text:
    74730.
    MILES v. DEEN.
    (361 SE2d 60)
   Banke, Presiding Judge.

This is an action for interpleader and declaratory relief filed by Baxley State Bank to determine the proper disposition of certain life insurance benefits paid to the bank by Cotton States Life Insurance Company. The bank had received the insurance proceeds by virtue of its status as primary beneficiary of a Cotton States policy covering the life of Herbert L. Deen, Jr. Mr. Deen’s former wife, appellee Adna K. Deen, was designated both as the owner of the policy and as the secondary beneficiary thereunder.

Mr. and Mrs. Deen were divorced while the policy was in force; and, pursuant to a separation agreement which was incorporated into their divorce decree, Mrs. Deen was required to “execute any and all documents which may be necessary for her to convey any and all interest she may have or claim in stocks, bonds, insurance policies, certificates of deposit and life insurance acquired during their marriage. . . .” It is undisputed that Mrs. Deen’s interest in the policy was encompassed by this language; however, she never executed any document conveying her interest therein to the decedent.

Upon Mr. Deen’s death, Cotton States paid Baxley State Bank the $50,000 death benefit due under the policy. After applying a portion of these funds towards an indebtedness Mr. Deen had owed the bank, the bank paid the surplus, in the approximate amount of $45,000, into the registry of the court and filed the present action. Both Mrs. Deen and the appellant herein, who is the executrix of Mr. Deen’s estate, made claim to the money.

The executrix moved for summary judgment, asserting a legal and equitable entitlement to the funds on the basis of the separation agreement and divorce decree. Mrs. Deen opposed the motion on the basis of her affidavit stating that the decedent had told her during his lifetime, at a meeting arranged for the purpose of executing the documents contemplated by the separation agreement and divorce decree, “that the Cotton States insurance policy was ‘owned’ by [her] and that she would retain the ownership of said policy as she had since its inception.” Mrs. Deen further averred that she was entitled to receive “25,000 as a lump-sum property settlement under the terms of the divorce decree but had received only $15,000, and she asserted that the estate consequently had “no standing to attempt to enforce any of the terms of the agreement . . . under the ‘clean-hands doctrine.’ ” The trial court denied the motion for summary judgment, and the executrix filed this appeal. Held:

1. Normally, in order for a written agreement to be modified by a subsequent parol agreement between the parties, the parol agreement must itself be supported by adequate consideration. See Ryder Truck Lines v. Scott, 129 Ga. App. 871 (3) (201 SE2d 672) (1973); Giant Peanut & Grain Co. v. Long Mfg. Co., 129 Ga. App. 685 (201 SE2d 26) (1973). The record in the present case contains no suggestion that the decedent received any consideration in return for his alleged waiver of his right to ownership of the Cotton States policy, nor has it been shown that the parties engaged in any course of conduct which would estop the estate from asserting such failure of consideration in the present action. Compare J. E. M. Enterprises v. Taco Pronto, 145 Ga. App. 573 (1) (244 SE2d 253) (1978).

Decided September 11, 1987.

B. Kaye Katz, for appellant.

Emmett P. Johnson, J. Alexander Johnson, for appellee.

2. Mrs. Deen’s affidavit cannot, in any event, be considered evidence that the decedent in fact made the oral declaration she seeks to attribute to him. “Before a decedent’s declarations may be admitted they must be shown to be necessary and trustworthy — ‘that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered.’ [Cit.]” Belote v. Belote, 167 Ga. App. 8, 10 (5) (306 SE2d 24) (1983). (Emphasis in original.) The necessary guarantee of trustworthiness is missing in this case, as it was in Belote, in that the declarations are offered by the person who stands the most to gain from their admission.

3. The asserted failure of the decedent to complete payment of his property settlement obligation does not establish a defense to the executrix’s claim to the insurance proceeds based on the “clean-hands doctrine.” That doctrine has application only to actions in equity. See generally Morgan v. Wright, 219 Ga. 385 (133 SE2d 341) (1963). Although the executrix’s claim to the insurance proceeds is based on an alleged equitable right of ownership therein, she seeks no equitable remedy but only a money judgment. Consequently, this is not an action in equity. See generally Comstock v. Tarbush, 200 Ga. 320 (37 SE2d 148) (1946). Moreover, it is extremely doubtful that the decedent’s mere failure to pay a lawful debt owed to the appellee could, in and of itself, be considered the type of illegal, immoral, fraudulent, or unconscionable conduct contemplated by the clean-hands doctrine. See generally Tanner v. Wilson, 193 Ga. 211, 215 (17 SE2d 581) (1941). Thus, while Mrs. Deen certainly is entitled to assert a claim against the estate for the $10,000 allegedly still owed her pursuant to the terms of the property settlement, the existence of such a claim does not defeat the estate’s claim to the $45,000 in life insurance proceeds at issue in this action.

4. For the foregoing reasons, we hold that the trial court erred in denying the executrix’s motion for summary judgment.

Judgment reversed.

Carley and Benham, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge. •

license: Public Domain

text:
    74754.
    ATLANTA AIRPORT SHUTTLE et al. v. NOBLE et al.
    (361 SE2d 62)
   Pope, Judge. •

Appellee Noble was formerly an employee of appellants Atlanta Airport Shuttle and Sun Belt Limousine, Inc. Suspecting employee theft, appellants fired Noble and submitted a claim in the amount of $5,000 to the insurance company which had issued an employee fidelity bond. The insurance company paid the claim and then brought a subrogation action against Noble alleging conversion from its insured and praying for recovery of the amount paid under the bond. Noble filed a third-party complaint against appellants for unpaid wages and for indemnity in the event he was found liable to the plaintiff insurance company. The trial court dismissed the third-party claim for unpaid wages. This interlocutory appeal arises from the trial court’s denial of appellants’ motion to strike the third-party claim for indemnity against plaintiff’s complaint.

A defendant may implead as a third-party defendant one “who is or may be liable to him for all or part of the plaintiff’s claim against him.” OCGA § 9-11-14 (a). “ ‘(I)mpleader is proper only when a right to relief exists under the applicable substantive law.’ Wright & Miller, Federal Practice and Procedure: Civil § 1446, p. 248.” Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 647 (191 SE2d 632) (1972). Noble’s third-party complaint does not state the ground upon which he claims he is entitled to indemnity for plaintiff’s claims. In fact, there exists no ground upon which Noble would be entitled to such relief. Appellee would be liable to plaintiff insurance company only if he is found to have converted appellants’ (his former employer’s) funds. “Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another, hostile to [the owner’s] rights, an act of dominion over personal property inconsistent with [the owner’s] rights, or an unauthorized appropriation.” McGlamory v. Marcum, 118 Ga. App. 516 (1) (164 SE2d 274) (1968). The very finding which would make Noble liable to plaintiff insurance company would preclude any recovery from appellants for indemnity. The victim of conversion has no duty to indemnify the thief for a taking of the victim’s own property.

If Noble contends he was wrongfully accused of conversion, then he may have some other claim against appellants. However, this would not provide him with a claim for indemnity for conversion. If he contends the funds which he is accused of taking were lost as a result of appellants’ own negligence or wrongful acts, then this may provide him with a defense to plaintiffs allegation of conversion but, again, it would not provide him with a claim for indemnity from appellants. In that event, “[t]he thrust of the instant third-party complaint [would constitute] an impermissible tender of substitute defendants.” Brabham v. Brown, 147 Ga. App. 766, 767 (250 SE2d 495) (1978). It is not necessary for appellants to be brought in as parties to the action to present the defense that it was appellants themselves, and not he, who misappropriated the missing funds. The subpoena power of the trial court may be employed to summon witnesses and/ or business records.

Decided September 11, 1987.

Bret L. Block, Gary M. Goldsmith, for appellants.

Ronald W. Parnell, L. Paul Cobb, Jr., for appellees.

For the foregoing reasons, we find Noble’s third-party complaint against appellants fails to state a claim upon which relief may be granted.

Judgment reversed.

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

       While appellants contend they are separate entities and that Noble was the employee only of Atlanta Airport Shuttle, for the sake of simplicity in the appeal they have referred to themselves as a single entity.


author: Birdsong, Chief Judge.

text:
    74776.
    MILLER v. THE STATE.
    (361 SE2d 63)
   Birdsong, Chief Judge.

Appellant was convicted of burglary and aggravated assault with the intent to commit murder. The evidence showed that the victim returned to her hotel room at approximately 10:30 in the evening only to find a man standing in her bathroom with a rope in his hands stretched from shoulder to shoulder. The victim screamed and the perpetrator ran past her and out of the room. After appellant’s arrest, the victim identified him from a photographic lineup. Appellant appeals his conviction enumerating two errors. Held:

1. Appellant contends it was error for the trial court to deny his motion for mistrial. During his opening statement, the District Attorney made reference to the fact that appellant had “allegedly harassed people at the hotel and had to be removed by security guards” three days after the crime took place. This incident led a hotel employee to discuss appellant as a possible suspect with police.

Appellant made no objection or motion for mistrial at the time the remarks were made. The record indicates that appellant not only waited until the close of the District Attorney’s opening statement, but he waited until after his own opening statement and after the State had called its first witness to make his motion for a mistrial. “A motion for mistrial not made contemporaneously with the alleged misconduct is not timely. Bennett v. State, 165 Ga. App. 600 (3) (302 SE2d 367).” Robinson v. State, 180 Ga. App. 43, 51 (5) (348 SE2d 662). Therefore, this enumeration of error cannot be addressed on appeal.

Decided September 11, 1987.

Calvin A. Leipold, Jr., for appellant.

2. In his second enumeration of error, appellant contends the trial court erred in admitting a statement he made to the police that it was obvious whoever was in the victim’s room that night “was going to kill her and then he was going to rape her.” The statement was made after appellant had invoked his right to counsel during his preliminary hearing. Appellant maintains this statement was admitted in violation of Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378).

Once the accused has invoked his right to counsel, “ ‘courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U. S. at 485, 486, n. 9, 101 SCt., at 1885, n. 9.’ Smith v. Illinois, [469] U. S. [91] (105 SC 490 at 492-93, 83 LE2d 488).” Hall v. State, 255 Ga. 267, 270 (1) (336 SE2d 812).

First, it is clear that appellant initiated the communication with the police which resulted in the statement in question. After appellant’s preliminary hearing, he indicated he “didn’t quite understand his charges and what was going on” and wanted to talk about the situation. Appellant was in no way pressured or coerced into making further statements.

Second, the evidence shows that appellant was cognizant of his right to counsel, having obtained a continuance at the preliminary hearing until an attorney could be appointed to represent him. He subsequently initiated dialogue with the police without the slightest hope of benefit or fear of punishment. Thus, the totality of the circumstances indicates a knowing and intelligent relinquishment of the right he had previously invoked. Widdowson v. State, 171 Ga. App. 134, 137 (1) (318 SE2d 820); Golden v. State, 163 Ga. App. 629, 631 (2) (295 SE2d 144).

“[T]he trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous.” Short v. State, 256 Ga. 165, 167 (3) (345 SE2d 340). The evidence adequately supports the trial court’s finding that appellant knowingly and intelligently waived the right he had invoked.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Robert E. Wilson, District Attorney, Susan Brooks, Thomas S. Clegg, Assistant District Attorneys, for appellee.


author: Carley, Judge.

text:
    74778.
    LAWSON v. THE STATE.
    (361 SE2d 210)
   Carley, Judge.

Appellant was indicted for selling cocaine in violation of the Georgia Controlled Substances Act. The jury returned a guilty verdict and appellant appeals from the judgment of conviction and sentence entered thereon. All enumerations of error relate to the sufficiency of the evidence to authorize his conviction as against his entrapment defense.

“In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. OCGA § 16-3-25. . . . [Cits.]” Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984).

An agent of the Georgia Bureau of Investigation testified that, while accompanied by a confidential informant, he had purchased cocaine from appellant; Under the agent’s testimony, he had merely afforded appellant the opportunity to commit the offense and appellant had readily availed himself of that opportunity. Appellant testified in his own defense. Appellant’s version of the events differed from the agent’s and, as to his predisposition to commit the crime, was exculpatory. Because the confidential informant was never called as a witness for the State to rebut appellant’s testimony, he “claims that the evidence demanded a finding of entrapment. Contrary to that contention, however, the appellant’s testimony concerning his lack of predisposition hardly went uncontradicted. . . . The appellant’s testimony certainly raised the defense of entrapment, but it did not demand a finding of such. [Cits.] ... In this case, the issue of whether the [S]tate impermissibly encouraged the appellant to evil was properly submitted to the jury, and the evidence authorized a rational trier of fact to find beyond a reasonable doubt that the appellant had not been entrapped.” Pierce v. State, 180 Ga. App. 847, 848-49 (2) (350 SE2d 781) (1986). See also Wilson v. State, 181 Ga. App. 337, 338 (2) (352 SE2d 189) (1986). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided September 11, 1987.

Johnny H. Butcher, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    74488.
    COX et al. v. FILLINGIM et al.
    (361 SE2d 65)
   Banke, Presiding Judge.

Acting in reliance on OCGA § 9-2-61 (a), the appellants brought this renewal action reasserting a medical malpractice claim which they had previously filed against the appellees and then voluntarily dismissed. The trial court granted summary judgment to the appellees based upon the appellants’ failure to pay in a timely manner all the accrued costs due in the prior action. This appeal followed. Held:

1. The appellants have filed a motion seeking to supplement the record on appeal. Where a party seeks to have the record on appeal supplemented, it is incumbent on him to follow the procedures set forth in OCGA § 5-6-41 (f). “ ‘When this is not done, there is nothing for the appellate court to review.’ [Cits.]” Vaughn v. State, 173 Ga. App. 716, 719 (327 SE2d 747) (1985). The appellants’ motion is therefore denied.

2. Georgia law requires payment of all the accrued costs of the prior action as a condition precedent to filing a renewal action following a voluntary dismissal. OCGA § 9-11-41 (d); Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). “[I]f costs are not paid prior to filing then the second suit is not a valid pending action. [Cit.]” Couch v. Wallace, 249 Ga. 568, 569 (292 SE2d 405) (1982). Non-payment of the costs due in the prior action has been held to be an amendable defect only if the existence of such costs remains unknown despite a good-faith inquiry made prior to the filing of the renewal action and if the deficiency is paid “within a reasonable time” after being discovered. Daugherty v. Norville Indus., 174 Ga. App. 89, 91 (329 SE2d 202) (1985).

The appellees submitted the affidavit of a deputy clerk stating that $67 in court costs remained unpaid in the prior action. Although the record shows that the appellants affirmatively sought, before filing the renewal action, to ascertain and pay any unpaid costs due in the prior action, the record further reveals that unlike the plaintiffs in Daugherty, supra, they did not pay the deficiency within a reasonable time after being made aware of it but delayed doing so for more than six months. We consequently hold that the trial court did not err in ruling that the appellants were not entitled to pursue the present action.

Decided September 14, 1987.

William F. Braziel, Jr., for appellants.

M. Brice Ladson, William P. Franklin, Jr., Wiley A. Wasden III, Thomas A. Withers, Wendy W. Williamson, for appellees.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Pope, Judge.

text:
    74536.
    DEPARTMENT OF TRANSPORTATION v. COLEY et al.
    (360 SE2d 924)
   Pope, Judge.

On July 26, 1985 appellant Department of Transportation (DOT) filed its declaration of taking to acquire .007 acres of land, a temporary construction easement, a permanent drainage easement and limited access rights from lands owned by appellees, Robert Coley and Elizabeth Coley, for the purpose of widening and improving U. S. Highway 319. The record shows that the subject property, which is located in Ocilla, Georgia, is bounded on the west by U. S. Highway 319, on the south by Valdosta Avenue and on the east and north by a railroad line. Located on the southern portion of the tract (Parcel 9), which was owned solely by Robert Coley, were Robert Coley’s residence, a rental house and a service station. Elizabeth Coley held a life estate (with the remainder in Robert Coley) on the northern portion of the tract (Parcel 10), and her residence was also located thereon.

Appellant paid $38,310 into the registry of the court as compensation for the property taken and removed the house on Parcel 10 and closed all access from that parcel to U. S. Highway 319. As to Parcel 9, appellant removed the pump island and canopy roof from the service station and closed all access to U. S. Highway 319, except for two driveways located in front of the two houses situated on that tract. On September 13, 1985 appellees filed their notice of appeal in the Superior Court of Irwin County in which they expressed their dissatisfaction with the amount deposited into the registry of the court as the value of the land taken and requested a jury trial. Following same, the jury returned a verdict of $220,000 for Parcel 9 and $23,000 for Parcel 10, and appellant filed this timely appeal.

1. Appellant’s first three enumerations of error concern testimony elicited during appellees’ cross-examination of appellant’s expert witness, Raymond Stone, who was employed by appellant as the design engineer for the project.

(a) The record shows that the first instance complained of concerns the permanent drainage easement acquired by appellant. In response to the question concerning why a 30-inch pipe was necessary for the drainage easement on appellees’ property when the pipe located on the adjacent railroad property was only 24 inches wide, appellant’s expert witness stated: “Well, by the calculations, it will handle it; and we have no jurisdiction on the pipe under the railroad.” No objection was interposed to the expert’s answer and following additional questioning as to the effect of using different sized pipes, appellees’ counsel asked the following question: “Now, you say you have no jurisdiction. You have as much right to go under the railroad property as you’ve got to go and take Mr. Coley’s property, ain’t you?” Appellant objected to the question on the basis that it called for a legal conclusion on the part of the witness. The trial court overruled the objection and the witness responded: “If the pipe caused any problem, we probably would.”

Under the circumstances outlined above, we do not agree with appellant that the admission of the expert’s testimony constituted reversible error. First, we note that the expert, while explaining why a smaller pipe would suffice on the adjoining property but not on appellees’, volunteered the initial remark concerning appellant’s jurisdiction. “No objection was made by appellant to . . ., this testimony which is substantially the same or similar to that later objected to, and the later objection is therefore waived. [Cit.] The testimony of DOT’s own witness, which was not objected to, made relevant the [jurisdiction of DOT over the adjoining property].” Dept. of Transp. v. Brooks, 153 Ga. App. 386, 389 (265 SE2d 610) (1980). Moreover, “relevant and material matters which have first been introduced into evidence by the other party should not be restricted from a thorough and sifting cross-examination. ... As a general rule, it is better that cross-examination should be too free than too much restricted. This is a matter that necessarily belongs to and abides in the discretion of the court. . . .” (Citations and punctuation omitted.) Dept. of Transp. v. Lowery, 163 Ga. App. 114, 115 (291 SE2d 573) (1982). Under the facts present here, we find no abuse of discretion in allowing the complained of testimony; therefore, this enumeration is without merit.

(b) Appellant also alleges that the trial court erred in allowing appellant’s expert to testify concerning whether it would be safe for appellee Elizabeth Coley (or someone, her age) to cross the drainage ditch which would be permanently located on Parcel 10, and argues that said testimony constituted an inadmissible conclusion on the part of the witness. We disagree. As appellant admits, the amount of consequential damages resulting from the placement of said permanent drainage easement was highly contested. It is well established that in condemnation proceedings the “[c]ondemnee [is] entitled to prove every element of consequential damage that [is] relevant. [Cit.] . . . Under the circumstances in this case, the trial court did not err in admitting the evidence objected to since that evidence was relevant and material to the issue of consequential damages to [appellees’] property remaining after the taking. [Cits.]” Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 229 (312 SE2d 344) (1983), aff'd 253 Ga. 150 (317 SE2d 542) (1984). Accordingly, this enumeration affords no basis for reversal.

(c) Appellant also contends that the trial court erred in allowing the expert witness to testify over objection concerning whether it would be more difficult for the Coleys to enter the highway from their house after the project was completed. We agree with appellant that greater difficulty in ingress and egress which is occasioned by a change in traffic patterns is not an appropriate item of damages in proceedings such as this. Dept. of Transp. v. Katz, 169 Ga. App. 310 (2) (312 SE2d 635) (1983). Cf. Dept. of Transp. v. Whitehead, 253 Ga. 150, supra (involving the total elimination of an easement of access). However, in the present case the trial court correctly and completely instructed the jury as to the circumstances in which damages for interference with access rights are appropriate and specifically charged the jury that no damages are recoverable for a change in traffic pattern which results in damage to the public in general. We find that the trial court effectually eliminated any error created by the admission of the irrelevant evidence, and that appellant has failed to show how it has been harmed thereby. See generally Phoenix Ins. Co. v. Gray, 107 Ga. 110 (3) (32 SE 948) (1899); Robinson v. Gray, 22 Ga. App. 25 (1) (95 SE 324) (1918), and cits. This enumeration of error thus affords no basis for reversal. Compare Weaver v. Weaver, 238 Ga. 101 (2) (230 SE2d 886) (1976).

2. Appellant also enumerates as error the admission of testimony showing that Robert Coley’s service station business was the only business affected by the highway project over appellant’s objection that said evidence was irrelevant. “ ‘Any evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. (Cit.) Moreover, where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. (Cits.)’ Kelly v. Floor Bazaar, Inc., 153 Ga. App. 163, 165 (264 SE2d 697) [(1980)]. ‘Even where irrelevant evidence is admitted over timely objection, it affords no cause for a new trial, unless the nature of the evidence is such as reasonably to prejudice the rights of the objecting party. (Cit.)’ [Cits.] [Thus, in the present case] even if the evidence had been irrelevant, appellant failed to carry the burden of proving that the admission of the evidence was unduly prejudicial to its rights. Appellant’s contention is therefore without merit.” (Indention omitted.) Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 546 (309 SE2d 816) (1983).

3. Appellant next posits the argument that the trial court erred in refusing to allow a non-expert witness for appellees to testify if he had heard of the terms of the sale of a service station located within the same area. Our review of the record again shows no merit to appellant’s contention. Rather, the witness was allowed to respond to the following question: “Mr. Tucker, I believe Larry bought that station, the underground tanks and whatever was there by way of equipment, and the land for $45,000. Ain’t that what you heard?” Although the witness was not allowed to testify concerning the details of the conversation concerning the above sale, the record shows that the witness did testify, contrary to appellant’s contention, as to whether he had heard of the terms of said sale; consequently, this enumeration is without merit.

4. Appellant also contends that the trial court erred in admitting evidence of business losses and in instructing the jury on such losses and on the concept of “uniqueness.” “Business losses are recoverable as a separate item only if the property is ‘unique.’ Whether the property is unique is a jury question. The evidence to authorize a jury instruction need not be substantial or direct; it is enough if there is even slight evidence consisting of inferences drawn from the testimony. Since only slight evidence is necessary to authorize a jury charge on the uniqueness of a business and the subsequent recovery of its losses, it would be gross error to . . . prevent any attempt to present such evidence to the jury.” (Citations and punctuation omitted.) Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414, 417 (343 SE2d 497) (1986).

In Dept. of Transp. v. 2.734 Acres of Land, supra, this court examined the “uniqueness” rules enunciated in Housing Auth. of Atlanta v. Troncalli, 111 Ga. App. 515 (142 SE2d 93) (1965); City of Gainesville v. Chambers, 118 Ga. App. 25 (2) (162 SE2d 460) (1968), and Dept. of Transp. v. Eastern Oil Co., 149 Ga. App. 504 (1) (254 SE2d 730) (1979), and their progeny, and found that these “three general rules regarding the uniqueness of a business in a condemnation proceeding have been merged to include all three concepts as independent criteria under one general rule. Only one of the three criteria need be satisfied in order to authorize recovery of business loss damage. It is up to the jury to decide whether enough evidence exists to support the condemnee’s contention that fair market value (if ascertainable at all) does not afford him just and adequate compensation. [Cit.] Since the trial court in the present case charged the jury on all three interpretations of the uniqueness rule and . . . evidence existed for the jury to make a determination using any of the concepts of uniqueness, the charge was proper and the enumeration of error regarding it is therefore without merit. [Cit.]” (Indention omitted.) Dept. of Transp. v. 2.734 Acres, supra at 545; Fulton County v. Winkles, 176 Ga. App. 690 (2) (337 SE2d 453) (1985).

Decided September 14, 1987.

Michael J. Bowers, Attorney General, Glenn Whitley, for appellant.

W. Emory Walters, J. Harvey Davis, for appellees.

5. Lastly appellant contends that the verdict of the jury was excessive. However, because “[tjhere [was] sufficient evidence here, from both expert and non-expert testimony as to the value of the land taken . . . and the consequential damages to the other property, it cannot be said that the verdict was excessive; and . . . the alleged [error] based on excessiveness ... [is without merit].” Georgia Power Co. v. Slappey, 121 Ga. App. 534, 535 (174 SE2d 361) (1970); accord Dept. of Transp. v. Brooks, 153 Ga. App. 386 (1) (265 SE2d 610) (1980). Cf. State Hwy. Dept. v. Chance, 122 Ga. App. 600 (4) (178 SE2d 212) (1970).

Judgment affirmed.

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


text:
    74545.
    TILLMAN v. THE STATE.
    (361 SE2d 66)
   Pope, Judge.

Defendant John Tillman was convicted by a jury of attempted burglary. The evidence adduced at trial shows that at the time of the incident the victim was at home recovering from a serious illness. Upon hearing unusual noises, she proceeded to conduct a room by room search of her house during the course of which she discovered the perpetrator standing in her bathroom. The bathroom window had been broken in and the bathroom floor was covered with glass. The victim threatened defendant with a baseball bat and he fled; she pursued him outside where she observed him running towards a nearby creek. The victim contacted the police and an officer who was familiar with the area drove to a local park where the creek ended. Shortly after the officer arrived, she observed the defendant exiting the creek and running into the park where, based on the description given by the victim, she apprehended the defendant. The officer then returned defendant to the victim’s home, and the victim identified him as the man she had observed standing in her bathroom.

1. Defendant urges the general grounds and argues that the testimony of the victim, who was sick and on medication at the time the incident occurred, was insufficient to convict him. However, it is well settled in this state that “ ‘[i]ssues regarding credibility of witnesses must be resolved solely by the jury.’ ” Davis v. White, 168 Ga. App. 272, 273 (308 SE2d 602) (1983); see also Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Moreover, we have examined the entire record and find the evidence was sufficient to find defendant guilty of the crime charged beyond a reasonable doubt. Richardson v. State, 182 Ga. App. 661 (3) (356 SE2d 725) (1987); Malone v. State, 181 Ga. App. 563 (1) (353 SE2d 60) (1987).

2. Defendant also contends that the trial court erred in denying his motion for continuance and request for appointment of new counsel. The record shows that defendant was originally appointed counsel on November 17, 1986. On Friday, January 2, 1987 his appointed counsel, acting at defendant’s behest, filed a motion stating that defendant had dismissed him as of that date and requested that new counsel be appointed and the case be continued to the next trial term. The trial commenced the following Monday (January 5, 1987), and after the jury was selected defendant renewed his motion and request. The trial court found that the motion was not timely filed and was made as a dilatory tactic and, therefore, denied both defendant’s request for new counsel and his motion for a continuance.

Although it is beyond dispute that a criminal defendant has a constitutional right to be defended by counsel of his own choosing if he is willing and able to employ such counsel, it is also the rule that “ ‘an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.’ Burney v. State, 244 Ga. 33, 35 (257 SE2d 543) (1979); Crawford v. State, 232 Ga. 71 (205 SE2d 276) (1974); Graddy v. State, 135 Ga. App. 69 (217 SE2d 393) (1975). There is nothing in the record to indicate that the trial court’s refusal to dismiss counsel resulted in ineffective assistance of counsel.” Gould v. State, 168 Ga. App. 605, 606 (309 SE2d 888) (1983).

Moreover, a party is not allowed to use the discharge and employment of other counsel as a dilatory tactic in requesting a continuance. Tootle v. State, 135 Ga. App. 840 (5) (219 SE2d 492) (1975). Hence, we find no error in the trial court’s refusal to appoint defendant new counsel or to grant his motion for continuance in order to accomplish same.

3. Lastly defendant contends that the trial court erred in denying his motion to suppress the identification testimony of the victim. The record shows that the trial court denied the motion, which was also filed on January 2, 1987, as being not timely filed and dilatory in nature. We agree with the trial court that pursuant to Uniform Superior Court Rule 31.1 defendant’s motion was not timely filed. Moreover, pretermitting the issue of timeliness, “[t]he totality of the circumstances convinces us that [defendant was] not denied due process by the showup [identification procedure], as there was no substantial likelihood of misidentification of [defendant] by the victim. [Cit.] . . . Accordingly, we find no error in denying [defendant’s] motion to suppress identification testimony.” Wolke v. State, 181 Ga. App. 635, 636 (353 SE2d 827) (1987); see also Hamilton v. State, 162 Ga. App. 116 (2) (290 SE2d 478) (1982); Kemp v. State, 158 Ga. App. 570 (2) (281 SE2d 315) (1981); Daniel v. State, 150 Ga. App. 798 (1) (258 SE2d 604) (1979).

Decided September 14, 1987.

Willis L. Miller III, for appellant.

H. Lamar Cole, District Attorney, Elise B. Ossen, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    74609.
    STALEY et al. v. SOUTHERN GUARANTY INVESTMENT COMPANY et al.
    (361 SE2d 67)
   Beasley, Judge.

Permission for an interlocutory appeal was granted to the plaintiffs, the Staleys, from the denial of their motion for summary judgment. They had sued real estate developers Southern Guaranty Investment Company, Inc., Ganymede, Inc., and Leander, Inc. for default on a promissory note.

Plaintiffs had executed a real estate purchase agreement to buy from defendants a 9.22-acre tract of undeveloped land for $100,000 and had paid $15,017.32 over a period of time. Title was to pass upon full payment. The Staleys refused to continue paying and sought to rescind the agreement and recover the amounts paid, on the purported ground that misrepresentations had been made about the availability of telephone service to the property.

The defendants acquiesced in the rescission and agreed to cancel the purchase agreement. In furtherance of this unraveling of the original transaction, the Staleys executed a quitclaim deed to defendants, which they recorded along with the affidavit of defendants’ president acknowledging cancellation of the purchase agreement. Defendants also, by their president, gave plaintiffs a promissory note for the $15,017.32, payable in twelve months with no interest, and subject to the addition of collection costs including attorney fees.

Defendants did not pay the note. They did, however, subdivide the tract and sold all but one section for a total amount in excess of the $100,000-Staley purchase price. Their defense is that the note was executed under duress and induced by fraud. The asserted particulars are that Mr. Staley threatened to sue defendants for fraud in securing the purchase agreement, as he had done with another developer, that he would publicize the alleged fraud to the radio media, and that he would report to the federal authorities.

1. It is true that duress, as contoured by the law, will allow one to avoid the consequences of entering into a contract under its influence. OCGA § 13-5-6; Tidwell v. Critz, 248 Ga. 201, 203 (282 SE2d 104) (1981); Graham v. Cook, 179 Ga. App. 603, 604 (2) (347 SE2d 623) (1986); Cannon v. Kitchens, 240 Ga. 239, 240 (240 SE2d 78) (1977).

But, going one step farther, “[i]t has (also) long been the law of this state that ‘[w]here the execution of a contract is procured by duress, the person executing it may, after removal of the duress, waive the duress and ratify the contract.’ (Cits.)” Charter Medical &c. Co. v. Ware Manor, 159 Ga. App. 378, 382 (3) (283 SE2d 330) (1981).

Part and parcel of the transaction which included the note, given in lieu of return of the purchase money at that time, was the “cancellation” or termination of the purchase agreement and the obtaining and recording of a quitclaim deed from the Staleys. Defendants did not at any time seek to revive or enforce the purchase agreement but instead acted on its demise by subdividing the tract and reselling the property in smaller units. It is undisputed that they were not under restraint to take this action by the alleged threats. See Monk v. Holden, 186 Ga. 548, 555 (2) (198 SE 697) (1938). The absence of duress in this regard is equivalent to the “removal of duress” which leaves the situation open to a waiver of the duress and ratification of the contract.

Such were the facts in Charter Medical, supra, which involved another multi-part transaction. As in that case, defendants here ratified the rescission by publicly memorializing it and reselling the property, thereby obligating themselves to return the purchase money by honoring the note despite any legally cognizable duress which had precipitated it. Their actions amounted to a waiver of the defense of duress. Augusta Motor Sales Co. v. King, 36 Ga. App. 541 (137 SE 102) (1926).

2. Defendants also claimed fraud on the part of the Staleys, as a defense to the note. Fraud renders contracts voidable. OCGA § 13-5-5. As best as can be discerned from the record, the fraud which is alluded to is that the Staleys gave somewhat preposterous and contrived reasons for wanting to rescind the purchase agreement and did not reveal their true plans for the property, of which use defendants disapproved.

Decided September 14, 1987.

David M. Bowen, Kenneth W. Krontz, for appellants.

Sidney R. Barrett, Jr., for appellees.

Even if these representations constituted such fraud as could avoid the obligation to pay the note, the element of damage is missing. Allen v. Sanders, 176 Ga. App. 647, 648 (1) (337 SE2d 428) (1985). In regaining an unencumbered interest in the property, for which the note was consideration, and reselling it free of the Staley purchase agreement, defendants realized no loss, as defendants’ president acknowledged in deposition.

Defendants’ defenses having failed as a matter of law, based on the record before the trial court, summary judgment in favor of plaintiffs was required.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author:
Birdsong, Chief Judge.
      Deen, Presiding Judge,

text:
    74615.
    DAVENPORT v. THE STATE.
    (361 SE2d 219)
   Birdsong, Chief Judge.

Renita Davenport was convicted of abusive and obscene language. See OCGA § 16-11-39. She was sentenced to twelve months suspended upon the payment of a $150 fine. She brings this appeal enumerating as the sole error the denial of her motion for a directed verdict of acquittal. Held:

In substance Ms. Davenport does not dispute the sufficiency of the evidence to show she uttered abusive and obscene language in a dispute with a security guard in a K-Mart store. In fact, the evidence is compelling that she did in fact use opprobrious language. In its accusation, the State alleged that Ms. Davenport used such language to and of the security officer. It is clear that Ms. Davenport did not use opprobrious language or epithets concerning the officer but it equally is clear that by her language and actions to him she invoked violence against herself and provoked passions in bystanders.

We first recognize that there are well defined and narrowly limited classes of speech which may be prevented and punished if used and if punished raise no constitutional problem. Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (62 SC 766, 86 LE 1031). One such class of speech pertains to insulting or fighting words, those by which their very utterance tend to incite an immediate breach of the peace. In determining if words uttered are such as to incite an immediate breach of the peace, it is not necessary that the State prove the effect of the words upon a particular individual; that is, whether the individual to whom the words were addressed or in whose presence the words were spoken was incited to hostile action. OCGA § 16-11-39 (1) makes no distinction between the types of persons to whom the words are uttered. Moreover, the fact that the addressee admits he is used to hearing this type of language is not a defense. Bolden v. State, 148 Ga. App. 315, 316 (2) (251 SE2d 165). Applying these tests to the case sub judice, the words used were likely to and did provoke violence and raised hostility in the minds of other customers in the store. This reaction meets the test required to sustain a conclusion the words were indeed “fighting” words. See Johnson v. State, 143 Ga. App. 826 (240 SE2d 207). See also Brooks v. State, 166 Ga. App. 704, 705 (305 SE2d 436).

The fact that the accusation was phrased in the conjunctive and the trial court charged in the language of the statute does not necessarily create confusion in the mind of the jury nor allow conviction of a crime not charged. See Minter v. State, 170 Ga. App. 801, 802 (318 SE2d 226). The accusation charged Ms. Davenport with using “fighting” words to the security officer, proved such words caused a disturbance and that there was no adequate provocation for the use of those words. The fact that the accusation also expressed in the language of the statute that Ms. Davenport spoke such words “of’ him, did not harm appellant on grounds there was no evidence to support the commission of the offense in that manner but there was evidence to support the allegation of fighting words to the officer. See Laboon v. State, 84 Ga. App. 784 (4) (67 SE2d 149). We are not faced in this case with the situation of a particular and limited form of a crime being alleged but the charge of the court allows a jury to consider the evidence to convict of a crime not charged. See Walker v. State, 146 Ga. App. 237 (246 SE2d 206). Nor are we faced with the situation as in Dinnan v. State, 253 Ga. 334 (320 SE2d 180) where the charge of the court authorized the conviction of provoking language without regard as to location or circumstances in which the language occurred.

The grant of motion for directed verdict of acquittal is proper only in those cases where there is no conflict of fact and the evidence demands a verdict of not guilty. There is no ground or basis for such a verdict in this case. See Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436); Clark v. State, 180 Ga. App. 280, 281 (1) (348 SE2d 916). Though the evidence was in conflict, the evidence in support of the conviction was sufficient to enable a rational trier of fact to find guilt of provoking words beyond reasonable doubt. Jackson v. Virginia, 433 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Pope, J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, I articulate and advance additional aspects:

Justice Murphy set forth three categories of unprotected speech concerning which prevention and punishment may ensue without posing constitutional problems: “These include [1] the lewd and obscene, the profane, [2] the libelous, [3] and the insulting or ‘fighting words’ — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (Emphasis supplied). Chaplinsky v. New Hampshire, 315 U. S. 568 (62 SC 766, 86 LE2d 1031) (1942). Note that Justice Murphy used the word “or,” the disjunctive, in his summary. It is clear he is saying that certain words are not protected in categories [1] and [2], as they inflict injury by their very utterance. After the use of the word “or,” he then addresses category [3] pertaining to fighting words, as those tending to incite an immediate breach of peace.

The precise question we have to decide in this case is whether the words uttered by appellant to and about a certain security guard are proscribed by, and fall within, any of the three listed prohibited areas: “ T don’t want the son of a bitch,’ ‘give me my goddamn sweater,’ ‘get out of my mother fucking way,’ ‘I’m not going no goddamn where!’ ” I would concur and agree that these words are obscene in that they inflict injury. As Justice Murphy, who was a champion of the First Amendment, pointed out, these words are not an essential part of any exposition of ideas, and are only of slight value so as to be outweighed by social interest in order and morality; therefore, they are unprotected in category [1]. However, these words as uttered do not seem, at first blush, to be prohibited within category [3] as they were not spoken or addressed in a personal or derogatory way to the officer. Compare Brooks v. State, 166 Ga. App. 704 (305 SE2d 436) (1983) where the officer was called “a dog,” and Johnson v. State, 143 Ga. App. 826 (240 SE2d 207) (1977), where the female officer was labeled “a bitch.” The court, in these two cases, found these utterances to be fighting words. In the instant case, appellant also struck the officer’s body. Therefore, in the context of the situation, the words combined with the body-blow fit category [3].

The words, “fk the draft,” Cohen v. California, 403 U. S. 15 (91 SC 1780, 29 LE2d 284) (1971), have been adjudicated not to be prohibited as obscene because they also were not fighting words (category [3]). It appears to this writer that the words in Cohen should have been considered obscene under the first category, but the court there ignored, for whatever reason, that possibility. See also “Have a nice day fk somebody.” Professor Jules B. Gerard, “May Society Preserve a Modicum of Decorum in Public Discourse?” Benchmark, Vol. II, Nos. 5 & 6, p. 244.

Decided September 14, 1987.

Lee Sexton, Lillian L. Neal, for appellant.

James L. Webb, Solicitor, Christina A. Craddock, Assistant Solicitor, for appellee.

Georgia apparently does not have an obscenity statute dealing only with category [1], which does not include what is called “fighting words.” If such a statute existed, this conviction would best be affirmed under category [1], rather than the court’s being required to determine also if the words uttered are of a fighting nature. All of our determinations in these areas are subjective findings made on a case-by-case basis. Justice Harlan in Cohen opines “that one man’s vulgarity is another’s lyric.” Assuming arguendo that this statement may be in part true, it does not mean that some words and utterances inflicting injury (not amounting to fighting words) are not, nevertheless, in some instances obscene. These words are no more difficult to pinpoint, prohibit, and proscribe, than are words and utterances that constitute “fighting words.”

In summary, our state presently does not have a pure obscenity prohibition statute but has an obscenity statute only where the words unprotected are also of a fighting nature. Whether or not this gap or hiatus should be plugged or filled addresses itself to the legislature rather than this court.


text:
    74645.
    PAUL v. PAUL.
    (361 SE2d 221)
   Pope, Judge.

Appellant mother and appellee father were divorced on June 4, 1985. The final decree, issued on April 29, 1986, awarded custody of the couple’s minor children to the mother with visitation privileges to the father. In August 1986 the mother and the two minor children moved to Indiana. The father filed a “Petition for Contempt for Denial of Visitation Rights” on October 22, 1986, and personal service was perfected in Indiana on the mother on October 27, 1986.

The mother answered and filed a motion to dismiss in which she asserted that the trial court lacked personal jurisdiction over her based on both her nonresidency and lack of proper service. The trial court denied the motion to dismiss and, relying on OCGA § 9-10-91 (5) and Smith v. Smith, 254 Ga. 450 (330 SE2d 706) (1985), held that it did have personal jurisdiction over the mother for purposes of the contempt petition. The mother obtained a certificate of immediate review and we granted her interlocutory application on February 12, 1987. On appeal the mother argues that OCGA § 9-10-91 (5) is inapplicable to the proceedings sub judice and thus the trial court erred in denying her motion to dismiss. Held:

We agree with appellant mother that OCGA § 9-10-91 (5) did not provide a basis for personal jurisdiction in the present case. “The courts of this state have no extra-territorial jurisdiction, and cannot make the citizens of foreign states amenable to their process, or conclude them by a judgment in personam, without their consent. . . . Therefore, although the superior court rendering a decree in a divorce action retains exclusive jurisdiction to enforce the provisions therein relating to custody of the minor children of the parties by attachment for contempt, even where subsequent to the rendition of the order the party sought to be adjudged in contempt has removed his or her residence to another jurisdiction, nevertheless, in order for the court to bind nonresidents by its judgments in personam there must be personal service or waiver of personal service upon such nonresidents. . . . Although the cases requiring personal service do not specify that this must be personal service within Georgia, a close inspection of these cases reveals this to be the case. Thus, personal service outside Georgia here was not valid. . . . [Moreover,] the Georgia Long-Arm Statute (OCGA § 9-10-91 (5)) would not give the Georgia court jurisdiction, because this was not a proceeding for alimony, child support, or division of property in connection with an action for divorce or with respect to an independent action for support of dependents, so personal service outside Georgia would not give the Georgia court jurisdiction under OCGA § 9-10-94.” (Citations, punctuation and indention omitted.) Ashburn v. Baker, 256 Ga. 507, 509 (350 SE2d 437) (1986).

However, we agree with appellee father that jurisdiction and service over the mother were proper under the provisions of the Uniform Child Custody Jurisdiction Act, OCGA § 19-9-40 et seq. First we note that the father’s petition for contempt for visitation clearly comes within the purview of the UCCJA. See Ashburn, 256 Ga. at 508, supra; Baker v. Ashburn, 179 Ga. App. 757, 759 (347 SE2d 660) (1986). Moreover, it is clear to us that at the time this action was instituted Georgia was the “home state” of the minor children. See OCGA §§ 19-9-42 (5); 19-9-43 (a) (1) (A) and (B); Harper v. Landers, 180 Ga. App. 154, 156-157 (348 SE2d 698) (1986). (Cf. Baker, 179 Ga. App. 757, supra, in which the minor child had resided in Florida for over 2Vi years at the time the father instituted his action in Georgia.) Accordingly, the trial court did not err in denying the mother’s motion to dismiss.

Judgment affirmed.

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

Decided September 14, 1987.

H. William Sams, Jr., for appellant.

John L. Creson, for appellee.


text:
    74770.
    GRIMES v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    (361 SE2d 389)
   Pope, Judge.

Plaintiff Grimes obtained a judgment against G. Scott Wilkerson and Wilkerson Insurance Agency, Inc., for $1,800 actual damages and $224,100 punitive damages. Plaintiff then brought this action to collect the judgment against defendant St. Paul Fire and Marine Insurance Company, the errors and omissions carrier for Wilkerson Insurance Agency, Inc. Defendant moved for summary judgment on the ground, inter alia, the policy issued to its insured provided no coverage for an award of punitive damages. In response to said motion, plaintiff filed a motion to set aside the judgment in the earlier tort action against the insured on the ground it was inconsistent with the original jury verdict awarding a total sum of $225,900 without designation as to actual or punitive damages. The two matters were before the same trial judge. Prior to ruling on the motion to set aside the judgment in the tort action, the lower court granted partial summary judgment to defendant St. Paul in the current action as to plaintiff’s claim to collect the punitive damages award in the tort action against the insured, as well as plaintiff’s claim for bad faith penalties and attorney fees for St. Paul’s failure to pay the claim. Plaintiff appeals.

1. Plaintiff admits the judgment obtained against defendant’s insured was for an intentional tort. Judgment debtor G. Scott Wilkerson was the principal stockholder of the insured, Wilkerson Insurance Agency, Inc. The policy of insurance issued by defendant to its insured excluded coverage for the intentional acts of officers and stockholders. Therefore, defendant has no liability for the judgment entered against Mr. Wilkerson. However, plaintiff argues defendant is not entitled to summary judgment as to the judgment entered against the insurance agency because the policy expressly extended coverage for the intentional acts of other employees. Nevertheless, the policy excluded coverage of claims for punitive or exemplary damages. Regardless of who committed the wrongful act which resulted in the award in favor of plaintiff and against the insured, the award of punitive damages was not covered by the insurance policy. An insurer is entitled to summary judgment where the loss complained of is ex-eluded from coverage by the terms of the policy. Cf. Aetna Ins. Co. v. Walker, 98 Ga. App. 456 (1) (105 SE2d 917) (1958).

Decided September 14, 1987.

Walter L. Fortson, for appellant.

John C. Grabbe IV, for appellee.

2. We deny plaintiff’s second enumeration of error, which claims the trial court erred in ruling upon defendant’s motion for summary judgment while her motion to set aside the underlying judgment was still pending in the separate tort action. The plaintiff in this action to collect a judgment from the judgment debtor’s liability insurance carrier took the unusual position of attacking the validity of the very judgment she was attempting to collect. Plaintiff’s efforts to discredit the underlying judgment constituted an improper collateral attack upon the judgment. See OCGA § 9-11-60 (a). The validity of the judgment in the underlying tort action was not properly before the court in the current action. If plaintiff had so wished, she could have filed a motion to stay further proceedings in this collection action until the motion to set aside the underlying judgment was resolved. We note that the motion to set aside the underlying judgment was ultimately denied.

3. For reasons discussed in Division 1 of this opinion, the trial court did not err in granting summary judgment as to plaintiff’s claim for bad faith penalties and attorney fees.

4. Plaintiff’s appeal from the lower court’s denial of her motion to set aside the underlying judgment was dismissed by this court on July 10, 1987, and, therefore, defendant’s motion to consolidate the two appeals is moot.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    74374.
    PITTS v. THE STATE.
    (361 SE2d 234)
   McMurray, Presiding Judge.

Defendant was convicted of driving under the influence of alcohol and of the offense of habitual violator. Defendant now appeals seeking a new trial from his conviction of habitual violator. Held:

In his sole enumeration of error defendant contends the trial court erred in failing to charge the jury, without request, as to the defense of mistake of fact regarding the offense of habitual violator. In this regard, OCGA § 16-3-5 provides that “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” “We have repeatedly held that failure to give this charge may be reversible where the defense of mistake of fact is the defendant’s sole defense, as where the defendant concedes that the factual circumstances perceived by the state to be a criminal act on his part did in fact occur but only under a mistake of fact and therefore without the requisite criminal intent constituting the crime charged. See, e.g., Gray v. State, 158 Ga. App. 582 (281 SE2d 328); Henderson v. State, 141 Ga. App. 430 (233 SE2d 505).” Hobgood v. State, 162 Ga. App. 435, 436 (291 SE2d 570).

Decided September 15, 1987.

David M. Bowen, Kenneth W. Krontz, for appellant.

Frank C. Winn, District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

In the case sub judice, the trial court did not err in failing to charge the jury, sua sponte, on the defense of mistake of fact. That defense was not the sole defense raised by defendant at trial with regard to the offense of habitual violator as defendant testified that he was not properly served with notice by the Georgia Department of Public Safety of his status as a habitual violator as is required by OCGA § 40-5-58 (b). Consequently, failure to charge in the language of OCGA § 16-3-5, absent a timely request, was not reversible error. Hobgood v. State, 162 Ga. App. 435, supra.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74402.
    DUBBERLY et al. v. P. F. MOON & COMPANY, INC.
    (361 SE2d 223)
   Beasley, Judge.

This case is about a number: it was a jury question whether the agreed number was 1 or 2. On this determination rode $11,306. Defendants appeal, with new counsel, from the judgment conforming to the jury verdict for that amount plus attorney fees, and from denial of a new trial.

P. F. Moon & Company, Inc. (Moon) constructs sewage treatment plants and decided to bid on a new plant in response to the City of Vienna’s published call for bids. Three days before the bid date, Moon was called by Michael Dubberly who indicated that he, on behalf of Pump & Equipment Company, a partnership composed of Michael and his brother David, wanted to submit a price for the pumps to be used on the project. Three types of pumps were specified: influent, transfer, and irrigation. The dispute concerns the number of pumps of each type included in the quote given by Dubberly. The Dubberlys’ position was that Michael gave Phillip Moon, president of Moon, a price for a single pump of each type. Moon insists that the prices were for two pumps of each type and were listed separately as line items.

There was evidence of the following. The specifications for the job required two pumps of each type, and Dubberly admitted he had a copy of that portion of the specifications dealing with the irrigation pumps when he called Moon. Moon did not consider the price given for the influent pumps because the brand which Dubberly bid was not approved by the engineer on the project. He did consider the irrigation and transfer pump prices and wanted to use them in the bid. These two prices were substantially lower than the others he received and for that reason Moon telephoned defendants the day of the bid to confirm these prices. Due to Michael Dubberly’s absence, he spoke to David Dubberly and told him that he was concerned because of the disparity. He asked if the prices were for pairs of pumps and David confirmed that they were. Moon noted this on the telephone bid sheet made during his previous conversation with Michael.

These prices were included as part of Moon’s bid, which was accepted by the city. The next day, David was told by Moon that their price had been used and that they should give written confirmation so that Moon could issue the purchase order. Moon said David again confirmed that the prices were for pairs. About a week later, the Dubberlys disputed that the prices were for pairs and refused to provide the pumps at the prices quoted. Moon was obligated to provide to the city the pumps specified in the bid, which cost an additional $11,306 above the quoted prices. Moon sued.

1. Prior to trial, Moon sought in limine to exclude from trial any reference to the total contract price of its prime contract with Vienna or to the amount of profit Moon made on the job, as irrelevant to the issues. No written opposition to the motion was filed by the Dubberlys. The granting of this motion is the subject of Enumeration 1.

At the beginning of the trial, the court agreed that these facts were not relevant and indicated that it would grant the motion. However, the court specifically instructed counsel for the Dubberlys that if at some point in the trial counsel believed these facts became relevant, he should resurrect the matter and the court would reconsider admissibility. At no time during the trial was any question asked by the Dubberlys concerning the total contract price or the profit made on the job by Moon, nor was a proffer made as to the nature of such information, nor its relevance explained.

The court’s ruling excluding the evidence was expressly not final. In effect, the court exercised the discretion it has to reserve ruling on the admissibility of evidence until it is offered at trial. Wiggins v. State, 249 Ga. 302, 303 (1) (b) (290 SE2d 427) (1982). The failure to offer the desired evidence at trial as invited, and to display its content, precluded the trial court’s ruling on its admissibility in the context of the evidence presented up to that stage, so of course there is no ruling in that regard for us to review. Appellant simply failed to preserve the objection. See Morris v. Southern Bell Telephone Co., 180 Ga. App. 145 (1) (348 SE2d 573) (1986); Baranan v. Fulton County, 250 Ga. 531, 534 (3) (299 SE2d 722) (1983).

Nor can we review the initial ruling on the admissibility of the evidence, as defendants did not develop that evidence on the record or show its relevancy, and we cannot surmise these. Mulcay v. Mulcay, 223 Ga. 309 (2) (154 SE2d 607) (1967); Shearson/American Express v. Hardy, 171 Ga. App. 471, 474 (3) (320 SE2d 257) (1984). See Campbell v. State, 149 Ga. App. 299, 300 (2) (254 SE2d 389) (1979). “The exclusion of admissible testimony does not constitute reversible error unless the trial court is informed of what the witness would have said and how the testimony would have been material. [Cit.]” Fruin-Colnon Corp. v. Air Door, 157 Ga. App. 804, 808 (278 SE2d 708) (1981).

2. The second enumeration complains of the court’s sustaining plaintiff’s objection on relevancy grounds to defendants’ eliciting testimony of Michael Dubberly’s military service record and of the court’s comments, in explanation of the ruling, that the law treats all equally and that a person’s character and background are not generally relevant. As to the first: after the objection was sustained, defendants made no proffer of what the evidence might be so that the court could determine its relevancy. There is nothing for us to review. Mulcay, supra; Shearson/American Express, supra. As to the second: after the court made the statement, no objection was made, and thus there is no ruling for us to review. Walker v. Bishop, 169 Ga. App. 236, 242 (9) (312 SE2d 349) (1983). Moreover, what the court said was a correct statement of the law. OCGA § 24-2-2. See also Suggested Pattern Jury Instructions, Vol. I, Civil Cases, 2d ed. 1984, I. C., p. 3. It was not a violation of OCGA § 24-9-80, making witness credibility a jury question, as appellants contend, nor of OCGA § 9-10-7.

3. The third enumeration asserts it was error to submit the issue of attorney fees to the jury under OCGA § 13-6-11 because there was no evidence to support such an award. No motion for directed verdict under OCGA § 9-11-50, which was the appropriate mechanism to avert the submission, was made by defendants. The court was not required to omit the matter from the jury’s consideration sua sponte. See Associated Software Consultants v. Wysocki, 177 Ga. App. 135, 136 (1) (338 SE2d 679) (1985). Moreover, there was sufficient evidence to create a jury issue. See Thompson Enterprises v. Coskrey, 168 Ga. App. 181, 184 (1) (308 SE2d 399) (1983); Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (2) (301 SE2d 493) (1983).

4. Defendants also complain that the jury was not charged on the duty of plaintiff to mitigate damages. They filed no request on this issue. The trial court did charge a correlative, as defendants requested, that if the jury found that plaintiff had “magnified or exaggerated his alleged damages ... on account of his interest in the suit, . . . it is your duty to disregard the evidence given ... as the same is unjustly magnified or unjustly increased.” Upon inquiry by the court as to objections after the charge was given, defendants’ counsel stated they had none.

Unless the failure to give a charge on mitigation of damages was a substantial error which was harmful as a matter of law, so as to be considered under OCGA § 5-5-24 (c), the failure is not reversible. Hamrick v. Wood, 175 Ga. App. 67, 68 (2) (332 SE2d 367) (1985). The charge as given here was sufficient so that the absence of the unrequested charge was not harmful, as a matter of law. Even where objection is made that a requested charge was not given, but the objection is not a proper one, the rule of OCGA § 5-5-24 (c) applies. Cox v. Cantrell, 181 Ga. App. 722, 724 (4) (353 SE2d 582) (1987).

5. Finally, defendants urge that denial of their motion for new trial on the general grounds, as well as some grounds already discussed, was error. The basis for this argument is their claim of insufficient evidence that a contract had been entered into. Defendants did not rely on mutual mistake of fact, OCGA § 13-5-4, nor did they seek equitable rescission, OCGA § 23-2-31. “The grant or denial of a motion for new trial ... is a matter within the discretion of the trial court and will not be disturbed ... if there is ‘any evidence’ to authorize it.” Associated Software, supra, 137; Commercial Artservices v. Buchtal Corp., 180 Ga. App. 305, 306 (348 SE2d 768) (1986).

Here, because of conflicting testimony, the question was one of credibility, as to whether the price quoted was for single pumps or pairs. Such a question is one for the jury, OCGA § 24-9-80, and it cannot be said that there is no evidence to support the trial court’s denial of the motion for new trial.

Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640 (278 SE2d 182) (1981), relied upon by defendants, does not require a different result. In that case there were offers and counteroffers, and the Court found that there was insufficient evidence to show that the outstanding counteroffer had ever been accepted. Here there was but one offer, and it was accepted. An aspect of its terms was disputed, and that was for the jury to decide, there being some evidence either way.

6. Plaintiff has filed a motion for damages pursuant to OCGA § 5-6-6. Our review of the record and the nature of the appeal do not persuade us that “the case was taken up for delay only.” The motion is denied.

Decided September 15, 1987.

John R. Calhoun, for appellants.

David B. Kitchens, for appellee.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    74487.
    BRITT v. INDEPENDENT FIRE INSURANCE COMPANY.
    (361 SE2d 226)
   McMurray, Presiding Judge.

On October 9, 1985, the house of Nellie Britt was damaged extensively by a fire. The house was covered by a policy of fire insurance which was issued by Independent Fire Insurance Company. In pertinent part, the policy provided: “In case of a loss to covered property, you must see that the following are done: . . . f. send to us within 60 days after our request, your signed, sworn proof of loss. ...” The policy also provided: “Payment for loss will be made within 60 days after we receive your proof of loss. . . .”

Mrs. Britt notified the insurance company of the loss and she was paid $500 by the insurance company. This sum represented a portion of the personal property loss coverage provided by the policy. Mrs. Britt “repeatedly requested all of the forms necessary to file [her] claim with the insurance company.” Thereafter, Mrs. Britt received an inventory sheet which she filled out and submitted to the insurance company on November 9, 1985. She was not given a proof of loss form at that time.

Mrs. Britt subsequently retained counsel. On February 7,1986, at the taking of her sworn statement, Mrs. Britt was given a proof of loss form by the insurance company’s attorney. Mrs. Britt was requested to complete the form and return it to the insurance company as soon as practicable. Mrs. Britt completed the proof of loss form and forwarded it to the insurance company by February 19, 1986. Thereafter, on March 28, 1986, Mrs. Britt received two checks from the insurance company. One check, in the amount of $40,000, represented the full insured value of Mrs. Britt’s residence. The other check, in the amount of $15,500, represented the balance of the insured value of Mrs. Britt’s personal property.

In the meantime, on March 6, 1986, Mrs. Britt brought suit against the insurance company seeking the enforcement of the terms of the insurance policy, a penalty and attorney fees for bad faith refusal to pay (under OCGA § 33-4-6), and exemplary damages. The insurance company answered the complaint, alleging that it fulfilled its obligations under the contract of insurance and that it acted reasonably at all times.

Following discovery, the insurance company moved for partial summary judgment with regard to the bad faith, attorney fees and exemplary damages issues. Mrs. Britt amended her complaint by adding allegations of fraud. A hearing was held upon the motion for partial summary judgment and it was denied. In its order denying the motion, the trial court held: “the record ... is unclear as to whether the statutory demand was made, and if made whether the demand was made more than 60 days prior to the filing of the suit. Resolving all doubts in favor of the non-movant, defendant has failed to meet its burden and is not entitled to judgment as a matter of law.”

Thereafter, the insurance company again moved for partial summary judgment. The affidavit of B. Cariel Russell, a claim examiner for the insurance company, was filed in support of the motion. Russell deposed that Mrs. Britt never requested, either orally or in writing, a proof of loss form; that “no demand was made upon Independent Fire Insurance Company or any agent thereof by Nellie Britt or anyone acting in her behalf, either contemporaneously with the filing of her sworn proof of loss or at any time thereafter up through and including the date that the within action was filed”; that the insurance company never denied coverage or refused to pay the claim of Mrs. Britt; that the investigation of the case continued until the taking of the sworn statement of Mrs. Britt on February 7, 1986; and that on March 26, 1986, after reviewing the sworn statement of Mrs. Britt, and before receiving notice of Mrs. Britt’s lawsuit, a decision was made to pay Mrs. Britt’s loss.

After a hearing, the trial court granted the insurance company’s second motion for partial summary judgment. It held that Mrs. Britt could not have made a demand for payment more than 60 days before filing suit because the proof of loss form was not submitted more than 60 days before suit was filed. Thus, the trial court ruled that Mrs. Britt could not recover a penalty and attorney fees under OCGA § 33-4-6. Mrs. Britt appeals from the trial court’s ruling. Held:

1. “The burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant.” Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442).

2. In order to carry the burden with regard to its partial summary judgment motion, it was incumbent upon the insurance company to demonstrate that plaintiff did not make a demand for payment of the loss more than 60 days before filing suit. OCGA § 33-4-6; Hanover Ins. v. Hallford, 127 Ga. App. 322, 323 (193 SE2d 235). Via the affidavit of its claim examiner, the insurance company demonstrated that plaintiff did not make a demand for payment contemporaneously with, or after, the submission of the proof of loss. It is unclear, however, whether plaintiff made a demand for payment before the proof of loss was submitted.

The insurance company does not contend that no demand was made by plaintiff before the proof of loss was submitted on February 19, 1986. Rather, it asserts that it need not show the lack of a demand prior to the submission of the proof of loss. In this regard, the insurance company argues that pursuant to the policy plaintiff was not in a position to make a demand before submitting the proof of loss. See in this connection Dixie Constr. Prods. v. WMH, Inc., 179 Ga. App. 658 (1) (347 SE2d 303). This argument is meritorious so long as the insurance company did not waive the proof of loss filing. See generally Buffalo Ins. Co. v. Star Photo &c. Co., 120 Ga. App. 697 (172 SE2d 159).

OCGA § 33-24-39 provides: “An insurer shall furnish, upon written request of any person claiming to have a loss under an insurance contract issued by the insurer, forms for proof of loss for completion by the person, but the insurer shall not, by reason of the requirement so to furnish forms, have any responsibility for or with reference to the completion of the proof or the manner of any completion or attempted completion. Failure or refusal to furnish the form upon written request or written notice of a loss shall constitute waiver of the right of the insurer to require proof of loss.”

Plaintiff submitted a completed inventory sheet to the insurance company on November 9, 1985. The inventory sheet amounted to the written notice of a loss specified in OCGA § 33-24-39. Cotton States Mut. Ins. Co. v. Clark, 114 Ga. App. 439, 445 (6) (151 SE2d 780). See also Georgia Mut. Ins. Co. v. Morgan, 115 Ga. App. 520 (154 SE2d 720). Did the insurance company fail or refuse to furnish the proof of loss form upon receiving written notice of the loss? The contention is made that the insurance company did not fail or refuse to furnish the proof of loss form since it eventually was given to plaintiff at the taking of her sworn statement on February 7, 1986. This contention misses the point of OCGA § 33-24-39. The Code section requires an insurer to furnish a form for proof of loss upon written notice of a loss. In the case sub judice, the insurer did not provide plaintiff with a proof of loss form upon written notice of the loss. Rather, it waited nearly three months before it gave plaintiff the requisite form. Under these circumstances we think that, at the very least, a jury question is presented as to whether the insurance company waived the proof of loss requirement by failing or refusing to provide the proof of loss form upon written notice of a loss. See Great Southwest Fire Ins. Co. v. Sprinkler Contractors, 168 Ga. App. 104, 105 (308 SE2d 204). See also Grange Mut. Cas. Co. v. Hall, 173 Ga. App. 382, 384 (326 SE2d 497).

Decided September 15, 1987.

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

C. Van Reynolds, for appellee.

Whether a demand is sufficient to invoke the penalty provision of OCGA § 33-4-6 depends on whether it was made at a time when immediate payment could be exacted; whether immediate payment could be exacted depends on whether the filing of a proof of loss form has been waived under OCGA § 33-24-39. See Buffalo Ins. Co. v. Star Photo &c. Co., 120 Ga. App. 697, 704, supra. Inasmuch as a question of fact remains concerning the waiver vel non of the filing of a proof of loss, it cannot be said that the insurance company was entitled to partial summary judgment as a matter of law. It follows that the trial court erred in granting the insurance company’s motion for partial summary judgment.

Judgment reversed.

Sognier and Beasley, JJ., concur.


text:
    74534.
    KING v. GILMAN PAPER COMPANY.
    (361 SE2d 390)
   Birdsong, Chief Judge.

Tortious Conversion — Frivolous Appeal. Johnny R. King has for a second time sued his employer of over 30 years for wrongfully withholding from his pay an assessment imposed by the Internal Revenue Service. In the first suit (King v. Gilman Paper Co., 181 Ga. App. 275 (351 SE2d 710)), King contended that he received no “income” in that he exchanged his personal services for the value of those services (i.e., his wages) and had enjoyed no “gain or profit,” the definition of “income.” He thus filed a Form W-4 maintaining he had received no “income” through his wages for the year past nor expected any “income” for the coming year. One who does not receive income under such circumstances may file a W-4 indicating an “exempt” status. This W-4 showing King to be exempt was filed with IRS. While the form was being investigated by IRS, the employer did not withhold taxes from King’s wages. Ultimately King was informed by IRS that his interpretation of “income” was not valid and his W-4 form was claiming an incorrect status. The employer was directed to ignore the W-4 and recommence appropriate withholdings of taxes due. King disregarded the IRS’ findings and conclusions and filed a second W-4 still claiming an exemption from income taxes. He had been cautioned by the IRS that an improper W-4 could cause a penalty of $500 to be assessed. Gilman commenced again withholding taxes from King’s wages and he brought his first complaint for wrongful conversion of his wages against Gilman. Summary judgment was granted Gilman and that judgment was affirmed as indicated above in 181 Ga. App. 275.

Based upon King’s filing of the second W-4 claiming an exemption which the IRS had already declared illegal, a $500 penalty plus administrative costs of $49 was assessed upon Gilman for deduction from King’s wages. This assessment was paid by Gilman in response to the levy imposed by the IRS. King then brought the present complaint (while the first complaint was still pending) again contending that inasmuch as he was not earning “income” from Gilman the W-4 was not false or illegal and no penalty was assessable by the IRS and was improperly paid by Gilman. He sued for return of the $549 converted by Gilman from his pay plus costs and such other damages as might be found. Gilman along with its answer filed a cross complaint seeking damages in the form of costs and reasonable attorney fees for a frivolous complaint. The trial court granted summary judgment to Gilman on King’s complaint and reserved for the trial the counterclaim. King brings this appeal pro se protesting the grant of summary judgment to Gilman. Held:

King apparently has impressed no one but himself with the logic of his arguments. His barter arguments as to his services in exchange for his wages (thus not constituting “income”) convinced neither the IRS, the trial court on two separate occasions, nor this court. Likewise his argument that only those who “volunteer” to be subject to federal income taxes are subject thereto has uniformly been rejected. All these arguments were presented to this court in King’s first appearance before this court and rejected summarily. In fact this court imposed upon King a penalty of $250 for bringing before us a frivolous appeal. The only new argument presented by King is that he was warned by the IRS that it could “levy” a penalty against him if he filed a “false” W-4. He argues that the document sent to Gilman was a “notice of levy” and not an actual levy. At best this is a semantical argument. King himself quotes pertinent language of IRS regulations that makes clear that the IRS is granted the authority and informed that the proper way to recover monies due is to levy against assets due the taxpayer. That levy is executed by serving upon the holder of the taxpayer’s assets a notice of levy. The notice of levy within its four corners informs the holder of the assets how to comply with the notice of levy. It is clear that a notice of levy is not a warning to be followed by an actual levy but is the levy itself. It logically would appear therefore that any litigable loss occasioned by King was caused by the levy by IRS and King’s complaint should be against the IRS.

Decided September 15, 1987.

Johnny R. King, pro se.

Terry K. Floyd, for appellee.

Even if justice was not blind and thus we could take a sympathetic position in regard to King’s arguments, we would be compelled to affirm this judgment. The first adjudication of this same issue of “illegal” conversion was decided adversely to King and that case is wholly dispositive of this case. King v. Gilman Paper Co., supra. Gilman is wholly insulated from complaint by King in response to a levy by the IRS. King was aware of that insulation prior to the filing of the appeal in this case. The first decision against King’s position was entered by this court in December 1986, and the appeal in this case was not filed by King until February 1987. Pretermitting the issue of jurisdiction in the courts of the state of Georgia (see Enochs v. Williams Packing Co., 370 U. S. 1, 5 (82 SC 1125, 8 LE2d 292)) (as that question was not raised below nor is it before this court), we are constrained to conclude that the appeal in this case was filed with even more frivolous disregard for the trouble and inconvenience caused the appellee and this court. A penalty pursuant to Rule 26 (b) of this court in the maximum amount of $500 is assessed against Mr. King.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74551.
    DAVIS v. THE STATE.
    (361 SE2d 229)
   Birdsong, Chief Judge.

Appellant and his co-defendant Joann Davis were convicted of financial credit card theft and forgery. Appellant was also convicted of aggravated assault. He appeals.

Appellant was observed by K-Mart security personnel as he selected five men’s shirts, placed them on a counter, and then exited the store. Shortly thereafter, Mrs. Davis entered the store. She picked up the shirts, proceeded to a checkout counter, and presented a charge card belonging to a Pamela Cornwell. Ms. Cornwell had recently lost her wallet. Mrs. Davis signed the charge slip in Ms. Cornwell’s name. Security personnel then confronted Mrs. Davis.

At this point appellant reentered the store and approached Mrs. Davis and the security officers. An argument ensued. Jeffrey Wright, who had been called to the front of the store by a “Code Blue” security alert, approached appellant from behind. He saw that the appellant was brandishing a knife. Appellant warned the security officer to stay back or he would cut her. He turned to Wright and said: “That includes you, white boy. ...” Wright and the other security personnel then backed off and appellant ran out of the store and fled on foot. Held:

1. In his first enumeration of error, appellant maintains the evidence was insufficient for any rational trier of fact to establish the offense of aggravated assault beyond a reasonable doubt. From the evidence, the jury could have found that appellant’s acts placed Jeffrey Wright in reasonable apprehension of receiving a violent injury; Wright so testified. Furthermore, the evidence showed that the reason Wright did not attempt to apprehend appellant was because of his fear of receiving an injury.

Appellant also contends that the knife could not constitute a “deadly weapon” under the circumstances, since the victim was out of striking range and the appellant maintained a defensive posture. But the statute does not differentiate between offensive and defensive threats of immediate bodily harm. OCGA § 16-5-21. Indeed, the knife in question was “arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury.” Hambrick v. State, 174 Ga. App. 444, 445 (1) (330 SE2d 383). Whether the instrument used constituted a deadly weapon was properly for the jury’s determination. See Quarles v. State, 130 Ga. App. 756 (2), 757 (204 SE2d 467); Hambrick, supra.

Taken in the light most favorable to the State, there was sufficient evidence to convince a rational trier of fact of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Daughtry v. State, 180 Ga. App. 711 (350 SE2d 53).

2. Appellant contends that the trial court’s charge was prejudicially erroneous because it included matter not in the indictment, resulting in the possibility that the jury could find him guilty of the offense in a manner not set out in the indictment.

The well-established rule is that a charge citing a code section in its entirety is not error where a portion of the section is applicable so long as it does not appear that the inapplicable part misled the jury. Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621).

Appellant cites as authority Walker v. State, 146 Ga. App. 237 (246 SE2d 206). In Walker, the defendant was indicted for committing theft by wrongfully taking the property of another. The trial judge charged the entire code section defining theft, including not only the provision regarding wrongful taking, but also the “unlawful appropriation” provision. Further, no later instruction was given limiting the findings to the indictment. That charge was held to be in error because it allowed the jury to find the defendant guilty of theft based on evidence of “unlawful appropriation,” a form of theft not contained in the indictment.

The instant case, however, is not controlled by Walker because it does not appear the charge could have misled the jury. The indictment alleged that appellant committed an “assault on the person of Jeffrey Wright with said knife, a deadly weapon, thereby placing said Jeffrey Wright in reasonable apprehension of immediately receiving a violent injury. . . .” In instructing the jury, the trial court identified the offense of aggravated assault by reading OCGA § 16-5-21 in its entirety. “A person commits the offense of aggravated assault when he assaults with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

The court went on to define the term assault as set out in OCGA § 16-5-20: “(1) An attempt to do violent injury to another or (2) commission of an act placing another in reasonable apprehension of immediately receiving a violent injury.”

Appellant contends that the jury was permitted to find that an assault could be an “attempt to injure,” which is a manner of the offense not alleged in the indictment. There was, however, no evidence adduced at trial that could have led the jury to base its findings on an “attempt to injure.” Slack v. State, 159 Ga. App. 185, 189 (2) (283 SE2d 64). In fact, appellant has stressed the fact that he maintained a defensive posture during the episode.

In addition, after giving the instructions in question, the trial judge referred the jury to the “crimes charged in the indictment,” and he charged: “If you do believe beyond a reasonable doubt that the defendant. . . did . . . commit these offenses in the way and manner alleged in the indictment, then you should convict that defendant.”

When considered in its entirety, the charge is not misleading. Remedial instructions properly confined the charge to the particular portion of the code set out in the indictment. Lumpkin v. State, 249 Ga. 834, 836 (2) (295 SE2d 86); Pippin v. State, 205 Ga. 316, 324 (9) (53 SE2d 482).

Appellant further contends that since the indictment alleged the knife was a deadly weapon and the charge added: “any object . . . when used offensively ... is likely to result in serious bodily injury . . . ,” the jury was allowed to return a finding of guilty under alternative theories. But the question whether the knife constituted a deadly weapon or whether it constituted an instrument likely to inflict serious bodily harm had nothing to do with the manner in which the crime was committed. “Consequently, the charge cannot reasonably be deemed to have presented the jury with an alternative basis for finding the appellant guilty of aggravated assault not charged in the indictment.” Miller v. State, 174 Ga. App. 703, 704 (3) (331 SE2d 616).

Decided September 15, 1987.

Michael H. Lane, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Andrew Weathers, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74558.
    McKENZIE v. SEABOARD COAST LINE RAILROAD COMPANY et al.
    (361 SE2d 235)
   McMurray, Presiding Judge.

This action for damages was filed by the administratrix of decedent’s estate against defendants Seaboard Coast Line Railroad Company and Gleaton, an alleged agent and operator of trains of the corporate defendant. The complaint alleges that the decedent was fatally injured when her automobile was hit by a train negligently operated by defendants.

Defendants each filed their answer and defenses. Subsequently, defendants filed a motion for summary judgment which was served on August 14, 1985, and filed the following day. On January 23, 1987, an order was filed, dated the preceding day, granting defendants’ motion for summary judgment. Plaintiff appeals from the grant of summary judgment in favor of defendants. Held:

Plaintiff’s sole enumeration of error is that the superior court erred in “granting a motion for summary judgment without a hearing and providing plaintiff an opportunity to appear at a hearing.” However, as the defendants’ motion for summary judgment was decided under the auspices of the Uniform Superior Court Rules, it was not error for the superior court to grant a summary judgment in accordance with Rule 6.3 without an oral argument hearing, where, as in the case sub judice, neither party requested such a hearing. Dallas Blue Haven Pools v. Taslimi, 256 Ga. 739 (354 SE2d 160); Kelley v. First Franklin Fin. Corp., 256 Ga. 622 (351 SE2d 443); Murphy v. First Nat. Bank, 182 Ga. App. 788, 789 (4) (357 SE2d 266); Spikes v. Citizens State Bank, 179 Ga. App. 479, 480 (1) (347 SE2d 310).

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Decided September 15, 1987.

Alvin C. McDougald, for appellant.

John T. Croley, Jr., for appellees.

Beasley, Judge,

concurring specially.

I fully agree.

Compare Goodwin v. Richmond, 182 Ga. App. 745 (2) (356 SE2d 888) (1987), where a request for hearing on a summary judgment motion was made and the Court held that notice of the hearing date was required to be served on the opponent. Where no hearing is requested, as here, no one must notify the opponent that the motion will be decided without a hearing. No procedural unfairness is occasioned by casting the burden on the party who desires a hearing to initiate one, by simple request.