text:
    A97A1470.
    MANGUM v. THE STATE.
    (492 SE2d 300)
   Judge Harold R. Banke.

Anthony Scott Mangum was convicted of armed robbery, motor vehicle theft, sexual battery, driving without a license, driving under the influence, reckless driving, and obstruction of an officer. He enumerates four errors on appeal.

This case arose after Mangum entered Quilted Hearts, a quilting store. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). When the proprietor inquired whether she could help him, Mangum stated “that this was a robbery and that he had a gun and that he wanted the cash” she had. During this exchange, Mangum kept one hand inside his shirt, which bulged as though he was holding a firearm. The proprietor gave him the contents of her register. Mangum then asked her the make of her car. When she responded, he demanded the keys to her Volvo. Her hesitation angered Mangum, who “told her not to make him get violent, to just give him the keys.” While the proprietor retrieved her keys, Mangum reached over and squeezed the sole customer’s breast. He then jerked the phone from the wall and left.

The proprietor immediately ran to the store next door and called police. Officers responding to that call soon received a report of a single car accident involving a white Volvo. The car had hit a tree and come to rest against a house.

Lieutenant Terry Connor, a plainclothes officer, was driving home from work in his unmarked police cruiser when he heard the call and responded. After learning that the driver fled from the wreck, Connor reasoned that the logical escape route would be toward the interstate. Connor then drove down a nearby shortcut to the interstate and saw Mangum standing beside an abandoned house, wiping blood from his head. Connor called out to Mangum that he was looking for some stolen bicycles. Connor then exited his car and moved closer to Mangum, who turned and ran. Connor chased him, yelling, “Stop, sheriff’s department, you’re under arrest.” Connor aborted his pursuit after stepping on a nail. Other officers apprehended Mangum as he attempted to cross the interstate. Held:

1. We reject Mangum’s contention that the evidence that he was armed was insufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-8-41 (a). Here, both the proprietor and the customer testified that during the commission of the offense Mangum kept his hand concealed in his shirt and the bulge there led them to believe he had a weapon. Both women testified that Mangum warned them not to make him get violent or hurt them. The customer testified that Man-gum announced he was armed on entering the shop. She also stated that Mangum used his unconcealed hand to take the money and keys, pull the phone from the wall, and open the door to leave. The proprietor testified that she thought Mangum was armed. This evidence, viewed in the light most favorable to the verdict, supports the conclusion that the proprietor’s apprehension that Mangum was armed was reasonable. McCluskey v. State, 211 Ga. App. 205, 207-208 (2) (438 SE2d 679) (1993); compare Tate v. State, 191 Ga. App. 727, 728 (2) (382 SE2d 688) (1989). The inference of a weapon’s presence was not error. Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990).

2. We reject Mangum’s contention that theft by taking is a lesser included offense to the armed robbery charge and should have been merged. Although defendants may not be convicted of more than one crime if the charges are the same in law or fact, here both charges were separate as a matter of fact. Compare Williams v. State, 223 Ga. App. 209, 210 (3) (477 SE2d 367) (1996). The armed robbery was complete once Mangum took the money from the cash register. Miller v. State, 174 Ga. App. 42, 45 (5) (329 SE2d 252) (1985). The theft by taking of the motor vehicle occurred when Mangum drove off in the proprietor’s Volvo. Id.; Holt v. State, 239 Ga. 606, 607 (238 SE2d 399) (1977). Accordingly, the evidence establishing armed robbery is not the same as the evidence establishing the commission of the other crime.

3. We reject Mangum’s contention that the evidence that Connor was a law enforcement officer in the lawful discharge of his duties is insufficient to support the obstruction count. OCGA § 16-10-24 (a). Although Connor was not in uniform or driving a marked car, the record shows that he wore his badge on his belt and informed Man-gum that he was conducting an investigation. When Connor was within 30 or 40 feet and Mangum turned to run, Connor yelled out that he worked for the sheriff’s department and for Mangum to stop. This evidence was sufficient to authorize a finding that Mangum knew Connor was a law enforcement officer. See Bailey v. State, 190 Ga. App. 683 (379 SE2d 816) (1989).

4. Mangum maintains his trial counsel was ineffective for erroneously relying on a misdiagnosis by health care providers and failing to arrange a timely, accurate mental health evaluation to buttress the guilty but mentally ill defense. At the time of trial, Mangum was receiving treatment for manic depression. However, he was subsequently diagnosed with hypothyroidism, the purported cause of the behavior underlying the offenses, since alleviated by proper treatment.

Mangum maintains that trial counsel should have required his unwilling expert, Dr. George Johnson, to testify. Rather than forcing Johnson to testify, trial counsel relied on Dr. Robert Storms, who evaluated Mangum during trial at the State’s request. Trial counsel testified that he made this decision after Johnson informed him that Storm would provide essentially the same testimony necessary to establish that Mangum suffered from mental illness. This tactical decision did not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994). Further, even if trial counsel’s delay in obtaining a mental health expert was deficient, we fail to see how this deficiency would have prejudiced the defense to the extent that there was a reasonable probability that the trial’s result would have been different had it not occurred, particularly in light of Mangum’s claim that his problem was purely physical. See Strickland v. Washington, 466 U. S. 668, 692 (104 SC 2052, 80 LE2d 674) (1984).

Decided September 17, 1997

Harold M. Walker, Jr., for appellant.

Lydia J. Sartain, District Attorney, Jessica K. Moss, Assistant District Attorney, for appellee.

Nor has Mangum presented evidence in support of his contention that a more thorough and timely mental health examination would have detected his physical problem, the ostensible reason he committed these offenses. We see nothing in the record which should have alerted trial counsel to the need for a physical examination or to the misdiagnoses of the several mental health care providers who examined Mangum. Mangum’s attempt to hold trial counsel to a higher standard of knowledge than a professional health care provider is unpersuasive. Further, the record refutes his assertion that trial counsel was precluded from mentioning the guilty but mentally ill defense in his opening statement. Mangum failed to establish that trial counsel’s performance, viewed deferentially, was deficient. Strickland, 466 U. S. at 689; Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987).

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

       The record shows the jury received an instruction on the lesser included offense of robbery by intimidation and rejected that alternative. See Sumlin v. State, 207 Ga. App. 408, 409 (2) (427 SE2d 868) (1993).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A1484.
    MARTIN v. THE STATE.
    (492 SE2d 307)
   Beasley, Judge.

Convicted in 1992 of aggravated child molestation (OCGA § 16-6-4 (c)) and of enticing a child for indecent purposes (OCGA § 16-6-5), Ronald Martin appeals the denial of his motion for a second out-of-time appeal.

Martin’s first out-of-time appeal led to affirmance of the conviction because his post-conviction counsel failed to file a motion for new trial raising the claim of ineffective assistance of trial counsel, which claim constituted the only enumeration of error. This procedural deficiency, which prima facie constitutes ineffective assistance of appellate counsel, would normally mean that the trial court should have held a hearing and appointed Martin counsel on his motion for a second out-of-time appeal to determine if appellate counsel was in fact ineffective. If so, further post-conviction relief would be in order. See Rowland v. State, 264 Ga. 872, 874-876 (2) (452 SE2d 756) (1995); Maxwell v. State, 262 Ga. 541, 543-544 (422 SE2d 543) (1992) (Fletcher, J., concurring specially). But this procedure was not required in this instance, for the grounds on which Martin wishes to appeal his original conviction were decided adversely to him in his unappealed habeas corpus proceeding in 1994. Therefore, denial of a second direct appeal was not error.

In November 1992, a jury in Turner Superior Court found Martin guilty, for which he received 30-year and 20-year concurrent sentences. This judgment was not then appealed.

Martin filed a habeas corpus petition in Bibb County, where he was imprisoned, challenging his imprisonment on three grounds: (1) he had instructed counsel to file an appeal, which had not occurred, and he therefore desired an out-of-time appeal; (2) he received ineffective assistance at trial; and (3) he was incompetent and had a speech impediment, which deprived him of the right to a fair trial. After an evidentiary hearing on June 30, 1993, the habeas court found no ineffective assistance of counsel or incompetency of Martin, but “remanded” the matter to Turner Superior Court for a hearing on whether he should be allowed an out-of-time appeal. The habeas court order was not appealed.

Apparently without holding a hearing, the Turner Superior Court granted Martin permission to pursue an out-of-time appeal. Martin retained appellate counsel, who did not move for a new trial but simply appealed to this Court and enumerated as the sole ground for appeal ineffective assistance of trial counsel. Citing Peavy v. State, 213 Ga. App. 79 (443 SE2d 705) (1994), our unpublished opinion in May 1995 held that the failure of Martin’s post-conviction counsel to pursue the issue of ineffective assistance by a motion for new trial waived the issue, and the convictions were affirmed. See Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Chatman v. State, 265 Ga. 177, 178 (2) (453 SE2d 694) (1995); Jackson v. State, 223 Ga. App. 207, 208 (2) (477 SE2d 347) (1996).

The following February, Martin pro se filed the motion for a second out-of-time appeal. He argued that his appellate counsel had rendered ineffective assistance on the first out-of-time appeal, and he asked that the court appoint new counsel and hear his motion. Without a hearing, the court in September 1996 denied new counsel and a second out-of-time appeal. This order gave rise to the appeal now before us.

Martin argues the trial court erred in four respects: (1) it failed to hold a hearing on his motion for a second out-of-time appeal; (2) it failed to appoint him counsel to represent him at this hearing; (3) it failed to grant his motion; and (4) it based its decision denying the motion on an earlier finding by the habeas court that Martin’s trial counsel had rendered effective assistance.

Martin essentially claims that his appellate counsel rendered ineffective assistance, which precluded him on procedural grounds from pursuing an appeal to raise trial counsel’s ineffective assistance. In such circumstances, Martin is entitled to a second out-of-time appeal if he can demonstrate (1) ineffective appellate assistance caused the failure to pursue the ineffective trial assistance claim and (2) he was prejudiced as a result. White v. Kelso, 261 Ga. 32, 33 (401 SE2d 733) (1991). Appellate counsel’s error in failing to move for a new trial meets the “cause” requirement. See Rowland, supra, 264 Ga. at 876 (2) (appellate counsel’s failure to perform routine duties constitutes cause); McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 SE2d 141) (1974) (dismissal of appeal due to counsel’s ignorance, negligence, or misinterpretation of the law constitutes cause).

But Martin cannot show he was prejudiced as a result of the error. Bibb Superior Court, which conducted an evidentiary hearing on the three grounds of his habeas corpus petition, held that the claim of ineffective assistance of trial counsel was “without merit.” The principle of res judicata in OCGA § 9-12-40 applies to the rulings and findings of habeas courts. Wells v. Keith, 213 Ga. 858 (102 SE2d 533) (1958). The Bibb court’s unappealed rejection of Martin’s evidence and arguments is conclusive and binding on him.

Accordingly, appellate counsel’s error in waiving this issue was harmless and did not prejudice Martin. Had appellate counsel proceeded properly, he would have filed a motion for new trial on the ineffective assistance issue in Turner Superior Court rather than filing a notice of appeal. In turn, Turner Superior Court necessarily would have rejected this claim, for the unappealed habeas decision had already ruled on the merits, adversely to Martin. Res judicata prevents reconsideration.

This brings us to Martin’s motion for the second out-of-time appeal. Whether a hearing should have been held or counsel appointed is irrelevant because the court was required to rule against Martin on his motion as a matter of law. Martin cannot show any prejudice caused by appellate counsel’s error, for his ineffective assistance claim would have failed even if his appellate counsel had followed the correct procedure. Grounds for granting a second out-of-time appeal are lacking. See White, supra.

The facts of Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991), approximate the facts of this case. Having failed to appeal his conviction in Schley County, Hunter filed a habeas petition in Tattnall County where he was incarcerated, claiming as one ground ineffective assistance of counsel. The petition was denied, and no appeal was filed. He later moved for an out-of-time appeal in Schley County to allow him to appeal his original conviction, arguing that trial counsel had failed to file an appeal even though asked to do so. The trial court denied the motion as barred by the adverse ruling on the same issue in the habeas action. The Supreme Court of Georgia affirmed “because the issue of ineffective assistance of counsel was decided adversely to appellant in the . . . habeas action and that judgment is conclusive on the issue. [Cit.]” Id. at 762. See Whatley v. State, supra at 612 (3) (“The issue of ineffective assistance of trial counsel was decided adversely to Whatley in the habeas court’s order [which] is conclusive on this issue”); Judkins v. State, 218 Ga. App. 767, 769 (3) (463 SE2d 362) (1995) (habeas finding on ineffective assistance of counsel conclusive).

Similarly, in Crowder v. State, 265 Ga. 719 (461 SE2d 865) (1995), the defendant alleged ineffective assistance of counsel in his first motion for an out-of-time appeal, which was denied and not appealed. In his subsequent repetitive motion, the court held that the ruling on his first motion was conclusive and barred the assertion of the ground; the Supreme Court affirmed. Cf. Randolph v. State, 220 Ga. App. 769, 770-771 (1) (470 SE2d 300) (1996), in which we reversed a judgment denying a motion for out-of-time appeal despite the existence of a habeas finding of effective assistance. The motion was denied the same day it was filed. It was error to do so without further inquiry, “[considering the magnitude of this event and the allegations contained in [the] motion.” Id. at 771 (1). In Martin’s case, the court considered the motion for seven months and considered the circumstances.

Citing Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991), Martin argues that the habeas court should have addressed only the first of the three grounds asserted in his petition (the request for an out-of-time appeal because his trial counsel failed to appeal as instructed) and should not have reached the issue of general ineffective assistance at trial. Ponder does state in dicta that “a habeas court, when confronted with a claim of ineffective assistance of counsel which includes a claim of denial of the right to a direct appeal, should first address the denial of the right to an appeal. Upon a finding of such a denial, the habeas court should decline to rule on the remaining issues” and grant the out-of-time appeal. Id. at 842 (1); see Wordu v. State, 216 Ga. App. 552, 554 (2) (455 SE2d 101) (1995). In keeping with this holding, Bibb Superior Court should have ruled in Martin’s favor on the out-of-time appeal issue and not addressed the ineffective assistance or other issue.

Decided September 17, 1997.

Ronald R. Martin, pro se.

C. Paul Bowden, District Attorney, for appellee.

But Martin did not appeal the habeas court’s order. Regardless of whether the habeas court should have declined to rule on the ineffective assistance claim as a matter of policy or lack of necessity, it did do so, and Martin did not appeal this ruling. So long as a habeas court has competent jurisdiction, res judicata bars the relitigation of “all matters put in issue or which under the rules of law might have been put in issue.” OCGA § 9-12-40. The habeas court did have jurisdiction, just as the habeas courts did in Hunter, supra, Whatley, supra, and Judkins, supra. “Regardless of the correctness of that decision, it cannot be relitigated. [Cit.]” Johnston v. Duncan, 227 Ga. 298 (1) (180 SE2d 348) (1971).

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

       Whether a habeas court has authority to remand to another superior court is questionable. See Whatley v. State, 218 Ga. App. 608, 609 (462 SE2d 779) (1995) (citing Jones v. Whatley, Case No. S92A1499 (Ga. December 2, 1992)).


author: Judge Harold R. Banke.

text:
    A97A1530.
    LITTRELL et al. v. COLONY INSURANCE COMPANY.
    (492 SE2d 299)
   Judge Harold R. Banke.

The trial court granted Colony Insurance Company (“Colony”) summary judgment after Colony sought declaratory relief against Bobby Littrell, Robin Littrell, Lloyd Dixon, C. Alton Bell and Lake Burton Grill f/k/a Bill’s Place. Enumerating one error, only Bobby Littrell, Robin Littrell, and Lloyd Dixon appeal.

Bobby Littrell, Robin Littrell, and Lloyd Dixon sued C. Alton Bell and Lake Burton Grill fXk/a Bill’s Place, Colony’s insured, for purported liability arising out of an incident in which Bobby Littrell and Lloyd Dixon were injured by a bullet fired by Willard Lee Brewer. It is undisputed that during an altercation, Brewer shot Littrell in the back and that bullet then entered Dixon. Robin Littrell then shot and killed Brewer.

Littrell and Dixon asserted that C. Alton Bell and Lake Burton Grill were negligent in permitting Brewer to continue to consume alcohol when he was visibly intoxicated, hostile, and known to be in possession of a knife. They contended that neither Bell nor his employees prevented Brewer from obtaining the “bar gun,” a loaded firearm on the premises. They claimed Bell’s negligence gave rise to the civil assault and battery Brewer committed upon them. Robin Littrell brought a loss of consortium claim. The trial court determined that none of the claims asserted against Bell or his business fell within the parameters of the commercial general liability policy issued by Colony. Held:

The appellants contend that the trial court erred in determining that the acts of Brewer constituted an assault and battery so as to come within the assault and battery exclusion of the insurance policy at issue. Relying on the fact that they alleged that Brewer’s actions were grossly negligent as well as intentional, they claim that a jury must resolve whether Brewer intentionally shot them. Compare State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988).

Provided no law or public policy is contravened, an insurance company may fix the terms of its policy to insure against certain risks and to exclude others. Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37, 38 (430 SE2d 33) (1993). An insurer’s duty to defend is determined by comparing the nature of the allegations in the complaint with the policy provisions. Id.

Here, the complaint asserted claims of negligence, premises liability, and respondeat superior against Bell and Lake Burton Grill. Although the complaint alleged that Bell and his employees were negligent in failing to take certain preventative measures which culminated in the shooting, the injuries which gave rise to the cause of action were plainly premised on the underlying assault and battery, Brewer’s shooting of the two men. The complaint specifically claimed that “the unjustified and unprovoked actions of Brewer did amount to a civil assault and battery [upon Bobby Littrell and Lloyd Dixon].” Assault and battery are by their nature intentional acts, not accidental in nature. Hain v. Allstate Ins. Co., 221 Ga. App. 486 (471 SE2d 521) (1996).

By its terms, the policy excluded claims for bodily injury arising from: “A) Assault and Battery committed by any insured, any employee of any insured, or any other person, whether committed by or at the direction of any insured. B) The failure to suppress or prevent assault and battery by any person in (A) above.”

An unambiguous policy, as here, requires no construction, and its plain terms must be given full effect even though they are beneficial to an insurer and detrimental to the insured. Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343, 344 (401 SE2d 555) (1991). Under the express terms of the assault and battery exclusion, there was no applicable coverage. See, e.g., Southern v. Sphere-Drake Ins. Co., 226 Ga. App. 450, 451 (486 SE2d 674) (1997); Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995). After Colony met its burden of showing the exclusion, the burden shifted to the appellants to set forth admissible evidence that Brewer’s actions were not intentional. Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 14 (2) (476 SE2d 797) (1996). This they failed to do. Accordingly, the trial court properly granted summary judgment to Colony.

Decided September 17, 1997.

John A. Roberts, for appellants.

Long, Weinberg, Ansley & Wheeler, James H. Fisher II, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Eldridge, Judge. Birdsong, Presiding Judge,

text:
    A97A1743.
    LANE v. TIFT COUNTY HOSPITAL AUTHORITY.
    (492 SE2d 317)
   Eldridge, Judge.

On July 22, 1992, William Frank Lane, now deceased, told his wife that he had fallen at home and showed confusion. Late that evening Lane was admitted to Tift General Hospital for diagnostic purposes. Upon admission, Lane had mild pain and was x-rayed in the early morning of July 23, 1992; such initial x-rays showed no fracture. Prior to the x-ray examination, Lane had movement in his extremities without limitation, could speak with a normal voice, could sit up in bed, and appeared neurologically intact. After the return from the second x-ray session in the afternoon of July 23, 1992, Lane spoke only in a whisper, had no control over his extremities, and showed observable indications of pain. When his wife, appellant Mary Sumner Lane, asked him what was wrong with him, Lane stated that he had been dropped by two black men. After it was reported that Lane had been dropped, a CT scan of the cervical spine was ordered by Dr. Gerald L. Sapp, and it revealed that Lane had sustained a broken neck. Dr. Sapp and appellant had Lane transferred to Palmyra Medical Center in Albany as a result of the injuries revealed by the CT scan.

Appellee’s employee, radiology technologist Robert Price, testified that at 12:17 a.m., he attempted to take x-rays of Lane, who seemed confused; muscle spasms caused suboptimal x-ray results. Price did not state who brought Lane to x-ray from the emergency room; all he could testify to was that he did not drop Lane or see Lane dropped. Radiology technologists Brenda Brett, Sharon Connell, and Eloise Nipper all testified by affidavit that, at 2:35 p.m. on July 23, 1992, Lane was brought to x-ray again by undisclosed hospital personnel in an undisclosed manner, where he was x-rayed without being dropped; that he was confused and suffered muscle spasms; and that they did not see Lane dropped or drop him. They did not disclose how he was transported to his room or what, if anything, the x-rays showed.

Lane’s discharge summary was read into the depositions of his son, Ronnie Lane, and appellant by appellee’s counsel as part of a question to them; the report indicated that neither Dr. Sapp nor Dr. Shah found any fracture on the x-rays taken of Lane while he was in appellee’s custody. Appellee tendered the depositions of both appellant and Ronnie Lane into evidence in support of the motion for summary judgment.

Lane appeared lucid, oriented, and coherent prior to his admission to Palmyra Medical Center from Tift General Hospital. Dr. Sapp and Lane’s daughter, who is Dr. Sapp’s wife, both testified that Lane exhibited mental confusion and that at the time of the x-rays on July 22, 1992, Lane had received demerol which “in all likelihood would alter the patient’s mental abilities.”

On July 22,1994, after the death of Lane, appellant brought suit for personal injuries and wrongful death against Tift General Hospital as widow and executrix of Lane’s estate. This suit alleged that Lane died on November 30, 1992, as a proximate cause of injuries incurred while he was a patient of appellee.

On August 9, 1996, appellee Tift County Hospital Authority filed a motion for summary judgment and filed the affidavits of several employees of the x-ray department who denied having dropped Lane during their shifts. On February 21, 1997, the trial court granted summary judgment. On March 7, 1997, appellant filed her notice of appeal.

1. Appellant’s enumeration of error is that the trial court erred in granting the summary judgment. We agree and reverse.

(a) In the case sub judice, appellee failed to pierce the appellant’s pleadings that x-rays taken of Lane July 22, 1992, showed no fracture. Although appellee in its answer admits that the x-rays were inconclusive, revealing no fracture, the complaint alleged that a CT scan made subsequent to July 23, 1992, showed a fracture of Lane’s neck. None of the affidavits of the radiology technologists stated what was shown on the July 23, 1992 x-rays. While appellee offers the affidavit of Dr. Sapp, Lane’s treating physician, his affidavit did not state that, in his opinion, the sole proximate cause of Lane’s fractured neck was a fall at home, nor did it state that the x-rays taken on July 22, 1992, or on July 23, 1992, were inconclusive. As pled, the x-rays of July 22, 1992, negate any reasonable inference that the fractured neck was a prior existing injury, which leaves a reasonable, favorable inference to be drawn from the existence of the fractured neck: that such fracture occurred while Lane was under the care and control of the appellee. Appellee’s evidence does not address the issue of when, where, how, or who caused such fracture, which appellee had not found on July 22, 1992. Such evidence merely shows that, if any injury occurred to Lane, then it did not occur in the x-ray department on their watch. However, such evidence fails to negate the favorable inference that must be drawn that the fracture occurred sometime while Lane was under appellee’s care and control after the x-rays were taken on July 22, 1992.

Further, Dr. Sapp admitted Lane to appellee’s care while Lane was in a confused mental state, and the doctor administered demerol to Lane, which would “alter the patient’s mental abilities”; such known condition of Lane created a duty that the appellee exercise reasonable care to watch Lane in order to ensure that he did not fall or hurt himself in such confused state. Thus, the favorable inferences that must be made in favor of appellant by the trial court on summary judgment are that, while under the exclusive control of appellee, the deceased broke his neck either by being dropped by appellee’s employees other than the radiology technologists, as alleged, or by falling in the hospital while appellee’s employees were not watching this mentally confused patient. Under either favorable inference, there exists a factual question for jury determination, and summary judgment should have been denied.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Appellee, the moving party, failed to meet its burden. “On a motion for summary judgment the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden.” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973); see also Sawgrass Builders v. Key, 212 Ga. App. 138 (441 SE2d 99) (1994); Huntington v. Fishman, 212 Ga. App. 27, 29-31 (441 SE2d 444) (1994). Appellant pled that the x-rays showed no fracture, and appellee admitted that the x-rays were inconclusive. Appellee could neither admit nor deny that Lane had a fracture of the neck at either time he was x-rayed.

“Nothing in Lau’s Corp. [v. Haskins, supra at 491], however, places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint — even on issues not raised in the defendants] motion. Indeed, until appellees pierced the allegations of [appellant’s] complaint on a particular issue, [she] was neither réquired to respond to the motion on that issue ([cits.]), nor required to produce evidence in support of [her] complaint on that issue. [Cits.] The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, [appellant] was not required to present proof on all matters raised in [her] (complaint until appellees pierced [her] complaint on those issues.” Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995). Allegations of a complaint must be taken as true on motion for summary judgment unless the movant successfully pierces the allegations so as to show that no material issue of fact remains as to an essential element of the cause of action. Sapp v. ABC Credit &c. Co., 243 Ga. 151 (253 SE2d 82) (1979); Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1 (186 SE2d 307) (1971), aff’d, 229 Ga. 140 (189 SE2d 412) (1972); Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783 (195 SE2d 277) (1972). The respondent is to be given the benefit of all reasonable doubts in determining whether a genuine issue of fact exists, and the trial court must give the respondent the benefit of all favorable inferences that may be drawn from the evidence. Smith v. Sandersville Production Credit Assn., 229 Ga. 65 (189 SE2d 432) (1972); Barber v. Perdue, 194 Ga. App. 287 (390 SE2d 234) (1989); Holland v Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962).

(b) Under OCGA § 24-3-14, medical records made in the ordinary course of treatment come within the business record exception to the hearsay rule, which exception makes the portion of the appellant’s and her son’s depositions containing the report of Dr. Shah and the discharge summary of Lane admissible in evidence. Generally, even under this exception, medical opinions are not admissible; normally those portions of medical or hospital records containing opinions must be redacted. However, under OCGA § 24-3-4, statements made incident to medical diagnosis or treatment constitute exceptions to the hearsay rule as to the content of Lane’s medical records, as well as to evidence of his broken neck. Likewise, appellee’s introduction of such depositions without objection or limited admission waives any objection to the opinion evidence or lack of foundation for expert opinion. See generally Central Ga. R. Co. v. Carter, 212 Ga. App. 528 (442 SE2d 269) (1994); Stoneridge Properties v. Kuper, 178 Ga. App. 409 (343 SE2d 424) (1986). Further, appellee introduced the depositions containing such matter without objection or limitation as to the purpose, so that objections as to the lack of foundation or the opinion nature of the evidence are waived. See generally Meeks v. Lunsford, 106 Ga. App. 154 (126 SE2d 531) (1962); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (99 SE2d 370) (1957). Since appellee placed the evidence before the trial court without objection, then any issue as to admissibility is waived. Williams v. Mem. Med. Center, 218 Ga. App. 107, 108 (2) (460 SE2d 558) (1995); see also David Shapiro & Co. v. Timber Specialties, 141 Ga. App. 354 (1) (233 SE2d 439) (1977).

Under OCGA § 24-3-33, tender into evidence by appellee’s counsel of the discharge summary of Lane and of the depositions constitutes an admission of the probativeness, accuracy, and authenticity of such discharge summary as evidence. See generally W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co., 104 Ga. App. 498 (122 SE2d 143) (1961); NAACP v. Pye, 96 Ga. App. 685 (101 SE2d 609) (1957); Everitt v. Harris, 67 Ga. App. 64 (19 SE2d 545) (1942). Thus, there is evidence in the record from which favorable inferences may be drawn regarding the absence of evidence of a broken neck on the x-ray and examination at the time of admission and a broken neck found subsequent to the discharge after July 23, 1992.

(c) “[I]t is well established that a hospital owes a duty to a pay patient to exercise such reasonable care in looking after and protecting the patient as his condition, known to the hospital through its agents and servants charged with the duty of looking after and supervising him, may require, but the hospital is not an insurer of the patient’s safety. [Cits.]” Hosp. Auth. of St. Marys v. Eason, 222 Ga. 536, 539 (150 SE2d 812) (1966); Macon-Bibb County Hosp. Auth. v. Appleton, 123 Ga. App. 445, 450 (2) (181 SE2d 522) (1971). “A [hospital receiving payment for a private patient] in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under a duty to exercise such reasonable care in looking after and protecting the patient as the patient’s condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require. This duty extends to safeguarding and protecting the patient from any known or reasonably apprehended danger from himself which may be due to his mental incapacity, and to use ordinary and reasonable care to prevent it. [Cits.]” Emory Univ. v. Shadburn, 47 Ga. App. 643 (1) (171 SE 192) (1933), aff’d, 180 Ga. 595 (180 SE 137) (1935); see also Deese v. Carroll City County Hosp., 203 Ga. App. 148, 149 (1) (416 SE2d 127) (1992); Doctors Hosp. of Augusta v. Poole, 144 Ga. App. 184 (1) (241 SE2d 2) (1977); Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 246 (1) (183 SE2d 586) (1971), overruled on other grounds, Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974). For purposes of the requirement of medical expert testimony and not in determining the duty of care, “[t]he protection of patients is not a medical function of a hospital; rather, it is a service provided by a hospital to its patients.” Johnson v. Wills Mem. Hosp. &c., 178 Ga. App. 459, 461 (2) (343 SE2d 700) (1986); see also Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (2) (354 SE2d 872) (1987); see generally Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992); Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299 (454 SE2d 190) (1995); Smith v. North Fulton Med. Center, 200 Ga. App. 464, 465-466 (1) (408 SE2d 468) (1991); Flowers v. Mem. Med. Center, 198 Ga. App. 651, 652 (402 SE2d 541) (1991). Therefore, a jury issue exists as to whether appellee used ordinary and reasonable care in serving Lane as a patient.

The trial judge erroneously granted summary judgment when there existed material issues of fact as to appellee’s liability.

2. Appellant’s other enumeration of error is that the trial court erred in granting appellee’s motion for summary judgment, as the decedent’s decláration that he had been dropped while in the appellee’s hospital is admissible under the two-prong test for the necessity exception to the hearsay rule. We agree. Since the case is reversed, we decide this issue as guidance in subsequent proceedings.

OCGA § 24-3-4 provides that statements made for purposes of medical diagnosis and treatment are admissible as an exception to the hearsay exclusion. Clearly, Lane’s statement that “two black men dropped [him]” when he was sent for x-rays caused him to subsequently undergo a CT scan, which revealed a broken neck, and resulted in his transfer to Palmyra Medical Center in Albany for treatment. See Southern R. Co. v. Lawson, 256 Ga. 798 (353 SE2d 491) (1987); Central of Ga. R. Co. v. Carter, supra; Allen v. State, 174 Ga. App. 206 (329 SE2d 586) (1985); Sparks v. State, 172 Ga. App. 891 (324 SE2d 824) (1984); Davis v. State, 168 Ga. App. 272 (308 SE2d 602) (1983).

The trial court used hearsay statements made by the decedent, which indicated his mental state by the content of the statements, to determine the reliability of Lane’s claim; the trial judge made a determination as to the weight and credibility of Lane’s statements, instead of leaving such determination to the jury to decide weight and credibility. See Griffin v. Bremen Steel Co., 161 Ga. App. 768, 772 (2) (288 SE2d 874) (1982); Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 421 (3) (160 SE2d 633) (1968); Marietta Intl. Sales v. Federated Mut. &c. Ins. Co., 122 Ga. App. 133, 134 (176 SE2d 460) (1970).

In Swain v. C & S Bank of Albany, 258 Ga. 547, 549-550 (372 SE2d 423) (1988), the Supreme Court held regarding the necessity exception to the hearsay exclusion “The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered. . . . However, the mere fact that a witness is dead does not render his declarations admissible, although, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration. It is a general rule that self-serving declarations — that is, statements favorable to the interest of the declarant — are not admissible in evidence as proof of the facts asserted, regardless of whether they were implied by acts or conduct, were made orally, or were reduced to writing. The rule which renders self-serving statements inadmissible is the same in criminal prosecutions as in civil actions. The vital objection to the admission of this kind of evidence is its hearsay character; the phrase ‘self-serving’ does not describe an independent ground of objection. Such declarations are untrustworthy; their introduction in evidence would open the door to frauds and perjuries, and the manufacturing of evidence. The fact that the declarant has since died does not alter the general exclusionary rule. Chrysler Motors Corp. v. Davis, [226 Ga. 221, 224-225 (173 SE2d 691) (1970)]. As can be seen from the preceding passage, in Chrysler Motors this court focused on whether the declaration was self-serving when the deceased made it, holding that it must be excluded if it was self-serving. . . . [However,] circumstances indicating that a witness has an interest in the case, as do [appellant] and her son, should merely go to the credibility of the witness, not to the admissibility of the declarant’s statement. As with all questions of witness credibility, opposing counsel has the right to draw the jury’s attention to these circumstances through cross-examination of the witness and argument to the jury. . . . Having determined that the self-interest of the . . . witness is not relevant to the admissibility of the declaration in question, there remains to be considered the factor of trustworthiness, under the rule enunciated in Chrysler Motors, supra, 226 Ga. See Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987). In her dissent Judge Beasley listed several elements of the record that she felt were circumstantial guarantees of the truthfulness of the declaration when the deceased made it. After examining the elements we find that taken as a whole they were sufficient to support the trial court’s decision to deny the motion to exclude the declaration of the deceased.” (Citations and punctuation omitted; emphasis in original.)

The first prong of the necessity exception to the hearsay rule under OCGA § 24-3-1 (b) is necessity itself. One way to satisfy the first prong is by showing that the declarant is dead, and there is no live witness at all or that the only available witness is the opposite party, who denies hearing the statement. See Swain v. C & S Bank of Albany, supra at 548-549; Chrysler Motors Corp. v. Davis, supra at 224-225; Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993); McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993); Jackson v. State, 202 Ga. App. 582, 586 (2) (414 SE2d 905) (1992). Necessity is also satisfied where there is a live witness that cannot be compelled to testify because of an evidentiary privilege. Higgs v. State, supra at 607; Patterson v. State, 202 Ga. App. 440, 443-444 (4) (414 SE2d 895) (1992); Glisson v. State, 188 Ga. App. 152, 154 (2) (372 SE2d 462) (1988). When a witness cannot be found after diligent search because they are hiding to avoid testifying, necessity has been shown. Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69) (1989). “That exception applies only when the witness is unavailable, usually because of death or in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband.” (Emphasis omitted.) Glisson v. State, supra at 154 (3). Refusal to testify.where no privilege applies does not satisfy the necessity prong where the court has the power to force testimony. Walker v. State, 220 Ga. App. 80, 81 (1) (467 SE2d 388) (1996); Glisson v. State, supra at 154. The necessity rule does not turn on the existence of other witnesses who can testify to the substance of the out-of-court statement but to the availability of the declarant; thus, the rule of necessity applies when there is another eyewitness available to testify. See Wallace v. State, 216 Ga. App. 718, 719-720 (2) (455 SE2d 615) (1995). Appellant has fully satisfied the requirement of necessity.

The second prong of the rule of necessity is the particularized guarantees of trustworthiness as indicia of reliability drawn from the surrounding circumstances in place of the oath. See Roper v. State, supra at 202; McKissick v. State, supra at 189. In the case sub judice, there exist a number of indicia of reliability, which provide trustworthiness to the deceased’s declaration as a substitute for the oath and which arise from the surrounding circumstances: (a) the declarant did not spontaneously make the statement but was specifically asked by his wife, who he trusted, what had happened to him to cause his apparent physical distress; (b) the statement was made close to or during the res gestae so as to avoid the risk of long deliberation for fabrication of a claim; (c) the declarant made the statement with visible physical difficulty in speaking and while in obvious physical pain, making concentration for purposes of fabrication more difficult; (d) the statement was factually short, responsive, rational, oriented to time and place, and simple in relationship to where he had just been; (e) the statement indicated the immediate urgency for medical assistance, which had not previously existed with such degree; (f) the statement when subsequently made to others on inquiry was consistent each time and never retracted or qualified; (g) subsequent statements were not spontaneously uttered to everyone who would listen, as if fabricating a claim, but were made in response to a specific inquiry as to what happened; (h) Lane did not seek to identify specifically the perpetrators except by general description of race and gender and to claim that they were appellee’s employees; (i) the subsequent CT scan corroborated that the declarant was suffering from a crippling injury that had not been detected prior to the statement; (j) the x-rays taken prior to the statement did not indicate a prior existing injury and circumstantially corroborated the statement; (k) at the time when the statement was made, the declarant gave no verbal indication of self-interest, i.e., “I’ll sue,” “they will pay for this,” “they will have to pay my medical bills,” or “y’all can sue”; (1) the manner of questioning was not leading or suggestive of a desired answer; and (m) the deceased’s mental confusion both prior to and subsequent to his statement makes less likely his ability to contrive a scheme to fabricate a tort action and to maintain such claim without contradictions over the period from July 23 until November 20, 1992. See Higgs v. State, supra at 607-608. Such indicia of reliability from the surrounding circumstances of the case sub judice were similar in kind and nature but far more numerous than the indicia of reliability found by Judge Beasley in her dissent in C & S Bank of Albany v. Swain, 185 Ga. App. 881, 885 (366 SE2d 191) (1988), rev'd, Swain v. C & S Bank of Albany, supra. See also Roper v. State, supra at 203; Mallory v. State, 261 Ga. 625, 627-628 (2) (409 SE2d 839) (1991); Adams v. State, supra at 17. Had Lane lived to testify, cross-examination of him “would be of marginal utility.” See Fenimore v. State, 218 Ga. App. 735, 737-738 (463 SE2d 55) (1995). The statement fully satisfies the requirement of trustworthiness as a matter of law, and it is for a jury to decide what weight and credibility to ascribe to such statement.

The trial court erred in excluding the deceased’s out-of-court statement as not meeting the rule of necessity.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur specially.

Birdsong, Presiding Judge,

concurring specially.

Although concurring in the result obtained in the disposition of this appeal, I cannot join in the legal analysis contained in Division 1 of the majority opinion, including the theory of admissibility of entries in medical records asserted therein. Moreover, I reject any legal analysis in the majority opinion which might be construed as implying that genuine issues of material fact could exist solely based on inferences to be drawn from the deteriorated physical and mental condition of Lane as observed upon his return from x-ray. Proof of nothing more than an unexplained physical and mental deterioration, standing alone, will not establish liability on the part of the hospital. See Innes v. Dixie Svc. Center, 224 Ga. App. 584, 585 (481 SE2d 572) (mere fact of injury or damage does not give rise to a presumption or inference of negligence).

The trial court held that the hearsay declaration made by Lane to his wife immediately upon his return from additional x-rays met the threshold requirement for trustworthiness and were sufficiently reliable to be presented to the jury. Although I cannot join in either the majority’s or the trial court’s independent analysis regarding these statements, I do find that the record provides adequate support for the trial court’s ultimate ruling as to declaration reliability and, therefore, the trial court did not abuse its discretion (see Taylor v. State, 226 Ga. App. 339 (1) (486 SE2d 601); compare Star Gas of Hawkinsville v. Robinson, 225 Ga. App. 594, 597 (4) (484 SE2d 266); Gilbert Corp. &c. v. Yetman, 219 Ga. App. 320, 322 (2) (464 SE2d 822); Brown v. City of Fitzgerald, 177 Ga. App. 859, 861 (3) (341 SE2d 476)) when it in essence admitted this declaration by holding it was sufficiently reliable to be presented to the jury. Lee v. Peacock, 199 Ga. App. 192 (404 SE2d 473) is distinguishable. In Lee, supra, we were testing for an abuse of the trial court’s discretion in ruling the declarations inadmissible, while in this case we are testing for an abuse of discretion as to a ruling which finds the declaration sufficiently reliable to be presented to the jury. After the trial court found the declaration to be reliable, it proceeded erroneously to shift the burden of going forward to nonmovant appellant; in doing so the trial court committed reversible error.

For the above reasons, I am compelled to join in the reversal of the judgment granting summary judgment to appellee Tift County Hospital Authority.

I am authorized to state that Judge Ruffin joins in this special concurrence.

Decided September 17, 1997.

O. Wayne Ellerbee, Laurie L. Paterson, Howard E. McClain, for appellant.

Reinhardt, Whitley & Wilmot, Robert C. Wilmot, for appellee.


author: Eldridge, Judge.

text:
    A97A1933.
    ARKIN v. FIREMAN’S FUND INSURANCE COMPANY.
    (492 SE2d 314)
   Eldridge, Judge.

This is an appeal from the trial court’s granting of appellee Fireman’s Fund Insurance Company’s motion for summary judgment and the denial of appellant Dr. David B. Arkin’s cross-motion for summary judgment. Dr. Arkin seeks recovery from appellee under his homeowner’s insurance policy for loss occasioned by the sinking and settling of a culvert which was part of the driveway serving his residence.

The driveway which leads to appellant’s residence crosses a ravine with a creek running though it. A culvert was installed in order to allow the driveway to cross over the ravine and to accommodate the flow of the creek beneath it. The culvert consisted of three large corrugated steel pipes, approximately 60 inches in diameter, laid side by side in the creek bed parallel to the flow of the creek. Stone headwalls, approximately 12 feet tall, were constructed on either end of the pipes in order to secure the pipes and to serve as a bridge support for the driveway. To this end, the space between the headwalls was filled in with dirt, covering the pipes below and forming a bed for the driveway as it crossed the ravine. The concrete driveway was then laid on top of the fill dirt.

During construction, the headwalls were built using the creek bed as their foundation, as opposed to the standard industry practice of sinking footers approximately two to three feet into the creek bed as a foundation for the headwalls. The corrugated steel pipes were laid on the ground of the creek bed. No footing or other support had ever been constructed underneath the headwalls or the pipes. As a result of this construction, water scouring and erosion occurred over time, which scouring, along with the weight and pressure from the automobiles crossing the structure, caused the soil around the head-walls and between the pipes to wash away; the headwalls to crack and crumble, as well as to shift and sink into the creek bed; the concrete driveway to crack and settle onto the culvert pipes; and the corrugated steel pipes to begin to flatten from the ensuing weight. Appellant first noticed the problem when a rather large sinkhole appeared beside that portion of the driveway that crossed the culvert.

The entire structure was severely distressed and was in danger of imminent collapse. The appellant had it repaired for approximately $45,000 and filed a claim with appellee. Appellee determined that such damage was not covered under the terms of its policy and denied appellant’s claim. Appellant filed suit. Cross-motions for summary judgment were filed, and the trial court granted summary judgment to appellee Fireman’s Fund Insurance Company, finding that the terms of the policy precluded appellant’s recovery. For the same reasons, the trial court denied appellant’s cross-motion for summary judgment.

Dr. Arkin appeals and raises five enumerations of error which each address'the same factual question, i.e., what is the nature of the structure and what is the type of damage it sustained. Appellant acknowledges that his right to recover for the loss of the culvert under the terms of the insurance policy turns solely upon whether or not the definition of “building” would include the culvert. This is so because, under the terms of the policy, recovery for damage due to imminent collapse is specifically limited to buildings only: “We insure for direct physical loss to covered property involving collapse of a building or any part of a building.” Thus, appellant concedes that his right to recovery for the imminent collapse of the culvert requires a determination by this Court that the culvert is a “building,” as opposed to another type of structure which is excluded under the policy, such as “pavement, underground pipe, drain, foundation, or retaining wall.”

In addition, the terms of the insurance policy limit recovery for the collapse of a building to only six possible causes, just one of which, appellant acknowledges, would be even arguably applicable in the instant case, i.e., “hidden decay.” Thus, appellant concedes that to recover under the terms of the policy, this Court must determine, not only that appellant’s culvert is a “building,” but also that the imminent collapse of the culvert was caused by “hidden decay,” as opposed to other precluded causes of collapse, such as “settling, shrinking . . . (including the cracking which results).”

Finally, in order for appellant to recover, this Court must also determine that the type of damage sustained by the culvert is not specifically excluded under the terms of the policy, which lists the following “Exclusions”: (1) “Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs, or ceilings”; (2) “Water Damage, meaning: . . . [wjater below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure”; (3) “Earth movement, meaning: . . . mudflow; earth sinking, rising or shifting”; and (4) “Faulty, inadequate or defective: . . . [d]esign, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction.” Held:

We decline appellant’s invitation to include a culvert within the plain meaning of the term, “building.” This Court recognizes the substance of the definitions for a “building” which were submitted by appellant from The Illustrated Encyclopedic Dictionary and The Shorter Oxford English Dictionary on Historical Principles; both of these somewhat obscure sources essentially define a “building” as anything “built.” However, we are not persuaded thereby and will utilize the more common understanding of “building” as defined by more mainstream sources: The American Heritage Dictionary, Random House Dictionary of the English Language, and Black’s Law Dictionary, which define a “building” as, respectively: “Something that is built, as for human habitation”; “a relatively permanent construction having a room and walls, used for living, manufacturing, etc.”; “structure designed for habitation, shelter, storage, trade, manufacture . . . inclosing a space within its walls, and usually, but not necessarily, covered with a roof.” All of these sources add an element of physical human habitation and usage to the definition of the word “building” that is missing from appellant’s broad classification. “Words in an insurance contract must be given their usual, ordinary, and common meaning. OCGA § 13-2-2 (2).” Bold Corp. v. Nat. Union Fire Ins. Co., 216 Ga. App. 382, 383-384 (454 SE2d 582) (1995). As such, a culvert is not a building.

Further, the trial court in the case sub judice was disinclined to determine whether “hidden decay” was the cause of the culvert’s collapse. We have no reticence in making such determination. The scouring, erosion, and washing away of soil are not “decay.” Decay is rot; the decomposition of organic matter as a result of bacterial, fungal, or insecticidal action, resulting in destruction or dissolution. Moreover, from the photographs contained in the record which show the extensive cracking and crumbling of the structure, as well as the alarming loss of soil, the deterioration of the culvert can in no way be considered “hidden” so as to preclude discovery prior to its imminent collapse. From the record, it is clear that such discovery was not made timely, because no one looked. In an insurance contract, “[w]here the meaning is plain and obvious, it should be treated as literally provided therein.” (Citations and punctuation omitted.) U S. Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 78-79 (355 SE2d 428) (1987). Clearly, then, “hidden decay” was not applicable to the circumstances herein.

Decided September 17, 1997

Ronald L. Hilley, for appellant.

Swift, Currie, McGhee & Hiers, Michael H. Schroder, Craig A. Langley, for appellee.

Finally, even if a culvert could be considered a building, and even if erosion was synonymous with rot, recovery for the collapse of appellant’s culvert would be precluded under the specific “Exclusions” listed in the insurance policy for damage that occurs because of settling, underground water damage, earth movement, and, most applicably, because of faulty design and construction.

The plain and unambiguous terms of the insurance contract, supported by evidence of record, pierced the allegations of appellant’s complaint, thereby supporting appellee’s motion for summary judgment; thereafter, the burden of production shifted to appellant to present any evidence which would give rise to a genuine issue of material fact in support of appellant’s recovery under the terms of the policy. OCGA § 9-11-56 (c), (e). Appellant presented no such evidence. Accordingly, the trial court did not err in granting appellee’s motion for summary judgment and in denying appellant’s cross-motion.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       The American Heritage Dictionary, 3rd ed., p. 250; Random House Dictionary of the English Language, 1980, p. 118; Black’s Law Dictionary, 6th ed., pp. 194-195.

       Compare Great Eastern Cas. Co. v. Blackwelder, 21 Ga. App. 586 (94 SE 843) (1918), in which this Court determined that a semi-permanent concrete, timber, and steel derrick with a loading crane on top, which structure also contained an operator’s shed on an upper platform, was a “building” for purposes of recovery under an accidental death insurance policy; the upper levels collapsed into the river below, killing the operator, Blackwelder.

       See The American Heritage Dictionary, 3rd ed., p. 482; see also “Synonyms,” id. at 482.

       See Underwood v. U S. Fidelity &c. Co., 118 Ga. App. 847 (165 SE2d 874) (1968).


text:
    A97A2066.
    PRATT v. THE STATE.
    (492 SE2d 310)
   Beasley, Judge.

Following the denial of his motion for new trial, Pratt appeals his conviction of one count of mutiny. OCGA § 16-10-54. Pratt was indicted for two such counts based on allegations that while in the lawful custody of the Ware Correctional Institution he stabbed Correctional Officer Williams (Count 1) and bit Officer Benson (Count 2).

Evidence showed that Pratt violated prison discipline by returning to the building in which he was housed when he was assigned to a recreational area. When Officer Williams ordered him to return to the latter, he became hostile and insubordinate and threatened to kill Williams. The supervisor arrived and ordered Williams and Benson to subdue Pratt. Benson testified that as he was doing so, Pratt bit him. Other officers heard Benson exclaim that Pratt was biting him. One officer testified that he saw the gash. Pratt admitted that he bit Benson but explained he did so because Benson was choking him. Benson denied choking Pratt, and a nurse who examined Pratt testified that the only injury she observed was a laceration on his shoulder. Although there was testimony that Pratt grabbed a pen, no evidence showed he stabbed anyone with it.

The jury was unable to reach a verdict on Count 1 but found Pratt guilty on Count 2. Pratt contends that the excessive presence of uniformed correctional officers in the courtroom during the trial was inherently prejudicial and denied him a fair trial.

After the evidence had closed but before the court’s charge to the jury, some 25 uniformed correctional officers appeared in the courtroom. Defense counsel objected to their presence, arguing that defendant had a right to be tried in an atmosphere free of partiality created by the use of excessive law enforcement. The court overruled the objection after determining that these were unarmed prison security guards who had been sequestered as witnesses during the trial and were sitting toward the back of the courtroom, away from the jury, to observe the proceedings.

In Holbrook v. Flynn, 475 U. S. 560, 568-569 (106 SC 1340, 89 LE2d 525) (1986), cited by Pratt, the Court rejected the argument that the presence of uniformed law enforcement officers in a criminal courtroom is an “inherently prejudicial” practice, which may be permitted only where justified by an essential state interest. Compare Estelle v. Williams, 425 U. S. 501, 504-505 (96 SC 1691, 48 LE2d 126) (1976) (practice of forcing a defendant to wear prison clothes when appearing before the jury held unconstitutional because not supported by any essential state policy); Illinois v. Allen, 397 U. S. 337 (90 SC 1057, 25 LE2d 353) (1970) (no person should be tried while shackled and gagged except as a last resort).

In Woods v. Dugger, 923 F2d 1454 (11th Cir. 1991), on which Pratt places primary reliance, the court concluded that the number of prison guards who attended a death penalty trial in full uniform, combined with the hostile atmosphere in the small rural prison community and pretrial publicity, rose to the level of inherent prejudice depriving the defendant of a fair trial. Woods is distinguishable because there is no evidence of pretrial publicity, a hostile community atmosphere, or any other factor which would warrant the conclusion that the presence of the prison guards was actually or inherently prejudicial.

Decided September 17, 1997.

John D. Staggs, Jr., for appellant.

Richard E. Currie, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.

This case is like Lemley v. State, 245 Ga. 350, 353 (3) (264 SE2d 881) (1980), which involved uniformed police officers present in the courtroom when the court gave its recharge. Lemley objected that their presence constituted intimidation of the jury. The trial court did not allow the officers to sit near the jury but otherwise determined that their presence as interested members of the public did not amount to intimidation. The Supreme Court recognized that “ ‘[t]he conduct of the trial of any case is necessarily controlled by the trial judge, who is vested with a wide discretion and in the exercise of which an appellate court should never interfere unless it is made to appear that wrong or oppression has resulted from its abuse. [Cits.]’ [Cits.]” Id. at 353-354 (3). It held there was no abuse of discretion. We hold likewise.

Contrary to Pratt’s contention otherwise, he was “ ‘tried in an atmosphere free of partiality created by the use of excessive guards.’ ” Allen v. State, 235 Ga. 709, 711-712 (221 SE2d 405) (1975). The officers were not even acting as guards but only as spectators, and the court was not obligated to exclude them in order to assure a fair trial. See also Spivey v. State, 253 Ga. 187, 203 (12) (319 SE2d 420) (1984).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A1518.
    BELL v. APREA.
    (492 SE2d 247)
   Beasley, Judge.

We granted Bell’s application for discretionary appeal to determine whether the evidence supports her conviction of criminal contempt.

Bell is Aprea’s former wife. They were divorced in June 1994. She was awarded custody of their two sons, and he was granted supervised visitation at the DFACS offices and then elsewhere. Bell sought to terminate Aprea’s parental rights in 1995, but the case was dismissed because of improper venue and jurisdiction. However, an earlier suspension of Aprea’s visitation remained in effect and Bell refiled her petition in the proper court. In June 1996, during the course of the termination proceeding, supervised visitation by Aprea with only the younger son on specified dates was ordered. Noting that Bell did not communicate certain conditions of visitation to the family therapist, the order for visitation was “nullified” by the court and other visitation arrangements were ordered. The court further provided that Bell be “restrained from hindering or frustrating the progress of these sessions.”

One of the sessions took place on July 29. Between 2:30 and 3:00 that afternoon, Bell’s current husband was en route to their home when he noticed Aprea’s car parked at an Applebee’s Restaurant and Bar. Bell and her husband traveled back along the same route to take the child to his visitation session with Aprea. They observed Aprea’s car still at Applebee’s at about 5:00. Bell placed a 911 call to alert police to the possibility of a drunken driver. An officer later approached Aprea as he was pumping gas at a service station, questioned him for approximately three minutes, and let him go because he was not intoxicated. Aprea testified that he then proceeded to his visitation session and had an enjoyable visit. Bell testified that Aprea arrived at the session on time but lingered outside to smoke a cigarette.

Bell’s testimony indicated that she placed the 911 call because Aprea had a drinking problem that caused him to become belligerent and disruptive. She testified that at the visitation preceding the July 29 session, she noticed an odor of alcohol about him. An employee of Applebee’s testified that Aprea had been there less than an hour on the day in question and had consumed about one and one-half beers. Aprea acknowledged this although he disputed the amount consumed there. Two other bars are within walking distance of Applebee’s. The mother of a friend of the parties’ children was present on another occasion when Aprea visited the child after the July 29 incident, and Aprea smelled strongly of alcohol, was noticeably intoxicated and repeatedly threw rubber balls at the child’s genitals despite the child’s outcry of pain and protest.

Because of a jurisdictional problem involving the second termination proceeding in Jasper County, Bell instituted another proceeding in September 1996 for termination of Aprea’s parental rights, also in Jasper County. Aprea filed this petition in mid-November charging Bell with contempt of the June 1996 order by placing the 911 call on July 29. Finding that Bell’s conduct was primarily motivated by her desire to hinder and obstruct the orderly visitation pursuant to that order, the court found Bell in contempt and ordered that she be incarcerated for 48 hours.”

“By imposing this unconditional imprisonment for a specified period, the court found appellant guilty of criminal contempt. [Cit.]” Life for God’s Stray Animals v. New North &c., 256 Ga. 338 (2) (349 SE2d 184) (1986). “The appellate standard of review of a criminal contempt conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. [Cit.]" Arnold v. McKibbins, 210 Ga. App. 262, 265 (6) (435 SE2d 685) (1993).

Decided August 22, 1997

Reconsideration denied September 19, 1997.

Patricia M. Moon, Robert F. Mumford, for appellant.

Minio Aprea, pro se.

The court order subjected Bell to contempt by hindering or frustrating the progress of appellee’s visitation sessions. Although the evidence may support the court’s finding that her actions indicate a “desire” to accomplish such a purpose, it does not support a finding that any such purpose was achieved. There is no proof that Aprea’s visitation was in fact hindered or obstructed. The evidence is insufficient to support the conviction of criminal contempt.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.