text:
    A89A1976.
    MALLARINO v. THE STATE.
    (390 SE2d 114)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine, in that he “did actually possess and bring into the State of Georgia an amount of cocaine greater than 28 grams.” Appellant appealed to this court and, although his conviction was affirmed, he successfully urged that he had been erroneously sentenced to 25 years and a $500,000 fine pursuant to the mandatory minimum sentencing provisions of then-existing OCGA § 16-13-31 (a) (1) (C). Mallarino v. State, 190 Ga. App. 398, 399 (1) (379 SE2d 210) (1989). Accordingly, appellant’s sentence was reversed and the case was remanded for “a sentencing rehearing. In such proceedings, the trial judge shall consider as operative the mandatory minimum sentence requirements of [then-existing] OCGA § 16-13-31 (a) (1) (A), and the maximum sentence as that authorized by [then-existing] OCGA § 16-13-31 (f). [Cit.]” Mallarino v. State, supra at 400 (1). In compliance with this directive, the trial court did conduct a resentencing hearing, but again imposed a sentence of 25 years and a $500,000 fine. Appellant appeals from this sentence.

Decided January 10, 1990.

Glenn Zell, for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

Contrary to appellant’s assertions, his current sentence is no “harsher” than that which was originally imposed. The current sentence of 25 years and a $500,000 fine is exactly the same as that which was originally imposed. The decisive difference is that appellant’s current sentence has been lawfully imposed pursuant to the applicable provisions of former OCGA § 16-13-31 (a) (1) (A) and former OCGA § 16-13-31 (f), rather than erroneously imposed pursuant to the inapplicable provisions of former OCGA § 16-13-31 (a) (1) (C). Moreover, even if appellant’s current sentence were “harsher,” there would still be no error. “It has been repeatedly held that resentencing a prisoner to correct an illegal sentence does not implicate double jeopardy rights, even if the prisoner has already served part of his term. [Cits.]” Stuckey u. Stynchcombe, 614 F2d 75, 76 (5th Cir. 1980). The record clearly reflects that, in compliance with this court’s directive, the trial court has imposed a sentence that is within the parameters of the applicable statutory provisions. That sentence must be affirmed. “ ‘This court is without authority to review sentences within the statutory range. (Cit.)’ [Cit.]” Endsley v. State, 184 Ga. App. 797, 799 (7) (363 SE2d 1) (1987).

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A2170.
    GAITHER v. THE STATE.
    (390 SE2d 113)
   Pope, Judge.

On January 1, 1988, Danny Floyd and his fiancee, Daniker Cunningham, were driving home after eating dinner at a restaurant. Because Floyd was smoking a cigarette, the window on the driver’s side was rolled down. While the car was stopped at a red light, several men approached the car. One put a gun to Floyd’s head and demanded money. Simultaneously, the defendant leaned into the car and turned the car off and attempted to remove the keys from the ignition. The defendant also took Floyd’s wallet and attempted to get his fiancee’s purse. However, Floyd was able to start the car and escape. Almost immediately, Floyd found a policeman and the two returned to the area where the robbery occurred. Floyd identified the defendant as did his fiancee shortly after the defendant’s arrest.

Decided January 10, 1990.

A. Nevell Owens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Katherine E. Beaver, Assistant District Attorneys, for appellee.

1. The defendant argues that his character was placed improperly in issue in violation of the holding in Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). While on the stand, the defendant testified, “I wouldn’t do nothing like that. I don’t even have it in my heart to rob nobody.” Outside the presence of the jury, in a hearing on the State’s request to use prior convictions to impeach the defendant’s testimony, the defendant further stated, “I ain’t never did nothing wrong in my life. I ain’t never broke a crime.” This was in response to a question from the defendant’s own attorney. “Where the defendant testifies in his own behalf and falsely denies past criminal conduct (or past misdeeds,) the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant. ... In this circumstance the defendant has not placed his character in issue within the meaning of OCGA § 24-9-20 (b). Rather, we recognize this as a situation where the state is permitted to rebut statements of a defendant who testifies at trial by disproving the facts testified to.” (Citations, punctuation and emphasis omitted.) Jones v. State, 257 Ga. at 759. Use of the defendant’s prior convictions for criminal trespass and theft by receiving was proper to rebut his protestations that he never had done anything like this before. There was no error.

2. The evidence adduced at trial was sufficient to enable a rational trier of fact to find that the defendant was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A89A2340.
    BROOKS v. KROGER COMPANY.
    (390 SE2d 280)
   Pope, Judge.

This is an appeal from the grant of summary judgment to defendant The Kroger Company (Kroger) in this slip and fall case. Plaintiff Brooks slipped upon a broken egg in the aisle of Kroger’s store and fell. In an affidavit, Kerry Willis, a Kroger employee, testified that he had been working in the dairy aisle 10 to 15 minutes before Brooks fell and that there was no broken egg or other foreign substance on the floor of the aisle at that time and that he did not know about the broken egg until he saw Brooks after she fell. He also averred that Kroger employees frequently checked the aisle for foreign substances.

1. “ ‘There are two different classes of (premises liability) cases which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. (Cits.) . . . The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. (Cit.) To sustain plaintiff’s cause of action in the latter case it is necessary that he prove “a period of time the dangerous condition has been allowed to exist. Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Cit.)’ Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142) (1976).” Queen v. Kroger Co., 191 Ga. App. 249, 249-250 (381 SE2d 413) (1989). “It is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous. [Cits.] Where it appears a foreign object had ‘not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.’ [Cit.]” Mazur v. Food Giant, 183 Ga. App. 453, 453-454 (359 SE2d 178) (1987). In the present case, there is no evidence of actual knowledge by Kroger of the hazard and the trial court correctly concluded that Kroger had pierced Brooks’ allegations regarding constructive notice.

2. Brooks argues that summary judgment is not warranted because the store manager offered to pay her medical bills and told her the accident was Kroger’s fault. In her deposition, Brooks testified first that she called the manager three days after the fall and that he told her to see a doctor and that Kroger would pay the bills. Later in the deposition, Brooks said the manager had called her. Brooks argues that the manager’s statements are admissions against interest which are part of the res gestae and should be imputable to Kroger.

Decided January 10, 1990.

Robert M. Ray, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Kent T. Stair, for appellee.

“[OCGA § 24-3-33] states: ‘The admissions by an agent or attorney in fact, during the existence, and in pursuance of his agency, shall be admissible against the principal.’ [OCGA § 10-6-64] states: ‘The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent is dead.’ The Code sections must be construed together, and the second effectively limits the scope of the first. [Cit.]” Southern R. Co. v. Allen, 118 Ga. App. 645, 646 (165 SE2d 194) (1968). “The declaration of an employee tending to admit negligence which would be imputable to his employer made to an investigating police officer 45 minutes after the collision is not a part of the res gestae. Nor is it admissible in evidence as an admission against interest inasmuch as the employee is not a party to the litigation. [Cits.]” Rutland v. Fuels, Inc., 135 Ga. App. 143, 145 (3) (217 SE2d 167) (1975). Obviously, a declaration made three days after the fact, as in the present case, would not be part of the res gestae. Nor is the store manager a party to this litigation. It follows that the statements are not admissible. Although in her brief Brooks argues that the store manager made the statements at the time of her fall, no such evidence exists in the record. “We cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court. [Cit.]” Garrison v. Dept. of Human Resources, 184 Ga. App. 449 (361 SE2d 860) (1987). The trial court’s grant of summary judgment was proper.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A1737.
    BARNER v. THE STATE.
    (390 SE2d 77)
   Sognier, Judge.

Charles Arthur Barner entered a plea of nolo contendere to a charge of rape, a noncapital.felony (see OCGA §§ 16-6-1; 17-7-95 (a)), and was sentenced to twenty years, five of which were to be served in prison. He filed this appeal from the denial of his motion to withdraw his plea, contending that it was not intelligently and voluntarily made.

The record reveals that on February 27, 1989, an indictment was returned against appellant, who at the time was incarcerated because of a parole revocation in an unrelated case. The trial court entered a release order on March 3, 1989, and appellant appeared for arraignment on March 7th. Appellant’s court-appointed counsel and the prosecutor informed the trial judge that an agreement had been reached on a negotiated plea whereby appellant would plead nolo contendere to the rape charge and the prosecutor would recommend a sentence of three to five years. The judge asked appellant whether he had had “enough time to talk to [his] lawyer” about his case, and whether he understood that the court “could sentence [him] to prison or fine [him] or both.” The trial judge also questioned appellant regarding his understanding of the rights he would be waiving by entering a plea and queried whether appellant had been subject to any threats or promises by the State. After receiving the prosecutor’s summary of the evidence, the court accepted the plea of nolo contendere but entered a twenty year sentence rather than the sentence recommended by the State.

Appellant contends his sentence was obtained under duress because he was incarcerated prior to the hearing and did not have sufficient time to consult with counsel. However, in response to the trial judge’s question on that point at the hearing, appellant voiced no complaints about the amount of time he had to talk with his attorney prior to entry of the negotiated plea, and indicated he had consulted with counsel. Moreover, “[t]he mere fact that counsel was appointed shortly before the plea was entered does not alone render the plea involuntary. [Cits.]” Walker v. Hopper, 234 Ga. 123, 125 (214 SE2d 553) (1975). Appellant also asserts in his brief that the prosecutor pressured him into making a hasty decision, but the record is devoid of any evidence to support this argument. “ ‘We will not presume error from a silent record. [Appellant] has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. [Cit.]’ [Cit.]” Williams v. State, 188 Ga. App. 496, 499 (3) (373 SE2d 281) (1988).

However, in his pro se pleadings filed with the trial court, appellant stated that he did not understand the sentence he received or why it differed from the plea agreement. “[A]t the time a plea is offered, the trial court shall, on the record, require the disclosure of any plea agreement which has been reached by the state and the defendant. Further, if the trial court intends to reject said plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her . . . plea as a matter of right. [Cits.]” State v. Germany, 246 Ga. 455, 456 (271 SE2d 851) (1980). This procedure was not followed in the case at bar. Although appellant indicated he understood he could be sentenced to prison, the trial court did not inform appellant of any of the matters required by State v. Germany, supra. Nor did the trial court even tell appellant what the maximum sentence was. Accordingly, we conclude the trial court erred by refusing to allow appellant to withdraw his plea of nolo contendere. See Sanders v. State, 169 Ga. App. 125 (1) (312 SE2d 160) (1983).

Decided January 2, 1990

Rehearing denied January 12, 1990

Mark G. Pitts, for appellant.

John R. Parks, District Attorney, R. Rucker Smith, Assistant District Attorney, for appellee.

Judgment reversed.

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


text:
    A89A1997.
    MITCHELL v. SOUTHERN GENERAL INSURANCE COMPANY.
    (390 SE2d 79)
   Sognier, Judge.

Southern General Insurance Company sought a declaration of its obligations under an insurance policy it issued Kenneth Daniels in regard to personal injury suits brought against Daniels by Leroy Mitchell. Only Mitchell was served. The trial court later allowed Southern General to add Celestine Burse (the plaintiff in another personal injury suit filed against Daniels) as a party defendant, but she did not participate at trial and default judgment was entered against her. Based upon the jury’s response to the interrogatory submitted to it, the trial court entered judgment in favor of Southern General, and Mitchell appeals.

Appellee insured Kenneth Daniels’ Chevrolet. Appellant owned a Mustang which was not insured. Daniels, who is appellant’s brother-in-law, was driving the Mustang with appellant as the passenger when the Mustang was involved in an accident with Celestine Burse’s vehicle.

1. Appellant contends the trial court erred by admitting appellant’s deposition testimony, which appellee used when appellant was not present for purposes of cross-examination. The record reveals that the deposition was taken as part of discovery in two suits appellant had filed against appellee in Cobb County in 1986, in which appellant sought to recover personal injury protection benefits from appellee under the policy appellee issued Daniels as a result of the same accident in issue here. Exhibits in the record of the case sub judice reflect that summary judgment was granted to appellee in both suits.

Appellant argues that because the deposition was taken in a prior action, appellee was obligated to prove he was unavailable before using his deposition. We do not agree. The parties in the former action were the same as those parties actively involved in the case sub judice (Daniels having not been served and Burse being in default), and the former suit clearly concerned substantially the same issues. Thus, “[tjhere [was] no requirement that [appellant] need have been unavailable before the court could examine his deposition given in the other action and offered in this action by his adverse party. [Cits.]” Clover Realty Co. v. J. L. Todd &c. Co., 146 Ga. App. 576, 578 (5) (246 SE2d 695) (1978). We find no merit in appellant’s argument that the termination of the earlier suits in summary judgment does not constitute “dismissal” under OCGA § 9-11-32 (a) (5). However, we note that federal courts construing Rule 32 (a) of the Federal Rules of Civil Procedure prior to its amendment (when it was almost identical to this State’s statute, see Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980)) held that dismissal of the prior action was not required, see Weyerhaeuser Co. v. Gershman, 324 F2d 163, 164 (2nd Cir. 1963); Batelli v. Kagan & Gaines Co., 236 F2d 167, 169 (9th Cir. 1956); Wright & Miller, Federal Practice & Procedure: Civil § 2150, a position on which this court has intimated its approval. Guillebeau v. Jenkins, 182 Ga. App. 225, 230 (355 SE2d 453) (1987). Although appellant alleges other grounds why the admission of this deposition was error, the transcript reveals that these arguments were not raised below, and “[i]t is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) State of Ga. v. Stuckey Health Care, 189 Ga. App. 126, 129 (4) (375 SE2d 235) (1988).

2. Appellant contends the trial court erred by allowing appellee to read to the jury four paragraphs of its complaint. The record fails to support appellant’s argument that there is any discrepancy between the relevant paragraphs in appellee’s original complaint and that complaint as subsequently amended. Further, the record reveals that appellant’s responses to these paragraphs, which appellee’s counsel read to the jury, were derived not from appellant’s January 31, 1989 answer to the amended complaint but from appellant’s April 4, 1989 amended answer to the amended complaint. Thus, the record does not support appellant’s argument that those answers introduced into evidence by appellee’s counsel had been withdrawn. Appellant’s pleadings therefore were admissible at trial pursuant to OCGA § 24-3-30, and we find no merit in appellant’s arguments to the contrary.

3. Appellant contends the trial court erred by denying his motion for directed verdict on his claim that appellee’s declaratory judgment action should be dismissed because there was no uncertainty to justify the action under OCGA § 9-4-1 et seq. However, while appellant raised numerous specific matters on his motion for directed verdict, the subject matter of this enumeration was not presented to the trial court. “A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). “A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. In the case sub judice, [appellant] failed to raise this issue in [his] motions for directed verdicts brought after the close of [appellee’s] case and at the close of evidence. Consequently, this enumeration of error presents nothing for appellate review. The function of the requirement that the specific grounds be stated is to assure that the trial court has an adequate basis for its decision.” (Citations and punctuation omitted.) Leader Nat. Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 116-117 (1) (375 SE2d 231) (1988).

4. Appellee’s counsel having stated during trial that appellee abandoned any issue raised by Section V (c) (1) of the policy, the trial court’s refusal to grant appellant a directed verdict on that issue could not have harmed appellant. “To warrant reversal, alleged error must be harmful. [Cit.]” Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 806 (1) (371 SE2d 421) (1988).

5. Appellant contends the trial court erred by denying his motion for directed verdict made on the basis that appellee’s insured was using appellant’s vehicle as a “temporary substitute automobile,” which would require appellee to provide coverage under Section IV (a) (3) of the policy. “ ‘A verdict shall be directed where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). “The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard. (Cit.)” (Cit.)’ [Cit.]” Kirkland v. Southern Discount Co., 187 Ga. App. 453, 454 (2) (370 SE2d 640) (1988). Evidence was adduced at trial that Daniels, appellee’s insured, was driving appellant’s car because Daniels “wanted to go for the ride” and wanted “to show his wife that he could drive a Mustang . . . stick shift.” No direct evidence was presented at trial regarding the status of Daniels’ insured vehicle. Thus, there was some evidence that Daniels was driving appellant’s car purely for his own personal pleasure rather than as a temporary substitute vehicle, and the trial court did not err by denying appellant’s motion for a directed verdict on this issue. See generally Beacon Engineering Co. v. Reece, 186 Ga. App. 64, 65 (2) (366 SE2d 694) (1988).

6. Contrary to appellant’s contention, a review of appellant’s deposition testimony adduced at trial and the properly admitted responses in appellant’s answer to the allegations in appellee’s complaint reveals ample evidence from which the jury could have found that appellant and Daniels were members of the same household residing together. Although appellant refers to a response in his deposition in which, when asked who lived with him, he stated “[m]y mom. Brother. Sister,” in the following question when asked the names of these people, appellant included both Daniels’ wife (appellant’s sister) and Daniels. While there was evidence from which the jury might have concluded Daniels and his wife were not members of the same household as appellant, the evidence did not demand such a finding. Inasmuch as the evidence and the inferences drawn therefrom were sufficient to withstand appellant’s motion for directed verdict, the trial court did not err by denying the motion. See generally All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 192 (1) (355 SE2d 465) (1987).

7. In his seventh enumeration, in which he contends the trial court erred by failing to give the jury ten requested charges, appellant sets forth what the requested charges contained but provides no argument or citation of authority as to why the trial court’s failure to give these charges was error. We are thus compelled to treat the enumerated error as abandoned. Court of Appeals Rule 15 (c) (2); Banta v. Quik-Thrift Food Stores, 187 Ga. App. 250-251 (1) (370 SE2d 3) (1988).

8. In his final two enumerations of error, appellant challenges the special interrogatory given the jury on the basis that the trial court failed to submit all questions of fact to the jury. However, while appellant objected at trial to the special verdict the trial court submitted to the jury on the basis the trial court failed to include a question on the “temporary substitute vehicle” issue, appellant does not raise that issue now but instead asserts issues not included in his objection below. OCGA § 9-11-49 (a) provides that “[t]he court shall give to the jury such explanation and instruction concerning the matter thus submitted [by special verdict] as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issues so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accordance with the judgment on the special verdict.” (Emphasis supplied.) Appellant failed to make a specific and timely objection and thus waived any error in this matter. See Frostgate Warehouses v. Cole, 244 Ga. 782, 783 (262 SE2d 98) (1979).

Decided January 2, 1990

Rehearing denied January 12, 1990

George P. Graves, for appellant.

Sharon C. Barnes, Richard D. Hall, Freeman & Hawkins, Michael J. Goldman, Ralph E. Hughes, for appellee.

Judgment affirmed.

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


text:
    A89A1653.
    BEAUCHENE v. THE STATE.
    (390 SE2d 116)
   Sognier, Judge.

Richard A. Beauchene, Sr. was convicted by a jury of possession and sale of marijuana, possession of cocaine, possession of cocaine with intent to distribute (2 counts), cocaine trafficking (2 counts), and possession of a firearm during the commission of a felony (2 counts). He appeals from the judgment and sentence entered on the jury’s verdict.

1. Appellant contends the trial court should have granted his motion for a directed verdict of acquittal as to count 6 of the indictment, in which he was charged with trafficking in cocaine, on the ground that the State did not prove he sold cocaine of the requisite amount and purity. We do not agree. OCGA § 16-13-31 (a) (1) defines cocaine trafficking as, inter alia, the possession or sale of “28 grams or more of cocaine . . . with a purity of 10 percent or more of cocaine.” The State’s forensic chemist testified that State’s exhibit 4 consisted of three bags which contained a total of 82.8 grams of cocaine of between 55 and 58 percent purity. Although the witness stated that she did not perform the full range of tests on one of the bags, she did determine that the purity of its contents was the same as that of the other two bags, and that the total weight of the contents of the bags on which she performed all the tests was 55 grams. See generally Coop v. State, 186 Ga. App. 578, 580-581 (3) (367 SE2d 836) (1988). Thus, we find the State established the elements of the charged crime so as to satisfy the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In three enumerations of error appellant challenges the trial court’s ruling on issues related to the testimony of GBI Special Agent John Lang. At trial appellant admitted selling cocaine and marijuana to GBI undercover agent Scott Garner, but presented an entrapment defense, testifying that he and his business partner, Jim Barnes, were attempting to get into the business of selling gas grills, and that Garner was presented to him as the only person who was willing to sell inventory to them on credit. Appellant stated that in response to Barnes’ admonition that Garner was “into drugs” and that they would have to satisfy this need before he would sell inventory to them on the desired terms, appellant purchased cocaine and marijuana from a third party and sold the drugs to Garner.

On cross-examination appellant testified that he had never sold drugs other than the sales to Garner for which he was on trial. The prosecutor then asked whether appellant recalled being introduced to Lang by Garner and discussing selling cocaine to or “burning down [appellant’s] building for cocaine” with Lang, whereupon appellant’s counsel moved for a mistrial. After the motion was denied, the prosecutor continued with the cross-examination of appellant, during which appellant denied any knowledge of the weights and measures or slang terms common to the drug trade. The State then called Lang as a witness, and he played a tape recording of a conversation he had with appellant in which the two men discussed appellant’s desire to obtain insurance on the building in which his business was located and then hire Lang to burn it down. Appellant also discussed selling “three kilos” of cocaine to Lang, and stated that a kilogram contained “two point two pounds.”

(a) Appellant first contends the trial court erred by overruling his objection and mistrial motion made in response to the prosecutor’s question to appellant about his desire to hire Lang to burn down his building. Appellant argues that this question and the affirmative response he was required to give improperly placed his character into evidence, was not admissible as impeachment evidence because he had not given prior inconsistent testimony, and could not be used to show bent of mind because the State failed to give prior notice of intent to present evidence of similar transactions as required by Uniform Superior Court Rule 31.3.

We do not agree. “Where the defendant testifies in his own behalf and falsely denies past criminal conduct (or past misdeeds,) the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant. [Cit.] ... In this circumstance the defendant has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, we recognize this as a situation where the state is permitted to rebut statements of a defendant who testifies at trial by disproving the facts testified to. [Cit.]” (Punctuation omitted.) Jones v. State, 257 Ga. 753, 759 (a) (363 SE2d 529) (1988). Thus, when appellant testified that he had never sold drugs except when entrapped by authorities, the State was authorized to introduce the challenged testimony to rebut this specific testimony of appellant. The State’s failure to give the notice designated in USCR 31.3 did not bar the inquiry at issue because “[n]othing in [that] rule is intended to alter the rules of evidence relating to impeachment of witnesses.” USCR 31.3 (E).

Decided January 12, 1990.

John D. McCord III, for appellant.

Richard Beauchene, pro se.

Robert E. Wilson, District Attorney, Nelly F. Withers, Robert E. Statham, Desiree L. Sutton, Assistant District Attorneys, for appellee.

(b) Appellant’s contention that the trial court erred by allowing Lang to testify regarding his meetings with appellant and to play the tape recordings of their conversations is similarly without merit. Once appellant raised an entrapment defense with his testimony that he was induced to sell drugs by GBI agent Garner and by Barnes, who was cooperating with the GBI, the State had the burden to prove predisposition beyond a reasonable doubt. Griffin v. State, 154 Ga. App. 261, 264 (267 SE2d 867) (1980). Accordingly, evidence that during the same time frame appellant was selling marijuana and cocaine to Garner he also was discussing sale of a large amount of cocaine to Lang was admissible to prove bent of mind even though the evidence incidentally placed appellant’s character into issue. See State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980).

(c) Appellant’s enumeration of error concerning the trial court’s failure to instruct the jury that Lang’s testimony and tape recording were admitted for a limited purpose is controlled adversely to him by State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986) in that appellant failed to request such a charge at trial.

3. Finally, appellant contends that the trial court erred by sentencing him for a felony on count 9, possession of marijuana on March 25, 1988, because the evidence did not conclusively show that he was in possession of more than one ounce of the drug and the jury was not instructed to make a factual finding as to the amount as required by Jones v. State, 151 Ga. App. 560 (260 SE2d 555) (1979). However, unlike Jones, in the case at bar there was no dispute as to the amount of marijuana (5.7 ounces) appellant possessed on the date specified in the indictment. Thus, a charge to the jury was not required and the felony sentence was proper. Coffey v. State, 141 Ga. App. 254-255 (1) (233 SE2d 243) (1977).

Judgment affirmed.

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


text:
    A89A1818.
    McMICHAEL v. THE STATE.
    (390 SE2d 120)
    Decided January 12, 1990.

      J. Tracy Ward, for appellant.

      Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.
   Pope, Judge.

We have examined the record in this case in light of defendant’s enumeration of error claiming that the trial court erred in denying his extraordinary motion for new trial on the ground that he was denied effective assistance of counsel at the trial of the case. Counsel may, as defendant contends, have inadequately prepared for trial by failing to consult with the defendant about the trial of the case until the evening before the trial commenced and by failing to call certain witnesses identified by the defendant. However, under the facts of this case, the possible ineffectiveness of counsel does not provide a ground for retrial. Defendant’s sole defense to the charge was that he acted in self-defense. Defendant testified that he repeatedly cut the victim with a knife in response to her striking him twice with a stick which broke on the second blow. According to Georgia law, “[a] person is justified in . . . using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself . . . against such other’s imminent use of unlawful force. . . .” OCGA § 16-3-21 (a). Whether the circumstances are such to justify the defendant’s response is a question for the jury. Anderson v. State, 245 Ga. 619 (1) (266 SE2d 221) (1980). However, under the facts of this case, regardless of what the testimony of other witnesses might have been, defendant’s own testimony showed his response was not justified under the self-defense rule and, thus, no ground for new trial exists. We hold the trial court did not err in denying defendant’s motion for this and other reasons adequately and fully set forth in thé trial court’s order.

Judgment affirmed.

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

       We note that defendant’s trial counsel was subsequently disbarred for wilful abandonment of a client’s legal interest. In the Matter of Rodney H. Roberts, 258 Ga. 155 (366 SE2d 679) (1988).


author: Beasley, Judge.

text:
    A89A1971.
    HURSTON v. THE STATE.
    (390 SE2d 119)
   Beasley, Judge.

Hurston appeals his conviction and sentence as a recidivist, OCGA § 17-10-7 (b), for robbery by intimidation, OCGA § 16-8-41 (a), after a joint trial in which his brother was also a defendant.

The evidence construed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed that while ostensibly test driving an automobile, Hurston and his brother verbally intimidated the accompanying dealership salesman, left him off on the interstate, ánd took off with the car. Hurston’s sole contention on appeal is that the trial court erred in not allowing him to testify on direct examination about a conversation among his brother and the victim/salesman and himself, on the basis of its being inadmissible hearsay.

The objection came when defense counsel asked Hurston to affirm that there had been a conversation in the automobile. The State interjected Hurston should not be allowed to testify to “any hearsay of his brother” in conversation with the salesman. It expressly did not object to Hurston testifying to what the salesman said in the exchange. Hurston made no proffer of proof and the court sustained the State’s objection. Hurston related his own conversation with the salesman.

Hurston argues correctly .that the refused testimony was not hearsay, OCGA § 24-3-1, because anything seen or heard by a witness in the presence of a defendant is admissible and does not constitute inadmissible hearsay in this state. Moore v. State, 240 Ga. 210, 212 (2) (240 SE2d 68) (1977). For a discussion of hearsay’s definition, see McCormick on Evidence, § 246, p. 729 (1984 ed.).

Another reason is that testimony is considered hearsay only if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of that statement. See Fugitt v. State, 256 Ga. 292, 295 (1) (c) (348 SE2d 451) (1986). See also Salem v. State, 228 Ga. 186, 188 (3) (184 SE2d 650) (1971). Otherwise it is a verbal act and thus original evidence rather than hearsay. 29 AmJur2d 555, § 497.

However, “[n]o matter how competent evidence might be, a new trial will not be granted merely because evidence has been excluded. It must appear that the excluded testimony was material and the substance of what the material evidence is must be called to the attention of the trial court at the time of the exclusion. It is not sufficient in an appellate brief to call attention to error. The error, if any, must have been committed at trial and the ruling must have been made, not on a question only, but in light of the facts about which the witness would have testified. [Cits.]” Cooper v. State, 178 Ga. App. 709, 711 (2) (345 SE2d 606) (1986).

Decided January 12, 1990.

James W. Studdard, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Assuming Hurston’s failure to make a proffer of evidence does not preclude review of the matter, Hurston failed to demonstrate how he was harmed by the exclusion, especially in light of the fact that his brother later testified about the conversation in the car. See Evans v. State, 161 Ga. App. 504, 505 (5) (288 SE2d 629) (1982). Without harm, there is no reversible error. See Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).

Judgment affirmed.

Ccirley, C. J., and McMurray, P. J., concur.


author: Banke, Presiding Judge.

text:
    A89A0282.
    CAWTHON et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY et al.
    (391 SE2d 142)
    Decided January 16, 1990.

      Waddell, Emerson, George & Buice, Elmarie A. Emerson, Manley F. Brown, Rainwater & Christy, David N. Rainwater, Lamar W. Sizemore, Jr., for appellants.

      Drew, Eckl & Farnham, James M. Poe, Gardner & Gardner, Milton F. Gardner, for appellees.
   Banke, Presiding Judge.

In accordance with the decision of the Supreme Court' in Cawthon v. Waco Fire &c. Ins. Co., 259 Ga. 632 (386 SE2d 32) (1989), the previous decision of this court in the present case, reported at 190 Ga. App. 797 (380 SE2d 327) (1989), is hereby vacated, and the judgment of the trial court is reversed.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A2073.
    MANZIONE v. THE STATE.
    (390 SE2d 121)
   McMurray, Presiding Judge.

Defendant was indicted for violating Georgia’s Controlled Substances Act (possession of more than one ounce of marijuana with intent to distribute). Defendant subsequently filed a motion to suppress. A hearing was conducted on this motion and the evidence revealed the following:

Between 6:00 p.m. and 6:30 p.m. on April 1, 1988, Officer Fletcher Mattox of the Clarke County Police Department was on duty at the police station when he received three successive telephone calls from a man who identified himself as an employee of “ ‘the Pro Shop’ ” at Georgia Square Mall. The caller informed Officer Mattox that a white male with short black hair had just been to his place of business and had been attempting to sell marijuana to “some kids. . . .” The informant gave Officer Mattox a thorough description of the suspect’s clothing and informed the officer that the suspect was headed to a “game room” located in the mall. The caller also informed Officer Mattox that the marijuana was in a clear plastic bag; that the suspect had placed the marijuana in the front of his pants and that there was “a big bulge . . .” where the drug was concealed. (Officer Mattox testified that he recognized the caller’s voice as that of a person who had called in a “complaint” to the police station about two weeks earlier and that he had no reason to question the reliability of the informant’s information.)

Officers Jerry Stewart and Tony Norris of the Clarke County Police Department were dispatched to the mall to investigate the tip. The officers went to “the Time Out game room” and there they observed defendant and noticed that he matched the description of the man who had earlier been seen attempting to sell marijuana. The officers watched defendant for about five minutes and observed “a large bulge in [the front of defendant’s] pants. . . .” Shortly thereafter, the officers approached defendant, identified themselves as law enforcement officers and advised defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). Officer Stewart then conducted a “pat down” search of defendant and discovered in “the front of [defendant’s] pants” what was later identified as 2.7 ounces of marijuana.

Defendant’s motion to suppress was denied. He was found guilty of the crime charged by a jury and this appeal followed. Held:

In support of his sole enumeration, defendant contends that his arrest and search were made without probable cause in violation of his rights under the Fourth Amendment of the United States Constitution and in violation of his rights under Art. I, Sec. I, Par. XIII of the Constitution of the State of Georgia of 1983.

“Under Georgia law, an officer may arrest without a warrant ‘if the offense is committed in his presence or within his immediate knowledge ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.’ OCGA § 17-4-20 (a). The constitutional validity of an arrest without a warrant depends ‘upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at the moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.’ Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964). See also Durden v. State, 250 Ga. 325 (1) (297 SE2d 237) (1982), holding that the state rule and the federal rule are the same, i.e., ‘(a)n arrest and search, legal under federal law, are legal under state law.’ Id. at 327.” Stola v. State, 182 Ga. App. 502, 503 (1) (356 SE2d 222) (a two-judge case). In the case sub judice, defendant first argues that the “anonymous [tipster’s]” information was unreliable and therefore insufficient to supply probable cause for his arrest. This argument is without merit.

Decided January 16, 1990.

Donna L. Avans, for appellant.

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

First of all, the informant was not “anonymous.” The caller identified himself as an employee of a shop in the mall and Officer Mattox testified that he was aware of the tipster’s identity from a previous telephone conversation in which the caller made a complaint to police. Further, although the caller had never before provided police with information regarding drug-related activities, the informant made it known to Officer Mattox that he worked in the mall and that he had a stake in preserving the environment of the area in which defendant was conducting illegal drug-related activities. This evidence and evidence affirming details of the informant’s tip, i.e., defendant matched the description of the drug dealer, defendant was in the “game room” at the time the officers arrived at the mall and defendant had “a large bulge” in the area of his pants where the caller had seen defendant conceal contraband, was sufficient to verify the tipster’s veracity and support the trial court’s finding that the police had probable cause on which to arrest defendant. Stola v. State, 182 Ga. App. 502, 503 (1), 504, supra. See Wright v. State, 189 Ga. App. 441, 442 (1) (375 SE2d 895).

Next, defendant argues that the scope of the officers’ “pat-down” search was constitutionally impermissible. This argument is also without merit. Since defendant’s “pat-down” search was made pursuant to a lawful arrest, the search of defendant’s person was not prohibited. See William W. Daniel’s Georgia Criminal Trial Practice (1986 ed.), § 4-21, p. 104.

Judgment affirmed.

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


text:
    A89A2173.
    TERRY v. STEWART TITLE GUARANTY COMPANY.
    (390 SE2d 123)
   McMurray, Presiding Judge.

Stewart Title Guaranty Company (“Stewart”) brought this declaratory judgment action against Lee N. Terry, Jon L. Levine, and Daniel L. Dudley. Stewart alleged that on or about January 12, 1983, Dudley conveyed his interest in certain real property to Levine via quitclaim deed; that, the next day, Stewart issued Levine a title insurance policy insuring Levine’s title in and to the property; that, subsequently, Terry brought suit against Dudley and Levine alleging the January 12, 1983, conveyánce was fraudulent; that Levine demanded that Stewart defend him in the action brought by Terry; that Stewart is defending Levine in that action pursuant to a reservation of rights and non-waiver agreement entered into between Stewart and Levine; and that, nevertheless; Stewart is of the opinion it has no duty to defend Levine and would not be liable for any damages assessed against Levine in the action brought by Terry. Based on these allegations, Stewart sought a declaration as to its rights and obligations under the title insurance policy and a stay of the action brought by Terry pending resolution of the declaratory judgment proceeding.

Levine answered the complaint, asserting Stewart did have a duty to defend him and to respond to an award of damages (if there was one) in the action brought by Terry. Additionally, Levine counterclaimed, asserting Stewart acted in bad faith and caused him unnecessary trouble and expense and that, therefore, Stewart should be held liable in damages. Terry answered the complaint and also counterclaimed, seeking expenses of litigation because Stewart “without cause, without any basis, for the purpose of delay and harassment, and for the purpose of causing this defendant unnecessary trouble and expense, brought this action. . . .”

Following discovery, Terry moved for summary judgment and Stewart moved for partial summary judgment with regard to its claim against Levine. On January 4, 1988, the trial court granted Stewart’s partial summary judgment motion, ruling: “Plaintiff, Stewart Title Guaranty Company, is not obligated under the provisions of the policy .. . to defend or indemnify Jon L. Levine in the case of Lee N. Terry versus Jon L. Levine and Daniel Dudley . . . and further that the Plaintiff, Stewart Title Guaranty Company, has no liability under the provisions of said policy for any damages which may result, or any judgment which may be rendered in said case. . . .’’In view of its ruling, the trial court determined that the portion of Stewart’s complaint seeking a stay of the Terry action was moot. Accordingly, a stay of the Terry action was not entered. Finally, the trial court found that there was no just reason for delay and directed the entry of judgment in favor of Stewart and against Levine pursuant to OCGA § 9-11-54 (b).

Decided January 16, 1990.

The Nodvin Firm, Marvin P. Nodvin, Donald P. Geary, for appellant.

Kilpatrick & Cody, Theodore Brown, Jr., Duncan A. Roush, for appellee.

Thereafter, Levine dismissed his counterclaim against Stewart and, via letter to the trial court, Terry sought a ruling upon his motion for summary judgment, arguing “there is not now, and there has never been, any basis for denominating him a Party Defendant in this case.” In response, Stewart moved for summary judgment with regard to the remaining issues and on June 22, 1989, after considering the record, the trial court granted Stewart’s summary judgment motion and denied Terry’s summary judgment motion. Terry appealed. Held:

Even though it entered into a reservation of rights agreement with Levine, it was proper for Stewart to bring a declaratory judgment action to determine whether it was obligated to defend the pending suit brought by Terry against Dudley and Levine. See Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215 (231 SE2d 245). Moreover, even if it can be said that, having entered into a reservation of rights agreement with Levine, Stewart was not entitled to seek a stay of the Terry action (id. at 219), we cannot see how Terry was harmed by Stewart’s demand for a stay since no such stay was entered. It follows that the trial court did not err in awarding summary judgment to Stewart and denying summary judgment to Terry.

Judgment affirmed.

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


text:
    A89A2289.
    NEAL v. MILLER.
    (390 SE2d 125)
   McMurray, Presiding Judge.

This is a negligence action arising from a collision between a bicycle ridden by plaintiff Neal and an automobile operated by defendant Miller. Plaintiff appeals from a directed verdict in favor of defendant. Held:

“ ‘ “A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a).” (Cit.)’ Dependable Equip. &c. Co. v. Nursecare of Atlanta, 184 Ga. App. 136, 137 (361 SE2d 23) (1987).” Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792 (1), 793 (380 SE2d 296). See also Mays v. Daniels, 191 Ga. App. 618, 619 (382 SE2d 636).

On April 23, 1986, the date of the collision, plaintiff was nine years of age. Plaintiff and a friend were riding their bicycles on the streets of a residential neighborhood when they saw a steep driveway and decided to ride down it. Plaintiff and his friend walked their bicycles up the driveway. Plaintiff’s friend rode down first. Then, plaintiff rode his bicycle down the driveway and collided with defendant’s automobile in the street.

Plaintiff testified that when he started down the driveway, he moved slowly at first and looked through some of the trees, which extended along the right side of the driveway, but didn’t see an automobile coming. However, on cross-examination plaintiff conceded that it was not really possible to see through the trees to see if an automobile was coming. About halfway down the driveway plaintiff increased his speed and rode on down the driveway and into the street where the collision occurred. Plaintiff also stated that he looked a little bit to the right, but mostly looked straight ahead as he rode, that he did not stop before entering the street and that he did not see defendant’s automobile prior to the collision.

Defendant testified that she was driving home when she approached a group of children on the right side of the road, so she slowed down to approximately 15 miles per hour and moved toward the left side of the road as she went around the group. As defendant resumed her progress and was moving back to the right side of the street plaintiff “shot out of the driveway” on the left side of the street. When defendant saw plaintiff she immediately put on her brakes and came to a stop. Defendant testified that she had thought she stopped in sufficient time to avoid plaintiff, but that he struck the left side of her automobile. Defendant further testified she “thought [she] had time to stop, but you’re never quite sure of the stopping distance of a vehicle. ...”

“A directed verdict is authorized ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a). ‘Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.’ (Citations and punctuation omitted.) Collins v. Ralston & Ogletree, Inc., 186 Ga. App. 583, 584 (367 SE2d 861) (1988). ‘Where (as here) plaintiff simply fails to prove his case, the direction of a verdict is proper.’ (Citations and punctuation omitted.) Id. at 585.” Clayton v. Larisey, 190 Ga. App. 512, 514 (379 SE2d 789). See also Douse v. Smith, 186 Ga. App. 166 (366 SE2d 791); Johnson v. Ellis, 179 Ga. App. 343, 345 (346 SE2d 119); Griffin v. Campbell, 112 Ga. App. 420, 421 (3), 422 (145 SE2d 659).

Decided January 16, 1990.

Floyd, Jones & Ware, Thomas F. Jones, Serena L. Sparks, for appellant.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Robin L. Frazer, for appellee.

Judgment affirmed.

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


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

text:
    A89A1173.
    S & W SEAFOODS COMPANY et al. v. JACOR BROADCASTING OF ATLANTA et al.
    (390 SE2d 228)
   Banke, Presiding Judge.

This action arises out of comments broadcast by WGST Radio talk-show host Tom Houck on a restaurant review segment of his listener call-in show broadcast on November 6, 1987. A discussion of the restaurant owned by plaintiff S & W Seafoods Company commenced when a listener telephoned Houck to report, over the air, that he had received unsatisfactory service at the restaurant. Defendant Houck directed his program producer, Marcy Rubin, to telephone S & W and invite a representative to respond to the listener’s complaint over the air. Rubin spoke with the restaurant manager, plaintiff Robert Weinberg, who declined to participate in the radio broadcast. Although plaintiff Weinberg disputes Rubin’s account of the conversation, Rubin reported to defendant Houck that plaintiff Weinberg had been rude to her and insulted her over the telephone. During a news and commercial break, Houck telephoned Weinberg; and, again, the content of that conversation is disputed. However, when Houck returned to the air, he commenced a series of critical and unflattering comments about the restaurant and Weinberg. On the basis of these comments,* Weinberg and S & W sued to recover damages based on theories of defamation, intentional infliction of emotional distress, negligence, invasion of privacy, and tortious interference with business relations. The trial court granted the defendants’ motion for summary judgment in the action, concluding that each comment was either (1) an expression of opinion and therefore constitutionally protected speech; (2) hyperbole which could not reasonably have been interpreted by the listeners as a statement of fact; or (3) a statement of fact which was not proved by the plaintiffs to be false. Held:

1. The trial court did not err in granting summary judgment on plaintiffs’ defamation claims. Defamation by broadcast includes elements of both libel (OCGA § 51-5-1) and slander (OCGA § 51-5-4). See Montgomery v. Pacific & Southern Co., 131 Ga. App. 712 (2) (206 SE2d 631) (1974). We agree with the lower court that the statements at issue in this case were not actionable under these statutes, either because they were shown not to have been false or because they fell within the ambit of protected speech.

“[T]here is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 339 (94 SC 2997, 41 LE2d 789) (1974). In regard to the comments made about the food and service at plaintiffs’ restaurant, the case is similar to Bergen v. Martindale-Hubbell, 176 Ga. App. 745 (337 SE2d 770) (1985), in which a lawyer took offense at the professional ability rating he had received. We upheld the lower court’s grant of judgment on the pleadings to the defendant in that case, stating that “[t]he expression of opinion on ‘matters with respect to which reasonable men might entertain differing opinions’ [cit.] is not libelous.” Id. at 747.

Some of Houck’s comments referred to statements which had been made to him by call-in listeners to the effect that Weinberg had had cars towed from the restaurant parking lot. The burden is on the plaintiffs to prove the falsity of an allegedly libelous statement, see Philadelphia Newspapers v. Hepps, 475 U. S. 767 (106 SC 1558, 89 LE2d 783) (1986). Houck testified in his deposition that he believed this information to be accurate because of the consistency , of the remarks made on the subject by several different callers, and Weinberg himself implicitly confirmed the truth of these statements in his deposition. As the record contains no contrary evidence suggesting that the comments concerning car-towing were false, the trial court correctly concluded that they could not be considered defamatory.

2. While the expressions of opinion made during the broadcast were constitutionally protected, we cannot conclude as a matter of law that such protection extends to Houck’s exhortations to his listeners to “[g]o by and see this guy Weinberg at S & W on Roswell Road [and] [t]ell him he stinks,” to “go by and spit in his face for me,” and to “[g]o by there today and give a little five fingers in the face ... to [him].” An “utterance is not protected if it ‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ ” Walt Disney Productions v. Shannon, 247 Ga. 402, 404, fn. 2 (276 SE2d 580) (1981) quoting from Brandenburg v. Ohio, 395 U. S. 444, 447 (89 SC 1827, 23 LE2d 430) (1969). Accord Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (62 SC 766, 86 LE 1031) (1942) (holding that the First Amendment does not protect utterances which “tend to excite an immediate breach of the peace”).

Although it appears from the record that none of Houck’s listeners actually followed his advice to go to the restaurant and spit on Weinberg or confront him with insulting words and gestures, it does not follow that Weinberg had no reason to fear such a response. When Houck made the statement, “Go by there today and give a little five fingers in the face there to Bob Weinberg,” he was speaking to a specific call-in listener, who responded by stating: “Yeah, I might do that, for sure. . . .” Weinberg testified that numerous profane telephone calls were in fact directed to him following the broadcast, both at the restaurant and at his home, causing him to become “real nervous and shaky for about ... a week or ten days.” Construing the evidence most strongly against the appellees as movants on motion for summary judgment, and considering the fact that the remarks in question were made to the public at large over a commercial radio station in an apparent spirit of animosity, we believe a factfinder might reasonably conclude that they were likely to provoke an imminent breach of the peace.

For the same reasons, we further conclude that a factfinder might reasonably consider the statements sufficiently outrageous and egregious to support an award of damages for intentional infliction of emotional distress. A defendant may be held liable for the tort of intentional infliction of emotional distress where his conduct is “of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” (Emphasis from original.) Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541) (1988). The plaintiff in Moses had received a threatening message from his former boss on his telephone answering machine advising him to quit soliciting his former employer’s customers “or you are going to find your butt in court or your neck broken somewhere.” We held that, “ [considering the totality of the circumstances . . . , including the language used in the offensive message, the means by which the message was delivered to plaintiff and the relationship of the parties, . . . the threatening and offensive language used in this instance could not have reasonably and foreseeably resulted in the mental distress of which [the plaintiff complained] because the offending message did not, as a matter of law, rise to the requisite level of outrageousness and egregiousness.” Id. at 225-6. Compare Greer v. Medders, 176 Ga. App. 408 (336 SE2d 328) (1985).

In contrast to the statements in Moses, supra, the statements at issue here were not mere warnings left on an answering machine by an individual with whom the plaintiff had an existing personal or business relationship. Taken at face value, they were instead exhortations to the public at large to go to Weinberg’s place of business and confront him in a hostile and insulting, if not assaultive, manner. Of course, reasonable men and women might differ as to whether these exhortations were meant literally and whether they were reasonably likely to be acted upon by members of the listening public. However, “[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Restatement of Torts (Second), § 46, Comment b. Accordingly, we hold that the trial court erred in granting summary judgment to the defendants on plaintiff Weinberg’s claim for actual and punitive damages for intentional infliction of emotional distress.

3. Since there was no physical injury involved in this case, and since this state recognizes no cause of action for negligent infliction of emotional distress, see Hamilton v. Powell, Goldstein, Frazer, & Murphy, 252 Ga. 149 (311 SE2d 818) (1984), summary judgment was properly granted to defendants on plaintiffs’ negligence claim.

4. The defendants were also entitled to summary judgment on the plaintiff’s invasion of privacy claims. “[A] constitutionally privileged statement of opinion cannot form the basis of a claim for invasion of privacy by placing a person in a false light.” Ault v. Hustler Magazine, 860 F2d 877, 880 (9th Cir.), cert. den., 109 SC 1532 (1988). Moreover, the plaintiffs waived their right to be “let alone” in regard to the operation of their restaurant by inviting and advertising for public patronage. See Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68) (1905).

5. The plaintiffs’ claim for damages for tortious interference with business relations is based on the loss of patronage which the restaurant allegedly suffered as the result of the derogatory statements regarding the quality of its food and service. Inasmuch as these statements were constitutionally protected expressions of opinion, the trial court similarly did not err in granting summary judgment to the defendants on this claim. See Nager v. Lad n’ Dad Slacks, 148 Ga. App. 401 (1) (251 SE2d 330) (1978).

6. For the foregoing reasons, we hold that the lower court erred in granting summary judgment to the defendants on plaintiff Weinberg’s claims for damages for intentional infliction of emotional distress but that the court correctly granted summary judgment to the defendants on each of the plaintiffs’ remaining claims.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

While I generally share the views of the majority opinion, the present status of the law appears to support the dissent.

Appellee argues that the case of Hustler Magazine v. Falwell, 485 U. S. 46 (108 SC 876, 99 LE2d 41) (1988), although involving a “pub-lie figure,” may also apply to a “private figure.” Assuming arguendo this is true, this could leave the door ajar for open season on private as well as public figures. As to public figures under Falwell, with the exception possibly of stating that one is a crook or has committed a crime, almost anything may be said. The language in Falwell (suggesting in a magazine article that Falwell’s first sexual experience was incest with his mother in an outhouse), although labeled a parody, is far more harsh and severe than what is charged in the instant case (suggesting that the owner of a restaurant should be spit upon, that the gumbo tasted like yesterday’s slop, that he should receive the five-finger award, and that “he stinks”). Acknowledging that there exists a heavier duty placed upon radio and television media toward protecting the public than the responsibility bearing upon the magazine and newspaper industry (the former uses airwaves belonging to the public and is regulated, which is inapplicable to the latter), Miami Herald Pub. Co. v. Tornillo, 418 U. S. 241 (94 SC 2831, 41 LE2d 730) (1974); Brandywine-Main Line Radio v. Fed. Communications Comm., 473 F2d 16, 64 (1972), nevertheless, the protected speech cases of the United States Supreme Court providing wide latitude are binding upon this court, whether we agree with them or not. Chief Justice Burger has cautioned that the only acceptable remedy is “a spirit of responsibility . . . and civility ... on the part of those who exercise the guaranteed freedoms of expression.”

The holding in Texas v. Johnson, 491 U. S. — (109 SC 2533, 105 LE2d 342) (1989) (that the flag of the United States may be burned, with protestors chanting, “America, the red, white, and blue, we spit on you”), is again seemingly stronger and more unsavory, and therefore more likely to cause emotional distress to the several witnesses (some of whom may have fought for their country and their flag), than what was said in the case under consideration. The threats made in Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222 (369 SE2d 541) (1988) (that if you do not refrain from doing certain things you will “find your butt in court or your neck broken somewhere” (emphasis supplied)), again appear to be language that is more frightening and horrifying and that should receive less protection than the statements made in the case we now review. These are a direct and immediate threat to a specific person to break his neck or kill him, and the holding in Moses was that this did not state an actual case for “emotional distress,” as the severity requirements were not met,

The whole-court case of Brooks v. Stone, 170 Ga. App. 457, 458 (317 SE2d 277) (1984) (containing “we love to hump bitches in heat. Say, Ms. Brooks, when do you come in season?”), held that there was a jury question. The latter case involved libel and was only a physical precedent, inasmuch as two judges concurred in the judgment only; and, even if applicable to emotional distress, Brooks is because of the 4-2-3 split vote not controlling. However, Moses is a binding precedent and appears to be on point and therefore must be either overruled or followed. Compare Davenport v. State, 184 Ga. App. 214 (361 SE2d 219) (1987), the majority opinion and special concurrence, as to allegedly obscene language used relating to and bearing on “fighting words” and inciting an immediate breach of peace. Reluctantly, on the basis of the cases cited and reviewed and on the Moses case in particular, I agree with Judge Pope’s dissent that the judgment should be affirmed.

Pope, Judge,

dissenting.

I conclude that all of defendant Houck’s comments were constitutionally protected. I do not agree that any of Houck’s comments can reasonably be considered actionable as fighting words or as threats sufficient to support a claim for intentional infliction of emotional distress. Under the “fighting words” exception to First Amendment protection, for a comment to lose the constitutional protection of freedom of speech it must be “directed to inciting or producing an imminent lawless action and [must be] likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (89 SC 1827, 23 LE2d 430) (1969). Houck’s invitation to his listeners to go by the restaurant and “give a little five fingers in the face there to Bob Weinberg” and to “go by and spit in his face for me” (see footnote) did not incite imminent lawless action. It could not reasonably have been interpreted by the listeners to the program as an imminent direction to assault Weinberg but was simply hyperbole or a mocking exaggeration of Houck’s negative opinion of Weinberg and the restaurant.

The comments that Houck was “going to come up there and kick his you-know-what” and that he was “gonna come see [him] personally after this ...” (see footnote) do not, in. my opinion, meet the severity test for creating a jury issue for emotional distress as set forth by this court in Moses v. Prudential Ins. Co., 187 Ga. App. 222 (369 SE2d 541) (1988). When the totality of the circumstances are considered, pursuant to the standard set forth in Moses, these comments, again, must be considered as hyperbole or sarcastic humor. Moreover, the comments made by Houck in a radio station studio some distance away from the plaintiff, who was at his restaurant, did not create a clear and present danger of personal injury to the plaintiff and are therefore not actionable. I believe “the defendants’ motions for summary judgment were correctly granted by the trial judge, because it cannot be said that the statements uttered during the course of this [radio] program gave rise to a clear and present danger of personal injury to the plaintiff.” Walt Disney Productions v. Shan non, 247 Ga. 402, 404 (276 SE2d 580) (1981). These comments, while obnoxious, could not reasonably be interpreted as fighting words. And the mere fact that they were offensive, without creating a clear and present danger of physical harm, does not strip them of their constitutional protection. See Hustler Magazine v. Falwell, 485 U. S. 46 (108 SC 876, 99 LE2d 41) (1988). Consequently, I would hold that defendants are entitled to summary judgment on all claims.

Decided December 20, 1989

Rehearing denied January 17, 1990

Carr, Tabb & Pope, W. Pitts Carr, Erick E. Huber, for appellants.

Powell, Goldstein, Frazer & Murphy, James C. Rawls, Frank Love, Jr., Jennifer F. Weiss, Steven J. Labovitz, for appellees.

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

       Those comments specifically objected to by plaintiffs are as follows:
      1. “But this guy named Bob Weinberg who owns S & W Seafood up on Roswell Road, where I’ve been before and where I must tell you the truth. Where the gumbo tastes like yesterday’s leftover ‘blach’ is just a total ass. . . .”

        2. “Yeah, that that gumbo they have up there tastes like it’s yesterday’s slop.”
      3. “[It’s] these kind of restaurateurs that give people in the profession a bad name.”
      4. “I have never seen anything like it — S & W. . . . [T]he manager just personally insulted our coordinator, Marcy Rubin. Let me go up there and catch you myself man. . . . We need rotten tomatoes or apples to go bombard the place. ... I am gonna come see you personally after this buddy.”
      5. “Not only did one of his managers there insult our coordinator, Marcy Rubin, but this guy Bob Weinberg, who owns the place S & W is an ass.”
      6. “The guy is rude, the guy is . . . obviously . . . lucky that he has made it this far in the restaurant business obviously.”
      7. “But they have been acting pretty horrendous today. Particularly a guy named Bob Weinberg at the S & W Restaurant on Roswell Road.”
      8. “[H]e tows away cars every night . . . parked there long after the restaurant is closed.”
      9. “Just go by and spit in his face for me will you? . . . I’m sorry I’m so mad, but this guy was just absolutely terrible . . . but this guy was really bad news.”
      10. “Another part of the owner’s conspiracy to get back at me. ... I am not going to take any calls ‘cause I know this guy is out there is calling his friends and saying, ‘Get through, get through, get through, get through.’ ”
      11. “I am going to try to get him on the show. I guess ... I should wear a catcher’s mask or . . . [w]hat should I wear ... a plate of armor? . . .. Bullet proof vest?”
      12. “I am going to figure out whether I need to be in some kind of little bullet proof room here. But I have heard some horror stories about him off the air, not on the air, but off the air.”
      13. “[W]e also have not been able to reach anybody thus far at the S & W . . . we’re finding that they’re not willing to come to the telephone just yet. What a bunch of cowards in the restaurant business in this town. They’re giving the . . . restaurant business a bad name around here, I tell you they’re really giving them a bad name.”
      14. “Anybody up there, near there right now, would you do me a favor. Particularly if you’re on a mobile phone. Would you go into that restaurant right now, the S & W Seafood Restaurant on Roswell Road and find out who that manager is and tell him that I am going up there and kick his you-know-what.”
      15. “Now one more thing I want to tell you, I really mean this, Okay. Go by and see this guy Bob Weinberg at S & W on Roswell Road. Tell him he stinks.”
      16. “We’ve met some angry restaurateurs today . . . particularly this guy Bob Weinberg up here at S & W Restaurant on Roswell Road. The guy must be really insecure.”
      17. “[T]hey have been acting pretty horrendous today. Particularly a named Bob Weinberg at the S & W Restaurant on Roswell.”
      18. “A big finger . . . still goes to you know who, on Roswell Road, S & W.”
      19. “Go by there today and give a little five fingers in the face there to Bob Weinberg.”


author: Deen, Presiding Judge.

text:
    A89A1740, A89A1741.
    O’STEEN v. RHEEM MANUFACTURING COMPANY; and vice versa.
    (390 SE2d 248)
   Deen, Presiding Judge.

On April 4, 1985, Ms. O’Steen, appellant in Case No. A89A1740, was driving along the roadway which traversed the parking lot owned by, and located adjacent to the plant of, her employer, appellee/crossappellant Rheem Manufacturing Company (Rheem). As she approached a side road (also within the parking lot), a car driven by a fellow employee (not a party to the instant appeal) entered the road on which she was travelling and collided with her vehicle. In December 1986, after her workers’ compensation claim was denied under the “lunch break” rule, Ms. O’Steen brought an action against Rheem and the driver of the other vehicle, alleging against the latter negligence in failing to keep a proper lookout, failure to yield to a vehicle on his right, and failure to maintain control of his vehicle; and against Rheem, negligence in permitting large trucks to be parked where they blocked the view of the intersection and failing to post traffic signs and markers to indicate right-of-way, etc. Rheem unsuccessfully moved for summary judgment, arguing primarily that O’Steen, having worked at the site for more than six years and having passed through the intersection in question more than 5,000 times, had knowledge of the purported hazard equal to or greater than that of her employer. In January 1987, before the case actually went to trial, O’Steen suffered a job-related injury, and damages for this injury were also sought in conjunction with the 1985 incident.

Upon trial, a Fulton County jury awarded O’Steen damages of $217,587. The trial court granted judgment notwithstanding the verdict in favor of Rheem, and both parties appeal. In Case No. A89A1740 Ms. O’Steen enumerates seven errors having to do with the “equal knowledge rule,” both facially and in its application to the instant case, alleging that the “equal knowledge rule” should have barred the award of judgment n.o.v. In Case No. A89A1741, Rheem enumerates as error the trial court’s denial of its motion for directed verdict (made at the close of plaintiff O’Steen’s case) on the ground that the Workers’ Compensation Act barred plaintiff’s recovery of damages for expenses incurred on or after January 15, 1987; and the subsequent granting of a directed verdict against Rheem on that issue. Rheem also enumerates as error the trial court’s failure to give seven jury instructions it had requested. Held:

1. Chiefly at issue in the instant case is the applicability vel non of the “superior/equal knowledge rule.” Rheem argues that this rule absolves the company of liability, inasmuch as O’Steen had passed through the crucial intersection at least 5,000 times during the course of her employment and therefore was well aware of any potential hazard that might have existed. O’Steen, on the other hand, argues that the rule should be abolished or held inapplicable to the instant cases.

In Clark v. Carla Gay Dress Co., 178 Ga. App. 157 (342 SE2d 468) (1986), the “superior/equal knowledge rule” was invoked as a defense against an employee’s allegation that the employer had been negligent in allowing on the business premises her apparently mild-mannered estranged husband, who suddenly pulled a gun and shot her. Although so different factually from the instant cases as not to be apposite in its particulars, Carla Gay nevertheless incorporates so comprehensive and well-reasoned an analysis of the “superior/equal knowledge rule” that it serves well to point the way to the proper disposition of the cases at bar. We quote at length from pages 158-160:

“We have stated the rule many times with respect to defects, foreign substances on floors, and static dangerous conditions, that ‘(t)he basis of the proprietor’s liability is his superior knowledge and if his invitee [or licensee] knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee [or licensee] has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. (Cits.)’ Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 573 (56 SE2d 828). See Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 (321 SE2d 830).
“In such cases, liability attaches when the perilous condition is not known to the invitee and is known to the proprietor, or is discoverable by the proprietor in the exercise of ordinary care to inspect and keep the premises safe. Alterman Foods v. Ligón, 246 Ga. 620 (272 SE2d 327). If the invitee [or licensee] is as aware of the danger as is the proprietor, but proceeds in spite of such knowledge, he assumes the risks and dangers incident to the known conditions (Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (288 SE2d 846)), and is therefore deemed guilty of a failure to exercise ordinary care for himself and cannot recover. OCGA § 51-11-7; Brownlow v. Six Flags Over Ga., 172 Ga. App. 242, 243 (322 SE2d 548); Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721).
“The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care. It is applicable in those cases where the proprietor allows a dangerous condition to exist, including cases where the alleged dangerous condition is one created by the activities of third persons, so long as the condition is one which the invitee can expect equally with the host, or come to know of, and therefore must anticipate the danger. In other words, the condition even if created by third parties must be such that the invitee can indeed have equal knowledge and either assumes the risk or can avoid the danger with ordinary care ... In all such cases, if there is proprietor’s liability, it is based on his superior knowledge of the existence of a dangerous condition, for ‘if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. (Cits.)’ [Ramsey v. Mercer, 142 Ga. App. 827, 829 (237 SE2d 450)] . . .
“The ‘equal knowledge rule’ then is the practical application of a rule that a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant’s negligence. OCGA § 51-11-7.”

As applied to the instant cases, the key phrase is “avoid with exercise of ordinary care.” Despite Rheem’s elaborate diagrams purporting to show alternative routes Ms. O’Steen might have taken (alternatives whose existence O’Steen denies), it is unreasonable to expect that Ms. O’Steen would eschew the familiar route and take a circuitous and apparently less-than-obvious route through the parked cars rather than the route customarily used by employees when traversing the parking area. Heavy indeed would be the burden of proving that such an extreme of avoidance would be required under the standard of “ordinary care.” See Herrington v. Stone Mtn. Memorial Assn., 119 Ga. App. 658 (168 SE2d 633), rev’d on other grounds, 225 Ga. 746 (171 SE2d 521) (1969).

On the other hand, using an alternate route was not the only means available to Ms. O’Steen of avoiding danger through the exercise of ordinary care. Although there was conflicting testimony regarding the speed at which Ms. O’Steen was traveling at, or immediately prior to, the moment of collision, the exercise of ordinary care would dictate that at any intersection where visibility is impeded to any degree and for any reason — a fortiori at a “blind” intersection at which cars had previously been seen entering from a side street or driveway — the prudent driver would slow down sufficiently (coming to a full stop, if necessary) to enable him or her to determine visually that the intersection, to as near an absolute certainty as possible, was clear. In such a situation, absent disciplined habits on the driver’s part, the presence of stop signs or other traffic markers would make little if any difference. Chisholm v. Fulton Supply Co., 184 Ga. App. 378 (361 SE2d 540) (1987). See also Osburn v. Pilgrim, 246 Ga. 688 (273 SE2d 118) (1980).

Thus as between O’Steen and Rheem the trial court properly found on the part of the latter no actionable negligence which might provide a basis for recovery by O’Steen. See Harmon v. Reames, 188 Ga. App. 812 (374 SE2d 539) (1988). Regarding liability as between O’Steen and the other driver, that is not an issue before us. In Case No. A89A1740 we find no merit in Ms. O’Steen’s enumerations of error, either in whole or in part.

2. In Case No. A89A1741 we find no merit in Rheem’s five enumerations of error having to do with the Workers’ Compensation Act. The record reveals that, in the evidentiary posture of the case, the trial court’s direction of a verdict concerning plaintiff’s damages incurred during or subsequent to her 1987 accident was proper. See OCGA § 9-11-50.

3. Scrutiny of the record indicates that the trial court gave the substance of the jury charges the omission of which Rheem challenges, insofar as such instructions were appropriate and permissible. Moreover, the award of judgment notwithstanding the verdict in favor of Rheem renders moot the sixth and seventh enumerations.

Decided January 3, 1990

Rehearing denied January 17, 1990

Reynolds & McArthur, Charles M. Cork III, 0. Wendell Horne III, for appellant.

Jones, Cork & Miller, Carr G. Dodson, Bradley J. Survant, for appellee.

Judgment affirmed.

Birdsong and Sognier, JJ., concur.

       [Since the issue was not raised below or on appeal, we do not address whether O’Steen’s status was that of invitee or licensee. Assuming arguendo that it was the latter, the Carla Gay argument would apply even more strongly than otherwise, since it is axiomatic that the proprietor’s duty owed to a licensee is less than that owed an invitee.]

       We recognize that issues of negligence and ordinary care are usually for the jury to decide. It is well settled, however, that in “plain and palpable cases” the existence vel non of negligence or ordinary care may be decided by the court rather than by the jury. Hargrove v. Tanner, 98 Ga. App. 16 (104 SE2d 665) (1958).


text:
    A89A1743.
    McCOY v. THE STATE.
    (390 SE2d 251)
   Banke, Presiding Judge.

The appellant brings this appeal from his conviction of child molestation. Held:

1. The appellant contends that the trial court erred in denying his motion for directed verdict of acquittal. The evidence showed that during an episode of “play fighting” with the victim, the appellant placed the victim’s shirt in her mouth, restrained her, and fondled her vagina. The victim struggled with the appellant, broke free from him, and immediately told her younger sister what had transpired. Later that same day, the victim reported the incident to her mother. She was thereafter examined by an emergency room nurse, who observed that the child’s vaginal area was inflamed and that she had a two-inch bruise on her left hip. We conclude that, from the evidence as a whole, a rational trier of fact could have determined beyond a reasonable doubt that the appellant was guilty of child molestation. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We consequently hold that the trial court did not err in refusing to direct a verdict of acquittal.

2. The appellant enumerates as error the admission of evidence that he had twice pinched the victim on her breast prior to the act of molestation for which he was on trial. He contends that the state failed to notify him, in accordance with Rule 31.3 of the Uniform Superior Court Rules, of its intention to introduce such evidence. Assuming arguendo that the admission of this testimony was improper, we conclude that in the context of the other evidence in the case it was harmless, i.e., that it is “highly probable” the evidence did not contribute to the verdict. See Minter v. State, 258 Ga. 629 (2) (373 SE2d 359) (1988).

3. The appellant enumerates as error the admission of testimony from various witnesses regarding out-of-court statements made by the victim, contending that this evidence violated his due process right of confrontation and improperly bolstered the victim’s in-court testimony.

Decided January 3, 1990

Rehearing denied January 17, 1990

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

“Pursuant to OCGA § 24-3-16, a statement made by a child under the age of 14 to another concerning sexual contact or physical abuse is admissible if the child is available to testify and the court finds sufficient indicia of reliability in the statement.” Morgan v. State, 189 Ga. App. 795, 796 (1) (377 SE2d 707) (1989). It is well settled that the admission of such evidence under these circumstances does not violate the constitutional right of confrontation “if the witness testifies at trial and is subject to cross-examination.” Reynolds v. State, 257 Ga. 725, 726 (3) (363 SE2d 249) (1988). This enumeration of error is accordingly without merit.

4. The appellant contends that the state’s attorney made certain improper remarks regarding his defense counsel during closing argument. However, the transcript reveals that after counsel objected to these remarks, the state abandoned the subject and made no further such remarks. “Whether overruled or sustained, a mere objection to alleged improper argument by the State in a criminal case raises on appeal only the issue of whether the trial court erred in failing to sustain the objection so as to require the State’s counsel to desist from the argument, not whether the trial court erred in failing to take any other additional curative actions.” Hall v. State, 180 Ga. App. 881, 883 (350 SE2d 801) (1986). As the appellant requested no curative instructions, and as the state abandoned this line of argument in response to his objections, this enumeration of error presents nothing for review.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1804, A89A2047.
    TAYLOR v. STATE OF GEORGIA (two cases).
    (390 SE2d 601)
   Banke, Presiding Judge.

On October 5, 1988, the appellant, William T. Taylor, a principal in Taylor Bonding Company, agreed to be held as surety for the appearance of Dennis Byers in the Superior Court of Gordon County on a case pending against him for violations of the Georgia Controlled Substances Act. On December 30, 1988, copies of the criminal trial calendar for the week of January 9, 1989, through January 13, 1989, were mailed to the appellant at the address he had provided on the bond, as well as to his business address at Taylor Bonding Company. The case against Byers was on that calendar and was called both on January 9, 1989, and on January 12, 1989; however, Byers was not present in court on either occasion. The trial court consequently issued an order for an “execution hearing” on the bond. Notices of the hearing were mailed to the appellant at the same two addresses to which the copies of the trial calendar had been sent, and it is apparent without dispute that he received at least one of these notices. Based on Taylor’s failure to secure Byers’ presence at the execution hearing, the trial court announced its intention to enter an order forfeiting the bond. The appellant thereupon filed a “Motion for Continuance or Motion in Opposition to Entry of Judgment of Bond Forfeiture,” which was denied by the trial court. The appellant filed notices of appeal both from that ruling and from the court’s subsequent entry of a final judgment against him on the bond. Held:

1. The first appeal, docketed as Case No. A89A1804, is dismissed on the ground that it was taken from an order of judgment which was not directly appealable. See generally OCGA § 5-6-34 (a).

2. The appellant contends that the trial court erred in entering judgment on the bond because he was not given proper notice of Byers’ trial date. Pursuant to OCGA § 17-6-70, the surety must be given at least 72 hours’ written notice before the time that the principal is scheduled to appear in court. In addition, Rule 32.1 of the Uniform Superior Court Rules provides that a bondsman shall receive notice of the trial calendar either in person or by mail. The record in this case establishes that a copy of the trial calendar was mailed to the appellant 10 days prior to Byers’ scheduled trial date. Accordingly, this enumeration is without merit.

3. The appellant asserts that the bond should not have been forfeited because Byers’ case was called out of order on the trial calendar in contravention of OCGA § 17-8-1. That Code section directs that “[t]he cases on the criminal docket shall be called in the order in which they stand on the docket unless the defendant is in jail or otherwise in the sound discretion of the court.” (Emphasis supplied.) We find nothing in this language which would establish a defense to the appellant’s liability on the bond, regardless of the order in which the cases on the calendar were called.

4. In his final enumeration of error, the appellant contends that the trial court abused its discretion in failing to grant him a continuance to secure Byers’ appearance. The appellant asserted that he had been unable to produce Byers in court due to the actions of certain law enforcement officials. However, the only evidence offered in support of this assertion consisted of the appellant’s testimony that “we were held off for over thirty days going into Florida to keep from messing up ongoing investigations some other people had. ...” This testimony was wholly insufficient to establish that Byers was in the custody or control of police or other law enforcement officials at any time relevant to these proceedings. See generally OCGA § 17-6-31. Compare Troup Bonding Co. v. State of Ga., 121 Ga. App. 25 (172 SE2d 476) (1970). Accordingly, this enumeration of error is also without merit.

Decided January 2, 1990

Rehearing denied January 17, 1990

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Appeal dismissed in Case No. A89A1804. Judgment affirmed in Case No. A89A2047.

Sognier and Pope, JJ., concur.


text:
    A89A2241.
    EMPLOYERS INSURANCE OF WAUSAU v. DAWSON.
    (390 SE2d 261)
   Sognier, Judge.

Warren Dawson was injured in a collision with a truck owned by Ray Thompson Trucking Company (“Thompson Trucking”), a motor contract carrier. He brought suit directly against Thompson Trucking’s liability insurer, Employers Insurance of Wausau, A Mutual Company (“Wausau”), pursuant to OCGA § 46-7-58 (e). The jury returned a verdict in favor of Dawson, and Wausau appeals.

The record reflects that appellee dismissed without prejudice his suit against Thompson Trucking, and that the statute of limitation subsequently ran as to the motor carrier. Appellant argues that because its insured’s liability could no longer be legally established, appellant was no longer contractually obligated to Thompson Trucking under the insurance policy, and thus it could not be liable to appellee for any damages incurred in the collision. Based on the argument that it had a complete contractual defense to appellee’s claim, appellant asserts the trial court erroneously denied its motions for summary judgment and for a directed verdict and acted improperly in excluding evidence of its contractual defense and in its charge to the jury. We find no merit in appellant’s argument.

Although the extensive briefs in this case fail to cite it, we find this appeal indistinguishable from Griffin v. Johnson, 157 Ga. App. 657 (278 SE2d 422) (1981). In that case, the plaintiff brought suit against the liability carrier and the motor carrier on the day the statute of limitation was to expire. The motor carrier was never served and was subsequently dismissed from the action. We reversed the trial court’s dismissal of the action as to the liability carrier, and, citing Great American Indem. Co. v. Vickers, 183 Ga. 233 (188 SE 24) (1936), held that the plaintiff in Griffin “need not obtain a judgment against the carrier in order to impose liability on the insurer.” Id. at 658 (3). “The sustaining.of actionable injury is, under the statute, the only condition precedent to a suit on the policy.” Vickers, supra at 236. In this case, as in Griffin, an actionable injury existed at the time the suit was instituted. See also Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 829 (1) (360 SE2d 280) (1987).

Decided January 4, 1990

Rehearing denied January 17, 1990

Appellant directs this court’s attention to Addington v. Ohio Southern Express, 118 Ga. App. 770 (165 SE2d 658) (1968), arguing it supports its position. Addington is distinguishable, however, in that the statute of limitation had run against the motor carrier prior to the filing of the plaintiff’s claim against the insurance carrier. The nonexistence of any cause of action against the tortfeasor/motor carrier prior to institution of suit against the motor carrier’s insurer is the distinguishing point for cases such as Harris v. Sampson, 162 Ga. App. 241, 244 (290 SE2d 165) (1982) and Tuck v. Cummins Trucking Co., 171 Ga. App. 485, 486-487 (320 SE2d 265) (1984). (We note that the language in OCGA § 46-7-58 is identical to that in OCGA § 46-7-12 for motor common carriers and is derived from these statutes’ predecessors, Ga. Code Ann. §§ 68-509 and 68-612, respectively.)

“ [I]t has long been recognized that, pursuant to [OCGA § 46-7-58 (e)], an action on the policy itself against the insurer of a motor carrier is cognizable as an independent suit without joinder of the motor carrier. [Cits.]” Thomas v. Bobby Stevens &c. Contractors, 165 Ga. App. 710, 714 (2) (302 SE2d 585) (1983). Such a suit is an independent ex contractu action on the policy itself and is non-ancillary to the ex delicto action against the motor carrier. Id. Where the condition precedent to suit against a motor carrier’s insurer is met, i.e., an actionable injury exists at the time suit is filed, see Vickers, supra, neither institution of a suit nor maintenance of a suit against the motor carrier is necessary to pursue a viable cause of action against the motor carrier’s insurer. Accordingly, the trial court did not err for any of the reasons enumerated by appellant.

Judgment affirmed.

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

Talbot & Ladson, Thomas W. Talbot, Larry W. Rowe, Swift, Currie, McGhee & Hiers, James T. McDonald, Jr. for appellant.

Lamar Gibson, for appellee.