text:
    A98A1777.
    BLEDSOE v. THE STATE.
    (513 SE2d 768)
   Ruffin, Judge.

A jury found Robert Douglas Bledsoe guilty of being an habitual violator, driving under the influence of alcohol, driving with an unlawful alcohol level, and obstruction of an officer. On appeal, Bledsoe contends that the trial court made numerous errors with regard to the State’s cross-examination of him. For reasons discussed below, we affirm.

The record reflects that around midnight on January 29, 1996, Bledsoe and his co-defendant, Pamela Bledsoe, were involved in an automobile accident in which their car struck a mailbox in a residential neighborhood. Bledsoe, testifying on his own behalf, admitted that he had been drinking that night, but claimed that Pamela was driving the car.

Tony Allen, a resident of the neighborhood, testified that he had just gone to bed on the night in question when he heard tires squealing. Allen jumped up, pulled open his shutters, and saw that a car had collided with a mailbox across the street from his home. Seconds after he heard the crash, Allen saw Bledsoe get out of the car from the driver’s side, get back into the driver’s seat, and try to move the car from off the mailbox. Bledsoe then exited the car from the driver’s side ágain, and Pamela exited from the passenger’s side. Allen saw Bledsoe and Pamela remove beer cans from the car and put them in Allen’s yard.

Another neighbor, Wesley Hardwick, also testified that he was awakened by a loud noise, immediately jumped out of his bed, and looked through his window to see Bledsoe getting out of the vehicle from the driver’s side. Debbie Hardwick, his wife, testified that when she heard the crash, she looked from a window and saw Bledsoe getting out of the car from the driver’s side. Although they did not see the actual collision, each of these witnesses stated that there would have been no time for the Bledsoes to have changed places in the car before they looked out their windows.

Corporal Grady Bagley of the Powder Springs Police Department arrived at the scene where he found Bledsoe and Pamela walking away from the car. Both smelled strongly of alcohol and had slurred speech. Pamela told Bagley that she had been driving when she lost control to avoid hitting a dog. While Bagley was administering a field sobriety test to Pamela, Allen asked him why he was testing her, since the male had been driving. After Bagley confronted Bledsoe, Bledsoe “got angry” and stated, “when I came around the damn corner, the dog crossed in front of me from the yard going towards the fence.” Bagley arrested Bledsoe for driving under the influence of alcohol.

Bledsoe presented several witnesses who testified that he did not have a driver’s license at the time of the incident and that they never saw him drive during the time his license had been revoked. Pamela Bledsoe testified that she would not allow Bledsoe to drive her car while he did not have his driver’s license.

In several enumerations of error, Bledsoe contends that the trial court erred in allowing the State to cross-examine him with an irrelevant document which impermissibly placed his character in issue. Several months after the offenses for which he was charged in this case, Bledsoe applied for a probationary driver’s license under the habitual violator statute. The notarized application form, which was signed by Bledsoe, affirmed that “in the two years preceding date of this application, I have received no traffic citations of any type.”

On cross-examination, the prosecutor asked Bledsoe whether Corporal Bagley had given him a citation on January 29, 1996, for DUI and habitual violator, to which Bledsoe responded, ‘Yes, sir.” The State then attempted to introduce the probationary license application to show that Bledsoe had made a false statement in the affidavit by claiming that he had not received any citations. After the prosecutor asked Bledsoe, “Since that time, have you told anyone that you had not received any citations within the past two years? [,]” Bledsoe’s counsel asked for a bench conference, and the judge thereafter excused the jury for the day. The next day, Bledsoe’s counsel, outside of the jury’s presence, objected to the State’s use of the affidavit, arguing that the affidavit was not false because Bledsoe had been charged by a warrant and not by a traffic citation. Counsel also argued that whether Bledsoe had made a false affidavit several months after the accident was irrelevant, and that the State’s attempt to impeach him with it would introduce improper character testimony. The trial court allowed the State to cross-examine Bledsoe with regard to the affidavit and admitted the affidavit into evidence.

Thereafter, the State unsuccessfully tried to get Bledsoe to agree that information contained in his affidavit for a probationary license was false. When the State referred to the affidavit as a “false affidavit,” Bledsoe’s counsel objected to the form of the question, arguing that the affidavit was not false. The State asked Bledsoe, “Do you realize that by making that affidavit, you have committed another felony?” Bledsoe responded that, “It’s a true affidavit as far as I know.”

In Georgia, the State may impeach a witness in the following ways: “(1) disproving facts testified to by the witness, (2) previous contradictory statements, (3) bias, interest or corruption on the part of the witness, (4) bad character evidence by reputation or conviction of crime, (5) incapacity or lack of knowledge or opportunity to observe, and (6) absence of religious belief.” Haynes v. State, 180 Ga. App. 202, 203-204 (3) (349 SE2d 208) (1986). The State may not make “a collateral attack upon the [witness’] credibility, impeaching in nature.” Id. at 203.

On appeal, the State contends that it offered the affidavit not for impeachment purposes, but to “disprove the inherent factual assertions made by appellant and his witnesses” — i.e., that Bledsoe was not driving on the night he was arrested. This contention is disingenuous, since the State indicated at least three times at trial that it was in fact using the affidavit to impeach Bledsoe’s credibility. Moreover, the affidavit in no way shows that Bledsoe was driving on the night in question. At most, it shows that he may have lied several months after the accident as to whether he was charged with a “citation” that night. Since nothing in the affidavit implicated Bledsoe regarding the offenses with which he was charged, its only possible relevance was to show that he may have made a false statement about a collateral matter.

Decided March 8, 1999.

Robert S. Devins, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Michael S. Moody, Assistant District Attorneys, for appellee.

Nevertheless, even if the trial court erred in admitting the affidavit and allowing the State to cross-examine Bledsoe regarding it, our inquiry does not end here, for “harm as well as error must be shown to warrant a reversal.” (Punctuation omitted.) Hinton v. State, 233 Ga. App. 213, 214 (1) (504 SE2d 49) (1998). In essence, the dispute over the affidavit constituted a dispute over the meaning of the word “citation” as contained in the preprinted application form. However, given (1) the testimony of several independent eyewitnesses that Bledsoe was seen getting out of the driver’s side of the car within seconds of the collision and (2) Bledsoe’s statement to Officer Bagley at the scene that, “when I came around the damn corner, the dog crossed in front of me,” it is highly unlikely that the jury’s conclusion that Bledsoe was the driver was materially impacted by the dispute over whether Bledsoe knowingly made a false statement in the affidavit several months after the incident. It is highly probable that the jury instead relied upon the independent eyewitness testimony and the evidence of Bledsoe’s statement at the scene. Accordingly, any error in allowing the State to introduce the affidavit and question Bledsoe regarding it was harmless. See Hinton, supra.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       Any references to “Bledsoe” in the opinion refer to Robert Bledsoe.

       For the first time on appeal, Bledsoe maintains that the trial court erred in admitting this document because the State did not lay a proper foundation for its use. Since he did not raise this issue below, it is not properly before us for appellate review. See Thomas v. State, 268 Ga. 135, 138 (8) (485 SE2d 783) (1997).

       Bledsoe argues for the first time on appeal that the prosecutor’s question improperly inteijected the prosecutor’s personal belief as to his guilt. However, Bledsoe has waived his right to appellate review of this issue because he failed to object on this ground at trial. See Davis v. State, 209 Ga. App. 187, 189 (3) (433 SE2d 366) (1993).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1963.
    GRAY v. ELIAS.
    (513 SE2d 539)
   Ruffin, Judge.

Johnny Elias sued Gregory Gray for injuries sustained in an automobile collision. Gray did not answer the complaint, and admitted being in default, but requested a jury trial on the issue of damages only. The jury returned a verdict for Elias in the amount of $300,000. On appeal, Gray contends that the trial court erred in failing, sua sponte, to charge the jury on the definition of proximate cause. Because such failure did not constitute a substantial error that was harmful as a matter of law, we affirm.

Elias testified at trial that he was a deputy sheriff with the Muscogee County Sheriff’s Department. On November 4, 1994, while transporting a prisoner, his vehicle was struck from behind by a cab driven by an employee of Gray. Elias was thrown forward and backward by the impact. After the incident, Elias saw the county’s workers’ compensation doctor over a period of several weeks, although the record does not reflect the nature of these visits.

On December 28, 1994, Elias was examined by Dr. Howard Willis. Willis testified that he had previously given Elias a complete physical about three months before the collision. Willis testified that Elias did not mention any back problems at that time, although he told Dr. Willis that he had sustained some unspecified injuries while playing college football years earlier. When Dr. Willis examined Elias after the collision, Elias complained of back pain, describing it as a “burning sensation” like “heartburn on my back.” Dr. Willis testified that, at the time, he thought Elias had a low back sprain and possibly a herniated nucleus pulposus. Elias returned to see Dr. Willis on three more occasions over the next seven months, each time complaining of back pain.

Dr. Willis had an MRI scan performed on the lumbar area of Elias’ back and testified that the MRI “showed that there was no disk herniation but some arthritic changes and a disk bulge.” With respect to the disk bulge, Dr. Willis testified that the disk had “lost some of [its] cushion effect. . . [a]nd that’s usually the result of some sort of traumatic injury.” With respect to the arthritic changes, the doctor testified that there were “areas where the bone [had] been nicked or sort of eroded off from what would — would appear to be arthritic changes. Traumatic changes could do that.” He testified that the loss of disk cushioning produced the arthritic changes, resulting in an unstable joint.

On cross-examination, Dr. Willis admitted that an individual could develop a bulging disk in any number of ways, including lifting weights, leaning over the wrong way, or getting out of bed. He also admitted that an individual could develop arthritic changes in bone without any trauma. However, he believed that Elias’ injuries were caused by the collision because Elias had not complained of back problems before the collision and because it would be unusual to see such localized damage without some form of trauma or precipitating event. Willis also testified that Elias had scoliosis in the upper back, but said he had never heard of such a condition causing bulging disks or degenerative changes.

Elias testified that, before the incident, he was able to bench press 400 pounds, but that after the incident he was unable even to pick up his daughter. Several of Elias’ coworkers testified that his demeanor had changed since the collision, and that Elias was afraid prisoners would learn of his bad back and try to attack him. Gray did not present any evidence at trial.

At the close of evidence, the trial court gave the following instruction on damages: “No plaintiff may recover for injuries or disabilities which are not connected with the act or omissions of the defendant in this case. There can be no recovery for a particular plaintiff for any injury or disability which was not proximately caused by the incident in question. If you should find that, at the time of the incident, the plaintiff had any physical condition, ailment, or disease which was becoming apparent or was dormant, and if you should find that the plaintiff received an injury as a result of the accident, and that the injury resulted in any aggravation of a condition already pending, then the plaintiff could recover damages for aggravation of the preexisting condition.” Gray raised no objection to the charge.

On appeal, Gray claims that the trial court erred in failing to instruct the jury on the meaning of the term “proximate cause.” Citing Cedrone v. Beck, 74 Ga. App. 488, 491 (2) (40 SE2d 388) (1946), he contends that the court should have charged that “proximate cause is that which is nearest in order of responsible causes and which stands next in causation, not necessarily in time and place, but in causal relation.”

OCGA § 5-5-24 (a) states that “[e]xcept as otherwise provided in this Code section, in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” However, OCGA § 5-5-24 (c) states that “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” Because Gray raised no objections to the court’s charge, we will not reverse unless the failure to give Gray’s suggested charge on the definition of proximate cause constituted a substantial error that was harmful as a matter of law.

We have held that “OCGA § 5-5-24 (c) must be strictly construed to prevent emasculation of subsection (a), and that the instances in which the subsection applies are rare.” (Citation omitted.) Moore v. Sinclair, 196 Ga. App. 667, 672 (6) (396 SE2d 557) (1990). “To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.” (Punctuation omitted.) Id.

In this case, the trial court correctly instructed the jury that Elias could not recover for any injury unless the injury was proximately caused by the incident in question. The only question on appeal is whether, under the facts of this case, the court’s failure to define the term “proximate cause” resulted in such a gross injustice as to raise a question of whether Gray was denied a fair trial.

We think it did not. “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” (Punctuation omitted.) Atlanta Obstetrics &c. Group, PA. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). This case did not involve evidence of multiple, intervening, or superseding causes or other factors that can render proximate cause an elusive concept. The jury in this case was presented with evidence that Gray negligently caused the automobile collision and that Elias sustained back injuries. Faced with these facts, the jury could conclude either (1) that Elias’ injuries were in fact caused by the collision, (2) that Elias’ injuries were not in fact caused by the collision, or (3) that Elias had a preexisting condition that was aggravated by the collision. With respect to the last possibility, the jury was clearly charged that it could award damages only for the aggravation of the preexisting condition, and only if such aggravation was caused by the collision. Under each of these three scenarios, the basic inquiry was whether the collision was the cause-in-fact of Elias’ injuries, not whether such cause-in-fact was sufficiently “proximate” to impose liability. Gray has not shown how, if the jury found that the collision in fact caused Elias’ injuries or aggravated a preexisting condition, it could fail to award damages on the basis that some other cause was more proximate.

As appellate judges, we are not required to set aside our common sense; nor do we underestimate the intelligence of the jury. Under the particular facts of this case, we find it unlikely that Gray’s suggested charge — that “proximate cause is that which is nearest in order of responsible causes and which stands next in causation, not necessarily in time and place, but in causal relation” — would have so greatly increased the jury’s understanding of its duty that the failure to give such charge deprived Gray of the right to a fair trial. Although the failure to charge on the definition of proximate cause may constitute reversible error under other facts even in the absence of objection — for instance, where there are multiple causes-in-fact of an injury — Gray has failed to show how he was harmed by such failure in this case. Accordingly, we find that Gray’s failure to request such a charge or object to the charge given constituted a waiver of any right to complain on appeal. OCGA § 5-5-24 (a). See generally Branch v. Maxwell, 203 Ga. App. 553, 555-556 (5) (b) (417 SE2d 176) (1992) (affirming verdict in automobile negligence case despite trial court’s failure to define proximate cause as part of negligence charge, where charge as a whole adequately informed jury of applicable law).

Decided March 8, 1999

Sidney L. Moore, Jr., for appellant.

Charles A. Gower, for appellee.

Taft v. Taft, 209 Ga. App. 499 (433 SE2d 667) (1993) does not require a different result. In that case, we reversed the trial court due to its failure to provide a definition of proximate cause even though the appellant failed to make “a timely and proper request for a specific proximate cause charge.” Id. at 501 (2). However, unlike the present case, Taft involved evidence of multiple causes-in-fact. The plaintiff in that case was injured while attempting to corral a bull owned by the defendant. The plaintiff claimed that he could not close the gate in time because the defendant had not properly fastened the gate. Id. at 501 (1). Thus, the jury could have concluded that plaintiff’s injuries were caused either by plaintiff’s negligence in failing to close the gate or by defendant’s negligence in failing to properly fasten the gate. In the present case, by contrast, it is undisputed that the collision was caused solely by Gray’s negligence, and the only question is whether the collision was the cause-in-fact of Elias’ injuries. Moreover, Taft did not consider the effect of OCGA § 5-5-24 (a) or (c), and did not discuss whether the failure to give the suggested charge constituted a “substantial error” that was “harmful as a matter of law.” We decline to extend the holding in Taft by adopting a rule that failure to charge the definition of proximate cause always constitutes a substantial error that is harmful as a matter of law, requiring reversal even in the absence of objection.

Judgment affirmed.

Pope, P. J, and Beasley, P. J., concur.

       It is unclear why Gray admitted liability and only contested damages. Gray was added as a defendant by amendment, and the trial court apparently did not order him to answer the complaint. Therefore, it does not appear that Gray was required to answer the complaint. See Hamelberg v. Nat. Assn. of Government Employees, 221 Ga. App. 337-338 (471 SE2d 283) (1996). Nevertheless, Gray admits that the trial was contested only on the issue of damages.

       Although no transcript was made of the trial, the parties submitted narratives of what transpired to the trial court pursuant to OCGA § 5-6-41, and the court entered two separate orders resolving the conflicts between the parties’ accounts.

       Dr. Willis’ testimony was presented by way of videotaped deposition, and the transcript of the testimony is included in the record.


author: Andrews, Judge.

text:
    A98A1976.
    CARTER v. SWIFT.
    (513 SE2d 766)
   Andrews, Judge.

Neil Carter appeals from the judgment, entered after a bench trial, in favor of plaintiff Carl E. Swift on a promissory note.

Viewed with all inferences in favor of the findings of the trial court sitting as fact finder, the evidence was that Carter and Swift, both insurance agents, began discussing Carter’s purchase of part of Swift’s insurance business in the summer or fall of 1994. The two discussed his purchasing Swift’s property and casualty book of business for $30,000. In December 1994, Carter paid Swift $10,000 toward the purchase. The last week of April 1995, Carter gave Swift a check for $3,000 post dated to May 1, 1995.

Swift had his attorney prepare a proposed contract and a note reflecting the balance due of $17,000. Although Carter read the contract, he declined to sign it, claiming he did not understand it.

On May 1, 1995, although no formal agreement had been finalized, Carter wanted to remove Swift’s property and casualty files from Swift’s office to his own. Because Swift’s wife was concerned that nothing had been signed, Swift required Carter to sign Plaintiff’s Exhibit 1, a promissory note dated May 1, 1995, for $17,000 to be paid in 18 monthly payments of $900 plus one final payment of $800. Carter’s signature was witnessed by Hall, the office secretary. It is this note upon which suit was filed.

Thereafter, Plaintiff’s Exhibit 2, a contract dated May 5, 1995, was signed by Swift and Carter, also reflecting the $13,000 already paid and Carter’s promise to pay $900 per month for 19 months (a total of $17,100).

Defendant’s Exhibit 28 is another contract containing the same basic terms regarding the total amount to be paid, i.e., $13,000 down payment and $900 per month for 19 months. Attached to it is a promissory note, also dated May 1, 1995, reflecting Carter’s obligation to pay $17,000 in 18 monthly payments of $900 plus a final payment of $800. This note also bears Carter’s signature and the contract is signed by both Carter and Swift.

The only factual disagreement below was the sequence in which these documents were signed, Swift contending that Plaintiff’s Exhibit 1 was the first signed and all others were later even though some were dated May 1, and Carter contending that the note was. the last document signed in the series and that no documents were signed until after he had transferred the files.

The trial court found as fact that Plaintiff’s Exhibit 1 was the first signed of the documents; that thereafter, Carter and Swift executed an agreement dated May 5, 1995, representing the same debt as the earlier note; and that, after the May 5 agreement, Carter and Swift executed Defendant’s Exhibit 28, also dated May 1, 1995, which included an agreement and a note, which also represented the same indebtedness.

Both Carter and Swift testified that Carter had made payments pursuant to these documents, with a balance due of $9,500.

Carter contends that the trial court erred in concluding that there had been no accord and satisfaction or novation of the first note because he concluded the later documents did not create any ambiguity in Plaintiff’s Exhibit 1 and no new consideration supported the later agreement and note.

Findings of fact made by the trial court in a nonjury trial may not be set aside unless they are clearly erroneous and the findings here are not. Sadler v. First Nat. Bank &c., 267 Ga. 122, 123 (2) (475 SE2d 643) (1996).

Carter’s acknowledgment that he signed Plaintiff’s Exhibit 1 and that the total sum due had not been paid entitled Swift to recover on the note unless Carter could establish his affirmative defense. OCGA § 11-3-307 (2); Rodgers v. First Union Nat. Bank, 220 Ga. App. 821 (1) (470 SE2d 246) (1996).

Regarding accord and satisfaction, Carter argues that the signing of Defendant’s Exhibit 28 was the “satisfaction” of the earlier note, based on Codner v. Siegel, 246 Ga. 368 (271 SE2d 465) (1980) and North Alabama &c. v. Cap’n Sam’s Cruises, 181 Ga. App. 718 (353 SE2d 578) (1987). In Codner, however, there was a new agreement to pay a debt before it was due in a smaller sum than was owed. Here, the only supposed new consideration pointed to by Carter is the inclusion in the contracts of “Conditions.” These, however, do not alter the absolute promise to pay the $17,000 as reflected in the original note as well as the subsequent note and agreements. At best, the later contracts amount to a promise to perform an obligation already existing under the note. Dixie Groceries v. Albany Business Machines, 156 Ga. App. 36, 37 (1) (274 SE2d 81) (1980).

In North Alabama, there was also evidence that the debt represented by three notes was included in the final settlement of the purchase of a vessel and that the final agreement, reached at closing, changed the terms of payment of the amount represented by the notes, requiring money to be paid in a different manner and on shorter terms than the original notes. This was found to be new consideration.

Decided March 8, 1999

David E. Mullís, for appellant.

Bennett Law Firm, Michael S. Bennett, Sr., Michael S. Bennett, Jr., for appellee.

The trial court’s finding that there was no such consideration or new agreement here was not clearly erroneous. Feely v. First Am. Bank, 206 Ga. App. 53, 56 (2) (a) (424 SE2d 345) (1992); Brooks v. McCorkle, 174 Ga. App. 132 (329 SE2d 214) (1985); Tatum v. Bank of Cumming, 135 Ga. App. 675 (1) (218 SE2d 677) (1975).

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       The language of the two promissory notes is identical except for the addition to the note which is part of Defendant’s Exhibit 28 of the following sentence: “A default in payment will be controlled by conditions in attached agreement between Neil Carter and Carl Swift.” Condition 9 states that, “In case of default of payment, the balance owed seller will be the value of the book of business at the time of default, less payments made by buyer.”

       Although Swift correctly points out that accord and satisfaction was not pled as an affirmative defense by Carter as required by OCGA § 9-11-8 (c), the issue was tried by the parties and will be treated as if raised by the pleadings. Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468) (1991); Mortgage Savings Co. v. KKFB Investment Co., 196 Ga. App. 283, 284 (1) (396 SE2d 16) (1990).


text:
    A98A2046.
    LIPSTEUER v. CSX TRANSPORTATION, INC.
    (513 SE2d 532)
   Ruffin, Judge.

Bruce Lipsteuer sued his former employer, CSX Transportation, Inc., under the Federal Employer’s Liability Act, 45 USC § 51 et seq. (FELA), alleging that he suffered injury as a result of exposure to hazardous chemicals and other toxic substances. The Gwinnett County Superior Court granted CSX’s motion for summary judgment, holding that the claim was barred by the statute of limitation. We affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Plaintiff originally sued CSX on January 3, 1994 in Gwinnett County State Court, alleging the same injuries and cause of action as in the present case. Plaintiff voluntarily dismissed the State Court action on September 6,1996. On September 12,1996, plaintiff refiled the action in the Jefferson Circuit Court in the state of Kentucky. While the Kentucky case was pending, plaintiff filed the current action in Gwinnett County Superior Court on March 6, 1997. The Kentucky court dismissed plaintiff’s case with prejudice on May 15, 1997, holding that the statute of limitation had expired. Plaintiff asserts that an appeal of the Kentucky ruling is pending, although this is not shown by the record. The trial court in this case granted CSX’s motion for summary judgment on September 3, 1997.

“Actions maintained under the FELA must be filed within three years from the day the cause of action accrues. 45 USC § 56. A claim accrues under FELA when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known.” CSX Transp. v. Adkins, 264 Ga. 203 (442 SE2d 737) (1994). Plaintiff’s cause of action accrued no later than January 3, 1994, when he first sued CSX for his injuries and alleged that the injuries were the result of CSX’s negligence. Thus, this action, which was filed on March 6,1997, was filed outside the three-year limitation period.

Plaintiff argues that the statute of limitation was equitably tolled during the pendency of the Kentucky action, and that this case therefore relates back to the filing of the Kentucky action. This contention is without merit. In Burnett v. New York Central R., 380 U. S. 424, 428 (85 SC 1050, 13 LE2d 941) (1965), the United States Supreme Court discussed the effect of a pending suit on the FELA statute of limitation. The plaintiff in that case sued the defendant within the limitation period, but improperly brought the action in state rather than federal court. After the suit was dismissed for improper venue, the plaintiff refiled in the proper forum. The Supreme Court noted that, in federal courts and in many states, a case filed in the wrong forum would be transferred to the proper court rather than dismissed. Id. at 430-431. In other states, “savings” statutes would allow a plaintiff whose action is dismissed for improper venue or other procedural reasons to refile within a specified time. Id. at 431. Noting that these savings statutes varied widely from state to state, the Supreme Court held that such statutes are not incorporated into the FELA statute of limitation. Id. at 431-433. However, the Court held that “when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process and plaintiff’s case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit.” Id. at 434-435. This ruling “placed those state court FELA plaintiffs in states where no transfer statute existed on equal footing with FELA plaintiffs in federal court and in state courts in states with transfer statutes, thus promoting national uniformity.” Smith v. Seaboard System R., 179 Ga. App. 822, 823 (348 SE2d 97) (1986).

Burnett did not establish a general rule that the filing of a FELA claim in one jurisdiction automatically tolls the statute of limitation during the pendency of that action. In Smith, supra, we expressly held that the Burnett holding was “limit [ed] ... to those cases in which a timely filed and properly served FELA case is dismissed due to improper venue after the expiration of the statute of limitation.” Id. We held that “[s]ince appellant’s initial FELA complaint was dismissed for a reason other than improper venue, the FELA statute of limitation was not tolled during the pendency of the earlier action.” Id.

In this case, the Kentucky action was not dismissed for improper venue, but because of the expiration of the statute of limitation. Accordingly, the statute of limitation was not tolled under Burnett during the pendency of the Kentucky action.

The fact that the present action was filed before the Kentucky court entered its dismissal order does not change this result. Although raising the same claim, this case is not a transfer or renewal of the Kentucky action, but is a separate lawsuit. Plaintiff has cited, and we have found, no cases holding that if a plaintiff timely files a FELA action in one state, he may continue filing identical actions in other states up until the point the first action is dismissed, without regard to the statute of limitation. Rather than promoting equity, such a proposition would make a mockery of the statute of limitation, require defendants to defend the same claim in multiple forums, and encourage flagrant forum shopping on the part of plaintiffs. Indeed, a plaintiff could prolong litigation indefinitely, refiling in another jurisdiction if it appeared that an adverse ruling in pending litigation was imminent, and then voluntarily dismissing the pending litigation before such a ruling could be entered. Although Burnett recognizes that the policy of repose may be outweighed “where the interests of justice require vindication of the plaintiff’s rights,” Burnett, supra at 428, that is not the case here. Accordingly, plaintiff’s contention that the Kentucky action tolled the running of the statute of limitation is without merit.

Decided March 8, 1999.

Schwartz & Associates, Robert C. Arledge, James W. Owens, for appellant.

Casey, Gilson & Williams, James E. Gilson, Matthew H. Roane, for appellee.

Plaintiff also contends that, notwithstanding his discovery of the cause of his injuries, the statute of limitation did not begin running until June 6, 1994, his last date of employment with CSX, because he was continuously exposed to hazardous chemicals up to that point. This contention has been squarely rejected by federal courts construing the FELA statute of limitation. The “continuing conduct of defendant will not stop the ticking of the limitations clock begun when plaintiff obtained requisite information. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy.” Kichline v. Consolidated Rail Corp., 800 F2d 356, 360 (3rd Cir. 1986). See also Ricard v. Elgin, Joliet & Eastern R. Co., 750 FSupp. 372, 375 (N.D. Ind. 1990) (“the continuing tortious conduct of the defendant does not toll the statute of limitations when the plaintiff has knowledge of the fact of his injury and of its possible cause”); Stokes v. Union Pacific R. Co., 687 FSupp. 552, 554-555 (D. Wyo. 1988). These cases are consistent with our Supreme Court’s holding, in a non-FELA context, that “in a continuing tort a cause of action accrues when a plaintiff discovers, or with reasonable diligence should have discovered, both the injury and the cause thereof.” Waters v. Rosenbloom, 268 Ga. 482, 483 (2) (490 SE2d 73) (1997). Moreover, plaintiff admitted that the injuries alleged in the present case were the same as those alleged in his original suit filed on January 3, 1994. Plaintiff has not alleged or presented evidence that he suffered any additional injuries or aggravation of existing injuries due to actions of the employer between the date he filed suit and June 6, 1994, when he left employment. “Without additional injury there can be no continuing tort.” Stokes, supra at 555. Accordingly, plaintiff’s cause of action accrued when he discovered his injuries and their alleged cause, which occurred no later than January 3, 1994 when he sued CSX for such injuries. Because the present suit was filed more than three years after the accrual of the cause of action, it is barred by the statute of limitation.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       CSX moved to dismiss this appeal, claiming that after the docketing of the appeal in this Court, CSX moved for and obtained an order from the trial court dismissing plaintiff’s notice of appeal for failure to timely provide a transcript. However, by failing to move for and obtain an order of dismissal prior to the transmittal of the record to this Court, CSX waived any right to have this appeal dismissed for failure to timely file a transcript, and any order by the trial court purporting to dismiss the notice of appeal is a nullity. Court of Appeals Rule 20; Turner v. Taylor, 179 Ga. App. 574-575 (1) (a) (346 SE2d 920) (1986). Accordingly, CSX’s motion to dismiss is denied.

       Although not raised in CSX’s motion for summary judgment, the trial court held that res judicata did not apply because the Kentucky judgment had been appealed. Because the statute of limitation was the only ground asserted by CSX in its summary judgment motion, we do not consider whether CSX was entitled to summary judgment on the ground of res judicata. See Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).


text:
    A98A2130.
    INGLES MARKETS, INC. v. MARTIN et al.
    (513 SE2d 536)
   Ruffin, Judge.

Patricia and Raymond Martin sued Ingles Markets, Inc. for injuries sustained when Patricia Martin (hereinafter referred to as Martin) slipped on a clear puddle of liquid while shopping at an Ingles supermarket. The trial court denied Ingles’ motion for summary judgment, and we granted Ingles’ motion for interlocutory appeal. Because disputed issues of fact remain as to Ingles’ liability, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Moreover, we are reminded by the Supreme Court that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

Viewed in the light most favorable to plaintiffs, the record shows as follows. On February 15, 1994, Martin went into an Ingles supermarket in Lawrenceville to purchase groceries. As Martin was pushing her shopping cart down an aisle, she slipped on a clear liquid substance on the floor. She fell to the floor, injuring her lower back, hip, and knees. Martin testified that the puddle was about 16 or 18 inches across. She testified that the puddle was hidden behind a display in the aisle, although it might have been visible if she had been coming from another direction. Martin did not notice any Ingles employees in the aisle at the time of her fall. According to Martin, it was about 6:15 or 6:30 p.m. when she fell.

John Sawyer was the manager of the Ingles store at the time of the incident. Although he did not testify that he had independent knowledge of when the floor was swept, he said it was usually swept every hour. Whenever an employee swept the store, the employee would note the time on a sweep log and initial it. However, Sawyer testified that the sweep log for the night in question could not be located. When asked if he knew what time the floor was last swept before Martin’s fall, Sawyer testified that, before the deposition, he had reviewed an affidavit he executed more than two years after the fall as well as an accident report prepared after the incident. He stated that, after reviewing these documents, he “could not remember what time it was, but the record shows that it was 5:55.” When shown a copy of the accident report, Sawyer admitted that it had not been prepared by him but by an insurance claims representative, although he said he had prepared a similar report.

Sawyer testified that he did not know which employee purportedly swept the floor at 5:55. He testified that an employee named Steve cleaned up the liquid after Martin’s fall, and that it could have been Steve who swept the floor. However, he admitted that Steve’s name was not included on a list produced by Ingles purporting to identify all employees who were on duty the day of the incident.

“[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson, supra at 748-749. Ingles’ sole contention on appeal is that it had no actual or constructive knowledge of the hazard, and it does not contend that Martin failed to exercise ordinary care for her own safety. Martin does not contend that Ingles had actual knowledge of a hazardous condition. Therefore, the only issue on appeal is whether Ingles had constructive knowledge of the condition.

“ [Constructive knowledge may be inferred when there is evidence that. . . the owner lacked a reasonable inspection procedure.” Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 818 (507 SE2d 259) (1998). In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. Straughter v. J. H Harvey Co., 232 Ga. App. 29, 30-31 (500 SE2d 353) (1998). Ingles contends that, regardless of whether reasonable inspection procedures were followed on the day in question, it is entitled to summary judgment because plaintiff failed to show how long the liquid had been on the floor before the fall. Although this Court has in the past rendered conflicting decisions on this issue, we emphatically rejected Ingles’ position in a recent ten-judge decision, holding that “in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” Straughter, supra at 30. Accordingly, the determinative question in this appeal is whether, viewed in the light most favorable to plaintiffs, the evidence shows that Ingles followed reasonable inspection procedures at the time of the incident.

Sawyer testified that the store’s floor was “usually” swept every hour, although he provided no details as to how the sweeping was physically carried out. It is not clear that this periodic sweeping constituted a reasonable inspection program or would have resulted in discovery and removal of the puddle in question. However, even assuming that the sweeping program constituted a reasonable inspection program, Sawyer’s testimony as to the existence of the policy is insufficient to warrant summary judgment in Ingles’ favor. “Evidence establishing an adherence to customary inspection and cleaning procedures on the day in question is required!,] while proof of the mere existence of such customary procedures is insufficient.” (Punctuation omitted.) Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 225 (460 SE2d 838) (1995).

Ingles contends that it swept the floor at 5:55 p.m., about 20-35 minutes before the fall. The only evidence of such sweeping came from the testimony of Sawyer. However, it is clear from Sawyer’s testimony that he had no actual knowledge of the sweeping, but relied upon an alleged sweep card which may have contained an entry showing that the floor had been swept at that time. The sweep card itself was not produced, and Sawyer was unable to identify the employee who purportedly performed the sweeping.

As an initial matter, Ingles’ failure to produce the sweep card, combined with its failure to identify the employee who allegedly performed the sweeping, could allow the jury to infer that the sweep card and the employee’s testimony would not support Ingles’ contention that the floor was swept at 5:55 p.m. See Straughter, supra at 31; OCGA § 24-4-22. Such an inference is made more justifiable by the fact that the employee “Steve,” whom Sawyer identified as one of the sweepers on duty the day of the incident, was not included on the list of employees identified by Ingles during discovery.

It is possible, and perhaps likely, that the alleged sweep card would have been admissible pursuant to the business records exception to the hearsay rule. The card was never produced, however, and Sawyer’s testimony can at best be characterized as his recollection of what the card said. We have held that testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay. Foster v. Nat. Ideal Co., 119 Ga. App. 773, 775 (3) (168 SE2d 872) (1969). “While the testimony is apparently sufficient to identify the records as those of facts duly recorded in the normal course of business, thus qualifying the records for admission in evidence as a statutory exception to the hearsay rule[,] the testimony of the witness based on ‘no personal knowledge, just the records’ is inadmissible hearsay.” (Citation omitted.) Id. See also Hurst Boiler & Welding Co. v. Firstline Corp., 206 Ga. App. 446, 447 (1) (426 SE2d 22) (1992). Accordingly, Sawyer’s testimony regarding the time the floor was swept constitutes inadmissible hearsay, and cannot be considered for summary judgment purposes. See Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 427 (504 SE2d 245) (1998).

Decided March 8, 1999.

Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, Robert M. Malcom, for appellant.

Thomas M. Farrell, for appellees.

Moreover, Sawyer never directly testified that he had any independent recollection of what the sweep card said. Rather, his testimony that the floor was swept at 5:55 was based upon his review of other documents, specifically an affidavit he executed two years after the incident and an accident report prepared by an insurance adjuster. Neither of these documents indicated the basis for stating that the floor was swept at 5:55 p.m. Even after reviewing these documents, Sawyer could not positively testify either that he remembered when the floors were swept or that he remembered what the sweep card said. Rather, Sawyer testified that he “could not remember what time it was, but the record shows that it was 5:55.” “A witness may refresh his memory by using any written instrument or memorandum, provided he finally testifies from his recollection thus refreshed or swears positively from the paper. OCGA § 24-9-69.” (Emphasis omitted.) In the Interest of S. M. L., 228 Ga. App. 81, 82-83 (3) (491 SE2d 186) (1997). Viewed in the light most favorable to plaintiffs, Sawyer’s testimony does not show that he finally spoke from his own recollection or swore positively as to the time the floor was swept; rather, he simply repeated what the other documents reflect.

Apart from Sawyer’s hearsay testimony, there was no other evidence that the floor was swept on the day of the incident or that Ingles otherwise complied with a reasonable inspection procedure. Accordingly, plaintiffs were not required to show how long the liquid remained on the floor before the fall, and the trial court correctly denied Ingles’ motion for summary judgment. See Straughter, supra at 30-31.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


text:
    A98A2216, A98A2217.
    GOULDSTONE et al. v. LIFE INVESTORS INSURANCE COMPANY OF AMERICA; and vice versa.
    (514 SE2d 54)
   Ruffin, Judge.

Life Investors Insurance Company of America sued Debbie Gouldstone and DeCraig Corporation, alleging that they defaulted on a promissory note. Defendants answered, raising defenses of duress, failure of consideration, and setoff. Defendants also counterclaimed, alleging that plaintiff breached a separate lease agreement. The trial court granted partial summary judgment to plaintiff on its main claim and denied plaintiff’s motion for summary judgment on defendants’ counterclaims. In Case No. A98A2216, defendants appeal the grant of partial summary judgment to plaintiff on its claim under the promissory note. In Case No. A98A2217, plaintiff appeals the denial of its motion for summary judgment on defendants’ counterclaims. For reasons which follow, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in a light most favorable to the nonmoving parties, Gouldstone and DeCraig, the evidence shows that on or about September 24, 1993, DeCraig leased part of a shopping center from Life Investors. There is no copy of the purported lease in the record. In April 1995, a fire broke out in the shopping center. Gouldstone, a co-owner of DeCraig and its corporate secretary, testified that Life Investors’ actions in repairing the shopping center disrupted defendants’ business and caused economic losses in excess of $11,000.

According to Gouldstone, DeCraig’s cash flow problems stemming from the reconstruction caused it to fall behind in its rent payments to plaintiff. Thereafter, on February 14, 1997, Gouldstone agreed in writing to pay plaintiff $200 per week until the outstanding balance of $6,098.61 was paid in full. Gouldstone testified that she and the plaintiff’s property manager agreed that Gouldstone would give the property manager four post-dated $200 checks at the beginning of each month, and the manager would deposit one check each Monday. Gouldstone told the property manager that she would have $200 in her bank account each Monday so that the property manager could deposit one check at a time. Gouldstone testified that the property manager would call her each Monday to verify that the check could be deposited.

Gouldstone claimed that this arrangement worked well until plaintiff changed property managers, at which time the new manager deposited three checks at once, causing them to bounce. On May 21, 1997, plaintiff’s attorney sent defendants a letter advising them that the checks had been dishonored for insufficient funds; that defendants were in default of the letter agreement and thus owed the entire $6,400.19 balance outstanding under the lease; and that plaintiff intended to seek attorney fees if such amount was not paid in full. Plaintiff also advised defendants that unless they paid the full amount of the dishonored checks, plus a service charge of $20 for each check, within ten days, plaintiff “may file a suit against the DeCraig Corporation for two times the amount of each check, but in no case more than $500.00, in addition to the payment of each check plus any court costs.”

According to Gouldstone, plaintiff’s attorney contacted her and “told me that I had committed a serious offense in Georgia by giving checks to the Plaintiff when I knew the checks would not clear.” Gouldstone also said that the attorney “intimated” that she “could have criminal responsibility for writing the checks that did not clear.”

On May 29,1997, plaintiff’s attorney sent Gouldstone a proposed promissory note, to be executed by Gouldstone and DeCraig, in the principal amount of $6,460. The note required defendants to make semi-monthly payments in the amount of $350. In his cover letter, the attorney stated that if defendants executed the note by June 5, 1997, plaintiff would “not seek the relief set forth in my May 21,1997 letter.” Gouldstone executed the note individually and on behalf of DeCraig. Gouldstone testified that she executed the promissory note because she “was terribly worried about someone accusing me of a criminal offense,” and she was afraid that the attorney would “try to pursue the ‘serious offense’ that [he] intimated he would do.”

After the execution of the promissory note, plaintiff received two payments from defendants in the amount of $750. On July 23, 1997, plaintiff notified defendants that they were in default under the promissory note. The present suit followed.

Case No. A98A2216

1. In three enumerations, defendants contend that the trial court erred in granting summary judgment to plaintiff on the promissory note because there are material facts in dispute regarding their affirmative defenses of duress, failure of consideration, and setoff. “[Plaintiff] established a prima facie right to judgment as a matter of law by producing the note and showing it was executed. The burden then shifted to [defendants] to establish an affirmative defense to [plaintiff’s] claim. Once [defendants] raised [affirmative defenses], the burden shifted again to [plaintiff] to establish the non-existence of [those] defense[s].” (Citations omitted.) Keene v. Herstam, 225 Ga. App. 115, 116 (1) (483 SE2d 335) (1997). We address each asserted defense in turn.

(a) Duress. Defendants contend that the promissory note did not constitute a valid contract because it was executed under duress. OCGA § 13-5-6 provides that “[s]ince the free assent of the parties is essential to a valid contract, duress, either by imprisonment, threats, or other acts, by which the free will of the party is restrained and his consent induced, renders the contract voidable at the election of the injured party.” Defendants argue that plaintiff procured the promissory note under duress because plaintiff’s attorney threatened Gouldstone with criminal prosecution for writing bad checks.

As an initial matter, although Gouldstone testified that she was “worried about someone accusing me of a criminal offense” and was “afraid that the attorney would try to pursue the ‘serious offense’ that Die] intimated he would do,” she never testified that her free will was restrained or that she did not sign the promissory note of her own free will. Indeed, she never testified that, absent the attorney’s intimation of criminal liability, she would have refused to sign the note. However, it is not necessary to rely on this fact, since the alleged statements by plaintiff’s attorney were not sufficient to support a defense of duress.

“It has been frequently held that mere threats of criminal prosecution, when neither warrant has been issued nor proceedings commenced, do not constitute duress. The threatened prosecution must be for an act either criminal or which the party threatened thought was criminal. A mere empty threat does not amount to duress.” (Punctuation omitted.) Yearwood v. Nat. Bank of Athens, 222 Ga. 709, 712 (2) (152 SE2d 360) (1966). Moreover, “[i]t is not sufficient to allege that the [contract] was executed because of an empty threat made by another. It is necessary to show that at the time there was an apparent intention and ability to execute the threat.” Hoover v. Mobley, 198 Ga. 68, 71 (31 SE2d 9) (1944). Gouldstone did not testify that the attorney threatened to prosecute her if she did not sign the promissory note. Rather, she stated that he “intimated that I could have criminal responsibility” for writing the checks. Defendants, in their brief, admit that plaintiff’s attorney only “suggested that Gould-stone could have criminal responsibility for writing the checks that did not clear.” (Emphasis supplied.) The alleged statement of plaintiff’s attorney falls far short of the threat of criminal prosecution that might support a duress defense. See Hoover, supra; Yearwood, supra.

Defendants assert that the fact that Gouldstone signed the note a mere three days after the attorney’s threat of criminal prosecution reveals that the note was signed under duress. However, the record clearly shows that plaintiff’s attorney gave Gouldstone more than a week to decide whether she wanted to execute the promissory note and that the note was sent by mail, thus giving Gouldstone time to seek an attorney or to otherwise determine if the “threat” was genuine. Compare Williams v. Rentz Banking Co., 112 Ga. App. 384 (145 SE2d 256) (1965) (plaintiffs alleged they were physically detained by the defendant bank until they signed a promissory note).

Although defendants claim that plaintiff’s alleged breach of the lease caused their financial problems, thus forcing them to sign the note, “the [defendants] could have pursued other legal remedies, even though they may have seemed unattractive, rather than going forward with the [promissory note].” Anziano v. Appalachee Enterprises, 208 Ga. App. 760, 762 (432 SE2d 117) (1993). “Even assuming for the sake of argument that [defendants were] experiencing economic distress, such financial difficulties do not constitute legal distress.” Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 650 (4) (497 SE2d 397) (1998).

“One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.” (Punctuation omitted.) Tidwell v. Critz, 248 Ga. 201, 204 (1) (282 SE2d 104) (1981). We conclude that there is no genuine issue as to any material fact regarding defendants’ asserted defense; thus, plaintiff is entitled to judgment, as a matter of law, on the issue of duress. Id.

(b) Failure of consideration. Defendants’ failure of consideration argument also lacks merit. “[N]o consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.” (Punctuation omitted.) Berry v. Atlas Metals, 152 Ga. App. 437, 439 (2) (263 SE2d 179) (1979); see also Miller, supra at 650 (3). The promissory note in this case was given in payment of an antecedent obligation, namely, DeCraig’s liability under the original lease agreement. Although Gouldstone notes that she was not a party to the lease agreement in her individual capacity, “[s]ufficient consideration is evident when one who is an officer or shareholder of a corporation cosigns a note of the corporation since the benefits of the note will be conferred at least indirectly upon the individual.” Marchman Oil &c. Co. v. Southern Petroleum Trading Co., 167 Ga. App. 691, 692 (2) (307 SE2d 509) (1983). Because Gouldstone was an officer of DeCraig, there was sufficient consideration for her execution of the note in her individual capacity.

(c) Setoff. In their answers, defendants raised the affirmative defense of setoff. In their brief on appeal, defendants make it clear that their claim of setoff is not related to the promissory note, which is the basis of plaintiff’s cause of action, but is based on defendants’ claim that plaintiff breached the lease by disrupting their business during reconstruction after the fire. This assertion is also the basis for defendants’ counterclaim against plaintiff. It is true that “parties to a suit are entitled to setoff‘mutual demands existing at the time of the commencement of the suit.’ OCGA § 13-7-5. However, this type of setoff ‘does not operate as a denial of the plaintiff’s claim; rather it allows the defendant to set off a debt owed him by the plaintiff against the claim of the plaintiff.’ OCGA § 13-7-1. As such, it must be asserted as a counterclaim rather than a defense.” (Punctuation omitted.) Nat. City Bank of Rome v. Busbin, 175 Ga. App. 103, 105-106 (3) (332 SE2d 678) (1985). “Under the facts before us, the type of setoff asserted by [defendants] does not operate as a denial of [plaintiff’s] claim on the note. Rather, such a setoff merely allows [defendants] to setoff a debt owed [them] by [plaintiff], if any is proven at trial, against the claim of [plaintiff] on the note.” Gynecologic Oncology v. Weiser, 212 Ga. App. 858, 860 (5) (443 SE2d 526) (1994) (affirming grant of partial summary judgment on promissory note). Accordingly, the trial court did not err in rejecting defendants’ claim of setoff as a defense to plaintiff’s claim under the promissory note.

Case No. A98A2217

2. In its cross-appeal, plaintiff asserts that the trial court erred in denying its motion for summary judgment as to defendants’ counterclaim. However, plaintiff presented no argument below in support of its motion for summary judgment on the counterclaim. Indeed, the only reference to the counterclaim in plaintiff’s summary judgment brief below, apart from the request for relief, was plaintiff’s factual representation that, “[i]n their answers the Defendants seek to go behind the accord and satisfaction of such promissory note and seek to counterclaim for damages alleged arising from the Plaintiff’s failure to make repairs to certain shopping center space in which the Defendant, DeCraig Corporation, was a tenant.” To the extent that this sentence raised the issue of whether the promissory note constituted an accord and satisfaction of all issues arising out of the lease agreement, we will address it on appeal. However, we will not consider any other possible grounds for summary judgment, as they were not raised below. See Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995) (“issues that must be rebutted on motion for summary judgment are those raised by the motion”).

“An accord and satisfaction exists where (1) there is a bona fide dispute as to the amount due under the agreement; (2) the dispute is between the parties and not limited to the mind of the debtor; and (3) the dispute existed prior to the debtor’s tender of any amount less than that due under the agreement. OCGA § 13-4-103 (b) (1). The court may also find an accord and satisfaction where there is an ‘independent agreement’ between the parties stipulating that the acceptance of a lesser amount satisfies the entire debt. OCGA § 13-4-103 (b) (2).” (Citation omitted.) Quintanilla v. Rathur, 227 Ga. App. 788, 793 (3) (490 SE2d 471) (1997).

Although the parties agreed that the promissory note would satisfy defendants’ obligation to pay past due rent under the lease agreement, nothing in the record shows that by executing the promissory note, defendants agreed to settle any claims they might have had for the plaintiff’s alleged breach of the lease agreement. In fact, there is no evidence whatsoever that a dispute existed regarding plaintiff’s alleged breach prior to the filing of defendants’ counterclaim. To the extent that Gouldstone’s affidavit reveals that she was aware of possible claims against plaintiff under the lease agreement, this “dispute” was clearly “limited to the mind of the debtor,” Quintanilla, supra; thus, the promissory note did not operate as an accord and satisfaction of any and all claims defendants may have had under the lease.

Decided March 8, 1999.

Walter H. Hotz, for appellants.

Harris, Phillips & Harris, Steven D. Harris, for appellee.

Since accord and satisfaction was the only ground even arguably asserted by plaintiff in its motion for summary judgment on defendants’ counterclaim, the trial court did not err in denying that motion, even if summary judgment may have been appropriate for other reasons. See Hodge, supra.

Accordingly, we conclude that the trial court properly granted summary judgment to plaintiff on its main claim and denied summary judgment with regard to the defendants’ counterclaims.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


text:
    A99A0473.
    HILLERY v. THE STATE.
    (513 SE2d 527)
   Andrews, Judge.

After being indicted and tried for rape, Nicholas D. Hillery was found guilty by a jury of aggravated assault with intent to rape.

1. Hillery claims that all the evidence showed either the completed offense of rape or no offense, and therefore the trial court erred by charging the jury that it was authorized to consider whether he was guilty of the lesser included offense of aggravated assault with intent to rape.

“An indictment for rape necessarily includes the lesser offenses of assault with intent to rape and assault and battery.” Andrews v. State, 196 Ga. 84, 112 (26 SE2d 263) (1943). “[However,] [w]here all of the evidence shows either the completed offense of rape as charged, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.” Sims v. State, 203 Ga. 668, 670-671 (47 SE2d 862) (1948).

Decided March 8, 1999.

Craig S. Mathis, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

There was no error in the present case because the evidence authorized the charge. The victim testified that she was “kind of pushing and fighting” with Hillery as he tried to kiss her against her will, although she said “it wasn’t anything rough or nothing.” She said that she fell back onto the couch, that Hillery forcefully pulled down her pants against her will as she was trying to keep him off of her, and then he raped her. Although Hillery did not testify at the trial, a statement he gave to the police was admitted into evidence. In the statement, Hillery denied raping or having sex with the victim, but he admitted that he tried to kiss the victim but she would not let him. He further stated that they were just “playing” and explained “playing” to mean that “we wrestle and stuff like that[,] maybe wrestle or something like that... we fussed.”

Hillery’s statement in conjunction with the testimony of the victim provided evidence that Hillery assaulted the victim with intent to rape. Sims, 203 Ga. at 670-671; Terry v. State, 166 Ga. App. 632 (305 SE2d 170) (1983). Accordingly, the trial court did not err in charging the jury as to the lesser included offense of assault with intent to rape.

2. The evidence was sufficient for a rational trier of fact to conclude that Hillery was guilty beyond a reasonable doubt of the offense of aggravated assault with intent to rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A99A0536.
    GENTRY v. THE STATE.
    (513 SE2d 528)
   Andrews, Judge.

Mitchell Neal Gentry appeals from the judgment of conviction and sentence entered on jury verdicts finding him guilty of: two counts of homicide by vehicle in the first degree, serious injury by vehicle, driving under the combined influence of alcohol and cocaine, reckless driving, no proof of insurance, and the use of a license plate for the purpose of concealing or misrepresenting the identity of a vehicle.

1. Gentry claims the evidence was insufficient to support his conviction on the two counts of homicide by vehicle and on the counts for serious injury by vehicle and reckless driving.

In support of the two counts of first degree homicide by vehicle, the State produced evidence that Gentry operated his vehicle in violation of OCGA § 40-6-391 (a) (4) while under the combined influence of alcohol and cocaine to the extent that it was less safe for him to drive, and that his operation of the vehicle caused a collision with another vehicle in which two passengers in Gentry’s vehicle died. Evidence showed that, while Gentry operated his vehicle under the influence of alcohol and cocaine, he lost control of the vehicle as he was speeding and attempting to pass a vehicle in a no-pass zone. Gentry’s out of control vehicle spun across the center line and collided with another vehicle in the oncoming lane of traffic. Both passengers in Gentry’s vehicle, Sandra Fair and Anthony Shropshire, were killed in the collision. The driver of the other vehicle in the collision, Emerson Bennett, suffered multiple fractures of the pelvis, ribs and leg. His injuries required two surgical procedures and will probably require additional hip replacement surgery.

Tests conducted at the State Crime Lab on blood and urine samples given by Gentry shortly after the collision showed a blood alcohol concentration of .11 grams from the urine sample and .12 grams from the blood sample. Additional testing showed that Gentry’s blood sample tested positive for the presence of a metabolite of cocaine, and his urine sample tested positive for cocaine and a cocaine metabolite. A forensic toxicologist from the State Crime Lab testified that the tests showed Gentry had ingested cocaine from one and a half to six hours prior to when the samples were drawn after the collision. An emergency medical technician who arrived at the accident scene shortly after the collision testified that an odor of alcohol was on Gentry’s breath, that Gentry’s pupils and slowness of verbal response showed possible signs of intoxication, and that Gentry said he had consumed “several vodkas.”

An accident reconstructionist testified for the State that, based on evidence gathered from the collision scene, Gentry’s vehicle was traveling between 74 and 81 mph when it spun out of control, and that the high rate of speed was a factor in Gentry’s loss of control over the vehicle. The posted speed limit at that location was 55 mph. Gentry testified and admitted that he had been drinking alcohol and had ingested cocaine prior to the collision, although he denied that either substance affected his driving. Gentry also admitted he was speeding and attempting to pass in a no-pass zone when he lost control of the vehicle, but he claimed that he lost control solely because the brakes malfunctioned by locking when he attempted to slow down.

Evidence that Gentry was driving under the influence of alcohol and cocaine, along with evidence that the fatal collision occurred when he lost control of the vehicle while traveling at a high rate of speed in excess of the posted speed limit, was sufficient to allow the jury to conclude that Gentry was a less safe driver as a result of the influence of the alcohol and cocaine. “Evidence as to the manner of driving, including excessive speed, may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done, and for this purpose evidence of travel in excess of the legal rate of speed may be considered.” (Citations and punctuation omitted.) Duggan v. State, 225 Ga. App. 291, 293-294 (483 SE2d 373) (1997). The evidence was also sufficient to support the jury’s conclusion that, without malice aforethought, Gentry caused the collision and the resulting death of his two passengers through violation of OCGA § 40-6-391 (a) (4) by driving his vehicle under the combined influence of alcohol and cocaine to the extent that it was less safe for him to drive. OCGA § 40-6-393; Mote v. State, 212 Ga. App. 551, 552-553 (442 SE2d 799) (1994).

Although Gentry testified that a brake malfunction caused the fatal collision, the evidence presented in support of the theory that the brakes improperly locked and caused the collision was purely speculative. The State, on the other hand, produced evidence that inspection of the brakes after the collision showed no mechanical defects. The evidence as to the cause of the collision, though circumstantial, was sufficient to exclude every reasonable hypothesis except that of guilt, and was sufficient to support the jury’s conclusion that Gentry was guilty beyond a reasonable doubt of both counts of vehicular homicide in the first degree. Dobson v. State, 222 Ga. App. 331, 332 (474 SE2d 630) (1996); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence was also clearly sufficient for the jury to conclude beyond a reasonable doubt that Gentry was guilty of: reckless driving (OCGA § 40-6-390), causing serious bodily injury to the driver of the other vehicle in the collision through the violation of § 40-6-391 (OCGA § 40-6-394), and driving under the combined influence of alcohol and cocaine to the extent that he was a less safe driver (OCGA § 40-6-391 (a) (4)).

2. Gentry claims that he was prejudiced by the court’s failure to redact a dismissed count from the indictment used by the jury during its deliberations.

In Count 1 of the indictment, the State charged Gentry with possession by ingestion of cocaine. The State’s evidence in support of this charge was the blood and urine test results obtained pursuant to the implied consent notice given to Gentry after the accident. This count was dismissed after the trial court correctly ruled that Gentry’s consent to the testing done pursuant to the implied consent notice did not constitute additional consent for the State to test his blood and urine for the purpose of establishing evidence to support a criminal prosecution for possession of cocaine. State v. Lewis, 233 Ga. App. 390, 393 (504 SE2d 242) (1998).

After the jury rendered a verdict finding Gentry guilty of Counts 2 through 16 of the indictment, the trial court noted that the dismissed Count 1 had inadvertently not been redacted from the indictment sent out with the jury. The record shows that the trial court charged the jury to consider only Counts 2 through 16 and not to be concerned with Count 1. Although the record shows that the jury did not render a verdict as to Count 1, the jury foreman stated that the jury did discuss unredacted Count 1.

Under the circumstances, we find no prejudice to Gentry requiring reversal. By virtue of other counts in the indictment and the evidence supporting them, the jury was already aware that the State contended Gentry ingested cocaine. Moreover, the indictment itself was not evidence and the jury was so instructed. It is highly probable that any error in the failure to redact Count 1 from the indictment did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 60-61 (230 SE2d 869) (1976).

3. Gentry contends that a member of the jury engaged in misconduct during deliberations that prejudiced his right to a fair trial and requires reversal of his convictions.

After the conclusion of the trial, one of the jurors revealed to the prosecutor that he used a toy “matchbox” car he had brought from home, along with a Styrofoam coffee cup which was in the jury room, to briefly illustrate to the other jurors the collision between Gentry’s vehicle and the vehicle driven by Bennett. Since a defendant has a right to be confronted with all the evidence against him, it is improper for the jury to conduct tests or experiments during deliberations which have the effect of producing evidence not introduced at trial. Williams v. State, 252 Ga. 7, 8-9 (310 SE2d 528) (1984); Watkins v. State, 237 Ga. 678, 683-685 (229 SE2d 465) (1976); Smith v. State, 122 Ga. 154 (50 SE 62) (1905). Any such test or experiment which has the effect of exposing the jury to new evidence is improper and will require the grant of a new trial if the new evidence is so prejudicial that the verdict must be deemed inherently lacking in due process. Williams, 252 Ga. at 8-9. On the other hand, it is not improper for the jury to use its common experience to conduct illustrations or experiments which merely examine or verify evidence admitted during the trial. An object, not itself admitted into evidence, used by a juror as a model to illustrate trial evidence during jury deliberations does not necessarily expose the jury to new evidence, although it could conceivably have that effect depending on the object and its use under the circumstances. The use of an object by the jury may constitute no more than a common sense illustration of the evidence admitted at trial. See Annotation, Propriety of Juror’s Tests or Experiments in Jury Room, 31 ALR 4th 566 (1984).

In the present case, we find no basis for concluding that the brief use of the toy car and the coffee cup to illustrate the collision improperly exposed the jury to new evidence. Moreover, the State produced affidavits from nine of the twelve jurors stating that their verdicts were based solely on the evidence produced at the trial and not on the illustration of the collision.

4. Gentry contends that the trial court erred by admitting the results of the blood and urine tests showing his blood alcohol level and the presence of cocaine in his blood because the manner in which the arresting officer read the notice to him changed its substance.

We find no error in the trial court’s admission of the blood and urine tests consented to by Gentry after he was given the implied consent notice set forth in OCGA § 40-5-67.1. The amended version of § 40-5-67.1 (b), which applies retroactively to the present case, states that the notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” State v. Moncrief, 234 Ga. App. 871, 872-873 (508 SE2d 216) (1998). After the officer demonstrated at trial how he read the notice to Gentry from a card containing the statutory language, Gentry objected that the officer’s testimony did not exactly track the language of the statutory notice. However, the amended trial transcript corrects the only change from the statutory notice raised by Gentry on appeal.

5. The State presented additional evidence, which Gentry does not challenge on appeal, sufficient to prove beyond a reasonable doubt that he was guilty of the offenses of driving with no proof of insurance (OCGA § 40-6-10) and using a license plate for the purpose of concealing or misrepresenting the identity of a vehicle (OCGA § 40-2-5).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Decided March 8, 1999.

Billington & Associates, Donna L. Bearden, for appellant.

T Joseph Campbell, District Attorney, for appellee.

       The trial court subsequently merged various of the counts on which Gentry was found guilty.


author: Beasley, Presiding Judge.

text:
    A98A2076.
    MILLER v. THE STATE.
    (513 SE2d 27)
   Beasley, Presiding Judge.

Miller was charged with two counts of first degree vehicular homicide under OCGA § 40-6-393 (a). Count 1 alleged that he caused the death of David Stachur through violation of OCGA § 40-6-391 (a) (1) (DUI to the extent that it was less safe to drive) by striking a bicycle being pedaled by Stachur. Count 2 accused Miller of causing Stachur’s death through violation of OCGA § 40-6-391 (a) (5) (DUI with an unlawful blood-alcohol concentration). Miller was convicted on Count 1.

He challenges the sufficiency of the evidence to support the verdict, on the ground that Stachur’s death was the result of unavoidable accident. He also contends that the trial court erred in refusing to charge the jurors on speeding as a predicate to the lesser included offense of second degree vehicular homicide and in refusing to recharge the jurors on the requirement of proximate cause. Third, he complains of the denial of his motion to suppress the results of a blood-alcohol test because the State did not show that the test was administered within three hours after he had driven his car. Additional issues are also raised.

At the time of the accident, Miller was 20 years old and resided with his aunt and uncle. He had one prior DUI arrest. The testimony of State’s witnesses Stephanie Gresham and Tim Haler, good friends of Miller’s, supported findings that, on the evening in question, Miller had been at a bar and had consumed an undetermined amount of beer. Miller gave Gresham and Haler a ride from the bar to Gresham’s house when the bar closed, because Haler and Gresham had become extremely intoxicated. Both witnesses agreed Miller’s driving was not normal. Haler testified that en route to Gresham’s home, Miller was weaving in his lane. Gresham asked Miller to spend the night because she did not think it was safe for him to drive, but Miller declined.

As Miller was proceeding from Gresham’s house to his own along Highpoint Road in a southerly direction, he encountered Stachur riding his bicycle in the middle of the road going the same way. Miller’s vehicle struck the rear of the bicycle, propelling Stachur onto the hood of the car into the windshield and resulting in his death from blunt force trauma to the head. The collision occurred in an uphill area of Highpoint Road before it curves in a southeasterly direction at its intersection with Fireplace Trail.

Miller did not stop to render assistance but rather drove home and awoke his aunt and uncle. Crying hysterically, he said he had just hit someone on a bicycle. The aunt called 911, and the uncle drove Miller to the scene in an unsuccessful attempt to find the victim. The 911 call was received at 2:52 a.m.

Gwinnett County police officer Yeager was dispatched to the scene. After an unsuccessful attempt to find the bicyclist, he followed Miller and his uncle back to their house. He observed extensive damage to the right front of Miller’s vehicle and saw the shattered windshield on the passenger’s side and fabric embedded in the broken windshield. Officer Yeager, who had previously thought Miller may have hit a deer, became convinced otherwise and returned to look for the victim. Stachur’s body was discovered by other officers on the scene around that time.

Stachur was dressed in dark non-reflective clothing, had not been wearing a helmet, and apparently was riding the bicycle while wearing a set of Walkman headphones which were found on the ground. The bicycle displayed a rear reflector approximately one and one-half to two inches in diameter but no headlight or battery-operated light. According to Stachur’s mother, he had covertly left their home that night and ridden his bicycle to his girlfriend’s. Stachur’s mother related that he had a habit of riding his bicycle at night and previously had been warned of the attendant dangers by the police.

According to Corporal Thaxton of the Gwinnett County Police Department, the roadway was dark, without streetlights, and there was no significant moonlight at the time of the collision. Based on his investigation, Thaxton concluded that at the moment of impact the bicycle was moving from left to right at an approximate ten- to twenty-degree angle to the shoulder of the road and was no less than six feet from the fog line of the twelve-foot-wide southbound lane. This was consistent with Miller’s statement to Thaxton that the bicycle was in the middle of the lane. Although Miller also related to Thaxton that he had swerved in an attempt to avoid hitting the bicycle, Thaxton found no skid marks on the road which would have evidenced braking or other evasive action. Thaxton testified that when Miller’s car was inspected by officers after the collision, the headlights were on low beam. Miller did not testify.

The speed limit was 35 mph, and Thaxton found no evidence that Miller was speeding. A car being driven at the speed limit would travel approximately 50 feet per second. According to Thaxton, the standard reaction time for a person Miller’s age is one second. Thaxton testified that at a distance of 50 feet, the reflector on Stachur’s bicycle would have been “very visible,” “[i]f you’re looking for it,” but “[i]f you’re not aware it might be there,. . . there’s a good chance you would miss it. . . .” He added that the visibility of the reflector would also be influenced by the angle between the bicycle and a car, so that it would be invisible at a 90-degree angle but increasingly more visible as the angle decreased. Defendant’s accident reconstruction expert Hill offered his opinion that under all the circumstances the collision was unavoidable.

Officer Thaxton arrived on the scene at about 4:10 a.m. and instructed Officer Thompson to secure Miller and his vehicle. Officer Yeager returned with Thompson to Miller’s residence. Thompson testified that while, questioning Miller, he detected an alcohol odor and Miller acknowledged he had been drinking. Miller attempted unsuccessfully to perform a field sobriety test, and a breathalyzer administered to him registered positive for alcohol. After he verbally agreed to submit to a blood and urine test, he was transported to a medical center. Panter, a forensic chemist employed by the Georgia Bureau of Investigation, testified that the test revealed a blood-alcohol concentration of .17 grams at the time the test was administered.

Prior to having his blood drawn, Miller signed a release prepared by Bryant, the medical technologist who administered the test. Bryant stated on the release that it was executed at 5:00 a.m. He testified that this accurately reflected the approximate time Miller signed the release, and that he drew Miller’s blood immediately thereafter. Officer Thompson testified that Miller signed the release at exactly 5:00 a.m. Although in his testimony Panter commented that the blood was drawn at 5:20 a.m., he acknowledged that he had no personal knowledge of the time and was relying on documents submitted to him. Afterward Thompson returned Miller to his home, arriving at 5:40 a.m.

Miller’s aunt and uncle testified they did not smell any alcohol on Miller initially and he did not appear intoxicated, but when the police returned to the house after finding the victim, Miller smelled of alcohol and was acting differently. It is undisputed that Miller previously had been talking to the officers at a distance of one or two feet, and no one detected an odor of alcohol or observed any indicia of intoxication. The aunt testified that a large amount of alcohol was missing from one of their liquor bottles, and Miller admitted to her that he was drinking after the collision.

1. The first issue concerns the causation requirement of OCGA § 40-6-393 (a), which provides that any person who, “without malice aforethought, causes the death of another person through the violation of” various statutory provisions commits the offense of homicide by vehicle in the first degree. (Emphasis supplied.) The referenced statutes are OCGA §§ 40-6-163 (a); 40-6-270 (b); 40-6-390; 40-6-391; and 40-6-395 (a), which respectively prohibit passing a parked school bus, hit and run, reckless driving, DUI, and fleeing or attempting to elude police.

In cases such as McNabb v. State and Watkins v. State, we have recognized that the vehicular homicide statute requires the State to establish a causal connection between the defendant’s violation of the DUI or reckless driving statute and the victim’s death. In this case, Miller was convicted of causing the victim’s death through violation of OCGA § 40-6-391 (a) (1), which makes it unlawful for a person to drive or be in actual physical control of any moving vehicle under the influence of alcohol to the extent that it is less safe for the person to drive. It is not required that the person actually commit an unsafe act. By their terms, OCGA §§ 40-6-391 (a) (1) and 40-6-393 (a) require the State to prove only that the intoxicated driver caused the victim’s death as a result of driving under the influence to the extent it was less safe for him to drive.

2. Nevertheless, negligence by the defendant in operating his vehicle and the behavior of the victim remain relevant. In vehicular homicide cases, the State must prove that the defendant’s conduct was the “legal” or “proximate” cause, as well as the cause in fact, of the death.

If in a given case the injury 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 for the interposition of some independent, unforeseen cause, the defendant’s such antecedent wrongful act or omission would not be the proximate cause of the injury complained of. [Cits.]

Although contributory negligence, as such, is not a defense in a vehicular homicide case,

the conduct of the decedent, whether negligent or not, is material to the extent that it bears upon the question of whether under all the circumstances of the case the defendant was negligent, or, if negligent, whether the decedent’s negligence was the sole proximate cause of the injury, or whether the injury or death resulted from an unavoidable accident. [Cits.]

The trial court granted defendant’s request to charge the jury on OCGA § 16-2-2: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.”

Logically, the jury could have rejected this defense and still acquitted defendant based on the State’s failure to prove proximate cause beyond a reasonable doubt. Criminal negligence could be found in defendant’s intentionally driving under the influence of alcohol to the extent it was less safe for him to drive, even if the victim’s death was accidental and not próximately caused by the defendant.

3. Evidence supported a finding that the victim’s death resulted from an unavoidable accident. But evidence also supported a fault-based finding. The jury could have found that Miller was operating his vehicle while under the influence of alcohol to the extent it was less safe for him to drive. If this were so, obviously his reaction time would have been slower than it otherwise would have been. The evidence also authorized findings that Miller failed to take evasive action to avoid hitting Stachur and that he was violating the rules of the road by failing to activate his high-beam headlights. It was for the jury to determine whether, in the absence of the above factors, the decedent’s death could have been avoided. Construed in a light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to find defendant guilty of first degree vehicular homicide beyond a reasonable doubt.

4. Unfortunately, the court erred by not recharging the jury on the issue of proximate cause.

During deliberations, the jury sent a note to the court posing the following question: “If we determine that the defendant was in fact DUI, then is he guilty of counts 1 or 2 by virtue of the fact that it is being determined that he was DUI. (Space) Need clear explanation of reasonable doubt.”

In answering the second inquiry, the court proposed to re-read the charges on presumption of innocence, burden of proof and reasonable doubt. As to the first, the court proposed simply to re-read the statutory definition of homicide by vehicle in the first degree without redefining DUI. Miller requested the jury also be recharged on proximate cause, to wit: “and that the State has the burden of proving beyond a reasonable doubt that defendant’s conduct of driving under the influence was in fact the proximate cause of the victim’s death.” The court gave this instruction during its general charge immediately following the separate charge that “the State has the burden of proving beyond a reasonable doubt that the defendant is guilty of driving under the influence.” No clarification was given of the legal term “proximate cause.” As to the recharge, no additional explanatory instructions were requested or given.

The prosecuting attorney objected to the request on recharge on the ground this would confuse the issues. The court responded that “[fit’s not an unreasonable request . . . but it’s sort of a defendant beneficial charge. Once I start giving defendant beneficial charges, I start getting some — I think to be fair — I need to start giving some State beneficial charges. And I think I’ll just stick with what I said I would do.” The court then asked if there was anything else desired by either party, which was responded to in the negative, and the jury returned.

The court cautioned the jury not to emphasize the recharge but to take the recharge together with the charge “as a whole, as one body of law applicable to the case.” In the recharge, the court then instructed the jury that

[a] person who, without malice aforethought, causes the death of another person, through the violation of Code Section 40-6-391, commits the offense of homicide by vehicle in the first degree. Code Section 40-6-391 is the code section which defines the offense of driving under the influence of alcohol. No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

The jury’s first question was whether the defendant could be convicted of vehicular homicide based solely on a finding that he violated the DUI statute. The court’s recharge of the vehicular homicide statute without more only repeated what the jury had already been told and had not understood. The significance of causation as the connecting link, causation in the legal sense of proximate cause, was not explained.

[W]hen the jury requests the court to recharge them on any point, it is the court’s duty to do so. It is further the obligation of the court to instruct the jury in plain, clear language. Even when the charge relies on the exact language of the law, it must be calculated to enlighten rather than confuse the jury.

Miller asserted essentially two defenses. One was that he had not violated the DUI statute, in that the detected intoxication was brought about after the collision. The other defense was that his conduct was not, in any event, the proximate cause of the victim’s death. The court’s recharge may have left the jury with the “mistaken notion that a defendant’s intoxicated driving need only be a cause or an indirect cause [of the victim’s death],” since the vehicular homicide statute does not by its express terms employ the term or embrace the concept of proximate cause. At worst, the recharge may have had the effect of depriving Miller of a major defense. At best, it was confusing. The court’s admonition to the jury to interpret the recharge and general charge as a whole did not eliminate the confusion, because the recharge was merely a repetition of part of the original charge and the jury showed by its request for additional instructions that it did not comprehend the general charge on this pivotal particular. For the foregoing reasons, the court’s refusal to recharge the jury on proximate cause constituted harmful error requiring the grant of a new trial.

5. As there was no evidence Miller was speeding, the trial court did not err in refusing to give his request to charge the jury on speeding as a predicate to the lesser included offense of second degree vehicular homicide under OCGA § 40-6-393 (b).

Decided February 22, 1999

Reconsideration denied March 9, 1999

Raymon D. Burns, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

6. Nor did the court err in denying Miller’s motion to suppress the blood test results, as the evidence authorized a reasonable juror to find that the collision occurred sometime after 2:00 a.m. and that the blood test was administered at or about 5:00 a.m. and thus within three hours after Miller had driven his car. The jury was not compelled to find that the alcohol consumption occurred after the collision. This issue is not moot given the unresolved question of whether the results of the blood test would be admissible at any retrial.

7. The remaining issues are moot.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       180 Ga. App. 723, 725 (4) (350 SE2d 314) (1986).

       191 Ga. App. 87, 89 (3) (381 SE2d 45) (1989).

        Shelton v. State, 214 Ga. App. 166, 168 (2) (447 SE2d 115) (1994).

       The majority of courts in other states which have been presented with the question have held that their vehicular homicide statutes require proof of a causal connection only between the defendant’s act of driving and the victim’s death rather than between the defendant’s intoxication and the death. See State v. Wong, 125 N.H. 610, 486 A2d 262 (1984); Felske v. State, 706 P2d 257 (Wyo. 1985); State v. Woodman, 12 Kan. App. 2d 110, 735 P2d 1102 (1987); Magaw v. State, 537 S2d 564 (Fla. 1989); People v. Garner, 781 P2d 87 (Colo. 1989); Commonwealth v. Shoup, 620 A2d 15 (Pa. Super. 1993); State v. Heft, 185 Wis.2d 288, 517 NW2d 494 (1994); State v. Rivas, 126 Wash.2d 443, 896 P2d 57 (1995). But see State v. Ring, 233 Neb. 720, 447 NW2d 908 (1989); Anderson v. State, 774 SW2d 733 (Tex. App. 1989); State v. Copes, 566 S2d 652 (La. App. 1990).

       See Johnson v. State, 170 Ga. App. 433, 434.(1) (317 SE2d 213) (1984) and cits. Accord State v. Rivas, supra, 896 P2d at 62, citing 1 LaFave & Scott, Substantive Criminal Law, § 3.12, p. 390 (1986).

        Cain v. State, 55 Ga. App. 376, 381-382 (190 SE 371) (1937).

       Id. at 382.

       See Trippe v. State, 73 Ga. App. 322, 323 (1) (36 SE2d 121) (1945).

       See OCGA §§ 40-8-20; 40-8-31.

        Scott v. State, 230 Ga. App. 522, 524 (1) (496 SE2d 494) (1998).

       (Citations and punctuation omitted.) Kimmel v. State, 261 Ga. 332, 334-335 (3) (404 SE2d 436) (1991).

       (Emphasis in original.) Mote v. State, 212 Ga. App. 551, 554 (2) (442 SE2d 799) (1994) (Beasley, P. J., concurring specially).

       See Herrin v. State, 229 Ga. App. 260, 262 (2) (493 SE2d 634) (1997) (when jury requests additional instructions upon a particular phase of the case, court is under a duty to instruct them in a manner so as to enlighten rather than confuse them); Fowler v. Gorrell, 148 Ga. App. 573, 577 (2) (b) (251 SE2d 819) (1978) (where the trial court fails to give the benefit of a theory of the defense sustained by the evidence, a new trial must be granted).

       OCGA § 40-6-391 (a) (5) states: “A person shall not drive or be in actual physical control of any moving vehicle while: The person’s alcohol concentration is 0.10 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.”