text:
    75728.
    MURRAY BAKERY PRODUCTS, INC. v. BOARD OF TAX ASSESSORS OF RICHMOND COUNTY.
    (367 SE2d 852)
   McMurray, Presiding Judge.

In this case of first impression, we are called upon to decide whether certain inventory of a taxpayer is exempt from taxation pursuant to the freeport exemption. OCGA § 48-5-48.2. The superior court determined that the inventory was not exempt.

The taxpayer, Murray Bakery Products, Inc., manufactures cookies in Richmond County. In 1986 the taxpayer filed an inventory tax return seeking an exemption with regard to inventory which was designated by the taxpayer as finished goods, raw materials, packaging materials and general stores. An exemption was allowed only for the inventory which the taxpayer designated as finished goods and raw materials. The taxpayer claims that the other inventory items (which are the subject of this case) are also exempt from taxation. These items are used to package and merchandise the taxpayer’s cookies. They consist of plastic trays, cellophane wrappers, caddies, cartons, cases, tapes, labels and liners. Held:

It is axiomatic that laws granting an exemption from taxation must be construed strictly in favor of the taxing authority. Rayle Elec. Membership Corp. v. Cook, 195 Ga. 734, 735 (2) (25 SE2d 574); Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751, 752 (1) (236 SE2d 872). All doubts must be resolved against the taxpayer. Blackmon v. Screven County Indus. Dev. Auth., 131 Ga. App. 265, 267 (205 SE2d 497). Thus, an exemption will not be allowed unless it was clearly and distinctly intended by the legislature. Chilivis v. Marble Prods. Co., 135 Ga. App. 187 (1) (217 SE2d 441).

Under OCGA § 48-5-48.2 certain inventory may be exempt from tangible personal property taxation. Subsection (1) permits the following exemption: “Inventory of goods in the process of manufacture or production which shall include all partly finished goods and raw materials held for direct use or consumption in the ordinary course of the taxpayer’s manufacturing or production business ...” The taxpayer contends that its packaging materials are “raw materials” which are exempt under the statute. We cannot accept this contention. OCGA § 48-5-48.2 defines “raw materials” as “any material whether crude or processed that can be converted by manufacture, processing, or combination into a new and useful product. . .” In our view, the packaging materials are not “raw materials.” They are not converted by the taxpayer into a “new and useful product.” They merely aid the taxpayer in its marketing and distribution efforts. After all, the taxpayer produces cookies. Its raw materials are, therefore, flour, sugar and like items which are converted into cookies. Simply put, the packaging materials in question are not so converted.

The taxpayer asserts that it manufactures packaged cookies, not just cookies, and that, therefore, the packaging materials are a part of the taxpayer’s product. Assuming, arguendo, the taxpayer’s product is packaged cookies, we nevertheless fail to see how the packaging materials fit within the freeport exemption. In part, OCGA § 48-5-48.2 (1) provides: “The exemption provided for herein shall apply only to tangible personal property which is substantially modified, altered or changed in the ordinary course of the taxpayer’s manufacturing, processing or production operations ...” The packaging materials used by the taxpayer are not substantially changed in the production process. These packaging materials remain virtually unchanged after the taxpayer’s cookies are packaged.

The superior court did not err in holding that the inventory in question was not exempt from taxation pursuant to the freeport exemption.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

To this case of statutory construction we must apply the rules governing such a task. Three of them, which deal with the construction of tax exemptions, are applied by the court. Several critical and even more fundamental ones, however, are left out. When they, too, are considered, the result is otherwise.

OCGA § 1-3-1 provides:

“(a) In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. . . .

“(b) In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the significance attached to them by experts in such trade or with reference to such subject matter.”

The state constitution permits local governing authorities, subject to approval of the electors, to exempt from ad valorem taxation “inventories of goods in the process of manufacture or production, and inventories of finished goods.” Ga. Const. 1983, Art. VII, Sec. II, Par. Ill (a) (1). The constitution further provides, in section (3) of that subparagraph: “The implementation, administration, and revocation of the exemptions authorized in this subparagraph (a) shall be provided for by law. Until otherwise provided by law, the grant of the exemption shall be subject to the same conditions, limitations, definitions, and procedures provided for the grant of such exemption in the Constitution of 1976 on June 30, 1983.”

The General Assembly has adopted “conditions, limitations, and definitions” as well as “procedures,” in OCGA § 48-5-48.2. It is the “conditions, limitations, and definitions,” or perhaps more precisely the “definitions” which are at issue here. Subsection (2) of the statute provides for the exemption of “inventory of finished goods” subject to certain conditions, such as that they be manufactured or produced in Georgia in the ordinary course of the taxpayer’s manufacturing or production business, and subject to certain limitations, such as that they be exempt only when held by the original manufacturer or producer and only for a period of twelve months.

Subsection (1) reaches back behind and beyond the inventory of finished goods and exempts also the “inventory of goods in the process of manufacture or production.” It expressly provides that this includes “all partly finished goods and raw materials held for direct use or consumption in the ordinary course” of the business in Georgia. There is a limitation, “to tangible personal property which is substantially modified, altered or changed in the ordinary course of the taxpayer’s manufacturing, processing, or production operations in this State.” It is noteworthy that throughout, the exemption is not limited to what is manufactured but extends also to what is produced.

Murray’s finished goods are boxes of cookies. That is what the consumer buys. He does not simply buy cookies. The evidence is uncontravened that the consumer cannot go to the retail store and buy Murray’s cookies from a container or tray and carry them away in a sack provided by the shopkeeper. The “production operations” of this plant embrace packaging as part" of the finished product itself. Packaged cookies as such are what is sold, and in today’s market, packaging often constitutes a large part of the marketability of the product.

The statute is broad when it defines “finished goods”' as “goods, wares, and merchandise of every character and kind.” It does list some things which are not included, but the boxed cookies here subject do not fall within any of the categories in the list.

If Murray’s “finished goods” are boxed cookies, and its “inventory of finished goods” is the inventory of boxed cookies, which the evidence shows without question, then the inventory of what is “in the process of manufacture or production” must include that physical property which finds its way into the finished product. This is the portion of the statute which covers the plastic trays, cellophane, tape, labels, liners, and so forth, as Murray claims. As a matter of fact, the Board of Tax Equalization had itself exempted plastic trays and cellophane wrappers the year before.

Decided March 15, 1988

Rehearing denied March 28, 1988

Paul K. Plunkett, for appellant.

Robert C. Daniel, Jr., for appellee.

Some of the items may be classified as “partly finished goods” in the process of production, and some fall more readily into the classification of “raw materials” as this term is defined in the statute, because they are processed materials which can be converted by combination into a new and useful product. For example, plastic trays by themselves would not interest the consumer who desires fresh cookies in a form which will protect them from breaking and soiling until used. It is the plastic tray and the cookies and the other trappings which are combined into the finished goods which the consumer buys.

This exemption, which the statute itself expressly states is “commonly known as the freeport exemption,” has as its purpose the promotion and encouragement of the locating of new businesses within counties whose electorates desire such. With this in mind, and applying the plain language principle of statutory construction, it must be concluded that the General Assembly intended to exempt the packaging ingredients of the business’ product when they constitute an integral and necessary part of the finished goods.

I am authorized to state that Presiding Judge Deen and Judge Benham join in this dissent.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    75873.
    McGARVEY v. THE STATE.
    (368 SE2d 127)
   Birdsong, Chief Judge.

This is an appeal from the denial of a plea in bar of prosecution based on former jeopardy grounds. The appellant Cormac M. McGarvey contends he cannot be tried after the trial court’s declaration of a mistrial for improper remarks made by defense counsel in opening statement, inasmuch as the trial court had allowed defense counsel to make such remarks. Further, he contends he is entitled to have the indictment dismissed because of prosecutorial misconduct in refusing, until after the mistrial, to supply to the defense on request one of defendant’s statements. Held:

1. The charge against appellant is homicide by vehicle in the second degree, arising from an event where a motorcycle policeman collided with appellant’s vehicle. The mistrial controversy arose when defense counsel advised the court he intended to argue the criminal prosecution of this misdemeanor case not involving alcohol or other egregious criminal behavior, while serious murder cases lay in backlog in superior court, was motivated by the prosecutor’s political aspirations, and that he wished to call the prosecutor as witness to such a statement made to defense counsel. The parties argued the matter to the trial court, and finally the trial court said: “All right, we’ll try them on the facts as they stand.” Appellant’s counsel took this statement to mean he would be allowed to pursue his argument, and in opening statement said: “The evidence is going to show that under these highly unusual circumstances of being here in a Grand Jury indictment for a misdemeanor that this man here, the Assistant District Attorney has ambitions and wants to do that [which] would . . . form a cohesive unit of a political base to try to put himself in step with the police forces and the law enforcement agencies to try to obtain the job of District Attorney of this Circuit.”

Evidently the trial court had not meant to say appellant could make the argument re the prosecutor’s political ambitions, for when the prosecution objected to any statement irrelevant to the guilt or innocence, the trial court declared a mistrial. Appellant urges that because he did not consent to the mistrial, he is being deprived of his right to one trial; and, further, that the trial court was in error in granting mistrial after allowing appellant to make the particular remarks.

The trial court did not err in denying appellant’s plea in bar. In State v. Abdi, 162 Ga. App. 20 (288 SE2d 772), affirmed, Abdi v. State, 249 Ga. 827 (294 SE2d 506), we pointed out that mistrial does not bar retrial if the termination of the trial was not improper (see OCGA § 16-1-8 (b) (2)), and it is not improper if the defendant consents to the mistrial; but this does not mean termination of the trial is improper unless the defendant consents. To the contrary, section (e) (2) (B) of OCGA § 16-1-8 declares that the termination of a trial is hot improper if “[p] rejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant.” The State has just as much right to proceed to trial “without injustice” as does the defendant. Abdi, supra, 162 Ga. App. at 22. The trial court did not err in its discretion in terminating the trial upon determining a fair trial could not proceed on the homicide charge when the issue was made the prosecutor’s political ambitions. Even if the trial court had erred in its decision to terminate the trial, and even if the defense cannot be blamed for misunderstanding the trial court’s ruling on whether it would permit argument and admit evidence concerning the prosecutor’s political ambitions, nevertheless, the defense injected the matter that resulted in the mistrial and cannot prevent retrial by withholding consent to the mistrial. Id. p. 22. See Nixon v. State, 121 Ga. 144 (3) (48 SE 966). In any case, under § 16-1-8 (e) (2) (B), it hardly matters who precipitated the injustice that made it “impossible to proceed,” in the trial court’s discretion. The defendant does not have the right to force the State either to endure a prejudiced trial or forego prosecution entirely.

Decided March 9, 1988

Rehearing denied March 28, 1988

J. S. Hutto, Karen M. Krider, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

2. The trial court did not err in refusing to dismiss the indictment for prosecutorial misconduct. Assuming the failure of the State to turn over evidence of an additional one-sentence statement of appellant to police was prosecutorial misconduct violating appellant’s statutory discovery or due process rights, dismissal of an indictment is not the appropriate remedy where there is any other. Wilcox v. State, 250 Ga. 745 (4) (301 SE2d 251); see United States v. Morrison, 449 U. S. 361 (101 SC 665, 66 LE2d 564). On no account would the misconduct demand the extreme remedy of dismissal of the charge unless it caused demonstrable prejudice to the defendants’ recognized constitutional or statutory rights (id. p. 365) or was so outrageous that it is “fundamentally unfair and ‘shocking to the universal sense of justice mandated’ ” by the Constitution or statute as to deprive him of a fair trial as a matter of law. See Wilcox, supra; United States v. Ofshe, 817 F2d 1508, 1516 (11th Cir. 1987; cert. pending). Absent demonstrable prejudice, a finding that such misconduct was so outrageous as to demand dismissal of the indictment, would occur only in the rarest of cases.

Since the statement in this case, however tardy, was delivered to the defense before any retrial of the case, obviously there has been no actual prejudice to appellant. Even if the original trial had continued and the State had sought to introduce this statement against defendant, the statutory remedy of exclusion was available. OCGA § 17-7-210 (c); see Tanner v. State, 160 Ga. App. 266 (287 SE2d 268). The remedy of dismissing the charges in this case was unjustified, the misconduct, if it was so, being rectified before retrial.

Judgment affirmed.

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


author: Carley, Judge. Banke, Presiding Judge,

text:
    75082.
    GRIFFIN v. GEORGIA POWER COMPANY et al.
    (367 SE2d 832)
   Carley, Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellee-defendant Roy L. Minter, acting on behalf of his employer, appellee-defendant Georgia Power Company, swore out a warrant for the arrest of appellant-plaintiff on a charge of theft of electrical services. Appellant was thereafter prosecuted on this criminal charge. At the trial of the criminal action, appellant moved for a directed verdict of acquittal at the close of the State’s evidence. The undisputed evidence of record is that this motion was denied, the only contention to the contrary being based upon material which is dehors the record. Likewise, the undisputed evidence of record is that appellant’s renewed motion for a directed verdict of acquittal, which he made at the close of all of the evidence, was granted. The criminal prosecution having thus been terminated in his favor, appellant subsequently instituted this malicious prosecution action against appellees. Appellees moved for summary judgment and the trial court granted their motion. Appellant appeals from the order granting summary judgment in favor of appellees.

1. “The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty [of the criminal offense], but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. . . . This burden is not carried in any reasonable sense unless the plaintiff [can show] that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought. [Cit.] ” Fisher v. Ky. Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985). As noted, the undisputed evidence of record is that, in the underlying prosecution for theft of electrical services, the trial court denied appellant’s motion for a directed verdict of acquittal made at the close of the State’s case. In Monroe v. Sigler, 256 Ga. 759, 760-761 (4, 6) (353 SE2d 23) (1987) our Supreme Court held: “Having heard all the evidence that the [State] had to present, the trial court was called upon to examine the sufficiency of the evidence to sustain a conviction. In denying the motion, the court found the evidence sufficient to authorize a jury to determine guilt beyond a reasonable doubt. That quantum of evidence is substantially greater than mere probable cause. Such being the case, does the trial court’s denial of a motion for a directed verdict of acquittal constitute a binding determination of the existence of probable cause? We answer in the affirmative. . . . When the trial judge, having heard all of the [S]tate’s evidence, considers a motion on behalf of an accused (the accused being present and given an opportunity to be heard in support of the motion); and when the trial judge rules that the evidence is sufficient as a matter of law to support a conviction (that is, is sufficient to enable a rational trier of fact to find each and every element of the guilt of the accused beyond a reasonable doubt), we can see no reason why such a holding — unreversed and in the absence of fraud or corruption — should not suffice as to the existence of probable cause. [Cits.]” (Emphasis in original.)

Accordingly, if Monroe v. Sigler, supra, is controlling authority, the probable cause for appellant’s criminal prosecution has been established by the denial of his motion for a directed verdict of acquittal which he made at the close of the State’s evidence. Monroe v. Sigler, supra, certainly is factually distinguishable. In that case, only one motion for a directed verdict of acquittal was made and, as the result of its denial, it was the jury that made the ultimate determination of whether the evidence authorized a criminal conviction. Here, two motions for a directed verdict of acquittal were made and, as the result of the grant of the second motion, it was the trial court that made the ultimate determination of whether the evidence was sufficient to authorize appellant’s conviction. Accordingly, the issue to be resolved is whether this factual distinction is sufficient to remove the present case from the ambit of the holding of Monroe v. Sigler, supra.

Notwithstanding the noted factual differences, it is undisputed that here, as in Monroe v. Sigler, supra, a motion for a directed verdict of acquittal was made and denied at the close of the State’s evidence. A trial court cannot choose to deny a meritorious motion for a directed verdict of acquittal made at the close of the State’s case. “[I]t constitutes reversible error for the trial court to refuse to direct a verdict of acquittal where there is absolutely no conflict in the evidence and the verdict of acquittal is demanded as a matter of law. [Cit.]” Bethay v. State, 235 Ga. 371, 373-374 (1) (219 SE2d 743) (1975). See also Bethay v. State, supra and Walls v. State, 161 Ga. App. 625, 626 (1) (288 SE2d 769) (1982), holding that an appellate court will consider all of the evidence, including that introduced by the defendant, in determining whether the denial of a motion for a directed verdict of acquittal at the close of the State’s evidence was error.

Accordingly, the unreversed denial of appellant’s motion for a directed verdict of acquittal at the close of the State’s evidence establishes that the facts, as they then appeared, were “sufficient to authorize a jury to determine guilt beyond a reasonable doubt. That quantum of evidence is substantially greater than mere probable cause. . . . [Thus,] the trial court’s denial of a motion for a directed verdict of acquittal constitute [s] a binding determination of the existence of probable cause. . . .” Monroe v. Sigler, supra at 760-761 (4). That the criminal defendant may subsequently have been acquitted — whether by grant of a motion for a directed verdict of acquittal or by the verdict of the jury — establishes only that at the close of all of the evidence, the facts, as they then appeared, were not sufficient to authorize a jury to determine guilt beyond a reasonable doubt. Since any subsequent determination as to a defendant’s guilt made at the close of all of the evidence is not inconsistent with any previous determination made at the close of the State’s evidence, it would necessarily follow that any finding which was implicit in the trial court’s denial of appellant’s initial motion for a directed verdict of acquittal would not be obviated by the trial court’s grant of appellant’s second motion. Implicit in the denial of appellant’s initial motion for a directed verdict of acquittal was the trial court’s determination of the existence of probable cause for the prosecution. Monroe v. Sigler, supra. This determination is unreversed and is binding. The grant of appellant’s subsequent motion for a directed verdict of acquittal establishes only that the criminal prosecution terminated in his favor. “[T]he existence of probable cause has been established, during the trial of the criminal case, in such manner as to preclude [appellant’s] action for malicious prosecution.” Monroe v. Sigler, supra at 761 (7). It follows that the trial court did not err in granting appellees’ motion for summary judgment.

2. Appellant’s remaining contentions are moot and need not be addressed.

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

Although the Supreme Court’s decision in Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), contains language which, stripped of its context, supports the majority’s holding in this case, I believe the majority’s decision extends the holding in Monroe v. Sigler well beyond its intended parameters.

As I read Monroe v. Sigler, it precludes a plaintiff from pursuing an action for malicious prosecution where, during the trial of the criminal case, the trial judge made a “binding” determination on motion for directed verdict that there was sufficient evidence of guilt to warrant sending the case to the jury, i.e., to authorize a rational trier of fact to find the plaintiff guilty of the offense charged beyond a reasonable doubt. As interpreted by the majority, however, Monroe v. Sigler goes much further. It creates an absolute bar to an action for malicious prosecution not merely in those cases where the criminal trial judge allowed the case to go to the jury over a motion for directed verdict, but also in those cases where, after initially refusing to direct a verdict of acquittal, the judge ultimately granted the motion.

In Monroe v. Sigler, only one motion for directed verdict was made, and its denial thus constituted the court’s final ruling with respect to the sufficiency of the evidence. It was under those circumstances that the Supreme Court construed the denial of the motion to be a “binding determination of the existence of probable cause.” Id. at 761. In the present case, the judge’s initial denial of the plaintiff’s motion for directed verdict at the close of the state’s evidence was obviously not “binding” because it was superseded by the judge’s later decision to grant the motion upon its renewal at the close of all the evidence in the criminal case.

The majority’s holding in the present case not only extends the holding in Monroe v. Sigler well beyond its actual facts, it ignores the practical realities that often attend and influence the disposition of initial motions for directed verdict in criminal cases. For example, even where the state has failed to make out a prima facie showing of guilt, a trial judge may nevertheless legitimately choose to deny an initial motion for directed verdict made at the close of the state’s evidence in order to give the defendant an opportunity to supply the missing element of proof during the presentation of his defense. See Bethay v. State, 235 Ga. 371 (1) (219 SE2d 743) (1975); Hearn v. State, 145 Ga. App. 469 (1) (243 SE2d 728) (1978). “[T]he fact that the evidence at the close of the state’s case may have been insufficient to convict is not controlling so long as all the evidence justifies the conviction under the appropriate standard.” Walls v. State, 161 Ga. App. 625, 627 (288 SE2d 769) (1982), citing Hearn v. State, supra.

Conversely, the state’s evidence, standing alone, may be sufficient to establish a prima facie case yet be insufficient to support a conviction in the context of subsequent evidence establishing an uncontroverted defense or otherwise negating the basis for a finding that the defendant acted with criminal intent. See, e.g., Butler v. State, 252 Ga. 135 (311 SE2d 473) (1984) (murder conviction reversed on basis of uncontroverted evidence establishing insanity defense); Hughes v. State, 152 Ga. App. 80 (262 SE2d 245) (1979) (drug conviction reversed on basis of uncontradicted entrapment defense); Wright v. State, 121 Ga. App. 21 (172 SE2d 457) (1970) (larceny conviction reversed on basis of defendant’s testimony satisfactorily explaining his possession of stolen property in manner consistent with state’s evidence); Gilbert v. State, 94 Ga. App. 217 (94 SE2d 109) (1956) (homicide conviction reversed based on defense testimony establishing justification).

Clearly, the state’s ability to produce evidence which, considered in isolation, is sufficient to establish a prima facie case is not always dispositive of the issue of whether the evidence as a whole was sufficient to support a conviction. Similarly, the state’s ability to establish a prima facie case should not always be treated as dispositive of the issue of whether the criminal prosecution was supported by probable cause. Such a determination should be made on the basis of all the evidence, not just the evidence favorable to the prosecution.

Decided March 11, 1988

Rehearing denied March 29, 1988

Frank J. Beltran, Patrick M. Anagnostakis, Manley F. Brown, Audrey P. Biloon, for appellant.

H. Jerome Strickland, Craig N. Cowart, for appellees.

This is not a novel concept. We have previously held that “[w]hile a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.” Auld v. Colonial Stores, 76 Ga. App. 329 (3) (c) (45 SE2d 827) (1947). Similarly, we have held that liability for malicious prosecution may attach although the initiation of the criminal prosecution was justified by the circumstances then known to the prosecutor, where, upon later being apprised of facts establishing the accused’s innocence, the prosecutor failed to request that the prosecution be terminated. See Voliton v. Piggly Wiggly, 161 Ga. App. 813, 815 (288 SE2d 924) (1982).

Because I do not believe that the Supreme Court’s decision in Monroe v. Sigler, supra, operates to defeat the appellant’s claim in the present case, I respectfully dissent from the majority opinion.

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


author: Benham, Judge.

text:
    75170.
    STEELE v. GOLD KIST, INC.
    (368 SE2d 196)
   Benham, Judge.

Appellant Steele is the owner of two poultry houses designed and constructed by appellee Gold Kist, Inc., and roofed with a material called Onduline. Appellant chose to have Onduline used on his poultry houses after being informed by employees of appellee that Onduline was guaranteed for 25 years. Construction of the poultry houses was completed in January 1979. By March 1980, the green roof was discolored and, by early 1983, the roof was leaking. Appellant replaced the roofs in 1984 and then filed this lawsuit against appellee, the retailer/installer of the Onduline roofing material, and the manufacturer. A jury trial commenced in March 1986 but ended in a mistrial “based upon the absence of a pretrial order and the consequent disputes. . . .” Thereafter, appellee moved for and was granted summary judgment as to appellant’s claims against appellee. This appeal followed.

1. This court’s dismissal of this appeal as untimely is vacated in light of the supplementary record filed at appellant’s request. The supplement contains the trial court’s order of November 19, 1986, which added the final judgment language of OCGA § 9-11-54 (b) to the order granting summary judgment to appellee on November 10, 1986. Thus, appellant’s notice of appeal, filed on December 18, 1986, was timely.

2. In his complaint, appellant contended that appellee had misrepresented the quality of the roofing material it sold to appellant, and had negligently installed the material on appellant’s poultry houses. In an amendment, appellant sought damages for appellee’s alleged stubborn litigiousness.

Through the contract entered into by appellant and appellee, appellee agreed to “provide all material, labor, and supervision thereof to furnish and install all of the buildings [the two poultry houses] . . . as shown on the plans and specifications. . . .” The contract also contained a disclaimer of warranty which stated in capitalized letters that appellee “MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY STATED HEREIN.”

“[T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” OCGA § 11-2-316 (2). “A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. . . Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type . . . Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” OCGA § 11-1-201 (10). The combination of the capitalization of the disclaimer and its contents was sufficient to preclude an action against appellee for breach of the implied warranties of merchantability and fitness. Harris v. Sulcus Computer Corp., 175 Ga. App. 140 (3) (332 SE2d 660) (1985). The grant of summary judgment on the allegations concerning breach of the implied warranties was not error.

3. It is undisputed that appellee designed and constructed the poultry houses. Appellant’s cause of action for negligent construction accrued in 1983 when the damage (leakage) first manifested itself (Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461 (330 SE2d 344) (1985); Shaw v. Petersen, 180 Ga. App. 823 (2) (350 SE2d 831) (1986)), and was timely filed in June 1984. OCGA § 9-3-30.

Appellee posits that summary judgment in its favor on the issue of negligent construction was proper based on appellant’s testimony. Appellee points out that appellant testified that he was satisfied with the construction of the poultry houses when construction was completed in 1979; that he did not have personal knowledge of any defect in the manner of construction of the houses; that, as far as he could tell, the houses had been built properly; and that he thought the Onduline material was defective no matter how installed. However, appellant also testified that he inspected the leaking roofs and found the nails “sticking up” from the roofing material, and that holes in the roofs usually appeared where a nail had been driven. A witness who had personally installed Onduline on his own poultry houses testified that Onduline must be installed with care with nails Onduline supplied. The record also contains a letter dated February 21, 1984, to appellant from the director of technical and field services for Onduline, which states: “We have reviewed the leakage complaint concerning the Onduline roofing on your poultry houses. From the information and photographs and sample submitted it is apparent that there are many possible contributors to your leakage problem as follows: 1. The recommended nailing pattern . . . was not followed . . . Also, on several end laps the roofing was nailed through the top of every other corrugation instead of every corrugation as recommended. This . . . produces] gaps where wind-driven rain can blow through. 2. The nails used on this building were not the nails supplied by Onduline ... 3. Some of the nails are popped, meaning lifted, out of the wood framing. This is an indication of probable use of green wood during construction. . . .”

“On motion for summary judgment, the party opposing the motion[s] is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. [Cits.]” Eiberger v. West, 247 Ga. 767 (1) (281 SE2d 148) (1981). Inasmuch as the record contains evidence from which it can be inferred that the leakage of appellant’s roofs may have been proximately caused by negligent construction on the part of appellee, it was error to grant summary judgment to appellee on this claim.

4. In light of our holding in Division 2, it was not error to grant summary judgment to appellee on the claim of stubborn litigiousness. “[I]n a case where bad faith is not at issue, attorney fees are not authorized under OCGA § 13-6-11 ... if the evidence shows that ‘a genuine dispute exists’ .... [Cit.]” Dimambro Northbend Assoc. v. Williams, 169 Ga. App. 219 (6) (312 SE2d 386) (1983).

Decided March 21, 1988

Rehearing denied March 29, 1988

Nathaniel D. Wages, for appellant.

Rex M. Lamb III, John E. Stephenson, Jr., Jay D. Bennett, for appellee.

Judgment affirmed in part and reversed in part.

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


author: Carley, Judge. Deen, Presiding Judge, Banke, Presiding Judge,

text:
    75211.
    DAN RIVER, INC. v. SHINALL.
    (367 SE2d 846)
   Carley, Judge.

Appellee-employee suffered a back injury which arose out of and in the course of her employment with appellant-employer. As a result of this back injury, appellee began receiving workers’ compensation income and medical benefits from appellant. However, when a bill for alcohol detoxification treatment which had been provided to appellee was submitted for payment as an authorized medical expense, appellant refused to pay it. Appellee then filed a claim with the State Board of Workers’ Compensation, wherein she asserted that her alcohol dependency and her need for detoxification had been the direct result of the pain and depression which had accompanied the compensable injury to her back. The administrative law judge (ALJ) made a finding that appellee’s alcohol detoxification had resulted from her job-related injury and appellant was ordered to pay for those services. Upon its de novo review, the Full Board made the ALJ’s award its own. On appellant’s appeal to the superior court, the award of the Full Board was affirmed. Appellant’s application for a discretionary appeal to this court from the superior court’s affirmance of the Full Board’s award was granted.

OCGA § 34-9-1 (4) sets forth the controlling statutory definition of a compensable “ ‘injury’ or ‘personal injury’ ” for purposes of workers’ compensation. By its terms, that statute contains not only a general definition of what constitutes a compensable “injury” or “personal injury,” but it also specifies certain circumstances or conditions wherein a finding of a compensable “injury” or “personal injury” will not be authorized. OCGA § 34-9-1 (4) mandates an absolute prohibition against a finding of a compensable “injury” or “personal injury” under certain circumstances: “ ‘Injury’ and ‘personal injury’ shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee. . . .” (Emphasis supplied.) The statuté also provides for a conditional prohibition as to certain specified diseases: “ ‘Injury’ and ‘personal injury’ shall not . . . include heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis unless it is shown by a preponderance of competent and credible evidence that any of such conditions were attributable to the performance of the usual work of employment.” (Emphasis supplied.) In 1973, OCGA § 34-9-1 (4) was amended to add the following: “Alcoholism or disabilities attributable thereto shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of the employment. Drug addiction or disabilities resulting therefrom shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of the employment except when such addiction was caused by the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician.” (Emphasis supplied.) It is clear that the legislative intent of this 1973 amendment is to extend the absolute prohibition against a finding of a compensability as an “injury” or “personal injury” to cases of alcoholism and to extend the conditional prohibition against such a finding to certain cases of drug addiction. Accordingly, the issue for resolution is what effect this absolute statutory prohibition as to alcoholism has in this case.

Appellee urged and the superior court found that OCGA § 34-9-1 (4) is applicable only as to the initial “injury” or “personal injury” upon which an employee ultimately premises his claim for workers’ compensation benefits. Thus, under this interpretation given to OCGA § 34-9-1 (4) by the superior court, it is only the employee who has asserted alcoholism as his initial work-related injury who would be barred from recovering benefits as attributable thereto. It is undisputed that appellee’s initial injury was not alcoholism but was a compensable accidental “injury” to her back and the evidence would authorize the finding that her alcoholism arose from the pain and depression caused by her compensable back injury. The superior court found that the costs of treating appellee for that alcoholism are, therefore, recoverable as an element of the medical benefits to which her back injury would entitle her.

If OCGA § 34-9-1 (4) constitutes a bar to the recovery of benefits only where alcoholism is the initial injury, then the 1973 amendment of that statute was superfluous. Prior to 1973, our workers’ compensation law already contained an explicit prohibition on the recovery of benefits by an employee whose initial job-related injury was the proximate result of his intoxication. See OCGA § 34-9-17; Castleberry v. U. S. Fid. &c. Co., 126 Ga. App. 425 (190 SE2d 831) (1972). Moreover, if the intent of the 1973 amendment had merely been to provide for the non-compensability of alcoholism only as an initial “injury,” the legislature would presumably have expressed that intent in language similar to that which it contemporaneously employed as to the issue of drug addiction. The 1973 amendment specifies that subsequent addiction which is caused by the use of drugs or medicines prescribed by an authorized physician for the initial injury is to be deemed a compensable “injury” or “personal injury.” Thus, if appellee’s addiction were attributable to such prescribed drugs or medicines, there is no doubt that the cost of her detoxification would be compensable pursuant to OCGA § 34-9-1 (4). However, the legislature did not similarly specify in the 1973 amendment that subsequent alcoholism, if attributable to the initial injury, is to be deemed compensable. To the contrary, the legislature stated, without condition or limitation, that alcoholism “shall not be deemed” to be a compensable “injury” or “personal injury.” Thus, the interpretation given by the superior court to the 1973 amendment to OCGA § 34-9-1 (4) would be contrary to at least two rules of statutory construction. That construction would render the effect of the 1973 amendment entirely superfluous as to the issue of alcohol, notwithstanding the rule of statutory construction that “ ‘[a] legislative body should always be presumed to mean something by the passage of an act.’ ” Humthlett v. Reeves, 211 Ga. 210, 219 (2) (85 SE2d 25) (1954). The construction utilized by the superior court would also ignore the contemporaneous language of the entire statutory provision, notwithstanding the rule that “[i]n the construction of a statute the legislative intent must be determined from a consideration of it as a whole. [Cit.] The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole. [Cit.]” Williams v. Bear’s Den, Inc., 214 Ga. 240, 242 (104 SE2d 230) (1958).

When the applicable rules of statutory construction are applied, it is clear that the legislative intent of the 1973 enactment was to address the compensability of claims involving addiction and to preclude a recovery for any and all claims for compensation based upon alcoholism and to authorize the recovery of claims for compensation based upon drug addiction under limited circumstances. Nothing that is relied upon by appellee compels a contrary result. Having been reversed by the Supreme Court, this court’s decision in Bullington v. Aetna Cas. &c. Co., 122 Ga. App. 842 (178 SE2d 901) (1970), rev’d 227 Ga. 485 (181 SE2d 495) (1971) has no precedential value. In fact, a strong argument could be made that the 1973 amendment to OCGA § 34-9-1 (4) envinces the General Assembly’s intent that, as to the compensability of claims based upon alcoholism, the existing statutory workers’ compensation law of this State never again be subject to the judicial construction reached in Bullington. Although the workers’ compensation law is to be liberally construed in favor of the claimant, this court has no authority to ignore the clear language of a statute and to allow the recovery of compensation benefits where the legislature has specified that it shall be denied. If compensation for alcoholism, whether it be in the form of income or medical benefits, is to be authorized in this State, it is for the legislature to amend OCGA § 34-9-1 (4) and not for this court to ignore that provision. The superior court erred in affirming the erroneous award of the State Board of Workers’ Compensation.

Judgment reversed.

Birdsong, C. J., Sognier, Pope and Beasley, JJ., concur. Deen, P. J., concurs and also concurs specially. McMurray, P. J., Banke, P. J., and Benham, J., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, I offer the following, additional relevant observations.

The statutory and case law of this state simply do not sanction the claimant’s compensation claim in this case. In Bullington v. Aetna Cas. &c. Co., 122 Ga. App. 842 (178 SE2d 901) (1970), compensability was not ruled out on a claim based on an employee’s having drunk himself to death because of a back injury. This writer concurred in that result then, but acknowledges now that that view was erroneous. (It is the absurd man who never changes his mind. State Farm Mut. Auto. Ins. Co. v. Holmes, 175 Ga. 655, 657 (333 SE2d 917) (1985) (Deen, P. J., dissenting)). In any event, Bullington does not support the claimant here, because (1) as noted by the majority opinion, the Supreme Court reversed it (227 Ga. 485 (181 SE2d 495) (1971)), and (2) Bullington had no precedential value in the first place because it was a two-judge decision.

In Grimes v. Burch, 223 Ga. 856, 860 (159 SE2d 69) (1968), the Supreme Court (all seven justices concurring) settled the policy in this state on the voluntariness of alcoholism. In doing so, the court relied upon the wisdom of Chief Justice Joseph Henry Lumpkin, which evidently bears repeating: “ ‘The fact is, responsibility depends upon the possession of will — not the power over it. Nor does the most desperate drunkard lose the power to control his will, but he loses the desire to control it. No matter how deep his degradation, the drunkard uses his will whenever he takes his cup. It is for the pleasure of the relief of the draught, that he takes it. His intellect, his appetite, and his will, all work rationally, if not wisely, in his guilty indulgence. And were you to exonerate the inebriate from responsibility, you would do violence both to his consciousness and to his conscience; for he not only feels the self-prompted use of every rational power involved in accountability, but he feels, also, precisely what this new philosophy denies — his solemn and actual wrongdoing, in the very act of indulgence. Converse seriously with the greatest drunkard this side of actual insanity — just compose him, so as to reach his clear, constant experience, and he will confess that he realizes the guilt, and therefore the responsibility of his conduct. A creature made responsible by God, never loses his responsibility, save by some sort of insanity.’ ” Choice v. State, 31 Ga. 424, 473-474 (1860). See also Burger v. State, 118 Ga. App. 328 (163 SE2d 333) (1968), wherein eight judges on this court rejected alcoholism as a disease or type of defense to a charge of drunkenness. (If a disease, it is the only disease that can be legally bottled and sold over the counter.)

It is thus clear that in this state, it is the drinker’s choice to drink, and the consequences of that drinking must be borne by the drinker. In the specific context of workers’ compensation claims, even the dissenting opinion yields to the statutory provision that “[a]lcoholism or disabilities attributable thereto shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of the employment.” OCGA § 34-9-1 (4). By reasoning that the claim for alcoholic detoxification may be compensable as a medical expense relative to the back injury that was compensable, however, the dissenting opinion seeks to allow a claimant to recover indirectly what she could not recover directly, and places no value upon personal responsibility.

In the instant case, even accepting the employee’s explanation that her alcoholism resulted from her efforts to obtain relief from the pain and depression caused by her back injury, under the law it was her choice to drink abusively and the consequences of that choice are her responsibility. Were the law to bestow the indirect reward upon a claimant for making the choice of dipsomania, as advocated by the dissenting opinion, this court may as well open the lid of a Pandora’s box for compensation claims for the various costs consequential to pyromania, kleptomania, nymphomania, and any other mania, the indulgence of which may provide some distraction from the pain and depression experienced by an injured employee.

Banke, Presiding Judge,

dissenting.

The majority’s decision in this case is premised on a factual finding which the board did not make and which the evidence of record does not necessarily warrant — namely, that the claimant was treated for “alcoholism.” Additionally, even if the claimant was treated for “alcoholism,” it does not necessarily follow that the expense of her alcohol detoxification treatment must be disallowed pursuant to OCGA § 34-9-1 (4), for she did not seek to have her alcohol abuse problem, however it is characterized, treated as a separate “ ‘injury’ or ‘personal injury’ by accident arising out of and in the course of [her] employment.”

The claimant sustained the disabling back injury on which this claim is based on February 18,1984. She returned to work on July 11, 1984, after undergoing a lumbar laminectomy, but was again forced to discontinue work on November 16, 1984, due to increasing low back pain attributable to the injury. In May of 1987, while continuing to receive temporary total disability benefits for the back injury, she presented herself for treatment at the Atlanta Pain Control Center. However, as a prerequisite to beginning that treatment, she was first required to undergo a two-week period of alcohol detoxification at the Georgia Baptist Medical Center. According to the medical evidence, her diagnosis at that time was “not one of chronic alcohol addiction but acute alcohol abuse secondary to depression . . . and pain. . . .”

OCGA § 34-9-1 (4) specifies that “[a]lcoholism or disabilities attributable thereto shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of the employment.” The evidence of record in this case does not establish beyond dispute that the claimant was treated for “alcoholism,” and the board certainly made no such finding. Moreover, regardless of the terminology used to characterize the claimant’s alcohol abuse problem, she clearly did not seek to have that problem treated as a separate injury or even as a separate disability arising from her employment. Rather, she was merely seeking to recover the expense of her detoxification treatment as a medical expense arising from her back injury.

Pursuant to OCGA § 34-9-200 (a), the employer is required to “furnish the employee entitled to benefits under this chapter compensation for costs of such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” The board has expressly determined in this case that the claimant’s alcohol abuse problem was directly attributable to her back injury and has impliedly determined that the detoxification treatment which she received was reasonably necessary to afford her relief from the pain she was experiencing as a result of that injury, and thereby to restore her to suitable employment. The evidence of record supports both these determinations. In accordance with the oft stated principle that the Workers’ Compensation Act should be liberally construed so as to effecutate its humane objectives (see, e.g., U. S. Asbestos v. Hammock, 140 Ga. App. 378, 379 (231 SE2d 792) (1976)), I would therefore affirm the order of the superior court sustaining the board’s award in this case. Accord North Ga. Tech. &c. School v. Boatwright, 144 Ga. App. 66 (240 SE2d 563) (1977). See also 1 Larson, Workmen’s Compensation Law, § 13.21, p. 3-422, n. 93.

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

Decided March 14, 1988

Rehearing denied March 29, 1988

H. Clifton Woodson, for appellant.

James E. Greene, for appellee.


author: Beasley, Judge.

text:
    75465.
    COOP et al. v. THE STATE.
    (367 SE2d 836)
   Beasley, Judge.

Co-defendants Coop and Coleman appeal the denial of their motion for new trial following their convictions and sentences for trafficking in marijuana, OCGA § 16-13-31 (c).

The evidence construed so as to uphold the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), showed the following. On May 17,1986, Oklahoma residents Coleman and Coop flew from Tulsa to Miami, Florida, changing planes in Memphis, Tennessee. The tickets were one-way and paid for in cash. At 4:10 a.m. on May 20, a Georgia State Patrol trooper stopped a car for speeding on Interstate 75 in Whitfield County. Coleman was driving and Coop was the passenger. The car rental agreement indicated that the car had been rented through an agency in Ft. Lauderdale, Florida, by a Phyllis Elias for a twenty-four hour period and limited to use in Florida by Elias.

Based on his experience and training in drug interdiction, the trooper became suspicious of Coleman and Coop during the traffic stop. He requested that Coleman give consent to search the vehicle, and Coleman gave verbal consent and appeared to read the written waiver form stating his rights but refused to sign it. The search produced wet and sandy tennis shoes, blue jeans and t-shirt from the backseat floorboard, an airline ticket receipt for a one-way flight to Miami with a change in Memphis on May 17, in the name of “Louie Murphy,” and two wet and sandy bales of what tested as 112 pounds of marijuana. The marijuana was found when the trooper raised the bottom part of the backseat, smelled a strong odor of marijuana, eventually removed the backseat, saw a green duffel bag in the trunk, and opened it.

1. Appellants maintain that the trial court erred in failing to grant their motion to suppress because a) the trooper’s stop of their car was pretextual in that the trooper’s motive was not to give them a warning ticket for speeding but was really subterfuge to detain them so that he could investigate whether or not the vehicle contained contraband; b) the extent of the stop far exceeded the permissible scope allowed for the issuance of a “state patrol courtesy warning” for speeding; c) the evidence of the stop predicated upon the use of radar by the trooper was not admissible as the State failed to present the necessary foundation to support the radar test results; d) there was no valid consent to search given by Coleman.

a) Pretextual stop. The trooper testified that he stopped defendants’ car because it was exceeding the speed limit, a violation of OCGA § 40-6-181 (b) (2). Vehicles which are involved in traffic offenses are routinely stopped by the state patrol. Because the trooper who spotted the traffic violation by defendants was trained to be vigilant for drug traffickers would not alter his authority to make a routine traffic stop. See Eisenberger v. State, 177 Ga. App. 673, 674 (2) (340 SE2d 232) (1986); State v. High, 145 Ga. App. 772, 773 (2) (244 SE2d 888) (1978).

Appellants cite as supportive recent federal cases involving traffic stops based upon a drug courier profile. This case differs because the initial stop was based on an observed traffic violation. They also contend that it is further evidence of pretext that the trooper radioed for a back-up unit prior to asking for and receiving consent to search the car. This precaution came after the trooper observed circumstances raising his suspicions that drugs might be concealed in the car.

b) Extent of stop. Appellants argue that the trooper had the right pursuant to OCGA § 40-5-29 to ask Coleman to display his driver’s license but that he did not have the right to demand the vehicle’s registration or in this case its rental documents because of the provisions of OCGA § 40-2-90 (b) (2), so that detention was unreasonable under Florida v. Royer, 460 U. S. 491, 500 (103 SC 1319, 75 LE2d 229) (1983). By its terms, OCGA § 40-2-90 (b) (2) gives visitors to the state the right to use and operate motor vehicles on the public streets and highways for pleasure purposes only for 90 days without registering the vehicle. This does not restrict a law enforcement officer from performing his duty when stopping a visiting motorist for a traffic violation. The tag number indicated it was a rental car.

c) Radar. Appellants argue that the State failed to present the necessary foundation to support the radar test results so as to preclude evidence of the stop predicated on radar use. It is true that the State’s evidence did not satisfy the requirements of Wiggins v. State, 249 Ga. 302, 304 (2) (290 SE2d 427) (1982) for the admissibility of evidence of speed gained by a state law enforcement officer through use of radar, and that failure to meet the requirements would render inadmissible the evidence of speed gained by the use of the radar. But the issue of speeding was before the court on the motion to suppress only on the question of legitimacy of the initial stop of defendants’ car and not on the substantive offense of speeding, as it was in Wiggins. Moreover, evidence of speeding as testified to by the trooper was gleaned from the trooper’s visual observation of the vehicle’s motion, as well.

d) Consent to search. Appellants ask the court to follow the authority of another jurisdiction and “[fashion] an exclusionary rule as to the entirety of State’s testimony concerning the admissibility of an unrecorded consent that is controverted.” We decline to do so. For one thing, that relates to in-custody interrogations, not roadside consents to search. We conclude instead that “[t]he trial court was authorized by the evidence to find that [Coleman] consented to the search of the automobile freely and voluntarily and not as the result of coercion, duress, or deceit. [Cits.]” Smith v. State, 165 Ga. App. 333, 334 (2) (299 SE2d 891) (1983).

2. Appellants contend that the trial court erred in refusing to grant their motion for a directed verdict of acquittal and their motion for new trial on the basis that the State failed to prove that each or both of them had actual possession of the contraband. Each admitted driving the vehicle at alternate times.

“The ‘actual possession’ required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729, 736 (2) (360 SE2d 400) (1987); Evans v. State, 167 Ga. App. 396 (1) (306 SE2d 691) (1983); Lockwood v. State, 184 Ga. App. 262, 265 (5) (361 SE2d 195) (1987), rev’d on other grounds, 257 Ga. 796 (364 SE2d 574) (1988). The evidence described above was sufficient to enable any rational trier of fact to find that both defendants had such possession of the 112 pounds of marijuana beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellants also contend that they were entitled to a directed verdict of acquittal because the State’s evidence failed to prove that they were in actual possession of more than 100 pounds of marijuana as is required under OCGA § 16-13-31 (c).

A forensic chemist of the drug identification section of the Georgia Crime Laboratory testified that he performed the appropriate tests and determined that the substance found was marijuana and that he weighed the two compressed bales without the duffel bag and found one to weigh 39 pounds and the other 73 pounds for a total of 112 pounds. Though defendants at trial attempted to raise the spectre that the inside of the bales might have contained a substance other than marijuana since the chemist’s assessment of the composition of the bales was made from samples of both and not from a testing of every part of each bale, there was no evidence that the bales were constituted of anything other than marijuana.

Decided March 11, 1988

Rehearing denied March 29, 1988

E. Neil Wester III, for appellants.

Jack O. Partain III, District Attorney, Kermit D. McManus, Assistant District Attorney, for appellee.

4. Lastly, appellants challenge the court’s refusing to give their requested charge on character evidence and in lieu thereof giving a confusing and burden-shifting charge.

The request provided: “regardless of whether or not the defendants have any other defense, and regardless of whether or not there is any other evidence in the record upon which a reasonable doubt as to their guilt could be based, proof of good character may of itself constitute such a defense in their behalf, and you, the jury, overriding any amount of positive evidence pointing to the guilt of the defendants may, if you see fit, acquit the defendants upon the reasonable doubt and proof of good character generated in your minds, . . .” This is an inaccurate statement of law because good character does not provide a substantive defense but only a substantive fact. Edwards v. State, 255 Ga. 149, 150 (1) (335 SE2d 869) (1985). See also Cook v. State, 256 Ga. 808, 810 (1) (353 SE2d 333) (1987).

The court did charge that “in criminal cases the Defendant is allowed, if he sees fit, to offer evidence as to his general good character; and when such evidence is offered, it is the duty of the Jury to take that testimony, along with all other testimony in the case in determining the guilt or the innocence of the Defendant. Good character is a positive, substantive fact and may of itself be sufficient to generate in the minds of a Jury a reasonable doubt as to the guilt of the Defendant. It is the duty of the Jury to take any evidence of general good character, along with all other evidence in the case, and if, in doing so, the Jury should entertain a reasonable doubt as to the guilt of the Defendant, they should acquit. Nevertheless, if the Jury should believe the Defendant guilty beyond a reasonable doubt, it would be their duty to convict, notwithstanding the evidence as to the general good character.” This was a proper charge, not confusing or burden-shifting. Id.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    75594.
    FUDGE v. COLONIAL BAKING COMPANY OF ATLANTA.
    (367 SE2d 814)
   Benham, Judge.

Appellant Fudge slipped and fell while visiting the bakery owned and operated by appellee. Appellee’s motion for summary judgment was granted, and appellant filed this appeal.

1. The trial court’s order granting summary judgment to appellee reads as follows: “Defendant’s motion for summary judgment having come on for hearing on April 27, 1987, the same is hereby granted.” Appellant maintains the order and the judgment entered thereon are deficient due to the trial court’s failure to state grounds for the decision and to indicate in its order that the record had been reviewed.

The fact that the trial court’s order “does not affirmatively indicate that it considered the record” is not cause for reversal. Smith v. Jones, 154 Ga. App. 629 (1) (269 SE2d 471) (1980). See also Griffin v. Crown &c. Petroleum Co., 171 Ga. App. 534 (2) (320 SE2d 383) (1984). It is not necessary to include findings of fact and conclusions of law on decisions on motions for summary judgment. OCGA § 9-11-52 (a); Karsman v. Portman, 173 Ga. App. 108 (3) (325 SE2d 608) (1984).

2. In her deposition, the 84-year-old appellant testified that she had visited the bakery thrift store previously. She stated that an area rug covered the flooring of the bakery’s entry. Appellee admitted that a rubber-backed “removable” area rug was used at the spot. Intending to descend the two steps into the bread area, appellant testified that she stepped on what she thought was the rug-covered top of the uppermost step. However, when she placed her foot there, it gave way and she fell, catching the heel of her shoe in the rug. Appellant stated the rug was over the edge of the step and that she had “stepped on it as a step.” Appellant alleged in her complaint that appellee knew or should have known from its long-term use of area rugs on the flooring that the rug would slide and extend over the edge of the top step. While admitting that the entrance rug is changed “on a regular basis,” appellee contended that the rubber-backing of the rug prevented it from moving.

On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Fiumefreddo v. Scudder, 252 Ga. 279, 282 (313 SE2d 683) (1984). On motion for summary judgment, the movant must negate every theory of recovery which the non-moving party might have. Reid v. Reid, 246 Ga. 592 (2) (272 SE2d 685) (1980).

Decided February 9, 1988

Rehearing denied March 29, 1988.

Ray C. Norvell, Sr., for appellant.

Robert A. Barnaby II, Christopher N. Shuman, for appellee.

Construing the evidence most strongly against appellee and giving the benefit of all reasonable doubts and favorable inferences to appellant, we conclude that a theory of recovery can be drawn from the pleadings and the evidence of record, and that appellee failed to produce evidence that conclusively negates an essential element of appellant’s case. Summary judgment for appellee, therefore, was inappropriate. See Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983).

Judgment reversed.

Banke, P. J., concurs. Carley, J., concurs in judgment only.


author: McMurray, Presiding Judge.

text:
    75764.
    COLLINS et al. v. RALSTON & OGLETREE, INC.
    (367 SE2d 861)
   McMurray, Presiding Judge.

James E. Collins and Arlene M. Collins (plaintiffs) brought an action against Ralston and Ogletree, Inc. (defendant) and others, seeking damages for the malfunctioning septic tank system that is located on their property. Plaintiffs alleged that defendant’s negligence was the proximate cause of the injury to their property. Defendant denied the material allegations of the complaint and the case was tried before a jury, where plaintiffs’ evidence showed that defendant purchased “approximately fifty acres . . .” of land in Chatham County, Georgia and in “[19]77 or [19]78” began developing thereon a residential development known as Riversbend Subdivision. Helmly, Purcell & Associates, Inc. engineered the development by designing and implementing the subdivision “paving, grading, and drainage [plan].” Pursuant to Helmly’s efforts, the Chatham County Health Department approved Riversbend Subdivision for the use of septic tank waste disposal systems.

In May 1979 plaintiffs purchased a house which had been constructed by a builder on a lot in Riversbend Subdivision. During construction of the house, one of the builder’s subcontractors installed on plaintiffs’ lot a septic tank waste disposal system according to plans provided by the Chatham County Health Department. After the system was installed, the septic tank and nitrification field were inspected and approved for use by an inspector of the Chatham County Health Department.

Shortly after moving into their house, plaintiffs began experiencing difficulties with their septic tank system and, after a prolonged period of unsanitary conditions at their home, plaintiffs hired Colonel Paul W. Ramee, a civil engineer, to determine the source of their problems. Colonel Ramee excavated and examined part of plaintiffs’ septic tank system, examined the soil conditions of plaintiffs’ property, determined various elevations of plaintiffs’ lot and concluded that plaintiffs’ septic tank system was improperly installed and that the engineering of plaintiffs’ lot was insufficient to overcome soil conditions that were unfavorable for the use of a septic tank waste disposal system.

Mr. Benjamin E. Gay, also a civil engineer, examined the soil conditions of Riversbend Subdivision and determined that the soil was not favorable for septic tank waste disposal systems and concluded that implementation of an appropriate subdivision engineering plan was essential to overcome the soil deficiencies so that septic tank waste disposal systems could function properly in the subdivision.

At the close of plaintiffs’ evidence, the trial court granted defendant’s motion for directed verdict and allowed the trial to proceed as to plaintiffs’ claims against the other defendants. This appeal followed the denial of plaintiffs’ motion for new trial. Held:

Plaintiffs argue that the trial court erred in directing a verdict in favor of defendant because their evidence showed that defendant was aware that the soil of Riversbend Subdivision was unsuitable for the use of septic tank waste disposal systems prior to developing the subdivision. This argument is not supported by the record.

Although plaintiffs’ evidence showed that the soil of plaintiffs’ lot and of Riversbend Subdivision was unfavorable for septic tank systems use, they presented no evidence which indicated that the soil was completely unsuitable for the use of septic tank waste disposal systems. On the contrary, one of plaintiffs’ expert witnesses testified that use of septic tank waste disposal systems in an area with the characteristics of Riversbend Subdivision was possible if the land was engineered so as to overcome the deficiencies of the soil.

Turning now to plaintiffs’ general allegation of negligence against defendant, we observe that “[n]egligence is not to be presumed, but is a matter for affirmative proof. Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475, 487 (170 SE2d 848), aff’d 226 Ga. 221 (173 SE2d 691), op. supp. 121 Ga. App. 717 (175 SE2d 410). In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. 65A CJS 444, Negligence, § 204.” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 368 (203 SE2d 587). In the case sub judice, the pivitol issue is whether plaintiffs have overcome this presumption by presenting evidence to support their allegation of negligence against defendant.

Decided March 17, 1988

Rehearing denied March 29, 1988

Stephen R. Yekel, for appellants.

Phillip R. McCorkle, I. Gregory Hodges, Roy E. Paul, Walter C. Hartridge, for appellee.

It is uncontradicted that defendant took no part in engineering plaintiffs’ lot, constructing plaintiffs’ house or planning and installing the septic tank system on plaintiffs’ property. It is also undisputed that the Chatham County Health Department approved Riversbend Subdivision for use of septic tank waste disposal systems, issued a permit for installation of a septic tank system on plaintiffs’ property and approved the system that was installed on plaintiffs’ property. These circumstances do not support a finding that plaintiffs’ damages were the proximate result of defendant’s development of Riversbend Subdivision. “Where [a] ‘(p)laintiff simply fail(s) to prove his case . . . the direction of a verdict (is) proper . . .’ Carr v. Jacuzzi Bros., 133 Ga. App. 70, 74 (210 SE2d 16) (1974); Wagner v. Timms, 158 Ga. App. 538 (281 SE2d 295) (1981); OCGA § 9-11-50 (Code Ann. § 81A-150).” Smith v. Morico, 166 Ga. App. 737, 738 (305 SE2d 465). In the case sub judice, since plaintiffs failed to prove any fault on the part of defendant, the trial court did not err in directing a verdict in favor of defendant. See Hall v. Richardson Homes, 168 Ga. App. 593, 595 (2), 597 (4) (309 SE2d 825), and Dunant v. Wilmock, Inc., 176 Ga. App. 48 (335 SE2d 162).

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.


text:
    75838.
    LAVISTA EQUIPMENT SUPPLY, INC. v. ELLIOTT.
    (367 SE2d 811)
   Birdsong, Chief Judge.

We granted this interlocutory appeal to determine whether the Board of Workers’ Compensation, and the superior court by affirmance, erred in application in an alleged heart attack case of the “natural presumption,” by holding that “ ‘where an employee is found dead in a place where he might reasonably be expected to be in the performance of his duties, a natural presumption arises that his death arose out of and in the course of his employment.’ Brown Transport Corp. v. Jenkins, 129 Ga. App. 457, 460 [199 SE2d 910]. The speculative opinion of a coroner does not reveal the cause of death with sufficient medical certainty to rebut such presumptions in the absence of an autopsy in this case.”

Employee Otis P. Elliott died on the job, while sitting in his employer’s truck at a railroad crossing. The medical examiner stated Elliott died of (1) myocardial failure, (2) acute coronary insufficiency and (3) atherosclerosis; the coroner relied on this statement as the cause of death. The board found this opinion to be speculative only, since there was no autopsy. There was evidence Elliott had, a few days before his death, suffered an episode of severe chest pain at home; and his family physician testified he performed thoracic surgery on Elliott in 1972. He also testified that Elliott’s death could have been the result of causes other than heart attack and that his work activities were not sufficient to cause his death.

On appeal, the employer contends the opinion of the medical examiner (and coroner) that Elliott died of myocardial failure, acute coronary insufficiency and atherosclerosis, was based on Elliott’s medical history and other information, and did reveal a definitive cause of death, contrary to the board’s finding that without an autopsy the opinion was merely speculative. Therefore, says the employer, the death was not unexplained, and so there never arose the natural inference that a death is employment-related “when an employee is found dead in a place where he should be in the performance of his duties.” Held:

Elliott’s grandson, who was with him in the truck when he died, said Elliott had had an extremely difficult time driving this truck. This testimony is not disputed by any contradiction, i.e., by any evidence he positively did not have a difficult time driving the truck. The board found Elliott’s occupation was “of a strenuous nature.” This finding is supported by evidence.

It is true that “ ‘when an employee is found dead in a place where he might reasonably have been expected to be in the performance of his duties, it is presumed that the death arose out of his employment.’ ” But this inference applies only to cases where the death is unexplained, that is, where the employee literally is “found dead” and the cause of death is not known. See Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82, 84 (290 SE2d 192). In such a case the difficulties of proof necessitate this inference. Wherever the cause of death (e.g., strangulation, shooting, heart attack) is known, the death is explained; the question whether the death was work-related is then generally capable of objective proof, and there is no need for a presumption that it was caused by employment duties. That is, the claimant is not entitled to rely upon the presumption that the death arose out of the deceased’s employment but must submit probative proof on the issue of the causal connection so as to comply with the requirements in OCGA § 34-9-1 (4). Id. p. 85.

If the death is found to be explained as heart-related, the case is expressly governed by the specific standard of proof in OCGA § 34-9-1 (4), which provides: “nor shall ‘injury’ and ‘personal injury’ include heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis unless it is shown by a preponderance of competent and credible evidence that [it was] attributable to the performance of the usual work of employment.” See G. & H. Logging v. Burch, 178 Ga. App. 28, 30 (341 SE2d 868); Brown Transport Corp. v. Blanchard, 126 Ga. App. 333 (190 SE2d 625).

The author has contended on occasion that, difficulties of proof notwithstanding, the clear and specific provisions of this code section as to heart attack cases, preclude the controlling application as “any evidence” of any inference that the heart attack arose in and out of the course of employment. Zippy Mart v. Fender, 170 Ga. App. 617 at 620, 624 (3) (317 SE2d 575) (dissent, J. Birdsong); Home Indem. Co. v. Guye, 143 Ga. App. 494 (238 SE2d 549) (concurrence in judgment only, J. Birdsong) at p. 496. But, in Guye v. Home Indem. Co., 241 Ga. 213 (244 SE2d 864) and in Southwire Co. v. Cato, 250 Ga. 895, 897 (302 SE2d 91), the Supreme Court held that when the death is explained as heart attack, there arises a natural inference the death was work-related if the evidence shows the work engaged in by the employee was sufficiently strenuous or of such a nature that, combined with the other facts of the case as to raise such a natural inference through human experience that the exertion contributed toward the precipitation of the attack. Hoffman v. Nat. Surety Corp., 91 Ga. App. 414 (85 SE2d 784). This is not the same inference that arises when a death is unexplained.

The Supreme Court has also held this inference does not disappear upon the presentation of medical testimony (Southwire Co., supra at p. 898); but, by itself, it can satisfy the statutory requirement of “preponderance of competent and creditable evidence” where there is no medical evidence to the contrary. Guye v. Home Indem. Co., supra.

In this case, the medical examiner concluded, based upon the medical information and history of Elliott, that he died of a heart attack. However, another medical expert testified that the conclusion Elliott suffered a heart attack is speculative, and the death could have resulted from other causes; thus the board’s conclusion that in the absence of an autopsy the death is unexplained, is supported by evidence. The board therefore correctly followed the inference appropriate to unexplained deaths. Thus, although the board somewhat gratuitously found that Elliott’s work was strenuous, the board nevertheless declined to find the cause of death was explained as heart attack.

If the death is explained as heart attack, the statute (OCGA § 34-9-1 (4)) requires a specific high standard of proof of what is next to impossible to prove and the courts have allowed that proof to be reached by supposition, not by “a preponderance of competent and credible evidence,” as the statute expressly requires. This obviously troubles the board, as well it should. Under the state of the statute as it is permitted to exist by the legislature and the case law as it has been conceived to deal with the statute, the ingenious solution of the board, of avoiding the troublesome issue of proof in a heart attack situation and relying instead upon the inference arising from unexplained death in this case, cannot be faulted.

Judgment affirmed.

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

On Motion for Rehearing.

On motion for rehearing the employer Lavista Equipment Supply, perhaps misled by our comment that heart attack cases properly should be governed by the statute, (OCGA § 34-9-1 (4)), and not by an inference or presumption of work-relatedness, contends we apparently thought the board here found Elliott’s death to have been caused by heart attack. However, for the opinion makes it clear the board, as it was authorized to do, rejected the evidence of heart attack as too speculative in this case, and found the death to be unexplained, thus giving rise to the presumption of work-relatedness.

What the employer contends on motion for rehearing is that any evidence demonstrating the cause of death makes the unexplained-death presumption of work-relatedness disappear. Employer bases this assertion on language in Southern Bell v. Hodges, 164 Ga. App. 757 (298 SE2d 570), at p. 761. However, Southern Bell did not say this. It said that where cause of death is known (e.g., shooting) any evidence enabling an analysis of whether the death was work-related, destroys the presumption that it arose in the course of work. Thus is explained the holding in Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82 (290 SE2d 192) that although the cause of death was known and explained (strangulation) the presumption of work-relatedness still arose because evidence to the contrary did not affirmatively establish the death did not occur in the course of employment. The evidence looked for in Zamora was evidence of work-relatedness. The “any evidence” we looked for in Southern Bell to destroy the presumption was not “any evidence” as to cause; but cause being established, what we looked for was any evidence that would enable an analysis to determine whether the (known) cause of death was work-related. This is the ultimate question.

The confusion on this point arises in the appellee employer’s (and the board’s) statements that the evidence of heart attack goes to rebut or destroy the presumption that death arose in the course of employment. The evidence of heart attack is evidence of cause, and once it has been rejected as proof of cause, it cannot be used again to rebut the presumption of work-relatedness. It has been rejected. The employer’s contention that “any evidence” of heart attack successfully rebuts the presumption of work-relatedness has not only never been sanctioned by this court, but it has no basis in logic.

Decided February 8, 1988

Rehearing denied March 29, 1988

Susan V. Sommers, Sandra G. Chase, for appellant.

Clarence R. Horne, Jr., for appellee.

Motion for rehearing is denied.


text:
    75107.
    WILLIAMSON v. THE STATE.
    (367 SE2d 863)
   McMurray, Presiding Judge.

Defendant was indicted for the offenses of rape and two counts of aggravated sodomy. The jury returned a verdict of guilty of rape and guilty of two counts of simple battery. Defendant appeals. Held:

1. The State’s evidence shows that the victim got off work at 1:00 p.m. and traveled on the “MARTA” train to the downtown Five Points Station. During the course of this journey the victim met an individual who introduced himself as Tony Johns. Tony Johns persuaded the victim to accompany him to an apartment near the “West Lake MARTA” station. At the apartment the defendant answered the door and the three sat down at the dining room table. Thereafter, Tony Johns stated to the victim that he wanted to discuss something with her privately in the back of the apartment. The victim voluntarily accompanied Tony Johns to a bedroom. When the victim attempted to leave Tony Johns pushed her down on the bed. Tony Johns called the defendant into the bedroom and told defendant to look through the victim’s purse and jacket for weapons, and to take any money that she had. Tony Johns then told defendant to go get them something to drink. While defendant was gone Tony Johns forcibly removed the victim’s pants, threatened her with a knife and had her remove the remainder of her clothes. Subsequently, Tony Johns, defendant and two other males had various sexual contacts with the victim.

Defendant’s first enumeration of error raises the sufficiency of the evidence of rape. Force is an essential element of rape. Henning v. State, 153 Ga. App. 465 (265 SE2d 372). Defendant argues that there is no evidence of the use of force by defendant, or any evidence that he had knowledge of any use of force.

Contrary to defendant’s assertion, the victim testified as to pleading with defendant to release her, that defendant refused to do so and continued having vaginal intercourse with her. We find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of defendant’s guilt beyond a reasonable doubt of the offense of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, it was not error to deny defendant’s motion for directed verdict of acquittal as to the offense of rape. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

2. Outside the presence of the jury, an Atlanta police detective testified that defendant was chosen by the victim from a photographic lineup. The officer identified a State’s exhibit as the photographic lineup from which the victim had identified the defendant. On cross-examination it was established that the photograph of defendant in the State’s exhibit had been taken after the time of the photographic lineup. The officer then stated that the exhibit did not contain the correct photograph. The State withdrew the exhibit and the trial court ruled that no evidence in regard to or reference to the photographic lineup would be presented before the jury. Defendant contends the trial court’s ruling prohibiting reference to the photographic lineup impermissibly curtailed his cross-examination of the witness.

“(OCGA § 24-9-64 (Code Ann. § 38-1705) provides in part: ‘The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him. . . .’ The U. S. Supreme Court has argued that great latitude be allowed in cross-examination because it is ‘one of the safeguards essential to a fair trial.’ Alford v. United States, 282 U. S. 687, 692 (51 SC 218, 75 LE 624). However, the scope of cross-examination is not unlimited. ‘The extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretionary authority is abused. (Cits.) The extent of cross-examination can be curtailed if the inquiry is not relevant nor material. (Cits.)’ Geiger v. State, 129 Ga. App. 488, 496 (199 SE2d 861).” Harris v. State, 168 Ga. App. 159, 160 (2) (308 SE2d 406). In the case sub judice, the trial court acted appropriately and within the court’s discretion in limiting cross-examination. See also Samuels v. State, 174 Ga. App. 684, 685 (2) (331 SE2d 62).

3. The State introduced a statement of defendant made shortly after his arrest. The defendant testified and was thoroughly cross-examined. Relying on Cuzzort v. State, 254 Ga. 745 (334 SE2d 661), defendant requested the charge: “A prior consistent out-of-court statement of a witness is substantive evidence of the matter asserted.” Defendant enumerates as error the trial court’s refusal to give the requested charge.

While the requested charge may be a correct statement of law, its inclusion in the charge given the jury was not required because the substance of the requested charge was adequately covered in the charge given. Amerson v. State, 177 Ga. App. 97, 100 (4) (338 SE2d 528).

4. Finally, defendant contends the trial court erred in charging the jury: “If the actual sexual intercourse took place or occurred in a continuing state of circumstances involving force or threats of bodily harm sufficient to create force and the male actually had intercourse with the female in that set of circumstances and he as a reasonable person knew of this ongoing situation and as an or as a reasonable person should have known of the ongoing situation and the force or threats of force involved he would be chargeable with the use of force.” This language is a portion of a charge given in response to inquiries by the jury. Defendant contends the State was thereby relieved of its absolute burden of persuasion as to the essential element of force.

In considering this enumeration concerning the quoted portion of the trial court’s charge we set forth that portion of the trial court’s charge immediately preceding the portion quoted by defendant. The court charged: “Now, force is a necessary element of the crime of rape. Force may be exercised or brought into play either by actual physical contact or physical hurt or physical harm or some other form of physical violence. Force may also be brought into play or created by the use of threats of serious bodily harm which are sufficient to overpower the will of the female and cause her to yield because of her fear of serious bodily harm or threats. Now, any consent or yielding by a female which is brought about by force or by fear of serious bodily injury or harm would not be that consent which would prevent the intercourse from being rape. Now, the court further instructs you if at the time an alleged perpetrator of rape, or stated a little differently, if at the time the male involved had knowledge of force which was brought into existence against the female, if the male involved in the actual alleged rape had knowledge of force prior to the actual contact having been brought into play or having been exerted upon the female either by actual physical contact or such as to intimidate her and cause her to yield because of fear of harm and the sexual intercourse took place in that situation and the male involved had knowledge of the fact that this force had been exercised upon the female, either actually physically or by threats of harm sufficient to destroy her will or ability to resist, at this time would constitute the crime of rape. In the court’s understanding of the law. [sic.] If the intercourse by the male actually involved occurred at a time when the male had no knowledge whatever of the force and it was not in a set of circumstances that would cause that male as a reasonable person to be aware of the force then in the court’s opinion the male actually involved would not be chargeable with the use of force.”

Decided March 17, 1988

Rehearing denied March 30, 1988

Joe A. Weeks, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, H. Allen Moye, Deborah W. Espy, Assistant District Attorneys, for appellee.

Defendant argues that the complained of charge relieved the State of its absolute burden of persuasion as to the essential element of force.

As previously stated in Division 1, force is an essential element of rape. OCGA § 16-6-1. Henning v. State, 153 Ga. App. 465, supra. The State must prove every element of a criminal offense beyond a reasonable doubt, and is prohibited from utilizing evidentiary presumptions in a jury charge which relieve the State of its burden of persuasion as to each element of a crime. Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39); In the Matter of Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368); Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344); Morissette v. United States 342 U. S. 246 (72 SC 240, 96 LE 288). We do not feel that the portion of the charge at issue in the case sub judice creates a conclusive and mandatory presumption which would relieve the State of the burden of persuasion on the element of force as contended by the defendant. When considering this excerpt, the charge as a whole must be considered. See Hawes v. State, 240 Ga. 327, 333 (8) (240 SE2d 833); Collier v. State, 244 Ga. 553, 562 (4) (261 SE2d 364); Worth v. State, 179 Ga. App. 207, 209 (3), 210 (346 SE2d 82). Consequently, we do not believe that the excerpt from the charge furnishes any cause for a new trial.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75341.
    HARTFORD INSURANCE COMPANY v. HENDERSON & SON, INC.
    (367 SE2d 859)
   McMurray, Presiding Judge.

Plaintiff Henderson & Son, Inc. filed this action on a debt against defendant The In-Store Media Corporation. Defendant The In-Store Media Corporation answered and filed its counterclaim against plaintiff Henderson & Son, Inc. alleging that plaintiff contracted to remove a printing press from its location in Maryland, disassemble the press, load the press onto transportation, transport the press to defendant’s plant in Georgia and then reassemble the press. Defendant’s counterclaim further alleged that plaintiff negligently supervised the loading of the disassembled printing press onto the trucks which were to be used to transport the printing press resulting in the load of one such truck shifting and the truck overturned causing the destruction of a portion of the printing press.

Henderson & Son, Inc. filed a third-party complaint alleging that it had contracted with third-party defendant Lee Way Motor Freight, Inc. to transport the printing press to Georgia and that while the press was in the possession and control of said third-party defendant the damage occurred which is complained of by defendant The In-Store Media Corporation. The third-party complaint of Henderson & Son, Inc. further alleges that third-party defendant Lee Way Motor Freight, Inc. was insured by third-party defendant Transport Indemnity Company and that by reason of contract, indemnity, implied warranty or express warranty or by way of contribution the third-party defendants will be liable over to the third-party plaintiff Henderson & Son, Inc. for all or part of any verdict or judgment rendered against the third-party plaintiff. The third-party defendants’ answer alleged that the truck which overturned was owned and operated by Piedmont, Inc.

Lee Way Freight, Inc. and Transport Indemnity Company filed their fourth-party complaint alleging that they were entitled to recover from fourth-party defendant Piedmont, Inc. and its insuror fourth-party defendant Hartford Insurance Company, for any and all sums that may be recovered against them by the plaintiff or third-party plaintiff.

The fourth-party defendants filed their answer and fourth-party defendant Hartford Insurance Company filed its motion to dismiss for failure to state a cause of action, arguing in support thereof that “OCGA § 46-7-12 (e), Georgia’s limited direct action statute,” which permits under some circumstances the joinder of the motor carrier and the insurance carrier in the same action, does not apply. The state court denied the motion to dismiss of fourth-party defendant Hartford Insurance Company and subsequently this court granted the application of this fourth-party defendant for an interlocutory appeal. Held:

Before the state court, fourth-party plaintiffs Lee Way Motor Freight, Inc. and Transport Indemnity Company argued that their action against fourth-party defendant Hartford Insurance Company was proper because OCGA § 46-7-12 (e) does apply. However, subsequent to the state court’s denial of the motion to dismiss of fourth-party defendant Hartford Insurance Company this court rendered its decision in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351).

Decided March 16, 1988

Rehearing denied March 30, 1988

John P. Reale, Terry R. Howell, John W. Sherrod, for appellant.

Charles V. Gandy, Jr., B. Morris Martin, K. Scott Graham, Edward L. Saveli, W. Gordon Hamlin, Jr., Peter K. Kintz, for appellee.

In light of our decision in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, supra, fourth-party plaintiffs Lee Way Motor Freight, Inc. and Transport Indemnity Company have abandoned their reliance on OCGA § 46-7-12 (e), but now argue that the policy of insurance (issued by fourth-party defendant Hartford Insurance Company to fourth-party defendant Piedmont, Inc.) was issued pursuant to a requirement of regulations of the Interstate Commerce Commission. See 49 USCA § 10927 (3) and 49 CFR 1043.1 (b).

Under the Civil Practice Act, an action should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Jones v. Phillips, 183 Ga. App. 11 (357 SE2d 853); News-Press Pub. Co. v. Kalle, 173 Ga. App. 411, 412 (2) (326 SE2d 582).

The fourth-party complaint alleges that fourth-party defendant Hartford Insurance Company provided fourth-party defendant Piedmont, Inc. with liability insurance for cargo hauled by Piedmont, Inc. and attached the pleadings arising from the main and third-party actions. Nothing in the fourth-party complaint or attached pleadings indicates whether the policy of insurance provided by fourth-party defendant Hartford Insurance Company was filed with and approved by the Interstate Commerce Commission in compliance with 49 USCA § 10927 (a) (3) and 49 CFR 1043.2 (c). Thus, as such may be proven by the fourth-party plaintiffs, rendering a direct action against fourth-party defendant Hartford Insurance Company proper under 49 USCA § 10927 (a) (3). (See J. Aron & Co. v. Svc. Transp. Co., 486 FSupp. 1070, 1076 (11)). The trial court did not err in denying fourth-party defendant Hartford Insurance Company’s motion to dismiss.

Judgment affirmed.

Beasley, J., concurs. Sognier, J., concurs in the judgment only.