text:
    73859.
    CLAYTON et al. v. KELLY et al.
    (357 SE2d 865)
   Birdsong, Chief Judge.

The appellants, parents of a child who they allege was rendered severely retarded as a result of deprivation of sufficient oxygen at or after her birth, sued Coliseum Park Hospital and attending doctors. Summary judgment was granted to Gene M. Kelly, M.D., and Anesthesia Associates of Macon, apparently upon the basis of immunity provided by the Georgia “Good Samaritan” statute, OCGA § 51-1-29. The plaintiffs appeal. Held:

We reverse. Issues of fact remain as to the applicability of the immunity provisions of the Georgia Good Samaritan statute to these appellees.

The evidence adduced, which we shall state generally in favor of the respondents to defendant’s motion for summary judgment for purposes of this decision only, indicates that the appellee Anesthesia Associates of Macon, of whom appellee Kelly is a partner, were the only anesthesiologists who provided anesthesia service at the hospital, as such making up the Anesthesia Department and being subject to the rules, regulations, by-laws, and policies of the hospital, which include the requirement that the Anesthesia Department provide anesthesia coverage for emergency procedures 24 hours a day and be available at any time, in related areas of care, including patient inhalation therapy or cardiopulmonary resuscitation. Dr. Kelly concedes he had a doctor-patient relationship with the plaintiff mother, but denies any such relationship with the newborn child. At 6:00 p.m. on the day of birth, he checked on his group’s patients, including the plaintiff Mrs. Clayton. He helped place her on the delivery table and concerned himself with whether the analgesia was adequate for the plaintiff mother. At the time of delivery he realized the baby was in trouble, and he and the treating obstetrician/gynecologist began to resuscitate her. The conduct of these activities is the alleged cause of the child’s present condition, but is not a matter of dispute in this appeal.

The sole question is whether Dr. Kelly and his group are entitled to immunity under OCGA § 51-1-29, on the basis they assert, which is that they rendered emergency care which was not a normal part or function of their service at the hospital, and that they had no physician/patient relation to the baby.

The code section in force at the time this cause of action arose provides: “Any person, including any person licensed to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43 and including any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.” (Emphasis supplied.)

The appellees contend that because they made no monetary charge for any service rendered to the child, they are per se entitled to the immunity granted by the statute. However, without meaning to imply any negative view, or indeed any view, of the facts in this case, we think it is too plain to debate that this immunity, granted in derogation of common law, was not meant to be conditioned upon the sagacity of a particular physician in not making a monetary charge, after the fact, for a service which, for whatever reason, was not followed by the happy recovery of the patient. To hold otherwise would sanction a construction not possibly intended by the legislature. The expectation of payment is not to be regarded as superficially controlling in a case; it refers mainly to situations distinguishing the true wayside volunteer. If the facts show a duty to respond by virtue of a person’s particular employment, his state of mind as to payment will not thwart that duty. Whatever the specific provisions of a particular good Samaritan statute, certain basic policy considerations are immutable. At common law, although there might have been no duty to render aid to a distressed person, if one undertook to give such aid he assumed the duty to exercise ordinary care; and of course in the case of physicians, he assumed a particular and higher duty. Wallace v. Hall, 145 Ga. App. 610, 611 (244 SE2d 129). This state of affairs could not possibly offer encouragement to anyone to volunteer to help another, but worse, it virtually forbade physicians to offer their superior skill. As Prosser said: “[T]he result of all this is that the good Samaritan who tries to help may find himself mulcted in damages, while the priest and the Levite who pass by on the other side go on their cheerful way rejoicing.” Prosser, Law of Torts, § 56 at 344 (4th ed. 1971). Lee v. Alas. & Johnson, 490 P2d 1206, 1208-1209. The basic premise of these immunity statutes is “to induce voluntary rescue by removing the fear of potential liability which acts as an impediment to such rescue. Thus they are directed at persons who are not under some pre-existing duty to rescue.” Lee v. State of Alas., supra.

If the doctor had a particular employment duty to aid the patient at the hospital or had a pre-existing doctor-patient relationship to the patient he aided, then he had a duty to the patient to begin with; and in such a case he does not need a special inducement to offer aid, the aid he offers is not “voluntary” in the sense of a Good Samaritan, and public policy would be ill-served if he were relieved of the usual physician’s duty of care and given immunity in such a case. Colby v. Schwartz, 144 Cal. Rptr. 624, 628.

Good Samaritan statutes are directed at persons, including physicians, who by chance and on an irregular basis come upon or are called upon to render emergency care. Id. p. 628. The fact that a physician is skilled in the subject matter in question or that the exigency lies within his expertise, does not create a duty where none existed before; in fact such persons are particularly encouraged by the statute to volunteer their aid. Id.; Burciaga v. St. John’s Hosp., 232 Cal. Rptr. 75, 78. Neither is he deprived of immunity by the fact alone that he works at the hospital, or is present at the hospital, or is called to the hospital when the emergency arises. Id. If there was no prior duty to respond and there was no prior doctor-patient relationship, one is not created by the event of the emergency. Higgins v. Detroit Osteopathic Hosp., 398 NW2d 520. But clearly the occurrence of an “emergency” will not invoke the immunity, if it was the doctor’s duty to respond to the emergency. Colby, supra.

It should be obvious from the bare statement of these principles underlying the good Samaritan statute, that questions of fact exist which are not yet disposed of by the voluminous record in this case. Did the appellees’ duties of employment or association at the hospital (particularly the requirement of the hospital rules, regulations and by-laws that they provide anesthesia coverage for emergency procedures 24 hours a day and be available at any time for consultation in related areas of care, including patient inhalation therapy or cardiopulmonary resuscitation), expressly or customarily require their assistance in the resuscitation of a new-born infant? The question is answered by Dr. Kelly’s allusion in his deposition to some usual or general responsibility to “have taken charge of whatever suctioning that was done at that time, in preparation for ventilating the child and later on intubating it”; was the condition of this child upon her arrival, whether emergency or not, within this realm? If it was, Dr. Kelly owed a duty to assist in this case and he was not a “volunteer” entitled to immunity under OCGA § 51-1-29.

Decided May 22, 1987.

Ronald T. Knight, Thomas W. Bennett, for appellants.

Joseph H. Chambless, Mallory C. Atkinson, Jr., Thomas C. James III, Jerome H. Strickland, for appellees.

The fact that he was employed at the hospital, that he was aiding the mother, and had a doctor-patient relationship with her, or that he was in the room, does not require him to respond as a matter of law nor place upon him a duty to aid the child, for this would be to deny that immunity to physicians who, though nearby or at hand, do not have such a duty to begin with but might by chance be called upon or moved to assist, and might discourage any offer to help by the one most skilled in the certain specialty. But at the same time, the Good Samaritan statute immunity is intended to facilitate good medical care by professionals as well as the assistance of wayside travelers; therefore, it is not available to insulate from liability for failure to exercise their duty of care those persons whose express or customary employment duties require them to administer aid. The fact that such factual questions may be hard to answer, does not make it a case to be decided as a matter of law, and does not make it less a jury matter, but rather more.

Judgment reversed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    74123.
    RAMSEY v. THE STATE.
    (357 SE2d 869)
   Pope, Judge.

Defendant William Kenneth Ramsey was indicted and, following a bench trial, convicted of possession of cocaine with intent to distribute. Defendant was also charged with possession of a firearm during the commission of a felony, but was acquitted as to that charge.

Construed most strongly in favor of the verdict, the evidence adduced at trial shows the following: On December 12, 1984 an undercover agent of the Bibb County Sheriff’s department contacted Martin Ursitti, an officer with the Macon-Bibb County drug and vice unit concerning a tip the undercover agent had received from a confidential informant. According to the informant, a white male named Tim Greene, who would be accompanied by a white female, “would be en route to the area of McDonald’s across the river, referring to the east side of town to purchase cocaine from an unknown white male from Atlanta.” The informer gave a description and the tag number of the car Greene would be driving, and stated that Greene would already possess a small amount of cocaine. The informant also stated that the unidentified man from Atlanta might be accompanied by another unidentified white male.

Based on this information, officers of the drug unit located Greene’s vehicle (as identified by the description and tag number) on the street where the informant told them it would be, and also as the informant had said, observed Greene and his female companion (who was later identified as Anita Grinsted) exiting a house located on Winston Drive. They then followed Greene and Grinsted “across the river” to the McDonald’s located on North Avenue, where they observed Greene circle the parking lot and then drive across the street where he made several telephone calls from a pay phone. Approximately 25 minutes later, Greene crossed back over to McDonald’s and parked his car at the far corner of the parking lot. In approximately 5 minutes, a red vehicle entered the McDonald’s parking lot and parked beside Greene. The officers approached the vehicles and asked defendant, who was the driver of the red vehicle, for some identification. Defendant stated he could not find his driver’s license. Greene was searched and approximately a gram of cocaine was recovered. When asked if he had more cocaine in the vehicle, Greene stated he didn’t and that he was there to get more cocaine. After searching Greene’s car and finding no other evidence of contraband, the officers turned their attention to the car defendant was driving, which they ascertained was a rental car. The officers found a small amount of marijuana in the glove compartment and a locked briefcase in the back seat of the car. The officers questioned both defendant and his passenger, Anthony Wilbanks, concerning ownership of the briefcase. Both denied ownership, denied having a key to the briefcase, and stated they did not know it was in the car. Defendant stated that he didn’t care what the officers did with the briefcase. The officers then forced open the briefcase; inside they found an Interdynamic Miami, Florida nine millimeter automatic pistol, defendant’s driver’s license, approximately 9 grams of cocaine, a device used to “sift” cocaine, and papers relating to defendant’s work.

1. Defendant contends the trial court erred in denying his motion to suppress because the evidence of contraband was obtained pursuant to an illegal search and seizure. We disagree. The record clearly supports the conclusion that defendant denied any ownership interest in the briefcase, from which the contraband was obtained. (The record shows the defendant was not charged with any crime as to the small amount of marijuana obtained from the glove compartment.) “ ‘(T)he constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned.’ [Cit.] In order to determine whether property has been abandoned, we must ask: Did the complaining party retain a legitimate expectation of privacy in the article allegedly abandoned? [Cit.]” Williams v. State, 171 Ga. App. 546, 547 (320 SE2d 398) (1984); see also State v. Howell, 180 Ga. App. 449 (349 SE2d 476) (1986). In the case at bar, it is clear to us that defendant, who denied knowing the briefcase was in the car and stated he did not own it, retained no reasonable expectation of privacy in the property seized.

Moreover, the record also indicates that defendant affirmatively consented to the search by stating to the officers that he did not care what they did with the briefcase. “Probable cause and a warrant are not required for a search and seizure conducted pursuant to consent.” Crews v. State, 170 Ga. App. 104 (316 SE2d 549) (1984). Accordingly, this enumeration is without merit.

2. Defendant also contends that the four-month delay in the appointment of counsel to replace defendant’s former attorney, whom defendant voluntarily dismissed, denied him assistance of counsel “during a critical time of the criminal justice process.” Again, however, the record does not support defendant’s contention.

The indictment was returned against defendant on March 7, 1985. A bench warrant was issued for defendant’s arrest following his failure to appear at trial on April 22, 1985. Defendant resurfaced on December 30, 1985, at which time he was incarcerated in the Monroe County Jail in Forsyth, Georgia on federal criminal charges. Defendant was returned to Bibb County on January 15, 1986 for arraignment. Defendant’s present counsel filed an entry of appearance on March 19, 1986. Defendant was tried on June 18 and 19, 1986.

“ ‘The [defendant’s] right to counsel includes the benefit of counsel at all the critical stages of the case and sufficiently prior to the trial for adequate preparation.’ [Cit.] A review of the record reveals that [defendant’s] counsel was appointed approximately three months prior to trial and was present at all ‘critical stages’ of the case. We consider this to be a sufficient time for adequate preparation of [defendant’s] defense. Therefore, this enumeration is without merit.” Hayes v. State, 168 Ga. App. 710, 711 (309 SE2d 843) (1983).

3. Defendant also asserts that the trial court erred in denying his motion for acquittal based on his demand for speedy trial. “OCGA § 17-7-170 is absolutely clear as to when an accused may of right make a demand for trial thereunder — at the term at which the indictment is found or at the next succeeding regular court term. After that time, such a demand can only be made by special permission of the trial court. . . . [T]he burden is on an accused to protect his statutory right to a speedy trial by making a timely demand for trial under OCGA § 17-7-170.” Hubbard v. State, 176 Ga. App. 622, 624-25 (337 SE2d 60) (1985).

Decided May 22, 1987

Philip C. Davis, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.

Defendant was indicted on March 7, 1985; he filed his demand for speedy trial approximately one year later on March 19, 1986; defendant did not obtain the trial court’s permission to file this admittedly out-of-time demand. Moreover, during much of this intervening period, defendant absented himself from the jurisdiction of the trial court, and could not have been tried speedily or otherwise. Under these circumstances, the trial court clearly did not err in denying defendant’s motion for acquittal pursuant to OCGA § 17-7-170.

4. Lastly, defendant also enumerates as error the trial court’s denial of his motion for new trial. However, because defendant has failed to support this enumeration by either argument or citation of authority, we deem it abandoned pursuant to Rule 15 (c) of this court. Kuptz v. State, 179 Ga. App. 150 (12) (345 SE2d 670) (1986).

Judgment affirmed.

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


author: Benham, Judge.

text:
    74136.
    WILLIAMS v. THOMAS.
    (357 SE2d 872)
   Benham, Judge.

Appellant was injured in an automobile collision on November 17, 1983. He filed suit against the other driver, Thomas, on October 25, 1985, and perfected service on Thomas by publication. By means of a second original summons, appellant caused service to be made on his uninsured motorist carrier, appellee Fireman’s Fund Insurance Company of Georgia, on December 18, 1985, more than a month after the expiration of the two-year period of limitation. Fireman’s Fund answered in its own name and filed a motion for summary judgment on the grounds of statute of limitation and laches. This appeal is from the order granting that motion.

1. Appellee’s motion to dismiss this appeal as premature because the order did not include the finality language of OCGA § 9-11-54 (b) is without merit. OCGA § 9-11-56 (h) gives a losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final under OCGA § 5-6-34 or § 9-11-54 (b). Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641) (1978).

Decided May 22, 1987.

Irwin M. Ellerin, for appellant.

Terence A. Martin, for appellee.

2. In his two enumerations of error, appellant complains that the trial court erred in finding no issue of fact regarding appellee’s receipt of notice of a potential claim and in finding no issue of fact regarding harm or prejudice to appellee. However, the issue here is neither notice nor harm, but timeliness of service. In Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976), the Supreme Court held that an uninsured motorist carrier is entitled to service within the time allowed for service on the defendant in the tort action. This court has since applied that holding to affirm summary judgments granted to insurers on whom service was not made within the period of limitation. See, e.g., Harris v. Allstate Ins. Co., 179 Ga. App. 343 (347 SE2d 368) (1986); Kemp v. Cotton States Mut. Ins. Co., 177 Ga. App. 460 (340 SE2d 26) (1986). It being undisputed that service on appellee was untimely, the grant of summary judgment to appellee was correct.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    74140.
    NOLAN v. THE STATE.
    (357 SE2d 873)
   Sognier, Judge.

Appellant was convicted of incest, statutory rape and aggravated child molestation, and he appeals.

1. Appellant contends the trial court erred by admitting testimony from the victim that appellant shot the victim’s brother in the foot with a BB gun, and on another occasion hung the victim’s brother upside down on a bedpost by his shirt. At a hearing on possible evidentiary problems prior to presentation of evidence on the merits, the State informed the court that it proposed to introduce such evidence relating to the victim’s brother through the testimony of the victim, who had observed these incidents. Appellant objected at the hearing to the introduction of such evidence, and the court stated that if it was in the presence of the victim, “other things being proper for its admission,” the court would allow the testimony. However, the court stated that it could not rule finally (at the hearing) that such testimony would be admitted, but would have to take it one step at a time, i.e., wait to see how the evidence developed during trial before ruling on the admissibility of the testimony relating to actions by appellant against the victim’s brother. When the victim testified about the incidents involving her brother, appellant made no objection to such testimony. Since the court made no final ruling on appellant’s objection at the hearing, and he did not renew his objection when the testimony was offered during trial on the merits, there is nothing for us to review. See Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985).

2. Appellant contends the trial court erred by allowing evidence of similar offenses committed upon the victim by appellant because the State failed to comply with Rules 31.1 and 31.3 of the Uniform Superior Court Rules. See 253 Ga. 853-854. Specifically, appellant contends that the State’s notice of its intention to present evidence of similar offenses did not include the dates and name of the county where the similar offenses occurred, as required by Rule 31.3 (B). Thus, appellant argues that the evidence of similar transactions was inadmissible. We do not agree.

The notice in this case, filed thirteen days prior to trial, informed appellant that the State intended to introduce evidence which would include numerous instances of child molestation committed by appellant upon the victim, including acts of intercourse and sodomy routinely over a period of years from the time the victim was five years old until she was twelve years old. The notice also stated that all dates could not be pinpointed with accuracy, but would show a pattern of molestation over a period of seven years.

Since the victim was appellant’s adopted stepdaughter who had lived in the same trailer with appellant since she was four years old, appellant had personal knowledge of the county or counties where the similar offenses occurred. Stewart v. State, 180 Ga. App. 266 (2) (349 SE2d 18) (1986). The transcript discloses that while the victim could not give specific dates, she testified that the first incident occurred on the first day she attended kindergarten, and occurred several times each week thereafter until she was twelve years old. Therefore, the State did not have specific dates in its possession. However, by revealing to appellant all of the information that the State had in its possession, the State complied with Rule 31.3. Eidson v. State, 182 Ga. App. 321 (2) (355 SE2d 691) (1987).

Although not included in his enumerations of error, appellant contends the hearing held by the court was not in compliance with Rule 31.2 because it was not held prior to the time the case was scheduled for trial. Rule 31.2, Uniform Superior Court Rules, supra, provides that notices such as those under discussion here shall be heard and considered “at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.” 253 Ga. 853-854. We find nothing in this Rule which requires the judge to hold a hearing prior to the date scheduled for trial, particularly in view of the provision that any hearing will be held at a time, date and place set by the judge. The hearing here was held prior to any presentation of evidence, and outside the presence of the jury. Under such circumstances, we find no error in holding the hearing on the date of trial.

Decided May 22, 1987.

J. Richardson Brannon, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Chandelle Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Division 1 and in the judgment.


text:
    74150.
    COASTAL SUPPLY COMPANY, INC. v. WHITE.
    (357 SE2d 875)
   Pope, Judge.

Plaintiff Coastal Supply Company, Inc. brought suit against defendant Johnny White on an open account and note. The jury returned a verdict for plaintiff as to the amount owed on the note and for defendant on the account. Plaintiff’s sole enumeration of error on appeal concerns the trial court’s denial of its motion for directed verdict as to its claim on the open account.

“ ‘A motion for directed verdict is to be granted only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. OCGA § 9-11-50 (a); Mercer v. Woodard, 166 Ga. App. 119, 127 (13) (303 SE2d 475) [(1983)].’ Doyle v. Estes Heating &c., 173 Ga. App. 491, 493-494 (3) (326 SE2d 846) [(1986)].” Smith v. Allen, 180 Ga. App. 624, 625 (349 SE2d 548) (1986). “ ‘In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the “any evidence” test. (Cits.)’ [Cit.]” Nichols v. Purvis, 178 Ga. App. 826, 827 (344 SE2d 692) (1986).

The record shows the trial court allowed plaintiff’s manager, based on his personal knowledge of plaintiff’s accounts, to testify from a summary of the amounts defendant allegedly owed on the open account, but did not allow the summary to be admitted into evidence. Defendant testified, in essence, that he could not determine what amounts, if any, he owed to plaintiff without reviewing each and every invoice, based on his belief that he had been overcharged for many items, that he had been denied credit for certain items allegedly paid, and that he had been charged for items he had not received.

Plaintiff argues that defendant’s testimony was vague and contradictory and therefore should have been construed against defendant on plaintiffs motion for a directed verdict. See Johnson v. Curenton, 127 Ga. App. 687 (195 SE2d 279) (1972). We have reviewed defendant’s testimony and disagree that it was vague and contradictory as plaintiff contends. Rather, we believe defendant has consistently disputed his indebtedness to plaintiff on the open account and thus the evidence of plaintiff’s indebtedness, if any, was in conflict. Thus, we believe the amount of indebtedness, if any, was for the jury’s determination and the trial court did not err in denying plaintiff’s motion for a directed verdict. Kirk v. Barnes, 147 Ga. App. 423 (249 SE2d 140) (1978); Ross v. Yancey Bros. Co., 141 Ga. App. 452 (233 SE2d 847) (1977). Moreover, we will not on appeal disturb the jury’s determination when there is evidence to support the verdict. Sikes v. Folsom Constr. Co., 151 Ga. App. 630 (1) (260 SE2d 755) (1979).

Decided May 22, 1987.

Malcolm F. Bryant, Jr., for appellant.

Charles W. Cook, for appellee.

Judgment affirmed.

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


text:
    74203.
    MILLER v. THE STATE.
    (357 SE2d 876)
   Pope, Judge.

On February 6, 1986 appellant was observed by Agent R. F. Jordan, a GBI agent assigned to the Drug Enforcement Administration Airport Task Force at Atlanta-Hartsfield International Airport, when he exited from a flight from Fort Lauderdale, Florida. Based on the drug courier profile, Jordan’s attention was attracted to appellant due to his disheveled appearance and because he was wearing a heavy coat in the warm airport, was carrying only a small tote bag and had no checked baggage, avoided making eye contact with other people although he spoke to the airline agent, and was continually looking around in a nervous manner. When appellant went to another gate to await his connecting flight, Jordan ascertained that appellant had a one-way cash ticket purchased the night before under the name Marvin Doe, and that the listed reservation call-back number did not receive incoming telephone calls. Jordan approached appellant, identified himself as a police officer and asked to talk to him. When appellant agreed Jordan asked to see his airline ticket, which appellant handed him, and verified the reservation information previously obtained. Appellant identified himself as Marvin Doe when asked his name, but had no identification with him to show that this was in fact his name.

Decided May 22, 1987.

Robert L. Ferguson, for appellant.

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

Jordan then told appellant that he and another officer who was seated behind appellant were looking for drugs coming through the airport and would appreciate his cooperation by allowing them to search his bag and person. Appellant seemed very nervous, but agreed and opted to go to a private room for the search. Once there his consent to search rights were read to him and he stated upon being asked that he understood them and to “go ahead and search.” Appellant’s bag was searched but no contraband was found. However, during a pat down search a package was found taped to his back containing a white powdery substance. When asked what was in the package, appellant first responded, “It’s coke,” but then said it was “his coat.” The officers confiscated the package, which was subsequently tested and found to contain 223 grams of cocaine and another substance with a purity of 87% cocaine; appellant was arrested, tried and convicted of trafficking in cocaine and giving a false name to a police officer. On appeal he asserts that his motion to suppress evidence of the contraband found on his person was improperly denied because his consent to the search was obtained by means of coercion. Held:

We do not agree. “The facts disclose a valid police-citizen encounter followed by [appellant’s] consent to the officer’s examination of [his person and tote bag.] [Cits.] Thus, the appeal presents only a question of fact as to whether there was a valid consent to search. This was a matter exclusively within the province of the factfinder, the trial court. [Cit.] After a full exposure of the facts, the trial court found consent for the search of [appellant’s person]. That finding must be accepted by this court unless clearly erroneous. [Cit.] We find competent and sufficient evidence to support the trial court’s conclusion of voluntariness. A search with consent legally obtained continues throughout the duration of the search unless revoked. [Cit.] There is no evidence that [appellant] ever denied the officers permission to [search] after first giving them such permission. There was no error by the trial court in its denial of the motion to suppress.” Conley v. State, 180 Ga. App. 662, 663-64 (350 SE2d 45) (1986). See also Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986); Del Rio v. State, 171 Ga. App. 381 (3) (320 SE2d 236) (1984).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    74539.
    RAY v. THE STATE.
    (357 SE2d 877)
   Deen, Presiding Judge.

Appellant Ray was convicted by a Tift County jury on four counts of child molestation. He received four concurrent 15-year sentences (5 to serve, with the balance on probation) and was ordered to undergo psychological counseling and treatment both during and after his incarceration. He appeals from this judgment, enumerating as error the trial court’s denial of his motion for new trial, which he had based on the general grounds and the alleged ineffective assistance of counsel. Specifically, he alleges that counsel called no witnesses for the trial and presented no evidence on his behalf. Held:

In Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the United States Supreme Court set forth a two-pronged test: in order to establish ineffective assistance of counsel, an appellant must show (1) that his attorney’s performance was deficient, and (2) that this deficient performance actually prejudiced the defense. See Cook v. State, 255 Ga. 565 (340 SE2d 891) (1986). The test is in the conjunctive: “[t]he complaining defendant must make both showings. His failure ‘to establish either the [deficient] performance or the prejudice component results in denial of his Sixth Amendment claim.’ King v. Strickland, 748 F2d 1462, 1463 (11th Cir. 1984).” Ford v. State, 255 Ga. 81, 85 (335 SE2d 567) (1985). In Strickland the Supreme Court approved the standard enunciated in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974); that is, “reasonably effective assistance.” “Thus, counsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment. The reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. [Cit.] The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985).

In the instant case the trial transcript reveals that appellant’s counsel made timely and pertinent objections during the state’s examination of witnesses; conducted a thorough and sifting cross-examination of each witness; and moved for a directed verdict of acquittal at the close of the state’s evidence, supporting his motion with appropriate argument. We are thus persuaded that counsel’s conduct was well within “the broad range of reasonable professional conduct.” Id. When his attorney’s performance is viewed in the light of the totality of the circumstances, appellant did not demonstrate deficient performance; he therefore failed to satisfy the first prong of the Strickland test.

Decided May 22, 1987.

John R. Reinhardt, for appellant.

David E. Perry, District Attorney, for appellee.

As to the second prong of the test, “the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors.” Id. Given the graphic testimony of the young victims and the strongly corroborative testimony of the mother of one of them, it is difficult for us to conclude that the outcome of the trial would have been different had the defense presented the self-serving testimony of defendant, his grandmother, and his neighbor — none of whom did more than make a patent attempt to improvise an alibi without offering any plausible explanation of why they happened to remember appellant’s being in their presence at the crucial times and places. A conscientious and properly instructed jury would have been hard put to find such testimony credible and to come to a different conclusion regarding the defendant’s guilt or innocence.

We find appellant’s allegations of ineffective assistance to be without merit.

Judgment affirmed.

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


text:
    74612.
    FRANKLIN v. THE STATE.
    (357 SE2d 879)
   Deen, Presiding Judge.

William F. Franklin was convicted of aggravated battery and the attempted armed robbery of a convenience store. The evidence showed that appellant’s co-defendant pulled a pistol on the clerk while the men were at the check-out counter, that he shot her in the face, and that she fell to the floor with a bullet lodged in her jaw. Appellant then fled from the store on foot. The co-defendant then turned the gun on another clerk and demanded money. When she did not respond, he bolted from the store, got into his car, and drove off, striking a metal guard post as he left the parking lot. Appellant went to the home of a friend and spent the night there. Witnesses saw a handgun in his rear pants pocket. The following day another friend talked him into going to the sheriff’s office to talk with investigators. He went, but left before he could talk to officers. He claimed that he left because he was afraid he would be arrested for being intoxicated.

Decided May 22, 1987.

William J. Robinson, Jr., for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

1. In his first enumeration of error, Franklin contends that the court erred in its charge on voluntary intoxication and in failing to give his requests to charge on voluntary intoxication and insanity resulting from excessive continued use of alcohol.

Appellant’s trial strategy consisted of putting up friends to testify that he was a non-violent town drunk. This testimony is insufficient to raise a defense of insanity resulting from excessive continued use of alcohol. The trial testimony indicated that he conducted himself in an appropriate manner in the store shortly before the shooting and that the only characteristic which might be associated with intoxication was his bloodshot eyes. His actions indicated that he was alert and sufficiently fleet of foot to know that a crime had been committed when he fled from the scene of the crime and went to a friend’s house.

Chronic intoxication does not constitute involuntary intoxication within the meaning of OCGA § 16-3-4 and thus provide a defense to a criminal act. McLaughlin v. State, 236 Ga. 577 (224 SE2d 412) (1976). The trial court’s instruction that “voluntary intoxication shall not be an excuse for any criminal act” is in accordance with the provisions of OCGA § 16-3-4 (c) and is sufficient. The trial court was not required to charge that he should be acquitted if he was intoxicated to the point where he could not form the requisite intent for the crimes of attempted armed robbery and aggravated battery. Houck v. State, 173 Ga. App. 388 (326 SE2d 567) (1985).

2. Construing the jury verdict in favor of the prosecution, we find that there was sufficient evidence for a rational trier of fact to find the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    73829.
    DEVANE v. THE STATE.
    (357 SE2d 819)
   Beasley, Judge.

Defendant appeals his convictions on an indictment for burglary (OCGA § 16-7-1), rape (OCGA § 16-6-1) and aggravated sodomy (OCGA § 16-6-2).

The evidence revealed that the sleeping victim was surprised by an unseen assailant who blindfolded her, took her into her bedroom and performed numerous sexual acts upon her constituting rape and sodomy. The victim, unable to see her attacker, deliberately sought to ascertain certain physical characteristics. She testified that, among other things, he perspired heavily, had an odor of alcohol, and had a peculiar tuft of hair on his lower back. After the attack and as he was leaving the mobile home, she was able to view him as he walked away; she testified that the attacker’s hair was the same color as defendant’s and was parted on the same side, that he was the same size and build as defendant, and that he was smoking a cigarette.

Although contradicted, evidence was adduced showing defendant did perspire heavily, had a clump of hair on his lower back (she identified two photographs) and smoked the same brand of cigarette as found close to the victim’s mobile home. However, in translating what she had observed of the attacker when she described him to the police, the victim’s estimate of her assailant’s height and weight was 5’ 6” to 5’ 9” and 150 to 170 pounds; defendant’s height was about 5’ 10” and his weight was approximately 20Ó pounds. As to age, she described him as being in his mid-20’s; defendant was 21. The victim also stated to police and at trial that her assailant was wearing a white uniform shirt and trousers, but neither was found among defendant’s belongings.

The state introduced evidence that a butter knife found in the victim’s bedroom beside the bed matched the pattern of a stainless steel set possessed by defendant. The victim’s household did not have any of such a pattern. The state was permitted to establish that defendant, who lived in the same mobile home park and nearby the victim’s home, attempted to burglarize another neighbor’s home two nights later by prying the door open with a butter knife, in a similar fashion as entry to the rape victim’s trailer had been gained. It was also shown that defendant had unlawfully entered a mobile home near his in another park several months before and had stolen a television set and a ring. When arrested a few days after the attempted burglary, defendant admitted both these offenses and thereafter pleaded guilty to them. He denied the instant incident.

1. Although listed as his last enumeration of error, we consider first defendant’s assertion of the insufficiency of the circumstantial evidence as to his identity in that it failed to exclude every reasonable hypothesis except that of his guilt.

Even where circumstantial, “[a]fter the verdict, the testimony is construed in its most favorable light to the prevailing party, ... for every presumption and inference is in favor of the verdict.” Townsend v. State, 127 Ga. App. 797, 800 (1) (195 SE2d 474) (1972). The jury determines whether the facts exclude every reasonable hypothesis save the accused’s guilt. This court will not substitute its judgment for that of the jury except where the verdict is unsupportable as a matter of law. Sellers v. State, 176 Ga. App. 681, 682 (2) (337 SE2d 373) (1985); Richardson v. State, 177 Ga. App. 48, 49 (1) (338 SE2d 506) (1985). The jury was the final arbiter of conflicts in the evidence, including that engendered by conflicting testimony by the state’s witnesses. McNeese v. State, 170 Ga. App. 118, 119 (1) (316 SE2d 564) (1984); Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976).

The circumstantial evidence which was outlined above and detailed in the transcript authorized the jury to find beyond a reasonable doubt that defendant was the perpetrator of the offenses charged and that the essential elements of each of the offenses was present.

2. On the day of the trial the state sought a hearing on its request seeking leave to introduce evidence of other offenses committed by defendant. Defendant’s counsel objected on the basis that he had only learned of the state’s intention the previous Friday. The trial date was Tuesday, May 13.

Two reasons for objection were argued below and are advanced here. 1) The hearing was held without giving defendant adequate time under Uniform Rules for Superior Court 31.2, in that the morning of the trial was too late. 2) The request was neither served upon defendant nor filed with the court at least 10 days before trial as required by URSC 31.1.

The trial court overruled the objection and after a full eviden-tiary hearing found the evidence to be admissible for the jury’s consideration as similar transactions or occurrences, under URSC 31.3. Defendant did not renew the objection.

(a) Were the superior court rules violated and was defendant harmed thereby? The state’s request was signed on January 8 and sought a hearing on January 10. The case was continued and there was no hearing. The state offered testimony that a copy of the request was mailed to defense counsel (see URSC 31.3 (B)), who denied having ever received it. The notice was found in the superior court clerk’s case file but contained no filing date stamp. The clerk explained: “Well, we usually clock them in unless somebody lays it back there on our desk and we just put it in the case and then it is not filed.”

The record contains an order dated January 10 setting out: “The District Attorney has complied with Rule 31.3 of Uniform Rules for Superior Court by giving notice that he intends to introduce evidence of burglaries which happened before and after the date of the charged offense. The conversations are hereby approved. So ordered this 10th day of January, 1986.” It bears no filing date.

Defendant’s counsel stated that he went by the district attorney’s office on Friday afternoon before the trial, requested and received a copy of the notice but no exhibits were attached since the district attorney had the case file.

Despite denial of receipt, required service was accomplished as a matter of law. OCGA § 17-1-1 deals with filing and service of pleadings, motions and notices subsequent to the indictment and provides in subsection (b): “service shall be made upon the party’s attorney ... by delivering a copy to him or mailing it to him at his last known address . . . [S]ervice by mail shall be deemed complete upon mailing.” Cf. Henson v. State, 168 Ga. App. 210 (1) (308 SE2d 555) (1983).

A more serious issue exists as to filing with the clerk. See OCGA § 17-1-1 (c). There is proof that the clerk had the document but no inkling of when the request was delivered to her. There was no evidence of any contemporaneous delivery to the clerk at the time the request was mailed. Filing either before or immediately thereafter is also a requirement of OCGA § 17-1-1 (a). Therefore, it cannot be assumed that filing was accomplished “at least ten days prior to trial.” URSC 31.1. We do not countenance the failure of timely filing, but in view of the policy expressed by the clerk it could have been timely delivered but not filed by neglect of the clerk.

This Court has adopted as its primary consideration whether defendant was deprived of any substantial rights under the circumstances. Stewart v. State, 180 Ga. App. 266, 267 (349 SE2d 18) (1986). See Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1986), where we approved the trial court’s determination and noted “that the apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.” The purpose of the length of the advance notice is to allow defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses, which purpose was served here by the re-cency of the pleas and the same counsel’s participation. Nothing would have been accomplished in these circumstances by delaying the trial.

Here defense counsel was fully aware of defendant’s prior offenses, having actually represented him at the plea entered at a previous term of the same court. Although defendant denied actual notice, service was lawfully accomplished, but for the clerk’s filing, in a timely manner. Four months passed between the time of that service and the hearing. Actual notice indisputably was had four days before trial. The trial court has a degree of discretion both as to the time of notice and the time of the hearing. URSC 31.1 and 31.2. See Hall v. State, 181 Ga. App. 92, 93 (1) (351 SE2d 236) (1986).

Considering all the factors in this case, plus the burden on defendant as appellant to establish not only error but harmful error, Stewart v. State, supra, we find no basis for reversal of defendant’s convictions on these grounds. See also Richardson v. State, 182 Ga. App. 661 (356 SE2d 725) (1987).

(b) Defendant assigns error to the admission of the evidence of other offenses on the basis that the evidence was unrelated to the offenses for which he was being tried and impermissibly placed his character in evidence.

While evidence of character is generally inadmissible, “if ‘the evidence is substantially relevant for some other purpose than to show a probability that [the defendant] committed the crime on trial because he is a man of criminal character,’ McCormick on Evidence, § 190 at 447 (2d ed. 1972), it is admissible even if it incidentally puts the defendant’s character in issue.” Walraven v. State, 250 Ga. 401, 407 (4) (b) (297 SE2d 278) (1982). The requisites to the admissibility of evidence of independent crimes are: proof that the defendant was in fact the perpetrator of the separate and distinct offense (which includes those occurring subsequent to the offense being tried, Harriman v. State, 170 Ga. App. 715, 716 (2) (318 SE2d 182) (1984)); sufficient similarity or connection between the independent crime and the offense charged; relevancy to a material issue, or in other words, the concept that “proof of the former tends to prove the latter.” French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976). “[Testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct.” Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977).

Here the evidence showed that defendant did commit the other two offenses, burglary and attempted burglary. Both offenses were of the same mode as the one here, i.e., entering, or attempting to enter trailers in close proximity to defendant’s residence, by the same method and for the purpose of committing crime. The attempted burglary was especially close in time (two days). Although the other offenses involved theft of property and the present offenses were rape and sodomy, the question is whether there was sufficient similarity or connection. We agree that there was. See Bernyk v. State, 182 Ga. App. 329 (355 SE2d 753) (1987) and the dissent.

There must be a relevant purpose. Walraven v. State, supra, p. 408. The issue of identity of the rapist was crucial and the other offenses were admissible as tending to prove it. Moreover, they cast light on a plan or scheme. We note also that defendant acquiesced in the trial court’s instructions in this regard.

Decided May 6, 1987

Rehearing denied May 26, 1987

John M. Vansant, Jr., for appellant.

Hobart M. Hind, District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.

There was no error in permitting the evidence to be evaluated by the jury.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    73858.
    CINCINNATI INSURANCE COMPANY v. TIRE MASTER OF THOMASTON, INC.
    (357 SE2d 812)
   Banke, Presiding Judge.

The appellee, Tire Master of Thomaston, Inc., brought this action against the appellant, its motor vehicle insurance carrier, seeking reimbursement for the alleged theft of an automobile. The insurer denied the claim, contending that the automobile had not been stolen but had instead been repossessed. This appeal is from the trial court’s grant of partial summary judgment to Tire Master on the issue of whether the loss was covered by the theft provisions of the policy.

The salient facts are not in dispute. The automobile, a 1984 Mercedes, was owned by Sunbelt, Ltd., a Florida car dealer which, while retaining title to the vehicle, had placed it in the possession of Mercedes Exchange, Inc., an Atlanta used-car dealer, for sale on consignment. Tire Master’s president, Scott Blackstock, had then purchased the car from Mercedes Exchange on behalf of Tire Master for $24,000, with the understanding that he would be forwarded the completed title documents within a few weeks. Although the entire purchase price was paid to Mercedes Exchange by Tire Master at the time of the purchase, none of this money was ever forwarded to Sunbelt, Ltd. Consequently, upon learning about the transaction and determining the whereabouts of the vehicle, Sunbelt arranged for its repossession. The car was taken from a parking place near a business establishment operated by Blackstock’s wife in Monroe County, Georgia, without her permission or knowledge, and was then delivered to Sunbelt.

Prior to the repossession, Blackstock had been apprised both of Sunbelt’s interest in the automobile and of the fact that Sunbelt had not been paid for that interest. Indeed, upon discovering that the car was missing, Blackstock immediately telephoned both Sunbelt, Ltd., and Mercedes Exchange, Inc., in a vain attempt to discover its whereabouts, while simultaneously reporting to local police authorities and to his insurance agent that the car had been stolen.

In addition to granting partial summary judgment to Tire Master on the issue of whether the loss was covered by the theft provisions of the policy, the trial court denied a motion for summary judgment filed by the appellant insurer. Although both Sunbelt, Ltd., and Mercedes Exchange, Inc., were joined by the insurer as third-party defendants, neither is a party to this appeal. Held•

The appellant insurer contends that the evidence establishes without dispute that the taking was effected under a claim of right, with the result that it cannot be considered a theft. As support for this contention, the appellant relies upon South Car. Ins. Co. v. Jackson, 103 Ga. App. 3 (117 SE2d 878) (1961), involving a factually similar suit against an insurer to recover for the alleged theft of a motorcycle which had been repossessed. There, the person who had repossessed the vehicle had chained it to a tree in plain view in his own front yard less than a block away from the point of the taking. Under such circumstances, this court held that the taking could not be considered the product of criminal intent and that the insurer consequently could not be required to reimburse the insured for it under the theft provisions of the policy. The appellee, on the other hand, relies on the subsequent case of Hartford Fire Ins. Co. v. Lewis, 112 Ga. App. 1 (143 SE2d 556) (1965), wherein a contrary result was reached based upon the perceived factual distinction that the repossession had been effected clandestinely rather than openly. Upon further consideration, we are not convinced that the degree of stealth used in effecting a repossession is, as suggested in Lewis, dispositive of the issue of whether the taking was effected under an honest claim of right.

“Automobile theft insurance is universally viewed as furnishing protection only against losses arising from criminal takings of the insured vehicle. Consequently, it is held that there can be no recovery under such a policy for a loss asserted to amount to a theft in the absence of proof of the existence of a felonious intent on the part of the taker.” Annot: “What Amounts to Theft, Robbery or Pilferage Within Automobile Theft Policy,” 48 ALR2d 8, § 9, p. 21. See Executive Auto Leasing v. Guaranty Nat. Ins. Co., 170 Ga. App. 860, 861 (318 SE2d 733) (1984). One who takes under a fair claim of right does not commit larceny or theft. See generally OCGA § 16-8-10 (2); Lee v. State, 102 Ga. 221, (29 SE 264) (1897); Walker v. State, 86 Ga. App. 875 (3) (72 SE2d 774) (1952).

The evidence in the present case establishes without dispute that the insured’s automobile was taken by the actual holder of the title thereto under a bona fide claim of right. Under such circumstances, regardless of whether the taking occurred openly or surreptitiously and regardless of whether the appellee is ultimately adjudged to be entitled to damages as a result of it, it clearly cannot be considered compensable as a theft under the terms of the insurance policy issued to the appellee by the appellant. Accordingly, we hold that the trial court erred in granting summary judgment to the appellee and in denying summary judgment to the appellant on this issue. To the extent that a contrary holding would otherwise be required by Hartford Fire Ins. Co. v. Lewis, supra, that decision is hereby overruled.

Decided April 29, 1987

Rehearing denied May 26, 1987

John C. Parker, Task J. Van Dora, for appellant.

William H. Major, Neal H. Ray, for appellee.

Judgment reversed.

Birdsong, C. J., Been, P. J., Carley, Sognier, Pope, Benham, and Beasley, JJ., concur. McMurray, P. J., disqualified.


text:
    73941.
    GEORGIA INSURERS INSOLVENCY POOL v. MOORE et al.
    (357 SE2d 823)
   Sognier, Judge.

This is the second application for interlocutory appeal made by the Georgia Insurers Insolvency Pool (GIIP) that we have granted. See Georgia Insurers Insolvency Pool v. Moore, 175 Ga. App. 430 (333 SE2d 383) (1985). The trial court denied GUP’s motion for summary judgment on the issue whether the notice given to Delores (Moore) Taggert by the Insurance Commissioner of Georgia, acting as Ancillary Receiver for Reserve Insurance Company (Reserve), sufficiently complied with statutory and court-ordered requirements in order to bar Taggert from participation in the distribution of Reserve’s assets. See id. at 434. We affirm the trial court’s order.

Appellee made a claim on Reserve in 1978 for personal injury protection (PIP) benefits as a result of injuries received by her son in an accident while in a vehicle insured by Reserve. Appellee received $5,000 from Reserve and subsequently allowed the policy to expire. In 1979, Reserve was declared insolvent by a court in its domiciliary state of Illinois. Acting pursuant to OCGA § 33-37-1 et seq., the Fulton County Superior Court appointed the Insurance Commissioner to serve as Ancillary Receiver and ordered him to liquidate the property of Reserve in Georgia. The court then directed the Ancillary Receiver “to notify by mail all persons residing in Georgia known to have claims against Reserve to file their claims with the Ancillary Receiver” on or before the court-ordered deadline. See also OCGA § 33-37-16 (b). The court further directed the Ancillary Receiver to publish in a newspaper of general circulation a notice describing the manner and deadline for filing of all claims. The evidence is uncontro-verted that appellee was never contacted by mail by the Ancillary Receiver and that her letter electing to retroactively purchase $50,000 in PIP benefits from Reserve was received by GIIP some 15 months after the deadline for filing all claims against Reserve.

In Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), the Supreme Court held that under OCGA § 33-34-5, as also interpreted in Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), an insurance policy application form that fails to provide for the signatures required by the statute in order to reject additional optional PIP benefits automatically provides for such benefits from the very inception of the policy. Flewellen, supra at 712 (1), 715 (3). The earliest date a claim for these benefits accrues is the date on which an action on the claim could first be maintained to a successful result, i.e., the date of the accident itself. Bryant v. Allstate Ins. Co., 254 Ga. 328 (326 SE2d 753) (1985). Since such a claim must first be activated by the tendered payment of any additional premium due and the filing of proof of loss by the injured party, Flewellen, supra, we held in Moore, supra, that such a claim is contingent, or “inchoate, imperfect, and unfinished.” Id. at 432. Thus, appellee had a contingent claim for additional PIP benefits viable from the date of the accident which could have been asserted prior to the court-ordered deadline for filing claims against Reserve. Id. at 434. Appellee’s argument that it was impossible for her to comply with the deadline because she was not aware of her right to assert her claim for additional PIP until after the Jones decision was handed down (five and one-half months after the court-ordered deadline) was discounted by the court in Moore, comparing the deadline for filing claims against Reserve to the statute of limitation bar in Georgia Farm Bureau Mut. Ins. Co. v. Musgrove, 254 Ga. 333 (328 SE2d 365) (1985). Moore, supra. The rationale of Musgrove, supra, is that so-called “Jones” claims are based on violations of the legislature’s clear statutory drafting in OCGA § 33-34-5, Flewellen, supra at 713, rather than on any novel interpretation of that statute by the Jones court. Therefore, claimants’ knowledge or lack of knowledge of Jones has no bearing on the viability of the claims which parties “could have discovered ... for themselves prior to the Jones decision.” Musgrove, supra at 335.

The Insurance Commissioner, as Ancillary Receiver, was obligated to notify “all persons who may have claims” against the insurer, Reserve. OCGA § 33-37-16 (b). This required the Commissioner to contact not only those persons “known” to have claims (as per the Fulton County Superior Court order) but also those persons with un-perfected claims who might or might not have asserted those claims against Reserve. See also OCGA § 33-36-8. Although the contingent claims against Reserve predate the opinion in Jones, the rationale of Musgrove, supra, as applied to claimants, is equally applicable to the Insurance Commissioner of Georgia, if not more so, since it cannot reasonably be argued that the Insurance Commissioner of Georgia is less aware of the viability of claims under insurance policies clearly defective as a matter of law than the average Georgia citizen chargeable with such awareness under Musgrove. Hence, the trial court’s denial of summary judgment will be affirmed because of the lack of a showing by movant that statutory and court-ordered notice had been complied with by the Ancillary Receiver.

Decided May 6, 1987

Rehearing denied May 26, 1987

Stanley Thomas Snellings, James T. Budd, Wilbur C. Brooks, for appellant.

William D. Sparks, for appellees.

Since this issue is dispositive of the appeal, we need not address that part of the trial court’s order regarding the newspaper notice published by the Ancillary Receiver in which the trial court apparently, as a matter of law, grafted an “easy and convenient” requirement onto the Fulton County Superior Court’s order.

Judgment affirmed.

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


text:
    74069.
    WORTH v. THE STATE.
    (358 SE2d 251)
   Beasley, Judge.

The defendant was convicted of sodomy, OCGA § 16-6-2, statutory rape, OCGA § 16-6-3, child molestation, OCGA § 16-6-4 (a) and (b) and enticing a child for indecent purposes, OCGA § 16-6-5. He was sentenced to 20 years each for sodomy, statutory rape (into which child molestation merged) and enticing a child for indecent purposes. He appealed after denial of his motion for new trial.

The defendant lived next door to the 9-year-old victim. Although charged for sexual crimes committed on November 1, 1985, the day before the victim reported him, defendant engaged in sexual activity with the victim for over a year, according to her. She also related that defendant served her Cokes laced with liquor, showed her pictures including those of women in various stages of undressing, asked her to pose similarly, and regularly exhibited two pornographic movies. She further testified that defendant gave her money, food and presents and threatened her if she should reveal his activities.

1. At the time of defendant’s arrest his home was searched. Relying upon information furnished by the victim, the officers discovered a cache of sexually related materials: a dildo which the victim testified he used on her, condoms, photographs, motion picture film and magazines.

During the trial defendant objected to the admission of all the enumerated items. On appeal he focuses primarily on the admission of two packages of condoms, some magazines and three photographs.

Where sexual crimes are tried, exhibits having a tendency to show bent of mind towards sexual activity are generally admissible. Felker v. State, 144 Ga. App. 458, 459 (2) (241 SE2d 576) (1978); see Reese v. State, 145 Ga. App. 453 (1) (243 SE2d 650) (1978); Yeck v. State, 174 Ga. App. 710 (2) (331 SE2d 76) (1985). This predicate effectively disposes of any issue regarding the admissibility of the condoms, magazines and one photo of a scantily clad young woman posing provocatively.

A picture of a fully clothed young boy whom defendant said mowed his grass, and one of defendant with his arm around a clothed young woman, remain. Defendant contends they have no relevancy and were submitted solely for their prejudicial effect. As to the photo of the smiling young boy which defendant admits was taken in his house, centered in the background several large liquor bottles are prominently displayed. This tended to corroborate the victim’s assertion that defendant had whiskey available to mix in her Coke.

As to the photo of defendant with his arm around a young woman, it was submitted with several other photos depicting a naked defendant, a naked woman, defendant holding the bare breast of a woman, a woman baring one breast, etc. The victim identified them as photos of defendant’s “nieces,” shown to her because he wanted to take like pictures of her. Beside showing intent, scheme and bent of mind the photos tended to corroborate the victim’s testimony concerning defendant being visited for weeks at a time by his young “nieces” who posed for the pictures, and that defendant importuned her to do likewise. Furthermore, as defense counsel admitted when he objected as to relevancy, the photograph was not prejudicial.

Georgia favors the admission of evidence even where its relevancy or competency is doubtful, when it logically tends to elucidate or throw light upon a material issue. Curtis v. State, 102 Ga. App. 790, 795 (4) (118 SE2d 264) (1960); LaPann v. State, 167 Ga. App. 288, 290 (3) (306 SE2d 373) (1983). “[E]vidence is relevant if it renders the desired inference more probable than it would be without the evidence.” Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980). See Ball v. State, 145 Ga. App. 254 (243 SE2d 672) (1978). Under the broad discretion of the trial court, the admission of the evidence clearly was not error. Tyler v. State, 176 Ga. App. 96, 99 (2) (335 SE2d 691) (1985).

2. Because the victim testified as to many incidents of defendant’s deviant sexual behavior and abuse of her, defendant contends the court should have required the state to specify precisely what instances were applicable to the charges against defendant.

“ ‘[UJnless time is an essential element of the offense charged, the time of the commission of the offense alleged in the indictment . . . is immaterial; and, proof of the commission of the offense at any time prior to the finding of the indictment. . . will sustain a conviction if the proof also establish the commission of the offense within the statute of limitations.’ ” Caldwell v. State, 139 Ga. App. 279, 281 (2) (228 SE2d 219) (1976). Furthermore, evidence concerning other incidents of defendant’s sexually abusing the victim was admissible to show intent, motive, plan, scheme and bent of mind. Payne v. State, 152 Ga. App. 471, 473 (2) (263 SE2d 251) (1979). Here the victim related that defendant committed the offenses charged on the date set forth in the indictment. Evidence of numerous and regular commission of similar offenses over the course of almost one-and-a-half years previously was properly admitted to show an ongoing and continuing perpetration of sexual abuse towards the victim.

3. When the state called a private physician, the director of a hospital’s emergency medicine, who had examined the victim at the request of DFACS shortly after she reported defendant’s criminal conduct, defendant objected on the basis that he had not been furnished a copy of the doctor’s scientific report as required by OCGA § 17-7-211. After argument, the trial court overruled the objection because defendant failed to show any such report existed. See Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983); State v. Mulkey, 252 Ga. 201 (1) (312 SE2d 601) (1984). Defense counsel had protested not being allowed to show there was a written report and during cross-examination brought out that the doctor was referring to an “emergency room record,” parts of which he had made out contemporaneously with his examination of the victim.

The report was not in the state’s possession prior to trial, but the prosecuting attorney assumed the doctor had a written record of the victim’s examination. He had told the defense attorney, the week before trial, about this and what he expected the doctor to testify, and he advised him to see the doctor to check on this. Defense counsel did not do so but subpoenaed the doctor as a witness.

OCGA § 17-7-211 provides for the exclusion from evidence of the requested report and proof pertaining thereto where the “scientific report is in the possession of or available to the prosecuting attorney.” See Luck v. State, 163 Ga. App. 657 (2) (295 SE2d 584) (1982); State v. Madigan, 249 Ga. 571, 573 (1) (292 SE2d 406) (1982), disapproved on other grounds, Law v. State, supra at 528 (1).

(a) First is whether this was a scientific report within the meaning of the code section. State v. Mulkey, supra at 203 (2), held: “it is clear that the reports enumerated in subsection (a) are tests which generally are carried out during the course of the investigation of a crime.” A physical examination of a victim of rape or other sexual abuse is standard when allegation of such an experience is brought to the attention of authorities or a child’s custodian. Although it is not usually conducted by one connected with law enforcement (as the state crime laboratory) or by a public official (as an autopsy by a medical examiner), the emergency room record of the exam is within the Mulkey terminology and therefore can be considered within the purview of OCGA § 17-7-211. This conclusion is buttressed by the purpose of the statute, as discerned by the Supreme Court of Georgia in Mulkey, supra at 204: “by giving the defendant a pre-trial opportunity to evaluate and verify scientific reports which will be introduced at trial, the discovery statute was intended to insure the integrity of those reports, thereby facilitating the truth-seeking function of the trier of fact.”

(b) Next is whether the record was “available” to the district attorney, for it was not in his possession.

In Luck v. State, supra at 658 (2), the district attorney was informed of a report by the state crime lab which information was communicated to defendant. However, the district attorney did not actually receive the written report until the day before trial. We held that an existing scientific report in the possession of the state crime lab was “available” to the district attorney and should have been forwarded in response to defendant’s demand.

Documents are available to the prosecuting attorney under OCGA § 17-7-211 when, although not in his possession, they are subject to his control or at least are more readily available to him than to defendant. These include documents held by various support groups to the criminal investigation. They are routinely obtained and the prosecuting attorney may not, by the expedient of leaving them with the originating body, contend they are not in his possession or available to him. But does this statute encompass every report prepared by a potential witness for the prosecution? What if the prosecution in good faith intends to use only the testimony of the witness? Must it act as an agent of discovery for defendant, gathering for him materials it has no intention of using? This question was addressed in Conklin v. State, 254 Ga. 558, 566 (331 SE2d 532) (1985), where the court considered the failure to produce a death certificate. The opinion announced: “We are confident that OCGA § 17-7-211 was not meant to provide sanctions for the failure to provide public information to which the defendant already had access.” Although in so stating the Court noted that the item was a public record accessible to all, here the report was expressly made available by the state to the defendant directly from the physician, prior to trial. That defendant did not obtain it does not give rise to non-compliance by the state so as to require exclusion of testimony based in part on the report.

Where the defendant is told of the information or knows as much as the prosecution does and has an equal opportunity to obtain the document from a non-affiliated witness, it is not a violation of the statute for the state to fail to produce it in response to a demand for scientific reports. Applying this here, the state was not obligated to obtain for defendant a copy of the emergency room record.

4. Defendant contends that, because the physician testified that in examining the victim it was obvious she had been sexually active, he should have been allowed to cross-examine her about her prior sexual conduct despite the “rape shield” act, OCGA § 24-2-3.

This code section applies to cases of statutory rape but the exceptions relating to consent and accused’s prior participation, OCGA § 24-2-3 (b), are inapplicable. Barnes v. State, 244 Ga. 302, 306 (260 SE2d 40) (1979). Thus, without exception, inquiring into the victim’s past sexual experiences is not permitted. Decker v. State, 139 Ga. App. 707 (2) (229 SE2d 520) (1976) (child molestation); Roberts v. State, 158 Ga. App. 309 (2) (279 SE2d 753) (1981) (sodomy); Hill v. State, 159 Ga. App. 489, 490 (2) (283 SE2d 703) (1981) (statutory rape; testimony as to victim’s past sexual encounters irrelevant); Estes v. State, 165 Ga. App. 453 (1) (301 SE2d 504) (1983) (incest); Brown v. State, 173 Ga. App. 640 (1) (327 SE2d 515) (1985) (statutory rape; defendant wanted to show someone other than he infected the victim).

5. Defendant contends that the court erred in overruling his objection to the prosecution’s inquiry of defendant as to why he had not subpoenaed witnesses he stated could have exonerated him on one issue.

On cross-examination the prosecutor was entitled to ask defendant why a witness, or witnesses, had not been called. Weaver v. State, 145 Ga. App. 194, 196 (4) (243 SE2d 560) (1978); Miller v. State, 160 Ga. App. 832 (1) (287 SE2d 679) (1982); Laster v. State, 178 Ga. App. 825, 826 (1) (345 SE2d 78) (1986); Contreras v. State, 242 Ga. 369, 372 (2) (249 SE2d 56) (1978).

6. Defendant contends there was no proof of the victim’s age because a birth certificate was not introduced into evidence.

Defendant misconstrues the best evidence rule which does not apply where the existence of a fact is in question rather than the contents of a writing. Willingham v. State, 134 Ga. App. 603, 606 (3) (215 SE2d 521) (1975). Although a witness’ testimony as to his age may be predicated on what he has been told, he is nevertheless competent to give such evidence which is primary proof. McCollum v. State, 119 Ga. 308, 309 (1) (46 SE 413) (1903). See Central R. v. Coggin, 73 Ga. 689, 696 (4) (1884); Wright v. State, 184 Ga. 62, 66 (4) (190 SE 663) (1937). The witness testified that she was nine years old at the time of the offenses and such evidence was sufficient for a rational trier of fact to find this as fact.

Decided May 6, 1987

Rehearing denied May 26, 1987

Griffin E. Howell III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    74247.
    COOPER v. THE STATE.
    (357 SE2d 880)
   Birdsong, Chief Judge.

Dale Cooper was convicted of armed robbery and sentenced to serve 14 years. He does not contest the sufficiency of the evidence to support the verdict or judgment nor could he, for there is sufficient probative evidence to convince any rational jury beyond reasonable doubt of Cooper’s guilt of the armed robbery charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Cooper however raises a question of error in the use of certain prior arrests by the State in an effort to impeach the testimony of the defendant, Cooper. Cooper’s defense was that a casual acquaintance had requested Cooper to drive the acquaintance plus another to a location not familiar to Cooper. Cooper testified he drove the two men and waited for them to come back to his vehicle. When they came back at a run, the acquaintance panicked Cooper who ran from the vehicle. The two men Cooper had brought to the scene then took the truck and abandoned Cooper. Shortly thereafter, Cooper saw a person on the street and asked about using a telephone. This person led Cooper to a phone in a nearby house. Shortly thereafter, police came and arrested the two men for committing a robbery of a small convenience store. Both Cooper and the person leading Cooper to the phone were identified as being involved in the robbery. It is clear therefore that credibility was the key issue as to whom the jury should believe.

During his own direct examination, after testifying as to the above sequence of events, Cooper denied being involved in a robbery or that he had ever been in any significant trouble. On cross-examination Cooper denied ever having been in trouble before with the law other than some peccadilloes while a student in high school. He denied ever having any dealings with the law before this arrest. He never had to go to jail before or anything like that.

In rebuttal and for the purpose of impeachment, Cooper was asked whether on six separate dates and places he had been arrested and taken to jail. On each occasion, Cooper denied the arrest or having been taken to jail. The State had before it a “rap sheet” showing seven different arrests. Over objection the State was allowed to ask if Cooper had been arrested on a given date or taken to jail. Cooper denied each arrest except one which he sought to explain. The State did not offer any particulars concerning any of the arrests. On redirect examination, Cooper reaffirmed that on all the arrests, he had never been convicted of anything nor had he served any time for as he said: “I didn’t do them things and that is why I wasn’t convicted of them.”

Cooper testified that he had not been arrested nor had he been in trouble with the police prior to the arrest for his armed robbery. The State had evidence that contradicted Cooper’s contentions thus raising questions as to Cooper’s truthfulness. Though the trial court would not allow the State to inquire into the specifics of the several arrests, the State was allowed to inquire into the truthfulness of Cooper’s assertions he had not been previously arrested nor in trouble with the law. Cooper apparently equated the arrest record as innocent because he “didn’t do them things” and none of them had resulted in convictions or time served. When Cooper testified on direct, he provided the State with an opportunity to cross-examine him thoroughly as to the subject of his direct testimony. Even though the direct testimony related to character, this did not preclude the State of its right to cross-examine and seek to impeach. See State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338); Caston v. State, 178 Ga. App. 752, 755 (344 SE2d 725). There was no error in allowing the impeaching testimony for the purpose of enabling the jury to evaluate the critical issue of credibility.

Cooper also complains the trial court erred in failing sua sponte to charge the jury on the purpose of the evidence of earlier arrests. We find no merit in this enumeration for Cooper did not request any charge on this subject. He may not now for the first time raise as error that was ignored at trial. Wiley v. State, 178 Ga. App. 136 (2) (342 SE2d 342). Moreover, as held hereinabove, the State had a right to conduct a thorough cross-examination of a matter raised by Cooper in his direct examination, even where the effect of the testimony on direct was to place character into issue. Inasmuch as the evidence properly came before the jury, clearly there was no requirement for the trial court sua sponte to testify as to the purpose of the testimony.

Decided May 26, 1987.

Drew R. Dubrin, Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, John G. Isom, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    74281.
    LEVERETT et al. v. FLINT FUEL, INC.
    (357 SE2d 882)
   Birdsong, Chief Judge.

Wrongful Death — Assumed Risk. The evidence established that Paul Leverett, Jr., his wife Valerie Ann, and their unborn child resided in a mobile home. The residence had been in Leverett’s family for some time and had been provided for the younger Leverett by his father, the appellant in this case. The trailer was heated by LP gas furnished by Flint Fuel, Inc. Regulations promulgated by the State Fire Commissioner (Ch. 120-3-16) in substance required a supplier-deliverer of LP gas, at the time of the first delivery of such gas, to inspect the entire LP heating system for safety purposes to include the LP storage tank, feeder line and heating element and equipment. It is uncontested that Flint Fuel was not aware of this regulation and did not inspect the LP system used by the Leveretts in their trailer, when making the first recorded delivery in 1983. Several deliveries were made during the winter of 1983-84 and again during the winter of 1984-85. In December 1984, when the younger Leverett did not appear for work, the trailer was checked to ascertain why Leverett did not appear for work. Forceful entry was required to enter the trailer and Valerie Ann was found dead in bed, the obvious victim of carbon monoxide poisoning, also resulting in the death of the unborn child. Leverett, Jr., was found on the floor still alive. Though he was transported to the hospital and regained consciousness and seemed on the way to recovery, two days later he died of a pulmonary embolism, ostensibly caused by the earlier severe carbon monoxide poisoning.

Expert evidence was offered by both plaintiff and defendant (the father of Leverett, Jr., and Flint Fuel, respectively). Leverett’s expert offered evidence that the regulator at the outside tank allowed too high a pressure which would cause the gas burners to burn a little hotter. He also found a crimp in the line leading to the heating units in the trailer. This expert expressed the opinion these two defects were minor and probably did not contribute significantly to the death of the Leveretts by carbon monoxide poisoning. He found, however, that there was an unvented space heater (probably at least 30 years old) approximately three inches from the trailer wall. The closeness of the heater to the wall caused a lessening of air flow. But most importantly, in the opinion of this expert, the radiants of the space heater had been moved forward in the heater so that the gas jets were releasing gas against the bottom of the radiants rather than up against the tines or projections on the face of the radiants. This caused an improper mixing of the gas and oxygen in the cone of fire and resulted in an impure burn causing a dangerous formation of carbon monoxide gas rather than the usual formation of carbon dioxide. While an ordinary user probably would not have noticed or been aware of the forward displacement of the radiants, the senior Leverett contends in this complaint that had Flint Fuel made the required inspection the displaced radiants would have been observed by the obvious presence of yellow cones of flame (representing incomplete burn) rather than the blue flame (which represented a desirable and more complete burn).

In contrast, the expert offered by Flint Fuel testified that even though the radiants had been moved forward, there still was sufficient space between the gas orifices and the base of the radiant to allow the formation of a full cone and cause a clean (blue) burn. The heating of the radiant across its face or from the bottom up would make no difference as far as heat production was concerned for in either event the heat of the radiants was what provided the heat and not the manner in which the radiant gained its heat. This expert concluded that there was no physical evidence of an improper (incomplete) burn for both experts conceded that an incomplete burn would cause an excessive amount of carbon to form and neither expert found a build up of carbon on the radiants of the suspect unvented space heater. In the opinion of Flint Fuel’s expert, if improper ventilation of a closed space was permitted, once an unvented heater commenced burning, thus combining available gas with available oxygen in the space being heated, ultimately all available oxygen would be used up. If no fresh air provided a replenishment of oxygen, the carbon generated would find less and less oxygen to form molecules of carbon dioxide and thus form more and more molecules of carbon monoxide. Thus, this expert concluded that the deaths of the two adults and the unborn infant were caused by an insufficient supply or source of oxygen.

When the bodies were found, the unvented space burner was found burning and the interior of the trailer was very hot, perhaps well over 100 degrees. It was conceded that all windows were closed and that the trailer was well insulated and seemed draft free, although evidence also was offered that even slight draftiness probably would have furnished sufficient oxygen to keep the interior of the trailer safe. Lastly, evidence was offered that at some time prior to this tragic incident, Valerie Ann had been in a local store and was looking at vented and unvented space heaters. She had been advised and warned at that time that unvented space heaters were dangerous and if used, required ample ventilation.

After a trial before a jury on the issues of negligence and comparative negligence, the jury returned a verdict in favor of the defendant, Flint Fuel. The elder Leverett now brings this appeal enumerating as error the refusal of the trial court to admit a written copy of the regulation assertedly violated by Flint Fuel when not making the initial inspection and in failing to charge as requested that contributory negligence is not established simply because the younger Leveretts may not have done all they could have to have precluded what eventually caused their deaths. He also argues the trial court erred in overruling a motion for new trial and in denying the request of a juror to allow the jurors to take notes during the trial. Held:

1. We will not address the enumeration of error contending error in the denial of a new trial. Appellant has presented no argument or authority to support such an enumeration. It is therefore deemed abandoned. Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630).

2. In his second enumeration, Leverett contends the trial court abused its discretion when the specific request of a juror to take notes was denied. Prior to trial, counsel for Leverett had offered to furnish pads and pencils to allow the jurors to take notes but this offer was rejected by the trial court. Subsequently when the juror made a request to take notes, the trial court adhered to its earlier ruling.

While there was substantial expert testimony involved in this case, the issues were not complicated by the technical evidence. The proximate cause of death was carbon monoxide poisoning. The issue was whether the presence of the carbon monoxide was proximately caused by the failure of Flint Fuel to make its required inspection, or by the failure of the Leveretts to afford sufficient air circulation while using an unvented space heater. The law is quite clear that in the absence of unusual circumstances, the matter of jury note-taking is left to the discretion of the trial judge. Post-Tensioned Constr. v. VSL Corp., 143 Ga. App. 148, 149 (1) (237 SE2d 618); Williamson v. State, 142 Ga. App. 177 (3) (235 SE2d 643). Clearly it would not have constituted error for the court to have allowed note-taking, but neither can we conclude the court abused its discretion in disallowing such note-taking. This enumeration lacks merit.

3. In the third enumeration of error, it is argued the trial court erred in refusing to admit a copy of Chapter 120-3-16 for view by the jury and to allow the jury to have a copy of the chapter with it in the jury room.

At the beginning of the trial, Flint Fuel argued that this particular chapter had not been promulgated in accordance with the statutory requirements for creation and publication of rules and regulations by the State Fire Commissioner. It was shown that prior to publication there must be a public hearing preceded by publication in a newspaper of general distribution. In the absence of proper publication, there was objection of lawful issue.

We need not pursue the question of whether there had been appropriate publication for, in our opinion, even assuming there had been a sufficient showing of proper promulgation, we find no harmful error in the exclusion of this written word of the regulation. The whole case of the plaintiff-appellant Leverett was that there was a duty to inspect. The contents of the regulation were presented by Leverett, Sr., to Flint Fuel’s agent on cross-examination who conceded the applicability of the regulation and that he had not performed the required inspection upon the first delivery nor at any time subsequent thereto. The contents of the regulation were argued by counsel. The trial court charged the chapter and informed the jury that a disregard of the duty imposed by the chapter constituted negligence per se. It is clear therefore that the physical presence of the written word could not have presented the neglected duty any more forcefully nor clearly than was actually presented to the jury.

It is an old and sound rule that error to be reversible must be harmful. Burger Chef Systems v. Newton, 126 Ga. App. 636, 639 (191 SE2d 479). Appellant must show error which has hurt him. This court is not an expounder of theoretical law but it administers practical law, and corrects only such errors as have practically wronged the complaining party. See Brown v. Atlanta, 66 Ga. 71. We can find no prejudice under the circumstances of this case.

4. In the last two enumerations of error, Leverett contends the trial court erred in denying the request to charge that where there is a duty of ordinary care for one’s own safety, one is not contributorily negligent merely because of a failure to exercise that degree of care which would have absolutely prevented injury, for all that is required is the exercise of ordinary care.

Manifestly, it is clear that the jury was required to determine from the law and evidence presented whether the space heater was patently or latently defective and whether the defect caused an excessive and dangerous build-up of carbon monoxide resulting in the deaths of the younger Leveretts. From the facts and law presented, if the jury so found, it could have returned a verdict against Flint Fuel for the jury was told the failure to inspect and eliminate such a latent or patent defect would have been the result of negligence per se by Flint Fuel. However, under the evidence and within the charge, the jury also could have found that the unvented space heater was not latently or patently defective and was not producing excessive carbon monoxide because of any such defect. The jury could have found under the evidence that the Leveretts failed to provide sufficient circulation which directly caused the build-up of carbon monoxide, after being warned that such ventilation was a commonly known safety requirement in the use of an unvented space heater. Then the jury was advised that if it found negligence on the part of both parties, it was required to determine what was the proximate cause of the carbon monoxide build-up and whether Flint Fuel’s concurrent negligence, if present, predominated or was offsetting.

In presenting the legal principles applicable to these factual issues, the trial court charged that the younger Leveretts were bound to exercise ordinary care and diligence in order to avoid the consequences of Flint Fuel’s negligence, if any. Though the court charged that Flint Fuel’s violation of the safety regulations constituted negligence per se and that ignorance of the law was no excuse, the jury was further charged that the failure to make the inspection had to be the proximate cause of the subsequent deaths, in the light that proximate cause was that one event without which the deaths would not have occurred. The jury was told that if the deaths would have occurred even in the absence of the failure to inspect, then the jury could conclude that the failure to inspect might not have been the proximate cause of the deaths. In this perspective, the jury was told that if the Leveretts by the exercise of ordinary care and diligence could have avoided the consequences to themselves of the use of the space heater and the failure so to exercise such ordinary care was the direct and proximate cause of the deaths, no right of recovery existed for the deaths. Lastly, the jury was charged on the principles of comparative negligence and assumption of risk of an obvious danger (i.e., the failure to provide adequate ventilation). If there existed reason for the Leveretts to apprehend this danger, and this danger would have caused an ordinary prudent person to apprehend reasonably the probability of danger, then the Leveretts were required to take such steps as an ordinary, prudent person would have taken under the circumstances so as to avoid the consequences. If the Leveretts failed to take such precautions so as to avoid harm to themselves, no right of recovery existed. Also, the charge pointed out that even if the Lever-etts were aware of a defect in the heater, such knowledge would not constitute an assumption of risk unless it was shown also they had a comprehension of the danger.

We have undertaken to set out in comprehensive summary the pertinent part of the charge dealing with the issues of negligence, both by Flint Fuel and the Leveretts so as to place the request to charge in perspective. As we view the requested charge, such a request in effect would allow the jury to find that if there was no failure to exercise extraordinary care by the Leveretts for their own safety when they did not discover the latent defect, then the jury could find they may have exercised ordinary care. The request is argumentative. It requires an assumption that the only risk was the latent one caused by the excessive formation of carbon monoxide resulting from the displacement of the radiants, a defect not readily discernible to a non-expert. It assumes, therefore, as appellant in fact argues, that the Leveretts performed no affirmative act that could reflect negligence. As pointed out, however, the jury also could have found that the deaths were caused by an omission, the failure of the Leveretts to afford sufficient ventilation, an act directly attributable to themselves and reasonably apparent even to a non-expert.

Decided May 26, 1987.

Tyron C. Elliott, for appellants.

Peter K. Kintz, K. Scott Graham, for appellee.

It is not error to refuse a requested instruction which is argumentative or favors one party’s position by applying facts as legal principles. Ferry v. State, 161 Ga. App. 795, 800 (6) (287 SE2d 732). Thus a requested charge should be given only when it embraces a correct and complete principle of law which has not been included in the general instructions given and where the request is pertinent and adjusted to the facts of the case. Roberson v. Hart, 148 Ga. App. 343, 345 (251 SE2d 173). Our examination of the charge of the trial court on the issue of negligence reflects that it was full to overflowing. If there were any errors in the charge, they were inconsequential. The Lever-etts lost not because of the charge, but because they failed to impress the jury with the justness of their cause. Allen & Co. v. Boyd & McDavid, 1 Ga. App. 348 (2) (57 SE 939).

Judgment affirmed.

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