text:
    A98A1320.
    GAMBLE v. THE STATE.
    (510 SE2d 69)
   Ruffin, Judge.

A jury found Edward Gamble guilty of aggravated assault. Gamble appeals, asserting numerous grounds, and we affirm.

1. Gamble contends that there was insufficient evidence to support his conviction for aggravated assault because there was no evidence showing that he used his hands as deadly weapons. This contention is without merit.

The offense of aggravated assault consists of two essential elements: (1) an assault and (2) aggravation by use of “a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). The evidence concerning this offense, viewed in a light to support the verdict, shows that on September 12, 1994, Sabrina Gragg, a nurse at Lee Arrendale Correctional Institute, received a radio call that Gamble, an inmate, was complaining of chest pain. Gragg testified that while she was completing another inmate’s chart, she looked up and saw Officer Walter Shedd with Gamble, who was handcuffed in front and “kind of jumping around,” outside her door. While Gragg was looking down at her chart, someone hit her on the face. Although Gragg did not see who hit her, Gamble was the only one in the room with her at the time. Sergeant Shedd testified that on their way back to his cell, Gamble “made ... a loud exclamation” to his fellow inmates, bragging that “I hit that bitch.” Gamble was wearing handcuffs during this entire incident.

Dr. Don Blakeslee, an ear, nose, throat, head, and neck specialist, testified that Gragg’s injuries, which included a bruised eye and a “flattened,” broken left side of the face, were consistent with being struck with fists, hands, and handcuffs. On cross-examination, Dr. Blakeslee confirmed that such a severe injury could occur with a single blow.

The indictment alleged that Gamble’s “hands, fists and handcuffs [were used] as deadly weapons.”

Although Gamble correctly notes that Smith v. Hardrick, 266 Ga. 54, 55 (2) (464 SE2d 198) (1995) supports the proposition that hands are not “per se deadly weapons,” we disagree with his assertion that the State provided no evidence that his hands were different from anyone else’s. In fact, Sergeant Shedd testified that at no time during the altercation were Gamble’s hands unrestrained from his handcuffs. Moreover, Dr. Blakeslee testified that Gragg’s severe injuries were consistent with being struck by hands, fists, and handcuffs.

Accordingly, we find that there was sufficient evidence to sustain Gamble’s conviction for aggravated assault. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Gamble also claims that his trial should have been barred by OCGA § 17-7-53.1 because two previous indictments for the same allegation were quashed before the return of the third indictment upon which he was tried.

On August 9,1995, the Habersham County Grand Jury returned an indictment charging Gamble with aggravated assault. A second indictment was filed on January 11, 1996, charging him with aggravated battery. On March 7, 1996, upon the State’s motion, the trial court entered an oi;der of nolle prosequi as to the first indictment because the case had been re-indicted. Upon Gamble’s general demurrer, the trial court quashed the second indictment on February 29, 1996, because it failed to set forth each element of the crime charged. Thereafter, the State filed a third indictment on September 4, 1996, again charging Gamble with aggravated assault. Gamble was tried on the third indictment.

OCGA § 17-7-53.1 provides that “[i]f, upon the return of two ‘true bills’ of indictments or presentments to the grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.” Gamble contends that the second indictment, which superseded the first, in effect “quashed” the first by operation of law. Additionally, he asserts that the State was erroneously allowed to enter a nolle prosequi on the first indictment in an effort to preempt its “unavoidable quashing.”

In Gourley v. State, 268 Ga. 235, 236 (1) (486 SE2d 342) (1997), the Supreme Court, in accord with “the rule of construction requiring us to interpret a statute so as to give meaning to all of its parts,” refused to extend the protections of § 17-7-53.1 to bar the defendant’s future prosecution based upon the state’s entry of two nolle prosequi because “neither the first nor the second indictment was quashed as a result of action by [defendant] or on the court’s own motion.” (Emphasis supplied.) See also Redding v. State, 205 Ga. App. 613, 614-615 (2) (423 SE2d 10) (1992) (“The bar under the code section only follows actions adverse to the State, putting it out of court. ‘Nolle prosequi,’ on the other hand, is the State’s formal action on its decision not to further prosecute that indictment. . . . It is the prerogative only of the State, which may enter it with court approval.”).

Likewise, Gamble can point to no action by himself or the trial court which would persuade us to extend the protection of OCGA § 17-7-53.1 to the present case where the State’s filing of a second indictment preceded its motion for nolle prosequi on the first indictment. The trial court’s order granting Gamble’s general demurrer to the State’s second indictment is the only action which falls within the dictates of this statute. Because the statute at issue requires the quashing of two previous indictments before its protection is triggered, the trial court correctly held that § 17-7-53.1 was not a statutory bar to Gamble’s prosecution under the third indictment. See Gourley, supra; Redding, supra.

3. Gamble asserts that the indictment for aggravated assault upon which he was tried was so fundamentally flawed that no conviction could arise from it. In particular, he contends that the indictment failed to allege an assault, which is an essential element of the crime of aggravated assault. See OCGA § 16-5-21 (a). We disagree and find that the indictment sufficiently alleged an assault.

“The Sixth Amendment to the United States Constitution states that criminal defendants shall ‘be informed of the nature and cause of the accusation against them.’ It is established in Georgia that satisfaction of this fundamental principle requires that a criminal indictment which does not recite language from the Code must allege every essential element of the crime charged. Furthermore, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count. Unless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict. Consequently, there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment. If an accused individual can admit to all of the allegations in an indictment and still be not guilty of a crime, then the indictment generally is insufficient and must be declared void.” (Citations omitted.) See Smith, 266 Ga. at 54-55 (1).

The indictment at issue charged Gamble with aggravated assault and alleged that he “unlawfully and maliciously by striking Sabrina Gragg about the head and face with fists, hands and handcuffs, said hands, fists and handcuffs being used as deadly weapons likely to cause bodily injury and causing facial injuries including bruising, and fracture of facial bones, to wit: the zygomatic arch.” “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon.” OCGA § 16-5-21 (a) (2). Gam-. ble concedes that the indictment alleges the use of a deadly weapon; however, he contends that the indictment failed to allege an assault.

In that regard, an assault is defined as (1) an attempt to commit a violent injury to the person of another or (2) the committing of an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (1), (2). Clearly, the indictment at issue does not track the exact language of the assault statute. However, our inquiry does not end there. As the Supreme Court held in Smith, supra, an indictment which does not recite the language from the Code is nevertheless proper when it alleges every essential element of the crime charged. To comply with the Code section for an assault, an indictment must allege that a defendant intended to inflict a violent injury or that he placed the victim in reasonable apprehension of being injured violently. Smith, supra at 56 (3). It would be difficult to conclude that Gragg was placed in reasonable apprehension of being injured violently when she did not see Gamble strike her. However, the indictment in this case alleged that Gamble “maliciously” struck Gragg, thus properly alleging the necessary element of intent. See McClain v. State, 232 Ga. App. 282, 283 (1) (502 SE2d 266) (1998) (“maliciously” means “intentionally and without justification or serious provocation”).

Accordingly, we find that the indictment sufficiently alleged an assault, a key element of the offense of aggravated assault.

4. Gamble contends that the trial court violated his right to the assistance of counsel by forcing him to proceed to trial without an attorney. This enumeration is also without merit.

“In determining whether or not an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937)[,] . . . [which provides that] ‘[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” (Citations and punctuation omitted.) Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). Moreover, “the trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel.” Id. “In order to establish a valid waiver, a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.” (Citations and punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991). Finally, “when the defendant pleads not guilty and proceeds to trial without benefit of counsel, the State must show the decision to proceed pro se was made knowingly and intelligently.” Id. at 358 (1).

Applying these standards to the present case, we note the following relevant facts. During a March 1997 hearing, the trial judge asked Gamble if he had retained an attorney as he said he would at his arraignment two weeks earlier. Gamble stated that his mother was going to hire an attorney for him, but that she “still needed some more time.” When Gamble went on to state that neither he nor his family knew “who to get in contact with” to get the information a lawyer would need, the trial judge explained that his attorney would “get in touch with the District Attorney’s office.” When the judge asked him whether he was ready for trial or whether he would need a public defender, Gamble responded that he needed a public defender to make a motion for a continuance.

The trial judge conducted another hearing in April 1997, at which time he asked the public defender appointed, to represent Gamble whether he had spoken with him. That attorney informed the court that he had spoken to Gamble twice and that each time Gamble had declined to use the public defender and had insisted his family would hire an attorney. Despite his unwillingness to use a public defender, the public defender did help Gamble (1) to file a general demurrer to his second indictment, (2) to file a motion for discovery, and (3) to file a motion for funds for expert assistance.

At the start of his trial, approximately eight months after the trial judge first inquired as to whether Gamble wished to have appointed counsel, Gamble appeared without counsel and told the trial judge he still “wishfed] to go to trial this morning.” The trial judge asked Gamble whether he understood the charges against him. After hearing the charge and indictment, Gamble said he understood them. Gamble also acknowledged that the judge had talked to him “many times about the fact that [he was] entitled to an attorney,” but stated that he did not want a public defender. Gamble further acknowledged that he understood the danger involved in representing himself because he was not familiar with the law, that an attorney would know when to object and when to say things and when not to say things, and that the possible maximum sentence for aggravated assault could be as long as 20 years, to be served consecutive to the sentence he was already serving. Gamble also confirmed to the trial judge that he understood that the lawyer he thought his family had hired for him was not representing him.

Gamble, who is serving time for a previous conviction, had approximately eight months to secure private counsel prior to trial, and was in fact provided a public defender at the pre-trial stage, whose assistance he later refused on two occasions. See Stocks v. State, 224 Ga. App. 433, 434 (2) (481 SE2d 230) (1997). Gamble’s never materializing indications that counsel would be retained, combined with his refusal on two occasions to accept a court-appointed attorney, is sufficient to constitute waiver. See, e.g., Mercier v. State, 203 Ga. App. 494 (2) (417 SE2d 430) (1992) (trial court authorized to find that defendant’s rejection of the assistance of the public defender, coupled with his insistence upon the appointment of counsel of his own choosing, was functional equivalent of a knowing and voluntary waiver of counsel); Phipps v. State, 200 Ga. App. 18, 19 (406 SE2d 493) (1991) (“defendant in a criminal action has ‘the right to the effective assistance of counsel, not the right to the assistance of counsel satisfactory to the defendant.’ ”).

We also reject Gamble’s argument that the trial court did not adequately investigate the validity of his waiver pursuant to the dictates of such cases as Kirkland, supra. “There is no magic language that must be used by a trial judge in determining that a defendant has made a valid waiver of his right to counsel. Rather, such determination must depend upon the particular facts and circumstances of each case” Reviere v. State, 231 Ga. App. 329, 330 (1) (498 SE2d 332) (1998). In that regard, the court, after having informed Gamble of his right to counsel twice before, advised him at the trial’s start that it was to his advantage to have counsel, informed him of the possible sentence, and advised him of the charge against him. See Wright v. State, 222 Ga. App. 320, 321-322 (2) (474 SE2d 121) (1996) (defendant’s choice to represent himself made after he was made aware of right to counsel and of dangers of proceeding pro se). Compare Kirkland, supra at 358 (judgment reversed where record did not reflect whether defendant was aware of facts essential to the understanding of his situation).

Finally, Gamble points to the absence of standby counsel in support of his contention that he was denied his right to assistance of counsel. However, “[ajlthough trial courts often require appointed counsel to remain in the courtroom as standby counsel after a defendant has elected to proceed pro se, there is no requirement that they do so. A criminal defendant has the right to be represented by counsel, and has the right to represent himself, but does not have the right to represent himself and also be represented by an attorney.” Reviere, supra at 332.

Under these circumstances, we cannot say that the trial court violated Gamble’s right to assistance of counsel at trial. Instead, we find that Gamble knowingly and voluntarily waived his right to counsel. See Clarke, supra. Furthermore, even had the trial court erred in allowing Gamble to represent himself, in light of “the strength and simplicity of the State’s evidence,” as outlined above in Division 1, we find it unlikely that Gamble’s conviction was attributable to his lack of counsel at trial. Hose v. State, 161 Ga. App. 401, 402 (288 SE2d 675) (1982); see also Reviere, supra at 331.

5. In two enumerations, Gamble asserts that the trial court erred in failing to conduct a Jackson v. Denno hearing before admitting evidence of an incriminating statement and in admitting into evidence an involuntary statement he made without the benefit of Miranda warnings. However, Gamble did not ask for a hearing, nor did he object to the State’s introduction of his incriminating statement at trial.

These issues have previously been decided adversely to Gamble. First, “[i]n the absence of a proper objection, . . . there is no requirement for ... a [Jackson-Denno] hearing. Due process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.” (Citations and punctuation omitted.) McNair v. State, 190 Ga. App. 412, 413 (2) (379 SE2d 424) (1989); see also Stocks, supra at 435. Second, “[objections to evidence, including confessions, may be waived through nonobjection at trial.” Reeves v. State, 241 Ga. 44 (1) (243 SE2d 24) (1978) (citing Wainwright v. Sykes, 433 U. S. 72 (97 SC 2497, 53 LE2d 594) (1977)); see also Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997). Thus, Gamble has waived his right to our review of these issues on appeal.

Even if Gamble had properly preserved these issues for appeal, we find no error. Any written or verbal statements Gamble made to the officers regarding the victim were merely cumulative of the spontaneous statements he made to the other inmates that “I hit that bitch” and “I told you I was going to do it.” See Hardin v. State, 269 Ga. 1, 3-4 (2) (b) (494 SE2d 647) (1998).

6. Gamble’s contention that the trial court erroneously failed to charge the jury on the law of circumstantial evidence is also without merit. Gamble did not ask for such a charge, and he “correctly points out that it is error for the trial court to fail to give a charge on circumstantial evidence, even absent a request, where the case against the defendant is based entirely on circumstantial evidence.” (Citation omitted.) Edwards v. State, 224 Ga. App. 332, 333 (2) (480 SE2d 246) (1997). However, this is not the case. Rather, the State presented direct evidence of the crime alleged.

The State presented evidence that Gamble admitted that he hit the victim to get a transfer and that he bragged to fellow inmates that he hit her. Accordingly, “[s]ince direct evidence of [Gamble’s] guilt was presented, the trial court was not obligated to give the unrequested charge on circumstantial evidence.” Edwards, supra; see also Stubbs v. State, 265 Ga. 883, 884 (2) (463 SE2d 686) (1995).

7. Gamble challenges the trial court’s failure to charge the jury on the lesser included offense of battery. However, by not presenting the court with a written request for such charge, Gamble has waived his right to our review of this issue on appeal. Dukes v. State, 224 Ga. App. 305, 310 (6) (480 SE2d 340) (1997) (“ ‘failure to charge on a lesser included offense is never error absent a written request to do so.’ ”).

Decided December 1, 1998

Reconsideration denied December 16, 1998

Jacqueline J. Herring, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

8. Lastly, Gamble maintains that the cumulative effect of the alleged errors discussed in Divisions 1-7 prevented him from receiving a fair trial. Because we find no errors, this contention is without merit.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1540.
    PATTERMAN et al. v. TRAVELERS, INC. et al.
    (510 SE2d 307)
   Ruffin, Judge.

Scott and Donna Patterman filed a class action lawsuit against Travelers, Inc., Primerica Financial Services, Inc. (PFS), Primerica Life Insurance Company (PLI) and National Benefit Life Insurance Company, asserting various claims of fraud, negligence, racketeering, and unfair business practices. The Pattermans filed the suit in Richmond County, relying on OCGA § 33-4-1 (2), which provides that suits involving a claim or demand on any insurer may be brought in any county where the insurer has an agent. The defendants subsequently moved to transfer the action to Gwinnett County, where two of them maintain registered offices, arguing that OCGA § 33-4-1 is inapplicable to this tort action. The Pattermans contend venue is proper under OCGA § 33-4-1 because the action arose out of the defendants’ “role as an insurer.” The trial court granted defendants’ motion and transferred the case to Gwinnett County. We granted the Pattermans’ application for interlocutory review and reverse the lower court’s order.

The complaint alleges that defendants engaged in a scheme to use false and misleading sales practices to induce individuals who already owned cash value insurance policies issued by other insurers to surrender such policies and replace them with term policies issued by one of the defendants and to invest the savings from reduced premiums in mutual funds issued by defendants. Plaintiffs allege that defendants’ actions constituted an improper process of life insurance policy replacement known as “churning” or “twisting.” With respect to the named plaintiffs, the complaint alleges that, in 1993, the Pattermans switched their life insurance from a whole life policy issued by another insurer to a less expensive term life policy sold by PLI. The Pattermans invested the money they saved from reduced premiums in mutual funds issued by PFS. They allege that they took these actions based upon false or misleading representations by PLI’s sales agent. The Pattermans claim that they later learned they were losing money because the mutual funds were not performing as promised. Thereafter, the Pattermans canceled their insurance policy and closed their mutual fund accounts.

The Pattermans contend that the agent’s actions were part of a pyramid or multi-level marketing scheme in which defendants recruited agents to seek out holders of cash value life insurance policies and induce them, through deceptive sales techniques, to purchase defendants’ policies and mutual funds. Based on these allegedly false and misleading sales practices, plaintiffs filed this class action lawsuit, asserting several counts of fraud, fraudulent inducement, negligence, racketeering, and unfair business practices. Defendants moved to transfer this case to Gwinnett County, arguing that OCGA § 33-4-1 is inapplicable. The trial court granted the transfer motion on February 6, 1998.

OCGA § 33-4-1 provides that “whenever any person shall have a claim or demand on any insurer, such person may bring an action in any of the following places: (1) In the county where the principal office of the company is located; (2) In any county where the company shall have an agent or place of doing business; (3) In any county where such agent or place of doing business was located at the time the cause of action accrued or the contract was made out of which such cause of action arose; or (4) In any county where the property covered by an insurance contract upon which an action is brought is located or where the person entitled to the proceeds of an insurance contract upon which action is brought maintains his legal residence.” The Pattermans contend that venue is proper under subsection (2), arguing that the statute applies to all actions arising from an insurance company’s business as an insurer, including tortious conduct by its agents during the solicitation of new business. Defendants argue that OCGA § 33-4-1 applies only to claims under the insurance contract itself. In determining whether OCGA § 33-4-1 applies to this case, we must ascertain the legislative intent and purpose in enacting the law and then give it that construction which will effectuate the legislative intent and purpose. City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 761 (1) (213 SE2d 596) (1975). See OCGA § 1-3-1. “In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.” OCGA § 1-3-1 (b).

We note that nothing in the language of subsection (2) indicates that it is intended to apply only to claims under insurance contracts. The statute indicates that it applies to “any claim or demand on any insurer.” OCGA § 33-4-1. Black’s Law Dictionary defines “claim” as “cause of action” or “demand for money or property,” and defines “demand” as “the assertion of a legal right.” Black’s Law Dictionary, pp. 224, 386 (5th ed. 1979). Based on the “ordinary signification” of these words, the statute is not on its face limited to claims under insurance contracts.

To the extent that there is any limitation to the application of the statute, such limitation is not based on the words “claim or demand,” but on the word “insurer.” See Liberty Mut. Ins. Co. v. Lott, 246 Ga. 423 (271 SE2d 833) (1980). In Lott, the Supreme Court construed subsection (2) of the statute, which is the provision at issue here. In that case, the administrator of Lott’s estate sued Liberty Mutual to enforce a settlement agreement involving a wrongful death claim against Liberty Mutual’s insured. In seeking dismissal for improper venue, Liberty Mutual argued that subsection (2) did not apply because the action did not involve a claim between Liberty Mutual and its own insured. Liberty Mutual relied on Mavity v. First of Ga. Ins. Co., 115 Ga. App. 763 (156 SE2d 191) (1967), in which we held that subsection (3) did not apply to a tort case for libel against an employee of the insurance company. However, the Supreme Court held that Mavity was distinguishable because it “did not arise out of the insurance company’s business as an insurer, but its role as an employer. Therefore, the insurance venue provisions were not applicable. The present suit, however, arises out of Liberty Mutual’s role as an insurer. Therefore, we hold that the venue provisions of the Insurance Code are applicable and affirm the Court of Appeals.” (Citations omitted.) Lott, supra at 423.

Under Lott, therefore, venue is proper under OCGA § 33-4-1 (2) if a claim arises out of the defendant’s “role as an insurer” or “business as an insurer.” Defendants contend that an insurance company acts as an insurer only where there is an existing contractual relationship between the parties. However, the Insurance Code makes it clear that many actions prior to the execution of an insurance contract also constitute the business of insurance. OCGA § 33-1-2 (6) provides that the term “ ‘[t]ransact,’ with respect to insurance, includes any of the following: (A) Solicitation and inducement-, (B) Preliminary negotiations', (C) Effectuation of a contract of insurance; or (D) Transaction of matters subsequent to effectuation of the contract and arising out of it.” (Emphasis supplied.) OCGA § 33-6-4 (b) lists numerous examples of “unfair and deceptive acts or practices in the business of insurance” that do not relate to existing policyholders, including “making any misrepresentation to any policyholder insured in any company for the purpose of inducing or tending to induce the policyholder to lapse, forfeit, or surrender his insurance,” OCGA § 33-6-4 (b) (2), which is one of the allegations made in this case. (Emphasis supplied.)

The Insurance Code thus makes it clear that matters prior to the execution of an insurance contract, such as solicitation of business and preliminary negotiations, can constitute the business of insurance. Therefore, claims arising out of such matters are claims arising out of the defendant’s business as an insurer. This result is consistent with federal law holding that the sale of insurance constitutes the “business of insurance.” See Securities & Exchange Comm. v. Nat. Securities, 393 U. S. 453, 459-460 (89 SC 564, 21 LE2d 668) (1969) (“[0]nly when [insurance companies] are engaged in the ‘business of insurance’ does the [McCarron-Ferguson Act] apply. . . . The selling and advertising of policies . . . are also within the scope of the statute.”).

In this case, plaintiffs’ allegations involve claims that the defendants or their agents committed fraud and unfair or deceptive acts by inducing policyholders to surrender their existing policies and purchase policies issued by defendants. These claims constitute claims arising out of the business of insurance. Accordingly, the trial court erred in holding that OCGA § 33-4-1 (2) is inapplicable.

Neither Mavity nor Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 313 (3) (127 SE2d 454) (1962), relied on by the defendants, requires a different result. In Gibbs, the Supreme Court discussed the constitutionality of subsection (4), stating that “[t]he object of the legislation is to fix the venue of actions against insurers on their contracts of insurance.” However, Gibbs dealt only with subsection (4) of the statute, which on its face applies only to claims under insurance contracts. Thus, Gibbs does not stand for the broad proposition that the entire statute applies only to claims under insurance contracts. Moreover, Gibbs did not involve an analysis of whether the statute applied only to claims under insurance contracts, but dealt with the constitutionality of subsection (4). Id. at 312-313 (3).

In Mavity, we stated that “[t]he provisions of [subsection (3) of OCGA § 33-4-1] ... do not apply to tort actions.” Mavity, supra at 763 (2). However, Mavity dealt only with subsection (3) of the statute, and our decision was based upon language in that particular subsection dealing with claims under insurance contracts. Mavity noted that subsection (3) authorizes venue “in any county where the company’s ‘agent or place of doing business was located at the time the cause of action accrued or the contract was made out of which such cause of action arose.’ ” (Emphasis in original.) Id. The emphasis on the word “such” in the opinion makes it clear that the holding in Mavity was based on the particular language of subsection (3). In effect, Mavity held that the use of the phrase “such cause of action” after the reference to a “contract” reflected a legislative intent that subsection (3) apply only to causes of action under such a contract. Mavity did not purport to discuss the effect of any of the other subsections.

Decided December 3, 1998

Reconsideration denied December 16, 1998

Bell & James, John C. Bell, Jr., Pamela S. James, James L. Bentley III, Hull, Towill, Norman & Barrett, David E. Hudson, for appellants.

Dye, Tucker, Everitt, Wheale & Long, Thomas W. Tucker, Rogers & Hardin, Peter W. Schneider, John J. Almond, for appellees.

Contrary to defendants’ contentions, therefore, Gibbs and Mavity do not stand for the proposition that OCGA § 33-4-1, as a whole, applies only to claims brought under insurance contracts. Although subsections (3) and (4) on their face relate only to contract claims, subsection (2) contains no such limitation, providing that any claim or demand on an insurer may be brought “[i]n any county where the company shall have an agent or place of doing business.” OCGA § 33-4-1 (2).

Because this case involves claims arising out of the business of insurance, the venue provisions of OCGA § 33-4-1 (2) are applicable. See Lott, supra. Although the defendants contend that the venue statute is unavailable to plaintiffs as out-of-state parties, nothing in the statute indicates that it is intended to be so limited. Therefore, the trial court’s order is reversed, and this case is remanded for further action consistent with this opinion.

Judgment reversed.

Pope, P. J., and Beasley, J., concur.

       Defendants note that PLI and National Benefit Life Insurance Company are the only defendants who are insurance companies. However, the transfer motion did not contend that venue might be proper in Richmond County with respect to these defendants but improper with respect to the non-insurer defendants, PFS and Travelers. Accordingly, we do not consider that issue here. We also do not address the issue of whether Georgia courts have personal jurisdiction over any of the defendants, as that issue was not raised or ruled on below.


author: fcp]P0PE, Presiding Judge.

text:
    A98A2024.
    MANIS v. THE STATE.
    (510 SE2d 584)
   fcp]P0PE, Presiding Judge.

Johnny Manis appeals from his burglary conviction. He challenges the sufficiency of the evidence and the court’s finding that he voluntarily gave a written statement to the police. The challenges are without merit, and we affirm the conviction.

1. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Martin v. State, 228 Ga. App. 59, 60 (1) (491 SE2d 142) (1997).

Viewed in the light most favorable to support the verdict, the evidence shows that on August 12,1996, Reba Carter was gone from her home for about 90 minutes while she took her daughter to high school cheerleading practice. When Carter returned home, she found that her front door had been broken and various items, including jewelry, had been stolen from the home.

Three days later, another of Carter’s daughters saw Manis and his girlfriend, Karen Maddox, at a nearby hospital. Maddox was wearing a ring and carrying a bag stolen from Carter’s home and Manis was also wearing a stolen ring. Carter’s daughter called the police. A detective arrived at the hospital, asked Manis about the stolen rings and bag, and read Manis his Miranda rights. Manis said he understood his rights and agreed to help the detective recover property stolen from Carter’s home.

Manis took the detective to a pawn shop where Manis had pawned several pieces of stolen jewelry. Manis then led the detective to Manis’ parents’ house, his brother-in-law’s house and Maddox’s grandparents’ house. In all three houses the detective recovered property stolen from Carter. Thereafter, the detective took Manis to the detective’s office and again read him his rights. Manis signed a waiver form indicating he understood his rights and was willing to discuss the case. Manis then wrote a statement, admitting that he had broken into Carter’s house and stolen various items.

In his defense, Manis testified that he wrote the confession because he was coerced by the detective. He also presented evidence showing that he had not burglarized the home, but had only bought the stolen items from a friend.

“Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. . . . In the case sub judice, the verdict reflects the jury’s dissatisfaction with defendant’s explanation.” (Citations and punctuation omitted.) Hanson v. State, 229 Ga. App. 205, 206 (1) (493 SE2d 605) (1997).

Decided December 16, 1998.

Michael A. Corbin, for appellant.

Viewed in favor of the verdict, there is sufficient evidence from which a rational trier of fact could have found Manis guilty beyond a reasonable doubt of burglary. Accordingly, the jury’s verdict must be upheld. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Toney v. State, 225 Ga. App. 228 (483 SE2d 627) (1997).

2. Contrary to Manis’ argument, the court did not err in finding that his written statement was voluntary. At the Jackson-Denno hearing, the detective testified that he read Manis his Miranda rights at the hospital and at the detective’s office. Manis appeared to understand his rights, did not appear to be under the influence of alcohol or drugs, signed the written waiver of his rights and then wrote his statement. The detective further testified that he did not threaten Manis or promise him anything. Manis did not deny that he signed the waiver of rights or wrote his statement, but claimed that the detective threatened to arrest Maddox and to put Manis’ children in the county’s custody unless Manis gave the statement.

Based on this conflicting evidence, we must affirm the court’s finding that Manis’ statement was voluntary. “On appellate review, factual and credibility determinations by the trial court must be accepted unless such determinations are clearly erroneous. We find as a matter of fact and law that the trial court’s determination of voluntariness and admissibility, although based upon conflicting evidence, was supported by a preponderance of the evidence.” (Citations and punctuation omitted.) Denney v. State, 170 Ga. App. 692, 693 (1) (318 SE2d 85) (1984). Accordingly, the court did not err in admitting the statement into evidence. See Larry v. State, 266 Ga. 284, 285-286 (2) (466 SE2d 850) (1996); Moore v. State, 207 Ga. App. 802 (430 SE2d 115) (1993).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Kermit N. McManus, District Attorney, Dixon A. Lackey III, Assistant District Attorney, for appellee.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).


author: Andrews, Chief Judge.

text:
    A98A2200.
    CAWTHON v. THE STATE.
    (510 SE2d 586)
   Andrews, Chief Judge.

William Cawthon appeals from the verdict entered after a jury found him guilty of driving under the influence. Because we find no reversible error, we affirm the judgment of the trial court.

1. In his first enumeration of error, Cawthon claims the trial court erred in refusing to quash the “per se” count of DUI when the evidence at trial showed the Intoxilyzer 5000 used had a margin of error of 0.01 grams. This issue has already been decided adversely to Cawthon. A breathalyzer machine’s margin of error relates to the weight given to the test results rather than to their admissibility. Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991); Scheipers v. State, 234 Ga. App. 112 (505 SE2d 835) (1998) (physical precedent only).

2. Next, Cawthon argues the trial court should have suppressed the results of the breath test because the Implied Consent Warning read to Cawthon was misleading in that it only informed him of penalties he might face in Georgia and not those he might face in his home state of Alabama. We have already decided this issue adversely to Cawthon in Wofford v. State, 234 Ga. App. 316 (506 SE2d 656) (1998).

3. Finally, Cawthon claims the trial court erred in refusing to instruct the jury under OCGA § 24-4-6 that to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. There was no error.

“Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) and Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) established the bright-line rule that it is error to fail to give a request to charge on the law of circumstantial evidence as set forth in OCGA § 24-4-6 when the State’s case includes both direct and circumstantial evidence.” Yarn v. State, 265 Ga. 787 (462 SE2d 359) (1995). Here, Cawthon was charged with driving under the influence with a blood alcohol percentage of .10. The evidence introduced by the State in support of this charge was the results from a breath test by the Intoxilyzer 5000.

These results are characterized as direct evidence. Waits v. State, 232 Ga. App. 357, 359 (501 SE2d 870) (1998). Waits, supra, and Tomko v. State, 233 Ga. App. 20 (503 SE2d 300) (1998), relied on by Cawthon, aré not on point. In both Waits and Tomko, the defendants were charged with driving under the influence to the extent that they were less safe drivers, in violation of OCGA § 40-6-391 (a) (1). In those cases, the State introduced both circumstantial and direct evidence. Waits, supra at 359; Tomko, supra at 22.

Decided December 16, 1998.

William C. Head, for appellant.

Joseph J. Drolet, Solicitor, Eric K. Dunaway, Assistant Solicitor, for appellee.

Cawthon also argues that he elicited testimony on the margin of error of the Intoxilyzer 5000 and this was circumstantial evidence, thus requiring the requested charge. Cawthon cites no authority for this proposition and we find none. Trial courts are required to give the circumstantial evidence charge tracking the language of OCGA § 24-4-6 when the State’s case includes both direct and circumstantial evidence and the defendant requests the charge. Stubbs v. State, 265 Ga. 883 (463 SE2d 686) (1995). Here, as stated above, the State’s case did not include circumstantial evidence. Therefore, the trial court did not err in refusing to give the requested charge.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.


text:
    A98A2442.
    PRICE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (510 SE2d 582)
   Andrews, Chief Judge.

As a result of an automobile accident, Allan Howard Price sued Sharon Lea Engleman for negligence and negligent infliction of emotional distress. Engleman’s uninsured motorist carrier, State Farm, was also served with a copy of the complaint. After granting State Farm’s motion to compel the production of records from plaintiff’s treating psychiatrist, the trial court certified its order for immediate review by this Court. Plaintiff’s application for interlocutory appeal was granted by this Court and a timely notice of appeal was filed. For reasons which follow, we affirm.

The record shows that State Farm served the plaintiff and his treating psychiatrist, James Howard, M.D., with a request for production of Dr. Howard’s treatment records and bills for the plaintiff on June 17, 1997. Neither the plaintiff nor Dr. Howard filed an objection to this request within ten days pursuant to OCGA § 9-11-34 (c) (2). On July 24, 1997, State Farm wrote to Dr. Howard, advised him that his response to the request was overdue, and requested a written response to its request. In a July 29, 1997 letter, Dr. Howard responded, “From my conversation with Mr. Price it is my understanding he had instructed you not to involve me in this process. This is simply for the best interest of the patient.”

State Farm moved to compel production of Dr. Howard’s records on October 24, 1997. The plaintiff filed a response to this motion on November 18, 1997, and asserted the records were protected from discovery by the psychiatrist-patient privilege created by OCGA § 24-9-21 (5). The trial court granted State Farm’s motion to compel in its entirety, but limited State Farm’s use of the documents obtained from Dr. Howard and prohibited State Farm from copying or disseminating the documents “except as required for legitimate purposes related to this litigation.” In this appeal, Price contends in each of his four enumerations of error that the trial court erred when it granted State Farm’s motion to compel.

1. OCGA § 9-11-34 (c) (2) creates the following procedure for objections to requests for production to nonparties who are practitioners of the healing arts or a hospital or health care facility: “The nonparty, any party, or the person whose records are sought may file an objection with the court in which the action is pending and shall serve a copy of such objection on the nonparty to whom the request is directed, who shall not furnish the requested materials until further order of the court, and on all other parties to the action. ... If no objection is filed within ten days of the request, the nonparty to whom the request is directed shall promptly comply therewith.” (Emphasis supplied.)

In McFarlin v. Taylor, 187 Ga. App. 54, 55 (369 SE2d 330) (1988), we held that a trial court abused its discretion when it failed to grant a motion to compel records from the plaintiff’s dentist when no objection was filed to the defendant’s request for production of documents to the dentist within the ten-day period proscribed by OCGA § 9-11-34 (c) (2). The belated assertion of the psychiatrist-patient privilege in this case does not demand a different result.

Although the psychiatrist-patient privilege is frequently characterized as “absolute,” it can be waived. Freeman v. State, 196 Ga. App. 343-344 (396 SE2d 69) (1990); Emory Univ. v. Houston, 185 Ga. App. 289, 295 (2) (364 SE2d 70) (1987), rev’d on other grounds, Emory Clinic v. Houston, 258 Ga. 434 (369 SE2d 913) (1988); Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995); Dynin v. Hall, 207 Ga. App. 337, 338 (1) (428 SE2d 89) (1993). See also McCord v. McCord, 140 Ga. 170, 173-175 (78 SE 833) (1913). Since it is well-established that a party’s failure to timely object to a discovery request will result in a waiver of the right to object, we find that Price’s failure to object within ten days resulted in a waiver of his right to object to State Farm’s discovery request based upon the psychiatrist-patient privilege. See Drew v. Hagy, 134 Ga. App. 852 (216 SE2d 676) (1975); Tompkins v. McMickle, 172 Ga. App. 62, 63 (321 SE2d 797) (1984); Ale-8-One &c. v. Graphicolor Sues., 166 Ga. App. 506, 507 (1) (305 SE2d 14) (1983); Smith v. Nat. Bank of Ga., 182 Ga. App. 55, 57 (2) (354 SE2d 678) (1987). See also Cohran v. Carlin, 165 Ga. App. 141, 144 (297 SE2d 54) (1983); Marx v. Kelly, Hart & Hallman, P.C., 929 F2d 8, 12 (1st Cir. 1991). As a result, the trial court did not err when it granted State Farm’s motion to compel.

Decided December 16, 1998.

Steven K. Leihel, for appellant.

Sharon W. Ware & Associates, Joanne B. Brown, Panton P. Pou, for appellee.

2. We reject Price’s contention that the trial court erred when it granted State Farm’s motion to compel because the United States Supreme Court’s decision in Jaffee v. Redmond, 518 U. S. 1, 4 (116 SC 1923, 135 LE2d 337) (1996) classifies “communications between a patient and his psychiatrist as ‘absolutely privileged.’ ” In Jaffee, the Supreme Court addressed only whether federal courts should recognize a psychotherapist privilege under Rule 501 of the Federal Rules of Evidence in cases governed by federal law. 518 U. S. at 4. This decision has no impact on the scope of this privilege in Georgia.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       We express no opinion on whether the waiver of the right to object to a specific discovery request will result in a waiver of the right to object to subsequent discovery requests or during trial. See Associated Grocers Co-Op v. Trust Co. of Columbus, 158 Ga. App. 115, 116 (3) (279 SE2d 248) (1981); Bobo v. State, 256 Ga. 357, 358 (2) (349 SE2d 690) (1986).


text:
    A98A2458.
    SWITZER et al. v. GORMAN.
    (510 SE2d 581)
   Andrews, Chief Judge.

Rebecca and Charles Switzer appeal from the judgment entered after a jury found for defendant Gorman on the Switzers’ claim of medical malpractice. The Switzers argue on appeal that the trial court erred in not allowing them to strike a juror for cause and in not allowing certain questions on cross-examination of Gorman’s expert witness. Because we find no reversible error, we affirm the judgment of the trial court.

1. First, the Switzers argue the trial court erred when it did not allow them to strike for cause a prospective juror who was a patient of Dr. Gorman’s. During voir dire, one of the jurors stated that he and his wife were patients of Dr. Gorman’s and had been patients of his for nine or ten years. When asked if this would cause him to “lean to” the doctor’s side or give Dr. Gorman the benefit of the doubt, the juror responded, “Probably.” The Switzers’ counsel then asked the juror: “Do you think, sir, that because of your knowledge of Dr. Gorman and that you are his patient that you would be unable to render a true verdict in this case? That is a verdict based upon just the evidence and the law as given to you by the Court; that is that you would be biased in his favor, that you would give undue weight to his side of the case.” The juror replied, “Yes.”

The court then asked the juror: “Mr. MacDonald, let me ask you, sir, if you are selected as a juror in this case could you base your verdict in this case solely upon the sworn testimony of witnesses who testify and the law that I give you in charge and base your verdict solely on that testimony and on the law as I have said and put any personal feelings that you might have aside?” The juror answered, ‘Yes, sir.” The court then qualified the juror.

On appeal, the Switzers cite only to Baxter v. Cohen, 220 Ga. App. 893 (470 SE2d 450) (1996) in support of their position. Although the Switzers acknowledge that the Supreme Court of Georgia overruled Baxter, they argue that the Supreme Court did not state that the doctor-patient relationship should be ignored when determining whether a potential juror is suitable and did not disagree that the issue of fairness should be what determines the dismissal of a prospective juror.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495, 496 (435 SE2d 431) (1993). The fact that a doctor-patient relationship exists between a juror and a defendant does not justify removing the trial court’s discretion on whether to retain or dismiss a juror. Cohen v. Baxter, 267 Ga. 422 (479 SE2d 746) (1997). In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. Westbrook v. State, 242 Ga. 151, 154 (249 SE2d 524) (1978).

As discussed above, the juror stated that he could put aside his personal feelings and judge the case based on the testimony and the law as charged. Therefore, the Switzers have not established that the juror had a fixed opinion which demanded his disqualification. West-brook, supra at 154. The trial court did not err in refusing to dismiss the juror for cause.

2. Next, the Switzers contend the trial court erred in not allowing counsel to cross-examine Gorman’s expert witness as to what course of treatment he personally would have recommended. The Switzers cite to no authority in support of this enumeration and we find none. Indeed, case law is to the contrary. In a case directly on point, this Court held that the trial court did not err in failing to require defendants’ expert witness to answer a question as to what course of treatment he personally would have followed. Brannen v. Prince, 204 Ga. App. 866, 867 (421 SE2d 76) (1992). Questions on cross-examination as to what method of treatment the expert would have undertaken are not a proper means to impeach the general standard of care required of the treating physician. Id.

Decided December 16, 1998.

Hinton & Powell, Douglas R. Powell, Debra Haan, for appellants.

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Rolfe M. Martin, for appellee.

Here, the witness testified that Dr. Gorman complied with the relevant standard of care in his treatment of Mrs. Switzer. Any questions on cross-examination as to how he personally would have treated Mrs. Switzer were irrelevant and immaterial as not proper for impeachment. Prince, supra at 868.

Judgment affirmed.

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


author: Johnson, Presiding Judge.

text:
    A98A1311.
    MOORE et al. v. TCI CABLEVISION OF GEORGIA, INC. et al.
    (510 SE2d 96)
   Johnson, Presiding Judge.

This case arises from an automobile accident which occurred on July 21, 1993. Angela Moore and Hannah Moore, the appellants, were guest passengers in a car driven by Judy O’Neal. O’Neal was distracted by children in the back seat as she approached and stopped at a stop sign. It is undisputed that O’Neal pulled away from the stop sign and into the path of an oncoming pickup truck owned by TCI Cablevision of Georgia, Inc. (“TCI”) and driven by Robert McLeod in the course of his employment. The pickup truck had the right-of-way at the intersection. The evidence was conflicting as to whether McLeod was negligent in failing to avoid the collision. The officer investigating the accident, McLeod and the appellees’ expert testified that McLeod was not speeding at the time of the accident. The Moores’ expert testified that based on his calculations, McLeod was speeding, failed to pay attention, and did not properly react to the situation. The Moores brought this action against the estate of O’Neal, McLeod and TCI. The Moores’ claims were tried in the same action as personal injury and wrongful death claims brought by the representative and family of O’Neal, who died in the collision, against McLeod and TCI.

It is not disputed that Angela Moore was seriously injured in the collision. Her injuries included a fractured bone in her forearm, a laceration in her left knee, two fractured ribs on the left side, a tear in her left kidney, and some pelvic injuries. Her medical bills totaled approximately $36,000. Nor is it disputed that Hannah Moore was also injured. Though less serious than her mother’s, Hannah Moore’s injuries included a concussion, a swollen right eye and abrasions. There was conflicting evidence regarding the amount of Hannah Moore’s medical bills, so that the jury had before it evidence on the issue showing a range from just over $2,000 to $10,000. However, it is not disputed that both Angela and Hannah Moore incurred medical expenses for the treatment of the injuries they received in the collision.

The jury returned a verdict purporting to be in favor of Angela and Hannah Moore and against all three defendants, jointly and severally, but in the amount of zero dollars. The jury also returned a verdict in favor of defendants McLeod and TCI in the case brought by Daniel O’Neal for his own injuries and the wrongful death of his mother.

The Moores filed a motion for new trial on several grounds, which the trial court denied without specifically addressing any of the grounds raised. In their appeal, the Moores contend the trial court erred by denying their motion for a new trial, arguing primarily that the verdict was inadequate and warranted a new trial under OCGA § 51-12-12.

Because of the unique factual situation presented by this appeal, and for the reasons which are set out below, we hold that the trial court abused its discretion in failing to grant a new trial on the general grounds.

1. We first address the appellees’ motion to strike the “amended judgment” entered by the trial court on November 12, 1998, and received by this Court as a supplement to the record on November 19, 1998. It is axiomatic that upon the docketing of a case in this court, the trial court loses jurisdiction over the matter. Therefore, the “amended judgment” is null, void and of no effect whatsoever, either here or in the trial court. There is, therefore, no need to strike it from the record as it is a mere nullity. The motion to strike is moot.

We suppose that the reason for the motion to strike relates to the ongoing dispute between the parties regarding whether this case is properly before us. In a previous motion to dismiss, appellees argued that this Court did not have jurisdiction to consider this appeal on the merits because the appellants failed to follow the discretionary appeal procedures. To oversimplify the appellees’ position, they maintained that the language of the judgment entered upon the jury’s verdict purporting to award costs to the Moores rendered this a judgment in an amount more than zero but less than $10,000, bringing into play the provisions of OCGA § 5-6-35 (a) (6) requiring persons seeking to appeal such judgments to follow the discretionary appeal procedures. The Moores responded by arguing that there were, in fact, no costs, leaving them in the position of being able to directly appeal the judgment. This Court even attempted to get to the facts of the costs issue by ordering the clerk of the trial court to supplement the record to show whether there were costs actually awarded. Because the trial court clerk had received this case as a transfer from another jurisdiction, it apparently was unable to certify any answer to the question, and simply filed here a supplemental statement pointing out the obvious, that the jury verdict itself awarded zero damages and did not award costs. The record before us already showed this verdict. The supplement was of no help. We denied the motion to dismiss, and now conclude that while we correctly decided that motion, we incorrectly focused on the issue as debated between the parties and overlooked a more obvious reason why appellees’ motion was without merit: the verdict was in its legal effect a defendants’ verdict, and a purported award of costs was never authorized by law.

This Court has consistently held that a verdict in favor of the plaintiff but awarding zero damages is, in legal effect, a defendant’s verdict. See Electronic Data Systems Corp. v. Heinemann, 268 Ga. 755, 758 (6) (493 SE2d 132) (1997); Henry v. Watkins, 219 Ga. App. 80, 81 (464 SE2d 215) (1995); Gielow v. Strickland, 185 Ga. App. 85, 87 (4) (363 SE2d 278) (1987). Thus, when the trial court added the words “and costs,” it was mere surplusage. The judgment was directly appealable and the case is properly before us.

2. The Moores argue that it was error for the trial court to deny their motion for a new trial. As indicated above, we agree, reverse and remand the case with direction.

In the trial court, the Moores’ motion for new trial listed seven grounds, including the three usually referred to as the “general grounds.” Those grounds are that the verdict is contrary to law, the verdict is contrary to the evidence, and the verdict is strongly against the weight of the evidence. Inter alia, the Moores also based their motion for a new trial on the argument that the damage award was so inadequate as to “justify an inference of gross mistake . . .,” and alleged errors in the trial court’s instructions to the jury. On appeal, they support their contention that it was error to deny the motion for a new trial with an argument which focuses on the alleged inadequacy of the damage award. As in the debate between the parties over the meaning of the verdict within the context of the motion to dismiss this appeal, this simply misses the real point.

It is undisputed that Angela and Hannah Moore were guest passengers in O’Neal’s car. It is further undisputed that they both suffered injuries not attributable to anything other than the car accident. Based on the evidence presented at trial, this is not a case in which the Moores’ damages could be diminished by the jury because the Moores’ complaints were at least partially related to pre-existing conditions. There was no evidence of any pre-existing medical conditions. See Byrom v. Felker, 137 Ga. App. 400, 402 (3) (224 SE2d 72) (1976). Appellees suggest in their brief that the jury had before it evidence that both Angela and Hannah Moore were “unrestrained,” apparently meaning they were not wearing seat belts, but that, too, would be no reason upon which this verdict could be explained. OCGA § 40-8-76.1 (d) makes it clear “(t)he failure of an occupant of a passenger vehicle to wear a seat safety belt in any seat of a passenger vehicle which has a seat safety belt shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, . . . , and shall not diminish any recovery of damages arising out of the . . . occupancy ... of a passenger vehicle.”

Under the particular facts of this case, this leaves the Moores, as guest passengers, in the legal situation that their injuries and damages resulted from only one of three possibilities: Either their injuries resulted solely from the negligence of O’Neal, or solely from the negligence of McLeod, or from the combined negligence of both these drivers in causing this collision. The only way to correct this situation is to grant a new trial on the general ground, and it was error to fail to do so.

Although we certainly recognize the deference that must be given to a trial court’s decision on a motion for new trial, because the guest passengers were not negligent, were injured, and incurred special damages, a verdict in their favor but awarding zero damages was strongly against the weight of the evidence. When considered along with the real probability that the jury was confused over issues related to other claims by other parties tried in the same case, there can be little doubt that a new trial was warranted and, indeed, mandated. Therefore, based on the peculiar facts of this case, we find that it was an abuse of discretion to deny the Moores’ motion for a new trial, and reversal is required. This case is remanded to the trial court with directions that it grant a new trial on all issues.

Judgment reversed.

Case remanded with direction. Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Decided December 2, 1998

Reconsideration denied December 17, 1998

Salter & Shook, Mitchell M. Shook, Jason A. Craig, for appellants.

Bovis, Kyle & Burch, James E. Singer, William S. Allred, Stubbs & Associates, M. Francis Stubbs, for appellees.


author: Eldridge, Judge.

text:
    A98A1651.
    WORKMAN v. THE STATE.
    (510 SE2d 109)
   Eldridge, Judge.

Following a bench trial in the State Court of Rockdale County, Judy Workman was found guilty of two counts of driving under the influence of alcohol (less safe driver and excessive blood/alcohol content) and one count of violation of the open container law. She appeals, challenging the trial court’s denial of her motion to suppress based upon: (1) a non-verbatim reading of the implied consent notice; and (2) the State’s failure to show that the roadblock’s initial, screening officer had a “reasonable, articulable suspicion” to divert her car to the side of the road for further questioning. We affirm Workman’s conviction.

Workman was stopped at approximately 3:00 a.m. on New Year’s day at a roadblock set up at the intersections of McCalla and Salem Roads in Rockdale County. An initial, screening officer asked Workman for her license and proof of insurance. The officer then asked Workman to move her car to the side of the road, out of the flow of traffic. The screening officer informed a roadblock investigative officer that Workman “had possibly been drinking.” For this reason, the investigative officer immediately approached Workman’s car to question her. When she exited the car upon request, Workman stumbled. When asked if she had consumed alcohol, Workman stated she had been dancing at a local bar, and she admitted to drinking two beers. The investigative officer testified that he smelled alcohol on Workman’s person, Workman’s eyes were red and watery, and her speech appeared to be slightly slurred.

Upon request, Workman refused to blow into an alco-sensor, but participated in other field sobriety tests, including the horizontal gaze nystagmus. Based on the results of these tests, the investigative officer placed Workman under arrest and read her the implied consent warnings. A partly empty bottle of champagne was found in Workman’s vehicle. A State-administered breath test showed a .13 blood-alcohol concentration. Held:

1. Workman contends that since the arresting officer did not read the implied consent notice verbatim, the trial court erred in admitting the results of her breath test into evidence.

In the court below, Workman contended that the arresting officer did not read the implied consent notice at all. The arresting officer testified that he did. The trial court found as a matter of fact that “[t]he proper implied consent rights were read to Defendant by the arresting officer in a timely manner at the time of arrest.”

“Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Punctuation omitted.) Godfrey v. State, 227 Ga. App. 576, 577 (2) (489 SE2d 364) (1997). See also State v. Mayo, 235 Ga. App. 107 (508 SE2d 475) (1998) (holding that a verbatim reading of the implied consent notice is not required).

2. Raising a Fourth Amendment issue, Workman contends that the State failed to present evidence that the initial, screening officer had a “reasonable articulable suspicion” of criminal conduct so as to permit a “secondary detention” of Workman’s car.

Significant in this claim of error are the issues which are not being challenged: (1) Workman specifically does not challenge the constitutional configuration of the roadblock or the propriety of her stop at the roadblock; (2) specifically, Workman does not raise a challenge to the initial, screening officer’s experience and ability to detect alcohol impairment; and (3) Workman does not challenge the actions of the investigative/arresting officer.

Workman’s enumeration of error is narrowly drawn. She contends only that, after being properly stopped at the roadblock, the initial screening officer’s diversion of her car to the side of the road required an evidentiary showing of “reasonable and articulable suspicion of criminal conduct to permit a secondary detention.”

Thus, framed as a constitutional issue, this enumeration of error provides this Court with an opportunity to examine a screening officer’s role in relation to the stop of a motorist pursuant to a properly configured roadblock. Compare our decision in State v. Fischer, 230 Ga. App. 613 (497 SE2d 79) (1998) wherein an evidentiary issue was before the Court. Such examination must necessarily be conducted in light of the recent Supreme Court of Georgia cases of Brent v. State, 270 Ga. 160 (510 SE2d 14) (1998), and LaFontaine v. State, 269 Ga. 251, 252-253 (497 SE2d 367) (1998).

“The State can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness.” (Citation and punctuation omitted.) LaFontaine v. State, supra at 252-253; Brent v. State, supra at 160. See also United States v. Martinez-Fuerte, 428 U. S. 543 (96 SC 3074, 49 LE2d 1116) (1976). Further, properly configured roadblocks that are set up for the purpose of detecting drivers who are under the influence of alcohol are valid under both the United States Constitution and the Constitution of the State of Georgia. Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (110 SC 2481, 110 LE2d 412) (1990); Brent v. State, supra at 161-162 (2).

Case law makes it clear that “a Fourth Amendment ‘seizure’ occurs when a vehicle is stopped at a checkpoint.” (Emphasis supplied.) Michigan Dept. of State Police v. Sitz, supra at 450. And, as a part of a proper roadblock detention, motorists may be diverted to a second inspection area for questioning without the articulation of “reasonable suspicion” that would sustain a patrol stop. United States v. Martinez-Fuerte, supra at 547, 563-564 (finding that checkpoint stops were properly diverted to a second inspection area without “any articulable suspicion”). See also, e.g., State v. Everson, 474 NW2d 695, 701-702 (N.D. 1991). Moreover, as noted by the United States Supreme Court, since the intrusion in diverting a vehicle to a second inspection area is minimal, and “no particularized reason need exist to justify it, we think it follows that the . . . officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.” United States v. Martinez-Fuerte, supra at 563-564. See also Michigan Dept. of State Police v. Sitz, supra at 453 (holding that a temporary “sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte”).

Accordingly, after being stopped at the properly configured roadblock, Workman was not more “seized” by virtue of being diverted to the side of the road. Such is not a “second detention,” but a continuation of the original investigative stop and a part of the established operation of the roadblock. If the investigative stop was valid in the first place, which fact Workman concedes, briefly prolonging the investigation does not require added proof that the stop was valid. Brent v. State, supra at 162.

It is for this reason that, in Georgia, the challenge to a screening officer has always been to whether his “training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication,” which chailenge Workman does not make in this case. (Emphasis supplied.) LaFontaine v. State, supra at 253; State v. Golden, 171 Ga. App. 27, 29-30 (318 SE2d 693) (1984). The focus on the screening officer’s training implicitly contains the recognition of the realities of roadblock operation. A screening officer often does not have the time to develop “articulable suspicion” for each possible violator and to note such in writing for potential testimony at trial. The screening officer moves the traffic through the checkpoint in an attempt to cause the least amount of disruption for the majority of drivers. “Referrals are made for the sole purpose of conducting a routine and limited inquiry into [possible traffic violations] that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals — rather than questioning the occupants of every car — tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.” United States v. Martinez-Fuerte, supra at 560.

Thus, a screening officer’s “training and experience” to divert traffic become the focus, not an individualized rationale for diverting any particular vehicle. Brent v. State, supra at 163-164 (3).

Here, Workman was properly stopped/“seized” at a roadblock set up on New Year’s night to check license, insurance, and, obviously, to check for “driver[s] that might have been intoxicated.” The roadblock was extremely busy. “Several vehicles around this time, right around three o’clock [a.m.], were being pulled off to the shoulder of the road. We had a string of cars up and down McCalla Road.” Rather than let traffic back up, the initial, screening officer appropriately diverted Workman to a secondary area where the investigative officer immediately approached her. Thereafter, the investigative officer determined that Workman should be detained further for field sobriety tests, which determination Workman does not challenge. There was no Fourth Amendment violation.

Notably, this construction does not conflict with our decision in State v. Golden, supra. There, the detention which was referred to as a “secondary detention” was based upon the receiving officer’s determination to detain the defendant for the “purpose of administering the field sobriety tests,” not the screening officer’s initial decision to divert the defendant’s car for questioning. Id. at 30 (3). More importantly, “given the fact that the defendant had already been momentarily detained at the roadblock, the brief additional intrusion occasioned by asking him to get out of his vehicle to submit to the field sobriety tests must be considered minimal. Balancing the state’s interest in enforcing its drunk driving laws against the individual’s right to be free from unwarranted governmental intrusion into his affairs, we thus hold that the administration of the tests did not violate the defendant’s Fourth Amendment rights.” State v. Golden, supra at 31. Accord Brent v. State, supra at 161-162 (2); Seagraves v. State, 212 Ga. App. 518 (2) (442 SE2d 312) (1994).

Decided December 3, 1998

Reconsideration denied December 17, 1998

William Schneider, for appellant.

Cheryl F. Custer, District Attorney, M. Qader Baig, Assistant District Attorney, for appellee.

The Fourth Amendment prohibition against unreasonable seizures is not violated because a screening officer does not articulate a “reasonable suspicion” for diverting a motorist’s car to a second area for questioning, after the motorist has already been legitimately stopped for investigative purposes at a properly configured roadblock. United States v. Martinez-Fuerte, supra at 563-564; Brent v. State, supra; LaFontaine v. State, supra; Seagraves v. State, supra at 518.

To the extent our otherwise correct evidentiary analysis in State v. Fischer, supra, may be read to conflict with the Fourth Amendment analysis contained herein and in Brent v. State, supra, we will overrule State v. Fischer.

In this case, “[Workman’s] arrest was not the result of a [deputy’s] whimsical decision to stop only [her] vehicle or an arbitrary scheme to single [Workman] out. The stop was made within the constitutional confines of a routine motorist roadblock . . . and [Workman’s] ensuing arrest was the result of [her] personal decision to operate a motor vehicle while in an intoxicated state.” LaFontaine v. State, supra at 253.

Judgment affirmed.

Andrews, C. J, McMurray, P. J, Pope, P. J, Johnson, P. J., Beasley, Blackburn, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur.

       “[T]he decision to implement the roadblock was made by supervisory personnel rather than by the officers in the field; all vehicles were stopped, leaving no discretion to the officers as to which vehicles to stop; the delay experienced by passing motorists was minimal; the operation was well identified as a police checkpoint; and the ‘screening’ officer’s training and experience were sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.” Evans v. State, 190 Ga. App. 856, 857 (380 SE2d 332) (1989). Accord Brent v. State, 270 Ga. 160, 161 (2) (510 SE2d 14) (1998).


author: Judge Harold R. Banke.

text:
    A98A0921.
    NORTHEN v. MARY ANNE FROLICK & ASSOCIATES.
    (510 SE2d 122)
   Judge Harold R. Banke.

Mary Anne Frolick & Associates, d/b/a Re/Max Achievers (“Re/ Max”) sued Arthur J. Northen, Jr. to recover a real estate commission after Northen breached a contractual obligation to purchase a $3.2 million residence. Re/Max’s complaint had two counts, one for breach of contract and one for attorney fees based on bad faith and stubborn litigiousness.

After experiencing some discovery difficulties, Re/Max filed a motion to compel and for sanctions. Based upon a determination that Northen “completely failed to respond to Plaintiff’s Second Request for Production of Documents,” the trial court struck Northen’s answer and entered default judgment. In a January 29, 1997 order, the trial court awarded $97,500 plus interest to Re/Max on its breach of contract claim, and found Northen liable for damages for bad faith and stubborn litigiousness. The court also awarded $500 in attorney fees to Re/Max for expenses incurred in bringing the motion.

When Northen attempted to appeal this order, that appeal was dismissed on the grounds that the order and judgment were not final and because Northen did not obtain a certificate of reviewability. Subsequently, the trial court entered a second order on March 10, 1997, which awarded Re/Max $36,431 in attorney fees plus $1,560 for expenses on the bad faith claim.

After the imposition of sanctions for the discovery problems and after the entry of both orders, Northen retained new counsel, R. Scott Tobin, who entered an appearance on April 30, 1997. As Northen’s new counsel, Tobin filed an emergency motion to stay the enforcement of the two orders, contending that neither order constituted a final judgment because the first order made clear that damages were yet to be determined on the bad faith claim, and the latter order lacked finality since it did not incorporate the first judgment. The trial court denied this motion.

On Northen’s behalf, Tobin filed a notice of appeal relating to the order dismissing the appeal (entered April 30, 1997) and from the order denying the emergency motion to stay enforcement of the orders dated January 29 and March 10 (entered on May 14, 1997). On or about October 7,1997, Tobin withdrew as counsel after Re/Max filed a second motion for contempt directed at both Northen and him. Held:

1. Northen contends that the trial court erred in dismissing his notice of appeal dated February 28,1997. He contends that the January order was directly appealable as a final order because it addressed and granted the relief requested in both Counts 1 and 2 of Re/Max’s complaint. Northen claims that the order not only awarded contract damages but also granted attorney fees under Count 2.

The record belies his argument. The January order expressly provided that the attorney fees award was for the cost of bringing the motion for sanctions under OCGA § 9-11-37 and that the damages for bad faith were yet to be determined. See OCGA § 5-6-34. Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1981). Because an issue remained to be resolved, it was not an appealable judgment within the meaning of OCGA § 5-6-34. Absent a certificate of reviewability, the notice of appeal as to that order was premature and properly dismissed. Jones v. Singleton, 253 Ga. 41, 42 (1) (316 SE2d 154) (1984).

Decided December 4, 1998

Reconsideration denied December 18, 1998.

Arthur J. Northen, Jr., pro se.

Bivens, Hoffman & Fowler, Luther B. Bivens, for appellant.

Fowler, Hein & Kreimer, Stanley E. Kreimer, Jr., for appellees.

Hendrick, Phillips, Schemm & Salzman, Victoria H. Tobin, amicus curiae.

2. Northen contends that if the January order and judgment were non-final or interlocutory then the court erred in denying his emergency motion for stay of enforcement of both the January and March orders because Re/Max would not have been entitled to the issuance of a fieri facias. We disagree.

Although the January order did not resolve all issues, the March order concluded the case when the court ruled on the only remaining issue. Inasmuch as Northen cites no legal authority supporting his entitlement to stay the enforcement of the latter order, and we know of none, the trial court did not err in denying the emergency motion. See Sevcech v. Ingles Markets, 222 Ga. App. 221, 226 (8) (474 SE2d 4) (1996).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Tobin withdrew as counsel before the docketing of this appeal. In a separate filing, Case No. A98A2472, Tobin appeals the trial court’s monetary sanction of more than $27,000 awarded to Re/Max against him personally.


author: Smith, Judge.

text:
    A98A0991.
    WILLIAMS v. WORSLEY et al.
    (510 SE2d 46)
   Smith, Judge.

Alice and Allen Worsley, as parents of Ashley Worsley, brought this wrongful death action against Thomas Williams, Alice Worsley’s father, after 13-year-old Ashley was electrocuted on Williams’s property. The case was tried to a jury, which returned a verdict in favor of the Worsleys in the amount of $10,000. The trial court subsequently granted the Worsleys’ motion for new trial only on the issue of damages, on the ground that the jury’s award was “clearly so inadequate as to be inconsistent with the preponderance of the evidence.” After a second trial, a jury found the full value of Ashley’s life to be $750,000. Williams appeals, raising several enumerations concerning both trials.

Ashley was found dead under an open building, or shelter, owned by Williams, his grandfather. It appears from the evidence presented that a chain, which had been hung over a rafter in the shelter, contacted a fluorescent light fixture attached to the rafter. The fixture was not grounded, and expert testimony was presented that the ballast in the fixture had shorted. Apparently unknown to anyone, the electric switch in the shelter had been engaged, although the lights were not actually operating. Ashley was electrocuted when his hand touched the chain. This building, used as a storage shelter, had been constructed sometime in 1980 or 1981 by Williams with the assistance of Allen Worsley. Williams, however, wired the building for electricity and admitted he did not ground the fluorescent light fixture. He testified that he meant to ground the fixture but never did.

Williams raises several arguments with respect to each trial. Finding no error, we affirm.

1. Williams contends the trial court erroneously failed to instruct the jury during the first trial that Ashley was a licensee on Williams’s property and on the applicable standard of care to be applied to licensees.

A licensee is a person who is not a customer, servant, or trespasser, does not have a contractual relationship with the owner of the premises, and is permitted to enter the premises merely for his or her own interests, gratification, or convenience. OCGA § 51-3-2. Williams argues that Ashley was inside the shelter for his own gratification and therefore that a charge on the duty owed to licensees was required. But the record is silent as to why Ashley was inside the shelter. The question of whether Ashley was a licensee was not raised by the evidence, and a charge on this issue was therefore unauthorized. “For a refusal to give a requested charge to be error, the request must be entirely correct, accurate, adjusted to the pleadings, law and evidence, and not otherwise covered in the general charge. [Cit.]” Smith v. Curtis, 226 Ga. App. 470, 471 (2) (486 SE2d 699) (1997).

2. Williams contends the trial court erroneously permitted the Worsleys’ expert to testify that the fixture was negligently installed. We do not agree. The expert testified that the fixture was not connected in a safe manner and that electrocution is a possibility when a fixture is not properly grounded. Williams objected to the expert’s subsequent testimony that the fixture was negligently installed. We find no error in the admission of this testimony, for the average person is not familiar with electrical installation procedure. And “it is well established that an expert witness may testify even as to the ultimate issue of fact where the inferences to be drawn from the evidence are beyond the ken of jurors. [Cit.]” Fouts v. Builders Transp., 222 Ga. App. 568, 576-577 (8) (474 SE2d 746) (1996) (Department of Transportation engineer properly allowed to testify that intersection negligently designed).

3. Williams argues that the trial court erroneously concluded that comparative negligence was not an issue in the first trial. Had comparative negligence been an issue, the trial court would not have been authorized to grant a new trial on damages only. See Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 104-105 (2) (498 SE2d 524) (1998). Although Williams has submitted the affidavits of two jurors reciting that the jury considered, among other things, the Worsleys’ failure to control Ashley, as well as the “negligence of the deceased minor child,” we cannot agree with Williams that comparative negligence was an issue properly raised during the first trial. Williams did not include in his pleadings any allegations of negligence on the part of Ashley or the Worsleys, nor was comparative negligence made an issue in the pretrial order. Furthermore, even if evidence was arguably presented at trial hinting that the Worsleys or Ashley may have been at fault, Williams did not argue that comparative negligence principles applied, and the jury was not instructed that it could reduce any award in proportion to plaintiffs’ fault. See Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997) (under comparative negligence doctrine, plaintiff whose negligence is less than negligence of defendant not denied recovery, but damages diminished in proportion to degree of fault attributable to plaintiff). Comparative negligence principles, which would have directed the jury concerning the effect of evidence of plaintiffs’ fault, were not affirmatively placed before the jury. Comparative negligence therefore was not properly made an issue.

4. The trial court granted the Worsleys’ motion for new trial only as to damages, on the ground that the jury’s verdict was inadequate. Williams contends this was error. We do not agree.

We recognize the difficulty faced by any jury in determining the value of human life. This difficulty is necessarily compounded when a jury must place a value on the life of a child, particularly since such objective standards as earning capacity often have not yet been established with regard to children. A jury making such a complex decision must make its award based on the subjective standard of its collective experience: “[T]he value of the child’s life must be established by the enlightened conscience of an impartial jury as applied to the evidence in the case, including testimony as to such child’s age, life expectancy, precocity, health, mental and physical development, family circumstances, and from the experience and knowledge of human affairs on the part of the jury.” (Citation and punctuation omitted.) Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 888 (311 SE2d 193) (1983). Under the authority of OCGA § 51-12-12 (b), a trial court may grant a new trial only as to damages if the jury’s damages award “is clearly so inadequate . . . as to be inconsistent with the preponderance of the evidence.”

Of course, we also recognize that any life, especially that of a child, escapes precise valuation and must be measured against subjective standards. We further recognize that jury verdicts, in general, are to be given great deference. Nevertheless, we have no hesitation in saying that the first jury’s $10,000 award for the value of Ashley’s life was inconsistent with a preponderance of the evidence. Undisputed evidence was presented to the jury that Ashley, who was in seventh grade at the time of his death, was a good student, was obedient, and “was a very good child.” No countervailing evidence was presented showing, for example, that Ashley was in poor health and not expected to live a normal life span. And as discussed above, comparative negligence principles were not affirmatively placed in issue in the case; the jury was given no guidance as to the effect of the Worsleys’ or Ashley’s negligence, if any, on its verdict. Under these circumstances, we cannot say the trial court abused its discretion in granting a new trial on damages only.

5. Williams enumerates as error the trial court’s refusal to permit him “to amend his answer before entry of the pretrial order prior to the second trial to reflect the evidence admitted at the first trial of the matter relating to comparative negligence and responsibility of the parties.” In a separate enumeration he similarly contends that the trial court erred in granting the Worsleys’ motion in limine before the second trial, “thereby eliminating discussion of causation, foreseeability, comparative negligence and other issues during the second trial of the case and denying [him] a fair trial.” But because the trial court properly allowed a new trial only on the issue of damages, further litigation on the issue of the parties’ negligence was precluded. Williams was afforded the opportunity to make comparative negligence an issue in the first trial and failed to do so. We find no merit in these arguments.

6. Williams contends that the trial court’s grant of the Worsleys’ motion for new trial only on damages defeated his due process rights to a fair and impartial jury as guaranteed by the Georgia Constitution. Assuming that Williams properly raised the issue and secured a ruling below, the trial court’s ruling was not error. A new trial only on damages is expressly authorized in certain instances by OCGA § 51-12-12 (b). Williams was given full and fair opportunity in the first trial to place before the jury issues concerning comparative negligence, which may or may not have affected the jury’s award.

7. Williams argues the trial court erred in admitting photographs depicting Ashley at the scene of his death. The “admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Even evidence of doubtful relevancy or competency should be admitted and its weight left to the jury. Further, where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations and punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 221 (8) (489 SE2d 329) (1997). The photographs at issue here were at least marginally relevant to the issues raised in this case. But even assuming, without deciding, that the photographs were not relevant to any issue raised in the second trial only on damages, their admission was harmless; they were not gruesome, nor has Williams shown, under the circumstances present here, that the photographs were particularly inflammatory. See generally Matthews v. State, 268 Ga. 798, 800 (3) (b) (493 SE2d 136) (1997); Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 780 (13) (403 SE2d 235) (1991) (full concurrence as to Division 13).

8. Williams contends the trial court erred during the second trial by instructing the jury that the value of Ashley’s life was measured by the value to the deceased. He apparently takes issue with that portion of the court’s charge stating that the measure of damages was the value of life to Ashley to himself had he lived. It is true that a similar charge appears to have been somewhat criticized. See Reliance Ins. Co. v. Bridges, 168 Ga. App. at 886-887. But as in Reliance, we find no error. The court here also charged the jury, in compliance with OCGA § 51-4-1 (1), that if plaintiffs were entitled to recover damages, they could recover “the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased, if that person had lived.” Moreover, the court charged the jury that the measure of damages was the full value of the life of the child as found by its enlightened conscience and that the issue of damages was left “to the sound judgment, experience and conscience of the jury.” Considering this charge as a whole, as we must, see, e.g., Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986), we cannot say the trial court erred.

9. Williams’s argument that the trial court erred by denying his motion to permit immediate review “as to the issues raised by the grant of the plaintiffs’ motion for new trial as to damages only” is rendered moot by our holdings in Divisions 3 and 4.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided November 24, 1998

Reconsideration denied December 18, 1998

Porter, Lehman & Chason, Thomas L. Lehman, for appellant.

Ronnie J. Lane, for appellees.