text:
    75487.
    CARPET TRANSPORT, INC. v. DIXIE TRUCK TIRE COMPANY.
    (363 SE2d 840)
   Deen, Presiding Judge.

Appellee Dixie Truck Tire Company (Dixie) filed suit on February 14, 1986, against appellant Carpet Transport, seeking to recover on an open account which was due and payable on April 10, 1985, plus interest and expenses of litigation for bad faith and stubborn litigiousness. It was undisputed that on February 28, 1985, appellant received delivery of 280 tractor-trailer truck tires and 300 tire tubes from Dixie having a total value of $47,845, but that no part of the agreed-upon purchase price had been paid. Under the warranty agreement applicable to the sales transaction between the parties, Dixie issued credits for defective tires previously sold to appellant; in the instant case a set-off of $6,314.63 was credited, leaving a balance owing of $41,519.37. Appellant claimed in response to demands for payment on the invoice that it was entitled to more than the amount of set-off computed by Dixie and refused to make any payments for the tires ordered, delivered, and accepted.

At trial Dixie submitted documentary evidence and testimony of witnesses who personally inspected the defective tires, establishing the amount due for the tires ordered and delivered as well as the basis for the credit given for the defective tires returned for adjustment. Appellant prior to litigation had claimed that it was owed a $9,000 set-off in addition to the $6,314.63 already credited by Dixie. In defensive pleadings and at the pretrial conference appellant asserted that it was entitled to $21,000 in total set-offs, admitting that $20,000 was owed under the contract. In its statement of the case submitted to the court for reading to the jury, however, appellant contended that it had submitted 183 tires worth $250 each, which should have been adjusted at 100 percent of their value of $250 each, or $45,750. Appellant’s president and co-owner also testified variously at trial that the credits claimed were “right around $40,000”; that $61,000 “sounded right”; and that the correct amount “would be close to $47,000.” Appellant presented no written records or other proof as to the number of tires submitted for adjustment, whether they were qualified for adjustment under the warranty, the type of tires, or the nature of the defects. Although appellant’s president testified that his company bought various types of tires from Dixie over a period of several years, he contended that the 183 tires he claimed were submitted for adjustment were all the most expensive $250 radial tires. His testimony was based primarily on the recollection of the truck driver who unloaded the tires at Dixie, but the driver did not testify. Appellant’s president further conceded that some of the tires submitted for credit could have been purchased from another source. Nor could Dixie produce any record of the number of tires received from Carpet Transport, the number of tires sent to Goodyear to be adjusted, or the number of tires disposed of without authorization.

The trial court denied Dixie’s motion for directed verdict and submitted all issues to the jury, which returned a verdict for the full amount claimed on the account and as pre-judgment interest, costs, expenses of litigation, and attorney fees. This appeal is from the denial of appellant’s motion for new trial. Dixie has filed a motion to impose a penalty for frivolous appeal pursuant to OCGA § 5-6-6.

1. Appellant contends that the trial court erred in submitting the issue of attorney fees to the jury because OCGA § 13-6-11 negates the possibility of such an award where there is a bona fide controversy to be decided between the parties. At issue is whether a contracting party is entitled to legally adjudicate a dispute between two entities, i.e., whether there was an oral guarantee from an officer of a firm soliciting business. “Generally, expenses of litigation — including attorney fees, are not allowed as a part of damages unless the defendant has acted in bad faith, has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense. [OCGA § 13-6-11].” Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 383 (277 SE2d 753) (1981). A plaintiff has the burden of establishing one of these three bases before a jury can award attorney fees, and on appeal there must be some evidence of one of the three statutory conditions before an appellate court should approve the award. Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (278 SE2d 33) (1981). Although appellee alleged all three bases for attorney fees in the complaint, the record is devoid of any evidence of bad faith.

When bad faith is not in issue and only the elements of stubborn litigiousness or unnecessary trouble and expense are relied upon, “if a bona fide controversy clearly exists between the parties [cit.] ... attorney fees are not authorized under OCGA § 13-6-11 ... if the evidence shows that ‘a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue.” Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 225 (312 SE2d 386) (1983). “ ‘ “A mere refusal to pay a disputed claim is not the equivalent of stubborn litigiousness” ’ ” (Ideal Pool, supra at 384; Williams, supra at 225), and “is not sufficient to award attorney fees.” Allen v. Brackett, 165 Ga. App. 415, 421 (3) (301 SE2d 486) (1983). Accord General Refractories Co. v. Rogers, 240 Ga. 228, 235 (2) (239 SE2d 795) (1977); Gordon v. Ogden, 154 Ga. App. 641, 642 (2) (269 SE2d 499) (1980).

Justice Logan Bleckley, in Tift v. Towns, 63 Ga. 237, 242, expressed the judicial tenet succinctly: “No man is bound to forego litigation at the expense of yielding rights apparently well founded. . . . Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.” Here, appellant’s president swore that Dixie guaranteed to adjust every tire not used for more than one year, but failed to abide by this agreement. Dixie denied that there was such an agreement. Both parties admitted that a large number of tires were submitted to Dixie for adjustment and that the tires not adjusted were not returned to the owner, appellant. The Goodyear area manager said the tire carcasses had a value of up to $90 each. No credit was given to Carpet Transport for the wrongful disposal of this property, which had been returned by Goodyear in the past. We find that these facts sufficiently establish a bona fide controversy as to. the amount due to Dixie that Carpet Transport should not be penalized for litigating the issue. For that reason, we reverse the portion of the trial court’s judgment awarding attorney fees, and decline to impose a penalty pursuant to OCGA § 5-6-6 for appealing a justiciable issue.

2. Appellant’s complaint concerning the failure of the trial court to give its requested charge on the definition of “bad faith” cannot be sustained. The only exception made was a blanket objection “to the judge’s not giving everything [appellant’s attorney] requested,” without any statement of the grounds for the objection as required by OCGA § 5-5-24 (a). Green v. Dillard, 176 Ga. App. 574 (2) (337 SE2d 55) (1985).

Decided December 3, 1987.

Charles G. Price, for appellant.

William H. Boling, Jr., for appellee.

3. Appellant urges that the trial court improperly curtailed introduction of evidence showing the set-off value of tires it had purchased from Dixie on other occasions and been allowed an adjustment. Appellant made no proffer to show what this evidence would have been or how it was relevant to the set-off value of the tires under litigation. Although it is now argued that appellant’s witness would have testified that there were similar problems with the other tires which had been accepted for adjustment, such evidence is nevertheless irrelevant. “In a controversy between two [parties] regarding a given subject-matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct, transaction is irrelevant.” (Citations and punctuation omitted.) Haggins v. Employees' Retirement System, 255 Ga. 352, 355 (3) (338 SE2d 1) (1986); Weil Bros.-Cotton v. T.E.A., 181 Ga. App. 122, 127 (2) (351 SE2d 670) (1986).

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    75530.
    GARDNER v. THE STATE.
    (363 SE2d 843)
   Banke, Presiding Judge.

Gardner was convicted of driving under the influence, aggravated assault, and criminal trespass. On appeal, he contends that the trial court erred in failing to instruct the jury on the elements of the offense of criminal trespass. Held:

“The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation.” State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). (Emphasis supplied.) Since the record reveals that no charge on the elements of criminal trespass was given, it follows that the appellant’s conviction of that offense must be reversed.

Decided December 3, 1987.

Julian Webb, for appellant.

Charles M. Ferguson, District Attorney, J. Robert Smith, David H. Moseley, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    75610.
    OSBY v. THE STATE.
    (363 SE2d 611)
   Deen, Presiding Judge.

Walter Osby was convicted of rape, two counts of aggravated sodomy, sodomy, false imprisonment, and simple battery. On appeal he asserts the general grounds and further claims that the trial court erred in stating in the presence of the jury that his written statement was given voluntarily after he was given his Miranda warnings.

1. The victim testified that she met the defendant and his brother, David Grissom, at a party. As she was leaving the party with her sister, she heard shots and hid behind some cars with Grissom. She became separated from her sister and asked Grissom to help locate her and for a ride home. She got into Grissom’s truck between the two men and they drove around, but. they did not see her sister. Although she asked Grissom to turn into her apartment complex when they drove near it, he kept on driving and asked her to ride with him to Decatur to take his brother home. He stated that he had to come back because he lived in Fairburn. At one point during the trip to Decatur, Grissom stopped to purchase cigarettes, and the victim testified that she was not afraid of the men.

When they arrived at Osby’s residence, he invited her into his house and she agreed to go for just a minute. Shortly thereafter, Grissom disappeared and the victim testified that she heard water running as if he were taking a shower. Osby showed her the house and then began to make advances towards her by attempting to kiss her. When they sat on the sofa, Osby again began to kiss her and started pulling her pants down. She refused his advances, but he became more persistent and succeeded in pulling her pants down and orally sodomizing her. She attempted to get away from him, but he managed to stick his tongue in her anus as she rolled off of the sofa. Grissom then came into the room dressed only in a towel and carried a black cat which he threw into the victim’s lap. Both men then jumped on her and began pulling off her clothing. They carried her into the bedroom, turned on the air conditioner to drown out her protests, and threw her on the bed. Grissom began choking her and put his penis in her mouth while Osby put his penis in her vagina. After about fifteen minutes, Grissom left. Osby, however, continued to have sex with her over several hours and Grissom periodically returned to watch. The victim continued to protest and groan in pain. At one point, Grissom suggested it was time to kill her and then raped her. She noticed a gun between the bed and the nightstand. Osby finally took her into the den to get her clothing, then took her back to the bedroom and wanted to have sex with her again. Finally, at about daybreak, when the men left the bedroom for a few minutes, she hurriedly dressed and jumped out of a second story window. She went to the house next door where she called the police.

Decided December 3, 1987.

John O. Ellis, Jr., for appellant.

Osby’s neighbor corroborated the victim’s story as to the time she appeared at the house, that she stated she had been raped and that she wanted to call the police. One officer testified that it was difficult to get her statement because she was so upset. Another officer testified that doing a consent search, he found a woman’s bra (which was identified as belonging to the victim) in the house, a rifle with a round of ammunition by the bed, and the bed in disarray. An air conditioner was also observed in the bedroom.

Osby gave a statement to the police admitting that he and his brother had sexual intercourse with the victim, but claimed that it was consensual. The attending physician found bruises and scratches on the victim’s left arm and noticed that she was upset. Grissom also made a statement admitting that he had sexual relations with the victim after his brother had sex with her, but he denied having oral sex with her and stating it was time to kill her. He claimed that she became upset when he refused to pay her $50 for her favors.

The credibility of the witnesses is a jury question. Melson v. State, 157 Ga. App. 268 (277 SE2d 284) (1981). There was sufficient evidence presented at trial for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983).

2. As appellant did not raise an objection in the court below as to the trial court’s ruling on the voluntariness of his written statement to the police, the alleged error cannot be addressed for the first time on appeal. Smith v. State, 180 Ga. App. 309 (349 SE2d 4) (1986); Tolbert v. State, 180 Ga. App. 703 (350 SE2d 51) (1986).

Judgment affirmed.

Pope, J., concurs. Birdsong, C. J., concurs in the judgment only.

Robert E. Wilson, District Attorney, Susan Brooks, Barbara Conroy, Assistant District Attorneys, for appellee.


text:
    75664.
    NGUYEN et al. v. MANLEY et al.
    (363 SE2d 613)
   Deen, Presiding Judge.

On November 30, 1982, the appellants, Kim Dung Nguyen, Thai Nguyen, and Dung Dang, leased premises from the appellees for a five-year term, for the purposes of operating a delicatessen that the appellants had recently purchased. Because the previous owners had operated the delicatessen on essentially a “take-out only” basis, the appellants had tables and booths installed so that customers could eat on the premises. A few months later, the Fulton County Health Department inspected the premises and advised the appellants that two rest rooms were required if food was to be served on the premises. The appellees, however, denied the appellants’ request for permission to install a second rest room. The appellants continued to operate the delicatessen, but eventually the business failed in 1985.

Subsequently, the appellants commenced this action against the appellees, seeking, inter alia, damages for refusing to consent to the construction of a second rest room. The trial court granted summary judgment for the appellees on this count, and this appeal resulted. Held.

The lease agreement in this case provided that the “[t]enant shall not create any openings in the roof or exterior walls, nor make any structural alterations, additions or improvements to the demised premises without prior written consent of landlord.” As noted by the trial court, with that unambiguous language the appellees reserved the absolute right to control structural alterations by consenting or not consenting. In declining to impose a requirement of reasonableness in withholding consent, where the lease did not provide for such, the trial court found inapposite Stern's Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586 (337 SE2d 29) (1985), wherein this court noted a modern trend of requiring reasonableness even where no clause expressly requires that consent not be unreasonably withheld, because (1) Stern's Gallery involved a request to sublease, not structural alterations, and (2) Stern's Gallery actually did not adopt or reject that trend because the lease provision in question required reasonableness in withholding consent. We agree with the trial court.

Judgment affirmed.

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

Decided December 3, 1987.

Jere F. Wood, for appellants.

Howard M. Lessinger, Neil S. Morrisroe, for appellees.


author: Benham, Judge.

text:
    74413.
    FLOWERY BRANCH NURSING CENTER v. AMERICAN CENTENNIAL INSURANCE COMPANY et al.
    (363 SE2d 580)
   Benham, Judge.

Appellee American Centennial Insurance Company (“American”) was the initial workers’ compensation insurer for appellant Flowery Branch Nursing Center (“Flowery Branch”), American having filed a Form “A” Report of Coverage with the State Board of Workers’ Compensation on November 14, 1983, effective October 16, 1983. On December 2, 1983, Georgia Insurance Company filed with the board a Form “A” Report of Coverage, showing an effective date of November 1, 1983. On September 10, 1984, Georgia Insurance filed with the board a Form “B” card showing an insurance cancellation date of September 17, 1984. American never filed a Form “B.” On May 11, 1985, appellee Lila Martin, an employee of Flowery Branch, suffered an injury which resulted in disability on June 7, 1985. She applied for workers’ compensation, and the ALJ who heard the case found that her injury was compensable but that her employer, Flowery Branch, had no coverage with either named insurer on the date of claimant’s injury. The ALJ held that under Board Rule 126, Georgia Insurance’s Form “A” superseded the coverage previously in effect with American and Georgia Insurance’s Form “B” terminated its coverage, and thus Flowery Branch was required to pay compensation to its employee. The full board reviewed the case and found that American was still on the risk at the time of appellee Martin’s injury, since it never filed a Form “B” terminating its coverage, and so it, not Flowery Branch, was liable for compensation. American appealed to the superior court, which reinstated the original decision by the ALJ. We granted Flowery Branch’s motion for discretionary appeal.

Appellant contends that the superior court erred in finding that appellee was not on the risk even though it never filed a Form “B” to show termination of its insurance coverage. We agree. At the time in question, Rule 126 of the Rules and Regulations of the State Board of Workers’ Compensation (OCGA Appendix, Vol. 26) read, in pertinent part, as follows: “(a) Every employer or its insurer shall file with the board a separate report for each insured employer on a Report of Coverage, Form “A” (RB-25), on or before the effective date of coverage . . . (d) The filing of a Report of Cancellation, Form “B” (RB-26), is evidence that coverage is terminated, effective not less than 15 days after filing, except where the provisions of Title 33 provide for an earlier effective date.”

Decided November 17, 1987

Rehearing denied December 4, 1987

Thomas C. Holcomb, Jeffrey E. Hickcox, for appellant.

Richard G. Farnsworth, John M. Williams, Benjamin H. Terry, Douglas E. Smith, for appellees.

This court has interpreted subsection (d) of the Rule to mean that the “filing of [Form “B”] is required to give notice to the Board when coverage ceases for any reason ... [so that the Board maintains its] awareness of the insured or uninsured status of each employer to which the workers’ compensation statute applies. The notice requirements of Rule [126] are essential in this regard.” Lumbermens &c. Cas. Co. v. Haynes, 163 Ga. App. 288 (2) (293 SE2d 744) (1982). The case before us is controlled by Lumbermens &c. Cas Co., supra; Maryland Cas. Co. v. Walls, 184 Ga. App. 267 (361 SE2d 253) (1987); OCB Co./&c. Systems v. Wiley, 178 Ga. App. 101 (341 SE2d 870) (1986); International Indem. Co. v. White, 174 Ga. App. 773 (331 SE2d 37) (1985); and Hanover Ins. Co. v. Sharpe, 148 Ga. App. 195 (250 SE2d 815) (1978).

The ALJ ruled incorrectly on the coverage issue, and the superior court erred in substituting the ALJ’s judgment for that of the full board. We reverse.

Judgment reversed.

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


text:
    75010.
    FORREST v. PEACOCK.
    (363 SE2d 581)
   Banke, Presiding Judge.

This litigation began as an eviction proceeding filed by the appellee landlord against the appellant, as tenant holding over, on May 13, 1985. On May 22, 1985, the appellant filed an answer and counterclaim, and on that same date the trial court issued a rule nisi scheduling a hearing for June 5th on the issue of whether she should be required to pay rent into the registry of the court pending final adjudication of the appellee’s claim for possession. However, on May 28,1985, before any hearing whatever had taken place in the case, the appellee mooted the dispossessory claim by personally retaking possession of the premises in the aftermath of a disturbance which had occurred there, involving the appellant and an individual to whom she had evidently sublet the premises. The following day, the appellant amended her counterclaim to assert a claim for damages for unlawful eviction in the amount of 2.8 million dollars. The subsequent trial of the counterclaim before a jury resulted in a verdict in favor of the appellee landlord. This appeal is from the denial of the appellant’s motion for new trial on the general grounds. Held:

Decided November 17, 1987

Rehearing denied December 4, 1987

Thomas L. Washburn III, for appellant.

E. Wycliffe Orr, for appellee.

A landlord who, without resort to legal process, forcibly ejects a tenant from the rented premises is liable to the tenant in trespass, although the tenant was holding over beyond his term, was in arrears for rent, and had received legal notice to quit. See Entelman v. Hagood, 95 Ga. 390 (1) (22 SE 545) (1894); Teston v. Teston, 135 Ga. App. 321 (2) (217 SE2d 498) (1975).

We must agree with the appellant that the evidence presented at trial established conclusively and without dispute that the appellee had forcibly ejected the appellant from the premises against her will and without legal process. Indeed the appellee admitted that the appellant had locked herself inside the house, with the result that “we had to bust the windows to get in . . . the house and get the furniture and belongings out on the street.” The appellee also testified that as he and others working under his direction were proceeding witn the eviction, the appellant “almost became hysterical, and maybe did a couple of times, and refused to leave the one bedroom at the front of the house . . . .” Under such circumstances, the fact that the appellant ultimately walked out of the house under her own power, without having to be carried out, clearly does not, as urged by the appellee, warrant an inference that she vacated the premises voluntarily and by consent. Whether or not the appellant was actually residing on the premises at the time of the eviction is irrelevant. The issue is whether the appellee re-took possession of the premises from her against her will and without benefit of legal process, and the evidence unequivocally establishes that he did so. We accordingly hold that the trial court erred in denying the appellant’s motion for new trial on the general grounds.

Judgment reversed.

Carley and Benham, JJ., concur.


text:
    75035.
    NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY et al. v. BAILEY.
    (363 SE2d 586)
   Benham, Judge.

Appellee Shenelby Bailey and Robert E. Stewart paid a premium to appellant North Carolina Mutual Life Insurance Company (hereinafter “insurance company”) on March 9, 1984, for family insurance coverage which included an application for a life insurance policy on Robert E. Stewart. The premium was computed by the soliciting agent at $44.78, and a conditional receipt was given to appellee in return for payment of the premium. The policy was to be delivered to the insured in four to five weeks from March 9, 1984. After the passage of several months, appellee, having received no communication from the insurance company since the date of premium payment, contacted the insurance company and was told that the premium had been miscalculated and that an additional $2.80 was required. The amount was never paid, and Robert E. Stewart died on July 10, 1984, in a work-site accident. When the insurance company refused appellee’s demand for payment on the policy, she filed suit. Both sides moved for summary judgment, the trial court granted partial summary judgment to appellee on the issue of coverage, and this appeal by the insurance company followed.

1. Appellant contends that the trial court erred in granting summary judgment to appellee on the issue of coverage. The application for insurance in the case sub judice contained the following language: “It is further agreed that the Company shall incur no liability under this application until it has been received and approved at the Home Office of the Company and the premium actually paid to and accepted by the Company and the policy has been issued and delivered, all during the lifetime and good health of the Proposed Insured; except that if the full first premium is paid in advance to an authorized agent of the Company while the Proposed Insured is in good health and the receipt on the form attached hereto delivered to the Applicant, then the liability of the Company shall be as stated in the receipt.”

The receipt read, in pertinent part, as follows: “1. If a full first premium in accordance with the published rates of the Company for the form of the policy applied for has been paid at the time of making such application, and such payment is indicated thereon, the insurance subject to the terms and conditions of the policy contract applied for and in use by the Company at this date, shall take effect on the date hereof if non-medical or if medical examination is required, from date of completion of the examination, provided the application is completed as agreed therein and provided the applicant is on this date a risk acceptable to the Company under its rules, limits and standards, on the plan, for the amount and at the rate of premium declared paid, and provided further that the applicant is on this date in good health; otherwise, the payment evidenced hereby shall be returned upon demand and surrender of this receipt.”

“The general rule is that an application for insurance, even with the concurrent prepayment of premiums, creates no binding contract of insurance until the insurer manifests its acceptance. [Cits.]” Atkinson v. American &c. Life Ins. Co., 165 Ga. App. 102 (1) (299 SE2d 600) (1983). Accord Thomas v. Union &c. Ins. Co., 168 Ga. App. 267 (308 SE2d 609) (1983), aff'd, 252 Ga. 259 (1) (312 SE2d 333) (1984). An exception to the general rule exists where, as here, the conditional receipt provided that coverage would begin “[if] a full first premium in accordance with the published rates of the Company for the form of policy applied for has been paid at the time of making such application.” See Jones v. North Car. &c. Ins. Co., 122 Ga. App. 383 (177 SE2d 199) (1970). Unquestionably, an intended full premium of $44.78 was quoted by the agent and collected before the conditional receipt was given. Citing Thomas v. Union &c. Ins. Co., supra, appellant contends that the premium collected was at variance with the “published rates” and therefore no coverage existed. This argument is of no moment since in Thomas, there was a specific provision in the application which stated that “[n]o insurance shall take effect until a policy is issued and delivered to the Owner and the full premium paid . . .” Id. at 267. There was no conditional receipt with language similar to the language here.

The situation here is governed by our ruling in Jones v. North Car. &c. Ins. Co., supra, where we found to be binding a conditional receipt identical to the one here. We hereby hold that when, as here, an insurance company conditions coverage upon full payment of the first premium and a premium is quoted and collected by its agent, coverage is effective as of that date even though the amount collected is less than that required by the company’s rate schedule, as long as the amount quoted and collected is not so substantially at variance with the rate schedule as to put a reasonable person on notice as to its inadequacy. Since the difference between the collected and required premium was only $2.80, it was not substantially at variance with the rate schedule. Therefore, the trial court was correct in ruling that, as a matter of law, the conditional receipt constituted a binding contract of insurance. See Guest v. Kennesaw Life &c. Ins. Co., 97 Ga. App. 840 (104 SE2d 633) (1958), in which the partial payment of an annual premium with the policy application was held to be sufficient to cover the insured between the acceptance of the risk and the delivery of the policy.

2. Appellant also contends that the trial court erred in deciding that cancellation of the policy had not taken place; therefore, our analysis does not end here. We must now consider whether conduct subsequent to March 9, 1984, resulted in a cancellation of the policy, and, if so, when did cancellation take place? There is some dispute between the parties as to when and under what circumstances the additional premium of $2.80 was to be paid. There is also some dispute as to exactly what was said by the parties regarding the effect nonpayment of the additional premium would have. However, there is no dispute that the home office of the insurance company did not issue a written rejection of coverage for failure to pay the additional premium until May 1984, and that the rejection, along with the premium refund, was sent to the district office rather than to the insured. The notice of rejection and the refund check were not sent to the insured until after his death on July 10, 1984.

Decided November 19, 1987

Rehearing denied December 4, 1987

Thomas G. Sampson, Myra H. Dixon, for appellants.

Jesse B. Beasley, Jr., for appellee.

The burden is on the party asserting cancellation of an insurance policy to prove it. St. Paul Fire &c. Ins. Co. v. C.I.T. Corp., 55 Ga. App. 101, 103 (189 SE 390) (1937). Where there are ambiguities as to the adequacy of notice, those ambiguities are to be resolved in favor of the insured and against the insurer. New Amsterdam Cas. Co. v. Russell, 102 Ga. App. 597 (2) (117 SE2d 239) (1960). Where there is neither a regulatory nor a policy provision outlining the method of cancellation notice, the notice will be deemed insufficient when it does not positively and unequivocally state that cancellation is taking place. Chambers v. Wash. Nat. Ins. Co., 66 Ga. App. 509, 511 (17 SE2d 899) (1941).

Since no one contends that the agent of the insurance company was designated by the insurer as agent for receiving cancellation, notice to the agent without notifying the policyholder is of no moment and the cancellation is ineffective. See Nat. Union Fire Ins. Co. v. Macon &c. Lumber Co., 24 Ga. App. 726 (102 SE 180) (1920). See also Union Fire Ins. Co. &c. v. Stone, 141 Ga. App. 49 (152 SE 146) (1929). Even more important is the failure of appellant to return the premium to the insured along with any notice of cancellation. Balboa Ins. Co. v. Hunter, 165 Ga. App. 273 (299 SE2d 91) (1983). Accord Union Fire Ins. Co. &c. v. Stone, supra. Hence, appellant’s enumeration of error is without merit.

3. Appellee’s demand for frivolous appeal damages has no merit.

Judgment affirmed.

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


author: Beasley, Judge. McMurray, Presiding

text:
    75062, 75063.
    CANNON v. LARDNER; and vice versa.
    (363 SE2d 574)
   Beasley, Judge.

Cannon was awarded $4,300 for medical expenses and $1,000 in general damages following an automobile collision with Lardner. She contends on appeal that she was entitled to a new trial for two reasons: one, that the court erroneously admitted her answer over objection on cross-examination as to whether she was wearing her seat belt at the time of the collision; two, that statements by opposing counsel during closing arguments were improper.

Lardner cross-appealed because the court refused to deduct from the verdict the entire amount of medical expenses under the basic personal injury protection coverage of both Cannon’s own insurance and her father’s automobile insurance policy, under which she qualified as an insured.

Case No. 75062

1. Cannon argues that the trial judge should have excluded all testimony concerning whether she was using a seat belt because there is no law requiring her to do so and thus there could be no negligence in failing to use it. Lardner counters that the seat-belt evidence was relevant in regard to the issue of comparative negligence and damages, and therefore was properly admitted. We find no basis for reversal.

Appellant correctly points out that she violated no statute by failing to use the seat belt, as OCGA § 40-8-76 makes the use of safety belts mandatory only for children under the age of four years; and that subsection (d) of the statute expressly provides that any violation of it “shall not constitute negligence per se nor contributory negligence per se.” However, we do not agree that allowing defense counsel to cross-examine her on this issue interjected harmful, prejudicial, irrelevant evidence into the trial which misled the jury by suggesting that she violated some duty the law placed upon her.

Civil law is not always dependent upon the standard of care imposed or defined by statute. Whereas a statutory requirement might make failure to wear a seat belt negligence per se, the common law duty to exercise ordinary care for one’s own safety could authorize a jury to conclude that the standard has been violated by one who fails to use this universally available preventive device when undertaking to drive upon the highways and thereby subject oneself to injury in a potential collision. In Atlanta Coca-Cola &c. Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976), the Supreme Court of Georgia quoted with approval and applied the following principles: “ ‘All drivers of vehicles using the highways are held to the exercise of due care . . . Each driver must exercise ordinary care in the situation in which he finds himself ... In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury.’ ” This evidence was relevant in regard to comparative negligence, rather than contributory negligence, in determining the amount of damages to award as opposed to proximate cause of the collision itself. That is, it was arguably related to the proximate cause of the nature and degree of the injuries.

“The common law doctrine of ‘contributory negligence’ which bars recovery by a plaintiff is not followed in Georgia. [Cit.] The prevailing doctrine in this state is the comparative negligence rule, which holds ‘where there is negligence by both parties which is concurrent and contributes to the injury sued for, a recovery by the plaintiff is not barred, but his damages shall be diminished by an amount proportioned to the amount of fault attributable to him, provided that his fault is less than the defendant’s and that by the exercise of ordinary care he could have avoided the consequences of the defendant’s negligence after it became apparent or in the exercise of ordinary care should have been discovered by the plaintiff.’ [Cit.]” Hester v. Baker, 180 Ga. App. 627, 629 (2) (349 SE2d 834) (1986).

The trial court correctly charged the jury on the law of comparative negligence. See Wright v. Concrete Co., 107 Ga. App. 190 (5) (129 SE2d 351) (1962). No objection was made to the instruction and it was a proper issue for the jury since appellant’s testimony as to whether or not she was exceeding the speed limit at the time of the collision was contradictory. We conclude that evidence of appellant’s use or failure to use seat belts in regard to whether such failure to use them might have contributed to the extent of her injuries was likewise relevant in determining damages. We agree with what was stated in Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352) (1986), a two-judge opinion which did not decide the issue of the propriety of such a charge on the question of damages because a verdict for the defendant was returned in that case: “[M]uch can be said for a legal proposition that the failure to use an available seatbelt, in view of its potential to reduce serious injuries, could be considered by a jury as a matter of negligence by the injured party and as affecting the amount of damages to be recovered. Certainly it would be necessary to show that the actual injuries sustained could have been reduced ... by the use of an available seatbelt.” In Cullen v. Timm, 184 Ga. App. 80 (360 SE2d 745) (1987), the non-wearing of a seat belt by even a passenger was regarded as relevant on the issues of the passenger’s ordinary care, comparative negligence, and assumption of the risk.

In this case appellant alleged that as a result of being struck by appellee’s automobile she “was thrown violently about within her own automobile and so severely jolted and battered as to sustain severe injury to her body.” Since appellant’s speeding and her failure to use her available seat belt were more than likely to have contributed to the severity of her injuries, and thus increase her damages, the trial court correctly allowed the jury to consider her failure to exercise ordinary care in incurring these injuries under the theory of comparative negligence so as to determine an award of damages.

2. That portion of defense counsel’s closing argument to which appellant objected was as follows: “It is for you to decide what is fair to both of these parties. If you make those decisions then, and then you determine that Ms. Cannon was speeding or was exceeding the speed limit and that if she hadn’t been, maybe those injuries wouldn’t have occurred. Maybe she wouldn’t have hit the windshield if she hadn’t been exceeding the 35 miles an hour and reduce that verdict by what amount you think is appropriate to an amount that would be under $10,000, and we ask you to consider that amount as that which would be fair and reasonable to these parties. When they walk away from this courtroom today, that they can go about their business on what is a fair and reasonable verdict. Ms. Cannon can return to school and complete her schooling. Eric Lardner can go back to DeVry Tech, based on such an award, and he can continue his schooling and the parties can. . . .” Appellant’s attorney objected at that point on the ground that such a comment was highly improper and prejudicial.

Although we agree that a remark insinuating that the defendant’s ability to finish his course of studies depended upon whether he could afford an education after paying a large award of damages would be improper, we conclude that the statements here were salvaged by the fact that counsel referred to both the plaintiff and the defendant going back to school. Thus the argument was a plea for a fair and reasonable verdict that would award the appellant sufficiently to compensate for her injuries, suffering and time lost, but at the same time not be unduly punitive and financially burdensome to the appellee to the detriment of his education. In light of what we have previously discussed in regard to the comparative negligence of the parties, that if it were concurrent and contributed to the injury it would be a proper issue for the jury to determine, we cannot say the argument objected to was not based upon any issue in the case or improperly interjected evidence of the financial status of the appellee into the trial. While we recognize that argument which contrasts the financial status of one party with that of another is condemned, the remarks made here referred not so much to financial status as to finishing school and getting on with one’s life, and they included both parties, not just one. “The remark itself ‘did not intelligently reflect the overall financial status of either of the parties .... Under these circumstances the remark was not injurious to [appellant], was not improper, and did not require either cautionary instructions to the jury or a new trial. The peroration in this case comes within the general rule that remarks of counsel while addressing the jury which do not undertake to introduce any material fact not disclosed by the evidence do not constitute improper argument.’ [Cits.]” Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 273-74 (3) (329 SE2d 900) (1985). Accordingly, there was no reversible error.

Case No. 75063

3. Cannon was insured under her own automobile insurance policy for basic PIP and for optional no-fault benefits to cover economic losses exceeding $5,000. She was also an insured under her father’s policy as a resident/relative for basic PIP benefits. Her claim for medical expenses was submitted for payment under her own basic and optional PIP coverage, and she made no claim under her father’s basic PIP coverage. Prior to trial counsel for both parties discussed with the court how the so called “no fault write-off” was to be effected and agreed that the medical expenses portion of the verdict should be reduced by the court. However, the parties could not agree as to the amount by which the verdict should be reduced. After the jury returned a verdict in Cannon’s favor of $4,300 for medical expenses and $1,000 for pain and suffering, the trial judge deducted $2,500 for the no fault write-off, entering judgment for Cannon in the amount of $2,800. Lardner’s cross-appeal contends that because Cannon had available to her basic PIP benefits under both her and her father’s policies, these policies could be “stacked” pursuant to OCGA § 33-34-9 to write off the entire medical expense award, and that the trial court incorrectly refused to do so.

In support of his arguments, Lardner relies upon Nat. Gen. Ins. Co. v. Meeks, 145 Ga. App. 830 (4) (244 SE2d 920) (1978). As Lardner points out, Meeks held (two judges only) that the insured could receive up to a total of $5,000 in basic PIP medical benefits under present OCGA § 33-34-4 (a) (2) (A) and (C), “or such greater amount of coverage as has been purchased on an optional basis as provided [in Code Section 33-34-5,] regardless of the number of insurers providing such benefits or of the number of policies providing such coverage.” Thus, Lardner insists, the trial court failed to follow Meeks in refusing to write off any sums beyond the $2,500 Cannon received under her own coverage, when the additional $1,800 awarded by the verdict could have been recovered under her father’s basic PIP coverage. Cannon asserts that she was not eligible for the excess coverage provided by her father’s policy because she never exhausted her own primary coverage and is entitled to recover from Lardner any amounts received under her optional no-fault coverage. See Hall v. White, 150 Ga. App. 545 (1) (258 SE2d 256) (1979); OCGA § 33-34-5 (a).

We are in agreement with the assessment of Cannon and the trial court in this case. Under the analysis of no-fault insurance law in this state as detailed in Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16 (2) (276 SE2d 78) (1981), Cannon would have to have medical expenses in excess of her policy limit of $50,000 before she became an “insured” and entitled to a claim for benefits under her father’s policy. Since her medical expenses were only $4,300, her primary coverage was not exhausted and she was ineligible to receive benefits under her father’s policy. See Voyager Cas. Ins. Co. v. King, 172 Ga. App. 269 (323 SE2d 4) (1984). Moreover, as determined in Hall v. White, supra at 546, the plaintiff can recover from the tortfeasor those economic losses reimbursed under her optional coverage provided by the purchase of additional PIP. See also McGlohon v. Ogden, 251 Ga. 625 (1) (308 SE2d 541) (1983). Such “collateral source insurance” provided by contract between the plaintiff and her insurer is not material nor relevant to any issues between the plaintiff and the tortfeasor. City Council of Augusta v. Lee, 153 Ga. App. 94 (2) (264 SE2d 683) (1980); McGlohon v. Ogden, supra. The fact that Cannon was also covered by her father’s basic PIP insurance should not provide a windfall for Lardner, the tortfeasor, nor should the tortfeasor be allowed to force her to elect coverage under a third, uninvolved person’s policy. It follows that the trial court correctly reduced the verdict only by the amount allowed under Cannon’s basic PIP insurance.

Judgment affirmed in case no. 75062.

Deen, P. J., and Banke, P. J., concur. Birdsong, C. J., and Sognier, J., concur in the judgment only. McMurray, P. J., Carley, Pope, and Benham, JJ., dissent. Judgment affirmed in case no. 75063. Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Pope, and Benham, JJ., concur. Birdsong, C. J., and Sognier, J., concur in the judgment only.

McMurray, Presiding

Judge, dissenting.

The majority of comparative negligence jurisdictions which have considered the seat belt defense have rejected it. See Franklin v. Gibson, 188 Cal. Rptr. 23, 25 (138 Cal. App.3d 340 (1982)); Schmitzer v. Misener-Bennett Ford, 354 NW2d 336, 339, fn. 3 (135 Mich. App. 350 (1984)). In my view, Georgia should join the ranks of the majority because in the absence of legislation to the contrary, the seat-belt defense is unavailable in this State. Insofar as Cullen v. Timm, 184 Ga. App. 80, 83 (360 SE2d 745), cited by the majority, holds to the contrary, it should be overruled.

“The comparative negligence rule in force in this State is that where there is negligence by both parties which is concurrent and contributes to the injury sued for, a recovery by the plaintiff is not barred, but his damages shall be diminished by an amount proportioned to the amount of fault attributable to him, provided that his fault is less than the defendant’s, and that, by the exercise of ordinary care, he could have avoided the consequences of the defendant’s negligence after it became apparent or in the exercise of ordinary care should have been discovered by the plaintiff. City of Ocilla v. Luke, 28 Ga. App. 234 (110 SE 757).” Rogers v. McKinley, 48 Ga. App. 262, 265 (172 SE 662). This rule is a departure from the common-law doctrine of contributory negligence. Nevertheless, in order to invoke the comparative negligence rule, a defendant must demonstrate negligence on the part of the plaintiff.

Negligence entails the existence of a legal duty; the failure to exercise ordinary care with respect to the duty; and a resulting injury. Patillo v. Thompson, 106 Ga. App. 808, 811, 812 (128 SE2d 656). The existence of a legal duty is an essential element in the negligence formula. If there is no duty, there can be no negligence. Southern R. Co. v. Liley, 75 Ga. App. 489, 493 (43 SE2d 576).

Plaintiff’s failure to use a seat belt cannot be said to be a breach of a legal duty. The use of seat belts is not compulsory in this state. A plaintiff “buckles up” — or fails to “buckle up” — as a matter of course and without regard to particular acts of negligence. This is as it must be. Drivers are not clairvoyant. They are entitled to rely on the presumption that other drivers will not act negligently. See Glynn Plymouth v. Davis, 120 Ga. App. 475, 487 (170 SE2d 848), aff'd 226 Ga. 221 (173 SE2d 691). Thus, a plaintiff has no duty to fasten a seat belt because he or she has no way of knowing that he or she will be exposed to a defendant’s negligence. Rogers v. Johnson, 94 Ga. App. 666, 678 (96 SE2d 285). The inherent difficulty in a contrary “thesis is identifying when [plaintiff’s] failure to ‘buckle up’ became a breach of [her] duty to use ordinary care. Obviously, the breach had to have occurred prior to the accident. To assert that [plaintiff] had a duty to use ordinary care by ‘buckling up’ at some point between entering [her car] and immediately prior to the occurrence of the [accident] imputes to [plaintiff] the anticipation that an accident would occur. But, as a matter of law, [plaintiff] had the right to assume that other drivers would obey traffic laws and use reasonable care.” Schmitzer v. Misener-Bennett Ford, 354 NW2d 336, 340, supra.

In the case sub judice, plaintiff did not know or have a reason to anticipate that defendant would act negligently until immediately before the collision. It cannot be said, therefore, that plaintiff had a legal duty to fasten her seat belt. She had a right to rely on the presumption that defendant would not act negligently.

Assuming, arguendo, that the seat-belt defense is available in Georgia, I would still feel compelled to dissent in this case. “Recent decisions have held that there is no presumption that nonuse of seat belts caused or aggravated a party’s injuries. Consequently, competent expert or other testimony must be submitted which establish that the injuries of a party would have been reduced or minimized if seat belts had been used, or were caused or aggravated by the failure to use a seat belt.” Grobe v. Valley Garbage Svc., 551 P2d 748, 756 (Wash. 1976). No such evidence was presented in this case. Plaintiff was simply asked whether she was wearing a seat belt at the time of the collision. She replied that she was not. Standing alone, this evidence does not show what the consequences to plaintiff would have been if she had been wearing a seat belt. In the absence of expert opinion concerning such consequences, evidence of seat belt use or non-use should be deemed inadmissible. Grobe v. Valley Garbage Svc., 551 P2d 748, 756, supra; Franklin v. Gibson, 188 Cal.Rptr. 23, 24, supra.

Decided November 16, 1987

Rehearing denied December 4, 1987

Ralph E. Hughes, for appellant.

Frank E. Jenkins III, Mark A. Barber, for appellee.

In sum, in my view the trial court erred in admitting evidence of plaintiff’s failure to use a seat belt. Moreover, I am of the opinion that the error was harmful, requiring a new trial. The evidence was irrelevant and prejudicial. Placek v. City of Sterling Heights, 217 NW2d 900, 901, 902 (Mich. App. 1974). “We have no way of knowing what consideration the jury attributed to plaintiff’s failure to wear her seat belt ... We cannot assume that the testimony elicited did not improperly influence them in their decision ...” Placek v. City of Sterling Heights, 217 NW2d 901, 902, supra.

The judgment of the trial court should be reversed as to Case No. 75062.

I am authorized to state that Judge Carley, Judge Pope, and Judge Benham join in this dissent.


author: Pope, Judge.

text:
    75095.
    GWINNETT FEDERAL SAVINGS & LOAN ASSOCIATION v. CITY OF BUFORD et al.
    (363 SE2d 597)
   Pope, Judge.

Plaintiff Gwinnett Federal Savings & Loan Association brought an action demanding a refund for a portion of the bank share taxes paid to defendant City of Buford for the tax years 1981 through 1983. Summary judgment was granted to defendant on the ground the action was barred by the applicable statute of limitation. Plaintiff appeals.

Before addressing the three enumerations of error set forth by plaintiff bank, we shall set forth the pertinent facts of the case in the context of other appeals which have been brought concerning the bank share tax. Prior to its repeal, the Georgia bank share tax act, OCGA § 48-6-90 (repealed by Ga. L. 1983, p. 1350, § 5), permitted a tax upon the fair market value of the shares of a bank. To the extent the tax was assessed against the value of federal securities held by a bank, the tax was found by the United States Supreme Court to violate United States Rev. Stat. § 3701, 31 USC § 742. Bartow County Bank v. Bartow County Bd. of Tax Assessors, 463 U. S. 1221 (103 SC 3563, 77 LE2d 1402) (1983) (vacated and remanded for further consideration in light of the holding in American Bank &c. Co. v. Dallas County, 463 U. S. 855 (103 SC 3369, 77 LE2d 1072) (1983)). On remand of the above-cited case from the United States Supreme Court, the Georgia Supreme Court approved a pro rata formula for exempting federal securities from the tax by permitting a deduction for only that portion of federal securities properly attributable to the assets of a bank as opposed to an absolute deduction from net worth for all federal securities, including those attributable to the bank’s liabilities. Bartow County Bank v. Bartow County Bd. of Tax Assessors, 251 Ga. 831 (312 SE2d 102) (1984).

While one of the parties to the Bartow County Bank case appealed to the United States Supreme Court for a second time, plaintiff in the case now before us notified the City of Buford of its intent to claim a refund for bank share taxes paid for 1981 through 1983. By letter dated November 1, 1984, a representative of plaintiff bank requested the city to send forms and special instructions, if any, for filing a refund claim. In response, by letter dated November 15, 1984 the city attorney noted the resolution of the appeal to the United States Supreme Court was “directly linked to any refund request on behalf of Gwinnett Federal.” Nevertheless, the demand for refund was denied.

On November 27, 1984 the bank provided the city with computations for the claimed refund. While the bank expressed its intent to rely on the proportional method of computing the refund, as approved by the Georgia Supreme Court, it also set forth as an alternative the refund which it claimed would be due under an absolute deduction of all federal securities. Again, by letter dated December 3, 1984 the city attorney acknowledged the appeal then pending before the United States Supreme Court but, nevertheless, denied the bank’s refund claim.

On March 19, 1985 the United States Supreme Court approved the proportional formula set forth by the Georgia Supreme Court for exempting federal securities from the Georgia bank share tax. First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U. S. 583 (105 SC 1516, 84 LE2d 535) (1985). On January 13, 1986 plaintiff bank renewed its request for a refund. The action which forms the basis for this appeal was filed with the trial court on April 14, 1986.

1. No action for a tax refund may be commenced after the expiration of one year from the date a timely claim for refund is denied. OCGA § 48-5-380 (c). In this case, plaintiff’s action was filed more than one year after the city’s two written denials in November and December of 1984. Plaintiff argues its cause of action did not accrue until March of 1985 when the United States Supreme Court approved the proportional method of computing tax exemption for federal securities from the Georgia bank shares tax. Therefore, as its first enumeration of error, plaintiff asserts the applicable period of limitation had not expired when it filed its action.

The holding of the United States Supreme Court in First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U. S. 583, supra, did not create a cause of action for a tax refund. It merely affirmed the formula articulated by the Georgia Supreme Court for calculating taxes due under the former Georgia bank shares tax act. If plaintiff had a valid claim for refund, which we do not here address, that claim was created in 1983 when the United States Supreme Court found the Georgia bank shares tax violated federal law. It was the 1983 ruling of the United States Supreme Court in Bartow County Bank v. Bartow County Bd. of Tax Assessors, 463 U. S. 1221, supra, which prompted plaintiff to assert its claim for a refund. Pursuant to OCGA § 48-5-380 (b), a claim for tax refund must be submitted to the governing authority within three years after the date the tax was paid. The fallacy of plaintiff’s argument that the right to bring a claim for refund was not created until 1985 is illustrated by the fact plaintiff would be precluded from claiming a refund for 1981 and 1982 if it had first brought its claim in 1985.

2. The one-year period of limitation for filing an action for a tax refund may be extended by agreement in writing between the taxpayer and the governing authority imposing the tax. OCGA § 48-5-380 (c). As its second enumeration of error, plaintiff argues the correspondence from the city attorney in response to plaintiff’s claims created an issue of fact as to whether the city had agreed to extend the period of limitation for bringing an action against it. In letters dated November 15 and December 3, 1984, the city attorney acknowledged the issue of how to calculate the exemption or deduction for federal securities was the subject of an appeal then pending before the United States Supreme Court. Despite the controversy over how the tax should be calculated, the city flatly denied plaintiff’s claim for a refund in both letters. These letters did not create an issue of fact as to whether the city agreed to extend the period of limitation for filing an action for refund.

Decided November 23, 1987

Rehearing denied December 4, 1987

Anthony O. L. Powell, for appellant.

Walter M. Britt, for appellees.

3. We find no merit in plaintiffs third enumeration of error, in which it argues that the trial court failed to consider the purpose of the applicable statute of limitation and failed to apply the “principles of justice” to the facts of this case.

Judgment affirmed.

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


author: Carley, Judge. Beasley, Judge,

text:
    74390.
    VAUGHN v. CABLE EAST POINT, INC. et al.
    (363 SE2d 639)
   Carley, Judge.

Appellant brought suit against appellee and others seeking damages for false arrest and false imprisonment. Pursuant to OCGA § 9-11-37 (d), appellee moved for dismissal of the action with prejudice and the award of reasonable costs, including attorney’s fees, caused by appellant’s alleged failure to comply with discovery procedures. Prior to any ruling on appellee’s motion, appellant voluntarily dismissed her complaint without prejudice. Subsequent to the voluntary dismissal, the trial court entered an award of $500 in attorney’s fees in favor of appellee as reasonable expenses incurred as a result of appellant’s failure to respond to discovery. Appellant filed this direct appeal from the trial court’s order awarding attorney’s fees.

An application for appeal is required in all actions for damages in which the judgment is $2,500 or less. OCGA § 5-6-35 (a) (6). While it is true that the $500 was awarded in this case as a sanction, it is nevertheless a “judgment” in favor of appellee in an amount less than $2,500. “As we read the statute, it applies to all judgments for $2,500 or less that arise from an action for damages. Since the suit filed by [appellant] was an action for damages and since this judgment was entered in that action, we find inescapable the conclusion that OCGA § 5-6-35 (a) (6) is applicable. It necessarily follows that [appellant’s] failure to invoke the discretion of this court by an application pursuant to OCGA § 5-6-35 requires that this appeal be dismissed. [Cit.]” Gardner v. Villa Monte Homes, 173 Ga. App. 896 (328 SE2d 565) (1985).

Appeal dismissed.

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

Beasley, Judge,

dissenting.

Although this is a direct appeal involving $500, OCGA § 5-6-35 (a) (6) with its $2,500 jurisdictional requirement is not applicable because the $500 sum was a sanction under OCGA § 9-11-37 and thus did not fall within the category of damages contemplated by OCGA § 5-6-35 (a) (6). The categories of cases which are statutorily deprived of direct appeal status should be strictly construed because the device limits the traditional right of a losing party to review of the trial court’s decision given generally. OCGA § 5-6-33 (a) (1) provides the general right: “Either party in any civil case . . . may appeal from any . . . judgment, decision, or decree. . . .” OCGA § 5-6-35 (a) carves out exceptions to the right. Thus, in accordance with the rules of statutory construction, OCGA § 1-3-1 (a), the exception should not be extended beyond its terms by way of implication. Gibbons v. Md. Cas. Co., 114 Ga. App. 788, 795, fn. 1 (152 SE2d 815) (1966).

The award here was not a part of the damages sought in the action, nor a judgment imposed as the result of a factfinder’s consideration of action, as the action itself was voluntarily dismissed. Instead, it was a court-awarded penalty for abuse of the rules governing the pursuit of an action. It was of a different species than the damages contemplated and sought by plaintiff as redress for his cause of action. Given by order of the court, the penalty award made by the court in the exercise of its administrative function was of a different nature than the damages which ordinarily contemplated as being in the judgment. “ ‘A judgment is the final result of pleadings, evidence and law in the case. Blandford & Thornton v. McGehee, 67 Ga. 84, 88 (1881).” City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986).

Compare MTW Investment Co. v. Vanguard Properties Corp., 179 Ga. App. 403, 405 (346 SE2d 575) (1986), aff'd 256 Ga. 318 (349 SE2d 749) (1986). In that case the award, by the factfinder in the trial of the cause of action, was of damages sought as part of the cause of action and arising as part of that cause. They are by statute “a part of the damages,” OCGA § 13-6-11, and are awardable by the factfinder. Thus they were held to be “within the category of ‘damages’ as contemplated by OCGA § 5-6-35 (a) (6), requiring an application to appeal in all actions in which the judgment is $2,500 or less.” (Emphasis supplied.) MTW Investment Co., supra at 405.

It appears that the appeal is properly before us and should be dealt with on its merits.

I am authorized to state that Presiding Judge McMurray and Judge Sognier join in this dissent.

Decided December 4, 1987.

Charles E. Muskett, for appellant.

Edward A. Kazmarek, for appellees.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74532.
    STAFFORD v. THE STATE.
    (363 SE2d 637)
   McMurray, Presiding Judge.

Defendant appeals his conviction of conspiracy to commit the offense of trafficking in cocaine. Held:

Defendant contends the trial court erred in refusing to conduct an in camera inspection of the tape recorded statements of unindicted conspirators and in refusing to preserve the taped statements for review upon appeal. While the trial court examined a written summary of the statements at issue, defendant specifically requested (at trial following the State’s response to defendant’s general Brady motion) an in camera inspection of the tape recordings. A trial court is required to make an in camera inspection of specific items of evidence or information assertedly discoverable under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215). Therefore, in the case sub judice the trial court was required to comply with the specific request for an in camera inspection of the tape recordings. Tribble v. State, 248 Ga. 274 (280 SE2d 352). In accordance with such cases as Hill v. State, 250 Ga. 164, 165 (2) (295 SE2d 838), and Castillo v. State, 166 Ga. App. 817, 822 (4) (305 SE2d 629), the case sub judice is remanded with direction that the trial court conduct an in camera inspection of the tape recordings at issue. Upon the completion of this procedure by the trial court, defendant may file an out-of-time appeal.

Case remanded with direction.

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

Beasley, Judge,

dissenting.

I respectfully dissent because the Court’s action invites another appeal or, worse still, another trial and appeal based on at least some of the same errors properly raised in this appeal.

Appellant enumerates five errors, one of which is the trial court’s refusal to conduct an in camera inspection of the tape recorded statements to preserve them for appellate review. While I agree that the court erred and should have inspected the items for any discoverable portions, remanding the case for that purpose without ruling on the other enumerations will require defendant to appeal again on those enumerations if the court finds nothing discoverable, adding also that ruling as an additional issue if defendant believes it erroneous as a matter of law. If, on the other hand, the court finds Brady-discoverable material and orders a new trial at which defendant will have the benefit of this material, it will not cure all of the other alleged errors asserted currently, and some of them will likely recur, requiring another appeal raising them again.

Consider the enumerations: the first is that conspiracy to traffic in cocaine merged with the completed substantive offense of trafficking in cocaine, as a matter of fact based on the evidence. If appellant is correct, a new trial ordered by the trial court after an in camera inspection would be a waste of time (the first took three days) because a conviction could not stand. If the trial court did not order a new trial after an in camera inspection, appellant would again have to appeal to get a ruling on this enumeration. The third possibility is that appellant’s enumeration lacks merit; if that is the case, a ruling would eliminate that issue.

The second enumeration is that evidence of flight during arrest on an unrelated charge was erroneously admitted. If appellant is correct, a new trial ordered by the trial court after an in camera inspection would likely repeat the error because it had not been ruled inadmissible by this Court. If a new trial was not ordered, appellant would again have to appeal to get a ruling. If the evidence was admissible, we should say so and eliminate that issue without another appeal being necessary.

The third enumeration complains of the denial of a continuance to locate a subpoenaed witness. Although a new trial ordered by the trial court after the in camera inspection would render this moot, the opposite would require another appeal to achieve the appellate ruling to which Stafford is presently entitled. If he is wrong, we should so rule in order to obviate that second appeal on the same question.

The fifth and last enumeration is that the evidence was not sufficient to prove guilt beyond a reasonable doubt. If this is true, then the remand is totally unnecessary because the conviction will have to be reversed regardless of the discoverability of material in the taped statements. Again, consideration of the question is unavoidable and should be resolved now instead of months or years from now.

We are governed by OCGA § 5-6-30, which states the purpose of the Appellate Practice Act. We are compelled to construe it liberally “so as to bring about a decision on the merits of every case appealed to avoid dismissal of any case or refusal to consider any points raised therein,” except as referred to in the Act. The posture and nature of the enumerations urged here fit into no exception provided. This imperative to decide the issues properly raised is illustrated by the Act. For example, certain methods are given for achieving decisions on the merits despite technical impediments in OCGA § 5-6-48.

Decided December 4, 1987.

H. Gibbs Flanders, Jr., for appellant.

Beverly B. Hayes, District Attorney, William T. McBroom, Assistant District Attorney, for appellee.

In addition, although the Supreme Court of Georgia does not make our rules, we are not immune from the spirit of the Constitution which requires that court rules “shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” Ga. Const. 1983, Art. VI, Sec. IX, Par. I. That very paragraph starts out: “The judicial system shall be administered as provided in this Paragraph.” We, as a part of it, should seek finality at the earliest stage of criminal proceedings possible.


author: Beasley, Judge. Deen, Presiding Judge, Benham, Judge,

text:
    74537.
    REESE v. CLAYTON COUNTY et al.
    (363 SE2d 618)
   Beasley, Judge.

Reese appeals from the granting of summary judgment to all defendants (Clayton County, the sheriff, and two deputies) on her two-count complaint alleging false arrest and false imprisonment.

In June 1981, a bad check warrant was issued in Fayette County naming “Gloria Ann Reese” as the defendant. The warrant was then sent to Clayton County to be executed. On September 22,1981, plaintiff Gloria Anita Reese was arrested and taken into custody by the defendants. She posted bond and was released the same day. In June 1985, the charges against plaintiff were dismissed, Gloria Ann Reese having been prosecuted for the check. Plaintiff’s complaint was filed in November 1985.

Defendants filed their motion on statute of limitation grounds, alleging that her only cause of action was for false imprisonment and the two-year statute had run. OCGA § 9-3-33. We agree.

Georgia provides three causes of action for redress of injuries suffered due to improper use of the criminal process: OCGA § 51-7-1 (false and malicious arrest), OCGA § 51-7-20 (false imprisonment), and OCGA § 51-7-40 (malicious prosecution). The efficacy of each depends upon the particular facts of a situation and who is being sued. Only one, if any, will lie as to a particular defendant in particular circumstances.

Here, the warrant issued was not for plaintiff but for one “Gloria Ann Reese.” There never having been a warrant for plaintiff, as to her the warrant issued was void. Wilson v. Bonner, 166 Ga. App. 9, 10 (303 SE2d 134) (1983); Massey Stores v. Reeves, 111 Ga. App. 227, 230 (141 SE2d 227) (1965). Her arrest was, in effect, without a warrant and was therefore “unlawful detention,” if anything. See Williams v. Smith, 179 Ga. App. 712 (1) (348 SE2d 50) (1986). That being so, plaintiff’s sole remedy against these defendants (the county and certain of its law enforcement officers) was for false imprisonment. Lovell v. Drake, 60 Ga. App. 325 (3 SE2d 783) (1939); see Gordon v. West, 129 Ga. 532 (1) (59 SE 232) (1907); Courtenay v. Randolph, 125 Ga. App. 581 (1) (188 SE2d 396) (1972); Lowe v. Turner, 115 Ga. App. 503, 506 (2) (154 SE2d 792) (1967); Smith v. Embry, 103 Ga. App. 375, 377 (2) (119 SE2d 45) (1961).

The only essential elements for false imprisonment are (1) detention and (2) the unlawfulness thereof. OCGA § 51-7-20; Burrow v. K-Mart Corp., 166 Ga. App. 284, 287 (3) (304 SE2d 460) (1983). The action must be brought within two years of its accrual, OCGA § 9-3-33, which is from the release from imprisonment. Meyers v. Glover, 152 Ga. App. 679, 680 (2) (263 SE2d 539) (1979) (overruled as to malicious arrest only, which does require as an element the cessation of the underlying prosecution, in McCord v. Jones, 168 Ga. App. 891 (311 SE2d 209) (1983)). Since plaintiff was released on September 22, 1981, her action filed on November 19, 1985 was barred by the statute of limitation.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Carley and Pope, JJ., concur. Deen, P. J., concurs specially. Birdsong, C. J., Sognier and Benham, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

The anomaly in this case is that under Smith v. Embry, 103 Ga. App. 375 (119 SE2d 45) (1961), both the majority and dissenting opinions could be correct. In Smith v. Embry at 377, this court stated that “[i]f the plaintiff was arrested and prosecuted under a valid warrant, the action is malicious prosecution; if wrongfully under a void warrant or no warrant the action is false imprisonment . . . Where the warrant is void, malicious prosecution will not lie.” If, as this court further stated in Smith v. Embry at 378, malicious prosecution and malicious arrest are identical except that malicious prosecution contains the additional element of showing that a prosecution was carried on, it logically follows that malicious arrest similarly will not lie where the warrant is void. Under that rationale, the majority opinion is correct.

Nevertheless, in Smith v. Embry at 378 this court also noted that “[m]alicious arrest or false arrest may be made by virtue either of a valid warrant maliciously and without probable cause ... or unlawfully under a void warrant or without a warrant (Standard Surety &c. Co. v. Johnson, 74 Ga. App. 823, 825 (41 S.E.2d 576).” Taking that language at face value, the dissenting opinion is correct.

That language, however, should not be afforded such value, because it is dictum and because it misrelies upon Standard Surety &c. Co. v. Johnson, wherein this court declined to determine “whether the [warrantless] arrest and imprisonment were separate torts that could be sued for in two counts or were one tort only for which an action for false imprisonment would lie,” id. at 825, because the issue had not been raised in the trial court. In short, that case does not actually support the proposition that false arrest may occur under a void warrant or without a warrant. Additionally, it appears that Blocker v. Clark, 126 Ga. 484 (54 SE 1022) (1906), does not really support the dissent’s position, since that case involves an action for false imprisonment.

I favor the logic and consistency of the rule followed in the majority opinion.

Benham, Judge,

dissenting.

I agree with the majority that the improper use of criminal process may be remedied by civil actions for false or malicious arrest, false imprisonment, and malicious prosecution. I also agree that the two-year statute of limitation on the claim of false imprisonment, which statute commenced on September 22, 1981, the day appellant was released from custody, had expired by the time she filed this lawsuit on November 19,1985. OCGA § 9-3-33; Meyers v. Glover, 152 Ga. App. 679 (2) (263 SE2d 539) (1979), overruled on other grounds, McCord v. Jones, 168 Ga. App. 891 (311 SE2d 209) (1983). However, the consensus dissolves here because the majority concludes that appellant’s only cause of action was for false imprisonment. I, on the other hand, believe that appellant’s complaint stated a valid cause of action for false or malicious arrest, and that the two-year statute of limitation, which commenced upon the termination of the criminal proceedings against appellant (June 28, 1985), had not expired when appellant filed suit. OCGA § 9-3-33; McCord v. Jones, supra at 893.

Appellant Gloria Anita Reese was arrested at her workplace pursuant to a warrant issued for Gloria Ann Reese. The majority, citing Wilson v. Bonner, 166 Ga. App. 9 (303 SE2d 134) (1983); and Massey Stores v. Reeves, 111 Ga. App. 227 (141 SE2d 227) (1965), states that the warrant was void as to appellant because it was not issued for her. Wilson and Massey Stores are cases wherein the plaintiffs, wrongfully arrested pursuant to warrants due to mistakes in their identity by the law enforcement officers serving the warrants, filed lawsuits alleging malicious prosecution against the person or entity who had obtained the arrest warrants, i.e., the prosecutor. In each case, the court held that the suit for malicious prosecution based upon the warrants would not lie against the prosecutor because no warrant had issued on the prosecutor’s accusation for the arrest of the person bringing the malicious prosecution action. Massey Stores v. Reeves, supra at 230; Wilson v. Bonner, supra at 10-11. “The fact that the defendants, with probable cause, obtained a warrant meant for another person having the identical name of plaintiff cannot be expanded to infer that the defendant intended maliciously for just any person of that name or this plaintiff to be prosecuted for the offense.” Massey Stores v. Reeves, supra at 228. It was in this context that the court declared the warrants void as to the plaintiffs.

Decided December 4, 1987.

Philip L. Ruppert, for appellant.

Gary H. Brakefield, James E. Ervin, George E. Glaze, for appellees.

The case before us concerns allegations of false arrest, not malicious prosecution. An action for false arrest may be directed against the prosecutor who maliciously obtained the warrant, or the police officer who negligently executed the warrant against the wrong person. See Smith v. Embry, 103 Ga. App. 375 (3) (119 SE2d 45) (1961); McCord v. Jones, supra; Standard Surety &c. Co. v. Johnson, 74 Ga. App. 823 (41 SE2d 576) (1947). If a person is arrested due to mistaken identity, the prosecutor may be liable to the person unlawfully arrested if a mistake is made as to the name inserted in the warrant. Blocker v. Clark, 126 Ga. 484, 488 (54 SE 1022) (1906). The arresting officer may be liable if he fails to exercise “due diligence in determining whether the person arrested bears the name specified in the warrant. ...” Id. If appellant had brought suit against the person who had obtained the warrant, I would be inclined to hold that such a suit would not lie because no warrant had issued on the prosecutor’s accusation for the arrest of appellant. See Massey Stores v. Reeves, supra; Wilson v. Bonner, supra. However, appellant has filed suit against the officers who arrested her, contending she was arrested despite her protestations that her name was not that which appeared on the warrant. In a false arrest action against the arresting officer, it is the negligence of the arresting officer for which recompense is sought. The warrant, as far as the arresting officer is concerned, is valid on its face. Whether he exercised due diligence in determining whether appellant bore the name appearing on the valid warrant is for a jury to determine.

I would reverse the judgment of the trial court.

I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this dissent.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    74540.
    ROGERS v. THE STATE.
    (363 SE2d 846)
   Beasley, Judge.

Appellant was convicted and sentenced on a four-count recidivist indictment for theft by taking of a 1985 Dodge Caravan on November 27, 1984 (OCGA § 16-8-2), driving without a license, concealing the identity of a motor vehicle by possessing and using a State of Alabama Dealer’s Tag for the purpose of misrepresenting and concealing identity of the Caravan (OCGA § 40-2-5), and giving a false name to a law enforcement officer with the intent of misleading the officer as to his identity.

1. The first contention we deal with is that the conviction of theft by taking was not supported by the evidence. Viewed in favor of the verdict, it showed as follows. In late 1984, commercial pilot Myron Ramsdale’s employer leased a 1985 Dodge Caravan which had a dealer drive-out tag imprinted with the name “Neal Pope.” On October 4, 1984, Ramsdale put the van in an airport hangar at DeKalb Peachtree Airport, closed the hangar doors, and placed a heavy duty padlock on them. Two days later, Ramsdale returned and upon opening the hangar, he discovered that the van had been stolen and reported this to the police.

On November 27 a College Park police officer observed a Dodge Caravan going in and out of parking lots at one o’clock in the morning. It bore an Alabama dealer’s tag. Prior to joining the local police force, the officer had been a policeman in Birmingham, Alabama, and knew that Alabama dealer tags are to be used only for transportation purposes during business hours. He decided to stop the van, pulled it over, and asked defendant for his driver’s license. Defendant responded that he left his license at home and identified himself as “Michael L. Scott.” When the officer asked about the dealer’s tag, defendant stated that he bought the van in Alabama a few weeks previously and that the salesperson gave the dealer’s tag to him. Unpersuaded, the officer placed defendant under arrest for driving without a license and using an improper tag.

During an inventory search, defendant’s social security card was found. Confronted with the discrepancy between the name appearing on the social security card and the name which he gave the officer, defendant stated that Michael L. Scott was the name he used before he was married.

Subsequently, it was determined that the van was stolen and defendant was charged with its theft.

At trial, defendant testified that on the night in question his automobile, an old Firebird, broke down on the interstate highway, that he walked 4-V2 miles to his sister’s apartment and borrowed her friend Michael L. Scott’s van, went and fixed his own car, and was returning the van to Scott, whom he did not know. Scott could not be found to testify, either by defendant himself or by his sister. According to defendant, his sister was also unavailable to testify, because of a doctor’s appointment. He also testified that the police officer did not ask him his name when the van was stopped but instead asked for the name of the owner of the van.

In Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983), the Supreme Court held that recent possession of stolen goods will not automatically support a conviction for burglary or theft under the Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), standard. It stated: “Although there is still validity to the long-established rule that proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the burglary of the goods, proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary. In Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981), we recognized the following: The Ulster County, New York v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777) (1979) more-likely-than-not test is the appropriate one to employ in determining the Due-Process validity of allowing the factfinder to presume or infer an ‘ultimate’ or ‘essential element’ fact from an ‘evidentiary’ or ‘basic’ fact; under this test, it is rational to allow the factfinder to infer that the defendant is guilty of burglary based on proof of his recent, unexplained possession of stolen goods; however, if the only evidence supporting the conviction is the evidence giving rise to the inference or presumption, then under Jackson v. Virginia, such evidence must establish the offense beyond a reasonable doubt in order to be sufficient to support the conviction. 248 Ga., supra at p. 56.”

In the case before us, defendant was found in sole possession of a stolen motor vehicle less than two months after the theft, giving rise to the inference that defendant committed the theft. Recent possession of the stolen van was not the only evidence that defendant was the thief who took the van and keys, or participated as a party in the taking, from the padlocked hangar.

Defendant gave two versions of its source, one at arrest and one at trial. The explanation to the police officer who stopped him, that he bought the van weeks earlier in Alabama, did not add up, and he abandoned that story. The fact that his initial encounter with the police while in possession of the van prompted a fictitious tale is affirmative supporting evidence of guilt. The fact that he gave a false name on that occasion in an effort to hide his identity is further affirmative supporting evidence of guilt. So is the fact that he concealed the identity of the van.

But even that is not all. As stated previously, at trial the defendant testified to a whole new explanation for his possession, which the jury was authorized to find incredible. In the first place, if it had been true, there would have been no reason to make up a false story when stopped by the police.

This testimony, given in waiver of the right to remain silent and to not incriminate himself, became affirmative evidence of guilt because of its implausibility. This is not a case of “unexplained” possession but rather of explained possession where the explanation is not believed. See Findley v. State, 69 Ga. App. 410 (25 SE2d 717) (1943); Godbee v. State, 58 Ga. App. 412 (198 SE 800) (1938).

The black hole created by the two inconsistent renditions of the source of the stolen vehicle which defendant was in possession of, was thus another positive fact that the jury was authorized to take into account. Three explanations of its source were presented in this case. The first was abandoned by defendant before he testified. The second was arguably manufactured and apparently rejected by the jury, which decides credibility. It being a fact that defendant obtained possession of the victim’s van at some time and place, this left the third explanation, based on a reasonable inference from all of what the jury heard, that it was defendant who obtained the van from the hangar in which it had been stored.

Recent possession (see Mathis v. State, 104 Ga. App. 190, 192 (2) (121 SE2d 267) (1961)), coupled with all of the other circumstances (see Walden v. State, 83 Ga. App. 231, 232 (3) (63 SE2d 232) (1951); Nesbit v. State, 71 Ga. App. 744, 746 (2) (32 SE2d 207) (1944)) shown by the totality of the evidence in the case, supported the conviction of theft by taking of the motor vehicle.

2. Contrary to defendant’s contention, the evidence supports his conviction upon count 3 (concealing the identity of a motor vehicle) of the indictment. OCGA § 40-2-5 provides: “It shall be unlawful to buy, steal, sell, receive, dispose of, conceal, possess, or use any vehicle license plate upon or in conjunction with the possession of any such vehicle except the vehicle for which the plate was issued, for the purpose of concealing or misrepresenting the identity of any vehicle which is required to bear a license plate.” (Emphasis supplied.) The jury was authorized to find that defendant used a license plate upon a vehicle for which the plate was not issued for the purpose of concealing or misrepresenting the identity of the vehicle beyond a reasonable doubt. See generally Walker v. State, 130 Ga. App. 860, 864 (4) (205 SE2d 49) (1974).

3. Defendant contends the police officer violated his Fourth Amendment rights when he stopped the van so that the ensuing interrogation of defendant was tainted. As this issue was not raised in the trial court, it will not be considered on appeal. See Moss v. State, 159 Ga. App. 317, 319 (283 SE2d 275) (1981).

4. In cross-examining defendant, the assistant district attorney asked whether he recalled “testifying in this court before this Judge with [his] attorney present?” When defendant replied that he did, the assistant district attorney asked whether he remembered being questioned by the trial court about borrowing the van. At that point, defendant interposed an objection and the jury was excused. The basis of the objection was that the assistant district attorney obviously was making reference to a guilty plea hearing and that that was prejudicial to defendant. After colloquy outside the presence of the jury, the trial court agreed with defendant’s position and the matter was not pursued further by the state. Defendant did not make a move for a mistrial and no request for further relief was made.

Decided December 4, 1987.

K. Van Banke, for appellant.

Robert E. Keller, District Attorney, Deborah Benefield, Assistant District Attorney, for appellee.

Defendant asserts the assistant district attorney’s line of questioning was prejudicial and contributed to the jury’s verdict. Since defendant’s objection was sustained and no further relief was requested, defendant’s assertion presents nothing for review on appeal. Smith v. State, 172 Ga. App. 6 (1) (321 SE2d 771) (1984).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Pope and Ben-ham, JJ., concur. McMurray, P. J., Carley and Sognier, JJ., concur in Divisions 2, 3, and 4. McMurray, P. J., Carley and Sognier, JJ., dissent in Division 1. Banke, P. J., disqualified.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent with regard to Division 1 of the majority opinion. The evidence adduced at trial shows only that defendant was caught driving a motor vehicle nearly two months after it was stolen, that the identity of the vehicle was concealed by a license plate which was not issued for the vehicle, and that defendant gave fictitious information about the source of the vehicle. Although this evidence may have established the offense of theft by receiving stolen property, it was not sufficient to support a conviction for theft by taking beyond a reasonable doubt. Bankston v. State, 251 Ga. 730 (309 SE2d 369).

I am authorized to state Judge Carley and Judge Sognier join in this dissent.


author: Sognier, Judge.

text:
    75155.
    HOWARD v. THE STATE.
    (363 SE2d 621)
   Sognier, Judge.

Appellant was convicted of a violation of the Georgia Controlled Substances Act by possessing, with intent to distribute, cocaine, and he appeals.

1. Appellant contends the evidence is not sufficient to support the verdict. The evidence disclosed that while appellant was driving home he was stopped by the police about 10:00 p.m. after running a red light. Upon learning that there was an outstanding warrant against appellant for probation violation (non-payment of a fine), he was arrested and placed in the back seat of the police car. Appellant agreed to let Roderick Miller, a passenger, take appellant’s car to his uncle, but asked one of the police officers to get his (appellant’s) cigarettes from the console of his car. As the officer approached the car he saw Miller frantically putting something between the passenger seat and the console. Miller was ordered out of the car and while his identification was being checked the officer reached into the car to get appellant’s cigarettes. The officer saw two packets on the floor of the passenger side of the car which he suspected contained cocaine. Miller was arrested, and a search of the car disclosed eight more packets of suspected cocaine stuck between the passenger seat and the console. All of the packets had either “25” or “50” marked on them, indicating that the price was either $25 or $50 per packet. Analysis at the State Crime Laboratory confirmed that the substance in the packets was cocaine.

Appellant testified that he had no knowledge of the cocaine, and although he had been convicted previously for drug offenses, he had not been involved with drugs for several years. Two witnesses for appellant testified that they had been at the home of appellant’s uncle with several other men, including the co-defendant, Miller, and saw Miller engage in a drug transaction. Miller denied possession of the drugs, and testified that when appellant saw the police car behind him, he threw the packets of cocaine at Miller and said: “Here, take these drugs. I am going to jail.” Miller also testified that he panicked and tried to get rid of the drugs by putting them under the seat and in between the seat and the console. Appellant and Miller both testified that they had not known each other previously, and appellant was taking Miller home at the request of appellant’s uncle, who was too drunk to drive.

With the exception of Miller’s testimony and the fact that the packets of cocaine were found in appellant’s car, there is no evidence to connect appellant with the drugs. Both police officers testified that they observed appellant and Miller from the time appellant ran the red light, and saw no action by appellant indicating that he transferred the drugs to Miller. Nevertheless, the weight of the evidence and credibility of witnesses are matters for determination by the jury, and this court deals with the sufficiency of the evidence, not its weight. Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634) (1987). We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided December 4, 1987.

Carl P. Greenberg, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, Linda W. Hunter, Assistant District Attorneys, for appellee.

2. Appellant asserts error in the court’s charge to the jury that possession of contraband could be inferred from ownership and control of the automobile in which the contraband was found. Appellant argues that this charge shifted the burden of proof to him by requiring him to testify and deny possession in order to overcome the inference. He also argues that the inference does not apply where other persons had equal access to the car. These arguments are without merit.

Because appellant was the driver of the car in which the contraband was found, an inference was authorized that he had possession of the cocaine. Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985). Thus, the court’s charge was a correct statement of the law under the evidence presented. Further, we pointed out in Robinson that the equal access doctrine does not apply where the defendants are alleged to have joint constructive possession of the contraband, as was the case here.

In regard to appellant’s contention that the charge shifted the burden of persuasion to him, the court charged the jury that the inference as to possession was a rebuttable inference which could be overcome by evidence that had been presented during trial of the case. We have held that a charge couched in similar language (relating to an inference that a person of sound mind and discretion intends the natural and probable consequences of his acts), is permissive, rather than mandatory, and is not burden-shifting. Parks v. State, 180 Ga. App. 31, 32 (3) (348 SE2d 481) (1986). Hence, there was no error in the court’s charge.

Judgment affirmed.

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