author: Deen, Presiding Judge.

text:
    73984.
    THE STATE v. BRYANT et al.
    (356 SE2d 656)
   Deen, Presiding Judge.

Appellees Christopher Lawrence Bryant and Olen Earl Bryant were charged with the offense of burglary on March 29, 1986, the indictment alleging that they “without authority and with intent to commit a felony therein, did enter the building of Ponderosa Systems, located at 3950 Jonesboro Road, Forest Park.” A second count charged Olen Earl Bryant with possession of a knife during commission of a crime.

At trial the state presented evidence that a patrol officer noticed a truck parked behind a vacant building that used to house a restaurant and upon investigation saw that a door at the back of the building was open. The officer called for backup help and entered the building, where he found appellants moving kitchen equipment around. One of them was holding a rolled up piece of paper which was burning. After appellees were arrested the investigating officers “found places on the floor where paper had been wadded up and had been set on fire evidently so they could see what they were doing because the electricity had been turned off.” One officer testified that in some of these places, if the paper “had caught up real good, the place could have caught on fire.” The assistant district attorney was allowed to introduce in evidence over objection several pieces of this burned paper to show “the potential felony of arson.” An agent of the building’s owner was questioned as to what the financial loss to the company would have been “if the building had burned down.” The fire department investigator testified that if one of the fires had gone undetected “it could have destroyed the interior of the building.”

When the state rested its case, defense counsel moved for a directed verdict on the ground that there was no evidence the appellees started the fires found by the police and thus the state had failed to prove any intent to commit a felony. The state responded that it was “also contending that the other felony that was going to be committed was a theft . . . and therefore, a directed verdict [was] not merited at [that] time.” The court and counsel discussed which degree of arson the state was seeking to establish and the court ruled that there had been no showing that the fires started endangered human life, as required for arson in the first degree (OCGA § 16-7-60); no evidence that there was any damage to the building, as contemplated by arson in the second degree (OCGA § 16-7-61); and no evidence that any personal property was damaged, as outlined by OCGA § 16-7-62, so as to constitute arson in the third degree. The court further noted that “[a]s to the issue of felony theft, that specific allegation has to be alleged in the indictment. Theft is one way of committing burglary. Theft has not been alleged.” The trial court then orally granted the motion for directed verdict as to the charge of burglary. Upon further motion of defense counsel, to which the state declined to respond, a directed verdict of acquittal was also directed on the second count of the indictment, and the trial court discharged both defendants, stating that the state had “failed to make out a case.”

Decided April 6, 1987

Rehearing denied April 22, 1987

Robert E. Keller, District Attorney, Tracy L. Graham, Assistant District Attorney, for appellant.

Linda S. Cowen, Martin L. Cowen III, for appellees.

The state appeals from the order granting appellees’ directed verdict of acquittal and discharging them from custody, contending that such an appeal is available under OCGA § 5-7-1 because the order amounted to no more than a dismissal of the indictment. It concedes, however, that it may not appeal a directed verdict of acquittal where the trial court finds that the evidence was insufficient to support a conviction. See in this connection State v. Williams, 246 Ga. 788 (272 SE2d 725) (1980); State v. Williams, 172 Ga. App. 708 (1) (324 SE2d 557) (1984).

Looking to the substance of what the trial court did here, we disagree with the state that the order appealed from is not a directed verdict of acquittal on the merits. In the two Williams cases (which involved different defendants), the verdicts were directed because of defects in the indictments. However, it is clear from the transcript here that the grant of appellees’ motion rested on the trial court’s determination that the state did not establish the essential elements of burglary as defined by OCGA § 16-7-1, in that the evidence adduced at trial was insufficient to show the intent to commit the felony of arson and the indictment failed to allege the intent to commit a theft. Thus “a new trial would be barred by the double jeopardy clause of the Fifth Amendment. [Cits.] The government cannot appeal such a directed verdict of acquittal, even if it is erroneously granted. [Cit.]” State v. Williams, 246 Ga. 788, 789, supra; OCGA § 16-1-8 (b). Cf. Holloman v. State, 168 Ga. App. 683 (1) (310 SE2d 734) (1983). Since the trial court ruled that the state failed to prove its case as charged and tried, it cannot now appeal appellees’ acquittal and subject them to a new trial on the merits.

Appeal dismissed.

Birdsong, C. J., and Pope, J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    73711.
    LEMKE v. SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY.
    (356 SE2d 739)
    Decided April 22, 1987.

      Franklin D. Rozier, Jr., Richard D. Phillips, for appellant.

      Terry A. Dillard, Bryant H. Bower, Jr., for appellee.
   Benham, Judge.

Appellant brought an action against appellee seeking specific performance of certain provisions of an insurance policy, as well as damages stemming from appellee’s alleged breach of the insurance contract. This appeal followed the trial court’s grant of summary judgment to appellee.

Our initial inquiry must be whether we have jurisdiction to consider this matter. An action seeking specific performance seeks equitable relief (see 20/20 Vision Center v. Hudgens, 256 Ga. 123, 131 (345 SE2d 330) (1986); Morgan v. Mitchell, 209 Ga. 348 (2) (72 SE2d 310) (1952)), and an appeal from a judgment rendered pursuant to a request for equitable relief is within the jurisdiction of the Supreme Court. 1983 Ga. Const., Art. VI, Sec. VI, Par. III (2). See Iannicelli v. Iannicelli, 169 Ga. App. 155 (2) (311 SE2d 850) (1983).

Appellee urges jurisdiction in this court on the ground that, should appellant succeed on appeal, money damages could be ascertained to adequately compensate appellant, thereby giving him an adequate remedy at law. However, “[d]amages in lieu of specific performance cannot be recovered unless the plaintiff can prove his right to the latter remedy. [Cit.]” Johnson v. Bourchier, 245 Ga. 124 (2) (263 SE2d 157) (1980). See also Golden v. Frazier, 244 Ga. 685 (3) (261 SE2d 703) (1979). It is for the Supreme Court to determine whether any of appellant’s enumerations of error are meritorious.

Case transferred to Supreme Court.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    73897.
    MILLER v. THE STATE.
    (356 SE2d 900)
   Pope, Judge.

Dennis E. Miller, Sr., brings this appeal from his convictions of driving under the influence of alcohol, improper lane change, and speeding. His two enumerations of error challenge the trial court’s refusal to quash the three uniform traffic citations by which he was brought to trial. Held-.

On the basis of the record before us on appeal, we are unable to determine whether defendant’s oral motion to quash made on the morning of trial was sufficient under the circumstances of this case to preserve these issues for appellate review. See generally OCGA § 17-7-111; Sosebee v. State, 169 Ga. App. 370 (5) (312 SE2d 853) (1983); McArthur v. State, 169 Ga. App. 263 (1) (312 SE2d 358) (1983). Assuming arguendo that the motion was procedurally adequate, we turn to the merits.

“When trial has been had before the appellate court reviews the merits of the special demurrer, where no prejudice to defendant has occurred though the indictment or accusation or citation is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. The true test of the sufficiency of an indictment or accusation or citation is not whether it could have been made more definite and certain or, for that matter, perfect, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment or accusation or citation. Thus, a defendant who was not misled to his prejudice by any imperfection in the indictment or accusation or citation cannot obtain reversal of his conviction on that ground.” (Citations and punctuation omitted.) King v. State, 176 Ga. App. 137, 139-40 (335 SE2d 439) (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986). See State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977); Smith v. State, 71 Ga. App. 647 (1) (31 SE2d 737) (1944).

The cited imperfections in this case include incomplete jurats, a change in the time the citations were issued (the arresting officer testified that he had made the changes prior to delivery of the citations to defendant when he remembered the change from standard time to daylight savings time), a misstatement of the code section making DUI a crime (OCGA § 40-6-392 instead of § 40-6-391), and under “remarks” on the citation for speeding the entry “S. on Ga. 21” when defendant was in fact driving north on Georgia Highway 21 (this entry could simply have been descriptive of the scene of the crime — south Rincon as opposed to north Rincon). None of these alleged imperfections amount to anything more than minor and technical deficiencies to which defendant has failed to show that he was unable to adequately prepare his defense or that he was otherwise prejudiced thereby. See, e.g., King, supra; McKinney v. State, 155 Ga. App. 930 (6) (273 SE2d 888) (1980); Curtis v. State, 80 Ga. App. 244 (1b) (55 SE2d 758) (1949). Accordingly, any error in this regard was harmless and defendant’s convictions stand affirmed.

Decided April 22, 1987.

R. Wade Gastin, for appellant.

Horace L. Cheek, Jr., Solicitor, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74005.
    MARIETTA BOARD OF LIGHTS & WATER v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (356 SE2d 737)
   Pope, Judge.

This appeal involves the construction of certain provisions of the Georgia Territorial Electric Service Act (the act), OCGA § 46-3-1 et seq., which was enacted in 1973 (Ga. L. 1973, p. 200) “in order (1) to assure the most efficient, economical, and orderly rendering of retail electric service within the state, (2) to inhibit duplication of the lines of electric suppliers, (3) to foster the extension and location of electric supplier lines in the manner most compatible with the preservation and enhancement of the state’s physical environment, and (4) to protect and conserve lines lawfully constructed by electric suppliers . . . [by] implement [ing] a plan whereby every geographic area within the state shall be either assigned to an electric supplier or declared unassigned as to any electric supplier. . . .” OCGA § 46-3-2. The act also provided certain statutory guidelines for the initial assignment of territories to the various electric suppliers (OCGA §§ 46-3-4 through 46-3-7), and the Georgia Public Service Commission (commission) was vested with the authority necessary to implement the act.

On October 7, 1975 appellant Marietta Board of Lights & Water, appellee Cobb Electric Membership Corporation (CEMC) and other electric suppliers within the Cobb County area filed a joint application with the commission for the purpose of assigning certain areas located in unincorporated Cobb County. Pursuant to OCGA § 46-3-4, which governs the assignment of all areas which were located outside the corporate limits of any municipality as of March 29, 1973, the commission entered an order on November 18, 1975 assigning the area to appellant; however, because CEMC already owned a distribution line in the area, both appellant and CEMC stipulated that CEMC was entitled to exercise 500 foot “corridor rights” with respect to its distribution line, as provided in OCGA § 46-3-4 (4). That subsection, although not employing the term “corridor rights,” gives an electric supplier who owns “[a] line . . . which extends into or completely crosses a land space in which another electric supplier owns a preponderance of the lines . . . the exclusive right to extend and continue furnishing service to all new premises locating at least partially within 500 feet of such line and wholly more than 500 feet from the assignee electric supplier’s lines. ...” Similar corridor rights also exist for those electric suppliers servicing those areas located within municipal limits (OCGA § 46-3-5), but the corridor rights established for those areas extend for only 300 feet.

On February 10, 1982 the City of Marietta annexed this previously unincorporated portion of Cobb County. Appellant, relying on OCGA § 46-3-7 (2) (D), concluded that this annexation reduced CEMC’s corridor rights from 500 to 300 feet and, without the consent or permission of CEMC, began extending service to customers located further than 300 feet from CEMC’s distribution line. CEMC filed a petition with the commission on August 5, 1982 alleging that appellant’s actions were in violation of the act. By order dated March 15, 1985 and by supplemental order dated September 4, 1985, the commission ruled that “the 1982 annexation of the disputed area did not reduce CEMC’s corridor rights with respect to its line from 500 to 300 feet. . . [and thus] CEMC has the exclusive right pursuant to OCGA § 46-3-4 (4) to service those buildings which are either partially or wholly within 500 feet of its distribution line. ...” The Superior Court of Fulton County affirmed the decision of the commission and this appeal ensued.

1. Appellant argues in its first enumeration that the superior court’s order should be reversed and remanded for consideration of the validity of the commission’s conclusions of law, arguing that it is evident from the superior court’s order, which stated that there was “ample evidence to support the orders of the . . . Commission,” but which did not make any statement concerning the commission’s conclusions of law, that the superior court erroneously considered only factual or evidentiary matters, which were not in dispute, and failed to consider appellant’s challenges to the commission’s conclusions of law. We disagree. We are not persuaded that the superior court, which is authorized to consider the sufficiency of the evidence to support the commission’s conclusions on questions of law, see Stevens v. Bd. of Regents, 129 Ga. App. 347 (199 SE2d 620) (1973), failed to consider those matters which were properly before it for review. This enumeration is without merit.

Decided April 22, 1987.

W. R. Robertson III, for appellant.

Michael J. Bowers, Attorney General, Michael J. Henry, Assistant Attorney General, Beppish Kirkland III, L. M. Awtrey, Jr., Toby B. Prodgers, Arthur H. Bomby, James E. Joiner, Barry B. Mc Gough, F. Lawrence Street, Richard G. Tisinger, for appellees.

2. Appellant’s remaining enumerations challenge the commission’s conclusions of law with regard to its interpretation of OCGA § 46-3-7 (2) (D), which the parties agree is applicable to determine the assignment of electrical suppliers in a previously unincorporated area that is annexed in the manner used in the present case. Specifically, appellant relies on that portion of OCGA § 46-3-7 (2) (D) which provides that “fijn any geographic area assigned by operation of this part pursuant to this subparagraph, every secondary supplier shall have, based upon the location of all secondary suppliers’ lines therein on the effective date of the annexation, the exclusive right to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of its line and wholly more than 300 feet from the lines of every other electric supplier. . . .” (Emphasis supplied.) Appellant argues that said language creates a 300 as opposed to 500-foot corridor right with respect to CEMC’s existing distribution line following the annexation of the disputed area by the City of Marietta. As recognized by the commission and as aptly noted by appellees herein, appellant’s construction of OCGA § 46-3-7 (2) (D) completely ignores the statutory mandate contained in the first sentence of that code section, which provides, inter alia, that “so much of . . . [the annexed] . . . area, if any, as was already assigned to any electric supplier shall continue to be so assigned.” (Emphasis supplied.) The statute then goes on to provide the method of assignment for areas which were unassigned prior to annexation. The statutory scheme created by OCGA § 46-3-7 (2) (D) is clear and unambiguous — if an unincorporated area is annexed in the manner provided in that subsection and with respect to that area an assignment to electrical suppliers previously has been made, then that assignment remains unaffected by the subsequent annexation, such as in the case sub judice. However, if the annexed area was previously unassigned (no areas in Cobb County were designated unassigned), then the area is assigned pursuant to the method established in OCGA § 46-3-7 (2) (D), including the establishment of 300-foot corridor rights with respect to secondary suppliers within the area. Consequently, the judgment of the superior court affirming the commission’s orders of March 15, 1985 and September 4, 1985 is affirmed.

Judgment affirmed.

Birdsong, C. J., and Been, P. J., concur.

       With the exception of the commission, which was made a party defendant on appellant’s appeal to the superior court, the remaining appellees were granted leave to intervene before the commission; however, only appellant and CEMC assert a right to extend electrical service within the disputed area.


author: Beasley, Judge.

text:
    73853.
    SHOWALTER v. VILLA PRADO ASSOCIATES et al.
    (356 SE2d 895)
   Beasley, Judge.

This is an appeal from the grant of summary judgment to the owner of the apartments where appellant lived and where he fell and sustained injuries. He is entitled to a jury trial, he contends, because there are genuine issues of material fact so that defendants are not relieved of liability as a matter of law. OCGA § 9-11-56 (c).

In such cases, we must consider that the law favors a jury determination of the issues. “ ‘[(Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.’ [Cit.] Added to that list are related issues of assumption of risk, lack of ordinary care for one’s safety, lack of ordinary care in failing to foresee a condition which could cause injury [Cit.], and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. [Cit.] ‘Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication.’ [Cit.]” Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899) (1985).

Defendants are not entitled to summary judgment unless they negate at least one of the essential elements of plaintiff’s case, and the latter is entitled to a construction of the evidence most strongly in his favor, including the benefit of all reasonable doubts and all favorable inferences. Cunningham, supra at 838.

Applying these principles, the evidence in the record would authorize a jury to find as follows: Showalter was returning to his apartment, where he had lived for several years, after a heavy rain which left puddles of water on the sidewalk. He knew this had occurred previously and on other occasions skirted the puddles. This time he was using an entrance he rarely used and had not faced a puddle here before.

He attempted to walk around the water but could not completely do so because of its size and its proximity to the wall of the building. He knew it was not completely safe to walk through the water so he went to its edge and, as he was placing his second foot down, he slipped on sediment beneath the water, fell, and broke his leg.

The sediment, which he did not see because it was the same color as the sidewalk, collected on the sidewalk from an adjacent grass and dirt hill and was not carried off to a drain. The situation had been brought to the attention of management as a dangerous condition on numerous prior occasions, and it unsuccessfully tried to correct it with restraining logs.

Decided April 9, 1987

Rehearing denied April 23, 1987

Eugene A. Medori, Jr., for appellant.

James H. Fisher II, for appellees.

The focus here is on the superior knowledge aspect of the case. If there is evidence that the owner had “superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property,” it would not be entitled to judgment. “It is when the perilous instrumentality is known to the owner or occupant, and not known to the person injured, that a recovery is permitted.” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (332 SE2d 304) (1985).

“[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982). See also Nicholson v. MARTA, 179 Ga. App. 173, 175 (345 SE2d 679) (1986); Burkhead v. American Legion, 175 Ga. App. 56, 57 (332 SE2d 311) (1985); Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136, 138 (207 SE2d 532) (1974). Plaintiff knew of the water and knew that walking through water is somewhat dangerous, but there is evidence that he did not know there was sediment underneath nor that the sediment caused a slippery condition.

On the other hand, there is evidence that the owner knew both that there was sediment collecting under the water and that this caused a slippery and thus dangerous condition more acute than if only water was present. There was also evidence that the slip was caused by the sediment. “ ‘[Knowledge of defect’ should not be confused with ‘knowledge of danger.’ [Cit.]” Firestone Svc. Stores v. Gillen, 58 Ga. App. 782, 787 (199 SE 853) (1938).

There being some evidence of “(1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee.” Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981), the apartment owner was not entitled to summary relief from liability.

Judgment reversed.

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


author: Carley, Judge.

text:
    73806.
    PARR et al. v. PINSON.
    (356 SE2d 740)
   Carley, Judge.

Appellants Mr. and Mrs. Parr brought this action to recover for damages allegedly resulting from a collision between automobiles driven by Mrs. Parr and appellee. Mrs. Parr sought to recover for personal injuries which she contends were sustained in the collision. Mr. Parr sought to recover for loss of consortium. Following a jury trial, a verdict was returned in appellee’s favor and judgment was entered thereon.

1. Appellants enumerate the general grounds. The evidence was conflicting, and did not demand a verdict in appellants’ favor. “Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and this case was not so plain and indisputable as to justify invading the jury’s province. [Cit.] There being some evidence to support the jury’s verdict, we will uphold the judgment. [Cit.]” Rossville Apts. Co. v. Britton, 178 Ga. App. 194, 196 (2) (342 SE2d 504) (1986). This court considers only the sufficiency of the evidence, not its weight. Foster v. Morrison, 177 Ga. App. 250, 252 (6) (339 SE2d 307) (1985). The evidence was sufficient to support the verdict.

2. The trial court’s giving of a charge to the jury on negligence per se, in general, and on OCGA § 40-6-180, in specific, is enumerated as error.

Evidence was adduced at trial which would authorize a finding that Mrs. Parr drove over the crest of a hill at forty miles per hour. She was familiar with the narrow dirt and gravel road on which she was driving and knew that there was a blind driveway several feet past the crest of the hill. Mrs. Parr was unable to stop before colliding with the rear of appellee’s car as it was pulling into the driveway. “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed . . . when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to . . . other traffic or by reason of . . . highway conditions.” OCGA § 40-6-180. Evidence as to Mrs. Parr’s 40-mile-per-hour speed under the existing circumstances authorized a charge on OCGA § 40-6-180. Cohran v. Douglasville Concrete Prods., 153 Ga. App. 8, 11-12 (2) (264 SE2d 507) (1980). See also Exum v. Long, 157 Ga. App. 592, 594-95 (3) (278 SE2d 13) (1981). Violation of this Code section is negligence per se. Wright v. Dilbeck, 122 Ga. App. 214, 226-27 (4) (176 SE2d 715) (1970). The charge as given by the trial court was a correct statement of the law and was adjusted to the evidence. There was no error.

Decided April 23, 1987.

Roger E. Bradley, for appellants.

R. Clay Porter, for appellee.

3. Appellants enumerate as error the trial court’s giving of a charge on comparative negligence. For the reasons set out in Division 2, the jury was authorized to find that Mrs. Parr’s negligence was a proximate cause of the collision. “ ‘The amount of evidence which makes [a charge on plaintiff’s negligence] appropriate . . . need not be great. It is sufficient if there is slight evidence from which, as here, inferences of negligence can be drawn by the jury. [Cit.]’ [Cit.]” Seay v. Urban Medical Hosp., 172 Ga. App. 344, 347 (4) (323 SE2d 190) (1984). The charge on comparative negligence was proper. See McClure v. Ga. Power Co., 171 Ga. App. 257, 259 (2) (319 SE2d 93) (1984).

4. Appellants enumerate as error the direction of a verdict in appellee’s favor on the issue of punitive damages. “[T]he jury’s verdict in favor of [appellee] as to liability causes even an erroneous removal of the issue of damages from the jury to constitute at worst harmless error. [Cit.] Assuming error, nevertheless, we find no prejudice to the rights of [appellants] in view of the jury’s verdict.” Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 156 (3) (342 SE2d 352) (1986).

Judgment affirmed.

Banke, P. J., .and Benham, J., concur.


text:
    73819.
    MOORE v. LAMAR.
    (356 SE2d 742)
   Carley, Judge.

Appellant-plaintiff initiated this tort action by filing a complaint in the State Court of Fulton County. Included among those who were named as defendants in the style of appellant’s complaint was appellee-defendant “Milton Lamar, individually and d/b/a Lamar’s Regal Room.” In his answer, appellee raised the following as one of his defenses: “[Appellant] has currently pending in the State Court of Fulton County, Georgia, a complaint against R. R. Lamar, individually, and d/b/a Lamar’s Regal Room, being Civil Action, File No. 891599. [Appellee] alleges that he is not the R. R. Lamar named in said complaint, but alleges that [appellant] has attempted to enforce a judgment against said R. R. Lamar against [appellee]. Accordingly, [appellant] must either dismiss Civil Action, File No. 891599 [against R. R. Lamar], or this complaint should be dismissed against [appellee].” (Emphasis supplied.) Appellee subsequently filed a motion to dismiss this action against him. In his motion, appellee realleged the assertions of his answer, including the denial that he is R. R. Lamar. Appellee further alleged in his motion to dismiss this action that appellant’s judgment against R. R. Lamar in Case Number 891599 was obtained by default. Contending that he was “in the vexatious position of defending against two separate complaints based on the identical cause of action,” appellee requested that the trial court enter an order dismissing this action “or, in the alternative, that [appellant] be compelled ... to elect which complaint she desires to prosecute, and to dismiss the complaint she has elected not to prosecute.”

The trial court conducted a hearing on appellee’s motion and entered an order which did not purport to make any finding whether appellee in this case is the R. R. Lamar whom appellant had named as a defendant in Case Number 891599. The trial court’s order merely stated that appellant “shall have 30 days within which to elect whether to dismiss [appellee] Milton Lamar from this case, or whether to dismiss Civil Action, File No. 891599, pending in Fulton State Court.” (Emphasis supplied.) The trial court certified this order for immediate review and this court granted appellant’s application for an interlocutory appeal.

1. The only statutory authority for requiring that a plaintiff elect as between which of two pending actions he will prosecute is OCGA § 9-2-5 (a). That statute provides: “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” The record in this case contains a copy of the complaint that was filed by appellant in Case Number 891599. That complaint was apparently filed in 1983 and named “R. R. Lamar, individually and d/b/a Lamar’s Regal Room” as one of the defendants therein. A review of the complaint in Case Number 891599 shows that it is “upon the same cause of action” as that stated by appellant against appellee herein. However, the allegations of neither appellee’s answer nor his motion to dismiss are sufficient to invoke OCGA § 9-2-5 (a) as authority for the trial court’s order that is presently under review. If Case Number 891599 has proceeded to a judgment on the merits as is alleged in appellee’s answer and motion to dismiss, then that case is certainly no longer pending for prosecution in the trial court. If Case Number 891599 is not pending, whatever defenses appellee may otherwise have to prosecution of this action, such as the defense of res judicata, OCGA § 9-2-5 (a) is not among them.

2. Only if Case Number 891599 is currently pending in the trial court would OCGA § 9-2-5 (a) be an applicable defense in this case. The trial court’s order presently under review does not articulate the basis for its conclusion that Case Number 891599 is in fact still “pending.” However, even assuming that Case Number 891599 may merely be in default and is still pending in the trial court (see § 9-11-55), appellee’s answer and motion to dismiss nevertheless fails to show the applicability of OCGA § 9-2-5 (a). Not only does OCGA § 9-2-5 (a) require two pending actions for the same cause of action, it also requires that both pending actions be “against the same party.” See generally P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 (3) (329 SE2d 545) (1985). In his answer and motion, appellee denied that he is R. R. Lamar. If appellee is not R. R. Lamar, the provisions of OCGA § 9-2-5 (a) are not applicable to this case.

3. Only if appellee is R. R. Lamar would OCGA § 9-2-5 (a) be applicable. The trial court made no specific finding that such is the true state of affairs. However, even assuming that appellee and R. R. Lamar may be one and the same individual and that the trial court’s order is an implicit finding to that effect, the judgment is nevertheless erroneous. Under OCGA § 9-2-5 (a), a plaintiff is given the election as between which of his two pending actions against a defendant he will prosecute only if his two actions have been “commenced simultaneously.” Appellant initiated Case Number 891599 against R. R. Lamar in 1983. Accordingly, if appellee is R. R. Lamar and if Case Number 891599 is still pending, the trial court erred in failing to dismiss this case. See Clark v. Weaver, 159 Ga. App. 594 (284 SE2d 95) (1981).

4. As discussed above, appellee’s answer and motion to dismiss failed to show the applicability of OCGA § 9-2-5 (a) with regard to the pendency of Case Number 891599 and the identity of parties. If Case Number 891599 is no longer pending or if appellee is not R. R. Lamar, then OCGA § 9-2-5 (a) is not applicable authority for the entry of any order whatsoever in this case. Even assuming that the trial court was otherwise authorized to find that OCGA § 9-2-5 (a) is applicable under the existing facts and further assuming that its order does represent a finding in that regard, the judgment entered as the result of any such finding would still be erroneous. On the record before us, a clear determination cannot be made as to whether the trial court erred in its threshold conclusion that OCGA § 9-2-5 (a) would be an applicable defense against appellant’s prosecution of this action or whether it erred merely in the relief that it granted under that statute. Accordingly, although the order must be reversed in any event, we will not, as appellee suggests, direct the entry of a new order which dismisses this case pursuant to OCGA § 9-2-5 (a). Should appellee file a new motion to dismiss the allegations which show the applicability of OCGA § 9-2-5 (a), the losing party as to that motion will be free to pursue whatever appeal rights may be available to such party at that time.

Decided April 23, 1987.

J. Matthew Dwyer, Jr., John C. Yancey, Thomas C. Dempsey, for appellant.

William E. Gray III, Barry A. Karp, for appellee.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    73860.
    MAYFIELD v. ALL AMERICAN QUALITY FOODS, INC.
    (356 SE2d 745)
   Sognier, Judge.

Timothy Mayfield brought suit against All American Quality Foods, Inc. to recover damages for injuries sustained when he slipped and fell while shopping in a grocery store owned and operated by All American. The trial court granted All American’s motion for summary judgment and Mayfield appeals.

Appellant contends the trial court erred by granting judgment to appellee as a matter of law because there remained for jury determination a genuine issue of material fact in regard to the cause of the fall. Appellant testified by deposition that although he had no personal knowledge of the cause of his fall, the store’s co-manager, James Kenneth Satterwhite, approached appellant immediately after the fall, showed him an empty plastic bread wrapper and told him at that time that the bread wrapper was the cause of his fall. Satterwhite, in his deposition, testified he neither showed appellant a bread wrapper nor told him a bread wrapper caused the fall, and further denied any knowledge whatsoever of the cause of appellant’s fall.

While we agree with appellant that a dispute exists concerning the cause of the fall, even should we assume, arguendo, that the bread wrapper did cause appellant’s fall, the trial court’s grant of summary judgment to appellee was still proper. It has long been the rule in Georgia that in slip and fall cases involving foreign substances, before the owner may be held liable, it is necessary that the proof show the owner “ ‘was aware of the substance or would have known of its presence had he exercised reasonable care.’ [Cits.]” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). Appellant has failed to meet this burden. Construing the evidence most favorably to appellant as the nonmovant, see Harris v. Sulcus Computer Corp., 175 Ga. App. 140-141 (1) (332 SE2d 660) (1985), appellant has nevertheless failed to show that appellee had actual knowledge of the bread wrapper. Moreover, appellant has failed to show constructive knowledge. Both Satterwhite and the store employee assigned to sweep the floor testified that the area where appellant fell had been swept free of debris shortly before appellant fell. Appellant has shown only that some employees of appellee were in the “vicinity” where the fall occurred.

Decided April 23, 1987.

John S. D’Orazio, for appellant.

Douglas W. Smith, Daniel B. Simon III, Rodney G. Meadows, for appellee.

“[T]here never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had ‘an opportunity to discover and remove the hazard,’ which can only be shown, and in fact in the early cases was shown, by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it.” Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985). In the absence of such evidence from appellant, appellee may not be charged with constructive knowledge of the danger and thus an essential element of appellant’s case is missing. Since appellee was entitled to judgment as a matter of law, the trial court did not err by granting its motion for summary judgment. See generally Butler v. Terminix Intl., 175 Ga. App. 816, 818 (334 SE2d 865) (1985).

Judgment affirmed.

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


text:
    73871.
    LITTLEFIELD v. SMITH et al.
    (356 SE2d 746)
   Beasley, Judge.

Plaintiff claimed $131.44 from defendants for their failure to reimburse her “for the use of electricity and deposit.” The Magistrate Court of Hall County dismissed the complaint on the basis that the matter had been previously litigated and adjudicated. On appeal to the state court the claim was dismissed for failure to prosecute and because the matter was res judicata. Plaintiff appeals that decision.

1. This is an appeal to the state court which under OCGA § 15-10-41 is treated the same as an appeal to the superior court under OCGA § 5-3-29, encompassing a de novo investigation. It would therefore fit within the bounds of OCGA § 5-6-35 (a) (1) except that section refers only to “[a]ppeals from decisions of the superior courts.” Although logically this type of appeal should also be under the discretionary route of OCGA § 5-6-35, the legislature has not amended that section to include state courts. Thus, a direct appeal is permissible.

Decided April 23, 1987.

Geneva Littlefield, pro se.

Dwight Smith, Kathy Smith, pro se.

2. Plaintiff contends that the trial clerk promised to inform her when the case would be tried; that her absence, and failure to prosecute, resulted not from her neglect but solely from the failure to give her the promised notice. However, no complaint is made as to the other basis of the ruling which was that the issue was res judicata — a matter settled by judgment.

Since an appellant has the burden of showing error by the record, Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981), and Dosier v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (7) (339 SE2d 619) (1985), nothing appearing to the contrary, we presume the holding on this issue was correct. King v. Skinner, 101 Ga. App. 102, 103 (2) (112 SE2d 789) (1960); Saliba v. Saliba, 201 Ga. 681, 682 (1) (40 SE2d 732) (1946). A decision right for any reason will not be set aside. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978). Therefore, it makes no difference whether plaintiff should or should not have been given notice of the trial because she must lose on the merits of her complaint.

Judgment affirmed.

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


text:
    73926.
    73927.
    In the Interest of J. R. F. In the Interest of D. A. V.
    (356 SE2d 747)
   Carley, Judge.

Appellants were involved in a physically violent encounter with another juvenile. As a result, petitions alleging appellants to be delinquent were filed. The juvenile court found that appellant J. R. F. was delinquent by virtue of the commission of the crimes of aggravated assault and criminal damage to property in the second degree. Appellant D. A. V. was found to be delinquent by virtue of the commission of simple battery. Appellants filed separate notices of appeal from the orders adjudging them to be delinquent. As the result of the virtual identity of the enumerations of error, the two appeals are hereby consolidated for disposition in this single opinion.

1. Appellants enumerate as error the juvenile court’s failure to make appropriate findings of fact with regard to the issue of delinquency.

OCGA § 15-11-33 (a) provides, in relevant part: “[I]f the petition alleges that the child is delinquent . . . , after hearing the evidence the court shall make and file its findings as to whether the acts ascribed to the child were committed by him.” (Emphasis supplied.) In the cases sub judice, the juvenile court heard the evidence and made findings that appellant J. R. F. had committed acts of aggravated assault and criminal damage to property and that appellant D. A. V. had committed an act of simple battery. There was no error in failing to make more explicit findings. Compare Crook v. Ga. Dept. of Human Resources, 137 Ga. App. 817 (224 SE2d 806) (1976) (deprivation); W. R. G. v. State of Ga., 142 Ga. App. 81 (235 SE2d 43) (1977) (deprivation); In the Interest of A. A. G., 143 Ga. App. 648 (239 SE2d 697) (1977) (deprivation); Jackson v. Jackson, 145 Ga. App. 564 (244 SE2d 91) (1978) (deprivation).

2. The juvenile court held that testimony concerning the alleged victim’s general reputation for violence could not be given by any witnesses other than appellants. The basis for this was the court’s ruling that, unless the victim’s general reputation for violence was actually known to appellants, that reputation would be irrelevant to their justification defense.

When the predicate for the admission of evidence of a victim’s general reputation for violence has been laid in a given case, that evidence “may come from two sources, the accused or a witness. Where such testimony comes from a witness, there is no requirement that it be shown that the accused knew of the [victim’s] general reputation for violence. Assuming that such reputation was not known to the accused, the testimony of the witness is nevertheless admissible to corroborate the testimony of the accused that the [victim] was violent on the occasion in question on the theory that a person with a general reputation for violence is more likely to have been violent toward the accused than a person with a gentle reputation. ‘It is more probable that a person will act in accordance with his character (disposition) than that he will act contrary to it.’ [Cit.]” Henderson v. State, 234 Ga. 827, 829-830 (1) (218 SE2d 612) (1975). There is no contention by the State that a prima facie case for appellants’ defense of justification had not been made. If such a prima facie case was made, then evidence of the alleged victim’s general reputation for violence was admissible. Accordingly, the juvenile court erred in refusing to allow witnesses other than appellants to testify as to that general reputation.

The State urges that the error was harmless because some testimony bearing on the victim’s general reputation for violence was admitted. See generally Bennett v. State, 254 Ga. 162, 165 (3a) (326 SE2d 438) (1985). The record does show that evidence of the victim’s general reputation was admitted on one occasion. However, the record also shows that, when the issue of the relevancy of such testimony had first been raised, the juvenile court stated that, although appellants were free to question one of their witnesses about the victim’s general reputation for violence, the response to that question would have no “significance.” Accordingly, although testimony with regard to the victim’s general reputation for violence may have been admitted, it cannot be said that the juvenile court, sitting as the trior of fact, considered it. It would appear that, rather than the erroneously excluded testimony being cumulative of the testimony that was admitted, the properly admitted testimony was erroneously considered as cumulative of that which was excluded. Under these circumstances, it cannot be said that it is highly probable that the error did not contribute to the ultimate finding that appellants had committed delinquent acts rather than acts of self-defense. Appellants are entitled to a new hearing wherein all relevant evidence will be admissible and properly considered by the trior of fact.

Decided April 23, 1987.

Victor C. Hawk, for appellants.

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

3. Appellant J. R. F. enumerates as error the finding that she committed the act of criminal damage to property in the second degree. Assuming without deciding that the evidence authorized a finding that the victim’s property was intentionally damaged by appellant J. R. F., it did not authorize a finding that the damage exceeded $100. See generally Johnson v. State, 156 Ga. App. 411, 412 (2) (274 SE2d 778) (1980). Accordingly, the finding that appellant J. R. F. was delinquent on this ground must be reversed.

Judgments reversed.

Banke, P. J., and Benham, J., concur.


text:
    73953.
    TURNER v. COBB et al.
    (356 SE2d 749)
   Beasley, Judge.

Upon consideration of the undisputed facts established by the record in this appeal from a grant of summary judgment to the seller of certain unimproved real property, we are of the opinion that there was no justifiable reliance by the plaintiff purchaser nor fraudulent or “negligent” concealment by the defendant seller as a matter of law because of the purchaser’s complete failure to exercise ordinary care, prudence and diligence to discover potential flood problems after being put on notice of such potential problems from personal inspections of the property prior to closing. Therefore, under the controlling authority of Miller v. Clabby, 178 Ga. App. 821 (344 SE2d 751) (1986), the trial court was correct in its grant of summary judgment.

Decided April 23, 1987.

Donald A. Mangerie, James D. Coots, for appellant.

Lewis E. Hassett, Annette K. McBrayer, for appellees.

Judgment affirmed.

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


author: Sognier, Judge. Beasley, Judge,

text:
    73787.
    SOLTOW v. THE STATE.
    (356 SE2d 750)
   Sognier, Judge.

Appellant was convicted of theft by taking and he appeals.

1. Appellant’s motion to dismiss appellee’s brief is denied.

2. In his first four enumerations of error appellant contends the evidence was not sufficient to support the verdict, and that the trial court erred by denying his motion for a directed verdict of acquittal.

The evidence disclosed that about 4:30 a.m. Sergeant S. D. Lemon, a Clayton County police officer, observed a Chevrolet El Camino backed up to a building in a small shopping center. Lemon turned on the bright lights of his police car and could see only the head of a person inside the El Camino. Lemon then approached the vehicle on foot, shined his flashlight into the vehicle and saw two men crouched down on the seat and one man hiding on the floorboard. Appellant was one of the three men in the vehicle. Lemon noticed a strong odor of gasoline and saw a five-gallon gasoline container, a one-gallon gasoline container and two four-foot sections of garden hose in the bed of the vehicle. One of the containers had freshly spilled gasoline on it and a piece of the garden hose had fresh gasoline on it. After two backup officers arrived at the scene Lemon went around the building and saw a dump truck; a gasoline container similar to one of the containers in the El Camino was on the ground beside the dump truck with freshly spilled gasoline around the container. Corporal Aeree, one of the backup officers, also checked around the dump truck and saw a plastic type container sitting underneath the truck’s gas tank, with a hose running from the gas tank to the container. The container was overflowing with gasoline and approximately three to four gallons of gasoline had run out of the container onto the ground by the truck.

Appellant testified that he and his friends were on the way to work when their vehicle started sputtering and ran out of gas. They pulled into the shopping area and backed up to the building; Danny Collins got out of the vehicle, got the gasoline containers and left to get gasoline. Appellant’s other friend followed Collins and they returned in a few minutes and started putting gasoline into the vehicle. The two men left a second time and went around the building; when the police car pulled into the parking area the two men ran back to their vehicle and told appellant to crouch down. Appellant testified that he never left the vehicle and had no idea his friends were stealing gasoline; he assumed they had gone to a Hess service station about a mile away. All three men were arrested and charged with theft by taking.

Appellant argues that this is a circumstantial evidence case and the facts do not exclude every reasonable hypothesis save that of his guilt. We do not agree. Although appellant testified he thought his friends had gone to the Hess station a mile away to get gasoline, they returned in just a few minutes, put gas in the car and again went behind the building where their vehicle was parked, carrying another gasoline container with them. Further, appellant testified that he and his two friends were on their way to work; however, it was 4:30 a.m. and appellant testified that they usually left for work at 5:30 a.m., arriving about 7:00 a.m. to start work.

The weight of the evidence and credibility of witnesses are questions for the jury. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Whether a defendant’s explanation supplies a reasonable hypothesis other than that of the defendant’s guilt is a jury question. White v. State, 253 Ga. 106, 107 (1) (317 SE2d 196) (1984). If a jury is authorized to find that the evidence, although circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless it is insupportable as a matter of law. Bowen v. State, 173 Ga. App. 361 (1) (326 SE2d 525) (1985). The verdict here is not insupportable as a matter of law and the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

3. Appellant contends the trial court erred in its charge to the jury on parties to a crime because the charge was not adjusted to the evidence. The court charged: “If a person has knowledge of the intended crime and shares in the criminal intent of the principal actors he is an aider and abettor. Therefore, if the defendant was at the scene and did not disapprove or oppose the commission of the offense the trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense and that he lent his approval to it thereby aiding and abetting the commission of the crime.”

The charge given is a correct statement of the law. Whitley v. State, 176 Ga. App. 364, 367 (1 (c)) (336 SE2d 301) (1985). Although appellant argues that Whitley applies only to police officers who have a duty to prevent the commission of an offense of which they have knowledge, the statement of the law of aiders and abettors in Whitley was made in conjunction with a discussion of the law as it relates to private citizens. Hence, appellant’s argument is without merit and the charge given by the court was not erroneous.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 2 but believe that the circumstances underlying Division 1 warrant further comment, and that explanatory caution should be added to Division 3.

1. When the state’s brief was finally filed a month tardily, appellant moved to dismiss it, citing our Rule 14, which requires that appellee’s brief “shall be filed within” specified time. No sanction for failure of appellee to comply is set out in the rule, but failure on the part of appellant or cross-appellant is expressly subject to contempt. Under Rule 7, however, breach of a rule of this Court subjects the offender, which would include an appellee, not only to contempt but also to revocation of license to practice in this Court.

Rule 14 also provides that when the Court orders the filing, and the order is disobeyed by appellant or cross-appellant, the case “shall” be dismissed if civil and “may” be dismissed if criminal. Of course, an appellee’s disobedience of such an order would not cause dismissal of his opponent’s appeal, but it could under general law subject the appellee to contempt. OCGA § 15-1-4 (3); Crawford v. Manning, 12 Ga. App. 54 (3) (76 SE 771) (1912).

Thus, although the rule does not itself specify a sanction against a late-filing appellee, we could impose a Rule 7 sanction or at least simply choose not to consider his brief because of its untimeliness. Despite the fact that we have chosen to consider it in this case, it should be pointed out that such a cavalier effrontery of the Court’s rules may not always be met with such largesse. The rules, after all, are established to provide an orderly and reasonable appellate process which is fair to both sides of the litigation as well as to the Court, so as to achieve compliance with the Georgia Constitution of 1983, Art. VI, Sec. IX, Par. II.

When a party needs additional time, extension should be sought, as is fully provided for in OCGA § 5-6-39.

Decided April 24, 1987.

Joseph M. Todd, for appellant.

John C. Carbo III, Solicitor, Anne M. Landrum, Assistant Solicitor, for appellee.

2. I am of the opinion that a caveat is compelled in considering the use of the jury instruction focused on in Division 3. Taken out of context, and standing alone, it may very well be error because it gives the impression that no act, or omission to act when there is a duty to act, is called for before defendant can be found guilty as an aider and abettor.

Whitley v. State, 176 Ga. App. 364, 367 (1) (c)) (336 SE2d 301) (1985), from which the language was lifted and given as a charge, makes clear that “ ‘[e]ven approval of the act, not amounting to encouragement, will not suffice’ ” to constitute aiding and abetting, quoting from Brown v. State, 250 Ga. 862, 864 (302 SE2d 347) (1983). In Whitley, the conduct of defendant was viewed as the “omission to act” portion of OCGA § 16-2-1 when there was a statutory duty to take positive steps. Here, defendant’s behavior is, and was by the jury as instructed by the court, considered in terms of his affirmative actions, the other portion of OCGA § 16-2-1.

This decision, which involves the scope of what it means to “aid and abet,” must not be taken to expand its traditional boundaries. The court below carefully instructed the jury that proof of “a union of act and intention” by defendant was needed here, that the elements of the crime included taking and a specific intention, and the law with respect to parties to a crime. The court also charged the jury that it may consider defendant’s conduct as evidence of consciousness of guilt, but that mere presence is not sufficient to convict although “presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.”

Taking the whole charge in this case, with the challenged portion in its context, I agree that it was not error. Geter v. State, 219 Ga. 125, 134 (2) (132 SE2d 30) (1963); Scott v. State, 168 Ga. App. 631, 632 (309 SE2d 904) (1983).


text:
    74404.
    BRADLEY v. THE STATE.
    (356 SE2d 753)
   Deen, Presiding Judge.

The appellant, M. G. Bradley, was convicted of two counts of child molestation. On appeal, he contends that the trial court should have granted his motion for a change of venue; that the trial court erred in disallowing isolated, individual voir dire of the jurors; and that the trial court should have granted his motion for new trial.

Decided April 24, 1987.

John D. Mattox, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assis tant District Attorney, for appellee.

1. The basis for the appellant’s motion for change of venue was that local public reaction to a charge of child molestation was so strong that the local jurors could not fairly hear the evidence and observe a presumption of innocence. The question of whether to change venue addresses itself to the sound discretion of the trial court, which will not be disturbed on appeal absent an abuse of that discretion. Reaves v. State, 242 Ga. 542, 548 (250 SE2d 376) (1978). To accept the general basis for the appellant’s motion, of course, would strip the trial court of its discretion, which this court declines to do. There obviously was no abuse of discretion in refusing to change venue in this case. The brief newspaper article which reported the incident certainly did not fix a need for a change of venue, and, in any event, the appellant did not exhaust his peremptory strikes, which generally precludes reversal of a trial court’s denial of a motion to change venue. Coleman v. State, 237 Ga. 84, 92 (226 SE2d 911) (1976).

2. The trial court allowed defense counsel to ask individual questions of the jurors during voir dire, but disallowed examination of each juror outside the presence of the others. The right to individual examination of jurors does not encompass isolated examination. Stevens v. State, 247 Ga. 698 (278 SE2d 398) (1981). Defense counsel in this case was allowed to question each juror thoroughly, and we find no abuse of discretion in the denial of his request for isolated voir dire. Simmons v. State, 168 Ga. App. 1 (308 SE2d 27) (1983).

3. The modus operandi included buying Coca Colas, Pepsi Colas, candy and giving twenty dollar bills to the 10 and 11-year-old victims in order to coax and lure them into his trailer where he placed his hands on their privates. Compare Howell v. State, 172 Ga. App. 805, 808 (324 SE2d 754) (1984). The appellant concedes that the evidence authorized a rational trier of fact to find him guilty beyond a reasonable doubt of both counts of child molestation, but contends that the evidence also was sufficiently close to warrant the trial court’s exercise of discretion to grant a new trial. The trial court could have granted a new trial, but no abuse of discretion resulted from the refusal to do so in this case.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    73763.
    RIMES v. THE STATE.
    (356 SE2d 897)
    Decided April 9, 1987
    Rehearing Denied April 28, 1987

      George A. Zettler, for appellant.

      Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.
   Beasley, Judge.

The requirement of a timely filed notice of appeal is jurisdictional, even as to criminal cases, and, absent an extension, upon the failure to file such notice within 30 days after a judgment becomes final the appeal must be dismissed. OCGA §§ 5-6-38 (a) and 5-6-39. Melton v. State, 177 Ga. App. 134 (338 SE2d 701) (1985); Barthell v. State, 174 Ga. App. 459 (330 SE2d 180) (1985); Taylor v. State, 173 Ga. App. 745 (327 SE2d 860) (1985); Westerfield v. State, 169 Ga. App. 510 (313 SE2d 768) (1984); and the cases cited.

Appeal dismissed.

Deen, P. J., Banke, P. J., Carley and Pope, JJ., concur. Birdsong, C. J., McMurray, P. J., Sognier and Benham, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I am unable to agree with the majority’s holding that the appeal should be dismissed as it is my view that the case sub judice is controlled by the decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), and should be decided on the merits.

I am authorized to state that Chief Judge Birdsong, Judge Sognier and Judge Benham join in this dissent.


text:
    73610.
    In re J. S. C.
    (356 SE2d 754)
   Beasley, Judge.

This is an appeal by the natural father from an order terminating his parental rights in his minor daughter. The termination proceeding was instituted by Emerson who was the court-appointed guardian ad litem in a prior deprivation action regarding the same child. At the time of filing the termination petition, the deprivation action was pending as well as criminal charges against the father, appellant Cranford, for the shooting of the daughter. During adjournment of the termination proceedings, Cranford was convicted of the aggravated assault.

At the start of the termination hearing, the father’s counsel moved for appointment of a guardian ad litem other than Emerson for that proceeding. The basis was that, by virtue of Emerson’s filing of the petition for termination, he became a party to the action and thus under OCGA § 15-11-55 could not also be appointed as the child’s guardian ad litem for that case. The court then appointed its intern as guardian ad litem but shortly thereafter vacated the appointment and ordered that Emerson would be guardian ad litem as well as counsel for the child, in the termination action.

The termination proceedings were concluded and the juvenile court issued an order finding clear and convincing evidence that the child was deprived, that the deprivation would continue, that the child would suffer and did in fact suffer serious and permanent physical, mental, and emotional harm as a result of the deprivation, particularly in relation to the father’s conduct, and that the deprivation would not abate unless contact with the father was permanently discontinued and his parental rights terminated. Accordingly, the court terminated all of Cranford’s rights and obligations with respect to his daughter.

The errors claimed are: overruling, in effect, Cranford’s motion for appointment of a guardian ad litem contrary to OCGA § 15-11-55; finding petitioner had shown by clear and convincing evidence the elements required by OCGA § 15-11-51 (a) (2); failing to make explicit findings of fact regarding the elements of OCGA § 15-11-51 (a) (2); overruling Cranford’s objection to the admission of copies of certain documentary evidence contrary to OCGA § 24-5-2; and terminating his parental rights on insufficient evidence.

1. Did the juvenile court err in appointing the petitioner in the termination actions as the guardian ad litem in the same proceeding?

Under OCGA § 15-11-55, the court must “appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent, guardian, or custodian appearing on his behalf or if their interests conflict with his or in any other case in which the interests of the child require a guardian. A party to the proceeding or his employee or representative shall not be appointed.”

Appellant submits that by filing the termination petition as the child’s previously appointed guardian ad litem in the deprivation action, Emerson placed himself in a position directly opposite to a stated purpose in the juvenile court code as expressed in OCGA § 15-11-1 (2), namely the preference for retaining natural parentage, and that by seeking to terminate his (Cranford’s) parental rights as the child’s natural father, the petitioner has determined at the onset that the parent/child relationship should cease to exist and which position might or might not be in the child’s best interests.

Appellees maintain that Emerson had no personal interest in the outcome of the case so as to be a “party” to the termination proceeding within the meaning of OCGA § 15-11-55, as distinguished from the case when someone with a conflict of interest with the child, such as a parent, relative, or other custodian, is appointed guardian ad litem.

To begin with, the function of a guardian ad litem is to protect the interests of the child in all matters relating to the litigation. Speck v. Speck, 42 Ga. App. 517 (1) (156 SE 706) (1931); see also Ehrhart v. Brooks, 231 Ga. 272, 274 (1) (201 SE2d 464) (1973). Here, the best interests of the child may or may not have been served by termination of the father’s rights; that was the primary issue. Emerson, by initiating termination proceedings, had de facto taken the position of advocate for ending the father’s parental rights. The fact that Emerson may not have had a personal stake in the outcome, in the sense that he would be personally impacted by the ultimate parental rights decision as opposed to interest by virtue of his role as guardian ad litem in the deprivation action, does not render him less of a party to the suit. If the advocate for termination is permitted to be the advocate for the child, there is nothing for the court to decide, insofar as the third-party child is concerned, for the former has already decided that the best interests of the child will be served by termination. Between the two antagonistic parties is the child, who as we read OCGA § 15-11-55 must have a separate representative.

‘(A) reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.’ [Cits.]” In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987).

While there has been no substantive change in OCGA § 15-11-55 from the time of judgment to the present, “OCGA §§ 15-11-51 through 15-11-54 were repealed by Ga. L. 1986, p. 1017, effective July 1, 1986, which redesignated §§ 15-11-1 through 15-11-65 as Article 1 of Chapter 11 of Title 15, and added §§ 15-11-80 through 15-11-92 in a new Article 2. The termination of parental rights [is] now dealt with in Article 2, which has made several important changes in the previous law. For example, OCGA § 15-11-85 (a) now requires the appointment of an attorney to represent the child as his counsel in every termination proceeding.” In re L. L. B., supra. Such a provision reaffirms the legislative intent that the child’s interests be independently represented.

Decided April 28, 1987.

Robert A. Kunz, for appellant.

Frank C. Winn, District Attorney, John T. Garcia, Assistant District Attorney, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, David T. Emerson, Martha Mullins, Leah S. Brumbelow, for appellee.

The court’s appointment in this case of an interested party as the child’s guardian ad litem conflicts with this legislative aim of safeguarding a child’s interests by providing the child with representation separate from any other interest in the litigation. The advocate for the termination is not a proper guardian ad litem.

We cannot hold as a matter of law that such error was harmless, in light of the ultimate decision to terminate the father’s parental rights. Therefore, the judgment of the juvenile court to terminate appellant’s parental rights must be vacated with direction that on remand the court retry the issue of the termination with the appointment of a statutorily-appropriate guardian ad litem for the minor child, and in compliance with the present statutory scheme for such termination proceedings. See In re L. L. B., supra.

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

Judgment vacated and case remanded with direction.

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


author: McMurray, Presiding Judge.

text:
    73649.
    GOODMAN et al. v. KAHN et al.
    (356 SE2d 757)
   McMurray, Presiding Judge.

Plaintiffs, Robert and Sharon Goodman, individually and as next friend of their five-year-old daughter, Lyndsey Goodman, brought this action against Eric Kahn and Michael O’Rourke. The complaint was couched in four counts. In Counts 1, 3 and 4, plaintiffs alleged defendants were liable for damages incurred as a result of a dog biting incident involving Lyndsey Goodman and a dog named Sean. The incident was alleged to have occurred on the Goodmans’ premises. In Count 2, it was alleged that defendants were liable for the destruction of plaintiffs’ cat by another dog named Misty. Defendants answered the complaint and denied liability. Following discovery, defendant Eric Kahn moved for partial summary judgment upon Counts 1, 3 and 4. The motion was accompanied by the affidavits of O’Rourke and Kahn. In his affidavit, O’Rourke averred that he lives with Kahn in a house in Woodstock, Georgia; that he was the registered owner of Sean; that he was present when Sean bit Lyndsey Goodman; that Kahn did not own Sean and was not the keeper of the dog on the day it bit Lyndsey Goodman; that Kahn was not home on the day in question; and that at the time Sean bit Lyndsey, Kahn did not exercise personal supervision or control over Sean. In his affidavit, Kahn repeated O’Rourke’s averments: He averred that he did not own Sean; he was not the keeper of the dog on the day in question; and he in no way exercised supervision or control over Sean on the day it bit Lyndsey Goodman. The trial court granted Kahn’s motion for summary judgment upon Counts 1, 3 and 4. Plaintiffs appeal. Held:

At the pertinent time, OCGA § 51-2-7 read: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act shall be liable in damages to the person so injured.” (OCGA § 51-2-7 was amended effective July 1,1985; Lyndsey was bitten on August 10, 1984.) Conceding that Kahn was not the owner of the dog that bit Lyndsey Goodman, plaintiffs contend Kahn is liable nevertheless because he was a “keeper” of the dog. In this regard, plaintiffs argue that Kahn and O’Rourke, the dog’s owner, shared the same house and that at various times, Kahn fed the dog and let him out of the house. (In his deposition, Kahn admits that he kept Sean when O’Rourke went out of town (about six times a year). He averred, however, that he never took care of the dog when O’Rourke was home.) This argument misses the mark. It was the owner of the dog, O’Rourke, who was managing the dog at the critical time. The dog was solely under O’Rourke’s supervision when it bit Lyndsey. Kahn was not even home on the day in question. It cannot be said, therefore, that Kahn was the dog’s keeper at that time. See Malloy v. Cauley, 169 Ga. App. 623, 625 (314 SE2d 464); Hays v. Anchors, 71 Ga. App. 280 (1) (30 SE2d 646). Likewise, it cannot be said that Lyndsey was injured because Kahn carelessly managed the dog or allowed it to run free. OCGA § 51-2-7. Moreover, since the incident occurred on the Good-mans’ premises, it cannot be said that Kahn was liable as an owner or occupier of land (for his failure to exercise ordinary care in keeping his premises and approaches safe. See OCGA § 51-3-1. Compare Norman v. Norman, 103 Ga. App. 626, 631 (6) (120 SE2d 42). The trial court did not err in granting partial summary judgment to defendant Kahn. OCGA § 9-11-56.

In passing, we point out that defendant Kahn did not seek summary judgment upon Count 2 of the complaint even though Misty, the dog which destroyed plaintiffs’ cat,' was also owned by O’Rourke. With regard to that claim, the record shows that Kahn was at home when the incident happened and that O’Rourke was not.

Decided April 28, 1987.

Sonja L. Salo, for appellants.

B. Dean Grindle, Jr., Timothy K. Bonner, for appellees.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Birdsong, Chief Judge.

text:
    73849.
    DION v. THE STATE.
    (356 SE2d 758)
   Birdsong, Chief Judge.

Richard Anthony Dion was charged alternatively with two counts of driving while under the influence of alcohol, Count 1 simply alleging such operation, the second alleging Dion operated the vehicle with a .12 blood alcohol content, an amount of sufficient intensity to establish intoxication as a matter of law. He was convicted of Count 1 and acquitted of Count 2. He was sentenced to 12 months probated but with 15 days to serve and a $650 fine. Dion brings this appeal enumerating three asserted errors. Held:

The evidence shows that Dion apparently was driving too fast for the area in which he was driving. An officer stopped him to warn him to slow down. Nothing was observed by the officer to make him think that the driving was that of an intoxicated person. When the officer approached Dion (who had voluntarily vacated his auto), the officer noticed that Dion was “wobbly” on his feet, his eyes were glassy, and there was a strong odor of alcohol about his person. The officer then arrested Dion and advised Dion of his obligation to submit to a blood or breath test and his right to elect to have a personal test made. Dion consented to the test and that test resulted in a reading of .12 level. Much evidence was adduced relative to the physical mechanics of the breathalyzer machine. Substantial doubt was cast upon the accuracy of the use of the machine and the validity of the test in Dion’s situation. The State was allowed to introduce a prior arrest and conviction for DUI including a prior breath test as evidence of a course of conduct.

Dion enumerates as error the admission into evidence of the results of the test for his most recent arrest and the admission of the prior DUI and the test results involved in that arrest. We find no error in the admission of the testimony of the latest breath test nor in the evidence of the prior arrest and conviction. Dion’s attack upon the inherent invalidity of the breath analyzer and the results of the machine test was primarily addressed to the weight of the evidence and not its admissibility. Moreover, even if we were to determine it was error to allow the evidence before the court, the error would have been harmless. It is obvious the jury elected to agree with the position of Dion that the machine and its results were unacceptably inaccurate for the jury acquitted Dion of the offense predicated upon the results of the machine test. It is an old and sound rule that error, to be reversible, must be harmful. Dill v. State, 222 Ga. 793 (1) (152 SE2d 741). Dion’s acquittal of the offense based upon the questionable evidence rendered harmless any potential error. Henderson v. State, 134 Ga. App. 898 (1) (216 SE2d 696).

Decided April 28, 1987.

Steven T. Maples, for appellant.

Ralph T. Bowden, Solicitor, Susan L. Warshauer, Nancy H. Jackson, Assistant Solicitors, for appellee.

As to the admission of evidence of the prior arrest, Dion’s contention of harm has been decided adversely to his contention. The evidence clearly was admissible to show Dion’s course of conduct (Kilgore v. State, 176 Ga. App. 121 (1) (335 SE2d 465)) and state of mind. See Thompson v. Moore, 174 Ga. App. 331, 332, 334 (329 SE2d 914).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    73868.
    In re J. D. O.
    (357 SE2d 330)
    Decided April 28, 1987.
   Sognier, Judge.

The mother of J. D. O. appeals from a juvenile court order terminating her parental rights in the child.

The Supreme Court’s decision in In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987) requires that we vacate the judgment of the juvenile court and remand for further proceedings under OCGA § 15-11-80 et seq. We note that OCGA § 15-11-85 (a) requires the appointment of an attorney to represent the child as counsel in every termination proceeding.

Judgment vacated and case remanded with direction.

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

Nathan B. Deaton, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Ken W. Smith, for appellee.


text:
    74119.
    BRANCH v. BRANCH.
    (356 SE2d 759)
   Birdsong, Chief Judge.

The plaintiff-appellant Obie F. Branch filed this personal injury action against his mother Beatrice Branch and against Textron, Inc. for injuries caused by a chainsaw when plaintiff was helping his father cut down a tree on his mother’s property. Plaintiff was 19 years old at the time; his mother and father were divorced and he did not live with his mother. He had a high school diploma and had earned average grades. He was a member of the National Guard, where he had undergone basic regular Army training and airborne training, and learned to operate weaponry, including hand grenades. Prior to this accident, he had run this chainsaw himself for about five minutes, cutting through a telephone pole on the ground. He knew a chainsaw was a dangerous instrument and that “[y]ou could be killed with it. . . . [I]f somebody were to come after you with it and they cut you with it, it’d kill you.” However, he had “never thought about” causing injury in the way this injury occurred. He was assisting his father cut down a tree on his mother’s property. Appellant’s father was an experienced pulpwooder and logger. After they had cut and loaded the branches and debris, his father told his mother, the appellee, to keep everyone away from where he was cutting down the tree. Appellant did not hear this instruction. He went into the house with his mother and expressed his intention to leave and haul off the limbs and debris in his truck; the appellee said: “Well, Obie, why don’t you help your daddy with the tree. . . . Just finish helping him before you leave here.” Appellant then went out and moved his truck for fear the falling tree would hit it, and he went back to where the tree was being cut down. He approached his father from behind, and at that moment the chainsaw “kicked back” and struck him.

The trial court granted the appellee’s motion for summary judgment, and appellant appeals. Held:

Assuming arguendo that the appellant was an invitee to whom the appellee landowner owed the duty to exercise ordinary care, or a licensee of whose presence the appellee was aware (Barry v. Cantrell, 150 Ga. App. 439, 440-441 (258 SE2d 61)); and even assuming the appellee, as wife of a logger and as having been told to keep everyone away, possessed some degree of superior knowledge or comprehension of the specific danger of walking up on the blind side behind one operating a chainsaw, we yet find no causative connection between the appellee’s having asked appellant, “why don’t you help your daddy with the tree,” and the appellant’s having walked up immediately behind his father while he was operating the saw. It was not the appellant’s having stayed to help his daddy with the tree that caused the accident. The appellant posited in deposition that if his mother had “never asked [him] to stay and help [he] would have been gone before the tree hit the ground”; but this is only a remote circumstance explaining why he was in the general area, and is not causative. She did not ask him to go near the saw at that moment in contravention of the father’s admonition to keep everyone away. While appellant contends he was a child as far as his mother was concerned, he was not a child but had operated a chainsaw himself, had received a high school diploma and Army training in dangerous instrumentalities. He owed a duty of ordinary care for his own safety. His mother’s general request to “stay and help” did not relieve him of that duty, or overbear his will to exercise it. Appellant contends, however, that he did not know the chainsaw would “kick back,” and his mother did; he cites Sutton v. Sutton, 145 Ga. App. 22 (243 SE2d 310) as proving liability based upon such superior knowledge of the particular danger involved. However in that case, the defendant father made a specific request to the plaintiff to help recapture an escaped bull which the father, but not the plaintiff, knew had a propensity to charge when cornered. The specific request placed the plaintiff in a particularly dangerous position unknown to himself. In that case, we said: “However, a person is not expected to foresee and warn against dangers . . . not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured.” Id. p. 25. The plaintiff’s act in that case was not unexpected. Even assuming in this case the appellee-mother’s superior knowledge of a chainsaw’s propensity to “kick back,” the plaintiff was not relieved of the duty of care for his own safety. The appellee could not reasonably have foreseen that upon a general request to “stay and help,” the grown plaintiff would without any caution walk directly behind the chainsaw in operation. This was an unexpected act. Where it is palpably clear, plain and indisputable that the injury was caused by an unexpected act and not by any act of the defendant, or failure to act, the trial court can resolve the matter without intervention of the jury. Witt v. Atcheson, 166 Ga. App. 188 (303 SE2d 523); Bolden v. Barnes, 117 Ga. App. 862 (162 SE2d 307). The trial court did not err in granting summary judgment to the defendant.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided April 28, 1987.

John T. Croley, Jr., for appellant.

Richard J. Joseph, for appellee.


text:
    74130.
    DAUGHERTY v. THE STATE.
    (356 SE2d 902)
   McMurray, Presiding Judge.

Defendant appeals his conviction of driving under the influence of alcohol. Held:

1. The arresting officer testified that he had gotten out of his patrol car at a “Spur Station” to get something to eat or drink. As the officer returned to his patrol car he noticed defendant leaving a motorcycle parked next to his patrol car and that the defendant was unsteady on his feet. The officer remembered that the motorcycle had not been there when he arrived. The officer got in his patrol car and went across the street and parked as he wanted to see what the defendant was going to do about the motorcycle. Defendant “came out carrying a bag and he went over and strapped it on the back of the motorcycle” (the bag was later found to contain a twelve pack of beer). Defendant then cranked up the motorcycle and drove it over to the gas pumps and put gas in the motorcycle. After putting gas in the motorcycle defendant cranked the motorcycle again “and looked straight at the patrol car and at that time he didn’t control the motorcycle too well and it fell over.” Defendant got the motorcycle up and pushed it across the street to a house where no lights were on. The officer stopped defendant and asked him for his driver’s license. Defendant stated that he did not know whose motorcycle it was and didn’t know whose house it was. When the officer asked him why he had the motorcycle if he did not know whose motorcycle it was, defendant “said he was test driving it up the road and back down.” As defendant was very unsteady on his feet and had a strong odor of alcohol, the officer arrested defendant. Two blood alcohol reports were stipulated into evidence, the results of a crime laboratory test of a blood sample showing .12 percent of blood alcohol and the results of an intoximeter test showing .13 percent.

Defendant contends that there is insufficient evidence that he was in physical control of a moving vehicle. This contention is incorrect. First, there is evidence of defendant’s physical control of a moving vehicle in his statement to the arresting officer that he had been testing the motorcycle up and down the street. Secondly, the testimony of the arresting officer that he saw defendant drive the motorcycle from the parking area to the gasoline pumps is evidence of defendant’s physical control of a moving vehicle. See in this regard OCGA § 40-6-3 (2). The evidence presented at trial was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Keeler v. State, 181 Ga. App. 208, 209 (1) (351 SE2d 731).

Decided April 28, 1987.

Charles E. Day, for appellant.

John M. Ott, District Attorney, Eugene M. Benton, Assistant District Attorney, for appellee.

2. Defendant contends that the trial court erred in allowing testimony as to his statement in response to the arresting officer’s question that “he was test driving [the motorcycle] up the road and back down.” Defendant argues that he was questioned without any warning under the Miranda decision (see Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) and that the trial court erroneously concluded that the interrogation was non-custodial. Although the officer testified that he did not arrest defendant until after the statement at issue was made, the officer also testified on cross-examination that defendant was not free to go at the time the statement was made.

“ ‘A law enforcement officer coming upon the scene of suspected criminal activity will conduct a “general on-the-scene investigation” and may detain temporarily anyone at the scene who tries to leave before the preliminary investigation is completed. Such detentions do not trigger the requirements of Miranda v. Arizona, supra. See Shy v. State, 234 Ga. 816, 820 (1) (218 SE2d 599).’ Futch v. State, 145 Ga. App. 485, 488 (3) (243 SE2d 621). See also Arnold v. State, 145 Ga. App. 360 (2) (243 SE2d 743); Dasher v. State, 140 Ga. App. 517 (1) (231 SE2d 510); and, Doyle v. State, 144 Ga. App. 827 (2) (243 SE2d 92).” Humphrey v. State, 174 Ga. App. 165, 166 (2) (329 SE2d 306). The evidence authorized the conclusion that defendant had not yet been arrested at the time of his remarks but was being briefly detained while the officer determined the nature of the situation. See also State v. Overby, 249 Ga. 341, 342 (290 SE2d 464), and Hudgins v. State, 176 Ga. App. 719, 720 (1) (337 SE2d 378). This enumeration of error is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74137.
    HIERS-WRIGHT ASSOCIATES, INC. v. MANUFACTURERS HANOVER MORTGAGE CORPORATION et al.
    (356 SE2d 903)
   McMurray, Presiding Judge.

Plaintiff Hiers-Wright Associates, Inc., a general contractor, brought suit in the Superior Court of Fulton County against Manufacturers Hanover Mortgage Corporation, South Hills Associates, a Michigan limited partnership, Steven J. Hayman and Allen J. Hayman, individually, and as general partners of South Hills Associates, a Michigan limited partnership, seeking additional compensation for an apartment rehabilitation project. The jury returned a verdict in favor of plaintiff in the amount of $49,600, and judgment was entered accordingly. Thereupon, defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court awarded judgment notwithstanding the verdict to defendants. In addition, the trial court conditionally granted defendants’ motion for a new trial (“if the Judgment for Defendants is vacated or reversed”). See OCGA § 9-11-50 (c). Plaintiff brings this appeal. Held:

1. Plaintiff contends the trial court erred in considering defendants’ motion for judgment notwithstanding the verdict because it was not “sufficiently definite to inform” plaintiff of defendants’ contentions. See OCGA § 5-6-49 (b). This contention is without merit.

It is axiomatic that harmful error is to be found only where error and prejudice converge. In the absence of a showing of harm, a reversal of the trial court’s judgment is not warranted. Shackelford v. Whatley, 172 Ga. App. 127, 131 (8) (322 SE2d 331). Although the motion itself did not spell out why defendants were entitled to judgment, it was accompanied by a brief which set forth defendants’ contentions in this regard. Moreover, the motion for judgment notwithstanding the verdict was made in accordance with the motion for directed verdict wherein defendants specifically informed the court and plaintiff of their contentions. See generally Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 469 (1) (287 SE2d 257). Thus, it cannot be said that plaintiff was prejudiced by the failure of the motion itself to inform plaintiff of defendants’ contentions. The alleged error does not warrant a reversal. Shackelford v. Whatley, 172 Ga. App. 127, supra.

2. “As with a directed verdict, a motion for judgment notwithstanding the verdict is proper only where ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ Code Ann. § 81A-150 (a) [OCGA § 9-11-50 (a)]. State Farm Mut. Auto Ins. Co. v. Snyder, 125 Ga. App. 352 (187 SE2d 878) (1972); Canal Ins. Co. v. Tate, 111 Ga. App. 377, 386 (141 SE2d 851) (1965).” United States Fidelity &c. Co. v. Blankenship Plumbing Co., 153 Ga. App. 335, 336 (2) (265 SE2d 66). In applying this standard, we must view the evidence in a light most favorable to the party securing the jury’s verdict. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (256 SE2d 916). Viewing the evidence in a light most favorable to plaintiff, we find the following:

Plaintiff entered into a construction contract with Wellington South Company, a Georgia limited partnership, for the rehabilitation of an apartment complex. Defendant Manufacturers Hanover Mortgage Corporation provided the financing for the project. On or about August 5, 1980, after plaintiff began work, Wellington South Company sought protection under Chapter 11 of the Bankruptcy Code (Title 11 USCA § 1101 et seq.). Complying with a request from Manufacturers Hanover Mortgage Corporation, plaintiff secured the premises and ceased further work on the project.

In the winter of 1980-1981, while the bankruptcy proceeding was pending, plaintiff was asked to inspect the buildings because it was anticipated that work would begin again. Plaintiff observed that two buildings (F and H) were damaged as a result of freezing weather conditions. Shortly thereafter, plaintiff entered into negotiations with Wellington South Company and Manufacturers Hanover Mortgage Corporation for the repair of the freeze damage found in buildings F and H. On March 5, 1981, plaintiff entered into another contract with Wellington South Company (with the approval of the bankruptcy court) to repair the water damage in the two buildings. That contract required plaintiff to repair pipes, replace sheetrock and fix other items affected by the freeze. Plaintiff was to be paid on a cost plus basis for the additional work. However, a $24,000 cap was placed upon the “freeze damage” contract.

Thereafter, plaintiff began to repair the damage found in buildings F and H. As work progressed, plaintiff discovered that the winter weather wreaked massive water damage upon the two buildings. The damage was far greater than plaintiff anticipated.

Plaintiff informed Manufacturers Hanover Mortgage Corporation that it was experiencing large cost overruns with regard to buildings F and H. According to plaintiff’s representative, Manufacturers Hanover Mortgage Corporation orally responded by agreeing to reimburse plaintiff for its plumbing cost overruns.

Plaintiff completed its work on the project in December 1981. In the meantime, Manufacturers Hanover Mortgage Corporation took over the apartment complex after successfully bidding at a foreclosure sale of the property. Plaintiff received payment for its work under the rehabilitation contract; it also received $24,000 for the “freeze damage” contract. Plaintiff was not paid, however, for the plumbing cost overruns it incurred with regard to buildings F and H.

Based on the foregoing facts, we conclude that the trial court properly granted defendants’ motion for judgment notwithstanding the verdict. “The question on which the decision of the present case turns is whether the evidence adduced upon the trial showed the parol contract sued upon to be an enforceable agreement. Assent of the parties to the terms of the contract and a consideration for the performance of the same are essential requisites to its validity. Where either of these elements is lacking the contract is not binding or enforceable. Code § 20-107 [OCGA § 13-3-1].

“The plaintiff, under the terms of the parol agreement, assumed no obligation or duty that [it] was not bound to perform under the written contract [it] had previously entered into with [Wellington South Company]. . . .

“The Supreme Court held in Johnson v. Hinson, 188 Ga. 639, 644 (4 SE2d 561): ‘An Agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another.’ A similar pronouncement for the principle is found in Willingham Sash &c. Co. v. Drew, 117 Ga. 850 (1, 2) (45 SE 237): ‘Where one undertakes to perform for another service or labor for a given sum any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity ... A employed B to build a house for the sum of $1,400. A paid the $1,400 before the completion of the house; and it becoming apparent that B would be unable to comply with the contract without suffering loss, B was told by A to estimate what sum would be necessary to complete the building, and upon being informed that $350 would be required, B was told to complete the building and this amount would be paid in addition. Under this latter arrangement B was to do only what was contemplated by the original contract. After the $1,400 had been paid and before the payment of the $350, A was served with a summons of garnishment in a suit against B, and judgment was rendered in favor of the garnishee. Held: (1) That the agreement to pay the additional sum of $350 was a nudum pactum. (2) That at the time of the service of the summons of garnishment the relation of debtor and creditor did not exist between A and B.’ ” Robert Chuckrow Constr. Co. v. Gough, 117 Ga. App. 140, 144 (2) (159 SE2d 469).

Since plaintiff was obligated to repair the freeze damage under the contract it entered into with Wellington South Company for $24,000, the parol promise of Manufacturers Hanover Mortgage Corporation to pay an amount in excess of that sum was unenforceable. Plaintiff was already bound to repair the freeze damage under the original contract. That undertaking was not a sufficient consideration for the promise of Manufacturers Hanover Mortgage Corporation. Robert Chuckrow Constr. Co. v. Gough, 117 Ga. App. 140, supra; Johnson v. Hinson, 188 Ga. 639, supra.

Decided April 28, 1987.

James F. Baker, Paul H. Kehir, S. Alan Schlact, for appellant.

Douglas D. Salyers, for appellees.

Plaintiff contends the cost overruns were incurred for extra work and that, therefore, the oral promise of Manufacturers Hanover Mortgage Corporation was supported by new consideration. In this regard, it asserts that the extent of the damage could not be ascertained until work was begun. Thus, it argues, the additional work was not contemplated by the contract. We disagree. The “freeze damage” contract called for plaintiff to make “plumbing repairs and repairs to sheet-rock and other repairs due to water damage caused by freezing of water pipes in Buildings ‘F’ and ‘H’ . . .” The evidence shows that plaintiff submitted a bid to do that work with its eyes wide open. Plaintiff was given every opportunity to inspect the damaged apartments fully. It was only after it inspected the apartment buildings with its plumbing subcontractor that plaintiff submitted a bid to do the work called for in the contract. Under these circumstances, it cannot be said that plaintiff was entitled to additional compensation for the cost overruns. See Talerica v. Grove Park Plumbing Svc., 103 Ga. App. 591 (120 SE2d 36); State Hwy. Dept. v. MacDougald Constr. Co., 102 Ga. App. 254 (115 SE2d 863).

Judgment affirmed.

Sognier and Beasley, JJ., concur.