text:
    77178.
    QUEEN v. THE STATE.
    (375 SE2d 287)
   Birdsong, Chief Judge.

Appellant, Kerry Edward Queen, appeals his conviction of driving and operating a motor vehicle with driver’s license in suspension, operating a motor vehicle without insurance, and operating a motor vehicle with a defective headlight.

At trial, the arresting officer who was the sole State’s witness testified that he stopped appellant because the latter was driving with his right headlight out. The appellant asked why he was stopped and was shown the defective headlight. Appellant was asked for his driver’s license and for proof of insurance, and he could not produce it. Appellant claimed he had left his license at home. However, when asked to provide his name and birthdate for a computer check, appellant replied, “[d]on’t bother, they’re suspended. I don’t have any insurance.” Radio confirmation regarding the status of appellant’s license was obtained. At some point during the traffic stop, the appellant also informed the arresting officer that the motor vehicle “was his.” The State also introduced in evidence a properly excised and authenticated copy of appellant’s driving record, maintained by the Department of Public Safety, containing an entry showing appellant’s driver’s license was “SUSPENDED — INSURANCE CANCELLATION (1st).” Held:

1. Appellant asserts that the trial court erred in denying his motion for directed verdict of acquittal as to each of the above counts. The evidence, when viewed in the light most favorable to the prosecution, is not such as to demand a verdict of acquittal; and, our review of the transcript “ ‘reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.’ ” Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

(a) Appellant’s motion for directed verdict on the charge of operating a motor vehicle without insurance was predicated on a claim that the State has failed to meet its burden of proof as to this offense. We disagree. The appellant’s failure to produce his insurance card upon request, the official record maintained by the Department of Public Safety containing factual entries of license suspension and insurance cancellation, and appellant’s admissions that he was the owner of the vehicle and that he did not have any insurance, constitute “ample evidence” of record within the standard and meaning of Jackson v. Virginia, supra. Compare Barrett v. State, 173 Ga. App. 452 (326 SE2d 816).

(b) Appellant’s motion for directed verdict on the charge of driving with a suspended driver’s license was predicated on a claim that “the State has failed to prove the requisite notice of cancellation, as well as notice upon this Defendant.” We find Barrett v. State, supra, to be controlling. The triers of fact could conclude from appellant’s admission that his license had been suspended, and that the appellant had received due notice of this fact. OCGA § 24-1-1 (4). The cases of Farmer v. State, 185 Ga. App. 512 (364 SE2d 639); Sumner v. State, 184 Ga. App. 374 (361 SE2d 536); and Williams v. State, 181 Ga. App. 49 (351 SE2d 207) are factually distinguishable from this case.

(c) Appellant’s motion for directed verdict on the charge of operating a motor vehicle with a defective headlight was predicated on a claim that the officer stated such offenses normally are not prosecuted (selective prosecution) and “that this was just probable cause.” Upon appeal, appellant asserts that the State failed to “carry the burden of proof as to [the headlight offense] in that ... an absolute duty was placed upon the Defendant that would result in a violation of the law upon an equipment failure.”

Appellant’s assertion at trial of selective prosecution has been abandoned on appeal. Clark v. State, 180 Ga. App. 280 (2) (348 SE2d 916). Moreover, this assertion is without merit. Sabel v. State, 250 Ga. 640 (4) (300 SE2d 663).

Appellant’s assertion that the State has failed to carry its burden of proof, as an absolute duty not to drive with a defective headlight erroneously was placed upon appellant, equally is without merit. First, appellant has not enumerated as error or expressly argued in his brief that any particular instructional error occurred regarding this offense. In attempting to construe the basis of appellant’s enumeration of error in light of the matters above discussed, we find that his assertion is too non-specific and too general to assist this court in ascertaining the precise scope and nature of the error enumerated. Kelly v . State, 182 Ga. App. 7 (3) (354 SE2d 647). However, based on our review of the record, we assume appellant is asserting that a directed verdict should have been granted because the State failed to establish he had knowledge of the defective headlight and a mens rea to violate the statute. We also assume that this is what appellant meant when he requested a directed verdict at trial on the basis of “probable cause.”

A “crime” within the meaning of the Criminal Code of Georgia has been generally defined as being “a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. Nevertheless, it has long been recognized that it is unlawful “ ‘to drive an automobile on a public highway at night with but one headlight burning’ ” and it is not error to so instruct a jury. Loudermilk v. State, 41 Ga. App. 286 (1) (152 SE 593). The primary purpose of the statutes promulgated in Title 40 OCGA Ch. 8, Equipment & Inspection of Motor Vehicles, is to “promote safety” on the roadways of this state. See e.g. OCGA § 40-8-2; Black v. State, 34 Ga. App. 449, 451-452 (130 SE 591). Under our State Constitution, it is the “paramount duty of government” to provide for the protection of persons and property within its sovereign borders, Ga. Const. Art. I, Sec. I, Par. II, and the General Assembly is vested with the power to make all laws “necessary and proper for the welfare of this state” that are not repugnant to our State and Federal Constitutions. Ga. Const. Art. Ill, Sec. VI, Par. I. The General Assembly has in part fulfilled its constitutional obligation to safeguard the public safety by enacting certain “strict criminal liability” motor vehicle safety statutes, which can be violated and enforced of necessity though a criminal sanction without a showing of mens rea or guilty knowledge on the part of the violator. OCGA §§ 40-8-20 and 40-8-22 are examples of such safety statutes. With strict criminal liability statutes “although it must be shown that the defendant committed the acts or omissions for which he is being held responsible, the requirement of proving mental fault or mens rea is dispensed with.” Davis v. Peachtree City, 251 Ga. 219, 220 n. 1 (304 SE2d 701); see generally 22 CJS, Criminal Law, § 30. Further, we find, based on a “substantive due process analysis which considers both the interest of the public and the individual and whether, considering the legitimate public [highway safety] interests involved, there are other, less onerous means by which the public [highway safety] interest might be protected,” that there are no other effective means of protecting the public against the clear and imminent danger of inadequately headlighted motor vehicles being driven on public roadways at night. See Davis v. Peachtree City, supra at 220. Having determined that the statute in question is primarily a safety statute which legitimately imposes strict criminal liability for the inherently dangerous acts therein prohibited, we now address the sufficiency of the evidence to support a criminal conviction of such a statute. We find ample evidence of record by which any rational trier of fact could conclude that the appellant was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, supra. Appellant’s assertion of error is without merit.

2. Relying on Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344); Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39), and In re Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368), appellant contends that the charge given the jury, regarding the rebuttable presumption of sanity and the permissible inferences that may be drawn therefrom, prejudicially shifted the burden of proof from the State to the appellant. We disagree. Lingerfelt v. State, 255 Ga. 180 (4) (336 SE2d 250); see Nevins v. State, 180 Ga. App. 260 (349 SE2d 17). The trial court could permissibly join the charge of rebuttable presumption of sanity with the Lingerfelt permissible inference charges if he, in his sound discretion, believed that such joinder would aid the jury in better understanding the principles of law relevant to the disposition of the case. This assignment of error is without merit.

Decided November 4, 1988.

Harrison & Harrison, G. Hughel Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.

Appellant’s other assertions do not merit discussion.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    76461.
    LOUIS et al. v. CITIZENS & SOUTHERN BANK OF DUBLIN.
    (375 SE2d 82)
   Pope, Judge.

Josseline Louis and Moganue Pierre Louis filed suit in Laurens County Superior Court against the Citizens & Southern Bank of Dublin (C & S), alleging that they were the named payees of two cashier’s checks in the amount of $5,000 each, upon which their endorsements were forged; and that C & S paid these instruments in accordance with the forged endorsements, thereby converting their property and damaging them in the amount of the instrument. They further sought attorney fees and exemplary damages of $100,000 each because of the intentional conversion of their property. C & S answered, contending inter alia that its payment of the items in issue was done in good faith and in accordance with the reasonable commercial standards of banking, and any loss suffered by the plaintiffs was through their own negligence.

The evidence presented at trial showed that Arnold Pierre Louis, a citizen of Haiti, was employed in Waycross, Georgia as a turpentine worker when he was killed in a tractor-trailer collision in 1983. Frankie Lee Perry, an undertaker in Waycross, testified that he had buried the deceased. Subsequently, Perry was contacted by Vainer Jean Baptiste, the deceased’s half-brother, who asked for Perry’s assistance in handling the estate. The two men went to Haiti, where the decedent’s family resided, and Perry was appointed administrator of the estate and guardian of the two minor children of Arnold Pierre Louis. In order to distribute the proceeds of the estate, which the family intended to use to build a home, Perry purchased two cashier’s checks on December 17, 1983 in the amount of $5,000 each from the Farmers & Merchants Bank of Lakeland, Georgia. One of the checks was made payable to Helene Periclesse and Moganue Pierre Louis, the mother and father of the deceased, and the other to his widow, Josseline Louis. Because of the political unrest and corruption in Haiti, Perry did not want to mail these checks to the payees, so he agreed to allow Baptiste, who had planned to return there, to deliver them.

Baptiste maintained a checking account at the appellee C & S Bank in Dublin, Georgia, and on December 27 and 29, 1983, the two checks were deposited in his account. At the time the checks were presented for deposit they bore what appeared to be the endorsements of the named payees followed by the endorsement of Baptiste. One check was deposited in full to Baptiste’s account and the other was a “split” deposit, in which Baptiste retained $800 in cash and deposited the remaining $4,200. Subsequently, C & S received a letter dated March 21, 1984, from counsel for appellants stating that he represented Perry as guardian of the minor children, and inquiring as to the whereabouts of Baptiste and how the endorsements were obtained on the checks. Bob Stout, C & S’s operations officer, testified that after he investigated and was unable to locate Baptiste, he “flagged” Baptiste’s account so that the next time he came in the bank he was instructed to go see Stout. As of March 21, 1984, Baptiste had a $150 balance in his account.

Over appellants’ objection Stout was allowed to testify that when Baptiste returned to the bank Stout questioned him about the endorsements on the checks and Baptiste told him he went to Haiti and the payees endorsed the checks “with instructions to him to return to the States and send them money as needed on a kind of on-going basis, . . .” which “sounded logical” to Stout. When asked to show some proof that money had been sent to the payees, Baptiste produced a valid money order receipt and told Stout that he had other receipts at home. Stout asked him to produce these receipts so he could respond to the letter from appellants’ lawyer, but Baptiste never returned.

By letter dated June 19, 1984, appellants’ attorney notified Stout that the checks were not endorsed by the payees, that Baptiste was not authorized to endorse them, and that since they were wrongfully honored demand was made for reimbursement. The testimony of appellants consisted of questions and translated responses to written depositions read in court. Both Josseline Louis and Moganue Pierre Louis denied receiving any money, endorsing the checks, or authorizing Baptiste to deposit the checks and forward the money to them. Baptiste did not return to Haiti after Perry was appointed administrator of the estate, and appellants gave no instructions to Baptiste or anyone acting in their behalf concerning the delivery of any money, property or checks to them in Haiti. The jury returned a verdict in favor of C & S, and appeal is brought from the judgment entered thereon. Held:

1. Under cross-examination Stout was asked whether, if he had received an affidavit of forgery, C & S would have repaid the appellants the $10,000 deposited to Baptiste’s account. He replied that under such circumstances he would have been obligated to return these funds to the drawee bank, and that the reason this was not done was because no affidavit of forgery had been received. Appellants contend that these statements constitute a binding admission in judicio that C & S is liable to them for payment on the checks.

We do not agree. When all of the testimony is considered as a whole, it is clear that this one isolated response did nothing more than to establish the procedures generally utilized by commercial banking institutions, as testified to by Stout and two other witnesses from the banking industry. Also, Stout later clarified that he would have sought legal advice at the time of presentment of an affidavit of forgery to determine whether it should be honored or not. Indeed, OCGA § 11-3-419 (3) provides that when an instrument is paid on a forged endorsement, subject to provisions concerning restrictive endorsements, a bank representative “who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.” Assuming the date of notice to C & S to be the letter of March 21, 1984, that amount was $150.

Moreover, C & S was entitled to rely on the presumption that it’s customer, Baptiste, was acting lawfully as agent for the named payees, and was authorized by OCGA § 7-1-352 to apply the deposits as ordered. See National Bank of Ga. v. Weiner, 180 Ga. App. 61, 65 (348 SE2d 492) (1986); Bank South v. Grand Lodge, 174 Ga. App. 777 (1) (331 SE2d 629) (1985). The jury could have further found from the evidence that it was the negligence of Perry in turning over the checks to Baptiste for delivery, rather than any negligence on the part of C & S, that precipitated the ensuing forgery. These valid defenses were in no way foreclosed by one statement of Stout, which considered in the context of his entire testimony, failed to constitute a solemn admission in judicio of the liability of C & S on the checks.

2. We are likewise unpersuaded by appellants’ arguments that Stout’s testimony concerning his conversation with Baptiste was inadmissible on the grounds of hearsay and irrelevancy. “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” OCGA § 24-3-2. In light of the appellants’ demand for punitive damages, the conduct and motives of C & S in investigating Baptiste’s whereabouts, as requested by the letter from appellants’ attorney, was certainly material to the question of its liability for acting in bad faith. See Commercial Union Ins. Co. v. Smith, 179 Ga. App. 734 (347 SE2d 701) (1986). If Stout reasonably believed that Baptiste was acting legitimately as an agent for his family in Haiti, then according to reasonable commercial banking standards no further investigation was required. See OCGA § 7-1-352; Trust Co. of Ga. v. Nationwide Moving &c. Co., 235 Ga. 229 (219 SE2d 162) (1975); National Bank of Ga. v. Weiner, 180 Ga. App. at 64-65. Thus, the trial court did not err in admitting this evidence for whatever weight and credit the jury might give it.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

On Motion for Rehearing.

On motion for rehearing appellant argues that this court “has erroneously applied OCGA § 24-3-2 in allowing the admission of hearsay testimony to explain conduct which was not relevant to any issue in the case”; and “has overlooked and failed to consider the fact that hearsay testimony, allegedly admitted to explain conduct under OCGA § 24-3-2, was admitted for all purposes.” Appellant’s conclusion that OCGA § 24-3-2 prohibited admission of the statements of Vainer Jean Baptiste through Stout’s testimony is unwarranted, as hearsay evidence is governed by OCGA § 24-3-1. Stout’s testimony concerning his conversation with Baptiste was admissible as original evidence under OCGA § 24-3-2, not to prove whether Baptiste went to Haiti and obtained the endorsements of the payees on the checks, but to show why Stout acted in the manner in which he did.

The Supreme Court in Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), citing Greenleaf, Evidence (5th ed. 1850), distinguished the hearsay exception found in OCGA § 24-3-1 and explained the purpose of OCGA § 24-3-2, stating: “ ‘it does not follow, because the writing or words in question are those of a third person, not under oath, that therefore they are to be considered as hearsay. On the contrary, it happens in many cases, that the very fact in controversy is, whether such things were written, or spoken, and not whether they were true. . . .’ Id. at p. 127. Greenleaf then wrote: ‘Thus, where the question is, whether the party acted prudently, wisely or in good faith, the information, on which he acted, whether true or false, is original and material evidence. . . . This doctrine applies to all other communications, wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy.’ (Emphasis in original.) Id. 127 to 129. ... In addition, it appears that [OCGA § 24-3-2] should be understood not as an exception to the rule against hearsay but as an explanation of what is not hearsay. Green, Ga. Law of Evidence, § 288 (1957).” (Indention omitted.) 249 Ga. at 866-867.

Decided October 14, 1988 —

Rehearing denied November 7, 1988

Sutton, Reddick, Hackel & Hackel, Berrien L. Sutton, for appellants.

Robertson & Bobbitt, Morris S. Robertson, for appellee.

Stout’s testimony that Baptiste represented himself to be acting on behalf of appellants when he deposited the checks in his account was relevant to explain Stout’s subsequent conduct in pursuing an investigation into the matter, not as to whether Baptiste’s statements were true or false. Since this conduct was material to the issue of whether C & S acted in good faith, the testimony was admissible under OCGA § 24-3-2. Athena Prods, v. Geographies, 168 Ga. App. 828 (2) (310 SE2d 547) (1983).

Motion for rehearing denied.


author: Beasley, Judge.

text:
    76545.
    STARKS v. ROBINSON et al.
    (375 SE2d 86)
   Beasley, Judge.

Plaintiff Starks appeals from a judgment entered on a jury verdict in his favor but not for the full amount claimed. He enumerates as error: 1) the trial court’s refusal to permit the voir dire examination of jurors as to counsel for the two uninsured motorist carriers; 2) the trial court’s comment on the evidence which plaintiff contends violates OCGA § 9-10-7; 3) the granting of a directed verdict as to one of the two defendants; 4) the trial court’s permitting counsel for defendant Robinson to argue to the jury how to apply the law of comparative negligence.

Plaintiff, riding a motorcycle, had just come over the top of a hill when he was confronted by two stopped automobiles which effectively blocked the road because the one driven by defendant Austin was in the left lane and the other driven by defendant Robinson was in plaintiff’s lane of travel on the right. Plaintiff applied his brakes but was unable to stop in time. He then attempted to pass by on the shoulder to the right, but at that moment defendant Robinson pulled her automobile over to the shoulder. As a result, plaintiff’s motorcycle struck defendant Robinson’s automobile and became airborne, striking part of a fence and throwing plaintiff to the ground. For injuries sustained, plaintiff sued Austin and Robinson.

They filed answers as did Standard Guaranty Insurance Company and Motors Insurance Company, two carriers of uninsured motorists coverage. After pre-trial conference at which the two insurers participated, the case came to trial. Plaintiff’s counsel requested permission to voir dire the prospective jurors regarding their relationship or acquaintance with the two insurance companies’ counsel. They objected, stating that they did not intend to participate fully in the trial. After an extended discussion during a bench hearing, these counsel withdrew and agreed to waive both the right to participate in any manner in the trial and any objections to the conduct of it. The trial court denied to them any option to change their minds in this regard and informed counsel: “Once you are out of it, you are out of it.” Plaintiff’s voir dire was therefore limited to obtaining information about knowledge or acquaintance by prospective jurors concerning the insurance companies but not their counsel.

1. OCGA § 33-7-11 (d) requires service upon an insurance company furnishing uninsured motorist protection and affords it the status of a party if it so chooses. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 168 (268 SE2d 676) (1980); Doe v. Moss, 120 Ga. App. 762 (172 SE2d 321) (1969). The insurance companies did opt to participate by filing pleadings and engaging in the pretrial conference. Plaintiff therefore contends that as a consequence, OCGA § 15-12-133 grants him the right to inquire regarding “the relationship or acquaintance of the juror[s] with the parties or counsel therefor.”

That statute is broad, but the trial court still retains the discretion to limit the examination to questions dealing directly with the specific case. Chastain v. State, 255 Ga. 723, 724 (1) (342 SE2d 678) (1986). Waters v. State, 248 Ga. 355, 363 (3) (283 SE2d 238) (1981). After the court carefully insured that counsel for the insurance companies had withdrawn fully from further participation in the trial, a question as to a juror’s relationship or acquaintance with counsel was no longer relevant or material to any issue. Plaintiff was allowed to inquire whether any prospective juror had gained any knowledge of the case from any outside source or had any relationship or acquaintance with the insurance companies. No abuse of the trial court’s discretion is shown.

2. During cross-examination of defendant Robinson, counsel for plaintiff attempted over objection to show that her trial testimony contradicted her prior deposition testimony. When ruling on admissibility, the trial court stated: “I don’t see anything contrary in the deposition that you have read — contrary to what she testified to at the scene.” Plaintiff contends this was a prohibited comment on the evidence proscribed by OCGA § 9-10-7.

While generally the judge should not express within the jury’s hearing his or her opinion as to what has or has not been proved, “such an expression or intimation, when not flagrant, is not a [code] violation” when made during discussion with counsel concerning the admissibility of testimony or in explaining the ruling. York v. State, 42 Ga. App. 453, 457 (21) (156 SE 733) (1930). Miller v. State, 122 Ga. App. 553, 554 (3) (177 SE2d 838) (1970). The court has the right to explain its decision on objections to evidence and, if pertinent, such reasons do not constitute prohibited expressions of opinion. Reed v. State, 163 Ga. 206, 213 (2) (135 SE 748) (1926). No violation occurred here.

3. Plaintiff contends that the trial court erred in directing a verdict in favor of defendant Austin for lack of any evidence as to his negligence. Austin had been flagged down by a pedestrian and was stopped in the left lane of travel. Robinson stopped in the right lane to speak to Austin. The conjunction of the two cars effectively blocked plaintiff’s progress on the road. A jury could have found that plaintiff’s correct maneuver when faced with the emergency was to have passed on the left, but that Austin sealed off that route and thereby negligently contributed to the wreck.

The jury, apparently applying comparative negligence, found for plaintiff in the sum of $6,500 which we must assume to be the total amount of his damages. Even if the ruling in favor of Austin is error, plaintiff cannot complain that one defendant was released because he failed to show his entitlement to a greater recovery in any case, whether against one or two defendants. Absent a showing that the jury was influenced to reduce plaintiff’s recovery, Bennett v. Kuhlke & Assoc., 156 Ga. App. 110, 113 (274 SE2d 14) (1980), or that he was otherwise jeopardized (there admittedly being insurance to cover the judgment), the error was harmless.

4. During argument to the jury, defendant’s counsel proposed to the jury a method by which they could compare the negligence of plaintiff with that of defendant. Defendant started with the assumption that 100 percent of the total negligence accounted for all of plaintiff’s injuries, and with the principle that where plaintiff’s negligence equals or exceeds that of defendant then plaintiff may not recover. He reasoned that, assuming defendant was 60 percent negligent and plaintiff 40 percent, plaintiff’s negligence should be subtracted from defendant’s, yielding for plaintiff a 20 percent recovery of his total damages.

Plaintiff objected to this method of calculation but the court permitted it and informed plaintiff he could advance the measure he thought proper. In his brief to this court, plaintiff relies upon Georgia R. & Power Co. v. Belote, 20 Ga. App. 454 (2) (93 SE 62) (1917): “Where the negligence of the plaintiff equals or exceeds that of the defendant, there can be no recovery; but if the negligence of the plaintiff is less than that of the defendant, and the plaintiff is otherwise entitled, under the pleadings and the testimony, to recover against the defendant, the total amount of damages in dollars and cents should be diminished in proportion to the amount of default attributable to the plaintiff.” See OCGA § 46-8-291, a progenitor with OCGA § 51-11-7 of our comparative negligence rule. Central of Ga. R. v. Rountree, 10 Ga. App. 696 (3) (73 SE 1095) (1912); Ga. Power Co. v. Maxwell, 52 Ga. App. 430, 431 (2) (183 SE2d 654) (1936). The court in Belote explained that if defendant were 2/3 negligent and plaintiff 1/3, plaintiff’s negligence of 1/3 would be subtracted from the total equalling 3/3 and he would recover 2/3 of his entire damages.

This method is undoubtedly correct (assuming the,validity of any mathematical formula) in a “pure” comparative negligence jurisdiction where if plaintiff is 90 percent negligent and defendant only 10 percent, plaintiff can still recover, but with a diminution of the amount of his damages in proportion to the degree of negligence attributable to him. AmJur2d New Topic Svc., Comparative Negligence § 10, page 13. Although the Georgia courts have not adopted this method, and Georgia is not a “pure” comparative negligence jurisdiction, our federal district and appeals courts have consistently utilized the Belote rule when applying Georgia law, only in cases where plaintiff’s negligence is less than defendant’s. Southern R. Co. v. Neely, 284 F2d 633, 638 (5th Cir. 1960); Southern R. Co. v. Campbell, 309 F2d 569 (5th Cir. 1962); Southern R. Co. v. Brunswick Pulp &c. Co., 376 FSupp. 96,103 (U. S. Dist. Ct., S. D. Ga. 1974). See also Atlantic C. L. R. Co. v. Key, 196 F2d 64, 67 (5th Cir. 1952); Gross v. Southern R. Co., 414 F2d 292, 300 (5th Cir. 1969). Because the Georgia 50/50 barrier is an artificial one, this is a sound approach where the sum of the parties’ negligence equals 100 percent of the incident’s cause. See 57 AmJur2d 877, Negligence, §§ 446; 449-451. Nevertheless, the Georgia courts have not adopted it.

In McDonald v. Vaughan, 115 Ga. App. 544 (154 SE2d 871) (1967), where the total special damages were $2,900 and plaintiff only recovered $1,300, plaintiff argued that, to authorize the verdict in her favor could only denote a finding that defendant’s negligence exceeded her own and, under the comparative negligence rule, her damages could not be reduced to less than 51 percent. The court observed that the cases “support any apportionment of damages the jury sees fit to make when the negligence of both parties contributes to the injuries but the plaintiff’s to a lesser degree than the defendant’s.” Accord Wright v. Satilla Rural Elec. Co-op., 179 Ga. App. 230, 232 (2) (345 SE2d 892) (1986); Far gason v. Pervis, 138 Ga. App. 686 (1) (227 SE2d 464) (1976). Thus, while we cannot agree that defendant presented a sound method for computing comparative negligence damages, the failure to sustain the objection to his argument was not reversible error.

This is particularly true in view of the unchallenged jury charge on the subject: “Now, if you find that the defendant was negligent in some way, and you also find that the plaintiff was negligent in some way, then the combined negligence of the plaintiff and the defendant totaling a hundred percent of the negligence involved in the case — then the combined negligence of the two caused the wreck; and then I’m going to give you a formula by which you may — that you may apply in arriving at how much, if any, the defendant owes the plaintiff; and that is termed comparative negligence.

“If you find there was such negligence of the defendant as to make the defendant liable to the plaintiff and you further find there was some negligence on the part of the plaintiff constituting — contributing to his injury and damage, but such negligence of the plaintiff was less than defendant’s negligence, then I instruct you that this negligence on the part of the plaintiff would not prevent his recovery of damages in this case, but would require that you reduce the amount of damages, which would otherwise be awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendant.”

Judgment affirmed.

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

On Motion foe Rehearing.

Movant/appellant contends that our decision failed to follow certain cases which were more recent than those cited in the opinion as well as others which are urged as controlling. To clear up any misapprehension, although our Supreme Court has abolished the compulsive aspect of stare decisis for its decisions, Hall v. Hopper, 234 Ga. 625, 629 (3) (216 SE2d 839) (1975), it still remains as a persuasive force. Simpson v. Dickson, 167 Ga. App. 344, 346 (306 SE2d 404) (1983). Moreover, our rules provide “if there is a special concurrence without a statement of agreement with all that is said in the opinion or concurrence in the judgment only, it shall be a physical precedent only.” Court of Appeals Rule 35 (b). Thus, assuming there was a conflict, we are not compelled to adopt a recent decision of ours rather than one of more ancient vintage nor will we follow a decision in which one judge concurred in the judgment only (see e.g. Karlan v. Enloe, 129 Ga. App. 1 (198 SE2d 331) (1973)) in preference to several cases generally concurred in by all the judges on the division (see McDonald, supra, and cases cited in Division 4 of the opinion).

This court is bound by Whaley v. Sim Grady Machinery Co., 218 Ga. 838 (131 SE2d 181) (1963). See 1983 Ga. Const., Art. VI, Sec. VI, Par. VI. However, we did not overlook that previously cited case (see Court of Appeals Rule 48 (f)) which recognized the sound discretion of the trial court and only mandated that the requirements of what is now OCGA § 15-12-133 be observed. That code section confers the right to question a prospective juror regarding “the relationship or acquaintance of the juror with the parties or counsel therefor.” Counsel had withdrawn and been excluded from any participation in this case and, as was held in the original opinion, the trial court did not err in refusing to permit specific questions regarding them.

Decided October 14, 1988 —

Rehearing denied November 7, 1988

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. McCune, for appellant.

Greene, Buckley, DeRieux & Jones, Frank C. Schenck, John D. Jones, for appellees.

Judgment adhered to.


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

text:
    76758.
    WHATLEY v. THE STATE.
    (375 SE2d 245)
   Banke, Presiding Judge.

The appellant was convicted of gambling, commercial gambling, possession of more than an ounce of marijuana, and possession of a firearm by a convicted felon. He appeals from the denial of his motion for new trial. Held:

1. The appellant asserts that the commercial gambling conviction was not supported by the evidence and that the trial court thus erred in denying his motion for a directed verdict on this count. The appellant was charged with violating OCGA § 16-12-22 by “intentional[ly] operating] and participating] in the earnings of a gambling place.” The term “gambling place” is defined by OCGA § 16-12-20 (3) as “any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the principal uses of which is the making or settling of bets; the receiving, holding, recording, or forwarding of bets or offers to bet; or the conducting of a lottery or the playing of gambling devices.” (Emphasis supplied.) The state was, of course, required to prove a violation of the statute in the manner charged in the indictment. See Patterson v. State, 181 Ga. App. 68 (351 SE2d 503) (1986).

All of the charges against the appellant were predicated on evidence seized from his home during the execution of a search warrant for marijuana. The evidence offered in support of the commercial gambling charge consisted of the following: Several hundred parlay stubs and a notebook containing notations on football games and betting amounts, all of which were seized from a coffee table in the living room; a bank bag containing parlay sheets and football “line sheets” seized from his bedroom; and a second notebook containing betting notations seized from an undisclosed location in the house. No evidence was presented indicating the length of time any of these items had been on the premises, nor was there any evidence that gambling activity was occurring there on an ongoing basis.

Under the circumstances, there is no evidentiary basis whatever for an inference that the conduct of gambling operations was “one of the principal uses” of the residence, and there is consequently no basis for a conclusion that the house was being used as a “gambling place” within the meaning of the statute. The appellant’s conviction on the commercial gambling charge is accordingly reversed.

2. The appellant contends that certain statements which he made following his arrest should have been excluded from evidence on the ground that they were induced by threats on the part of the police. The evidence introduced at the Jackson u. Denno hearing disclosed that after he had been placed under arrest and given his Miranda warnings, the appellant advised the police that he desired an attorney, whereupon the police ceased all questioning but advised him that both he and his wife would be charged with violation of the Controlled Substances Act and gambling. Thereafter, the appellant, of his own initiative, expressed a desire to discuss the matter further with the police, who reminded him of his election to have an attorney. The appellant then waived his right to an attorney and proceeded to acknowledge sole ownership of the illegal items found at his residence.

“[A]n accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U. S. 477, 484, 485 (101 SC 1880, 68 LE2d 378) (1981). (Emphasis supplied.) As the evidence of record shows that the officers immediately ceased their interrogation of the appellant when he requested counsel and that it was he who thereafter initiated further communication between them, the trial court was authorized to conclude both that the statements were made freely and voluntarily and that they were not elicited in violation of the appellant’s right to counsel.

3. In his third enumeration of error, the appellant contends that the trial court erred in refusing to grant him a directed verdict on the marijuana possession charge because it was shown that others had equal access to the premises. However, the transcript reflects that the appellant confessed to the police that the marijuana was in fact his. Consequently, this enumeration of error is without merit.

4. Finally, the appellant contends that the trial court erred in refusing to grant him a directed verdict on the marijuana possession charge on the ground that there was no evidence to prove that more than an ounce of marijuana was seized. We observe that the appellant did not assert the state’s failure to prove the weight of the marijuana in the trial court as a ground for his motion for directed verdict, an omission which, technically speaking, renders this enumeration of error meritless. However, we will nevertheless address the appellant’s underlying argument that there was a failure of proof as to the marijuana conviction, since the sufficiency of the evidence in a criminal case may always be addressed on appeal, even in the absence of an enumeration of error specifically raising the issue. See Redmond v. State, 252 Ga. 142 (1) (312 SE2d 315) (1984).

While the state established that the appellant was in possession of the marijuana, there was indeed no evidence to establish its weight; and in the absence of such evidence there was no basis for treating the offense as a felony. See OCGA § 16-13-2 (b); Taylor v. State, 144 Ga. App. 534 (2) (241 SE2d 590) (1978). We reject the state’s contention that defense counsel cured this omission during his argument for a directed verdict on equal access grounds, by making the statement that “the 2.7 ounces of marijuana were found outside the home.” To be considered binding against his client as a stipulation of fact, a statement made by counsel during the trial of a case must constitute a “[d]istinct and formal admission [ ] of fact. . . made for the express purpose of dispensing with formal proof.” 7 AmJur2d Attorneys at Law, § 151, p. 208. (Emphasis supplied.) Cf. Nat. Assn, for Advancement of Colored People v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957); McCoy v. McSorley, 119 Ga. App. 603, 604 (2) (168 SE2d 202) (1969).

Viewed in the context in which it was made, the statement at issue obviously cannot be considered a distinct and formal admission of fact made for the express purpose of dispensing with formal proof on the issue of the weight of the marijuana; and in any event, the statement was not made in the presence of the jury nor otherwise brought to its attention. Thus, it clearly could not have provided the basis for the jury’s finding that the appellant was in possession of more than an ounce of marijuana. While it is conceivable that the jurors might have been authorized to determine that the marijuana weighed more than an ounce by examination of the physical evidence itself if the actual weight had been, say, a pound or more, we cannot presume that they were equipped to make such a determination under the circumstances as they actually existed. The appellant’s felony sentence for marijuana possession is consequently vacated, and the case is remanded to the trial court for the imposition of a misdemeanor sentence on this count.

Judgment affirmed in part, reversed in part, and vacated with direction in part.

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

Deen, Presiding Judge,

dissenting.

While concurring fully with the dissent of Judge Beasley, additional comments are appropriate. As pointed out in the majority opinion, the issue is whether a “house was being used as a ‘gambling place’ within the meaning of the statute.”

The defendant was “ ‘at the house of Mrs. Frank Lomax, gambling’; that they were ‘shooting craps for a quarter on a corner.’ . . . We may say en passant that the humble ‘crap shooter’ is more frequently detected by the vigilant officer than the aristocratic ‘poker player.’ . . . [W]e do not think the jury had any trouble in understanding what was meant.” Sims v. State, 1 Ga. App. 776, 776-777 (57 SE 1029) (1907).

Gambling is gambling no matter what its title. “Gambling like many other practices in modern life has had its evolution and in no field has the wit of man been shrewder but the courts have generally held that, if the elements constituting gambling are present, the name by which called will not defeat the penalty.” Creash v. State, 179 S. 149, 152 (Fla. 1938).

Beasley, Judge,

dissenting.

I concur in Divisions 2, 3, and 4 but respectfully dissent with respect to Division 1.

1. The indictment charges that defendant did “intentionally operate and participate in earnings of a gambling place, ... a residence. . . .” This is a violation of OCGA § 16-12-22 (a) (1).

A “gambling place” is defined as any “building ... or other property whatsoever, one of the principal uses of which is . . . the receiving, holding, recording, or forwarding of bets or offers to bet; . . . .” OCGA § 16-12-20 (3).

In defendant’s house were found, and introduced into evidence along with explanation by an Internal Revenue Service agent as an expert, the following items: approximately 300 parlay sheet stubs for football games, the majority of which bore names or initials as well as written dollar amounts; football line sheets; a bank bag with 3 complete parlay sheets; a paper with the handwritten words “Whatley 8 Parlay”; a ledger notebook with about 10 pages of handwritten names, football team names, dates, and dollar amounts; a notebook upon which was handwritten “Carlton N. Left. 137.50 will call Bet in 10/26/86 -Sat- $100.00 Mich St — 21”; a paper with a newspaper clipping of world temperatures taped to it and the handwritten notation “Pick three cities with the hightes (sic) temp or three with the lowest. All cities most circle. Ties Loses (sic).” These items were in various parts of defendant’s house.

Decided October 18, 1988 —

Rehearing denied November 7, 1988

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Although the obvious principal use of defendant’s house was as his and his family’s residence, the statutory definition of gambling places does not exclude residences or places used primarily as residences. It embraces buildings “one of the principal uses of which is” one of the forbidden activities. The proscribed conduct includes “holding . . . bets or offers to bet.” It also includes “recording . . . bets or offers to bet.” These would be included in the prohibition against “operating or participating in the earnings of a gambling place.”

There being evidence that defendant was engaged in such activity, and that one of the principal uses of his residence was to hold the bets and house his recording activity, the conviction of commercial gambling should be affirmed. “[T]he definition of ‘gambling place’ in § 16-12-20 (3) is sufficiently clear to warn persons of ordinary intelligence of what places to avoid, and is sufficiently clear to discourage or preclude arbitrary enforcement decisions concerning what places constitute ‘gambling places.’ ” Izzo v. State, 257 Ga. 109, 110 (356 SE2d 204) (1987).

2. As to Division 4, compare Dunn v. State, 178 Ga. App. 6 (1) (341 SE2d 877) (1986).

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


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

text:
    76828.
    PINKNEY v. VMS REALTY, INC. et al.
    (375 SE2d 90)
   Banke, Presiding Judge.

The appellant sued to recover for personal injuries which she allegedly sustained when she stepped off the edge of a ramp in a multilevel parking garage owned and/or operated by the appellees and fell a distance of approximately one foot to the surface below. She appeals the grant of the appellees’ motions for summary judgment.

The accident occurred at approximately 9:30 p.m. on July 18, 1985. At her deposition, the appellant described the incident as follows: “As I was getting out of my car I was walking towards the security guard to ask him [directions], and I fell, literally fell, in the middle of the sentence. ... I fell off of an incline. . . . Right here is a curb that you can’t see and it wasn’t very well lit and there was no sign watch your step or ... a rail or anything there. And I didn’t see it. ... I was just casually walking towards the security guard . . . and I was talking at the same time [asking directions] and I just walked and all of a sudden I was on the ground. . . .” She said that after she fell, she looked back and commented that they needed to install a light or something, “because ... it [the drop-off area] blends right into the street. You can’t see it.”

The appellant conceded that she was aware of the existence of the ramp and that she could have seen the drop-off if she had “looked for it very closely,” but she indicated that its location was not readily observable because the two levels appeared to blend together due to the poor lighting and the absence of any railings or warning markers. She further acknowledged that she had seen such drop-offs on ramps in parking lots before but maintained that there had normally been a guard rail or something to call attention to them. She stated that had the ledge “been marked or had there been brighter lighting, I would have noticed the curb. ...”

In granting the appellees’ motions for summary judgment, the trial court concluded that the appellant was negligent as a matter of law in not looking where she was walking and that, even if the lighting in the parking deck had been poor, she had assumed the danger because “the lack of light was as observable as the walkway.” Held:

“[A]n invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects. (Cits.)” Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982). “Looking continuously, without intermission, for defects in a floor is not required in all circumstances. (Cits.) ‘What is a “reasonable lookout” depends on all the circumstances at the time and place.’ (Cit.)” Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966). See also Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (227 SE2d 336) (1976); Fletcher v. Family Center, 169 Ga. App. 376, 377 (312 SE2d 856) (1983).

Since the appellant was the respondent on motion for summary judgment and since she did not materially contradict herself, her testimony must be construed in her favor. See generally Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29-30 (343 SE2d 680) (1986). Although she conceded her obvious knowledge that she was parked on a ramp and further conceded that she would have been able to see the ledge had she been looking down at it “very closely,” she explained that her attention was focused on the security guard and that, due to the poor lighting and the lack of any guard rails or warning markers, the two levels appeared to blend together. Whether her failure to see the ledge constituted a lack of due care for her own safety under these circumstances and whether, if so, her negligence outweighed any possible negligence on the part of the appellees in failing to provide a guard rail, warning markers, and/or better lighting are issues of fact to be resolved by a jury. See Ellington v. Tolar Constr. Co., supra, 237 Ga. at 237; Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178) (1970). Accordingly, we hold that the trial court erred in granting the appellees’ motions for summary judgment.

Judgment reversed.

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

Birdsong, Chief Judge,

dissenting.

The majority in this slip and fall case, recognizing that much of the plaintiff’s testimony is equivocal, and citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), construes that testimony in her favor to reverse the trial court’s summary judgment to defendant. Prophecy Corp., however, allows such equivocal testimony to be construed in the party’s favor only if it be reasonably explained. Id., p. 30.

Where the plaintiff Pinkney has attempted to explain her statements further, she says a good deal which is not equivocal, and which does not “reasonably explain” her other testimony, but rather conclusively and unequivocally establishes her own fault in her fall.

She testified: “[I was aware] that there were inclines leading from one level [of the parking garage] to another . . . [and that I was] parking next to an incline or a ramp area where [I parked my] car.” She testified further that she knew there was a ramp next to where she parked or an area with a ramp leading to a different level; she said, “I was right there at the ramp, but I didn’t expect to step off that way. ... [I] knew the ramp was there ... I could see it . . . [but] I was not looking down [at the curb where I was walking]. ... I was aware of the ramp. ... [I] knew there was only a few feet from the position where [I parked my] car. . . . [B]ut I was not expecting . . . a step down curb. ... I wasn’t expecting something just like that. . . .”

To the question: “[E]ven though you knew the ramp was there, you didn’t look down to see where you were going, to see what type of step off or ramp embankment there might have been,” she responded: “No, I didn’t.” She testified that if she had looked down, she could not have seen the drop-off readily, but that she would have seen it “[h]ad I looked for it.”

Decided October 14, 1988 —

Rehearings denied November 7, 1988

Ellerin & Williams, Irwin M. Ellerin, Osgood A. Williams, for appellant.

To the question: “[Y]ou knew that the ramp was there when you pulled into your parking space, right,” she replied, “I was aware of that, yes, I was.” “And you knew it was only a few feet from your car when you pulled in?” “Yes, I saw the ramp there.” “And had you looked down you could have seen the drop-off or the curb onto the rampway?” “I would have to look very closely. ... [I] would have difficulty seeing it. . . . [I would] have to look very closely”; but she admitted that though its appearance blended in with the floor, she could have seen the drop-off, “if I had looked very closely.”

She also admitted that she had seen a ledge drop-off on a ramp in a parking lot before, in several parking ramps, but there would be a guard rail or something to call your attention to the drop-off. In this garage, when she pulled into her parking space she had noticed the ramp to the left of her and could look down to the next ramp, and she was aware that she was “on levels,” and had seen such a drop-off in other parking lots.

Clearly Pinkney was aware of the potential danger in parking where she did, and was in fact aware of the ramp. The fact alone that there was a flaw or defect, i.e., negligence, in the proprietor’s failure to clearly mark the drop-off, does not render him automatically liable for an injury which occurred to one who was aware of the condition or knew it was nearby, but who simply failed to look. Almost any condition could become a hazard if persons fail to watch where they step. For other cases where plaintiffs simply were not careful to look where they were going, see Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538); Taylor v. McDonald, 183 Ga. App. 320 (359 SE2d 1); Emory Univ. v. Duncan, 182 Ga. App. 326 (355 SE2d 446); and Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7).

Appellant’s contention that even though she may have had knowledge of the drop-off, she did not have full appreciation of the risk involved, finds no favor. She has not alleged any infirmity of mind, nor has she suggested that any special talents would have been required of anyone to avoid stepping onto the drop-off. She simply was not looking where she stepped; this fact distinguishes this case from the cases she cites, Burkhead v. American Legion, 175 Ga. App. 56 (332 SE2d 311); and Pippins v. Breman, 152 Ga. App. 226 (262 SE2d 477). The defendants deserved summary judgment in this case.

I respectfully dissent. I am authorized to state that Judge Sognier, Judge Pope and Judge Beasley join in this dissent.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, Smith, Gambrell & Russell, Jane C. Carr, for appellees.


author: Pope, Judge. McMurray, Presiding Judge,

text:
    76934.
    FRYE v. THE STATE.
    (375 SE2d 101)
   Pope, Judge.

Defendant appeals his conviction of driving under the influence of alcohol. Held:

Defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing that the evidence was insufficient to support the jury’s verdict. We disagree.

The evidence at trial showed that at approximately 11:00 p.m. on a Sunday, Officer James Meadows of the Gwinnett County Department of Public Safety saw defendant “staggering to a degree on the right-hand side of the roadway [and,] approximately 100 yards down the road [, he observed] a Toyota that was turned upside down . . . on the right-hand side of the road.” Officer Meadows got out of his “patrol car” to investigate, found “no one inside the [overturned] car,” talked with an unidentified man and then apprehended defendant, who was “approximately 125 to 150 yards from the scene. . . .” Defendant was “unsteady” on his feet and his clothing was soiled, a fact which Officer Meadows attributed to defendant having crawled out of the overturned car. “He was unkempt [, his] eyes were watery [, his] face was fairly flushed [and he] had a strong odor of alcoholic beverages about his person. Defendant denied that he was driving the car, which was subsequently discovered to be registered to him. It was stipulated at trial that defendant was informed of his implied consent right and refused to take a blood alcohol test.

“It is true, . . . that to be guilty of the offense of driving under the influence of intoxicants one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol or drugs. Carr v. State, 169 Ga. App. 679, 680 (2) (314 SE2d 694) (1984). However, it is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. (Cit.) In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. (Cit.) Fuller v. State, 166 Ga. App. 734, 735 (1) (305 SE2d 463) (1983).

“Though the officer did not actually see [the defendant’s] car move, he observed circumstances from which the jury could infer both that [defendant] was in actual physical control of the car while it was moving to the location at which the officer found it and that [defendant] was intoxicated during that movement. The jury was authorized not to accept an alternative hypothesis offered by [defendant]. [Cit.]” Jones v. State, 187 Ga. App. 132, 133 (1) (369 SE2d 509) (1988). (Punctuation omitted.) As this court said in the case of State v. Hill, 178 Ga. App. 669 (344 SE2d 491) (1986), “[t]he jury is the best ‘doctor of doubt.’ ” Id. at 670. Because there was sufficient evidence presented from which a rational trier of fact could find defendant guilty beyond a reasonable doubt of the offense charged, we affirm the denial of defendant’s motion for directed verdict. Accord Jones v. State, supra at (1); Boose v. State, 185 Ga. App. 728 (365 SE2d 534) (1988); State v. Hill, supra; Fuller v. State, 166 Ga. App. 734 (1) (305 SE2d 463) (1983).

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I find the State failed to present sufficient evidence to authorize a finding, beyond a reasonable doubt, that defendant was in control of a moving vehicle while under the influence of alcohol.

OCGA § 40-6-391 (a) provides in pertinent part that “[a] person shall not drive or be in actual physical control of any moving vehicle while [under] the influence of alcohol.” Although driving a vehicle while intoxicated may be shown by circumstantial evidence, State v. Hill, 178 Ga. App. 669, 670 (344 SE2d 491), such evidence must exclude every other reasonable hypothesis in order to support a conviction. OCGA § 24-4-6. Further, it is axiomatic that the State must present sufficient evidence to authorize a finding that defendant is guilty beyond a reasonable doubt of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

The case of Jones v. State, 187 Ga. App. 132 (369 SE2d 509) (1988) relied upon by the majority is a case in which the arresting officer “spotted a vehicle stopped at a railroad crossing on a highway. [The officer] had patrolled the area some twenty to thirty minutes earlier and had not seen the car. . . . He pulled up beside the car, got out, and saw Jones slumped over the steering wheel. The car window was open, the engine was still running, and the transmission was in ‘drive.’ ” (Emphasis supplied.) I certainly agree with this court’s holding in Jones v. State, 187 Ga. App. 132, supra. While the facts and circumstances in Jones v. State, supra, would indeed authorize that jury to “infer both that Jones was in actual physical control of the car while it was moving to the location at which the officer found it and that Jones was intoxicated during that movement,” the evidence in the case sub judice was not sufficient to enable a rational trier of fact to find the defendant Frye guilty beyond a reasonable doubt of the offense charged. In the case sub judice, it is indeed peculiar that defendant was “staggering” some “125 to 150 yards from the scene . . .” of the overturned vehicle. However, the absence of evidence regarding the only other eyewitness to defendant’s arrest, the “unidentified man” who was at the scene when Officer Meadows arrived, is more peculiar. Was the unidentified man a witness to the incident which caused defendant’s vehicle to overturn? Was the man intoxicated? Was he a passenger in the overturned vehicle or could he have been the driver?

Decided October 20, 1988 —

Rehearing denied November 7, 1988

Harrison & Harrison, Samuel H. Harrison, G. Hughel Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

The mystery of the “unidentified man” adds credit to defendant’s denial that he was the driver of the overturned vehicle and supports my view that the State’s circumstantial evidence, i.e., that defendant was walking near an overturned vehicle that was registered in his name and that he was under the influence of alcohol, was insufficient to prove beyond a reasonable doubt that defendant was in actual physical control of a moving vehicle. Humphrey v. State, 252 Ga. 525, 526 (1) (314 SE2d 436). Compare Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283).

I am authorized to state that Judge Sognier joins in this dissent.


text:
    76982.
    GARRETT et al. v. GODBY et al.
    (375 SE2d 103)
   Pope, Judge.

On May 24, 1985, plaintiffs filed a claim against defendant James G. Godby and others for personal injury arising out of an automobile accident which occurred on June 4, 1983. The complaint alleged Godby resided at 7590 Jonesboro Road in Fairburn. The sheriff’s return of service showed Godby was served personally on May 31, 1985 at the stated address. On July 25, 1985, Godby filed an answer in which he asserted the defense of insufficient service. In answers to plaintiffs’ interrogatories, Godby explained his insufficiency of service defense by stating service was made on his father who lives across the street from Godby. Plaintiff submitted evidence that the answers to interrogatories were received from defendant’s counsel in mid-November 1985. In the following months, extensive discovery on the merits of the case was pursued by both parties. On April 4, 1986, Godby moved to dismiss the action on the ground of insufficiency of service. Service was perfected by leaving a copy of the complaint with defendant’s wife at his residence on April 11, 1986. However, defendant’s motion to dismiss was granted and plaintiffs appeal.

1. We first address plaintiffs’ third enumeration of error, in which plaintiffs contend the trial court did not apply the proper evidentiary standard in ruling on defendant’s motion. Plaintiffs make much of the fact that conflicting evidence was presented concerning defendant’s mailbox number. Defendant’s answer to interrogatories stated his address was Route 4, Box 113-A, Fair burn, Georgia. On the other hand, affidavits submitted by defendant and his father in support of the motion to dismiss state defendant’s address is Box 113 and the father’s address is Box 113-A. However, defendant’s mailbox number is not a material issue in the case.

The sheriff’s return of service indicates defendant was personally served at a stated street address. The return of service establishes prima facie evidence that personal service was made upon defendant. See Brown v. WTA/CHC, Inc., 172 Ga. App. 636 (324 SE2d 205) (1984). However, affidavits submitted by defendant dispute the information contained in the return of service. Thus, an issue of fact was created for determination by the trial court. This court will not disturb the trial court’s finding that service was insufficient where, as here, evidence was presented to support those findings. Id.

2. Plaintiffs argue that even if process papers were left with defendant’s father, the original attempt at service was not invalid.

Pursuant to OCGA § 9-11-4 (d) (7), service of process upon this individual defendant should have been made personally “or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . . .” Evidence was presented that process papers were left with defendant’s father at the father’s residence, not at the defendant’s residence. Thus, service in this case did not comply with the rule requiring service to be made upon a suitable person residing at the defendant’s residence. Nevertheless, defendant does not dispute that he received notice of the suit. Plaintiffs argue, therefore, that strict compliance with the statutory rule should not be necessary pursuant to this court’s holding in Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986).

In Brim v. Pruitt, this court found service was sufficient because process papers were left with a visitor at the defendant’s home, because defendant received actual notice of the lawsuit and because plaintiff had shown extreme diligence in attempting to trace the defendant’s whereabouts and perfect service. The “substantial compliance” exception to strict compliance with statutory rules governing service of process, as set forth in Brim, was based upon the fact that the applicable statute (OCGA § 9-11-4 (d) (7)) “recognizes that notice can be accomplished by giving the papers to someone else ... so long as it is the usual place of abode.” Id. at 325; see Adams v. Gluckman, 183 Ga. App. 666 (359 SE2d 710) (1987). The substantial compliance exception set forth in Brim is applicable only when the defendant has received actual notice after service upon a person who was present at the defendant’s place of abode, even though the person who received service was not “residing therein.” See Sanders v. Johnson, 181 Ga. App. 39 (1) (351 SE2d 216) (1986); see also Roberts v. Bienert, 183 Ga. App. 751 (1) (360 SE2d 25) (1987); Adams v. Gluckman, supra. Service upon a relative of the defendant at a place other than defendant’s residence or usual place of abode is insufficient. Freeman v. Nodvin, 181 Ga. App. 663 (353 SE2d 546) (1987).

We reject plaintiffs’ argument that defendant waived the insufficiency of service defense by postponing the filing of a motion to dismiss until after he had engaged in extensive discovery on the merits of the complaint. Defendant preserved the defense by raising it in his answer as required by OCGA § 9-11-12 (b) (5). He continued to assert the defense in answers to interrogatories. Participation in discovery after the defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service. Glass v. Byrom, 146 Ga. App. 1 (245 SE2d 345) (1978).

3. Plaintiffs, nevertheless, argue the service which was eventually perfected on April 11,1986, after the period of limitation had expired, was sufficient.

“Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff.” Bible v. Hughes, 146 Ga. App. 769, 770 (247 SE2d 584) (1978). The alleged negligent act out of which this lawsuit arose occurred on June 4, 1983. Thus, the two-year period of limitation expired on June 4, 1985. Suit was filed within the limitation period on May 24, 1985. The sheriff’s return of service in this case showed that personal service was made upon defendant at his residence on May 31, 1985. Until plaintiffs learned otherwise, they may have been justified in relying on the return of service and taking no further steps to assure service was properly perfected within the limitation period. However, the defense of insufficiency of service was raised in defendant’s answer filed on July 5, 1985. Defendant set forth the facts upon which his defense was based by answer to interrogatories which plaintiffs received by mid-November 1985. “[Plaintiffs’] receipt of [defendant’s] responsive pleading . . . should have put them on notice and inspired them, through counsel, to exercise the greatest possible diligence to insure proper and timely service.” Roberts v. Bienert, 183 Ga. App. at 752. However, plaintiffs apparently made no effort to perfect service until April 11, 1986, nine months after the defense was raised and five months after the defendant had fully informed plaintiffs of the factual basis for his defense; The facts of this case show plaintiffs were not diligent in assuring that the defendant was properly served and, therefore, the holding in Brim v. Pruitt, supra, is further distinguished. See Roberts v. Bienert, supra.

Decided October 21, 1988 —

Rehearing denied November 7, 1988

David G. Chiodo, for appellants.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, Powell, Goldstein, Frazer & Murphy, Cary Ichter, for appellees.

Where the plaintiff fails to show diligence in serving the defendant, late service will not relate back to the date the complaint was filed. See Bible v. Hughes, supra (service 56 days after filing, which was 49 days after the period of limitation expired, was insufficient); Webb v. Murphy, 142 Ga. App. 649 (236 SE2d 840) (1977) (service 54 days after the period of limitation expired was insufficient); Early v. Orr, 135 Ga. App. 887 (219 SE2d 622) (1975) (service 70 days after the period of limitation expired was insufficient). Consequently, the trial court did not err in granting defendant’s motion.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

       Compare the sequence of events in this case to those set forth in Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988). In Miller, the defendant raised the defense of insufficiency of service of process in her answer. Plaintiff relied, however, on the sheriffs return of service which recited that personal service had been perfected. The defendant made no further issue of her insufficiency of service defense until she filed a motion to dismiss. The trial court concluded that service made after the motion was filed was perfected sufficiently diligently to relate back to the date the complaint was filed and this court affirmed that decision. By contrast, the case now before us involves more than just a conflict between the “boilerplate” language of an affirmative defense and the information contained within the sheriffs return of service. Here, the defendant, in his sworn answers to interrogatories, contradicted the sheriffs return of service. Plaintiffs in the instant case thus received sworn information explaining why service was insufficient long before the motion to dismiss was filed and yet were not diligent in perfecting service.


author: McMurray, Presiding Judge.

text:
    75161.
    FORD MOTOR COMPANY et al. v. NOLAND COMPANY.
    (376 SE2d 424)
    Decided November 7, 1988.

      S. Gregory Joy, George A. Smith, for appellants.

      John Tye Ferguson, for appellee.
   McMurray, Presiding Judge.

On certiorari, the Supreme Court of Georgia in Noland Co. v. Ford Motor Co., 258 Ga. 469 (369 SE2d 960), reversed our decision in Ford Motor Co. v. Noland Co., 186 Ga. App. 541 (368 SE2d 763). Accordingly, in conformity with the mandate of the Supreme Court’s opinion, our judgment of reversal is vacated and the judgment of the trial court is affirmed.

Noland Company’s cross-appeal, ruled as moot in our previous decision has been withdrawn subsequent to the Supreme Court’s decision in 258 Ga. 469, supra.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    75347.
    CITIZENS & SOUTHERN BANK OF ALBANY et al. v. SWAIN.
    (376 SE2d 423)
    Decided November 7, 1988.

      G. Stuart Watson, Edmund A. Landau, Jr., Stephen S. Goss, for appellants.

      William H. Major III, for appellee.
   Sognier, Judge.

In Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988), the Supreme Court reversed the judgment of this court in C & S Bank of Albany v. Swain, 185 Ga. App. 881 (366 SE2d 191) (1988). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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


text:
    76536.
    JOHNCOX v. THE STATE.
    (375 SE2d 139)
   Beasley, Judge.

Johncox appeals his convictions for child molestation, OCGA § 16-6-4 (a), and aggravated child molestation, OCGA § 16-6-4 (c), for two acts committed upon his nine-year-old adopted daughter, his wife’s child. He was found guilty but mentally ill.

1. In his first enumeration, defendant argues that the two offenses, alleged to have occurred on the same day, merged. OCGA § 16- 1-7 (a). This issue, however, was not presented below and no objection was made to the sentences imposed. Thus, there is nothing for us to review. Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987) . The victim testified, however, that the defendant both “tried to put his private into mine” (count 1) and “made me put his private into my mouth” and it went into her mouth (count 2).

To the extent that defendant’s argument is addressed to venue, this was not enumerated as error and need not be considered. OCGA § 5-6-40; Meeks v. State, 178 Ga. App. 9, 14 (4) (341 SE2d 880) (1986). Moreover, evidence as to venue was sufficient. The victim stated that the two charged acts occurred at the house in Lithonia, DeKalb County. Lumpkin v. State, 182 Ga. App. 505 (1) (356 SE2d 238) (1987); Jackson v. State, 177 Ga. App. 718 (341 SE2d 274) (1986).

2. Defendant filed a plea of insanity to the charges, OCGA § 16-2-3, as well as a plea of mental incompetency to stand trial. OCGA § 17- 7-130. After initially being found incompetent, he was treated and later released for trial. OCGA § 17-7-130 (e).

Defendant reserved his objections to the court’s charge and here complains of the giving of the “presumption of sanity” charge, OCGA § 16-2-3. He argues that giving this charge in light of USCR 31.4’s requirement that defendant give notice of the defense uconstitutionally shifts the burden of proof.

USCR 31.4 provides that if a defendant intends to raise the defense of insanity or mental incompetency to stand trial, he must do so in writing and serve the prosecutor. Failure to do so precludes the defense. Chapman v. State, 258 Ga. 214, 217 (3 f) (367 SE2d 541) (1988) .

Since the enactment of the rule, both the Supreme Court and this court have reaffirmed the presumption of sanity and implicitly rejected defendant’s argument. Harris v. State, 256 Ga. 350, 354 (6) (349 SE2d 374) (1986); Thompson v. State, 178 Ga. App. 723 (1) (344 SE2d 696) (1986). The procedural requirement of pretrial notice to the State of a defense which would generally require expert opinion to rebut has no effect on the burden of proof. The State must still prove criminal intent, but the notice does not add a new burden, that the State must prove sanity without the aid of the “presumption” of sanity, in its case-in-chief. It is merely entitled to prior notice that it will have to present evidence in rebuttal to overcome defendant’s evidence of insanity.

Even when, as here, an accused has initially been found incompetent to stand trial, upon his being administratively released for trial, the rebuttable presumption of sanity applies. Newman v. State, 258 Ga. 428, 429 (1) (369 SE2d 902) (1988); Hodges v. State, 257 Ga. 818, 820 (2) (364 SE2d 275) (1988).

There was no error.

3. Defendant contends that the evidence of sanity was insufficient to support the verdict. Defendant, a Vietnam veteran, had been hospitalized in 1985 and early 1986 and diagnosed as suffering from post-traumatic stress disorder and bi-polar disorder, i.e., being a manic depressive. One of the experts testified that the manic state would have prevented defendant from realizing that what he was doing was wrong.

“Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. Brown v. State, 250 Ga. 66 (295 SE2d 727) (1982). ‘(B)ecause jurors are not bound by the opinions on sanity of either lay or expert witnesses, the jury may reject defense testimony on insanity even if uncontradicted; the presumption of sanity does not disappear upon the introduction of evidence to the contrary and may be relied upon by the jury even after the introduction of evidence of insanity.’ Id. at 71.” Murray v. State, 253 Ga. 90, 91 (317 SE2d 193) (1984); Harris, supra at 355.

The evidence here did not demand a finding that the defendant was legally insane at the time of the crime. There was evidence that defendant worked regularly driving a tractor/trailer on long trips, managed the tasks of everyday life without trouble, and, according to the victim, threatened to beat her if she told about the incidents.

4. Defendant also contends that the giving of the “presumption of truthfulness” charge, disapproved of in Noggle v. State, 256 Ga. 383, 386 (4) (349 SE2d 175) (1986), was error in that it was burden shifting.

Although the challenged charge should no longer be given, it is not unconstitutionally burden shifting. Preston v. State, 257 Ga. 42, 45 (8) (354 SE2d 135) (1987); Mincey v. State, 257 Ga. 500, 506 (9) (360 SE2d 578) (1987); Noggle, supra.

5. Two other incidents of molestation were testified to by the victim. Defendant contends error in their admission due to the State’s failure to give the notice required by USCR 31.3. The lack of an objection below precludes review. Smith v. State, 186 Ga. App. 303, 311 (5) (367 SE2d 573) (1988).

6. The evidence, both as to the charged crimes and as to defendant’s capacity to commit them, is sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 7, 1988.

William T. Hudson, Jr., for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan III, Eleni A. Pryles, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    76734.
    ATLANTA GAS LIGHT COMPANY v. REDDING.
    (375 SE2d 142)
   Beasley, Judge.

A jury awarded $75,000 to Redding in her suit for damages resulting from an automobile collision between her Blazer and a truck owned by Atlanta Gas Light Company and driven by one of its employees. The company enumerates six errors in its appeal from the judgment.

1. The first two enumerations assert the trial court erred in permitting Redding to testify 1) as to the gross sales and 2) as to the gross profits of a business incorporated in 1984, because only the plaintiff’s personal loss of income was in issue. The company made continuing objections to Redding’s testimony in this regard, but it voiced no objections when 1983 income tax returns on her sole proprietorship and 1984 and 1985 tax returns on her wholly-owned corporation were introduced. These documents contained the same information to which objection was interposed. Error, if any, in admitting the testimony was rendered harmless by the admission, without objection, of evidence of the same nature. Wilson v. Bonner, 166 Ga. App. 9, 17 (5) (303 SE2d 134) (1983).

The company urges at great length in its brief that the evidence was inadmissible because there was insufficient evidence of lost profits to sustain a jury finding for those damages. However, this is not encompassed within the framework of the enumerations of error and in addition was not raised as a ground for rejecting the evidence. Hurston v. Ga. Farm Bureau Mut. Ins. Co., 148 Ga. App. 324, 326 (2) (250 SE2d 886) (1978); Cox v. City of Lawrenceville, 168 Ga. App. 119, 120 (1) (308 SE2d 224) (1983).

2. The third enumeration is that the court erred by charging the jury that it could award Redding damages for her loss of future earnings, in the absence of any competent evidence. In its initial brief the company argued this ground only with regard to the first two enumerations of error and did not support its claim of error by specific reference to the record or transcript. In its supplemental brief, although the third ground is argued in more detail, still no accurate citation to the transcript is found. Due to this failure to comply with Rule 15 (c) (3) (i), the enumeration of error will not be considered. International Brotherhood v. Briscoe, 143 Ga. App. 417, 426 (4) (239 SE2d 38) (1977); Woodson v. Burton, 151 Ga. App. 401 (1) (259 SE2d 657) (1979).

3. The trial court instructed the jury that the correct measure for damages to the Blazer was the difference between its fair market value just before and just after the damage. Although conceding that the charge stated a correct proposition of law, the company argues that it was unsupported by any evidence.

The trial court also instructed the jury that the loss might be established by showing the reasonable costs of repairs. However, the company contends the evidence showed that it had paid Redding for the costs of repairs, but there was no evidence that such costs did not exceed the value of the vehicle before the damage. Redding has failed to point out, see Rule 15 (c) (3) (iv), and we have been unable to find, where any evidence was introduced regarding the value of the vehicle before the collision or afterwards.

An instruction is erroneous which, although correct as an abstract principle of law, is not supported by evidence. Willard v. Willard, 221 Ga. 2 (2) (142 SE2d 849) (1965). Thus, the instruction on damages which was not authorized by the evidence was reversible error. Bussey v. Thomas, 123 Ga. App. 653, 654 (2) (182 SE2d 124) (1971); Owens v. White, 103 Ga. App. 459 (1) (119 SE2d 581) (1961).

4. The fifth enumeration is that it was error for the court to refuse the company’s request for a special verdict so as to apportion the verdict between general damages, with separate items for property damage, loss of earnings and income, and medical expenses.

“The submission of a special verdict [OCGA § 9-11-49] is within the discretion of the trial court; absent an abuse of that discretion, the court’s choice will not be overturned.” News Pub. Co. v. DeBerry, 171 Ga. App. 787, 790 (3) (321 SE2d 112) (1984). The order which followed the pretrial conference provided for a general verdict form. Such order controlled unless modified to prevent manifest injustice. OCGA § 9-11-16 (b). Although the company requested special verdicts after the evidence was closed, it had never sought amendment of the pretrial order and thus was bound by it. Gilbert v. Meason, 145 Ga. App. 662 (1) (244 SE2d 601) (1978); Hawkins v. Richardson-Merrell, 147 Ga. App. 481, 484 (2) (249 SE2d 286) (1978).

5. The last enumeration is that the verdict was excessive.

The new provision concerning the trial court’s authority as to excessive damages, see Ga. L. 1987, pp. 915, 920, amending OCGA § 51-12-12, was not effective until after the trial. The law prior to its passage, which only permitted interference with a jury’s verdict where the damages were either so small or so excessive as to justify the inference of gross mistake or undue bias, controls.

Decided November 7, 1988.

Rogers, Magruder, Hoyt, Sumner & Brinson, J. Clinton Sumner, Jr., for appellant.

Gammon & Anderson, Joseph N. Anderson, for appellee.

A recent Supreme Court decision found a verdict resulted from gross error in a comparative negligence situation where plaintiff’s own negligence was considered as being at least 49 percent of the causation of her injury. McKinney & Co. v. Lawson, 257 Ga. 222, 224 (4) (357 SE2d 786) (1987). That decision is not controlling here: 1) there is no basis to ascertain that Redding’s negligence, if any, amounted to any given percent of the injury cause; 2) Lawson had 3 dissents and one concurrence in the judgment only.

We thus apply the principles which for years guided our appellate courts in ruling on questions of verdict excessiveness. To be excessive the damages awarded must “shock the moral sense to such an extent to lead to the belief that the jury were actuated by undue or improper motives or influences.” Central R. v. DeBray, 71 Ga. 406, 422 (9) (1883). The verdict must be “manifestly the result of prejudice or bias, or other corrupt motive.” Saul Klenberg Co. v. Mrozinski, 78 Ga. App. 59 (3) (50 SE2d 247) (1948). There is no basis for reversal on this ground. Davis v. Glaze, 182 Ga. App. 18, 23 (13) (354 SE 845) (1987); Jones v. Spindel, 128 Ga. App. 88, 92 (2) (196 SE2d 22) (1973).

Because of the charge error found in Division 3 of this opinion, the judgment must be reversed.

Judgment reversed.

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


text:
    77090.
    JOHNSON v. THE STATE.
    (375 SE2d 290)
   Pope, Judge.

Appellant Judson W. Johnson, Jr., was found guilty of the offense of driving his motor vehicle with excessive speed in violation of OCGA § 40-6-181. Acting pro se, appellant filed a document purporting to be an appeal of the verdict, which was treated as a motion for new trial. Appeal is taken from the denial of this motion. Held:

In ruling on the motion, the trial court made detailed findings of fact and conclusions of law concerning the trial proceedings, which were not transcribed. Officer Donald Manuel of the Clayton County Police Department testified that on the night of November 14, 1987, he and another officer were operating a stationary radar unit on Highway 138, for which they possessed the requisite permits and licenses to operate; that they were in an area approved for the operation of such radar; and that the police vehicle was visible for 500 feet to moving traffic. Upon stopping appellant’s vehicle, he was given an opportunity to see the radar unit calibrated. The speed of appellant’s vehicle, as shown by the device, was 61 miles per hour in a 45 mile-per-hour zone. The police car was parked in a driveway with its bumper 18 inches from the edge of the road. The front end of the vehicle was white and it bore a reflective decal with the word “police” on the fender.

Decided November 7, 1988.

Glaze, Fincher & Bray, C. Crandle Bray, Thomas M. Conway, for appellant.

After the State closed its case appellant testified that the road was dark and he could not see the police vehicle in which the radar detection equipment was being operated from 500 feet away, as required by OCGA § 40-14-7, offering in proof maps and photographs of the location. The trial court at that time advised appellant that the evidence concerning the speed detection device had been admitted without objection during the State’s presentation, “and that therefore he had waived that objection to the admission of that evidence.” Appellant was then found guilty and sentenced.

We agree with appellant that the State must present the necessary foundation before evidence of speed gained through the use of a speed detection device is admissible. See Wiggins v. State, 249 Ga. 302 (2) (290 SE2d 427) (1982). Consequently, we disagree with the trial court’s conclusion that appellant’s failure to object to admission of the evidence of speed gained through the use of the radar unit employed here dispensed with the necessity of such proof. “Evidence of speed gained by a state patrolman by use of a radar speed detection device is admissible only if the state introduces evidence establishing its compliance with each of the conditions of admissibility imposed upon such evidence by the General Assembly.” Id. at 306. However, inasmuch as the record here supports the conclusion that the State did present the necessary foundation, including, as found by the trial court, proof of the visibility of the police vehicle as required by OCGA § 40-14-7, appellant has presented no grounds for reversal and the judgment of the trial court denying appellant’s motion for new trial is affirmed.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

John C. Carbo III, Solicitor, Anne M. Landrum, Assistant Solicitor, for appellee.


text:
    77825.
    CONAWAY v. AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY.
    (375 SE2d 144)
   McMurray, Presiding Judge.

Plaintiff Conaway filed this action for damages against defendant American Guarantee & Liability Insurance Company. Plaintiff alleged that he was injured in an occurrence covered under a no-fault insurance policy issued by defendant to Barge & Company, Inc., and that the policy provided no-fault personal injury protection (PIP) benefits of $50,000.

Defendant answered, admitting the allegation of plaintiff’s complaint concerning PIP benefits of $50,000. Subsequently, defendant amended its answer so as to deny that the policy provided PIP benefits of $50,000 as alleged by plaintiff. In its amended answer defendant alleged the PIP benefits applicable to the plaintiff or the vehicle occupied by plaintiff were only $5,000.

Defendant moved for summary judgment contending that it had paid or tendered the $5,000 PIP limits applicable to plaintiff’s claim. Plaintiff appeals from the grant of defendant’s motion for summary judgment. Held:

In support of its motion for summary judgment defendant filed affidavits which included as exhibits the election or rejection of optional coverages, declarations’ pages and extensions of declarations’ page from the insurance policy at issue. These affidavits and supporting documents show that Barge & Company, Inc., the insured under the policy, did not purchase optional PIP coverage for the vehicle occupied by plaintiff.

Plaintiff contends that due to the absence of the remainder of the insurance policy there are questions of fact as to whether the policy provides $50,000 PIP coverage to plaintiff. “When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial.” Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 566, 567 (307 SE2d 99). The plaintiff having failed to produce evidence which would conflict with the evidence offered by defendant that no optional PIP coverage was purchased for the vehicle occupied by plaintiff, no issue of material fact is presented by the record. See also Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52); Sanders v. Colquitt County Hosp. Auth., 180 Ga. App. 58, 60 (348 SE2d 490).

Decided November 7, 1988.

James G. Jackson, for appellant.

Dan B. Wingate, for appellee.

Plaintiff also contends that issues of material fact are presented by the withdrawn admission, that the policy provided $50,000 PIP coverage, contained in defendant’s original answer. “Ordinarily, admissions against interest contained in the pleadings are admissible as evidence. See Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980). ‘ “Admissions of fact in the pleadings can always be taken advantage of by the opposite party, and can be used as evidence even though the pleadings should be stricken or withdrawn (cits.) . . . This rule, however, has application to admissions of fact, and is not applicable where the admission is merely the opinion on the part of the party making it. . .” Clift & Goodrich v. Mincey Mfg. Co., 41 Ga. App. 38 (1) (152 SE 136) (1929). “An admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or which assert mere opinions of the pleader are not admissions in judicio.” Green, Ga. Law of Evidence (2d ed.), § 238, p. 394.’ Ga. Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 876 (4) (305 SE2d 611) (1983).” Aiken v. Dept. of Transp., 171 Ga. App. 154, 155 (319 SE2d 58). The withdrawn admission upon which plaintiff relies is merely an opinion or conclusion and thus fails to create an issue of material fact. No genuine issue of material fact appears in the record, therefore, the state court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Pope and Benham, JJ., concur.