text:
    A91A0007.
    B. C. B. COMPANY, INC. et al. v. TROUTMAN.
    (409 SE2d 218)
   Cooper, Judge.

This interlocutory appeal arises out of a sexual harassment action brought by appellee Sheila Troutman against her supervisor Bradley Bennett (“Bennett”) and appellants, B. C. B. Company, Inc. (“BCB”) and its parent company, Beers, Inc. (“Beers”). Appellants enumerate as error the denial of their motion for summary judgment and their motion for a jury of 12 persons.

In 1986, Sheila Troutman was employed by BCB as a timekeeper at various construction sites and worked in an office under the immediate supervision of Bennett. Troutman testified in her deposition that during the time she worked under Bennett’s supervision, Bennett engaged in a course of conduct which included making obscene comments to her about various parts of her body, constantly rubbing against her body, touching her breasts and other intimate areas of her body, kissing her neck, and threatening Troutman’s job if she did not go to a motel with him. Troutman testified that she repeatedly pushed Bennett away and told him to stop bothering her but Bennett’s behavior continued. Troutman eventually complained to Jerry Seaman (“Seaman”), the payroll clerk to whom Troutman turned in time records. Troutman testified that she took her complaint to Seaman because she believed that he was the head of payroll and she considered Seaman to be her “boss” outside of the job site. Troutman took a medical leave from her job and during her absence was replaced by Christa Conner. Shortly after Troutman returned from her medical leave, she was terminated from her employment with BCB. She subsequently filed an action in the State Court of Fulton County against Bennett, BCB and Beers, alleging that Bennett sexually harassed Troutman; that BCB and Beers knew of and condoned Bennett’s actions; that Bennett’s conduct constituted intentional infliction of emotional distress, assault and battery and invasion of privacy; and that BCB and Beers negligently hired and retained Bennett.

1. Appellants first contend that the trial court erred in denying their motion for summary judgment on appellee’s claims arising from Bennett’s alleged sexual harassment. Appellants argue that appellee bases her cause of action on intentional torts occurring outside the scope of Bennett’s employment with BCB; therefore, appellants cannot be held liable under a theory of respondeat superior. This case is controlled by Favors v. Alco Mfg. Co., 186 Ga. App. 480 (2) (367 SE2d 328) (1988). In Favors we held that the employer could not be liable for the alleged sexual harassment of the plaintiff because the alleged acts of sexual harassment were not committed by the supervisor in furtherance of the employer’s business and were outside the scope of the supervisor’s employment. Appellee’s reliance on Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670 (347 SE2d 619) (1986) and Wiley v. Ga. Power Co., 134 Ga. App. 187 (213 SE2d 550) (1975) is misplaced. In those cases, there was evidence that the employer ratified the supervisor’s conduct by discharging the plaintiff and retaining the supervisor upon learning of the tortious misconduct. In the case sub judice, there is no evidence that Bennett’s superiors terminated Troutman’s employment in response to her complaints regarding Bennett. Therefore, summary judgment should have been granted to appellants on Troutman’s intentional tort claims.

2. Appellants also contend that the trial court erred in denying their motion for summary judgment on Troutman’s claim of negligent hiring/retention. Appellants argue that Troutman failed to follow BCB’s established policy regarding the reporting of sexual harassment; therefore, appellants had no knowledge of any harassment by Bennett. The record reflects that prior to Troutman’s employment with BCB, Joyce Robinson (“Robinson”) had worked as a timekeeper under the supervision of Bennett; that Bennett had sexually harassed Robinson in much the same way as he did Troutman; that Robinson reported the harassment to Chris Williams, a supervisor in the accounting department for Beers; that Chris Williams relayed what Robinson told him about Bennett to either the president of BCB or the president of Beers; that the president of Beers spoke with Bennett about Robinson’s allegations; that Robinson also reported the harassment directly to the president of BCB; and that a decision was made to transfer Robinson to a position away from Bennett. Seaman also testified in his deposition that he had worked for Beers for over ten years and had heard rumors about Bennett “chasing women” for almost as long. He also stated that he reported the rumors to Chris Williams sometime between 1985 and 1987.

Appellants argue that because Troutman did not follow the company’s established grievance procedure for reporting sexual harassment, she should not be allowed to sue for negligent hiring or retention. Although a company’s express policy for discouraging sexual harassment is one factor to be considered in assessing the potential liability of an employer (Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (2) (381 SE2d 303) (1989)), “‘[a] cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.’ [Cit.]” Coleman v. Housing Auth. of Americus, supra at 170. “ ‘An employer may know, or in the exercise of due care have reason to know, of an employee’s reputation for sexual harassment in the absence of complaints.’ [Cit.]” Coleman v. Housing Auth. of Americus, supra. Notwithstanding that Troutman did not take her complaint to those directly in charge of Bennett, we find that a question of fact exists as to whether those persons, based upon information previously provided to them from Robinson and Seaman, in the exercise of ordinary care, could have reasonably discovered that Bennett was acting in a sexually harassing manner toward Troutman. Accordingly, the trial court properly denied summary judgment to appellants on the issue of negligent hiring/ retention.

3. Appellants also contend that the trial court erred in denying their motion for summary judgment on Bennett’s cross-claim for indemnification. Bennett argues in his cross-claim that he is entitled to indemnification from appellants because their termination of Trout-man precipitated the lawsuit against him for sexual harassment. However, the record is devoid of any evidence that Troutman brought her lawsuit in retaliation for her termination. Nor has Troutman alleged wrongful termination as a cause of action against Bennett or appellants. Troutman repeatedly testified in her deposition that her work suffered as a result of Bennett’s constant harassment. Although Bennett, as the party opposing appellant’s motion for summary judgment, was entitled to be given the benefit of all reasonable doubt and to have all inferences arising from the evidence construed in his favor, Echols v. Hudson, 189 Ga. App. 780, 781 (377 SE2d 542) (1989), where the record demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, summary judgment is proper. Curry Corp. v. Mooro, 195 Ga. App. 184 (1) (393 SE2d 33) (1990). Therefore, we conclude that appellants were entitled to summary judgment on Bennett’s cross-claim for indemnification.

Decided May 31, 1991

Reconsideration denied July 29, 1991

Alston & Bird, Robert H. Buckler, Bernard Taylor, W. Glenn Viers, Varner Stephens, Wingfield & Humphries, J. D. Humphries III, Carolyn T. Thurston, Julie Y. John, for appellants.

John H. Ridley, Robert Stein, for appellee.

4. In their final enumeration of error, appellants contend that the trial court erred in denying their motion for a jury of 12 persons. In her complaint, Troutman requested actual and punitive damages and attorney fees, but did not specify an amount. OCGA § 15-12-122 (a) (2) provides that “[i]n all civil actions in the state courts in which the claim for damages is greater than $10,000, either party may demand in writing prior to the commencement of the trial term that the case be tried by a jury of 12.” In accordance with our decision in Super Discount Markets v. Kubitz, 197 Ga. App. 224 (398 SE2d 252) (1990), we hold that since the record did not affirmatively show that the claim was for less than $10,000, the trial court erred in not granting appellants’ request for a 12-person jury.

Judgment affirmed in part; reversed in part.

Birdsong, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge. Andrews, Judge,

license: Public Domain

text:
    A91A0239.
    McDANIEL et al. v. DEPARTMENT OF TRANSPORTATION.
    (409 SE2d 552)
   Sognier, Chief Judge.

The Department of Transportation condemned property on three parcels of land in Appling County when widening U. S. Route No. 1 and deposited $7,350 with the court as its estimate of just and adequate compensation for the property. Two of the parcels were owned in fee simple by Fannie Mae McDaniel and Earl D. McDaniel. Orien White owned a life estate in the third parcel in which Fannie Mae McDaniel owned the remainder interest. The condemnees appeal from the jury verdict awarding them $9,270 as just and adequate compensation for the property.

1. The DOT’s expert witness, T. H. Weatherly, testified on direct examination that his opinion of the value of the property being taken included no amounts for consequential damages because of his determination that there was no reduction in the value of the remaining properties. On cross-examination, appellants’ counsel asked Weatherly, “[n]ow since the condemnation have you checked to see whether [condemnee Fannie M.] McDaniel’s apartments [in a building on one of the parcels] have been rented in the last year and a half?” Although Weatherly had been asked and had answered a similar question regarding a rental house on another parcel involved in the condemnation, the DOT objected to the above question on the basis that it improperly addressed matters subsequent to the date of the taking. Although appellants’ counsel informed the court that the purpose of the question was to explore the matters the DOT’s expert witness had considered in arriving at his opinion, the trial court sustained the DOT’s objection. Appellants argue that ruling was error because it impermissibly infringed upon their right under OCGA § 24-9-64 to cross-examine thoroughly the DOT’s expert witness regarding his testimony on the lack of consequential damages.

We agree with appellants that the trial court erroneously excluded Weatherly’s response. “While it is not necessary that an expert witness state the facts upon which he bases his opinion, [cit.], it is error to refuse to permit him to do so for the purpose of showing the basis of the opinion. [Cits.] It matters not whether the facts are sought from the witness while on direct or on cross examination. These may or may not be admissible as direct proof of value, depending upon their nature, but they are generally admissible for showing the basis of the expert’s opinion as to value and for enabling the jury to evaluate its weight.” State Hwy. Dept. v. Howard, 119 Ga. App. 298, 303 (6) (167 SE2d 177) (1969). “[A] jury is entitled to know all of the facts upon which the witness’ opinion rests and the facts may be brought out on cross-examination. [Cit.; Howard, supra.]” Eason v. State, 260 Ga. 445, 446 (396 SE2d 492) (1990).

Although the DOT argues that evidence of lost rentals on the remaining property after the date of taking is irrelevant (but see Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 794 (1) (366 SE2d 160) (1988), rental value or diminished rental value can be considered insofar as it helps to establish the fair market value of the remaining property), the issue is not whether appellants sustained lost or diminished rents as a result of the condemnation or whether consideration in some manner of the rents was proper in the condemnation proceeding sub judice (a subject on which we intimate no opinion). Rather, the issue is whether appellants should have been allowed to cross-examine Weatherly on the rentals in order to show the jury whether his valuation had — properly or improperly — included or excluded the rental value issue. Appellants’ question was proper and under Howard, supra, and Eason, supra, the trial court’s restriction on appellants’ right of cross-examination of Weatherly was reversible error.

2. Appellants contend the trial court erred by denying their motion for a partial directed verdict because the DOT failed to carry its burden of proof by establishing the damages to each of the three separate pieces of property condemned and the different improvements to each. Weatherly, the DOT’s sole witness, testified that: from Tract One, a vacant unimproved piece of property, the DOT was taking .04 of an acre; from Tract Two, on which was situated an older frame house, the DOT was taking .21 of an acre, including a wood fence and a small sign; and from Tract Three, on which were situated some motel units, the DOT was taking .121 of an acre, including a canopy and a planter. It appears that these properties do not abut one another, but are separated by roads or other properties not involved in this condemnation. Weatherly testified that the total taking for all three properties combined was .471 of an acre; that he appraised the properties by looking to sales of comparable properties; that he made the appraisal separately as to each parcel of land; and that the combined value of the property being taken, “land and all improvements,” was $7,270. As noted above, he testified that he determined there was no reduction in the value of the remaining properties.

Appellants’ expert testified to the value of each individual parcel and its improvements, which he stated amounted to $15,742, and calculated the consequential damages to the remaining properties as totalling $51,464.

“ ‘(T)he basic and controlling requirement is the constitutional command that, before [the] taking of private property for public use, the taker must first pay therefor, and this burdens the taker to prove the value thereof. To obtain a verdict fixing that value, the taker must introduce evidence showing value ...[.] That ruling is consistent with the ruling placing the burden of proving the value upon the condemnor.’ [Cit.] ‘The condemnor meets this burden as soon as it introduces evidence of value. (Cit.)’ [Cit.]” Glover v. Dept. of Transp., 166 Ga. App. 512 (304 SE2d 567) (1983).

There is no issue in this appeal regarding the propriety of the DOT’s consolidation of condemnation proceedings against these three separate and distinct parcels of property into one in rem action. See Marist Society v. City of Atlanta, 212 Ga. 115, 118 (3) (90 SE2d 564) (1955). Rather, the issue is whether the DOT was required to prove the value of each property it condemned notwithstanding the consolidation of proceedings against these three properties. Clearly, the burden is on the condemnor to prove the value of property taken, see Glover, supra, and that burden cannot be avoided merely by consolidating multiple takings into one condemnation proceeding. This is not to say that there are not certain circumstances, such as where the values of the land and the improvements on each parcel are equal, where the DOT’s burden as condemnor can be carried by adducing evidence of the value of the combined properties. However, such is not the situation in the case sub judice where, quite aside from the confusion the jury must have experienced as a result of the DOT’s expert’s testimony regarding the amount of acreage actually condemned in each parcel, the DOT adduced no evidence indicating that the value of land and improvements on each of the three parcels was equal. Indeed, Weatherly’s testimony regarding the differences among the non-contiguous parcels as to development and the presence of improvements thereon suggests the parcels were not of equal value.

We agree with appellants that the DOT failed to carry its burden of proving the value of each of the three properties so as to enable the jury to determine the just and adequate compensation due appellants. We do not agree with the DOT or the special concurrence that Department of Transp. v. Olshan, 237 Ga. 213, 216-217 (227 SE2d 349) (1976), stands for the proposition that where multiple properties have been combined in one condemnation action, the condemnor is not required to prove the value of each property it condemns. In Olshan, condemnee Martin Olshan owned by warranty deed a 64 acre tract of land. The remaining condemnees based their ownership rights in that one tract of land on security deeds each held to a portion of the tract. The Supreme Court rejected the argument that these “ ‘owners’ ” were entitled to separate appraisals and separate trials as to the respective parcels in which they held an interest, id. at 215-216, where there was a “ ‘common denominator’ ” (e.g., condemnee Martin Olshan) whose ownership right attached “to [the] one tract of land in its entirety.” Id. at 216-217. Instead, the Supreme Court authorized the condemnor to proceed to a conclusion with only one in rem action, thereby holding that the condemnor is entitled to bring only one action against all claimants with ownership interests in the property. As summarized in Department of Transp. v. McLaughlin, 163 Ga. App. 1, 3 (292 SE2d 435) (1982), the principle in Olshan is that “all claimants to one piece of condemned property [can] be joined in one action for resolution of all issues by the trial.” Accordingly, the appellate decisions applying the holding in Olshan all involve one property with multiple ownership interests therein, typically that of lessor/lessee. E.g., Fong v. Dept. of Transp., 194 Ga. App. 702 (1) (391 SE2d 704) (1990); Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414, 415-416 (3) (343 SE2d 497) (1986); McLaughlin, supra at 2-4 (1). Since the issue here is not the presence of multiple ownership interests in one tract of property but of multiple properties, Olshan is not applicable here.

We note that the verdict form did not require the jury to allocate separately the amount of just and adequate compensation for each property and accordingly, the jury did not separate the sum awarded. The transcript reflects, however, that there was no request by appellants for such separation or any objection to the verdict form, and appellants raise no complaint regarding that matter in this court. See Georgia Power Co. v. Bray, 130 Ga. App. 618, 619 (204 SE2d 351), rev’d on other grounds, 232 Ga. 558 (207 SE2d 442) (1974). Therefore, we do not find it necessary to comment upon the propriety of the jury’s award or upon whether the verdict should have been “moulded under the direction of the court so as to do complete justice and avoid confusion of interests.” OCGA § 22-2-138; see generally Alexander v. Rozetta, 110 Ga. App. 660, 661 (139 SE2d 451) (1964).

However, we do not agree with appellants that because the DOT’s expert testified to only a lump sum value whereas their expert testified to the value of each individual parcel and its improvements, with a total of $15,742, the trial court should have granted their motion for a partial directed verdict and awarded them $15,742 as just and adequate compensation for the properties taken. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions and inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); [Cit.].’ [Cit.]” Turner &c. Advertising v. Fidelity Eastern &c., 185 Ga. App. 815, 817 (366 SE2d 201) (1988). Although we agree with appellants that the DOT’s evidence was insufficient to enable the jury to arrive at the value of the three properties taken in the condemnation action, Weatherly’s testimony that the combined value of all the interests in those properties equalled only $7,270 did constitute some evidence that all the interests therein did not amount to the $15,742 value given by appellants’ expert. Therefore, a partial verdict in favor of appellants was not demanded, and the trial court did not err by denying their motion. See generally Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 685-686 (1) (382 SE2d 721) (1989).

3. Appellants contend the trial court erred by admitting into evidence 14 photographs of the property. Weatherly testified that the photographs depicted the three tracts being condemned and that they were fair representations of the properties involved. No evidence was adduced by the DOT showing the photographs to be fair and accurate representations of the properties on the date of taking or otherwise indicating that there had been no substantial changes since the taking in the properties as depicted. Compare Department of Transp. v. Petkas, 189 Ga. App. 633, 636 (3) (377 SE2d 166) (1988). Such evidence does constitute part of the foundation of a photograph of property taken in a condemnation proceeding. See, e.g., Skipper v. Dept. of Transp., 197 Ga. App. 634, 639 (6) (399 SE2d 538) (1990), in which we upheld the exclusion of a photograph because, inter alia, “no foundation was established as to when the photograph was taken or who took it and no one testified who was present when the picture was taken.”

However, the improper admission of the photographs here does not present a ground for reversal in this appeal because the transcript reveals that appellants’ objection at trial was only that the DOT had failed to lay the “proper foundation” for the introduction of the photographs. It is well established that an objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. Freeman v. Young, 147 Ga. 699, 700 (3a) (95 SE 236) (1918); Boss & Bowen v. Head Realty, 137 Ga. App. 553, 554 (3) (224 SE2d 459) (1976).

Judgment reversed.

McMurray, P. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I agree with Division 1 and, therefore, concur in the judgment. I disagree, however, with the majority’s conclusion in Division 2 that the jury’s award with respect to the multiple properties condemned must necessarily set forth separate sums for each property, rather than a lump-sum.

Multiple separate properties with some element of common ownership, as found in the present case, may be joined in a single condemnation action. Cook v. State Hwy. Bd., 162 Ga. 84, 101-102 (132 SE 902) (1926); State Hwy. Dept. v. H. G. Hastings Co., 187 Ga. 204, 208 (199 SE 793) (1938), overruled on other grounds, 216 Ga. 517, 521 (118 SE2d 88) (1961); Marist Society v. Atlanta, 212 Ga. 115, 118 (90 SE2d 564) (1955); Kennedy v. State Hwy. Dept., 108 Ga. App. 1 (132 SE2d 135) (1963). Although I agree a separate jury award for each property would be authorized, and perhaps advisable in the interests of judicial economy, (see generally Department of Transp. v. Gordon, 148 Ga. App. 713, 714 (252 SE2d 211) (1979) (Birdsong, J., concurring specially) (regarding separate awards for multiple ownership interests in one property)), I do not find any authority which requires separate awards, or holds that a lump-sum award is erroneous.

In analogous circumstances, where multiple ownership interests are condemned in one property in a single condemnation action, both lump-sum and separate verdicts have been approved. As the majority points out, Department of Transp. v. Olshan, 237 Ga. 213 (227 SE2d 349) (1976) recognizes that where multiple ownership interests in one property are sought to be condemned, the condemnation may be pursued in a single in rem action if the rights of at least one such owner attach to the whole tract. In applying Olshan to a condemnation of competing ownership interests, the court in Department of Transp. v. McLaughlin, 163 Ga. App. 1, 3 (292 SE2d 435) (1982) stated that “[t]he general rule followed by most jurisdictions is to require only one condemnation action, join all parties whose presence is necessary to condemn all interests, and to instruct the jury first to determine the value of the whole, and then secondarily determine the amounts to be awarded to the separate interests. [Cits.] Our Supreme Court [in Olshan, supra] has authorized such a procedure.” McLaughlin, supra at 3. (Emphasis supplied.) Accordingly, the McLaughlin court rejected the DOT’s argument that a lump-sum award was required, and that the trial court erred by directing the jury to return a verdict setting out separate sums to be awarded to each ownership interest condemned. However, neither Olshan nor McLaughlin held that a lump-sum award was erroneous, but only that the separate award procedure was authorized.

In reaching this conclusion, the McLaughlin court explained that Georgia has rejected the “undivided fee rule,” which holds that compensation for the taking is equivalent only to the value of the undivided whole, rather than the sums of the various ownership interests in the whole. McLaughlin, supra at 2-3; see generally 4 Nichols on Eminent Domain, § 12.05 [1] (Rev. 3d ed. 1990). But while recognizing that determining just and adequate compensation requires the jury to consider the value of the various ownership interests to be condemned, this Court has also recognized that the value of the various interests may be properly combined in a lump-sum verdict. State Hwy. Dept. v. Thomas, 115 Ga. App. 372, 377 (154 SE2d 812) (1967).

Moreover, the evidence was not insufficient to enable the jury to determine the value of the parcels condemned merely because the DOT’s expert testified as to a lump-sum dollar figure for all the tracts. A jury provided with sufficient facts and circumstances about the property to calculate value with a reasonable degree of certainty, may properly reject a dollar figure given by an expert and reach its own conclusions with respect to value, so long as the award does not reflect that the jury was grossly mistaken or unduly biased. Department of Transp. v. Delta Machine Prods. Co., 157 Ga. App. 423, 427-428 (278 SE2d 73) (1981); compare Dept. of Transp. v. Bird, 158 Ga. App. 369 (280 SE2d 394) (1981); Municipal Elec. Auth. v. Anglin, 180 Ga. App. 600 (349 SE2d 546) (1986). Such an award is supportable if within the range of all the evidence, whether rendered in the form of a separate amount for each parcel or a lump-sum amount.

Decided July 15, 1991

Reconsideration denied July 29, 1991.

Kris Knox, for appellants.

Michael J. Bowers, Attorney General, Zorn & Caldwell, William A. Zorn, for appellee.

It was not error to condemn the separate properties in a single action, and employ the lump-sum jury award.

       The correct total of the property taken was .361 of an acre. The DOT does not challenge appellants’ assertion in their brief that the amount of the properties taken was actually .20 of an acre for Tract One (not .04 of an acre, as Weatherly stated), and .04 of an acre for Tract Two (rather than Weatherly’s testimony of .21 of an acre). Weatherly’s computation of the amount taken from Tract Three was correct.


author: Cooper, Judge.

text:
    A91A0252.
    MATTAROCHIA v. THE STATE.
    (409 SE2d 546)
   Cooper, Judge.

Appellant was convicted in a jury trial of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and driving with a blood alcohol concentration greater than 0.12 grams (OCGA § 40-6-391 (a) (4)), and appeals the denial of his motion for new trial and motion for modification of sentence.

Viewing the evidence in the light most favorable to the jury’s verdict, it appears that while responding to a call concerning a traffic accident shortly after 6:30 a.m. on July 13, 1989, Officer Britt of the Atlanta Police Department was flagged down by appellant en route to the reported site of the accident. Appellant said that he had been in an accident and had run off the roadway. Officer Britt testified that as appellant approached the car, he detected a strong odor of alcohol on appellant’s breath and noticed that appellant was unsteady on his feet; his eyes had a glassy appearance, and his speech was slurred. Appellant got into the patrol car and directed Officer Britt to the accident site, which was approximately one-eighth of a mile away. At the site, Officer Britt discovered skid marks on the roadway and tire tracks in the dirt which led to a car which had been driven over the curb, into the grass of a city park and was resting against a tree on its right side. Officer Britt observed that the radiator was warm and the engine was steaming. Appellant, still seated in the patrol car, was then placed under arrest and was advised of his rights, including implied consent warnings pursuant to OCGA § 40-5-55. No field sobriety test was given; however, appellant consented to a blood test. At trial, the parties stipulated that appellant’s blood alcohol level at the time of testing was 0.12 grams.

1. At the outset we will consider appellant’s various contentions that the trial court erred in its rulings on the sufficiency and adequacy of the accusation and jurisdictional questions. Appellant argues that this case was improperly bound over to the State Court of DeKalb County from the City Court of Atlanta because the citations issued by Officer Britt indicated that appellant was cited for violating local offenses and appellant did not elect to have the offenses treated as state offenses pursuant to OCGA § 40-6-376 (b). This contention is without merit. The solicitor’s decision to charge appellant with state violations was duly authorized by OCGA § 40-6-376 (a). Appellant’s contention that the accusation and an amended accusation were improper because they were drawn more broadly than the citations is likewise without merit. See Manning v. State, 175 Ga. App. 738 (2) (334 SE2d 338) (1985). Appellant’s remaining arguments that the trial court was without jurisdiction to hear the case and that the traffic citations must serve as notice of the charges, due to the solicitor’s failure to file the accusations with the court, will not be considered as they were not raised as error below. Hight v. State, 195 Ga. App. 727 (6) (394 SE2d 636) (1990). Moreover, it appears any objection to the amended accusation was waived by appellant’s counsel’s consent to the amended accusation before the trial commenced.

2. Appellant enumerates as error the trial court’s denial of his motion to suppress statements allegedly made by appellant which were requested by the defense prior to trial pursuant to OCGA § 17-7-210 and were not provided by the State. Specifically, appellant complains of the admission of Officer Britt’s testimony regarding appellant’s statement to him that appellant drove the car off the road. OCGA § 17-7-210 (a) requires the State to provide a defendant with copies of any statements given while in police custody. Inasmuch as the statement of which appellant complains was not made while in police custody and appellant can point to no other statements made while in police custody which the State failed to produce, the trial court did not err in denying appellant’s motion to suppress under OCGA § 17-7-210 or on the various assorted constitutional grounds asserted by appellant relative to improper custodial interrogation.

3. Appellant contends the trial court erred in denying his motions for directed verdict and new trial, asserting the general grounds. Appellant maintains that Officer Britt did not see the vehicle in motion, did not see appellant in the car, did not witness the accident and did not establish the time the accident occurred; nor did anyone else witness the accident. Moreover, despite the stipulation, appellant contends the State did not establish that his intoxication level was 0.12 grams during the time he had physical control of the vehicle, and as a result of these deficiencies, there was insufficient evidence that appellant operated the vehicle under the influence of alcohol.

“Appellant is correct that to be guilty of the offense of driving under the influence one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol. [Cit.] However, ‘ “(i)t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence.” (Cits.)’ [Cit.] ‘ “In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.” (Cit.)’ [Cit.]” Johnson v. State, 194 Ga. App. 501 (1) (391 SE2d 132) (1990).

Appellant’s argument with regard to the insufficiency of the circumstantial evidence totally belies his admission to Officer Britt that he drove the car off the road and his stipulation to the blood test results. These admissions together with the direct evidence provided by Officer Britt describing appellant’s demeanor and the additional circumstantial evidence adduced at trial amply justified a finding by the jury that appellant was in actual physical control of the vehicle when it was driven off the road and that appellant was intoxicated while driving in accordance with the conviction of OCGA § 40-6-391 (a) (1) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

It is also urged that because Officer Britt indicated on the traffic citation that the incident occurred in the City of Atlanta, Fulton County, that proper venue was not established at trial; however, Officer Britt’s testimony at trial that the accident occurred in the City of Atlanta, DeKalb County went unchallenged. Thus, venue in DeKalb State Court was properly established beyond a reasonable doubt. See Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384) (1989).

It is unnecessary for us to consider the sufficiency of the evidence with respect to the conviction under OCGA § 40-6-391 (a) (4) because convictions cannot be entered on both DUI charges predicated on the same conduct, and the evidence was sufficient to sustain the conviction on one of the charges. Sanders v. State, 176 Ga. App. 869 (4) (338 SE2d 5) (1985); Love v. State, 195 Ga. App. 392 (1) (393 SE2d 520) (1990).

4. Appellant next charges that the admission of the mug shot, taken when he was booked, was without proper foundation, resulting in prejudice far outweighing any probative value. “ ‘Before a photograph may be introduced in evidence, it must be authenticated by a showing that it is a fair and truthful representation of what it purports to depict. (Cit.) “The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court. (Cits.)” (Cit.)’ [Cit.]” Turner v. State, 181 Ga. App. 531 (353 SE2d 13) (1987). The mug shot was identified by Offleer Britt as fairly and accurately representing appellant’s appearance on the morning of his arrest. Appellant’s objections to the photograph at trial asserted lack of foundation and relevance. This court has upheld the admission of mug shots to “illustrate [a] defendant’s physical appearance shortly after his arrest” in cases in which an incident of driving under the influence is being re-created for the jury and the defendant’s appearance is “some evidence” of his intoxication. Farmer v. State, 180 Ga. App. 720 (2) (350 SE2d 583) (1986). The photograph was clearly relevant to the issue of appellant’s intoxication, and the court did not err in allowing its admission. The trial transcript does not reflect that appellant’s contentions — that the photograph was inflammatory, put his character in issue and deprived him of the presumption of innocence — were raised below. Hence, they were not preserved for appellate review and will not be considered by this court. See Norman v. State, 197 Ga. App. 333 (2) (398 SE2d 395) (1990).

5. (a) In his fifth enumeration of error, appellant raises various objections to the trial court’s charge to the jury, including the court’s omission of the three-hour requirement in its definitional charge on OCGA § 40-6-391 (a) (4). Although the omission of this essential element of the statute constituted error, it does not require reversal based on our discussion in Division 3.

(b) Appellant also argues that the court erred in defining “direct evidence.” This contention is without merit, as the charge given was the definition of direct evidence set forth in OCGA § 24-1-1 (3).

(c) Appellant asserts the court erred in failing to give his requested charges on mere presence and on the failure to deny being the driver not constituting an admission. However, “the charge[s], as requested, [were] not adjusted to the evidence, [were] inappropriate, and [were] not applicable in the case sub judice. [Cits.]” Cook v. State, 195 Ga. App. 461, 462 (1) (394 SE2d 121) (1990).

(d) The trial court refused to give appellant’s requested charges on impeachment by contradictory and prior inconsistent statements on the basis that there was no evidence to justify the charge; however, the court’s instruction did include a charge on the credibility of witnesses. “Although the trial court did not charge in the language requested by the appellant, the charge given covered substantially the same principles.” Ross v. State, 192 Ga. App. 850, 851 (3) (386 SE2d 721) (1989).

(e) Appellant also complains that the trial court erred in charging, as requested by the State, that “it is not necessary for the State to show that the accused was drunk. It is sufficient if the State shows, beyond a reasonable doubt, that the accused was under the influence of alcohol as charged, to the extent that it was less safe for him to drive a car. . . .” In a single statement, appellant states that the language was inflammatory and imprecise in the light of statutory requirements, without elaboration or citation of authority. The particular instruction, which was based on charges considered by this court in Harper v. State, 91 Ga. App. 456 (2) (86 SE2d 7) (1955) and Flanders v. State, 97 Ga. App. 779 (2) (104 SE2d 538) (1958), was a proper statement of the law under earlier statutes, and “[a]ssumming arguendo that [the court erred in giving the charge], ‘we find that it is highly probable that any error in the charge did not contribute to the judgment in this case, and thus any such error was harmless. (Cit.)’ [Cit.]” Ross, supra at Division 4.

(f) Relying on Paul v. State, 176 Ga. App. 524 (336 SE2d 379) (1985), in which a charge on the statutory presumptions arising from blood-alcohol test results as set forth in OCGA § 40-6-392 (b) was at issue, appellant claims that the court erred in failing to charge that presumptions in the DUI statute are rebuttable. “‘[T]his court has held that where there has been no written request to charge, failure to give the charge is not error. (Cits.)’ [Cits.]” Lamb v. State, 196 Ga. App. 665, 667 (3) (396 SE2d 497) (1990). Moreover, in view of the stipulation to the test results, in the instant case, it is apparent that the evidence in this case would not have supported such a charge.

6. Appellant next enumerates as error the trial court’s consideration of evidence of prior convictions at the pre-sentence hearing without his prior knowledge. OCGA § 17-10-2 “provides that once a jury has returned a verdict of guilty in a felony case, the judge shall conduct a pre-sentence hearing and only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. This code section applies only to felony cases, and appellant was convicted here of a misdemeanor.” Wyatt v. State, 179 Ga. App. 327, 329 (5) (346 SE2d 387) (1986). Therefore, the court did not err in considering the prior convictions.

7. Finally, appellant contends the sentence imposed by the trial court was confusing, ambiguous and improper as a matter of law. At the end of the pre-sentence hearing, the trial judge orally pronounced that appellant was sentenced to serve 12 months and pay a $1,000 fine on Count Two. After imposing the sentence, the court explained that the sentence was the maximum which could be imposed in a one count misdemeanor sentence. The written sentence imposed the same term of confinement and amount of fine but reflected that the verdict of guilty was returned on Counts One and Two. The State makes a similar argument that the written sentence is ambiguous as it does not specify upon which count the sentence was to be served and proposes a remand to the trial court for re-sentencing.

As we recognized in Division 3, “a defendant may be prosecuted for multiple offenses established by the same criminal conduct, [but] he may not be convicted of moré than one crime if the crimes charged are the same in law or fact. [Cits.]” Sanders, supra at 871. Even though the court imposed a single sentence, the record indicates that the sentence applied to both DUI counts in the accusation. The sentence should reflect specifically upon which count appellant was sentenced and therefore, must be vacated, and the case remanded for re-sentencing on Count One — OCGA § 40-6-391 (a) (1). Sanders, supra at 870; Tomlin v. State, 184 Ga. App. 726 (3) (362 SE2d 489) (1987).

Decided July 9, 1991

Reconsideration denied July 29, 1991

Alice C. Stewart, for appellant.

Ralph T. Bowden, Jr., Solicitor, Neal R. Bevans, Debra J. Blum, W. Cliff Howard, Assistant Solicitors, for appellee.

Appellant’s assertion that the trial court erred in failing to conduct an evidentiary hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983) to determine his ability to pay the $1,000 fine is without merit as payment of the fine was not a condition precedent to probation, any such determination of such would be in the sole discretion of the judge pursuant to OCGA § 40-6-391 (g), and the record does not reflect that appellant requested such a determination by the court.

Judgment affirmed as to the DUI conviction; judgment vacated as to the sentence and case remanded with direction.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0259.
    GEORGIA KRAFT COMPANY v. FAUST.
    (409 SE2d 247)
   Cooper, Judge.

Plaintiff, Robert Faust, sued defendant, Georgia Kraft Company, for damage done to Faust’s trailer while it was being loaded by defendant’s employees. Plaintiff obtained a jury verdict for general and punitive damages, and defendant appeals from the judgment entered thereon.

Plaintiff, the owner and operator of a tractor trailer truck, contracted with defendant to haul a load of paper. The sequence of events which led to the damage in this case occurred during a span of approximately ten hours, beginning with plaintiff’s arrival at defendant’s loading dock. Plaintiff testified that he backed his trailer up to the loading dock and defendant’s employees proceeded to use a forklift to load plaintiff’s trailer with rolls of paper weighing approximately 7,000 pounds each. Plaintiff testified that he got out of his truck to watch the loading and while on his way to the rear of the trailer, he heard the forklift engine “revving” as if it were moving at a high rate of speed. Plaintiff stated that he saw the forklift move into the trailer with such force that it caused the trailer to drop lower than the dock and then come back level. Plaintiff ran to the rear of the trailer to stop the forklift operator from once again driving into the trailer; however, by the time plaintiff got to the rear of the trailer, the forklift operator had driven into the trailer a second time, and the trailer floor had broken away from the right side wall of the trailer with the forklift still inside. One of defendant’s supervisors who examined the damage ordered that a larger forklift be brought in to get the first forklift out of the trailer. The operator of the large forklift put the forks under the trailer and attempted to raise the trailer floor. According to plaintiff, in the operator’s attempt to raise the trailer floor, he raised and dropped the trailer several times, and in the process broke the trailer floor until it hung almost to the ground. Plaintiff testified that he asked defendant’s supervisor several times to stop the forklift operator from further destroying his trailer but that the supervisor ignored him and continued his effort to retrieve the forklift from the trailer. At defendant’s request, plaintiff got into his truck and unsuccessfully attempted to pull the trailer away from the dock; however, he abandoned that attempt when he realized that he could not move the trailer and that any effort to do so would only further damage his trailer. Defendant’s employees then attempted to use a crane to lift the trailer, and when that effort failed, the employees released the trailer causing it to fall to the ground, rupturing the fuel tank and destroying the entire front of the trailer. Defendant’s supervisors then called in a bulldozer to push the trailer and forklift out of the parking lot. Plaintiff testified that he pleaded with the bulldozer operator not to ruin the refrigeration unit on his trailer but that the operator laughed and rammed the bulldozer into the refrigeration unit. At that point plaintiff left the scene. When defendant refused to either buy or rent plaintiff a new trailer, plaintiff settled with his insurance carrier and subsequently commenced this action against defendant.

1. Defendant contends in its first enumeration of error that the trial court erred in refusing to charge the jury on comparative negligence. Defendant argues that plaintiff was negligent in failing to determine if his truck would haul a load of paper and in participating or acquiescing in the attempt to retrieve the forklift from the trailer. One of defendant’s supervisors who saw the truck after the trailer floor caved in testified that the cross-member bars on the truck did not look very thick. The crew leader testified that he arrived on the scene after it had been determined that the trailer was damaged beyond repair. He examined the underside of the trailer and concluded it was not of paper hauling quality. Plaintiff testified that although he generally hauled produce in his truck, on occasion, he had hauled paper of the exact same nature as the paper he was to have hauled for defendant. He also testified that the paper he previously hauled weighed in excess of 42,000 pounds. The evidence reflects that at the time of the accident, only two rolls of paper had been loaded onto plaintiff’s truck, and that the combined weight of the paper and the forklift could not have been more than 30,000 pounds. Plaintiff also testified that he had been present when his trailer was loaded with paper in the past, and that his truck had never before been damaged during loading of the paper. There was no expert testimony to establish that the trailer was not of paper-hauling quality or that the floor collapsed because the trailer was not of paper-hauling quality. Furthermore, there was no evidence that plaintiff negligently acquiesced in defendant’s actions in trying to free the forklift from the trailer or that plaintiff’s one attempt to move the trailer resulted in any damage to the truck. On the contrary, the evidence showed that following the first incident of damage to the truck, when the floor separated from the trailer wall, the remaining damage occurred from defendant’s use of the large forklift, followed by the use of the crane and the bulldozer. We find the evidence cited by defendant to be insufficient to raise an inference of plaintiff’s negligence; therefore, it was not error for the trial court to refuse to charge on comparative negligence. Lovell v. Howard, 182 Ga. App. 891 (2) (357 SE2d 600) (1987).

2. Defendant contends that the trial court erred in not directing a verdict on the issue of punitive damages. OCGA § 51-12-5.1 provides that “[pjunitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” (Emphasis supplied.) There was evidence from plaintiff that he repeatedly pleaded with defendant’s employees not to destroy his truck and that they proceeded to exercise little or no care to preserve his trailer during their attempt to retrieve the forklift from the trailer. Defendant put forth evidence that it operated its equipment in a normal manner and made a reasonable attempt to free the forklift from the trailer. Questions of credibility are matters for the jury’s determination, Holbrook Contracting v. Tyner, 181 Ga. App. 838 (1), 840 (354 SE2d 22) (1987), and it is clear that the jury resolved such questions in plaintiff’s favor. We find that the jury could have determined plaintiff’s testimony established by clear and convincing evidence that defendant showed an entire want of care of plaintiff’s trailer and raised a presumption that defendant was consciously indifferent to the consequences. Accordingly, we find no error with the trial court’s denial of defendant’s motion for directed verdict on the issue of punitive damages.

Decided June 28, 1991

Reconsideration denied July 29, 1991.

Jones, Cork '& Miller, Carr G. Dodson, Bradley J. Survant, for appellant.

Brown, Katz, Flatau & Hasty, S. Phillip Brown, for appellee.

3. Defendant enumerates as error the trial court’s refusal to charge, as requested, that “mere negligence, although gross, will not alone authorize a recovery of punitive damages.” The requested charge was a correct statement of the law and applicable to the issues in the case. BLI Constr. Co. v. Debari, 135 Ga. App. 299 (2) (217 SE2d 426) (1975). However, since the court instructed the jury verbatim according to OCGA § 51-12-5.1, we cannot conclude that the jury did not have appropriate instructions regarding the imposition of punitive damages. Therefore, we find no error in the trial court’s failure to give the requested charge.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0466.
    TOLLESON LUMBER COMPANY et al. v. KIRK. AMERICAN INTERSTATE INSURANCE COMPANY et al. v. SOUTHERN GENERAL INSURANCE COMPANY et al.
    A91A0662.
    (409 SE2d 260)
   Cooper, Judge.

We granted these discretionary appeals to address the issue of whether under OCGA § 34-9-206, a motor vehicle personal injury protection (“PIP”) carrier which covered certain medical expenses of the claimant, can be a party at interest to a workers’ compensation claim.

The claimant, Roy Kirk, filed a claim for workers’ compensation benefits alleging an injury which arose in the course of his employment with his statutory employers Jackie Smith d/b/a Smith Trucking Company, George Smith d/b/a Smith Logging Company and Tolleson Lumber Company, Inc. While the claim was pending, Smith Trucking Company’s PIP carrier, Southern General Insurance Company (“Southern General”), covered medical expenses incurred by claimant. Subsequently, the ALJ entered an order stating that upon request, Southern General was added as a party at interest to the claim. The original parties, claimant, his employers and their respective insurers, filed a joint objection to the joinder of Southern General as a party in interest on the grounds that OCGA § 34-9-206 only provided for joinder of a group insurance company or “other health care provider.” The ALJ entered an order dismissing Southern General as a party at interest, concluding that the term “health care provider” as used in OCGA § 34-9-206 referred only to those entities which provided treatment. Southern General appealed the ALJ’s decision to the full board and while the appeal was pending the full board approved a settlement agreement entered into between the original parties. Southern General was not a party to the settlement proceedings. Southern General then appealed the decision of the full board approving the settlement to the superior court. The superior court entered an order setting aside the decision of the full board approving the settlement and remanded the case to the full board for Southern General to be included as a party at interest. The superior court specifically found that Southern General was an “other health care provider” within the meaning of OCGA § 34-9-206. The full board apparently approved the settlement again, although this order is not in the record, and on appeal of that decision, the superior court entered another order setting aside the full board’s approval of the settlement and again found that Southern General was an “other health care provider.” In Case No. A91A0466, appellants, the employers and their respective insurers, appeal the superior court’s first order setting aside the decision of the board, and in Case No. A91A0662, appellants appeal the superior court’s second order.

1. Appellants first contend that the trial court erred in ruling that the full board did not have authority to approve the settlement while Southern General’s appeal of the ALJ’s decision dismissing Southern General as a party was pending before the full board. As an interested party, Southern General would have had the right to move for a hearing in the claimant’s case. Also, under Rule 15 (a) Southern General would have been included in the caption to the settlement agreement; therefore, Southern General could have made known to the board that it sought reimbursement for medical expenses paid on behalf of the claimant. Although the board in its discretion may have approved the settlement in spite of any objection it may have had to it, we conclude that the board’s approval of the settlement while Southern General’s appeal was pending deprived Southern General of any meaningful opportunity to exercise its rights as a party at interest. Therefore, we find appellant’s first enumeration of error to be without merit.

2. Appellants next contend that the superior court erred in concluding that Southern General should be included as a party at interest within the meaning of OCGA § 34-9-206 (a). Prior to the 1990 amendment, which is not applicable in this case, OCGA § 34-9-206 (a) provided: “A group insurance company or other health care provider who covers the costs of medical treatment for a person who subsequently files a claim under this chapter may give notice in writing to the board . . . that such provider is a party at interest.” The amended statute provides: “Any party to a claim under this chapter, a group insurance company, or other health care provider who covers the costs of medical treatment for a person who subsequently files a claim under this chapter may give notice in writing to the board . . . that such provider is or should be a party at interest as a result of payments made in the employee’s behalf for medical treatment.” Appellants argue that the phrase “other health care provider,” as used in the applicable statute, is limited to those facilities which actually provide treatment to the claimant. We find nothing in the wording of the statute which would limit its applicability as appellants suggest. The only requirement of the statute is that the provider must have covered the costs of medical treatment. Southern General having covered the costs of claimant’s medical treatment, we hold that the superior court properly found that it was an “other health care provider” within the meaning of the statute.

Appellants also argue that the statute only applies when the workers’ compensation claim is filed subsequent to the payment of medical benefits by the other health care provider. Under appellants’ construction of the statute, a provider who covers the costs of medical expenses for a person before that person files a workers’ compensation claim, cannot recover even if the provider had no knowledge that the person had filed a claim. We believe that such a construction would lead to unreasonable results. “ ‘(I)n construing [a] statute so as to give effect to the legislative intent a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute.’ [Cit.]” Mansfield v. Pannell, 194 Ga. App. 549, 551 (390 SE2d 913) (1990). Furthermore, “ ‘ “[i]t is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Cit.) “The construction must square with common sense and sound reasoning.” (Cit.)’ [Cit.]” Stacey v. Caldwell, 186 Ga. App. 293 (1), 295 (367 SE2d 73) (1988). The construction proposed by appellant would allow similarly situated PIP carriers to be treated differently based on when the claimant filed his workers’ compensation claim. Such a distinction is without a rational basis and raises serious equal protection questions. Cf. State Farm &c. Ins. Co. v. Five Transp. Co., 246 Ga. 447 (1) (271 SE2d 844) (1980). We conclude that the trial court properly construed the statute as not requiring that the benefits be provided before the claim is filed.

For the foregoing reasons, we affirm the decision of the trial court.

Judgments affirmed.

Birdsong, P. J., and Pope, J., concur.

Decided July 5, 1991

Reconsideration denied July 29, 1991.

Lowendick & Speed, J. Wallace Speed, Charles G. Hoey, David C. Woll, Jr., for Tolleson Lumber and Lumbermen’s Underwriting.

Malcolm G. Lindley, for Kirk.

Swift, Currie, McGhee & Hiers, Joseph A. Munger, for Smith and American Interstate Insurance.

Jones, Cork & Miller, Rufus D. Sams III, Dorothy J. Adams, for Southern General Insurance.


author: Beasley, Judge.

text:
    A90A0704.
    POWELL v. THE STATE. BRYANT v. THE STATE.
    A90A0705.
    (410 SE2d 53)
    Decided July 16, 1991
    Reconsideration denied July 29, 1991

      Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Lindsey & Jacobs, Tamara Jacobs, for appellants.

      John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.
   Beasley, Judge.

The Supreme Court granted certiorari to our affirmance of the trial court’s judgment in these two cases. See Dixon v. State, 196 Ga. App. 15 (395 SE2d 577) (1990). After review, the Supreme Court vacated our judgment and entered orders which remanded these cases to this court “for further consideration in light of this Court’s opinion in Lattarulo v. State,” 261 Ga. 124 (401 SE2d 516) (1991).

After further consideration in light of Lattarulo and Brannan v. State, 261 Ga. 128 (401 SE2d 269) (1991), we apprehend no reason to modify our former judgments and opinion and therefore readopt them.

Judgment affirmed.

Pope and Andrews, JJ., concur.


text:
    A91A0724.
    YOUNG v. GRIFFIN LUMBER COMPANY et al.
    (409 SE2d 264)
   Beasley, Judge.

Young sued Griffin Lumber Company, Wendell Merritt, and Sercer Logging Company for conversion of timber allegedly cut by them on land he owned.

Merritt purchased property from Young in January 1980. Young’s complaint is that Merritt did not cut timber from his own tract, but rather from an adjacent tract owned by Young. At trial, Young sought damages representing the value of the timber, plus attorney fees.

Merritt denied the material allegations of the complaint and filed a counterclaim for abusive litigation. Griffin Lumber and Sercer answered the complaint and filed a cross-claim against Merritt, on grounds that they had purchased the timber from him and he agreed to indemnify them from any loss due to damages sought by Young.

The evidence showed that the tract of land purchased by Merritt consists of 130 acres more or less and lies to the east of an adjacent tract owned by Young. A portion of the boundary line between the two tracts consists of the main run of the Alapaha River. Young and Merritt, being uncertain as to the location of this boundary, commissioned a survey of the property prior to closing the sale. Based on this survey, the main run of the river was marked with orange flags. Merritt and the surveyor met with Young following the survey, and they agreed to the boundary line established by the survey.

During the latter part of 1987, appellees began cutting timber from Merritt’s tract generating revenue significantly in excess of the amount of money he had paid for the tract. Young claimed that the timber was being cut from his property. He instructed a different surveyor to mark the main run of the river, which was done with yellow flags.

At trial, Merritt, as well as Griffin Lumber and Sercer, moved for directed verdict. The trial court reserved ruling, and the jury returned a verdict in favor of defendants. Merritt’s counterclaim produced a verdict and judgment in favor of Merritt for $5,000.

1. Young enumerates error on the trial court’s charge to the jury to the effect that an unascertained boundary line between coterminous properties may be established by oral agreement executed by the erection of monuments or markings done with the knowledge and mutual assent of the respective owners. It is taken from Greenway v. Griffith, 225 Ga. 632, 636 (4) (170 SE2d 423) (1969). See also Tietjen v. Dobson, 170 Ga. 123, 124 (3) (152 SE 222) (1930).

Young’s contention is that this proposition of law does not apply because the survey commissioned by the parties was to determine the number of acres in the tract and not the boundary line. The evidence shows that the survey was commissioned for both purposes. In addition, a recitation in the deed stated that the property was being sold by the tract and not by the acre and that there would be no adjustment in price if a survey disclosed an actual acreage at variance from 130. Appellant’s contention fails.

Decided July 9, 1991

Reconsideration denied July 29, 1991

Reinhardt, Whitley & Wilmot, John R. Reinhardt, Bob Reinhardt, for appellant.

Jay, Sherrell & Smith, Robert E. Sherrell, Roberts, Roberts & Ingram, Lawrence W. Roberts, for appellees.

2. Young enumerates error on the trial court’s charge from Cothran v. Burk, 234 Ga. 460, 461 (216 SE2d 319) (1975), to the effect that an unascertained or uncertain boundary line may be established by either: (a) an oral agreement accompanied by actual possession to the line, or (b) by acquiescence for seven years by acts or declarations of the adjoining landowner.

Contrary to Young’s argument, the evidence authorized the jury to find in favor of Merritt under either theory. Moreover, Young requested a substantially identical charge, which precludes his complaint. Moody v. Harris, 170 Ga. App. 254 (1) (316 SE2d 781) (1984).

3. Young enumerates error in the failure to grant his motion for directed verdict as to Merritt’s counterclaim for abusive litigation, governed by Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The court reserved ruling on the motion and then did not rule on it after the jury awarded damages to Merritt on the counterclaim. Young argues that the evidence demanded a finding that he did not engage in abusive litigation.

The jury was instructed that “in respect to any party who asserts a claim with respect to which there exists a complete absencé of any justiciable issue of law or fact, that it reasonably could not be believed that a court would accept the asserted claim, that lacks substantial justification, or is imposed for delay or harassment, shall be liable to an opposing party who suffers damages thereby.” See Yost, supra at 96 (13); OCGA § 9-15-14 (a), (b). No exception was raised to this charge.

From our review of the evidence in this case the jury could reasonably infer that Young’s suit suffered from one of the defects described in Yost, supra at 96 (13), thereby authorizing the award of damages. See Whitley v. Bank South, 185 Ga. App. 896, 901 (4) (366 SE2d 182) (1988).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A0786.
    SAPP v. EFFINGHAM COUNTY BOARD OF EDUCATION et al.
    (409 SE2d 89)
   McMurray, Presiding Judge.

On November 23, 1987, plaintiff-appellant John Darien Sapp and defendant John Matthew Kessler had a confrontation in the lunchroom of defendant-appellee Effingham County High School, where both were students. Kessler was 14 years of age and Sapp, a senior, was over 18. Sapp deposed that Kessler initiated the altercation by threatening to spray him with a can of deodorant, after which words were exchanged. During a brief scuffle, Kessler cut Sapp with a pocketknife on the left hand between the third and fourth knuckles. A guidance counselor accompanied Sapp to the school office where first aid was administered and the incident was reported to defendant-appellee Elizabeth Helmly, an assistant principal at the school. Helmly was told by appellant and a friend who accompanied him to the office that they did not know the boy who cut Sapp, but that his first name might be “Matt.” Helmly discussed the situation with Sapp and emphasized that he must let her know immediately if he discovered the student’s name or any other information. She also tried to impress upon him the seriousness of the incident and the danger to Sapp if he tried to settle the matter by himself. Sapp agreed to report any information he discovered to Helmly. Helmly spent the remainder of the day attempting to identify “Matt” by having Sapp look in the door of each room where there were students who had the same lunch period, and also by contacting other teachers to inquire whether they had a student named “Matt” who fit the description provided her. However, she was unable to ascertain his identity.

At the completion of classes, Sapp went to the school parking lot, walked past the car of the friend who had driven him to school and went directly to the automobile where Kessler was standing. Sapp asked him, “Why in the hell did [you] cut me?” Sapp, Kessler and Kessler’s older brother began arguing and then started fighting, and Kessler retrieved a larger knife from the back seat of his brother’s car and slashed Sapp from his mid-back to the rib cage, seriously injuring him. Helmly did not report the lunchroom incident to the school principal or to the police until after the parking lot stabbing.

Sapp brought the instant action against Kessler, his father Joseph Kessler, Helmly and the Effingham County Board of Education. The complaint alleged, inter alia, that Helmly, who was in charge of discipline at the high school, failed to exercise ordinary care in attempting to locate and remove Kessler from the school premises; and that the Board was negligent in employing, training and supervising her. Helmly and the Board moved for summary judgment, which the trial court granted with the express proviso that the ruling did not affect the plaintiff’s rights as to the other named defendants. Sapp appeals. Held:

1. Sapp’s response to the motion for summary judgment and his arguments now on appeal are, as noted by the trial court, essentially that Helmly should have taken certain actions in addition to what she did to identify Kessler between the time of the lunchroom and the parking lot altercations so as to prevent the later attack. However, as found by the trial court, the severe injury sustained by Sapp in the parking lot, which is the one for which he seeks recovery, was not attributable to appellees but was the result of a sequence of events initiated by Sapp after school hours. By his own admission, Sapp recognized Kessler as the student who accosted him in the lunchroom and that he intended to fight Kessler when he approached him in the parking lot. Moreover, the fact that Helmly’s investigation did not reveal Kessler’s identity within the three hours between the lunch period and the end of the school day does not reflect upon the quality of the training program for school administrators or of her investigation. The fact that no written guideline was issued to Helmly instructing her to notify the police or Sapp’s parents upon learning that he had received a minor wound from an unknown student is insufficient to prove a claim of negligent training against the Board of Education. As testified by the school principal, who had 17 years experience as an administrator, it is impossible to provide a specific curriculum for all eventualities, and Sapp has failed to show that with any different training Helmly would have discovered Kessler’s identity or prevented the later confrontation, particularly without Sapp’s cooperation.

“ ‘Before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. [Cit.]’ [Cit.]” Bulloch County Hosp. Auth. v. Parker, 196 Ga. App. 438, 439 (396 SE2d 37). “Assumption of the risk is á complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. [Cits.]” Menendez v. Jewett, 196 Ga. App. 565, 566 (1) (396 SE2d 294). “ ‘Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication ...[,] where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.’ (Punctuation and citations omitted.) [Cit.]” Taylor v. Bloodworth, 198 Ga. App. 186, 187 (400 SE2d 691). “The evidence would not authorize a finding that appellee [s] breached a duty owed to appellant to protect [him] from the attack in the school [parking lot.]” Cooper v. Baldwin County School Dist., 193 Ga. App. 13 (1), 14-15 (386 SE2d 896). It follows that the trial court correctly granted summary judgment in favor of Helmly and the Effingham County Board of Education.

Decided July 16, 1991

Reconsideration denied July 29, 1991

Marshall R. Wood, for appellant.

Harben & Hartley, Phillip L. Hartley, Brennan, Harris & Rominger, Richard J. Harris, for appellees.

2. Appellees have filed a supplemental brief in which they point out that subsequent to the filing of their motion for summary judgment on February 16, 1990, a proposed amendment to the Georgia Constitution was approved by referendum vote which would entitle Effingham County Board of Education to the defense of sovereign immunity, as the purchase of liability insurance would no longer act as a waiver. However, because we have already ietermined that appellant has shown no acts of negligence on the part of appellees that were the proximate cause of the injury for which he sought to recover, it is unnecessary for us to consider this argument.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0893.
    MATTOX v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (409 SE2d 267)
   Birdsong, Presiding Judge.

Naomi Mattox appeals from the final judgment entered in favor of appellee and denying appellant’s motion for new trial.

Appellant was a regular rider of MARTA for two-and-one-half years prior to the incident. She was injured when, after she boarded the train, her foot became lodged in the approximate 3-3/4 inch “gap” between the side of the train and the platform. Held:

1. In this state, a common carrier of passengers is not an absolute and unqualified insurer of the safety of its passengers. Rather, “[a] carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” OCGA § 46-9-132.

“[0]n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment” (Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746)); likewise, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 184 (129 SE2d 408). The standard for review of a directed verdict and a judgment n.o.v. are the same: “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554). And, “‘[t]he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard.’ ” F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6).

“It is ordinarily for the jury to determine whether the performance or non-performance of a specific act is in compliance with the duty imposed on a carrier by the provisions of [OCGA § 46-9-132] as to the exercise by it of extraordinary care and diligence. [Cit.] What facts suffice to show the exercise of such extraordinary diligence is ordinarily for the jury.” Modern Coach Corp. v. Faver, 87 Ga. App. 221, 229 (2) (73 SE2d 497). “The rule . . . ‘[i]t is ordinarily a question of fact for a jury whether an owner or occupier of premises has exercised the proper care and diligence in keeping the premises safe for those invited thereon’ is equally applicable to the duty of a carrier to exercise proper care in providing a safe place to board and leave a public conveyance, but the degree of care to be exercised is greater in the latter case.” Columbus Transp. Co. v. Curry, 104 Ga. App. 700, 706 (4) (122 SE2d 584). And where the “verdict is supported by some evidence ... it will not be disturbed by this court.” Id. We find that the posture of the evidence in this case did not demand a verdict in favor of appellant, and that the trial court did not err in denying appellant’s motion for directed verdict and in submitting the issue of appellee/defendant’s liability to the jury. Compare Brooks v. Washington &c. Auth., 861 F2d 1282 (USCA 11th Cir.); Owens v. Washington &c. Auth., CA No. 87-3392 (USDC D.C., March 6, 1990); Sledd v. Washington &c. Auth., 439 A2d 464 (DCCA). Appellant’s first and second enumerations of error are without merit.

2. Appellant’s third enumeration of error is without merit. Appellant’s requested charge number 16, as crafted, was overly broad and confusing. “If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.” Llop v. McDaniel, Chorey &c., 171 Ga. App. 400, 403 (4) (320 SE2d 244). Moreover, the trial court charged the jury that “[o]nce it is shown that a passenger was injured in the process of boarding the train, a presumption arises that MARTA was negligent, and the plaintiff is entitled to recover all of the damages which were proximately caused by such negligence. This presumption may be rebutted by showing that MARTA was at all times in the exercise of extraordinary care or by proving any other defense of the defendant.” See generally Piller v. Hanger Cab Co., 115 Ga. App. 260, 263 (2) (154 SE2d 420); Eason v. Crews, 88 Ga. App. 602, 613 (1) (77 SE2d 245). “ ‘A requested charge is properly refused when “the principle involved (is) substantially covered in the court’s general charge. . . .” ’ ” Milam v. Attaway, 195 Ga. App. 496, 499 (3) (393 SE2d 753).

3. Appellant’s fourth enumeration of error is without merit. The trial court instructed the jury regarding the duty of a carrier of passengers to “exercise extraordinary diligence to protect the lives and persons of [the carrier’s] passengers” (OCGA § 46-9-132), and precisely defined extraordinary diligence as follows: “the extraordinary diligence due by a carrier of passengers to those passengers is that extreme care and caution which very prudent and thoughtful persons exercise under like circumstances.” This instruction substantially covered the legal principles contained in requested charge number 11. Milam, supra.

4. Appellant’s contention that the trial court erred in refusing to give its requested charge number 12 is without merit. The first paragraph of appellant’s requested charge number 12 is both confusing and misleading, particularly as it states “[t]he law does not fix an exact or a precise definition of . . . extraordinary diligence” when the charge given the jury contained a precise definition of extraordinary diligence as above discussed. “ ‘ “ ‘A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.’ (Cits.)” (Cits.)’ [Cit.]” (Emphasis supplied.) Annis v. Tomberlin &c. Assoc., 195 Ga. App. 27, 34 (7) (392 SE2d 717); accord Llop, supra.

5. The first paragraph of appellant’s request to charge number 13 was substantially covered by the trial court’s charge to the jury regarding MARTA’s duty to exercise “extraordinary diligence,” by its definition of the term “extraordinary diligence,” and by its charge as to the arising of a rebuttable presumption of negligence when it is shown a passenger was injured in the process of boarding the train. Regarding the second paragraph of the requested charge, that portion thereof relating to circumstances where “MARTA has not allowed a passenger a sufficiently reasonable time and opportunity to enter the train without danger” neither was reasonably raised by the evidence nor tailored thereto. Appellant in effect testified she had entered the train without incident, but then for some reason unknown to her, suddenly found her leg lodged within the gap. Only speculation unsupported by fact appears in the record regarding what caused appellant’s leg to become so lodged, as appellant admitted repeatedly during her trial testimony that she did not know how the incident occurred. As a portion of the charge was inapt, the trial court did not err in declining to give the requested charge to the jury. Annis, supra; Llop, supra.

6. The trial court did not err in declining to give appellant’s request to charge number 20. The trial court charged the jury that negligent or wrongful acts may be established either by direct or circumstantial evidence. The court further charged that “[i]n order for a party to be liable for negligence, it is not necessary that the party should have been able to anticipate the particular consequences which have resulted. It is sufficient if in ordinary prudence that party might have foreseen that some injury would result from the party’s act or omission or that consequences of a generally injurious nature might result.” This latter charge is virtually identical to appellant’s request to charge number 8. Appellant’s request number 20 appears to be but a particularized application of the broad principles of foreseeability and proof of an ultimate issue by circumstantial evidence. Cf. Renner v. State, 260 Ga. 515, 518 (3b) (397 SE2d 683) (flight charge as a particularization of a general charge on circumstantial evidence). Assuming arguendo error occurred in failing to give appellant’s charge request number 20, it was harmless, as the jury was charged regarding the basic legal principles underlying this particularized charge request.

7. While it would not constitute error to refuse to charge the jury regarding accident (Benson v. Hunter, 184 Ga. App. 40 (360 SE2d 612)), neither under the facts of this case was it error to so charge the jury (see Smoky, Inc. v. McCray, 196 Ga. App. 650 (5) (396 SE2d 794)). “ ‘The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable.’ Pitts v. Bode, 198 Ga. App. 787, 789 (3) (403 SE2d 66). In this case, appellant’s own admissions in court establish that she does not know exactly what caused her to fall into the gap. A finding of negligence on the part of appellee, assuming arguendo it was authorized by the evidence, certainly was not demanded. (See Division 1 above.) Accordingly, the trial court did not err in giving a charge on the defense of legal accident. Whitehead v. Coffey, 198 Ga. App. 587 (402 SE2d 311).

8. As a general rule, the admission of evidence is a matter which rests largely within the sound discretion of the trial court (West v. Nodvin, 196 Ga. App. 825, 826 (2b) (397 SE2d 567)). “ ‘Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ ” West, supra at 828 (3b). The trial court did not abuse its discretion by admitting the testimony of appellee’s engineering expert regarding the practice he observed of several other transit systems not posting warning signs regarding platform gaps. Additionally, appellant has failed to provide any citation of legal authority to support this particular enumeration of error. “The persuasiveness of appellant’s assertion of error, unsupported by any citation of legal authority, is far from apparent on its face, as it is a general rule under Georgia law, that [if evidence is admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories (see Orr v. Dawson Tel. Co., 35 Ga. App. 560 (2) (133 SE 924)); and, evidence of doubtful relevancy or competency should be admitted (West, supra)]. This court indulges in the presumption that the trial court’s decision is correct, and decisions will not be reversed on argument of error not supported by authority, if authority is available, unless error is apparent without further research. In the case before us, the error is not apparent without further research, accordingly, we presume the trial court has not erred.” (Citations, punctuation and emphasis omitted.) Hertz Corp. v. McCray, 198 Ga. App. 484, 487 (4) (402 SE2d 298).

Decided July 11, 1991

Reconsideration denied July 29, 1991

Glenville Haldi, for appellant.

Anthony M. Thomasson, Daniel P. Johnson, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A0905.
    SMITH v. MANNS et al.
    (409 SE2d 270)
   Sognier, Chief Judge.

Gregory and Thelma Manns brought suit against Joseph C. Smith, Jr. alleging fraud resulting in the loss of their home through foreclosure proceedings. Following Smith’s failure to respond to discovery, the trial court granted the plaintiffs’ motion to strike Smith’s answer, and entered an order which granted a default judgment against Smith as to liability, reserved the issue of damages for trial, and prohibited Smith from opposing certain of the plaintiffs’ claims or introducing certain evidence. Smith’s motion to set aside that order was denied, and a bench trial was held to determine damages. After hearing evidence, the trial court awarded the plaintiffs $29,132 in compensatory and $20,000 in punitive damages. Smith appeals.

1. In his first enumeration, appellant contends the trial court’s denial of his motion to set aside the order striking his answer and entering judgment for appellees as to liability was erroneous because appellant was protected from the obligation to respond to discovery requests by the automatic stay provision of the Bankruptcy Code, which stay appellant maintains was in effect on the date of the missed deposition that prompted appellees’ motion for sanctions.

Although appellant’s motion to set aside does not recite which subsection of OCGA § 9-11-60 (d) is relied on, no allegation is made therein of lack of jurisdiction, see OCGA § 9-11-60 (d) (1), or a nonamendable defect on the face of the record, see OCGA § 9-11-60 (d) (3), and it is clear that these subsections are inapplicable. Accordingly, we will review the propriety of the denial of appellant’s motion under OCGA § 9-11-60 (d) (2), which provides that “[a] motion to set aside may be brought to set aside a judgment based upon . . . [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]”

(a) The record reveals that appellees’ motion for sanctions was filed on July 14, 1988, the day after appellant failed to appear at his properly noticed deposition, and was granted on December 6, 1988. In support of his December 30, 1988 motion to set aside the default judgment, appellant produced a July 15, 1988 order of the bankruptcy court dismissing appellant’s Chapter 13 bankruptcy petition. Thus, appellant was arguably protected by the stay on July 14, 1988, the day of the scheduled deposition. (We note that although the bankruptcy dismissal order was entered on July 15, 1988, the hearing at which the bankruptcy judge ordered the petition dismissed was held on July 12, 1988.) However, at the time their motion was filed appellees believed, and represented to the trial court, that the bankruptcy petition had been dismissed. This belief was based both on a notice from the bankruptcy court dated April 28, 1988 informing appellees, as creditors, that appellant’s petition “stood dismissed without further order of the Court if no written objection was made within 20 days of the entry of the order,” and on the trustee’s statement during a telephone call with appellees’ counsel on May 19, 1988 (after the 20 days had elapsed) that his records indicated the case stood dismissed. There is no suggestion in the record that appellees deliberately perpetrated a fraud on the court, and at the time it was entered the trial court’s order granting appellees’ motion for sanctions was supported by uncontroverted evidence that the bankruptcy petition had been dismissed, which was presented to the trial court in good faith by appellees. Consequently, we find no evidence of fraud to serve as a basis for setting aside the order. See generally Moore v. Barfield, 189 Ga. App. 348, 349 (1) (375 SE2d 623) (1988).

(b) Neither could appellant have qualified for relief under OCGA § 9-11-60 (d) (2) based on either “accident” or “mistake.” Appellant admits receiving all pleadings and notices, and thus must have known or should have known when the motion for sanctions was filed and the default judgment on the issue of liability entered. “This court has held that an ‘accident’ is an event which is not proximately caused by negligence, but arises from an unforeseen or unexplained cause. [Cit.] Since the failure to [appear at his scheduled deposition] is not unexplained and, from the record in this case, appears to have as its cause [appellant’s] neglect of [appellees’] suit, that ground is not available to appellant.” Moore, supra at 349 (2). Similarly, since appellant’s “failure to appear was due solely to a mistake on the part of appellant . . . , [mistake] does not afford a basis for relief. [Cits.]” McCullough v. Molyneaux, 163 Ga. App. 352, 354 (294 SE2d 560) (1982). See Moore, supra.

Decided July 15, 1991

Reconsideration denied July 29, 1991.

Joseph Smith, pro se.

Charles R. Bliss, for appellees.

(c) “[W]here appellant uses a motion to set aside the judgment ... he is precluded from using the ground which he had known ór could have discovered through reasonable diligence.” Camp v. Fidelity Bankers &c. Ins. Co., 129 Ga. App. 590-591 (1) (200 SE2d 332) (1973). Because appellant was served with the motion for sanctions and the order granting default judgment as to liability, he could have responded to the motion or applied for leave to appeal the default judgment. Instead, he remained silent. Accordingly, any “acts of the adverse parties],” (appellees,) were not “unmixed with the negligence or fault of [appellant,] the movant,” OCGA § 9-11-60 (d) (2), and the trial court did not err by denying appellant’s motion to set aside the judgment. Camp, supra.

2. In his remaining two enumerations of error, appellant contends that no evidence was presented at the hearing on damages to support the amount of compensatory or punitive damages awarded to appellees by the trial court. The record does not include a transcript of that hearing, however, and in the absence of a transcript, we cannot consider enumerations of error based on the evidence or proceedings at trial. Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1000.
    SUBSEQUENT INJURY TRUST FUND v. LUMLEY DRYWALL et al.
    (409 SE2d 254)
   Birdsong, Presiding Judge.

We granted this first-impression discretionary appeal to determine whether the trial court erred in affirming the determination of the Workers’ Compensation Board (“the board”) that a sole proprietor who elects workers’ compensation coverage as an “employee” under OCGA § 34-9-2.2 is an “employer” for purposes of reimbursement from the Subsequent Injury Trust Fund (“the Fund”), which was established by OCGA § 34-9-350 “to encourage the employment of the handicapped by protecting employers from excess liability for compensation when an injury to a handicapped worker merges with a preexisting permanent impairment. . . .”

The claimant is Jimmy Lee Lumley, the sole proprietor of Lumley Drywall. He claimed and was awarded compensation from the Fund on the basis of a back injury, as to which it was found he had a preexisting permanent impairment so as to qualify him for compensation from the Fund. The Fund contends compensation in this case is not within the iptent and purpose of the law in establishing the Fund to encourage employment of handicapped persons. The board, in granting the award as within “board policy,” relied upon OCGA § 34-9-2.2, which allows a sole proprietor to elect to be included as an “employee” if he is actively engaged in the business, which election entitles him to “employee benefits.” The board reasoned that OCGA § 34-9-361 allows the employer (Mr. Lumley for Lumley Drywall) to reach an informed conclusion that the “employee” (Mr. Lumley) had a prior impairment; that is, the board held that since Mr. Lumley claims he knew he had a prior back impairment, he “knew” the employee (himself) was handicapped when he was employed and therefore is entitled to compensation from the Fund to protect the “employer” from excessive compensation.

The Fund argues that the “knowledge requirement” as to the employer cannot be met by a sole proprietor in the act of hiring himself as an employee; that is, that OCGA § 34-9-2.2 cannot be relied upon to convert the employer/sole proprietor into an “employee” for the purpose of enabling the sole proprietor to claim that when, as “employer,” he hired himself, he had knowledge that he had a prior impairment so as to be allowed to recover benefits from the Fund. Held:

Although the Workers’ Compensation Act is in derogation of common law, it is highly remedial in nature and should be liberally construed with a view of applying the beneficent purposes of the Act, so as to effectuate its humane objectives and its purpose, and to extend them to every class of workman and employee that can fairly be brought within the provisions of the Act. Gulf American &c. Co. v. Taylor, 150 Ga. App. 179, 180 (257 SE2d 44); Brannon v. Ga. Bureau of Investigation, 146 Ga. App. 524, 525 (246 SE2d 511); Davis v. Bibb Mfg. Co., 75 Ga. App. 515, 519 (43 SE2d 780). It must be construed liberally in favor of the claimant in order to accomplish its beneficent purposes (General Motors Corp. v. Bowman, 107 Ga. App. 335, 337 (130 SE2d 163)), so as to provide a claimant a remedy under any provision thereof which does not strictly and reasonably prohibit it (see Canton Textile Mills v. Lathem, 253 Ga. 102 (317 SE2d 189), cert. den., _ U. S. _ (105 SC 296, 83 LE2d 231)), and so as to deny benefits to none who reasonably comes within any of its provisions and can fairly be brought within the Act. See Slaten v. Travelers Ins. Co., 197 Ga. 1 (28 SE2d 280); Gulf American, supra. It is to be given a liberal construction in favor of the rights of the employee. American Cas. Co. v. Herron, 102 Ga. App. 658 (117 SE2d 172).

Nothing in the Act strictly prohibits the interpretation made by the board in this case, in the implementation of “board policy.” According to OCGA § 34-9-2.2, a sole proprietor may elect to be an “employee” under the Act and once a sole proprietor makes the election therein provided, he shall “be entitled to the employee benefits . . . prescribed in this chapter.” (Emphasis supplied.) One of the employee benefits granted is the right to benefits from the Subsequent Injury Trust Fund, by an employee who is hired by the employer with knowledge that the employee has a preexisting permanent impairment. We find nothing in the Act which would withhold these benefits from a sole proprietor/employee, on technical grounds that as the “employer” under OCGA § 34-9-2.2 he cannot have knowledge of his own prior impairment. If the evidence shows to the satisfaction of the board that the sole proprietor/employer did hire himself with knowledge of his own impairment, the terms of the Act are satisfied.

As appellees have said, to argue that it is illogical for persons to conclude that they are disabled and to then go into business for themselves begs the question and ignores the problems that disabled persons have in finding suitable employment. It is much easier for a disabled person to go into business for himself than to convince an employer to hire him. Small businesses and sole proprietors provide a significant portion of employment opportunities in our country. We should not discourage self-employment and employment of the handicapped by barring reimbursement from the Fund on the basis of technical distinctions not found in the Act. Instead of encouraging employment, the Fund would seek to create a class of employers who must bear the increased cost of preexisting conditions even though they are required by law to contribute to the Fund. The benefits paid to Lumley because of his injury, including the increased cost due to the preexisting condition, are used to calculate the payments made to the Fund by the sole proprietor and his insurer. OCGA §§ 34-9-358; 34-9-359. If the legislature had seen fit to exclude sole proprietors from coverage by the Fund on the basis that they cannot as “employers” have knowledge of their own prior impairment, or to require that a sole proprietor state in writing his knowledge of his prior impairment when he elects to be an “employee,” it would have been an easy matter to have done so. Compare Griffin v. State, 194 Ga. App. 624 (2) (391 SE2d 675); AAA Bonding Co. v. State of Ga., 192 Ga. App. 684, 685 (2) (386 SE2d 50). We find no compelling reason in this case to do what the legislature has not seen fit to do.

Decided July 2, 1991

Reconsideration denied July 29, 1991

Michael J. Bowers, Attorney General, Wayne P. Yancey, Jeffrey L. Milsteen, Senior Assistant Attorneys General, K. Prabhaker Reddy, Staff Attorney, for appellant.

Goodman, McGuffey, Aust & Lindsey, C. Wade McGuffey, Jr., Kathryn A. Cater, Howard R. Osofsky, for appellees.

As the factual determinations made by the board are supported by evidence, the trial court did not err in affirming the award, under the “any evidence” rule. See Coastal Transport &c. Co. v. Carpenter, 195 Ga. App. 789, 790 (395 SE2d 266).

Judgment affirmed.

Pope and Cooper, JJ., concur.