text:
    74231.
    MATHEWS v. THE STATE.
    (358 SE2d 639)
   Beasley, Judge.

Defendant appeals his conviction of armed robbery, OCGA § 16-8-41.

1. Error is asserted in the trial court’s excepting a state’s witness from the rule of sequestration, OCGA § 24-9-61, and having done so, not requiring the witness to testify first. The prosecuting attorney stated that the witness, who was a police chief and the primary investigating officer, was needed to aid in the presentation of the case and that in the orderly presentation of the case should testify last. This witness testified only about the post-arrest events and not about the incident itself. While it would have avoided the issue to require him to testify first, the trial court did not abuse its discretion in permitting the witness to remain in the courtroom and testify last. Davis v. State, 242 Ga. 901, 903 (3) (252 SE2d 443) (1979); Blalock v. State, 250 Ga. 441 (1) (298 SE2d 477) (1983).

2. Defendant complains of the admission of statements he made while in police custody and being transported from Dublin to St. Marys, the scene of the crime. At the Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), hearing the following facts were developed. Defendant turned himself in at Dublin and was subsequently picked up by police from St. Marys. Before leaving, the police chief read defendant the Miranda rights. At that time defendant replied: “I do not want to make a statement.” The police chief testified no interrogation took place and during the early part of the ride the only inquiry made of defendant was what grade in school he finished. Defendant disputed this testimony, stating that he was told he would get a long sentence and that threatening remarks were made although he did not take them to be actual threats. According to the police chief he called over the radio about the presence of what he perceived to be a fire in the area and defendant spontaneously began to talk about the crime, relating a story about being kidnapped and coerced into committing the robbery by the other participant who is still unknown.

Decided June 4, 1987.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

At a Jackson v. Denno hearing the state must prove the volunta-riness of in-custody statements by a preponderance of the evidence. Lee v. State, 145 Ga. App. 369, 371 (2) (243 SE2d 734) (1978). Gates v. State, 244 Ga. 587, 590 (1) (261 SE2d 349) (1979). The trial court is the trier of fact, resolving factual issues such as credibility of witnesses and considering the totality of circumstances in making a determination as to the admissibility of the in-custody statement. Toole v. State, 146 Ga. App. 305, 309 (13) (246 SE2d 338) (1978); Pierce v. State, 238 Ga. 126 (231 SE2d 744) (1977). Unless clearly erroneous, the decision will be upheld. Howard v. State, 180 Ga. App. 817 (1) (350 SE2d 825) (1986).

Based on proof introduced by the state, defendant’s statements were not the result of interrogation. Instead, defendant himself initiated further conversation with the police. There were no violations of the concepts contained in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966); Brewer v. Williams, 430 U. S. 387 (97 SC 1232, 51 LE2d 424) (1977), or Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), insofar as they are raised by defendant. See Rhode Island v. Innis, 446 U. S. 291, 298 (100 SC 1682, 64 LE2d 297) (1980); Wyrick v. Fields, 459 U. S. 42, 46 (103 SC 394, 74 LE2d 214) (1982); Oregon v. Bradshaw, 462 U. S. 1039, 1043 (103 SC 2830, 77 LE2d 405) (1983).

Considering the totality of circumstances here, it was not error to admit the testimony regarding defendant’s statements.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74319.
    KENNY v. M & M SUPERMARKET.
    (358 SE2d 641)
   Birdsong, Chief Judge.

Summary Judgment — Slip and Fall. The facts are not in dispute in this case, only the conclusions to be drawn from those facts. Ms. Kenny went to M & M Supermarket to purchase some groceries. She said that as she walked down an aisle, she felt like she stepped in a liquid substance, some water. It must have been water, she posits, because she slid so far, approximately ten feet. Ms. Kenny conceded she did not know what it was that caused her fall for she did not see a foreign substance, her shoes were not wet nor were her clothes. All she knew was that she fell and it must have been water that caused the fall. In opposition to Ms. Kenny’s supposition, an agent of the store affirmed that he had mopped and buffed the floor during the morning hours. In accordance with store policy, he had inspected the area where Ms. Kenny fell approximately five minutes before her slip and found no foreign substances on the floor. Immediately after Ms. Kenny fell, the employee looked for and found no foreign or slippery substance to cause Ms. Kenny’s slip and fall.

The conclusion is inescapable that Ms. Kenny slipped and fell for an unexplained reason and the fall caused her to believe she slipped in water, especially because she slid so far. To presume that because a customer falls in a store the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety, a status not imposed by the law of this state. Key v. J. C. Penney Co., 165 Ga. App. 176 (299 SE2d 895). This record is silent as to why or how Ms. Kenny slipped, or upon what, other than by pure supposition. See McGauley v. Piggly-Wiggly Southern, 170 Ga. App. 851, 852 (319 SE2d 15). Her supposition is rebutted by actually observed facts that there was no water or other wet slippery substance on the floor to cause her fall. In passing upon a motion for summary judgment, a finding of fact which may be inferred (as by Ms. Kenny) but is not demanded by circumstantial evidence, has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred do exist. Ussery v. Koch, 115 Ga. App. 463 (1) (a) (154 SE2d 879).

Ms. Kenny seeks to invoke a conclusion that because M & M employees were present near the scene of the slip and fall M & M constructively was aware of the dangerous situation caused by the slippery substance. The fallacy of the supposition of constructive knowledge is that the condition must in fact exist and for a sufficient period of time in the immediate vicinity of the proprietor’s agents so that constructive knowledge may be imposed. Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353). The doctrine of constructive knowledge does not provide any comfort to Ms. Kenny.

Considering the ultimate fact that Ms. Kenny testified in her deposition that she did not see any substance, did not feel it or experience it on her clothing and did not inspect the floor after her fall, leads inescapably to the conclusion that only a fall was involved; thus the trial court did not err in granting summary judgment to M & M Supermarket. Bradley v. Red Food Stores, 179 Ga. App. 39, 40 (345 SE2d 127).

Decided June 4, 1987.

Steven E. Scheer, H. Press Smith, for appellant.

Jordon D. Morrow, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    74170.
    STAFFORD v. QUINN et al.
    (358 SE2d 619)
   Pope, Judge.

On June 20, 1986 appellant Billy Stafford filed a medical malpractice action against appellee doctors alleging, inter alia, injuries and damages flowing from appellees’ negligent treatment of appellant on August 3, 1983. Appellees subsequently filed motions seeking a judgment on the pleadings based on appellant’s failure to file his action within the applicable two-year statute of limitation. The trial court granted the appellees’ motions on October 21,1986 and Stafford appeals.

Appellant concedes his action was barred as of August 23, 1985 under the two-year statute of limitation contained in OCGA § 9-3-71, but argues the 1985 amendment to that section created a one-year “grace period” for all actions which existed on July 1, 1985, the effective date of the amendment.

Prior to the 1985 amendment, the two-year limitation period contained in OCGA § 9-3-71 commenced from “the date on which the negligent or wrongful act or omission occurred.” Although amended section 9-3-71 also contains a two-year limitation period, said period now commences on “the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” OCGA § 9-3-71 (a). Although not codified, the legislature also provided as follows: “No action for medical malpractice which, prior to July 1, 1985, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act. No action for medical malpractice which would be barred before July 1, 1986, by the provisions of this Act but which would not be so barred by the provisions of Title 9 in force immediately prior to July 1, 1985, shall be barred until July 1, 1986.” Ga. L. 1985, p. 556, § 3.

Appellant contends the second sentence of subsection 3 creates a one-year grace period so that all actions which existed on July 1, 1985, the effective date of the amendment, could be timely filed any time prior to July 1, 1986. Conversely, appellees contend subsection 3 creates a grace period only for those causes of action which would be viable until July 1, 1986 under the provisions of former Title 9, but which would be barred prior to that date under OCGA § 9-3-71 as amended. Thus, appellees argue, since appellant’s action would be barred as of August 3, 1985 under both the former and the present statute of limitations, subsection 3 is inapplicable, and the trial court properly dismissed Stafford’s untimely filed complaint.

Decided May 22, 1987

Rehearing denied June 5, 1987

Richard W. Summers, for appellant.

Frederick N. Gleaton, Richard Smith, John E. Hall, Jr., Penelope B. Rundle, for appellees.

Although we are persuaded that a literal reading of subsection 3 supports appellees’ interpretation of that section, we are constrained by the Georgia Supreme Court’s interpretation of a similar provision in Allrid v. Emory Univ., 249 Ga. 35 (1) (b) (285 SE2d 521) (1982), to adopt appellant’s position. In Allrid, the court considered the effect of the General Assembly’s enactment of Code Ann. § 3-1102 et seq. which replaced Code Ann. § 3-1004 insofar as it related to the statute of limitation in medical malpractice actions. Of particular import to the case sub judice is the court’s construction of section 3-1105, which provided as follows: “No action for medical malpractice which would be barred before July 1, 1977, by the provisions of this Chapter but which would not be so barred by the provisions of Title 3, (i.e., Code Ann. § 3-1004) in force immediately prior to July 1, 1976, shall be barred until July 1, 1977.”

In Allrid our Supreme Court determined the effect of that code section to be as follows: “No cause of action which existed on July 1, 1976, the effective date of Code Ann. § 3-1102, was immediately barred by the statute. Every such cause of action survived for at least the grace period of one year.” Allrid, supra at 37.

Except for references to the applicable dates and code sections, Ga. L. 1985, p. 556, § 3 and Code Ann. § 3-1105 are indistinguishable. Thus, based on the Supreme Court’s interpretation of identical language in Allrid, we hold that every medical malpractice action which existed on July 1, 1985, the effective date of the amendment to OCGA § 9-3-71, survived until July 1, 1986. Accordingly, the trial court erred in dismissing appellant’s action in the case sub judice.

Judgment reversed.

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


text:
    74212.
    In re J. B.
    (358 SE2d 620)
   Pope, Judge.

A delinquency petition was filed in the Juvenile Court of Fulton County alleging that the appellant, a juvenile, had committed three acts of child molestation. The court found him to be delinquent and in need of treatment and rehabilitation, and placed him on probation, from which he appeals.

1. Appellant contends that the State presented no evidence to prove beyond a reasonable doubt that the delinquent conduct occurred in Fulton County so as to establish proper venue under OCGA § 15-11-15. The evidence showed that the acts took place in appellant’s home, and the complaint alleged that the appellant lived with his mother at “2980 Jonesboro Road # 54 Atl. Ful. Co. Ga.” The delinquency petition further referred to that address as being in Fulton County, Georgia. There was no evidence that the address was located in any other county, nor did appellant or his counsel so allege. “Evidence of venue, though slight, is sufficient in the absence of conflicting evidence. [Cits.]” Phelps v. State, 180 Ga. App. 24, 25 (348 SE2d 505) (1986). Accord Ludden v. State, 176 Ga. App. 109 (3) (335 SE2d 428) (1985).

2. Appellant asserts that the petition should be dismissed because the hearing thereon was not held within 60 days of its filing as mandated by OCGA § 15-11-26 (a). See also J. T. G. v. State of Ga., 141 Ga. App. 184 (233 SE2d 40) (1977). The record shows that the petition was filed on May 7, 1986 and the matter was scheduled for hearing on June 24, 1986. On that date the court found that appellant’s case could not be reached and issued an order continuing the hearing until August 19, 1986. The statute requires only that a hearing date be set within 60 days and this was done, thus satisfying the essential requirement of the law. Cf. P. L. A. v. State of Ga., 172 Ga. App. 820 (2) (324 SE2d 781) (1984); J. B. v. State of Ga., 171 Ga. App. 373 (2) (319 SE2d 465) (1984). “[I]f the party does not enter an objection during the course of the trial he will not be heard to complain on appeal, and, if a hearing is set within the statutory time limit, the court may in its discretion grant a continuance.” Sanchez v. Walker County DFACS, 237 Ga. 406, 408 (229 SE2d 66) (1976). We find no abuse of discretion here.

3. Nor do we agree that the portion of the order continuing the hearing which also enjoined the appellant from threatening or harassing any of the victims or witnesses in the case until further order amounted to a prior and unwarranted restraint on appellant’s freedom of speech and his right to investigate the charges against him. It appears from the transcript of the June 24 hearing that the appellant had threatened these little girls, and the juvenile court judge would have been authorized under OCGA § 15-11-26 (d) to take appellant into custody. She explained this to appellant, and stated that if he violated the order he would be put in the detention facility, and that she was acting “to maintain the peace in the community and permit witnesses who have legitimate complaints against alleged perpetrators, to have the freedom of airing out in court what those complaints are without anybody threatening them or hushing them up in any way or by any means whatsoever.” We find no merit to defendant’s arguments that the court’s order violated his right to free speech or would impede investigation by defense counsel; accordingly, this enumeration is without merit.

4. Appellant com plains that the court allowed one of the victims and her mother to testify improperly over his hearsay objection as to what another victim, who was not present at the hearing, had told them concerning her molestation by appellant. The transcript of this testimony shows that the victim told the other victim immediately after she was molested; that the second victim was then molested; and that she immediately went and told her mother about both incidents and the mother called the police. The court permitted the testimony as an outcry by the victim and thus admissible as part of the res ges-tae. OCGA § 24-3-3. “[A] trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered . . . will not be disturbed on appeal Unless that determination is clearly erroneous.” Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982); Kilgore v. State, 177 Ga. App. 656 (2) (340 SE2d 640) (1986); Millwood v. State, 174 Ga. App. 113 (2) (329 SE2d 273) (1985). We find no grounds for reversal. See also Lynn v. State, 181 Ga. App. 461 (2) (352 SE2d 602) (1986).

5. Appellant’s contention that no evidence was presented as to when the alleged acts were committed so as to establish that they were within the four-year statute of limitation (OCGA § 17-3-1 (c)) is likewise without merit. The witnesses’ testimony established that the events occurred in mid-April of 1986. All that had to be proved was that the crimes were committed within four years prior to the date of filing the delinquency petition on May 7, 1986. See Phelps, supra; Robinson v. State, 175 Ga. App. 845 (1) (334 SE2d 886) (1985).

6. Appellant’s final enumeration of error is that there was insufficient evidence to prove child molestation, as defined by OCGA § 16-6-4 (a), specifically in regard to his intent to arouse or satisfy his sexual desires. “Intent, however, is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. OCGA § 16-2-6.” Daniel v. State, 179 Ga. App. 54, 55 (1) (345 SE2d 143) (1986). The evidence showed here that appellant ordered the young girls to come into his room where he fondled them under their clothing in the genital area. From these facts it can be inferred that the appellant committed those acts in order to satisfy his own sexual desires. This was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant had committed the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986); Daniel, supra.

Decided May 22, 1987

Rehearing denied June 5, 1987

Douglas R. X. Padgett, for appellant.

Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Benham, Judge.

text:
    74098.
    BRUMBALOW v. FRITZ.
    (358 SE2d 872)
   Benham, Judge.

On November 7, 1983, appellant’s daughter was suffering from severe lower back pain, pain in her shoulders and upper abdomen when breathing, and burning with urination. Appellant took her to the emergency room at Button Gwinnett Hospital, where she was examined by appellee Dr. Fritz. Appellee arranged for blood and urine samples and x-rays to be taken of appellant’s daughter, who fainted during the process. Appellee made a preliminary diagnosis and recommended that the daughter be admitted to the hospital for further examination and testing. Appellant’s daughter refused appellee’s advice and declined admission to the hospital. Appellee released her, against his medical advice, when she also refused to allow him to make an appointment with her personal physician for the next day. She insisted on making her own appointment with her physician. After appellant assisted her daughter in leaving the emergency room, her daughter fainted and fell in the hospital hallway. In an attempt to help her daughter, appellant fell and fractured her hip.

Appellant sued appellee and others on October 17, 1985, approximately three weeks before the statute of limitation expired, claiming that appellee’s treatment of her daughter was negligent in that he did not provide a wheel chair or proper medical personnel to assist her during her discharge from the hospital. Appellee was not served with the summons and complaint until March 12, 1986, almost five months after the action was brought. After discovery, appellee filed a motion for summary judgment, which appellant opposed. The trial court granted appellee’s motion, holding that, based on appellee’s affidavit, his treatment of appellant and her daughter at all times equaled or exceeded the standard of care practiced by the medical profession generally under the same conditions and circumstances; that appellant’s medical expert’s affidavit failed to address appellee’s alleged omissions as stated in the complaint; and that as a matter of law appellant had not demonstrated that the requisite physician/patient relationship had existed between appellee and appellant or her daughter, because the consensual transaction upon which such a relationship is based had been terminated when appellant’s daughter refused to follow appellee’s advice and left the emergency room of her own accord. The trial court also found that appellant’s case was subject to judgment under the doctrine of laches, inasmuch as appellant did not demonstrate diligence or reasonableness in attempting to locate appellee to effect service on him. Appellant here challenges the trial court’s rulings as stated above. We affirm.

1. The trial court did not err in making the findings of fact and conclusions of law as set out in its order, and our review of the record supports those findings and conclusions. The affidavit and other material submitted by appellee pierced appellant’s allegations. Appellee sufficiently negated one of the elements of the classic medical malpractice action, the existence of a physician/patient relationship, upon which the instant case was based, and was therefore entitled to summary judgment in the absence of appellant’s specific evidence to the contrary. Clanton v. Von Haam, 177 Ga. App. 694 (2) (340 SE2d 627) (1986).

2. The trial court also acted properly in ruling in appellee’s favor on the laches issue. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (3) (307 SE2d 134) (1983). It was undisputed that almost five months elapsed from the time of filing to the time of service on appellee, that the statute of limitation expired more than four months before service was perfected, and that appellant made no effort to contact ap-pellee’s counsel to determine his whereabouts although she knew his counsel’s identity. Therefore, judgment in appellee’s favor was well predicated on this ground. Id.

Decided June 5, 1987.

Theodore P. Blanco, for appellant.

John M. McGarity, William L. Ballard, for appellee.

Judgment affirmed.

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


text:
    74191.
    LOONEY v. LOONEY.
    (358 SE2d 642)
   Birdsong, Chief Judge.

Kermit and Jo Dean Looney obtained a divorce in Fayette County in which the mother was given custody of their two minor children, with provisions for visitation, alimony, and support. The father moved to North Carolina and was notified by his former wife that she intended to move to Indonesia with the children. On July 10, 1986, the father brought an action in Fayette County, the county of residence of the mother and the children, for a change of custody of the children to himself or in the alternative a modification of visitation rights so that the children would be allowed to visit with him each year from June 1 to September 1, with the mother being responsible for the children’s travel expenses. The mother answered and counterclaimed for an increase in support and other equitable relief.

At a hearing on a temporary order for modification of support, counsel for the mother advised the court that when Mr. Looney filed his petition, he had physical custody of the children, but “the children were not in the custodial control of the defendant. ...” The court asked counsel: “Now, you contend that his proceeding for change of custody is improper because it was filed at a time when he was improperly withholding custody from the mother — [COUNSEL] Yes, sir, I do.” Mr. Looney testified he picked up the children in the second or third week in June and returned them in the second or third week in July. He had permission of the mother for one month’s visitation. “[W]e had agreed on a certain day to return them; and it was either the 10th or the 11th of July. . . . Q. Did you return them on the agreed day? A. Yes, I did.” Looney agreed that the decree gave two weeks’ visitation, but he and his wife had always agreed upon one month’s visitation each year. The children were physically with him when his ex-wife was served with his petition. The court held: “They can’t change a court order by agreement” and dismissed appellant’s complaint. This court granted the father’s application for discretionary appeal. Held:

Decided June 5, 1987.

Larry H. Evans, for appellant.

Judith M. Alembik, W. Fletcher Sams, for appellee.

Our code establishes that neither a physical nor a legal custodian will be allowed to maintain an action for child custody, change of custody, or change of visitation rights so long as custody of the child is withheld from the legal custodian. OCGA § 19-9-24; see also Hudson v. White, 240 Ga. 209 (240 SE2d 18). In the instant case, however, the parties’ “Settlement Agreement,” which was before the court as an attachment to appellant’s complaint, granted child visitation to the father for two weeks each summer, and “[s]uch other times as the parties may later agree upon. . . .” It is not contested that the parties agreed upon one month’s visitation each summer. Accordingly, since the parties had agreed upon a visitation of one month and the children were returned to the custody of the mother on the day agreed upon, the children were not withheld from the custody of the mother on the date she was served, and the trial court erred in dismissing the petition on that ground.

Judgment reversed.

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


text:
    74308.
    RANN v. THE STATE.
    (358 SE2d 644)
   Birdsong, Chief Judge.

Arthur Keith Rann was convicted of three offenses of burglary and one of possession of tools used for the commission of crime. He was sentenced to 65 years as a recidivist but with the last 15 years on probation. He brings this appeal enumerating four asserted errors, one dealing with the sufficiency of the evidence and three with the charge of the court. Held:

1. The evidence in this case, though connecting Rann to the several crimes primarily by circumstantial evidence, clearly established the commission of the three burglaries with personal property taken from the premises in each burglary. Thereafter within a short time, Rann was discovered in possession of some of the stolen personal property. Rann pawned numerous of the stolen items and was identified as the person who pawned the property. He was identified as a person present at the scene of one of the burglaries at the time it took place. He was found storing what apparently was some of the stolen property in a car he had stolen at an earlier burglary. He admitted to a police officer, after appropriate warnings of his right to silence, that he was pawning some of the stolen property to support a drug habit. It also was shown that Rann was present in the treatment area of a local hospital (perhaps for detoxification) but was creating a disturbance. A policeman called to the scene saw Rann and a nurse in the hallway of the hospital. At his apprehension, the nurse called attention to a small bag which was identified as belonging to Rann. Rann did not deny ownership. The officer took possession of the bag and searched it for additional drugs. However, the bag contained burglary tools. After the commission of the last burglary charged and after Rann had been arrested, a search of the car then in his possession revealed another supply of burglary tools very similar to the one confiscated at the hospital. In short the evidence painted the profile of a professional burglar caught with the tools and fruits of his illicit labors. Rann was not physically placed within any of the burgled premises nor did he ever admit his guilt.

Whether in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for the jury. If a jury is authorized to find the evidence, though circumstantial, sufficient to exclude every reasonable hypothesis save that of guilt, the verdict will not be disturbed by an appellate court unless the verdict is unsupportable as a matter of law. Henderson v. State, 170 Ga. App. 170 (316 SE2d 814). Construing the evidence in the light most favorable to upholding the jury’s verdict, we are convinced that any rational trier of fact would have found Rann guilty of the four crimes charged beyond reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. In his next two enumerations of error, Rann complains the trial court erroneously placed the burden of proof upon him by charging that he was required to explain his possession of recently stolen property in a manner consistent with innocence. The complaint raised by Rann is not an accurate reflection of the charge actually given. The court, having given the law of inferences arising from recently stolen property, also told the jury that they could not draw that inference if there “should be from the evidence a reasonable explanation of his possession of such property consistent with his plea of innocence” (emphasis supplied) that being a question solely for the jury to determine. Thus the charge did not place any burden upon Rann to show his innocence but told the jury it must look to the evidence. Such a charge is a correct statement of the law. See Williamson v. State, 248 Ga. 47, 57-58 (281 SE2d 512); Chaney v. State, 169 Ga. App. 616 (1) (314 SE2d 457).

3. In his last enumeration of error, Rann complains that a charge on flight was not warranted by the evidence and thus amounted to an improper comment by the trial court on the evidence. We find no merit in this enumeration. There was evidence that a person driving a car rented by Rann (being improperly withheld from the lessor), and driven by a man resembling Rann, was chased by the lessor. By the time police could arrive, the car was parked and the driver had left, leaving Rann’s identification and much stolen property and burglary tools in the car. Such evidence authorized a charge on leaving by way of flight. More importantly, however, as to the enumerations in the last two divisions of this opinion, when asked by the trial court if Rann had any objection to any charge of the court, Rann’s counsel expressed complete satisfaction with the charge. Moreover when the evidence of flight was introduced, no objection was raised to that evidence.

Decided June 5, 1987.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

The general rule is that a defendant in a criminal case is not required to except to a jury charge to preserve error for appeal. If however the trial court expressly asks if there is objection, this requires counsel to make objection or reserve his right to do so. The failure either to object or to reserve the right to object later raises a procedural default which bars subsequent appellate review of the charge. Rivers v. State, 250 Ga. 303, 309 (298 SE2d 1). This is seemingly a restatement of the rule that a party cannot during the trial ignore what he thinks to be an injustice, take his chances on a favorable verdict and complain later. Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221); Gibbons v. State, 136 Ga. App. 609, 610 (222 SE2d 55). These enumerations are without merit.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    73842.
    THE STATE v. JOHNSON.
    (358 SE2d 840)
   Sognier, Judge.

In this appeal the State contends the trial court erred by modifying Johnson’s sentence more than one year after it was imposed. This is a direct appeal from that action. Although OCGA § 5-7-1 does not allow for an appeal by the State from the probation of appellee’s sentence to confinement, the State contends the court’s probation of the sentence is void and this court has held that void sentences are ap-pealable by the State. State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978); State v. Shuman, 161 Ga. App. 304, 306 (6) (287 SE2d 757) (1982). Thus, we will review this matter in light of the State’s contention that the trial court’s action in probating appellee’s sentence to confinement is void.

The record shows that on February 1, 1985, appellee was found guilty of two counts of forgery and sentenced to ten years’ confinement on each count, to run concurrently. However, the court ordered a post-sentence investigation to determine what portion of appellee’s sentence, if any, should be probated. The same date appellee filed a notice of appeal and on February 3, 1986, his conviction was affirmed by this court. Johnson v. State, 177 Ga. App. 705 (340 SE2d 662) (1986). On April 9, 1986, the trial court held a hearing and probated appellee’s entire sentence to confinement.

The State contends that the court’s sentence to probation on April 9, 1986, is void because more than four terms of court have passed since appellee was convicted and sentenced on February 1, 1985. The State argues that under the provisions of OCGA § 17-10-1, the trial court had no power or authority to change or modify the sentence. OCGA § 17-10-1 (a) provides, in pertinent part: “Except in cases in which life imprisonment or the death penalty must be imposed, upon a verdict ... in any case involving a misdemeanor or felony and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years ... as the punishment for the crime. The judge imposing the sentence is granted power and authority to . . . probate the sentence under such rules and regulations as he deems proper. . . . After the term of court, or 60 days from the date on which the sentence was imposed by the judge, whichever time is greater, he shall have no authority to suspend, probate, modify, or change the sentence of the defendant, except as otherwise provided by law.” It is the last sentence of this statute that the State relies on to support its contention that the trial court had no power or authority to probate appellee’s sentence to confinement. Although this appears at first blush to be a valid contention, we disagree with the State’s position for reasons set forth hereafter.

The sentencing portion of the original trial makes it readily apparent that the trial court did not intend its sentence to ten years’ confinement to be the actual, or “final,” sentence for appellee. In this regard, the court stated: “I’m going to order a post-sentence investigation to determine whether or not any part of the sentence should be probated. But, that determination will be made upon the information furnished me by the Clayton County Probation Office post-sentence investigator and any information that the defendant wishes to furnish in documentary form.” The court then imposed the sentence to ten years’ confinement and stated: “Thirty days from today or as close thereto as a Friday morning falls, the Probation Department will have completed the post-sentence investigation and you will be brought back before the Court for a determination as to how much, if any, of the sentence should be probated.” Although the record does not disclose why the post-sentence investigation was delayed, at the hearing on April 9, 1986, the court stated: “The investigation has been completed and Court is now ready to finalize your sentence.” (Emphasis supplied.) The court then sentenced appellee to the same ten years (on each count), but probated the confinement.

Decided May 19, 1987

Rehearing denied June 8, 1987

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellant.

Robert A. Moss, for appellee.

This court has held that it is permissible to use a “post-sentence” report for the purpose of deciding whether to suspend or probate all or some part of a sentence. Threatt v. State, 156 Ga. App. 345, 347 (274 SE2d 734) (1980). Hence, the procedure followed by the court in the instant case was proper. Although OCGA § 17-10-1 (a) generally prohibits suspension, probation, modification or change of a sentence after the term of court at which sentence is imposed, the statute contains the proviso “except as otherwise provided by law.” OCGA § 42-8-34 (a) provides, in pertinent part: “Any court of this state which has original jurisdiction of criminal actions ... in which the defendant in a criminal case has been found guilty . . . may, at a time to be determined by the court, hear and determine the question of the probation of such defendant.” (Emphasis supplied.) The court here determined the time for such a hearing to be on April 9, 1986, after it received the post-sentence investigator’s report. Thus, under the facts and circumstances of this case, including the court’s expressed intention to consider probation for appellee, we find the trial court’s action proper and the sentence to probation is not void. Hence, the State’s appeal is dismissed.

Appeal dismissed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    73979.
    CAWTHON et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY. BALDWIN COUNTY BOARD OF EDUCATION et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY.
    73980.
    (358 SE2d 615)
   Sognier, Judge.

Julius Jerome Cawthon and Josephine Cawthon brought suit against the Baldwin County Board of Education (Board), its members both individually and in their official capacities, the Baldwin County School District and Margie Humphries, bus driver, for the wrongful death of their minor child, Robert. Waco Fire & Casualty Insurance Company, the issuer of the business automobile liability policy to the Board, filed an action seeking a declaration of its obligations under that policy in regard to the wrongful death suit. The trial court granted summary judgment in favor of Waco on its motion contending it was not obligated to provide coverage, to defend or to indemnify any defendant in the wrongful death suit. The appeals by the Cawthons and by the Board and other defendants in the wrongful death suit are consolidated in this opinion.

Robert Cawthon, age 10, was struck and killed as he was crossing a heavily-trafficked highway in order to get to his bus stop. The evidence shows that Robert was serving as look-out for the approach of the bus and that, upon espying the bus, he first returned to the building where his two sisters were waiting, informed them the bus was coming, then proceeded ahead of them to the highway whereupon he was struck by an on-coming automobile while crossing to the bus stop. The evidence conflicts whether the school bus was approaching Robert’s stop at the time of the accident or was still at the previous stop. However, it is uncontroverted that the prior stop was less than one-tenth of a mile away and that the bus was clearly visible to Robert at the time of the accident.

Further controversy exists in the evidence regarding Robert’s action in crossing the highway prior to the arrival of the school bus. Up until four to six weeks prior to Robert’s death, the Cawthon children had always waited for the school bus to arrive before crossing the highway under the protection and supervision of the school bus and driver. The Cawthon children’s behavior changed at this time due to an incident in which Eunesia, Robert’s older sister, was so late that the school bus had to leave her behind. Humphries, the bus driver, stated in her deposition that she told her transportation supervisor about the incident and about Eunesia’s recurring tardiness the same day she had to leave Eunesia behind, that the supervisor told her complaints had been received about the school bus delaying traffic on the highway, and that he told her to leave Eunesia if the child was not on time. Humphries stated that the following school day she told Eunesia (in a lecture apparently overheard by all the occupants of the school bus) people had complained about the school bus holding up traffic and from then on Eunesia would have to be outside waiting on the bus with the other children or she would be left. Humphries stated she did not discuss with Eunesia on which side of the highway she should be waiting or whether by “other children” she meant Robert and the younger Cawthon child or the “other children” who also boarded at that stop, all of whom waited at the bus stop itself because they did not need to cross the highway. Robert’s sisters and another student who rode the school bus at that time testified by deposition that Humphries told them explicitly that if the children were not waiting at the bus stop when the school bus arrived, they would be left behind. It is uncontroverted, however, that in the four to six-week period following this incident, Humphries repeatedly arrived at the bus stop to find the Cawthon children already across the highway at the stop. Humphries testified that during this period, she did not discuss with the Cawthon children on which side of the highway they should be waiting, that she did not know how the children were crossing the highway (supervised or otherwise) and that she made no inquiry of the children in that regard.

Appellants contend the trial court erred by granting summary judgment to appellee because questions of fact exist whether liability for Robert Cawthon’s death comes within the provision of the policy issued by appellee providing coverage for “bodily injury caused by an accident and resulting from the ownership, maintenance or use of a covered auto.” In Georgia Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga. App. 120 (329 SE2d 204) (1985), in which a child was injured crossing an adjacent street moments after alighting from the school bus, we held “it can be reasoned that ‘use’ of the vehicle in question, a school bus, includes transportation of children to and from such school and the unloading of the school bus and that such unloading encompasses not only depositing them outside the bus but assuring that they reach a place of safety which, as in this case, may include crossing a street.” Id. at 124. Although the court in Greene found this definition of “use” to be reasonable and rational, it is to be noted that Greene involved the unloading of a school bus and that there are specific statutory regulations in regard to children disembarking from school buses. OCGA § 40-6-164. Although Hill v. McClure, 171 Ga. App. 588 (320 SE2d 562) (1984), bears some factual similarities to the case sub judice, no discussion of loading or “use” of a school bus was considered necessary to decide that opinion and thus it is distinguishable on the law applied. Nor do we find general carrier case law to be helpful here because opinions discussing injuries incurred while boarding various types of motor carriers dwell on the duty of care owed and the injured party’s status as passenger rather than on “ ‘[w]hether or not an injury arose from the “use” of a motor vehicle within the contemplation of a liability policy. . . .’” Greene, supra at 122. See, e.g., Atlanta Northern R. Co. v. Brown, 159 Ga. 212 (125 SE 465) (1924); McKay v. City of Atlanta, 80 Ga. App. 797 (57 SE2d 432) (1950).

Insofar as Georgia law is concerned, we have been unable to find, nor have counsel cited us to any opinions discussing what constitutes the loading of a school bus under a provision of a policy of insurance such as the one sub judice. Although the factual dissimilarities in Greene, supra, have been noted, it can be discerned from the language employed therein — as indeed it is virtually conceded by the parties — that the loading of school children as well as the unloading thereof is included in the “use” of a school bus. A child crossing a road while a school bus is standing guard with its lights flashing, its stop signals activated and all visual signals functioning is under the protection of the school bus and any injuries arising during this phase of operation fall within the purview of the policy and statutory language of OCGA § 33-24-51. See Greene, supra at 124. Appellee would have this court follow the holding in Eden Prairie Independent School Dist. v. Auto-Owners Ins. Co., 279 NW2d 358 (SC Minn. 1979), in which that court, looking to the Minnesota statutes regarding the loading of school buses, stated that “the loading process commences when the driver properly turns on the amber prewarning signals as he approaches the boarding point.” Id. at 360. That court rejected defining loading from the standpoint of the school child, holding instead that the school bus driver initiates the loading procedure.

We hold that independent, voluntary actions taken by a school child cannot, alone, initiate the loading procedure and that typically the process of loading a school bus is initiated and controlled directly by the bus driver and indirectly by the regulations and policies regarding the loading of school buses issued by the driver’s supervisors. It is not necessary, however, to decide when a bus driver normally initiates the loading procedure or at what point in time control of school children intending to board a school bus passes to the bus driver so as to constitute the process of loading. “Use” of a school bus insofar as the loading process is concerned depends, as do most cases involving the “use” of a vehicle, on the factual context of each case. See Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3, 7 (230 SE2d 70) (1976). Under the facts of this case, construed in a light most favorable to appellants as nonmovants, see generally Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), a question of fact exists whether Humphries, the bus driver, either explicitly ordered the Cawthon children to cross the highway prior to the arrival of the school bus or inadvertently instructed Eunesia Cawthon in such a manner that the Cawthon children reasonably believed that such was Humphries’ order. If that question is resolved in favor of the contention that Robert was acting pursuant to orders from the bus driver, and if it is found that Robert was acting reasonably pursuant to those orders and within the purview of those orders when he attempted to cross the highway as the school bus was allegedly approaching his stop at a distance less than 528 feet away, then the process of loading the school bus may be considered as having been extended by the bus driver to include Robert’s actions, thus encompassing liability for Robert’s death within the coverage provided by appellee. However, should it be resolved that Robert was either not acting pursuant to prior crossing instructions from the bus driver or was not acting reasonably within the purview of those orders, then Robert’s death would not have occurred within the normal process of loading. Thus, we must reverse the trial court’s order granting summary judgment in favor of appellee in view of these questions of fact to be determined. We note that nothing in this opinion addresses the applicability of any general liability insurance possessed by the defendant-appellees in the wrongful death suit in that that question is not properly before this court at this moment.

Decided May 21, 1987

Rehearing denied June 8, 1987

E. Angela Emerson, David N. Rainwater, for appellants (case no. 73979).

Milton F. Gardner, Jr., Richard Gardner, for appellants (case no. 73980).

James M. Poe, Debra L. Mixon, for appellee.

Judgments reversed.

McMurray, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    72757.
    CAPITAL FORD TRUCK SALES, INC. v. UNITED STATES FIRE INSURANCE COMPANY, INC.
    (360 SE2d 78)
    Decided June 8, 1987.

      J. Arthur Mozley, Eric T. Johnson, for appellant.

      W. Wray Eckl, Georgia L. Schley, for appellee.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, U. S. Fire Ins. Co. v. Capital Ford Truck Sales, 256 Ga. 77 (343 SE2d 695) (1987), our decision in Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413 (349 SE2d 201) (1986), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Benham and Beasley, JJ., concur.


author: Carley, Judge.

text:
    73887.
    COLLINS v. THE STATE.
    (358 SE2d 876)
   Carley, Judge.

Appellant was brought to trial before a jury on two indictments and on one accusation. Each of the indictments charged appellant with one count of entering an automobile with intent to commit a theft therein. The one accusation charged appellant with the commission of theft by taking. Although it is unclear whether the theft by taking offense was removed from the jury’s consideration by virtue of the grant of a motion by appellant for a directed verdict of acquittal or by virtue of the trial court’s consent to a nol pros by the State of the accusation, it is clear that only the two counts of entering an automobile were ultimately submitted to the jury. The jury found appellant guilty of those two counts and his motion for new trial was denied. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. Several enumerations raise the general grounds. The evidence adduced at trial showed that, within a short span of time, two cars had been entered without the permission of either of the respective owners. An eyewitness identified appellant as the individual who had entered one of the vehicles. Shortly after the commission of the two crimes, a search of the area resulted in the discovery of items which had been taken from each of the two vehicles. In close proximity of the location where the cache of stolen items was discovered, appellant had apparently hidden himself and, upon his discovery, he attempted to flee. This is sufficient evidence from which any rational trier of fact could reasonably have found proof of appellant’s guilt, beyond a reasonable doubt, of the two crimes for which he was being tried. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Evidence of appellant’s voluntary and self-induced intoxication would not establish a viable defense to his commission of the crimes. OCGA § 16-3-4 (c). Accordingly, the general grounds are without merit and the trial court did not err in denying appellant’s motion for a directed verdict of acquittal.

2. Appellant enumerates as error the trial court’s admission into evidence of certain testimony which related to the theft by taking offense. The issue of appellant’s commission of that offense having been entirely removed from the jury’s consideration, error, if any, in the admission of such evidence as related thereto would be harmless. See generally Dowdy v. State, 159 Ga. App. 805 (1) (285 SE2d 764) (1981). “ ‘Harm as well as error must be shown to authorize a reversal by this court.’ [Cit.]” Durham v. State, 179 Ga. App. 636, 637 (4) (347 SE2d 293) (1986).

3. Appellant enumerates as error the trial court’s denial of a motion for mistrial. The motion was made at the close of the State’s evidence and after the theft by taking charge against appellant had been withdrawn. The basis for the motion was the assertion that appellant’s character had been improperly placed into issue by the State’s election to try him on the charge of theft by taking in conjunction with the two charges of entering an automobile.

Appellant made no motion to sever the theft by taking offense for separate trial. The record is devoid of any indication of improper conduct on the part of the State and shows instead that, in trying appellant for all three offenses, the State was making a good faith effort to join related offenses. See Jackson v. State, 249 Ga. 751, 757 (6) (295 SE2d 53) (1982). The prosecutor had subpoenaed an eyewitness to the theft by taking offense. When that subpoenaed witness did not appear at the call of the case, an immediate attachment was apparently issued but the prosecutor elected to begin the trial without her. When the witness had not been secured by the time the State was otherwise prepared to close its evidence, the theft by taking charge was withdrawn from the jury’s consideration. Although the trial court thereafter denied appellant’s motion for mistrial, it instructed the jury that the theft by taking charge had been withdrawn and that only the two counts of entering an automobile remained pending against appellant.

“In the absence of a demonstration that a mistrial was essential to preservation of a defendant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given. [Cit.]” Bell v. State, 179 Ga. App. 491 (1) (347 SE2d 321) (1986). Considering the withdrawal of the theft by taking offense from the jury’s consideration and the trial court’s instructions that only the two offenses of entering a vehicle were remaining, we find no abuse of discretion in denying the motion for mistrial. Moreover, after the trial court gave its instructions to the jury, appellant did not renew his motion for mistrial. “[T]he denial of a motion for mistrial is not subject to review where, as here, the motion was not renewed following curative instructions. [Cit.]” Morgan v. State, 181 Ga. App. 113 (1) (351 SE2d 517) (1986).

4. Appellant contends that the trial court erred when, within the hearing of the jury, it allegedly made negative comments with respect to a defense witness. However, the record shows that the trial court’s comments actually took the form of proper instructions to the jury regarding the violation by the defense witness of the rule of sequestration. Jordan v. State, 247 Ga. 328, 347 (10) (276 SE2d 224) (1981). There was no error. In addition, appellant made no objection to the jury instruction when it was given by the trial court. “A ground not raised by objection at trial cannot be raised for the first time on appeal. [Cit.]” Williams v. State, 178 Ga. App. 216, 217 (2) (342 SE2d 703) (1986).

Decided June 8, 1987.

W. David Cunningham, for appellant.

David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

5. The trial court’s charge on recent possession of stolen property is enumerated as error. The record shows that, at the conclusion of its instructions to the jury, the trial court inquired of counsel whether there were any objections. In response to this inquiry, appellant’s counsel stated several objections and did not reserve the right to raise additional ones. The grounds that appellant now asserts in support of this enumeration were not raised in the trial court. Appellant’s right to raise these grounds has, under the circumstances, been waived. See generally Alexander v. State, 180 Ga. App. 640 (1) (350 SE2d 284) (1986).

6. The trial court’s refusal to give several of appellant’s written requests to charge is enumerated as error. The record shows that appellant did object to the failure to give these requests in the trial court. Compare Alexander v. State, supra. However, the record also shows that the trial court did instruct the jury on the legal principles contained in appellant’s requests to charge, including the presumption of innocence and the jury’s duty to return a verdict of not guilty unless it was convinced of appellant’s guilt beyond a reasonable doubt. In so instructing, the trial court employed language which was significantly less argumentative than that which had been employed in appellant’s requested jury charges. There was no error.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    73935.
    BURNS et al. v. GLEASON et al.
    (358 SE2d 646)
   Sognier, Judge.

Charles and Nancy Burns brought suit against Darrell and Lisa Gleason seeking the $15,000 down payment made by the Burnses on a house they were to purchase from the Gleasons. The trial court granted summary judgment in favor of the Gleasons and the Burnses appeal.

The parties entered into a sales contract for the purchase of ap-pellees’ home, agreeing further that for the year prior to the closing date, appellants would lease the house for a monthly rent or compensation. A document attached and made a part of the “lease purchase” contract contained special provisions (a) requiring a $15,000 non-refundable down payment, (b) setting forth the terms of the lease agreement, and (c) providing that upon appellants’ failure to pay timely the agreed-upon rent or upon the failure of the parties to close the sales contract for any reason, all monies received were non-refundable and were to “be considered liquidated damages for [appel-lees].” A “Move-In Agreement” referencing the sales contract was also entered into by the parties. It is uncontroverted that appellants were unable to make the required monthly payments and that they vacated the premises eight months after signing the documents.

1. Appellants contend the trial court erred by granting summary judgment to appellees because questions of fact exist whether the $15,000 down payment sum was intended by the parties to constitute liquidated damages or a penalty. Appellees correctly point out that the evidence is uncontroverted that appellants knew the $15,000 would not be refunded to them should they fail to pay the monthly rent. However, there is no evidence to rebut the allegation in appellants’ complaint that the $15,000 sum, though denominated “liquidated damages,” in actuality constituted a penalty.

Georgia law recognizes that parties may agree in their contract on a sum to liquidate their damages. OCGA § 13-6-7 provides “ [i]f the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” “ ‘ “The language of the instrument itself must of course be primarily looked to and considered, though the use of the words ‘penalty’ or ‘liquidated damages’ will by no means always be conclusive” . . .’” Martin v. Lott, 144 Ga. 660, 664 (87 SE 902) (1915). “In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors are present: ‘First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.’ [Cits.]” Southeastern &c. v. Real Estate &c., 237 Ga. 227, 230 (227 SE2d 340) (1976). The record in the case sub judice, which contains no affidavits or other evidence from appellees and consists mainly of the deposition testimonies of appellants, fails to address any one of the three matters enumerated in Southeastern in order to rebut appellants’ allegation that the $15,000 sum was a penalty rather than liquidated damages. We also note that although “implicit in the concept of liquidated damages ... is that both parties are bound by their agreement” and that liquidated damages thus become the “ ‘maximum as well as the minimum sum that can be collected’ [cit.],” id., the record sub judice does reveal that appellees filed a counterclaim to appellants’ complaint seeking $12,000 for damages and special expenses incurred as a result of appellants’ occupancy of the house in question.

Under OCGA § 9-11-56 (c), on a motion for summary judgment the movant has the burden of showing affirmatively that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Moreover, when the movant is the defendant, he has the additional burden of piercing the plaintiffs allegations and affirmatively negating at least one essential element of the plaintiff’s case. See, e.g., Ray v. Ga. Farm &c. Ins. Co., 176 Ga. App. 776, 780 (337 SE2d 779) (1985). Scrutiny of the record before this court indicates appellees have failed to meet these statutory requirements. We must therefore reverse the award of summary judgment on this issue.

2. (a) Appellants contend the trial court erred by granting summary judgment to appellees as to the remaining allegations in their complaint as amended. The record fails to support appellants’ argument that questions of fact exist regarding their allegation that the sales contract was severable from the lease agreement. The sales contract explicitly incorporated by reference the document containing the provisions for the $15,000 non-refundable down payment, the terms of the lease, and the liquidated damages provision, discussed above. The separate “Move-In Agreement” also specifically referenced the sales contract both in the initial paragraph of the agreement and in the special stipulations thereto. The intention of the parties to enter into a non-divisible series of agreements was unambiguously established by the language used by the parties and no question of fact remains as to this issue. See generally Reuss v. Time Ins. Co., 177 Ga. App. 672, 673 (340 SE2d 625) (1986); Farmer v. Argenta, 174 Ga. App. 682, 684 (331 SE2d 60) (1985).

(b) Appellants argue the trial court erred by granting summary judgment to appellees on their allegation that appellees rescinded the “conditional purchase” sales contract and that appellants are thereby entitled to recover the $15,000 non-refundable down payment. Since we held in Division 2 (a), supra, that the sales contract was not sever-able from the lease agreement, it is irrelevant whether appellees rescinded the sales portion of the contract since it is uncontroverted that appellants breached the lease portion of the agreement entered into by the parties and that by the terms of the agreement, the $15,000 was deemed non-refundable by the parties in case of such a breach. Thus, regardless whether the $15,000 constituted liquidated damages or a penalty, see Division 1, supra, no question of fact remains that appellees’ alleged rescission of the sales portion of the contract would not entitle appellants to recover the $15,000 non-refundable down payment due to appellants’ breach of the lease agreement and summary judgment to appellees was thereby proper. See generally Gregory v. Vance Pub. Corp., 130 Ga. App. 118, 120 (3) (202 SE2d 515) (1973).

(c) Although appellants alleged in their complaint that the contract was unenforceable because certain provisions therein were vague, uncertain and indefinite, the testimony of appellants in their depositions belies this allegation and reveals no such vagueness, uncertainty or indefiniteness existed between the parties as to the terms of the lease agreement or as to the parties’ mutual obligations under the documents they signed. Thus, there is no question of fact as to this allegation and summary judgment to appellees on this matter was proper. OCGA § 9-11-56.

Decided June 8, 1987.

Charles L. Day, for appellants.

Jan P. Cohen, E. Speer Mabry, for appellees.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.


author: Beasley, Judge. Sognier, Judge,

text:
    73995.
    RICHIE v. THE STATE.
    (358 SE2d 648)
   Beasley, Judge.

Appellant appeals on the general grounds from a conviction of rape and aggravated sodomy.

1. In accordance with standard procedure, the victim was conducting job interviews for a national corporation in her motel room in Gainesville, Georgia. Appellant phoned and obtained an interview and arrived a few minutes later. After he completed an application form with the victim’s help, appellant asked to use the bathroom. The victim refused but appellant went in anyhow, came out, and closed the room drapes. He appeared to start out the door but stopped and locked it, and then struck the victim, knocking her onto the bed. Appellant attempted to remove the victim’s clothing.

Her testimony at that point became crucial to the precise issue before the court: [After recess] “The Court: Proceed, Mr. Darragh. Q. I believe your testimony is that he was doing something with your clothes; what happened? A. He ripped my skirt, and he was holding me down by the back of my head; he had a handfull of my hair. And I turned around to try to get him off of me again and he hit me. He’d hit me so many times in the head that I was bleeding, and this time it knocked me down on the bed, I couldn’t — I don’t remember anything more until a couple of seconds later I was — my body was pulled halfway off the bed. And my panty hose were down to my ankles, and he had his hand between my legs, and then his body pressed up against mine, and I don’t know if he did anything. There was something there — Q. When you say, something there, would you describe what you’re talking about particularly? A. Something — something was between my legs, and something was there but I couldn’t see because he was right behind me, and then — Q. Was his body up against yours at that time? A. Yes. Q. The something between your legs, did it have contact with your sexual organs? A. Yes. Q. Did it penetrate your sex organs, even slightly? A. Slightly, maybe, yes. I know something was touching me, and he was trying to put something in. Then he stopped and he sat down on the bed. He pulled my head over — Q. How did he pull your head over? A. With my hair. He jerked my head over to his — please, you know what I’m saying. He made me put it in my mouth. Q. Can you testify as to whether his sexual organs came in contact with your mouth? A. Yes, in my mouth. It was inside my mouth. Q. Now was he grabbing your hair at that time? A. Yes. He was holding my head down; was making me put it there. Q. What happened then? A. Then he jerked my head back, and he got up. He ran out of the room, and then he was gone.”

The victim immediately called the desk clerk, who called the police. When they arrived the victim was hysterical, had blood on her face and was wrapped in a towel. The police also observed blood on her clothing, which was torn, and on the door.

A description of appellant was obtained. The following day the victim was called to the police station to look at photographs, including one of appellant. Before the police had an opportunity to explain what they wanted, the victim saw the photographs lying on a table and immediately picked up appellant’s picture and told the police it depicted the person who assaulted her. She also identified appellant positively in court.

Appellant testified that he was with his girl friend at the time of the offense which the girl friend corroborated, and had never seen the victim before.

A medical examination of the victim disclosed no evidence of spermatozoa or semen. A handwriting comparison from the job application form and appellant’s exemplar was inconclusive. None of appellant’s pubic hair or hair from his head was found on the victim’s clothing.

A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. OCGA § 16-6-1.

“[T]he penetration of the female sexual organ by the sexual organ of the male, which is necessary to constitute rape, need be only slight; it is not necessary that the vagina shall be entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient.” Lee v. State, 197 Ga. 123 (1) (28 SE2d 465) (1943). That was given in charge to the jury, as well as charges on aggravated assault and attempted rape.

“In a rape case, penetration may be proved by indirect or circumstantial evidence.” Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974).

The testimony in this case may be compared with that in Runion v. State, 180 Ga. App. 440 (1) (349 SE2d 288) (1986) and Jackson v. State, 157 Ga. App. 604 (1) (278 SE2d 5) (1981). Measured accordingly, the testimony of the victim here clearly raises reasonable inferences of fact for finding beyond a reasonable doubt that a rape occurred.

The victim’s loss of composure during her testimony had prompted the court, observing the sensitivity, to declare a recess. It is plain that she was unable to bring herself to be entirely explicit. Her reluctance to actually name the aggressor’s sex organ does not disallow a finding that that is what she meant and that that is what defendant was trying to insert in her. And her hesitation to firmly announce in public that there was penetration does not detract from her admission that there was. The context of her testimony, which is related above, is also relevant.

We hold that the jury could reasonably infer that the “something” defendant assaulted the victim with was his sexual organ and that the evidence was sufficient for a rational factfinder to find the appellant guilty beyond a reasonable doubt of rape. Thus, it met the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The evidence of aggravated sodomy related above was also sufficient to meet the standard of proof required by Jackson v. Virginia, supra, for conviction. The only issue in regard to that offense was the credibility of witnesses, which was a question for the jury. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985).

Judgment affirmed.

Birdsong, C. J., Been, P. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Carley and Sognier, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent to the finding by the majority that the evidence is sufficient to show beyond reasonable doubt that appellant is guilty of rape. The only issue as to rape is whether the penetration was by appellant’s sex organ, which is an essential element of the offense of rape. OCGA § 16-6-1. I have scrutinized the record and find no evidence of penetration by appellant’s sex organ. The State has the burden of proving each essential element of an offense beyond reasonable doubt. OCGA § 16-1-5; Phillips v. State, 162 Ga. App. 471 (2) (291 SE2d 776) (1982). An inference cannot relieve the State of this burden, especially where, as here, there is no evidence to support such an inference. To infer that penetration by “something” is proof beyond a reasonable doubt that the penetration was with appellant’s sex organ is to approve conviction based on evidence insufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided June 8, 1987.

George H. Law III, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

I do not find the victim’s failure to be explicit in regard to the rape to be based on the fact that she was upset, because immediately after her testimony that she was penetrated “maybe slightly” by “something,” she was very explicit about the offense of aggravated sodomy. Rather, she was not explicit because appellant was behind her, and she could not state what penetrated her. Accordingly, I would reverse appellant’s conviction of rape.

I am authorized to state that Judge Carley joins in this dissent.


author: Benham, Judge. Banke, Presiding Judge,

text:
    74152.
    SCHOFILL v. THE STATE.
    (358 SE2d 651)
   Benham, Judge.

Appellant was convicted of being an habitual violator (OCGA § 40-5-58); driving under the influence of alcohol (OCGA § 40-6-391); operating a motor vehicle while his license was suspended (OCGA § 40-5-121); and operating a motor vehicle without insurance (OCGA § 33-34-12). He appeals the denial of his motion for new trial, enumerating as error the insufficiency of the evidence to support the verdicts. We affirm the judgment of conviction.

Appellant argues that there was insufficient evidence to prove he was operating or driving a motor vehicle, and that, therefore, he should have been acquitted of all four charges. We disagree.

At trial, the arresting officer, Deputy Arowood, testified that he encountered appellant walking along the edge of the road, and when he asked appellant what he was doing, appellant replied that “he had just run his truck in the ditch back down the road.” Deputy Arowood noted that appellant had a strong odor of alcohol on his breath and arrested him for DUI. He then took appellant to the ditch, where he found appellant’s girl friend sitting on the passenger side of the pickup truck. She asked the officer if he was “going to lock [appellant] up.”

Appellant testified that his girl friend was driving the pickup truck when they left her house, and that she was driving with only one hand on the wheel. He testified that they were talking and that after she said something, he grabbed the arm with which she was driving and the truck slid over into the ditch. Appellant said he left the truck to seek help and when he encountered Deputy Arowood, told him, “We run in the ditch back down the road.”

Appellant also admitted that the State had taken his license; that he had been convicted of DUI twice since losing his license; that he had no automobile liability insurance; and that he had been drinking heavily before leaving his girl friend’s house. The results of the intox-imeter test showed appellant to have had a .21 grams percent blood alcohol level.

Appellant’s girl friend and her 17-year-old daughter both testified. The daughter said she saw her mother get into the driver’s side and appellant get into the passenger side of the truck. Her mother corroborated her testimony and that of appellant, saying that she drove the vehicle the entire way until it landed in the ditch. Appellant contends that the jury could not have found that appellant was driving the truck since no one saw him doing so, and since three people testified that someone else was driving.

We disagree with and reject appellant’s contention that Spence v. State, 96 Ga. App. 851 (102 SE2d 51) (1958), is controlling. In Spence, the appellant denied both having anything to drink and driving the vehicle, and no one testified that he had been driving it. This court reversed the judgment of conviction. In the instant case, appellant’s statement to the arresting officer that he had just run his truck into the ditch constituted an admission, which, coupled with the evidence of the girl friend’s location in the truck, her inquiry whether appellant was going to jail, and the intoximeter test result, was sufficient for a rational trier of fact to find appellant guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stephens v. State, 127 Ga. App. 416 (193 SE2d 870) (1972). The jury apparently chose to disbelieve appellant’s witnesses after weighing their credibility, and it was within its province to do so. Mosley v. State, 157 Ga. App. 578 (1) (278 SE2d 154) (1981).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Pope, and Beasley, JJ., concur. Banke, P. J., Carley and Sognier, JJ., concur in part and dissent in part.

Banke, Presiding Judge,

concurring in part and dissenting in part.

I respectfully disagree with the majority’s conclusion that the evidence sufficiently established the central, common element of the offenses of driving under the influence and operating a motor vehicle with a suspended driver’s license, i.e., that the accused had been the operator of the motor vehicle. While we have recognized that circumstantial evidence alone may be sufficient to authorize a finding that a defendant was guilty of operating a motor vehicle while under the influence of alcohol (see Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60) (1981)), it cannot be said that the circumstantial evidence in the present case excludes every other reasonable hypothesis save that of the guilt of the accused. See generally OCGA § 24-4-6.

Decided June 8, 1987.

Donald W. Osborne, for appellant.

Edwin T. Cotton, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

Having concluded that the evidence does not support convictions under OCGA §§ 40-6-391 and 40-5-121, I must also dissent to the af-firmance of the habitual violator conviction. I concur, however, in the affirmance of the conviction of operating a motor vehicle without insurance, because that offense does not require that the accused owner had operated the vehicle. Rather, an accused is guilty of that offense if he “knowingly authorizes another to operate a motor vehicle without effective insurance on such vehicle. . . .” OCGA § 33-34-12.

I am authorized to state that Judge Carley and Judge Sognier join in this opinion.


text:
    74273.
    HARLEY v. THE STATE.
    (358 SE2d 653)
   Sognier, Judge.

Appellant was convicted at a bench trial of violating the Georgia Controlled Substances Act by possessing cocaine. In his sole enumeration of error appellant contends the trial court erred by denying his motion to suppress evidence.

The evidence disclosed that Michael McCain, a police officer on duty at Hartsfield International Airport, was summoned to the Eastern Airlines ticket counter to check on a possibly stolen, or fraudulently obtained, airline ticket. On arrival he met Becky Webb, an Eastern Airlines ticket agent, and appellant. Webb showed McCain a computer report indicating that appellant had a ticket in his possession purchased by the unauthorized use of an American Express credit card issued to one David B. Andrews. McCain talked by telephone to Dale Palacheck, an American Express employee, who verified Webb’s information that appellant’s airline ticket had been purchased with a stolen credit card. The ticket had been mailed to appellant at an address in Philadelphia, Pennsylvania. Appellant was advised that he was suspected of fraudulently purchasing and possessing an airline ticket, and was advised of his constitutional rights. He was then taken to the precinct by McCain and another police officer. McCain again telephoned Palacheck, who stated that American Express would prefer charges against appellant for fraudulent use of a credit card. Appellant was then advised formally that he was under arrest on the charge by American Express. While conducting an inventory search of a bag in appellant’s possession, McCain found a small package containing suspected cocaine in a shoe that was in the bag. Appellant was again advised of his rights and after stating that he understood his rights, he told McCain that he had obtained the cocaine at the Miami Airport. When asked if he had any more cocaine in his possession, appellant gave McCain two small foil packages that he took out of his billfold. McCain testified that the police are required to inventory an arrestee’s personal belongings, as the belongings must be turned in and accounted for.

Appellant argues that his arrest was unlawful and thus, the subsequent search and seizure of the cocaine was unlawful. Appellant argues that because any credit card offense occurred in Pennsylvania, not in Georgia, the police had no probable cause to arrest him.

An arrest for a crime without a warrant may be made by an officer if an offense is committed in his presence, or within his immediate knowledge. OCGA § 17-4-20 (a). Clearly, under the evidence presented McCain had sufficient personal knowledge that appellant possessed an airline ticket purchased by use of a stolen credit card to justify arresting appellant without a warrant. See Humphrey v. State, 231 Ga. 855, 859 (1) (204 SE2d 603) (1974); Waller v. State, 134 Ga. App. 886, 887-888 (1) (216 SE2d 637) (1975). Since appellant’s arrest was lawful the search of items within his immediate possession was lawful, not only as a search incident to a lawful arrest, Humphrey, supra, but also as part of an accepted police practice to inventory an arrestee’s personal effects, turn them in and account for them. Horton v. State, 171 Ga. App. 450, 451 (1) (319 SE2d 905) (1984).

As to appellant’s argument that there was no probable cause to arrest him, we have held that “ ‘the reasonable cause necessary to support an arrest does not demand the same strictness of proof as proof of guilt upon the trial. Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been committed.’ ” Moore v. State, 174 Ga. App. 826, 827 (1) (331 SE2d 115) (1985). The facts presented to McCain by Webb and verified by Palacheck would certainly warrant a belief by a reasonable man that a crime had been committed. It was not McCain’s function to determine whether jurisdiction for the offense lay in Pennsylvania or Georgia, as jurisdiction of offenses is a question for the courts, not the arresting officer. We stated in Horton, supra, where there was a question as to whether Horton was an aider and abettor at the time of his arrest: “We will not hold as a matter of law that under such circumstances the conclusion by the arresting officer that Horton was at least facially an aider and abettor in a felony was unreasonable.” Here, as in Horton, McCain’s conclusion that appellant had at least facially committed an offense was reasonable. Accordingly, the trial court did not err by denying appellant’s motion to suppress.

Decided June 8, 1987.

Thomas M. Martin, for appellant.

Robert E. Keller, District Attorney, Clifford A Sticker, Albert B. Collier, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    74497.
    GAYLOR v. JAY & GENE’S CHRYSLER-PLYMOUTH-DODGE, INC.
    (358 SE2d 655)
   Banke, Presiding Judge.

The appellant, John C. Gaylor, sued the appellee, Jay & Gene’s Chrysler-Plymouth-Dodge, Inc., to recover in tort for personal injuries he allegedly suffered at the hands of the appellee’s used car sales manager, Wayne Hamm. The appellant contends that while he was working under Hamm’s immediate supervision as a car salesman in the appellee’s employ, Hamm asked him if he had ever finger wrestled before and then, despite his protestations that he did not want to finger wrestle, grabbed one of his hands, locked fingers with him, and twisted and broke one of his knuckles. Although Hamm was named as a defendant below, he is not a party to the present appeal.

The appellee raised several defenses to the appellant’s claim, among them that it fell within the exclusive province of the Workers’ Compensation Act and therefore was not actionable in tort. See generally OCGA § 34-9-11. The appellant thereupon filed a workers’ compensation claim, which was ultimately denied by the board for the stated reason that “claimant was injured by the willful act of the third person directed against him in a form of play and it was not a part of claimant’s employment, and it did not advance [the employer’s] business in any fashion whatsoever.” The appellee then moved for and was granted summary judgment in the present action on the ground that Hamm’s alleged misconduct could not, under these circumstances, be imputed to the appellee under the doctrine of respondeat superior. This appeal followed. Held:

Although Hamm testified that the appellant’s involvement in the finger-wrestling contest was voluntary and consensual, we are, for purposes of this appeal, bound by the appellant’s testimony to the contrary. “On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden. . . .” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973).

Similarly, the affidavits submitted by the appellee to establish that “horseplay” in general and finger wrestling in particular were not within the scope of Hamm’s duties as the used car manager create, at most, a material factual conflict on that issue. In his deposition, Hamm testified that although such “horseplay” among the employees was not a “normal, . . . everyday occurrence,” it did happen with some degree of regularity, “maybe once a week or maybe once every two months.” More importantly, in response to questioning on the issue of whether such conduct was forbidden by his superiors, he testified as follows: “You know, being a manager, I was the used car sales manager at the time, you know, you are trying to keep a rapport with your sales people and you have to keep them sort of motivated and pumped up and sometimes that entails joking with them a little bit or keeping them pumped up and, you know, you play around with them a little bit to get some common ground to get the guy to feel good and you joke around with them a little bit. It’s just part of doing business, you know.”

We find this testimony amply sufficient to create a material factual conflict on the issue of whether Hamm’s alleged misconduct occurred within the scope of his employment and in furtherance of the appellee’s business. See generally OCGA § 51-2-2. The fact that the alleged tort was intentional rather than negligent does not, in and of itself, preclude the doctrine of respondeat superior from being considered applicable. “The master is liable for the willful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will.” Frazier v. Southern R. Co., 200 Ga. 590 (2) (37 SE2d 774) (1946). Accord Ledman v. Calvert Iron Works, 92 Ga. App. 733 (89 SE2d 832) (1955). Nor does the “fellow-employee” doctrine operate, as a matter of law to insulate the appellee from liability, since it may reasonably be inferred from Hamm’s testimony that he believed that engaging in occasional horseplay with the employees to keep them “pumped up” constituted a part of his supervisory responsibilities. Under such circumstances, a jury might reasonably conclude that he was acting as a “vice-principal” rather than a fellow servant. Accord Wiley v. Ga. Power Co., 134 Ga. App. 187 (2) (213 SE2d 550) (1975), overruled on other grounds in Georgia Power Co. v. Busbin, 242 Ga. 612, 615 (250 Ga. 442) (1978). See generally OCGA § 34-7-21; Maxwell v. Harrell, 115 Ga. App. 97 (1) (153 SE2d 653) (1967).

Decided June 8, 1987.

Douglas L. Breault, for appellant.

Joseph L. Waldrep, J. Madden Hatcher, Jr., for appellee.

Finally, we must reject the appellee’s apparent contention that if Hamm was acting within the scope of his employment when the injury occurred then the injury must be deemed to have occurred out of and in the course of the appellant’s employment, with the result that workers’ compensation is his exclusive remedy. It is conceivable, at least, that a jury could conclude that although Hamm was acting in the performance of what he perceived to be his employment duties at the time the injury occurred, the appellant was not engaged in any work-related activity. Furthermore, it strikes this court that, having successfully opposed the appellant’s application for workers’ compensation benefits on the ground that his injuries were not compensable under the Act, the appellee is not now in a position to assert as a defense to the present claim that workers’ compensation is the appellant’s exclusive remedy.

Judgment reversed.

Carley and Benham, JJ., concur.

       Subsequent to that decision, the appellee’s general liability insurer filed a declaratory judgment action against the appellee and its workers’ compensation insurer, seeking to be relieved of the responsibility of defending the present action. The lower court ruled against the liability insurer in that action, and that ruling was recently upheld by this court on appeal. See Universal Underwriters Ins. Co. v. Georgia Auto. Dealers’ &c. Fund, 182 Ga. App. 595 (356 SE2d 686).


text:
    74568.
    SHANKWEILER v. McCALL PROCTER/DENSHAM, LTD.
    (358 SE2d 657)
   Banke, Presiding Judge.

The appellant employment agent sued the appellee in quantum meruit to recover compensation for his alleged services in procuring an employee hired by the appellee. The appellee was granted summary judgment based on the appellant’s failure to respond to certain requests for admissions, and the appellant filed this appeal.

Decided June 8, 1987.

Daniel W. Latimore, Jr., for appellant.

David R. Kam, for appellee.

Pursuant to OCGA § 9-11-36, if a party served with a request for admission neither files a timely response thereto nor moves to withdraw the admission resulting from his failure to do so, the matter stands conclusively admitted. Albitus v. Farmers &c. Bank, 159 Ga. App. 406 (283 SE2d 632) (1981); American Cyanamid, Co. v. Allrid, 176 Ga. App. 831 (338 SE2d 14) (1985).

The cardinal rule on summary judgment is to ascertain if there is an issue of fact, not to resolve disputed fact issues. See Rasmussen v. Nodvin, 174 Ga. App. 203, 205 (4) (329 SE2d 541) (1985). Since, in failing to respond to the appellee’s requests for admissions, the appellant conclusively admitted both that the appellee had never contacted him with regard to securing an employee and that the appellee was not indebted to him, it necessarily follows that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    73831.
    PAPPAS et al. v. HILL-STATON ENGINEERS, INC. et al.
    (358 SE2d 625)
   Deen, Presiding Judge.

Appellants’ son was killed while working in proximity to high-voltage lines owned and maintained by the Troup County Electric Membership Corporation (EMC), not a party to this appeal. The decedent was an employee of appellees Hill-Staton Engineers, Inc. (Hill-Staton), of which appellee Thomas J. Staton was owner and chief executive officer, and was engaged in the duties of his job when the fatal incident occurred. Appellants brought a wrongful death action against Staton, Hill-Staton, and the EMC, alleging negligence and violation of the Crane Act, OCGA § 46-3-30 et seq., against EMC and violation of the Crane Act against Hill-Staton and Staton. The latter two ap-pellees moved for summary judgment on the basis that a cause of action under the Crane Act is barred by the “exclusive remedy” provision of the Workers’ Compensation Act, OCGA § 34-9-11. The trial court granted the motion, and the parents, Pappas and Williams, appeal from this judgment, alleging that the trial court erred in holding that the Crane Act is superseded by allegedly conflicting provisions in the Workers’ Compensation Act. OCGA § 34-9-1 et seq.

Portions of the Crane Act directly relevant to the issue on appeal are OCGA §§ 46-3-31; 46-3-32; 46-3-33; and 46-3-39. Subsection 31 of the Crane Act, OCGA § 46-3-30 et seq., provides: “No person or his agent shall require or permit any employee to perform any act prohibited by Code Section 46-3-32 unless and until danger from accidental contact with high-voltage lines has been effectively guarded against in the manner prescribed in Code Section 46-3-32.” OCGA § 46-3-32 prescribes certain protective measures to be taken by the owner or operator of the line (here, EMC); OCGA § 46-3-33 mandates that “the person or persons responsible for the work to be done [here, Hill-Staton and Staton] shall promptly notify the owner or operator of the high-voltage lines of the work to be done and [the owner or operator] shall thereupon be responsible for the completion of the safety measures which are required by Code Section 46-3-32. . . .” It is undisputed that neither Staton nor Hill-Staton provided the EMC with the notice required by OCGA § 46-3-33.

Appellees contend, however, that the Crane Act does not apply to any of the defendants because the Workers’ Compensation Act bars “all other rights and remedies ... , at common law or otherwise, on account of such injury, loss of service, or death. ...” OCGA § 34-9-11. See also Ga. L. 1980, p. 1145, § 2; Ga. L. 1974, p. 1143, § 1; Ga. L. 1972, p. 929, § 1; Ga. L. 1920, p. 167, § 12. On its face, then, the exclusive remedy provision is not confined to rights at common law but applies to all rights and remedies which might otherwise be available to the employee as against the employer. The parties to this action have stipulated and agreed that workers’ compensation benefits were properly paid by the employer as a result of the death of appellants’ son.

The Crane Act imposes certain safety standards not only upon employers of workers performing certain acts in proximity to hazardous high-voltage lines but also upon the owners and operators of those lines. This Act creates a theory of liability against owners and operators for violation of the duties imposed by the Act. Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145) (1983); Savannah Elec. &c. Co. v. Holton, 127 Ga. App. 447 (193 SE2d 866) (1972). Moreover, the Crane Act imposes criminal penalties upon any person who violates any provision of the Act. These functions and purposes of the Crane Act would be unaffected by a ruling that the Workers’ Compensation Act bars any action pursuant to this statute against an employer for an injury which is compensable under the Workers’ Compensation Act. Furthermore, the Crane Act may apply to those employers who are excluded from the provisions of the Workers’ Compensation Act. In Savannah Elec., supra, this court declared, “an employer would be negligent per se vis-a-vis an employee if it violated a provision of the Act.” Id. at 450. It should be noted that the Savannah Elec, case involved a claim against the owner of the power line and not against the injured employee’s employer. Moreover, enforcement of the workers’ compensation bar is not inconsistent with our pronouncement in that case. If negligence is shown, an employee may recover damages in tort from an employer not covered by the Workers’ Compensation Act. However, the negligence of an employer covered by the Workers’ Compensation Act is not actionable since, by statute, the sole remedy available to the injured employee is recovery of workers’ compensation benefits.

A survey of other jurisdictions reveals the general rule to be that in the absence of specific statutory provisions making an exception to workers’ compensation laws for injuries sustained by failure of the employer to comply with safety laws or regulations, such failure does not affect the rule as to exclusive remedy. 101 CJS, Workmen’s Compensation, § 928. Generally, the exclusive remedy provision of the workers’ compensation laws relieves the employer not only of common law liability but also of statutory liability under state and federal statutes. See, e.g., Crosby v. Regional Utility Bd., 400 S2d 1024 (Fla. Dist. Ct. App. 1981) (where an action against an employer pursuant to the Florida Hazardous Occupations Act was held to be barred by the exclusive remedy provision of that state’s Workers’ Compensation Act); Ramos v. Broadway Maintenance Corp., 51 AD2d 911 (381 NYS2d 62) (1976) (where the employee’s claim for damages due to the employer’s alleged violation of the Labor Law was held to be barred by the New York Workers’ Compensation Act); Gordon v. Burgess Constr. Co., 425 P2d 602 (Alaska 1967) (where an action by the employee pursuant to the Alaska Defective Machinery Act was held to be barred by that state’s Workers’ Compensation Act).

In some jurisdictions, exceptions to this general rule are expressly provided by statute. For example, the workers’ compensation law of Arizona permits the employee to make an election to bring either a compensation claim or a claim at common law against an employer for wilful misconduct or intentional injury. Ariz. Rev. Stat. Ann. § 23-1022 (A) & (B) (1956). Other states grant a right to bring an action in tort to recover the excess of damages over the benefits allowed where the employee was injured by wilful or intentional conduct of the employer. See, e.g., W. Va. Code § 23-4-2 (b) (1966); Wash. Rev. Code § 51.24020 (1981). Other states impose a percentage increase in the workers’ compensation award where the employer has failed to comply with statutory duties. See, e.g., Ark. Stat. Ann. § 81-1310 (d) (1976); S. C. Code Ann. § 42-9-70 (1976). The Georgia Workers’ Compensation Act makes no statutory exception to the exclusive remedy provision. That section of the Workers’ Compensation Act setting forth the exclusive remedy has been amended and re-enacted on several occasions since the Crane Act was enacted in 1960. It would be improper to declare the Crane Act to be an exception to the longstanding exclusive remedy provision.

Decided May 28, 1987

Rehearing denied June 9, 1987

James C. Carr, Jr., Gene Mac Winburn, John J. Barrow, for appellants.

Robert C. Martin, Jr., Ronald W. Self, for appellees.

Moreover, to recognize the Crane Act as a remedy available to an employee in addition to benefits imposed by the Workers’ Compensation Act would make substantial, if not devastating, inroads in the workers’ compensation scheme. The Crane Act is merely one of several safety standards administered by the Commissioner of Labor. For example, OCGA § 34-1-1 establishes certain safety requirements for scaffolding and staging design. Like the Crane Act, violation of the scaffolding regulations is a punishable criminal offense. Chapter 2 of Title 34 of the Official Code of Georgia Ann., Labor & Industrial Relations, grants to the Commissioner of Labor authority to promulgate safety rules and regulations. Criminal penalties are imposed for violations of rules and regulations promulgated by the Commissioner of Labor. OCGA § 34-2-13.

The trial court did not err in the instant case in holding that a cause of action against an employer under the Crane Act is barred by the Workers’ Compensation Act.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.