author: Sognier, Judge.

text:
    75560.
    McKELVEY v. THE STATE.
    (366 SE2d 231)
   Sognier, Judge.

Appellant was convicted of possession of cocaine and possession of marijuana, in violation of the Georgia Controlled Substances Act, and she appeals on the general grounds.

The evidence disclosed that Detective Lorenzo Dunlap of the Columbus Police Department obtained a search warrant for appellant’s apartment based on information from a confidential informant that there was a quantity of marijuana on the premises. When the warrant was executed Detective Dunlap and a GBI agent went to the front door, and Lieutenant Taylor and two other officers went to the rear door. Detective Dunlap knocked and announced that the police had a warrant to search the apartment; receiving no answer, the GBI agent opened the unlocked door and he and Detective Dunlap entered. After securing the premises and the persons present, Detective Dunlap went to a bedroom with the door closed to commence his search. Receiving no response to his knocks, he forced open the unlocked door and found Charlotte Russell, a co-defendant and a visitor in appellant’s apartment, behind the door. (Russell had apparently been holding the door closed to prevent entry.) Detective Dunlap found a brown paper bag containing six individual bags of marijuana and a mirror with a white powder residue on the bed. Lieutenant Taylor and the other two officers entered the rear door immediately after Detective Dunlap had entered the front door, and found appellant and Janice Sutton, a visitor, in the kitchen. One of the officers with Lieutenant Taylor went immediately to the bathroom and found Lucious Williams, another visitor, injecting himself with cocaine. Lieutenant Taylor had remained in the kitchen with Sutton, having ordered appellant into the living room. After a few minutes Lieutenant Taylor noticed a bag of marijuana on or under the kitchen table (the record is unclear on this point), which was extremely cluttered. Lieutenant Taylor ordered Sutton to empty the contents of her pockets onto the table but found no contraband, and Sutton was subsequently released.

Williams testified as a State witness that Russell had called him over to appellant’s apartment; when he arrived, Russell gave Williams the cocaine which he was injecting when the police found him in the bathroom. Russell testified that when the police arrived she was scared because she was on probation, so she ran into the bedroom to hide. She denied giving cocaine to Williams, and denied any knowledge of the cocaine and marijuana found on the bed. Appellant testified that she did not know any marijuana or cocaine was in her apartment. Both appellant and her mother testified that Russell, who was visiting in the apartment, had departed to go shopping. When she returned about thirty minutes later, she was carrying a brown paper bag; Russell then went in the bedroom and closed the door. Appellant also testified that shortly after Russell returned from shopping Williams came over, asked to talk to Russell, and went in the bedroom. He came out of the bedroom very shortly and asked to use the bathroom. Appellant also testified that Sutton must have thrown the bag of marijuana found in the kitchen onto the table.

Decided February 17, 1988.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee.

The primary issue in this case was the credibility of witnesses, which was a question for the jury. Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634) (1987). We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), insofar as the offense of possession of marijuana is concerned, since marijuana was found on or under the kitchen table, and appellant was in the kitchen when the police arrived. However, we do not find the evidence sufficient to establish appellant’s guilt beyond a reasonable doubt of the offense of possession of cocaine. Other than the fact that the apartment belonged to appellant, there is no evidence whatsoever connecting her with the cocaine residue found on a mirror in the bedroom where Russell was hiding, and where she had been for ten or fifteen minutes prior to arrival of the police. Such evidence indicated, if anything, that Russell had been using cocaine in the bedroom, since there was no evidence that appellant was ever in the bedroom where Russell was found, or that appellant used the bedroom at all. Further, Williams’ testimony that Russell had called him over to the apartment after she returned from shopping and had given Williams the cocaine he was injecting certainly supports an inference that the cocaine belonged to Russell. Such an inference is buttressed by the fact that the search warrant, based on information from an informant, was only for marijuana, indicating that the informant was unaware of any cocaine in appellant’s apartment. Under such circumstances we cannot say the evidence meets the standard of proof required by Jackson v. Virginia, supra. Accordingly, appellant’s conviction of possession of cocaine must be reversed.

Judgment affirmed as to possession of marijuana.

Judgment reversed as to possession of cocaine. McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    75712.
    CARROLL v. THE STATE.
    (366 SE2d 232)
   Banke, Presiding Judge.

Carroll appeals from the denial of his motion for new trial following his conviction of burglary.

The victim, Elbert Sweeten, operated a used car business out of a mobile home which also served as his living quarters. For a short time prior to the burglary, the appellant had been employed by Sweeten as a mechanic. During that period, the appellant had resided, with Sweeten’s permission, in a van which was parked inside a garage located on the premises. Since there were no bathroom facilities in the van, Sweeten had permitted the appellant access to the bathroom in his mobile home. Also, Sweeten would invite the appellant into the mobile home on occasion to drink beer with him after working hours.

Sweeten testified that on the evening the offense occurred the appellant had been in the trailer drinking beer at his invitation but that when the appellant “had done drunk too much,” he told him to leave, advising him to go to the van and sleep. The appellant left, whereupon Sweeten locked the mobile home and departed the premises for about an hour. When he returned, he heard a noise emanating from the trailer and, through a window, observed the appellant sitting in a chair near the desk in the room that served as the office. Sweeten entered the trailer, ordered the appellant to leave permanently, and looked around to see if anything had been taken. He observed that four blank checks had been removed from a checkbook in his desk drawer and that a cold, partially consumed bottle of beer had been left on the floor near the desk. Believing that the noise he had heard had been the slamming of the desk drawer, Sweeten reported the incident to the police, who apprehended the appellant shortly thereafter. The checks were never located. Held:

1. The appellant submits that the trial court committed reversible error by allowing Sweeten to testify as follows: “I opened the [drawer] where I keep my checkbooks, and he [the appellant] had took four checks.” This testimony was allowed over the appellant’s objection that it was conclusory and was without a proper foundation.

“Answers constituting mere conclusions, surmise or conjecture are properly excluded from evidence. [Cit.]” Marshall v. State, 154 Ga. App. 327, 328 (268 SE2d 383) (1980). Although expert opinion testimony on an ultimate issue may be permitted where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves, see Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981), “[o]rdinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury. [Cit.]” Fordham v. State, 254 Ga. 59 (325 SE2d 755) (1985). In the present case, the objected to testimony should not have been allowed as it went to the ultimate issue for the jury’s consideration, i.e., whether the appellant had committed a theft while inside Sweeten’s trailer. However, we conclude that the error must be considered harmless, since in the context of the other evidence “it is ‘highly probable that the error did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). The evidence revealed that the appellant had re-entered the trailer without authority through a rear window and that, while there, he had consumed a beer, which he later admitted was “wrong.” Thus, all the elements necessary to complete the offense of burglary were established virtually without dispute.

Decided February 17, 1988.

Sara F. Miller, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

2. We reject the appellant’s assertion that the state failed to prove that any property of value was contained within the trailer and thus failed to establish any basis for an inference that the appellant had entered it with the intent to commit a theft therein. There was photographic evidence showing that the trailer contained a television set, refrigerator, and numerous items of household furniture. In Cannon v. State, 113 Ga. App. 701, 702 (149 SE2d 418) (1966), construing a predecessor to our current burglary statute, we held that “while such evidence would be insufficient to prove an exact value of the personal property shown therein, yet it was sufficient to authorize a finding that such personalty had some value.” It follows that there was at least some evidentiary basis for an inference that the appellant had entered the trailer with the intent to commit a theft. See Bradshaw v. State, 172 Ga. App. 330 (2) (323 SE2d 253) (1984).

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75766.
    POWERS et al. v. JONES et al.
    (366 SE2d 234)
   Birdsong, Chief Judge.

This is a suit by Terry and Jean Powers against Wendell and Helen Jones, for damages incurred when water flooded the Powerses’ condominium from the Joneses’ condominium above. The plaintiff-appellants sought more than $20,200 in damages. The jury returned a verdict for $3,000, but the trial court granted to defendants a $10,000 set-off. The Powerses appeal, complaining of the set-off and also that the $3,000 verdict was grossly inadequate and biased, for the undisputed and uncontroverted evidence demanded a verdict of at least $9,000. Held:

1. The set-off evidently was granted on the basis suggested at length by the appellees: that the plaintiff-appellants received insurance proceeds of $10,000 for property damage from the condominium association’s insurer under the association’s blanket property damage policy. That policy was paid for by the condominium association through dues paid by the condominium owners. All of the owners own the common elements, rights and obligations of the property. The cause of action for any damage belongs to the condominium association, not any particular owner. To allow the owners to collect this would subject the appellees (also owners) to a double recovery. Further, say the appellees, “[t]he damage that would be attributable to the ownership of the condominium association is so closely intertwined with the damage that is allegedly claimed to the area owned by the condominium association that the two cannot be separated. Likewise, to the extent that any of the damage was the result of acts attributable exclusively to the condominium association, the condominium association would be a joint tortfeasor and any amount paid by them would be credited to appellees. As the court noted in Mitchell v. Gilson, 233 Ga. 453 [(211 SE2d 744)], where the damage is such that it cannot be rationally apportioned, then the actors are considered joint tortfeasors, jointly and severally liable for the full amount of plaintiff’s damages. In the instant action, either through the acts of the condominium association or through the unapportionable nature of the damages, the condominium association would be a joint tortfeasor, and any payment made by it must be credited to any amounts owed by appellees.”

The appellants conclude: “It is clear that appellees would be entitled to a set-off or credit of those amounts and that that was properly awarded by the trial court.”

As we view this verbiage, it is without merit. The insurance was paid for by the association, which is a corporation. See OCGA §§ 44-3-70 and 44-3-71 (2) et seq. It was not paid for by an individual owner but was a common expense made on behalf of the association. See OCGA § 44-3-71 (5). The insurance recovery of the plaintiffs-Powers for damages to their unit and their personal property (see § 44-3-96) was not based on the liability of another owner, but on the plaintiffs’ own right to collect for property damage as an insured under the association’s duty to restore the damaged property of that insured (see § 44-3-94). And the dues which the appellee-defendants paid to the association, if they funded the blanket property damages insurance, were paid by the appellees for their own property damage rights for their own condominium. They were not paid by the appellees for the property damage coverage of another owner’s condominium and certainly not for their tort liability to another owner.

It is suggested by the appellees that the association is a joint tortfeasor whose payment might be credited to the other joint tortfeasors. But there is no indication the jury found the association a joint tortfeasor, and in any case the payment of the association’s insurer was not a discharge of tort liability and did not dissolve or absolve the tort liability of the tortfeasor defendants-appellees. The payment was the plaintiffs’ entitlement under their own coverage for which they paid dues to the association, and under OCGA § 44-3-94. Likewise the liability of the defendant-appellees is not the liability of a condominium “unit” or owner insured under the policy, but is the liability of one person or individual to another for the tort. If the jury finds the person liable in tort, as this jury found these appellees, their liability is not diminished by property damage paid by the association on behalf of, and to, the plaintiff-member under its blanket policy. Under the collateral source rule, the tortfeasor-appellees cannot diminish the amount of their liability by pleading payments made to the plaintiff-appellants under the terms of a contract between the plaintiff and a third party (the association) who was not a joint tortfeasor. Insurance Co. v. Fowler, 148 Ga. App. 509, 511 (251 SE2d 594). Even the new collateral source rule, which goes so far as to make collateral source recoveries admissible generally does not authorize an automatic reduction or set-off. See OCGA § 51-12-1 (Ga. L. 1987, p. 915, § 3). The trial court erred in granting these defendants a set-off to their tort liability of an amount paid by the association’s insurer for property damage.

Decided February 17, 1988.

Charles L. Jurjevich, for appellants.

2. The jury, having concluded the defendant appellees were liable in tort for damages, was not thus obliged to grant the appellants every item of damage claimed. Evidently, the jury found unjustified the entire claims of more than $20,500 for damages, repairs and outside lodging while the condominium was being repaired; or found that not all of these damages were attributable to the appellees. It is not correct to say the appellant’s evidence of damages was “undisputed,” (and therefore demanded a certain verdict; Tallent v. McKelvey, 105 Ga. App. 660, 662 (125 SE2d 65)) for it was subject to the test of credibility and reasonability whether disputed or not.

The appellants contend the jury verdict was obviously infected by the jury’s knowledge of the $10,000 collateral source insurance payment. However, appellants fail to point out how the jury might have learned of the payment.

The judgment is reversed for the reasons given in Division 1, and the case remanded with the trial court directed to strike the set-off and reinstate the verdict of $3,000 damages.

Judgment reversed.

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

John E. Hall, Jr., for appellees.


author: Sognier, Judge. Beasley, Judge,

text:
    75128.
    MESSMORE et al. v. ROTH.
    (366 SE2d 318)
   Sognier, Judge.

Lynette Roth brought suit against Jasper and Janet Messmore seeking recovery of actual and punitive damages for the Messmores’ alleged conversion of household goods left by Roth in the Messmore home. The Messmores answered and counterclaimed for sums owed by Roth under a lease agreement, as well as for other sums. The case was tried before a jury, which returned a verdict in favor of Roth on the main claim in the amount of $11,667, and in favor of the Mess-mores on their counterclaim in the amount of $500. Judgment was entered on the verdict, and following denial of their motions for judgment n.o.v. or, alternatively, for a new trial, the Messmores appeal.

The record reveals that appellee, who had known appellant Janet Messmore in Wisconsin, arranged with appellants upon moving Lo +he Atlanta area to share their home and pay them a fixed sum for rent and a contribution to other household expenses. Appellee moved her furniture and other personal belongings into the house, and subsequently purchased other household items. These were left by appellee in the house when, after a return visit to Wisconsin in the company of appellant Janet Messmore, appellee decided not to return to Atlanta. Although appellee eventually reclaimed a portion of her belongings, she claimed some of the personal property was either damaged or retained by appellants, despite appellee’s attempts at retrieval.

1. Appellants contend the trial court erred by permitting appellee to prove the value of her personal property solely through evidence of purchase price. An opinion of value based on purchase price alone is insufficient and has no probative value. See, e.g., Adams Refrigerated Express v. Ingol, 176 Ga. App. 457, 458 (1) (336 SE2d 289) (1985). However, in the case sub judice appellee also testified to the date of purchase new and the condition of the property immediately prior to its loss or destruction. This provided a sufficient basis from which the jury could determine the value of the property. Braner v. Southern Trust Ins. Co., 255 Ga. 117, 120-121 (3) (335 SE2d 547) (1985). Accordingly, the trial court did not err by permitting appellee to prove the value of her property in this manner.

2. Appellants maintain that because they asserted several claims against appellee, their retention of appellee’s property was rightful under a common law possessory lien and thus the trial court erred both by failing to grant their motion for a directed verdict on this issue, and by charging the jury concerning tortious deprivation of property.

Historically, common law liens were either particular or general. Particular liens arose in certain trades and businesses which were compelled to accept employment from the general public and thus ran the risk of not being paid for their services. Thus innkeepers and common carriers, for instance, if not paid for their services, could retain their customers’ belongings. Particular liens attached only to the property involved in the transaction. General liens were created only by express agreement or by custom and usage in certain businesses and professions, such as attorneys, bankers, factors, and insurance brokers. The general lien extended not only to the property involved in the transaction, but to all property of the client or customer, for the satisfaction of an account.

Contrary to appellants’ argument, Kollock v. Jackson, 5 Ga. 153 (1848), which dealt with a factor’s lien on cotton, and W. C. Caye & Co. v. Milledgeville Banking Co., 91 Ga. App. 664 (86 SE2d 717) (1955), concerning a bank’s right to set-off monies owed it by a depositor before paying out the depositor’s funds in a garnishment action, are distinguishable because both Kollock and Caye involved factual situations in which general liens had been well recognized at common law. We have found no case in which a common law lien attached in a situation such as that created by the facts here. Even assuming a portion of appellants’ claim against appellee was for rent, a landlord’s right to distrain for rent must be exercised through the use of legal process rather than by simple retention of the tenant’s household goods. See OCGA § 44-7-70 et seq. We thus conclude that appellants had no common law lien giving them a right to retain appellee’s property. Since appellants had no common law possessory lien, the trial court did not err by failing to grant appellants’ motion for a directed verdict on this issue or by charging the jury regarding tortious deprivation of property.

3. Having held in Division 2 that appellants had no common law possessory lien, we find no merit in appellants’ enumeration alleging error in the trial court’s denial of their motion for a directed verdict as to the issue of punitive damages and find the trial court properly submitted to the jury the issue of whether appellants’ retention of appellee’s property was such as to warrant the award of additional damages.

4. Appellants assert the trial court erred by excluding testimony from appellee’s former employer, which was offered by appellants to impeach appellee through evidence of general bad character. “[A]ny witness, other than an accused, may be discredited by evidence of bad character (OCGA § 24-9-84 ...)... [Cit.]” Beasley v. State, 168 Ga. App. 255, 256 (308 SE2d 560) (1983). This applies in civil, as well as in criminal cases. See, e.g., Ballenger Corp. v. Dresco &c. Contrac tors, 156 Ga. App. 425, 437-438 (4) (274 SE2d 786) (1980). Contrary to appellee’s argument, Housing Auth. of Atlanta v. Green, 169 Ga. App. 211 (312 SE2d 196) (1983), does not dictate a different result. That case stated the rule in Georgia with regard to the admissibility of evidence of general good character, which is that the same is not admissible in civil cases except “where a party’s character is a material issue under the pleadings in the case, [cit.], or where a party is accused of threatening to commit a crime. [Cit.]” Id. at 212. This is a restatement of the principle embodied in OCGA § 24-2-2, that “ [t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”

However, the Georgia Code also provides that “[a] witness may be impeached by evidence as to his general bad character.” OCGA § 24-9-84. “The impeaching witness should first be questioned as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if from that character he would believe him on his oath.” OCGA § 24-9-84. It is permissible to impeach through testimony of bad character by one who is familiar with the witness’ reputation in the workplace. See Bennett v. George, 105 Ga. App. 527, 533-534 (12) (125 SE2d 122) (1962).

In the case at bar, the proper foundation was laid by appellants’ counsel for the introduction of such impeaching testimony from Gloria Lester, the proprietor of a beauty shop and appellee’s former employer. Lester was asked whether she was acquainted with appellee’s general character and reputation in the community; she replied that she was, through her hairdressers, and that appellee’s reputation was “not good.” Appellee objected, and since the proper foundation had been laid, the trial court erroneously refused to allow appellants’ counsel to continue questioning Lester along this line, and later instructed the jury to disregard her testimony. The credibility of appellee was important to the jury’s resolution of conflicts in the testimony, both as to the main claim and the counterclaim, and we cannot say that appellants were not harmed by the trial court’s improper exclusion of this testimony. We must, therefore, reverse the judgment, and remand this case for a new trial.

5. Other errors alleged in appellants’ remaining enumerations of error, if harmful, are unlikely to recur upon retrial.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

In Division 1 the majority rules that the evidence was sufficient for the jury to measure damages, in that purchase price when complemented by age of the personal property and its condition when lost to plaintiff would provide an adequate basis for a determination of its fair market value. With that I agree. Hoard v. Wiley, 113 Ga. App. 328, 334 (147 SE2d 782) (1966); Cunningham v. Hodges, 150 Ga. App. 827 (1) (258 SE2d 631) (1979), and cases cited. “Ordinarily the measure of damages where property has been converted is its market value at the time of the conversion.” Park v. Swann, 20 Ga. App. 39 (3) (92 SE 398) (1917); Cooper v. Citizens Bank of Gainesville, 129 Ga. App. 261, 262 (3) (199 SE2d 369) (1973).

Appellants complain not only of the type of evidence, however, but also of the jury charge on this point, as they did repeatedly at trial. That is not ruled on here, although it is enumerated as error, and a ruling is called for as the case is reversed for retrial. OCGA § 5-6-34 (c).

The court gave the charge on measure of damages requested by plaintiff: “in dealing with common personal property, and that is things like clothing, household goods, et cetera, a jury shall be able to assess the actual cash value of the property when the witness or homeowner testifies to the purchase price or replacement cost of the property and its purchase date or date of acquisition.”

This was the only charge given on the subject of measurement of these damages. The charge recites the rule of evidence established in Braner v. Southern Trust Ins. Co., 255 Ga. 117, 121 (3) (335 SE2d 547) (1985) relating to proof of loss under an insurance police covering actual cash value, where the insurer complained that the insured proved only replacement cost. The Supreme Court fashioned a rule for homeowner fire loss cases involving destruction of personal property, departing from the general rule as to what is required as proof of damages to such personal property. It explained the variation as necessitated by practicalities. The rule, however, does not establish the measure of damages, only the type of proof acceptable. The contract established the measure.

This is not an insurance case, where the insurer defendant can (as done in Braner) use a depreciation formula to reduce the evidence of replacement cost to actual cash value, the ultimate measurement question in such cases. It is not even a contract case, but one where the plaintiff alleged the tort of conversion. Nor is it a case involving total destruction of the property and proof of its value. Finally, it is not one involving a long parade of small personal items the individual condition of which at time of loss would take an inordinate amount of testimony peripheral to the main issue, that of establishing loss. These are the practicalities which prompted the Supreme Court’s relaxation of the proof rule in a circumscribed class of cases.

The charge instructed the jury to set the damage at “actual cash value,” whereas the true measure is the fair market value. See Jones v. Spindel, 128 Ga. App. 88, 93 (2) (a) (196 SE2d 22) (1973); 122 Ga. App. 390, 393 (6) (177 SE2d 187) (1970). See generally Cobb & Eldridge, Ga. Law of Damages (2d ed.), §§ 36-30; 31A-1; 31A-2.

Decided February 2, 1988

Rehearing denied February 18, 1988

C. James Jessee, Jr., for appellants.

Michael E. McLaughlin, for appellee.

Secondly, it does not instruct when the measurement is to be applied, i.e., at the time of conversion because plaintiff did not seek, nor was there any evidence of, a higher value between conversion and trial, which would have allowed the latter. OCGA § 44-12-152.

Nor is there any basis for assessing depreciation in this case via testimony in lieu of condition of the property, as in the insurance case, or any instruction concerning the necessity of considering the condition of the property at purchase and at conversion.

The proper charge would be the general rule as referred to in Braner. It, rather than the special Braner evidentiary rule, should be given on retrial so that the jury may determine the recoverable damages as provided by law.


text:
    75326.
    NATIONAL DATA CORPORATION v. HOOPER.
    (366 SE2d 189)
   Sognier, Judge.

Michael Hooper brought suit against his employer, National Data Corporation, to recover damages for medical problems arising from the use of a telephone headset provided by the employer and used by Hooper in the course of his employment. National Data moved to dismiss the complaint on the basis that Hooper had previously filed a workers’ compensation claim arising out of the same problems, and had entered into an agreement settling that claim, which agreement had been approved by the State Workers’ Compensation Board. The trial court denied National Data’s motion but certified its ruling for immediate review, and we granted this interlocutory appeal.

Appellant contends that both the workers’ compensation law and the contractual settlement document provide for the exclusivity of the workers’ compensation remedy, and prevent the assertion of appellee’s claims here. We agree and reverse. It is axiomatic that “[t]he rights and the remedies granted to an employee by [OCGA Chapter 34-9] shall exclude all other rights and remedies of such employee.” OCGA § 34-9-11. In addition, paragraph 8 of the settlement agreement provides that the agreement “is entered upon under the provisions of the Georgia Workers’ Compensation Act, and is intended to constitute a complete and final disposition of all claims on account of the incident, injury or injuries of December 10, 1984, upon approval of Georgia State Board of Workers’ Compensation,” which approval was subsequently obtained.

We find no merit in appellee’s claim that while accepting compensation for his injuries which were idemnifiable under the act, he reserved the right to pursue a common law remedy against the employer for other conditions arising out of the same injury, such as tinnitus, tensor-tympany spasms, and pain and suffering, because these are not compensable under the act. That an injury is not compensable under the act does not necessarily mean it is not within the purview of the act. Thus, the fact that the act expressly provides that “there shall be no award for tinnitus,” OCGA § 34-9-264 (b) (5), for example, does not mean that an employee may accept whatever benefits are available under the act, and then file suit against his employer to recover damages for tinnitus. “In exchange for the right to recover scheduled compensation without proof of negligence on the part of the employer in those cases in which a right of recovery is granted, the employee forgoes other rights and remedies which he might otherwise have had, but if he accepts the terms of the Act he as well as the employer is limited to those things for which the Act makes provision.” Nowell v. Stone Mountain Scenic R., 150 Ga. App. 325 (257 SE2d 344) (1979).

We are similarly unpersuaded by appellee’s argument, based on the pre-amendment provisions of the act applicable to this case, that some of his conditions result from occupational diseases which were not listed in former OCGA § 34-9-280 and therefore, under the provisions of former OCGA § 34-9-289, he is entitled to pursue his common law remedy against the employer. First, appellee bases his argument on the final sentence of former § 34-9-289, which provided that “[a]n employee who suffers disability or death from any occupational disease not listed in Code Section 34-9-280 shall not be deprived of any common law rights under existing laws.” However, “the quoted language is held over, unchanged from the time when all of the occupational diseases then recognized were identified by name, i.e., ‘listed.’ ” Synalloy Corp. v. Newton, 254 Ga. 174, 175-6 (1) (326 SE2d 470) (1985). It is anomalous, in that OCGA § 34-9-280 contains a definition of the term “occupational disease,” and it would therefore be impossible for an employee to suffer from an occupational disease not encompassed by OCGA § 34-9-280. We note that this anomaly has been corrected by the legislature in its 1987 amendment to OCGA § 34-9-289, which deleted the last sentence.

Second, former OCGA § 34-9-280 (3) defines “occupational diseases” as “those diseases listed in this paragraph, but only if any such listed disease is due to causes and conditions which are characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease (excluding all ordinary diseases of life to which the general public is exposed).” This language “cannot be held to refer to the particular ailment of a named employee. ... To the contrary, it is the ‘character’ of the disease which is controlling.” Synalloy Corp., supra at 176 (1). The record in the case sub judice reveals that the diseases suffered by appellee were ear infections, whose “character” is that they are not occupational diseases, but ordinary diseases of life to which the general public is exposed.

Decided February 4, 1988

Rehearing denied February 18, 1988

John C. Grabbe IV, for appellant.

We note finally that appellee’s reliance on Berkeley Granite Corp. v. Covington, 183 Ga. 801 (190 SE 8) (1937), is misplaced. In that case, the Supreme Court allowed the employee to pursue a common law remedy for silicosis. However, the workers’ compensation statute at the time “excluded from workers’ compensation coverage all diseases except those resulting from an accident. [Cit.] Accidents were covered, but diseases were not. The Code made no distinction between ordinary diseases and occupational diseases. All were excluded. There was a provision limiting an employee suffering from an ‘accident’ to the rights afforded under workers’ compensation law. [Cit.] Those affected by diseases were left to whatever remedies might be available elsewhere.” Synalloy Corp., supra at 179, Gregory, J., dissenting. Such is no longer the case. Our statute provides coverage for both accident and disease and thus Berkeley Granite may no longer be relied on.

“When ruling on a motion to dismiss without a jury, the trial judge performs the function of determining the factual issue. [Cit.] [Her] determination as a trier of fact will be reversed only where the evidence demands a contrary finding.” Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288 (322 SE2d 900) (1984). In the case sub judice, both the law and the settlement agreement freely entered into by appellee provide that his exclusive remedy is under the workers’ compensation law. The instant action is therefore barred, and the evidence demands a finding that the trial court erred by denying appellant’s motion to dismiss.

Judgment reversed.

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

Joab L. Kunin, Harris R. Anthony, for appellee.


text:
    75657.
    SMITH v. LOCKHEED-GEORGIA COMPANY et al.
    (366 SE2d 178)
   Banke, Presiding Judge.

The appellant injured his knee in 1982 while employed by Lockheed-Georgia Company, sustaining a 30-35 percent permanent partial impairment of the right lower extremity. He was paid workers’ compensation benefits for temporary total disability until July of 1986, when, on motion by the employer/insurer, a change-in-condition hearing was held. At that hearing, evidence was introduced showing that the appellant had, since April of 1985, operated a ceramics shop from which he had received revenues but no actual net income. Based on this evidence, the administrative law judge ruled that, retroactive to the inception of the ceramics business, the appellant was entitled to receive workers’ compensation benefits on the basis of a temporary partial disability (see OCGA § 34-9-262, as it existed prior to its amendment by Ga. L. 1985, p. 727, § 9, effective July 1, 1985), rather than on the basis of a temporary total disability. See OCGA § 34-9-261. Additionally, the administrative law judge made the following observations: “[T]here has been very little attempt by employer/insurer to rehabilitate claimant so that he could return to the work force with employer at its plant in Marietta. Claimant has in essence started his own rehabilitation effort with his ceramics shop operation. This could prove to be a great opportunity for employer/insurer . . . to . . . return claimant to his full pre-injury earning capacity.”

Upon de novo consideration, the findings and conclusions of the administrative law judge were adopted by the full board. However, the superior court reversed the award on appeal, ruling that because the appellant’s ceramic business had produced “gross revenues greater than his average weekly wage at the time of the subject employment injury,” he had undergone a change in condition for the better from temporary total disability to no disability. We granted the appellant’s application for a discretionary appeal to this court to consider whether the superior court properly relied on Little Suwannee Lumber Co. v. Fitzgerald, 172 Ga. App. 144, 145 (322 SE2d 347) (1984), in reversing the board’s award. Held:

In the Little Suwannee Lumber Co. case, we upheld an award of disability benefits to an independent contractor who was admittedly covered by the Act, calculated on the basis of the full-time weekly wage which he had been earning prior to his injury, without any deduction for his “production costs.” In reaching this conclusion, we observed that “[t]he Georgia Workers’ Compensation Act is a humanitarian measure meant to provide relief to the injured employee, and the Act should be liberally interpreted by the courts to carry out that purpose. [Cit.]” See also Atha v. Jackson Atlanta, Inc., 159 Ga. App. 433, 436 (283 SE2d 654) (1981).

Decided February 3, 1988

Rehearing denied February 18, 1988.

Frederick M. Scherma, for appellant.

Andrew J. Hamilton, Gwendolyn R. Tyre, for appellees.

In the present case, we are not concerned with the manner of calculating the claimant’s weekly wages at the time of the injury but with whether he has undergone a change in economic condition for the better since the injury. Clearly, to consider merely his gross revenues from his business without deducting his offsetting overhead expenses would be to penalize him for taking steps to overcome his disability even though these steps have not yet resulted in any economic gain to him. We hold that, under the present facts, the board acted properly in calculating the appellant’s entitlement to further disability benefits on the basis of his net rather than his gross business earnings. The judgment of the superior court is accordingly reversed.

Judgment reversed.

Carley and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    75844.
    MITCHELL v. SOUTHERN GENERAL INSURANCE COMPANY.
    (366 SE2d 179)
   Deen, Presiding Judge.

Leroy Mitchell filed suit against Kenneth Daniels in the State Court of DeKalb County, and Southern General Insurance Company was served as Daniels’ alleged liability carrier. Because there was a dispute as to whether Mitchell was the driver of the automobile at the time of the accident, and also regarding certain exclusions contained in the policy, Southern General filed for a declaratory judgment. Mitchell filed a motion to dismiss the action or, in the alternative, for consolidation of the declaratory judgment action with the liability action. Appellant filed an answer. The insurance company then filed a motion to transfer the declaratory judgment action from the state court to the Superior Court of DeKalb County. No response to this motion was received by the insurance company, and the motion to transfer was granted. This court granted an interlocutory appeal to determine if the court below erred in granting the motion to transfer.

1. EVI Equip. v. Northern Ins. Co. of N. Y., 178 Ga. App. 197 (342 SE2d 380) (1986), correctly holds that under OCGA § 15-7-4 (2), the superior courts have exclusive jurisdiction to hear and determine a declaratory judgment action. We must, however, disagree that when such an action is filed in the state court, it must be dismissed for lack of subject matter jurisdiction. Under section T-4 of the Uniform Transfer Rules, 251 Ga. 893 (312 SE2d XXVII) (1984), “when a party makes a motion to dismiss, or any other motion or defense, on the basis that the court in which the case is pending lacks jurisdiction or venue, or both [s]uch motion shall be treated as a motion to transfer pursuant to these rules. A motion to transfer shall be made only in the court in which the case is pending. These rules also become operative when a court on its own motion, after a hearing thereon, determines that it lacks subject matter jurisdiction.” (Emphasis supplied.) Accord Southern R. Co. v. Lawson, 174 Ga. App. 101 (329 SE2d 288) (1985); Shannon v. Allen Automatic Transmission, 172 Ga. App. 88 (322 SE2d 99) (1984); Long v. Bruner, 171 Ga. App. 124 (318 SE2d 818) (1984); Empire Forest Prods. v. Gillis, 184 Ga. App. 542 (362 SE2d 77) (1987). To the extent that EVI Equip. v. Northern Ins. Co. v. N. Y., supra, conflicts with these cases and the Uniform Transfer Rules, it is overruled.

Decided February 3, 1988

Rehearing denied February 18, 1988

George P. Graves, for appellant.

Robert M. Darroch, Michael J. Goldman, for appellee.

2. In view of our holding in Division 1 above, appellant’s motion for consolidation of the declaratory judgment action with the liability action was properly denied by the trial court, as that court did not have jurisdiction over the declaratory judgment action.

3. Appellant’s prayer for attorney fees is denied.

Judgment affirmed.

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


text:
    75885, 75949.
    DEPARTMENT OF TRANSPORTATION v. SAMUELS; and vice versa.
    (366 SE2d 181)
   Banke, Presiding Judge.

Samuels filed an inverse condemnation action against the Department of Transportation (DOT) on June 13,1986, alleging that the DOT had, by declaration of taking, previously condemned certain land belonging to him without depositing into the registry of the court a sum of money sufficient to afford him just and adequate compensation for the taking. The DOT moved to dismiss the complaint for failure to state a claim. Following a hearing, the trial court determined that an inverse condemnation action could not be maintained under the circumstances but apparently nevertheless left the case pending. The case is currently before us pursuant to our grant of the DOT’s application for an interlocutory appeal. Samuels has filed a cross-appeal, enumerating as error those portions of the trial court’s order which were favorable to the DOT.

The procedural posture of the case is somewhat muddled by the fact that most of the issues addressed in the trial court’s order concern the separate condemnation proceeding referred to in the complaint, which was filed by the DOT in November of 1980. From the briefs of the parties and from the trial court’s order in the present case, it is apparent that Samuels filed a timely appeal in that proceeding on the issue of value; however, that appeal was treated by the trial court in the present case as having been dismissed by operation of law pursuant to the so-called “five-year rule.” See OCGA §§ 9-2-60 (b); 9-11-41 (e). In addition to filing the present inverse condemnation action, Samuels also filed a “renewed notice of appeal” in the original condemnation action pursuant to the authority of OCGA § 9-2-61 (a), which provides, in pertinent part, as follows: “If a plaintiff discontinues or dismisses his case and recommences the same within six months, the renewed case shall stand upon the same footing, as to limitation, with the original case.”

As previously indicated, the trial court ruled that the present inverse condemnation action could not be maintained but nevertheless declined the DOT’s invitation to dismiss it, evidently concluding that Samuels was entitled to litigate the issue of just and adequate compensation in the present action pursuant to his “renewed notice of appeal,” even though the renewed notice of appeal pertained to the separate condemnation proceeding previously initiated by the DOT. Held:

1. We agree with the trial court that an inverse condemnation action cannot be maintained under the circumstances of this case. It is well-settled that once a condemnation proceeding has been initiated by a condemning authority, that proceeding establishes the exclusive avenue for litigating the issues of just and adequate compensation. See Pye v. State Hwy. Dept., 226 Ga. 389, 398 (175 SE2d 510) (1979); Best v. Ga. Power Co., 224 Ga. 669 (164 SE2d 125) (1968); Fulton County v. Aronson, 216 Ga. 497 (117 SE2d 166) (1960). If, in a condemnation action initiated pursuant to the declaration of taking procedure set forth at OCGA § 32-3-1 et seq., the condemnee fails to file a timely appeal on the issue of value (or, by implication, if the appeal is subject to dismissal for some other reason), the trial court is required to “enter judgment in favor of the condemnee and against the condemnor for the sum of money deposited by the condemnor with the declaration of taking.” OCGA § 32-3-13 (b). That award then becomes res judicata with respect to the issue of just and adequate compensation. Accord Woodside v. Fulton County, 223 Ga. 316, 319 (155 SE2d 404) (1967). The trial court’s order is accordingly affirmed with respect to the court’s determination that the present action for inverse condemnation action is not maintainable; however, to the extent that the court’s order purports to leave the present action pending it is reversed, with direction that the court enter an order granting the DOT’s motion to dismiss the complaint for failure to state a claim upon which relief may be granted.

Decided February 3, 1988

Rehearing denied February 18, 1988

Michael J. Bowers, Attorney General, Charles A. Evans, Carl P. Fredericks, for appellant.

John M. Bovis, Charles N. Pursley, Jr., for appellee.

2. Since the original condemnation case initiated by the DOT is not before us, we do not reach the issue of whether Samuels was entitled to file a renewed notice of appeal in that case pursuant to OCGA § 9-2-61 (a). However, we note that the issue in question was recently decided adversely to Samuels in Adams v. Cobb County, 184 Ga. App. 879 (363 SE2d 260) (1987).

3. We are similarly unable to address the remaining issues raised in the cross-appeal, since they, too, pertain to the original condemnation action rather than to the present action. However, with respect to the issue of the applicability of the “five-year rule” to appeals in condemnation cases, we again refer the parties and the trial court to Adams v. Cobb County, supra.

Judgment affirmed in part and reversed with direction in part.

Birdsong, C. J., and Beasley, J., concur.


text:
    76001.
    ATLANTA FIRE SYSTEMS, INC. v. ALEXANDER UNDERWRITERS GENERAL AGENCY, INC.
    (366 SE2d 197)
   Deen, Presiding Judge.

On January 2, 1979, a fire began in a sandwich shop and spread to several other businesses located in the same small shopping center. The appellant, Atlanta Fire Systems, Inc., had installed a fire alarm system in the sandwich shop, and was insured under a policy issued by the International Indemnity Company. Several lawsuits resulted, in which the appellant was named as one of the defendants. Eventually, the insurer participated in a settlement of all the claims, under which it contributed $20,000 to a pool to be distributed amongst nine claimants. The insurer later assigned its rights under the policy to the appellee, Alexander Underwriters General Agency, Inc.

The appellee commenced this action against the appellant, seeking to recover $4,500, representing the total amount due as deductible under the policy ($500 per claim). Following a bench trial, the trial court entered judgment for the appellee for that amount, and this appeal resulted. Held:

1. In the appellee’s complaint, this action was identified as a suit on an account. At the trial (as well as in a preceding summary judgment motion), however, the action obviously was based on the insurance contract, specifically the endorsement providing that the insured had to pay a $500 deductible for each claim (as opposed to each occurrence). The appellant objected to the admission of the evidence concerning the insurance contract on the basis that the appellee was asserting a different cause of action at the trial. In response to the objection, the appellee suggested that the evidence certainly would amend the complaint, and that, in any event, the appellant could not be surprised at trial since all along it had been clear that the action was based on the insurance contract. Evidently, the trial court agreed with the appellee since it overruled the objection.

Pleadings are amended by the evidence when the issues not raised by the pleadings are tried by express or implied consent of the parties; when one party objects, however, amendment of the pleadings is not so “automatic.” See Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979). Nevertheless, “[i]f evidence is objected to at the trial on the ground that it is not' within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits.” OCGA § 9-11-15 (b). It is apparent in the instant case that the appellant failed to satisfy the trial court that it was surprised by the appellee’s contractual claim and unprepared to defend against it in its merits. We are similarly unpersuaded.

2. The appellee’s assistant vice president of claims testified that the original insurance policy and endorsement had been forwarded to the insured, but that the insurer maintained a copy of the policy that for all practical purposes was identical to the original policy. The only difference would be that the company’s copy would have a declarations page recording the form number of any standard endorsements that had been sent to the insured, rather than attaching copies of such standard endorsements. Given that foundation, the trial court properly admitted the copy of the insurance policy and the endorsement, over the appellant’s objection based on the best evidence rule. Ga. Farm &c. Ins. Co. v. Latimore, 151 Ga. App. 786 (162 SE2d 735) (1979).

Decided February 8, 1988

Rehearing denied February 18, 1988

Fletcher Thompson, for appellant.

3. The policy endorsement obligated the insured to pay a deductible of $500 per claim, inclusive of all loss adjustment expenses. The appellant contends that he was not bound by this endorsement because he never agreed to such an obligation and never received the endorsement. The appellant’s claim of non-receipt of the endorsement conflicted with the insurer’s evidence that delivery of policies and endorsements was standard procedure, and the appellant’s own initial response to the insurer’s demand for payment of the deductible, when the appellant merely disputed having to pay a deductible for each claim rather than for each occurrence. This enumeration of error thus concerns an issue of fact resolved by the trial court in favor of the appellee, which this court will not disturb.

4. The appellee’s assistant vice president of claims testified that, based on his review of the claims file maintained on the appellant, nine claims resulting from the 1979 fire had been settled on behalf of the appellant. In order to identify the nine claimants, however, the witness was improperly allowed to refresh his memory by referring to a list prepared by the appellee’s attorney. “Although a witness may refresh his memory from a writing prepared by another, he must nevertheless testify from his memory thus refreshed. When the document is prepared by a third person not in the presence of a witness, the memory is not refreshed by such memorandum and such testimony is inadmissible.” Zilinmon v. State, 234 Ga. 535, 537 (216 SE2d 830) (1975). Since such specific identification of the nine claimants was actually superfluous, however, we fail to see how this testimony constituted reversible error.

5. As noted above, the insurer had contributed $20,000 to a settlement pool to be distributed, along with other funds contributed by other insurers, to the nine claimants; the insurer had also expended over $39,000 in legal fees in defending the appellant against all nine claims. The appellant contends that this evidence failed to establish that the insurer paid at least $500 on each of the nine claims, thus making the appellant liable for only one deductible of $500. We disagree.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Karl M. Terrell, for appellee.


author: McMurray, Presiding Judge.

text:
    75081.
    SPOONER et al. v. LOSSIAH et al.
    (366 SE2d 236)
   McMurray, Presiding Judge.

Plaintiffs Alvin and Anita Lossiah are husband and wife. Defendants are George Spooner and Spooner Mobile Homes, Inc. Plaintiffs’ complaint alleges that they were the owners and had right of possession to certain personalty, a mobile home and its contents, and that defendants took and unlawfully converted plaintiffs’ personalty; that defendants refused plaintiffs’ demand for the return of their personalty and that defendants negligently allowed plaintiffs’ personalty to be destroyed by fire while in defendants’ unlawful possession. Plaintiffs sought a judgment for the value of the personalty, loss of use of the property and exemplary damages. Upon the trial of the case, the trial court granted defendants’ motion for directed verdict on plaintiffs’ claim for the loss of the contents of the mobile home and on plaintiffs’ claims for punitive damages and attorney fees. The jury returned a verdict in favor of plaintiffs and against defendants awarding plaintiffs the sum of $4,000 plus interest thereon and court costs. Defendants appeal from the judgment entered against them. Held:

1. Defendants enumerate as error the denial of their motions for directed verdict and for judgment notwithstanding the verdict. The evidence at trial showed that defendants were involved in various businesses involving mobile homes, including the operation of Pecan Haven Trailer Park. The plaintiff wife leased a lot at Pecan Haven and the mobile home in question was situated thereon until February 17, 1984. On that date the mobile home was removed from the lot by defendants. The evidence is contradictory as to the condition of the mobile home at that time but it is uncontroverted that no one had been living in the trailer for several weeks prior to its removal.

Defendants rely upon the provisions of the lease of the Pecan Haven lot as authority for their removal of the mobile home from the lot. The lease provided that: “Rent is due and payable in advance on the first working day of each month. Accounts not paid by the 10th will be charged a late charge of $1.00 for each day that the rent is not paid after the 10th. After the 15th, mobile home will be moved from lot without further notice.” The last payment made by plaintiffs was on January 12, 1984, for the month of January. Plaintiffs never paid rent for the month of February. Plaintiffs contend that there was no breach of the timely payment provisions of the lease, as a fact issue existed as to modification of the lease provision by late payments being accepted. See OCGA § 13-4-4. However, the evidence shows only one instance of defendants’ acceptance of a late rental payment and such is not enough to invoke the notice requirement of OCGA § 13-4-4. Prudential Ins. Co. of America v. Nessmith, 174 Ga. App. 39, 40 (329 SE2d 249). As there was no waiver of defendants’ contractual right to remove plaintiffs’ mobile home when no rent was paid for the month of February, defendants’ assumption of possession of plaintiffs’ mobile home was lawful and not a conversion.

Plaintiffs argue that a conversion is shown by their proof that a demand for the return of the mobile home was refused by defendants. Plaintiffs’ evidence shows that on one occasion they unsuccessfully attempted to speak to the individual defendant, George Spooner, but left after they were told he “was tied up with one of his salesmen.” Plaintiffs tried unsuccessfully a number of times to reach the individual defendant by telephone. Subsequently, the individual defendant telephoned the plaintiff wife and thereafter also spoke to the plaintiff husband. The evidence as to each of these conversations merely shows that the individual defendant expressed his willingness to return the mobile home upon payment of a sum of money. (The sum stated to the plaintiff wife was $75, representing the removal of the mobile home from the Pecan Haven Lot. The figure of $175 was stated to the plaintiff husband representing the towing fee plus rent due for two months. The $175 was erroneous as only one month’s rent was actually due.)

There is no evidence that either plaintiff made an unequivocal demand for delivery of the mobile home to himself or herself. Thus, we conclude that there is no evidence that defendants’ continued possession of the mobile home manifested a conversion. International Images v. Smith, 171 Ga. App. 172, 174 (1) (318 SE2d 711); McDaniel v. White, 140 Ga. App. 118, 119 (2) (230 SE2d 500).

On June 25, 1984, the mobile home which remained on defend^ ants’ storage lot was destroyed by fire. While plaintiffs’ action is predicated on the alternate theory that the fire resulted from the negligence of defendants, plaintiffs presented no evidence on this issue at trial beyond showing that the mobile home was within the control of defendants at the time of the fire. Defendants presented evidence that the cause of the fire could not be determined, the mobile home was stored on a secure fenced lot and there was no gas or electricity connected. The evidence was insufficient to show any negligence on the part of defendants, or that any negligence on their part was the proximate cause of the fire which destroyed plaintiffs’ mobile home. Tepper v. Marty's, Inc., 139 Ga. App. 140 (228 SE2d 32); Rhodes v. Duarte, 142 Ga. App. 885 (237 SE2d 212).

As there was no evidence authorizing the jury’s verdict in favor of plaintiffs, the trial court erred in denying defendants’ motions for directed verdict and for judgment notwithstanding the verdict. Life Ins. Co. of Ga. v. Helmuth, 182 Ga. App. 750, 752 (1) (357 SE2d 107); Ketcham v. Franklyn Gesner Fine Paintings, 181 Ga. App. 549, 554 (353 SE2d 44).

Decided February 18, 1988.

Charles R. Adams III, Cynthia T. Adams, for appellants.

Timothy C. Cramer, Christopher Edwards, for appellees.

2. The remaining enumerations advanced by defendants are rendered moot by our decision in Division 1 and need not be considered. Plaintiffs’ motion for frivolous appeal penalty under OCGA § 5-6-6 and defendants’ motion for attorney fees and expenses of litigation in connection with the preparation of a response thereto are denied.

Judgment reversed.

Sognier and Beasley, JJ., concur.


author: Carley, Judge.

text:
    75641.
    SAMS v. THE STATE.
    (366 SE2d 239)
   Carley, Judge.

Appellant was tried before a jury and found guilty of two counts of violating the Georgia Controlled Substances Act. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

Appellant’s sole enumeration of error relates to the closing argument of the State. Appellant objected to a portion of the State’s closing argument and requested the trial court to instruct the jury to disregard it. The trial court sustained appellant’s objection and gave the requested instruction. Although no motion for mistrial was ever made, the trial court’s failure to grant that relief is enumerated as error.

“[I]t is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions. . . . [Cits.]” Keen v. State, 164 Ga. App. 81, 88 (7) (296 SE2d 91) (1982). Here, the trial court granted the curative action requested by appellant. “ ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ [Cit.] [When] the objection to the State’s argument is sustained, the objection will not authorize defense counsel to assert on appeal that the trial court erred in failing to take any additional, unrequested curative actions.” (Emphasis in original.) Hall v. State, 180 Ga. App. 881, 883 (3) (350 SE2d 801) (1986). Appellant’s enumeration is without merit.

Decided February 18, 1988.

James R. McKay, for appellant.

Stephen F. Lanier, District Attorney, for appellee.

Judgment affirmed.

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


text:
    75660.
    JONES v. THE STATE.
    (366 SE2d 238)
    Decided February 18, 1988.

      Emerson D. Henderson, Larry B. Mims, for appellant.
   Carley, Judge.

Appellant was tried before a jury and found guilty of three counts of robbery by intimidation. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

Appellant’s sole enumeration of error is based upon the following remark, which was made during the State’s closing argument: “But don’t you imagine that if there were somebody to account for where [appellant] was when these robberies took place that they would be here?” Appellant moved for a mistrial, on the ground that this remark was an impermissible comment on his constitutional and statutory right not to testify in his own defense. The denial of appellant’s motion for mistrial is enumerated as error.

“ ‘The self-incrimination clause of the Fifth Amendment forbids comment by the prosecution on the defendant’s silence. Comment by the prosecutor “cuts down on the privilege [against self-incrimination] by making its assertion costly.” [Cit.]’ [Cit.] However, ‘ “(I)t is not error for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the [S]tate. [Cit.]” ’ [Cit.] ‘[W]hat is prohibited is a comment that the defendant could have “denied,” “explained,” or otherwise “disputed” the state’s case against him. [Cits.]’ [Cit.] [A statement] such as [that] made by the [prosecuting] attorney in the case at bar [does] not constitute reversible error. [Cit.]” Smith v. State, 170 Ga. App. 673, 674 (317 SE2d 626) (1984). See also Hutchinson v. State, 179 Ga. App. 485, 486 (2) (347 SE2d 315) (1986); Hufstetler v. State, 171 Ga. App. 106, 110 (13) (319 SE2d 869) (1984); Brown v. State, 157 Ga. App. 473, 475 (4) (278 SE2d 31) (1981). Appellant’s enumeration is without merit.

Judgment affirmed.

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

David E. Perry, District Attorney, for appellee.


author: Carley, Judge. Banke, Presiding Judge,

text:
    75282.
    BLOODWORTH v. STATE OF GEORGIA.
    (366 SE2d 324)
   Carley, Judge.

The State initiated condemnation proceedings as to $5,043.68 in cash which had been seized from appellant’s purse during a search. In its petition, the State alleged that the money was subject to forfeiture because it had been found in close proximity to controlled substances and had been used or was intended for use in connection with the unlawful distribution, dispensing, or possession of controlled substances. See OCGA § 16-13-49 (a) (6). Appellant answered, denying the allegations of the petition.

The case was tried before a jury. At the close of the State’s evidence, appellant moved for a directed verdict but the trial court denied her motion. The case was submitted to the jury and a verdict in favor of the State was returned. Appellant appeals from the judgment that was entered on the jury’s verdict.

In her sole enumeration of error, appellant contends that the trial court erred in failing to grant her motion for directed verdict. The evidence showed the following: Police officers, having entered appellant’s trailer pursuant to a search warrant, found large quantities of numerous different controlled substances and various items of drug paraphernalia, all of which were within close proximity to appellant’s purse. Much of the contraband was found in containers and had been calibrated in grams and ounces as if for distribution. Found inside appellant’s purse were syringes, rolling papers, razor blades, a spoon, triangular plastic bags containing white and brown powder and the $5,043.68 in cash. As a result of this search, appellant was charged with six violations of the Georgia Controlled Substances Act, including possession of amphetamines with the intent to distribute, and she pled guilty to all six charges. Appellant testified that she had borrowed $4,200 of the cash for the legitimate purpose of paying off a debt. She also produced a witness who testified that he had loaned her $4,200. Appellant testified that the remaining $843.68 represented savings.

A condemnation proceeding is a civil action wherein the State must meet its burden of proof by a preponderance of the evidence. Green v. State of Ga., 155 Ga. App. 795, 796 (272 SE2d 761) (1980). “ ‘A person will not be presumed to act with criminal intention, but the [trior] of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ [Cit.]” Green v. State of Ga., supra. A review of the transcript reveals that there was sufficient evidence presented at trial from which the trior of fact could reasonably infer that, notwithstanding the exculpatory explanation given for appellant’s possession of over $5,000 in cash and for the lawful use to which she intended that it be put, the money had been used or was intended to be used to facilitate her unlawful distribution, dispensing, or possession of controlled substances which had been found in close proximity thereto. “If there be any evidence to support the verdict, denial of the motion [for directed verdict] is proper. [Cit.]” Maloy v. Planter's Warehouse &c. Co., 142 Ga. App. 69, 72-73 (2) (234 SE2d 807) (1977).

Decided February 3, 1988

Rehearing denied February 19, 1988

Shane M. Geeter, for appellant.

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

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

There was no evidence to connect the cash seized from the appellant’s purse to any drug transaction, nor to rebut the appellant’s explanation for the presence of the cash. Consequently, I believe the motion for directed verdict should have been granted.

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


text:
    75347.
    CITIZENS & SOUTHERN BANK OF ALBANY et al. v. SWAIN.
    (366 SE2d 191)
   Sognier, Judge.

Christine H. Swain, individually and as executrix of the estate of Dixon H. Swain, brought a medical malpractice action against the Citizens and Southern Bank of Albany and Myrtis Rhyne (collectively C & S), the joint executors of the estate of Dr. W. P. Rhyne. C & S moved in limine to exclude certain testimony at trial. The trial court denied the motion, but certified its ruling for immediate review, and we granted C & S’s application for interlocutory review.

The record reveals that while being treated for a knee infection in Dr. Rhyne’s office, Dixon H. Swain suffered an anaphylactic reaction to an injection of penicillin, from which he never recovered. There is conflicting evidence in the record, in the form of deposition testimony, as to whether Dr. Rhyne had prior knowledge that Dixon Swain was allergic to penicillin. Dr. Rhyne’s office assistants testified that notations on the record card for Dixon Swain, indicating “allergic to penicillin,” had not been made before Swain’s unfortunate reaction to the injection, although the record card also indicates Swain’s initial visit to Dr. Rhyne took place some three months before. Appellant and her son testified, however, that Dixon Swain told them he had informed Dr. Rhyne of his allergy to penicillin long before the day in question. It is this testimony which appellants claim is inadmissible.

Appellants contend the trial court erred by denying their motion in limine because the testimony sought to be excluded is hearsay, and is not trustworthy. We agree and reverse. While conceding that the testimony is hearsay, appellees argue that it should be admitted because both witnesses to the occurrence are deceased, and thus this hearsay testimony is “necessary,” it being the only evidence of the transaction. Although appellees correctly point out that OCGA § 24-3-1 (b) provides that “[h]earsay evidence is admitted only in specified cases from necessity,” our courts have required that the testimony be trustworthy as well.

“ ‘The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered. However, the mere fact that a witness is dead does not render the declarations admissible, although, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration.’ [Cit.]” Irby v. Brooks, 246 Ga. 794, 795-796 (I) (273 SE2d 183) (1980). The Irby court distinguished both Fountain v. Cabe, 242 Ga. 787 (251 SE2d 529) (1979) and Jaakkola v. Doren, 244 Ga. 530 (261 SE2d 701) (1979), relied on by appellee. In Fountain, supra, statements were admitted into evidence which “were made by decedent to numerous persons over an extended period of time.” Irby, supra at 796. In Jaakkola, “[t]he witness testifying to the statements was a neighbor and friend of decedents who had no interest in the outcome of the trial.” Irby, supra at 796. Thus, in both cases, “trustworthiness” was found in the disinterested nature of the propounding witnesses. We find Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 878-879 (2) (285 SE2d 566) (1981) distinguishable as well, in that the hearsay testimony admitted there had been given by the decedent at a deposition, and we found that such testimony, given under oath and recorded, was “trustworthy” enough to satisfy the requirement for admissibility under the “necessity” exception. We find no such guarantee of trustworthiness in the evidence sought to be admitted here. Although the opinion in Belote v. Belote, 167 Ga. App. 8, 10 (5) (306 SE2d 24) (1983) does not disclose the nature of the statements attributed to the dead declarant, they could not have been made prior to the commencement of the controversy (a distinction made by the dissent here), since that controversy was a dispute over proceeds of insurance on the declarant’s life. As such, the statements in Belote were no more “self-serving” when made than the statement in the present case. Yet in Belote this court held that Irby, supra, was entirely applicable and the statements were inadmissible.

It is true, as the dissent points out, that in res gestae situations appellate courts have given deference to a trial court’s rulings on the admissibility of evidence unless clearly erroneous. However, the same leeway has not been adopted in regard to dead declarant situations. Instead, dead declarant situations have been distinguished from those involving statements which are part of the res gestae. See, e.g., Chrysler Motors v. Davis, 226 Ga. 221, 226-7 (173 SE2d 691) (1970). We see no reason to blur the distinction in this case. The statement sought to be admitted here is not only hearsay; it is double hearsay. Appellee offered to testify that her deceased husband told her that he had told the now deceased Dr. Rhyne of his allergy to penicillin. Since both the declarant and the person to whom the statement was allegedly made are both dead and thus unavailable for cross-examination, the statement’s “trustworthiness” necessarily depends on that of its offeror. That is the lesson of Chrysler Motors, Irby, and Belote, supra. Using that as the threshold test, we find that here, as in Irby, supra, the statements of the decedent “were offered by witnesses who stood to gain the most from their admission. We cannot say that these statements meet the test of trustworthiness.” Id. at 796. It should be noted that the issue of whether Dr. Rhyne was or should have been aware of the penicillin allergy will not be kept from the jury when the case is tried. The record reflects other evidence bearing on that question. However, they should not have before them, when they decide this issue, evidence which is inherently untrustworthy. It follows that the trial court erred by denying appellant’s motion in limine.

Judgment reversed.

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

Beasley, Judge,

dissenting.

I respectfully dissent and would affirm. The evidence in question is not conclusively inadmissible as a matter of law, so that deference should be given to the trial court’s ruling which would allow the hearsay evidence.

The two criteria of necessity and trustworthiness, initially articulated in Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (1) (173 SE2d 691) (1970), are reiterated and applied in Irby v. Brooks, 246 Ga. 794, 795 (I) (273 SE2d 183) (1980), despite the interim pronouncements in Fountain v. Cabe, 242 Ga. 787, 789 (3) (251 SE2d 529) (1979), and Jaakkola v. Doren, 244 Ga. 530, 531 (1) (261 SE2d 701) (1979).

The “necessity” part of the test is met by the two obligatory facts: the declarant is dead, and there are no other witnesses to the alleged occurrence. Only the doctor and Mr. Swain were present when Mr. Swain informed the doctor that he was allergic to penicillin, and the doctor is also dead. That the “necessity” criterion is satisfied is not disputed.

The issue is whether the offered evidence is sufficiently trustworthy to meet that part of the two-criteria test for permitting the jury to consider this evidence. We should not disturb the ruling unless the court’s determination, that the evidence is sufficiently informative and reliable to warrant jury consideration, is clearly erroneous. Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982). As noted in that case: “The rules of evidence . . . are nothing more than standards which thoughtful observers have found to be effective in delineating that information which is both enlightening and reliable to such degree as to warrant being considered in the making of important decisions.” Id. at 227. Andrews involved a similarly limited exception to the hearsay rule, res gestae. The principle expressed in Andrews was applied also in Henry v. State, 176 Ga. App. 462, 463 (3) (336 SE2d 588) (1985), and Mayer v. Self, 178 Ga. App. 94, 95 (2) (341 SE2d 924) (1986). The leeway accorded the judgment of the trial court in res gestae situations, OCGA § 24-3-3, should also be afforded in dead declarant situations, OCGA § 24-3-1.

Legal trustworthiness is not the same as factual trustworthiness. To meet the legal trustworthiness criterion, the proponent need only show threshold trustworthiness. Are there sufficient indicia or circumstances present so that the jury may know of the statement and decide for itself whether it is trustworthy? It is the jury, of course, which primarily and ultimately determines credibility.

There are two aspects of the trustworthiness criterion. One is the trustworthiness of the statement when made by the declarant, whose death precludes cross-examination as a witness. If the statement was made in circumstances in which it is unlikely to have been untrue, it meets this aspect of trustworthiness. In other words, “ ‘there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered . . .’ ” Chrysler, supra at 224. In some cases, that is met by the conclusion that the statement is embraced in the res gestae. See Chrysler, supra at 226.

That is not the case here but the requirement is nevertheless fulfilled, as it is likely that Mr. Swain was truthful when he told his wife and son, upon arriving home from the doctor’s, that he had advised the doctor he was allergic to penicillin. At the time and in the context in which it was made, it was not a self-serving statement which Mr. Swain would be foreclosed from testifying to at trial were he alive. That is what is at issue when the first aspect is examined. Chrysler, supra. Obviously, if the declarant could not testify to it, no one else could; the hearsay objection just adds another blow.

Mrs. Swain testified that the declarant always told doctors whom he consulted of his allergy, because he was very conscious of it, having had a bad reaction some years earlier. She testified that he would even offer this information in general, when casually talking to people about medical problems. The statement was made three months before the fatal administration of penicillin. It was made in the ordinary course of telling his wife and visiting adult son what had transpired during this, his initial appointment with the new doctor about a bothersome problem. No factors appear which would cast a shadow over the threshold trustworthiness of this statement. It is at least legally likely that Mr. Swain was truthful when he stated that he had told the doctor of his allergy. The evidence demonstrates “a circumstantial guaranty of the trustworthiness of the offered evidence,” which is the crucial inquiry. Chrysler, supra at 224; Irby, supra at 795.

The jury, of course, may reject this conclusion for any number of reasons, such as that Mr. Swain had forgotten that he did not in fact tell the doctor, or that he was merely trying to assure his wife or allay or prevent her anxiety but was in fact not being honest. The point is, the ultimate trustworthiness can be left to the jury here. It is for the jury, under appropriate instructions, to determine the weight and credibility of the declarations. OCGA § 24-9-80; Raleigh & Gaston R. R. Co. v. Allen, 106 Ga. 572, 575 (1) (32 SE 622) (1898); Adams v. Adams, 218 Ga. 67, 77 (4) (126 SE2d 769) (1962).

The second aspect of trustworthiness relates to that of the witness. This is what was focused on in Jaakkola v. Doren, 244 Ga. 530, supra. While trustworthiness was found there because the witness who repeated the declarant’s statement had no interest in the outcome of the case, the opposite is not necessarily true. Just because the witness has an interest, as do the wife and son here, does not make the declaration untrustworthy as a matter of law. It is a circumstance which would weigh against its trustworthiness, it is true, but this negative factor is fully explorable by cross-examination of the interested witness. In addition, it is subject to jury argument to the effect that it should be discounted because of the interest of the witness who brings it to them. The jury need not be shielded from it altogether. In any event, this factor should not be dispositive here.

A circumstance supporting trustworthiness here is that not just one person, but two people, have testified that decedent made the statement. To reject this as a supporting fact would require an assumption not just of fabrication but in addition of collusion.

This case differs from Irby because there the evidence failed on both aspects of trustworthiness. The declarant’s statements were “entirely self-serving” when made, and they were “offered by witnesses who stood to gain the most from their admission.” Irby, supra at 796. Upon this double failure, the Court concluded that it could not say that the statements met the test of trustworthiness, so the trial court did not err in excluding them. The same dual failure was found in Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175 (3) (355 SE2d 104) (1987), and Gentile v. Miller, Stevenson & Steinichen, 182 Ga. App. 690, 692 (1) (356 SE2d 666) (1987), rev'd on other grounds, 257 Ga. 583 (361 SE2d 383) (1987), and apparently in Belote v. Belote, 167 Ga. App. 8, 10 (5) (306 SE2d 24) (1983). See also Cummings v. Grubb, 184 Ga. App. 872 (363 SE2d 167) (1987).

As to the self-serving nature of the declarations of the decedent, Hodges differs from the present case because in Hodges the statements about decedent’s physical condition were made by her immediately prior to her death. Gentile differs because the decedent’s statement was a denial of his having been informed by his employer of his right to enroll in an insurance plan, after it was found that he was not enrolled. The opinion in the Belote case does not disclose the nature or circumstances of the statements. In Chrysler, the statement was made after the decedent suffered the injury.

The distinction between those cases and this is that the statements were self-serving when made, that is, the issue of fact had already arisen and the declarant was taking a position contrary to that taken by one with a contrary interest. When Mr. Swain stated to his wife and son that he told the doctor he was allergic to penicillin, there is no evidence that he knew or believed the doctor would deny this. The issue of fact did not arise until three months later, and it cannot be said that it was anticipated.

If we are to rely on juries to try the facts and ascertain the truth, and if we are to assume that jurors have common sense derived from everyday experience, then we should be chary to keep from them bits and pieces of evidence which may assist in the process, in however small a way, particularly when they relate to the crucial factual question in the case. “ ‘(T)he policy of Georgia [law] is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood.’ ” Whidby v. Columbine Carrier, 182 Ga. App. 638, 645 (356 SE2d 709) (1987). See also Brandon v. State, 165 Ga. App. 94, 95 (1) (299 SE2d 162) (1983); OCGA § 24-1-2.

Decided February 4, 1988

Rehearing denied February 19, 1988

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

William H. Major III, for appellee.

There are sufficient factors to constitute a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered to meet the threshold for admission. This is what is at the heart of the requirement to overcome the hearsay objection. Chrysler Motors Corp., supra. See also the relevant Federal Rules of Evidence, as footnoted in Irby v. Brooks, supra at 796, which grant a degree of discretion to the trial judge.

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


text:
    75822.
    75823.
    SCOTT v. THE STATE. ECHOLS v. THE STATE.
    (366 SE2d 196)
   Banke, Presiding Judge.

Appellants Scott and Echols were jointly tried and convicted of kidnapping and rape. Echols was additionally found guilty of giving a false name to a law enforcement officer. Each has filed a separate appeal from the denial of his motion for new trial. Held:

1. Appellant Scott’s sole enumeration of error is directed to the trial court’s denial of his motion to prohibit any reference to himself by his alias, “Iceman.” The evidence showed that Scott was commonly known by the name Iceman and that the name “Ice” was inscribed on his billfold. It is permissible under Georgia law for an indictment to allege that a defendant has been known by an alias. Radford v. State, 140 Ga. App. 195 (1) (230 SE2d 345) (1976). It is also permissible for a jury to hear or see the allegation pertaining to the alias, and such a reference or disclosure does not, in and of itself, place the defendant’s character in issue. Id. We are unable to address the appellant’s contention that the reference to his alias prejudicially connected him to certain newspaper articles concerning an unrelated robbery, as this contention is based on factual representations in his brief which do not appear in the record. See Morrison v. State, 181 Ga. App. 440 (352 SE2d 622) (1987). Based on these considerations, we find this enumeration of error to be without merit.

Decided February 4, 1988

Rehearing denied February 19, 1988.

Kenneth H. Cail, for appellant (case no. 75822).

William S. Lewis, for appellant (case no. 75823).

Spencer Lawton, Jr., District Attorney, Jeffrey S. Hendrix, Assistant District Attorney, for appellee.

2. Appellant Echols enumerates as error the failure of the trial court to sever his trial from that of Scott, arguing that severance was mandated by the “probability” that prejudice would arise from anticipated testimony disclosing certain unrelated criminal conduct engaged in by Scott. Certainly, one element to be considered by a trial judge in exercising his discretion to grant a severance is “whether there is danger that evidence implicating one defendant will be considered against another defendant despite cautionary instructions to the contrary.” Murphy v. State, 246 Ga. 626, 629 (273 SE2d 2) (1980). However, it appears that the prejudicial testimony anticipated by Echols did not occur. Accordingly, we hold that the trial court did not manifestly abuse its discretion in refusing to grant a severance. See generally OCGA § 17-8-4.

3. Appellant Echols further contends that his rape conviction must be reversed due to lack of evidence establishing penetration on his part. The evidence showed that Scott had sexual intercourse with the victim while Echols held her by the neck and sexually molested another part of her body. “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime . . . if he . . . [i]ntentionally aids or abets in the commission of the crime. . . .” OCGA § 16-2-20 (b) (3). The jury was authorized to find that Echols had aided and abetted the rape and was therefore a party to the commission of the crime. See Carter v. State, 168 Ga. App. 177 (3) (308 SE2d 438) (1983). Hence, Echols’ second enumeration is also without merit.

Judgments affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    75646.
    SLATER v. THE STATE.
    (366 SE2d 240)
   Beasley, Judge.

Convicted of possession of a weapon by an inmate, OCGA § 42-5-63, defendant appealed to the Supreme Court which transferred the case here.

1. Defendant enumerates as error the exclusion of evidence tending to establish that the State engaged in selective prosecution by indicting him but not others who had committed the same offense.

“Whether to prosecute and what charge to bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” Lee v. State, 177 Ga. App. 698, 700 (1) (340 SE2d 658) (1986). See Noeske v. State, 181 Ga. App. 778, 779 (1) (353 SE2d 635) (1987); George v. State, 175 Ga. App. 229, 230 (2) (333 SE2d 141) (1985). “To be a constitutional violation, the selective enforcement must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification.” Sabel v. State, 250 Ga. 640, 643 (4) (300 SE2d 663) (1983). See Oyler v. Boles, 368 U. S. 448, 456 (82 SC 501, 7 LE2d 446) (1962); United States v. Batchelder, 442 U. S. 114 (99 SC 2198, 60 LE2d 755) (1979).

The evidence offered by defendant would have supported a finding that some convicts found in possession of weapons were administratively punished rather than prosecuted. No proof was offered to support even an inference that the selective prosecution was purposeful discrimination based on an unjustifiable standard or arbitrary classification. This gap rendered it not error to reject the evidence, because it would not have established a reason to interfere with the prosecutor’s discretion. Bordenkircher v. Hayes, 434 U. S. 357, 364-5 (98 SC 663, 54 LE2d 604) (1978); United States v. Goodwin, 457 U. S. 368, 380 (n. 11) (102 SC 2485, 73 LE2d 74) (1982); Wayte v. United States, 470 U. S. 598, 607-608 (105 SC 1524, 84 LE2d 547) (1985).

2. Defendant admitted possession of the shank, a foot-long metal rod with a copper tubing sharpened point protruding. He offered a defense of coercion and attempted to substantiate it by showing that he carried the weapon because he was in fear, arising out of past attacks and threats, of suffering bodily harm or even loss of life at any time. The trial court restricted the evidence to that proof showing threats of, or actual, present and immediate violence.

The contours of the defense of coercion are described in Chambers v. State, 154 Ga. App. 620, 624 (269 SE2d 42) (1980), which in part shapes it thusly: “Coercion involves the involuntary performance of a criminal act under fear of threats or menaces involving a direct danger to life or great bodily injury where the danger is abated only by the performance of the criminal act . . . [OCGA § 16-3-26] . . . The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act. [Cits.]” See also Hill v. State, 135 Ga. App. 766, 767 (219 SE2d 18) (1975).

Decided February 19, 1988.

James M. Rea, for appellant.

Michael H. Crawford, District Attorney, for appellee.

None of defendant’s evidence related to present and immediate violence towards him at the time his possession of the weapon was discovered by prison officials, to justify that otherwise criminal possession. There was no showing of reasonable “fears of immediate violence” as required. State v. Moore, 237 Ga. 269, 271 (2) (227 SE2d 241) (1976); Burns v. State, 89 Ga. 527, 528 (7) (15 SE 748) (1892). Restriction of the testimony to time-relevant incidents was not erroneous.

Judgment affirmed.

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


author: Benham, Judge.

text:
    75204.
    BELL et al. v. STONE MOUNTAIN MEMORIAL ASSOCIATION.
    (366 SE2d 353)
   Benham, Judge.

After he was terminated from his employment with appellee, Bell brought this suit as a class action on behalf of everyone employed by appellee as permanent employees before September 11, 1978, and discharged by appellee subsequent to that date without cause, notice, or hearing. September 11, 1978, is a crucial date because it was on that date that appellee, by resolution, amended its personnel policies to eliminate rules providing that the tenure of permanent employees was to be during good behavior and satisfactory performance of duties. The personnel policies were first enacted by appellee in 1966, and were amended in 1976 to add the provisions which were removed from the policies in 1978. The policies, as amended in 1978, provide that all employees serve at the discretion of the general manager of appellee. Bell contends that the policies which were in effect from 1976 to September 1978 conferred on the members of the class a property interest in continued employment during good behavior, and that the amendment of the policies and the subsequent discharge of employees without cause deprived the members of the class of due process.

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U. S. 564, 577 (92 SC 2701, 33 LE2d 548) (1972). Georgia law is of no benefit to appellants in the creation of the asserted property right since employment for an indefinite period such as appellants’, without a written contract providing otherwise, is terminable by the employer at will, and such termination will not give rise to an action for wrongful termination. Ga. Power Co. v. Busbin, 242 Ga. 612 (1) (250 SE2d 442) (1978).

It appears, therefore, that appellants must look to the personnel policies for the source of the property right they assert. That document, however, is equally unavailing because it contains a provision which prevents any of the rights granted by it from becoming vested. That provision states, “These policies and procedures may be amended by Association resolution.” There is no factual dispute in this case concerning the procedural validity of appellee’s action in its September 11, 1978, resolution. The dispute has narrowed to the single question of whether the word “amend,” as used in the policies, is broad enough in meaning to encompass an amendment removing the job security provisions added in 1976.

This issue was addressed in Moffet v. Stone Mountain &c. Assn., United States District Court for the Northern District of Georgia, Civil Action File No. C80-153A, decided April 28, 1981. That court decided that appellee did have the power to amend its policies so as to remove the job security provisions. Although decisions of the federal district courts are not binding on this court (Corvair Furn. Mfg. Co. v. Bull, 125 Ga. App. 141 (3) (186 SE2d 559) (1971)), we are persuaded that the correct result was reached in Moffet.

Appellants’ whole thrust in argument is that the word “amend” can only be used to add to that which is amended, to correct defects, to improve or make changes for the better. In support of that proposition, appellants cite Eminent Household of Columbian Woodmen v. Eppes, 24 Ga. App. 762 (102 SE 174) (1919), and Ranger Ins. Co. v. Columbus-Muscogee Aviation, 130 Ga. App. 742 (204 SE2d 474) (1974). Those cases are clearly distinguishable in that they involve contracts, not the internal resolutions of an organization. Moreover, appellants neglected to complete, in their argument, the quote in Ranger Ins. Co. from Black’s Law Dictionary. In addition to the definitions appellants mention, there is the neutrally phrased, “To change, correct, revise.” Our conclusion is that appellee, in the original enactment of its personnel policies, reserved the power to change, correct, or revise those policies. The amendment of which appellants complain was clearly a change and a revision, and from appellee’s point of view, it was very likely a correction.

Decided February 9, 1988

Rehearing denied February 22, 1988

Fletcher Thompson, for appellants.

Michael J. Bowers, Attorney General, Wayne Yancey, Senior Assistant Attorney General, Bryndis R. Jenkins, Assistant Attorney General, for appellee.

We hold, therefore, that appellee had the authority to delete from its policies the provisions on which appellants rely and that the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in judgment only.