permanent disfigurement. The trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    75108.
    FITZGERALD v. CAPLAN et al.
    (362 SE2d 103)
   Banke, Presiding Judge.

This is an appeal by the plaintiff from a grant of summary judgment to the defendants in an action to recover for alleged medical malpractice and intentional infliction of emotional distress.

The evidence, construed most favorably towards the plaintiff as respondent on motion for summary judgment, may be summarized as follows. Defendant Gerald E. Caplan, M.D., acting as a member and agent of defendant Radiology Associates, P.A., performed a series of radiological tests on the plaintiff for the purpose of investigating the cause of abdominal pains that she was experiencing. The tests were performed at the request of another physician who was responsible for the actual treatment of the plaintiff and who is not a party to this litigation. One of the possible diagnoses being investigated was cancer.

The procedures performed by Dr. Caplan revealed that a portion of the plaintiff’s pancreas was abnormally enlarged, confirming the possibility of cancer but warranting no definite diagnosis in this regard. In his report to the plaintiffs treating physician, Dr. Caplan wrote: “Close follow-up evaluation of the uncinate of the head of the pancreas is recommended although hopefully the change seen is not a manifestation of a neoplasm.” In preparing an insurance claim form for submission to the plaintiff’s medical insurance carrier, however, Dr. Caplan inserted or caused to be inserted in the space designated, “Diagnosis of nature of illness or injury,” the following language: “157.9 Pancreas: Determine Extent of Malignancy.” Dr. Caplan chose this language in an effort to fit the plaintiffs insurance claim into one of the pre-ordained diagnostic categories considered compensable by her insurance carrier, and thereby to minimize the possibility that the claim would be rejected.

A copy of the insurance claim form subsequently came into the hands of the plaintiff, who, upon reading it, was led to believe that she had been diagnosed as having cancer. She immediately telephoned Dr. Caplan’s office to verify this and was assured by his staff that the language in question had been used solely to expedite payment of her insurance claim. She was additionally informed that only her treating physician was in a position to discuss her final diagnosis with her. The plaintiff did in fact discuss the results of her radio-graphic tests with her treating physician and was assured by him that she did not have cancer; however, the fear and concern which she had experienced upon reading the insurance form nevertheless did not abate.

The plaintiff does not argue in this appeal that Dr. Caplan’s conduct constituted medical malpractice; however, she does urge in her brief that he may be held liable in tort for intentional infliction of emotional distress based on the “negligent misinformation” which he caused to be transmitted to her. Held:

It is a contradiction in terms to base a claim for intentional infliction of emotional distress on mere “negligent misinformation.” A cause of action for intentional infliction of emotional distress must be predicated on misconduct of an outrageous or egregious nature, which is “so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.” Ga. Power Co. v. Johnson, 155 Ga. App. 862, 863 (274 SE2d 17) (1980). Clearly, Dr. Caplan’s conduct in this case does not fall into this category. Indeed, it borders on the ridiculous to suggest that it was his intention to cause the plaintiff emotional distress or that he was engaged in some nefarious scheme to make money at the expense of her mental and emotional well being. Quite obviously, Dr. Caplan had no intention of terrorizing, harassing, or insulting the plaintiff but sought merely to avoid problems with her health insurance carrier, for her benefit as well as his own.

The cases relied upon by the plaintiff are quite distinguishable from the case before us and provide no support whatever for a recovery in this case. In Greer v. Medders, 176 Ga. App. 408 (336 SE2d 328) (1985), recovery was authorized against a physician who had verbally abused and insulted a patient and the patient’s wife as the patient lay in a hospital bed attempting to recover from recent surgery. In Chuy v. Philadelphia Eagles Football Club, 595 F2d 1265 (3rd Cir. 1979), a case which is not, in any event, binding on this court, the defendant physician inexplicably made a false announcement to the press that the plaintiff, a professional football player, was suffering from a fatal disease, knowing such was not the case. Although in Stafford v. Neurological Med., Inc., 811 F2d 470 (8th Cir. 1987), the defendant physician’s alleged misconduct was virtually identical to that alleged in the present case, the patient there did not merely suffer emotional distress as a result of the physician’s misstatement on the insurance form, she committed suicide. Consequently, the plaintiff there was not limited to a recovery for intentional infliction of emotional distress but was authorized to recover on the basis of mere negligence.

Judgment affirmed.

Carley and Benham, JJ., concur.

Decided October 5, 1987

Rehearing denied October 19, 1987

Joseph B. Bergen, Frederick S. Bergen, for appellant.

William P. Franklin, Jr., Wendy W. Williamson, for appellees.

       See, e.g., American Fin. & Loan Corp. v. Coots, 105 Ga. App. 849 (125 SE2d 689) (1962) (recovery authorized against bill collector who terrorized plaintiff and his family at gunpoint); Delta Fin. Co. v. Ganakas, 93 Ga. App.. 297 (91 SE2d 383) (1956) (recovery allowed against defendant whose agent threatened small child with arrest in attempt to repossess her parents’ television set); and Stephens v. Waits, 53 Ga. App. 44 (184 SE 781) (1936) (recovery allowed against defendants who physically intimidated plaintiffs as they were attempting to bury family member).


author: Deen, Presiding Judge.

text:
    75232.
    RINGEWALD v. CRAWFORD W. LONG MEMORIAL HOSPITAL et al.
    (362 SE2d 105)
   Deen, Presiding Judge.

On July 3, 1984, the appellant, Dr. Robert H. Ringewald, underwent quadruple coronary artery bypass surgery at Crawford W. Long Memorial Hospital. Later that same day, a second operation was necessary to remove a “bulldog clamp” that the operating physician inadvertently left in Ringewald’s chest cavity.

On July 1,1986, within two years of the surgery but over one year from the date he discovered that the/ “bulldog clamp” had been left in his chest, Ringewald commenced this action against the operating physician and the hospital, and others associated with the operation. The trial court granted summary judgment for the defendants, finding that Ringewald’s action was barred by the one-year statute of limitations contained in OCGA § 9-3-72. Held:

1. OCGA § 9-3-72 provides that the general two-year limitation period for medical malpractice actions “shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered. For purposes of this Code section, the term ‘foreign object’ shall not include a chemical compound, fixation device, or prosthetic aid or device.” Unfortunately for the appellant, there is nothing ambiguous about the statute’s requirement that the action must be brought within one year of the discovery of the foreign object, regardless of whether this has the effect of extending or diminishing the general limitation period for a medical malpractice action.

Whether an object constitutes a “fixation device,” thus rendering OCGA § 9-3-72 inapplicable, must depend upon the purpose and use of that object. See, for example, Shannon v. Thornton, 155 Ga. App. 670 (272 SE2d 535) (1980). In this case, the “bulldog clamp” was a type of arterial clamp used during the bypass operation to occlude the vein graft temporarily, and which was to be removed upon completion of the operation. With that purpose and use, the “bulldog clamp” did not constitute a fixation device for purposes of this statute.

Decided October 5, 1987

Rehearing denied October 19, 1987

Steven J. Misner, Richard P. Lindsey, for appellant.

Dennis A. Elisco, Lance D. Lourie, J. M. Hudgins IV, Hunter S. Allen, Jr., for appellees.

2. The appellees’ motion to impose a penalty upon the appellant for filing a frivolous appeal, pursuant to this court’s Rule 26 (b), is denied.

Judgment affirmed.

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


text:
    75253.
    FELTON v. THE STATE.
    (362 SE2d 107)
   Banke, Presiding Judge.

The appellant was convicted in Gwinnett County of the theft of a motor vehicle belonging to his employer. The salient facts are not in dispute. The appellant was employed by a landscaping company. His duties included driving a co-employee to and from work each day, using the employer’s station wagon. On July 1, 1986, after transporting the employee from Gwinnett County to a job site in Walton County, the appellant disappeared with the vehicle. It was shown that on this same day the appellant had borrowed substantial sums of money from two employees. The car was recovered some two months later in Fulton County, still in the possession of the appellant. Held:

1. In his first and second enumerations of error, the appellant contends that the state failed to prove that venue properly lay in Gwinnett County. He argues that since it was established without dispute that he had “authority” from his employer to drive the car from Gwinnett County to Walton County, there was no basis for a finding that Gwinnett County had been the situs of a motor vehicle theft.

Generally speaking, the existence of proper venue is a question for the jury. Taylor v. State, 176 Ga. App. 567 (1) (336 SE2d 832) (1985). With specific reference to prosecutions for theft, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” OCGA § 16-8-11. See Crosby v. State, 232 Ga. 599 (207 SE2d 515) (1974). See also Bundren v. State, 247 Ga. 180 (274 SE2d 455) (1981).

There is no question that the appellant in the present case was in control of the vehicle in Gwinnett County on the day the theft occurred, and the jury could reasonably have concluded from the evidence that he formed the intent to steal the vehicle before he drove it out of Gwinnett County. Circumstantial as well as direct evidence may be used to prove venue. Loftin v. State, 230 Ga. 92, 94 (195 SE2d 402) (1973). We hold that the evidence presented by the state was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt both that the appellant had committed the offense of motor vehicle theft and that venue for the prosecution properly lay in Gwinnett County. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 5, 1987

Rehearing denied October 19, 1987

Samuel H. Harrison, for appellant.

Thomas C. Lawler III, District Attorney, Tracy A. Lorowitz, Assistant District Attorney, for appellee.

2. The appellant contends that the provisions of OCGA § 16-8-11 dealing with venue over a crime committed in more than one county should not have been charged to the jury because the evidence proved that he did not exercise unlawful control over the motor vehicle until he had left Gwinnett County. Based on the foregoing discussion, we find this enumeration of error to be without merit.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Sognier, Judge.

text:
    74454.
    DALTON JUNIOR COLLEGE v. BRADLEY.
    (362 SE2d 137)
   Sognier, Judge.

Ira Van Bradley sought a hearing before an administrative law judge when his former employer, Dalton Junior College, suspended the workers’ compensation benefits he was receiving for a work-related injury incurred in 1978. The ALJ found that Bradley had experienced a change of condition for the better rendering him able to perform his regular work and accordingly approved the suspension of the benefits Bradley was receiving for total inability to work. The State Board of Workers’ Compensation made the ALJ’s award its own. The Superior Court of Whitfield County reversed the Board and we granted Dalton Junior College’s application for discretionary appeal.

Appellant contends there is some evidence in the record showing that appellee experienced a change of condition for the better and therefore the superior court erred by reversing the Board’s decision. While we agree with appellant that there is ample evidence showing the present condition of appellee which reflects upon appellee’s ability to perform work, the record also reveals the existence of a prior order entered by an earlier Board which found appellee to be disabled and which awarded him benefits on the basis of evidence that appellee, testifying uncontrovertedly in the current hearing, asserts was identical to the evidence presented by appellant in the case sub judice. It appears affirmatively of record that this information regarding the earlier Board was not before either the ALJ or the current Board and was not considered by them in rendering their decisions.

Decided October 19, 1987.

Nancy R. Foster, Benjamin H. Terry, for appellant.

Don L. Hartman, Robert A. Wharton, Jr., for appellee.

“ ‘By “change in condition” is meant a change in the physical condition of the claimant subsequent to the entering of the award; and where on a hearing requested by the employer to determine change in condition, it does not appear that the claimant’s physical condition has changed for the better since the previous award, the employer cannot prevail even though the previous award erroneously awarded the claimant compensation. [Cit.]’ [Cit.]” (Emphasis supplied.) Aetna Cas. &c. Co. v. Walker, 113 Ga. App. 883, 885 (150 SE2d 148) (1966). See also Hartford Acc. & Indem. Co. v. Dutton, 116 Ga. App. 535 (158 SE2d 272) (1967). We are thus in agreement with the superior court that the Board should have considered the evidence regarding the earlier award in order to have determined whether appellee underwent a change of condition under OCGA § 34-9-104 (a) since the date of the earlier award. However, we disagree with the superior court that this necessarily requires reversing the Board’s decision. In the interest of judicial economy, we therefore remand this appeal with direction that the superior court vacate its order so that pursuant to OCGA § 34-9-105 (d), it may instead vacate the Board’s order and recommit the controversy to the Board for the sole purpose of considering the evidence in the earlier record and the findings therein, and comparing these with appellee’s existing condition so that the presence or absence of a change of condition can be determined. Thereafter, the losing party shall be free, should it wish to do so, to reinstitute the appeals process set forth in OCGA § 34-9-105 (b), bearing in mind any subsequent review by this court must be sought pursuant to OCGA § 5-6-35 (a) (1).

Case remanded with direction.

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


author: Benham, Judge.

text:
    74693.
    LAVAN et al. v. PHILIPS.
    (362 SE2d 138)
   Benham, Judge.

Appellants and appellee were involved in a collision on December 25, 1982. In a complaint stamped “Filed” on December 26, 1984, appellants sought damages for personal injuries allegedly suffered in the collision, and loss of consortium. The trial court granted appellee’s motion to dismiss appellants’ personal injury claims on the ground that the statute of limitation had expired before appellants filed suit, and directed the entry of a final judgment as to that issue. See OCGA § 9-11-54 (b). This direct appeal followed. See Wills v. McAuley, 166 Ga. App. 4 (1) (303 SE2d 26) (1983).

“Actions for injuries to the person shall be brought within two years after the right of action accrues. ...” OCGA § 9-3-33. The statute of limitation commenced on the day of the collision, and expired on December 24, 1984. Reese v. Henderson, 156 Ga. App. 809 (275 SE2d 664) (1980); Dowling v. Lester, 74 Ga. App. 290 (1) (39 SE2d 576) (1946). As noted above, the clerk marked the complaint as filed on December 26, 1984, after the statute of limitation had expired. Appellants contend that the stamped date is not controlling because the pleading was delivered to the clerk prior to the expiration of the statute of limitation. In response to appellee’s motion to dismiss, appellants presented various affidavits which established that: at the suggestion of a deputy clerk of the Superior Court of Hall County, appellants’ complaint was sent by Express Mail at.7:20 p.m. on Thursday, December 20, 1984, to the post office box designated by the office of the Clerk of the Superior Court of Hall County as the official receptacle for the receipt of pleadings and correspondence; the envelope so mailed was received and attempted delivery made at the clerk’s post office box at 7:30 a.m. on Saturday, December 22; although the post office was open on Monday, December 24 from 8:30 a.m. until 5:00 p.m., the envelope was not picked up by an agent of the clerk’s office until 8:55 a.m., Wednesday, December 26; while it was the routine and regular practice of the clerk’s office to daily pick up mail delivered to the post office box and stamp the documents contained therein as received, the mail was not picked up from the post office box on December 24, 1984. After conducting a hearing on appellee’s motion to dismiss, the trial court found that the clerk’s office closed at 5:00 p.m. Friday, December 21, for a long holiday weekend and did not reopen until 8:00 a.m. Wednesday, December 26. The trial court dismissed the personal injury claims after concluding that appellants assumed “all risks that delays in the mails” would result in untimely filing and did not exercise such due diligence as to enable them to invoke the spirit of OCGA § 9-10-133.

“The actual date of filing is the date upon which the paper is handed to the clerk to be filed. [Cits.]” Brinson v. Ga. R. Bank & Trust Co., 45 Ga. App. 459, 461 (165 SE 321) (1932). See also Forsyth v. Hale, 166 Ga. App. 340, 341 (304 SE2d 81) (1983). The clerk’s endorsement as to the date of filing is the best evidence of the filing of such paper, and is presumed correct as long as it is not challenged. Id. However, the clerk’s endorsement is not a necessary prerequisite to filing, but only evidence of delivery of the paper intended to be filed to the clerk. Id. “So, where a [pleading] has been delivered for filing to the clerk, it will be deemed filed even though that officer fails to make the proper entry of filing thereon. [Cit.]” Brinson, supra at 461.

Appellants presented direct testimony challenging the presumption that the complaint was delivered to the clerk for filing on the date on which the clerk endorsed it. Compare Kight v. Watts, 150 Ga. App. 694 (258 SE2d 323) (1979); State of Ga. v. Jones, 125 Ga. App. 361, 363 (187 SE2d 902) (1972). That evidence reflects that the complaint was delivered to the official receptacle of the clerk’s office on a Saturday, a day on which it is assumed the clerk’s office would be closed, and that it remained in the official receptacle through Monday, December 24, a day on which, according to the trial court’s order, the clerk’s office remained closed. The clerk’s office continued to be closed on Tuesday, December 25, Christmas Day, a public and legal holiday. OCGA § 1-4-1.

The county courthouse and the county offices maintained therein are statutorily-mandated to remain open to transact the public’s business “during normal working hours,” defined as “a minimum of 40 working hours during each calendar week, except for those weeks during which public and legal holidays, which are recognized and designated as such by Georgia law or by the governing authority of the county, are observed.” OCGA § 36-1-12. Monday, December 24, was not a public and legal holiday as designated by statute (see OCGA § 1-4-1), and there is no evidence contained in the record that the governing authority of Hall County had designated the day as a public and legal holiday. There is no evidence of record that the clerk’s office had posted notice of its intent to be closed on a non-holiday (compare State of Ga. v. Jones, supra), or that its employee had so informed appellants’ agent when she called and mentioned that the statute of limitation on the case would expire in a matter of days.

We recognize and continue to adhere to the principle that one who selects the United States Postal Service as an agent to transmit a complaint to a clerk assumes “all the risks that [are] usually incident to the business” of mail delivery. State of Ga. v. Jones, supra at 363. While appellants did assume the risks connected with mail delivery, it is undisputed that the complaint timely reached the confines of the clerk’s post office box. It was not the action of the postal service selected by appellants that denied them the last day of the applicable statute of limitation; rather, it was the office of the clerk that did so by being closed on a weekday not a public and legal holiday. Had the clerk’s office been open and had the clerk followed the avowed “routine ancLregular practice of the office to pick up mail daily and mark it as having been received,” appellants’ complaint would have been endorsed as timely filed. Inasmuch as it is undisputed that the error was the clerk’s and was not attributable to appellants or their counsel (see Sanders v. Williams, 73 Ga. 119 (1884)), and that the clerk’s endorsement of December 26, 1984, did not accurately reflect the actual filing date of December 24, the trial court should have ruled the complaint timely filed and denied the motion to dismiss.

Decided October 19, 1987.

William J. McKenney, David M. Kupsky, for appellants.

B. Andrew Prince, for appellee.

Judgment reversed.

Banke, P., J., and Carley, J., concur.


text:
    74763.
    JIM ALTMAN INSURANCE, INC. v. ZORN & SON INSURANCE AGENCY, INC.
    (362 SE2d 142)
   Benham, Judge.

Appellant brought suit against appellee on a contract. Appellee answered and moved to dismiss the suit on the ground that the claim asserted in the complaint should have been asserted in a pending lawsuit in which appellant was defendant and appellee was plaintiff. After stating on the record that it was considering only the pleadings, the trial court entered an order which dismissed the complaint in this case and simultaneously dismissed the counterclaim appellant was seeking to assert in the related case. The trial court’s ruling in this case, that the claim asserted in the complaint was a compulsory counterclaim in the other case, was based on a review of the record of the other case. While taking judicial notice of another record in the same court is certainly within the trial court’s power (see Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984)), the effect of having done so was to convert appellee’s motion to dismiss into a motion for summary judgment by considering matters outside the pleadings in this case. OCGA § 9-11-12 (c).

That being so, it was necessary to give appellant notice of the motion as is required by OCGA § 9-11-56 (c), and an opportunity to present any materials made pertinent by the motion. Harkins v. Harkins, 153 Ga. App. 104 (1) (264 SE2d 572) (1980). Since appellant was given neither notice nor opportunity, the judgment must be reversed.

Decided October 19, 1987.

Malcolm F. Bryant, Jr., for appellant.

D. Duston Tapley, Jr., for appellee.

Judgment reversed.

Banke, P. J., and Parley, J., concur.


author: Pope, Judge.

text:
    74852.
    In the Interest of M. L. R.
    (362 SE2d 140)
   Pope, Judge.

The appellant is a minor child who was charged with several traffic violations. Pursuant to In the Interest of L. J. V., 180 Ga. App. 400 (349 SE2d 37) (1986), the matter was submitted to the juvenile court. Upon a finding that the minor had committed the offense of following too closely, the juvenile court made an adjudication of delinquency and ordered the minor, inter alia, to relinquish his operator’s license until completion of a driver’s education course and to make restitution to the victim of his traffic offense in the amount of $250 plus “any other reasonable restitution so that the victim may be compensated for his loss.” The juvenile court denied the minor’s motion to require the court to retain the record of the proceedings and not to transmit the citation and revocation of license to the Department of Public Safety. The minor argued that the transmittal of the juvenile court record to the Department of Public Safety denied him the protection of the juvenile court system. Therefore, the minor requested trial by jury, which was also denied. The minor appeals the denial of his motions and the order to pay restitution of an unspecified amount.

1. Appellant minor’s first and third enumerations of error both relate to the juvenile court’s denial of the motion to retain the record of these proceedings in the court and also the court’s order that the Department of Public Safety be notified of the proceedings. Accordingly, these two enumerations will be addressed as one.

The law provides generally that juvenile court records are to remain confidential. See OCGA §§ 15-11-58 and 15-11-59. However, an exception to this rule is carved out for proceedings relating to juvenile traffic offenses. The hearing on a juvenile traffic offense must be open to the public. OCGA § 15-11-49 (e). Where, as in the case at hand, the minor is found to have committed a delinquent act, the juvenile court is authorized to suspend the minor’s driver’s license. OCGA § 15-11-35 (b). The juvenile court is required by OCGA § 15-11-35 (b) to notify the Department of Public Safety of the suspension of a driver’s license. Such notification is consistent with the duty of the Department of Public Safety to maintain an individual record of each licensee for the purpose of issuing and renewing operator’s licenses. Therefore, the juvenile court did not err in notifying the Department of Public Safety of the proceedings in this case. Nevertheless, pursuant to OCGA § 15-11-59 (a), it appears that the traffic citation records of juveniles shall be kept separate from the records and files of adult drivers.

Decided October 19, 1987.

Michael L. Russo, for appellant.

Joseph J. Drolet, Richard E. Hicks, George J. Robinson, Jr., Assistant District Attorneys, for appellee.

2. “All hearings [of the juvenile court] shall be conducted by the court without a jury.” OCGA § 15-11-28 (a). Therefore, the court did not err in denying the minor’s motion for trial by jury and his second enumeration of error is denied.

3. Appellant minor also challenges that portion of the juvenile court’s order which, in addition to the specified sum of $250, requires him to pay “any other reasonable restitution so that the victim may be compensated for his loss.” The juvenile court is authorized to order restitution in accordance with the same requirements governing restitution by adult offenders. OCGA §§ 15-11-35 (a) (5) and 17-14-5 (b). One of the factors to be considered by the juvenile court, or any other authority ordering restitution, is the amount of the victim’s damages. OCGA § 17-14-10 (3). Appellant minor is entitled to judicial determination not only that restitution shall be ordered vel non but also the precise amount thereof if so ordered. Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709) (1980). Therefore, we remand the order of restitution to the juvenile court to amend the order as to the amount of restitution imposed and for any further proceeding which may be necessary to determine the amount of the victim’s damages. See Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (1985).

Judgment affirmed and case remanded with direction.

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

       We note that newly promulgated Rule 13.7 of the Uniform Rules for the Juvenile Courts of Georgia sets forth the proper procedure for notifying the Department of Public Safety of the disposition of all moving violations and serious traffic offenses. Because this rule became effective July 1, 1987, after the hearing in this case, it does not apply to the case at hand.


text:
    74410.
    BOYCE v. THE STATE.
    (362 SE2d 229)
   Pope, Judge.

Wilbur LaRue Boyce, Jr., brings this appeal from his conviction and sentence of theft by taking. Defendant, an attorney, was charged with unlawfully appropriating money belonging to a client. He enumerates seventeen errors.

1. In his first enumeration defendant asserts that the trial court erred in not allowing evidence of the dismissal of charges against him at the preliminary hearing. “A dismissal of charges based upon lack of probable cause does not bar the subsequent indictment and trial of a defendant on the same charges. [Cits.]” Callahan v. State, 179 Ga. App. 556, 559 (347 SE2d 269) (1986). “The decision of the committing court ‘. . . settles nothing as to the guilt or innocence of the defendant.’ ” First Nat. Bank &c. v. State, 237 Ga. 112, 113 (227 SE2d 20) (1976); Wells v. Stynchcombe, 231 Ga. 199, 201 (200 SE2d 745) (1973); see also Neal v. State, 160 Ga. App. 498 (1) (287 SE2d 399) (1981). If a defendant can be indicted and tried on a charge that was dismissed for lack of probable cause in a magistrate court, it follows that such dismissal is irrelevant to issues at trial upon a subsequent indictment, and the trial court did not err in excluding same. See generally OCGA § 24-2-1.

2. Defendant’s second enumeration assigns as error the trial court’s alleged refusal to allow him to perfect the record on the issue of the preliminary hearing by stating that any perfection of the record would be out of the court’s presence during lunch. Clearly, the defendant was provided an opportunity to state for the record what he proposed to prove by the evidence offered. We find neither error nor harm in the fact that the court would be adjourned for lunch at the time of the proffer. See generally Stephen W. Brown &c. Assoc. v. Gowers, 157 Ga. App. 770 (6) (278 SE2d 653) (1981).

3. We find no merit in defendant’s third enumeration which assigns as error the trial court’s sustaining the State’s objection to defendant’s question of the victim on cross-examination as to her opinion of defendant’s intent in this matter. See Fordham v. State, 254 Ga. 59 (4) (325 SE2d 755) (1985); Lester v. State, 75 Ga. App. 42 (8) (42 SE2d 141) (1947).

4. Photocopies of checks, deposits slips and bank statements from defendant’s bank account were identified by the custodian of the bank’s records as having been made and retained by the bank in the normal course of business. These items were thus properly admitted in evidence over defendant’s objection that no foundation had been laid, and the originals did not have to be produced or accounted for. OCGA § 24-5-26. See, e.g., Howard v. State, 173 Ga. App. 346 (3) (326 SE2d 546) (1985).

5. Defendant’s fifth enumeration challenges the testimony of a witness from the State Crime Lab as to his findings regarding the signature endorsement on checks drawn on defendant’s bank account (an attorney’s trust account) on the grounds that he had prepared no written report and that no foundation had been laid for the handwriting samples upon which he based his opinion thát the signature endorsement on the checks was defendant’s. Pursuant to OCGA § 17-7-211 the State timely provided defendant with a copy of a crime lab report signed by the Chief Document Examiner. At the time of trial, this individual was out of the country and unable to testify. The State requested a second document examiner from the crime lab to perform the same tests as the first. This was done during the week prior to trial, but no written report was made. Defendant was notified a few days prior to trial that the second document examiner would be substituted for the first, and defendant was given an opportunity to interview him. The second document examiner testified as to his own evaluation of the handwriting; this testimony was in complete agreement with the report of the first examiner. (The written report itself was not tendered into evidence.)

Since no written report was prepared by the second document examiner, the State was not required under OCGA § 17-7-211 to reduce the examiner’s conclusions to writing and furnish defendant a copy of same. Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983). There is no evidence in this case that the lack of a written scientific report by the second examiner reflects bad faith on the part of the State. See McDaniel v. State, 169 Ga. App. 254 (3) (312 SE2d 363) (1983).

As to the handwriting samples used by the examiner as a basis for his opinion, these documents were identified by the examiner only as having been submitted to him as “known signatures” of defendant. Defendant argues that no foundation was laid as to the origin or authenticity of these documents. We agree with defendant’s assertion in this regard (see generally OCGA § 24-7-7; Gunter v. State, 243 Ga. 651 (4) (256 SE2d 341) (1979)), but find any error to be harmless. The purpose of the handwriting examiner’s testimony was to help establish that defendant withdrew money from his trust account (i.e., money belonging to his clients) and applied it directly to his own use. Defendant subsequently admitted this practice in his own testimony at trial, although he attempted to justify his actions. We find it highly probable that the error did not contribute to the judgment. Cf. Mar tin v. State, 135 Ga. App. 4 (3) (217 SE2d 312) (1975). See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

6. Defendant next asserts error in the denial of his motion for continuance based upon the State’s failure to comply with Uniform Superior Court Rule 30.3 by providing a home address and telephone number for a witness listed by the State but not called to testify. Defendant was unsuccessful in attempting to serve a subpoena upon this witness (a police officer) at his place of work a week prior to trial because the witness was on vacation at the time and would not return to work until the morning trial was scheduled to begin. Defendant had been aware of the existence of this witness for nearly four months prior to trial.

“A reading of the record shows that the motion fails in several respects to meet the eight tests prescribed by [OCGA § 9-10-160]. A failure in any of these respects is normally, and we think in the instant case, fatal to the motion. [Cits.] In matters such as raised by this ground, diligence is required on the part of the party to subpoena the witness. [Cit.] ‘It is not an abuse of discretion to refuse to grant a continuance upon the ground of the absence of a witness, where it appears that the absent witness was not subpoenaed, and that the applicant, by exercise of due diligence, could have had the witness subpoenaed.’ [Cit.]” Lyons v. State, 94 Ga. App. 570, 573-574 (95 SE2d 478) (1956); e.g., Apgar v. State, 159 Ga. App. 752 (4) (285 SE2d 89) (1981); Scoggins v. State, 98 Ga. App. 360 (2a) (106 SE2d 39) (1958).

7. Defendant’s seventh enumeration cites as error the State’s questioning of defendant on cross-examination as to whether he knew his conduct in this case violated the rules and regulations of the State Bar of Georgia. Although we disapprove of the State’s question (see Pope v. State, 179 Ga. App. 739 (3) (347 SE2d 703) (1986)), we find no basis for reversal. First, defendant made no objection to this question at trial and thus failed to preserve the issue for appeal. See Frymyer v. State, 179 Ga. App. 391 (3) (346 SE2d 573) (1986). Second, we view any error in this one-time, general reference to State Bar rules and regulations in nearly 1,000 pages of transcript as harmless, it being highly probable that any error in this regard did not contribute to the judgment. Cf. Pope v. State, supra.

8. Defendant’s eighth enumeration of error is not supported in his brief by citation of authority or argument and thus is deemed to have been abandoned. Court of Appeals Rule 15 (c) (2).

9. Although the practice of “reading law” to the court has been abolished in criminal cases, Conklin v. State, 254 Ga. 558 (10) (331 SE2d 532), cert. den., 88 LE2d 584 (1985), reh. den., 89 LE2d 359 (1986), “[cjounsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge). [Cit.]” Id. at 570-571. Thus, defendant’s ninth enumeration of error has no merit.

10. Defendant’s tenth enumeration of error assigns error to the State’s introduction of documentary evidence during defendant’s case and not in rebuttal. However, the only objection to this evidence raised at trial was to its relevancy and foundation. “[T]he error enumerated on appeal is not the same as the objection urged at trial. It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. [Cits.]” Brantley v. State, 177 Ga. App. 13, 14 (338 SE2d 694) (1985).

11. Defendant’s eleventh and twelfth enumerations of error relate to evidence of similar transactions. The trial court allowed testimony by two former clients of defendant as to transactions similar to the crime alleged in this case for the purpose of showing a common scheme and bent of mind. The court refused to allow evidence by other clients as to defendant’s business conduct with them in order to counter the State’s evidence and to show that it was not defendant’s practice to steal his client’s funds.

It is not the purpose of evidence of similar transactions to place a defendant’s character in issue. Anderson v. State, 183 Ga. App. 669 (1) (359 SE2d 688) (1987). Nevertheless, such evidence is admissible even though it incidentally places a defendant’s character in issue. Andrews v. State, 143 Ga. App. 791 (2) (240 SE2d 142) (1977). The trial court correctly found that the evidence sought to be admitted here was of particular transactions tending to show defendant’s good character and, as such, was properly excluded. See Music v. State, 244 Ga. 832 (1) (262 SE2d 128) (1979); Wilson v. State, 190 Ga. 824 (3) (10 SE2d 861) (1940). We likewise find no error in the trial court’s refusal of defendant’s oral request to give a preliminary charge to the jury on character evidence. See David v. State, 143 Ga. App. 500 (2) (238 SE2d 557) (1977). In any event, any error was rendered harmless in light of the court’s giving such instructions as part of its charge to the jury following the close of the evidence.

12. We find no error in the trial court’s admitting evidence of the similar transactions in this case for any reason assigned by defendant. See, e.g., Morris v. State, 228 Ga. 39 (8) (184 SE2d 82) (1971), cert. den., 405 U. S. 1050 (1972); Pelligrini v. State, 174 Ga. App. 84 (2) (329 SE2d 186) (1985); Thompson v. State, 67 Ga. App. 240 (6) (19 SE2d 777) (1942). We likewise find no error in the trial court’s charge in this regard, as the evidence supported same. See generally Brown v. Matthews, 79 Ga. 1 (2) (4 SE 13) (1887).

13. In his fifteenth enumeration, defendant alleges that the trial court erred in refusing to suppress privileged communications obtained by the district attorney’s office from the State Bar of Georgia. See, in this regard, State Bar Rule 4-221 (g) (255 Ga. 857, 884) (1986). The record discloses no such evidence was tendered at trial, and, thus, any error in this regard was harmless.

Decided October 8, 1987

Rehearing denied October 20, 1987

Richard H. James, for appellant.

Robert E. Wilson, District Attorney, Robert G. Morton, Assistant District Attorney, for appellee.

14. In his sixteenth enumeration, defendant assigns error to the trial court’s failure to disclose a complaint filed with the State Bar by one of the witnesses for the State who testified as to similar transactions and which was part of the State’s file. Defendant made a general request for discovery under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), but has failed to show that the information withheld so impaired his defense that he was denied a fair trial within the meaning of the Brady rule; i.e., he has failed to show that the information withheld was both material and exculpatory. Davidson v. State, 183 Ga. App. 557 (4b) (359 SE2d 372) (1987). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” (Citations and punctuation omitted.) Powell v. State, 171 Ga. App. 876, 880 (321 SE2d 745) (1984).

15. We find no ground for reversal in defendant’s final enumeration assigning as error the trial court’s ruling that the State was entitled to a full transcript of the proceedings when it failed to participate in the cost of same. See State v. Hart, 246 Ga. 212 (1) (271 SE2d 133) (1980); see also Stone Mtn. Mem. Assn. v. Stone Mtn. Scenic R., 232 Ga. 92 (2) (205 SE2d 293) (1974).

Judgment affirmed.

Birdsong, C. J., concurs. Deen, P. J., concurs in judgment only.

       Defendant’s eighteenth enumeration of error, filed as an amendment after the time allowed for filing the enumeration of errors, will not be considered by this court for failure to comply with the Appellate Practice Act and the rules of this court. Arkwright v. State, 223 Ga. 768, 769 (158 SE2d 370) (1967).


author: McMurray, Presiding Judge.

text:
    74765.
    MOSLEY v. THE STATE.
    (362 SE2d 80)
   McMurray, Presiding Judge.

Via indictment couched in four counts, defendant was accused of rape, statutory rape, incest and child molestation. Each count concerned acts of sexual intercourse performed by defendant upon his adopted daughter over a period of time. The jury was unable to reach a verdict with regard to the statutory rape and incest counts; it acquitted defendant upon the rape charge. The jury found defendant guilty, however, of child molestation. Following sentencing, defendant moved for a new trial. The motion was denied and defendant appealed. Held:

1. During the trial, a 37-year-old witness testified that defendant made sexual advances towards her when she was 30-years-old. At that time, the witness was married to defendant’s stepson. Defendant objected to the prejudicial nature of the testimony and pointed out that the evidence was not similar to any crime charged against him. The trial court overruled the objection and allowed the testimony for the limited purpose of showing “as respects anything it might show a pattern concerning incest, that only. Cause [sic] it does not go to anything else.”

Defendant contends the trial court erred in allowing the testimony into evidence. He asserts that the trial court was in error when it ruled that the testimony had a bearing upon the incest charge because the witness and defendant were not related within the prohibited degrees. See OCGA § 16-6-22. Assuming defendant is correct in his assertion, we fail to see how he was prejudiced by the error since he was not convicted upon the incest charge. Ellis v. State, 67 Ga. App. 821 (6) (21 SE2d 316). Accordingly, this assertion lacks merit.

2. One evening, after the trial had commenced, a juror was contacted telephonically by defendant’s wife. She had testified earlier in the trial on defendant’s behalf. The juror immediately informed defendant’s counsel about the irregularity and he brought the matter to the attention of the trial court. The sheriff was dispatched to conduct an investigation. When the trial reconvened, a hearing was held outside of the jury’s presence. The hearing was attended by defendant, his attorney, and the assistant district attorney. At the hearing, the sheriff testified that he had gone to defendant’s house to investigate the matter; that he was accompanied by defendant’s counsel; that defendant’s wife admitted that she telephoned the juror, and that defendant said he knew nothing about it. Thereupon, the juror was summoned and the following transpired:

“THE COURT: For the record we note that you are Mr. Merrill Johnson, Jr., is that correct, sir? A. Yes, sir. THE COURT: You are a citizen of Jenkins County and you had been among the 12 who were selected, chosen and sworn to serve on the case on trial, the State against Clifford Mosley? A. Yes, sir. . . . THE COURT: Is it or not true that Mrs. Mosley contacted you by telephone? A. That’s correct, sir. THE COURT: What is your recollection of what she said to you and what was said by you to her? A. She . . . phone rang probably about 6:30 or seven I guess. And she said this is Mary Mosley. And I said yeah, what can I do for you? And she said I hope that you can see it our way tomorrow. And then she asked about my mother. And I said yeah, thank you and hung up. And then I called Tom [defense counsel]. I called him out at the restaurant here in town and I said Tom, I don’t know the implications or anything and I think you need to get in touch with your client or somebody and stop this. I don’t, I didn’t know what else to do. It shook me up. . . . THE COURT:. . . Mr. Johnson, you sat through the trial, you have been under three oaths. A. That’s right, sir. THE COURT: You have been directed and instructed by the Court more than one time not to reach any conclusion about the case until the end of the case. A. That’s true, sir. THE COURT: Have you reached any opinion in this case yet as to who should prevail? A. No, sir, because I don’t know what you are going to charge us with. THE COURT: All right. Is your mind still opened, fairly and impartially to both sides of the case? A. Yes, sir. THE COURT: Without favor or affection ... A. That doesn’t have any affect . . . THE COURT: ... to either one? A. No, sir, not at all. THE COURT: Have you communicated this telephone call situation to any of the jurors? A. None at all. Nobody but [defense counsel].”

The juror was sent back to the jury room and admonished that he should not inform the other jurors about what had taken place.

Thereafter, defense counsel requested that the juror be removed from the jury panel. (At the outset of the trial, it was agreed that if one or two jurors became incompetent the case could continue with as few as ten jurors.) The trial court denied the request.

Defendant contends the trial court erred in denying his request to take the juror off of the jury. (He also contends the trial court erred in denying a motion for mistrial which was made with regard to the juror. A review of the transcript reveals, however, that although a mistrial motion was discussed, it was neither made nor ruled upon.) We disagree.

“There is general accord among the courts that an unauthorized contact or communication between a witness in a criminal trial and a juror does not vitiate an otherwise valid conviction unless the defendant was actually prejudiced. . . . The cases in other jurisdictions are extremely divided on the question of whether the defendant or the state has the burden of showing either prejudice or a lack thereof. The cases are also divided on the question of the degree of prejudice which must be shown in order to provide grounds for a reversal. In Georgia, it has been held that where an irregularity in the conduct of the juror is shown, the presumption is that the defendant has been prejudiced and the burden is on the state to rebut that presumption. [Cits.]” Martin v. State, 242 Ga. 699, 701 (251 SE2d 240).

In our view, the State’s burden has been met. It cannot be said that defendant was actually prejudiced by the communication. In the first place, the communication was made by defendant’s wife (a witness who testified in defendant’s behalf) and it would appear to be calculated to influence the juror in favor of defendant. Compare Golden v. State, 63 Ga. App. 765 (12 SE2d 108) (communication made to juror by widow of victim). More importantly, the juror stated that he was not influenced by the communication and that he was still open-minded and impartial. Under these circumstances, we are of the opinion that the trial court did not err in refusing to remove the juror from the jury. See Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888).

Decided September 28, 1987

Rehearing denied October 20, 1987

Harry B. James III, Ozell Hudson, Jr., for appellant.

J. Lane Johnston, District Attorney, Rene J. Martin III, Assistant District Attorney, for appellee.

3. In his final enumeration of error, defendant asserts his conviction must be reversed because the verdict of the jury was inconsistent. This enumeration is without merit. The inconsistent verdict rule in criminal cases has been abolished. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    73069.
    PREFERRED RISK MUTUAL INSURANCE COMPANY v. SOUTHERN GUARANTY INSURANCE COMPANY.
    (362 SE2d 157)
    Decided October 20, 1987.

      E. Wy cliffe Orr, for appellant.

      Robert M. Darroch, Elizabeth A. Obenshain, for appellee.
   Beasley, Judge.

On certiorari at 257 Ga. 355 (359 SE2d 665) (1987) the Supreme Court has reversed our decision in Preferred Risk Mut. Ins. Co. v. Southern Guaranty Ins. Co., 181 Ga. App. 688 (353 SE2d 590) (1987). Accordingly, in conformity with the mandate of that opinion, our judgment of reversal is vacated and the judgment of the trial court is affirmed.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    74563.
    HARDEE’S FOOD SYSTEMS, INC. v. HALL.
    (362 SE2d 143)
   Pope, Judge.

Plaintiff Wilhelmina Hall was employed by defendant Hardee’s Food Systems, Inc., for approximately ten years. At the time of plaintiff’s termination she held an assistant manager’s position, which required her to make bank deposits of monies collected during her shift. On January 26, 1985, a Saturday, plaintiff was charged with the responsibility of making the deposit for the night shift. On Monday, January 28, 1985, Adrian Hill, also a Hardee’s assistant manager, learned from the bank that the Saturday deposit had not been made. Hill contacted the plaintiff at home and she informed him that she made the deposit. Hill again contacted the bank and they confirmed that the deposit had not been made.

Plaintiff returned to work Monday night. According to her testimony at trial, when she left work that night she took with her a coat that she had left at work over the weekend. Plaintiff testified that the next day (Tuesday) she found the missing deposit in the coat pocket. She further testified that she attempted to make the deposit that night, but the depository was broken. She then went to the Hardee’s store where she worked. She and Hill left the store to go to the bank to deposit both the Saturday deposit and the deposit for that night’s shift. Upon finding that the depository still was inoperable, they returned to the store and contacted another Hardee’s to see if they could make the deposit from that store; however, that store was closed and no one answered their call. Hill then telephoned the store manager who told him to wait until plaintiff left and then hide the money in the ceiling, which was apparently a common hiding place.

The next morning plaintiff arrived at the store, and although she had not seen where Hill placed them the night before, retrieved the deposits from the ceiling. She then solicited Brenda Jones, another employee, to go to the bank with her to make the deposit. Plaintiff testified that it was unusual to make a deposit at that time of the work day, but that she was anxious to get to the bank with the “late” deposit.

Plaintiff and Jones proceeded to go by car to the bank. After they exited the Hardee’s parking lot, and as they were rounding a curve, an unidentified man opened the door on the passenger side, where Jones was riding, stuck an object in Jones’ side and demanded their money. Plaintiff handed the man the two deposit bags, which were lying on top of her purse. He then told them to count to thirty and not look back, threw the keys under the car and fled. Although the assailant was never apprehended, Jones testified she had seen him standing across from Hardee’s earlier in the day.

The defendant instituted criminal proceedings against plaintiff and plaintiff was arrested on theft by conversion charges. The investigating officer and plaintiff both testified at the probable cause hearing and the case was bound over for prosecution. However, after considering the circumstantial nature of the evidence against plaintiff, the district attorney charged with handling the case decided not to present the case to the grand jury for indictment. At trial he testified that the case was considered “inactive” and in theory could be presented to the grand jury anytime within four years of the date the crime was committed (the statute of limitation for theft by conversion).

Plaintiff then instituted civil proceedings against the defendant asserting claims for malicious prosecution, false imprisonment, slander, libel, assault, battery and violations of 42 USC §§ 1981, 1983 and 1985. Plaintiff also sought attorney fees based on 42 USC § 1988. Plaintiff dismissed her false imprisonment claim at trial and the trial court granted defendant’s motions for directed verdict on the slander, assault, § 1981 and § 1985 claims. The jury returned a general verdict on the four remaining counts and awarded plaintiff $150,000. The trial court also awarded plaintiff $15,600 as attorney fees pursuant to § 1988. Defendant appeals, enumerating as error the denial of its motion for directed verdict on the remaining counts.

1. Defendant first enumerates as error the denial of its motion for directed verdict as to the battery claim. Although conceding that no agent or representative of Hardee’s committed a battery against her, plaintiff nevertheless argues that defendant should be liable for acts committed by police officers during plaintiff’s arrest and subsequent detention. We disagree. Our review of the record discloses no evidence that the arresting and detaining officers’ actions were done in concert with or on behalf of defendant, or that the officers were acting as defendant’s agent in any capacity whatsoever. To the contrary, the record clearly shows that the actions complained of were effected while the officers were discharging their official duties and that defendant could not and did not direct the manner in which these duties were to be performed. Moreland v. Poss, 171 Ga. App. 733, 735 (3) (320 SE2d 841) (1984), rev’d on other grounds, 253 Ga. 730 (324 SE2d 456) (1985). See generally OCGA § 17-4-20 (b). We hold, therefore, that under the facts presented here the trial court erred in failing to grant defendant’s motion for directed verdict on plaintiff’s claim of battery.

2. Defendant next enumerates as error the trial court’s denial of its motion for directed verdict on plaintiff’s libel claim. The record shows that the only evidence of a written defamation presented in the case at bar was the affidavit signed by defendant’s representative to obtain a warrant for plaintiff’s arrest. “It is well established that an affidavit before a magistrate, made for the purpose of causing an arrest, will not support an action for libel, though falsely and maliciously made. Francis v. Wood, 75 Ga. 648 (1886). ‘(T)he affidavit upon which the warrant issued affords no basis for a recovery under a defamation theory. (Cit.)’ Tetrault v. Shelton, 179 Ga. App. 746, 747 (1) (347 SE2d 636) (1986). The remedy where such an affidavit is falsely and maliciously sworn lies rather in the torts of malicious arrest and malicious prosecution. . . . As it appears that all instances of libel alleged were privileged absolutely, [defendant] was entitled to judgment as a matter of law, and the trial court erred by denying its motion for [directed verdict] as to the libel count.” Watkins v. Laser/Print-Atlanta, 183 Ga. Ap. 172, 173 (358 SE2d 477) (1987).

3. Defendant also contends that the trial court erred in denying its motion for directed verdict on plaintiff’s USC § 1983 claim. “A plaintiff in a § 1983 action must show (1) that he has been deprived of a right secured by the constitution and laws of the United States, and that (2) the defendant acted under color of state law. . . . The conduct causing the deprivation must be fairly attributable to the state in order to be conduct under-color-of-state-law. This is characterized as the fair attribution test[, which] is itself broken into a two part approach. . . .” (Punctuation omitted.) Poss v. Moreland, 253 Ga. 731, supra. In the present case, plaintiff relies on certain acts of cooperation and sharing of information between the defendant and the police officers charged with investigating and arresting plaintiff to show that defendant acted under color of state law. We agree with defendant that, as a matter of law, defendant’s actions in the present case do not constitute state action. “[I]t is manifestly clear that either knowing collusion with a private person in a fraudulent, illegal scheme by state officials or the use of an allegedly unconstitutional statute or procedure is necessary for the actions of a private person to fairly be attributable to the state. Without such state action, no claim is stated under § 1983 and the suit must be dismissed.” Lomax v. Davis, 571 FSupp. 805, 807 (N.D. Miss. 1983), and cits. Moreover, “[t]he mere fact that the [defendant was a complainant and witness] in an action which itself was prosecuted under color of law does not make [its] complaining or testifying other than what it was, i.e., the action of [a] private [person] not acting under color of law.” Grow v. Fisher, 523 F2d 875, 879 (7th Cir. 1975). Hence, the trial court also erred in denying defendant’s motion for directed verdict as to plaintiff’s § 1983 claim.

4. Likewise, because 42 USC § 1988 authorizes the trial court to award attorney fees only to a prevailing party in a section 1981, 1982, 1983, 1985 or 1986 action, our holding in Division 3, supra, also mandates the reversal of the trial court’s award of attorney fees pursuant to that section. Davis v. Ramey, 174 Ga. App. 417 (4) (330 SE2d 130), rev’d on other grounds, City of Roswell v. Davis, 255 Ga. 158 (335 SE2d 582) (1985).

5. Defendant also challenges the denial of its motion for directed verdict on the malicious prosecution claim. In order to prevail on a malicious prosecution claim, the plaintiff must show (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. See, e.g., J. C. Penney Co. v. Miller, 182 Ga. App. 64 (2) (354 SE2d 682) (1987). In the present case, the assistant district attorney charged with prosecuting the criminal charges against plaintiff testified that because the case against plaintiff consisted entirely of circumstantial evidence, he decided not to present the case to the grand jury for indictment. He further testified, “Now, procedurally what that means ... is that the case . . . , it’s inactive. Technically it could be indicted or brought to a grand jury at any time within the statute of limitation for this particular crime. In other words, our office in theory could present the case to the grand jury anytime within four years from the . . . date of alleged crime.”

“Since four years have not elapsed since the [warrant was] issued, nothing prevents the district attorney from proceeding with a prosecution. See OCGA § 17-3-1 (c). ‘The present disposition simply does not constitute an abandonment and/or termination of the proceeding, absent a subsequent formal entry of dismissal of the criminal charges. (Cits.)’ McCord v. Jones, 168 Ga. App. 891, 893 (311 SE2d 209) (1983). . . . Since termination of the prosecution in [plaintiffs] favor is an essential element of [a claim] for malicious prosecution and malicious arrest, [cits.], the trial court [should have granted defendant’s motion for directed verdict as to this claim].” Watkins v. Laser/Print-Atlanta, 183 Ga. App. at 172-73, supra.

6. Based on our determination that the trial court erred in denying defendant’s motions for directed verdict as to all four of plaintiffs remaining claims, it is unnecessary for us to consider defendant’s remaining enumerations of error.

Decided October 20, 1987.

James J. Thomas II, Kevin A. Ross, for appellant.

Hirsch Friedman, for appellee.

Judgment reversed.

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

       Specifically, plaintiff argues that the handcuffs placed on her wrists were too tight, that she was forced to sit on her handcuffed hands during the ride to the police station and that once she was at the police station she was not allowed to use the rest room for an extended period of time, causing her to urinate on herself.

       Plaintiff also argues that certain statements allegedly made to a Hardee’s franchise owner concerning the “incident” constituted a republication of the written defamation and were therefore sufficient to support her claim for libel. However, the record does not show that the statements allegedly made were in the nature of a republication of any libelous material. Moreover, the only evidence of such statements is plaintiff’s testimony at trial that the franchise owner told her of such statements. This hearsay evidence clearly has no probative value and thus cannot form the basis of plaintiff’s libel claim. Land v. Delta Airlines, 147 Ga. App. 738 (4) (250 SE2d 188) (1978).


text:
    74606.
    FUDGE v. THE STATE.
    (362 SE2d 147)
   Sognier, Judge.

Appellant was convicted of driving under the influence of alcohol, driving while his blood contained .12 percent or more by weight of alcohol and making an improper lane change. He appeals from those convictions.

1. In his first four enumerations of error appellant contends the trial court erred by denying his motion to suppress evidence of the results of an alcohol breath test. He argues that because he was not taken immediately to jail, and was not advised by the arresting officer of his right to an additional test by a person or agency of his own choosing, the results of his breath test should have been suppressed.

The trial court, in its order denying the motion, found that the length of time appellant was detained in the police car (before being transported to jail) affects the weight, not the admissibility, of the breath test results. The court also found that appellant made a request for an additional test, but later withdrew that request. Although there is no transcript of the hearing on the motion to suppress, testimony of witnesses during trial on the merits supports the trial court’s findings. A trial court’s decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous. Wilson v. State, 179 Ga. App. 780, 782 (1) (347 SE2d 709) (1986). We find nothing erroneous in the trial court’s decision. Further, we must assume, absent the availability to us of whatever material the court considered while hearing evidence on the motion, that the court properly exercised its judgment and discretion in denying appellant’s motion to suppress. Myrick v. State, 168 Ga. App. 223, 224 (2) (308 SE2d 563) (1983).

2. In his next four enumerations appellant asserts error by the trial court in allowing the State to present evidence placing his character in issue prior to appellant doing so, and by denying his motions for mistrial based on such evidence. These enumerations of error are without merit.

The arresting officer was allowed to testify that he first observed appellant’s vehicle start out from a stop light, pass another vehicle and swerve back in front of another vehicle, causing the latter vehicle to put on its brakes and swerve to avoid hitting appellant’s vehicle. The officer also testified that he moved his vehicle through traffic to approach appellant’s vehicle and got up to excessively high speeds, as fast as 70 miles per hour. Appellant moved for a mistrial (on three occasions) on the ground that appellant was not charged with speeding, and such testimony improperly placed his character in issue. Each motion was denied and appellant alleges that denial of his motions was error.

There is no error in admitting evidence as part of the res gestae even though it may incidentally place a defendant’s character in issue. Wolke v. State, 181 Ga. App. 635, 636 (2) (353 SE2d 827) (1987). This rule has been applied specifically to evidence showing the circumstances relating to a defendant’s arrest. Sims v. State, 180 Ga. App. 537, 538 (2) (349 SE2d 783) (1986). Hence, there was no error in allowing the officer’s testimony and denying appellant’s motions for a mistrial.

3. Appellant contends the trial court erred by sustaining an objection by the State during cross-examination of a State witness because the State failed to assert good and sufficient grounds for its objection. Appellant made no objection to the court’s ruling on the ground stated in this enumeration, and this court will not consider questions raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

4. In his next two enumerations appellant alleges that the trial court commented improperly on the evidence. The first instance of which appellant complains occurred when he was being questioned on cross-examination. Appellant objected to a question on the ground that he had answered the same question twice before and the prosecuting attorney did not have a right to argue with the witness by asking the same question a third time. The prosecuting attorney stated that she had a right to point out conflicts in appellant’s testimony, and the court said “[w]ell, you do.” Appellant argues that this was an improper comment on the evidence, because it expressed the court’s opinion that there was, in fact, a conflict in appellant’s testimony. However, appellant made no objection to the court’s comment and as stated in Division 3, this court will not consider questions raised for the first time on appeal. Tolbert, supra. The same rule is applicable to the court’s comment during appellant’s closing argument in response to an objection by the State, when the court stated: “Don’t comment on that. The Court knows of no evidence on that. That would be improper argument to go to the jury.” Appellant continued his argument and made no objection to the court’s statement. Hence, we will not consider this issue, which is raised here for the first time.

5. Lastly, appellant complains of two charges by the court which he argues were incorrect. The first charge complained of was a charge that the arresting officer shall designate which test shall be administered (breath, blood or urine test), and after having taken the test required by the officer the defendant then has the right to take an additional test of his own choosing of the same bodily fluid. Appellant objected to this charge on the ground that the court failed to charge that it was the duty of the arresting officer designating the test to be administered to also advise the defendant that he had a right to an additional test to rebut the State’s test, and if that was not done it was the duty of the jury to disregard the results of all tests.

Appellant made no written request for such a charge. Where error is assigned upon a correct principle of law given in charge, as was done here, and the exception to it is that it does not go further and elaborate in more detail additional principles applicable to the evidence, such is not reversible error in the absence of a written request to charge more specifically. Watson v. State, 181 Ga. App. 512, 513 (2) (352 SE2d 828) (1987).

Appellant also excepted to the court’s charge that if the jury found that appellant had .12 percent or more alcohol in his blood that the jury could find him guilty of the offense of operating a moving vehicle while his blood contained .12 percent or more by weight of alcohol. Appellant argues that this charge was not adjusted to the evidence because he took a breath test, and there was no evidence as to his blood alcohol content. This argument is without merit.

OCGA § 40-6-392 (a) provides, in pertinent part: “Upon the trial of any . . . criminal action . . . arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol ... in a person’s blood at the alleged time, as determined by a chemical analysis of the person’s . . . breath . . . shall be admissible. . . .” (Emphasis supplied.) This statute makes it clear that a breath test is used to determine the amount of alcohol in a person’s blood. We also pointed out in Fisher v. State, 177 Ga. App. 465, 466 (2) (339 SE2d 744) (1986), that an intoximeter which determines the amount of alcohol in one’s breath, and calculates therefrom the blood alcohol content, performs a chemical analysis. While not stating specifically that a breath test determines the amount of alcohol in a person’s blood, no other conclusion can be drawn from the holding in Fisher. Hence, the trial court’s charge was not erroneous.

6. We note that appellant was convicted of driving under the influence of alcohol to a degree rendering him incapable of driving safely, and a separate charge of driving while there was .12 percent or more by weight of alcohol in his blood, both offenses arising out of the same conduct. Although the court sentenced appellant for only one driving under the influence offense, this court has held that such evidence will not support convictions of two separate offenses. Sanders v. State, 176 Ga. App. 869, 870 (4) (338 SE2d 5) (1985); Hadden v. State, 180 Ga. App. 496, 498 (3) (349 SE2d 770) (1986). Accordingly, appellant’s conviction of driving with .12 percent or more by weight of alcohol in his blood is vacated.

Decided October 20, 1987.

John L. Watson, Jr., for appellant.

John C. Carbo III, Solicitor, Anne M. Landrum, Assistant District Attorney, for appellee.

Judgment affirmed as to Count 1 and making an improper lane change. Judgment vacated as to Count 2.

McMurray, P. J., and Beasley, J., concur in the judgment only.


text:
    74648.
    GARRETT v. THE STATE.
    (362 SE2d 150)
   Benham, Judge.

Appellant was convicted of aggravated assault and kidnapping. On appeal, he challenges the sufficiency of the evidence, certain portions of the jury charge, lack of opportunity to except to the charge, and the trial court’s conduct regarding statements made by the prosecuting attorney.

1. The victim, a 21-year-old female, testified that as she was walking home from a mini-market on January 21, 1985, she was approached by a man in a tan pickup truck who asked her for directions. While she was near the truck he opened the door and, grabbing her with one hand, put a knife to her throat and told her to get in the truck. He told her he would kill her if she tried to scream or escape, and since she was afraid he would harm her, she got into the truck and rode with him to another location about 10 minutes away. He told her he had taken her to teach her not to talk to strangers, and he told her not to report the incident to the police. He then let her go, and she walked around to the back of the truck, got its tag number, and walked to her mother’s house about five miles away. An investigation by the Conyers Police Department led to appellant’s arrest. He fit the description the victim gave, and he owned a pickup truck and clothing also matching her descriptions. The victim identified him in a photographic lineup as her assailant, and identified items of clothing he had been wearing and other items which had been in the truck at the time of the incident. Appellant testified in his defense that the victim was hitchhiking when he picked her up, that he drove her to the mini-market so she could make a long distance call, and that he picked her up again and took her home. Appellant said she asked him to drop her off at a particular location so that her jealous boyfriend would not see her get out of the truck. The evidence was sufficient for a rational trier of fact to convict appellant of kidnapping and aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Daughtry v. State, 180 Ga. App. 711 (1) (350 SE2d 53) (1986); Helton v. State, 166 Ga. App. 662 (1) (305 SE2d 592) (1983).

2. Appellant argues that the trial court erred in permitting improper conduct by the State which placed the defendant’s character in issue. During appellant’s direct examination, the prosecuting attorney stated, “I object to the defendant handling the knife or holding it at all.” When the trial court responded that appellant was identifying the knife, the prosecuting attorney stated that he would like somebody else to hold it. The trial court tried to put a stop to the discussion, and appellant’s counsel then stated, “I object to that. I am not afraid of anything.” Appellant now contends that the prosecuting attorney’s statements improperly interjected appellant’s character into issue, and that under OCGA § 17-8-75 the trial court should have rebuked counsel or ordered a mistrial. We find no error. The prosecuting attorney’s remarks were “not outside the parameters of the wide latitude accorded counsel for the state in such cases and did not impermissibly allude to facts which were not in evidence within the meaning of OCGA § 17-8-75 . . . [Cit.]” Carpenter v. State, 167 Ga. App. 634 (7) (307 SE2d 19) (1983). However, assuming arguendo that appellant’s objection was sufficient to invoke a ruling and some action by the trial court, if appellant was not satisfied with the court’s action, it was incumbent upon him to renew his objection and make a motion for mistrial, and his failure to do so precludes his complaint on appeal. Delaney v. State, 154 Ga. App. 772 (1) (270 SE2d 48) (1980).

3. In his fifth enumeration, appellant claims the trial court erred in failing to provide an opportunity for him to except to the jury charge. We find no error. This is a criminal case and the trial court is not obligated to ask counsel whether they have any charge objections before the jury returns its verdict. See OCGA § 5-5-24. Although it might allow the trial court to correct errors at trial if objections were made at that time, there is no waiver of objection when counsel is never asked whether they have any objections to the charge as given. Brady v. State, 169 Ga. App. 316 (5) (312 SE2d 632) (1983). It does not appear that appellant otherwise waived his right to object to the charge, and so he is free to do so here.

4. In appellant’s fourth enumeration he takes the position that the trial court erred in failing to charge the jury on simple assault, because simple assault is a lesser included offense of aggravated assault with a deadly weapon. Appellant did not request the charge, and so the trial court did not err by not giving the charge. Even if appellant had requested it, it would not have been error for the trial court to refuse to give it “when the evidence does not reasonably raise the issue that the defendant may be only guilty of the lesser crime.” Green v. State, 175 Ga. App. 92 (4) (332 SE2d 385) (1985). According to the testimony adduced at trial, appellant either assaulted the victim with a deadly weapon or did not assault her at all; so no issue was presented as to simple assault. Id.

Decided October 20, 1987.

David B. Irwin, for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

5. Appellant claims that the trial court’s instructions to the jury left the jury with the impression that it must either find appellant guilty on both counts or not guilty on both counts, and omitted the possibility of finding him guilty of one count and not the other. We agree. Having reviewed the charge as a whole, we find it to be misleading in that respect. In fact, at one point the trial court told the jury that there were two verdict choices: the jury could either find appellant guilty of kidnapping and aggravated assault or find him not guilty of both charges. That statement and the instructions on the form of the verdict were not accurate. The jury actually had four verdict choices: the two stated by the trial court, and the finding of guilty on aggravated assault but not guilty of kidnapping, and vice versa. Appellant was entitled to a charge giving all of the verdict choices since it was possible that the jury might believe some of each of the witnesses’ testimony and conclude that appellant had committed one crime and not the other. See and compare Williams v. State, 178 Ga. App. 882 (2) (345 SE2d 59) (1986). The State argues that the jury showed no signs of being confused by the instructions and returned a verdict consistent with them. That may be true, but the fact that the jury did not ask for clarification of the instruction does not mean that the instruction itself was proper. Since a crucial portion of the trial court’s charge was so misleading, and since we cannot say as a matter of law that the jury would not have rendered a different verdict with the proper instructions, we must reverse the convictions.

Judgment reversed.

Banke, P. J., and Carley, J., concur.