author: Birdsong, Judge. Benham, Judge,

text:
    A89A0031.
    THE STATE v. O’QUINN.
    (384 SE2d 888)
   Birdsong, Judge.

The State of Georgia appeals from the grant of appellee’s motion to quash the indictment against him. The record does not contain any written motion to quash. The transcript reveals that appellee, Randall L. O’Quinn, during a pre-trial hearing, made an oral motion “to quash the indictment.” We are unsure of the grounds, but they appear to be “an issue . . . involving law enforcement officers of Mr. Moreland’s D.O.T. — Department of Transportation. There’s a question of their authority to make the initial stop in this case. . . .” No evidence was presented. Each counsel stated to the court what he thought the evidence would show. The court advised counsel: “Because I don’t know what the facts are. Just submit a little brief on it, and send the District Attorney a copy of it. And you just respond to his brief, and you can set out what the facts were, and whatever you contend that the facts are, I’ll accept. That don’t mean they’re true, but I’ll accept them for the purpose of this motion.” The trial court granted the motion to quash and the State brings this appeal. Held:

1. The State enumerates as error the grant of appellee’s motion to quash the indictment. At the outset we must notice the potential for chaos an appellate court faces in situations such as the instant appeal because of the current absence of an adequate statutory code of criminal procedure. Appellee made a non-statutory motion to address an issue not procedurally proper, according to case precedent. Because of the absence of a criminal code of procedure, such non-statutory motions do not always receive the same treatment. See generally Bramblett v. State, 239 Ga. 336, 337 (236 SE2d 580).

On appeal, each party argues in his brief what the facts of this case show. Naturally they are not in agreement. Secondly, we have no evidence in the record to which we can refer to determine the actual facts, or which of the parties’ recitations represent the more accurate account. It is a sound rule of appellate practice that “ ‘ “[t]he burden is always on the appellant in asserting error to show it affirmatively by the record.” [Cits.]’ ‘The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.’ ” Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840); accord Finley v. Griswold, 149 Ga. App. 612, 615 (255 SE2d 87). In the instant appeal there is a total lack of evidence to show what occurred at the time of the commission of these offenses. For example, we cannot determine whether a “citizen’s arrest” occurred (OCGA § 17-4-60), whether or not the DOT “enforcement officers” observed a criminal offense (i.e., DUI, OCGA § 40-6-391; or OCGA §§ 40-6-50; 40-6-51; 40-6-52), or a violation of a statute coming under D.O.T. jurisdiction (i.e., OCGA § 32-6-1). This defect, however, does not prevent this court from reaching a decision on the merits of the enumerated error.

2. Appellee presented an oral motion to quash the indictment. “A motion to quash an indictment is merely a demurrer thereto, and an indictment is not demurrable for matters of fact dehors the pleadings and the record.” Walker v. State, 73 Ga. App. 20, 21 (35 SE2d 391); accord Felker v. State, 172 Ga. App. 492 (323 SE2d 817), U. S. cert. den. 471 U. S. 1102. “An indictment may be quashed only for matters appearing on its face.” Mitchell v. State, 225 Ga. 656 (1) (171 SE2d 140); McDonald v. State, 222 Ga. 596, 597 (3) (a) (151 SE2d 121); Burke v. State, 116 Ga. App. 753, 754 (2) (159 SE2d 176). “Since demurrers and motions to quash do not reach matters not appearing upon the face of an indictment, no question is raised here [by information disclosed by counsel] as to the validity of the indictment.” Millhollan v. State, 221 Ga. 165 (1) (143 SE2d 730). The indictment is in the record and is in proper form and substance, and is not subject to a motion to quash. See McKinnon v. State, 124 Ga. App. 821, 822 (2) (186 SE2d 315).

Furthermore, “[exceptions which go merely to the form of an indictment must be made by motion to quash, or demurrer in writing, before pleading to the merits. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested.” (Emphasis supplied.) Gilmore v. State, 118 Ga. 299 (1) (45 SE 226); see also OCGA § 17-7-111. A motion in arrest of judgment lies “for any defect not amendable which appears on the face of the record or pleadings.” OCGA § 17-9-61. “ ‘Where an indictment is not on its face so defective that a motion in arrest of judgment would lie, an objection to it must be in writing (cit.). An oral objection, being ineffective for its purpose, is the equivalent of none at all, and, if no other action be taken, a waiver results.’ ” Curtis v. State, 102 Ga. App. 790, 792 (118 SE2d 264); accord Gilmore, supra; Sheppard v. State, 95 Ga. App. 507, 508 (3) (98 SE2d 169).

Appellee’s oral motion to quash was ineffective for the purpose offered.

Judgment reversed.

Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Carley, C. J., concurs in Division 2 and in judgment. Sognier, J., concurs in judgment only. Benham, J., dissents.

Benham, Judge,

dissenting.

1. In my view, the State has failed to present sufficient grounds to warrant reversal of the trial court’s order quashing the indictment. As the majority opinion points out, the motion to quash was apparently premised upon the question of the DOT officers’ authority to make the initial stop of appellee’s automobile, but no evidence was presented to show what actually occurred at that time and no facts were stipulated. OCGA § 32-6-29 (a) (12) empowers DOT to appoint enforcement officers who, in addition to their powers to enforce specific licensing and fuel tax registration requirements, shall have the power to “protect any life or property when the circumstances demand action.” However, the State failed to show that appellee was engaged in a statutory activity concerning which the DOT officers had any specified powers to make arrest, nor did it submit any proof that the officers were acting to protect any life or property. Further, as recognized by the majority, there was no evidence to show whether a citizen’s arrest was made pursuant to OCGA § 17-4-60 or if the DOT officers observed a criminal offense taking place. If a criminal offense was committed, it must be shown that a “reasonable articulable ground” existed to make a warrantless arrest, and each case depends on its own facts. See State v. Hodges, 184 Ga. App. 21 (360 SE2d 903) (1987); Tarwid v. State, 184 Ga. App. 853 (1) (363 SE2d 63) (1987).

“ ‘The [S]tate has the burden of proving the lawfulness of [appel-lee’s] warrantless arrest. [Cits.]’ ” Smith v. State, 188 Ga. App. 574, 575 (373 SE2d 800) (1988). “ ‘We will not presume error from a silent record. [The State had] the burden of showing error affirmatively by the record and this burden [was] not discharged by recitations in the brief. [Cits.]’ ” Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281) (1988). Accord In re Holly, 188 Ga. App. 202 (372 SE2d 479) (1988).

2. I am also concerned with the majority’s overruling of the trial court’s order granting appellee’s motion to quash the indictment on the ground that such motions must be in writing. The transcript of a pretrial hearing which is before us on appeal reveals that defense counsel sought permission at the outset to file a written motion to quash the indictment accompanied by a brief. After hearing arguments of counsel in regard to the merits of this motion, i.e., the DOT officers’ authority to stop appellee’s car, the trial court agreed to allow both parties to submit briefs contending what the facts were, which the court would accept as true “for the purpose of this motion.” The prosecutor made no objection to this ruling. Defense counsel submitted a memorandum of law in support of appellee’s motion to quash, with two supplemental additions, but the record does not show that the State filed anything in response.

The order appealed from by the State recites as follows: “Defendant having filed a motion to quash indictment and the Court having considered the briefs of law and all other matters properly of record in said case, . . . said Indictment is hereby dismissed.” The State likewise raised no objection to the form or content of this order; on appeal it argues only that the trial court had sufficient evidence before it to find that the DOT enforcement officers were acting in the performance of their statutory duties and authorized to stop appellee when they encountered him driving in a reckless and dangerous manner that threatened the safety of persons and property. Thus it is clear that insofar as the form of the motion to quash is concerned, the State “acquiesced in the ruling of the trial court and placed no objection to the procedure adopted. The failure to make timely and specific objection at trial may be treated as waiver. [Cits.]” Riley v. State, 180 Ga. App. 409, 411 (349 SE2d 274) (1986). Accord In the Interest of J. L. Y., 184 Ga. App. 254 (3) (361 SE2d 246) (1987).

The issue of whether the motion to quash was required to be ir writing was first raised and considered sua sponte by the majority as a basis for reversing the order granting it. I cannot agree that this court can properly transform a possible error that has been waived into a ground for reversal. “ ‘The duty of the appellate court is to correct errors alleged to have been made in the trial court. . . .’ [Cits.]” Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 747 (360 SE2d 70) (1987).

Decided June 30, 1989

Rehearing denied July 17, 1989

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

C. Deen Strickland, for appellee.

For the reasons stated, I respectfully dissent.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A0499.
    ALLEN v. HOWARD.
    (384 SE2d 894)
   Birdsong, Judge.

This is the second appearance of this case before us, contesting the denial of appellant Allen’s applications for a stay of the proceedings under the Soldiers’ & Sailors’ Civil Relief Act of 1940 (50 USCA 521) in a paternity action brought by appellee Howard. In the first instance, Allen brought a direct appeal from the trial court’s refusal to stay the proceedings, and based upon the record then, we affirmed the denial of the stay. Allen v. Howard, 185 Ga. App. 758 (365 SE2d 546). After the case was returned to the trial court, the case was scheduled for trial during the term of court commencing May 2, 1988.

On April 24,1988, Allen’s counsel wrote the trial judge requesting that the case be taken off the May 2 trial calendar as Allen had been denied leave for the period of the trial calendar. Attached to that letter were copies of the official U. S. Navy form on which Allen requested leave and which showed that his request had been denied by his commander, and a letter from Allen’s commanding officer which stated that because of current training schedule restrictions any leave requests would be denied at that time. The letter also stated that leave “is granted when it is allowed to be taken as the needs of the Navy dictate.” Allen’s counsel also requested that the judge telephone Allen’s commanding officer about the matter and suggested that the case be specially set for “a date and time certain, which will not conflict with the [defendant's duties with the United States Navy.” The record does not indicate any response which may have been made to this letter.

On May 2, 1988, Allen’s attorney filed a motion for a continuance and another motion for a stay of the proceedings pursuant to the Soldiers’ & Sailors’ Civil Relief Act. Attached to the motion for stay was another copy of an official Navy leave request form submitted by Allen on April 26, 1988, again requesting leave for the period of the scheduled trial, but asking for a shorter leave, and specifically requesting “Emergency Leave.” This leave was denied with the notation “Does not constitute an emergency [in accordance with Military Personnel Manual]. Student cannot be removed from class without being dropped out of class or set back.” Also attached to the motion were the documents attached to the earlier letter to the court and an affidavit from Allen.

Both motions were denied, and the case proceeded to trial on May 2, 1988. An order of the trial court filed on May 26, 1988, denied the motions effective May 2, 1988.

The evidence in support of Howard’s paternity claim against Allen at trial consisted of her testimony that they engaged in sexual intercourse on from three to five occasions. No blood test or scientific evidence was introduced showing that Allen was the father of the child. Further, the evidence of Allen’s income was testimony by Howard that Allen had shown her his paycheck and that as she recalled he was paid $1,500 per month. Howard’s parents also testified and generally supported her claims, although obviously they could not provide direct evidence that Allen was the father of their grandchild. The defense introduced only two letters in evidence. Neither letter went to the issue of paternity. At the close of the defense case, the trial court granted Howard’s motion for a directed verdict on the paternity claim. The case went to the jury on child support and medical expenses for the mother and child.

The jury verdict awarded the plaintiff child support of $75 per week, $1,100 in medical expenses for the mother for the birth of the child, and held Allen liable for the child’s medical and dental expenses until the child reaches his majority or is otherwise emancipated. The trial court also ordered that Allen pay the plaintiff’s attorney fees of $2,250 and court costs, including $300 in fees for the guardian ad litem appointed for the child.

After filing a motion for new trial which was denied, Allen appealed from the judgment of the trial court and from a $10,000 super-sedeas bond which was granted by the trial court on the plaintiff’s motion. He enumerates as error the trial court’s denial of his motion for a stay of the proceedings pursuant to the Soldiers’ & Sailors’ Civil Relief Act, denial of the motion for a continuance, and several other rulings of the trial court, including the granting of the supersedeas bond and the denial of the motion for new trial. Held:

1. Under the circumstances reflected in the record at that time, this court sustained the trial court’s earlier denial of Allen’s request for a stay of the proceedings under the Soldiers’ & Sailors’ Civil Relief Act. Allen v. Howard, supra. Our ruling, however, did not mean that Allen would never be entitled to a stay of the proceedings. There are significant differences between the record presented in the first appeal and that before us now. In the record on the earlier appeal, Allen merely relied upon his service in the Navy and his duty station in California as his basis for the stay. There was no indication in the record that he even so much as attempted to request leave from the service to either attend the trial or prepare his defense. Thus, relying on Underhill v. Barnes, 161 Ga. App. 776, 777 (288 SE2d 905), we affirmed the trial court.

Now the record before us presents a different situation. Allen’s motion for a stay is supported by duplicate original copies of two official leave requests for the period of the trial, both of which were denied by his commanding officer. Further, the record contains a letter from Allen’s commanding officer stating that leave would not be granted while Allen was in school. We note that notwithstanding the first denial Allen submitted the second leave request for “Emergency Leave,” which was denied because under the Navy Military Personnel Manual the request did not constitute an emergency. We also note that the record contains the request from Allen’s attorney that the court intercede with Allen’s commanding officer to see that leave would be granted. While we do not suggest that the court should have contacted the commanding officer, the request suggests that Allen had made good faith efforts with the Navy to obtain leave so that Allen could attend the trial.

This court has earlier decided that “[s]ection 521 of 50 USCA App. pertinently provides that when a member in the military service applies for a stay of proceedings, the proceedings shall be stayed, ‘unless in the opinion of the court, the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service.’ ” Esco v. Jackson, 185 Ga. App. 901, 904-905 (366 SE2d 309). The trial court’s discretion in this matter “is not an absolute discretion, but is a legal discretion to determine, from the facts in evidence, whether the absence of the defendant on the trial of the case will materially affect his ability to defend the action. . . .” Cox v. Yates, 96 Ga. App. 466 (2) (100 SE2d 649). The trial judge’s “conclusion, however, must be supported by some facts or data, and can not rest upon mere supposition or conjecture.” Lankford v. Milhollin, 197 Ga. 227, 235 (28 SE2d 752). In this instance we do not know the basis for the trial court’s denial of the stay because no reasons were stated in the order. There appear to be, however, only two possibilities. Either the trial court determined that the application for the stay itself did not demonstrate that Allen had “exercised due diligence or acted in good faith in attempting to make himself available for trial [or] that his military service did not affect his ability to conduct his defense.” Underhill v. Barnes, supra.

The record now before us shows that Allen submitted two applications for leave in order to attend the trial and that his commanding officer denied the requests. There is no evidence suggesting that Allen’s request was not made in good faith. Further, the letter from his commanding officer states that leave was not granted because of the needs of the Navy. Since it is presumed that Allen’s commanding officer performed his duties lawfully and in good faith (Hudson v. State, 185 Ga. App. 508, 509 (364 SE2d 635); Strother Ford v. First Nat. Bank, 132 Ga. App. 268, 270 (208 SE2d 25)), we cannot conclude from this record that the leave was denied for any other reasons. Allen cannot be held responsible for the lawful actions of his commanding officer. Further, for Allen to depart his duty station without (proper leave) authority is a criminal offense under the Uniform Code of Military Justice (10 USC 886). Thus, we must conclude that Allen’s absence from the trial was in good faith. The letter from Allen’s attorney to the court in which he requested the assistance of the court in obtaining Allen’s attendance at trial or asking for a special setting of the trial when the trial date would not conflict with the needs of the Navy also supports this conclusion.

Moreover, it cannot be suggested reasonably that Allen’s absence from the trial did not materially impair his ability to conduct his defense. The case against him on the issue of paternity rested on the in-court testimony of Howard and, to a minor extent, to her parents. There were no scientific or medical tests introduced tending to prove his paternity. Allen’s contentions, as reflected in his pretrial order, denied that he was the father of the child. Thus, this case would have been decided on the jury’s evaluation of the credibility of the witnesses. Allen had “[a] substantial right. . . to be present at the trial and render assistance to his counsel as the developments unfold[ed],” Mays v. Tharpe & Brooks, 143 Ga. App. 815, 816 (240 SE2d 159), and we have recognized that “[generally . . . parties to civil actions . . . have [a] right to be present at all stages of the trial.” Cox v. Yates, supra at (3). Further, where credibility is an issue, “it cannot be said, even if the defendant were able to give evidence by deposition which adequately covered his theory of the case, that his absence would not materially affect his ability to defend the case.” Id. at 467.

Accordingly on the record now before us, we must conclude that the court abused its discretion in denying the application for a stay pursuant to the Soldiers’ & Sailors’ Civil Relief Act. Smith v. Smith, 222 Ga. 246, 247 (149 SE2d 468). Further as we also find that Allen was prejudiced by his absence from the trial, Saborit v. Welch, 108 Ga. App. 611, 613 (133 SE2d 921), the judgment of the trial court must be reversed.

Decided July 3, 1989

Rehearing denied July 17, 1989

John .W. Knapp, Jr., for appellant.

Larry D. Ruskaup, for appellee.

2. In view of our decision in Division 1, we need not address the other enumerations of error.

Judgment reversed.

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


text:
    A89A0301.
    LAW v. LAW.
    (384 SE2d 891)
   Birdsong, Judge.

This appeal concerns the determination of the beneficiary’s right to proceeds of a Federal Employees Group Life Insurance (FEGLI) policy issued by the Metropolitan Life Insurance Company (Metropolitan). The appellant, Mary E. Law, is the ex-wife of the deceased, Clarence L. Law. They were married in 1946 and divorced in December 1977. In May 1978, Clarence Law married the appellee, Helen E. Law. He died in December 1982.

In June 1973, Mr. Law executed a form which designated Mary Law as the beneficiary of his FEGLI. Although the instructions for completing the form stated that the form “must be free of erasures or alterations,” there was a correction on the form because Mr. Law had mistakenly printed his own name in the place where the beneficiary should be indicated. Consequently, his name was lined out, and Mary Law’s name printed by Mr. Law on the next line. Mr. Law’s execution of the form was witnessed by David H. Alley, Mr. Law’s supervisor at work and personal friend. The signature of Rita Kozak, an employee of the local personnel office, also is in one of the spaces for witnesses, but it now appears that she did not witness Mr. Law’s execution of the form, and the record does not show that she witnessed Mr. Law’s execution of the form at any later time. This form with the correction was accepted, however, as Mr. Law’s designation of his beneficiary for his FEGLI.

Before his death in 1982, no other document concerning Mr. Law’s FEGLI beneficiary was received by the offices administering the FEGLI program. Thus, the 1973 designation was determined to be the only executed, witnessed, and filed designation of beneficiary for Mr. Law.

Both Mary Law and Helen Law filed claims to receive the FEGLI proceeds. As Metropolitan found Mary Law to be the only properly designated beneficiary, it advised Helen Law that it intended to pay the proceeds to Mary Law. To prevent that payment, Helen Law filed suit against Mary Law and Metropolitan seeking to enjoin payment to Mary Law and to secure the proceeds for herself. Metropolitan was dismissed from the case after paying the proceeds of the policy into the court. Mary Law then filed a motion for summary judgment contending that as the only validly designated beneficiary, she was entitled to the proceeds as a matter of law. Helen Law filed pleadings opposing the motion, but did not specifically file either her own motion or a cross-motion for summary judgment. Her supplemental reply brief in opposition to Mary Law’s motion, however, asked the trial court to rule as a matter of law that the form designating Mary Law as the beneficiary was invalid. After first only denying Mary Law’s motion for summary judgment, the trial court then issued an “Amended Order” which corrected the prior order and granted summary judgment to Helen Law.

Mary Law now appeals from the grant of summary judgment to Helen Law and assigns as error the denial of her motion and the grant of summary judgment to Helen Law. Held:

1. Mary Law’s entitlement to summary judgment turns initially on the validity of her designation as Clarence Law’s beneficiary in 1973. If she is the valid beneficiary, she would be entitled to the proceeds. Liles v. Russell, 230 Ga. 686, 691 (198 SE2d 873).

We must note at the outset, however, that this is not the usual life insurance policy, but instead one for federal employees and is regulated by the laws of the United States and the regulations promulgated by the appropriate federal agencies implementing those laws. Knowles v. Metro. Life Ins. Co., 514 FSupp. 515 (N.D. Ga. 1981). Of course, federal law and regulations preempt inconsistent state law. Fidelity Fed. Savings &c. Assn. v. de la Cuesta, 458 U. S. 141 (102 SC 3014, 3022, 73 LE2d 664); Metropolitan Life Ins. Co. v. McShan, 577 FSupp. 165, 166 (N.D. Cal. 1983).

In this instance, 5 USC § 8705 (a) prescribes the procedure for designating a FEGLI beneficiary and determines the order of payment: “The amount of group life insurance . . . insurance in force on an employee at the date of his death shall be paid, on the establishment of a valid claim ... in the following order of precedence: First, to the beneficiary or beneficiaries designated by the employee in a signed and witnessed writing received before death in the employing office or, if insured because of receipt of annuity or of benefits under subchapter I of . . . this title ... in the [proper federal office]. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.”

This code section does not specify the number of persons required to witness a designation of beneficiary, nor does it contain any provisions on erasures and alterations on the designation form. To the contrary, the section provides only that the designation be in writing, signed by the employee, witnessed, and received before the employee’s death.

To appreciate fully the significance of the code provisions concerning “a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed,” one must note that in 1966 Congress specifically amended the law to state that “a document not so executed and filed has no force or effect.” Public Law 89-374; 80 STAT 78. This amendment was made specifically to clarify the intent of Congress that such documents must be properly executed, witnessed, and “properly received” in the appropriate office before the death of the insured. Senate Report No. 1064, 89th Congress, 2d Session, reprinted in 1966 Congressional & Administrative News, pp. 2070-2071. Further, the amendment was intended to prohibit documents not properly executed and filed from being given the effect of changing a beneficiary, as one federal court permitted before the section was changed. See generally O’Neal v. Gonzalez, 839 F2d 1437 (11th Cir. 1988).

Pursuant to the grant of authority by Congress, 5 USC § 8716(a), the federal agencies charged with administering the FEGLI program published regulations necessary to carry out the purposes of the law. These regulations have the force and effect of law. Knowles v. Metro. Life Ins. Co., supra.

Before January 6, 1988, the applicable regulation, 5 Code of Federal Regulations, Part 870.901, stated no number of witnesses required to execute properly a designation of beneficiary. This regulation was changed on that date to require that there be two witnesses. 52 Federal Register, No. 234, pp. 46343-46344, December 7, 1987. There are also no provisions in the regulations concerning erasures or alterations on the designation form.

Considering the designation of beneficiary executed by Clarence Law in June 1973, in light of the law and regulation cited above, there is no doubt that it was properly executed. The laws and regulations in effect at that time required only that the form be executed by Mr. Law, that it be in writing, that it be witnessed, and that it be received in Mr. Law’s employing office before his death. The June 1973 designation met all of those requirements. Further, the office administering the FEGLI has determined that this form was the only one properly executed and filed. Although Helen Law argues that Mr. Alley was a friend of Mary Law and was for that reason not a proper witness, there is no such disqualification, as to relationship in the law or regulations; and, any such relationship generally affords no basis for an allegation of impropriety, e.g., fraud in the witness, and specifically in this case. We note that the record reveals that Mr. Alley was also a friend of Clarence Law and was his supervisor at work, and presumably carried out his intent to witness and no more. Thus, we find no basis in the record for any suggestion that Mr. Alley was not a proper witness. Further, the “primary reason for having a witness is to establish the intent of the insured and ensure that the act is voluntary.” O’Neal v. Gonzalez, 653 FSupp. 719, 722 (S.D. Fla. 1987). As Mr. Law survived for almost ten years after the designation of Mary Law as his beneficiary, and four years after he married Helen Law, there can be little doubt that his act was voluntary and that Mary Law was his desired beneficiary.

In regard to the contention that the correction on the form somehow invalidated the designation, we find no authority supporting this argument, and as noted above, such a requirement exceeds the legal or regulatory requirements for a proper designation. Further, adoption of this contention would be to exalt form over substance as well as to misstate the requirements of the law.

Accordingly, we find that Mary Law was properly designated as the beneficiary of Clarence Law’s FEGLI in June 1973, and would be entitled to summary judgment on this basis unless a different beneficiary was thereafter designated.

2. Helen Law argues, however, that notwithstanding the validity of the designation of Mary Law as beneficiary in 1973, she was the proper beneficiary at Clarence Law’s death because he “had taken the steps he had deemed necessary in order to change the beneficiary on his annuity plan and his life insurance policy from his ex-wife Mary to his current wife Helen.” As support for this proposition, she presented to the trial court what appears to be a slip of paper with various numbers and statements typed or written thereon. This slip appears to be attached to an insurance portfolio from an insurance company other than Metropolitan. Whatever these documents represent, it is obvious that even if submitted to the proper authorities now, they could not properly constitute a valid change of beneficiary under the applicable law and regulations. Further, the record establishes that the appropriate offices have searched their files and no change of beneficiary was received before or after Clarence Law’s death designating Helen Law the beneficiary of his FEGLI. Under these circumstances we must conclude, as a matter of law, 5 USC § 8705 (a), that there has been no proper designation or change of beneficiary submitted, and that accordingly, Helen Law is not the beneficiary of this policy.

Accordingly, as Mary Law was the only proper beneficiary of the life insurance policy, we find that the trial court erred by denying her motion for summary judgment and by granting summary judgment to Helen Law. Accordingly, we must reverse the judgment of the trial court and remand the case with instruction that summary judgment be entered in favor of Mary Law.

Decided June 30, 1989

Rehearing denied July 18, 1989

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellant.

Pamela M. Spencer, Austin J. Kemp II, for appellee.

This result is consistent with the law of this state notwithstanding our necessary reliance on federal authorities. See Maxwell v. Britt, 171 Ga. App. 230, 231 (319 SE2d 88); Belote v. Belote, 167 Ga. App. 8, 9 (306 SE2d 24).

Judgment reversed with direction that the trial court enter judgment for Mary Law.

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


text:
    A89A0526.
    LENNY’S NUMBER TWO, INC. v. ECHOLS.
    (384 SE2d 898)
   Birdsong, Judge.

Appellant Lenny’s No. Two, Inc. (“Lenny’s”) appeals from the adverse judgment and verdict in a personal injury case arising from an altercation at Lenny’s nightclub in which Echols, a patron, was injured. It is not disputed that Lenny’s security guards, including one man known as “Rambo,” decided that Echols, who was apparently intoxicated, should leave the premises. According to witnesses on Lenny’s behalf, Echols was surrounded by four security guards and escorted to the door without physical contact between the security guard and Echols, and without causing a disturbance. According to Lenny’s chief of security, when Echols was outside Lenny’s, Echols became involved in a sudden confrontation with an unknown patron, who apparently had not been seen before, nor seen since, and who gave Echols a karate kick to the chest which knocked him on his backside. The security guards broke up this altercation, and about this time, the police arrived and took Echols away.

Echols and. his witness, Whiting, who is a friend and perhaps a relative of Echols, testified to a different set of facts. According to Echols and Whiting, Echols was standing near the bar when three security guards gathered about him. Rambo stood in front of Echols and the other two stood behind Echols and to either side and grabbed Echols’ arms. Then, according to Whiting, Rambo hit Echols in the face with his fist, which had a metallic object in it. Both Echols and Whiting testified that the blow was struck without provocation by Echols.

They also testified that the other security guards kept Echols from falling to the floor, hustled him to the door, and threw him outside. Whiting also testified that when he then saw the security guards start to beat Echols outside of the club, he intervened, and about this time, the police came. Whiting testified that he saw no one other than Lenny’s security guards strike Echols. Both Echols and Whiting testified that Echols’ injuries, a fractured skull and ankle, were caused by the actions of Lenny’s security guards.

Although Lenny’s presented witnesses tending to establish that Echols sustained his injuries other than from the events at Lenny’s and caused Echols to admit under cross-examination that he told a nurse at the hospital that he was injured when he fell into a brick wall, the jury returned a verdict for Echols for $100,000 in compensatory damages.

Lenny’s now appeals and enumerates as error that the verdict and judgment were defective on the general grounds, the trial court erred by refusing to give several requested charges, and the trial court erred by excluding the medical records showing that Echols told the nurse that he fell into a brick wall. Held:

1. Although Lenny’s enumerates 11 separate errors, the different enumerations can be grouped by the issues asserted. The first three enumerations of error attack the verdict and judgment on the grounds that both were contrary to the law and the evidence. We have examined the record on appeal and find that the evidence supports the verdict and the judgment. Further, “rearguing of the evidence, upon which the jury has already passed, provides no basis for an appeal. The entire question of fact, and particularly the weight and preponderance of the evidence are for the jury. On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777).” J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (380 SE2d 282). There being evidence in the record to support the verdict, there is no basis for Lenny’s assertions. Further, we find no errors of law which would make the judgment contrary to law. Accordingly, enumerations of error 1, 2, and 3 are without merit.

2. Enumerations of error 4-7 assert that the trial court erred in refusing to give certain defense-requested charges premised on Lenny’s assertion that Echols was a licensee at the time of his injury. The charges defined terms, expounded on duties owed a licensee, and provided the test for determining whether one is an invitee or a licensee. Lenny’s properly requested the charges in writing and then made the necessary objection when the trial court refused to give the charges requested. The question presented on these charges is whether an issue about Echols’ status was raised by the evidence. In ternational Brotherhood &c. v. Briscoe, 143 Ga. App. 417, 427 (239 SE2d 38).

Lenny’s contention is based upon the concept that one can have the status of a business invitee originally, but because of changed circumstances the status may change to that of a licensee, or even a trespasser. Ginn v. Renaldo, Inc., 183 Ga. App. 618, 621 (359 SE2d 390); Armstrong v. Sundance Entertainment, 179 Ga. App. 635, 636 (347 SE2d 292).

The theory underlying this concept is that a patron is a business invitee only as long as his presence on the premises is of a present mutual benefit to himself and the owner or operator of the establishment. Savage v. Flagler Co., 185 Ga. App. 334, 337 (364 SE2d 52), rev’d in part on other grounds, Flagler Co. v. Savage, 258 Ga. 335 (368 SE2d 504). Further, an invitee’s presence on the premises may be limited in space or time and, exceeding one’s permission in regard to either, can cause one to lose his status as an invitee. Armstrong v. Sundance Entertainment, supra.

In the nightclub setting, the change typically occurs when a patron becomes unacceptably intoxicated or otherwise sufficiently offensive so that he is asked to leave. The difficulty in using the concept is deciding the precise point at which the invitee no longer has a present business relationship with the nightclub so that the patron’s presence there is no longer of mutual benefit. Among those patrons who are asked to leave, it is not clear that all instantly become licensees merely because they are asked to depart. Even drunken patrons can provide some benefit to the nightclub if they exit peacefully and relatively promptly on request. In such circumstances, other purchasing patrons are less likely to be disturbed or frightened into voluntarily quitting the premises, or to be given a negative impression of the club’s business reputation. More importantly, peaceful patron egress significantly reduces the risk of injury to other patrons and club employees during that critical period. Further, as nightclubs are potentially liable for damages caused by drunken patrons after they leave the premises (see Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716)), it can be to the nightclub’s benefit for the patron to remain on the premises until a safe means for his departure is obtained.

From the testimony of Echols and Whiting, no issue is created that Echols was anything other than an invitee. Indeed, Echols testified that he was not even asked to leave before he was struck in the face.

Even if we study only the testimony of Lenny’s witnesses, the evidence still does not create an issue about Echols’ status. According to Lenny’s chief of security, he had noticed Echols earlier and recognized that he was intoxicated, but did not feel the need to ask him to leave. Then, when a complaint was received that Echols had allegedly touched improperly one of the male dancers, Echols was asked to leave and was escorted without incident of physical resistance or violence from the nightclub by four of Lenny’s security guards. When outside on Lenny’s sidewalk, Echols was attacked unexpectedly by another patron. This testimony, however, does not suggest the conclusion that Echols’ presence at Lenny’s was not pursuant to a continuing present business relationship with Lenny’s. Indeed, during egress, Echols was under the informal custody and actual control of Lenny’s security chief and was still in the immediate presence of Lenny’s security and at the location on Lenny’s property in which he was placed by them when attacked. In the totality of the attendant circumstances, we do not find that asking Echols to leave was sufficient to change automatically Echols’ status to that of a licensee or create a jury issue on that question.

For reasons indicated above, it is not too much to expect that the proprietor who contributed to a patron’s drunken condition by serving him alcoholic beverages will continue to have a mutual business relationship with the patron until such time as the patron safely and relatively promptly leaves the premises, or otherwise physically resists the authority of the proprietor over the premises sufficiently to establish conclusively that the status as an invitee has been withdrawn. In Sun v. Bush, 179 Ga. App. 80 (6) (345 SE2d 85), we held “[i]t is not error for the trial court to refuse ... to charge on principles of law not applicable to the case.” Accordingly, we do not find that the testimony raises the issue of Echols’ status as a licensee, and, therefore, it was not error for the trial court to refuse to give requested charges numbers 16, 17, 18, and 19 as asserted in enumerations of error 4-7.

3. Enumeration 8 asserts that the trial court erred by refusing to charge that Lenny’s could not be found liable if the jury found that the altercation and injury happened suddenly and without warning, and that the owner could not through the exercise of ordinary care have discovered or prevented the assault on Echols. The record shows that the trial court gave another charge, also requested by Lenny’s, that “the law does not impose a duty on a person to guard against sudden, unforeseen and not reasonably to be anticipated acts of another person.” This charge amply instructed the jury on the matters also requested by Lenny’s in requested charge no. 20. A party is not entitled to have all of his requested charges given merely because he requests them. Here, the principle covered in the requested charge was encompassed elsewhere in the charge to the jury, and there was no error not to give the same principle again. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (256 SE2d 916).

4. In enumeration 9 Lenny’s contends the trial court erred by refusing to charge that a proprietor has no obligation to save a business invitee from an assault arising from the assailant’s personal malice toward the victim. The requested charge is based on this court’s decision in Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 674 (165 SE2d 179). In that case the plaintiff was attacked in a store by another customer with whom she had apparently been having a longstanding dispute about matters unrelated to any occurrence on the store’s premises. We held that we were aware of no authority requiring the store, under those facts, to intervene to protect the victim. There is no evidence that any of the conditions in the Shockley case existed in the present case. Accepting arguendo the allegation that Echols was injured by another patron, there is no evidence that the attack was the result of any personal malice which developed other than while Echols was a business invitee of Lenny’s. Further, extended beyond its facts, the statement from Shockley v. Zayre, supra, would relieve proprietors from any liability for attacks by patrons on others, no matter how reasonably the attack might have been anticipated. Consequently, the better rule appears to limit the principle established in Shockley v. Zayre to instances involving those unusual facts. Further, this court has again recently recognized that a proprietor has a general duty to protect patrons from foreseeable attacks by employees or other patrons. Overground Atlanta v. Dunn, 191 Ga. App. 188 (381 SE2d 137). As a business invitee, Echols would be entitled to be protected by Lenny’s security force from assaults by other patrons if, through the exercise of ordinary care, the assault could have been reasonably anticipated and prevented. Veterans Organization v. Potter, 111 Ga. App. 201 (141 SE2d 230); Adamson v. Hand, 93 Ga. App. 5, 8 (90 SE2d 669). Accordingly, refusal to give the requested charge was not error.

5. Lenny’s final enumeration concerns the trial court’s refusal to admit into evidence as a prior inconsistent statement a statement in medical records that Echols made to a nurse that he was injured when he fell into a brick wall. The transcript reveals that on cross-examination, Echols admitted making the statement contained in the records. A prior inconsistent statement of a witness is admissible as substantive evidence, Gibbons v. State, 248 Ga. 858 (286 SE2d 717); c.f., Harden v. State, 166 Ga. App. 536 (304 SE2d 748), but it was not reversible error for the trial court to exclude the records in this case because Echols admitted under oath on the witness stand that he made the statement. Therefore, there was no harm to the appellant. Transamerica Ins. Co. v. Smith, 147 Ga. App. 574 (249 SE2d 663).

The appellant’s enumerations of error all being without merit, the judgment of the trial court should be affirmed.

Judgment affirmed.

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

Decided July 3, 1989

Rehearing denied July 18, 1989.

Lokey & Bowden, Peter K. Kintz, David N. Baker, for appellant.

Pashley & Grossman, Bruce E. Pashley, Leonard B. Grossman, for appellee.


text:
    A89A0870.
    SANBORN v. FARLEY et al.
    (385 SE2d 6)
   Birdsong, Judge.

This appeal concerns how uninsured motorist exposure is computed under OCGA § 33-7-11 (b) (1) (D) (ii). Appellant Sanborn was a passenger in a car driven by Jordan when it was involved in a collision with another car driven by Farley. Sanborn was injured, and the parties agree that she incurred damages of at least $70,000. Contending both were negligent, Sanborn sued Jordan and Farley. She also served her personal insurance carrier and Jordan’s insurance carrier to invoke coverage under the uninsured motorist coverages available under both policies. All issues in the case, including the liability of Jordan and Farley, have been resolved, except for the uninsured motorist carriers’ liability to Sanborn, and all undisputed amounts have been tendered.

Sanborn had $25,000 uninsured motorist coverage limits on her policy with Cincinnati Insurance Company and there was also $15,000 uninsured motorist coverage available to her as a passenger in Jordan’s car through Allstate Insurance Company’s coverage on Jordan’s car. There is no dispute that she has a total of $40,000 uninsured motorist coverage. Sanborn contends that she is entitled to recover the full $40,000 from the uninsured motorist carriers even though Jordan and Farley each had bodily injury liability insurance limits of $15,000.

Sanborn’s theory is that from the $40,000 uninsured motorist coverage she is entitled to subtract Farley’s $15,000 liability coverage leaving Farley uninsured for $25,000, and then subtract from the $40,000 uninsured motorist limits Jordan’s $15,000 liability coverage leaving Jordan uninsured for another $25,000. Thus, Sanborn contends that the tortfeasors were uninsured for $50,000, with $40,000 of that amount payable under the policies’ limits. She claims $25,000 from Cincinnati as her personal carrier and the remaining $15,000 from Allstate.

Sanborn’s theory of recovery is that OCGA § 33-7-11 (b) (1) (D) (ii) speaks in terms of an uninsured motor vehicle, and defines such as a motor vehicle with liability coverage limits which are less than the uninsured motorist insurance limits available to the injured insured. According to Sanborn, unless each vehicle in a collision is treated separately, uninsured motorist coverage would be determined on a by-accident basis, rather than on the by-vehicle basis as provided for in the code section.

The uninsured motorist carriers contend that the law does not require or permit the determination to be made as Sanborn contends, and that to do so would ignore the per person per accident limits in automobile insurance policies. The result, they contend, would be to permit Sanborn to multiply the uninsured coverage limits unreasonably by the number of alleged tortfeasors involved in a collision.

The trial court granted summary judgment to the uninsured motorist carriers. The court ruled that the proper way to determine the uninsured motorist exposure was to subtract the total liability coverage from the total uninsured motorist coverage and that in this case that left $10,000 which was owed Sanborn by Cincinnati as her personal carrier. Sanborn appeals from the grant of summary judgment against her. Held:

The plain language of OCGA § 33-7-11 (b) (1) (D) (ii) prohibits application of Sanborn’s theory. By the section’s terms, the uninsured motor vehicle can “only be considered to be uninsured for the amount of the difference between the limits of the bodily injury liability insurance . . . coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy.” OCGA § 33-7-11 (b) (1) (D) (ii). This court has previously held that this code provision must be read in light of the rule of statutory construction contained in OCGA § 1-3-1 (d) (6) that the singular ordinarily includes the plural. State Farm &c. Ins. Co. v. Hancock, 164 Ga. App. 32, 34 (295 SE2d 359). Consequently, there is no basis for Sanborn’s contention that the singular term, motor vehicle, in the code requires that each vehicle be subtracted separately from the total uninsured motorist coverage. Further, her theory disregards this court’s opinion in Georgia Farm &c. Ins. Co. v. State Farm &c. Ins. Co., 173 Ga. App. 844, 845 (328 SE2d 737), rev’d on other grounds, 255 Ga. 166 (336 SE2d 237), that the tortfeasor’s bodily injury liability coverage was properly deducted from the uninsured motorist coverage. Indeed, the method used in Georgia Farm Bureau, supra, to determine the amount of uninsured motorist coverage to which the insured/plaintiff was entitled was specifically approved by the Georgia Supreme Court: “total uninsured motorist coverage offset by the . . . liability insurance coverage actually available to her.” Georgia Farm &c. Ins. Co. v. State Farm &c. Ins. Co., 255 Ga. supra at 167. This method was also used in Lewis v. Atlanta Cas. Co., 179 Ga. 185, 187 (345 SE2d 858): “ ‘stacking’ the limits of all of the available uninsured motorist coverage and setting off the limits of the available liability coverage. ...”

Decided July 6, 1989

Rehearing denied July 18, 1989

Cliff C. Perkins, for appellant.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, William S. Allred, Thomas E. Greer, Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, for appellees.

While Sanborn argues that these cases were ones in which there was only one tortfeasor with liability insurance limits less than the uninsured motorist insurance limits, there is nothing in any of the decisions which suggest that the rules established either in the cases or the code section are applicable only in such cases. Further, we specifically hold that there is no such limitation.

Moreover, as the appellees note, under Sanborn’s theory the number of alleged tortfeasors would determine the amount of uninsured motorist exposure rather than the uninsured motorist coverage in the policies insuring the injured plaintiff. We do not believe this to be the intention of the legislature. Looking “to the natural and most obvious import of the [code section’s] language,” Earth Mgmt. v. Heard County, 248 Ga. 442, 444 (283 SE2d 455), we find that summary judgment was properly granted against Sanborn.

Judgment affirmed.

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


text:
    A89A0967.
    HOFFER v. THE STATE.
    (384 SE2d 902)
   Birdsong, Judge.

Appellant Hoffer appeals his misdemeanor convictions of running a red light in violation of OCGA §§ 40-6-20 and 40-6-21 and of homicide by vehicle in the second degree in violation of OCGA § 40-6-393 (b). The trial court ruled that the offenses merged for sentencing and sentenced Hoffer to serve one year in the county jail, to pay a $1,000 fine, and to have his driver’s license suspended for one year.

This case arises from an intersection collision between a car driven by Hoffer and another car, a red Mustang. The passenger in the Mustang died of injuries sustained in the collision. Traffic through this intersection is controlled by a traffic light. There is no dispute that the Mustang had a green light, but Hoffer contends that the traffic light facing him was also green.

OCGA § 40-6-21 (a) (3) (A) requires motorists facing a red light to stop at the intersection until the light turns green. Motorists facing green lights are authorized to proceed through the intersection. OCGA § 40-6-21 (a) (1) (A).

The State presented several witnesses who testified that the Mustang had a green light, and also called witnesses who were traveling on the same road as Hoffer, but in the opposite direction. These two witnesses stopped for the traffic light which Hoffer was convicted of running. The driver of this car testified that he stopped because the light first showed a yellow light and then changed to red. He also testified that from his viewpoint the traffic light was operating properly. The only direct evidence about the traffic light from Hoffer’s direction of travel was Hoffer’s testimony. He testified that he had a green light. He also testified, however, that just before he started in the intersection, he saw a “red blur.”

Hoffer called several witnesses who testified that they had observed traffic lights, including the one in question, malfunction on occasion. Further, there was testimony that at least on one occasion another traffic light was showing green in both directions. The defense also presented numerous character witnesses who testified about Hoffer’s good reputation for safe driving and his good reputation for truth and veracity.

The State called witnesses who saw the traffic light shortly before the collision. They testified that the traffic light was operating properly that day. Additionally, police officers who watched the light after the collision to see if the light was working properly testified that they saw nothing wrong with the light.

The defense’s contentions at trial were that Hoffer thought the light was green, that he had no intention of running a red light or of causing the victim’s death, and that if he did run the red light, it was the result of legal mistake or accident. Hoffer also presented evidence tending to prove that the Mustang was traveling in excess of what the defense contended was the speed limit.

Hoffer sought to prove that the victim was not wearing his seatbelt and that the driver of the Mustang was not tested for being under the influence of substances other than alcohol. The State’s objections to this testimony were sustained and the defense was precluded from following those lines of questioning.

Now Hoffer contends that the trial court erred by inadequately and incorrectly charging the jury on the intent required to commit the offenses charged, incorrectly charging on the law of accident by shifting the burden of proof to Hoffer and creating a mandatory presumption, and by excluding evidence on seatbelt use and drug testing as well as refusing to give charges as he requested. Held:

1. The first enumeration of error concerns the charge to the jury on the intent necessary to obtain a conviction. In essence, Hoffer contends that the intent necessary is the specific intent to run the red light. We disagree.

The State was not required to prove that Hoffer intentionally drove through a red light, or even that Hoffer knew that the light was red. “While criminal intent is a necessary element in the commission of the crime for which [Hoffer] was prosecuted, criminal intent is simply the intent to do the act which results in the violation of the law, and not the intent to commit the crime itself.” Nelson v. State, 27 Ga. App. 50, 52-53 (107 SE 400). In this sense, the word “ ‘intention’ as used in [OCGA § 16-2-1] does not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby.” Howard v. State, 222 Ga. 525, 526 (150 SE2d 834).

In Queen v. State, 189 Ga. App. 161 (375 SE2d 287), we held that traffic safety offenses promulgated in OCGA Title 40, Chap. 8, were strict liability offenses, which could be violated without mens rea or guilty knowledge. The offenses charged in this case are contained in OCGA Chap. 6, Title 40. As the purpose of the regulations codified in this chapter is “to promulgate the safe and expeditious movement of vehicular traffic on the highways,” Crook v. State, 156 Ga. App. 756, 757 (275 SE2d 794), and using the Queen analysis, supra, we reach the same conclusion in regard to Chapter 6. Unless otherwise indicated, violation of the offenses in OCGA Chap. 6, Rules of the Road, Title 40, are also strict liability offenses. Thus, there is no requirement to prove mental fault or mens rea as Hoffer asserts. See Davis v. Peachtree City, 251 Ga. 219, 220, n. 1 (304 SE2d 701).

Adoption of Hoffer’s theory would result in chaos, if not carnage, on the highways, and the complete frustration of the legitimate legislative purpose sought to be achieved by the codification of the Rules of the Road, and specifically OCGA §§ 40-6-1 and 40-6-20. This charge was given by the trial court: “Criminal intent does not mean an intention to violate the law or to violate a penal statute but means simply to intend to commit the act which is prohibited by a statute. In other words, to prove the element of criminal intent in this case, the State is required to prove beyond a reasonable doubt that the defendant drove his car through the intersection and that he intended to drive his car through the intersection at a point in time when the red light facing the defendant’s lane of travel was red.” This is a correct statement of the law.

Hoffer also asserts that the trial court committed error by not giving the identical charge on intent in the recharge as in the charge originally given. There is no merit in this contention. Both the original charge and the recharge were correct statements of the law of criminal intent applicable to this case. It is within the sound discretion of the trial judge to recharge in full or only on the points requested by the jury. Dyson v. State, 155 Ga. App. 297, 298 (270 SE2d 711). Further, “the necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court. . .” and the review is limited to determining whether the discretion was abused. “Since the recharge was not only warranted by the evidence but also legally accurate and not confusing or misleading as to amount to an abuse of discretion, we find no error.” Taylor v. State, 169 Ga. App. 842, 844 (315 SE2d 661). When as here, the charge and the recharge were legally accurate and contained the same legal principles if only stated somewhat differently there, there is no error. Accordingly, the first enumeration of error is without merit.

2. Since the State was not required to prove that Hoffer had the specific criminal intent to drive through the red light to secure convictions of the offenses, a jury charge to the effect that if the State proved Hoffer intentionally drove through the intersection when the light facing him was red the defense of accident would not apply, was a correct statement of the law.

Hoffer has not made clear how the defense of accident applies in this case. He first asserted that he could only be convicted if he had the intent to run the red light, and we assume that his theory was that if he mistakenly concluded that the light was green when it was in fact red, this defense should preclude his conviction. As stated in Division 1, this is not a correct statement of the law.

Because the trial court correctly and repeatedly charged that Hoffer could be convicted only if the State proved beyond a reasonable doubt that the stop light facing Hoffer was red, any defense based upon the light being green when Hoffer went through it, is not an accident defense. Logically, one cannot be convicted of running a red light if the light was, in fact, green. Accordingly, Hoffer’s contention that a malfunction of the light showing green lights in both directions does not give rise to the defense of accident. By its terms OCGA § 16-2-2 excuses crimes which are “committed by misfortune or accident. ...” Since under this argument there could have been no crime (Hoffer could not be convicted of running a green light), the testimony concerning the possible malfunctioning of the traffic light also did not warrant a charge on the accident defense.

Consequently, there is a question whether a charge on accident was even warranted in this case. Since the defense so emphatically urged that the charge be given, and since the charge as given in context with the full charge was not likely to confuse the jury, we find no error against Hoffer in the charge given. See Meyers v. State, 169 Ga. 468 (151 SE 34).

Hoffer also contends that the charge given impermissibly shifted the burden of proof to the defendant. We disagree. The charge in its entirety was abundantly clear as to who had the burden of proof and what must be proven to carry the burden. Assuming that the phrase “where it satisfactorily appears from the evidence there was no criminal scheme or undertaking,” taken out of context, might be considered to have the effect of shifting the burden, we do not find this to be so within the scope of the charge given. “This incorrect phrase within an otherwise correct statement of law could not have misled the jury where they had previously heard the correct rule over and over again.” Leonard v. State, 146 Ga. App. 439, 444 (246 SE2d 450). Considering the charge, Ward v. State, 238 Ga. 367, 370 (233 SE2d 175), “it is clear to us the jury was instructed that the [S]tate had the burden of proving every element of the crime beyond a reasonable doubt.” Ward, supra at 370.

The charge and recharge emphasized and reemphasized that the State had the burden of proof and that for Hoffer to be convicted, the jury must be satisfied beyond a reasonable doubt that Hoffer intentionally drove through the intersection at a time when the light facing him was red. Consequently, we also find no merit in the second enumeration of error.

3. As the last enumeration of error contains several unrelated contentions, the appellant has failed to follow the requirements of the Code. OCGA § 5-6-40; Hester v. Baker, 180 Ga. App. 627 (349 SE2d 834).

a. The defense was prohibited from pursuing a line of questioning about speeding tickets which the Mustang’s driver received before the collision. Other than Hoffer’s technical argument that the Mustang might still have been in a school zone because of the failure of the authorities to specify the end of the school zone, there was no evidence that the Mustang was speeding. In fact the school zone was some distance from the intersection. The witnesses, including an expert, all placed the speed of the Mustang within what everyone believed the speed limit to be, notwithstanding Hoffer’s school zone contention. Further, there was no evidence that the speed of the Mustang caused the accident. Accordingly, the speeding tickets the Mustang’s driver received had no relevance to any issue in this case. Hoffer urges that the tickets showed the other driver’s “fixed and uniform habits.” Any such alleged “habits” are not relevant to this case because the evidence showed that in this instance the other driver was not speeding. “An exercise of discretion by the trial court in excluding irrelevant evidence cannot be error and will not be error in the absence of an abuse of discretion.” Butler v. State, 173 Ga. App. 168 (325 SE2d 835).

b. The defendant also wished to question why the driver of the Mustang was tested only for his blood-alcohol content when the investigating police officer had indicated that he wanted all the people in the collision to be tested for other substances as well. Hoffer argues that this evidence might have been used to impeach the investigating officer, but how someone else’s failures could be used to impeach the investigating officer is difficult to comprehend. The evidence which the defendant sought was simply not relevant. “ ‘ “(E)vidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” ’ ” (Emphasis supplied.) Harris v. State, 183 Ga. App. 219, 221 (358 SE2d 634). Since it was established that the driver of the Mustang had the green light, and the presence of other substances in his blood would not prove the driver was speeding, the conclusions which Hoffer would draw from the line of questioning were not logical and the information would not have thrown light on any issue in the case. Excluding this line of questioning was not an abuse of the trial court’s discretion. See Palmer v. State, 186 Ga. App. 892, 899 (369 SE2d 38).

c. Hoffer also contends that the trial court improperly excluded questions concerning whether the deceased was wearing a seatbelt. The theory apparently was that this evidence would have authorized the jury to find that the injuries received in the collision would not have caused the death if a seatbelt had been worn. This argument would also excuse the death of a policeman if he was not wearing his bullet proof vest at the time he was shot and if the vest would have prevented the fatal wound. This is not the law. Additionally, there is no evidence supporting the assumption that the death producing injuries would not have been sustained regardless of the seatbelts. More significantly, however, the appellant’s argument is based upon an incorrect legal theory. The question presented for the jury was whether Hoffer caused the death by running the red light, and not whether the death would or could have been made less likely by wearing a seatbelt. The only evidence in this case is that the death resulted from injuries received in the collision. The correct test on whether Hoffer caused the death is set forth in Wilson v. State, 190 Ga. 824, 829 (10 SE2d 861): “Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of death, whenever it shall be made to appear . . . that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent. . . immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.” Given the evidence in this case and the issue, the testimony about the seatbelts also was not relevant. Consequently, there was no abuse of discretion by the trial court. Butler v. State, supra.

d. Appellant also argues that the trial court erred by not giving certain of the charges he requested in writing. The charges proposed were not raised by the evidence. For example, among other matters, the appellant requested charges on the duty to slow when approaching intersections and complex instructions on proximate cause. The evidence, however, did not raise issues concerning either matter. The trial court, of course, instructed that the prosecution must prove that Hoffer must have caused the death in this case, and given the uncon-tradicted evidence that the death was the result of injuries received in the collision, that was sufficient. Charges not applicable to the evidence should not be given, Todd v. State, 149 Ga. App. 574 (254 SE2d 894), and charges irrelevant to all issues to be determined by the jury may be rejected. White v. State, 230 Ga. 327, 338 (196 SE2d 849). Accordingly, the trial court did not abuse its discretion by not charging on these matters even though they were requested in writing by the defendant. See Bouttry v. State, 242 Ga. 60, 62 (247 SE2d 859); Hernandez v. State, 182 Ga. App. 797 (357 SE2d 131). The other matters asserted in this enumeration are equally without merit.

Decided July 7, 1989

Rehearing denied July 18, 1989

Douglas N. Peters, for appellant.

Robert F. Mumford, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A1023.
    ROSSVILLE BANK et al. v. SOUTHEAST FEDERAL SAVINGS BANK.
    (385 SE2d 9)
   Birdsong, Judge.

This is an appeal from the trial court’s order granting appellee/ defendant’s motion for summary judgment, and denying appellant/ plaintiff’s motion for new trial and to set aside the grant of summary judgment.

John W. Brock, Jr., owned two-thirds interest in the Brock Insurance Agency, and Marie H. Davis owned the remaining one-third. John Brock served as president of the agency. He obtained certain unsecured loans from appellant banks, and thirteen loans, allegedly secured by pledge of an agency bank account, from appellee Southeast Federal Savings Bank. Subsequently, John Brock died and ap-pellee bank obtained permission from Paul Brock, the deceased’s son and new agency president, to offset the outstanding loan against the account which had been pledged as loan collateral. Appellants brought suit on the grounds of fraud, and settled with all defendants except the appellee. As part of the settlement agreement, appellants were assigned any claims that the estate of the deceased, the Brock Insurance Agency, and the administrator of the estate may have against appellee bank. Appellants subsequently amended their complaint against appellee bank to aver that appellee had engaged in an improper offset constituting a breach of the contractual banking relationship between the agency and the appellee, and to aver an improper conversion of funds by the appellee. The thirteen loan documents on their face reflect that the deceased used varying forms of signatures when executing the notes. For example, on the earliest note in the series, the deceased signed it “John W. Brock, Jr.,” followed by the signature of “Brock Insurance Agency by John Brock, Jr.” Conversely, some notes were merely signed “John W. Brock, Jr.,” and some notes although signed “John W. Brock, Jr.,” reflected the name of the Agency elsewhere on the document though not part of the note per se. Held:

1. Appellants assert that the trial court erred in granting the ap-pellee’s motion for summary judgment as the thirteen notes were, as a matter of law, personal obligations of John Brock, Jr. Specifically, appellants argue that if the notes were the personal obligations of the deceased, the appellee would have no right to offset these obligations from a corporate savings account. Compare Yeomans v. Coleman &c. Co., 167 Ga. App. 646 (307 SE2d 121) and Citizens &c. Bank v. AVCO Fin. Svcs., 129 Ga. App. 605 (200 SE2d 309).

Appellants contend that under the provisions of OCGA § 11-3-403, all thirteen notes, as a matter of law, give rise to an individual indebtedness by John W. Brock. Pretermitting this question is the issue of whether parole evidence can be introduced to show the true intent of the parties as to the individual or corporate nature of the indebtedness. The cases of Bostwick Banking Co. v. Arnold, 227 Ga. 18 (178 SE2d 890) and Southern Oxygen &c. Co. v. De Golian, 230 Ga. 405 (197 SE2d 374) are distinguishable. This case is controlled by Federal Deposit Ins. Corp. v. West, 244 Ga. 396 (260 SE2d 89), and accordingly, parole evidence is admissible to establish whether the parties intended that John W. Brock, Jr., sign his name to the notes in a representative capacity thereby giving rise to a corporate rather than an individual indebtedness. Id. at 399 and 399 n. 4; see Hawkins v. Turner, 166 Ga. App. 50 (1) (303 SE2d 164). We find a genuine issue of fact exists as to the individual or corporate nature of the indebtedness.

2. Appellants assert that John W. Brock lacked the authority, in the absence of a corporate resolution as required by OCGA § 14-5-5, to make the thirteen loans and to pledge a corporate asset for these loans.

OCGA § 14-5-5, repealed effective July 1, 1989, pertinently provided that “[n]o director or officer of any corporation shall use or borrow for himself directly or indirectly any money or other property belonging to any corporation of which he is a director or officer without the permission of a majority of the board of directors or of a majority of a committee of the board authorized to act for the board.” Nothing in this Code section expressly requires that the permission to act be granted solely in the form of a corporate resolution. While it is usually preferred to have the board’s authorizations reflected formally in a corporate resolution “that method is not the exclusive one for establishing the existence either of authority or of inherent agency power” to make loans and pledge corporate assets therefore. Trust Co. &c. v. Nationwide Moving &c. Co., 235 Ga. 229, 233 (219 SE2d 162); see also Flo-Control v. Northeast Bank, 150 Ga. App. 880, 882 (258 SE2d 695). Thus, for example, a director’s or officer’s authority to act for the corporation also can be established by a course of dealings or usage in which the directors or stockholders have acquiesced. See generally Farrar v. Pesterfield, 216 Ga. 311, 313-314 (116 SE2d 229); Newton v. Social Circle &c. Co., 174 Ga. 320, 323 (162 SE 667); Garmany v. Lawton, 124 Ga. 876 (1) (53 SE 669). Normally, the question of whether authority to act exists by reason of usage or course of business dealings is a question of fact to be resolved by the factfinder. We find no reason to depart from this principle in this case.

Decided July 7, 1989

Rehearing denied July 18, 1989

Patrick, Beard & Richardson, Gary R. Patrick, John W. Beard, Robert L. Lockaby, Jr., William Crutchfield, for appellants.

Gleason & Davis, John W. Davis, Jr., for appellee.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    A89A1063.
    SMITH et al. v. GREAT SOUTHERN FEDERAL SAVINGS BANK.
    (385 SE2d 1)
   Deen, Presiding Judge.

This appeal is from the trial court’s confirmation of the appellee bank’s foreclosure sale of certain property on which it held a deed to secure debt. On November 1, 1983, Richard Smith III borrowed $225,000 from the appellee, and secured the indebtedness with three parcels of property. The deed to secure debt contained a power of sale authorizing sale of the property to pay the indebtedness upon default. It was discovered after execution of the security instrument that Smith’s daughter actually owned a one-quarter interest in the third parcel and that Smith had no authority to encumber that interest.

The loan ultimately went into default, and on June 7, 1988, the appellee purchased the property itself at the foreclosure sale, paying $70,000 for the first parcel, $95,000 for the second, and $64,000 for the three-quarter interest in the third parcel. A confirmation hearing was held on September 1, 1988, concerning only the sale of the third parcel, following which the superior court confirmed the sale. Held:

Decided July 3, 1989

Rehearing denied July 18, 1989

Duffy & Feemster, Dwight T. Feemster, for appellants.

1. The appellants contend that the trial court erred in failing to consider a recent offer to purchase the property in its determination of the fair market value of the subject property. Smith testified that prior to the foreclosure proceedings he had rejected an offer to lease the property for one year with an option to purchase it for $130,000, but the trial court indicated that a mere offer does not constitute proper evidence of value. The trial court ruled correctly. Jones v. Smith, 206 Ga. 162 (6) (56 SE2d 462) (1949).

2. Prior to the foreclosure proceedings, the appellants had arranged with another bank for a loan of $90,000 to release the security interest on the subject property, but the appellee rejected that proposal, primarily because the security interest it held concerned the three parcels together and it had not sufficiently determined at that time the value of the individual properties. The trial court also properly disregarded this evidence as an indication of the market value of the property. Jones v. Smith, supra.

3. Two appraisals of the subject property were before the trial court. One appraiser testifying on behalf of the appellee indicated that the market value of a fee simple interest of the entire parcel would be $100,000. A three-quarter interest valued at $75,000 would further be discounted by 15 percent for a margin of profit risk due to the other quarter interest in the property being held by a minor. Another appraiser, testifying on behalf of the appellants, however, valued the fee simple interest for the entire parcel at $153,000, discounted to $138,000 due to soft market conditions; the three-quarter interest thus would be $104,000.

“ ‘ “In confirmation proceedings, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. He hears the evidence and his findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them . . . What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the trial court is the judge of the credibility of the witnesses and of the weight to be given the evidence.” [Cit.]’ ” Gunnells v. Crump, 172 Ga. App. 607, 608 (323 SE2d 903) (1984). In this case, the trial court accepted one appraiser’s opinion over another’s, and we will not disturb that decision.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Kathleen Horne, Christopher E. Klein, for appellee.


text:
    A89A1414.
    KAPPELMEIER v. AMOCO FABRICS et al.
    (385 SE2d 2)
   Deen, Presiding Judge.

The appellant, Gottfried Kappelmeier, originally sued the appel-lees in the United States District Court for the Northern District of Georgia, asserting claims for breach of contract, negligence, and restraint of trade. Kappelmeier moved for leave to voluntarily dismiss the federal suit without prejudice, and the district court granted that motion subject to the condition that before he could reassert the claims brought in that action, or assert any claims arising out of the same facts, in that court or any other court, Kappelmeier had to pay the attorney fees incurred by the defendants in the federal action. Kappelmeier subsequently commenced this action in the state court, asserting the same claim and based on the same facts, without having paid the attorney fees incurred by the appellees in defending the federal suit, and the trial court dismissed the action because of that failure. This appeal followed. Held:

OCGA § 9-11-41 (d) provides that “[i]f a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.” Generally, such payment of costs is a jurisdictional precondition to the filing of a new suit, and the failure to do so makes dismissal or summary judgment for the defendant appropriate. Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). See also Cox v. Fillingim, 184 Ga. App. 205 (361 SE2d 65) (1987).

Kappelmeier contends that attorney fees are not “costs,” thus rendering OCGA § 9-11-41 (d) inapposite. “The general rule is that attorney fees are not included in the term ‘costs’ or ‘expenses’ in the absence of some statutory provision, rule of court, or by contract of the parties. 20 AmJur2d 58, Costs, § 72.” Bowers v. Fulton County, 227 Ga. 814, 816 (183 SE2d 347) (1971). See also Allied Prods. Co. v. Green, 175 Ga. App. 802 (334 SE2d 389) (1985). Under Fed. R. Civ. P. Rule 41 (a), the district court was authorized to condition the grant of Kappelmeier’s motion for voluntary dismissal without prejudice upon Kappelmeier’s paying the defendants’ attorney fees prior to refiling the action in any court. In so conditioning the voluntary dismissal, of Kappelmeier’s federal suit, the district court, in effect, by use of that rule made payment of the defendants’ attorney fees part of the “costs.” For purposes of Rule 41 (a), “[c]osts may include all litigation-related expenses incurred by the defendant, including reasonable attorneys’ fees.” McCants v. Ford Motor Co., 781 F2d 855, 860 (11th Cir. 1986). Since it was undisputed that Kappelmeier had not paid any of the defendants’ attorney fees from the prior federal suit, the trial court did not err in dismissing his present state court action.

Decided July 3, 1989

Rehearing denied July 18, 1989

Gottfried Kappelmeier, pro se.

Long, Weinberg, Ansley & Wheeler, Dan B. Wingate, for appel-lees.

Kappelmeier also contends that dismissal was inappropriate because the federal district court’s order did not limit his liability for attorney fees to the amount which was for work that would not be useful in the defense of a subsequent suit. “Where a subsequent similar suit between the parties is contemplated, expenses awarded might be limited to those incurred in discovering information and researching and pressing legal arguments that will not be useful in the later suit.” McCants v. Ford Motor Co., supra at 860. See also Cauley v. Wilson, 754 F2d 769 (7th Cir. 1985). However, Kappelmeier sought no appeal from the district court’s non-limited order, and this court cannot modify it.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Beasley, Judge.

text:
    A89A0037.
    BUFFINGTON et al. v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY.
    (384 SE2d 873)
   Beasley, Judge.

The relevant facts in this appeal from a declaratory judgment order are undisputed. In March 1987, Buffington renewed his automobile insurance policy with State Automobile Mutual Insurance Company for a six-month period from March 29, 1987, until September 29. The policy covered Buffington’s Oldsmobile and his wife’s Cadillac. Before the inception of the renewal period, Buffington added coverage for a pickup truck driven by his sixteen-year-old son Brian. The additional premium for the truck was not included in the premium paid for the six-month renewal.

In April, Brian and Buffington’s stepbrother purchased a Bronco. On April 23, without Buffington’s knowledge and consent, Brian called Norton-West, the local agency handling State Auto insurance, and requested that the Bronco be added to his father’s policy. It was added, including collision coverage which was not on the other vehicles.

On May 1, State Auto sent Buffington an amended declarations page showing a breakdown of coverage and premiums on the four vehicles and a statement of account showing a prior balance due of $68 and an additional premium of $507, for a total of $575 payable upon receipt. State Auto sent Buffington a notice with an issue date of May 24, stating: “We have not received the additional premium of $575.00 due on this automobile insurance policy. Unless your payment is received by 6-18-87, your policy will be cancelled effective 6-18-87. Prompt payment will insure continuous coverage.”

At Buffington’s request, on June 16, the Bronco was removed from his policy. By notice dated June 20, State Auto notified Buffing-ton: “Since we have not received the additional premium due on this automobile policy, your policy has been cancelled 6-18-87. Please contact your agent if you still desire coverage.”

On June 20, Brian, while driving his mother’s Cadillac, had a collision with the Dellingers. On June 22, Norton-West received a check dated June 18 for $350 from Brian and forwarded the check to State Auto. On July 3, State Auto, via the agent, sent Buffington a refund premium check for $52 and returned Brian’s personal check for $350 stating that it was received by the company after cancellation.

The Dellingers filed suit against Buffington and Brian for personal injuries and loss of consortium allegedly sustained because of the collision with Brian. State Auto filed a petition for declaratory judgment seeking a declaration that no coverage existed under Buff-ington’s policy as a result of any claims arising out of the collision with the Dellingers and therefore State Auto had no duty to defend Buffington and Brian in the Dellingers’ suit or to pay any claims or judgments arising from the collision.

After consideration of the record, which included the depositions of Mr. and Mrs. Buffington and Brian, and after an untranscribed evidentiary hearing, the trial court issued an order concluding that no issues remained for jury determination. It ruled that State Auto owed no duty to defend Buffington and Brian in the Dellingers’ suits, or to satisfy in whole or in part any judgment, or to pay any claims or benefits as a result of the June 20 collision, since this was subsequent to the date coverage was cancelled due to nonpayment of premium.

Buffington, Brian, and Georgia Farm Bureau Mutual Insurance Company, the Dellingers’ uninsured motorist carrier, appealed on three bases of error: (1) A minor child without the knowledge, consent or subsequent ratification of his actions by his parent, does not have authority to cancel his parent’s existing insurance policy and contract on that parent’s behalf for the issuance of a new or modified policy adding another motor vehicle and collision coverage; (2) procurement of additional coverage on the Bronco did not, without mutual agreement of the parties, authorize the cancellation of the existing coverage on the three other vehicles so as to bind these vehicles to a cancellation of insurance for nonpayment of the additional premium on the Bronco; (3) in that the unauthorized coverage of the Bronco could not be charged to Buffington and Buffington’s premiums were paid up past the June 18 date, so a thirty-day notice of cancellation was required under then OCGA § 33-24-45 (d) (now 33-24-44 (b)).

Decided June 22, 1989

Rehearing denied July 19, 1989

Roland H. Stroberg, Deal & Jarrará, J. Nathan Deal, for appellants.

.James E. Brim III, Douglas E. Smith, for appellee.

These arguments fail. Appellants mischaracterize the initial result of Brian’s actions. The minor’s request that the Bronco be added to the existing coverage did not cancel the policy but rather modified it and thus increased the premium obligation. Brian was a named insured under the policy. His minority in and of itself did not prohibit Brian from contracting insurance. See OCGA § 33-24-5. Although Brian’s actions in requesting that the Bronco be added to the existing policy may have been unauthorized by his parents, they were not unauthorized under the law or under the policy itself. Even if Brian’s actions were contractually and legally unauthorized so that the policy should not have been modified to provide coverage for the Bronco and require a premium increase, coverage on all the vehicles was can-celled because of nonpayment of premiums which included an amount due on the truck. That nonpayment affected the coverage of the Cadillac, too.

Thus, thirty-day notice was not required. OCGA § 33-24-44 (b). Moreover, the notice afforded on May 24 and June 20 complied with the ten-day mandate of OCGA § 33-24-44 (b). Compare Pennsylvania Nat. &c. Ins. Co. v. Person, 164 Ga. App. 488 (297 SE2d 80) (1982) and Pennsylvania Nat. &c. Ins. Co. v. Person, 164 Ga. App. 755 (297 SE2d 337) (1982).

The trial court’s findings were supported by the evidence and its determination correct. State Auto owed no legal duty to the Buf-fingtons in regard to the Dellingers’ lawsuit because coverage was can-celled for nonpayment of premiums.

Judgment affirmed.

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


text:
    A89A0210.
    LEDBETTER et al. v. CANNON.
    (384 SE2d 875)
   Beasley, Judge.

We granted the Commissioner of the Department of Human Resources, the Director of the Division of Mental Health, and the Superintendent of the Georgia Regional Hospital at Atlanta interlocutory appeal from the denial of their motion to dismiss a not guilty by reason of insanity acquittee’s petition for judicial protection of rights pursuant to OCGA § 37-3-148 (b). We did so in order to address the issue of whether or not the committing court for such a defendant has exclusive jurisdiction to hear the petition when the defendant seeks a modification of treatment involving off-campus privileges.

In 1979, the Superior Court of Fulton County adjudged defendant Cannon not guilty by reason of insanity, OCGA § 17-7-131 (b) (1) (C), of the offense of aggravated assault. Consequently, her care was placed with the Department of Human Resources and in 1981, the c. >urt committed her to involuntary in-patient treatment, and she was confined at Georgia Regional Hospital at Atlanta in DeKalb County, where she has remained. The Fulton court issued four subsequent orders for Cannon’s in-patient commitment, the most recent in 1986.

In January 1987 and again in May 1987, the Director of Forensic Services at Georgia Regional wrote the committing court requesting permission for off-campus privileges for Cannon. On May 14, the court denied the requests by letter.

Pursuant to OCGA §§ 37-3-1 (4) and 37-3-148 (b), Cannon then filed a “Petition for Judicial Protection of Rights” in the Probate Court of DeKalb County, seeking implementation of a service piar which specifically included participation in community-based programs, i.e., off-campus treatment. DHR and the other respondents moved to dismiss the petition on the ground that the DeKalb Probate Court did not have jurisdiction.

The probate court denied the petition without a hearing, agreeing that the Superior Court of Fulton County has exclusive jurisdiction t( determine the issue raised in the petition. This ruling was appealed t( the Superior Court of DeKalb County, which determined that th< probate court had jurisdiction to hear the petition, pursuant to OCG^ § 37-3-148 (b). It concluded that Cannon’s needs for appropriate, in dividualized treatment designed to facilitate her release to a less re strictive setting had to be met as soon as possible and that it wa contrary to specific provisions of state law to withhold needed treat ment pending unnecessary approval by the committing court. The su perior court reversed the order of the probate court, remanded th matter for a hearing within thirty days, and instructed the probat court to require individualized treatment consistent with Cannon’ needs and pursuant to a fully developed individualized service pla: including, if clinically appropriate, participation in community-based programs.

DHR filed a second motion to dismiss Cannon’s petition for lack of jurisdiction in the DeKalb Probate Court based on the holding of O’Neal v. State, 185 Ga. App. 838 (365 SE2d 894) (1988). The probate court denied it without consideration because the court was subject to the superior court order. After holding an evidentiary hearing on the petition, the probate court denied it, concluding that Cannon was not being unjustly denied a right or privilege granted by applicable state statutes.

Cannon appealed to the DeKalb Superior Court and DHR filed a motion to dismiss based on the jurisdictional ground. The superior court denied DHR’s motion and certified the denial for immediate review.

1. Whenever a defendant is found not guilty by reason of insanity at the time of commission of the crime, the committing court retains jurisdiction over the acquittee. OCGA § 17-7-131 (d). Our Supreme Court has specifically held that “[t]he superior court, and not mental health professionals, has the responsibility for deciding applications for release under OCGA § 17-7-131. [Cit.]” Butler v. State, 258 Ga. 344, 345 (1) (369 SE2d 252) (1988). In O’Neal, supra, a majority of this court held that “the jurisdiction afforded committing courts pursuant to OCGA § 17-7-131 is not limited to the rendition of the initial commitment order and final release decision, but also encompasses the authority to render all other decisions necessary for the treatment of the insanity acquittee as well as those decisions necessary to ensure both the acquittee’s safety and the safety of the community.” Id. at 840.

The committing court has a broad jurisdiction over the not guilty by reason of insanity acquittee. Therefore, the Superior Court of Fulton County had authority to consider Cannon’s requests for off-campus treatment. The question is whether or not its authority was exclusive.

2. OCGA § 37-3-148 (b) permits a patient or his representative to file a petition alleging that the patient is being unjustly denied a right or privilege granted by Chapter 3 of Title 37 or that a procedure authorized by that chapter is being abused. The subsection provides that the petition be filed in the “appropriate court” and that such court will have the authority to conduct a judicial inquiry and to issue appropriate orders to correct any abuse.

While the general definitions in Chapter 3 provide that “court” means “[i]n the case of an individual who is 17 years of age or older, the probate court of the county of residence of the patient or the county in which such patient is found,” OCGA § 37-3-1 (4) (A), subsection (b) of OCGA § 37-3-148 is silent as to the appropriate court of inquiry.

In contrast, subsection (a) of the statute specifically considers the committing court in the situation of a petition for a writ of habeas corpus by or on behalf of a not guilty by reason of insanity acquittee. It provides, inter alia, that a copy of the petition along with proper certificate of service must be served upon the presiding judge of the court ordering the detention.

The legislature clearly intended the committing court to be a continuing monitor in the case of the not guilty by reason of insanity defendant. The specific reference in subsection (a) of notice to the committing court acknowledges and accounts for this as well as the common circumstance of a writ of habeas corpus being brought before a court other than the one ordering the detention. Although it does not involve the writ of habeas corpus, to interpret subsection (b) of the same statute as allowing any forum other than the committing court as the “appropriate” one in the situation of a not guilty by reason of insanity acquittee would be to allow the adjudication of the petition without even notice to the very forum responsible for the ultimate determinations of detention and release.

We view a statute “so as to make all its parts harmonize and to give a sensible and intelligent effect to each part. It is not presumed that the legislature intended that any part would be without meaning.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (2) (219 SE2d 115) (1975), answers to certified questions applied, 136 Ga. App. 781 (222 SE2d 209) (1975). In addition, “ ‘[i]t is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cit.] ‘The construction must square with common sense and sound reasoning.’ [Cit.]” State v. Mulkey, 252 Ga. 201, 204 (2) (312 SE2d 601) (1984), on remand, 170 Ga. App. 629 (318 SE2d 838) (1984).

Investing the committing court with exclusive jurisdiction in the case of a not guilty by reason of insanity acquittee’s petition under OCGA § 37-3-148 (b) implements the legislative intent and better serves both the interests of the acquittee and the public by providing one continuing, consistent, and informed body to monitor, assess and act on changes in circumstances of the acquittee. Such a one is not a civil acquittee but a person who is in custody because of his or her special and particular status as an acquittee of a criminal charge. This status does not change just because he or she is seeking a change in treatment rather than full release.

We conclude that the committing court is the only appropriate court to entertain a petition under OCGA § 37-3-148 (b) in the case oí a defendant not guilty by reason of insanity. Therefore, as it originally recognized, the probate court was without authority to consider Cannon’s petition. The reviewing superior court erred in refusing to dismiss the appeal from the probate court for lack of jurisdiction.

Decided June 23, 1989

Rehearing denied July 19, 1989.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, William C. Joy, Senior Assistant Attorney General, B. Patricia Downing, Assistant Attorney General, for appellants.

Susan C. Jamieson, Katherine E. Bissell, for appellee.

Judgment reversed.

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