text:
    75643.
    MARSH v. WHITE.
    (365 SE2d 464)
   Beasley, Judge.

We granted Marsh’s application to appeal an order of the juvenile court changing custody of her minor son to the natural father and an order denying her motion for new trial.

Appellant’s seven enumerations of error are basically four: (1) the court’s order was insufficient as a matter of law to change custody; (2) the court imposed a deprivation of child custody as an additional penalty to the offense of driving under the influence; (3) the court erroneously denied the motion for new trial and failed to issue findings of fact and conclusions of law upon which the denial was based; and (4) the court abused its discretion in ordering an instanter transfer of custody in light of the supersedeas effect of a motion for new trial and application for discretionary appeal.

1. Appellant maintains that there was no evidence that any adverse change in her circumstances had a material effect on the welfare of the child, which had to be shown before the court could exercise its discretion and change custody; that the court failed to apply the complete and correct legal standard; and that the findings relied upon by the court in changing custody were “tainted by conjecture, supposition and implication and were without basis [in] fact.”

Appellant’s election not to include a transcript of the evidence renders us unable to examine the evidence to ascertain the basis for the court’s findings of fact, so we assume they are supported. Johnson v. Johnson, 242 Ga. 339, 340 (249 SE2d 22) (1978); see also as persuasive, Elder v. Elder, 184 Ga. App. 167, 168 (361 SE2d 46) (1987).

The court’s detailed and lengthy order transferring custody contained the following findings among others: Since the divorce four years earlier, the mother had moved three times and was residing with the child and her then husband in a “clean, well-kept neighborhood”; she had had four job changes since the divorce and was currently employed with good income; her husband was employed as a real estate broker with good income; the child was often without adult supervision between the time he arrived home from school and the mother’s return from work; the mother had had illicit sexual relations and a pregnancy which was terminated by abortion; the mother had been involved in two automobile accidents apparently as the result of her use of alcohol; she had had at least one charge of driving under the influence and several other traffic charges; she had participated in the illegal switching of a Georgia state license tag from one automobile to another; she had undergone psychiatric treatment and had taken prescribed medication for depression; her then husband had stayed overnight at the mother’s home in the presence of the child prior to the couple’s marriage; she excessively used alcohol and became intoxicated; and as a witness she was evasive, reluctant, contradictory, and non-committal. In the opinion of the court, the mother exhibited a lack of stability and structure in her lifestyle that was not in the best interest of the minor child.

The court then stated that, “[i]n cases such as this, a change of custody may be made upon a showing of substantial change in conditions materially affecting the interest and welfare of the child” and concluded that “there has been such substantial change as contemplated by the law, and further, that the best interest of said child would be served by placing custody with the plaintiff, with the defendant having reasonable visitation privileges.”

The statement of the court thus shows that it utilized the appropriate legal standard to determine change of custody. OCGA § 19-9-1 (b); see Evans v. Stowe, 181 Ga. App. 489, 491 (4) (352 SE2d 811) (1987); Robinson v. Ashmore, 232 Ga. 498, 501-502 (II) (207 SE2d 484) (1974).

Appellant further argues that there is no evidence that the court-found changed circumstances materially affected the welfare of the child, which is prerequisite to changing custody, and what is more, that the court’s finding that “the child is a bright, healthy, well adjusted, well mannered seven-year-old who loves both parents and gets along well with both” on its face would indicate that any changes of the mother’s circumstance did not have a material effect on the child.

It is true that “ ‘[t]he award of custody of a child of the parties in a divorce decree is conclusive unless there have been subsequently to the decree new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child. [Cits.] Though the trial judge is given a discretion, he is restricted to the evidence and unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. [Cit.]’ [Cit.]” Evans v. Stowe, supra at 491 (4).

Assuming the evidence supported the findings, as we must, the finding of fact recited is not, even without additional findings as to how the changed circumstances adversely affected the child, an insufficient basis, when considered in context, for the court’s ultimate conclusion that the found and stated changes in circumstance materially affected the child’s interest and welfare. “In determining whether or not a material change in circumstances substantially affecting the welfare of a child or children has taken place, the trial judge is vested with a discretion which will not be controlled by [the appellate] court unless it is abused.” Westmoreland v. Westmoreland, 243 Ga. 77, 79 (252 SE2d 496) (1979). This court will affirm that decision if there is reasonable evidence to support it. Blackburn v. Blackburn, 168 Ga. App. 66, 71 (1) (308 SE2d 193) (1983). Inasmuch as the lower court’s findings are supported as a matter of law, Johnson and Elder, supra, we cannot conclude that the court abused its discretion.

2. There is nothing in the record to support appellant’s conjectural assertion that the court imposed the deprivation of custody as an additional penalty for her DUI. Although the court mentioned the offense, it was a fact and just one of numerous relevant circumstances cited by the court as establishing a change. It was not in any manner earmarked as determinative or dispositive of the court’s ultimate decision, and it is not a fact which should have been ignored as a matter of law.

3. There is no merit to appellant’s contention that the trial court erred in denying her motion for new trial and in not including findings of fact and conclusions of law in the order.

The motion was based upon what is known as the “general grounds,” i.e., (1) that the verdict is contrary to the evidence and without evidence to support it, (2) that the verdict is decidedly and strongly against the weight of the evidence, and (3) that the verdict is contrary to law and the principles of justice and equity. See OCGA §§ 5-5-20; 5-5-21.

Where a judgment denying a party’s motion for new trial is appealed and the motion was based solely on the general grounds, the only query on appeal is whether the evidence supported the verdict. Daniels v. Hartley, 120 Ga. App. 294 (170 SE2d 315) (1969). The posture of the appeal mandates the assumption that the judgment was supported by the evidence. See Division 1, supra.

Written findings of fact and conclusions of law are required to be made by the trial court in the record in contested child custody cases. Couch v. Couch, 177 Ga. App. 773 (341 SE2d 303) (1986); see also, as persuasive, Jordan v. Jordan, 179 Ga. App. 155, 157 (1) (345 SE2d 675) (1986). The trial court had already satisfied such requirement in its order changing custody and it was not bound to again state findings of fact and conclusions of law in its order denying the motion for new trial. OCGA § 9-11-52 (b).

Decided January 14, 1988

Rehearing denied January 27, 1988.

Hill R. Jordan, for appellant.

William S. Stone, for appellee.

4. Lastly, appellant’s contention that the court erred in ordering an instanter transfer of custody is likewise without merit. The parties stipulated that the court’s order changing custody, as modified, would have immediate effect.

“In the absence of fraud or mistake, a party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing. [Cits.]” Imperial Massage &c. Studio v. Lee, 231 Ga. 482 (2) (202 SE2d 426) (1973). No fraud or mistake having been alleged or shown appellant has no basis for complaint in this regard.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75394.
    HOGANS et al. v. FOOD GIANT, INC.
    (365 SE2d 496)
   Beasley, Judge.

In this slip and fall case in which plaintiffs appeal, the trial court granted summary judgment after hearing on defendant’s “renewed” motion, which was filed together with plaintiffs’ depositions. The depositions had not been filed with the original motion but were now offered as evidence in addition to that accompanying the original motion. There had been no hearing on the original motion.

1. Three of the enumerations of error focus on the procedure following the denial of defendant’s first motion for summary judgment and seek to persuade that the denial could not be avoided. However, despite plaintiffs’ protestations, the trial court was not precluded from taking a fresh look at the evidence in its supplemented status and issuing a new ruling based on an application of the law to all of it in its entirety. The court found that the picture changed, once the depositions were considered.

This, of course, would not require reversing the first order, as it was deemed correct based on the insufficient evidence before the court when it was issued. Neither can appellants complain that there was no hearing on the first motion, as it was decided in their favor. Nor can they complain that there was a hearing on the “renewed” motion without a proper request under USCR 6.3, as they participated in the hearing and were not harmed by being heard.

OCGA § 9-11-56 does not prohibit successive motions for summary judgment based on additional evidence. Conversely, it does not prohibit the filing of additional evidence once a motion for summary judgment is denied. If a deficiency in evidence can be cured short of trial, then the obvious expedient of a motion more fully supported will achieve final resolution more quickly and inexpensively for all concerned. See Premium Distrib. Co. v. Nat. Distrib. Co., 157 Ga. App. 666, 667 (1) (278 SE2d 468) (1981), and cases cited therein. Denying the opportunity to make such a motion would only delay what would inevitably follow if trial proceeded, i.e., a directed verdict reaching the same result. Even if disposition is not accomplished by the further effort, the issues will be narrowed as contemplated in subsection (d).

2. The last two enumerations claim that there are genuine issues of material fact foreclosing defendant’s entitlement to summary judgment, even when the depositions are considered. The evidence of record shows, however, that plaintiffs cannot prevail before a jury, as a matter of law.

Although there is evidence that Mrs. Hogans slipped and fell and was injured on a rainy day soon after she entered the grocery store she had frequented for some years, she does not know what she slipped on or how long whatever she slipped on, if anything, had been on the floor. She did not see anything on the floor at the spot even after she fell, and she has produced no one else who did. Her young son, who came after she fell, felt water or dampness on the floor with his hand at the spot she fell but it was not visible and there was no puddle. Whether it was water spilled or tracked in by someone else or something else altogether or nothing other than what was on her shoe, is subject to conjecture, not the finding of disputed fact. How long the condition was there, if indeed there was a condition on the floor which caused her to slip, is also subject only to speculation. Although there was no mat at the front door on this occasion, plaintiffs show no correlation between this fact and the slip; besides, its absence was patent. On the record in this case, plaintiffs have not shown evidence which would raise a duty on the proprietor to post a sign that the floor might be slippery in the rainy weather.

Consequently, plaintiffs cannot show a dangerous condition, and they cannot show that defendant had superior knowledge of it or a reasonable opportunity to prevent or correct it. Such a state of the evidence prevents recovery from the proprietor. See Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987). As there noted: “To presume that because a customer falls in a store the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety, a status not imposed by the law of this state. [Cits.]” Id. at 226. See also Cook v. Arrington, 183 Ga. App. 384 (358 SE2d 869) (1987). Compare Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593) (1987); Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291) (1987).

Decided January 27, 1988.

Ray C. Norvell, Sr., for appellants.

Donald R. Andersen, Deborah A. Finnerty, for appellee.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    75739.
    STEWART v. THE STATE.
    (365 SE2d 498)
    Decided January 27, 1988.

      M. V. Booker, for appellant.
   Birdsong, Chief Judge.

The appellant, Ralph Stewart, Jr., brings this appeal from an order of the trial court denying appellant’s motion to recuse the trial judge on allegations that his “impartiality might reasonably be questioned,” and that he had “a personal bias or prejudice concerning defendant and counsel.”

This appeal was taken as a direct appeal under OCGA § 5-6-34 (a). The “order” appealed from is not “final” within the meaning of OCGA § 5-6-34 (a), and does not come within any of the enumerated exceptions in that subsection. Accordingly, as the case remains pending below, and there being no final judgment, and no certificate for immediate review or application for appeal made to this court, the appeal is premature and must be dismissed for lack of jurisdiction. Porter v. Calhoun County &c. Comm., 167 Ga. App. 53 (306 SE2d 58); Calloway v. Calloway, 161 Ga. App. 752 (289 SE2d 559); accord Deans v. Kingston Dev. Corp., 248 Ga. 557 (285 SE2d 11); Kristensen v. Kristensen, 238 Ga. 294 (232 SE2d 564); Wiley v. Williams, 161 Ga. App. 601 (289 SE2d 27); Citibank v. Hill, 158 Ga. App. 574 (281 SE2d 650); Shuford v. Jackson, 139 Ga. App. 469 (228 SE2d 605).

Appeal dismissed.

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

Dennis C. Sanders, District Attorney, for appellee.


author: Sognier, Judge.

text:
    75146.
    WILLIS v. FIRST NATIONAL BANK OF ATLANTA.
    (365 SE2d 458)
   Sognier, Judge.

The First National Bank of Atlanta instituted action against Larry Donald Willis to collect the accelerated balance on a VISA account. After a trial before the court without a jury, judgment was entered in favor of the bank, and Willis appeals.

The record reveals that appellant had a VISA account with appellee which was 23 months late when appellee accelerated and demanded the entire balance on May 24, 1985. On June 3, 1985, appellant mailed appellee his check for $100 along with a note in which appellant stated that $100 was all he could pay, and “[i]f this is not acceptable, proceed as you see fit.” A collector in appellee’s recovery department made contact with appellant in June, and informed him the bank could accept no less than $128 per month. This was acceptable to appellant and he agreed to send an additional $28 for that month and $128 each month thereafter. The evidence at trial was in conflict as to when the payments were to be made. It is undisputed, however, that $28 was received by the bank on June 21st, and another $128 was received from appellant on July 25th. However, the cycle for appellant’s account had closed by July 25th, and appellee accordingly had “charged off” appellant’s account from the active account system that very day. Thus, despite appellee’s acceptance of the check it received on July 25th, the payment did not operate to keep appellant’s account open and, claiming appellant had breached the agreement, appellee brought the instant suit.

1. Appellant contends the trial court erred by finding he breached the agreement made with appellee’s collector. In this enumeration, appellant challenges the sufficiency of the evidence to support several of the trial court’s findings of fact. “When a non-jury judgment by a trial court is reviewed by an appellate court in Georgia, we will not interfere with the findings of fact by the trial tribunal if there is ‘any evidence’ to support it. [Cit.]” Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983). Appellant asserts that there is no evidence to support the trial court’s finding that payments were due on the 15th of the month. Our examination of the record convinces us otherwise. The evidence was conflicting on this point, with appellant insisting to the contrary, but “[t]his court considers only the sufficiency of the evidence, not its weight. [Cit.]” Parr v. Pinson, 182 Ga. App. 707 (1) (356 SE2d 740) (1987). The cards used by the collectors were introduced into evidence, and showed a notation that appellant had agreed to send the next payment by July 15th. This evidence was sufficient to authorize the trial court to find that under the agreement payment was due by the 15th of the month. See Gemini Constr. Co. v. Childs, 182 Ga. App. 207, 208 (355 SE2d 81) (1987).

Decided January 11, 1988

Rehearing denied January 28, 1988

W. Cary Herin, Jr., for appellant.

M. Douglas Mann, for appellee.

The other findings of fact objected to by appellant in this enumeration relate to the actual closing date of the account, and whether the July payment could be made by the closing date, which appellant contends was authorized by the agreement. Since we hold that the evidence authorized the trial court’s finding that the agreement specified that payment was due on the 15th of the month, we need not consider these arguments. The record shows that appellant’s July payment was not received by appellee until July 25th, and thus, the trial court did not err by determining that appellant had breached the agreement.

2. The remaining contentions enumerated by appellant as error concern the legal characterization of the verbal agreement between appellant and appellee after acceleration. Appellant contends the trial court erred by denominating this agreement an executory accord, instead of a “quasi new agreement” such as that discussed in Lester v. Trust Co. of Ga., 144 Ga. App. 526 (241 SE2d 633) (1978). Had appellant kept the agreement, it would be important that we consider his arguments. However, because of our holding in Division 1 that the trial court was authorized to find that appellant had breached this verbal agreement, analysis of the nature of the agreement is unnecessary. In Lester, supra, no breach of the new agreement had occurred, and even if the arrangement appellant made with the collector is a “quasi new agreement,” we do not read Lester as contemplating that appellant could breach it with impunity and without consequence. We therefore find no merit in appellant’s remaining enumerations of error.

Judgment affirmed.

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


author: Pope, Judge.

text:
    75582.
    JONES v. THE STATE.
    (366 SE2d 144)
   Pope, Judge.

Defendant Eddie Blaine Jones appeals from his conviction by a jury of possession of and selling cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30). Held:

1. Defendant first contends that the trial court erred in admitting over objection evidence of similar transactions because the State failed to serve notice of its intent to present such evidence at least 10 days before trial as required by Uniform Superior Court (USC) Rule 31.1. In the case at bar, the State presented evidence that the required notice was mailed to defendant’s counsel on Friday, February 27, 1987, said date being 10 days prior to March 9, 1987, the date on which the trial was scheduled to commence. However, the record also shows that defendant’s counsel did not receive said notice until March 2, 1987, only 7 days prior to the trial date.

“OCGA § 17-1-1 deals with filing and service of pleadings, motions and notices subsequent to the indictment and provides in subsection (b): ‘service shall be made upon the party’s attorney ... by delivering a copy to him or mailing it to him at his last known address . . . (S)ervice by mail shall be deemed complete upon mailing.’ [Cit.]” Devane v. State, 183 Ga. App. 60, 62 (357 SE2d 819) (1987). Hence, we agree with the State that in the case at bar the “required service was accomplished as a matter of law,” id. and the trial court did not err in allowing admission of the complained of evidence over defendant’s objection. See also Roman v. State, 185 Ga. App. 32 (1) (363 SE2d 329) (1987).

2. Defendant next argues that the trial court erred in not granting a mistrial based upon testimony that the defendant was “one of the biggest dope dealers in Toccoa.” As to this issue the record indicates that Mike Crozier, an investigator with the Stephens County Sheriffs Department, testified that the confidential informant who assisted the investigating officers in obtaining cocaine from the defendant asked him did he “want to get one of the biggest dope dealers in Toccoa.” Defendant’s counsel then interposed an objection on the basis that said testimony was hearsay. The trial court sustained the objection and struck the testimony. Thereafter, defense counsel extensively cross-examined the witness as to why he used the confidential informant, who was himself facing criminal charges, and not someone else to assist in the drug purchases from defendant. On redirect examination Crozier testified that he used the confidential informant because the informant had access to the defendant. Immediately thereafter, apparently referring to the informant’s access to the defendant, defense counsel asked: “That’s an assumption on your part, isn’t it?” The witness responded affirmatively and counsel then asked: “You have no proof to that effect, your own personal knowledge, sir?” The witness responded that he had “never seen [defendant] sell any narcotics. I was given information from [the confidential informant] when he came to me . . . that he had access to [defendant], and did we want to get one of the biggest dope dealers in Stephens County and Toccoa, and I said yes.” Defendant immediately moved for a mistrial, contending that the statement was unresponsive, highly prejudicial and placed the defendant’s character in issue. On appeal defendant also posits that the trial court erred in refusing to grant his motion for mistrial because the admission of such evidence had not previously been approved by the trial court as required by USC Rule 31.3. However, as that ground was not urged by defendant below, we need not address it here. Daniels v. State, 183 Ga. App. 222 (1) (358 SE2d 637) (1987); Johnson v. State, 182 Ga. App. 822, 823 (357 SE2d 161) (1987).

Turning to a consideration of the grounds urged by defendant in support of his motion at trial, we find that, considering the testimony as a whole, the witness’ answer was not unresponsive to the question propounded by counsel. In this regard we note that the witness had been extensively questioned during cross-examination concerning his motivation for using the confidential informant, as opposed to someone else, in his investigation of defendant. Moreover, we note that the complained of testimony was in response to a question which had already been answered affirmatively by the witness, as obviously desired by defense counsel. “ ‘Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given. Henderson v. State, 208 Ga. 73, 75 (65 SE2d 175) (1951).’ Felker v. State, 252 Ga. 351, 377 (314 SE2d 621) [(1984)].” Byrd v. State, 182 Ga. App. 284, 286 (355 SE2d 773) (1987). “In light of the broad discretion accorded trial courts for decisions to grant or deny motions for mistrial. . . , and considering [the circumstances] in the present case, [defendant’s] enumeration of error is without merit.” McDermott v. State, 183 Ga. App. 693, 694 (359 SE2d 750) (1987).

3. Defendant also assigns error to the trial court’s refusal to grant a mistrial after it was disclosed that the Stephens County Sheriff, who was a witness for the State, had an out-of-court conversation with a juror and his wife. Specifically, the sheriff testified that he talked briefly with a juror and his wife in the hallway outside the courtroom and that the juror’s wife stated that “she came up to learn about court,” and he responded: “I’m proud you’re coming. We need folks like you up here.”

“Where an unauthorized contact or communication is made to a juror, a valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication. [Cits.]” Dudley v. State, 179 Ga. App. 252, 255 (345 SE2d 888) (1986). In the present case, no evidence was presented that the sheriff attempted to influence the juror in any way or that there was any discussion of the facts of the case. Moreover, the specific remark complained of was actually directed to the juror’s wife, not to the juror. “ ‘Ordinarily motions for mistrial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial [court].’ [Cit.]” Hart v. State, 157 Ga. App. 716, 717 (278 SE2d 419) (1981). Because the defendant has failed to show how he has been prejudiced by the allegedly improper remark in the case at bar, we find no abuse of discretion under the circumstances of the present case.

Decided January 5, 1988

Rehearing denied January 28, 1988

Timothy P. Healy, for appellant.

Michael H. Crawford, District Attorney, for appellee.

4. Lastly, the defendant contends that the trial court erred in refusing defendant’s request for resentencing based on an alleged discrepancy between the court’s oral pronouncement of sentence and the written sentence as subsequently entered. The record shows that the trial court orally announced: “I’m going to make it a ten years’ sentence, and the balance of it will be probated. ...” The written sentence provided for a sentence of thirty years, with ten to serve and the remaining time to be served on probation. Although we agree that the trial court’s initial pronouncement of sentence was not completely clear as to the duration of the probationary period, we find no discrepancy between the oral and written sentences; hence, this enumeration affords no basis for reversal.

Judgment affirmed.

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


text:
    72278-72303.
    CAREY CANADA, INC. v. HINELY et al.
    (366 SE2d 242)
   Pope, Judge.

A portion of our judgment rendered in these 26 cases at 181 Ga. App. 364 (352 SE2d 398) (1986) has been reversed by the Supreme Court on certiorari at 257 Ga. 150 (356 SE2d 202) (1987). Accordingly, insofar as our earlier judgment is inconsistent with the judgment of the Supreme Court, we vacate our earlier judgment and adopt the judgment of the Supreme Court as our own.

Judgments affirmed in part; reversed in part.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Ben-ham and Beasley, JJ., concur.

Decided January 28, 1988.

Darlene Y. Ross, E. Freeman Leverett, John D. Jones, for appellant.

Richard A. Middleton, Eugene C. Brooks IV, for appellees.


text:
    75398.
    BLAISE v. THE STATE.
    (365 SE2d 499)
   Sognier, Judge.

Appellant was convicted in a joint trial of trafficking in cocaine and he appeals.

1. In his first two enumerations of error appellant contends the evidence is not sufficient to support the verdict, and thus, the trial court erred by denying his motion for a directed verdict of acquittal. The evidence disclosed that Curtis V. Clark, a deputy sheriff in Liberty County, Georgia, received a telephone call from a confidential informant at 3:00 a.m., July 14, 1986, who told Clark to be on the lookout for a brown van occupied by three black males. Between 10:00 and 10:30 a.m. the same date Clark observed such a van leaving a residence in Walthoursville and heading toward another residence. Both residences were occupied by suspected drug dealers, who bought large quantities of drugs which they then distributed to their pushers. When the van left the second residence Clark followed it to the Tree Lounge, which was known by police as a common place for street sales of drugs. While following the van to the lounge Clark radioed for a marked police vehicle to stop the van; however, the van arrived at the lounge before the marked vehicle could stop it. When the marked vehicle arrived Clark pulled in front of the van and the three occupants, Weber Lewis, Tony Teophile and appellant, were asked to step out of the van. Lewis was the driver, one of the defendants was in the right front passenger seat, and the third defendant was sitting on a bench seat behind the driver’s seat. (Clark could not state which of the passenger seats was occupied by appellant and which seat was occupied by Teophile.) Lewis stated that he was the owner of the van and when Clark asked Lewis if he could search the van, Lewis consented. Clark found a K-Mart bag containing an off-white chunky powdery substance in an area between the back of the driver’s seat and the bench seat located behind the driver’s seat. The powder was analyzed at the State Crime Laboratory and found to contain 173.8 grams of cocaine.

Appellant argues that mere presence in the vicinity of contraband, without more, does not establish possession, and there must be a showing of constructive possession by appellant other than mere spatial proximity. While we agree with those principles of law, they are inapplicable here. Possession may be joint or exclusive, and actual or constructive. Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). In the instant case appellant and Teophile, a co-defendant, had just arrived from Florida. The van stopped at residences of two suspected drug dealers, and then went to the Tree Lounge, known as a common place for street sales of drugs. At the time of their arrest the defendants had been riding around in Lewis’ van since at least 3:00 a.m., a period of approximately seven hours. Such evidence would authorize a finding that appellant and his co-defendants had equal access to the cocaine and were in joint constructive possession of the drug. Id. By showing circumstantially that the three defendants had equal access to the cocaine, the evidence established that the defendants were parties to the crime, and thus, guilty of joint constructive possession of the cocaine. Brownlee v. State, 173 Ga. App. 138, 139 (1) (325 SE2d 815) (1984). Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, it was not error to deny appellant’s motion for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

Decided January 28, 1988.

Joseph C. Kitchings, for appellant.

Dupont K. Cheney, District Attorney, for appellee.

2. Appellant alleges error in the trial court’s failure to charge on circumstantial evidence because appellant’s conviction was based solely on circumstantial evidence. Appellant did not request a charge on circumstantial evidence and contrary to his assertion, the evidence consisted almost entirely of direct evidence. Accordingly, in the absence of a timely request, it was not error for the court to fail to give a charge on circumstantial evidence. House v. State, 232 Ga. 140, 146 (5) (205 SE2d 217) (1974).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    75469.
    WATTS v. THE STATE.
    (365 SE2d 501)
   Banke, Presiding Judge.

Kerry Lewis Watts brings this appeal from an order of the trial court dismissing a prior appeal from the denial of his motion for new trial following his convictions of kidnapping with bodily injury, false imprisonment, and entering an automobile.

The victim was employed as a trainer at a horse farm in rural Monroe County, Georgia. While she was at work on April 29, 1985, her checkbook, bank credit card, and $8 in cash were removed from her automobile, which was parked on the farm. She reported the theft to the police, who lifted tire prints from the scene.

The following morning, while she was alone at work, the victim was approached by a man wearing a ski mask and brandishing a shotgun. Although she could not observe the assailant’s facial features, she described him as being a heavy-set person, approximately 5 feet 6 or 7 inches tall, weighing 200 pounds, with a thick neck and sparse beard, and wearing mismatched knitted gloves. The assailant asked the whereabouts of the farm owner, whom he referred to as “Tommy,” and then locked the victim in the stable tack room for a period of time while apparently awaiting the arrival of “Tommy.” He subsequently released her, ordered her into the driver’s seat of her car, and, sitting in the passenger seat, instructed her to drive along a road leading toward the back of the farm, where he ordered her out of the car, tied her hands together, and tightly gagged her mouth with her sock, making references during these proceedings to the fact that her car had been broken into on the previous day. He then threw her to the ground and beat her repeatedly about the head and back with the barrel of the gun. Pretending to be dead, the victim remained on the ground until the assailant left, whereupon she managed to get to her feet and return to the farmhouse to summon help. The victim’s checkbook and a pair of gloves bearing the name “Timmy Watts” were subsequently discovered approximately 500 yards from the barn. In addition, tire and shoe prints were lifted from the crime scene.

The police investigation led to the appellant, whose physical characteristics matched the description given by the victim of her assailant and who was the brother of a Timmy Watts. The police proceeded to the appellant’s residence and asked him to accompany them to the sheriff’s office. The appellant agreed to do so and drove there in his own car. Miranda warnings were then administered and a written waiver of counsel obtained from him, following which, after approximately 30 minutes of questioning, he admitted his participation in the offenses and further revealed that the shoes he had been wearing at the time of the commission of the offenses were at the residence where he and his mother lived. The appellant, and subsequently his mother, gave their written consent to search the residence, resulting in the seizure of a pair of shoes whose soles matched the prints left at the crime scene. Also, it was determined that the tread of the tires on the appellant’s car matched the tire prints lifted from the scene. There was evidence showing that the appellant’s mother had in the past worked as a housekeeper on the farm where the offenses had occurred and that the appellant had bn occasion been there with her.

After the indictment was returned in the present case, the appellant filed an “Application for Appointment of Counsel and Certificate of Financial Resources,” in compliance with Rule 29.2 of the Uniform Rules for the Superior Court. Pursuant to this application, he was found to be indigent and counsel was appointed to represent him. On September 19, 1986, after the appellant had been found guilty, his appointed trial counsel filed a motion for new trial on his behalf. Subsequently, on October 3, 1986, a retained attorney entered an appearance as counsel for the appellant. The motion for new trial was amended on April 8, 1987, and was subsequently denied by the trial court on April 16, 1987. Thereafter, on April 30, 1987, the appellant’s retained counsel filed a timely notice of appeal, directing that the “transcript of evidence and proceedings ... be filed for inclusion in the record on appeal,” and specifying that the appellant, having “proceeded below” as an indigent, would continue to proceed as an indigent on appeal.

On May 1, 1987, appellant’s retained counsel received a certified letter from the Clerk of the Superior Court requesting payment of costs in the amount of $164 for the preparation of the record and transcript. Forty-one days later, on June 10, 1987, the state moved to dismiss the appeal based on the appellant’s failure either to pay these costs or to file an affidavit of indigence. Following the hearing, the trial court granted this motion, finding that the “[appellant’s] failure to pay court costs or file a pauper’s affidavit [had] caused an unreasonable delay in the transmittal of the record” and further finding that the appellant was not indigent. This appeal followed. Held:

1. Pursuant to OCGA § 5-6-48 (c), “[n]o 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 the 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.)

Pretermitting whether the affidavit of indigence filed by the appellant at the inception of the prosecution satisfied the requirements of OCGA § 5-6-48 (c), and also pretermitting whether the trial court abused its discretion in determining that the appellant was not indigent at the time the appeal was filed, we conclude that the trial court erred in dismissing the appeal absent a finding that the delay was inexcusable as well as unreasonable. Moreover, we conclude that, under the circumstances, a finding that the delay was inexcusable would not have been authorized.

The evidence demonstrated that the original adjudication of indigence, which was never challenged by the state, was predicated on full disclosure by the appellant of his financial assets. It appearing that the appellant has been incarcerated since the time of his arrest, it is not apparent how his financial situation could have improved during this period. (His retained counsel was secured by his mother and family friends.) Based upon these factors, the appellant’s present counsel asserts that he justifiably assumed that the bill for costs had been sent to him in error. While we recognize that “a convicted party can by his own conduct, or by his conduct in concert with that of his attorney, forfeit his appeal,” State v. Denson, 236 Ga. 239, 240 (223 SE2d 640) (1976), under the present facts, we hold that a dismissal was not authorized. See also OCGA § 5-6-30. Since the entire record has been transmitted to us and the issues have been briefed by the parties, we accordingly proceed to the merits of the appellant’s original appeal.

2. The appellant submits that his confession was erroneously admitted at trial because it was the product of an illegal arrest.

The appellant, a high school graduate who was 21 years of age at the time of trial, acknowledged his willingness to talk to the police when they arrived at his home and further acknowledged that he agreed voluntarily to accompany them to the police station. The officer in charge of the investigation testified that the appellant was not considered to be under arrest at that time. In Richardson v. State, 182 Ga. App. 827 (357 SE2d 162) (1987), this court upheld the admissibility of an incriminating custodial statement obtained under similar circumstances. Contrary to the appellant’s contention, the present case is distinguishable from Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979), where it was shown that the police had orders to “pick up” the defendant and “bring him in” for questioning and that the defendant “would have been physically restrained if he had attempted to leave.” Id. 442 U. S. at 203. In the present case, there is nothing to conflict with the state’s showing that the appellant was not arrested until after he admitted his involvement in the offenses. “In the absence of evidence that the [trial] court’s findings were clearly erroneous or evidence of a clear abuse of discretion, [its] findings at a Jackson v. Denno hearing will not be disturbed on appeal.” Sanborn v. State, 251 Ga. 169, 170 (304 SE2d 377) (1983). We hold that the trial court did not err in admitting the appellant’s confession.

3. The appellant’s four remaining enumerations of error, which concern the trial court’s failure to suppress physical evidence seized from his residence and automobile, are not supported by argument or authority. Consequently, pursuant to Rule 15 (c) (2) of this court, they are deemed to have been abandoned. We have nevertheless reviewed these enumerations of error and have determined each to be without merit.

Decided January 28, 1988.

Thomas M. West, for appellant.

E. Byron Smith, District Attorney, for appellee.

Judgment dismissing appeal reversed; judgment of conviction affirmed.

Carley and Benham, JJ., concur.


text:
    75513.
    MATHIS et al. v. DEPARTMENT OF TRANSPORTATION.
    (365 SE2d 504)
   Banke, Presiding Judge.

The Department of Transportation condemned 4.4496 acres of land belonging to the appellants, leaving them with a remainder of approximately 40 acres. The appellants appealed the issue of compensation to a jury, being primarily concerned with the effect of the taking on their remaining access to an adjacent highway. The jury awarded the appellants compensation in the total principal amount of $24,500, which was only $100 more than the amount previously paid into court by the department. This appeal is from the denial of the appellants’ motion for new trial. Held:

1. The appellants contend that the jury’s verdict was contrary to the weight of the evidence, which, they assert, established overwhelmingly that the taking deprived them of their only reasonable “on grade” access to the highway, thereby greatly diminishing the value of their remaining property.

In a civil case, “[a] trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. (Cit.)” Ricketson v. Fox, 247 Ga. 162, 163 (1) (274 SE2d 556) (1981). (Emphasis supplied.) Accord McBowman v. Merry, 104 Ga. App. 454, 456 (122 SE2d 136) (1961). The department’s appraiser testified that in his opinion the highway frontage taken by the department was “virtually useless . . . because it was so high above grade, and it had so much rock in it,” with the result that the remaining property had “basically the same access after the taking [as] before the taking.” He estimated that the total amount of money necessary to “compensate [the appellants], or put them in the same situation they were before the taking” was $11,700. Since this was less than the amount awarded by the jury, it cannot be said that the verdict was inadequate as a matter of law.

2. The appellants contend that they were entitled to a new trial on the basis of newly discovered evidence revealing that there was a “title problem” with respect to one of the remaining points of access which, according to the department, remained to them after the taking. However, it is not apparent why this alleged “cloud” on the public ownership of the right-of-way in question would not have been a matter of public record. Consequently, we must conclude that the appellants have not carried their burden of establishing that they were unable to discover this alleged newly discovered evidence in the exercise of due diligence prior to trial. See generally Timberlake v. State, 246 Ga. 488, 491-492 (271 SE2d 792) (1980). Moreover, since the appellants took the position at trial that, due to county subdivision regulations, the access available to them at the location in question was not legally adequate in any event, it cannot be said that the evidence of this alleged title defect was “so material that it would probably produce a different verdict.” Dept. of Transp. v. Cochran, 160 Ga. App. 583, 584 (287 SE2d 599) (1981). Consequently, this enumeration of error establishes no ground for reversal.

3. The appellants contend that the trial court erred in charging the jury that three specific points of access remained to them after the taking, when the evidence in fact showed that one of these points of access had been taken by the department and that the other two might not be usable due to legal or topographical problems. However, this enumeration of error was not made the subject of an objection at trial. Generally speaking, “in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a).

We reject the appellants’ contention that this asserted error was so blatantly prejudicial and harmful in the context of the evidence and of the issues being tried as to require reversal pursuant to OCGA § 5-5-24 (c), notwithstanding the absence of an objection. Moreover, the transcript in this case reveals that the appellants’ counsel did not merely fail to object to this portion of the court’s charge but affirmatively acquiesced in it by announcing that the appellants’ “only exception to the charge” concerned a different portion thereof. It has been held that OCGA § 5-5-24 (c) is inapplicable under such circumstances. See Brown v. Garcia, 154 Ga. App. 837, 838 (270 SE2d 63) (1980).

4. The appellants contend that the trial court erred in refusing to give their requested charge that “[deprivation of access taking into consideration the inconvenience and circuity of travel in reaching the remaining property created by the taking is clearly a consideration affecting the value of the condemnees’ remaining property and is compensable as an element of consequential damages.”

Decided January 28, 1988.

Sandra M. Baumwald, J. Edward Allen, Jr., for appellants.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Ken Stula, Special Assistant Attorney General, for appellee.

As part of its charge on consequential damages, and with specific reference to the issue of the effect of the taking on the appellants’ access to their remaining property, the trial judge charged the jury as follows: “Now I charge you further, ladies and gentlemen, that the condemnees cannot recover for mere inconvenience in the use of their property retained by them resulting from the lawful use of the land taken by the condemnors except insofar as such inconvenience, if any, may be shown by the evidence to adversely affect the fair market value of the condemnees’ remaining property. I charge you that the cost of any repairs or improvements to these rights-of-way which I have referred to which you find must be made by the condemnees in order for them to have effective and reasonable access to the public road constitutes elements of consequential damages to the property retained by the condemnees.” (Emphasis supplied.) We conclude that this constituted a sufficient instruction on the principle, expressed in Dept. of Transp. v. Whitehead, 253 Ga. 150, 152 (317 SE2d 542) (1984), that the jury may compensate the condemnee for deprivation of access in a manner which “[takes] cognizance of the inconvenience and circuity of travel created thereby in reaching his remaining property.” Consequently, we hold that the trial court did not err in refusing to give the requested charge.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: McMurray, Presiding Judge.

text:
    75586.
    GOURMET DELIGHTS, INC. et al. v. EDGEWATER COUNTRY CLUB, INC.
    (365 SE2d 514)
   McMurray, Presiding Judge.

This is a direct appeal from an order striking defendants’ answers (for failure to comply with discovery), entering judgment for plaintiff, reserving the issue of damages for trial and awarding plaintiff attorney fees (in connection with its motion for discovery sanctions). Held:

Decided January 28, 1988.

Howard P. Wallace, for appellants.

Sanford J. Gerber, for appellee.

1. Ordinarily, to be appealable, a judgment must be final, i.e., the case must no longer be pending in the trial court. OCGA § 5-6-34 (a) (1). “[S]ince it is clear that the case is still pending in the court below the appeal is premature and therefore subject to dismissal.” Black v. Sturdivant, 131 Ga. App. 698 (206 SE2d 526). See Havischak v. Neal, 176 Ga. App. 203 (335 SE2d 469). See also Vowell v. Carmichael, 235 Ga. 410 (219 SE2d 735); American Express Co. v. Yondorf, 169 Ga. App. 498 (313 SE2d 756).

2. The motion to assess a penalty for frivolous appeal is denied.

Appeal dismissed.

Sognier and Beasley, JJ., concur.


text:
    75612.
    AUTO-OWNERS INSURANCE COMPANY v. SAPP.
    (365 SE2d 286)
   Banke, Presiding Judge.

The defendant insurance company filed this appeal from a judgment awarding the plaintiff insured disability benefits pursuant to the personal injury protection (i.e., “no-fault”) provisions of his motor vehicle accident insurance policy. The case was submitted to the trial judge upon a stipulation of facts, which may be summarized as follows.

The plaintiff was injured in an automobile accident on March 30, 1986, and was disabled as a result of his injuries until June 4, 1986. He was employed on the date of the accident by Firestone Tire and Rubber Company, where he had worked continuously for the past 15 years. However, during the period of disability, the plant where he had worked ceased operations, with the result that his employment with Firestone was terminated on that date. The defendant paid disability benefits to the plaintiff for the period between the date of the collision and the date of the plant closing but refused to pay him such benefits for the remaining period of his disability, prompting him to file the present action. It is undisputed that the plaintiff received no offers of other employment while he was disabled. The defendant contends that under such circumstances he is not entitled to any additional disability benefits. Held:

A rule which required a factory worker seeking to recover “no-fault” disability benefits to prove that he had received and accepted during the period of his disability offers of employment from other employers would be a virtual “catch-22,” it being unlikely in the extreme that any such offers would be available to the worker under such circumstances. Additionally, such a rule would be contrary to well settled precedent. To recover benefits for “loss of income or earnings during disability” pursuant to OCGA § 33-34-4 (a) (2) (B), an insured is required merely to establish with “reasonable certainty” the fact and amount of such lost income or earnings, and this he may accomplish either by showing that he previously had accepted an offer of income-generating employment for the period in question or by showing “a continuous pattern of employment prior to the period of disability.” Allison v. Auto-Owners Ins. Co., 256 Ga. 446, 447 (349 SE2d 682) (1986), citing Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574 (1) (277 SE2d 675) (1981), and Midland Ins. Co. v. West, 175 Ga. App. 419, 420-421 (333 SE2d 628) (1985). Accord Insurance Co. of North America v. Smith, 183 Ga. App. 266 (1) (358 SE2d 658) (1987).

Decided January 28, 1988.

William E. Cannon, Jr., for appellant.

John M. Beauchamp, Kermit S. Dorough, Jr., for appellee.

In the present case, the stipulations entered into by the parties established that a continuous pattern of employment had existed for many years prior to the accident. Such evidence was sufficient to establish the plaintiff’s entitlement to disability benefits for the entire period of his disability.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75633.
    ALLEN v. SUN CONCRETE COMPANY.
    (365 SE2d 506)
   Banke, Presiding Judge.

The appellee, Sun Concrete Company, filed the present action against the appellant, Steve Allen, to recover for certain paving work allegedly performed for him pursuant to an oral contract. Allen denied having dealt with Sun Concrete Company in his individual capacity, contending that he had contracted for the work as an agent for a corporation known as S. Myers & Associates, Inc. Following a non-jury trial, the judge found in favor of Sun Concrete Company. Allen filed this appeal from the denial of his motion for new trial.

Michael Sessions, Sun Concrete’s president, testified that Allen had personally made the arrangements for the work and that there had been no mention of S. Myers & Associates, Inc., until after Allen was billed following the completion of the work. Relying on this court’s decision in Lamas v. Baldwin, 140 Ga. App. 37 (230 SE2d 13) (1976), Allen contends that although there may have been no express disclosure of the alleged agency, the attendant circumstances surrounding his dealings with Sessions were such that Sessions cannot reasonably claim lack of knowledge that he (Allen) was acting as an agent for a corporation in contracting for the work. Held:

Decided January 28, 1988.

Edwin L. Hoffman, for appellant.

Quentin Henderson, Jr., for appellee.

In Lamas, the plaintiff subcontractor admitted that he had seen a building permit at the construction site which identified a corporation as the general contractor, and it was further established that there had been a large sign at the job site identifying this corporation as the general contractor. Additionally, it was shown that the plaintiff in that case had addressed all of his bills to the corporation and that the partial payments which he had received for the work had been in the form of checks naming the corporation as payee. There were no comparable circumstances in the present case. Although Allen asserts that S. Myers & Associates, Inc., was identified as the owner and developer of the construction project both on a sign which existed at the site and on a subdivision plat specifying where the work was to be performed, the evidence does not in fact reveal whether the corporation’s name was on the sign; and the appellee’s president testified without dispute that he had not seen the plat prior to the trial. Moreover, the appellee, unlike the plaintiff in Lamas, did not bill the corporation for the work but billed the defendant personally. Thus, the Lamas decision does not control the present case. Instead, the case is controlled by Collins v. Brayon Supply Co., 157 Ga. App. 438, 439 (278 SE2d 87) (1981), where we held that the issue of whether the attendant circumstances reasonably disclosed the existence of the corporate principal was for the trier of fact. The evidence in the present case, like the evidence in Collins, was more than adequate to sustain the trial court’s judgment holding the defendant personally liable.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75635.
    SIMONDS v. CONAIR CORPORATION.
    (365 SE2d 507)
   Sognier, Judge.

John A. Simonds brought suit against Conair Corporation to recover damages for injuries suffered when he was burned by a hair dryer manufactured by Conair. The case was tried before a jury, which returned a verdict for Conair. Judgment was entered on the verdict and, following the trial court’s denial of Simonds’ motion for a new trial, he appeals.

The evidence disclosed that appellant was awaiting the arrival of his hair stylist at a hairdresser shop. Connie Finks, another stylist employed at the salon, shampooed appellant’s hair as a courtesy to appellant’s stylist and then left the premises, leaving only appellant and the receptionist in the shop. Shortly thereafter, when appellant’s stylist had not arrived, appellant felt chilled and requested permission from the receptionist to dry his own hair. This was given, and appellant was told to use Finks’ hair dryer. While appellant was blowing his hair dry with Finks’ hair dryer, the dryer overheated, melting portions of the plastic casing and causing severe burns to appellant’s hand. It is uncontroverted that appellant required hospitalization and surgery and incurred medical bills in excess of $8,000.

1. Appellant contends the trial court erred by denying his motion for a new trial because the verdict was not supported by the evidence and was against the weight of the evidence. “ ‘The appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict.’ [Cit.]” Githens v. Roberts, 174 Ga. App. 152, 154 (329 SE2d 219) (1985). In the case sub judice, the evidence was in conflict as to whether the dryer was defective from the time of manufacture, or whether it had been damaged or faultily repaired thereafter. Appellant’s expert witness testified that in his opinion, the former was true. However, appellee’s expert witness was of the opinion that the dryer had not been defective when manufactured, but had been damaged or improperly repaired subsequent to manufacture. He based this opinion on his analysis of the physical evidence — the dryer itself. Thus, despite Finks’ testimony that to her» knowledge, the dryer had not been opened or repaired prior to the accident, there was some competent evidence which the jury could have believed, and from which it could have concluded that appellee had not manufactured a defective dryer and was thus not responsible for appellant’s injuries. “ ‘On appeal, the evidence is to be construed to uphold rather than overturn judgment of the trial court. [Cit.] Where the evidence of the plaintiff and the defendant [is] in conflict, the fact finder ... is the final arbiter. [Cit.] This court is not to weigh the evidence de novo, but merely determines if there is any evidence which supports the verdict and judgment below. [Cit.]’ [Cit.]” Rich v. Ga. Farm Bureau Mut. Ins. Co., 176 Ga. App. 663, 664 (337 SE2d 370) (1985). We find that the jury had sufficient evidence to conclude that the injury to appellant was not caused by the negligence of appellee, and thus the trial court did not err by denying appellant’s motion for a new trial.

2. Appellant also asserts the trial court erred by requiring sequestration of his expert witness during the videotaped testimony of appellee’s expert witness. We do not agree. OCGA § 24-9-61 gives either party the right to have the witnesses of the other party examined out of the hearing of each other. “Where there is an order for separation or sequestration of the witnesses, exceptions to the rule pertaining to witnesses who are not parties to the case are discretionary with the trial court, and the trial court will not be reversed, whether the witness is excluded or is permitted to remain, unless under the facts of the particular case the trial court has abused that discretion. [Cits.]” Horton v. Wayne County, 243 Ga. 789, 791-792 (3) (256 SE2d 775) (1979). Under the facts of this case, where the testimony was videotaped, thus eliminating the possibility of the expert providing assistance to appellant’s counsel for cross-examination, and where appellant’s expert had already been allowed to review a transcript of the testimony, we find the trial court did not abuse its discretion by refusing to grant an exception to the rule of sequestration. See Bartell v. State, 181 Ga. App. 148 (1) (351 SE2d 495) (1986).

3. In appellant’s final enumeration, he maintains the trial court erred by failing to charge the jury on the doctrine of res ipsa loquitur, as requested by appellant. We find no merit in this enumeration. Res ipsa loquitur is “a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another. . . . The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant.” Parker v. Dailey, 226 Ga. 643, 645 (177 SE2d 44) (1970). “ ‘The elements of the doctrine are: “(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” [Cit.]’ [Cit.]” Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118, 119 (1) (325 SE2d 460) (1984). In the case at bar, the evidence clearly established that the hair dryer had not been within appellee’s exclusive control since its purchase some 2Vz years before the accident. The doctrine of res ipsa loquitur is, therefore, not applicable to the facts sub judice, and it was not error for the trial court to refuse to give the requested charge. See Sun v. Bush, 179 Ga. App. 80, 81-82 (6) (345 SE2d 85) (1986).

Judgment affirmed.

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

Decided January 28, 1988.

William R. Hurst, for appellant.

Lynn M. Roberson, for appellee.


text:
    75677.
    BASS v. THE STATE.
    (365 SE2d 509)
   Banke, Presiding Judge.

Bass appeals his convictions of driving under the influence of alcohol and driving too fast for conditions.

While waiting at a red light, the arresting officer observed the headlights of the appellant’s vehicle approaching rapidly from behind. Believing that the appellant was going to collide with him, the officer drove forward and to the right, while the appellant veered to the left, braking and coming to a stop in the intersection alongside the police vehicle. After inviting the appellant to pull to the side of the road and exit his vehicle, the officer observed him to be unsteady on his feet and detected a strong odor of alcohol on his breath. He then arrested the appellant for DUI, gave him the implied consent warning, transported him to the police station, and asked him to submit to an intoximeter test. Although the appellant did not expressly refuse to take the test, no intoximeter reading was obtained. The appellant maintained that he was unable to blow into the machine due to recent abdominal surgery, while the officer testified that the appellant made no attempt to blow into the machine. Held:

1. From the evidence presented, any rational trier of fact could reasonably have concluded beyond a reasonable doubt that the appellant was guilty as charged. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It is immaterial that no evidence was offered as to the actual speed the appellant’s vehicle was traveling upon approaching the intersection. OCGA § 40-6-180 specifies that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions” and that “every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection. . . .” The evidence showing that both the officer and the appellant were forced to take evasive action to avoid a collision was sufficient to support the conclusion that the appellant was not operating his vehicle at a reasonable speed upon approaching the intersection. Likewise, the evidence that the appellant’s speech was slurred, that he was unable to walk without assistance, that he smelled strongly of alcohol, and that he had admitted having consumed alcoholic beverages during the course of the evening in question was sufficient, in conjunction with the evidence concerning his manner of driving, to support his conviction of driving under the influence. See Collins v. State, 177 Ga. App. 758 (2) (341 SE2d 288) (1986) .

Decided January 28, 1988.

John R. Calhoun, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly D. Rowden, Assistant District Attorney, for appellee.

2. The appellant contends that the trial court erred in allowing the arresting officer to express the opinion that he (the appellant) had not blown into the intoximeter machine. The officer had been present when the intoximeter operator attempted to test the appellant; and, although not certified himself, he testified that he had observed this particular machine in use approximately 600 times. Based on his observations and experience, he then testified that in his opinion the appellant was not supplying the machine with air.

“To qualify as an expert, generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study.” Bowden v. State, 239 Ga. 821, 826 (238 SE2d 905) (1977). See also OCGA § 24-9-67. We hold that the state established a sufficient foundation to enable the witness to offer an opinion with respect to the limited issue under consideration, with any deficiencies in his training going to the weight to be afforded his testimony rather than its admissibility.

3. The appellant contends that the trial court erred in charging the jury on the rebuttable presumptions set forth in OCGA § 40-6-392 (b). However, it appears that the appellant’s counsel waived the right to raise this issue on appeal by responding in the negative when asked, at the conclusion of the charge, whether there were any objections thereto. See Wadley v. State, 257 Ga. 280, 281 (357 SE2d 588) (1987).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75738.
    TAYLOR v. CITIZENS BANK.
    (365 SE2d 511)
   Banke, Presiding Judge.

Edward Taylor brought suit against The Citizens Bank to recover for injuries which he allegedly sustained when he slipped and fell on an icy sidewalk located on the bank’s premises. He brings this appeal from a judgment entered on a jury verdict in favor of the bank.

The evidence showed that on the day in question two employees of the bank had cleared a mixture of snow and ice from the sidewalk, which led to the bank’s entrance from the parking lot. The appellant testified that he had successfully negotiated the sidewalk on his way into the bank but that upon his return to the parking lot he slipped and fell on a patch of ice which was not visible unless a person “stooped down” and viewed it from a particular angle. Held:

Decided January 28, 1988.

Charles W. Smith, Jr., for appellant.

1. The appellant enumerates as error the trial court’s charge on the doctrine of assumption of risk, contending that there was no evidence to suggest that he had been aware of the specific hazard which precipitated his fall. However, the appellant’s own testimony at trial established that he had in fact been aware of the general presence of ice, snow, and slush on the ground and had also been aware of the freezing temperature. Consequently, we find this enumeration of error to be without merit. See Telligman v. Monumental Properties, 172 Ga. App. 783 (323 SE2d 888) (1984).

2. The appellant complains of the trial court’s failure to give his requested charge concerning an owner’s duty to invitees with respect to the removal of hazardous conditions. The record reflects that the jury was adequately instructed on the basic principles at issue. Consequently, this enumeration is also without merit.

3. In his third and fourth enumerations of error, the appellant contends that the verdict and judgment were contrary to the evidence. “The role of the appellate court is not to pass on the weight of the evidence but the sufficiency.” Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 62 (250 SE2d 851) (1978). As previously indicated, there was evidence that the appellant had been cognizant of the presence of ice and snow on the ground prior to his fall and that he had also been aware that the outside temperature was at or below freezing. Moreover, it was shown that the appellant had traversed the walkway in question upon entering the bank prior to his fall. The true ground of a proprietor’s liability for an injury to an invitee resulting from the existence of a hazardous condition on the premises is his superior knowledge of the hazard. Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669) (1987). “ ‘An invitee is under an equal duty with the owner to use [his] sight to discover any defect or dangers.’ ” Id. at 574. The evidence in this case was amply sufficient to support a determination that the appellant’s knowledge of the hazard was at least equal to that of the appellee. Consequently, the jury’s verdict was not without evidentiary support.

Judgment affirmed.

Carley, and Benham, JJ., concur.

Weymon H. Forrester, for appellee.


text:
    75747.
    CHESTER v. THE STATE.
    (365 SE2d 513)
   Banke, Presiding Judge.

The appellant and a co-defendant, Rodney Antonio Browning, were indicted for armed robbery and aggravated assault. Browning pled guilty to the charges, while the appellant was found guilty by a jury. This appeal is from the denial of the appellant’s motion for new trial.

The evidence, construed in the light most favorable to the verdict, may be summarized as follows: The appellant and Browning both attended an Atlanta high school where the victim, Sedrick Moore, was employed as a bus driver and assistant coach. On the evening of February 13, 1987, they attended a party at a private residence where Moore was present as a chaperone. Later in the evening, Moore agreed to give the appellant and Browning a ride home. On the way home, Browning pulled a gun on Moore and directed him to drive to a nearby wooded area, where he then shot him, hitting him in the arm and stomach, and thereafter demanded and received his wallet, watch, and jewelry. The appellant, who was standing behind Browning when this shooting occurred, told Browning that they could not let Moore go but would have to kill him. The appellant then took the gun, hit Moore over the head with it, and shot him in the leg. Later, Browning shot Moore again behind the ear. A struggle then ensued, during which Moore grabbed the gun and fired twice, hitting both Browning and the appellant.

The appellant and Browning fled; and Moore drove out to the street, where he was able to summon the police. While Moore was at a hospital being treated for his wounds, the appellant and Browning were brought in by a friend for treatment of their wounds. Initially, the appellant told the police he had been shot at a party. However, after two bullets were discovered in his pants pocket during a search conducted incident to his arrest, he changed his story, admitting that he had left the party with Moore and Browning and stating that he had been shot by Moore in the aftermath of confrontation between Moore and Browning.

Moore’s wallet and papers were recovered by police at the scene of the incident. Browning testified at trial that the appellant had obtained the gun from a man named Tony, that Moore had made homosexual advances towards the two of them while giving them a ride home from the party, and that he and the appellant had decided at that time to rob him. The appellant admitted having been present at the scene but denied participating in either the robbery or the shooting. Held:

Decided January 28, 1988.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Assistant District Attorney, for appellee.

1. The appellant contends that the trial court erred in refusing to allow him to ask Moore the following question: “If it wasn’t for [Browning], it wouldn’t have happened at all, would it?” This enumeration of error is without merit. “The right to a thorough and sifting cross-examination is not abridged where the question propounded calls for a conclusion by the witness. [Cit.]” Dunn v. State, 251 Ga. 731, 733 (3) (309 SE2d 370) (1983). Accord Lord v. State, 173 Ga. App. 419 (3) (326 SE2d 794) (1985). Moreover, a review of the transcript reveals that defense counsel, by subsequently rephrasing the question, was able to elicit from Moore the desired testimony that he thought Browning had instigated the crimes.

2. The appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal on the armed robbery charge, both because the evidence did not establish his participation in the robbery and because, as in Young v. State, 177 Ga. App. 756 (2) (341 SE2d 286) (1986), the evidentiary basis for that conviction was “used up” in proving the aggravated assault. There was ample evidence in the present case from which a rational trier of fact could have determined beyond a reasonable doubt both that the appellant was a party to the robbery and that he personally shot Moore after the robbery was completed. Consequently, the evidence was sufficient to support his convictions on both counts of the indictment. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Benham, Judge.

text:
    75177.
    JORDAN v. THE STATE.
    (365 SE2d 448)
   Benham, Judge.

In her appeal from her conviction for trafficking in cocaine, appellant enumerates as error only the denial of her motion to suppress. She contends that the trial court was bound by the evidence to find that the exigent circumstances under which her car was searched were manufactured and that she did not consent to the search of her car. We cannot agree with that contention.

Decided January 4, 1988

Rehearing denied January 29, 1988

Lee Sexton, for appellant.

Frank C. Winn, District Attorney, David McDade, Assistant District Attorney, for appellee.

The arresting officer testified that an informant, working with the police, arranged to buy cocaine from appellant. Police officers followed appellant from her home in Cobb County into Douglas County, where the sale was to occur. On the way to the expected sale, the officers became concerned that appellant had detected their presence. The arresting officer testified that he then pulled up behind appellant’s car and observed appellant and her companion sharing a cigarette which the officer suspected to be marijuana. He pulled up beside appellant’s car and observed appellant’s companion hold the cigarette down as though she were concealing it. The car was then stopped. The officer testified that another officer provided and had appellant sign a form in which she consented to a search of her car, reciting that she was aware of her right to refuse consent for the search. The arresting officer also testified that appellant was under no coercion at all when she gave consent for the search. The consent form was admitted into evidence. The officer was the only witness at the hearing on the motion to suppress.

“ ‘The trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.’ [Cits.]” Wilson v. State, 179 Ga. App. 780 (1) (347 SE2d 709) (1986). The evidence at the hearing in this case authorized the trial court to find that the consent to search was valid. That finding was sufficient to authorize denial of appellant’s motion to suppress. Id. We find no error.

Judgment affirmed.

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


author: Carley, Judge.

text:
    75417.
    CROLLEY et al. v. JOHNSON.
    (365 SE2d 277)
   Carley, Judge.

Appellee-plaintiff filed suit against appellant-defendants. Appellant Crolley never filed an answer and the answer that was filed by appellant American Communities Corporation was stricken upon its failure to appear at the scheduled trial of the action. After holding that both appellants had been in default for the requisite period of time, the trial court permitted appellee to “establish the amount of damages before [it sitting] without a jury. . . .” OCGA § 9-11-55 (a). Thereafter, on December 12,' 1986, the trial court entered a default judgment in favor of appellee and against appellants, correctly making findings of fact and conclusions of law based upon the evidence that it had previously heard as to the issue of damages. See Marsh v. Way, 170 Ga. App. 300 (316 SE2d 599) (1984).

Within thirty days of the entry of this default judgment, appellants neither filed a notice of appeal as would have been authorized by OCGA § 5-6-34 nor did they file a motion “for new trial in respect of [the trial court’s award of] damages” as would have been authorized by OCGA § 9-11-55 (a). As the issue of appellants’ liability to appellee had been established by default, it was only the damages portion of the judgment which had been based on evidence and, consequently, it was only that portion of the judgment which could be subject to a motion for new trial. See OCGA § 9-11-55 (a). See also Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526) (1987). Instead, on December 8,1986, some four days before the default judgment had actually been entered, appellants filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d), asserting that they had not received notice of the trial date. See generally Beach's Constr. Co. v. Moss, 168 Ga. App. 462 (1) (309 SE2d 382) (1983). Then, on March 23, 1987, which was some three months after the trial court’s entry of the default judgment, appellants filed a pleading that they denominated as their “Amendment to Motion to Set Aside Judgment and Motion for New Trial.” On April 9, 1987, the trial court entered an order which denied appellants’ motion, as amended, to set aside the judgment and which also denied appellants’ motion for new trial. On May 1,1987, which was within 30 days thereafter, appellants initiated this direct appeal by filing a notice of appeal from the trial court’s order denying their motions for new trial and to set aside the judgment.

This court has no jurisdiction over appellants’ direct appeal from the December 12, 1986 judgment itself or from the trial court’s denial of appellants’ motion for new trial as to that judgment. Appellants’ only motion for new trial was filed more than three months after the judgment had been entered. “Judgment in this matter was entered on December [12, 1986]. Motion for new trial was filed on [March 23, 1987]. As the motion for new trial was untimely filed, [only] the trial court’s dismissal of that motion [would have been] proper. Notice of appeal was filed [May 1, 1987]. Since the untimely filing of the motion for new trial did not toll the time for filing the notice of appeal [from the judgment], this appeal [must] also [be] dismissed as untimely. [Cit.]” Williamson v. State, 182 Ga. App. 49 (354 SE2d 868) (1987). “ ‘ [Everything that occurred subsequent to the 30-day period after entry of the [default] judgment. . . was a nullity, including the present appeal from the ruling on the void [motion for new trial]. . . .’ [Cit.]” Smith v. Forrester, 145 Ga. App. 281, 283 (243 SE2d 575) (1978). None of the cases that are relied upon by appellants would compel a contrary result. “While [those] cases appear at first blush to control the case sub judice, a closer examination reveals that the motions [for new trial] with which the courts there dealt, were void because they were not prosecuted or were made prematurely (i.e., before the entry of the judgment). None was filed late. . . . [The] late filing of [a] notice of [appeal] is still jurisdictional. . . .” (Emphasis in original.) Venable v. Block, 141 Ga. App. 523, 524 (233 SE2d 878) (1977).

Decided January 6, 1988

Rehearing denied January 29, 1988.

Irma B. Glover, D. Victor Reynolds, for appellants.

Mike Treadaway, for appellee.

The only motion that appellants ever filed prematurely rather than belatedly was a motion to set aside pursuant to OCGA § 9-11-60 (d). Assuming without deciding that, by analogy to a motion for new trial, the filing of a motion to set aside, although premature, is nevertheless sufficient to invoke a ruling by the trial court thereon subsequent to its entry of the underlying judgment, the trial court’s denial of appellants’ prematurely filed motion to set aside, as subsequently amended, would not be directly appealable. See OCGA § 5-6-35 (a) (8). Although appellants’ notice of appeal was timely filed within thirty days of the denial of their motion to set aside, as amended, appellants did not comply with the applicable discretionary appeals provisions of OCGA § 5-6-35. Accordingly, insofar as appellants seek to bring a direct appeal from the trial court’s order of April 9, 1987 denying their motion to set aside the default judgment that had been entered against them on December 12, 1986, this court is without jurisdiction. “Appeals from the denial of such motions are discretionary and appellants] did not follow the applicable procedure to secure appellate review of the denial of [their] motion. [Cits.]” Lewis v. Sun Mgt., supra.

Appeal dismissed.

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


text:
    75430.
    O'QUINN v. BUNKLEY.
    (365 SE2d 460)
   Benham, Judge.

The trial court granted the petition of adoption filed by appellant O’Quinn, the maternal grandmother of O. L. B., and terminated the parental rights of appellee Bunkley, the child’s father. The trial court’s judgment also ordered “broad and reasonable visitation privileges with said child” for the maternal grandfather and paternal grandparents. Appellee initially filed an appeal from the judgment of the trial court, and this appeal was filed by appellant as a cross-appeal. OCGA § 5-6-38. Appellee later withdrew his appeal, leaving only the merits of appellant’s appeal before this court.

Decided January 12, 1988

Rehearing denied January 29, 1988

Robert P. Killian, for appellant.

Evelyn H. Johnson, for appellee.

Appellant contends the trial court erred in granting visitation rights to the paternal grandparents, who had not intervened in the termination/adoption proceeding. Thus, “[tjhey were not parties to the action, nor were they otherwise before the trial court. Since they were not properly before the court in any capacity whatsoever, they were not entitled to be granted relief. [Cits.] Accordingly, the trial court erred in awarding visitation rights to [the paternal grandparents].” Smith v. Smith, 174 Ga. App. 903 (2) (332 SE2d 41) (1985). Furthermore, the adoption decree, which terminated the legal relationships between the adoptee and her relatives (OCGA § 19-8-14), “clearly eliminate [d] any claim of right to visitation with the adopted child by a former relative.” Mitchell v. Erdmier, 253 Ga. 335 (320 SE2d 163) (1984). Since the child’s adoption does not fit into any category in which grandparents’ visitation rights survive, the trial court erred in sua sponte providing visitation rights to the child’s former paternal grandparents. Id. at 336. That portion of the trial court’s judgment must be stricken. Although the adoption and termination of parental rights is affirmed, the portion of the judgment granting visitation rights to the former paternal grandparents must be reversed.

Judgment affirmed in part and reversed in part.

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


text:
    75456.
    THE STATE v. MADDOX.
    (365 SE2d 516)
   Birdsong, Chief Judge.

This is an appeal from an order of the trial judge of the State Court of DeKalb County granting appellee/defendant’s plea of former jeopardy and dismissing the pending accusation.

During a jury trial, Officer Gene B. Ashley, a member of the DeKalb County DUI task force, when being examined by the prosecution concerning another matter, interjected testimony that appellee had received two previous DUIs. The trial judge granted appellee/defendant’s motion for a mistrial. Thereafter, appellee/defendant filed a plea of former jeopardy. The State appeals the trial judge’s order granting this plea.

In his order, the trial judge made the following pertinent findings of fact: (a) the officer was experienced and has testified before the court on almost a weekly basis; (b) his testimony regarding appellee/ defendant’s criminal record was “totally unresponsive” to the question posed by the prosecutor; (c) the result was dramatic; (d) the only response by the State to the mistrial motion was to state that the officer “had been specifically instructed not to mention the prior conviction”; (e) the officer “is just as much an agent of the State as the assistant solicitor”; and (f) no rationale or justification has ever been offered for the officer’s testimony, “[n]or did the officer appear particularly disturbed or apologetic over the results of his action.” The trial judge also presumed that in the absence of any explanation of Officer Ashley’s conduct “that he was deliberately attempting to cause a mistrial.”

We fully understand the trial judge’s dilemma and his well-founded desire to stop what initially appears in this record (as confirmed by the trial judge’s fact findings) to be a blatant disregard by the officer for the fair trial rights of the accused. Wynn v. State, 147 Ga. App. 805, 806 (250 SE2d 530). The ultimate issue, however, is should the prosecution arm of the State be penalized for the unexpected and unsolicited conduct of an agent of the State’s law enforcement community.

If a defendant moves for a mistrial and the motion is granted, normally he may be tried again. Studyuent v. State, 153 Ga. App. 161 (264 SE2d 695); accord Morris v. State, 180 Ga. App. 896 (350 SE2d 851). However, there exists a “narrow exception” to the rule that double jeopardy will not bar retrial in such instances. Oregon v. Kennedy, 456 U. S. 667, 673 (102 SC 2083, 72 LE2d 416). Thus, if a mistrial is granted on the grounds of prosecutorial overreaching and such was motivated by bad faith on the part of the prosecuting attorney or with the intention to harass or prejudice the defendant, for example, by successive prosecutions or by declaration of a mistrial in order to afford the prosecution with a more favorable opportunity to convict, then a defendant’s retrial is barred. Morris v. State, supra; Oregon v. Kennedy, supra at 672-679. Under this exception, it is “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676.

While we agree with the trial judge that the officer is an agent of the State, it seems abundantly clear that this agency differs from that of a prosecutor. The officer and the prosecutor have different scopes of employment and authority; their responsibilities are different per se. In our view, the “narrow exception,” above articulated, was not meant to be extended to embrace conduct other than that of the judge and the prosecutor. Therefore, in the absence of a showing that the prosecutor in this case actively aided, counselled, or became a willing party to the error generated by the officer, we see no reason to bar appellee/defendant’s retrial. The pertinent evidence in this case is uncontroverted in establishing that the prosecutor was taken by complete surprise by the police officer’s unresponsive reply to a proper question. Further, the record reflects that the prosecutor previously warned the witness not to reveal appellee’s prior criminal record. Thus, this is not the type of case warranting extension of the limited exception and application of the retrial bar.

Further, assuming we were to impute the officer’s conduct to the prosecutor in this instance, the narrow exception might still not be available to the appellee. From the state of the record, we have grave reservation as to whether the officer was intending to “goad” the appellee into moving for a mistrial in order to obtain some sort of prosecutorial advantage. See generally Oregon v. Kennedy, supra at 676; cf. Fugitt v. State, 253 Ga. 311, 316 (319 SE2d 829) (the evidence does not show that any alleged incident of harassment was intended to subvert the protections of the double jeopardy clause). Rather, it appears that the officer was attempting to place the prohibited evidence before the jury to enhance the likelihood of appellee’s conviction. “Mistrial” is a proper remedy to use to negate the potentially prejudicial effect of such evidence when a curative instruction will not suffice. We see no need to add gratuitously the extreme sanction of double jeopardy in the absence of genuine prosecutorial overreaching or similar judicial conduct.

We are satisfied that upon retrial the conduct of the officer can be adequately controlled by a timely order to the witness by the trial judge to refrain from any form of repetition of such testimony. See, e.g., OCGA § 16-1-4. Such a procedure should adequately protect the fair trial rights of the appellee on retrial.

Whether the officer’s conduct has resulted in delay chargeable to the prosecution upon retrial, or whether the appellee has another avenue available to him to seek compensation for the conduct of the officer are matters currently not before this court. Suffice it to say, that the appellee’s remedy does not lie under the protective mantle of double jeopardy.

Judgment reversed.

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

Decided January 29, 1988.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Assistant Solicitor, for appellant.

Casper Rich, for appellee.


text:
    75468.
    SHAPIRO v. SOUTHERN CAN COMPANY et al.
    (365 SE2d 518)
   McMurray, Presiding Judge.

Appellant Shapiro filed suit on November 14, 1985, alleging that in reliance upon representations made by appellees he had agreed to enter into a special pension plan, effective October 1, 1974, until such time as he was eligible to be covered under the company’s formal pension plan, and was thereby induced to cease active, full-time employment with the company. The complaint further alleged that on or about September 17, 1981, appellant was notified that his special pension would be terminated in December of 1981, and that he would not be eligible for coverage under the formal company pension plan. Asserting that the wilful and intentionally false and misleading statements made to him constituted violations of the Georgia law of fraud, deceit, misrepresentation of fact and concealment of fact, appellant demanded compensatory damages in the amount of $100,000 and exemplary damages in the amount of $1 million, and attorney fees and costs of litigation.

Appellees filed responses, including the defense of the statute of limitation. Appellant testified at trial that he thought he had a lifetime pension with the company and that the letter he received dated September 17, 1981, was his first notice to the contrary. At the close of the evidence appellees moved for directed verdict, which was granted and judgment entered on the basis that appellant failed to prove the essential elements of fraud and that the action was barred by the four-year limitation under OCGA § 9-3-31. Appeal is brought from this judgment. Held:

Appellant first argues that the applicable statute of limitation is six years pursuant to OCGA § 9-3-24, which governs actions on simple written contracts. However, the suit was not brought as a breach of contract action, nor was it tried as one. It was purely a fraud action, which “locked [appellant] into the position of asserting a tort claim and [he] must stand or fall based on that theory. [Cits.]” Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 621 (347 SE2d 670) (1986). In such an action “the period of limitation is the same as that for the recovery of personal property — four years. [OCGA § 9-3-31 and cits.]” O'Callaghan v. Bank of Eastman, 180 Ga. 812, 819 (180 SE 847) (1935).

Decided January 29, 1988.

Edwin Marger, for appellant.

Richard C. Sutton, for appellees.

Appellant nevertheless insists that recovery is not barred by a four-year statute of limitation because the time for calculating the period would not begin until December 31, 1981, when the special pension payments would terminate, rather than on September 17, 1981, the date of the letter notifying him of that fact, which the court used in calculating the statutory period. This interpretation of the rule that a statute of limitation begins to run on the date a cause of action on a claim accrues is not in compliance with the test adopted by the Georgia appellate courts as set forth in Mobley v. Murray County, 178 Ga. 388 (173 SE 680), to-wit: “[T]he true test to determine when the cause of action accrued is ‘to ascertain the time when the plaintiff could first have maintained his action to a successful result’ ... A right of action has its inception from the time there has been a breach of duty; and this would entitle the party to file a suit for the breach, without regard to whether any actual damage had in fact resulted.’ ” Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 806 (273 SE2d 16) (1980); Adams v. Emory Univ. Clinic, 179 Ga. App. 620, supra. September 17, 1981, was the date that appellant first learned of the alleged fraud and deception perpetrated by appellees in inducing him to agree to the special pension arrangement. The period of limitation runs from the time of the plaintiff’s discovery of the alleged fraud. OCGA § 9-3-96; Gerald v. Doran, 169 Ga. App. 22 (311 SE2d 225) (1983); Sears, Roebuck & Co. v. Green, 142 Ga. App. 770 (237 SE2d 10) (1977). Accord Leathers v. Timex Corp., 174 Ga. App. 430 (2) (330 SE2d 102) (1985). Since appellant’s suit was not filed until November 14, 1985, it was not initiated within four years of his discovery of the alleged fraud and appellees’ motion for directed verdict was properly granted.

Judgment affirmed.

Sognier and Beasley, JJ., concur.