text:
    75222.
    ROSE v. KOSILLA.
    (363 SE2d 623)
   Benham, Judge.

On March 1, 1985, appellant Rose filed suit against appellee Rosilla, seeking damages for injuries appellant allegedly suffered as a result of an automobile collision with appellee on March 2, 1983. On June 17, 1985, in support of a motion for service by publication (OCGA § 9-11-4 (e)), appellant’s attorney filed an affidavit averring that appellee could not be found in Georgia. Appellee’s insurance carrier was notified of the lawsuit on September 4, 1985. On October 28, 1985, contending that service by publication was unconstitutional in tort actions, appellee filed both an answer contesting the sufficiency of service of process and a motion to dismiss appellant’s complaint. Appellant sought to amend her complaint on June 27, 1986, to add her uninsured motorist carrier as a defendant. OCGA §§ 9-11-15 (a); 33-7-11 (e). In separate orders issued on the same day, the trial court granted appellee’s motion to dismiss and denied the motion to add a defendant, finding it to be without merit since the underlying case had been dismissed.

1. “Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts. [Cits.] . . . [I]t is the duty of the courts to determine whether the movant [for publication service] has exercised due diligence in pursuing every reasonably available channel of information . . . [Although it is the trial court which first passes upon the legality of notice, the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate[.] [Cit.] . . .” Abba Gana v. Abba Gana, 251 Ga. 340, 343 (304 SE2d 909) (1983). In order to determine whether appellant fulfilled the constitutional requirement of exercising reasonable diligence in attempting to locate and personally serve appellee, we must focus on appellant’s efforts prior to June 1985, when she moved for constructive service. Id. at 346.

In an affidavit submitted in support of the motion for service by publication, appellant’s counsel avers that “[t]he Sheriffs of Fulton County and Clayton County have attempted service upon Defendant and Defendant cannot after due diligence be found within the State of Georgia.” However, the record contains no evidence of unsuccessful attempts to personally serve appellee that support the hearsay conclusions set forth in the affidavit in support of constructive service. See Gaddis v. Dyer Lumber Co., 168 Ga. App. 334, 335 (308 SE2d 852) (1983). A Fulton County deputy sheriff executed an affidavit on June 3, 1986, recounting his attempts to personally serve appellee. However, the efforts related by the deputy took place during April and May 1986, nearly a year after appellant had sought service by publication, and therefore are not evidence of appellant’s reasonable diligence in attempting to locate and personally serve appellee before seeking constructive service. In short, the record contains no evidence that appellant exercised reasonable diligence in attempting to serve appellee personally before she sought service by publication. See Abba Gana v. Abba Gana, supra. Furthermore, there is no evidence of record that appellee, with actual knowledge of the pending lawsuit, evaded the process server by secreting himself within the state. Compare Melton v. Johnson, 242 Ga. 400 (249 SE2d 82) (1978). Inasmuch as there was no valid service or a waiver of such service, the trial court had no jurisdiction over appellee’s person and correctly dismissed the complaint. Gaddis v. Dyer Lumber Co., supra.

2. Appellant next contends that the trial court erred in failing to allow her to add the uninsured motorist carrier as a party defendant. In reviewing the trial court’s action, we put to the side the fact that the cause of action to which appellant sought to add a party was no longer viable when the trial court ruled on the motion to add a party. Instead, we focus on the merits of appellant’s request.

Appellant’s motion to add a party was filed June 27, 1986, 15 months after the expiration of the two-year statute of limitation applicable to personal injury actions. See OCGA § 9-3-33. However, the relation-back feature of OCGA § 9-11-15 (c) allows an amendment adding a party even though a separate action against that party would be barred by the statute of limitation. Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983). Such an amendment relates back to the date of the original pleadings if: (1) the claim asserted in the amendment arises out of the conduct, transaction, or occurrence set forth in the original pleading; (2) the party sought to be added has received during the period of limitation such notice of the institution of the action that he will not be prejudiced in maintaining a defense on the merits; and (3) the party sought to be added knew or should have known during the period of limitation that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. OCGA § 9-11-15 (c); Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 733 (307 SE2d 530) (1983). While it is undisputed that the first condition of OCGA § 9-11-15 (c) has been met, .there is no evidence that the party sought to be added was aware of the institution of appellant’s action during the period of limitation. In point of fact, there is nothing in the record to reflect that appellant’s insurance company has ever been made aware of the pendency of appellant’s action. The conditions of OCGA § 9-11-15 (c) not having been met, appellant’s proffered amended pleading did not relate back to the date of the filing of the original complaint and was therefore properly denied.

Decided December 4, 1987.

Alvin N. Siegel, Fred F. Filsoof, for appellant.

James S. Strawinski, Milton B. Satcher III, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    75334.
    JENKINS v. ROPER CORPORATION et al.
    (363 SE2d 625)
   Banke, Presiding Judge.

Acting as next friend of his minor son, Charles, Willie Jenkins brought suit against the Roper Corporation and Sears Roebuck and Company to recover for injuries suffered by his son as the result of an alleged defect in a Kenmore gas range manufactured by Roper and sold to him by Sears. He appeals the trial court’s grant of summary judgment to both defendants.

Approximately one year after Jenkins purchased the range, his son “felt something hit the back of his legs” while standing in the kitchen preparing a sandwich. The son’s next recollection was of being taken to the hospital, where he was treated for burn injuries. The complaint alleged that the child’s injuries had resulted either from a manufacturing defect in the stove or from negligent installation and service. Held:

“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. [Cits.] The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time, the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cits.]” Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52) (1987).

The evidence submitted by the defendants in support of their motion for summary judgment established that Sears’ representatives had serviced the range twice in the plaintiff’s home and had found it to be in good working order at the conclusion of both service calls; that a representative of the gas company had inspected the stove and found it to be free of leaks on the morning following the injury; and that during subsequent testing at Roper’s engineering laboratories, it had been determined to be free of defects and functioning normally. Additionally, there was evidence suggesting an alternative explanation for the son’s injuries — that the fire may have been caused by gasoline which the plaintiff occasionally kept in the kitchen for the purpose of cleaning paint brushes.

Decided December 4, 1987.

Edward M. Buttimer, for appellant.

Richard A. Rominger, Randolph H. Donatelli, for appellees.

The plaintiff failed to come forward with any evidence tending to refute the evidence submitted by the defendants, apparently relying on the doctrine of res ipsa loquitur to establish a material factual dispute. We find that principle to be inapplicable under the circumstances of the present case. In order for res ipsa loquitur to apply, the injury must have been “caused by an agency or instrumentality within the exclusive control of defendant.” Atlanta Coca-Cola &c. Co. v. Ergle, 128 Ga. App. 381, 382 (196 SE2d 670) (1973). That element is clearly absent in the present case, since the range had been in the plaintiff’s possession and control for approximately 12 months prior to the injury. Accordingly, the defendants’ motion for summary judgment was properly granted.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75489.
    MUHANNA v. O’KELLEY et al.
    (363 SE2d 626)
   Banke, Presiding Judge.

The defendant physician in this medical malpractice action moved for summary judgment. After oral argument on the motion but before the trial court had made any indication as to how it intended to rule, the plaintiffs determined that their response was insufficient and filed a voluntary dismissal of their complaint. The defendant appeals from the denial of his subsequent motion to strike the dismissal, contending that the plaintiffs had already “rested” their case within the contemplation of OCGA § 9-11-41 (a) when the dismissal was filed. Held:

Section 41 (a) of the Civil Practice Act specifies in pertinent part, that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. After the plaintiff rests his case, permission and an order of the court must be obtained before dismissal. . . .” OCGA § 9-11-41 (a) (Ga. L. 1986, p. 816, § 1). (Emphasis supplied.) Originally, the Code section had permitted the voluntary dismissal of an action without a court order “at any time before verdict” (Ga. L. 1966, p. 609, § 41). In 1985, the latter wording was changed to read, “at any time before the submission of the case to the jury” (Ga. L. 1985, p. 546, § 1). The present language was substituted for that version the following year.

Decided December 4, 1987.

Weymon H. Forrester, for appellant.

Charles B. Tanksley, for appellees.

Regardless of the wording of the statute, the right of voluntary dismissal has always been subject to a judicially created limitation prohibiting its exercise, even prior to trial, where there has already been an announcement by the court of its intention to rule in favor of the defendant. See Guillebeau v. Yeargin, 254 Ga. 490 (330 SE2d 585) (1985). “The principle at the foundation of these decisions is that after a party has taken the chances of litigation and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he cannot, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained. It is the knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” Peoples Bank of Talbotton v. Exchange Bank, 119 Ga. 366, 368 (46 SE 416) (1903).

If in the present case the trial court had announced an intention to grant the defendant’s motion for summary judgment prior to the plaintiffs’ filing of their voluntary dismissal, then the defendant’s position would be well taken. Accord Groves v. Groves, 250 Ga. 459 (298 SE2d 506) (1983); Guillebeau v. Yeargin, supra. However, because no such announcement had been made, and because the terminology, “before the plaintiff rests his case” obviously has reference, as did the prior versions of the Code section, to the actual trial of a case rather than to proceedings on pre-trial motions, we hold that the trial court did not err in denying the defendant’s motion to strike the voluntary dismissal.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75506.
    McCOY v. THE STATE.
    (363 SE2d 628)
   Banke, Presiding Judge.

McCoy appeals his convictions of burglary and theft by taking. Held:

1. The first issue which presents itself is whether the appeal must be dismissed as untimely filed. The record discloses that the appellant was convicted and sentenced on October 28, 1986, but that his notice of appeal was not filed until December 17, 1986. In response to an objection made by the state to the timeliness of the notice of appeal, the trial judge made a specific finding that the delay was attributable to the “court’s lack of direction as to whether the . . . public defender ... or the court appointed special defender . . . would file the notice of appeal.”

In Johnson v. State, 183 Ga. App. 168 (358 SE2d 313) (1987), we noted that “an abortive attempt to appeal a criminal conviction due to a technical error on the part of the appellant’s attorney may result in a denial of the appellant’s constitutional right to effective assistance of counsel for which habeas corpus relief would lie. [Cits.]” Here, as in that case, to dismiss the appellant’s appeal would almost certainly result in just such a denial of the appellant’s due process rights. Thus, “while no issue of substantive or technical ineffective assistance of counsel has been raised by the parties, nevertheless, in the interest of judicial economy we deem it appropriate to address the merits of the appellant’s enumeration of error. [Cit.]” Id.

2. The appellant contends that his conviction of theft by taking was based on the uncorroborated testimony of an alleged accomplice. “In Georgia the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty.” Eubanks v. State, 240 Ga. 544, 545 (242 SE2d 41) (1978). However, slight corroboration of the accomplice’s testimony is sufficient. Bryant v. State, 179 Ga. App. 653, 654 (347 SE2d 301) (1986). The testimony of the accomplice in this case was sufficiently corroborated by the testimony of other participants connecting the appellant to the offense.

3. The appellant further contends the evidence was insufficient to support his convictions due to the state’s failure to introduce the stolen property into evidence. The best evidence rule “does not require that chattels be introduced in evidence.” Adams v. State, 142 Ga. App. 252, 254 (235 SE2d 667) (1977). The items in question were amply identified through photographs and serial numbers, and we can conceive of no harm which could have resulted to the appellant from the state’s failure to introduce the items themselves into evidence. Viewed in the light most favorable to the verdict, the evidence presented at the trial was sufficient to enable a rational trier of fact to find the appellant guilty of both the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs in Divisions 2 and 3 and in judgment only.

Decided December 4, 1987.

David C. Jones, Jr., for appellant.

Timothy G. Madison, District Attorney, James E. Sherrill, John G. Wilbanks, Jr., Assistant District Attorneys, for appellee.


text:
    75522.
    WATSON et al. v. SOUTHERN INSURANCE COMPANY OF DALLAS, TEXAS.
    (363 SE2d 629)
   Banke, Presiding Judge.

This is an appeal from a summary judgment entered in favor of an automobile liability insurance carrier in an action to recover damages for its refusal either to defend or pay a claim arising from the use of the vehicle identified in the policy declarations.

The policy was issued to appellant Mary Hogan Watson on April 1, 1986. However, the vehicle described in the policy declarations was not owned by her but by her brother, appellant Ronnie Hogan, who resided in a separate household. At the time Ms. Watson applied for the policy, she was the primary custodian and operator of the vehicle, although Mr. Hogan also used it from time to time. While the policy was still in force, Ms. Watson returned the vehicle to the possession of her brother due to a decision on her part to move to another town. Shortly thereafter, on May 30, 1986, Mr. Hogan was involved in a collision while driving the vehicle, resulting in the entry of a judgment against him for property damage in the amount of $439.86, plus court costs. Ms. Watson was not a party to the litigation which gave rise to that judgment, nor was any claim otherwise asserted against her as a result of the collision. She nevertheless joined with Mr. Hogan in bringing this suit against the appellee insurer to recover damages for its alleged refusal to recognize its obligations under the policy.

The trial court granted summary judgment against Ms. Watson on the ground that no claim had been asserted against her which the appellee could have been expected to defend or pay. The court granted summary judgment against Mr. Hogan based on the language of the policy, which specified that persons other than the named insured were covered only with respect to their use or operation of a vehicle “owned by the named insured arid described in the declarations.” Held:

1. We must agree with the trial court that Ms. Watson has alleged no injury arising from the appellee’s alleged breach of its obligations under the insurance contract. Consequently, we hold that the trial court did not err in entering summary judgment against her.

2. The situation with respect to Mr. Hogan is quite different. In the first place, there would appear to be no question that Ms. Watson, as the then primary custodian of the vehicle, was authorized to obtain liability coverage on it, notwithstanding her lack of an ownership interest therein. “ ‘[W]e can perceive no reason why [one] though having no insurable interest in the car itself, could not obtain liability insurance ... to protect [himself] against the eventualities that might occur when the vehicle should be used [in such circumstances as would potentially result in his vicarious liability]. The policy here does not insure against loss of the vehicle; it insures against liability.’ ” Auto-Owners Ins. Co. v. Smith, 178 Ga. App. 420, 421 (343 SE2d 129) (1986), citing Great American Ins. Co. v. Lipe, 116 Ga. App. 169, 172-173 (156 SE2d 490) (1967).

While acknowledging that Ms. Watson had an “insurable interest” in the vehicle for liability insurance purposes, the appellee contends that it is nevertheless protected by the language of the policy, which, unlike the language of the policy under consideration in Auto-Owners Ins. Co. v. Smith, supra, extended coverage to persons other than the named insured only in connection with their use of a vehicle which was both “owned by the named insured and described in the declarations.” We find this argument somewhat disingenuous, given that there was no such vehicle in existence; and we conclude that to give effect to such a blanket exclusion of liability coverage for the operation of the very vehicle described in the policy declarations would be inconsistent with “the public policy of our state, enunciated in the advent of compulsory motor vehicle liability insurance [,] that innocent persons who are injured should have an adequate recourse for the recovery of their damages.” Anderson v. Southeastern Fid. Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983).

Additionally, it is apparent without dispute from Ms. Watson’s deposition testimony that she showed the car’s title to the insurance agent at the time she applied for the coverage so that he could obtain the vehicle description from it. There being no question that Mr. Hogan was identified on the title as the owner of the vehicle, it follows that the appellee is estopped from asserting Mr. Hogan’s ownership of the vehicle as a defense to the present action. Accord Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (2) (174 SE2d 591) (1970); Ga. Mut. Ins. Co. v. Nix, 113 Ga. App. 735, 737 (149 SE2d 494) (1966). For these reasons, we hold that the trial court erred in granting summary judgment to the appellee with respect to Mr. Hogan’s claim.

3. Also enumerated as error is the purported denial of a motion for summary judgment filed by the appellants. However, an examination of the trial court’s order reveals that no ruling was entered on that motion. Consequently, this enumeration of error provides nothing for review.

Decided December 4, 1987.

Britt R. Priddy, for appellants.

Howard S. McKelvey, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    75620.
    SPARKS v. THE STATE.
    (363 SE2d 631)
   Deen, Presiding Judge.

This case concerns the armed robbery of a neighborhood “beer store.” The sole clerk on duty was stocking the shelves when he was surprised by a man who pointed a pistol at him and ordered him to give him the contents of the cash drawer. During the transaction the clerk fell to the floor, striking his head on a sharp corner and sustaining an injury. The robber escaped with $302 in cash. A young man sitting in a car parked nearby saw the robber emerge from the store and subsequently made positive identification of appellant as the perpetrator.

Only a few minutes after the incident was reported, police picked up a person in the neighborhood, one Stewart, who in a general way fit the description the clerk/victim had given of his assailant. The victim, still somewhat dizzy from the blow to his head, tentatively identified the captive as the robber. Some half-hour later, one of the investigating officers, who had had his memory jogged by the victim’s description of the assailant’s “bumpy” cheeks, returned to the store carrying a photograph of appellant and those of four other persons of generally similar appearance. The officer took appellant’s photograph from his pocket and laid it on the counter and was in the process of removing the other four from his pocket when the victim positively identified the photograph of appellant as his assailant. The next day the victim picked appellant’s photograph from a folder containing pictures of five different males of generally similar appearance and again made a positive identification, emphasizing the distinctiveness of the “bumpy” cheeks.

After trial and conviction on counts of aggravated assault, possession of a firearm by a felon, and armed robbery, the case was appealed to this court in 1986, appellant enumerating as error the denial of his motion to suppress the pretrial identification of his photograph; the imposition of separate sentences for armed robbery and the allegedly lesser included offense of aggravated assault; and the denial of his motion for mistrial based on the prosecutor’s use of peremptory challenges for the alleged purpose of excluding blacks from the jury, in violation of Batson v. Kentucky, 476 U. S. _ (106 SC 1712, 90 LE2d 69) (1986). The record showed that the trial court had overruled defense counsel’s objections to the exclusion of blacks without first requiring the prosecuting attorney to give an explanation for his exercise of peremptory challenges. This court therefore remanded the case for proceedings consistent with the mandate of Batson and did not address the remaining enumerations of error.

On remand the prosecutor stated specific “racially neutral” reasons (in each instance, that the prospective juror was somehow related to the defendant or was in some way involved with the criminal justice system) for having rejected each of the black persons eliminated by peremptory challenge, and the trial court held that there had been no violation of appellant’s constitutionally guaranteed rights to due process, equal protection, and trial by an impartial jury. Sparks then appealed to this court for review of the remaining enumerations of error. Held:

1. The State concedes that, in the fact situation of the instant case, appellant is correct in contending that aggravated assault (here, assault with a deadly weapon) was a lesser offense included in armed robbery; that the aggravated assault charge therefore merged with that of armed robbery; and that the trial court erred in imposing separate, consecutive sentences for each offense. We agree that, under OCGA § 16-1-7, this was error and that the case must once again be remanded, so that the conviction and sentence on the aggravated assault charge may be vacated. See OCGA § 16-1-6 (1); Hambrick v. State, 256 Ga. 148, 150 (344 SE2d 639) (1986); Young v. State, 177 Ga. App. 756 (341 SE2d 286) (1986).

2. Appellant contends that the victim’s pretrial identification of his photograph violated the protections mandated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), and related cases. In Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968), the Supreme Court held, at 384, that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Thus there is “a two-step inquiry”: (1) whether there was an impermissibly suggestive photographic identification procedure, and (2) if so, whether this resulted in a substantial likelihood of irreparable misidentification. Clark v. State, 149 Ga. App. 641, 643 (255 SE2d 110) (1979). “It is the likelihood of misidentification which violates a defendant’s right to due process ...” Neil v. Biggers, supra at 198. “The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process.” Id. at 199. “Each case must be considered on its own facts, and the due process test looks to the totality of the surrounding circumstances. [Cits.]” Gravitt v. State, 239 Ga. 709, 710 (239 SE2d 149) (1977).

In the instant case we are troubled by the fact, albeit perhaps fortuitous, that the first photograph which the officer removed from his pocket was that of the appellant. It may well have been the officer’s intention, as he testified, to show all five of the photographs, and to show them in random order; but the fact that the first — and, as it turned out, the only — photograph actually shown was that of the appellant does at least arguably render the circumstances of the showing so suggestive as to cast doubt upon the reliability of the identification. Without corroboration, such evidence would be of at least dubious admissibility.

In the case at bar, however, there were other circumstances present which would effectively counteract any impermissible suggestiveness that might have been created. The first fact tending to negate the possibly deleterious effect of the photographic identification procedure is that the. victim’s initial identification of Stewart, the person arrested in the vicinity only minutes after the robbery, was only tentative and, as brought out at trial, was made when the victim was still groggy from his head injury. (“It dizzed [sic] me,” the victim/clerk testified.) Second, prior to being confronted by Stewart, the clerk had given investigating officers a rather detailed description of the assailant’s facial features, with especial reference to the prominent “bumps” on his cheeks; Stewart had no such “bumps,” whereas appellant decidedly did. Third, when the clerk initially saw the photograph, and again when he saw the full folder of five photographs, he was positive and unwavering in his identification of appellant as the robber. Fourth, there was the uncontested testimony of the other eyewitness, the person sitting in the parked car, which positively identified appellant, thereby corroborating the victim’s identification. Fifth, the alibi evidence presented by the defendant, consisting solely of his own testimony and that of his family and “girl friends,” was unconvincing, was unsupported by any objective evidence, and was contradicted at a number of points by the testimony of others, including some of his “friends.” His alibi defense in no wise met the statutory criterion of “excluding] the possibility of [defendant’s] presence” at the scene of the crime. OCGA § 16-3-40. Moreover, the record indicates that the “factors to be considered in evaluating the likelihood of misidentification,” Neil v. Biggers, supra at 199, which applied to the facts of the instant case, tend to support the identification made by the victim and to militate against “the likelihood of misidentification which violates a defendant’s right to due process.” Id. at 198.

Decided December 4, 1987.

Bentley C. Adams III, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, for appellee.

In “the totality of the circumstances,” then, the likelihood that admission of the arguably tainted evidence would produce an “irreparable” misidentification such as would lead to conviction of the wrong person seems to us to be, at best, minimal rather than “substantial.” Clark v. State, supra at 143. The trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed in part and reversed in part; case remanded with direction.

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


text:
    75710.
    DANIEL v. THE STATE.
    (363 SE2d 634)
   Deen, Presiding Judge.

Appellant Jack B. Daniel, Jr. was indicted and tried for one count of armed robbery and two counts of recidivism. Found guilty of all three counts and sentenced to life imprisonment, he appeals from the denial of his motion for new trial.

The evidence introduced at trial showed that on July 29, 1985, the Golden Pantry Store in Oconee County was robbed. The store closed at 11 p.m., and after completing the paperwork and cleaning up, the clerk on duty that night was returning from the trash dumpster when he heard someone running behind him and was accosted by two black males wearing stocking masks. One of the men had a gun and the other had a knife with an eight-to-ten-inch blade. The clerk was forced to open the safe from which the men removed a red Oconee State Bank deposit bag containing about $2,000 in bills, and fled. During the robbery the mask on the man with the knife worked up over his nose, and the clerk recognized him by his features and distinctive facial hair as having been in the store previously. Appellant was identified in court by the clerk as this robber.

Another witness testified that while studying late on the night in question in his home across the street from the store he saw two black men who were “acting suspiciously” enter it after store hours. While the witness watched through the scope of his deer rifle, he told his wife to call the police. Moments after the men ran out of the store, a deputy sheriff arrived and, almost simultaneously, a brownish Ford Torino automobile raced away at high speed. After receiving a radio report another deputy spotted the car, occupied by two black males, and gave chase. Before he caught up with the car, however, it was wrecked and abandoned. Found inside was a billfold containing appellant’s driver’s license, stocking masks, a gun and a knife. The masks and gun were identified by the victim as the ones used in the robbery, and the knife was described as “similar” in size and make. A red Oconee State Bank money bag was also found in the car, but it contained coins rather than bills.

The next day a photographic lineup was assembled by placing appellant’s driver’s license and the driver’s licenses of five other men of similar age and physical features, including mustaches and facial hair, in a manila folder with holes cut out to display the men’s photographs. The victim identified appellant as one of the men who robbed him. Appellant was arrested the following day, and the photograph taken when he was booked showed that his mustache and facial hair were as described by the victim, and that the shirt he was wearing fit the description given by the other witness who observed the robbery through his rifle scope.

Appellant presented evidence that on the day in question he was picked up at his home in Athens shortly before noon by his friends John Wesley Cooper and Tony Robinson, in Robinson’s brown Ford Torino. The three drove around drinking beer and visiting various clubs and cafes until Cooper was taken home sometime between 6:30 and 8:00 p.m. After a stop to get gas and a visit to appellant’s grandmother, Robinson dropped appellant off at his house between 8:00 and 9:00 p.m. Appellant spent the rest of the evening at home with his wife and children, except for a visit at 9:30 from his brother. Tony Robinson testified that he had pled guilty to having committed the armed robbery appellant was being tried for, but that another man, not appellant, was with him that night. However, the State introduced a transcript of Robinson’s guilty plea in which he identified appellant as the man holding the knife during the robbery.

1. Appellant contends that the trial court erred in allowing in evidence a red bank bag because the foundation laid for its admission implied that it was the bag taken during the robbery when it actually was not. The bank bag was submitted in evidence along with the other items retrieved from the Ford Torino, and was admitted only after defense counsel expressly stated he had no objection to admission of any of them. However, when the district attorney asked the detective who found the bag whether there were “any coins taken in this robbery,” and the witness replied that he thought the victim had said it was all cash and checks, defense counsel objected on the ground that from the detective’s testimony the jury could only infer that there had been another robbery and thus the defense was es-topped from cross-examination. Appellant’s attorney also asserted that the State knew the bag had not been taken in the robbery on trial but wanted the jury to believe it did, and moved for a mistrial. The trial judge denied the motion, but struck the testimony as to what another witness had said, instructed the jury to disregard the statement attributed to the other witness, and polled the jury to determine that each one of them would disregard the stricken answer.

From our review of the testimony before the jury and the colloquy outside the presence of the jury concerning this incident, we find no harm occurred necessitating a mistrial. There was no attempt made by the State to connect the red bag, which was a common bank deposit bag available to anyone, to any robbery, merely to introduce it as one of the items found in the suspect’s vehicle. Having examined the questions, statements, and testimony pointed out in connection with this enumerated error, we find that the trial judge’s instructions to the jury were sufficient to prevent any prejudice to appellant in regard to his commission of another crime. See Hackney v. State, 233 Ga. 416 (4) (211 SE2d 714) (1975). In any event, “the failure to renew the motion for mistrial after the curative instructions waives the denial of the motion as an error on appeal. [Cits.]” McLendon v. State, 181 Ga. App. 851-52 (354 SE2d 193) (1987); Morgan v. State, 181 Ga. App. 113 (1) (351 SE2d 517) (1986).

2. Appellant complains that the out-of-court photographic lineup was impermissibly suggestive and therefore the trial court erred in overruling his motion to suppress evidence of his identification. It appears that between the time the lineup was displayed to the victim and the time of trial, one of the driver’s license photographs used in the display had been returned to its owner, who could not be located so as to reproduce the lineup in its original form. Thus at trial a xerox copy of the original photo was substituted. A xerox copy of the whole lineup as it was originally presented was also submitted.

Appellant argues that where law enforcement officials fail to preserve the photos comprising a pretrial photographic lineup, there is a presumption that the display was impermissibly suggestive, which was not rebutted here. We do not agree. Even assuming that the fact that one of the six original pictures was missing at the trial would raise such a presumption, its absence “merely goes to the weight to be afforded the pictorial lineup and not to its admissibility.” Huggins v. State, 173 Ga. App. 457, 459 (2) (326 SE2d 821) (1985). Not only was any such presumption adequately rebutted by the testimony regarding the manner in which the photographic display was set up, there was no indication that the identification was not based solely upon the recognition of appellant by the victim during the actual robbery. Brown v. State, 176 Ga. App. 204 (1) (335 SE2d 696) (1985); Huggins v. State, supra. Under the totality of the circumstances here we find no substantial likelihood of misidentification or that the procedure involved in the photographic display was impermissibly suggestive. Davis v. State, 180 Ga. App. 573 (3) (349 SE2d 805) (1986). Accord Baxter v. State, 254 Ga. 538 (11) (331 SE2d 561) (1985).

Decided December 4, 1987.

Edward D. Tolley, for appellant.

Harry N. Gordon, District Attorney, Kenneth W. Mauldin, Assistant District Attorney, for appellee.

3. Appellant asserts error in the charge of the court that the jury could consider his interest in the outcome of the case in determining his credibility because such an instruction had the effect of focusing the jury’s attention on his testimony and made it less credible. Appellant concedes that under Georgia law the charge as given was proper, the courts having consistently held that such an instruction merely states a self-evident fact and is not prejudicial. See, e.g., Pitts v. State, 253 Ga. 461 (5) (321 SE2d 708) (1984); Phelps v. State, 245 Ga. 338 (6) (265 SE2d 53) (1980); Henderson v. State, 153 Ga. App. 801 (8) (266 SE2d 522) (1980). He also acknowledges that the majority of courts in other jurisdictions “have failed to recognize the error inherent in an instruction such as the one contested here.” In view of the Supreme Court’s approval of such a charge, even if we agreed that it denied a defendant a fair trial, we are precluded from reconsidering the issue.

4. Appellant’s contention that the errors complained of reasonably led to his conviction does not comport with our review of the evidence, which must be viewed in the light most favorable to the verdict in the context of a motion for new trial. Beck v. State, 181 Ga. App. 681 (1) (353 SE2d 610) (1987). “The appellate court, when reviewing the general grounds, will not disturb the factfinder’s conclusions, absent an error of law, if there is competent evidence to authorize a reasonable trier of fact to find appellant guilty beyond a reasonable doubt. We find sufficient competent evidence to support such a finding. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [Cit.]” Griggs v. State, 181 Ga. App. 618 (1) (353 SE2d 97) (1987).

Judgment affirmed.

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


text:
    75727.
    LAMB v. THE STATE.
    (363 SE2d 863)
   Deen, Presiding Judge.

Appellant and one John Albers were tried before a jury for violating the Georgia Controlled Substances Act. During the presentation of the defendants’ case, the State attempted to impeach a witness by asking her about a prior arrest. An objection was made and sustained. Albers made a motion for a mistrial, but appellant did not join in the motion. The court granted the motion as to both defendants. On appeal, appellant contends that the court below erred in denying his plea in bar alleging double jeopardy because it erred in granting a mistrial over his objection. Held:

Decided December 4, 1987.

Michael C. Clark, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Futch, Elisabeth MacNamara, Assistant District Attorneys, for appellee.

The trial court found that the questioning on cross-examination of the defense witness was so prejudicial that it denied both defendants a fair trial and that the testimony so prejudiced them in the eyes of the jury “by their association with the witness who had worked with both of the defendants and been employed at a location where drugs were alleged to have been found, that the defendants could not possibly have received a fair trial even with proper curative instructions.”

The trial court has a broad discretion where there is a “manifest necessity” for declaring a mistrial and it may be granted without a defendant’s consent and over his objection. Abdi v. State, 249 Ga. 827, 828 (294 SE2d 506) (1982). Although the trial court made findings of fact in its order, this court is unable to review the evidence because appellant specifically requested in his notice of appeal that a trial transcript not be filed with this court. In the absence of a transcript, this court must assume that the trial court’s findings of fact were correct and that the prosecution’s line of questioning did in fact prejudice the defendant to the extent that he could not receive a fair trial even if the court gave proper curative instructions. See State v. Mintz, 179 Ga. App. 451 (346 SE2d 591) (1986); Brannon v. State, 176 Ga. App. 781 (337 SE2d 782) (1985).

Judgment affirmed.

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


text:
    75745.
    BERWICK v. RIORDAN PROTECTIVE SERVICES, INC.
    (363 SE2d 864)
   Deen, Presiding Judge.

The appellant, Dane Berwick, was employed as a commissioned salesman with the appellee, Riordan Protective Services, Inc. (Riordan). He commenced this action against Riordan to collect commissions on four contracts that he claimed became due after his termination of employment. The trial court directed a verdict for Riordan, and Berwick appeals.

Decided December 4, 1987.

D. Miles Stinson, for appellant.

John J. Capo, for appellee.

On September 3, 1986, Berwick procured four contracts with Equitec Properties Company, for the installation of alarm systems in four buildings. The contracts provided that payment would be due upon completion of the work and inspection and approval by the fire marshal. It was uncontroverted that the fire marshal inspected and approved three of the buildings on October 30, 1986, and the fourth on December 9, 1986. Berwick had tendered his written resignation on October 3, 1986, and on October 23, 1986, had added a notation saying that “we are even on amount due.” On October 23, 1986, he also received his last pay check for $489.91. Held:

The trial court directed a verdict for Riordan on the basis that Berwick’s receipt of the last pay check simultaneously with making the notation “even on amount due” on October 23, 1986, demanded the finding that he had settled his claim for any other commissions. The trial court would not allow Berwick to explain what “amount due” the notation referred to. Had payment under the four contracts in question been due prior to October 23, 1986, perhaps this outcome would have been proper. However, under those contracts such payment was not due until the fire marshal approved the work, which did not occur until October 30, 1986, and December 9, 1986. Under these circumstances, we cannot agree that the evidence demanded the finding that Berwick had settled his claim for commissions due under these four contracts.

Judgment reversed.

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


author: Per curiam. McMurray, Presiding Judge, Beasley, Judge,

text:
    74820.
    McGUIRE v. THE STATE.
    (363 SE2d 850)
   Per curiam.

Defendant appeals his convictions of two offenses of selling cocaine in violation of the Georgia Controlled Substances Act. Held:

1. The court erred in refusing to grant defendant’s motion for a continuance. The record and the law do not support the conclusion that the refusal of a continuance was not an abuse of discretion in the application of OCGA §§ 17-8-25 and 17-8-20.

It was charged in indictments of February 2, 1987, that on two occasions, October 2, and November 5, 1986, defendant “did . . . sell . . . cocaine.” The defense was that he did not sell it or have any criminal involvement in its sale, but that it was sold by Timmy Kirby.

Defendant secured issuance of a subpoena on February 9, 1987, for Kirby at an address in Summerville, for him to appear at trial on February 28 at the superior court in Summerville. Kirby was a resident of Chattooga County, and the subpoena was served the next day by a deputy sheriff. This is the only subpoena in the record. Defendant’s expectation that Kirby would be present explains why onlookers were not subpoenaed: there would be no need for them when the only involved person is available to testify.

When the case was sounded for trial, a Mrs. Kirby answered that Timmy Kirby was in the hospital and “can’t get here.” Defendant moved for a continuance. He proved via the sheriff that Kirby was in the hospital in Floyd County, having shot himself in the stomach, and was not excused from court attendance. The sheriff did not know the prognosis or the ability of Kirby to attend court at a later date, and defense counsel stated in his place that he had inquired of the hospital as to Kirby’s condition and was told that the hospital had no information about Kirby. The sheriff explained the refusal of information by stating that he had written to the hospital at Kirby’s mother’s request, to be on the lookout for possible problems because of threats against Kirby.

Defendant testified at the motion hearing that it was Kirby who sold the cocaine and that defendant was just a passive onlooker at the sales. Kirby completed the transactions at defendant’s girl friend’s house so as to make the undercover Agent DeLoch think it was defendant and not Kirby who was selling the cocaine, because Kirby and Agent DeLoch were related and Kirby was afraid DeLoch would tell Kirby’s mother that he was selling cocaine. Defendant refused to do the selling, he said, so Kirby did it in an equivocal way so as to still lead Agent DeLoch to believe it was defendant transacting the selling. Defendant further testified that Kirby brought and handled the cocaine and the money throughout the exchange (except on the first occasion when he tried to give it to defendant who handed it back before DeLoch was brought in, and when he made change for DeLoch). Defendant actually refused the money, according to him, telling DeLoch the drugs were not his and therefore he did not want any money. This happened both times, except on the second occasion DeLoch did not try to give the money to defendant.

Four other people were present on the first occasion, except that the girl friend was in the living room rather than in the kitchen throughout. The girl friend Diane Ramey, defendant’s sister Pauline Laney, Cynthia Butler or Campbell, and Tommy Hartline were the others. All but Diane were playing cards on the table where the cocaine and money were placed.

On the second occasion, the girl friend and sister were present, and the transaction occurred in the kitchen again rather than in the living room where defendant was watching television with his girl friend. Defendant saw that the cocaine and the money were put on the kitchen table, saw DeLoch pick up the cocaine, and later saw Kirby go back into the kitchen for the money. The subject was not discussed. The girl friend did not witness it. Defendant himself bought cocaine from Kirby immediately following that incident, and previously, but never sold or distributed cocaine.

This being defendant’s version of the events, the testimony of Kirby was crucial or, if his presence could not be obtained, then that of the other onlookers. Defendant’s sister testified but was somewhat impeached by her familial relationship and prior record. No opportunity was given to defendant to secure Kirby at a later time or, if he was to remain unavailable, subpoena any of the other witnesses. Yet he had gone to some lengths to follow the requirements of the two applicable Code sections. The evidence presented to the court in the form of testimony by the sheriff and defendant and the statements in his place by defendant’s counsel showed that he had used “due diligence.” OCGA § 17-8-25. Yet the court simply denied the motion, ruling without specification that “counsel has not shown all of the proper elements for a continuance.”

We look at the requirements. It is beyond dispute that the witness was absent, that he had been subpoenaed, that he did not reside more than 100 miles from the place of trial, that the witness was not absent by permission of the applicant. Defendant laid out the facts expected to be proved by the absent witness, facts which would absolve defendant. Next, considering the direct involvement of Kirby, whom defendant believed to be a confidential informant, it could not be said that his testimony was not material. For example, Agent DeLoch testified at trial that Kirby was not present at the second transaction, whereas defendant at the motion hearing and his sister at the trial unequivocally stated that he was.

Insofar as the applicant showing that he expected he would be able to procure Kirby’s testimony at the next term, he showed this to the greatest extent he could, the actions of the sheriff having coincidentally prevented his discovery of Kirby’s condition and prognosis. At the least, there was no evidence that Kirby would not have recovered sufficiently within the following weeks in order to appear. If Kirby’s unavailability continued to the next term of court, defendant could seek the testimony of the second-best, but in the circumstances of his absence important, onlookers.

Finally, the circumstances also compel the conclusion that the application was not made for the purpose of delay but for procurement of the testimony of Kirby, whose presence was practically impossible. See Brooks v. State, 3 Ga. App. 458 (60 SE 213) (1907). Compare Cobb v. State, 110 Ga. 314 (1) (35 SE 178) (1900), and Sutton v. State, 70 Ga. App. 499 (28 SE2d 663) (1944). The Sutton case, at Division 3, recognizes that there are some causes of delay which are outside defendant’s control. Further evidence of the fact that delay itself was not the purpose but only the result is the indication in the record that defendant was jailed awaiting trial, not having been able to make the $150,000 bond set and there being no action recorded on the application for bond reduction. A delay would not liberate him.

All of the statutory factors were present to entitle defendant to a continuance. The court was obliged to honor the subpoena by granting the continuance. No impediment for doing so appears. See Murphy v. State, 132 Ga. App. 654, 655 (1) (209 SE2d 101) (1974). Where the requirements of the statute are met, the court has no discretion to deny the continuance. Brooks v. State, supra at 463.

We do not even have to reach state or federal constitutional considerations of compulsory process or due process of law, which defendant newly raises at this level, because the statute suffices to protect his right to a fair trial in this instance. It is the statute’s application by the court below which was faulty.

Compare Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713) (1981), where as here one of the desired witnesses was the identified confidential informant. There the court rested reversal on violations of federal fifth and sixth amendment rights, having found the statute in those circumstances an inadequate safeguard of defendant’s rights. Also in Murphy v. State, supra at 655-656, the statute fell short; the state constitution was employed.

On the other hand, the statute was applied in Tomlin v. State, 170 Ga. App. 123, 125 (5) (316 SE2d 570) (1984), where the absence of an alleged confidential informant, who had been subpoenaed, was the basis for a motion for continuance. The court held there was no error in denying the continuance because defendant had not complied with the statute. But here we have compliance. In Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986), the absent witness had not even been subpoenaed. The same is true in Brown v. State, 169 Ga. App. 520, 521 (1) (313 SE2d 777) (1984). In Luttrell v. State, 176 Ga. App. 508 (3) (336 SE2d 369) (1985), defendant did not show that he expected to be able to procure the witness’ testimony at the next term, but no explanation for the lack of assurance was given there, unlike the instant case.

OCGA §§ 17-8-22 and 17-8-25, taken together, attempt to balance a defendant’s rights to compulsory process and due process against the State’s rights to go forward as planned and to a speedy trial, and these provisions apparently embrace also a recognition of the court’s interest in administering its business efficiently. In the present case, the application of these statutes required a continuance, and because defendant was deprived of a material witness as a result of its denial, a new trial should be had.

2. Defendant enumerates as error the trial court’s failure to require the State to make a showing of neutral, non-discriminatory reasons for excluding all black jurors by use of peremptory challenges. Defendant, who is white, argues that he was thereby deprived of his right to a fair cross-section in the selection of his jury. “Resolution of this enumeration of error ‘properly turns on the application of equal protection principles.’ Batson v. Kentucky, [476] U. S. _ [(fn. 4) 106 SC 1712, 90 LE2d 69].” Pope v. State, 256 Ga. 195, 202 (7 (f)) (345 SE2d 831).

“The equal protection clause of the United States Constitution guarantees a criminal defendant that the State will not exclude members of his race from the jury on account of race or on the assumption that members of his race will be unable to impartially consider the State’s case. See Batson v. Kentucky, 476 U. S. _ (106 SC 1712, 90 LE2d 69); Swain v. Alabama, 380 U. S. 202 (85 SC 824, 13 LE2d 759); Strauder v. West Virginia, 100 U. S. 303, 309 (25 LE 664). However, since defendant was not a member of the allegedly excluded class, he lacked standing to make an equal protection claim. See in this regard Batson v. Kentucky, 476 U. S. _, supra, and Ingram v. State, 253 Ga. 622, 627 (fn. 4) (323 SE2d 801).” Heaton v. State, 180 Ga. App. 718, 719 (2) (350 SE2d 480). See also Pope v. State, 256 Ga. 195, 202 (7 (f)), supra.

3. Following the trial in the case sub judice, defendant wrote a letter to the trial court suggesting that his appointed trial counsel provided ineffective assistance at trial. Defendant requested that another lawyer be appointed to appeal his case. Following receipt of the defendant’s letter the trial court, sua sponte, convened a hearing at which both defendant and his trial counsel were present. At that time the trial court appointed defendant’s trial counsel to represent defendant on appeal. In this connection, the trial court directed that defense counsel was not to file any claim against himself for ineffectiveness and stated for the record that defendant had made no showing of ineffective assistance of counsel.

Defendant enumerates as error the trial court appointing trial counsel, against whom defendant charged ineffective assistance at trial, to represent defendant on appeal. The trial court’s direction to defense counsel against raising claims of ineffective counsel against himself is consistent with the ruling in Castell v. Kemp, 254 Ga. 556 (331 SE2d 528), which holds that defense counsel is precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition against a lawyer acting as a witness. In view of the present posture of the case sub judice, the merits of defendant’s claim of ineffective assistance of counsel or as to the trial court’s finding that defendant has made no sufficient showing in this regard are not properly before us. Moreover, under the particular facts and circumstances of the case sub judice, defendant has not waived his claim of ineffective assistance of counsel and same is still viable. As there has been no waiver, any error in the appointment of trial counsel to represent defendant on appeal is harmless. See Nixon v. State, 255 Ga. 656, 657 (fn. 1) (340 SE2d 7).

Judgment affirmed in part and reversed in part.

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

McMurray, Presiding Judge,

dissenting.

OCGA § 17-8-25 sets forth the requirements which must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness. Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250); Brown v. State, 169 Ga. App. 520, 521 (1) (313 SE2d 777); Luttrell v. State, 176 Ga. App. 508 (3) (336 SE2d 369).

In the case sub judice, defendant did not show that he expected to be able to procure the testimony of the witness at the next term of court or that the request for a continuance was not made for the purpose of delay. This should prevent our finding that the trial court erred in denying the continuance. Luttrell v. State, 176 Ga. App. 508 (3), supra; Cobb v. State, 110 Ga. 314 (1) (35 SE 178); Sutton v. State, 70 Ga. App. 499 (1, 4) (28 SE2d 663). While defendant contends that he was unable to provide proof of the witness’ ability to attend the next term because of action taken by the sheriff to protect the witness, such a conclusion was not compelled by defendant’s evidence in this regard. See OCGA § 17-8-20 and Lucas v. State, 174 Ga. App. 580 (1) (330 SE2d 792). Additionally, it is noted that the case sub judice is not one of those cases such as Brooks v. State, 3 Ga. App. 458 (60 SE 213), wherein it is apparent as a matter of law from the evidence adduced in behalf of defendant’s motion that it is not his purpose to delay the case, but only to procure the attendance of his witness. In the case sub judice, there is no basis for holding the denial of the motion an abuse of the trial court’s discretion. Curry v. State, 177 Ga. App. 609 (1), supra. Therefore, I respectfully dissent as to Division 1 of the majority opinion, as in my view the case sub judice should be affirmed in its entirety.

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

Beasley, Judge,

concurring in part and dissenting in part.

While I fully agree with the rest of the opinion, I cannot concur in Division 2 and would remand for a hearing pursuant to Batson v. Kentucky, 476 U. S. __ (106 SC 1712, 90 LE2d 69) (1986), were not a new trial necessary.

The court in Division 2 concludes that the white defendant has no standing to test, on equal protection grounds, the exclusion of blacks from the jury by way of the state’s exercise of the peremptory challenge.

Defendant’s grounds at trial were not only federal constitutional equal protection, but also federal constitutional due process and rights “under Georgia laws to a fair cross section from which to select a jury.” In support of standing, which the court ruled he did not have, he cited Peters v. Kiff, 407 U. S. 493 (92 SC 2163, 33 LE2d 83) (1972). In that case, a white man claimed that there was a systematic exclusion of Negroes from grand jury and petit jury service.

On appeal, McGuire rests on federal due process as well as equal protection, and to his right to a fair and impartial jury drawn from a fair cross section, under the sixth and fourteenth amendments and under Georgia law. With respect to the latter, he cites Devier v. State, 250 Ga. 652 (1) (300 SE2d 490) (1983), and West v. State, 252 Ga. 156 (313 SE2d 67) (1984).

The decision in Devier was based on the statutory requirement of a fairly representative cross section of the intelligent and upright citizens of the county, OCGA § 15-12-40 (a) (1), to serve as traverse jurors, which it was concluded applied also to grand jurors, citing Sanders v. State, 237 Ga. 858 (1) (230 SE2d 291) (1976). Sanders, too, was at bottom a statutory inquiry, being based on Gould v. State, 131 Ga. App. 811 (207 SE2d 519) (1974), affirmed in part and reversed in part, 232 Ga. 844 (209 SE2d 312) (1974). West followed Devier in finding that the grand juries indicting each of these male defendants were statutorily infirm in their underrepresentation of women.

The trial court’s as well as the majority’s rejection of McGuire’s challenge was based on Pope v. State, 256 Ga. 195, 202 (7) (f) (345 SE2d 831) (1986), but that case dealt only with an equal protection ground. So did Heaton v. State, 180 Ga. App. 718, 719 (2) (350 SE2d 480) (1986), which also underlies the majority’s opinion here. The decision in Batson, upon which Pope turned, was also founded on the requirements of equal protection. That is why the claim, to be reached on its merits, had to be that of a black defendant, which Batson was.

Neither the United States Supreme Court in the Batson decision, nor the Georgia Supreme Court in the Pope decision, ruled that only a black defendant had standing to challenge the racially neutral exercise of the peremptory challenge. Here we have in addition other laws called to support the request for a showing of racially neutral peremptory challenge exercise by the state, and none of them were ruled on in Batson or Pope. The majority recognizes that there is a difference, by citing Ingram v. State, 253 Ga. 622, 627 (fn. 4) (323 SE2d 801) (1984), which mentions the different standing issues when due process rather than equal protection are raised.

In fact, Batson, expressly points out: “Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try ... As long ago as Strauder [v. West Virginia, 100 U. S. 303 (25 LE 664) (1880)] . . . the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror . . . The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice . . . the [peremptory] challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” Batson v. Kentucky, supra, 90 LE2d at 81, 89. (Emphasis supplied.) See Strauder v. West Virginia, supra, 100 U. S. at 308, 309, where it is recognized that exclusion of blacks as jurors denies them equal protection of the laws in violation of the Fourteenth Amendment. The harm to both prospective grand jury foremen from purposeful discrimination and to “the fundamental values of our judicial system and our society as a whole” were also deemed routable by a criminal defendant in Rose v. Mitchell, 443 U. S. 545, 556 (99 SC 2993, 61 LE2d 739) (1979). Standing to raise even an equal protection claim was granted to a white defendant in United States v. Sneed, 729 F2d 1333 (11th Cir. 1984).

Thus I would not hold that defendant lacked standing to raise the due process and statutory bases and thereby attack the peremptory challenge exercise. If either of these bases apply to the peremptory challenge question, then obviously a white person can raise them, as he would be harmed by their violation. In addition, how else could the integrity of the system be protected if the question cannot be raised in trials of white defendants as well as in trials of black defendants? A black jury venireman could not do it. Yet his or her right to serve is not limited to the trials of black defendants.

Decided December 4, 1987.

W. Benjamin Ballenger, for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Jr., Assistant District Attorney, for appellee.

It would be arrogant of our law if it prevented one accused of a crime from calling attention to the possibility that the trial procedure was being used by the state’s representative to discriminate against a class of citizens by their exclusion from participation in the process of judging the accused. It would be blind legalism to ask, “What is it to you, who are white?” when even the state statute requires a representative cross-section. The process by which we adjudge guilt should not itself be immune from examination because of the race of the challenger.

I am authorized to state that Presiding Judge Deen and Judge Benham join in this opinion.

       Thus, the appellate court can review the question, if properly raised, even if the statutory requirements are not met. The particular discretion granted by OCGA § 17-8-22 may be insufficient to protect constitutional rights.

       Harm to the defendant was expressly ruled not to be a prerequisite for a challenge of purposeful discrimination in the selection of the grand jury foreman, in Rose v. Mitchell, supra at 550 (II A), which dealt with an equal protection claim.


author: Sognier, Judge.

text:
    75110.
    SPIVEY v. SELLERS.
    (363 SE2d 856)
   Sognier, Judge.

Kay Sellers, by next friend Francis Sellers, brought suit against Donald Spivey and his father seeking damages for injuries she incurred in an automobile accident. The trial court granted summary judgment in favor of Spivey’s father but denied the motion made by Donald Spivey. We granted his application for interlocutory appeal.

The record reveals that appellee, then a 15-year-old, was among a group of high school students, recent graduates and their friends who gathered around a bonfire on the beach at Skidaway Island to talk and consume alcoholic beverages, among other activities. Appellee and several others had accompanied appellant to the beach in a car owned by appellant’s father but under appellant’s exclusive control. Appellant, who was 21 at the time, had purchased whiskey and beer, some of which he consumed during the bonfire party. Appellee alleged that appellant enticed and induced her to consume alcohol, “got her drunk,” and then induced and allowed her to drive his father’s automobile which appellee crashed, she alone sustaining certain injuries.

We note that this is not a case in which a parent seeks recovery in tort against one who, without the parent’s consent, furnished alcoholic beverages to his or her minor child. OCGA § 51-1-18 (a); see also Stepperson, Inc. v. Long, 256 Ga. 838, 840 (1) (353 SE2d 461) (1987). Neither is this an instance in which alcoholic beverages were unknowingly consumed by the minor with physical harm resulting from the consumption itself, thereby placing a right in the infant to recover damages for physical injuries inflicted upon his person. Compare Dodd v. Slater, 101 Ga. App. 362, 366 (114 SE2d 170) (1960) (22-month-old infant injured when given vodka mixed in tomato juice). Rather, this case seems to fall directly in the category of situations addressed by the Supreme Court in footnote 7 of Sutter v. Hutchings, 254 Ga. 194, 198 (327 SE2d 716) (1985), in which it was explained “why providing alcohol to a noticeably intoxicated [minor] automobile driver does not make the provider liable for injuries to the [minor] consumer. [Cits.] Although the provider owes a duty not to provide alcohol to a driver who is noticeably intoxicated, the driver also owes a duty to exercise ordinary care for his own safety. [Cits.] As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider. [Cit.]”

Appellee would have this court distinguish this case from Sutter on the basis that appellant did not “provide” alcohol for appellee to consume but instead “induced” or “enticed” appellee to consume alcohol. Webster’s New International Dictionary (2d ed.) defines “induce” as “[t]o lead on; to influence; to prevail on; to move by persuasion or influence. . . .” The word “entice” is defined therein as “[t]o incite or instigate. (2) To draw on by exciting hope or desire; to allure; attract. . . . Often, in a bad sense, to lead astray; to induce to evil; to tempt.” Thus, appellee does not assert she was not “provided” alcohol but rather asserts that she consumed the alcohol provided by appellant only because he influenced or tempted her into doing so.

While we recognize that negative influence exerted on young people by their peers can unfortunately pressure them into taking illegal actions, this does not negate the fact that a person who has attained the age of 13 years is responsible for both his crimes and his torts. See OCGA §§ 16-3-1; 51-11-6; see also Green v. Gaydon, 174 Ga. App. 796, 798 (2) (331 SE2d 106) (1985). There is no allegation or evidence in the record that appellee involuntarily or unknowingly consumed alcohol, compare Dodd, supra, or that her consumption thereof was the result of coercion or intimidation so as to negate the presumption of capacity, through which she is chargeable with the same measure of caution as is an adult. See Central R. Co. v. Phillips, 91 Ga. 526, 529 (17 SE 952) (1893). Thus, the evidence shows that appellee, a mentally responsible person of 15 years, consumed alcoholic beverages at a time when it was illegal for any person under the age of 19 to purchase or knowingly possess any alcoholic beverage, with the exception of certain situations not applicable here. OCGA § 3-3-23 (a) (2). Under the rationale of Sutter, supra, no distinction may be drawn between alcoholic beverages knowingly possessed by a minor who was provided (or sold, supplied or furnished) those beverages and alcoholic beverages knowingly possessed by a minor who was enticed or induced into consuming those beverages since in both instances the consumer had “the last opportunity to avoid the effect of the alcohol, by not drinking. . . .” Id. Therefore, the trial court erred by holding that Sutter, supra, was not applicable to the case sub judice.

Appellee also argues that the trial court correctly denied summary judgment to appellant because appellant is liable to her for inducing and allowing her to drive his automobile knowing that she was unlicensed, in violation of OCGA § 40-5-122. The evidence is unrebutted that appellee had misrepresented to appellant that she had a valid instruction permit, or “learner’s license,” OCGA § 40-5-24 (a), and that appellant allowed her to drive on the basis of that misrepresentation. Thus, even had appellant “induced” appellee to drive, as she alleges, the evidence is uncontroverted that appellant was inducing one whom he had mistakenly been led to believe was properly licensed. However, we note that appellant stated in his deposition that he sat in the rear seat of his automobile while Tammy St. Lawrence, another participant at the bonfire party, sat in the front seat beside appellee. The record fails to reflect affirmatively that St. Lawrence, as the one occupying the seat beside the driver, was at least 18 years of age, was licensed as a driver for a Class 1 vehicle such as appellant’s and was fit and capable of exercising control over the vehicle, as required by OCGA § 40-5-24 (a), thereby entitling appellee, a learner, to drive appellant’s car upon a public highway. Thus, construing the evidence as we must in favor of appellee as the non-movant, see generally Progressive Ins. Co. v. Kelly, 181 Ga. App. 181 (351 SE2d 544) (1986), it appears appellant may have acted in violation of OCGA § 40-5-122 by knowingly authorizing or permitting a motor vehicle under his control to be driven upon a highway by one not authorized to drive.

However, even assuming appellant violated OCGA § 40-5-122, this violation does not entitle appellee to recover. “ ‘(a) Actionable negligence consists in a violation of some duty owed to another person; (b) in order for the violation of some statutory duty to be negligence per se, the person claiming it as such must be within the class for whose benefit the statute was passed; (c) if there is no person upon whom the violation of the statute can operate, there is no breach of duty; and (d) the court in determining whether the violation of a statutory requirement is negligence per se as to the person complaining thereof upon which a cause of action will rest, will look to the particular statute in respect to its purposes, that is, the evils it was intended to guard against and the persons it was intended to protect.’ ” Jones v. Dixie Drive-It-Yourself System, 97 Ga. App. 669, 670 (104 SE2d 497) (1958). In Jones, the rental company which had leased an automobile to an unlicensed driver argued it was not liable to the pedestrian struck and injured by the driver under the provisions of Code Ann. § 92A-9916 (Ga. L. 1937, pp. 322, 351-352). Construing the Act of 1937 (Ga. L. 1937, p. 322), the Jones court determined that the operation of an automobile without first obtaining an operator’s license is an infraction of Georgia laws enacted for the public safety to regulate the use of public streets and roads and to make them more safe for persons to travel by preventing indiscriminate driving of motor vehicles of any kind upon Georgia’s vehicular traffic routes by inexperienced, incompetent, or improper persons. Id. at 670, 671-672. Although Code Ann. § 92A-9916, repealed by Ga. L. 1975, pp. 1008, 1044, and replaced by Code Ann. § 68B-404 (OCGA § 40-5-122), differs from the latter statutes by requiring the ascertainment of whether the driver is unlicensed, see Thomason v. Harper, 162 Ga. App. 441, 447 (289 SE2d 773) (1982), we find the court’s analysis in Jones of the purpose behind Georgia’s licensing laws equally applicable to current legislation.

Thus, we hold that the General Assembly intended by enacting OCGA § 40-5-122 to protect the public by preventing incompetent, inexperienced or improper drivers from gaining access to public highways and causing injury and damage thereon. The means chosen to accomplish this end was to allow only those persons whose competency had been proven, as signified by a valid driver’s license, to drive motor vehicles on Georgia’s public highways. Appellee argues, however, that although her unlicensed driving on a public highway constituted the hazard against which OCGA § 40-5-122 sought to protect the public, she should also be included in the class of persons for whose benefit the statute was passed because, had it not been for appellant’s violation of OCGA § 40-5-122, she would not have been able to violate OCGA § 40-5-20 (a), which provides that “[n]o person . . . shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license. . . .” See also OCGA § 40-5-120 (7).

Decided December 4, 1987.

David R. Smith, for appellant.

Charles R. Ashman, James B. Ashby, for appellee.

We do not agree with appellee that OCGA § 40-5-122, enacted to prevent drivers like appellee from gaining access to our public highways, was enacted as well to allow appellee to obtain recovery when she violated OCGA § 40-5-20 (a) by operating a motor vehicle without a license, thereby creating the hazard her own driving posed. Thus, we need not consider the concept of “in pari delicto,” in view of our determination that appellee, as a mentally capable and criminally responsible person illegally operating a motor vehicle, is not among the class of persons for whose benefit OCGA § 40-5-122 imposes a duty, the breach of which constitutes actionable negligence.

Finally, appellee argues that questions of fact exist whether appellant was negligent by failing to make appellee stop driving after appellee demonstrated her incompetence when she swerved slightly off then back onto the highway some 30 seconds before she crashed the automobile. However, since it is uncontroverted that appellee was the driver of the vehicle, it was appellee who had the last opportunity to avoid the effect of the alcohol, her own incompetence and any negligence on appellant’s part by ceasing to operate the automobile she was in control of prior to the crash. See Sutter, supra. Thus, notwithstanding any negligence in appellant’s failure to seize control of the car while seated in the rear in an apparently intoxicated state, appellee as the driver cannot recover for her injuries from appellant. OCGA § 51-11-7.

No genuine issues of material fact appearing of record, appellant was entitled to judgment as a matter of law and the trial court erred by denying his motion for summary judgment.

Judgment reversed.

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


author: Benham, Judge.

text:
    74736.
    CRUMPTON v. KELLY et al.
    (363 SE2d 799)
   Benham, Judge.

Appellant’s suit against appellees for medical malpractice resulted in a jury verdict and judgment thereon for appellees. This appeal is from that judgment and from the denial of appellant’s motion to set aside and, in the alternative, for new trial.

1. One of the appellees is the Americus and Sumter County Hospital Authority. Based on the relationship between that party and Sumter County, appellant sought the disqualification of a prospective juror who was attorney for the Board of Commissioners of Sumter County. Appellant contends that the trial court’s refusal to excuse the juror for cause was error. We agree.

This court explained in Daniel v. Bi-Lo, 178 Ga. App. 849 (1) (344 SE2d 707) (1986), the importance of not forcing jurors into the position of choosing between adherence to an oath of impartiality and the pecuniary interests of a party with whom the juror has a business relation. Here, the juror is counsel for the governing body of a governmental entity which created one of the parties for the purpose of meeting that entity’s responsibility to provide health care to its citizens. “Local hospital authorities created under the authority of the Hospital Authorities Law [Cit.] are local, not state, instrumentalities. The State Constitution empowers counties to operate in the sphere of health care and to utilize local hospital authorities as their own county instrumentalities. . . . [Hospital authorities] are public corporations having for their object the administration of a portion of the powers of government delegated to [them] . . .” Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572, 573 (247 SE2d 89) (1978). Given the close relationship between the juror’s client and the party, we find Daniel, supra, compelling authority for the proposition that the trial court should have excused the juror for cause and that appellant is entitled to a new trial.

2. During the trial, counsel for appellant asserted to the trial court that there had been a settlement of the case. Appellees’ counsel denied that there had been a meeting of the minds. The trial court declined to enforce the purported settlement agreement, stating that it appeared to be a question of fact. In appellant’s remaining two enumerations of error, she contends that the trial court erred by not enforcing the settlement agreement.

Citing Sollek v. Laseter, 124 Ga. App. 131 (183 SE2d 86) (1971), appellant contends that she was entitled to a separate hearing on the issue of the settlement before the trial of the underlying case went forward. The record, however, contains no request by appellant for such a hearing. As the case cited by appellant clearly holds, “[t]he granting of a separate trial as to any separate issue is a discretionary matter for the trial judge and there will be no reversal unless there is a clear and manifest abuse of that discretion.” Id. at 132. In the absence of any action by appellant to precipitate such a trial or hearing, we find no abuse of discretion in the trial court’s failure to afford one.

Appellant also contends that the statements of counsel for both parties in the course of a colloquy on the subject required a finding that her attorney had accepted an offer which had never been withdrawn and that, therefore, the purported agreement existed and was enforceable. We disagree. Although the trial judge could have found from their statements that an offer had been extended, or that appellee’s counsel was aware that appellant’s counsel believed an offer remained in effect (see Cox Broadcasting v. Nat. Collegiate &c. Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982)), it could also have found that appellant’s counsel had previously rejected the offer he later attempted to accept. Under those circumstances, we find no error in the trial court’s holding in its order denying appellant’s motion that there had been no meeting of the minds. See Cross v. Cook, 147 Ga. App. 695 (250 SE2d 28) (1978).

Decided November 25, 1987

Rehearing denied December 8, 1987

Charles M. Cork III, for appellant.

William U. Norwood III, Randolph B. Jones, Bobby Jones, for appellees.

Judgment reversed.

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


author: Carley, Judge.

text:
    74342.
    POSS v. CALLAWAY et al.
    (363 SE2d 782)
   Carley, Judge.

Appellees-defendants in this medical malpractice action are Dr. E. Jordan Callaway and his physician’s assistant, Mr. Randy Riner. Appellant-plaintiff’s complaint alleged appellees’ negligence and negligence per se in failing to diagnose and to treat his appendicitis. Appellees answered and subsequently moved for summary judgment, supporting their motion with their own affidavits. As to the negligence claim, the trial court granted appellees’ motion, finding that appellant had failed to introduce expert testimony sufficient to counter appellees’ affidavits. As to the negligence per se claim, the trial court also granted appellees’ motion, finding no evidence that any asserted act of appellees’ negligence per se was the proximate cause of the alleged misdiagnosis and improper treatment and, therefore, of appellant’s injury. Appellant appeals from the order granting summary judgment in favor of appellees.

1. Construing the evidence most strongly for appellant would show the following: Upon discovering that his regular physician was unavailable, appellant went to appellees’ office on a Friday afternoon, expressing complaints of abdominal pain and a belief that he had appendicitis. Appellant, who had never been to appellees’ office before, was seen only by appellee Riner, the physician’s assistant. Appellee Riner examined appellant and diagnosed him as suffering from epididymitis. Appellee Riner then gave appellant a prescription, filling in a blank form which had been pre-signed by appellee Dr. Callaway. At no point did appellee Riner ever inform appellant that he was not a physician and he never left the examining room or consulted with appellee Dr. Callaway about appellant’s case. Appellant believed that appellee Riner was appellee Dr. Callaway. Appellant was told by appellee Riner that he could expect to feel worse before feeling better, but that he would be able to return to work on Monday. Appellant did feel considerably worse during the weekend. When appellant felt no better on Monday, he went to another doctor, who diagnosed appellant as suffering from probable appendicitis, and possibly a ruptured appendix. Appellant was referred to a surgeon. The surgeon operated and found that appellant did have a ruptured appendix and a severe infection.

The initial affidavit that was filed by appellee Dr. Callaway in support of the motion for summary judgment stated that he had, at all times in the treatment of appellant, acted in compliance with the applicable standard of care for physicians. The affidavit that was filed by appellee Riner stated that he had, at all times in the treatment of appellant, acted in compliance with the applicable standard of care for physician’s assistants. However “[n] either affiant limited his . . . averments merely to that conclusory expert opinion. Each affiant also stated the factual basis upon which the opinion of non-negligence was based: Both opinions were premised upon additional factual averments that [appellee Riner had consulted with appellee Dr. Callaway as to the diagnosis of appellant’s condition, that appellee Dr. Callaway had concurred in the diagnosis of epididymitis, and that appellee Dr. Callaway then signed a prescription].” Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 203 (2) (345 SE2d 904) (1986). “Thus, implicit in . . . [appellees’] own [affidavits] is the proposition that the [diagnosis and treatment of a patient by a physician and his assistant] other than in the [manner described] would be a deviation from the applicable standard of care. [Cit.]” (Emphasis in original.) Cherokee County Hosp. Auth. v. Beaver, supra at 203 (2). However, as previously indicated, the factual basis upon which appellees based their opinions differed markedly from the facts as shown in appellant’s evidence. According to appellant’s evidence, there had been no consultation between the appellees as to the diagnosis and the prescription given to him by appellee Riner had been pre-signed by appellee Dr. Callaway. Thus, under appellant’s evidence, appellees had not conformed to the standard that they themselves had, as experts, indicated was applicable under the circumstances. “There is a difference between expert testimony on the one hand and testimony that happens to be given by an expert on the other. [Cit.] The requirement that expert testimony be adduced in a medical malpractice case is premised upon the existence in such a case of ‘medical questions’ which control its resolution. [Cits.] . . . [E] xpert testimony [by appellees] in the instant case having established [what] . . . would be a deviation from that applicable objective standard of care . . . , there is no reason to believe that only experts would be further qualified to [show that appellant had not been afforded that standard of care].” (Emphasis in original.) Cherokee County Hosp. Auth. v. Beaver, supra at 204 (2). “On the record before us, it is for the jury to determine whether more credit is to be given to the [appellees’ evidence] than to [appellant’s]. ‘ “Where a question of credibility arises as to a material issue, summary judgment should not be granted. [Cits.]” [Cit.]’ [Cit.]” Cherokee County Hosp. Auth. v. Beaver, supra at 205 (2).

Were the evidence to be construed most strongly for appellees, then their affidavits would be sufficient to mandate summary judgment in their favor. However, on this motion for summary judgment, the evidence must be construed most strongly in favor of appellant as the non-movant. Construing the evidence most favorably for appellant, appellees’ conduct did not comport with the standard which their own testimony implicitly showed to be applicable. Accordingly, the the trial court erred in granting summary judgment in favor of appellees.

2. With regard to the proximate cause issue, appellee Dr. Callaway did file a subsequent affidavit wherein he opined that “no act or omission on [appellee] Mr. [Riner’s] part caused or contributed in causing any injury or damage allegedly sustained by [appellant].” Appellee Dr. Callaway did not, however, offer an opinion as to what he did consider the proximate cause of appellant’s injuries to be. Compare Stewart v. Palmyra Park Hosp., 171 Ga. App. 477 (320 SE2d 262) (1984); McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 418 (4) (336 SE2d 268) (1985); Kirby v. Spivey, 167 Ga. App. 751, 755 (3) (307 SE2d 538) (1983). A close reading of appellee Dr. Callaway’s subsequent affidavit reveals why he offered only a negative opinion as to the issue of proximate cause. Appellee Dr. Callaway’s subsequent affidavit makes it clear that its intent was only “to supplement” his previous affidavit. As indicated, it was in his previous affidavit that appellee Dr. Callaway had given his version of the factual circumstances surrounding the diagnosis and treatment of appellant and the opinion that those factual circumstances evinced no deviation from the applicable standard of care. It is thus clear that, by his subsequent supplementary affidavit, appellee Dr. Callaway is merely opining that no act or omission on the part of appellee Riner caused appellant’s injury or damage because, in the first instance, appellee Riner’s acts and omissions were not negligent. However, as discussed in Division 1, there still remain genuine issues of material fact as to the circumstances surrounding appellant’s visit to appellees’ office and thus as to whether appellant was subjected to a negligent diagnosis and treatment by appellees. Appellee Dr. Callaway’s subsequent affidavit “did not express an opinion that, even if [the circumstances surrounding appellant’s diagnosis and treatment had been as appellant’s evidence showed, his subsequent suffering of a ruptured appendix and infection] was nonetheless attributable to causal factors other than [his visit to appellees’ office]. [Cits.] Since [appellees’] expert medical evidence was not sufficient to eliminate the [visit to appellees’ office] as a cause of [appellant’s subsequent] physical condition, it was not incumbent upon [him], as the non-moving [party], to produce expert testimony showing ‘ “that the injury complained of proximately resulted from . . . want of care or skill” ’ in the [diagnosis and treatment afforded him]. [Cit.]” Cherokee County Hosp. Auth. v. Beaver, supra at 206 (3). It follows that the trial court erred in granting summary judgment in favor of appellees based upon the proximate cause issue.

Decided November 23, 1987

Rehearing denied December 11, 1987

James Lee Ford, for appellant.

Sidney F. Wheeler, Arnold E. Gardner, Robert D. Roll, for appellees.

Judgments reversed.

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