text:
    A93A2236.
    WELLS v. THE STATE.
    (441 SE2d 460)
   McMurray, Presiding Judge.

Defendant was indicted along with Lynn Windom Ellington and Elijah Tompkins for trafficking in cocaine. Elijah Tompkins entered a plea of guilty to the reduced charge of possession of cocaine and Lynn Windom Ellington pled guilty to possession of cocaine with intent to distribute. Defendant was tried before a jury and found guilty of trafficking in cocaine.

At trial, Investigator Wayne Cain of the Dublin Police Department testified, in pertinent part, as follows: “On the afternoon of January 24, 1992 I received a phone call from a confidential informant. The informant advised that he knew [defendant], Lynn Ellington and Elijah Tompkins were traveling in [defendant’s] 1974 Grand Torino. They had gone to Atlanta for the purpose of picking up an amount of cocaine. [STATE’S ATTORNEY]. Now had you previously received other information that proved to be reliable from this informant? A. Yes, I had, on several occasions. Q. And, basically, what else did the informant tell you? A. The informant included that [defendant] was supposed to purchase approximately one ounce of cocaine and that it was assumed that Elijah Tompkins would get an equal amount. I was advised that they had already left and should already be well in route to Atlanta, but that they would be coming back that same day and they would be traveling on 1-16, both from Dublin to Atlanta and then back that same route. Q. What kind of vehicle would they be traveling in? A. In [defendant’s] Ford Grand Torino. Q. What color is it? A. Black. Q. Did you know the car? A. Yes, I did. I was very familiar with the car including the fact that I had the tag number. Q. Okay. Now, based on this information that you received, what action did you take? A. There are several exits from 1-16 that lead to Dublin. I wanted to set up surveillance so I could intercept [defendant] after he came back to Dublin, but I didn’t want to take a chance of setting up too far east and him turning off on one of these exists. Therefore, I contacted the Bleckley County Sheriffs office and talked with Investigator Jon Thrower. ... I also contacted Agent Ted Fuqua who is an agent with our drug task force and I contacted Bucky Hobbs who is a parole officer in the Dublin office. ... We met with Investigator Thrower and Deputy Lee Baggs there at 112 at 1-16 [and] parked in the median of the interstate. . . . There were two vehicles. Myself and Agent Hobbs in my car and Deputy Lee Baggs in the deputy’s car, Bleckley County. Q. And, approximately what time did you first see the vehicle being occupied by [defendant], Ellington and Tompkins? A. At approximately 10:20. Q. Okay. And, what did you all do once you saw the vehicle? A. We were parked directly beside each other talking. I believe Deputy Baggs saw the car first and said, ‘There it is.’ As soon as it came by us we immediately pulled out behind it. Deputy Baggs pulled directly in behind the car and me behind him. Deputy Baggs activated his blue lights and at that time [defendant] pulled over onto the emergency lane of the interstate but did not stop. He was continuing traveling between forty and fifty miles an hour. I pulled along the side of [defendant’s] car because I thought at that time it was possible he could be trying to throw contraband out of the car. We suspected he would be carrying cocaine and it is common that people do throw cocaine out to avoid being arrested. So I pulled along beside him so I could observe what he was doing, and then [defendant] did stop. After [defendant] stopped, I got out. Agent Hobbs got out and Deputy Baggs got out and ... I observed that [defendant] was, in fact, the driver of this car and I had already verified that that was, in fact, [defendant’s] car by the tag number. Lynn Ellington was a passenger in the front seat. Elijah Tompkins was a passenger in the back seat along with a small child in a car seat. Elijah was acting as if he was poking something down into the seat of the car. At that time, I asked [defendant] to step out of the car. When I did [defendant] became sort of irate and I placed the handcuffs on him. Deputy Baggs then told Tompkins to get out of the car and he and parole officer Hobbs sort of escorted Tompkins out of the car. At that time, Deputy Baggs got in the back seat of the car and checked where Tompkins was poking down and pulled out cocaine. . . . Q. All right. After the cocaine was found, what did you all do with Elijah Tompkins and [defendant]? A. They were both advised of their Miranda rights and they were taken back to the patrol car and set down in the patrol car. Q. Did you have an occasion subsequent to that to have a conversation with Lynn Ellington? A. Yes, I did. Q. Where did that occur? A. Lynn was at — still at the front of [defendant’s] car and I went back up to where she was at and I advised her of her Miranda rights. I advised her that I knew that they had just come from Atlanta and that I knew they were transporting cocaine, but the amount was supposed to be larger than what we had already found, and I asked her was there anymore cocaine and she stated, yes, there was. I asked her where was it and she said, ‘I’ve got it on me.’ I told her to give it to me because I know Lynn and this was a fairly general conversation between her and I. I told her to give it to me. At that time she began crying and she said, ‘Please don’t tell [defendant] I told on him. Don’t let him know that I gave it to you.’ I told her as long as she would be truthful with us, I would do whatever I could to help her as far as keeping it from [defendant]. At that time I advised the other officers that I had recovered the second bag of cocaine. . . . Q. Now, did you have any further conversation with [Lynn Ellington] out at the scene about the involvement by the various ones whose cocaine this was? A. The only thing she said there at the scene was the fact that for me to please not tell [defendant] she had told on him. She was then transported to the Bleckley County Sheriff’s office [where she said that] her and [defendant] were going to Atlanta and they saw Elijah and Elijah decided to go with them and that she knew that they were going to pick up cocaine. They went to Atlanta [and] went to her sister’s house and that Elijah left, that [defendant] said he’d be back in a few minutes. Elijah did come back and they got back in the car and they came back toward Dublin. They stopped somewhere in route to Dublin and ate supper and were traveling east on 16 when the blue lights came on. She was fixing a drink and when the blue lights came on [defendant] told her to put the gin up and a bag of cocaine landed in her lap. To begin with, she said the [defendant] had put it in her lap. When I questioned her about that she changed it to where she didn’t know who threw it in her lap, but that Elijah told her to put it in her pants. And, basically that was it.”

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for mistrial after Investigator Cain injected defendant’s character into evidence on cross-examination.

“ ‘ “(A) party will not be heard to complain of error induced by his own conduct. . . . (Cits.)” (Cit.)’ Littlefield v. State, 197 Ga. App. 343, 344 (2) (398 SE2d 375) (1990).” Heard v. State, 204 Ga. App. 757, 759 (4) (420 SE2d 639). In the case sub judice, defense counsel asked Investigator Cain whether defendant’s conviction for a similar criminal act offered into evidence by the State “has now been concluded?” The investigator explained: “Larry was convicted on that charge, served time and was released from prison. They [sic] new charges caused the parole department to revoke his parole and he, as my understanding is now, back in prison on that original charge, so it’s not concluded yet.” The trial court found this answer responsive to defense counsel’s question and denied defendant’s motion for a mistrial. We find no abuse of discretion in the trial court’s finding that Investigator Cain’s answer was responsive to defense counsel’s question. Consequently, the trial court did not err in denying defendant’s motion for mistrial.

2. Next, defendant contends the warrantless search of his automobile was made without probable cause.

Investigator Cain testified that he had been acquainted with the confidential informant for several years before the tip which led to defendant’s arrest; that the confidential informant had provided reliable information in the past; that he has “made five separate narcotics cases from information provided by this informant that was proven reliable [and that these] five cases did involve arrest and convictions in the seizure of drugs.” This testimony reveals that the confidential informer’s tip “met the test of reliability. [Nonetheless, defendant argues the information was insufficient to support a warrantless search because the source of the informant’s information was undisclosed. The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). ‘(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ Id. at 233. [In the case sub judice], any deficiency in the basis of the informant’s knowledge was adequately compensated by the informant’s previous record of reliability. Moreover, the details of the tip were corroborated by the personal observation of the investigating officers. When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrant-less search. See Draper v. United States, 358 U. S. 307 (79 SC 329, 3 LE2d 327) (1959). . . . We also reject defendant’s claim that the circumstances did not support a warrantless search of the automobile. It is well settled by Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925), and its progeny that an ‘automobile exception’ to the warrant requirement of the Fourth Amendment applies to the search of a vehicle as to which there is probable cause to believe it contains contraband.” McKinney v. State, 184 Ga. App. 607, 608 (1), 609 (2) (362 SE2d 65).

3. Defendant contends the trial court erred in denying his motion to reveal the identity of the confidential informer.

“ ‘Public policy in Georgia favors nondisclosure of the identity of an informant in the interest of the free flow of information about criminal activity. (Cit.)’ Grimes v. State, 168 Ga. App. 372, 376 (5) (308 SE2d 863) (1983). The identity of a mere tipster is privileged, but where the informer is a witness or participant, or has entrapped a defendant into committing a crime, disclosure could be material to the defense. State v. Royal, 247 Ga. 309, 312 (275 SE2d 646) (1983); Thornton v. State, 238 Ga. 160 (2) (231 SE2d 729) (1977).” Simmons v. State, 208 Ga. App. 721, 722 (1), 723 (431 SE2d 721).

In the case sub judice, Investigator Cain’s testimony reveals that the confidential informant was a tipster rather than a witness or participant in the crimes charged. Under these circumstances, the trial court did not err in denying defendant’s motion to reveal the identity of the confidential informer.

4. Defendant contends the trial court erred in allowing similar transaction evidence regarding his 1989 conviction for possession of cocaine with intent to distribute, arguing there was no evidence presented establishing the similarity or connection between the independent offense and the crime for which he was on trial.

“Generally, on a prosecution for a particular crime, evidence of independent offenses committed by an accused is irrelevant and inadmissible. Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). ‘Before any evidence of an independent offense may be introduced, the state must show 1) that the evidence is relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; 2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and 3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.’ (Citations and punctuation omitted.) Wooten v. State, 262 Ga. 876, 880-881 (4) (426 SE2d 852) (1993). See also Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991); Stephens v. State, 261 Ga. at 469. ‘There is no requirement that, to come within the other transaction exception, the other transaction must be identical in every respect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.’ (Citations and punctuation omitted.) Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992). See also Blige v. State, 205 Ga. App. 133 (2) (421 SE2d 547) (1992).” Cantrell v. State, 210 Ga. App. 218, 220 (2) (435 SE2d 737).

In the case sub judice, the State presented a certified copy of defendant’s May 11, 1989, conviction for possession of cocaine with intent to distribute. Investigator Cain testified that he was the officer involved in the investigation which led to defendant’s prior conviction; that the prior conviction involved defendant’s activities with a girl friend in distributing cocaine from a boarding house in Dublin, Georgia; that the boarding house was owned by a relative of co-defendant Lynn Windom Ellington; that defendant gave his girl friend contraband when their apprehension by law enforcement officers was imminent and that defendant told his girl friend to conceal the cocaine in her body moments before his arrest. This evidence authorizes a finding that the circumstances underlying defendant’s prior conviction are relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; that there is sufficient evidence to establish that defendant committed the prior criminal act and that there is a sufficient connection or similarity between the prior criminal act and the crime charged so that proof of the former tends to prove the latter. See Cantrell v. State, 210 Ga. App. 218, 220 (2), supra. Specifically, the circumstances underlying defendant’s prior conviction for possession of cocaine with intent to distribute are substantially similar to justify admission of the prior criminal act for the purpose of proving defendant’s motive, intent and course of conduct in completing the crime charged. Consequently, the trial court did not err in allowing the State to introduce defendant’s May 11, 1989, conviction for possession of cocaine with intent to distribute as a prior similar act.

Decided February 14, 1994.

Straughan & Straughan, William T. Straughan, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Russell P. Spivey, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A2309.
    APPLIED ECOLOGICAL SYSTEMS, INC. v. WESKEM, INC.
    (441 SE2d 279)
   Smith, Judge.

Weskem, Inc. sued Applied Ecological Systems, Inc. (AES) on account. After answering, AES sought and obtained leave to amend its answer to assert an omitted counterclaim. See OCGA § 9-11-13 (f). Weskem’s motion for summary judgment on the main claim was granted in March 1992. Approximately one year later, in March 1993, Weskem filed a motion to dismiss AES’s counterclaim for failure to state a claim. That motion also was granted, and AES appeals.

In its counterclaim, AES alleged claims for trademark infringement, tortious interference with business relationships, and theft of trade secrets. AES alleged that it had entered into an agreement with Weskem and others for the production and assembly of refrigerant recovery and purification systems having registered trade names that were patented and manufactured by AES. It further alleged that Weskem had violated a confidentiality agreement executed in connection with the production and assembly agreement, had without authority appropriated technology developed by AES, had infringed its trademarks, and had misappropriated AES’s good will by marketing its own products under AES trade names. Paragraph nine of the counterclaim recited that a copy of the confidentiality agreement was attached as Exhibit “A.” However, a copy of the confidentiality agreement was not attached.

Weskem’s motion to dismiss the counterclaim was based on AES’s failure to attach the confidentiality agreement as an exhibit to the counterclaim. Weskem contended that because in its response to the counterclaim it had denied that it had been attached to the counterclaim and denied the existence of this agreement and no reply had been filed by AES, the agreement, which formed the basis for the counterclaim, had not been proved.

On May 12, 1993, AES filed a response to the motion to dismiss and an amendment to its counterclaim, attaching a copy of the confidentiality agreement.

The trial court’s order entered May 24, 1993, granting Weskem’s motion to dismiss the counterclaim, appears to grant the motion on that basis. The order recites that “after reviewing the pleadings and [Weskem’s] motion and [AES’s] response thereto (same being filed more than 30 days after [Weskem’s] motion), and a pre-trial order having been filed on May 2, 1991, and [AES] attempting to file an amendment to its counterclaim on May 11, 1993 [,] it is hereby ordered that [Weskem’s] motion is hereby granted and [AES’s] counterclaim is dismissed.”

AES contends that dismissal of the counterclaim on that basis was erroneous. We agree and reverse.

First, OCGA § 9-11-16 (b) provides with respect to pretrial orders that “[t]he court shall make an order which . . . when entered, controls the subsequent course of the action. ...” Although a party may not amend his pleading as a matter of course without leave of court after the entry of a pretrial order, OCGA § 9-11-15 (a), the record does not disclose that such an order was entered here. Weskem states in its brief that it “faxed” its portion of the proposed pretrial order to counsel for AES and assumed it would be filed with the court, and it has attached a copy of the alleged “fax” transmittal to its brief. This court, however, cannot consider in the appellate process factual assertions in briefs when they are not supported by the record. Nodvin v. West, 197 Ga. App. 92, 96 (3) (c) (397 SE2d 581) (1990). The record shows only that on May 2, 1991 the defendant’s portion of a proposed consolidated pretrial order was filed. It was not a complete pretrial order, or even an order, within the meaning of OCGA § 9-11-16 (b), having not been made or signed by the judge. A pretrial order not having been entered, AES was free to amend its counterclaim without leave of court.

Decided February 14, 1994.

Solomon & Edgar, William J. Edgar, for appellant.

Andrew H. Lakin, for appellee.

Dismissal for failure to state a claim would have been improper even if AES had not filed an amendment attaching the confidentiality agreement to its counterclaim. It is well established that “[u]nder the CPA, a pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.” Skelton v. Skelton, 251 Ga. 631 (1) (308 SE2d 838) (1983). “Insofar as general rules of pleading are concerned, a counterclaim stands upon the same footing as an original claim.” Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855, 859 (1) (194 SE2d 913) (1972). Under our system of notice pleading, the counterclaim must set forth only an allegation of injury resulting from another’s actions. It will rarely appear beyond a doubt that the pleader can prove no set of facts that support the claim. Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 114 (2) (351 SE2d 513) (1986). In this case, contrary to Weskem’s argument, its denial in responsive pleadings that the agreement exists does not conclusively establish its nonexistence. Even absent the attached copy of the agreement, AES may still be able to prove that an agreement existed and that Weskem breached it.

Contrary to Weskem’s argument, AES’s failure to join indispensable parties would not be ground for dismissal for failure to state a claim. Should it appear that indispensable parties were not joined, the remedy would not be dismissal but corrective action, as provided by OCGA § 9-11-19. See Empire Banking Co. v. Martin, 133 Ga. App. 115 (210 SE2d 237) (1974). The trial court erroneously granted Weskem’s motion to dismiss the counterclaim.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A2402.
    DAVIS v. DAVIS.
    (441 SE2d 776)
   McMurray, Presiding Judge.

Harold Davis (plaintiff) brought an action against his uncle, Earnest L. Davis, (defendant), alleging that defendant unlawfully appropriated his “C-266 Bantam Backhoe . . .” and that plaintiff “was forced to rent comparable equipment to use on various projects to replace the damaged Backhoe.” Defendant denied the material allegations of the complaint and counterclaimed, alleging that plaintiff’s complaint is frivolous and that plaintiff owes him in excess of $50,000 for loans, materials, labor and equipment. The case was tried before a jury and a $20,000 verdict was entered on plaintiff’s claim against defendant and a verdict for plaintiff on defendant’s counterclaim. This appeal followed the denial of defendant’s motion for j.n.o.v. or for a new trial. Held:

Decided February 14, 1994.

Richard B. Thurman, for appellant.

Thomas M. Moss, for appellee.

In two enumerations, defendant contends the trial court erred in denying his motion for j.n.o.v. or for a new trial, arguing that the evidence is insufficient to support the verdict.

Plaintiff testified that he owned a large machine used for channeling pipe in difficult terrain; that defendant seized his equipment without authority; that plaintiff discovered that his equipment was being used by defendant on a project in the State of South Carolina; that defendant promised to pay plaintiff $4,000 a month for use of the equipment; that defendant thereafter used the equipment for six months and that defendant never paid plaintiff for use of said equipment. This testimony alone is sufficient to support the jury’s verdict. Stolle Corp. v. McMahon, 195 Ga. App. 270, 272 (3) (393 SE2d 52).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A92A1767.
    J & A PIPELINE COMPANY, INC. v. DeKALB COUNTY.
    (443 SE2d 12)
   Cooper, Judge.

The Supreme Court of Georgia in DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (437 SE2d 327) (1993), having affirmed in part and reversed in part this court’s prior judgment in this case wherein we reversed the trial court and remanded with direction, the judgment of this court in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123 (430 SE2d 13) (1993) is hereby vacated, and the judgment of the trial court is hereby affirmed in part and reversed and remanded in part in accordance with the direction prescribed by the Supreme Court in DeKalb County v. J & A Pipeline Co., supra.

Decided January 19, 1994

James B. Ritchie, for appellant.

Johnson & Montgomery, Albert S. Johnson, Patrick F. Henry, Jr., Robert H. Walling, for appellee.

McReynolds & Welch, Michael Welch, Bryant, Davis & Cowden, Larry S. Bryant, Cynthia L. Weese, Aiken & Ward, Frederic S. Beloin, Gleaton, Scofield, Egan & Jones, M. Michael Egan, Jr., Charles H. Fails, Steven H. Ballard, Leonard E. Smith, amici curiae.

Judgment affirmed in part and reversed and remanded with direction in part.

McMurray, P. J., and Blackburn, J., concur.


author: Andrews, Judge.

text:
    A93A2046.
    RUCKER et al. v. WYNN.
    (441 SE2d 417)
   Andrews, Judge.

After the tenants in a commercial lease agreement failed to pay rent when due under the lease terms, the landlord, without notice to the tenants, retook possession of the premises and rerented it pursuant to terms in the lease providing that the lease would remain in effect, and that the tenants would be liable for accruing rent less amounts collected on rerental. The tenants sued the landlord for wrongful eviction, trespass, breach of the implied covenant of quiet enjoyment of the premises, breach of the lease agreement, breach of an alleged oral contract to accept late payment of rent, and conversion of personal property. The landlord counterclaimed seeking the difference between past due rent accruing under the lease and rent generated by rerental. The trial court granted partial summary judgment in favor of the landlord eliminating all the tenants’ claims except conversion of personal property, and granting summary judgment in favor of the landlord on the counterclaim for $248,830 for accrued rent, plus additional sums for attorney fees and interest. The tenants appeal from the order of summary judgment.

The lease agreement at issue provided for the lease of the premises for a restaurant business for a term of five years beginning July 1, 1990 for monthly rent of $7,000 for the first five months and $12,500 per month thereafter. Rent was due under the lease on the first day of each month. The tenants failed to pay the $12,500 rent payment due on January 1, 1991. On or about January 7, 1991, the tenants gave the landlord a check for $12,500, but informed the landlord that there were not sufficient funds in the bank to cover the check. According to the landlord, the tenants asked him to hold the check and allow them to operate the business through the next weekend so they could generate funds to cover the check, which the landlord agreed to do. According to the tenants, the landlord agreed to hold the check for two weekends. The landlord deposited the check on January 16, 1991, and it was refused for insufficient funds.

The lease defined a failure to pay rent as a default constituting a breach of the lease, and further provided that in the event of such default, and without notice, the “Landlord, as Tenant’s agent, without terminating this lease may enter upon and rent the premises, in whole or in part, at the best price obtainable by reasonable effort, without advertisement and by private negotiations and for any term landlord deems proper, with Tenant being liable to Landlord for the deficiency, if any, between Tenant’s rent hereunder and the price obtained by Landlord on reletting; provided, however, that Landlord shall not be considered to be under any duty by reason of this provision to take any action to mitigate damages by reason of Tenant’s default.” Pursuant to this lease provision, the landlord reentered the premises without notice on January 18, 1991 after business hours when the tenants were not present, evicted the tenants by changing the locks on the doors, and prepared and rerented the premises.

1. There is no merit to the tenants’ claim that the landlord wrongfully evicted them without notice or resort to dispossessory proceedings. “[A] landlord may contract to avoid [the statutory notice and other requirements of dispossessory proceedings set forth in OCGA § 44-7-50 et seq.] when renting property which is not to be used as a dwelling-place.” (Emphasis in original.) Colonial Self Storage &c. v. Concord Properties, 147 Ga. App. 493, 495 (249 SE2d 310) (1978). The landlord was entitled to rely upon the default provisions in the commercial lease agreement, which gave him the right to reenter and take possession without notice or resort to legal proceedings, and he acted pursuant to the terms of the lease in reentering and taking possession of the premises for rerental upon default by the tenants for nonpayment of rent. Id.; Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 473-474 (260 SE2d 867) (1979); Eason Publications v. Monson, 163 Ga. App. 370, 371 (294 SE2d 585) (1982). Accordingly, we also conclude that the trial court properly granted summary judgment in favor of the landlord on the tenants’ claims for trespass, breach of the implied covenant of quiet enjoyment of the premises, and breach of the terms of the lease agreement. Compare Entelman v. Hagood, 95 Ga. 390 (22 SE 545) (1894); Real Estate Loan Co. v. Pugh, 47 Ga. App. 443 (170 SE 698) (1933); Teston v. Teston, 135 Ga. App. 321 (217 SE2d 498) (1975); and Forrest v. Peacock, 185 Ga. App. 189 (363 SE2d 581) (1987), rev’d on other grounds 258 Ga. 158 (368 SE2d 519) (1988) (cases dealing with actions for trespass for wrongful eviction of residential tenants); compare Albert Properties v. Watkins, 143 Ga. App. 184 (237 SE2d 670) (1977) (action for breach of residential tenant’s right to quiet enjoyment of the premises); compare Swift Loan &c. Co. v. Duncan, 195 Ga. App. 556 (394 SE2d 356) (1990) (action for trespass for self-help eviction of a commercial tenant, where there was also evidence that the landlord’s actions were in violation of the terms of the commercial lease agreement).

2. There was no error in the trial court’s grant of summary judgment in favor of the landlord on the claim that the landlord breached an oral agreement to accept late payment of the rent. There was no consideration to support such an agreement (see Clark v. GMAC, 185 Ga. App. 130, 136 (363 SE2d 813) (1987); Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590, 591 (309 SE2d 813) (1983)), and any oral agreement was voided by the express provision of the lease stating that, “[t]his Lease contains the entire agreement of the parties hereto and no representations, inducements, promises or agreements, oral or otherwise, between the parties, not embodied herein, shall be of any force or effect.” Clark, supra at 134; Great American Builders v. Howard, 207 Ga. App. 236, 240 (427 SE2d 588) (1993). The tenants’ additional claim on appeal that the landlord waived the right to timely payment of rent by previous acceptance of late payments was not raised in the trial court and presents nothing for appellate review. Lamb v. Georgia-Pacific Corp., 194 Ga. App. 848, 850 (392 SE2d 307) (1990).

3. Contrary to the tenants’ contentions, where under the terms of a commercial lease a landlord has the right to reenter and take possession of the premises without recourse to legal proceedings, he may do so and effect a self-help eviction if this can be accomplished without a breach of the peace. See generally Moss v. Chappell, 126 Ga. 196, 208 (54 SE 968) (1906); Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542, 545-546 (23 SE 835) (1895). There is no evidence in this case that the landlord’s actions caused a breach of the peace. See Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110-111 (387 SE2d 144) (1989); Hill v. Fed. Employees Credit Union, 193 Ga. App. 44, 47-48 (386 SE2d 874) (1989); Deavers v. Standridge, 144 Ga. App. 673, 674-675 (242 SE2d 331) (1978).

4. Tenants claim the trial court erred in granting summary judgment for the landlord for rent accruing after they were evicted. Although “[generally, when a landlord evicts a tenant and takes possession of the premises, the lease is terminated and the right to claim rent which accrues after eviction is extinguished,” the lease may provide otherwise. Peterson v. P. C. Towers, L.P., 206 Ga. App. 591 (426 SE2d 243) (1992). “[T]he parties to a lease agreement may contract in advance to hold the lessee liable for rent even after an eviction, deducting therefrom only the amounts recovered by the lessor from reletting the premises if such an agreement is premised on the existence of an explicit and detailed provision in the lease which clearly and unequivocally expressed the parties’ intention to hold the lessee responsible for after-accrued rent even should an eviction take place.” (Citations and punctuation omitted.) Id. at 591-592; Hardin v. Macon Mall, 169 Ga. App. 793 (315 SE2d 4) (1984).

Decided January 28, 1994

Reconsideration denied February 15, 1994.

Alan I. Begner, Penny M. Douglass, for appellants.

Alston & Bird, A. McCampbell Gibson, T. Michael Tennant, for appellee.

The language used in the present lease was a clear expression of the parties’ intention that after reentry by the landlord to take possession of the premises for rerental, the tenants remained liable for accruing rent and were responsible to the landlord for the difference between the tenants’ rent accruing under the lease and the rent obtained by reletting. There is no merit to the tenants’ contention that the lease provisions were ambiguous. As the record stands, it is undisputed that the tenants’ rent accruing under the lease after eviction was $287,500, and that the landlord’s efforts to relet the premises generated rentals of $38,670, leaving a deficiency of $248,830. There was no error in the trial court’s grant of summary judgment in favor of the landlord on his counterclaim.

Judgment affirmed.

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

       The issue was not raised, and we do not address the contractual responsibility to mitigate damages which may be imposed on a landlord who reenters the premises pursuant to a lease provision as the tenant’s agent for the purpose of reletting the premises.


text:
    A93A2105.
    DEPARTMENT OF TRANSPORTATION v. LAWRENCE et al.
    (441 SE2d 81)
   McMurray, Presiding Judge.

The Department of Transportation (“DOT”) brought this condemnation proceeding against 0.101 acres of land belonging to Hubert Lawrence and Alice Lawrence. The proceeding was brought to enable the DOT to change the slope of an embankment and increase visibility at an intersection. The Lawrences’ house is situated approximately 80 feet from the side of the road.

Decided February 1, 1994

Reconsideration denied February 15, 1994

Michael J. Bowers, Attorney General, McClure, Ramsay & Dickerson, John A. Dickerson, Elizabeth F. Moore, for appellant.

Stanley R. Lawson, Charles B. Brown, for appellees.

The case was tried to determine just and adequate compensation for the property taken and consequential damages to the remainder. The jury returned a verdict in favor of the Lawrences for $19,400. Judgment was entered in accordance with the verdict and this appeal followed. Held:

In its sole enumeration of error, the DOT asserts the trial court erred in charging the jury as follows: “In determining whether or not to award consequential damages, you may consider all of the factors affecting the value after the taking — of value of the property after taking and applying it to highway construction including, but not limited to, traffic noises, loss of privacy, if such has been shown to you by the evidence, and such as will render it useless for the purposes for which it was constructed.” (The authority for this charge was the case of AGS Embarcadero Assoc. v. Dept. of Transp., 185 Ga. App. 574 (365 SE2d 125).) Specifically, the DOT posits that the phrase “will render it useless” required the jury to assume as a fact that proximity damages rendered the house useless as a dwelling place. We disagree.

“A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall.” Brown v. Matthews, 79 Ga. 1, 7 (1) (4 SE 13).

Viewing the charge as a whole, as we are bound to do, State Hwy. Dept. v. Ferguson, 112 Ga. App. 875, 876 (2) (147 SE2d 18), it is clear that the trial court left the issue of proximity damages vel non to the jury. The quoted portion of the charge makes that clear: The trial court instructed the jury that it could consider such damages “if such has been shown ... by the evidence. . . .” Besides, the trial court went on to charge the jury, in its very next breath: “Thus, you may also consider the testimony as to the value, cost of construction expenses to move the house as a part of the consequential damages if you find such are required in the use of the properties.” (Emphasis supplied.) We find no error.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2588, A93A2589.
    BEN FARMER REALTY COMPANY et al. v. WOODARD; and vice versa.
    (441 SE2d 421)
   Andrews, Judge.

After Woodard purchased a house, she discovered structural damage in the attic caused by a fire which occurred prior to the purchase. She sued the seller and the real estate agents for the seller, Ben Farmer Realty Company and Rubin, claiming they fraudulently induced her to enter into the sales contract by concealing the fire damage. Ben Farmer Realty and Rubin moved for summary judgment, and the trial court granted the motion in part and denied it in part. Case No. A93A2588 is the interlocutory appeal granted by this court to Ben Farmer Realty and Rubin from the partial denial of summary judgment. Case No. A93A2589 is the cross-appeal of Woodard from the partial grant of summary judgment.

A purchaser claiming to have been fraudulently induced into entering a sales contract has an election of remedies involving rescission or affirmation of the contract. Tuttle v. Stovall, 134 Ga. 325 (67 SE 806) (1910); Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977). One remedy is to promptly after discovery of the fraud rescind the contract, and after offering to restore the benefits received under the contract or showing a sufficient reason for not doing so, sue in tort for recovery of the purchase price and for any additional damages resulting from the alleged fraud. Price v. Mitchell, 154 Ga. App. 523, 524 (268 SE2d 743) (1980); Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 590 (411 SE2d 518) (1991); Brown v. Techdata Corp., 238 Ga. 622, 625-627 (234 SE2d 787) (1977); McBurney v. Woodward, 86 Ga. App. 629, 632-634 (72 SE2d 89) (1952). The other remedy is to affirm the contract and sue for damages resulting from the alleged fraud. Weaver v. ABC Bus, 191 Ga. App. 614, 615 (382 SE2d 380) (1989); Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 856 (294 SE2d 533) (1982). Such “[a] suit for damages by the defrauded party for the fraud committed is not a suit for the violation of the contract, but is one for a tort and involves affirmance of the contract, and [the defrauded party] may keep the fruits of the contract and maintain an action for the damages suffered by reason of the fraud. [Cit.] It can not be said that merely affirming the contract by the defrauded party will necessarily deprive him of the right to sue for damages for the fraud inducing him to make the contract, as the right to affirm the contract and the right to sue for damages for the fraud coexist.” Tuttle, supra at 329; Carpenter v. Curtis, 196 Ga. App. 234, 236 (395 SE2d 653) (1990). In such a tort action the defrauded purchaser may seek as damages the difference in the value of the property sold to him and its value if the property had been the same as it was represented to be. Gem City Motors v. Minton, 109 Ga. App. 842, 845-846 (137 SE2d 522) (1964). Although the suit is an independent action in tort, it is based on the defrauded party’s election to affirm the contract, and sue for damages resulting from the fraud arising out of the contract. Having elected to affirm the contract, the defrauded party is bound by its terms and is subject to any defenses which may be asserted by the other party based on the terms of the contract. Mitchell v. Head, 195 Ga. App. 427, 428 (394 SE2d 114) (1990); Weaver, supra at 615; American Demolition v. Hapeville Hotel Ltd. Partnership, 202 Ga. App. 107, 109 (413 SE2d 749) (1991).

In its order on the defendants’ motion for summary judgment, the trial court granted summary judgment in favor of all defendants on Woodard’s tort claim for fraud on the basis that Woodard sought to rescind the contract and sue in tort, but failed to restore or offer to restore the contract benefits as required in a tort action based on rescission. The trial court also ruled that summary judgment was denied as to breach of contract claims brought by Woodard against Ben Farmer Realty and Rubin, finding questions of fact raised by the terms of the contract.

The complaint and remaining record in the case clearly show that Woodard sought to affirm the contract, and sued for damages resulting from the alleged fraud. There is nothing in the record indicating any effort by Woodard to rescind the sale. Her suit was one in tort for the amount of the structural fire damage to the house (essentially seeking the difference between the actual value of the house as sold and its value as she claims it was represented), plus punitive damages and attorney fees. Woodard correctly argues in her cross-appeal that a failure to offer to restore benefits was not a proper basis for dismissal of her tort claim. Ben Farmer Realty and Rubin also correctly contend that there was no breach of contract claim upon which to find an issue of fact.

The issue in this case is whether Ben Farmer Realty and Rubin were entitled to summary judgment on Woodard’s tort claim based on affirmation of the sales contract, and a suit for damages claiming she was fraudulently induced to enter into the sales contract. “As was pointed out by this court in Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141), fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. Traditionally, the rule of caveat emptor had applied and the sales contract merged into the warranty deed and foreclosed any right of remedy by the purchaser after the closing of the contract by transfer of the deed. See Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919). Wilhite, supra, changed the rule of caveat emptor and placed upon the [seller] a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction.” Mulkey v. Waggoner, 177 Ga. App. 165, 166 (338 SE2d 755) (1985); Fincher v. Bergeron, 193 Ga. App. 256, 258 (387 SE2d 371) (1989).

Woodard makes varying statements in support of her fraud claim. In her deposition, she claims that someone knew about the fire damage and did not tell her. In an affidavit in opposition to summary judgment, she states that she relied upon representations that the house was structurally sound and in good repair. She apparently also claims that certain language in the sales contract was deliberately designed to mislead her.

First, we deal with the claim of passive concealment. “In cases of passive concealment by the seller [or agent] of defective realty, the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect could not have been discovered by the buyer by the exercise of due diligence and that the seller [or agent] was aware of the problems and did not disclose them.” (Citations and punctuation omitted.) U-Haul Co. &c. v. Dillard Paper Co., 169 Ga. App. 280, 282 (312 SE2d 618) (1983). The house at issue was vacant residential property in obvious dilapidated condition. It is undisputed that even absent the fire damage in the attic, the house was not suitable to live in as sold, and was purchased by Woodard for $25,000 with the understanding that she would have to undertake substantial repairs. The sales contract, prepared by Woodard’s agent, contained a stipulation stating that the house was being sold “as is and no termite certificate will be issued.” Prior to the sale, Woodard inspected the house on two occasions with her agent. She found holes in the floor of the house, all the plumbing missing in one bathroom, a hole in the kitchen ceiling, and various other aspects of the house that needed repair. She understood that she was purchasing the house “as is” with all of these defects. During her inspection, she saw an access hole in the ceiling leading to the attic, was aware that she could have inspected the attic, but made no attempt to do so. After she closed on the property, and had already spent $23,000 on repairs to the house, she hired a contractor to install central heating and air. When the contractor went into the attic to determine duct placement, he discovered fire damage to the ceiling joists. Woodard testified that she could see the fire damage from the floor of the house through the access hole to the attic when the contractor pointed his flashlight straight up. Woodard obtained an estimate for repairing the damage in the amount of $13,892.93.

In her deposition, Woodard testified that she did not claim Rubin, who was a Ben Farmer Realty agent, knew about the fire damage, but claimed that “somebody knew and didn’t tell me about the fire.” Rubin and Ben Farmer Realty both stated that they had no knowledge of the fire damage. The seller testified that the house had been obtained by mortgage foreclosure from Shear, who mortgaged the house in an effort to do repairs. The seller was aware that there had been a fire at the house prior to Shear’s ownership, but testified he believed Shear had repaired the damage, and that he had no knowledge of the fire damage when he sold the house. When asked if it was conceivable that he told Rubin about the prior fire, he testified that though conceivable, he could not recall doing so.

On the present record there is no evidence that Rubin or Ben Farmer Realty knew about the fire damage, and it appears that Woodard conceded this fact in her deposition. Even if a question of fact existed as to whether the agents or the seller knew of the fire damage, under the circumstances, Woodard failed as a matter of law to exercise due diligence to discover the fire damage in the attic. Woodard knew the house was in a dilapidated condition with many major defects, and she agreed to purchase the house in its “as is” condition. She was obviously on notice to exercise a heightened degree of diligence in inspecting the house under these circumstances. When she inspected the house, she knew there was an accessible attic, knew she could have inspected the attic, and failed to do so. When she later discovered the fire damage in the attic, she testified the damage could be seen from the floor of the house through the access hole with the use of a flashlight. U-Haul Co., supra at 282; compare Mulkey, supra at 166; Fincher, supra at 259. Ben Farmer Realty and Rubin were entitled to summary judgment with respect to any claim for passive concealment.

Woodard also claims in an affidavit in opposition to summary judgment that she relied upon “the representation that the property was in reasonably sound structural condition and in a state of good repair. ...” She does not say who made these representations. In any event, having elected to affirm rather than rescind the sales contract, Woodard is bound by its terms. In addition to containing an entire agreement clause, the contract specifically provides: “[Purchaser acknowledges that [she] has not relied upon the advice or representations, if any, by Broker (or agents of Broker) relating to . . . the structural condition of the property. ...” Accordingly, Woodard is estopped from pursuing this claim for fraud, and the appellants were entitled to summary judgment. Weaver, supra at 615; Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 99-100 (325 SE2d 595) (1984); Touche, Inc. v. Dearborn, 161 Ga. App. 188, 192 (291 SE2d 35) (1982).

We find no merit in Woodard’s claim that the language of the sales contract, drafted by her own agent, providing that “the property is being sold ‘as is’ and no termite certificate will be issued,” was fraudulently designed to represent that possible termite damage was the only defect in the property.

Decided January 28, 1994

Reconsideration denied February 15, 1994

Lefco & Blumenthal, Stanley M. Lefco, Ned Blumenthal, Weiner, Shearouse, Weitz, Greenberg & Shawe, Aaron G. Weiner, Jeffrey W. Rubnitz, for appellants.

Clarence L. Martin, for appellee.

Although for the wrong reason, the trial court correctly granted summary judgment in favor of Ben Farmer Realty and Rubin with respect to all tort claims brought by Woodard. A grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (405 SE2d 61) (1991). The trial court erred in partially denying summary judgment and determining that questions of fact remain as to breach of contract or warranty claims. Accordingly, the partial denial of summary judgment is reversed in Case No. A93A2588, and the partial grant of summary judgment is affirmed in Case No. A93A2589.

Judgment affirmed in part in Case No. A93A2589, and reversed

in part in Case No. A93A2588.

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


author: Blackburn, Judge.

text:
    A94A0269.
    HANCOCK v. THE STATE.
    (441 SE2d 261)
   Blackburn, Judge.

Billy Hancock appeals his conviction for trafficking in cocaine. On appeal, Hancock enumerates as error the trial court’s denial of his motion for directed verdict and his motion for new trial. Hancock asserts that the evidence was insufficient for the jury to determine beyond a reasonable doubt that he was guilty of possessing twenty-eight grams or more of a mixture with a purity of ten percent or more of cocaine.

The State presented the testimony of its expert, a forensic chemist with 19 years of experience with the GBI crime lab, who testified that he had conducted approximately 25,000 to 30,000 tests for cocaine on substances submitted to him. The forensic chemist further testified, with regard to the present case, that he received eight bags of suspected cocaine with a total weight of 81.5 grams. He tested a small portion from four of the bags and determined that the substance was 69.2 percent pure cocaine. He could not testify as to the exact weight of the four bags tested as he did not weigh them individually. However, he testified that he knew that the four tested bags made up, at least, half of the total weight of all eight bags of substance, as he selected the heavier bags to test. He further testified that, in his opinion, the four tested bags weighed more than twenty-eight grams. All eight bags were admitted into evidence for jury review.

Decided February 4, 1994

Reconsideration denied February 15, 1994

McArthur & McArthur, John J. McArthur, for appellant.

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

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Williams v. State, 199 Ga. App. 566, 568 (405 SE2d 716) (1991). This case is less problematic than Means v. State, 188 Ga. App. 210 (372 SE2d 484) (1988), wherein we found sufficient evidence to support a conviction for possession of more than 28 grams of a mixture containing cocaine where the State’s forensic chemist failed to obtain the total weight of the 121 bags. In the present case, the total weight of the mixture equalled almost three times the amount required for the conviction and the chemist testified that he tested bags containing over half of the mixture. Viewed in the light most favorable to support the verdict, we find ample evidence from which a rational trier of fact could have found Hancock guilty of trafficking in cocaine.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0394.
    GENTRY v. THE STATE.
    (441 SE2d 249)
   Birdsong, Presiding Judge.

Cynthia Denise Gentry was indicted for malice murder, felony murder and aggravated assault; she was found not guilty of malice murder, guilty of voluntary manslaughter (the lesser included offense of felony murder), and guilty of aggravated assault. The trial court merged Count 3 (aggravated assault) with Count 2 (voluntary manslaughter). Held:

1. Appellant’s contention that the trial court erred by failing to reinstruct the jury on the duty to retreat when it recharged on self-defense is without merit. In order to correct a perceived charging deficiency, the jury was recalled immediately after they retired to commence deliberation and charged as to duty to retreat. Later when the jury sent a note asking, “does provocation matter in a charge of aggravated assault,” the State and defense acquiesced to the recharging of the justification defense in its totality, including therein an instruction regarding the duty to retreat. At this time the court charged, inter alia: “If the circumstances are sufficient to excite the fears of a reasonable woman that a felonious assault is about to be made upon her, and the accused, who is free from blame, is acting under the influence of such fears, then she has no duty to retreat.” Appellant has not enumerated as error any deficiency in the duty to retreat charges which were given.

Appellant has failed to provide an accurate page citation to the record in support of its claim that the jury requested a recharge as to the duty to retreat in conjunction with a request for a recharge on the theory of self-defense. We will not cull the record in search of error. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463). We have ascertained, however, that prior to posing the question regarding the relationship of justification to a voluntary manslaughter charge, the jury posed three other questions to the court, including: “Would self-defense fall under voluntary manslaughter.” In the presence of the jury, the trial court repeated the question at issue and rephrased it, without objection from counsel, as “whether the defense of self-defense is part of your consideration for voluntary manslaughter.” The trial court accurately answered the restated question and, after reminding the jury that they had already been instructed as to self-defense, invited them to inform the court if they wanted to hear that charge again. The jury did not make any subsequent request for a recharge either as to self-defense or as to duty to retreat. Moreover, the record fails to establish that the jury thereafter was confused as to either of these legal theories. Assuming without deciding that in certain instances a duty to recharge sua sponte might exist, under the circumstances here attendant, the trial court clearly was not required to give a sua sponte recharge. “It is within the trial court’s discretion to determine the need, breadth, and formation of additional jury instructions, and the decision to give additional instructions which addressed only the jury’s specific question is not an abuse of discretion.” Golden v. State, 263 Ga. 521 (3) (436 SE2d 11). Abuse of discretion has not been shown.

2. Appellant asserts the trial court erred in denying her motion to dismiss based on the State’s failure to disclose exculpatory evidence “pertaining to the presence of a knife within decedent’s reach.” Appellant argues in support of this enumeration that, although trial defense counsel filed several discovery motions, counsel was never told there was a knife on the dashboard of the car located within inches of the decedent and was never given access to exculpatory and pertinent evidence that would tend to support appellant’s self-defense claim.

Examination of the record reveals that, contrary to appellant’s contentions, her counsel was aware before trial of the photograph showing the shadowed presence of the knife on the car’s dashboard inches away from where the victim was sitting; additionally, appellant was provided access to documents found to be exculpatory as a result of the trial court’s in-camera inspection of the State’s file. Appellant does not claim on appeal that the trial court erred by failing to make known to appellant all exculpatory material found in the State’s file. Rather, the record reflects appellant was made aware of the existence and location of the knife, together with photographic evidence thereof and all related documentary materials, at least during trial. No reversible error exists as claimed by appellant. Leary v. State, 260 Ga. 730 (4) (399 SE2d 63). There can be no harm when the material for which pretrial disclosure is sought is known to or is in the possession of the defendant during trial. Bromley v. State, 259 Ga. 377 (2) (380 SE2d 694).

3. Appellant asserts the trial court erred in denying her mistrial motion after the State placed her character in issue by labeling her an alcoholic. In response to the prosecutor’s cross-examination question whether the witness, an adult probation officer, must have known that decedent still had a drinking problem, the witness gave a partially non-responsive answer that both decedent and appellant were enrolled in an alcohol recovery program in which decedent enrolled himself and to which appellant elected to go as his wife. The prosecutor then asked if the witness “knew they were both alcoholics,” and the witness replied, “I have never heard that.” The witness was then asked if appellant had told him that she had been drinking the night of the incident, and replied that he did not remember the appellant stating what her condition was that night, but that she had stated the decedent had been drinking. Finally just before the witness was excused, the prosecutor asked the witness whether, when he saw the defendant last with her husband, it was obvious to the witness that appellant had quit drinking. The witness responded that the decedent looked happy and great and that both decedent and appellant admitted to being in a recovery group in therapy. Appellant elected not to pose either a timely objection or an immediate motion for mistrial following any of this colloquy, and did not pose a mistrial motion until after the witness had been excused and the jury had retired. During an out-of-court colloquy, appellant’s counsel for the first time moved for a mistrial based on the following limited grounds: “I understand that if this case is ever reviewed, I made a tactical decision not to make a simultaneous motion, but that was because of the witness’ negative response to the question. But at this time, out of the presence of the jury, I am going to motion for mistrial based on the question you knew that Mrs. Gentry was an alcoholic.” (Emphasis supplied.)

Any claim of error in denial of the mistrial motion was waived. Appellant’s counsel admitted on the record that for tactical purposes, he elected not to make a mistrial motion at the time the question was asked. “A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841); accord Anderson v. State, 199 Ga. App. 559 (2) (405 SE2d 558); Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (waiver though motion made two questions later after jury removed). In this instance, numerous questions were posed and answers given between the time the specific question objected to was asked and the motion for mistrial ultimately made. Additionally, assuming the issue had been preserved for appellate review, we are satisfied that any error was harmless under the standards of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

4. Appellant asserts the trial court erred by expanding the third count of the indictment of aggravated assault by use of a dangerous weapon to include assault with intent to murder.

Count 3 of the indictment of aggravated assault avers that the offense was committed against the victim, Dawson, “by shooting him with a pistol, a deadly weapon.” The indictment contains no averment of the specific intent offense of aggravated assault with intent to murder. Nevertheless, the trial court initially charged the jury that an “aggravated assault occurs when that person assaults another person with the intent to murder or assaults another person with a deadly weapon.” (Emphasis supplied.) Further, shortly before the jury returned its verdict, the trial court recharged the jury as to justification, the duty to retreat, and aggravated assault. Once again the trial court charged that a “person commits aggravated assault when that person assaults another person with the intent to murder or assaults another person with a deadly weapon.” (Emphasis supplied.) No attempt was made by the trial court to tailor these aggravated assault charges so that the jury could understand how they applied to the differing charges of felony murder with aggravated assault by shooting with a pistol as the underlying felony (which arguably could be committed, as generally averred, either by shooting with intent to murder or by assault with a deadly weapon or both) and as to aggravated assault which was expressly averred to have been committed in one manner (by assault with a deadly weapon).

In determining the particular form of an offense of which an offender has been indicted, it is essential to examine the averments of the indictment, as contrary to the rules in civil cases, “indictments are not deemed amended to conform to the evidence.” Tuggle v. State, 145 Ga. App. 603, 605 (2) (244 SE2d 131). Moreover, this court has recognized that if an indictment avers that an offense is committed in one particular way, the proof must so show it, or there will exist a fatal variance. Ross v. State, 195 Ga. App. 624 (1b) (394 SE2d 418); compare Feagin v. State, 198 Ga. App. 460, 461 (2) (402 SE2d 80). While normally reversible error mandating new trial will not occur merely by charging an offense in terms of all its statutory elements (Diaz v. State, 194 Ga. App. 577, 578 (1) (391 SE2d 140)), error can result from charging as to inapplicable statutory elements where the jury can be confused or misled into believing that they are authorized to reach a finding of guilty by a theory not supported by the evidence of record or by the scope of the averments in the indictment. See Anderson v. State, 262 Ga. 26 (1) (413 SE2d 732); cf. Vaughan v. State, 210 Ga. App. 381, 384 (4a) (436 SE2d 19).

Appellant was found not guilty of malice murder, not guilty of felony murder but guilty of voluntary manslaughter, and guilty of aggravated assault in Count 3. The trial court instructed the jury that an essential element of aggravated assault includes assault and defined the term. Qualified jurors under oath are presumed to follow the instructions of the trial court. Harris v. State, 202 Ga. App. 618, 620 (3c) (414 SE2d 919). Thus, to find appellant guilty of an aggravated assault, committed by any means, the jury had to find that appellant assaulted the victim; likewise, the jury per force had to reject appellant’s justification and self-defense claims. At trial appellant testified that, during an argument, the victim reached for a knife; this terrified appellant who reached for her gun and slid out of the car. Appellant then made an admission in judicio that when she slid out of the car, she “aimed the gun at [the victim] and started shooting”; she shot twice. The next thing appellant remembered was “standing over [the victim], he was laying on the ground, and I raised my arm up, and I shot him again”; she does not know why she did that. Moreover, this testimony constituted an admission that appellant assaulted the decedent by shooting at him with a gun; that the gun was a deadly weapon is conclusively established by the death of the victim from the gunshot wounds. A simple assault becomes aggravated when it is perpetrated by use of a deadly weapon. See generally Turner v. State, 205 Ga. App. 745 (423 SE2d 439). We are satisfied beyond a reasonable doubt that in essence charging the entire statute pertaining to aggravated assault, without tailoring the charge to conform to the various averments, did not under the attendant circumstances contribute to the guilty verdict of aggravated assault as averred in Count 3. Thus even if charging error had occurred it would have been harmless beyond a reasonable doubt. See Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756). Additionally, by merging appellant’s conviction of aggravated assault into the voluntary manslaughter conviction and sentencing appellant as a first offender, the trial court precluded the remotest possibility of actual prejudice to appellant flowing from the contested aggravated assault charge.

Decided February 1, 1994

Reconsideration denied February 15, 1994.

Venice R. Daley, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Shawn E. Lagrua, Assistant District Attorneys, for appellee.

5. Contrary to appellant’s claims of insufficiency of the evidence, we find the evidence sufficient to support her convictions of both offenses under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A92A1325.
    KORITTA v. THE STATE.
    (443 SE2d 13)
    Decided February 15, 1994.

      Michael M. Sheffield, for appellant.

      J. Tom Morgan, District Attorney, J. George Guise, Elisabeth Macnamara, Assistant District Attorneys, for appellee.
   Blackburn, Judge.

This court affirmed the appellant’s conviction for voluntary manslaughter in Koritta v. State, 206 Ga. App. 228 (424 SE2d 799) (1992), after concluding that the trial court did not err in failing to instruct the jury on justification. The Supreme Court of Georgia subsequently reversed that judgment in Koritta v. State, 263 Ga. 703 (438 SE2d 68) (1994). Accordingly, this court’s prior judgment is vacated and the judgment of the Supreme Court is hereby made the judgment of this court.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A1743.
    ROTHROCK v. JETER.
    (441 SE2d 88)
   Cooper, Judge.

Defendant Rothrock owned a tractor-trailer truck which he leased to C & N Evans Trucking Company, Inc. (C & N) pursuant to a written agreement. Rothrock operated his truck for C & N in interstate commerce as an independent contractor. Plaintiff Jeter, an employee of C & N, was injured on the premises of C & N while assisting Rothrock in uncoupling his rig. Jeter accepted workers’ compensation benefits from C & N and initiated the instant tort action against Rothrock. Rothrock moved for summary judgment on the ground that he was immune from tort liability under the exclusive remedy provisions of OCGA § 34-9-11 (a), contending alternatively that he was a fellow servant to Jeter or that Jeter was his borrowed employee. The trial court denied this motion, but certified its order for immediate review. We granted Rothrock’s application for interlocutory appeal, and a timely notice of appeal was filed.

1. In his first enumeration of error, Rothrock contends that he and Jeter are employees of the same employer, such that a common law tort action against Rothrock as a fellow servant of Jeter is barred. OCGA § 34-9-11 (a) provides: “The rights and the remedies granted to an employee by [the Workers’ Compensation Act] shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract . . . exists between the injured employee and the person providing the benefits.” (Emphasis supplied.) “[OCGA § 34-9-11 (a)] bars an employee’s action for negligence against a fellow employee.” Williams v. Byrd, 242 Ga. 80, 81 (247 SE2d 874) (1978). In support of his contention that he is an employee of the same employer as Jeter, Rothrock relies upon Garrett v. Superior Trucking Co., 162 Ga. App. 558 (290 SE2d 528) (1982). There, Garrett leased his truck to Superior Trucking Company, an interstate carrier. Garrett was injured at a Superior facility while acting as his own driver on an interstate trip for Superior. He accepted workers’ compensation benefits from Superior’s insurer but nevertheless brought a tort action against Superior. Despite language in their agreement indicating that the parties intended to create the relationship of carrier-independent contractor rather than employer-employee, we held that Superior, having paid workers’ compensation benefits to Garrett, was deemed to be Garrett’s statutory employer pursuant to OCGA § 34-9-8 (a) and immune from tort liability pursuant to OCGA § 34-9-11 (a). Garrett, supra at 559. Contrary to Roth-rock’s contention, however, Garrett does not stand for the proposition that a person who is deemed to be an employee of a statutory employer, with regard to the determination of that person’s own right to compensation from the statutory employer, is thereby a fellow servant or an “employee of the same employer” within the provision of OCGA § 34-9-11 (a) so as to provide that deemed employee with immunity from tort liability to the statutory employer’s own direct employees.

In the statutory definition of an “employee” under the Workers’ Compensation Act, OCGA § 34-9-1 (2) distinguishes between an independent contractor and an employee as follows: “A person shall be an independent contractor and not an employee if such person has a written contract as an independent contractor and if . . . such person otherwise qualifies as an independent contractor.” In this case, Roth-rock is an independent contractor pursuant to a written agreement with C & N and Jeter is a direct employee of C & N. “True, [Roth-rock] is also a statutory employee of [C & N]. This is not to say, however, that [Rothrock] and [Jeter] are employees of the ‘same employer’ within the meaning of OCGA § 34-9-11 [(a)].” Long v. Marvin M. Black Co., 250 Ga. 621, 623 (300 SE2d 150) (1983). “[A] party enjoying tort immunity must have given some quid pro quo, . . . namely, liability [to the injured employee] for workers’ compensation benefits. [Cits.] . . . [Rothrock], who has no potential liability for workers’ compensation benefits with respect to [his statutory employer’s employees], . . . has given no quid pro quo and is therefore . . . not entitled to tort immunity [on the ground that he is a fellow servant to the injured party].” Cleveland Elec. Constructors v. Craven, 167 Ga. App. 274, 275 (306 SE2d 364) (1983). Accord Paz v. Marvin M. Black Co., 200 Ga. App. 607 (2) (408 SE2d 807) (1991). See also Yoho v. Ringier of America, 263 Ga. 338, 341 (434 SE2d 57) (1993). Accordingly, we conclude that the immunity afforded “an employee of the same employer” does not extend to independent contractors who nevertheless are deemed to be employees of a statutory employer in a tort action brought against the independent contractor by a direct employee of that statutory employer of the independent contractor and the trial court correctly denied Rothrock’s motion for summary judgment. See Long v. Marvin M. Black Co., supra.

2. Rothrock also contends that, at the time of the injury, Jeter was a borrowed servant of Rothrock’s such that Rothrock enjoyed immunity from tort liability as a statutory employer. “A special master employing a special servant who is a general servant of a general master ... is not such a third person against whom a common-law action will lie under the provisions of the [Workers’] Compensation Law, as provided in [OCGA § 34-9-11 (a)].” Scott v. Savannah Elec. &c. Co., 84 Ga. App. 553, 557-558 (66 SE2d 179) (1951). “Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him. [Cits.]” Merry Bros. Brick &c. Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969). “[I]n order for an employee to be a borrowed employee, the evidence must show that ‘(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.’ [Cit.]” Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981). Moreover, “in order for a borrowed servant to be precluded from suing the special master in tort there must be notice to and assent by the borrowed servant as to the special relationship.” Six Flags Over Ga. v. Hill, supra at 378 (2) (citing and distinguishing Georgia-Pacific Corp. v. Corbin, 137 Ga. App. 37 (222 SE2d 862) (1975)).

Decided February 15, 1994.

Chambless, Higdon & Carson, Mary M. Katz, for appellant.

R. Lars Anderson, for appellee.

In support of his contention that Jeter was his borrowed servant, Rothrock submitted his own affidavit stating that he had “the exclusive right to control and direct” Jeter on the particular task of assisting Rothrock in uncoupling the truck. However, Jeter swore in opposition that Rothrock’s truck was parked in a manner which prevented Jeter from reaching his own assigned loading dock with his own vehicle and that he gave Rothrock logistical instructions to maneuver Rothrock’s truck out of the way. Accordingly, there remains a factual issue as to Jeter’s status as a “borrowed employee” under the applicable test. Rothrock’s reliance upon Jarrard v. Doyle, 164 Ga. App. 339 (297 SE2d 301) (1982), is misplaced. There, it was undisputed that the general master directed the injured employee to assist a contractor on the general master’s premises and the employee assented. Rothrock’s motion failed to establish the non-existence of every material fact as to whether Jeter was his borrowed employee at the time of the injury. The trial court correctly denied Rothrock’s motion for summary judgment on this ground.

3. Rothrock’s remaining enumeration as to the binding effect of an order denying summary judgment has been considered and is found to be without merit.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1954.
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. GOTTSCHALK.
    (441 SE2d 281)
   Andrews, Judge.

United Services Automobile Association (USAA) appeals from judgment entered on the jury’s finding that a policy of insurance was in place on Gottschalk’s automobile when his son was involved in an accident on September 9, 1988.

1. USAA’s first enumeration is that the court erred in not granting its motion for j.n.o.v.

“ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.’ [Cit.] Even ‘slight’ evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm &c. Ins. Co., [174 Ga. App. 194 (330 SE2d 1) (1985)]. Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for the jury resolution.” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 301 (3) (352 SE2d 185) (1986). The same standard applies when considering the denial of a j.n.o.v. Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 112 (1a) (372 SE2d 265) (1988), aff’d 259 Ga. 376 (382 SE2d 597) (1989); Ostroff v. Coyner, 187 Ga. App. 109, 115 (3b) (369 SE2d 298) (1988).

Here, USAA moved for directed verdict on the sole ground that “at the time the notice of cancellation was sent out to Mr. Gottschalk he was clearly 60 days or more in arrears [on his premium payments].”

Viewed with all inferences in favor of Gottschalk, the evidence was that he had carried insurance with USAA since 1969, including home and automobile insurance. The 1983 Subaru involved in the wreck was listed on the policy, along with three other automobiles. On June 16, 1988, USAA issued an “Amended Declarations” page, reflecting the auto policy’s renewal date of July 6, 1988 to January 6, 1989. The policy itself stated that “if this is a renewal or continuation policy, we will cancel only: a. for nonpayment of premium; or [reasons not involved here].”

Prior to 1988, if payments were not timely, USAA had included on the face of the premium notices a statement that the account was delinquent; a certain amount needed to be paid by a certain date; if not paid and the account became 60 days delinquent, the policy would be cancelled. USAA is a membership association and the membership objected to this language. In its place, the following appeared: “Amount billed on previous statement was not received by closing date. If you have made a recent payment that is not shown on this statement, please subtract it from the payment plan of your choice and remit the difference. Thank you.”

Each notice contained a “closing date,” for example, December 21, 1987, and a “next closing date,” for example, January 21, 1988. The removable payment coupon stated, for this example, “To avoid a late fee, payment is due in our office by 01-11-88.”

Gottschalk lived in Perry and was working in north Georgia as a real estate appraiser. For that purpose, he maintained an Atlanta apartment and returned home on the weekends. His wife picked up the mail at their post office box and left bills on his desk for his attention on the weekends. His practice was to pay the bills once a month.

The premium notices provided three payment options, payment in full, payment by the “regular plan,” and payment on the “extended plan.” This last option provided for the lowest periodic payment, required monthly, and was used by Gottschalk. In 1987, Gottschalk experienced some financial difficulties and was one payment behind. He contacted the 800 number maintained by US A A and was told that if a payment had been sent late and crossed the next billing statement in the mail, the payment would not have been credited. In that case, Gottschalk was told to deduct “that payment from the current billing statement and pay the balance, . . . and that’s what I’ve been doing ever since 1987 and there’s never been anything to alert me to the fact that that’s not something that they wanted me to do.” The payment history of Gottschalk reflected that payments were made in this fashion throughout 1988. The last statement received by Gottschalk was that showing a closing date of August 19, 1988, and no “next closing date.” The statement of mailing by USAA reflected this statement had been mailed on August 23, 1988 from San Antonio, Texas. This statement included a cancellation notice that the account had not been paid as required and that the insurance “will be cancelled for nonpayment of premium . . . effective September 7, 1988.” It further provided that, upon receipt of payment postmarked before September 7, 1988, the coverage would continue. The amount shown as due was $821.65. This statement was not opened by Gottschalk until after the September 9 wreck.

In response to the statement showing next closing date of July 21, 1988, Gottschalk sent a payment for $269.55 on August 21, 1988. He received the statement with next closing date of August 19, 1988, which showed a total premium due of $545.60 and did not reflect the $269.55 payment. At this point, Gottschalk believed that he was only 30 days in arrears and not subject to cancellation under the terms of the policy and the notices printed on the statements. On September 19, he sent $276.05, the remainder of the $545.60.

When Gottschalk had called to report the accident, sometime between its occurrence and September 19, he was told that there was some question about coverage.

On September 19, he opened the last statement, including the cancellation notice, as well as a letter dated August 26, 1988. That letter acknowledged the payment of $269.55, but stated that USAA was holding the partial payment “pending receipt of the additional amount of $552.10 postmarked prior to September 7, 1988. If payment ... is not received as required, the cancellation will take effect and your partial payment will be returned.” On September 20, a postal money order for the $552.10 was sent by overnight mail to USAA. Gottschalk’s last two premium checks, including the one being held, were both processed by USAA on September 29, and no money was returned.

On September 21, USAA sent a letter reflecting cancellation effective September 7 and a “total return premium” of $590.68. This was explained as a computer resolution and no money was actually returned to Gottschalk. A “new” policy declaration was issued dated September 28, reflecting coverage from September 21, 1988 through March 21, 1989.

In 1986, Gottschalk had received a cancellation notice due to late payment but, upon payment, was notified that the cancellation was rescinded and coverage was continued without a lapse.

(a) In this light, it cannot be said as a matter of law that Gottschalk was 60 days in arrears on his payments and that the policy was legally cancelled. Therefore, this issue was appropriately left for the jury’s resolution. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (1) (392 SE2d 268) (1990).

(b) Even assuming, however, that the payments were 60 days in arrears, as alleged by USAA, this arrearage had existed since February 1988, according to the testimony of Nigrete, the USAA representative.

Therefore, the issue of mutual departure, OCGA § 13-4-4, was raised.

“While we recognize that a departure from the terms of a contract which is relied upon by one of the parties so as to require a notice of intention to insist on strict compliance with the original contract terms under the provisions of [OCGA § 13-4-4] must be mutual between the parties and intended, and must be such as, in law, to make practically a new agreement as to the stipulations contained in the original contract [cits.], yet, whether there has been such a mutual and intended departure so as to make practically a new agreement is generally a question for a jury to determine. [Cit.]” Continen tal Cas. Co. v. Union Camp Corp., 230 Ga. 8, 11 (1) (195 SE2d 417) (1973); Holland v. Allstate Ins. Co., 200 Ga. App. 668, 669 (1) (409 SE2d 79) (1991).

Such a finding, made by the jury under proper instructions and supported by “any evidence,” as here, is conclusive on this court. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 279 (4d) (407 SE2d 775) (1991); Gen. American Life Ins. Co. v. Samples, 167 Ga. App. 622 (1) (307 SE2d 51) (1983).

Therefore, the first enumeration is without merit.

2. The second enumeration contends USAA was entitled to a new trial under OCGA § 5-5-21. This ground is addressed to the trial court’s discretion alone and we cannot say that it was abused by denying the motion for new trial. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

3. At the time Nigrete testified, she wrote down the dates and amounts of payments, the due dates, and the date payment was processed by USAA on large pieces of paper. USAA tendered that chart, Exhibit 7, into evidence. While the court allowed counsel to use the exhibit during their arguments, it was not allowed out with the jury over the objection of Gottschalk, which is enumerated as error.

There was no error. In Housing Auth. of City of Atlanta v. Goolsby, 136 Ga. App. 156 (1) (220 SE2d 466) (1975), a witness in a condemnation case wrote computations on a blackboard, which the condemnor tendered into evidence. “The court properly excluded the evidence. ‘The best evidence of the expert witness’ opinion of the cost . . . was his own testimony to that effect, not the worksheet which he had prepared in order to assist him in presenting the testimony.’ [Cit.] The same is true where the recapitulation is placed on a blackboard; to allow it in the jury room would give double emphasis to the testimony. . . .” Id. at 156-157. See McClure v. State, 163 Ga. App. 236, 238 (3) (293 SE2d 496) (1982).

4. Finally, USAA enumerates the court’s holding that the policy and payment invoices were ambiguous and instructing the jury to resolve those ambiguities.

After giving the charge, the court directed that all the evidence, including the policy and the premium notices, be collected and given to the jury. He inquired if counsel had seen the documents and then stated that “I have reviewed the evidence in the case and those writings and I do find that there was an ambiguity in several of the writings and that the normal rules of construction . . . did not assist the Court sufficiently enough so that the Court can resolve the ambiguities, and as the result thereof I did turn the same over to the jury for their consideration.”

The only objection voiced was that USAA contended that the “policy language” was not ambiguous and it therefore objected to any charge on ambiguity.

Decided February 15, 1994.

Saveli & Williams, John C. Parker, Swift, Currie, McGhee & Hiers, Michael A. Ryder, Kelli A. Andrew, for appellant.

Geiger & Pierce, James N. Geiger, McKenney, Jordan & Carey, Jane M. Jordan, Martin, ' Snow, Grant & Napier, Cubbedge Snow, Jr., for appellee.

We find no error in the court’s analysis of this policy and the premium statements. See Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986); Copy Systems of Savannah v. Page, 197 Ga. App. 435, 436 (398 SE2d 784) (1990). Even accepting that there was no ambiguity in the policy itself, there was ambiguity in the “delinquency” message printed on the notices and the information on the back regarding the 30- and 60-day periods.

Judgment affirmed.

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

       The dates checks were written prior to the wreck were January 26, 1988; February 27, 1988; April 3, 1988; May 8, 1988; June 12, 1988; July 17, 1988; and August 21, 1988.


text:
    A93A2023.
    FITZGERALD RAILCAR SERVICES et al. v. STEVENS.
    (441 SE2d 91)
   Cooper, Judge.

Donnell Stevens was employed by Fitzgerald Railcar Services as a blaster. His duties involved removing paint from railroad cars and the heavy metal gates attached to the bottom of the cars. Stevens alleged that he was injured on February 20, 1991 while moving a 100-pound railcar gate. While the pain from the incident did not cause him to stop working, Stevens contended that he woke up the next morning with numbness down his left side. Stevens claimed he notified his supervisor of his injury three days after the incident, upon the supervisor’s return from vacation. However, the supervisor did not recall ever being informed of Stevens’ injury and never made an injury report. In late March, the supervisor noticed Stevens was favoring one side and learned Stevens was experiencing dizziness and numbness in his left leg. As a result, Stevens was assigned tasks which did not require as much heavy lifting and climbing. Stevens contended he still was troubled by the numbness in his leg and had great difficulty moving around. He continued to work until April 6, 1991. On April 8, Stevens’ wife notified the general manager that Stevens suffered a mild stroke, and thereafter, Stevens’ treatment was covered by the employer’s group health insurance plan.

Stevens was admitted to the hospital with severe left side numbness and weakness which resulted in impairment of his left side and difficulty in walking. A myelogram, performed by Dr. Domenic Esposito, revealed compression lesions at levels C5-6 and C6-7 in his neck which were causing pressure on his spinal cord. Dr. Esposito performed an anterior cervical diskectomy and an interbody fusion at the C5-6 and C6-7 levels and discovered at both levels significant arthritic bony overgrowth. Dr. Esposito testified that the bony overgrowth was worse at the C5-6 level and opined that it was not caused by one specific trauma but developed gradually over time. At the C6-7 level, Dr. Esposito discovered a soft disk herniation which he indicated could have resulted from routine, daily activities or trauma. Dr. Esposito explained that Stevens’ problems were more severe because his spinal canal was more narrow than usual.

After the surgery, Stevens was still considered severely debilitated, having difficulty walking and experiencing weakness, spasticity and tightness in his left-side extremities. On or about June 27, 1991, Stevens notified the employer of his intention to seek workers’ compensation benefits based on an alleged February 20th work-related injury. Because there was no record of any accident or injury to Stevens on that date and the employer had the impression that Stevens was on disability leave due to a mild stroke, the claim was controverted. The ALJ found that Stevens failed to show that he suffered an injury at work on February 20, 1991 and that he notified his supervisor of an injury on that date. Upon a de novo consideration of all the evidence, including a transcript of the hearing before the ALJ, the full board adopted the ALJ’s findings of fact and conclusions of law, only correcting the ALJ’s finding that Stevens had only recently begun to work for the employer in February 1991. On appeal in the superior court, Stevens contended the ALJ’s award contained several grossly misstated facts. The superior court agreed, finding that the award of the ALJ was made without the benefit of a transcript seven months after the hearing. Presuming that the full board’s award may have been influenced by the ALJ’s erroneous findings, the case was remanded to the full board for further consideration under a correct finding of facts. We granted the employer and its insurer’s application for discretionary appeal, and this appeal followed.

Appellants enumerate as error the superior court’s remand to the full board and the court’s failure to apply the “any evidence” rule. Relying on Aetna Ins. Co. v. Jones, 125 Ga. App. 471 (188 SE2d 180) (1972), appellee argues that several specific misstatements in the ALJ’s award justified the remand. In Aetna, this court recognized that “a misstatement of significant testimony will be ground for referral back to the board of an award otherwise supported by evidence where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.” Id. at 471. First, appellee took issue with the ALJ’s finding that “none of the treating physicians had any reference in their notes that this was a workers’ compensation claim or that claimant had been injured on the job.” (Emphasis supplied.) Appellee contends this finding is contrary to the evidence admitted at the hearing before the ALJ which included a statement by a Dr. Bill Day in which Dr. Day stated that appellee was treated in his office on three occasions and that appellee stated that he injured his back when he picked up a heavy gate at work. We do not find that this evidence contradicts the ALJ’s finding because Dr. Day’s statement indicates that he is a chiropractor, not a “physician” under the laws of this state. Glover v. Southern Bell Tel. &c. Co., 132 Ga. App. 74 (1) (207 SE2d 584) (1974). Accordingly, Dr. Day was not one of appellee’s “treating physicians.”

Appellee also contended that the ALJ mischaracterized Dr. Esposito’s testimony in finding that appellee’s medicals did not support appellee’s avowal that he told his treating physician about a work-related injury. Appellee specifically takes issue with the ALJ’s conclusion that Dr. Esposito would have interrogated appellee regarding his work history if appellee had indicated that the injury was work related. However, Dr. Esposito’s deposition shows that on redirect examination, Dr. Esposito testified that appellee claimed only that he woke up with a problem; that appellee never mentioned any trauma, accident or a pulling or a straining; and that had appellee done so, Dr. Esposito would have inquired further about how the symptoms started, what appellee was doing at the time and whether there was any particular event which might have caused the symptoms. Thus, the ALJ’s conclusion is consistent with the evidence of record.

Next, appellee argues that because he never contended that he gave his supervisor notice of his injury on February 20, 1991 the ALJ erred in finding that he failed to show that he gave notice of the injury to his supervisor on that date. Instead, appellee maintained that because the supervisor was on vacation on the 20th, appellee notified him upon his return, three days after the incident. While it is true that the ALJ specifically stated in its award that appellee failed to notify his supervisor of an injury on February 20, 1991 and that such was never appellee’s contention, we do not find that this misstatement erroneously influenced the award because that statement was not the extent of the ALJ’s findings on the issue of notice. The ALJ went on to find that “[i]t is clear that a back injury would have been reported by the supervisor if he was informed of one.” The ALJ found and the evidence shows that appellee was fully aware of the appropriate notification procedure for work-related injuries. On February 19, the day before the alleged injury, appellee attended a safety meeting with his supervisors in which the unusual frequency of his previous injuries was discussed. It appears that earlier in the same month, in one particular week, appellee was involved in three separate accidents on the job. Appellee notified his supervisor of each of the accidents, and as a result, treatment was provided as needed. Thus, the ALJ concluded that if appellee sustained an injury on February 20, 1991, it would have been reported like the other recent accidents. Moreover, the record likewise reveals that appellee’s superiors did not recall appellee ever giving notice of a work-related injury allegedly sustained on or about February 20. His immediate supervisor testified that he began to notice appellee favoring one side one month after the date alleged by appellee and that appellee’s condition was then discussed and appellee was subsequently assigned to less strenuous duties. However, appellee never attributed his problems to a specific injury on the job. Finally, when appellee ceased working on April 6, his wife reported that he suffered a mild stroke, and appellee subsequently filed under the employer’s group health insurance plan, not for workers’ compensation benefits. Therefore, the misstatement is immaterial (Gates v. Aetna Ins. Co., 128 Ga. App. 546, 547 (197 SE2d 381) (1973)) inasmuch as the evidence supports a finding that appellee neither notified his superiors of an injury on February 20, 1991 nor at any other time. See Container Corp. of America v. Gray, 205 Ga. App. 520 (422 SE2d 561) (1992).

Decided February 15, 1994.

Finally, appellee contends that the ALJ erred in finding that the evidence was insufficient to carry his burden of proof that trauma sustained on the job was sufficient to cause the injury diagnosed by Dr. Esposito. Appellee essentially argues that the ALJ’s finding is in contradiction to Dr. Esposito’s response to a hypothetical question in which the physician opined that under circumstances similar to the instant case there was a good possibility that the alleged trauma and the subsequent injury were related. In its award, the ALJ did acknowledge that the injury at the C6-7 level could have been the result of a single incident of trauma; however, the ALJ concluded that appellee failed to carry his burden of proof that the trauma did in fact occur at work because the evidence otherwise indicated that appellee did not consider a date and time of the incident until over 26 weeks after the alleged event. Therefore, there was no misstatement of the evidence which could have misled the board to justify a remand to the board.

Based on the foregoing, the superior court erred in recommitting the case to the Board of Workers’ Compensation for further proceedings.

Judgment reversed.

Beasley, P. J., and Smith, J., concur.

Rick F. Ellis, Jr., for appellants.

William V. Evans, for appellee.