text:
    75552.
    McKnight v. Golden Isles Marina, Inc.
    (366 SE2d 830)
   Carley, Judge.

In March of 1984, appellant-plaintiff entered into a contract to purchase a yet-to-be constructed condominium unit from appellee-defendant. It is undisputed that contemporaneous with his entry into the contract or within a short time thereafter, appellant was provided with a copy of the floor plan of the unit which he had agreed to purchase. See OCGA § 44-3-111 (b) (1). Printed on the copy of this floor plan which appellee provided to appellant was the following: “Heated, 1,420 S[quare] F[eet].”

In September of 1985, appellant filed this action against appellee. In his complaint, appellant asserted that his contract with appellee was voidable pursuant to OCGA § 44-3-111 and he sought the return of his deposit, interest, and attorney’s fees. The basis upon which appellant asserted that the contract was voidable was, insofar as it is relevant to this appeal, that the condominium unit contained only 1,394.7 rather than 1,420 square feet. Appellee answered, denying the material allegations of appellant’s complaint, and appellee subsequently moved for summary judgment in its favor. The trial court granted appellee’s motion and appellant appeals from the grant of summary judgment in favor of appellee.

1. Appellant predicates an enumeration of error upon appellee’s failure to comply with that portion of Rule 6.5 of the Uniform Superior Court Rules which provides that “there shall be annexed to the notice of motion [for summary judgment] a separate, short and concise statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried.”

The record shows that appellee’s motion itself contained a clear and concise statement of the relevant contentions. Accordingly, the “failure to file a separate pleading resulted in no confusion or disadvantage to [appellant] in defending the motion.” Martin v. Wilson, 184 Ga. App. 196 (2) (361 SE2d 209) (1987). This enumeration of error is without merit.

2. Appellant enumerates as error the grant of appellee’s motion, contending, in essence, that a genuine issue of fact remains as to his right to void the contract pursuant to OCGA § 44-3-111 (c) (1): “Any covered contract shall be voidable by the buyer until at least seven days after the seller has furnished to the buyer all of the items required to be furnished [pursuant to subsection (b) of OCGA § 44-3-111]. . . .”

Appellant’s reliance upon OCGA § 44-3-111 (c) (1) is misplaced. That provision provides that a condominium purchaser has an absolute right to void his contract within a “cooling off” period of at least seven days after his receipt of specified materials which contain information relevant to his purchase. It is undisputed, however, that appellant received the specified materials but he did not exercise his right to void the contract within the seven-day period. Contrary to appellant’s assertions, OCGA § 44-3-111 does not entitle him to an additional seven-day period after all subsequent amendments to the condominium declaration. “Any covered contract shall be voidable by the buyer until at least seven days after the seller has furnished to the prospective buyer ... A copy of the declaration and of each amendment thereto as of that time. . . .” (Emphasis supplied.) OCGA § 44-3-111 (b) (2). See OCGA § 44-3-111 (d), which relates to a subsequent change in the terms of the original materials furnished to a prospective buyer.

If appellant has any right to void the contract pursuant to OCGA § 44-3-111, it would only be pursuant to subsections (i) and (j) rather than to subsection (c) of that statutory provision. “Any person who, in reasonable reliance upon any false or misleading material statement or information published by or under authority from the seller in advertising and promotional materials, including but not limited to, the items required to be furnished by this Code section, . . . pays anything of value toward the purchase of a condominium unit located in this state shall be entitled to bring an action against the seller for damages. . . .” (Emphasis supplied.) OCGA § 44-3-111 (i). “Any person who has a right of action for damages . . . shall have the additional right to rescind any contract for the purchase of a condominium unit at any time prior to the closing of the transaction.” (Emphasis supplied.) OCGA § 44-3-111 (j). Accordingly, the question becomes whether a genuine issue remains as to the existence of any false or misleading material statements or information provided by appellee to appellant regarding the condominium unit that he had contracted to purchase.

The evidence is undisputed that the condominium unit which appellee constructed actually contains 1,420 square feet of heated space, exactly as had been represented on the floor plan which had been furnished to appellant. According to the affidavit of appellee’s expert, the area of heated space in “condominiums or other structures which have or share a common wall, ... is calculated by measuring to the exterior surface of exterior walls and to the center line of common walls. This method is the normal, customary and standard method of calculating area of buildings in the United States in that the insulation within the walls must be heated and cooled, and it is necessary to determine the total area or size to be heated and cooled to provide effective temperature control and to determine the size of the heating and cooling equipment needed for any individual dwelling or building.” The undisputed evidence of record also shows that appellant had calculated the area of accessible space in the unit and had arrived at the figures of 1,394.7 square feet by measuring from the interior surfaces of the unit’s interior walls. However, according to the uncontradicted testimony of appellee’s expert, “[s]uch calculation [of the accessible area as appellant had made of his unit] would not be the customary or standard used in determining square footage.” Thus, appellant was provided with a floor plan which indicated that the unit would contain 1,420 square feet of heated space. As built, the unit actually contained 1,420 square feet of heated space, of which approximately 1,394.7 square feet of area would actually be accessible to its occupant. It follows that the floor plan which was provided to appellant by appellee contained no “false or misleading material statement or information. . . .”

Decided March 4, 1988.

John T. McKnight, pro se.

G. Carroll Palmatary, for appellee.

Although the unit which appellant contracted to buy did contain 1,420 square feet of heated space, the original condominium declaration, as worded, provided that it was only the area between the interior walls which was to be owned in fee simple by a prospective buyer. However, the original condominium declaration was subsequently amended to provide that all of the 1,420 square feet of heated space was to be owned in fee simple. This subsequent amendment did not relate to any “false or misleading material statement or information” contained in the original declaration which appellee provided to appellant. It was, if anything, a beneficial change to purchasers. The amendment increased the total amount of square footage to which appellant would have actual ownership. Pursuant to the amendment, appellant’s fee simple ownership of the unit was made co-extensive with the 1,420 total square footage of the heated area of which it was comprised and was no longer co-extensive with the mere 1,394.7 square feet of accessible area. The trial court did not err in granting summary judgment in favor of appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    75711.
    GARY v. THE STATE.
    (366 SE2d 833)
    Decided March 4, 1988.

      Timothy W. Floyd, Sara F. Miller, Donald T. Wells, Jr., for appellant.

      Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant appeals his conviction for theft by shoplifting after being sentenced as a recidivist under the authority of OCGA § 16-8-14 (b) (1) (C). Held:

In his sole enumeration of error, defendant contends the trial court erred in dismissing the jury after a verdict had been rendered and making a determination without the intervention of a jury as to the recidivist counts of the indictment. This contention is without merit.

In cases such as the one sub judice, “the trial court alone determines the punishment to be imposed. See OCGA § 17-10-2 (Code Ann. § 27-2503). Since recidivism is an issue only in the sentencing phase of a trial (see Parrish v. State, 160 Ga. App. 601 (7) (287 SE2d 603) (1981)), it follows that defendant had no right to a jury determination of this issue. See Jackson v. State, 158 Ga. App. 702 (6) (282 SE2d 181) (1981).” LaPalme v. State, 169 Ga. App. 540, 541 (4) (313 SE2d 729).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    75461.
    WRIGHT v. THE STATE.
    (366 SE2d 834)
   Sognier, Judge.

Appellant was convicted of rape and possession of a firearm by a convicted felon. He appeals from the trial court’s denial of his motion for a new trial.

1. Appellant contends that the trial court erred when, during the Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), hearing held to ascertain the voluntariness of two oral admissions and a written confession made by appellant, the trial court admitted documentary evidence reflecting appellant had previously pled guilty in eight prior convictions. During the hearing, the State questioned appellant without objection about his dozen or so earlier arrests, his awareness of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)), and his waiver or refusal to waive those rights in the course of those earlier arrests. After appellant identified the eight prior convictions, the State’s motion to introduce those convictions into evidence was objected to by appellant’s counsel on the basis that the convictions were not relevant since appellant had not put his good character into issue. The trial court, after discussing why such evidence of prior convictions may not be admissible during the trial of the case, noted that those considerations did not exist in the JacksonDenno hearing and admitted the documents. This evidence was not presented to the jury. The trial court subsequently ruled that the two oral statements could be admitted at trial but excluded the written confession.

We find no error in the trial court’s admission of this evidence. In Rachals v. State, 258 Ga. 48 (364 SE2d 867) (1988), the Supreme Court, in considering the admissibility of certain psychiatric testimony in a Jackson-Denno hearing, noted that “because none of the questioned testimony was presented to the jury, [the appellant] could not have been harmed.” Id. at 48, fn. 2. Further, considering that the trial court, sitting as trier of fact, is presumed to ignore illegal evidence and consider only legal evidence in rendering its decision, see Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755) (1983), we find that appellant’s enumeration regarding the admission of this evidence does not present this court with any reversible error.

2. (a) We find no error in the admission during trial of the computer printout made by police identifying the license plate number recorded by a witness who observed appellant leaving the scene of the rape by driving away in a vehicle bearing that number. The investigating officer who ran the tag number through the computer testified that it was through questioning the person listed as the registered owner of the vehicle that the police first learned that appellant had recently purchased the vehicle. Objection was made to the admission of this printout on the basis that it was not “directly relevant” to the guilt or innocence of appellant. “Where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to determination by the jury. [Cit.]” Houston v. State, 180 Ga. App. 267, 268 (3 b) (349 SE2d 228) (1986).

(b) Appellant next contends the trial court erred by admitting into evidence a document signed by the victim stating that out of the six photographs she had been shown, she had identified one certain photograph (that of appellant) as being the person who raped her. Since both the victim and the detective who prepared and displayed the photographic lineup to the victim testified that the victim identified the photograph of appellant from this lineup, the admission of this document was merely cumulative of other evidence and thus not ground for reversal. Caston v. State, 178 Ga. App. 752, 754 (1) (344 SE2d 725) (1986).

Decided March 7, 1988.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Barbara B. Conroy, Assistant District Attorneys, for appellee.

(c) Appellant objected on the ground of relevancy to the admission of a floral shop receipt after the State’s witness, the floral shop owner, testified that she could tell from the receipt that appellant had delivered flowers to the apartment complex where the victim worked three weeks prior to the rape. “[T]he issue as to the relevancy and materiality of evidence is for the trial court. Indeed, any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. [Cits.] ‘Ultimately, the relevance of evidence is “addressed to the jury’s determination.” [Cit.]’ [Cits.]” Guest v. State, 155 Ga. App. 374, 375 (1) (270 SE2d 904) (1980). We find no reversible error.

3. Appellant’s remaining enumerations contend error in the trial court’s failure to give three requested charges.

(a) The trial court’s charge on witness identification clearly explained the principle contained in appellant’s Request to Charge No. 15 and thus the trial court did not err by failing to give the charge in the precise language requested by appellant. Curtis v. State, 182 Ga. App. 388, 389-390 (6) (355 SE2d 741) (1987).

(b) Appellant’s fourth enumeration has been decided adversely to him in Overton v. State, 230 Ga. 830, 834 (3) (199 SE2d 205) (1973).

(c) We cannot perceive how the trial court’s refusal to give a charge setting forth an alternate ground for the admissibility of certain evidence presented by the State could possibly have been harmful to appellant. It is an old and sound rule that harm as well as error must be shown to authorize a reversal by this court. Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987).

Judgment affirmed.

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


text:
    75471.
    MAYFIELD v. THE STATE.
    (566 SE2d 836)
   Sognier, Judge.

Oliver Mayfield brings this appeal from his convictions of trafficking in cocaine and possession of marijuana with intent to distribute.

Appellant contends in his sole enumeration of error that the trial court erred by denying his motion to suppress and for the return of property. In the hearing on the motion, evidence was adduced that on the night of January 8, 1987, Georgia State Patrolman Larry Bennett observed a vehicle, travelling north on Interstate 95 ahead of him, change lanes without using any signal lamps in the process of passing a tractor-trailer truck. Due to the darkness, Trooper Bennett could not tell whether hand signals were used. The trooper stopped the vehicle, a rental car with a paper license tag, which was driven by appellant, its sole occupant. After checking appellant’s South Carolina driver’s license and the rental car contract under which appellant was a listed driver, Trooper Bennett advised appellant that he had been stopped both for improper lane changes and for the purpose of checking the registration of the vehicle since the displayed tag was not any type of legal tag. Trooper Bennett, who was the sole officer at the scene, requested appellant’s permission to look in the trunk of the automobile. Appellant agreed and opened the trunk, revealing two tote bags and a box covered by a blanket. The evidence conflicts whether appellant authorized Trooper Bennett to move the blanket, but both appellant and Trooper Bennett testified that appellant refused to allow the trooper to look inside the box itself. Upon appellant’s withdrawal of his consent, Trooper Bennett immediately ceased searching the trunk. The trooper then told appellant to shut the trunk and to follow him to the sheriffs office where appellant could post his bond for the improper lane change offense. The testimony by Trooper Bennett and appellant is in direct contradiction at this point whether or not the trooper thereafter told appellant that a search warrant would be obtained upon their arrival at the sheriff’s office. Both agree, however, that appellant did not shut the trunk but instead stated to the trooper to go ahead and look, “you’re going to search my car anyway.” Trooper Bennett opened the box, revealing several jars containing a leafy material which appellant identified to the trooper as marijuana. Appellant was then placed under arrest for both the improper lane changes and the marijuana possession and Trooper Bennett completed his search of the trunk, finding in the two tote bags a material later identified as cocaine. Trooper Bennett estimated that at most 6 to 8 minutes elapsed between the time of the stop to the time he looked into the box containing the marijuana.

The trial court did not err by denying the motion to suppress. We do not agree with appellant’s argument that Trooper Bennett could not legally have stopped appellant for changing lanes in violation of OCGA § 40-6-123 (b). In the absence of any signal visible in the darkness, the trooper had probable cause to stop the vehicle for a possible violation of OCGA § 40-6-123 (b) and was not obligated to assume appellant had vainly indicated such lane changes by means of hand and arm signals, the alternate method for signalling lane changes as provided for in OCGA § 40-6-124 (a). We note that appellant admitted in the hearing on the motion to suppress that he did not, in fact, signal his lane changes.

Decided March 7, 1988.

Grayson P. Lane, for appellant.

Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Assis tant District Attorney, for appellee.

While Trooper Bennett may not have had probable cause to search appellant’s vehicle, as appellant argues, it is well established that “ ‘ “[p]robable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent.” [Cits.]’ ” Wilson v. State, 179 Ga. App. 780, 781-782 (1) (347 SE2d 709) (1986). The evidence here indicates that appellant, an adult of average intelligence, was asked by a solitary state trooper during a 6-to-8-minute period to allow the trooper to search the trunk of appellant’s vehicle. The record is devoid of any trace of physical coercion of appellant and the only evidence of mental coercion lies in the contested evidence regarding whether the trooper “threatened” appellant with a search warrant. The trial court determined that while appellant may have consented to the search because of feelings in his own mind that a search warrant could and would be obtained, the conflict in the evidence was such that the trial court ruled the consent was voluntary because it was not brought on by any actual threats or promises made by Trooper Bennett. “Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal. [Cit.] The trial judge’s ruling that [appellant] voluntarily consented to the . . . search is supported by the evidence. We find no error.” Dean v. State, 250 Ga. 77, 80 (2a) (295 SE2d 306) (1982).

We do not agree with appellant that Trooper Bennett’s subsequent search of the tote bags in the trunk was improper where the evidence supports a finding that appellant, after revoking his earlier withdrawal of consent to search and telling the trooper to go ahead, placed no limits on the scope of that search. See Bell v. State, 162 Ga. App. 79, 81 (290 SE2d 187) (1982). Appellant’s final argument regarding Trooper Bennett’s failure to advise him that he could withhold his consent to the search has long been rejected as not essential to the validity of a consent to search a car. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). Also, we note that appellant’s refusal to allow the trooper to view the contents of the box, although subsequently revoked, indicates appellant was well aware of his right to refuse to consent to a search.

Judgment affirmed.

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


text:
    75492.
    75533.
    SPIVEY v. THE STATE. NICHOLS v. THE STATE.
    (366 SE2d 838)
   Sognier, Judge.

Appellants were tried jointly and convicted of two counts of burglary and possession of a firearm by a convicted felon, and they appeal.

1. Both appellants contend the trial court erred by charging the jury on flight, as there was no evidence of flight. This contention is not supported by the evidence, which disclosed that the two burglaries involved here occurred between 9:00 a.m. and 3:45 p.m., February 13, 1986, in Cobb County, Georgia. On February 16, 1986, appellants were arrested in a motel in Sarasota, Florida, for selling firearms illegally. Police recovered several guns from the trunk of appellants’ car, some of which were later identified as guns stolen from the two burglary victims. Appellants argue that because they did not leave the state until three days after the burglaries, the flight was too remote in time to authorize a charge on flight. This argument has been decided adversely to appellants’ contention. Griffin v. State, 170 Ga. App. 287, 293 (8) (316 SE2d 797) (1984). Further, when there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. Fredericks v. State, 172 Ga. App. 379, 380 (2) (323 SE2d 265) (1984).

Case No. 75492

2. Appellant Spivey alleges error in the trial court’s failure to charge the jury on the lesser included offense of theft by receiving. This enumeration of error is without merit, as theft by receiving is not a lesser included offense of burglary. Breland v. Smith, 247 Ga. 690, 692 (2) (279 SE2d 204) (1981); Holloman v. State, 168 Ga. App. 683 (1) (310 SE2d 734) (1983).

3. Appellant Spivey alleges error in denial of his motion to sever his case from the trial of appellant Nichols. Spivey relies on Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975), in which the court set forth three factors to consider on motions to sever. Those factors are: (1) Will the number of defendants create confusion of the evidence and law applicable to each defendant? (2) Is there a danger that evidence against one defendant will be considered against another defendant despite cautionary instructions by the court? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights?

In the instant case the defendants were alleged to have committed the burglaries together, so the evidence against both was the same, as was the law applicable to the case. There was no evidence admissible against one defendant that was not admissible against the other, with the exception of evidence against each defendant to show that he was a convicted felon. However, those charges (possession of a firearm by a convicted felon) were tried in a bifurcated trial, and would not be cause for a severance of the trial on the burglary charges. Further, there was nothing antagonistic in the defendants’ defenses; both defendants denied committing the burglaries, and both defendants testified they bought the guns found in their car from two men they met in an Atlanta bar. Even if the defenses were considered antagonistic in some minor detail, the mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. Id.; Owens v. State, 251 Ga. 313, 321 (8) (305 SE2d 102) (1983). The decision as to whether the defendants may be tried jointly for a felony less than capital is within the discretion of the judge, OCGA § 17-8-4, and the denial of a motion to sever is not cause for reversal absent an abuse of discretion. Owens, supra, at 320 (8). Under the circumstances here we find no abuse of discretion, and no prejudice resulting to Spivey from being tried jointly with Nichols.

4. Appellant Spivey contends the trial court erred by refusing to grant him additional jury strikes to compensate for being tried jointly with appellant Nichols. In this regard, OCGA § 17-8-4 provides, in pertinent part: “When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. The strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail.” (Emphasis supplied.)

Although appellant states in his brief that each defendant was forced to be tried by a jury partially selected by someone who had a defense antagonistic to his own, we noted in Division 3 that the defenses were not antagonistic. Further, Spivey has not indicated how he was prejudiced by the trial court’s refusal to allow him additional strikes, nor has he shown any abuse of the court’s discretion in denying his request. We find no abuse of discretion here, and accordingly, it was not error to deny Spivey’s request for additional strikes. See Merrill v. State, 130 Ga. App. 745, 750 (3) (b) (204 SE2d 632) (1974); Kirby v. State, 174 Ga. App. 58, 61 (5) (329 SE2d 228) (1985).

Case No. 75533

5. Appellant Nichols contends the trial court erred by failing to give the oath of jury on voir dire to the first panel of twelve jurors, as required by OCGA § 15-12-132. Although the voir dire examination was not recorded completely and we cannot tell whether an oath on voir dire was administered, appellant made no objection to the failure of the court to administer the oath to the first panel. A defendant may forfeit his right to a voir dire conducted under oath by failing to timely assert that right. Gober v. State, 247 Ga. 652, 654 (2) (278 SE2d 386) (1981). “Absent any showing of actual prejudice, we are not inclined to reverse a conviction because the voir dire was not conducted under oath where no objection was made below.” Id. at 655. Appellant has not demonstrated how he was prejudiced in any way by the alleged failure to administer the oath on voir dire to the first panel. Thus, even if no oath was administered, we find he has forfeited his right to a voir dire conducted under oath by failing to object or otherwise timely assert that right.

6. Appellant Nichols also asserts error in the failure of the court to voir dire the first panel of twelve jurors as required by OCGA § 15-12-132. The court reporter testified at the hearing on appellant’s motion for a new trial that as soon as the judge told the jurors that when their names were called to be seated in the jury box, he (the reporter) left the courtroom, because he is not required to take down jury voir dire in a criminal case unless it is a murder case. The reporter did not return until an hour later, when the defense requested that the voir dire be reported. Thus, there is no transcript to reflect whether the statutory questions were or were not asked by the court. However, appellant failed to object, and absent a timely objection, there is no reversible error. Quick v. State, 256 Ga. 780, 783 (3) (b) (353 SE2d 497) (1987).

7. Appellant Nichols alleges the evidence is not sufficient to support his convictions of burglary, and thus, it was error to deny his motion for a new trial as to those two offenses. The evidence disclosed that the two victims in this case, Harold Spivey and Bobby Gunter, were in-laws and lived next door to each other. Their homes were broken into on February 13, 1986, by breaking out windows. Ten guns, several pieces of jewelry, $50 in rolled coins and $125 worth of silver coins, and a bed sheet were taken from Harold Spivey’s home. Twelve guns, a jewelry box containing several pieces of jewelry, two fur coats, a bow and a comforter were taken from Gunter’s home. Both victims knew appellants, as appellant Spivey had lived with Harold Spivey for approximately two years, and both appellants were related to the victims. Appellant Nichols lived in a house just four doors from Harold Spivey. Neither of the victims gave appellants authority to enter their homes or to remove any property.

Decided March 7, 1988.

Linda B. Bor sky, for appellant (case no. 75492).

Roger L. Curry, for appellant (case no. 75533).

Thomas J. Charron, District Attorney, Nancy I. Jordan, Rose L. Wing, Assistant District Attorneys, for appellee.

Appellants were arrested at a motel in Sarasota, Florida, three days after the burglaries occurred, and several guns and a jewelry box containing several pieces of jewelry were found in the trunk of appellants’ car. Some of the guns were identified as belonging to the victims which had been stolen in the burglaries. Both appellants denied committing the burglaries, and testified that they had purchased the guns from two men they met in an Atlanta bar about a week before the burglaries.

Nichols argues that there is no direct evidence connecting him to the burglaries, and his recent possession of the stolen guns was explained by appellants’ testimony. Nichols argues that the circumstantial evidence supporting his convictions of burglary was insufficient to exclude every reasonable hypothesis save that of his guilt. Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is primarily a question for the jury where, as here, the jury has been properly charged on circumstantial evidence. Johnson v. State, 185 Ga. App. 505 (364 SE2d 893) (1988). We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant Nichols’ motion for a new trial on these grounds.

8. Although appellant Spivey makes an extensive argument in his brief as to why the evidence is not sufficient to support his convictions of burglary, he has not enumerated insufficiency of the evidence as error. Nevertheless, our conclusion as to sufficiency of the evidence in appellant Spivey’s case would be the same as that reached in Division 7 as to appellant Nichols.

Judgments affirmed.

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


text:
    75508.
    RAINES v. THE STATE.
    (366 SE2d 841)
   Sognier, Judge.

Appellant was convicted of the offense of trafficking in cocaine and he appeals.

The record reveals that appellant and his traveling companion, Ojo Arewa, were stopped by law enforcement agents while passing through the Atlanta airport en route home to Columbus, Ohio from a three-day trip to Miami. Both consented to a search, and no contraband was found on appellant, who was cooperative, identified himself properly, and produced his airline ticket. The search of Arewa unearthed more than 28 grams of a mixture with a purity of more than 10 percent cocaine. Appellant and Arewa were both arrested and indicted for the offense of trafficking in cocaine. Appellant’s motion to sever his trial from that of Arewa was granted, and prior to appellant’s trial, Arewa was tried and convicted.

1. In his first enumeration of error, appellant asserts the trial court erred by denying his motion for a continuance, sought on the basis that appellant had been unable to obtain the transcript of the testimony Arewa gave at his own trial, which was needed for purposes of cross-examination. “The refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge. [Cits.]” Chesser v. State, 168 Ga. App. 195, 197 (308 SE2d 589) (1983). In the instant case, Arewa’s trial had taken place approximately a month before appellant’s trial, and no evidence was proffered at the hearing on appellant’s motion for continuance, which took place the day before trial, that the transcript had been previously requested. Moreover, Arewa freely admitted both on direct and cross-examination that his testimony against appellant differed substantially from the testimony he gave at his own trial, and stated that his previous testimony had been perjured. Further, when appellant’s case was called for trial, appellant’s counsel announced “ready,” and “the announcement of ready constitutes a waiver of [appellant’s] right to a continuance. [Cit.]” Whatley v. State, 162 Ga. App. 106 (1) (290 SE2d 316) (1982). Under these circumstances, we find no abuse of the trial court’s discretion in denying appellant’s motion for a continuance.

2. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal because the only evidence linking appellant to the crime charged was that of Arewa, an alleged accomplice. See OCGA § 24-4-8. However, the record does not support this contention. Arewa testified that the trip to Florida was instigated by appellant for the purpose of purchasing cocaine, and that the cocaine was bought with appellant’s money. This testimony was corroborated by the testimony of Arewa’s brother, who testified he was present on several occasions when the plans were discussed. “ ‘Under (OCGA § 24-4-8), testimony of an accomplice must be corroborated by either another witness or by corroborating circumstances. The corroboration, however, need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged. [Cit.]’ [Cit.]” Fowler v. State, 171 Ga. App. 491, 492 (1) (320 SE2d 219) (1984). In light of the fact that only slight corroboration connecting appellant with the crime is necessary, the denial of the motion for a directed verdict of acquittal was not error. See Quaid v. State, 132 Ga. App. 478, 483 (1) (208 SE2d 336) (1974).

3. Appellant next maintains the trial court erred by failing to qualify his witness as an expert. We do not agree. Appellant’s witness, Dr. Benjamin Maleka, a professor at Ohio State University Medical School and a friend of appellant and his family, was asked whether, in his opinion, appellant used cocaine. The trial court sustained the State’s objection to this question. However, the opinion that appellant was not a user of cocaine, which had been ruled out by the court, was subsequently given in response to another question. Thus, even assuming the trial court’s failure to qualify Dr. Maleka as an expert in this regard was erroneous, appellant has shown no harm. “It is axiomatic that ‘ “(h) arm as well as error must be shown to authorize a reversal by this court.” [Cit.]’ [Cit.]” Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987). In addition, the record reflects that Dr. Maleka was never tendered to the court as an expert in the recognition or identification of cocaine users, nor was a proper foundation laid for such a tender. Thus, the record fails to support this enumeration and it presents nothing for us to review. Halsell v. State, 183 Ga. App. 549, 550 (359 SE2d 393) (1987).

4. In his remaining enumerations, appellant asserts error in three charges given by the trial court.

(a) We find no merit in appellant’s contention that the trial court erred by failing to use the word “evidence” instead of the word “testimony” in instructing the jury regarding impeachment as follows: “If you find that a witness has been successfully impeached by proof of previous contradictory statements, you may disregard that testimony unless it is corroborated by other credible testimony.” The only evidence in question was testimony, and thus we find no logical reason why the word “evidence” should be preferable here. The charge given is a correct statement of the law, and is supported by the authority cited to us by appellant. Pike v. Greyhound Bus Lines, 140 Ga. App. 863 (232 SE2d 143) (1977).

(b) Appellant next alleges it was error for the trial court to charge the jury on constructive possession, since the offense charged requires a showing of actual possession. However, the trial court correctly charged the jury that they would be authorized to convict appellant “only if they should find beyond a reasonable doubt that [appellant] knowingly had actual possession either alone or jointly with others. . . .” The trial court also properly charged the jury that appellant could be charged with and convicted of the crime “if he directly commits the crime ... or where he intentionally aids or abets in the commission of the crime or where he intentionally advises, encourages, hires, counsels or procures another person to commit the crime.” OCGA § 16-2-20. The jury would have been authorized to believe from the evidence adduced at trial that appellant had committed the crime, since cocaine was found on the person of Arewa, and there was corroborated evidence that appellant aided and abetted Arewa in possessing it and bringing it into this State. We find, therefore, that although the charge on constructive possession may have been inapplicable, it was mere surplusage. “[A]n erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. [Cit.]” Davis v. State, 167 Ga. App. 701, 702 (1) (307 SE2d 272) (1983). Compare Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), reversing a conviction of the offense of trafficking in cocaine where the trial court erroneously instructed the jury that they would be authorized to convict if they found that the defendant had actual or constructive possession of drugs. We do not find the trial court’s charge in the instant case so prejudicial or harmful as to require reversal.

Decided March 7, 1988.

Alan B. Wain, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

(c) Finally, we find no merit in appellant’s contention that the trial court’s charge on moral turpitude was an improper comment on the evidence. The trial judge’s definition of moral turpitude was given in response to a juror’s question about the meaning of the phrase in connection with the impeachment of witnesses. The trial court’s response to the question was that the term was hard to define, but that “[generally it has been said that moral turpitude is those type crimes that are involved with a violation of the Ten Commandments.” While this definition may have been unorthodox, its only relevance was in regard to a witness appellant sought to impeach by proof of conviction of a violation of a municipal ordinance, which would not, under any definition, be considered a crime of moral turpitude. Thus, even assuming error in the trial judge’s definition, we are unable to see any harm shown by appellant, and it is well established that “[a]n appellant must show harm as well as error to warrant reversal. [Cit.]” Sanders v. State, 182 Ga. App. 581, 585 (4) (356 SE2d 537) (1987).

Judgment affirmed.

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


text:
    75776.
    COLE v. THE STATE.
    (366 SE2d 844)
   Sognier, Judge.

Appellant was convicted of theft by taking and he appeals.

1. In his first two enumerations of error appellant contends the evidence is not sufficient to support the verdict. The evidence disclosed that on June 28, 1986, appellant gave the Southern Lincoln-Mercury car dealership a $200 deposit on a used 1986 Lincoln Continental; the deposit was made so the car would not be sold to someone else while appellant was arranging financing, and was to be applied to the purchase price. When appellant was unable to get financing by July 12, 1986, the sales manager allowed appellant to take the car, because the sales manager had known appellant for a year and a half, and had no reason to believe appellant could not obtain financing for the car. However, the car was given to appellant with the understanding that he would obtain financing in three or four days. Despite appellant’s frequent assurances that there was no problem and he would obtain financing, he was unable to do so. Shortly after obtaining possession of the car appellant went to Kentucky and Tennessee where he owned property, although the sales manager testified that appellant had no authority to take the car out of the state. No one seemed to know specifically where appellant could be located, and on September 5, 1986, the owner of the dealership took out a criminal warrant charging appellant with theft by taking. He was arrested in Covington, Kentucky, on September 19, 1986, and the car was impounded. Appellant was released on bond but contested extradition and later went to Knoxville, Tennessee, where he was arrested on a fugitive warrant in mid-November 1986. Appellant waived extradition and was returned to DeKalb County and jailed on November 16, 1986.

Appellant testified that it was never his intention to take the car and not pay for it. He testified that he owned coal property in Kentucky and expected to get money to pay for the car by leasing mining rights to the property. However, he had been unable to negotiate mining leases before he was arrested. Another witness testified that he had personally verified appellant’s ownership of the land, and that the coal on the property was worth approximately $100,000,000.

Appellant was charged with theft by taking and theft by conversion; he was found guilty of theft by taking. Appellant argues that the evidence established clearly that he was in lawful possession of the car, and therefore, he could only be guilty of theft by conversion, not theft by taking. Thus, appellant argues that the evidence is not sufficient to sustain his conviction of theft by taking. This argument is not well taken. We have held that the phrase “regardless of the manner in which the property is taken or appropriated,” found in the theft by taking statute (OCGA § 16-8-2), “renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception . . . and theft by conversion . . Jones v. State, 137 Ga. App. 612, 613 (4) (224 SE2d 473) (1976); Ray v. State, 165 Ga. App. 89, 91 (1) (299 SE2d 584) (1983).

Decided March 7, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Helen A. Pryles, Assistant District Attorneys, for appellee.

The basic facts in this case as to how appellant obtained possession of the car are not in dispute, and the only real issue in the case was appellant’s intent, which was a question for the jury. Cade v. State, 180 Ga. App. 314, 316 (3) (348 SE2d 769) (1986). Hence, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the trial court erred by failing to act on the prosecutor’s misconduct in placing appellant’s arrest record before the court. Appellant made no objection to questions about his arrest record, and it is well settled that this court cannot consider questions raised for the first time on review. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

3. Appellant alleges the trial court erred by charging on flight because there was no evidence of flight. This allegation is not supported by the transcript, which shows that appellant took the car out of state, that no one seemed to know specifically where he was, and he was finally arrested on a criminal warrant in Kentucky. He contested extradition and ultimately went to Tennessee while free on bond, and was arrested on a fugitive warrant in Tennessee some six weeks later. Such evidence is, to say the least, some evidence of flight, and where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. Fredericks v. State, 172 Ga. App. 379, 380 (2) (323 SE2d 265) (1984).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    76123.
    SOUTHERN RAILWAY COMPANY v. CROWE.
    (366 SE2d 846)
   Deen, Presiding Judge.

Madeline Crosby Crowe brought suit against Southern Railway Company to recover damages to real property which were caused by a fire. The evidence showed that Southern Railway’s employees were working on the railroad’s tracks in the vicinity of appellee’s property. They were operating a rail-cutting machine which generated sparks. One of the sparks started a fire which the work crew could not extinguish, and the fire quickly grew out of control. It burned 83 acres of Mrs. Crowe’s property, which contained timber of various sizes and ages and 20,000 two-year-old seedlings planted throughout the tract.

The railroad denied liability for the damage. When the case came to trial, however, the railroad admitted liability for the damage and the only issues for trial were the amount of its liability and whether Mrs. Crowe was entitled to recover for her claims for punitive damages, attorney fees and litigation costs. A jury verdict awarded her $18,000 for the loss of her timber, $7,500 for the cost of reforestation of the 20,000 seedlings and incidental damage to the property, $13,500 in attorney fees and $1,562 for litigation expenses. On appeal, Southern Railway contends that the plaintiffs verdict for both damages for the loss of timber and the costs of reforestation cannot stand because it reflects an impermissible double recovery, and that the trial court erred in permitting the jury to impose attorney fees and costs, pursuant to OCGA § 13-6-11.

1. The court charged the jury that the damages that the plaintiff sustained, if any, “is the difference in the value of the land immediately before the fire and the value of the land immediately after the fire, that is, how much less was the land worth after the fire than before, having reference to the injury done by the fire. You may determine this fact by ascertaining the value of the timber before, and then determine the value of the timber after the fire, and by other facts and circumstance proven in the case on the question of damages. The true measure of damages in a case of this kind is the diminution in the market value of the realty unless the value of the trees at the time and place of their being felled or being burned, plus the incidental damages to the realty, exceeds the diminution in market value of the land. In which event the plaintiff in this case is entitled to recover the higher measure of damages.” The court went on to charge: “As a matter of law, I have ruled that the plaintiff cannot recover the cost of reforestation to the entire 83 acre tract of land, or for the cost to reforest all of the property that was burned because . . . the law requires that . . . juries figure the net loss of the value of the timber . . . Now incidental damage to property is an item you may consider and determine . . . which the plaintiff contends was 20,000 seedlings.” The court went on to instruct the jury that it was to determine if there was damage to the seedlings, and the number destroyed, if they were destroyed. “You determine their value, and you determine whether or not . . . they were of such tender years and age that they had no immediate market value. Then you may consider whether or not to place value on such seedlings, based on the evidence in the case, due to their age, the cost of reforestation of that amount of seedlings based upon . . . the amount of acreage that such seedlings would occupy to reforest.”

Appellant does not contend that the damage charge for determining the amount of damage sustained to the property by determining the value of the timber before and after the fire was erroneous, but contends that it was error to deny its motion in limine, to prevent the jury from hearing the testimony of the costs of reforestation, as was the denial of its motion for a directed verdict on this issue and the jury charge on the cost of reforestation of the 20,000 seedlings recoverable as incidental damages.

Plaintiff’s experts testified that the 83-acre tract was covered with trees of various ages and sizes and that, while the 20,000 seedlings had no market value as they were only two inches in diameter, they would enhance the market value of the property. They occupied approximately 20-30 acres of the tract. One of the experts testified that in 25 years, the normal crop rotation period, they would have a value of $72,996, which, when divided by 25 and then allowing for 2 years growth, gave them a current value of $5,840. Both experts testified as to the cost of reforesting the entire tract and gave a breakdown of costs for replanting the 20,000 seedlings. These costs were based on an estimate of 600-700 trees per acre and a cost of $150-160 per acre.

The jury instruction permitted it to assign a value to the seedlings along with the cost of replanting them. The jury was very carefully instructed that the plaintiff could not recover for the reforestation of the entire tract. To permit such a recovery would be a double recovery for the landowner, as the costs of replanting after timber has been removed is a part of normal business costs which are borne by the landowner. See Henderson v. Easters, 178 Ga. App. 867 (345 SE2d 42) (1986). To permit such a recovery for the seedlings is a different matter. The jury was charged that the value of the land was measured by the value of the timber before and after the fire. The seedlings’ only value was that they enhanced the value of the land, but only as to their future value as timber. In order to make the plaintiff whole after her land was damaged by fire, their replacement became an item of incidental damages in the same way that restoring a fence becomes an item of incidental damages. See Central R. &c. Co. v. Murray, 93 Ga. 256 (20 SE 129) (1893). Even the defendant’s own expert, in response to a hypothetical question, responded that if a good crop of seedlings was burned he would expect to be paid for it. We find no merit in appellant’s enumerations on this issue.

2. Southern Railway argues that since there existed a bona fide controversy as to the amount of damages, the jury was precluded from considering attorney fees and litigation costs. The evidence reveals that the appellant railroad consistently denied all liability for the damage to appellee’s property up until the trial of the case, at which point it admitted no bona fide controversy existed as to that liability.

In Delta Air Lines v. Isaacs, 141 Ga. App. 209 (233 SE2d 212) (1977), we held that the trial court properly presented the question of attorney fees to the jury pursuant to OCGA § 13-6-11. “A party may resist settlement of a claim without fear of future liability for attorney fees if the resistance is predicated upon a ‘bona fide controversy.’ [Cit.] However, where a defendant has disclaimed all liability prior to litigation, the raising at trial of a dispute as to the amount of liability, without more, will not satisfy the bona fide controversy requirement. [Cit.]” Id. at 211 (3).

The court discussed the rationale for what we perceive to be the correct holding in the case sub judice in Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. 747 (266 SE2d 531) (1980), in which we stated: “[T]he question of whether attorney fees are authorized for stubborn litigiousness should focus on whether defendant’s resistance of the claim was bottomed on a bona fide controversy or dispute, since the absence of such is the essence of the attorney fee award for stubborn litigiousness. [Cits.] We can perceive that there may be cases wherein there is a bona fide controversy and the plaintiff has insisted on far more damages than he was finally determined to be worth, and yet the defendant, despite the fact that there is a genuine controversy, has still been guilty of ‘wanton or excessive indulgence in litigation’ beyond that demanded by the nature of the controversy [cit.], or the defendant may have treated the claim or conducted the litigation itself in bad faith [cit.]. In such a case, although there may indeed be ‘great disparity in the verdict and demand’ [cit.], which would certainly indicate that there had been a bona fide controversy at least as to the amount of liability, the defendant may still have been stubbornly litigious within the meaning of [OCGA § 13-6-11] [cits.]. The defendant may, for example, have expended much cantankerous, unnecessary litigation on a denial of liability as to which there is found to have been no real dispute or bona fide controversy, as further evidenced by the fact that at trial he admits liability and challenges only the amount of liability [citing Delta Air Lines v. Isaacs, supra; etc.]” (Emphasis in original removed; emphasis supplied.) Id. at 753-754. See also Beaudry Ford, Inc. v. Bonds, 139 Ga. App. 230 (228 SE2d 208) (1976), in which this court rejected Beaudry Ford’s argument that a dispute over the amount of liability would create a genuine dispute sufficient to ameliorate any claim for damages under OCGA § 13-6-11 when all liability has been intractably denied, stating: “The defendant steadfastly denied liability and therefore it cannot raise the amount of damages as a genuine controversy.” Id. at 231. The fact that the jury’s award reflected the amount asserted by Beaudry Ford rather than the amount demanded by the plaintiff was held to be an “inapt” rationale for denying attorney fees to the plaintiff. Id.

Decided March 7, 1988.

Randall A. Jordan, Mark J. Bujold, for appellant.

Jack Hutto, Karen M. Krider, for appellee.

The evidence here shows “that there existed no bona fide controversy as to appellant’s liability, but rather that appellant was merely ‘stonewalling,’ as contemporary idiom has it — that is, that appellant was attempting to utilize what this court has denominated ‘the “so sue me” ploy.’ [Cit.]” (Emphasis supplied.) Thompson Enterprises v. Coskrey, 168 Ga. App. 181, 184 (308 SE2d 399) (1983). Thus, there was evidence to support the award of attorney fees for appellant’s stubbornly litigious behavior and the unnecessary trouble and expense appellant caused appellee by its denial of any liability for the fire damage to appellee’s property.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    75321.
    CASTRO v. THE STATE.
    (367 SE2d 42)
   Beasley, Judge.

Defendant appeals his conviction of trafficking in cocaine. OCGA § 16-13-31.

1. Defendant asserts he did not consent to the search of his automobile in the trunk of which the contraband was found. He makes this contention on two grounds. The first is that the State did not prove that the translation of the trooper’s request was accurate, that defendant understood it, or that the translation of defendant’s response was accurate. Defendant spoke only a little English, his native tongue being Spanish. The trooper who requested consent spoke to defendant in English at first and received replies in English, though halting, and subsequently obtained defendant’s purported affirmative response through the translation of his co-defendant. The second is that even if it is found that defendant understood and “consented,” it was an invalid consent because he was not advised that he had a right to refuse consent.

Defendant’s argument, that whether there was an accurate translation and whether he actually consented were not established, might be viable nothing else appearing. But during the trial defendant on cross-examination admitted that he freely and voluntarily consented to the officers’ search of his automobile, explaining he had no knowledge that cocaine was concealed in the trunk. Defendant’s open court admission would render harmless any error in failing to grant the motion to suppress on the basis of failure to show a voluntary consent. Boling v. State, 244 Ga. 825, 828 (7) (262 SE2d 123) (1979); Hall v. State, 243 Ga. 207 (1) (253 SE2d 160) (1979); Taylor v. State, 134 Ga. App. 79 (1) (213 SE2d 137) (1975); Watson v. State, 132 Ga. App. 204, 205 (1) (207 SE2d 685) (1974).

The second basis is governed by Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973). A consent is not necessarily rendered invalid if the person is not advised that he has a right to refuse. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975), and Noland v. State, 178 Ga. App. 486, 488 (2) (343 SE2d 763) (1986).

2. Defendant urges as error the failure to grant his motion for mistrial predicated on the fact that the trooper, who was the state’s principal witness, ate supper with one of the jurors and two other people during a recess in the jury’s deliberation. The court had neglected to instruct the jurors not to talk to any of the witnesses at all about anything, before sending them off to eat wherever each chose. At a hearing outside the jury’s presence, the trooper testified that he was waiting in line at a local restaurant when the foreman of the jury stated “Sheriff Bowman was on the way” and asked the trooper to join them. On cross-examination, the trooper denied there was any discussion of the case or as to a juror’s duties other than the juror stating as they were parting that “when it was all over he would like to see me.”

Defendant moved for a mistrial and refused any cautionary instructions except general ones relating to the jury’s duty to consider only evidence introduced in the case, for fear of exacerbating the problem or antagonizing the juror or jury. After the jury was so instructed, the defendant renewed the motion for mistrial but it was denied.

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986), citing Martin v. State, 242 Ga. 699, 701 (251 SE2d 240) (1978). Here as in Lamons the contact was with the chief prosecuting witness. That witness was the only one questioned, as the juror was not called to explain the incident. Thus, the prosecution failed to carry its burden of showing the absence of harm beyond a reasonable doubt. There was at the least an unrebutted inference that the incident created out of court a favorable impression on the juror with respect to the trooper, which impression would affect the juror’s judgment of credibility as well as introduce a desired outcome. It cannot be said that the juror was not influenced by the contact. Cf. Smith v. State, 173 Ga. App. 889 (328 SE2d 553) (1985), cert. vacated 254 Ga. 536 (333 SE2d 371) (1985).

Decided January 14, 1988

Rehearing denied March 8, 1988

Randall M. Clark, for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Assistant District Attorney, for appellee.

The refusal to grant a mistrial was error.

Judgment reversed.

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


text:
    75432.
    HENRY et al. v. DAIRYLAND INSURANCE COMPANY.
    (366 SE2d 799)
   McMurray, Presiding Judge.

Dairyland Insurance Company (Dairyland) brought this declaratory judgment action against Kenneth E. Henry (defendant) and others seeking a determination of its obligations as the purported liability insurer of defendant’s 1980 Ford Fairmont automobile.

Upon Dairyland’s motion for summary judgment, the following uncontradicted evidence was adduced: Elijah H. Jordan owned and operated Main Street Insurance Company (Main Street), an independent insurance agency representing various insurance companies, including Dairyland. Dairyland mailed to Main Street a letter dated July 22, 1983, which informed Main Street that its “privileges of writing insurance for Dairyland ... are withdrawn effective 7/25/83.”

In 1983 defendant went to Main Street and discussed with one of Main Street’s employees the possibility of obtaining insurance for his vehicles. This inquiry resulted in defendant obtaining insurance for his “68 Pontiac Firebird” and his “80 Ford Fairmont” automobiles through Universal Security Insurance Company (Universal). This coverage expired on August 17, 1984, and defendant was informed by one of Main Street’s employees that Universal’s renewal premium would be higher. Defendant then requested to be placed with another insurance carrier and, in response, Tina Reynolds, one of Main Street’s employees, gave defendant a “temporary” insurance identification card entitled, “Georgia Liability Insurance Card,” which indicated that defendant’s “68 Pont” motor vehicle was insured with “Early American Ins” from “10/5/84” through “4/5/85.” Defendant gave Ms. Reynolds $297 and she gave defendant a receipt which reflected the amount defendant paid for “2 cars full coverage liab.” Defendant was informed that the temporary insurance identification card was evidence that his vehicles were insured and that his insurance policy would be mailed to him.

After defendant failed to receive an insurance policy and after defendant made several inquiries of Main Street’s employees as to the reason for the delay in receiving his policy, defendant went to Main Street and Tina Reynolds offered to place defendant with another insurance company and give defendant credit for the $297 he paid for the “Early American Ins” coverage. Defendant accepted and Ms. Reynolds prepared another “temporary” insurance identification card. This card indicated that defendant’s “80 Ford” automobile was insured with “Dairyland Insurance” from “3/28/85” through “9/28/ 85.” Later, defendant contacted someone at Main Street and he was informed that his insurance policy would be sent to him via mail.

Defendant never received a Dairyland automobile liability insurance policy, his 1980 Ford Fairmont vehicle was involved in a collision on May 4, 1985, and defendant claimed coverage from Dairyland.

Dairyland never received an insurance application on behalf of defendant. Nor did Dairyland receive a premium payment from defendant or notice of defendant’s claim for coverage until after the May 4 collision. One of Dairyland’s employees contacted defendant after the collision and informed defendant that Dairyland had no record of insurance coverage on defendant’s vehicle.

In opposition, defendant filed the deposition of Elijah H. Jordan, the deposition of Willie A. Hines, a/k/a “Bill Hines” and affidavits of persons who procured Dairyland Insurance through Main Street at or about the time defendant received the Dairyland “temporary” insurance identification card from Main Street.

More specifically, two of Main Street’s former patrons deposed that they received Dairyland automobile insurance through Main Street at a time contemporaneous with defendant’s receipt of the “Dairyland Insurance” identification card. These affiants also deposed that they were subsequently billed for their Dairyland insurance through “First City General Agency” (First City) located at “3835 Flatshoals Road, Decatur, Georgia.”

Defendant offered into evidence through Hines’ deposition a Dairyland insurance agency application which indicates that “Bill Hines” is the only authorized insurance agent to solicit Dairyland insurance, d/b/a First City. Hines testified that he is a licensed insurance agent in Georgia; that he has never sold insurance and that he is acquainted with Elijah H. Jordan but that he never authorized Jordan nor any other person or agency to use his name or his Georgia insurance agent’s license number to obtain the right to solicit Dairy-land insurance.

Jordan testified in his deposition that he operated an independent insurance agency d/b/a First Security Insurance Agency “on Flat Shoals [Road] in Decatur.” Jordan also testified that Main Street’s relationship with Dairyland was “ ‘on again, off again’ ” and that he had authority to sell Dairyland insurance in March 1985. However, upon cross-examination Jordan admitted that no such authority existed when Main Street issued defendant the “temporary” identification card which indicated that “Dairyland Insurance” covered defendant’s “80 Ford” automobile.

From the evidence filed in opposition to Dairyland’s motion for summary judgment, defendant argued that a jury question as to whether a principal/agent relationship existed between Dairyland and Jordan, d/b/a Main Street. Defendant also argued that Dairyland is estopped in denying liability based on the evidence showing Jordan’s activities selling Dairyland insurance through First City and Main Street’s employees’ representations. The trial court rejected these contentions and declared that “Dairyland has no duty to defend any party in any subsequent proceedings arising out of these events.” This appeal followed. Held:

Defendant re-asserts his claim of estoppel arguing that “Dairy-land, by its negligent acts, created a situation which allowed Main Street and Elijah [H.] Jordan, its owner, to commit the error, misrepresentation or fraudulent act which caused [defendant] the harm complained of.”

“In terms of estoppel, the general rule is that an insurance company will be estopped to deny that a certain person is its agent or possesses the authority he assumes to exercise, where the insurance company knowingly causes or permits him so to act as to justify a third person of ordinarily careful and prudent business habits to believe that he possesses the authority exercised.” 43 AmJur2d 201, Ins., § 120. Contrary to defendant’s assertions, we find no evidence that Dairyland indicated to defendant or led him to believe that Jordan, d/b/a Main Street, had authority to act for Dairyland. In fact, in his deposition defendant testified that he was not directed to Main Street through an advertisement or recommendation which indicated that Main Street was an agent for any particular insurance carrier and that he perceived nothing while at Jordan’s Main Street office which indicated that Main Street was an agent for Dairyland. Defendant further testified that he did not approach Main Street as an agent for any particular insurance carrier and that he did not request any of Main Street’s employees to procure insurance coverage for his vehicles through a specific insurance company. Defendant testified that his primary objective with Main Street was to obtain the most favorable insurance premium for his vehicles, without regard to the insurance carrier.

Decided February 24, 1988

Rehearing denied March 8, 1988

Pearl L. Henry, for appellants.

Richard B. Eason, Jr., for appellee.

“ ‘(W)here the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such an agency exists.’ Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490, 491 (296 SE2d 749) (1982).” Wiggins v. Home Owners &c. Council, 168 Ga. App. 777, 778 (310 SE2d 554). In the case sub judice, the only evidence adduced to demonstrate an agency relationship between Dairyland and Main Street consisted of defendant’s assumption and the representations of Main Street’s employees. There simply was no showing of Dairyland’s conduct, representations, course of dealings or knowledge of the material facts which caused defendant’s failure to procure Dairyland automobile liability insurance coverage. Consequently, since the undisputed evidence showed that defendant had no contract of insurance with Dairyland and since there was insufficient evidence to prove agency, the trial court properly granted Dairyland’s motion for summary judgment.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

       Jordan closed Main Street in June 1985 and he returned his Georgia license as an agent authorized to write health, accident and liability insurance to the Georgia Insurance Commissioner. Sometime in 1986 Jordan’s Main Street office was “ransacked” and many of his business records were taken.


author: Carley, Judge.

text:
    75472.
    FOOD GIANT, INC. v. COOKE.
    (366 SE2d 781)
   Carley, Judge.

Appellee-plaintiff fell when she stepped into motor oil which apparently had escaped from cans displayed on a shelf and then collected on the floor of an aisle in appellant-defendant’s store. Appellee filed this action for damages and, after a period of discovery, appellant moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate review. This appeal results from this court’s grant of appellant’s application for an interlocutory appeal.

1. In support of its motion for summary judgment, appellant produced the affidavits of three of its employees who had been on duty at the time that appellee fell. Each affiant asserted a lack of personal knowledge as to the presence of the oil, the length of time that it may have been present on the floor, and the precise manner in which it had come to be there. In addition to this lack of actual personal knowledge, each affiant also denied receipt of notice, from any other source, of the presence of the oil on the floor prior to appellee’s fall. The affidavit of appellant’s manager contained this additional statement: “During the times I was in charge of a store for a shift, including while I was in charge of the store on the shift in which [appellee] allegedly fell, I customarily would patrol or instruct others to patrol the store three to four times per shift. Additionally, I instructed the employees in my charge to keep a lookout for any condition which could possibly cause a hazard to customers or other employees, and to correct any such condition if discovered.” (Emphasis supplied.)

“ ‘(I)n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance. . . [Cit.]” (Emphasis supplied.) Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891, 892 (318 SE2d 514) (1984). Thus, the burden would be upon appellant, as the movant for summary judgment, to show that no genuine issue remained as to its lack of actual and constructive knowledge of the oil on the floor of its premises. See Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988). The evidence of record would appear to be sufficient to show that appellant lacked actual knowledge of the oil prior to appellee’s fall. Thus, the ultimate issue to be resolved is whether that evidence would also be sufficient to show that appellant had no constructive knowledge of the foreign substance. See generally Filmore v. Fulton-DeKalb Hosp. Auth., supra.

“Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. [Cits.]” (Emphasis supplied.) Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (1) (301 SE2d 695) (1983). Thus, the burden would be upon appellant, as the movant for summary judgment, to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained. It would appear that appellee’s own “testimony effectively negates the possibility of constructive knowledge based upon the presence of an employee in the immediate area of the dangerous condition. Thus, [appellee’s] sole avenue of possible recovery is one in which constructive knowledge on the part of [appellant] is premised upon [appellant’s] failure to exercise reasonable care in inspecting and keeping the premises in [a] safe condition. The [issue thus becomes whether the] affidavits executed by [appellant’s] personnel effectively negate recovery of that theory. [Cits.]” Filmore v. Fulton-DeKalb Hosp. Auth., supra at 893.

Nothing in appellant’s evidence shows directly or circumstantially the approximate length of time that the oil may have been allowed to remain on the floor. Nowhere in their affidavits did appellant’s employees specifically state at what time or even if, prior to the incident, the aisle in question had been inspected for foreign substances or had been ordered to be inspected. Construing the evidence most strongly against appellant, its manager’s affidavit went merely to the general existence of a customary inspection procedure and would not be sufficient to negate the possibility that, on this specific occasion, there had been a deviation from that procedure. If appellant’s manager cannot state that she was adhering to her customary inspection procedures on the specific day in question, the mere existence of such customary procedures would prove nothing. Compare Continental Grain Co. v. Farmers Gin &c. Co., 167 Ga. App. 170, 173 (305 SE2d 783) (1983), holding that “ ‘[a] witness may have no distinct and independent recollection of the details of a fact occurring in the course of the routine of his business, yet he may testify as to a fixed and uniform habit in such cases and ‘state that he knows that what he did in a given transaction was in accordance with that hábit. . . .’ [Cits.]” (Emphasis supplied.)

Moreover, even assuming that the affidavit of appellant’s manager could be construed both as a statement of the general existence of customary inspection procedures and also as an affirmation of her adherence to those customary procedures on the specific day of appellee’s fall, such evidence, standing alone, would not authorize the grant of appellant’s motion for summary judgment. The issue is not whether appellant had adhered to its customary inspection procedures. The issue is whether, under the existing circumstances, appellant’s failure to have discovered the specific foreign substance prior to appellee’s fall was the result of the breach of appellant’s legal duty to inspect the premises. If so, an inference would arise from that breach of appellant’s constructive knowledge of the presence of the oil on its floor. Appellant’s mere adherence to its customary inspection patrol “three to four times per shift” would not show that the failure to have discovered the oil was non-negligent. “ ‘ “An act in accordance with custom is not relieved of its character as negligence as a matter of law merely because of the custom.” [Cit.] “By the great weight of modern American authority a custom either to take or to omit a precaution is generally admissible as bearing on what is proper conduct under the circumstances, but is not conclusive ... An actor will not be allowed to show conformity with his own individual habits in order to prove due care.” [Cits.] . . . “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” ’ [Cit.]” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 688-689 (3) (178 SE2d 543) (1970).

The issue in this case is whether appellant’s lack of prior actual knowledge of the presence of the oil is a factor which goes to show its liability rather than its non-liability for appellee’s fall. At trial, the burden will be on appellee to prove that, notwithstanding a lack of actual knowledge, appellant had constructive knowledge insofar as, under the existing circumstances, the oil had been on the floor for a period of time sufficient for a reasonable inspection to have discovered it and that the knowledge of its presence should accordingly be imputed to appellant. “ ‘The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case [the] (nature of the business, size of the store, the number of customers, the nature of the dangerous condition and [the store’s] location).’ [Cit.]” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). On summary judgment, however, the burden was on appellant to show that this theory of recovery was not a viable one. Appellant’s evidence did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the oil was the result of its failure to exercise reasonable care in inspecting its premises. See Winn-Dixie of Greenville v. Ramey, supra. Compare Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987) (summary judgment proper where there is nothing to rebut defendant’s direct evidence that, 5 minutes prior to fall, the grocery store aisle had been inspected and no foreign substances were found); Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987) (summary judgment proper where there are no existing circumstances inconsistent with direct evidence that, 10 to 15 minutes prior to fall, the floor in front of frozen food display had been inspected and no foreign substances were found.)

Since appellant did not meet its initial evidentiary burden as the movant for summary judgment, the burden never shifted to appellee to produce evidence as to how long the oil may have been on the floor. It follows that, as to the issue of appellant’s constructive knowledge of the oil, the trial court did not err in denying summary judgment.

2. In her deposition, appellee stated that, had she been looking at the floor, she would have seen the oil before stepping into it. Placing its reliance upon this statement, appellant moved for summary judgment on the ground that appellee’s failure to exercise ordinary care for her own safety was the proximate cause of her fall. The trial court’s refusal to grant appellant’s motion on this ground is enumerated as error.

Decided February 16, 1988

Rehearing denied March 8, 1988

Donald R. Andersen, for appellant

Murphy C. Miller, for appellee.

The mere fact that appellee was not looking ahead does not demand a finding that she was not exercising ordinary care for her own safety. “ ‘Looking continuously, without intermission, for defects in a floor is not required in all circumstances. [Cits.] “What is ‘a reasonable lookout’ depends on all the circumstances at the time and place.” ’ [Cit.]” Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 262-263 (174 SE2d 178) (1970). See also Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (227 SE2d 336) (1976). Moreover, appellant, as the movant for summary judgment, had the burden of showing that there was no diversion attributable to it which had caused appellee’s attention to be drawn away from the oil. “ ‘(W)here a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant.’ [Cits.]” Alterman Foods v. Ligon, supra, 623. Appellant did not meet its evidentiary burden as to appellee’s failure to exercise ordinary care for her own safety. It follows that the trial court did not err in denying appellant’s motion for summary judgment on this ground.

Judgment affirmed.

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


text:
    75094.
    WINN-DIXIE OF GREENVILLE et al. v. RAMEY et al.
    (366 SE2d 785)
   Carley, Judge.

Appellee-plaintiffs Mr. and Mrs. John Ramey brought suit, seeking damages based upon injuries sustained by appellee Mr. Ramey when he slipped and fell in a grocery store which is owned by appellant-defendant Winn-Dixie and managed by appellant-defendant Michael Layton. According to the allegations of appellees’ complaint, appellants had negligently allowed a liquid substance to remain on the store floor, thereby creating a hazardous condition which had caused appellant John Ramey to slip and fall. Appellants answered, denying the material allegations of the complaint. The trial court denied appellants’ motion for summary judgment, but certified its order for immediate review. This appeal results from the grant of appellants’ application for interlocutory review of the trial court’s ruling.

1. In support of their motion for summary judgment, appellants filed the deposition of appellant Layton, wherein he testified that he had inspected the floor where appellee John Ramey had fallen and that he had found it to be dry. This testimony was sufficient to pierce appellees’ allegation that there was a liquid substance on the floor where the slip and fall had occurred. See generally Food Fair v. Mock, 129 Ga. App. 421, 423 (199 SE2d 820) (1973). Once the allegation of appellees’ complaint had been pierced, the burden shifted to them to produce evidence which would show that a genuine issue remained as to the existence of the liquid substance on the floor. See OCGA § 9-11-56 (e). Appellants contend that appellees did not meet this evidentiary burden and that the trial court therefore erred in denying the motion for summary judgment.

In the deposition of appellee John Ramey, he testified that, in an attempt to break his fall, he had placed his left hand, palm down, on the floor and that, when he removed his palm from the floor, it was wet. On a motion for summary judgment, “ ‘[t]he evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence. [Cits.]’ [Cit.]” Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603 (322 SE2d 870) (1984). Applying this standard, we find that, as to the existence of a hazardous substance, the deposition testimony of appellee John Ramey is sufficient to withstand appellants’ motion for summary judgment. Compare Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987). This holding should not, however, be construed as authority for the proposition that appellees’ evidence would, had it been offered at trial, necessarily be sufficient to withstand a motion by appellants for directed verdict. An evidentiary posture authorizing the grant of a directed verdict may not authorize the grant of summary judgment in a case, such as this, where “the party making the motion for summary judgment is not required to carry the burden on the trial of the case. [Cits.]” Ray v. Webster, 128 Ga. App. 217 (196 SE2d 175) (1973).

2. Appellants further enumerate the trial court’s denial of their motion for summary judgment as error on the ground that, under the evidence of record, the issue of their actual or constructive knowledge of the hazardous condition has been eliminated from the case.

“ ‘(I)n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance. . . .’ [Cit.]” (Emphasis supplied.) Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891, 892 (318 SE2d 514) (1984). Thus, the burden would be on appellants, as the movants for summary judgment, to show that no genuine issue of material fact remained as to their knowledge, actual and constructive, of the foreign substance on the floor. Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988).

Appellee John Ramey testified that he saw none of appellants’ employees in the area where his fall occurred. This testimony does not, however, establish such a lack of appellants’ constructive knowledge as to authorize the grant of their motion for summary judgment. “Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. [Cits.]” (Emphasis supplied.) Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (301 SE2d 695) (1983). Appellants offered no evidence as to what inspection procedures, if any, were in effect during the time in question and no evidence as to whether there had been adherence to those procedures. Accordingly, the evidence did not eliminate appellees’ possible recovery under the theory that, as the result of a failure to exercise reasonable care in inspecting the premises, appellants had actionable constructive knowledge of the presence of the foreign substance. See Food Giant v. Cooke, supra. Because appellants did not meet their evidentiary burden as to this theory, the burden did not shift to appellees to show the length of time that the oil had been allowed to remain on the floor. Compare Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987) (wherein plaintiff failed to rebut defendant’s evidence that foreign substance had not been on floor long enough to give defendant a reasonable time and opportunity to remove it); Mayfield v. All American &c. Foods, 182 Ga. App. 711 (356 SE2d 745) (1987) (wherein defendant showed that floor had been swept shortly before plaintiff fell and plaintiff did not offer evidence as to how long the foreign substance had been allowed to remain on floor). It follows that the trial court correctly denied appellants’ motion for summary judgment.

Judgment affirmed.

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

Decided February 16, 1988

Rehearing denied March 1, 1988.

E. Davison Burch, Frederick A. Bading, for appellants.

Dennis T. Cathey, for appellees.


text:
    75808, 75809.
    JACOBS et al. v. PILGRIM.
    (367 SE2d 49)
   Deen, Presiding Judge.

Susan Jacobs brought suit against Tammie Darlene Pilgrim for injuries she sustained in an automobile collision on January 21, 1985. Mrs. Jacobs received a jury verdict in the amount of $15,000. Her husband received $2,000 on his loss of consortium claim. On appeal, Susan Jacobs contends that the court below erred in allowing a psychologist to testify that her condition was the result of a psychophysiological reaction to stress, as he could not give his opinion with reasonable medical certainty; that he spoke of it as being a possibility; and stated that this was not his field and that he would rather have a psychiatrist called in. Gerald Jacobs appeals, contending that the court below erred in refusing to allow him to present evidence as to his lost earnings, past, present, and future, as a result of his wife’s illness; as to loss of earnings as a result of his loss of promotion rights; and as to the reasonable value of his loss of sick leave which resulted from the illness of his wife.

The evidence showed that Susan Jacobs worked as a waitress and bookkeeper prior to the collision and that prior to that event she had no problems with her memory. She testified that she struck her head several times on the window of the car during the course of the accident but did not think that she lost consciousness, as she was alert shortly after it occurred and remembered the details of the accident. She did not tell any of her physicians that she hit her head. Although the answers to interrogatories are not a part of the record on appeal, appellee contends that she described a number of injuries, but did not report a head injury. The physician who treated her in the emergency room immediately after the accident testified that she reported pain in her neck and left arm, but that x-rays showed no fracture or dislocation of her spine. When he saw her a few days later, she was complaining of neck and low back pain, although she had no objective signs of her complaints. The x-rays, however, did reveal some osteoarthritic spurs. A CAT scan and myelogram were normal. He believed that some of her problems were caused by obesity, which put a strain on her whole system, and that this factor and a chronic urinary tract infection caused the low back pain. The physician was of the opinion that she was not experiencing any adverse problems as a result of the automobile accident and that she was capable of returning to work.

A psychologist who first saw Mrs. Jacobs at a Social Security disability hearing in January of 1987 testified that she had suffered a coup-contrecoup type of head injury and had suffered brain damage in the collision, resulting in memory loss. Mrs. Jacobs’ psychiatrist testified that Susan Jacobs was referred to her as a patient in September of 1985 because lower back pain was causing problems in her daily life and she was becoming dependent on pain medication. The psychiatrist did not know what was causing her continuing problem with pain, but did not believe the cause was psychiatric. She had never diagnosed Mrs. Jacobs as having a brain injury; but when Mrs. Jacobs first became a patient she exhibited symptoms of depression, and the psychiatrist diagnosed her as having an adjustment disorder with a depressed mode.

A second psychologist, Dr. Adams, testified that an adjudicator with the Social Security Disability Adjudication Section made an appointment for her for an evaluation for purposes of disability determination. He administered the Minnesota Multiphasic Personality Inventory (MMPI) and was of the opinion that she suffered from organic brain syndrome resulting from the automobile accident in January of 1985, that she was suffering from chronic pain syndrome of long-standing duration and was over-medicating herself in an attempt to stop the pain. He felt that her depression was related to an organic affective syndrome and that the brain damage caused her emotions to be unstable.

Dr. Loring, Director of Neuropsychology at the Medical College of Georgia, testified that approximately ninety percent of his work involves the evaluation and determination of brain damage in patients who have suspected neuropathology, and that the balance of his work involves personality test assessments. He has had more than six years’ experience interpreting the results of the MMPI and after reviewing Mrs. Jacobs’ test, which was administered by Dr. Adams, concluded that her problems tended to be chronic and of long-standing duration “rather than a pattern that can . . . [be] attributed to some sort of structural brain pathology.” He set forth the reasons he disagreed with Dr. Adams’ interpretation of her test. He also administered a variety of other tests in an attempt to do a thorough and comprehensive evaluation. Her performance on tests which were similar varied dramatically. In the Wisconsin Card Sorting Test she made no errors, but on the Categories Test she scored in the worst of the brain-injured group. In Dr. Loring’s experience, such an inconsistent performance was not consistent with brain damage. He found that for her to score so low on certain tests that were administered, her performance would be comparable to that of a person who had been in a coma between 14 and 28 days.

On cross-examination, Dr. Loring was asked about his statement that a psychophysiological reaction can be the result of stress. He replied that he mentioned that fact as an example of the cause of an emotional reaction and that he could not rule out a psychological basis to her present functioning on the basis of the MMPI test results. He further testified that in summarizing all his previous testimony, the results and conclusions that he reached on the basis of the MMPI he could not rule out a psychological reaction, but admitted he could not say with a reasonable degree of medical certainty that it exists, as he could “prefer a psychiatrist or someone like that, to make that determination.” The trial court overruled counsel’s motion to strike his testimony.

1. Dr. Loring’s testimony was relevant to cast doubt on the other psychologist’s explanation of the causal relationship between the collision and appellant’s problems. He found that Susan Jacobs’ test results were not consistent with a brain injury. He did not testify that it was caused by stress, but rather that it was one possible explanation of the test results as he interpreted them.

“[Mjedical testimony as to the mere possibility of a causal relation between a given event and the subsequent physical or mental condition of an injured person will not establish the causal relationship [;] it is clear that such testimony is not inadmissible as to that issue.” Ga. Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 877 (305 SE2d 611) (1983). Medical evidence which shows the possibility of a causal relationship “in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, ... is sufficient to establish the causal relation.” National Dairy Prods. Corp. v. Durham, 115 Ga. App. 420, 423 (154 SE2d 752) (1967). In this case, other evidence included appellant’s own admission that she had undergone numerous tests (x-rays, myelograms, and an EMG) which were all normal, and that she did not report a head injury to anyone immediately after the accident although she now claims she struck her head on the car window several times. Indeed, her own psychiatrist testified that she had no explanation for Mrs. Jacobs’ continuing problems. Where an expert’s opinion is based wholly on speculative or conjectural matters, his opinion should be excluded. Bankers Health &c. Ins. Co. v. Fryhofer, 114 Ga. App. 107 (150 SE2d 365) (1966). We find that Dr. Loring’s opinion was based on his interpretation of the MMPI test which was administered to Mrs. Jacobs by another psychologist; that he was shown to be an expert in interpreting such tests; and that his opinion, based on his interpretation of the MMPI, that she did not suffer from brain damage and that her problems stemmed from some other source, was properly submitted to the jury.

2. Gerald Jacobs’ petition sought damages only for “the companionship, felicity and other consortium of his wife.” Consortium means “the rights and duties of both husband and wife, resulting from the marriage, in other words, the marital rights and duties of the spouses inter se, the reciprocal rights and duties of society, companionship, love, affection, aid, services, cooperation, sexual relations, and comfort, such being special rights and duties growing out of the marriage covenants. [Cits.]” W. J. Bremer Co. v. Graham, 169 Ga. App. 115, 116 (312 SE2d 806) (1983). Jacobs’ petition therefore did. not seek special damages. “When items of special damage are claimed, they shall be specifically stated.” OCGA § 9-11-9 (g). The only basis for the admission of the testimony proffered by Mr. Jacobs would have been pursuant to OCGA § 9-11-15 (b) allowing amendments to conform to the evidence. However, “[s]ince the [appellee] in this case made a clear objection to the evidence of the additional claims, it cannot be said that these claims were tried with the appellee’s express or implied consent.” Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979). “Clearly, the instant testimony falls within the meaning of this section in that the testimony presented was outside the pleadings and the defendant objected because such testimony would prejudice her in maintaining her defense. While the trial court is permitted to admit such evidence by allowing the pleadings to be amended and may grant a continuance to enable the objecting party an opportunity to prepare a defense, the above cited [Code section] does not require the trial court to admit testimony that is irrelevant and outside the pleadings. Thus, we are of the opinion that the trial court did not err in excluding the testimony in question.” (Emphasis supplied.) Madaris v. Madaris, 224 Ga. 577, 579 (163 SE2d 745) (1968). The court below did not err in refusing to allow him to prove his special damages.

Decided February 8, 1988

Rehearings denied February 23, 1988 and March 8, 1988

Jack L. Cooper, for appellant.

Richard E. Miley, for appellee.

Judgments affirmed.

Carley and Sognier, JJ., concur.