author: Sognier, Chief Judge. McMurray, Presiding Judge, Pope, Judge,

text:
    A92A1308.
    PARROTT v. THE STATE.
    (427 SE2d 276)
   Sognier, Chief Judge.

Alan Parrott was indicted together with Roosevelt Bray and Donald Ream on a charge of conspiracy to traffic in cocaine in violation of OCGA § 16-13-33. Parrott was tried separately and convicted by a Dodge County jury. He appeals from the denial of his motion for new trial.

1. Appellant contends the evidence was insufficient to support the verdict. The evidence adduced at trial established that in 1984-1986 appellant, who previously had pleaded guilty to drug conspiracy charges in Florida, and his codefendants were placed under surveillance by Florida and U. S. Customs authorities on suspicion of drug smuggling. Evidence was adduced connecting the three men to a Cessna 310 twin-engine aircraft (the “Cessna”) stored at a hangar at Ft. Lauderdale Executive Airport. Pursuant to a court order, federal officials installed a tracking device in the Cessna. During this installation, authorities observed that the Cessna had been modified to add supplemental fuel tanks to increase its flight range. The tracking device subsequently recorded several flights to the Eastman-Dodge County Airport in Georgia where Bray recently had paid cash for a nearby house and two parcels of land.

In February 1985 the Cessna was detected flying low over the Florida coast without having filed a flight plan, which officials explained at trial is consistent with the activities of drug smugglers. Customs officials followed the Cessna in a Customs airplane but were forced to abandon the chase when the Cessna turned out to sea several hours later. On June 10, 1985, the Cessna was detected flying over the Gulf of Mexico near Texas. Again, Customs airplanes tracked the Cessna, flying over Mississippi, Alabama, and Georgia. The Cessna approached the Dodge County airport but then aborted the landing, apparently because the pilot observed the Customs aircraft. The Cessna continued to South Carolina, where parcels were dropped from the plane. The Customs aircraft was forced to discontinue its pursuit due to low fuel, and the Cessna was found abandoned at the Dodge County airport an hour later. Appellant and Bray were seen at an attorney’s office in Eastman the next morning. The parcels dropped from the Cessna were located in South Carolina and were found to contain 150 pounds of South American cocaine with a purity of at least 80 percent.

Additional evidence was adduced that Ream was a pilot and that the Cessna was registered to a corporation he controlled; that a warehouse in Florida connected to appellant and the codefendants was searched and found to contain weapons, records of the criminal enterprise, and aircraft equipment, including the passenger seats removed from the Cessna; that documents prepared by appellant were found in a search of Bray’s Dodge County home the day after the Cessna was abandoned; and that appellant and Ream met with Lazaro Fernandez, an admitted smuggler of Colombian cocaine, to discuss a joint drug smuggling enterprise but later informed Fernandez they could not complete the transaction because they had been forced to abandon their Cessna 310 aircraft after pursuit by law enforcement officials and their warehouse had been searched by authorities. Appellant was arrested in Ft. Lauderdale in July 1986 after a high-speed chase.

“ ‘Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.’ [Cit.] ‘ . . . “Slight evidence from an extraneous source [other than an accomplice] identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict.” ’ [Cit.]” Tookes v. State, 159 Ga. App. 423, 427 (8) (283 SE2d 642) (1981). Circumstantial evidence was adduced from which the jury could conclude that appellant committed one or more overt acts in furtherance of a conspiracy with Ream and Bray to bring large quantities of cocaine into Georgia. We hold this evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of conspiring to traffic cocaine in Georgia. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next contends the trial court erred by denying his motion for mistrial made after Nathan Platt, a witness called by the State, invoked his Fifth Amendment right against self-incrimination. Both the prosecutor and appellant’s counsel previously had been informed by Platt that he would claim Fifth Amendment protection if necessary. Indeed, appellant’s counsel had lunch with Platt the day before his testimony and also talked with Platt’s attorney about Platt’s intentions but did not request a hearing on the issue prior to Platt’s testimony.

On direct examination, Platt testified at length about his prior contacts with appellant and Bray in Florida when Platt was a deputy sheriff. In response to the prosecutor’s questions, Platt admitted having given a statement to Florida authorities about his involvement with appellant and Bray but invoked the Fifth Amendment when asked to disclose the contents of that statement. The court then dismissed the jury and conducted a thorough examination of Platt’s claim of privilege, questioning Platt himself and also allowing appellant’s counsel to cross-examine on this issue. The court concluded that Platt was entitled to assert the privilege, and the prosecutor conceded and stated he would not question Platt further. At that point, appellant moved for a mistrial and the court denied the motion. Appellant then cross-examined Platt, but only on the topic for which he continued to assert his Fifth Amendment protection (although appellant’s counsel did elicit testimony from Platt that his statement in question had been false).

Appellant contends the effect of this incident was to deny his Sixth Amendment right to confront the witnesses against him. To safeguard the right of confrontation, the procedure to be observed when the State calls a witness who has indicated he intends to assert his Fifth Amendment right against self-incrimination, as articulated in Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975) and Lawrence v. State, 257 Ga. 423, 424-425 (3) (360 SE2d 716) (1987) and applied in Greenwood v. State, 203 Ga. App. 901-902 (1) (418 SE2d 160) (1992), is as follows: When the witness manifests his intention to claim Fifth Amendment protection, the court must conduct a hearing outside the presence of the jury to determine whether the testimony the State seeks to elicit potentially could incriminate the witness. Lawrence, supra at 424 & n. 3. If so, the question whether the testimony might incriminate the witness is left to the witness. Id.; Mallin v. Mallin, 227 Ga. 833, 834-835 (1) (183 SE2d 377) (1971). If the witness concludes he must assert his Fifth Amendment privilege, the State will not be permitted, through the use of leading questions on topics the witness has indicated fall within the privilege, to suggest the guilt or complicity of the defendant. Greenwood, supra; Lawrence, supra at 424-425 & n. 3; Lingerfelt, supra. Conversely, if during the hearing the court concludes the testimony could not incriminate the witness, the witness must testify. Lawrence, supra at 424, n. 3.

When the sequence of events is viewed in its entirety, the record clearly demonstrates that no violation of appellant’s Sixth Amendment right of confrontation occurred. First, the trial court did follow the procedure set forth in Lawrence and Lingerfelt. Once Platt asserted the privilege, the court held the requisite hearing and concluded Platt was entitled to claim Fifth Amendment protection, and the State ceased its questioning. See generally Bowen v. State, 194 Ga. App. 80, 81-82 (2) (389 SE2d 516) (1989). Second, in Lingerfelt and its progeny the error harmful to the defendant occurred when the prosecutor continued to ask leading questions he knew the witness would not answer but that implicated the defendant in wrongdoing. Contrary to the dissent’s contentions, that error did not occur here because the evidence damaging to appellant was adduced through questions Platt did answer, not through leading or suggestive questions posed by the prosecutor to which Platt asserted the Fifth Amendment as a defense. Third, appellant could have cross-examined Platt on the damaging portions of his testimony, but he elected instead to pursue questioning only on the one point for which Platt had asserted Fifth Amendment protection.

Perhaps the better approach would have been to hold the hearing before Platt’s testimony began and establish parameters for questioning in advance. However, we do not find the failure to follow such a procedure to be cause for reversal here because, in addition to the fact that the error the hearing procedure is intended to avoid did not occur here, the record unequivocally shows that appellant’s knowledge of Platt’s intentions was at least equal to the State’s knowledge, yet appellant did not request a hearing in advance or otherwise raise the issue until after Platt had asserted his claim and the court had conducted the requisite hearing. Appellant cannot be permitted to complain of a ruling that his own conduct aided in causing. Dobbs v. State, 200 Ga. App. 300, 301 (407 SE2d 782) (1991). Under these circumstances, we find no reversible error. See generally Bowen, supra.

3. Prior to trial, appellant moved the court to compel the State to reveal any deal made with prosecution witnesses as required by Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972). At the motion hearing, the prosecutor denied that any deals had been struck with prospective witnesses but stated that after the trial he would, if requested by any witness, write a letter to appropriate authorities outlining the witness’s participation in the trial. One month after appellant was convicted, the prosecutor did write to Florida authorities to describe the cooperation of Lazaro Fernandez, a witness incarcerated in the Florida penal system. During the hearing on the motion for new trial, the prosecutor explained that he had written the letter in response to a post-trial request from Fernandez.

Even assuming, without deciding, that the record contains some evidence that the prosecution held out the promise of such a letter before appellant’s trial, and assuming further that such an offer constituted the type of agreement that is required to be revealed, see Patillo v. State, 258 Ga. 255, 260-261 (368 SE2d 493) (1988), we find no harmful error. The alleged offer “was of a non-promising nature,” see id. at 261; Fernandez was impeached at trial; other witnesses provided corroborative testimony; and the State was not in a position to make any promises of leniency or parole to Fernandez because he was not incarcerated or charged in Georgia. See id. at 261-262. Thus, there is no reasonable probability that disclosure of the alleged offer would have affected the results of the jury’s deliberations. See Bradley v. State, 193 Ga. App. 515, 516 (2) (388 SE2d 331) (1989).

4. Appellant maintains the trial court erred by failing to dismiss the indictment once appellant was not tried within 180 days of his demand for trial under the Interstate Agreement on Detainers, OCGA § 42-6-20 (“IAD”). The pertinent portion of the IAD provides that whenever a person incarcerated in one state is indicted in another state, “he shall be brought to trial [in the latter state] within [180] days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of . . . his request for a final disposition to be made of the indictment. . . provided that for good cause shown in open court, the prisoner or his counsel being present, the [trial court] may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by the certificate of the appropriate official having custody of the prisoner, stating [specified information].” Id. at Article III (a). This written notice and request “shall be given or sent by the prisoner to the . . . official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court.” Id. at Article III (b).

At the time appellant was indicted in Dodge County, Georgia (April 19, 1989), he was imprisoned in Florida. The record reveals that on August 17, 1989, the Florida Department of Corrections forwarded the requisite IAD forms from appellant to the Dodge County District Attorney. However, the Florida officials sent the court copies to the Oconee County Superior Court instead of to the Dodge County Superior Court in the Oconee Judicial Circuit where the indictment was pending. The IAD request was not filed in Dodge County Superior Court until February 14, 1990. Nonetheless, on January 18, 1990, the District Attorney returned to Florida authorities the completed IAD forms, which included the signature of the Dodge County Superior Court judge to whom the case was assigned. On February 12, 1990, the State moved for an extension of time under the IAD because it had been unable to locate appellant’s codefendant Ream. The court granted this motion in open court and subsequently set the trial on the June 4, 1990 calendar. Appellant’s trial began July 30, 1990, more than 180 days after the IAD request was sent to the District Attorney but only 166 days after the request was filed in the proper court.

We hold that under the circumstances of this case, the rationale advanced in Thompson v. State, 186 Ga. App. 379 (367 SE2d 247) (1988) controls. Here, as in Thompson, appellant was tried within 180 days after the requisite documents were filed with all entities required by the statute. Although the initial failure to forwárd the IAD demand to the proper court was the result of a mistake by Florida authorities, not by appellant, “Georgia’s right to try an accused for a crime committed within its borders should not be imperiled or compromised by a delay occasioned not by its own inaction or negligence, but by the inadvertent or deliberate failure to act of those having custody of the accused in another state.” Id. at 380. Moreover, even assuming, without deciding, that the signature of the Dodge County Superior Court judge on the forms returned to Florida on January 18, 1990 shows that the proper court had timely actual notice of appellant’s IAD demand and that such notice is sufficient to invoke the coverage of the IAD, the State timely moved for a continuance in order to locate a potential material witness, and appellant has failed to show that the grant of this continuance was not “necessary or reasonable” under OCGA § 42-6-20 Article III (a). Accordingly, we hold the trial court did not err by refusing to dismiss the indictment. See generally Thompson, supra at 380-381.

5. Appellant maintains the trial court improperly admitted evidence of prior criminal transactions.

(a) Over appellant’s objection, the State was permitted to introduce a certified copy of a Florida indictment and judgment showing that in 1982 appellant pleaded guilty to charges of conspiracy to traffic in cocaine and marijuana. Appellant contends that under Williams v. State, 261 Ga. 640, 642-643 (c-d) (409 SE2d 649) (1991), submission of the indictment was insufficient to establish the requisite similarity between the Florida offense and the instant charge. We disagree, as the indictment alleged the charged conspiracy in great detail, and alleged particularly that appellant conspired with others to smuggle into the United States by private aircraft large quantities of contraband. Appellant having admitted the facts set forth in the indictment by pleading guilty, Wilson v. Reed, 246 Ga. 743 (1) (272 SE2d 699) (1980), the State sufficiently established the similarity of the offenses. See Johnson v. State, 204 Ga. App. 453 (419 SE2d 741) (1992); Banks v. State, 201 Ga. App. 266, 268 (410 SE2d 818) (1991).

(b) Appellant waived his objection to the admission of the similar transactions listed in sections (C)-(F), (H) of his enumeration by failing to assert at trial his specific objections to the evidence at the time it was offered. Hunter v. State, 202 Ga. App. 195, 196-197 (3) (413 SE2d 526) (1991).

(c) The trial court sustained appellant’s objection to the State’s proffer of evidence appellant entered a plea of nolo contendere to a Florida drug trafficking charge. However, a copy of the plea was attached to another State’s exhibit that was admitted into evidence. We agree with appellant that OCGA § 17-7-95 (c) prohibits the admission of a nolo contendere plea as evidence of a prior similar crime. Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989). Nonetheless, given that evidence of five other similar transactions was properly submitted to the jury, applying the standard for harmless error set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), we find it highly probable that this error did not contribute to the judgment of conviction. See Hendrix v. State, 202 Ga. App. 54, 55 (3) (413 SE2d 232) (1991).

6. Appellant next enumerates as error the trial court’s decision to allow an attorney, McMillan Walker, and his secretary to testify that appellant and Bray met with Walker in his Eastman office the day after the Cessna was found abandoned in Dodge County. It is undisputed that appellant did not engage Walker to represent him as a result of this meeting, and the evidence is in conflict as to whether appellant even considered or discussed such representation. Nonetheless, even assuming, without deciding, that appellant and Walker did communicate “pending” or “in anticipation” of employment of Walker by appellant, see OCGA § 24-9-24, we find no error. The fact of employment is not within the attorney-client privilege, Cranford v. Cranford, 120 Ga. App. 470, 473 (2) (170 SE2d 844) (1969), and the trial court excluded all evidence beyond the mere fact that the meeting between appellant and Walker occurred. See OCGA § 24-9-24 (prohibits disclosure of “communications” between attorney and client). Appellant’s remaining arguments concerning this enumeration were not raised below and accordingly cannot be considered on appeal. See Johnson v. State, 198 Ga. App. 316 (3) (401 SE2d 331) (1991).

7, After the State produced exculpatory evidence in response to appellant’s Brady motion (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)), appellant requested that the court conduct an in-camera inspection. The trial judge indicated he did not conduct such inspections until just before trial. Appellant later renewed his request and raised the issue again at the beginning of the trial, but his request was rejected by the judge who had subsequently been appointed to try the case.

Under the Supreme Court’s holding in Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981), after the State had made its response to the Brady motion the trial court was obliged to conduct an in-camera inspection once appellant so requested. The Supreme Court subsequently held in Carpenter v. State, 252 Ga. 79, 81-82 (310 SE2d 912)

(1984) that a trial court’s failure to comply with the request does not automatically require reversal. Instead, the trial court may conduct a post-conviction review of the material in the State’s file. Id. Accordingly, we remand this case with direction that such an inspection be made. Accord Atkins v. State, 254 Ga. 641, 642 (331 SE2d 597) (1985) .

8. We have reviewed appellant’s remaining enumerations and arguments and have found them to be without merit.

Judgment affirmed and case remanded with direction.

Birdsong, P. J., Beasley, Andrews and Johnson, JJ., concur. Carley, P. J., concurs in Divisions 1, 2, 3, 4, 5, 7, 8, and in the judgment. McMurray, P. J., Pope and Cooper, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that improper submission to the jury of defendant’s plea of nolo contendere to a charge of trafficking in cannabis requires reversal under the binding authority of Abbott v. State, 24 Ga. App. 367 (100 SE 759). Further, I do not agree with the majority’s holding that the jury’s consideration of defendant’s nolo contendere plea was harmless error under the “highly probable that the error did not contribute to the judgment” test enunciated in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). It is also my view that the State’s calling of Nathan Buddy Platt, Jr. as a witness, with full knowledge that Platt intended to invoke his Fifth Amendment right to remain silent, impaired defendant’s Sixth Amendment right of confrontation in violation of the Supreme Court’s directives in Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752), and Lawrence v. State, 257 Ga. 423 (360 SE2d 716). Consequently, defendant should be granted a new trial.

1. The State attempted to prove that defendant committed a crime in the State of Florida similar to the crime charged in the case sub judice by offering a judgment and sentence showing that defendant entered a nolo contendere plea in the State of Florida for the offense of trafficking in cannabis. Defense counsel objected, arguing that the nolo contendere plea is not admissible to prove a prior similar crime. The trial court properly excluded the nolo contendere plea from evidence. OCGA § 17-7-95; Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535). However, the nolo contendere plea was improperly included with a “State’s Exhibit” that was admitted into evidence and considered by the jury.

“Where in a criminal case a letter of such a character as to prejudice the minds of the jurors against the defendant has been excluded from the evidence, and by inadvertence is handed by the solicitor-general to the jury with the documentary evidence in the case, and remains with the jury until their verdict is returned, the presumption is that the jurors read it before arriving at their verdict, and that the defendant’s cause was prejudiced thereby. If all of the jurors testify that they did not read the letter before arriving at their verdict, the presumption is rebutted and a new trial is not required. Where, however, it is not so testified by all of the jurors, the presumption remains and a new trial becomes necessary. This is true even though all the members of the jury testify that the letter did not influence their verdict.” Abbott v. State, 24 Ga. App. 367 (3), supra.

In the case sub judice, there is no dispute that defendant’s nolo contendere plea was excluded from evidence by the trial court; that the nolo contendere plea was included with a “State’s Exhibit” which was submitted to the jury and that consideration of the nolo contendere plea by the jury unfairly placed defendant’s character in issue. OCGA § 17-7-95; Corbitt v. State, 190 Ga. App. 509 (1), supra. Further, there is no proof that jurors did not examine the nolo contendere plea before reaching a verdict. Consequently, the presumption of harm remains and a new trial is required under the standard set in Abbott v. State, 24 Ga. App. 367 (3), supra. Compare City of East Point v. Christian, 41 Ga. App. 536 (2) (153 SE 784), and Morris v. Ga. Power Co., 133 Ga. App. 911 (1) (213 SE2d 66). Nonetheless, the majority holds that admission of the nolo contendere plea is harmless.

In Johnson v. State, supra, the Supreme Court considered whether injection of prejudicial matters not in evidence constituted harmful error and adopted what “is known as the ‘highly probable test,’ i.e., that it is ‘highly probable that the error did not contribute to the judgment.’ Traynor, What Makes Error Harmless, The Riddle of Harmless Error (1970).” Johnson v. State, 238 Ga. 59, 61, supra. In applying this test, the Supreme Court considered the degree of evidence presented at trial and the magnitude of harm resulting from admission of evidence outside the record and determined that it was not possible to say “that it is highly probable that the error did not contribute to the jury’s verdict.” Johnson v. State, 238 Ga. 59, 61, supra.

In the case sub judice, the majority concedes that consideration of the Florida nolo contendere plea by the jury improperly placed defendant’s character in issue but they fail to compare any harm resulting from this error to the degree of evidence presented at trial. Instead, the majority holds that admission of other similar transaction evidence renders the improperly injected evidence harmless. I cannot adopt this standard as it is my view that the “highly probable test” requires an exercise of discretion in considering the magnitude of harm to the degree of evidence presented at trial. It is from this perspective that I view consideration of defendant’s nolo contendere plea by the jury as reversible error. OCGA § 17-7-95; Corbitt v. State, 190 Ga. App. 509 (1), supra.

In the case sub judice, defendant’s conviction was based entirely on circumstantial evidence. Specifically, there is no direct evidence linking defendant to a conspiracy to smuggle drugs into Dodge County, Georgia; there is no direct evidence placing defendant in the aircraft that was allegedly used to smuggle cocaine into Dodge County, Georgia, and there is nothing linking defendant to the contraband that was ejected from the abandoned Cessna aircraft. In fact, my examination of the record reveals that the State’s case was based largely on similar transaction evidence, much of which was substantiated by inadmissible hearsay. Under these circumstances, I cannot say “that it is highly probable that the error did not contribute to the jury’s verdict.” Johnson v. State, 238 Ga. 59, 61, supra.

2. In his fifth enumeration, defendant contends the trial court erred in failing to grant his motion for mistrial after “the invocation of Fifth Amendment privilege in the presence of the jury by an alleged co-conspirator.” Defendant argues that the procedure employed by the State’s attorney in questioning the witness implicated him in criminal activity in Florida and that he was unable to challenge this testimony on cross-examination because the witness invoked the Fifth Amendment.

The State called Nathan Buddy Platt, Jr. with full knowledge that the witness intended to invoke his Fifth Amendment right to remain silent with regard to a statement given to Florida law enforcement officers. Mr. Platt testified, in pertinent part, as follows: “[State’s Attorney]. Do you know [defendant] Alan Parrott? A. To a degree. Q. Okay, How long have you known him? A. Four, maybe five, years. Q. Okay. And, do you know anybody known to you as ‘Breé’? A. I’ve heard of him. Q. All right. Is that [co-defendant] Roosevelt Bray? A. It’s a possibility. Q. Well, is it or isn’t it? A. Yes. Q. Okay. And, you’ve seen ‘Bree’ up here in the last two days you’ve been up here, what yesterday and today? A. Outside the courtroom. Q. Yes, sir. You know [defendant Parrott’s attorney] Mr. McLarty here? A. Yes. Q. All right. You ate lunch with him yesterday, I believe, didn’t you? A. Yes. . . . Q. Okay. Do you reside ... in Glades County, Florida? A. Yes, sir. . . . Q. And have you ever seen [defendant] Parrott in Glades County, Florida? A. Yes. Q. Okay. And [co-defendant] Roosevelt Bray, known as ‘Bree,’ have you ever seen him in Glades County, Florida? A. Yes. Q. And all of this would have been how long ago, roughly, that you saw these people in Glades County, Florida? A. Four years, maybe more or less. I don’t remember. Q. Would it have been around 1985, ‘86? A. It could have, yes. Q. All right. Was it or was it not? A. Yes. Q. Have you ever talked with [defendant] Parrott? A. About what? Q. Well, about anything? A. Yes. We’ve been fishing together on Lake Okeechobee. Q. Okay. Is that the only thing you’ve done with Mr. Parrott? A. I don’t really know how to answer you. Q. Do you know — Let me put it this way. Other things, have you ever been around Mr. Parrott when Mr. Herman Bray and [co-defendant] Roosevelt Bray were also there? A. Yes. Q. Okay. And how about an individual by the name of — a Cuban by the name of Lazaro Fernandez? A. I wouldn’t know him if he was in here. Q. You never dealt with Mr. Fernandez? A. No. Q. Okay. You have dealt with Mr. Parrott? A. Yes. Q. Okay. Do you know where an Indian reservation is in Glades County, Florida? A. Yes, I live about six, maybe seven miles from it. Q. Okay. And, is there — Is one of your brothers or was one of your brothers a caretaker of sort of a ranch right next to the Indian reservation? A. Yes. Q. All right. Which brother was that? A. Richard. Q. Okay. And was he in that capacity back around 1985, ‘86? A. Yes. Q. And, have you see[n] Mr. Parrott and ‘Bree’ and Herman Bray and all them on that property? A. Yes. Q. Okay. Do you recall — Do you know Mr. Tommy Herne? A. Yes. Q. Okay. Who is Mr. Herne? A. Back then he was a chief investigator for the Glades County Sheriffs Department. Q. Okay. And what was your capacity? Were you employed back then? A. Yes. Q. All right. What were you? A. I was a deputy sheriff’s correctional officer in Okeechobee County in 1986. Q. All right. So, you were a law enforcement officer at this time? A. Yes. Q. Okay. And do you know Mr. John King of the Florida Division of Law Enforcement? A. Yes. Q. When did you first meet Mr. King? A. In ‘86, maybe ‘87. I don’t remember for sure. Q. Okay. And, was that about the time that your employment terminated with the sheriff’s department down there? A. Yes, sir. Q. Okay. Do you know Gus ‘Pops’ Ross? A. No. Q. You don’t know him? How about ‘Beeboo’ Wambole? A. No. Q. Okay. Just [defendant] Parrott, [co-defendant] ‘Bree’ and Herman? A. Yes. Q. Okay. Have you ever known or seen a Colombian by the name of Carlos? A. No. Q. Okay. You’ve never seen anybody by that name? A. No, sir. Q. But you knew his name? A. I knew his name, but I never seen him. Q. You’ve heard the name Carlos? A. Yes. Q. Where did you hear that name? A. In the conversations. Q. With [defendant] Parrott? A. Yeah. Q. Okay. Was this about the same time ya’ll were in or about this property that your brother was the overseer? A. Yes. Q. Okay. In the latter part of 1986 did you give a statement to Mr. Tommy Herne, who was the Chief Deputy for what, Glades County? A. Glades County. Q. All right. Now, you knew Mr. Herne for a long time, right? A. Yes. Q. And, I assume — How long had you known Mr. King? A. I just met him in ‘86. Q. Okay. All right. Did you give a statement to them about your involvement with [defendant] Parrott and the — Herman [Bray] and [co-defendant] Roosevelt Bray? A. Yes. Q. And, did you — What was the content of that statement, please sir? A. I’m sorry. On the advice of counsel I decline to answer on the grounds that it may tend to incriminate me and I assert my freedom from self-incrimination as protected by the Constitution of the U.S.A., the State of Florida and the State of Georgia. . . .

“[DEFENSE COUNSEL]: Your Honor, I’d like the jury excused. I’d like to make a motion. THE COURT: Let’s let this develop just a little bit more. [DEFENSE COUNSEL]: Okay. [STATE’S ATTORNEY]: Did you come up here voluntarily, Mr. Platt? A. No. Q. Were you ordered to come to court? A. Yes. Q. And you hired an attorney to — A. To try to stop it. Q. — keep you from coming up here? For what reason do you feel that this statement might incriminate you that you have given? [DEFENSE COUNSEL]: Objection, Your Honor.” The trial court then excused the jury, conducted a hearing to determine the basis of Mr. Platt’s decision to remain silent and informed the State’s attorney that the witness appears to have cause for invoking the Fifth Amendment right against self-incrimination. The State’s attorney responded: “We won’t pursue the matter, Your Honor. . . . We’ve gotten the information we need from this witness.” Defense counsel then moved for a mistrial, arguing that “where the State knows that an individual [is going to] invoke his Fifth Amendment rights in the presence of the jury that it is prejudicial to bring that witness before the jury without having a hearing outside the presence of the jury. . . .” The trial court recognized that “the problems you get into when the privilege is asserted is a limitation that places on the opposite side of a full and thorough cross examination [,]” but found that the State’s attorney did not act in “bad faith” and denied defendant’s motion for mistrial.

The jury was recalled and defense counsel cross-examined Mr. Platt as to the substance of the statement he gave to the Florida law enforcement officers. The trial court then admonished the witness that if he answered any questions regarding the statement that it would constitute a waiver of his right against self-incrimination. Mr. Platt decided not to waive his Fifth Amendment right and did not answer defense counsel’s questions concerning the statement. He only affirmed that the statement he gave the Florida law enforcement officers was not true.

In Lingerfelt v. State, 235 Ga. 139, supra, and Lawrence v. State, 257 Ga. 423, supra, “the trial court permitted the State to call a witness who had notified the court and counsel that he would not answer any question and ask leading questions, predicated on the witness’ prior statements, which suggested the defendant’s guilt of the crimes charged. Under the circumstances of those cases, the procedure whereby the prosecutor was allowed, in effect, to testify for the witness and circumvent meaningful cross-examination as to obvious inferences was soundly condemned. See Lawrence at p. 425 (fn. 3).” Greenwood v. State, 203 Ga. App. 901 (1), 902 (418 SE2d 160).

In the case sub judice, it is obvious that the State’s questioning of Mr. Platt (with full knowledge that the witness intended to invoke the Fifth Amendment) created an unfavorable inference that defendant was involved with Mr. Platt and others in criminal activities in Florida and that the harmful inference went virtually unchallenged because the witness invoked the Fifth Amendment. It is my view that this procedure is essentially the same as the procedures condemned in Lingerfelt and Lawrence and that the trial court therefore erred in denying defendant’s motion for mistrial, i.e., defendant was denied fair access to a witness on cross-examination for purposes of challenging unfavorable inferences projected by the State on direct examination. Greenwood v. State, 203 Ga. App. 901 (1), supra.

Decided December 4, 1992 —

Reconsideration denied December 17, 1992

Hackel & Hackel, Thomas M. Hackel, Harrison, Harrison & Llop, Steven M. Harrison, for appellant.

James L. Wiggins, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Pope, Judge,

dissenting.

I dissent to Division 2 of the majority opinion. The majority finds no reversible error here in part because the witness did answer certain questions prior to invoking his Fifth Amendment privilege and, according to the majority, it was only the answers to those prior questions which were incriminating to the defendant. While it is true that the witness’ answers to some of the questions concerning his relationship with the defendant raised an inference concerning the defendant’s involvement in criminal activities, I believe the most damaging aspect of the witness’ testimony was his acknowledgement that he had given an incriminating statement to Florida authorities and his subsequent refusal to answer questions about the contents of that statement. Thus I think it matters little whether the defendant could have confronted the witness about other aspects of his testimony as the defendant could not confront the witness about the most damaging aspect of his testimony.

I also disagree that defendant invited the error here. The State knew of the witness’ intention not to testify about the incriminating statement, and it was incumbent upon the State, the party calling the witness, to request a hearing at the outset of the testimony, or at a minimum, to request a hearing before the question was asked which the State knew would cause the witness to invoke the privilege.

As I read the majority, reversible error occurs only if the State does exactly what the prosecutor did in Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975). Such a rote application of precedent ignores the underlying rationale in that case and allows the State to circumvent the procedure established pursuant to Lingerfelt and its progeny. In my opinion, defendant’s motion for mistrial should have been granted.

       “ ‘The highly probable test avoids the evils of inadequate or excessive stringency by making affirmance conditional on high probability that error did not affect the judgment. The test compels a judge to go beyond a first glance for affirmance or a fleeting glimpse for reversal. It compels him to exercise his mind in the exercise of his discretion, to go beyond the appearances of the result to an examination of what causal links there may be between error and the judgment. It keeps judicial discretion within the ample bounds of reason. It can greatly improve the net worth of the judicial process as it thus holds down excesses either of affirmance that recklessly dampens assurance of a fair day in court or of reversal that needlessly calls for still another fair day at the expense of litigants who are still awaiting their first day in court.’ Id. at pp. 50-51.” Johnson v. State, 238 Ga. 59, 61, supra.


source: Caselaw Access Project

author: Sognier, Chief Judge. Beasley, Judge, McMurray, Presiding Judge, Cooper, Judge,

license: Public Domain

text:
    A92A1315.
    JONES et al. v. LAMON et al.
    (426 SE2d 657)
   Sognier, Chief Judge.

Bettye Jones and Luther Jones filed suit for medical malpractice and loss of consortium against Clyde Lamon, M.D., and, under the theory of respondeat superior, against Colquitt County Hospital Authority d/b/a Colquitt Regional Medical Center. The trial court granted summary judgment to the hospital on the respondeat superior issue and to both defendants on the basis that the Joneses’ action was barred by the statute of limitation. The Joneses appeal, specifically confining the issue for our consideration to the statute of limitation ruling.

The record reveals that appellant Bettye Jones underwent surgery at appellee hospital in July 1989 and was prescribed the anticoagulant drug, Coumadin, by appellee Lamon. The effect of the drug on Ms. Jones was monitored by prothrombin time tests conducted while she was in the hospital. After her discharge from the hospital on August 15, 1989, Ms. Jones continued taking daily doses of Coumadin as prescribed by Lamon. On August 26, appellants reported to Lamon that Ms. Jones was experiencing the onset of nausea, vomiting, and certain other symptoms. Ms. Jones was admitted to the hospital on August 28, 1989, at which time tests determined that she was suffering from gastrointestinal hemorrhaging, which appellants contend was caused by appellees’ failure to monitor her properly while she was taking Coumadin. Appellants filed suit on August 27, 1991.

Appellants submitted the affidavit of Julian M. Loube, M.D., in which Dr. Loube averred that Ms. Jones’ hemorrhaging resulted from the “inappropriate management of her Coumadin”; that the symptoms Ms. Jones experienced “could reasonably have been interpreted by most lay, medically unsophisticated people to indicate a stomach or bowel upset”; that physicians could not be certain of the underlying diagnosis without the appropriate examinations and laboratory studies conducted on Ms. Jones on August 28, 1989; and that in Dr. Loube’s opinion Ms. Jones “could not have known that she was suffering from , the effects of improperly administered Coumadin until her admission to the hospital on August 28, 1989.”

1. Appellant Bettye Jones (hereinafter appellant) contends that her medical malpractice suit was not time barred under OCGA § 9-3-71 (a) because the limitation period on her claim did not begin to run until August 28, 1989, the date on which she discovered the causal relationship between her injury and appellees’ alleged breach of duty. OCGA § 9-3-71 (a), as amended in 1985, Ga. L. 1985, p. 556, § 1, is applicable here and provides that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”

Appellant, by asserting the limitation period for her medical malpractice claim did not begin to run until the date she discovered the cause of her injury, seeks to have this court engraft onto OCGA § 9-3-71 (a) the “discovery rule” applied to OCGA § 9-3-33, the general tort statute of limitation, by King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (287 SE2d 252) (1981). The “discovery rule” is based on specific language in OCGA § 9-3-33 (Ga. Code Ann. § 3-1004) providing that the limitation period for general torts begins to run from the date “the right of action accrues.” See Miles v. Ashland Chemical Co., 261 Ga. 726, 727 (410 SE2d 290) (1991); King, supra. The Supreme Court has recognized that “there are four points at which a tort cause of action may accrue: [I] [w]hen the defendant breaches his duty; [II] when the plaintiff is first injured; [III] when the plaintiff becomes aware of his injury; or [IV] when the plaintiff discovers the causal relationship between his injury and the defendant’s breach of duty.” (Emphasis supplied.) Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 462 (330 SE2d 344) (1985), overruled in part, Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988) (held, discovery rule in King not applicable to property damage statute of limitation of OCGA § 9-3-30).

It is argued that this court must apply the “discovery rule” of OCGA § 9-3-33 to OCGA § 9-3-71 (a) because when the latter statute was amended in 1985, the legislature was compelled by the Supreme Court’s opinion in Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984) to abandon its attempt to classify medical malpractice claims separate from general tort claims for statute of limitation purposes. Shessel held that the 1976 version of § 9-3-71 (a) was unconstitutional, and OCGA § 9-3-71 (a) was amended in 1985 in order to cure the constitutional deficiency set forth in Shessel. See Quinn v. Stafford, 257 Ga. 608, 610 (4, 5) (362 SE2d 49) (1987). Therefore, to address this argument, we must examine the Supreme Court’s holding in Shessel.

In Shessel the defendant breached a duty owed the plaintiff by negligently performing a sterilization procedure on her. Under the 1976 version of OCGA § 9-3-71, the statute of limitation on the plaintiff’s malpractice claim began to run at the time of the procedure. (Point I in Lumbermen’s Mut. Cas. Co., supra.) However, the plaintiff’s injury was her subsequent pregnancy. Shessel, supra at 57. The Shessel opinion does not reflect whether the point II date of the injury (i.e., the date the plaintiff became pregnant) was the same as the point III date of discovery of the injury (i.e., the date the plaintiff learned she was pregnant), although the court did recognize the distinction between the two. However, because of the nature of the injury, the point III date of the discovery of the injury was identical to the point IV date of the discovery of the cause of the injury. Thus, the Shessel court did not have to distinguish between point III and point IV in its opinion.

Accordingly, when the Shessel court held the 1976 version of OCGA § 9-3-71 to be unconstitutional, the Supreme Court was not focused on the differences among points II, III, and IV, all of which involve the varying times at which the injury affects a plaintiff, because those differences were not in issue. Instead, the Shessel court focused on the difference between a limitation period that commenced on the date of a defendant’s breach of a duty (point I) rather than on the date of an injury to the plaintiff (points II, III, and IV). It was “this difference in the beginning point for calculating the limitation period which [was] the focal point of [the Shessel] appeal,” id. at 57, and constituted the basis for the holding therein that the 1976 version of OCGA § 9-3-71 was unconstitutional because similarly situated parties were not treated alike. Id. at 59.

This analysis of Shessel reveals that the constitutional deficiency in the 1976 version of OCGA § 9-3-71 (a) could be cured by focusing the statute’s “beginning point for calculating the limitation period” on the date of an injury to the plaintiff rather than on the date of the defendant’s breach of a duty. The legislature, by amending OCGA § 9-3-71 (a) to provide that malpractice actions must be brought within two years after the date “on which an injury or death arising from a negligent or wrongful act or omission occurred,” acted in conformity with the holding in Shessel because the “beginning point” is now determined by looking to the consequence of the defendant’s acts on the plaintiff.

Contrary to appellant’s contention, nothing in Shessel compelled the legislature to select the point IV date of discovery of the cause of the injury as the beginning point for calculating the limitation period. Indeed, Shessel contains language intimating the Supreme Court was unwilling to approve setting the beginning point even at the earlier point III date of discovery of the injury. See id. at 57, 58. It is not necessary to over-analyze the language in Shessel, however, given our determination that the legislature, when amending OCGA § 9-3-71 (a) in 1985, was not required by Shessel to enact a redundant statute duplicating the provisions of OCGA § 9-3-33 and thereby abolish all distinction between the medical malpractice and general tort statutes of limitation by providing for identical commencement dates for the limitation periods in each statute.

The plain language in OCGA § 9-3-71 (a) that the statute of limitation in a medical malpractice action begins to run on the date “on which an injury . . . arising from [an act of malpractice] occurred” would seem to support the conclusion that the limitation period commences to run on the date of the injury, i.e., point II. This court in Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), without any analysis of the matter, stated that the date an injury occurs under the statute is point III, “the date the injury is discovered. Shessel v. Stroup, supra.” Id. at 708. However, it is not necessary to resolve that issue here because, pretermitting whether the time limitation commenced running on the very first day appellant went unmonitored (point II), the evidence in the case sub judice establishes uncontrovertedly that appellant was aware of her injury (point III) at least by August 26, the date on which she contacted appellee Lamon because she was and had been experiencing nausea and the other symptoms of the internal hemorrhaging from which she was suffering. Thus, the fact appellant did not know and, according to Dr. Loube’s uncontroverted affidavit, could not have known the cause of her suffering before August 28, does not affect the application of OCGA § 9-3-71 (a) when the evidence establishes that appellant’s injury occurred and had physically manifested itself to her by August 26. Appellant’s subjective belief that her suffering stemmed from a stomach virus or some other cause unrelated to appellees’ alleged negligence does not change the fact that her injury occurred by August 26.

Therefore, because appellant Bettye Jones failed to file suit within two years of August 26, the date on which her injury arising from appellees’ alleged negligent act or omission occurred, OCGA § 9-3-71 (a), her complaint was untimely as a matter of law. Accordingly, the trial court’s grant of summary judgment in favor of appellees as to her claim is affirmed.

2. We agree with appellant Luther Jones that the trial court erred by granting summary judgment to appellee Lamon as to his claim for loss of consortium. No question of fact exists that his loss of consortium claim remains viable because the statute of limitation applicable to his claim, the four year period set forth in OCGA § 9-3-33, has not expired. See Elwell v. Haney, 169 Ga. App. 481, 482 (313 SE2d 499) (1984) (running of limitation for personal injury claim does not bar derivative loss of consortium claim). We note that the alternative basis given by the trial court for its grant of summary judgment in favor of appellee hospital was not challenged on appeal. Hence, that judgment is presumed to be binding and in effect. See generally Jones v. First Nat. Bank of Atlanta, 147 Ga. App. 441 (249 SE2d 154) (1978).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., Carley, P. J., and Andrews, J., concur. Beasley and Johnson, JJ., concur specially. McMurray, P. J., Pope and Cooper, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur with the majority to the extent that the 1985 statutory change may in effect be discovery-of-the-injury rule, at least when occurrence is simultaneous with knowledge of the occurrence. That is the case here, unless the occurrence itself was even before August 26.

The 1985 Act made it two years after the date the injury occurred. That is the same language which the Georgia Supreme Court implied in Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), would be acceptable: “We hold that OCGA § 9-3-71 is a denial of equal protection and therefore unconstitutional as applied to personal injury claims in which injury occurs more than two years after the negligent or wrongful act or omission occurred.” (Emphasis supplied.) Shessel, supra at 59.

Since Shessel equates that event with accrual, there is little difference between OCGA § 9-3-71 (two years from the date on which the injury occurred) and OCGA § 9-3-33 (two years after right of action accrues), except that OCGA § 9-3-71 tailors the general accrued language to more specifically state it as meaning, in medical malpractice, the date the injury occurs.

If there is a discovery-of-the-injury rule in Georgia, it would make no difference in this case whether it is part of OCGA § 9-3-71 or not, because the occurrence was simultaneous with or even earlier than knowledge of the occurrence. The limitation period for filing suit began running no later than August 26.

I am authorized to state that Judge Johnson joins in this special concurrence.

McMurray, Presiding Judge,

dissenting.

In 1976, the General Assembly enacted legislation which classified medical malpractice actions separately from other tort actions for statute of limitation purposes. The 1976 statute provided that: “Except as otherwise provided in this chapter, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred.” Ga. L. 1976, pp. 1363, 1364, § 1. In Allrid v. Emory Univ., 249 Ga. 35, 37 (1a) (285 SE2d 521), the Supreme Court acknowledged this language “to be an extremely harsh limitation in application because it has the effect, in many cases, of cutting off rights before there is any knowledge of injury.” Shortly thereafter, the Supreme Court held that the 1976 statute of limitation violated the Equal Protection Clause in those medical malpractice actions in which the alleged negligence produced no injury until more than two years after such alleged negligence occurred. Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155); Clark v. Singer, 250 Ga. 470 (298 SE2d 484).

In 1985, the 1976 statute of limitation for medical malpractice claims, by then contained in OCGA § 9-3-71, was amended by Georgia Laws 1985, p. 556, § 1. The 1985 amendment added a five-year statute of ultimate repose as paragraph (b) while paragraph (a) inserted in lieu of the 1976 language provides that: “Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful omission occurred.” See Quinn v. Stafford, 257 Ga. 608, 610 (5) (362 SE2d 49). This change in the statutory language was apparently intended to cure the constitutional deficiency noted in such cases as Shessel v. Stroup, 253 Ga. 56, supra, and Clark v. Singer, 250 Ga. 470, supra.

The question as to whether the 1985 amendment also altered the substance of the 1976 law as applied after the Shessel and Clark decisions appears to have been answered by our decision in Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) which, in reference to the 1976 statute, states that: “At the time [plaintiff] Zirkle’s cancer was diagnosed [in May or June 1985], Georgia law permitted a patient to bring a medical malpractice claim within two years from the date of the injury caused by an alleged negligent act. See Shessel v. Stroup, [supra].” As this statement of the construction of the 1976 medical malpractice statute of limitation after the Clark and Shessel decisions is indistinguishable from the language of paragraph (a) of the 1985 amendment which became effective on July 1, 1985, and which is applicable to this case, it is my view that paragraph (a) of the 1985 statute was not a substantive change of the statute of limitation as construed following Clark and Shessel, but was enacted solely to remove the constitutional faults of the 1976 language. The importance of this conclusion is that the decisions in Whitaker, as well as Shessel, may clearly be recognized as controlling authority on the issues present in the present appeal and may not be distinguished as relating only to statutory language which has now been superseded.

As in Whitaker, the case sub judice involves an injury which occurs subsequent to the date of medical treatment or negligence. “When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. Shessel v. Stroup, supra.Whitaker v. Zirkle, 188 Ga. App. 706, 708 (1), supra.

The alleged negligence in the case sub judice is Dr. Lamon’s prescribing Coumadin without patient monitoring. The resulting injury was the adverse reaction to Coumadin. Thus, the statute of limitation commences from the date of discovery of symptoms of an adverse reaction to Coumadin. Discovery of an injury relates to plaintiff Bettye Jones’ actual discovery that an injury has been suffered or where by the exercise of reasonable diligence plaintiff Bettye Jones should have discovered it. Shessel v. Stroup, 253 Ga. 56, 57, fn. 2, supra. In the case sub judice, a question remains for the jury as to when plaintiff Bettye Jones actually discovered or should have discovered her injury. When viewed in the light most favorable to the plaintiffs as the parties opposing the motion for summary judgment, the evidence shows that there was no discovery of the adverse reaction to Coumadin until August 28, 1989, the date of Bettye Jones’ readmission to the hospital. This action having been filed within two years of that date, the superior court erred insofar as its grant of summary judgment was based on a conclusion that plaintiffs’ actions were barred by the statute of limitation. I would hold that the grant of summary judgment in favor of defendant Lamon was reversible error.

The majority opinion devotes considerable effort to the question of when a medical malpractice action accrues without ever reaching a clear conclusion. While the majority advances an hypothesis in favor of the point II date of injury, it acknowledges the holding in Whitaker applying the point III date the injury is discovered. The majority then proceeds to avoid the obvious issue as to which should be applied in the case sub judice by purporting to distinguish Whitaker through its construction of the facts in the case sub judice. While the majority maintains that “the evidence in the case sub judice establishes uncontrovertedly that appellant was aware of her injury (point III) at least by August 26, the date on which she contacted appellee Lamon because she was and had been experiencing nausea and the other symptoms of the internal hemorrhaging from which she was suffering,” this entirely disregards the evidence via expert affidavit noted earlier in the majority opinion that Ms. Jones, like any medically unsophisticated lay person, could reasonably have interpreted the symptoms to indicate a stomach or bowel upset and that physicians could not be certain of the problem without examination and laboratory studies so that it could not have been known that Ms. Jones was suffering from the effects of improperly administered Coumadin until her admission to the hospital on August 28, 1989. In my view, the evidence would not permit an equating of the ambiguous symptoms suffered by Ms. Jones on August 26 with actual or constructive knowledge of the injury she had suffered. Since Ms. Jones had no knowledge of her injury until August 28, application of the holding in Whitaker would require that the period of limitation began to run on that day. Contrary to the majority’s view, I see the Whitaker case, not as abolishing the differences between OCGA §§ 9-3-71 and 9-3-33, but as being the only decision from either of the Georgia appellate courts which was decided under the current version of OCGA § 9-3-71 and directed to the issues on appeal, therefore I would follow this precedent.

I am authorized to state that Judge Pope joins in this dissent.

Cooper, Judge,

dissenting.

The pivotal question in this case is whether the Supreme Court in Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984) held that any difference in treatment between medical malpractice actions and other negligence actions with respect to when the limitation period begins to run was unconstitutional, or whether it simply held that a statute providing that the limitation period for medical malpractice begins to run at the time of the negligent act rather than the time of the injury was unconstitutional. In choosing the latter alternative, the majority has ignored the language as well as the rationale of Shessel. While the time period for bringing a negligence action under the general tort statute of limitation begins to run when the cause of action accrues, the time period for bringing a medical malpractice action under the statute challenged in Shessel began to run on the date the negligence occurred. “It is this difference in the beginning point for calculating the limitation period which is the focal point of this appeal.” (Emphasis supplied.) 253 Ga. at 57. Shessel was decided on equal protection grounds. Its purpose and effect, therefore, was not to establish a minimum level of protection for medical malpractice plaintiffs as the majority suggests, but to establish that there was no legitimate basis for different treatment. Indeed, in the process of comparing how the Shessel plaintiff’s case would be treated under the general tort statute of limitation with how it would be treated under that for medical malpractice actions and concluding that different treatment was impermissible, the Shessel Court noted the possibility that Georgia courts might apply the discovery rule if the case arose in a general tort context, implying that “[i]f Georgia has adopted the discovery rule,” application of the rule would be part of the treatment that must be the same. See id. Because I cannot accept the majority’s narrow interpretation of Shessel, I dissent.

Decided December 4, 1992 —

Reconsideration denied December 17, 1992.

Brimberry, Kaplan, Campbell & Donaldson, Jerry W. Brimberry, for appellants.

Whelchel, Whelchel & Carlton, James C. Whelchel, for appellees.

       The Supreme Court, in a case decided since Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), held that the discovery rule of King, supra “ ‘(is confined) to cases of bodily injury [under OCGA § 9-3-33] which develop only over an extended period of time.’ [Cit.]” Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988). See also Miles v. Ashland Chemical Co., 261 Ga. 726, 727 (410 SE2d 290) (1991).

       “The general tort limitation [in OCGA § 9-3-33] begins only when the action ‘accrues’ and that is no sooner than the date of injury [point II] and perhaps no sooner than the date of discovery [point III]. [Cit.]” Shessel, supra at 58.

       Our determination that the legislature was not compelled to enact OCGA § 9-3-71 with the same commencement date as that in OCGA § 9-3-33 is also supported by the rule of construction which “ ‘forbids that two provisos should be treated as having no more scope or significance than one of them would have if standing alone. . . .’ [Cit.]” Butterworth v. Butterworth, 227 Ga. 301, 304 (180 SE2d 549) (1971).

       Contrary to the dissent’s assertion, nothing in Whitaker stands for the proposition that the distinction between the statutes of limitation in OCGA §§ 9-3-71 and 9-3-33 has been abolished. Whitaker does not address and thus does not constitute controlling authority for the dissent’s interpretation of OCGA § 9-3-71 (a).


author: Sognier, Chief Judge.

text:
    A92A1251.
    STONE et al. v. RADIOLOGY SERVICES, P.A. et al.
    (426 SE2d 663)
   Sognier, Chief Judge.

Horace Stone and Katharine Stone filed a malpractice suit and loss of consortium claim on December 11, 1990 alleging that the defendant physicians and the professional associations that employed them had misdiagnosed Mr. Stone’s condition by failing to recognize that a CAT scan of Mr. Stone’s brain taken in September 1985 “showed a tumor on [Mr. Stone’s] brain.” The trial court granted the defendants’ motions for summary judgment on their statute of limitation defense, and the Stones appeal.

1. The motion made by three appellees to dismiss this appeal for untimely filing of appellants’ enumeration of error and brief, see Court of Appeals Rule 14 (a), is denied because appellants have shown by postmark date that these documents were timely filed. Court of Appeals Rule 4.

2. We find no error in the trial court’s grant of summary judgment in favor of appellee Radiology Services, P.A., and its employee/ physicians named in this suit on their statute of limitation defense. The record establishes that appellant Horace Stone had been experiencing severe headaches for many years, but a May 1983 brain scan had revealed no abnormalities. On September 30, 1985, Mr. Stone went to appellee Radiology Services, at which time a CAT scan of his brain was performed. Two appellees, physician employees of Radiology Services, reviewed the CAT film and signed a radiological report, which set forth that the CAT scan had revealed no areas of abnormal density within Mr. Stone’s brain or abnormal intracranial calcifications, noted the dilatation in certain areas of the brain, which were most pronounced in the fourth ventricle of the brain, and concluded with the diagnostic impression that the described changes were “most consistent with cerebellar atrophy.”

In early December 1988, an MRI scan of Mr. Stone’s brain was taken by Radiology Services. Radiology Services did not have MRI technology available in 1985 and, as one of its employee-physicians deposed, the MRI scan has advantages over other scans because it is more sensitive and reveals slightly different angles to physicians’ view. The MRI scan revealed that Mr. Stone was suffering from an astrocytoma (a type of tumor) in his brain, rather than from changes consistent with cerebellar atrophy. The astrocytoma was surgically removed on December 27, 1988.

Mr. Stone contends summary adjudication was improper because appellees failed to establish that his injury occurred more than two years before December 11, 1990, the date suit was filed. We do not agree. “The critical issue is when did [Mr. Stone’s] injury occur. In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. [Cit.] The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. [Cit.]” Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) (1988). No question of fact remains that the alleged misdiagnosis of appellee Radiology Services and its employees occurred in September 1985.

Citing Whitaker, supra, Mr. Stone argues that his injury was not appellees’ misdiagnoses but rather the increased growth of the tumor in his brain occurring subsequent to their misdiagnoses, and hence his injury did not occur until at least December 27, 1988, when his brain surgery was conducted. In Whitaker, a nevus on the plaintiff’s back was removed and misdiagnosed as non-malignant. The plaintiff suffered no further symptoms of cancer until some seven years after the original misdiagnosis. This court distinguished the general rule set forth above on the basis that although the plaintiff had cancer at the time of the misdiagnosis, her injury was not the cancer itself but the subsequent metastasis of those cancerous cells, which the plaintiff alleged would not have occurred had the cancer been properly diagnosed and treated at the time the nevus was originally biopsied. This court then concluded that “[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. Shessel v. Stroup, [253 Ga. 56 (316 SE2d 155) (1984)].” Id. at 708 (1).

We do not agree with Mr. Stone that the facts in this case are comparable to those in Whitaker, supra. Unlike the plaintiff in Whitaker, whose injury (the metastasis of the melanoma) did not manifest itself until after the misdiagnosis, Mr. Stone was already suffering from the effects of the tumor at the time he was seen by appellees. Thus, the misdiagnosis of Mr. Stone’s condition injured him by allowing his pain and suffering to continue. Because Mr. Stone’s injury was the misdiagnosis itself, rather than an injury occurring subsequent to the misdiagnosis, the language he relies upon in Whitaker is inapplicable. Accordingly, we need not address the question whether any potential conflicts exist between the.language in Whitaker and our recent holding in Jones v. Lamon, 206 Ga. App. 842 (426 SE2d 657) (1992) regarding the commencement date for the statute of limitation in OCGA § 9-3-71 (a).

Therefore, because any injury Mr. Stone suffered as a result of Radiology Services and its employees’ misdiagnosis occurred in September 1985, we find no error in the trial court’s determination that Mr. Stone’s suit filed in December 1990 was barred by the statute of limitation in OCGA § 9-3-71 (a). See generally Jones, supra. Accord Surgery Associates v. Kearby, 199 Ga. App. 716 (405 SE2d 723) (1991). Likewise, Ms. Stone’s loss of consortium claim was barred by the four-year statute of limitation in OCGA § 9-3-33.

Contrary to appellants’ claim in their amended complaint, there was evidence in the record that Mr. Stone was competent to handle the day-to-day affairs of life prior to his 1988 surgery (e.g., maintained a full-time job, drove his own car, suffered only one incident indicating memory problems as a result of the tumor). Accordingly, the trial court did not err by concluding as a matter of law that OCGA § 9-3-90 did not apply to toll the running of the statute of limitation. See Hickey v. Askren, 198 Ga. App. 718, 721-722 (4) (403 SE2d 225) (1991).

Finally, we find no merit in appellants’ contention that summary judgment was improper because questions of fact remain whether the statute of limitation on his claim was tolled by fraud. “One of the elements of fraud is that [appellees] know that the representation is false. There is nothing in the record to reflect that [appellees] knew at any time that the treatment or opinion given by [them] was in error, nor is there any evidence that [appellees] fraudulently withheld such information from the patient.” (Citations and punctuation omitted.) Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) (389 SE2d 339) (1989).

3. As to appellants’ claims against appellee M. W. Kilgore II, M.D., a neurologist, and his employer, appellee M. W. Kilgore II, M.D., P.A. (hereinafter collectively referred to as “Kilgore”), the record establishes that based on a referral by Mr. Stone’s physician, Kilgore first saw Mr. Stone on October 10, 1985. Kilgore reviewed a copy of the radiological report made by Radiology Services, which Kilgore averred “reported no mass or pressure and was essentially negative except for some cerebellar atrophy.” It is uncontroverted that Kilgore did not perform or order the CAT brain scan, that he did not view or examine Mr. Stone’s brain scan itself, and that in the course of his neurological practice Kilgore routinely did not examine the actual brain scans of his patients. Kilgore informed Mr. Stone’s physician in a letter dated October 14, 1985 that the brain scan “reportedly is negative except showing some cerebellar atrophy” and gave as Kilgore’s diagnostic impression “chronic progressive headache and cerebellar atrophy by C[A]T brain scan.”

Kilgore saw Mr. Stone on November 14, 1985 for a reassessment of his continued headache, at which time Kilgore prescribed a pain killer and continued the medication Mr. Stone had already been taking. The record reveals that Kilgore saw Mr. Stone four times after 1985: on February 5, 1986 (at which time Mr. Stone’s headaches had decreased by at least 50 percent); on November 19, 1987 (headaches had returned, so Kilgore prescribed another medication and ordered an electroencephalogram, the results of which Kilgore interpreted as being within normal limits for someone of Mr. Stone’s age and showing no evidence of destructive process, metabolic derangement, or seizure activity); on January 21, 1988 (at which time Kilgore asked Mr. Stone to keep records of his headaches); and on April 28, 1988 (Mr. Stone’s records showed only eight headaches in four months, with only one that was hard to control).

Appellants alleged in their complaint that Kilgore and the other appellees “failed to diagnose and treat” Mr. Stone’s tumor. “ ‘To prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ [Cit.]” (Emphasis in original.) Duenas v. Bence, 174 Ga. App. 80, 82 (2) (329 SE2d 260) (1985). Although appellants assert in their complaint that 1985 was the year in which Kilgore was presented with the opportunity to diagnose the tumor in Mr. Stone’s brain, a liberal construction of their complaint does not demand that appellants’ claims be limited to that year. Rather, construing the pleadings in favor of appellants, see generally Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (4) (399 SE2d 712) (1990), it can be fairly drawn from the complaint and the evidence that appellants’ allegation of negligent failure to diagnose Mr. Stone’s tumor includes the entire course of Kilgore’s treatment of Mr. Stone from October 1985 to April 28, 1988.

Any injury appellants suffered as a result of Kilgore’s alleged failure to diagnose and treat Mr. Stone occurred at the latest by April 28, 1988, the day Mr. Stone was last treated by Kilgore. See Division 2, supra. As noted above, appellants’ complaint was filed December 11, 1990. Since suit was filed within the four-year limitation period in OCGA § 9-3-33, Ms. Stone’s loss of consortium claim was not barred as a matter of law. Accord Deller v. Smith, 250 Ga. 157, 158 (1) (a) (296 SE2d 49) (1982). As to Mr. Stone’s malpractice claim, under the two-year statute of limitation in OCGA § 9-3-71 (a) the complaint would appear to be untimely filed by almost eight months. However, although we agree with Kilgore that the record is utterly devoid of any evidence of fraud on his part so as to toll the statute of limitation pursuant to OCGA § 9-3-96, see Lasoya, supra, we agree with appellants that notwithstanding evidence of Mr. Stone’s competency to handle the day-to-day affairs of life prior to his December 1988 surgery, there is ample evidence in the record to create a question of fact whether after his brain surgery and the subsequent radiation treatment Mr. Stone was legally incompetent because of mental disability so as to toll the statute of limitation pursuant to OCGA §§ 9-3-90; 9-3-91 for a period sufficient to render his complaint timely filed. See generally Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832) (1987).

Decided December 4, 1992 —

Reconsideration denied December 16, 1992

Sutton & Associates, Berrien L. Sutton, Hallman & Associates, Ronald W. Hallman, for appellants.

Oliver, Maner & Gray, I. Gregory Hodges, Patricia C. Tanzer, Saalfield, Catlin, Coulson & Etheridge, Harold H. Catlin, for appellees.

Therefore, the trial court erred by granting summary judgment to Kilgore on his statute of limitation defense. See id. at 107.

Judgment affirmed in part and reversed in part.

McMurray, P. J., concurs. Cooper, J., concurs in the judgment only.

       Although the expert affidavit attached to appellants’ complaint set forth only the alleged negligent acts of appellees in 1985, that affidavit does not restrict appellants’ claims to that specific time. Plaintiffs need not set forth an exhaustive list of the alleged negligent acts to comply with OCGA § 9-11-9.1 (a), which requires only that the affidavit “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.)


author: Andrews, Judge.

text:
    A92A1329.
    KAMMIN v. O’NEAL.
    (426 SE2d 633)
   Andrews, Judge.

Mrs. Kammin appeals the judgment entered on the jury’s verdict for the defendant O’Neal on Mrs. Kammin’s claim for injuries resulting from an automobile accident between cars driven by Ms. O’Neal and Mr. Kammin.

Viewed in favor of the verdict, the evidence was that Ms. O’Neal, going south on Highway 87 in her Pontiac Fiero, approached its intersection with Highway 18. Mr. Kammin, driving a LeMans and going west on Highway 18, had stopped at the stop sign at the intersection. There was also a flashing red light on his side of the intersection. Ms. O’Neal had no stop sign, but on her side of the intersection, the light was flashing yellow. Because her approach was downhill, Ms. O’Neal, who saw the LeMans stopped at the stop sign, applied her brakes and slowed as she went downhill. As she approached the intersection where the road flattened, she released the brake but was still going 55 mph or less as she entered the intersection. Mr. Kammin, with his wife napping in the front passenger seat, testified that he stopped, looked to his right (the direction from which Ms. O’Neal approached), looked to his left, and then pulled into the intersection where he was hit. The impact was on the passenger door and occurred in the middle of Ms. O’Neal’s lane of travel. Although one of plaintiffs lay witnesses, who was at a convenience store on Highway 18, opined that the Fiero was going 80 mph, the police officer who investigated the crash found nothing to indicate that the Fiero was exceeding the speed limit.

1. Plaintiff’s first five enumerations deal with the court’s failure to give five of her requested jury charges and will be considered together.

The five charges dealt with proper lookout ahead; duty to anticipate trafile ahead; no right to assume road is clear; the 30 mph residential district speed limit; and the definition of such a district. Timely objection was made to the failure to so charge.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. [Cit.]” Me-doc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983); see Georgia Kraft Co. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 585 (317 SE2d 602) (1984).

There was no evidence that indicated that O’Neal failed to keep a proper lookout. She saw Mr. Kammin sitting at the stop sign and as she headed into the intersection it was clear. Finally, the intersection, as reflected in the photographs in evidence, was wooded on three sides with no residences. There was a gas station/grocery, one house and a trailer park behind the grocery. The charges requested by Kammin were not supported by the evidence and the failure to give them was not error. The court’s charge fully covered negligence, proximate cause, last clear chance, and other applicable principles.

2. Kammin’s enumerations 7 and 8 object to the court’s giving of two charges. The first was that “[i]f you find that the injuries the plaintiff sustained were not proximately caused by the acts of the defendant, then and in that event, there can be no recovery on the part of the plaintiff against the defendant.” The second was that “[i]f you find that the plaintiff is entitled to recover under the instructions given to you, she would only be entitled to recover the damages directly and proximately resulting from the negligence of the defendant. In this connection, the burden is upon the plaintiff to establish by a preponderance of evidence just which of the damages or injuries or ailments of the plaintiff resulted from the negligence if any of the defendant.”

The objection voiced at trial was to the effect that the charges seemed to negate the. concept of there being joint proximate cause. Reading the entire charge, however, reveals that the charge fully covered the concepts of proximate cause, joint proximate cause, and the fact that the jury was required to find that the negligence of the defendant, if any, “was the proximate cause or a contributing proximate cause of plaintiff’s injuries.”

Examining the charges in toto, we find there exists no fair risk the jury was misled by the contested charges. Deese v. Carroll City County Hosp., 203 Ga. App. 148 (416 SE2d 127) (1992).

3. The ninth enumeration contests the overruling of Kammin’s motion for new trial addressed to the “general grounds.” There was no error in finding that the jury’s verdict was supported by sufficient evidence.

4. Finally, in her sixth enumeration, Kammin contends that the court’s refusal to allow her to impeach O’Neal with a copy of the accusation and her guilty plea to possession of less than an ounce of marijuana was error, because such a charge is one involving “moral turpitude.”

“ ‘[Mjoral turpitude’ has been ‘said to be restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind.’ Lewis v. State, [243 Ga. 443] at 444 [(254 SE2d 830) (1979)]. We have also noted that the term seems equivalent in this state to infamy, and would encompass all felonies. Id. at 445.” Hall v. Hall, 261 Ga. 188 (402 SE2d 726) (1991) (misdemeanor conviction of DUI not a crime of moral turpitude).

“Since possession of [marijuana] necessarily means that the possessor obtained the drug or received it from someone, and that he or she did so prompted by the desire to have it for some reason (such as to use or sell or give to another), it follows that the possessor is an integral and obviously essential link in the chain of drug trafficking, a scourge of mankind. The possessor, a contributor to such activity, violates ‘man’s natural duty to man.’ Lewis, supra at 447.” Pender v. Witcher, 194 Ga. App. 72, 75 (389 SE2d 560) (1989) (special concurrence, Beasley, J.), rev’d sub nom. Witcher v. Pender, 260 Ga. 248 (392 SE2d 6) (1990), on the ground that first offender treatment of felony possession of cocaine may not be used for impeachment). See also Polk v. State, 202 Ga. App. 738, 739 (2) (415 SE2d 506) (1992) (misdemeanor conviction of simple assault is not crime of moral turpitude); Carruth v. Brown, 202 Ga. App. 656 (415 SE2d 470) (1992) (misdemeanor criminal issuance of bad checks is crime of moral turpitude); Hall v. State, 196 Ga. App. 523, 527 (6) (396 SE2d 271) (1990) (felony possession of marijuana is a crime of moral turpitude).

Decided December 3, 1992 —

Reconsideration denied December 17, 1992

Dozier, Akin, Lee & Graham, L. Zack Dozier, Jr., for appellant.

Martin, Snow, Grant & Napier, Cubbedge Snow III, for appellee.

Because credibility was a crucial issue in the trial, the error cannot be said to be harmless.

Judgment reversed.

Birdsong, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Cooper, Judge:

text:
    A92A1339, A92A1340.
    LIBERTY MUTUAL INSURANCE COMPANY v. DEHART et al.; and vice versa.
    (426 SE2d 592)
   Cooper, Judge:

These cross-appeals are before us on interlocutory appeal from the trial court’s denial of cross-motions for summary judgment. For convenience, we refer to the parties by their status in the first appeal filed.

Appellee’s son, a citizen of Utah, was seriously injured in North Carolina when a vehicle in which he was a passenger collided with a tractor-trailer rig owned by' a motor carrier allegedly insured by appellant. The motor carrier owning the rig and employing its driver was a Georgia corporation, and appellees alleged that the accident in North Carolina was caused in part by acts of negligence occurring in Georgia. At the time of the accident the motor carrier’s insurance policy with appellant had expired, and the motor carrier had a policy with another insurance company. However, appellant had filed a form with the Georgia Public Service Commission (GPSC) notifying GPSC that appellant was insuring the motor carrier when the earlier policy was in effect and had not filed another form to notify GPSC when its coverage of the motor carrier was cancelled. Appellees sued the driver, the motor carrier, the insurance company with which the motor carrier had an insurance policy at the time of the accident and appellant. Appellant moved for summary judgment, appellees responded with their own motion for partial summary judgment on the issue of coverage, and both motions were denied.

1. In Case No. A92A1339, appellant first contends that the trial court erred in denying its motion for summary judgment because OCGA § 46-7-58 (e), the statute on which appellees’ cause of action against appellant is premised, does not apply to accidents occurring outside the State of Georgia. All motor carriers operating in the State of Georgia must carry liability insurance or an appropriate substitute, OCGA § 46-7-58 (a), and “[i]t shall be permissible ... for any person having a cause of action arising ... in tort or contract... to join the motor carrier and the insurance carrier in the same action . . . ,” OCGA § 46-7-58 (e). Although OCGA § 46-7-58 gives an injured party a direct cause of action against the motor carrier’s insurer, this court has interpreted the statute to provide that direct cause of action only where the accident causing the injury occurred inside the State of Georgia. National Union Fire Ins. Co. v. Marty, 197 Ga. App. 642 (399 SE2d 260) (1990). We agree with appellant that Marty controls this case. Appellees attempt to distinguish Marty on the grounds that they have alleged in this case that, although the accident occurred in North Carolina, it was caused in part by acts of negligence on the part of the motor carrier occurring in Georgia. However, this distinction is not relevant to an interpretation of OCGA § 46-7-58 because it does not address the primary purpose of that statute, which is compensation rather than prevention of negligence. “ ‘The primary purpose of requiring a bond, policy of insurance, or other security as a condition to the operation of public service motor vehicles for hire is for the protection of the public, by assuring those who are injured, in person or property, through the negligent operation of such vehicles, compensation for the injuries or damages sustained.’ [Cit.]” (Emphasis supplied.) Spicer v. American Home Assur. Co., 292 FSupp. 27, 30-31 (N.D. Ga. 1967), aff’d 402 F2d 988 (5th Cir. 1968). Moreover, the subsection giving plaintiffs a direct cause of action against the insurer and permitting joinder of the motor carrier and insurer in one action “enables injured persons to recover compensation more efficiently and quickly and encourages insurers to resolve legitimate claims by settlement.” Grissom v. Gleason, 262 Ga. 374, 378 (418 SE2d 27) (1992). It is an actionable injury, not a negligent act or omission, which is the condition precedent for a direct action against the insurer under this statute. Great American Indem. Co. v. Vickers, 183 Ga. 233 (188 SE 24) (1936). Thus, even if underlying acts of negligence occur in Georgia, the purposes of the statute and the State’s interest in ensuring and expediting compensation of injured parties are not implicated where the accident does not occur in the State. As noted in Marty, construing this subsection to apply to out-of-state accidents could raise federal preemption or burden-on-interstate-commerce concerns: “ ‘It will not be assumed . . . that the (legislature of this State) attempted to enact legislation having an extraterritorial effect.’ [Cit.]” Marty, supra at 644.

Appellees argue that limiting the applicability of OCGA § 46-7-58 (e) to accidents occurring within the State is inconsistent with a rule promulgated by the GPSC, the commission charged with implementing and enforcing this chapter, which states: “No motor carrier . . , shall engage in intra-state or interstate or foreign commerce . . . unless and until there shall have been filed with and approved by the commission a . . . policy of insurance . . . conditioned to pay . . . any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance, or use of motor vehicles .under such certificate or permit, or for loss or damage to property of others, occurring within the boundaries of the State of Georgia. . . .” (Emphasis supplied.) Rule of GPSC 1-8-1-.01. According to appellees, the words “occurring within the boundaries of the State of Georgia” modify “negligent operation, maintenance, or use of motor vehicles,” so the rule covers situations like this one where a plaintiff alleges that an out-of-state accident was caused in part by in-state negligent acts. Appellees’ suggested interpretation of the rule ignores the presence of the intervening words “or for loss or damage to property.” Because these words, which immediately precede the modifying language “occurring within the State of Georgia,” are structurally and functionally parallel to the words “for bodily injuries to or the death of any person,” it is more logical to conclude that “occurring within the State of Georgia” modifies the injuries, loss or damage rather than the negligent operation, maintenance or use of the motor vehicles. This conclusion is consistent with our interpretation of the statute in Marty as described above.

We are also not persuaded by appellees’ contention that appellant waived its right to challenge appellees’ reliance on OCGA § 46-7-58 (e) by failing to raise it as a plea in abatement in a motion to dismiss or in its answer. As Marty demonstrates, the applicability of this statutory provision is a question that goes to the merits of appellees’ cause of action against appellant and is therefore a proper subject for a summary judgment motion. See also Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987) (OCGA § 46-7-12 and identical provisions of § 46-7-58 do not simply provide for exception to general rule against joinder of insurer but actually provide basis for independent cause of action against insurer). Accordingly, the trial court erred in denying appellant’s motion for summary judgment.

2. In light of our disposition of appellant’s first enumeration of error in Division 1, we need not address appellant’s second argument that its coverage of the motor carrier was effectively cancelled at the time of the accident.

3. In Case No. A92A1340, appellees argue that their motion for partial summary judgment should have been granted because OCGA § 46-7-12 (e) does apply to give them a cause of action against appellant and appellant’s coverage of the motor carrier was still in effect at the time of the accident as a matter of law. Because we concluded in Division 1 that OCGA § 46-7-12 (e) does not apply and that appellant’s motion for summary judgment should have been granted, denial of appellees’ motion for partial summary judgment was proper.

Decided November 23, 1992 —

Reconsideration denied December 17, 1992.

Carter & Ansley, Ben Kingree III, A. Louise Tanner, for appellant.

Winburn, Lewis & Barrow, Gene M. Winburn, John J. Barrow, for appellees.

Judgment in Case No. A92A1339 reversed. Judgment in Case No. A92A1340 affirmed.

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


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1417.
    ANNISON v. THE STATE.
    (427 SE2d 5)
   Birdsong, Presiding Judge.

Paul Annison appeals convictions for sexual molestation and aggravated sodomy of his stepdaughter. He enumerates various errors, primarily concerning evidentiary rulings by the trial court concerning similar transaction evidence. Held:

1. Reviewing the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact- could have found Annison guilty of the crimes for which he was convicted beyond a reasonable . doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Annison contends the trial court erred by allowing similar transaction evidence that he molested the victim, his stepdaughter, in another county where they earlier lived on dates outside the statute of limitation because the State did not comply with the requirements of Uniform Superior Court Rule 31 for pretrial notice and pretrial hearing. Although the record shows that no Rule 31.1 and 31.3 (A) notice was given ten days prior to trial and no Rule 31.3 (B) hearing was held prior to the date scheduled for trial, the record also shows that Annison did not object to admission of this evidence on the basis of a violation of Rule 31 because of lack of timely notice or a hearing. Therefore, since this objection is raised on appeal for the first time, we will not consider this issue. Cohn v. State, 186 Ga. App. 816 (368 SE2d 572).

In any event, the record shows also that a hearing was held prior to the presentation of this evidence during which admissibility of the evidence was considered, in part, under the standards of admissibility for similar transaction evidence. Additionally, the record also shows that prior to this hearing Annison was aware of these allegations because he sought to use the retraction of certain allegations in his defense. Moreover, although Annison, of course, denied the allegations, there was no question of either identity or similarity because all the allegations were made by the same victim, Annison’s stepdaughter, and concerned a continuous course of conduct. Therefore, we conclude the hearing conducted was sufficient under Rodgers v. State, 261 Ga. 33, 36 (401 SE2d 735).

Additionally, although Annison sought a continuance on other grounds, he did not seek a continuance because of the State’s failure to comply with Rule 31.3 even after being made aware of the State’s intention to present this evidence. Considering all of these factors, we conclude that if any failure to comply with Uniform Superior Court Rule 31 was error, the error was harmless beyond a reasonable doubt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869); Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38).

Annison also contends that the trial court erred by allowing the State to present evidence about threats he made against the victim, her brothers, and her mother because of the State’s failure to comply with Rule 31. There was no error. This evidence was not presented as similar transaction evidence and would not qualify for admission on that theory. Instead, the evidence was introduced to show or explain the reason the victim did not come forward with her allegations or to explain why she recanted her earlier allegations. Thus, notice under Uniform Superior Court Rule 31 was not required, and this evidence was admissible even if it incidentally put Annison’s character in issue. Richie v. State, 258 Ga. 361, 362 (369 SE2d 740).

3. We find no error in the admission in evidence of the tape of the victim’s interview with the police or the testimony of witnesses concerning the victim’s statements to them about Annison’s sexual activities with her. Since this evidence was consistent with the victim’s testimony at trial, her credibility had been questioned, and she was available for and was cross-examined, it is admissible as substantive evidence under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661).

4. Annison also contends the trial court erred by allowing a police officer to answer a question about medical evidence. The purported medical evidence, however, concerned whether in the officer’s experience investigating molestation cases it was common for the medical doctors to find physical evidence of sexual molestation. As this question did not call for the witness to express a medical opinion, there was no error. Further, whether to allow the officer to respond was a matter committed to the discretion of the trial court; under the circumstances, we find no abuse of discretion. Palmer v. State, supra at 898-899.

5. Annison also contends the trial court erred by denying his motion for a continuance. This enumeration of error is based upon information provided to the defense after an in camera inspection of materials in the prosecution’s file in response to Annison’s earlier filed Brady motion. Whether to grant a continuance is a matter committed to the sound legal discretion of the trial court (OCGA § 17-8-22), and the trial court’s decision will not be disturbed on appeal unless clearly abused. Babb v. State, 157 Ga. App. 757 (278 SE2d 495). We find no abuse of discretion in this case. Moreover, Annison was required to show that he exercised due diligence (OCGA § 17-8-20), and since the information he received as a result of the in camera inspection of the State’s file was either known to the defense generally or could have been obtained independently by the defense, Annison has not shown due diligence. Thus, there was no error.

6. Annison further contends the trial court erred by charging the jury that a witness’ testimony, stating she heard the victim say she made up allegations about Annison sexually molesting her because she wanted to break up her mother’s marriage to Annison, was allowed under the verbal acts’ exception to the hearsay rule and the evidence was not substantive evidence. Although Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) permits the introduction of inconsistent statements as substantive evidence, Gibbóns did not remove the requirement that Annison must lay a proper foundation for admission of the purportedly inconsistent statement. As Annison failed to lay the required foundation (Hawkins v. State, 195 Ga. App. 739, 740 (395 SE2d 251)), the trial court did not err.

7. Annison also contends the prosecution impermissibly commented upon his right to remain silent by asking a police officer whether he attempted to interview Annison, and that the trial court erred by denying his motion for a mistrial. The record shows that after the trial court denied his motion for a mistrial on this issue Annison then requested and was granted a limiting instruction on this issue, and did not renew the motion for a mistrial. Under these circumstances, any issue concerning the denial of the motion for mistrial was waived. Jarrells v. State, 258 Ga. 833, 836 (375 SE2d 842).

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Carley, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I concur in Division 1 but not in Division 2 and consequently, I respectfully dissent. Since the conclusion I reach is that a new trial must be given, I do not reach the other enumerations of error.

Decided November 12, 1992 —

Reconsideration denied December 17, 1992

Jimmy D. Berry, Mitchell D. Durham, for appellant.

David McDade, District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

Defendant enumerates as error the failure to abide by USCR 31.3. Defendant did object at trial to the admissibility of a number of incidents which were outside the scope of the indictment because he had no notice from the State that they would be introduced as similar occurrences. The indictment expressly encompassed the entire statute of limitation for the three acts charged and of course was limited to acts within one county. The incidents objected to were beyond this scope.

Uniform Superior Court Rule 31.3 mandates specifically detailed prior notice of the State’s intention to seek the admission of transactions which are not covered in the indictment. The surprise which the rule seeks to avoid was thus thrust upon the defendant. He is entitled to a new trial, Story v. State, 196 Ga. App. 590 (396 SE2d 547) (1990), because the State has not shown that its violation of the rule did not harm defendant. See Baker v. State, 193 Ga. App. 498, 500 (2b, 3) (388 SE2d 402) (1989). Cf. Todd v. State, 189 Ga. App. 538 (1) (376 SE2d 917) (1988).