author: Pope, Judge.

text:
    75975.
    MANLEY et al. v. THE STATE.
    (371 SE2d 438)
   Pope, Judge.

Defendants Marvin Daniel Manley and Larry Daniel Manley appeal their convictions of the offenses of hunting at night (OCGA § 27-3-2), hunting from a motor vehicle (OCGA § 27-3-13) and hunting upon a public road (OCGA § 27-3-10). Held:

1. Defendants’ second enumeration of error questions the sufficiency of the evidence. The State’s evidence is that on the night of November 15-16, 1986, law enforcement officers of the Department of Natural Resources were conducting a stakeout in response to complaints of night hunting. Shortly after 2:00 a.m. officers heard a vehicle with a loud muffler approaching slowly on a public road. The approaching vehicle stopped, then turned off the public road onto a gas line easement. At first the officers could only hear the vehicle and see its headlights, but as the vehicle passed nearer the officers’ position, it was moving very slowly and two individuals could be seen standing up on the back of a pickup truck holding something. The truck slowly traveled approximately a half mile down the gas line easement and turned around and returned to the public road. At the public road the vehicle turned towards the officers’ location. As the officers and their automobiles were about to be illuminated by the headlights of the truck, the officers turned on their headlights and saw two individuals on the back of the truck with rifles aimed down the road toward the officers’ location. The officers turned on their blue light, whereupon the truck stopped and the two individuals in the back of the truck began ejecting cartridges from their rifles. As officers approached the truck the two individuals in the back of the truck tried to lie down and hide. The driver of the truck was defendant Larry Daniel Manley. The two individuals in the back of the truck were defendant Marvin Daniel Manley and Cox, a co-defendant who pled guilty to each of the three offenses charged.

From the evidence adduced at trial, a rational trier of fact could reasonably have found proof of each defendants’ guilt of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Shirley v. State, 254 Ga. 723, 724 (n. 1) (334 SE2d 154) (1985).

2. In their first enumeration of error defendants take exception to the trial court’s refusal to quash the accusations against them because the State failed to produce affidavits upon which the accusations were based. Each of the accusations recited that it was predicated upon an affidavit, when, in fact, it was established upon the hearing of defendants’ motion to quash that no affidavits ever existed. “Since 1980 an accusation 'need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.’ Ga. L. 1980, pp. 452, 453 (now OCGA § 17-7-71 (a)); see Evans v. State [168 Ga. App. 716, 717 (310 SE2d 3) (1983)].” King v. State, 176 Ga. App. 137, 138 (2) (335 SE2d 439) (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986). In the case sub judice, the parties stipulated that defendants had been previously arrested.

Nonetheless, defendants contend the State is bound by its choice to base its accusations upon affidavits. See Smith v. State, 140 Ga. App. 339 (1) (231 SE2d 91) (1976); Willoughby v. State, 137 Ga. App. 789 (225 SE2d 65)(1976). However, regardless of whether the reference to the non-existent affidavits is viewed as surplusage or an imperfection amounting to error, no harm to defendants has been shown. Contrary to defendants’ assertion, the absence of the affidavits did not serve to mislead defendants to their prejudice. Miller v. State, 182 Ga. App. 700 (356 SE2d 900) (1987); King v. State, supra.

However, we do find that defendants’ motions to quash the accusations should have been partially granted because a portion of the accusation against each defendant was deficient in that no crime was alleged. “The true test of the sufficiency of an indictment (or accusation or citation) is not whether it could have been made more definite and certain (or, for that matter, perfect,) but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” (Cits, and punctuation omitted.) King v. State, supra at 139-140. Thus, if the accused can admit all the accusation charges and still be innocent of having committed any offense, the accusation is defective. Brooks v. State, 141 Ga. App. 725 (1) (234 SE2d 541) (1977).

Count 1 of the accusation against defendant Larry Daniel Manley charged him with the “offense of misdemeanor Hunting at Night with Aid of lights: for that the said accused . . . did unlawfully hunt wildlife at night with aid of lights.” Wildlife is defined rather broadly in OCGA § 27-1-2 (77) as “any vertebrate or invertebrate animal. . . .” OCGA § 27-3-2 provides it shall be unlawful to hunt at night any game bird or game animal, subject to some exceptions. The terms “game animals” and “game birds” are defined in OCGA § 27-1-2 (34) & (35). While game animals and game birds are subsets of the set wildlife, when combined they do not include all that is defined as wildlife. In other words, some species of wildlife are neither game animal nor game bird. Consequently, one may admit hunting wildlife at night with aid of a light and still be innocent of any criminal activity. Thus, the motion to quash Count 1 of the accusation against defendant Larry Daniel Manley should have been granted.

Count 1 of the accusation against defendant Marvin Daniel Manley was worded significantly differently. Said count accused defendant Marvin Daniel Manley of “Hunting Deer at Night with Aid of Lights: for that the said accused . . . did unlawfully hunt wildlife at night with aid of lights.” Hunting deer at night with the aid of lights is, in fact, a violation of OCGA § 27-3-2 since “deer” is a “game animal” according to OCGA § 27-1-2 (34) and game animals may not be hunted with lights. It matters not that the accusation went on to allege other facts (i.e., that defendant hunted “wildlife”) which do not amount to a crime since, when read as a whole, the accusation clearly and unambiguously charges defendant with hunting a specie of game animal with lights.

The legal sufficiency of the accusation or indictment depends upon the accusation as a whole. “An indictment is sufficiently technical and correct if it states the offense in the terms and language of the statute or so plainly that the jury may easily understand the nature of the offense charged. [OCGA § 17-7-54].” Brooks v. State, 141 Ga. App. 725, 729-730 (234 SE2d 541) (1977). “[A] defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain reversal of his conviction on this ground.” State v. Eubanks, 239 Ga. 483, 484 (238 SE2d 38) (1977). The designation of the offense should be construed together with the descriptive averments contained in the accusation or indictment to determine whether it adequately charges the offense. See Sneed v. State, 16 Ga. App. 351 (1) (85 SE 354) (1915). An accusation or indictment is legally sufficient so long as it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Williams v. State, 165 Ga. App. 69 (1) (299 SE2d 402) (1983). Defendant Marvin Daniel Manley was clearly notified by the accusation as a whole that he was being charged with hunting not just any specie of wildlife but, specifically, deer. Both the defendant and the jury should have easily understood the offense charged. The accusation should not have been quashed and the conviction should not be reversed.

On the other hand, Count 2 of the accusation against each defendant is deficient. Count 2 of each accusation alleges the respective defendants “did with force of arms unlawfully hunt, chase, or kill wildlife from a motor vehicle.” OCGA § 27-3-13 provides that it shall be unlawful to hunt any game bird, game animal, or fur-bearing animal (defined in OCGA § 27-1-2 (31)) from a motor vehicle. Again, those species which may not be hunted from a motor vehicle are subsets of the set wildlife but not exhaustive of all that is included in wildlife. One may admit to hunting wildlife from a motor vehicle and still be innocent of criminal activity. Therefore, the defendants’ motions to quash, in regard to Count 2 of each accusation, should have been granted.

Count 3 of the accusation against each defendant alleges violation of OCGA § 37-3-10, pursuant to which it is unlawful to hunt any wildlife upon any public road. Consequently, use of the word “wildlife” in Count 3 of each accusation results in no deficiency and the trial court did not err by refusing to quash Count 3 of either accusation.

3. The trial court did not err in overruling defendants’ motion to sever. Since none of the factors listed in Jones v. State, 253 Ga. 640, 641 (2) (322 SE2d 877) (1984), are present in the case sub judice we find no abuse of the trial court’s discretion. See also Magouirk v. State, 158 Ga. App. 517 (2) (281 SE2d 283) (1981), and Griggs v. State, 181 Ga. App. 618, 619 (5) (353 SE2d 97) (1987).

4. Defendants’ fourth enumeration of error complains that their sentences are improper, that they are “draconian” when compared to the sentence of Cox, who pled guilty, and that the sentences amount to a sanction of defendants for exercising their right to jury trial. “It is within the sound discretion of the trial court to sentence within the limits allowed by law; the sentence of one joint defendant is irrelevant in the sentencing of the other.” Hamilton v. State, 180 Ga. App. 197, 198 (3) (348 SE2d 735) (1986). See also Davis v. State, 180 Ga. App. 573, 575 (5) (349 SE2d 805) (1986), and Endsley v. State, 184 Ga. App. 797, 799 (7) (363 SE2d 1) (1987). This enumeration is without merit.

5. Defendants, in their fifth enumeration of error, assert a fatal variance between the allegations of Count 3 of each accusation charging hunting upon a public road known as County Line Road (see OCGA § 27-3-10) and the proof adduced at trial. The defendants were arrested on Line Creek Road. There was evidence that Line Creek Road was also known as County Line Road. However, further evidence was adduced that other public roads in the county were also known as County Line Road, thus disclosing some latent ambiguity as to the location of the alleged offense. However, since the exact location is not a material element of the offense of hunting upon a public road, the accusation, by charging that the offense was committed in Spalding County, is sufficiently certain. Russell v. State, 174 Ga. App. 436 (1) (330 SE2d 175) (1985). This enumeration of error is without merit.

6. Defendants’ sixth enumeration of error contends the trial court erred in admitting into evidence the guilty plea of Cox for purposes of impeachment. At trial defendants’ objection was followed by colloquy between court and counsel. Our examination of the transcript of this colloquy reveals no reference to the confrontation clause issues argued by defendants on appeal. As the grounds argued by defendants on appeal were not raised before the trial court and are raised for the first time on appeal, the failure to object at trial constitutes a waiver of the issue raised by this enumeration of error. Price v. State, 142 Ga. App. 504, 505 (2) (236 SE2d 178) (1977).

7. The trial court did not err in failing to define in its charge “hunting,” a word of common meaning and understanding. Smith v. State, 249 Ga. 228, 229 (2) (290 SE2d 43) (1982); Garvey v. State, 176 Ga. App. 268, 273 (5) (335 SE2d 640) (1985).

Lastly, defendants contend the trial court’s instructions were misleading in that the jury was instructed that it was its “duty” to convict defendants if the requisite level of proof was found. The trial court charged: “If you believe beyond a reasonable doubt. . . that he is guilty . . . then it would be your duty or you would be authorized to convict him of any of those charges of which you find him guilty under these instructions.” (Emphasis supplied.) The trial court’s reference to duty to convict was obviously a slip of the tongue, which the trial court corrected immediately. We do not believe the jury was misled or confused by the trial court’s slip of the tongue and its immediate correction. Considered in the light of the entire charge the slip of the tongue was harmless. Payne v. State, 171 Ga. App. 150 (2) (318 SE2d 826) (1984).

Decided June 30, 1988

Rehearing denied July 11, 1988

Virgil L. Brown, for appellants.

John T. Newton, Jr., Solicitor, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    75991.
    BURDEN v. THE STATE.
    (371 SE2d 410)
   Benham, Judge.

Appellant was indicted for and convicted of failing to stop and give information at the scene of a vehicular collision. See OCGA § 40-6-270 (a).

1. In several enumerations of error, appellant questions the sufficiency of the evidence presented by the State and the trial court’s denial of his motion for a directed verdict of acquittal. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), guides our review of both the denial of the motion for directed verdict and the sufficiency of the evidence. Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984).

A woman testified that while driving her compact car, she was hit from behind by a dump truck that pushed her and her vehicle out of its way. She identified appellant as the driver of the dump truck that hit her and proceeded on without stopping. Two eyewitnesses called police within minutes of the collision and described the dump truck as one having a red cab and black body. Each eyewitness identified appellant as the driver of the truck that hit the woman’s car. Shortly after the collision, one to one and-a-half miles from the scene of the incident, law enforcement officers stopped the black and red dump truck driven by appellant, who was traveling away from the accident. At the behest of the officers, appellant returned to the collision site, where he gave the pertinent information. The left front fender of appellant’s truck had on it paint scrapings that appeared to be the same color as the woman’s car, and one of the tires had rub marks. The woman’s car had tire marks on it and its paint had been damaged. Skid marks 64 feet long indicated something had pushed the woman’s car while the car’s brakes were locked.

Appellant maintains there is no evidence that he acted with criminal intent or that he did not comply with OCGA § 40-6-271 as soon as possible.

A criminal intent is necessary to sustain a finding of guilt (OCGA § 16-2-2), and a person is not presumed to act with criminal intent. OCGA § 16-2-6. However, the factfinder may consider the circumstances surrounding the act for which the accused is being prosecuted in determining whether the requisite intent is manifested by the circumstances, and this court will not disturb that factual determination unless it is contrary to the evidence and clearly erroneous. Riddle v. State, 145 Ga. App. 328 (1) (243 SE2d 607) (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981); OCGA § 16-2-6. The evidence that appellant’s truck pushed the compact car a distance of at least 64 feet and that appellant was stopped heading away from the scene, one to one and-a-half miles from the accident, supports the jury’s determination that appellant intended not to stop and give the information listed in OCGA § 40-6-271.

2. Appellant sought dismissal of the indictment on the ground that it did not allege criminal intent or that he had not stopped as close to the scene as possible. “[W]here the indictment alleges an ‘offense,’ and names and describes the offense in terms of the penal statute, and alleges that the act was ‘unlawfully’ committed, and that it was ‘contrary to the laws’ of the State, and employs language from which it must necessarily be inferred that the criminal intent existed, it is not void because it fails to expressly allege the criminal intent. [Cits.]” York v. State, 42 Ga. App. 453 (1) (156 SE 733) (1930). The failure of the indictment to allege that appellant did not stop as close to the accident scene as possible does not void the indictment. The indictment charged that appellant failed to stop and give the information required by OCGA § 40-6-271 after having been involved in an accident resulting in damage to another vehicle. The indictment adequately informed appellant of the charge he faced, and appellant could not admit all the allegations of the indictment and be innocent of the offense. See McWilliams v. State, 177 Ga. App. 447 (1) (339 SE2d 721) (1985); Brooks v. State, 141 Ga. App. 725 (1) (234 SE2d 541) (1977).

3. Paint scrapings from the truck’s fender and from the compact car were sent to the crime lab for analysis. During defense counsel’s cross-examination of the police chief, it was revealed that the crime lab technician had issued a report on the paint samples. The State’s subsequent tender of the report as an exhibit was met with appellant’s objection, which was sustained. Appellant then sought a mistrial because the State had made the jury aware of the report’s existence. When that motion was denied, appellant sought a continuance in order to subpoena the crime lab technician. That request was also denied. Appellant then withdrew his objection to the crime lab paint report, and it was admitted. Appellant contends it was reversible error to deny his motions for a mistrial and a continuance.

Decided May 27, 1988

Rehearing denied July 11, 1988

Virgil L. Brown, for appellant.

E. Byron Smith, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

The grant or denial of a mistrial or a continuance is within the discretion of the trial court. We see no abuse of that discretion, especially since appellant’s counsel first made the jury aware of the existence of a paint sample report, and counsel admitted that despite his awareness prior to trial that the State did not intend to call the lab technician, he had not subpoenaed him.

4. Two exhibits submitted by appellant were admitted into evidence, thereby giving the State the right to open and conclude the argument to the jury. OCGA § 17-8-71. The State waived the opening argument, and appellant waived his argument. When the State announced it wished to make the concluding argument, appellant objected, contending that the concluding argument was a rebuttal argument and that since appellant had not made an argument, there was nothing for the State to rebut. Appellant then made a closing argument, followed by the State’s closing argument. Acknowledging that error, if any, was rendered harmless by his decision to give a closing argument, appellant contends it was reversible error to allow the State to make a closing argument. We are in agreement with appellant that error, if any was harmless. "Since harm, as well as error, must be shown for reversal, this enumeration of error is also without merit.” Wood v. State, 243 Ga. 273 (5) (253 SE2d 751) (1979).

Judgment affirmed.

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


text:
    76130.
    ORKIN EXTERMINATING COMPANY v. MORRISON.
    (371 SE2d 407)
   Benham, Judge.

Appellee purchased a Glynn County home on which appellant had executed a wood infestation report. Four months later, appellee saw evidence of an active wood infestation and called appellant, whose employee then chemically treated appellee’s home. Appellee became ill within days of the application of the chemical treatment and subsequently learned that his illness was due to his hypersensitivity to Chlordane and Heptachlor, two chemicals used to kill termites. Tests revealed that his house and furnishings contained the chemicals. Appellee then filed suit against appellant, alleging that appellant’s employee had negligently handled, applied, and spilled toxic and cancer-causing chemicals in appellee’s home, to appellee’s physical, emotional, and financial detriment. Appellant filed an answer and a motion to dismiss for improper venue. The trial court denied appellant’s motion, and we granted appellant’s application for interlocutory review of that decision.

1. Regardless of the merits of appellant’s motion, dismissal of appellee’s cause of action was not the appropriate remedy for improper venue. Rule 19.1 of the Uniform Rules for the Superior Courts provides that a timely motion in any pending civil action or proceeding that venue is improper “shall be treated as a motion to transfer the action to another court.” 253 Ga. 801, 829. See also Routh v. St. Marys Airport Auth., 178 Ga. App. 191 (2) (342 SE2d 502) (1986). Thus, the trial court did not err in denying appellant’s motion to dismiss. We need only decide whether the trial court erred in failing to transfer the case to another venue.

2. Appellee filed his action in Ware County, where appellant, a Delaware corporation, had an office and transacted business. Appellant’s registered office is maintained in Fulton County. Under OCGA § 14-2-63, the statute governing venue for proceedings against a corporation, a foreign corporation authorized to transact business in Georgia may be sued on contracts in the county where the contract sought to be enforced was made, if the corporation has an office and transacts business in that county. OCGA § 14-2-63 (c). A foreign corporation authorized to transact business in Georgia may be sued for damages because of tortious injury in the county where the cause of action originated, if the corporation has an office and transacts business in that county. OCGA § 14-2-63 (d). These venues are in addition to the county in which the corporation maintains its registered office.

Appellee maintains that venue is proper in Ware County because appellant has an office and transacts business there, and the contract requiring appellant to inspect the house for wood infestation was made there. While appellee’s allegations supporting Ware County venue may be true, close scrutiny of appellee’s complaint shows it to be one sounding in tort. It does not state a cause of action based upon contract. Therefore, venue established pursuant to OCGA § 14-2-63 (c) is inappropriate. Venue for damages due to tortious injury may be brought in the county where the cause of action arose if the corporation has an office and transacts business in that county. OCGA § 14-2-63 (d). Appellant’s alleged negligent conduct, the application of the chemicals at appellee’s Glynn County home, did not occur in Ware County. Thus, venue was improper in Ware County.

3. However, the defense of improper venue may be waived “[i]f it is neither made by motion under [OCGA § 9-11-12] nor included in a responsive pleading, as originally filed.” OCGA § 9-11-12 (h) (1) (B). OCGA § 9-11-12 (b) (3) requires that the defense of improper venue be asserted in the responsive pleading or made by written motion filed at or before the time of pleading. Appellant’s answer was filed June 30,1986, and its motion to dismiss was filed over a year later, on July 27, 1987. Appellant argues that its motion was timely because it had “clearly” and “unquestionably assert[ed] improper venue as a defense to [appellee’s] claim” in its answer. We disagree.

In his complaint, appellee alleged that appellant “is a foreign corporation domesticated by the State of Georgia with its principal office and place of business in Georgia, and has an office and transacts business in Ware County, Georgia where the contract sought to be enforced was made out of which the breaches of contract and tortious conduct arose, and had said office and transacted business in Ware County at the time the contract was entered into, and is subject to the jurisdiction of this court. See: [OCGA] § 14-2-63.” In its answer, appellant admitted “it is a foreign corporation qualified to do business in Georgia, with, its principal place of business located in Fulton County, Georgia, and admits that it has an office and an agent in Ware County, Georgia, and admits that it is subject to the jurisdiction of this Court. All other allegations of paragraph (1) of the Complaint are denied.”

“Every defense, in law or fact, . . . shall be asserted in the responsive pleading thereto if one is required. . . .” OCGA § 9-11-12 (b). (Emphasis supplied.) Appellant contends that its general denial of the remaining allegations of the first paragraph of appellee’s complaint constituted an assertion that venue in Ware County was improper. We cannot agree. Improper venue is a defense. OCGA § 9-11-12 (b) (3). “Although there is no need for a defendant to set forth any evidence, or to expose its defense in detail, it is required that an answer contain a statement of facts sufficiently definite so that the plaintiffs will be informed of the defense they must be prepared to meet. [Cit.]” Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383, 385 (203 SE2d 290) (1973). While it is not necessary to set forth in a responsive pleading reasons why venue is improper, in order to assert the defense, a defendant must make reference to venue. A general denial is not an assertion. Since appellant did not assert timely the defense of improper venue, that defense was waived. OCGA § 9-11-12 (h). The trial court did not err in failing to transfer this case to Fulton County.

Judgment affirmed.

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

Decided May 25, 1988

Rehearing denied July 11, 1988

Richard P. Decker, Jay M. Barber, for appellant.

J. Alvin Leaphart, for appellee.


text:
    76389.
    GEORGIA MUTUAL INSURANCE COMPANY v. MIMS.
    (371 SE2d 426)
   Pope, Judge.

We granted interlocutory review of the trial court’s denial of appellant Georgia Mutual’s motion for summary judgment. Two issues are involved in this case: (1) whether insurance agent Judy Radke and GMIC Premium Finance Company are agents of appellant such that their representations of an insurance policy term bind appellant, and (2) whether appellant’s notice of the impending expiration of appellee’s insurance policy, delivered to Radke, satisfied the requirements of OCGA § 33-24-45. The latter is a genuine issue of material fact. The former is not. The trial court’s denial of summary judgment must be affirmed in part and reversed in part.

Appellee Vickie Mims, plaintiff below, applied for an automobile insurance policy from appellant Georgia Mutual through insurance agent Judy Radke of Insuron Insurance Agency. Appellee financed the premium through GMIC Premium Finance Company. Although the application stated that the policy would expire November 16, 1983, both Radke and the finance company represented that the policy would expire April 16, 1984.

In October 1983 appellant mailed Radke a list of policies due to expire on or before November 30, 1983. Appellee’s policy was among those on the list. On December 1, 1983, 15 days after the expiration date listed on the policy application, appellee’s automobile was involved in a collision. Both automobiles received extensive damage. When appellant refused to provide coverage under the policy, plaintiff filed the present action. Held:

1. Appellee Mims claims that Radke and the finance company are agents of appellant and that appellant is bound by their representations concerning the expiration date of the policy. Appellant denies that Radke and the finance company are its agents. Denial of an agency relationship by a purported party to that relationship is admissible as a statement of fact, rather than a mere conclusion of law. Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 858 (229 SE2d 765) (1976); Salters v. Pugmire Lincoln-Mercury, 124 Ga. App. 414 (1) (184 SE2d 56) (1971). Such a denial pierces the pleadings and is sufficient to support a motion for summary judgment. Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551-52 (261 SE2d 361) (1979); Bush v. Vanguard Ins. Co., 172 Ga. App. 704, 706 (324 SE2d 554) (1984); National Property &c. Ins. Co. v. Wells, 166 Ga. App. 281 (2) (304 SE2d 458) (1983). Appellee failed to rebut appellant’s prima facie showing of no agency. Summary judgment for appellant should have been granted on this issue.

2. The second issue to be addressed is whether appellant’s notice was adequate as a matter of law. OCGA § 33-24-45 provides in pertinent part: “(e) (1) No insurer shall refuse to renew a policy to which this Code section applies unless a written notice of nonrenewal is mailed or delivered in person to the named insured . . . (f) Subsection (e) of this Code section shall not apply in case of: (3) The insurer having manifested its willingness to renew by delivering a renewal policy, renewal certificate, or other evidence of renewal to the named insured or his representative or by offering to issue a renewal policy, certificate, or other evidence of renewal or having manifested such intention by any other means.” Appellant claims that mailing the list of policies due to expire constitutes evidence of willingness to renew delivered to the insured’s representative as required by the statute. To establish whether this notice was adequate, we must address two sub-issues: (1) whether Radke was appellee’s representative and (2) whether the notice constituted evidence of willingness to renew.

Appellee Mims denies that Radke is her representative. As with the issue of agency, discussed above, the denial of a relationship pierces the pleadings and shifts the burden to appellant to prove the existence of the relationship. There is some evidence of representation in the record. Appellee’s application for insurance describes Radke as “the agent of the insured in placement of this risk,” which might suggest that Radke is appellee’s representative. Appellant’s position is also supported by the fact that case law generally views an insurance agent as the agent of the insured. National Property &c. Ins. Co. v. Wells, supra. If Radke is appellee’s agent, Radke may also be appellee’s representative.

A second question exists as to whether the notice was evidence of willingness to renew, as described in OCGA § 33-24-45 (f) (3). The notice was in the form of a list of names, including appellee’s name. The notice stated: “The following policies expire not later than . . . 11/30/83. Notice: this list is furnished only as a memorandum. It should be carefully checked against your records.” A jury must decide whether this constitutes “evidence of renewal” delivered to the insured’s representative.

These issues are material. If the insurer does not properly comply with the notice requirements of OCGA § 33-24-45, then the insured’s policy is automatically renewed. See, e.g., Garner v. Government Employees Ins. Co., 129 Ga. App. 235 (1) (199 SE2d 350) (1973). Thus, the decision of the trial court denying summary judgment as to these issues must be affirmed.

Decided June 22, 1988

Rehearing denied July 11, 1988

Steven P. Gilliam, Donald T. Hunt, for appellant.

Lloyd E. N. Hall, for appellee.

Judgment affirmed in part, reversed in part.

McMurray, P. J., and Benham, J., concur.


author: Birdsong, Chief Judge.

text:
    76485.
    LFE CORPORATION (AUTOMATIC SIGNAL DIVISION) v. EDENFIELD et al.
    (371 SE2d 435)
   Birdsong, Chief Judge.

This is an interlocutory appeal of an order by the State Court of Chatham County denying in part appellant’s motion for summary judgment. This case presents an issue regarding the potential retroactive application of OCGA § 51-1-11 (b) (2) as to a claim against a manufacturer based on negligence. The cause of action in this case arises from an automobile accident that occurred when a stop light manufactured by appellant and sold to the Department of Transportation allegedly malfunctioned by flashing a green signal to all oncoming traffic. Appellee entered the intersection, allegedly relying on the accuracy of the malfunctioning signal, and was struck by a tractor-trailer entering the intersection from a connecting road. Appellee subsequently brought suit on the basis of both strict liability and negligence. Appellant responded by asserting that the suit was barred by the 10-year statute of repose contained in OCGA § 51-1-11. The trial judge partially granted appellant’s motion as to that portion of the claim sounding in strict liability, but denied the requested relief as to that portion of the claim grounded on a cause of action based on negligence.

Appellant enumerates as error that “[t]he trial court erred in denying [appellant’s] motion for summary judgment in regard to appellees’ claims under the theory of negligence where their complaint was filed more than ten years from the date the product was first sold.” The relevant events are chronologically listed as follows:

(a) April 23 and 26, 1976: Appellant, in response to a purchase order, ships certain traffic lights to the State.

(b) July 1, 1978: OCGA § 51-1-11 (b) (2) (then Code Ann. § 105-106 (b) (2)) becomes effective.

(c) December 7, 1984: Appellee’s vehicle is struck at intersection.

(d) December 4, 1986: Appellee’s complaint is filed.

(e) July 1, 1987: Subsection (c) is added to OCGA § 51-1-11.

OCGA § 51-1-11 (b) (1) provides that manufacturers of personal property sold as new property shall be subject to strict liability under certain conditions not relevant to the determination of the issue before us. OCGA § 51-1-11 (b) (2) provides that: “[n]o action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” OCGA § 51-1-11 (c) pertinently provides that: “[t]he limitation of paragraph (2) of subsection (b) of this Code section regarding bringing an action within ten years from the date of the first sale for use or consumption of personal property shall also apply to the commencement of an action claiming negligence of a manufacturer as the basis of liability. . . .”

The trial judge correctly concluded that Hatcher v. Allied Prods. Corp., 256 Ga. 100 (344 SE2d 418) was dispositive of the issue regarding the retroactive application of OCGA § 51-1-11 (b) (2) to that portion of appellee’s claim sounding in strict liability. In Hatcher, a tractor was manufactured and sold in 1973, the provisions of OCGA § 51-1-11 (b) (2) (then Code Ann. § 105-106) creating a 10-year statute of repose were enacted in 1978; the injury occurred in 1982; and, the original complaint was filed in 1984. Thus, the statute of repose was enacted both before the injury and before the complaint was filed, but after the first sale of the tractor. The suit in Hatcher was commenced more than ten years after the first sale and was based on claims sounding in both strict liability and negligence. The court held that the statute barred that portion of the suit grounded on a strict liability claim, but that the statute did not apply to negligence claims. In arriving at its disposition, the court in Hatcher concluded “[t]he statute is . . .a complete bar to strict liability actions filed more than ten years after the ‘date of the first sale for use or consumption of the product regardless of whether the underlying injury occurred within the ten-year period.” Id. at 101. Thus, under the Hatcher holding, when this type of statute of repose is enacted both before the injury and before the complaint is filed, but after the first sale occurs, it clearly will be given appropriate application. Thus the trial judge’s reliance on Hatcher to dispose of appellee’s strict liability claim was correct.

Appellant argues, however, that the trial judge improperly denied that portion of its motion for summary judgment as pertained to appellee’s claim sounding in negligence. Appellant basically asserts that the provisions of OCGA § 51-1-11 (c), enacted in 1987, which in essence provide that the ten-year statute of repose found in OCGA § 51-1-11 (b) (2) shall also apply to claims against a manufacturer sounding in negligence are only a clarification of the legislative intent of the Georgia Assembly. Specifically, by subsequently enacting subsection (c), the legislature clearly was establishing that they intended a similar result when they originally enacted subsection (b) (2). If this argument is correct, then Hatcher controls as OCGA § 51-1-11 (b) (2) both predated appellee’s accident and the date of the filing of the complaint. Inherent in this argument is the proposition that OCGA § 51-1-11 (b) (2) from its inception applied to claims sounding in negligence. This argument overlooks the precedent of our courts that OCGA § 51-1-11 (b) (2) as originally enacted did not apply to negligence claims. Hatcher, supra at 101, citing Ford Motor Co. v. Carter, 239 Ga. 657, 660 (238 SE2d 361). As OCGA § 51-1-11 (b) (2) originally applied only to claims sounding in strict liability, the effect of the subsequent enactment of subparagraph (c) was not that of “clarification,” but the promulgation of a new statutory rule that would provide for the application of the ten-year statute of repose to negligence cases.

Appellant further argues, however, that even if subparagraph (c) does not constitute a clarifying amendment, a statute of repose may be given retroactive application, and therefore the provisions of sub-paragraph (c) should be applied retroactively to bar appellee’s negligence claim. In support of this contention, appellant relied primarily upon Hatcher, supra; Nelms v. Georgian Manor Condominium Assn., 253 Ga. 410 (321 SE2d 330); and U-Haul Co. of Western Ga. v. Abreu & Robeson, 156 Ga. App. 72 (274 SE2d 26), affirmed on other grounds, 247 Ga. 565 (277 SE2d 497). The facts of these cases are distinguishable from the facts of this case.

The issue of whether OCGA § 55-1-11 (c), a statute of repose, can be applied retroactively when both the injury and the filing of the original complaint preceded the effective date of its enactment is one of first impression for our courts. This issue is squarely before us as this claim currently is not barred by any other statute of repose or statute of limitation.

Statutes of limitation and statutes of repose “look only to remedy and not to substantive rights,” see Dixie Constr. Co. v. Williams, 95 Ga. App. 767, 770 (98 SE2d 582), and thus under certain conditions can be applied retroactively. See, e.g., Hatcher, supra; OCGA § 1-3-5.

In Jaro, Inc. v. Shields, 123 Ga. App. 391 (181 SE2d 110), this court held that “[a] statute of limitation is remedial in nature.” Id. at 392. Statutes of repose are likewise remedial in nature. Thus, as we stated in Jaro, “[t]he legislature can constitutionally provide for the retrospective application of a remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights.” Id.; see OCGA § 1-3-5. But, “a statute is not to be construed retroactively in operation unless the language of the statute imperatively requires it.” Jaro, supra at 392.

In Watkins v. Barber-Colman Co., 625 F2d 714 (5th Cir. 1980), plaintiff was in an accident in February 1978, the ten-year statute of repose (Code Ann. § 105-106 (b) (2)) became effective July 1978, and the complaint was filed in September 1979. The court citing Jaro held that the “statute of limitation” did not apply, as no language was found therein which imperatively required its retroactive application.

However, notwithstanding the language in Jaro and OCGA § 1-3-5, the Supreme Court in Hatcher applied OCGA § 51-1-11 (b) (2) to bar the strict liability claim, apparently relying on the perceived legislative intent concerning the statute’s application to the facts before it. In doing so, the Supreme Court neither cited OCGA § 1-3-5 nor discussed our holding in Jaro.

In the case at bar, the trial judge, in addition to citing the precedent found in Jaro, also relied upon the principles discussed in Enger v. Erwin, 245 Ga. 753 (267 SE2d 25), and concluded that appellees had a substantive right to bring an action sounding in negligence, which “vested” before OCGA § 51-1-11 (c) was enacted, thereby precluding the retroactive application of the statute of repose as to this particular claim. In Enger, the Supreme Court stated: “Although legislation which involves mere procedural or evidentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only.” Enger, supra at 754.

In view of the existing facts, we need not determine whether the guidance found in Jaro remains viable, or whether the trial court could properly rely upon the principles found in Enger in the disposition of the retroactivity issue. In this case, not only did appellee’s cause of action accrue before OCGA § 51-1-11 (c) was promulgated, but appellee’s complaint was filed before this subsection was enacted as well. Other states generally have adopted the rule that the statute of limitation or statute of repose in force at the time the suit is commenced governs. Dodd v. Kiefer, 416 NE2d 463, 465 (Ind. App. 1981); Street v. Anniston, 381 S2d 26, 29 (S.C. Ala. 1980); accord Wimpey v. Sanchez, 386 S2d 1241, 1242 n. 2 (C.A. Fla. 1982); quashed in part, 409 S2d 20, on remand 410 S2d 197; Grand Island School Dist. v. Celotex Corp., 279 NW2d 603, 609 (203 Neb. 559 (1979)); Andrulat v. Brook Hollow Assoc., 407 A2d 1017, 1018 (176 Conn. 409 (1979)); see Brooks v. New Orleans Public Svc., 370 S2d 686, 690 (C.A. La. 1979), writ den. 373 S2d 512; Hupp v. Gray, 382 NE2d 1211, 1214 (73 Ill2d 78 (1978)).

We believe that the principle of law adopted in the above-cited cases is entirely consistent with the intent of our legislature that ordinarily laws will not have a retrospective operation. OCGA § 1-3-5. Accordingly, we hold that, based on the operative facts of this case, appellee’s cause of action sounding in negligence is not barred by the statute of repose contained in OCGA § 51-1-11 (c).

Decided June 29, 1988

Rehearing denied July 11, 1988

Luhr G. C. Beckmann, Jr., Walker W. Ballew III, for appellant.

Stanley M. Karsman, David H. Connolly, Jr., Laura E. Best, Tom A. Edenfield, for appellees.

Judgment affirmed.

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


text:
    76494.
    SANTONE v. THE STATE.
    (371 SE2d 428)
   Birdsong, Chief Judge.

Appellant Joseph Anthony Santone was convicted of trafficking in cocaine by knowingly bringing into this state and by knowingly being in actual possession of more than 28 grams of a mixture with a purity of more than ten percent cocaine. See generally OCGA §§ 16-13-26 (1) (D); 16-13-31 (a) (1). Held:

1. Appellant’s first enumerated error is that the trial judge erred in overruling appellant’s motion to suppress.

Agent Markonni and Agent Johnson of the DEA were in the Hartsfield International Airport watching passengers deplane from commercial flights arriving from major drug source cities. Appellant was observed getting off a flight from Fort Lauderdale. He was the “very last passenger” to deplane, and was carrying only a small leather tote bag. Appellant sought directions from airline personnel regarding a connecting flight, and Agent Markonni was able to observe appellant’s ticket. The appellant did not have any baggage claims checks and his ticket had been purchased for cash. The name “Santone” was on the ticket. Agent Markonni next checked the Delta Air Lines reservation computer and discovered that appellant had purchased the ticket the same day and only two hours and fourteen minutes before flighttime. Appellant had left no call-back number with the airlines. As appellant appeared to have made a “last minute decision” to fly from Fort Lauderdale to Pittsburg, Agent Markonni decided to interview him and observe how he reacted.

Agents Markonni and Johnson went to the departure gate of appellant’s next flight and arrived there before the appellant. When the appellant arrived, the agents “walked up to him” and identified themselves as police officers. Neither agent displayed his firearm. Agent Markonni asked if the appellant would speak with him for a few minutes, and the appellant responded in the affirmative. Agent Markonni then asked to see appellant’s airline ticket, which the latter produced and gave to the agent. The agent verified that the ticket was a cash ticket, issued in the name of Joe Santone, and that it had no baggage claim attached thereto and bore no evidence that one had ever been thereto attached. The ticket was returned to the appellant, and the appellant was asked if he had any identification. Appellant produced an Ohio driver’s license from an address book which contained no other identification cards. Agent Markonni noticed that the appellant had become “unusually nervous” and that his hand shook as he produced the driver’s license. The appellant stated that he had gone to Florida to look for a job. Agent Markonni returned appellant’s driver’s license to him.

At this point, the appellant was informed that the agents were narcotics agents looking for drugs and asked if he would let the agents search him and his bag for drugs. Appellant hesitated and then said “yes.” The agents gave appellant the option either of being searched in the departure gate area or of being searched in a private room. The appellant stated that he wanted to be searched in private. The appellant was taken to a private room. As soon as they entered the room, the appellant was read his search rights from a card that Agent Markonni carried. The appellant was specifically advised that he had the right to allow or refuse to allow a search to be made of his person and his personal property; that he had the right to consult with an attorney before deciding whether he would allow or refuse to allow the searches; and, that any illegal evidence found could be used against him in a court proceeding. Appellant stated that he understood his rights and consented to the search. A patdown of appellant revealed nothing; however, cocaine was found in the bottom of a pair of boots in appellant’s tote bag. Laboratory analysis disclosed that the cocaine was 96 percent pure cocaine and that the total weight of the powder was 168 grams. After the drug was discovered, appellant was placed under arrest and was advised of his Miranda rights. Appellant was transported to the agent’s office. During booking procedure, appellant was given a “very thorough search,” and during the course of the search, he handed the agents a “little cocaine use kit” and a small vial containing cocaine. Appellant said that this latter quantity of drug was for his own personal use.

As a general rule, “ ‘the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.’ ” Jones v. State, 184 Ga. App. 328 (361 SE2d 693). The record of the suppression hearing has not been forwarded for consideration by this court, so we are unable to review the evidence admitted at that hearing. In the absence of a transcript of the suppression hearing, “ ‘we must assume as a matter of law that the evidence adduced at the hearing supported the findings of the court.’ ” Brannon v. State, 176 Ga. App. 781 (5) (337 SE2d 782).

Moreover, our review of the trial transcript reveals no independent basis therein for reversal of the trial judge’s ruling. As in Miller v. State, 183 Ga. App. 55, 56 (357 SE2d 876), “ ‘[t]he facts disclose a valid police-citizen encounter’ ” followed by appellant’s consent to speak with the officers for a few minutes. See generally Verhoeff v. State, 184 Ga. App. 501 (2) (362 SE2d 85). Thereafter, appellant voluntarily remained in the officers’ presence affirmatively responding to their requests to see his airplane ticket and driver’s license. The appellant further consented to a search of his person and his bag, and expressly requested that he be searched in private rather than at his current location. Immediately upon entering the private room, the appellant was informed of his right to consent to or to object to the search and of his right to consult with counsel before making such an election. The accused again consented to search. The trial court found that, based on these facts, “the defendant consented to a search of his carry-on bag and that the contraband was properly seized.” We accept those findings without reservation, as there exists no evidence before this court which would warrant our conclusion that the trial court’s finding was “clearly erroneous.” Id. In fact, the transcript of the trial shows that appellant was not subjected to any duress or coercion, and that he “freely, voluntarily and intelligently consented to the search of his person and his personal belongings.” Jones v. State, supra at 329.

2. Appellant’s second enumeration of error is that the trial court erred in refusing to charge the jury “that the lesser included offense of trafficking in cocaine is possession.”

This case is distinguishable from both Dalton v. State, 249 Ga. 720 (292 SE2d 834) and Waters v. State, 177 Ga. App. 374 (339 SE2d 608), as neither of these cases involve the denial of a request for a lesser included offense instruction.

The facts of this case do not reasonably give rise to an issue regarding either the amount and quality of the cocaine confiscated or as to the type of possession, actual or constructive, exercised by the appellant. As in Hernandez v. State, 182 Ga. App. 797 (3) (357 SE2d 131), under the evidence presented in the case sub judice, only two verdicts were possible — guilty of trafficking in cocaine or acquittal. Even when an instruction is requested in writing, the trial court can refuse to charge on a lesser included offense when the evidence does not reasonably raise the issue that the defendant may be only guilty of the lesser crime. Id. at 801; see Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547); Hambrick v. State, 174 Ga. App. 444 (2) (330 SE2d 383).

3. Appellant’s third enumeration of error is that the trial judge erred in refusing to allow an expert witness for the defense to testify as to appellant’s drug addiction and treatment as it related to possession and consumption of cocaine. In the trial of cases, irrelevant matter should be excluded. OCGA § 24-2-1. “Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” Lewis v. State, 158 Ga. App. 586 (1) (281 SE2d 331). We are satisfied that the trial court, under the existing circumstances, did not abuse its discretion in refusing to admit this evidence.

Moreover, we note that the trial court thereafter gave a limiting-type of instruction to the jury, which not only informed them that certain question asked of the appellant’s expert witness had been ruled irrelevant and immaterial, but specifically informed them that “the [appellant] is not on trial for selling or distributing any drugs whatsoever.” Subsequently, on cross-examination of appellant’s expert it was revealed appellant had admitted to the expert that he was carrying almost six ounces of cocaine and that “he had a cocaine habit.” Thus, assuming arguendo error occurred in refusing to admit the testimony of the expert during direct examination, we are satisfied that using the high probability test any such error was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

4. Appellant’s fourth enumeration of error is that the trial court erred “in stating in the presence of the jury its opinion as to the relevance of the testimony of the defense expert.” It is well established that “ ‘[w]here the trial judge is alleged to have made a prejudicial remark . . . during the course of the trial in violation of [OCGA § 17-8-57], an objection . . . must be made in order to preserve the issue for appeal.’ ” Barber v. State, 176 Ga. App. 103 (3) (335 SE2d 594); accord Parrish v. State, 182 Ga. App. 247 (3) (355 SE2d 682); Miller v. State, 180 Ga. App. 525 (2) (349 SE2d 495). The transcript reveals that appellant made neither a timely nor specific objection to the trial judge’s comments, and did not move for mistrial. Further, remarks of a trial judge which inform the jury of the reason for the ruling excluding evidence generally constitute neither an expression of opinion nor a comment on the evidence within the meaning of OCGA § 17-8-57. McMillan v. State, 257 Ga. 173 (4) (356 SE2d 866); Goode v. State, 171 Ga. App. 901 (2) (321 SE2d 410). This enumeration of error is without merit.

Judgment affirmed.

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

On Motion for Rehearing.

Appellant asserts that this court failed to consider the record of a suppression motion hearing allegedly filed with this court on March 1, 1988. In fact, the record in question was not filed with the clerk of the court below until March 2, 1988, and was not filed with this court until June 29, 1988. In the interest of fairness, however, we will grant appellant’s motion for rehearing.

Decided June 22, 1988

Rehearing denied July 11, 1988.

Guy J. Notte, for appellant.

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

We have carefully considered all evidence of record pertaining to this case currently in the possession of and duly filed with this court to include the suppression motion hearing in question.

We find no merit in any of appellant’s enumerations of error.


author: Banke, Presiding Judge.

text:
    76704.
    McMACHREN v. THE STATE.
    (371 SE2d 445)
   Banke, Presiding Judge.

The appellant filed a general plea of insanity to an indictment charging him with armed robbery and possession of a firearm during the commission of a crime. Rejecting that plea, a jury found him guilty but mentally ill on both counts. On appeal he contends, among other things, that he was entitled to an acquittal as a matter of law on the basis of his insanity defense.

During the year prior to the robbery, the appellant had complained of auditory hallucinations and had received extensive treatment, including a lengthy period of hospitalization, for schizophrenia. On September 9, 1986, his mother reported to the police that he had disappeared from her apartment and that he needed his medication. Several days later, on September 13, 1986, he robbed the cashier at a Texaco gas station and convenience store. He was apprehended shortly thereafter at a nearby McDonald’s restaurant, based on the description provided to police by the Texaco cashier. He subsequently told a police investigator that he had been living in the weight room of his mother’s apartment complex and in the woods during the days prior to the robbery and that he had decided to commit the robbery because he had run out of money.

The appellant presented expert psychiatric opinion testimony to the effect that he had been unable to distinguish between right and wrong at the time of the offense and had been suffering from a delusional compulsion. The state presented contrary opinion testimony from a forensic psychiatrist who had been appointed by the court to examine the appellant pursuant to OCGA § 17-7-130.1; however, unlike the defense expert, the court-appointed expert apparently had formulated his opinion without benefit of a review of the medical records dealing with the appellant’s previous psychiatric treatment. Held:

1. In Brown v. State, 250 Ga. 66, 71-72 (295 SE2d 727) (1982), the Supreme Court held that “an appropriate standard of appellate review of the sufficiency of the evidence with regard to a jury’s finding of sanity in a criminal case is whether after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.” In announcing this standard of review, the Court reaffirmed its previous holdings that “because jurors are not bound by the opinions on sanity of either lay or expert witnesses, the jury may reject defense testimony on insanity even if uncontradicted; the presumption of sanity does not disappear upon the introduction of evidence to the contrary and may be relied upon by the jury even after the introduction of evidence of insanity.” Id. at 71, citing Brooks v. State, 247 Ga. 744 (279 SE2d 649) (1981).

Citing Stevens v. State, 256 Ga. 440 (350 SE2d 21) (1986), the appellant contends that application of the Brown standard mandates the reversal of his convictions in the present case. The defendant in Stevens had beaten or strangled his wife to death inside their car after the couple ran out of gas on Interstate 75 in Georgia en route to Florida from Ohio. He was observed the following day standing in the parking lot of a nearby restaurant staring into space for several hours, and the police were summoned. Upon being questioned, he stated that his wife was possessed by Satan, that he had beaten Satan out of her, and that she would arise the next day at noon, rid of the devil. A forensic psychiatrist from Central State Hospital, where the defendant was sent for evaluation and treatment following his arrest, testified that the defendant had been suffering from a delusional compulsion at the time of the killing and had been unable to distinguish right from wrong. There was no contrary expert testimony tending to rebut the defendant’s insanity defense; however, the trial court, sitting without a jury as the trier of fact, nevertheless rejected that defense, being persuaded, evidently, that certain actions taken by the defendant immediately after the homicide were inconsistent with an inability to distinguish right from wrong, and being further persuaded that the delusion which had prompted the defendant to commit the offense had not concerned a fact which, if true, would have justified the killing, so as to establish a defense under OCGA § 16-3-3. See Brown v. State, 228 Ga. 215, 217 (184 SE2d 655) (1971). On appeal, the Supreme Court disagreed with this latter determination and consequently reversed the conviction, concluding that the evidence demanded a finding that the justification requirement for a defense of delusional compulsion had been met. Id. at 442.

In the case presently before us, as in Stevens, there were circumstances which would have authorized a rational trier of fact to reject the testimony of the appellant’s expert to the effect that the appellant had been able to distinguish between right and wrong at the time of the robbery. Specifically, it was revealed that he had told the police subsequent to his arrest that he had picked the Texaco store because it had only one clerk, and there was evidence that he had waited for the other customers in the store to leave and had kept his gun concealed prior to committing the offense. Accord Harris v. State, 256 Ga. 350, 355 (349 SE2d 374) (1986). In contrast to the Stevens case, however, there is no evidence in the present case which would support, much less demand, a finding that the appellant’s conduct was the product of a delusional compulsion within the contemplation of OCGA § 16-3-3. While there was evidence that he had acted in response to inner voices which were telling him to kill himself, to kill someone else, or to “go rob something,” this evidence clearly did not establish a delusion “as to a fact which, if true, would justify the act.” Brown v. State, supra at 228 Ga. at 217-218. Moreover, the appellant’s statement to police that he had decided to rob the store because he was out of money suggests that he was responding as much to reality as to the hallucinatory commands. Considering the evidence in the light most favorable to the verdict, and applying the standard of review set forth in Brown v. State, supra, we are consequently constrained to hold that the appellant was not entitled to a directed verdict of acquittal on the basis of his insanity defense.

2. The appellant contends that the court erred in allowing the state to call the court-appointed psychiatrist as its own witness on the sanity issue, both because OCGA § 17-7-130.1 requires that the testimony of the court-appointed expert “shall follow the presentation of the evidence for the prosecution and for the defense . . . ,” and because in the written report which the expert had submitted prior to trial, he had expressed no opinion regarding the appellant’s sanity at the time of the offense but had confined himself to the issue of the appellant’s competency to stand trial. We do not reach either of these contentions, as we find no indication either in the appellant’s brief or in the trial transcript that any such objections were raised to the witness’s testimony at trial. See generally Edwards v. State, 224 Ga. 684 (1) (164 SE2d 120) (1968).

3. On direct examination by the state’s attorney, the victim testified that she could not remember whether the appellant had actually pointed the gun at her before telling her to give him the money from the cash register or whether he had instead merely displayed the gun to her. Over the appellant’s objection that a party may not impeach his own witness, the state’s attorney was thereupon permitted to question the victim regarding the contents of a statement she had previously made to the police to the effect that the appellant had in fact pointed the gun at her. The appellant’s objection was properly overruled, as the rule that a party may not impeach his own witness by reference to a prior inconsistent statement was abrogated by the Supreme Court in Davis v. State, 249 Ga. 309 (3) (290 SE2d 273) (1982). See also Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). The reference to the witness’ prior statement must be considered harmless in any event, for even after being confronted with it she continued to testify that she did not remember whether the gun was actually pointed at her, stating, “All I did, [I] seen the gun, and he scared me.” It was, of course, unnecessary for the gun actually to have been pointed at the victim in order for the offense of armed robbery to have been committed. See Maddox v. State, 174 Ga. App. 728 (1) (330 SE2d 911) (1985).

Decided July 11, 1988.

James W. Howard, for appellant.

Robert E. Wilson, District Attorney, R. Stephen Roberts, Helen A. Pryles, Assistant District Attorneys, for appellee.

4. In two separate enumerations of error, the appellant contends that it is violative of his rights both under OCGA § 16-1-7 and under the double jeopardy provisions of the state and federal constitutions to convict him of two separate offenses based on the same conduct. Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e). As the constitutionality of this statute has previously been upheld by the Georgia Supreme Court in Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714) (1982), we find this enumeration of error to be without merit.

Judgment affirmed.

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


text:
    76791.
    UTICA MUTUAL INSURANCE COMPANY v. CHASEN.
    (371 SE2d 448)
   Banke, Presiding Judge.

The appellee filed suit against four named defendants (Jarrett, Frazier Service Company, Davison, and Skillin) to recover for personal injuries sustained in an automobile accident. In her original complaint, the appellee alleged that her vehicle had been struck from the rear by a Dodge van owned by Frazier Service Company and being driven by Jarrett and that a Chevrolet Chevette owned by Skillin and being driven by Davison had then hit the van from the rear, causing her vehicle to be struck again. The appellant, Utica Mutual Insurance Company, was served as the appellee’s uninsured motorist carrier and filed an answer in its own name. Utica moved for summary judgment after learning through discovery that none of the named defendants were either uninsured or únderinsured, and the appellee responded by amending her complaint to allege, for the first time, that “the subject incident was caused in whole or in part by the negligence of an unknown motorist.” However, the appellee did not seek at any time to add a John Doe defendant as a party to the action. The trial court denied Utica’s motion for summary judgment, whereupon we granted an interlocutory appeal to address the legal effect of the appellee’s amendment to her complaint. Held:

Decided July 11, 1988.

Michael J. Rust, for appellant.

Patrick J. Fox, for appellee.

In order to obtain a judgment against an uninsured motorist carrier based on the negligence of an unknown motorist, it is necessary to institute an action against the unknown motorist as a “John Doe” defendant. See OCGA § 33-7-11 (d). Upon being served with a copy of the complaint and summons against the John Doe defendant, the insurance company is authorized pursuant to OCGA § 33-7-11 (d) “to file pleadings and take other action allowable by law in the name of ‘John Doe’ or itself.” Id. See generally Peagler & Manley Ins. Agency v. Studebaker, 156 Ga. App. 786 (275 SE2d 385) (1980).

Because the amendment did not seek to add a John Doe defendant, and because it is undisputed that none of the existing defendants were either uninsured or underinsured, we hold that Utica’s motion for summary judgment should have been granted. Accordingly, we do not reach the issue of whether, had the amendment sought to add a John Doe defendant (see generally OCGA §§ 9-11-15; 9-11-21) the trial court would have been authorized to treat it as relating back to the date of the filing of the original complaint for statute of limitation purposes. See generally OCGA § 9-11-15 (c); Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14 (217 SE2d 358) (1975).

Judgment reversed.

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


text:
    76830.
    GEORGIA HIGHER EDUCATION ASSISTANCE CORPORATION v. GELDON.
    (371 SE2d 449)
   Banke, Presiding Judge.

The appellant, Georgia Higher Education Assistance Corporation, is the guarantor of an educational loan made to the appellee by a savings and loan association. After making partial payments on the loan, the appellee defaulted; and the appellant, in accordance with the terms of the guaranty agreement, paid the savings and loan association the remaining balance due on the note. Thereafter, the appellant, as assignee of the note, brought the present action against the appellee seeking to recover the unpaid balance, in the amount of $1,976.99, plus interest. The appellee denied liability, contending that an unidentified agent of the savings and loan association had represented to her that her obligation on the loan would be satisfied if she remained employed as a draftsman for the State of Georgia for a period of three years. The appellant filed a motion for summary judgment, supported by the affidavit of appellant’s acting manager of collections, who averred that neither the appellant nor the savings and loan association had made any such representation to the appellee. The trial court denied the motion, and the case is now before us pursuant to our grant of the appellant’s application for interlocutory appeal. Held:

“Indirect” student loans, i.e., student loans made by commercial lenders and guaranteed by the Georgia Higher Education Assistance Corporation, are governed by OCGA § 20-3-261 et seq., whereas “direct” student loans, i.e., student loans made directly by the Georgia Higher Education Assistance Corporation, are governed by OCGA § 20-3-370 et seq. It is only the latter type of loan which affords the borrower the option of repaying the loan through services rendered.

The record reflects that the appellee’s loan was an indirect loan from a commercial lender rather than a direct loan from the state. Her assertion that she was relieved of her obligation to repay the loan by virtue of certain oral representations made by an agent of the savings and loan association is in direct conflict with the language of the note itself, which clearly and unconditionally requires the indebtedness to be repaid in cash in monthly installments. It is axiomatic that parol evidence cannot be admitted to vary or alter the terms of a promissory note. See, e.g., Wagner v. Howell Enterprises, 184 Ga. App. 394 (1) (361 SE2d 698) (1987). It follows that the trial court erred in denying the appellant’s motion for summary judgment.

Judgment reversed.

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

Decided July 11, 1988.

Christine C. Daniel, for appellant.

Ernest H. Woods III, for appellee.


text:
    76184.
    EASLEY v. CLEMENT.
    (371 SE2d 416)
   Benham, Judge.

In 1985, appellee Clement brought an action against appellant Easley concerning the sale of an airplane by Easley to Clement. That suit terminated in appellant’s favor in June 1986. In October 1987, appellant brought an action against appellee, alleging malicious use of process; violation of OCGA § 9-15-14; and that appellee had acted maliciously, in bad faith, and had been stubbornly litigious in pursuing the earlier action. Through his complaint, appellant sought attorney fees, special damages, the costs of the earlier litigation as well as of the present lawsuit, and punitive damages. The trial court granted appellee’s motion for summary judgment, and appellant filed this appeal.

1. In the first count of his October 1987 complaint, appellant sought damages for appellee’s alleged malicious use of process in filing and prosecuting the 1985 action. Appellee moved for summary judgment on the ground that appellant’s allegations failed to state a cause of action since the Supreme Court had abolished the cause of action known as malicious use of process in its decision in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The trial court ruled that the applicability of Yost was not determinative of the issue and granted summary judgment to appellee on the ground that appellant had failed to prove special damages, an essential element of the tort of malicious use of process. See Pair v. Southern Bell &c., 149 Ga. App. 149 (253 SE2d 828) (1979). The trial court’s ruling implied that the Yost decision was not applicable to the case at bar and/or that the elements of the Yosi-created “abusive litigation” action were identical to the elements of the abolished common law action for malicious use of process. Inasmuch as we do not agree with either implicit holding, we must reverse the trial court’s grant of summary judgment to appellee on the first count of appellant’s complaint.

Yost requires that a claim for abusive litigation be filed as a compulsory counterclaim or a compulsory additional claim in the underlying proceedings, to be adjudicated by the same factfinder as in the underlying action, in a bifurcated proceeding. Yost, supra, Divisions 14, 15. In the case at bar, the underlying proceeding, the 1985 action filed by appellee against appellant, went to trial on June 9, 1986. A directed verdict was orally granted appellant on June 11, 1986, and the written order and judgment in favor of appellant was entered on June 30, 1986. The Yost decision was rendered on June 25, 1986, after the direction of the verdict but prior to the entry of the written order and judgment.

Retroactive application is necessary to apply the procedural aspects of Yost to the case at bar. This court, however, has refused to so apply Yost. Ostroff v. Coyner, 187 Ga. App. 109 (3a) (369 SE2d 298) (1988). We do likewise. As we stated earlier Yost requires that an allegation of abusive litigation (formerly malicious use and abuse of process) be filed as a compulsory counterclaim or additional claim in the underlying action. Yost at Division 14. A compulsory counterclaim must be contained in a pleading and is defined as “any claim which at the time of serving the pleading the pleader has against any opposing party. . . .” OCGA § 9-11-13 (a). (Emphasis supplied.) While a party has a right to amend his pleading as a matter of course and without leave of court (OCGA § 9-11-15 (a)), that unfettered right ends upon the entry of a pretrial order (OCGA § 9-11-15 (a)) or, in the absence of a pretrial order, upon the commencement of the trial proper and the taking of evidence. Jackson v. Paces Ferry Dodge, 183 Ga. App. 502 (1) (359 SE2d 412) (1987). Thus, appellant’s unfettered right to amend his answer to appellee’s 1985 complaint in order to include a compulsory counterclaim alleging abusive litigation ended upon the commencement of the trial on June 9, 1986, several weeks before the tort of abusive litigation came into being. See Ostroff v. Coyner, supra, Division 3 (a). Furthermore, the five-day period between the Yost decision and the entry of judgment on the directed verdict in this case presented no realistic opportunity for appellant to present a compulsory counterclaim, since he did not have the right to file a compulsory counterclaim at that point in the proceedings. Since, due to the sequence of events, appellant was unable to file a Yost counterclaim, he was authorized to file a separate action for malicious use of process. See Ostroff v. Coyner at Division 3 (a).

2. While recognizing that there will be occasions in this post- Yost world for courts to entertain claims of malicious use of process and malicious abuse of process (see Ostroff v. Coyner at Division 3 (a)), this court has applied “the precepts of Yost” to the substantive portion of the malicious abuse or use of process claim. See Ostroff v. Coyner at Division 3 (b); Augusta Tennis Club v. Leger, 186 Ga. App. 440 (4) (367 SE2d 263) (1988). In the case at bar, the trial court granted appellee summary judgment because appellant had, in the trial court’s judgment, failed to prove special damages, a necessary element of malicious use of process. While appellant was procedurally correct in pleading a malicious use of process claim, in light of the precedent established by Ostroff v. Coyner, supra; and Augusta Ten nis Club v. Leger, supra, we must measure the substance of his allegations by applying the precepts of Yost. In applying the Ostroff and Augusta Tennis Club holdings to the case at bar, we are faced with another dilemma: What are the elements of the tort of abusive litigation?

In creating the tort, the Supreme Court held that anyone asserting a claim, defense, or position “with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct . . . shall be liable in tort to an opposing party who suffers damage thereby.” Yost, Division 13. In order to prevail on summary judgment, defendant/appellee Clement had the burden to negate at least one of the essential elements of ábusive litigation. See Tolbert v. Tanner, 180 Ga. App. 441 (2b) (349 SE2d 463) (1986).

Appellant alleged that appellee had brought and prosecuted the 1985 action wilfully and without probable cause, an assertion tantamount to an allegation that appellee’s 1985 action was without substantial justification. Appellee presented no evidence to disprove appellant’s allegation. Appellant alleged that he had suffered damage as a result of appellee’s act of filing and prosecuting the 1985 action. While appellant is unable to recover attorney fees and expenses of litigation under Yost (see Yost, Divisions 9, 10), he alleged that he had incurred over $5,000 “special” damages in the loss of business and travel expenses brought about by appellee’s lawsuit. In moving for summary judgment, appellee did not disprove appellant’s alleged loss, but countered with the argument that appellant’s loss of business and travel expenses did not constitute the special damages required to support a claim for malicious abuse of process. A Yost plaintiff, however, need only prove he was damaged by an opposing party’s substantially groundless or vexatious action. Yost, Division 13. Since appellee failed to prove on motion for summary judgment that appellant was not damaged by appellee’s action of filing and pursuing the 1985 action, it was inappropriate to grant appellee summary judgment on this count.

3. In the second count of his complaint, appellant asked the trial court to assess attorney fees and the costs of litigation against appellee because appellee’s earlier suit against appellant allegedly was without substantial justification and had been brought for purposes of harassment. See OCGA § 9-15-14. Pointing out that appellant had made a motion based on OCGA § 9-15-14 in the earlier suit after the entry of judgment in favor of appellant, appellee sought summary judgment in the present action based upon the principle of res judicata.

Decided June 9, 1988

Rehearing denied July 12, 1988

James W. McKenzie, Jr., for appellant.

Donald R. Anderson, for appellee.

Section 3 of the Act that promulgated OCGA § 9-15-14 stated that the provisions of OCGA § 9-15-14 applied to any action filed on or after July 1,1986, and to any claim, defense, or other position first raised on or after July 1, 1986, in any action pending on July 1, 1986. Ga. L. 1986, Sec. 3, p. 1593. The earlier lawsuit was filed prior to July 1,1986, but it was no longer pending in the trial court on July 1,1986, since the judgment based upon the directed verdict in favor of appellant was filed June 30, 1986. Thus, appellant did not have then and does not have now a remedy under OCGA § 9-15-14. See Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 356 (358 SE2d 874) (1987). Appellant’s theory that his motion was timely under OCGA § 9-15-14 (e) does not withstand the fact that, under the enabling legislation, no part of OCGA § 9-15-14 is applicable to this lawsuit which was filed prior to July 1, 1986, and was not pending on July 1, 1986. The trial court did not err in granting summary judgment to appellee on the second count of appellant’s complaint.

4. In the third and final count of his complaint, appellant sought reasonable attorney fees and the expenses of pursuing the present action due to appellee’s allegedly malicious and bad faith act of filing the earlier lawsuit and his alleged stubborn litigiousness in pursuing the earlier action.

“It is clear from the complaint that appellant’s prayer for attorney fees and costs of the case at bar is based upon allegations of bad faith and [malice and stubborn litigiousness] which do not arise out of the instant action but, rather, are premised upon [the earlier lawsuit]. Since the recovery of such expenses of litigation pursuant to OCGA § 13-6-11 may not be had where such expenses do not arise out of the present action, the trial court properly [granted summary judgment to appellee on this count].” Alston v. Stubbs, 170 Ga. App. 417 (1) (317 SE2d 272) (1984).

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge.

text:
    76216.
    JOHNSON v. THE STATE.
    (371 SE2d 419)
   McMurray, Presiding Judge.

Defendant appeals his convictions of two counts of rape, two counts of armed robbery, aggravated sodomy, criminal attempt to commit aggravated sodomy, burglary and criminal attempt to commit rape. Held-.

1. Defendant’s first enumeration contends the trial court erred in allowing a fingerprint examiner of the State Crime Laboratory to testify, arguing that the State failed to comply with his request under OCGA § 17-7-211 to produce the results of any scientific tests 10 days prior to trial. This contention is without merit.

Defendant filed a Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), motion requesting “[t]he results of any scientific analysis or other tests, experiments, or studies made in connection with this case or copies of same.” This motion was insufficient to invoke the requirements of OCGA § 17-7-211. Massey v. State, 251 Ga. 515, 516 (2) (307 SE2d 489).

2. Next, defendant contends the trial court erred in charging that “a person commits the offense of burglary when without authority he enters any building or dwelling of another in any room or any part thereof with intent to commit a theft therein.” Defendant argues that this instruction was erroneous because he was indicted for burglary by entering, without authority, the victim’s “dwelling house” with the “intent to commit a felony, to wit: RAPE therein . . .”

An examination of the record reveals that, upon defense counsel’s objection, the trial court reinstructed the jury as follows: “Members of the jury, ... I didn’t mean to mislead you. I didn’t mean to give you the law improperly, but I want to define burglary again to you so that you will understand what the offense of burglary is. Our law says that a person commits the offense of burglary when without authority he enters any building or dwelling house of another or any room or part thereof with the intent to commit a felony therein. Members of the jury, rape is a felony. A felony is defined as any offense for which a person could be sentenced to a term of more than twelve months in the penitentiary.”

Defendant contends that the clarifying instruction was insufficient because the trial court failed to withdraw the prior erroneous instruction on burglary. See Salisbury v. State, 221 Ga. 718 (2) (146 SE2d 776). We do not agree. The trial judge’s instruction that he “didn’t mean to mislead [the jury by giving] the law [on burglary] improperly . . .” was sufficient to place the jury on notice that the previous charge was superseded by the clarifying instruction. Further, even though the trial court gave an inapplicable instruction on the law of burglary, we find no harm to defendant since the trial court’s clarifying instruction on burglary was properly adjusted to the circumstances of the case sub judice and since it is highly unlikely that the inapplicable charge confused the jury. “[A]n inapplicable charge is not cause for a new trial where it is not prejudicial to the accused. Garner v. State, 174 Ga. App. 628, 630 (4) (330 SE2d 750) (1985).” Durham v. State, 181 Ga. App. 155, 157 (4), 158 (351 SE2d 683). This enumeration is without merit.

3. In his third enumeration of error, defendant contends the trial court erred in its charge on criminal attempt as this charge was “incomprehensible . . . as it left the jury with no guidance whatsoever in determining whether the defendant was guilty of criminal attempt to commit sodomy, aggravated sodomy, or rape.” As the trial court, during its charge, fully instructed the jury on aggravated sodomy and on rape and also instructed on criminal attempt, we find it highly unlikely that the jury was unable to determine whether defendant was guilty of the attempt to commit each of these crimes as charged. “ ‘The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. (Cits.) . . .’ Bowles v. State, 168 Ga. App. 763, 765 (4) (310 SE2d 250) (1983).” Turner v. State, 178 Ga. App. 888, 889 (3), 890 (345 SE2d 99).

4. In his fourth enumeration of error, defendant contends the trial court erred in failing to grant his motion for a mistrial after “the District Attorney, during closing argument, implored the jury to return a guilty verdict for the benefit not only of the victims in the case, but also for the community and the county.” We do not agree.

“ ‘A solicitor general may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard. See 23A CJS 202, Criminal Law, § 1107; 53 AmJur 371, Trial, § 465.’ Terhune v. State, 117 Ga. App. 59, 60 (159 SE2d 291).” Chambers v. State, 134 Ga. App. 53, 54 (4) (213 SE2d 158). “ ‘Flights of oratory and false logic do not call for mistrials or rebuke. It is the introduction of facts not in evidence that requires the application of such remedies.’ Patterson v. State, 124 Ga. 408, 409 [(52 SE 534)].” Chambers v. State, 134 Ga. App. 53 (4), 55, supra. In the case sub judice, the remark complained of by defendant did not require the trial court’s rebuke of counsel nor was it grounds for a mistrial. See William W. Daniel’s, Ga. Criminal Trial Practice, (1986 ed.), §§ 23-5 thru 23-7.

5. We have reviewed the entire trial transcript and find that the evidence adduced at trial was more than sufficient to authorize defendant’s convictions of the offenses of two counts of rape, two counts of armed robbery, aggravated sodomy, burglary, criminal attempt to commit aggravated sodomy and criminal attempt to commit rape under the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided June 13, 1988

Rehearing dismissed July 12, 1988.

Daniel J. Craig, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.