author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A0157.
    A89A0158, A89A0159.
    BOATRIGHT v. THE STATE. O’BERRY et al. v. THE STATE.
    (385 SE2d 298)
   Birdsong, Judge.

Appellant Holder Boatright was convicted of two counts of aggravated child molestation; appellant Frank O’Berry was convicted of two counts of enticing a child for indecent purposes; and, appellant Donna O’Berry was convicted of two counts of enticing a child for indecent purposes. Each appellant has appealed.

The children of appellants O’Berry, a girl age 9 and a boy age 8, testified that their parents and an uncle, Wayne Sims, took them on certain occasions to the garage of appellant Boatright who sexually abused each child in various ways; the abuse occurred in the presence of the parents on at least one occasion.

I. A89A0157, A89A0158 & A89A0159

1. Review of the transcript of these three companion cases in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that each appellant was guilty of the offenses of which he or she has been convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

II. A89A0157. Boatright v. The State

2. Appellant Boatright asserts the trial court erred in refusing to allow appellant to hear certain recorded tapes of prior statements made by the children which would be exculpatory or mitigating. The tapes consist of certain video tapes made of an interview of the two children conducted by the Pierce County Family & Children Services’ Department. Appellant asserted rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), to the production of the tapes or in the alternative for the trial court to conduct an in camera inspection thereof. The trial court denied the motion as it had reviewed a transcript of the tapes and the prosecutor’s entire file previously during the case of the co-defendant Wayne Sims. The trial court determined and expressly stated on the record that his inspection of the State’s file, which included the tapes transcript, disclosed nothing that is “exculpatory, mitigating or impeaching.”

Appellants moved to have the video tape transcript and State’s file attached to the record so these items would be available for appellate review. The record does not contain these items, and appellants have not made a timely motion to this court requesting that we order these matters forwarded for review. As a general rule, “ ‘(w)e will not call up the state’s files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material.’ ” Upshaw v. State, 172 Ga. App. 671, 672 (324 SE2d 529). We see no need to depart from this rule in this case. Moreover, appellants have now waived any right they may have had to assert as error the trial court’s failure to seal and forward the video tape transcript and State’s files with the trial record. Durham v. State, 239 Ga. 697, 700 (3) (b) (238 SE2d 334).

“Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case.” Walter v. State, 256 Ga. 666, 668 (352 SE2d 570). It is well-recognized that “Brady does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery.” Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30); Julian v. State, 134 Ga. App. 592 (3) (215 SE2d 496). Accordingly, appellant’s complaint that he was not provided with a copy of the video tapes for his own inspection is without merit; “ ‘this is not required under the holding in Brady or its progeny.’ ” See Hill v. State, 248 Ga. 304, 305 (283 SE2d 252).

Under the attendant circumstances the trial court’s prior examination in camera of the State’s entire file, including a copy of the video tape transcript, was an adequate in camera inspection to satisfy the requirements of Brady and its progeny.

Appellant specifically asserts that the video tape if reviewed by the court in lieu of the transcript thereof might reveal a demeanor on the part of the children during pre-trial interviews which could detract from their credibility if presented to the jury. This is entirely speculative. The defense is not entitled under Brady to engage in a mere fishing expedition into the files of the State. See Hicks v. State, supra at 396. “ ‘There is no general constitutional right to discovery in a criminal case, and Brady did not create one. . . .’ [Cit.] Brady cannot be read as requiring that ‘as a matter of constitutional law everything must be disclosed which might influence a jury.’ ” Castell v. State, 250 Ga. 776, 782 (301 SE2d 234); Massengale v. State, 189 Ga. App. 877 (377 SE2d 882).

Further, appellant has failed to carry his burden to show either that any type of Brady violation occurred, see generally Cromer, supra, or, that assuming error had occurred, he was prejudiced thereby. See generally Rogers v. State, 257 Ga. 590, 592 (361 SE2d 814); see also Parks v. State, 254 Ga. 403, 407 (330 SE2d 686). Accordingly, this enumeration of error is without merit.

3. Appellant Boatright asserts that the trial court erred in denying appellant’s motion to suppress evidence obtained through an improper and illegal search warrant. The evidence in question concerns certain sexually oriented materials found in the home of appellants Donna and Frank O’Berry. Appellant Boatright did not reside in that home, apparently was not present in the home when the materials were seized, and has not claimed any right of ownership or possession of said evidence.

We find that appellant Boatright has no reasonable expectation of privacy in the premises searched, neither has he asserted any valid right of ownership or possession in the property seized. See generally United States v. Salvucci, 448 U. S. 83 (100 SC 2547, 65 LE2d 619). Clearly, appellant Boatright has no standing to assert either a Fourth Amendment or a state constitutional challenge to this search and seizure. See generally Rich v. State, 188 Ga. App. 287, 288-289 (372 SE2d 670), citing Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387); Todd v. State, 184 Ga. App. 750 (2) (362 SE2d 400); Sanders v. State, 181 Ga. App. 117 (1) (351 SE2d 666). See also Section III, Division 8 below.

III. A89A0158. Frank O’Berry v. The State

4. Appellant Frank O’Berry asserts on general grounds that the trial court erred in denying his motion for new trial. We disagree. See Division 1, above.

5. Appellant Frank O’Berry asserts the trial court erred in allowing the children to testify while sitting at a small round table in front of and facing the jury, allegedly with their backs to the defendants and attorneys; erred in allowing their foster father to stand behind them while they testified, allegedly shielding them from the defendants; and, erred in taking no corrective action regarding a statement made by the assistant district attorney during closing argument to the effect that the sheriff and the foster father had to stand behind the children because they are in constant fear someone will get them.

The record reveals that the thrust of appellant’s objections at trial to the seating of the children was that such seating could give undue weight to their credibility and testimony thereby prejudicing appellants. After an initial objection was raised that the seating arrangement might prevent the defendants and their attorneys from seeing the children while they testify, the trial judge allowed the attorneys and the defendants to position themselves at certain locations in the courtroom. Further, prior to the testimony of the first child, one defense attorney requested that “we be allowed to move,” and the request was granted. Later, during the same child’s testimony, the defendants and their attorneys were allowed to reposition themselves; however, the defendants were not allowed to stand around the witness box closer to the child witness. Thereafter, neither the defendants nor their attorney asserted on the record that their vision or hearing of the children was impaired. Further, at no time was an objection made or was it otherwise reflected in the trial record that the foster father of the children was “shielding” them from defendants during the children’s testimony. Regarding the assertions made in appellant’s brief concerning these matters, we have consistently held that factual assertions contained in the parties’ briefs unsupported by evidence of record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (366 SE2d 223).

It was not error to allow the foster parent of the children, who was not a witness in the case subject to sequestration, to stand behind the children during their testimony. Benton v. State, 184 Ga. App. 684 (4) (362 SE2d 421).

It was not error to allow the children to sit at the small table in front of the jury. Ortiz v. State, 188 Ga. App. 532 (2) (374 SE2d 92). This case is distinguishable from Coy v. Iowa, 487 U. S._(108 SC 2798, 101 LE2d 857) where a one-way screen was employed that was specifically designed to enable the complaining witnesses to avoid viewing the appellant as they gave their testimony. “Although in the present case the angle of the witness chair [at the little table] did make it possible for the [children] to avoid looking directly into the eyes of the appellant [s], it was also possible that the [children] could see the appellant[s] with the mere turning of their head. . . . Not only did the appellant [s] have the opportunity to a thorough and sifting cross-examination of each victim, but the victims’ in-court testimony occurred in view of the judge and jury, who were able to observe their demeanor and determine the credibility of their testimony.” Ortiz, supra at 534. We find no evidence of record supporting a contention that the attorneys’ ability to conduct cross-examination on their clients’ behalf or their clients’ ability to assist in their own defense was in any way substantially impaired by an inability to see and hear the children adequately when they testified. Having found that no error occurred in seating the children at a round table with their foster parent standing behind them when they testified, we do not have occasion to test for harmless error. See generally Coy, supra, 101 LE2d at 867.

Appellant Frank O’Berry’s assertion that the trial court erred in taking no corrective action regarding the prosecutor’s statement during closing argument, concerning the reason the sheriff and foster parent stood behind the children, also is without merit. Appellants objected ' timely to the statement, but did not request a mistrial, a curative instruction, or a rebuke of counsel. See generally OCGA § 17-8-75. The trial judge responded to the objections of counsel by stating: “You’ve made your objection, don’t be argumentative. The objection is sustained. The statement was improper.” (Emphasis supplied.) It is clear that the trial judge sustained the objection. Thereafter, counsel requested no further curative action. “This court has held that ‘if the trial court is not requested to take further curative action (following an objection to . . . improper remarks by the prosecutor), this failure to act cannot be addressed on appeal as error, although the original improper statement may be examined for reversible error.’ ” Oller v. State, 187 Ga. App. 818, 823 (371 SE2d 455); see Cherry v. State, 174 Ga. App. 145 (2) (329 SE2d 580). We are satisfied that the statement, especially in view of the prompt action by the trial judge, did not constitute prejudicial error. Compare Oiler, supra at 821-823. Appellant’s assertion that the trial court “cut them off and refused to allow them to go further” in seeking relief from the prosecutor’s improper statement is without merit. The record clearly shows that the appellants acquiesced in the trial court’s ruling. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536).

The multiple assertions of error contained within this single enumeration of error are all without merit. The bar is strongly reminded that, pursuant to OCGA § 5-6-40, multiple errors shall not be asserted in a single enumeration.

6. Appellant Frank O’Berry asserts the trial court erred in allowing the State to ask questions of witnesses regarding the plea of guilty of a co-defendant, Wayne Sims, as such questions were irrelevant, inadmissible and prejudicial. We disagree. It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose. Orr v. Dawson Tel. Co., 35 Ga. App. 560 (2) (133 SE 924); see Wyatt v. State, 206 Ga. 613, 616-617 (57 SE2d 914); see also 1 Wig-more on Evid. 694, § 13. Further, “[a]dmission of evidence . . . rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. . . . Georgia law favors admission of any relevant evidence no matter how slight its probative value.” Whisnant, supra at 743 (1). In this instance, references to the Wayne Sims’ guilty plea were inextricably connected with the prosecutor’s questions relating to witness bias. “[E]xposing potential bias on the part of a witness and witness motivation for testifying, is a proper and important function of cross-examination. [Cit.] ‘A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.’ ” Mulkey v. State, 250 Ga. 444 (2) (298 SE2d 487). Considering the family relationship of the defendant parents, the victims, the concerned witnesses and Wayne Sims, the co-defendant, and the direct and pointed nature of the questions asked, we find that the trial judge did not abuse his discretion in allowing the questions and in denying appellants’ motion for mistrial. Moreover, under the operative facts of this case, we are satisfied that the probative value of the questions in regard to the witnesses’ bias outweighed any potential for prejudice to the appellants.

7. Appellant Frank O’Berry asserts that the trial court erred in refusing to allow appellant to view the video tapes, and by refusing to make an in camera inspection or to order the tapes sealed and made a part of the record. This enumeration of error is without merit. See Section II, Division 2, above.

8. Appellant Frank O’Berry asserts that the trial court erred in denying appellants’ motion to suppress evidence through an illegal search and seizure. The trial court denied appellants’ motion to suppress on the grounds the motion failed to establish the facts relied upon to show that the search and seizure were illegal or that the warrant was insufficient, citing Cadle v. State, 131 Ga. App. 175 (205 SE2d 529).

OCGA § 17-5-30 establishes the statutory procedure which must be followed to suppress as evidence anything obtained as a result of an unlawful search or seizure on certain specified grounds, including the grounds that “[t]he search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.” OCGA § 17-5-30 (a) (2). OCGA § 17-5-30 (b) expressly requires that the “motion [to suppress] shall be in writing and state facts showing that the search and seizure were unlawful.” (Emphasis supplied.) See generally State v. Slaughter, 252 Ga. 435, 438 (315 SE2d 865); Hunter v. State, 249 Ga. 114 (2) (288 SE2d 214); Smith v. Hopper, 240 Ga. 93 (3) (239 SE2d 510); State v. Blosfield, 165 Ga. App. 111 (2) (299 SE2d 588); Cadle, 131 Ga. App., supra. Compare Lavelle v. State, 250 Ga. 224 (3) (297 SE2d 234) (use of negative facts permissible with respect to warrantless searches); accord Slaughter, supra at 438, n. 3. Moreover, our Supreme Court has held that “all motions to suppress [evidence obtained during an unlawful search or seizure whether based on statutory or non-statutory grounds] should be governed by OCGA § 17-5-30 (Code Ann. § 27-313) ... to the extent possible.” Slaughter, supra at 439. Thus, all motions to suppress, whether based on statutory or non-statutory grounds must “ ‘state facts’ ” and not merely “conclusions.” See Slaughter, supra at 439, n. 5.

The motion to suppress pertinently states: “I hereby move to suppress any evidence obtained pursuant to a search of the home of Frank & Donna O’Berry due to such search being illegal and the search warrant being obtained without just or probable cause. Also, the warrant shows on its face that the warrant was issued without probable cause & all evidence seized thereby was illegal & should be suppressed.”

We find that the trial judge correctly concluded that the motion to suppress did not state facts showing that the search and seizure were illegal. Rather the motion contains only a series of conclusions unsupported by statements of fact. Accordingly, the motion did not meet the statutory requirements of OCGA § 17-5-30 (b), and the trial court did not err in its disposition of the motion. Smith, supra at 95; Hayes v. State, 168 Ga. App. 94 (4) (308 SE2d 227); West v. State, 146 Ga. App. 120 (1) (245 SE2d 478); Cadle, 131 Ga. App., supra; compare, Mosier v. State, 160 Ga. App. 415 (287 SE2d 357).

Appellant cites this court to the second Cadle case, Cadle v. State, 136 Ga. App. 232 (221 SE2d 59), and thereafter argues that the court erred in not allowing him to proceed on the substantive merits of his suppression motion. For reasons above discussed, we are satisfied the court did not err; for applicability of Cadle, 136 Ga. App. 232, to the case sub judice, see Section IV, Division 11 below. Appellant’s enumeration of error is without merit.

IV. A89A0159. Donna O’Berry v. The State

9. Appellant Donna O’Berry asserts that the trial court erred in refusing to allow her to hear certain recorded video tapes of prior statements by the children, which would be exculpatory or mitigating. This enumeration of error is without merit. See Section II, Division 2.

10. Appellant Donna O’Berry asserts that the trial court erred in admitting inadmissible evidence and allowing such evidence to go to the jury. Appellant states that this motion is based upon the evidence which was allowed to go to the jury after the trial court denied her motion to suppress, “all as set forth” in her third and final enumeration of error, Division 11, below. Accordingly, any issue potentially contained within this broad enumeration of error as to which there has not been any argument or citation of authority made in appellant’s brief, is deemed abandoned. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315). Appellant’s enumeration of error is without merit. See Section III, Division 8, above and Section IV, Division 11, below.

11. Appellant asserts that the trial court erred in denying her motion to suppress evidence obtained through an improper and illegal search warrant. We disagree.

For reasons stated in Section III, Division 8, above, we find the trial court did not commit error by its disposition of appellant’s motion to suppress.

However, appellant also asserts that the trial court erred in failing to grant co-counsel’s request for “additional time to perfect the record in order that the motion [to suppress] could be amended.”

In Cadle, 136 Ga. App., supra at 233, we held that “the trial court erred in refusing to allow appellant to amend his motion to suppress and thereafter consider the motion on its substantive merits.” (Emphasis supplied.) We find that Cadle, 136 Ga. App., supra, is distinguishable from the facts of this case.

The trial transcript reflects that following the trial court’s ruling declining to hear the motion to suppress on its substantive merits, counsel made the following oral motion: “We ask for additional time to perfect that record.” A request for a continuance to perfect the record does not inherently include a request to amend a suppression motion. Accordingly, we find that unlike Cadle, 136 Ga. App., supra, the trial court has not denied a timely and specific motion by appellant to amend a suppression motion.

Further, “[a] motion for continuance based on insufficient time of counsel to prepare for trial addresses itself to the sound discretion of the trial judge and the denial of such a motion will not be interfered with unless the court has abused its discretion.” Johnson v. State, 182 Ga. App. 477 (3) (356 SE2d 101). “The judge has discretion in regulating and controlling the business of the court and an appellate court should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from its abuse.” Sanders v. State, 182 Ga. App. 581, 585 (356 SE2d 537).

The transcript reflects that the trial judge allowed appellants to file their suppression motion even though certain State’s witnesses already had testified on the merits of the prosecution’s case, that the parties were granted approximately an hour and thirty minutes to prepare for the motion, that appellants were provided with a copy of the search warrant before the trial court’s ruling, that all appellants joined in the motion as written, and that the trial judge ascertained on the record the appellants were ready to proceed on the motion as written. Only after the trial judge ruled the suppression motion was fatally deficient did appellants attempt to obtain additional time to perfect the record.

Decided June 27, 1989

John R. Thigpen, Sr., for appellant (case no. A89A0157).

M. C. Pritchard, for appellant (case no. A89A0158).

Jeffrey S. Parker, for appellant (case no. A89A0159).

Harry D. Dixon, Jr., District Attorney, Margaret M. Edwards, Assistant District Attorney, for appellee.

We find that under these circumstances the trial court judge did not abuse his discretion, and did not err in denying appellant’s motion for “additional time.”

The remaining assertions of error of each appellant have been reviewed and are without merit.

Judgments affirmed.

Deen, P. J., and Benham, J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

While I concur fully with the majority opinion, additional comments are appropriate.

The crimes of aggravated child molestation and enticing a child for indecent purposes, under the facts of this case, include infliction of both mental and physical pain and abuse of the two young children. A micro, modicum, or major part of motivational manipulation of the molestation modus, relating to the mental aspects, is the obvious operandi of obsession with the obscene magazines and other material evident in this case. Introduced into evidence and before the jury were books included in the lengthy transcript amounting to almost a thousand pages. These massive magazine materials include close-up pornographic photographs with stimulating and sensuous sexually suggestive titles, which will not be here enumerated.

The production and providing of pornographic photography promoting permissiveness and perversion pointing to mental pain and abuse is no less pertinent than physical abuse portions and ingredients of the aggravated child molestation charges and enticing a child for indecent purposes, as perpetrated against the eight-and nine-year-old children in this case.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A1159.
    WILLIAMS v. CITY OF PEACHTREE CITY.
    (385 SE2d 680)
    Decided June 28, 1989.

      Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

      Glover & Davis, Michael E. Sumner, for appellee.
   Banke, Presiding Judge.

The appellant petitioned the Superior Court of Fayette County for certiorari to review his convictions in the Municipal Court of Peachtree City of driving under the influence of alcohol and driving without insurance. On motion by the city, the trial court dismissed the petition on the ground that it erroneously sought, via one application, review of two separate convictions. See Continental Wrecking Co. v. City of East Point, 81 Ga. App. 69 (57 SE2d 699) (1950). Thereafter, the appellant filed a separate petition seeking review of his DUI conviction. The trial court granted the appellee’s motion to dismiss this petition on res judicata grounds, concluding that the previous dismissal operated as an adjudication on the merits. The case is before us pursuant to our grant of the appellant’s application for a discretionary appeal. See generally OCGA § 5-6-35 (a) (1). Held:

The dismissal of the initial certiorari petition clearly was predicated on the court’s lack of jurisdiction to entertain a single petition seeking review of two separate convictions. See Continental Wrecking Co. v. City of East Point, supra; Holtzendorf v. State, 78 Ga. App. 801 (1) (52 SE2d 624) (1949). Pursuant to OCGA § 9-11-41 (b), a dismissal for lack of jurisdiction does not operate as an adjudication on the merits. It follows that the appellant was not barred by the doctrine of res judicata from filing a new petition to the superior court seeking review of his DUI conviction, with the result that the trial court erred in granting the city’s motion to dismiss.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A0191.
    ROBERTSON v. N. N. INVESTORS LIFE INSURANCE COMPANY, INC.
    (385 SE2d 681)
   McMurray, Presiding Judge.

Plaintiff Robertson brought an action against his health insurance carrier, N. N. Investors Life Insurance Company, Inc. (defendant), to recover medical expenses he allegedly incurred as a result of a medical procedure “known as a penile implant.” Defendant denied the material allegations of the complaint and filed a motion for summary judgment.

The undisputed evidence shows that plaintiff was covered under a health insurance policy issued by defendant and that the policy provided that “no benefits shall be payable ... for any expenses caused by, incurred for, or resulting from . . . [c] osmetic surgery, which term includes but is not limited to . . . penile implants . . . .” The trial court found from the evidence before it that plaintiff’s penile implant surgery was not covered under the insurance policy and granted defendant’s motion for summary judgment. This appeal followed. Held:

1. In his sole enumeration of error, plaintiff contends the trial court erred in granting defendant’s motion for summary judgment, arguing that a question of fact remains as to whether his penile implant was “organic in nature.” This argument is based on the assumption that the insurance policy covers penile implants that are “organic in nature.”

“ ‘We are guided in our consideration of the case [sub judice] by the principles of law set forth in Lester v. Great Central Ins. Co., 138 Ga. App. 353, 354-355 (226 SE2d 149) (1976): “Insurance is a matter of contract, and the language used is to be accorded its general ordinary meaning, bearing in mind that the contract is to be construed in accordance with the intention and understanding of the parties, and in construing it the court cannot go further than a fair construction of the language used will permit. Where the contract is unambiguous, it must be construed to mean what it says. This rule applies to language limiting coverage. Of course if the contract is ambiguous the ambiguity is to be resolved against the insurer. But ambiguity is not to be created by lifting a clause or portion of the contract out of context. The natural, obvious meaning is to be preferred over any curious, hidden meaning which nothing but the exigency of a hard case and ingenuity of a trained and acute mind would discover.” ’ (Citations and punctuation omitted.) Okehi v. St. Paul Fire &c. Ins. Co., 161 Ga. App. 851, 853 (289 SE2d 810) (1982).” St. Paul Fire &c. Ins. Co. v. Cohen-Walker, Inc., 171 Ga. App. 542, 544 (1) (320 SE2d 385).

In the case sub judice, the provision of the policy excluding penile implants is clear and unambiguous. The fact that the policy characterizes penile implant surgery as “cosmetic surgery” does not bring into question the nature of plaintiff’s penile implant. It merely defines the surgery and excludes such coverage. Consequently, this enumeration raises no issue which requires reversal of the trial court’s grant of defendant’s motion for summary judgment.

Decided June 29, 1989.

Cramer, Weaver & Edwards, Timothy C. Cramer, for appellant.

Notte & Bianco, Theodore P. Bianco, Mullins, Whalen & Shepherd, Andrew Whalen III, for appellee.

2. Defendant’s motion for an assessment of damages for a frivolous appeal pursuant to Rule 26 (b) of the Rules of the Court of Appeals of the State of Georgia is denied.

Judgment affirmed. Motion for frivolous appeal denied.

Carley, C. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    A89A0593, A89A0594.
    BORG-WARNER ACCEPTANCE CORPORATION v. VALENTINE ASSOCIATES LIMITED CORPORATION; and vice versa.
    (384 SE2d 223)
   Benham, Judge.

Appellant Borg-Warner Acceptance Corporation (Borg-Warner) seeks reversal of the summary judgment denied it and granted to ap-pellee Valentine Associates Limited Corporation (Valentine) in Valentine’s action alleging Borg-Warner’s unjust enrichment. Valentine cross-appeals, contending that the trial court erred in granting Borg-Warner’s motion for summary judgment with respect to Valentine’s claim for attorney fees, thereby denying Valentine the attorney fees it sought pursuant to OCGA § 13-6-11. In the interest of judicial economy, we have consolidated the two appeals.

The facts, simply stated, are as follows: Appellant Borg-Warner finances mobile homes for dealers, and did so for Rutherford Mobile Homes (Rutherford). Borg-Warner provided “floor-plan financing” for Rutherford, and by agreement Rutherford acquired mobile homes for its inventory while Borg-Warner held security interests in and secured present and future advances for that inventory, thus allowing Rutherford to sell its merchandise to the public. A Catalina mobile home (Catalina) was included in Rutherford’s inventory, and Borg-Warner held a valid, perfected security interest in the unit. Appellee Valentine purchases mobile home retail installment sales contracts from retail dealers, including Rutherford. A Rutherford customer bought the Catalina, but before the sale became final, the customer rescinded the contract and did not take delivery of the unit. Valentine, not knowing of the rescission, paid Borg-Warner $23,050 on Rutherford’s behalf as a contract payoff for the Catalina, which was still a part of Rutherford’s inventory. When Valentine discovered that the sale to Rutherford’s customer had not been consummated, it issued a stop payment order on the $23,050 check, but Borg-Warner had already deposited it. Several months later, Rutherford defaulted on its other obligations to Borg-Warner, which repossessed all of Rutherford’s inventory including the Catalina, although Borg-Warner still retained the $23,050 that Valentine had paid it for the Catalina. The assets Borg-Warner obtained in the repossession were insufficient to satisfy the debt Rutherford owed to Borg-Warner. Valentine sued Borg-Warner for unjust enrichment as to the $23,050 and, alternatively, for a constructive trust of the Catalina. After discovery, Borg-Warner moved for summary judgment, claiming that Valentine was negligent in its handling of the transaction and that pursuant to OCGA § 11-9-312 (3), Borg-Warner was merely enforcing its rights as a secured creditor with priority over the Catalina as part of the repossessed inventory and proceeds. The trial court ruled in favor of Valentine and against Borg-Warner on the unjust enrichment issue, and against Valentine on its claim for attorney fees. We find no error.

1. Borg-Warner’s claim that under OCGA § 11-9-312 (3) it is allowed to retain the Catalina and the $23,050 that Valentine paid for the Catalina is unsound. In setting out the priorities among conflicting security interests in the same collateral, § 11-9-312 (3) states, “A perfected purchase money security interest in inventory has priority over a conflicting security interest in the same inventory and also has priority in identifiable cash proceeds received on or before the delivery of the inventory to a buyer if [certain conditions are met.]” “Goods are ‘inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service. . . .” OCGA § 11-9-109 (4). “Proceeds” of inventory is “whatever is received upon the sale, exchange, collection, or other disposition of collateral. . . .” OCGA § 11-9-306 (1). Under the statutory definitions, the Catalina was inventory at the time of repossession since it was being held for sale or lease. Borg-Warner was not entitled to retain the $23,050, which would have been the “identifiable cash proceeds” of the Catalina if the intended consumer sale had been consummated, because no sale, exchange, collection or other disposition of the collateral actually occurred. Borg-Warner was entitled to retain either the Catalina as inventory or the proceeds from the Catalina sale if it had been completed, but not both. Without a “sale, exchange, collection or other disposition” related to it, the $23,050 payment did not become proceeds, but was merely an erroneous payment made to Borg-Warner, one that the company was obligated to repay Valentine once it took possession of the Catalina. Having failed to make the repayment, Borg-Warner was unjustly enriched thereby, notwithstanding Valentine’s failure to perfect its security interest in the trailer. The trial court correctly ruled in Valentine’s favor and against Borg-Warner on the unjust enrichment issue.

Decided June 29, 1989.

Churchill & Ferguson, Glenn A. Delk, Richard A. Kaye, for appellant.

2. Appellant’s contention that the trial court committed reversible error by reaching its decision without reviewing the depositions is without merit. Appellant apparently believes that the trial court did not review the depositions, which had been filed before the trial court ruled on the motions, because the record includes an order, filed after the final judgment, which directs the clerk of court to unseal the depositions for transmittal to this court. However, the trial court specifically states in its final judgment that it considered the pleadings, admissions, depositions, briefs, and the record in its entirety. This was a sufficient showing of review of the documents even if the depositions had still been sealed, and so there is no error. Smith v. Jones, 154 Ga. App. 629 (1) (269 SE2d 471) (1980).

3. Valentine’s claim for attorney fees and expenses of litigation, which the trial court rejected, was based on the “stubbornly litigious” provision of OCGA § 13-6-11. “Recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy. [Cits.]” Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 461 (283 SE2d 676) (1981). Valentine contends that there was no bona fide controversy because Borg-Warner’s agent told Valentine’s agent that the payoff money would be returned if the mobile home had not been delivered to the purchaser or used as a residence; and that in spite of the conditions having been met, Borg-Warner refused to return the money. A review of the record shows that Borg-Warner’s agent, Mr. Kennedy, acknowledged that the Catalina had not been delivered or used; that he told Valentine’s agent he had “no problems” with returning the money, but that his legal counsel had advised him differently; that he could not re-floor the unit and return the money; and that he suggested to Valentine’s agent that Valentine stop payment on the check. It does not appear from the record that Borg-Warner was being stubbornly litigious; it was merely relying on the advice of its legal counsel. There was a bona fide controversy, although it was not resolved in Borg-Warner’s favor, and so an award of attorney fees would have been improper. Bayliner Marine Corp., supra. The trial court ruled correctly with respect to the issue of fees.

Judgment affirmed.

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

Boyce, Thompson & O’Brien, R. Michael Thompson, J. Patrick O’Brien, William M. Coolidge III, for appellee.


text:
    A89A0779.
    STONE v. DAWKINS et al.
    (384 SE2d 225)
   Banke, Presiding Judge.

The appellees filed a dispossessory warrant against the appellant in the State Court of DeKalb County. The appellant was served with process in the action on October 5, 1988. On October 11, 1988, he mailed an answer to the clerk by certified mail, but the answer was not received by the clerk’s office until October 13, 1988, which was one day beyond the seven-day period in which the answer was required to be filed. See OCGA § 44-7-51 (b). Consequently, on October 17, 1988, a default judgment was entered against him.

On November 15, 1988, which was within the same term of court in which the judgment had been entered, the appellant filed a “Motion to Open Default and Vacate Judgment,” contending that his answer would have reached the clerk’s office one day earlier but for an error on the part of the United States Postal Service. That motion was denied on December 19, 1988; and on January 3, 1989, he filed the present appeal. Held:

There are two different sources of authority pursuant to which a trial court may set aside a judgment. One is OCGA § 9-11-60 (d), which specifies that a judgment may be set aside on the basis of “some nonamendable defect which does appear upon the face of the record or pleadings” or on the basis of “lack of jurisdiction over the person or subject matter, regardless of whether such lack of jurisdiction appears upon the face of the record or pleadings.” Id. The other is the trial court’s “inherent power to amend or set aside a judgment for any ‘meritorious reason,’ provided the motion to set aside is filed during the term in which the judgment was rendered.’ ” Goode v. O’Neal Banks & Assoc., 165 Ga. App. 162 (300 SE2d 191) (1983).

In a brief filed in the trial court, the appellant indicated that he in fact intended for his motion to be treated neither as a statutory nor as a “discretionary” motion to set aside but rather as a complaint in equity, filed pursuant to OCGA § 9-11-60 (e). However, regardless of the legal basis for the motion, it is clear that its denial was not directly appealable and that the present appeal must consequently be dismissed.

Pursuant to OCGA § 5-6-35 (a) (8), an application for appeal must be filed in all cases where appeal is sought “from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment. . . .” No such application was filed in the present case. The denial of a “discretionary” motion to set aside, on the other hand, is never appealable in its own right; nor does the filing of such a motion extend the time for filing an appeal. See Johnson v. Barnes & Co., 237 Ga. 502 (1) (229 SE2d 70) (1976); Dougherty County v. Burt, 168 Ga. App. 166, 167 (1), 170 (308 SE2d 395) (1983); Bartlett v. Hembree, 177 Ga. App. 253 (339 SE2d 388) (1985).

Decided June 30, 1989.

Gregory E. Stuhler, for appellant.

William J. Dawkins, for appellees.

Although in Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (366 SE2d 394) (1988), this court recently held that “[t]he denial of a ‘discretionary’ motion to set aside a default judgment is an appealable final judgment,” that holding was mistaken and is hereby overruled. The Supreme Court decision on which it was based, Shannon Co. v. Heneueld, 235 Ga. 635 (221 SE2d 200) (1975), was not apposite because it was predicated on precedent involving statutory rather than “discretionary” motions to set aside. See Farr v. Farr, 120 Ga. App. 762 (172 SE2d 158) (1969); Mayson v. Malone, 122 Ga. App. 814 (2) (178 SE2d 806) (1970). A “discretionary” motion to set aside is simply a request for the trial court to reconsider its decision, and we reiterate that the denial of such a motion is not an appealable judgment. See Dougherty County v. Burt, supra, 168 Ga. App. at 170.

Appeal dismissed.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    A89A0141, A89A0260.
    MITCHELL v. WYATT (two cases).
    (384 SE2d 227)
   Beasley, Judge.

Plaintiff Mitchell appeals adverse judgments in two separate suits against Wyatt for injuries which Mitchell allegedly sustained as a passenger in an automobile driven by Wyatt when it collided with another vehicle. The suits have been consolidated on appeal.

The chronology of the litigation is dispositive of the appeals. Mitchell filed a complaint against Wyatt in the State Court of Fulton County and on October 30, 1987, a default judgment was entered against Wyatt. On January 5, 1988, Wyatt moved to set aside the judgment for lack of jurisdiction over his person, per OCGA § 9-11-60 (d) (1). After hearing evidence and argument, the trial court granted the motion to set aside on February 15, finding that Wyatt had not been properly served as contemplated by OCGA § 9-11-4 (d) (because he was not a resident at the place the marshal left service with his sister) and “thereby” he was not subject to the jurisdiction of the court. Mitchell filed a notice of appeal on March 7.

In May, Mitchell filed virtually the identical suit against Wyatt in the State Court of DeKalb County inasmuch as the evidence at the Fulton hearing indicated he was a resident there, and Wyatt was served on May 20. He answered on June 17, asserting as a defense the pendency of the Fulton County action, and on July 5 moved for summary judgment in DeKalb on that basis.

At the behest of plaintiff Mitchell, another judge of the Fulton court entered a “Final Order of Dismissal” on July 13, reciting again that defendant’s motion to set aside the judgment in the Fulton suit was granted because of improper service and stating: “the within action is hereby dismissed with this the final order of the Court.” The next day plaintiff filed an amended notice of appeal which indicated appeal was from that “judgment” instead of from the February 15 “judgment.” On July 20, plaintiff filed a withdrawal of the “Notice of Appeal previously filed in the above-styled action” apparently referring to the first notice, related to the February 15 order. On July 21, an order vacating the July 13 order was filed. At this juncture, then, the last order in place was the February 15 order, from which no appeal was pending. On July 26 plaintiff filed a “Motion for Order of Dismissal Without Prejudice” because of the February 15 order setting aside judgment for improper service. The Fulton court entered an order of dismissal on August 18. I

On August 31, in the DeKalb suit, defendant filed a reply brief in support of his summary judgment motion. He again argued the pen-dency of the Fulton suit and chronicled its events asserting, inter alia, that the Fulton State Court order of July 13 was obtained ex parte and through misrepresentation and that the Fulton court reconsidered and vacated the order. Defendant further argued that summary judgment should be granted also because there existed no genuine issue of material fact to be tried. The DeKalb court granted defendant’s motion for summary judgment.

In case number A89A0141, plaintiff Mitchell appeals the grant of summary judgment in the DeKalb action. In case number A89A0260, Mitchell appeals from the August 18, 1988, order of dismissal without! prejudice in the Fulton action. §

Case No. A89A0260

1. Appellee Wyatt moves to dismiss the appeal on the basis that! appellant seeks the reversal of an order which she herself sought. I Although appellant enumerates as error the trial court’s granting! of appellee’s motion to set aside the default judgment on February 15 on the ground that it was inconsistent with the facts and the law, appellant’s notice of appeal is unquestionably from the August 18, 1988, order of dismissal without prejudice, which she initiated.

“Subject to the provisions of subsection (c) of Code Section 9-11-23, of Code Section 9-11-66, and of any statute, an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” OCGA § 9-11-41 (a). Such a voluntary dismissal terminates the action. See Page v. Holiday Inns, 245 Ga. 12, 13 (262 SE2d 783) (1980). Here, there was no objection to the dismissal nor were there any claims surviving for adjudication; therefore, plaintiff seeks to appeal from an action which has been terminated by her own hand. “It is axiomatic that at the appellate level1 “(o)ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” ’ [Cit.]” Management Search v. Avon Prods., 166 Ga. App. 262, 263 (1) (304 SE2d 426) (1983).

Even if the action had survived for the purposes of appeal, appellant could not now complain of the setting aside of the default judgment. When a “ ‘default judgment is vacated and set aside, jurisdiction remains in the trial court and the judgment is neither final within the meaning of (OCGA § 5-6-34 (a) (1)) nor directly appealable within the provisions of OCGA § 5-6-34 (a) (2-9)).’ [Cit.]” Walton v. Collins, 172 Ga. App. 736 (324 SE2d 574) (1984). Appellant did not obtain a certificate of immediate review from the February 15 order but instead filed a direct notice of appeal, which notice was later withdrawn.

Jurisdiction of this appeal is missing and appellee’s motion to dismiss is granted.

2. Appellee’s motion for the imposition of penalties against appellant for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is likewise granted. The trial court is hereby directed to enter judgment for a $500 penalty against appellant and in favor of appellee upon the return of the remittitur. See Hulstzman v. State Farm Fire &c. Co., 188 Ga. App. 12, 13 (3) (372 SE2d 9) (1988).

Case No. A89A0141

“No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. ... if two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” OCGA § 9-2-5.

When appellant filed the DeKalb suit in May, the Fulton suit was still pending although judgment for defendant had been set aside. The Fulton suit did not stand dismissed for lack of jurisdiction. Plaintiff could have voluntarily dismissed it or obtained its dismissal prior to filing the DeKalb suit. The prohibition of OCGA § 9-2-5 applied. Appellant’s subsequent voluntary dismissal of the Fulton suit did not avoid the merit of appellee’s statutory defense of pendency. Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 718 (4) (334 SE2d 219) (1985). Based on pendency alone, the DeKalb court correctly granted summary judgment to appellee.

Decided July 3, 1989.

George P. Graves, for appellant.

Swift, Currie, McGhee & Hiers, William P. Claxton, for appellee.

Judgment affirmed in Case No. A89A0141. Appeal dismissed with damages in Case No. A89A0260.

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


text:
    A89A0224.
    ANDERSON v. WILLIAMS.
    (384 SE2d 229)
   Beasley, Judge.

Cheryl Anderson appeals from judgment on a jury verdict after her motion for new trial was denied. On February 14, 1981, she wrecked the Mercury she was driving in attempting to avoid the vehicle of Harold Williams which was parked on a bridge at night with no visible lights. A few days later, she was treated for injuries she received in the collision. Then on February 21, 1981, she was involved in another automobile collision. She also suffered injuries from that incident for which she recovered damages as a result of a settlement of her claim.

Anderson sued Williams and served Continental Insurance Company as an uninsured motorist carrier pursuant to OCGA § 33-7-11. She sought recovery for hospital expenses, for damages to the automobile and for pain and suffering. The Mercury was insured under a Continental policy naming as insured Charles Anderson, from whom she was divorced on February 5, 1981. Under the terms of a settlement agreement incorporated into the decree, the automobile which was titled to Charles and financed through Ford Motor Credit was apportioned to Cheryl. She was to make payments and upon completion Charles was to convey title to her.

Continental answered the complaint and asserted as a defense that the policy did not afford uninsured coverage on the claim against Williams. Prior to trial, Continental admitted that Williams’ negligence was the proximate cause of the collision and under the pretrial order Charles was eliminated as a party to the case.

At the trial Ms. Anderson sought recovery only for her pain and suffering and damages to the Mercury. Continental sought to establish she had already recovered for all her personal injuries because of the settlement of the February 21 claim and neither she nor the vehicle she was driving on February 14 was covered under the policy issued to Charles.

The jury awarded her damages for the automobile but none for her pain and suffering. It further found that Charles did not have an insurable interest in the Mercury on February 14 and thus there was no uninsured motorist coverage provided. Judgment was entered on the verdict and Anderson’s motion for new trial was denied.

She enumerates four errors: 1) failure of the trial court to direct a finding that the insurance policy was binding upon the insurer; 2) deprivation of her right to open and close; 3) inadmissibility of PIP benefits paid to her; 4) allowing evidence of her recovery for pain and suffering in another case.

These enumerations of error were waived by appellant in the proceedings below and thus preclude our review.

1. As to the first enumeration, counsel for plaintiff agreed to “go along with” the ruling of the trial court on whether there was an issue as to insurable interest. Acquiescence in the ruling eliminates complaint. Upshaw v. Cooper, 127 Ga. App. 690, 692 (1) (194 SE2d 618) (1972); J & F Car Care Svc. v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504) (1983); Allen v. Allen, 198 Ga. 267 (31 SE2d 481) (1944). Moreover, the basis asserted below is not the one argued here. Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 860 (5) (360 SE2d 418) (1987).

2. As to the second enumeration, plaintiff relies upon the rule that the right to open and close are lost if defendant introduces evidence of facts which are material to the defense. Justice v. Ga. Power Co., 164 Ga. App. 599 (1) (298 SE2d 579) (1982). She contends that defendant did not admit a prima facie case and introduced seventeen exhibits which forfeited its right.

During the trial plaintiff’s objection was made only when defendant sought to introduce certain depositions, and not for the reason that defense exhibits were introduced during examination of plaintiff’s witnesses. Upon the trial court’s ruling that the depositions would deprive defendant of the opening and conclusion, it withdrew them. This ground reveals no error. MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (275 SE2d 142) (1980).

3. Plaintiff did not object to the introduction of evidence of PIP benefits and cannot complain at this stage. Hall v. Robinson, 165 Ga. App. 410, 412 (4) (300 SE2d 521) (1983).

4. Counsel for plaintiff agreed not to object to evidence of recovery for injuries which Continental contended encompassed those which Anderson testified had resulted from the February 14 occurrence. Continental’s purpose was to show the injuries actually arose from other incidents and not from the collision in question. “ ‘(T)hat to which opposing counsel agree during the progress of a trial cannot be assigned as error.’ ” Ga. Power Co. v. Bishop, 162 Ga. App. 122, 124 (5) (290 SE2d 328) (1982). See Rosenthal v. Hudson, 183 Ga. App. 712, 713 (2) (360 SE2d 15) (1987).

Decided July 3, 1989.

D. Duston Tapley, Jr., for appellant.

Wilson R. Smith, for appellee.

Judgment affirmed.

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


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0383.
    In the Interest of K. T. B., a child.
    (384 SE2d 231)
   Carley, Chief Judge.

The issue presented for resolution in this appeal is the meaning of “available to testify” as that phrase is employed in OCGA § 24-3-16: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (Emphasis supplied.)

This issue arises in the following context: A delinquency petition was filed, alleging that appellee K. T. B. had committed an act of child molestation. The petition was predicated upon the accusations of a three-year-old child. The juvenile court determined that the three-year-old was not a competent witness under OCGA § 24-9-5. Having ruled against the competency of the three-year-old, the juvenile court further found that any out-of-court statements made by her would not be admissible because she was not “available to testify” within the meaning of OCGA § 24-3-16. The three-year-old having been found to be an incompetent witness and her out-of-court statements having been excluded, the juvenile court granted appellee’s motion to dismiss the delinquency petition. It is from that order of dismissal that the State brings this appeal.

In Ward v. State, 186 Ga. App. 503 (368 SE2d 139) (1988) OCGA § 24-3-16 was construed by seven judges of this court as authorizing the admission of a child’s out-of-court statements only if ths child himself has been shown to be competent to testify as a witness. The majority noted that, “[h]ad the child been a competent witness, and thus ‘available to testify in the proceedings,’ [her out-of-court statements] clearly would have been admissible under OCGA § 24-3-16. . . .” (Emphasis supplied.) Ward v. State, supra at 503 (1). The dissent agreed with the majority that the child’s out-of-court statements were not “admissible under the provisions of OCGA § 24-3-16. This is true because the trial court found that the victim was incompetent as a witness and unavailable.” (Emphasis supplied.) Ward v. State, supra at 506. The only disagreement between the majority and the dissent was over the admissibility of the child’s out-of-court statements under the res gestae hearsay exception.

This interpretation is consistent with the Supreme Court’s decision in Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987): “[I]f the prosecution invokes the Child Hearsay Statute to introduce out-of-court declarations by the alleged victim, the court shall do as follows: Before the [S]tate rests, the court shall, at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked.” (Emphasis supplied.) It would be anomalous to hold that, notwithstanding a child’s inability to satisfy the applicable competency requirements of OCGA § 24-9-5, he is nevertheless entitled to take the stand and can be subject to direct and cross-examination.

Likewise, the interpretation of OCGA § 24-3-16 as requiring that the child himself be competent to testify is consistent with the interpretation given to comparable statutes in other jurisdictions. “[Ojther jurisdictions uniformly conclude an incompetent witness is unavailable. [Cits.]. . . . While the concepts of availability and competency do not overlap entirely, it is quite clear that an incompetent child is not available. The term ‘available’ denotes a witness who can be confronted and cross-examined. [Cit.] A child unable to take the stand obviously cannot respond to opposing counsel’s questions.” State v. Doe, 719 P2d 554, 557 (5) (Wash. 1986). “[W]e hold that ‘unavailability of a witness’ includes the situation in which a declarant is incompetent to testify because of age. . . .” State v. Bounds, 694 P2d 566, 568, fn. 1 (Or. App. 1985).

Accordingly, for the benefit of the bench and the bar we reaffirm the interpretation of OCGA § 24-3-16 which was adopted in Ward v. State, supra, and hold that the phrase “available to testify” as employed in that statute means “competent to testify under OCGA § 24-9-5.” Consequently, after the effective date of, Ga. L. 1989, p--(Act Number_), the 1989 amendment to OCGA § 24-9-5, out-of-court statements of a child such as those involved in the present case will be admissible. That amendment provides, in relevant part, that “in all cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to a crime, any such child shall be competent to testify. . . .” However, the present case predates the effective date of the amendment to OCGA § 24-9-5 and, accordingly, the juvenile court correctly found that, absent a satisfaction of the then-applicable competency requirement, the out-of-court statements of the three-year-old were not admissible. There being no admissible evidence to show appellee’s commission of the alleged delinquent act, the delinquency petition was properly dismissed.

Decided July 3, 1989.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Hodges, Erwin & Hedrick, Gail Singleton, for appellant.

Robert H. Revell, Jr., for appellee.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. McMurray, P. J., concurs in judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

This case involves a petition for an adjudication of delinquency of a 14-year-old boy for child molestation in allegedly exposing himself to his two-year-old sister and a three-year-old girl and making the sister touch his penis. Before the trial commenced, defendant sought to exclude from trial the statements of the three-year-old to her mother and in the presence of a friend of her mother and the child’s videotaped statement to a juvenile detective. As indicated in the majority opinion, the court determined the child was not competent to testify as a sworn witness, ruled that OCGA § 24-3-16 was therefore inapplicable, and dismissed the petition.

I respectfully dissent for the reasons set out in the special concurrence in Westbrook v. State, 186 Ga. App. 493, 498 (368 SE2d 131) (1988).


author: Carley, Chief Judge.

text:
    A89A0655.
    BAKER v. J. C. PENNEY CASUALTY INSURANCE COMPANY.
    (384 SE2d 233)
   Carley, Chief Judge.

On March 13, 1986, appellant-plaintiff was injured in a vehicular mishap and, in its capacity as appellant’s no-fault carrier, appellee-defendant was immediately contacted with regard to coverage. However, appellant was informed that she had no coverage because her automobile policy had been cancelled for non-payment of premiums. Appellant secured the reinstatement of her policy and, on March 14, 1986, she was injured in yet another vehicular mishap. On March 31, 1986, appellant apparently submitted claims for no-fault benefits under her reinstated policy and, thereafter, she submitted additional claims to appellee. However, it was not until June of 1986 that appel-lee made any payment of no-fault benefits to appellant.

After being paid the no-fault benefits, appellant filed suit against appellee, seeking to recover a 25 percent penalty, attorney’s fees, and punitive damages under OCGA § 33-34-6 for the untimely payment of no-fault benefits. Appellee answered and subsequently moved for summary judgment. The trial court, after conducting a hearing, granted appellee’s motion and appellant appeals from the order of the trial court granting summary judgment in favor of appellee.

1. Because it eventually paid all of the no-fault benefits for which appellant submitted claims, appellee urges that it has no liability under OCGA § 33-34-6.

Contrary to appellee’s contentions, the mere payment to an insured of such no-fault benefits as are otherwise overdue will not bar an OCGA § 33-34-6 claim against the insurer. “The apparent purpose of the legislature in enacting the 30/60-day requirements of OCGA § 33-34-6 was to assure prompt payment of claims ]by imposing penalties and damages on insurers failing to meet the deadlines. If an insurer could avoid these penalties and damages by making payment after the deadline, there would be no incentive in the statute to meet the deadline. The issue of the insurer’s good faith is to be determined by the events and circumstances during the 30/60-day time period. Payment thereafter . . . should not prevent a suit by the claimant for the penalties and damages. To interpret the statute otherwise would make it possible for unscrupulous insurers to ignore the due date of the statute with impunity so long as payment ... is made sometime before suit for benefits is brought. As we understand the statute, the words, ‘failure or refusal to pay’ refer to payment ‘when due,’ and do not authorize a late payment. It is not simply the total failure to pay, but the failure to make timely payment which gives rise to penalties and damages.” (Emphasis in original.) Lawson v. State Farm &c. Ins. Co., 256 Ga. 285, 286-287 (347 SE2d 565) (1986). Accordingly, a consideration of appellee’s liability under OCGA § 33-34-6 is not precluded by appellee’s eventual payment of no-fault benefits to appellant and by her acceptance of those benefits.

2. Appellee urges that summary judgment was properly granted in its favor because any delay in its payment of the no-fault benefits was attributable to appellant’s failure to submit reasonable proof in support of her claim rather than to its lack of good faith. See generally Allstate Ins. Co. v. Torok, 168 Ga. App. 517 (309 SE2d 676) (1983). However there was no burden on appellant to submit conclusive proof that the claims she was submitting were attributable to injuries that she sustained in the compensable March 14 mishap rather than the noncompensable March 13 mishap. OCGA § 33-34-6 (b) “does not require a claimant to submit proof of loss of such exactitude as would verify the claim in and of itself. The proof of loss submitted need only be such as would enable the insurer to verify the basic components of the claim through the exercise of reasonable diligence. [Cit.]” Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 607 (2) (359 SE2d 399) (1987). Construing the evidence of record most strongly in appellant’s favor, she submitted such reasonable proof of loss as would shift the burden to appellee to verify or disprove her claims within the 30/60-day time period established by OCGA § 33-34-6. See generally Hufstetler v. Intl. Indem. Co., supra.

That appellant had been injured on consecutive days certainly justified appellee’s thorough investigation into whether appellant’s submitted claims were or were not covered. However, nothing in the evidence of record would demand a finding that, based upon the information that was actually submitted by appellant in support of her claims, appellee could not, in the exercise of reasonable diligence, have conducted that investigation within the 30/60-day period and verified or disproved whether or not the basic components of those claims were attributable to the March 14 or March 13 mishap. Indeed, appellee’s evidence does not even purport to address the issue of its diligence after the receipt of appellant’s claims. There is no evidence that appellee contacted appellant or her physicians, that it requested that she submit to an examination by a physician of its own choosing, or that it took any other action toward verifying or disprov ing her claims after they were submitted to it for payment. Since £ genuine issue of material fact remains as to appellee’s diligence in its investigation of appellant’s claims, it follows that the trial court errec in granting appellee’s motion for summary judgment.

This result is not changed by the fact that appellant may hav< submitted claims for some medical bills which, on their faces, pur ported to be for treatment for injuries that she sustained on March 1! rather than on March 14. The only such bills in the record before u; are statements which were submitted by appellant less than 30 day before they were paid by appellee. Accordingly, these bills are not « part of appellant’s OCGA § 33-34-6 claim against appellee and hav no relevance whatsoever to this case. Moreover, even assuming tha appellant did submit some medical bills for treatment attributable t the March 13 mishap, this would not necessarily justify the delay i: appellee’s payment of all of her claims. OCGA § 33-34-6 (b) provides, in relevant part, that “[if] reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after such proof is received by the insurer.” Thus, appellee may have been justified in denying or delaying payment for any bills which purported to be for treatment attributable to the March 13 mishap, but it was not necessarily justified in denying or delaying payment for any other bills which purported to be for treatment attributable to the March 14 mishap. See generally Strickland v. American Home Assur. Co., 186 Ga. App. 425 (367 SE2d 241) (1988).

Decided July 3, 1989.

Edward M. Fitts & Associates, Edward M. Fitts, Audrey D. Brown, for appellant.

Johnson, Beckham & Price, Brenda S. Weathington, Robert F. Dangle, for appellee.

Judgment reversed.

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


text:
    A89A0721.
    JOHNSTONE v. MALONE OFFICE EQUIPMENT COMPANY, INC.
    (384 SE2d 208)
   Beasley, Judge.

Following the denial of his motion for new trial, plaintiff John-stone appeals the judgment entered on the jury’s verdict in favor of defendant Malone Office Equipment Company, Inc. The suit is for personal injuries Johnstone claimed he suffered as a result of a rear-end collision between a vehicle in which he was a front-seat passenger and one driven by Malone’s employee.

1. Johnstone contends the court erred in failing to grant a directed verdict on liability. He also contends the verdict was contrary to evidence and law, as defendant’s employee clearly violated OCGA § 40-6-49.

“ ‘[Reasonable minds’ rarely agree on the issue of liability in rear-end collision cases. Of course, where there is no dispute as to the facts, and they amount to a confession of liability as a matter of law, a directed verdict is warranted. . . . [S]uch cases are rare, and without an admission of liability or an indisputable fact situation that clearly establishes liability, it is error for the trial judge to direct a verdict on the issue of liability in favor of either party.

“In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause.” Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976).

“On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]” Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 254 (1) (342 SE2d 694) (1986). See also Davis v. Carter, 100 Ga. App. 831, 832 (2) (112 SE2d 319) (1959) on the general grounds.

The evidence supporting the verdict showed that Johnstone was going to a sale with his boss, Price, who was driving a company van. They drove through the traffic light at an intersection. A couple of cars in front of them suddenly stopped to make a right turn and Price stopped rather suddenly behind these cars. In a matter of seconds, the van was hit in the rear by a truck owned by Malone.

The evidence did not demand the finding that Malone’s employee was following too closely in violation of OCGA § 40-6-49. The jury was authorized to find from the evidence that the proximate cause of the collision was the abnormal suddenness of the stop of the van. This would support a verdict for defendant, precluding both a directed verdict and a right to a new trial on the issue of liability.

2. Appellant contends the following charge was error because of lack of evidence warranting it: “In the event that you find from the evidence that a wrong has been committed on plaintiff for which he is entitled to recover from the defendant, I charge you that the plaintiff, himself, would be under an obligation to lighten or lessen or minimize the damages which he may have sustained as much as he could have done by the exercise and use of ordinary care and diligence. To the extent that his damages are not increased or not lightened or miti gated by his own failure to observe such care and diligence, I charge! you that such damages would be the result of plaintiff’s own failure tel lighten or mitigate same and he would, therefore, not be entitled t<| recover against the defendant for such damages that he could havJ lightened or mitigated.” 1

There was evidence that plaintiff had a history of alcohol abusj before the collision and chose to drink alcohol rather than take prei scribed pain medication following the collision despite medical advice! and that the alcohol abuse rendered him unable to work. The jur! was authorized to find that loss of income resulted from plaintiff! abuse of alcohol and not from the collision. The charge on mitigatioi of damages was authorized. See Butler v. Anderson, 163 Ga. App. 543 (3) (295 SE2d 216) (1982). Also, it was a correct statement of the lav! OCGA § 51-12-11. i

3. The next enumeration is another charge: “A vehicle which is i! front of another has no absolute legal position superior to that of orll following that. Each driver must exercise ordinary care in the situation in which he finds himself. In each case, what due care is required and whether it was exercised is for a jury such as you to decide. There is no presumption or rules that the following car was at fault just because it struck another car in the rear.” Johnstone claims this was error because the circumstances raised more than just a rear-end collision.

While it is true that other legal principles were appropriate, the rear-end impact was undisputed. The challenged instruction was a correct statement of the law and adjusted to the facts of the case. See Atlanta Coca-Cola Bottling Co. v. Jones, supra; see also Verde v. Granary Enterprises, 178 Ga. App. 773 (1), 774 (3) (345 SE2d 56) (1986).

4. A third jury charge is enumerated as error: “a loss of earnings can be recovered only if such loss is free from uncertainty and speculation. In order for the loss of pay claimed by the plaintiff to be recoverable, it is necessary for him to prove that such work was available to him, that he would have performed such work and further that such loss of earnings would not have occurred but for the injury. In other words, it is necessary for the plaintiff to prove first that he suffered a loss and it was an ascertainable amount. And second, that the loss would not have occurred had the plaintiff not been injured. If the plaintiff fails to offer such proof, then he is not entitled to recover for his loss of earnings.”

A similar charge was found to be “arguably ambiguous” but not reversible error in Beal v. Braunecker, 185 Ga. App. 429, 433 (5) (364 SE2d 308) (1987). The problem is with the language describing plaintiff’s burden of showing what the charge referred to as a “definite amount” of lost earnings, which the court construed was translatable as an “ascertainable amount.” Here the words “ascertainable amount” were substituted. Plaintiff argues that this is still too high a burden requiring too much precision, when all that is required is a “reasonable degree of certainty,” as opposed to guess or speculation.

The law is that lost earnings may be recovered if the proof is reasonably certain and not mere speculation or guesswork. Douglas v. Rinker, 134 Ga. App. 949, 950 (216 SE2d 629) (1975), and cases cited therein. The words “free from” are also troubling because one may perceive a distinction of degree between being “free from uncertainty” and being “reasonably certain.” Nevertheless, the language used here, while not a model charge, did not impose an undue burden on the commission salesman regarding lost earnings when considered in the context of the whole charge on damages.

Judgment affirmed.

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

Decided June 22, 1989

Rehearing denied July 5, 1989

L. B. Kent, for appellant.

Allen C. Levi, for appellee.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A0083.
    ROLLER-ICE, INC. et al. v. SKATING CLUBS OF GEORGIA, INC.
    (384 SE2d 235)
   McMurray, Presiding Judge.

Roller-Ice, Inc. (“Roller-Ice”) brought an action against Skating Clubs of Georgia, Inc. (“Skating Clubs”) to recover damages allegedly resulting from misrepresentations by Skating Clubs’ agent which were made to induce Roller-Ice to purchase a roller-skating business. Skating Clubs denied the material allegations of the complaint and filed a motion for summary judgment.

During the summer of 1984, Gilbert Vuillemin, a corporate officer of Roller-Ice, began negotiating with Albert Couey, the president of Skating Clubs, to purchase a roller-skating business (“Sparkles”) that was owned by Skating Clubs. Couey furnished Vuillemin with a “Profit and Loss Statement” which purportedly reflected the monthly income and expenses of Sparkles from February 1982 through the first half of September, 1984. Relying on this report, Roller-Ice executed a lease agreement for the land, equipment and building which comprised Sparkles and a contract for the option to later purchase the business. The option contract provided, in pertinent part, as follows: “It is understood and agreed by the Buyer that the Seller has made no warranties or representations as to the value of the business known and operated as ‘Sparkles,’ or the value of the property, the buildings thereon, other improvements, or the inventory of equipment and fixtures, and the Buyer acknowledges that it has made its own! independent investigation into the economics of the transaction and! the [value] of the business, and the Buyer specifically disclaims anji reliance upon any statements made by Seller, financial statements! profit and loss statements, or other statements which may have beer! furnished to Buyer by Seller as such was primarily for overall fora! and content rather than the accuracy of any particular figure® thereon, said statements having been originally prepared by Seller foil internal management and control purposes only.” H

“[A]round the 20th of September, 1984,” Roller-Ice began operl ating “Sparkles” and “in the second part of December or in the firs® part of January [1985,]” daily income report sheets were found ill “the office space at ‘Sparkles’ ” which reflected income for the busii ness “from May through September of 1982” that was substantially less than the income reported to Vuillemin by Couey in the “Profit and Loss Statement.” Vuillemin contacted Couey in an attempt to either renegotiate the lease and option contracts or to obtain a refund of monies paid by Roller-Ice to Skating Clubs for the contracts. Couey refused to compromise the contracts and Roller-Ice refused to make further payments to Skating Clubs under the terms of the agreements. As a result, Skating Clubs took possession of Sparkles. From this and other undisputed evidence, the trial court entered summary judgment in favor of Skating Clubs. Roller-Ice appeals. Held:

“Our Code provides that ‘(f)raud renders contracts voidable at the election of the injured party.’ OCGA § 13-5-5. And, ‘(p)arol evidence shall be admissible to show that a writing either was originally void or subsequently became so.’ OCGA § 24-6-8. Further, ‘(f)raud, accompanied by damage to the party defrauded, always gives a right of action to the injured party.’ OCGA § 51-6-1. ‘Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. ... In all cases of deceit, knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood. . . .’ OCGA § 51-6-2.” del Mazo v. Sanchez, 186 Ga. App. 120, 124 (366 SE2d 333).
The evidence in the case sub judice, showing that Couey overstated the income of Skating Clubs’ business and that Roller-Ice relied on this information in negotiating the purchase of Sparkles, was sufficient to raise a genuine issue of material fact as to fraud. Nonetheless, Skating Clubs argues that the disclaimer clause in the option contract forecloses Roller-Ice from pressing its claim for fraud and deceit based on the income figures reflected in the “Profit and Loss Statement.”
“ ‘Where the purchaser of personal property has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, he ordinarily has an election whether to rescind the contract, return the article, and sue in tort for fraud and deceit, or whether to affirm the contract, retain the article, and seek damages resulting from the fraudulent misrepresentation.’ Nichols v. Williams Pontiac, Inc., 95 Ga. App. 752 (98 SE2d 659).” City Dodge v. Gardner, 130 Ga. App. 502, 503 (1) (203 SE2d 729). “ ‘However, depending upon which of the two actions is ultimately pursued, the presence of a merger [or disclaimer] clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger [or disclaimer] clause will prevent his recovery. (Cit.) If, on the other hand, he does rescind the contract, the merger [or disclaimer] clause will not prevent his recovery under a tort theory. . . .’ [Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886-887 (354 SE2d 210)].” del Mazo v. Sanchez, 186 Ga. App. 120, 127, supra. It is from this perspective that Roller-Ice argues that a genuine issue of material fact remains as to whether it rescinded the lease and option contracts.
“A contract may be rescinded at the instance of the party de- ! frauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.” OCGA § 13-4-60.

In the case sub judice, Vuillemin testified that, after discovering the income records which reflected substantially lower monthly income figures than those provided by Couey, he contacted Skating Clubs and “offered Mr. Couey to renegotiate the contract and offered him if he didn’t want to do anything to just refund [Roller-Ice] because we were cheated.” Vuillemin reinforced this testimony in an affidavit, wherein he deposed that he “brought [the income] discrepancies to the attention of Mr. Couey and asked him to either (1) Refund the $150,000.00 [Roller-Ice initially paid to Skating Clubs for the lease and option contracts] and declare the contracts between Roller-Ice, Inc., and Skating Clubs of Georgia, Inc., null and void, thus returning everyone to the status quo as it existed prior to the execution of the contracts; or (2) renegotiate the contracts to reflect the true financial figures.”

“Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the! contract becomes unimpeachable in equity. If a party to a contract! seeks to avoid it on the ground of fraud or mistake, he must, upon! discovery of the facts, at once announce his purpose and adhere to it.I Otherwise he can not avoid or rescind such contract.” Gibson v. Alford, 161 Ga. 672, 673 (5) (132 SE 442).

In the case sub judice, Roller-Ice’s offer to renegotiate the con* tracts with Skating Clubs amounted to an affirmative recognition ora the contracts, thereby cutting off Roller-Ice’s option to avoid or re-1 scind the lease and option contracts. See Gibson v. Alford, 161 Ga. 672, 686, supra, and Thompson v. Growers Fin. Corp., 49 Ga. App. 119 (1) (174 SE 192). Consequently, having made its election, Rollerl Ice is bound by the merger or disclaimer clause in the option contrae* and cannot allege reliance on the “Profit and Loss Statement” pro* vided by Skating Clubs prior to the execution of the contract. See Condios, Inc. v. Driver, 145 Ga. App. 537 (1) (244 SE2d 85). Compare Alpha Kappa Psi Bldg. Corp. v. Kennedy, 90 Ga. App. 587 (83 SE2d 580), where the purchaser could have discovered the purported fraud by diligence before the execution of the sales contract. It follows that the trial court did not err in granting summary judgment in favor of Skating Clubs.

Decided July 5, 1989.

W. Roland Campbell, for appellants.

W. Allen Separk, Adele Grubbs, for appellee.

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but not for the reason advanced, which is based on the record having conclusively shown as fact that the allegedly defrauded party affirmed the contract. It is true that if that were the case, plaintiff-buyer would be relegated to a suit for breach of contract, the contract disclaimer would control, and no damages would be recoverable.

However, a question of fact is presented as to whether the buyer by its actions or inactions affirmed the contract. There is evidence that upon discovery of the significant discrepancy, buyer promptly contacted seller and, before electing either option, offered to renegotiate (which could be a rescission of the original contract) or rescind the original contract outright, return the property, and recover the option money. There is also evidence that after the buyer made this initial offer and while awaiting seller’s response, the seller ostensibly wrested the decision from buyer by taking possession of the property.

Thus the evidence did not show as a matter of law that buyer affirmed the contract and retained the property, which would have relegated it to a suit for breach of contract and preclusion from damages because of the disclaimer clause.

The suit sounds in tort, and the trial court found it to be such, concluding that the allegedly defrauding seller was entitled to summary judgment because it showed conclusively by the disclaimer clause that buyer’s reliance on the profit and loss statements provided by seller was not justified. The affirmative absence of the fourth element of fraud, see OCGA § 51-6-2 and City Dodge v. Gardner, 232 Ga. 766, 769, fn. 1 (208 SE2d 794) (1974), is fatal for this reason.


author: Birdsong, Judge.

text:
    A89A0825.
    SMITH v. THE STATE.
    (384 SE2d 677)
   Birdsong, Judge.

Alvin Michael Smith appeals his conviction for two counts of sale of cocaine, obstruction of an officer and criminal trespass.

His defense was “mistaken identity.” He was not arrested at the time of the cocaine sales. He complains, as fatal to his defense, of “the prosecution’s refusal or failure (and the Superior Court’s condo-nation of that act), to identify the passenger who accompanied agent Marc Williams on the cocaine buys. . . .” He also contends the trial court erred in denying his motion to suppress “the tainted identification of the undercover officer ... [of Smith] as the perpetrator of the cocaine sales at issue.” Held:

1. Appellant’s complaint on appeal of the prosecutor’s refusal or failure to identify the passenger, and the trial court’s condonation of that refusal or failure, is without merit. In State v. Mason, 181 Ga. App. 806 (353 SE2d 915) and see Moore v. State, 187 Ga. App. 387 (370 SE2d 511), we firmly established the requirements for the disclosing of the identity of an informer, and summonsing him or her as a defense witness (State v. Mason, supra) as well as the actual conduction of a motion to reveal identity. See Moore, supra, p. 388.

Public policy inhering in the need to protect an informer and to encourage information is so strong that it may, in particular circumstances, outweigh a defendant’s right to summons a witness even if the witness is essential to the defense. State v. Mason, supra, pp. 809-812. In such a case, the informer’s privilege may be so strong that the prosecution will generally drop the prosecution rather than unveil the informer. State v. Mason, supra. Therefore, there are particular requirements placed upon the defendant to justify identifying or summonsing the informer. The defendant must ask the trial court for an in-camera examination of the matter, by first showing not only the materiality but the necessity of the witness’ testimony in the defense. State v. Mason, supra, p. 813. Appellant asked the State for the information, but he did not properly ask the trial court to make the State produce it; he did not show a materiality and necessity for disclosure of the passenger’s identity and testimony. Appellant does not even suggest the witness would exonerate him, or in any other way establish the witness’ materiality and necessity. If appellant did not know the identity of the passenger, or what such witness would say, he made no genuine attempt to find out, and certainly made no proper request as required described in State v. Mason and Moore v. State, supra, and authority relied upon therein.

We find no error.

2. Appellant casts error on the trial court’s denial of his motion to suppress the agent’s in-court identification of the appellant. It is not necessary to recount all the evidence here; but in essence, appellant contends it shows the agent did not know appellant. He learned appellant’s name and identified him as the seller before trial, but only after another officer (being given the seller’s description) showed the agent appellant’s photograph and “suggested” this was the seller.

Decided July 5, 1989.

Glover & Davis, R. Keith Prater, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

However, this evidence, even stated in appellant’s favor, fairly discloses the agent had “a face” but not “a name”; the only way he could find out the identity of the drug purveyor was to describe him, with the time and location, to another officer (who had recently seen appellant at the location). This officer merely supplied the agent with a name to go with the face, and only thus was the appellant arrested.

There often will be no other way to identify a described suspect. The agent had clearly seen the appellant three times, when he was solicited and then during the two “buys,” and had closely observed him for future identification. This was not an impermissibly suggestive procedure such as a photo “line-up” containing one picture, but was more a matter of detection.

Moreover, the in-court identification clearly was of independent origin, and was not “tainted” by the way in which the agent learned the name of the seller. The agent identified appellant based upon three meetings with the seller of cocaine, and not merely upon an impermissible suggestion by another that appellant was the seller. See Mathis v. State, 189 Ga. App. 53 (375 SE2d 77); Tillery v. State, 188 Ga. App. 320 (372 SE2d 851).

Judgment affirmed.

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


text:
    A89A1097.
    SELECT INSURANCE COMPANY v. REGISTER et al.
    (384 SE2d 238)
   McMurray, Presiding Judge.

This declaratory judgment action was brought by Select Insurance Company (“Select Insurance”) to determine if it must provide a defense to Warness Register, an employee of Tracey-Luckey Company, Inc. (“Tracey-Luckey”), its insured. Following discovery, Select Insurance moved for summary judgment, asserting it was not obligated to defend Register or pay any judgment rendered against him because he was not an “insured” pursuant to the terms of the policy issued to Tracey-Luckey. The trial court denied the summary judgment motion and certified its ruling for immediate review. We granted this interlocutory appeal.

Tracey-Luckey purchased a pecan growing and harvesting business from David Bentley in 1983. Following the purchase, Bentley was retained to manage the business until 1984. Then, following a short period in which Register supervised a work crew at Ray City and Barney, Tracey-Luckey installed Alec Merritt as its manager.

On November 1, 1987, Select Insurance issued a commercial insurance policy to Tracey-Luckey. The policy included business auto coverage. Regarding who is an insured, the policy provided, in pertinent part: “The following are ‘insured’: a. You for any covered ‘auto.’ b. Anyone else while using with your permission a covered ‘auto’ you own. ...”

Register began working for the business in 1977. He was on call 24 hours a day, 7 days a week and he was permitted to drive a truck owned by the business between work and home. During Bentley’s tenure, Register could also use a truck for personal purposes. When Merritt managed the business, however, Register was told that, although he could continue to drive a truck between work and home, he was not to drive it for any personal purpose.

According to Register, when he drove a company truck home, he parked it and left it there until he returned to work. Merritt recalled an occasion in 1984 or 1985, however, when he saw Register driving a truck for pleasure on a Sunday afternoon. He averred that the next day he confronted Register and reminded him that he was not to drive a business truck for his personal use. In Merritt’s words, “I told him ‘You are not to do that.’ ”

Merritt had no further problems with Register until November 22, 1987. On that day, a Sunday, Register drove a company truck to repair a neighbor’s pecan shaker. This was a purely personal mission which Register undertook to earn some extra money.

After repairing the shaker, Register drove the truck to a convenience store where he purchased a soft drink. Then, he left the store and started home. On the way, he met some friends who were drinking alcoholic beverages on the side of the road. He joined them and drank beer and gin for several hours. Departing, Register drove the truck into an automobile driven by Ricky Crosby.

Crosby and Crosby’s wife brought a negligence and loss of consortium action against Register and Tracey-Luckey. (The liability of Tracey-Luckey was predicated upon a respondeat superior theory.) Thereupon, Select Insurance brought this declaratory judgment action, naming Register and the Crosbys as defendants. Held:

This case is controlled by Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512 (160 SE2d 844). “In Ditmyer v. American Liberty [Insurance Company, supra], the majority of this court rejected the ‘first instance permission’ rule and instead adopted the rule that ‘while a slight or inconsequential deviation from the permission given will not annul the coverage of the omnibus clause (see Hodges v. Ocean Accident &c. Corp., (66 Ga. App. 431 (18 SE2d 28))), there is an absence of permission within the meaning of the policy if the vehicle is being driven at a time or a place or for a purpose not authorized by the insured.’ ” Griffin v. State Farm &c. Ins. Co., 129 Ga. App. 179, 182 (3) (199 SE2d 101). In the case sub judice, Register was permitted to drive a company truck between work and home, but he was not permitted to drive it for any personal purpose. Nonetheless, Register drove the truck on a Sunday afternoon for just such a personal purpose. In so doing, Register deviated substantially from the scope of permission set forth by Tracey-Luckey. In fact, the use which Register made of the company truck was expressly forbidden by Tracey-Luckey. Accordingly, Select Insurance carried its burden of demonstrating that Register was not an insured under the policy issued to Tracey-Luckey. Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, supra; Hodges v. Ocean Accident &c. Corp., 66 Ga. App. 431, supra.

In rejecting the “first instance permission” rule, the Ditymer v. American Liberty Ins. Co., supra, majority noted that the rule “is generally associated with compulsory liability insurance (see Hodges, and 7 Appleman, 1967 Supp.), which we do not have in Georgia.” Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 519, supra. Should the rule be adopted now? (After all, it is now the public policy of this State, since the enactment of compulsory liability insurance, that “innocent persons who are injured should have an adequate recourse for the recovery of their damages.” Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499). Accord Watson v. Southern Ins. Co. of Dallas, 185 Ga. App. 223 (363 SE2d 629). Given the facts of the case sub judice, we need not decide. “Even in jurisdictions where the first instance permission rule is applied, it is generally held that where the use being made of the vehicle was expressly forbidden, there could be no coverage under the permissive use or omnibus clause.” Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 520, supra. Since Register used a company truck in an expressly forbidden manner, he would not be insured under the policy issued to Tracey-Luckey even if the first instance permission rule was adopted.

We are urged to find a genuine issue of material fact as to whether Register was within the scope of his employment at the time of the collision. But whether Register was acting within the scope of his employment is immaterial because the question of insurance coverage in this declaratory judgment action is unrelated to the question of agency. Phoenix Ins. Co. v. Bentley, 126 Ga. App. 857, 859 (191 SE2d 887). As it is said: “Although he may have been in the owner’s employment, the issue under the permissive use or omnibus clause is not whether he was acting within the scope of his employment, as it would be if the suit were against the employer under the theory of respondeat superior. Nor is it a question of whether the deviation in going [drinking with his friends] was so great or substantial as to break the chain of employment until he should return to a point within its scope.” Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 517, supra. Rather, the question is whether the employee was an insured within the terms of the policy issued by the insurer to the employer. Because Register was not such an insured, Select Insurance is not obligated to defend him or pay any judgment rendered against him.

Decided July 5, 1989.

Reinhardt & Whitley, Glenn Whitley, for appellant.

Blackburn, Bright & Edwards, J. Converse Bright, James G. Tunison, Jr., for appellees.

Warness Register, pro se.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.