text:
    76473.
    HONDA MOTOR COMPANY, LTD. et al. v. KIMBREL et al.
    (376 SE2d 379)
   Beasley, Judge.

This appeal followed our grant of interlocutory review from the denial of a motion for partial summary judgment by defendants Honda Motor Company, Ltd., and its subsidiaries (collectively Honda Motors). On October 6, 1984, plaintiff Margaret Kimbrel was driving a 1981 Honda Accord accompanied by her daughter Tammy as a front seat passenger. Tammy was asleep with her seat reclined. While proceeding east on Highway 26 in a heavy fog at approximately 45 m.p.h., the Honda Accord collided with the rear of a Chevrolet pickup truck being operated by Robert L. Jones at approximately 12 m.p.h. Margaret testified that one could see ahead “probably ten feet” and there were no taillights on the pick-up prior to impact. Margaret sustained serious injuries and Tammy’s were extremely serious. The plaintiffs, including Tammy’s father Kenneth, who brought derivative claims, filed an action against Jones and the automobile manufacturer, Honda Motors. The amended complaint alleged that the Honda Accord was defective because it was not equipped with “passive occupant protection,” which rendered the vehicle unreasonably dangerous to its occupants.

The Honda Accord had been purchased “used” by Kenneth and was equipped with manual three-point lap and shoulder safety belts with an audible buzzer. Plaintiffs Margaret and Tammy admitted that they were not wearing their safety belts at the time of the wreck and stated it was their custom not to wear them. Margaret testified she was aware of airbags prior to the collision but did not know whether any of her family’s vehicles had airbags; she did not think so. When asked if he was aware that the Honda Accord did not have air bags, Kenneth replied: “It never crossed my mind.” He further testified that he was familiar with airbags, but his recollection as to how he had obtained information concerning them was vague, and to the best of his knowledge he had never owned a vehicle with them. Tammy could not remember having heard of airbags prior to the incident. The three plaintiffs had never seen a car so equipped.

Honda Motors moved for partial summary judgment on the claim that the automobile was defective because it was not equipped with airbags or other passive restraints. The grounds were: 1) lack of airbags did not render the vehicle defective under Georgia law because the lack of such devices was obvious and did not prevent the proper functioning of the vehicle; 2) the claim is preempted under federal law which permitted automobile manufacturers the option of three types of occupant restraint systems, one of which, lap and shoulder seat belts, was provided by Honda Motors.

Plaintiffs then filed a second amended complaint which, in effect, superseded the amended complaint. It consisted of eight counts. The first and second counts sought recovery for injuries to Tammy and were prosecuted by Margaret as her guardian. The third count on Margaret’s behalf sought recovery for injuries she sustained in the collision. In the fourth and fifth counts, Kenneth sought recovery for Tammy’s medical expenses. The sixth and seventh counts were by Kenneth and Margaret for loss of Tammy’s services. In the eighth count Kenneth sought to recover for loss of consortium resulting from his wife’s injuries.

The first count alleged, as to Tammy, that, by their actions in the design, manufacture, sale and placement of the Honda Accord into the stream of commerce, Honda Motors breached duties of care owed to her as a front seat occupant. It then alleged that Honda Motors knew, or should have known, that reclining seats as incorporated into the design of the Honda Accord rendered the vehicle uncrashworthy and the seat belt system, as designed and installed, was ineffective when the seat was in a reclining position; that the “frontal type” collision was foreseeable by Honda Motors which should have undertaken the duty to protect front seat occupants from the “second collision” impact between the body and interior portions of the vehicle; that Honda Motors had state-of-the-art engineering technology to provide reliable protection in the form of “passive” restraints such as air cushions or airbags and that Honda Motors’ failure to furnish adequate occupant protection in any form was a breach of a duty of due care owed to Tammy.

In the second count, the second amended complaint alleged that a defective condition existed in the Honda Accord at the time of its first sale for use which caused the injuries sustained by Tammy and for which Honda Motors was liable pursuant to OCGA § 51-1-11; that the vehicle was defective and unreasonably dangerous by incorporating into its design a reclining seat, and that it, together with an absence of effective “occupant protection,” rendered the vehicle uncrashworthy.

As to Margaret the second amended complaint alleged that Honda Motors by their actions in the design, manufacture, sale and placement into the stream of commerce of the Honda Accord breached duties of care owed to drivers of the vehicle, and in particular, Margaret; that the moderate-speed frontal collision experienced when she was operating the Honda Accord was foreseeable to Honda Motors; that it was also foreseeable that users of such vehicles would not utilize “active” occupant protection in the form of seat belts; that Honda Motors knew a seat belt system is effective only if the occupants are properly positioned and the belt is adjusted in a manner fully known only to Honda Motors; that non-usage of the seat belts was reasonable considering the relative knowledge Margaret had, which lack of knowledge was foreseeable by Honda Motors.

The complaint further alleged that Honda Motors owed Margaret a duty to design a vehicle which was crashworthy and provided occupant protection to users which was not dependent upon the user’s knowledge of any effectiveness of the protection nor dependent upon user’s adjustment of the “occupant protection.” This count also alleged that Honda Motors had the state-of-the-art engineering technology to have incorporated passive restraints in the form of airbags or otherwise to provide protection to vehicle occupants and the failure to do so resulted in the injuries sustained by Margaret.

Plaintiffs offered expert testimony that it was feasible to equip the 1981 Honda with airbags and that the seat belt system was ineffective when the front passenger seat was in a reclining position.

The motion for partial summary judgment was denied by the trial court, which concluded there were material issues of fact to be resolved by a jury but did not specify what those issues were.

1. As stated in their brief, Honda Motors did not move for summary judgment on the new claim regarding reclining seats but confined their motion to the claims regarding lack of airbags or other passive restraints, basically what was set forth in the original and first amendment to the complaint. As reiterated in the first supplemental brief of Honda Motors: “Appellants’ motion for partial summary judgment is, of course, limited to the claim of failure to equip the automobile with airbags or other passive restraints. Thus, plaintiffs’ allegations and proofs concerning the claim that the reclined seat rendered the seatbelts defective are not in issue on this appeal.”

As a result of the expanded basis for liability as to negligence by defendants regarding Tammy adopted in the second amended complaint, any ruling as to the original allegations would be in the nature of an advisory opinion, as the issues therein are moot. Moreover, because all the counts of the second amended complaint as to Tammy contained allegations which inherently and inextricably involved reclining seats with an alleged defective condition, rendering seat belts ineffective and thus mandating some type of passive restraint, by Honda Motors’ concession those counts are not at issue on this appeal. In fact, the only issue remaining concerns Margaret’s claim for damages and Kenneth’s claim for loss of consortium as to her; for only as to Margaret are the issues solely based on the absence per se of airbags or other passive restraints.

2. Even though it is predicated on negligence rather than strict liability, which was the original cause alleged, the third count of the second amendment tends to track the allegations of the original complaint but provides embellishment insofar as it seeks to anticipate defenses such as assumption of the risk and failure to exercise ordinary care for one’s own safety.

The essential issue is whether Honda Motors negligently created a defective condition by not supplying airbags. The parties have argued exhaustively regarding preemption by federal law, but we must first determine if there is any right to recover under Georgia law, because preemption results where state law conflicts with or is more stringent than federal law and regulations. Ray v. Atlantic Richfield Co., 435 U. S. 151, 158, 163, 165-6 (98 SC 988, 55 LE2d 179) (1978); Fidelity Fed. S & L Assn. v. De La Cuesta, 458 U. S. 141, 152 (102 SC 301, 73 LE2d 664) (1982); Quaker Oats Co. v. New York, 295 N. Y. 527, 537 (68 NE2d 593) (1946), and United States Supreme Court cases cited.

“[W]hat duty a defendant owed a plaintiff is ... a policy problem — a matter of law.” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853) (1984). Our public policy as expressed by the legislature evinces a considered posture of laissez-faire regarding occupant protection and restraints. Since 1964 to September 1, 1988, Georgia has required only that two sets of safety belts be furnished for the front seat of an automobile, and even then not necessarily by the manufacturer. OCGA § 40-8-76 (a) (1). Added in 1983, subsection (d) provides: “Violation of this Code section shall not constitute negligence per se nor contributory negligence per se.” Ga. L. 1983, pp. 1464, 1466. The Vehicle Equipment Safety Compact of 1964 (Ga. L. 1964, p. 463), enacted for the promotion of safety standards and development of safety features, was repealed March 16, 1983 [Ga. L. 1983, p. 691]. This indicates a minimal excursion into the field of vehicle safety regulation involving occupant protection. Thus, from the legislative history emerges a policy of permitting federal regulations to set the minimum standards in that area. This leads to the conclusion that Georgia requirements as expressed by the code are less than the federal.

As interpreted by our courts, a similar result is reached. In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 699 (1) (294 SE2d 541) (1982). Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design, Hunt v. Harley-Davidson Motor Co., 147 Ga. 44, 46 (4) (248 SE2d 15) (1978), or to provide a collision safe vehicle. Friend v. Gen. Motors Corp., 118 Ga. App. 763, 764 (2) (165 SE2d 734) (1968). The manufacturer is under no obligation to make a machine “accident proof or foolproof,” Fortner v. W. C. Cayne Co., 184 Ga. App. 187, 190 (2) (360 SE2d 920) (1987), and Poppell v. Waters, 126 Ga. App. 385, 387 (1) (190 SE2d 815) (1972), or even “more safe.” Stovall & Co. v. Tate, 124 Ga. App. 605, 611 (1) (184 SE2d 834) (1971). The public policy enunciated by the legislature is a predominate factor in our determination. Rhodes v. R. G. Indus., 173 Ga. App. 51, 52 (1) (325 SE2d 465) (1984).

Here the vehicle is not alleged to be defective in the operational sense but in that it did not contain what the plaintiffs contend to be the best or more advanced safety device. The instant situation is in-apposite to Ford Motor Co. v. Stubblefield, 171 Ga. App. 331 (319 SE2d 470) (1984), which involved a defective injury-causing component rather than the absence of a superior safety device. If a “product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril.” Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 847 (2) (321 SE2d 353) (1984) [affirmed Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985)], where it was observed that with regards a product-design case “only semantics distinguishes” between a cause of action for negligence and liability under OCGA § 51-1-11. See Griffin v. Crown Central Petroleum Co., 171 Ga. App. 534 (320 SE2d 383) (1984).

In summary, the threshold issue is whether the absence of passive restraints or airbags can properly be considered a defective condition so as to establish a breach of duty on the part of Honda Motors. Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga. App. 811, 813 (295 SE2d 183) (1982). The answer is no. Stovall & Co., supra; Poppell, supra; Hunt, supra; Greenway, supra; Stodghill, supra; Coast Catamaran Corp., supra; Trailmobile, Inc. v. Smith, 181 Ga. App. 134 (351 SE2d 528) (1986); Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201 (3) (366 SE2d 792) (1988).

Because the Georgia standard of duty does not exceed the federal, Georgia would mandate only that federal standards be met. See Federal Motor Vehicle Safety Standard 208, 49 C.F.R. § 571.208 (1981). When the case law and statutory pattern are combined the result is that recovery for negligent product design could not be had against the manufacturer of a vehicle in compliance with federal regulations as to safety restraints. See Russell v. Cynwid Investments, 142 Ga. App. 410 (236 SE2d 147) (1977); Baird v. Gen. Motors Corp., 654 FSupp. 28 (N.D. Ohio, 1986). In these circumstances there would be no basis for requiring a manufacturer to furnish passive restraints or airbags in lieu of safety belts and a jury would not be authorized to find any breach of duty in the failure to supply them to a consumer.

3. Insofar as the third count of the second amendment to the complaint might encompass the characteristics of an action for strict liability under OCGA § 51-1-11, there is no basis for recovery. “The term ‘not merchantable and reasonably suited to the use intended’ as used in this statute means ‘defective.’. . . The existence of a defect is crucial, because a manufacturer is not an insurer against all risks of injury associated with its product.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (2) (299 SE2d 897) (1983). Accord Center Chem. Co. v. Parzini, 234 Ga. 868, 869 (2) (218 SE2d 580) (1975); Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118, 122 (3) (325 SE2d 460) (1984) [physical precedent]. Safety belts rather than airbags would not be a defect within the meaning of the code section. Poppell, supra; Hunt, supra; Talley v. City Tank Corp., 158 Ga. App. 130 (279 SE2d 264) (1981); Trailmobile, supra; Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778 (357 SE2d 127) (1987).

Neither Margaret nor Kenneth, whose eighth count claim is derivative, are entitled to recover from Honda Motors based upon the allegations of the second amended complaint. It was error to deny summary judgment on this issue and the trial court is directed to grant the motion of Honda Motors on counts three and eight.

Judgment affirmed in part and reversed in part with direction.

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

Decided November 7, 1988 —

Rehearings denied November 30, 1988.

Dickey, Whelchel, Brown & Readdick, Richard A. Brown, Jr., John E. Bumgartner, for appellants.

Mundy & Gammage, Gerry E. Holmes, Harris, Watkins, David & Chambless, Joseph H. Chambless, Mary M. Katz, for appellees.

       “A rule of the common law which permits the recovery of monetary damages for its breach self-evidently sets a standard and has been held to be a form of state regulation subject to the supremacy clause.” Cox v. Baltimore County, 646 FSupp. 761, 763 (D. Md., 1986), citing San Diego Unions v. Garmon, 359 U. S. 236, 247 (79 SC 773, 3 LE2d 775) (1959). See Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (84 SC 784, 11 LE2d 661) (1964).
      See discussion of the preemption doctrine with regard to airbags found in Cox, supra. See also 15 USCA § 1392 (d) and § 1397 (c).


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    76949.
    SAVANNAH LAUNDRY & MACHINERY COMPANY, INC. v. HOME INSURANCE COMPANY. OWENBY v. HOME INSURANCE COMPANY.
    76950.
    (376 SE2d 373)
   Benham, Judge.

Appellant Owenby was seriously injured in March 1984 when a boiler door on a steam cooker in the kitchen of his employer blew off. Appellant Savannah Laundry & Machinery Company, Inc. (“Savannah”) had made repairs to the boiler two years before Owenby’s injury. When Owenby filed suit against Savannah seeking damages for the injuries he had sustained, Savannah requested its insurance carrier, appellee The Home Insurance Company (“Home”) to defend and pay any judgment rendered against Savannah. Home sought a declaration of its obligations under the insurance policy, and the trial court granted Home’s motion for summary judgment. We have consolidated the separate appeals each appellant filed from that judgment.

For purposes of the present declaratory judgment action it is undisputed that Savannah installed a nut other than the original one on the stud securing the boiler door when it repaired the boiler in 1982. At issue is the “completed operations hazard” exclusion to the general liability provision of the policy issued by Home to Savannah.

The pertinent provisions follow:

“ ‘[CJompleted operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:

“(1) when all operations to be performed by or on behalf of the Named Insured under the contract have been completed,

“(2) when all operations to be performed by or on behalf of the Named Insured at the site of the operations have been completed, or

“(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.

“The complete operations hazard does not include bodily injury or property damage arising out of

“(a) operations in connection with the transportation of property, unless the bodily injury or property damage arises out of a condition in or on a vehicle created by the loading or unloading thereof, “(b) the existence of tools, uninstalled equipment or abandoned or unused materials, or

“(c) operations for which the classification stated in the policy or in the company’s manual specifies ‘including completed operations.’ ” 1. Appellants argue that the completed operations exclusion is not applicable because the operation was not a completed operation inasmuch as it is alleged that the proper nut was not installed. It is appellee’s position that the operation was complete and was, if anything, one in which replacement of the improper nut was necessary, thereby making the operation one deemed completed under the completed operations exclusion. We are in agreement with appellees and, accordingly, affirm the judgment of the trial court.

“ ‘A contract or operation is deemed completed when the work contracted for or undertaken has been finished, even though minor details of performance may remain.’ 12 Couch on Insurance 2d (Rev. ed.) § 44A:24.” Hartford Accident &c. Co. v. Strain Poultry Farms, 166 Ga. App. 334, 336 (303 SE2d 781) (1983). Under the policy, “[operations shall be deemed completed at the earliest of the following times: (1) when all operations to be performed by . . . the named Insured under the contract have been completed, (2) when all operations to be performed by . . . the Named Insured at the site of the operations have been completed, or (3) when the portion of the work out of which the injury or damage arises has been put to its intended use. . . .” There is no question that the boiler and inspection plate door had been put to its intended use for a period of nearly two years prior to Owenby’s injury. As if that were not enough to support the conclusion that Savannah’s operation concerning the boiler was completed, the policy exclusion goes on to say that an operation is deemed completed if it is otherwise complete but “may require further service, maintenance work, or correction, repair or replacement because of any defect or deficiency. . . .” Thus, the policy excludes from coverage a completed operation that was improperly installed. See Continental Ins. Co. v. Hawkins, 170 Ga. App. 274 (316 SE2d 596) (1984).

There is support in the decisions of other jurisdictions for appellants’ position that an injury resulting from improperly installed equipment is legally equivalent to an injury resulting from uninstalled equipment. See, e.g., Chancler v. American Hdw. Mut. Ins. Co., 109 Idaho 841 (712 P2d 542, 549) (1985); U.S.F. & G. v. Nat. Tank & Machine Works, 402 S2d 925, 928 (Ala. 1981). The courts involved in these cases have concluded that an operation is not complete when not performed properly. Such an interpretation, however, “would virtually render ineffective the exclusionary provision” (58 ALR3d 12, § 2 (a)), and render meaningless the “further operations” clause contained in the completed operations exclusion. The Chancier and U.S.F. & G. courts have also both concluded that the failure to install the proper equipment (thereby making it uninstalled equipment) resulted in coverage under the general liability policy due to the operation of the “uninstalled equipment” exception to the “completed operations” exclusion. However, Owenby’s injuries are not alleged to have been caused by the presence of uninstalled equipment, but by its absence. We decline to hold that the “uninstalled equipment” exception covers an allegation of negligent installation.

2. Appellants contend that appellee is estopped from denying coverage. Savannah’s president executed an affidavit averring that the insurance company’s agent was instructed by Savannah’s president to provide liability coverage to cover all injury and damage claims that could potentially arise out of the repair, maintenance, and inspection of boilers, and that the affiant was informed that the policy’s coverage included all the potential risks faced by Savannah. The affiant also stated he was not aware of the policy’s endorsement for an exclusion for completed operations hazards and that he would not knowingly have agreed to it. In support of appellee’s motion for summary judgment, the insurance agent executed an affidavit in which she stated that she had discussed the insurance coverage obtained with Savannah’s president; that she and he had discussed in detail that there was no coverage for completed operations hazard; and that he had signed an endorsement which stated that it was “understood and agreed that Completed Operations Hazards and Products Hazard are excluded. ...”

“That the . . . insured was under a duty to examine [its] policy and ascertain for [itself] what coverage [it] had is well settled. [Cits.] . . . The insured was not only free to examine the contract, [it] was under a duty to do so, and if [it] had done that [it] would have observed just what coverage it provided to [it]. If it was not what [it] wished to have [it] could have renegotiated . . . or . . . returned it as unacceptable and negotiated a contract with another company ... If the policy issued (was) essentially different from the one that the [insured] desired, the remedy . . . would have been to reject, when tendered, the policy as written . . . [I]f the applicant neglects to examine the policy delivered to [it] the contract is binding . . . [Cit.]” Parris & Son v. Campbell, 128 Ga. App. 165 (13) (196 SE2d 334) (1973). “[T]he doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer . . . , are not available to bring within the coverage of a policy risks expressly excluded by its terms. [Cit.]” St. Paul Fire &c. Co. v. Cohen-Walker, Inc., 171 Ga. App. 542 (2) (320 SE2d 385) (1984).

Decided November 4, 1988 —

Rehearing dismissed December 1, 1988.

Jones, Bordeaux & Associates, Noble L. Boykin, Jr., for appellant (case no. 76949).

Bouhan, Williams & Levy, Walter C. Hartridge, Edwin D. Robb, Jr., Roy E. Paul, Peter D. Muller, for appellant (case no. 76950).

Brigid F. Dzierzanowski, for appellee.

Based upon the records before us, the trial court did not err in granting summary judgment to appellee.

Judgments affirmed.

McMurray, P. J., and Pope, J., concur.


author: Deen, Presiding Judge. Carley, Judge,

text:
    77845.
    BELL et al. v. BENNETT et al.
    (375 SE2d 884)
   Deen, Presiding Judge.

In October 1986 Mr. and Mrs. Bell, appellants here, brought an action against appellee Bennett, alleging that in August 1985 he had negligently struck with his own vehicle the automobile in which they were riding, causing physical injury to both plaintiffs. Attempts to serve Bennett at the address he had given to the investigating officer, his parents’ home in Stone Mountain, Georgia, were unsuccessful, his mother stating that he had moved to Manchester, Georgia, and was living at an address unknown to her. Efforts to locate Bennett in either DeKalb County or Manchester continued.to meet with failure, and on plaintiffs’ motion the DeKalb County State Court on August 11, 1987, ordered the appointment of a private investigator, previously hired by plaintiffs, as special process server. On August 12 process was served by leaving the summons and complaint with Bennett’s mother at the Stone Mountain address. Plaintiffs’ uninsured motorist carrier, appellee Allstate Insurance Company, was served August 13, 1987.

Defensive pleadings were timely filed for both defendants, Bennett raising, inter alia, the defense of insufficient service and the running of the statute of limitation, and filing a motion to dismiss on the cited grounds. On December 1, 1987, the court entered an order authorizing service by publication, and the advertisement appeared for the requisite four weeks. On December 11 the court granted Bennett’s motion to dismiss on the ground of insufficient service, the order (drawn by Bennett’s counsel) citing lack of due diligence on plaintiffs’ part. On February 26, 1988, appellee Allstate moved for summary judgment, alleging that since appellee Bennett did have liability insurance coverage with another carrier, General Insurance Company, at the time of the collision, Allstate’s uninsured motorist coverage did not apply. Oral argument was scheduled for May 3, 1988, but on May 2 counsel received a telephone call from the trial court stating that, for unspecified reasons, oral argument would not be held; whereupon, on that same day, appellants’ counsel filed a response to Allstate’s motion. On July 8, 1988, summary judgment was granted, the trial court’s order stating that the Bells’ brief was not considered because it was untimely filed.

The Bells appeal, enumerating as error (1) the trial court’s finding that plaintiffs/appellants had failed to exercise due diligence in perfecting service and (2) the trial court’s failure to permit oral argument and also her failure to consider the holding of Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632) (1980), which would provide that the Bells’ uninsured motorist coverage did apply in the circumstances of the instant case. Held:

1. Appellants allege that they were given no opportunity to examine the order drafted by Bennett’s counsel prior to the court’s ruling on the motion for dismissal for lack of service. They further allege that they had requested that the dismissal be without prejudice and that there be no indication of lack of due diligence. The court struck the words “with prejudice” but let stand the phrase indicating lack of due diligence. The record shows that the court ordered that service by publication be approved and, further, that in ordering appointment of a special process server, the trial court acknowledged expressly that Bennett was avoiding service. The trial court erred in signing the order as drafted.

2. Smith, supra, is a case closely similar on its facts to the case at bar. The defendant, like Bennett here, could not be located for personal service in an action stemming from an automobile collision; defendant’s automobile insurer did not deny coverage. “Because an in personam judgment [could] not be obtained against [the elusive defendant], [the plaintiff] cannot recover from [the defendant’s insurer]. Without some specific statutory authorization, an action cannot proceed directly against the liability insurance carrier until a judgment is obtained against the tortfeasor or his liability is otherwise fixed. See, e.g., Arnold v. Walton, 205 Ga. 606 (54 SE2d 424) (1949). In short, [plaintiff] was precluded from proceeding with his tort action against either [the defendant in the tort action] or [the defendant’s insurer].” Id. at 50. The trial court granted the insurer’s motion to dismiss.

Decided November 22, 1988 —

Rehearing denied December 1, 1988.

Morse & Ontal, Jack O. Morse, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Chambers, Mabry, McClelland & Brooks, V. Jane Reed, Lawrence J. Hogan, for appellees.

In reviewing Smith, supra, the Supreme Court cited OCGA § 33-7-11 (e) [then Code Ann. § 56-407.1 (e)] in pertinent part: “In cases where the owner or operator of any vehicle causing injury or damage is known and . . . [is] named as defendant . . . but the person . . . cannot after due diligence be found within the state, or conceals himself to avoid the services of summons, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner or driver in respect to whom service is to be made and that he is a necessary or proper party to the action, the judge may grant an order that the service be made ... by the publication of summons. A copy of any action filed and all pleadings thereto shall be served . . . upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant.” The court emphasized the remedial nature of uninsured motorist legislation and held, at 52, that the trial court erred in granting the insurer’s motion to dismiss: “Appellant [plaintiff] is not precluded from proceeding with his suit against [his own insurer] on the basis of [OCGA § 33-7-11 (e)].” Under this authority, appellant is clearly correct in his contention that in the fact situation of the instant case he may properly proceed against Allstate, and the trial court erred by failing to consider Smith before making its ruling.

3. In view of our holding in Division 2, the issue of the denial of oral argument is moot.

Judgment reversed.

Sognier, J., concurs. Corley, J., concurs specially.

Carley, Judge,

concurring specially.

The trial court erred in granting summary judgment in favor of Allstate because the rationale of Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632) (1980) is clearly applicable, controlling and dispositive on the issue before the Court.


author: Pope, Judge.

text:
    77145.
    FAUST v. THE STATE.
    (375 SE2d 889)
   Pope, Judge.

Defendant Carey Faust was convicted of burglary and appeals. Evidence was presented that the Lloyd residence in Athens, Georgia, was burglarized between the hours of 8:00 a.m. and 4:30 p.m. on Monday, September 14, 1987. Defendant knew Mr. Lloyd and where he resided because approximately one month before the burglary defendant called at Mr. Lloyd’s residence trying to sell jewelry. He had also previously asked Mr. Lloyd for a job in Lloyd’s business. On the day of the burglary, Mr. Lloyd saw defendant on the street downtown at approximately 8:00 a.m. and they spoke to each other. When Mr. Lloyd returned home at approximately 4:30 p.m., he discovered that the door to his house had been kicked in and that several pieces of jewelry, including a man’s gold and diamond ring, and a portable radio, commonly referred to as a “boom box,” was missing.

Between 11:00 a.m. and 11:30 a.m. on September 14, two police officers spotted defendant and Ray Charles Brown at a street corner in Athens. Defendant was in possession of a large boom box which one of the officers testified was similar to the one taken in the burglary. Ray Charles Brown was attempting to sell a gold and diamond ring to cars stopped at the traffic light. At approximately 11:40 a.m. two other police officers spotted defendant and Ray Charles Brown walking down the street together approximately five miles from the Lloyd residence. According to the officers, when defendant and Brown saw the patrol car, they began to act “fidgety.” The officers turned their vehicle around and pulled into a driveway. Brown kept walking, but defendant came toward the patrol car and said “It’s not stolen.” Defendant offered the box to the officers for inspection and suggested they record the serial number. Defendant further volunteered that he tried to buy the box from two white males on the previous Friday, again from two black males on Saturday, a black male and a white male on Sunday morning, a black male on Sunday evening and that he finally purchased the box from a black male earlier in the morning on Monday, September 14. The officers instructed defendant to hold onto the box in case they needed it. The following morning, the officers learned of the burglary of the Lloyd residence and the report of the missing boom box which matched the description of the one they had seen in defendant’s possession the previous morning. The officers went to defendant’s apartment to investigate and defendant told them he had sold the box back to the man from whom he had purchased it because he became concerned that it might have been stolen. He claimed he knew the man on sight but did not know his name. The following day, defendant gave the officers the name of Floyd Johnson as the one to whom he had sold the box after first giving them the name of another individual. The police recovered the box from Floyd Johnson.

At trial, Johnson testified he saw defendant on the street with the police officers on the morning of September 14 as he was on his way to the barber shop. Ten to fifteen minutes later, defendant entered the barber shop with the boom box and Johnson bought it from him. Johnson turned the box over to the police when they came to his house and informed him it had been stolen.

1. Defendant argues the evidence presented at trial was insufficient to support a guilty verdict and that the court erred in denying his motion for directed verdict. “Unexplained recent possession of stolen goods permits a jury to infer that the accused committed the theft. Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981). Even though the accused offers an explanation of possession of stolen property, the jury may find that his explanation is neither reasonable nor satisfactory. Kimsey v. State, 164 Ga. App. 377 (296 SE2d 159) (1983) ; Williamson v. State, supra.” Barrett v. State, 166 Ga. App. 722, 723 (305 SE2d 450) (1983). Evidence that the defendant gave incredible and inconsistent explanations for possession of recently stolen property is “another positive fact that the jury [is] authorized to take into account” in determining guilt. Rogers v. State, 185 Ga. App. 211, 213 (363 SE2d 846) (1987). The evidence in this case, in addition to defendant’s possession of recently stolen goods, was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. See Rogers v. State, supra at (1); Barrett v. State, supra.

2. Defendant was indicted for burglary only. Theft by receiving stolen property is not a lesser included offense of burglary. State v. Bolton, 144 Ga. App. 797 (1) (242 SE2d 378) (1978); see also Adams v. State, 164 Ga. App. 295 (2) (297 SE2d 77) (1982); Wells v. State, 127 Ga. App. 109 (192 SE2d 567) (1972). Thus, the trial court did not err in refusing to instruct the jury on the offense of theft by receiving stolen property. See State v. Hightower, 252 Ga. 220 (312 SE2d 610) (1984) ; Givens v. State, 184 Ga. App. 498 (3) (361 SE2d 830) (1987).

3. The police officer who testified he and his partner stopped to question defendant and Ray Charles Brown testified he told his partner “I need to talk to them anyway.” Defendant argues the trial court erred in denying his motion for mistrial on the ground that the officer’s testimony improperly raised the issue of defendant’s character. No inference derogatory of defendant’s reputation or character can be drawn from the fact that a police officer had need to talk to him. See Johnson v. State, 188 Ga. App. 411 (1) (373 SE2d 93) (1988) (the testimony of a former police officer, during the voir dire of the jury, that he knew defendants did not place defendants’ character in issue and provided no ground for disqualifying the jury); Welborn v. State, 132 Ga. App. 207 (3b) (207 SE2d 688) (1974) (the testimony of a police officer that he had occasion to talk with defendant in the past did not put defendant’s character in issue). Thus, the trial court did not err in denying defendant’s motion for mistrial.

Decided December 1, 1988.

Caleb B. Banks, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    77238.
    ORTIZ v. THE STATE.
    (375 SE2d 891)
   Beasley, Judge.

Michael Ortiz was convicted, in a bench trial, of trafficking in cocaine (OCGA § 16-13-31) and giving a false name to a law enforcement officer (OCGA § 16-10-25).

He enumerates as error the court’s denial of his motion to suppress the evidence seized from his person. The only issue is whether defendant gave his consent to the body search or only to the search of the totebag he was carrying while engaged in changing planes at the Hartsfield International Airport.

He attempts on appeal to broaden the issue so as to attack also the voluntariness of the consent, but he is confined to the ground raised below. First, “it is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.]” Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981). Second, at the motion hearing, defendant admitted he gave consent to the search of the totebag and never stated or even inferred that this consent was not voluntary. Under the circumstances of the consent and search, in which the consent relied upon for the search was the instance of consent referred to by defendant, he cannot now contend that the body search consent was involuntary and the totebag search consent was voluntary. The question is merely the scope of the consent.

A narcotics agent testified that he and another agent were watching people exit a plane from Miami, a city known as a drug source, when he noticed appellant because of his colorful clothing. Several factors combined to arouse the agent’s suspicions that appellant and his companion were transporting drugs. They approached the two and identified themselves. After asking several questions about identification and travel, the answers to which increased the suspicions, the agent told Ortiz that he “would like your cooperation and allow us to search your bag and your person.” Ortiz replied affirmatively and handed the totebag to the agent, who offered to go to a more private place. When Ortiz agreed, the agent handed the totebag back to Ortiz and the four men went to a small room fifty to a hundred feet away.

Decided December 1, 1988.

Susan M. Kirby, Bruce S. Harvey, for appellant.

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

The agent searched the totebag, in which he found no drugs, and a third officer who had joined them patted down Ortiz. He found four plastic bags of white powdery substance, which evidence showed was cocaine, between Ortiz’ underwear and a girdle he was wearing to retain the bags. The first agent then found more cocaine and Ortiz’ driver’s license, showing his true identity, in the back pocket of his pants. At no time did Ortiz “verbalize” a withdrawal of the consent he had given. After this direct examination, the agent repeated three more times during cross-examination that he asked for permission to search the bag and the person and that Ortiz consented.

Ortiz then testified and said that he gave permission to search the bag but not his person. He said he did not understand that the agent was asking him to consent to a search of his body, his person. He admitted that he lied when he told the agent he had no identification and that he did not give his true name, and he testified that he was now telling the truth and “I feel that I already have learned a lesson.”

Thus the only issue was one of credibility, which the trial court expressly recognized in ruling, and on appeal we cannot conclude that there was no evidence to support the resolution of fact against the defendant. “Unless clearly erroneous, the trial court’s rulings on disputed facts and credibility at a suppression hearing must be accepted by this court on appeal, [Cits.], . . .” Williams v. State, 251 Ga. 749, 792 (8) (a) (i) (312 SE2d 40) (1983). On a motion to suppress evidence, the factfinder is the court. Robinson v. State, 162 Ga. App. 690, 691 (292 SE2d 109) (1982).

Judgment affirmed.

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


text:
    77414.
    MOTES v. THE STATE.
    (375 SE2d 893)
    Decided December 1, 1988.

      L. Eddie Benton, Jr., for appellant.
    C. Andrew Fuller, District Attorney, Daniel A. Summer, Assis

      tant District Attorney, for appellee.
   Pope, Judge.

Defendant Travis Charles Motes was convicted of arson in the second degree and cruelty to animals. The evidence showed that defendant and his brother, disturbed at the barking of a neighbor’s dog, threw gasoline on the dog and the doghouse to which the dog was chained and then set fire to the gasoline. The doghouse burned down and the dog was severely burned and had to be destroyed as a result of the injuries received in the fire.

1. In his first enumeration of error, defendant argues that the trial court committed harmful, prejudicial and reversible error in denying his motion for new trial. Defendant does not support this vague and broad assertion with any argument or citation of authority. Thus, it is deemed abandoned pursuant to Rule 15 (c) of the Rules of the Court of Appeals of the State of Georgia. See Pennsylvania Millers Mut. Ins. Co. v. Davis, 186 Ga. App. 301 (3) (367 SE2d 91) (1988).

2. Defendant also argues that his convictions for arson in the second degree and cruelty to animals were based upon the same act and that his conviction for cruelty to animals must be vacated. We disagree.

OCGA § 16-1-7 (a) provides: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted for more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” “One crime is not included in the other if ‘they involve proof of distinct essential elements.’ [Cits.]” Freeman v. State, 184 Ga. App. 678 (1) (362 SE2d 413) (1987).

The essential elements of arson in the second degree established in this case were defendant’s knowingly causing, by fire or explosion, the destruction of a doghouse. See OCGA § 16-7-61 (a). The essential elements of cruelty to animals established by the evidence in this case showed an act which caused unjustifiable physical pain, suffering and death to a dog. See OCGA § 16-12-4 (a). Clearly, the essential elements of each of the crimes differ. The evidence showed that the State carried its burden of proving the distinct elements of each crime.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77099.
    CLAYBROOKS v. THE STATE.
    (375 SE2d 880)
   Pope, Judge.

Defendant Fred Allen Claybrooks was convicted of the offense of trafficking in cocaine. On appeal he challenges the sufficiency of the evidence and contends that his conviction was based solely on the uncorroborated testimony of an alleged accomplice.

The record shows that the defendant and the alleged accomplice, Oliver Jones, Jr., were traveling from Florida to Alabama when they were stopped in Georgia by an officer of the Georgia State Patrol for speeding. Jones was driving at the time of the stop, and upon request of the officer, consented to a search of the rental car in which they were traveling. The officer testified that he asked for consent to search after receiving inconsistent stories as to where defendant and Jones had been, although both apparently stated that the purpose of their trip was to look at construction sites. The search yielded a small amount of cocaine in a cigarette pack in the front seat and a larger quantity (over 200 grams) in a McDonald’s bag behind the driver’s seat. The officer also found a money bag located in Jones’ overnight bag.

Jones testified at trial that he and the defendant were making a cocaine run for the defendant’s employer, and that the employer gave both the keys to the rental car and the money bag to the defendant. Jones further testified that when they arrived in Hollywood, Florida the defendant dropped him off at a fast food restaurant while the defendant went to buy the cocaine. Jones testified that when the defendant returned to pick him up, he had the cocaine in a white plastic bag which was placed inside a McDonald’s bag. Jones admitted that he had been on cocaine runs before.

Defendant testified that Jones and he were traveling at the behest of his employer in order to check out a possible construction job in Florida. He stated that his employer gave him the keys to the car and showed him where the rental agreement was located but that the first time he saw the money bag was when the officer found it during the search of the car. The defendant further testified that when they arrived in Florida, Jones left him at a fast food restaurant and told him he would bring the man who knew about the construction job to the restaurant so they could both talk to him. However, Jones returned alone and told the defendant the job had not worked out and they should head back home. The defendant also presented the testimony of two inmates, who had been incarcerated with both the defendant and with Jones, who testified that Jones told them that the defendant was a junkie and did not know that there were drugs in the car. The witnesses further testified that Jones stated he wished he had told the defendant the drugs were in the car because the defendant might have attempted to flee the scene and dispose of the drugs if he had known about them.

Decided November 15, 1988 —

Rehearing denied December 2, 1988

Morris & Webster, Lee W. Fitzpatrick, for appellant.

David E. Perry, District Attorney, Ronald F. Adams, Assistant District Attorney, for appellee.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. . . . The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. [Cit.] 'However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ [Cit.]” Castell v. State, 250 Ga. 776, 780 (301 SE2d 234) (1983).

Here there was no evidence presented, slight or otherwise, corroborating the testimony of the accomplice that the defendant participated in the crime of trafficking in cocaine. Moreover, the defendant presented testimony which tended to substantiate his version of events and discredit the accomplice. Although corroboration may be by circumstantial evidence, LeCounte v. State, 183 Ga. App. 407 (2) (359 SE2d 193) (1987), “[t]he evidence must do more than merely cast a grave suspicion of guilt on the accused.” Powell v. State, 166 Ga. App. 393, 394 (304 SE2d 515) (1983). Consequently, we agree with defendant that the evidence was insufficient to sustain the verdict and that the judgment must be reversed. See Reed v. State, 127 Ga. App. 458 (1) (194 SE2d 121) (1972).

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    77364.
    CHEM TECH FINISHERS, INC. v. PAUL MUELLER COMPANY. DALTON SHEET METAL COMPANY, INC. v. CHEM TECH FINISHERS, INC. DALTON SHEET METAL COMPANY, INC. v. PAUL MUELLER COMPANY.
    77365.
    77366.
    (375 SE2d 881)
   Sognier, Judge.

Chem Tech Finishers, Inc. (Chem Tech), a commercial dyer and finisher of carpet, brought suit against Dalton Sheet Metal Company, Inc. (Dalton) and Paul Mueller Company (Mueller) to recover damages for breach of warranty in connection with the sale to Chem Tech of heat transfer equipment for use in its dye becks, which equipment was designed and manufactured by Mueller and distributed by Dalton. The trial court granted summary judgment to Mueller, and Chem Tech appeals in Case No. 77364. In Case No. 77365, we granted Dalton’s application for interlocutory appeal of the trial court’s denial of its motion for summary judgment against Chem Tech. In Case No. 77366, Dalton cross appeals from the grant of summary judgment to Mueller.

The record reveals that in the fall of 1982 Chem Tech sought to replace the heating coils in its dye becks and entered into negotiations with Dalton, which recommended replacing the coils with Temp-Plates manufactured by Mueller. Dalton furnished Chem Tech with sales literature provided by Mueller and introduced Chem Tech personnel to Mueller’s authorized local agent, Kent L. Fredrick. The literature contained representations that the Temp-Plates would generate a rate of temperature rise in the dye becks of 3 degrees per minute, and that use of the Temp-Plates would result in energy savings. Chem Tech decided to purchase the Temp-Plates, and Dalton contracted to purchase them from Mueller and resell them at a profit to Chem Tech. The contract between Mueller and Dalton expressly limited Mueller’s liability to repair or replacement of defective goods within one year of shipping. The plates were made to correspond to Chem Tech’s specifications, and were shipped by Mueller directly to Chem Tech in August 1983. The plates did not perform as the Mueller literature represented, and actually resulted in an increased energy expenditure. The evidence is in conflict whether, when, and to whom Chem Tech gave notice of the problem, but it is uncontroverted that in May 1984 the Temp-Plates were replaced by Mueller.

1. In Case No. 77364, Chem Tech contends the trial court erred by granting summary judgment in favor of Mueller on the ground that no privity existed between them because where, as here, the manufacturer’s warranty clearly was intended to extend to an identifiable third party, no privity is required.

We note initially that although the requirement of privity has been abolished for tort actions and actions against manufacturers of defective products brought by “any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property . . . ,” OCGA § 51-1-11 (a) and (b) (1), no such change has been effected as to corporations damaged by defective products. Chem Tech argues that in Stewart v. Gainesville Glass, 131 Ga. App. 747 (206 SE2d 857) (1974), aff’d 233 Ga. 578 (212 SE2d 377) (1975), this court held that an express warranty runs only to the original purchaser except where it appears “that both parties to the contract intended that a third person should be the beneficiary,” id. at 753, and that the facts sub judice fit into the exception, rather than the rule, in Stewart. However, nothing in the contract between Mueller and Dalton obligates Mueller to render any performance whatsoever to Chem Tech — only to Dalton. While it is true that the parties to that contract knew that Chem Tech would eventually benefit from their contract, “[i]n order for a third party to have standing to enforce a contract under [OCGA § 9-2-20] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. [Cits.]” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976). Moreover, nothing in the warranty contained in Mueller’s sales brochures indicates Mueller intended that its representations extend or apply specifically to Chem Tech, and “ ‘if a defendant is not the seller to the plaintiff-purchaser, the plaintiff as the ultimate purchaser cannot recover on the implied or express warranty, if any, arising out of the prior sale by the defendant to the original purchaser, such as distributor or retailer from whom plaintiff purchased the product. [Cits.]’ [Cits.]” Thomaston v. Ft. Wayne Pools, 181 Ga. App. 541, 543 (352 SE2d 794) (1987). Accordingly, we do not agree with Chem Tech that it was entitled to maintain an action based on warranty here where no privity existed between the parties, and the trial court properly granted summary judgment in favor of Mueller. See id.

2. Because Chem Tech may not recover on warranty claims against Mueller, see Div. 1, we need not address Chem Tech’s alternate theory that it may recover because Mueller breached its limited warranty to repair or replace the defective Temp-Plates by failing to respond to Chem Tech’s complaints for over eight months.

3. In Case No. 77365, Dalton contends the trial court erred by denying its motion for summary judgment against Chem Tech because it had limited its warranty to Chem Tech to repair or replacement of defective parts, and replacement was accomplished when ■Mueller replaced the Temp-Plates in May 1984.

The contract between Dalton and Chem Tech was prepared by Dalton and contained the following language: “The equipment manufactured by us is guaranteed to be free from all latent defects in material and workmanship disclosed under normal use and service, and should any part thereof be found within one year from date of shipment to be so defective at the time furnished, we will furnish a replacement or repair said part, not including labor. . . . This guarantee is issued expressly in lieu of all other warranties expressed or implied by law or trade usage, and of all other obligations or liabilities on our part, and we neither assume nor authorize any person to assume for us any other liability in connection with the sale of our apparatus.” (Emphasis supplied.) Although it is undisputed that Dalton did not manufacture the Temp-Plates, but merely purchased them from Mueller and resold them to Chem Tech at a profit, Dalton argues that the limitation of warranty must be construed to apply to goods it distributed or sold, as well as those it manufactured, because the only goods which were the subject of the contract between it and Chem Tech were goods it did not manufacture. We do not agree.

We concur with the trial court’s reasoning that Dalton’s argument would require us not only to construe the language of the contract, but to revise it. “ ‘If [a] writing contains a warranty of some kind or to some extent, parol evidence will not be admitted to extend, enlarge, or modify that which the writing specifies. [Cits.]’ [Cit.] [Emphasis omitted.] Courts are not at liberty to revise contracts while professing to construe them. [Cits.]” Stuckey v. Kahn, 140 Ga. App. 602, 606 (1) (231 SE2d 565) (1976). We find the language in the contract to be unambiguous in referring only to goods manufactured by Dalton. “ ‘(N)o construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation.’ [Cit.]” Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 421 (364 SE2d 65) (1987). Further, the contract was drawn by Dalton, and could easily have been modified by it to reflect what it now asserts was its true intention. Thus, even assuming an ambiguity, the preferred construction would be that which goes most strongly against Dalton as the drafter. OCGA § 13-2-2 (5). See also Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983). Accordingly, the trial court did not err by denying Dalton’s motion for summary judgment against Chem Tech.

4. Dalton denominates its appeal in Case No. 77366 a cross-appeal from the trial court’s grant of summary judgment to Mueller. However, Mueller is not an appellant, and consequently even assuming Dalton had standing to appeal from a grant of summary judgment to its co-defendant, see generally Savannah Inn-Towner &c. v. Mc-Cauley, 149 Ga. App. 209 (2) (253 SE2d 796) (1979), any such appeal should have been filed within the time provided by law for direct appeals. As this appeal was filed within 30 days of entry of the order granting summary judgment to Mueller, see OCGA § 5-6-38 (a), we grant Mueller’s motion to dismiss Dalton’s appeal in this case.

Decided November 18, 1988 —

Rehearings denied December 2, 1988

John T. Avrett, for Chem Tech.

Kinney, Kemp, Pickell, Sponcler & Joiner, L. Hugh Kemp, Bouis, Kyle & Burch, J. Greg Tharp, for Paul Mueller Co.

McCamy, Phillips, Tuggle, Rollins & Fordham, Joseph T. Tuggle, Jr., Chambers, Mabry, McClelland, & Brooks, Genevieve L. Frazier, for Dalton Sheet Metal.

Judgment affirmed in Case Nos. 77364 and 77365. Appeal dismissed in Case No. 77366.

Deen, P. J., and Carley, J., concur.


text:
    77121.
    THE STATE v. LOVIG.
    (376 SE2d 229)
   Pope, Judge.

The stipulated record shows that on November 12, 1987, a cable television repairman was dispatched to investigate a complaint by defendant Teresa Gail Lovig’s neighbor. The repairman suspected the cable signal had been diverted into an adjacent apartment rented by defendant. The resident manager of the apartment building opened the defendant’s apartment with a pass key and permitted the repairman to enter. Once inside, the repairman discovered the television cable was spliced and the signal was diverted to defendant’s television. He also discovered and removed a damaged convertor box belonging to the cable company from atop defendant’s television. The police were called and were inside defendant’s apartment when she returned home. Defendant was charged with damaging utility company property in violation of OCGA § 16-7-25. The court granted defendant’s motion to suppress evidence obtained by what she alleged was an illegal search. We reverse.

The court’s order was based on a finding that the cable television company employee did not have a right to enter defendant’s apartment. However, that is not the deciding issue for ruling upon defendant’s motion to suppress. Even if the employee’s entry into defendant’s apartment was unauthorized, the search and seizure was committed by a private individual. “ ‘(T)he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.’ ” Williams v. State, 257 Ga. 788, 789 (364 SE2d 569) (1988), quoting United States v. Jacobsen, 466 U. S. 109 (104 SC 1652, 80 LE2d 85) (1984). “ ‘The test... is whether (the private individual), in light of all the circumstances of the case, must be regarded as having acted as an “instrument” or agent of the (government) when (he) produced (the evidence).’ Coolidge v. New Hampshire, 403 U. S. 443, 487 (91 SC 2022, 29 LE2d 564) [(1971)].” Marks v. State, 174 Ga. App. 711, 714 (331 SE2d 900) (1985).

Decided December 2, 1988.

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

Roger A. Hunsicker, for appellee.

Here, the record shows the convertor box was seized and the diversion of the television signal was discovered prior to the arrival of the police. The record reflects that the television company employee acted on his own. No evidence suggests the employee acted as an agent of or under the direction of a law enforcement agency. In such a case the exclusionary sanction does not apply. See Moye v. Hopper, 234 Ga. 230 (2) (214 SE2d 920) (1975); Marks v. State, supra; Lester v. State, 145 Ga. App. 847 (2) (244 SE2d 880) (1978); Gasaway v. State, 137 Ga. App. 653 (2) (224 SE2d 772) (1976).

This court has held that a landlord has no authority to consent to a search of the tenant’s quarters and that evidence seized during such a search, without a valid warrant, should be excluded. State v. Oliver, 183 Ga. App. 92 (357 SE2d 889) (1987). In Oliver, the landlord, while on the premises rented to defendant, discovered contraband and called police who conducted a search and seized the contraband. Oliver involved the seizure of defendant’s property by the police without a warrant. In the case at hand, although the landlord’s manager opened defendant’s apartment to let the cable company employee and the police enter, it was the cable company’s employee who recovered the company’s own property and discovered the company’s cable had been spliced and the company’s signal diverted. Thus, the facts of this case are distinguishable from those in Oliver. This case does not involve an illegal search and seizure of defendant’s property by the police but a recovery of property belonging to another by a private individual, who then offered the evidence to the police. The trial court erred in granting defendant’s motion to suppress.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


text:
    77183.
    ADAMS v. SERVPRO OF MACON, INC.
    (375 SE2d 894)
   Benham, Judge.

The dispositive issue in this case is whether the circumstantial evidence offered by appellant in opposition to appellee’s motion for summary judgment can withstand the effect of appellee’s agent’s positive and uncontradicted testimony. Holding that it cannot, we affirm.

Appellant hired appellee to clean the rugs in his offices. An agent of appellee’s was given a key so that he could clean the rugs during non-duty hours. The building had five exterior doors, each of which was equipped with a deadbolt; every deadbolt could be opened with the same key. The agent testified that he cleaned the rugs on Saturday evening; that when he left, he locked behind him the only door he had opened; and that he tested the door by leaning his shoulder against it. The building was damaged later that night by a fire which fire department officials declared to be the product of arson. A front door and a back door were found to be unlocked. The fire department concluded that there was no evidence to connect appellee’s agent with the fire. Appellant’s theory of the origin of the fire is that appellee’s agent negligently failed to lock the doors and that arsonists entered later because of that negligence and started a fire. Based on that theory, appellant sued appellee. This appeal is from the grant of summary judgment to appellee.

In support of its motion for summary judgment, appellee offered the deposition testimony of its agent that he only unlocked one door and that he locked it when he left. In opposition to the motion, appellant relied on circumstantial evidence that it was appellee’s agent who left the door unlocked: appellee’s agent was the last person with a key known to be in the building, there were discrepancies in appellee’s agent’s accounts to various persons of his activities while in the building, and the doors were unlocked when the fire department arrived.

“ ‘In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.’ [Cits.] ‘When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.’ ” Helms v. Young, 130 Ga. App. 344, 348 (203 SE2d 253) (1973).

Although there is an exception to that rule when the circumstantial evidence is inconsistent with the direct evidence (Fletcher Emerson &c. Co. v. Davis, 134 Ga. App. 699 (4) (215 SE2d 725) (1975)), that is not the situation in this case. The circumstantial evidence on which appellant relies is consistent with the agent’s testimony that he locked the door. Since none of the discrepancies in the agent’s statements concerned material issues, the agent’s testimony cannot be considered to be impeached (Collier v. Sinkoe, 135 Ga. App. 732 (6) (218 SE2d 910) (1975)), and remains uncontradicted. Under the authority cited above, the trial court did not err in granting appellee’s motion for summary judgment.

Decided December 2, 1988.

John E. James & Associates, Kathryn M. Weigand, for appellant.

Martin, Snow, Grant & Napier, Cubbedge Snow III, Phillip A. Sibley, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    77288, 77573.
    DAVIS v. THE STATE (two cases).
    (376 SE2d 230)
   McMurray, Presiding Judge.

Defendant Davis appeals his conviction of the offense of child molestation. Held:

1. Case No. 77573 arises from a notice of appeal timely filed following the verdict and judgment against defendant. Subsequently, defendant chose to dismiss this appeal in favor of his motion for new trial. Case No. 77288 is an appeal from the verdict and judgment against defendant and from the denial of defendant’s motion for new trial. Although the notice of appeal in Case No. 77288 was prematurely filed we deny the State’s motion to dismiss the appeal.

2. Defendant contends the trial court erred in allowing the prosecuting attorney to qualify the jurors. See generally OCGA § 15-12-164. In Hicks v. State, 232 Ga. 393, 399 (207 SE2d 30), the Supreme Court of Georgia held that although the trial court has ultimate responsibility for seeing that the statutory questions are put to the jurors, the trial court may delegate this responsibility to the prosecuting attorney. While defendant argues that Hicks should be overruled (which is not within the prerogative of the Court of Appeals of Georgia), it appears that Hicks continues to be the law and has recently been cited by the Supreme Court of Georgia for the proposition at issue. See Roberts v. State, 252 Ga. 227, 233 (fn. 3) (314 SE2d 83).

3. Defendant contends the trial court erred in “failing to enforce Defendant’s right to discovery, confrontation and cross-examination.” The crux of defendant’s argument is that the State withheld exculpatory evidence which should have been produced in response to a Brady motion. See Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215). The information which defendant alleges was wrongfully withheld involves the investigating police detective being told by the victim’s mother that the victim had stated “it didn’t happen.”

The evidence which defendant sought was elicited during the trial. As the evidence was made available for the jury’s consideration and defendant has not shown how the lack of this information prior to trial so impaired his defense that he was denied a fair trial, we find no reversible error. Webster v. State, 174 Ga. App. 427, 428 (330 SE2d 168); Hicks v. State, 232 Ga. 393, 396, supra.

Additionally, we can find no violation of defendant’s rights to confrontation or cross-examination in the failure of the State to call as a witness the police detective to whom the mother’s statement was made. Nor do we find accurate defendant’s contention that the State failed to comply with an order of the trial court to produce the police detective for cross-examination regarding the information at issue. While obtaining the police detective’s testimony was discussed by the trial court no order was made requiring the detective’s presence.

4. The trial court properly sustained the State’s relevancy objection to evidence which defendant sought to elicit, during direct examination of his witness, to prove that defendant does not have tendencies to molest little girls. The evidence which defendant sought to elicit, whether a specific little girl other than the victim was afraid of defendant, was not the proper method of proving defendant’s good character. Good character must be established by evidence of defendant’s general reputation. Daniels v. State, 149 Ga. App. 463 (2) (254 SE2d 488); Simpkins v. State, 149 Ga. App. 763 (1) (256 SE2d 63); Taylor v. State, 176 Ga. App. 567, 569 (3), 570 (336 SE2d 832). Defendant’s third and fourth enumerations are without merit.

5. In support of his motion for new trial defendant presented the testimony of the victim who admitted to having recanted her testimony after trial. However, the victim also testified at the hearing on the motion that defendant had molested her and that she had recanted because of the undue influence of certain adults. “ ‘(A) post-trial declaration by a state witness that his former testimony was false is not a cause for a new trial. (Cits.)’ Porter v. State, 167 Ga. App. 697, 699 (2) (307 SE2d 515).” Carruth v. State, 182 Ga. App. 786 (1) (357 SE2d 122). The trial court did not err in denying defendant’s motion for new trial.

6. Defendant’s sixth and seventh enumerations of error purport to address rulings made by the trial court. However, defendant has failed to comply with Rule 15 (c) (3) of the Rules of the Court of Appeals of the State of Georgia by referring this court to where these rulings are located in the record or transcript. While we have attempted to find these rulings and failed, we hold that these enumerations being unsupported by the record may not be considered. Dow- dell v. State, 180 Ga. App. 250, 251 (3) (349 SE2d 10).

Decided December 2, 1988.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

Judgment affirmed in Case No. 77288. Appeal dismissed in Case No. 77573.

Pope and Benham, JJ., concur.


text:
    77310.
    WRIGHT v. THE STATE.
    (375 SE2d 895)
   Beasley, Judge.

Wright, Beneby, Boston, Hale, and Scott were indicted in one count for trafficking in cocaine. The indictment also charged Wright, and his girlfriend Rand, with one count of possession with intent to distribute. Wright was convicted, by the court, only of possession of cocaine, OCGA § 16-13-30 (a). He appeals on the grounds that his motion to suppress was improperly denied and that there was insufficient evidence upon which to convict him.

Viewing the evidence favorable to the verdict, it shows that on June 3, 1987, GBI undercover agents Slay and Simmons had negotiated with Scott and Hale to purchase a kilo of cocaine. The agents started the negotiations at Hale’s apartment. Hale had to leave for his job with MARTA, but he directed the agents to a fast food restaurant near the intersection of Memorial and Glenwood Drives, where they met Scott. Scott told the agents to follow him to a nearby K-Mart shopping center. There, a black Blazer driven by Boston pulled up next to them. He left after telling them to wait 15-20 minutes.

Agent Mays was parked away from the other agents, but he was in radio contact. He followed the Blazer when it left the lot and proceeded to 1767 Austin Drive, defendant Wright’s residence, and parked approximately a quarter mile away. Although he could not see the house from where he was, he could observe the driveway entrance. The Blazer pulled into the driveway, where it remained for 15-20 minutes. While there, a Blue Mustang convertible with the top down, driven by Wright, pulled into the driveway. Within a few minutes of the Mustang’s arrival, the Blazer left and returned to the K-Mart, followed by Mays.

Agent Slay entered the Blazer where he tested the kilo of cocaine handed to him by Beneby. Boston was still driving. The purchase price was $37,000. Boston and Beneby were arrested at approximately 4:50 p.m.

At 5:35 p.m., while the officers and these two men were still at the shopping center, the blue Mustang drove into the lot. Defendant Wright was driving and pulled into a parking space. Officer Mays told the other officers that the driver was the same man who had driven the car by him on Austin Drive. The officers approached the car and questioned defendant after advising him of the Miranda rights. The officers told him that Boston and Beneby had just been arrested for drugs. Defendant stated that he and Beneby were classmates in Florida and that he lived at the Austin Drive address. He also admitted that he knew Boston and that Boston had been to the house about fifteen to thirty minutes earlier. He denied any knowledge of the drug activity.

At that point, agent Slay asked if the officers could search the residence. Although defendant would not sign a written consent to search form, the officers testified that he gave a verbal consent to search. The officers and defendant went to the home and it was searched. Rice, another male, was asleep on the sofa in the living room.

A safe was found in defendant’s bedroom. Defendant said it was his. The officers were unable to open it and asked defendant to open it, which he did by combination. Inside were 27.5 ounces of cocaine and $4,000 in cash. Another $6,000 in cash and a woman’s purse were found elsewhere in the room. While the search was being conducted, defendant’s girlfriend, Rand, arrived.

Defendant testified that he did not consent to the search, that the safe was not locked, that Beneby and Rice also had access to the safe, and that he did not know the contraband and money were in it. He denied being the driver of the Mustang when it was first seen on Austin Drive and contended that he was taking a shower at the time. When he got out of the shower, there was no lotion so he dressed and was on his way to K-Mart for some when he was accosted by the police.

The trial court concluded that Wright was under arrest from the time he was interviewed at the K-Mart and that the officers had probable cause to arrest him without a warrant. It further concluded that defendant consented to the search and that the consent was voluntary.

1. Since the trial court concluded that defendant was under arrest at the parking lot, as contended by defendant, we premise our consideration on this conclusion.

Defendant raised both his Fourth Amendment rights under the federal Constitution and his “constitutional rights ... as secured to him by the Constitution of Georgia.” This was apparently a reference to Ga. Const. 1983, Art. I, Sec. I, Par. XIII, although that is nowhere specified in the record below.

In considering whether the probable cause standard has been met, the inquiry in a no-warrant situation is currently the same under either provision. Battle v. State, 254 Ga. 666, 670 (3) (333 SE2d 599) (1985); Gibbons v. State, 253 Ga. 283 (319 SE2d 861) (1984); Durden v. State, 250 Ga. 325, 326 (297 SE2d 237) (1982).

“Under this standard an arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. [Cit.]” Durden, supra at 326; Napier v. State, 184 Ga. App. 770, 771 (1) (362 SE2d 501) (1987).

When defendant was arrested, the agents knew that a major drug transaction was in the process of being finalized; that the vehicle which they believed was to deliver the cocaine had driven into the appointed location, i.e., the K-Mart lot; that they had been told to wait fifteen minutes; that the vehicle then proceeded to the Austin Drive location and waited for a period of time; that within minutes of the arrival of defendant in the Mustang, the Blazer left and arrived at the K-Mart lot with a kilo of cocaine, and that, after the transaction was completed, defendant came to the transaction’s location. At the time the agents approached him in his car, they had at least reasonable suspicion to stop defendant and make inquiry. United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605) (1985); Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Upon inquiring of defendant, they determined that he knew both of the men just arrested and that the Austin Drive house was his residence. At this point, if not before, probable cause existed to believe that he was involved in committing the crime.

Defendant argues that he was not in the Mustang when it was first seen so that the only thing shown before the search of his home was his presence at the scene of the transaction, which he argues does not justify an arrest. The trial court chose to believe the agent with regard to this disputed fact; on appeal the trial court’s ruling on disputed facts must be accepted unless clearly erroneous. Muff v. State, 254 Ga. 45, 48 (326 SE2d 454) (1985); Lockwood v. State, 184 Ga. App. 262, 263 (1) (361 SE2d 195) (1987). Thus the officers had more than mere presence upon which to base their assessment.

Having determined that there was probable cause, justifying the arrest without a warrant, OCGA § 17-4-20 and Durden, supra, the question of the validity of the consent to search given by defendant remains.

“Where the state seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ [Cit.] A valid consent eliminates the need for either probable cause or a search warrant. [Cit.] The voluntariness of a consent to search is determined by looking to the Totality of the circumstances.’ . . . .” Dean v. State, 250 Ga. 77, 79 (2 a) (295 SE2d 306) (1982); Borda v. State, 187 Ga. App. 49, 50 (369 SE2d 327) (1988).

Decided December 2, 1988.

R. Keegan Federal, Jr., for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.

Defendant’s argument is that the consent is involuntary as a matter of law due to the illegality of the arrest. Since we have determined that the arrest was legal, this argument need not be further considered.

The mere fact that an accused is under legal arrest when the consent is given does not establish the consent was made involuntarily or by coercion. Dean, supra at 80; Howard v. State, 185 Ga. App. 465, 466 (1) (364 SE2d 600) (1988).

The court’s judgment on questions of credibility on a motion to suppress must be accepted unless clearly erroneous. Muff v. State, supra at 48; Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987). Its findings that the consent was given and that it was given voluntarily cannot be said to be erroneous as a matter of law.

2. Defendant also contends that the evidence was insufficient to convict him of possession of the cocaine in the safe, as a matter of law.

Construing the evidence in favor of the verdict, the cocaine was found in a locked safe in defendant’s bedroom. The only evidence supporting defendant’s claim of “equal access” was his statement that Rice and Beneby had the combination to the safe also. Even if this had been accepted by the factfinder, that alone would not demand a finding that defendant was not guilty. The totality of the circumstances supports the factfinder’s conclusion that defendant had at least joint possession of the cocaine found in his safe in his bedroom. Pittman v. State, 183 Ga. App. 12, 13 (1) (357 SE2d 855) (1987); Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986).

The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Carley, Judge.

text:
    77335.
    McKEEVER et al. v. STATE OF GEORGIA.
    (375 SE2d 899)
   Carley, Judge.

The State initiated this action to condemn a truck which it had seized in connection with appellant Franklin McKeever’s arrest for the sale of drugs. Although the certificate of title was in the name of appellant Johnny McKeever, it was the State’s contention that appellant Franklin McKeever was the actual owner of the vehicle. The issue of the ownership of the seized truck was tried before a, jury. In its verdict, the jury found appellant Franklin McKeever to be the owner of the vehicle. After the return of the jury’s verdict but before the entry of any judgment thereon, appellants filed a “Motion For Judgment Notwithstanding the Verdict and Motion For New Trial.” Following a hearing, the trial court denied appellants’ motions. Within thirty days, appellants filed this appeal from the denial of their post-verdict, but pre-judgment motions for new trial or judgment n.o.v.

The record of this case contains no final judgment, and the clerk of the trial court has certified that no judgment has ever been entered on the jury’s verdict by the trial court. “ ‘The verdict of a jury, whether resulting from direction or from deliberation, is not an “appealable judgment.” [Cit.]. . . . The verdict itself is not a judgment or a ruling, and hence does not fall within the provision of [OCGA § 5-6-34 (a)] that “Appeals may be taken to the Supreme Court and [the] Court of Appeals from [. . .] judgments and rulings of the superior courts. . . .” ’ [Cits.] . . . . ‘ “(B)efore an appeal may be made, the judgment appealed from must be in writing, and not verbal. [Cits.]”. . . . [Cit.]’ ” (Emphasis in original.) Littlejohn v. State, 185 Ga. App. 31 (363 SE2d 327) (1987). See also Teppenpaw v. Blalock, 226 Ga. 619 (176 SE2d 711) (1970); Amie v. Davis, 130 Ga. App. 177 (202 SE2d 581) (1973). If no final judgment has ever been entered, it follows that the case remains pending in the trial court and that this court would have no jurisdiction to entertain this appeal. See Littlejohn v. State, supra.

The denial of appellants’ motions for new trial or judgment n.o.v. does not constitute a basis for the exercise of appellate jurisdiction over this case. “A motion for judgment notwithstanding the verdict or for a new trial filed prior to entry of the judgment on the verdict is void.” Wall v. C & S Bank of Houston County, 153 Ga. App. 29, 30 (2) (264 SE2d 523) (1980). The present appeal is to be distinguished from a case in which, subsequent to the filing of a void motion for new trial or judgment n.o.v., a judgment was actually entered on the jury’s verdict by the trial court. Where there has been the subsequent entry of a judgment, the disposition of the void motion removes the last impediment to finality and the case will no longer be pending in the trial court. Thus, the effect of the subsequent entry of a judgment on the jury’s verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. See Dodson v. Dodson, 231 Ga. 789 (204 SE2d 109) (1974); Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972); Joiner v. Perkerson, 160 Ga. App. 343 (287 SE2d 327) (1981). There is a fundamental difference between such a case and that in which, not only is the motion for new trial or judgment n.o.v. otherwise void, but also no judgment has ever been entered. While prematurity goes only to the relative timeliness of the taking of an appeal in a case wherein a final judgment was actually entered, the entry vel non of a final judgment is determinative of the very existence of appellate jurisdiction. “ ‘There must be judgment and entry. . . .’ [Cits.]” Gillen v. Bostick, 234 Ga. 308, 311 (1) (215 SE2d 676) (1975). In the present case, appellants’ void motions for new trial or judgment n.o.v. were never rendered merely “premature” by virtue of the subsequent entry of judgment on the jury’s verdict. Notwithstanding the denial of appellants’ void motions, the case remains pending in the trial court due to the absence of a final judgment. Accordingly, there is no final judgment in this case to be affirmed or reversed. In the absence of any final judgment, appellants’ appeal is “taken from the verdict . . . which was not an appealable judgment, [and] the mere mention in the notice of appeal of the [‘Order of Denial of Defendants’ Motion for Judgment Notwithstanding the Verdict and for New Trial’] ‘does not constitute an appeal from a final judgment so as to satisfy the requirements of the Appellate Practice Act.’ [Cits.]” Davis v. Davis, 224 Ga. 740, 741 (164 SE2d 816) (1968).

In Wall v. C & S Bank of Houston County, supra, this court did address the merits of a direct appeal in a case in which a void motion for judgment n.o.v. or for new trial had been denied, but no valid final judgment had ever been entered on the jury’s verdict. However, no case cited in Wall supports the proposition that a Georgia appellate court would have jurisdiction to hear such a direct appeal. The cases cited in Wall merely hold that an appellate court has jurisdiction to hear a direct appeal in a case in which the final judgment was actually entered subsequent to the otherwise prematurely filed notice of appeal or motion for new trial. It is well-established that the appellate courts of this State have no jurisdiction to entertain a direct appeal if a final written judgment has not been entered by the trial court. See OCGA § 5-6-34. To the extent that Wall suggests that an appellate court would have jurisdiction to address the merits of a case in which no final judgment has ever been entered on the verdict, it is expressly overruled and is not authority for the existence of appellate jurisdiction over the present appeal.

The denial of appellants’ void motions for new trial or judgment n.o.v. left the case pending in the trial court and the jurisdictional requirement for a direct appeal has not been met. “After the entry of a final order in this case, appellant[s], if dissatisfied, may pursue whatever post-judgment remedies are available to [them]. In any event, the notice of appeal that appellants] previously filed is not sufficient to confer jurisdiction upon this court and, if such jurisdiction is ever to be conferred, it must be by virtue of a notice of appeal timely filed by appellants] after the entry of a final judgment in this case.” (Emphasis in original.) Littlejohn v. State, supra at 32.

Decided December 2, 1988.

Branan & Brogdon, Rowe Brogdon, for appellants.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Appeal dismissed.

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


author: Banke, Presiding Judge.

text:
    77415.
    PASCHAL v. FERGUSON TRANSPORT, INC.
    (375 SE2d 901)
   Banke, Presiding Judge.

The appellant fell and was injured while attempting to exit a bus which was owned and operated by appellee. The bus had broken down shortly prior to the accident, and the driver and passengers were awaiting the arrival of a replacement bus. While the appellant was asleep inside, an unidentified individual, who was not a passenger, either approached or entered the vehicle and falsely exclaimed that it was on fire. Thus startled from her sleep, the appellant attempted to exit the vehicle hurriedly and fell while descending the steps to the ground. She seeks to hold the appellee liable for her resulting injuries, alleging that it violated its statutory duty to “exercise extraordinary diligence to protect the lives and persons of [its] passengers. . . .” OCGA § 46-9-132. The trial court granted summary judgment to the appellee, and this appeal followed.

The bus had been chartered to take a group of passengers from Warner Robins, Georgia, to a town in South Carolina to play bingo. At around midnight, shortly after setting out on the return trip to Georgia, a suspension spring on the vehicle broke, prompting the driver to stop at a nearby convenience store and telephone for help. Pending the arrival of a replacement vehicle, some of the passengers left the bus and conversed outside, while others, including the appellant, remained inside the vehicle. During this interlude, an automobile pulled up to the gas pumps in front of the convenience store, and two young men got out. After socializing for a brief period with some of the passengers who were waiting outside the bus, one of these men, without cause or warning, suddenly approached the vehicle and yelled, “Fire!” The driver was standing approximately 25 to 35 feet from the entrance to the bus when this occurred. Held:

Decided December 2, 1988.

Mullis, Marshall, Lindley & Powell, Julius A. Powell, Jr., for appellant.

Jones, Cork & Miller, Charles L. Ruffin, Bradley J. Survant, for appellee.

“ ‘While it is unquestionably the duty of a carrier to exercise extraordinary care for the protection of passengers, the rule does not [require the carrier to take measures to protect its passengers from the intentional misconduct of third persons] until something occurs ... to put [the carrier] on notice that . . . such conduct . . . might be reasonably anticipated. . . .’ ” Pinnell v. Yellow Cab Co., 77 Ga. App. 73, 75 (47 SE2d 774) (1948), citing Powell v. Beasley, 57 Ga. App. 231, 232 (194 SE 926) (1938).

It is apparent without dispute from the evidence of record in this case that nothing whatever occurred prior to the unfortunate incident which resulted in the appellant’s injuries which might reasonably have placed the appellee’s driver on notice that his passengers were threatened either with criminal assault or with the type of malevolent mischief which in fact occurred. To the contrary, it was shown without dispute that the incident occurred with such suddenness and lack of warning as to surprise even those standing in close proximity to the wrongdoer. We are constrained to conclude that the misconduct in question could not reasonably have been anticipated, with the result that the appellee cannot be held liable under the circumstances for failing to take precautions to protect the appellant from it. Compare Hillman v. Ga. R. &c. Co., 126 Ga. 814 (1) (56 SE 68) (1906); Yellow Cab Co. of Atlanta v. Carmichael, 33 Ga. App. 364, 368 (126 SE 269) (1924). We accordingly hold that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    77489.
    ANDREWS v. TRUSTEES OF THE GENERAL EMPLOYEES’ PENSION FUND OF ATLANTA.
    (375 SE2d 902)
   Banke, Presiding Judge.

Alleging that he had been disabled by a series of work-related injuries while employed as an electrician by the City of Atlanta, the appellant applied to the Board of Trustees of the General Employees’ Pension Fund of the City of Atlanta (“Board”) to be awarded a disability pension. A hearing was held on the petition on March 10, 1987. In a certified letter dated March 13, 1987, the board notified the appellant that his application had been denied on March 10, 1987, and that its decision was subject to review by writ of certiorari to the Superior Court of Fulton County “within thirty days of the date of the board’s decision.”

The appellant appealed to the superior court by application for writ of certiorari on April 13, 1987, which was within 30 days from the date of the board’s letter but not within 30 days of the date the board had actually reached its decision. The superior court dismissed the application, and we granted the appellant’s subsequent application to this court for a discretionary appeal. Held:

1. This case is controlled by our decision in Fulton County v. Williams, 150 Ga. App. 496 (258 SE2d 155) (1979), wherein the pension board had notified the claimant of an adverse ruling on his pension claim in a letter which post-dated the hearing on the claim by one week. We held in that case that the 30-day period in which the petition for certiorari was required to be filed (see OCGA § 5-4-6) began to run on the date of the notification letter rather than the date of the hearing at which the board had rendered its decision. We cannot agree with the appellee that the holding in Fulton County v. Williams is inapplicable to the facts of the present case because the notification letter at issue there had failed to specify the date the board had reached its decision, whereas the letter in the prsent case did specify the date the board had reached its decision. In both cases, it was the letter which provided the petitioner with his initial notification that his claim had been rejected by the board. To hold that the time for appeal begins to run on the date the decision is made rather than the date the petitioner is notified of it would result in the denial of the petitioner’s right of appeal in a case where the notification letter was not sent within 30 days from the date of the decision. Accordingly, we hold that the trial court erred in dismissing the appellant’s petition for certiorari as untimely in the present case.

2. While both parties seek to argue the merits of the pension claim, such argument is premature inasmuch as no decision on the merits has yet been rendered by the superior court.

Judgment reversed.

Birdsong, C. J., and Beasley, J., concur.

Decided December 2, 1988.

Hazleton & Sweet, John F. Sweet, for appellant.

David D. Blum, Marva J. Brooks, for appellee.


text:
    77551.
    JOLLEY v. THE STATE.
    (375 SE2d 903)
   Banke, Presiding Judge.

The appellant was indicted for criminal attempt to commit theft, obstruction of an officer (two counts), simple battery (two counts), and public drunkenness. A jury acquitted him on the public drunkenness count and one of the battery counts but found him guilty on the other battery count and guilty but mentally ill on the criminal attempt and obstruction counts. The evidence introduced at trial showed that the appellant had attempted to drive an automobile off the lot of an automobile dealership without authority and had thereafter forcibly resisted attempts by law-enforcement officers to take him into custody. Held:

1. During the trial, one of the arresting officers testified on cross-examination that upon being arrested the appellant had stated that “he hadn’t done nothin’, he wasn’t goin’.” Subsequently, the appellant moved for a mistrial on the ground that the content of this exculpatory statement had not been disclosed to him prior to trial in response to a Brady motion which he had filed. The denial of this motion is enumerated as error on appeal.

“The ‘(d)efendant . . . has the burden of showing that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady Rule.’ Potts v. State, 241 Ga. 67, 74 (243 SE2d 510) (1978). Here, the exculpatory information was not withheld from the jury. The complaint is that it was not furnished in response to a discovery request. How has the failure to furnish the defendant the evidence in advance of trial impaired his defense? It has not been shown. If it is defendant’s contention that additional time for investigation would have enhanced his defense, the proper motion would have been for an adequate recess, not mistrial.” Wallin v. State, 248 Ga. 29, 33-4 (279 SE2d 687) (1981). It follows that this enumeration of error is without merit.

2. The appellant contends that his ability to present a defense on the obstruction counts was prejudiced by the trial court’s denial of his motion for directed verdict on the public drunkenness count. However, inasmuch as the jury determined that the appellant was not guilty of public drunkenness, we must conclude that even if the appellant was entitled to a directed verdict on this count, the failure to grant one was harmless.

Decided December 2, 1988.

Richard Thurman, for appellant.

Roger G. Queen, District Attorney, for appellee.

3. The appellant contends that the trial court erred in overruling his motion for mistrial made in response to the following closing argument by the state’s attorney: “They used only the forces (sic) reasonably necessary. Who could say that if they had pulled their service revolvers and shot the defendant after he knocked them down on the parking lot in order to prevent him from walking away, who is to say that that would be unreasonable?”

Although the appellant did interpose an objection to this argument, his assertion that he moved for a mistrial on the basis of it is not supported by the transcript. In response to the appellant’s objection, the trial court instructed the jury as follows: “Well, that’s not an issue in this case, ladies and gentlemen of the jury, it’s just given as an illustration. It may or may not be correct rule of the law, but it’s not in this case. You apply the law that I give you in charge to this case, and something one of the attorneys may say in their closing statements, remember, is not evidence in the case.” The appellant did not challenge the adequacy of these curative instructions, nor did he request any additional curative instructions. Consequently, this enumeration of error presents nothing for review. See Whitaker v. State, 246 Ga. 163 (269 SE2d 436) (1980).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.