author: Carley, Judge. Deen, Presiding Judge,

text:
    76546.
    DEPARTMENT OF PUBLIC SAFETY v. BOATRIGHT.
    (373 SE2d 770)
   Carley, Judge.

Prior to his retirement in December of 1986, appellee-employee was employed as a state patrolman by the appellant-employer Department of Public Safety. On December 1, 1984, the employee, while in pursuit of a suspect, was involved in a crash of his patrol car. He stated at the scene of the crash that he was not injured and he sought no immediate medical aid. The employee reported to his next scheduled shift but, a few days later, increasing pain in his knees forced him to miss time from work and to consult his own personal physician. The employee had a long-standing chronic arthritic condition for which he had been receiving treatment on an “as needed” basis. After the crash, however, he began to have pain in his knees with greater frequency and intensity than he had experienced previously.

Approximately nine months after the crash, the employer transferred the employee from his regular patrol duties and gave him another job assignment. The purpose of this job transfer was to protect the employee from injury to his knees and to insure that his employment would be commensurate with his painful physical condition. Meanwhile, the employee continued to see his own personal physician and other private physicians to whom he was referred. The employee did not apply for workers’ compensation benefits. The work days that he missed were taken as his regular sick leave. His medical bills were paid by his group insurance and by himself.

In the Fall of 1986, the employer determined that the physical condition of the employee was such that he should take disability retirement effective in December of that year. In November of 1986, the employee filed a workers’ compensation claim, asserting that his disability was a compensable “injury.” The employer controverted the claim and a hearing was held before an administrative law judge (ALJ). The ALJ found that the employee had become physically disabled in 1986 as a result of rheumatoid arthritis and that he had not sustained the burden of proving a causal connection between his 1986 disability and the 1984 crash of his patrol car. The ALJ further found that a claim by the employee for workers’ compensation based upon the 1984 automobile crash would be barred by the one-year statute of limitations.

The Full Board adopted the award of the ALJ. The employee appealed to the superior court. The superior court reversed, holding that the Full Board had made an “erroneous conclusion of law that the [employee] has not . . . sustained his burden of proof’ and further holding that the Full Board had erred as a matter of law in finding that the employee’s claim for workers’ compensation benefits based upon his involvement in the 1984 crash was barred by the statute of limitations. The employer applied to this court for a discretionary appeal from the superior court’s reversal of the Full Board’s award. We granted the employer’s application and this appeal results.

1. It is undisputed that, in December of 1984, the employee was involved in an automobile crash which arose out of and in the course of his employment. This alone, however, will not demand a finding that the employee is entitled to receive workers’ compensation benefits. Unless the employee suffered an “injury” as the consequence of his involvement in that crash, he has no workers’ compensation claim whatsoever. See generally OCGA § 34-9-1 (4). Moreover, even if the employee had suffered a compensable “injury” in December of 1984, the one-year statute of limitations would bar his claim for workers’ compensation benefits based thereon, unless his subsequent 1986 disability was shown to be the result of the aggravation of that earlier compensable “injury.” See generally Central State Hosp. v. James, 147 Ga. App. 308 (1a) (248 SE2d 678) (1978). The award of the Full Board found that there was no proximate causal connection between the employee’s December 1984 crash and the subsequent deterioration in his physical condition, which deterioration had ultimately culminated in 1986 in his disability to work. Instead, the Full Board found that the employee had become disabled in 1986 as the result of pre-existing rheumatoid arthritis and that he had not borne the burden of proving that he had sustained any compensable accidental “injury” occurring on the date of his retirement “or at any other time.” Having thus found, in effect, that the employee’s 1986 disability, as the asserted “injury” at issue, resulted from pre-existing rheumatoid arthritis and was neither a compensable “injury” in and of itself nor a “new injury” attributable to the aggravation of an earlier compensable “injury” suffered in the 1984 crash, the Full Board further found that the one-year statute of limitations would bar a workers’ compensation claim based upon the employee’s assertion of any other “injury” as “may have occurred as a result” of the December 1984 crash.

If there is any evidence to support the findings of the Full Board, the superior court erred in reversing the award. The superior court was required to construe the evidence in the light most favorable to the employer as the party who prevailed before the Full Board. See generally OCGA § 34-9-105; Fulmer v. Aetna Cas. &c. Co., 85 Ga. App. 102 (68 SE2d 180) (1951). The Full Board’s findings of fact, when supported by any evidence, are conclusive and binding. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (224 SE2d 65) (1976). The superior court is not authorized to substitute its judgment for that of the Full Board. See Horton v. Ga. Power Co., 164 Ga. App. 252 (296 SE2d 798) (1982). The superior court is authorized to reverse an award of the Full Board only when there is plain error of fact or an error purely of law. See Crawford W. Long Hasp. v. Mitchell, 100 Ga. App. 276 (111 SE2d 120) (1959). Accordingly, the issue to be resolved is whether the superior court correctly held that there was no evidence to support the Full Board’s finding of a lack of causal connection between the 1984 crash of the employee’s patrol car and the subsequent deterioration of the condition of his knees which ultimately resulted in his involuntary retirement in December of 1986.

The only testimony which was offered was that of the employee and his supervisor. However, the medical records of the employee were also in evidence. These medical records clearly show that the employee had suffered from arthritis for several years prior to the crash and that he continued to receive treatment for his arthritic condition thereafter. In his deposition, the employee testified as to his chronic arthritic condition. Although at one point in his deposition, the employee stated that he had experienced no problems with his knees as a result of arthritis prior to the collision, he later admitted that he was not sure that that was the case. Furthermore, the medical records show a medical history that indicates that in 1983, the employee “had a flare up of his symptoms which involved significantly his knees.” Finally, the medical records of Dr. Bagley, who saw the employee in January of 1985, do not show that the employee mentioned a December 1984 automobile crash.

This evidence would authorize the Full Board, as the finder of fact, to find that the deterioration in the employee’s physical condition which resulted in his 1986 disability was attributable to his preexisting arthritis and not to a compensable “injury” suffered in the 1984 automobile crash. If there was no such causal connection, then the employee’s 1986 disability was not a “new accident” and the one-year statute of limitations as to any compensable “injury” that he might otherwise have suffered in the crash had run. “The ALJ and full board ‘as factfinders have exclusive prerogative of weighing evidence, including determinations of credibility of witnesses; the courts on appeal are bound by findings if supported by any evidence. . . . (I)n arriving at the truth, (they) may apply all of the rules of law with reference to the credibility of the witnesses testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and their personal credibility so far as the same legitimately appears from the trial.’ [Cit.]” Handcrafted Furniture v. Black, 182 Ga. App. 115, 117 (354 SE2d 696) (1987).

It follows that the superior court erred in substituting its findings of fact for those of the Full Board so as to mandate an ultimate award in favor of the employee. Although the superior court’s order purported merely to remand the case to the Full Board, it specifically ruled that “there is no evidence to controvert testimony . . . that [the employee] was injured in and out of the course of his employment.” While there is no doubt that the evidence would demand a finding that, in 1984, the employee was involved in an automobile crash arising in and during the course of his employment, the relevant issue is whether the 1986 disability was an aggravation of a compensable “injury” which was suffered in the 1984 crash or was attributable to other non-compensable causes. The evidence would authorize a finding that the employee’s 1986 disability was attributable to causes other than the 1984 crash. Thus, the superior court’s order has the erroneous effect of requiring that the Full Board find in favor of the employee.

2. However, the record does show that the Full Board, in its findings, made the unqualified statement that the employee “did not miss any work after this collision.” It is unclear what this finding represents. If it represents the Full Board’s determination that the employee did not miss any work immediately after the crash, it is an accurate reflection of the evidence. If it represents the Full Board’s conclusion that the employee missed no work whatsoever after the crash, it is an erroneous reflection of the evidence. The evidence shows that, several days after the crash, the employee did miss work and that he thereafter continued to consult the doctors he had previously seen for his arthritis and other physicians to whom he was referred. Nevertheless, this one possible misstatement by the Full Board of the evidence will not necessarily authorize a complete reversal of the award. “ ‘(A) misstatement of significant testimony will be ground for referral back to the board of an award (even if) otherwise supported by evidence where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.’ [Cits.] ‘The most that the superior court or this court can do is, if it finds a significant misstatement of testimony in the finding of facts which in all likelihood erroneously influenced the award, to remand the case for further consideration. [Cit.]’ [Cit.]” Fi delity & Cas. Ins. Co. v. CIGNA/Pacific &c. Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702) (1986). Compare Chevrolet-Pontiac-Canada &c. Corp. v. Millar, 182 Ga. App. 889 (1) (357 SE2d 598) (1987).

If the finding that the employee “did not miss any work after this collision” represents a misstatement of the evidence, it is possible that it may have erroneously influenced the award. Giving consideration to the fact that the employee did miss some work after the 1984 crash, the Full Board, acting as the finder of fact, might find that his 1986 disability was attributable to the 1984 injury and not to his preexisting arthritis. Accordingly, the superior court erred in reversing the award outright and in failing simply to remand the case to the Full Board for further consideration. “[T]he order of the superior court reversing the award is itself reversed, with direction that the case be remanded to the [Full] Board for further proceedings not inconsistent with this opinion.” Fidelity & Cas. Ins. Co. v. CIGNA/Pacific &c. Ins. Co., supra at 162 (2).

Judgment reversed with direction.

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

Deen, Presiding Judge,

dissenting.

I must respectfully dissent from the majority opinion. I would agree, of course, that ordinarily the superior court, when sitting as an appellate tribunal, must construe the evidence in the light most favorable to the party prevailing below, OCGA § 34-9-105, Fulmer v. Aetna Cas. &c. Co., 85 Ga. App. 102 (68 SE2d 180) (1951); and the Board’s findings of fact, when supported by any evidence, are conclusive and binding upon the appellate court. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (224 SE2d 65) (1976). The superior court is not authorized to substitute its judgment for that of the Board, Horton v. Ga. Power Co., 164 Ga. App. 252 (296 SE2d 798) (1982), and is authorized to reverse the Board’s award only when there is plain error of fact or an error purely of law. Crawford W. Long Hosp. v. Mitchell, 100 Ga. App. 276 (111 SE2d 120) (1959).

In the instant case the superior court’s reversal and remand represented errors of both fact and law. Dealing with the factual issue first, we find that the ALJ plainly erred in finding as fact that “claimant did not miss any work after [the] collision [of December 1,1984],” apparently with no regard to claimant’s testimony or to the testimony and official report of his supervisor, who of course had first-hand knowledge not only that the accident had occurred but that Boat-right’s physical condition had begun to deteriorate as of that time; and in further finding that “claimant has not as a fact sustained his burden of proof that he sustained any accidental injury which rose out of and in the course of his employment on December 5, 1986, or at any other time.” A review of the medical evidence of record reveals nothing that would support the ALJ’s findings as against the deposition testimony of either claimant or his supervisor. When competent and clearly admissible evidence is simply not addressed, then there can — and in the instant case, does — exist the likelihood of a “plain error of fact” which arguably is sufficiently prejudicial to warrant reversal of the Board’s award.

Moreover, the superior court correctly found that the ALJ had erred as a matter of law in holding that the statute of limitations had run before Boatright filed his workers’ compensation claim. Case law in this area has consistently held that when an employee receives a work-related injury but returns to work without receiving workers’ compensation benefits, and then suffers such worsening or aggravation of the injury as to render him unable to perform his ordinary work, his inability to work will be denominated a “new injury” or “new accident”; and the date on which the disability to work manifests itself will be considered the date of the “new injury.” Central State Hosp. v. James, 147 Ga. App. 308, 310 (248 SE2d 678) (1978). A “new injury” may consist of either (1) a gradual worsening of the employee’s physical condition, at least partially attributable to his continuing work after the original uncompensated injury; or (2) a specific job-related injury which aggravates a pre-existing uncompensated injury or condition. Slattery Assoc. v. Hufstetler, 161 Ga. App. 389 (288 SE2d 654) (1982); see also Dairymen, Inc. v. Wood, 162 Ga. App. 430 (291 SE2d 763) (1982). No proof of a specific “new injury” is required; a worsening of a previous uncompensated injury sufficient to produce disability is all that is necessary. Central State Hosp. v. James, supra; House v. Echota Cotton Mills, 129 Ga. App. 350 (199 SE2d 585) (1973). See also Zurich Ins. Co. v. Cheshire, 178 Ga. App. 539 (343 SE2d 753) (1986); Hartford Accident &c. Ins. Co. v. Mauldin, 147 Ga. App. 230 (248 SE2d 528) (1978); Liberty Mut. Ins. Co. v. White, 139 Ga. App. 85 (227 SE2d 886) (1976); National Union Fire Ins. Co. v. Johnston, 122 Ga. App. 332 (177 SE2d 125) (1970); Mallory v. American Cas. Co., 114 Ga. App. 641 (152 SE2d 592) (1966). Fireman’s Fund Ins. Co. v. New, 110 Ga. App. 596 (139 SE2d 343) (1964).

In the instant case it is uncontroverted that claimant had not filed for workers’ compensation benefits. The evidence of record makes it clear that claimant’s 1984 injury arose out of and in connection with his job; that his employer received timely actual notice; that his physical condition underwent obvious changes for the worse between the accident and his disability retirement; that he missed a great deal of time from work and incurred a great many bills because of his worsening condition; and that his workers’ compensation claim was filed in November 1986. Since by definition the date of his injury was the date of his disability retirement in December of 1986, the November 1986 filing of the claim was timely.

Decided September 7, 1988

Rehearing denied September 30, 1988

Charles W. Barrow, A. Martin Kent, Michael J. Bowers, Attorney General, for appellant.

Rudolph J. Chambless, Vernon L. Chambless, for appellee.

I respectfully dissent. I am authorized to state that Presiding Judge Banke joins in this dissent.


source: Caselaw Access Project

license: Public Domain

text:
    76663.
    SCOTT v. CITIZENS BANK OF AMERICUS.
    (373 SE2d 633)
   Carley, Judge.

In March of 1986, appellant-defendant executed a note in favor of the Bank of Webster (Bank). In April of 1986, the Bank was purchased by appellee-plaintiff. Thereafter, appellant failed to make timely repayment of his March 1986 note. Appellee then filed this action, seeking to recover against appellant on the note. Appellant answered and raised the affirmative defense of failure of consideration. Appellant also filed a counterclaim, seeking damages for abusive litigation, and attorney’s fees and expenses pursuant to OCGA § 9-15-14.

Discovery established the following facts: In 1984, state banking examiners determined that the Bank had entered into a number of “criticized loans” and that the continued operation of the Bank should be pursuant to a “memorandum of understanding.” Upon subsequently learning that the state bank examiners had not yet discovered the existence of another real estate loan which was in default, the Bank’s president and the Bank’s loan officer concluded that they would not disclose it. Instead, they devised a plan to remove this defaulted loan from the Bank’s books before it was discovered by the state bank examiners. The plan contemplated that appellant, who was a close personal friend of the Bank’s president, would execute a promissory note in favor of the Bank, but would not receive any of the funds represented thereby. Instead, the funds would be provided to another who would then use them to purchase the property which secured the defaulted loan. The president and the loan officer of the Bank acknowledged that their plan was to create a “paper trail” and to use appellant “as sort of a strawman, third party, just as somebody to sign the notes and create the documents to satisfy banking requirements.” Although the bank officers both thought that appellant understood what their plan entailed, appellant himself denied that he ever had knowledge of the specifics of the plan. It is undisputed, however, that appellant did execute the note in favor of the Bank and that the plan was initiated. Although appellant had been told that the Bank’s president would repay the note within several weeks, no repayment was made. The March 1986 note which appellant had executed in favor of the Bank was a renewal note.

After discovery had established these facts, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee and denied appellant’s motion. Appellant appeals from the trial court’s order on the cross-motions for summary judgment.

1. It is undisputed that appellant never received any of the proceeds represented by the note and that, in signing the note, appellant was intending only to perform a favor for the Bank’s president. Appellant urges that this establishes the viability of his defense of failure of consideration, and that the trial court therefore erred in denying his motion for summary judgment and in granting summary judgment in favor of appellee.

That appellant himself did not receive any of the proceeds of the note which he admittedly executed as a favor to another is not dispositive as to his non-liability. Instead, this evidence establishes that appellant occupies the status of an accommodation party. “An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” OCGA § 11-3-415 (1). Under appellant’s own version of the circumstances which surrounded his execution of the note, he signed it so as to accommodate the Bank’s president in connection with the sale of certain realty and in the consequent satisfaction of the underlying loan which was secured by that realty. Compare Sellers v. C & S Nat. Bank, 177 Ga. App. 85 (338 SE2d 480) (1985), wherein the evidence of the circumstances surrounding the execution of the note showed that there was no accommodation of a third party’s future transaction, but merely a gratuitous assumption of a third party’s pre-existing indebtedness.

Notwithstanding the interpretation which may obtain in other jurisdictions, the concept of an “accommodation party” as it is recognized in Georgia is a broad one and there is no requirement that the accommodated party himself be an actual party to the note. See Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 857 (a) (229 SE2d 765) (1976); Wall v. Fed. Land Bank of Columbia, 156 Ga. App. 368, 372 (3) (274 SE2d 753) (1980). Accordingly, the fact that the note may have been signed by appellant in the capacity of the maker thereof and that the Bank’s president himself did not sign the note in any capacity whatsoever will not preclude a finding that, under the existing circumstances, appellant, in signing the note, was in actuality signing it as an accommodation party for the Bank’s president. Since the undisputed evidence as to the circumstances which surrounded appellant’s execution of the note showed that he was an accommodation party, he would have no viable defense of failure of consideration. “The accommodation party cannot legally assert lack of consideration for his accommodation as the value received by the [accommodated party] ... is the consideration for which the accommodation party bargained. [Cits.]” Lewis v. C & S Nat. Bank, supra at 858 (a). See also Motz v. Landmark First Nat. Bank, 154 Ga. App. 858 (1) (270 SE2d 81) (1980). Therefore, appellant’s undisputed status as an accommodation party renders nonviable his failure of consideration defense.

2. The purported illegality of the consideration for appellant’s execution of the note is not a viable defense to his liability thereon. Appellant did not plead illegality as an affirmative defense to his liability on the note. Accordingly, neither he nor this Court would be authorized to raise illegality as an issue on this appeal. See generally First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 816 (3) (285 SE2d 203) (1981). Thus, a reversal of the trial court on the basis of the defense of illegality would not be authorized in this case.

Moreover, the evidence of record shows that a defense of illegality would not be viable, even if it had been properly raised by appellant. The underlying transaction at issue was merely an advancement of funds which appellant agreed to repay as evidenced by his execution of the note. This transaction was no more illegal than any other loan transaction evidenced by a promissory note. It may have been intended that the transaction serve as a means for removing a defaulted real estate loan from the Bank’s books, but this would not render the transaction illegal. Financial institutions are certainly authorized to arrange for the removal of such loans from its books under the most favorable terms that can be negotiated. There may have been an element of unethical behavior underlying this particular transaction, because it was timed so as to remove the defaulted loan from the Bank’s books prior to its discovery by the bank examiners. However, this unethical behavior would not render the note unenforceable against appellant. Any possible improper timing of the transaction was, at most, collateral to the loan itself, the object of which was otherwise entirely legal. The consummation of a new transaction resulting in the payment of a loan which is in default is not illegal simply because the bank examiners had not yet discovered the existence of the old loan. “For a contract to be illegal under [OCGA § 13-8-1] the purpose or object of the contract must be illegal. [Cits.] However, this rule has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality is only collateral or remotely connected to the contract. [Cit.]” Shan nondoah, Inc. v. Smith, 140 Ga. App. 200, 202 (230 SE2d 351) (1976).

The record shows that one whom appellant assumed to be his friend abused that friendship so as to induce appellant into signing the note and thereby facilitated the payment of a loan which was in default and its removal from the Bank’s books. This would undoubtedly warrant a moral censure for appellant’s so-called friend. It would not, however, allow appellant to plead the defense of illegality to his unconditional liability as an accommodation party to repay the borrowed funds in accordance with the terms of the note he executed.

3. The fact that the notes were blank when executed by appellant does not affect his indebtedness evidenced by those instruments. Under OCGA § 11-3-115, a blank note becomes enforceable if completed in accordance with the authority given. The evidence of record establishes that appellant did authorize completion of the note, his only real contention being that he received no consideration for his authorization in that regard. Accordingly, this defense would not be viable. See generally Harbage v. Dollar Farm Prods. Co., 166 Ga. App. 561 (305 SE2d 25) (1983).

4. Appellant also urges that the evidence of record fails to show the amount which was due on the note. However, appellant had admitted his execution of the note. He did not deny the non-payment of any of the indebtedness evidenced thereby, but denied only his liability as to any of the indebtedness which the note evidenced. Since appellant’s defenses to liability had all been pierced, appellee had a prima facie right to judgment for the face amount of the note. See National Bank of Ga. v. Keriaze, 163 Ga. App. 652 (294 SE2d 688) (1982); Freezamatic Corp. v. Brigadier Indus., 125 Ga. App. 767 (189 SE2d 108) (1972).

5. The trial court correctly granted summary judgment in favor of appellee and correctly denied appellant’s motion for summary judgment.

Judgments affirmed.

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

Deen, Presiding Judge,

dissenting.

The evidence of record demanded a finding that Scott actually received no funds in exchange for signing any of the promissory notes, but that fact does not avail Scott with his contention that the renewal note sued on was unenforceable due to lack of consideration. Under OCGA § 11-3-408, a new consideration is not necessary for a renewal note. James Pair, Inc. v. Gentry, 134 Ga. App. 734 (215 SE2d 707) (1975). Concerning the series of promissory notes executed by Scott that created the antecedent debt renewed by the promissory note sued on, consideration may exist if any benefits accrued to Scott or any detriment was suffered by the bank. Zachos v. C & S Nat. Bank, 213 Ga. 619 (2) (100 SE2d 418) (1957). The benefit bargained for by the promissor may actually flow to another party. OCGA § 13-3-42 (d); Bowman v. McDonough Realty Co., 143 Ga. App. 128 (2) (237 SE2d 647) (1977). In the instant case, it was undisputed that Scott’s execution of the promissory notes resulted in some benefit to a third party and that the bank suffered some loss.

However, I find convincing Scott’s additional contention that even if consideration existed, the note was unenforceable because the consideration was illegal. OCGA § 13-3-45 provides that “[i]f the consideration is illegal in whole or in part, the whole promise fails.” “ ‘An illegal consideration consists of any act or forbearance, or a promise to act or forbear, which is contrary to law or public policy.’ ... ‘It is a general rule that agreements against public policy are illegal and void.’ ” Hanley v. Savannah Bank &c. Co., 208 Ga. 585 (68 SE2d 581) (1952). In the instant case, the arrangement devised by Dekle and Castleberry and participated in by Scott was nothing more than a scheme to conceal information or a predicament that should properly have been disclosed to the bank examiners. To enforce Scott’s participation in that scheme would further the perpetration of fraud, and this court should not hesitate to consider that contrary to public policy, regardless of whether Scott specifically pled illegality of consideration as an affirmative defense or not.

Further, I cannot concur with the majority opinion’s conclusion that Scott was an accommodation party under OCGA § 11-3-415 (1). That Code section states that “[a]n accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” The plain, ordinary, and unmistakable meaning of that statute is that the accommodated party must be an actual party to the instrument. If this court intimated otherwise in Lewis v.C & S Nat. Bank, 139 Ga. App. 855 (229 SE2d 765) (1976), and Wall v. Fed. Land Bank of Columbia, 156 Ga. App. 368 (274 SE2d 753) (1980), this court simply misconstrued the statute. However, it is unclear in those cases whether the accommodated parties were not also parties to the promissory notes, and those cases thus should not be so strongly cited as authority for the proposition stated and applied by the majority opinion.

In summary, the promissory note in this case was void and unenforceable because of the illegality of the consideration. The trial court should have denied summary judgment for the appellee and granted it for the appellant. Accordingly, I must respectfully dissent from the majority opinion’s affirmance of the trial court’s opposite disposition.

Decided September 6, 1988

Rehearing denied September 30, 1988

James M. Skipper, Jr., for appellant.

Benjamin F. Easterlin IV, for appellee.


author: Benham, Judge.

text:
    73648.
    SOUTHERN RAILWAY COMPANY v. GEORGIA KRAFT COMPANY.
    (373 SE2d 774)
   Benham, Judge.

Appellant was the plaintiff in this case, suing appellee for damages which were caused by the collision of a pulpwood truck with a train. Appellee’s asserted liability was based on appellant’s contention that the driver of the truck was appellee’s agent and was negligent in causing the collision. The jury returned a verdict which found that the driver was not appellee’s agent, and judgment was entered for appellee.

On the first appearance of this case at 183 Ga. App. 884 (360 SE2d 605) (1987), we affirmed the trial court’s judgment. On certiorari, the Supreme Court reversed our judgment (258 Ga. 232 (367 SE2d 539) (1988)) and remanded the case to this court with direction to take such further action as may be necessary to give effect to its opinion. That action includes making the judgment of the Supreme Court the judgment of this court and, because a new trial is mandated by the Supreme Court’s decision, deciding matters involving the issue of negligence, all of which were mooted by our prior decision.

1. For the reasons stated in the Supreme Court’s opinion, the judgment of the trial court is reversed.

2. Appellant’s first enumeration of error complains of the admission of evidence that the crossing signal at the crossing where the collision occurred had malfunctioned on at least two occasions in the recent past. We find no error there.

Appellant put on evidence that the crossing signals had been maintained regularly and were operational when the collision occurred, and that a failure to operate was not possible. To rebut that evidence, appellee was entitled to put on evidence that malfunctions were possible and had occurred. Williams v. Naidu, 168 Ga. App. 539, 540 (309 SE2d 686) (1983).

3. In appellant’s second enumeration of error, it contends there was no evidence to authorize the trial court’s charge to the effect that appellant had a duty to maintain crossing signals and that there was a question of fact whether it had done so at the crossing involved here. Appellant’s evidence on this question was that the signals could not malfunction; appellee put on evidence that they had. An inference which could be drawn, if the jury chose to believe appellee’s evidence, was that the signals could and did malfunction and that they were, therefore, not properly maintained. We find that evidence sufficient to authorize the charge.

4. The third error enumerated by appellant is the trial court’s refusal to give its requested charge concerning the circumstances under which a railroad engineer would not have a duty to stop upon seeing a vehicle approaching a crossing. The requested charge was a correct statement of the law, having been taken from Georgia Southern &c. R. Co. v. Haygood, 103 Ga. App. 381 (5) (119 SE2d 277) (1961), was adjusted to the evidence, and was needed to balance two of defendant’s requested charges which dealt with the duty of an engineer to stop, without touching on when the duty did not arise. Appellant having objected to the refusal to charge, we hold that the trial court erred in refusing to give the requested charge. See Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308 (8) (271 SE2d 227) (1980).

5. The trial court charged the jury that it was to decide whether appellant was negligent in failing to employ additional precautions at the crossing where the collision occurred. Appellant asserts in its fourth enumeration of error that the charge was incorrect because it is the Georgia Department of Transportation which decides which warnings are to be used at particular crossings. That same argument was rejected in Wright v. Dilbeck, 122 Ga. App. 214 (16) (176 SE2d 715) (1970): “ ‘An act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring.’ [Cit.]”

6. Pursuant to appellee’s request, the trial court gave a charge quoting OCGA § 46-8-190, concerning the duty of railroads to erect and maintain “blowposts” at specified distances from crossings and to sound the train’s whistle when approaching a crossing. In its fifth enumeration of error, appellant contends that the charge was error because there was no issue concerning erection of a blowpost and no allegation that the engineer otherwise failed to comply with the statute. The record shows, however, that one of the allegations appellee advanced was that appellant failed to give warning of the approach of the train to the crossing. Although there was scant evidence concerning whether the whistle was used, several of appellant’s witnesses mentioned it, and one of them testified on cross-examination that the whistle was blown five minutes before the collision. Other evidence concerning the speed of the train, when considered together with the statutory requirement that the whistle be blown at a point 400 yards from the crossing, would permit the conclusion that the whistle was blown too far away from the crossing to be effective as a warning or to comply with the statute. That being so, we find that the charge was authorized by the evidence. The fact that the trial court gave the entire Code section in charge rather than just the part about blowing the whistle does not require reversal. Chapman v. Piggly Wiggly Southern, 178 Ga. App. 835 (344 SE2d 755) (1986). There was no error in giving the charge.

Decided September 7, 1988

Rehearing denied October 3, 1988.

Burt Derieux, Eileen M. Crowley, Keith J. Reisman, L. Hugh Kemp, for appellant.

W. Wray Eckl, Julia Anderson, for appellee.

7. The final issue to be addressed is appellant’s assertion in its thirteenth enumeration of error that the trial court erred in giving a charge on accident. We disagree.

“ ‘Where the jury is authorized under the alternatives submitted by the evidence to find that the collision was not proximately caused by negligence but could have resulted from an unforeseen or unexplained cause, there is ample reason to give a charge on the law of accident.’ [Cits.]” Wilhite v. Tripp, 179 Ga. App. 428 (1) (346 SE2d 586) (1986). In this case, there was evidence that the truck and the train were both traveling within their speed limits; that the crossing signals were properly maintained but may have malfunctioned, though appellant had no notice of previous malfunctions; that there was no stop sign at the crossing; and that because of trees adjacent to the roadway, a driver approaching the crossing from the direction from which the truck driver approached could not see a train approaching from the direction from which the train involved here approached until the driver got within 15 to 50 feet from the crossing. That evidence presented the jury with an alternative under which the collision could have occurred, notwithstanding the exercise of due care by the truck driver and the engineer, and in the absence of negligence by anyone. It was not error, therefore, to charge on accident. Id.

Judgment reversed.

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


author: Beasley, Judge.

text:
    76410, 76411. 76554, 76555.
    LEEKS v. THE STATE. CALDWELL v. THE STATE.
    (373 SE2d 777)
   Beasley, Judge.

Co-defendants Leeks and Caldwell appeal the overruling of their pleas of former jeopardy (Case No. 76410, 76555) and their convictions for armed robbery, (OCGA § 16-8-41), (Case Nos. 76411, 76554).

Both defendants enumerate the same three asserted errors: overruling their pleas in bar; proceeding to trial after notices of appeal were filed from the overruling of the pleas in bar; failing to charge on theft by taking as a lesser included offense, as requested.

1. Because there was no written order overruling or denying the pleas of former jeopardy, the appeals from the oral pronouncement are dismissed. Bishop v. State, 176 Ga. App. 357, 358 (335 SE2d 742) (1985); OCGA § 5-6-34 (a).

2. It is unnecessary to reach the merits of the first two enumerations because of what finally transpired and its connection with the nature of defendants’ foundational complaint. They contend that they were entitled to the jury first selected and that being deprived of it constituted a violation of OCGA §§ 15-12-165 and 15-12-166 and Fourteenth Amendment due process guarantees. The jury which was first selected was the jury which was reselected and tried the cases, except for two members whose inclusion did not deprive defendants of the statutory or due process protections invoked.

Here is what happened. During juror selection, the State made a motion objecting that defendants, who are black, were striking prospective jurors solely because they were white, that such racially based action was “reversed Batson in its purest form,” and that to strike a jury in that manner was against public policy and prejudicial not only to the State but to the potential jurors. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The constitutional reach of the principles upon which Batson is based has been drawn in question. See, e.g., McGuire v. State, 185 Ga. App. 233 (363 SE2d 850) (1987).

The trial court found the Batson objection premature and defendants’ conduct not subject to a Batson objection, but that the actions of the defense in striking the white veniremen might have violated equal protection under the federal constitution. The court withheld a ruling on the State’s motion to allow the State, at the conclusion of jury selection, to attack the defense conduct, not on the basis of Batson but on the ground that the conduct violated federally-prescribed equal protection.

Juror selection was completed but the jury was not sworn. The jury consisted of eleven blacks and one white. The State renewed its motion. The court held a hearing outside the jury’s presence, in which it asked defense counsel to “articulate a neutral explanation” for striking each of the white veniremen.

The court found that defense counsel failed to articulate a neutral explanation. The court then, sua sponte, created a second jury by replacing the selected black jurors with the stricken white veniremen. Defendants objected on state and federal constitutional due process grounds. The court orally denied an immediate appeal and recessed the proceeding.

The following morning, the court rescinded its action and gave counsel another opportunity to select a jury from the same venire. A third jury comprised solely of black jurors was selected by the parties and sworn. Then defense counsel notified the court that they had filed pleas of former jeopardy on the basis that the first jury should have been sworn and therefore that jeopardy had attached, and that members of defendants’ race were temporarily excluded from the second group. The court overruled the motions because the first group had not been sworn (see OCGA § 16-1-8 (a)); and the second group had been disbanded. Defense counsel then asked for permission to appeal from the ruling. The court refused on the ground that the pleas were moot, and the trial proceeded to conviction and judgment. Defendants filed notices of appeal from the double jeopardy rulings the same day, and appeals from the convictions several weeks later.

Ten of the twelve people originally selected were on the trial jury. On second thought, defendants chose to strike a black female who was a former deputy sheriff. The State struck, apparently because she was a former client of Leeks’ attorney, the only white person who had been in the first group. In the stead of these two prospective jurors, two black people were chosen.

Since defendants were unimpeded in their exercise of peremptory challenges in selecting the jury which tried them, OCGA § 15-12-165 was complied with. They were free to strike all whites, they were free of any reverse notion arising from Batson, and they were free to be arbitrary and capricious if they wished. Plummer v. State, 229 Ga. 749 (194 SE2d 419) (1972); Lewis v. United States, 146 U. S. 370, 376 (13 SC 136, 36 LE 1101) (1892). If they were not, they raised no complaint about it, and the selection of an all-black jury demonstrates otherwise.

Nor was OCGA § 15-12-166 violated. But for the two, the very same jurors originally selected were sworn and served. As to the black ex-deputy sheriff, defendants struck her after reconsideration. As to the white former client of defendant Leeks’ attorney, defendant did not insist that she be permitted to serve and did not challenge the State’s striking of her. After the jury was selected and sworn, defense counsel voiced no objection other than that they wished an immediate appeal of the disbanding of the first unsworn group and proceeding thereafter, as constituting double jeopardy.

Decided September 7, 1988

Rehearing denied October 3, 1988

Bentley C. Adams III, for appellant (case nos. 76410, 76411).

Virgil L. Brown, for appellant (case nos. 76554, 76555).

Johnnie L. Caldwell, Jr., District Attorney, Eric D. Hearn, As sistant District Attorney, for appellee.

Finally, constitutional due process in its aspects called into force by defendants here was not violated. Defendants were not deprived of the jury they selected, and they were not precluded from being tried by a jury from which members of their race were systematically excluded and in fact they obtained one made entirely of their race. As a matter of fact, by simply starting the selection process over again, from the very same venire and free of any constraint on the exercise of defendants’ peremptory challenges, much less a racially-based one, yet subject to Batson’s constraints on the State, the trial court provided defendants with the opportunity for the very jury they claim entitlement to. Had the appeal from the overruling of the pleas gone forward, this opportunity would have been lost, for it would no doubt be difficult if not impossible to reassemble the same venire.

3. Defendants maintain that the trial court erred in failing to charge the jury on the lesser included offense of theft by taking. (OCGA § 16-8-2.)

The evidence is construed favorably toward the verdict. It showed that Caldwell and Leeks entered a convenience store, and while the store’s owner was counting money and preparing a deposit slip, Caldwell held a screwdriver to the owner’s throat and grabbed the money. The owner thought she could have been injured. Both Caldwell and Leeks ran out of the store. The police were called. Defendants were apprehended. A screwdriver and the cash taken from the store were recovered in and around the vehicle defendants were in when spotted by the police. The facts constituted armed robbery.

“ ‘ “[I]t is never error for a trial court to refuse to charge on a lesser included offense even though requested in writing when the evidence does not reasonably raise the issue that the defendant may be only guilty of the lesser crime.” [Cit.]’ [Cit.]” Green v. State, 175 Ga. App. 92, 94 (4) (332 SE2d 385) (1985).

Appeals dismissed in Case Nos. 76410 and 76555. Judgments affirmed in Case Nos. 76411 and 76554.

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

Michael R. Hauptman, John A. Beall IV, amici curiae.

       The American Civil Liberties Union of Georgia, Inc., has filed an amicus curiae brief in Leeks’ appeals, with respect to the former jeopardy issue. Rule 13.

       The Fifth Amendment due process provision is also invoked, but it relates to federal proceedings. See Brock v. North Carolina, 344 U. S. 424 (73 SC 349, 97 LE 456) (1953); Nashville, Chattanooga & St. Louis R. v. Alabama, 128 U. S. 96 (9 SC 28, 32 LE 352) (1888). The Georgia Constitution’s double jeopardy provision is also mentioned but not pursued so is not considered as having been effectively raised. Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986).


author: Pope, Judge.

text:
    76421.
    COOPER v. THE STATE.
    (373 SE2d 796)
   Pope, Judge.

Appellant Jimmy Lee Cooper was convicted of five counts of violating the Georgia Controlled Substances Act by selling marijuana to an undercover police agent, and appeals.

1. Appellant contends that the trial court improperly allowed the State to introduce evidence at trial of a similar criminal transaction without prior approval of such evidence as required by Rule 31.3 of the Uniform Rules for Superior Courts. The undercover officer testified that on one occasion while he was making a marijuana purchase from appellant, another man arrived, purchased a “dime bag” and left. A specific exception is recognized by Rule 31.3 (E) when the State introduces evidence of similar transactions which are “immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” Williams v. State, 182 Ga. App. 849 (357 SE2d 301) (1987). Appellant argues that because the sale was to a different person it was not part of a single continuous transaction in which he was involved. However, the other crime occurred during the commission of the offense for which appellant was charged, and thus was an integral part of the res gestae and admissible in evidence. Yarbrough v. State, 186 Ga. App. 845, 847 (368 SE2d 802) (1988); Fudge v. State, 184 Ga. App. 590 (2) (362 SE2d 147) (1987).

“Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. [Cit.] Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. [Cit.]” Fuqua v. State, 183 Ga. App. 414, 419 (1) (359 SE2d 165) (1987). Accord Lawrence v. State, 187 Ga. App. 211 (1) (369 SE2d 531) (1988).

2. Appellant raised an entrapment defense at trial, testifying on direct examination that he acted as a middleman between the undercover agent, who was purchasing marijuana, and an informant who was selling it, only because “[t]hey just kept bugging me. Everytime both of [th]em would come around that’s all they’d talk about, something about pot. So, just to get [th]em off my back, you know, I’d go along with [th]em. I didn’t want to try to run [th]em off. Erwin (the informant) is my next-door neighbor, he’s our friend. He was just the same as one of my boys.” On cross-examination appellant was questioned about attacking the informant with a pool cue and making other threats of violence, to which he objected.

Decided September 9, 1988

Rehearing denied October 3, 1988

Bobby Lee Cook, L. Branch S. Connelly, for appellant.

Jack O. Partain III, District Attorney, Lee R. Taylor, Assistant District Attorney, for appellee.

Appellant asserts that this line of questioning was not only in violation of Sup. Ct. Rule 31.3, as the State did not comply with notice requirements, but also impermissibly placed his character in evidence contrary to OCGA §§ 24-2-2 and 24-9-84, thereby requiring reversal. We disagree. This was a proper area for cross-examination regardless of whether it placed appellant’s character in evidence, since appellant introduced the issue of his friendly relationship with the informant as a basis of his defense. OCGA § 24-9-82; Long v. State, 185 Ga. App. 277 (1) (363 SE2d 807) (1987). See generally State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986). “JT]he extent of cross-examination is within the discretion of the trial court and will not be disturbed on appeal unless it is manifestly abused. [Cits.]” Wright v. State, 179 Ga. App. 325, 326 (2) (346 SE2d 361) (1986). We find no grounds for reversal.

Judgment affirmed.

Birdsong, C. J., and McMurray, P. J., concur. Benham, J., disqualified.


author: Sognier, Judge.

text:
    76552.
    BENNETT v. WOOD.
    (373 SE2d 645)
   Sognier, Judge.

Lucian Lincoln Wood, Jr., filed a motion pursuant to OCGA § 19-9-3 (b) in the Superior Court of DeKalb County seeking modification of visitation rights with his minor son. Wood’s former wife, Holly Wood Bennett, filed a response to Wood’s motion raising various objections to jurisdiction and venue in DeKalb County as well as challenging the propriety of using the motion as a vehicle for modification. The trial court granted Wood’s motion to modify certain aspects of the visitation rights, and we granted Bennett’s application for discretionary appeal.

The record reveals that the parties were divorced in the Superior Court of Cobb County in 1983, and a final order regarding custody, visitation and child support was entered by that court in September 1984 and modified at the request of appellant in regard to certain aspects of visitation in November 1984. One year later, appellant filed an action in Cobb County for contempt of the order regarding child support and seeking a change in visitation. Appellee raised defenses of lack of jurisdiction and improper venue to the modification action based on his residence in DeKalb County, and that action was dismissed. Appellant refiled the petition seeking modification of visitation in DeKalb County, and that action resulted in an order entered May 2, 1986, modifying certain visitation provisions. No appeal from that order was taken.

At the time the 1986 DeKalb County order was entered, appellant was living in Candler County. Subsequent to the entry of that order, appellant married a resident of Bacon County, and in December 1986 moved her residence to that county. On September 16, 1987, some fifteen months after the DeKalb County order had been entered, appellee filed his motion in DeKalb County which resulted in the order appealed here.

1. Appellant contends the trial court erred by entertaining this action because any action to modify visitation must be brought in Bacon County, her county of residence. We agree and reverse.

It is well established that the term “custody” includes visitation rights. OCGA § 19-9-22 (1). OCGA § 19-9-23 (a) provides that “[e]xcept as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.” Thus, the plain meaning of OCGA § 19-9-23 (a) is that an action by the noncustodial parent to modify visitation with a minor child must be brought in the county of residence of the custodial parent. The problem arises because of an apparent conflict between the language in OCGA § 19-9-23, and that found in the identical provisions of OCGA §§ 19-9-1 (b) and 19-9-3 (b). The two latter statutes provide that “[i]n any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party or on the motion of the court, that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the minor.” (Emphasis supplied.)

Appellee argues that the language in OCGA §§ 19-9-1 (b) and 19-9-3 (b) authorizes him to bring a motion in the court issuing the last judgment effecting custody or visitation rights between the parties (i.e., DeKalb County), thereby excusing him from initiating a new suit in the county of residence of the legal custodian (i.e., Bacon County). We agree with appellee that these statutes permit modification of visitation rights to be sought by motion as well as by bringing a new action. However, we cannot agree that both methods are always suitable. Rather, the suitability of either method must be tested against the applicable facts in each particular case. While modification of visitation rights may properly be sought by motion during ongoing litigation initiated in the correct forum, we reject appellee’s argument that OCGA §§ 19-9-1 (b) and 19-9-3 (b) dispense with the necessity of personal jurisdiction over the defendant. The fact that OCGA §§ 19-9-1 (b) and 19-9-3 (b) allow modification of visitation rights absent the change in conditions necessary for a change in custody does not demand otherwise. Not only would such a construction be constitutionally impermissible, see Art. VI, Sec. II, Par. VI, Const, of Ga., 1983, it would frustrate the very purposes set forth by the legislature for enacting the Child Custody Intrastate Jurisdiction Act by encouraging forum shopping. See OCGA § 19-9-21 (a). “It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (48 SE2d 86) (1948). We harmonize the provisions of OCGA § 19-9-1 (b) and OCGA § 19-9-3 (b) with those of OCGA § 19-9-23 by holding that the former come into play only when jurisdiction and venue are also proper. As it is undisputed in this case that the prior action had terminated with the entry of a final order, that appellee’s motion was out of term, and that appellant was not a resident of DeKalb County, the DeKalb County court did not have the required personal jurisdiction over her, and the trial court erred by entertaining the modification action.

Ordinarily, where an action is brought and improper venue is alleged, the Uniform Transfer Rules apply, see 251 Ga. 893-895, and the action is transferred rather than dismissed. In this case, however, modification having been sought by motion when no prior action was pending, our decision that the motion was improper leaves nothing capable of being transferred.

2. Appellant’s remaining enumeration is rendered moot by our decision in Division 1 reversing the judgment below.

Decided September 9, 1988

Rehearing denied October 3, 1988

M. Theodore Solomon II, William J. Edgar, for appellant.

Lucian Wood, Jr., pro se.

Judgment reversed.

Deen, P. J., concurs. Carley, J., concurs in judgment only.


author: Deen, Presiding Judge.

text:
    76556, 76762.
    GIBBS v. GREEN TREE ACCEPTANCE, INC. (two cases).
    (373 SE2d 637)
   Deen, Presiding Judge.

On March 24, 1986, the appellant, Teresa Gibbs, executed a retail installment contract for the purchase of a new mobile home from Ray’s Mobile Home Sales, Inc., which immediately assigned the contract to the appellee, Green Tree Acceptance, Inc. The contract provided for a cash price of $18,096, $308 for property damage insurance, $10 for title and filing fees, and an unidentified charge for $182, all of which were financed; the specified finance charge was $20,175.40. The payment schedule called for 180 payments of $213.73, beginning May 1, 1986. Virtually from the beginning, Gibbs established a pattern of late payments, usually sending a check that was dated with a future date.

On July 1, 1987, the appellee, by certified mail, gave Gibbs notice of default and right to cure, but this notice was returned to the appellee on July 24, 1987, as undelivered. On August 4, 1987, the appellee accepted another late payment of $214 from Gibbs. In early September 1987 Gibbs mailed to the appellee another check for $214, dated September 30, 1987. The appellee received this check on September 10, 1987, prompting it to inform Gibbs by letter that the post-dated check was inadequate and that the account had been turned over to its attorney. On September 14, 1987, the appellee filed a petition for a writ of possession pursuant to OCGA § 44-14-230 et seq.

On November 6, 1987, a hearing on the petition was begun, but, upon being informed that Gibbs never received the appellee’s notice of default and right to cure sent in July 1987, the trial court continued the hearing for 30 days. Following the aborted hearing on November 6, 1987, however, the appellee moved pursuant to OCGA § 44-14-234 to have Gibbs pay into the court registry $1,125.25 past due under the contract. At the show-cause hearing on November 20, 1987, Gibbs asserted several defenses but presented no evidence, resulting in the trial court’s order for Gibbs to pay the sum requested. Appeal No. 76556 is Gibbs’ interlocutory appeal from that order.

The hearing on the merits of the petition for writ of possession resumed on December 18, 1987, and December 23, 1987. On February 12, 1988, the trial court ruled in favor of Green Tree on all of Gibbs’ defenses and granted the writ of possession. Appeal No. 76762 is Gibbs’ appeal from that final order. Held:

1. Appeal No. 76556, the interlocutory appeal from the order requiring Gibbs to pay into the court registry past due amounts under the contract, was rendered moot by the subsequent entry of final judgment in favor of Green Tree on the merits of the petition for writ of possession. See Dein v. Citizens Jewelry Co., 149 Ga. App. 340 (254 SE2d 403) (1979). Accordingly, it is dismissed.

2. During the final hearing, Green Tree’s loan service manager testified that the company usually sold the security agreements it held to a large investment pool, but he had no specific knowledge of the company’s handling of this particular security agreement. In response to that testimony, Gibbs moved to dismiss the action on the basis that Green Tree was not the real party at interest, pursuant to OCGA § 9-11-17. As was the trial court, we are unpersuaded by Gibbs’ argument, which was supported not by real evidence but only by an assumption.

3. Gibbs also contends that the history of her payments on the installment loan, i.e., her late payments always accepted by Green Tree until September 10, 1987, demonstrated a mutual departure from the original terms of the contract, which obligated Green Tree to give her a “reasonable notice ... of intention to rely on the exact terms of the agreement” under OCGA § 13-4-4. However, Gibbs herself testified at the hearing that by sending in checks bearing a future date she had intended to comply with the contractual terms, not deviate from them. This evidence supported the trial court’s finding that Green Tree had no duty to notify Gibbs of its intention to return to the original contract terms, because no mutual departure from the contractual terms occurred.

4. Gibbs contends that judgment for Green Tree was error because Green Tree had never given her 30 days’ notice of default and right to cure, pursuant to OCGA § 7-4-3 (b) (1), which adopts the “contract provisions required by subsection (c) of Section 501 of the Depository Institutions Deregulation and Monetary Control Act of 1980, Public Law 96-221 (12 U. S.C. 1735f-7, notes).” That subsection (c) required, in part, “a 30-day notice prior to instituting any action leading to repossession or foreclosure (except in the case of abandonment or other extreme circumstances . . .”) In this case, upon discovering at the first hearing scheduled that Gibbs was not afforded 30 days’ notice of default and right to cure by the unreceived notice sent by Green Tree in July 1987, the trial court allowed Green Tree to give Gibbs such notice in court and then suspended the final hearing until 30 days had passed. The trial court declined to dismiss the action, on the grounds that the continuance would simultaneously protect Gibbs’ notice rights and prevent the unnecessary delay and expense that would result from requiring Green Tree to commence a new action. We find no harmful error in this fair and economical procedure.

Decided September 6, 1988

Rehearing denied October 3, 1988.

Nadine D. Bailey, Paul E. Kauffmann, Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.

5. Part of the unpaid balance financed was a Veterans Administration funding fee of $182. However, on the actual sales contract, this $182 fee was listed but not identified. Gibbs contends that this unidentified charge violated OCGA § 10-1-33 (b) of the Motor Vehicle Sales Financing Act (MVSFA), and should result in the forfeiture of the entire finance charge, which in turn would have eliminated the default. See Ford Motor Credit Co. v. Spann, 153 Ga. App. 535 (265 SE2d 863) (1980).

The MVSFA generally is applicable to the sale of mobile homes. Holder v. Brock, 129 Ga. App. 732 (200 SE2d 912) (1973). OCGA § 10-1-33 (a) establishes finance charge limitations on such sales, but OCGA § 7-4-3 (a) provides that where the cash sale price of a mobile home exceeds $3,000, the sales contract may impose any finance charge that is agreed upon in writing by the parties, notwithstanding the provisions of OCGA § 10-1-33 (a) through (c). Southern Guaranty Corp. v. Doyle, 256 Ga. 790 (353 SE2d 510) (1987). Had the cash sale price of the mobile home in this case been under $3,000, with finance charge limitation in effect, determination of whether the components of the unpaid balance were sufficiently identified, so as not to render the finance charge in excess of the limitations established by OCGA § 10-1-33 (a), would have been pertinent. It is the violation of a finance charge limitation that requires forfeiture of the entire finance charge under OCGA § 10-1-38 (b). See Ford Motor Credit Co. v. Spann, supra. However, where there are no finance charge limitations, as in the instant case, obviously no violation of a finance charge limitation can occur, and forfeiture of the entire finance charge is inappropriate. The trial court thus properly found that Gibbs was in default and that Green Tree was entitled to a writ of possession.

Appeal dismissed in Case No. 76556.

Judgment affirmed in Case No. 76762. Sognier, J., concurs. Carley, J., concurs in Divisions 1, 2, 4 and 5 and in the judgment.

David M. Wolfson, for appellee.


text:
    76572.
    McNORRILL v. CANDLER GENERAL HOSPITAL, INC.
    (373 SE2d 780)
   Beasley, Judge.

Plaintiff McNorrill appeals the grant of partial summary judgment to defendant hospital in this suit to recover for physical injury McNorrill allegedly sustained while an emergency room patient. He maintains that a nurse dropped him while attempting to remove him from a stretcher to a wheelchair.

Count one of the complaint, as amended, was based on the hospital’s vicarious liability for the alleged negligence of its nurse in not procuring additional ¿ssistance or proper equipment for McNorrill’s move. For a more detailed statement of facts and theories of recovery in the original complaint, see Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) (1987).

Following the emergency room mishap, the nurse completed an insurance carrier confidential incident report on which he selected from a list and checked a box indicating that the predominating incident cause was “lifting or moving.” The hospital’s risk manager partially whited out the mark and instead designated as the predominating cause a fall “on same level.”

McNorrill amended his complaint to add a second count alleging that he was entitled to punitive damages, attorney fees, and expenses because of the change on the incident report claiming it was done in bad faith as an attempt to conceal the true cause of the incident and the hospital employee’s negligence. Summary judgment was granted to the hospital on this count after the court ruled that the report would have no bearing on plaintiff’s cause as it was inadmissible at trial.

McNorrill maintains that there exist material questions of fact as to whether the alteration of the incident report would support a claim for punitive damages under OCGA § 51-12-5 (a). He states that he never intended to set forth a separate cause of action for fraud and deceit but rather that the alteration of the report was a fact which aggravated the underlying original tort claim.

That code section provides that “[i]n a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.” However, “[t]he aggravating circumstance must relate to the tort being sued on, ...” C & S Nat. Bank v. Bougas, 245 Ga. 412, 413-414 (265 SE2d 562) (1980).

Decided September 7, 1988

Rehearing denied October 3, 1988

Noble L. Boykin, Jr., for appellant. Frank W. Seiler, Wiley A. Wasden III, Peter D. Muller, for appellee.

The act being sued on was the alleged negligent dropping of McNorrill. The change in the report of it for insurance purposes by the risk manager after the incident did not relate to the nurse’s commission of the act itself.

Furthermore, appellant’s assertion that alteration of the incident report is of importance to his case is belied by both the nature of the alteration itself and that of the entire document. The eradication of the original check mark in the box on the form and the substitution did not substantively alter the nurse’s stated version of the incident as reflected on the report. Just below the boxes, the nurse had written a description of the incident including predominating and contributing causes, including that the incident had occurred “[w]hile attempting to move patient from stretcher to wheelchair.” Thus, the circumstances of the incident were not obscured by the alteration.

Additionally, the undisputed evidence is that the report was not a part of McNorrill’s medical records, which he would be entitled to see, but rather a document between the hospital and its insurer. The trial court ruled the document inadmissible at trial, so the hospital would not have been able theoretically to benefit at trial from the change on the report. Besides there was undisputed evidence that the supervisor made the change for statistical purposes for the insurance company, and that if anything, classifying the incident as a fall made it worse for the hospital insurance-wise. Even if the claim for additional damages had been hinged on a proper cause, the allegation of aggravating circumstances such as would be necessary for the imposition of punitive damages was pierced. See Ray Jones, Inc. v. Cowan, 139 Ga. App. 811 (229 SE2d 669) (1976).

Judgment affirmed.

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


author: Carley, Judge.

text:
    76811.
    REDWINE v. THE STATE.
    (373 SE2d 804)
   Carley, Judge.

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

Appellant enumerates only the general grounds, urging that the evidence, all of which was circumstantial, was not sufficient to exclude every reasonable hypothesis save that of his guilt.

A review of the record reveals the following: The victim could not positively identify appellant as her masked assailant. Appellant did, however, fit the victim’s general description of the man who had entered her home and assaulted her. Items taken from the victim’s house by the perpetrator were found in appellant’s bedroom. A necklace belonging to the victim was turned over to the police by appellant’s girl friend. Appellant gave conflicting explanations as to how the victim’s property had come into his possession. Both appellant and the victim’s assailant were “0”-type secreters, a characteristic of 14.5 percent of the male population in Georgia. A head hair found on a mask believed to have been abandoned by the victim’s assailant had a “common origin” with head hair of appellant.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “[T]he term ‘hypothesis’ refers to ‘such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does mean that the act might by bare possibility have been done by somebody else. . . . [Cit.]’ [Cit.]” Holland v. State, 176 Ga. App. 343 (1) (335 SE2d 739) (1985). ‘“[I]n order to justify the inference of guilt beyond a reasonable doubt, circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. [Cit.] When a jury hears the evidence, it decides questions as to reasonableness. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law. [Cits.]’ [Cit.]” (Emphasis in original.) Perry v. State, 158 Ga. App. 349, 351 (280 SE2d 390) (1981). “ ‘[T]he weight and credibility to be given the testimony of witnesses is in the exclusive province of the jury,’ [cit.], and it must be remembered that in circumstantial evidence cases, ‘ “ [i]t is not necessary for the [S]tate to prove that it was impossible for the offense to have been committed by anyone else. . . .” ’ [Cit.]” Zant v. Nelson, 250 Ga. 152, 154 (296 SE2d 590) (1982).

Decided September 15, 1988

Rehearing denied October 3, 1988

Edwin V. Gartin, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Randall K. Coggin, Assistant District Attorneys, for appellee.

“The victim’s inability to positively identify appellant . . . does not vitiate his convictions in light of the other evidence linking him to the crimes.” McGee v. State, 173 Ga. App. 604, 605 (1) (327 SE2d 566) (1985). “There is no requirement that a criminal conviction be based upon direct evidence in the form of a positive identification given by a single witness. [Cit.]” Price v. State, 180 Ga. App. 215, 216 (3) (348 SE2d 740) (1986). Under the totality of the circumstantial evidence, including appellant’s possession of the stolen property, his matching physical appearance to the victim’s description of her assailant, and the forensic test results, we find that a rational trior of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983); Daniel v. State, 180 Ga. App. 687 (350 SE2d 49) (1986); Monroe v. State, 176 Ga. App. 333 (1) (335 SE2d 736) (1985); Stewart v. State, 172 Ga. App. 450 (323 SE2d 652) (1984).

Judgments affirmed.

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


text:
    76819.
    THE STATE v. FIELD.
    (373 SE2d 815)
   Carley, Judge.

An accusation was filed charging appellee with possession of less than one ounce of marijuana. Appellee filed a pre-trial motion to suppress, asserting that the marijuana had been seized in an unlawful search of her apartment.

After conducting a hearing on appellee’s motion, the trial court indicated it was making the following factual determinations: At the time that the marijuana was discovered, police officers were lawfully present in appellee’s apartment for the purpose of arresting her on unrelated charges. While present in the apartment for this lawful purpose, one officer observed that a water pipe, or “bong,” was sitting on a mantle and that, next to the water pipe, there was “maybe some kind of wrapping.” As these items were located some distance away from where he was standing, the officer walked over to the mantle. From his new position standing next to the mantle, he observed that the cellophane wrapping held a green, leafy substance. Because the substance appeared to be marijuana, the officer seized it. Having found these facts, the trial court held that the officer, by merely walking over to the mantle for a closer look at items he had previously seen in plain view, had conducted an unauthorized “search” of appellant’s apartment and that suppression of the marijuana was mandated under the holding in Arizona v. Hicks,_U. S. — (107 SC 1149, 94 LE2d 347) (1987). The State appeals from the trial court’s grant of appellee’s motion to suppress.

The evidence that was adduced at the hearing on appellee’s motion would authorize the trial court to make the above-stated factual findings. We are, therefore, bound by those findings of fact. Accordingly, the only issue to be resolved is whether the trial court erred in its legal conclusion that, under the indicated circumstances, the suppression of the marijuana was required under the holding of Arizona v. Hicks, supra.

The facts of Hicks, supra, were as follows: An officer, who was lawfully in the apartment of the accused for the purpose of investigating a shooting, observed expensive stereo equipment. Although he had no probable cause to believe that the equipment had been stolen, the officer moved the equipment in order to record the serial numbers. When the officer subsequently determined that the serial numbers matched those of stereo equipment which had been reported as stolen, the equipment in the accused’s apartment was seized. Under these circumstances, the Supreme Court held that the warrantless seizure was not authorized under the “plain view” doctrine, since the officer had no probable cause to believe that the stereo equipment was stolen prior to conducting the “search” to obtain the serial numbers. The officer’s “moving of the equipment . . . did constitute a ‘search’ separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.” (Emphasis supplied.) Arizona v. Hicks, 94 LE2d, supra at 353-354. However, the Supreme Court also held that “[mjerely inspecting those parts of the turntable that came into view during the [authorized] search [for the shooter, victims and weapons] would not have constituted an independent search, because it would have produced no additional invasion of [the accused’s] privacy interest. [Cit.] But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of [the accused’s] privacy unjustified by the exigent circumstances that validated the entry.” (Emphasis supplied.) Arizona v. Hicks, 94 LE2d, supra at 354.

It is readily apparent that the facts of Hicks, supra, differ significantly from those which the trial court found to exist in the present case. Here, the officer conducted no “search” to determine the presence of the marijuana in appellee’s apartment. While he was standing in a place in which he was legally authorized to be, the officer observed, in plain view, certain suspicious items. The officer did not move any of the items, nor did he take any action which exposed that which had previously been concealed. He merely took a closer look at the items which were otherwise in his plain view. There was no new invasion of appellee’s privacy and, consequently, there was no warrantless “search” of her apartment. See United States v. Walker, 673 FSupp. 292, 296 (n. 2) (N.D. III. 1987); United States v. Small, 664 FSupp. 1357, 1365 (10) (N.D. Cal. 1987). Compare Vincent v. State, 178 Ga. App. 199 (342 SE2d 382) (1986) (holding that the suppression of evidence is required where officers, even after closer visual inspection, are unable to identify the contraband as such without removing it from its container which was in plain view).

Nothing in Hicks supports the legal proposition that an officer, who is otherwise lawfully in the residence of an individual, may not make a closer visual inspection of any items which are then in his “plain view.” “[A] truly cursory inspection — one that involves merely looking at what is already exposed to view, without disturbing it — is not a ‘search’ for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.” Arizona v. Hicks, 94 LE2d, supra at 356. Likewise, nothing in Hicks supports the legal proposition that an officer, who is otherwise lawfully in the residence of an individual and who has made a closer visual inspection of items which are in his “plain view,” may not, as the result of that closer visual inspection, seize the items upon probable cause to believe that they are contraband or evidence of a crime. “Under the ‘plain view’ doctrine [as interpreted in Hicks, supra], a warrantless seizure of private possessions by the police is constitutionally permissible if three requirements are met: (1) the police have made a lawful intrusion or are properly in a position to view a particular area; (2) they discover incriminating evidence inadvertently, without knowing the location of the evidence or intending to seize it in advance; and (3) the police have probable cause to believe that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. [Cits.]” United States v. Small, supra at 1366 (10). Under the facts in the present case, as found by the trial court, all three requirements were met. Accordingly, the trial court erred in granting appellee’s motion to suppress.

Judgment reversed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

The only Georgia case cited supporting the position of the majority opinion, Vincent v. State, 178 Ga. App. 199 (342 SE2d 382) (1986), is not a binding precedent (only two judges concurring fully). Nevertheless, under Arizona v. Hicks, — U. S. — (107 SC 1149, 94 LE2d 347) (1987), the majority opinion is correct; therefore, I concur fully with what is said.

Decided September 22, 1988

Rehearing denied October 3, 1988

Ken Stula, Solicitor, for appellant.

Edward D. Tolley, for appellee.


text:
    76829.
    CLAYPOOL v. THE STATE.
    (373 SE2d 765)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with rape, aggravated sodomy, and kidnapping with bodily injury. Verdicts of guilty were returned on all counts. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. The trial court’s admission of evidence of appellant’s commission of four prior similar criminal acts is enumerated as error.

“Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of-the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. [Cit.] Evidence of independent crimes has been admitted to show bent of mind and course of conduct, and has been most liberally extended in the area of sexual offenses. [Cit.] There was no question that appellant was the perpetrator of the similar offense [s], and the modus operandi of appellant was the same. Thus, such evidence was admissible to show appellant’s bent of mind .... [Cit.]” Davis v. State, 180 Ga. App. 190, 191-192 (2) (348 SE2d 730) (1986). See also Sparks v. State, 172 Ga. App. 891, 892 (3) (324 SE2d 824) (1984).

Appellant’s reliance upon Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985) and Banks v. State, 185 Ga. App. 851 (366 SE2d 228) (1988) is misplaced. In Moore and in Banks, it was held that evidence of asserted prior instances of similar criminal conduct is inadmissible under the doctrine of collateral estoppel if the defendant has been previously tried and acquitted of criminal charges based upon that prior conduct. In the present case, appellant has not been tried and acquitted in connection with any of the four prior incidents.

2. The trial court did not err in allowing the arresting officers to give testimony concerning appellant’s attempt to flee at the time of his arrest. “ ((A)11 circumstances connected with the arrest of the defendant are admissible and may be weighed by the jury for whatever they are worth. [Cit.]’ [Cit.]” Lanham v. State, 184 Ga. App. 554, 556 (2) (362 SE2d 131) (1987). See also Preston v. State, 257 Ga. 42, 45 (7) (354 SE2d 135) (1987).

3. Appellant moved that he be discharged and acquitted for failure of the State to try him in a timely manner pursuant to his demand for trial under OCGA § 17-7-170. The trial court’s denial of this motion is enumerated as error.

On October 14, 1985, appellant did file a proper demand for trial in accordance with OCGA § 17-7-170. Thereafter, however, appellant not only filed a written withdrawal of his demand for trial on January 22, 1986, he also waived his demand for trial by seeking, each time his case was called for trial, a continuance for additional time within which to prepare his defense. See Myron v. State, 248 Ga. 120, 121 (2) (281 SE2d 600) (1981). Accordingly, this enumeration is without merit.

4. The trial court’s refusal “to consider or exercise any discretion as to appellant’s timely filed Motion in Limine” is enumerated as error.

“The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. [Cits.]” State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543) (1982). See also Sapp v. State, 184 Ga. App. 527, 530 (6) (362 SE2d 406) (1987); Holt v. State, 181 Ga. App. 798, 799 (1) (354 SE2d 167) (1987). Moreover, the record shows that the trial court did consider the merits of appellant’s motion in limine in a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3. Accordingly, this enumeration is without merit.

5. Appellant enumerates as error the trial court’s refusal to allow him to conduct a thorough and sifting cross-examination of the victim.

Appellant sought to cross-examine the victim concerning her former membership in or contacts with a motorcycle gang or club. Whether OCGA § 24-2-3, the Rape Shield Law, would render evidence of such contacts or membership on the part of the victim statutorily inadmissible (see Myers v. State, 160 Ga. App. 685 (288 SE2d 27) (1981); Lockhart v. State, 172 Ga. App. 170 (322 SE2d 503) (1984)) need not be decided. The record shows that appellant failed to make any showing of the relevance of such an inquiry, notwithstanding the trial court’s repeated requests that such a showing be made. “ ‘The right to a thorough and sifting cross-examination is not abridged by the action of the judge in confining it to matters that are in some manner relevant to the issues of the case on trial. [Cits.]’ [Cits.]” Allen v. State, 137 Ga. App. 302, 303 (3) (223 SE2d 495) (1976). “[T]he scope of cross-examination is not unlimited. That extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretion is abused. [Cit.]” Hudson v. State, 137 Ga. App. 439, 440 (1) (224 SE2d 48) (1976). See also Deyton v. State, 182 Ga. App. 73, 74 (3) (354 SE2d 625) (1987). The transcript reveals no abuse of the trial court’s discretion in refusing to permit cross-examination of the victim concerning a matter, the relevance of which had not been demonstrated. Accordingly, this enumeration is without merit.

Decided September 6, 1988

Rehearing denied October 3, 1988

Marshall L. Helms, Jr., for appellant.

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

6. Appellant enumerates the general grounds with regard to his conviction for kidnapping with bodily injury. A thorough examination of the record reveals that, from the evidence produced at trial, a rational trior of fact could reasonably have found appellant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 178 Ga. App. 581, 591 (12) (344 SE2d 247) (1986).

Appellant further urges an evidentiary insufficiency to authorize his conviction for both kidnapping with bodily injury and for rape. This contention would have merit if the State had relied solely upon the evidence of appellant’s commission of a single act of rape to satisfy the “bodily harm” element of the kidnapping charge. See Allen v. State, 233 Ga. 200, 202 (3) (210 SE2d 680) (1974). However, such is not the case. Although appellant was only charged with one count of rape, there was evidence that he raped the victim not once but twice. In addition, there was evidence that appellant struck the victim repeatedly during the attack. Accordingly, this case is factually distinguishable from Allen and similar cases. The evidence which authorizes appellant’s rapé conviction is separate and distinct from the evidence which authorizes his conviction of kidnapping with bodily injury.

7. The trial court charged the jury that it would be authorized to convict appellant of both rape and kidnapping with bodily injury. This charge is enumerated as error. Pursuant to our holding in Division 6, there was no error in so charging the jury.

Judgments affirmed.

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


text:
    76693.
    LOCKETT v. THE STATE.
    (373 SE2d 768)
   Carley, Judge.

Appellant was tried before a jury and found guilty of arson in the first degree. He appeals from the judgment of conviction and sentence entered on the guilty verdict.

1. Appellant enumerates the general grounds, urging that the circumstantial evidence produced at trial was insufficient to exclude every other reasonable hypothesis except that of his guilt. See Kreager v. State, 148 Ga. App. 548 (252 SE2d 1) (1978). A review of the transcript shows that, from the evidence produced at trial, a rational trior of fact could reasonably have found appellant guilty of arson in the first degree beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Johnson v. State, 181 Ga. App. 620 (1) (353 SE2d 100) (1987); Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398) (1983).

2. The State was permitted to present evidence of appellant’s commission of a similar offense for which he had not been convicted. This evidentiary ruling is enumerated as error.

“Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. [Cit.] Evidence of independent crimes has been admitted to show bent of mind and course of conduct. . . . [Cit.] There was no question that appellant was the perpetrator of the similar offense, and the modus operandi of appellant was the same. Thus, such evidence was admissible to show appellant’s bend of mind. . . . [Cit.]” Davis v. State, 180 Ga. App. 190, 191-192 (2) (348 SE2d 730) (1986). See also Sparks v. State, 172 Ga. App. 891, 892 (3) (324 SE2d 824) (1984).

Nothing in Riley v. State, 181 Ga. App. 667 (353 SE2d 598) (1987) would support a contrary holding. That case stands only for the proposition that the “[u]se of prior similar crimes is prohibited . . . where the first trial resulted in an acquittal and the State is attempting to relitigate an issue found in the defendant’s favor at the first trial. [Cit.]” (Emphasis supplied.) Riley v. State, supra at 668 (1). At the time of the trial of this case, appellant had not previously been tried and acquitted of the similar offense. At that time, criminal charges in connection with appellant’s commission of the similar offense were merely pending against him. Accordingly, the evidence was admissible at the time it was proffered by the State. See Claypool v. State, 188 Ga. App. 642 (1) (373 SE2d 765) (1988). See also Coalter v. State, 183 Ga. App. 335, 336 (2) (358 SE2d 894) (1987).

3. On direct examination, appellant testified as to the length of time he had spent in “disciplinary” at a correctional facility. Before conducting a cross-examination, the State’s attorney sought a ruling from the trial court as to the permissibility of questioning appellant on the topic of the length of time he had spent in “disciplinary.” The trial court ruled that, although appellant had not opened the character door generally, the State would be permitted to cross-examine appellant as to the testimony he had given on direct examination. This ruling is enumerated as error. “[I]t was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination. [Cit.]” Martin v. State, 143 Ga. App. 848, 849 (240 SE2d 219) (1977). See also Smith v. State, 174 Ga. App. 744, 746 (4) (331 SE2d 91) (1985); Chatman v. State, 162 Ga. App. 582 (2) (291 SE2d 745) (1982).

Decided September 21, 1988.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    76873.
    CREWS et al. v. ALLSTATE INSURANCE COMPANY.
    (373 SE2d 782)
   Carley, Judge.

Although appellant-defendant Ms. Jan Crews and Mr. Larry Crews were divorced in early 1984, they began to live together once again in July of that year. In May of 1985, plaintiff-appellee issued an automobile policy to appellant Ms. Crews. In September of 1985, appellant Mr. Crews purchased a new truck. At the time of the truck’s purchase, appellant Mr. Crews contacted appellee’s agent and requested that the truck be added to appellant Ms. Crews’ automobile insurance policy as an additional insured vehicle. Appellee did add the vehicle to the policy and, thereafter, the premiums were regularly paid by appellant Ms. Crews, the only named insured on the policy. In late June or early July of 1986, appellant Mr. Crews moved out of the apartment which he had been sharing with appellant Ms. Crews. On July 13, 1986, he received extensive physical injuries in the crash of his truck. Appellee was notified of the crash and sent an adjustor to examine the truck. Appellee subsequently sent notification that it was denying coverage under appellant Ms. Crews’ policy for both appellant Mr. Crews’ personal injuries and the property damage to the truck.

Appellee then filed a petition, seeking a declaratory judgment as to the non-existence of coverage under appellant Ms. Crews’ policy. Following a period of discovery, appellee moved for summary judgment. The trial court granted appellee’s motion for summary judgment and appellants appeal from that order.

1. It is undisputed that appellant Ms. Crews, the only named insured, had no “insurable interest” in the truck as defined in OCGA § 33-24-4 (a). Accordingly, the trial court correctly granted summary judgment in favor of appellee as to the non-existence of collision coverage under the policy. “No insurance contract on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having, at the time of the loss, an insurable interest in the things insured. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury, or impairment of such interest in such property.” OCGA § 33-24-4 (b), (c).

2. The determination of the existence of no-fault coverage is not, however, controlled by legal principles and statutes applicable to property insurance. “All policies of motor vehicle liability insurance issued in this state must be in accordance with the requirements of this chapter. Such policies shall contain at least the minimum coverages required under this chapter and shall be issued for a minimum term of six months.” (Emphasis supplied.) OCGA § 33-34-3 (a) (1). Thus, no-fault coverage is controlled by legal principles and statutes applicable to liability coverage. “ ‘(W)e can perceive no reason why [one] though having no insurable interest in the car itself, could not obtain liability insurance . . . [This part of t]he policy here does not insure against loss of the vehicle; it insures against liability. Consequently, the matter of insurable interest [in the vehicle itself] is not controlling of the issues and we must look to provisions of the contract itself.’ (Emphasis in original.) [Cit.]” Auto-Owners Ins. Co. v. Smith, 178 Ga. App. 420, 421 (343 SE2d 129) (1986). See also Watson v. Southern Ins. Co. of Dallas, 185 Ga. App. 223, 224 (2) (363 SE2d 629) (1987).

It is undisputed that appellant Mr. Crews is not a named insured on the policy and that he no longer resided with appellant Ms. Crews at the time of the crash of his truck. Accordingly, he was clearly not otherwise afforded no-fault coverage in the capacity of a resident spouse or resident relative of the named insured. However, under the terms of the policy, no-fault coverage is provided to “any other person who sustains bodily injury, sickness, disease, or death while in, on, getting into or out of . . . the insured motor vehicle.” (Emphasis in the original.) The policy further defines “insured motor vehicle” for purposes of no-fault coverage as “a motor vehicle to which the bodily injury liability insurance of this policy applies and for which a specific premium is charged and for which you maintain the security required under the Georgia Motor Vehicle Reparations Act.” (Emphasis omitted.) The bodily injury liability insurance section of the policy defines “insured auto,” in pertinent part, as follows: “Any auto described on the declarations page. . . .” (Emphasis supplied.) Appellant Mr. Crews’ truck is described on the declarations page of the policy and it is, therefore an “insured motor vehicle” for purposes of no-fault coverage. As appellant Mr. Crews sustained a bodily injury while operating an “insured motor vehicle,” it follows that he is afforded coverage under the no-fault provisions of the policy. Accordingly, the trial court erred in granting summary judgment in favor of appellee as to the non-existence of no-fault coverage under the policy.

Decided September 7, 1988

Rehearing denied October 3, 1988

David J. Turner, Jr., for appellants.

Richard E. Flowers, John Denney, William G. Scranton, Jr., Mark Yeomans, David Siegel, Ernest Kirk II, for appellee.

3. The trial court’s order granting summary judgment in favor of appellee is affirmed as to the non-existence of collision coverage under the policy. The trial court’s order granting summary judgment in favor of appellee is reversed with regard to the non-existence of no-fault coverage under the policy.

Judgment affirmed in part and reversed in part.

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