text:
    76143.
    GATORS OF TIFTON, INC. v. STOKES et al.
    (368 SE2d 834)
   Birdsong, Chief Judge.

Raymond Harrell and his wife are the sole shareholders of the appellant corporation, Gators of Tifton, which has operated as a nightclub since 1983 and at all times pertinent to this action. A complaint alleging a malicious conspiracy to harm this business was filed against the appellees on April 25, 1986; at this time appellee O. L. Stokes was the pastor of the First Assembly of God Church of Tifton, Georgia; appellee Edd Walker was the Sheriff of Tift County, and appellee Hugh E. Smith was Police Chief of Tifton. Extensive discovery was conducted by all parties, including 22 depositions and numerous interrogatories, objections and answers thereto. In April 1987, the appellees filed motion for summary judgment supported by affidavits. This appeal is from the grant of summary judgment to all three appellees.

Appellant’s suit was based upon allegations that the three appellees engaged in an unlawful conspiracy on a continuing basis during the years 1984, 1985 and 1986 to damage and destroy the business known as Gators nightclub. However, most of the acts urged as being in furtherance of this conspiracy relate to one incident, when an all-male strip show was presented for a “Ladies’ Delight” night at Gators on January 15, 1986. Appellant asserted that prior to this occasion, Gators was the subject of long-term police harassment consisting of posting police cars in the area where the nightclub was located and randomly stopping customers going in and out. The assertions of prior wrongdoing on the part of Reverend Stokes included his presence at the meeting of the Tifton City Commission in 1983 at which Harrell’s application for a beer or business license was refused. It was also contended that Reverend Stokes was the “ring leader” of the effort to destroy appellant’s business as a “long time opponent of alcohol in Tifton and of sin in general; serving as chairman for 10-20 years of the Social Concerns Committee of the Tiftarea Ministerial Association” and holding a candidates’ day at his church for the last 15 or 18 years in order “to elect good candidates and defeat bad ones.” Appellant further alleged that in 1986 Reverend Stokes threatened to run him out of business and called Chief Smith to enlist his aid in the harassment tactics, which resulted in a “raid” of Gators on the night of the “Ladies Delight” strip show.

The undisputed facts as shown by the evidence submitted by appellees presented an altogether different scenario, however. It appears that prior to the January 15, 1986 show, neither the police officers nor sheriff’s department had any significant contact with appellant or its customers, and there was no evidence suggesting any harassment. Prior to the all-male strip show, there had been a number of radio advertisements, a large crowd was expected to turn out and rumors of possible disturbances by “jealous husbands and boyfriends” had circulated in the community. This type of entertainment was new to Tifton and Chief Smith did not know what to expect from the crowd, so he directed six police officers to be stationed in and around the nightclub that night. Sheriff Walker became involved when he asked Chief Smith if he needed any extra men and it was agreed that both departments would have officers present in the vicinity at the time of the show in case trouble broke out. Such joint operations were routinely undertaken for high school football games. Approximately ten sheriff’s deputies were present for the show, but left before it concluded; the law enforcement personnel were cautioned not to harass Gators’ customers, but simply to keep the peace and be present if any trouble broke out. No arrests were made and the show went on as scheduled, playing to a full house. Chief Smith was personally present near the entrance and did not observe any law enforcement harassment of any kind against any customers at the nightclub.

Reverend Stokes became involved when another minister called a meeting of local pastors who were concerned about the proposed all-male strip show. A committee was organized, of which Reverend Stokes was a member, to meet with Harrell to appeal that the show be cancelled. Reverend Stokes told Harrell that he could become a hero in the eyes of the community if he called off the show, and that otherwise the ministers felt they knew the “moral fibre” of the community well enough to predict that the people would not continue to support that type of activity and Gators would be out of business in twelve months. Another minister present at the meeting had been to see an attorney for legal advice on the matter and reported to the committee that it did not appear much could be done, but that it might be good to have law officers present at the show. The ministers also agreed to offer to reimburse Harrell for any lost expenses incurred from cancelling the show by taking up a collection in their churches, but he refused. When Reverend Stokes called Chief Smith to tell him that nothing much could be done about stopping the show and to request that law enforcement officers be present, he was informed that Chief Smith and Sheriff Walker had already planned to be there with extra men. Reverend Stokes and his wife drove by Gators on the evening of the show after a prayer meeting, but stayed less than five minutes.

All of the appellees swore that they were never aware of, or a part of, any law enforcement or other harassment of appellant’s business or its customers during the entire period of time of its operation. Appellant submitted no affidavits to refute this, and none of the interrogatories or depositions which were taken reveals any evidence that a conspiracy existed or could be inferred between any of the appellees. “[T]he law does not authorize a finding that conspiracy exists merely because of some speculative suspicion and while the question of conspiracy is generally one for a jury, the mere fact that conspiracy has been alleged does not require submission of the question to a jury where there is no evidence of record that the alleged conspirators either positively or tacitly came to a mutual understanding to accomplish an unlawful end or to accomplish a lawful end by an unlawful means. [Cit.]” First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305-306 (2) (363 SE2d 832). Accord Lewis v. Rickenbaker, 174 Ga. App. 371 (3) (330 SE2d 140).

Furthermore, to establish a cause of action for malicious (or tortious) interference with business relations, the plaintiff must demonstrate that the defendants “ ‘(1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.’ [Cit.]” Integrated &c. Systems v. NEC Home Electronics, 174 Ga. App. 197, 200 (3) (329 SE2d 554); Nationwide Adv. &c. v. Thompson Recruitment &c., 183 Ga. App. 678, 679-680 (1) (359 SE2d 737). Clearly the appellant has not demonstrated that any of these criteria were met. The evidence shows only that a group of ministers approached Harrell to request that he cancel a strip show of a type not previously seen before in their community, even offering to obtain funds from their congregations to reimburse him for the expenses he said he had incurred. A minister who was not a named defendant sought legal advice from an attorney to determine if any legal action could be undertaken. Reverend Stokes called Chief Smith and truthfully reported that the ministerial committee had been advised that not much could be done to prevent the show, but it might be a good idea to have law enforcement officers present. Chief Smith told Reverend Stokes that he and Sheriff Walker had already decided to be present at the performance with extra personnel. Both Chief Smith and Sheriff Walker swore that nothing said or done by Reverend Stokes had anything to do with their decisions, actions or the instructions given to their personnel. Not only did the scheduled performance take place without interruption, it played to a packed house of presumably satisfied customers.

This undisputed evidence pierced the material allegations of appellant’s complaint, refuting any contentions of improper or unlawful actions, malice or interference with other persons of a business relationship on the part of the appellees, and there was no showing of any financial harm suffered by appellant. It follows that all the appellees were entitled as a matter of law to summary judgment in their favor, as granted by the trial court. See Stipp v. Bailey, 181 Ga. App. 555 (353 SE2d 52).

Decided April 25, 1988.

Michael E. Garner, for appellant.

E. B. Wilkin, Jr., Seymour S. Owens, Michael A. O’Quinn, for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76507.
    JONQUIL CITY CONTRACTORS, INC. et al. v. AUGUSTINE et al.
    (369 SE2d 55)
    Decided April 25, 1988.

      George W. Carreker, for appellants.

      Albert J. DeCusati, James B. Johnson, Jr., for appellees.
   Banke, Presiding Judge.

The trial court granted a motion by the appellees to strike the appellants’ answer based on the appellants’ failure to appear at a calendar call. The appellants thereafter moved to set aside this order; however, because they also failed to appear at the hearing scheduled on that motion, it was denied. The appellants then filed a second motion to set aside the order striking their answer. That motion was also denied, and this direct appeal followed. Held:

It is clear from the record that no final judgment has ever been entered in this case. Indeed, it appears that at the time this appeal was filed, a hearing was pending on the issue of damages. To appeal an interlocutory order, a certificate of immediate review must be obtained from the trial court and an application for appeal filed with the appropriate appellate court. OCGA § 5-6-34 (b). There having been no compliance with these procedures, it follows that this appeal must be dismissed. See Ga. American Ins. Co. v. Mills, 183 Ga. App. 707 (359 SE2d 697) (1987).

Appeal dismissed.

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


author: Carley, Judge. Deen, Presiding Judge,

text:
    75847.
    CRAWFORD et al. v. SAFECO INSURANCE COMPANY.
    (369 SE2d 296)
   Carley, Judge.

While she was a pedestrian, appellant-plaintiffs wife was struck by an automobile which was being operated by appellee-defendant’s policyholder. Appellant’s wife subsequently died from the injuries that she received. Appellee paid medical benefits to the limits of the PIP medical coverage afforded in the applicable policy. Appellee declined, however, to pay any PIP benefits for loss of “income or earnings.” Appellant filed this action against appellee, seeking to recover PIP benefits for his deceased wife’s loss of “income or earnings.” Appellant alleged in his complaint that, prior to her death, his wife had been unemployed “but was receiving $81.00 monthly for food stamps. . . .” Appellee’s answer included a motion to dismiss for failure to state a claim upon which relief could be granted. The trial court granted appellee’s motion and appellant appeals from this grant of appellee’s motion to dismiss for failure to state a claim.

1. The issue to be decided is whether the trial court correctly ruled that, as a matter of law, the value of food stamps received from the State is not included within the concept of “income or earnings” as provided in OCGA § 33-34-4 (a) (2) (B). “ ‘The appellate courts of this state have held that an injured party is not entitled to recover lost income benefits if he is unemployed or “receiving no income” at the time of injury. [Cits.] While it is not essential to recovery of lost income benefits that the injured party actually be earning income on the date of injury, he must, at a minimum, have accepted an offer of income-generating employment or have a continuous pattern of employment prior to the period of disability. [Cits.]’ [Cit.]” Midland Ins. Co. v. West, 175 Ga. App. 419, 420 (1) (333 SE2d 628) (1985). See also Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574, 575 (1) (277 SE2d 675) (1981); Insurance Co. of North America v. Smith, 183 Ga. App. 266, 267 (1) (358 SE2d 658) (1987). Thus, since appellant’s claim alleged only a loss of the value of food stamps and failed to allege the loss of any income attributable to his deceased wife’s employment, his complaint failed to state a claim for a compensable loss under OCGA § 33-34-4 (a) (2) (B). See Vansant v. Allstate Ins. Co., 142 Ga. App. 684 (236 SE2d 858) (1977). See also Aetna Cas. &c. Co. v. Revere, 160 Ga. App. 316 (287 SE2d 251) (1981).

Appellant’s reliance on Vansant v. Allstate Ins. Co., supra, is misplaced. In Vansant, supra at 687, this court simply held “that ‘income or earnings’ includes delayed earnings such as pensions or annuities. ...” (Emphasis supplied.) As was subsequently recognized in Aetna Cas. &c. Co. v. Revere, supra at 317, the controlling factor in Vansant was the connection between the payments which were lost and the employment of the individual who had previously been receiving them. There is no such connection in the present case. Food stamps do not represent either the past or the future employment income or earnings of their recipient, and it follows that the lost value of food stamps is not compensable under OCGA § 33-34-4 (a) (2) (B). See generally Aetna Cas. &c. Co. v. Revere, supra. Accordingly, the trial court correctly granted appellee’s motion to dismiss appellant’s complaint for failure to state a claim upon which relief can be granted.

2. Appellant’s remaining enumerations of error are rendered moot by our holding in Division 1.

Judgment affirmed.

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

Deen, Presiding Judge,

concurring in part and dissenting in part.

While otherwise concurring fully with the majority opinion as far as it goes, I believe that this appeal is frivolous and that this court should also assess a penalty against the appellant, pursuant to Rule 26 (b) of the Rules of the Court of Appeals. I must respectfully dissent from the majority opinion’s failure to assess such a penalty.

The appellant sought to recover PIP benefits for his deceased wife’s loss of income or earnings, on the basis that his late wife’s receipt of $81 monthly food stamps constituted income. One’s eligibility for food stamps, however, actually is determined in part by one’s level or lack of income. 7 CFR § 273.9. To re-classify food stamps as income would equate positive with negative, presence with absence, plus with minus, or would make something out of nothing. It should go without saying, based on mathematical probability or common sense, that receipt of food stamps is not income.

Decided April 27, 1988.

William T. Hudson, for appellants.

James M. Thomas, for appellee.

If the appellant entertained any belief that this court would reverse the trial court’s finding that food stamps are not income, that belief was unreasonable. Imposition of a penalty of $250 under our Rule 26 (b) is in order.


author: Carley, Judge.

text:
    75839.
    In the Interest of D. B.
    (369 SE2d 498)
   Carley, Judge.

The juvenile court adjudged appellant to be delinquent in that he had committed an act which, had it been committed by an adult, would constitute the crime of aggravated assault with intent to rape. Having thus found that appellant had committed an act which constituted a designated felony, the juvenile court entered a dispositional order which found that appellant required restrictive custody. See OCGA § 15-11-37 (e). Appellant appeals.

1. Appellant enumerates the general grounds. “Based upon the evidence presented to [the juvenile court sitting as] the trier of fact, we conclude that any reasonable trier of fact rationally could have found from that evidence proof of [appellant’s] guilt beyond a reasonable doubt. [Cits.]” In re J. P., 169 Ga. App. 744, 745 (315 SE2d 259) (1984).

2. Prior to the delinquency hearing, appellant requested the juvenile court to transfer the case to the superior court. The juvenile court denied appellant’s request, holding that it could make such a transfer only upon compliance with OCGA § 15-11-39. The State thereafter declined to introduce any evidence as to those factors which are enumerated in OCGA § 15-11-39 (a) (3) and indicated that, for its part, it would not pursue a transfer of the case to the superior court for the prosecution of appellant as an adult. Appellant did not then assume the evidentiary burden as to the factors enumerated in OCGA § 15-11-39 (a) (3). Appellant merely signified that he was “[r]eady to proceed” in the juvenile court. On appeal, appellant enumerates as error the denial of his original request to transfer the case to the superior court.

Appellant urges, in effect, that, notwithstanding the terms of or compliance with any provision of the Juvenile Code, he had an absolute legal right to waive treatment as a juvenile and to elect to be treated as an adult criminal defendant. It is clear, however, that, as a juvenile, appellant can claim only such legal rights as are granted to him by statutory enactments which otherwise comport with applicable constitutional precepts. “ ‘(Treatment as a juvenile is not an inherent right but one granted by the state legislature [and], therefore, the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved.’ [Cit.]” In the Interest of J. J. S., 246 Ga. 617, 618 (1) (272 SE2d 294) (1980). There is no statutory provision which authorizes a juvenile’s unilateral waiver of his legal treatment as such. The only statutory provision regarding a juvenile’s legal treatment as an adult is OCGA § 15-11-39. That statute mandates that, prior to the transfer of a juvenile to another court for treatment as an adult criminal defendant, the juvenile court is required to conduct a hearing in compliance therewith. “ ‘This section is designed for two major purposes: one, to require a hearing on the issue of transfer if the juvenile court is considering relinquishing jurisdiction; and two, to define the procedures and requirements governing such transfer hearings.’ ” J. J. v. State of Ga., 135 Ga. App. 660, 663 (2) (218 SE2d 668) (1975). Neither the juvenile court (see R. S. v. State of Ga., 156 Ga. App. 460 (1) (274 SE2d 810) (1980)) nor the juvenile himself (see Reed v. State of Ga., 125 Ga. App. 568 (188 SE2d 392) (1972)) can waive compliance with OCGA § 15-11-39 as a condition precedent to the transfer of a juvenile for treatment as an adult criminal defendant. Such a transfer must be “done strictly in accordance with [OCGA § 15-11-39], the only means by which the juvenile court can divest itself of jurisdiction under the Juvenile Code.” (Emphasis supplied.) J. W. A. v. State of Ga., 233 Ga. 683, 684 (212 SE2d 849) (1975).

It follows that the General Assembly has determined that, at least with regard to the issue of his transfer for treatment as an adult criminal defendant, a juvenile must abide by the determination of others as to what will be in his best interest. Those who are being treated as adult criminal defendants are to be afforded certain constitutional rights which are not afforded to those who are being treated as juveniles. Thus, the right to trial by jury is available to adults charged with a crime but not to juveniles charged with delinquency. However, appellant makes no contention that he is constitutionally entitled, as a juvenile, to make his own unilateral determination to be treated as an adult criminal defendant and thereby receive those constitutional rights that would devolve upon one who occupies that adult criminal defendant status. Accordingly, we hold that appellant has no absolute right to waive juvenile court jurisdiction and that the juvenile court correctly held that, absent compliance with OCGA § 15-11-39, there could be no such transfer of appellant to another court for treatment as an adult criminal defendant.

Decided April 28, 1988.

Mitchell Rodriquez, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Lyn K. Armstrong, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76092.
    QUALITY RENTAL COMPANY, INC. et al. v. GRIER.
    (369 SE2d 276)
   Carley, Judge.

This tort action arose out of a collision between two vehicles. Appellee-plaintiff was a passenger in one of the vehicles. The other vehicle was being driven by appellant-defendant Arthur Anderson while he was in the course of his employment with appellant-defendant Quality Rental Company, Inc. Appellee brought suit, alleging that appellant Anderson had been negligent in his operation of the vehicle and that his negligence was imputable to appellant Quality Rental Company, Inc. under the theory of respondeat superior. In their answers, appellants denied the material allegations of appellee’s complaint. The case proceeded to trial before a jury. The jury returned a verdict in favor of appellee and against both appellants. Appellants appeal from the judgment which was entered by the trial court on the jury’s verdict.

1. The trial court refused to admit evidence of collateral payments received by or made on behalf of appellee for the medical expenses which she had allegedly incurred as a result of the collision. Relying upon OCGA § 51-12-1 (b), appellants enumerate this evidentiary ruling by the trial court as error.

Appellee’s cause of action arose prior to July 1, 1987, which was the effective date of OCGA § 51-12-1 (b). Appellants urge, however, that OCGA § 51-12-1 (b) would nevertheless be applicable because this case was tried subsequent to the statute’s effective date. “OCGA § 51-12-1 (b) works a substantive change in the law governing collateral benefits. There is no expressed or clear intention of the legislature to give the statute retroactive effect. Therefore it shall be given prospective effect only and does not apply [where the cause of action arose prior to the effective date of the statute].” Polito v. Holland, 258 Ga. 54 (5) (365 SE2d 273) (1988). See also Bryan v. King, 187 Ga. App. 7 (369 SE2d 278) (1988). Since OCGA § 15-12-1 (b) is inapplicable to this case, it follows that the trial court correctly refused to admit evidence concerning collateral payments.

Decided April 13, 1988

Rehearing denied April 28, 1988.

Thomas C. James III, for appellants.

Craig M. Childs, Robert S. Slocumb, for appellee.

2. Appellants enumerate as error the trial court’s refusal to give a requested charge based upon the provisions of OCGA § 51-12-1 (b). This enumeration of error is controlled adversely to. appellants’ contention by the holding in Polito v. Holland, supra, and by Division 1 of this opinion.

3. Over appellants’ objection, the trial court allowed the investigating officer to give her opinion as to the speed that appellant Anderson was travelling at the time of the collision. On appeal, appellants enumerate this ruling as error, contending that the investigating officer’s opinion was based in part on hearsay.

Our review of the record shows that, on direct examination, the investigating officer was, in fact, allowed to give her opinion as to the speed that appellant Anderson was travelling at the time of the collision and the basis for her opinion. Nothing in her testimony, however, would indicate that her opinion was based in part upon hearsay. Compare Haynes v. Huff, 165 Ga. App. 192 (299 SE2d 902) (1983); Avant Trucking Co. v. Stallion, 159 Ga. App. 198 (1) (283 SE2d 7) (1981); Calhoun v. Chappell, 117 Ga. App. 865 (162 SE2d 300) (1968); Augusta Coach Co. v. Lee, 115 Ga. App. 511 (154 SE2d 689) (1967). On cross-examination of the investigating officer, appellants did not undertake to show that her opinion was based in part on hearsay. It follows that there was no error in admitting the testimony. “ ‘A qualified witness may give opinion evidence as to speed based on data observed immediately after a collision, such as skid marks, distances, and the positions of and damage to the vehicles. If it be developed by further examination that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence.’ [Cits.]” Firestone Tire &c. Co. v. King, 145 Ga. App. 840, 846 (6) (244 SE2d 905) (1978).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76163.
    BRYAN et al. v. KING et al.
    (369 SE2d 278)
    Decided April 13, 1988.

      Paul C. Myers, Wesley Williams, for appellants.

      John A. Dickerson, for appellees.
   Carley, Judge.

Appellant-plaintiff Skyler Bryan brought suit against appelleedefendants to recover damages for injuries he allegedly sustained in a two-vehicle collision. Appellant-plaintiff Yvonne Bryan brought a separate suit against appellees to recover for her loss of consortium. Appellees answered, denying the material allegations of the complaints. The two actions were consolidated for a single trial. Before the case was brought to trial, the trial court entered an order which was to the effect that evidence of collateral payments which had been received by appellant Mr. Bryan would be admissible at trial. See OCGA § 51-12-1 (b). The trial court, however, also certified its order for immediate review and this appeal results from this court’s grant of appellants’ application for an interlocutory appeal.

Appellants urge that OCGA § 51-12-1 (b) does not apply to this case because their causes of action arose prior to July 1, 1987, the date that the statute became effective. “OCGA § 51-12-1 (b) works a substantive change in the law governing collateral benefits. There is no expressed or clear intention of the legislature to give the statute retroactive effect. Thérefore it shall be given prospective effect only and does not apply [where the cause of action arose prior to the effective date of the statute].” Polito v. Holland, 258 Ga. 54, 58 (365 SE2d 273) (1988). See also Quality Rental Co. v. Grier, 187 Ga. App. 5 (369 SE2d 276) (1988). Since OCGA § 51-12-1 (b) is not applicable under the present facts, it follows that the trial court erred in ruling that evidence of collateral payments received by appellant Mr. Bryan would be admissible upon the trial of this case.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    76139.
    WIPO, INC. v. COOK.
    (369 SE2d 306)
   Sognier, Judge.

John Cook brought an action against A. J. Textiles, Inc. (A. J.) and Wipo, Inc. to recover commissions claimed under a sales representation agreement. The jury returned a verdict in favor of Cook against Wipo, Inc. for $10,000. After denial of its motion for judgment n.o.v., Wipo, Inc. appeals.

1. Appellant contends the trial court erred by denying its motion for judgment n.o.v. because appellee failed to carry his burden of proving damages, and there was no evidence before the jury from which it could properly calculate damages.

The record reveals that in 1982, appellant, a company manufacturing and selling industrial toweling products, formed A. J. as a subsidiary corporation to sell certain linen goods for medical and hospital use. In July 1982 appellee entered into a sales representation agreement with A. J. which provided that he would be its exclusive sales representative and that “[c]ommission will be paid at the rate previously established. Commissions are not considered final until invoice is paid. However, commissions is [sic] credited at the time of invoicing and will be based on the selling price received by the Company.” The agreement further provided that it was terminable by either party upon 30 days written notice to the other party, and that “[u]pon termination notice, commission will be paid on collection of accounts.” In December 1985 appellee was given such a 30-day notice of termination by A. J. and it is undisputed that at that time, appellee agreed he would solicit no more orders. Appellee testified at trial he had $450,000 in outstanding orders as of the date of the termination of his employment with A. J. However, when asked on cross-examination: “Do you have any evidence today of this $450,000 dollars that you say was shipped that has been paid to A. J.,” appellee answered “[n]o, sir, I don’t .... I have no way of knowing whether they’ve been paid or not. I feel that they have been.”

“[T]he standards for granting a motion for judgment n.o.v. are the same as those governing the direction of a verdict. [Cit.] ‘Thus, the motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded ....’” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (256 SE2d 916) (1979). Although appellee’s testimony and that of Arwood Begor, the former president of A. J., provided some evidence of the previously established and customary commission rates, from which the jury might have calculated commissions, the contract specifically provided that upon termination notice commission would be paid only when payment was collected on the accounts. It was thus necessary that appellee prove that appellant had been paid in order to show his entitlement to commissions. Since it is clear from appellee’s testimony that he did not, and could not, do so, he failed to prove that appellant actually breached the contract, or that appellee was entitled to any commissions. “ ‘The burden is on the plaintiff to show both the breach and the damage [cit.], and this must be done by evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of damages. [Cits.] It cannot be left to speculation, conjecture and guesswork. [Cit.]’ [Cits.]” Accent Walls, Inc. v. Parker, 162 Ga. App. 633-634 (292 SE2d 509) (1982). Accordingly, we agree with appellant that the trial court erred by denying its motion for judgment n.o.v. Johnston v. Bill Fancher & Assoc., 179 Ga. A.pp. 67, 69 (345 SE2d 144) (1986).

Decided April 28, 1988.

Ronald C. Harrison, Patrick J. Gibbs, for appellant.

C. Ray Griffith, for appellee.

2. Remaining enumerations of error are rendered moot by our decision in Division 1.

Judgment reversed.

Carley, J., concurs. Deen, P. J., concurs dubitante.


author: Birdsong, Chief Judge.

text:
    76162.
    NEWELL v. BROWN.
    (369 SE2d 499)
   Birdsong, Chief Judge.

This is an appeal from the order of the Superior Court of Cobb County which denied appellant’s motion to set aside a default judgment.

Appellee filed suit against James R. Buddin and Corky Newell, individually and d/b/a Jim-Cor, Inc. for damages resulting from defendant’s poor workmanship and faulty construction of a certain house, for treble damages based on unfair or deceptive acts or practices in the conduct of consumer transactions in violation of the Fair Business Practices Act (OCGA § 10-1-390 et seq.), for damages resulting from breach of express and implied builders’ warranties, and for exemplary damages.

Appellee’s counsel, believing that attorney Shriver duly represented all defendants in the pending litigation obtained the consent of appellee to forego formal service of process upon appellant and the other co-defendants and to allow attorney Shriver to execute an Acknowledgement of Service after receipt of process. Attorney Shriver subsequently acknowledged service of appellee’s complaint “on behalf of Defendants, James R. Buddin, Corky Newell, and Jim-Core [sic], Inc.,” and expressly declared that “[a]ll other and further service and notices are hereby waived.”

Subsequently, attorney Shriver failed to file any answer or defensive pleadings for any of the three named defendants. On January 16, 1987, a default judgment and certificate of default were filed. No acknowledgment of service of the default judgment order or of the certificate of default apparently was filed with the court by the appellee. On February 6, 1987, appellant filed a motion to set aside the default judgment entered against himself individually “on jurisdictional grounds based upon lack of jurisdiction over the person.” On July 10, 1987, appellant filed an amendment to the motion to set aside by addition of the grounds that “a non amendable defect appears upon the face of the Record of Pleadings,” as the contract in question was a “private transaction” and “not a transaction within the public consumer market place” as intended and defined by OCGA § 10-1-390.

On October 2, 1987, the order of the trial court denying appellant’s motion to set aside and motion for new trial and affirming the default judgment was filed.

Appellant enumerates as error that the trial court erred in denying his motion to set aside the default judgment and allow him to file his defensive pleadings.

A default judgment based on other than legal service of process is null and void in the absence of valid acknowledgment of service or waiver. See Hardwick v. Fry, 137 Ga. App. 771 (225 SE2d 88); American Photocopy &c. v. Lew Deadmore &c., 127 Ga. App. 207 (193 SE2d 275); Foster v. Foster, 207 Ga. 519 (3) (63 SE2d 318). A defendant may acknowledge service of process or waive it by a writing signed either by himself or someone authorized by him. OCGA § 9-10-73. The requirement for personal jurisdiction may be waived, between the parties, by execution of a valid acknowledgment of service. See Jones v. Jones, 209 Ga. 861 (1) (76 SE2d 801); Georgia Creosoting Co. v. Moody, 41 Ga. App. 701 (1) (154 SE 294); see also Rawlins v. Busbee, 169 Ga. App. 658 (1) (b) (315 SE2d 1) (court may acquire jurisdiction of the person by acknowledgment of service); OCGA §§ 9-11-12 (h); 15-1-2 (jurisdiction over the person may be waived). An acknowledgment of service executed by one as attorney for the defendant is prima facie authorized until the contrary appears. Jackson v. Jackson, 199 Ga. 716 (35 SE2d 258). When a defendant challenges the sufficiency of service, including a challenge of the sufficiency of a waiver generated by the execution of an acknowledgment of service, he bears the burden of proof. See Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838); Brown v. WTA/CHC, 172 Ga. App. 636 (324 SE2d 205). When a defendant executes a waiver of service, either personally or through an authorized agent, by signing an acknowledgment like the one signed in this case, he is thereafter precluded from complaining because of the absence of service. See, e.g., Jones v. Jones, supra at 863. Likewise, if an attorney signs an acknowledgment of service in behalf of an alleged client, the attorney is then estopped to deny his lack of authority to act. See Jackson, supra at 719-720. However, when only the attorney signs the acknowledgment of service, the alleged client is not estopped to contest the authority of the attorney to act in the alleged client’s behalf. Id. When such a contest is initiated by the alleged client attacking the authority of the signing attorney, the attorney should then be free to submit evidence relevant to the support or refutation of the alleged client’s assertions, as “[t]he object of all legal investigation is the discovery of truth,” and in certain circumstances the attorney may be required to do so by the trial judge. See OCGA §§ 15-19-7; 24-1-2.

In Jackson this court established the following methodology in resolving challenges to an attorney’s authority to execute an acknowledgment of service: “The defendant may acknowledge service or process, but this must be done in writing by him or someone authorized by him to do so. Code, § 81-211 [OCGA § 9-10-73.] No warrant of attorney is required in this State, and an acknowledgment of service signed by one as attorney for the defendant is prima facie authorized until the contrary appears. [Cits.] . . . While this presumption is not conclusive, but is one which may be rebutted by the party for whom the attorney purports to act if he proceeds in due time, the burden is upon the party to show the want of authority in the attorney. [Cits.] It is also true that ‘A judgment rendered against a party . . . upon a wholly unauthorized appearance of an attorney, if the act of the attorney be not ratified, will be set aside in a direct proceeding for that purpose, in law or equity, if the party is not guilty of unreasonable delay after notice or knowledge of the judgment. . . .’” (Emphasis supplied.) Jackson, supra at 719-720. While an acknowledgment of service executed by an attorney in behalf of an alleged client can be traversed and impeached by showing want of authority in the attorney, the acknowledgment of service is of itself evidence of a higher order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit. See Woods v. Congress Fin. Corp., 149 Ga. App. 156, 157 (253 SE2d 834).

In this case, appellant and attorney Shriver have both executed affidavits denying the existence of any authority, consent, or permission on the part of the latter to acknowledge service on behalf of appellant in the case at bar. Attorney Shriver in his affidavit asserts that he was mistakenly informed by James R. Buddin that he was also to represent appellant in this case, but in fact he had no contract or agreement with appellant to represent him and had not been given any authority to consent by the appellant either to represent him in the action or to acknowledge service for him. Further, attorney Shriver asserts that at no time before the default judgment was entered did he inform appellant of or send him a copy of the acknowledgment of service. In addition the appellant asserts that at no time prior to January 22, 1987, did he have any knowledge or notice of the suit being filed, of the acknowledgment of service, or notice of any trial date or of the default judgment. Appellant further asserts that at no time prior to January 22, 1987, did he have any knowledge that he was a named party defendant in this case; that attorney Shriver did not. represent him in his case; and, that appellant has terminated and disassociated himself as an officer and stockholder of Jim-Cor since April 10, 1986.

Appellee offered no direct evidence in rebuttal to these disclaimers of agency and authority by appellant and attorney Shriver. Rather, appellee relied upon certain circumstantial evidence in an attempt to refute appellant’s claim. Certain of this circumstantial evidence was primarily relied upon by the trial court in its determination that “at all times pertinent hereto, from January 1986 until [appellant’s] Motion to Set Aside the Default Judgment was filed on or about February 6, 1987, it is evident to the Court that attorney . . . Shriver . . . acted on behalf of all Defendants in the . . . action, including [appellant], and that he had the authority to act on their behalf as their attorney of record.”

The pertinent circumstantial evidence offered by appellee includes the following: That attorney Shriver engaged in various communications with appellee’s attorney in which he professed to represent appellant and the other defendants; and that during the course of these communications certain matters were discussed including a proposal by all the defendants to submit the case to the American Arbitration Association; and, that attorney Shriver filed acknowledgment of service, certain pleadings and generally represented appellant and the other defendants in a similar case entitled Bruce W. Logan et al. v. C. R. Newell et al., and that attorney Shriver was representing appellant in the Logan case after April 10, 1986. In support of his ruling, the trial judge took judicial notice of the fact that “lack of authority” on the part of attorney Shriver to act for appellant was apparently not present in the analogous civil action of Logan.

We are satisfied that appellant has in this particular instance timely raised the issue of attorney Shriver’s authority to acknowledge service, and has timely attacked the default judgment for lack of jurisdiction. The appellant has denied actual knowledge of the default judgment until January 22, 1987. Attorney Shriver supports appellant’s assertion. Nothing in the trial record directly rebuts this assertion. Appellant filed his motion to set aside on February 6, 1987. Thus, he acted to contest the default judgment within 30 days of its filing and apparently within 15 days of his notice thereof. Likewise, he contemporaneously challenged the authority of attorney Shriver within 15 days of his notice of the acknowledgment of service. Thus, appellant has not engaged in any unreasonable delay in asserting his claim within the meaning of Jackson v. Jackson, supra. Further, a judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. OCGA § 9-11-60 (f).

An attorney at law acts as an agent for his client/principal. See Jackson v. Fincher, 128 Ga. App. 148 (5) (195 SE2d 762). Proof of an agency relationship can be shown by circumstantial evidence, apparent relations, and conduct of the parties. National Property &c. Ins. Co. v. Wells, 166 Ga. App. 281 (2) (304 SE2d 458). However, it is a well known principle of law that “[circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding ... to that effect, will not support a verdict [judgment or ruling of the court], when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the [party], it was affirmatively shown that no such fact existed.” Myers v. Phillips, 197 Ga. 536, 542 (29 SE2d 700); Dozier v. Wallace, 169 Ga. App. 126 (4) (b) (311 SE2d 839). Appellant has introduced facts showing that no attorney-client agency relationship existed between himself and attorney Shriver for purposes of the latter’s representing appellant in any phase of the litigation in the case at bar. See generally Bishopsgate Ins. Co. v. Cactus Club, 176 Ga. App. 354, 355 (335 SE2d 685) (bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship). As in Bishopsgate, “[w]e find no basis for refusing to attribute to the affidavit [of appellant and of attorney Shriver] the competency that is shown on its face.” Id. The affidavits of appellant and attorney Shriver go well beyond being mere denials of the existence of the attorney-client agency relationship. These affidavits give a detailed and logical explanation for the conduct of both of these parties and provide additional assertions of fact in support of their denial of the existence of any authority in attorney Shriver to execute an acknowledgment of service in behalf of appellant. Moreover, the circumstantial evidence of appellee that attorney Shriver in various communications and conduct purported to represent appellant is entirely consistent with attorney Shriver’s statement that he had been misinformed by James R. Buddin that he was to represent appellant, and that, in fact, he had no such authorization from appellant to do so. Further, the mere fact that attorney Shriver was apparently representing appellant in the Logan case after April 10, 1986, is not inconsistent with any fact asserted by either appellant or attorney Shriver. Appellant never claimed that he did not use the services of Shriver after April 10, 1986. Rather his statement was that he disassociated himself as an officer and stockholder of Jim-Cor after that date. The fact that appellant may have used Shriver’s services in the Logan case is not inconsistent with the denial by appellant and Shriver of an attorney-client agency relationship in the present case. We do not know when appellant first contacted Shriver to represent him in Logan or any of the circumstances leading to that decision. We refuse to speculate as to the reason why appellant may have retained Shriver to represent him in Logan and not in the case at bar. Suffice it to say that the use of Shriver’s services in Logan is not per se inconsistent with an election by appellant not to use Shriver in this case.

Decided April 28, 1988.

G. Fred Bostick, for appellant.

Garvis L. Sams, Jr., for appellee.

We believe that the appellant has met the burden placed upon him by Jackson, supra, in order to rebut the presumption that attorney Shriver was acting with appellant’s authorization. Moreover, we are satisfied that the affidavits submitted not only by appellant but also by attorney Shriver are the strongest type of evidence, bearing on the issue of Shriver’s authority to execute the acknowledgment of service, which the nature of this case will admit. See Woods, supra at 157. Accordingly, we find that the acknowledgment of service was executed without appellant’s authorization, and that the trial court lacked jurisdiction over the person of appellant.

Appellee’s motion for damages pursuant to OCGA § 5-6-6 is denied. Prattes v. Southeast Ceramics, 132 Ga. App. 584 (3) (208 SE2d 600).

Judgment reversed.

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


text:
    76252.
    SMITH v. THE STATE.
    (369 SE2d 307)
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offense of burglary. Appellant appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates the general grounds. After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of guilt of the defendant beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the admission into evidence of testimony concerning a statement made by him to a police officer. Appellant’s contention is that this statement was the inadmissible product of an illegal arrest.

Decided April 28, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Assistant District Attorney, for appellee.

The investigating officer testified, that, at the time of his conversation with appellant, appellant was not under arrest and was free to walk away. Thus, the trial court was authorized to find that appellant’s statement to the officer was not the product of any arrest, illegal or otherwise. “Not every encounter between the police and a citizen is an intrusion which requires a reasonable suspicion of wrongdoing. ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ [Cit.] ‘The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” [Cit.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification. Moreover, characterizing every street encounter between a citizen and the police as a “seizure,” while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices . . . (A) person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ [Cit.] On the facts before us, we conclude there was no unlawful detention during the brief encounter prior to the arrest of the [appellant]. . . .” King v. State, 161 Ga. App. 382, 382-383 (1) (288 SE2d 644) (1982).

The evidence also clearly authorized a finding that appellant’s statement to the officer was not the product of custodial interrogation. Accordingly, the failure of the police officer to have read appellant his Miranda rights was no basis for excluding evidence of appellant’s statement. The trial court did not err in allowing into evidence the officer’s testimony concerning appellant’s pre-arrest statement.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    75010.
    FORREST v. PEACOCK.
    (369 SE2d 811)
    Decided April 29, 1988.

      Thomas L. Washburn III, for appellant.

      E. Wycliffe Orr, for appellee.
   Banke, Presiding Judge.

The prior decision of this court in the present case, reported at 185 Ga. App. 189 (363 SE2d 581) (1987), having been reversed by the Supreme Court in Peacock v. Forrest, 258 Ga. 158 (366 SE2d 290) (1988) that decision is hereby vacated; and, in accordance with the directive of the Supreme Court, the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Parley and Benham, JJ., concur.


author: Beasley, Judge.

text:
    75870.
    STROZIER v. THE STATE.
    (369 SE2d 504)
   Beasley, Judge.

Defendant appeals his criminal trespass conviction, based upon a criminal information that he “did enter and remain upon the land and premises of Leverte Michelle Woods after being advised by . . . Leverte Woods to depart.” See OCGA § 16-7-21 (b) (3).

1. The first enumeration of error asserts that the trial court erred by failing to insure that defendant knowingly and voluntarily waived his right to counsel.

The record contains a “waiver of counsel,” signed by defendant, which reads: “I, the undersigned, defendant in the above stated matter, having been fully acquainted with my right to counsel, fully understand my rights involved, do desire not to be represented by counsel and do hereby waive my right to counsel fully and completely in these proceedings.” This is all the record and transcript contain with reference to defendant’s waiver of right to counsel.

Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), observed: “much uncertainty could be removed from future cases if a complete record is made. We therefore hold . . . the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” In Glaze v. State, 172 Ga. App. 802 (325 SE2d 172) (1984), where defendant signed a waiver of rights and answered summarily posed questions about whether he understood the written waiver, this court reversed his conviction because defendant was not warned of the danger of proceeding without counsel.

The generally applicable principle in this type of situation has been that we presume the trial court did its duty in the absence of a showing to the contrary. Gunter v. State, 243 Ga. 651, 654 (1) (256 SE2d 341) (1979); Key v. State, 147 Ga. App. 800, 804 (14) (250 SE2d 527) (1978). However, in light of Clarke, supra, and the cases subsequent to it, the failure to show by the record that the trial court made a finding with regard to defendant’s voluntary and knowing choice to proceed pro se is reversible unless the error is shown to be harmless. McCook v. State, 178 Ga. App. 276 (342 SE2d 757) (1986) [a two judge case]. In this case mitigating factors, such as counsel being present to assist the pro se defendant, are absent and we cannot find a lack of harm beyond a reasonable doubt as required where constitutional deprivation is alleged. Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967). Compare Lazenby v. State, 181 Ga. App. 854 (354 SE2d 196) (1987); Shavers v. State, 179 Ga. App. 45, 46 (345 SE2d 134) (1986); Bowen v. State, 173 Ga. App. 361 (2) (326 SE2d 525) (1985).

2. Defendant contends that a rational trier of fact could not have found defendant guilty beyond a reasonable doubt. The two pertinent subsections of OCGA § 16-7-21 are (b) (2) & (3) which provide: “A person commits the offense of criminal trespass when he knowingly and without authority: (2) Enters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, [or] rightful occupant. . . that such entry is forbidden; or (3) Remains upon the land or premises of another person . . . after receiving notice from the owner, [or] rightful occupant ... to depart.”

The only substantive difference between the offenses as described in the two subsections of the criminal trespass statute “lies in the time of the giving of the notice.” Subsection (b) (2) “applies where notice forbidding entry is given before the accused goes upon the premises.” Subsection (b) (3) “deals with a lawful entry and remaining on the premises after having been directed to leave.” (Emphasis in original.) Scott v. State, 130 Ga. App. 75, 76 (2) (202 SE2d 201) (1973). See State v. Raybon, 242 Ga. 858, 861 (252 SE2d 417) (1979). The evidence dealt with notice being given both before and after. However, the criminal information, although using the terminology “enter and remain,” more closely tracks (b) (3).

“Remaining on the land without authority is an essential element in the crime of criminal trespass.” Davis v. State, 147 Ga. 107, 108 (248 SE2d 181) (1978). Defendant contends that since the complaining witness lived in an apartment with common entrance ways, halls, etc., the evidence did not show that he was on the premises of another from which he was required to leave. However, the witness stated that defendant was on her property when she made repeated requests for him to leave. The evidence was sufficient for a rational trier of fact to find defendant guilty of criminal trespass beyond a reasonable doubt. Johnson v. State, 172 Ga. App. 333, 334 (2) (323 SE2d 255) (1984); Davis v. State, supra.

Decided April 29, 1988.

Charles C. Witcher, for appellant.

Parnell H. Odom, Solicitor, D. Scott Cummins, Assistant Solicitor, for appellee.

3. Defendant urges that the court erred by failing to declare a mistrial, sua sponte, when the prosecuting attorney made statements within the jury’s hearing which were prejudicial and pertained to matters not in evidence. Since this is unlikely to recur upon re-trial, we do not consider this enumeration of error.

Judgment reversed.

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


text:
    76152.
    WINDOM v. THE STATE.
    (369 SE2d 311)
   Birdsong, Chief Judge.

Appellant Albert Windom, Jr., was indicted for the offenses of child molestation in three counts, rape and statutory rape in two counts, and two counts of exhibiting to a minor sexually explicit materials prohibited by OCGA § 16-12-103 (a). He was found guilty of the charges of child molestation and exhibiting the sexually explicit material to minors, and appeals from the jury verdict and denial of his motion for new trial. Held:

1. Appellant contends that the evidence was insufficient for a conviction of either offense under the general grounds. The evidence showed that the two .victims, sisters aged seven and eight, had lived with their mother in appellant’s home for about a year and a half. The mother found the two victims awake about 4:00 a.m. after they had been alone in the house with appellant. The elder child had baby oil rubbed on her torso and her panties, had been pulled down. When questioned, she told her mother that appellant had put it on her. Although appellant begged her not to and hung up the telephone, the mother called the police, who came to the house and after conducting an investigation, took everyone to police headquarters where the girls were examined and appellant was arrested. Both girls were found to have vaginal openings much larger than normal and perforated hymens. Appellant waived his Miranda rights and made an oral statement in which he admitted showing X-rated movies and books to the older girl and rubbing her vagina, and that she had masturbated him. He denied having sexual intercourse with the elder child, and denied having any contact of a sexual nature with the younger child. At trial, both children were qualified as competent and testified about the sexual acts appellant perpetrated upon them while their mother was absent. The older child stated that appellant began “messing” with her shortly after they had moved into his house, but that she had not told anyone about it because she was scared. The police searched the house with the mother’s consent, finding sexually explicit books and movies in the bedroom she shared with appellant, and a bottle of baby oil in the room used by appellant as an office. The mother’s testimony as to what the girls told her when she questioned them on the night she found them awake corroborated their trial testimony. A VCR video tape which the elder child identified as one appellant had showed her was viewed by the jury.

This evidence was sufficient to enable a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crump v. State, 183 Ga. App. 43 (357 SE2d 863); Henson v. State, 182 Ga. App. 617 (356 SE2d 556).

2. The mother’s testimony as to what the younger victim told her on the night in question was admitted in evidence over appellant’s objection, pursuant to OCGA § 24-3-16. Appellant complains that this evidence should not have been allowed because the trial judge did not make a finding of “sufficient indicia of reliability” as required by the statute. The Georgia Supreme Court, in Reynolds v. State, 257 Ga. 725 (2) (363 SE2d 249), decided this issue adversely to appellant, by holding that “OCGA § 24-3-16 does not require a hearing to determine ‘indicia of reliability’ be held prior to receiving the testimony . . . [and] we cannot say that failure to do so in this case was error. . . .” The trial judge is presumed to know the law (Dixon v. Dixon, 211 Ga. 557, 563 (87 SE2d 369)) and presumed to “faithfully and lawfully [perform] the duties devolving upon it by law.” Sullivan v. Brownlee, 174 Ga. App. 813 (1) (331 SE2d 622). Hence, implicit in any ruling by a trial court is that he has made the necessary finding of admissibility before admitting such evidence.

3. Appellant’s final enumeration of error is that the trial court unfairly prejudiced the jury by allowing the video to be shown as evidence of an OCGA § 16-12-103 violation, when the statute has been declared unconstitutional. At trial defense counsel argued that because the display provision (subsection (e)) and the library exception (OCGA § 16-12-104) were stricken in American Booksellers Assn. v. Webb, 643 FSupp. 1546 (N.D. Ga. 1986), and the other provisions are inseparable, the entire statute was unconstitutional. This issue has recently been resolved adversely to appellant in Hunter v. State, 257 Ga. 571, 578 (6) (361 SE2d 787), which specifically holds that the cited federal court decision “does not prohibit the state from prosecuting [a defendant] for violating the exhibition and definition components of the Act.” Id. at 578. Thus we have no grounds for reversal.

Decided April 29, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    76296.
    GAINEY v. THE STATE.
    (369 SE2d 313)
   Birdsong, Chief Judge.

Marvin Gainey, the appellant, was indicted for carrying a weapon at a public gathering, possession of a sawed-off shotgun, and aggravated assault. The jury returned a verdict of guilty only as to carrying a weapon at a public gathering and aggravated assault.

The State introduced evidence to show that on the evening of January 24,1987, in a restaurant and bar, known as Melvin’s Place, in Bibb County, Gainey was seen walking in the front door with a gun. Donald Willis, who worked there, testified that Gainey had a “sawed-off shotgun [at] his side” and he grabbed Gainey from the rear about both of his upper arms, but Gainey “just snatched away and shot.” He looked in the direction where Gainey had shot and saw Darrell Addams, who was nicknamed “Peppi,” getting up off the floor “in the vicinity of the shot. . . .” Willis said: “I saw him raise the gun and shoot him [Peppi].” Joseph Willis, the father of Donald, was also present, saw Gainey fire his shotgun, leave the cafe and drive away. Neither Joseph Willis nor either of his two sons saw Peppi with a weapon at any time that evening.

However, David Gibb and Curtis Spencer testified that they had been talking to two girls who were sitting in a booth with Peppi and they had called Gainey, who was shooting pool, to come over to the booth. When Gainey arrived, he said that Peppi produced a .25 automatic, pointed it at him and said: “What you want to do?” This was corroborated by Gibb and Spencer. Gainey said that he responded: “I don’t want to do nothing, man,” and left the cafe. He had driven Gibb’s pickup truck to the cafe that evening and he went to the truck and took out the 12 gauge shotgun, which he described as a “riot gun” with “a pistol grip,” which had a barrel length of “eighteen and three-quarters.” See OCGA § 16-11-121 (5). Gainey testified that when he entered with the shotgun, Willis grabbed him from behind and “I shoved him off and I seen Peppi still got the gun out and waving it just like that, like he was trying to get a shot on me, and so I — I fired.” He said that he “meant to fire it then. ... I was shooting at him [Peppi].” He was asked: “Were you trying to hit him? A. Not really. Q. But you shot at him? A. Yes.” Gainey said that he fired at Peppi “[t]o protect myself.” Gainey brings this appeal from the jury verdict of guilty as to aggravated assault and carrying a weapon at a public gathering. Held:

Decided April 29, 1988.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews III, Assistant District Attorney, for appellee.

Appellant raises only the question of the sufficiency of the evidence. The State was unable to find Peppi and he did not appear as a witness. However, it is not a requisite for conviction, that the victim testify. Brown v. State, 147 Ga. App. 638 (1) (249 SE2d 689). The question is not who testifies, but whether the witnesses who do testify establish all elements of the offenses charged. Heard v. State, 126 Ga. App. 62 (3) (189 SE2d 895). The evidence was in conflict as to whether Peppi was in possession of a pistol that night and whether Gainey acted in self-defense by going to his truck and securing a weapon, returning to the cafe and firing it at the victim. When the evidence is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468). An appellate court will not speculate as to what evidence the jury chose to believe or disbelieve for we are required to construe the evidence on appeal in favor of upholding the verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). The jury, as the triers of fact, after hearing all the evidence, apparently believed the testimony of Joseph Willis and his two sons, rather than that of appellant and his two friends. Seagraves v. State, 167 Ga. App. 513, 514 (306 SE2d 761). When the evidence is viewed in the light favorable to the verdict, it is sufficient to enable any rational trier of facts to find the existence of the offenses of which appellant was convicted, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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


text:
    75957.
    EDWARDS v. TRAMMELL et al.
    (369 SE2d 288)
   Carley, Judge.

This tort action arose out of the collision between an automobile and a school bus. The automobile was owned and was being driven by appellant-plaintiff Ms. Hope Edwards. The school bus was being driven by appellee-defendant Ms. Irene Trammell in the course of her employment with the appellee-defendant DeKalb County School District (District). Appellant’s complaint alleged that appellee Ms. Trammell had negligently operated the school bus and that her negligence was imputable to the appellee District under the theory of respondeat superior. Appellees answered, denying the material allegations of the complaint. Appellees also filed counterclaims, alleging that appellant’s negligence in the operation of her automobile had proximately caused damages to them.

After a period of discovery, appellees moved for summary judgment, both as to appellant’s main action and their own counterclaims. After conducting a hearing, the trial court granted appellees’ motions for summary judgment as to appellant’s main action. With regard to the counterclaims, the trial court also granted partial summary judgment in favor of appellees as to the issue of appellant’s liability but denied summary judgment as to the issue of damages. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees as to the issue of liability for the collision.

A review of the record shows the following: Immediately prior to the collision, appellee Ms. Trammell was travelling eastbound in the left-hand turn lane of North Druid Hills Road, approaching the intersection of North Druid Hills Road with LaVista Road. The traffic at this intersection is controlled by a traffic light and, as the school bus started to enter the intersection, the traffic light was then showing a green left-turn arrow. However, before the school bus could begin its left turn, the traffic signal changed to a yellow left-turn arrow. Appellee Ms. Trammell did not try to complete her left turn but stopped in the intersection to wait. At this point, the school bus was pointing straight ahead into the intersection but with a significant portion of the school bus projecting over the pedestrian crosswalk which crossed North Druid Hills Road. Because the traffic at the intersection was heavy, appellee Ms. Trammell was forced to wait until the traffic signal had turned red and the approaching westbound traffic on North Druid Hills Road had cleared before she began to turn the school bus left onto LaVista Road. Before turning left, however, appellee Ms. Trammell did look ahead to determine whether the westbound traffic on North Druid Hills Road had cleared and then she looked left to determine that traffic on LaVista Road would not impede her turn. It was only as she was turning the school bus left that appellee Ms. Trammell saw appellant’s automobile for the first time. Appellant was travelling westbound on North Druid Hills Road and the uncontroverted evidence is that appellant entered the intersection against a red traffic signal. Appellant’s automobile struck the front of the school bus. At the time of the collision, the school bus was travelling approximately five miles per hour. Appellant has no independent recollection of any events surrounding the collision and no one was in the automobile with her at the time. In her deposition, appellant stated that she was familiar with the intersection and that there is nothing in the intersection which would prevent a driver travelling westbound on North Druid Hills Road from seeing a school bus in the intersection.

Appellant urges that, on this evidence, a genuine issue of material fact remains as to the negligence of appellee Ms. Trammell in turning the school bus left on a red light across the lanes of westbound traffic on North Druid Hills Road. However, the law clearly provides that if appellee Ms. Trammell had lawfully entered the intersection but was required to stop before she could complete her turn, then she would have the right-of-way in the intersection as against other motorists. “One who has entered a controlled intersection on a green light but was required to stop therein . . . and while so stopped in the intersection the traffic light changed, nevertheless had the right-of-way and was authorized to proceed across it, and another who entered the intersection ... in this situation was required to yield to the vehicle already in it. [Cit.]” Lindsay v. Duvall, 122 Ga. App. 613 (1) (178 SE2d 312) (1970). See also Steele v. Blickstein, 170 Ga. App. 177 (316 SE2d 767) (1984). The evidence is undisputed that appellee Ms. Trammell did enter the intersection on a green left-turn arrow and that she was required to stop in the intersection when the green left-turn arrow turned to yellow. Appellant offered no evidence which contradicted appellee Ms. Trammell’s testimony that, when she stopped as the left-turn arrow turned from green to yellow, a significant portion of the bus projected over the crossway. Thus, there is no dispute that the bus, when it stopped, was entirely blocking pedestrian traffic across North Druid Hills Road. Therefore, even assuming that the evidence did not affirmatively show that the bus was projecting far enough out into the intersection so as to constitute a danger to the bus itself or to vehicles travelling on LaVista Road, it is clear that the bus was projecting far enough out into the intersection so as to constitute a danger to pedestrian traffic attempting to cross North Druid Hills Road. See OCGA § 40-6-90 et seq. Thus, under the undisputed evidence, the bus had the right-of-way in the intersection as a matter of law.

Appellant further urges that, even if, as a matter of law, the bus had the right-of-way in the intersection at the time of the collision, a genuine issue of material fact would yet remain as to whether appellee Ms. Trammell was negligent in exercising that right-of-way. “ ‘ “A driver having the right-of-way at an intersection has the right to assume that others will obey the rule of the road and will yield the right-of-way to him (cits.), and he has the right to proceed at a reasonable speed even though he sees another vehicle approaching. . . ’ [Cit.] This does not mean, of course, that such a driver has the right to drive blindly across an intersection, without regard to the approach or crossing of other vehicles and without exercising ordinary care to avoid a collision if he sees or by the exercise of ordinary care should have seen that one is imminent. [Cits.]” Merritt v. McCrary, 162 Ga. App. 825, 827-828 (2) (292 SE2d 920) (1982).

The undisputed evidence is that, notwithstanding her entitlement to assume that appellant would obey the red light, appellee Ms. Trammell nevertheless did look forward at the on-coming lanes of westbound traffic on North Druid Hills Road before she started her left turn onto LaVista Road. Even with this precaution and while proceeding at the speed of only 5 miles per hour, appellee Ms. Trammell’s bus was struck when appellant ran the red light. There is no conflicting evidence which would show that, within a period of time sufficient to avoid the collision, appellee Ms. Trammell saw or should have seen that appellant was going to run the red light. Thus, the undisputed evidence shows that appellee Ms. Trammell had the right-of-way in the intersection, that appellant ran a red light, and that, despite looking before turning, appellee Ms. Trammell did not see that appellant would fail to stop for the red light until appellant’s collision with the bus was unavoidable. Accordingly, this is' one of those rare cases wherein issues of negligence, contributory negligence and proximate cause are for the court rather than for a jury to decide. See generally Merritt v. McCrary, supra; Lindsay v. Duvall, supra. “[I]n the absence of any evidence showing appellee [s’] negligence and the presence of evidence showing negligence on the part of [appellant], we agree with the trial court that appellees have satisfied their evidentiary burden so as to support an award of summary judgment.” Jenkins v. Storey Trucking Co., 184 Ga. App. 672, 673 (362 SE2d 466) (1987).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.

Decided April 21, 1988

Rehearing denied May 2, 1988

Nicholas C. Moraitakis, Mary M. House, Clyde E. Rickard III, for appellant.

W. Jeffrey Langley, for appellees.

       It is true that the common law defense of contributory negligence is of no force and effect in Georgia. See generally Macon & Western R. Co. v. Johnson, 38 Ga. 409, 431-433 (1, 2) (1868); Ohio S. Express Co. v. Beeler, 110 Ga. App. 867, 868 (140 SE2d 235) (1965). It is clear, however, that contributory negligence as a defensive concept continues to be viable in this state. See Whatley v. Henry, 65 Ga. App. 668, 673 (6) (16 SE2d 214) (1941) (discussing the difference between contributory negligence as a complete defense to the defendant’s liability and comparative negligence which reduces the plaintiff’s recovery.)


text:
    75977.
    JONES v. THE STATE.
    (369 SE2d 314)
   Birdsong, Chief Judge.

Appellant, Mark Howard Jones, was convicted of two counts of armed robbery, two counts of simple battery, and one count of burglary. He appeals asserting two enumerated errors. Held:

1. Appellant’s first enumerated error is that the trial court erred in denying his motion in limine and in denying his motion for a new trial based on the same grounds. Appellant in his motion in limine moved the trial court to order that Sheryl Felts (who subsequently testified at trial under the name of Cheryl Phelps) not be compelled to testify against appellant who was alleged to be her common law husband. An unrecorded hearing on this issue was conducted, and the trial court subsequently denied the motion in limine (referring to the witness as Cheryl Felts) and later denied appellant’s motion for new trial. At trial the prosecution called Cheryl Phelps to the stand who testified without further objection by the appellant concerning certain matters which she had seen and heard. The only significant references which the witness made to being the alleged wife of the appellant was that she also uses the name Cheryl Jones, that she lived with the appellant, and that she was “common law married” to him. In addition, a detective sergeant testified that appellant at one point was “emotionally upset,” and that appellant asserted that the detective had “called his wife [Cheryl Phelps] and threatened her life.” We note, however, that the trial record does not disclose that Cheryl Phelps personally asserted a spousal privilege not to be compelled to testify against the defendant. See generally OCGA § 24-9-23; Price v. State, 175 Ga. App. 780 (1) (334 SE2d 711); Morris v. State, 173 Ga. App. 663 (2) (327 SE2d 792).

Although the trial court has declared appellant indigent, and has directed the State to provide him with a trial transcript, appellant apparently took no steps, by making timely request or otherwise, to insure that the pretrial hearing regarding his motion in limine was duly recorded. Consequently, he has not provided this court with a transcript of such proceedings. Moreover, the appellant apparently has failed to request that the trial court reconstruct this hearing. See generally OCGA § 5-6-41. Regardless of the reason for non-recording, in the absence of this transcript, we cannot consider appellant’s first enumerated error, White v. State, 174 Ga. App. 531 (2) (330 SE2d 760), as meaningful review of this error is dependent on the transcript of evidence adduced at the pretrial hearing, Brown v. State, 223 Ga. 540 (2) (156 SE2d 454). An appellant has the burden of showing error affirmatively by the record and appellant has not attempted to supplement the record as provided for in OCGA § 5-6-41. Therefore there is nothing for this court to review. Whisenhunt v. State, 156 Ga. App. 583 (4) (275 SE2d 82), cert. den.

2. Appellant’s second enumerated error is that the trial court erred in finding the appellant guilty as the evidence is insufficient to support the verdict.

The evidence shows that Mr. and Mrs. H. returned to their room at the Kings Inn hotel in the evening and found two men, one black and one white, going through their belongings. The first person Mr. H. saw, which was the white man, was wearing a stocking or pantyhose on his head. The white man grabbed Mr. H. who landed on the floor. When Mr. H. looked around, the white man was holding a gun on him. The black man asked Mr. H. for all of his possessions, and tore his wallet from him. Mrs. H. swung her purse at the white intruder, but he shoved her to the floor. She saw the black intruder kick her husband and bang his head into a dresser in an attempt to get his wallet. Her husband’s car keys were also taken by force by the black intruder. The two men took Mrs. H.’s wallet, which contained credit cards, two travelers checks, a gift certificate, and at least $400 in cash. Her green crystal rosary with a silver cross was among the things taken from her. Mrs. H. made an in-court identification of the appellant.

On the evening of the incident, the general manager of the Kings Inn observed the appellant and a black man in the parking lot in the general vicinity of the H.’s room. The black man was carrying a beige object that may have been a sack or bag. Cheryl Phelps testified that on the evening in question, the appellant and Bobby Jones, the co-accused, were in the appellant’s and her apartment. Bobby Jones had the appellant ask Cheryl for her pantyhose, which she gave to them. Bobby Jones then cut the legs of the pantyhose and the two men left the apartment. When the two men returned later that evening, they had travelers checks, jewelry and money with them. The jewelry was green crystal with a cross on the bottom of it. Bobby Jones burned the travelers checks. The next day the pantyhose were found in the garbage.

Our review of the trial transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided May 2, 1988.

Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    76270.
    FLOYD v. THE STATE.
    (369 SE2d 316)
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offense of homicide by vehicle in the first degree. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. The trial court, over appellant’s chain-of-custody objection, admitted into evidence two vials of blood and the results of the blood-alcohol test conducted thereon. Appellant enumerates this evidentiary ruling as error. He urges that a proper chain of custody was not established in that the vials were stored in an unlocked refrigerator prior to their being taken to the crime laboratory for testing.

“What [appellant] seeks is that the [S]tate, in order to render the evidence admissible, be required to negate all possibilities of tampering or error while the [blood] was in the [refrigerator]. This is not the law. . . . ‘The evidence shows that the blood sample was handled in the normal course of testing and there is nothing in the record that creates a suspicion that the blood tested was other than that taken from the [appellant]. The identity of such blood samples need not be proved beyond all possibility of doubt or that all possibility of tampering with them be excluded. The circumstances need only establish reasonable assurance of the identity of the sample.’ ” Meadows v. State, 135 Ga. App. 758, 758-759 (219 SE2d 174) (1975). “[T]here is no evidence that [the blood] was in any way tampered with [while in the refrigerator]; the evidence shows it had been sealed and not unsealed until tested and [there was] positive testimony that no one had tampered with the sample. . . .” Williams v. State, 145 Ga. App. 81, 83 (3) (243 SE2d 614) (1978). A proper chain of custody was clearly established and the trial court correctly admitted the blood and test results into evidence.

2. The trial court’s failure to sustain an objection to the admission of testimony which appellant characterizes as an inadmissible legal opinion is enumerated as error. The specific contention is that, over appellant’s objection, a police officer was erroneously allowed to give his legal opinion as to the concept of “implied consent” in the State of Georgia.

A review of the record shows that the police officer did not give an opinion as to the legal concept of implied consent. What he did was to give a description of the police procedures that were followed before the blood-alcohol tests were administered to appellant. Moreover, even if we were to assume that the trial court had committed error in admitting the officer’s testimony, that error was harmless. It was “highly probable that the admission of the testimony . . . did not contribute to the verdict. [Cits.]” Little v. State, 165 Ga. App. 389, 392 (3) (300 SE2d 540) (1983).

3. Appellant made two unsuccessful motions for mistrial during the prosecuting attorney’s closing argument. The denials of those motions are enumerated as error.

With regard to the first motion, the trial court denied a mistrial but did give the jury curative instructions. Appellant thereafter failed to renew his motion for mistrial. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit. [Cit.]” Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977).

Appellant made his second motion for mistrial when the prosecuting attorney’s argument touched upon the topic of the deceased victim. “ ‘Counsel is permitted, in the sound discretion of the court, to argue all reasonable inferences and deductions which may be drawn from the evidence. . . . [Cits.] The discretion of the trial court in handling these matters will not be disturbed on appeal except in clear cases of abuse and we find none here.’ [Cits.]” Minor v. State, 143 Ga. App. 457, 458 (2) (238 SE2d 582) (1977). See also Brand v. Wofford, 230 Ga. 750, 754 (9) (199 SE2d 231) (1973). The trial court did not err in denying appellant’s motion for mistrial.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs dubitante.

Deen, Presiding Judge,

concurring dubitante.

While concurring, but holding serious reservations, with the majority opinion and the judgment of affirmance, I do so with Division 3 of the majority opinion doubtfully and particularly because it does not reveal what the prosecutor’s argument was that it approved.

Rather than concurring only in the judgment (J/O), rendering this case a “physical precedent only” under our Rule 35 (b) and a well qualified and worthy candidate for “not to be reported” under Rule 37 (b), I vote here the seldom used but preferable, concurring vote of “dubitante.” The latter word in Black’s Law Dictionary, Fifth Edition, published by West, means: “Term is affixed to the name of a judge, in the reports, to signify that he doubted the decision rendered.” See several of many cases where judges of our Georgia Appellate Courts have concurred dubitante: Brandon v. Pritchett, 126 Ga. 286, 290 (55 SE 241) (1906); Stevens v. Stevens, 227 Ga. 410, 414 (181 SE2d 34) (1971); Studstill v. American Oil Co., 126 Ga. App. 722, 727 (191 SE2d 538) (1972); Jordan v. Fowler, 104 Ga. App. 824, 829 (123 SE2d 334) (1961). While I consider dubitante a weak concurrence, but nevertheless a full concurrence, in the case, it also has three laudable attributes and admirable advantages over the much used, presently popular J/O vote. (A) The case is a binding precedent under Rule 35 (b); (B) should always be reported under Rule 37 (a); and (C) usually provides the parties in the case, bench, bar, and public in general specific reasons for the reservations held by the judge. On the other hand, a J/O vote is like high blood pressure, a “case crippler” sub silentio without explanation to anyone, a handy but deadly veto weapon or widget for busy judges. It has been said that voting dubitante is holding one’s nose while voting to concur, while the J/O is really a dissent as to all, but sometimes limited to less than all, comments and discussions in the case except the “judgment” rendered.

Decided May 2, 1988.

J. Alvin Leaphart, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee. ;

Review of the transcript of the closing argument shows that the prosecutor remarked that the victim was not there to tell her story. “She’s buried. Her lips are sealed. She will have no more television to view. She’ll have no more chance to go to church. She’ll have no more chance to go to a gospel sing. And you have the right to conclude it’s because of Elijah Floyd.” I do not consider such argument impermissible.