text:
    76961.
    TROUT v. HARRISON et al.
    (372 SE2d 651)
   Banke, Presiding Judge.

Trout brought this medical malpractice action against Dr. Harrison and the professional corporation which employed him to recover for injuries she allegedly sustained due to complications from gynecological surgery. This appeal follows a jury verdict in the defendants’ favor.

Dr. Harrison performed an elective bipolar electro-coagulation procedure, more commonly known as tubal ligation, on the plaintiff, who subsequently required additional surgery to correct a perforated intestine. All but one of plaintiff’s enumerations of error on appeal are directed to the court’s charge to the jury. Held:

1. The appellant contends that the trial court erred in failing to give a requested jury instruction to the effect that she was required only to prove that Dr. Harrison was negligent in one of the ways alleged, not all of them. The jury was instructed that “if you find from the evidence that the proximate cause of injuries to the plaintiff, if any, was the result of any negligence of the defendants . . . then, in such event, you should return a verdict for the plaintiff. On the other hand, if you find that the defendant was not negligent in any particular asserted by the plaintiff, than you would find for the defendant.” (Emphasis supplied.) The principle at issue was thus included in the court’s instructions, with the result that the court did not err in failing to charge the requested language. See Leverett v. Flint Fuel, 183 Ga. App. 75, 80 (357 SE2d 882) (1987).

2. The appellant contends that the trial court erred in failing to give her requested charge to the effect that medical malpractice may consist of a breach of a physician’s duty to diagnose. The complaint alleged that Dr. Harrison had negligently perforated the appellant’s colon in performing the laporoscopic tubal ligation procedure, that he had negligently failed to diagnose and treat her for the complications resulting from the surgery, and that he had fraudulently attempted to conceal his alleged negligence. The trial court instructed the jury that they were not to consider the allegations of negligence with regard to the performance of the tubal ligation itself, because summary judgment had already been entered in the appellee’s favor with respect to that allegation. However, the court then instructed the jury that they were to “consider the case with respect to the other allegations of negligence which the plaintiff asserts against the defendant; that is, the allegations dealing with failure to diagnose, treat, and care for the plaintiff, and the other allegations that the plaintiff has asserted. . . .” The charge as a whole was correct, and the requested legal principle was adequately covered therein. See generally Ga. Farm &c. Ins. Co. v. Burton, 176 Ga. App. 729 (2) (337 SE2d 455) (1985); Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633 (5) (224 SE2d 739) (1976). Consequently, this enumeration of error is without merit.

3. The appellant enumerates as error the trial court’s failure to give the following charge: “[T]he testimony of a party who offers himself as a witness in his own behalf if (sic) construed most strongly against him when it is self-contradictory, vague or equivocal and he is not entitled to a finding in his favor if that version of his testimony, the most unfavorable to him, shows the verdict should be against him.”

Pretermitting whether Dr. Harrison’s trial testimony was contradictory or equivocal or whether it conflicted with testimony he had given on previous occasions (see Slaton Machine Sales v. Owens-Illinois, 138 Ga. App. 80, 82 (3) (225 SE2d 473) (1976)), the requested charge had no applicability to the present case. The jury was provided with competent expert medical testimony, other than Dr. Harrison’s, to the effect that no malpractice had occurred; and it has been held that the requested charge is inapplicable “unless there is no testimony — other than the party’s own vague, contradictory and equivocal testimony — upon which a verdict in his favor might be returned. [Cits.]” Weathers v. Cowan, 176 Ga. App. 19, 21 (335 SE2d 392) (1985). Accord Maurer v. Chyatte, 173 Ga. App. 343 (3) (326 SE2d 543) (1985).

4. The appellant contends that the trial court erred in its instructions given to the jury in response to two questions posed by them during their deliberations. When asked by the trial court whether there were exceptions to any portion of these instructions, counsel for the appellant stated an objection with reference only to the court’s response to the second question. The adequacy of the instructions given in response to the first question consequently is not before us. See generally OCGA § 5-5-24 (a); Morris v. DeLong, 183 Ga. App. 124 (2) (358 SE2d 285) (1987).

The jury’s second question concerned the law regarding proximate cause. The court responded by repeating its original instructions on proximate cause and then asking the jurors whether the recharge had answered their question and whether they required additional clarification. No such need for further instruction was indicated. The appellant nevertheless asserts that the recharge was incomplete because it did not include instructions on the issue of contributing negligence.

“[W]hen a jury requests further instructions on a particular point, the court in its discretion may recharge in full or only on the point requested.” Brown v. City of Fitzgerald, 177 Ga. App. 859, 861 (341 SE2d 476) (1986). The trial court’s refusal to recharge the jury on the issue of contributory negligence clearly establishes no ground for reversal under the circumstances.

5. Finally, the appellant contends that the court erred in failing to enforce a pre-trial ruling on a motion in limine, prohibiting the introduction of certain evidence concerning Dr. Harrison’s professional reputation. During his closing argument, Dr. Harrison’s counsel argued that his client’s “reputation is at stake,” and that “he’s a good doctor.” The appellant interposed an objection at this time, which was sustained by the trial court. In addition, the court rebuked Dr. Harrison’s counsel and instructed the jury to disregard the comments. See generally OCGA § 9-10-185. The appellant acquiesced in the trial court’s ruling, requesting no further curative action. Consequently, this enumeration of error presents nothing for review. See Seaboard Coast Line R. Co. v. Wallace, 227 Ga. 363 (180 SE2d 743) (1971).

Decided September 6, 1988.

Warren N. Coppedge, Jr., Terry J. Miller, for appellant.

John T. Minor III, John P. Neal III, for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76975.
    WHIPPER v. McLENDON MOVERS, INC.
    (372 SE2d 820)
   Banke, Presiding Judge.

The appellant leased a self-storage compartment from the appellee for the storage of certain personal belongings. The compartment was identified in the lease by number and size, without reference to the type or value of the items intended to be stored therein. During the term of the lease, the water pipes servicing the automatic sprinkler system in the warehouse where the storage compartment was located burst due to cold weather, resulting in damage to the appellant’s property. The appellant brought the present action to recover for that damage; and the appellee moved for summary judgment based, in part, on the following typewritten provisions contained in the lease agreement: “All personal property brought onto the premises by lessee . . . shall be at the risk of lessee, and lessor shall not be liable for any loss or damages for any reason whatsoever to said property. It shall be the responsibility of lessee to adequately insure any property brought onto the premises, and lessor shall have no duty whatsoever to carry any insurance on property brought onto the premises by lessee.” The trial court granted the appellee’s motion for summary judgment, and this appeal followed. Held:

1. “ ‘It has been recognized by numerous authorities that where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.’ (Cits.)” Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (262 SE2d 794) (1982). Accord Pettus v. APC, Inc., 162 Ga. App. 804 (293 SE2d 65) (1982). In reliance upon these authorities, we hold that the trial court was correct in granting the appellee’s motion for summary judgment.

2. Since this was not a contract for “the use or rental of real property as a dwelling place,” the insurance provision cannot be considered violative of OCGA § 44-7-2 (b) (2), which voids any attempt in a residential lease to insulate the landlord from his statutory liability “for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” OCGA § 44-7-14. Compare Schuster v. Plaza Pac. Equities, 588 FSupp. 61, 64-5 (N.D. Ga. 1984).

3. We reject the appellant’s contention that her contractual undertaking to maintain insurance coverage can be disregarded due to her relative lack of bargaining strength viz-a-viz the appellee. The appellant has not alleged that she was induced to accept the provision by misrepresentation, mistake, duress, or undue influence; nor can the provision be considered one of adhesion, no reason having been asserted why the appellant would not have been free to attempt either to negotiate a modification of the insurance requirement (in return, presumably, for an increased rental fee) or to make other arrangements for the storage of her property. Accord Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 369-370 (203 SE2d 587) (1973). Compare Watson v. Waffle House, 253 Ga. 671 (2) (324 SE2d 175) (1985) (applying strict standard of reasonableness to non-competition covenant contained in employment contract); Smith v. Hosp. Auth. of Walker &c. Counties, 160 Ga. App. 387, 389 (287 SE2d 99) (1981) (holding unenforceable a release given to a hospital by a blood donor prior to donating blood).

We similarly reject the appellant’s contention that the contractual provision in question can be disregarded as violative of a general public policy favoring consumers over merchants in business transactions. While it is true that the General Assembly has demonstrated a concern for consumer protection through such statutory enactments as the Retail Installment and Home Sales Solicitation Act (OCGA § 10-1-1 et seq.), the Motor Vehicle Sales Finance Act (OCGA § 10-1-30 et seq.), and the Industrial Loan Act (OCGA § 7-3-1 et seq.), the existence of such legislation does not authorize us to impose, by judicial fiat, analogous regulatory restrictions on the self-storage industry.

Generally speaking, “[o]ne may ‘not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.’ 17 CJS 944, § 168.” Tidwell v. Critz, 248 Ga. 201, 204 (282 SE2d 104) (1981). In the absence of any statutory prohibition against the inclusion of a contractual provision such as the one in question in a self-storage lease, we cannot refuse to enforce it on public policy grounds. Compare Ellerman v. Atlanta American &c. Corp., 126 Ga. App. 194 (2) (191 SE2d 295) (1972) (holding that an innkeeper is precluded by former Code Ann. § 52-111 [currently OCGA §§ 43-21-11; 43-21-12] from attempting to limit by contract liability for loss or damage to bailed property resulting from his own negligence).

Decided September 6, 1988.

J. Phillip Bond, Paul E. Kauffmann, Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.

John R. Francisco, Charles L. Ruffin, for appellee.

4. Having determined that the appellee was entitled to summary judgment on the basis of the insurance provision, we do not reach the issue of whether the purported disclaimer of liability for loss or damage occurring “for any reason whatsoever” to personal property stored on the premises was violative of OCGA § 13-8-2 (b), which provides, in pertinent part, that “[a] covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement relative to the . . . maintenance of a building, . . . purporting to indemnify or hold harmless the promisee against liability for . . . damages to property caused by or resulting from the sole negligence of the promisee ... is against public policy and is void and unenforceable. . . .” See generally Country Club Apts. v. Scott, 246 Ga. 443 (271 SE2d 841) (1980); Burson v. Copeland, 160 Ga. App. 481 (2) (287 SE2d 386) (1981).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    76979.
    MOORE et al. v. HARRIS et al.
    (372 SE2d 654)
   Deen, Presiding Judge.

In early June 1985, Ivan Moore, on behalf of all the appellants, began negotiations for the purchase of a paving company. On July 12, 1985, Moore met with the sellers and David Harris, an attorney who represented the sellers, to prepare a contract for the sale and purchase of the paving company’s assets. The parties reached no agreement at this meeting, but did so during the following weekend.

The parties again met with Harris on July 15, 1985, at which time Harris informed Moore that he represented only the sellers in the transaction. Moore understood Harris’s representative position, and indicated that the appellants had an attorney in Iowa who could protect their interests.

Prior to a third meeting on July 17,1985, Harris was informed by an accountant that the sellers would suffer adverse tax consequences if the deal was structured as an asset sede rather than a stock sale. Harris related this information at the July 17 meeting. It is disputed whether or not Harris also indicated that the purchasers would not sustain any adverse tax consequences by restructuring the sale as a stock purchase.

Because the parties wanted to proceed immediately with the sale, an addendum to the contract was prepared. This addendum provided that “[i]n order to accomplish the most favorable tax treatment for the seller and lessors, it is understood between the parties hereto that this transaction may evolve into a purchase of the outstanding shares of stock of the seller corporation as opposed to the sale of assets as contemplated by this agreement.” The addendum also provided that the purchasers’ agreement to change the form of the transaction was contingent upon their tax consequences not being substantially different from those they would incur with an assets purchase.

On August 1, 1985, the parties executed a new sales contract, which was designated as a stock purchase rather than a sale of assets. The appellants did not seek any tax advice from any other attorney or accountant regarding the tax consequences of purchasing the stock of the paving company. This final sales contract contained an acknowledgment which provided that “[t]he parties have consulted with, or had ample opportunity to consult with, their respective accountants regarding the tax implications of this transaction and none of the parties hereto has relied upon or received any tax advice from either Harris & Lister, P. C. or David O. Harris, individually. The parties hereto further acknowledge and agree that the law firm of Harris & Lister, P. C. was retained by and did in fact represent the seller in this transaction and that Harris & Lister, P. C. did not nor does not represent the purchaser in this transaction. . .”

Upon subsequently discovering that changing from asset purchase to stock purchase resulted in an additional tax liability in excess of $200,000, the appellant purchasers commenced this legal malpractice action against Harris, Harris’s partner, and their law firm. The trial court granted summary judgment for the defendants, and this appeal followed. Held:

Tt is generally held that an attorney-client relationship must be demonstrated before a plaintiff may recover in a legal malpractice suit. . . . This is essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence. . . .’ Accordingly, the threshold question in the case sub judice is whether or not there was an attorney-client relationship” between the appellants and Harris. Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (355 SE2d 453) (1987). In the instant case, it was uncontroverted that Harris made it clear to the appellants that he represented only the sellers, and that the appellant Moore, who handled the negotiations for the appellants, understood that fact. The evidence demanded a finding that no attorney-client relationship existed, at least in the classic sense of the term. See Carmichael v. Barham, Bennett &c., 187 Ga. App. 494, (370 SE2d 639) (1988).

Decided September 6, 1988.

Christopher G. Knighton, for appellants.

T. Ryan Mock, Jr., for appellees.

Relying upon Simmerson v. Blanks, 149 Ga. App. 478, 479 (254 SE2d 716) (1979), the appellants also contend that Harris became their voluntary agent by rendering tax advice. In Simmerson this court applied the rule of voluntary agency as stated in Restatement 2d Agency § 378 (1958): “One who, by a gratuitous promise or other conduct which he should realize will cause another reasonably to rely upon the performance of definite acts of service by him as the other’s agent, causes the other to refrain from having such acts done by other available means is subject to a duty to use care to perform such service, or, while other means are available, to give notice that he will not perform.” In the instant case, however, the record shows that Harris had no reason to believe that the appellants were relying upon him for tax advice or that anything he had done or said regarding the transaction had caused the appellants to refrain from seeking tax advice. At the second meeting, Harris informed all the parties that he was representing the interests of only the seller, and Moore responded that he had a lawyer in Iowa to consult. Also, in the stock purchase contract itself, Moore acknowledged that Harris had not acted as the appellants’ tax adviser, and that the appellants had not received or relied upon any tax advice allegedly given by Harris or his firm. Accordingly, the evidence also demanded a finding that no voluntary agency existed.

Judgment affirmed.

Corley and Sognier, JJ., concur.


text:
    76983. 77032.
    MADYUN v. THE STATE. AQUIL v. THE STATE.
    (372 SE2d 655)
   Banke, Presiding Judge.

Madyun and Aquil were jointly tried and convicted of motor vehicle theft. Each filed a separate appeal from the denial of his motion for new trial.

The evidence established that sometime between late afternoon on January 10, 1987, and 8:00 a.m. on January 12, 1987, a Southwind motor home bearing a Virginia license plate was stolen from Oglethorpe Avenue U-Haul in Albany, Georgia. The motor home was observed approximately one month later in Los Angeles, California, in the possession of the appellants. The officers who located the vehicle testified that after observing it pass through a red light, they ran a computer check on the license tag and determined that the vehicle had been stolen from “Albany.” The appellants were apprehended and arrested after first attempting to outrun the police in the motor home and then attempting to flee on foot.

After his arrest, appellant Madyun made two confessions, one to the Los Angeles police and the other to a Georgia Bureau of Investigation agent. In both instances, he admitted having participated in the theft of the motor home from the Albany, Georgia, dealership. However, in neither instance did he either implicate or exonerate Aquil as a participant in the theft. Held:

1. The evidence was clearly sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Madyun was guilty of motor vehicle theft. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While the evidence of Aquil’s guilt was only circumstantial, we hold that it was also sufficient to establish beyond a reasonable doubt his participation in the theft.

Although recent, unexplained possession of stolen goods is not automatically sufficient to support a conviction of theft, it may be sufficient in the context of other circumstances. See Bankston v. State, 251 Ga. 730 (309 SE2d 639) (1983). We hold that the evidence of Aquil’s attempted flight to avoid apprehension, coupled with his unexplained joint possession of the vehicle with Madyun, was sufficient to enable a rational trier of fact to find him guilty of participating in the theft beyond a reasonable doubt. Cf. Leverett v. State, 254 Ga. 691 (2) (333 SE2d 609) (1985).

2. Appellant Madyun contends that the trial court erred in allowing the state, over objection, to introduce into evidence a rifle, a briefcase and a notebook found in the motor home at the time of his arrest. Generally, the trial court has wide latitude in determining whether the probative value of evidence outweighs its potential for prejudice. See Queen v. State, 182 Ga. App. 794, 796 (357 SE2d 150) (1987). In this instance, we find no manifest abuse of this discretion.

3. Appellant Madyun further complains of the trial court’s charge to the jury that any conflict in the testimony of witnesses should, if possible, be settled “without believing that the witness made a false statement,” contending that the charge was unconstitutionally burden-shifting in light of the fact that he did not testify or otherwise offer evidence. This enumeration of error is without merit. In Preston v. State, 257 Ga. 42, 46 (354 SE2d 135) (1987), the Georgia Supreme Court, relying on Noggle v. State, 256 Ga. 383 (4) (349 SE2d 175) (1986), held that a similar instruction was not “unconstitutionally burden-shifting, nor violative of the defendant’s Fifth Amendment privilege against self-incrimination.”

Decided September 6, 1988.

W. Douglas Divine, for appellant (case no. 76983).

Britt R. Priddy, for appellant (case no. 77032).

Hobart M. Hind, District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.

Judgments affirmed.

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


text:
    76987.
    In re DOE.
    (372 SE2d 822)
   Deen, Presiding Judge.

Roy Dale Kirk has not filed an enumeration of errors or a brief in this case, although they were due on May 18, 1988. On May 19, 1988, this court denied his pro se request for an extension of time in which to file these documents. On June 7, 1988, appellees filed a motion to dismiss the appeal on the grounds that the notice of appeal was not timely filed. Held:

Kirk filed an action in the court below to legitimate his minor daughter who had been placed by her biological mother with Jane and John Doe for the purpose of adoption. The mother opposed the legitimation proceeding and, after hearing evidence and argument of counsel, the petition was denied. On November 19, 1987, some thirty-three days after the entry of that judgment, Kirk filed a notice of appeal. Appellee’s counsel filed an affidavit and a motion to dismiss. A hearing was held on December 22, 1987, and the court held that the notice of appeal was not timely filed and dismissed the appeal. A second notice of appeal along with a motion to proceed in forma pauperis, an affidavit of poverty, and a motion for appointment of counsel was filed on January 25, 1988. The trial court entered an order on January 27, 1988, denying Kirk’s request for appointment of counsel. On February 25, 1988, Kirk filed a notice of appeal from the order of January 27 claiming that it was from an order “denying his notice of appeal.” It is from the order of January 27 that he seeks review in this court.

OCGA § 5-6-38 (a) requires a notice of appeal to be filed within thirty days after entry of an appealable decision or judgment. If a notice of appeal is filed more than thirty days after the rendition of such an order or judgment, the Court of Appeals is without jurisdiction to entertain an appeal. Hull v. Campbell, 130 Ga. App. 637 (204 SE2d 312) (1974). The record shows that Kirk’s notices of appeal filed on November 19, 1987, and January 25, 1988, were not timely filed. The trial court was therefore correct in declining to appoint counsel in its order of January 27, 1988, as there was no viable appeal pending. Moreover, the order did not deny his notice of appeal, as contended in his notice of appeal of February 25, 1988. We find no error in the trial court’s ruling.

Decided September 6, 1988.

Roy Kirk, pro se.

Thomas H. Rogers, Jr., for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76996.
    MILLER v. HANDS.
    (372 SE2d 657)
   Deen, Presiding Judge.

In May 1984 appellee Hands went to Crawford W. Long Hospital for diagnosis of certain symptoms which she feared might indicate, inter alia, a heart attack. After undergoing a battery of tests, she was wheeled on a stretcher to the X-ray room. The nurse on duty, appellant Miller, requested that she leave the stretcher and stand in front of the X-ray machine. She did so but, while standing there, collapsed and fell to the tile floor, injuring her elbow and other parts of her body in the fall. She alleges that Miller was negligent in making her leave the stretcher unaided — especially when, she further alleges, she had complained of weakness — and in failing to render proper aid when she fell. Miller alleges, to the contrary, that Hands had given no indication that she was unable to stand unaided, that she herself had assisted Hands in getting up from the stretcher, and that she and a resident physician had rushed immediately to Hands’ aid when she fell.

Hands’ original suit against Miller and the hospital resulted in a mistrial on October 28, 1986, and was dismissed without prejudice. It was refiled pursuant to QCGA § 9-2-61 January 20, 1987, within the statutory six-month period, and on January 26, 1987, process was served not upon Miller herself but upon the hospital administrator, who at the same time accepted service on behalf of the hospital. Although the deputy marshal responsible for serving the defendant indicated in the Return of Service that he had served Miller personally, he subsequently executed an affidavit in which he stated that the administrator had told him that, in order to avoid disturbing the orderly functioning of the hospital, he himself would accept service as Miller’s agent. According to the hospital administrator’s affidavit, he himself then delivered both summonses and complaints to the hospital’s legal department.

Miller answered on February 25, 1987, raising as defenses improper venue, lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. On June 15, 1987, the six-month period for refiling having expired, Miller filed a motion to dismiss on the basis of lack of service within the statutory period. Plaintiff/appellee responded to this motion on June 30, 1987, and on August 5, 161 days after the defense of lack of service had been raised in Miller’s answer, personal service was effected upon Miller at her home in Powder Springs, Ga. After a September 3 hearing, the Fulton County State Court on November 13, 1987, denied the motion to dismiss. We granted this interlocutory appeal for the purpose of determining whether the trial court erred in holding that the service of process related back to the date of the filing of the complaint and whether, as a consequence, it erred in denying appellant’s motion to dismiss. Held:

In Hilton v. Maddox &c. Trim Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972), this court held at 425: “(I)f the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing.” In Webb v. Murphy, 142 Ga. App. 649 (236 SE2d 840) (1977), we cited this rule and held: “Where service is belatedly perfected, the trial court may dismiss the action when the delay was caused by laches on the plaintiffs part. Service must proceed with diligence if the statute of limitation is to be tolled by the filing of the action.” Id. at 650.

In Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975), this court had held at 781, that the correct test as to whether the statute will be tolled, so that service of process will relate back to the time of filing of the complaint, “must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” In Webb v. Murphy, supra, we cited this criterion and held at 650: “The trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts.” In Bible v. Hughes, 146 Ga. App. 769 (247 SE2d 584) (1978), we held at 770, that if the trial court determines that the delay “is attributable to the plaintiff and the court dismisses the complaint[,] this court will not intervene.” In that case we held further at 771, that “the plaintiff has the burden of showing lack of fault ... It does not matter that the defendants might have had prior notice of the complaint; until proper service of the petition ... [is effected] by serving them personally or at their . . . places of abode[,] they are not parties to the action.” (Emphasis in the original.) Accord Jones v. Brown, 174 Ga. App. 632 (331 SE2d 24) (1985); Jarmon v. Murphy, 164 Ga. App. 763 (298 SE2d 510) (1982).

Decided September 6, 1988.

Robert G. Tanner, Stephen H. Sparwath, for appellant.

James W. Lewis, Lynn A. Downey, for appellee.

In the instant case plaintiff/appellee Hands alleges that she had relied on the deputy marshal’s return of service and had had no notice that service had not been perfected until the filing of the motion to dismiss on June 15, 1987. Defendant/appellant alleges, however, that Hands did receive actual notice when Miller filed her responsive pleading February 24, 1987, raising as a defense, inter alia, insufficiency of service of process; and that Hands’ failure at that time to take affirmative steps to effect proper service constitutes laches, or lack of due diligence, which should require the court to find as a matter of law that service did not relate back. Hands contends that the “insufficient service” defense is merely one of the “boilerplate” defenses routinely asserted in many responsive pleadings and as such would not necessarily have alerted the plaintiff that service might not have been as indicated on the deputy marshal’s return of service; and that, once the motion to dismiss was filed, due diligence was exercised in finding the address at which appellant Miller (who had left the employ of the hospital, had moved from her former dwelling, and had married, changing her last name to Garner) could be served. She asserts that this contention is borne out by the fact that, despite these obstacles, Miller was located and personally served approximately seven weeks after the motion to dismiss was filed. See Brumbalow v. Fritz, 183 Ga. App. 231 (358 SE2d 872) (1987); Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986).

The trial court’s order in the case at bar indicates that the court considered all the evidence, including some evidence which might arguably be construed as suggesting an affirmative effort to prevent Hands from perfecting personal service on Miller; and exercised her discretion in determining that plaintiff/appellee Hands had exhibited that degree of diligence appropriate in the circumstances. This being so, and this court being bound to construe the evidence in the light most favorable to the judgment, we find no abuse of discretion and therefore are constrained not to interfere with the judgment below. Bible v. Hughes, supra.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77001.
    THE STATE v. JACKSON.
    (372 SE2d 823)
   Banke, Presiding Judge.

The appellee, a bail bondsman, was charged by accusation with (1) suggesting to an arrestee the employment of a particular attorney, in violation of OCGA § 17-6-51; (2) soliciting business at the jail, in violation of OCGA § 17-6-52; and (3) giving advice to an arrestee with respect to the defense or disposition of her case, in violation of OCGA § 17-6-53. The appellee moved to dismiss the accusation on grounds of selective and vindictive prosecution. Following an evidentiary hearing, the trial court granted the motion with respect to Count 2 of the accusation, i.e., the count charging the appellee with solicitation of business at the jail, but denied the motion with respect to the other two counts. The state appeals.

From the evidence introduced at the hearing on the motion to dismiss, it is apparent that the solicitation charge stemmed from the appellee’s participation in a system in effect at the jail whereby the jail officials gave professional bondsmen access to the charges against newly admitted arrestees and then allowed them to interview such arrestees in order to expedite their release on bond. This system, which was referred to colloquially as the “burnout” system, had been implemented in response to a federal court order placing restrictions on the size of the inmate population at the jail.

The solicitor’s office filed the charges against the appellee in response to a complaint made by a DUI arrestee whom the appellee had “bonded out” through use of the “burnout” system. The arrestee in question had not specifically complained to the solicitor’s office about the appellee’s conduct in offering her his services but had complained about the appellee’s alleged conduct in advising her to use a particular attorney and to attend a certain DUI school. The assistant solicitor handling the matter testified that he had included the solicitation charge in the accusation without knowledge of the existence of the “burnout” system. Held:

1. Some seven months after the state filed its notice of appeal (but prior to the transmittal of the case to this court), the appellee filed a motion in the trial court to dismiss the appeal on the grounds that the transcript had not been timely filed, and no extension of time for such filing had been sought by the state pursuant to OCGA § 5-6-39. No ruling was ever entered on that motion, although it remained pending in the trial court for approximately ten months before the appeal was ultimately docketed in this court. The appellee has now moved this court to dismiss the appeal on the ground that “the state has taken no action for seventeen months after filing the appeal and has filed no formal nor informal objection to appellee’s motion to dismiss the appeal during the ten months that appellee’s motion was pending.”

The authority of an appellate court or trial court to dismiss an appeal because of a delay in filing the transcript or in transmitting the record to the appellate court is governed by OCGA § 5-6-48 (c), which provides, in pertinent part, as follows: “No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. In like manner, the trial court may order the appeal dismissed where there has been an unreasonable delay in transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence. . . .” (Emphasis supplied.) Accord OCGA § 5-6-48 (f). See Young v. Climatrol Southeast &c. Corp., 237 Ga. 53 (226 SE2d 737) (1976); Llano v. DeKalb County, 174 Ga. App. 693 (1) (331 SE2d 36) (1985).

The appellee in this case has never alleged, either in this court or in the trial court, that the delay in filing the transcript and/or transmitting the record was unreasonable or inexcusable. Indeed, he has never alleged that the delay was caused by any action or inaction on the part of the state. Consequently, he has asserted no valid ground for dismissal of the appeal. In any event, the appellee’s failure to obtain a ruling on its motion to dismiss while the matter was still within the jurisdiction of the trial court precludes appellate review of the issue. “Pursuant to now applicable [Court of Appeals] Rule 47, the trial court [is] relieved of its jurisdiction to consider objections to records or transcripts when there [is] no ruling upon such objection prior to transmittal of the record.” Turner v. Taylor, 179 Ga. App. 574 (1) (a), 575 (346 SE2d 920) (1986).

2. “Some selective enforcement is not in itself a constitutional violation. See Oyer v. Boles [368 U. S. 448, 456 (82 SC 501, 7 LE2d 446) (1962)]. To be a constitutional violation, the selective enforcement must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification. Snowden v. Hughes, 321 U. S. 1, 8 (64 SC 397, 88 LE 497) (1943); Oyler v. Boles, supra, p. 456.” Sabel v. State, 250 Ga. 640, 643 (300 SE2d 663) (1983). Accord Lee v. State, 177 Ga. App. 698, 700 (340 SE2d 658) (1986). “The burden [is] on [the defendant] to prove a selective prosecution by showing (1) that others generally are not prosecuted for the same misconduct, and (2) the decision to prosecute [him] was based upon impermissible grounds such as race, religion or exercise of constitutional rights.” Gayton v. State, 184 Ga. App. 387, 388 (361 SE2d 691) (1987). Accord Carver v. State, 185 Ga. App. 436 (3) (364 SE2d 877) (1987).

Decided September 6, 1988.

James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellant.

Franklin N. Biggins, for appellee.

Although the appellee established without dispute that no other bondsmen had been prosecuted in connection with the use of the “burnout” system, no evidence was introduced tending to show that the decision to prosecute him was based upon invidious discrimination or upon a desire to punish him for the exercise of his legal rights. Thus, while the appellee may have established an uncontroverted defense to the solicitation charge by showing that it was the official policy of the jail to allow bondsmen to solicit business from newly admitted inmates (see generally OCGA § 16-3-25; McDonald v. State, 156 Ga. App. 143 (4) (273 SE2d 881) (1980)), no basis was shown for dismissal of the charge on grounds of selective prosecution.

Judgment reversed.

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


author: Banke, Presiding Judge. Beasley, Judge,

text:
    77011.
    CYR et al. v. MAYOR & ALDERMEN OF SAVANNAH.
    (372 SE2d 659)
   Banke, Presiding Judge.

The appellants were injured when their automobile collided with another car at an intersection located within the city limits of Savannah. It is undisputed that the driver of the appellants’ vehicle failed to stop at a stop sign upon entering the intersection and that the driver of the other vehicle had the right-of-way. Alleging that the stop sign in question was “totally obscured by vegetation, foliage and large trees” and that the city was negligent in allowing this condition to exist, the appellants brought the present action against “the Mayor and Aldermen of the City of Savannah” seeking to hold them liable for their injuries. The appellants do not contend that the city had in force any policy of liability insurance which would cover their injuries (see generally OCGA § 36-33-1), nor do they assert any basis for recovery other than the city’s alleged negligence. This appeal is from the grant of the appellees’ motion for summary judgment. Held:

“The operation and maintenance of traffic lights and other traffic control devices is a governmental function conducted on behalf of the public safety and for the negligent performance of which municipal corporations are not liable. (Cit.) Such functions are not related to the maintenance of the streets as such, and liability of a municipality for negligent failure to maintain a stop sign after it is once erected cannot be predicated on the theory that it is a part of street maintenance.” Arthur v. City of Albany, 98 Ga. App. 746, 747 (106 SE2d 347) (1958).

The appellants expressly concede in their brief on appeal “that the negligent maintenance of the streets and appurtenances thereto is the only theory of recovery presented to the trial court, and to this Court of Appeals.” See OCGA § 32-4-93 (a). It follows that the trial court did not err in concluding that the appellees were entitled to judgment as a matter of law. Compare Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) (1968).

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I fully concur. There is an important aspect of this case, not easily discernible in the opinion, which controls the outcome.

Plaintiffs allege that they did not stop because the stop sign was obscured, and that this was the proximate cause of their injuries. They do not allege that they failed to stop because their vision of the cross street’s approach to the intersection was obscured so that they did not see oncoming traffic and that this caused the collision. Although they allege that they slowed and, not seeing other traffic, proceeded and were struck, their theory does not embrace this inability to see other traffic as the proximate cause.

A municipality may be liable for damages resulting from defects in the roads when it is negligent in maintaining the roads. OCGA § 32-4-93. “Defects” include objects adjacent to, and suspended over, the streets, the presence of which renders use of the streets more hazardous. Richards v. Mayor of Americus, 158 Ga. App. 693 (282 SE2d 122) (1981). The case of Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 836-837 (165 SE2d 141) (1968) refers to “physical obstructions,” the presence of which may constitute a failure to keep the street “in a condition reasonably safe for travel,” which is the exercise of a corporate or proprietary power and thus a ministerial function.

The stop sign regulated traffic. Plaintiffs’ theory is that if it had been visible, they would have obeyed its regulatory command. The failure to be given notice of the requirement to stop at the intersection is what plaintiffs complain of. It was to them as though absent. The sign’s presence and maintenance is a governmental function, however, an exercise of the police power. OCGA § 32-6-50; Town of Fort Oglethorpe, supra at 837. The presence or absence of traffic control devices, and the maintenance of them after installation,' is a governmental function. Englander v. City of East Point, 135 Ga. App. 487 (218 SE2d 161) (1975). This would of necessity include their visibility.

Decided September 6, 1988.

Andrew W. Estes, for appellants.

Patrick T. O’Connor, James B. Blackburn, for appellees.

Since it is the obstruction of the traffic control device, and not obstruction of the sign of oncoming traffic, which plaintiffs contend caused them to advance and collide, they are barred from recovery for even negligent exercise of this governmental function. They cannot cross the bridge of liability by merely asserting that the city had a ministerial duty while complaining that the cause of injury was the negligent exercise of a governmental power. Arthur v. City of Albany, 98 Ga. App. 746 (106 SE2d 347) (1958).


author: Benham, Judge.

text:
    77013.
    FRANKS v. THE STATE.
    (372 SE2d 831)
   Benham, Judge.

Appellant was convicted of kidnapping, armed robbery, and robbery by intimidation. On appeal he asserts the trial court erred when it sustained the State’s objection to a portion of appellant’s opening statement and denied appellant’s subsequent motion for mistrial.

1. The State voiced an objection during appellant’s opening statement, made at the close of the State’s case, when appellant’s counsel began to recount the testimony of the State’s witnesses. The trial court informed appellant’s counsel that he was “allowed to state what the evidence shows from what the defense is going to present in evidence.” When given the opportunity to continue under th$t guideline, appellant’s counsel announced he had nothing furthej* to say. Appellant contends he was denied a fair trial because his. attorney was limited in his opening statement to commenting only on what would be shown by evidence presented by the defense.

“ ‘(C)ounsel for both parties in either a civil or criminal case, preliminary to the introduction of evidence, may state to the jury what each expects to prove on the trial. [Cit.]’ ” Johnson v. Jackson, 140 Ga. App. 252 (2) (230 SE2d 756) (1976). The purpose of the opening statement is to inform the jury and the court of the nature of the case, and to give an outline of the proof the party anticipated presenting. Recounting the evidence already presented and suggesting the conclusion demanded by that evidence is the subject matter of closing argument. The trial court appropriately exercised its discretion in limiting counsel’s “range of comment.” See Mathis v. State, 171 Ga. App. 620 (2) (320 SE2d 861) (1984).

Decided September 6, 1988.

Michael C. Clark, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Assistant District Attorney, for appellee.

2. After calling several witnesses, appellant made a.motion for mistrial, citing as its basis the trial court’s ruling discussed in Division 1. A motion for mistrial not made contemporaneously with the alleged misconduct is not timely. Favors v. State, 145 Ga. App. 864 (2), (4) (244 SE2d 902) (1978). See also Garner v. State, 180 Ga. App. 146, 147 (348 SE2d 690) (1986).

Judgment affirmed.

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


text:
    77014.
    HOUSTON v. THE STATE.
    (372 SE2d 832)
   Deen, Presiding Judge.

James Houston brings this appeal from his conviction of burglary contending that the court below erred in denying his motion for directed verdict of acquittal. When he made the motion in the court below he claimed that there was not sufficient evidence to convict him of burglary. Held:

The evidence showed that the victim, a deaf person, was awakened about 4:00 a.m. by a man in her bedroom who reeked of alcohol and made sexual advances towards her. She managed to escape from his advances, scream, and awaken a neighbor. The police were summoned, and she identified her attacker as “James Washington.” The police investigated and appellant was arrested at his sister’s home. He was brought into the victim’s presence and was positively identified by her as the man who was in her bedroom a short time earlier. There was evidence that Houston’s sister’s last name was “Washington,” and apparently there was some confusion in the victim’s mind as to his last name although he claims that she has known him all his life. The victim positively identified him at trial as the man who entered her apartment without permission. The evidence was sufficient for a rational trier of fact to find the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided September 6, 1988.

Walter E. Van Heiningen, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.


text:
    77050.
    OWINGS et al. v. GEORGIA RAILROAD BANK & TRUST COMPANY.
    (372 SE2d 825)
   Deen, Presiding Judge.

The appellee, Georgia Railroad Bank & Trust Company, obtained a judgment against the appellants in the amount of $222,000 principal plus $9,811.15 interest, based on the appellants’ personal guaranty of a loan made to the Augusta Cartage Company. This judgment also provided that the appellee was entitled to attorney fees in the amount of fifteen percent of the indebtedness.

On March 17, 1966, the parties met to discuss arrangements for satisfying the judgment. The understanding reached at this meeting is somewhat in dispute. The vice president of the appellee bank acknowledged that he discussed the possibility of accepting payment of the actual attorney fees incurred by the bank rather than fifteen percent of the indebtedness, but the appellants claimed that the bank vice president agreed to discount the attorney fees in such manner if the appellants made certain efforts to pay the judgment promptly. With that purpose in mind, the appellants obtained a loan from another bank and sold some property in Florida. In June 1986, at the scheduled meeting to pay the judgment, however, the appellants were required to pay the entire fifteen percent attorney fees rather than the actual costs.

The appellants subsequently commenced this action to recover the difference between the fifteen percent attorney fees paid and the actual costs incurred by the bank in enforcing the guaranty. Following a trial, the jury awarded the appellants $20,333.31, but the trial court later granted judgment for the appellee bank notwithstanding the verdict. This appeal resulted. Held:

The appellee bank moved for, and the trial court granted, judgment notwithstanding the verdict on the ground that any agreement by the bank’s vice president to discount the attorney fees was unenforceable because it was not supported by a valid consideration. We agree.

In return for the bank vice president’s asserted promise to discount the amount of attorney fees to be recovered under the judgment, the appellants promised to take certain measures to pay the judgment promptly. This agreement thus obligated the appellants to do nothing more than what they were already legally obligated to do. “ ‘An agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another.’ Johnson v. Hinson, 188 Ga. 639 (2) (4 SE2d 561).” Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590, 591 (309 SE2d 813) (1983). Accordingly, the trial court properly granted judgment for the appellee notwithstanding the verdict.

Decided September 6, 1988.

Percy J. Blount, for appellants

0. Palmour Hollis, Ziua P. Bruckner, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Carley, Judge.

text:
    77081.
    BROWN v. THE STATE.
    (372 SE2d 832)
    Decided September 6, 1988.

      Mark W. Straughan, William T. Straughan, for appellant

      James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.
   Carley, Judge.

Appellant was tried before a jury and found guilty of three counts of burglary. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

Appellant enumerates only the general grounds, urging that the State failed to introduce independent evidence corroborating the inculpatory testimony of his two accomplices. However, “[i]t is settled law in this State that the testimony of one accomplice may be corroborated by the testimony of another accomplice. [Cits.]” Smith v. State, 154 Ga. App. 741 (1) (270 SE2d 5) (1980). See also Brady v. State, 169 Ga. App. 316 (1) (312 SE2d 632) (1983). After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of guilt of the appellant beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    77091.
    TURNER v. THE STATE.
    (372 SE2d 826)
   Banke, Presiding Judge.

Turner appeals the denial of a motion for discharge and acquittal which he brought pursuant to OCGA § 17-7-170, based on the state’s failure to try him within two terms after he had filed a demand for trial. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).

On May 12, 1987, the appellant was arrested and issued uniform traffic citations charging him with driving under the influence of alcohol and speeding. The citations directed him to appear in the Recorder’s Court of Riverdale, Georgia, on June 23, 1987, to answer the charges. The appellant filed his demand for trial in the recorder’s court on that date. Also, on that same date, without any request for such action having been made by the appellant, the case was transferred from the recorder’s court to the State Court of Clayton County for prosecution. However, due to a clerical error, the demand for trial was not included in the materials forwarded to the state court clerk’s office but was sent to the state court solicitor’s office, where it remained unnoticed for several months.

On August 3, 1987, the solicitor filed an accusation charging the appellant with driving under the influence of alcohol; and on November 2, 1987, the appellant filed his “Motion for Discharge and for Judgment of Acquittal” pursuant to OCGA § 17-7-170. In its order denying the motion, the trial court found as a matter of fact that there was no prosecuting attorney in the Recorder’s Court of Riverdale, Georgia; that the terms of court for the State Court of Clayton County begin on the first Mondays in February, May, August, and November; and that there were jurors impaneled and available for trial throughout the period relevant to the appellant’s motion. The state does not dispute that the language of the demand for trial was sufficient to invoke the sanctions of OCGA § 17-7-170.

Although the appellant filed his demand for trial in June of 1987, the trial court applied the current version of OCGA § 17-7-170, which became effective on July 1, 1987. The 1987 amendment imposed a new requirement that the demand be “served on the prosecutor.” Also, the amendment specified that the demand “shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant.” OCGA § 17-7-170 (a); Ga. L. 1987, p. 841, § 1. In applying the 1987 amendment retroactively, the trial court reasoned that it “did not affect any substantive right of the defendant, but rather was concerned merely with the procedure whereby the substantive right might be obtained.” Held:

Pretermitting which version of the Code section was applicable, (see Jeffries v. State, 140 Ga. App. 477, 479 (231 SE2d 369) (1976); State v. Bostwick, 181 Ga. App. 508, 509 (352 SE2d 824) (1987)), we hold that the appellant’s motion for discharge and acquittal should have been granted, it being undisputed both that the recorder’s court has no prosecuting attorney and that the case was transferred from the recorder’s court to the state court without any request on the part of the appellant.

Decided September 6, 1988.

Thomas L. Washburn III, for appellant.

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

“ ‘(W)hen a demand for speedy trial has been filed, and the case is transferred from one court to another, the demand is also transferred.’ Majia v. State, 174 Ga. App. [432, 433 (330 SE2d 171) (1985)]. . . . Thus, it is incumbent upon the clerk’s office of the transferring court to forward a properly filed demand to that court which has newly acquired jurisdiction over the case. The defendant has no further obligation to insure that the clerk of the court performs his duty. [Cit.] ” State v. Bostwick, supra at 509. We accordingly conclude that the trial court erred in denying appellant’s motion for discharge and acquittal pursuant to OCGA § 17-7-170.

Judgment reversed.

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


text:
    77103.
    JONES et al. v. BROWN.
    (372 SE2d 661)
   Deen, Presiding Judge.

We granted a discretionary appeal in the instant case for the purpose of determining whether the Bryan County Superior Court erred in affirming the full Board of Workers’ Compensation in its adoption of the Administrative Law Judge’s (ALJ) award of 25 percent of income benefits as attorney fees, as agreed to between appellee Brown and his attorney in entering into a standard contingency-fee contract for the attorney to represent Brown in the latter’s attempt to enforce his rights under OCGA § 34-9-221.

Brown received a compensable injury, but appellant Jones, his employer, failed to commence payment within the statutory period or to notify his insurer, as required by OCGA § 34-9-221. Appellee Brown, pursuant to OCGA § 34-9-108 (b), retained attorney Hallman and executed the latter’s standard 25 percent contingency-fee contract, which meant that if Brown won his case, Hallman would be entitled to be paid by the employer/insurer an amount equal to 25 percent of Jones’ weekly benefits for as many weeks as they were ordered to be paid. Hallman immediately filed notice of his retention for the purpose of collecting the moneys due his client. When Brown’s first benefit check arrived, it was drawn for an amount less than that actually owed, and Hallman wrote a letter pointing out the error and also pointing out that the statutory penalty and fee had not been paid.

An ALJ found that the belated commencement of payments was “without excuse” and that it was the employer’s own action — or inaction — which had necessitated Brown’s retention of legal counsel. Moreover, the ALJ found that the standard contingency-fee contract was reasonable in comparison with other contingency-fee contracts employed by attorneys in the area. The ALJ therefore ordered that attorney fees equal to 25 percent of income benefits be paid claimant Brown’s attorney for 400 weeks, or for a lesser time if income benefits were terminated sooner. The employer/insurer filed successive appeals to the full Board of Workers’ Compensation and the Superior Court of Bryan County, each of which affirmed the holding of the tribunal below. In the appeal to this court, appellants enumerate as error (1) the Superior Court’s failure to reverse the full Board’s approval of the contingency-fee contract or to order that attorney fees be based on the time actually spent by the attorney to date (allegedly about five hours) at his regular hourly rate of $75; and (2) that the award of attorney fees was so grossly disproportionate and excessive as to constitute an abuse of the trial court’s discretion under OCGA § 34-9-108. Held:

1. The ALJ in his award expressly found that the appellant’s failure to comply in a timely manner with the relevant statutes was without excuse, and the imposition of penalty and attorney fees therefore appropriate. The purpose of the penalty and attorney fee provisions of Title 34 is to encourage the employer to settle promptly and thus to spare the employee unnecessary economic hardship. An employer who is untimely acts so at his own peril, and in effect invites imposition of pecuniary penalties that might have been avoided.

Moreover, appellant couples its contention that payment of $375 for time allegedly spent on the case to date is a fair compensation, with a “worst-case” scenario in which appellee might draw benefits for a full 400-week term and the employer would thereby be required to pay out a total of $13,334 in attorney fees. This hypothesis totally disregards such considerations as reduction to present value and the likelihood of termination of income benefits long before the 400-week maximum is reached. Furthermore, appellant overlooks not only the well-nigh ubiquitous use of contingency-fee contracts in workers’ compensation cases, but also the very valid reasons which dictate their use. See, e.g., Norris v. Kunes, 166 Ga. App. 686 (305 SE2d 426) (1983); Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576 (275 SE2d 152) (1980). To insist that in this particular case, which contains facts and issues by no means unusual in workers’ compensation cases, the court should have repudiated the contingency-fee contract in favor of some other means of reckoning the attorney fees, would in itself be tantamount to rejecting the application of the relevant statutes in favor of some extraneous — and erroneous — theory of law; that is, to insist that the court commit the very error with which appellant charges it in the instant appeal. We find no error of law here, and no validity in this enumeration.

Decided September 6, 1988.

James R. Gardner, Christopher E. Klein, for appellants.

Ronald W. Hallman, for appellee.

2. Scrutiny of the record reveals that in his award the ALJ carefully considered the reasonableness vel non of the fee contract, and the Superior Court, applying the proper appellate standard of “any evidence,” correctly affirmed the full Board. We find no abuse of discretion in these proceedings.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Pope, Judge.

text:
    76416.
    O’NEAL v. THE STATE.
    (372 SE2d 833)
   Pope, Judge.

The defendant, Charles Kenneth O’Neal, was arrested on January 25, 1987, and charged with driving under the influence. On May 5, 1987, defendant filed a “Demand for Jury Trial” in the City Court of Woodbury, Georgia. On that same day defendant was bound over to the Superior Court of Meriwether County. The superior court, however, did not receive defendant’s demand until July 10, 1987. Several terms of court thereafter, an accusation was returned against defendant in the superior court. On November 23, 1987, defendant filed a Motion to Dismiss and Plea in Bar based on the State’s failure to try him timely pursuant to his demand. This appeal follows the trial court’s order overruling defendant’s motion.

We must first determine whether the demand in the present case was a demand for speedy trial or, as the State argues, simply a request for a jury trial. Although no particular form is required for a speedy trial demand, “to invoke the extreme sanction of [acquittal contained in] OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial.” State v. Prestia, 183 Ga. App. 24, 24-25 (357 SE2d 829) (1987), and cits. In the case at bar defendant demanded “a jury trial at this term or the next succeeding term of Meriwether Superior Court or else all charges be dismissed.” This language clearly demanded both a speedy trial and a jury trial.

Decided September 7, 1988.

Virgil L. Brown, for appellant.

William C. Hambrick, Jr., District Attorney, for appellee.

The State also contends that the trial court properly overruled defendant’s motion because the superior court did not receive the motion until July 10, 1987 and, under the amended version of OCGA § 17-7-170 effective July 1, 1987 (Ga. L. 1987, p. 841, § 1), a demand for speedy trial is binding only in the court in which it is filed. Although the record shows that the superior court did not receive defendant’s demand until after the effective date of the amendment, defendant filed his demand on May 10, 1987. The case was transferred to the superior court on that same day. Under the law at that time, defendant’s demand should have been transferred to the superior court along with the other documents pertaining to defendant’s case. State v. Bostwick, 181 Ga. App. 508 (352 SE2d 824) (1987); Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985), aff'd 254 Ga. 660 (333 SE2d 834) (1985). It appears, therefore, that the State’s failure to receive notice of defendant’s demand until July 10, 1987 is properly attributed to the clerk of the city court and not the defendant. Clerical errors may not affect a defendant’s statutory right to speedy trial. Bostwick, supra; Jeffries v. State, 140 Ga. App. 477 (231 SE2d 369) (1976). Consequently, the trial court’s order overruling defendant’s motion must be reversed.

Judgment reversed.

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


author: Beasley, Judge.

text:
    76482.
    LOCKLEER v. THE STATE.
    (372 SE2d 663)
   Beasley, Judge.

Defendant appeals his conviction of three counts each of rape, OCGA § 16-6-1 (a), and burglary, OCGA § 16-7-1 (a), for entering the homes of three women, raping them, and taking things of value.

1. Upon returning its verdict, the jury was polled. One juror stated that the verdict was not hers. Another stated that the verdict was his, with the recommendation for a psychiatric examination. The judge explained to the second juror that sentencing was solely the court’s responsibility. The judge instructed the jury again on the unanimity requirement, and sent them back to deliberate further. After doing so, they returned a unanimous verdict and, upon being polled, each member affirmed the verdict as his or her own.

At the time, defendant voiced no objection to this procedure. Now, defendant argues that the court should have sua sponte granted a mistrial, or gone further in “correcting and discussing this matter with the jurors. ...” although defendant does not indicate the course the discussion should have taken.

A motion for mistrial is not appropriate in such a situation, even if requested by defendant. McKinney v. State, 174 Ga. App. 78, 79 (3) (329 SE2d 258) (1985); Mills v. State, 160 Ga. App. 49 (2) (286 SE2d 55) (1981); Rosser v. State, 156 Ga. App. 463, 464 (2) (274 SE2d 812) (1980).

The court followed the proper procedure in sending the jury back to deliberate further, although not requested to do so by defendant. Jackson v. State, 184 Ga. App. 123 (361 SE2d 14) (1987); Rosser v. State, supra. The explanation adequately instructed the jury so that its ultimate verdict cured the original defects.

2. At trial, defendant objected to the introduction of certain State exhibits on the ground that an inadequate chain of custody was shown. These exhibits consisted of rape kits for each of the three victims, a separate blood sample taken from one victim, and a rape kit from defendant. These kits consisted of vaginal swabs, blood samples, and combings from the women and blood samples and combings from defendant. Officer Bryant, who investigated these rapes, died before trial. He had transported some of the exhibits to the State Crime Lab for analysis. All other persons in the chain of custody testified, and the entire chain was proven as to two exhibits. All of the exhibits were received at the lab sealed in their containers. When the defendant’s kit was delivered by Bryant to the lab, he was accompanied by Officer Smith, who testified.

In order to prove chain of custody of a fungible item, it is not necessary to have every individual who touched the sample testify. Rucker v. State, 250 Ga. 371, 373 (1) (297 SE2d 481) (1982). It is sufficient to show that “the blood sample [was] handled in a normal course of testing and [that] nothing in the record raises a suspicion that the blood tested was other than that taken from the defendant [and the victims]. . . .” Rucker, supra. Reasonable assurance of the identity of the samples having been shown and there being no evidence of tampering, it was not error to admit them. Cunningham v. State, 255 Ga. 35, 37 (5) (334 SE2d 656) (1985); Johnson v. State, 184 Ga. App. 745 (1 a) (362 SE2d 450) (1987).

3. Defendant also complains of the trial court’s allowance of the testimony of one of the chain of custody witnesses whose name did not appear on the list provided under OCGA § 17-7-110. While the witness apparently was not on the formal list supplied by the State, the State opened its file to defendant’s counsel several days before trial and the witness’ name was on one of the property slips. Defendant voiced no objection to the testimony of the witness before she testified and was cross-examined. This objection was too late and preserved nothing for our review. Cape v. State, 246 Ga. 520, 524 (5) (272 SE2d 487) (1980); Warren v. State, 185 Ga. App. 108, 110 (3 a) (363 SE2d 357) (1987).

4. Denial of his motion for new trial on the general grounds is cited as error. Considering the sufficiency of the evidence, the only thing presented for our review on this ground, Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988), we find it legally sufficient. Defendant argues that the convictions are based only on eyewitness testimony and, therefore, are inherently suspect.

This was not, however, the only evidence. One of defendant’s fingerprints was found on the broken window used to gain entry to the apartment of one victim. Defendant admitted to one of his friends that he had committed a rape at the apartment complex of another victim. As to the third, her blood type was A while defendant’s was B. Sperm from a type B secreter was found in her vagina and type A blood was found on defendant’s jacket.

5. Defendant claims error in the trial court’s refusal to give “instructions that defendant requested” as set out in the transcript. After the court charged the jury and asked if there were objections, counsel for defendant objected to the court’s failure to give the “requested instructions” and read into the record all eleven of them. The paragraph in support of the enumeration here does not elaborate further, but merely contends that the requested charges were necessary because the charge as given was an inadequate statement to the jury of the law applicable to the case.

The enumeration is not argued and supported by citation of authority as required by Rule 15 (c) (2) and is deemed abandoned. Boyce v. State, 184 Ga. App. 578, 580 (8) (362 SE2d 229) (1987). We have examined the charge under the aegis of OCGA § 5-5-24 (c) and we find no substantial error. The charge as given included the substance of all of defendant’s requests to charge except numbers 1 and 9. As to all but these two, this was sufficient. Gay v. Rome, 157 Ga. App. 368, 370 (3) (277 SE2d 741) (1981). Number 1 is a request to charge the somewhat discredited “two theories” principle. Here, the charges were proven by direct as well as circumstantial evidence and the charge was thus not appropriate. Wilkerson v. State, 183 Ga. App. 26, 27 (2) (357 SE2d 814) (1987); Hill v. State, 183 Ga. App. 654, 659 (5) (360 SE2d 4) (1987). Number 9 dealt with not giving added credibility to the testimony of a police officer due to his position. The court gave the Suggested Pattern Jury Instructions of credibility of witnesses, which was sufficient. Vasquez v. State, 182 Ga. App. 850, 851 (2) (357 SE2d 302) (1987).

Decided September 7, 1988.

E. Ronald Garnett, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    76497.
    WEST END INVESTMENTS OF ATLANTA, INC. v. HILLS.
    (372 SE2d 665)
   Sognier, Judge.

Betty Hills brought an action for medical malpractice against several podiatrists, Midtown Anesthesia Services and two of its employees, and West End Investments of Atlanta, Inc. d/b/a The Atlanta Hospital and its employee Mary Compton, R.N. Hills subsequently voluntarily dismissed her claims against the podiatrists, and summary judgment was granted in favor of Midtown Anesthesia Services and its employees. The hospital and Compton then moved for summary judgment. The trial court granted Compton’s motion, and that ruling was not appealed. The hospital’s motion was denied, but a certificate of immediate review was granted, and we granted the hospital’s application for this interlocutory appeal.

The record reveals that appellee was admitted to appellant’s hospital facility by her private doctor for podiatric surgery. Prior to the operation she was examined at the hospital by Dr. John Read, an internist with staff privileges at the hospital, who cleared appellee for surgery. The foot surgery then took place, and while appellee was in the recovery room it was noted that her left ear was bleeding. Dr. Read was called, and he prescribed medication to be applied to appellee’s ear. Dr. Read also ordered a consultation with an ear, nose and throat specialist, which never occurred because the specialist was unavailable at that time and appellee subsequently departed from the hospital against medical advice. Appellee later visited a specialist recommended by her private physician, who diagnosed a perforated eardrum and performed surgery to repair the damage.

All other grounds having been removed from consideration either by the prior grant of summary judgment in favor of various defendants or by appellee’s voluntary dismissal of others, the basis for appellee’s opposition to and the trial court’s denial of appellant’s motion for summary judgment was the claim that the appellant is responsible for the alleged negligence of Dr. Read. Although Dr. Read is not a hospital employee, and his negligence ordinarily would not be attributable to appellant, appellee argued and the trial court apparently agreed, that appellant is or may be liable here for the negligence, if any, of Dr. Read under the doctrine of apparent or ostensible authority, as enunciated in the decision in Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (354 SE2d 632) (1987), aff’d Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987).

Appellant contends the trial court erred by denying its motion for summary judgment because the doctrine of apparent authority cannot be applied in this case, where no justifiable reliance on such apparent authority was asserted or demonstrated by appellee. Appellee claims it is not necessary to show such justifiable reliance on her part.

In Brown v. Coastal Emergency Svcs., supra, this court adopted for the first time the view, increasingly prevalent in jurisdictions across the country, that the doctrine of apparent authority applies, in some circumstances, to a claim against a hospital based on the negligence of a physician, despite the fact that the physician was not an employee of the hospital. In Brown, the allegations of negligence were directed against doctors staffing the emergency room of the hospital at which the patient presented himself for care. This court reversed the grant of summary judgment in favor of the hospital despite the fact that the doctors were not hospital employees because there was evidence that the hospital “held out” to the public that the doctors against whom negligence was alleged were “hospital doctors,” and that the plaintiff justifiably relied on that apparent agency to his detriment. Brown, supra at 897-898. The Supreme Court thereafter noted that “the essence of the doctrine [of apparent agency] is that one represents that another is one’s agent so that plaintiff justifiably relies on the care or skill of the apparent agent whose negligence causes the injury. It is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.” (Emphasis supplied.) Richmond County Hosp. Auth., supra at 508-509.

Further, this court noted in Brown that the plaintiff “specifically averred in his affidavit filed in opposition to the summary judgment motions that he opted to be treated by the physicians on duty at the University Hospital emergency room rather than by a ‘private doctor’ because he ‘felt that the hospital doctors would give better care.’ ” Id. at 897. The plaintiff in that case “alleged the hospital. . . held out to the public that such emergency room doctors . . . were agents and employees of the hospital ...” and was therefore estopped from denying the doctors were its agents. Richmond County Hosp. Auth., supra at 508.

In view of the foregoing language in the opinions of both this court and the Supreme Court, we decline to read Brown as authority for the proposition that a hospital can be held liable under the doctrine of apparent agency for any alleged negligent acts which take place within the hospital setting, regardless of whether the elements necessary for the application of the doctrine of apparent agency are presented.

Applying those elements to the case sub judice, the record discloses only that Dr. Read was not an intern or resident, and was not employed by appellant. Appellee’s podiatrist, Dr. Gary Laden, testified at deposition that he was called when the bleeding from appellee’s ear was noticed, that he talked with appellee by telephone about the bleeding from her ear, and that he “had an internist look at her ear.” That internist was Dr. Read, who was characterized by Dr. Laden as “a Board certified medical doctor who is the staff internal medicine specialist.” We have examined the record carefully and find no other evidence shedding light on Dr. Read’s status or his relationship with appellant. No indication is given in the record whether Dr. Read performed the preoperative examination on appellee because it was appellant’s usual practice to have one of “its” doctors perform such duties, or whether Dr. Read was engaged to do the examination by Dr. Laden, on appellee’s behalf. There is no evidence of “holding out” by appellant, or of reliance by appellee on a belief that Dr. Read was a hospital employee, rather than an independent physician asked to consult by appellee’s personal doctor.

In further contrast to the situation in Brown, our examination of the record reveals no evidence, nor do the pleadings of record reveal any allegation from which it could be deduced or reasonably inferred, that appellant led appellee to believe Dr. Read was its employee or that appellee justifiably relied on any such representation. Rather, the record shows that appellee alleged only that Dr. Read was negligent, and that Dr. Read was an employee of appellant. This allegation was pierced when appellant proffered the affidavit of Lewis Ransdell, the hospital administrator, who swore that in his capacity of administrator, he was familiar with the relationship between staff physicians and the hospital, and that at all times pertinent to this action, Dr. Read had not been employed by appellant, nor had appellant paid him any compensation for services, but that Dr. Read had staff privileges at the hospital, and had the right and privilege to treat patients there.

“When a motion for summary judgment is made and supported as provided in [OCGA § 9-11-56], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” OCGA § 9-11-56 (e); Buffington v. Gold Kist, 179 Ga. App. 393, 394 (346 SE2d 577) (1986). “ ‘ “When the [defendant-] movant for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met his burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.” [Cits.]’ [Cit.]” Currie v. Haney, 183 Ga. App. 506, 507 (359 SE2d 350) (1987).

Decided September 7, 1988.

Roger Mills, Stephen H. Sparwath, for appellant.

E. W. Weiman, Patrick G. Longhi, for appellee.

When appellee’s allegation that appellant was liable for Dr. Read’s negligence because he was a hospital employee was pierced by Ransdell’s affidavit, to avoid entry of summary judgment against her appellee was obligated to come forward with at least an allegation from which appellant’s liability on some other basis, such as apparent agency, could be maintained. Because she did not, she failed to raise a genuine issue of material fact, and appellant was entitled to judgment as a matter of law. Accordingly, the trial court erred by denying appellant’s motion for summary judgment. See generally Taylor v. McDonald, 183 Ga. App. 320, 322 (359 SE2d 1) (1987).

Judgment reversed.

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


text:
    76519.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. HEARN.
    (372 SE2d 834)
   Carley, Judge.

Appellee-plaintiff filed this tort action against appellant-defendant, seeking to recover damages for personal injuries. Appellant did not contest its liability and a jury trial was held solely as to the issue of appellee’s damages. The jury verdict was returned on June 25, 1987. The trial court did not enter its judgment on the jury verdict until July 17, 1987. On July 14, 1987, after the jury had returned its verdict but before the trial court had entered final judgment thereon, appellee filed a motion for new trial. On August 7, 1987, the trial court entered an order which granted a new trial to appellee.

Appellant subsequently filed a motion to amend the August 7, 1987 order wherein the trial court had granted appellee a new trial. The amendments sought by appellant were merely procedural, seeking the entry of a written order which complied with the requirements of OCGA § 5-5-51. On September 4, 1987, in response to appellant’s motion, the trial court did enter a new order which amended its order of August 7, 1987. The new order stated that the trial court was granting a new trial to appellee based upon both the general grounds and the prejudicial remarks made during closing argument of appellant’s counsel.

The September 4, 1987 order granting appellee a new trial was certified by the trial court for immediate appellate review and appellant applied to this court for an interlocutory appeal. We granted appellant’s application, stating that our reason for doing so was solely to consider the following limited procedural issue: “Was the plaintiff’s motion for new trial which was filed prior to the entry of the judgment on the jury verdict premature and invalid so that consideration thereof and ruling thereon by the trial court was error?” Thus, in this appeal, we are concerned with the authority of the trial court to enter the order granting the new trial, and not with the underlying merits of the motion for new trial.

1. The record in this case has been supplemented by the affidavit of the trial court pursuant to OCGA § 5-6-41 (f). The record, as thus supplemented, shows that the motion for new trial which appellee originally filed on July 14, 1987, was thereafter refiled by him within 30 days of the entry of judgment. The motion was refiled by appellee directly with the trial court pursuant to OCGA § 9-11-5 (e) and was accomplished with the permission of appellant. After this refiling, appellant participated in a hearing on the merits of the motion and it thereby waived any claim that service or notice was lacking. See Dunn v. Dunn, 221 Ga. 368, 369 (1) (144 SE2d 758) (1965). Accordingly, it would appear that the procedural issue which prompted our grant of this interlocutory appeal need not be addressed. There would be no merit in appellant’s enumeration of procedural error as to the trial court’s grant of appellee’s prematurely filed motion for new trial, because the supplemental record would show that the trial court granted appellee’s timely refiled motion for new trial.

2. Moreover, there would appear to be an additional reason why the procedural issue which prompted our grant of this interlocutory appeal need not be addressed. The trial court’s grant of a new trial is not dependent upon the filing of a motion by one of the parties to the action. OCGA § 5-5-40 (h) provides that “[t]he court also shall be empowered to grant a new trial on its own motion within 30 days from entry of the judgment, except in criminal cases where the defendant was acquitted.” This statutory power of the trial court exists notwithstanding the filing of an inappropriate or inadequate motion for new trial by one of the parties. See Florida East Coast Properties v. Davis, 133 Ga. App. 932 (4) (213 SE2d 79) (1975). Compare Darby v. Commercial Bank, 135 Ga. App. 462 (1) (218 SE2d 252) (1975) (holding that, after the passage of 30 days from the entry of judgment, the trial court is not authorized to grant a new trial on grounds which are not asserted in a motion for new trial filed by one of the parties). In the case at bar, the trial court’s original order of August 7, 1987 which granted a new trial to appellee was entered within thirty days of the entry of the judgment on the jury verdict. The subsequent September 4, 1987 amendment of the trial court’s original order was not unauthorized and in no way adversely affected the validity of the original order. Cutis v. Geiger, 176 Ga. 864 (1) (169 SE 127) (1933). Accordingly, the timeliness or untimeliness of appellee’s motion for new trial would appear to be irrelevant to the existence of the trial court’s authority to enter the order which granted appellee a new trial in this case.

Appellant urges that OCGA § 5-5-40 (h) should be given no consideration where, as here, the trial court expressly states in its order that a party’s motion for new trial is being granted. To place the focus of inquiry upon the order’s wording rather than upon its timing would, however, result in an elevation of form over substance. Any trial court that undertakes to grant a new trial has obviously made the determination that errors which occurred during the trial of the case contributed to the verdict that was returned therein. If the trial court fails to act upon its determination in that regard within thirty days of the entry of judgment, its subsequent grant of a new trial must be based upon a motion which was timely filed by one of the parties. See Darby v. Commercial Bank, supra. If, however, the trial court does act within the thirty-day period, then it is ultimately of no real legal consequence whether the trial court’s determination that a new trial is warranted was self-motivated or was motivated by a motion which was filed by one of the parties. Pursuant to OCGA § 5-5-40 (h), the controlling factors are simply the trial court’s determination that harmful error did occur and the trial court’s timing of its action upon that determination. Nothing in the wording of an order granting a new trial within 30 days of the entry of judgment serves to vitiate the trial court’s determination that a new trial is warranted. Likewise, nothing in the wording of such an order should serve to vitiate the legal effect of the trial court’s determination. In failing to apply OCGA § 5-5-40 (h) to such an order merely because of a reference therein to a possibly deficient motion for new trial, the form in which the trial court gave expression to its determination would be elevated over the substantive legal effect of that determination. Appellant offers no reason why the present case merits a deviation from the principle, consistently followed by the appellate courts of this state, that it is substance rather than form which controls. Appellant will potentially suffer no legal harm by adherence to this principle. Neither party can be said to suffer legal harm when an erroneous verdict is set aside. Appellee, on the other hand, will potentially suffer legal harm by the failure to apply OCGA § 5-5-40 (h) in the present case. In the absence of a timely filed motion, a verdict which in the timely determination of the trial court was infected with error would never be set aside. Accordingly, we hold that, notwithstanding the wording of the trial court’s order, OCGA § 5-5-40 (h) is applicable.

Pretermitting appellant’s enumeration of procedural error as to the trial court’s grant of appellee’s prematurely filed motion for new trial, the grant of a new trial within thirty days of the entry of judgment was nevertheless authorized pursuant to OCGA § 5-5-40 (h).

3. Resolution of the procedural issue which prompted our grant of this interlocutory appeal must await a case wherein a motion for new trial is filed prior to the entry of judgment and the trial court grants a new trial more than 30 days after the entry of judgment.

4. Appellant enumerates the trial court’s grant of appellee’s motion for new trial as erroneous on the merits. As previously indicated, however, appellant’s application for an interlocutory appeal was granted solely for the purpose of addressing a limited procedural issue. The application having been granted only as to this limited issue, appellant is not authorized to use this appeal as a vehicle to assert that the same order of the trial court is erroneous on other grounds. See generally Smith v. Southeastern Fidelity Ins. Co., 258 Ga. 15 (365 SE2d 105) (1988); Chadwick v. State, 255 Ga. 376 (339 SE2d 717) (1986). Compare OCGA § 5-6-34 (c), which provides for the review of “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below . . . , without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of the law. . . .” Accordingly, appellant’s enumeration of the merits of the trial court’s order as erroneous will not be addressed.

Moreover, the trial court’s order granting the new trial identified two bases for the ruling. The first stated basis for the grant of the new trial was that the “verdict is contrary to the evidence (OCGA § 5-5-20) and against the weight of the evidence (OCGA § 5-5-21).” “ ‘The first grant of a new trial will not be disturbed by this court where the new trial is granted in the discretion of the trial judge on the general grounds, unless the appellant shall show that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the trial court.’ [Cits.]” (Emphasis supplied.) Berman v. Berman, 231 Ga. 216, 217-218 (200 SE2d 870) (1973). See also Holton v. Jones, 174 Ga. App. 654 (331 SE2d 26) (1985); Pierce v. Gaskins, 168 Ga. App. 446, 447 (2) (309 SE2d 658) (1983). To gain a reversal in such a case “the evidence [produced at trial] must demand the verdict in order to show the trial court abused its discretion [in] granting the new trial.” (Emphasis in original.) Pierce v. Gaskins, supra at 448. Appellant has failed to make such a showing. In light of appellant’s failure to show that the trial court abused its discretion in granting the new trial based on the general grounds, any error of the trial court in ruling upon the special ground would be harmless.

Decided September 7, 1988.

Burt BeRieux, Harold S. White, Jr., Keith J. Reisman, for appellant.

B. Randall Blackwood, Kathryn R. Murray, for appellee.

Judgment affirmed.

Sognier, J., concurs. Been, P. J., concurs in Bivisions 1, 3, 4, and in judgment.


text:
    76553.
    HAYLES v. THE STATE.
    (372 SE2d 668)
   Benham, Judge.

This is an appeal from an order denying a plea in bar which was based on OCGA § 16-1-7 (b). Appellant was charged with having an improper tag, driving without insurance, and driving after being declared a habitual violator. According to appellant’s counsel, it was when appellant appeared for a trial in the Municipal Court of Peach-tree City that he learned that the habitual violator charge had been bound over to superior court and that appellant had waived a committal hearing. The record contains appellant’s written waiver of that hearing and an order binding the charge over to superior court, both dated the same date the charges against appellant were brought. After appellant pleaded guilty to the two minor charges in municipal court, he was indicted for the habitual violator offense. He filed a plea in bar, asserting that the State’s failure to try him for all the offenses at once required that he be acquitted of the remaining charge. The trial court denied the plea and we affirm that ruling.

1. The second of appellant’s two enumerated errors is that the trial court made findings of fact without permitting appellant to put on evidence. The transcript of the hearing on the plea shows, however, that the trial court did not refuse to permit appellant to put on evidence; appellant made no effort to do so. Appellant made no suggestion in the trial court that there was any evidence to be offered. We find no merit in that enumeration of error.

2. The burden was on appellant to show that further prosecution was barred by the previous prosecution. State v. Fowler, 182 Ga. App. 897 (357 SE2d 329) (1987). That burden included a showing that the proper prosecuting attorney had actual knowledge of all the charges. Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987). Appellant made no such showing, relying instead on an argument that any prosecutor who saw a habitual violator charge would know that there must have been other charges along with it. That sort of constructive knowledge was rejected in Baker, supra. Appellant, having failed to carry his burden, was not entitled to have the prosecution for driving after being declared a habitual violator barred.

Decided September 7, 1988.

Scott L. Ballard, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    76577.
    BROWN v. THE STATE.
    (372 SE2d 838)
   Pope, Judge.

Defendant was convicted of armed robbery of a restaurant. Defendant’s sole defense was mistaken identity. Three restaurant employees identified defendant at trial. One of the employees testified on cross-examination that she did not notice any scars on the robber. Each of the three employees gave a description of the suspect to the investigating police officer. A copy of the written report of the officer’s investigation was admitted into evidence. The printed form provided space for notation under several categories for personal description. The space provided for “scars” was left blank. At trial the investigating officer was asked to approach the defendant and examine his face. The officer testified he observed a scar under defendant’s right eye and a scar on his left chin. During deliberation, the jury sent the following written question to the trial judge: “Could [defendant] be brought before the jury so that we could look at his scars for ourselves?” The judge refused to reopen the evidence for that purpose, noting the parties had the opportunity to exhibit the defendant to the jury during the presentation of evidence but failed to do so. In his sole enumeration of error, defendant contends the trial court abused its discretion in denying the jury’s request because the judge’s refusal to permit the jury to see his facial scars violated his right to due process under the United States Constitution and the Constitution of the State of Georgia.

Decided September 7, 1988.

Mark V. Clark, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

The exhibition of scars to the jury is permissible where the existence of scars is relevant to the issues at trial. See Daniels v. State, 248 Ga. 591 (285 SE2d 516) (1981). However, the trial court is under no duty to reopen the evidence after jury deliberations have been commenced to admit evidence of scars or any other evidence the defendant neglected to present during the evidentiary phase of the trial. It is within the discretion of the trial judge to decide “whether or not, upon a request by the jury, after commencement of deliberations, the evidence should be reopened and new evidence admitted.” State v. Roberts, 247 Ga. 456, 458 (277 SE2d 644) (1981).

The existence of defendant’s facial scars was established by the testimony of the investigating officer. The absence of any mention of scars in the description given witnesses was also established by the evidence. Defendant had ample opportunity to exhibit the defendant to the jury during the evidentiary phase of the trial if he so wished. The judge’s refusal to reopen the evidence in no way denied defendant of his right to due process.

Judgment affirmed.

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


text:
    76580.
    RUCKER v. DEPARTMENT OF TRANSPORTATION.
    (372 SE2d 839)
   Benham, Judge.

This is a condemnation case. The only issue on appeal is whether the trial court erred in giving the following jury instruction taken from State Hwy. Bd. v. Bridges, 60 Ga. App. 240, 243 (3 SE2d 907) (1939): “The ‘value’ of land taken in a proceeding of this kind against a small strip of land embraces not necessarily the ‘value’ of the strip of land taken as an isolated parcel of land, but such additional ‘value’ as attaches to it by reason of its connection with the adjacent land. . . .”

Appellee condemned , a .847-acre strip of land along the road frontage of appellant’s 53-acre tract. At trial, appellant sought to have the jury value that strip of land without any reference to the value of the whole tract, submitting opinion evidence that small tracts are valued higher than equally sized subdivisions of larger tracts. The comparable sales figures appellant offered were of small tracts, whereas the comparable sales figures appellee offered involved larger tracts.

Decided September 7, 1988.

Earnest H. Woods III, for appellant.

John A. Dickerson, Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Mat-son, Senior Assistant Attorney General, for appellee.

Appellant’s argument on appeal is that the charge permits the jury to take into consideration the relationship of the land to the owner and denies just and adequate compensation to the owners of large tracts. We do not see how appellant’s conclusion follows from the charge; it makes no reference to owners at all and merely permits the jury to take the rational and logical step of considering the value of the particular property involved rather than some hypothetical strip of land existing in a vacuum. Appellant had an opportunity to convince the jury that smaller lots are valued more highly and that his strip of land should be considered alone. The trial court’s charge did not forbid the jury to accept appellant’s position; it merely informed the jury that the value was “not necessarily” the same for a small lot and a small strip from a large tract. We find no error in that charge and appellant has offered no authority for his position that the charge is an incorrect statement of law.

Although portions of the decision in Bridges, supra, have been overruled in Dept. of Transp. v. Gunnels, 255 Ga. 495 (2) (340 SE2d 12) (1986), and Wright v. MARTA, 248 Ga. 372, 376 (283 SE2d 466) (1981), the statement on which the jury instruction of which appellant complains was based has not been overruled, and appellant has not convinced us to do so on this appeal.

Judgment affirmed.

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