text:
    A94A2205.
    WILLIAMS v. THURSTON PAULK, INC. et al.
    (455 SE2d 132)
   Ruffin, Judge.

Robert Williams appeals from the superior court’s reversal of the award in his favor by the State Board of Workers’ Compensation.

Williams was a truck driver for appellee Paulk Transport, and he was injured while repairing a company truck and cleaning the area where the company’s trucks and trailers were maintained. In his findings of fact, the ALJ determined that although Williams was primarily an independent contractor truck driver under his agreement with Paulk, he also performed extra duties and accommodations in the capacity of an employee which were unrelated to his duty to transport Paulk’s goods to market. The ALJ concluded that Williams was performing such a task when he was injured and that the injury arose in the course of his role as an employee. The full board affirmed the ALJ’s finding, but the superior court reversed, holding there was insufficient evidence to support the finding and determining that Williams was in fact an independent contractor.

1. Williams contends that the superior court erred in reversing the full board’s decision because there was sufficient evidence to support the finding and award. We agree. “The question of whether a person is an employee is one of fact, and, where there is any evidence to sustain the board’s finding of fact, the trial court should not interfere. [Cits.]” Goolsby v. Wilson, 150 Ga. App. 611, 612 (1) (258 SE2d 216) (1979); Golosh v. Cherokee Cab Co., 226 Ga. 636, 639 (176 SE2d 925) (1970) (determination of whether individual was an employee or independent contractor was question of fact not subject to review if there was any evidence to support board’s finding). Further, “ ‘ “a person can be an independent contractor in one part of his activity and an employee in another.” (Cits.)’ ” McBroom v. Zevallos, 145 Ga. App. 375, 379 (2b) (244 SE2d 19) (1978); Moss v. Central of Ga. R. Co., 135 Ga. App. 904, 909 (219 SE2d 593) (1975).

Viewing the record under the any evidence standard, we find the following evidence supporting the full board’s award: Williams performed a number of tasks for Paulk’s company unrelated to his duty to transport its goods to market. For example, at Paulk’s request he took the company’s trucks to refuel them when there was a sale on gasoline and delivered its trailers to tire shops for service. When asked why he performed these tasks which were not part of his duty to drive a truck, Williams responded that “[w]hen Mr. Paulk asked you to do something, that was just . . . you done it. ... I done it.”

Williams also routinely performed mechanical tasks on company trucks other than his. The evidence showed that Paulk’s salaried employees were aware that Williams performed these tasks, and there was uncontroverted testimony that anyone who worked for the company had to get express permission from Paulk to undertake work. Williams also testified that he considered himself an employee of Paulk’s. When Williams was injured he was repairing a company truck, and he testified that Paulk questioned him about whether the truck would be ready by the next day. Consequently, even if Williams was not working at Paulk’s specific behest when he was injured, the record shows that he was doing so with Paulk’s permission, consent and in furtherance of Paulk’s business. See, e.g., Transus v. Crosby, 196 Ga. App. 880 (1) (397 SE2d 135) (1990) (consent, permission and furtherance of employer’s business considered in determining whether individual was an employee or independent contractor).

Based on the foregoing, the evidence was sufficient to support the board’s finding that independent of Williams’s status as an independent contractor, he also had an employer/employee relationship with Paulk and that his injury arose in the context of that relationship. Accordingly, the superior court erred in reversing the full board on this issue. The judgment is reversed and the action remanded to the superior court with direction to reinstate the award of the full board.

Decided March 13, 1995.

Ashman, Lasky & Cooper, Charles R. Ashman, R. Daniel Price, for appellant.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, George T. Talley, for appellees.

2. The record does not reflect that Williams raised his second enumeration of error, the constitutionality of OCGA § 34-9-1 (2) below. Moreover, in light of our holding in Division 1, we need not address this enumeration.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A2434.
    COFIELD v. THE STATE.
    (455 SE2d 342)
   Andrews, Judge.

Cofield appeals pro se from his Coweta County conviction of one count each of rape and aggravated sodomy committed on his daughter. He was also convicted of incest, but this charge merged with the rape charge, discussed infra.

1. Viewed with all inferences in favor of the jury’s verdict, Denson v. State, 212 Ga. App. 883, 885 (4) (443 SE2d 300) (1994), the evidence was that Cofield and D. C.’s mother, Pate, were divorced when D. C. was approximately three years old. Pate had custody of the child, but Cofield had visiting privileges. D. C. visited him regularly until her teenage years. On March 16, 1991, when D. C. was 14 years old, Pike County Deputy Thomas, who specialized in child molestation cases, was riding on regular patrol with another officer. Around 8:00 p.m., a car coming toward the officers was observed to be weaving and they turned around to pull the vehicle over. Cofield was driving and D. C. was in the passenger seat. Cofield had no driver’s license and was arrested. Deputy Thomas spoke with D. C., who appeared to be very nervous and emotionally upset. She began crying when he told her they had to go to the station. Deputy Thomas believed something was wrong and asked D. C. when they got to the station what her father had been doing that night. D. C. denied anything had happened. When Pate (then McAfee) came to pick up D. C., Deputy Thomas advised her of his suspicions, but Pate did not believe it at the time.

D. C. testified that once in his trailer in Spalding County, after the first incident and before he moved to Coweta County, Cofield also fondled her.

In February 1992, Deputy Thomas was called by Pate and met with her and D. C., at which time D. C. told him about the fondling. The call by Pate had been precipitated by the acts underlying the present charges.

Sometime between Thanksgiving and Christmas 1991, D. C. had gone to visit Cofield and his fiance in Coweta County. They were living in a trailer and the fiance had two sons from a previous marriage who were also staying there. D. C. stated that her mother dropped her off on Saturday afternoon and that evening passed without incident. She said that she slept on the couch in the living room that night and arose around noon on Sunday. Cofield and the two boys were building a clubhouse. Later she and Cofield went to a nearby field and shot rifles at targets. Cofield had been drinking beer and she carried two or three to the field for him and he also took one. The fiance and the boys left and she and Cofield were sitting on the couch watching television when he began rubbing her between her legs, including her vaginal area and also on her breasts. She told him to stop, but Cofield, over six feet tall and 250 pounds, jerked her off the couch and propelled her down the hall to the bedroom and put her on the bed. He said he and the fiance never had sex together and proceeded to remove her clothing and lay on top of her. He was holding her by both wrists and kept attempting to kiss her. He then inserted his penis in her vagina which was very painful. Shortly thereafter, he placed his mouth on her vagina and then lay back down on her. After he rolled off, D. C. got up and left the bedroom. Cofield yelled for her to bring him a towel, which she threw at him from the bathroom. He then began to masturbate. D. C. suffered some vaginal bleeding and she was in pain. She got dressed and lay down on the living room couch. Her wrists were bruised.

When Cofield emerged from the bedroom, he told her he was sorry. The fiance and boys returned and D. C. did not say anything because she was afraid and there was no phone in the trailer. Cofield was supposed to take her home that night, which he did. When she arrived home, she went straight to her room and did not tell her mother or reveal her bruises.

Previously an A and B student, D. C.’s grades had begun to fall after the March 1991 incident and thereafter, resulting in F’s. Finally, in February 1992, D. C. walked into the kitchen and blurted out to her mother that “. . . daddy is doing bad things to me, make him stop.”

The next day, February 10, 1992, the visit to Deputy Thomas and DFACS occurred. As a result of the visit with the deputy, a tape recorder was placed on the mother’s phone and Cofield was told by the mother that D. C. needed to talk to him about some school matters and to call, which he did a few days after the meeting. In that call, among other exchanges, are the following:

D. C. stated she had been thinking about “you know about what you been doing to me.”

“Cofield: About what now? D. C.: About what you been doing to me. I’m tired of it. Cofield: Oh. D. C.: And you know what I’m talking about. Cofield: Well, don’t think about it. D. C.: Can’t help it. Cofield: Well forget about it. D. C.: ... if I was gonna have sex with somebody I’d go out here and have sex with C--, not you. Cofield: Okay. Well don’t even think about it. I love you. . . . I’m not never again. That’s all you had to tell me a long time ago. . . . And I promise it won’t ever happen again. . . .”

D. C. was examined by her family practitioner on February 11, 1992. She testified that D. C. told her Cofield had had intercourse with her before Christmas. Upon examination, although finding no tearing, the doctor concluded that D. C.’s physical condition was consistent with her having previously, had intercourse. Also, the doctor testified that bleeding is consistent with a female’s first intercourse.

There was evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crimes of rape and aggravated sodomy, Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Jacobs v. State, 207 Ga. App. 714, 716 (3) (429 SE2d 256) (1993), despite Cofield’s presentation of his now wife’s testimony and that of her two sons which conflicted with D. C.’s. The credibility of witnesses is for the jury which here chose to believe the victim. “Appellate courts consider only the sufficiency, and not the weight of the evidence. [Cit.]” Jacobs, supra.

2. Cofield’s first enumeration is that the court erred in denying his motion to suppress the tape recording. He argues that the facts of D. C.’s recordation do not fall within the second prong of OCGA § 16-11-66 which provides that nothing in § 16-11-62 “shall prohibit the interception, recording, and divulging of a message sent by telephone, ... in those instances wherein the message is initiated or instigated by a person and the message constitutes the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto consents.” Here, unlike Dobbins v. State, 262 Ga. 161, 162 (2) (415 SE2d 168) (1992), there was consent by both D. C. and her mother for the recordation. Instead, Cofield contends that the conversation was not the commission of a crime or in furtherance.of a crime. “Contrary to [these] contentions, the conversation ‘may be considered in direct furtherance of such crimes as knowingly falsifying, concealing, or covering up a material fact in a matter “within the jurisdiction of any department or agency of state government . . .” (OCGA § 16-10-20), and hindering the apprehension of a criminal (OCGA § 16-10-(50)). . . .’ [Cits.]” Legg v. State, 207 Ga. App. 399, 400 (1) (428 SE2d 87) (1993).

There was no error in denying the motion and admitting the tape recording.

3. The next enumeration is that the court erred in not directing a verdict for Cofield on the incest charge, since it is argued that charge merged with the rape charge. The court properly denied the motion for directed verdict on that ground, since “ ‘[u]nder OCGA §§ 16-1-6 and 16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but he may not be convicted of more than one crime if one crime is included in the other.’ [Cit.]” (Emphasis supplied.) Padgett v. State, 205 Ga. App. 576, 578 (1) (423 SE2d 411) (1992). Here, the court’s sentence states “Life on Ct. I, (20) yrs. on Ct. II, merged with Ct. I, Life on Ct. III to run together with sentence in Ct. I. Cts. I & II merge.” Therefore, Cofield has not been improperly sentenced for both the incest and the rape, arising from the same act. See Hill v. State, 263 Ga. 37, 40 (5) (427 SE2d 770) (1993).

4. Cofield contends that the court’s allowance of D. C.’s testimony with regard to the Spalding County fondling was improperly admitted.

While Cofield argues that the act was not part of the res gestae, this was not the basis for its admission below. Objection was made below to the admission of both the Pike and Spalding incidents on the ground it placed Cofield’s character in issue and that its prejudice outweighed its probative value.

Prior to beginning the trial, the court conducted the inquiry required by Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991), and properly concluded that the two incidents were admissible. Id.; Eiland v. State, 213 Ga. App. 838, 839 (1) (445 SE2d 765) (1994).

5. Cofield alleged in his amended motion for new trial that his trial counsel had been ineffective. A hearing was conducted by the court and trial counsel testified, explaining in response to Cofield’s questions the choices he had made, including not calling certain witnesses which he felt were cumulative, not subpoenaing an audiotape of D. C.’s DFACS interview, and other alleged omissions.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “ ‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984). See United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657) (1984).

“In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance" was deficient in that he made errors so serious that he was not functioning as the ‘counsel’ guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. [Cit.]” Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).

Here, while Cofield may now disagree with some of the tactical or strategic choices made by counsel during trial, such disagreements do not equate with inadequacy. Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

Cofield has also failed to show that different decisions would have resulted in a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Cit.)” (Punctuation omitted.) Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994).

The record, including the motion for new trial hearing, is totally devoid of any proof of the other alleged deficiencies put forth by Co-field.

There was no error in denying the motion for new trial on this ground.

6. Finally, Cofield contends that imposing concurrent life sentences for the rape and aggravated sodomy charges violated OCGA § 17-10-1.

As set out above, the court sentenced Cofield to life on the rape count and a concurrent life sentence on the aggravated sodomy count.

Section 17-10-1 (a) as it existed at the time of Cofield’s sentencing on March 30, 1993 provided that “[e]xcept in cases in which life imprisonment . . . must be imposed, . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years, which shall be within the minimum and maximum prescribed by law as the punishment for the crime.”

Decided March 13, 1995.

Mark T. Cofield, pro se.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

OCGA §§ 16-6-1 (b) (rape) and 16-6-2 (b) (aggravated sodomy) both then provided a sentence of “imprisonment for life or by imprisonment for not less than one nor more than 20 years.”

Cofield contends that, unless a life sentence is mandatory, the court was required to sentence him to a term of years and contends his sentence is void.

This contention, however, has been resolved adversely to Cofield by Jefferson v. State, 205 Ga. App. 687, 688 (3) (423 SE2d 425) (1992). Here, as there, the court sentenced the defendant to life, not as a matter of sentencing as a recidivist, but within his judicial discretion to impose the maximum sentence. See also Jefferson v. State, 209 Ga. App. 859, 863 (2) (434 SE2d 814) (1993).

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       Cofield was represented by appointed counsel at trial. After conviction, trial counsel’s appointment was continued for appeal. Counsel filed a motion for new trial and thereafter Cofield filed a motion to proceed pro se and an amendment to the motion for new trial, alleging ineffectiveness of counsel, addressed infra. The court granted Cofield’s motion and he does not contest this portion of the proceedings here. See Reid v. State, 235 Ga. 378 (1) (219 SE2d 740) (1975); Carver v. State, 198 Ga. App. 676, 677 (1) (403 SE2d 230) (1991).

       D. C. was 5'4" and 110 pounds.

       OCGA § 16-11-66 was rewritten in 1993, but the amendment was not effective until July 1, 1993, after the taping here.

         While the State made the argument that the acts could be considered res gestae as well as similar acts, since the court made the ruling premised on the latter, that is all we consider.

       The 1993 legislature amended the first sentence of subsection (a) of that statute, effective May 1, 1993, by, e.g., changing “in which life imprisonment. . . must be imposed,. . .” to “in which life imprisonment may be imposed. . ..” (Emphasis supplied.) Ga. L. 1993, p. 1654. It has since been amended again by the Sentence Reform Act of 1994, Ga. L. 1994, p. 1959 et seq.

       Both of these statutes were also amended by the Sentence Reform Act.

       This issue is currently pending before the Supreme Court of Georgia in Echols v. Thomas, Case No. S95Q0082.


author: Ruffin, Judge.

text:
    A94A2461.
    SCHUMACHER et al. v. SEXTON et al.
    (455 SE2d 348)
   Ruffin, Judge.

The Schumachers are the paternal grandparents of the child involved in this termination of parental rights case. In 1989, when the child was less than a year old, her mother sent her to live with the Sextons. At that time the mother was separated from the child’s father and living with another man. The father died in 1993. On November 16, 1993, the mother executed forms surrendering the child to the Sextons and acknowledging the surrender pursuant to OCGA §§ 19-8-5 and 19-8-26 (g).

In January 1994, the Sextons filed a petition to adopt the child. Three months later, the Schumachers filed an objection to the Sextons’ adoption, and the mother moved to withdraw her surrender of parental rights. At the hearing on the motion to withdraw, the mother testified that when she signed the surrender forms she was a cocaine addict. Although she had not used cocaine for two days prior to signing the surrender, the mother testified she was still feeling its effects when she did so and that the drug clouded her judgment and affected her understanding. The court found that the mother’s consent to the surrender was given freely and voluntarily and that she had not shown good and sufficient cause why the surrender should be voided.

1. The Schumachers contend that the trial court erred in finding that the mother was competent to execute the surrender of her parental rights. We disagree. “Where a natural parent claims mental incapacity in a case involving the surrender of parental rights, this court will base our analysis upon the law regarding mental incapacity to execute a contract generally. [Cit.] Thus, a contract surrendering parental rights is subject to cancellation if the person executing the contract was entirely without understanding of the contract or if the person lacked a full and clear understanding of the nature and consequences of the contract. (Cit.) [Cit.] . . . The burden [of proof] is upon [the one] who asserts the incompetency. ... It is also the policy of Georgia law, wherever possible, to uphold contracts and to uphold the capacity of one to enter into a contract. . . . [Cit.]” (Punctuation omitted; emphasis supplied.) Faulkenberry v. Elkins, 213 Ga. App. 472, 474-475 (2) (445 SE2d 283) (1994).

The mother admitted that she signed the surrender and acknowledgment freely and voluntarily. She also testified that the Sextons’ attorney would not let her sign the documents until she had read them and that they went through the documents line by line. In addition, she recalled the details of that day and the preceding two days with clarity. Based upon our review of the testimony, we do not believe the mother met the burden of proving she was incompetent and “entirely without understanding” when she surrendered her parental rights. “Instead, the evidence leads us to believe that [she] knowingly and voluntarily relinquished custody of her child but [months] later changed her mind. . . .” Id. at 476. This enumeration is without merit.

2. The Schumachers do not deny that the mother did not attempt to withdraw her surrender within ten days as required by OCGA § 19-8-9 (b), but contend that the trial court erred in ruling that the mother had not shown good and sufficient cause why the surrender should be voided. We disagree. Under OCGA § 19-8-9 (b), a parent surrendering parental rights has ten days to withdraw the surrender. “After ten days, although consent may not be withdrawn as a matter of right ‘it does not preclude such revocation prior to final adoption for good and sufficient cause.’ [Cits.]” Ridgley v. Helms, 168 Ga. App. 435, 438 (2) (309 SE2d 375) (1983). Here, “[t]he trial court had the opportunity to question and observe the parties, and possesses a wide discretion in determining [whether good and sufficient cause has been shown], and if the [court’s] judgment is supported by any evidence, and is not clearly erroneous, an appellate court is not authorized to set it aside. [Cit.]” (Citation and punctuation omitted.) Lee v. Stringer, 212 Ga. App. 401, 403 (3) (441 SE2d 861) (1994). The surrender was signed freely and voluntarily and the trial court found the mother competent. “[I]n the absence of additional circumstances, the trial court did not err in refusing to release [the mother] from her consent. . . . [Cits.]” Id. See also Helms, supra at 439.

Decided March 13, 1995

S. Lester Tate III, for appellants.

Eric N. Welch, for appellees.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2562.
    MEEKS v. THE STATE.
    (455 SE2d 350)
   Ruffin, Judge.

Daniel Meeks was indicted for two counts of first degree vehicular homicide. He was convicted by a jury and appeals the denial of his motion for new trial.

At trial, Officer James West, a member of the Gwinnett County DUI Task Force, testified that shortly after midnight, he arrested a drunk driver traveling north on Interstate 85 (“1-85”) just south of Jimmy Carter Boulevard. Officer Chris Magill arrived at the scene and offered to stay with the arrested driver’s car until the tow truck arrived while West took the driver to jail. Magill’s police car was parked in the emergency lane and the blue lights were illuminated. Around this time, Alan Hutcherson, an off-duty police officer, was traveling north on 1-85 from the Pleasantdale Road area. Hutcherson testified that he noticed a driver in front of him, later identified as Meeks, changing lanes several times using his right signal before moving to the left and signaling a right turn when moving to the left. The car swerved to the left and right several times and other cars were swerving to get out of its way. Believing the driver of the car was dangerously intoxicated, Hutcherson decided to catch the driver, get his attention, and have him pull over to the side of the road. Hutcherson increased his speed to approximately 70-75 mph as he attempted to catch Meeks. He estimated he was able to get within 10-20 feet of Meeks, with two lanes of traffic separating them, but that Meeks looked straight ahead and never turned to look at him. At that time, Hutcherson was able to see the blue lights from MagilPs car ahead of him. Hutcherson blew his horn and Meeks moved into the emergency lane. Meeks traveled in that lane for approximately a quarter of a mile before crashing into Officer MagilPs car and killing him. Hutcherson testified that Meeks was traveling approximately 75-80 mph at the time of the wreck, and that he never saw Meeks slow down or apply the brakes before the wreck.

Dr. Brown, a witness from the Georgia State Crime Lab, testified that Meeks had a .22 percent blood-alcohol content, and the jury was charged that it is illegal for an individual to drive when his blood-alcohol content is .10 percent or more. Meeks admitted drinking eight or nine beers that evening, which included two cans he drank while driving. Meeks testified that he traveled from Interstate 285 to 1-85 north; that the Pleasantdale Road exit was the last sign he remembered seeing; and that he never saw the blue lights from MagilPs car. Meeks remembered bright lights and a horn blowing, and the next thing he knew, a woman was telling him “[y]ou S.O.B., you killed him. You S.O.B., you killed him.”

1. Meeks contends the trial court erred in failing to give his requested charge on sudden emergency, arguing that being “chased” by a driver honking his horn might lead anyone to believe an emergency existed. This enumeration is without merit. The charge of sudden emergency is “not appropriate in a criminal case. . . . [Cits.]” Stancil v. State, 158 Ga. App. 147, 149 (3) (279 SE2d 457) (1981).

2. Meeks contends that a jury could conclude that Hutcherson’s reckless pursuit of him was the proximate cause of MagilPs death and that the trial court therefore erred in failing to give his requested charge on intervening criminal causation. We disagree. The charge was not adjusted to the evidence as it must be. Kimble v. State, 209 Ga. App. 36 (2) (432 SE2d 636) (1993). Hutcherson testified that even when off duty, a police officer should not ignore an intoxicated driver and that officers in a personal vehicle may stop a driver in a life threatening situation. Moreover, Meeks presented no evidence that Hutcherson’s conduct violated any criminal statute. Finally, given Meeks’s highly intoxicated state and the fact that he remembers nothing after seeing the Pleasantdale Road sign, including the blue lights from MagilPs car, we cannot conclude that without the pursuit by Hutcherson, Magill would not have been struck by Meeks. This enumeration is without merit.

3. Meeks contends the trial court erred in failing to charge the jury that “[i]n order for the defendant to be guilty of vehicular homicide in the first degree, . . . you must find that the victim’s death was proximately caused by either the defendant driving under the influence or by the defendant engaging in reckless driving.” He argues that without this charge, the jury was confused and did not understand that in order to find him guilty of first degree vehicular homicide, they were required to find that Magill’s death was proximately caused by Meeks driving under the influence. Meeks contends that this confusion is evidenced by the jury’s request for a written definition of first and second degree vehicular homicide. We disagree.

The court charged the jury on first degree vehicular homicide, including the language that “[a] person commits . . . homicide by a vehicle in the first degree when, . . . that person causes the death of another person by driving any vehicle in such a manner as to be in reckless disregard for the safety of persons ... or ... by driving . . . any moving vehicle while under the influence of alcohol. . . .” (Emphasis supplied.) The court immediately followed this charge with a proximate cause charge. The court’s charges covered the same legal principle as the one requested by Meeks. “It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.” (Citation and punctuation omitted.) Pierce v. State, 209 Ga. App. 366, 368 (3) (433 SE2d 641) (1993). The court’s charge as a whole was sufficient and there was no error in the refusal to give the requested charge. Mote v. State, 212 Ga. App. 551 (2) (442 SE2d 799) (1994).

4. Meeks contends that the trial court erred in prohibiting him from questioning prospective jurors during voir dire about whether they were familiar with (1) rapes and robberies in Cobb County which occurred when motorists were pulled over by a man pretending to be a police officer and (2) a woman in DeKalb County who was raped and robbed after being stopped by a man pretending to be a police officer. He argues that this information was crucial to his defense because those were the circumstances he found himself in and jurors familiar with those events would be more likely to view Hutcherson’s pursuit of him as unreasonable and believe that his failure to stop was reasonable. We disagree. “The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination.” (Citation and punctuation omitted.) Frazier v. State, 138 Ga. App. 640, 643 (2) (c) (227 SE2d 284) (1976). Meeks’s proposed questions, however, sought not to ferret out bias or impartiality, but to find jurors amenable to the defense his lawyer would attempt to argue. “Questions seeking to test the prospective jurors’ willingness to accept defenses have been disallowed and upheld on appeal.” Henderson v. State, 251 Ga. 398, 400 (1) (306 SE2d 645) (1983). Moreover, Meeks never testified that he was aware of Hutcherson’s pursuit, let alone that he failed to stop or slow down because of some apprehension that Hutcherson might not be a police officer. Thus, the questions were irrelevant and the court did not abuse its discretion in refusing to allow them. Henderson, supra at 401.

Decided March 13, 1995

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Donald L. Johstono, Jr., Assistant District Attorneys, for appellee.

5. Meeks contends the trial court erred in denying his motion for a change of venue due to pre-trial publicity about the case. He argues that newspaper articles mentioning his previous criminal record, two of which were published immediately prior to trial, made it impossible for him to get a fair trial. The trial court reserved ruling until after voir dire was complete.

The trial court has the discretion to grant a change of venue and its determination will not be disturbed absent an abuse of that discretion. Chancey v. State, 256 Ga. 415 (5) (349 SE2d 717) (1986). “In a motion for a change of venue, the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. [Cit.]” Grace v. State, 210 Ga. App. 718, 720 (3) (437 SE2d 485) (1993). Meeks has not shown that the setting of the trial was inherently prejudicial. See, e.g., Nobles v. State, 201 Ga. App. 483 (11) (411 SE2d 294) (1991).

Nor has Meeks shown actual prejudice in the jury selection process rendering a fair trial impossible. This determination involves a review of the voir dire examination of potential jurors. Chancey, supra at 429 (5). Meeks’s counsel was allowed individually sequestered voir dire and wide latitude in questioning the potential jurors. See Nobles, supra. During voir dire, 50 potential jurors were questioned and 38 were qualified for jury selection. Of the twelve jurors excused for cause, the record shows that seven were excused due to pre-trial publicity and two because of both pre-trial publicity and personal beliefs about alcohol consumption. Three were excused for reasons unrelated to pre-trial publicity. “As to the remaining prospective jurors, [Meeks] has not shown that any of them were unable to lay aside [any] impression [of guilt] and render a verdict based on evidence presented in court.” Morrill v. State, 216 Ga. App. 468 (454 SE2d 796) (1995). Accordingly, the trial court did not abuse its discretion in denying Meeks’s motion for a change of venue.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A95A0657.
    SHELTON v. THE STATE.
    (455 SE2d 304)
   Blackburn, Judge.

The appellant, James W. Shelton, appeals from his convictions of speeding and driving under the influence of alcohol following a bench trial.

The evidence adduced at trial showed that at approximately 9:19 p.m. on May 9, 1990, Deputy Sheriff Barry Babb observed Shelton driving his vehicle in the opposite direction at an excessive rate of speed. The officer turned his vehicle around and pursued Shelton. The officer traveled at a minimum of 70 mph in pursuit of Shelton. During the chase, the deputy noticed that Shelton’s vehicle crossed the centerline three separate times. Thereafter, the officer stopped Shelton’s vehicle, and Shelton exited the vehicle as if he was unbalanced. Shelton’s eyes were glassy and there was a strong odor of alcohol on his breath. Three field sobriety tests were conducted, following which the officer placed Shelton under arrest for driving under the influence. Shelton was advised of the State’s Implied Consent Law and submitted to a blood-alcohol test. The test results showed that his blood-alcohol level was .17 grams. Shelton was issued separate uniform traffic citations for speeding and driving under the influence of alcohol in violation of OCGA §§ 40-6-181 and 40-6-391, respectively.

1. Initially, Shelton maintains that the trial court erred in failing to quash the DUI citation for vagueness, asserting that the citation does not sufficiently apprise him of the charges against him to allow him to adequately prepare for his defense. Specifically, Shelton asserts that the statute cited in the citation, OCGA § 40-6-391, provides for violation in a multitude of ways, and by the use of two different substances, drugs and alcohol, or by the combination of them both.

“The true test of the sufficiency of an indictment or accusation or citation is not whether it could have been made more definite and certain or, for that matter, perfect. . . .” (Punctuation omitted.) Manley v. State, 187 Ga. App. 773, 775 (371 SE2d 438) (1988). “The legal sufficiency of the accusation or indictment depends upon the accusation as a whole. An indictment is sufficiently technical and correct if it states the offense in the terms and language of the statute or so plainly that the [trier of fact] may easily understand the nature of the offense charged. A defendant who was not at all misled to his prejudice by any imperfection in the [citation] cannot obtain reversal of his conviction on this ground. The designation of the offense should be construed together with the descriptive averments contained in the accusation or [citation] to determine whether it adequately charges the offense.” (Citations and punctuation omitted.) Id. at 775-776.

The citation as a whole informed Shelton that he was charged with violating OCGA § 40-6-391 by driving his vehicle under the influence of alcohol. The citation specifically provides that a DUI breath test was administered and the results showed an alcohol level of .17 grams. Hence, Shelton was informed of what he should have been prepared to meet at trial, and the judge, as trier of fact, should have understood the offense charged against Shelton. Id. Consequently, the citation should not have been quashed. Id.

2. Next, Shelton asserts that the trial court erred in denying his motion to suppress and motion in limine in reference to the results of the state’s alcohol test. Specifically, he maintains that although the arresting officer testified that he read Shelton the contents of the implied consent card, the officer did not specify the exact language used in advising him of his rights, and it has not been shown that the language contained therein was adequate. Pretermitting the merits of this argument, the transcript before us does not reveal that Shelton objected to the introduction of the test results on this basis below, “and it is well established that grounds not raised by objection below may not be raised for the first time on appeal. [Cit.]” Smith v. State, 204 Ga. App. 576, 577 (420 SE2d 29) (1992).

3. Lastly, Shelton argues that the evidence produced at trial was insufficient to warrant his convictions. On the contrary, the evidence produced at trial shows that Shelton was observed by the officer traveling at a minimum of 70 mph. After he was stopped by the officer, the officer noticed that his eyes were glassy and his breath smelled of an alcoholic beverage. Shelton was subsequently administered a breath alcohol test which registered his blood-alcohol level at .17 grams. This evidence was sufficient to authorize a rational trier of fact to find Shelton guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Fouche v. State, 211 Ga. App. 875 (2) (440 SE2d 758) (1994).

Judgment affirmed.

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

On Motion for Reconsideration.

On motion for reconsideration, the defendant maintains that he did not waive his challenge to the admissibility of his blood-alcohol content as determined by the Intoximeter 3000 test because he objected to the adequacy of such in a motion to suppress and motion in limine which specifically raised the arguments presented on appeal and that this court overlooked this fact in its opinion. The defendant presented 13 objections to the admissibility of such evidence in his motion to suppress and motion in limine, and the trial court reserved ruling on such motions until the evidence was offered. Upon the State’s attempt to offer the test results into evidence, the defendant objected and several grounds were presented and argued. Thereafter, the court inquired as to whether all of the defendant’s objections had been dealt with. The defendant’s counsel responded, “Right. That, and, all objections stated in my motion in limine and motion to suppress, and I think I’ve stated all of those here.”

Decided February 15, 1995

Reconsideration denied March 14, 1995.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Randall K. Coggin, James E. Sherrill, Assistant District Attorneys, for appellee.

While defendant’s counsel argued the additional ground herein asserted as to the inadmissibility of the test results in his written motion, he failed to bring same to the court’s attention in response to the court’s direct inquiry as to other objections and as a result no ruling was made by the trial court on same. Even though defendant listed the objection in his motion, he cannot rely thereon and avoid a ruling by the court in the face of the court’s direct verbal inquiry. Therefore, defendant’s argument is without merit.

Motion for reconsideration denied.


author: Smith, Judge. Pope, Presiding Judge,

text:
    A94A2085.
    MUSCOGEE IRON WORKS et al. v. WARD.
    (455 SE2d 363)
   Smith, Judge.

We granted a discretionary appeal in this workers’ compensation case to address an issue of first impression regarding the construction of OCGA § 34-9-367. The superior court affirmed the State Board of Workers’ Compensation’s award of reimbursement from the Subsequent Injury Trust Fund (the “Fund”) to the employer, Muscogee Iron Works, but reversed the Board’s award of attorney fees against the Fund, finding that such an award was barred by OCGA § 34-9-367. Muscogee appeals the reversal of the award of attorney fees.

The record reveals that Ward was hired by Muscogee in 1974 after having suffered an injury to his left arm requiring amputation above the elbow. In 1988, while lifting a heavy steel plate with one arm, Ward injured his back. Muscogee accepted compensability of Ward’s claim for the back injury and began paying him benefits. The total amount that Muscogee has paid Ward in indemnity and medical benefits is over $35,000.

Title 34, Chapter 9, Article 9 of the Official Code of Georgia Annotated provides for the establishment of the Fund. OCGA § 34-9-352. An employer who hires a handicapped worker, and later is required to pay compensation to such a worker is entitled to reimbursement from the Fund for a certain portion of its expenditures. Id.; OCGA § 34-9-360 (a), (b). When Muscogee applied for reimbursement from the Fund, however, the Fund defended the claim. It took the position that the amputated arm had not caused a hindrance to Ward’s employment; that Muscogee did not know of Ward’s impairment before hiring him, as required by OCGA § 34-9-361; and that no merger occurred between the back injury and the previous disability, as defined in OCGA § 34-9-351 (1).

The ALJ found against the Fund on all three grounds and awarded Muscogee reimbursement. Muscogee’s request for attorney fees from the Fund, however, was denied on the ground that the Fund’s defense of the claim was reasonable. The Board’s Appellate Division affirmed the ALJ’s findings on reimbursement, but found that the Fund had “unreasonably refused reimbursement in this matter,” and awarded Muscogee attorney fees pursuant to OCGA § 34-9-108, noting that OCGA § 34-9-367 makes no prohibition of such a fee assessment. The superior court affirmed the Appellate Division’s decision “as to the merits of the claim for reimbursement” but reversed the award of attorney fees, concluding that “as a matter of law . . . OCGA § 34-9-367 bars an assessment of attorney’s fees against the . . . Fund.”

Muscogee contends that neither established principles of statutory construction nor sound public policy bars the award of attorney fees made by the Board under these circumstances. We agree and reverse.

First, the award is not barred by the language of the statute. OCGA § 34-9-108 (b) (1) provides that attorney fees may be assessed against an “offending party” if a determination is made “that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds.” The Appellate Division’s determination that the Fund unreasonably defended the claim is a factual determination, and we must accept it if “any evidence” supports it. Ga. Subsequent Injury Trust Fund v. Brockway Standard, 204 Ga. App. 519, 520-521 (419 SE2d 755) (1992). The Fund is a party to this litigation, and it is therefore subject to a claim for attorney fees unless barred by OCGA § 34-9-367.

OCGA § 34-9-367 provides in its entirety: “The Subsequent Injury Trust Fund shall not be liable for any interest on sums due claiming parties nor shall it be liable for attorney’s fees due attorneys of the claiming parties.” Our research has revealed no other use of the term “claiming parties” in the Workers’ Compensation Act. However, the statute must be construed as a whole. “It is a well-established principle that a statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowe’s of Savannah, 235 Ga. 201, 203 (219 SE2d 115) (1975). Claimants are the “claiming parties” referred to in the first part of OCGA § 34-9-367, to whom interest might be due on awards carried past the administrative level. OCGA § 34-9-107. It follows that they are also the “claiming parties” referred to in the second part of the statute. We therefore interpret the statute’s prohibition on the Fund’s liability for attorney fees due “claiming parties” to mean that the Fund is not liable for reimbursing employers for attorney fees awarded to claimants pursuant to OCGA § 34-9-108 (b) (1) against employers who have unreasonably defended the injured employees’ claims.

Second, sound public policy dictates that when the Fund has unreasonably defended claims for reimbursement, it should be liable for attorney fees. The cardinal rule in interpreting a statute is to ascertain the intent of the legislature and give the statute that construction which will effectuate the legislature’s intent. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Exempting the Fund from the operation of the attorney fees provisions in OCGA § 34-9-108 (b) (1) would frustrate, rather than promote, the purpose for which the Fund was established. The Fund’s stated purpose is “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 to cause a greater disability than would have resulted from the subsequent injury alone.” OCGA § 34-9-350. Permitting the Fund to defend with impunity the claims of employers for reimbursement without reasonable basis would encourage the Fund to do so as a routine practice. Such a result would serve, not as encouragement to employ the handicapped, but on the contrary, as a disincentive for employers to do so. Accordingly, the judgment of the superior court denying Muscogee’s claim for attorney fees must be reversed.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Beasley, C. J., Pope, P. J., and Andrews, J., dissent.

Pope, Presiding Judge,

dissenting.

I must respectfully dissent. The Subsequent Injury Trust Fund was created by an Act of the Georgia General Assembly in 1977 to encourage the employment of handicapped persons by protecting employers from excess liability for compensation for certain injuries. Ga. L. 1977, pp. 608, 609; OCGA § 34-9-350. In creating the Fund, the General Assembly also expressly provided that the Fund would not be liable for certain costs, see Ga. L. 1977, p. 617 “Nonliability of fund for certain costs,” and it is that provision, OCGA § 34-9-367, that we are concerned with in this case. Contrary to the holding of the majority, I do not believe that the phrase “claiming parties” as used in that section refers only to the original claimant (the employee) for workers’ compensation benefits. The only “parties” who can “claim” under the Fund are employers or insurers. The only “parties” who can claim workers’ compensation benefits are employees. It seems to me that “claiming parties” refers to any person or entity claiming interest or attorney fees, whether they are an employee claiming under the provisions of the Workers’ Compensation Act or an employer or insurer claiming reimbursement under the Fund. This makes sense as a matter of statutory construction, inasmuch as the all-encompassing phrase “claiming parties” appears only in this section; in other sections, the parties are referred to as either the claimant, employee, employer or insurer. As for consideration of the legislative intent in drafting this provision, it seems to me an effort by the legislature to protect and preserve the Fund by simply providing that no attorney fees (or interest) are to be paid out of the Fund. I am thus in accordance with the superior court’s finding that the bar against the payment of attorney fees expressed in OCGA § 34-9-367 is absolute, and that, therefore, attorney fees incurred by an employer or insurer in pursuing its claim against the Fund are not assessable against the Fund. It follows that I would affirm, not reverse, the order of the superior court in this case.

Decided March 14, 1995

Lowendick, Speed & Donahue, Kenneth B. Donahue, for appellants.

McNatt, Greene & Thompson, Richard S. Thompson, for appellee.

I am authorized to state that Chief Judge Beasley and Judge Andrews join in this dissent.


text:
    A94A2196.
    ELLISON v. THE STATE.
    (455 SE2d 361)
   Ruffin, Judge.

Wallace Ellison was convicted of four counts of armed robbery and seven counts of kidnapping. He appeals from the judgment of conviction and sentence.

The evidence shows that Ellison was one of three men involved in the armed robbery of a movie theater. The men purchased tickets for a movie and once inside the theater, forced several theater employees at gunpoint to an upstairs office. There the employees were bound with tape and forced to lie on the floor. Several of the employees were robbed of their wallets. The assistant theater manager was directed at gunpoint to open a safe from which the men removed the money inside.

The police were summoned and arrived while the robbery was in progress. An officer confronted the men as they left the theater, and one of the robbers dropped a bag of money at the officer’s feet. Two of the robbers then ran into the woods where they were apprehended by the police. Ellison was identified as one of the robbers apprehended in the woods. A nine millimeter gun was recovered from the area in the woods where Ellison was apprehended, and police found 100 one dollar bills in his pocket.

1. Ellison contends the trial court erred in failing to exclude the assistant theater manager’s in-court identification of him because it was based on a prior identification from a single photograph shown to her by the police. Ellison argues that the showing of the single photograph was impermissibly suggestive.

“[E]ven assuming, arguendo, that the original identification from a single photograph was impermissibly suggestive, [cit.], in order to establish a due process violation appellant must also show a very substantial likelihood of irreparable misidentification. [Cit.] ‘The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the [perpetrator] at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the [perpetrator], the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ [Cit.] Applying these factors, we find that the likelihood of misidentification was not very substantial.” Mobley v. State, 198 Ga. App. 497, 498 (3) (402 SE2d 100) (1991).

The assistant theater manager testified that her father taped a report of the robbery from a news broadcast which she viewed several times the day following the incident and that she identified Ellison on the videotape as the man who held a machine gun to her head. She indicated she was face-to-face with Ellison for 15 minutes during the robbery. Looking directly at Ellison in the courtroom, she testified that she was absolutely sure he was the person who pointed a gun in her face. This testimony established a basis for the in-court identification independent of the single photograph; thus, we find no error in the admission of the assistant theater manager’s identification. Baxter v. State, 254 Ga. 538 (11) (331 SE2d 561) (1985).

Decided March 14, 1995.

Megan C. De Vorsey, Susan E. Teaster, for appellant.

Lewis R. Slaton, District Attorney, Kenneth D. Feldman, Vivian D. Hoard, Assistant District Attorneys, for appellee.

2. A police officer testified that after Ellison was arrested, in an attempt to explain what he was doing at the movie theater, he stated he was brought there by his wife to deal drugs and that the other man, with whom he was caught, kidnapped him. Ellison contends this testimony improperly placed his character in issue.

“ ‘ “It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense. (Cits.)” [Cit.]’ [Cit.]” Ingram v. State, 253 Ga. 622, 638 (18) (a) (323 SE2d 801) (1984). This enumeration is without merit.

3. Ellison contends the trial court erred in admitting the assistant theater manager’s statement to the police as a prior consistent statement because her veracity was never placed in issue. The trial transcript shows that prior to the reading of the statement, defense counsel only raised a hearsay objection to its admission. “ ‘(W)here an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.’ [Cit.]” Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989). Thus, this enumeration of error fails.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Beasley, Chief Judge.

text:
    A94A2307.
    NULL v. THE STATE.
    (455 SE2d 359)
   Beasley, Chief Judge.

This is an instance of fragmented appeal.

Null was tried and convicted on May 31, 1990 of murder, armed robbery, and kidnapping with bodily injury. He was given a life sentence for the murder, a consecutive life sentence for the armed robbery, and a third life sentence concurrent with the second for the kidnapping. His convictions were affirmed by the Supreme Court of Georgia on April 11, 1991, in a direct appeal in which he was represented by trial counsel. Null v. State, 261 Ga. 180 (402 SE2d 721) (1991).

This pro se appeal arises from the denial of Null’s “Motion to Correct Sentence” in regard to the life sentence imposed for the armed robbery, which he filed pro se on October 13, 1992. For a reason which does not appear of record, a rule nisi was not entered until February 18, 1994, setting a hearing on March 31, 1994. Movant filed a “supplemental attachment” to his motion on March 14 and the hearing proceeded on March 31 as scheduled. Null represented himself. “[Although habeas corpus would have been an appropriate remedy to determine the validity of a sentence, it is not necessarily an exclusive or sole remedy; such an action may be brought in the trial court[,]” as was done here. Jefferson v. State, 205 Ga. App. 687 (1) (423 SE2d 425) (1992), citing McCranie v. State, 157 Ga. App. 110, 111 (3) (276 SE2d 263) (1981).

Null contends that a life sentence for armed robbery under OCGA § 16-8-41 (b) deprived him of due process and equal protection under the Fourteenth Amendment and Article I, Section I, Paragraphs I and II of the Georgia Constitution because OCGA § 17-10-1 (a) in effect at the time of his sentencing mandated that he be given a sentence for a determinate number of years. OCGA § 16-8-41 (b) provides the punishment: “A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than five [—] nor more than 20 years.” When Null was sentenced, OCGA § 17-10-1 (a) read, as pertinent: “Except in cases in which life imprisonment or the death penalty must be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years, which shall be within the minimum and maximum prescribed by law as the punishment for the crime.” This was a change from a previous version, which stated: “Upon a verdict or plea of guilty in any case involving a misdemeanor or felony the judge fixing such sentence shall prescribe a determinate sentence for a specific number of years . . . except in cases in which life imprisonment or capital punishment is imposed.” Ga. L. 1974, pp. 352, 354, § 4.

Pursuant to a certified question from the United States Court of Appeals for the Eleventh Circuit, the challenge Null poses is under consideration by the Supreme Court of Georgia in the pending case of Echols v. Thomas, Case No. S95Q0082. No separate and independent argument is presented on the state constitutional ground, so we will not address it. Merriman v. State, 201 Ga. App. 817, 818 (1) (412 SE2d 598) (1991) (physical precedent); Heinen v. State, 186 Ga. App. 373, 374 (fn. 1) (367 SE2d 275) (1988).

In the context of a due process challenge to the imposition of life sentences, this court has rejected the interpretation that under former OCGA § 17-10-1 (a), a defendant must be given a sentence for a specific number of years. Jefferson v. State, 209 Ga. App. 859, 862 (2) (434 SE2d 814) (1993). The same version of OCGA § 17-10-1 (a) was at issue in Jefferson’s case, which is first reported at Jefferson v. State, 199 Ga. App. 594 (405 SE2d 575) (1991). See also Williams v. State, 214 Ga. App. 421, 422 (4) (447 SE2d 714) (1994); Cofield v. State, 216 Ga. App. 623 (455 SE2d 342) (1995). Appellant does not present a separate argument based on the equal protection clause.

Decided March 14, 1995.

Billy J. Null, pro se.

Daniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

To the extent that Null’s contentions raise a facial challenge to the constitutionality of the sentencing provision of subsection (b) of the armed robbery statute, we do not address it. Even though the trial court found no legal merit in Null’s position, it did not make an express ruling on the facial validity of the sentencing provision. For this reason we do not transfer this case to the Supreme Court of Georgia, which has exclusive jurisdiction of such a constitutional challenge. 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A2640.
    DUMAS v. THE STATE.
    (455 SE2d 354)
   Ruffin, Judge.

Anthony Dumas was convicted of aggravated assault, armed robbery, and possession of a firearm during a crime and appeals the judgment of conviction and sentence.

The victim in this case was the manager of a convenience store who testified to the following events: On December 1, 1992, he closed the store at approximately 10:15 p.m. As he was locking the door, he saw Dumas and his mother, both of whom frequented the store, sitting on the porch of the mother’s house, which was located next to the store. Dumas then jumped from the porch and approached him. Dumas was wearing dark sunglasses and the victim asked “Antonio, what are you doing with shades on this time of night?” Dumas then put a gun to the victim’s head, demanded the money from the store and pulled the trigger, but the gun did not fire. He hit the victim on the head with the gun causing the victim to fall and break his hip. Dumas took the victim’s wallet, demanded to know where the store’s money was kept, and shot him in the leg.

Two eyewitnesses to the crime contacted the police that night. They told the police the assailant was related to a woman in the building next to the store. The eyewitnesses picked Dumas out of a photographic lineup and identified him as the assailant in the robbery and assault. The victim also picked Dumas’s picture out of a lineup.

Dumas presented three alibi witnesses. Roger Dixon testified that on the evening of the incident, Dumas came to his house at approximately 7:30 and drank beer for several hours. Dixon also testified that at approximately 10:00 or 10:30 he took Dumas to a motel and got a room for him because Dumas did not have any identification. Dixon stated he drank beer with Dumas for a couple of hours at the motel and then left. Dixon’s brother, Willie Harvey, testified that sometime in December he loaned his truck to Dixon so that Dixon could take Dumas to a motel. Finally, Bob Patel, the motel manager, identified a registration card showing that Dixon had rented a room on December 1, 1992. Dumas never testified.

In his sole enumeration of error, Dumas contends that the trial court committed reversible error by failing to grant a mistrial when the State impermissibly commented on his failure to testify.

In his closing argument, the prosecutor outlined the evidence the jurors had heard. He stated the following: “The defendant has called a series of witnesses. . . . They are going to rely on [the motel registration card]. . . . Nowhere on that [card] are you . . . going to be able to read that this individual, Mr. Dumas (indicating) was not there ... on December 1, 1992 out there on DeKalb Avenue standing over [the victim]. . . .” The prosecutor then summarized the testimony from the State’s witnesses, concluding with the following: “At any time did you hear any witness take that stand and say [Dumas] didn’t do it? . . . No. Witness after witness after witness said ... he did it, he did it, he did it (indicating).

“[The defendant’s attorney] is going to get up and create smoke and rant and rave, oh, boy, she’s going to give you a list. This person went A, B, C. This person went A, B, C, D. That does not make sense. They’re mistaken. And then I want you to sit back and say, [to the defendant’s attorney] you’re right, . . . but where is that person who says he didn’t do it?” The record indicates that while uttering this last sentence the prosecutor walked over to Dumas and pointed at him.

Dumas’s attorney moved for a mistrial, arguing that the prosecutor had impermissibly commented on the defendant’s failure to testify. The trial judge stated that by virtue of what the prosecutor had said and the manner and method in which the remark was made, the prosecutor was on “very dangerous ground” because the jury could have been left wondering why Dumas did not testify. The judge also stated that the question of whether the prosecutor had commented on the failure of Dumas to testify was “very close.” The prosecutor explained that he was not commenting on Dumas’s failure to testify but was referring to the fact that all three alibi witnesses could have easily said “he didn’t do it, he was with me,” but none of them ever did. He further stated that had no alibi witnesses been called he would never have made the reference or used that type of argument.

Decided March 14, 1995.

Jennifer B. Mann, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

“To find that a prosecutor’s comment was directed at the defendant’s failure to testify, and constituted reversible error, the reviewing court must determine that . . . ‘the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ [Cit.]” Postell v. State, 200 Ga. App. 208, 215-216 (6) (407 SE2d 412) (1991).

In order to determine the natural and necessary impact of the statement on the jury, we must consider the context in which the statement was made. Reeves v. State, 179 Ga. App. 474 (347 SE2d 260) (1986). In the instant case, the prosecutor outlined in sequential order Dumas’s documentary evidence, the testimony from the State’s witnesses and what the defense would likely say about the alibi witnesses. As he concluded his commentary on the State’s witnesses, the prosecutor pointed to Dumas and asked “[d]id you hear any witness take that witness stand and say [he] didn’t do it?” The ensuing comment and pointing complained of was the next logical step in the argument, i.e., that even the alibi witnesses never said Dumas “didn’t do it.” See Martin v. State, 193 Ga. App. 581 (4) (388 SE2d 420) (1989) (context of prosecutor’s statement that Martin has not presented any evidence to prove he did not commit the crime shows the statement was a logical progression in the argument and not an impermissible comment on the defendant’s failure to testify).

“[T]he trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused. [Cit.]” (Citation and punctuation omitted.) Martin, supra at 587. For the reasons outlined above, we cannot say the trial judge abused its discretion in denying Dumas’s motion.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2674.
    HABERSHAM METAL PRODUCTS COMPANY v. HUNTSVILLE FASTENER & SUPPLY, INC.
    (455 SE2d 356)
   Ruffin, Judge.

Habersham Metal Products Company (“Habersham”) filed this breach of contract action against Huntsville Fastener & Supply, Inc. (“Huntsville”). Huntsville filed a motion to dismiss for lack of personal jurisdiction, and Habersham appeals from the trial court’s grant of that motion.

“[A] defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. [Cits.]” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539 (428 SE2d 435) (1993). “If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. [Cit.] Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. [Cits.]” Id. at 540.

Viewed in this light, the record shows that Huntsville is an Alabama corporation in the business of distributing screws and other fastening devices. Huntsville’s principal place of business is in Huntsville, Alabama, and it has no offices or employees in Georgia, nor is it registered to do business in Georgia. In 1987, Habersham, whose business is located in Habersham County, Georgia, telephoned Huntsville in Alabama to investigate whether it could fill an order for a certain type of screws. Huntsville filled the order and the parties continued doing business with each other to the extent that Huntsville was filling several Habersham orders each month.

During their general course of business, Habersham would telephone Huntsville in Alabama to place an order, and while Huntsville would give a verbal commitment to fill the order by phone, it required Habersham to confirm the order in writing. Habersham then sent a written purchase order to Huntsville in Alabama and Huntsville in turn shipped an invoice containing the terms of the agreement and the order itself to Habersham’s place of business in Georgia. One provision of the agreement states that “[t]his agreement shall be construed in accordance with the laws of the State of Alabama, U.S.A.” During the course of dealings, both parties initiated telephone calls and mail correspondence necessary to the ongoing business relationship, which included Huntsville mailing Habersham catalogues and sample products.

In 1989, Habersham placed an order with Huntsville and after a dispute arose concerning the order, two representatives of Huntsville met with representatives of Habersham at Habersham’s office in Georgia. While both parties agree that the parties met to resolve the dispute, Habersham also asserts that they discussed future business relations. Although the dispute was not resolved and Habersham eventually filed suit, Habersham placed 58 purchase orders with Huntsville after the meeting.

“OCGA § 9-10-91 (1) provides that courts of this state may exercise personal jurisdiction over any nonresident if that nonresident ‘(t)ransacts any business within this state.’ ‘This has been interpreted to mean that purposeful acts must have been performed by the defendant to tie it to the State, and mere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the Long Arm statute. The United States Supreme Court has held that an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum, and that the contract is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction. It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.’ [Cit.]” Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483, 485 (1) (451 SE2d 113) (1994).

In the instant case, Huntsville’s active participation in the ongoing business relationship with Habersham provided sufficient minimum contacts with Georgia for the trial court to exercise its long arm jurisdiction under OCGA § 9-10-91. While Huntsville did not initiate the business relationship, it continuously corresponded with Haber-sham and sent its products to Habersham in Georgia. Moreover, while a majority of this correspondence was necessary to the transaction of business, Huntsville also sent catalogues and sample products to Habersham that helped perpetuate the business relationship. Considering the extent and nature of this activity over the course of the business relationship, Huntsville’s contacts within Georgia were not “random, fortuitous, or attenuated. ...” (Citation and punctuation omitted.) Behar v. Aero Med Intl., 185 Ga. App. 845, 850 (2) (366 SE2d 223) (1988). While “[i]t is critical to this due process analysis that the nonresident defendant’s ‘ “ ‘conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there[,]’ ” ’ [cit.]” id., “the mere statement that [Alabama] law would apply implied that suit would be brought [in Georgia] but that [Georgia] law would not apply.” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 895 (1) (380 SE2d 303) (1989).

“Given [Huntsville’s] consistent and purposeful . . . dealings with the Georgia corporation, dealings which bestowed substantial benefits to [Huntsville] . . . , ‘neither reasonableness nor fair play nor substantial justice would be offended’ by haling [Huntsville] into a Georgia court and exercising jurisdiction over [it]. [Cits.]” White House v. Winkler, 202 Ga. App. 603, 605 (415 SE2d 185) (1992). The trial court erred in granting Huntsville’s motion to dismiss for lack of personal jurisdiction.

Decided March 14, 1995.

James N. Butterworth, for appellant.

M. Steven Campbell, for appellee.

Judgment reversed and case remanded.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2769.
    PIT STOP, INC. v. JACKSON et al.
    (455 SE2d 358)
   Ruffin, Judge.

Ray and Charlotte Jackson, individually and as guardians and next friends of their daughter, K. C. Marie Jackson (“Ms. Jackson”), brought a negligence action against several entities, including Pit Stop, Inc. (“Pit Stop”), for injuries sustained by Ms. Jackson in an automobile collision. Ms. Jackson was a passenger in a vehicle which was struck by an 18-wheel tractor-trailer while turning onto the highway from Pit Stop, a convenience store and filling station.

On April 4, 1994, Pit Stop filed a motion for summary judgment and a written request for oral argument, and Mr. and Mrs. Jackson responded to the motion on April 29, 1994. Oral argument on the motion was set for May 16, 1994 at 10:00 a.m. However, on May 5, 1994, despite the request for oral argument, the trial court denied Pit Stop’s motion without a hearing. This appeal followed.

1. Pit Stop first enumerates as error the trial court’s denial of its motion for summary judgment without affording oral argument properly requested by Pit Stop pursuant to Uniform Superior Court Rule 6.3. All parties concur that the court erred in failing to conduct a hearing as requested.

Uniform Superior Court Rule 6.3 provides in pertinent part that “oral argument on any motion for summary judgment shall be permitted upon written request if such request is made not later than five (5) days after the time for response.” (Emphasis supplied.) Pit Stop’s request was timely filed; thus, the trial court improperly denied Pit Stop its right to be heard. Link v. Doe, 203 Ga. App. 388 (1) (416 SE2d 874) (1992); Thomas v. Schouten, 210 Ga. App. 244 (1) (435 SE2d 746) (1993). Accordingly, the denial of summary judgment must be reversed, and Pit Stop must be afforded oral argument as provided by Rule 6.3.

Decided March 14, 1995.

Bentley, Karesh & Seacrest, Gary L. Seacrest, Karsten Bicknese, Gerald P. Ruleman, for appellant.

Hill & Henry, Wm. Ralph Hill, Jr., for appellees.

2. Pit Stop’s remaining enumerations of error are moot.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2824.
    PARKER v. THE STATE.
    (455 SE2d 360)
   Beasley, Chief Judge.

Parker and three others were indicted for the November 2, 1986 rape, kidnapping, and armed robbery of a woman. Parker pled guilty to the rape and the lesser included offenses of false imprisonment and robbery, and on April 16, 1987 he was sentenced to life imprisonment for the rape and ten and twenty years probation respectively on the remaining two offenses, to run consecutively with each other and with the life sentence. The sentences were affirmed by the Superior Courts Sentence Review Panel in an order filed January 22, 1988.

The case is now before this court on Parker’s pro se appeal from the denial of his June 14, 1994, pro se “Petition to Correct Void Sentence (s) and Motion for Modification of Sentence (s)” in regard to the life sentence imposed for rape. Such an action may be brought in the trial court; habeas corpus is not the exclusive procedure for challenging the validity of a sentence. Jefferson v. State, 205 Ga. App. 687 (1) (423 SE2d 425) (1992), citing McCranie v. State, 157 Ga. App. 110, 111 (3) (276 SE2d 263) (1981).

Parker contends that inasmuch as he was not indicted as a recidivist, the imposition of a life sentence for rape constituted “a violation of due process” because OCGA § 17-10-1 (a), in the version in effect at the time of his sentencing, mandated a sentence for a determinate number of years.

When Parker was sentenced, OCGA § 17-10-1 (a) provided in pertinent part: “Except in cases in which life imprisonment or the death penalty must be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years, which shall be within the minimum and maximum prescribed by law as the punishment for the crime.” The punishment for rape was “imprisonment for life or . . . imprisonment for not less than one nor more than 20 years.” OCGA § 16-6-1 (b). The trial judge’s interpretation of the effect of OCGA § 17-10-1 (a) on OCGA § 16-6-1 (b) is at issue.

Decided March 14, 1995.

Bobby Parker, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

In a similar due process challenge to the imposition of life sentences, this court has rejected the position that under former OCGA § 17-10-1 (a) a defendant must be given a sentence for a specific number of years. Jefferson v. State, 209 Ga. App. 859, 862 (2) (434 SE2d 814) (1993). The same version of OCGA § 17-10-1 (a) applied in Jefferson’s case, which is first reported at Jefferson v. State, 199 Ga. App. 594 (405 SE2d 575) (1991). We followed the court’s holding on this issue, which figured in the latest Jefferson case, in Williams v. State, 214 Ga. App. 421, 422 (4) (447 SE2d 714) (1994), and do so here. See also Cofield v. State, 216 Ga. App. 623 (455 SE2d 342) (1995). Appellant’s sentence is valid.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       The statute also provides for the death penalty, but it is no longer permitted for rape where the victim is not killed. Coker v. Georgia, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977).

       It is noted that, pursuant to a certified question from the United States Court of Appeals for the Eleventh Circuit, the challenge presented here is under consideration by the Supreme Court of Georgia in the pending case of Echols v. Thomas, Case No. S95Q0082.


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    A94A2127.
    OWENS v. ALLSTATE INSURANCE COMPANY.
    (455 SE2d 368)
   Ruffin, Judge.

On May 23, 1991, Jack Brunson was involved in a motor vehicle accident with Donna Owens. At the time of the collision, Brunson was insured under an automobile insurance policy issued by Allstate Insurance Company (“Allstate”). On August 12, 1991, Owens’ attorney sent Allstate a letter reporting the incident and requesting payment for her medical bills. On August 30, 1991, Allstate sent Brunson a letter to the address listed on his policy, requesting that he contact Allstate to discuss the matter. Brunson did not call Allstate regarding the incident, and on October 25, 1991, Owens filed suit against him for personal injuries allegedly arising from the incident. Brunson was eventually served by publication but did not inform Allstate about the lawsuit and completely disregarded it. On August 21,1992, Owens took a default judgment against Brunson in the amount of $217,000. Brunson later assigned to Owens any claims he had against Allstate for the amount of the judgment.

In the instant case, Owens sued Allstate seeking to recover on the judgment against Brunson pursuant to coverage under Brunson’s policy. After a bench trial, the trial court found in favor of Allstate.

1. Owens contends the trial court erred in concluding that she had no standing to bring an action against Allstate under OCGA § 33-4-6. We disagree. That section generally allows an insured to recover bad faith damages and attorney fees against the insurer if the insurer in bad faith refuses to provide coverage on a covered loss. “While an automobile liability insurance company may be held liable for damages to its insured for [such damages,] it does not follow that a person injured by the insured and who is not a party to the insurance contract may complain of the negligence or bad faith of the insurer towards its policyholder in failing to adjust or compromise a claim against such policyholder, for the duty of the insurance company to use ordinary care and good faith in the handling of a claim against its insured arises out of the relationship between the insurer and the insured created by the contract or policy of insurance, and there is no fiduciary relationship or privity of contract existing between the insurer and a person injured by one of its policyholders.” (Citations omitted.) Francis v. Newton, 75 Ga. App. 341, 343-344 (1) (43 SE2d 282) (1947). See also Smith v. Govt. Employees Ins. Co., 179 Ga. App. 654 (1) (347 SE2d 245) (1986).

In the instant case since Owens was not the policyholder with Allstate, she had no standing to complain of any alleged negligence or bad faith on the part of Allstate under OCGA § 33-4-6. Nor do we agree with Owens that assignment of the judgment establishes standing to sue for such damages. The cases cited by Owens in support of this argument concern the notice and coverage provisions under OCGA § 33-7-15 and have no bearing on the issue at hand. Since the assignment does not change the fact that Owens was not the policyholder with Allstate, and she has cited no authority to the contrary, this enumeration is without merit.

2. Owens also contends the trial court erred in concluding that Brunson failed to cooperate with Allstate concerning the incident as was his duty under the policy. Owens argues the only duty under the policy which Brunson failed to perform was to forward a copy of the complaint to Allstate. However, it is clear from the policy that Brunson had duties after a collision or loss beyond sending a copy of the complaint to Allstate. The policy required Brunson to promptly notify Allstate “of how, when and where the accident or loss happened” and to notify Allstate of “the names and addresses of any injured persons and of any witnesses.” The policy further required that Brunson cooperate with Allstate in its investigation of Owens’ claims. Under the policy, Brunson was precluded from taking legal action against Allstate if he failed to comply with its terms. It is uncontroverted that after the collision, Brunson failed to contact anyone from Allstate. Furthermore, when Allstate attempted to contact Brunson at the address he listed on the policy, it received no response.

Decided March 15, 1995.

John T. McKnight, for appellant.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellee.

“When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal.” (Punctuation omitted.) Moultrie Ins. Agency v. Goodbar, 203 Ga. App. 677, 678 (1) (417 SE2d 658) (1992). The evidence in this case supported the trial court’s finding that Brunson failed to cooperate with Allstate as he was required to do and that this failure to cooperate barred him from taking any action against Allstate. Accordingly, we find no error.

3. Since we concluded in Division 2 that Brunson’s failure to cooperate barred him from taking any action against Allstate under the policy, and Owens’ rights under the policy can be no greater than the insured’s, it is unnecessary to address Owens’ remaining enumerations of error. See Dunham v. Grange Mut. Cas. Co., 176 Ga. App. 263 (335 SE2d 666) (1985).

Judgment affirmed.

Birdsong, P. J., concurs. Blackburn, J., concurs in the judgment only.


text:
    A94A2256.
    YOW v. FEDERAL PAPER BOARD COMPANY, INC.
    (455 SE2d 372)
   Andrews, Judge.

Yow appeals from the grant of summary judgment to Federal Paper Board Company, Inc. (Federal) in her suit for damages resulting from her husband’s death and her injury in a wreck with a tractor-trailer used to haul cut timber to Federal’s mill.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewing the facts on summary judgment in favor of Yow, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was that the accident occurred on May 18, 1992 as Carter, the driver of the tractor-trailer which was owned by Adams, was backing the rig, loaded with logs, into the driveway next to his home around 11:30 p.m. The logs had been cut from the Bailey tract owned by Wachovia Bank. Wachovia had sold the standing timber to Federal which operated several sawmills and paper mills. The forestry consultant for Wachovia had marked the trees to be cut with orange paint.

Federal used various loggers to cut and haul the logs used in its operations. Timber to be cut was designated by tract and one logger, individual or company, was contracted for each tract. On April 9, 1992, Federal and “Eddie Loudermilk F.C.L.” entered into a “Harvest and Delivery Agreement” in which Loudermilk agreed to “cut all trees marked with orange paint” on the First Wachovia-Bailey Tract and deliver them to the specified mill. Which logs were delivered to which mill was determined by size specifications provided by Federal and made part of all such contracts.

Adams owned two logging rigs. He operated one for Loudermilk and generally hired Green to drive the other one for Loudermilk. Green, however, had failed to obtain a commercial driver’s license as required by April 1992. He knew Carter and solicited Carter to fill in with Adams, which Carter did. Carter was paid by the “loaded miles” on logs delivered to the mill and he was given his check by Louder-milk, who then deducted the amount of Carter’s payment from the check he gave to Adams.

On the day of the accident, Carter had gotten to the Bailey Tract late, around 11:00 a.m., having driven the rig there directly from his home. He had delivered one load to the Washington mill and returned to the site where a second was loaded. The mills maintained regular hours, designated according to when the sun rose and set, for delivery to the mill. The loads were visually checked on arrival at the mill for contract compliance and this could not be done after dark. Deliveries were accepted in May until 6:00 p.m.

Carter’s second load was not on the rig until 6:00 p.m. and, as was his practice, he decided to take the rig home and deliver the load the next day. His home was located a two-and-one-half hour drive from the tract and he started home. He stopped several times to go to a convenience store and to talk to people he knew, arriving home around 11:00 p.m. He had his rig across the two-lane road lined up with his driveway and had begun to back it in when Mr. Yow came around a curve several hundred feet away and broadsided the trailer. The trailer had three lights on each side and Carter was driving with his lights on. Additionally, he had turned on his flashers prior to beginning the maneuver. Carter was of the opinion that Yow was traveling more than 45 mph. The speed limit in front of Carter’s home was 25 mph.

Yow sued Federal, contending that it was responsible for Carter’s actions under respondeat superior.

2. “The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.] ‘Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.’ [Cits.] This must be done by clear, positive and uncontradicted evidence. [Cit.]” (Emphasis supplied.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979).

“The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work.” (Citations and punctuation omitted.) Withrow Timber Co. v. Blackburn, 244 Ga. 549, 550 (261 SE2d 361) (1979).

Like Withrow, a case involving a logging truck, the present case shows only the mere possibility of a control situation. The fact that Federal, owner of the standing timber, inspects operations to ensure the right timber is being cut in accordance with the specifications and that, while loaded rigs were on the premises of Federal, they were subject to direction while Federal employees unloaded the logs and to safety standards of the mill does not evidence the necessary control. Id.

This case is also factually similar to and controlled by Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986). There, Slater’s husband was killed by a collision with a log truck owned and operated by Jackson who had a “cut and haul” contract with Canal Wood. Canal Wood was a broker which purchased timber from sellers for resale to wood processors. Canal Wood hired various independents such as Jackson to cut, haul, and deliver the wood. That contract, as the present one, identified the hauler as an independent contractor. Slater presented the following facts to support its claim that Jackson was an employee: Canal Wood retained the right to inspect the tract where the cutting was occurring, required Jackson to carry certain types of insurance and to comply with applicable state and federal laws, reserved the right to make suggestions and recommendations concerning the work, and required the work to be done according to industry standards. The court there properly concluded that these facts were unavailing.

Similarly, the facts put forward by Yow cannot overcome the affirmative showing made by Federal regarding Carter.

3. Finally, even giving Yow benefit of all possible inferences and assuming that Carter could be said to be an employee of Federal, which was vigorously contested, Federal was still entitled to summary judgment.

Having missed closing time at Federal’s mill, Carter, with the permission of Adams, the rig’s owner, drove the rig away from the mill for over two-and-one-half hours to reach his home where he arrived after 11:00 p.m.

“ ‘To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.’ (Citations and punctuation omitted.) Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983).” Schofield v. Cox Enterprises, 212 Ga. App. 354, 355 (441 SE2d 693) (1994).

Decided March 15, 1995

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, N. Beth Dorsey, for appellant.

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Lisa S. Siegel, for appellee.

Here, there is insufficient evidence of either a direct or circumstantial nature to contradict Carter’s statement that he was driving his work vehicle home for the purpose of getting home, nothing more. Braddy v. Collins Plumbing &c., 204 Ga. App. 862, 864 (420 SE2d 806) (1992).

Therefore, the grant of summary judgment to Federal was proper on the grounds set out above and the remaining arguments put forward by appellant need not be addressed.

Judgment affirmed.

Johnson, J., concurs. Beasley, C. J., concurs in the judgment only.

       Loudermilk had established a corporation, Freeman Creek Logging, Inc., as his logging company. That corporation, however, was dissolved by the Secretary of State on January 9, 1992 for failure to file its annual registration. Therefore, for purposes of this opinion, we treat Loudermilk as an individual doing business as Freeman Creek Logging.

       Loudermilk and Freeman Creek were originally named as defendants, along with Carter and Adams, but the complaint was voluntarily dismissed as to Loudermilk and Freeman Creek.