text:
    76912.
    DAY v. THE STATE.
    (374 SE2d 87)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with three counts of aggravated assault. The jury returned guilty verdicts as to two of the three counts. The trial court entered judgments of conviction and sentences on the guilty verdicts. Appellant appeals from the denial of his motion for new trial.

1. The general grounds are raised in several of appellant’s enumerations of error. “The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. [Cit.] We find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Thompson v. State, 166 Ga. App. 850, 851 (1) (305 SE2d 662) (1983).

2. Appellant filed a pretrial demurrer to the indictment, assert-

ing that it was “defective and insufficient as it fails to set out a specific or valid violation of the laws of Georgia.” The trial court’s overruling of the demurrer is enumerated as error. The indictment upon which appellant was tried sufficiently tracks the applicable language of OCGA § 16-5-21 (a) (2). Accordingly, the trial court did not err in overruling the demurrer. See OCGA § 17-7-54; Rushin v. State, 180 Ga. App. 276 (1) (348 SE2d 910) (1986).

3. The trial court did not err when it delegated to the assistant district attorney the responsibility for propounding to the jury the statutory questions provided in OCGA § 15-12-164. See Hicks v. State, 232 Ga. 393, 399-400 (207 SE2d 30) (1974).

4. The denial of appellant’s motion that a prospective juror be stricken from the jury panel for cause is enumerated as error. We note at the outset that, although the State urges that appellant’s failure to have exhausted his peremptory strikes is dispositive of this enumeration, it is clear that this will no longer serve to “render the error[, if any,] harmless.” Harris v. State, 255 Ga. 464, 465 (2) (339 SE2d 712) (1986). Accordingly, the merits of this enumeration must be addressed.

The prospective juror was challenged on the ground that he was related to one of the victims within the prohibited degree. See OCGA § 15-12-163 (b) (4). The prospective juror’s brother was the step-father of the victim and, thus, the prospective juror was the step-uncle of the victim. Accordingly, the victim and the brother of the prospective juror were certainly related but the victim and the prospective juror himself were not related within any degree. See generally Central R. & Banking Co. v. Roberts, 91 Ga. 513, 516 (1) (18 SE 315) (1893); Daniel, Ga. Crim. Trial Prac., § 18-18 (1987 ed.). Although the prospective juror did indicate that he had “heard” about the incident, he affirmed that this would not cause him “to lean toward one side of the case or the other” and that he would render “a decision based on the evidence.” The trial court did not err in refusing to grant appellant’s motion that the prospective juror be stricken from the jury panel for cause. See generally Smith v. State, 148 Ga. App. 1 (2) (251 SE2d 13) (1978); Todd v. State, 143 Ga. App. 619 (1) (239 SE2d 188) (1977).

5. After the rule of sequestration had been invoked, the investigating officer was allowed, over appellant’s objection, to remain in the courtroom but was not required to testify first. There was no error. See Davis v. State, 242 Ga. 901, 903 (3) (252 SE2d 443) (1979).

6. During the cross-examination of a witness for the State, appellant introduced an exhibit into evidence. At the conclusion of the State’s case, appellant rested without calling any witnesses or introducing any evidence in his own behalf. The trial court correctly held that, under these circumstances, the State had the right to open and to conclude the argument to the jury. See Mitchell v. State, 169 Ga. App. 630, 632 (3) (314 SE2d 468) (1984).

7. Several of appellant’s enumerations of error concern the trial court’s jury charge.

The refusal to give appellant’s requested charge on reckless conduct as a lesser included offense is enumerated as error. There is, however, no construction of the evidence which would authorize a finding that appellant, in stabbing the victims, had committed the crime of reckless conduct. Compare Bowers v. State, 177 Ga. App. 36, 39 (2) (338 SE2d 457) (1985). Under the evidence, appellant was guilty of aggravated assault or was not guilty of any crime. Accordingly, it was not error to refuse to give the requested charge on reckless conduct as a lesser included offense. See Riley v. State, 181 Ga. App. 667, 669 (3) (353 SE2d 598) (1987).

Likewise, it was not error to refuse to give the following requested charge: “Mere presence at the scene of the crime, even when coupled with flight from authority, without more, is not sufficient for conviction.” See Lofton v. State, 157 Ga. App. 447 (1) (278 SE2d 94) (1981).

Since the trial court’s charge did include a correct instruction on the credibility and impeachment of witnesses, it was not error to refuse to give the charge that appellant had requested on that issue. See generally Williams v. State, 149 Ga. App. 34 (3) (253 SE2d 432) (1979).

Based upon an asserted “gap in time” between the trial court’s giving of a general charge on intent and its giving of a charge on aggravated assault, appellant urges that the jury may have erroneously inferred that his mere act of causing injury to the victims, regardless of his intent, was sufficient to find him guilty. As against this assertion, Cade v. State, 180 Ga. App. 314, 316 (4) (348 SE2d 769) (1986) is not, as appellant contends, distinguishable and the holding therein is controlling in this case.

8. Several of appellant’s enumerations of error relate to the trial court’s consideration, during the sentencing hearing, of a prior conviction of appellant.

Receipt by appellant’s counsel, prior to jury selection, of notice of the State’s intent to use the prior conviction in aggravation of any sentences imposed in this case was timely notice pursuant to OCGA § 17-10-2. See generally Cobb v. State, 244 Ga. 344, 354 (20a) (260 SE2d 60) (1979); Morrison v. State, 155 Ga. App. 234 (3) (270 SE2d 397) (1980). Although a certified copy of appellant’s prior conviction may not have been attached to the pretrial notice, this would not serve to render inadmissible the certified copy that was subsequently tendered at the sentencing hearing. See Fox v. State, 163 Ga. App. 601, 602 (2) (295 SE2d 563) (1982). The failure to move for a continu-

anee precludes appellant from asserting that his counsel was not afforded an ample opportunity to investigate the admissibility of the prior conviction as evidence in aggravation of the sentences imposed in this case. See Morrison v. State, supra at 234 (3); Taylor v. State, 149 Ga. App. 30, 32 (4) (253 SE2d 428) (1979). Likewise, the fact that appellant’s prior conviction was for the commission of a crime more than 10 years previously did not render it inadmissible in the sentencing hearing. “The date that the prior offenses were committed does not control.” Clark v. State, 146 Ga. App. 799, 800 (247 SE2d 489) (1978).

9. Appellant was convicted of committing an aggravated assault upon two separate individuals. Accordingly, the trial court did not err in imposing two sentences rather than one. See generally Satterfield v. State, 248 Ga. 538 (3) (285 SE2d 3) (1981).

10. When, in the sentencing hearing, the trial court indicated that it was considering restitution as an element of the sentences that it would impose, appellant requested that “there be a fact finding . . . that he could pay it. . . .” Despite appellant’s request, no such “fact finding” was ever made by the trial court. As to Count I of the indictment, appellant was sentenced to twenty years. As to Count II, appellant was given a consecutive sentence of ten years on probation, conditioned upon his payment of a fine and restitution of the unpaid medical bills of the victim. Appellant enumerates the trial court’s imposition of the conditionally-probated sentence on Count II as erroneous for failure to conduct a hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983).

OCGA § 17-10-8 authorizes the imposition of a fine as a condition of a probated sentence for a felony conviction. Likewise, OCGA § 17-14-3 authorizes the payment of restitution as a condition of the probation of a sentence imposed against an adult criminal defendant. Pursuant to the mandate of Bearden v. Georgia, supra, however, “where payment of a fine [or restitution] is made a condition precedent to probation, a defendant’s probation may not be revoked or withheld because of his failure to pay the fine [or restitution] without a showing of wilfullness on his part or inadequacy of alternative punishments.” Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984). “The only possible factual distinctions of significance between this case and Massey are that this case concerns a conditionally [probated] sentence which will commence only after [the] unconditional sentence of imprisonment [on Count I] has been served, whereas Massey concerned a conditionally probated sentence which was to begin immediately. We see no significance to these distinctions, and agree . . . that the [trial] court should have conducted a Bearden hearing after sentencing [appellant], and that the [trial] court’s failure to do so renders [appellant’s] conditionally probated] sentence unconstitutional.” Gaither v. Inman, 253 Ga. 484 (322 SE2d 242) (1984).

Accordingly, appellant’s conditionally-probated sentence on Count II must be reversed and the case remanded with direction that appellant be resentenced on that count in accordance with Bearden and Gaither. Compare Ludden v. State, 176 Ga. App. 109, 111 (4) (335 SE2d 428) (1985) (wherein the payment of a fine was not made a condition precedent to the defendant’s probation, but a condition subsequent to his remaining on probation). Moreover, the imposition of the payment of restitution as a condition of a probated sentence must comport with OCGA § 17-14-10, which requires that the trial court take certain enumerated factors into consideration and that it make written findings relative to those factors. See Garrett v. State, 175 Ga. App. 400, 401 (1) (333 SE2d 432) (1985). There was no compliance with OCGA § 17-14-10 as to the conditionally-probated sentence imposed upon appellant as to Count II. Accordingly, if, after holding the hearing required by Bearden and Gaither, the trial court again determines that restitution should be made a condition of appellant’s probation on Count II, it is further directed to enter an order which comports with the requirements of OCGA § 17-14-10.

11. Appellant’s remaining enumerations of error which are not otherwise addressed have been considered and found to be without merit.

12. The judgment of conviction and the sentence as to Count I are affirmed. The judgment of conviction as to Count II is affirmed. The sentence as to Count II is reversed and the case is remanded with direction for resentencing in accordance with Division 10 of this opinion.

Judgments of conviction affirmed.

Sentences affirmed in part and reversed with direction in part. Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, comments should be made on two cases cited and relied upon, to wit: Ludden v. State, 176 Ga. App. 109, 111 (4) (335 SE2d 428) (1985), and Central R. & Banking Co. v. Roberts, 91 Ga. 513, 516 (1) (18 SE 315) (1893).

As to the former case of Ludden, one judge failed to agree with all that is said in this case. Therefore, its precedential value is in doubt. As to the latter cited case of Central R. & Banking Co., this is a landmark case written by Chief Justice Bleckley, speaking for the court, who expressed the point in that case well, stating in part, at 517:

“The groom and bride each comes within

The circle of the others kin; But kin and kin are still no more Related than they were before.”

Decided September 6, 1988

Rehearing denied October 3, 1988

Nancy A. Bradford, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    76911.
    McCONNELL v. THE STATE.
    (373 SE2d 111)
   Birdsong, Chief Judge.

William Ross McConnell was tried for failure to dim headlights (OCGA § 40-8-31) and driving under the influence. He was acquitted of the charge of failure to dim headlights and convicted of driving under the influence. Held:

1. McConnell appears to assert that because the police officer lacked probable cause to stop him on November 22, 1986, for failure to dim headlights, he was entitled to a directed verdict of acquittal on the DUI charge. He argues that the officer and McConnell were traveling in opposite directions on a divided highway, i.e., four lanes divided by a single grassy median, which is not a “roadway” as defined by OCGA § 40-1-1 (48); therefore, he concludes his actions did not violate the express proscription of § 40-8-31. Thus, he argues, since he was not offending the law when he was stopped, the stop (and the subsequent charge of DUI) is without probable cause.

The evidence at the motion to suppress hearing showed the officer was “blinded” by the high beam lights of appellant’s vehicle as they passed, and that he turned in the median to pursue appellant, the officer driving 90-100 mph to catch up and when he finally did, after three miles, he determined appellant was driving 65 mph. Appellant was not charged with speeding and the officer did not give speeding as the reason for the stop. When the officer approached appellant, he noticed appellant “was staggering, he had bloodshot eyes, [and] he had a strong odor of alcohol on his breath.”

We find that whether the officer had probable cause to believe appellant had actually committed a crime in failing to dim his headlights on a divided highway, he had at least an articulable suspicion and reasonable grounds for the stop. The officer had “a founded suspicion . . . some basis from which the court can determine that the detention was not arbitrary or harassing. [Cits.]” Coley v. State, 177 Ga. App. 669, 670 (341 SE2d 9). Reasonable minds cannot differ that the officer’s actions here were reasonable and not arbitrary and harassing but were based on a founded suspicion authorizing a brief stop. See Eisenberger v. State, 177 Ga. App. 673, 675 (340 SE2d 232). Moreover, the stop was authorized on grounds of speeding, whether or not appellant was charged with speeding. In Eisenberger, the fact that the defendant was found guilty of improper lane change certainly supported the conclusion that the stop was based on probable cause; but the fact that a defendant is found not guilty of the charge for which he was stopped, or that he in fact committed no crime, does not automatically render the stop “arbitrary or harassing.”

Where we have held that probable cause is lacking in a police stop for behavior that is not unlawful, the stop was in fact completely arbitrary and harassing, because the defendant in such case was not observed to commit a crime, but simply was thought to be “up to something” when he turned off the main highway into a wooded area (Brooks v. State, 129 Ga. App. 109 (198 SE2d 892)); or the car was stopped when there had been no observation of the violation of a law or ordinance. Kelly v. State, 129 Ga. App. 131 (198 SE2d 910). An officer may in appropriate circumstances approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, 392 U. S. 1, 22 (88 SC 1868, 20 LE2d 889). In fact, the premise of the Terry decision is that a person may be stopped where there is no crime, if the officer has an “articulable suspicion” of such.

If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. It is not the officer’s function to determine on the spot such matters as, e.g., jurisdiction or the legal niceties in definition of a certain crime, for these are matters for the courts. See Harley v. State, 183 Ga. App. 253, 254-255 (358 SE2d 653); Meneghan v. State, 132 Ga. App. 380, 382 (208 SE2d 150). The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable (id.) and not arbitrary or harassing. Harley, supra at 255.

In this case, the officer’s reasonable belief that an offense had been committed, though he may have been mistaken either as to fact or law, was yet a sufficient “founding suspicion” to enable the trial court to determine the stop was not mere arbitrariness or harassment, which is the real question. This stop was not lacking in reasonable cause or articulable suspicion. Terry, supra. Appellant was thus not entitled to a directed verdict of acquittal for lack of probable cause to stop.

Decided October 3, 1988.

William R. Oliver, for appellant.

Lydia S. Jackson, Solicitor, Raymond E. George, Assistant Solicitor, for appellee.

2. The appellant argues the evidence does not show him to have been under the influence of alcohol to a degree which renders him less safe or incapable of driving safely. See Howell v. State, 179 Ga. App. 632 (347 SE2d 358).

This enumeration is without merit. The arresting officer gave a detailed description of appellant’s behavior which had led him to suspect appellant had been driving under the influence: he could not keep his balance and his body swayed back and forth; he had a strong odor of alcohol on his breath, and his eyes were bloodshot. The officer administered field tests for sobriety (probable cause), some of which appellant passed and some he failed. In addition, appellant was given an intoximeter test, which showed .17 grams percent alcohol in appellant’s blood.

These facts are ample to enable a rational trier of fact to conclude beyond a reasonable doubt that appellant did drive under the influence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. The trial court did not err in failing to give appellant’s request to charge to the jury: “I charge you that an officer of the law is not authorized to stop a vehicle unless the officer has specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.”

The evidence clearly showed the officer had an articulable suspicion, a “founding suspicion” to believe a crime had been committed; the stop was therefore based on reasonable cause, if not probable cause, and was not unlawful. Therefore, no harm came to the defendant by the refusal to charge this principle to the jury.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.


author: Deen, Presiding Judge.

text:
    77239.
    MILLINES v. THE STATE.
    (373 SE2d 838)
   Deen, Presiding Judge.

Appellant Millines was charged with burglary, robbery, aggravated assault (two counts), and armed robbery (two counts) in connection with unauthorized entry into the home of an elderly couple, who awoke at approximately 2:00 a.m. to find him in their kitchen. Millines was charged with wresting the old man’s pistol from him; with threatening (while armed with the pistol) to rape or kill the woman and kill her husband; with beating both of them; and with taking certain items of personal property (including, inter alia, rifles and shotguns) from the persons and presence of both, these latter robberies occurring while Millines was armed with the pistol.

Within less than four hours after the incident was reported to the police, a man answering the assailant’s description, and carrying items of property subsequently identified as having been taken from the victims’ house, was picked up on the street; and shortly thereafter this man, appellant here, was positively identified by the less badly injured of the victims.

A Fulton County jury found Millines guilty as charged on all six counts. He appeals from the convictions and sentences for armed robbery and aggravated assault on the ground that the offenses merged as a matter of fact, and from the robbery and armed robbery convictions and sentences on the ground of merger as a matter of law. He also enumerates as error the general grounds and the court’s failure to “protect” him from the alleged eliciting of prejudicial matter by the prosecutor. Held:

1. We find without merit appellant’s assertion, in his first enumeration, that the trial court erred in imposing convictions and sentences for both armed robbery and aggravated assault inasmuch as the two allegedly merge as a matter of fact. In so contending, he relies on OCGA § 16-1-7 (a) (1): “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if [o]ne crime is included in the other.” OCGA § 16-1-6 provides, in pertinent part, “A crime is . . . included [in a crime charged in the indictment or accusation] when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person [or] property ... or a lesser kind of culpability suffices to establish its commission.” A review of the facts of the case sub judice reveals that those facts do not come with the statutory criteria, supra, for lesser included offenses or merger. Each offense charged is clearly supported by its own set of facts. Cf. Taylor v. State, 177 Ga. App. 624 (340 SE2d 263) (1986). The case at bar is therefore distinguishable from such cases as Hambrick v. State, 256 Ga. 148 (344 SE2d 639) (1986), and Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982). Nor is a different conclusion dictated by Ramsey v. State, 145 Ga. App. 60 (243 SE2d 555) (1978). See also Miller v. State, 174 Ga. App. 42 (329 SE2d 252) (1985); Evans v. State, 173 Ga. App. 655 (327 SE2d 784) (1985); Harshaw v. State, 134 Ga. App. 581 (215 SE2d 337) (1975). This enumeration is without merit.

2. Likewise without merit is Millines’ assertion that the offenses of robbery and armed robbery merge as a matter of law, and that the trial court therefore erred in imposing convictions and sentences for both offenses. The record clearly shows that appellant not only robbed the male victim of his pistol, by wresting it from his hand immediately upon the couple’s becoming aware of the intruder’s presence in the house, but that he subsequently used the pistol to effect the armed robbery of watches and other jewelry from both the victims, and afterwards to rob the elderly man of the guns displayed above the fireplace. These occurrences, although happening within a short total span of time, were according to the record entirely separate instances of robbery — the taking of the pistol from the man clearly defined by OCGA § 16-8-40 (a), and the taking of the jewelry and the rifles and shotguns from both man and wife fitting squarely within the provisions of OCGA § 16-8-41 (a). Under the standard set forth in Ramsey v. State, supra, and other relevant case law, the two offenses do not merge as a matter of law where, as here, separate incidents (the simple taking of the pistol and the taking of the other items at gunpoint) involved different actions, different specific objectives or intents, and different victims. As in his first enumeration, supra, appellant attempts to make distinctions that are not supported by either law or fact.

3. Our scrutiny of the trial transcript reveals not only that appellant failed at trial to register objection to the testimony challenged on appeal (whether by objecting, requesting curative instructions, or moving for mistrial), but that at least one portion of the testimony to which he now objects was elicited not by the prosecution, but by defense counsel on cross-examination. Failure to object at trial constitutes waiver, and there is nothing for the appellate court to review. Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976), cert. denied 428 U. S. 911, reh. denied 429 U. S. 874; Hill v. State, 183 Ga. App. 654 (360 SE2d 4) (1987); Williams v. State, 183 Ga. App. 373 (358 SE2d 914) (1987).

4. As to appellant’s enumeration of the general grounds, it is well settled that the appellate court assesses not the weight of the evidence, but its sufficiency. Wayne v. State, 184 Ga. App. 160 (361 SE2d 39) (1987). Examination of the record in its entirety indicates that sufficient competent evidence was adduced to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thurman v. State, 255 Ga. 286 (336 SE2d 746) (1985). Appellant’s final enumeration is without merit.

Decided October 3, 1988.

Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Joseph J. Drolet, Doris L. Downs, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77258.
    THE STATE v. WHITE.
    (373 SE2d 840)
   Deen, Presiding Judge.

Wayne C. White was involved in an automobile accident during the early morning hours. The officer who responded to the police call noticed that White was leaning against a sign when he arrived at the scene. While speaking with him, the officer noted that White’s speech was slightly slurred, that he was a little incoherent, that he was slightly unsteady on his feet, and that he smelled of alcohol. Upon inquiry by the officer as to whether he had been drinking, White admitted that he had had a couple of beers. The officer administered field sobriety tests and then arrested him for DUI and making an improper left turn. The officer read White his implied consent rights on the scene, and the accused stated that he wanted a blood test as his independent test. The officer then inquired as to the name or phone number of someone who could administer the test. White could not think of anyone, so the officer asked the name of his family doctor. White stated that it was a “Dr. Hefferman,” but he was unable to give the officer the doctor’s telephone number or address. Appellee was taken to jail. At the jail, the officer again read the implied consent warning and asked him for someone he could call to administer the independent test. White stated that he could not think of anyone and submitted to the State’s breath test. He was subsequently booked without having been given an independent test. Upon cross-examination the arresting officer revealed that White was never given the opportunity to ascertain his family doctor’s telephone number or address. The State brings this appeal from the trial court’s order suppressing the results of the State-administered breath test. Held:

The State contends that appellee’s request for an independent blood test was untimely, since he had not submitted to the State’s test at the time the request was made and relies upon Huff v. State, 144 Ga. App. 764 (242 SE2d 361) (1978), as authority. See also Modlin v. State, 176 Ga. App. 83 (335 SE2d 312) (1985). The facts in Huff indicate that the accused made his request during the ride to the police station and he “did not indicate any desire for alternate testing after being so advised.” Huff at 765. In Modlin, appellant refused to take the State-administered test and therefore waived his right to an alternate test.

Decided October 3, 1988.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellant.

The accused must be informed of his right to an independent test at the time of his arrest so that he may, if he so desires, challenge the accuracy of the State-administered test at the time when such a challenge would be meaningful. Garrett v. Dept. of Public Safety, 237 Ga. 413 (228 SE2d 812) (1976). Under the law as set forth in Huff and Modlin, the State has the right to have its test performed before the defendant’s right to take a test attaches because a refusal to take the test constitutes a waiver of the right to an independent test. If he elects to have an independent test done, he may make this election after being informed of his informed consent rights.

The facts in evidence indicate that appellee wanted an independent test after being informed of his right to have one, but he was never given the opportunity to ascertain his doctor’s address or telephone number. In Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978), this court stated: “The law gives one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing. But of what value is that right if the accused is in the custody of law enforcement officials who either refuse or fail to allow him to exercise the right? We hold that under such circumstances there is coupled with the right granted to the accused a corresponding duty on the part of law enforcement officers not to deny him that right.” Under OCGA § 40-6-392 (a) (3), “The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of the law enforcement officer.” The police have no duty to make arrangements for an accused’s independent test, but they are required to act reasonably once he has made the necessary arrangements to procure an independent test. Harper v. State, 164 Ga. App. 230 (296 SE2d 782) (1982).

In the instant case, the officers did not even permit him to make the necessary arrangements to take the desired test by denying him access to information which would have provided the telephone number and/or address of his personal physician. Accordingly, we find that the trial court did not err in granting appellee’s motion to suppress.

Judgment affirmed.

Carley and Sognier, JJ., concur.

William S. Lewis, for appellee.


text:
    77278.
    FORTSON v. KISER et al.
    (373 SE2d 842)
   Deen, Presiding Judge.

The appellant, Walter Fortson, as counsel for John Garner, filed a civil action against the appellees in the State Court of Gwinnett County. Fortson subsequently withdrew as counsel, and the appellees later were granted summary judgment. The appellees then moved for attorney fees to be assessed against both Garner and Fortson, pursuant to OCGA § 9-15-14. Fortson filed a petition for declaratory judgment in the state court, but voluntarily dismissed it when the appellees challenged the state court’s power to hear such a petition. Fortson then filed a new petition for declaratory judgment in the superior court. The superior court eventually dismissed the petition on the basis that the state court could and should determine the issues presented in the petition, and this appeal resulted. Held:

1. “It is well established that ‘(w)here the questions to be answered are legal ones determinable in another proceeding then in progress between the same parties, in a court having jurisdiction to determine them, the court will ordinarily refuse to entertain a declaratory judgment proceeding. [Cit.]’ Darnell v. Tate, 206 Ga. 576, 581 (58 SE2d 160) (1950).” Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 381 (317 SE2d 269) (1984). Fortson expressed two concerns in seeking declaratory judgment: (1) his withdrawal as counsel from Garner’s action against the appellees should preclude an award against him for attorney fees under OCGA § 9-15-14; and (2) he was unable to defend against the appellees’ claim for attorney fees without revealing information protected by the attorney-client privilege. Both issues are legal ones, and the state court has jurisdiction to determine them; accordingly, the superior court did not err in refusing to entertain the declaratory judgment petition. OCGA § 9-4-2 (c) authorizes relief by declaratory judgment even where the complaining party has other adequate legal remedies, but, contrary to Fortson’s contention on appeal, that statute obviously does not require the availability of such relief.

2. The appellees’ motion for imposing on Fortson a penalty for .filing a frivolous appeal, pursuant to Rule 26 (b) of the Rules of the Court of Appeals, is denied.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided October 3, 1988.

W. Roy Mays III, for appellant.

Phillip S. McKinney, for appellees.


text:
    77311.
    RIVERS v. GOODSON.
    (373 SE2d 843)
   Deen, Presiding Judge.

Tolliver R. Rivers filed a complaint against William B. Goodson alleging that Goodson had slandered him in testimony given at a Federal Communications Commission (FCC) hearing presided over by an Administrative Law Judge. Rivers appeals from the grant of summary judgment in favor of Goodson. Held:

The FCC subpoenaed Goodson to appear and testify before the ALJ In the Matter of Silver Star Communications of Albany, FCC Docket Number 86-155. An attorney for the FCC questioned appellee on direct examination about an assault against him in 1981 and asked questions about the subsequent investigation into the identity and origin of Goodson’s assailants. After the judge overruled an objection to questions as to who was behind the attack, the FCC attorney asked appellee if, as a result of his personal investigation and other investigations, he had reached a conclusion as to the identity of the attackers. Goodson replied, “I have no conclusion as to the identity of the attackers.” The attorney then asked, “Did you reach any conclusion regarding the — any individuals connected with these two individuals that attacked you?” Goodson replied that he had, and when questioned as to conclusions he replied, “I believe the attackers were hired by Mr. James L. Rivers and his family.” Rivers brought his slander action against Goodson approximately one year later.

Witnesses who testify in judicial proceedings are absolutely privileged against defamation actions arising out of their responsive testimony. Veazy v. Blair, 86 Ga. App. 721, 724 (72 SE2d 481) (1952); Horton v. Tingle, 113 Ga. App. 512, 514 (149 SE2d 185) (1966). In Fedderwitz v. Lamb, 195 Ga. 691, 696 (25 SE2d 414) (1943), the characteristic of an absolute privilege, as distinguished from a conditional privilege, was determined to be the issue of malice. Malice is not an issue in absolute privilege; “all inquiry into good faith is closed.” As stated in Horton v. Tingle, supra, the test for applying the privilege is whether a witness’ answer is responsive to an individual question and not, as asserted by appellant, whether it embraces the ultimate issue before the court.

Decided October 3, 1988.

Ben B. Mills, Jr., for appellant.

Gary C. Christy, for appellee.

In the instant case, objections to this line of questioning were overruled, and the witness was required to answer the questions asked by counsel for the FCC. His response was absolutely privileged.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77331.
    WRIGHT v. PORTMAN et al.
    (373 SE2d 844)
   Deen, Presiding Judge.

The appellant, Ronald Wright, worked for John Portman & Associates (or a predecessor architectural firm) from 1964 until his discharge on October 11, 1982. At the time of his discharge, he sold his interest in the Group “P” Investors, a general partnership that owned a portion of the Peachtree Hotel Company, which owned the Peach-tree Plaza Hotel. Wright commenced this action against the general partnership, as well as John Portman (who purchased Wright’s interest), Stanley Steinberg, and John Street, who were individual partners, seeking damages on the theory that he had agreed to the sale only because of fraud and duress. The trial court directed a verdict for the defendants, and Wright appeals.

Because Wright’s work performance had deteriorated to an unacceptable level due to his alcoholism, Steinberg and Street, who were responsible for the day-to-day operation of John Portman & Associates, decided that Wright’s employment had to be terminated; they did so on October 11, 1982, upon Wright’s return from another voluntary hospitalization for treatment. Concerned that Wright would have no means of support, Steinberg and Street informed Wright that Portman had agreed to purchase Wright’s partnership interest for $20,000, an interest for which Wright initially paid $476.20 and an interest that, having heretofore produced only tax losses, would be useful to Wright only as a tax shelter to current income. No definite representations were made concerning the value of the interest. Stein-berg and Street encouraged Wright to consult with an attorney before deciding to sell, but Wright decided on the spot to accept the offer. Pursuant to the agreement, Wright received $4,000 immediately, and thereafter monthly payments of $2,000 for the following 8 months; later on (after he commenced this action), he also received an additional $11,027 to cover his tax liability for the sale of the partnership interest.

In this action, Wright claimed fraud and duress in that Portman, Steinberg, and Street, well aware of his mental and physical frailty resulting from his battle with alcoholism, took advantage of that frailty to bilk him out of a partnership interest far more valuable than the consideration actually received. (At the trial, Wright’s expert witness testified that the interest had a value ranging from $149,158 to $342,837; however, he acknowledged that this valuation was of December 31, 1983, not October 1982, and that the interest actually would have a negative value, taking into account other information not considered in his original valuation.) Following the commencement of this action, Portman offered to rescind the sale, but Wright declined the offer, lacking the funds to rescind. Held:

1. “ ‘Duress is considered as a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury, and, like fraud, constitutes a meritorious ground to set aside a contract executed as a result thereof.’ [Cit.] ‘Duress which will avoid a contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.’ [Cit.] ‘The threats must be sufficient to overcome the mind and will of a person of ordinary firmness.’ [Cit.]” Tidwell v. Critz, 248 Ga. 201, 203 (282 SE2d 104) (1981). (Emphasis supplied.)

In this instance, Wright is wrong in claiming that his physical and mental unhealth, combined with the impending financial distress due to his loss of employment, raised a factual issue of actionable duress. There simply was no evidence of any threats or acts amounting to coercion by the appellees that induced Wright to sell his partnership interest contrary to his own free will to make a choice and to be responsible for the choice made. The evidence demanded a finding that no actionable duress was shown, and the trial court properly directed a verdict for the appellees.

2. Likewise, the trial court correctly directed a verdict for the appellees with regard to any claim for fraud. Wright testified that at the time of the offer to purchase his partnership interest, he was given the impression that the amount offered was a very fair deal. Assuming that this impression constituted a representation of fact, there was no confidential relationship between Wright and the appellees that excused Wright from the exercise of common prudence and diligence before relying upon the representation. As Wright did nothing to determine the fairness of the terms of the sale, despite the encouragement to consult with an attorney, no actionable misrepresentation was shown, thus defeating any fraud claim. United Fed. Savings &c. Assn. v. Eubank, 180 Ga. App. 402 (349 SE2d 268) (1986).

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided October 3, 1988.

Johnny B. Mostiler, for appellant.

C. B. Rogers, Tony G. Powers, for appellees.


author: ,Deen, Presiding Judge.

text:
    77384.
    TRAWICK v. JACKSON et al.
    (374 SE2d 114)
    Decided October 3, 1988.

      David J. Turner, Jr., for appellant.

      Samuel A. Murray, Allen C. Levi, for appellees.
   ,Deen, Presiding Judge.

In this action for damages arising from a motor vehicle collision, a jury returned a verdict and award in favor of the plaintiff. The trial court, however, granted the defendants’ motion for new trial, and following the new trial the jury rendered a verdict against one defendant but in favor of two other defendants. The appellant now attacks the trial court’s grant of the motion for new trial, which was based on the general grounds. “[T]he first grant of a new trial to either party is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded.” Holton v. Jones, 174 Ga. App. 654, 655-56 (331 SE2d 26) (1985). The original verdict set aside by the trial court was not absolutely demanded.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Banke, Presiding Judge.

text:
    76443.
    MAHONE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (373 SE2d 809)
   Banke, Presiding Judge.

Mahone appeals an order granting summary judgment to State Farm Mutual Automobile Insurance Company and denying his own motion for summary judgment in an action to recover, as third-party beneficiary, upon a policy of motor vehicle liability insurance issued by State Farm to one Thomas Sherman.

The appellant incurred property damage when the vehicle identified on the declarations page of Sherman’s policy collided with a building owned by the appellant. The vehicle was being operated at the time by a Ms. Adrienne Guffie, who had purchased it from Sherman subsequent to the issuance of the State Farm policy. Ms. Guffie had paid Sherman $500 down at the time of the transaction and had agreed to pay him an additional $500 in periodic installments. In return, Sherman had transferred possession of the vehicle to Guffie and had also signed the transfer statement on the certificate of title. However, he had retained possession of the title certificate as security for the balance owing on the purchase price. He chose not to cancel the State Farm liability insurance policy, which was to expire by its terms on July 9, 1985.

The collision occurred on June 9, 1985. As of that date, Guffie had paid Sherman $900 toward the $1,000 purchase price of the vehicle. Sherman reported the accident to State Farm on June 17, 1985, and simultaneously disclosed to State Farm his previous sale of the vehicle to Guffie. The appellant thereafter brought suit against Guffie and Sherman to recover for his alleged loss. State Farm defended Sherman in that action but not Guffie, with the result that Sherman was awarded summary judgment (see Mahone v. Sherman, 187 Ga. App. 540 (370 SE2d 806) (1988)), while Guffie suffered a default judgment in the amount of $35,000. In the present action against State Farm, the appellant seeks to collect his judgment against Guffie. Held:

1. The policy specifies that State Farm will: “1. Pay damages which an insured becomes liable to pay because of: (a) bodily injury to others, and (b) damage to or destruction of property including loss of its use, caused by accident resulting from the ownership, maintenance or use of your car; and 2. Defend any suit against an insured for such damages with attorneys hired and paid by us.” The term “insured” is defined by the policy as “1. You [i.e., the named insured]; 2. Your spouse;. . . [or] 4. Any other person while using such a car if its use is within the scope of consent of you or your spouse.” (Emphasis supplied.) While State Farm concedes that the policy was in force at the time of the accident, it contends that Guffie cannot be considered an insured within the contemplation of the policy because Sherman no longer owned the vehicle and consequently was powerless to consent to Guffie’s use of it. We disagree.

In Auto-Owners Ins. Co. v. Smith, 178 Ga. App. 420 (343 SE2d 129) (1986), we held that an insurer could not escape liability for damages caused by the operation of a vehicle owned by the named insured’s son where the vehicle in question was specifically described in the policy declarations and where the policy did not specifically purport to exclude coverage with respect to scheduled vehicles which were not actually “owned” by the policyholder or titled in his name. More recently, in Watson v. Southern Ins. Co., 185 Ga. App. 223 (363 SE2d 629) (1987), we held that an insurer could not escape liability for damages caused by the operation of a non-owned automobile identified as an insured vehicle on the declarations page of the policy, even though by its terms the policy in that case purported to cover persons other than the named insured only in connection with their use of vehicles which were both “ ‘owned by the named insured and described in the declarations.’ ” Id. at 224.

While acknowledging that the foregoing cases are factually distinguishable in that the identity and existence of the drivers involved therein were known to the insurers at the time the policies were issued, we find that the rationale upon which those cases were decided is equally applicable to the present case. As stated by the court in Auto-Owners Ins. Co. v. Smith, supra, 178 Ga. App. at 422-423: “It would have been a simple matter for the insurer to have drawn its policy so as to extend coverage only to such vehicles as [the policyholder] actually ‘owned’ or as were ‘titled’ in his name. However, construing the policy, as actually written, against the insurer and giving due consideration to this state’s public policy as regards compulsory motor vehicle liability insurance, the trial court’s ruling in favor of the existence of liability coverage was correct.” Compare Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692 (353 SE2d 186) (1987) (where a contrary result was reached with respect to the operation by the named insured of a non-owned vehicle which was not described in the policy declarations).

Because Guffie was unquestionably operating the insured vehicle with the approval and consent of the named insured at the time of the collision, and because the policy did not specifically provide for the termination of coverage in the event of a transfer of ownership of the insured vehicle, we hold, on the basis of the foregoing cases, that Guffie must be considered an “insured” under the terms of the policy.

2. The policy expressly required “the insured” both to give written notice of any accident as soon as reasonably possible and to forward to the insurer, as soon as practicable, every summons or legal process received by him. Pursuant to OCGA § 33-7-15 (b), a failure to comply with such a policy provision will, if prejudicial to the insurer, operate to “relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.”

State Farm contends that it was relieved of any obligation to defend Guffie or to pay the judgment rendered against her because she never submitted the required notice. However, the evidence of record reveals without dispute that the named insured, Sherman, reported the accident to State Farm eight days after it occurred and that he later mailed his copy of the appellant’s complaint to State Farm four days after being served with it, along with a letter requesting the company to assume responsibility for the defense of the case.

Decided September 19, 1988

Rehearing denied October 4, 1988

Herald J. A. Alexander, for appellant.

Jeffrey F. Leasendale, Richard G. Greer, for appellee.

It has been held that the notice requirement contemplated by OCGA § 33-7-15 is satisfied if the insurer receives notice of the suit either from an insured or from a third party. See Berryhill v. State Farm Fire &c. Co., 174 Ga. App. 97, 100 (329 SE2d 189) (1985). Because the named insured in this case clearly disclosed to State Farm at the time he reported the accident the fact that Guffie had been operating the vehicle, and because the complaint which he later forwarded to State Farm identified both himself and Guffie as defendants, there can be no question that the notice received by State Farm was adequate to enable it to protect its interests. We accordingly conclude that the statutory and contractual notice requirements were satisfied, with the result that State Farm was neither relieved of its obligation to defend the suit nor to pay the judgment entered against Guffie. Therefore, we hold that the trial court erred both in granting summary judgment to State Farm and in denying summary judgment to Mahone with respect to this issue.

Judgment reversed.

Birdsong, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    76570.
    EDWARDS v. THE STATE.
    (374 SE2d 97)
   Sognier, Judge.

Boyd Edwards appeals his conviction for the offenses of theft by deception, bigamy and recidivism.

1. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal on the charge of theft by deception on the general grounds that the State failed to prove the elements of the crime.

“The gravamen of [OCGA § 16-8-3 (a)] lies in obtaining the property of another by intentionally creating a false impression as to an existing fact or past event.” Mathis v. State, 161 Ga. App. 251 (288 SE2d 317) (1982). Viewing the evidence in the light most favorable to the prosecution, testimony was adduced that appellant, after marrying Louise Flournoy (hereinafter “Flournoy”), obtained at least $55,459 from her over the course of several months by representing to her that he would get her a “double return” on the money by investing it in several companies, he allegedly owned. Lieutenant Mike Bradley of the Carrollton Police Department testified that appellant admitted to him that a back-dated agreement appellant had Flournoy sign after she had given him the money, in which she agreed to provide appellant’s company, Edwards Enterprises of Charlotte, North Carolina, with $56,000 in exchange for 20 percent interest on that money as insured by “Global Insurance Co., Inc., bonding agents,” contained “mostly fictitious” information. Appellant admitted that the insurance company did not exist, and Lt. Bradley’s own investigations revealed that appellant’s company did not exist either in Georgia or in North Carolina. Flournoy did not recover the money or receive any return on it.

“The weight of the evidence and credibility of witnesses are questions for the jury. [Cit.] We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Davis v. State, 180 Ga. App. 299, 300 (1) (349 SE2d 29) (1986).

2. Appellant asserts the trial court erroneously denied his motion for a directed verdict of acquittal on the charge of bigamy on the general grounds, as well as because venue was not proper in Carroll County. At trial, Flournoy testified that she married appellant on September 4, 1985 in Dillard, South Carolina; that they returned that day to her home in Carroll County where appellant spent the night; and that appellant was “home” later on the December day that Lt. Bradley visited her in order to speak to appellant. Lt. Bradley testified that appellant told him that he (appellant) married Ruby Mallet in Marshall, Texas; that Lt. Bradley went to Texas and obtained a certified copy of the marriage license dated August 28, 1985; that after talking to Mallett, Lt. Bradley obtained a certified copy of the annulment decree obtained by Mallett which was not entered until October 7, 1985.

Although appellant argues venue is proper only in South Carolina, the cases supporting this position, see Pitts v. State, 147 Ga. 801, 802-803 (2) (95 SE 706) (1918) and McBride v. Graeber, 16 Ga. App. 240 (3) (85 SE 86) (1915), were rendered prior to the enactment, in Ga. L. 1968, p. 1249, § 1, of the current statute, OCGA § 16-6-20 (a), which provides: “A person commits the offense of bigamy when he, being married and knowing that his lawful spouse is living, marries another person or carries on a bigamous cohabitation with another person.” (Emphasis supplied.) Thus, Pitts and McBride, supra, construing earlier bigamy statutes, no longer have the force of law and we agree with the State that under OCGA § 16-6-20 (a), venue is proper for the offense of bigamy in the county where a person, being married and knowing the lawful spouse is living, carries on a bigamous cohabitation with another person. We hold that the evidence presented by the State was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt both that appellant had committed the offense of bigamy and that venue for the prosecution properly lay in Carroll County. See generally Jackson v. Virginia, supra; Felton v. State, 184 Ga. App. 570, 571 (1) (362 SE2d 107) (1987).

3. Regarding appellant’s general grounds objection to his conviction of recidivism, we find the evidence of appellant’s felony convictions in Virginia, Arizona, and Alabama sufficient to meet the standard of proof required by Jackson, supra, so as to support appellant’s conviction under OCGA § 17-10-7.

4. Appellant contends he was denied the right to a thorough voir dire of prospective jurors when the trial court sustained the State’s objection to two voir dire questions requested by appellant. Appellant argues the questions had a direct bearing on testimony to be presented during trial, asserting that his Question No. 4 related to evidence that appellant was being sued for divorce by inquiring whether the jurors felt an individual should be subject to criminal prosecution and civil liability for the same set of circumstances, and that his Question No. 5 related to appellant’s defense of mistake of fact by inquiring whether the jurors felt that “a person should be convicted of a crime and face the possibility of a prison sentence due to a mistake in belief of facts, which if the facts had been as the person thought, there would have been no crime?”

“The purpose of voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. [Cit.]” Mathis v. State, 176 Ga. App. 362, 363 (336 SE2d 299) (1985). “ ‘Conduct of voir dire is within the discretion of the trial court and the court’s rulings are presumed proper in the absence of some manifest abuse of discretion. [Cit.]’ [Cit.]” Ridgeway v. State, 174 Ga. App. 663, 665 (3) (330 SE2d 916) (1985). Since Question No. 4 dealt with matters beyond the specific case and Question No. 5 required a response from a juror which might amount to a prejudgment of the case, there was no abuse of the trial court’s discretion in refusing these questions. See generally Curtis v. State, 224 Ga. 870, 871 (2) (165 SE2d 150) (1968); Bowens v. State, 116 Ga. App. 577, 578-580 (4) and (6) (158 SE2d 420) (1967).

5. Appellant asserts the trial court erred by overruling his motion for a continuance, thereby denying him his right to be present during the course of the trial. The transcript reveals that after trial commenced on October 20, 1986, appellant complained of chest pains and on the recommendation of appellant’s physician, the trial court continued the trial until the following day. When court reconvened, appellant was not present and the court was informed appellant had missed his doctor’s appointment scheduled for that morning; that appellant’s hotel room had been “cleaned out”; and that appellant’s attorney had not heard from him since the previous evening and did not know where he was. The motion for continuance made by appellant’s counsel was denied by the trial court.

This case is factually indistinguishable from Byrd v. Ricketts, 233 Ga. 779 (213 SE2d 610) (1975), in which it was held that “[confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial. [Cits.]” Id. at 780. Pollard v. State, 175 Ga. App. 269 (333 SE2d 152) (1985), cited by appellant, is distinguishable from the case sub judice in that the defendant therein voluntarily absented himself prior to trial before jeopardy attached. We find no error in the trial court’s denial of the motion for continuance.

6. Appellant contends the trial court erred by admitting statements appellant made to the police because the statements were elicited from appellant with a “hope of benefit” that the charges against appellant would be prosecuted in a federal district court rather than a Georgia superior court. Even if we were to accept appellant’s contention that it was not he who first raised the idea of federal court prosecution (see Dickey v. State, 157 Ga. App. 13, 14 (1) (276 SE2d 75) (1981)), “we conclude that the benefit involved was not ‘hope of lighter punishment (induced by one other than the defendant)’ [cit.], but was a collateral benefit which does not render a confession inadmissible. OCGA § 24-3-51 . . . .” Patrick v. State, 169 Ga. App. 302 (1) (312 SE2d 385) (1983). Compare Johnson v. State, 238 Ga. 27-28 (1) (230 SE2d 849) (1976). Appellant’s statements were properly submitted to the jury.

7. At trial, appellant’s counsel made a hearsay objection to testimony by Hoyt Johnson that he had asked the Carrollton Police Department to investigate appellant after learning from his (Johnson’s) sister that appellant was trying to get money from their mother. After the trial court allowed the evidence on the basis that it explained conduct, see OCGA § 24-3-2, appellant’s counsel moved to strike the testimony because it was not based on Johnson’s personal knowledge, and requested curative instructions to that effect. The trial court instructed the jury that “any evidence this witness had that was related by other witnesses is not admitted for the purposes of showing the truth, or the untruth, of that information but it is only to show the conduct of this witness in contacting the police authorities of this county; and, the evidence is not to be considered as the truth of whether or not it’s true or not true.” Appellant’s counsel afterwards stated that he understood the curative instructions, “but I feel the damage has still been done.”

Appellant contends the trial court erred by admitting Johnson’s testimony and denying his motion for a mistrial, arguing that the testimony unduly prejudiced the jury and placed appellant’s character into evidence. However, no objection was made to the testimony on this basis and it thus presents no question for this court’s consideration. See House v. State, 227 Ga. 257 (1) (181 SE2d 31) (1971). As to the hearsay objection based on the witness’s lack of personal knowledge, OCGA § 24-3-2 “permits certain evidence which would otherwise be hearsay so long as it is admitted for the limited purpose of explaining conduct or ascertaining motives.” Anderson v. State, 252 Ga. 103, 104 (312 SE2d 113) (1984). Although it could be argued that the admission of this evidence pursuant to OCGA § 24-3-2 was improper under Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982) and Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984), the evidence was not challenged on this ground and thus we cannot review that issue here. Mullins v. State, 176 Ga. App. 439, 440 (336 SE2d 343) (1985).

8. We find no reversible error in the trial court’s charge to the jury on the issue of flight. Flournoy testified that after telling appellant that Lt. Bradley was looking for him, appellant became very nervous, upset and started crying, asked her about a back way out of Carrollton, and left town within an hour. Further, there was appellant’s unexplained disappearance during the trial of this case. We find this to be sufficient evidence to authorize the jury instruction on flight. See Chester v. State, 169 Ga. App. 854, 855 (315 SE2d 56) (1984).

9. After the jury had retired to the jury room, the jurors sent a message to the trial judge inquiring whether they could recommend that the future and present assets of appellant be awarded to Louise Flournoy Edwards if appellant was found guilty. The trial court replied with a message stating that the jury could make such a recommendation but that the sentencing judge was not bound thereby. Upon receipt of the response, the jury returned with their verdict in the case. No objection was made to the exchange and when appellant’s counsel requested that the trial court poll the jury regarding their feelings in response to the trial court’s message in order to determine if the exchange unduly influenced the jury in their verdict, the trial court denied the request.

We find no merit in appellant’s final enumeration in which he asserts this refusal constituted reversible error in that it denied him the opportunity to determine what grounds, if any, were available to him for a request of mistrial due to the influence of the exchange. Even assuming, arguendo, the trial court’s response to the jury was incorrect or could have impermissibly influenced the jury’s verdict, appellant’s remedy was to object to the response and request curative instructions, not to request after the verdict was rendered that the jury be polled to determine what harm may have been done. No objection having been made to the communication between trial judge and jury, no error is presented for this court’s review. See generally Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987).

Decided September 9, 1988

Rehearing denied October 4, 1988.

E. Gordon Staples, Jr., for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    76837.
    WHITE REPAIR & CONTRACTING COMPANY v. OVIEDO et al.
    (373 SE2d 784)
   Carley, Judge.

Appellee-defendant Dr. J. R. Oviedo is a resident of Spalding County and the owner of a Fulton County apartment complex. The apartment complex was managed by appellee-defendant Fulton Associates, a corporation which maintains its registered office in DeKalb County. The chief executive officer of appellee Fulton Associates is appellee-defendant William Fulton, who is a resident of Fulton County. After the apartment complex was damaged by fire, appellee Dr. Oviedo instructed appellee Mr. Fulton to settle the property damage claim with the insurance company and to use the insurance proceeds to restore the damaged apartments to their former condition.

Appellee Fulton Associates contracted with appellant-plaintiff White Repair & Contracting Company for the performance of the repair work. When appellant was not paid for the repair work, it filed this suit against appellee Dr. Oviedo in Spalding County, seeking to recover from him the amount that it claimed to be owed under the contract. Appellant’s complaint alleged that appellee Fulton Associates was the agent of appellee Dr. Oviedo and that appellee Dr. Oviedo, as the principal, was personally bound by and was personally liable on the contract. Appellee Dr. Oviedo answered, denying the material allegations of the complaint. Appellant subsequently sought and obtained leave to amend its complaint so as to add appellees Fulton Associates and Mr. Fulton as defendants in the action.

Appellee Dr. Oviedo and appellant filed cross-motions for summary judgment. The trial court denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee Dr. Oviedo. The trial court then dismissed appellant’s complaint as against appellees Fulton Associates and Mr. Fulton, finding that, as to them, venue in Spalding County was no longer proper. In addition, the trial court granted various other motions which appellee Dr. Oviedo had filed in the case, but upon which the trial court had not ruled prior to granting his motion for summary judgment. Appellant appeals from the trial court’s order.

1. Appellant enumerates the trial court’s grant of appellee Dr. Oviedo’s motion for summary judgment as error, urging that a genuine issue of material fact remains as to whether he was personally bound by the contract which only appellee Fulton Associates had negotiated and signed.

The undisputed evidence shows that appellee Dr. Oviedo had requested that appellee Mr. Fulton serve as the “supervisor and/or general contractor” for the repair work, had authorized him to “sub-out all or any part of the work as [he] saw fit” and had given him the “responsibility to see that the building is restored to its condition prior to the fire damage.” The fee for providing this service was to be included in the settlement with the insurance company. Accordingly, the issue to be resolved is whether, under this evidence, appellee Fulton Associates was the agent of appellee Dr. Oviedo such that the latter would be personally bound by the contract which was negotiated and signed only by the former.

“ ‘The test to be applied in determining whether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract. [Cits.]’ [Cit.]” Spell v. Port City Adhesives, 183 Ga. App. 816, 817 (1) (360 SE2d 63) (1987). “The fact that a contractor employs, controls, and assumes entire charge over [the work] and that the employer neither has nor exercises any control, has, by many courts, including our own, been held practically decisive of the question of the independence of the contract ([cits.]). . . .” Bentley v. Jones, 48 Ga. App. 587, 591 (173 SE 737) (1934). When this test is applied to the undisputed evidence in the instant case, it is clear that the relationship between appellee Dr. Oviedo and appellee Fulton Associates was that of employer and independent contractor rather than that of principal and agent. Since appellee Fulton Associates “was an independent contractor and in no sense the agent of [appellee Dr. Oviedo] for the purpose of [contracting with appellant for the repair work], and [appellee Dr. Oviedo] was not liable to [appellant] for the [amount due under the contract.] [Cits.]” United Painting &c. Decorating Co. v. Dunn, 137 Ga. 307 (73 SE 492) (1912). See also Lynn v. Miller Lumber Co., 146 Ga. App. 230 (1) (246 SE2d 137) (1978). Accordingly, the trial court correctly granted summary judgment in favor of appellee Dr. Oviedo.

2. Appellant enumerates as error the trial court’s dismissal of its complaint as against appellees Fulton Associates and Mr. Fulton.

When appellee Dr. Oviedo, the only resident defendant, was granted summary judgment, venue in Spalding County was no longer proper as to appellees Fulton Associates and Mr. Fulton, the nonresident defendants. See OCGA § 9-10-34 (c). It was, however, error to dismiss appellant’s complaint as against them. The trial court should have entered an order transferring the case to a court where venue would be proper. See generally Edwards v. Edmondson, 173 Ga. App. 353, 354-355 (326 SE2d 550) (1985).

3. As indicated previously, appellee Dr. Oviedo had various other pending motions in the case in addition to his motion for summary judgment. The trial court did not rule on these other pending motions prior to granting summary judgment in favor of appellee Dr. Oviedo. Instead, the trial court, in the same order wherein it had previously granted the motion for summary judgment, purported to grant appellee Dr. Oviedo’s other motions. Appellant enumerates the trial court’s grant of these other motions of appellee Dr. Oviedo as erroneous.

“[T]he grant of a motion for summary judgment under [OCGA § 9-11-56 (b)] would terminate the underlying action. . . .” [Cit.] Cato Oil &c. Co. v. Lewis, 250 Ga. 24, 26 (2), fn. 1 (295 SE2d 527) (1982). Accordingly, once the trial court had granted summary judgment in favor of appellee Dr. Oviedo, the action as against him was terminated. Thus, when the trial court undertook thereafter to grant appellee Dr. Oviedo’s other motions, it was granting the motions of one who had no standing as a party to the action. See generally Lankford v. Holton, 197 Ga. 498 (29 SE2d 498) (1944). Moreover, once the trial court had granted appellee Dr. Oviedo’s motion for summary judgment, venue of appellant’s remaining action as against appellees Fulton Associates and Mr. Fulton was no longer proper in Spalding County. Thus, when the trial court granted appellee Dr. Oviedo’s other motions, it was ruling in an action which should have been transferred to another court where venue was proper. See generally Edwards v. Edmondson, supra.

It follows that to give any legal effect to the trial court’s subsequent grant of the other pending motions of appellee Dr. Oviedo’s would be to sanction the exercise of control over appellant’s suit against appellees Fulton Associates and Mr. Fulton by a trial court wherein proper venue over that suit was lacking. As we have held in Division 2, after the trial court had granted appellee Dr. Oviedo’s motion for summary judgment, “[t]he proper order . . . [was] an order transferring [appellant’s] case, as to the nonresident [appellees Fulton Associates and Mr. Fulton], pursuant to Art. VI, Sec. I, Par. VIII of the 1983 Constitution. [Cit.]” Edwards v. Edmondson, supra at 355. It necessarily follows that the trial court’s grant of appellee Dr. Oviedo’s motions other than his motion for summary judgment must be reversed. Rulings and orders in appellant’s suit against appellees Fulton Associates and Mr. Fulton can be sought only hy the parties to that action and can be entered only by a trial court wherein venue properly lies.

Decided September 7, 1988

Rehearing denied October 4, 1988

Nancy A. Bradford, Larry H. Evans, for appellant.

Robert H. Smalley, Jr., Tyler C. Dixon, for appellees.

4. The grant of summary judgment in favor of appellee Dr. Oviedo is affirmed. The grant of Dr. Oviedo’s other motions is reversed. The dismissal of appellant’s complaint as against appellees Fulton Associates, Inc., and Mr. Fulton is reversed and remanded with direction that the trial court enter an order transferring the case to a court in which venue would be proper.

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

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


text:
    77146.
    PORTER v. THE STATE.
    (373 SE2d 805)
   Banke, Presiding Judge.

The appellant, Willie Porter, was convicted of armed robbery. This is the second appearance of the case before this court. In Porter v. State, 182 Ga. App. 624 (356 SE2d 703) (1987), we determined that the appellant was entitled to a new trial due to an erroneous jury instruction. The retrial resulted in another guilty verdict, and Porter again appeals from the denial of his motion for new trial.

The victim testified that at approximately 11:00 p.m. on the night of October 14,1985, he drove his van to a neighborhood bank to use the teller machine and that as he approached the machine, a man, whom he identified as the appellant, walked up behind him. The victim stated that he was unable to complete his transaction because of an error and consequently offered to let the appellant go ahead of him, whereupon the appellant sprayed him in the face with Mace. He then attempted to flee toward the street but was pursued by the appellant and a co-defendant, Scott, both of whom continued to spray Mace at him. The victim testified that Scott ultimately brought him to the ground and held a gun to his head while “they” took his wristwatch and wallet. He stated that he then heard Scott say, “Willie, get the van,” whereupon both assailants got into his van and drove away in it. Shortly thereafter, the victim summoned the police and gave them a description of his van and his assailants.

Several hours later, the van was spotted by police, and a chase ensued. Scott was apprehended at this time, but a second occupant of the vehicle escaped on foot. On the following day, photographs of Scott and several of his known “associates,” including the appellant, were displayed to the victim, who thereupon identified both the appellant and Scott as his assailants. The victim was again positively identified by the appellant during the trial. The appellant offered an alibi defense consisting in essence of testimony by his mother that he had been at home asleep at the time of the offense. Held:

Decided September 15, 1988

Rehearing denied October 4, 1988

Michael T. McClain, for appellant.

1. The evidence was amply sufficient to authorize a rational trier of fact to find the appellant guilty of armed robbery beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The court did not err in excluding the testimony of a psychologist whom the appellant sought to offer as an expert witness in the field of eyewitness identification.

“Expert testimony is usually excluded . . . when the . . . subject matter is within the scope of the ordinary layman’s knowledge and experience. [Cit.] ... It may be stated that generally the best method of attacking the credibility of an eyewitness’ identification is by cross-examination. The memory of a witness may not be disparaged by other witnesses in order to impeach that testimony; it must be done by cross-examination of the witness whose recollection is attacked. [Cits.]” Jones v. State, 232 Ga. 762, 765 (208 SE2d 850) (1974). See also Bacon v. State, 178 Ga. App. 546 (2) (343 SE2d 774) (1986).

The excluded testimony would have concerned the general, statistical reliability of eyewitness identification and the effect of Mace on one’s vision. The victim was subjected to substantial cross-examination concerning his ability to view the perpetrators at the time of the incident. He testified unequivocally that the lighting conditions were good, that he “at all times” was able to observe the events, and that the Mace attack did not impair his ability to see. He expressed no uncertainty whatever concerning his identification of the two assailants. Under the circumstances, the proffered expert testimony was properly excluded as expressing a conclusion on a question which lay jurors would ordinarily be able to decide for themselves, based on their own knowledge and experience.

3. The appellant’s assertion that the court erred in declining to make funds available to him to retain the expert witness in question is rendered moot by our ruling in Division 2, supra.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Deborah Espy, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.


text:
    76314.
    LINER et al. v. NORTH.
    (373 SE2d 846)
   Birdsong, Chief Judge.

This is an appeal of the order of the superior court granting appellee’s motion for summary judgment. This action initially arose from a petition for citation of executor by appellants in the Probate Court of Walker County. On October 8, 1986, the probate court dismissed the petition on the basis of the statute of limitations. A de novo appeal was made to the superior court. See generally OCGA §§ 5-3-2; 5-3-29. Appellants subsequently filed an amended complaint in superior court. Appellees filed a motion to dismiss, which was granted in part and in effect narrowed the case to those issues which could have been prayed for in the probate court based on the original petition for citation. The appellees further filed a motion to dismiss based upon the statute of limitation ground relied upon by the probate court in its dismissal order. The superior court overruled this motion sub silentio and found that the statute of limitations had not run. Appellees subsequently filed a motion for summary judgment, which was granted by the superior court.

This court transferred this appeal to the Supreme Court; however, the Supreme Court declined appellate jurisdiction and returned the case to this court by order dated June 15, 1988. In returning this case, the Supreme Court characterized the present action primarily as “being one for money damages by the remaindermen of a testamentary trust against the executor of a will, based upon an alleged breach of duty by the executor in collecting and distributing estate assets. . . .” Held:

1. On summary judgment, movant has the burden of showing that “ ‘there is no genuine issue as to any material fact and that (he) is entitled to a judgment as a matter of law.’ [Cit.] When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.” Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637). Further, “the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Esco v. Jackson, 185 Ga. App. 901, 902 (1) (366 SE2d 309). However, mere assertions of fact contained in the briefs of the parties do not, standing unsupported by evidence of record, constitute competent evidence for the resolution of a summary judgment issue. Id.

2. Appellants enumerate as error that the trial court erred in concluding that “there was no genuine issue of any material fact that appellee had not failed in his duty to inform appellants that their remainder interest had been taken by a third person.”

The original petition for citation of executor placed appellee on notice that, inter alia, a claim was being made for the executor’s averred breach of fiduciary duties to the estate and for treating the assets of the estate as his own, together with certain other averments not here relevant. Thus, in addition to the primary averments of claiming an alleged breach of duty by the executor in collecting and distributing estate assets, the petition also initiated a specific claim for breach of the fiduciary relationship between the executory and the remaindermen heirs based on the executor’s allegedly failing properly to perform his fiduciary duties. This alleged breach of fiduciary duties included the failure to give the remaindermen heirs proper notice of known adverse claims to their trust interest, and included the assertion by the executor of a claim of title to the subject trust property allegedly adverse to that of the remaindermen.

An executor is a quasi court officer, Dobbs v. First Nat. Bank of Atlanta, 65 Ga. App. 796 (4) (16 SE2d 485). As such, an executor is cloaked with a presumption that he “will not by any act of omission or commission fail to perform or to exceed [his] authority in the discharge of any of [his] duties.” Id. But, an executor is also vested with “the sacred duty of standing in the place of the deceased and administering his estate as directed.” Id.; 12 EGL, Executors & Administrators, §§ 2, 7. Accordingly, it is generally recognized that an executor occupies “a fiduciary relation toward all parties having an interest in the estate.” 33 CJS, Executors & Administrators, § 3b; see, e.g., OCGA §§ 10-6-4; 10-6-30; 53-6-50 (2). Thus, an executor “occupies a place of trust and confidence.” 2 Redfearn, Wills & Administration in Ga., § 321. Further, the relationship between an executor and those he represents normally is deemed confidential and requiring the “utmost good faith.” OCGA § 23-2-58; see Ringer v. Lockhart, 240 Ga. 82, 84 (239 SE2d 349); Dorsey v. Green, 202 Ga. 655, 659 (44 SE2d 377); see also OCGA § 23-2-59. We find nothing in the facts of the case sub judice that would warrant a departure from these general policies of law.

As a general rule, “[t]he authority of an executor . . . continues until the estate has been completely administered, or until he dies, resigns, or is removed, or his letters revoked, or a temporary order of suspension is made.” 33 CJS, Executors & Administrators, § 78A. An executor may petition the court “to discharge him from his trust,” but not until he “has faithfully discharged all his duties.” OCGA §§ 53-7-140; 53-7-143; Fuller v. Fuller, 107 Ga. App. 429 (2) (130 SE2d 520). Until he is properly discharged or otherwise relieved by law, an executor retains the authority of that appointment and the obligations of that fiduciary relationship with those he represents.

Decided October 4, 1988.

William G. Schwall, for appellants.

In this case, appellee failed to petition for discharge and thus retained the full panoply of powers and duties of an executor. In fact, the record reflects that as late as December 1985 and June 1986, appellee executed certain warranty deeds exercising power “as Executor of the Estate of Leroy Monds.” Accordingly, appellee remained in a fiduciary relationship with the appellants “ ‘upon the footing of the utmost candor and upon considerations demonstrative of the absence of any undue advantage.’ ” See Smith v. Smith, 230 Ga. 616, 621 (198 SE2d 307).

As a fiduciary, appellee acquired a number of legal duties in relation to appellants. Among these duties were the duty to avoid potential conflicts of interest and the duty to give full and fair disclosure in a timely manner of all known things adversely affecting the appellant beneficiaries’ rights in the subject matter of the dealings. See Powell v. Thorsen, 253 Ga. 572, 574 (3) (322 SE2d 261); Ringer v. Lockhart, supra at 84; see also Spratlin, Harrington & Thomas v. Hawn, 116 Ga. App. 175 (2) (156 SE2d 402); 3 AmJur2d, Agency, § 272.

We are satisfied in light of the posture of record that a genuine issue of material fact exists regarding whether appellee North breached his fiduciary duties to the appellants, particularly by failing to notify them timely regarding any known adverse claims of ownership to that portion of the undivided one-half partnership interest which also was the subject of their interest as beneficiary remainder-men.

3. Appellants also enumerate as error the trial court’s ruling that there was no genuine issue of any material fact either “that appellee had not failed to collect the assets of the estate” or “that appellee had not failed to distribute the assets of the estate to the proper person.”

The trial court found that all the estate property had been duly transferred to the named beneficiary under the will and accepted by her, and that the beneficiary, Fannie Rhea Monds, as a named trustee of the subject trust, accepted the 74.7 percent interest in the undivided one-half interest in the G & M Furniture Company. Based on the posture of the record, we agree with the findings of the trial judge. These two enumerations are without merit.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

Norman S. Fletcher, Ronald R. Womack, for appellee.


author: Beasley, Judge.

text:
    76644.
    CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA v. DIXON.
    (373 SE2d 849)
   Beasley, Judge.

Defendant insurer appeals a judgment on an adverse jury verdict. Error is asserted on: failing to grant a mistrial upon the introduction of an out-of-court compromise offer; failing to direct a verdict because plaintiff did not take the proper steps to protect his property from further damage as required by the policy and the law; failing to prove by a preponderance of evidence the actual damages suffered; submitting to the jury the question of bad faith; failing to direct a verdict for defendant insurer because the loss resulted from defective manufacture and did not fall within the terms of the policy.

1. Since the last ground could control the whole case, we consider it first. Plaintiff sought to recover under his casualty insurance policy with defendant for exterior and interior damage to his mobile home allegedly resulting from a severe wind and rain storm. Defendant contends that the evidence established that defective manufacture of the home was the sole cause of its damage.

The policy provided insurance for “direct, sudden and accidental loss” to the covered property. It expressly excluded “[defective manufacture or materials . . . [r]ain, snow or sleet leaking into the mobile home . . . whether wind driven or not, unless the leaking is caused by a covered peril.”

Plaintiff’s evidence was that during a storm on May 7, 1986, a high wind blew half of the roof up and peeled it back over the other part. Defendant sent an adjuster the next day. The following day plaintiff, who was unable to perform the work, got his brother to reposition the damaged portion of the roof and nail it down. There was no significant damage to the interior at this time. On June 22, defendant’s expert examined the roof and pronounced that the damage did not occur because of excessive wind or windstorm. Defendant denied the claim and plaintiff questioned the finding and demanded payment.

On August 1, another storm again dislodged the roof. This time because the rain continued, plaintiff was unable to repair the roof for almost a week and there was damage to the interior. After the adjuster’s visit, plaintiff was notified that the policy was canceled. Following the first incident, defendant had employed a contractor to estimate the damage to the mobile home exclusive of damage to the roof itself and had arrived at a figure of over $7,000. Plaintiff now engaged the same contractor who estimated that it would cost $3,600 to repair the roof and interior damaged by water. In May 1987 defendant’s expert on windstorm damage again gave his opinion that the entire loss was the result of a manufacturing defect and that none of it could have resulted from wind.

Back in 1985, plaintiff had filed a claim for water damage which had been abandoned because defendant demonstrated that it resulted solely from a leak and not a sudden and accidental loss. The home had a history of leaking, but plaintiff disavowed that he was seeking recovery for any damages prior to those occasioned by the 1986 incidents for which he filed suit. Besides $3,600 for actual damages under the policy, plaintiff sought attorney fees and bad faith penalties under OCGA § 33-4-6. The verdict was $3,600 plus $2,400 for penalties and attorney fees.

Both as to a motion for directed verdict and motion for new trial based on the general grounds the proper standard on appellate review is the “any evidence” test. Southern R. v. Lawson, 256 Ga. 798 (353 SE2d 491) (1987); Burnet v. Bazemore, 122 Ga. App. 73 (176 SE2d 184) (1970). The direction of a verdict is proper only where there is no conflict in the evidence as to any material fact and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. Curl v. First Fed. &c. Assn., 243 Ga. 842 (257 SE2d 264) (1979). The court construes the evidence most favorably towards the party opposing the motion for directed verdict or new trial. Skelton v. Skelton, 251 Ga. 631 (308 SE2d 838) (1983); Branch v. Anderson, 47 Ga. App. 858 (171 SE 771) (1933).

Because of the past history of water leakage and defendant’s expert testimony, the evidence was in sharp conflict as to the cause of the damage. Nevertheless, plaintiff produced some evidence that the cause was a sudden and violent storm. Thus, the evidence did not demand a finding as a matter of law that the sole cause was a defect in the mobile home itself. Both motions, then, were properly denied.

2. Defendant’s enumeration of error three states that plaintiff failed to prove actual damages suffered as a result of windstorm by a preponderance of evidence. This court lacks the discretion of the trial court to grant a new trial based upon that ground. Jones v. Fieldcrest Mills, 162 Ga. App. 848, 849 (2) (292 SE2d 523) (1982), and cases cited; Bunn v. Hargraves, 3 Ga. App. 518 (4) (60 SE 223) (1908). Nor may we consider any additional issue not raised in the enumerations of error but first asserted in the brief and argument of counsel. Frink v. State, 111 Ga. App. 604, 608 (5) (340 SE2d 631) (1986); MacDonald v. MacDonald, 156 Ga. App. 565, 566 (la) (275 SE2d 142) (1980) [originally a physical precedent only but cited with approval in numerous cases]. No issue is raised for our determination.

3. The second enumeration of error complains that a verdict was demanded in defendant’s favor because plaintiff failed to take the proper steps, required by OCGA § 13-6-5 and the terms of the policy, to protect his property from additional damage. Since defendant asserted from the beginning that it had no liability under the terms of the policy, it is hard pressed to complain that plaintiff failed to comply with the requirement to protect the property from further harm. Nevertheless, the question is whether the evidence as a whole gives a basis for reversal because plaintiff failed to lessen his damages.

“It is undoubtedly true that where by a breach of contract one is injured, he is bound to lessen the damages so far as is practicable, by the use of ordinary care and diligence .... This rule is applicable only where the damage can be lessened by reasonable efforts and expense.” Reid v. Whisenant, 161 Ga. 503, 509 (2) (131 SE 904) (1925). This is a question for the jury. Nicholas v. Tanner, 117 Ga. 223, 226 (43 SE 489) (1902). That case further explained: “ ‘It is frequently said that it is the duty of the plaintiff to reduce the damages as far as possible. It is more correct to say that by consequences which the plaintiff, acting as prudent men ordinarily do, can avoid, he is not legally damaged.’ ” (Emphasis in original.) Id. at 228.

“ ‘The burden is upon the party asserting that the opposite party could have lessened his damages, and such proof must include sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated.’ ” Nat. Health Svcs. v. Townsend, 130 Ga. App. 700, 703 (3) (204 SE2d 299) (1974). Defendant did not show as a matter of law, so as to preclude recovery altogether or of a particular amount, that plaintiff failed to mitigate his damages or to what extent he failed. Considine Co. v. Turner Communications Corp., 155 Ga. App. 911, 913 (3) (273 SE2d 652) (1980).

4. The first enumeration asserts error in the failure to grant a mistrial because of the plaintiff’s and his counsel’s statements, in the jury’s presence, as to an out-of-court compromise offer in violation of OCGA § 24-3-37.

“The rule against allowing evidence of compromises is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions therefrom in spite of anything said by the parties at the time of discussing the compromise, and in spite of anything which may be said by the judge in instructing them as to the weight to be given such evidence.” Ga. R. & Elec. Co. v. Wallace & Co., 122 Ga. 547, 551 (50 SE 478) (1905): Newton Bros. v. Shank, 240 Ga. 471, 472 (241 SE2d 231) (1978). The code section was created “to encourage settlements by letting a party which makes an admission or proposition with a view toward compromise rest assured that its good-faith settlement attempt will not later be used against it in court.” Benn v. McBride, 140 Ga. App. 698, 701 (6) (231 SE2d 438) (1976).

If indeed there was the admission of evidence regarding an offer to compromise, rather than an offer to settle (see and compare Pacific Nat. Fire Ins. Co. v. Beavers, 87 Ga. App. 294 (73 SE2d 765) (1952), Campbell v. Mutual Svc. Corp., 152 Ga. App. 493 (2) (263 SE2d 202) (1979), and Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497 (1) (300 SE2d 328) (1983)), then error might have resulted.

In the opening statement to the jury, plaintiff’s counsel referred to defendant’s adjuster who arrived at the scene shortly after the incident and stated: “He looked at it and told [plaintiff] he would pay him $500.” At this point defense counsel interposed an objection and moved for a mistrial. After argument, the trial court sustained the objection, reproved plaintiff’s counsel by ruling that it was improper to bring in an offer of compromise and overruled the motion for mistrial.

Later during the trial, plaintiff testified that when the adjuster came to the scene, “we inspected it together. He offered $500.” Defense counsel objected and the trial court informed plaintiff he should not have responded “in that regard,” admonished him not to mention that again in his testimony and instructed the jury to disregard the evidence, not to consider it or give it “any weight or credibility whatsoever” and “to disabuse your mind completely from it.” No motion for mistrial was made.

In view of the prompt corrective action by emphatic rejection and rebuke and considering the context and the absence of a motion, as well as the nature of what was said the law did not require a grant of mistrial, which is ordinarily within the discretion of the trial court. Royal Crown Bottling Co. v. Bell, 100 Ga. App. 438, 443 (6) (111 SE2d 734) (1959).

5. Defendant correctly contends that the issue of bad faith was improperly submitted to the jury.

To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. Interstate Life &c. Ins. Co. v. Williamson, 220 Ga. 323, 324 (2) (138 SE2d 668) (1964); Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 747 (125 SE2d 709) (1962). “A defence going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action.” Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 765 (4) (12 SE 18) (1890); Interstate Life &c. Ins. Co. v. Williamson, 110 Ga. App. 557, 559 (1) (139 SE2d 429) (1964). “Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.” Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (1) (308 SE2d 382) (1983).

“The proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 265 (1) (253 SE2d 745) (1979). In this case, as a matter of law, there was a reasonable issue of fact concerning whether the damages resulted from an insured event, despite the jury’s rejection of the defense theory. Colonial Life &c. Ins. Co. v. Donaldson, 172 Ga. App. 211, 212 (1) (322 SE2d 510) (1984). The amount granted for penalties and attorney fees is not sustainable.

Decided October 4, 1988.

J. Franklin Edenfield, for appellant.

Joe W. Rowland, for appellee.

The judgment below is affirmed on the condition that upon receipt of this court’s remittitur in the trial court, the amount for penalties and attorney fees is written off; otherwise the judgment is reversed.

Judgment affirmed on condition.

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