text:
    A89A1303.
    DAIRYLAND INSURANCE COMPANY v. GAY et al.
    (386 SE2d 909)
   Sognier, Judge.

Dairyland Insurance Company brought this declaratory judgment action against Kenneth Gay seeking a determination of its obligations as the purported liability insurer of Gay’s automobile. Miles Rich Chrysler/Plymouth’s motion to intervene was granted. The trial court denied Dairyland’s motion for summary judgment and we granted its application for interlocutory appeal.

The record reflects that Gay purchased his automobile from Miles Rich Chrysler/Plymouth on June 24, 1987. At the same time Gay also purchased what was purported to be automobile insurance from Fred Heller, a salesman at the dealership. The sales contract, included in the record, indicates that appellant was the insurance company, that one “Vickie Lyons” was the insurance broker, giving her address and phone number, and sets forth the purported number of the insurance policy. It is uncontroverted that Heller, who was not a licensed insurance agent, kept the premium payments made by Gay. It is also uncontroverted that appellant had no knowledge of Heller or Gay and never received any application forms nor issued any policy of insurance to Gay. As of October 22, 1987, the date of the automobile accident in which Gay incurred the damages for which he sought payment from appellant, Gay had received no policy, bills, or any other direct correspondence of any type from appellant.

Appellant submitted the affidavit of its branch manager, William Schuelke, who averred that Heller was “not an agent, broker, or representative of [appellant] and was not authorized to transact any business on [appellant’s] behalf. He was not and never has been authorized to take or complete applications on behalf of [appellant] or submit any applications to [appellant].” Appellant also submitted the affidavit of Elzie Speir, the manager of the Cannon Insurance Agency and the former employer of insurance agent Vickie Lyon, who stated that on the purchase date of the purported insurance, Lyon (misspelled “Lyons” in the affidavit) was not an agency employee; that Heller was not and had never been an agency employee; and that the agency never solicited Gay’s business nor received any application for insurance on his behalf. Speir also stated he had given Lyon certain supplies with appellant’s name printed on them as examples to assist her in opening her own insurance agency, but averred that “[o]ur supplies were to be used only if we quoted and approved an applicant, but we never did and we never saw them again.”

In her deposition, Lyon stated that she was a licensed insurance agent and had worked for Cannon Insurance Agency, but had left the agency several months before the incident in issue. She stated that Heller contacted her about working for him in an insurance agency he was starting and that she and Heller went to Speir’s office in the spring of 1987. She stated that at that time Speir gave Heller various forms, including blank application forms, for setting up the business, and that it was her understanding that “Heller was brokering through Mr. Speir,” meaning that Heller had Speir’s permission to write insurance policies with the companies, including appellant, that Speir represented. Lyon stated that it was “understood and agreed” that Heller and she “were supposed to turn in any applications or money, whether it be cash or check, to Mr. Speir within a 24 hour period.”

Lyon testified that she had never talked to anyone at Miles Rich about binding automobile insurance coverage for Gay or anyone else. She stated she had never seen the sales contract before, that unlike the “Vickie Lyons” referenced in the contract there was no “s” on her last name, that the address and phone number thereon were not hers, and that the policy number in the sales contract did not represent a valid binder number. She testified that she had never met or spoken with Gay and that she had never authorized Heller to represent her, to take any action on her behalf, or to use her name. She also stated she never received any money or commissions from Heller or paid him any money for any reason.

Appellant argues that because the evidence is uncontroverted that Heller was not appellant’s agent, broker, or representative, no question of fact remains for jury consideration and it was entitled to summary judgment in its favor, citing OCGA § 10-6-5 and Henry v. Dairyland Ins. Co., 186 Ga. App. 250 (366 SE2d 799) (1988). Although OCGA § 10-6-5 provides that “an agent may not delegate his authority to another unless specially empowered to do so,” even construing Schuelke’s affidavit as establishing appellant never empowered Speir or Cannon Insurance Agency to delegate authority to Heller, case law has applied this statute in insurance agency situations in a manner adverse to appellant. In a case involving whether the knowledge of an insurance agent’s clerk could be imputed to the insurance company, the Supreme Court noted that “[a] principal may expressly authorize his agent to appoint a subagent, and under some circumstances authority to appoint a subagent between whom and the principal a privity of contract will exist may be implied. Instances of an agent’s implied authority to appoint a subagent may be found in cases where from the conduct of the parties to the original contract of agency, or from the nature of the particular business which is the subject of the agency, or where substitution is authorized by general custom or usage, or where substitution is authorized by necessity, it may reasonably be presumed that the parties to the original contract of agency contemplated that such authority should exist. [Cit.]” Springfield Fire &c. Ins. Co. v. Price, 132 Ga. 687, 692 (64 SE 1074) (1909).

The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. Gilbert v. Jones, 187 Ga. App. 303, 304 (370 SE2d 155) (1988). “[T]he papers of the movant are carefully scrutinized while those of the opposing party are treated with considerable indulgence. [Cit.] Additionally, we recognize the opposing party is given the benefit of all favorable inferences that may be disclosed from the evidence [Cit.] There is also the rule that the evidence must be construed most favorably to the party opposing the motion for summary judgment even though the testimony may be vague and contradictory. [Cit.]” Gregory v. Vance Pub. Corp., 130 Ga. App. 118, 120 (2) (202 SE2d 515) (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 653 (1) (334 SE2d 188) (1985). Nothing in the evidence adduced by appellant in support of its motion addresses the nature of its relationship with Speir and Cannon Insurance Agency in regard to the creation, express or implied, of subagents. Construing Lyon’s deposition testimony most favorably toward appellees as respondents, it is apparent that a conflict exists between Speir’s affidavit and Lyon’s testimony regarding the perceived relationship between Heller and Speir and that questions of fact exist whether Speir, as appellant’s agent, gave Heller the supplies and application forms with appellant’s name affixed, thereby arguably conferring on Heller the apparent authority upon which Gay relied. See Interstate Fin. Corp. v. Appel, 134 Ga. App. 407, 410-411 (1) (215 SE2d 19) (1975). The issues surrounding the subagency aspect raised by these facts and the conflicting evidence concerning to whom Speir gave appellant’s forms distinguish the case at bar from Henry, supra.

Therefore, since appellant has not satisfied its burden of showing the absence of any material disputed fact, see generally Edge v. Stephens, 172 Ga. App. 759, 760 (324 SE2d 579) (1984), we find no error in the trial court’s denial of appellant’s motion for summary judgment. See generally Allis-Chalmers Credit Corp. v. McGill, 130 Ga. App. 39 (202 SE2d 270) (1973).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided September 28, 1989.

Eason, Kennedy & Associates, Carolyn J. Kennedy, Richard B. Eason, Jr., for appellant.

Joe A. Weeks, Stanley W. Levitt, for appellees.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A1457.
    RYALS v. THE STATE.
    (387 SE2d 33)
   Sognier, Judge.

Earl Douglas Ryals was convicted of the offense of cruelty to a child, and he filed this appeal.

At trial, the mother of the two and one-half year old victim, her son, Quinton, testified that they spent the night of January 8, 1988, with appellant, with whom she had a romantic relationship. Appellant took her to work the next morning shortly after 7:00 a.m., and she left her son, who was healthy at the time, in appellant’s care. Appellant testified that he dressed and fed Quinton, but when Quinton vomited twice appellant “react[ed] emotionally” and struck the child three times with his hand, causing the child to hit his head against the bathroom door. Appellant stated that he harbored no malice toward Quinton and had not intended to hurt him. In the statement appellant gave the deputy sheriff shortly after his arrest, which was read into evidence, appellant admitted hitting Quinton, and stated he telephoned an ambulance when he realized Quinton was having difficulty breathing. The emergency medical technicians who responded to appellant’s call testified that when they arrived at appellant’s residence, they found Quinton lying on the couch and appellant wiping his forehead with a washcloth, and that the child was unresponsive. Dr. Jeff Gunderson, the emergency room treating physician, testified that when he examined Quinton the child had visible head trauma with bruises and contusions over much of his body, and upon examination was found to have suffered a cerebral contusion. Dr. Gunderson stated that in his opinion the injuries were the result of “obvious child abuse” consisting of multiple forcible blows.

1. Appellant first contends the trial court erred by instructing the jury that he was being tried for a felony offense, thereby impermissibly commenting as to the possible sentence before the jury had deliberated.

The transcript reveals that at the beginning of the instructions to the jury the trial judge stated that appellant was “charged with the offense of cruelty to children, a felony.” Although “[i]t is improper for the court to give any instruction to the jury concerning possible sentences in a felony case before the jury has determined the question of guilt or innocence [cits.],” Ford v. State, 232 Ga. 511, 519 (14) (207 SE2d 494) (1974), we find no reversible error here because the judge’s statement did not infer or intimate that appellant was guilty or indicate to the jury the sentence he would receive if convicted. See generally Harris v. State, 234 Ga. 871, 873 (218 SE2d 583) (1975). Further, the court sent the indictment to the jury room as is the practice in this State, Salem v. State, 228 Ga. 186, 188 (5) (184 SE2d 650) (1971), and the charged crime was characterized as a felony on the face of the indictment.

Decided September 28, 1989.

Lane & Tucker, Alan D. Tucker, Robert L. Crowe, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

2. Appellant also contends the evidence against him was solely circumstantial, and thus the trial court erred by failing to charge the jury regarding the proof required to convict on circumstantial evidence as provided in OCGA § 24-4-6 even though no written request to so charge was made.

“Where the case against the defendant is close or doubtful and is composed solely of circumstantial evidence, it is reversible error for a trial court to fail to charge [OCGA § 24-4-6]. [Cit.] ” Jones v. State, 243 Ga. 584, 585 (1) (255 SE2d 702) (1979). Here, however, the medical evidence and appellant’s statements to the deputy sheriff and his trial testimony were direct, not circumstantial evidence. Id. While we agree with appellant that incriminating admissions are circumstantial^ evidence, whereas confessions are direct evidence, see Harvey v. State, 111 Ga. App. 279 (1) (141 SE2d 604) (1965), we do not agree that appellant’s statement to authorities must be characterized as an incriminating admission. Although he testified at trial he did not intend to hurt the victim, the statement he gave the deputy sheriff contained no “ ‘facts or circumstances which show[ed] excuse or justification,’ ” Robinson v. State, 232 Ga. 123, 126 (205 SE2d 210) (1974), and thus constituted direct evidence as a confession. See id.; compare Harvey, supra at 280 (5). Moreover, as the case against appellant was neither close nor doubtful, we find no error, and accordingly decline appellant’s invitation to review this enumeration pursuant to OCGA § 5-5-24 (c).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1507.
    LAMB v. THALIMER ENTERPRISES, INC. et al.
    (386 SE2d 912)
   Sognier, Judge.

Thalimer Enterprises, Inc., and Daniel Thalimer obtained a judgment against Donald Lamb and Redi-Ticket Travel Corporation, and then filed an affidavit of garnishment in Clayton County, naming Trust Company Bank of Clayton County (hereinafter the “Bank”) as garnishee. Carol Lamb, Donald Lamb’s estranged wife, became a party to the garnishment action upon filing a claim pursuant to OCGA § 18-4-95. We authorized Carol Lamb’s discretionary appeal from an order of the trial court holding that the entire sum deposited with the Bank in a joint account owned by Lamb and her husband, Donald Lamb, was subject to garnishment.

At the hearing Donald Lamb testified that in 1985 or 1986 he opened a money market account at the Bank to use as an escrow account for his business, Travel Agents International. Appellant was added as a signatory to the account (hereinafter the “joint account”) in April 1986, and she acquired the business from Lamb in October 1987. Both she and Lamb testified that the joint account was used solely for the deposit of business funds, and that Lamb had no personal funds in the joint account after the sale of the business to appellant. Appellant filed for divorce in Clayton County on May 11, 1988. On July 29, 1988, appellant and Lamb sold their Fayette County residence and received a joint check in the amount of $29,526.69, which was deposited in the joint account. Both appellant and Lamb testified that appellant owned all of the equity in the house and thus was entitled to the entire proceeds from the sale, and that the check received at closing, which was payable to them jointly, was deposited in the joint account so that appellant could earn money market interest on the sum until she decided upon the ultimate disposition of the money. Evidence also was adduced that on the day of the closing Lamb wrote a check for $20,000 on the joint account, which he testified he did to purchase certificates of deposit for appellant, but the check was dishonored by the Bank.

The record also reveals that on June 9, 1988 appellees obtained a judgment against Lamb and Redi-Ticket Travel in DeKalb County State Court in the amount of $33,738.36, and a fi. fa. was issued on June 10th and recorded in the Fayette County general execution docket on June 29th. Appellees filed their affidavit of garnishment with the Bank as garnishee on July 26, 1988, and after appellant asserted she had a claim superior to that of appellees the Bank deposited the balance of the joint account, $29,695.75, into the registry of the court. After an evidentiary hearing the trial court found that the joint account contained funds from the sale of the residence of appellant and Lamb, that the check given at the closing was endorsed by both parties, and thus the joint account was “joint and several” so that the garnishment was proper against all funds in the account.

1. Appellant contends the trial court erred by failing to apply the provisions of OCGA § 7-1-812 (a) which provides: “[a] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” “Net contribution” of a party is defined as “the sum of all deposits [to the joint account] made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party,” OCGA § 7-1-810 (6), and “party” “means a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. . . . Unless the context otherwise requires, it includes a[n] . . . assignee, including an attaching creditor, of a party.” OCGA § 7-1-810 (7). Application of OCGA § 7-1-812 (a) is limited to “controversies between [parties] and their creditors.” OCGA § 7-1-811.

In the case at bar, the trial court found that the proceeds from the sale of the house appellant and Lamb jointly owned comprised the funds deposited in the joint account, and the parties on appeal do not contest that finding. Instead, appellant contends the trial court erred by failing to attribute half of that sum to her as her net contribution as required by OCGA § 7-1-812 (a). We agree with appellant that OCGA § 7-1-812 (a) should be applied to determine the extent to which appellees are entitled to garnish the funds in the joint account because the garnishment arose out of a dispute between a party to the account, Lamb, and his creditors, appellees. See OCGA § 7-1-811. We also agree with appellant that if there is no evidence of a contrary intent, given the findings of fact made by the trial court half of the amount in the joint account should be distributed to her. See Anderson v. First Nat. Bank, 151 Ga. App. 573, 574 (260 SE2d 501) (1979). Contrary to appellees’ argument, we do not read the description of “withdrawals” in the definition of “net contribution” (OCGA § 7-1-810 (6)) as including payment to appellees in response to their affidavit of garnishment because the statute refers only to withdrawals “made by or for” the party whose net contribution is being determined, and no payments were made or were required to be made to appellees by or for appellant. Nor was there any assignment by Lamb to appellees of any rights to the funds in the joint account so as to entitle appellees to the rights of a party as provided in OCGA § 7-1-810 (7). Compare Copeland v. Peachtree Bank &c. Co., 150 Ga. App. 262, 263 (2, 3) (257 SE2d 353) (1979). However, we cannot determine from either the transcript of the hearing or the order entered below whether the trial court applied OCGA § 7-1-812 (a), as there are no findings of fact on the question, posed by the statute, of whether there was “clear and convincing evidence of a different intent” on the part of appellant and her husband to allocate the funds in any manner other than by an even division, nor was the statute cited. Accordingly, we vacate the lower court’s order and remand this action with direction that the court determine whether there is clear and convincing evidence that the net contribution of appellant to the joint account was less than half of the total amount deposited, and then allocate the sums according to the mandate of OCGA § 7-1-812 (a).

Decided September 28, 1989.

Harry A. Osborne, for appellant.

Wall & Noonan, Barbara B. Barker, W. Alford Wall, John M. McCarter, for appellees.

2. In the lower court proceeding, the purchasers of the Lambs’ house were added as parties and raised an equitable claim to the funds in the joint account. The purchasers have not appealed from the trial court’s ruling, but appellees contend they also have an equitable defense to appellant’s claim. They assert that as appellant signed an affidavit at the house closing stating there were no lawsuits pending against her or Lamb even though she had filed for divorce two months earlier, pursuant to OCGA § 23-1-14 as between appellant and appellees, appellant should bear the loss. Even assuming this defense was properly raised below, as the record is devoid of any evidence that appellees relied on the representations made by appellant at the closing, appellees are not entitled to avail themselves of OCGA § 23-1-14. See Braselton Bros. v. Better &c. Prods., 113 Ga. App. 382, 384-385 (1) (148 SE2d 71), rev’d on other grounds, 222 Ga. 472 (150 SE2d 620) (1966).

Judgment vacated and case remanded with direction.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A1662.
    HUGHES v. HUGHES.
    (387 SE2d 29)
   Banke, Presiding Judge.

This case originated as an action by the appellee for an equitable partitioning of certain real estate. The appellant filed a counterclaim alleging that the appellee was wrongfully withholding certain personal property belonging to him and seeking either the return of that property or damages for its alleged conversion. The real estate which was the subject of the appellee’s partitioning claim was sold pursuant to a consent order, and the proceeds were distributed to the parties. Thereafter, the trial court dismissed the appellant’s counterclaim for lack of subject matter jurisdiction, concluding that, because the appellee had previously been directed by a Florida court to turn over the property in question to the appellant, and because that order (which had been entered in a contempt proceeding stemming from the parties’ divorce) had not been domesticated in this state, the conversion claim constituted an impermissible attempt by the appellant to enforce an undomesticated foreign judgment. This appeal followed. Held:

The superior courts of this state clearly have subject matter jurisdiction to entertain conversion actions. See generally Art. VI, Sec. IV, Par. I, Ga. Const, of 1983. Assuming arguendo that the Florida contempt order could be directly enforced in this state pursuant to domestication proceedings instituted in accordance with OCGA § 9-12-130 et seq., it does not follow that the appellant was required to undertake such domestication proceedings as a condition precedent to bringing a conversion action in this state based on his alleged ownership of the property. Cf. Dunlap v. Pope, 177 Ga. App. 539 (339 SE2d 662) (1986) (holding that the state courts are not divested of jurisdiction “over trover or conversion actions in which the alleged trover or conversion results from the defendant’s retention of property awarded to the plaintiff in a final divorce decree.”).

The appellee’s reliance on Starling v. Starling, 214 Ga. 786, 788 (1) (107 SE2d 651) (1959), for the proposition that the respondent in a partitioning proceeding cannot counterclaim to recover a personal judgment on a separate and independent matter is misplaced, inasmuch as that case was based on the law as it existed prior to the Civil Practice Act. Pursuant to Rule 18 of the CPA, OCGA § 9-11-18, “[a] party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.” See generally Continental Ins. Co. v. Mercer, 130 Ga. App. 339 (1) (203 SE2d 297) (1973).

We reject the appellee’s theory that her petition for an equitable partitioning was an in rem proceeding which did not subject her to the personal jurisdiction of the trial court. The appellee’s original action was both styled and pursued as an action to obtain relief against the appellant personally, and she will not now be heard to complain that she is inconvenienced by having to defend against the appellant’s counterclaim in his county of residence rather than in the state and county of her residence. See generally Henderson v. Kent, 158 Ga. App. 206 (1) (279 SE2d 503) (1981).

Judgment reversed.

Sognier and Pope, JJ., concur.

Decided September 28, 1989.

B. Daniel Dubberly III, for appellant.

Glen A. Cheney, Michael L. Chidester, for appellee.


text:
    A89A1867.
    SCOTT v. THE STATE.
    (387 SE2d 31)
   Banke, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute. He contends on appeal that the trial court erred in refusing to suppress the contraband on which the conviction was based.

Captain Waters of the Valdosta Police Department testified that around 9:30 or 10:00 p.m. on January 27, 1989, he received a telephone tip that three people were standing in front of a house on Jackson Street engaged in a drug transaction. Waters described Jackson Street as “a known area for drug activity” and stated that the house in question was known to be one “where drug deals ... go down.” In response to the call, he collected two other officers, proceeded down Jackson Street in an unmarked patrol car, and observed the appellant and two other individuals standing together in front of the house. Waters testified that the three men split up upon spotting the patrol car and that at least one of them fled. The appellant, however, did not flee but simply began walking across the street with his hand in his pocket. Waters ordered him to halt and to remove his hands from his pockets, and the appellant complied. The officer then conducted a pat down search of the appellant’s person and, feeling a matchbox in his pocket, removed it and opened it, explaining at trial that in his experience matchboxes were “known place [s] where razor blades are kept” by drug users for the purpose of cutting up “crack.” The cocaine on which the present prosecution was based was found inside the matchbox. Held:

1. In State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989), we recently upheld a search conducted under circumstances similar to those in the present case, based on a determination that probable cause existed for the defendant’s arrest on drug possession charges even before the search was conducted. The arresting officer in that case was on routine patrol at approximately 2:30 a.m., in an area of Valdosta characterized by him as a “highly drug populated area,” when he observed the defendant standing on the sidewalk conversing with another man. The two “broke and ran” upon seeing the patrol car, whereupon the officer chased after the defendant on foot and apprehended him. The officer then conducted a pat down search of the defendant’s person and seized from his pocket a film canister containing cocaine. We held that “in the context of the time of day and the location, the [defendant’s] flight from the officer provided probable cause for a belief that he was in possession of unlawful contraband, with the result that the search was authorized as a search incident to a valid arrest.” Id. at 835.

Decided September 28, 1989.

William R. Folsom, for appellant.

The present case is, of course, distinguishable from Billoups in that the appellant here did not attempt to flee upon spotting the police. However, at least one of his companions did attempt to flee; and it has been held that, for the purpose of determining whether probable cause exists for an arrest, the flight of a companion under such circumstances may be considered indicative of the guilt of the defendant. See Brown v. State, 190 Ga. App. 38, 40 (378 SE2d 357) (1989); Muckle v. State, 165 Ga. App, 873, 875 (303 SE2d 54) (1983). Cf. Mendez v. State, 185 Ga. App. 1, 2 (3) (363 SE2d 262) (1987). The present case is also distinguishable from Billoups in that the confrontation at issue here occurred at approximately 10:00 p.m. rather than at 2:30 a.m. However, while the occurrence of furtive activity on a street corner at 10:00 p.m. may not be as suspicious as similar activity occurring at 2:30 a.m., we note that in the present case the appellant and his companions were standing directly in front of a house in which drug transactions were known to occur and that they were observed doing so immediately after the police had received a telephone tip that a drug deal was in progress at precisely that location. We conclude that these circumstances, combined with the immediate dispersal of the men and the flight of at least one of them upon seeing the police, were sufficient to establish probable cause for a belief that the appellant was either in possession of unlawful contraband or was a party to such possession by one or more of his two companions. We accordingly hold that the search of his person was authorized as a search incident to arrest, with the result that the trial court did not err in denying his motion to suppress.

2. Having determined that probable cause existed for the appellant’s arrest, we do not reach the issue of whether, had the circumstances warranted merely a limited Terry type detention rather than a full-scale arrest of the appellant, the seizure of the matchbox and the examination of its contents would have been permissible as a protective search for weapons.

Judgment affirmed.

Pope, J., concurs. Sognier, J., concurs in judgment only.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.


author: Carley, Chief Judge.

text:
    A89A0851.
    FITZGERALD v. THE STATE.
    (386 SE2d 914)
   Carley, Chief Judge.

Appellant was indicted for two counts of child molestation and three counts of aggravated child molestation. The jury returned guilty verdicts only as to two of the counts of aggravated child molestation. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The inconsistent verdict rule has been abolished in criminal cases and an enumeration predicated upon this abolished rule is without merit. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

2. Appellant enumerates the general grounds.

The two counts of aggravated child molestation for which appellant was convicted involve forcing his own minor stepdaughter to perform acts of oral sodomy on him. Accordingly, the lack of medical evidence to corroborate the victim’s molestation is in no way exculpatory of appellant. Moreover, “[t]here is no requirement that the testimony of the victim of child molestation be corroborated. [Cit.]” Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988). We find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The State’s failure to call as one of its witnesses the physician who examined the victim for physical signs of abuse is enumerated as error.

“There is no requirement that the State call more witnesses than it needs to present its case. [Cits.] Under the circumstances [appellant] could have subpoenaed this witness. . . . The State has not withheld evidence favorable to [appellant] inasmuch as [the physician’s report was produced before trial].” Moore v. State, 155 Ga. App. 149, 151-52 (3) (270 SE2d 339) (1980).

4. Appellant’s motion for an independent psychological examination of the victim by a child abuse specialist was denied by the trial court. The trial court correctly concluded that the consent of the victim’s parents was necessary to authorize such an independent psychological examination. See Dover v. State, 250 Ga. 209, 211 (2) (296 SE2d 710) (1982). Thereafter, the State offered to inquire whether the mother would consent to the independent examination. No further order was entered by the trial court.

The State did not inform appellant prior to trial whether it had made the promised inquiry of the victim’s mother. However, the record also reflects that appellant made no pre-trial effort to determine whether any inquiry had been made and, if so, whether the victim’s mother consented to an independent examination. Accordingly, an enumeration of error addressed to the State’s failure to make the inquiry of the victim’s mother is without merit. “Counsel cannot sit by and permit some matter they could correct by timely action and later claim error.” Harris v. State, 237 Ga. 718, 726 (6) (230 SE2d 1) (1976).

5. Appellant enumerates as error the trial court’s purported allowance of “too much hearsay” into evidence.

Several witnesses testified to statements made by the victim, a child under the age of 14 years, wherein she described acts of sexual contact performed with or on her by others, one of whom she identified as appellant. The record reflects that the trial court found sufficient indicia of reliability from the circumstances of the statements. The victim herself testified at trial and was cross-examined. The trial court did not err in admitting any of these statements over appellant’s hearsay objection. See OCGA § 24-3-16; Reynolds v. State, 257 Ga. 725 (363 SE2d 249) (1988).

Appellant’s further contention that this hearsay evidence impermissibly bolstered the credibility of the victim will not be addressed. Such an objection was not timely raised, in the trial court. “Where error is raised first in a motion for new trial or before this court, nothing is presented for review. . . . [Cits.]” Leonard v. State, 146 Ga. App. 439, 440 (1) (246 SE2d 450) (1978).

6. The State presented the testimony of the 15-year-old former baby-sitter of appellant’s children. Over appellant’s objection, the trial court permitted this witness to relate that, three years previously, while appellant was driving her home, he placed his hand on her knee and moved it up toward her upper thigh.

Contrary to appellant’s assertions, this testimony showed his previous commission of a crime. See Ables v. State, 156 Ga. App. 678 (275 SE2d 750) (1980). The probative value of this testimony outweighed its prejudicial impact. “ ‘[I]n sexually oriented offenses, evidence of prior acts is admissible to show lustful disposition and to corroborate the testimony of the victim as to the acts charged.’ [Cits.]” Evans v. State, 180 Ga. App. 1, 2 (3) (348 SE2d 561) (1986).

7. The admission of a witness’ testimony regarding appellant’s commission of another similar prior act is enumerated as error. Appellant’s contention is that he was not given the written notification required by Rule 31.1 of the Uniform Superior Court Rules (USCR).

The record shows that the witness did not testify on direct examination as to any similar prior conduct. Instead, the record reflects that the testimony was given in response to a question posed by appellant during cross-examination of the witness. Thus, error, if any, was self-induced and provides no basis for reversal. Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).

8. Appellant enumerates as error two more instances of the admission of testimony regarding his commission of prior similar acts. Again, appellant’s contention is that he was not provided proper notice under the USCR.

In one of the instances, appellant moved for a mistrial. The trial court denied the motion, but offered to give curative instructions. Appellant declined the trial court’s offer. We find no error. See Riley v. State, 181 Ga. App. 667, 669 (2) (353 SE2d 598) (1987).

The second instance occurred as the result of appellant’s cross-examination of one of the State’s witnesses. Again, error, if any, was induced by appellant and affords no ground for reversal of his convictions. Bess v. State, supra at 189 (5).

9. The denial of appellant’s motion for mistrial predicated upon instances of allegedly improper closing argument by counsel for the State is enumerated as error.

Because appellant had produced good character witnesses, counsel for the State argued to the jury that even persons with a good reputation in the community may sometimes have something to hide. Considering the nature of the crimes that appellant was charged with committing, this was not an improper argument to present against appellant’s good character defense. We find no error in denying the motion for mistrial, even though counsel for the State did advance the argument “ ‘ “ ‘with considerable latitude in imagery and illustration. . . .’ [Cit.] What the law forbids is the introduction ... by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair. The language used in argument may be extravagant; but figurative speech is a legitimate weapon in forensic warfare if there are facts admissible in evidence upon which it may be founded. [Cits.] We find the argument of which complaint is made well within the permissible bounds. The prosecutor simply argued the evidence and reasonable inferences arising therefrom and asked the jury to return a verdict of guilty. This he may do.” [Cits.]”’ Hunt v. State, 180 Ga. App. 103, 107 (3) (348 SE2d 467) (1986).

10. Appellant enumerates as error the denial of his right to conduct a thorough and sifting cross-examination of one of the State’s expert witnesses.

The record shows that the only limitation placed on the cross-examination conducted by appellant was that he was not permitted to question the expert using the phrase “false accusation syndrome.” The existence of such a syndrome had been posited in a book authored by two psychologists. An expert witness cannot be cross-examined by the use of a text which has not been shown to be a standard treatise in the area of the witness’ expertise. Mize v. State, 240 Ga. 197, 198 (4) (240 SE2d 11) (1977); State Hwy. Dept. v. Willis, 106 Ga. App. 821, 824 (3) (128 SE2d 351) (1962). Appellant made no showing that the text positing the existence of a “false accusation syndrome” was such a standard treatise. “The defense is entitled to a thorough cross-examination; however, the scope of cross-examination is within the sound discretion of the trial court and will not cause reversal unless the discretion is abused. [Cits.] Under the facts of this case the appellant has failed to show an abuse of discretion. . . .” Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987).

Decided September 29, 1989.

Fredric W. Tokars, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johnstono, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


text:
    A89A1223.
    DEUTZ-ALLIS CREDIT CORPORATION v. PHILLIPS.
    (387 SE2d 34)
   Carley, Chief Judge.

Appellee-defendant is the Sheriff of Miller County. Appellant-plaintiff filed a claim against the bond that was posted by appellee pursuant to OCGA § 15-16-5. Appellee answered and filed a counterclaim for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). With regard to appellant’s main action, the trial court granted summary judgment in favor of appellee and, on appeal, this court affirmed. Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760 (360 SE2d 29) (1987). With regard to appellee’s Yost counterclaim, a jury trial was held. The jury returned a $20,000 verdict in favor of appellee and against appellant. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the denial of its motion for a directed verdict on appellee’s Yost claim.

“Any party who shall assert a claim, defense, or other 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, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby. The term ‘lacks substantial justification’ shall mean substantially frivolous, substantially groundless, or substantially vexatious.” Yost v. Torok, supra at 96 (13).

Based upon our review of the record, there is considerable doubt whether appellee met his burden of proving that appellant engaged in the type of conduct that was rendered actionable in tort by the Supreme Court’s Yost decision. Whether or not appellant had a viable claim against appellee’s bond was an issue of first impression and the mere fact that appellant was ultimately unsuccessful in Deutz-Allis Credit Corp. v. Phillips, supra, does not demonstrate that it engaged in abusive litigation. “[Zjealous favoring of abusive litigation allegations can create a bar to access to the courts for civil litigants. A Yost claim arises under [certain] circumstances. . . . [Appellant’s] allegations and the proof offered in substantiation of its claim [on appellee’s bond] can in no sense be categorized as being completely devoid of any justifiable issue of law or fact. The issues were hardly clearcut and posed a serious question both for the trial court and this court. [Appellant’s] claim cannot be considered as lacking substantial justification or as being interposed for delay or harassment.” Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 796 (4) (359 SE2d 920) (1987).

However, even assuming that appellee did meet his threshold burden of showing that appellant engaged in abusive litigation, it is clear that appellee did not produce sufficient evidence of any recoverable damages. Under Yost, a plaintiff who has been subjected to abusive litigation can recover: “special damages other than attorney fees and expenses of litigation; damages for mental distress, where there is either wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness ([cit.]); or nominal damages pursuant to OCGA § 51-12-4.” (Emphasis in original.) Yost v. Torok, supra at 95 (10). Appellee did not seek nominal damages, and the jury was not instructed as to that element of damages. The case was submitted to the jury only as to the issue of appellee’s recovery of special damages or damages for his emotional distress. A review of the record shows that appellee offered no proof which would authorize a recovery of special damages. Therefore, the $20,000 verdict must be construed as a recovery of damages for appellee’s emotional distress. However, the evidence utterly fails to show appellant’s “wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness. . . .” Yost v. Torok, supra at 95 (10). “The caveat is clear and it is well established that if damages for mental pain and suffering sought under [OCGA] § 51-12-6 are not accompanied by physical or pecuniary loss, recovery is allowed only if the conduct complained of was malicious, wilful or wanton. [Cit.]” Brunswick Gas &c. Co. v. Parrish, 179 Ga. App. 495, 498 (3) (347 SE2d 240) (1986). Since appellee showed only that he suffered emotional distress without also showing that appellant’s conduct was wilful or wanton and reckless as well as tortious, the trial court erred in denying appellant’s motion for directed verdict.

Decided September 29, 1989.

Lambert, Floyd & Conger, T. Harold Lambert, L. Catharine Cox, for appellant.

Ronnie J. Lane, for appellee.

2. Appellant’s remaining enumerations of error are moot.

Judgment reversed.

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


text:
    A89A1319.
    CLEARY v. BURLINGTON INDUSTRIES, INC.
    (387 SE2d 36)
   Carley, Chief Judge.

After filing suit against appellant-defendant, appellee-plaintiff discovered that its attorney would probably have to be called as a witness in its behalf. Appellee then secured the services of another attorney to serve as its counsel and the pre-trial order listed appellee’s original attorney as one of appellee’s witnesses. Appellant objected when appellee did call its original attorney as its first witness at trial, urging a lack of competency to serve as a witness on appellee’s behalf. The trial court overruled appellant’s objection and appellee’s original attorney was allowed to testify. The jury returned a verdict in favor of appellee. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

In his sole enumeration, appellant urges that the trial court erred in overruling the objection to the competency of appellee’s original attorney to testify on appellee’s behalf. OCGA § 24-9-25 provides, in relevant part, as follows: “No attorney shall be competent... to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney or by reason of the anticipated employment of him as attorney.” However, this statutory provision is for the benefit of appellee and cannot be invoked by appellant. “ ‘The rule that communications between an attorney and his client are privileged, and that the attorney is an incompetent witness to testify thereto, can not be invoked for the benefit of other persons who are strangers to such relationship.’ [Cit.]” Favors v. State, 145 Ga. App. 864, 866 (3) (244 SE2d 902) (1978). There is no question but that the actions of appellee’s original attorney comport with all relevant ethical standards. He did not seek to serve appellee in the dual capacity of trial counsel and witness. Compare Southern Shipping Co. v. Oceans Intl. Corp., 174 Ga. App. 91 (329 SE2d 263) (1985). Appellee and its original counsel made the decision that the latter would forego serving the former as its trial counsel and would serve instead as a witness. The trial court did not err in overruling appellant’s objection to the competency of appellee’s original counsel to be sworn and to testify as a witness for appellee.

Decided September 29, 1989.

William E. Glisson, for appellant.

James H. Phillips. F. Carlton King, Jr., for appellee.

Judgment affirmed.

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


text:
    A89A1332.
    STROUD v. THE STATE.
    (387 SE2d 37)
   Carley, Chief Judge.

Appellant was tried before a jury on a two-count indictment. Count one alleged that appellant had committed the offense of statutory rape. Count Two alleged that he had committed the offense of child molestation, in that he “removed the clothing of [the female victim], a child under the age of fourteen years of age, with the intent to arouse and satisfy [his] sexual desires. ...” The jury returned a guilty verdict as to both counts. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Urging a failure to prove penetration, appellant enumerates the general grounds of his statutory rape conviction. However, a review of the transcript shows that the element of penetration was sufficiently shown by the victim’s testimony and that her testimony was corroborated by other evidence. The credibility of the victim and of the State’s other witnesses was for the jury. We find that a rational trior of fact could have found, from the evidence adduced at trial, proof of appellant’s guilt of statutory rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the admission into evidence of his incriminatory in-custody statement, urging that the statement was not freely and voluntarily given.

A review of the record shows that the trial court conducted a Jackson v. Denno hearing outside of the presence of the jury. The trial court’s determination that appellant’s statement was freely and voluntarily given is supported by a preponderance of the evidence that was presented at that hearing. Accordingly, this enumeration has no merit. See generally Ezzard v. State, 155 Ga. App. 594, 596 (6) (271 SE2d 728) (1980).

3. The trial court overruled appellant’s chain-of-custody objection to the admission of certain physical evidence. 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 adequate to preserve the identity of the evidence. [Cit.] The burden is on the State ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cits.] The State need not negative every possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the evidence. [Cit.] ‘(W)hen there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.’ [Cit.]” Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981). The record shows that the State met its burden of proof as to the admissibility of the evidence and that, therefore, the trial court did not err in so ruling.

4. The evidence showed that the act of removing the victim’s clothing which formed the basis for appellant’s conviction for child molestation immediately preceded the act of sexual intercourse which formed the basis for his conviction for statutory rape. Appellant urges that, under these circumstances, the child molestation offense merged into the statutory rape offense and that the trial court erred in sentencing him for both crimes.

Evidence of a single act of sexual intercourse with an underage female will authorize a conviction for statutory rape or for child molestation but not for both. “ ‘An accused may be prosecuted for both [statutory] rape and child molestation based upon the same conduct, but he may not be convicted of both. (Cits.)’ [Cit.]” Coker v. State, 164 Ga. App. 493, 495 (3) (297 SE2d 68) (1982). In the instant case, however, the evidence which supports appellant’s conviction for child molestation is not his act of sexual intercourse with the underage victim. Without regard to his subsequent acts, appellant’s commission of the offense of child molestation was complete when he removed the clothing of the victim with the requisite intent. Without regard to his previous acts, appellant’s commission of the offense of statutory rape was not initiated until he began to engage in sexual intercourse with the underage victim. Under the evidence, two sequential but entirely separate crimes were committed against the same victim and a conviction and sentence for both crimes was authorized. See generally Morris v. State, 179 Ga. App. 228, 229 (6) (345 SE2d 686) (1986). “The general rule is that when individual acts are prohibited, each act is punished separately, no matter how close they may be in time to each other. [Cits.]” Pryor v. State, 238 Ga. 698, 699-700 (1) (234 SE2d 918) (1977).

Decided September 29, 1989.

Smith & Welch, Benjamin W. Studdard III, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgments affirmed.

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


text:
    A89A1347.
    ALLISON v. AUTO-OWNERS INSURANCE COMPANY.
    (387 SE2d 39)
   Carley, Chief Judge.

On July 11,1981, appellant-plaintiff was injured in an automobile collision. She filed a no-fault claim with appellee-defendant. When appellee refused to pay appellant for more than two weeks of lost income, she filed suit in state court, seeking to recover additional no-fault lost wages benefits for the period between July 1, 1982 and October 1, 1983. The case was removed to U. S. District Court and a jury trial resulted in a verdict in favor of appellee. Appellant appealed, urging that it was error to deny her motion for judgment n.o.v. In response to a certified question from the United States Court of Appeals for the Eleventh Circuit, our Supreme Court held that “a jury question was raised as to whether [appellant] was entitled to lost wages for the period of disability in question.” Allison v. Auto-Owners Ins. Co., 256 Ga. 446, 448 (349 SE2d 682) (1986). Subsequently, the U. S. Court of Appeals affirmed the District Court’s order denying the motion for judgment n.o.v.

Subsequently, appellant filed this action against appellee. In her complaint, appellant sought no-fault lost wages benefits for the period between April 1, 1985 and May 31, 1987. Appellee answered and raised among its other defenses, res judicata and estoppel by judgment. Appellee moved for summary judgment based upon its res judicata and estoppel by judgment defenses. The trial court granted summary judgment in favor of appellee and appellant appeals from that order.

“ Tn the rare instance, such as in this case, in which the insured is employed on the date of the accident and injury but where the employment is only certain in duration as to that day, the insured is not necessarily precluded from recovery of benefits for loss of income or earnings for the length of disability. He must, however, establish with reasonable certainty his entitlement to benefits for loss of income or gamings during the period of his disability by showing that he had “accepted an offer of income-generating employment. . . prior to the period of disability.” [Cit.]’ [Cit.]” Allison v. Auto-Owners Ins. Co., supra at 447-448. Appellant has had one opportunity to meet this burden of proof and failed in her effort to do so. The evidence in her previous action against appellee showed “that her employment was scheduled to and did end two weeks after the accident; that she had not obtained new employment at the time of the accident; that no proof was given as to when, barring the mishap, new employment would have been obtained or as to the earnings that would have been derived therefrom; and that no proof, other than the job training program [appellant] was involved in at the time of the accident, was offered as to a continuous pattern of employment.” Allison v. Auto-Owners Ins. Co., supra at 448. Accordingly, the principles of res judicata or estoppel by judgment would preclude appellant from relitigating the issue of her entitlement to no-fault lost wages benefits “for the period of disability in question.” Allison v. Auto-Owners Ins. Co., supra at 448. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40.

Appellant urges, however, that the matter involved in the instant case was not and could not have been put in issue in her prior suit against appellee. According to appellant, her prior action involved a recovery of no-fault lost wages benefits for a period of disability between July 1, 1982 and October 1, 1983, whereas the instant action involves an entirely different period of disability between July 1, 1985 and May 31, 1986. Under the provisions of the no-fault statute, however, appellant would not be entitled to recover for a period of disability which did not arise until July 1, 1985. OCGA § 33-34-2 (2) provides, in relevant part, that “the term . . . ‘[disability’ means any period of time commencing within 24 months from the date on which the motor vehicle accident occurred. . . .” (Emphasis supplied.) Accordingly, the only viable period of “disability” entitling appellant to no-fault lost wages benefits is one which began within 24 months of July 11, 1981. The issue of appellant’s entitlement to recover no-fault lost wages benefits for a period of disability commencing during the relevant 24-month period was resolved against her in her prior action against appellee. It follows that the trial court correctly granted summary judgment in favor of appellee.

Decided September 29, 1989.

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

William E. Cannon, Jr., for appellee.

Judgment affirmed.

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


text:
    A89A1527.
    ARCHER MOTOR COMPANY, INC. v. INTERNATIONAL BUSINESS INVESTMENTS, INC.
    (386 SE2d 918)
   Sognier, Judge.

International Business Investments, Inc. (International) brought suit against Archer Motor Company, Inc. (Archer) to recover a brokerage commission for the sale of real property to which it alleged entitlement under an exclusive business brokerage agreement. In its answer, Archer alleged that the agreement did not contemplate the sale of the realty. In Intl. Business &c. v. Archer Motor Co., Inc., 187 Ga. App. 97 (369 SE2d 268) (1988), this court reversed the trial court’s grant of summary judgment in favor of Archer, holding that after applying the pertinent rules of construction, “an ambiguity does exist as to whether, or not, the real property was to be included along with the other components of defendant’s used car business under the terms of the listing agreement,” id. at 99, and that the issue must be submitted to a jury. At trial the jury returned a verdict for International. Archer appeals from the denial of its motions for judgment notwithstanding the verdict and for a new trial.

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that on May 27, 1986, appellant’s then president and sole shareholder, Robert L. Archer, entered into a brokerage agreement with appellee for the sale of his used car business. The business, consisted of two used car lots, one in Morrow and one in Griffin. Under the terms of the agreement, appellee was granted the “sole, exclusive and irrevocable right to sell, exchange, lease or otherwise dispose of the . . . business, assets, rights and property or any portion thereof ... for the price and on the payment terms set forth above or for any other price and payment terms acceptable to Seller.” Although no value was indicated for the real property in the section stating “[o]nly the assets for which values are indicated below are included for sale under this agreement,” both a minimum price and terms acceptable to appellant for sale of the real estate were included in that portion of the agreement which also set forth a minimum price and terms for the business assets. A previous contract, which was similar but which unambiguously and without dispute excluded the real estate, had expired under its own terms.

In December 1986, during the term of the second contract, appellant merged its Morrow business location with the one in Griffin, and, using a different agent, sold the Morrow real estate to a third party. Robert L. Archer died after the occurrence of the events which form the subject matter of this suit.

1. Appellant contends the trial court erred by denying its motion for j.n.o.v. because the corporate resolution which authorized its president to sell the going business did not permit the corporation to enter into an exclusive brokerage contract. There is no merit in this contention. “ ‘In reviewing the overruling of motions for . . . judgment n.o.v., the appropriate standard to be utilized is the any evidence test. (Cits.)’ [Cit.]” Orkin Exterminating Co. v. Flowers, 187 Ga. App. 270, 271 (1) (370 SE2d 29) (1988). The corporate resolution in question provided that Robert L. Archer, its president, was vested “with full and complete authority, to perform any necessary act to grant to [appellee] the authorization to list for sale, lease or exchange certain assets (as further defined in the Broker Agreement) of said Corporation.” The corporate resolution makes no reference to the specific issue of whether Archer could enter into an exclusive brokerage agreement covering the realty. We do not agree with appellant that the absence of language expressly permitting Archer, to enter into such an agreement on appellant’s behalf requires that the resolution be construed as implicitly excluding such authority. We need not address appellant’s arguments rebutting appellee’s assertion that the above language unambiguously authorized Archer to enter into the exclusive brokerage agreement, however, since even assuming, arguendo, that the resolution language was ambiguous, there was evidence that the corporate resolution authorized an exclusive brokerage agreement. The brokerage agreement which Archer signed as appellant’s president defines the listing as exclusive. Appellant’s corporate secretary testified that Archer and she had read the agreement and admitted that no action was taken by the corporation to change or cancel the agreement. The secretary further conceded that appellant was not contesting the exclusive nature of the brokerage agreement as to the business assets, although it was executed pursuant to the same resolution. Some evidence having been introduced authorizing the jury to find that the resolution authorized the agreement, we find no error in the trial court’s denial of appellant’s motion for j.n.o.v. See Davis v. Glaze, 182 Ga. App. 18, 19-20 (1) (354 SE2d 845) (1987).

2. Appellant contends the trial court erred by denying its motion for a new trial made on the general grounds, arguing that the agreement unambiguously excluded the realty. We cannot agree with appellant’s argument in view of this court’s holding in Intl. Business &c., supra at 99, that after applying the applicable rules for construing contracts, an ambiguity remained with regard to whether the real property was to be included. “[A]ny ruling by the . . . Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the . . . Court of Appeals . . . .” OCGA § 9-11-60 (h).

Although the evidence was conflicting as to the intentions of the parties, appellee’s president, Frank Glunn, testified that omitting a valuation for real estate at the beginning of the contract was the usual method of filling out the forms; that he had been instructed to complete them that way by the designer of the forms; and that the later inclusion of a minimum price and terms for the sales of the real estate indicated that the realty was included. This evidence authorized the jury to find that the parties intended to include the real estate in the exclusive brokerage contract. “ ‘This court will not disturb a judgment when there is any evidence to sustain it, in the absence of a material error of law. [Cit.] If the verdict is wholly without supporting evidence, it will be set aside, but where the evidence is in conflict and a properly instructed jury resolves the conflicts against [one party], and that decision is approved by the trial judge and is supported by the evidence of record, this court, in the absence of material errors of law, will affirm. [Cit.]’ [Cit.]” Spears v. Mires, 187 Ga. App. 656, 658 (3) (371 SE2d 122) (1988). Accordingly, the trial court did not err by denying appellant’s motion for a new trial. See id.

3. Appellant enumerates as error the admission, over objection, of certain real estate licenses and the failure of appellee to prove it had a proper license, a prerequisite to recovery of brokerage commissions under OCGA § 43-40-24. We find no merit in this enumeration. Glunn testified that appellee was properly licensed as a corporate real estate broker during the time in issue. Where a regulated business is required to prove that it is licensed in order to maintain an action for debt, the best evidence rule does not require that the actual licensing document be entered into evidence, and the testimony of an agent of the company is sufficient proof of licensing. Merrill Lynch &c. Smith v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981). Thus the documentary evidence was not necessary to prove licensure, and we need not consider whether it was properly admitted. It is an old and sound rule that error to be reversible must be harmful. Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882) (1987).

4. Appellant maintains the trial court erred by admitting appellee’s exhibit 13 as a business record. Exhibit 13 was a series of documents offered by appellee to demonstrate and substantiate the efforts expended by Glunn in carrying out the terms of the contract. Each document in the exhibit recorded a contact made by Glunn with a prospective purchaser. Glunn testified that although these individual documents were not kept together by the business as one record, each of the documents was made in the regular course of business by Glunn at or near the time of the contact and was kept as a business record. Glunn then compiled the documents into exhibit 13. “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” OCGA § 24-3-14 (b). A proper foundation having been laid for the admission of the documents comprising exhibit, the fact that the admissible documents were offered as a group rather than individually was no ground to exclude the exhibit as a whole.

5. Appellant contends the trial court erred by sustaining appellee’s parol evidence objection to the question posed to appellant’s corporate secretary, Betty Archer, regarding what the corporate resolution encompassed. The trial court sustained the objection on the ground that the resolution would speak for itself, a ruling we find correct pursuant to OCGA § 24-6-1 since what the resolution “encompassed” would be clear from the face of the resolution, and thus an answer to the question in issue would either add nothing or impermissibly infringe upon the parol evidence rule’s prohibition against oral testimony contradicting or varying the terms of a written instrument. We intimate nothing as to whether it would have been error to refuse to allow the witness to answer had the question been rephrased to ask for the secretary’s understanding of the corporation’s intention in passing the resolution.

6. Appellant contends the trial court erred by charging the jury that “the intentions of the parties may differ amongst themselves. In such cases, the meaning placed on the contract by one party and known to be thus understood by the other party at [the] time shall be held as the true meaning.” Appellant does not contend the charge is an incorrect statement of the law. Rather, appellant asserts that because the charge was not couched in the alternative, it may have misled the jury into believing that in fact there existed an understanding of the meaning of the contract common to both parties, when that was the ultimate question for the jury. We do not agree. The charge was given in the exact language of OCGA § 13-2-4, and we find nothing in it to confuse or mislead the jury. “[T]he standard remains that all that is required is a charge sufficiently clear to be understood by jurors of ordinary capacity and understanding. [Cit.]” Allison v. Keller Indus., 186 Ga. App. 175, 176 (1) (367 SE2d 70) (1988). Viewing the charge as a whole, we find that it conveyed to the jury that it was to decide what the intentions of the parties were, and whether those intentions coincided. Accordingly, we find no error in the trial court’s charge.

Decided September 29, 1989.

Howard P. Wallace, for appellant.

McLain & Merritt, M. David Merritt, Albert J. Decusati, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1055.
    UNION CAMP CORPORATION v. SOUTHERN BULK INDUSTRIES, INC.
    (386 SE2d 866)
   McMurray, Presiding Judge.

Plaintiff Union Camp Corporation brought suit against defendant Southern Bulk Industries, Inc., in the Superior Court of Chatham County. Plaintiff alleged that it entered into a contract with the City of Savannah pursuant to which the City was to supply water to plaintiff through the City’s water supply system; that defendant negligently damaged a water supply pipeline while constructing and operating a holding pond on property leased by defendant; that, consequently, the supply of water to plaintiff was interrupted and the production of plaintiff was curtailed substantially; and that plaintiff thereby sustained damage in the amount of $182,070.94. Defendant moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The superior court granted defendant’s motion and plaintiff appeals. Held:

“Under the Civil Practice Act (Ga. L. 1966, p. 609, as amended by Ga. L. 1967, p. 226) a motion to dismiss a complaint for failure to state a claim should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260). Does the complaint disclose that plaintiff is not entitled to relief?

In Byrd v. English, 117 Ga. 191 (43 SE 419), a case which is nearly identical to the case sub judice, the Supreme Court held that plaintiff’s petition did not state a cause of action and that the general demurrer filed by defendants was sustained properly. In Byrd, the petition alleged that plaintiff maintained a printing and publishing business in the City of Atlanta; that plaintiff was dependent upon electric power furnished by the Georgia Electric Light Company to operate his machinery; that the electric power was conveyed through wires which were placed under the ground in conduits; that on a day certain defendants were engaged in constructing a building on the lot of defendant English when they negligently caused a wall of earth to fall on the conduits containing the electric wires; that the wires were broken and plaintiff was unable to conduct his business for several hours; and that, as a result of defendants’ negligence, plaintiff suffered damages. The petition was amended to allege that the Georgia Electric Light Company furnished electricity to plaintiff pursuant to a contract; and that pursuant to the contract, plaintiff could not recover from Georgia Electric Light Company for damages occasioned by the accidental disruption of service.

In ruling that the general demurrer filed by defendants was sustained properly, the Byrd court held: “A party to a contract who is injured by reason of the failure of the other party to comply with its terms can not recover damages for the negligent act of a third person by which the performance of the contract was rendered impossible.” Byrd v. English, supra at 191. In so holding, the Byrd court reasoned: “It will be borne in mind that this is not an action for an injury to the person or property of the plaintiff. It is not claimed that the defendants have violated any contractual duty owed to the plaintiff. Their duty to the public in performing the work in which they were engaged was to do it in such a manner as not to negligently injure the person or property of anyone. According to this petition, the damage done by them was to the property of the Georgia Electric Light Company, which was under contract to furnish to the plaintiff electric power, and the resulting damage done to the plaintiff was that it was rendered impossible for that company to comply with its contract. If a plaintiff can recover of these defendants upon this cause of action, then a customer of his, who was injured by the delay occasioned by the stopping of his work, could also recover from them; and one who had been damaged through his delay could in turn hold them liable; and so on without limit to the number of persons who might recover on account of the injury done to the property of the company owning the conduits. To state such a proposition is to demonstrate its absurdity. The plaintiff is suing on account of an alleged tort by reason of which he was deprived of a supply of electric power with which to operate his printing establishment. What was his right to that power supply? Solely the right given him by virtue of his contract with the Georgia Electric Light Company, and with that contract the defendants are not even remotely connected. If, under the terms of his contract, he is precluded from recovering from the electric light company, that is a matter between themselves for which the defendants certainly can not be held responsible. They are, of course, liable to the company for any wrong that may have been done it, and the damages recoverable on that account might well be held to include any sums which the company was compelled to pay in damages to its customers; but the customers themselves can not go against the defendants to recover on their own account for the injury done the company.” Id. at 193, 194.

Decided September 6, 1989

Rehearing denied October 2, 1989

Brennan, Harris & Rominger, Edward T. Brennan, Mason White, for appellant.

Chamlee, Dubus, Sipple & Walter, George H. Chamlee, for appellee.

In the case sub judice, as in Byrd, plaintiff alleges that defendant negligently damaged the property of a third party and that, consequently, the third party was unable to fulfill its contractual obligations to plaintiff. We agree with the superior court that these allegations do not state a claim upon which relief can be granted. Byrd v. English, 117 Ga. 191, supra. See also Willis v. Ga. Northern R. Co., 169 Ga. App. 743 (314 SE2d 919).

Although the facts alleged in City of Albany v. Oxford Constr. Co., 221 Ga. 872 (148 SE2d 324), bear a striking resemblance to the facts alleged in the case sub judice, plaintiffs reliance upon City of Albany is misplaced. First, the petition in that case could have been construed to allege that defendant damaged the plaintiffs (not a third party’s) gas lines. Second, and more importantly, it is clear that the defendant in that case did not raise the principle enunciated in Byrd as a defense. Thus, the Supreme Court was not called upon to consider the Byrd principle in deciding City of Albany, and consequently, City of Albany is not a binding precedent in the case sub judice. See Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (114 SE2d 529) wherein the Supreme Court observed: “ ‘ “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” ’ [Cits.]”

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A89A1250.
    GILES v. THE STATE.
    (387 SE2d 5)
    Decided September 14, 1989
    Rehearing denied October 3, 1989
    Oliver Giles, pro se.

      Willis B. Sparks III, District Attorney, Charles H. Weston,

      Thomas J. Matthews, Assistant District Attorneys, for appellee.
   Beasley, Judge.

Defendant appeals the denial of his motion for resentencing. The crimes of which defendant was convicted occurred in 1974 and his trial took place in 1975. At that time he was sentenced by the trial court to twenty years for rape and consecutively to an additional twenty years for armed robbery. He contends the imposition of the second sentence was illegal because it was imposed by the trial court rather than by the jury which found him guilty. The jury failed to indicate whether the sentences should be imposed concurrently or consecutively and therefore defendant urges that the second sentence must be concurrent with the first under OCGA §§ 17-10-2 (b) and 10.

The trial court found to the contrary. Although jury sentencing was provided for by the law in effect at the time the crimes were committed, the law was changed in 1974 to provide for sentencing by the trial court. This was what happened in 1975 when defendant was tried and convicted, and it was the correct procedure. Jones v. State, 233 Ga. 662, 663 (2) (212 SE2d 832) (1975).

Defendant relied upon Anglin v. State, 244 Ga. 1 (1) (257 SE2d 513) (1979), which required, based upon Wade v. State, 231 Ga. 131 (200 SE2d 271) (1973), that two life sentences fixed by the court pursuant to recommendations of mercy by the jury be served concurrently unless the jury specified that they be served consecutively. He contended since both of the offenses for which he was sentenced were capital at the time, only a jury could determine whether he could be given consecutive sentences and the failure to specify meant that he could only be given concurrent terms. Anglin was overruled by Welch v. State, 254 Ga. 603, 606 (2) (331 SE2d 573) (1985). Cargill v. State, 256 Ga. 252, 253 (2) (347 SE2d 559) (1986), held the court may impose consecutive sentences even when the jury does not specify. The trial court correctly applied Duckworth v. State, 246 Ga. 631, 633 (2) (272 SE2d 332) (1980). It held that where the State did not seek the death penalty, OCGA §§ 17-10-2 (b) and 30 were inapplicable and the court pursuant to OCGA § 17-10-2 (a) was authorized to fix sentences to either run consecutively or concurrently.

Judgment affirmed.

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


text:
    A89A1695.
    SMATHERS v. CITY OF LAWRENCEVILLE HOUSING AUTHORITY.
    (387 SE2d 6)
    Decided September 18, 1989
    Rehearing denied October 3, 1989
    Bobby Smathers, pro se.

      Webb, Fowler & Tanner, Anthony O. L. Powell, Russell T. Bryant, for appellee.
   Banke, Presiding Judge.

Following a non-jury trial, the appellee recovered a judgment against the appellant in the amount of $995.52 for conversion. Thereafter, the court granted a motion by the appellee for an award of attorney fees and expenses of litigation pursuant to OCGA § 9-15-14. This direct appeal followed. Held:

1. Pursuant to OCGA § 5-6-35 (a) (6), an application for appeal must be filed in “all actions for damages in which the judgment is $2,500.00 or less.” See City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986). Also, pursuant to OCGA § 5-6-35 (a) (10), an application for appeal must be filed in order to appeal an award of attorney fees and expenses of litigation entered pursuant to OCGA § 9-15-14. See Loveless v. Pickering, 187 Ga. App. 49 (369 SE2d 281) (1988). There having been no compliance with the application procedure in this case, it follows that the present appeal must be dismissed for lack of jurisdiction.

2. Inasmuch as the appeal has been dismissed, the appellee’s motion for imposition of a penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal must be denied. See Bowles v. Lovett, 190 Ga. App. 650 (2) (379 SE2d 805) (1989).

Appeal dismissed.

Sognier and Pope, JJ., concur.


text:
    A89A0926.
    GORDON v. THE STATE.
    (387 SE2d 40)
   Beasley, Judge.

Defendant appeals his conviction for armed robbery (OCGA § 16-8-41 (a)).

1. “[I]t is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt. [Cits.]” Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988), cited in Royal v. State, 189 Ga. App. 756 (1) (377 SE2d 526) (1989).

Defendant was represented at trial by the public defender’s office. He was sentenced on October 26, 1988, and on October 27, defendant’s handwritten request for sentence review was filed. On December 19, beyond the 30 days mandated by OCGA § 5-5-40 (a), defendant’s handwritten Motion for New Trial was filed. It contained as grounds: 1) the failure to sequester the jury over the weekend after deliberations had begun 2) the non-introduction of a transcript of his preliminary hearing at trial and 3) the lack of an appointed attorney for him during his preliminary hearing. There is no ruling on the motion in the record, although there is a note that it was set for hearing on June 23, 1989.

On January 13, 1989, a pro forma “Out of Time Notice of Appeal” was filed by trial counsel. At the same time, a form order submitted by counsel and signed by the trial judge was filed which stated: “Good and sufficient reason having been shown, it is hereby ordered that [defendant] be allowed to file an Out-of-Time Appeal in the . . . case.” No further indication is given of what constituted “good and sufficient cause.” See Shirley, supra at 360.

As of the date of this opinion, no ruling has been made in the trial court on the Motion for New Trial.

“When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.” OCGA § 5-5-41 (a). In addition, the bases for granting an extraordinary motion are much stricter than a normal motion. Dick v. State, 248 Ga. 898, 899 (1) & (2) (287 SE2d 11) (1982).

In order for an out-of-time appeal to be granted, the basis “must have rested upon an issue of constitutional dimension concerning the appeal itself, such as ineffective assistance of counsel resulting from failure to file a timely appeal or counsel’s abandoning an appeal desired by defendant, or failure to advise defendant of his right to appeal.” Shirley, supra.

The trial court having granted the out-of-time appeal, we review the merits presented, leaving for the trial court’s resolution the pending extraordinary motion for new trial. See McGuire v. State, 188 Ga. App. 891 (374 SE2d 816) (1988); Paytee v. State, 190 Ga. App. 291 (380 SE2d 92) (1989).

2. Defendant’s sole enumeration claims error in the trial court’s denial of his motion for new trial on the “general grounds.” See Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988). The brief, after narrating the evidence, is pro forma and undifferentiated so as to be tailored to this case. There is no argument addressed specifically to the evidence here.

Decided October 3, 1989.

Jerry Boykin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Constance C. Russell, Rebecca A. Keel, Assistant District Attorneys, for appellee.

It appears that defendant has overlooked that there has been no denial on the Motion for New Trial, which lack of a ruling presents nothing by way of the enumeration for our review.

To the extent it raises the sufficiency of the evidence, Stinson, supra, the evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Defendant admitted being in the car found near the robbed convenience store, stuck in the median, attempting a u-turn. The scarf and toy gun used in the robbery were in the trunk.

Defendant claimed his brother-in-law went in the store, committed the robbery, ran back, jumped in the car trunk, and told defendant to drive. He further testified that the brother-in-law ran off when he heard the police coming, after defendant opened the trunk to let him out. The jury was not obligated to accept this version of the event. OCGA § 24-9-80.

Judgment affirmed.

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


text:
    A89A1350.
    ROBERTS v. THE STATE.
    (386 SE2d 921)
   Beasley, Judge.

Following a bench trial, Roberts appeals his conviction and sentence for violation of the Georgia Controlled Substances Act by possessing cocaine with intent to distribute, OCGA § 16-13-30 (b). He contends that his motion to suppress evidence of contraband seized during a warrantless search of his person was improperly denied resulting in violation of his rights under the State and Federal Constitutions. Although Roberts cites Ga. Const. 1983, Art. I, Sec. I, Par. XIII, he does not develop this ground but relies instead solely on federal constitutional law. The mere reference does not adequately raise a separate state constitutional ground for consideration. See Burroughs v. State, 190 Ga. App. 467, 471 (2) (a) (379 SE2d 175) (1989).

Appellant contends (1) the evidence was seized as a result of an investigatory stop which was illegal because there was no articulable suspicion to believe he was armed and engaged in criminal activity as required by Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968); (2) assuming the initial stop was valid, the subsequent search was illegal because the Terry-type frisk for weapons was used as a pretext to justify the seizure of the evidence; (3) there was no independent probable cause to believe that he possessed narcotics thereby justifying a warrantless search and seizure.

“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.’” [Cit.]” Santone v. State, 187 Ga. App. 789, 790 (1) (371 SE2d 428) (1988). The evidence at the motion to suppress hearing consisted solely of the testimony of arresting officer O’Brien. At approximately 1:00 p.m., the police received an anonymous call that at a certain location several individuals were standing at the corner by a vacant house, drinking beer and possibly selling drugs. No more than five minutes later O’Brien, in plain clothes and an unmarked vehicle, responded to the call with another officer.

The officers positioned themselves approximately one hundred to one hundred fifty yards from the scene, with an unobstructed view so as to try to observe if there were any drug transactions going on. Officer O’Brien believed his vehicle was visible from the subjects’ vantage point. Four people, one of whom was Roberts, were standing near the corner of the house. Two of them were drinking beer. O’Brien could not recall if Roberts had been drinking. Another individual drove up to where the four were standing, parked his car, got out, walked over to the four, and began talking to Roberts. The man did not get closer than ten to fifteen feet of Roberts. Roberts looked “as though he was saying no to the man, kind of moved his hands toward him like no, nothing going on.” The man turned and left. The encounter lasted not even fifteen seconds.

The officers approached the four. O’Brien asked Roberts for some identification, if he lived in the area, and what exactly he was doing. Roberts gave the officer some identification and stated that the individual who had come by was asking for directions. O’Brien informed Roberts that they had had a complaint and asked him if he knew anything about anybody being out there selling drugs. Roberts responded that he did not know about it. O’Brien asked Roberts if he had anything on him. Roberts voluntarily emptied his pockets and showed some money, a comb, and a couple of other items.

When Roberts emptied his pockets, O’Brien looked down and noticed a bulge, a small piece of paper sticking out at Roberts’ waistline. Roberts saw O’Brien notice the bulge and he kind of turned to try to hide it. O’Brien asked him what it was. Roberts responded, “Oh, that is nothing,” and told O’Brien to leave it alone. O’Brien reached for the bulge and Roberts pushed him away. At that point, O’Brien did not know what Roberts had. O’Brien put Roberts up against the car and began to search him. O’Brien felt the outside of the bulge; it was hard. O’Brien thought it might be a small pocketknife. The officer pulled the item out. It was a lunch-size paper bag that had been cut in half; inside were four small plastic baggies, “all balled up in a package,” containing a white powder which field tested positive for cocaine.

“The United States Supreme Court has said: ‘In Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)] the Court first recognized “the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause.” [Cit.] . . . (T)he Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. 392 U. S., at 22 . . . When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure (of person or property) based on less than probable cause ... In Terry, we described the governmental interests supporting the initial seizure of the person as “effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U. S., at 22.’ [Cits.]

“ ‘[Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop . . . The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. [Cits.] . . . (T)o justify (a less-than-probable-cause) seizure an officer must have a reasonable suspicion of criminal activity based on “specific and articulable facts . . . (and) rational inferences from those facts. . . .” Terry v. Ohio, 392 U. S. at 21. [Cit.]’ [Cit.]

“Our Georgia appellate courts have explained these concepts in applying the United States Supreme Court interpretations of the Fourth Amendment parameters: ‘ “It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh[s] the momentary inconvenience and indignity of investigatory detention.” [Cit.] It is also clear that what is a “reasonable articulable ground” for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. [Cit.] Each case depends on its own facts. “The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.” (Cit.)’ [Cits.]” State v. Hodges, 184 Ga. App. 21, 23-24 (360 SE2d 903) (1987) which involved a search of defendants’ vehicle as well as the detention of the defendants.

The receipt of information from an unidentified informant is one of the factual predicates upon which an articulable suspicion may be founded. See Chumbley v. State, 180 Ga. App. 603, 604 (349 SE2d 823) (1986). “[Otherwise would not only defy common sense but might well have the effect of discouraging private citizens who observe suspect conduct from reporting such conduct to law enforcement officials. If this were to happen, a valuable link in the chain of citizen-government cooperation would be lost, and the attainment of the goal of a stable, safe, law-abiding society retarded. Moreover, the effect upon law enforcement personnel could hardly be otherwise than detrimental.” State v. Brown, 178 Ga. App. 307, 309 (2) (342 SE2d 779) (1986).

In this case, the information received from the anonymous caller regarding the presence of the individuals at the given location and their behavior was affirmed by the officers’ own observations. In addition, the officers witnessed the approach of the fifth individual, the nature of his interaction and communication with defendant, and the individual’s hasty departure, all in light of the officers’ belief that their presence was visible to the four. Even arguably innocuous details supplied by an informant when coupled with first hand corroboration by trained law enforcement officers may be sufficient to raise a reasonable and articulable basis to suspect criminal activity. The four men loitering near an empty house on a street corner in mid-day, the encounter between Roberts and the approaching individual and hasty departure in the presence of observable plain clothes officers, the tip that possible drug activity was occurring, all support the trial court’s conclusion that the officers had a reasonable, articulable basis to suspect that Roberts was involved in drug activity. This justified the initial detention.

After O’Brien questioned Roberts and observed the bulge at his waist, which Roberts tried to hide or at least keep unidentified, O’Brien was authorized to conduct a limited Terry search for weapons. He did so, in compliance with the ordinarily two-step process approved in Terry. See discussion of this process in Wyatt v. State, 151 Ga. App. 207, 210 (1) (a) (259 SE2d 199) (1979). O’Brien patted Roberts down, felt that the bulge was hard, and thought it might be a pocketknife. This permitted him to intrude enough to ascertain if the object was or contained a weapon. Contrary to appellant’s contention, the evidence does not compel the conclusion that the Terry search was mere pretext to hunt for contraband.

Decided October 3, 1989.

Claudia S. Saari, for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Eleni A. Pryles, Assistant District Attorneys, for appellee.

Once the permissibly-explored bulge turned out to be apparent contraband, the officers had sufficient and independent cause to arrest Roberts. Compare Rebeiro v. State, 186 Ga. App. 518 (367 SE2d 857) (1988), in which the issue was one of probable cause for warrant-less arrest, in which there was no evidence of a limited search for weapons, and in which the defendant gave a plausible, non-incriminatory explanation for the observable leg bulge.

The detention and search of appellant and seizure of the contraband was not afoul of the Federal Constitution on the bases urged; denial of suppression was not error.

Judgment affirmed.

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


text:
    A89A1477.
    WALKER v. THE STATE.
    (386 SE2d 925)
   Beasley, Judge.

Walker appeals his conviction of first degree arson, OCGA § 16-7-60 (a) (3), alleging two errors in the jury charge.

On May 13, 1988, a trailer owned by defendant’s wife, Brenda Walker, and insured for over $20,000 by American Motor Home Insurance Company burned. The trailer was located in the small community of Chauncey near Eastman. The fire department responded to the alarm about 3:00 a.m. Because the L-shaped burn pattern was unusual and no source of ignition could be determined, an arson investigation began. Samples of the burned material were submitted to the Crime Lab, but no accelerant was identified.

Police Officer Adams stopped a car for speeding in Eastman at 2:59 a.m. The car was heading north away from the fire when stopped. Officer Adams saw the fire engine pull out headed for the fire just before he noticed the car. Defendant was driving the car and Corey Wiley was identified as the passenger.

Corey Wiley was the son of Brenda Walker and lived with his cousin Dolores Goolsby near the trailer. They had removed a number of items from the trailer the day before the trailer burned.

A next door neighbor saw two men around the trailer near 11:00 p.m. One was carrying a sack and they left when they saw him. He followed them to a nearby church where they got in a car and left. While he could not identify the car or the men, the car was one with brake lights all the way across the back. Defendant’s car had such lights. This neighbor was awakened by a loud popping and saw the fire about 2:30 a.m.

Co-defendant Wiley had an alibi, contending he was asleep in his cousin’s trailer. Defendant admitted that he was driving the car stopped by the officer, but denied Wiley was his passenger or that he had been near the trailer. He contended that he and Greg, whose last name he did not know, had been out drinking and driving around.

1. Defendant contends that the court failed to fully instruct the jury on the elements of the crime charged omitting specific instruction that there must be proof of insurance and that there was no consent of the insurer to the burning.

As acknowledged by defendant in his brief, the charge given by the court on arson comported with his Request to Charge, constituting induced error, if any. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986); Farmer v. State, 180 Ga. App. 720, 722 (5) (350 SE2d 583) (1986).

During its charge the court read the indictment, which included all elements, as well as the portion now objected to.

Considering the charge in its entirety, the elements were adequately explained to the jury with sufficient clarity so as not to mislead the jury. Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982); Leverette v. State, 188 Ga. App. 866, 868 (3) (374 SE2d 803) (1988); Whitehead v. State, 177 Ga. App. 259 (1) (339 SE2d 365) (1985) (physical precedent).

2. Defendant contends the court erred in not charging as requested the following “lesser included offenses:” arson in the second degree, OCGA § 16-7-61; arson in the third degree, OCGA § 16-7-62; criminal damage to property in the second degree, OCGA § 16-7-23 (a) (2).

OCGA § 16-7-61 covers the burning of property “not included or described in Code Section 16-7-60.” Since it was unrefuted that the property alleged and proven was included in section 60, arson in the second degree was not a lesser included offense. Arson in the third degree refers specifically to personal property. Although there was evidence that personal property within this category was burned along with the dwelling, there was no evidence of a separate burning of personal property which would allow the jury to find defendant burned personal property without finding he burned also the dwelling. Hambrick v. State, 190 Ga. App. 119 (1) (378 SE2d 340) (1989). Under the facts alleged and proven, this is not a lesser included offense. OCGA §§ 16-1-6 and 16-1-7.

Decided October 3, 1989.

Dennis A. Mullís, for appellant.

James L. Wiggins, District Attorney, Tamara A. Jarrett, Timothy G. Vaughn, Assistant District Attorneys, for appellee.

Criminal damage to property in the second degree is a lesser included offense of arson in the first degree. Bryant v. State, 188 Ga. App. 505 (373 SE2d 289) (1988); Gunder v. State, 183 Ga. App. 122 (358 SE2d 284) (1987). While an accused may request a charge on a lesser included crime, failure to give it is not always error, since the evidence must warrant any such charge. State v. Stonaker, 236 Ga. 1, 2 (3) (222 SE2d 354) (1976).

When the evidence establishes without conflict that arson in the first degree occurred, and the defendant simply denies being the one who committed it, the crime of criminal damage to property merges with the crime of arson, and no charge on the lesser crime is required. Hambrick v. State, supra; citing Varnes v. State, 159 Ga. App. 452, 453 (2) (283 SE2d 673) (1981); King v.State, 178 Ga. App. 343, 345 (2) (343 SE2d 401) (1986).

Judgment affirmed.

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