text:
    A90A0715.
    WOODS v. THE STATE.
    (396 SE2d 74)
   McMurray, Presiding Judge.

Via two indictments, defendant was accused of entering an automobile with intent to commit a theft therein on March 3, 1989, and of entering an automobile with intent to commit a theft therein again on June 20, 1989. Following a jury trial, defendant was convicted of criminal trespass with regard to the March 3, 1989, offense and convicted of entering an automobile with intent to commit a theft therein with regard to the June 20, 1989, offense. Defendant’s motion for a new trial was overruled and he appeals. Held:

1. In his first enumeration of error, defendant complains the trial court erred in permitting the officer who arrested him in connection with the June 20, 1989, offense to testify over a hearsay objection that the owner of the automobile did not give defendant permission to enter the automobile. This enumeration of error is without merit.

Defendant was seen peering into various automobiles in the vicinity of the automobile in question. A window of that automobile was shattered and defendant was seen emerging from the automobile. He hid from passing cars, ran from the police and, at the time of his apprehension, possessed a screwdriver and pocketknife. Moreover, fragments of glass were observed on the seat of defendant’s pants following his arrest. Any error in admitting the officer’s testimony was manifestly harmless since the evidence was more than sufficient to establish that defendant entered the automobile with the requisite unlawful intent. See OCGA § 16-8-18; Heflin v. State, 183 Ga. App. 149, 150 (2) (358 SE2d 298).

2. In addition to charging the jury concerning entering an automobile with intent to commit a theft therein, OCGA § 16-8-18, the trial court charged the jury concerning misdemeanor criminal trespass, OCGA § 16-7-21 (b). As noted above, defendant was convicted of misdemeanor criminal trespass in connection with the March 3, 1989, offense. In his second enumeration of error, defendant asserts the trial court erred in failing to charge OCGA § 16-7-21 (a), misdemeanor criminal trespass by intentionally damaging property of another without his consent where the damage is less than $500. We find no error in this regard since, as discussed in Division 1, the evidence was sufficient to establish the completed offense of entering an automobile with intent to commit a theft therein in connection with the June 20, 1989 offense. See Mallory v. State, 166 Ga. App. 812, 814 (2) (305 SE2d 656). Moreover, defendant failed to submit a written request to charge the provisions of OCGA § 16-7-21 (a). See State v. Stonaker, 236 Ga. 1 (222 SE2d 354).

3. Defendant contends the trial court erred in joining the March 3, 1989, and the June 20, 1989 offenses for trial. We disagree.

“ ‘The Supreme Court of Georgia has held that a defendant has a right to severance “where the offenses are joined solely on the ground that they are of the same or similar character . . . ‘because of the great risk of prejudice from a joint disposition of unrelated charges.’ ” (Cits.) However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance “lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.” (Cits.) In determining whether severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense, the “court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” (Cit.)’ Coats v. State, 234 Ga. 659, 662 (4) (217 SE2d 260) (1975); Fluellen v. State, 163 Ga. App. 425 (2) (294 SE2d 653) (1982). Where the modus operandi of the perpetrator is so strikingly alike that it demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to a severance in the interests of justice. Davis v. State, 159 Ga. App. 356, 357 (1) (238 SE2d 283) (1981); Mack v. State, 163 Ga. App. 778, 779 (1) (296 SE2d 115) (1982).” Knight v. State, 185 Ga. App. 619, 620 (365 SE2d 484).

In the case sub judice, defendant entered two automobiles in which the windows were smashed. The entries took place during the night and within a few miles of each other. The evidence pertaining to each offense was simple and it is highly unlikely that the jury was confused by it. We cannot say the trial court abused its discretion in joining the offenses for trial. Defendant’s third enumeration of error is without merit.

Decided July 13, 1990.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William C. Akins, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0981.
    CARR v. THE STATE.
    (396 SE2d 76)
   McMurray, Presiding Judge.

Defendant Carr appeals his conviction of the offense of possession of a firearm by a convicted felon. The sole enumeration of error raises the sufficiency of the evidence. Held:

On October 21, 1989, at approximately 10:45 p.m., two rangers employed by the Georgia Department of Natural Resources were parked in a field in Terrell County near the intersection of Highway 55 and County Road 3. They observed a vehicle turn onto the county road and repeatedly turn into a pecan grove so as to shine its headlights into the grove. After the third time the vehicle turned into the grove, the driver and passenger were observed changing positions. Recognizing the pattern of conduct as similar to that used by night hunters for deer, the rangers turned on their blue light and proceeded to stop the vehicle. At the time of the stop, defendant was the passenger and the vehicle was driven by his fiancee, whom he had married by the time of trial. Upon stopping the vehicle, the rangers found a loaded .22 Magnum rifle on the front passenger’s seat and ten .22 Magnum “shells” on the passenger side floorboard. One of the rangers testified that .22 Magnum rifles were popular with nighttime deer hunters since they were powerful enough to kill deer, yet did not make much noise.

Defendant presented evidence that the automobile was one which had been loaned by a garage to his brother, that the rifle belonged to his brother, that the brother and a friend had been target shooting that afternoon and had returned after dark, that the brother had left the rifle in the back seat of the car, and that the presence of the rifle in the back seat was unknown to him when he invited his fiancee to go for a ride with him. Defendant’s fiancee testified that she was asleep when defendant awakened her and asked her if she wanted to go for a ride, that she got in the car and went back to sleep until defendant awakened her to show her the deer with the lights of the car, and that defendant asked her if she wanted to drive so they swapped positions. The fiancee testified that she never saw the rifle, even after they were stopped. Defendant testified that when he and his fiancee went out for a ride he did not know about the “gun” in the car, that the inside light in the car did not work, that when he looked back at the ranger’s blue light he saw the “gun” in the back seat for the first time, and that when he saw the “gun” he picked the “gun” up and tried to hide it “because I didn’t want to get caught with it.”

Decided July 13, 1990.

Collier, Bishop & Hunt, Charles R. Hunt, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

There is no merit in defendant’s contention that the evidence does not establish the requisite mens rea or criminal intent. “ ‘Criminal intent does not mean an intention to violate the law or to violate a penal statute, but means simply to intend to commit the act which is prohibited by a statute.’ See Daniel v. State, 179 Ga. App. 54 (1) (345 SE2d 143) (1986); Kennedy v. State, 46 Ga. App. 42 (1) (166 SE 442) (1932).” Pope v. State, 179 Ga. App. 739, 744 (4) (347 SE2d 703). Defendant’s own testimony shows that he assumed possession of the rifle and the jury was authorized to find that the circumstances did not justify defendant’s conduct. As evidence was also admitted showing defendant’s previous conviction of felony theft by taking, there was evidence from which a rational trier of fact could reasonably find defendant guilty beyond a reasonable doubt of possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Scott v. State, 193 Ga. App. 577, 579 (3), 580 (388 SE2d 416).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1064.
    McBRIDE v. THE STATE.
    (396 SE2d 78)
   McMurray, Presiding Judge.

Defendant McBride appeals his conviction of the offense of “peeping Tom,” OCGA § 16-11-61. Held:

1. The first enumeration of error contends the trial court erred in charging the jury as follows: “I charge you that if you find beyond a reasonable doubt that the defendant did peep or do similar acts for the purpose of spying or invading the privacy of others, the crime is complete regardless of who or what may have been seen.” Defendant argues that the charge was not adjusted to the evidence since it was error to instruct the jury, in effect, that the identity of the victim was immaterial. However, this contention is without merit since under OCGA § 16-11-61 the State is not required to show that a person is actually spied upon, the gravamen of the offense being that the spying took place regardless of whether the attempt to invade the privacy of another was successful. Chance v. State, 154 Ga. App. 543 (1) (268 SE2d 737); Butts v. State, 97 Ga. App. 465 (2) (103 SE2d 450). Thus, the allegation in the indictment as to the identity of the victim was mere surplusage, and the failure to prove this allegation is not a fatal variance requiring reversal of defendant’s conviction. Kelly v. State, 188 Ga. App. 362, 363 (2) (373 SE2d 63). Nor was there any fatal variance between the allegations and proof under the criteria adopted in DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801).

Decided July 13, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Desiree L. Sutton, Michael D. Thorpe, Assistant District Attorneys, for appellee.

2. Defendant also enumerates as error the trial court’s refusal to charge the jury on criminal trespass as a lesser included offense. However, the evidence fails to raise any issue that defendant may be guilty only of the lesser crime. There is no evidence that defendant entered upon the premises of another for any unlawful purposé other than to commit the offense of “peeping Tom.” Therefore, defendant was either innocent or guilty of the offense charged. This enumeration of error lacks merit. Roman v. State, 185 Ga. App. 32, 34 (3), 35 (363 SE2d 329); Hernandez v. State, 182 Ga. App. 797, 801 (3) (357 SE2d 131).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0181.
    MACON-BIBB COUNTY HOSPITAL AUTHORITY v. CONTINENTAL INSURANCE COMPANY.
    (396 SE2d 50)
   Beasley, Judge.

Macon-Bibb County Hospital Authority (Medical Center) appeals from the grant of summary judgment to Continental Insurance Company in Continental’s declaratory judgment action on insurance coverage.

Several days after Cassandra Jenkins’ birth, she was moved to Medical Center for a transfusion because she suffered from high levels of bilirubin. An ambulance, covered by the Continental policy, was requested from Medical Center. The ambulance broke down before reaching Cassandra, and her transport was delayed for several hours awaiting another ambulance,

A suit on behalf of the infant was filed in Coffee County against Medical Center, Coffee General Hospital, Lifemark Hospital, Inc., and three doctors. It alleged generally that “[a]t all times material hereto, the Defendants, and each of them [including Medical Center] negligently failed to exercise reasonable care and skill commensurate with the standard of care practiced in the community at that time and under similar circumstances,” and included a physician’s affidavit pursuant to OCGA § 9-11-9.1,

Continental then sought a declaration in Bibb County that the event was not an insured event under its policy and, alternatively, that several exclusionary clauses applied.

Thereafter, Jenkins voluntarily dismissed her Coffee County complaint and a week later refiled a more detailed complaint in Fulton County, It alleged, with regard to Medical Center, that the ambulance was dispatched to Coffee County at 8:39 p.m but became disabled, “causing a delay of two hours while another ambulance was dispatched to replace the broken down ambulance. The Medical Center . . . failed to have another ambulance available to replace the first ambulance and failed to call- Coffee County General Hospital for that hospital to initiate emergency transfer procedures . . . ,” and that Medical Center’s negligent failure to maintain the fleet of ambulances and to maintain a backup ambulance was a proximate cause of the seizure.

Relevant portions of the Continental comprehensive business policy are: “[W]e will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance, or use of a covered auto , . . [Continental has] no duty to defend suits for bodily injury . . . not covered by this endorsement.”

Two endorsements preclude coverage due to “rendering or failure to render any medical, surgical, dental, x-ray or nursing service or treatment.”

The court granted Continental’s motion for summary judgment, concluding that no claim was asserted which was covered and no clause of the policy could be construed to provide coverage.

1. The first two enumerations allege error in this grant and in the denial of Medical Center’s similar motion on the coverage issue.

The legal issue, distilled to its essence and viewing the evidence in favor of respondent Medical Center, is whether ordinary negligence in maintaining a vehicle which then breaks down, delaying transport and treatment of a patient waiting for the insured ambulance, but never transported in it, is covered by the policy.

First, we agree with appellant that the medical malpractice and professional services exclusions do not apply to this case. We move then to the automobile provision. In both instances, they are clear and plain in the context of this lawsuit.

“The words used in policies of insurance, as in all other contracts, bear their usual and common significance [OCGA § 13-2-2], and policies of insurance are, as all other contracts, to be construed in their ordinary meaning. In construing contracts, “The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.” [OCGA § 13-2-3]. “The contract of insurance should be construed so as to carry out the true intention of the parties.” [OCGA § 33-24-16] . . . “where it is susceptible of two constructions, that construction will be adopted that is most favorable to the insured . . . [the parties’] rights are to be determined by its terms so far as they are lawful, and the language of the contract should be construed in its entirety, and should receive a reasonable construction and not be extended beyond what is fairly within its plain terms; and where the language fixing the extent of the liability of the insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made.” [Cits.]’ [Cit.]” Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 398 (94 SE2d 765) (1956). See also Fidelity &c. Co. of Md. v. Sun Life Ins. Co., 174 Ga. App. 258, 260 (1) (329 SE2d 517) (1985).

There is no Georgia authority on the issue of delay of an ambulance, but Employers’ Commercial Union Ins. Co. v. Danches, 311 S2d 758, 759 (1 & 2) (Fla. Dist. Ct. of App. 1975) is persuasive: “The policy require[s] two conditions: accident and use. We hold that mere delay by a driver of a motor vehicle will not occasion liability under a policy which also requires an accident to have occurred prior to liability attaching.” Danches’ decedent, the patient injured, was in the insured ambulance during the delay. The present case is one step removed.

To otherwise construe the policy would lead to a bizarre result: a patient who is mistreated in an insured ambulance while being transported would be denied coverage due to the professional malpractice exclusion, see Newman v. St. Paul Fire &c. Ins. Co., 456 S2d 40, 41 (1) (Ala. Sup. Ct. 1984), but a patient who never entered the ambulance and whose treatment was delayed, with consequent damages, would be covered. Put another way, non-use or lack of availability for use would be covered, when complainant alleges, as she must, that the injuries and damages arose out of the use and operation of the vehicle.

Decided July 3, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

Joseph W. Popper, Jr., Sell & Melton, Richard B. Miller, Kenneth B. Banks, for appellant.

Jones, Cork & Miller, Wallace Miller III, Daniel Bullard IV, for appellee.

The trial court did not err in concluding that this policy did not cover the alleged negligence.

2. Medical Center also contends that Continental breached its duty to defend, even given an ultimate legal ruling of non-coverage. It says that the “true facts,” despite its allegations of medical malpractice in the Coffee County complaint, would provide coverage.

Although depositions are referred to by Medical Center as supporting its contentions, none is contained in the record below or before this court. Thus these allegations may not be considered insofar as the depositions might be concerned. Ekstedt v. Charter Med. Corp., 192 Ga. App. 248, 249 (2) (384 SE2d 276) (1989).

Nevertheless, “[t] he duty of an insurer to defend its insured is determined by the contract of insurance. Great American Ins. Co. v. McKemie, 244 Ga. 84, 85 (259 SE2d 39). ... To determine whether a claim (even a groundless claim) is covered by the policy, we must look to the allegations of the complaint. [Id.]” Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 610 (373 SE2d 671) (1988).

Having done so in both lawsuits, we hold that Continental appropriately declined to defend Medical Center.

Judgment affirmed.

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


author:
Pope, Judge.
      Beasley, Judge, Deen, Presiding Judge,

text:
    A90A0188.
    JOHN D. ROBINSON CORPORATION v. SOUTHERN MARINE & INDUSTRIAL SUPPLY COMPANY et al.
    (395 SE2d 837)
   Pope, Judge.

Southern Marine & Industrial Supply Company and Neff McIntosh (who owned Southern Marine) commenced this libel action against defendant John D. Robinson Corporation, a business competitor, for letters written by John Carellas, an employee of defendant who formerly worked for Southern Marine. The jury awarded Southern Marine $250,000 actual damages, and McIntosh $1,000 actual damages along with $225,000 punitive damages. This appeal followed.

One of the letters, mailed to ATPAC, a Greek agent for ship suppliers, contained the following:

“I am sorry I had to write you this letter and let you know that I am no longer working for Southern Marine Supply Co. The reason is that since Mr. Ford sold the company two (2) years ago, the new owners are Neff McIntosh and family. They knew nothing of the Ship Chandlery business.
“This company is not the same Southern Marine Supply Co. as you knew it in the past. It is altogether different. After fourteen (14) years working, I was sales manager for the new owners. They do not know how to supply the Greek ships properly. I was the only one who supplied the Greek ships properly. I was the only one who supplied the Greek ships personally for Southern Marine Supply Co. for all of the fourteen (14) years that I worked there.
“Last spring, when Neff McIntosh went to Sweden, Norway and London, England, I asked Mr. McIntosh to visit Greece and meet with the ship owners of ATPAC. He refused and said he did not want to see the Greeks.
“I was unhappy with the new owners, so I left Southern Marine Supply Co. and went to work for John D. Robinson Corporation, a good Ship Chandler in Savannah. I will be able to do the same as Southern Marine Supply Co. for your services.
“I have engaged the services of ATPAC in London for my new company. Southern Marine Supply Co. would not use the services of ATPAC in London but preferred using C. R. Knight as their agent. I am sure that if C. R. Knight were in Greece, ATPAC would not have Southern Marine Supply Co.’s business.
“The new owners do want the Greek ship business because they buy good. Again, I am sorry to write you this letter, but I feel like you should know about the new owners. I talked to Mr. Ford, the old owner, about this condition and he was surprised at the way they are trying to run the Ship Chandlery business.
“Hoping to hear from you in the near future. I remain yours truly,
John B. Carellas
JOHN D. ROBINSON CORP.”

The letter to ATPAC was dated February 13, 1985. A member of ATPAC brought it to the attention of an agent for Southern Marine by mailing him a copy of the letter. Evidence was presented that a shorter version of the letter was also sent to fourteen other Greek ship owners.

1. To be actionable as libel, a statement must be false, malicious and injurious. OCGA § 51-5-1. The evidence in this case was sufficient to create an issue for the jury as to all three elements of libel and thus the trial court did not err in denying defendant’s motion for directed verdict or motion for judgment notwithstanding the verdict.

The letter at issue went far beyond merely expressing an opinion that John D. Robinson Corporation could provide better services than Southern Marine. Evidence was presented that several statements of purported fact were false. First, the author of the letter states, “[The new owner] knew nothing of the Ship Chandlery business.” Evidence was presented that the former owner trained the new owner in the operation of the business and, at the time the letter was written, the new owner had been president of Southern Marine for two years. The owner of John D. Robinson Corporation admitted the statement that Southern Marine’s owner knew nothing about the business was not correct. The author also states “I was the only one who supplied the Greek ships personally for Southern Marine Supply Co. for all of the fourteen (14) years that I worked there.” The evidence shows that both before and after the change of ownership in the company, others besides the author supplied Greek ships. Finally, the author states “I talked to Mr. Ford, the old owner, . . . and he was surprised at the way [the new owners] are trying to run the Ship Chandlery business.” At trial Mr. Ford denied making the statement and testified he did not agree with the remarks made in the letter.

Evidence was also presented from which the jury could conclude that the author of the letter was motivated by malice toward his former employer. Moreover, “[a]s to proof of malice, proof that the writing is false, and that it maligns the private character or mercantile standing of another, is itself evidence of legal malice. [Cits.]” Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 717 (206 SE2d 631) (1974). Evidence was presented to show Southern Marine’s business had been injured by the letter. Statements which tend to injure one in his trade, occupation or business are libelous per se. Walker v. Sheehan, 80 Ga. App. 606 (2) (56 SE2d 628) (1949). At the least the issue of whether the words used were defamatory was subject to more than one interpretation and thus was an issue for jury determination. Southern Bell Tel. &c. Co. v. Coastal Transmission Svc., 167 Ga. App. 611 (2a) (307 SE2d 83) (1983). Thus, defendant was not entitled to directed verdict.

2. Defendant also argues it is entitled to judgment on the ground that no evidence was presented that any recipient read the letters in question or that its meaning was understood by the readers to impugn the reputation of the plaintiffs. First we note that defendant never argued this ground in making its motions. “A motion for directed verdict shall state the specific grounds therefor.” OCGA § Sill-50 (a). Secondly, evidence was presented that a client of Southern Marine who was a member of ATP AC, the addressee of Carellas’ February 13 letter, forwarded a copy of the letter to an agent of Southern Marine and told the agent he thought he would be interested in knowing he had received a “crazy” letter from Carellas that said bad things about McIntosh and Southern Marine. Thus, circumstantial evidence was presented to show the letter had been received and interpreted derogatorily.

3. Neither is defendant entitled to judgment in its favor on the ground that the employer had no knowledge of the contents of the letters written by employee Carellas before they were mailed. Defendant was liable to plaintiffs for the libelous statements of its employee under the rule of respondeat superior. Ray v. Henco Electronics, 156 Ga. App. 394 (274 SE2d 602) (1980), cited by the defendant, is distinguishable because the employer in that case was not held liable for the libelous remarks of the employee because those remarks were not published to a third party. The opinion notes that the rule of respondeat superior is generally applicable in libel cases. Id. at (1). Even the malicious intent of the employee is imputable to the employer in a libel case. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (4c) (60 SE2d 802) (1950).

4. Defendant argues the award to plaintiff McIntosh of $225,000 in punitive damages, when only $1,000 was awarded him for actual damages, was excessive and in violation of the prohibition against excessive fines of the Eighth Amendment to the United States Constitution and the Due Process Clause of the Fourteenth Amendment. “There is no merit to [defendant’s] contention that an award of punitive damages violates the excessive fines clause of the Eighth Amendment to the United States Constitution. [See] Browning-Ferris Industries of Vermont, Inc. v. Kelso, 492 U. S. _ [109 SC 2909, 106 LE2d 219].” Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (3) (386 SE2d 120) (1989). This State’s statutory scheme providing for the award of punitive damages based on the “enlightened conscience of the jury” which is checked and balanced by the general standard of review of damages awards set out in OCGA § 51-12-12 and OCGA § 5-5-20 does not deny due process or provide inadequate procedural safeguards for imposition of punitive damages. Id. at (5).

As in Hospital Auth. of Gwinnett County, we hold the award in this case is not excessive as a matter of law. Statements which tend to injure one in his trade or business are libelous per se. Walker v. Sheehan, 80 Ga. App. 606. Where, as here, evidence was presented from which the jury could find libel per se, the plaintiff may recover general damages without a showing of special damages. See Weatherholt v. Howard, 143 Ga. 41 (84 SE 119) (1915). Here, the jury awarded Mr. McIntosh general damages of $1,000. The award of punitive damages need not bear a relationship to the award of actual damages because punitives in this case were not awarded to compensate for wounded feelings but to deter future conduct. “A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury.” Hospital Auth. of Gwinnett County, supra at 762. Because evidence was presented from which the jury could find defendant’s employee acted with malicious intent, we do not conclude that the award of $225,000 in punitive damages is inordinately large or “may be set aside as reflecting undue passion and prejudice rather than an enlightened conscience . . . .’’Id. at n. 9.

5. We reject defendant’s argument that the verdict of $250,000 actual damages to plaintiff Southern Marine, with no award of punitive damages, is inconsistent with the award of $1,000 actual damages and $225,000 in punitive damages to plaintiff McIntosh. This is not a case in which one plaintiff was awarded damages but the other was not. Cf. Groover v. Dickey, 173 Ga. App. 73 (325 SE2d 617) (1984). The verdicts in this case were not self-contradictory because both plaintiffs were awarded damages. The verdicts were not inconsistent with each other and do not manifest that the jury reached conflicting opinions on the same evidence or the same witnesses. Cf. Bagwell v. Sportsman Camping Centers, 130 Ga. App. 888 (204 SE2d 794) (1974), on appeal after remand for retrial, 140 Ga. App. 312 (231 SE2d 118) (1976). Indeed, the verdict demonstrates that the jury understood the economic loss was sustained by the corporation while only general damage to reputation was sustained by the individual plaintiff. Nevertheless, the verdict indicates the jury found sufficient evidence of malicious intent to impose punitive damages against defendant to deter future conduct.

6. The trial court did not err in admitting the list of fourteen shipping companies to which letters were sent. Defendant’s president admitted in his testimony that the list was produced to plaintiffs and plaintiffs’ attorney during the pre-trial discovery period as the list of companies to which Carellas sent the shorter version of his letter.

7. We reject defendant’s argument that the trial court erred in permitting plaintiff McIntosh and plaintiffs’ expert witness to testify as to damages from lost profits because such damages were too remote and speculative. Here, evidence was presented that Carellas acted maliciously with the intent to deprive plaintiff of the profits from doing business with Greek shipping clients. “When a tort is committed . . . with knowledge and for the purpose of depriving the plaintiff of certain contemplated benefits, the remote damages occasioned thereby become a proper subject for the consideration of the jury.” OCGA § 51-12-10. Here, testimony concerning lost profits did take into consideration the reasonably expected expenses of prospective business in that both witnesses testified that because general overhead expenses of the company were already being met, the plaintiff company could expect at least as great a profit margin on lost sales as it was making on actual sales. Cf. Bennett v. Smith, 152 Ga. App. 841 (264 SE2d 233) (1979). Defendant argues that the witnesses’ assumption that, but for the letter, ship owners would have continued to buy from Southern Marine after the letter as before the letter is purely speculative. However, this issue did not disqualify the testimony but was merely a matter of credibility on which defendant had ample opportunity to discredit the witnesses on cross-examination. Moreover, defendant moved to strike all the testimony as to calculation of special damages on the ground it was speculative. An objection to strike evidence in its entirety without separating the admissible from the inadmissible portion is too broad and the trial court does not err in denying such a motion. See Mark Inn v. Dept. of Transp., 174 Ga. App. 420 (1) (330 SE2d 134) (1985).

8. We reject defendant’s argument that the trial court erred in permitting plaintiffs’ expert witness to respond to an improper hypothetical question posed by plaintiffs’ attorney because it contained information and assumptions of fact not in evidence. The record shows the trial court did strike the testimony given in response to the objectionable question and instructed the jury to disregard the answer. No objection was made by defendant to the reframed question posed by plaintiffs’ attorney or the witnesses’ response to it.

9. Defendant’s attorney asked plaintiffs’ expert witness whether it was his opinion that the damages he had calculated were caused by the writing of one letter. The court properly sustained plaintiffs’ objection to the question because the evidence showed fourteen other companies had received letters similar to the one written to ATP AC.

10. We find no error in the charge instructing the jury on the obligations imposed by federal law on Southern Marine for paying profit-sharing plan benefits to resigning employees. The legal duties and obligations for payment of benefits related to the justifiability of actions taken by Southern Marine when Carellas resigned and to the evidence of malice or hostility held by Carellas against Southern Marine.

11. We find no error in the trial court’s charge on the standard for recovering lost profits or in the charge, based on OCGA § 51-12-10, that even damages otherwise too remote to recover may be recovered where a tort is committed for the purpose of depriving the plaintiff of such benefits.

12. Where, as here, the jury was given complete and accurate instructions as to the credibility of witnesses, the trial judge did not err in refusing to give the requested charge that the jury may disregard the plaintiffs’ evidence if it believes the evidence is magnified or exaggerated. See Brewer v. Henson, 96 Ga. App. 501 (5) (100 SE2d 661) (1957).

13. The defendant was not entitled to judgment on the issue of punitive damages. Ample evidence of aggravated circumstances and malicious intent was presented to permit a recovery of punitive damages pursuant to OCGA § 51-12-5.

14. We do find error, however, in the charge to the jury. The trial court charged the jury, “Should you find by a preponderance of the evidence that John Carellas read orally on the telephone or otherwise the alleged libelous charges about the Plaintiff contained in his letters to ATP AC and other Greek shipping companies, you may find that these oral statements constituted libel.” The charge was correctly based on the rule that “oral communication of a written defamation constitutes libel.” Garren v. Southland Corp., 235 Ga. 784, 787 (221 SE2d 571) (1976). However, we agree with defendant that insufficient evidence was presented to show Carellas had repeated the libelous statements of his letters over the telephone. The record contains no probative evidence of any oral communication of the written defamation, but only mere speculation that such communications occurred. The inapplicable charge did not assume that the evidence showed oral communication, but instructed the jury what law to apply if it found by a preponderance of the evidence that such communication was made. However, while the trial court’s charge in the instant case correctly made no assumption that the evidence did show any oral communications of a written defamation, the trial court nevertheless erred in charging on that issue because there was no probative evidence from which the jury would have been authorized to find that such oral communications had occurred. An inapplicable charge, even though it is a proper statement of the law, may still constitute harmful error. See Ross v. State, 194 Ga. 514, 515 (22 SE2d 148) (1942).

A determination of whether an inapplicable charge had a harmful effect in a given case is not dependent upon phraseology, but upon whether it is likely that the inapplicable charge misled the jury and affected the verdict. Service Wholesale Co. v. Reese, 91 Ga. App. 366, 368 (3) (85 SE2d 625) (1955). By giving a charge on an inapplicable principle of law, the trial court can mislead the jury into the erroneous belief that it would be authorized, under the evidence, to find the facts to which that inapplicable charge refers and to return its verdict based upon a legal theory that is, in reality, not supported by the evidence of record. Thus, by instructing the jury on the issue of oral communication of a written defamation if it found that such communications occurred, the trial court implicitly instructed the jury that it would be authorized to find that such communications had occurred, and the question to be resolved is whether this inapplicable charge was likely to have misled the jury and affected the verdict. “Instructions inapplicable to the pleadings and the evidence should not be given to the jury; and where such instructions submit to the jury an issue and a theory not supported by the pleadings and evidence, a new trial will be granted.” Hand v. Matthews, 153 Ga. 75 (3) (111 SE 408) (1921). “[I]f by the instructions the jury might reasonably be drawn away from the true issues in dispute to the prejudice of parties, the giving in charge of such inapplicable principles would be reversible error ([cits.]) . . . .” Commercial Bank of Jasper v. Dasher, 24 Ga. App. 736 (102 SE 177) (1919). “[A]n instruction as to the law on a material issue which is unauthorized by the evidence is improper, and, if it is not apparent that the jury could not have been misled thereby, it is cause for a new trial. [Cits.]” Atlantic Coast Line R. Co. v. Strickland, 87 Ga. App. 596, 613 (5) (74 SE2d 897) (1953).

It is not apparent that the jury in the instant case could not have been misled by the inapplicable charge on oral communication of a written defamation. The inapplicable charge could have misled the jury as to both liability and damages. For example, it is possible that the jury may have found that the written defamations were otherwise privileged, but nevertheless returned its verdict based upon a determination that the purported oral defamations demonstrated malicious use of the privilege. On the other hand, absent the erroneous instruction, the jury might have found that, although liability arose from the written defamations, a recovery of punitive damages was not authorized. In other words, if the trial court had not charged on the oral communication of a written defamation, the jury might have found that there was no liability for the. written defamations or that the written defamations warranted a lesser recovery of damages. The trial court did, however, give the inapplicable charge and, if the verdict that was returned in the instant case was based upon the jury’s consideration of the oral communication of a written defamation, then the verdict was prejudicedly affected by the inapplicable charge. Thus, a new trial is warranted. See Atlantic Coast Line R. Co. v. Strickland, supra at 613 (5).

Judgment reversed.

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

Beasley, Judge,

concurring in part and dissenting in part.

I concur in all except Division 14. The error in the instructions does not require a retrial because of the high improbability of its misleading the jury. The jury had all of the evidence before it and could see as well as, if not better than, we can that there was no evidence of oral communication of the defamation over the phone. That makes the charge of no significant account.

The judge did not intimate that there was such evidence, but only gave an instruction with regard to what to do if there was. He specifically reminded the jury that such a showing would have to be by a preponderance of the evidence. This affirmed the general charge,, which clearly and unambiguously counseled on plaintiffs’ burden of proof, the meaning of which the court had carefully explained.

The court had also instructed about the nature of evidence and cautioned against employing unfounded inferences or speculation. In its charge it stated: “You’re dealing solely in this case at this time with the question of libel . . . should you find the letters were not libels or they were privileged, the Defendant is entitled to a verdict in the case.” The part of the charge objected to which is quoted in the majority opinion as beginning “[S]hould you find . . .” was preceded by: “All written communication or written defamation constitutes libel, therefore, ...” Written libel was explained and attention was drawn repeatedly to “letters.”

Pivotal is that the primary issue was whether the content of the communication was libelous, not whether the letters were published through the mail. Had the latter been seriously in doubt, then whether there was publication by telephone could have been crucial. But not otherwise.

That the jury was almost assuredly not misled into an unevidenced operative finding is demonstrated by its questions after just twenty-five minutes of deliberation. The inquiries focused on the contents of the written communication, damages, and the definition of libel. Further deliberations took about an hour and twenty minutes.

A consideration of these circumstances and context, and the court’s comprehensive charge after the lengthy trial, together with the jury’s attention to the evidence that was presented, leads to the legal conclusion that the error does not require reversal of the judgment and verdict and the granting of a new trial. Davis v. Davis, 211 Ga. 714 (88 SE2d 377) (1955); Scholle Atlanta Corp. v. Nealy, 110 Ga. App. 775, 778 (140 SE2d 88) (1964).

Deen, Presiding Judge,

dissenting.

OCGA § 51-5-1 (a) defines a libel as “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” “ ‘ “A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So the whole item . . . should be read and construed together, and its meaning and signification thus determined. When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not.” ’ ” Fiske v. Stockton, 171 Ga. App. 601, 602 (320 SE2d 590) (1984).

Decided June 18, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

Clark & Clark, Fred S. Clark, for appellant.

Bouhan, Williams & Levy, M. Brice Ladson, Wilbur D. Owens III, Walter C. Hartridge, for appellees.

The Carellas letter reasonably bears but one interpretation, i.e., that it is merely a letter soliciting business, expressing an opinion that the appellant company could provide better service than the competitor appellees. The letter was not libelous as defined by OCGA § 51-5-1 (a), and the trial court should have directed a verdict for the appellant. Accordingly, I must respectfully dissent from the majority opinion’s opposite conclusion.

       The evidence showed the author of the letters, John Carellas, exhibited anger and resentment against plaintiff McIntosh when Carellas resigned from his job at Southern Marine. Plaintiff McIntosh testified Carellas physically threatened him on board a Greek ship when Carellas boarded the ship in hopes of making a sale of supplies for his new employer when Carellas discoverd McIntosh was already on board servicing the ship.


author: Banke, Presiding Judge.

text:
    A90A0358.
    JACOBSEN v. BOYLE.
    (397 SE2d 1)
   Banke, Presiding Judge.

This is an appeal by the plaintiff from a grant of summary judgment to one of two co-defendants in a legal malpractice action.

The appellant’s job with a former employer was terminated in 1983; and in connection with that event, the former employer retained a firm known as Drake Beam Morin, Inc., (DBM), to provide the appellant with career counseling services. The career counselor assigned to the appellant by DBM was John Muller, who held a Ph.D. in applied psychology. The appellant and Muller developed a sexually intimate relationship during the course of their counseling sessions; and after that relationship ended, the appellant retained the appellee herein, attorney Thomas M. Boyle III, to bring an action for actual and punitive damages against Muller and DBM for breach of contract and professional malpractice. Boyle subsequently turned the case over to another attorney, Glenville Haldi; and both DBM and Muller were ultimately awarded summary judgment in the action. This court affirmed that ruling in Jacobsen v. Muller, 181 Ga. App. 382 (352 SE2d 604) (1986) (cert, den.), concluding “that [the appellant] condoned the breach of contract, if any, and assumed the risk of the tort, if any, committed when Muller deviated from accepted professional standards of a job counselor and used the professional relationship to create and foster an illicit personal relationship with the client.” Id. at 384.

The appellant subsequently brought the present action against Boyle and Haldi based on allegations that they could have defeated the defendants’ summary judgment motion in the prior action by submitting expert testimony on the “transference phenomenon,” a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make. The appellant contends that it could have been established through such expert testimony that a psychotherapist who becomes involved in a sexual relationship with a patient through manipulation of the transference phenomenon does so to the detriment of the patient’s mental and emotional well-being and therefore commits malpractice. The trial court, however, concluded that the appellant could not have prevailed in her action against Muller and DBM even had expert testimony on the transference phenomenon been submitted, because “Georgia law has not recognized the transference phenomenon as negating consent in a situation similar to the instant case [but] only when there has been a deprivation of the plaintiff’s free will and the sexual relationship at issue is part of the treatment given the plaintiff.” (Emphasis from lower court’s order.) Held:

In reaching the conclusion that a psychotherapist may engage in sexual relations with a patient without incurring liability for malpractice so long as the sexual activity is not “part of the treatment given the plaintiff,” the lower court relied on Presiding Judge Deen’s special concurrence to that effect in Jacobsen v. Muller, supra, as well as on this court’s decision in St. Paul Fire &c. Ins. Co. v. Mitchell, 164 Ga. App. 215 (296 SE2d 126) (1982), holding that a malpractice insurer was required to defend a suit filed against a psychiatrist by a former patient which was predicated on allegations quite similar to those advanced by the appellant in the present case. However, Judge Deen’s special concurrence in Jacobsen v. Muller cannot be considered controlling authority since it was not adopted by the other members of the court; and we do not interpret the majority decision in Mitchell as holding that, for a psychotherapist to be held liable for malpractice for having sexual relations with a patient, he must have represented to the patient that the sexual activity was part of her treatment. Indeed, there does not appear to have been any allegation in Mitchell that the defendant psychiatrist had made any such representations to the patient in that case. Rather, it appears that, like the appellant in the case before us, the patient there simply alleged that the defendant had manipulated the transference phenomenon to encourage her feelings of affection towards him. In deciding Mitchell, this court did rely upon a Michigan case, Cotton v. Kambly, 101 Mich. App. 537 (300 NW2d 627) (1980), in which the therapist had allegedly represented to the patient that the sexual activity was part of her treatment; however, there is ample authority from other jurisdictions for the proposition that a psychotherapist can commit malpractice simply by allowing the transference phenomenon to lead to sexual involvement with a patient. See, e.g., Simmons v. United States, 805 F2d 1363 (9th Cir. 1986); St. Paul Fire &c. Ins. Co. v. Love, 447 NW2d 5 (Minn. App. 1989); L. L. v. Medical Protective Co., 362 NW2d 174 (Wis. App. 1984). Indeed, in Mazza v. Huffaker, 300 SE2d 833 (N.C. App. 1983), a psychiatrist was held liable for malpractice for entering into a sexual relationship with a patient’s spouse.

While it is apparent that the appellant’s original purpose in consulting Muller was to obtain vocational guidance counseling rather than to obtain psychotherapeutic treatment for a mental or emotional problem, there is evidence that Muller, acting in his capacity as a licensed, practicing psychologist (see OCGA § 43-39-1 (2)), solicited and assumed the role of a psychotherapist during the course of their counseling sessions, explaining to the appellant that “he would assist her in analyzing and assessing her assets and ascertaining job and career direction by concentrating on her psychological make-up.” Jacobsen v. Muller, supra, 181 Ga. App. at 386 (Deen, P. J., concurring specially). As we believe such evidence would permit the inference that a patient-psychotherapist relationship existed between them, we must conclude, on the basis of the foregoing authorities, that expert testimony as to the existence and operation of the transference phenomenon would have been relevant and admissible in the appellant’s original action against Muller and DBM as evidence that she did not enter freely and willingly into sexual relations with Muller and thus did not consent to or condone his alleged professional malpractice. Accordingly, we reverse the grant of summary judgment to the appellee in the present action on the ground that it was predicated on an erroneous legal theory. While we note that the appellee additionally sought summary judgment on the ground that he was no longer representing the appellant at the time the alleged legal malpractice occurred, we express no opinion as to whether summary judgment might properly have been granted on that ground, inasmuch as the trial court did not rule on that issue and it has not been argued to us on appeal as an alternative basis for sustaining the trial court’s ruling.

Decided June 29, 1990.

Rehearing denied July 16, 1990 — Cert, applied for.

Thomas E. Maddox, Jr., for appellant.

Freeman & Hawkins, H. Lane Young II, Joseph A. Roseborough, Glenville Haldi, for appellee.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A90A0401.
    ARNALL INSURANCE AGENCY, INC. v. ARNALL.
    (396 SE2d 257)
   McMurray, Presiding Judge.

Plaintiff Arnall Insurance Agency, Inc., brought suit against defendant Guy C. Arnall in the Superior Court of Coweta County. The complaint, as amended, was couched in six counts. We are only concerned in this appeal with Count 1 of the complaint in which plaintiff seeks damages for the alleged breach of a restrictive covenant contained in an employment agreement. The superior court agreed with defendant that the restrictive covenant is unenforceable. Accordingly, it granted defendant’s motion for summary judgment upon Count 1 of the complaint.

Defendant and Newnan Federal Savings & Loan Association (“Newnan Federal”) entered into the employment agreement on January 1, 1983. In a preamble, the employment agreement recites: “WHEREAS, a service corporation of Newnan Federal simultaneously with the execution of this Agreement is acquiring the general insurance business that has heretofore been operated by the Hamilton C. Arnall Insurance Agency (hereinafter referred to as the ‘Agency’); and WHEREAS, Arnall is a licensed insurance agent and has heretofore been one of the two general partners and principal managers of the Agency; and, WHEREAS, Newnan Federal needs Arnall’s experience and expertise in operating the business that has heretofore been conducted by the Agency and desires to employ him to act in a managerial capacity with the insurance business that has heretofore been operated by the Agency . . . and, WHEREAS, Arnall desires to be employed in such capacity; NOW THEREFORE, the parties hereto in consideration of the mutual covenants herein contained, agree as follows . . .” The employment agreement went on to set forth the terms and conditions of defendant’s employment.

For summary judgment purposes the parties stipulated that the restrictive covenant in the employment agreement reads, in part, as follows: “Arnall hereby agrees that so long as this Agreement is in force, and for a period of two (2) years thereafter, unless neither Newnan Federal nor any subsidiary or affiliated organization or entity shall be conducting a general insurance business, Arnall will not, unless acting as an officer or employee of Newnan Federal or any such subsidiary, service corporation or affiliated entities or corporation, their successors or assigns, without Newnan Federal’s prior written consent, directly or indirectly own, manage, operate, join, control or participate in, or be connected as an officer, employee, partner, stockholder, agent, representative or otherwise with, any business under any name similar to Hamilton C. Arnall Insurance Agency or Arnall Insurance Agency, and that for the same period he will not in any such manner directly or indirectly compete with or become interested in any competitor of Newnan Federal, its subsidiaries, service corporations, affiliated entities or corporations, their successors and assigns in the general insurance business (which shall include, without limitation, . . . life insurance, accident insurance, health insurance, medical insurance, property and casualty insurance, and surety bonds) within the geographical area of a 40-mile radius from the City of Newnan, Coweta County, Georgia (except for that area within the perimeter of Interstate Highway 285) other than as an investment in a publicly traded corporation. This restrictive covenant shall be in addition to, and not in lieu of, any other restrictive covenant that Arnall may execute in any other contract that Arnall may have with Newnan Federal, its subsidiaries, service corporations and affiliated entities and corporations, their successors and assigns. . . .” (Emphasis supplied.)

DFS Financial Corporation (“DFS”) purchased the Hamilton C. Arnall Insurance Agency from defendant Guy C. Arnall and R. Emory Holland pursuant to an Agreement of Purchase and Sale entered into on January 1; 1983. DFS was a service corporation of Newnan Federal which executed the purchase and sale agreement as a guarantor. The purchase and sale agreement also contains a restrictive covenant which reads, in part: “Each partner of Seller, by his signature hereto, agrees that... he will not, unless acting as an officer or an employee of Buyer, its successors and assigns, without Buyer’s prior written consent, directly or indirectly own, manage, operate, join, control, or participate in, or be connected as an officer, employee, partner, stockholder, agent, representative, or otherwise with, any business under any name similar to Seller’s name, and that for a period of five (5) years after the effective date hereof, he will not in any such manner directly or indirectly compete with, or become interested in any competitor of, Buyer, its successors and assigns in the general insurance business, (which shall include, without limitation, any business which shall render consultation or advice concerning insurance of any type or sell any insurance line at any time sold by Buyer, and including, without limitation, life insurance, accident insurance, health insurance, medical insurance, property and casualty insurance, and surety bonds) within the geographical area of a 40-mile radius from the City of Newnan, Coweta County, Georgia, (except for that area within the perimeter of Interstate Highway 285), other than as an investment in a publicly traded corporation. This restrictive covenant shall be in addition to, and not in lieu of, any other restrictive covenant that the partners of Seller may execute in any employment contract that said partners may have with Buyer, its successors and assigns. . . .”

Months after the execution of the employment agreement, Newnan Federal assigned the employment agreement to DFS which changed its name to Arnall Insurance Agency, Inc. Defendant worked for Arnall Insurance Agency, Inc., plaintiff, until February 1988. On or about March 1, 1988, defendant opened a competing insurance business and this suit followed. Held:

1. “Covenants against competition contained in employment contracts are considered in partial restraint of trade and are to be tolerated only if strictly limited in time and territorial effect and otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee. Orkin Exterminating Co. v. Dewberry, 204 Ga. 794 (51 SE2d 669) (1949); Rakestraw v. Lanier, 104 Ga. 188 (30 SE 735, 69 ASR 154) (1898). ‘Whether the restraints imposed by an employment contract are reasonable is a question of law for determination by the court.’ Taylor Freezer Sales Co. v. Sweden Freezer Eastern Corp, [224] Ga. 160, 162 (160 SE2d 356) (1968).” Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284, 285 (227 SE2d 251). If it is not limited with regard to either time, territory or scope of activity, the entire covenant fails. Georgia does not employ the “blue pencil theory of severability” when it comes to covenants contained in employment contracts. Richard P. Rita &c. Intl. v. Kot, 229 Ga. 314 (191 SE2d 79). Compare Jenkins v. Jenkins Irrigation, 244 Ga. 95 (259 SE2d 47), in which the “blue pencil theory of severability” was applied to a covenant contained in a sales agreement.

Regarding scope of activity, our courts have held restrictive covenants “unreasonable where the nature of the business activities in which the employee is forbidden to engage is not specified with particularity. See Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265) (1977); Southeastern Beverage &c. Co. v. Dillard, 233 Ga. 346 (211 SE2d 299) (1974); Dixie Bearings, Inc. v. Walker, 219 Ga. 353 (133 SE2d 338) (1963); Artistic Ornamental Iron Co. v. Wilkes, 213 Ga. 654 (100 SE2d 731) (1957). In the foregoing cases, restrictive covenants in which the employee was forbidden from engaging in any business or activity competitive with the business of the employer were struck down on the ground that the description of the prohibited activity was too indefinite to be enforced. See also Mason, Au & Magenheimer &c. Co. v. Jablin, 220 Ga. 344 (138 SE2d 660) (1964); Friedman v. Friedman, 209 Ga. 653 (74 SE2d 860) (1953).” Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 639 (261 SE2d 572).

In Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265) for example, a restrictive covenant contained in an employment agreement specified that the employee would not compete with the employer “ ‘directly or indirectly, as principal, agent, employer, employee, or in any capacity whatsoever . . .’ ” Id. at 182. Striking down the covenant, the Supreme Court held, inter alia: “[A] covenant wherein the employee agreed not to accept employment with a competitor ‘in any capacity’ imposes a greater limitation upon the employee than is necessary for the protection of the employer and therefore is unenforceable. [Cits.]” Id. at 184.

Likewise, in McNease v. Nat. Motor Club, 238 Ga. 53 (231 SE2d 58), the Supreme Court ruled a restrictive covenant in an employment agreement to be unenforceable because the limitation placed on the employee was larger than was necessary to protect the employer. The significance of McNease, in cases of this kind, is that, although the words “in any capacity” were not employed in the restrictive covenant, the court likened the covenant to an “in any capacity” covenant: “Under this clause of the contract the employee is in effect prohibited from working in any capacity for a competitor. . . .” (Emphasis supplied.) Id. at 56.

The McNease rationale was followed in Jarrett v. Hamilton, 179 Ga. App. 422 (346 SE2d 875). The restrictive covenant in Jarrett was similar to the one in the case sub judice in that it, too, employed the words “or otherwise.” The Jarrett covenant prohibited the employee from competing with the employer “ ‘directly or indirectly . . . either as an individual on his own or as a partner or joint venturer, or as an employee or agent for any person, or as an officer, director, or shareholder or otherwise . . .’ ” This Court held the covenant to be unenforceable, reasoning: “We find the words ‘or otherwise,’ climaxing a catalogue of specific prohibitions, to be the functional equivalent of the phrase ‘in any capacity’ employed by the court in McNease, supra, in testing the challenged provision for reasonableness.” Jarrett v. Hamilton, 179 Ga. App. 422, supra at 424.

In the case sub judice, we find the words “or otherwise,” following a list of proscribed activities, to be the “functional equivalent of the phrase ‘in any capacity’. . . Jarrett v. Hamilton, supra at 424. The words render the restrictive covenant unreasonable inasmuch as they limit the activities of defendant more than is necessary to protect the plaintiff. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, supra; McNease v. Nat. Motor Club, 238 Ga. 53, supra. It follows that the restrictive covenant is unenforceable.

Relying upon Watson v. Waffle House, 253 Ga. 671 (324 SE2d 175), plaintiff urges us to uphold the restrictive covenant. In this regard, plaintiff argues that, like the Watsons in Waffle House, the defendant was the “heart and soul” of plaintiff’s business. We cannot accept this argument. Simply put, Waffle House was not an “in any capacity case.” Id. at 673. Besides, the Watsons were not mere employees. They leased the business and operated it, participating in “every facet of the business.” They were the “heart and soul” of the business and their departure effectively brought the business to a standstill. Although, in the case sub judice, defendant was a major player in plaintiff’s business, he was, when all is said and done, an employee. Defendant’s departure may have hurt plaintiff; but it did not bring the business to a halt. It cannot be said, therefore, that defendant was the “heart and soul” of the business.

2. Taking the position that the restrictive covenant was entered into in connection with a sales agreement, and not as part of an employment contract, plaintiff urges us to apply the “blue pencil theory of severability” and to narrow the activities proscribed by the covenant in order to make them reasonable. Compare Jenkins v. Jenkins Irrigation, 244 Ga. 95, supra (“blue pencil” will be applied to a restrictive covenant contained in a sales agreement) with Richard P. Rita &c. Intl. v. Kot, 229 Ga. 314, supra, (“blue pencil” will not be applied to a restrictive covenant contained in an employment contract). This we cannot do.

In Watkins v. Avnet, Inc., 122 Ga. App. 474 (177 SE2d 582), Watkins was the president and majority stockholder of Southeastern Motor Products Company (“Southeastern Motor”). Avnet, Inc. (“Avnet”) purchased Southeastern Motor pursuant to an agreement with the corporation and its stockholders. On the same day that Avnet acquired Southeastern Motor, Watkins entered into a separate employment agreement with Fairmount Motor Products (“Fair-mount”), a division of Avnet, pursuant to which Watkins became the Branch Manager of the Southeastern Division of Fairmount. The employment agreement referred to the acquisition of Southeastern Motor by Avnet and contained a covenant not to compete. Watkins sought a declaration that the covenant was unenforceable. Determining that the covenant was contained in an employment contract and was not to be construed as part of a sales agreement, the court ruled: “Although the contract here involved is clearly related to the sale of a business, and in this sense involves only one aspect of a larger transaction, it is nonetheless a contract of employment, and must be construed under the rules applicable to the latter.” Watkins v. Avnet, Inc., 122 Ga. App. 474, supra at 476 (4).

In the case sub judice, as in Watkins, the employment contract is part of a larger transaction. (Indeed, as in Watkins, the employment contract makes reference to the sales agreement.) Nevertheless, we must construe the restrictive covenant contained in the employment contract as just that — a covenant contained in an employment contract. After all, the employment contract and the sales contract are separate documents between separate (albeit corporately related) parties and with separate subject matters. See Moran v. NAV Svcs., 189 Ga. App. 825, 826 (377 SE2d 909). Moreover, each contract contains its own restrictive covenant. If, as plaintiff contends, the restrictive covenant in the employment contract should be considered part and parcel of the sales contract, why was the restrictive covenant in the sales contract necessary? The answer lies in the restrictive covenants themselves. Each covenant points out that it is “in addition to, and not in lieu of,” the other. Thus, each covenant stands on its own. Each covenant is separate and complete.

3. Plaintiff claims the restrictive covenant in the employment agreement is enforceable because the complaint seeks damages, not injunctive relief, against defendant. More specifically, plaintiff argues that a restrictive covenant cannot be deemed to restrain trade in a suit for monetary damages only, because, in the absence of injunctive relief, defendant can go on working. We fail to see the logic in this argument. An employee will be deterred from competing with a former employer if he can be held liable for monetary damages. Thus, a restrictive covenant in an employment agreement restrains trade and must be deemed unenforceable whether a plaintiff seeks monetary damages or injunctive relief.

4. The superior court did not err in granting defendant’s motion for summary judgment upon Count 1 of the complaint.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

While I agree that the judgment in this case should be affirmed, I cannot join in the majority’s reasoning. Specifically, contrary to the majority’s conclusion, I believe that the original employment agreement containing the covenant not to compete was clearly made “in conjunction with” the sale of a business so as to trigger the “blue pencil” severability rule of Jenkins v. Jenkins Irrigation, 244 Ga. 95 (259 SE2d 47) (1979). However, that employment agreement expired three years from January 1, 1983, and the obligations of covenant continued for an additional period of two years. I find no probative evidence supporting a finding that there was a viable and enforceable renewal of the employment contract subsequent to its expiration. Accordingly, the covenants restricting appellee’s activity expired on January 1, 1988, Therefore, appellee’s operation of a competing insurance business commencing on or about March 1, 1988 would not be proscribed.

Decided June 26, 1990

Rehearing denied July 16, 1990 — Cert. applied for.

Glover & Davis, J. Littleton Glover, Jr., Delia T. Crouch, C. Jerry Willis, for appellant.

Arnall, Golden & Gregory, Charles L. Gregory, Sanders, Mottola, Haugen & Mann, Willis G. Haugen, for appellee.

       Actually, the restrictive covenant in the employment agreement reads, in part: “Arnall hereby agrees that so long as this agreement is in force, and for a period of two years thereafter, unless either Newnan Federal or any subsidiary or affiliated organization or entity shall be conducting a general insurance business . . .” (Emphasis supplied.) Plaintiff seeks the reformation of this language in Count 6 of its complaint.


author: Pope, Judge. Deen, Presiding Judge,

text:
    A90A0417.
    A90A0418.
    PLANTATION AT LENOX UNIT OWNERS’ ASSOCIATION, INC. v. LEE. PERRY REALTY SERVICES, INC. v. LEE.
    (395 SE2d 817)
   Pope, Judge.

Plaintiff Maxwell R. Lee was severely injured when he struck his head against the bottom of the concrete swimming pool owned by defendant, the Owners’ Association of a condominium. A homeowner at the condominium had reserved the clubhouse belonging to defendant Association on behalf of a friend who was graduating from high school and who hosted a party at the clubhouse for her friends after their prom. The hostess, through her friend, the homeowner, paid a rental fee for the use of the clubhouse. The written rules governing rental of the clubhouse expressly excluded use of the swimming pool adjacent to the clubhouse. According to the permit from the Fulton County Health Department governing defendant’s operation of the pool, the pool could be operated from 9:00 a.m. to 9:00 p.m. The party in question did not commence until around 11:00 p.m. on May 23, 1987. The record shows that although the exterior fence to the swimming pool was locked, the door leading from the clubhouse to the pool was open and several of the guests attending the party congregated around or in the pool. No electric lights were on inside the pool or around the pool deck. Plaintiff described the light level around the pool as too dark to read a newspaper and such that he would have had to watch where he was going to avoid walking into deck furniture. During the party a security guard employed by the manager of the property arrived to investigate a complaint that the party goers were making too much noise. The guard could have seen guests in and around the pool but issued no warning about staying out of the pool area and failed to turn on the lights in and around the pool.

Plaintiff decided to go swimming and dived into the pool. He admitted the water was black and that he could not see the bottom of the pool. He had no idea which end of the pool he was diving into. He did not see anyone in the pool from which he could make a judgment as to depth. In fact, he admitted he saw nothing from which he could form a judgment as to the depth of the pool. Plaintiff struck his head against the bottom of the pool and sustained serious injuries leaving him permanently paralyzed from the chest down. Plaintiff brought suit against the Association, the real estate management company hired by the Association to manage the property and the company which provided security guards for the property. The trial court denied summary judgment to the Association and the management company and this court granted their applications for interlocutory appeal.

1. Although the homeowner who arranged for the rental of the clubhouse was an owner in common of all common property at the condominium complex, according to the rules of the Association it was necessary for him to lease the use of the clubhouse for a private party. Consequently, it can be said the homeowner was a “tenant” of the Association under the circumstances. The homeowner reserved the clubhouse for the use of his guest, the hostess of the prom party. Plaintiff was thus the guest of the guest of the tenant and therefore was an invitee, not a mere licensee, of the Association’s premises. See Paul v. Sharpe, 181 Ga. App. 443 (1) (352 SE2d 626) (1987). The duty owed by defendants to plaintiff was that of ordinary care to keep the premises safe, pursuant to OCGA § 51-3-1.

2. The issue raised by defendants’ motions for summary judgment is whether liability for defendants’ negligence, if any, was cut off because the proximate cause of plaintiff’s tragic injury was, as a matter of law, plaintiff’s own negligent failure to exercise ordinary care for his own safety. In most of the swimming pool cases addressed by this court to date the plaintiff was shown to have previous familiarity with the pool in question so that he knew or should have known of the depth of the water into which he was diving. See Sims v. Willoughby, 179 Ga. App. 2 (345 SE2d 626) (1986); Murphy v. D’Youville Condominium Assn., 175 Ga. App. 156 (333 SE2d 1) (1985); Davis v. LaRue Enterprises, 146 Ga. App. 516 (246 SE2d 515) (1978); Shuman v. Mashburn, 137 Ga. App. 231 (223 SE2d 268) (1976). An earlier case involved circumstances whereby the depth of the water was plainly visible if plaintiff had simply looked. See Day v. Trion Co., 56 Ga. App. 1 (192 SE 88) (1937). In these cases, the defendant was entitled to summary judgment. The case now before us is distinguishable from earlier cases since the plaintiff was not familiar with the pool and he testified that the depth of the water was not plainly visible because of the darkness of the pool and the surrounding area. Although the undisputed evidence shows that numerical markings were placed at the side of the pool indicating its depth to range from three to five feet, plaintiff and several of the other guests at the party gave sworn statements that they saw no such markings and, construing the evidence in favor of plaintiff, we must assume that a jury issue exists as to whether defendants’ failure to light the pool area negligently prevented plaintiff from seeing the markers.

The dissenting opinion concludes “we cannot” decide the issue of proximate cause as a matter of law because the facts of this case are analogous to the facts in George v. Brandychase, Ltd., Partnership, 841 F2d 1094 (11th Cir. 1988), in which the Eleventh Circuit Court of Appeals, construing Georgia law, held that an issue for jury determination existed as to whether an apartment complex owner was liable for plaintiff’s injuries in diving into the shallow end of a pool at night after the pool was supposed to have been closed and locked up. First, it must be noted that the analysis and holding of the George case is instructive only and is not binding on this court. Secondly, material factual distinctions exist between the two cases. In George, the pool deck area was partially lighted and two of four underwater lights were illuminated creating a “shadow effect” on the pool surface. The court held that the factual circumstances disclosed an issue “of whether an ordinarily prudent person would have reasonably apprehended the possibility of danger and thus exercised ordinary care to avoid its consequences.” Id. at 1097.

Here, by contrast, plaintiff testified the water was black, because of the darkness, and he could not see the bottom of the pool. He admitted he did not have any idea which end of the pool he was diving into. In contrast to the circumstances in the George case, in which the pool was partially lighted in such a way that its apparent depth was arguably distorted, here plaintiff admitted he saw nothing by which he could judge the depth of the pool. Under these circumstances, it cannot be said that failure to light the pool or any other negligent act or omission on the part of defendants contributed to plaintiff’s misjudgment or, more accurately, failure to judge the depth of the water before diving. Although a jury could reasonably find defendants were negligent in failing to prevent access to the pool or, having discovered that it was being used, failing to light the pool for the swimmers’ safety, we conclude this negligence could not, as a matter of law, be the proximate cause of plaintiff’s injury. To rule that a jury issue remains would be to assume that the maintenance of any swimming pool necessarily involves an invitation to dive in blind reliance on the safety of such an act without any duty of the actor to use his or her sight, experience or judgment in ordinary care for his own safety. In other words, because plaintiff admitted he relied on nothing to judge the safety of his act, to rule that an issue of negligence remains would be to ignore the Georgia doctrine of avoidable consequences. An owner of a swimming pool is not an insurer of its safety but is liable for injury only if its negligence was the proximate cause of the injury. Ward v. City of Millen, 162 Ga. App. 148 (290 SE2d 342) (1982). While proximate cause is generally an issue for the jury, in plain and undisputed cases the court may make a determination as a matter of law. Hercules, Inc. v. Lewis, 168 Ga. App. 688 (309 SE2d 865) (1983).

Plaintiff was over seventeen years old at the time the incident occurred and had extensive experience swimming in concrete pools. He admitted awareness that a swimmer could strike his head against the bottom of a pool and that a swimmer should be cautious when diving into the shallow end of a pool. He had previously injured his head on the bottom of a pool, although not by diving, but by playing underwater games. The evidence shows he comprehended the danger of diving into water of an unknown depth. Thus, it cannot be said that an issue remains for jury determination concerning whether defendants had a duty to warn plaintiff of the dangers inherent in diving into an unlighted swimming pool without knowledge of its depth. Cf. Coates v. Mulji Motor Inn, 178 Ga. App. 208 (342 SE2d 488) (1986).

We reject plaintiff’s argument that alleged violation of local building codes in the operation of the pool created an issue of fact to defeat defendants’ motion for summary judgment. As discussed above, failure to post warning signs, failure to lock the pool area or to illuminate the pool once it was discovered that swimmers were in the pool is not, as a matter of law, the proximate cause of plaintiff’s injury under the factual circumstances of this case.

Judgments reversed.

Carley, C. J., Banke, P. J., Sognier and Cooper, JJ., concur. Deen, P. J., and McMurray, P. J., dissent. Birdsong and Beasley, JJ., disqualified.

Deen, Presiding Judge,

dissenting.

The facts in this case are similar to those in George v. Brandychase, Ltd., Partnership, 841 F2d 1094 (11th Cir. 1988); therefore, we cannot conclude that as a matter of law the plaintiff/movant’s own negligence was the proximate cause of his injury, thereby barring his recovery. The proximate cause issue must go to the jury. This court erroneously determined these issues as a matter of law. The record is sufficient to establish that due to the shadows cast upon the pool by the partial lighting, it was difficult to ascertain the depth of the pool. The affidavits of several party goers in conjunction with the expert affidavit support this proposition. Although the plaintiff stated that he could not see the bottom of the pool, it was for the jury to decide whether his conduct superseded that of the defendants’ and thus was the proximate cause of his injury. We should affirm the trial court’s denial of this motion for summary judgment, and I respectfully dissent.

Decided May 24, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, for appellant (case no. A90A0417).

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Julie L. Ginden, for appellant (case no. A90A0418).

' Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this opinion.


author: Cooper, Judge.

text:
    A90A0499.
    JENKINS v. LANIGAN et al.
    (396 SE2d 28)
   Cooper, Judge.

Appellant sued appellees as a result of an automobile accident in which appellant’s wife was killed. Appellee Lanigan (“Lanigan”) was the driver of the car involved in the accident with appellant’s decedent, and appellee Prince (d/b/a Bubba’s) was the owner of a bar at which appellee Lanigan had allegedly been drinking prior to the accident. Lanigan carried a liability policy in the amount of $15,000, the statutory minimum and the decedent was insured under two policies with the Horace Mann Insurance Company (“Horace Mann”), both of which contained uninsured/under insured motorist coverage. Appellant’s policies subdivided the generic “uninsured motorist coverage” into two separate schedules of coverage, which were specified on the declarations page and defined in the policy. Schedule J covered uninsured motor vehicles and Schedule S provided coverage with respect to underinsured motor vehicles. A maximum coverage of $25,000 per person was provided under each schedule. Appellant alleges that separate premiums were paid for each schedule, however no evidence of this appears in the record. Appellant seeks to “stack” the coverages provided in the two schedules in each policy for a total coverage under both policies of $85,000 ($100,000 total coverage under both schedules of both policies less Lanigan’s $15,000 liability coverage). Horace Mann paid appellant under Schedule S of each policy for a total of $35,000 ($50,000 coverage under both policies less Lanigan’s $15,000 liability coverage), yet contested payment under Schedule J on the basis that Lanigan was an underinsured motorist as defined in the policy, not an uninsured motorist. Horace Mann filed a motion for summary judgment on the grounds that Lanigan could not simultaneously be underinsured and uninsured pursuant to the policy definitions and further, that Georgia law does not permit stacking within a single policy. The trial court’s grant of Horace Mann’s motion is the basis of this appeal by appellant. Appellee Prince, who was sued under the theory of dram shop liability, was not involved in the dispute over the uninsured motorist coverage.

1. Appellant’s policies define an underinsured motor vehicle as a vehicle with respect to which a bodily injury liability policy applies, but with a limit less than the limit of the policy. The definition then excludes a vehicle with such a policy less than the statutory requirement. An uninsured motor vehicle is defined as a vehicle with respect to which (i) there is no bodily injury or property damage liability policy in effect or (ii) there is a policy applicable but the company denies coverage, is insolvent or the limit of the vehicle’s policy is less than the limit of the insured’s policy but the vehicle will be considered uninsured only for the amount between the limit carried (of the vehicle’s policy) and the amount required. Lanigan’s vehicle clearly falls within the policy definition of an underinsured motor vehicle, and since the amount between the limit carried ($15,000) and the amount required by statute ($15,000) is zero, the Lanigan’s vehicle is not uninsured as defined in the policy. “The construction of [an insurance] contract is a matter of law for the court. . . . [Cit.] Where the language of a contract is plain and unambiguous, however, as we find it to be in the instant case, no construction is required or even permissible. [Cits.]” Jones v. Barnes, 170 Ga. App. 762, 765 (318 SE2d 164) (1984). Consequently, recovery is not proper under Schedule J.

Appellant’s argument that the inclusion of two separate schedules in the policies is in derogation of OCGA § 33-7-11 is without merit. The statute, which requires the provision of uninsured motorist coverage in all insurance policies, contains a broad definition of “uninsured motor vehicle.” This definition includes both the uninsured and underinsured definitions of the policies. Taken together, the two schedules provide all of the coverage and the amounts of coverage that is statutorily required in this state. “Under basic principles of contract law, it is axiomatic that, as long as the provisions of a given contract are in compliance with the requirements of governing statutes, the parties to the contract may include provisions different from . . . those prescribed in the statute or statutes.” Jones, supra at 764-765. That appellant may have paid separate premiums for the two schedules is of no import.

Decided June 28, 1990

Rehearing denied July 16, 1990 — Cert, applied for.

Clarence L. Martin, for appellant.

Brennan, Harris & Rominger, Richard A. Rominger, Albert E. Clark, Allen, Brown, Bruce & Dasher, Becky J. Dasher, Bouhan, Williams & Levy, Peter D. Muller, James M. Thomas, for appellees.

Appellant’s argument that payment of premiums for Schedule S and Schedule J entitled him to recover the combined coverage provided in the two schedules is inaccurate. Each schedule applied to distinct factual situations and provided separate coverages in consideration for the separate premiums paid.

2. Appellant’s contention that “stacking” of the two schedules in this case is allowed is likewise without merit. “As a general rule, there can be no stacking or pyramiding of the uninsured motorists provisions as to single policy coverage of automobiles. [Cits.]” Hartford Cas. Ins. Co. v. O’Callaghan, 176 Ga. App. 135, 136 (335 SE2d 407) (1985). Although stacking of multiple policies is allowed (State Farm &c. Ins. Co. v. Hancock, 164 Ga. App. 32 (295 SE2d 359) (1982)), the courts have consistently refused to stack within a single policy as to multiple vehicles covered. See cases cited in Hartford, supra at 136. Similarly, when, as here, only one schedule in a policy as to uninsured motorist coverage covers the circumstances involved, an insured cannot stack the two schedules. To allow otherwise would permit a double recovery by the insured. Accordingly, we find no error with the trial court’s grant of summary judgment to Horace Mann.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A90A0503.
    GRAHAM v. THE STATE.
    (396 SE2d 52)
   Pope, Judge.

Defendant Joe Graham, Jr., was charged with burglary and six counts of forgery in the first degree. He was convicted only on three counts of forgery. On appeal, he argues the evidence was insufficient to support the convictions. In particular he argues that the testimony of his alleged accomplice was not corroborated sufficiently. We affirm.

“In Georgia, the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty. [Cits.] However, where two or more accomplices testify at the trial of an accused, the testimony of one accomplice may be corroborated by the testimony of the other accomplice. [Cits.]” Eubanks v. State, 240 Ga. 544, 545 (242 SE2d 41) (1978). “Presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Since there was evidence that [Graham] associated [himself] in an unlawful enterprise, any act done in [pursuit] of the conspiracy by one of the conspirators is in legal contemplation the act of all and each is responsible for the acts of the other only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy. Thus, it is not necessary to present evidence of [Graham’s] actual participation in each phase of each crime in order to sustain the convictions.” (Citations and punctuation omitted.) Howard v. State, 181 Ga. App. 187 (351 SE2d 550) (1986).

The evidence at trial showed a scheme to forge and then cash checks stolen from Douglas Aluminum Foundry (DAF). At trial, Jerry Blackmon, who was indicted along with Graham but who entered a plea of guilty to the charges, testified against Graham. Blackmon testified he and Graham burglarized DAF and took from it a company checkbook and checkwriter. (This testimony was uncorroborated and the jury acquitted Graham on the burglary charge.) The two then went to the home of Hazel Lannett Pinson, Blackmon’s girl friend. According to Blackmon, Hazel Pinson and Graham took the checkbook and the checkwriter to a bedroom where they collaborated in forging checks, with Graham operating the checkwriter to imprint amounts on the checks and Hazel Pinson filling out the rest of the check. This event was corroborated at trial by the testimony of Hazel Pinson (who had entered a plea of guilty to second degree forgery) and her sister, Lillie Bell Pinson. Also corroborated by Hazel Pinson’s testimony was Blackmon’s account of how he and Graham borrowed Hazel Pinson’s white Nissan car and drove with her to a store on Smokey Road where they cashed one of the checks and then he and Graham divided the money. The clerk at the store testified that she cashed DAF check number 5800 (subject of Count 3 of the indictment for which Graham was convicted) on November 9, 1988 and that she saw a small white car parked outside. Hazel Pinson also testified that before they left to go to the store on Smokey Road, Blackmon and Graham discussed various stores in Newnan where they could cash the forged checks. She also testified that Graham and Blackmon took her home but that the two men continued to use her car that day and the next. This corroborated Blackmon’s testimony that he and Graham went to the E-Z Stop where Blackmon cashed DAF check number 5814 (subject of count 4 for which Graham is convicted). The clerk at this second store testified that, while she saw no one else with Blackmon, she did notice a small white car parked outside. Regarding count 7 for which Graham was convicted, Blackmon testified that, with Graham driving, the two went to the First Union Bank where Blackmon tried to negotiate DAF check number 5797. When the teller séemed to hesitate about cashing the check, Blackmon and Graham decided it was too dangerous to wait and drove off. Rachael Hood, teller supervisor at the bank, testified that one of her tellers brought the suspicious check to her attention and that she saw the people in a white-looking car drive off.

The State also adduced the testimony of Lillie Bell Pinson that she saw Graham hide the stolen checkbook and the checkwriter outside the Pinson house. Police found the articles in the woods outside the house. In addition, the clerk at Tommy’s Self Serve (formerly known as Mr. Bee’s) positively identified Graham as the man who attempted to cash a DAF check at her store early on the morning of November 10. She was unable to cash it because she did not have enough money. She also testified that she knew Blackmon and that Graham and Blackmon were together. Blackmon also testified about this incident. Although at trial, Graham claimed he was in Atlanta helping a friend move during the relevant time, the investigating police officer testified that, when questioned, Graham never mentioned the alibi but said he had heard something about some girls forging checks and a stolen checkwriter.

“While the corroboration must be independent of the accomplice’s testimony and must connect the [defendant] to the crime or lead to the inference of [his] guilt, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. 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. Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.” (Citations and punctuation omitted.) Howard v. State, supra at 187-188. Contrary to Graham’s argument, we find the State produced sufficient evidence to corroborate the testimony of Blackmon, Graham’s accomplice, that Graham participated in a conspiracy to forge and to pass forged checks and to connect Graham with each of the counts for which he was convicted. We conclude that, pursuant to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), a rational trier of fact could have found Graham guilty beyond a reasonable doubt of the crimes charged.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided July 3, 1990

Rehearing denied July 16, 1990.

Glover & Davis, R. Keith Prater, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.