text:
    A89A0119.
    WORN v. WARREN.
    (382 SE2d 112)
   McMurray, Presiding Judge.

This is an action for damages for false arrest and malicious prosecution resulting in a jury verdict and judgment in favor of plaintiff Warren and against defendant Worn for $19,800. Following the denial of her motion for new trial, defendant appeals. Held:

1. Outside the presence of the jury, plaintiff proffered certain evidence to show the defendant’s propensity toward malice. Apparently, the proffer was, at least in part, in response to a motion in limine by defendant. The evidence consisted of 11 exhibits, each of which documented the course of criminal cases arising from previous warrants taken out by defendant over a period of years. All of these cases had been terminated by dismissal, nolle prosequi, or no bill. Defendant argued against the 11 exhibits on the grounds that they would raise numerous collateral issues, that the events involved were not similar to the case sub judice, and that the previous events were not closely related in time. The trial court ruled that the proffered evidence would be allowed and denied defendant’s “motion in limine to strike such.”

Thereafter, plaintiff elicited testimony from defendant acknowledging the previous warrants and the disposition of the cases. Defendant presented evidence that many of the warrants had been taken out pursuant to the advice of defendant’s attorney.

Subsequently, plaintiff elicited further testimony identifying the exhibits and tendered the exhibits into evidence. Defendant reasserted her earlier objection to the exhibits and the trial court did not admit the exhibits into evidence stating: “In an abundance of caution I’m not going to allow you to introduce them in evidence. There’s been testimony elicited from them, the Jury’s heard it, and I’m not going to let it go out to the Jury. I’m not going to admit them into evidence.”

Defendant now enumerates as error the admission of the evidence concerning the exhibits. “Evidence of other transactions or occurrences is admissible if it is relevant to the particular instance and does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise. See Ludwig v. J. J. Newberry Co., 78 Ga. App. 871 (2), 876 (52 SE2d 485); Security Life Ins. Co. v. Newsome, 122 Ga. App. 137, 138 (2) (176 SE2d 463); Terry v. Fickett, 199 Ga. 30, 31 (8), 38 (33 SE2d 163).” Charles Parrott & Assoc. v. Hunt, 167 Ga. App. 106, 109 (2), 110 (305 SE2d 879). “The relevancy of other occurrences and thus the admissibility of such evidence lies within the sound discretion of the trial court, and may have probative value if the conditions of the other occurrence are substantially similar and may explain the occurrence under examination by the jury. Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620 (4) (37 SE 873); Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231).” Reed v. Heffernan, 171 Ga. App. 83, 85 (1(a)) (318 SE2d 700).

Just as similar transactions are frequently admissible to show fraud (Ballard v. Turner, 147 Ga. App. 584, 585 (2) (249 SE2d 637)), as well as motive and intent (Terry v. Fickett, 199 Ga. 30, 38 (8) (33 SE2d 163)), we find no reason that such evidence should not be admitted when it provides probative evidence of malice. “ ‘The “malice” contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and “may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual.” ’ Darnell v. Shirley, 31 Ga. App. 764 (2) (122 SE 292) (1924).” Melton v. LaCalamito, 158 Ga. App. 820, 824 (2(c)) (282 SE2d 393). We find no abuse of the trial court’s discretion in permitting testimony regarding the warrants previously taken out by defendant.

2. The warrant taken out by defendant, upon which the case sub judice is predicated, charged plaintiff with theft by taking of a farm tractor. Defendant enumerates as error the trial court’s refusal to admit into evidence two exhibits which would have shown that plaintiff’s wife’s uncle had been indicted and had entered a plea of guilty to certain drug charges. Contrary to defendant’s contentions, her exhibits were irrelevant since they fail to prove or disprove any material fact at issue, thus the trial court did not err in excluding defendant’s exhibits from evidence. Scott Housing Systems v. Hickox, 174 Ga. App. 23 (329 SE2d 154); Williams v. Runion, 173 Ga. App. 54 (325 SE2d 441).

Defendant also enumerates as error the trial court’s sustaining an objection to a question posed to defendant on direct examination. However, since no proffer of the expected answer to the question was made, we find no error. State Hwy. Dept. v. Whitehurst, 106 Ga. App. 532 (1) (127 SE2d 501). This enumeration of error is without merit.

3. Next, defendant enumerates as error the following charge to the jury: “I charge you that the defendant may be liable for failure to investigate before instigating a criminal prosecution, where a reasonable person may have investigated and there may be liability for false imprisonment or malicious prosecution where a party directly or indirectly initiates a criminal prosecution without waiting for a police investigation.”

While it is uncontroverted that this charge accurately states the law (see Medoc Corp. v. Keel, 166 Ga. App. 615, 617 (2) (305 SE2d 134)), defendant contends that it should have been refused as not adjusted to the facts of the case and argues that the charge supplies plaintiff with a new cause of action, to wit: false imprisonment. We agree that the reference to false imprisonment in the charge should have been omitted. “If the plaintiff was arrested under a void warrant the action is for false imprisonment and if the warrant is valid malicious prosecution is the remedy.” Courtenay v. Randolph, 125 Ga. App. 581 (1) (188 SE2d 396). In the case sub judice, the pleading and evidence do not present an issue as to false imprisonment, therefore, the reference to this theory was inappropriate.

“ ‘ “An instruction containing a correct legal principle, though inappropriate to the case, if not prejudicial to the contention of the losing party, affords no sufficient reason for granting a new trial.” (Cits.)’ Rolan v. Rittenhouse, 107 Ga. App. 769 (3) (131 SE2d 112) (1963). ‘An irrelevant or inapplicable charge is not ground for reversal unless it is likely to have misled the jury or to have affected the verdict. (Cits.)’ Service Wholesale Co. v. Reese, 91 Ga. App. 366, 368 (3) (85 SE2d 625) (1955). See Bailey v. Todd, 126 Ga. App. 731 (9) (191 SE2d 547) (1972). ‘(T)he rule is that in consideration of allegedly erroneous charges this court must look to the charge in its entirety. (Cit.) If the charge as a whole is not misleading, there is no error. (Cits.)’ State Highway Dept. v. Davis, 129 Ga. App. 142, 144 (199 SE2d 275) (1973).” Anderson v. Copeland, 162 Ga. App. 611 (292 SE2d 472). Applying these principles to the facts of the instant case, we find no reversible error. The charge contains no other reference to “false imprisonment” and when viewed as a whole cannot be reasonably construed as authorizing an award of damages predicated on that theory.

Additionally, we find that the trial court did not mislead defendant as to what it intended, nor did the charge unduly highlight the absence of a police investigation of the case against plaintiff on the theft by taking charge. This enumeration is without merit.

4. Defendant enumerates as error the denial of her motion for continuance which was presented on the morning of the trial date. The motion was supported by a physician’s letter which stated that because of her physical condition defendant was unable to bear up under the stress of legal proceedings and that “if she continues on her present course I think she may be able to testify in approximately six months.”

Defense counsel failed to make the statement required by OCGA § 9-10-154 that he cannot safely go to trial without the presence of his client. In the cases of Wasson v. Cox, 176 Ga. App. 684 (337 SE2d 445), and Allen v. Brookshire, 169 Ga. App. 391 (1) (312 SE2d 862), there were similar failures of a party’s counsel to make the statement required by OCGA § 9-10-154 accompanied by an absence of evidence that the party was expected to improve so as to enable the party to be present at a future trial of the case. Defendant argues that the indication of probable improvement in the physician’s letter removes the case sub judice from the rule of Wasson v. Cox, supra, and Allen v. Brookshire, supra. We do not agree, as such would defeat the apparent intent of OCGA § 9-10-154 that the case proceed to trial without a providentially absent party where such may be accomplished without prejudice to the absent party. In other words, we do not view the absence of evidence, that the party was expected to improve so as to be present at a future trial, as essential to the holding in Wasson and Allen. The trial court did not err in denying defendant’s motion for continuance.

Decided April 10, 1989

Rehearing denied May 5, 1989

Coleman, Kitchens, Wolfson & Smith, James R. Smith, Jr., for appellant.

Gwendolyn A. Atkinson, A. D. Denton, for appellee.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A0227.
    BARKER v. THE STATE.
    (382 SE2d 115)
   McMurray, Presiding Judge.

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

1. Defendant was charged by separate indictments with the offense of child molestation involving different victims, defendant’s 12-year-old stepdaughter and her 12-year-old female friend. Both offenses were alleged to have occurred on April 12, 1986. On that date defendant, a truck driver, drove from his house in Alabama to the place of business of a trucking company in Fayette County, Georgia, in order to pick up a load he was to drive to Seattle. Defendant was accompanied on this trip by his wife, 12-year-old stepdaughter, and by a 12-year-old female friend of his stepdaughter’s. Upon arriving at the trucking company, the load defendant was to pick up was not there so the four waited in defendant’s truck. At some point during this wait, defendant and his stepdaughter went to get sodas. As the two started back to defendant’s truck, defendant stopped his stepdaughter, “and from the back he stuck his hands down [her] pants, and he was kissing [her] on the back of the neck. ... He put his arm around [her] waist. . . [f]rom behind . . . [and] put [his hand] down [her] pants.” After putting his hand down his stepdaughter’s pants, defendant put his hand between her legs and “kind of rubbed a little.” The stepdaughter pulled defendant’s hand out and walked away.

Subsequently, the stepdaughter and her female friend needed to go to the bathroom, but there was no bathroom, so they had to go behind another truck. During the course of doing this, the stepdaughter’s friend wet a spot on her pants and would not go back in the truck. After the stepdaughter unsuccessfully attempted to get her friend to return to the truck, defendant came out and got her. Defendant told the stepdaughter’s friend that it was okay, that everybody had accidents and started kissing her “more than once” on the lips in a way different from the way her mother and father kissed her. Defendant picked the stepdaughter’s friend up and lifted her back into the passenger seat of the truck. At this time defendant’s wife and stepdaughter were in the back of the truck cab in the sleeper. Defendant sat in the driver’s seat and lay down, putting his head in the lap of the stepdaughter’s friend, who was wearing blue jeans, and began rubbing with his left hand between her legs “[o]n the front of [her] private body.” Defendant continued to rub there for a while and then left to make a telephone call.

Upon the trial of the two indictments, the jury acquitted defendant of the charge arising from his conduct toward the stepdaughter and found defendant guilty of the offense being appealed, arising from defendant’s conduct toward the stepdaughter’s friend. The transcript reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that defendant was guilty of the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Thompson v. State, 187 Ga. App. 563, 564 (370 SE2d 819).

2. Following the return of the jury’s verdict, defendant requested that the jury be polled. Defendant contends the trial court erred in failing to either require further deliberation or discharging the jury when one juror, during the poll, stated that she had changed her mind regarding the verdict. However, a review of the transcript reveals that the juror was merely confused and after some colloquy with the court stated unequivocally that the verdict of guilty of child molestation was her verdict. We find no merit in defendant’s contention that the juror was inadvertently coerced to acquiesce in the verdict.

Also, defendant failed to raise in the trial court by objection or motion, any issue in regard to this incident. An issue raised for the first time on appeal presents nothing for review. Smith v. State, 187 Ga. App. 322, 324 (4) (370 SE2d 185); Buckner v. State, 186 Ga. App. 376, 377 (367 SE2d 277).

3. Following the direct examination of defendant, the trial court posed the following questions to defendant. “THE COURT: You said you didn’t touch [the stepdaughter’s female friend] in any spot. Does that mean you didn’t kiss her either? [DEFENDANT]: No, I didn’t put my hands on her. THE COURT: You heard the child testify that you kissed her on the mouth in a way that her momma and daddy don’t kiss. What do you say about that? I don’t think [defense counsel] asked you about that. [DEFENDANT]: I didn’t — I didn’t — I misunderstood it, I’m sorry. I didn’t put my hands on her nowhere that, you know, you wouldn’t put yours or I wouldn’t put mine. THE COURT: Well, did you kiss her? [DEFENDANT]: I kissed her when I picked her up and told her that we loved her and she knew that.” On the basis of this questioning by the trial court defendant moved for a mistrial, contending that the questions amounted to an expression of opinion as to what had been proved and intimated an opinion that defendant could be convicted for this conduct.

“The trial court may address a leading question to a witness in order to elicit the truth or clarify an issue, provided that he does not violate the statutory prohibition set forth in OCGA § 17-8-57 (formerly OCGA § 17-8-55) against expressions or intimations of opinion as to what has or has not been proved or as to the guilt of the accused. See Smith v. State, 11 Ga. App. 89 (7) (74 SE 711) (1912). See also Deese v. State, 137 Ga. App. 476 (2) (224 SE2d 124) (1976).” Cannon v. State, 179 Ga. App. 142, 143 (2) (345 SE2d 623).

The questions posed by the trial court in the case sub judice clearly did not constitute the expression or intimation of such an opinion. This enumeration is without merit.

4. Defendant contends the trial court erred in permitting a witness to testify in violation of the rule of sequestration after having heard nearly all of the testimony, without proper limiting instructions. However, defendant made no objection at trial to the calling of the witness or to the trial court’s instruction on the effect of the non-sequestration. An issue raised for the first time on appeal presents nothing for review. Smith v. State, 187 Ga. App. 322, 324 (4), supra; Buckner v. State, 186 Ga. App. 376, 377, supra.

5. Defendant contends the trial court erred, after in camera inspection, in failing to require the state to produce to defendant’s counsel written statements by the alleged victims which may have affected the credibility of such victims’ testimony at trial. There was no showing by defendant that the State failed to provide exculpatory evidence contained in its files which would probably result in a different verdict. In the absence of such a showing, this enumeration presents nothing for review. Davis v. State, 172 Ga. App. 787, 788 (1) (324 SE2d 767); Camp v. State, 162 Ga. App. 857, 858 (5) (293 SE2d 389).

6. Defendant enumerates as error the denial of his motion for separate trials of the two separate indictments. “[A] defendant has a right to severance ‘where the offenses are joined solely on the ground that they are of the same or similar character . . . “because of the great risk of prejudice from a joint disposition of unrelated charges.” ’ Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752); Booker v. State, 231 Ga. 598 (203 SE2d 194). However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.’ Dingler, supra; Owens v. State, 233 Ga. 905 (213 SE2d 860); Wingfield v. State, 231 Ga. 92, 98 (200 SE2d 708).” Coats v. State, 234 Ga. 659, 662 (4) (217 SE2d 260). The evidence shows that both of the charges against defendant were predicated upon acts, closely connected in time and place, which constituted parts of a single scheme or plan to satisfy the sexual desires of the defendant. The trial court did not err in denying defendant’s motion for separate trials.

Decided April 10, 1989

Rehearing denied May 5, 1989

Ballard, Slade & Ballard, Charles T. Ballard, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

Car ley, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A0250.
    BLANTON v. THE STATE.
    (382 SE2d 133)
   Sognier, Judge.

James Ernie Blanton was indicted on two counts of child molestation and two counts of enticing children for indecent purposes. A jury found Blanton guilty on all four counts, but the trial court merged the counts of child molestation and enticing children for indecent purposes stemming from the same incidents. Appellant appeals from his conviction.

The record reveals that on at least two different occasions, while driving his truck in residential areas appellant stopped and exposed himself to a child under 14 years of age and asked the child to get in the truck and go with him. The children described appellant and the truck, and appellant was apprehended after the mother of one of the children noticed a truck which matched the description her child had given, followed the truck, wrote down the tag number, and gave the information to the sheriffs department. After appellant was arrested, he gave a statement in which he admitted exposing himself to the children.

1. Appellant enumerates the general grounds, arguing that the crime of child molestation requires specific intent, which was not shown by the State. OCGA § 16-6-4 (a) provides that “[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” In this case, the trial court charged the jury that they must find an intent on appellant’s part to arouse his own sexual desires in order to convict appellant of child molestation. The court also instructed the jury that they “may find such intention, or the absence thereof, upon a consideration of words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.” At appellant’s request, the trial court also charged the jury as to public indecency.

A reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. Thomas v. State, 176 Ga. App. 771, 773 (337 SE2d 344) (1985). “[T]he intent with which an act is done is peculiarly a question of fact for determination by the jury and although a finding that the accused had the intent to commit the crime charged may be supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground. [Cits.]” Mallette v. State, 119 Ga. App. 24, 27 (165 SE2d 870) (1969). Here the jury was permitted to infer intent from appellant’s actions, including the fact that he asked the children to get in his truck and go for a ride with him. The jury decided the question of intent adversely to appellant, and we cannot say their determination was contrary to the evidence or clearly erroneous. The evidence in this case was sufficient to sustain the verdict.

2. Appellant contends the trial court erred by refusing to allow a psychologist to give his opinion that, in exposing himself, appellant did not act with sexual intent. The record reveals that Dr. James Thomas, a licensed clinical psychologist, testified that he interviewed appellant, administered certain psychodiagnostic tests, and concluded that appellant was an exhibitionist. Although Dr. Thomas was not permitted to respond when asked on redirect examination whether, based on his information, training, and knowledge “he had formed any opinion as to whether or not [appellant] had sexual intent in the act he was performing here,” he had already responded on direct examination to the question “[w]as there any sexual desire or sexuality involved in the acts that [appellant] committed, in your opinion?” by saying: “[n]o.” Accordingly, although it may have been error to prevent Dr. Thomas’ answer to the question on redirect examination, see Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981), we are unable to perceive any harm to appellant, as the same evidence had already been admitted without objection, and “it is well established that ‘(a)n appellant must show harm as well as error to warrant reversal. (Cit.)’ [Cit.]” Raines v. State, 186 Ga. App. 239, 242 (4) (c) (366 SE2d 841) (1988).

3. We find no merit in appellant’s contention that the trial court erred by charging the jury that the required intent could be inferred by the jury from appellant’s actions. Appellant has failed to cite any authority for this enumeration, and it is thus deemed abandoned pursuant to this Court’s Rule 15 (c) (2). Smith v. State, 187 Ga. App. 322, 325 (7) (370 SE2d 185) (1988). Moreover, the charge was a correct statement of the law, taken from OCGA § 16-2-6, and the trial court also instructed the jury that to convict appellant of child molestation they must find beyond a reasonable doubt that appellant had the specific intent to arouse his own sexual desires. We find no error here. See generally Banks v. State, 178 Ga. App. 54, 55 (3) (341 SE2d 859) (1986).

4. Appellant finally asserts as error the ineffectiveness of his trial counsel in failing to communicate to him the State’s offer of a plea bargain. We find that in this regard appellant has failed to meet the two-part test set forth in Strickland v. Washington, 466 U. S. 668, 687-688 (104 SC 2052, 80 LE2d 674) (1984). Strickland requires that appellant show both that counsel’s representation fell below the objective standard of reasonableness, and a reasonable probability that, but for the counsel’s ineffectiveness, the result of the proceeding would have been different. In Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988), where the Georgia Supreme Court examined a similar allegation of failure to communicate the offer of a plea bargain, the court concluded that in such cases the second part of the test can “only be shown by some indication that the defendant was amenable to the offer made by the state.” Id. at 648 (2) (b). After reviewing various methods adopted by other jurisdictions to determine whether the defendant would have been amenable to the State’s offer had it been communicated (including the assumption that the defendant would have accepted any offer more favorable than the eventual outcome, and the requirement that the defendant show both that he had evidenced an interest in pleading prior to the verdict and that he would have accepted the offer had he learned of it), the Supreme Court decided that it preferred “to examine the facts of each case and grant relief where there is at least an inference from the evidence that the defendant would have accepted the offer as made or something similar.” Id. (Footnote omitted.)

Pretermitting the question of whether appellant has satisfied the first part of the Strickland test, he has not satisfied the second part because there is no inference from the evidence that he “would have accepted the offer as made or something similar.” Appellant has made no evidentiary showing whatsoever on this question, other than an affidavit stating that he learned after the trial that an offer had been made and that it had not been communicated to him. There is no indication, even in appellant’s affidavit, that he would have accepted the offer, and the record does not indicate what the offer was or whether it was substantially more favorable than the eventual outcome. We also note that this case, having been filed originally in the Supreme Court, was transferred to this court when the Supreme Court rejected this enumeration, citing Lloyd, supra. Accordingly, we find no ground for reversal here.

Decided April 19, 1989

Rehearing denied May 5, 1989

Tisinger, Tisinger, Vance & Greer, Paul E. Weatherington, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0554.
    ANTONONE v. ATLANTIC MUTUAL FIRE INSURANCE COMPANY.
    (382 SE2d 126)
   Banke, Presiding Judge.

The appellant owns certain rental property which was damaged by fire. The property was insured against such damage by the appellee insurance company. The appellant retained Zeno Moore Construction Company to repair the damage, executing, on February 3, 1986, an authorization printed on that company’s letterhead stating: “I. . . authorize the insurance company to pay Zeno Moore Construction Company direct. If for any reason the check for payment should come to me . . ., I. . . hereby agree to pay Zeno Moore Construction Company immediately upon receipt of the check from the insurance company. It has been made clear to me . . . that Zeno Moore Construction is working for me . . . and not the insurance company or the adjuster.”

On March 21, 1986, the appellant signed a sworn “proof of loss” statement, making claim against the appellee insurance company for $19,869.88 in benefits as full compensation for the damage to the. property. By check dated March 25, 1986, the appellee paid Zeno Moore Construction Company precisely this amount. The appellant subsequently filed the present action against the appellee, alleging that it had breached the terms of the policy by paying the contractor directly and by failing to obtain his approval of the repair work before paying the contractor. He further alleged that his policy had been improperly cancelled by the company after the occurrence of the fire loss. The trial court granted summary judgment to the insurer with respect to each of these claims; and, acting pro se, the appellant filed the present appeal. Held:

Decided April 17, 1989

Rehearing dismissed May 5, 1989.

Angelo A. Antonone, pro se.

J. Scott Vaughan, Kenneth L. Royal, for appellee.

1. The appellant contends that the appellee breached the authorization which he (the appellant) had executed in favor of the contractor by failing to supervise, certify, or inspect the contractor’s work to make sure it had been performed properly. The trial court properly determined that the document in question imposed no such obligation on the appellee.

2. The appellant’s second enumeration of error concerns an alleged failure of communication either between himself and his attorneys or between his attorneys and the trial court, concerning the fact that the appellee had not cancelled the insurance policy but rather had simply failed to renew it. As this matter does not involve any ruling by the trial court, it presents nothing for review on appeal. See generally Isaacson v. House, 216 Ga. 698, 699 (2) (119 SE2d 113) (1961).

3. To the extent that the appellant’s third enumeration of error reflects a contention that he did not sign the proof of loss, it is directly negated by the uncontroverted evidence of record, including his own testimony. To the extent that this enumeration of error concerns another asserted misunderstanding or miscommunication between himself and his attorneys, it presents nothing for review for the reason stated in Division 2, supra.

4. The appellee has moved the court to impose a penalty against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal. While the issue was not directly presented by any of his enumerations of error, we find at least arguable merit to the assertion made by the appellant in the trial court that the insurance company was under a duty to obtain his approval of the manner in which the work had been performed before paying the contractor. Accordingly, being reluctant to penalize a pro se litigant for what may have been a deficiency in his brief rather than a deficiency in the merits of his case in the court below, we deny the motion for damages.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0601.
    PINSON v. HARTSFIELD INTERNATIONAL COMMERCE CENTER, LTD.
    (382 SE2d 136)
   Banke, Presiding Judge.

The appellee, Hartsfield International Commerce Center, Ltd., filed suit against the appellant, William Pinson, seeking to recover damages for Pinson’s alleged breach of a commercial lease agreement. Pinson had signed the lease as “president and owner” of the tenant, which was identified as “Pinson Air Freight, Inc.” However, the complaint alleged that there was no corporation by that name and further alleged that “ ‘Pinson Air Freight, Inc.’ apparently was a fictitious or unregistered trade name used by [Pinson] for his freight business conducted in Georgia.” Pinson denied any personal obligation on the lease, asserting that he had signed solely in his representative capacity as president of “Pinson Air Freight of Chattanooga, Inc.” At the conclusion of a non-jury trial, the court determined that Pinson had “intended to act in his own capacity in transacting business at the location in question” and consequently entered judgment in favor of the appellee. Pinson appeals.

It is undisputed that Pinson is in fact the president and sole shareholder of a Tennessee corporation named Pinson Air Freight of Chattanooga, Inc., which was formed in 1973 and is headquartered in Chattanooga, Tennessee. In conducting its day-to-day business operations, this company has routinely dropped the words “of Chattanooga” from its name, referring to itself as “Pinson Air Freight, Inc.,” or sometimes simply as “Pinson Air Freight.” While the company has never registered either of these abbreviated names as corporate trade names, neither has Pinson ever registered them as personal trade names.

In 1985, Pinson was contacted at the corporate headquarters of Pinson Air Freight of Chattanooga, Inc., by A. C. Dorminy, who sought to interest him in renting certain commercial real estate owned by the appellee in Clayton County, near Hartsfield International Airport in Atlanta. Dorminy was both a general partner of the appellee (which is a limited partnership) and vice-president of a corporation known as Southeast Management and Leasing Corporation (hereafter referred to as Southeast), which was formed by the general partners of the appellee to manage the affairs of the limited partnership. Following a period of negotiations between Pinson and the appellees’ agents, conducted via communications to and from Pinson’s Chattanooga office, the lease agreement which is the subject of this litigation was executed on July 30, 1985. The agreement was drafted by the appellee. Although it identified “Pinson Air Freight, Inc.,” as the tenant, it provided, as that company’s address, the Chattanooga address of Pinson Air Freight of Chattanooga, Inc.

Pinson’s air freight firm, by whatever name, took possession of the leased premises in June of 1986. During August or September of 1987, Dorminy asked Pinson to provide a personal guaranty of the tenant’s obligations under the lease, but Pinson refused. The premises were vacated in November of 1987; and Pinson Air Freight of Chattanooga, Inc., subsequently filed bankruptcy proceedings under Chapter 11 of the United States Bankruptcy Code. The appellee did not file a claim against the corporation in the bankruptcy proceedings, electing instead to file the present action against Pinson personally.

It is undisputed that all bills for the Atlanta operations of Pin-son’s air freight business, including the rental payments for the leased premises, were paid from Chattanooga with checks drawn on a Chattanooga bank. These checks identified “Pinson Air Freight, Inc.,” as the payor but listed, as the payor’s address, the Chattanooga address of Pinson Air Freight of Chattanooga, Inc. It is also undisputed that all of the income and expenses attributable to the Atlanta operations of the business were included on the federal income tax returns filed by Pinson Air Freight of Chattanooga, Inc., and that Pinson’s personal finances were not commingled in any way with those of the corporation.

In support of its position that Pinson was operating the Atlanta office in a personal capacity, the appellee produced evidence that Pin-son had submitted an application for a local business license for the Atlanta office in June of 1986, in which he had identified the name of the business as simply “Pinson Air Freight” and had put down his own name and home address in the space designated for “Name & Address of Owner(s).” Additionally, the appellee proved that Pinson Air Freight of Chattanooga, Inc., was not registered with the Georgia Secretary of State to do business in Georgia; that neither Pinson Air Freight nor Pinson Air Freight, Inc., had ever been registered as a trade name by Pinson Air Freight of Chattanooga, Inc.; and that Pin-son had previously been an officer in a Georgia corporation named Pinson Air Freight and Transport, Inc. However, Pinson testified that the latter corporation had been started by his father, that he had owned no stock in it, and that its assets had been sold to Pinson Air Freight of Chattanooga, Inc., in 1983. Held:

Although the concept of de facto corporations has been eliminated in this state by OCGA §§ 14-2-23 and 14-2-173, the doctrine of corporation by estoppel is still alive and well. See OCGA § 14-5-4; Cahoon v. Ward, 231 Ga. 872 (204 SE2d 622) (1974). “The general rule in this state is that a person who contracts or deals with a corporation as such will be estopped to deny its corporate existence in an action arising out of or involving the contract. Our appellate courts have stated many times that when a person enters into a contract with an entity purporting to be a corporation, and such entity is described in the contract by its corporate name, such person admits the legal existence of the corporation with reference to any action brought to enforce the contract, and for the purpose of that action will not be allowed to question the legality of the corporate existence.” Id. at 874.

In a situation where the existence of the corporate entity is questioned, the controlling factor in determining whether the estoppel doctrine applies is whether the entity on whose behalf the person entering into the contract purported to act had been issued a certificate of incorporation before the contract was executed. If not, then the contracting agent will be held personally liable for the obligations of the purported corporation thus incurred. See OCGA § 14-2-23; Don Swann Sales Corp. v. Echols, 160 Ga. App. 539 (287 SE2d 577) (1981); Echols v. Vienna Sausage Mfg. Co., 162 Ga. App. 158 (2) (290 SE2d 484) (1982). However, where the individual in question purported to act on behalf of a corporation which did in fact exist, the fact that the corporation’s name was incorrectly set forth on the contract will not necessarily result in the imposition of personal liability against him.

“ ‘An undertaking by an individual in a fictitious or trade name is the obligation of the individual.’ [Cit.] Similarly, ‘if a contract is entered into by an agent in the name of a nonexistent principal, the inference is that the agent is bound on it.’ [Cit.] However, a mere ‘misnomer of a corporation in a written instrument, or in a law, or in a judicial proceeding is not material or vital in its consequences, if the identity of the corporation intended is clear or can be ascertained by proof.’ [Cit.] ‘A corporate name usually consists of several words, and an omission ... of one or more is not so likely to confuse and mislead, or to hide the identity of the entity intended, as would be the case as to natural persons. The important thing is to determine what corporation the parties intended, for it is the intent of the parties that controls. Error in the use of the corporate name will not be permitted to frustrate the intent which the name was meant to convey, and to find out the identity of the corporation intended, resort may be had to evidence aliunde.’ [Cit.]” Hawkins v. Turner, 166 Ga. App. 50, 51-2 (303 SE2d 164) (1983). (Emphasis from original.)

Although there is no question in the present case that in negotiating the lease with Pinson the appellee’s agents thought they were dealing with a corporation, the appellee contends that “it can now claim otherwise since no such corporation existed.” We disagree that no such corporation existed. While it is true that no corporation named “Pinson Air Freight, Inc.,” existed, we believe, on the basis of Hawkins v. Turner, supra, that the evidence in this case established beyond dispute that the name “Pinson Air Freight, Inc.,” was used as a misnomer for Pinson Air Freight of Chattanooga, Inc., which did exist.

The individual sought to be held liable in Hawkins v. Turner, had executed a contract on behalf of a corporation identified as “Hawkins Plumbing Co., Inc.” As it turned out, there was no corporation by that name; but there was a corporation named “Hawkins Heating & Plumbing Co., Inc.,” of which the individual in question was the major shareholder. Although the name “Hawkins Plumbing Co., Inc.,” had not been registered by Hawkins Heating & Plumbing Co., Inc., as a trade name, we held that such an omission would not warrant the entry of summary judgment against the individual, concluding “that an agent who executes a contract using a misnomer of a corporation is not as a matter of law conducting business either in a fictitious or trade name or in the name of a nonexistent principal.” Id. at 52. (Emphasis from original.)

It appears without dispute from the evidence presented at the trial of the present case that the operations being carried out at the leased premises were in fact the operations of a corporation. It further appears without dispute that Pinson was neither conducting business in this state in an individual capacity nor commingling his personal finances with those of his corporation. Under such circumstances, we find no basis for a finding that he contracted with the appellee in his personal capacity rather than as agent for a disclosed principal. We reject the appellee’s contention that such an inference may be drawn from the manner in which he (Pinson) completed the application for the local business license. Pinson’s identification of himself on that application as the owner of “Pinson Air Freight” was fully consistent with his testimony that Pinson Air Freight of Chattanooga, Inc., often did business under that name and that he owned 100 percent of the shares of the corporation. The appellee could not, in any event, have been misled by the license application, inasmuch as it did not become aware of the contents of the application until after the present litigation was initiated.

The appellee’s reliance on Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (3) (359 SE2d 920) (1987), is misplaced. There, the defendant sought to avoid individual liability for certain actions which, he maintained, he had undertaken in his capacity as president of a corporation known as ISC. We held that an inference that the defendant had been acting on his own behalf rather than as agent for a corporation could be drawn from the fact that the name ISC was registered as a trade name for himself and his sister. Accord Clement Plumbing &c. Co. v. Goodwin, 130 Ga. App. 245 (202 SE2d 684) (1973). In the present case there is no evidence that Pinson ever registered the names “Pinson Air Freight” or “Pinson Air Freight, Inc.,” as trade names for himself.

Similarly, no inference that Pinson was conducting the operations of his Atlanta office in an individual rather than a corporate capacity may be drawn from the fact that the corporation had failed to register with the Secretary of State to do business in Georgia. “[Although a] corporation may not maintain a suit in this state while it is not certified, ... it is not prevented from defending an action brought against it. In brief, the law denies it certain rights and privileges but does not deny its existence. Hence, the fact that [the corporation] was unauthorized [to do business in this state] within the meaning of the Georgia Business Corporation Code would not mean that the [appellant] was acting for a nonexistent principal.” Evans v. Smithdeal, 143 Ga. App. 287, 291 (238 SE2d 278) (1977).

Decided April 20, 1989

Rehearing denied May 5, 1989

Hiñe & Carroll, Paul T. Carroll III, William A DuPree IV, for appellant.

Davis, Kirsch & Wolfe, Dock H. Davis, for appellee.

There being no evidence from which it could reasonably be inferred that Pinson contracted with the appellee in an individual capacity rather than as an agent for a disclosed principal, we hold that his defense to the appellee’s claim was valid as a matter of law, with the result that the trial court erred in denying his motion for involuntary dismissal of the complaint. See generally OCGA § 9-11-41 (b).

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0660.
    MASSON v. THE STATE.
    (382 SE2d 139)
   Banke, Presiding Judge.

The appellant was convicted of possessing more than an ounce of marijuana in violation of the Controlled Substances Act. The contraband on which the conviction was based was seized during a search of the appellant’s residence conducted pursuant to a search warrant. The appellant contends on appeal that the contraband should have been suppressed because the affidavit presented in support of the application for the warrant failed to establish probable cause for a belief that marijuana would be found on the premises. Held:

The officer who seized the contraband testified without dispute that he had done so on the basis of a good-faith belief in the validity of the warrant; and neither the impartiality nor the integrity of the issuing magistrate have been challenged. Pursuant to the decision of the United States Supreme Court in United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), it follows that the trial court did not err in denying the motion to suppress. Accord Rodriguez v. State, 191 Ga. App. 241 (381 SE2d 529).

Decided April 20, 1989

Rehearing denied May 5, 1989

McAllister & Roberts, J. Dunham McAllister, for appellant.

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

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0265.
    FLOWERS v. KROGER COMPANY.
    (382 SE2d 184)
   Banke, Presiding Judge.

The appellant sued to recover for personal injuries which she allegedly sustained when she slipped and fell in a grocery store owned and operated by the appellee. This appeal stems from the trial court’s direction of a verdict in favor of the appellee storeowner at the close of the appellant’s case.

The appellant testified that as she approached a section of the produce department to obtain an artichoke, her path was blocked by two store employees who were “bagging” produce from a cart. She stated that when she asked to get an artichoke, one of the employees wheeled the cart out of her way and that she then slipped and fell upon stepping forward. She further testified that after falling she noticed that she was sitting in some “smashed up vegetable debris” consisting of the same type of produce as that being bagged by the employees and that there was a plastic bag present with the debris which was similar to the bags used by the store to wrap produce. A witness to the incident testified that the floor in the area where the appellant fell was not clean and that it looked like she fell on “vegetable matter.” There was no evidence concerning the length of time the debris had been on the floor. Held:

An owner or occupier of land is liable for damages to invitees caused by his failure to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1. “The basis of the proprietor’s liability is his superior knowledge, or his superior opportunity to discover a dangerous condition, as compared with the opportunity of his invitee.” Belk-Gallant Co. of LaGrange v. Cordell, 107 Ga. App. 785, 788 (131 SE2d 575) (1963). Where the alleged dangerous condition consists of the presence of a foreign substance on the floor, the proprietor’s superior opportunity to discover the substance may be established by evidence that an employee “ ‘was in the immediate area of the dangerous condition [who] could have easily seen the substance and removed the hazard.’ ” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). In order to make out a prima facie case under this theory, however, it must additionally be shown that the substance had been on the floor for a length of time sufficient to have enabled the employee to discover and remove it. Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985).

Decided May 5, 1989.

Wain & Miningham, Alan B. Wain, for appellant.

Douglas A. Wilde, Webb, Carlock Copeland, Semler & Stair, Kent T. Stair, for appellee.

It is inferable from the testimony of the appellant in this case that she slipped on vegetable debris which had been dropped to the floor by the store employees who were bagging the vegetables. Thus, this is an actual knowledge case rather than a “superior opportunity to discover” (or constructive knowledge) case, and it was therefore unnecessary for the appellant to produce evidence showing how long the debris had been on the floor. Accord Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339 (1) (373 SE2d 252) (1988). Compare Mitchell v. Food Giant, 176 Ga. App. 705, supra. We consequently hold that the trial court erred in granting the appellee’s motion for directed verdict.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0381.
    PENN et al. v. McELHENEY.
    (382 SE2d 185)
   Banke, Presiding Judge.

The appellants filed an action to quiet title to 50.28 acres of land located in Jasper County, Georgia. See generally OCGA § 23-3-61. The appellee answered and counterclaimed, claiming to have acquired title to the land through adverse possession. A hearing was held before a special master, whose recommendations were subsequently adopted by the trial court in an order setting forth the following findings of fact and conclusions of law: (1) That the appellants owned fee simple title to the property; (2) that the appellants were entitled to receive the proceeds from the sale of certain mineral deposits which had been removed from the property; (3) that the appellants were indebted to the appellee for real estate taxes the appellee had paid on the property over a period of several years; but (4) that the appellee was entitled to retain the proceeds from the sale of certain timber he had removed from the land, in the amount of $5,953.87. In this appeal, the appellants take issue with the latter portion of the trial court’s order. Held:

“[I]n an action to quiet title brought under OCGA § 23-3-60 et seq. . . . , the findings of the Special Master and adopted by the trial court will be upheld unless clearly erroneous. [Cit.]” Seignious v. MARTA, 252 Ga. 69, 71 (311 SE2d 808) (1984). The court determined that the appellants were not aware of their ownership of the property at the time that the timber was sold and consequently were doing nothing to manage the property. There was evidence that if the trees had not been removed, they would have become completely worthless within several months due to a pine beetle infestation, which would likely have spread to other timber on the property, rendering it worthless as well. Nevertheless, it does not follow that the appellee is entitled to retain the proceeds from the sale of this timber.

OCGA § 51-12-50 fixes the measure of damages for conversion of timber as follows: “Except as provided in Code Section 51-12-51, where plaintiff recovers for timber cut and carried away, the measure of damage: (1) Where defendant is a wilful trespasser, is the full value of the property [i.e., the timber] at the time and place of demand or when an action is brought without deduction for . . . labor or expense; (2) Where defendant is an unintentional or innocent trespasser . . . , the value at the time of conversion, less the value he . . . added to the property.” It has been held that the foregoing provisions are also applicable in equitable proceedings wherein a timber conversion claim is asserted against one claiming title to the land through adverse possession. Towson v. Horn, 160 Ga. 697 (3) (128 SE 801) (1925).

It is apparent from the trial court’s findings that although the appellants were the true owners of the property, the taking of the timber by the appellee was predicated on a good-faith claim of right and did not constitute a wilful trespass. Thus, by the terms of the statute, the appellants were entitled to recover from the appellee the value of the timber at the time of its removal, less any value the appellee may have added to the property. See OCGA § 51-12-50 (2). Since the evidence of record was insufficient to enable the court to calculate what value, if any, the appellee may have added to the property by removing the timber, the judgment of the trial court is reversed, and the case is remanded for a reassessment of the damages owed by the appellee for the removal of the timber, to be calculated in accordance with OCGA § 51-12-50 (2).

Judgment reversed and case remanded with direction.

Sognier and Pope, JJ., concur.

Decided May 5, 1989.

Richard W. Watkins, Jr., for appellants.

Roy R. Kelley III, for appellee.


text:
    A89A0498.
    DICKINSON v. THE STATE.
    (382 SE2d 187)
   Banke, Presiding Judge.

Dickinson brings this appeal from the denial of his plea in bar based on a claim of former jeopardy. See generally Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

On March 9, 1988, the appellant was involved in an altercation with his brother. The record does not disclose what exactly transpired during this altercation but does disclose that the appellant was arrested as a result of the incident and issued a “uniform traffic citation/accusation” charging him with violating a local ordinance prohibiting disorderly conduct. On April 5, 1988, he appeared in the Recorder’s Court of Gwinnett County to answer the charge and entered a plea of nolo contendere. These proceedings were not recorded.

On March 25, 1988, before the appellant had entered his nolo plea, the police report dealing with the appellant’s arrest was amended, based on information provided by the appellant’s brother, to reflect that the appellant had damaged an automobile and had assaulted his brother and the latter’s wife. Based on further investigation by the police, an arrest warrant was issued on April 12, 1988, followed by the present indictment, charging the appellant with two counts of simple assault and one count of criminal damage to property in the second degree. The appellant contends that each of these three charges arose from the same incident which gave rise to his arrest for disorderly conduct and that the present prosecution is consequently barred by his conviction of that offense. Held:

OCGA § 16-1-7 (b) requires that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .’’It has been held that this statute applies only where the several crimes “ ‘are actually known to the prosecuting officer actually handling the proceedings.’ ” Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987). (Emphasis from original.) See also Powe v. State, 257 Ga. 563 (361 SE2d 811) (1987).

The evidence of record in the present case reveals without dispute that the prosecuting officer in the recorder’s court had no knowledge of the facts which would later form the basis for the state charges against the appellant. It is further apparent that the Recorder’s Court of Gwinnett County lacked jurisdiction to adjudicate these charges. See Ga. L. 1972, p. 3125, as amended.

Decided May 5, 1989.

MacKay, Cordes, Daniel & King, T. Emory Daniel, Jr., Philip B. Cordes, for appellant.

Thomas C. Lawler III, District Attorney, Scott A. Smeal, Debra K. Turner, Assistant District Attorneys, for appellee.

In Parker v. State, 170 Ga. App. 333 (317 SE2d 209) (1984), we held that OCGA § 16-1-7 (b) “does not preclude successive state and municipal prosecutions, only successive prosecutions for state crimes.” We consequently hold that the appellant’s nolo plea to the charge of disorderly conduct in the present case presented no bar to the prosecution of the current charges, with the result that the appellant’s plea in bar was properly denied. In the event it is later shown that the disorderly conduct conviction was based on the same conduct as one or more of the state charges, such that a conviction on one or more of those charges in addition to the disorderly conduct charge would violate the substantive bar against double jeopardy embodied in OCGA § 16-1-6 (1), then the disorderly conduct conviction may be set aside in an appropriate future proceeding. Cf. Lowe v. State, 240 Ga. 767, 769 (242 SE2d 582) (1978); Herrera v. State, 175 Ga. App. 740 (334 SE2d 339) (1985).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0536.
    DRONZEK v. VAUGHN et al.
    (382 SE2d 188)
   Banke, Presiding Judge.

The appellant, Walt Dronzek, began working for appellee Vaughn-Parker Brokerage, Inc., in July of 1978. The company is engaged in the produce distribution business and is owned by appellee Nehl Vaughn. At the time Dronzek began working for the company, it was understood that he would initially receive corporate stock in lieu of money as compensation for his services. Dronzek worked under this arrangement until 1980, when he began receiving a salary for his services. Although Dronzek never did receive any stock, Vaughn testified that he reached an understanding with Dronzek in 1980 that the latter had earned a 20-percent equity in the company through his past contribution of services. Dronzek maintains that he was to continue to receive equity in the company each year until his total interest eventually reached 40 percent. Vaughn denies this; however, both men agree that it was understood that a buy-sell agreement would be executed at some time in the future, enabling either of them to purchase the shares of the other in the event the other decided to leave the business. Although discussions regarding such an agreement continued to occur from time to time after 1980, none was ever executed.

In February of 1987, a falling out occurred between the two men after Vaughn discovered that Dronzek had compiled a file in contemplation of soliciting the company’s clients in the event he decided to go into business for himself. At this time, Vaughn sought and obtained Dronzek’s signature on an agreement, drafted in the form of a memorandum to Dronzek from the corporation, providing in pertinent part as follows: “We recognize your past efforts have contributed to the growth of our Company, but also realize your interests are no longer directed to continued growth of Vaughn-Parker Brokerage, Inc. We offer the following in order to repay you for your past efforts: $30,576 — payable without interest at the rate of $637.00 per month, over 48 months. . . . However, we must also protect our Company during the payout period. Should you, directly or indirectly, attempt to solicit any of our principals or customer accounts during the payout period, the above agreement becomes null and void and all payments will cease, immediately. . . .We, the undersigned agree to the above offer and will be bound by its contents. The above offer shall constitute payment of any and all obligations, whatsoever, of Vaughn-Parker Brokerage, Inc. to Walter S. Dronzek.” This document was signed by Vaughn, in his capacity as president of the corporation, as well as by Dronzek. The parties appear to be in agreement that the $30,576 payout figure specified in the document represented approximately 20 percent of the worth of the business at that time.

Dronzek admits that he began soliciting the corporation’s principals, or clients, within three to four days after signing the agreement. Because of his conduct in this regard, none of the payments contemplated by the agreement were ever made to him. He brought the present action against both Vaughn and the corporation seeking to recover damages based on Vaughn’s alleged oral promises to give him a 40-percent equity interest in the business and to execute a buy-sell agreement. The trial court granted summary judgment to the appellees, and Dronzek filed this appeal. Held:

1. Dronzek contends that the severance agreement constituted an overbroad and therefore unenforceable covenant not to compete. We disagree. The agreement did not purport to obligate Dronzek to refrain from competing with the appellees. Rather, it obligated the appellee corporation to pay him a specified amount of money in the event he chose not to engage in such competition. Such an agreement cannot be equated with a restrictive covenant executed in connection with an employment contract purporting to prohibit the employee from competing with the employer following the termination of the employment relationship. Compare Guffey v. Shelnut & Assoc., 247 Ga. 667 (278 SE2d 371) (1981); Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265) (1977); Owens v. RMA Sales, 183 Ga. App. 340 (1) (358 SE2d 897) (1987).

2. “ ‘Compromise may be defined as any agreement or arrangement by which, in consideration of mutual concessions, a controversy is terminated.’ (Cit.) In order to render valid the compromise of a claim, it is not essential that the matter should be really in doubt. It is sufficient if the parties consider it so far doubtful as to make it the subject of a compromise.” Fulford v. Fulford, 225 Ga. 9, 16 (165 SE2d 848) (1969). Accord Hall v. Beavers, 78 Ga. App. 722 (1) (51 SE2d 879) (1949).

The trial court was authorized to conclude as a matter of law that the severance agreement signed by Dronzek and the corporation constituted a binding and enforceable compromise of all claims Dronzek may have had against the corporation at the time he signed it.

3. Any breach of contract claims which Dronzek may have had against Vaughn based on the latter’s failure to honor his alleged promises to give Dronzek a 40-percent interest in the corporation and to execute a buy-sell agreement were barred by the four-year limitation period applicable to actions on oral contracts. See generally OCGA § 9-3-25.

4. The evidence of record conclusively negates Dronzek’s claim that Vaughn defrauded him by failing to execute the promised buy-sell agreement.

“The general rule is that actionable fraud cannot be predicated upon promises to perform some act in the future. (Cit.) Nor does actionable fraud result from a mere failure to perform promises made. (Cit.) ‘Otherwise any breach of a contract would amount to fraud.’ (Cit.)” Lively v. Garnick, 160 Ga. App. 591, 595 (3) (287 SE2d 553) (1981). An exception to the general rule is, however, recognized in the case of “a promise as to future events made with a present intention not to perform (cit.) or where the promisor knows that the future event will not take place. (Cit.)” Id. at 596.

Dronzek’s allegation that Vaughn never intended to comply with his promise to execute a buy-sell agreement was denied under oath by Vaughn, who averred in an affidavit submitted in support of his summary judgment motion that although no buy-sell agreement was ever prepared and executed, he did intend “to go through with it” at the time he agreed to do so. In his deposition, Dronzek seemed to confirm Vaughn’s expression of good faith in this regard, testifying as follows upon being asked to state the reasons for his allegation that Vaughn never intended to live up to the stock agreement: “Oh no. I never didn’t (sic) believe that, and I don’t, to this day, believe that point.” Under the circumstances, we conclude that Vaughn met his burden on motion for summary judgment of negating this allegation of fraud.

Decided May 5, 1989.

Northcutt, Edwards, Gainer & Moore, William G. Gainer, Mark V. Clark, for appellant.

The Counsel House, Robert W. Raliegh, James D. McGuire, for appellees.

5. Dronzek further contends that a material issue of fact remains as to whether Vaughn defrauded him by appropriating to his personal use certain corporate income which he (Dronzek) would otherwise have received as salary. Vaughn also denied this allegation under oath, and the only support Dronzek offered for it was his assertion, made during his deposition, that Vaughn and Vaughn’s wife “had pretty old cars” when he first came to work for the company, but that, in subsequent years, “new cars were being bought on a reasonably regular basis” for both of them. Vaughn responded to this suggestion of impropriety by disclosing the company’s automobile expenses during the years in question; and the record provides no basis for an inference that these were other than legitimate business expenses. Under the circumstances, we hold that the record also established Vaughn’s entitlement to summary judgment with regard to this claim.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0573.
    HERT v. GIBBS et al.
    (382 SE2d 191)
   Banke, Presiding Judge.

The defendant in this personal injury action brings this appeal from the denial of his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

While driving at a speed of approximately 35-40 miles per hour, the defendant struck a stationary vehicle occupied by plaintiff Gary Gibbs. Although Gibbs appeared to be uninjured when he departed the scene, he suffered a grand mal seizure approximately six weeks later, following which he underwent brain surgery for the removal of an intracerebral hematoma. Gibbs and his wife subsequently joined in bringing this personal injury action against the defendant-appellant.

Gibbs was unable to testify at trial; however, his wife testified that she had observed dramatic changes in his behavior following the accident, and her testimony to this effect was corroborated by the testimony of a neighbor. Gibbs’ neurosurgeon, Dr. Gott, testified in response to a hypothetical question that in his opinion there was a causal relationship between the accident and his patient’s brain injury. The appellant objected to the hypothetical on the basis that it included facts not in evidence and was itself based on opinion testimony. He also moved to strike Dr. Gott’s response to the hypothetical on the ground that it was speculative and conclusory. These objections were overruled, and this appeal concerns the correctness of these rulings. Held:

1. While the appellant correctly asserts that the question assumed facts concerning Gibbs’ physical condition after the accident which were not in evidence, a review of the transcript demonstrates that the witness did not rely on any physical problems exhibited by his patient in making his determination that the brain injury was attributable to the collision. Rather, he based his opinion on the behavorial changes which had been observed by the appellant’s wife and the neighbor after the accident, in conjunction with other factors. Nor was the physician’s opinion inadmissible on the ground that it was speculative. While “ ‘(m)edical testimony as to the mere possibility of a causal relation between a given event and the subsequent physical or mental condition of an injured person will not establish the causal relationship . . . [,]’ [m]edical evidence which shows the possibility of a causal relationship ‘in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, ... is sufficient to establish the causal relation.’ [Cit.]” Jacobs v. Pilgrim, 186 Ga. App. 260, 262 (1) (367 SE2d 49) (1988).

“The question of whether the circumstances were sufficiently proven to establish the fact contained in the hypothetical question is an issue for the trier of fact.” Stoneridge Properties v. Kuper, 178 Ga. App. 409, 413 (343 SE2d 424) (1986). In conjunction with the non-expert evidence properly admitted in this case, Dr. Gott’s testimony authorized a finding of a causal connection between the collision and the injury. The trial court accordingly did not err either in admitting the witness’s opinion testimony or in denying the appellant’s motions for directed verdict or for judgment notwithstanding the verdict.

2. The appellees have moved for imposition of damages against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal. Although we find no merit in the. appeal, we do not find it so devoid of arguable merit as to warrant the conclusion that it was filed for delay only. Accordingly, this motion is denied.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided May 5, 1989.

Fain, Major & Wiley, Donald M. Fain, Neely & Player, Richard Kopelman, for appellant.

Tony Center, for appellees.


text:
    A89A0615.
    DYER v. JOE RIGATONI’S OF ATLANTA, INC. et al.
    (382 SE2d 193)
   Banke, Presiding Judge.

The appellant sued to recover for injuries she allegedly sustained as the result of a fall which occurred at a restaurant owned by the appellees. She appeals the grant of the appellees’ motion for summary judgment.

On December 31, 1986, the appellant attended a New Year’s Eve celebration at the appellees’ restaurant. She and the other members of her party arrived at approximately 9:30 p.m. and were seated in an elevated atrium area. At approximately 11:00 p.m., she observed the appellees’ staff distributing paper streamers, balloons, hats, and other party favors to those present. She testified that she observed guests throwing streamers and bursting balloons and that she saw streamers “lying around” on the floor, “on the table,” “on the back of the seat,” and “around people’s necks.” She stated that subsequently, after having consumed an alcoholic beverage, she left the table and began to walk toward the rest room and that as she started to descend the three stairs leading from the atrium to the lower level, she slipped and fell on a streamer. Upon being asked whether this streamer was in plain view, she responded, “I guess if you was (sic) looking down and looking on the floor it would have been quite obvious to see. But I wasn’t —.” She further testified: “I didn’t pay any attention to what was going on the floor before I fell. Because I wasn’t looking at the floor.” Held:

The trial court did not err in granting summary judgment to the appellees. “ ‘ “The true ground of liability of the owner of property to an individual who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. . . . (N)ot only must the plaintiff show that the defendant had knowledge of the presence (of the hazard) but the plaintiff must also show that he was without knowledge of its presence.” Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980). (Emphasis supplied.) Thus, recovery is allowed only when the peril is known to the owner and not to the person injured. [Cit.]’ ” Miolen v. Edd Kirby Chevrolet, 189 Ga. App. 282, 283 (375 SE2d 266) (1988).

Decided May 5, 1989.

McLain & Merritt, Howard M. Lessinger, David James, for appellant.

Pierce, Goldner, Sommers & Scrudder, Stephen L. Goldner, Alfred A. Quillian, Jr., for appellees.

It is apparent without dispute from the appellant’s own testimony that she had fully as much reason to anticipate the presence of the streamer as did the appellee. Under the circumstances, there is no basis upon which the appellee can be held liable for her injury. Compare Oliver v. Complements, Ltd., 190 Ga. App. 30 (364 SE2d 852) (1989) (where the injury resulted from the owner’s alleged negligence in allowing a stairway to exist in a state of advanced disrepair).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0646.
    WILSON et al. v. WICKES-HOMECRAFTERS, INC.
    (382 SE2d 194)
   Sognier, Judge.

Wickes-Homecrafters, Inc. brought suit against Patricia Diane Gruber and Michael P. Wilson, both individually and d/b/a Greater South & Co., to recover a sum owed on account. Wilson and Gruber each filed a pro se answer. Default judgment was entered and subsequently vacated. Thereafter, Wickes voluntarily dismissed its action against Gruber and moved for summary judgment against Wilson, which was granted in the amount of $3,069.87 (which included principal, interest, and attorney fees) plus court costs. Wilson appeals.

1. In three separate enumerations, appellant contends the trial court erred by granting summary judgment to appellee because the record did not support appellee’s claim that appellant was personally liable, that he had any connection with Greater South & Co., or that the amount actually owed was the amount claimed in the complaint. However, the record reveals that the complaint, which was brought against appellant both individually and doing business as Greater South, alleged that appellant was liable in the amount sought, and appellant did not deny this averment. OCGA § 9-11-8 (d) provides that “[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” Further, in support of its motion for summary judgment appellee submitted the affidavit of Stan Smith, its assistant vice president, who averred based on business records and on personal knowledge that appellant was liable and that the amount owed was $2,155.97. No response was filed by appellant to appellee’s motion for summary judgment. “When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. See OCGA § 9-11-56 (e). . . [Cits.]” Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 566-567 (307 SE2d 99) (1983). No such specific facts having been presented by appellant here, the trial court did not err by granting summary judgment in favor of appellee. Id.

Decided May 5, 1989.

Michael P. Wilson, pro se.

Stokes, Lazarue & Carmichael, Marion B. Stokes III, Karl M. Terrell, for appellee.

2. Appellant also asserts the trial court erred by granting summary judgment in favor of appellee because appellant was not served with the motion for summary judgment, which was served upon his attorney of record pursuant to OCGA § 9-11-5 (b). Appellant argues that his attorney had withdrawn from representation prior to service of the motion. However, the record shows that no motion or order for withdrawal pursuant to Uniform State Court Rule 4.3 was ever filed or entered. Thus, because appellant’s attorney was still attorney of record, the motion was properly served upon her.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0669.
    BELK v. DOE.
    (382 SE2d 195)
   Banke, Presiding Judge.

The appellant brought this “John Doe” action to recover uninsured motorist insurance benefits allegedly due him as the result of an automobile accident which occurred in Monroe County, Georgia, when an unknown driver forced his vehicle off the roadway without actually making contact with it. An independent eyewitness corroborated the appellant’s description of how the accident occurred. The appellant is a Tennessee resident and was covered under a policy of automobile insurance issued in Tennessee by State Farm Mutual Automobile Insurance Company. He caused State Farm to be served with process in the present action as his uninsured motorist carrier. The trial court granted summary judgment to State Farm based on application of Tennessee law, and this appeal followed. Held:

Under the Tennessee uninsured motorist statute, Tenn. Code Ann. § 56-7-1201 (2) (e), there must be “actual physical contact” between the vehicles in order for the coverage to apply where the driver causing the injury is unknown. In Georgia, on the other hand, actual physical contact is not required if an eyewitness corroborates the event. OCGA § 33-7-11 (b) (2). The appellant urges that this conflict should be resolved by application of Georgia law as the lex loci delecti, while State Farm argues that the trial court properly applied Tennessee law as the lex loci contractus. Based on this court’s decision in Howard v. Doe, 174 Ga. App. 415 (330 SE2d 370) (1985), which is factually indistinguishable from the present case, we hold that application of Tennessee law was appropriate under the circumstances and that the trial court consequently did not err in granting State Farm’s motion for summary judgment.

Decided May 5, 1989.

James & Carey, James D. Carey, for appellant.

Martin, Snow, Grant & Napier, Walter E. King III, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0725.
    HUFF v. THE STATE.
    (382 SE2d 183)
   Banke, Presiding Judge.

On appeal from his conviction of burglary, the appellant contends that his character was improperly placed in issue and that he was denied effective assistance of counsel. Held:

1. During direct examination of the investigating officer, the state elicited testimony concerning a comparison which had been made between the appellant’s fingerprints and prints taken from the crime scene. When asked what the crime scene prints had been compared with, the witness responded, “Fingerprints taken off of Mr. — that had been taken off of Mr. Huff previously.” No objection was made to this testimony at trial; however, the appellant contends the trial court should have declared a mistrial sua sponte on the ground that this testimony impermissibly placed his character in issue. This enumeration is patently without merit. The response did not intimate that the appellant’s fingerprints were already on record at the time of his arrest for the present offense; and even if it had, “[t]he fact that a copy of one’s fingerprints is on record is not indicative of prior criminal activity and it alone does not introduce the issue of a defendant’s character into issue.” Weldon v. State, 175 Ga. App. 172, 173 (333 SE2d 23) (1985).

Decided May 5, 1989.

Dilmus Huff, pro se.

Judith Y. Shelnutt, for appellant.

W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

2. The appellant was represented by appointed counsel at trial. Following his conviction, he filed a pro se notice of appeal, as well as an affidavit of poverty and a motion for appointment of counsel to represent him on appeal. Appellate counsel was thereafter appointed and has raised for the first time on appeal the issue of the effectiveness of counsel during the trial.

As no motion for new trial was filed in the case, the trial court has not yet had an opportunity to consider this issue. In Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 288) (1982), the Georgia Supreme Court held that an enumeration of error asserting ineffective assistance of counsel would not be considered under such circumstances. This holding has never been overruled, although the Court has since issued a series of differing rulings dealing with the consideration to be given an enumeration of error challenging the effectiveness of trial counsel where the defendant obtained new counsel following the trial, but such counsel either failed to raise the issue in an amended motion for new trial or did raise the issue but failed to request an evidentiary hearing on it. See Brown v. State, 251 Ga. 598 (3) (308 SE2d 182) (1983); Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986); Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664) (1987); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Currently, the rule appears, once again, to be that a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it. Accordingly, inasmuch as no challenge to the effectiveness of counsel was made in the trial court in the present case, this enumeration of error presents nothing for review.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0895.
    RYAN v. THE STATE.
    (382 SE2d 196)
   McMurray, Presiding Judge.

Ryan was convicted of armed robbery, theft by taking, unlawful possession of a firearm during the commission of a felony (armed robbery), and kidnapping. Following the denial of his motion for a new trial, Ryan appealed. Held:

Decided May 5, 1989.

Robert H. Alexander III, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Nancy A. Grace, Keith L. Lindsay, Joseph J. Drolet, Assistant District Attorneys, for appellee.

1. The facts of this case are set forth in Giddens v. State, 190 Ga. App. 723 (380 SE2d 274), in which the conviction of Ryan’s co-defendant, Giddens, was affirmed. Viewing the facts in a light favorable to the verdict, we find them sufficient to enable a rational trier of fact to determine that Ryan committed armed robbery, theft by taking, unlawful possession of a firearm during the commission of a felony (armed robbery), and kidnapping beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Ryan contends the trial court erred in charging and recharging (almost verbatim) the jury as follows: “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant, and holds such person against his will. Further, the law of this state is that only the slightest movement of the victim is required to constitute the necessary element of asportation. Unlawful asportation, however slight, is sufficient to support a kidnapping conviction.”

The charge was adjusted to the evidence. It was not erroneous. Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A89A0112.
    MADDOX v. ELBERT COUNTY CHAMBER OF COMMERCE, INC.
    (382 SE2d 150)
   Birdsong, Judge.

We granted this discretionary appeal from the judgment of the Elbert County Superior Court, which reversed the award of the State Board of Workers’ Compensation on grounds, inter alia, that there was no “credible evidence” (emphasis supplied) to support the board’s award.

Artis Maddox applied for workers’ compensation for an injury she claimed was incurred while she was performing the duties of her job. Ms. Dorothy McDonald, Executive Vice-President of appellee Chamber of Commerce, hired Ms. Maddox “to work at the Civic Center. . . .” Ms. McDonald had the authority “to direct the time, place and manner of her work activities. ...” Ms. Maddox was paid by checks written on “the bank account in the name of the Chamber of Commerce.” Ms. McDonald, in her capacity as executive vice-president of appellee, issued Ms. Maddox a “Separation Notice” and forwarded the notice to the Georgia Department of Labor which listed Maddox’ employer as “Elbert County Chamber of Commerce, Inc.” The federal tax form W-2 issued to Ms. Maddox listed her employer as “Elbert County Chamber of Commerce, Inc.”

The ALJ found that Maddox was an employee of the Elbert County Chamber of Commerce, that she incurred her injury while moving tables setting up a meeting in the civic center, and had been disabled since she left her job at the Chamber of Commerce. The full board made the award of the ALJ the award of the board. The employer appealed to the Elbert County Superior Court. The court found that during the hearing before the ALJ, after the claimant had presented its witness and the employer had called its “first witness, the Administrative Law Judge interrupted the questioning, and summarily ruled that Claimant was ‘an employee of the Chamber of Commerce,’ further commenting, ‘Let’s not waste anymore time on that’ . . . precluding the Employer from introducing any further evidence on the question. . . .” The court below held this was “clearly improper, and is grounds for reversal.” Hart v. Owens-Illinois, 165 Ga. App. 681 (302 SE2d 701) was cited as authority for this ruling.

The court also found “there is no competent and credible evidence in the record to support [the board and ALJ] finding” that claimant “sustained an injury arising out of the course of her employment, and that she has been disabled ever since she left work at the Chamber.” (Emphasis supplied.) This ruling was based upon the court’s conclusion that “[t]he only evidence whatsoever that Claimant had a work-related injury is Claimant’s own statements to that effect. Because Claimant is a party at interest, her credibility is suspect at best, and therefore, without any confirmatory evidence, is not competent to support a verdict. Brown Transport Co. v. Parker, 129 Ga. App. 737 (201 SE2d 17) (1983). “There is simply no competent evidence to support the finding that Claimant was injured while performing her duties for Employer. ...” (Emphasis supplied.)

The court further found “there again [was] no credible evidence that proper notice was given to Employer, as required by the Act. Counsel for Claimant testified that he called Mrs. McDonald ‘for purposes of making inquiry as to whether or not Workers’ Compensation was available,’ but fails to testify that he specifically told Mrs. McDonald . . . about the circumstances surrounding the injury ... or that a work-related injury was being alleged. . . . Claimant had the burden of proving proper notice, but, from the record before the Court, failed to do so.” (Emphasis supplied.) Held:

1. Appellant claims the superior court erred “in finding a lack of any evidence to support the finding of the Board of Workers’ Compensation on the issues of [a] employment of appellant by appellee, [b] of work related injury, of [c] disability and [d] of notice.”

(a) The ALJ and board found sufficient evidence of record to establish employment of the claimant by appellee. Appellant’s contention that the court erred “in finding a lack of any evidence to support” the ALJ and board’s finding that claimant was an employee is not an accurate assessment of the court’s ruling. The court found that the ALJ improperly terminated a hearing into this issue and precluded the employer from introducing further evidence in question — and reversed. There was evidence presented that the executive vice-president of appellee hired and fired the claimant, that she directed “the time, place and manner of her work activities,” that claimant was paid on Chamber of Commerce checks,, drawn on a Chamber of Commerce bank account, that the W-2 listed the Chamber of Commerce as claimant’s employer, and the Georgia Department of Labor was notified that the Chamber of Commerce was claimant’s employer. Appellee called Ms. McDonald as a witness and following her testimony, counsel for the Chamber of Commerce told the ALJ: “That’s all I have.” The ALJ ruled: “I’m going to hold she’s an employee of the Chamber of Commerce. Let’s not waste anymore time on that. [COUNSEL FOR CLAIMANT]: I’ve got nothing more. THE COURT: You can go down. Are you through? [COUNSEL FOR APPELLEE]: Yes, sir.”

Counsel for the Chamber of Commerce advised the ALJ that he had submitted all that he had. The court inquired: “Are you through?” Counsel said that he was. No objection was made to the procedure followed. No request was made to present further evidence. No offer of proof of what an additional witness would testify to was proffered. The ALJ may have been misled by counsel’s statements that he was through and acceded to the ALJ’s ruling. However, this court has held that “ ‘(n)o matter how erroneous the ruling might have been (and we express no opinion on this question), a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it.’ ” Ewing v. Johnston, 175 Ga. App. 760, 765-766 (334 SE2d 703); accord J & F Car Care Svc. v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504); Marlow v. Lanier, 157 Ga. App. 184, 185 (276 SE2d 867). Failure to object to the procedure amounts to waiver. Holder v. J. F. Kearley, Inc., 153 Ga. App. 843, 845 (1) (267 SE2d 266). Further, counsel for appellee made no request to be allowed to present further evidence or attempted to make a proffer of what any additional witness would testify to. It is well-settled that in order to preserve a ground of objection relating to the exclusion of oral testimony, it is necessary that the complaining party show what he expects to prove, and that the evidence is material, relevant, and beneficial. Cambron v. Canal Ins. Co., 246 Ga. 147, 152 (269 SE2d 426); Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (307 SE2d 759). Hence, as a matter of law, the superior court erred in holding that the ALJ improperly terminated the hearing and precluded appellee from presenting further evidence on the issue of the claimant’s employer.

(b), (c) Error is enumerated in the finding of the superior court that “there is no competent and credible evidence in the record to support [the] finding” of the board and ALJ that claimant sustained an injury arising out of her employment and has been disabled since that injury. Claimant testified that she sustained the injury while performing her duties at the civic center and has been disabled as a result of that injury. The superior court held that “[b]ecause Claimant is a party at interest, her credibility is suspect at best, and therefore, without any confirmatory evidence, is not competent to support a verdict. . . . There is simply no competent evidence to support the finding that Claimant was injured while performing her duties . . . and the Board’s findings to the contrary are therefore reversed.” (Emphasis supplied.)

A party to an action is a competent witness. OCGA § 24-9-1 (a). The fact that a witness is a party goes to the weight and credibility of her testimony. OCGA § 24-4-4. Where the claimant swears to her injury and disability, this testimony’s weight and credibility is to be determined solely by the ALJ and the board, and her testimony alone is sufficient to establish those facts. Fulton-DeKalb Hosp. Auth. v. Hadley, 174 Ga. App. 503 (1) (330 SE2d 432); Southern R. Co. v. Tankersley, 3 Ga. App. 548, 549 (1) (60 SE 297). “[T]he findings [of the board] are conclusive and binding [OCGA § 34-9-105 (c)] and neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.” East Texas &c. Freight Lines v. Jacobs, 163 Ga. App. 727, 728 (296 SE2d 80); Argonaut Ins. Co. v. Cline, 142 Ga. App. 603, 605 (236 SE2d 876). The superior court, when sitting as an appellate body, is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight and credibility of the witnesses. Wilson v. Manville Bldg. &c. Prods., 179 Ga. App. 408 (346 SE2d 851). The ALJ and board may choose to believe the testimony of the claimant as opposed to the testimony of an expert witness. Hadley, supra; Terry v. Liberty Mut. Ins. Co., 152 Ga. App. 583 (1) (263 SE2d 475); Tankersley, supra. The testimony of the claimant provided the “any evidence” in support of the ALJ and board’s findings, and the superior court erred in substituting its judgment for that of the board in weighing the credibility of the claimant’s testimony, and finding no competent evidence in support of the board’s award.

Decided April 28, 1989

Rehearing denied May 8, 1989

(d) The trial court found “there again is no credible evidence that proper notice was given to Employer . . .” even though claimant’s counsel testified he called Mrs. McDonald “ ‘for purposes of making inquiry as to whether or not Workers’ Compensation was available,’ but fails to testify that he specifically told Mrs. McDonald . . . about the circumstances surrounding the injury ... or that a work-related injury was being alleged.” In Wilson v. Manville Bldg. &c. Prods., supra at 410, we stated: “ ‘The question as to adequacy of notice of the accident required by OCGA § 34-9-80 was laid to rest in Schwartz v. Greenbaum, 236 Ga. 476 (1) (224 SE2d 38) (1976), which renounced a prior Supreme Court decision to the contrary (cit.) and held: “. . . (A) liberal construction must be given to effectuate the humane purposes for which the (Workers’) Compensation Act was enacted. (OCGA § 34-9-80) does not require that notice of an injury or accident must show that it ‘arose out of and in the course of the employment’ . . . ‘The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so.’ ” ’ ” There was evidence that Ms. McDonald had been questioned about the notice given her by claimant’s counsel. She was asked: “And he informed you at that time that she had a claim and she was pursuing the claim for workers’ compensation benefits; did he not? A. That’s right. Q. Did he not also inform you that this was as a result of an accident which she claims she had while she was working? A. That’s right. . . . Q. Did he not also inform you that she claimed she was working for the Chamber of Commerce at that time? ... A. That’s right.” This is “some evidence” as to sufficiency of the notice, and the board applied the correct law, thus the superior court was in error in reversing. Wilson, supra at 410.

2. We find no merit to appellant’s claim that Hart was misapplied. Although the superior court reversed the board’s award, it also “remanfed] this matter for further hearings on the issues of employment, including the issue of whether or not the Chamber is subject to the Act.”

3. The remainder of the enumerations of error is mooted by the above findings.

Judgment reversed, with direction that the trial court enter judgment for claimant.

Deen, P. J., and Benham, J., concur.

Galis & Packer, Kennedy R. Packer, for appellant.

Heard, Leverett & Phelps, R. Chris Phelps, Cynthia G. Weaver, for appellee.


author: Deen, Presiding Judge.

text:
    A89A0173.
    FULLARD et al. v. SOUTHERN MUTUAL INSURANCE COMPANY.
    (382 SE2d 140)
   Deen, Presiding Judge.

James (“Junior”) and Nell Fullard brodght suit against Southern Mutual Insurance Company after the company refused to pay their claim for fire damage to their home. They appeal from a judgment entered on a jury verdict in the amount of $64,000. On appeal they assert three enumerations of error: sufficiency of the evidence, refusal of the trial court to approve the jury verdict or to grant a new trial because a transcript had not been ordered, and refusal to grant a new trial because of undisclosed juror bias.

1. The Fullards contend that the court below erred in denying their motion for a new trial because they submitted an affidavit from a witness, Roy Dunsmore, who claims that he heard Mike Gillis, who was elected jury foreman at the trial of the case, tell a third party in his presence several months prior to trial that Junior Fullard was “a crook.” Dunsmore stated that he and the third party were discussing the Fullards’ house fire while they were in a grocery store, and Gillis joined in their conversation.

During voir dire, Gillis revealed that he knew the Fullards because he did business with them when he was in the feed business approximately ten years ago, but he had never visited their home. He remained silent when the prospective jurors were asked if anyone knew about the fire and if they had discussed it with anyone who knew anything about the case. Gillis filed a counter-affidavit in response to the motion for a new trial and admitted that he could have been in Chek Mate Foods in December of 1987, that he knew Roy Dunsmore, but that he did not remember ever seeing him in the food store and that he had never made negative remarks about Junior Fullard.

The affidavit of Roy L. Dunsmore, Jr., does not contain any factual allegation that the juror, Mike Gillis, was discussing the fire or that he had any knowledge of the facts surrounding the fire. Further, the affidavit of Dunsmore does not contain any assertion that the juror, who allegedly was standing close by, overheard that particular part of the conversation that Dunsmore had with a third party, nicknamed “Suitcase,” regarding the house of Junior Fullard “that had burnt.”

It has long been the law in this state that “[i]t is competent for a Juror whose verdict is impeached, on the ground of a previously expressed opinion against one of the parties, by the affidavit of a third person as to declarations made by the Juror previous to the trial, to support his verdict by an affidavit denying such declarations, or in explanation thereof; and when the declarations, so imputed to the Juror, are denied, or satisfactorily explained, a new trial will not be granted.” Mayor &c. of Columbus v. Goetchius, 7 Ga. 139 (3) (1849); In this regard, “[i]t is a well-settled rule that a juror whose integrity and competency is thus assailed after verdict may vindicate himself by affidavit. [Cit.] And when the assault is thus made, it is but just that the juror may be heard in his own vindication, and when so heard the court will stand in the position of a trior, and if he should pronounce him, from all the proofs submitted, a competent juror, it will be no sufficient ground for new trial, unless there was decided error in the judgment so pronounced. [Cit.] Even loose remarks made by a juror before he is sworn work no disqualification if they are explained after trial by affidavits and he is shown to be impartial. [Cit.] Moreover, when the competency of a juror for partiality is assailed after verdict, the [burden] is upon the one who attacks him; all the presumptions of law are in favor of his competency.” (Emphasis supplied.) Moon v. State, 68 Ga. 687, 696 (5) (1882).

The record in this case discloses no evidence supporting a finding of clear error on the part of the trial judge in weighing the evidence and determining witness credibility. Clearly, the trial judge found that the juror had not engaged in any conduct that in effect would warrant impeachment of this verdict by the granting of a new trial on the asserted grounds. Verdicts should not be avoided unless from necessity. OCGA § 9-12-4.

2. Appellants contend that the trial court erred in refusing to pass on the merits of their motion for a new trial by either approving or disapproving the jury verdict in this case because a trial transcript had not been ordered.

The record shows that the trial court entered an order denying appellants’ motion for a new trial, and this appeal is from the entry of that order. The order does not contain any comment about the verdict.

The trial judge, in the exercise of his sound legal discretion, must either approve the jury verdict or grant a new trial when the losing party makes a motion for a new trial. Pierson v. M & M Bus Co., 74 Ga. App. 537, 540 (40 SE2d 561) (1946). When the judge enters a judgment on a verdict, it approves the legal sufficiency of the evidence. Gilman Paper Co. v. James, 235 Ga. 348, 350 (219 SE2d 447) (1975). Therefore, the trial judge’s entry of an order denying the motion for a new trial constituted approval of the jury verdict. Entry of this order does not support appellants’ contention that the court refused to enter such an order because a trial transcript was not ordered.

Decided April 24, 1989

Rehearing denied May 8, 1989

Hackel & Hackel, Thomas M. Hackel, for appellants.

Webb, Carlock, Copeland, Semler & Stair, E. Alan Miller, Dennis J. Webb, Douglas L. Gibson, for appellee.

3. The evidence was ample to support the jury verdict. The question of damages is for jury determination. Etheridge v. Kay, 153 Ga. App. 399 (265 SE2d 332) (1980). In determining the amount of damages to award, the jury is not required to accept expert opinion evidence as the correct value of the property and the amount awarded can be higher or lower than that presented by the expert witness’ testimony. The jury may consider the nature of the property together with any other facts or circumstances properly before it. Dept. of Transp. v. Driggers, 150 Ga. App. 270, 271 (257 SE2d 294) (1979). Throughout the trial there was a great deal of evidence about the paucity of furnishings that would normally be found in a home, and a rather wide range of testimony concerning the value of the home and its contents. One expert witness testified that he valued the house and lot at $69,000. After subtracting approximately $5,000 as the value which the expert witness placed on the lot, the jury could have found $64,000 to be the value of the house and contents. The jury verdict was therefore within the range of the testimony and its verdict must be affirmed and cannot be attacked as so flagrantly inadequate, in view of the evidence presented, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Le Twigge, Ltd. v. Wammock &c., 187 Ga. App. 446, 447 (370 SE2d 631) (1988).

Judgment affirmed.

Birdsong and Benham, JJ., concur.