text:
    A91A1358.
    DEPARTMENT OF HUMAN RESOURCES v. CORBIN.
    (413 SE2d 484)
   Andrews, Judge.

The Georgia Department of Human Resources (DHR) brought an action against Corbin pursuant to OCGA § 19-11-1 et seq. seeking to recover unreimbursed public assistance benefits paid on behalf of a minor alleged to be Corbin’s child. Corbin denied that he was the child’s father. DHR appeals from a jury verdict finding that Corbin was not the child’s father.

DHR claims the trial court erroneously excluded from evidence the report showing the paternity blood test results and testimony from the department’s expert witness as to his conclusions based on the excluded document. Corbin objected that the proffered report and testimony were hearsay because the expert did not personally conduct the testing, and the report contained the conclusions of others who did the testing and were not before the court.

If the laboratory report at issue contains the opinions or conclusions of a third party not before the court, those portions of the report are inadmissible hearsay until a proper foundation has been laid, “i.e., the person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.” Spivey v. State, 184 Ga. App. 118, 119 (361 SE2d 9) (1987); Moody v. State, 244 Ga. 247, 249 (260 SE2d 11) (1979).

DHR’s contentions that this evidence was admissible as business records or under the authority of OCGA § 19-7-46 are without merit. Even if a proper foundation was laid to introduce the report as a business record, it was still not admissible as a whole if it contained the opinions or conclusions of a third party not before the court. Hurt v. State, 239 Ga. 665, 673 (238 SE2d 542) (1977). OCGA § 19-7-46 (a) provides that: “The results of medical tests and comparisons ordered by the court, including the statistical likelihood of the alleged parent’s parentage, if available, shall be admitted in evidence when offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person.” This statute sanctions admission of the results of scientifically reliable testing conducted by qualified persons. It does not, as DHR contends, eliminate or modify the hearsay rule with respect to admission of such tests results.

The record reflects that at least seven different tests were conducted on Corbin’s blood sample by Roche Biomedical Laboratories. The results of the tests were combined to yield the probability of paternity. The actual testing was done by technicians at the laboratory who operate under the direction of a staff of associate directors. DHR’s expert immunologist was one of the associate directors. It is unclear from the record to what extent, if any, DHR’s expert or other associate directors personally supervise the actual testing. Evidence showed the laboratory handled approximately 400 specimens a day, and DHR’s expert testified that “at some point in the actual collection of the data we are involved in the interpretation and analysis, and I do not remember names of all the parties that I have been involved with that way. The record does not establish that DHR’s expert obtained personal knowledge by supervising the actual testing done on Corbin’s specimen.

Decided November 14, 1991 —

Reconsideration denied November 21, 1991 —

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Walker, Hulbert, Gray & Byrd, Charles W. Byrd, for appellee.

Apparently, only the report combining the results of the individual tests was offered as documentary evidence by DHR. Since the results of the individual tests are not part of the record, we are unable to determine if the test results from which the report was compiled contained the opinions or conclusions of third parties who conducted the tests, or whether the individual tests simply yielded information not subject to a hearsay objection from which DHR’s expert reached his own conclusions and opinions.

It is clear that the report at issue was a compilation of the individual test results and contained a conclusion with respect to the issue of Corbin’s paternity. It is also clear that DHR’s expert also based his proffered testimony on the results of the individual tests. Accordingly, to address the errors complained of it is necessary to review the contents of the individual test results. “The burden is on the appellant to show error by the record, and when a portion of the evidence . . . bearing upon the issues raised by the enumerations of error, is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cits.]” Morris v. Hodge, 152 Ga. App. 815, 816-817 (264 SE2d 482) (1979).

Judgment affirmed.

Sognier, C. J., concurs, and McMurray, P. J., concurs in judgment only.


source: Caselaw Access Project

author: Judge Arnold Shulman.

license: Public Domain

text:
    A91A1370.
    ROSS v. THE STATE.
    (413 SE2d 207)
   Judge Arnold Shulman.

The appellant, Ricky Ross, was found guilty of three counts of aggravated child molestation based on an indictment alleging that he had fondled the sexual organs of his then three-and-a-half-year-old daughter causing vaginal tears and scarring and had committed both oral and anal sodomy upon her, all with the intent to arouse and satisfy his sexual desires.

The child was brought to a hospital emergency room by her mother, her grandmother, and the appellant on January 7, 1990, complaining of pain on urination. The examining physician testified that the child was hysterical and had to be restrained in order for the examination to be conducted. He observed that her vaginal opening was enlarged, swollen and inflamed, with resultant tearing and scarring, and that her anal opening was also swollen and inflamed. Based on these observations and on laboratory test results indicating that she had a vaginal infection of a type which is normally sexually transmitted, the physician concluded that the child had been sexually abused.

As a result of the physician’s findings, the Director of the Baldwin County Rape Crisis Center was called to the hospital to interview the child. The child was initially reluctant to talk but eventually responded to the director’s entreaty that she reveal whether anyone had touched her “in places of your body that you should not be touched,” by stating: “Rick, my daddy. But, I can’t tell you.” Asked to show where her father had touched her, the child first pointed to her vagina and then rolled over onto her stomach and pointed to her rectum.

An investigator from the sheriff’s department was summoned to the hospital, and the child repeated these responses in his presence and in the presence of a third witness, who was both a volunteer for the Rape Crisis Center and a police officer. The investigator asked the child on two or three occasions if her father had put anything in her mouth, and each time the child responded by coughing and gagging. Subsequently, as the child was being brought back to the examining room from a bathroom located across the hall, she saw the appellant standing in the hallway and began screaming and crying. Asked to explain this reaction, she responded that she was “scared of Rick” and that he had told her to “be quiet and not to tell anyone.”

During the next few days, the child began weekly counseling sessions at the Oconee Child & Adolescent Center. For the first few months, she refused all invitations by her therapist to talk about the events of which she had spoken at the hospital; however, during a group therapy session which took place in April of 1990, she spontaneously approached another girl who was attempting to demonstrate through the use of a pair of anatomically correct male and female dolls an experience she had undergone, took the dolls away from her, exclaimed, “No, that’s not what happened,” and proceeded to demonstrate anal and vaginal intercourse through the use of the dolls. During the course of this demonstration, she slapped the female doll and told it to shut up, and she afterwards ventilated anger towards the male doll, which she referred to as “Ricky,” by kicking it and throwing it around the room.

1. The appellant contends that the evidence introduced at trial conclusively established that the abuse had taken place at a time when he did not have access to the child and therefore could not possibly have committed it. The child’s mother testified that she and the appellant had lived together in the appellant’s mother’s apartment from September of 1989 until shortly before Christmas of 1989, when she learned that the appellant was seeing another woman and moved out. The child had not lived with her parents while they were living in the appellant’s mother’s home but had resided with the mother’s parents. From the time the mother and father separated until the weekend of January 7, 1990, when the emergency room visit took place, the appellant saw the child on only two occasions, and both those visits took place in the presence of the mother and her parents. Although the appellant unquestionably had the opportunity to commit the offenses during the 24-hour period immediately preceding the emergency room visit, he contends that the testimony of the emergency room physician conclusively negated the possibility that the abuse had occurred during that period.

The emergency room physician’s testimony in this regard was in fact somewhat ambiguous and equivocal. He initially testified that the child’s injuries did not appear to have been “recent,” in that there was no “active bleeding,” but appeared to have occurred “within weeks” of his examination. However, he then testified as follows: “Q. You can’t say if it had been within, say the past twenty-four hours or within the past week, just that it had been within weeks? A. Right. Q. But, it had not just occurred? A. No.” Later, on cross-examination, he appeared to reaffirm his original testimony, stating: “[I]f it’s recent, like within twenty-four hours, you can even see the bleeding and active injury. But, this suggested more of a few weeks.” However, he thereafter testified as follows: “Q. Okay. Can you give us an idea of what the earliest could have been? Could it have been within twenty-four hours? A. No. Q. Could it have been within forty-eight hours? A. No. I can not tell. Q. Okay. When you say, no, you mean it was not within twenty-four hours, or. ... A. I can not tell. Q. How long would you expect the bleeding to still be present inside the vagina? A. A few hours.” (Emphasis supplied.)

This testimony clearly did not preclude a finding by the jury that the abuse had occurred within the 24-hour period immediately before the child was brought to the hospital, nor, for that matter, did it preclude a finding that it had occurred more than two weeks prior to that, i.e., while the child’s mother and the appellant were still living together. (Although the child had not lived with her parents while they were living with the appellant’s mother, the evidence did not establish that he had no access to her during that period.) Construed in the light most favorable to the verdict, the evidence as a whole was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the three offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in allowing the investigator from the sheriff’s department to testify that while talking with the child at the hospital, he was “impressed” with her ability to express herself. The appellant’s counsel objected to this testimony on the ground that it amounted to “vouching” for the child. However, the statement clearly was not an opinion as to the child’s credibility but was simply an observation by the witness that he had found the child to be articulate. In any event, this witness had previously offered identical testimony without objection, and the appellant made no motion to strike that testimony. “Whether or not certain testimony was admissible, its admission was not error where substantially the same evidence was introduced without objection.” Massey v. State, 220 Ga. 883, 891 (4) (142 SE2d 832) (1965).

3. While cross-examining the appellant about his activities on the night before the child was brought to the hospital, the state’s attorney asked him if he had gone to his mother’s house after leaving his girl friend’s house at about 3:30 or 4:00 a.m. The appellant replied: “No. I left (there) and went to my sister’s house.” The state’s attorney thereupon asked him if he had shared this information with the investigator from the sheriff’s department, and the appellant, responded in the affirmative. The state’s attorney then asked him, “Would you be very surprised to find out that he doesn’t think you told him that?” The appellant’s attorney objected at this point on the ground that this was “a question that is not in evidence.” The objection was overruled, and the appellant complains on appeal that the court thereby allowed the state “to put facts not properly in evidence before the jury.” However, in his subsequent answer to the question, the appellant conceded that he “probably didn’t” relate the information in question to the investigator. Under these circumstances, the state had no reason to recall the investigator to establish this fact, .and the appellant could not have been prejudiced by its failure to do so.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.

Decided October 28, 1991 —

Reconsideration denied November 21, 1991.

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.


text:
    A91A1400.
    HOYT’S CYCLE STORE, INC. v. AMERICAN SUZUKI MOTOR CORPORATION.
    (413 SE2d 455)
   Judge Arnold Shulman.

The appellant sued the appellee seeking damages for the alleged wrongful termination of a franchise agreement. It brings this appeal from an order of the trial court granting partial summary judgment to the appellee on the issue of whether the relationship between the parties was governed by the Georgia Motor Vehicle Franchise Practices Act (OCGA § 10-1-620 et seq.).

In January of 1984, the appellant applied to the appellee for a dealership designation, submitting to it, as a part of that process, a packet containing, among other things, a document entitled “Suzuki Dealer Policy Acknowledgment” (“the Acknowledgment”). This document was signed by the principals of the appellant and then signed and dated by the appellee’s district sales manager. Shortly thereafter, the appellee forwarded to the appellant an Authorized Suzuki Motorcycle Dealer Agreement (“Dealer Agreement”) which the appellant did not execute and return. In March of 1984, the appellee forwarded a second Dealer Agreement to the appellant; and again the appellant failed to execute the Dealer Agreement and return a copy to the appellee as requested. Nonetheless, according to undisputed evidence in the record, it was understood by the parties that from and after March of 1984, the appellant had the right to stock the appellee’s motor vehicle line and to participate in its dealer programs; and the appellant did in fact stock and sell motorcycles and related products which it bought from the appellee.

The appellee’s district sales manager thereafter contacted the appellant by phone on a regular basis and visited its premises three times annually. On February 21, 1989, the appellee notified the appellant in writing that it was terminating what it referred to as “your Suzuki Dealer Agreement” for failure to maintain clean and sightly premises, failure to adequately stock Suzuki motor vehicles and parts, inadequate training of sales personnel, sales volumes below levels comparable to other similarly situated Suzuki dealers, and failure to advertise and promote the appellee’s products. The appellant sued the appellee, alleging breach of contract and also asserting a statutory claim for actual and punitive damages for wrongful termination of a franchise agreement pursuant to the Georgia Motor Vehicle Franchise Practices Act, OCGA § 10-1-651. The trial court denied a motion for summary judgment filed by the appellant and granted partial summary judgment to the appellee on the issues of whether the agreement which existed between the parties constituted a franchise agreement within the contemplation of the Act and whether their relationship was otherwise governed by or subject to the provisions of the Act. However, the trial court expressly reserved a ruling on whether the appellant was entitled to seek damages under traditional contract principles.

1. The appellant contends that the trial court erred in finding that the Acknowledgment was not a franchise within the meaning of the Act. OCGA § 10-1-622 (6) defines “franchise” as follows: “[T]he written agreement or contract between any franchisor and any dealer which purports to fix the legal rights and liabilities of the parties to such agreement or contract and pursuant to which the dealer purchases and resells motor vehicles or leases or rents the dealership facilities.” The Acknowledgment, the only document executed by the parties, merely sets forth the appellee’s policies regarding sales, parts, advertising, credit, shipments, and service. While extensive in scope, it does not address any issues concerning the legal rights and liabilities of the parties nor does it include any of the other numerous and detailed provisions normally found in dealer franchises. See Reliable Volkswagen Sales &c. Co. v. World-Wide Auto. Corp., 216 FSupp. 141 (D.N.J. 1963). The document expressly contemplates execution by a “dealer applicant” and provides in italics above the dealer applicant’s signature that “[i]n signing this form the dealer applicant . . . acknowledges his agreement with the above policies. This Suzuki dealer policy acknowledgment will be superseded by the Suzuki dealer agreement.” The appellant does not offer any explanation as to why it did not execute the twice-proffered Dealer Agreement but simply insists that the parties intended for the Acknowledgment to serve as a franchise agreement, as evidenced by their course of dealing.

There are no Georgia cases dealing with this issue as it relates to the Act; however, Reliable Volkswagen, supra, provides a useful analogy. In that case, the plaintiff, which had acted as an automobile dealer and was considered as such by the manufacturer, conceded that it had never entered into a formal franchise agreement such as is generally in use in the automobile industry. Nonetheless, it sought relief against the manufacturer under the Automobile Dealer Franchise Act, 15 USCA § 1221 et seq. (a/k/a the “Dealers’ Day in Court Act”), based on allegations that a series of communications and other writings between the parties were tantamount to a franchise agreement. (The definition of “franchise” in the federal law is very similar to the definition set forth in OCGA § 10-1-622 (6) and includes requirements that the agreement be written and that it “purport ] to fix the legal rights and liabilities of the parties. . . .” 15 USCA § 1221 (b).) The district court ruled that the plaintiff had no cause of action under the federal statute in the absence of a franchise agreement, stating: “Were this a common law action, the plaintiff might be able to establish, by proper evidence, either a contract or an estoppel to deny a contract upon which it could rely. However, we are dealing here with a statutory cause of action, and as such the plaintiff must show compliance with the prerequisites to the maintenance thereof, established therein. A sine qua non to recovery is proof of a written contract which ‘purports to fix the legal rights and liabilities of the parties. . . .’ ” Reliable Volkswagen, supra at 144.

Decided October 28, 1991 —

Reconsideration denied November 21, 1991

Steven Montalto & Associates, Steven Montalto, David J. Salome, for appellant.

Gurley, P.A., James B. Gurley, for appellee.

For the same reasons, we affirm the trial court’s decision. The Acknowledgment does not meet the definitional requirements of the Act, and neither the intent of the parties nor their acknowledged course of conduct will create a statutory franchise agreement between them where none was executed.

2. The appellant further contends that the trial court erred in ruling that in the absence of a franchise agreement, the relationship between itself and the appellee was not governed by the Act. The appellant urges that it and the appellee fall within the statutory definitions of “dealer” and “franchisor,” respectively, thus bringing their relationship within the purview of the Act. OCGA § 10-1-622 (1) and (7). We disagree. Having neglected to formalize the arrangement by entering into a franchise agreement as that term is defined by the statute, the appellant cannot claim that a “franchisor/dealer” relationship exists between them within the contemplation of the Act so as to permit a claim for damages thereunder.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1919.
    A91A1920.
    WADE et al. v. POLYTECH INDUSTRIES, INC. POLYTECH INDUSTRIES, INC. v. WADE.
    (413 SE2d 468)
   Birdsong, Presiding Judge.

Appellants/plaintiffs, Malvin R. Wade and Pamela J. Wade, husband and wife, appeal the order of the superior court granting directed verdict in favor of appellee/defendant, Polytech Industries, Inc. (Polytech). Polytech cross-appeals the ruling of the trial court granting directed verdict in favor of Malvin R. Wade as to Polytech’s counterclaim against him.

Appellants were seriously injured in an airplane crash during a sales demonstration flight. Appellant, Malvin Wade, who was a Delta airline pilot with about 17 years service and over 11,000 logged flying hours of which 600 were obtained flying small airplanes, was piloting the airplane when it crashed. The airplane was owned by appellee Polytech whose vice-president, Gerald (Jerry) Cook, apparently had arranged the demonstration flight in anticipation that appellants would buy the craft. Both appellants were looking at appellee’s craft, as they did not own a plane and were thinking about buying one. Pamela Wade, however, was going to let her husband make the decision whether to buy the plane, and it was her husband who, with Jerry Cook’s knowledge, invited her (in the literal sense of the word) on the flight. Pamela Wade admitted in court she was relying on her husband’s judgment “as to whether [she] should fly in [the] plane and not relying upon anything that anybody at Polytech said or didn’t say.” A friend, Dr. Leonard Pace, who also was a pilot was invited by and did accompany appellants on the flight. Dr. Pace has an air transport license and a private pilot’s license with instrument rating. He had flown 250-300 hours at the time of the incident; and he had more recent experience in flying small airplanes than Malvin Wade.

Jerry Cook flew the plane to the Greensboro airport where appellants and Pace were waiting. It landed without incident. The four people climbed into the plane with Dr. Pace and Pamela Wade sitting in the back seat, with Malvin Wade and Jerry Cook in the front left and right seats, respectively. At this point, a “four star” and “taxi” checklists were performed. Although the plane was equipped with dual controls so that either Malvin Wade or Jerry Cook could fly it from their seats inside the craft, Malvin Wade actually taxied the plane to the end of the runway and thereafter piloted it. But Jerry Cook, at various intervals, “helped fly [the] airplane” by setting the flaps and helping Malvin Wade watch the instruments. At this point, Pamela Wade was checking out the upholstery and windows of the plane while Malvin Wade was conducting certain pre-flight checks. Before takeoff, a total engine run-up was performed, and takeoff was accomplished uneventfully. Prior to landing, Wade informed Cook since he had not previously landed this plane to “stay with me and if anything at all goes wrong, you take the airplane.” Wade and Dr. Pace testified that Cook never disclosed prior to the accident the plane was past its annual inspection (the fact it was past its annual inspection was not disputed) and that they would not have flown in the aircraft had they known this fact. Appellee contends they told Wade the plane was out of annual. Wade denied being told this fact.

The type of airplane being flown has a carburetor heat knob, which opens and closes a baffle to a hood around the carburetor thereby causing an increase or decrease in engine heat. This knob needs to be depressed or closed on takeoff in order to prevent a significant loss of engine power — approximated at 15-20 percent or more. When landing, a plane usually has flaps down and carburetor heat on. Upon preparing for the second takeoff, Malvin Wade was unable to close the carburetor heat knob which he had opened on landing. Jerry Cook assumed the task of depressing the knob into proper closing position, and in the process shoved it shut with enough force to cause his hand to slip from the knob and break a glass gauge on the instrument panel. The movement indicated that the cable was stuck and gave way suddenly. Malvin Wade testified that at this point Jerry Cook declared, “the carburetor heat knob is back in. It’s okay.” (Emphasis supplied.) Everyone was satisfied the plane was ready for a second takeoff, and without benefit of a second run-up, which neither Jerry Cook nor Dr. Pace suggested, Malvin Wade attempted a second takeoff. The plane obtained “normal lift-off speed,” normal RPMs, and no absence of power was detected as the plane went down the runway for takeoff; and as it started to climb everything was “normal” for the first few seconds. Nothing on the instrument panel would indicate a malfunction of the carburetor heat assembly. Suddenly it became apparent something was wrong, although the throttle, mixture control, and carburetor heat cable all appeared to be properly set. Malvin Wade testified he then shouted: “Jerry, what the hell is wrong with this thing . . . you know it better than I do. Do you want it.” Cook, however, did not assume the controls or do anything to assist Wade who had no choice but to continue to fly the plane. Wade instinctively nosed the plane down to keep the engine from stalling, but the plane lost air speed and could not maintain altitude, hit a tree, and crashed to the ground.

At trial, the Wades called as an expert witness, Mr. Clarence Wise, who in addition to practical experience and education as an aircraft mechanic, flight engineer, an aircraft sheet metal repairman, an airframe and power plant mechanic, and an FAA inspector, is licensed as a commercial pilot and has investigated over 350 aircraft accidents. The trial court duly recognized Mr. Wise as an expert in the field of airplane crash investigation and in the field of avionics generally, in-eluding pilot. Wise opined, inter alia, and without objection that the crash was caused by a carburetor air temperature rod which allowed the quick disconnect coupling to ride up and pop off and the rod went in without moving the baffle in the air box assembly, and that malfunction of the carburetor air box was due to lack of proper maintenance. He also testified that the problem would have been discovered had a timely annual inspection been performed; and annual inspection would have revealed the rubbing or “[t]he hanging up of the carburetor air door; and lack of an annual inspection and proper maintenance was a cause of the airplane crash.” In addition, Wise testified that once the carburetor air temperature rod assembly broke and carburetor heat remained on it was not “pilot error” for Wade to fail to recognize that condition. And, while an engine run-up would reveal if carburetor heat was not working properly, a run-up is not conducted before every takeoff.

Dr. Pace testified, inter alia, that he had been taught that you do not have to do a full engine run-up if you do not shut the engine off, but he would assume that such a run-up should be conducted if something out of the ordinary occurs. Nevertheless, Dr. Pace would have done nothing different that Malvin Wade did on this flight.

Although Wade admitted that a run-up should be conducted if any problems are encountered or anything unusual occurs, he immediately clarified this answer to reflect that a run-up would be required if you have a problem “big enough or seemingly big enough” to warrant such action. Wade did not believe such a problem existed as Jerry Cook, “a qualified pilot” who has maybe 600 hours in that airplane and was the most experienced of the three pilots flying that plane, told him he would take care of the knob. Thereafter, Cook told Wade the heat knob was back in okay; Wade had no reason whatsoever to doubt this statement, as Cook knew the plane better than he did and the knob was back in proper off position. If Wade had doubted Cook’s statement, he would have run-up the engine. Wade conceded that in hindsight, although not normally done, if a run-up had been conducted before the second takeoff the crash might have been avoided. Nevertheless, he repeatedly opined that a second run-up was not required and unequivocally stated that Jerry Cook never told him to conduct another run-up. Held:

1. A directed verdict is appropriate if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a); All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 191 (1) (355 SE2d 465). A trial court cannot direct a verdict merely because he believes the strength or weight of the evidence lies on one side, or because he might grant a new trial if a verdict should be returned which he thinks is contrary to a preponderarme of the evidence. Findley v. McDaniel, 158 Ga. App. 445 (280 SE2d 858). And a motion for directed verdict cannot be granted if there is any evidence creating a material issue of fact. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 831 (2) (386 SE2d 709).

In determining whether the granting of a motion for directed verdict is supported adequately by the record, we will not consider statements of witness elicited in an out-of-court hearing that were not subsequently elicited and, thus, not “introduced” in the presence of the jury. OCGA § 9-11-50 (a).

2. During the trial court’s consideration of the motion for directed verdict, a discussion ensued as to the theory or theories of liability upon which appellants/plaintiffs had proceeded at trial. At the onset we note that no pretrial order was entered in this case. Moreover, under the Civil Practice Act notice pleading was substituted for issue pleading. See generally OCGA § 9-11-8. While a complaint must give notice sufficient to allow responsive pleading, it need only state a claim and does not have to allege facts sufficient to set forth a cause of action. Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924). Thusly, construing the complaint on its four corners and also in the light most favorable to plaintiffs, we find the complaint put appellee/ defendant Polytech on notice of a claim grounded on at least three separate legal theories: first, that Polytech was liable because it had failed to have the aircraft properly maintained for safe operations; secondly, that the crash was due to the negligent operation of the aircraft (which would per force include the negligent operation of any of the aircraft’s controls, including a carburetor heat control knob) by Jerry Cook, an officer and shareholder of defendant Polytech; and, thirdly, that the crash was due to the negligence of Jerry Cook as pilot in command in directing and assisting the operation of or in operating the aircraft. In this regard, we also note that a proposed pretrial order does reflect that one of appellant/plaintiff’s contentions was asserted as being that “prior to takeoff, the carburetor heat knob stuck and was negligently forced into the dashboard by [Jerry] Cook.”

Further, pleadings may be amended to conform with the evidence at trial. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” OCGA § 9-11-15 (b). “[T]he parties may, by express consent, or by the introduction of evidence without objection, amend the pleadings at will. . . . Implied consent usually is found where one party raises an issue material to the other party’s case, or where [as here] evidence is introduced without objection.” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424); Mortgage Savings Co. v. KKFB Investment Co., 196 Ga. App. 283, 284 (1) (396 SE2d 16). The evidence admitted without objection in this case reveals that one of the several claims litigated by appellants was that their injuries resulted from the airplane crash caused by the negligent act of Jerry Cook, an officer, stockholder, and agent of appellee, in depressing the carburetor heat knob with such force as to break it in a heat-on position but causing the knob to appear to be closed.

3. The testimony is in conflict whether a run-up was required before the second takeoff when the engine of the plane had not been shut off and restarted. In arriving at this conclusion, we have not considered the concession of appellee in its response to request for admissions that: “(Technically, because the engine was not shut off between the Greensboro takeoffs, some might consider the two takeoffs as part of a single flight).”

Except in cases where the evidence is plain, palpable and undisputed, issues of negligence, contributory negligence, comparative negligence, proximate cause, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence and comparative negligence are questions for the jury and are not susceptible of summary adjudication. Thompson v. Crownover, 259 Ga. 126, 129 (5) (381 SE2d 283); Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865); Callaway v. Pickard, 68 Ga. App. 637, 641 (1) (23 SE2d 564); see generally Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 571-574 (398 SE2d 16) (Weltner, J., concurring specially). Moreover, evidence also was conflicting regarding whether the breaking of the instrument panel glass by Jerry Cook when he pushed in the heat control knob was of such an unusual or unique character as to place appellant Malvin Wade on notice that another run-up was required. “It is the jury’s function to draw an inference from the evidence when [as here] more than one inference can be drawn.” Thompson v. Crownover, supra at 130 (6).

Assuming arguendo, that the evidence in this case had established plainly, palpably, and undisputedly that the failure to conduct a run-up was an “intervening act” on the part of Malvin Wade, nevertheless an issue of foreseeability would remain. In Williams v. Grier, 196 Ga. 327, 328 (2a) (26 SE2d 698), it was held that “[a] causal connection between an original act of negligence and injury to another is not broken by the ‘intervening’ act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrong-doer.” (Emphasis supplied.) Accord Coleman v. Atlanta Obstetrics &c., 194 Ga. App. 508 (1) (390 SE2d 856), aff’d 260 Ga. 569, supra; Charles Seago &c. Co. v. Mobile Homes &c., 128 Ga. App. 261, 264 (2) (196 SE2d 346); see Evans-Watson v. Reese, 188 Ga. App. 292, 294 (372 SE2d 675); Union Carbide Corp. v. Holton, 136 Ga. App. 726, 728 (1) (222 SE2d 105); Western &c. R. Co. v. Davis, 116 Ga. App. 831, 836-837 (1 b) (159 SE2d 134). Thus, “[i]f the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failing to guard against it; or the defendant may be negligent only for that reason.” (Emphasis supplied.) Prosser & Keeton On Torts (5th ed.), Proximate Cause, p. 303, § 44. And the risk created by the defendant may include the intervention of the foreseeable negligence of others. Id. at 44, p. 304. In this case, there is evidence in the record that the pilot most familiar with the plane was Jerry Cook, appellant’s agent for the sale of the plane, that it was Jerry Cook who depressed the heat control knob, and that his actions caused the carburetor heat assembly to break as above discussed. There is also evidence that after depressing the heat knob, Jerry Cook announced that it was back in place and that “it’s okay.” Testimony was also given to the effect that second and subsequent engine run-ups are not automatically required between landings when the plane’s engine has not been shut off, absent some unusual event or problem placing the pilot on notice that such action should be undertaken. Whether an incident constitutes such an unusual event or problem is a matter which, as here, is subject to debate among pilots. Under these circumstances, particularly including the evidence that Jerry Cook stated after depressing the carburetor heat knob that it was okay, even if Malvin Wade was required to conduct a run-up and his failure to do so was an “intervening” act, genuine issues of material fact exist from which a jury could find that such failure reasonably could have been anticipated and foreseen, within the meaning of Williams v. Grier, supra. Charles Seago &c. Co., supra at 264; see DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 812 (278 SE2d 712).

In view of the above, we find that the trial court erred in granting directed judgment to appellee. King v. Avtech Aviation, 655 F2d 77 (5th Cir.).

4. It cannot be concluded as a matter of law that the negligence, if any, of Malvin Wade in operating the plane so as to cause the crash to be totally or partially attributable to him would be imputed to his wife. Where a wife is merely accompanying her husband as a guest in a plane being flown by him, and a crash occurs, which might in part be attributable to the negligence of the husband as pilot of the plane, any such negligence on his part is not attributable to the wife. Compare Randall Bros. v. Duckett, 53 Ga. App. 250, 254 (1) (185 SE 394). However, the wife, as a passenger and guest in the plane, cannot close her eyes to known and obvious dangers arising from the acts of the pilot or others therein (Randall Bros., supra) and when negligence on the part of the pilot or others in the plane appears she “ ‘must act as an ordinarily prudent person would act, under the same or similar circumstances’ ” (Freeman v. Martin, 116 Ga. App. 237, 242 (2) (156 SE2d 511)). Nevertheless, an airplane, unlike an automobile, is not the type of vehicle which an untrained person normally would be expected to possess a degree of familiarity regarding either its operation or normal mechanical function. And, whether Malvin Wade’s negligence, if any be found, should be imputed to his wife is a question for jury resolution. Randall Bros., supra.

The question arises whether Pamela Wade, as a passenger in the plane, was an implied invitee of appellee to whom was owed the duty of ordinary care in keeping the plane safe. See generally Lowe v. Atlanta Masonic Temple Co., 79 Ga. App. 575 (1c) (54 SE2d 677). “ ‘An implied invitation is one which is held to be extended by reason of the owner doing something or permitting something to be done which fairly indicates to the person entering that his' entry and use of the property is consistent with the intents and purposes of the owner. . . . An invitation is implied where the entry on the premises is for a purpose which is or is supposed to be beneficial to the owner.’ . . . ‘To come under an implied invitation as distinguished from a mere license, the [wife must have entered the plane] for the benefit, real or supposed, of the owner or occupant, or in a matter of mutual interest, or in the usual course of business, or for the performance of some duty.’ ” (Emphasis supplied.) Anderson v. Cooper, 214 Ga. 164, 168-169 (104 SE2d 90); see Scarborough v. Murray, 124 Ga. App. 30 (1) (183 SE2d 216). The record contains some evidence that appellee’s officer, Jerry Cook, permitted Pamela Wade to enter the plane as a passenger during the demonstration flight, an act which arguably was for the mutual benefit of the Wades and appellee who was trying to sell the aircraft. Consistent with the above authority and these facts, we find that a jury issue exists whether Pamela Wade became an implied invitee of appellee to whom the duty of ordinary care was owed. Compare Davis v. Garden Svcs., 155 Ga. App. 34, 35 (270 SE2d 228). And the question of whether appellee exercised ordinary care as required is a question for the jury. Lowe, supra at 575 (2a), 582.

Additionally and contrary to the views of the trial court, we do not find as controlling, as to any of the above issues, the testimony of Pamela Wade that she was relying on her husband’s judgment “as to whether [she] should fly in [the] plane and not relying upon anything that anybody at Polytech said or didn’t say.” This evidence does not give rise to the imputation of her husband’s negligence if any upon her, absent the showing that she closed her eyes to obvious dangers, as above discussed. Neither does the evidence negate the implied invitation extended by appellees when their agent permitted Pamela Wade to enter the aircraft for the mutual benefit of both the Wades and appellee. Further, this evidence is inadequate to give rise to equitable estoppel or waiver,_ as a matter of law.

In regard to equitable estoppel, the record reflects that Pamela Wade neither by her statements nor conduct at the time engaged in any intentional deception or gross negligence amounting to constructive fraud, or misled or prejudiced appellee or its officer or otherwise lulled them to their detriment into believing they were released from their duty to exercise the requisite degree of due care for her safety aboard their plane. Thus, equitable estoppel has not been established, as a matter of law, and cannot provide the basis for a directed verdict against Pamela Wade. See generally 11 EGL Estoppel, §§ 46-53; 28 AmJur2d, Estoppel and Waiver, § 27. And if upon retrial additional evidence should raise an issue of equitable estoppel, that issue should be resolved by the trier of fact. Armstrong v. California Fed. &c. Assn., 192 Ga. App. 508, 510 (3) (385 SE2d 113).

In regard to waiver, neither did Pamela Wade by her statement at trial intentionally relinquish any known right, claim, or privilege against appellee or its officer, or in any manner expressly waive the duty of ordinary care owed by appellee to her for her safety aboard the aircraft. Accordingly, a waiver has not been shown to exist as a matter of law which would support a grant of directed verdict against her (see generally 28 AmJur2d, supra at §§ 154-158), and thus any issue of waiver would at best have raised a question for the jury.

We have examined the authority relied upon by appellee and find it not to be controlling in the disposition of appellants’ enumerations of errors. We conclude that the trial court erred in granting motion for directed verdict in favor of appellee and against appellants Malvin and Pamela Wade in Case No. A91A1919.

5. Cross-appellant/appellee asserts the trial court erred in granting directed verdict against it and in favor of cross-appellee/appellant, Malvin Wade, as to the counterclaim for damage to the airplane. After granting Polytech a directed verdict as to the claims of the Wades against it, the trial court sua sponte and without objection granted directed verdict against Polytech as to its counterclaim against Malvin Wade.

Under these circumstances, cross-appellant had no opportunity to object to the ruling before it was made. The question then arises whether by failing to take exception immediately after directed verdict was granted, cross-appellant waived his right to have the issue considered on appeal.

We conclude that when the trial court sua sponte grants a directed verdict, the party against whom the verdict was directed may challenge the grant by timely appeal notwithstanding the lack of either an objection or exception to the trial court’s ruling. OCGA § 9-11-46 (a); Davis & Shulman, Ga. Prac. & Proc. (5th ed.), § 14-4 and n. 1 (the language in OCGA § 9-11-46 (a) “[f]or all purposes for which an exception has heretofore been necessary” has no actual application to any preexisting Georgia law). Jackson v. Easters, 190 Ga. App. 713, 715 (3) (379 SE2d 610) is distinguishable from the facts of this case. The dictum found in State Farm &c. v. Wendler, 120 Ga. App. 839, 842 (2) (172 SE2d 360) is not deemed controlling in this case, particularly in view of the express statutory provisions of OCGA § 9-11-46 (a).

Decided November 5, 1991

Reconsideration denied November 21, 1991.

Awtrey & Parker, A. Sidney Parker, J. Lynn Rainey, for appellants.

Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellee.

Moreover, in Kelly v. Chrysler Corp., 129 Ga. App. 447 (199 SE2d 856), the trial court granted a motion for directed verdict and there appears to have been no objection or exception taken thereto at trial although, unlike the case at bar, the trial court did announce in advance its intention to entertain a motion for directed verdict if plaintiff’s testimony proved to be along the lines indicated by defense counsel. On motion for reconsideration appellant argued inter alia that the trial court failed to comply with Code Ann. § 81A-150 (a) (OCGA § 9-11-50 (a)) in that it directed a verdict before plaintiff had closed his case. The court declined to consider the issue on appeal on the basis that “[n] either of these contentions was made in the motion for new trial nor as an enumeration of error. Accordingly, they cannot be considered upon appeal.” Id. at 452 (1). Inherent within this holding is the proposition that if the contentions had been raised, as in the case at bar, in an enumeration of error, the propriety of the ultimate judgment could have been considered upon appeal. We find this to be a fundamentally fair result, under the circumstances before us, and will apply it in resolution of the appeal of Case No. A91A1920. See also Ford v. State, 200 Ga. App. 376 (408 SE2d 166).

We conclude the trial court erred in ruling on the motion for directed verdict before Polytech had an opportunity to present its evidence (OCGA § 9-11-50 (a); Mallard v. Mallard, 221 Ga. 480, 481 (145 SE2d 533)), particularly as the issue of contributory negligence of Jerry Cook, the ground primarily announced by the trial court in support of its directed verdict, was a matter for the jury (Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670)).

Judgments reversed.

Pope and Cooper, JJ., concur.


author: Andrews, Judge.

text:
    A91A1213.
    DEPARTMENT OF CORRECTIONS v. COLBERT.
    (413 SE2d 498)
   Andrews, Judge.

This appeal arose from actions of the trial court after the decision in Department of Corrections v. Colbert, 260 Ga. 255 (391 SE2d 759) (1990). Colbert affirmed the Superior Court’s judgment which reversed the State Personnel Board’s decision upholding the firing of Colbert from his position as fire chief at the Georgia State Prison in Reidsville.

Colbert was fired because he failed a routine drug screening conducted pursuant to a policy adopted by the warden of the prison without approval by the State Board of Corrections. In Colbert, supra, the Supreme Court found that, while such testing was not unconstitutional, as concluded by the superior court, the adoption of the policy without the board’s approval was illegal and the dismissal could not stand.

The remittitur from the Supreme Court was filed by the superior court clerk on June 27, 1990, reinvesting that court with jurisdiction. On June 4, however, the court entered its “Judgment on Remittitur” making the Supreme Court decision the judgment of that court. That action, however, was a nullity, since the remittitur had not been received. Marsh v. Way, 255 Ga. 284 (336 SE2d 795) (1985). Pursuant to receipt of a remittitur, the receiving court’s duty is to respect and carry into effect in good faith the ruling of the higher court. OCGA § 5-6-10.

Thereafter, on September 26, 1990, Colbert filed his “Motion for Modification (Clarification) of Judgment” premised on OCGA § 9-11-60 (h), pursuant to which the court issued a rule nisi and conducted a hearing on November 9, 1990, over the objections of the department.

In the motion, Colbert alleged he was entitled, under the superior court’s decision reversing the Personnel Board decision of dismissal, to repayment for collateral source earnings during his discharge, housing costs while discharged, attorney fees, court costs and litigation expenses, enrollment in all state health and benefit plans, and that the court direct other state agencies, not involved in the original administrative proceeding, to grant Colbert a medical retirement.

1. The first two enumerations are that the court erred in holding a de novo hearing in an administrative appeal in violation of OCGA § 45-20-9 (m) and in issuing orders on matters not previously considered by the personnel board or appealed to the superior court.

OCGA § 45-20-9 sets out the procedure for appealing adverse personnel actions by a state department included in the career service. It provides that action by a department may be reviewed by instituting an appeal before the personnel board. Id. at (a). The board then issues its findings of fact and conclusions of law. Id. at (g). The party aggrieved by that decision “may seek judicial review of the final decision or order of the board in the superior court of the county of the place of employment of the employee.” Id. at (h). The petition instituting review must state the “grounds upon which the petitioner contends the decision or order should be reversed or remanded.” Id. at (i).

Decided November 21, 1991.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, William F. Amideo, Assistant Attorney General, for appellant.

Here, the grounds for review were that the policy underlying the dismissal was unconstitutional or enacted in violation of law because not approved by the Board of Corrections.

The superior court’s review is restricted to the record made before the board and the only provision for supplementing the record is for the court to order additional evidence to be taken by the board. Id. at (1) & (m).

An employee must first present to the personnel board claims that the department has failed to abide by a court’s ruling reversing the board’s upholding of an employee’s dismissal, including issues of back pay and other benefits. State Personnel Bd. v. Morton, 198 Ga. App. 845, 848 (1) (403 SE2d 455) (1991). There is no provision for de novo consideration of any issue by the superior court. Cf. Georgia Power Co. v. Ga. Pub. Serv. Comm., 196 Ga. App. 572, 580 (5) (396 SE2d 562) (1990).

Further, OCGA § 9-11-60, a part of the Civil Practice Act, is not applicable to review of administrative actions and provides no basis for the court’s actions. Howell v. Harden, 231 Ga. 594 (1) (203 SE2d 206) (1974).

Therefore, the court was without jurisdiction in this appellate proceeding to consider matters not yet ruled upon by the personnel board with regard to Colbert.

2. The holding in Division 1 makes unnecessary consideration of the remaining enumerations.

Judgment reversed.

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

L. Lamar Murdaugh, Jr., for appellee.

       OCGA § 50-13-19 sets out similar provisions for reviewing other adverse agency actions.


author: McMurray, Presiding Judge.

text:
    A91A1861.
    In the Interest of J. E. H., a child.
    (413 SE2d 227)
   McMurray, Presiding Judge.

J. E. H. was adjudged to have committed the “traffic offense of Spinning Tires.” The punishment imposed by the Juvenile Court included a requirement that J. E. H. write a 2,500 word theme paper on Traffic Safety. Subsequently, a “PETITION (DELINQUENT/UNRULY)” was filed in juvenile court alleging that J. E. H. “has violated the section of the code cited below and is a delinquent/unruly child by reason of the facts set forth below.

“A. Above child is in violation of Georgia Juvenile Code 15-11-62, CONTEMPT OF COURT, to wit: after being ordered by Judge Ronald Cook on May 1, 1991, to write a 2500 word theme on ‘Traffic Safety’, child did disobey said order by writing a paper full of obscenities and of a demeaning and insulting nature toward the Court, the Police Officer, and the Court system in general.” The petition alleged “[t]hat said child is in need of supervision, treatment or rehabilitation.”

Following a hearing, the juvenile court entered an order stating that the theme paper submitted by J. E. H. was “found to contain numerous obscenities and did not concern itself with traffic safety, but rather a derogatory description of law enforcement, the judicial system, and his personal feelings concerning the judge, and the district attorney.” Based on these findings of fact, J. E. H. was adjudged to have committed a contempt of court and was ordered to “purge himself of this contempt by surrendering his [driver’s] license for a period of six months and rewriting the theme in an appropriate manner ... of 5,000 words in length ... on traffic safety.” The juvenile court’s order also provided that “[t]he Court will review the theme as to style and content and if not appropriate, the Court will order further suspension of his license.”

J. E. H. appeals the juvenile court’s order. The sole enumeration of error complains that the suspension of J. E. H.’s driver’s license was an illegal punishment. Held:

J. E. H. contends that the punishment imposed exceeds that permitted by OCGA § 15-6-8 (5) for contempt of court. However, we are not dealing directly with contempt of court. OCGA § 15-11-62, authorizing the juvenile court to punish for contempt of that court and incorporating the procedures therefor, must be read together with the remainder of the juvenile code so that, when a criminal contemnor is a child, the case is recognized to be a juvenile matter. Therefore, the case sub judice can only be viewed as a delinquency proceeding predicated on an allegation that J. E. H. has committed criminal contempt of court. See OCGA § 15-11-2 (6, 7).

Decided November 21, 1991.

Robert L. Ferguson, for appellant.

W. Fletcher Sams, District Attorney, W. Hawley Stevens, Assistant District Attorney for appellee.

OCGA § 15-11-33 provides for a bifurcated procedure in a delinquency case. The adjudicatory stage has been completed and the juvenile court has entered its determination that there is proof beyond a reasonable doubt that J. E. H. committed the act charged which is designated a crime by the laws of Georgia.

However, in the case sub judice, the juvenile court has held only one phase of the bifurcated procedure. “The juvenile had a right to a dispositional hearing in which he could have presented evidence relevant to the issue of disposition. We find that the juvenile code requires both an adjudicatory and dispositional hearing. Accordingly, the trial judge erred in making a disposition in the case in the absence of a dispositional hearing. The case is therefore remanded to the juvenile court for a dispositional hearing and a redetermination regarding the disposition of appellant’s case.” J. B. v. State of Ga., 139 Ga. App. 545, 546 (3), 547 (228 SE2d 712).

Following a dispositional hearing, if the juvenile court finds that J. E. H. is in need of treatment or rehabilitation it may make any of the orders of disposition provided under OCGA § 15-11-35. This includes the suspension of J. E. H.’s driver’s license pursuant to OCGA § 15-11-35 (b).

Judgment affirmed with direction.

Sognier, C. J., and Andrews, J., concur.

        In re Crane, 253 Ga, 667, 669 (2) (324 SE2d 443) and Garland v. State, 253 Ga. 789, 790 (1) (325 SE2d 131) overruled Pedigo v. Celanese Corp., 205 Ga. 392 (54 SE2d 252) and held “that in all criminal contempt cases the evidence of the contempt must be beyond a reasonable doubt.” While Pedigo stated the long established view that criminal contempt is not, strictly speaking, a criminal case, but is only quasi-criminal, Garland adopted the view that “ ‘[c]riminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.’ [Cit.]” Id. at 790 (1).


text:
    A91A2041.
    DYE v. THE STATE.
    (413 SE2d 500)
   McMurray, Presiding Judge.

Defendant Dye appeals his conviction of the offense of voluntary manslaughter. The sole enumeration of error contends the trial court erred in refusing defendant’s request to charge on involuntary manslaughter rather than on self-defense. Held:

Requests to charge on the issues of self defense, involuntary manslaughter in the commission of an unlawful act other than a felony, and involuntary manslaughter in the commission of a lawful act in an unlawful manner were submitted by defendant at the beginning of the trial. Defendant contends that, by doing so, he preserved a right to withdraw the charges on involuntary manslaughter or self-defense at the close of evidence so as to effect an election as to which of these issues would be submitted to the jury. The position advocated by defendant is predicated on the statement of a contention raised by the defendant in McLendon v. State, 259 Ga. 778, 780 (5) (387 SE2d 133).

We do not find the proposition stated by defendant to be a correct statement of the law. McLendon is based on the proposition that “a defendant who seeks to justify homicide under the ‘self-defense’ statute, OCGA § 16-3-21 ... is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA § 16-5-3 (b) . . .), whatever the implement of death.

“For if he is justified in killing under OCGA § 16-3-21 he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b) . . . , for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful.” Saylors v. State, 251 Ga. 735, 737 (3) (309 SE2d 796). See also Lamon v. State, 260 Ga. 119, 120 (2) (390 SE2d 582); Collins v. State, 259 Ga. 250, 252 (5) (379 SE2d 511); Johnson v. State, 259 Ga. 235, 236 (3) (378 SE2d 859); Thompson v. State, 257 Ga. 481, 482 (4) (361 SE2d 154); Griffin v. State, 199 Ga. App. 646, 648 (3a) (405 SE2d 877); Bangs v. State, 198 Ga. App. 404, 405 (2) (401 SE2d 599). The underlying principle is simply that “[a] charge on involuntary manslaughter is not warranted even if it is the sole defense if the evidence does not support the charge.” Turner v. State, 261 Ga. 439, 443 (6) (405 SE2d 660). In the case sub judice, defendant testified that he was fighting with the victim when he took a knife from his pocket and stabbed the victim in order to prevent harm to himself. This was either self-defense or an offense greater than involuntary manslaughter. If defendant was not justified in killing the victim the homicide does not fall within the “lawful act” predicate of OCGA § 16-5-3 (b). Saylors v. State, 251 Ga. 735, 737 (3), supra. The unlawful use of a knife, a deadly weapon, to stab the victim constituted the felony of aggravated assault, thus a charge on involuntary manslaughter in the commission of an unlawful act other than a felony would have been improper. Lolley v. State, 259 Ga. 605, 607 (4) (385 SE2d 285). The trial court did not err in refusing to charge on involuntary manslaughter.

Decided November 21, 1991.

Robert W. Lavender, Michelle C. Feinberg, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A92A0174.
    SMITH v. THE STATE.
    Decided November 21, 1991.
    Appeal dismissal. Clarke Superior Court. Before Judge Gaines. Richard L. Dickson, for appellant.

      Harry N. Gordon, District Attorney, for appellee.
    (413 SE2d 229)
   Pope, Judge.

This case involves an appeal from an order revoking probation. Because no application for discretionary appeal was filed as required by OCGA § 5-6-35 (a) (5), the appeal must be dismissed for lack of jurisdiction. See Scriven v. State, 179 Ga. App. 513 (346 SE2d 906) (1986).

Appeal dismissed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A0759.
    JARALLAH v. SCHWARTZ.
    (413 SE2d 210)
   Judge Arnold Shulman.

The appellant sued the appellee and three other defendants seeking damages for numerous alleged torts, including interference with contract, intentional infliction of emotional distress, defamation, fraud, invasion of privacy, and conspiracy, all arising from certain neuropsychological testing and evaluation which he had received in connection with a work-related head injury for which he had claimed workers’ compensation benefits. The appellee is the psychologist who actually administered the tests and performed the evaluation in question. The gist of the appellant’s complaint appears to be that the appellee administered the tests and performed the evaluation under the false pretense of providing “cognitive rehabilitation treatment” for his head injury and thereafter communicated the results to others, including the workers’ compensation carrier, without his consent or authority.

The appellee moved to dismiss the complaint based on the appellant’s failure to file with it an expert’s affidavit tending to show that he (the appellee) had committed an act of professional malpractice. See OCGA § 9-11-9.1 (a). The trial court granted this motion to the extent the complaint sought to recover damages for professional malpractice but denied it to the extent recovery was sought on the theories of unauthorized treatment and/or disclosure. Later on, however, the court granted summary judgment to the appellee with respect to these other claims, and the present appeal is from that order. Prior to granting summary judgment to the appellee, the trial court had granted summary judgment to the other three defendants in the case. An attempt by the appellant to appeal that ruling was dismissed by this court as untimely in Jarallah v. Aetna Cas. &c. Co., 199 Ga. App. 592 (405 SE2d 510) (1991).

The appellant was referred to the appellee by his treating physician “for cognitive rehabilitation treatment, neuropsychological assessment, and anything else [the appellee], in his professional opinion, deemed necessary.” Based on the results of the neuropsychological tests at issue, the appellee prepared a report which was not supportive of the appellant’s claim for workers’ compensation benefits. In an affidavit submitted in support of his motion for summary judgment, the appellee averred that he had given a copy of this report to the appellant and had reviewed his findings with him at the time. He stated that although the appellant indicated during this discussion that he understood the findings and did not disagree with them, he telephoned the following day to complain that the report was incorrect and should never have been written. The appellee stated that the appellant failed to keep his next appointment and that he (the appellee) later learned from the referring physician that the case had been transferred to a Dr. O’Hara at the appellant’s request. Acting pursuant to instructions from the appellant’s workers’ compensation carrier, which was also named as a defendant in the present action, the appellee subsequently forwarded copies of his report and the underlying neuropsychological data to Dr. O’Hara and discussed his findings with her. He heard nothing further about the matter until he was served with the summons and complaint in the present action several months later.

1. The appellant contends that the trial court erred in failing to consider certain audiotape recordings of conversations between himself and the appellee which, he asserts, support his claims. However, no such audiotapes are contained in the record before us, nor does the record reflect that any such tapes were before the trial court at the time it ruled on the summary judgment motion. (While the appellee’s counsel noted at the summary judgment hearing that the appellant had made reference to a tape recording in his response to the summary judgment motion and expressed concern that the appellant had “filed materials with this court with which we have not been served a copy of,” there is no indication that such materials were in fact filed.) “It is the duty of the party asserting error to show it by the record; mere assertions of error in briefs cannot satisfy this duty. [Cit.]” Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189, 190 (1) (397 SE2d 746) (1990). Under the circumstances, this enumeration of error presents nothing for review.

2. The evidence before the trial court conclusively negated the appellant’s allegations that the neuropsychological testing and evaluation were performed without his consent or that his consent, if given, was obtained through fraud. The appellant admitted in his deposition that the appellee discussed with him ahead of time the nature of the examination and evaluation he intended to perform, and there is no indication that the appellant ever voiced any objection to the appellee regarding any of the tests or procedures in question.

3. The evidence of record similarly negates the appellant’s claim that the appellee violated his right to privacy by disclosing the results of the evaluation to Dr. O’Hara. The appellant has not suggested that the appellee provided psychological counseling to him, nor has he alleged that the evaluation contained privileged communications within the contemplation of OCGA § 43-39-16, which provides as follows: “The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.” As previously indicated, the report was transmitted to Dr. O’Hara pursuant to a request from the insurance carrier which was handling the appellant’s claim for workers’ compensation benefits. Under OCGA § 24-9-40, a physician (other than a psychiatrist) is authorized to disclose medical information concerning a patient to the extent the patient “places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding.” See generally Gilmore v. State, 175 Ga. App. 376 (333 SE2d 210) (1985). While the appellee is not a physician and was not, strictly speaking, providing “medical care” to the appellant, it appears that the test results in question were in the nature of medical information, and we can conceive of no reason under the circumstances for concluding that the appellee was under a greater restriction with regard to the disclosure of this information than would have been the case had he been a physician. Under the circumstances, we hold that the appellee did not violate the appellant’s privacy rights either by transmitting the records in question to the health care professional who took over the appellant’s treatment or by discussing the case with her. Cf. OCGA § 34-9-202.

Decided October 28, 1991

Reconsideration denied November 22, 1991

Taj Jarallah, pro se.

Freeman & Hawkins, Andrew H. Meyer, Neely & Player, Andrew J. Hamilton, for appellee.

4. It follows from the foregoing that the appellant has no conspiracy claim. “ ‘ “Where damage results from an act which, if done by one alone, would not afford [a] ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy.” ’ [Cits.] Thus a ‘conspiracy’ to effect what one has a legal right to accomplish is not actionable. [Cit.]” McElroy v. Wilson, 143 Ga. App. 893, 895-896 (2) (240 SE2d 155) (1977).

5. All issues concerning the other three defendants named in the complaint were resolved in the companion appeal, Jarallah v. Aetna Cas. &c. Co., supra, and need not be considered here.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1079.
    A91A1120.
    COMMERCIAL UNION INSURANCE COMPANY et al. v. HOOVER TREATED WOOD PRODUCTS et al. COMMERCE & INDUSTRY INSURANCE COMPANY v. HOOVER TREATED WOOD PRODUCTS et al.
    (413 SE2d 217)
   Judge Arnold Shulman.

The appellants are three casualty insurers which, between them, have filed two declaratory judgment actions in Fulton County seeking to determine their respective obligations under certain policies of liability insurance issued to Hoover Treated Wood Products, Inc. (Hoover). Hoover is a Georgia corporation which produces “fire retardant treated” (FRT) lumber and plywood. These products have been distributed to various vendors throughout the nation, including Georgia-Pacific Corporation and a group of companies collectively referred to by the parties as “the Lowe’s Companies,” for sale to the building trade. Tort actions have been filed against Hoover and its vendors in several states based on allegations that its FRT products were defective. Hoover and its vendors have called upon Hoover’s liability insurers, including the appellants herein, to defend them in these actions and to indemnify them against any damages for which they might be held liable therein.

The first of the two declaratory judgment actions involved in this appeal was filed on September 21, 1989, by appellant Commerce & Industry Insurance Company. Commerce & Industry contends in its complaint that it is entitled to rescind or retroactively cancel the policy which it issued to Hoover based on certain material misrepresentations Hoover allegedly made in applying for the policy and on Hoover’s alleged failure to provide it with timely notice of the existence of the FRT claims. Commerce & Industry further contends that its policy does not, in any event, provide “vendor coverage” under which it would be obligated to defend Hoover’s vendors against the FRT claims. Named as defendants in the Commerce & Industry action are Hoover, Georgia-Pacific Corporation, the Lowe’s Companies, and the insurance agency through which Hoover obtained the Commerce & Industry coverage.

The second declaratory judgment action was filed on April 10, 1990, by appellants Commercial Union Insurance Company and American Employers Insurance Company. Like Commerce & Industry, these insurers seek an adjudication that their policies do not provide vendor coverage. They also seek an adjudication that certain “certificates of coverage” which were issued to Hoover by the insurance agency through which it procured these policies are unenforceable to the extent they represent that vendor coverage was included therein. These two appellants apparently do not seek to rescind or cancel the policies in question based on any alleged misrepresentations made by Hoover in applying for them or on any violation of the notice provisions contained therein. They do maintain, however, that the coverage provided by the policies does not by its terms encompass product liability claims such as the ones which have been filed against Hoover in connection with the alleged defects in its FRT wood products. Named as defendants in this declaratory judgment action are Hoover, Georgia-Pacific Corporation, the Lowe’s Companies, and the insurance agency through which this coverage was sold.

On October 16, 1989, during the interim between the filing of these two declaratory judgment actions, Georgia-Pacific and the Lowe’s Companies filed their own declaratory judgment action in federal district court in Florida seeking to determine the respective obligations of approximately 12 liability insurers, including the appellants herein, which allegedly had issued liability insurance to Hoover containing vendor coverage. Neither Hoover nor either of the two insurance agencies involved in the present actions were named as defendants in the Florida action, the subject of that litigation being confined to the relative obligations of the insurers to Hoover’s vendors rather to Hoover itself. Based on the pendency of the Florida action, Georgia-Pacific and the Lowe’s Companies filed motions in the present actions seeking to stay further proceedings therein pending a ruling in the Florida case. The trial court granted those motions, and the two cases are before us pursuant to our grant of the appellants’ applications for interlocutory review of these rulings.

Decided October 29, 1991

Reconsideration denied November 22, 1991

Bentley, Karesh & Seacrest, Gary L. Seacrest, Dan J. Colley, for appellants (case no. A91A1079).

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., for appellant (case no. A91A1120).

Lawson & Davis, G. Thomas Davis, J. R. Hanks, Nall, Miller, Owens, Hocutt & Howard, Robert B. Hocutt, Joleen M. Casey, for appellees.

The trial courts of this state have broad inherent power to stay proceedings “ ‘to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Bloomfield v. Liggett & Myers, 230 Ga. 484, 485 (198 SE2d 144) (1973). See also Fludd v. Tiller, 184 Ga. App. 93 (360 SE2d 647) (1987). Since the vendor coverage issue is being litigated in the Florida action, and since the appellants have been named as defendants in that action, we hold that the trial court did not abuse its discretion in staying the present actions to the extent they involve the issue of vendor coverage. However, it is apparent that the Florida litigation does not encompass the appellants’ contention that their policies provide no coverage to Hoover itself against the FRT claims, nor could that issue be adjudicated in the Florida action since Hoover is not a party to it. Because the appellants’ claims for declaratory relief on this issue may become moot to the extent they are forced to decide whether to provide Hoover with a defense to the FRT claims without the benefit of judicial guidance, we hold that the trial court abused its discretion in staying this aspect of the present litigation. We note, however, that Hoover has asserted in a brief submitted to this court that certain other declaratory judgment litigation is now pending in New Jersey which is more comprehensive in scope than the Florida litigation in that it does encompass the appellants’ obligations to Hoover as well as to Hoover’s vendors. Inasmuch as the trial court has not yet had an opportunity to rule on the issue of whether a complete stay of the present actions would be warranted by the pendency of that litigation, the case is hereby remanded for such a determination.

Judgments affirmed in part and reversed in part.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1434.
    TITAN INDEMNITY COMPANY v. HALL COUNTY et al.
    (413 SE2d 213)
   Judge Arnold Shulman.

This is a declaratory judgment action brought by the appellant insurance company to determine its obligations under a policy of general liability insurance issued to Hall County, which is one of the appellees herein.

On April 11, 1987, Elaine and Ruel Smith were killed when their car, being driven by Mr. Smith, crashed through a wooden guardrail on a county-maintained bridge and fell to the railroad bed below. An accident report prepared by two Hall County sheriff’s deputies noted that “[t]here were decayed spots in the guard rail.” The report further stated: “It is believed that [the car] was traveling at a slow speed and upon striking the wooden guard railing, shattered the only protective device which could have saved [it] from falling from the bridge.” There is evidence that the county had plans to replace the bridge.

The county administrator, Michael Bryant, heard about the accident from a deputy sheriff soon after it occurred. From what the deputy told him, it was Bryant’s impression that the driver of the car had suffered a heart attack and that the car had gone over rather than through the guardrail. Soon thereafter, Bryant had a telephone conversation with the local insurance agent who had sold the policy at issue to the county. While they were discussing other insurance matters unrelated to this case, the topic turned to a mutual friend who was in the construction business and who hoped to obtain the contract for the proposed replacement bridge. In the context of this discussion, Bryant mentioned to the insurance agent that there had recently been an automobile accident on the bridge in which two people had died. However, neither Bryant nor the insurance agent anticipated that the accident would result in a claim against the county, and neither of them transmitted notice of such a claim to the appellant.

On October 2, 1987, the appellant received notice from an unrelated third party that Mrs. Smith’s heirs were contemplating a wrongful-death action against the county. On November 15, 1988, such an action was filed based on allegations that the county had been negligent in maintaining the bridge. (Also named as defendants in this action were the administrator of Mr. Smith’s estate and Southern Railway, which owned the railroad right-of-way traversed by the bridge.) The appellant insurer filed this declaratory judgment action against the county and the other parties to the wrongful-death action, contending that it had no obligation in the matter due to the county’s alleged failure to comply with a policy provision requiring it to provide prompt notice “of an occurrence which may result in a claim.”

The appellant and the county both moved for summary judgment in the declaratory judgment action. Concluding that a material factual dispute existed as to whether the county had given the appellant prompt notice of the accident, the trial court denied the appellant’s motion. However, the court granted the county’s motion, concluding that even if it had failed to comply with the notice requirements of the policy, such failure was unintentional and consequently did not affect its coverage due to the existence of the following policy endorsement: “Unintentional Errors or Omissions. Any error, misstatement or mistake in information given by you to us will not invalidate the insurance provided by this policy unless it was intentional. However, we are entitled to premium based upon the correct information.” This appeal followed.

1. The appellant contends that the trial court erred in concluding that the “unintentional errors” endorsement was applicable to the insured’s duty under the contract to provide prompt notice of “an occurrence which may result in a claim.” We agree. It is clear from the language of the endorsement as a whole that it does not deal with the insured’s obligation to report potential claims which may arise while the policy is in force but with the reporting of information relevant to the insurer’s assessment of the risk involved in extending the coverage. Otherwise, the phrase, “[hjowever, we are entitled to premium based upon the correct information,” would be meaningless, since a failure to provide notice of an accident covered by the policy would in no event affect the premium due thereon.

“[I]f the contract is ambiguous the ambiguity is to be resolved against the insurer. [Cit.] But ambiguity is not to be created by lifting a clause or portion of the contract out of context. ...” Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579, 583 (168 SE2d 171) (1969). Accord Georgia Farm &c. Ins. Co. v. Joiner Intl., 177 Ga. App. 233, 234 (339 SE2d 284) (1985); Georgia Farm &c. Ins. Co. v. Ray, 148 Ga. App. 85 (251 SE2d 34) (1978); Midland Nat. Ins. Co. v. Wright, 117 Ga. App. 208 (1) (160 SE2d 262) (1968). Because the “Unintentional Errors or Omissions” endorsement can be considered controlling in this case only by reading the first sentence thereof out of context with the second, we hold that the trial court erred in granting the county’s motion for summary judgment.

2. We agree with the trial court, however, that the evidence does not establish as a matter of law that the county “failed to provide [the appellant] with timely notice of the accident.” It appears that at the conclusion of their telephone conversation shortly after the accident, the insurance agent knew as much about what had happened as did the county administrator. It has been held that notice to the selling agent may be considered notice to the insurance company. See International Indem. Co. v. Odom, 174 Ga. App. 6, 7 (329 SE2d 307) (1985). Furthermore, “[i]n Kitt v. Shield Ins. Co., 240 Ga. 619, 621 (241 SE2d 824) (1978), . . . the court held that the requirement for giving notice of an accident does not require that the insured give notice that a claim will be made against the insurer.” Tennessee Farmers Mut. Ins. Co. v. Wheeler, 178 Ga. App. 73, 76 (341 SE2d 898) (1986). “As is true generally with regard to issues relating to reasonableness and sufficiency of compliance with stated conditions, questions of the adequacy of the notice and the merit of appellees’ claim of justification are ones of fact which must be resolved by a jury as they are not susceptible to being summarily adjudicated as a matter of law. [Cits.]” State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 466 (258 SE2d 146) (1979). Accord Johnson v. Southeastern Fid. Ins. Co., 178 Ga. App. 431 (1) (343 SE2d 709) (1986); Hamm v. Ledesma, 184 Ga. App. 237 (361 SE2d 205) (1987). Accordingly, the trial court did not err in denying the appellant’s motion for summary judgment.

Decided October 28, 1991

Reconsideration denied November 22, 1991

Nall, Miller, Owens, Hocutt & Howard, Kenneth P. McDuffie, Michael D. Hostetter, for appellant.

Forrester & Brim, Weymon H. Forrester, Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Finch, McCranie, Brown & Thrash, Thomas W. Thrash, Jr., Stewart, Melvin & House, J. Douglas Stewart, for appellees.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Beasley, J., concur.


author: Carley, Presiding Judge.

text:
    A91A0962.
    CHRISTOPHER v. THE STATE.
    (413 SE2d 236)
   Carley, Presiding Judge.

After a bench trial, appellant was found guilty of driving under the influence and of underage possession of alcohol. He appeals from the judgments of conviction and sentences entered by the trial court on its findings of guilt.

1. Appellant enumerates as error the denial of his motion to suppress.

It is immaterial that there may have been no articulable suspicion or probable cause to stop the vehicle that appellant was operating, because appellant was stopped at a sobriety checkpoint. [T]he Supreme Court [has] specifically indicated . . . that roadblocks [can] be considered a valid alternative to random vehicle stops. [Cit.] The Supreme Court has also indicated . . . that checkpoint stops are to be viewed differently from isolated vehicle stops ‘because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.’ [Cits.]” State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984). “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. . . . Conversely, the weight bearing on the other scale — the measure of the intrusion on motorists stopped briefly at sobriety checkpoints — is slight.” Michigan Dept. of State Police v. Sitz,_U. S._(110 SC 2481 (4), 110 LE2d 412) (1990). Accordingly, the issue for resolution is not whether there was an articulable suspicion or probable cause to stop appellant’s vehicle, but whether the instant sobriety check was otherwise implemented and conducted in such a manner as to demonstrate that the stop of appellant’s vehicle was “ ‘reasonable’ under the Fourth Amendment.” Michigan Dept. of State Police v. Sitz, supra at (4). See also Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989).

The evidence shows that officers had set up the sobriety checkpoint on a road where general complaints had been made regarding intoxicated drivers. The decision to set up the sobriety checkpoint was made only after the officers had been called at 11:00 p.m. to investigate a complaint regarding a loud party at a residence on the road. The host of the party was warned that those leaving his house in vehicles would have to pass through a sobriety checkpoint which was being set up along the road. In the ensuing two hours, all vehicles traveling along the road past the sobriety checkpoint were stopped. One of those vehicles was being operated by appellant, who had been a guest at the house where the party was being held.

We note at the outset that the sobriety checkpoint cannot be considered “unreasonable” and unconstitutional “on the basis that it was conducted at a time and place conducive to stopping drivers who were leaving [a party] in the area. The purpose of such roadblocks is to locate and arrest those who are abusing the privilege of driving on public roads by driving while they are intoxicated. It further serves to deter such abuse. It is not unreasonable that such roadblocks would be located where such drivers would be expected to be at a time they might be expected to be there.” State v. Payne, 759 SW2d 252, 253 (2) (Mo. App. 1988). Moreover, the officers had actually warned the host of the party that the sobriety checkpoint would be set up along the road. Thus, if appellant was unaware that he faced the prospect of being stopped on the road as he left the party, it was only because his own host had failed to warn him. It would not render the sobriety checkpoint “unreasonable” and unconstitutional that, upon being stopped without prior warning, appellant experienced “the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint. . . .” Michigan Dept. of State Police v. Sitz, supra at (5).

In Golden v. State, supra at 29 (2), and Evans v. State, supra, we addressed several factors in determining whether the roadblocks which were there in issue were “reasonable” and constitutional. However, “[n]either Evans nor Golden establishes] absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this court looked ‘at the totality of the circumstances surrounding the roadblock’ to decide whether ‘the factors in Golden were satisfied.’ [Cit.] ... As there is no question that [the officers in the instant case] are authorized to enforce laws on [the operation] of motor vehicles [by drivers under the influence] and using roadblocks for such purposes [is] reasonable and acceptable ([Michigan Dept. of State Police v. Sitz,] supra), the only issue in this appeal is whether the trial court correctly decided that the evidence established that this roadblock was authorized and that [appellant] was not singled out to [be] stopfped].” Mims v. State, 201 Ga. App. 277, 279 (2) (410 SE2d 824) (1991).

The evidence in the instant case was sufficient to show that, under the totality of the circumstances, the roadblock, as established and implemented by the officers, was “authorized.” “[F]or purposes of Fourth Amendment analysis the choice among . . . reasonable alternatives [for apprehending drunken drivers] remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.” Michigan Dept. of State Police v. Sitz, supra at (6). Likewise, the evidence was sufficient to show that, under the totality of the circumstances, the roadblock was not established and implemented by the officers as a pretext to stop appellant, but as a legitimate law enforcement technique to subject all drivers along the road, including those who might leave the party, to a brief stop so as to detect signs of intoxication. See generally Mims v. State, supra at 279 (2). Appellant was stopped as the fortuitous result of his operation of a vehicle along the road at a time when a sobriety checkpoint happened to be in effect, not as the result of the officers’ capricious decision to stop his particular vehicle at random so as to determine his sobriety.

It follows that there was no error in denying appellant’s motion to suppress.

2. Appellant’s enumeration of the general grounds is without merit. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 22, 1991.

Thomas E. Maddox, Jr., for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Judgments affirmed.

Judge Arnold Shulman concurs. Beasley, J., concurs in Division 2 and in the judgment.


text:
    A91A1126.
    EXXON CORPORATION v. DEPARTMENT OF TRANSPORTATION.
    (413 SE2d 238)
   Judge Arnold Shulman.

The Department of Transportation (DOT) condemned a 360-square-foot triangle of land located at the intersection of 1-75 and Delk Road in Cobb County, on which the Exxon Corporation maintained a large sign advertising one of its service stations. The remainder of the property on which this triangle of land was located was owned by Motel 6 and was being used for motel purposes, while the service station advertised by the sign was located on the other side of the motel property, on an adjacent parcel of land owned by Exxon. Motel 6 had ceded to Exxon the perpetual right to erect and maintain a high-rise interstate highway sign at the location in question, along with the perpetual right to go upon and across the remainder of its property for the purpose of accessing the sign. The trial court granted a motion in limine filed by the DOT seeking to prevent Exxon from introducing evidence that its service station property had sustained consequential damages as a result of the taking of the sign, and the case is before us pursuant to our grant of Exxon’s application for interlocutory review of that ruling.

1. “[A]n asserted insufficiency in the condemnee’s evidence . . . is not appropriately resolved on a motion in limine. A motion in limine determines the admissibility of evidence. A motion for summary judgment or for a directed verdict would be the appropriate means by which to invoke a ruling as to the sufficiency of the condemnee’s evidence.” Buck’s Svc. Sta. v. Dept. of Transp., 191 Ga. App. 341 (381 SE2d 516) (1989), aff’d 259 Ga. 825 (387 SE2d 877) (1990). It follows that a motion in limine was not the proper procedural vehicle by which to adjudicate Exxon’s entitlement to seek consequential damages in the present action for the injury to its service station property allegedly caused by the taking of its sign. The order appealed from is accordingly reversed; however, inasmuch as Exxon’s entitlement to assert its consequential damage claim in the present action must ultimately be adjudicated, and inasmuch as the trial court has, by its grant of the DOT’s motion in limine, effectively ruled against Exxon on the issue, we will nevertheless proceed, in the interest of judicial economy and efficiency, to address the merits of that ruling.

2. “Consequential damages to a contiguous tract of land having a different ownership from that in which the taking occurs may be real and may in fact exist, but a separate owner’s claim for consequential damages to his land contiguous to the tract where the taking occurs cannot be asserted in a condemnation action. Consequential damages to ‘the remainder of the tract in which the taking occurs’ are the only consequential damages that may be recovered in the condemnation action.” Georgia Power Co. v. Bray, 232 Ga. 558, 560 (207 SE2d 442) (1974). See also Gaines v. City of Calhoun, 42 Ga. App. 89, 93 (155 SE 214) (1930) (holding that “where adjoining or contiguous parcels of land belonging to the same owner are put to separate and distinct uses, and do not together constitute one entire tract, damage to one of the parcels, as a result of the performance of public work in the neighborhood, is determinable without reference to the effect of the work upon the adjoining land”). (Emphasis supplied.)

Exxon argues that there was a “substantial unity of ownership” between its service station property and the contiguous Motel 6 property on which the taking occurred by virtue of its perpetual easement “to go upon and across any and all of the remainder of [the Motel 6 property] for the purpose of accessing the sign along the most direct and practical route from [its service station property].” Citing this Court’s holding in Department of Transp. v. Arnold, 154 Ga. App. 502, 503 (268 SE2d 775) (1980), for the proposition that “substantial, not perfect, unity of ownership” is all that is needed to authorize a recovery of consequential damages for injury to a contiguous property caused by a taking, it contends that it is therefore authorized to seek consequential damages in the present action.

We find this contention to be without merit for three reasons. First, we do not believe Exxon’s generalized right to go across the Motel 6 property to access its sign can reasonably be considered an ownership interest in the entire property. Second, even it if could be, this would not create, in our view, either a substantial unity of ownership or a substantial unity of use between the motel property and the service station property. And finally, the decision in Dept. of Transp. v. Arnold, supra, had nothing to do with consequential damages. The taking in that case had occurred on a parcel of land owned by three persons, each of whom had previously treated the parcel as part of a larger tract formed by it and an adjoining parcel owned by only two of them, and this court’s holding was simply that the jury was authorized to consider the estimated per-acre value of the combined tract in determining the value of the land taken. More on point with the present case is Georgia Power Co. v. Bray, supra, which involved the condemnation of a tract of land jointly owned by two condemnees, one of whom was seeking to recover consequential damages for injury to a contiguous five-acre tract which he owned separately. The Supreme Court ruled that he was not entitled to make such a claim in the condemnation proceeding, holding that “[i]f the 5-acre tract. . . suffered damages by virtue of the taking which occurred on the joint-ownership tract, then such damages must be asserted in a separate action against the condemnor.” Id., 232 Ga. at 561. Accord Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980); Southwire Co. v. Dept. of Transp., 147 Ga. App. 606 (249 SE2d 650) (1978).

Decided November 22, 1991.

Alston & Bird, Walter G. Elliott II, Earle B. May, Jr., for appellant.

Evans & Flournoy, Charles A. Evans, for appellee.

Based on these authorities, and on our conclusion that the Motel 6 property was not, in any event, a joint-ownership property, we hold that the trial court was correct in its conclusion that Exxon was not entitled to claim consequential damages in the present case for the alleged injury to its service station property caused by the taking of its sign.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Beasley, J., concur.