author: Blackburn, Judge.

text:
    A93A2383.
    BLAIR v. POYTHRESS.
    (440 SE2d 261)
   Blackburn, Judge.

We granted Blair’s discretionary application to determine whether continued abusive treatment by an employer constitutes “good cause” to justify an employee’s voluntary cessation of employment and prevent the disqualification from the receipt of unemployment compensation benefits under OCGA § 34-8-194.

The. appellant, Ann Blair, had been employed with her most recent employer, Sarge’s Broasted Chicken, as a cook intermittently for approximately five years prior to June 1992. Before an administrative hearing officer, Blair testified that she had been subjected to verbal abuse from Kenneth Williams, the owner of the restaurant and her immediate supervisor during this five-year period. The evidence is in conflict as to the events leading up to Blair’s cessation of employment with Sarge’s on June 20,1992. On June 19,1992, Williams complained about her manner of performing an assigned task, and in complaining, used profane language. After she asked him not to speak to her in that manner, he threatened to shoot her in the head with a gun and kill her. He subsequently physically assaulted her. Blair did not cease her employment at that time because she needed the job, and continued to work on that day until she was told by Williams that it was time for her to go home. Upon her return to work on the following day, Williams, again using profane language, berated her for informing other employees of the bruises that she received during the physical attack, and pounded his hand on a table. Obscenities were subsequently directed at Blair by Williams as he falsely accused her of not performing her work duties, and asked her to leave the premises. As Blair thought that she had been discharged by Williams, she gave Williams the keys to the restaurant and left the premises.

During his testimony at the hearing, Williams denied verbally abusing Blair, but admitted that he grabbed her arms on June 19, 1992, to prevent himself from falling on one occasion when he tripped on a small table in the kitchen of the restaurant. He admitted that Blair’s work performance normally was good, but her job performance had been recently affected by family problems. He did admit that he asked her to leave on June 20, 1992, if she could not perform her required tasks after she had indicated earlier that she was going to quit. However, she did not leave at that point, and instead prepared breakfast for a customer. Afterwards, she informed him that she was quitting at the end of her shift, and he told her not to wait because she could leave at that point. Although she left the premises, she did not inform him of the reason why she was leaving. She had earlier indicated that she would quit if he hired a certain employee. A cook employed by the restaurant testified that Blair, while in tears, informed her on the morning of June 20, 1992, that she was not going to continue to work for Williams but did not state why she was going to discontinue her employment.

Blair was initially awarded unemployment compensation benefits effective June 28, 1992. At Sarge’s request, the award of unemployment compensation in favor of Blair was reviewed by an administrative hearing officer. In reversing the award of benefits, the hearing officer found that it was likely that Blair quit her employment but she did not make a factual finding on the basis for Blair’s voluntary departure. The hearing officer indicated that if Blair had ceased her employment based on the employer’s verbal abuse which had occurred for years, this reason would not constitute a good work-connected cause because Blair had accepted verbal abuse as a condition of her employment. The hearing officer concluded that since there had been no change in circumstances to cause the work to become unsuitable, her voluntary departure was without good cause. The Board of Review adopted the findings made by the hearing officer, and, with one member dissenting, affirmed the decision of the hearing officer. The decision of the Board of Review was subsequently affirmed by the Superior Court of Clayton County.

On appellate review of unemployment appeals, “[t]his court does not sit as a fact-finding body, but rather one for the correction of errors of law.” (Citations and punctuation omitted.) Moore v. Tanner, 172 Ga. App. 792, 793 (1) (324 SE2d 772) (1984). “Whether or not an employee voluntarily leaves employment is usually a question of fact, but whether there existed good cause for his voluntary termination more often requires a legal conclusion.” (Citations and punctuation omitted.) Holstein v. North Chem. Co., 194 Ga. App. 546, 548 (390 SE2d 910) (1990); Western Elec. Co. v. Ellison, 170 Ga. App. 565, 566 (317 SE2d 595) (1984).

Under Georgia law, “[a]n individual shall be disqualified for benefits: (1) For the week or fraction thereof in which the individual has filed an otherwise valid claim for benefits after such individual has left the most recent employer voluntarily without good cause in connection with the individual’s most recent work.” OCGA § 34-8-194. Our legislature has not statutorily defined the term good cause, but this court has interpreted OCGA § 34-8-158, which contained similar language, and applied the term in various factual settings. In Holstein, supra, we held that an employee’s inability to properly perform his employment duties without unreasonable risk of harm to his health constituted good cause as a matter of law. However, by contrast, if an employee’s voluntary termination from employment is to facilitate a move to a different locality, or based upon the personal dislike for a fellow employee, and impliedly, not related to the conditions of employment, such voluntary departure is insufficient to con-. stitute the good cause necessary to prevent disqualification. Id.; Ellison, supra. This court has not addressed the issue of good cause justifying an employee’s voluntary departure from employment in the context of verbal and physical abuse by an employer or supervisor. However, “[n]umerous courts have held that [the] intentional harassment of an employee is an abnormal working condition and constitutes good cause for leaving work voluntarily. [Cits.]” Woods v. Iowa Dept. of Job Svc., 327 NW2d 768, 770 (Iowa App. 1982).

In Associated Utility Svcs. v. Bd. of Review, Dept. of Labor &c., 331 A2d 39 (N. J. Super. 1974), where an unemployed claimant therein had been continuously harassed, verbally abused, and mistreated by her supervisor, New Jersey’s appellate court concluded that the intentional harassment by her supervisor “creat[ed] such intolerable and abnormal working conditions that [the employee] was justified in quitting the job. . . .” Id. at 41. In McPherson v. Employment Div., 591 P2d 1381, 1390 (Or. 1979), the Oregon Supreme Court noted that “[t]he workplace is the setting of much of the worker’s daily life.” Consequently, as a matter of law, a worker is not required to “sacrifice all other than economic objectives and, for instance, endure racial, ethnic, or sexual slurs or personal abuse, for fear that abandoning an oppressive situation will disqualify the worker from unemployment benefits. [Cit.]” Id.

Decided January 13, 1994.

A. Larry King, Jr., for appellant.

In light of the guidance provided by those decisions, we must agree with Blair that the trial court erred as a matter of law in affirming the decision of the Board of Review because the decision was based in part on a misapprehension of the term “good cause.” In addition, the hearing officer incorrectly concluded that Blair accepted the verbally abusive treatment as a condition of her employment. On the contrary, an employee does not waive the right to voluntarily cease employment based upon the abusive treatment of an employer or supervisor merely because the employee tolerated such abusive conduct in the past.

Verbal and physical abuse inflicted by an employer or other supervisory personnel is such an intolerable condition which would make a reasonable and prudent person of normal sensitivity leave such an environment. Therefore, we conclude that, as a matter of law, if an employee’s voluntary cessation of employment is due to the verbally or physically abusive conduct of an employer or supervisory personnel which is of such a gravity that would justify a reasonable person to “voluntarily [leave] the ranks of the employed and [join] the ranks of the unemployed,” this voluntary departure constitutes the requisite good cause to prevent disqualification. Associated Utility Svcs., supra at 40. See also Richards v. Daniels, 615 SW2d 399 (4) (Ark. App. 1981). In these limited circumstances, an employee “cannot then reasonably be judged as free to stay at the job. [Cit.]” Associated Utility Svcs., supra at 40. To conclude otherwise would be inconsistent with Georgia’s strong public policy “favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2.” Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984). See also Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674, 675 (302 SE2d 596) (1983).

Accordingly, the decision of the trial court affirming the Board of Review and hearing officer’s denial of Blair’s unemployment benefits is reversed, and the case is remanded for reconsideration in light of this opinion.

Judgment reversed and remanded.

McMurray, P. J., and Johnson, J., concur.

Michael J. Bowers, Attorney General, Valencia D. Copeland, Staff Attorney, for appellee.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A93A1126.
    KEITH et al. v. JOHNSON.
    (440 SE2d 230)
   Beasley, Presiding Judge.

The brothers of Clarence Keith appeal from the trial court’s order granting appellee’s summary judgment motion and denying their own summary judgment motion in a case involving Clarence’s estate.

Clarence and Ruth Keith, husband and wife, died in an apparent murder/suicide. Clarence left no will, Ruth did, and they had no children. Much of their property was held jointly.

Appellants, the next of kin of Clarence, selected Clarence’s niece, Sale, to be appointed administratrix of his estate. Appellee Johnson, executrix of Ruth’s estate, filed a caveat to Sale’s appointment claiming Johnson should be appointed administratrix of Clarence’s estate instead. Her theory was that Ruth’s estate was the sole heir to Clarence’s estate since Clarence killed Ruth before he committed suicide and, pursuant to OCGA § 53-4-6, Clarence is treated as having predeceased Ruth.

Johnson filed a second caveat seeking appointment of a resident of Bacon County as administrator of Clarence’s estate. The probate court appointed Sale and Harper as co-administrators of Clarence’s estate. Sale appealed to the superior court.

Johnson then filed a petition for declaratory judgment against appellants, Clarence’s brothers, seeking a determination that Ruth’s estate was the sole heir of Clarence. Upon motions of Sale and the Keith brothers, and there being no objection by Johnson, the superior court consolidated Sale’s appeal with the petition for declaratory judgment.

The Keiths as defendants in the declaratory judgment action sought summary judgment on the ground that Ruth was not an heir to Clarence’s estate. They took the following alternative position. If Ruth killed Clarence, she was precluded from inheriting by virtue of OCGA § 53-4-6 (a). If, on the other hand, Ruth was killed by Clarence, she was precluded from inheriting by virtue of her earlier death; OCGA § 53-4-6 (a) did not apply to her estate.

Johnson, executrix of Ruth’s estate, also moved for summary judgment on the ground that OCGA § 53-4-6 (a) establishes Ruth as Clarence’s sole heir because it treats him as having predeceased her, due to his having murdered her. She also filed, along with the motion, the transcript of the coroner’s inquest concerning their deaths. Later, before the court’s order was filed, she supplemented the record with certified copies of their death certificates showing both Clarence and Ruth as having expired from gunshot wounds.

After a hearing, the court concluded that there was no genuine issue of fact with respect to who killed whom and stated that Clarence killed Ruth and then himself. Based on this fact, the court applied OCGA § 53-4-6 and held that Ruth was an heir of Clarence’s. The court reasoned that OCGA § 53-4-6 operates to treat the person killing as though he had predeceased the person killed such that “the person killed is an heir of the person so killing.” Consequently, it granted Johnson’s motion for summary judgment and denied that of the Keith brothers, who appealed both rulings.

1. As to the grant of Johnson’s motion, appellants contend that there was no evidence in the record that Clarence killed Ruth and then himself, and that the court misconstrued OCGA § 53-4-6.

(a) There is no counter evidence to the sworn testimony in the coroner’s inquest. It shows that Ruth’s death was by homicide committed by Clarence and that his death was by suicide. Although the verdict of the coroner’s jury has no probative value as evidence, Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 168 (2) (270 SE2d 349) (1980), the transcript is probative evidence on motion for summary judgment. Abalene Pest Control Svc. v. Orkin Exterminating Co., 196 Ga. App. 463, 464 (3) (395 SE2d 867) (1990); Bodrey v. Cape, 120 Ga. App. 859, 860 (1) (172 SE2d 643) (1969). The court did not err in concluding that there was no genuine issue of fact regarding the order or the perpetrator of the couple’s deaths. OCGA § 9-11-56 (a) and (e).

(b) Appellants contend the court erred in interpreting OCGA § 53-4-6 as creating in the murdered spouse a right of inheritance to the estate of the killing spouse; in other words, the court erred in determining that the killing spouse predeceased the murdered spouse for the purposes of determining who would inherit the killing spouse’s estate.

The statute provides: “The right of inheritance shall be denied any person who with malice aforethought kills any other person or who conspires with another to kill or who procures another to kill any person. This denial of inheritance shall include any property which the person so killing would otherwise have inherited, whether real, personal, or mixed, or any part thereof, belonging to the deceased person at the time of death, or any property which the person so killing would take by deed, will, or otherwise at the death of the decedent. All right, interest, and estate in and to the property shall go to such other heirs as may be entitled thereto by the laws of descent and distribution or by will, deed, or other conveyance duly executed by the decedent in his lifetime. For the purpose of determining the descent and distribution through the person so killing he shall be treated as though he had predeceased the person killed.” OCGA § 53-4-6 (a).

OCGA § 1-3-1 (a) requires that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” Under this statute, “it is our obligation to seek the legislature’s intention,. . . and to attempt to effectuate the legislature’s purpose.” (Citation omitted.) McClinton v. Sullivan, 208 Ga. App. 411 (2a) (430 SE2d 794) (1993). “[T]he legislative intent must be determined from a consideration of [the statute] as a whole . . . [t]he construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole.” Bd. of Trustees &c. v. Christy, 246 Ga. 553, 554 (272 SE2d 288) (1980).

The evil addressed by OCGA § 53-4-6 was first pointed out in Hagan v. Cone, 21 Ga. App. 416 (43 SE 646) (1917), where it was stated that “[t]he question in this case is whether or not a husband who kills his wife can inherit her property.”

Relying on current OCGA § 53-4-2 (upon the death of a wife, the husband is the sole heir); Ga. Const., Art. I, Sec. I, Par. XX (“[n]o conviction shall work corruption of blood or forfeiture of estate”), and OCGA § 44-5-210 (giving the state a lien on the property of a convicted offender for the costs of the prosecution), this court held that while some states had said that one who kills another cannot inherit from the deceased, “where there is a statute which fixes the rule of descent, as in our State, the authorities are practically united in holding that the fact that the heir killed the person from whom he is to inherit will not bar the operation of the statute.” Hagan, supra at 417.

This rule was adopted by the Supreme Court in Crumley v. Hall, 202 Ga. 588 (43 SE2d 646) (1947), where the husband murdered his wife and fled and had not been heard from in eight years. There were no children. The wife’s mother, brother and sister sued the administrator of her estate, contending that the husband could not inherit from the wife, having killed her.

The court held that “[o]ur law is clear and plain that, where a wife dies without issue, the husband is the sole heir. It is not limited or restricted by any condition or circumstance. The power to provide rules of descent and distribution is in the General Assembly, and where they have provided a rule which is clear and unconditional, a court is not justified in reading into the law a condition or exception not reasonably deducible from the provisions of the statute. The law being clear and explicit, the evil, if any, can be corrected only by the General Assembly, and not by judicial action.” Id. at 591.

In 1952, in apparent response to these cases, the General Assembly passed OCGA § 53-4-6. The Act was described in its title as one “to prohibit any person who shall with malice aforethought, kill another for the purpose of inheriting the property of the deceased . . . , from inheriting or in any way taking the property of the deceased. . . .” Ga. L. 1952, p. 289. In 1959, the language requiring the purpose of the murder be to inherit was deleted. Ga. L. 1959, p. 299 et seq. Again, the bill was described as one to provide that “the right of inheritance . . . shall be denied to any person who would otherwise be the heir at law . . . and who has with malice aforethought killed such person. . . .”

The purpose of OCGA § 53-4-6 is clear. It is to deprive the murderer and, by virtue of the last sentence, his heirs, of any property or interest in property held by the victim. This is in keeping with the legislative intent as articulated in Moore v. Moore, 231 Ga. 232, 235 (2) (201 SE2d 133) (1973): “The obvious intent of the General Assembly was to prohibit a person who maliciously kills from taking property of the deceased.” This court had, a few months earlier, perceived the same thing: “The . . . code section provides in substance that where a person kills another he shall not inherit from the person he killed.” Willis v. Frazier, 128 Ga. App. 748 (197 SE2d 830) (1973). That does not mean that the victim becomes the heir of the murderer; the sole purpose of the statute is to disinherit the murderer, and the murderer’s heirs, from any property interest of the victim so that neither benefits property-wise from the criminal act.

As in Crumley, supra at 591, the court “is not justified in reading into the law” the meaning ascribed by Johnson, because it is “not reasonably deducible from the provisions of the statute.” The court erred in granting Johnson’s motion for summary judgment.

2. For the reasons set out above, the court erred in denying the motion for summary judgment made by the Keith brothers as defendants in Johnson’s declaratory judgment action. Although they attempt to expand the issues before the court to include the question of who by law is to administer Clarence’s estate, that question was not properly before the trial court by way of the motion and was not ruled on. Sale, the administrator who challenged the probate court’s appointment of a co-administrator, did not move for summary judgment. Thus, we do not rule on this issue either.

Decided December 20, 1993

Reconsiderations denied January 18, 1994

Walters, Davis, Meeks & Pujadas, Thomas E. Pujadas, Charles E. Bagley, Jr., for appellants.

Solomon & Edgar, M. Theodore Solomon II, for appellee.

Evelyn H. Johnson, pro se.

Judgment reversed.

Cooper, J., concurs. Smith, J., concurs in the judgment only.

       Despite what is stated thereon, the death certificates are not prima facie evidence of who inflicted the gunshot wounds. Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 176 (4) (355 SE2d 104) (1987).

       See generally Annotation, “Homicide As Precluding Taking Under Will Or By Intestacy,” 25 ALR4th 787 et seq.

       The husband’s brothers would have no claim through Clarence, because by the fiction of his dying first, he inherited nothing from his wife. His “right of inheritance” was extinguished at the time of his death, which for the purpose of descent and distribution occurred when she was still living. Thus, as provided in the statute, whatever portion of her estate would have been inherited by the husband who killed her devolved instead to her “other heirs.” As said in McGhee v. Banks, 115 Ga. App. 155, 156 (154 SE2d 37) (1967), “[b]y the term ‘other heirs’ [in the statute] the legislature meant other heirs of the deceased [the wife], whether the deceased [the wife] died intestate or testate.”


author: Johnson, Judge.

text:
    A93A1871.
    ACORD v. JONES.
    (440 SE2d 679)
   Johnson, Judge.

Acord appeals from the trial court’s grant of Jones’ motion for judgment on the pleadings.

Acord gave Jones two promissory notes which were secured by real property. The interest-bearing notes, which were payable in monthly installments and matured in five and ten years, were silent on the issue of prepayment. Acord attempted to pay them off prior to maturity by tendering the outstanding principal plus accrued interest. Jones refused the tender, maintaining that the notes did not allow prepayment and that, even if they did, the amount tendered did not cover the full indebtedness since it did not include unaccrued interest. Acord filed suit to force cancellation of the notes and security deeds since he had tendered what he considered to be the full amount due. Acord filed a motion for summary judgment and/or for judgment on the pleadings. Jones apparently filed a cross-motion for judgment on the pleadings. The trial court denied Acord’s motion and granted judgment on the pleadings to Jones. Acord appeals. We reverse the trial court’s decision.

In his sole enumeration of error, Acord contends that the trial court erred in holding that the terms of the contract did not allow prepayment. He argues that because the notes contain the phrase “[i]f not sooner paid,” there is the implication that the notes may be paid prior to maturity. Neither party has cited, and our research has failed to uncover, any cases in which Georgia courts have been called upon to decide whether that language has the effect of allowing prepayment, and if so, whether the lender would be entitled to recover unearned interest.

“In construing contracts . . . the language used must be afforded its literal meaning and plain ordinary words given their usual significance.” (Citations and punctuation omitted.) Twin Oaks Assoc. v. DeKalb Venture, Ltd., 190 Ga. App. 854, 855 (1) (380 SE2d 469) (1989). In its plain ordinary sense, the phrase “if not sooner paid” clearly contemplates the possibility of early repayment. Further, the phrase would have to be construed against Jones as the drafter. Roswell Properties v. Salle, 208 Ga. App. 202, 206 (3) (430 SE2d 404) (1993). Thus, we hold that Acord was entitled to prepay the indebtedness.

However, the issue of whether unaccrued interest can be required as part of the prepayment remains. In the absence of a contractual provision addressing the issue, we must apply existing law. See State Farm &c. Ins. Co. v. Hodges, 111 Ga. App. 317, 321 (141 SE2d 586) (1965); Jenkins v. Morgan, 100 Ga. App. 561 (112 SE2d 23) (1959). The trial court and Jones rely upon Cook v. Securities Investment Co., 184 Ga. 544 (192 SE 179) (1937), for the proposition that the payee of an installment note cannot be compelled to accept prepayment of the principal with interest to date only. Id. at 548. A careful reading of that case, however, reveals that it is not dispositive of the issues in the instant case. We note that what Jones refers to as the holding in Cook is merely dicta. There is nothing in the opinion in Cook which indicates that that case involved language comparable to the “if not sooner paid” phrase in the contracts which are the subject of the instant case. Cook involved the rights of a judgment creditor where legal title to the property of the debtor had been conveyed to a third party to secure a debt to the third party; accordingly, that case was decided pursuant to § 39-201 of the Code (now OCGA § 9-13-60), a section which is inapplicable here. Id. at 546-548.

Since Cook was decided 56 years ago, we have held that a contract which provides for the payment of purchase money notes “on or before maturity” does allow the maker to pay principal plus accrued interest at any time prior to maturity and relieves the maker of having to pay unearned interest. Kuttner v. May Realty Co., 220 Ga. 163, 164 (137 SE2d 637) (1964). In addition, the legislature has enacted several statutes, such as the Motor Vehicle Sales Finance Act (OCGA § 10-1-30 et seq.), the Retail Installment & Home Solicitation Sales Act (OCGA § 10-1-1 et seq.), and the Industrial Loan Act (OCGA § 7-3-1), all of which, among other things, relieve consumers of the obligation to pay unearned interest when debts are paid off prior to maturity. While not applicable here, these statutes do show consistent recognition of a public policy in favor of allowing prepayment of loans without penalty. To require payment of unearned interest in this case would effectively impose a prepayment penalty where none has been contemplated by the terms of the contracts. The law does not favor penalties. See generally Southern Guar. Corp. v. Doyle, 256 Ga. 790, 792 (353 SE2d 510) (1987); Wasser v. C & S Nat. Bank, 170 Ga. App. 872, 873 (318 SE2d 518) (1984). We hold that, in the absence of an express contractual provision to the contrary, a maker may prepay principal plus accrued interest, without being required to tender unaccrued interest or pay any other penalty. Because Acord was entitled to prepay the debts and since he made a valid tender, Jones was required to accept the payment as satisfaction of the debts and cancel the security deeds.

Decided January 18, 1994.

Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, for appellant.

Clarence A. Miller, for appellee.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       The notes set forth the amount borrowed, interest rates, dates and amounts of installments and provide for payment of “a like amount on the same day of each succeeding month thereafter to be applied first to any interest due, then to principle [sic] until the total of said indebtedness shall be paid in full. If not sooner paid the total balance due hereunder shall be paid at the expiration of Ten years from date.”


author: Andrews, Judge.

text:
    A93A1808.
    A93A1809.
    NORTON v. NORTH GEORGIA FOODS, INC. et al. CHYNOWETH v. NORTH GEORGIA FOODS, INC. et al.
    (440 SE2d 263)
   Andrews, Judge.

As employees of North Georgia Foods, Inc. (NGF), Norton and Chynoweth and family members were covered by a group medical insurance policy issued by National Employee & Operators Association (NEOA) to NGF, and administered by Administrative Systems of Tennessee, Inc. (ASTI). After the insurer failed to pay covered medical expenses, apparently because it was financially unable, appellants filed similar complaints naming as defendants: NGF; trustees of NEOA; Hall (president of NEOA during the subject events); Lauver (organizer and promotor of NEOA and ASTI), and three defendants named as the licensed insurance agents or agencies through which the NEOA policy was procured for NGF: Norton d/b/a Norton Agency, Phillips, and W. H. Phillips & Associates, Inc. (insurance agents).

The complaints sought recovery of damages against the defendants for fraud and negligence for failure to pay the benefits, alleging that the trustees of NEOA breached fiduciary duties; that the insurance agents knew or should have known that NEOA was not a properly licensed or legitimate company, and that the agents received exorbitant commissions, and knew or should have known that the NEOA policy was not financially sound; that Lauver organized and promoted NEOA and ASTI for the purpose of selling policies he knew were financially unsound, and improperly took funds from NEOA and ASTI for personal use; and that as president of NEOA, Hall assisted and participated in the alleged fraudulent conduct.

NGF filed a motion to dismiss both complaints, claiming the trial court lacked subject matter jurisdiction because the state actions were preempted by federal law under the Employee Retirement Income Security Act (ERISA), 29 USC § 1001 et seq. The trial court concluded that both complaints were wholly superseded by ERISA, and dismissed all the defendants for lack of subject matter jurisdiction. OCGA § 9-11-12 (b) (1); (h) (3). Norton and Chynoweth appeal claiming the trial court erroneously concluded the actions were preempted by ERISA.

“With the exception of four narrow exclusions not relevant to this action, Congress has mandated that ERISA ‘shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan [. . .]’ 29 USC § 1144 (a); Whitaker v. Texaco, Inc., 566 FSupp. 745, 748 (N.D. Ga. 1983). ‘The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law,’ 29 USC § 1144 (c) (1), and any state law having ‘a connection with or a reference to’ an employee benefit plan covered by ERISA is preempted. Shaw v. Delta Air Lines, 463 U. S. 85, 97 (103 SC 2890, 77 LE2d 490) (1983). Federal district courts have exclusive jurisdiction over all ERISA claims except those brought by a plan participant or beneficiary ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’ 29 USC § 1132 (a) (1) (B); see 29 USC § 1132 (e) (1).” Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 819 (377 SE2d 901) (1989).

We have no difficulty concluding that the present health insurance policy was an ERISA governed plan. Time Ins. Co. v. Roberts, 191 Ga. App. 766, 767-768 (382 SE2d 718) (1989). Despite appellants’ contentions that the complaints were intended to assert state common law claims, the trial court correctly concluded that the state actions at issue “relate to” the covered plan, and are preempted by ERISA. Id. at 768.

In determining whether a state action relates to an ERISA covered plan, the “relate to” language of § 1144 (a) has been broadly interpreted by the United States Supreme Court to effectuate the intent of Congress that regulation of employee benefit plans be exclusively a federal concern. Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 137-138 (111 SC 478, 112 LE2d 474) (1990). The present state actions are not based on state laws only tenuously related to the benefit plan, which are beyond the preemptive reach of ERISA. See, e.g., Mackey v. Lanier Collections Agency &c., 486 U. S. 825 (108 SC 2182, 100 LE2d 836) (1988) (ERISA did not preempt state’s general garnishment statute even though applied to collect judgments against plan participants); Sommers Drug Stores Co. &c. Trust v. Corrigan Enterprises, 793 F2d 1456, 1465-1470 (5th Cir. 1986) (corporate officer’s fiduciary duties to shareholders not preempted by ERISA merely because employee benefit plan was shareholder). However, the state law need not be directly addressed to the pension plan to be preempted. “[A] state law may ‘relate to’ a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Ingersoll-Rand, supra at 139. Where “the existence of a pension plan is a critical factor in establishing liability under the [applicable state law] . . . [the] cause of action relates not merely to pensions benefits, but to the essence of the pension plan itself.” Id. at 139-140. Accordingly, state law claims have been preempted by ERISA which sought damages arising from denial of plan benefits on the basis of fraud, intentional infliction of emotional distress, breach of covenant of good faith and fair dealing, tortious interference with contract, and unfair trade practices. See Howard v. Parisian, Inc., 807 F2d 1560, 1564 (11th. Cir. 1987). Applying these principles, we conclude the state law claims in this case “relate to” the plan at issue, and are preempted by ERISA.

Our conclusion with respect to preemption is not changed by appellants’ contention that at least some of the named defendants are not fiduciaries within the meaning of ERISA. See 29 USC §§ 1102 (a); 1002 (21) (A). Since ERISA does not provide for the imposition of money damages against a non-fiduciary defendant alleged to have knowingly participated in a breach committed by an ERISA fiduciary, preemption of the state actions may preclude the collection of monetary damages from these defendants. Mertens v. Hewitt Assoc., _ U. S. _ (113 SC 2063, 124 LE2d 161) (1993). Nevertheless, assuming (without deciding) that defendants such as the insurance agents in this case were non-fiduciary advisors, insofar as the claims against them relate to the ERISA covered plan, they are still preempted. Howard, supra at 1564-1565; see Belasco v. W. K. P. Wilson & Sons, 833 F2d 277, 281 (11th Cir. 1987).

Decided January 19, 1994.

Wesley Williams, for appellants.

Rubin Law Offices, Robert P. Hoyt, Robert K. Ballew, Kinney & Kemp, Matthew D. Thames, for appellees.

The trial court properly dismissed the actions against all defendants for lack of subject matter jurisdiction. Time Ins. Co., supra.

Judgments affirmed.

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

       Norton also sued a reinsurer of the NEOA policy for recovery of reinsurance benefits, but the claim against this defendant was later dismissed by Norton.

       We note that this case does not deal with state laws regulating the business of insurance, which are excepted from ERISA exemption under 29 USC § 1144 (b) (2) (A). The insurance exception is not applicable to state actions under general tort law claims which may merely affect insurance in some way. Anschultz v. Connecticut Gen. Life Ins. Co., 850 F2d 1467, 1468-1469 (11th Cir. 1988); Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (107 SC 1549, 95 LE2d 39) (1987).


author: McMurray, Presiding Judge.

text:
    A93A2509.
    JOHNSON v. RICE.
    (440 SE2d 81)
   McMurray, Presiding Judge.

Betty Johnson (plaintiff) brought an action against Robert Rice (defendant) for personal injuries she allegedly sustained while removing debris, salvaging and clearing damaged property in her store precipitated by defendant’s negligent operation of an automobile. The evidence adduced upon defendant’s motion for summary judgment reveals that defendant drove a car into plaintiff’s grocery store and disabled several of the store’s food refrigeration units; that plaintiff strained her shoulder while attempting to save goods exposed to spoilage after the collision and that, about a month after the collision, plaintiff injured the same shoulder while cleaning rain water from an area of the store damaged during the collision.

The trial court granted defendant’s motion for summary judgment, finding that defendant’s negligence was not a proximate cause of plaintiff’s injuries. This appeal followed. Held:

“ Tn order to recover in this case it must be made to appear, that not only was the defendant negligent in one or more of the ways alleged in the petition, but also that such negligence, if any, resulted in, as the proximate cause thereof, the injuries complained of. If the injuries complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant, or could not reasonably have been expected to result therefrom, or would not have resulted therefrom, but from the interposition of some independent unforeseen cause, the defendant’s such antecedent wrongful act or omission, if any, would not be the proximate cause of the injury complained of. If the injury could not be reasonably anticipated as the probable result of an act of alleged negligence, such act is either a remote cause or no cause.

Decided January 19, 1994.

Richard G. Smith, for appellant.

Tisinger, Tisinger, Vance & Greer, J. Branson Parker, for appellee.

“ ‘It is stated in Logan v. Cincinnati &c. R. Co. (Ky. App.), 129 S.W. 575, 577, as follows: “ ‘A prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.’ Thompson on Negligence, § 2.” ’ Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga. App. 711, 715 (26 SE2d 545).” Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (3) (341 SE2d 250).

In the case sub judice, it is our view that defendant’s alleged negligence was not a proximate cause of plaintiff’s injuries. Plaintiff injured her shoulder while doing manual labor after the accident. Defendant’s conduct in driving an automobile into plaintiff’s grocery store could have done nothing more than give rise to the occasion which made plaintiff’s injuries possible. Consequently, defendant’s conduct was, at most, a remote cause of plaintiff’s injuries.

The trial court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A94A0198.
    DREW v. THE STATE.
    (440 SE2d 82)
   McMurray, Presiding Judge.

Defendant Drew appeals his conviction of two counts of felony obstruction of a law enforcement officer. Held:

The sole enumeration of error maintains that the trial court erred in failing to charge the jury, or defense counsel was ineffective in failing to request a charge to the jury, on the lesser included offense of misdemeanor obstruction of a law enforcement officer. The misdemeanor obstruction offense does not contain the element of “violence” as does the felony offense. Williams v. State, 196 Ga. App. 154, 156 (1) (395 SE2d 399). However, under the evidence presented at trial any obstruction of the officers was by means of “violence,” and defendant was either guilty of the felony or innocent of any crime. Under these circumstances the trial court did not err in refusing to charge on misdemeanor obstruction and defense counsel was not remiss in failing to request such a charge. Coker v. State, 207 Ga. App. 482, 484 (4) (428 SE2d 578); Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591); Hogan v. State, 205 Ga. App. 637, 638 (2) (423 SE2d 47); Love v. State, 194 Ga. App. 601, 603 (4) (391 SE2d 447).

Decided January 19, 1994.

Robert S. Devins, for appellant.

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

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A93A0673.
    MAYER ELECTRIC SUPPLY COMPANY, INC. v. DeKALB COUNTY.
    (440 SE2d 84)
   Smith, Judge.

Mayer Electric Supply Company, Inc., a materialman on a public works project, brought suit against DeKalb County when it was not paid and the general contractor’s surety proved insolvent. The trial court granted the county’s motion for judgment on the pleadings, and Mayer appealed. We reversed, relying in part on this court’s holding in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1) (430 SE2d 13) (1993), that the schedule of real estate accompanying the surety’s affidavit was so facially irregular that the county was required to have inquired into the surety’s solvency, and its failure to do so rendered it liable to the materialman upon the surety’s insolvency.

The case is now before the court pursuant to the Supreme Court’s remand, after granting certiorari, for reconsideration in light of the Supreme Court’s reversal of this court’s opinion in DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (437 SE2d 327) (1993).

In J & A Pipeline, the Supreme Court held that if “the county takes a payment bond from the general contractor or an affidavit from the surety which does, on its face, comport with the statutory requirements [as to “manner” and “form”], the subcontractors’ and materialmen’s direct action remedy will be defeated notwithstanding the subsequent inefficacy of the bond or the subsequent discovery of the falsity of the affidavit.” Since in this case, as in J & A Pipeline, the affidavit required under OCGA § 36-82-102 was taken “in the manner and form required” by the Code section, the materialman’s direct action remedy was defeated.

Decided January 20, 1994.

Bryant, Davis & Cowden, Larry S. Bryant, Cynthia L. Weese, for appellant.

Patrick F. Henry, Jr., Johnson & Montgomery, Albert S. Johnson, for appellee.

Accordingly, upon reconsideration in light of the Supreme Court’s opinion in J & A Pipeline, the prior judgment of this court in this case is vacated, and pursuant to the judgment of the Supreme Court, as expressed in the holding in J & A Pipeline, as applied to this case, the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1212.
    GUILLMAN v. GEORGIA POWER COMPANY et al.
    (440 SE2d 83)
   McMurray, Presiding Judge.

Plaintiff Guillman is an employee of an independent contractor who was injured while doing maintenance and repairs at defendant Georgia Power Company’s Plant Branch during a periodic shutdown of a generating unit. The grant of defendant’s motion for summary judgment in plaintiff’s tort action was appealed to this Court. We affirmed the judgment of the superior court without opinion since under our understanding of the law at that time, defendant being actively engaged in the enterprise in which plaintiff was injured was clearly plaintiff’s statutory employer and plaintiff’s sole remedy was the recovery of workers’ compensation benefits. Such had been our consistent holding under a line of cases originating with Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (359 SE2d 700).

However, in Yoho v. Ringier of America, 263 Ga. 338 (434 SE2d 57), the Supreme Court disapproved of the “enterprise” theory and overruled our decisions in Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632, supra, and its progeny, including the recent and similar case of Falagan v. Ga. Power Co., 205 Ga. App. 531 (422 SE2d 563). Specifically, the Supreme Court held that “only a ‘contractor’ can be a statutory employer and an ‘owner’ cannot be a ‘contractor’ if the contractual obligation of performance is owed to, rather than by, him. An ‘owner’ does not attain ‘contractor’ status under OCGA § 34-9-8 (a) by his active involvement in the enterprise, but only ‘ “in the isolated situation where (he) also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.” (Cit.)’ (Emphasis supplied.) Manning v. Ga. Power Co., [252 Ga. 404, 406 (314 SE2d 432)].” Yoho v. Ringier of America, 263 Ga. 338, 341, supra.

A writ of certiorari was granted by the Supreme Court in the case sub judice. Our judgment was vacated and the case was remanded for reconsideration in the light of Yoho v. Ringier of America, 263 Ga. 338, supra.

Upon return of the case to this Court, defendant maintains that it is a contractor within the meaning of OCGA § 34-9-8 (a) as illuminated by Yoho v. Ringier of America, 263 Ga. 338, supra. Defendant maintains that it was literally serving as a contractor for yet another entity, its customers.

In this connection, defendant points out that it has numerous contracts to supply electric power to consumers and intermediate distributors. Although no evidence was developed on this point below, we may take judicial notice of this fact which is general knowledge within this state. It is also true that such contracts would necessarily obligate defendant to obtain and maintain the generating capacity to provide this electricity. The crux of defendant’s argument is that the contract with plaintiff’s employer was the equivalent of subcontracting a portion of the power generating function implicit in its service contracts.

This brings us to a final issue arising from the decision in Gray Building Systems v. Trine, 260 Ga. 252, 253 (391 SE2d 764). This recent Supreme Court decision, which was not cited in the Yoho decision, states that a mere contract for the sale of goods does not make the seller a “contractor” under OCGA § 34-9-8 unless the contract to sell is accompanied by an undertaking to render substantial services in connection with the goods sold. While defendant, in the case sub judice, presents a multi-faceted argument that indeed it does provide such services and that such is intrinsic to any undertaking to provide electric power, this supposition is not readily apparent to this Court nor supported by the record in the case sub judice. Indeed, it is quite understandable that the record created below in anticipation of the application of the “enterprise” theory overruled in Yoho v. Ringier of America, 263 Ga. 338, supra, is lacking when called upon to support defendant’s new theory developed following remand of the case from the Supreme Court. Nonetheless, since there are genuine issues of material facts remaining in the case sub judice, the grant of summary judgment in favor of defendant and against plaintiff was error.

Decided January 20, 1994.

Smith, Gambrell & Russell, Glen P. Brock III, David A. Handley, for appellant.

Jones, Cork & Miller, H. Jerome Strickland, H. J. Strickland, Jr., Moore & Mangum, Joab 0. Mangum III, for appellees.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A93A2028, A93A2029, A93A2293, A93A2294.
    PRUETT et al. v. COMMERCIAL BANK OF GEORGIA (four cases).
    (440 SE2d 85)
   Andrews, Judge.

Case Nos. A93A2028 and A93A2029

This is the second appearance of this dispute before us. The first appearance was in Pruett v. Commercial Bank of Ga., 206 Ga. App. 103 (424 SE2d 284) (1992). In that case, Pruett and Groover, appellants here, appealed an order granting summary judgment in favor of Commercial Bank on a $7,000 promissory note and a personal guarantee executed by appellants on a real estate note in the principal amount of $2,100,000. The trial court had entered judgment for $9,208.41 on the promissory note and $2,753,208.02 on the personal guarantee.

The two matters were consolidated into one case before the trial court and handled as one case by this court. We determined that there were no factual issues with regard to the execution of the notes, default thereon, and interest due as of May 1991. Nevertheless, we determined that factual issues precluding summary judgment existed as to interest accrued after May 31, 1991, and the award of attorney fees on both notes. This court therefore affirmed in part, and reversed in part the trial court’s grant of summary judgment.

Following the remittitur to the trial court, the court entered separate orders regarding, the two different matters. In Case No. A93A2028, regarding the $7,000 promissory note, the trial court entered judgment in the amount of $7,000 for the principal, $1,140.43 for the interest through May 31, 1991, and $96 in costs — for a total of $8,236.43. The trial court’s order stated that it was entering final judgment as to those amounts affirmed by the Court of Appeals. It further stated that “those portions of the Court’s previous judgment of November 25,1991 that were reversed on appeal remain pending in this Court and are not affected by this Order and Judgment.”

Similarly, upon remittitur in Case No. A93A2029, regarding the $2,100,000 personal guarantee, the court entered final judgment as to the portions of its previous award which were affirmed by this court on appeal. The court stated that Commercial Bank was entitled to the principal amount of $2,100,000; $209,708.33 for interest through May 31; and $124 in costs. Again the court stated, “those portions of the Court’s previous judgment of November 19, 1991 that were reversed on appeal remain pending in this Court, and are not affected by this Order and Judgment.”

Here, citing Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160 (435 SE2d 520) (1993), appellants argue that our prior decision was erroneous and that the trial court’s grant of summary judgment should have been reversed in full since the evidence regarding all of the amounts due was insufficient. Accordingly, appellants claim that the instant orders appealed, which were premised on this court’s previous decision, were erroneously entered.

These arguments are improper since they seek to relitigate matters which have already been determined by this court. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40. OCGA § 9-12-42 states that “[f]or a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.” See generally Roberts v. Porter, Davis, etc., 193 Ga. App. 898, 900 (1) (389 SE2d 361) (1989). The matters raised here are the same matters raised in the previous appeal of this case, and concern the same parties; thus the former judgment bars this action. Because of this conclusion, we will not address the jurisdictional question raised in Case No. A93A2028 by Commercial Bank regarding the fact that after the court entered separate orders in the previously consolidated cases, the $10,000 threshold amount was not reached.

Commercial Bank’s motion for fees for frivolous litigation is denied.

Case Nos. A93A2293 and A93A2294

In these cases, Pruett and Groover have filed two direct appeals regarding the trial court’s June 14, 1993 orders in Case Nos. A93A2028 and A93A2029, which required them to post supersedeas bonds pursuant to OCGA § 5-6-46. In Case No. A93A2028, bond was set in the amount of $10,000 and in Case No. A93A2029, $2,000,000 bond was ordered. The appeals in the underlying cases were docketed on June 30, 1993.

Decided January 21, 1994.

The Nodvin Firm, Marvin P. Nodvin, David W. McLeod, for appellants.

Frankel, Hardwick, Tanenbaum & Fink, James J. Brissette, for appellee.

Commercial Bank filed a motion to dismiss these appeals on the basis that an order requiring a supersedeas bond is not a final, appealable one within the meaning of OCGA § 5-6-34. Without addressing the broad question of the general appealability of an order granting a supersedeas bond, we agree. In the instant matter, although the trial court certified as final the orders in Case Nos. A93A2028 and A93A2029 pursuant to OCGA § 9-11-54 (b), no such finality was indicated on the orders regarding the bonds. Since there are still matters pending in the cases, clearly the orders granting the bonds are not final and thus, not subject to direct appeal.

Case Nos. A93A2028 and A93A2029 affirmed. Case Nos. A93A2293 and A93A2294 dismissed.

Birdsong, P. J., and Blackburn, J., concur. Pope, C. J., not participating.


text:
    A93A1833.
    WHITE v. THE STATE.
    (440 SE2d 68)
   Blackburn, Judge.

Appellant Willard Frank White was convicted of rape, aggravated sodomy, and two counts of child molestation, all involving his granddaughter who was two-and-one-half years old at the time of the incidents. White appeals his conviction alleging several errors committed by the trial court.

1. In his first enumeration of error, White contends that the trial court erred in admitting the victim’s hearsay statements in the absence of a hearing to ascertain whether sufficient indicia of reliability for admission pursuant to OCGA § 24-3-16 existed. We have previously determined that a hearing to determine indicia of reliability need not be held prior to receiving the testimony; it is enough if the record contains sufficient evidence to support such a finding. Gregg v. State, 201 Ga. App. 238 (3) (411 SE2d 65) (1991). The factors considered when determining whether sufficient indicia of reliability are present include, but are not limited to the following: “(1) the atmosphere and circumstances under which the statement was made (in-eluding the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other, third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.” Id. at 240. See also Tucker v. State, 208 Ga. App. 441 (430 SE2d 811) (1993); Smith v. State, 207 Ga. App. 55 (427 SE2d 48) (1993); Peters v. State, 206 Ga. App. 143 (424 SE2d 372) (1992).

Our review of the record, including the transcript of the interview of the victim by the social service specialist, indicates that the victim’s statements, introduced through hearsay at trial, were made originally by the victim in a spontaneous manner without apparent coaching. Although there was evidence presented that the victim had originally named other possible perpetrators, her later statements consistently named the defendant. We find that a sufficient showing of indicia of reliability, as required by OCGA § 24-3-16, was established as to all out-of-court statements made by the victim and testified to by witnesses at trial.

2. In White’s second enumeration of error, he first contends that the testimony of his wife violated “the right of a criminal defendant’s spouse not to testify against him,” as authorized by OCGA § 24-9-23. Prior to the start of the trial, the trial court informed Christine Yates White, the defendant’s wife, of her right not to testify, and originally, she declined to testify. The trial court indicated that if she did testify, the State would be allowed a thorough cross-examination. However, during White’s case, she was called as a defense witness and she voluntarily testified. The State then was allowed a thorough cross-examination. “When the witness voluntarily takes the stand and testifies, it is presumed that this act is done pursuant to a waiver of [the witness’] privilege. [Cit.]” Mapp v. State, 191 Ga. App. 622 (2) (382 SE2d 618) (1989).

3. White next argues that his wife’s testimony violated his right of marital communications privilege pursuant to OCGA § 24-9-21 (1). Subject to certain limited exceptions, the general rule in Georgia is that a privilege inures to the communicator for all communications made to a spouse for all consensual marital acts of a personal nature involving married persons, where the communication or act results from a reliance upon the confidential relationship of husband and wife. McCord v. McCord, 140 Ga. 170 (78 SE 833) (1913); Ga. Intl. Life Ins. Co. v. Boney, 139 Ga. App. 575 (228 SE2d 731) (1976). During the trial, White asserted his privilege to prohibit his wife from admitting that they had engaged in consensual anal intercourse together on a regular basis.

Historically, the privilege evolved to promote marital harmony where facts were disclosed within the privacy of the marital relationship. Stanford v. Murphy, 63 Ga. 410, 416 (1879) (any knowledge acquired by the wife based on the trust confided in her by her husband should be excluded); Jackson v. Jackson, 40 Ga. 150 (1869) (a wife is not allowed to testify as to any fact which came to her knowledge by reason of the confidential relation of husband and wife).

This court recognized that an act is a privileged communication where “the act is as much a communication as would be [the] words . . . describing the act.” Ga. Intl. Life Ins. Co. v. Boney, supra. In Boney, we held that “[a]ny conversation or act performed by [the husband] which is attributable to the husband-wife relation, i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation, is privileged.” Id. at 579. We then enumerated several exceptions including: (1) conversations through or with third parties; (2) instances where the communication is actionable by one spouse against the other; and (3) impersonal communications or actions performed without regard for the special confidence between spouses in the marital relation. Id.

In Brown v. State, 199 Ga. App. 188 (404 SE2d 469) (1991), we held that the defendant’s act of stealing cocaine in his wife’s view was not a confidential communication within the privilege. We determined that Brown’s act could have been committed in disregard or indifference to her presence. Id. at 189. Obviously, White’s wife’s knowledge of the fact that White engaged in anal intercourse was acquired by virtue of her voluntary participation therein, resulting from a reliance by the participants upon the confidential marital relationship. Cf. Chancey v. State, 256 Ga. 415, 436-437 (349 SE2d 717) (1986); Ga. Intl. Life Ins. Co. v. Boney, supra. In the case before us, White’s acts necessarily depended upon his wife’s presence and participation in the disclosed acts. Therefore, our opinion in Brown is inapplicable to the facts of the present case. Additionally, the Brown opinion presents a physical precedent only. See Court of Appeals Rule 35 (b).

White was entitled to have the testimony of his wife herein involved excluded based upon his marital privilege as provided by OCGA § 24-9-21, as proper objection was made at trial. Although under certain circumstances, the marital privilege may be waived by the communicator, the act of calling his wife as a defense witness did not, in and of itself, waive his privilege regarding protected confidential communications as the direct examination did not in any way touch on the privileged matters or open the door thereto. The wife’s testimony as to non-privileged matters did not constitute a waiver of his privilege. The trial court committed harmful error in allowing the subject testimony into evidence. The fact that the testimony on cross-examination was offered as similar transaction evidence does not divest White of his marital privilege. See Gorman v. State, 183 Ga. 307 (1936); Keaton v. McGwier, 24 Ga. 217 (1858) (where the husband has been examined, the testimony of the wife is not admissible to discredit him by proving marital facts, a knowledge of which she acquired by reason of the relationship).

Decided January 11, 1994

Reconsideration denied January 24, 1994

Robert D. Pope, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

Although the evidence properly admitted in the case was sufficient to support the verdict, the unnecessary injection of the harmful “marital privilege” testimony requires reversal of this case.

4. In his last enumeration of error, White argues that the trial court erred in failing to grant a mistrial after his character was impermissibly placed in evidence. White’s counsel moved for a mistrial after a State’s witness mentioned that White had been in jail at a point in time prior to the present charges. The trial court denied the motion and instructed the jury to absolutely disregard the remarks and admonished the District Attorney. The trial court further stated: “I’m instructing you not to get into that again, and if you cannot disregard the remarks about being in jail, that has nothing to do with this case, that man sits over there with a clean record, and if you can’t move it out of your mind, tell me right now. All right, everybody seems to be able to.” Thereafter, White’s counsel did not renew his motion or object to the curative instructions. Therefore, his right to appellate review was waived. Leary v. State, 206 Ga. App. 191 (424 SE2d 903) (1992).

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.

       While White does not enumerate as error the appropriateness of the evidence as a “similar transaction,” it would not appear that consensual sexual acts between married persons would constitute similar transactions to sexual child molestation, the only thing similar being the anatomical parts involved.


text:
    A93A1793
    KENT v. PETERS.
    (440 SE2d 87)
   Smith, Judge.

This personal injury action arises out of an intersection collision between a car driven by defendant Peters and one driven by plaintiff Kent’s husband. Kent was a passenger in her husband’s car. On the trial of the case, the jury returned a verdict in favor of defendant. Plaintiff’s motion for new trial was denied, and she appeals.

1. Kent first enumerates as error the general grounds. “The jury verdict has the approval of the trial judge, and after verdict the evidence is to be construed in the light most favorable to the prevailing party and every presumption and inference is in favor of sustaining the verdict. And, if there is any evidence to sustain the verdict of the jury, an appellate court will not disturb it.” (Citations and punctuation omitted.) Nolen v. Murray Indus., 165 Ga. App. 785, 786 (1) (302 SE2d 689) (1983). By returning a general verdict in favor of Peters, the jury necessarily concluded either that Peters was not negligent or, if she was, that Kent did not sustain an injury as a result of her negligence. Assuming without deciding that the evidence demanded a finding of negligence on the part of Peters, a review of the trial transcript shows evidence from which the jury was authorized to conclude that Kent was not injured as a result of the collision.

In this case, some time intervened before Kent consulted a physician. Approximately one month passed before she went to the hospital emergency room, two to three months before she consulted an orthopedist, and almost three years before she consulted a neurological surgeon. There was testimony from Kent’s treating physicians that their diagnoses depended upon Kent’s subjective complaints of pain, that she “had a normal examination,” with no objective signs of a neurological problem, and that there were other possible causes of her symptoms. Kent’s physicians also disagreed as to the nature of her injuries. There was also evidence from which the jury could conclude that Kent gave incomplete or inconsistent medical histories to one or more of her physicians, and that there was inconsistent evidence regarding, for example, her statements at the scene of the accident and her description of her symptoms.

Kent’s reliance on Cochran v. Lynch, 126 Ga. App. 866 (192 SE2d 165) (1972) is misplaced. “ ‘The distinction lies in the fact that in Cochran only the plaintiff and her doctor testified as to the extent of her injuries and their testimony was contradicted by neither testimony nor circumstances. In other words, the evidence there demanded a finding that the plaintiff was injured tó some extent; if she was injured the causal chain was unbroken. Here (appellant) is indeed injured but the question is whether she was injured by the collision. Opposing medical testimony and the intervening time support the negative inferences which the jury must have drawn from the evidence, and this alone is enough to preclude this court from reversing.’ . . . [Cit.] In light of this and additional evidence adduced by appellee regarding the source of appellant’s injuries, it cannot be said that the jury arbitrarily discounted the testimony of appellant or the opinion of her expert [s]. Accordingly, the general grounds have no merit. [Cit.]” (Emphasis in original.) Purvis v. Toole, 207 Ga. App. 189 (1) (427 SE2d 565) (1993).

2. Kent also contends the trial court erred in disqualifying her husband as her trial counsel. Kent’s husband was driving the car at the time of the collision. Moreover, his deposition was taken before the motion to disqualify was filed, and his testimony at that deposition bore directly on the issues of Peters’s negligence and his wife’s injuries. He testified as plaintiff’s first witness at trial and was cross-examined on several disputed points.

“The ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge. Our review of the record reveals no abuse of discretion in granting appellee’s motion to disqualify appellants’ counsel. [Cit.]” (Citations and punctuation omitted.) Clos v. Pugia, 204 Ga. App. 843, 845 (1) (420 SE2d 774) (1992). Under the circumstances presented here, it is clear that Kent’s husband was a material witness. Accordingly, the trial court did not err in granting the motion to disqualify him as counsel. Cherry v. Coast House, Ltd., 257 Ga. 403, 405 (3) (359 SE2d 904) (1987); McCabe v. Lundell, 199 Ga. App. 639, 641 (3) (405 SE2d 693) (1991).

3. Kent’s final enumeration of error challenges a portion of the trial court’s charge on causation of injuries. The charge complained of was as follows: “I further charge you that medical evidence showing only a possibility of a causal relationship between the accident and the injuries alleged is not by itself sufficient to establish such relation unless there is other evidence which taken in conjunction with the medical evidence establishes that the injuries alleged . . . naturally and probably result from the accident in question.”

The substance of the charge is taken from Nat. Dairy Prod. Corp. v. Durham, 115 Ga. App. 420, 423 (154 SE2d 752) (1967). The trial court also charged on proximate cause and exacerbation of preexisting injury, direct evidence and credibility and believability of witnesses. Given the evidence as outlined in Division 1, and taken as a whole, Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602 (2) (a) (402 SE2d 304) (1991), the charge was an accurate statement of the law, was adjusted to the evidence, and was not confusing to the jury.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided January 24, 1994.

Peter G. Williams, for appellant.

Divine, Wilkin, Raulerson & Fields, Richard W. Fields, for appellee.


text:
    A93A2099.
    SUBSEQUENT INJURY TRUST FUND v. HANSON INDUSTRIES et al.
    (440 SE2d 89)
   Johnson, Judge.

We granted this discretionary appeal to determine whether the trial court erred in affirming the determination of the Workers’ Compensation Board that a worker’s pre-existing permanent impairment constitutes a “first injury” such that when a compensable event merges with the pre-existing condition, reimbursement for excess liability from the Subsequent Injury Trust Fund is appropriate.

Annie Foster worked for Hanson Industries, d/b/a Georgia Boot, Inc., for over 20 years. Her employers had known of her health problems, specifically a circulation problem characterized as a venous insufficiency, for at least 15 years. Periodically, because of her condition, Foster took health-related leaves of absence from her work, during which she did not receive her salary, but maintained her company benefits. She had also received workers’ compensation benefits from time to time. Because of her circulatory problems Foster was allowed to transfer from her sewing job, which required her to stand throughout her shift, to a position on the production line applying waterproofing between the welt and the sole of boots. This position allowed her significantly more freedom of movement as the job could be performed from either a standing or seated position.

In June 1989, Foster contracted a bacterial infection which required hospitalization. It is stipulated that the onset of the infection was facilitated and exacerbated by her poor circulation. She was unable to return to work. In reviewing Foster’s claim for workers’ compensation benefits, an administrative law judge found that Foster had suffered a compensable accident because her work duties aggravated her condition causing a disability. This decision was affirmed by the State Board of Workers’ Compensation and by the Superior Court of Union County. The employer/insurer then filed a Notice of Claim seeking reimbursement from the Subsequent Injury Trust Fund. The fund denied the request indicating that Foster had not suffered a “subsequent injury” as required by the Act. The employer/insurer requested a hearing pursuant to OCGA § 34-9-363 (b) to review the fúnd’s denial of liability. The parties waived a formal hearing and submitted a set of stipulated facts and the deposition of Foster’s supervisor as the record for review.

The ALJ found that the pre-existing condition, Foster’s venous insufficiency, was permanent in nature and likely to cause a hindrance or obstacle to employment. Further, the judge concluded, the employer had knowledge of the impairment and reached an informed conclusion that it was permanent and likely to cause a hindrance or obstacle to employment. Finally, the judge held that there was a merger between the pre-existing permanent impairment and the compensable “accident” resulting in a claim which required reimbursement from the fund. JPS Carpets v. Troupe, 203 Ga. App. 602 (417 SE2d 333) (1992). The board adopted the findings and holding of the ALJ. The superior court again affirmed the board.

The fund asks us to consider, in this case of first impression, whether in a progressive disease case, a claimant who incurs a fictional “injury” on her last day of work also incurs a fictional “subsequent injury” thereby entitling the claimant’s employer/insurer to reimbursement from the fund. At the outset we note that this is not a classic progressive disease case, i.e., one in which the worker’s condition deteriorates until he is no longer able to work. Therefore, we believe that the fund’s reliance on cases such as Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (338 SE2d 742) (1985), and Central State Hosp. v. James, 147 Ga. App. 308 (248 SE2d 678) (1978), is misplaced. Those cases consider the issue of new accident versus change in condition in various contexts, i.e., for the purpose of determining the statute of limitation. While we recognize certain similarities, that model cannot be molded to fit the specific issue presently before us, reimbursement by the fund in the context of OCGA § 34-9-350 et seq. Furthermore, the fund’s characterization of injuries as fictional is misleading, particularly in light of its own concession that Foster suffered a compensable injury on her last day of work. Accordingly, we choose to rephrase the question before us as follows: The fund asks us to consider, in this case of first impression, whether the fund is liable for excess liability to an employer/insured when a worker with a preexisting permanent impairment is injured on the job. The fund argues that Foster had only one injury, the bacterial infection, and that the injury occurred on her last day of work. Since the bacterial infection was her first injury, the fund argues, it could not be compensable as a subsequent injury.

The purpose of the fund is set forth in OCGA § 34-9-350: “[T]o encourage the employment of the handicapped by protecting employers from excess liability for compensation when an injury to a handicapped worker merges with a preexisting permanent impairment to cause a greater disability than would have resulted from the subsequent injury alone.”

Decided January 24, 1994.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, K. Prabhaker Reddy, Assistant Attorney General, Dana E. McDonald, for appellant.

Saveli & Williams, John M. Williams, Jennifer H. Chapin, Mark S. Gannon, Harris, Hartman, Aaron, Wharton & Boyd, William G. Boyd, for appellees.

OCGA § 34-9-351 (2) defines permanent impairment as “any permanent condition due to previous injury, disease, or disorder which is, or is likely to be, a hindrance or obstacle to employment or to obtaining reemployment if the employee should become unemployed.” A list of conditions which the legislature has deemed to presumptively create a hindrance or obstacle to employment is set forth in OCGA § 34-9-361. Included in that list is cardiovascular disorders. OCGA § 34-9-361 (10).

It is clear from a reading of OCGA § 34-9-350 that the first “injury” in subsequent injury cases is satisfied by the existence of a permanent impairment. The language of the statute reflects the legislature’s intent that the fund provide reimbursement when a life-long condition merges with a compensable injury. Foster’s condition was described by her physician as a cardiovascular disorder, and it is undisputed that it constituted a pre-existing permanent impairment as contemplated by OCGA § 34-9-350 and qualifies presumptively as a pre-existing permanent impairment under OCGA § 34-9-361.

The fund’s argument would require that a worker with a pre-existing permanent impairment be injured twice on the job before reimbursement would be triggered. This is simply not consistent either with the remedial nature of workers’ compensation statutes generally or the specific purpose of the Subsequent Injury Trust Fund as stated in the statute, to promote employment of handicapped workers. See generally Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 704-705 (409 SE2d 254) (1991). Therefore, we hold for purposes of reimbursement under the Subsequent Injury Trust Fund, that the employee’s pre-existing permanent impairment, as contemplated by OCGA § 34-9-361, constitutes the first injury, such that any compensable injury to a handicapped worker which merges with the pre-existing permanent impairment causing a greater disability than would have resulted from the compensable injury alone, which creates excess liability shall be reimbursable from the fund.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2370.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. HAND et al.
    (440 SE2d 92)
   Blackburn, Judge.

The appellee, Tina Hand, was involved in an automobile collision on November 21, 1991. When she was sued for damages by the other parties involved in that collision, Georgia Farm Bureau Mutual Insurance Company, Hand’s alleged automobile liability insurance carrier, filed an answer on her behalf. However, Georgia Farm Bureau subsequently sought declaratory judgment that no coverage existed, on the ground that the liability policy issued to Hand had expired prior to the collision. The trial court granted summary judgment for Hand and denied such for Georgia Farm Bureau, and this appeal followed.

The record shows that Hand first insured a 1978 Chevrolet automobile with Georgia Farm Bureau in May 1991, for a policy period that expired on November 13, 1991. Hand did not pay the renewal premium for the policy by that date. Georgia Farm Bureau attempted to mail Hand a renewal declaration and premium bill prior to that expiration, but Hand had not received it because she had never reported an earlier change of address. The local Georgia Farm Bureau agent received the cancellation notice on Hand’s policy on November 21, 1991, but that notice was not placed with her file until a few days later.

On November 18, 1991, Hand replaced her car with a 1984 Chevrolet Chevette. She called the local agent’s office on multiple occasions regarding that change, but the frequency, dates, and contents of those telephone contacts are disputed. Hand claimed that she first called the agent’s office on the day she bought the car, requesting that coverage under her policy be transferred to the new car and that collision coverage be added as required by the lienholder. She also recalled expressing some concern that her policy was due for renewal and inquiring whether she should bring some money to the agent’s office at that time. Rather than being informed that her policy had expired, she was instructed to call back with the serial number of the new vehicle and was told that she would be billed for the additional coverage. Georgia Farm Bureau asserted that this initial contact occurred on November 20, 1991.

Hand further claimed that she called the local agent’s office again on November 20 and 21, 1991, providing the serial number of the replacement car, her correct address, and to make sure that she did not need to make immediate payment of a premium. On November 21, 1991, she was assured that her automobile was covered, and that evening, the automobile collision occurred.

When Hand reported the incident to Georgia Farm Bureau, she was instructed to obtain three estimates of the damages to her vehicle. On November 25, 1991, a claims adjuster presented her with a check as payment of the claim, but retrieved the check from her later that same day when the local agent realized that Hand’s policy was expired. On December 3, 1991, Georgia Farm Bureau mailed Hand a renewal declaration and premium bill concerning her previous car, with a policy term from November 13, 1991, to May 13, 1992. The bill, however, provided that the policy would expire if payment of the premium was not received by November 13, 1991, and Georgia Farm Bureau refused Hand’s subsequent tender of payment under that renewal declaration.

As noted by the trial court, Georgia Farm Bureau’s motion for summary judgment was predicated upon Hand’s insurance policy having expired on November 13, 1991, due to her nonpayment of the renewal premium. Hand’s motion for summary judgment asserted that the acts of Georgia Farm Bureau’s agents bound the insurer to extend insurance coverage for the incident.

The trial court further noted that under OCGA § 33-24-45 (f), if an insured does not pay a renewal premium, the insurer is not required to send written notice of cancellation or non-renewal, and then found that Hand’s policy of insurance with Georgia Farm Bureau had expired as maintained by the latter. However, the trial court found that an oral binder for a new policy was created during the telephone contacts between Hand and the local Georgia Farm Bureau agent.

On appeal, Georgia Farm Bureau contends that the trial court improperly considered whether a new policy was created, because this case only involved the issue of whether coverage existed under Hand’s expired policy. We agree.

“Whether a renewal creates a new contract, or extends the original contract, depends primarily on the intention of the parties. [Cit.]” Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 838 (413 SE2d 430) (1992). “In discovering the intent of the parties, the whole instrument should be considered together, along with the surrounding circumstances. [Cit.]” Id.

In the instant case, it was uncontroverted that prior to Hand’s contact with the local agent’s office regarding her acquisition of the replacement car, Georgia Farm Bureau had unsuccessfully attempted to mail her a renewal declaration and premium bill. When Hand reported her purchase of the new car, she specifically requested that her insurance coverage be transferred from her former vehicle to the new car. At that time, she also requested additional coverage on the car, as required by the lienholder, and she was told that she would be billed for the additional coverage. The material mailed by Georgia Farm Bureau to Hand on December 3, 1991, consisted of a renewal declaration and premium bill which identified her former automobile as the insured vehicle.

Further, in its petition for declaratory judgment, Georgia Farm Bureau specifically asserted that Hand contended that she was afforded coverage under her expired policy, and in her answer Hand admitted that averment. As such, that fact is established as an admission in judicio and is binding upon Hand because the admission was never withdrawn. Jabaley v. Jabaley, 208 Ga. App. 179 (430 SE2d 119) (1993).

The above circumstances and documentary evidence are consistent with only one conclusion, i.e., that a report of a change under the policy issued in May 1991, and renewal of that policy, were contemplated, and not an application for a new policy. Accordingly, the trial court incorrectly proceeded to determine that an oral binder for a new policy was created, and erred in granting summary judgment for Hand on that basis. However, it does not follow that Georgia Farm Bureau was entitled to summary judgment.

In contending that the trial court should have granted summary judgment for it, Georgia Farm Bureau relies upon Prescott’s Altama Datsun v. Monarch Ins. Co. of Ohio, 170 Ga. App. 545 (317 SE2d 845) (1984), wherein this court held that the doctrines of waiver and estoppel may not extend coverage under a liability insurance policy that expired prior to the occurrence of the claimed accident. However, on certiorari, the Supreme Court declined “to adopt the proposition of law that although policy conditions and limitations may be waived, the defense of noncoverage can never be waived.” Prescott’s Altama Datsun v. Monarch Ins. Co. of Ohio, 253 Ga. 317, 318 (319 SE2d 445) (1984).

In the instant case, although the evidence was conflicting as to what was discussed by Hand and the employees of the local agent’s office during their various telephone contacts, Hand testified in her deposition that before the automobile collision, she expressed concern that her premium was due and asked whether she should bring some money to the agent’s office, and that she was assured that she was covered and that she would be billed for the premium. Also, despite the fact that the renewal declaration sent to Hand on December 3, 1991, provided that there was no grace period for late payment of the renewal premium, a subsequent letter written to Hand’s attorney explaining the denial of coverage indicates that Georgia Farm Bureau had discretion to reinstate an insurance policy within ten days of the renewal date.

The above evidence was sufficient to raise an issue of fact as to whether Georgia Farm Bureau waived the expiration of the policy that otherwise resulted from the nonpayment of the renewal premium by November 13, 1991. Cf. Morgan v. Ga. Gen. Ins. Co., 210 Ga. App. 614 (436 SE2d 782) (1993). For that reason, the trial court was correct in denying Georgia Farm Bureau’s motion for summary judgment.

Decided January 24, 1994.

Dunaway & Wallace, Roger W. Dunaway, Jr., for appellant.

Jimmy D. Plunkett, for appellees.

Bobby Roberts, Sondra Roberts, pro se.

Judgment affirmed in part, reversed in part.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2607.
    In the Interest of M. D. S. et al., children.
    (440 SE2d 95)
   McMurray, Presiding Judge.

The Department of Family & Children Services (“DFCS”) filed a deprivation petition in the Juvenile Court of Charlton County seeking temporary custody of the minor children, M. D. S. and S. N. S., alleging that the children were abandoned by their parents and that the children have been under the care of their paternal grandmother since September 1992. It is also alleged in complaints filed contemporaneously with the deprivation petition that the parents neglected the children.

The juvenile court conducted a temporary hearing on the day the deprivation petition was filed and concluded “that the minor children are presently deprived children and that said deprivation is likely to continue should the minor children be returned to the natural mother.” The juvenile court ordered “that the minor children ... remain in the temporary legal custody of [DFCS] and that the physical custody of the minor children . . . remain with the paternal grandmother . . . pending an adjudicatory hearing. . . .”

After an adjudicatory hearing, the juvenile court entered an order finding that the children’s parents reside in California; “[t]hat the minor children have been residing with their paternal grandmother . . . since September, 1992[; that] the [paternal grandmother], and her family, reside [in] Charlton County, Georgia[; that] the minor children were delivered to the residence of their paternal grandmother, in September, 1992, by the natural father after the natural parents, who were, and who remain separated, determined that they could not care and provide for the minor children [; that] when the minor children, who had been residing with their natural mother prior to the time of their arrival in the State of Georgia arrived at the home of their paternal grandmother, they displayed symptoms of malnourishment and symptoms of neglect and abuse [; that] the symptoms of malnourishment and symptoms of neglect and abuse were observed by a treating physician . . . after being delivered to their paternal grandmother’s residence in September, 1992[; that] the minor children’s symptoms [of] malnourishment and symptoms of neglect and abuse occurred over a period of months prior to their arrival in . . . Charlton County, Georgia[; that] the paternal grandmother has provided care, support, and control for the minor children since they have been in her home and the minor children’s symptoms of malnourishment, neglect and abuse have improved significantly since they have been in [the paternal grandmother’s] home[; that] the natural father is presently unable to financially provide for the minor children [; that] the natural mother would leave the minor children in the care of the natural father while she was out with her friends [; that] the natural mother, while still married to [the natural father], has been, and continues to be, involved in an intimate relationship with another man[; that neither] of the natural parents have filed for divorce [; that] the natural mother has a history of leaving her minor children in the home of [the paternal grandmother] for extended periods of time, providing very little, if any, monies for their support or the payment of medical bills [; that] the minor children have been placed and remain in counseling and it would be disruptive to their well being and their progress or rehabilitation to move them out of their present environment]; that] the natural mother and natural father have not shown a mature and responsible attitude and concern for the health, care and well being of the minor children [and that] the home of the paternal grandmother has been a secure, safe, and caring home for the minor children and they continue to show progress there.”

The juvenile court concluded that the children are deprived; that said deprivation is likely to continue if custody of the children is returned to the natural mother; that custody of the children with the natural mother is contrary to the welfare of the children and that reasonable efforts have been made by DFCS to prevent or eliminate the need for removal and to make it possible for the children to return home. The juvenile court then awarded DFCS temporary custody of the children for a period of 18 months, beginning April 6, 1993, and held that “the natural parents may visit with the minor children upon such terms and conditions as [DFCS] in its discretion may allow.”

The natural mother filed an application for discretionary appeal and this court granted an appeal based on the third enumeration of error of the natural mother’s discretionary application regarding the apparent failure of DFCS to enter a plan for family reunification as required by OCGA § 15-11-41 (c) and the juvenile court’s failure to enter findings of fact regarding DFCS’ efforts for family reunification as required by OCGA § 15-11-41 (b). This appeal followed. Held:

1. The natural mother has not now enumerated the issues asserted in the third enumeration of her application for discretionary appeal and, as a consequence, this court is without jurisdiction to consider the issues raised therein. In the Interest of K. L. L., 204 Ga. App. 320, 321 (1) (419 SE2d 312).

2. The natural mother first contends the absence of an endorsement on the deprivation petition that the filing of the petition is in the best interest of the public and the children as is required by OCGA § 15-11-23 is fatal to the juvenile court’s jurisdiction. This contention is without merit. The temporary hearing conducted on the day the deprivation petition was filed substantially complies with the endorsement requirements of OCGA § 15-11-23. J. G. B. v. State of Ga., 136 Ga. App. 75, 78 (4) (220 SE2d 79).

3. The natural mother challenges the sufficiency of the evidence.

“ ‘ “The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost.” (Cit.) “The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Cit.) . . . (Cit.)’ In the Interest of S. K. L., [199 Ga. App. 731, 734 (1) (405 SE2d 903)].” In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344). From this perspective, we recognize that “the juvenile court may evaluate the evidence concerning the conditions in which the children would be raised if they were placed in [the natural mother’s custody] to ascertain whether deprivation is likely to occur in the future. Jones v. Dept. of Human Resources, 155 Ga. App. 371-372 (271 SE2d 27) (1980).’’ In the Interest of J. L. M., 204 Ga. App. 46 (1), 48 (418 SE2d 415).

In the case sub judice, DFCS presented evidence that the children were malnourished when they arrived at the paternal grandmother’s home in September 1992; that the natural mother has not consistently provided a safe and stable home environment for the children; that the natural mother has failed to visit, contact or consistently support the children since their arrival at the home of the paternal grandmother and that the children were abused (either physically or emotionally) before they came to live with the paternal grandmother. This evidence, evidence that the natural mother is “involved in an intimate relationship with another man” and the lack of evidence the natural mother is currently prepared to provide the children with minimum sustenance is sufficient to authorize the juvenile court’s finding that the children are deprived, that said deprivation is likely to continue if custody of the children is returned to the natural mother and that custody of the children with the natural mother is contrary to the welfare of the children. Consequently, the juvenile court did not err in placing the children in the temporary custody of DFCS.

Decided January 24, 1994.

W. Grady Pedrick, for appellant.

Michael J. Bowers, Attorney General, Teresa E. Lazzaroni, Staff Attorney, C. Deen Strickland, for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       The third enumeration in the natural mother’s application for appeal asserts as follows: “The Order complained of has a duration of eighteen months from April 6, 1993, but said Order makes no provision for any investigation of the home and circumstances of the natural mother of said children, your Petitioner, who is a resident of the State of California.”


text:
    A93A1729.
    MOBLEY v. THE STATE.
    (441 SE2d 73)
   McMurray, Presiding Judge.

Defendant was charged in a multi-count indictment for offenses related to the October 10, 1991, beating, robbery and kidnapping of the 70-year-old victim. Specifically, defendant was charged with robbery by intimidation (Count 1), kidnapping (Count 3), aggravated assault with a pistol (Count 2), aggravated assault in that defendant attempted to break the victim’s neck (Count 4), aggravated assault with a knife (Count 5), aggravated battery (Count 6), possession of a knife during the commission of a crime (Count 7), possession of a firearm during the commission of a crime (Count 8), possession of a firearm by a convicted felon (Count 9) and for being a recidivist. The case was tried before a jury on July 15 and 16, 1992, and defendant was found not guilty as to Counts 2, 8 and 9 regarding his use of a firearm during commission of the crimes. A mistrial was declared as to the remaining counts of the indictment.

On October 7 and 8, 1992, defendant was tried before a jury and convicted of robbery by intimidation (Count 1), kidnapping (Count 3), aggravated assault in that defendant attempted to break the victim’s neck (Count 4), aggravated assault with a knife (Count 5), aggravated battery (Count 6), possession of a knife during the commission of a crime (Count 7) and for being a recidivist. This appeal followed the denial of his motion for a new trial. Held:

1. In his first and third enumerations, defendant contends the evidence was insufficient to prove that he was the perpetrator of the crimes charged.

The victim testified and positively identified defendant as the man who entered his home on October 10, 1991, and committed acts constituting the crimes charged in Counts 1, 3, 4, 5, 6 and 7 of the indictment. This testimony and eyewitness testimony that defendant entered the victim’s premises minutes before the attack of the victim is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing the crimes charged in Counts 1, 3, 4, 5, 6 and 7 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Perryman v. State, 208 Ga. App. 754 (1) (431 SE2d 742).

2. In his second enumeration, defendant contends the trial court erred in not allowing evidence of his acquittal as to Counts 2, 8 and 9 of the indictment. Defendant cites White v. State, 257 Ga. 236 (356 SE2d 875), arguing that evidence of his acquittal on these counts of the indictment is relevant to his sole defense of misidentification. We do not agree.

In White v. State, 257 Ga. 236, supra, the Supreme Court held that evidence of the acquittal of a principal during the trial of an aider and abettor (party to the crime) is admissible because proof of the principal’s guilt is a necessary element in the crime of aiding and abetting. Id. In the case sub judice, defendant is not charged as an aider and abettor; nor is proof of defendant’s guilt as to Counts 2, 8 and 9 of the indictment necessary to sustain his convictions as to the remaining counts of the indictment. At best, defendant’s acquittal as to Counts 2, 8 and 9 charging him with use or possession of a firearm during commission of the beating, robbery and kidnapping of the victim is evidence that defendant did not use a firearm during commission of the crimes charged. Under these circumstances, we cannot say the trial court abused its discretion in finding that such proof was irrelevant to defendant’s claim of misidentification. See O’Neal v. State, 254 Ga. 1, 2 (3), 3 (325 SE2d 759).

3. Defendant contends the trial court erred in failing to grant a dismissal or acquittal after the State’s attorney waited until the day before trial to inform defense counsel that shoe prints found at the crime scene (tracked through the victim’s blood) did not match the bottom of defendant’s shoes.

“Harm as well as error must be shown to warrant a reversal. See Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991).” Bass v. State, 208 Ga. App. 859, 861 (3) (432 SE2d 602). In the case sub judice, defense counsel fully expanded evidence at trial that bloody shoe prints discovered at the crime scene did not match the bottom of defendant’s shoes. Consequently, this enumeration provides no basis for reversal.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided January 11, 1994

Reconsideration denied January 25, 1994.

Friedman, Donaldson & Phillips, Robert P. Phillips III, Todd A. Hall, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.