author: Beasley, Presiding Judge. McMurray, Presiding Judge,

text:
    A93A0837.
    VINCENT v. THE STATE.
    (435 SE2d 222)
   Beasley, Presiding Judge.

Defendant Vincent appeals her conviction of the offenses of armed robbery (OCGA § 16-8-41), aggravated assault (OCGA § 16-5-21), false imprisonment (OCGA § 16-5-41), and possession of a firearm during the commission of a crime (OCGA § 16-11-106).

1. Defendant’s first enumeration of error challenges the sufficiency of the evidence to authorize her conviction. Viewed in the light most favorable to the verdict, it shows that the victim was a long-time acquaintance of defendant and her family, including her mother. He reestablished contact with the family via a telephone call to defendant’s sister, who invited him to visit a residence he believed to be the mother’s, on the following evening. When he arrived at the appointed time, he knocked on the door and was admitted by defendant’s sister. He was immediately shot twice and beaten about the head as he lay on the floor. Defendant’s sister went through the victim’s pockets, took his money, and dragged him into another room where he was left rolled up in a blanket and shot twice more. The next morning the defendant and her sister tied the victim up, loaded him in his truck (the keys for which had been taken without his consent), drove him to another location, threw him from the truck, shot him again, and left him lying in the median of Interstate Highway 20.

The victim testified that he first saw defendant going past the hallway at about the time he was shot the third time. He also heard defendant talking to her sister. When the victim attempted to plead for help to their mother, both defendant and her sister threatened to kill him. From time to time during the night, the victim continued to plead with both defendant and her sister. This, plus defendant’s participation the next morning, was sufficient to show that defendant was either the perpetrator or an aider and abettor to the crimes charged. OCGA § 16-2-20; Williams v. State, 200 Ga. App. 84, 85 (1), 86 (406 SE2d 498) (1991); Grant v. State, 198 Ga. App. 357, 358 (1) (401 SE2d 761) (1991); Harden v. State, 197 Ga. App. 686 (1) (399 SE2d 276) (1990).

There was no failure of proof of venue. Where, as here, it is not contested at trial, slight proof of venue is sufficient. Brown v. State, 205 Ga. App. 31 (421 SE2d 340) (1992). The victim testified that after being thrown out of his truck, shot the final time and left, he crawled up an embankment to the highway where he was found. Testimony that the victim was found in Douglas County was sufficient proof of venue.

Although defendant’s sister testified that she acted alone in committing the crimes against the victim and that defendant was not present, and defendant denied involvement, credibility lies in the ex-elusive province of the jury. Jacobson v. State, 201 Ga. App. 749 (1), 750 (412 SE2d 859) (1991); Miller v. State, 201 Ga. App. 374 (1), 375 (411 SE2d 112) (1991); Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520) (1991).

The evidence was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which she was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Turntime v. State, 206 Ga. App. 226, 227 (2) (424 SE2d 877) (1992).

2. During the State’s cross-examination of defendant’s sister, certified copies of the sister’s convictions of the offenses of armed robbery and voluntary manslaughter were admitted to impeach her, without objection. Although Vincent twice objected to the prosecutor’s cross-examination of her sister as to the circumstances surrounding her prior conviction for voluntary manslaughter, neither objection was made on the ground now raised on appeal, i.e., that this was an improper method of impeachment. The objections were somewhat vague but appear to have been on the ground of needless repetition, that the questions had already been answered by the witness and the conviction had been established. “ ‘Grounds which may be considered . . . on appeal are limited to those which were raised at trial.’ Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987).” Shortes v. State, 193 Ga. App. 859, 860 (2) (389 SE2d 354) (1989).

Were this issue properly before us, no reversal would be warranted. The error, if any, was harmless. The only ruling enumerated as error was the overruling of the second objection. The ruling on the first objection has not been challenged on appeal. But even before the first objection was interposed, the witness had answered substantially similar questions without objection. Much more of the same followed prior to the objection which underlies the ruling complained of. “[T]he admission of evidence, even if erroneous, is not harmful where substantially similar facts are shown either by the defendant ... or by other evidence, unobjected to. [Cits.]” Freese v. State, 196 Ga. App. 761, 763 (2) (396 SE2d 922) (1990). The same principle applies to evidence admitted over objection when the ruling on the objection is not pursued on appeal.

Second, a conviction will be affirmed despite error if the error is harmless beyond a reasonable doubt in that the erroneously admitted evidence did not influence the verdict. Vaughn v. State, 248 Ga. 127, 131 (2) (281 SE2d 594) (1981). Where the evidence of guilt is overwhelming, the possibility that the error contributed to the conviction is negated. Id. at 131-132; see Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991); Harvill v. State, 190 Ga. App. 353, 356 (3) (378 SE2d 917) (1989).

The evidence of Vincent’s guilt overcame the presumption of innocence. The victim testified that he could not clearly see who was. shooting him after the first time, but after he was shot in the hip he saw Vincent near him. He identified Vincent as participating in dragging him to and loading him into his truck and in driving it, while her sister held him, to the place where he was thrown out. Shortly after the shooting, while in the hospital in critical condition, the victim gave to a detective a written statement implicating Vincent. The alibi for the time during which the victim was shot and robbed was contradictory and inconsistent, and Vincent’s motive was strong: she was the member of the household responsible for the overdue rent, had no job, and was in desperate financial straights.

3. We have reviewed the remaining enumerations of error and find them to advance no reason for reversal.

(a) The trial court’s refusal to continue the trial was not an abuse of discretion, OCGA § 17-8-22. It was justified by defendant’s inaction with respect to counsel. At arraignment and subsequently, she insisted on retained counsel but none ever appeared and she never showed she had made arrangements for the same. After the court sua sponte appointed counsel on the Thursday before trial, defendant refused to cooperate until the day of trial (Monday), which date she had known over two weeks beforehand. The degree of preparation, which was the basis for the motion, was directly attributable to defendant’s recalcitrance and lack of diligence. See Bacon v. State, 146 Ga. App. 468 (246 SE2d 475) (1978); Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983); Smith v. State, 194 Ga. App. 810 (392 SE2d 288) (1990). She cannot fault the court any more than she can fault appointed counsel.

(b) The court did not err by “allowing” the State to make disparaging remarks about counsel or to express personal opinion in closing argument. The statement referred to is the State’s response to defendant’s objection to certain unrecorded argument. The court instructed the State to confine its comments within the rules of argument. Defendant did not renew the objection or move for mistrial, so the issue was not preserved. Epps v. State, 168 Ga. App. 79, 81 (308 SE2d 234) (1983); Snider v. State, 200 Ga. App. 12, 14 (406 SE2d 542) (1991).

(c) The jury charge is not susceptible to the complaints made against it on appeal. Neither is the court’s ruling on the cross-examination of defendant.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

During the State’s cross-examination of defendant’s sister, certified copies of the sister’s convictions of the offenses of armed robbery and voluntary manslaughter were tendered into evidence for the purpose of impeachment and admitted into evidence without objection. Thereafter, the State attempted to delve into the particular circumstances of the voluntary manslaughter offense and defense counsel objected, pointing out that the State had already established the witness’ conviction for this offense and asking that the State be restricted to the issues in the case sub judice. After the State responded that it was attempting to establish the credibility of the witness, defendant’s objection was overruled and the witness required to answer. Defendant enumerates as error the trial court’s permitting the State to impeach the witness by eliciting testimony as to the particular circumstances of the prior offense of voluntary manslaughter. In my view, the issue argued on appeal lies within the scope of the objection made at trial, is meritorious, and is not harmless error, therefore I respectfully dissent.

“[A] witness cannot be discredited even by his own testimony that he was convicted of a crime involving moral turpitude. It is necessary that a copy of the record of conviction be introduced. Rewis v. State, 109 Ga. App. 83 (134 SE2d 875). Accordingly, the testimony of a witness that he has done some act that the law makes a crime is not a legal method of impeachment.” Durrett v. State, 135 Ga. App. 749, 751 (3), 752 (219 SE2d 9). “While a witness may be discredited by proof of general bad character or conviction of a crime involving moral turpitude, it is not competent to discredit him by showing that he has committed, been arrested for, confined for, or even indicted for such an offense. Davis v. State, 60 Ga. App. 772, 773 (2) (5 SE2d 89); Smallwood v. State, 95 Ga. App. 766 (3) (98 SE2d 602); Beach v. State, 138 Ga. 265 (1), [(75 SE 139)]. Neither may general bad character be proved by individual acts. Johnson v. State, 61 Ga. 305 (2); Davis v. State, 60 Ga. [App.] 772, 774, supra.” McCarty v. State, 139 Ga. App. 101 (1), 103 (227 SE2d 898). While Georgia is among those states which permit a witness impeached by a prior criminal conviction to attempt to rehabilitate their character by explaining the circumstances of the conviction (Belvin v. Houston Fertilizer &c. Co., 169 Ga. App. 100, 101 (2) (311 SE2d 526)), there is no authority granting the party impeaching a witness any comparable exclusion from the above rules.

“Although both parties are entitled to a ‘thorough and sifting’ cross examination (Code § 38-1705), this right is not unlimited. White v. State, 74 Ga. App. 634 (40 SE2d 782). The scope of cross examination rests largely within the discretion of the trial judge . . . and his ruling will not be disturbed unless such discretion be abused. Moore v. State, 221 Ga. 636, 639 (2) (146 SE2d 895). This right must be ‘tempered and restricted so as not to infringe on privilege areas or wander into the realm of irrelevant testimony.’ Eades v. State, 232 Ga. 735, 737 (208 SE2d 791).” McCarty v. State, 139 Ga. App. 101 (1), 102-103, supra. In the case sub judice, the relevancy of the testimony elicited over defendant’s objection could only have gone to the impeachment of defendant’s key witness. Whether the testimony at issue is viewed as an improper method of impeachment or as irrelevant, admission of such evidence was beyond the discretion of the trial court. Due to the importance to the defense of the sister’s attempt to assume sole responsibility for the crimes at issue, I cannot agree that the admission of the improper testimony elicited from this witness was harmless. It follows that defendant’s conviction should be reversed. Polk v. State, 202 Ga. App. 738, 739 (2) (415 SE2d 506); Hall v. State, 180 Ga. App. 881, 882 (3) (350 SE2d 801); Richards v. State, 157 Ga. App. 601, 602 (2) (278 SE2d 63); Grant v. State, 142 Ga. App. 606, 607 (236 SE2d 691); Cross v. State, 136 Ga. App. 400, 405 (6) (221 SE2d 615); Corley v. State, 64 Ga. App. 841, 842 (3) (14 SE2d 121).

Decided July 7, 1993

Reconsideration denied July 30, 1993

J. M. Raffauf, Alden W. Snead, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

I am authorized to state that Judge Cooper joins in this dissent.


source: Caselaw Access Project

license: Public Domain

text:
    A93A0867.
    ROBERTS et al. v. LANE et al.
    (435 SE2d 227)
   Beasley, Presiding Judge.

It is first necessary to clarify the posture of the parties in this case and who is appealing what. It involves activities with respect to the Robertses’ premises, which are owned by Mrs. Roberts. Lane’s property abuts it, as does that of Thomas Robertson.

Lane brought this suit against Mr. and Mrs. Roberts, alleging libel and slander. They counterclaimed against Lane for water run-off onto the Robertses’ premises and for abusive litigation. They also cross-claimed against the two Robertson boys and their father Thomas Robertson for conspiracy to harass and intimidate the Robertses and for damage to the Robertses’ property. The boys, “through their next friend and father” Thomas counterclaimed against Mr. Roberts, alleging slander and harassment and intimidation. The father, Thomas, who is named as an appellee, is named as such only in his capacity as next friend and father of the two boys, in whose behalf a judgment in the amount of $5,837 was entered. Thomas Robertson suffered no judgment against him, brought no claim against anyone on his own behalf, and was awarded nothing. He was in effect just a defendant in Mr. and Mrs. Roberts’ cross-claim.

Thus the verdict and judgment in Thomas Robertson’s favor relates to the $5,837 judgment for the boys against Mr. and Mrs. Roberts for defamation. This includes $3,837 attorney fees. The other verdicts were $21,348 plus court costs for Lane against Mr. and Mrs. Roberts for defamation, and $100 for Mrs. Roberts against the two boys for trespass to personal property.

The appellants are only Mr. and Mrs. Roberts. Although the two boys suffered a judgment against them, they do not appeal. Appellees are plaintiff/counter-defendant Lane and the two boys, counter-defendants.

1. Barbara Roberts contends the trial court erred in denying her motions for directed verdict, arguing there is no evidence that she uttered or otherwise published defamatory remarks about Lane or the Robertson boys.

The evidence in favor of the verdict is as follows: Frank Roberts informed others, via correspondence and verbal exchange, that Lane is a “drunk and freak of nature”; that Lane “[runs] off into the woods to fondle little boys” and that the boys committed illegal sexual acts. Frank Roberts published these and other malignant comments out of vengeance precipitated by alleged trespassing incidents by the Robertson family and a dispute culminating in a lawsuit between Barbara Roberts and Lane.

Publication is indispensable to recovery for libel or slander. OCGA § 51-5-1 (b); Walter v. Davidson, 214 Ga. 187, 189 (1), 190 (104 SE2d 113) (1958). A defamatory matter is published as soon as it is communicated to any person other than the impugned party. OCGA § 51-5-3; Pavlovski v. Thornton, 89 Ga. 829 (2) (15 SE 822) (1892).

There is no evidence that Barbara Roberts uttered or otherwise published defamatory remarks about Lane or the Robertson boys. Nonetheless, Lane and Thomas Robertson contend there is evidence that the Robertses entered into a conspiracy to impugn the reputations of Thad Lane and the Robertson children.

“[0]ne who has not uttered slanderous words may nevertheless be liable therefor if they were uttered by another in furtherance of a conspiracy to which he was a party. 25 Cyc. 434. The conspiracy may be established by showing that both parties were present when the slanderous words were uttered, and that their utterance by one of the parties was with the consent of the other and in pursuance of a common design and purpose.” Lanham v. Keys, 31 Ga. App. 635 (1) (121 SE 856) (1923).

Barbara Roberts and Lane were involved in a legal dispute over riparian rights on their adjoining property when Frank Roberts published defamatory matters (oral and written) about Lane and the Robertson children. Frank Roberts informed his wife that he witnessed the two boys engaging in illegal sexual activity and she was aware of acts of vandalism committed by the Robertson children on her property. However, there is no evidence that Barbara Roberts was present when Frank Roberts uttered malignant remarks about Lane and the boys; there is no evidence that Barbara Roberts directed, affirmed or acquiesced in her husband’s libelous conduct; and there is no evidence that Barbara Roberts actually or tacitly entered into a mutual understanding with her husband to impugn Lane or the Robertson boys.

“[T]he law does not authorize a finding that conspiracy exists merely because of some speculative suspicion and while the question of conspiracy is generally one for a jury, the mere fact that conspiracy has been alleged does not require submission of the question to a jury where there is no evidence of record that the alleged conspirators either positively or tacitly came to a mutual understanding to accomplish an unlawful end or to accomplish a lawful end by an unlawful means. [Cit.]” First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). There is ample evidence to sustain a finding that the Robertses share animosity for Lane and the Robertson children. There is no evidence showing that Barbara Roberts entered into a conspiracy with her husband to impugn Lane and the Robertson children by accusing them of criminal acts.

The trial court erred in denying Barbara Roberts’ motions for directed verdict with regard to the defamation claims.

2. Frank Roberts contends the trial court erred in denying his motion for directed verdict as to the libel claims, arguing there is no evidence that defamatory correspondence he posted to Lane’s attorney was published. This contention is not supported by the record.

As cited earlier, “[a] libel is published as soon as it is communicated to any person other than the party libeled.” OCGA § 51-5-3. Frank Roberts admitted that he posted three “mailgrams” to Lane’s attorney and Lane testified that his attorney turned the correspondence over to him for examination. This testimony is circumstantial evidence that the defamatory correspondence was published to a party other than Lane and is sufficient to sustain the verdicts against Frank Roberts. See Brandon v. Ark. Fuel-Oil Co., 64 Ga. App. 139, 146 (12 SE2d 414) (1940).

3. Recognizing that the judgment against Barbara Roberts may be reversed, Frank Roberts contends he is entitled to a new trial because of the jury’s joint and several award of punitive damages and attorney fees.

Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2) (298 SE2d 533) (1982) (unprecedential), held that an award of punitive damages or attorney fees against all defendants cannot stand undisturbed if a co-defendant escapes liability via a judgment n.o.v. The court reasoned that the jury may have based such damages, in whole or in part, on the conduct of the exonerated co-defendant.

We conclude now on appeal that there is no evidence linking Mrs. Roberts to the defamation, but the jury erroneously did link her and returned a verdict against both Mr. and Mrs. Roberts jointly and severally for compensatory and punitive damages and attorney fees. The jury did so on the erroneous theory that she was jointly liable as her husband’s principal or co-conspirator.

As in Hubacher, supra at 794, “[t]he effect of” reversing the judgment against Mrs. Roberts “is to impose attorney fees and to assess punitive damages that the jury may have based, in whole or in part, upon the acts or intentions of ” Mrs. Roberts. The jury might not have awarded the total amount of attorney fees or the sum of $10,000 for punitive damages if they were considering Mr. Roberts’ liability alone. He is entitled to a new trial with regard only to these damages.

Judgment affirmed in part and reversed in part.

Pope, C. J., Birdsong, P. J., Cooper, Andrews, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., concurs in part and dissents in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I agree with all that is said in Divisions 1 and 2 of the majority opinion. However, I respectfully dissent as to Division 3 as it is my view that Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2) (298 SE2d 533), does not require a new trial.

In Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2), supra, Volkswagen Central sold a car to the Lawhorns informing them that the vehicle’s doors, roof and rear quarter panel had been repaired. Volkswagen Central did not tell the Lawhorns that the car had been totally rebuilt and the Lawhorns sold the car to Hubacher without disclosing that the car had been damaged. Hubacher later discovered that the vehicle had been totally rebuilt and sued the Lawhorns and Volkswagen Central for fraud. A jury returned a verdict for Hubacher, awarding actual damages, punitive damages and attorney fees. However, the trial court granted Volkswagen Central’s motion for judgment n.o.v. and, on appeal, this court affirmed, holding that Hubacher could not recover against Volkswagen Central because Hubacher did not rely on the fraudulent representations of Volkswagen Central. Id. at 792 (1). This court then held that the award of punitive damages and attorney fees against the Lawhorns “cannot stand undisturbed” since the award of punitive damages and attorney fees may have been erroneously based, in whole or in part, upon the malignant conduct of Volkswagen Central. Id. at 793 (2). The Hubacher panel then affirmed the judgment upon condition that Hubacher write-off the jury’s award of punitive damages and attorney fees or face a new trial, apparently on all issues.

Decided July 8, 1993

Reconsideration denied July 30, 1993

Alderman, Green & Hamby, Brady D. Green, for appellants.

Hartley, Rowe & Fowler, Joseph H. Fowler, for appellees.

It is my view that the logic in Hubacher v. Volkswagen Central, 164 Ga. App. 791, supra, does not control the case sub judice. In Hubacher, the tortious conduct of Volkswagen Central and that of the Lawhorns were completely separate and distinct, i.e., Volkswagen Central misled the Lawhorns and the Lawhorns misled Hubacher. However, in the case sub judice, there is no evidence that Barbara T. Roberts committed a tortious act which could have in any way confused the jury’s verdict. The jury’s award of punitive damages and attorney fees could therefore have only been attributable to the tortious conduct of Frank Roberts. Consequently, it is my view that a new trial is not warranted. In fact, my assessment of the record reveals that another trial will be nothing more than a replay of evidence already heard and considered by the finder of fact.

Since the jury’s verdict as to punitive damages and attorney fees is authorized by the evidence, I would affirm the judgment entered upon the jury’s verdict.

       Apparently it is by way of the pretrial order that Mrs. Roberts is added.

       I note that Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2), supra, is a two-judge decision and is therefore not mandatory authority.

       The testimony of Frank Roberts and Barbara T. Roberts reveals that the defamatory conduct of Frank Roberts was stirred, in whole or in part, by animosity and anxiety of Barbara T. Roberts, allegedly brought on by odious conduct by Thad Lane and the Robertson boys. This evidence may authorize a finding that Barbara T. Roberts excited her husband to anger, but it does not show that she was a participant in the defamatory conduct of Frank Roberts.


author: Smith, Judge.

text:
    A93A0869.
    CENTRAL WAREHOUSE & DEVELOPMENT CORPORATION v. NOSTALGIA, INC.
    (435 SE2d 230)
   Smith, Judge.

Nostalgia, Inc. leased warehouse space owned by Central Warehouse & Development Corporation. After a fire that started in the adjoining space spread to Nostalgia’s warehouse and destroyed its inventory, Nostalgia brought suit against Central and the adjoining tenant, alleging negligence on the part of both defendants. Both Central and Nostalgia moved for partial summary judgment, and the trial court denied Central’s motion and granted that of Nostalgia. Central appeals from both rulings. The adjoining tenant is not involved in this appeal.

The record reveals that Nostalgia is in the business of buying, refurbishing, and selling architectural antiques. In 1985, Nostalgia entered into a one-year written lease for warehouse space owned by Central. Each year thereafter, a new written lease was executed prior to the expiration of the old lease. On July 21, 1989, a written lease was executed by Nostalgia and Central for the one-year term beginning September 1, 1989 and ending August 31, 1990. On November 22, 1990, the lease premises were destroyed by fire. At the time of the fire, Nostalgia had in effect a policy of insurance providing coverage for loss or damage of its personalty located at the leased premises. Its claim was paid to the $120,000 limit of the policy.

A clause in the lease entitled “FIRE” provided that the parties agreed, inter alia, that “LANDLORD shall not be liable for any damage to fixtures or merchandise of Tenant caused by fire or other insurable hazards regardless of the cause thereof. Tenant shall not be liable for any damages to leased premises or any part thereof, caused by fire or other insurable hazards, regardless of the cause thereof. Landlord and Tenant hereby expressly release each other from all liability for such damage. Both Landlord and Tenant hereby agree that all insurance policies issued to either or both of them shall include a clause waiving right of subrogation against the other.”

Another lease provision, captioned “RENEWAL,” provided that “Tenant agrees to give the Landlord not less than three months’ notice in writing of intention to give up premises at the end of this lease prior to the expiration thereof, or prior to the end of any renewals. Landlord is to give like notice for a termination on his part. If Tenant is not then in default, he shall have the option to renew this lease for one (1) year beginning September 1, 1990, and ending August 31, 1991 at a rental rate of $650.00 per month. All other terms and conditions to remain the same.” No such notices were given at any time prior to August 31, 1990, nor was a new lease executed. It is undisputed, however, that Nostalgia remained in possession of the premises and paid rent.

Both parties moved for summary judgment on the issue of whether the lease provision releasing the parties from liability for losses to the property of the other regardless of cause, was enforceable against Central, preventing recovery by Nostalgia. The trial court assumed, but did not decide, for purposes of deciding the motion for partial summary judgment, that the parties were still bound by the lease terms even though the lease had expired. It then found the lease provision at issue unenforceable.

1. The trial court granted summary judgment to Nostalgia after determining the release provision in the lease was unenforceable as against public policy. Central contends this was error. We disagree.

In general, parties may agree to a contract waiving liability for the consequences of ordinary negligence, if the intention to do so is expressed clearly and such a result is not prohibited by statute. Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226 (144 SE2d 547) (1965). However, as to certain contracts, OCGA § 13-8-2 (b) prohibits any provision “purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee.” This Code section is applicable to lease contracts. Borg-Warner Ins. Fin. Corp. v. Executive Park Ventures, 198 Ga. App. 70, 71 (400 SE2d 340) (1990).

Central maintains that the provision at issue does not violate the statute because it is clear that the parties did not intend to indemnify or hold harmless any party from liability for its sole negligence, which would be prohibited by OCGA § 13-8-2 (b). Rather, Central argues that reading the provision in context, it is obvious that here, as in Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27 (262 SE2d 794) (1980) and McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496 (343 SE2d 513) (1986), the parties’ intention was to shift the risk of any loss to an insurance carrier. In support of this argument, it points to the “FIRE” clause, which speaks of release only from liability for “insurable hazards” and requires any insurance policies to contain a provision waiving subrogation rights.

This argument is not persuasive. The lease contract does not include a requirement that either party purchase insurance, and such a provision is essential to the construction urged by Central. We agree with the trial court that the absence of such a provision distinguishes this lease from those construed in Tuxedo Plumbing and McAbee Constr. Co., supra, and that this distinction is fatal to Central’s contention. Unlike the leases in Tuxedo Plumbing and McAbee Constr. Co., in which mandatory insurance provisions made the parties’ intention manifest, this lease simply does not clearly evince the parties’ intention to shift the risk of loss to the insurance company regardless of which party was at fault.

Decided July 13, 1993

Reconsideration denied July 30, 1993

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellant.

Adams, Gardner & Ellis, George L. Lewis, Duffy & Feemster, Dwight T. Feemster, for appellee.

Because we likewise agree with the trial court that the phrase “regardless of the cause thereof,” used in the lease here, is sufficiently broad to include within its contemplation indemnification for the sole negligence of the promisee, we also agree with the trial court’s conclusion that the absence of a mandatory insurance provision renders the release provision void as against public policy, and consequently unenforceable. See Borg-Warner, supra.

This conclusion makes it unnecessary to address Central’s remaining arguments regarding the grant of partial summary judgment to Nostalgia. The trial court correctly granted Nostalgia’s motion.

2. Because summary judgment was properly granted to Nostalgia, it follows that the trial court properly denied Central’s motion for summary judgment on the same issue.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A0300.
    BUSBEE v. THE STATE.
    (435 SE2d 60)
   Beasley, Presiding Judge.

Busbee appeals from the judgment entered on his conviction of theft by taking (OCGA § 16-8-2).

Oscar Bush and James Wooley, a construction contractor and his helper, were re-roofing a residence using a saw belonging to Bush worth approximately $175. They stopped for lunch and drove to town, leaving the saw at the work site in Bush’s unlocked van. When they returned, the saw was missing. Bush and Wooley drove back to town looking for appellant Busbee and found her by the side of the road talking to Walter Ellis. Bush retrieved his saw from the back seat of Busbee’s car, returned to work, and later decided to press charges.

Busbee testified that she did not take the saw, that she discovered the saw in her car and realized it belonged to Bush, and that she was on her way to return the saw to Bush when he found her and retrieved it. She further testified that she had been stopped by Walter Ellis to discuss another matter unrelated to the saw. The State argued that appellant did not intend to return the saw but instead intended to deprive Bush of his property.

Decided July 30, 1993.

Fuller & McFarland, Thomas R. McFarland, for appellant.

Howard S. McKelvey, Jr., Solicitor, for appellee.

In two enumerations of error, appellant contends that the trial court should not have allowed the State to ask her on cross-examination, “Did you know that [Walter Ellis] was once indicted by a Federal Grand Jury for running a stolen automobile ring for. . . .” At this point, appellant objected and moved for a mistrial. A hearing was held out of the presence of the jury, during which it was established that Busbee was not aware of this fact, if it was a fact. The State never proved that it was. It did not show that the question was asked in good faith and was based on reliable information. See Medlock v. State, 263 Ga. 246 (430 SE2d 754) (1993).

The court overruled the objection and denied the mistrial, and the solicitor elicited the same testimony before the jury. This was improper and should not have been permitted. As appellant argued below, it was irrelevant to the issue of defendant’s intent with respect to the saw. It sought only to create an innuendo that appellant had reason to believe that Ellis might act as a fence for the saw. In its closing argument, the State nurtured this seed in the minds of the jury by fertilizing it with “a little saw like that will bring a nice little cash prize with a good fence if you have got a good fence to work with. It would be hard to trace, too.”

Yet this question, unsupported by any evidence, clearly impugned appellant’s own character by suggesting that she associated with a criminal. It was prejudicial and served no valid purpose. Aldridge v. State, 125 Ga. App. 691, 692 (5) (188 SE2d 835) (1972); Hill v. State, 176 Ga. App. 509, 510 (3) (336 SE2d 276) (1985). “What is forbidden is the State’s introduction in the first instance of evidence whose sole probative value is that it tends to show a defendant’s bad character. [Cit.]” Mathis v. State, 192 Ga. App. 772, 773-774 (3) (386 SE2d 532) (1989). At the very least, it was not relevant to show her belief or intent, because she did not even know of the purported indictment. Nor was it valid impeachment; it did not relate to her record, and it was not a conviction. Beach v. State, 138 Ga. 265 (1) (75 SE 139) (1912).

She is entitled to a new trial.

Judgment reversed.

Cooper, J., concurs. McMurray, P. J., concurs in the judgment only.


author: Birdsong, Presiding Judge.

text:
    A93A0972.
    HAMILTON v. THE STATE.
    (435 SE2d 61)
   Birdsong, Presiding Judge.

Millard Hamilton appeals his judgment of conviction of theft by taking motor vehicle and the sentence. His sole enumeration is that the trial court erred in admitting evidence of the victim’s in-court identification of appellant. On the night of the incident, Officer Francis received a radio report regarding a stolen white, four-door, 1991 Lincoln Towncar with a possible flat tire; he pulled into a local service station and saw an automobile matching that description parked about half-way in the bay door. A tire had just been changed on the vehicle. Appellant was sitting in the driver’s seat of the Lincoln and the other defendant was about to open the passenger door. As the officer was placing the two defendants under arrest, defendant Simpson threw an American Express card in the name of Laurie Williams to the ground. Held:

1. “The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation.” Martin v. State, 193 Ga. App. 581, 582 (1) (388 SE2d 420), citing Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401). The witness, Wagner, was working at the service station when appellant and his co-accomplice brought the stolen Lincoln in to have its front tire fixed (the flat occurred during the theft of the car when it was driven the wrong way against a tiger-claw guard); it took ten to fifteen minutes to change the tire. Without any apparent hesitation of record, Wagner made an unequivocal in-court identification of the accused. The record reveals that Wagner had ample opportunity to view appellant and his co-defendant Simpson at the service station; he recalled the general weather conditions that night and gave an accurate description of the car in question and its year, the details of the business transaction with the defendants to include the suspects’ attempted payment by an American Express credit card which was issued in the name of Laurie Williams, and the defendants ultimate purchase of the tire with cash. Approximately a year had passed since the incident at the day of trial. The record also establishes that, on the morning of trial, the prosecutor showed the witness a book-in picture taken the night the two were arrested. The prosecutor stated on the record that this was not done to coach the witness in his identification, but merely to ensure that defendants were the men who the witness had seen that night. The witness testified that the arresting officer was also present and identified defendants from the pictures at the same time. The arresting officer testified that he showed his police report to the witness, Wagner. Wagner, however, testified that he did not identify the men because of the picture shown to him that morning or because of anything some other person may have done. He believes he could have made an in-court identification even if not shown the picture that morning. As to Wagner, under the totality of the circumstances, we are satisfied that the identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. McCoy v. State, 190 Ga. App. 258, 260 (3) (378 SE2d 888). Moreover, “the witness’ in-court identification may still be admitted if it has an ‘independent origin’ from [any] illegal identification procedures involved.” Id. at 261. Considering the totality of the circumstances, as well as the witness’ ability to identify appellant without hesitation or equivocation, notwithstanding the passage of time until trial, we find that there existed “independent circumstances” for the witness’ in-court identification within the meaning of Martin, supra at 583, and McCoy, supra.

Applying the same tests, we reach the same result regarding the in-court identification made by the arresting officer, Officer Francis. Officer Francis looked at photographs of defendants prior to the preliminary hearing, and at his request, again on the day of trial. The officer requested to see photographs because the names the defendants gave at the time of arrest did not match the names issued on the subpoena, and he was trying to determine which person matched which name on the subpoena. It was only after the officer had identified the photographs by giving each the name which that particular defendant had given at arrest time that the prosecutor told him the actual names of the men in the photographs. The officer first identified appellant from the photograph as being the defendant arrested who had claimed he was “Brinkman”; then the prosecutor told him that the man was appellant Hamilton.

In view of the totality of the circumstances, we are satisfied that the identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. McCoy, supra. Moreover, considering the totality of the circumstances, as well as the arresting officer’s ability to identify appellant without hesitation or equivocation, notwithstanding the passage of time until trial, we find that there existed “independent circumstances” for the arresting officer’s in-court identification, within the meaning of Martin, supra at 583, and McCoy, supra.

Appellant’s sole enumeration of error is without merit.

2. Additionally, appellant’s oral pretrial statement was received in evidence wherein he admitted to having driven the stolen Lincoln on the night of the incident and to having stopped at the gas station to have a flat tire repaired. Appellant subsequently testified in his own behalf and made an admission in judicio that he had driven the 1991 or 1992 Lincoln from the rental company and had stopped at the service station to get the flat tire fixed; however, appellant maintained that he had given a girl, named Gwen, money to rent the car for them, and that they merely took possession of the car from her after they believed she had rented it. Even assuming error had occurred in the admission of in-court identification evidence of appellant as being the person who had been driving and was arrested sitting inside the stolen vehicle, we find that in view of the overwhelming evidence of record regarding appellant’s identification as the driver of the vehicle on the night of the incident that any such error would be harmless beyond a reasonable doubt. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38).

Decided August 4, 1993.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1423.
    LORD v. MONEY MASTERS, INC.
    (435 SE2d 247)
   Birdsong, Presiding Judge.

Plaintiff Richard S. Lord filed a defamation suit alleging that agents of Money Masters, Inc. intentionally made false statements to others that Lord embezzled money, and caused Lord to be arrested for theft. According to Money Masters, Lord embezzled $125,000 in money orders after Lord bought appellee Money Masters’ check-cashing business. The money was to be refunded by appellee to third parties who had issued the money orders. According to appellee, when Lord refused to return the money, appellee had Lord arrested for theft.

Appellee moved for summary judgment based on Lord’s attorney’s agreement to a settlement by which Lord would release all claims against appellee and repay the money, and appellee would drop the criminal charges. However, the day after this settlement was allegedly agreed to, Lord’s attorney told appellee’s attorney that she had made a mistake and that Lord would not release all his claims. Lord did not execute the general release. He executed a release only of his claims arising out of the arrest. Lord’s attorney sent this release and the money to appellee’s attorney and asked appellee to forward the money to the issuers of the money orders. Appellee did so, which relieved its own liability, and asked the district attorney to drop the criminal prosecutions.

The trial court granted summary judgment to appellee, finding that while there was a dispute whether the attorneys ever agreed to the specific terms of appellee’s general release, it is undisputed that on appellee’s receipt of the limited release executed by Lord and the money, “and in reliance thereon,” appellee undertook all actions which it had agreed to undertake. The trial court granted summary judgment to Money Masters as to all claims. Lord appeals. Held:

Money Masters contends Lord’s attorney’s initial agreement to its settlement is binding on Lord under Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544). However, Brumbelow is to be narrowly construed and we are not authorized to extend its holding out of context of its facts. Addley v. Beizer, 205 Ga. App. 714, 720 (423 SE2d 398), cert. denied. See, e.g., Bridges v. Bridges, 256 Ga. 348, 350 (349 SE2d 172).

Although Brumbelow at 675 held the attorney’s authority “may be considered” plenary, it did not say an attorney has absolute authority in fact, for he does not have such authority. Lewis v. Uselton, 202 Ga. App. 875, 879 (416 SE2d 94), cert. denied. The law is: “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” OCGA § 15-19-6. State Bar DR 7-102 (A) (9) provides: “[A] lawyer shall not. . . settle a legal proceeding or claim without obtaining proper authorization from his client.” “Special authority” means something more specific than the general authority which attorneys have. Vandiver v. McFarland, 179 Ga. App. 411, 413-414 (346 SE2d 854), cert. denied. An attorney can generally “obtain” “special authority” only when a specific settlement is proposed (Lewis at 880), or where he had prior authority to settle within certain limits.

Attorneys cannot legally or ethically compromise his client’s claims or rights without “obtaining” (DR 7-102 (A) (9)) “special authority” (§ 15-19-6) for the settlement proposed. An attorney may not assume opposing counsel has a right which he knows he himself does not have. See Lewis at 878. Brumbelow is strictly construed because enforcement of unauthorized settlements significantly alters the legal and property rights of clients, promotes uncertainty in legal dealings, propagates litigation, and removes even the illusion of fidelity which is the bar’s stock in trade. Id. at 879. It puts the burden on the client to prove his attorney breached his trust and sacrifices the delicate relation of trust between client and lawyer, merely to give the opponent a bonus in the form of a settlement he had no right to expect in the first place. Vandiver at 412.

When a client employs an attorney, he does not lose his power to say whether he will compromise, and the attorney does not become owner of the litigation so as to be able to sell or give away his client’s rights. Evans v. Brooke, 182 Ga. 197, 207 (184 SE 800); Addley at 719-720. If unauthorized settlements are routinely enforced, “occasions might arise where a client’s entire property . . . might be agreed away, in spite of his protest, and he might be remitted to a suit [against his own attorney] by which nothing could be realized.” Davis v. First Nat. Bank of Blakely, 139 Ga. 702, 713 (78 SE 190). An assumption that unauthorized settlements can be enforced is an assumption that unauthorized settlements may be made. The only safeguard to an unauthorized disposition of a client’s claim or defense is to make it generally unenforceable, for if it cannot be enforced there is no point in making an unauthorized settlement or in relying on one. Lewis at 877. There is nothing onerous in making a settlement subject to the client’s approval, or in ascertaining the party’s actual agreement to a specific compromise before relying on it. See Addley at 722. Attorneys should expect that an agreement to settle depends on the client’s approval, and offers and acceptances are generally made on that basis. See Vandiver at 412. This is nothing new.

Under OCGA § 15-19-6 and DR 7-102 (A) (9), Lord’s attorney had no right to compromise his claims without obtaining special authority. Appellee’s attorney should have known this for he had no such right himself. Unless an innocent party suffers actual detriment in justifiable reliance on a settlement, there is no reason to give him a bonus to the detriment of another innocent party. Lewis at 877; see Gen. Communications Svc. v. Ga. Pub. Svc. Comm., 244 Ga. 855, 856 (262 SE2d 96). See Hynko v. Hilton, 198 Ga. App. 308, 310 (401 SE2d 324).

Lord’s attorney advised appellee’s attorney as soon as she learned she had made a mistake. She forwarded the full disputed moneys to appellee’s attorney, with the release actually executed by Lord. A jury might find appellee’s attorney’s acceptance of the money and his action to drop criminal charges were done in reliance on the limited release which Lord executed; this alone prevents summary judgment. Moreover, although appellee contends it did these acts in reliance on the original settlement, such reliance was not innocent or justified, for it was made after appellee’s attorney knew that agreement was unauthorized and unapproved, so he did not deal with Lord’s agent on the assumption that it was authorized. Addley at 720. Nor did appellee’s attorney ascertain Lord’s attorney’s authority by asking Lord to execute the settlement. Id.

The judgment of the trial court is reversed.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.

Decided August 4, 1993.

Laura J. Burton, for appellant.

Campbell & Dreger, Richard J. Dreger, for appellee.


text:
    A93A0673.
    MAYER ELECTRIC SUPPLY COMPANY, INC. v. DeKALB COUNTY.
    (435 SE2d 220)
   Smith, Judge.

DeKalb County and CRJ Corporation, as general contractor, entered into an agreement for a public works project known as the DeKalb County Record Storage Facility. Pursuant to a subcontract between CRJ and Mayer Electric Supply Company, Mayer furnished materials which were incorporated into the public work. When CRJ failed to pay, Mayer sought redress against the surety on the public works bond posted by CRJ and approved by DeKalb County. The surety was insolvent, and Mayer brought this action directly against the county. The county moved for judgment on the pleadings, which was granted by the trial court, and the subcontractor appeals.

The material facts underlying this direct action against the public body by a subcontractor for a public work are identical to those in the recent cases of J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1) (430 SE2d 13) (1993) and Atlanta Mechanical v. DeKalb County, 209 Ga. App. 307, 309 (2) (434 SE2d 494) (1993). There, as here, the county accepted without critical evaluation an affidavit of the general contractor’s non-resident surety, submitted in ostensible compliance with OCGA § 36-82-102. However, the schedule of real estate accompanying the affidavit was so facially irregular as to put the county on inquiry notice of its duty to investigate fully and adequately the solvency of the surety. “While a county is not absolutely liable whenever a surety on a payment bond is insolvent, it may be liable under OCGA § 36-82-102 if it fails to inquire adequately into the solvency and sufficiency of the surety where the circumstances make such failure to engage in further inquiry unreasonable. Clearly, the county does not fulfill its statutory duty as a matter of law by simply obtaining [a piece of paper captioned] payment bond.” (Citations and punctuation omitted.) Atlanta Mechanical, supra at 309 (2). We decline the county’s invitation to revisit the holding of J & A Pipeline Co. v. DeKalb County, supra at 124 (1). There, this court held that the 1991 amendment to OCGA § 13-10-1, by the enactment of subsection (f), merely made express something that always had been a tacit but necessary implication: a surety is not “good and sufficient” unless it is solvent.

Decided June 28, 1993

Reconsideration denied August 5, 1993

Bryant, Davis & Cowden, Larry S. Bryant, Cynthia L. Weese, for appellant.

Patrick F. Henry, Jr., Albert S. Johnson, for appellee.

It has long been the rule that a county may be directly liable to subcontractors and materialmen left unpaid by an insolvent general contractor, when the bond given to the county by the contractor was not such a bond as is required by statute. See Decatur County v. Southern Clay Mfg. Co., 34 Ga. App. 305, 306 (2) (129 SE 290) (1925). A county’s statutory liability under OCGA § 36-82-102 for approving a bond “not taken in the manner and form required” is an express legislative exception to the sovereign immunity of counties. OCGA § 36-1-4; Atlanta Mechanical v. DeKalb County, supra at 308 (1). The trial court erred in granting the county’s motion to dismiss for failure to state a claim upon which relief can be granted.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1345.
    GLOVER v. SCOTT et al.
    (435 SE2d 250)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to determine whether the superior court erred in affirming a denial of unemployment compensation benefits to Frances Glover.

The Board of Review of the Employment Security Agency found as fact that while working at the National Uniform Service, during three months Glover had been tardy eleven times and left early twice. She was given verbal and written warnings, and on September 19, 1991, she was given a final warning that if she was tardy or absent again within that month she would be terminated. On September 19, Glover found out that her son had to appear at a juvenile court hearing on September 23, 1991. On September 20, she informed her manager that she would have to go to court and she was reminded of her warning and told to make the decision for herself. On September 23, Glover left work to attend the hearing and was gone for two hours. When she returned, she was terminated.

The hearing officer found that Glover’s absence on this last occasion was due to circumstances beyond her control, and also found that as a parent she had to appear with her son at juvenile court. Nevertheless, the officer found Glover had sufficient previous attendance problems to justify the termination. The board adopted this finding with one dissent; this was affirmed by the superior court under the “any evidence” rule. Travelers Ins. Co. v. Reed, 151 Ga. App. 861 (261 SE2d 770). Held:

The evidence shows without dispute that Glover was not terminated because of previous work attendance problems. She was given a warning after those infractions, but not fired. Glover was terminated because of her two-hour absence on September 23, 1991, during which she attended the juvenile court proceedings as a party. See D. C. A. v. State of Ga., 135 Ga. App. 234 (217 SE2d 470); OCGA §§ 15-11-25 (3); 15-11-21 (c) (4), and 15-11-26 (b); and see OCGA § 15-11-28 (c).

The fact that Glover had other attendance infractions and had been warned does not constitute evidence in the facts of this case that she was terminated for those other infractions, for it is undisputed that she was not terminated because of those other infractions. She was terminated only after, and because, she was absent from work for two hours on September 23, 1991, to attend juvenile court proceedings with her son. OCGA § 34-1-3 (a) provides that it is unlawful for any employer to discharge or otherwise penalize an employee because she is absent from her employment for the purpose of attending a judicial proceeding in response to a subpoena or other court order or process which requires the attendance of the employee. As it is undisputed that the particular reason Glover was terminated on September 23,1991, was that she was absent from work while attending a judicial proceeding, that termination was in violation of law. To hold otherwise would allow employers to flout the letter and spirit of OCGA § 34-1-3 (a) and to penalize an employee for attending a judicial proceeding by claiming the penalty or termination was for. some other infraction or previous work absence.

Further, the hearing officer specifically found Glover’s attendance at the hearing was due to circumstances beyond her control. A claimant for unemployment benefits is entitled to compensation unless the employer proves by a preponderance of the evidence that the discharge was caused by the deliberate, conscious fault of the claimant. Millen v. Caldwell, 253 Ga. 112, 115 (317 SE2d 818); OCGA § 34-8-2, as amended. Aside from cases where an employee’s infraction involved attendance at a judicial proceeding in accordance with OCGA § 34-1-3 (a), the employer is allowed free rein as far as firing an employee is concerned, but not as to payment of unemployment benefits to the employee. Id. at 114.

The board’s denial of unemployment benefits on grounds that Glover was terminated because she had previous attendance problems is not supported by any evidence; she was terminated because she was absent to attend juvenile court proceedings, and that absence was not due to fault on her part. Therefore, she is entitled under the law to unemployment compensation and the superior court erred in affirming the board’s denial of benefits. i

Decided August 5, 1993.

Laurel S. Gross, Howard G. Sokol, Mary I. Dickerson, Phyllis J. Holmen, Lisa J. Krisher, for appellant.

Michael J. Bowers, Attorney General, Valencia D. Copeland, Jeffrey L. Milsteen, Assistant Attorneys General, for appellees.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1507.
    WEBB v. THE STATE.
    (435 SE2d 251)
   Birdsong, Presiding Judge.

James Webb appeals the order of the superior court denying his “amended” motion for new trial.

Appellant was lawfully detained awaiting a bindover hearing at municipal court; upon returning from his hearing, he began to abuse verbally a female corrections officer. As a result, appellant was handcuffed to a bench inside an inner cell or “cage” within the greater holding area. He then repeatedly asked the corrections officer to allow him to use the bathroom. The corrections officer released appellant’s handcuffs. As she attempted to back out of the inner cell, appellant grabbed her by the collar. Appellant threw her into the wall; he kicked her as he pulled her back on the bench in the inner cell; she was “trying to run through the whole thing and he would pull [her] back.” Each time she tried to run “he would pull [her] back and start banging [her] head into the wall or kicking [her] on the floor.” The detention and attack in the inner cell lasted about 35 minutes; the corrections officer finally lost consciousness. When she regained consciousness, she could not get out of the inner cell until another prisoner opened the door from the outside. The corrections officer ran out of the cell screaming and saw appellant fumbling with the big key ring and attempting to find the key to open the exit door from the holding area. Appellant came back toward the officer to hit her. The officer again grabbed appellant by the shirt; appellant turned and threw or drop-kicked the officer to the floor. The officer testified appellant then slammed her head against the floor repeatedly; “he . . . bumped my head and bumped my head like forever,” until she again passed out. Appellant was “on the floor” with the officer when he was knocking her head against the floor. After the officer lost consciousness, appellant escaped the holding area. He was arrested at the local MARTA station. The corrections officer suffered permanent brain cell damage, which will impair certain basic memory, sense of location, attention and concentration skills.

Appellant was charged with kidnapping, false imprisonment, aggravated assault, and felony obstruction, respectively. He was found not guilty of Count 2, false imprisonment, and of Count 4, felony obstruction; he was found not guilty of kidnapping in Count 1, but guilty of the lesser included offense of false imprisonment; he also was found guilty of Count 3, aggravated assault. His sole enumeration of error is that the evidence is insufficient, as a matter of law, to support his conviction of false imprisonment, as the false imprisonment offense of which he was convicted merged with the aggravated assault. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). The evidence in support of appellant’s conviction for the lesser included offense of Count 1, false imprisonment, and for the separate offense of Count 3, aggravated assault, was legally sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court adequately charged the jury (both as to the independent charge of false imprisonment in Count 2 and as to the lesser included offense of false imprisonment in Count 1) regarding the statutory elements of false imprisonment as promulgated in OCGA § 16-5-41 (a); the jury was also charged as to the offense of aggravated assault.

As to the offense of false imprisonment, for example, the jury could rationally conclude beyond a reasonable doubt from the admissible evidence before it that appellant committed an aggravated assault upon the officer after he first grabbed her by the collar and before he left her unconscious in a locked inner cell. The jury could rationally infer beyond a reasonable doubt from the evidence that the officer was unable to immediately regain consciousness, and was able to leave the inner cell only after a distinct hiatus in time had occurred. The jury also could rationally conclude beyond a reasonable doubt from the admissible evidence that appellant unlawfully detained the officer after she subsequently regained consciousness and was able to exit the inner cell screaming; and, that this separate, albeit shorter, detention period occurred when he threw her to the floor and then, being on the floor with her under his physical control, repeatedly banged her head against the floor until she again lost consciousness. Bryant v. State, 196 Ga. App. 132 (1) (395 SE2d 385). This second criminal episode did not commence until after the officer was able to exit the inner cell. Under these circumstances, it cannot be said that the State used up the evidence establishing false imprisonment in proving the aggravated assault charge. Each offense was established by proof of separate and distinct facts. Compare Butler v. State, 194 Ga. App. 895, 898 (3) (392 SE2d 324) and Gilbert v. State, 176 Ga. App. 561, 562 (2) (336 SE2d 828). The two crimes of which appellant was convicted, although occurring sequentially, constituted separate offenses since each was established by proof of different facts, i.e., each offense was a completed crime when the next was perpetrated on the victim. Compare Dawson v. State, 203 Ga. App. 146, 147 (2) (416 SE2d 125) and Strozier v. State, 171 Ga. App. 703 (4) (320 SE2d 764). Appellant’s enumeration of error is without merit.

Decided August 5, 1993.

J. Russell Mayer, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Rebecca A. Keel, William F. Riley, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Andrews, Judge

text:
    A92A1329.
    KAMMIN v. O’NEAL.
    (435 SE2d 529)
    Decided August 6, 1993.

      Dozier, Akin, Lee & Graham, Lester Z. Dozier, Jr., for appellant.
   Andrews, Judge

In Kammin v. O’Neal, 206 Ga. App. 855 (426 SE2d 633) (1992), we reversed the judgment for defendant O’Neal below due to the court’s failure to allow introduction of O’Neal’s misdemeanor conviction for possession of less than an ounce of marijuana in an attempt to impeach her. Id. at 857 (4). In O’Neal v. Kammin, 263 Ga. 218 (430 SE2d 586) (1993), the Supreme Court reversed, finding such a conviction is not one of moral turpitude. Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court and the trial court’s judgment is affirmed.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Martin, Snow, Grant & Napier, Cubbedge Snow III, for appellee.


author: Pope, Chief Judge.

text:
    A93A0976.
    JORDAN v. THE STATE.
    (435 SE2d 256)
   Pope, Chief Judge.

Defendant Ernest Terrell Jordan appeals his conviction for aggravated assault and criminal damage to property in the second degree. We affirm.

1. The charges against defendant arose out of the beating of a store owner and the destruction of property in the store by three men. Defendant was tried with the two other defendants who were charged with the crimes. The State presented eyewitness testimony that defendant had gone in and out of the store with the other two men and during the commission of the crimes stood outside the store and acted as a lookout. One of the co-defendants testified at trial that defendant was inside the store during the commission of the crimes and it was defendant who used a stick to beat the victim. The co-defendant also presented as evidence an affidavit purportedly signed by defendant stating that the co-defendant was not involved in the crimes. Defendant moved for mistrial or severance on the ground that he was unfairly prejudiced by the admission of the affidavit which further implied that defendant was the one who committed the crimes. Defendant argues the trial court erred in denying his motion and argues he was entitled to severance of his trial from that of the co-defendant on the ground that his defense was antagonistic to that of the co-defendant.

“Abuse of discretion amounting to a denial of due process must be shown before a trial court’s decision on a motion to sever in a non-capital felony case will be overturned.” McKenzie v. State, 187 Ga. App. 840, 846 (8) (371 SE2d 869) (1988). Defendant has not shown a denial of due process in this case. “ ‘[T]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. (Cit.) A showing of harm is necessary. (Cit.)’ [Cit.]” Hill v. State, 193 Ga. App. 401, 403 (387 SE2d 910) (1989). In Hill, we concluded no harm was shown where, as here, even if defendant had been tried separately from the co-defendant who testified against him, no showing was made that the evidence against defendant would have differed because the co-defendant could have testified against him at the separate trial and, moreover, the evidence was sufficient to enable a reasonable trier of fact to find defendant guilty. In Kennedy v. State, 253 Ga. 132 (2) (317 SE2d 822) (1984), the Georgia Supreme Court ruled that the fact that co-defendants blamed each other for the crimes did not, of itself, require severance. Prejudice was not shown where, as here, the co-defendant could have testified at a separate trial and related the same testimony as that presented at the joint trial and the defendant had ample opportunity to cross-examine the co-defendant concerning any antagonistic defenses. See also Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975). Even though the co-defendant’s testimony in this case was antagonistic to defendant, defendant failed to show harm by the trial court’s denial of his motion to sever.

Decided August 6, 1993.

Mitchell D. Durham, for appellant.

Thomas J. Charron, District Attorney, Judith C. Emken, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. During jury deliberations the jury requested additional instructions concerning the definition of the crimes charged against the defendants and the issue of guilt as a party to a crime. The trial court gave an appropriate recharge ás to the elements of the crimes and the issue of guilt as a party to a crime. Defendant objected to the recharge on the ground that the trial court did not also recharge the jury on burden of proof and reasonable doubt. Defendant argues the trial court erred in failing to recharge the jury on these issues. “The need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. [Cit.] The trial court gave additional instructions to the jury which addressed only the jury’s specific questions. We find no abuse of discretion.” Peebles v. State, 260 Ga. 165, 167 (391 SE2d 639) (1990). Contrary to defendant’s argument, this is not a case where the further instruction to the jury was favorable to the prosecution and taken alone might leave an erroneous impression in the minds of the jury so that other instructions favorable to the defense should also have been given. See Brannon v. State, 163 Ga. App. 340 (2) (295 SE2d 110) (1982). The original charge adequately covered the issues of reasonable doubt and burden of proof. Thus, the charge, taken as a whole, was proper. See Taylor v. State, 195 Ga. App. 314 (1) (393 SE2d 690) (1990).

Judgment affirmed.

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


text:
    A93A0902.
    MARTIN et al. v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (435 SE2d 258)
   Smith, Judge.

Roger Dale Martin and his wife sued their landlords, Harold and Evelyn Hight, to recover damages for injuries sustained when Roger Martin fell on the back steps of his rented residence. When the Hights were served with the summons and complaint, they notified Cotton States Mutual Insurance Company, which had issued their standard homeowners’ insurance policy. Cotton States filed an answer to the Martins’ suit on behalf of the Hights under a reservation of rights, and then filed this declaratory judgment action to determine whether coverage existed. The trial court granted the insurer’s motion for summary judgment, and this appeal followed.

The record reveals that the policy had been in effect since 1984, when the Hights had occupied the property. It is undisputed that since 1986, however, the property has been rented to others, including the current tenants, the Martins. The renewal policies were mailed' directly to the lender and the Hights received premium notices at a post office box.

The standard homeowners’ policy in issue provides in pertinent part that coverage under the Personal Liability and Medical Payments to Others portions of the policy will not be provided for “bodily injury or property damage . . . arising out of . . . the rental or holding for rental of any part of any premises by an insured. This exclusion does not apply to . . . the rental or holding for rental of an insured location: (a) on an occasional basis if used only as a residence; (b) in part for use only as a residence, unless a single family unit is intended for use by the occupying family to lodge more than two roomers or boarders. . . .”

Both the Martins and the Hights contend the trial court erred in finding that no coverage existed because this provision is capable of being construed in more than one way and, therefore, must be construed against the insurer. See generally Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989). However, insurance is a matter of contract, and contract law rules and interpretations apply. Rothell v. Continental Cas. Co., 198 Ga. App. 545 (402 SE2d 283) (1991). Words in insurance policy provisions, as in all contracts, are to be construed in their ordinary meaning, Macon-Bibb County Hosp. Auth. v. Continental Ins. Co., 196 Ga. App. 399, 401 (396 SE2d 50) (1990), and despite the appellants’ ingenious attempts at demonstrating the susceptibility of the provision in question to more than one interpretation, the language used in the provision in issue is clear.

When language is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible. Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 593 (337 SE2d 29) (1985). “When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the court must expound the contract as made by the parties. [Cit.]” Burnette v. Ga. Life &c. Ins. Co., 190 Ga. App. 485 (1) (379 SE2d 188) (1989). The policy clearly excludes coverage when the insured location is rented to others, unless it is rented only on an occasional basis for use as a residence, or unless only part of the premises is rented to no more than two roomers or boarders. Neither of these exceptions to the exclusion apply here. Continuous rental since 1986 cannot be deemed “occasional,” and the entire residence was rented. Consequently, no coverage existed for Martin’s injuries, and the trial court properly granted summary judgment to the insurer.

Decided August 13, 1993.

L. Cleveland Burton, Gary Hamilton, Hollingsworth, Richardson & Meeks, W. Gene Richardson, for appellants.

Kinney, Kemp, Pickell, Sponcler & Joiner, L. Hugh Kemp, Joy H. Sawyer, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


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    A93A0962.
    WALKER v. THE STATE.
    (435 SE2d 259)
   Beasley, Presiding Judge.

Walker was indicted in two counts with sale of cocaine and possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). He was convicted of the sale, acquitted of the latter, and sentenced to mandatory life imprisonment as a repeat offender under OCGA § 16-13-30 (d), having previously pled guilty to possession with intent to distribute on February 12, 1990. On appeal, he enumerates as error the denial of effective assistance of trial counsel, a claim asserted and denied in the amended motion for new trial.

“ ‘When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below the objective standard of reasonableness,’ — that is, ‘reasonable considering all the circumstances.’ [Quoting Strickland v. Washington, 466 U. S. 668, 688 (104 SC 2052, 80 LE2d 674) (1984).] And, that ‘there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability suificient to undermine confidence in the outcome.’ Id. at 694.” Lloyd v. State, 258 Ga. 645, 647 (2) (373 SE2d 1) (1988).

Appellant claims counsel was ineffective: (a) in agreeing to allow him to be tried in prison clothing rather than seeking a continuance to obtain suitable civilian clothing; (b) in failing to advise him that a conviction for sale of cocaine would result in a mandatory life sentence.

(a) Prior to commencement of trial, defense counsel advised the court that appellant was attired in prison clothing. A deputy sheriff assigned as the court’s bailiff gave sworn testimony that he offered appellant blue jeans and a shirt to wear at trial, but that he refused the civilian clothing, stating that he would remain in the jail-issued clothing, which consisted of blue pants and pullover top, rather than dress in the offered clothing. He wanted his own clothing. Appellant’s counsel inquired whether the clothing worn by appellant displayed any markings identifying it as prison garb, to which the sheriff replied in the negative.

Counsel explained his failure to seek a continuance: “The State had filed a . . . notice of presenting similar transactions. . . . [The] prosecuting attorney had already told me that week that he did not have his witnesses there for the similar transactions. There was no way in the world that I was going to move for a continuance . . . and have the State ready to present evidence of the similar transactions.” Appellant has not “ ‘overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.’” [Cits.]” Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990). Compare Cochran v. State, 262 Ga. 106 (2) (414 SE2d 211) (1992).

(b) Prior to trial, the State agreed to accept a guilty plea presumably to a lesser offense, in exchange for which it would recommend the imposition of a five-year sentence, to serve two years. Trial counsel stated on the record prior to the commencement of trial: “[Appellant] was going to take the plea, we had him over here Monday. At that point, he advised me that he was no longer interested in the plea. . . .”

Trial counsel testified at the hearing on motion for new trial that he informed appellant on numerous occasions that if convicted, he was facing a life sentence because of a previous drug conviction. On the day appellant changed his mind about accepting the plea offer, “I asked him specifically you realize you are talking about a life sentence, and he just blew it off.” He explained the differential in jail time with respect to the two sentences: “We talked about that until I was blue in the face. I specifically told him that he was looking at seven years without parole.” He adamantly refused counsel’s repeated recommendation that he accept the offer to plead.

Decided August 13, 1993.

Richard A. Grossman, for appellant.

Lewis R. Slaton, District Attorney, Joseph F. Burford, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Although counsel expressed some misunderstanding as to whether conviction of either count (selling or possession with intent to distribute) carried a mandatory life sentence, the court was authorized to find that he repeatedly informed appellant that if convicted he would receive a life sentence as a repeat drug offender and strongly urged him to accept the plea offer.

Even assuming counsel was mistaken and incorrectly advised appellant about the sentencing consequence following conviction for selling cocaine, he has not demonstrated that “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.]” Jowers, supra at 462 (2). It is only after the fact that he says he would have accepted the plea offer, but when he made the decision he still faced possible conviction of possession with intent, which he rightly had been informed carried a mandatory life sentence.

In Lloyd v. State, supra at 645 (2), a defendant was denied “reasonably professional assistance” under Strickland where counsel failed to communicate that an offer to plead guilty had been extended by the State. In assessing whether prejudice had been shown under the second prong of Strickland, the Court applied a case-by-case analysis: “We prefer to examine the facts of each case and grant relief where there is at least an inference from the evidence that the defendant would have accepted the offer as made or something similar.” Id. at 648. Prejudice was not shown in Lloyd because the evidence led to “the unmistakable conclusion that [defendant] would not have accepted or even considered the offer to plead guilty. ...” Id. at 648-649.

The plea offer was communicated to Walker, who repeatedly rejected counsel’s advice that he accept it. “[Prejudice can only be shown .by some indication that the defendant was amenable to the offer made by the state.” Id. at 648. The undisputed evidence shows that appellant knew about the offer but was disinterested despite his counsel’s repeated entreaties. Prejudice has not been shown.

Appellant has not been denied effective assistance of counsel under Strickland.

Judgment affirmed.

Cooper and Smith, JJ., concur.


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    A93A1055.
    CRAWFORD v. THE STATE.
    (435 SE2d 64)
   Beasley, Presiding Judge.

Appellant Crawford was convicted of armed robbery. OCGA § 16-8-41. The evidence showed that although the crime was actually perpetrated by others, appellant was a party. OCGA § 16-2-20. He appeals the denial of his motion for new trial on general evidentiary grounds as well as on the specific ground that no evidence was presented showing that he knew a weapon would be used.

Construed in a light most favorable to the verdict, the evidence showed that the robbery was perpetrated by John Crowe and Randy Espinosa at appellant’s suggestion. These three and Susan Davis were drinking beer one night. After Espinosa and Crowe said they wanted to get some money, appellant suggested they rob a pizza delivery man, advising that this was an easy crime to get away with, that you just ask that it be delivered to another apartment and then wait around the corner and go and get the money. Davis looked up the number in the telephone book, and Crawford called the restaurant. Crowe obtained two ski masks, and with Espinosa went to the designated apartment to wait. After the delivery man left the apartment, the two accosted him and robbed him of approximately $110 and his pizzas.

Crowe testified that he had given a knife to Espinosa a few days before the robbery and that he did not see it again until Espinosa displayed it menacingly during the robbery. Espinosa testified that Crowe had the knife. Davis testified that Crowe had a knife. She was not asked nor did she indicate whether appellant saw or was aware of it.

After the robbery, Espinosa and Crowe returned to Davis’ apartment. Espinosa gave some of the money to appellant and Crowe. The group of four then ate the pizzas. Appellant and Crowe later gave the money back to Espinosa to buy more beer.

After the robbery, Davis and appellant asked Crowe’s aunt to provide Espinosa and appellant with an alibi if they needed one. Davis also suggested that Crowe, who was a juvenile, take the blame, and appellant asked whether that could be done.

Appellant requested a charge on the lesser offense of theft by receiving stolen property but not on any lesser included robbery offense. The jury was given the charge requested but rejected it.

1. As to knowledge of weapon use, appellant relies not upon Georgia cases, but rather upon United States v. Hamblin, 911 F2d 551, 557-558 (9, 10) (11th Cir. 1990), and United States v. Pendegraph, 791 F2d 1462 (11th Cir. 1986). They are not binding on us, although they are instructive. Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 323 (8) (291 SE2d 238) (1982).

In Hamblin, supra, the defendant was convicted of two counts of unlawful use of a firearm in connection with a bank robbery in violation of 18 USC § 924 (c). Based upon the second conviction, he was given a mandatory 20-year sentence without possibility of parole. The Court of Appeals found the evidence insufficient to support one of the § 924 (c) convictions and vacated the sentence. Citing United States v. James, 528 F2d 999, 1015 (5th Cir. 1976), the court held that the government had the burden of proving that defendant (the getaway driver) shared the same unlawful intent of his co-defendant (the actual perpetrator of the robberies) with respect to the firearm charges. Reversal was based on the lack of evidence that defendant knew of the firearm used by the co-defendant to perpetrate one of the robberies.

In the James case, the court affirmed the § 924 (c) conviction for carrying a firearm in the commission of a felony even though defendant was not present, because he was instrumental in organizing the incident that erupted in gunfire, as noted in Hamblin, supra at 558, n. 3. James held, “ ‘There must exist a community of unlawful intent between the accessory and the perpetrator of the crime, but “. . .an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him.” ... It is not essential that the accessory know the modus operandi of the principal. . . .’ [Cit.]” 528 F2d at 1015, n. 22.

James accords with Georgia law. “The elements of proof that one is a party to a crime or an accomplice requires proof of a common criminal intent. [Cits.]” Jones v. State, 250 Ga. 11, 13 (295 SE2d 71) (1982) (affirming the murder conviction of a defendant who drove the triggerman to the crime scene, there being sufficient evidence to infer defendant’s prior knowledge that his accomplice would commit murder, as opposed to engaging in some unrelated lesser criminal scheme). “[W]hen individuals associate themselves in an unlawful enterprise, any act done- in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.” Shehee v. State, 167 Ga. App. 542, 543 (1) (307 SE2d 54) (1983). It was held that Shehee could be convicted of armed robbery, for he provided an accomplice with a gun and instructed him to kidnap the victim for ransom and the accomplice had robbed the victim as well.

“ ‘[A] criminal conspiracy is a partnership in crime, and . . . there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. . . . And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose.’ [Cit.]” Burke v. State, 234 Ga. 512, 514 (216 SE2d 812) (1975). Burke held that where two or more persons conspire to rob another, and one of the conspirators in furtherance of the common design to rob kills the person to be robbed, such killing is a probable consequence of the unlawful design to rob, and all conspirators are guilty of murder.

“Under [OCGA § 16-2-20], as parties to a crime, participants may be convicted of a crime even though they are not the actual perpetrator. [Cit.]” Cargill v. State, 256 Ga. 252, 253 (1) (347 SE2d 559) (1986). There, a conspirator was responsible when a co-conspirator murdered a witness to an armed robbery.

In Pendegraph, supra, defendant (the getaway driver) was convicted of armed bank robbery and bank robbery based on the perpetration of a single robbery. The armed robbery conviction was reversed because there was no evidence directly showing knowledge by defendant that his accomplice would use a gun. The court stated that the jury’s verdict was probably due to its hearing the statement of a third accomplice admitted in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

In this state, a defendant can be convicted of armed robbery even though he might not have had knowledge that his accomplice was going to use a weapon to perpetrate it, so long as it can be found that use of the weapon by the accomplice was naturally or necessarily done in furtherance of the conspiracy to commit the robbery even though not part of the original agreement. See Parham v. State, 166 Ga. App. 855, 856 (1) (305 SE2d 599) (1983). In Crawford’s case, a rational trier of fact was authorized to find beyond a reasonable doubt that appellant was a party to the armed robbery and that his accomplice’s use of a weapon to perpetrate it was naturally done in furtherance of the conspiracy even if not part of the original agreement. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). He had masterminded the plan and left to Crowe and Espinosa the manner in which they would extract the money from the victim.

Decided August 13, 1993.

Wallace & Clayton, Wallace C. Clayton, for appellant.

Thomas J. Charron, District Attorney, Thomas A. Cole, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. The credibility of the testimony of witnesses is for the jury, and all conflicts in the evidence are resolved in favor of the verdict. Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978). “While there might be discrepancies as to many of the details of the crime, as to the core issue — was the defendant a participant? — there was no such conflict in the testimony of the accomplices so as to demand a finding for the defendant or to require the grant of a new trial.” Slocumb v. State, 164 Ga. App. 114, 115 (296 SE2d 409) (1982).

Judgment affirmed.

Cooper and Smith, JJ., concur.

       Under Georgia law, the bank robbery conviction would have been challengeable on substantive double jeopardy grounds. See Roberts v. State, 228 Ga. 298, 299 (2) (185 SE2d 385) (1971).


text:
    A93A1079.
    ADCOX SERVICE COMPANY, INC. v. ADDERHOLD.
    (435 SE2d 262)
   Beasley, Presiding Judge.

Adderhold sustained second and third degree burns while using a commercial convection steamer in the kitchen at St. Anne’s Terrace retirement home, where she was employed as a cook. She sued the seller and installer of the equipment and Adcox Service Company, Inc., which serviced the steamer on two occasions. The complaint against the seller and installer was dismissed without prejudice. On interlocutory review, we reverse the denial of Adcox’s motion for summary judgment.

The complaint alleged that Adcox was hired by Adderhold’s employer to perform “maintenance, cleaning and preventive care to the subject steamer from the time of its installation up until the time of plaintiff’s injury . . . [that appellant] was negligent in its duty to provide cleaning, preventive maintenance and purging of the drain, and specifically was negligent in failing to keep the drains . . . free from food particles, was negligent in failing to notice that the drain was of a too small diameter to provide proper drainage in accordance with the [manufacturer’s] specifications . . . and failed to replace, or require or recommend replacement of the drain” to appellee’s employer.

The summary judgment evidence showed that Adcox had no involvement in the installation of the steamer or the drainage system. There was no service or maintenance contract between it and St. Anne’s Terrace to provide systematic or periodic maintenance of the kitchen equipment. Adcox serviced the equipment only when asked to do so by St. Anne’s Terrace. It denied any responsibility for maintaining, cleaning or providing preventive care to any of St. Anne’s kitchen equipment.

Seven months prior to the incident, an Adcox service technician was called to St. Anne’s Terrace to repair a deep fryer. While there, he was asked to look at the steamer because “too much steam was coming out around the door.” He removed the steam door gasket, cleaned and reinstalled it, and ordered a new gasket because it did not seal. The technician did not inspect the drain on that occasion because, “they were not complaining about the drain.” The steamer was operating properly when he concluded his visit.

Another technician returned about six weeks later to install the new gasket. He wrote on the invoice on that occasion: “Drain on . . . steamer is too small. Needs bigger pipe.” The service technician repeated his findings to St. Anne’s food service manager, who read and signed the invoice. She reported the problem to the in-house maintenance director who was to “handle the situation.” Appellant was not called back to modify the drain and nothing further was done in-house to correct the defect prior to appellee’s injuries, some five months later. The drainage pipe had been installed by someone in St. Anne’s maintenance department.

On the day following the incident, appellant’s technician was called to St. Anne’s to find and correct the defect. He concluded that the steamer had been installed improperly and condemned it as dangerous. He told St. Anne’s food service manager that the drain line had been improperly reduced from the factory specification of one inch, to one-quarter inch. The steamer malfunctioned, emitting water and steam due to pressure resulting from the improper drain installation. Appellant submitted a bid to St. Anne’s for the cost of correcting the defect but received no response.

Appellant has discharged its burden as defendant-movant on summary judgment by deposition and affidavit testimony that there is an absence of evidence as to liability for the negligent installation or regular maintenance and repair of the drainage system. Appellee has produced no counterevidence in this regard giving rise to a triable issue of fact. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Because the first service technician failed to inspect the drain when asked to “look at the steamer,” appellee asserts that a question of fact remains as to whether appellant breached a duty to repair and to adequately inform of the existence of a dangerous condition. The undisputed evidence shows that appellant did advise St. Anne’s of the faulty drainage system and recommended replacement, and that St. Anne’s elected to remedy the defect itself, but never did so.

“In certain circumstances, an independent contractor may be liable for damages resulting from the work he has performed or failed to perform in connection with which he has been employed. [Cits.]” Barry v. Stevens Equip. Co., 176 Ga. App. 27, 29 (2) (335 SE2d 129) (1985). However, as in Barry, “[appellee] does not assert, nor is there any evidence, that [her] injuries were sustained as a result of any work that was actually undertaken by [appellant]. Nor does [s]he contend that [her] injuries were sustained as a result of any failure by [appellant] to perform work which it was specifically requested to perform. Instead [appellee’s] allegations of negligence are that, merely because [appellant] had knowledge of the alleged defect, it had a duty to take measures to correct the defect or warn of its danger.” Id. at 29. No such duty is placed on an independent contractor. Id. In the absence of a legal duty, we need not address a second element essential to actionable negligence, i.e., “a legally attributable causal connection between the conduct and the resulting injury.” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

Decided August 16, 1993.

Long, Weinberg, Ansley & Wheeler, Alan L. Newman, John K. Train IV, for appellant.

McGee & Oxford, Douglas R. Powell, for appellee.

Appellee’s reliance on Shetter v. Davis Bros., 163 Ga. App. 230 (293 SE2d 397) (1982) and Floyd v. Morgan, 106 Ga. App. 332 (2) (127 SE2d 31) (1962), is misplaced. The former involved a contractor’s liability for ignoring dangerous defects in design while constructing a swimming pool. In the latter, actionable negligence was found against an independent contractor for the faulty installation and repair of furnace. Both are inapposite.

Judgment reversed.

Cooper and Smith, JJ., concur.