text:
    A90A0021.
    BROWN v. DURDEN et al.
    (393 SE2d 450)
   Banke, Presiding Judge.

The appellant brought this action against physician Mark Durden and members of the latter’s office staff, seeking to recover damages for the alleged wrongful death of her husband resulting from a fall from an examining table in Durden’s office. She brings this appeal from the grant of the defendant-appellees’ motion for summary judgment.

The decedent had been a patient of Dr. Durden’s for approximately eight years prior to his death, during which time he had been treated for blackouts and seizures. On the day in question, the appellant had found her husband lying in their yard in an unconscious and incontinent condition. She telephoned Dr. Durden’s office and was instructed by a member of his office staff to bring her husband to the office immediately. Upon their arrival there, the appellant and her husband were escorted to an examination room by Dr. Durden’s medical assistant, who placed the decedent in a seated position on a “high level examining table.” While the evidence is in dispute with respect to the conversation which ensued, the appellant maintains that she informed the assistant that her husband had fallen and was experiencing dizziness and nausea due, she believed, to a seizure. After taking the patient’s blood pressure and temperature, the assistant departed the examining room, leaving the appellant alone with the decedent, who remained seated on the examining table. The decedent apparently suffered another seizure at this time, as a result of which he fell from the table to the floor, severely injuring his spinal column. He was rendered a quadriplegic by this injury and died some eight months later, after undergoing several surgical procedures and being confined to a nursing home.

The appellant alleged in her complaint that Dr. Durden’s assistant had acted negligently in placing her husband on the examining table and “failing] to provide assistance, remain with him, or take other precautions in order to prevent his injury” and that Dr. Durden was vicariously liable for the acts of his employee. She further alleged that “no health, medical, dental, or surgical service, diagnosis, prescription, treatment or care was being rendered” to the decedent at the time the injury occurred. Held:

The appellant contends that the trial court erred in concluding that her claim was predicated solely on medical malpractice and in therefore granting summary judgment to the appellees due to her failure to submit an expert’s affidavit with her complaint in accordance with OCGA § 9-11-9.1. We agree that this ruling was erroneous. “ ‘The requirement that expert testimony be adduced in a medical malpractice case is premised upon the existence in such a case of “medical questions” which control its resolution. [Cits.] “ ‘Medical questions’ ” may be defined as those “concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and the jury must be dependent on expert evidence.” [Cit.]”’ General Hosps. of Humana v. Bentley, 184 Ga. App. 489, 490-91 (361 SE2d 718) (1987). “[N]ot every suit which calls into question the conduct of one who happens to be a medical professional is a ‘medical malpractice’ action.” Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872) (1987). See also Self v. Exec. Committee of Ga. Baptist &c., 245 Ga. 548 (266 SE2d 168) (1980).

In Candler Gen. Hosp. v. McNorrill, supra, we held that no affidavit was necessary where the complaint alleged that a hospital orderly, in carrying out a physician’s orders to place an immobilizer on a patient’s knee preparatory to discharging him from the emergency room, had dropped and injured the patient while attempting to remove him from a stretcher, “[s]ince the decision to undertake the physical act of moving [the patient] did not involve any medical questions or the exercise of any professional medical judgment. ...” Id. 182 Ga. App. at 110-111. Accord Self v. Exec. Committee of Ga. Baptist &c., supra; Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988); Donson Nursing Facilities v. Dixon, 176 Ga. App. 700 (337 SE2d 351) (1985). Compare Chafin v. Wesley Homes. 186 Ga. App. 403 (1) (367 SE2d 236) (1988) (medical evidence held necessary where improper use of a catheter and wrongful administration of drugs were alleged); General Hosps. of Humana v. Bentley, supra (where post-operative medical condition of the patient was held to be decisive factor in determining degree of supervision necessary). In the present case, the appellees’ alleged liability does not turn on a “medical question,” and a jury would be capable of determining without the help of expert evidence whether Dr. Durden’s medical assistant exercised due care in leaving the decedent unattended and unrestrained on the examining table after he had been brought to the office suffering from dizziness and nausea following an apparent seizure. We accordingly hold that the trial court erred in granting the appellees’ motion for summary judgment.

Decided March 13, 1990

Rehearing denied April 10, 1990.

Lonzy F. Edwards, Brenda C. Youmas, for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, for appellees.

Judgment reversed.

Cooper, J. concurs. Birdsong, J., concurs in judgment only.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0350.
    In the Interest of T. M., a child.
    (393 SE2d 448)
   Birdsong, Judge.

Appellant T. M. is accused of the theft of more than two pounds of cocaine from the property room of the Hall County Sheriff’s Department, on a Sunday in April 1986. Evidence adduced shows that from September 1985 until September 1987, appellant T. M.’s mother served as custodian or property officer of the contraband kept in the vault; T. M. often used her keys and had access to the vault. In April 1986, T. M., with two friends, entered the annex where the property room was situated; thereafter, T. M. told four other friends that he had entered the property room and substituted flour for the cocaine. Appellant, who was born in October 1970, was more than fifteen years old at the time of this alleged event.

After a full hearing on the State’s motion to transfer, the juvenile court transferred the matter to Hall County Superior Court. This appeal follows the order to transfer. Held:

Appellant, under four enumerations of error, attempts to argue the merit of the prosecution and complains that the juvenile court deprived him of certain constitutional rights attaching to the prosecution for a crime. It is clear that the juvenile court did not attempt to adjudicate appellant’s culpability of the offense charged. Therefore, there has been no prosecution for the offense, and the constitutional rights which appellant vigorously complains he has been denied, have not attached or been irremediably violated. If any deficiency arguably has occurred, the time for appellate complaint is not ripe; we are confident appellant’s counsel is capable of bringing it to the superior court’s attention at the proper time.

The juvenile court clearly did not err in transferring the case to the jurisdiction of the superior court pursuant to OCGA § 15-11-39. The trial court properly rendered detailed findings of fact and conclusions as required by that statute. We find no error in the finding that T. M. is not amenable to treatment or rehabilitation, balancing the amenability factor against the interests of the community in processing T. M. as an adult. See In the Int. of J. J. S., 246 Ga. 617, 618 (272 SE2d 294).

Appellant was eighteen at the time of the transfer hearing. His age makes alternate placement difficult if not impossible. His history in juvenile court includes delinquency adjudications in two counts of burglary and six counts of motor vehicle theft. He had frequently stolen from his mother. Evidence showed his compliance with “after care” conditions on these delinquencies was unsatisfactory and unfulfilled. We find no basis to conclude that the court’s focus should have been primarily on the issue of T. M.’s amenability to rehabilitation. See In the Int. of J. J. S. Even if the trial court had focused on that issue of rehabilitation to the exclusion of the community interest, we could not find an adverse ruling to be an abuse of the juvenile court’s discretion in this case. See D. T. R. v. State, 174 Ga. App. 695, 697 (331 SE2d 70). The fact that many, or most, transferred juvenile cases involve violent crimes (cf. In the Int. of J. J. S., supra; and see In re K. S. J., 258 Ga. 52 (365 SE2d 820)) and In the Int. of L. D. J., 187 Ga. App. 610 (371 SE2d 133) (cited by appellant) does not mean that only juveniles committing violent offenses are transferrable to superior court; there is no such requirement in OCGA § 15-11-39. The theft of more than two pounds of cocaine is equally serious or equivalent to many crimes that are physically violent in nature. Finally, the community’s interest in this case and in the conduct of the sheriff’s office in that county are weighty factors that the trial court properly considered. See In the Int. of J. J. S., supra.

Decided February 16, 1990

Rehearings dismissed March 26, 1990 and April 10, 1990

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Leonard C. Parks, Jr., Assistant District Attorneys, for appellee.

We find no abuse of discretion in the juvenile court’s transfer of this defendant, soon to be age twenty, to superior court for prosecution of this serious offense.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A90A0223.
    GUNNIN et al. v. SWAT, INC. et al.
    (393 SE2d 700)
   Pope, Judge.

Byron and Joy Gunnin brought this action for negligent termite inspection against Swat, Inc., and Tommy Dunn, its president. Swat performed a termite inspection on March 31, 1988, in connection with the Gunnins’ purchase of a house. At closing on April 7, 1988, Swat provided the Gunnins a standard termite letter certifying that Swat had inspected the house and found no visible signs of past or present infestation. On April 18, 1988, less than three weeks after the inspection, the Gunnins discovered bits of wallpaper falling from the wall in the bathroom and termites falling from the ceiling. Upon closer inspection, they found that the entire rear of the house was infested with termites with resulting structural damages. They notified Swat and the company came out and treated the infested areas. In their complaint, the Gunnins allege the cost of structural repair to be $6,280. The trial court granted summary judgment to defendants Swat and Dunn. Held:

We affirm. “On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” (Citations and punctuation omitted.) Butler v. Terminix Intl., 175 Ga. App. 816 (334 SE2d 865) (1985).

In support of their motion, Swat and Dunn relied on the affidavit of Dunn, in which he averred that he made the inspection “on or about the 31st day of March, 1988” and that his inspection “revealed no visible evidence of infestation of the property with wood destroying organisms.” In opposition, the Gunnins produced the affidavits of Byron Gunnin and Wesley Johnson. Johnson is a qualified and certified pest control operator with 14 years experience. In his affidavit, he stated that he reviewed photographs, videotape and inspection reports of the house made in April 1988. From his examination of this material, Johnson gave his opinion that a proper inspection of the property on March 31, 1988 “would have resulted in the discovery of the infestation existing on that date. ...” He also opined that signs of the infestation “were plainly visible at the time the alleged inspection was made.” “ ‘Negligence is not to be presumed, but is a matter for affirmative proof.’ [Cit.]” Worth v. Orkin Exterminating Co., 142 Ga. App. 59, 62 (234 SE2d 802) (1977). Johnson’s affidavit, as an expert in the field, would create a genuine issue of fact as to whether a qualified inspector should have found visible evidence of infestation by wood-destroying organisms on March 31, 1988, but for the absence from the record of the supporting material relied upon by Johnson. OCGA § 9-11-56 (e) provides in pertinent part: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

The court in Bush v. Legum, 176 Ga. App. 395, 397 (336 SE2d 284) (1985), made clear that this requirement of attachment of sworn or certified copies applied to material other than papers. In that case, the material at issue consisted of x-rays. In Crawford v. Phillips, 173 Ga. App. 517 (326 SE2d 593) (1985), the court applied the requirement to photographs. “As to affidavits [OCGA § 9-11-56 (e)] specifically provides that they shall ‘set forth such facts as would be admissible in the evidence.’ The same rule applies to depositions, interrogatories, and other evidence submitted on motion for summary judgment under the principle that admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would be inadmissible on motion for summary judgment. [Cits.]” Matthews v. Wilson, 119 Ga. App. 708, 711 (168 SE2d 864) (1969).

Johnson’s opinion as expressed in his affidavit is not based on personal knowledge. He does not state that he visited the premises. Instead, it is derived from photographs, videotape and reports not appearing in the record. Thus, it is not probative to contradict the affidavit of Dunn. Nor does. Byron Gunnin’s affidavit create a genuine issue of fact. Although Gunnin avers that visible evidence of termite infestation was easily observed on March 31, 1988, this testimony is directly contradicted by his deposition testimony. In that testimony, he said he looked at the house on February 22, at which time he made an offer to buy it and he did not enter the house again until April 7 when he started to move in. He did not notice the termite damage until April 18. “ ‘[0]n summary judgment the self-contradictory testimony of a party-witness, if a reasonable explanation is not offered for the contradiction, must be construed against the party-witness. . . .’ [Cit.]” Evans v. Richardson, 189 Ga. App. 751, 752-753 (377 SE2d 521) (1989). There appears no genuine issue of fact and Dunn and Swat are entitled to judgment as a matter of law.

Decided April 10, 1990.

Murray, Donovan & Nabors, Donald R. Donovan, for appellants.

Monroe Ferguson, for appellees.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0282.
    SEBASTIAN v. THE STATE. JACKSON v. THE STATE.
    A90A0346.
    (393 SE2d 492)
   Pope, Judge.

Defendants Sebastian and Jackson were tried jointly for offenses arising from the armed robbery of a convenience store. The jury was authorized to find that defendants entered a convenience store with another man, Glass, late in the evening on January 12, 1989. After Glass purchased a six-pack of beer, the three men went to the video games and magazine rack. Sebastian stepped outside to the phone booth. After the only other customer in the store left, Glass went to the counter, pointed a gun at the clerk and took the contents of the cash register. During the robbery, a customer entered and Glass took the customer’s wallet at gunpoint and Glass and the defendants left together and went to a car parked across the street at a carwash and drove off. The next day, defendant Sebastian, accompanied by defendant Jackson, attempted to cash a $180 check taken from the customer in the robbery the night before and the two were arrested. Glass, who plead guilty and testified for the State, said that he and defendants planned the robbery together and split the proceeds. Both Sebastian and Jackson testified that they had asked Glass to go with them to the store to buy them beer because they were under age and they had no knowledge he was going to rob the store and took no part in it. The jury found both defendants guilty of one count of armed robbery and one count of forgery.

1. Appellant Sebastian argues that it was error to deny his motion to sever his trial from that of his co-defendant Jackson. We do not agree. Applying the factors set out in Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975), we hold that the trial court did not abuse its discretion in denying the motion to sever. There were but two defendants, their defenses were not antagonistic (both admitted presence but denied knowledge of the armed robbery) and the evidence adduced at trial was generally admissible against both. Although Sebastian argues that there was a “spillover” effect similar to that found in Price v. State, 155 Ga. App. 844 (273 SE2d 225) (1980), the evidence in the present case against Sebastian was substantial, and not slight, as the court found in Price. Having examined the entire record, we find no error in refusing to sever.

2. Appellant Jackson, represented on appeal by new counsel, argues that his trial counsel was ineffective. After a hearing on the matter, the trial court denied the motion for new trial on all grounds asserted, including the challenge to counsel.

“To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cit.]” Baggett v. State, 257 Ga. 735 (363 SE2d 257) (1988). On appeal, new counsel argues that trial counsel did not request a Jackson-Denno hearing regarding a statement given to police, did not handle properly the introduction of the redacted (for Bruton purposes) statement and later, after Jackson took the stand, the full statement. He also argues that trial counsel did not object to the charge and that he did not spend sufficient time preparing the case or advising Jackson of the sentence he could receive if convicted.

However, at the hearing to determine whether trial counsel was ineffective, Jackson admitted that he knew of no witnesses or defenses that could have been presented but were not. Counsel on appeal has not demonstrated that the statement made by Jackson was inadmissible and we note that the trial court charged the jury fully on the issue of determining whether Jackson gave the statement freely and voluntarily. The evidence also shows that Jackson received the same sentence he was offered as part of a proposed plea bargain. The evidence most damaging to Jackson came from the testimony of the victims and an eyewitness as well as Glass, his co-conspirator. The jury resolved the conflict between Glass’ version of events and Jackson’s against Jackson. Trial counsel vigorously cross-examined witnesses and brought out evidence to support Jackson’s theory that he was present but had no knowledge of and did not participate in the crimes. The alleged deficiencies would not have changed the outcome.

3. We find no merit in Jackson’s second enumeration of error.

Decided April 10, 1990.

James B. McGinnis, for appellant (case no. A90A0282).

John D. McCord III, for appellant (case no. A90A0346).

Robert E. Wilson, District Attorney, Robert M. Coker, Robert E. Statham III, Assistant District Attorneys, for appellee.

Judgments affirmed.

Deen, P. J., and Beasley, J., concur.


author: Carley, Chief Judge.

text:
    A89A2347.
    LEE v. FULTON CONCRETE COMPANY et al.
    (393 SE2d 449)
   Carley, Chief Judge.

Appellant-plaintiff was injured when her vehicle was struck by a truck that was owned by appellee-defendant Fulton Concrete Company and that was being operated by its employee, appellee-defendant George Monseglio. After the collision, appellees’ liability carrier became insolvent. Accordingly, when appellant filed this tort action against appellees, she caused a copy of her complaint to be served on her own uninsured motorist carrier. See OCGA § 33-7-11 (b) (1) (D) (iv). Thereafter, appellant settled with her uninsured motorist carrier for less than the policy limits. Appellees then moved for summary judgment on the ground that appellant’s settlement with her uninsured motorist carrier barred her from pursuing her tort claim against them. The trial court granted summary judgment in favor of appellees and appellant appeals from that order.

Appellees rely upon former OCGA § 33-36-14 (a), a provision of the Georgia Insurers Insolvency Pool Act, which provided as follows: “Any person . . . having a claim against his insurer under any insolvency provision contained in his insurance policy, which claim arises out of the insolvency of a participating insurer, shall be required to exhaust first his rights under the policy; and his rights to recover such claim under this chapter shall be reduced accordingly.” Under appellees’ construction of this former provision, appellant had a claim against her own uninsured motorist carrier arising out of the insolvency of their liability carrier and, insofar as she failed to exhaust her rights against her own uninsured motorist carrier by settling for less than the policy limits, appellant cannot now proceed on her tort claim against them.

We need not decide whether appellant’s apparently good faith settlement with her own uninsured motorist carrier for less than the policy limits does or does not evince a failure to “exhaust” her rights under her own policy as contemplated by former OCGA § 33-36-14 (a). Regardless of the legal effect that appellant’s settlement might otherwise have under the Georgia Insurers Insolvency Pool Act, that settlement does not provide appellees with a personal defense so as to bar appellant’s pursuit of her tort action against them. See Bethea v. Forbes, 548 A2d 1215 (Pa. 1988). It follows that the trial court erred in granting summary judgment in favor of appellees. Appellant’s compliance or non-compliance with former OCGA § 33-36-14 (a) will only become a relevant inquiry if and when she obtains a judgment against appellees.

Decided March 6, 1990

Rehearing denied March 22, 1990

Rehearing dismissed April 12, 1990.

Bovis, Kyle & Burch, John C. Bach, for appellees.

Judgment reversed.

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


author: Cooper, Judge.

text:
    A90A0064.
    TATUM v. THE STATE.
    (393 SE2d 494)
   Cooper, Judge.

A jury found appellant guilty of trafficking in cocaine (OCGA § 16- 13-31 (a)) and possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (5)). Appellant enumerates several alleged errors in his effort to have the convictions reversed.

The record shows that an informant, who was working as the arresting officer’s agent, called the officer and stated that he had a person who wanted to sell three ounces of cocaine for $3,300. The officer and the informant then went to a prearranged location and waited for the seller to arrive. Appellant arrived at the location and stated that when he received the money, he would wave his hand in the air and a second person would bring the cocaine. The officer gave appellant $2,300 for two ounces of cocaine and, when the second person brought the cocaine, appellant and the second person were arrested and charged with trafficking in cocaine. During a search of appellant, the officer found a handgun in appellant’s pants.

1. Appellant first contends that the trial court erred in allowing a State witness to testify whose name did not appear on the list of witnesses provided to appellant. “Although the witness’ name did not appear on the list previously furnished to appellant, the trial court did allow appellant to conduct an interview before the witness was permitted to testify. Accordingly, there was no violation of OCGA § 17- 7-110.” Boscaino v. State, 186 Ga. App. 133 (3) (366 SE2d 789) (1988).

2. Appellant, contending that no chain-of-custody was established, enumerates as error the admission of a witness’ testimony regarding the purity of the cocaine. At trial the officer identified the State’s exhibit as the cocaine sold to him by appellant. He further testified that after seizing the cocaine, he returned to his office where he weighed the cocaine, placed it in a bag, labelled and heat sealed the bag, and placed it in the evidence box. The forensic chemist also identified the State’s exhibit by his initials and crime lab case number which he placed on the label and further testified that after testing the cocaine, he placed evidence tape over the seal and placed it in an evidence locker. We conclude that the State met its burden of showing with reasonable certainty that the evidence was the same as that seized and there was no tampering or substitution. Gulley v. State, 187 Ga. App. 35 (369 SE2d 326) (1988).

3. Appellant alleges error in the trial court’s recharge to the jury on entrapment. The jury requested, and received, a recharge on the law of entrapment. Appellant objected to the following portion of the recharge: “Entrapment exists where the idea and intention of thé commission of the crime originated with a government officer or employee or with an agent of either and he by undue persuasion, incitement or deceitful means induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” Appellant objected because in the original charge, the words “or agent” followed the word “officer” in the last line of the charge. The trial judge overruled the objection, but during a subsequent recharge on entrapment, requested by the jury, the trial court included those words in the charge. Appellant objected to the second recharge, contending that the words “or agent” should have been included in yet another portion of the charge, even though not included in the original charge. Having reviewed the charge and the two recharges, we conclude that the trial judge correctly instructed the jury on the law of entrapment, and we find no harm from the failure to include the words “or agent” in one portion of the charge, particularly when the exact same charge was given twice without any objection by appellant. See Wallace v. State, 162 Ga. App. 367 (3) (291 SE2d 437) (1982).

4. The evidence considered in its entirety was sufficient to enable a rational trier of fact to find appellant guilty on both counts of the indictment beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Corbitt v. State, 169 Ga. App. 739 (7) (315 SE2d 25) (1984).

5. Appellant raises as error on appeal that he was denied the ineffective assistance of counsel. The record reflects that appellant retained an attorney to represent him during the trial; that appellant filed a pro se notice of appeal; that an attorney was thereafter appointed to represent appellant; and that appellant’s court appointed counsel filed an amended notice of appeal and raised for the first time the issue of effectiveness of counsel during trial. We find this case to be controlled by Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986), where the Supreme Court established the practice of remanding to the trial court the claim of ineffective assistance of counsel when the issue was first raised on appeal. Accordingly, this case is remanded to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. Hutton v. State, 192 Ga. App. 239 (5) (384 SE2d 446) (1989).

Decided April 12, 1990.

Louise C. Thomas, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

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


text:
    A90A0110.
    STUCKEY DIAMONDS, INC. v. JONES et al.
    (393 SE2d 706)
   Birdsong, Judge.

Stuckey Diamonds appeals from the grant of summary judgment to Clyde C. Jones in its suit against him on an open account. Stuckey Diamonds sued both Clyde C. Jones (also “Jones”) and his son Allan Jones, to recover the debt owed by Jones Jewelry. Although Allan Jones admitted in interrogatory answers that he owed the debt, Clyde C. Jones denied liability for the debt.

The litigation was stayed when Allan Jones filed a petition in bankruptcy. After Allan Jones’ death, the proceedings continued against Clyde C. Jones.

Stuckey Diamonds filed a motion for summary judgment, and Jones responded to the motion and filed a cross-motion for summary judgment supported by his affidavit. The affidavit specifically and in detail denied any business relationship as a partner or otherwise with Jones Jewelry, denied that he had purchased any items from Stuckey Diamonds, and denied that he had applied for any credit or authorized anyone to apply for credit for the purchase of any items from Stuckey Diamonds.

The trial court denied Stuckey Diamonds’ motion and Stuckey Diamonds rebutted Jones’ motion with an affidavit from an assistant credit manager. The affidavit stated sufficient facts to establish that the affiant was competent to testify (see Jacobs v. Spano, 193 Ga. App. 447, 448 (387 SE2d 924)) and also stated that it was made from the affiant’s personal knowledge. The affiant identified a credit application from Jones Jewelry and a financial statement from Jones, which were attached to the affidavit, and stated that the financial statement was submitted by Jones Jewelry as part of its credit application.

Decided April 12, 1990.

Lamb & Associates, T. Gordon Lamb, Sharon K. Gipson, for appellant.

The trial court then granted Jones summary judgment. Stuckey Diamonds now appeals contending that its affidavit created a genuine issue remaining for trial. Held:

Stuckey Diamonds asserts that its assistant credit manager’s affidavit sufficiently rebutted Jones’ affidavit to demonstrate an issue remained for trial over whether Jones held himself out as a partner in Jones Jewelry. Jones contends, however, that the assistant credit manager’s affidavit is deficient for that purpose because it does not contain statements showing that the attachments were admissible as business records. See Thomasson v. Trust Co. Bank, 149 Ga. App. 556 (254 SE2d 881).

This argument, however, is not applicable because the assistant credit manager’s affidavit is based on her personal knowledge that Jones’ financial statement was attached to Jones Jewelry’s credit application. See generally Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 810-811 (374 SE2d 544). Therefore, there was no requirement to show the documents were also admissible as business entries. Evidence admissible in one capacity is not inadmissible because it does not satisfy the rules for admissibility in another capacity. Pugh v. State, 191 Ga. App. 394, 395 (382 SE2d 143).

Therefore, construing the evidence (particularly the financial statement received with the credit application) in favor of Stuckey Diamonds and against Jones, and affording Stuckey Diamonds the benefit of all reasonable doubts (see McNish v. Gilbert, 184 Ga. App. 234 (361 SE2d 231)), we find a genuine issue of material fact remains on whether Jones held himself out as a partner in Jones Jewelry. “ ‘(W)hen circumstances from which a jury may infer a certain fact conflicts with direct evidence that such fact was untrue, a jury question is presented and summary judgment is not proper.’ [Cits.]” Mealer v. Gen. Cinema Beverages, 190 Ga. App. 419, 420 (379 SE2d 192). Accordingly, the trial court erred by granting summary judgment to Jones. OCGA § 9-11-56 (c).

Judgment reversed.

Banke, P. J., and Cooper, J., concur.

Johnson, Beckham & Price, Robert F. Dangle, for appellees.


text:
    A90A0148.
    PIEDMONT PROPERTIES, INC. et al. v. SIMS et al.
    (393 SE2d 496)
    Decided April 12, 1990.

      F. Carter Tate, for appellants.

      Glass, McCullough, Sherrill & Harrold, Terrence McQuade, Robert S. Jones, James Will, Jr., for appellees.
   Cooper, Judge.

This case arises from a dispute about the validity of a contract for the sale of real property. Appellants sued appellees for specific performance or, in the alternative, damages. This appeal follows the trial court’s grant of summary judgment to appellees.

We first consider whether we have jurisdiction to consider this matter. “An action seeking specific performance seeks equitable relief [cits.], and an appeal from a judgment rendered pursuant to a request for equitable relief is within the jurisdiction of the Supreme Court. [Cits.]” Lemke v. Southern Farm &c. Ins. Co., 182 Ga. App. 700 (356 SE2d 739) (1987). This appeal from a judgment rendered pursuant to a request for equitable relief is within the Supreme Court’s jurisdiction. 1983 Ga. Const., Art. VI, Sec. VI, Par. III (2).

Case transferred to Supreme Court.

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


author: Beasley, Judge.

text:
    A90A0136.
    KING v. THE STATE.
    (393 SE2d 709)
   Beasley, Judge.

Defendant appeals his misdemeanor conviction of theft by taking of a necklace. OCGA § 16-8-2. During defendant’s bench trial, the evidence was not recorded, precluding a transcript. Defendant did not request reporting, see OCGA § 5-6-41 (b), or otherwise arrange for recording, as could have been done. OCGA § 5-6-41 (j). Afterwards, the State and defendant were unable to agree on what transpired during trial. When defendant moved for a new trial, he also submitted to the trial court the resolution of that issue. OCGA § 5-6-41 (g) & (i). At a hearing approximately seven months after the trial, at which witnesses who were present at the trial testified as to their recollections, and the only two witnesses at that trial (defendant and the victim) also gave their remembered versions of what they had said and what transpired. The trial court refused to certify either defendant’s or the State’s transcript version. It indicated that it could not recall sufficient detail to construct a transcript and ruled: “there shall be no transcript of evidence.” It also heard argument on the motion for new trial, which was based on insufficiency of evidence and on the allegation that the bench had considered the defendant’s criminal record in ascertaining guilt. The court found from its recollection and the testimony that the latter had not occurred and that the evidence had warranted conviction. The motion for new trial was denied.

Defendant enumerates as error the failure to certify a transcript; the denial of his request for sequestration of a witness at the hearing motion for new trial; the denial of that motion because the evidence was insufficient to sustain his conviction; and the refusal to permit him to demonstrate allegedly reversible error.

1. We may not consider a stipulated transcript or a stipulation of the case without the agreement of the parties, unless approved by the trial court. Elliott v. Ga. Baptist Convention, 165 Ga. App. 800, 801 (302 SE2d 714) (1983); Welch v. Mercer, 165 Ga. App. 776 (302 SE2d 629) (1983). Where the parties are unable to agree, the decision of the trial court is final and not subject to review. OCGA § 5-6-41 (g); Welch, supra. The trial court is not required to certify a transcript but may instead determine it is unable to recall what transpired. OCGA § 5-6-41 (g); Parker v. State, 154 Ga. App. 668 (1) (269 SE2d 518) (1980); Taylor v. State, 172 Ga. App. 827, 828 (4) (324 SE2d 788) (1984). Although the court did not expressly state that was its finding, what was said during the motion hearing plus the holding clearly showed it. Defendant’s contention that his right to appeal has been abridged lacks substance. Parker, supra.

2. It has been held that an approved brief of evidence is essential to a motion for new trial raising evidentiary questions, and for review thereof. McDowell v. State, 102 Ga. App. 761 (117 SE2d 886) (1960); Dean v. State, 188 Ga. App. 128 (1) (372 SE2d 286) (1988). Defendant was afforded the next best thing to a transcript, i.e., the recollected testimony of all witnesses in the criminal trial plus the testimony of persons who observed it. What was recalled was sufficient for us to conclude that the denial of the defendant’s motion was proper and must be affirmed.

3. The trial court’s refusal to sequester a State’s witness during the motion hearing does not affect the appeal’s determinative issue. As to the alleged repression of defendant’s attempts to demonstrate error, no objection was interposed. Thus, neither of the two remaining enumerations has merit.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided April 13, 1990.

Jacquelyn F. Luther, for appellant.

James L. Webb, Solicitor, Helen A. Roan, Lee O’Brien, Assistant Solicitors, for appellee.


text:
    A90A0421.
    LATHAM v. THE STATE.
    (393 SE2d 498)
   Birdsong, Judge.

Robert Latham, Jr., was tried for the murder of Willie Kaigler and convicted of voluntary manslaughter. On appeal, he asserts he was entitled to a directed verdict or new trial because “there was no evidence sufficient to overcome a reasonable doubt that appellant acted otherwise than in self-defense”; and he complains of the admission of evidence that he had been free-basing cocaine prior to the incident. Held:

1. Appellant stabbed Willie Kaigler in the parking lot of Kaigler’s apartment. There were four eyewitnesses. The evidence varies somewhat among the witnesses because of the nature of the struggle between appellant and the deceased; however, there was ample evidence that appellant was the aggressor and had stabbed Kaigler, although Kaigler had raised a nightstick towards appellant. Evidence showed appellant had confronted Kaigler about some money Kaigler owed him, and had stated to others the night before that he would cut Kaigler’s tires, and had approached Kaigler and Kaigler’s wife in the apartment parking lot as they were unloading groceries. Appellant later stated and testified that he was struck by Kaigler and he grew frightened, threw the knife towards Kaigler, and ran. But, at least one eyewitness testified she saw appellant plunge the knife into Kaigler after Kaigler had raised up his hand; she never saw Kaigler strike appellant. The medical examiner testified the knife blade was three inches long and had entirely penetrated Kaigler’s body, cutting the edge of Kaigler’s breastbone before penetrating his aorta. The examiner testified these facts were not consistent with the possibility of the knife having been simply thrown at the deceased.

As to whether all of the evidence raised any reasonable doubt of the commission of the crime charged or showed appellant acted in self-defense, this is exactly the sort of case where the jury is best empowered to resolve any conflicts in the evidence and determine the credibility of the witnesses and adjudge the facts. Viewing the evidence in favor of the jury’s findings, we find there was clearly sufficient evidence from which a rational trier of fact could find appellant guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 13, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory A. Adams, Assistant District Attorneys, for appellee.

2. The trial court did not err in admitting appellant’s own evidence that he had been free-basing cocaine the night before the killing until 2:00 or 3:00 a.m. and again on the day of the killing until 1:00 p.m. Appellant stabbed Kaigler at about 5:30 p.m.

This evidence, as part and parcel of the crime and as res gestae, was admissible under Parks v. State, 254 Ga. 403, 408 (330 SE2d 686) and Hart v. State, 185 Ga. App. 141, 142 (363 SE2d 599), even though the killing does not appear to have directly involved drug usage and even though the evidence incidentally puts appellant’s character in issue. The trial court, having determined the evidence was admissible on grounds of relevancy (see OCGA § 24-2-1), properly instructed the jury that they would be the determiners of whether this evidence was in fact relevant, and appellant did not object to the charge or suggest a better one. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court; it does not matter that the act does not establish directly the main offense. See Fuqua v. State, 183 Ga. App. 414, 419 (1) (359 SE2d 165); and see Cooper v. State, 188 Ga. App. 629 (373 SE2d 796); Lawrence v. State, 187 Ga. App. 211 (1) (369 SE2d 531).

In this case, the evidence is well within the range of circumstances which the jury might find relevant. The evidence showed appellant was in the recent and immediate custom of free-basing cocaine every few hours, and he had last used the drug before 1:00 p.m., prior to killing Kaigler at about 5:30 p.m. The jury could determine these facts were relevant to show that appellant was. an habitual cocaine user who, at the time of the killing, was in a state of mind affected by his use of the drug or by his need for the drug. Certainly, this is part of the res gestae. And, even questionable evidence should be admitted rather than barred (see Baker v. State, 246 Ga. 317 (271 SE2d 360)); where the facts would permit the jury to make an inference pertinent to the issue, according to the view they take of them, the jury ought to be permitted to hear them. Williams v. State, 153 Ga. App. 890 (267 SE2d 305). Under Parks v. State and Hart v. State, supra, recent drug usage is such evidence. The trial court did not err in admitting this evidence.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0425.
    FREEMAN v. THE STATE.
    (393 SE2d 496)
   Beasley, Judge.

Freeman appeals his bench conviction for trafficking in cocaine, OCGA § 16-13-31 (a) (1). The case was tried on the stipulated evidence from the hearing on Freeman’s motion to suppress. He challenges the trial court’s denial of suppression.

1. Freeman contends that the initial stop of his vehicle was pretextual and without probable cause or articulable suspicion in violation of the Federal and State Constitutions and “OCGA § 17-5-2,” apparently meaning OCGA § 17-5-1. Although he references the State Constitution and State statute, appellant argues solely cases applying the federal standard, so our consideration is limited to the Federal Constitutional ground. See Davenport v. State, 172 Ga. App. 848, 850 (2) (325 SE2d 173) (1984). If the stop were federally valid, he waived any invalidity based on State Constitutional or statutory grounds because they were not properly raised.

At approximately 8:52 a.m. a City of Atlanta police officer was on routine patrol at an intersection in front of a high school when he heard loud music coming from behind him, a half block or approximately six or seven hundred feet away. The noise became louder as the car pulled parallel to the patrol car. There were no other vehicles on the street. The officer deduced that the noise was coming from the car, which was being operated by Freeman. The officer pulled him over for playing the car radio too loudly in violation of city noise ordinances. See Atlanta City Code §§ 17-3102; 17-3103 (b) (1) and (2). He also noted that the windshield was cracked.

When asked for his driver’s license and insurance, Freeman stated that the license had been taken from him. He produced an insurance card and a traffic citation given eleven days before for driving with a suspended license. OCGA § 40-5-121 (a). The officer confirmed by radio that Freeman’s license had in fact been suspended two weeks earlier. Following standard operating procedure for a stop on a traffic violation, the officer called his supervisor and requested permission to arrest Freeman for driving with a suspended license. Permission was granted and the officer put Freeman in the back of the patrol car. He also planned to charge noise ordinance violation and driving an unsafe (cracked windshield) vehicle.

As the officer was completing the necessary paperwork, Freeman told him he had valuables, specifically children’s toys, in his car and asked that he be allowed to let someone come for the vehicle. Because of the car’s unsafe condition, the officer denied the request but told Freeman he would secure the valuables in the car’s trunk. The officer peered into the front seat area of Freeman’s car and saw what appeared to be a child’s cardboard toy box on the passenger side of the floorboard. The officer opened the box and discovered a brown paper bag containing 603 pieces of rock cocaine of 96.2 percent purity and weighing 474 grams.

“ ‘[A]n officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), [if] such a stop . . . [is] justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). . . .’ United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).” Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987).

The undisputed circumstances do not demonstrate that the initial stop was pretextual. There is no evidence whatsoever that the initial purpose of the stop was to search for drugs. Allen v. State, 191 Ga. App. 623, 624 (1) (382 SE2d 690) (1989).

Furthermore, the officer had more than an articulable suspicion of prohibited conduct to stop appellant: he personally saw and heard the initial ordinance and traffic violations. Once appellant was validly stopped and the officer obtained information about his license status, there was probable cause for arrest on the suspended license charge as well. Because of the lawful arrest and the necessity to impound the vehicle due to its unsafe condition, the officer was authorized to search the passenger compartment. See Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986), applying New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981).

The trial court properly refused to suppress evidence of contraband on the basis that it stemmed from a pretextual stop unsupported by articulable suspicion or probable cause.

2. We do not address appellant’s further contentions that the noise ordinance at issue is federally unconstitutional on its face because it is vague and overbroad and is likewise unconstitutional because it was applied capriciously. These constitutional arguments were not raised below and the right to raise them on appeal has been forfeited. See Senase v. State, 258 Ga. 592 (372 SE2d 813) (1988); Burroughs v. State, 186 Ga. App. 40, 45 (12) (366 SE2d 378) (1988).

In any event, even if the noise ordinance could not withstand the constitutional challenges, there was other valid and lawful basis for the stop of appellant’s vehicle. See Division 1.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided April 13, 1990.

Dennis R. Scheib, for appellant.

Lewis R. Slaton, District Attorney, A. Thomas Jones, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.


author: Deen, Presiding Judge.

text:
    A90A0098.
    EUBANKS v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. GIBSON v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    A90A0099.
    (393 SE2d 452)
   Deen, Presiding Judge.

Appellant Susan M. Gibson, individually and as surviving spouse of Gene Gibson, filed a wrongful death action against appellant William E. Eubanks seeking to recover damages on behalf of herself and three minor children of the deceased for the shooting and killing of her husband by Eubanks. Appellee Nationwide Mutual Fire Insurance Company had issued Eubanks a policy of homeowner’s insurance providing liability and medical payments coverage, and was called upon by Eubanks to defend him against Gibson’s suit and to pay up to the policy limits any judgment rendered against him. Nationwide filed the instant declaratory judgment action against Gibson and Eu-banks in order to resolve whether coverage was afforded under the terms of the insurance contract. The evidence presented at trial conclusively established that Eubanks was delusional, psychotic and mentally ill when he shot and killed Gene Gibson. Nationwide denied coverage because the policy in question expressly provided that it did not apply to “bodily injury or property damage . . . which is expected or intended by the insured.” Gibson and Eubanks contended that proof of mental incompetence negated any intent to cause bodily injury as a matter of law so as to entitle Eubanks to coverage under the policy. At the close of the evidencé the trial court denied motions for directed verdict made by Eubanks and Nationwide. The jury returned a verdict in favor of Nationwide and the motions for judgment notwithstanding the verdict or for new trial made by Gibson and Eu-banks were denied, from which they have both appealed.

1. Appellants contend that the trial court erred in failing to grant their motions for judgment n.o.v. or for new trial because (1) a mentally incompetent person is incapable of intent as a matter of law; and (2) the doctrine of transferred intent, although there was no actual third person, should be applied based on previous Georgia cases.

There is no dispute between the parties that William Eubanks was legally insane at the time he shot Gene Gibson. It was the opinion of two psychiatrists who treated Eubanks that after weeks of sleep deprivation and devoted care of his dying wife he was “unable to realize the reality of the situation,” was delusional, not in control of himself, could not accurately apprehend the facts of the situation and was at the time psychotic and suffering from dementia, which was subsequently diagnosed as probably cause by Alzheimer’s disease. The delusion under which Eubanks was laboring at the time was that Gibson was going to kill him after they had argued over Gibson’s blocking Eubanks’ car in the parking area of a shopping center. After Eubanks drove away and Gibson pursued him, Eubanks took a pistol from his car and shot Gibson five times. According to one of the psychiatrists, Eubanks “had the mental ability to defend himself and that’s about as far as [he] could go. . . . [I]f he had any less than that he’d probably be comatose. ... He probably had the mental ability of a child that. . . knew what the pistol could do to protect him and knew how to point the pistol.” In this medical expert’s opinion, Eubanks’ insight and judgment at the time he shot Gibson were less than that of a five-year-old child, and his response to the perceived danger from Gibson was an act of self-defense. The other psychiatrist testified on direct examination by Nationwide that in his opinion Eubanks intended to shoot Gibson. On cross-examination he explained that Eubanks “intended to shoot at, hit, and probably kill [an] individual that, in his mind, he saw had a weapon and was threatening his life,” but that he did not intend to kill a man who was not threatening him or his wife with bodily harm. The testimony of Mrs. Eubanks’ physician and office staff who had seen Eubanks just prior to the incident, and others who witnessed the shooting, fully corroborated these medical opinions of Eubanks’ mental state.

Appellants submit that “intent” for the purposes of the intentional act exclusion of the homeowner’s policy contemplates more than that minimal mental component necessary to point a gun at someone and shoot it, and that this conclusion is required by State Farm &c. Cas. Co. v. Morgan, 185 Ga. App. 377 (364 SE2d 62) (1987); aff’d 258 Ga. 276 (368 SE2d 509) (1988). We do not agree. The Morgan case involved the negation of intent through voluntary intoxication rather than insanity, and the import of its holding, as well as the majority opinion of the Supreme Court affirming it, is that the question of whether intent or expectation excludes coverage for injuries “uniquely fits the pattern of those issues of material fact which are not appropriate issues for summary judgment but are decided by the trier of fact.” Id. at 258 Ga. 276. Thus appellants received just what they were entitled to, to wit, a jury trial.

The case of State Farm &c. Ins. Co. v. Gross, 188 Ga. App. 542 (373 SE2d 789) (1988) is much closer factually to the instant situation. There the case was before this court on interlocutory appeal from the denial of the insurer’s motion for summary judgment in a declaratory judgment action under an identical policy exclusion. The insured had shot and killed his next door neighbor believing that the neighbor and his wife were having an affair. The insured testified that he wanted to kill the neighbor and intended to kill him, but contended that fact issues with respect to the applicability of the exclusion existed due to psychiatric opinion testimony that he was acting out of a delusional compulsion and was unable to distinguish between right and wrong at the time of the killing. Two judges held that “[i]n order for a delusional compulsion to constitute a defense to a criminal charge, it must be as to a fact which, if true, would justify the act. [Cits.]” Id. at 543. However, because the evidence showed that the insured was leading “a relatively normal day-to-day life” at that time, the plurality determined that there was “no basis whatever for a conclusion that his ability to intend the consequences of the shooting was undermined by his purported inability to appreciate the rightness or wrongness of his conduct. [Cit.]” Id.

Judge Beasley, concurring specially in Gross, pointed out that while insanity may be a defense to an intentional tort it not always is a defense: “If there is evidence that the insanity was such as to preclude the forming of intent to do the act complained of, then the jury must decide whether such an intent was present or blocked. If the evidence of intent to do harm is such that it existed in spite of the insanity, then insanity is irrelevant on the issue of intent. This is so even if the insanity is such that it would excuse the actor from criminal responsibility, applying the criminal law standard of insanity.” Id. at 544. Judge Beasley agreed with the plurality’s conclusion that the trial court erred in denying the insurer’s motion for summary judgment in Gross, however, because no jury issue existed “given the unrebutted testimony of the actor that he intended the act and its harmful consequences.” Id.

In the present case, there was eyewitness testimony that Eubanks approached the pickup truck which Gibson was driving and fired several shots at him through the window at point blank range. Eubanks then walked around the truck to where Gibson was lying on the pavement and fired several more shots at him. Eubanks was also heard to threaten another person who was with Gibson. After the shooting Eu-banks surrendered himself to a police officer, and showed the presence of mind to hold his gun over his head in a non-threatening manner as he approached the officer. Eubanks told the officer he had shot Gibson, and led him to the body. The officer testified that when he asked Eubanks how many times he had shot Gibson, Eubanks stated “I shot him five times. I unloaded the gun on him. . . . There’s no use pulling a gun on somebody . . . unless you’re planning on using it.”

It thus appears that even if Eubanks were acting under the delusional misperception of self-defense, he fully intended to fire the gun at Gibson and to cause him bodily harm. “If appellant intentionally fired the gun at [Gibson], albeit in self-defense, even if appellant were to assert that such actual injury to [Gibson] as thereby resulted was not that desired or expected, ‘(t)he general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. (Cit.)’ [Emphasis omitted.] Accordingly, ... a claim of self-defense does not vitiate the element of intent so as to remove an act from the ambit of the exclusionary clause in the instant policy.” Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 813 (324 SE2d 510) (1984). See also Georgia Farm Bureau &c. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989).

It is thus clear that neither Eubanks’ insanity nor the fact that he was, or thought he was, acting in self-defense entitled appellants to judgment as a matter of law. Nor do we agree with appellants’ argument that the defense of “transferred intent” is applicable here because Eubanks actually intended to kill a non-existent aggressor rather than Gibson. In Brown v. St. Paul Fire &c. Ins. Co., 177 Ga. App. 215 (338 SE2d 721) (1985), upon which appellants rely, where the insured accidentally shot another bystander during a shoot-out with his intended victim, this court held that because the evidence did not demand a finding that the insured intended or expected the injury to the other person would be the result of his intentional act, a jury question was presented in regard to whether the exclusion was applicable. Even accepting appellants’ argument that the theory should be expanded to include what they describe as “in effect two entities, one real and one non-real,” Brown holds that the issue of transferred intent is a jury question. Appellants were allowed to present this question to the jury and cannot complain because it was decided adversely to their position. Construing the evidence in a light most favorable to the party securing the jury’s verdict, as we are required to do, it is clearly apparent that the trial court did not err in denying appellants’ motions for directed verdict, for judgment notwithstanding the verdict, or for new trial. Orkin Exterminating Co. v. Durden, 189 Ga. App. 479 (1) (376 SE2d 376) (1988); Davis v. Glaze, 182 Ga. App. 18 (1) (354 SE2d 845) (1987).

2. As requested by appellee, the trial court charged the jury “that if one discharges a gun under circumstances which indicate that it was not accidental there is a conclusive inference that he intended to fire the gun, and if pointed it at another and fired and hit him there is a conclusive inference that he intended to hit him in the absence of anything to rebut such inference.” The trial court also instructed the jury that insanity could negate intent, and that the jury had the task of determining in the instant case whether insanity negated Eubanks’ intent to injure Gibson. Thus, contrary to the contention of the appellants, the trial court’s charge did not demand a conclusive inference or presumption.

The appellants also contend, for the first time on appeal, that this jury charge’s mere use of the word “accidental” constituted an erroneous and harmful introduction of the defense of accident into the case. We do not address this contention, however, since that basis for objection was not asserted at trial. Chrysler Corp. v. Marinari, 182 Ga. App. 399 (3) (355 SE2d 719) (1987).

3. The trial court also instructed the jury that if it found that Eubanks had the intent to injure Gibson, then Eubanks’ “mental illness, insanity, delusion, or inability to distinguish right from wrong is not a defense to the policy exclusion.” In other words, the trial court informed the jury that mental illness was not a winning defense unless it negated intent on the occasion in question. This was a correct statement of law under State Farm &c. Ins. Co. v. Gross, supra.

4. Appellants objected to Nationwide’s requested charge that “an act of self-defense is, in and of itself, an intentional act.” The giving of this instruction is enumerated as error on appeal on the ground that self-defense was not an issue in the case and that it was not adjusted to the evidence because, unlike the situations in Stein v. Mass. Bay Ins. Co. and Brown v. St. Paul Fire &c. Ins. Co., supra, where the assailants intended in fact to injure the persons they shot in self-defense, Eubanks’ action was precipitated by his insane and psychotic delusion that his life was in danger. However, both psychiatric experts testified that Eubanks was reacting in self-defense to a perceived threat, and other witnesses testified that there had been an argument and harsh words between Gibson and Eubanks prior to the shooting.

“ ‘The defenses of self-defense and justification do not deny the intent to inflict injury, but claim authority for the act under the legal excuse of reasonable fear of immediate serious bodily harm to oneself or another. (Cit.) Since an accident defense involves the lack of intent to do the act at all (cit.), the two defenses are inconsistent. (Cits.)’ (Emphasis supplied.) [Cit.]” Stein, supra at 813. As previously discussed, an exclusion such as the one here involved “is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting, injury is different either in kind or magnitude from that intended or expected. [Cit.] Thus, there is a recognized distinction between intentional and unintentional results of intentional acts. “Intent” is defined in Restatement, Torts 2d, § 8A (1965) “to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” “On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.” [Cit.]’ [Cit.]” Brown, supra at 216. Applying that general rule to the facts here, there was sufficient evidence that the shooting was the result of Eubanks’ acting in self-defense, delusional though it might be, to create an issue proper for jury determination. “ ‘ “Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” (Cits.)’ [Cit.]” Kelley v. Foster, 192 Ga. App. 95, 96 (3) (383 SE2d 646) (1989).

Decided April 2, 1990

Rehearing denied April 16, 1990

William R. McCracken, for appellants.

Hull, Towill, Norman & Barrett, George R. Hall, Neal W. Dickert, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0364.
    SWIEDLER v. FERGUSON et al.
    (393 SE2d 456)
   Birdsong, Judge.

Edward Swiedler sued John Ferguson and Judy Ferguson for fraud, breach of contract, and negligence in connection with the Fergusons’ sale to Swiedler of a farmhouse, alleging certain defects in the construction and condition of the premises. The jury returned a verdict in favor of the defendants on the fraud and breach of contract counts, but returned a verdict in favor of plaintiff Swiedler on the issue of negligence. The trial court issued a judgment n.o.v., striking the award on grounds that inasmuch as the Fergusons had not built the house, “the negligence verdict returned against [them] is not supported by law. A claim of negligence can only be asserted against a builder-seller. Williams v. Runion, 173 Ga. App. 54 [325 SE2d 441]; Holmes v. Worthey, 159 Ga. App. 262 [282 SE2d 919]; affirmed, 249 Ga. 104 [287 SE2d 9], The law does not authorize a claim of negligence against one who is merely an owner-seller.”

Swiedler appeals, contending that he had a negligence cause of action pursuant to Section 552 of the Second Restatement of Torts, as noted in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503). Further, Swiedler argues that the Holmes v. Worthey decision did not hold that only a builder-seller could be found liable for negligence in the sale of a house. Held:

1. Having carefully analyzed our decision in Holmes v. Worthey, 159 Ga. App. 262, supra, we can state authoritatively that it did not hold, or mean to hold, that only a builder-seller may be held accountable for negligence in the sale of a house or building. However, that distinction is a fine one, for in concluding that a buyer does have a cause of action for negligence against a builder-seller, we relied upon the premise generally that the builder-seller is in the business of building and selling dwellings and thus is in a direct position of responsibility for the existence of any defects; and, moreover, is generally in a superior position to know of or discover latent defects which he created, and which the buyer could not reasonably discover. Further we found that no just reason or public policy exists which should excuse him for negligence in the building and selling of a dwelling. None of these premises apply in the usual case of a sale of a dwelling by an owner or agent who did not build it.

Moreover, in Holmes v. Worthey, we took pains to condition our ruling on the precise premises just described, and reiterated at p. 272, that but for those precise circumstances, the doctrine of caveat emptor still applies as established by the courts of this state. See esp. P. B. R. Enterprises v. Perren, 243 Ga. 280, 281 (253 SE2d 765). In affirming our decision in Holmes v. Worthey, the Supreme Court at 249 Ga. 104, 106, supra, acknowledged the limitations we placed upon the decision, by recognizing that the “existence of a negligence claim [against a builder-seller] depends . . . upon a comparison of the knowledge and expertise of the builder-seller with that of the purchaser.”

We do not deem it prudent, at least upon this case, to extend to ordinary homeowner-sellers the liability authorized by Holmes v. Worthey and by the older case of Davis v. Hopkins, 50 Ga. App. 654, 656 (179 SE 213), which involved a seller of a vacant lot who had knowledge or notice of a defective sewer on the property and did not advise the purchaser, who then built a house upon it.

The usual doctrine of caveat emptor applies to protect the mass of homeowners who, without being culpable of any fraud or deception or even “passive concealment” (see Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141)) might nevertheless find themselves, and the housing market, vexed to economic death by lawsuits by every purchaser of a house who discovers a defect which he believes the previous homeowner should have discovered and revealed. There is probably no such thing as a perfect house, especially one that has suffered the inevitable wear and tear of age and of being lived in; to hold the homeowner liable for any such defect would be to hold all homeowners liable for every flaw and defect, when in fact the purchaser knows or is placed upon reasonable notice that the house is not new and, almost certainly, not perfect.

Georgia law, as we made it clear in Holmes v. Worthey, provides adequate legal recourse for buyers who have been wilfully or “passively” deceived by a homeowner with actual superior knowledge of a material defect. The “economic loss” provision of the Second Restatement of Torts referred to by appellants (see Robert & Co. Assoc., supra, p. 681, fn. 1) does not create a simple cause of action for negligence in this or other like cases, for it plainly extends liability only to one who supplies “false information” to one who justifiably relies upon it, if such defendant “fails to exercise reasonable care or competence in obtaining or communicating the information.” (Emphasis supplied.) This provision is no more than an affirmation of the principles of “passive concealment” (Wilhite v. Mays, supra) or plain fraud, constructive or actual.

The jury in this case found defendants not liable for giving false information, and found no “passive concealment,” which is but an “apathetic form of fraud created as [an] exception to [the general rule of] caveat emptor.” Holmes v. Worthey, supra, 159 Ga. App. at pp. 268-269. Appellant does not present on appeal any argument or statement of evidence which shows any act by the seller extending beyond mere oversight or, perhaps, even negligence, but claims, e.g., that the water system was not sufficient to meet his needs. As to whether the jury found that such a condition or the sellers’ failure to disclose it, if they knew it, constituted negligence on the sellers’ part, we cannot say. We will not engage in unwarranted speculation regarding the thought process used by the jury in arriving at its verdict. See Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). However, clearly the jury found no fraud or breach of contract, and absent such circumstances or an “imminently dangerous condition,” (Holmes v. Worthey, supra, p. 264), we find it inappropriate to found a cause for negligence on mere defective or inadequate conditions in a “used” house, about which the buyer was not overtly or passively misled. Caveat emptor is still the general rule.

Accordingly, the trial court did not err in giving judgment n.o.v. to defendants.

2. The fact that defendant Judy Ferguson was the sales agent, or was listed as sales agent, for the sale of the house does not, by compounding the situation, alter the result, absent any provision of law making real estate agents liable for negligence on some other footing.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Decided April 2, 1990

Rehearing denied April 16, 1990

Patter & Land, Carl A. Crowley III, for appellant.

Weymon H. Forrester, for appellees.


text:
    A90A0428.
    CAUSEY v. THE STATE.
    (393 SE2d 468)
   Deen, Presiding Judge.

Appellant Causey was convicted by a Floyd County jury of the offenses of violation of the Georgia Controlled Substances Act and possession of a dangerous drug. He alleges that the trial court erred in denying his motion to suppress.

The record indicates that prior to trial an assistant district attorney had informed the court that the search warrant under which Causey had been apprehended had been issued for premises occupied by a Donna Lynn Burkhalter who was not the person of the same name at whose residence appellant had been arrested, and that the search of the premises and Causey’s consequent arrest had therefore been fortuitous and without basis in probable cause. The trial court denied the motion and held that defendant/appellant’s motion was not such as to come under the aegis of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), and was, moreover, immaterial to Causey’s situation. In support of its ruling the trial court cited both Brady, supra, and Gilreath v. State, 247 Ga. 814, 822 (279 SE2d 650) (1981). Appellant contends that even if, arguendo, the material was not covered by Brady, it was nevertheless favorable to him and the motion to suppress should therefore have been granted. Held:

A motion to suppress must be filed in a timely manner, or the right to file will be deemed to have been waived. Van Huynh v. State, 258 Ga. 663, 664 (373 SE2d 502) (1988); Waller v. State, 251 Ga. 124 (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984); Lazarz v. State, 187 Ga. App. 107 (369 SE2d 355) (1988); Wilcoxen v. State, 162 Ga. App. 800 (292 SE2d 905) (1982).

Furthermore, the record indicates that, contrary to appellant’s allegations, the warrant was correct in .all essentials except for the misidentification of the co-defendant as a person having a different name. It is difficult to see how this error in identity of the co-defendant could have been exculpatory of appellant or could otherwise have constituted a violation of Brady. We find no merit in appellant’s enumeration of error.

Decided April 2, 1990

Rehearing denied April 16, 1990.

John E. Sawhill III, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.

         The key to the misidentification appears to be that Donna Lynn Burkhalter had at one time been married to appellant Causey’s brother and later to a Mr. Holbrook, and that she was known by all three names.


text:
    A90A0015.
    DANIEL v. THE STATE.
    (393 SE2d 500)
   Pope, Judge.

Franklin E. Daniel, Jr., appeals from his conviction of aggravated assault.

The evidence showed that on March 18, 1988, Daniel went to the trailer of his estranged wife, who was home sick from work watching television with the youngest of her three children. The victim testified that Daniel gave her some roses, which he put on the TV set. They argued a while about whether she would go “mudding” and “plinking” with him (i.e., driving a Jeep around in the mud and shooting at tin cans), and then Daniel went into the bedroom and brought out his .22 caliber pistol and some ammunition. He loaded a clip into the pistol, aimed it at her and shot the victim in the neck, but took her to the hospital at her request. The gunshot wound left the victim permanently paralyzed from the chest down. Daniel testified that the relationship between him and his wife “had been on rocky ground for a long time,” but that there was no argument and the pistol had accidentally misfired without his putting his finger on the trigger. Three of his friends testified that they had previously used this pistol and sometimes when the trigger was pressed once it would fire several times.

On appeal Daniel complains that the trial court erred in permitting the victim to testify about filing suit for divorce and a warrant she took out against him for simple battery which she later withdrew; in allowing the warrant to be introduced in evidence; and in charging the jury in regard to evidence of prior difficulties between himself and his wife. We find no error.

Decided April 16, 1990.

Elkins & Gemmette, James A. Elkins, Jr., for appellant.

William J. Smith, District Attorney, Douglas C. Pullen, Assistant District Attorney, for appellee.

“The general rule is that where the accused is on trial for assaulting and injuring or killing the victim, evidence of prior difficulties between the parties may be shown if they are such as to tend to throw light on the transaction in issue. A trial court does not err in admitting evidence of a previous difficulty between a defendant and victim which illustrates the state of feeling between them.” (Punctuation and citations omitted.) King v. State, 177 Ga. App. 788, 789 (2) (341 SE2d 307) (1986). Accord Cannon v. State, 257 Ga. 475 (3) (360 SE2d 592) (1987).

The fact that Daniel and the victim were in the process of obtaining a divorce was relevant to their relationship and the feelings between them, and the trial court allowed the victim to testify in this regard only for that limited purpose. This was likewise true of the victim’s testimony that she had taken out a warrant for simple battery against Daniel because she was scared of him, and was in fact due to appear in court on the day she was shot, but had withdrawn the warrant after Daniel threatened her, paid her $100 and ordered her to do so. Thus this evidence was admissible to prove that the shooting was an aggravated assault, not an accident as Daniel contended, and the charge thereon was proper. Williams v. State, 259 Ga. 495 (1) (c) (384 SE2d 654) (1989). Accord Stratton v. State, 257 Ga. 593 (3) (362 SE2d 47) (1987).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0032, A90A0192.
    THE STATE v. THURMOND; and vice versa.
    (393 SE2d 518)
   Banke, Presiding Judge.

In August of 1988, an indictment was returned charging defendant Thurmond with selling marijuana. A jury found him guilty on this charge, following which he filed a motion for new trial and a motion in arrest of judgment, both of which were denied on January 31, 1989. On March 27, 1989, Thurmond filed both an “extraordinary motion for new trial” and a motion for leave to file an out-of-time appeal. The trial court granted the motion for leave to file an out-of-time appeal, whereupon Thurmond filed a notice of appeal from the overruling of his motion for new trial; however, on August 1, 1989, the court vacated its order granting leave to file the appeal and instead granted Thurmond a new trial. On that same date, Thurmond filed a “plea of former jeopardy.” Although the record before us does not reflect the court’s ruling on the latter plea, the state asserts that it was granted. Case No. A90A0032 is an appeal by the state from the court’s order granting the defendant’s extraordinary motion for new trial, while case No. A90A0192 is an appeal by Thurmond from the “judgment of conviction and the overruling of his post trial motions by order dated January 31, 1989.” Held:

Decided April 16, 1990.

Timothy G. Madison, District Attorney, for appellant.

N. David Wages, for appellee.

1. The state’s appeal is dismissed on the ground that it is not authorized under OCGA § 5-7-1 to appeal the grant of a new trial in a criminal case. See generally State v. Hollomon, 132 Ga. App. 304, 306 (208 SE2d 167) (1974).

2. Thurmond’s appeal is dismissed on the ground that the issues raised therein have been rendered moot by the grant of his extraordinary motion for new trial.

Appeals dismissed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0046.
    PHELPS v. THE STATE.
    (393 SE2d 501)
   Deen, Presiding Judge.

Appellant Phelps was stopped for speeding on highway 1-95 in Liberty County. While one of the law enforcement officers was writing the citation, the other requested permission to search the vehicle for weapons or drugs. According to the officer’s testimony, Phelps replied, “I don’t have any of that,” and handed over the car keys. One of the officers then proceeded to search the interior of the vehicle. A paper bag visible in the automobile’s interior light was found under the dashboard; it contained a white, powdery substance resembling cocaine. At that point the officer drew his gun and informed appellant that he was under arrest for possession of cocaine. According to the officers’ testimony, Phelps replied, “I know.”

At the hearing on Phelps’ motion to suppress, appellant testified that he had given neither written nor oral consent to the search of his vehicle. The officers testified that one of them had left his consent forms in his own vehicle and that the driver had run out of them. They testified further that it was standard procedure in the Liberty County Sheriff’s Department to obtain either written or oral consent to search; and that, moreover, they had attempted to record Phelps’ oral consent on a micro-cassette tape-recorder. They testified, however, that the noise of traffic on the heavily traveled highway had rendered the recording almost totally unintelligible, and that through inadvertence it had subsequently been discarded.

Decided April 16, 1990.

John E. Sawhill III, William F. Sparks, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., J. Stephen Archer, Assistant District Attorneys, for appellee.

The trial court denied the motion to suppress, and at trial a jury found Phelps guilty as charged. On appeal he enumerates as error the denial of the motion to suppress, alleging that the State had failed to prove that the search was consensual and, further, had violated appellant’s due process rights by failing to retain allegedly exculpatory evidence in the form of appellant’s statements on the tape recording. Held:

It is well settled that, unless clearly erroneous, the ruling of the trial court on questions of fact and credibility at a hearing on a motion to suppress will not be disturbed on appellate review. Woodruff v. State, 233 Ga. 840 (213 SE2d 689) (1975); Seals v. State, 181 Ga. App. 687, 688 (353 SE2d 577) (1987). We find no error here.

Appellant contends that the State’s failure to produce the tape on which Phelps allegedly gave his consent — or refusal — violated his due process rights under the Fourteenth Amendment. Our scrutiny of the record indicates that the failure to produce the tape did not violate either the Fourteenth Amendment or the mandate of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in the judgment only.


text:
    A90A0047.
    FOWLER v. THE STATE.
    (393 SE2d 517)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of two counts of aggravated assault. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts and from the denial of his motion for new trial.

1. Appellant enumerates the general grounds. Contrary to appellant’s contention, the victim’s “[a]wareness is not an essential element of the crime of aggravated assault. [Cit.]” Sutton v. State, 245 Ga. 192, 193 (1) (264 SE2d 184) (1980). Accordingly, the trial court did not err by refusing to direct a verdict of acquittal on that ground. Stevens v. State, 176 Ga. App. 583, 584 (1) (336 SE2d 846) (1985). A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Sutton v. State, supra at 193 (3).

Decided April 16, 1990.

William D. Hentz, for appellant.

Stephen F. Lanier, District Attorney, for appellee.

2. Appellant enumerates as error the failure of the trial court to give a timely written request to charge on the use of force in defense of habitation.

The evidence is in conflict as to who first displayed a weapon. However, it is undisputed that appellant shot the victims while they were seated in a truck approximately 100 feet from the porch of his mother’s home. The trial court charged the jury on the defense of justification and on the use of force to prevent a violent felony. As there is no evidence that either of the victims was attempting an unlawful entry into the home in a violent or tumultuous manner, the trial court did not err in refusing to give the additional instruction on defense of habitation. Harvard v. State, 162 Ga. App. 218, 219 (3) (290 SE2d 202) (1982). Compare Fannin v. State, 165 Ga. App. 24 (299 SE2d 72) (1983).

Judgments affirmed.

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


author: Sognier, Judge.

text:
    A90A0274.
    THE STATE v. TEDFORD.
    (393 SE2d 502)
   Sognier, Judge.

Richard Donald Tedford was arrested and charged with misdemeanor theft by taking. His motion to suppress the evidence obtained in searches of his car and home was granted, and the State appeals.

Appellee was employed by MARTA to repair the signs on its buses, and in that capacity appellee had access to the garages where the drivers returned the buses after completion of their routes. On December 30, 1987, a MARTA security officer discovered appellee on a bus parked at the Hamilton garage holding a brown paper bag containing $55.10 in coins and MARTA tokens. After determining that appellee had not been authorized to perform any repair work on that bus, MARTA Sgt. Phillip Finley arrested appellee for theft of money and tokens from the bus fare box. Appellee had $2,686 in small bills on his person at the time of his arrest. Averring that for a number of months MARTA had been experiencing thefts from fare boxes of buses parked in its garages and that appellee had been found on a bus with money and tokens apparently taken from the bus, Sgt. Finley obtained a warrant to search appellee’s car, where he found a small number of coins and tokens and a MARTA bus seat. Sgt. Finley then submitted another affidavit and application for a warrant for the search of appellee’s house in which he described the events leading to appellee’s arrest, detailed the evidence found in the search of the car, noted that appellee was a suspect in the prior thefts, and stated that officials of other transit systems had informed him that in cases of employee theft they often found large stashes of coins in the suspects’ homes. The ensuing search yielded several milk jugs, wine bottles, and coffee cans filled with a total of $388.43 in coins and a few small bills.

Reasoning that the State did not have probable cause to search appellee’s car, and thus the evidence found in the first search could not be used as a basis for obtaining the second warrant for the search of his home, the trial court granted appellee’s motion to suppress the fruits of these searches, and in a supplemental order ruled the evidence found in appellee’s car was inadmissible at trial.

The State contends there was probable cause for the searches at issue because appellee had been a suspect in the prior thefts as a consequence of the access to the buses his job afforded him, and he was apparently in the act of stealing money from a bus when he was discovered and arrested. We agree and reverse. Under the “totality of the circumstances” test, State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984), the magistrates who issued the warrants sub judice were authorized to conclude that there was a reasonable probability that contraband or evidence of a crime would be found in appellee’s home and car. See id. at 348. The evidence set forth in the affidavits was sufficient to establish that appellee had been found on a bus without authorization holding a bag of coins and tokens; his job gave him regular access to buses in the garages; money and tokens previously had been stolen from the fare boxes of buses parked in the garages; and Sgt. Finley’s investigations had led him to believe that the thief might have stored the fruits of these crimes in his home or car. Thus, there was a reasonable inference that some contraband might remain under appellee’s dominion and control. See State v. Boswell, 131 Ga. App. 657, 661 (2) (206 SE2d 682) (1974); see generally Luck, supra.

We disagree with the trial court’s conclusion that the searches were not authorized because the fruits of the crime for which he was arrested had already been seized, as that evidence, combined with appellee’s unique access and the fact of prior similar thefts, reasonably led the investigators to conclude there was a fair probability of discovering evidence of other crimes. “Police investigation based on other similar and related incidents which, when studied as parts of a scheme or design, would lead the reasonable mind to light upon the particular suspect, comprises good probable cause. [Cits.]” Wilkes v. State, 166 Ga. App. 771, 772 (1) (305 SE2d 388) (1983). We also reject appellee’s contention that the information concerning other thefts was “stale” because the affidavits indicated the presence of an ongoing scheme. Luck, supra at 347. “[W]e conclude the affidavit[s] in this case when subjected to a practical common-sense test clearly established probable cause to believe that [evidence or contraband] was then present in [appellee’s] home [and car].” State v. Fultz, 171 Ga. App. 886, 889 (321 SE2d 381) (1984). Accordingly, the trial court erred by granting the motion to suppress and by issuing the supplemental order.

Decided April 16, 1990.

James L. Webb, Solicitor, Michael A. Barkin, Assistant Solicitor, for appellant.

John R. Martin, for appellee.

Judgment reversed.

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


text:
    A90A0424.
    NATIONAL SURETY CORPORATION v. O’DELL.
    (393 SE2d 504)
   Sognier, Judge.

Larry O’Dell brought suit against “John Doe” to recover damages resulting from a vehicular accident in which he alleged that the unknown motorist failed to yield the right of way or stop at a stop sign, causing O’Dell, who was driving his employer’s dump truck, to swerve and crash. O’Dell served National Surety Corporation, the employer’s uninsured motorist insurance carrier, which answered in its own name and denied liability based on the lack of contact between O’Dell’s vehicle and the John Doe vehicle. The trial court denied the insurer’s motion for summary judgment and we granted its application for an interlocutory appeal.

OCGA § 33-7-11 (b) (2) provides that “in order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured,” except where “the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” The parties agree that there was no physical contact between the vehicles in the case sub judice. Appellant contends the trial court erred by denying its motion for summary judgment because the record includes no corroboration by an eyewitness to the incident of appellee’s claim that the accident was caused by another vehicle, and thus, because the exception in OCGA § 33-7-11 (b) (2) was not satisfied, appellant was entitled to summary judgment as a matter of law. We agree and reverse.

We note initially that in November 1988 the trial court denied appellant’s motion for summary judgment based on the pleadings, discovery, and the depositions then on file. In July 1989, over appellant’s objection, the trial court granted appellee’s motion to supplement the record pursuant to OCGA § 5-6-41 (f) with another deposition, taken in March 1989. We need not decide whether the trial court acted properly in permitting such supplementation of the record, because we find that even if the supplemental deposition is considered, appellant should have been granted summary judgment.

Appellee claims that his truck was forced to swerve off the road and turn over in a ditch by an unknown vehicle which pulled into his path. Neither J. W. Mason nor David Miller, whose deposition testimony is relied on as corroboration by appellee, actually corroborated appellee’s description of how the accident occurred. Both witnesses, who were employed by a convenience store across the road from the scene of the accident, saw the truck overturn, but Mason deposed that “I don’t have any idea what caused [appellee’s truck] to turn” over and that he had no opinion as to what caused the truck to wreck, and Miller testified at deposition when asked about what caused the accident that he “didn’t see that part.” Although appellee also relies on the police report of the accident, which states that appellee was traveling west when an unknown vehicle turned out of the store into his path, Mason’s deposition testimony that the police officer was not present when the accident occurred was not controverted, and it is clear from the record that the description in the report was based on appellee’s statement. Thus, although several witnesses saw the truck turn over, no eyewitness corroborated, except by conjecture, appellee’s claim that the accident was caused by the unknown vehicle.

“In Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987), the Supreme Court insisted on a narrow interpretation of OCGA § 33-7-11 (b) (2), saying that ‘(i)f the General Assembly had intended (something other than the literal meaning of the words used in the statute), it could have so specified.’ [Cit.]” Hoffman v. Doe, 191 Ga. App. 319, 320 (381 SE2d 546) (1989). Because the statute requires that the claimant’s description of how the accident occurred “be corroborated in its material allegation, i.e., implication of the unidentified vehicle,” id. at 321, and that the corroboration be given by an eyewitness, appellee failed to satisfy the requirements of the statute, and the trial court erred by denying appellant’s motion for summary judgment.

Decided April 16, 1990.

R. Patrick White Law Offices, Terence A. Martin, for appellant.

Cramer, Weaver & Edwards, Christopher C. Edwards, for appellee.

Judgment reversed.

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