text:
    A94A0753.
    A94A0754.
    A94A0755.
    WILLIAMS v. THE STATE. HERRING v. THE STATE. WILSON v. THE STATE.
    (443 SE2d 534)
   Birdsong, Presiding Judge.

Deon Williams, Enorris L. Herring, and Cedric Wilson were jointly tried before a jury and found guilty of aggravated assault, possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. Each appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdicts of guilt. Their separate appeals, arising from that joint trial, are consolidated for disposition by this opinion.

The evidence presented showed that after a man was wounded in a drive-by shooting in Moultrie, Georgia, the three appellants were arrested in Miami Shores, Florida, when they fled from a car that was stopped by the police, in part, because it matched the description and license tag of the car used in the drive-by shooting. The three appellants were identified as having participated in the shooting in Moultrie and a .38 caliber bullet that was taken from the scene of the shooting was identified by a ballistics expert as having been fired from a .38 caliber pistol that was found near where appellants were apprehended in Florida.

All appellants contend the trial court erred by admitting in evidence, over their timely objection, the .38 caliber pistol identified as having been used in the offenses charged. Wilson also asserts the general grounds and Williams and Herring allege the evidence was insufficient to sustain their convictions under the Jackson v. Virginia (443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)) standard. Herring further asserts that there was a fatal variance between the indictment and the proof at trial and the trial court failed to charge on two purported lesser included offenses. Held:

Case Nos. A94A0753, A94A0754, A94A0755

1. All appellants allege the trial court erred by admitting the .38 caliber pistol in evidence because the pistol was not properly identified. A “weapon may be admissible if the identification is sufficient to allow the jury to decide, under the evidence relative to identification, whether it is the identical weapon used by the defendant.” Dunn v. State, 263 Ga. 343, 345 (434 SE2d 60). Here an officer from Miami Shores testified that he stopped a car matching the description of the one involved in the drive-by shooting, that three men who were identified by the victim as the men who participated in the shooting fled from the car, that the officer made an in-court identification of appellants as the men who fled from the car, that a box of .38 caliber ammunition was found in the car, that he found the pistol near the path of the men who fled from the car and near where one of the men fell, that the officer testified that the pistol was the one that he saw on the ground, and the officer identified a photograph taken at the scene as that of the pistol. Further, the evidence showed that the photograph was received from the Miami Shores Police Department with the pistol that was received in evidence. Moreover, the pistol was the same caliber as one of the weapons used in the shooting and a ballistics expert testified that a bullet taken from the scene of the shooting was fired from the pistol introduced in evidence. This identification was sufficient to authorize the jury to decide whether the pistol admitted in evidence was the weapon used by appellants. Id. Accordingly, the trial court did not err by admitting the pistol in evidence.

2. Appellants also contend the evidence was insufficient to sustain their convictions. “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the [defendants] guilty of the crimes for which [they were] convicted beyond a reasonable doubt. Jackson v. Virginia, [supra]; Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829). Therefore, appellants’ assertions to the contrary are without merit.

Case No. A94A0754

3. Herring separately contends there was a fatal variance between the allegation in the indictment that the assault was upon Dafene Mussottee and the proof presented at trial. Even though the record shows the indictment alleges an “assault upon the person of Dafene Mussottee a/k/a James Bryant” and the transcript shows that the victim testified that he was James Bryant and had never been known as Dafene Mussottee, there was no fatal variance. Others testified that the victim was known as Dafene Mussottee and one police officer testified that when the officer interviewed him, the victim responded to both Dafene Mussottee and James Bryant. Consequently, there was no variance between the allegation and the proof. Moreover, since Herring was informed of the charge against him, there is no indication that he was surprised by the evidence, and he is protected against another prosecution for this offense; there was also no fatal variance as a matter of law. Shackelford v. State, 179 Ga. App. 595, 596-597 (347 SE2d 346). This enumeration of error is also without merit.

4. Herring further contends the trial court erred by refusing to give his requested charge on the lesser included offense of terroristic acts (OCGA § 16-11-37 (b) (2)) because the jury could have found from the evidence that he was guilty only of shooting at the car in which the victim was sitting. Although this argument may have merit in an appropriate case, there is no evidence that Herring was merely firing at an occupied vehicle. Instead, Herring’s sole defense was that he was at his cousin’s house and not at the scene of the shooting. Consequently, the trial court did not err by refusing to give this charge as the evidence did not reasonably raise the issue that Herring may have been guilty of the lesser crime. Alvarado v. State, 194 Ga. App. 781, 782 (391 SE2d 668); Herndon v. State, 187 Ga. App. 77, 78 (369 SE2d 264). Compare State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550): A written request to charge on a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.

Decided May 2, 1994.

Short, Fowler & Castellow, David E. Mullís, for Williams.

Kirbo & McCalley, Thomas L. Kirbo III, for Herring.

J. Michael Mullís, for Wilson.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

5. Herring further contends the trial court erred by refusing to give a timely written requested charge on the lesser included offense of pointing a weapon at another (OCGA § 16-11-102). His argument on this issue is as follows: “Based on the same argument and citation of authority as set forth in Section II (C) of this brief, which argument and citation of authority is by this reference incorporated herein, the appellant respectfully submits that the trial court erred in failing to give this request to charge.” Since none of the arguments supporting the previous enumeration of error mentions this issue, we find that Herring has abandoned this issue. Court of Appeals Rule 15 (c); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564). Moreover, this argument is without merit for the reason stated in Division 4, supra.

Judgments affirmed.

Cooper and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A0793.
    STEINBERGER v. BARWICK PHARMACY, INC. et al.
    (444 SE2d 341)
   Blackburn, Judge.

The appellant, Rita Steinberger, filed the instant action for damages under a negligence theory against Barwick Pharmacy, Inc. (Bar-wick) and Briarcliff Realty, Inc. (Briarcliff), as a result of injuries she sustained in a fall from a single step platform located within the pharmacy. Specifically, Steinberger alleged that the one-step platform was a latent defect and that Barwick and Briarcliff were negligent in maintaining such a defect and negligent in failing to provide handrails on either side of the platform. She further alleged that the dangerous condition was constructed by or at the direction of Briarcliff and this negligent construction was the proximate cause of her fall and her injuries.

Thereafter, both Barwick and Briarcliff moved for summary judgment and the motions were granted by the trial court. The court below found that the clear and undisputed evidence showed that Steinberger failed to exercise reasonable care for her own safety. The trial court also denied Steinberger’s motion to join as a party defendant Briarcliff Shopping Center, Inc., the owner of the premises leased by Barwick, based upon the court’s conclusion that the issue was moot in light of its decision on the motions for summary judgment. This appeal followed.

The record, viewed in the light most favorable to Steinberger, the nonmovant, shows that on August 29, 1991, as a part of her duties as an interviewer with a medical marketing research firm, Steinberger visited Barwick Pharmacy for the first time for a scheduled interview with Eddie Harelik, the owner of the pharmacy. Steinberger entered the pharmacy and proceeded to Harelik’s office at the rear of the pharmacy. The office was located on a raised platform approximately seven inches above the level of the main floor of the pharmacy. The platform was covered with reddish-brown carpeting, the floor was covered with a beige-colored terrazzo, and the face of the platform had been painted black. Steinberger had no problem seeing the raised ledge and stepped up onto the ledge without incident.

After an hour-long interview, Steinberger fractured her elbow when she stepped off the platform without looking down. At the time of the fall, Steinberger had not been distracted, did not trip, and admitted that if she had been looking down at the time of the fall, she may have seen the step down. No averments were made by Steinberger that the lighting was a factor in her fall. While there were no signs warning of the raised platform or handrails in place, the step down was open and obvious, and the evidence indicates that Steinberger was not looking in any event and so the absence of these items are of no consequence.

1. Initially, Steinberger maintains that the trial court erred in granting the motions for summary judgment in light of her experts? testimony that the one-step platform was inherently dangerous and a pedestrian exercising ordinary care would not likely perceive the presence of the danger. We disagree.

It is undisputed that Steinberger was an invitee at the time of the fall and in order to recover for injuries sustained due to an allegedly hazardous condition on a property, an invitee must show fault on the part of the owner or occupier of land and their own ignorance of the danger. Bodenheimer v. Southern Bell Tel. &c. Co., 209 Ga. App. 248 (433 SE2d 75) (1993). “Where the case involves a static dangerous condition, the rule is well established that ‘the basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ . . . [Cit.]” Powell v. Woodridge Condo. Assn., 206 Ga. App. 176, 177 (424 SE2d 855) (1992).

While Steinberger presented expert testimony that the platform was inherently dangerous because an infrequent user acting reasonably and cautiously may easily fail to detect its presence, this court has held that such raised-level surfaces are not inherently dangerous as a matter of law. In Lane v. Maxwell Brothers & Asbill, Inc., 136 Ga. App. 712, 713 (222 SE2d 184) (1975), we specifically held that “ ‘[p]latforms are usual things in stores. . . . They are not inherently dangerous. The evidence here shows that there was nothing unusual or dangerous in the manner in which the platform was placed. . . . When they are placed so as to not threaten or endanger those visiting the store, within full sight and observation, the merchant is not liable for accidents caused by the carelessness and inattention of others.’ [Cit.]” See also Hosp. Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103) (1991).

We disagree with Steinberger that Lane is distinguishable, and the facts herein are controlled by Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812 (318 SE2d 235) (1984). On the contrary, Robinson is factually distinguishable from the subject case. Moreover, there is no evidence that the contrasting colors used on the platform, riser and floor area created such an optical illusion which made descending the stairs difficult. Cf. Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (2) (349 SE2d 241) (1986).

Additionally, “[i]n the case at hand, the ultimate issue is whether defendant^] wfere] negligent in maintaining a hazardous condition on the property. In everyday life, persons are required to negotiate the floors, steps and doorways of buildings. It is within the experience and capacity of an average layman to determine whether a [platform] in a [pharmacy] is a hazardous condition. Thus ... it does not appear that any particular professional skill or specialized knowledge would necessarily be required to penetrate a ‘shroud of mystery’ surrounding that issue. [Consequently], the conclusions of [an] expert witness are not admissible on the ultimate issue of defendant^’] negligence and [the expert’s] testimony does not preclude the grant of summary judgment. . . .” (Citations and punctuation omitted.) Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) (1993).

Even assuming arguendo that the platform was defective as alleged by Steinberger, “ ‘ [i]t is uncontroverted that upon entering the [office] appellant had crossed the same area in which she fell while leaving. Thus, appellant cannot show appellee[s’] superior knowledge, which is necessary in order for her to recover. When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.’ . . . [Cit.]” Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (1) (435 SE2d 764) (1993).

Steinberger failed to exercise reasonable care for her own safety because “ ‘(i)t was incumbent upon her, as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path.’ . . . [Cit.]” J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994). “An invitee is under an equal duty with the owner to use her sight to discover any defect or dangers.” (Citations and punctuation omitted.) Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). “If plaintiff knows of a defect, ‘(she) must make use of all (her) senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to (her).’ [Cits.]” Hall v. Thompson, 193 Ga. App. 574, 575 (388 SE2d 381) (1989). Steinberger cannot recover for her own misadventure. Rose, supra.

2. Next, Steinberger argues that summary adjudication was inappropriate because Barwick and Briarcliff failed to provide handrails on the one-step platform in violation of several building safety codes in effect when the building was constructed and at the time of her fall. Steinberger argues that those violations establish negligence per se. However, “even assuming that appellee[s] w[ere] negligent in not maintaining the [handrails] at [the] facility in accord with the building codes, appellant is nevertheless not entitled to recover where it is clear that her knowledge of the alleged ‘defective condition’ and potential danger evidenced by the [one-step platform] was equal to that of appellee [s]. This is particularly true since appellant had only [an hour] before traversed the same route of which she now complains. [Cit.]” Motes v. 6 ‘S’ Co., 186 Ga. App. 67, 68 (366 SE2d 358) (1988).

Steinberger’s reliance on Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989) and Bastien v. Metro. Park Lake Assoc., 209 Ga. App. 881 (434 SE2d 736) (1993) is misplaced. Thompson and Bastien involve alleged violations of OCGA § 44-7-2, which statute specifically forbids landlords from avoiding their duties created by housing codes.

3. Lastly, we reject Steinberger’s assertion that the trial court erred in failing to join Briarcliff Shopping Center, Inc., as a party defendant. The trial court correctly concluded that the issue was moot. Moreover, any action against Briarcliff Shopping Center, Inc., is barred by the eight-year statute of limitation applicable to such an action under OCGA § 9-3-51 (a) (3). The record shows that the building at issue was constructed in 1960 and this action was commenced in May 1992, and there is no evidence that would toll the limitation period. Therefore, the trial court did not err in failing to join Briar-cliff Shopping Center, Inc. as a party to this action. See U-Haul Co. of Western Ga. v. Abreu & Robeson, Inc., 156 Ga. App. 72 (274 SE2d 26) (1980).

Decided April 19, 1994

Reconsideration denied May 3, 1994

Robert L. Herman, Kathie G. McClure, for appellant.

Irwin, Bladen, Baker & Russell, Kathleen M. Pacious, Sharon W. Ware & Associates, Emory A. Wilkerson, Donald W. Osborne, for appellees.

4. Considering the undisputed evidence in this case and the controlling principles of law in such actions, there was no valid reason for Steinberger to anticipate reversal of the trial court’s judgment. Consequently, pursuant to Rule 26 (b) of the Rules of the Court of Appeals of Georgia, we assess a penalty of $500 against Steinberger for filing this frivolous appeal. The trial court is directed to enter judgment against Steinberger in the amount of $500 upon the return of the remittitur. See Miller v. Trammell, 198 Ga. App. 27 (400 SE2d 387) (1990).

Judgment affirmed with direction.

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


author: Johnson, Judge.

text:
    A94A0033.
    GADDIS v. GEORGIA MOUNTAIN CONTRACTORS et al.
    (443 SE2d 710)
   Johnson, Judge.

Robert Gaddis injured his right eye in 1977 while employed by Georgia Mountain Contractors (GMC). Liberty Mutual Insurance Company, GMC’s workers’ compensation insurance carrier, paid Gad-dis, among other things, $11,875 for 100 percent permanent partial disability to the eye. In 1986, Gaddis underwent a successful corneal transplant, which significantly improved his eyesight to the point that he was able to read with his right eye. In 1988, Gaddis sustained a second on-the-job injury when a nail struck his right eye. This injury caused the corneal implant to fail and Gaddis once again lost the use of his right eye.

Gaddis applied for 100 percent permanent partial disability benefits for the second eye injury. The administrative law judge (ALJ) entered an interlocutory order, directing GMC and Liberty to show cause why the requested benefits should not be paid. Liberty responded to that order by showing that it had filed a notice of payment form with the State Board of Workers’ Compensation which indicated that Gaddis was entitled to 100 percent permanent partial disability benefits for the eye injury at the rate of $175 per week for 150 weeks, and that it had already made the first payment. Based on this showing, the ALJ entered an award on June 15, 1990, finding that Gaddis was entitled to 100 percent permanent partial disability benefits. On October 4, 1990, the board adopted the ALJ’s award. GMC and Liberty never appealed from this 1990 award to the superior court.

Approximately two years later, and after having made permanent partial disability payments to Gaddis totaling $20,825, Liberty suspended payment and filed a motion requesting that Gaddis be ordered to reimburse the full amount paid because it had previously paid 100 percent permanent partial disability benefits for the first right eye injury sustained in 1977. In October 1992, the ALJ granted Liberty’s motion, finding that Gaddis is not entitled to the benefits awarded in 1990 and directing him and his attorney to reimburse Liberty. In 1993, the board adopted the ALJ’s order and the superior court affirmed the board’s ruling. This court granted Gaddis’ application for discretionary review.

1. Gaddis challenges the authority of the board to modify the 1990 award more than two years after it was made. Although the board does not refer to its 1993 ruling as a modification of the 1990 award, the plain effect of that ruling is to completely reverse the 1990 award. “[T]he State Board of Workers’ Compensation has no continuing jurisdiction over its awards except to determine a change in condition. The board is an administrative body and it possesses only the jurisdiction, power, and authority granted to it by the legislature. Only within the time period for appealing an award to the full board may the board or its members reconsider, amend, or revise the award to correct apparent errors and omissions.” (Citations and punctuation omitted.) McGinty v. Alfred L. Simpson & Co., 188 Ga. App. 718, 719-720 (374 SE2d 217) (1988). In the present case, the board did not reconsider and modify the 1990 award based on any change in condition; rather, it did so based solely on the finding that prior to 1990 Gaddis had already recovered the full amount of permanent partial disability payments available for his injured right eye. The board had no authority to modify the 1990 award two years later on this basis. When the ALJ’s award was timely appealed to the board in 1990, it could have reversed the award on this basis, but it instead adopted the award. See OCGA § 34-9-103. Because GMC and Liberty never appealed from the board’s 1990 award to the superior court, that award became a final and binding judgment. See OCGA § 34-9-105. The doctrine of res judicata bars the board’s current attempt to modify that final judgment. McGinty, supra at 719; Caldwell v. Perry, 179 Ga. App. 682, 683-684 (2) (347 SE2d 286) (1986); Ga. Cas. &c. Co. v. Randall, 162 Ga. App. 532 (292 SE2d 118) (1982). The lower court therefore erred in affirming the board’s decision modifying the 1990 award.

Decided May 3, 1994.

Siler & Associates, Timothy A. Siler, Randolph W. Carter, for appellant.

Hines & Head, Michael D. Usry, for appellees.

2. Because of our ruling in Division 1, we need not address Gad-dis’ remaining enumerations of error.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


author: Smith, Judge.

text:
    A94A0051.
    WILLIAMS et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (443 SE2d 713)
   Smith, Judge.

This insurance coverage dispute arose out of a collision between a car driven by Billy Williams and a car driven by Jerome Colvin and owned by James Whitmore. Williams and his wife filed suit against Colvin and Whitmore. Georgia Farm Bureau, Whitmore’s liability carrier, filed a declaratory judgment action against the parties to the personal injury action and Safeway Insurance Company, the Williamses’ uninsured motorist carrier. Georgia Farm Bureau filed a motion for summary judgment on the basis of its policy provisions, contending that Colvin did not have permission to use the vehicle or, alternatively, was using Whitmore’s vehicle outside the scope of the permission given. The trial court granted summary judgment to Georgia Farm Bureau, and the Williamses appeal.

Colvin lived in a house adjoining one of Whitmore’s businesses and from time to time did various jobs for Whitmore. If this work required the use of a vehicle, Whitmore would provide Colvin with the keys and an insurance card for one of his business vehicles. On the morning of the collision, Whitmore gave Colvin the keys and insurance card for his Chevrolet van to pick up “Junior and James,” Colvin’s cousins, to perform some work for Whitmore.

On the evening of the same day, after consuming two to three beers, Colvin took his cousins home in Whitmore’s van. He stayed at his cousins’ house for approximately one hour, then took his six-year-old son to pick up a pizza for supper. After leaving the pizza restaurant, he stopped by a liquor store and purchased a gallon of liquor. The route to the Pizza Hut and the liquor store was a detour from his direct route home. After leaving the liquor store, Colvin collided with Billy Williams’s vehicle on Memorial Drive. He was charged with DUI and failure to have proof of insurance.

The evidence is in conflict as to whether Colvin had permission to use the vehicle at the time of the collision. Whitmore denies that he gave Colvin permission to take the van in the evening, because James and Junior told him they had a ride home, and because he observed that Colvin had been drinking. Whitmore did not know Colvin had taken his van until the following day and reported it stolen to the police. Colvin contends that he was given permission, or at least that he understood he was to take his cousins back to their home.

Whitmore’s policy with Georgia Farm Bureau provides coverage for “[ajnyone else while using with your permission a covered ‘auto’ ” and also provides an exclusion from coverage for “[u]sing a vehicle without the express permission of the named insured as shown in the declarations, or if permission is granted, acting outside the scope of said permission.” (Emphasis supplied.) With regard to the scope of the permission Colvin contends was given to him by Whitmore, Colvin’s recorded statement to an insurance adjuster is in direct contradiction to his testimony on deposition.

In the recorded statement, Colvin stated that Whitmore loaned him the van to perform business-related chores. Colvin confirmed that Whitmore asked him to return the van as soon as his business-related duties were completed. He also confirmed that the night in question was the first time he had deviated from Whitmore’s instructions to return the van right after he had completed his job duties. At his deposition, Colvin testified that he had the van in his possession for approximately one month in order to ferry his cousins back and forth to work. He maintained that he had the keys in his possession “24 hours a day” and had no understanding with Whitmore regarding the scope of his permission to use the vehicle. However, he also acknowledged that Whitmore loaned him the van in order to do chores connected with Whitmore’s business. He stated that he did not discuss with Whitmore going to get something to eat or visiting the liquor store.

The unexplained and contradictory testimony of a party-witness on his own behalf is construed most strongly against him on summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Colvin’s somewhat repetitive deposition testimony gives no explanation for the alteration in his statement. “ ‘(T)he record in the present case suggests no explanation whatever for [Colvin’s] contradictory testimony. . . .’ [Cit.] Accordingly, the contradiction will be construed most strongly against [Colvin] even though he is the non-moving party.” Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 290 (1) (375 SE2d 267) (1988).

Decided May 3, 1994.

Friedberg, Stein, Goldstein & Silver, Donald J. Stein, for appellants.

Fain, Major & Wiley, Charles A. Wiley, Jr., Christine M. Maclver, for appellee.

Construing the contradictory testimony against Colvin, even assuming Colvin had permission to use the van to take his cousins home, he exceeded the scope of that permission. When he drank beer with his cousins, stayed at their house for over an hour, then took the van with his six-year-old son to a pizza restaurant and to a liquor store, he deviated substantially from the scope of his permission to use the vehicle. Select Ins. Co. v. Register, 192 Ga. App. 145 (384 SE2d 238) (1989). In Select Ins. Co., supra, an employee of the insured company was assigned a company truck to drive between work and home. He used the truck on a personal errand, met some friends and joined them in drinking beer and gin for several hours, then drove the company truck into another vehicle. This court held that he had deviated substantially from the scope of permission granted by his employer and hence was not an insured under the employer’s policy. Select Ins. Co., supra at 147.

The “first instance permission” rule urged by the Williamses is not the law of this state, except in the specific instance of a self-insurer under the relevant statute. Select Ins. Co., supra at 147; Nat. Svc. Indus. v. Transamerica Ins. Co., 206 Ga. App. 337, 339 (1) (425 SE2d 327) (1992). Assuming without deciding that Colvin had permission to operate the vehicle on the night of the collision, his own testimony, with contradictions construed most strongly against him, shows that he deviated substantially from the scope of any such permission. The policy exclusion therefore applies and the trial court did not err in granting summary judgment in favor of Georgia Farm Bureau.

Judgment affirmed.

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

       Although appellant does not raise the issue, it appears that a contradictory statement need not be under oath to be considered in the context of Rossignol. In Southern Guaranty Ins. Co. v. Jeffares, 190 Ga. App. 449, 451 (2) (379 SE2d 167) (1989), overruled on other grounds, Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 603-604 (385 SE2d 677) (1989), this court considered a recorded statement given to an insurance company contradictory, but concluded that it had been satisfactorily explained. See also Bridgestone Firestone v. Green, 198 Ga. App. 858, 860 (2) (403 SE2d 442) (1991) (res gestae statement); Oliver v. Housing Auth. of Augusta, 189 Ga. App. 54, 55 (1) (374 SE2d 832) (1988) (statement in application for public housing).


author: Pope, Chief Judge.

text:
    A94A0553.
    DEAL v. THE STATE.
    (443 SE2d 713)
   Pope, Chief Judge.

Defendant was convicted of theft by receiving stolen property. He appeals following the denial of his motion for new trial, contending in his sole enumeration of error that the trial court erred in holding a Jackson-Denno hearing in his absence to determine the admissibility of his statement.

On the morning of his trial, defendant, who was free on bond, did not appear. Although counsel and the court thought defendant might be in the hospital, no one knew for certain where he was, and defendant’s attorney could not and would not waive his presence at the trial. A bench warrant issued, and the trial was continued. At the trial court’s request, however, defendant’s attorney agreed to proceed with the pre-trial evidentiary hearing on the admissibility of defendant’s statement despite defendant’s absence. The State presented one witness — the officer whom defendant told where the stolen property was. The defense presented no witnesses, and the trial court ruled that defendant’s statement was admissible.

It was subsequently ascertained that defendant was in the hospital, and the sheriff brought him from the hospital to the courthouse for trial that afternoon. At trial, defendant testified that the officer told him he would not be charged with any offenses relating to the stolen property if defendant told the officer where it was.

In McGinnis v. State, 208 Ga. App. 354, 357 (4) (430 SE2d 618) (1993), we held that conducting a pre-trial evidentiary suppression hearing in the defendant’s absence, like conducting a trial in the defendant’s absence, constitutes prejudicial error. Moreover, the defendant’s right to be present at such a hearing can be waived by defense counsel only “if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel. [Cit.]” Id. at 357, 358. As none of these circumstances appear in the record in this case, defense counsel’s agreement to go forward in defendant’s absence is not binding on defendant, and defendant’s argument is meritorious.

Citing Byrd v. Ricketts, 233 Ga. 779 (213 SE2d 610) (1975), the State argues that defendant himself waived his right to be present because he was free on bond and voluntarily absented himself from the proceedings. Pretermitting consideration of whether defendant’s absence due to hospitalization was “voluntary,” we conclude the State’s reliance on Byrd and similar waiver cases is misplaced because in those cases the defendant was present when the trial began and subsequently failed to return after a recess. Here, on the other hand, defendant’s absence occurred before the trial began. “Prior to trial, a defendant’s failure to appear is handled with bench warrants and bond forfeitures. OCGA §§ 17-6-13; 17-6-70. During trial, a voluntary absence is treated as a waiver of the right of confrontation.” Pollard v. State, 175 Ga. App. 269, 270 (333 SE2d 152) (1985). Concluding that a hard and fast rule regarding when a voluntary absence constitutes a waiver was needed, we held in Pollard that the waiver principles set forth in Byrd and similar cases are inapplicable if the defendant’s absence occurs before jeopardy attaches. Id. Accord Loper v. State, 191 Ga. App. 515 (1) (382 SE2d 212) (1989). As the record clearly shows that defendant’s absence in this case occurred before the jury was sworn (and thus before jeopardy attached, see id.), there was no waiver under Pollard, and the trial court erred in proceeding to hold the Jackson-Denno hearing without defendant. See also Fictum v. State, 188 Ga. App. 348 (2a, b) (373 SE2d 54) (1988). Accordingly, this case is remanded to the trial court for another evidentiary hearing on the admissibility of defendant’s statement. See McGinnis, 208 Ga. App. at 358 (4).

Decided May 3, 1994.

E. W. Angelí, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

McMurray, P. J., and Smith, J., concur.


text:
    A94A1048.
    SUPER DISCOUNT MARKETS, INC. v. CLARK.
    (443 SE2d 876)
   Blackburn, Judge.

The appellee, Minnie Faye Clark, commenced this action against the defendant/appellant, Super Discount Markets, Inc., to recover for injuries allegedly sustained when she slipped (but did not fall) on some grapes on the defendant’s floor. The trial court denied the defendant’s motion for summary judgment, and this interlocutory appeal followed.

The record shows that at approximately 8:30 a.m. on April 9, 1992, the plaintiff slipped while she was shopping in the produce department of the defendant grocery store. The store manager had patrolled the premises after he arrived at the store between 7:00 a.m. and 7:30 a.m., and had found the floor to be clean. The produce manager had reported for work at 7:50 a.m., and inspected the floor in the produce section two times prior to the plaintiff’s slip, each time finding the floor to be clean. His last inspection took place only 15 to 20 minutes before the plaintiff slipped on the grapes. At the time of the slip, he was shelving produce, but his back was turned towards the area where the plaintiff slipped. Another customer corroborated the produce manager’s statement regarding his proximity to the scene of the slip, and pointed out that a produce bin obstructed the manager’s view of the floor.

The plaintiff acknowledged that prior to her slip, she was not distracted by any store employees, displays, lights, or sounds. After slipping, she looked down and was able to see the grapes from her standing position, but she would not admit that she could have seen the grapes had she looked down immediately before the slip.

To establish a proprietor’s liability for a slip and fall due to a foreign substance on the floor, the plaintiff must show that (1) the defendant proprietor had actual or constructive knowledge of the foreign substance, and (2) the plaintiff was without such knowledge or was prevented by the proprietor from discovering it. Horn v. Foodmax of Ga., 210 Ga. App. 506 (437 SE2d 336) (1993). It is uncontroverted that neither the plaintiff nor the defendant here had actual knowledge of the grapes on the floor. The issue in this case thus is whether the defendant even had constructive knowledge of the spilled grapes. Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (408 SE2d 443) (1991).

“When an action is based on constructive knowledge, to avoid summary judgment for the defendant, the plaintiff must establish a question of fact whether the foreign substance remained on the floor for a sufficient length of time for knowledge of it to be imputed to the proprietor, showing that he had an opportunity to discover the defect and correct it. [Cit.] This may be done by showing that employees of the proprietor were in the area and easily could have seen the hazard and corrected it, or by showing that the proprietor failed in his duty to exercise ordinary care in inspecting the premises to keep them safe. [Cit.]” Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992).

The evidence in this case provides no support for either basis of constructive knowledge. Specifically, the store manager inspected the floor a little more than one hour before the plaintiff’s slip, and the produce manager inspected the produce department’s floor twice during the forty-minute period preceding the slip. The last inspection occurred only 15 to 20 minutes before the incident. Under these circumstances, the defendant demonstrated its exercise of due care in inspecting the premises, and the plaintiff was unable to counter that showing. See Smith v. Winn-Dixie Atlanta, supra; Mallory v. Piggly Wiggly Southern, supra.

Decided May 3, 1994.

Drew, Eckl & Farnham, G. Randall Moody, Mary H. Hines, for appellant.

Harold D. Holcombe, for appellee.

The produce manager was in the general vicinity of the area where the plaintiff slipped, but it was undisputed that he was facing the opposite direction at the time. Also, a produce bin was situated between him and the area where the plaintiff slipped, and obstructed his view of the floor. Under these circumstances, it may not be said that the defendant’s employee could easily have seen the grapes on the floor so as to impute constructive knowledge. See Queen v. Kroger Co., 191 Ga. App. 249 (381 SE2d 413) (1989).

Inasmuch as (1) it was uncontroverted that the defendant had no actual knowledge of the grapes on the floor, and (2) the evidence failed to establish the defendant’s constructive knowledge of such, the defendant was entitled to summary judgment.

Judgment reversed.

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


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A1756.
    GREEN v. THE STATE.
    (444 SE2d 573)
   Smith, Judge.

Green entered negotiated pleas of guilty to the offenses of arson in the first degree, OCGA § 16-7-60 (a) (1), and secreting property to defraud another, OCGA § 16-9-53 (a). A third count charging possession of a firearm by a convicted felon, OCGA § 16-11-131 (b), was dismissed. He filed an amended motion for new trial in which he sought to withdraw his pleas on the basis that they were involuntary. That motion was properly treated as a motion to withdraw, Lawson v. State, 204 Ga. App. 796 (1) (420 SE2d 600) (1992), and was denied. Pursuant to permission granted by the trial court, Green brings this out-of-time appeal.

Error is enumerated in the denial of the motion to withdraw the pleas on the grounds that they were involuntary and were accepted without establishing on the record that the court was aware of the factual basis for them. On April 6, 1992, Green and his counsel appeared before the court to enter the pleas. A “petition to enter plea of guilty,” signed and subscribed to by defendant and certified by his counsel is contained in the record. The petition poses the question: “Did you commit the unlawful acts set forth in the charge or charges to which you want to plead guilty?” Green checked “yes” to this question. The petition questionnaire then asks: “Specifically what unlawful acts did you commit?” The reply: “Arson in 1st degree & secreting property to defraud another.” At the plea hearing, Green’s attorney stated: “Your Honor, Mr. Green and I have gone over the plea petition and he’s read it and he understands it and he’s already entered his plea of guilty.”

The court read the indictment aloud and inquired of Green if he understood the charges and allowable punishments and if he wished to enter guilty pleas to those charges. Green responded that he did. The court explained the rights to trial Green would relinquish by pleading guilty. He expressed his understanding and indicated his intention to waive those rights. He denied having been threatened, pressured or promised anything in exchange for his plea.

When asked on the record whether he wished to waive his rights to trial by pleading guilty, Green replied, “I would like to enter a plea of guilty, but I would like a correction in it.” His counsel explained that he “is asking for an Alford plea.” The court was advised of the State’s recommendation that Green serve five years plus ten years on probation. Green again acknowledged his understanding of the sentence. The State’s attorney explained that Green would be asked to testify against a co-defendant who was scheduled to be tried on the following day and requested that the court withhold sentencing until after he testified in that case. The court then asked Green what his plea was to the arson charge. He replied, “I guess I have to plead guilty, sir.” The court responded, “No sir, you don’t have to do anything. I’m asking whether you voluntarily of your own free will and accord are entering a plea of guilty to the charge of arson?” Green replied, “Yes,” and then entered a guilty plea to the charge of secreting property to defraud another. When again asked if the pleas were given “voluntarily and of [his] own free will,” Green replied, “Yes.” The following colloquy then occurred:

“THE COURT: Did you in fact commit these unlawful acts which you now wish to plead guilty?

“MR. GREEN: No.

“THE COURT: You did not?

“MR. GREEN: No sir.

“[GREEN’S COUNSEL]: Your honor, I believe under Alford . . . Mr. Green can plead guilty to these offenses and still maintain that he did not do it.

“THE COURT: Has your attorney explained that case to you which in essence says that even though you feel like you’re not guilty, there may be sufficient evidence for a jury to determine that you are guilty?

“MR. GREEN: Yes sir.

“THE COURT: Is that the provision you’re pleading guilty under?

“MR. GREEN: Yes sir.

“THE COURT: Let him enter his plea.”

The court accepted a plea of guilty to the two counts under the provisions of Alford, but withheld sentencing until later in the week.

Four days later, Green appeared before the court for sentencing. Green’s counsel acknowledged that the sentencing judge was “well aware of what’s occurred and Mr. Green is just truly sorry for what he’s gotten into and we just ask that you take that into consideration.” The State’s recommended sentence was imposed on the arson charge. The court also pronounced sentence of five years on the charge of secreting property to defraud another, and was ordered to pay restitution of $39,000 maximum, plus a surcharge and court costs.

Thereafter, the State’s attorney related: “Your honor, the only other remaining thing that needs to be done as far as Mr. Green’s part of this is, earlier in the week when the plea was initially, voluntariness of the plea was perfected, the plea was under . . . Alford. . . . This is a straight-up plea. Alford does not apply in this case and that’s been discussed between the Court and [defense counsel] and with Mr. Green.” Green’s counsel acknowledged, “That’s correct, Your Honor.” No response was elicited or received from defendant and no further discussion took place on the record.

Notwithstanding that nothing was shown on the record in the present case to establish how the elements of the crimes would be proved or that defendant was a knowing participant in either the arson or the offense of secreting property to defraud the Farmers Furniture Store, it is clear that a factual basis for the plea was already established without need for further inquiry by the trial court at sentencing. A valid and probing plea petition was filed by Green prior to the plea hearing, and the hearing itself confirmed that Green was well aware of the evidence against him when he entered the plea. Indeed, the court confirmed that Green understood that an Alford plea was only appropriate when the evidence indicates guilt, and the court initially accepted his plea on that basis. Subsequently a trial was held at which Green apparently was called as a State’s witness against a co-defendant. Only then was Green sentenced.

Green suggests no manifest injustice resulting from the denial of his motion to withdraw his guilty plea, and we find none. See USCR 33.12. We therefore find no error.

Judgments affirmed.

Pope, C. J., Birdsong, P. J., Andrews, Johnson, and Blackburn, JJ, concur. McMurray, P. J., Beasley, P. J., and Cooper, J., dissent.

Beasley, Presiding Judge,

dissenting.

The pleas were accepted without establishing on the record that the court was aware of a factual basis for them, so that it was error to deny defendant’s motion.

The court may not enter a judgment on a guilty plea “ ‘unless it is satisfied that there is a factual basis for the plea.’ ” Purvis v. Connell, 227 Ga. 764, 767 (182 SE2d 892) (1971). This has been mandated since Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). It is mirrored in USCR 33.9 which provides: “ [notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea,” that is, that the evidence that would be presented at trial would show the elements of the crime to which defendant was entering a plea of guilty. (Emphasis supplied.) Goodman v. Davis, 249 Ga. 11, 16 (2) (287 SE2d 26) (1982). The factual basis is crucial to the assurance of a valid plea. Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230) (1989). It is not necessary that a trial court affirmatively state on the record its satisfaction that there exists a factual basis for the guilty plea if the transcript presents evidence that the trial court was aware of the factual basis. Id. See also USCR 33.9. Accord Scurry v. State, 194 Ga. App. 165 (390 SE2d 255) (1990); Clark v. State, 186 Ga. App. 106, 107 (2) (366 SE2d 361) (1988); Brannon v. State, 176 Ga. App. 49 (2) (335 SE2d 163) (1985).

Nothing was shown in the present case to establish how the elements of the crimes would be proved or that defendant was a knowing participant in either the arson or the offense of secreting property to defraud the Farmers Furniture Store. The only reference on the record of the April 6 hearing with respect to the nature of the charges was the court’s recitation of the averments in the indictment, and its inquiry of defendant as to whether those are the charges to which he wishes to plead. All that appears at the April 10 sentencing, is the court’s inquiry concerning the balance of the mortgage owed on the property, to which defendant explained that his insurer paid the mortgage company $38,000 for the loss. The State provided no summarization of the operative facts to assure the court that there was indeed a factual basis for the plea. Compare Scurry, supra at 165; Clark, supra.

Decided April 1, 1994

Reconsideration denied May 4, 1994

Michael M. White, for appellant.

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

Defendant equivocated about guilt, and when asked by the court before the imposition of punishment whether he had anything to say, he replied: “Sir, I never would ever want it to happen. It just happened and I would, you know — could not, if I could have controlled it, I would have. I never believed it would happen.” Defendant’s remarks undermine the assurance of a factual basis for the plea. It was error to reject defendant’s motion to withdraw his plea of guilty to the indictment.

I am authorized to state that Presiding Judge McMurray and Judge Cooper join in this dissent.

       In North Carolina v. Alford, 400 U. S. 25, 37 (91 SC 160, 27 LE2d 162) (1970), the Court acknowledged that “[a]n individual accused of crime may voluntarily, knowingly, and understandably consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

       The final disposition reflecting the sentence of the court shows disposition only as to the arson count. No disposition is shown with respect to the second count.

       There is no indication in the record that the court conducted a restitution hearing or made specific written findings before conditioning probation upon restitution as required by OCGA §§ 17-14-8 through 17-14-10. See also Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709) (1980); Murphy v. State, 182 Ga. App. 791 (5) (357 SE2d 147) (1987). The failure to so comply has not been enumerated as error.

       The majority refers to an interim trial of a co-defendant, but he apparently was acquitted. None of this appears in the record.


text:
    A94A0038.
    TRICO INSURANCE AGENCIES, INC. v. SELECTIVE INSURANCE COMPANY OF AMERICA et al.
    (444 SE2d 119)
   Blackburn, Judge.

Appellant Trico Insurance Agencies, Inc. (Trico), an independent insurance agency, appeals the trial court’s award of summary judgment to appellees Selective Insurance Company of America (Selective), a multi-line, property and casualty carrier, and Donald McCarty, Selective’s vice president. On appeal, Trico asserts that questions of material fact preclude the award of summary judgment.

The underlying dispute arose due to Trico’s failure to make the required payments outlined in its $102,976.31 promissory note to Selective. Selective filed suit on the promissory note. In its answer, Trico denied liability on the note and asserted counterclaims alleging that Selective interfered with its contractual and business relationships and defamed its reputation. The trial court granted Selective’s motion for summary judgment and determined that Selective should recover the net principal amount of $42,644.17, pre-judgment interest, and attorney fees from Trico. Additionally, the trial court dismissed with prejudice Trico’s counterclaims.

1. Trico contends that issues of material fact exist regarding the amount owed Selective. Specifically, Trico argues that the affidavit produced by Selective’s senior vice president fails to establish facts upon which to determine the amount owed. The affiant avers: “I have reviewed Selective’s records to determine the amount owed by Trico on the Note. As of the date the Complaint was filed in this action, April 17, 1991, the unpaid principal balance under the Note was $43,244.96. Since that date, the net activity on Trico’s account has resulted in an additional credit to Trico in the amount of $600.82. Accrued but unpaid interest under the Note as of February 18, 1993 equals $9,942.00. Accordingly, the total amount owed by Trico under the Note as of February 18, 1993 in unpaid principal and accrued interest equals $52,586.14. Interest continues to accrue on the unpaid principal balance of the Note at the rate of 10% per annum. I have prepared a summary of Trico’s indebtedness to Selective under the Note which is attached hereto as Exhibit ‘G.’ ” The specific underlying documents or accounts which the affiant reviewed to determine these conclusions were not referenced or attached to the affidavit.

On motion for summary judgment, Selective was required to produce evidence conclusively establishing that no issue of material fact remained and that it was entitled to judgment as a matter of law. Fortier v. Jordan’s Jewelers, 208 Ga. App. 527 (2) (430 SE2d 829) (1993). This burden is not met by conclusory affidavits. Carlos Jones Constr. Co. v. Fed. Deposit Ins. Corp., 169 Ga. App. 899, 900 (315 SE2d 458) (1984). “Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient. [Cit.]” Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473, 474 (388 SE2d 69) (1989). See also Taquechel v. Chattahoochee Bank, 260 Ga. 755 (2) (400 SE2d 8) (1991). Therefore, Selective failed to meet its burden as movant for summary judgment and the trial court erred in granting Selective’s motion with regard to the amount owed between Selective and Trico.

2. Next Trico asserts that the trial court erred in granting Selective’s motion for summary judgment with regard to Trico’s counterclaims. Trico maintains that as a result of Selective’s decision to terminate the agency agreement executed between the parties, the parties entered into a termination agreement which set forth certain conditions of termination. Trico asserts that the termination agreement is evidenced through several letters between the companies discussing the termination of their contractual relationship.

Decided May 4, 1994.

Roberts, Isaf & Summers, W. Dennis Summers, Deena S. Woodall, for appellant.

Bisbee, Rickersen & Herzog, Richard B. Herzog, J. Robert Williamson, for appellees.

Trico’s counterclaims premised on the existence of a termination agreement must fail. The agency agreement entered by the parties on October 1, 1988, provided that it was terminable by either party by giving at least 90 days’ written notice to the other party. Written notice of termination was effective immediately in certain listed situations. The agency agreement further provided that no alterations or waivers were effective unless made in writing, signed by an authorized representative of both Selective and Trico, and attached to the agreement. Therefore, as Selective had the right to terminate the agency agreement, any subsequent termination agreement required consideration. Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 681 (305 SE2d 361) (1983). Trico’s inability to establish consideration for the termination agreement is fatal to its counterclaims. Therefore, the trial court correctly granted Selective’s motion for summary judgment on Trico’s counterclaims.

3. We have reviewed Trico’s additional claims and found them to be without merit.

Judgment affirmed in part and reversed in part.

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


author: Birdsong, Presiding Judge.

text:
    A94A0885.
    PALMORE v. THE STATE.
    (444 SE2d 581)
   Birdsong, Presiding Judge.

Kenneth Palmore appeals from the order of the trial court denying his motion for new trial; appellant was found guilty of armed robbery. He enumerates two errors. Held:

1. Appellant asserts that the trial court erred in denying the motion for new trial on the ground that the charge to the jury was unconstitutionally burden shifting. Specifically, citing, inter alia, OCGA § 5-5-24 (b), appellant maintains that it was reversible error to charge the jury in a preliminary instruction as to presumption of innocence, burden of proof, reasonable doubt, conflict in testimony, and definition of a crime without recharging on those principles after completion of closing argument.

Decided May 4, 1994.

Johnny B. Mostiler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

When the trial court inquired if counsel had any objections to the charge, appellant’s counsel affirmatively stated there was none, and did not reserve the right to object to the charge on motion for new trial or on appeal. See generally McCoy v. State, 262 Ga. 699, 701 (2) (425 SE2d 646). Accordingly, appellant waived any appellate claim of charging error. Anderson v. State, 262 Ga. 331, 332 (2) (418 SE2d 39).

2. Appellant also asserts that the trial court erred in refusing to grant the motion for new trial on the general grounds. This contention is without merit. Appellant has failed to carry his appellate burden, within the meaning of Robinson v. State, 229 Ga. 14, 15 (1) (189 SE2d 53), to show error which has harmed him. See Division 1 above. 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. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Two employees of Del Taco made pre-trial photographic and in-court identifications of appellant as the perpetrator of the averred armed robbery, and testified that appellant committed the robbery using a handgun. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Where, as here, there exists the requisite evidence to support the verdict within the meaning of Jackson v. Virginia, supra, and no reversible error otherwise has been committed, the verdict will stand. Cf. Bill Jones Motors v. Mitchell, 100 Ga. App. 185, 188 (110 SE2d 555); compare Rogers v. State, 101 Ga. 561, 563 (28 SE 978).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0977.
    McMILLAN et al. v. GAY et al.
    (444 SE2d 117)
   Blackburn, Judge.

The appellants, Millen Fish Company (Millen), and its president, David McMillan, brought the instant action for damages against appellees Carroll Gay, Jr., and Truck Aid Insurance Agency (Truck Aid), Gay’s insurance agency, based upon Gay and Truck Aid’s alleged negligence in failing to procure adequate insurance coverage as requested on one of Millen’s vehicles. After the commencement of discovery, Gay and Truck Aid moved for summary judgment, and the motion was granted by the trial court based upon McMillan’s failure to read both the insurance application and the policy. This appeal followed. In their sole enumeration of error, McMillan and Millen maintain that summary adjudication was precluded based upon the evidence in the record as a matter of law.

Viewing all the facts and inferences from those facts in the light most favorable to McMillan and Millen, the non-moving parties, the record shows that Millen was a family-owned corporation in the business of distributing seafood. Since 1987, the corporation maintained liability, collision, and comprehensive insurance coverage on its fleet of refrigerated trucks with Georgia Farm Bureau through a local agent. In October 1990, McMillan was notified by Georgia Farm Bureau that as of April 1991, the date of the renewal of Millen’s fleet policy with the company, Georgia Farm Bureau planned to exclude from coverage a vehicle operated by Larry Wentzel, one of Millen’s employees, because of Wentzel’s numerous traffic violations.

Approximately three months later, the local agent informed McMillan that Truck Aid had the most competitive price for coverage on the subject vehicle and contacted Gay to suggest that he provide coverage on the vehicle. He also informed Gay of the present coverage on the vehicle. In the interim, McMillan contacted other agencies for quotations on the desired coverage, and because Truck Aid’s rates were lower than the rates quoted by other agencies, McMillan told Gay to complete a binder for coverage with Canal Insurance Company through Truck Aid. At that time, the parties did not discuss the specific type of coverage to be provided under the policy.

Thereafter, Gay met McMillan at the fish company and McMillan signed the application for the insurance coverage with Canal Insurance Company. It is undisputed that McMillan did not read the entire application although a copy of the application was given to him at the meeting. McMillan maintains that Gay informed him at the meeting that the coverage requested in the application was the same coverage that had been provided by Georgia Farm Bureau. McMillan did read the caption of the application which read “Jimmy Stringer Company Commercial Vehicle Application, Liability and Physical Damage Insurance.” However, McMillan did not read the portion of the application which provided that “This application is for X Liability -Property Damage,” which indicated that the binder was for liability insurance coverage only.

The insurance policy was subsequently delivered to Millen on May 31, 1991, and provided liability coverage on the subject vehicle based upon the information contained in the application. It is undisputed that McMillan did not read the policy prior to June 4,1991. On that date, the insured vehicle was totally destroyed as a result of a collision while being operated by Wentzel.

Decided May 4, 1994.

Edenfield, Stone & Cox, E. Lee Davis, for appellants.

Fulcher, Hagler, Reed, Hanks & Harper, David H. Hanks, Sharon R. Blair, R. H. Reeves III, for appellees.

“ ‘Generally speaking, an insurance agent who undertakes to procure a policy of insurance for his principal but negligently fails to do so may be held liable to the principal for any resulting loss. (Cits.) However, where the agent does procure the requested policy and the insured fails to read it to determine which particular risks are covered and which are excluded, the agent is thereby insulated from liability, even though he may have undertaken to obtain “full coverage.” ’ [Cits.]” Atlanta Women’s Club v. Washburne, 207 Ga. App. 3, 4 (427 SE2d 18) (1992). Inasmuch as McMillan failed to read the application and the policy provisions to determine what type coverage was provided on the subject vehicle, any action against Gay and Truck Aid based upon negligent procurement is barred, and summary adjudication was appropriate. See also England v. Georgia-Florida Co., 198 Ga. App. 704 (1) (402 SE2d 783) (1991).

McMillan and Millen’s reliance on the Supreme Court’s decision in Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974), is misplaced because McMillan did not rely on Gay’s expert discretion to identify and procure the correct amount or type of insurance coverage, unlike the plaintiff therein. In fact, McMillan independently inquired about coverage with other insurance agencies before finally deciding to obtain coverage with Canal Insurance Company through Gay. Accordingly, the trial court did not err in granting summary judgment in favor of Gay and his insurance agency.

Judgment affirmed.

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


text:
    A94A0987.
    SIMPSON v. THE STATE.
    (444 SE2d 115)
   Blackburn, Judge.

Appellant, Mitchell Simpson, was convicted under OCGA § 16-11-131 of two counts of possession of a firearm by a convicted felon brought under separate indictments. On appeal, Simpson contends the trial court erred in denying his motion for a directed verdict of acquittal, admitting a copy of a pawn ticket into evidence, and instructing the jury on constructive possession.

1. OCGA § 16-11-131 (b) provides in part: “Any person . . . who has been convicted of a felony by a court of this state . . . and who . . . possesses . . . any firearm commits a felony.” Simpson does not dispute that on March 28, 1986, he was convicted of a felony violation of the Georgia Controlled Substances Act. Rather, Simpson moved for directed verdict of acquittal stating that the State failed to prove that he had actual possession of the two firearms alleged in the indictments.

One indictment alleged Simpson’s possession of a .12 gauge shotgun on July 10 and August 24, 1992. At trial, Roy White testified that on July 10, 1992, Simpson completed and signed the required paperwork and redeemed the shotgun from his pawnshop. White further testified that on August 24, 1992, Simpson pawned the shotgun and signed a pawn ticket, representing that the gun belonged to him. On cross-examination, he could not remember whether anyone accompanied Simpson on August 24, 1992, or whether Simpson himself handled the gun on either occasion. However, he did testify that it is his normal redemption procedure to give an item to whomever redeems it and that on July 10, 1992, Simpson had redeemed the shotgun.

Simpson’s brother testified that he had kept the shotgun in question at his residence until July 1992, when Simpson called him and told him to meet him at the pawnshop with the gun. Simpson’s brother testified that he took the gun to the pawnshop as instructed, laid it on the counter, and that Simpson pawned it. He further testified that he did not recall ever returning to the pawnshop with Simpson and specifically stated he never went to the pawnshop with Simpson to get the gun out of pawn. Simpson himself, however, testified that he had pawned the shotgun several times while it was kept by his brother and that each time the gun was pawned or redeemed, his brother would transport it to and from the pawnshop.

“ ‘ “A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary.” ’ ” Mathis v. State, 204 Ga. App. 896, 898 (1) (420 SE2d 788) (1992). In the instant case, there was evidence from which the jury was authorized to find that Simpson possessed the shotgun, and the trial court properly denied the motion for directed verdict with regard to that count.

We reject Simpson’s contention that the evidence was insufficient because it failed to establish his actual possession of the shotgun. “The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Citations and punctuation omitted.) Ancrum v. State, 197 Ga. App. 819, 822 (2) (399 SE2d 574) (1990). The evidence in this case showed that Simpson exercised dominion and control over the shotgun even if his brother participated in the pawn transactions.

The second indictment charged Simpson with possession of a nine millimeter pistol on February 10, 1993. At trial, Scott Taylor testified that on that date Simpson signed the necessary paperwork and pawned the pistol at his pawnshop. Taylor specifically testified that Simpson handed him the firearm. This evidence alone was sufficient to submit the question of possession to the jury, and therefore, the trial court properly denied Simpson’s motion for directed verdict of acquittal regarding this count. “ ‘If there is any evidence of guilt such that an acquittal is not demanded as a matter of law, it is for the jury to decide the case.’ ” Parrish v. State, 182 Ga. App. 247, 249 (5) (355 SE2d 682) (1987).

Viewed in the light most favorable to uphold the jury’s verdict, we find the evidence sufficient to authorize any rational trier of fact to find Simpson guilty beyond a reasonable doubt as charged in the two indictments. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Simpson next contends that the trial court erred by admitting into evidence a copy of the pawn ticket from the August 24, 1992, pawn of the shotgun. Specifically, Simpson contends that the pawn ticket, as purposely altered by the trial court, prejudiced the jury because it was apparent that portions of the exhibit had been redacted. This contention is without merit.

At trial, at the recommendation of the prosecuting attorney, the judge, in an effort to preserve justice and protect the due process rights of the appellant, ordered that portions of the pawn ticket be redacted so as to eliminate any reference to “triple beam scales” that Simpson also pawned at the pawnshop. This action by the trial judge was commendable and proper. The pawn ticket was properly admissible as evidence of Simpson’s ownership and possession of the shotgun on the date in question, but it was proper to delete the reference to the triple beam scales in order to minimize any prejudicial inference that Simpson was involved in other criminal activity. See Sessions v. State, 207 Ga. App. 609, 610 (428 SE2d 652) (1993). Review of the subject exhibit reveals that, without comparing it to the unredacted original, it would be virtually impossible to detect that the document had been altered in any way.

3. Simpson contends that the trial court’s jury charge on constructive possession was unauthorized by OCGA § 16-11-131, which does not address alternative types of possession. However, this court has previously held that constructive possession is sufficient to prove a violation of the subject offense. See Cantrell v. State, 204 Ga. App. 330, 331-332 (419 SE2d 141) (1992); Hamilton v. State, 179 Ga. App. 434, 435 (1) (346 SE2d 881) (1986). Accordingly, the trial court did not err in instructing the jury on constructive possession.

Decided May 4, 1994.

Starling & Starling, Melissa J. Starling, for appellant.

H. Donnie Dixon, Jr., District Attorney, Brenda L. Mullís, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A0368.
    MARTIN v. THE STATE.
    (444 SE2d 103)
   Pope, Chief Judge.

Defendant was convicted by a jury of armed robbery (OCGA § 16-8-41) and several traffic offenses not at issue here. In his sole enumeration of error, he contends the trial court erred in refusing his request to charge the jury on the lesser included offense of robbery (OCGA § 16-8-40).

Evidence at trial showed that defendant was driving around in his car with five friends when they decided to commit a robbery. They first discussed robbing a liquor store but decided not to because they did not have a weapon and they knew that most liquor store owners keep a weapon handy behind their counters. Defendant and his friends then decided to rob a bakery. Defendant parked his car in an apartment complex behind the bakery and he and a female friend waited in the car while the four others went into the bakery to commit the robbery. During the course of the robbery, one of the four saw a butcher knife on a counter, picked it up and used it to threaten the shop owner and his wife. He left the knife in the shop when the robbers left, and when they returned to defendant’s car no one said anything about the use of the knife.

Defendant recognizes that “[i]n this state, a defendant can be convicted of armed robbery even though he might not have had knowledge that his accomplice was going to use a weapon to perpetrate it, so long as it can be found that use of the weapon by the accomplice was naturally or necessarily done in furtherance of the conspiracy to commit the robbery even though not part of the original agreement. [Cit.]” Crawford v. State, 210 Ga. App. 36, 38 (1) (435 SE2d 64) (1993). Nonetheless, defendant argues that the jury could have found that the accomplice’s use of a knife he happened to see lying on the counter was not naturally or necessarily done in furtherance of the conspiracy under the circumstances of this case, in which case it could have found defendant guilty of simple robbery rather than armed robbery. We agree with defendant that an accomplice’s use of a weapon, thereby escalating the crime from robbery to armed robbery, is not “naturally or necessarily done in furtherance of the conspiracy to commit robbery” as a matter of law under all circumstances. Indeed, as it appears defendant and his co-conspirators discussed the fact that none of them had a weapon prior to the commission of the crime, this case provides a good example of a situation in which the jury could have found that the accomplice’s use of the weapon was not natural, necessary or foreseeable.

However, it does not necessarily follow from this conclusion that an instruction on simple robbery would have been appropriate. Any crime, including robbery and armed robbery, involves the joint operation of an act prohibited by statute and an intent to commit the prohibited act (or, as noted above, an intent to commit an act which naturally or necessarily evolved into the prohibited act committed). See OCGA § 16-2-1. Here, it is undisputed that although defendant may have intended simple robbery, no act of simple robbery occurred. Thus, defendant could not be guilty of robbery even if his version of the facts — that he intended only robbery and that the use of the weapon was not naturally or necessarily done in furtherance of the conspiracy to commit robbery — is believed. See Williams v. State, 191 Ga. App. 913, 915 (4) (383 SE2d 344) (1989) (lesser included offense of robbery need not be charged where uncontroverted evidence showed completion of offense of armed robbery). Accordingly, the defendant’s request to charge was not authorized by the evidence and the trial court did not err in denying it. It is arguable that if the jury accepted defendant’s version of the facts, it could have found him guilty of conspiracy to commit robbery as a lesser included offense. See Scott v. State, 229 Ga. 541 (1) (192 SE2d 367) (1972) (conspiracy may be charged as separate offense where planned crime was not in fact committed). However, defendant did not request a charge on conspiracy to commit robbery. See State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976) (failure to charge on lesser included offense without written request is not error).

The jury, having been properly charged that defendant was responsible for the acts of his accomplices “only insofar as such acts are naturally or necessarily done in furtherance of a conspiracy,” found defendant guilty of armed robbery. The trial court did not err in refusing to charge on robbery because there was no evidence that a robbery occurred and it did not err in failing to charge on conspiracy to commit robbery because such a charge was not requested.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Decided April 13, 1994

Reconsideration denied May 5, 1994

Cauthorn & Phillips, Thomas E. Cauthorn III, for appellant.

Thomas J. Charron, District Attorney, Don T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


author: Beasley, Presiding Judge.

text:
    A94A0166.
    FEDERATED MUTUAL INSURANCE COMPANY v. DUNTON.
    (444 SE2d 123)
   Beasley, Presiding Judge.

Defendant/third-party plaintiff Dunton, while operating a truck owned by his employer, Symbolet Corporation, was involved in a collision with a vehicle operated by plaintiff Conkling. Before the collision, Dunton had asked his employer about coverage on the truck, was told it was covered, and was shown the insurance card. Conkling and his insurance company sued Dunton and Symbolet. Symbolet has declared bankruptcy, had no insurance in effect at the time of the collision, and the corporation’s principal cannot be located. Dunton looked to his personal automobile insurer for liability coverage and defense. He was informed that the insurer did not consider itself obligated because of a clause in the insurance contract that excluded coverage for the insured using a vehicle while “employed or otherwise engaged in any ‘business.’ ” Dunton rejected this position and named Federated Mutual as a third-party defendant in the suit. The denial of Federated’s motion for summary judgment is the subject of this appeal, which we permitted.

Federated enumerates two errors: 1) the trial court’s conclusion that Federated had a duty to defend, and 2) the trial court’s conclusion that the exclusion clause violated Georgia’s public policy. Because Federated’s arguments that it had no duty to defend rest upon the exclusion clause, we first examine whether the clause violates public policy.

1. The argument that an automobile insurance policy’s exclusions might offend public policy “stem[s] from the legislature’s enactment of the mandatory insurance statute.” Stepho v. Allstate Ins. Co., 259 Ga. 475, 476 (1) (383 SE2d 887) (1989). See OCGA §§ 33-34-4; 40-9-34 (2); 40-9-37. The statute has the dual purpose of protecting both “the innocent victims of the negligent members of the motoring public [cit.] . . . [and] the insured from unfair exposure to unanticipated liability.” Stepho, supra at 476 (1). Each exclusion “must be individually evaluated to determine whether [it is] against public policy. [Cit.]” Southern Guaranty Ins. Co. v. Federated Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987). The question is “whether in the context of [each] case the exclusion either unfairly penalizes innocent victims or unfairly exposes the insured to liability.” Id. “This results in a basic rule that if either of the interests dealt with ... is left unprotected, the exclusionary clause in the insurance contract offends public policy. This rule, of course, does not apply when neither the injured party nor the unsuspecting insured is left unprotected.” Stepho, supra at 476 (1).

In this case, both the interests implicated are unprotected. Conk-ling cannot be compensated by Symbolet and is now forced to look to Dunton and his insurer for compensation. Dunton is exposed to unanticipated liability; he reasonably expected that his employer’s insurance would cover his actions. Given the investigation he undertook before driving his employer’s vehicle, his exposure to liability must be considered unfair.

To give effect to the exclusionary clause would result in no insurance fund available to cover Dunton’s or Symbolet’s liability to Conk-ling. This case differs from those which have found exclusionary clauses valid when there are additional funds which could protect the injured party. See Stepho, supra at 476-477 (1); Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 341 (1) (329 SE2d 136) (1985); Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983); Dairyland Ins. Co. v. Blaylock, 193 Ga. App. 175, 177 (2) (387 SE2d 405) (1989). Compare Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692 (353 SE2d 186) (1987); Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989).

Federated points to Kilgore v. Southern Gen. Ins. Co., 210 Ga. App. 434 (436 SE2d 547) (1993), for the proposition that public policy is only concerned with the owners of vehicles: “ ‘the onus to procure insurance is put on the owner and others are prohibited from operating the vehicle until that is done.’ [Cit.] The owner’s failure to meet that burden in the instant case does not justify finding a violation of public policy in order to protect an injured party against such a failure.” (Emphasis supplied.) Id. at 436 (3). Kilgore by its very language limits itself to its specific facts, as is appropriate in examining an exclusionary clause. See Southern Guaranty, supra at 356. Kilgore did not deal with a business exclusion clause. The owner of a tractor used for towing lent the tractor to another who towed a trailer not “like-insured” as required by the policy covering the tractor. Id. at 434 (1). The borrower of the tractor had a policy limiting his coverage to his own tractor, which he could not use at the time. Id. at 436 (4).

There is a primary distinction between Kilgore and this case. The insureds in Kilgore had notice (actually or constructively) at the beginning of the trip ending in collision that their actions violated the terms of their policies. Dunton had inquired of his employer, was told that insurance would cover his actions, and was shown an insurance card. Dunton is an insured unfairly exposed to unanticipated liability, unlike the insureds in Kilgore.

Applying the principle that each case examining whether an exclusionary clause violates public policy must be determined on its own facts, Southern Guaranty, supra at 356, the exclusionary clause in this instance violates public policy. Because public policy has express limitations, however, the exclusionary clause is void only to the extent of the mandatory monetary requirements in effect at the time of the collision. See Stepho, supra at 477 (2). The trial court’s denial of summary judgment was correct, within the statutory limits.

2. Although void within the statutory requirements, the exclusionary clause may still affect liability above the minimum amounts.

The clause upon which Federated relies reads: “A. We do not provide Liability Coverage for any person: ... 7. Maintaining or using any vehicle while that person is employed or otherwise engaged in any ‘business’ (other than farming or ranching) not described in Exclusion A.6. This exclusion (A.7) does not apply to the maintenance or use of a: a. private passenger auto; b. pickup or van that you own; or c. ‘trailer’ used with a vehicle described in a. or b. above.”

Dunton argues that he was hired as a welder, was driving the truck that was involved in the collision only because his employer told him to go for some supplies, and was not engaged in his “usual primary or regular occupation” at the time of the collision. This, he maintains, makes the language of the “business” exclusion ambiguous under State Farm Mut. Auto. Ins. Co. v. Seeba, 209 Ga. App. 328 (433 SE2d 414) (1993).

The exclusionary clause in this case differs significantly from the “car business” clause in Seeba. Id. at 329. Here, the clause was broader, specifically excluding coverage while “employed or otherwise engaged in any ‘business’ (other than farming or ranching) not described in [the preceding clause].”

Decided May 5, 1994.

Alston & Bird, Gerald L. Mize, Jr., Lori G. Baer, for appellant.

Kenneth C. Pollock, Edward M. Harris, Jr., for appellee.

It is undisputed that Dunton was employed by Symbolet and was driving a vehicle in furtherance of Symbolet’s business when the collision occurred. There is no ambiguity.

The award of summary judgment is affirmed, to the extent of the statutorily determined monetary limits.

Judgment affirmed in part and reversed in part.

Andrews and Johnson, JJ., concur.

       Competent evidence as to Symbolet’s insurance and bankruptcy status was not before the trial court, although Dunton had requested a continuance under OCGA § 9-11-56 (f) to secure the evidence. Denial of the motion rendered the request for continuance moot.

       There are certain exceptions not applicable here.

       The record does not reveal any other fund from which compensation to Conkling could be supplied.

       The Supreme Court specifically left open the question of whether the statutory limitation would apply in a case where the interest protected is that of the insured. As noted above, this case implicates the interest of both the victim and the insured. Regardless, we see no reason to extend the public policy concerns beyond the monetary limits set by the legislature.


text:
    A94A0950.
    SIMS v. THE STATE.
    (444 SE2d 121)
   Birdsong, Presiding Judge.

Ronnie Lee Sims was tried before a jury and found guilty of possessing 11.5 grams of cocaine with the intent to distribute. He appeals the judgment and sentence. Held:

1. Pursuant to a consensual search of appellant’s vehicle, police discovered a purple felt Crown Royal bag, containing three black plastic film canisters. Inside these vials were plastic bags containing 53 rocks of crack cocaine, additional larger chunks of crack, and one-half gram of powdered cocaine. Appellant objected to chain of custody; however, these vials and the cocaine were admitted into evidence and this evidentiary ruling is enumerated as error.

“Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence as that seized and show that there has been no tampering or substitution. [Cit.] The circumstances must establish reasonable assurance of the identity of the substance. [Cit.]” Staples v. State, 209 Ga. App. 802, 805 (5) (434 SE2d 757). Here, the investigating officer inventoried three black plastic vials and identified them as the State’s exhibits by the letters “A,” “B,” and “C,” which he had carved on them. He placed the vials and the purple felt bag inside a paper bag and stapled it. This stapled paper bag was placed in the evidence room of the Oconee County Sheriff’s Department, for which there was only one key. This bag was subsequently placed in a sealed evidence envelope and sent by certified mail to the State Crime Lab in Atlanta. The forensic chemist from the crime lab testified as to the procedures employed to assign a unique identity number to all samples received for drug testing. This witness stated that, when it was removed from the evidence locker, the envelope containing the vials of suspected cocaine was still sealed and bore no indication of tampering.

In establishing the chain of custody, the State is not required to show that the substance was guarded every minute. Williams v. State, 153 Ga. App. 421, 422 (3) (265 SE2d 341). In light of steps taken in accordance with established procedures for preserving the chain of custody, and in the absence of any physical manifestation of tampering or improper attempts to open and reseal the exhibits, it appears to a reasonable certainty that the vials of cocaine submitted at trial were the same ones seized from appellant’s car. Brinson v. State, 208 Ga. App. 556, 557 (2) (430 SE2d 875).

2. In narrating the events after the seizure of the cocaine from appellant’s car, an investigating officer testified that appellant was formally arrested and given his Miranda warnings. After being photographed and processed at the Oconee County Jail, appellant was given a second Miranda warning and he signed a form stating that he understood his rights. This officer continued: “[Appellant] said nothing — he refused to make a statement.” Appellant moved for a mistrial, claiming that the State had elicited improper comment on his election to remain silent after having been cautioned of his rights. Although this motion was denied, the trial court gave immediate curative instructions to the jury. Appellant renewed his motion and enumerates as error the denial of his motion for mistrial on the ground of improper reference to his post-arrest post -Miranda silence.

“Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. [Cit.]” Reid v. State, 129 Ga. App. 660, 664 (5) (200 SE2d 456). “Improper reference to a defendant’s silence, however, does not automatically require reversal. [Cits.]” Hill v. State, 250 Ga. 277, 283 (4a) (295 SE2d 518). Here, the trial court promptly gave curative instructions on the State’s unalterable burden of proof and the right of the accused to keep silent, and unambiguously instructed the jury that they were not permitted to draw any adverse inference from the fact the accused has asserted his right to silence. Moreover, it appears that the comment objected to was inadvertent and unresponsive on the part of the witness, and was not an intentional reference by the prosecution to the silence of the defendant where an innocent man would protest his innocence. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion for mistrial. Davis v. State, 157 Ga. App. 290 (277 SE2d 286).

Decided May 5, 1994.

Kimberly C. Harris, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

3. Appellant enumerates the general grounds, contending that the evidence was insufficient to authorize a finding of intent to distribute.

Viewed in the light to uphold the verdict of guilt, the evidence showed that appellant left work with 11.5 grams of cocaine in his immediate possession. The 53 rocks of crack cocaine and one-half gram of powder were packaged as if for resale. Appellant’s admitted destination was an address other than his own. “ ‘To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession. [Cit.]’ [Cit.] In the case sub judice, the evidence shows that the cocaine was divided [among several containers and in differing forms and amounts]. This manner of packaging being commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that [appellant] possessed cocaine with intent to distribute. [Cit.] The evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539). The enumeration of the general grounds is without merit.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A92A1715.
    THE STATE v. TATE.
    (445 SE2d 576)
    Decided May 6, 1994.

      Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellant.
   Beasley, Presiding Judge.

In State v. Tate, 208 Ga. App. 117 (430 SE2d 9) (1993), we reversed the trial court’s grant of Tate’s motion to suppress. The Supreme Court granted certiorari and reversed our decision. Tate v. State, 264 Ga. 53 (440 SE2d 646) (1994). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Hesmer & Manning, John R. Hesmer, Jane P. Manning, for appellee.


text:
    A94A0355.
    GOLD KIST, INC. v. WILSON et al.
    (444 SE2d 338)
   Birdsong, Presiding Judge.

Gold Kist, Inc., a non-profit agricultural cooperative under Georgia Cooperative Marketing Act (OCGA § 2-10-80 et seq.), appeals from the grant of summary judgment on liability to Renade Wilson, Alfred Thomas, Ned Hendrix, F. L. Murray, Jr., R. Neil Hampton, David Moody, Donald Morrison, James Crews, Melvin Wilson, Win-ton Wilson, Kenny Crews, H. J. Murray, and Jimmy Thomas, members of the cooperative and producers of eggs or pullets, on their claims against Gold Kist. Gold Kist and appellees were engaged in an enterprise to produce table eggs for sale.

Under their agreements, Gold Kist provided appellees with chicks or pullets, feeds, vaccines, medicines, disinfectants and other supplies. Gold Kist maintains that these items were provided at no cost, but appellees contend their contracts with Gold Kist provided that charges for these items were to be offset against the money due from Gold Kist on the sale of their eggs or pullets. Appellees, in return, provided proper facilities and labor to raise the chickens or produce the eggs. Appellees were paid weekly advances and at the end of the year also received allocations and distributions from Gold Kist’s profits.

The parties apparently operated without significant dispute until 1989 when Gold Kist sold to a private concern the egg producing facility to which appellees supplied chickens or eggs and assigned the production agreements with appellees to the private company. As a result of these assignments, Gold Kist received about $400,000 from the private concern. Following the assignment of the contracts, most appellees resigned from Gold Kist and received reduced payments of their equity accounts in the cooperative.

Subsequently, appellees sued Gold Kist for breach of oral contracts and for fraud based upon alleged misrepresentations by Gold Kist’s representatives that Gold Kist would remain in the egg business indefinitely or until appellees were debt free; for the full amount of their equity in Gold Kist; for the amount of equity they would have received if Gold Kist had not left the egg business; for breach of Crews’ production agreement (individual claim); for reimbursement for unnecessary equipment by Meeks; and for failure to return the proceeds from the sale of eggs or pullets.

The dispute between the parties centers on appellees’ entitle-merits under the Gold Kist membership agreement and the production agreements and whether it was the practice of the parties to deviate from the agreements.

The parties moved for partial summary judgment. The trial court denied Gold Kist’s motion but granted appellees’ motion. The trial court’s order stated: “Plaintiffs are entitled to recover from defendants an amount equal to the gross proceeds of the sale of pullets, eggs and/or spent hens (as may be applicable to each plaintiff) less any advances and proper charges against each plaintiff as may be authorized by the contracts entered into between each of the plaintiffs and the defendant.” The trial court then ordered the defendant to “file within thirty days from the date this order is filed, a complete accounting for each plaintiff, including therein an itemization of the gross sale amount for pullets, eggs, and/or spent hens (as may be applicable) and all advances, feed charges, supplies, medications, and any other relevant and permissible charges as may be authorized by said contracts.”

Gold Kist asserts that appellees are not entitled to the profits made from the sale of eggs or chickens, or to an accounting, that an alleged oral promise to “stay in business” is neither enforceable nor admissible, that appellees are not entitled to the full amount of their notified equity, that appellees are not entitled to receive equity allocations for the time after Gold Kist sold its egg and pullet operations, that Gold Kist did not breach its contract with appellee James Crews, and that appellee F. L. Murray, Jr., as a matter of law, fails to state a claim against Gold Kist. Held:

1. The first enumeration of error contends the trial court erred by granting partial summary judgment to appellees on their claim under Count 8 of the complaint. Gold Kist argues that, as a matter of law, appellees are not entitled to all the profits made from the sale of the eggs, pullets, or spent hens because appellees’ claims to the proceeds from the sale of these items are barred by the cooperative’s membership agreement, its by-laws, and by the production agreements between the parties; the claims are barred because of the course of dealing between the parties; and appellees’ claims are barred by the statute of limitation.

Review of the sale and production agreements between the parties show that they are internally ambiguous and are also ambiguous when read in conjunction with the Gold Kist membership agreement and Gold Kist’s by-laws. See Walton v. Datry, 185 Ga. App. 88, 94 (363 SE2d 295). In particular, the production agreements in several places state that Gold Kist will market the products for the producers, yet in other places provide that Gold Kist will take title to the products. Further, the method of payment to the producers provided in the production agreements appear inconsistent with the statements in the production agreements that the products will be marketed for the producers. Although perhaps implicitly resolving these ambiguities, the trial court’s order does not state how the contracts were construed to eliminate the ambiguities, and, more significantly, based upon the agreements and the evidence in record, it does not appear that these ambiguities can be resolved without consideration of evidence by a factfinder. See OCGA §§ 13-2-1; 13-2-2; 13-2-3; Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196). Under the evidence of record, we find, therefore, that issues of fact remain on whether Gold Kist is liable, and if so to what extent, under the production agreements, the membership agreements, and Gold Kist’s bylaws. Further, while it appears that the statute of limitation may bar some of appellees’ claims, this issue cannot be determined at this point as a matter of law because of the factual differences between the claims, the confidential relationship between the parties, and the allegations of fraud. Accordingly, as issues of fact remain and as it cannot be said that appellees are entitled to judgment as a matter of law (see OCGA § 9-11-56 (c)), the trial court erred by granting summary judgment to appellees on this claim. For the same reasons, we do not find that the trial court erred by denying summary judgment to Gold Kist on this issue.

2. The remaining enumerations of error contend the trial court erred by denying Gold Kist’s motion for summary judgment on various other counts of appellees’ complaint. In general, the issues concern the enforceability of oral promises, claims of fraud, and appellees’ entitlement to distribution of equity under the agreements which governed their relationships with Gold Kist as members of the cooperative and as producers. Because of the ambiguities within and among these agreements as discussed in Division 1, we cannot conclude that the trial court erred by denying Gold Kist’s motion for summary judgment on these claims. Moreover, although claims concerning oral contracts are frequently resolved by summary judgment because of OCGA § 13-5-30, in this case the production agreements between Gold Kist and the producers required the producers to take the counsel and advice of Gold Kist’s representatives, the allegations of reliance on the oral promises and the part-performance by the producers (OCGA § 13-5-31), and, in view of the relationship between Gold Kist as an agricultural cooperative and its members, a confidential relationship plainly existed between the parties to this litigation which might entitle the members to rely on representations made by Gold Kist on which plaintiffs in other circumstances could not rely. Additionally, we cannot say as a matter of law that the provisions in the various agreements governing the relationships of the parties clearly allowed for retention of the total notified equity of the members and yet permitted without remedy the termination of the relationship of the members of the cooperative as producers. Therefore, as issues of fact remain on these issues, Gold Kist has not met its burden under OCGA § 9-11-56 (c) and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), we do not find that the trial court erred, as a matter of law, in denying Gold Kist’s motion for partial summary judgment on these claims.

Decided April 18, 1994

Reconsideration denied May 9, 1994

Alston & Bird, Jay D. Bennett, Richard R. Hays, David M. Maxwell, Jennifer L. Hays, for appellant.

Gibson & Jackson, Douglas L. Gibson, for appellees.

Judgment affirmed in part and reversed in part.

Cooper and Blackburn, JJ., concur.