text:
    A91A0846.
    FORTSON v. THE STATE.
    (410 SE2d 774)
   Pope, Judge.

Defendant/appellant Eugene Verdele Fortson appeals from his conviction for the offenses of trafficking in cocaine, possession of a firearm, driving without a license, no proof of insurance, and operating a motor vehicle with an invalid license plate revalidation sticker. On June 21, 1989, defendant was stopped by the Clayton County Police Department during a routine check of all passing motorists for a valid driver’s license and proof of insurance. When defendant was asked to produce those he reached into a brown bag beside him in the car, but was not able to produce either. The officer who stopped defendant then ran a check on defendant’s license and discovered that his license had been suspended. The officer then placed defendant under arrest.

At trial, the arresting officer, who was the only witness called at trial, testified that he then called for a tow truck and conducted an inventory search of the vehicle. While conducting the inventory search, the officer looked in the brown bag that defendant had reached into earlier when he was asked for his license and proof of insurance, and discovered a Beretta .380 automatic handgun and a plastic baggy containing a white powder that was later determined to be 52.5 grams of cocaine.

1. In his first enumeration of error, defendant alleges that the court erred in giving the intent charge because that charge did not inform the jury that the presumption of intent could be rebutted, thus shifting the State’s burden of proof to defendant. The charge about which defendant complains follows: “Ladies and Gentlemen of the Jury, I charge you that a crime is a violation of a statute in this state where [there] is a combination of an act and intention. You may infer, if you wish to do so, that the acts of a person of sound mind and discretion are the product of their will. You may also infer, if you wish to do so, that a person of sound mind and discretion intends the natural and probable consequences of their act. Whether you make such inferences in this case is a matter solely within your discretion. I further charge you, Ladies and Gentlemen of the Jury, that intent to commit the crimes as charged in this indictment is an essential element that the State must prove beyond a reasonable doubt. Intent is always a question for the Jury and is ordinarily ascertained by acts and conduct. Intent may be shown in a lot of ways, provided you, the Jury, find that it did exist from the evidence that has been produced before you. Intent may be inferred from the proven circumstances or by acts and conduct, or it may be inferred when it is the natural and necessary consequences of some act. These inferences may be drawn by you if you choose to do so.” (Indentions omitted.)

We cannot agree with defendant’s contention of error. As our Supreme Court recently stated in Isaacs v. State, 259 Ga. 717 (386 SE2d 316) (1989), when deciding whether a charge on intent violates Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979), the court must decide whether the alleged erroneous charge contains “language of command,” which requires the jury to find intent if a certain fact is proven, or if the charge makes it clear that it is within the jury’s discretion to find intent from the facts proved and that the State has the burden of proving intent. Id. at (35) (b). The disputed charge makes it clear that the State has the burden of proving intent. The charge does not contain “language of command.” The charge to the jury also included the following language: “[The] burden [of proof] always remains on the State and never shifts to the defendant. The defendant does not have the burden to prove anything. Every person is presumed innocent until proven guilty. No person shall be convicted of a crime unless each and every essential element of the crime is proved beyond a reasonable doubt.” (Indentions omitted.) For all of these reasons, we do not find that the charge in question constitutes impermissible burden shifting.

2. Defendant also contends that the trial court erred in denying his motion to suppress evidence seized in the inventory search of the vehicle. Defendant does not dispute that the Clayton County Police Department called a tow truck to impound defendant’s car. Defendant testified at the hearing on his motion to suppress that before the search was conducted he made arrangements with the tow truck driver for the transport of his vehicle to be a “private pull” and gave the driver $50 for the service. He further testified that the officer did not ask to look in the vehicle until after he asked the officer if he could secure the things in his car in the trunk. After the officer looked in the car and found the gun and drugs, defendant testified that the officer then instructed the driver that the car should be impounded. He stated that the driver then voided the ticket written as a private pull and returned defendant’s $50. Defendant contends that the officer’s search and impoundment of his vehicle was unreasonable because after he reached an agreement with the driver of the tow truck he had an agent who could remove his vehicle and there was no reasonable cause for the search. The officer testified that a private pull arrangement was discussed but not agreed upon and that the policy of the Clayton County Police Department was to conduct an inventory search of all vehicles when the tow vehicle was summoned by the department.

In reaching its decision that the search was a proper inventory search, the trial court did not discuss the conflicting testimony or whether at the time of the search arrangements had been made for a private pull, but found that because the police department had summoned the tow vehicle it was reasonable for the officer to conduct an inventory search. This court has consistently held that “ ‘ “(w)hen a driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed; or where the arrestee expresses a preference as to towing service and designates an appropriate carrier and destination for the vehicle, it is unnecessary for the police to impound it. In either of these instances the rationale for an inventory search does not exist.” ’ State v. Ludvicek, 147 Ga. App. 784, 786 (250 SE2d 503) (1978).” Mulling v. State, 156 Ga. App. 404, 405 (2) (274 SE2d 770) (1980). We agree with the trial court that an inventory search is appropriate whenever the police department selects the towing vehicle rather than the defendant in order to protect the police against claims of lost or stolen property.

The search in question would also be valid as a search incident to arrest as authorized in New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981). In that case, the Court held “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnote omitted.) Id. at 460. “This court has held that ‘a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted.’ State v. Watkins, 182 Ga. App. 431, 432 (356 SE2d 82) (1987). ‘The decisive factor is whether the arrestee was, at the time of his arrest, a “recent occupant” of the automobile and its contents were in his immediate control at the time of the search.’ State v. Hopkins, 163 Ga. App. 141 (2) (293 SE2d 529) (1982).” Sims v. State, 197 Ga. App. 214, 215 (2) (398 SE2d 244) (1990). The bag that contained the handgun and the drugs was located in the passenger compartment of the automobile from which defendant had recently been removed. Accordingly, the search would also clearly be authorized as a search incident to arrest.

Decided September 6, 1991

Reconsideration denied September 23, 1991

Terry L. Shaw, F. Robert Raley, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A1051.
    FINE v. HIGGINS FOUNDRY & SUPPLY COMPANY, INC.
    (410 SE2d 821)
   Sognier, Chief Judge.

David N. Fine filed an action in Fulton County against Higgins Foundry & Supply Company, Inc., seeking damages for personal injuries he incurred when the front wheel of the bicycle he was riding on a public road slipped through the spaces in a grate manufactured and installed by Higgins. Fine voluntarily dismissed his action and refiled the renewal action in Cobb County within six months pursuant to OCGA § 9-2-61 (a). The trial court dismissed the renewed complaint on the ground that the action was barred by the statute of limitation and laches, and Fine appeals.

The record reveals that the original complaint was filed in Fulton County on July 8, 1988, two days before the expiration of the applicable statute of limitation. Appellant was apparently unaware that appellee had changed its registered agent two years before the complaint was filed, as evidenced by a copy of appellee’s corporate annual registration for 1987, included in the record, and unsuccessfully sought service on appellee’s former registered agent. Service was not accomplished upon appellee until January 13, 1989, more than six months after the complaint was filed, when appellee’s current registered agent, who lived in Cobb County, was served with the Fulton County complaint by second original. Appellee answered but raised no affirmative defenses. On the scheduled trial date, appellee filed an amendment to its answer raising for the first time the affirmative defenses of statute of limitation and laches. Appellant dismissed the action on the same day and, pursuant to OCGA § 9-2-61, filed the renewal action sub judice in Cobb County within six months of the dismissal of the originar action. Appellee was served promptly in the renewal action and filed a timely answer raising as affirmative defenses the statute of limitation and laches with regard to the first action. Seven months after filing its answer to the instant action, appellee filed a motion captioned “Motion to Hear Defenses Prior to Trial,” and following a hearing the trial court entered an order dismissing the renewed complaint because it found that appellee’s affirmative defenses were meritorious.

1. Appellant contends the trial court erred by ruling that appellee could raise in this action the defenses of the statute of limitation and laches as to the first action.

(a) Pursuant to OCGA § 9-2-61, appellant was entitled to dismiss his original action and file this renewal action within six months of the dismissal if the original suit was a valid suit, even if voidable. Because OCGA § 9-2-61 does not apply if the original suit was void, Hornsby v. Hancock, 165 Ga. App. 543, 544 (301 SE2d 900) (1983), we must determine whether the original action was void or merely voidable.

It is undisputed that service was perfected in the original suit after the expiration of the statute of limitation. Filing a complaint without subsequently perfecting service does not constitute a pending suit, Hilton v. Maddox, Bishop, Hayton &c., 125 Ga. App. 423, 425 (188 SE2d 167) (1972), but when service is perfected with reasonable diligence, service relates back to the date of filing even though the statute of limitation has expired. Id. When an action is filed near the expiration of the statute of limitation, however, belated service may amount to laches, authorizing the trial court to dismiss the action. See id. at 426-427. Because such a dismissal is in the discretion of the trial court, Watters v. Classon, 193 Ga. App. 493, 494 (1) (388 SE2d 397) (1989), until and unless the trial court enters an order dismissing that action it is merely voidable rather than void. Accordingly, under the facts sub judice, because service had been perfected, albeit belatedly, the original action was merely voidable and not void. Service thus related back to the date of filing, thereby preventing the suit from being barred by the statute of limitation. It follows that by voluntarily dismissing his valid suit, appellant acquired the right to file a renewal action within six months pursuant to OCGA § 9-2-61.

(b) Contrary to appellant’s argument, since an action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo, as a general rule a defendant is not estopped from raising a proper defense in the renewal action solely because that defense was not raised in the original action. Adams v. Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987). Nevertheless, although they were not waived by appellee’s failure to raise them in the original action, we agree with appellant that the affirmative defenses raised in this renewal action were not proper defenses because the delayed service in the first action was not repeated and appellee was served promptly in the renewal action. Compare Adams, supra (defendant properly raised affirmative defense of insufficiency of service of process in renewal action, even though not raised in original action where service had been accomplished in same manner); Hornsby, supra (in renewal action brought in same county as original action, defense of improper venue properly raised despite failure to assert in first action). Therefore, pretermitting the question whether the affirmative defense of laches was proper in the original action where service was belated, it had no basis in fact in the renewal action, and thus the statute of limitation was tolled during the six month renewal period. Accordingly, we cannot agree with the trial court that the affirmative defenses raised in this renewal action were meritorious, and we hold that the trial court’s dismissal of appellant’s complaint on that basis was erroneous. As our review of the record reveals no other basis upon which the trial court’s dismissal of the complaint may be affirmed, the trial court’s judgment must be reversed. See generally Jones v. Phillips, 183 Ga. App. 11, 12 (357 SE2d 853) (1987).

Decided September 23, 1991.

Didio & Broome, Stefano A. Didio, for appellant.

William P. Walker, Jr., for appellee.

2. Our holding in Division 1 renders it unnecessary that we address appellant’s remaining enumeration of error.

Judgment reversed.

McMurray, P. J., concurs. Andrews, J., concurs in the judgment only.


author: Birdsong, Presiding Judge.

text:
    A91A1329.
    MIMS v. THE STATE.
    (410 SE2d 824)
   Birdsong, Presiding Judge.

Barry Mims appeals his convictions of driving a motor vehicle after having been declared a habitual violator (OCGA § 40-5-58) and misdemeanor obstruction of a police officer. The record shows Mims was indicted on three counts, habitual violator, driving on a suspended license, and obstructing a police officer by giving a false name; but, pursuant to a negotiated plea, he pled guilty only to habitual violator and misdemeanor obstruction of an officer. The driving on a suspended license count was later dismissed.

The transcript shows that before entering the plea, Mims filed a motion to suppress, and after the motion to suppress was denied, he negotiated the agreement under which he pled guilty. At the time of his plea, however, Mims announced his intention to reserve his right to contest the denial of his motion to suppress. Mims now contends the trial court erred by denying his motion to suppress evidence obtained by a police officer after what Mims contends was an illegal roadblock. Held:

1 . We take this opportunity to clarify the procedures applicable when a defendant seeks to plead guilty while reserving the opportunity to appeal directly a prior adverse ruling by the trial court. Nothing in this opinion, however, concerns appeals of such rulings under the interlocutory appeals procedures in OCGA § 5-6-34 (b).

The transcript states the trial judge permitted the defendant to preserve the denial of the motion to suppress for appellate review because “the Court of Appeals apparently accepts appeals on that basis.” Although this court considers errors asserted after trial courts have permitted defendants to condition their guilty pleas on reserving the opportunity to appeal adverse rulings made prior to the plea (see, e.g., Daniel v.State, 199 Ga. App. 180 (404 SE2d 466)), the general rule is that errors are not preserved because a guilty plea waives all defenses and objections, known and unknown. Thomason v. Caldwell, 229 Ga. 637, 644 (194 SE2d 112)); Polk v. Holland, 229 Ga. 169, 170 (190 SE2d 35). Accord Morgan v. State, 191 Ga. App. 367, 368 (381 SE2d 583): A valid guilty plea is treated as a confession of guilt and waives all defenses known and unknown.

Further, as conditional pleas necessarily confer upon defendants benefits to which they are not otherwise entitled by our law, such guilty pleas are a form of plea bargaining that must be agreed to by the State. If not, the effect would be to authorize defendants to force the State to plea bargain and accept negotiated pleas, which defendants have no right to do. Mergel v. State, 198 Ga. App. 759, 760 (402 SE2d 800); Bostic v. State, 184 Ga. App. 509, 511 (361 SE2d 872). Consequently, trial courts should accept guilty pleas with this condition only when the prosecution expressly agrees. Otherwise the result will necessarily involve trial courts in unauthorized participation in plea discussions. See Rule 30, Uniform Rules for Superior Courts; Skomer v. State, 183 Ga. App. 308, 309-310 (358 SE2d 886).

Moreover, trial courts have the discretion to accept or reject guilty pleas (Harris v. State, 175 Ga. App. 134, 135 (332 SE2d 685); Echols v. State, 167 Ga. App. 307, 308 (306 SE2d 324)), even when the guilty plea is part of a plea bargain. State v. Germany, 246 Ga. 455, 456 (271 SE2d 851). Therefore, it is the responsibility of the trial court to decide whether to exercise its discretion and accept a guilty plea on condition that appellate issues are preserved.

Accordingly, defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved; and an unconditional guilty plea will waive any defenses and objections (Massey v. State, 137 Ga. App. 484, 485 (224 SE2d 117)) except an appellate issue of whether such plea was voluntarily made by appellant and accepted following proper inquiry by the trial court. Because the trial court accepted Mims’ guilty plea with his reservation, we will consider the error enumerated.

2. Mims contends the trial court erred by denying his motion to suppress because the roadblock in this case did not meet the criteria established in Evans v. State, 190 Ga. App. 856 (380 SE2d 332) and State v. Golden, 171 Ga. App. 27 (318 SE2d 693) as the roadblock was not authorized by supervisory personnel and the roadblock was not well identified as a police checkpoint.

The transcript of the evidentiary hearing on the motion shows the state trooper testified without contradiction he had the prerogative of authorizing and setting locations of roadblocks, he authorized the roadblock in this case prior to setting up the roadblock, and he was waiting for another officer to arrive at the designated place for the roadblock when Mims arrived and was stopped. Further, the state trooper testified that the roadblock was marked by his patrol car stopped on the side of the road and he was standing in the middle of the road to stop traffic. The trooper also testified that after he apprehended Mims, he called the other patrolman and canceled the roadblock because he had to take Mims to jail.

After considering this evidence, the trial court ruled that the factors set out in Evans and Golden were not absolute “bright-line, black-letter” requirements, but were factors to consider in deciding whether there was a valid routine roadblock or the kind of isolated vehicle stop rejected by Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660). Thus, the trial court considered the totality of the circumstances, found the roadblock was a legitimate drivers’ license check, and denied the motion.

We agree. Neither Evans nor Golden establish absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans this court looked “at the totality of the circumstances surrounding the roadblock” to decide whether “the factors considered in Golden were satisfied.” Id. at 857. In the same manner, this court in Sapp v. State, 188 Ga. App. 700, 701 (374 SE2d 114) affirmed the denial of a motion to suppress based upon “the evidence of a routine license check sufficient to support the validity of the stop” even though appellant urged that the State failed to introduce evidence concerning the manner in which the roadblock was implemented and conducted. Accord Davis v. State, 194 Ga. App. 482, 483 (391 SE2d 124).

Decided September 23, 1991.

Barkley & Garner, Richard E. Barnes, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Leigh E. Patterson, Assistant District Attorneys, for appellee.

As there is no question that state troopers are authorized to enforce laws on use, ownership, control, licensing, and registration of motor vehicles and using roadblocks for such purposes are reasonable and acceptable (Davis v. State, supra), the only issue in this appeal is whether the trial court correctly decided that the evidence established that this roadblock was authorized and that Mims was not singled out to stop. In deciding the issue, however, our review is governed by the principle that in ruling upon motions to suppress “the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” State v. Swift, 232 Ga. 535, 536 (207 SE2d 459).

Applying this standard of review, the evidence shows that this was a valid roadblock and not a pretext for stopping Mims’ vehicle. Accordingly, as the trial court’s findings of fact are adequately supported by evidence of record, this enumeration of error is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A91A0872.
    STARR v. WIMBUSH.
    (410 SE2d 776)
   Pope, Judge.

Plaintiff Kenneth Starr was allegedly injured in an automobile collision involving defendant Ralph W. Wimbush on January 28, 1987. Plaintiff filed an action for personal injury on January 25, 1989, two days before the expiration of the period of limitation on the action. Personal service on defendant was not perfected until August 23, 1989. Defendant answered and raised the defense that the action was barred by the applicable statute of limitation. Defendant filed a motion to dismiss and the trial court granted the motion, finding the plaintiff failed to show the exercise of due diligence in perfecting service. Plaintiff appeals.

1. We reject plaintiff’s argument that dismissal was improper because defendant waived the defense of insufficient service of process. Regardless of its timeliness, personal service was eventually perfected on defendant. Thus, no ground existed for any objection to the method of service. The motion to dismiss was brought on the ground that the action is barred by the statute of limitation and defendant’s right to dismissal on this ground was not waived.

2. Plaintiff argues the trial court erred in finding he failed to show he exercised due diligence in attempting to perfect service.

“Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. (Cit.) The plaintiff has the burden of showing that due diligence was exercised. (Cits.) Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. (Cit.) Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990). Green v. Young, 197 Ga. App. 101, 101-102 (397 SE2d 509) (1990).” (Punctuation omitted.) Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (408 SE2d 111) (1991). The only issue thus presented is whether the trial court abused its discretion in finding plaintiff failed to show due diligence in perfecting service.

Plaintiff showed he relied upon the information contained within the accident report of the automobile collision which forms the basis for plaintiff’s complaint when he listed defendant’s address on the summons attached to the complaint. After the return of service, dated February 3, 1989, showed service was not perfected because defendant had moved from the stated address, plaintiff instructed a private investigator to search for defendant’s whereabouts. The affidavit of the private investigator attests he was contacted by plaintiff’s attorney on February 6. The affidavit sets forth numerous inquiries he made between February 14 and August 9, when he obtained the address where personal service was perfected on August 23. During this period, some effort was made to locate defendant at least every three weeks.

Plaintiff showed he made steady efforts, although after the expiration of the limitation period, to discover defendant’s whereabouts. Nevertheless, if this was all the record showed we would be constrained to hold the trial judge did not abuse his discretion because the evidence did not demand a finding of due diligence. See Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300) (1990). The record shows, however, the plaintiff obtained from a different trial judge an order dated June 30, 1989, permitting service by publication and shows service by publication was attempted in accordance with OCGA § 9-11-4 (e) in July 1989. Of course, “[b]ecause this was a tort action seeking an in personam judgment against defendant, the attempted service by publication was ineffective.” Jones v. Cropps, 197 Ga. App. 313, 314 (1) (398 SE2d 295) (1990). However, the order permitting service by publication expressly found, based on evidence presented in support of the motion for such service, that defendant could not be found “after due diligence.” Because due diligence had already been found as of June 30, and the record shows several additional steps were taken to locate defendant between June 30 and the date he was served less than two months later, we hold the trial court did abuse its discretion in dismissing plaintiff’s complaint.

Decided September 6, 1991

Reconsideration denied September 24, 1991

William J. Deangelis, for appellant.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellee.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1085.
    HALL & SOSEBEE TRUCKING COMPANY, INC. v. SMITH.
    (410 SE2d 784)
   Sognier, Chief Judge.

Hall & Sosebee Trucking Company, Inc. (HST) filed what was denominated a “complaint in equity” requesting the Superior Court of Murray County to “set aside ... on the basis of fraud and misrepresentation” a consent agreement filed with and approved by the State Board of Workers’ Compensation pursuant to OCGA § 34-9-15 awarding HST’s employee, George Smith, workers' compensation benefits. The consent agreement had been approved in January 1989; HST’s complaint was filed in October 1990. Smith answered and moved pursuant to OCGA § 9-11-12 (b) (6) to dismiss the complaint for failure to state a claim upon which the relief sought could be granted. The trial court granted the motion on the basis that HST had not filed its appeal within the 20 day period from the date of the award as set forth in OCGA § 34-9-105 (b). HST appeals.

We reverse. Although appellant denominated its complaint as one in equity, the use of which has been abolished, OCGA § 9-11-60 (e), disregarding the label of apppellant’s motion and looking to its substance, see generally Perryman v. Ga. Power Co., 180 Ga. App. 259 (1) (348 SE2d 762) (1986), appellant’s motion was actually one to set aside the judgment for fraud, which is governed by OCGA § 9-11-60 (d) (2). As we have recently held in Griggs v. All-Steel Bldgs., 201 Ga. App. 111 (410 SE2d 309) (1991), the proper way to challenge an award of the Board on the basis that the award was obtained through fraud or misrepresentation is to bring a motion to set aside pursuant to OCGA § 9-11-60 (d) in the superior court.

In its motion to set aside, appellant asserted that after appellee reportedly sustained an injury to his back in the course of his employment, he filed a claim for income and medical benefits under the Workers’ Compensation Act, alleging in sworn testimony with supporting documentation that his work-related injury resulted in a loss of mobility and psychological difficulties. Appellant asserted that it entered into the consent agreement approved by the Board in reliance on appellee’s representations, which it alleged were false and were made with the intent to defraud appellant into entering into the consent agreement.

Appellant does not assert in its motion to set aside when it learned of the alleged fraud in appellee’s representations. However, “[w]hen the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the . . . rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in [its] favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” (Citations and punctuation omitted.) Morgan v. Ga. Vitrified Brick &c., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990). If appellant knew or should have known of the fraud in the obtaining of the award in time to have raised it by direct appeal under OCGA § 34-9-105 (b), (c), the cases relied upon by the superior court, such as Lavender v. Zurich Ins. Co., 110 Ga. App. 196, 198 (138 SE2d 118) (1964), would be applicable. However, given that the allegations of appellant’s motion to set aside do not disclose when and under what circumstances appellant learned of the alleged fraud, it does not appear with certainty that appellant will not be able to prove facts entitling it to the relief sought. Accordingly, the trial court erred by granting appellee’s motion to dismiss. See generally Morgan, supra.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

Decided September 10, 1991

Reconsideration denied September 24, 1991.

Hine, Carroll & Niedrach, Paul T. Carroll III, John F. McClellan, Jr., for appellant.

Mitchell, Coppedge, Wester, Bisson & Miller, Joseph T. Leman, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A0766.
    SINKFIELD v. THE STATE.
    (411 SE2d 68)
   McMurray, Presiding Judge.

Defendant was indicted for aggravated assault (with a deadly weapon) in that he did shoot Hymond Wimbush with a firearm. The evidence adduced at a jury trial showed that defendant assisted Curley Kendall, Jr., during a shooting spree on June 24, 1989, which resulted in the death of Horace Bowles and injuries to Hymond Wimbush and James Godfrey. The jury found defendant guilty and this appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first and eighth enumerations, defendant challenges the denial of his motion for directed verdict and the denial of his motion for new trial, arguing that the evidence was insufficient to authorize a finding that he was a party to the aggravated assault of Hymond Wimbush. We do not agree.

“Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto. . . .” OCGA § 16-2-21. In the case sub judice, the State’s evidence shows that defendant drove a vehicle within gunshot range of Hymond Wimbush; that Curley Kendall, Jr., fired a shotgun from the vehicle defendant was operating, wounding Hymond Wimbush, and that defendant fled with the assailant after the shooting. This evidence and eyewitness testimony that defendant drove the getaway vehicle after Curley Kendall, Jr., shot other victims with a shotgun on June 24, 1989, was sufficient to authorize a finding, beyond a reasonable doubt, that defendant was a party to the aggravated assault of Hymond Wimbush. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in denying defendant’s motion for directed verdict and motion for new trial.

2. In his second enumeration, defendant contends “[t]he trial court erred in allowing the State to put [his] custodial statement into evidence since the trial court did not properly conduct a hearing into the voluntariness of the statement.”

Special Agent Davis of the Georgia Bureau of Investigation (“GBI”) testified regarding the circumstances of defendant’s custodial interrogation. However, defense counsel did not then request a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing outside the presence of the jury. Consequently, there was no requirement for such a hearing. McNair v. State, 190 Ga. App. 412, 413 (2) (379 SE2d 424). Nonetheless, defendant claims that he challenged the admissibility of his custodial statement in a pre-trial motion to suppress and that the trial court ruled on his motion to suppress without a hearing. This contention is not supported by the record.

Before trial, a hearing was called on defendant’s motion to suppress and defense counsel did not then challenge the admissibility of defendant’s custodial statement. He only responded, “After review of the file, I don’t believe that the defendant that I represent, Mr. Raymond Sinkfield, Jr., has any standing with regard to the items seized as a result of the stop in Coweta County.” The trial court then denied the motion to suppress. These circumstances do not reveal a foreclosure of the right to a hearing on the admissibility of defendant’s custodial statement. On the contrary, this portion of the record reveals that defendant was provided a full and fair opportunity to press any issue allegedly raised under the motion to suppress and that defense counsel waived any claim thereunder by failing to press issues at the pre-trial motion to suppress hearing. See Willis v. State, 197 Ga. App. 230 (2) (398 SE2d 259). Moreover, Special Agent Davis’ testimony revealed that defendant was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694); that defendant indicated an understanding of his constitutional rights; that defendant was made aware that he could invoke his rights at any time during questioning; that defendant was not threatened, promised or coerced into giving a statement and that defendant waived his constitutional rights and gave a statement “about the shooting death of Horace Phillip Bowles . . ., the shooting of James Godfrey, and the shooting of Hymond Wimbush.” This testimony is sufficient to authorize a finding that defendant freely, knowingly and voluntarily submitted to custodial interrogation. See Dent v. State, 243 Ga. 854 (2) (257 SE2d 241).

3. Defendant next contends the trial court erred in denying his motion for a State-funded psychiatric examination and argues the trial court’s failure to make an “effort to determine [his] mental competence or mental abilities deprived [him] of due process and was reversible error.”

Defendant filed motions for State-funded psychological and psychiatric examinations and a notice of intent to raise the issue of mental competency to stand trial. However, defendant did not plead insanity under OCGA § 17-7-131 (b) (1) and he did not file a notice of intent to raise the issue of insanity at the time of the alleged offense as is required under Rule 31.4 of the Uniform Rules for the Superior Courts of Georgia.

“The constitutional guarantees require the trial court to inquire into competency, even where state procedures for raising competency are not followed, if evidence of incompetence comes to the court’s attention.” Baker v. State, 250 Ga. 187, 188 (1), 190 (297 SE2d 9). In the case sub judice, a jury was empaneled and sworn and, before the introduction of evidence, the trial court called a hearing on defendant’s motion for a State-funded psychiatric examination. The trial court then asked defense counsel “to make a prima facie showing that [defendant] needs it.” Defense counsel responded, “I rely on [OCGA §] 17-7-31.” The trial court denied defendant’s motion for a State-funded psychiatric examination.

“ ‘The grant or denial of a motion for independent psychiatric examination lies within the discretion of the trial court and will not be overturned unless an abuse of discretion is shown. (Cit.)’ ” Hill v. State, 259 Ga. 557, 558 (2b) (385 SE2d 404). In the case sub judice, defendant was given a hearing on his motion for a State-funded psychiatric examination, but defense counsel did not then offer proof that defendant was unable to intelligently participate during trial and that defendant’s sanity at the time of the offense was a significant factor at trial. See Jones v. State, 189 Ga. App. 232, 234 (2) (375 SE2d 648). Further, a review of the record does not reveal a lack of competency on the part of defendant. On the contrary, defendant testified on his own behalf and responsively answered questions on direct and cross-examination. See Pless v. State, 260 Ga. 96, 98 (3) (390 SE2d 40), and Thaxton v. State, 260 Ga. 141, 143 (4) (390 SE2d 841). Under these circumstances, we find no abuse of discretion in the denial of defendant’s motion for a State-funded psychiatric examination. Compare Baker v. State, 250 Ga. 187, 188 (1), supra, where the defendant was not afforded a hearing on the issue of competency.

4. In his fourth enumeration, defendant contends “[t]he trial court erred in allowing the State to impeach it’s [sic] own witness without first laying a proper foundation.”

“ ‘Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. (Cits.)’ Newman v. State, 239 Ga. 329, 330 (236 SE2d 673) (1977).” Robinson v. State, 175 Ga. App. 845 (2), 846 (334 SE2d 886). In the case sub judice, defense counsel objected when the State’s attorney attempted to impeach his own witness and argued that the State’s attorney “has not laid a proper foundation to declare this witness a hostile witness.” However, defense counsel did not then state what the proper foundation should be. Under these circumstances, we find nothing for review.

5. In his fifth enumeration, defendant contends “[t]he trial court erred in allowing officers to testify to statements made by co-defendant Curley Kendall.”

The State called Deputy Duckett of the Coweta County Sheriff’s Department and Special Agent Davis of the GBI to impeach State’s witness Curley Kendall, Jr. Defense counsel objected and argued that the State could not impeach its own witness without a declaration that the witness was hostile and that the State “is now bound by . . .” Curley Kendall, Jr.’s trial testimony. The trial court overruled defendant’s objection and the officers testified, revealing that Kendall made prior statements which conflicted with his trial testimony.

A party may impeach its own witness through the use of a prior inconsistent statement and a prior inconsistent statement is admissible as substantive evidence when the maker of the statement takes the stand and is subject to cross-examination. Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717). Further, it is unnecessary to show entrapment or surprise when a party is impeaching its own witness. Ranger v. State, 249 Ga. 315, 317 (2) (290 SE2d 63); Davis v. State, 249 Ga. 309, 313 (3) (290 SE2d 273). In the case sub judice, Kendall testified for the State and was available for cross-examination. Consequently, the trial court did not err in allowing the State to impeach Kendall through the testimony of Deputy Duckett and Special Agent Davis. This enumeration is without merit.

6. Defendant contends that a 1973 indictment wherein he was charged with aggravated assault was improperly admitted during the sentencing phase of trial because he was not given timely notice that the indictment would be used in aggravation of punishment and because the 1973 indictment does not indicate that he was convicted of the crime charged therein. This enumeration presents nothing for review.

“This court will not review for legal error any sentence which is within the statutory limits — as in the instant case. Garrett v. State, 147 Ga. App. 500 (3) (249 SE2d 315); Daniels v. State, 154 Ga. App. 323 (3) (268 SE2d 376). Any question as to the excessiveness of a sentence which is within legal limits should be addressed to the sentence review panel, as provided in Code Ann. § 27-2511.1 (Ga. L. 1974, pp. 352, 358; 1977, pp. 1098, 1104) [now OCGA § 17-10-6].” Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510).

7. In his seventh enumeration, defendant contends the evidence did not support the trial court’s charge on voluntary intoxication and cites Sweat v. State, 119 Ga. App. 646, 647 (2) (168 SE2d 654), wherein it was held that a charge on drunkenness was error because there was insufficient evidence to authorize a finding that defendant committed the crime charged. The case sub judice is distinguishable from Sweat v. State, supra, in that there is sufficient evidence to authorize a finding, beyond a reasonable doubt, that defendant was a party to the aggravated assault of Hymond Wimbush and there is evidence that defendant was intoxicated at the time of the crime. See Carter v. State, 146 Ga. App. 322 (4) (246 SE2d 378). The trial court did not err in charging on voluntary intoxication.

Decided September 9, 1991

Reconsideration denied September 25, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Anne C. Allen, for appellant.

William G. Hamrick, Jr., District Attorney, David P. Oliver, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0853.
    MORRIS v. COWART.
    (411 SE2d 81)
   McMurray, Presiding Judge.

Appellant Arthur D. Morris conveyed a tract of land in Walton County to appellee Brenda H. Cowart on September 15, 1986, for a purchase price of $50,000. The sales contract, prepared by Gary L. Lemonds for the Lemonds Land Company, Inc., provided that $10,000 was to be paid down at closing and the remainder to be financed by the seller. The property included a partially completed house and another finished “small blue house” which appellee wanted to rent to tenants. In November 1986 appellee learned that Walton County officials would not allow the small house to be used as a dwelling because it was built without a permit and was not up to code standards. Appellee Brenda H. Cowart filed the instant action in December 1986 against appellant Arthur D. Morris and against Lemonds Land Company, Inc., broker Gary L. Lemonds and sales agent Bonnie M. Garrett, seeking rescission of the contract and damages for fraud and breach of warranty. Immediately prior to trial on April 2, 1990, appellee entered into a settlement agreement with Lemonds Land Company, Inc., and Gary L. Lemonds for the amount of $3,500, and the suit against them was dismissed with prejudice. The case proceeded to trial against appellant Morris and Bonnie M. Garrett and the jury returned a verdict against them in the amount of $10,000, rescinding the contract of sale. No interest, attorney fees or punitive damages were awarded. Appellant Morris enumerates as error the sufficiency of the evidence; the denial of his motions for directed verdict; improper instruction to the jury over objection; and the trial court’s refusal to reduce the verdict by the sum of $3,500. Held:

1. Appellant argues that the evidence was insufficient to support the jury’s verdict in favor of appellee Cowart on her claim for rescission of the sales contract based upon the fraud of the defendants because there was no showing that she exercised ordinary diligence to discover that the little blue house did not comply with building codes and thus could not be rented. We do not agree. “ ‘As was pointed out by this court in Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141) (affirmed 239 Ga. 31 (235 SE2d 532)), fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. Traditionally, the rule of caveat emptor had applied and the sales contract merged into the warranty deed and foreclosed any right of remedy by the purchaser after the closing of the contract by transfer of the deed. [Cit.] Wilhite, supra, changed the rule of caveat emptor and placed upon the builder-seller a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction. [Cit.]’ Mulkey v. Waggoner, 177 Ga. App. 165, 166 (338 SE2d 755).” Fincher v. Bergeron, 193 Ga. App. 256, 258 (1) (387 SE2d 371).

The testimony here clearly showed that appellee wanted to purchase the property only if the small house could be rented to pay for finishing the larger house, and that both appellant and Bonnie M. Garrett knew this. Prior to the sale, appellant showed appellee the blue house, which was then carpeted, furnished and occupied by tenants, and agreed to include all the furniture and appliances in the purchase price. After appellee was forced to evict her tenants because the building code violations required the house to be rebuilt or demolished, she told both appellant and Gary L. Lemonds that she wanted to rescind the contract and have her down payment returned. Questions of reliance on an alleged fraudulent misrepresentation in rescission cases must be determined as a question of fact by the jury. Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 885 (2) (354 SE2d 210). The evidence was sufficient for the jury to conclude that appellant had “passively concealed” the defective condition of the prospective rental property so as to permit appellee to rescind the sales contract.

2. Appellant further asserts that appellee made no offer to restore the property upon discovery of the alleged fraud as required by OCGA § 13-4-60. “In order to rescind a contract and sue for restitution, a plaintiff must first restore or make a bona fide effort to restore to the other party whatever benefits he has received from the transaction. [Cits.]” Graham v. Cook, 179 Ga. App. 603, 604 (1) (347 SE2d 623). “ Tf a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.’ [Cit.]” Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 142 (384 SE2d 235). However, this rule “ ‘is one of justice and equity . . . and must be reasonably construed and applied. The object of the rule is theoretically to place the parties in statu quo; but the rule is equitable, not technical, and does not require more than that such restoration be made as is reasonably possible and such as the merits of the case demand.’ [Emphasis in opinion.] [Cit.]” International Software &c. v. Atlanta Pressure Treated Lbr. Co., 194 Ga. App. 441, 442 (390 SE2d 659).

Since “the rescission statute and the cases [cit.] do not require actual restoration but only a tender . . . Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 23 (2), 24 (363 SE2d 265), we conclude that appellee exhibited adequate compliance with the tender rule as “reasonably construed and applied.” See Roller-Ice v. Skating Clubs of Ga., supra. She testified at trial that she asked appellant to “rescind the deal” and return her money because the property was of no use to her unless she could rent it. She explained that what “to rescind the deal” meant to her was “to give me my money back and tear up the contract”; and that the property would go back to appellant. Thus, the offer as expressed was intended to restore the parties to the status quo. International Software &c. v. Atlanta Pressure Treated Lbr. Co., supra. The jury was authorized to find that a rescission occurred, and the trial court did not err in denying appellant’s motion for directed verdict. Potomac Leasing Co. v. Thrasher, supra; Stolle Corp. v. McMahon, 195 Ga. App. 270, 272 (3) (393 SE2d 52).

3. It follows that the trial court correctly gave the jury appellee’s requested charge quoting the provisions of OCGA § 13-4-60 over appellant’s objection.

4. Appellant contends the trial court erred in refusing to reduce the verdict by $3,500 to reflect the amount paid to appellee by the Lemonds defendants in consideration of their dismissal. Appellant points out that the jury did not know of the settlement agreement and argues that the trial court’s failure to reform the verdict was contrary to the jury’s “obvious” intent to return only the amount plaintiff paid out at closing.

“[A] person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” OCGA § 1-3-7. In the case sub judice, the order dismissing the Lemonds defendants is signed by appellant’s attorney and appellant agreed therein “not to use the [$3,500] payment or dismissal as a defense against any liability in this action or as a defense against any judgment rendered in this case.” This agreement resulted in a waiver of any right appellant may have had in using the $3,500 settlement amount to reform the verdict.

Decided September 12, 1991

Reconsideration denied September 25, 1991

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

William L. Horton, Michael R. Jones, Sr., for appellee.

Bonnie Garrett, pro se.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0981.
    KELLEY v. DAUGHERTY.
    (410 SE2d 759)
   McMurray, Presiding Judge.

Plaintiff filed a dispossessory action against defendant seeking possession of certain leased premises and past due rent. Defendant answered and counterclaimed. He alleged he was no longer a tenant of plaintiff because he exercised an option to purchase the property.

Plaintiff moved for a writ of possession which the trial court granted on March 1, 1990, on the ground that defendant did not pay any rent into the registry of the court. Following a motion for rehearing by plaintiff and a motion to set aside by defendant, the trial court determined that the order awarding the writ of possession “was properly supported by the evidence.” Accordingly, on April 11, 1990, the trial court ordered defendant to remove his personal belongings from the premises.

On April 23, 1990, the trial court certified its April 11, 1990, ruling for immediate review. We granted defendant’s application for an interlocutory appeal. Held:

1. Plaintiff moves to dismiss the appeal on the ground that defendant failed to obtain a certificate of immediate review within ten days of the order entered on April 11, 1990. The motion is denied. The tenth day following the entry of the April 11, 1990, order was April 21, 1990, a Saturday. Accordingly, defendant had until April 23, 1990, the following Monday, to obtain a certificate of immediate review. OCGA § 9-11-6 (a).

2. The trial court did not determine the amount of rent due and it did not order defendant to pay rent into the registry of the court. Inasmuch as the amount of rent due was (and remains) in controversy (defendant takes the position that no rent is due), the trial court should have determined the amount of rent due and ordered defendant to pay such rent before issuing a writ of possession for nonpayment of rent. OCGA §§ 44-7-53 (b) and 44-7-54. See generally Mitchell v. Excelsior Sales & Imports, 243 Ga. 813, 815 (2) (256 SE2d 785); Diplomat Restaurant v. Anthony, 180 Ga. App. 431 (1) (349 SE2d 284).

Decided September 3, 1991

Reconsideration denied September 25, 1991.

James P. Brown, Jr., for appellant.

Edward G. Renehan, for appellee.

The trial court erred in issuing the writ of possession without first determining the amount of rent due and ordering defendant to pay the rent into the registry of the court.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1152.
    THOMAS v. THE STATE.
    (410 SE2d 786)
   McMurray, Presiding Judge.

Defendant was convicted and sentenced for possession of cocaine. He appeals, asserting the trial court erred in denying his motion to suppress evidence and his motion for a mistrial. Held:

1. The following evidence was adduced at the motion to suppress hearing: On August 8, 1990, a Georgia State Patrol trooper began to follow a maroon Mercedes with gold rims because it matched the description of a “lookout” which the trooper noticed at his patrol post. The trooper did not know the source of the “lookout.” He testified, however, that “lookouts” are usually received “from citizens.”

The trooper radioed his post to confirm the identity of the automobile described in the “lookout.” Before he received confirmation on the identity of the automobile, the trooper observed the driver lean forward (as if he were placing something on the floorboard) and the automobile crossed the double yellow line of the highway. Even though the driver immediately brought the automobile under control, the trooper stopped him. The driver emerged from the automobile and met the trooper. The trooper asked to see the driver’s license and proof of insurance.

The driver (the defendant) produced the documents which the trooper requested. He told the trooper that he crossed the centerline of the highway because he noticed the trooper following him and the trooper made him nervous.

At that point, the trooper informed defendant that a “lookout” had been placed on a vehicle which was believed to be transporting drugs. He asked defendant if he would “mind if I searched his vehicle.” Defendant responded “that he didn’t mind. It was okay. He had no problem. He didn’t have anything.”

The trooper walked around to the passenger side of the automobile. He looked at the floorboard to “see what made him reach down or make the motion toward the floorboard” and observed a small plastic bag. The trooper opened the door of the automobile and picked up the bag. It contained a small quantity of rock cocaine.

Defendant contends the search and seizure were unlawful because the trooper stopped defendant on a pretext. We disagree. “ ‘ “(I)n determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” (Cit.)’ Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63). We have no hesitation in concluding that a reasonable officer would have stopped defendant [in view of the “lookout” and] after observing him [cross the centerline of] the interstate highway.” Guerrero v. State, 198 Ga. App. 397 (401 SE2d 749).

Citing State v. Diaz, 191 Ga. App. 830 (383 SE2d 195), defendant also urges us to conclude that defendant did not give the trooper permission to search the automobile. Diaz is inapposite. In Diaz, the trial court found that defendant did not consent to a search of the automobile. In the case sub judice, on the other hand, the trial court found that defendant did consent to a search.

Viewing the totality of the circumstances, including the trooper’s assertion that he told defendant about the “lookout” for an automobile transporting drugs and defendant’s broad response to the trooper’s inquiry regarding a “search” of the automobile, we find the evidence sufficient to support the trial court’s determination that defendant consented to a search of the automobile. See Guerrero v. State, 198 Ga. App. 397, 398, supra.

2. In his second enumeration of error, defendant contends the trial court improperly intimated its opinion as to defendant’s credibility. We cannot accept this contention.

“ ‘Though a judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the trial judge does have the right to propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case. The extent to which the examination conducted by the court shall go is a matter within the court’s discretion.’ Eubanks v. State, 240 Ga. 544, 546 (2) (242 SE2d 41) (1978). See Wilson v. State, 229 Ga. 224 (2) (190 SE2d 78) (1972). There were no expressions or intimations of opinion regarding the evidence in the questions. They were addressed to relevant issues with a view of assisting the jury to ascertain the truth. Parrish v. State, 182 Ga. App. 247, 249 (4) (355 SE2d 682) (1987).” Dixon v. State, 196 Ga. App. 15, 19 (395 SE2d 577). We cannot say the trial court abused its discretion in conducting its examination.

Decided September 10, 1991

Reconsideration denied September 25, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Anne C. Allen, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1173.
    FINE & BLOCK et al. v. EVANS et al.
    (411 SE2d 73)
   McMurray, Presiding Judge.

This is a legal malpractice case predicated upon the defendant attorneys’ negligence on the appellate level, specifically an unexcused delay in obtaining the filing of a transcript which resulted in the dismissal of their client’s appeal from an adverse result in the trial court. Defendants, Fine & Block, a law partnership, and A. J. Block and Gary Goldsmith, individually as members of the law firm of Fine & Block, admitted that their failure to obtain an extension of the time for filing a transcript of the trial in the underlying case was not in accordance with the standard of care normally exercised by attorneys at law under the same or similar circumstances. Based on defendants’ admission, the superior court granted the motion for partial summary judgment of plaintiffs C. Gary Evans and Glen Restaurants, Inc., on the issue of negligence. Thereafter, defendants moved for summary judgment contending that they had not represented plaintiff Evans and that their breach of duty had caused no injury to plaintiffs since the judgment in the underlying lease contract case would not have been reversed had that judgment been appealed to this Court. The superior court denied defendants’ motion for summary judgment and we granted defendants permission to file this interlocutory appeal. Held:

1. “[I]n a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery. Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985); Parten v. Swan, 183 Ga. App. 364, 365 (358 SE2d 906) (1987).” Whitehead v. Cuffie, 185 Ga. App. 351, 352 (364 SE2d 87). In the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to file or perfect an appeal, proximate cause may be established by showing that the appellate court would have reversed and that upon remand to the lower court the client would have obtained a more favorable result. Millhouse v. Wiesenthal, 775 SW2d 626, 627; Chicago Red Top Cab Assn. v. Gaines, 364 NE2d 328, 329; Floyd v. Kosko, 329 SE2d 459, 461; Daugert v. Pappas, 704 P2d 600, 603; Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 FSupp. 371, 372; Better Homes, Inc. v. Rodgers, 195 FSupp. 93, 97.

In the case sub judice, we are particularly concerned with the manner in which the first prong of this test for proximate cause is established. The superior court, citing the dissent in Millhouse v. Wiesenthal, 775 SW2d 626, supra, held that the question of legal malpractice is not a matter of law to be decided on a motion for summary judgment, but a matter to be decided by a trier of fact under proper instructions from the court and with the aid of expert testimony. This conclusion is not correct as to the question of whether an appeal would have been successful.

This court is limited to resolving questions of law rather than fact. Gilman Paper Co. v. James, 235 Ga. 348, 349 (219 SE2d 447); Williams v. Terry, 197 Ga. App. 209, 210 (4) (398 SE2d 239); Ingram v. Peterson, 196 Ga. App. 888, 889 (1) (397 SE2d 141). Consequently, a determination of whether an appeal to this Court would have been successful is a question of law, exclusively within the province of judges, and should have been decided by the superior court in ruling on defendants’ motion for summary judgment. The superior court erred in holding otherwise. See Millhouse v. Wiesenthal, 775 SW2d 626, 628, supra.; Floyd v. Kosko, 329 SE2d 459, 461, supra; Daugert v. Pappas, 704 P2d 600, 603, supra; Cabot, Cabot & Forbes Co. v. Brian, Simon Peragrine, Smith & Redfearn, 568 FSupp. 371, 374, supra.

2. We must address the merits of the hypothetical appeal in order to determine whether the superior court’s error was harmful. In the underlying lease contract case, Building 5 Associates, Ltd., obtained a judgment against defendants’ client, Glen Restaurants, Inc., for rent due under a lease. The judgment was entered by Judge Eldridge following a trial without a jury.

Plaintiffs contend that Judge Eldridge erred in applying the measure of damages stated in Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654, 655, 656 (234 SE2d 119), arguing that Szabo Assoc. was disapproved in Piggly Wiggly Southern v. Eastgate Assoc., Ltd., 195 Ga. App. 10 (392 SE2d 337). However, in Piggly Wiggly South ern, we merely disapproved of certain dicta in Szabo Assoc, concerning what the measure of damages would have been if there had been an anticipatory breach, but did not criticize the measure of damages, taken from Dehco, Inc. v. Greenberg, 105 Ga. App. 236, 238 (2) (124 SE2d 311), which was actually applied in reaching the judgment in Szabo Assoc. In the underlying lease contract case, the breach of the lease was not anticipatory in nature, thus was not within the scope of the disapproved dicta from Szabo Assoc. or the decision in Piggly Wiggly Southern. Judge Eldridge did not err in applying from Szabo Assoc, the measure of damages taken from Dehco, Inc.

Decided September 9, 1991

Reconsideration denied September 25, 1991

Plaintiffs also contend that Judge Eldridge erred in awarding expenses of litigation pursuant to OCGA § 13-6-11 in the underlying lease contract case. While it is only necessary to show the existence of one of the statutory conditions of this section in order to authorize an award of damages for expenses of litigation (Gordon v. Ogden, 154 Ga. App. 641 (2) (269 SE2d 499)), Judge Eldridge found that all three were present in the underlying lease contract case. Such findings by a trial court, sitting as trier of fact, must be upheld if supported by any evidence. In the underlying lease contract case, the award of expenses would have been approved on the basis of at least one of the statutory conditions. For example, the bad faith referred to in OCGA § 13-6-11 is not bad faith in refusing to pay but bad faith in the transaction out of which the cause of action arises. Mallory v. Daniel Lbr. Co., 191 Ga. App. 234, 236 (2) (381 SE2d 406). The finding of Judge Eldridge of bad faith was authorized by evidence that Glen Restaurants, Inc., demanded that the space covered by the lease be vacated and continued to assure Building 5 Associates, Ltd., that it intended to occupy same when it had no intention of doing so. Hirsh v. Goodlett, 196 Ga. App. 127, 128 (2) (395 SE2d 626).

After reviewing the pleadings and transcript of the trial in the underlying lease contract case included in the record of the case on appeal, we conclude that an appeal by Glen Restaurants, Inc., would not have been successful. Consequently, defendants’ negligence in permitting the dismissal of the appeal of the judgment in the underlying lease contract case could not have been the proximate cause of any harm to the plaintiffs in the case sub judice. The superior court should have held accordingly upon consideration of defendants’ motion for summary judgment and the court erred in denying that motion.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.

Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, Adrienne L. Anderson, for appellants.

Walter M. Henritze, Jr., for appellees.


text:
    A91A1180.
    A91A1181.
    TRAVELERS INSURANCE COMPANY v. McNABB et al. McNABB v. GRANNY’S OF ATLANTA, INC. et al.
    (410 SE2d 788)
   Sognier, Chief Judge.

We granted the application of Travelers Insurance Company, the workers’ compensation insurance carrier for Winkler Sign Company, to appeal from the order of the Superior Court of Gwinnett County affirming the State Board of Workers’ Compensation’s award of benefits to Tommy Wayne McNabb. McNabb’s cross appeal is brought contingent upon our reversal of the judgment of the superior court in the main appeal, and challenges that portion of the award which would allow Granny’s of Atlanta, Inc. and its alter ego corporation, Dynamic Development, Inc. (collectively “Granny’s”), a credit for funds it contributed to a settlement paid to McNabb in a tort suit should it become liable to McNabb under the Workers’ Compensation Act as his statutory employer pursuant to OCGA § 34-9-8.

The record reveals that McNabb, an employee of Winkler Sign Company (Winkler), a Tennessee employer, was injured in the course of his employment with Winkler in Gwinnett County, Georgia. Mc-Nabb, who was erecting a sign on premises leased by Granny’s for a restaurant it was building, suffered catastrophic injuries. He applied for workers’ compensation benefits in Tennessee and, pursuant to an order of the Hamilton County, Tennessee, Chancery Court, was awarded medical benefits and the maximum allowable income benefits. Travelers Insurance Company, the carrier assigned by the Tennessee Assigned Risk Plan, had issued to Winkler a policy of workers’ compensation insurance which was in effect at the time of the injury, and it paid the award.

McNabb subsequently filed a third-party tort action in Georgia against various defendants, including Granny’s. A settlement agreement was reached in that action awarding McNabb $360,000, of which Granny’s contributed $60,000. Travelers exercised its right under Tennessee law to be subrogated to McNabb’s claims against the third parties, and recovered $80,000 of the tort settlement from McNabb, which represented reimbursement of the $40,000 in income benefits paid and $40,000 in medical benefits paid to that date by Travelers.

Thereafter, McNabb filed this workers’ compensation claim in Georgia. Travelers conceded its obligation to continue paying medical

benefits to McNabb under the Tennessee award, but contested its liability to cover Winkler, which had been adjudged bankrupt, for income benefits payable under Georgia, rather than Tennessee, law. The ALJ ruled that Travelers was responsible for the payment of Georgia workers’ compensation income benefits to McNabb pursuant to its policy covering Winkler, but was entitled to a credit against the Georgia income benefits due for the amount of income benefits paid under Tennessee law. The Board affirmed the award of the ALJ insofar as it ruled that Travelers was obligated to pay Georgia income benefits, but disallowed the credit to Travelers on the ground that an employer’s right to be subrogated to an employee’s claim against a third party tortfeasor to the extent of the workers’ compensation benefits paid had been repealed by statute in Georgia. See Ga. L. 1972, pp. 3-4 (repealing former Ga. Code Ann. § 114-403). Reasoning that Travelers had recovered all the Tennessee benefits it had paid, and that recovery of those benefits by subrogation was not allowable under the law of this state, the Board ruled that Travelers must be required to pay Georgia income benefits as though, in essence, it had never paid Tennessee benefits. The superior court affirmed the Board’s award, finding there was some evidence to support it.

1. We note initially that no question exists that Georgia had jurisdiction to adjudicate this claim because McNabb performed work in Georgia, Slaten v. Travelers Ins. Co., 197 Ga. 1, 6 (28 SE2d 280) (1943); Standard Acc. Ins. Co. v. Gulledge, 86 Ga. App. 493, 494 (2) (71 SE2d 571) (1952), and Travelers has stipulated to Georgia jurisdiction. Granny’s, however, contends in its briefs, without enumerating it as error, that although the superior court held otherwise, Travelers’ notice of appeal was untimely, thereby depriving this court of jurisdiction over the appeal.

Since a proper and timely notice of appeal is an absolute requirement to confer jurisdiction on this court, see Moncrief v. Tara Apts. Ltd., 162 Ga. App. 695 (293 SE2d 352) (1982), and given that “[r]ule 32 (d) of this court requires us to consider a lack of jurisdiction ‘whenever and however’ the lack of jurisdiction may appear, [cit.]” Gale v. Hayes Microcomputer Prods., 192 Ga. App. 30, 31 (3) (383 SE2d 590) (1989), we have both the duty and the obligation to inquire into our appellate jurisdiction.

OCGA § 34-9-105 (b) provides, in pertinent part, that an appeal from a decision of the board may “be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon [the] record, subject to an assignment of the case for hearing by the court; provided, however, if the [superior] court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court.” In the case sub judice the record shows that although Travelers properly scheduled a hearing on its appeal in the superior court for November 7, 1990, which was within 60 days from the filing of the notice of appeal, ten days’ written notice was not given to the other parties. Consequently, when Travelers alone appeared at the scheduled hearing, the hearing was continued orally by the superior court until December 19,1990, and that rescheduling was memorialized in a written order entered November 14, 1990, after the 60 day limit.

Granny’s argues that both Travelers’ failure to follow the notice provisions of OCGA § 34-9-105 (b) and also the entry after the 60 day limit of the written order rescheduling the hearing resulted in automatic affirmance of the Board’s award under that statute. Therefore, Granny’s asserts, Travelers’ appeal to this court, filed on February 21, 1991, was untimely pursuant to OCGA § 5-6-35 (d), since it was not filed within 30 days of November 10, 1990, the date of the automatic affirmance.

We do not find this contention persuasive. First, the Supreme Court has recently held that failure to follow the statutory ten-day notice procedure will not result in automatic affirmance under OCGA § 34-9-105 (b) where, as here, within the 60 day period, the superior court resets a scheduled hearing for a date outside the 60 days in order to rectify the problem. Felton Pearson Co. v. Nelson, 260 Ga. 513 (397 SE2d 431) (1990). The court reasoned that to rule otherwise “exalts the need for speedy disposition over fair treatment of the parties and the policy of reaching the merits of a controversy.” Id. at 515.

Second, although OCGA § 34-9-105 (b) does require that the appeal filed with the Board and the ten-day notice given to the opposing party be “in writing,” nothing in the statute suggests that this requirement applies to superior court orders continuing hearings. Thus, applying the maxim expressio unis est, exclusio alterius, see generally Department of Banking &c. of Ga. v. Independent Ins. Agents, 158 Ga. App. 556, 559 (281 SE2d 265) (1981), rev’d on other grounds 248 Ga. 787 (285 SE2d 535) (1982), we conclude that OCGA § 34-9-105 (b) does not require that the superior court enter a written order within the 60 day limit to avoid automatic affirmance. Accordingly, as a hearing was scheduled within the 60 day period in this case and was rescheduled by a valid, albeit oral order of the superior court within that time, the statutory requirements were met, and the superior court did not err by finding that the Board’s award was not automatically affirmed by operation of law. Travelers? application for leave to appeal to this court, having been filed within 30 days of the entry of the superior court order affirming the Board’s award, was therefore timely.

2. Regarding the merits of the main appeal, Travelers contends the superior court erred by affirming the Board’s award because there was no evidence to support the ALJ’s finding that the policy issued by Travelers to Winkler provided coverage for benefits under Georgia law. Travelers maintains that the policy language clearly limited the policy to payment of benefits awardable under Tennessee law; that such a policy provision is valid in Tennessee, the site of the contract, and enforceable in Georgia; and that there is no evidence of fraud or deceit by Travelers so as to void this policy limitation. Accordingly, Travelers argues, if McNabb is entitled to Georgia income benefits, then Granny’s, as McNabb’s statutory employer under OCGA § 34-9-8, and its workers’ compensation carrier, Nationwide Insurance Company, are responsible for paying them, and thus Travelers should have been dismissed from the instant Georgia workers’ compensation claim. (We note that Winkler has not appealed its liability, but its principals were never located.) We agree and reverse.

(a) The record clearly demonstrates that the policy in question limited coverage to benefits payable under Tennessee law. The record shows that the policy in question was issued in Tennessee through an independent Tennessee agent via the Tennessee Assigned Risk Pool to a Tennessee employer. An endorsement to the policy dealing with computation of premiums lists only “TN” in the “Table of States” in which the policy is effective. Paragraph I of the body of the policy requires the carrier “[t]o pay promptly when due all compensation and other benefits required of the insured by the workers’] compensation law,” which is defined as the “workers’ compensation law and any occupational disease law of a state designated in Item 3 of the declarations.” Item 3 of the policy’s declarations provides that the workers’ compensation coverage “of this policy applies to the workers’ compensation law and any occupational disease law of each of the following states: TN.” No other state is enumerated. The policy also provides that “this policy, the declarations and all the schedules and endorsements issued to form a part hereof, constitute the entire insurance policy.” Based on this evidence of record, we cannot agree with the ALJ’s conclusion that “[i]n the workers’ compensation policy here, there is no statement manifesting the intention of Travelers to limit coverage solely to the workers’ compensation laws of Tennessee,” as we find no evidence to support that conclusion.

(b) We find this limitation is enforceable in Georgia. It is undisputed that the contract was executed in Tennessee. Tennessee law permits an insurance carrier to limit its liability to the workers’ compensation laws of a given state or states, although this does not exempt the employer from liability in other states in which he is actually conducting operations. See Thomas v. Transport Ins. Co., 532 SW2d 263 (Tenn. 1976). “Georgia follows the doctrine of lex loci contractus, [cit.]” Dacosta v. Allstate Ins. Co., 188 Ga. App. 10, 11 (372 SE2d 7) (1988), and thus this Tennessee rule applies to the insurance contract at issue because it was made in Tennessee and nothing in the policy indicates it was to be construed as a Georgia contract. See id. We cannot agree with the ALJ that the holdings in Sargent Indus. v. Delta Air Lines, 251 Ga. 91 (303 SE2d 108) (1983) and Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378 (1) (210 SE2d 854) (1974) provide “[h]igher authority” for not applying this doctrine, as those cases were tort claims and thus did not involve the doctrine of lex loci contractus, but dealt with the analogous — but not identical — doctrine of lex loci delictus. “The leading Georgia case explanatory of the law of lex loci contractus is Trustees of Williams Hospital v. Nisbet, 189 Ga. 807 (7 SE2d 737) [(1940)] where our court said . . . : ‘Where a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws. (Cits.)’ ” Mathews v. Greiner, 130 Ga. App. 817, 819 (204 SE2d 749) (1974).

The only exception to enforcement of a rule of foreign law is where the result will violate the public policy of this state. Terry v. Mays, 161 Ga. App. 328, 329 (291 SE2d 44) (1982). However, “ ‘[enforcement of a contract or a contract provision which is valid by the law governing the contract will not be denied on the ground of public policy, unless a “strong case” for such action is presented; mere dissimilarity of law is not sufficient for application of the public policy doctrine. . . .’ [Cit.]” Id.

We do not agree with the ALJ that the public policy of this state would be frustrated if Travelers is not found liable for Georgia coverage beyond its policy limitation. First, such a result would not frustrate the purposes of the Act. Although Winkler is insolvent and its principals were not found by any of the parties to this action, the dismissal of Travelers would not result in an uncompensated claimant because Granny’s was found to be McNabb’s statutory employer pursuant to OCGA § 34-9-8. See Division 3, infra.

Second, such a limitation is consonant with general public policy in Georgia. We have found nothing in the Georgia Workers’ Compensation Act, OCGA § 34-9-1 et seq., or in the case law based thereon specifically prohibiting under Georgia law the type of limitation allowed in Tennessee. Of course, an employer is liable for whatever benefits are awarded under Georgia law if the employer is subject to the Georgia Act. However, the coverage provided under a particular policy, which is nothing more than a contract between the employer and the insurance carrier, is another matter. “The ‘freedom of individuals to contract’ is part of the basic liberties enjoyed by the citizens of this state and should not be interfered with in the absence of clear necessity.” National Consultants v. Burt, 186 Ga. App. 27, 32 (366 SE2d 344) (1988). It is well established that the Workers’ Compensation Act “does not impair the contractual relations fixed in the policy of insurance between the insurance carrier and the employer. It has the effect only of placing upon the insurance carrier an estoppel to plead as a defense that the employer is not subject to the act.” Maryland Cas. Co. v. Sanders, 49 Ga. App. 600, 601 (5) (176 SE 104) (1934), rev’d on other grounds 182 Ga. 594 (186 SE 693) (1936).

Third, it has long been held that Georgia workers’ compensation law condones limitations which exclude certain of the employer’s activities from coverage under a particular policy even where the Act requires coverage for the excluded activities. See, e.g., Hardware Mut. Cas. Co. v. Collier, 69 Ga. App. 235, 239-242 (1) (25 SE2d 136) (1943) (carrier not estopped to show that its policy did not cover a business which was acquired subsequent to the issuance of its policy, déspite the lack of coverage for that business); Gulledge, supra (one of two insurers held not liable for coverage because its policy limited coverage to certain enumerated projects); Hanover Ins. Co. v. Sharpe, 148 Ga. App. 195, 199-200 (2) (250 SE2d 815) (1978) (employer may insure different operations of its business separately with different insurance companies; insufficient evidence supporting Board’s finding of joint liability of two carriers for particular injury). Indeed, OCGA § 34-9-121 provides that “[n]othing in this Code section shall be construed to require an employer to place his entire insurance in a single insurance carrier.” Thus, given the circumstances present here, we find that under Georgia law the clear limitation in the policy to Tennessee benefits does not violate the public policy of this state and would be enforced.

(c) We do not agree with the ALJ’s suggestion that fraud by Travelers should operate to void any policy limitation, as we find no evidence in this record showing fraud and deceit on the part of Travelers, as found by the ALJ. The ALJ based his conclusion that fraud existed primarily on the deposition testimony of Donald Patterson, commercial lines underwriter for Travelers, which the ALJ found was “vague, equivocal, and contradictory.” The majority of Patterson’s testimony, however, concerned the reason for Travelers’ cancellation of Winkler’s policy, which occurred after it accepted liability for coverage of McNabb’s injury, and thus was immaterial to the claim sub judice. After careful review, we do not find Patterson’s testimony, either as to the cancellation or in any other manner, suggests fraud by Travelers.

The ALJ’s other stated bases for his finding of fraud include Travelers’ submission of only a “copy” of the policy, rather than the original, as evidence of the intention of the parties to limit coverage; its failure to comply with the claimant’s notice to produce certain records; the bankruptcy of Winkler; and the nonavailability for deposition by the claimant of “Mr. King, Winkler’s representative in coverage contract negotiations.” As to the copy of the policy, the “original” was in the possession or control of Winkler, not Travelers, and the record shows that none of the parties to this claim was able to locate Winkler’s principals despite extensive effort. Regarding Travelers’ failure to comply with the notice to produce documents, Patterson testified at deposition that he had produced all requested documents in Travelers’ custody and control. Patterson also testified that the company’s policy was to retain records for three years after coverage ceases, and that because more than three years had elapsed since its coverage of Winkler ceased, some records had been purged from the files in routine fashion. We find nothing in that testimony to suggest fraud. Finally, nothing in the record indicates that either the bankruptcy of Winkler or the nonavailability of King was caused by Travelers.

Accordingly, we hold that the superior court erred when it affirmed that portion of the award of the Board holding Travelers liable for coverage under the Georgia Act. Travelers’ motion to be dismissed from the Georgia claim should have been granted.

3. Because we have reversed the judgment in the main appeal, we must address McNabb’s cross appeal concerning the liability of Granny’s as his statutory employer.

OCGA § 34-9-8 (a) provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” It is uncontroverted that Granny’s was acting as general contractor in the construction of its restaurant, engaging individual subcontractors and independent contractors, including Winkler, to complete particular phases of the construction, and accordingly would be liable under the statute should Winkler, its subcontractor, prove unable to pay the award. The ALJ so found, and Granny’s does not enumerate that finding as error. The ALJ also found, however, that should Travelers prevail on this appeal and be dismissed from the action, Granny’s, as McNabb’s statutory employer, should be allowed to credit the $60,000 it paid towards the tort claim settlement against its liability for Georgia workers’ compensation benefits. Mc-Nabb contends the superior court erred by affirming that portion of the award of the Board allowing that credit. We agree.

The ALJ allowed the credit on the theory that even if Granny’s were ultimately held liable as McNabb’s statutory employer, it should not be penalized for contributing to the tort settlement made at a time when it did not occupy the position of statutory employer be-

cause Winkler, McNabb’s immediate employer, had coverage under Tennessee law through its policy issued by Travelers. It is true, as argued by Granny’s, that the purpose of OCGA § 34-9-8 is to encourage “the statutory employer to require subcontractors to carry workers’ compensation insurance[, and t]he fact that the statutory employer [imposes such a requirement as] intended by the legislature should not result in a penalty on the statutory employer [in the form of tort liability].” Wright Assoc. v. Rieder, 247 Ga. 496, 499-500 (1) (277 SE2d 41) (1981) (construing former Code Ann. § 114-112). However, in this case, contrary to its contention, Granny’s, as the statutory employer, did not react as the legislature intended, as it did not ascertain or ensure that Winkler had workers’ compensation coverage in Georgia. Consequéntly, Granny’s knew or should have known of its potential liability as a statutory employer and its concomitant tort immunity. The fact that at the time it entered into the tort settlement it had not been held to be liable for benefits as the statutory employer is immaterial. “[E]ven though the principal contractor ha[s] not actually paid workers’ compensation benefits, it [is] still a statutory employer of the subcontractor’s employee under OCGA § 34-9-8 . . . with a potential liability for workers’ compensation payments. Therefore, . . . the principal contractor still enjoy[s] tort immunity.” Long v. Marvin M. Black Co., 250 Ga. 621, 622 (300 SE2d 150) (1983).

Since Granny’s enjoyed tort immunity at the time it contributed to the tort settlement, that payment constituted a voluntary payment. “Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property.” OCGA § 13-1-13. “ ‘Money paid through mistake of law, with full knowledge of all the facts, can not be recovered back, unless it is made to appear that the person to whom it was paid can not in good conscience retain it.’ . . . [Cit.]” (Emphasis omitted.) Graves v. Carter, 208 Ga. 5, 6 (2) (64 SE2d 450) (1951). Given that allowing Granny’s a credit for its voluntary payment would result in recovery of a voluntary payment, and in view of McNabb’s need for lifetime maintenance because of the catastrophic nature of his compensable injuries as well as the overall purpose of the workers’ compensation law, we hold that Granny’s is not entitled to such credit.

Judgment reversed in both cases.

McMurray, P. J., concurs. Andrews, J., concurs in Case No. A91A1180 and concurs in the judgment only in Case No. A91A1181.

Decided September 10, 1991

Reconsideration denied September 25, 1991

Irwin, Bladen, Baker & Russell, Thomas C. MacDiarmid, for Travelers.

Harriss, Hartman, Townley & Wharton, Robert A. Wharton, Jr., James A. Secord, for McNabb.

Wilson, Strickland & Benson, N. Sandy Epstein, Anne W. Lewis, for Granny’s of Atlanta and Nationwide Insurance.


text:
    A91A1239.
    BRYANT v. THE STATE.
    (410 SE2d 778)
   McMurray, Presiding Judge.

Defendant was charged via accusation with driving under the influence of alcohol. The case was tried before a jury, defendant was found guilty and this appeal followed the denial of his motion for new trial. Held:

In his sole enumeration, defendant contends the trial court erred in denying his motion for continuance after it was discovered that members of the jury panel were exposed to an anti-drunk driving display at the entrance lobby of the courthouse. Defendant argues the display tainted prospective jurors and deprived him of a fair trial under the Sixth Amendment of the United States Constitution and under Article I, Section I, Paragraph XI of the Constitution of the State of Georgia.

During voir dire, it was discovered that six prospective jurors viewed an anti-drunk driving display set up in a courthouse entrance lobby on the day of defendant’s trial. According to defense counsel, the poster was displayed by the Floyd County Sheriff’s Office at “the nearest door to the jurors’ parking lot and the nearest route into the courthouse.” Defense counsel stated that the display was “situated directly in front of the door opened to its full width so that one walking in that door could not help but see it. ...” Defense counsel further stated that “[t]he poster itself is made up of three panels that are connected together and fold together [and, when] unfolded, it stands on its own on the floor. ...”

The record reveals that the display is over three feet tall and eight feet wide, includes 49 large photographs of alleged driving under the influence victims and is headed with the bold faced inscription, “These Are Not Just Numbers But Names, Faces, Hopes, and Dreams That Are Gone Forever Because of Drinking Drivers.” (The photographs portray 49 persons, mostly young adults and children.) There is a bold “red” logo below the heading entitled, “M A D D” and below the logo is the inscription, “Mothers Against Drunk Drivers.” There are 49 photographs on the display and the photographs are distributed around the bold inscription, “THESE FACES REPRESENT THE NUMBER OF VICTIMS KILLED IN DUI CRASHES ON GEORGIA’S HIGHWAYS EVERY 28 DAYS.” The lower left portion of the display includes the inscription, “If you or your loved one are a victim of a DUI crash, and you wish to share a picture in remembrance on our state and national picture board, please send pictures to: MADD, Georgia Victim Assistance Services, 7373 Hodgson Memorial Drive, Building 4, Suite A, Savannah, Georgia 31406.”

The right to speak, write and publish sentiments on any subject “is essential to the preservation of a free society; but its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution.” Atlanta Newspapers v. State of Ga., 216 Ga. 399, 403 (2) (116 SE2d 580). In the case sub judice, we find defendant’s right to a fair and impartial jury more essential to the administration of justice than any group or individual’s right to express anti-drunk driving sentiments in the entrance lobby of a courthouse on the day of jury trials. Further, we recognize that the eight feet by three feet anti-drunk driving display may inspire emotional sentiments against persons accused of driving while under the influence of alcohol. It therefore follows that the display endangered defendant’s right to a fair and impartial jury as six impaneled jurors affirmed that they encountered the display on the day of trial and remembered its contents. However, we cannot say that exposure to the anti-drunk driving display alone deprived defendant of a fair trial.

“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if a juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. [Cits.]” Irvin v. Dowd, 366 U. S. 717, 723 (81 SC 1639, 6 LE2d 751). In the case sub judice, the six empaneled jurors who were exposed to the anti-drunk driving poster were asked by defense counsel, “can you dismiss that poster from your minds and say to me with absolute certainty that it has no bearing on your mind[s] and would have no bearing on this case?” The prospective jurors responded affirmatively. Under these circumstances, we find no abuse of discretion in the trial court’s denial of defendant’s motion for continuance. Gaines v. State, 142 Ga. App. 181, 182 (1), 183 (235 SE2d 640).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided September 9, 1991

Reconsideration denied September 25, 1991

Kenneth C. Fuller, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.


text:
    A91A1256.
    WARD v. PHOENIX MUTUAL LIFE INSURANCE COMPANY et al.
    (410 SE2d 795)
   McMurray, Presiding Judge.

This is an interpleader action involving the proceeds of an insurance policy issued by the interpleader to its insured, William Payne. Defendant Della Eunice Ward, Payne’s former wife, was designated as the beneficiary of the policy by Payne. She was the original and only designated beneficiary. At the time of the original designation, Payne and Ward were husband and wife.

Payne and Ward were divorced in 1987. They entered into a property settlement agreement in which they agreed that neither party would make any claim against the real or personal property of the other.

Payne died on August 19, 1988. He never changed the designated beneficiary of the policy.

Ward claimed the proceeds of the policy as the designated beneficiary. Defendant John Payne, son of the insured, claimed the proceeds too. He asserted that Payne intended to make him the beneficiary of the insurance policy and that, at any rate, Ward relinquished her claim to the proceeds when she executed the property settlement agreement.

To resolve the conflicting claims, the insurance company inter-pleaded the insurance proceeds. Following discovery, Ward moved for summary judgment. The superior court denied the motion but certified its ruling for immediate review. This Court granted an interlocutory appeal. Held:

1. As the designated beneficiary of the insurance policy, Ward is entitled to receive the insurance proceeds. The property settlement agreement has no bearing upon Ward’s right to receive the insurance proceeds. Kruse v. Todd, 260 Ga. 63, 66 (1) (389 SE2d 488); Maxwell v. Britt, 171 Ga. App. 230 (1) (319 SE2d 88).

2. Payne, the insured, never took the steps necessary to change the beneficiary designation. The mere fact that the insured manifested a desire to take such steps is of no consequence. Maxwell v. Britt, 171 Ga. App. 230, 231 (2), supra.

Decided September 10, 1991

Reconsideration denied September 25, 1991.

Johnny W. Warren, for appellant.

Green & Tribble, William L. Tribble, for Payne.

The superior court erred in denying defendant Ward’s motion for summary judgment.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.