text:
    A89A0513.
    McCRARY v. DEPARTMENT OF HUMAN RESOURCES et al.
    (381 SE2d 438)
   Sognier, Judge.

Jimmy Lee McCrary appeals from the trial court’s grant of partial summary judgment in favor of the Georgia Department of Human Resources et al., on the issue of McCrary’s duty to support his minor children. However, “ ‘[u]nder the provisions of OCGA § 5-6-35 (a) (2), appeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases must be taken by application. Matters of child support fall into the category of “other domestic relations” and are therefore within the purview of OCGA § 5-6-35 (a) (2). (Cit.)’ [Cit.]” Graves v. Graves, 186 Ga. App. 140, 142 (366 SE2d 809) (1988). OCGA § 5-6-35 (a) (2) applies to this appeal even though the underlying judgment involved the grant of partial summary judgment under OCGA § 9-11-56. See Citizens &c. Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139) (1980).

Decided April 10, 1989.

George A. Pennebaker, for appellant.

William A. Foster III, District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellees.

Appeal dismissed.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A0082.
    KINCEY v. THE STATE.
    (381 SE2d 439)
   Pope, Judge.

Defendant Joseph Kincey appeals from his conviction and sentence for the offense of burglary. Held:

1. Defendant first contends that the State used its peremptory strikes in a racially discriminatory manner in violation of the mandate of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Defendant, who is black, was tried by an all-white jury after the State used three of its peremptory challenges to strike three blacks from the venire, which was composed of thirty-nine whites and three blacks. The record shows that two of the jurors were struck because they had close relatives who had been convicted of committing felonious crimes and the third juror was struck because he had recently served on a jury which had returned a not guilty verdict in a criminal case in which the prosecutor believed sufficient evidence was presented to warrant a finding of guilty. The prosecutor further stated that he tried to keep a record of all jurors who returned not guilty verdicts and that in all cases “we do not accept that juror again regardless of race.” The trial court ruled that the strikes were “not racially motivated or based strictly upon the issue of race,” and denied defendant’s Batson challenge.

“The proscription set forth in Batson, supra, is that a prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises solely from the jurors’ race. Mincey v. State, 257 Ga. 500, 502 (360 SE2d 578) [(1987)]. . . . The defendant can establish a prima facie case of purposeful discrimination in selection of the petit jury on evidence that the prosecutor struck all black members of the venire. Durham v. State, 185 Ga. App. 163, 166 (363 SE2d 607) [(1987)]. Once the [defendant] makes this prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging black jurors. Barton v. State, 184 Ga. App. 258, 259 (361 SE2d 250) [(1987)]. In this appeal, the prosecution established a racially-neutral basis for challenging each juror. . . . Once the prosecution establishes a neutral explanation related to the particular case to be tried, the trial court then will have the duty to determine if the defendant has established purposeful discrimination. Barton v. State, supra, 259. The trial court’s findings are, of course, entitled to great deference, Batson, supra . . . and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327 (357 SE2d 792) [(1987)]; accord Durham v. State, supra; McCormick v. State, 184 Ga. App. 687, 688-689 (362 SE2d 472) [(1987)]; Killens v. State, 184 Ga. App. 717, 720 (362 SE2d 425) [(1987)]; Evans v. State, 183 Ga. App. 436, 440 (359 SE2d 174) [(1987)]. Because the U. S. Supreme Court has cautioned us that the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference. Hillman v. State, 182 Ga. App. 47, 48 (354 SE2d 673) [(1987)].” (Punctuation omitted.) Glanton v. State, 189 Ga. App. 505, 506-507 (376 SE2d 386) (1988). See also Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988).

Applying this standard, we agree that the trial court correctly found that the State presented legitimate reasons for exercising its peremptory challenges, and that defendant’s prima facie case of racial discrimination was rebutted. Consequently, the trial court’s denial of defendant’s Batson motion was not erroneous and must be affirmed.

2. Defendant also contends that the trial court erred in admitting into evidence his in-custody statement, in which he admitted he broke into the victims’ house and stole a purse sitting on a table near where he entered the premises. At the Jackson-Denno hearing conducted prior to the admission of defendant’s statement, the officer who conducted the in-custody interview of the defendant testified that he advised defendant of his rights, that defendant executed a waiver of counsel form, that defendant indicated he was willing to talk to the officer without an attorney present and that defendant admitted he committed the crime with which he was charged. The officer further testified that defendant initially indicated that he would provide a written as well as verbal admission of guilt but he later advised the officer that he was no longer willing to make a written statement. Defendant testified that he requested an attorney and that he refused to make a statement concerning his guilt or innocence of the crime charged.

“ ‘In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard.’ . . . Howard v. State, 180 Ga. App. 817 (1) (350 SE2d 825) (1986). ‘Although not without conflict, the evidence produced at that hearing did support the trial court’s finding that (defendant’s) statement had been freely and voluntarily made. “A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. (Cit.)” (Cits.) The trial court did not err in admitting [defendant’s] in-custody statement into evidence.’ Hart v. State, 185 Ga. App. 141, 142 (363 SE2d 599) (1987). Accord Gaines v. State, 179 Ga. App. 623 (1) (347 SE2d 673) (1986); see also Sanders v. State, 182 Ga. App. 581 (1) (356 SE2d 537) (1987); Grayer v. State, 181 Ga. App. 845 (4) (354 SE2d 191) (1987); Newsome v. State, 180 Ga. App. 243 (3) (348 SE2d 759) (1986); Jones v. State, 178 Ga. App. 15 (2) (342 SE2d 5) (1986).” Johnson v. State, 188 Ga. App. 499, 500 (373 SE2d 284) (1988).

Decided April 11, 1989.

James A. Yancey, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

3. Defendant also challenges the sufficiency of the evidence. Viewed so as to support the verdict, we find the evidence adduced at trial was sufficient to authorize a rational trier of fact to find defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Nebbitt v. State, 187 Ga. App. 265 (1) (370 SE2d 1) (1988); Spivey v. State, 186 Ga. App. 236 (7) (366 SE2d 838) (1988). Consequently, this enumeration affords no basis for reversal.

4. We have examined defendant’s remaining enumeration and find it to be without merit.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0174.
    GRIFFIN v. THE STATE.
    (381 SE2d 562)
   McMurray, Presiding Judge.

Defendant Griffin appeals his conviction of the offenses of driving under the influence of alcohol and “failure to maintain lane.” (OCGA § 40-6-48 (1).) Held:

1. Defendant enumerates as error the denial of his motion for directed verdict of acquittal. The State’s evidence is that defendant was driving on an interstate highway at 5:15 a.m. The defendant’s vehicle was in the far right lane before it crossed over the line on the shoulder of the road and then crossed back across the lane and drove straddling the lane line between the center lane and right lane. At that point defendant was pulled over. When defendant got out of his car he smelled strongly of alcohol and needed support from his car to stand up. Defendant’s face was flushed, his eye watering and his speech hesitant. After defendant failed a number of field sobriety tests he was placed under arrest. The result of an intoximeter test was .11 grams percent of alcohol in defendant’s blood. There was sufficient evidence presented to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. 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 of acquittal. Humphrey v. State, 252 Ga. 525, 526 (1) (314 SE2d 436); Cameron v. State, 187 Ga. App. 562 (3) (370 SE2d 812).

2. Defendant contends the trial court erred in permitting the State to elicit testimony regarding defendant’s response to the arresting officer’s inquiry as to whether “he’d been drinking.” Defendant argues that his response was not admissible because he was not advised of his Miranda rights. (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694.)

The statement in question was made before defendant was placed under arrest. A motorist detained pursuant to a roadside questioning at a routine stop is not in a custodial situation triggering the Miranda warning. Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227). “Since defendant was not taken into custody for Miranda purposes until the officer arrested him shortly after he made the statements complained of here, his statements prior to the arrest were admissible against him.” Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853).

3. Defendant enumerates as error the trial court’s charge on intent, arguing that the charge given was burden-shifting and authorized the jury to draw conclusions without supporting evidence. The portion of the charge on intent of which defendant complains states that: “[Intent] may be inferred from the proven circumstances or by acts and conduct, or it may be, in your discretion, inferred when it is the natural and necessary consequences of the act.” While this language is somewhat similar to that disapproved in Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344), the language charged in the case sub judice is not subject to the impermissible interpretations disapproved in Francis. The language at issue authorizes a permissive inference “which allows but does not require the jury to infer an ultimate fact from proof of a basic fact. It places no burden on the defendant; it merely advises and guides the jury as to what conclusions they might draw from circumstantial evidence presented at trial. A defendant challenging a permissive presumption or inference must demonstrate its invalidity as it applies to him. Williamson v. State, 248 Ga. 47, 54 (281 SE2d 512) (1981).

“[Defendant] has failed to demonstrate that the charge given in this case violated his due process rights. The basic facts and the facts that may be inferred from those basic facts are rationally connected, and the latter are more likely than not to flow from the former. See County Court of Ulster County, N. Y. v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777) (1979).” Pollard v. State, 249 Ga. 21, 22 (2) (287 SE2d 189).

Decided April 11, 1989.

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

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

Defendant’s reliance upon Powell v. State, 187 Ga. App. 878, 879 (4), 880 (372 SE2d 234) is misplaced. “The law does not draw ‘conclusions’ as to intent or other factual matters. Factual decisions and conclusions are matters that belong exclusively to the province of the jury.” Powell v. State, 187 Ga. App. 878, 879 (4), 880, supra. Unlike the court’s charge in Powell, the charge in the case sub judice places factual decisions and conclusions in the hands of the jury.

The charge at issue in no way relieved the State of its burden of proof. Nor did this charge authorize the jury to reach a factual conclusion without supporting evidence, the charge permitting inferences from “proven circumstances.” We find no error. Pollard v. State, 249 Ga. 21, 22 (2), supra. See also Williams v. Kemp, 255 Ga. 380 (338 SE2d 669).

4. Defendant enumerates as error the denial of his motion for mistrial predicated upon the State’s statement during argument to the jury: “But ask yourself have you heard any testimony from those people, from his friends.” While defendant’s brief seems to argue that this statement was an impermissible comment on defendant’s failure to testify, we note that defendant did testify at trial. Nor do we view the State’s argument as an appeal to the passions and prejudices of the jury. We view the remarks to be a permissible comment on defendant’s failure to adduce evidence rebutting the State’s evidence. Stephens v. State, 185 Ga. App. 825, 826 (3) (366 SE2d 211); Gardner v. State, 172 Ga. App. 677, 681 (10) (324 SE2d 535).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0630.
    W. M. GRIFFIN FAMILY FARMS, INC. v. NORTHRUP KING & COMPANY et al.
    (381 SE2d 441)
   McMurray, Presiding Judge.

Plaintiff W. M. Griffin Family Farms, Inc., filed this action against several businesses for damages arising from its purchase and use of allegedly inferior quality cottonseed. Allegations regarding defendant Coastal Plains Farmers Cooperative, Inc. (“Coastal Plains”) were contained in two of the eleven counts of plaintiffs original complaint. Count 3 of plaintiff’s original complaint sought damages from Coastal Plains and other defendants for breach of statutory warranties under the Georgia Seed Law, OCGA § 2-11-20 et seq. In Count 11 of the original complaint plaintiff alleged that Coastal Plains and other defendants negligently inspected and tested or failed to inspect or test the cottonseed sold to plaintiff.

On October 20, 1988, a pre-trial conference was held. At this conference, plaintiff announced its intent to withdraw and abandon several counts of its complaint asserting negligence claims, including Count 11. Subsequent to the conference, on October 25,1988, Coastal Plains filed a brief in which it contends Count 3 of plaintiff’s complaint asserted a claim based on negligence per se and thus was also among those withdrawn at the conference. In its brief, Coastal Plains also argues that plaintiffs action against it should be dismissed for failure to state a claim upon which relief can be granted. While it is not clear from the conference transcript that Coastal Plains’ assertion that Count 3 had been withdrawn and abandoned is correct, we will assume so for the purposes of this opinion.

During the pre-trial conference the superior court ruled that the issues were “jelled,” and that no additional claims could be asserted. However, no pre-trial order has been signed in the case sub judice.

On October 25, 1988, plaintiff filed its amended complaint which asserted several new claims against Coastal Plains. The following day, October 26, 1988, the superior court’s order dated October 24, 1988, and dismissing plaintiff’s complaint as to Coastal Plains was filed. Thereafter, we granted plaintiffs application for interlocutory appeal to review the superior court’s dismissal of plaintiff’s action against Coastal Plains. Held:

The superior court lacked authority to close the pleading prior to the entry of a signed pre-trial order. OCGA § 9-11-15 (a) allows amendment as a matter of right before entry of a pre-trial order or prior to the commencement of trial. Jackson v. Paces Ferry Dodge, 183 Ga. App. 502, 503 (1) (359 SE2d 412). Thus, in reviewing the superior court’s dismissal of plaintiffs action against Coastal Plains we consider the issues raised by plaintiffs amended complaint.

“A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. Thompson v. Frost, 125 Ga. App. 753, 755 (1) (188 SE2d 905) (1972); see News-Press Pub. Co. v. Kalle, 173 Ga. App. 411, 412 (2) (326 SE2d 582) (1985).” Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383). Considering plaintiffs amended complaint in the light of this test, dismissal of plaintiffs action against Coastal Plains was clearly error.

Decided April 11, 1989.

A. D. Denton, for appellant.

Alexander & Vann, Frank T. Holt, Young, Young & Clyatt, James B. Thagard, F. Thomas Young, for appellees.

We do not find the case sub judice to be affected by the decision in Jones v. Burton, 238 Ga. 394 (233 SE2d 367), which held that “once a judgment in a civil case has been announced though not formally entered, the attempted filing of a voluntary dismissal thereafter is not permissible and does mot effect a dismissal.” Id at 395. In the case sub judice, there was no indication of an announcement of the superior court’s intended ruling or of any knowledge by plaintiff of the court’s decision prior to the filing of the dismissal order on October 26, 1988. The Jones rationale is not applicable under the facts and circumstances of the case sub judice. Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469).

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0734.
    JEFFERSON v. THE STATE.
    (381 SE2d 564)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of committing aggravated assault by stabbing the victim “five times” with an object resembling “a sharpened screwdriver.” Tried by a jury, defendant was found guilty and following the imposition of sentence, defendant appeals. Held:

1. Defendant contends the trial court erred in refusing to permit him to testify that he was defending himself at the time of the assault. This contention is wholly without merit. The trial court simply questioned the “relevance” of such testimony since defendant denied that he stabbed the victim. At no point did the trial court rule that defendant could not introduce evidence of self-defense.

2. Error is assigned on the failure of the trial court to charge the jury concerning self-defense. Assuming the evidence was sufficient to support such a charge, we find no error in this regard.

A review of the record demonstrates that defendant neither requested a charge on self-defense nor objected to the failure to give such a charge. “[T]hough present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving or the failure to give instructions to the jury (Ga. L. 1963, pp. 1072, 1078; Code Ann. § 70-207 [OCGA § 5-5-24]) this does not relieve him from the necessity of requesting instructions except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. [Cits.]” Hardin v. State, 141 Ga. App. 115, 116 (2) (232 SE2d 631). Accord Ivie v. State, 151 Ga. App. 496, 500 (5) (260 SE2d 543). Was the failure to charge on self-defense clearly harmful as a matter of law? We think not. Self-defense was not the defendant’s sole defense. In fact, defendant denied stabbing the victim. Thus, it cannot be said that the trial court erred in failing to charge on self-defense in the absence of a request for such a charge. See Jackson v. State, 154 Ga. App. 867, 868 (2) (270 SE2d 76). Compare Nix v. State, 135 Ga. App. 672 (219 SE2d 6).

Decided April 11, 1989.

Gary L. Morris, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    77735, 77736.
    WASHBURN v. SARDI’S RESTAURANTS et al. (two cases).
    (381 SE2d 750)
   Beasley, Judge.

Sardi’s Restaurants, a New York corporation, sued to recover $2,446.25 plus interest and penalties which Washburn was alleged to have converted to his personal use while employed as Sardi’s agent and manager of two subsidiary corporations located in this state. The complaint was amended and, following discovery and a nonjury trial, the court awarded Sardi’s $45,499.89, including damages, interest, and attorney fees and litigation expenses. Washburn appealed from this judgment and two post-trial orders.

1. The answer raised the affirmative defense that Sardi’s had failed to join an indispensable party and lacked the capacity to sue because it had not obtained a certificate of authority to transact business as a foreign corporation in this state as required by OCGA § 14-2-331 (b). Sardi’s corporate activity in this state consisted of its ownership of real estate holdings, which were subsidiary corporations.

OCGA § 14-2-310 (b) (10) provides that a foreign corporation “shall not be considered to be transacting business in this state, for the purpose of qualification under this chapter, solely by reason of carrying on in this state any one or more of the following activities: . . . Owning and controlling a subsidiary corporation incorporated in or transacting business within this state . . .” Since the applicability of OCGA § 14-2-331 (b) is contingent upon whether Sardi’s was transacting business as contemplated by § 14-2-310, and it has been expressly exempted thereby from the registration requirement, it did not need a certificate as authority for filing its lawsuit. See Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69 (1) (354 SE2d 628) (1987); Work Clothes Outlet v. M & S Purchasing, 188 Ga. App. 179 (3) (372 SE2d 509) (1988). The trial court properly denied defendant’s plea in abatement and motions to dismiss the suit on this defense.

2. Washburn asserts that the court erred in denying his motion to dismiss because an action for fraud may not be transferred or assigned to another individual or entity. The evidence showed that on November 6, 1980 Washburn, a licensed real estate broker acting as agent and manager for Sardi’s real estate holdings in Georgia, issued a check on the corporate account purporting to be for the payment of city taxes. He actually deposited these funds into his personal checking account. Sardi’s did not learn that the taxes had not been paid until sometime in 1985.

Sardi’s filed suit in January 1986. The complaint was amended by order of the court in March 1988, upon motion, to change the name of the plaintiff to Sardi’s Restaurant Corporation and to add Allison Apartments, Inc., as a party after Sardi’s became aware that Allison had not been legally liquidated as mistakenly believed. Sardi’s remained in the case because it held the claim for the interest and penalties due when it paid the real estate taxes on the property. Allison was a real party in interest because of the fraud and conversion committed upon it by Washburn. Under OCGA §§ 9-11-20 and 9-11-21, “the failure to name the proper parties is an amendable defect, correctable by the parties or upon the court’s own motion. [Cits.]” Hanson v. Wilson, 257 Ga. 5, 7 (2) (354 SE2d 126) (1987). The trial court was correct.

3. Defendant Washburn enumerates as error the denial of the motion, made at trial, for continuance until he could be present as lead counsel. He contends that, pursuant to USCR 17.1, he had given advance notice by letter that he was scheduled to appear at the same time in two other courts as well, as counsel for two clients, so that in the absence of resolution of the conflicts by the court as provided by USCR 17.2, his own case should have been continued or held until he could appear to represent himself as was his right under Ga. Const. 1983, Art. I, Sec. I, Par. XII.

Defendant’s original counsel moved to withdraw some months prior to trial, stating in the motion that defendant “has represented himself in this action as co-counsel and remains listed as one of the counsel of record.” New counsel entered his appearance “as attorney of record” several weeks later, directing that all future notices and pleadings be sent to him. No mention was made of Washburn as counsel. Plaintiff’s proposed pretrial order lists only the new attorney as defendant’s trial counsel, but defendant’s proposed pretrial order lists both, with the new attorney shown first. This new attorney is the only one who signed that proposed order as submitting it. No written pretrial order was entered by the court, but at trial the court orally consolidated and adopted the two proposed orders after denying a continuance.

The trial court took cognizance of the conflict letter. We do not know its contents or its date, as it is not in the record, so we cannot discern whether it complied with USCR 17.1 or not. Also, the court reporter did not record the oral motion for continuance, despite defendant’s request in his proposed pretrial order that he wanted the case reported. She did record and transcribe the judge’s reference to the cases in which defendant was representing clients in other courts and the judge’s denial of the motion which then followed. Appellant took no steps to prepare a transcript of the unrecorded portion of the motion hearing, “from recollection or otherwise,” as was his responsibility if he wished a fully informed review of this ruling. OCGA § 5-6-41 (c). Nor did he move for any enlargement of what had transpired so as to show the presentation and argument on the motion, as provided in subsections (f) and (g) of that remedial statute.

However, one thing is clear, and that is that defendant was not lead counsel for trial. The record shows that the new counsel who entered the case some months before trial occupied that position. Thus the court did not abuse its discretion in denying a continuance of the trial contrary to OCGA §§ 9-10-155 or 9-10-167; Opatut v. Guest Pond Club, 188 Ga. App. 478, 479 (1) (373 SE2d 372) (1988); Adams v. Hill, 177 Ga. App. 492 (340 SE2d 27) (1986). Nor did the court err in failing to otherwise resolve the conflicting court schedules of attorney Washburn in conformity with USCR 17. Further, by denying the continuance the court did not unconstitutionally bar Wash-burn from representing himself. Compare Cherry v. Coast House, 257 Ga. 403, 405 (3) (359 SE2d 904) (1987).

4. During pretrial discovery Washburn served a notice for Sardi’s to produce all documents covering a ten-to-twelve-year span, including “each and every ledger, journal, cash receipts book, cash disbursements book, general ledger, accounts receivable ledger, taxes payable ledger and each and every other writing showing the receipt and disbursement of funds” of all of Sardi’s Georgia properties. Also sought were all title documents and state and federal tax returns relating to these properties. Sardi’s moved to quash on grounds that the production of these documents would be an undue burden and that they were in any event irrelevant. The court granted the motion but allowed Washburn to seek production of any documents in Sardi’s possession that would show it “conducted any business in the State of Georgia other than the purchase and ownership of two apartment complexes . . . through its ownership of Allison Apartments, Inc. .. .” Washburn complains that this unfairly precluded him from effectuating any discovery concerning his contention that Allison was a shell corporation.

OCGA § 24-10-22 (b) (1) gives the trial court discretion upon timely motion to quash or modify such a subpoena if it is “unreasonable and oppressive.” This standard “is tested by the peculiar facts arising from the subpoena itself and other proper sources. [Cits.]” Aycock v. Household Fin. Co., 142 Ga. App. 207, 210 (3) (b) (235 SE2d 578) (1977). “[N]o court should impose upon the opposite party the onerous task of producing great quantities of records which have no relevancy. The notice should be specific enough in its demands to relate the documents sought to the questions at issue.” Horton v. Huiet, 113 Ga. App. 166, 169 (1) (147 SE2d 669) (1966). The issue in the suit was whether Washburn converted Sardi’s funds to his own use, not what the corporate structure of its various subsidiaries was. Thus the court was authorized to limit production as it did.

5. At the start of the trial plaintiffs’ counsel quoted certain pretrial stipulations made by the parties, including the statement that Washburn was “an agent and fiduciary acting as manager for Sardi’s real estate holding[s]... .” The court ruled that this statement “accurately reflects the stipulation as it existed at the time of the pretrial conference and as adopted by the Court and its order announced at the beginning of this proceeding [and] is accepted as being true by the Court.” No objection was raised, which omission justified denial of Washburn’s motion to dismiss the suit on the ground that he was merely an employee of a corporation which managed the property.

6. The statute of limitation did not run before the suit was filed. As pointed out by Washburn, the gravamen of Sardi’s multi-count complaint was fraud. The perpetration on Sardi’s by Washburn’s purported payment of the 1980 taxes on the property he was managing in Georgia was not uncovered by Sardi’s until after the sale of the property in 1985. “The period of limitation runs from the time of the plaintiff’s discovery of the alleged fraud. OCGA § 9-3-96; [Cits.]” Shapiro v. Southern Can Co., 185 Ga. App. 677, 678 (365 SE2d 518) (1988). See also Sutlive v. Hackney, 164 Ga. App. 740 (297 SE2d 515) (1982). The instant suit was filed in January 1986, within the four-year limitation prescribed by OCGA § 9-3-31.

7. The final enumeration, raised in Case No. 77736, concerns two post-trial orders. They were prompted by Washburn’s pro se motion to supplement the record by adding his affidavit regarding what action he took to resolve the scheduling conflict, and what he did in other courts on the day of the trial in the instant case. He stated in the affidavit that he was lead counsel in the instant case and that he appeared in the court below during the noon recess and called without avail after 5:00 p.m.

The first order denied the motion and recited sua sponte certain facts concerning what transpired when the motion for continuance made by Washburn’s counsel was denied. It referred to the conflict letter and stated that the ground presented for the continuance was that defendant, as attorney of record for certain clients, had cases scheduled elsewhere. The second order recounted what occurred when Washburn made his “announcement” of ready for trial on the day after the case was in fact tried. Although the court in this order also directed that the transcript of this event be excluded, it is in the record, bearing out what the court described in the order, and thus appellant was not harmed by the ordered exclusion.

Appellant relied below on OCGA §§ 5-6-41 (h) and 9-11-43 (b) as authority for inclusion of his affidavit. Neither support his position. As he wrote in the brief below, citing Epps v. State, 168 Ga. App. 79, 80 (308 SE2d 234) (1983), the record may be supplemented to show “what transpired in the trial court.” That is the circumstance covered by OCGA § 5-6-41 (f). Appellant, however, sought by his affidavit to show what transpired elsewhere, and outside of the trial of the case, not what was said when the motion for continuance was made. Neither is the other code section applicable in this context.

“[I]t cannot be said that anything material to the appellant has been omitted from the record on appeal.” Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980). Moreover, the discretion granted the trial court by OCGA § 5-6-41 (f) vests it with “a necessary control over the designation and transmittal of both record and transcript.” Smith v. Top Dollar Stores, 129 Ga. App. 60, 64 (3) (198 SE2d 690) (1973). See also G.E.C. Corp. v. Southern Fabricators, 122 Ga. App. 452 (1) (177 SE2d 497) (1970). The court’s decision in such matters will not be reversed absent a manifest abuse of discretion, which does not appear. Jones v. Spindel, 239 Ga. 68, 70 (2) (235 SE2d 486) (1977).

8. Sardi’s motion for damages as provided by OCGA § 5-6-6, upon plenary consideration, is denied.

Judgments affirmed.

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

Decided March 27, 1989

Rehearings denied April 12, 1989

Thomas L. Washburn III, pro se.

Land, McKnight & Newlin, Stephen A. Land, for appellees.

       It is noted that although he was listed on the proposed pretrial order as a witness, no objection to the trial commencing without him in this capacity was made below or here, and when the court called for defendant’s evidence at the close of plaintiff’s case, counsel simply announced that there was none. Nor was OCGA § 9-10-154 invoked.


text:
    A89A0624. A89A0625.
    RICH v. THE STATE. PARKS v. THE STATE.
    (381 SE2d 567)
   McMurray, Presiding Judge.

Defendants Rich and Parks were charged with 10 counts of burglary of various Whitfield County businesses on or about November 14,1987. Both defendants were convicted of Counts 1 and 2, the burglary of Carpet Wholesale Outlet, Inc., and of Carpets by Sarah Ruth. On Count 3, the burglary of R. T. Carpets, Inc., defendant Rich was convicted while defendant Parks was acquitted. The trial court directed a verdict of acquittal as to both defendants on Counts 4 through 9 and the jury returned a verdict of not guilty as to both defendants on Count 10.

Both defendants appeal their convictions and enumerate as error the denial of their motions for new trial based on the insufficiency of the evidence. Defendant Rich also enumerates as error the admission into evidence of certain of the State’s exhibits. Held:

1. During the early morning hours of Saturday, November 14, 1987, two officers of the Whitfield County Sheriffs Department were on patrol at approximately 4:00 a.m. when they noticed an automobile at a self-serve car wash near an intersection with an interstate highway. The trunk of the automobile was open and the passenger was doing something (possibly vacuuming) in the trunk. As the deputies watched, the trunk was closed, the passenger got in the automobile, the automobile then left the car wash and turned onto the interstate highway. The deputies followed and, after observing the automobile weave out of its lane of traffic several times, initiated a traffic stop. Defendant Parks was driving and the passenger was defendant Rich.

Defendant Parks identified himself but when asked his passenger’s name, gave a false answer. When defendant Rich was asked for identification he produced a hunting license showing his correct name.

Defendant Rich was observed to have a fresh cut on his left hand. The cut was still bleeding and there was no bandage or medication on the hand. When asked about the cut, both defendants told the officers that it had been acquired in a fight in a club in Chattanooga. There was nothing else in defendant Rich’s appearance indicating that he had been in a fight.

After obtaining the consent of defendant Parks, who had identified himself as the owner, the vehicle was searched. In the course of the search the deputies observed two jackets in the backseat of the automobile. One was a heavier overcoat type jacket of brown or tan corduroy with a darker brown lining. The other was a red and white nylon athletic type jacket with Dalton High markings on it. Underneath the jackets were two boxes of candy. The candy was in white boxes with blue lettering on the boxes. The candy was described as being large bars of the type commonly sold for fund raising. Some of the candy was packaged in yellow wrapping and the remainder in white wrapping.

At the time of the traffic stop, the deputies were unaware that several nearby businesses had been burglarized that night. No arrest or citation of defendants was made at that time and they were permitted to continue on their way.

The burglaries, of which defendants were convicted, were discovered when the businesses were next opened. In the instance of Carpets by Sarah Ruth, this was later that Saturday morning. Burglars had gained entrance to this business by breaking a window. Inside, splatters of blood were found on a briefcase and a desk. Cash, postage stamps and two jackets were missing. One of the missing jackets was a red and white nylon Dalton High jacket. The other missing jacket was a three-quarter length, brown corduroy coat.

The burglary at Carpet Wholesale Outlet, Inc., was discovered at approximately 7:15 a.m. that Saturday morning (November 14, 1987) when the manager arrived at the store and saw that the glass in the bottom part of a door was shattered. Nearby lay a lug wrench (tire tool) on which was found a stain of Type B blood. Defendant Rich, along with 15 percent of the population, has Type B blood.

Some change from the money box and two boxes of candy were missing from Carpet Wholesale Outlet, Inc. The missing candy was described as big bars that were sold by some of the “ball teams or something.” The manager first testified that he could not remember the color of the candy boxes but later stated, the best he remembered, the candy boxes were gold.

The burglary of R. T. Carpets, Inc., of which only defendant Rich was convicted, was discovered on Monday morning (November 16, 1987) (this business did not open on Saturday). A broken window was found and someone had opened desk drawers and taken approximately $150 from a money box. Fingerprints lifted from the cash box matched those of defendant Rich. The manager of the business testified that defendant Rich had never been employed by the business and that there was no way he could have been in the business premises as a customer and touched the cash box.

“ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6. ‘(T)he term “hypothesis” refers to “such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does mean that the act might by bare possibility have been done by somebody else. . . . (Cit.)” (Cit.)’ Holland v. State, 176 Ga. App. 343 (1) (335 SE2d 739) (1985). ‘ “(I)n order to justify the inference of guilt beyond a reasonable doubt, circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. (Cit.) When a jury hears the evidence, it decides questions as to reasonableness. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law. (Cits.)” (Cit.)’ (Emphasis in original.) Perry v. State, 158 Ga. App. 349, 351 (280 SE2d 390) (1981). ‘ “(T)he weight and credibility to be given the testimony of witnesses is in the exclusive province of the jury,” (cit.), and it must be remembered that in circumstantial evidence cases, “ ‘(i)t is not necessary for the (S)tate to prove that it was impossible for the offense to have been committed by anyone else. . . .’” (Cit.)’ Zant v. Nelson, 250 Ga. 152, 154 (296 SE2d 590) (1982).” Redwine v. State, 188 Ga. App. 638 (373 SE2d 804).

Under the totality of the circumstantial evidence, we find that a rational trier of fact could reasonably have found proof of defendants’ guilt beyond a reasonable doubt of the offenses of which they were convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Redwine v. State, 188 Ga. App. 638, 639, supra.

In finding the evidence sufficient to authorize defendant’s convictions we have not overlooked the principle “that in a burglary prosecution where the state relies upon the defendant’s recent possession of allegedly stolen or feloniously taken goods for conviction, it is absolutely essential that the identity of stolen articles be indisputably established. Tommie v. State, 158 Ga. App. 216, 218 (4) (279 SE2d 510) (1981).” (Emphasis supplied.) Collins v. State, 176 Ga. App. 634, 636 (337 SE2d 415). See also Chester v. State, 144 Ga. App. 717 (242 SE2d 356). The emphasized language does not impose any additional burden of proof upon the State but is merely an application of the State’s burden to prove defendants’ guilt beyond a reasonable doubt. See Rayfield v. State, 5 Ga. App. 816 (63 SE 920).

Nor does the equivocal testimony given by the manager of Carpet Wholesale Outlet regarding the color of the boxes containing the stolen candy bar the convictions on Count 1. The jury could have concluded, as the manager originally testified, that he did not recall the color of the boxes, thus avoiding a contradiction in the evidence as to this fact.

Decided April 12, 1989.

Ralph M. Hinman, for appellant (case no. A89A0624).

Minor, Bell & Neal, J. Tracy Ward, Rickie L. Brown, for appellant (case no. A89A0625).

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Finally, we note in regard to defendant Rich’s conviction on Count 3, the burglary of R. T. Carpets, Inc., that the fingerprint evidence alone was sufficient to authorize the conviction since the fingerprints of defendant Rich were found in the place where the crime was committed and under such circumstances that they could only have been impressed at the time when the crime was committed. However, as there was additional circumstantial evidence of defendant Rich’s guilt on Count 3, we properly reviewed this conviction under the general criteria for convictions based on circumstantial evidence as stated in Redwine v. State, 188 Ga. App. 638, supra. See in this regard Mercer v. State, 169 Ga. App. 723, 725 (1) (314 SE2d 729).

2. Defendant Rich also enumerates as error the admission into evidence of State’s Exhibits 29, 30 and 31. These exhibits are candy bars which were identified by the manager of Carpet Wholesale Outlet as being “similar” to those taken in the burglary of that business and never recovered. These exhibits were admissible regardless of whether or not they were identical to the items stolen. Duvall v. State, 238 Ga. 325 (232 SE2d 918).

Judgments affirmed.

Carley, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    A89A0650. A89A0651.
    HATTAWAY v. KEEFE et al. KEEFE v. MIDDLE GEORGIA MANAGEMENT SERVICES, INC. et al.
    (381 SE2d 569)
   Deen, Presiding Judge.

Case No. A89A0650.

Randall L. Hattaway, an accountant, was a long-time friend of the elderly, and now totally incapacitated, Mattie Bayne Keefe. Sometime during the 1960’s, Hattaway organized a credit union while he was an employee of the Baldwin County Hospital, and his friend Mattie gave him $2,000 to put into a joint account with him. From time to time over the years, Mattie gave him money, and he would either put it in their credit union account or place it with Middle Georgia Management Services, Inc. (MGMS) in their joint names and receive a promissory note in return. As each note came due, it was rolled over into a new note, and Mattie frequently gave Randall cash which he would add to a new note. When the credit union account reached $5,000, it was closed. A new three-year note bearing 13 percent interest was issued on January 31, 1983, after Mattie Bayne Keefe signed an affidavit stating that a previous note (in the amount of $12,000 bearing 10 percent interest for three years) had been lost by her, and that the new note, for $17,000 to replace the lost note and to add $5,000 additional money, was being issued to her and Randall L. Hattaway as joint owners with right of survivorship. The testimony showed that the $5,000 added to the new note came from the closed credit union account.

The evidence further showed that the interest on the notes was reported to the Internal Revenue Service under Mattie’s Social Security number and that Hattaway requested that all the interest be paid to Mattie so she could purchase hay for her cattle in winter. The interest income was reported by Mattie on her tax returns. Hattaway testified that he did not manage Mattie’s affairs except to do her income tax returns and that he helped her with the farm for twenty-five years after her husband died. He claims that all the money represented by the note was his and it represented gifts of cash to him from Mattie. He claimed that he instructed MGMS to pay the interest to Mattie for income tax purposes so this income could be offset against the winter hay expenses. In 1979, when Mattie sold all the cows, Hattaway received one-half of the proceeds, and the farm was leased to a third party.

In 1987 Charles Ennis, purportedly acting for Mattie under a power of attorney, contacted Hattaway and demanded the note for $17,000 which was in his possession. Hattaway claims that he contacted Mattie, and she stated that she did not want it and that it was his. A bank employee also testified that she had talked to Mattie and was informed that Ennis was not to have the note, as it was Hattaway’s.

In February of 1987 Mattie filed an action against MGMS and Hattaway, alleging that she had made demand on MGMS for payment of a note payable to herself and Randall L. Hattaway and that it was refused unless she would surrender the note. She alleged that Hattaway had possession of it and that he refused to surrender it. She further alleged that the debt represented by the note was her property and demanded judgment against MGMS for $17,000 plus interest, and against all the defendants for costs. Hattaway answered, admitting possession of the note and denying all other allegations except venue and jurisdiction. Hattaway filed a cross-claim against MGMS alleging that it was indebted to him on the promissory note and that demand for payment was refused when it was presented. MGMS answered the complaint, denying that it was indebted to Mattie or that demand had been made by her, admitted a note was in Hattaway’s possession, and, as both Mattie and Hattaway had claimed an interest in the note, pleaded uncertainty as to what to do with the sums due on the note and stated a willingness to pay whomever the court directed it to pay.

Hattaway filed a motion for judgment on the pleadings and claimed the only allegations against him were that there was a note payable to Mattie and himself, and that he had possession of the note. This motion was granted. A direct appeal on this ruling was denied by this court because the case was still pending in the court below. Both Mattie’s claim against MGMS and Hattaway’s claim against MGMS proceeded to trial. Hattaway appeals from the entry of a judgment on a jury verdict in favor of Mattie Bayne Keefe.

1. Hattaway first contends that the trial court erred in denying his motions for a directed verdict.

While OCGA § 11-3-116 provides that an instrument payable to the order of two or more persons “(a) is payable to any one of them and may be negotiated, discharged, or enforced by any of them who has possession of it,” this code section does not control ownership between the co-payees. “Possession of a negotiable instrument is presumptive evidence of title,” Dawson v. Gen. Discount Corp., 82 Ga. App. 29, 31 (60 SE2d 653) (1950), but it is not conclusive. OCGA § 44-1-12 provides: “One person may have the right of possession of certain [personal] property and another person may have the right to the property itself. A union of those rights constitutes a perfect title.” One in possession of personal property is presumed to be the owner until the contrary appears, and the burden of rebutting the presumption is upon the party claiming adversely to the one in possession. Beard v. Stephens, 117 Ga. App. 132, 133 (159 SE2d 441) (1968). In the instant case, Mattie claimed that she had a right to the property and that Hattaway merely had possession of the promissory note. We find no error in the trial court’s denial of appellant’s motions for a directed verdict. The standard of review of the denial of a motion for a directed verdict is the “any evidence” test. Kittles v. Kittles, 187 Ga. App. 537, 538 (370 SE2d 803) (1988).

Mattie presented sufficient evidence to present the issue for jury decision, and it was for the jury to determine if she met her burden of proof.

2. Hattaway next asserts the general grounds and claims that the judgment on the pleadings in his favor was res judicata. We agree that he was eliminated from Mattie’s case as a party defendant, but two issues were left pending: Mattie’s claim on the note against MGMS and Hattaway’s counterclaim. The court consolidated these cases and tried them together without Hattaway’s objection. We find no error.

Decided April 12, 1989.

Robert H. Herndon, for Hattaway.

Gordon Lee Dickens, Jr., for Keefe.

3. The trial court did not err in admitting parol and documentary evidence as to the notes not sued upon in the case. These notes were earlier notes which were rolled over into the note in question. Other notes were used to trace the source of the money loaned to MGMS, and other evidence included deposit slips and testimony about how the various notes were made. This evidence and testimony was not used to vary the terms of the notes in issue, but rather to prove that Mattie was the source of the funds in question.

4. During the course of the trial, the judge permitted a deposit slip into evidence over Hattaway’s objection and stated in the presence of the jury, “Well, I think the issue is whose money it is and if it goes to that, it is relevant.” Appellant contends that this statement constitutes an impermissible expression of personal opinion by the trial judge. We disagree. The jury recharge specifically directed it to find whether the proceeds of the note belonged to Mattie Bayne Keefe or Randall Hattaway, and it was clearly the main issue in the case. While the trial court may have inadvertently used the personal expression, “I think,” he was clearly making a legal ruling on the admissibility of evidence, and not making any personal statement as to the value of the evidence to either party.

5. Appellant did not request a charge on a partial verdict for each party, and we find no error in the court’s failure to so charge. The issue of partial ownership was not raised by the pleadings or the evidence. Indeed, Hattaway and Mattie each claimed sole ownership in the note in question.

We find no merit in any of the enumerations of error asserted in this case.

Case No. A89A0651.

In view of our holding in the preceding case, it is not necessary to address the issues raised in the cross-appeal.

Judgment affirmed in Case No. A89A0650 and dismissed as to Case No. A89A0651.

Birdsong and Benham, JJ., concur.

Milton F. Gardner, for Middle Georgia Management Services.


author: Sognier, Judge.

text:
    A89A0079.
    HOFFMAN v. DOE.
    (381 SE2d 546)
   Sognier, Judge.

Kathleen Hoffman brought suit against Rickey Neil Singley and an unidentified driver (John Doe) to recover damages arising out of an automobile accident in which she was injured. Hoffman’s uninsured motorist carrier, Travelers Insurance Company, was served with a copy of the complaint and summons pursuant to OCGA § 33-7-11 (d). The insurer answered in the name of Doe and moved for summary judgment, which was granted by the trial court. Hoffman appeals.

The record reveals that on the date of the accident appellant was driving west on a two-lane road in Gwinnett County, and Singley was driving east on the same road. Singley testified at deposition that an unidentified vehicle pulled out in front of him suddenly, and in swerving to avoid a collision with that vehicle, he lost control of his car, and as a result crossed the westbound lane at an angle where his vehicle was hit by appellant’s car, which was in its proper lane. Singley also testified that after the accident a man approached him and said that he was the driver of the car that had pulled out in front of him, but Singley did not note the man’s license number, and the man left the scene while paramedics were attending to Singley. Singley contended the unidentified man was responsible for the accident. Appellant testified at deposition that she remembered seeing no cars on the road but her own and Singley’s from the time she entered the road until the time of the accident, and that she did not contend that the collision was caused by an unidentified vehicle which pulled out in front of Singley.

Appellant contends the trial court erred by granting summary judgment in favor of appellee because, contrary to the trial court’s findings, she met the requirements in OCGA § 33-7-11 (b) (2) for coverage under the uninsured motorist endorsement in her automobile insurance policy. We disagree and affirm the trial court’s grant of summary judgment to appellee.

OCGA § 33-7-11 (b) (2) provides, in pertinent part, that “in order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated, by an eyewitness to the occurrence other than the claimant.” (Emphasis supplied.)

We find no merit in appellant’s assertion that although it is uncontroverted that there was no actual physical contact between the “phantom” vehicle and either of the two vehicles which collided, appellee’s actions in setting in motion a chain of events leading to the collision serve as sufficient “physical contact” to satisfy the statute under this court’s holding in State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (1) (202 SE2d 213) (1973). Carlson is distinguishable from the case sub judice because in Carlson the unidentified vehicle actually struck the car which then hit the insured vehicle, and this court decided that in those factual circumstances the “physical contact” requirement of the statute was satisfied. Further, in Martin v. Doe, 174 Ga. App. 156 (329 SE2d 291) (1985), Carlson was distinguished on that basis and this court held that where there is no physical contact with a “phantom” car, even by an intervening vehicle, the statutory requirement of actual physical contact is not satisfied. We decline to accept appellant’s invitation to overrule Martin, supra, and appellant’s argument is controlled adversely to her by that case.

In Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987), the Supreme Court insisted on a narrow interpretation of OCGA § 33-7-11 (b) (2), saying that “[i]f the General Assembly had intended [something other than the literal meaning of the words used in the statute], it could have so specified.” Id. at 363-364. We find that to be dispositive of appellant’s contention that filing a complaint against John Doe suffices to satisfy the statute’s requirement of a “description” by the “claimant.” It is certain that the Legislature knew the difference between a description by the claimant and the pleadings, and consequently appellant’s filing suit against John Doe does not constitute a “description by the claimant of how the occurrence occurred.”

Appellant contends that the statutory corroboration requirement was satisfied because her description of how the accident occurred was corroborated by an eyewitness to the occurrence other than herself in that Singley and she agree that the accident occurred when Singley lost control of his vehicle, which crossed the centerline and collided with appellant’s oncoming vehicle. We cannot agree that this is sufficient. By its plain terms, the statute applies only when there is a claim that the accident was caused by an unknown or “phantom” vehicle. It imposes two requirements for recovery under an uninsured motorist endorsement when there is no physical contact between the claimant’s vehicle and one operated by an unknown person. The first requirement is “a description by the claimant of how the occurrence occurred.” Because the statute addresses only those situations in which the claim is that the accident was caused by an unknown vehicle, it is beyond question that the “description” required by the claimant must at least include such an unknown vehicle. The second requirement is that the description must be corroborated by an eyewitness other than the claimant. This can be read only as requiring that such description be corroborated in its material allegation, i.e., implication of the unidentified vehicle, for that is the subject addressed by the statute. “ ‘ “It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” [Cit.] “The construction must square with common sense and sound reasoning.” [Cit.]’ [Cit.]” Stacey v. Caldwell, 186 Ga. App. 293, 295 (1) (367 SE2d 73) (1988).

Decided April 4, 1989

Rehearing denied April 13, 1989

Finch, McCranie, Brown & Thrash, Thomas W. Thrash, for appellant.

E. Wycliffe Orr, R. Chris Irwin & Associates, R. Chris Irwin, Thomas C. MacDiarmid, for appellee.

By her own admission, not only did appellant not describe the accident as having been caused by an unknown vehicle, she could not have so described it because the only vehicles she remembered were her own and that of Singley. She saw no other vehicles. Because claimant’s description did not include a “phantom” vehicle, the statute does not apply. Accordingly, no coverage existed under the uninsured motorist endorsement and the trial court did not err by granting summary judgment to appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0384.
    BROWN v. DEPARTMENT OF TRANSPORTATION.
    (381 SE2d 532)
   Banke, Presiding Judge.

The Department of Transportation (DOT) instituted condemnation proceedings against 0.14 acres of land owned by Joseph D. Daniel and occupied by the appellant, A. H. Brown, Jr. d/b/a Econ-O-Wash Laundry, as a tenant. The owner, Daniel, was served on November 22, 1987, and on December 1, 1987, filed a timely notice of appeal on the issue of value. On December 11, 1987, Daniel filed a motion for disbursement of the funds which the DOT paid into the registry of the court; and on December 14, 1987, the court entered a disbursal order allowing him to withdraw these funds. Two weeks later, on December 28, 1987, the appellant was served with a copy of the condemnation petition. More than 30 days later, on February 4, 1988, he filed a notice of appeal. On motion by the DOT, the trial court subsequently dismissed the appellant’s appeal as untimely. See generally OCGA § 32-3-14. Thereafter, the appellant filed a motion to intervene in the proceedings, as well as a “Motion to Dismiss and Set Aside the Condemnation.” The trial court denied the motion to dismiss and set aside the condemnation petition but allowed the appellant to intervene for the limited purpose of asserting “his claim to any funds paid pursuant to said condemnation,” with the proviso that “said intervention shall not constitute an appeal in said case and [appellant] may not participate in the trial on the question of valuation.” The case is now before us pursuant to our grant of the appellant’s application for an interlocutory appeal. Held:

1. In Department of Transp. v. Morris, 186 Ga. App. 673 (368 SE2d 155) (1988), this court held that a property owner who had failed to file a timely notice of appeal after being served in a condemnation proceeding was nevertheless entitled to participate in an appeal on the issue of value subsequently filed by two other condemnees, who had not been served but who asserted an interest in the property pursuant to an oral tenancy. The court reasoned that since the issue of value was going to be tried anyway, “fundamental fairness” dictated that the condemnee who had not filed a timely appeal, but whose interests would of necessity be adjudicated at the trial on the issue of value, be allowed to participate. Id. at 675. Based on that decision, we hold that the appellant in the present case is similarly entitled to participate in the appeal filed by his co-condemnee on the issue of compensation. Accordingly, the judgment of the trial court is reversed insofar as it sought to exclude the appellant from such participation.

2. The appellant contends that because the funds paid into the registry of the court by the department had already been disbursed before he was served with a copy of the condemnation petition, the taking was invalid as to him and should have been set aside. This contention is without merit. OCGA § 32-3-17 (b) specifies: “After the filing of the declaration of taking and the payment of the fund into the registry of the court as provided for in Code Section 32-3-7, the petitioner shall not be concerned with or affected by any subsequent proceedings except as to the appeal and interlocutory petition provided for in Code Sections 32-3-14 and 32-3-15 respectively and concerning which the sole issue shall be as to the amount of just and adequate compensation.” Pursuant to this Code section, any dispute between the condemnees over the ownership of the funds paid into the registry of the court and the manner in which they were paid out did not affect the validity of the taking itself.

Decided April 3, 1989

Rehearing denied April 13, 1989

Dillard, Greer, Westmoreland & Wilson, Shawn D. Stafford, for appellant.

Sams, Glover & Gentry, Garvis L. Sams, Jr., Evans & Flournoy, Charles A. Evans, for appellee.

3. The appellant further contends that the condemnation petition and declaration of taking were void because they did not “adequately describe the lands and property rights taken since the exhibits and plats to Condemnor’s petition are unclear and do not sufficiently define the property interests and rights to be taken.” As the appellant has failed to disclose the nature of the alleged defect or defects in the property description, this- contention presents nothing for review.

4. The appellant finally contends that the declaration of taking was defective in that it failed to state that the land was being taken for public use. This contention strikes us as frivolous, inasmuch as the condemnation petition, to which the declaration of taking was referenced, specified unequivocally that the land was being taken for highway purposes.

Judgment affirmed in part and reversed in part.

Sognier and Pope, JJ., concur.


text:
    A89A0239.
    FIRST UNION NATIONAL BANK OF NEWNAN v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (381 SE2d 573)
   McMurray, Presiding Judge.

Plaintiff First Union National Bank of Newnan brought suit against defendant General Motors Acceptance Corporation (“GMAC”), seeking damages for money had and received, conversion and breach of contract. It was alleged that plaintiff sent a check in the amount of $12,094.26 to GMAC to pay the balance due on an automobile loan; that the check was tendered on condition that GMAC release its lien on the automobile collateralizing the loan and deliver the title certificate to plaintiff; and that GMAC accepted the check but did not deliver the title certificate to plaintiff. GMAC answered the complaint and denied it was liable to plaintiff.

Following discovery, the case proceeded to trial. The plaintiff introduced the payoff check and an accompanying letter into evidence. The payoff check was not endorsed restrictively. The accompanying letter simply read: “To Whom It May Concern: Please find enclosed Cashier’s Check # 35691 in the amount of $12,094.26 to payoff the loan in the name of Robert Head, Jr., on a 1985 Trans Am #1G2FW87F6FL650657. Please release your lien and forward to my attention. Thank you for your help in this matter.”

GMAC moved for a directed verdict at the close of plaintiff’s evidence. The motion was granted and judgment was entered accordingly. Plaintiff appeals, enumerating error upon the grant of defendant’s motion for a directed verdict. Held:

When a lien appearing on a certificate of title is satisfied, “[t]he security interest holder or lienholder having custody of a certificate of title must deliver the certificate of title to the next lienholder or security interest holder within ten days after his lien or security interest has been satisfied and, if there is no other security interest holder or lienholder, he must deliver the certificate of title to the owner.” OCGA § 40-3-26 (c). See OCGA § 40-3-56 (a). Thus, in the case sub judice, GMAC properly forwarded the certificate of title to the owner of the automobile when the loan was paid off by plaintiff.

Plaintiff contends the loan was paid off on condition GMAC deliver the certificate of title to plaintiff. It maintains that GMAC had a duty to return the check to plaintiff because GMAC did not comply with the condition. See in this connection Federal Employees Credit Union v. Capital Auto. Co., 124 Ga. App. 144 (183 SE2d 39); Atlanta Motorcycle Sales v. Fulton Nat. Bank, 147 Ga. App. 297 (248 SE2d 558); Larry’s Mobile Homes v. Robins Fed. Credit Union, 161 Ga. App. 822 (288 SE2d 800).

If plaintiff had paid the loan upon condition that GMAC deliver the certificate of title to plaintiff, we would be inclined to agree with plaintiff’s contention. The evidence adduced at trial, however, does not demonstrate that the payoff check was forwarded to GMAC conditionally. Rather, the evidence demonstrates that the payoff check was forwarded to GMAC unconditionally.

The check bore no restrictive endorsement. Compare Federal Employees Credit Union v. Capital Auto. Co., 124 Ga. App. 144, supra; Atlanta Motorcycle Sales v. Fulton Nat. Bank, 147 Ga. App. 297, supra; Larry’s Mobile Homes v. Robins Fed. Credit Union, 161 Ga. App. 822, supra. True, the check was accompanied by a letter. But the letter imposed no condition upon GMAC. It simply requested that the lien be released and forwarded. It did not establish a condition for the acceptance of the check.

Even when viewed favorably to plaintiff, the evidence fails to demonstrate that GMAC accepted the payoff check in violation of a condition or a special purpose for which the check was delivered. Accordingly, the trial court did not err in granting GMAC’s motion for a directed verdict.

Decided April 13, 1989.

Glover & Davis, Michael E. Sumner, for appellant.

McCullough & Pane, John G. McCullough, for appellee.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0033.
    WATKINS v. THE STATE.
    (382 SE2d 107)
   Sognier, Judge.

Robert Wayne Watkins was indicted on charges of malice murder and felony murder, and was convicted of voluntary manslaughter, as well as possession of a firearm by a convicted felon and criminal damage to property in the second degree. He appeals.

1. Appellant contends the evidence was insufficient to support the verdict. Construing it in the light most favorable to the verdict, evidence was adduced that on July 24, 1987, appellant was visiting Raymond Speed when Speed’s sister, Barbara Nicholson, arrived upset and crying because her former boyfriend, Danny Hansard, had threatened and attacked her. Nicholson testified that in a conversation with Hansard a few days earlier, he had made threats against appellant, whom Nicholson had previously dated, out of jealousy, which Nicholson had thereafter related to appellant, but Nicholson denied that she and appellant had renewed their relationship. All the parties went to the home of Dorothy Speed, where shortly thereafter Hansard drove back and forth in front of the residence a number of times and then began to telephone the residence repeatedly, asking to talk to Nicholson and using progressively more violent and obscene language. Raymond Speed departed with appellant and Dorothy Speed’s .22 calibre rifle and drove a short distance from the residence to the convenience store where Hansard was parked while he telephoned Nicholson. Although appellant, as well as Dorothy Speed, who arrived at the convenience store shortly after appellant, testified that Hansard began the confrontation by firing his shotgun at appellant, numerous other witnesses testified that the .22 calibre rifle was the first weapon fired. When the police arrived on the scene, appellant admitted shooting Hansard and showed the police the rifle he had used. The rifle was found emptied with 16 cartridge cases found in the area. Hansard, who was hit five times, died from his injuries.

«< evidence here was in dispute as to whether [appellant shot Hansard] with malice aforethought (since he was charged with murder), out of passion, or out of justification in self-defense. The resolution of this question depended heavily on the credibility of the witnesses, including [appellant]. Decisions regarding credibility are exclusively for the jury. (Cits.) A rational trier of fact was authorized to find the elements of voluntary manslaughter beyond a reasonable doubt. (Cits.)” ’ [Cits.]” Harris v. State, 183 Ga. App. 219, 220 (358 SE2d 634) (1987).

Likewise, we find appellant’s admission that he fired the rifle and the evidence of appellant’s prior felony convictions sufficient to support his conviction for possession of a firearm by a convicted felon under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As to appellant’s conviction for criminal damage to property in the second degree, testimony and photographs were introduced showing that the gunshots fired by appellant pierced multiple holes in Hansard’s car and shattered the windshield, and that the damage required replacement of the front fender and other repairs amounting to over $1,100 on a vehicle worth $1,500 before damaged. We find this evidence sufficient to support appellant’s conviction under OCGA § 16-7-23 (a). See Holbrook v. State, 168 Ga. App. 380-381 (1) (308 SE2d 869) (1983); Bembry v. State, 155 Ga. App. 847 (1) (273 SE2d 208) (1980); see generally Jackson v. Virginia, supra. Hence, the court did not err by denying appellant’s motion for a directed verdict of acquittal on this charge, which he alleges as error in a separate enumeration. See generally Branch v. State, 182 Ga. App. 818, 819 (1) (357 SE2d 136) (1987).

2. Appellant contends the trial court erred by charging the jury on voluntary manslaughter pursuant to OCGA § 16-5-2. “ ‘ “On the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury.” [Cit.]’ [Cit.]” Banks v. State, 184 Ga. App. 504 (1) (362 SE2d 227) (1987). In the case sub judice, evidence of Hansard’s threats against appellant due to appellant’s involvement with Nicholson, and Hansard’s physical abuse of Nicholson followed by harassing behavior and telephone calls constituted some evidence to authorize the charge as given. Although appellant argues there was no evidence that appellant suffered “a sudden, violent, and irresistible passion resulting from serious provocation” as required under the statute and that, even if such provocation existed, the interval during which appellant was driven from Dorothy Speed’s house to the convenience store where he shot and killed Hansard constituted a “cooling period” rendering voluntary manslaughter inapplicable, “[t]he sufficiency of the provocation and the questions of . . . ‘cooling time’ were the jury’s to determine. [Cits.]” Hagans v. State, 187 Ga. App. 216, 217 (3) (369 SE2d 536) (1988). We find no error in this enumeration.

3. The trial court refused to admit appellant’s Exhibit No. 1, a photograph of Hansard prior to the incident in question in which Hansard is shown holding a beer. Although appellant contends the photograph was admissible for purposes of identification, appellant’s other photograph of Hansard was admitted without objection and thus, even assuming the identity of the victim was in issue, no harm resulted from the trial court’s refusal to admit the first photograph. See generally Smith v. State, 180 Ga. App. 309-310 (3) (349 SE2d 4) (1986).

Decided April 4, 1989

Rehearing denied April 14, 1989

Oliver & Woods, William R. Oliver, for appellant.

Michael H. Crawford, District Attorney, for appellee.

4. We find no error in the trial court’s exclusion of the victim’s prior conviction for first degree forgery, as documented in appellant’s Exhibit Nos. 2, 3, and 4. “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. While the reputation or character of a murder victim for violence may be admissible under certain circumstances, see generally Bennett v. State, 254 Ga. 162, 164 (3) (a) (326 SE2d 438) (1985), we agree with the trial court that Hansard’s prior forgery conviction was irrelevant under OCGA § 24-2-2.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A89A0053.
    POWERS FERRY CONSTRUCTION, INC. et al. v. COMMERCE BUILDERS, INC.
    (381 SE2d 755)
   Carley, Chief Judge.

Appellee-plaintiff brought suit against appellant-defendant Powers Ferry Construction, Inc. (PFC), alleging a claim for breach of contract and also seeking to recover on a promissory note. Appellant-defendants Mary Austin and John Ransdell were joined in the action in their capacities as guarantors of the promissory note. The case was tried before a jury and, as to both claims, verdicts in favor of appellee were returned. Appellants appeal from the judgments entered by the trial court on the jury’s verdicts.

1. As to the issue of their liability on the promissory note, appellants enumerate as error the denial of their motions for directed verdict and for judgment n.o.v.

In two written agreements, appellee contracted to construct commercial buildings for appellant PFC. Each contract contained the identical clause: “Terms of Payment: $1,000 down upon acceptance of contract. Billings on 1st of month for labor or materials on job-site. Payment due on 10th of month.” Notwithstanding this clause, appellant PFC failed to make timely payments and appellee demanded assurances of payment as a condition of its continued performance. In return for appellee’s promise to forbear filing liens, appellants acknowledged that the sum of $119,560.69 was then past due and owing to appellee for its part performance to date and appellant PFC executed a note in that amount which appellants Austin and Ransdell guaranteed. When the note subsequently went into default, appellee ceased further performance under the contract and brought this action.

On this evidence, appellants urge a failure of consideration in that appellee did not complete the buildings that it had contracted to build. “A party to an entire contract who has partly performed it and subsequently abandons the further performance according to its stipulations, voluntarily and without fault on the part of the other party or his consent thereto, can recover nothing for such part performance.” (Emphasis supplied.) Ala. Gold Life Ins. Co. v. Garmany, 74 Ga. 51-52 (2) (d) (1884). Appellee did not, however, abandon its performance of the contracts “voluntarily and without fault on the part” of appellant PFC. Appellee ceased to perform only because appellant PFC had breached the contracts by failing to make timely payments. See Hill v. Harris, 11 Ga. App. 358 (7) (75 SE 518) (1912). “[W]here, in a continuing contract, one side refuses to perform, the other may accept the tender of the breach of contract, refuse to perform further and sue for damages. . . .” Concrete Materials of Ga. v. Smith & Plaster Co. of Ga., 127 Ga. App. 817, 825 (5) (195 SE2d 219) (1973). “If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. Accordingly, appellee’s failure to perform was excused by appellant PFC’s breach of the contract and appellee is entitled to recover for its part performance. See Flake v. Bowman, 28 Ga. App. 443 (7) (111 SE 747) (1922). It is undisputed that, at the time the promissory note and guarantees were executed, appellant PFC was indebted to appellee in the amount of $119,560.69 for labor and for materials then on the job site. The trial court did not err in denying appellant’s motions for directed verdict and for judgment n.o.v.

2. Appellants enumerate as error the admission of evidence regarding the funds that had been made available to appellant PFC for completion of the building projects. The contention is that the evidence was inadmissible as relating to appellants’ wealth and worldly circumstances. This objection was never raised below. The only objections that were presented to the trial court went to the general relevancy of the evidence. Even assuming that these relevancy objections were themselves sufficiently specific to present anything for review, the error, if any, was harmless. As noted, the evidence related to the funds that had been made available to appellant PFC for completion of the building projects. The admission of this evidence, even if irrelevant, could in no way have prejudiced appellants in their defense of the claims based upon appellee’s participation in those very projects. “Errors in admission or exclusion of evidence which would in no event alter or affect the outcome of the case are harmless and do not require reversal.” Owens v. Svc. Fire Ins. Co., 90 Ga. App. 553 (3) (83 SE2d 249) (1954).

Decided April 14, 1989.

Fred L. Cavalli, for appellants.

Vincent, Chorey, Taylor & Feil, Otto F. Feil III, Celeste McCoT lough, for appellee.

3. As to the breach of contract claim against appellant PFC, the jury returned a verdict in favor of appellee, but awarded damages of only $1 for lost profits. Appellant PFC urges that this verdict is inconsistent with the verdict on the promissory note.

If appellant PFC breached its contract with appellee, as the jury was authorized to find, then appellee was entitled to recover for its part performance of the contract and its lost profits, up to the contract price. See Stowers v. Ha1ll, 159 Ga. App. 501 (2) (283 SE2d 714) (1981). Accordingly, the jury’s verdicts, finding in favor of appellee as to both claims, are in no way contradictory or repugnant. That, after having heard the evidence as to damages, the jury returned $1 as nominal damages for the lost future profits occasioned by appellant PFC’s breach of contract is not inconsistent with its return of a verdict for actual damages for appellee’s part performance.

Judgments affirmed. McMurray,

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


text:
    A89A0086.
    WAUSAU INSURANCE COMPANY v. KING.
    (381 SE2d 574)
   Carley, Chief Judge.

In the Probate Court of Cobb County, appellant filed a notice of its disputed claim against the estate of Cynthia V. King. The probate court held that it was without subject matter jurisdiction over disputed claims against an estate, as “[s]uch jurisdiction is of a statutory nature and was not conferred on [it] by the 1987 additional jurisdiction contained in OCGA § 15-9-127.” Appellant appealed directly to this court. This court has jurisdiction pursuant to OCGA § 15-9-123, the case having been filed in the probate court after July 1, 1986. See Walker v. Yarus, 258 Ga. 346 (369 SE2d 32) (1988).

Decided April 14, 1989.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Joseph A. Munger, for appellant.

Roberta E. Murphy, Stephen E. ODay, Brooks & Brock, D. Glenn Brock, for appellee.

1. Appellant enumerates as error the probate court’s ruling that it lacked subject matter jurisdiction to decide the disputed claim. Appellant urges that such jurisdiction is conferred by OCGA §§ 15-9-127 and 9-4-4, whereby certain probate courts are granted concurrent jurisdiction with superior courts to hear proceedings for declaratory judgments involving fiduciaries.

Notwithstanding its reliance upon OCGA §§ 15-9-127 and 9-4-4, appellant never filed a petition for declaratory judgment in the probate court. The only pleading that appellant ever filed in the probate court was its notice of the disputed claim. In a proceeding between a representative of the estate and an alleged creditor, the probate court has no jurisdiction to decide an issue as to an alleged indebtedness. Gettle, Fraser &c. v. Marchant, 144 Ga. App. 71-72 (240 SE2d 590) (1977); Fulford v. Sweat & Gaskins, 65 Ga. App. 521, 522 (16 SE2d 102) (1941). If appellant wished to invoke the probate court’s jurisdiction to render a declaratory judgment, it should have filed a petition seeking such a declaratory judgment. It did not do so. The probate court correctly determined that it lacked subject matter jurisdiction under the pleadings that were then before it.

2. In light of our holding in Division 1, the remaining enumerations of error need not be addressed.

Judgment affirmed.

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


text:
    A89A0161.
    WHITEHEAD v. WHITEHEAD.
    (381 SE2d 757)
   Sognier, Judge.

Carolyn P. Whitehead, executrix of the estate of Nettie Louise Whitehead, brought this declaratory judgment action against Bertie R. Whitehead, executrix of the estate of Robert P. Whitehead, and Metropolitan Life Insurance Company to establish entitlement to the proceeds of a life insurance policy on the life of Robert Whitehead. The trial court dismissed Metropolitan Life from the action after it paid the proceeds of the policy into the registry of the court. Carolyn Whitehead appeals from the trial court’s ruling that Robert Whitehead’s estate is entitled to the insurance proceeds.

The record in this action, which consists primarily of a stipulation of facts filed by the parties, reveals that Robert and Nettie Whitehead were divorced in 1961. The final judgment entered in their divorce action required Mr. Whitehead to “keep [in] force and effect by keeping all the premiums paid on the following insurance policies and . . . continue to keep [Nettie Whitehead] named as beneficiary on each of the following policies: Prudential Insurance Company, $10,000 policy,. . . [t]his being a part of [Nettie Whitehead’s] permanent alimony award.” Nettie Whitehead had been named as the beneficiary on the Prudential policy in 1957. Before Mr. Whitehead retired from his employment with the City of Atlanta, the City’s group life insurance carrier was changed from Prudential to Metropolitan Life, and Metropolitan Life assumed coverage on the policy delineated in the divorce decree. At some point after his retirement, Mr. Whitehead chánged the beneficiary on this life insurance policy from Nettie Whitehead to his estate. Robert Whitehead married appellee in 1962, and was married to her at his death in 1983. Nettie Whitehead, who never remarried, died in 1986.

Appellant contends the trial court erred by concluding Nettie Whitehead had no property interest in the successor Metropolitan Life policy. We agree and reverse, as we find this case to be controlled by the analysis in Curtis v. Curtis, 243 Ga. 611 (255 SE2d 693) (1979). In Curtis, the divorce decree required the husband to name his children as beneficiaries on the life insurance policy issued by his employer. After the employer changed carriers, the husband substituted his mother as the beneficiary. The Supreme Court ruled that, under Reeves v. Reeves, 236 Ga. 209 (223 SE2d 112) (1976), the children obtained a vested interest in the proceeds of the life insurance policy named in the divorce decree, and “where a policy of life insurance replaces a policy or amount specified in [a divorce decree], the minors’ interest in the prior policy applies to the replacement policy.” Curtis, supra at 613. The court distinguished Larson v. Larson, 226 Ga. 209 (173 SE2d 700) (1970), relied upon by appellee in the case sub judice, on the ground that in Larson the husband’s employer had cancelled the group life insurance without obtaining a successor insurer, and the husband then acquired another policy on his own. Accordingly, we find appellant’s decedent had a vested interest in the proceeds of the Prudential policy listed in the divorce judgment, and that interest applied to the successor policy issued by Metropolitan Life.

The cases cited by appellee as authority for the proposition that the divorce decree was void ab initio do not support that argument. Nor do we agree with appellee that Robert Whitehead’s obligations under the decree had terminated, as the judgment provided alimony was to be paid “until [Robert Whitehead] reaches the age of sixty-five, and until [Nettie Whitehead] remarries, and until such time that [Robert Whitehead] is retired by the City of Atlanta,” (emphasis supplied), and there is no dispute that the second of these three requirements was never met.

Decided April 14, 1989.

George L. Barron, Jr., for appellant.

H. Martin Huddleston, for appellee.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0168.
    JONES v. THE STATE.
    (381 SE2d 575)
   Carley, Chief Judge.

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

1. Appellant enumerates as error the denial of his motion to suppress.

The evidence adduced at the hearing on appellant’s motion would authorize the trial court to make the following findings: Officers received a tip from a confidential and reliable informant regarding the possession of cocaine by an “organization” whose members were currently staying in a local motel. The tip was both detailed and specific. According to the informant, he had, on the prior evening, personally observed the usé of cocaine in Room 328 of the motel and had been told that the “organization” was in possession of approximately 2 kilos of cocaine and $15,000 in cash. The informant supplied the officers with names, including appellant’s, and he also described the vehicles that belonged to the members of the “organization,” including a silver Toyota pickup truck. The officers went to the motel to corroborate the informant’s information. They determined that Room 328 was registered to a Sonya James and that she was preparing to check out. The officers obtained a description of Ms. James and they observed as she and two male companions left the motel and walked towards a silver Toyota pickup truck in the parking lot. Ms. James’ two male companions were appellant and Carter Hagler. Ms. James was carrying a red athletic bag. Hagler was carrying a brown grocery sack. After the bag and sack were deposited in the bed of the pickup truck, but before the three could drive away, the officers approached and identified themselves. They requested consent to conduct a search. Appellant asked to phone his attorney and one of the officers accompanied him to the motel to make the call. Since the brown grocery sack was not completely closed, one of the officers observed that it contained several glass smoking pipes which he recognized as drug paraphernalia. Another officer observed that the sack also contained a paper packet which he recognized as the type of container commonly used for cocaine or heroin. The officers did not, however, seize the sack at that time but requested and received Hagler’s consent to conduct a search of the bag. When cocaine was found in the paper packet, Hagler was arrested. Although Ms. James originally stated that she had no objection to a search of the red athletic bag, when the officer started to open the bag, she attempted to stop him. She was then arrested for obstruction of an officer. When the red athletic bag was opened, quantities of various types of drugs and drug paraphernalia were found. After the arrest of his two companions, appellant was placed under arrest for violating the Controlled Substances Act. A search of appellant’s person incident to his arrest revealed cocaine and marijuana.

It appears that the trial court would have been authorized to conclude that the informant’s tip, coupled with the officers’ corroboration and personal observations, provided sufficient probable cause for an immediate warrantless search of the sack and the bag before the truck could be driven away. See generally Turner v. State, 173 Ga. App. 782 (328 SE2d 368) (1985). However, even assuming that probable cause and exigent circumstances for an immediate search did not exist, the trial court was clearly authorized to conclude that the officers had a sufficient articulable suspicion to justify an investigatory stop of the three individuals. See generally Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986). While conducting their investigation, the officers saw, in plain view, drug paraphernalia in the brown grocery sack. See generally Williams v. State, 171 Ga. App. 934 (1) (321 SE2d 429) (1984). Although this would have justified the immediate seizure of the sack, the officers nevertheless requested and received Hagler’s consent to conduct a search. See generally Mancil v. State, 177 Ga. App. 663 (340 SE2d 279) (1986). Having confirmed that the brown grocery sack did contain cocaine, the officers were authorized to conduct a warrantless search of the entire truck, including the red athletic bag, with or without consent. See generally McKinney v. State, 184 Ga. App. 607, 610 (3) (362 SE2d 65) (1987). Having found drugs in both the sack and the bag, the officers had probable cause to arrest appellant as a party to the crime of violating the Controlled Substances Act and they were authorized to conduct a search of his person incident to that arrest. See generally Dasher v. State, 166 Ga. App. 237, 238 (1) (304 SE2d 87) (1983). The trial court did not err in denying appellant’s motion to suppress.

Decided April 14, 1989.

Jeffrey R. Sliz, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

2. Appellant enumerates the general grounds, urging that the verdicts of guilty were against the weight of the evidence.

This court considers the sufficiency of the evidence and not its weight. See generally Barnes v. State, 171 Ga. App. 478, 480 (1) (320 SE2d 597) (1984). The evidence showed that, at the time of his arrest, appellant was accompanied by Ms. James and Hagler. Ms. James was observed to place a red athletic bag containing drugs into the truck. Hagler was observed to place a brown grocery sack containing drugs into the truck. Appellant had drugs on his person. Hagler pled guilty and testified against appellant. After review, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of violating the Controlled Substances Act beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

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


text:
    A89A0217.
    BENTON v. WESLEY MACHINERY, INC.
    (381 SE2d 577)
   Pope, Judge.

Plaintiff Wesley Machinery, Inc., sued defendant Dr. Phillip Benton on an open account for farm equipment, repair services and other goods and services supplied by plaintiff to defendant. One of the items on the account was a mower listed at $8,323. During deliberations the jury sent in a written question to the court asking which party would retain ownership of the mower upon termination of the case. The judge replied in writing that the issue of ownership of the mower had been resolved by agreement between the parties but did not inform the jury of the substance of the agreement. The jury returned a verdict in favor of plaintiff for $6,710.38 damages plus $261. interest. The judge accepted the verdict and thanked the jurors for their service. As some of the jurors rose to leave, the judge volunteered that the parties had agreed the defendant would get the mower upon payment of the judgment. The jury foreperson indicated that the jurors had assumed otherwise in arriving at their verdict. The judge permitted the jury to retire for further deliberations and the jury then returned a verdict in favor of plaintiff for $9,206.61 damages and $1,288.93 interest. Defendant appeals.

Decided April 14, 1989.

Beck, Owen & Murray, Samuel A. Murray, Richard L. Collier, for appellant.

Don H. Taliaferro, for appellee.

1. The court supplied the jury with a verdict form stating: “We the jury find: (1) As to the issue of damages:_(2) As to the issue of interest:__” Defendant argues the form was in error because it did not give the jury the option of finding for defendant. In fact, the form did not fail to give the jury the option of finding for the defendant because the jury could have indicated a finding of zero as to each of the two issues presented on the verdict form. Moreover, the court instructed the jury that if it did not think the plaintiff was entitled to recover it should find for the defendant, “and the form of your verdict would be: We, the Jury find for the Defendant.” Here, the court properly instructed the jury as to each of the various possible verdicts authorized by the evidence. Compare Vaughan v. Farmers & Merchants Bank, 146 Ga. 51 (4) (90 SE 478) (1916).

2. Defendant also argues the court erred in permitting the jury to retire for further deliberations after returning the first verdict. “[A]fter a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance either by what the jurors say they intended to find or otherwise.” OCGA § 9-12-7. Here, the original verdict was received by the court and the jury was dismissed. However, before the jurors had actually dispersed and even before they left the jury box the foreperson indicated the verdict did not express the intent of the jury in light of the unknown agreement between the parties regarding ownership of one of the pieces of equipment at issue in the case. Contrary to defendant’s argument, although the jury had been dismissed, it had not yet dispersed. The court does not err in causing the verdict to be reformed to reflect the intent of the jury before the jury is dispersed. Suber v. Fountain, 151 Ga. App. 283, 291 (259 SE2d 685) (1979); Ballard v. Turner, 147 Ga. App. 584 (3) (249 SE2d 637) (1978); Monroe v. Alden, 61 Ga. App. 829 (1) (7 SE2d 424) (1940).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.