text:
    A95A0082.
    SOUTHERN RAILWAY COMPANY v. HAND.
    (454 SE2d 217)
   Blackburn, Judge.

Southern Railway Company d/b/a Norfolk Southern Railroad Corporation (Southern) appeals the judgment entered against it on the jury’s award of $350,000 to Dale Hand. Hand brought the underlying action to recover damages for injuries he sustained when the high-rail truck in which he was riding suddenly stopped, throwing him to the ground. The truck stopped because the passenger-side outrigger was in a lowered position, thus allowing it to hit a switch tie.

1. In its first enumeration of error, Southern contends the trial court erred in denying its motion for directed verdict and motion for j.n.o.v. on the issue of Hand’s status as a borrowed servant. On the date of the injury, Hand was employed by Bankhead Maintenance Company as a foreman of welding crews. He was working on Southern’s rail as a part of his job with Bankhead. However, Southern contends that Hand was actually a borrowed servant which would preclude the present action pursuant to OCGA § 34-9-11 (a).

“ ‘A special master employing a special servant who is a general servant of a general master ... is not such a third person against whom a common-law action will lie under the provisions of the (Workers’) Compensation Law, as provided in (OCGA § 34-9-11 (a)).’ Scott v. Savannah Elec. &c. Co., 84 Ga. App. 553, 557-558 (66 SE2d 179) (1951). ‘Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him. (Cits.)’ Merry Bros. Brick &c. Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969). ‘(I)n order for an employee to be a borrowed employee, the evidence must show that “(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.” (Cit.)’ Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981). Moreover, ‘in order for a borrowed servant to be precluded from suing the special master in tort there must be notice to and assent by the borrowed servant as to the special relationship.’ Six Flags Over Ga. v. Hill, supra at 378 (2) (citing and distinguishing Georgia-Pacific Corp. v. Corbin, 137 Ga. App. 37 (222 SE2d 862) (1975)).” Rothrock v. Jeter, 212 Ga. App. 85, 86-87 (441 SE2d 88) (1994).

In the present case, Hand testified that (1) he received his daily work assignments from Southern employees; (2) Southern employees took him to the job site on many occasions, such as the day he was injured; (3) Southern employees helped him unload the truck and prepare his work site; (4) Southern employees could, if they needed to, move him to another job or remove him from a job; and (5) Southern employees could make him redo a job.

Southern maintains that Hand’s testimony was sufficient to prove that he was a borrowed servant. We cannot agree. Hand’s testimony failed to establish both that Southern had the exclusive right to discharge him, and that Bankhead had no control and direction over him for the occasion at issue. These elements were required in order to establish that Hand was a borrowed servant. See Six Flags Over Ga., supra. Therefore, the trial court did not err in denying Southern’s motion for directed verdict and j.n.o.v., as Southern failed to satisfy its burden of proof on the issue of Hand’s status as a borrowed servant.

2. Southern contends that Hand was its statutory employee and as such the trial court erred in denying its motions for directed verdict and j.n.o.v. on the issue of liability.

“By its terms, OCGA § 34-9-8 (a) provides for secondary liability for an injured employee’s workers’ compensation benefits. Only an entity who is secondarily liable for workers’ compensation benefits under OCGA § 34-9-8 (a) is consequently entitled to tort immunity under OCGA § 34-9-11. As recognized originally in Evans [v. Hawkins, 114 Ga. App. 120 (150 SE2d 324) (1966)] and subsequently in Manning [v. Ga. Power Co., 252 Ga. 404 (314 SE2d 432) (1984)], it is only a ‘contractor’ who is secondarily liable for workers’ compensation benefits and who is, therefore, entitled to tort immunity. An owner who is merely in possession or control of the premises would not be subject to workers’ compensation liability as a statutory employer and would not be immune from tort liability. However, this would not be the result of his status as an ‘owner,’ but of his lack of status as a ‘contractor.’ ” Yoho v. Ringier of America, 263 Ga. 338, 341 (434 SE2d 57) (1993).

“An ‘owner’ does not attain ‘contractor’ status under OCGA § 34-9-8 (a) by [its] active involvement in the enterprise, but only ‘ “in the isolated situation where [it] also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.” (Cit.)’ (Emphasis supplied.) Manning v. Ga. Power Co., supra at 406.” Yoho, supra at 341. Southern argues that because CSX also uses the rail lines and that its contract with CSX requires it to keep the lines in working order, as a “contractor,” it hired Bank-head, thereby making Hand a statutory employee. However, Southern failed to introduce any evidence which showed that it was CSX’s contractor for the purposes of maintaining the rail lines. Therefore, the trial court correctly denied Southern’s motions on this issue.

3. Southern contends that the trial court erred in failing to grant its motions for directed verdict or j.n.o.v. on the issue of liability, due to Hand’s failure to prove any negligence. Hand did not produce direct evidence of Southern’s negligence, but relied on circumstantial evidence.

Southern’s truck was equipped with outriggers on the driver and passenger sides in order to stabilize it while lifting heavy objects. However, before driving the vehicle, the outriggers should be raised. The outriggers on both the driver and passenger sides could be raised and lowered by knobs on either side of the truck which move the outriggers only while pressure was applied to the knob.

On the day of the incident, a Southern employee drove the truck to the worksite to pick up Hand and heavy equipment. The employee lowered the outriggers and loaded the heavy equipment onto the truck. Hand saw the Southern employee “letting the (passenger side) outrigger up.” Hand asked the employee for the time, but did not notice if the outrigger was raised to its highest position. The Southern employee testified that the passenger-side outrigger was fully up before he went to the driver’s side of the truck. The driver’s-side outrigger became stuck on a bolt during its ascent. Another Southern employee used a crow bar to free the outrigger. The Southern employees were using the crow bar in the area where the levers used to control the passenger-side outrigger were located. Once the driver’s-side outrigger was raised, the Southern employee proceeded to back the truck along the tracks. After proceeding for approximately 147 feet, the outrigger on the passenger side struck a switch box which stopped the truck and propelled its passengers out of the truck bed. The outrigger was a little more than half-way down from the raised position. Southern’s mechanic was unable to find any mechanical malfunction in the truck or its outriggers which would have allowed the outrigger to descend on its own.

“Negligence is not to be presumed, but is a matter for affirmative proof.” (Citations and punctuation omitted.) Ellis v. Sears Roebuck & Co., 193 Ga. App. 797 (1) (388 SE2d 920) (1989). We have previously recognized that mechanical devices “get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone.” Id. at 797-798. However, in the present case, there was no evidence of mechanical malfunction, as in the Ellis case.

In Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232, 233 (367 SE2d 539) (1988), the Georgia Supreme Court stated that “[t]he standard for reviewing the legal sufficiency of circumstantial evidence, which is sole support for the finding under review, can be stated as follows: ‘While in such cases the sufficiency of the evidence is for the jury, yet before there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the conclusion claimed. . . . [Radcliffe v. Maddox, 45 Ga. App. 676, 681-682 (165 SE 841) (1932).]’ As further held in Radcliffe, ‘In neither criminal nor civil cases is it required that the proved circumstances shall show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration. In civil cases all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories. Where a decision is required between two or more antagonistic theories, an authorized finding that the evidence preponderates to one theory as against all the others necessarily carries with it a finding that the rejected theories are excluded. Id. at pp. 682-683.’ ” (Emphasis supplied.)

In the present case, there was “proved circumstances of real and actual probative value” that would allow “the jury to find that the preponderance of the evidence” was in favor of finding negligence on the part of the Southern employee whose responsibility it was to secure the outriggers. See id. Therefore, the trial court correctly denied Southern’s motions on the issue of negligence.

4. The trial court did not err in failing to charge the jury with Southern’s requests to charge regarding the burden of proof and the existence of two opposing theories. Reviewing the trial court’s charge as a whole, it sufficiently set forth Hand’s burden of proof. The trial court charged the jury regarding preponderance of the evidence, opinion testimony, circumstantial evidence, and negligence. This portion of the trial court’s charge accurately set forth the principles of law covered in Southern’s requested charges.

“It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error.” (Citation and punctuation omitted.) City of Dalton v. Smith, 210 Ga. App. 858, 859 (437 SE2d 827) (1993).

5. Southern contends the trial court erred in admitting in toto Hand’s medical records. However, the transcript is clear that the medical records were admitted for the record only and were not sent out with the jury. Pretermitting whether it was correct to admit the records, Southern has failed to show any harm by their admission only to the record, and not to the jury. Therefore, its enumeration of error is without merit. See Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993).

6. In its sixth enumeration of error, Southern asserts the trial court erred in admitting the testimony of Peter 0. Holliday III, M.D. Southern argues Dr. Holliday’s entire deposition should have been excluded as his opinion was based on the opinion of other doctors. Southern did not specify any specific portion of Dr. Holliday’s testimony that was based on hearsay, but merely sought to exclude it in toto.

Dr. Holliday testified that he examined Hand, took Hand’s medical history, and reviewed Hand’s medical records. His testimony established an independent basis for his opinion. Furthermore, “[w]here a portion of the evidence is admissible and a portion inadmissible, objection to the evidence as a whole which does not limit itself to objectionable parts is insufficient.” (Citation and punctuation omitted.) Southern R. Co. v. Minor, 196 Ga. App. 183, 184 (395 SE2d 845) (1990).

7. Southern contends the trial court erred in allowing Hand’s counsel to testify as to a calculation of projected future lost wages. Southern’s objection is contained in the record only after closing arguments and the charge to the jury. Although Southern’s counsel refers to his earlier “objection,” such objection was not made on the record, nor does the transcript contain evidence of an objection at the time the complained of remarks were made.

During his closing argument, Hand’s counsel informed the jury at least twice that his figures were only for the purpose of examples. Therefore, pretermitting whether an objection was properly made, we find that the trial court did not abuse its discretion in allowing Hand’s counsel to give the jury an example of cost of living salary increases. See Central of Ga. R. Co. v. Cole, 191 Ga. App. 53, 57 (381 SE2d 60) (1989).

Decided February 22, 1995

Jones, Cork & Miller, Carr G. Dodson, H. J. Strickland, Jr., for appellant.

Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Charles M. Cork III, for appellee.

8. Southern contends the trial court erred in allowing Hand’s medical expenses as an item of damages to go to the jury as such damages had been paid by Bankhead Enterprises workers’ compensation carrier. In a tort action brought by the injured party against the alleged tortfeasor, the collateral source rule applies to allow the injured party an undiminished recovery of medical expenses. See Mixon v. Lovett, 122 Ga. App. 517, 519 (177 SE2d 826) (1970). Therefore, Southern’s eighth and ninth enumerations of error are without merit.

9. In two enumerations of error, Southern contends the trial court erred in allowing the issue of lost wages to go to the jury. Southern argues that as two doctors authorized Hand to return to work, the jury was not authorized to return a verdict for lost wages.

Similar to the medical expenses issue, Hand was entitled to recover all wages he may have lost as the result of his physical injury. See Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 407 (434 SE2d 450) (1993). Furthermore, Hand’s testimony that he was in too much pain to work properly rebutted the doctors’ testimony regarding his ability to return to work. See Southern R. Co. v. Oliver, 177 Ga. App. 729, 732 (341 SE2d 270) (1986).

In the present case, there was “proved circumstances of real and actual probative value” that would allow “the jury to find that the preponderance of the evidence” was in favor of finding that Hand was unable to work due to the pain caused by his injury. See Southern R. Co. v. Ga. Kraft Co., supra.

10. In Southern’s final enumeration of error, it contends the trial court erred in denying its motion for new trial based upon the general grounds. However, Southern fails to present any issue by this enumeration that has not been reviewed previously in this opinion. Therefore, we find that it is also without merit.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A2179.
    EQUICOR, INC. v. STAMEY.
    (454 SE2d 550)
   Smith, Judge.

Charles Stamey brought suit against Equicor, Inc., to recover the proceeds of a group insurance policy issued to him while he was employed with the Atlanta Police Department. Equicor appeals the trial court’s entry of judgment in favor of Stamey after a bench trial.

The policy was issued by the Equitable Life Assurance Society of the United States and administered by Equicor. In addition to life and accident benefits, the policy provides that if an employee for more than one year becomes “totally disabled by injury or disease” before age 65 so that he or she is “not able, presumably for life, to do any work for compensation or gain,” the group life insurance terminates, and the employee is instead entitled to disability benefits based on one-half the amount of the employee’s life insurance in effect immediately prior to disability. These benefits are payable in sixty equal monthly installments beginning either six months after the date the disability begins or the date the claim is approved, whichever is later. The amount is payable at the rate of $18.74 for each $1,000 of insurance.

In December 1990, Stamey, a motorcycle policeman, injured his left knee. He was hospitalized for several weeks and underwent rehabilitation for nine months. He has had several surgeries, remains in considerable pain, and has an “open prescription” for pain medication. He was retired from the Atlanta Police Department effective June 30, 1992, because of a permanent disability.

While with the police department, Stamey served as a dispatcher, did telephone work, and served as a patrolman. Failing portions of the examinations for sergeant, he never advanced beyond the rank of patrolman. He does have extensive education, including an accounting degree from Oglethorpe University, a law degree from John Marshall Law School, and a graduate degree in government administration from Georgia State University. However, he has never worked in these areas.

Equicor denied his claim for disability benefits under the policy, based on its conclusion that given Stamey’s education and the nature of his disability, he could work at certain sedentary jobs in other fields and that the policy required that to be eligible for disability benefits, he must be totally disabled from performing work of any kind. It informed Stamey that a condition of total disability had not been proved. This action ensued.

1. The trial court based its ruling in favor of Stamey on John Hancock Mut. Life Ins. Co. v. Poss, 154 Ga. App. 272 (267 SE2d 877) (1980). Relying on Mut. Life Ins. Co. of New York v. Barron, 198 Ga. 1 (30 SE2d 879) (1944), Equicor contends the trial court erred in its construction of the holding in Poss and ignored that in Barron. In Barron, the Supreme Court pointed out the material difference between policies providing disability payments when the insured is unable to carry on a particular occupation and those under which such payments are made if the insured becomes disabled from performing any gainful work or occupation. Id. at 5. However, even in Barron, it was held that total disability does not mean absolute physical inability to pursue any occupation for gain. If such language were literally construed, “the insured could not recover for permanent and total disability if he could sit on a street corner and sell shoe-strings or lead pencils, and thereby earn a little money. Such an interpretation would not be in keeping with the evident intention of the parties, if we are to construe the contract in the light of the attendant and surrounding circumstances. [Cit.]” Id. at 10. Employing that approach, disability exists if the condition of the insured prevents him from performing a substantial portion of the duties of his occupation or such other line of work as he might reasonably be expected to follow, considering his education, experience, age, and natural ability. Id. at 9.

The holding in Poss is in complete harmony with that approach. In that case, a meat truck driver suffered a disabling back injury and sought to recover disability payments under a similarly worded “any occupation” policy. The insurer denied the claim on the basis that there were many different types of occupations for which the insured could be retrained. This court reviewed prior decisions relating to “any occupation” policies and held, as we do here, that Barron did not overrule prior decisions holding that policies requiring the insured to be unable to perform “any occupation” for gain in order to recover must not be construed literally. On the contrary, “total disability is properly considered within the context of the insured’s customary and usual vocation.” Id. at 278 (2). The policy was issued while Poss was employed as a meat truck driver. In order to show that he was not disabled within the meaning of the policy, the insurer would be required to show that he could perform “some substantial part of the duties of his [former occupation].” Id. at 276. However, all the possible occupations offered in the testimony of the insurer’s expert were dissimilar to the insured’s former occupation as a meat truck driver and did not show he had the ability to perform any substantial portion of his former work. Id. at 277.

Under both Barron and Poss, “total disability” requires only that the insured be unable to perform substantial portions of his ordinary employment or any other employment approximating the same livelihood as he might fairly be expected to follow, given his personal circumstances, including his experience, education, and physical and mental capabilities. Barron, supra at 10; Poss, supra at 275.

In this case, Stamey was employed as a police officer for 19 years. He never advanced beyond the rank of patrol officer. There was undisputed medical testimony that Stamey, because of his disability, is no longer capable of performing “any activities relating to police work.”

Katherine Willard, Equicor’s vocational rehabilitation expert, testified that in her opinion there were many work opportunities for Stamey in “middle management positions,” government administrative work such as ADA compliance, or supervisory or teaching jobs in security. However, although his advanced education appears at first blush to render him capable of performing these other jobs, he has no experience in any of these fields. While he is schooled as a lawyer, he has not passed the bar examination and is no longer academically eligible to retake it. He is, therefore, unable to practice law. His difficulties in advancing beyond patrolman in the Atlanta Police Department suggest, in fact, that he has problems in translating his education into viable work experience and that he would be incapable of supervisory or administrative work.

Under these circumstances, Equicor has not shown that Stamey is able to perform a substantial portion of the duties of the lines of work he would be expected to follow given his education, experience, and physical and mental capabilities. The trial court did not err in finding that he is totally disabled within the meaning of the policy.

2. We agree as well with the trial court’s conclusion that in view of the fact that Poss was decided in 1980, settling the law on this issue, as well as our conclusion that Poss is not in conflict with Barron, no bona fide controversy existed regarding Stamey’s entitlement to disability benefits. See Gist v. Ferguson Constr. Co., 197 Ga. App. 625, 627 (4) (398 SE2d 862) (1990). On this basis, Equicor’s denial of Stamey’s claim properly may be considered stubborn and litigious. Id. An award of attorney fees and expenses of litigation must be affirmed if there is any evidence to support it. There being some evidence of stubborn litigiousness, the trial court did not err in awarding expenses of litigation under OCGA § 13-6-11. Id. at 628.

3. We find no merit in Equicor’s contention that the trial court erred in awarding prejudgment interest at the rate of seven percent because OCGA §§ 7-4-2 and 7-4-15 have been held specifically inapplicable to life insurance policies. Southwestern Life Ins. Co. v. Middle Ga. Neurological Specialists, 262 Ga. 273, 276 (2) (416 SE2d 496) (1992). OCGA § 33-25-10, which governs the payment of interest on proceeds or payments under life insurance policies, clearly contemplates situations where the insured is deceased; it requires the computation of interest from the date of the insured’s death until the date of payment. No death is involved here. Moreover, even assuming that OCGA § 33-25-10 applies here, and not OCGA §§ 7-4-2 and 7-4-15, that statute provides for the payment of interest at the legal rate. OCGA § 33-25-10 (b) (1).

Decided February 6, 1995

Reconsideration denied February 23, 1995

Richelo, Morrissey & Gould, Brian J. Morrissey, for appellant.

Carter A. Setliff, William G. Hammonds, for appellee.

We likewise do not agree with Equicor that because the monthly payments are calculated in a fashion that includes an interest factor, the trial court could not award prejudgment interest. “OCGA § 7-4-15 provides that ‘(a) 11 liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them. . . An award of interest under this provision is not premised on bad faith but on the principle that when a debt is owed and the demand for funds is made, interest accrues from the time entitlement attaches. [Cit.] ” Rivergate Corp. v. Atlanta Indoor Advertising Concepts, 210 Ga. App. 501, 503 (3) (436 SE2d 697) (1993). Because the amount due on the policy was fixed, certain, and ascertainable, the damages sought are liquidated, and prejudgment interest was awardable as a matter of law. Id. The trial court did not err in awarding prejudgment interest.

4. We have considered Equicor’s remaining enumerations of error and find them without merit.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       Equitable sold its group programs, along with its administrative arm, Equicor, to CIGNA Companies. Equicor is now a subsidiary of CIGNA.


text:
    A94A2360.
    MANLEY et al. v. GWINNETT PLACE ASSOCIATES, L.P.
    (454 SE2d 577)
   Smith, Judge.

Lillian Manley brought suit against Gwinnett Place Associates, L.P., d/b/a Gwinnett Place Mall, to recover damages for injuries sustained by Lillian Manley when she fell on a handicapped ramp outside the mall. The trial court granted Gwinnett Place’s motion for summary judgment, and the Manleys appeal. We affirm.

The record reveals that on April 26, 1991 at about 6:45 p.m., Lillian Manley (hereinafter referred to as “Manley”) and her husband arrived at the mall and parked in the lot outside the entrance to the restaurant at which they were to meet friends. It was still light outside. A handicapped access ramp leading from the sidewalk to the parking lot was located adjacent to the entrance. The ramp was painted yellow and a crosswalk marked with cross-hatching led up to it. Although Manley could not recall the exact path she and her husband took from the parking lot to the mall, she testified they “usually cross at a crosswalk,” and they definitely entered the mall in that area. After dinner, between 9:30 and 10:00 p.m., they left the mall with the two couples with whom they had dined, walking three abreast to the parking lot. It was either misting or had just stopped raining, and the ground was wet. Manley slipped on the ramp and fractured her hip.

In their complaint, the Manleys alleged that Gwinnett Place was negligent in several respects. On appeal, they contend the trial court erroneously granted summary judgment to Gwinnett Place because issues of fact remain as to each of those allegations.

1. They first contend an issue of fact remains as to whether appellee improperly placed the handicap access ramp between the mall door and the parking lot in the main stream of traffic, at the only crosswalk.

We find no merit in this contention. 3The gist of the Manleys’ allegation regarding placement of the ramp is that although it was intended for the handicapped, its placement encouraged use by all pedestrians. However, to accomplish its intended purpose, the ramp must be placed where it is convenient for the disabled to use. Apparently, it is also convenient for those who are not disabled. Further, if it is safe for the handicapped, we fail to see how its use by non-disabled pedestrians indicates negligence on the part of the proprietor.

2. The Manleys’ expert, George Rivers, testified that the ramp did not comply with industry guidelines or regulatory standards because the slope was too steep. The Manleys maintain that because of this noncompliance Gwinnett Place had superior knowledge of the hazardous condition of the ramp, and that appellee was negligent in failing to warn them of the hazard. We do not agree.

Neither the ANSI standards nor the Americans With Disabilities Act establishes negligence or entitles the Manleys to recover here. ANSI is not a governmental body but a private entity that publishes standards applicable to various industries for use as guidelines. Dupree v. Keller Indus., 199 Ga. App. 138, 142 (1) (404 SE2d 291) (1991). No legal requirement exists that the ramp comply with these standards, and violation of such privately set guidelines, although admissible as illustrative of negligence, does not establish negligence. Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (325 SE2d 844) (1984). As to the ADA, “OCGA § 51-1-6 provides for recovery of damages upon breach of a legal duty and specifies that the requirement under the law to perform or refrain from doing an act must be for the benefit of the injured person.” Dupree, supra at 141. To recover on a claim of breach of statutory duty, the person claiming the breach must be within the class for whose benefit the statute was enacted. Spivey v. Sellers, 185 Ga. App. 241, 244 (363 SE2d 856) (1987). Clearly, Manley was not in the class of persons for whose benefit the Americans With Disabilities Act was enacted, since she was not disabled.

Even assuming, however, that failure to follow the guidelines for the ramp’s slope created a hazardous condition that caused Manley’s injuries, the condition of the ramp was open and obvious. Manley admitted that the ramp was in plain sight as she entered the mall, that it was painted yellow, and that it had sloping sides. Her expert, George Rivers, conceded that it was “obvious” the sides of the ramp were sloped. The facts in this case are legally indistinguishable from those in Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993). In Sullivan we held that even if a threshold slope created a hazardous condition, it was an open and obvious static condition that the plaintiff could have discovered and avoided in the exercise of ordinary care. Id. at 115. Likewise, Manley should have been aware of the slope of the ramp and could have avoided the hazard by exercising ordinary care. See also Walker, Dade & Catoosa Counties Hosp. Auth. v. Clark, 209 Ga. App. 52 (432 SE2d 647) (1993). There is no duty to warn an invitee of the obvious. Forde v. C & S Ga. Corp., 178 Ga. App. 400, 402 (343 SE2d 164) (1986). The trial court did not err in granting summary judgment to appellee on this issue.

3. The Manleys assert error in the trial court’s failure to find issues of material fact regarding various other allegations. None of these assertions are meritorious. They assert, for instance, that appellee was negligent in painting the ramp, thereby increasing its slipperiness. However, even their expert testified that the coefficient of friction of the painted ramp was “not unreasonable.” Although they point to evidence that others had fallen in the area of this ramp as establishing that appellee failed to correct a known dangerous condition, appellee did take corrective action by painting the ramp with non-skid paint. Moreover, none of the three prior incidents was substantially similar to this one. None involved a wet ramp or involved serious injuries, one incident involved a woman wearing high-heeled shoes, and no evidence establishes that the remaining two incidents actually occurred on this ramp. Since these incidents were not substantially similar, they are not admissible. See Meacham v. Barber, 183 Ga. App. 533, 534 (1) (359 SE2d 424) (1987).

Decided February 9, 1995

Reconsideration denied February 23, 1995

James G. Stewart, for appellants.

Greene, Buckley, Jones & McQueen, Francis C. Schenck, for appellee.

In this case, nothing prevented Manley from appreciating the presence, the slipperiness, or the steep slope of the ramp. Even when construed most favorably to her, the evidence demonstrates that the knowledge of the hazard attributable to Manley was at least equal to that of appellee. Summary judgment, therefore, was appropriately granted to Gwinnett Place. See Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292-293 (2) (435 SE2d 764) (1993).

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       In a related appeal, Gwinnett Place Assoc., L.P. v. Pharr Engineering, 215 Ga. App. 53 (449 SE2d 889) (1994), we held that summary judgment was properly granted to third-party defendants from whom Gwinnett Place Associates sought contribution or indemnification.

       We note initially that if, as the Manleys allege, the ramp was moved after Manley’s fall to remediate a problem with its location, that fact is inadmissible. Gunter v. Jackson EMC, 198 Ga. App. 629, 630-631 (1) (402 SE2d 309) (1991).

       American National Standards Institute.


text:
    A94A2510.
    BOLD CORPORATION, INC. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
    (454 SE2d 582)
   Smith, Judge.

Bold Corporation, Inc., which operates an herbicide blending facility, brought this action against its insurer, National Union Fire Insurance Company of Pittsburgh, Pa., seeking damages under a contract of property insurance arising from the contamination of certain agricultural chemicals formulated by Bold. The insurer denied the claim, contending the loss was excluded from coverage under the policy. Cross-motions for summary judgment were filed, and the trial court granted the insurer’s motion and denied that of Bold.

The parties disagree regarding the construction of the policy exclusions and their application to the material facts, which are undisputed. They agree that the loss was caused by contamination of two products blended by Bold: Linex 50 DF and Lorox DF. They also agree that these products were contaminated by the presence of Fluometuron. Fluometuron, a powdery substance, is an ingredient of Meturon 80 DF, a product blended by Bold immediately prior to the runs of Linex 50 DF and Lorox DF that were contaminated. Bold concedes that the Fluometuron that contaminated the Linex 50 DF and Lorox DF runs was “residue left from the Meturon 80 DF run.”

The policy in issue is an all-risk policy; it covers the insured against “all risks of direct physical loss or damage . . . from any external cause” except those excluded in the policy. The policy contains a number of exclusions, including those barring coverage for losses caused by “errors in processing,” “mixing,” “maintenance,” and “pollution.”

1. Bold contends that none of these exclusions is applicable because no evidence exists that the loss was occasioned by any of these excluded causes. We need not address each of the exclusions because we find it clear that the exclusion covering “errors in processing” is applicable and bars recovery.

After completing an in-house investigation of the contamination, Bold’s safety director, Nancy Davis, issued a written report identifying several factors contributing to the loss. According to the report, one factor was that Bold experienced problems with its air filtration system during the blending of Meturon 80 DF between November 27, 1991 and December 30, 1991. These problems apparently “made significant contributions to the contamination of subsequent products.”

Another factor was that “the schedule did not allow enough time to do a full wash-down of the equipment” after the Meturon 80 DF run. After blending the Meturon 80 DF the equipment was cleaned using “clay flushes” and “sweep downs,” but the Fluometuron remained “trapped” in the system in large quantities. The day after the Meturon 80 DF run was completed, Bold began blending Linex 50 DF. Moreover, the clay flush was not analyzed for the presence of Fluometuron after the cleaning.

Because no new contaminant was introduced during the Lorox run, Davis concluded that the Fluometuron was left in the system after the Meturon run despite the clay flushes and sweep downs, and she recommended that a complete wash-down always be conducted between runs in the future. She concluded that “clay flushes with sweep downs are insufficient to thoroughly clean the equipment.” She also recommended that “[t]he scheduling of products should allow sufficient time for a proper clean-out of equipment,” and that the clay flushes be analyzed before a product is run.

In denying the claim, National Union relied on its own investigation and on Davis’s report. Both point to inadequate cleanup as being at least partly responsible for the contamination. Further, Bold admits that cleanup is part of “processing.”

Contrary to Bold’s assertions in its brief, therefore, the losses resulted from Bold’s “errors in processing,” which under the plain meaning of the language of the policy are excluded from coverage. Words in an insurance contract must be given their usual, ordinary, and common meaning. OCGA § 13-2-2 (2). The term at issue here is unambiguous. “It is the function of the court to construe the contract as written and not to make a new contract for the parties. [Cit.]” Bartlett v. American Alliance Ins. Co., 206 Ga. App. 252, 254 (424 SE2d 825) (1992). The parties’ rights respective to a policy of insurance must be determined by the terms of the contract. Where the language of the contract fixing the extent of coverage is unambiguous, as here, and but one reasonable construction is possible, this court must enforce the contract as written. A term in an insurance policy that unambiguously and lawfully limits the insurer’s liability may not be extended beyond what is fairly within its plain terms. Perkins Hardwood Lumber Co. v. Bituminous Cas. Co., 190 Ga. App. 231, 232 (1) (378 SE2d 407) (1989). National Union was entitled to judgment as a matter of law because coverage was excluded for this loss. The trial court did not err in granting National Union’s motion for summary judgment.

Decided February 10, 1995

Reconsideration denied February 23, 1995

Thomas E. Pujadas, for appellant.

Robins, Kaplan, Miller & Ciresi, R. Dennis Withers, Judith I. Harris, for appellee.

2. Our conclusion that the loss was excluded from coverage under the policy renders moot Bold’s contention that it was entitled to judgment as a matter of law.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       Although the report is titled “preliminary in-house investigation of product contamination,” it was adopted as a final report and the facts contained therein were accepted by Bold as true.

       The same reasoning would bar coverage under the “maintenance” exclusion, which excludes losses caused by maintenance of insured property.


author: Johnson, Judge.

text:
    A94A2546.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. KILGORE et al.
    (454 SE2d 587)
   Johnson, Judge.

On May 31, 1990, Edward Rix was driving a tractor owned by Ray West when he collided with a car driven by Delana Kilgore and owned by Fred Kilgore. Southern General Insurance Company, which had issued an insurance policy for West’s tractor, filed a declaratory judgment action, claiming the policy did not cover the accident. The defendants named in that action included West and Rix, the Kilgores and their uninsured motorist carrier, Georgia Farm Bureau Mutual Insurance Company (GFB). On February 15, 1991, the Kilgores filed a cross-claim against West and Rix, seeking recovery for alleged personal injuries to Delana Kilgore and property damage to Fred Kilgore’s car. Thereafter, the trial court granted summary judgment to Southern General on its declaratory judgment action, and this court affirmed that judgment. Kilgore v. Southern Gen. Ins. Co., 210 Ga. App. 434 (436 SE2d 547) (1993). On May 15, 1992, the day after the trial court’s grant of summary judgment to Southern General, the Kilgores obtained a duplicate original of the cross-claim and summons from the trial court clerk, and mailed those documents to the sheriff for service on GFB. The sheriff did not perfect service until June 2, 1992, because GFB’s registered agent was out of the country until that date. GFB moved to dismiss the cross-claim based on untimely service of process. The trial court denied the motion, finding that diligence in serving a defendant with notice of a lawsuit is measured from the time the statute of limitation runs and that the Kilgores exercised sufficient diligence in serving GFB with the cross-claim. GFB appeals.

GFB correctly asserts that as the Kilgores’ uninsured motorist carrier it was entitled to be served with notice of the Kilgores’ cross-claim as if it were the defendant named in that claim. See OCGA § 33-7-11 (d); Capra v. Rogers, 200 Ga. App. 131, 135 (4) (407 SE2d 101) (1991). GFB also is correct in noting the trial court erroneously stated that diligence in serving a defendant with notice of a lawsuit is measured from the time the statute of limitation runs. The trial court made this misstatement in reliance on Hobbs v. Arthur, 209 Ga. App. 855 (434 SE2d 748) (1993), which has now been overruled and, unlike the instant case, involved a renewal action under OCGA § 9-2-61. Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994). The trial court apparently relied on the following language from this court’s opinion in that case: “The diligence in serving a defendant with notice of the lawsuit must be measured from the time the statute would otherwise have run, because up to that time, no diligence need be shown. But beyond that time, good reason must appear for tolling the statute.” Hobbs v. Arthur, 209 Ga. App. 855 at 857 (2).

This language is correct to the extent it conveys the concept that if a complaint is both filed and served before the expiration of the statute of limitation, there is no issue of the plaintiff’s diligence in serving process, regardless of the length of time between filing and service. Under those circumstances, diligence is irrelevant to the matter of service. “When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” (Emphasis supplied.) OCGA § 9-11-4 (c). A lawsuit is a valid pending action upon which the plaintiff can proceed if service, though late, has been perfected before the running of the statute of limitation. Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975); Hilton v. Maddox, Bishop &c., 125 Ga. App. 423, 427 (1) (188 SE2d 167) (1972).

If, however, service is perfected after the statute of limitation expires, the plaintiff’s diligence in perfecting service is not, as the trial court ruled, measured only from the date the statute ran; rather, the correct rule is to measure diligence from the date the complaint was filed to determine if the untimely service of process should relate back to the timely filed complaint and thereby toll the statute of limitation. See generally Nee v. Dixon, 199 Ga. App. 729, 730 (405 SE2d 766) (1991). “Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back if the service is more than five days after the filing depends on the length of time and the diligence used by the plaintiff. This rule has previously been applied by this court with respect to service against uninsured motorist carriers.” (Citations, punctuation and emphasis omitted.) Williams v. Colonial Ins. Co. of California, 199 Ga. App. 760 (406 SE2d 99) (1991).

In the instant case, OCGA § 9-3-31 provides the four-year statute of limitation applicable to the cross-claim for property damage to Fred Kilgore’s car and OCGA § 9-3-33 sets forth the two-year statute of limitation governing Delana Kilgore’s personal injury claim. The Kilgores filed and served their cross-claim on GFB prior to May 31, 1994, the expiration date for the statute of limitation applicable to the property damage claim. See generally Davis v. DESA Intl., 209 Ga. App. 318 (433 SE2d 410) (1993). Accordingly, the trial court committed no error in denying GFB’s motion to dismiss that portion of the cross-claim. See Smith v. Griggs, 164 Ga. App. 15, 18 (2) (296 SE2d 87) (1982); Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977).

Delana Kilgore’s cross-claim for personal injuries was filed before, but not served on GFB until two days after, the running of the applicable two-year statute of limitation. See generally Davis, supra. Kilgore did not attempt to serve GFB with the cross-claim until 15 months after filing it, when the trial court granted summary judgment to Southern General. Kilgore argues she was justified in allowing this 15 months to elapse before serving her uninsured motorist carrier with the claim because until the court granted summary judgment to Southern General, Rix and West were not uninsured. This argument has previously been rejected. See Bohannon v. Futrell, 189 Ga. App. 340, 341-342 (1) (375 SE2d 637) (1988).

Nevertheless, although Kilgore’s delay of 15 months was not diligent, she had the option, as previously discussed, to try to accomplish both filing and service any time before the expiration of the statute of limitation, regardless of the amount of time elapsed between filing and service. See OCGA § 9-11-4 (c); Childs, supra; Hilton, supra. It is undisputed that Kilgore provided the sheriff with the necessary documents for service on GFB more than two weeks before the expiration of the statute. Kilgore’s attorney then contacted the sheriff twice prior to the statute’s expiration to determine if service had been perfected and to ask that service be expedited. The sheriff, however, was unable to perfect service until two days after the statute ran because GFB’s registered agent was out of the country. Under these circumstances, the trial court was authorized to conclude the sheriff’s failure to serve GFB before the statute ran was not due to lack of diligence by Kilgore, but was due to the registered agent’s unavailability; had he been available, the sheriff could have served him before the statute ran. See Douglas v. Woon, 205 Ga. App. 355, 356-357 (1) (422 SE2d 61) (1992); Scoggins v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 408 (274 SE2d 775) (1980). Because the court did not abuse its discretion, the denial of GFB’s motion to dismiss cannot be disturbed. See Peoples v. State Farm Mut. Auto. Ins. Co., 211 Ga. App. 55, 57 (438 SE2d 167) (1993); Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990); compare Johnson v. Shield Ins. Co., 189 Ga. App. 333 (375 SE2d 510) (1988).

Decided February 10, 1995

Reconsideration denied February 23, 1995.

Jones, Hilburn, Claxton & Sanders, James V. Hilburn, for appellant.

W. McMillan Walker, Sarah M. Tipton-Downie, E. Herman Warnock, George L. French, for appellees.

Judgment affirmed.

Beasley, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2685.
    SHREVE v. WORLD CHAMPIONSHIP WRESTLING, INC. et al.
    (454 SE2d 555)
   Birdsong, Presiding Judge.

Larry Shreve a/k/a Abdullah the Butcher appeals the grant of judgment on the pleadings under OCGA § 9-11-12 (c) to World Championship Wrestling, Inc., Turner Home Entertainment International, Inc., and Turner Broadcasting Systems, Inc., on his claim for wrongful appropriation of his name and likeness. Shreve contends that the defendants wrongfully appropriated his name and likeness by making and distributing unauthorized videotapes of a wrestling match in which he participated.

Shreve contends the trial court erred by granting judgment on the pleadings because the court considered matters outside the pleadings and because he had filed a jury trial demand.

The record shows that Shreve quoted in his complaint from a Consent and Release he signed before participating in the match and the defendants attached to their joint answer a copy of that Consent and Release. The Consent and Release provided that in return for good and valuable consideration, the receipt and sufficiency of which was acknowledged, Shreve agreed that World Championship Wrestling would have the exclusive, worldwide right, in perpetuity, to exploit any and all recordings of all wrestling matches in which Shreve appeared on behalf of World Championship Wrestling and that World Championship Wrestling had the right to televise the match through any means known or later developed, in all manners, forms, and media. Subsequently, the defendants moved for judgment on the pleadings, contending the Consent and Release authorized distribution of the videotapes. Shreve’s response to the motion contended the Consent and Release was not sufficient to authorize the use of his name and likeness. The trial court found that Shreve had no claim because he signed the Consent and Release, and granted the defendants’ motion for judgment on the pleadings. Held:

1. Judgment on the pleadings should only be granted when the movant is clearly entitled to judgment. Gulf American Fire &c. Co. v. Harper, 117 Ga. App. 356 (160 SE2d 663). “For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted.” (Punctuation omitted.) Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540, 543 (218 SE2d 263). Although Shreve contends the lower court erred by considering the Consent and Release attached to the defendants’ answer, this contention is without merit. This document was incorporated by reference in the answer and was attached as an exhibit, it was part of the pleading (OCGA § 9-11-10 (c)) and properly could be considered by the court below. As the Consent and Release clearly authorized World Championship Wrestling to use the videotapes, Shreve had no claim against the defendants. Consequently, the trial court did not err in granting the motion.

2. Shreve’s contention that the motion for judgment on the pleadings should not have been granted because he demanded a jury trial is also without merit. CM3, Inc. v. Associated Realty Investors/Prado, 201 Ga. App. 428, 429 (411 SE2d 320).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided February 7, 1995

Reconsideration denied February 23, 1995

Antonio L. Thomas, for appellant.

Troutman Sanders, David C. Vigilante, John J. Dalton, for appellees.


author: McMurray, Presiding Judge.

text:
    A94A2796.
    McKIBBONS v. THE STATE.
    (455 SE2d 293)
   McMurray, Presiding Judge.

Defendant Charles McKibbons, a/k/a Charles McKibbens, was charged via indictment with a single violation of the Georgia Controlled Substances Act, in that he “did unlawfully possess . . . Cocaine, . . . with intent to distribute. ...” The evidence adduced at his jury trial showed that police obtained a no-knock search warrant for “117 Pine [Street,] # 9,” in Atlanta, Georgia. Before executing this search warrant, police observed the premises and discovered that a person leaving this apartment had crack cocaine in his possession. By use of a decoy, defendant was lured out of the apartment whereupon the search warrant was executed. Defendant was detained during the premises search. A search of his person revealed a “plastic pill bottle containing [114] hits of crack cocaine . . .” hidden in defendant’s groin.

The jury found him guilty as charged. After the denial of his motion for new trial, defendant appealed directly to the Supreme Court of Georgia, which transferred this appeal to the Court of Appeals of Georgia. Held:

1. In his first enumeration, defendant contends the trial court erred in sustaining the State’s challenge to defense counsel’s use of peremptory challenges, arguing that he was denied his right to a “fair and impartial jury. . . .”

The transcript indicates that the qualified venire was composed of 21 white potential jurors and 14 black potential jurors, a ratio of 60 percent to 40 percent whereas the petit jury as originally selected contained four white jurors and eight black jurors, a ratio of 33 Ms percent to 66% percent. Defendant, who is black, “exercised all [twelve] of his peremptory strikes, . . . ten of which were against white [potential] jurors. . . .” The trial court heard defense counsel’s reasons for striking these ten white potential jurors and ultimately ordered that five of them be seated as jurors after determining the proffered reasons were not “sufficientfly] racially neutral. ...” The seating of these five white venire resulted in a petit jury of “seven white jurors, [and] five black jurors, which [the trial court] deemed to be sufficiently close to the sixty-forty percent of the entire venire, with one black alternate juror.” Defendant then moved for a mistrial, questioning whether “jurors who know they have been struck by the defense [can] be placed on a jury and [be] fair and impartial. . . .”

“ ‘(T)he Constitution (of the United States) prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.’ . . . [B]oth the [S]tate and defendants in criminal actions are constrained to exercise their peremptory challenges in a racially neutral fashion.” State v. Mayweather, 262 Ga. 727 (425 SE2d 659). “[CJriminal defendants have no . . . license to violate the equal protection rights of prospective jurors. . . . [Cits.]” Georgia v. McCollum, 505 U. S.__(3) (A), fn. 6 (112 SC 2348, 120 LE2d 33). “The remedy against defense discrimination [is] a Batson challenge by the [S]tate against the defendant. . . .” Davis v. State, 263 Ga. 5, 7 (10), fn. 3 (426 SE2d 844).

An explanation for the use of a peremptory strike, “even if it is based upon mistake or ignorance, may be sufficient to rebut a prima facie Batson showing, so long as it is not whimsical or fanciful but is neutral, related to the case to be tried, and a clear and reasonably specific explanation of the legitimate reasons for exercising the challenges.” (Citations and punctuation omitted.) Smith v. State, 264 Ga. 449, 453 (4) (448 SE2d 179). “ ‘In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the [challenger’s] state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” (Cits.)’ ” Smith v. State, 264 Ga. 449, 454 (4), supra.

In the case sub judice, the trial court was authorized to disbelieve the facially race-neutral reasons for striking certain jurors, or to conclude that the stated grounds were not neutrally applied. For example, the explanation for striking a Waffle House employee on the ground that “Waffle House was a Republican stronghold” is whimsical or fanciful, as is the notion that real estate agents “[go] along with the majority.” Another peremptory challenge was employed because the potential juror “avoided eye contact. . . .” However, the trial court was authorized to conclude that this explanation “reflect[s] certain [impermissible] stereotypical attitudes as to particular groups.” Tharpe v. State, 262 Ga. 110, 111 (6), 112 (416 SE2d 78). Although defense counsel indicated that it was his “custom to strike jurors who have had jury experience . . . ,” the record would support the determination that this ground was not neutrally applied in that a minister “had jury service and was not struck.” We are mindful that “it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.” (Emphasis supplied.) Lingo v. State, 263 Ga. 664, 665 (1), 668 (1) (c) (437 SE2d 463). Nevertheless, considering the prima facie case, the fact that the trial court accepted defendant’s reasons for striking five of the ten venire, combined with the lack of merit in the reasons proffered for the others, we find no clear error in the trial court’s determination to seat as jurors the five venire defendant attempted to exclude through discriminatory use of peremptory challenges. The “prohibition of the discriminatory exercise of peremptory challenges does not violate a defendant’s Sixth Amendment right to a trial by an impartial jury. The goal of the Sixth Amendment is ‘jury impartiality with respect to both contestants.’ [Cits.]” Georgia v. McCollum, 505 U. S._(3) (D), supra. This enumeration is without merit.

2. Next, defendant enumerates the denial of his motion to suppress, arguing that he was arrested without probable cause and that any consent to search his person was coerced. It appears that this issue was raised only by an oral motion after voir dire and memorialized by the subsequent filing of a written motion. In colloquy, the trial court reasoned that the police had reasonable grounds to stop defendant based upon their observations, that he consented to a search of his person, and the discovery of the pill bottle with 114 hits of cocaine established probable cause for a warrantless arrest. The record contains no request for a hearing on the written motion. The trial court did not err in denying defendant’s motion to suppress because it was untimely filed. Baseler v. State, 213 Ga. App. 822 (1) (446 SE2d 250).

3. In his third enumeration, defendant contends his “right to cross examination was constitutionally impaired such as to deprive him of his right to a fair trial. . . .” He first argues that he was not afforded confrontation “due to the [S]tate’s failure to call the other arresting officer, and the two eye witnesses to the incidents leading to arrest.” Secondly, he complains that “[testimony by [Officer Stanley Green] . . . regarding the statements of the two other parties to the transactions leading to [defendant’s] arrest constituted impermissible hearsay in violation of [his] right of cross examination.”

These two grounds “of error fail to specify any error alleged to have been committed by the trial court. See OCGA § 5-6-51 (4).” Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718). Moreover, “ ‘[t]here is no requirement that the State call more witnesses than it needs to present its case.’ ” Fitzgerald v. State, 193 Ga. App. 76 (3) (386 SE2d 914). “The constitutional right [of the accused] is the right to be confronted with the witnesses testifying against him. [Cits.]” (Emphasis in original.) Heard v. State, 126 Ga. App. 62, 65 (3), 66 (189 SE2d 895). In the case sub judice, the fact that the State did not call the decoy who lured defendant out of the apartment was not an impermissible limitation of the right of the accused to confront the witnesses against him, since the direct testimony of the arresting officer established all of the elements of the offense of possessing cocaine with the intent to distribute, as alleged in the indictment. Brown v. State, 147 Ga. App. 638 (1), 639 (249 SE2d 689).

As to defendant’s contention that the arresting officer was impermissibly permitted to offer hearsay testimony, the citation to the record offered in support of this enumeration demonstrates that the statement objected to on appeal came in reply to question's posed by defense counsel during cross-examination. The officer witness was explaining why he could not relate out-of-court statements made by persons who were present at defendant’s arrest but not present at trial. “Thus, error, if any, was self-induced and provides no basis for reversal. Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).” Fitzgerald v. State, 193 Ga. App. 76, 77 (7), 78, supra.

4. Defendant’s fourth enumeration contends the “prosecutor made improper and prejudicial comments in closing argument . . .” which deprived him of due process. However, defendant interposed a timely objection in only two of the many instances of allegedly improper argument cited in support of this enumeration, such that all other instances have been waived because they were not properly preserved for appellate review. Moore v. State, 222 Ga. 748, 749 (6) (152 SE2d 570).

The first objection raised by defendant to closing argument by the State’s attorney asserted “there is no evidence of a hallway conversation.” This assertion was contradicted by the State’s attorney. The trial court observed that the “jury will remember the evidence,” and the State’s attorney continued with closing argument. Defendant raised no additional objection and invoked no additional ruling. “ ‘Acquiescence completely deprives [defendant] of the right to complain further.’ Thompson v. State, 186 Ga. App. 471, 472 (367 SE2d 320) (1988) (quoting Upshaw v. Cooper, 127 Ga. App. 690, 692 (194 SE2d 618) (1972)).” Earnest v. State, 262 Ga. 494, 496 (3) (422 SE2d 188). This ground of the enumeration is without merit.

As to the second objection to allegedly improper closing argument, the record shows the following transpired: “[STATE’S ATTORNEY:] ... We know that drugs are ravaging our community. We know that many people are being failed by the system. That was brought out on voir dire questioning of some of the prospective jurors on this panel. I would submit. . . that you would do a disservice and would victimize the people of Techwood Homes. . . . [DEFENSE COUNSEL:] Your Honor, I am going to object to that line of argument, claiming the passion of the jury. It’s not in evidence. [THE COURT:] Overruled. Go ahead.” Defendant did not thereafter move for a mistrial, a rebuke, or for curative instructions.

Decided February 2, 1995

Reconsideration denied February 23, 1995

Cathy M. Alterman, for appellant.

Lewis R. Slaton, District Attorney, Anita T. Wallace, Kirby Clements, Jr., Vivian D. Hoard, Assistant District Attorneys, for appellee.

We find no error in overruling defendant’s objection in this instance. “A statement by the prosecutor that drugs are ‘killing our society’ and pointing out that [defendant] committed a serious offense was merely pointing out to the jury its interest in law enforcement. This statement did not in any way prejudice [defendant’s] right to a fair trial.” Hester v. State, 187 Ga. App. 46, 48 (4) (369 SE2d 278). “It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, Whitaker v. State, 246 Ga. 163, 167 (11) (269 SE2d 436) (1980), or to argue as a part of the jury’s duty that it should convict so as to stem a drug problem in the community, Callahan v. State, 179 Ga. App. 556, 564 (5) (347 SE2d 269) (1986), or to convict so as to send a message to others that criminal activities will not go unpunished. Nebbitt v. State, 187 Ga. App. 265, 268 (4) (370 SE2d 1) (1988).” Philmore v. State, 263 Ga. 67, 68 (3), 69 (428 SE2d 329). Compare Fair v. State, 168 Ga. 409, 412 (1) (148 SE 144), where the Supreme Court of Georgia reversed a capital murder conviction because of improper argument by the prosecution, holding that references to a statistic that 561 murders were committed in Georgia in 1922 “were [not] matters of such common knowledge that the court would take judicial cognizance of their existence without proof.”

Finally, repeated references by the State’s attorney in closing argument to that intimate portion of defendant’s anatomy wherein he had concealed 114 doses of crack cocaine were not improper argument, calculated to inflame the passions and prejudices of the jury by the impermissible introduction of facts not in evidence. Compare Bell v. State, 263 Ga. 776 (439 SE2d 480). This enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A94A0303.
    STATE OF GEORGIA v. ADAMS et al.
    (453 SE2d 511)
    Decided February 23, 1995.

      Robert E. Keller, District Attorney, Tracy G. Gladden, Albert B. Collier, Assistant District Attorneys, Gary D. Bergman, for appellant.

      James S. Plackis, Dudley, Norton & Singleton, Ainsworth G. Dudley, Jr., for appellees.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been affirmed in part and reversed in part by the Supreme Court, State of Ga. v. Adams, 264 Ga. 842 (452 SE2d 117) (1995), our decision in State of Ga. v. Adams, 212 Ga. App. 881 (443 SE2d 517) (1994) is hereby vacated and the judgment of the Supreme Court is made the judgment of this court. In accordance with the Supreme Court’s opinion, the case is hereby remanded so that the appellees may be granted a reasonable time in which to amend their answer so as to bring it into compliance with OCGA § 16-13-49 (o) (3).

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

Beasley, C. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A94A1995.
    THE STATE v. CREEL.
    (454 SE2d 804)
   Andrews, Judge.

Creel was charged by accusation with misdemeanor shoplifting. He moved the trial court to enter an order of nolle prosequi on the accusation on the basis that he had a severe heart condition, and that the stress of a trial would be life threatening. The trial court denied the motion for nolle prosequi but ordered that the case be placed on the dead docket over the State’s objection. The State appeals from the trial court’s order placing the case on the dead docket.

The State contends that placing the case on the court’s dead docket was an abuse of the trial court’s discretion, impermissibly interfered with the State’s duty to prosecute, and amounted to a dismissal of the case from which the State has the right to appeal. Creel contends that the State was without authority to appeal from the dead docket order and that the appeal must be dismissed.

The State’s authority to appeal in a criminal case is limited by statute to the following instances: “(1) From an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof; (2) From an order, decision, or judgment arresting judgment of conviction upon legal grounds; (3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; (4) From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury; or (5) From an order, decision, or judgment transferring a case to the juvenile court pursuant to subparagraph (b) (2) (B) of Code Section 15-11-5.” OCGA § 5-7-1 (a); State v. Greenwood, 206 Ga. App. 188 (424 SE2d 870) (1992). The State’s sole basis for asserting the right to a direct appeal in this case is the claim that the order placing the case on the court’s dead docket was the equivalent of an order dismissing the accusation.

The statutory authority for criminal dead dockets is contained in OCGA §§ 15-6-61 (a) (4) (B) (superior courts) and 15-7-41 (state courts), and provides that it is the duty of the clerk of the court to keep “[a] criminal docket which shall contain a summary record of all criminal indictments in which true bills are rendered and all criminal accusations filed in the office of the clerk. . . . The criminal docket shall contain . . . entries of cases which are ordered dead docketed at the discretion of the presiding judge and which shall be called only at the judge’s pleasure. When a case is thus dead docketed, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaed.” We have characterized the dead docket as a procedural device by which “the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court.” Newman v. State, 121 Ga. App. 692, 694 (175 SE2d 144) (1970). “Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused’s favor. A case is still pending which can be called for trial at the judge’s pleasure, or upon which the accused can make a demand for trial.” Courtenay v. Randolph, 125 Ga. App. 581, 583 (188 SE2d 396) (1972); McCord v. Jones, 168 Ga. App. 891, 892-893 (311 SE2d 209) (1983).

Even under a liberal construction of OCGA § 5-7-1 (see State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984)), we conclude that the trial court’s order placing the case on the court’s dead docket was not a dismissal of the accusation from which the State could bring an appeal under OCGA § 5-7-1 (a) (1). Compare State v. Cooperman, 147 Ga. App. 556, 558 (249 SE2d 358) (1978) (state entitled to appeal from a void or illegal order terminating the state’s right to prosecute). The case of State v. Colquitt, 147 Ga. App. 627 (249 SE2d 680) (1978), is not authority to the contrary because we clearly stated that the decision to treat the dead docket order as a dismissal in that case was “[f]or purposes of this appeal only. . . .” Id. at 628.

Decided February 23, 1995.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jeffrey Kwiatkowski, Assistant Solicitors, for appellant.

C. Alan Mullinax, Robert L. Waller III, for appellee.

Since the State lacked authority to bring this appeal under OCGA § 5-7-1, we are without jurisdiction and the appeal must be dismissed. Creel’s motion to dismiss the appeal is granted.

Appeal dismissed.

Beasley, C. J., and Johnson, J., concur.

       Where the State contends that the trial court has improperly postponed prosecution of a case by placing it on the dead docket, the State may seek review by petition for mandamus. See Brown v. Johnson, 251 Ga. 436 (306 SE2d 655) (1983).


author: Pope, Presiding Judge.

text:
    A94A2211.
    RENTZ v. BLANTON et al.
    (454 SE2d 606)
   Pope, Presiding Judge.

Appellant Talmadge Rentz, a resident of Appling County, Georgia, was named executor in the will of his mother, a resident of Wayne County, Georgia. After his mother’s death, the will was admitted to probate in Wayne County and appellant was appointed executor of the estate.

Several months later, appellant filed a petition with the Probate Court of Wayne County requesting transfer of the proceedings to the Probate Court of Appling County, Georgia. Appellees, heirs at law of the decedent and devisees under her will, opposed the motion, and on May 11, 1993, a hearing was held during which the request for transfer, as well as other matters, was addressed. On October 27, 1993 the Probate Court of Wayne County entered an order denying appellant’s request for transfer. Appellant filed an appeal to the Superior Court of Wayne County on November 2, 1993. On December 17, 1993, appellant filed a motion for summary judgment seeking an order of the Superior Court of Wayne County transferring the proceedings to the Probate Court of Appling County.

The Superior Court of Wayne County denied appellant’s motion for summary judgment and entered a certificate of immediate review. Appellant filed an application for interlocutory appeal in this court and, following our grant of his application, his notice of appeal. Held:

OCGA § 53-7-120, which governs the transfer of probate proceedings, provides in pertinent part as follows: “Whenever, from any change of residence or other cause, an administrator or executor desires to remove the jurisdiction of his trust from the probate court of the county of the residence of the testator or intestate to that of his own residence, the same may be done by (1) Obtaining a copy of all the record of the judge of the probate court relative to his trust and causing the same to be recorded by the judge of the probate court of the county of his residence; (2) Giving to the judge of the probate court of his county new bond;. . . and (3) Filing with the judge of the probate court of the county having original jurisdiction a certificate, under the seal of the judge of the probate court of the county to which the trust is to be removed, that the foregoing provisions have been complied with.” OCGA § 53-7-120 (a). See also Head v. Waldrup, 197 Ga. 500 (29 SE2d 561) (1944).

Decided February 23, 1995.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellant.

Leaphart & Johnson, J. Alvin Leaphart, for appellees.

Appellant contends that once he complied with the prerequisites listed in OCGA § 53-7-120 (a), transfer of the proceedings was mandatory. We agree. Subsection (b) of OCGA § 53-7-120 provides that “[u]pon compliance with subsection (a) of this Code section, the judge of the probate court having jurisdiction shall then pass an order transferring the trust to the judge of the probate court of the other county. Thereupon, the whole trust shall be removed from the one county to the other, so that every question growing out of or affecting the trust shall be heard and tried only in that county to which the trust has been removed.” OCGA § 53-7-120 (b). We agree with appellant that this language mandates transfer so long as the procedural requirements are met, and that, therefore, the lower court erred in refusing to transfer the case once compliance with the statutory prerequisites was shown.

Appellees argue, however, that a transfer should not be allowed if the transfer would allow an executor to avoid the rulings of the original court. However, the court to which the case is transferred has the record from the transferring court, see OCGA § 53-7-120 (a) (1), and would have the authority to reissue any orders which remain pending at the time of transfer. See also Uniform Transfer Rule T-13.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2231.
    CORNETT BRIDGE, INC. v. HALL COUNTY et al.
    (454 SE2d 607)
   McMurray, Presiding Judge.

Plaintiff Cornett Bridge, Inc. initiated this action for declaratory judgment and injunctive relief seeking a determination of the proper tax situs of certain construction equipment used in its bridge construction business. The defendants are Banks County, Hall County, the City of Gainesville, and a number of officials of these entities.

Plaintiff uses two locations in connection with its business. Both sites are owned by plaintiff’s president and sole shareholder and leased to the company. One is an office located in downtown Gaines-ville in Hall County which is the registered office of the plaintiff corporation. The construction equipment at issue has never been stored at the company’s Hall County location which is not zoned to allow equipment storage and where it would not be physically possible to store the equipment. Administrative functions, including maintaining records, paying bills, and formulating bids are conducted at the Gainesville office.

The other site is a construction yard located in Banks County. The construction equipment is returned to the Banks County location when it is not in use on a project or when necessary for repair or maintenance. The exact percentage of time a specific piece of equipment is located at the Banks County location varies depending on the type of equipment involved. Some equipment is located the majority of the time at job sites while other equipment remains as much as 80 percent of the time at the Banks County construction yard. (Two cranes permanently stationed at the Banks County location are not at issue on this appeal.) In addition to equipment storage, the Banks County site is used for the construction of forms, specialized equipment, and as a rendezvous site for construction crews.

For the tax year 1991, plaintiff returned its construction equipment to Banks County and the equipment located at the Hall County office to Hall County. The Hall County tax assessors office refused to accept this return and both Hall County, along with the City of Gainesville, and Banks County assert that they are entitled to tax plaintiffs construction equipment. Plaintiff filed this action seeking a declaratory judgment as to which taxing authority had the right to tax its construction equipment. Following a hearing, the Superior Court of Hall County entered an order finding the tax situs of plaintiffs construction equipment to be Hall County and the City of Gainesville, and plaintiff appeals. Held:

OCGA § 48-5-16 (a) provides that: “Any person who conducts a business enterprise upon real property, which is not taxable in the county in which the person resides or in which the person’s office is located, shall return for taxation the tangible personal property of the business enterprise to the tax commissioner or tax receiver of the county in which is taxable the real property upon which the business enterprise is located or conducted.” Plaintiff contends that it maintains a separate business enterprise at the Banks County construction yard so that pursuant to this statute the construction equipment must be returned to Banks County. In this connection, plaintiff enumerates as error the superior court’s conclusion that plaintiff conducts only one business, bridge and box culvert construction and repair. We agree with plaintiff that the Banks County site represents a separate business enterprise. The case of Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1 (102 SE2d 547) demonstrates that the permanent location and use of machinery in a county other than that of the residence or office of the taxpayer is sufficient to create such a business enterprise as will subject such personal property to ad valorem taxation in the county in which the machinery is located. Indeed, we note that the agreement entered between the parties at the hearing that two cranes permanently utilized at the Banks County site would be returned for taxation to Banks County is an implicit recognition that a separate business enterprise was being conducted on the Banks County site.

Nonetheless, this does not necessarily suggest that the construction machinery at issue is an adjunct of the business enterprise conducted at the Banks County construction yard. The use of the construction equipment being essentially transitory or temporary in nature, in order for it to acquire a situs for taxation in a county other than where the owner resides, it must be connected with a permanently located business enterprise in another county. Collins v. Mills, 198 Ga. 18, 27 (30 SE2d 866). Where as in the case sub judice the owner maintains permanent business enterprises in the county of its residence and in another county, a question of fact is presented as to which business enterprise the transitory personalty is more closely connected. Thus O’Neal v. Whitley, 177 Ga. 491 (170 SE 376) may be distinguished on the facts as that taxpayer had only one business location in the county of his residence. In Joiner v. Pennington, 143 Ga. 438 (1) (85 SE 318), a portable sawmill was held subject to taxation in the county of the owner’s residence rather than in the county where it was temporarily located; therefore Joiner v. Pennington, supra, provides no guidance in choosing which business site the construction machinery is more closely connected.

Plaintiff also enumerates as error an allegedly incorrect application of the holding in High Shoals Mfg. Co. v. Penick, 127 Ga. 504 (56 SE 648), and application of the rule mobilia sequuntur personam to the personal property at issue in the case sub judice. To the extent which these enumerations of error may have merit, any error will be corrected by our direction that the error of law concerning the Banks County site’s status as the location of a separate business enterprise requires that the judgment appealed be vacated and the case remanded for entry of new findings of fact and conclusions of law consistent with this opinion. Upon entry of a new judgment pursuant to this direction, the party adversely affected may appeal therefrom within 30 days of entry of such judgment.

Decided February 23, 1995

Burroughs & Lefevre, J. David Burroughs, for appellant.

David C. Jones, Jr., James E. Palmour III, Hulsey, Oliver & Mahar, R. David Syfan, for appellees.

Judgment vacated and case remanded.

Beasley, C. J., and Pope, P. J., concur. Smith, J., disqualified.


text:
    A94A2679.
    HESTER v. THE STATE.
    (454 SE2d 604)
   Pope, Presiding Judge.

Defendant was convicted of armed robbery and kidnapping, and the trial court sentenced him to serve 20 years for armed robbery and life for kidnapping. On appeal, defendant argues (1) the evidence was insufficient to support his convictions, and (2) the trial court erred in sentencing him to life for his kidnapping conviction. While we hold that the evidence was sufficient to support defendant’s convictions, we agree with defendant that the trial court erred in sentencing him to life for kidnapping and therefore remand the case for resentencing.

The victim testified that he was attacked by two men who came up and hit him in the head and legs with a blunt object. When he fell to the ground, the assailants tied his hands behind his back and pulled out his wallet. They took his money and then found his ATM card. The victim gave the robbers his personal identification code. The robbers found a knife in the victim’s truck and threatened to kill the victim, lightly cutting his back with the knife to make their point. The robbers pulled the victim into their car and went to two ATM machines, withdrawing everything the victim had, and then released him back at his truck. The victim identified defendant as one of his assailants.

1. Viewed in a light most favorable to the jury verdicts, the evidence is sufficient to enable rational jurors to find defendant guilty of armed robbery, aggravated assault, and kidnapping beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. OCGA § 16-5-40 defines kidnapping in subsection (a), and then provides in subsection (b) that “[a] person convicted of the offense of kidnapping shall be punished by imprisonment for not less than ten nor more than 20 years, provided that a person convicted of the offense of kidnapping for ransom shall be punished by life imprisonment or by death and provided, further, that, if the person kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or by death.” Although the statute does not make it explicit, the courts have treated kidnapping with bodily injury as a distinct offense separate from and greater than kidnapping. Cf. Smith v. State, 236 Ga. 5, 10 (6) (222 SE2d 357) (1976) (simple kidnapping is lesser included offense of kidnapping with bodily injury); Krist v. State, 227 Ga. 85, 89 (1) (179 SE2d 56) (1970) (when legislature provided for separate and distinct punishment for kidnapping for ransom, it was creating a new, higher grade of kidnapping offense by necessary implication). Thus, even if there is evidence that the kidnapping victim suffered bodily injury, it is not proper to sentence the defendant for kidnapping with bodily injury where the indictment charged only simple kidnapping, see Allen v. State, 233 Ga. 200, 202 (3) (210 SE2d 680) (1974), and/or the jury was instructed only on simple kidnapping, see Patrick v. State, 247 Ga. 168, 170 (274 SE2d 570) (1981). See also Potts v. Zant, 575 FSupp. 374, 379-380 (N.D. Ga. 1983).

Decided February 23, 1995.

Michael A. Corbin, for appellant.

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

In this case, the indictment charged only simple kidnapping, and the jury was instructed only on simple kidnapping. Accordingly, a life sentence on the kidnapping count was unauthorized, despite evidence that the kidnapping victim suffered bodily injury.

Judgment affirmed in part and reversed in part and case remanded for resentencing.

McMurray, P. J., and Smith, J., concur.

       Defendant was also convicted of aggravated assault, but the armed robbery and aggravated assault charges were merged for purposes of sentencing.


text:
    A94A2776.
    GRIFFITH et al. v. BROOKS.
    (454 SE2d 602)
   Andrews, Judge.

Griffith, the biological father of T. S. G., appeals from the order granting Brooks’ adoption petition, thereby terminating his parental rights, after the retrial required by Griffith v. Brooks, 193 Ga. App. 762 (389 SE2d 246) (1989). Griffith was present at the second trial and testified. The facts as set out in Griffith, supra, except for those attested to by the paternal grandparents who did not testify in the current case, are supported in the record before us and will be supplemented only as necessary for this opinion.

T. S. G. was born on January 13, 1985. The mother and Griffith, married at the time, lived together only four-and-one-half months before she left him. On July 1, 1985, the mother married Brooks and T. S. G. has lived with them ever since and been voluntarily supported by Brooks. T. S. G. is now ten years old. Griffith was incarcerated on January 26, 1987 and last paid support in December 1986 with a check which bounced. At the time of his incarceration, Griffith was $1,150 in arrears on court-ordered child support of $50 per month. He had been employed, making $14,000 to $15,000 per year, before being incarcerated. Griffith was again directed, by a subsequent separate order, to pay $50 per month child support beginning March 13, 1987. No payments have been made. Griffith testified that “I don’t have no means of support while I’m in. I sent support until I got incarcerated.” The record supports the trial court’s conclusion that, in fact, when he was imprisoned, Griffith was at least six months behind on his support obligations.

1. Following Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989), the legislature enacted current OCGA § 19-8-10 which provides in subsection (a) that surrender of parental rights is not required for adoption where a child has been abandoned, the parent cannot be found, or the parent is insane or otherwise incapacitated. Subsection (b) reinserted the “without justifiable cause” requirement and now provides that surrender is unnecessary “if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child; or (2) To provide for the care and support of that child as required by law or judicial decree, and the court is of the opinion that the adoption is for the best interests of that child.”

The trial court found that the father had failed to provide any child support for over seven years and that “[t]he biological father has not presented the Court with any act(s) sufficient to establish a familial bond between himself and his child. The father has had a period of seven years to establish a familial bond with his child and has failed to do so.” Griffith testified that, since his incarceration, his only contact with his son has been a telephone call every other week during the child’s visits with his paternal grandparents. Griffith had never requested the mother and Brooks to accept his calls from prison so he could contact his son at other times, nor had he sent any written communications to his son during the prior seven years. The court further concluded that the failure to support the child was without justifiable cause under OCGA § 19-8-10 (b) (2), finding the proffer of imprisonment as the sole explanation for failure to provide support unavailing, stating that “imprisonment does not relieve him of his child support obligation as he has voluntarily committed the criminal offenses [rape and aggravated sodomy] and voluntarily entered the guilty pleas thereon which resulted in his incarcerations. These acts are voluntary within the scope of Curtis v. Jones, 160 Ga. App. 904 (288 SE2d 615) (1982).”

Griffith relies on Jones v. Sauls, 213 Ga. App. 55 (443 SE2d 693) (1994), for his argument that imprisonment is, in and of itself, a “justifiable cause” under the statute and his argument that the court’s reliance on Curtis was improper.

Both Curtis and Chandler v. Cochran, 247 Ga. 184 (275 SE2d 23) (1981), cited in Curtis, supra at 906 (1), were decided during the period when the “without justifiable cause” requirement had been removed from the statute. In Chandler, the biological father was incarcerated and contended that the statute, then Ga. Code Ann. § 74-405, unconstitutionally discriminated against incarcerated persons. In rejecting that claim, the Supreme Court stated that “[i]t is well settled that no person can object to the natural consequences of his own act voluntarily performed. It would emasculate our child-support laws to relieve parents of their natural and statutory child-support obligations because they have voluntarily committed offenses resulting in their imprisonment and possible inability to earn funds with which to support their children.” Chandler, supra at 187 (6). Curtis involved another incarcerated father and also affirmed the court’s conclusion that his incarceration did not excuse his lack of support of his child.

Both Curtis and Chandler are cited by the Thorne opinion, but neither is expressly overruled regarding the above quoted language. Chandler is distinguished because “the constitutional attack presented by this case was not squarely before the court. . . .” Thorne, supra at 652.

Decided February 23, 1995.

Hartley & Puls, Alton G. Hartley, for appellant.

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

In Jones, supra, the trial court concluded that the incarcerated father’s failure to pay support was with justifiable cause. There, however, with money supplied by his mother for the year prior to the filing of the petition to adopt, Jones had made monthly payments toward his substantial child support arrearage. He had also applied to his arrearage a refund which he had received from his retirement plan. He made frequent attempts to contact his son and maintain a close father-son relationship, including sending weekly letters to the child. This court affirmed the trial court’s conclusion that, in that case, Jones had not failed to communicate with his son, had significantly failed to provide for the care and support of his child, but that this failure was not without substantial justification.

In so doing, we stated that “[f]or purposes of determining the existence of ‘justifiable cause,’ . . . incarceration is merely one relevant factor to be considered by the trial court; incarceration does not per se give rise to justifiable cause, although in certain circumstances, justifiable cause can be shown to arise therefrom. Each case must be decided on its own circumstances.” (Emphasis supplied.) Jones, supra at 58 (3c).

This conclusion is consistent with our similar finding that considering a parent’s mental condition as one factor is appropriate. In re B. J. H., 194 Ga. App. 282 (1) (390 SE2d 427) (1990).

Considering the evidence in the light most favorable to Brooks, we conclude that any rational trier of fact could have found by clear and convincing evidence that Griffith’s failure to substantially pay support was without justifiable cause. In re W. W. C., 210 Ga. App. 492 (436 SE2d 685) (1993); In re J. L. Y., 184 Ga. App. 254, 256 (1) (361 SE2d 246) (1987). Griffith’s first enumeration is without merit.

2. Because of the conclusion reached in Division 1, it is unnecessary for this court to consider the second enumeration.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       There, this court reversed the trial court’s conclusion that Griffith had abandoned the child as then set out in former OCGA § 19-8-6 (a) and concluded that Griffith had the right to be present for the retrial. This court also noted that the then trial judge refused to find appellant had failed to support his child as it would have been required to find under former § 19-8-6 (b) (2); and refused to find the failure to communicate or make bona fide attempts to communicate as described by former § 19-8-6 (b) (1). Another judge tried the case on remand.

       Griffith’s parents, who have grandparent visitation rights, did pay $200 toward T. S. G.’s support in December 1987.

       In that case, the Supreme Court found the 1979 amendment to then OCGA § 19-8-6 (b), which had removed the requirement that failure to support be “without justifiable cause,” unconstitutional because it foreclosed the opportunity for a parent to explain the failure, thereby denying due process of law, i.e., a meaningful opportunity to be heard. Thorne, supra at 652.


text:
    A95A0276.
    THE STATE v. KENNEDY.
    (454 SE2d 600)
   Andrews, Judge.

On October 26, 1992, Leann Kennedy was involved in an automobile accident. At the time of the accident, she was charged with driving on the wrong side of the road. The day after the accident, an occupant of the other vehicle died. The citation for driving on the wrong side of the road against Kennedy was filed with the Spalding County State Court clerk’s office on November 25, 1992. The citation was signed by Griffin Howell III as Solicitor of the Spalding County State Court.

Kennedy subsequently paid the ticket at the sheriff’s office. The bond was forfeited in open court on December 18, 1992 and on that date the order from the State Court judge approving the forfeiture and disposing of the case was filed.

On December 30,1992, the State filed an accusation in the Spalding County State Court charging Kennedy with vehicular homicide based on the incident of October 26, 1992. That accusation was also signed by Griffin Howell III as Solicitor of the Spalding County State Court. Kennedy filed a plea of prior jeopardy, which the state court granted. Here, the State appeals.

In its sole enumeration of error, the State contends that the trial court erred in granting Kennedy’s plea of prior jeopardy. OCGA § 16-1-7 (b) provides: “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.” “OCGA § 16-1-7 prohibits multiple prosecutions for the same conduct. This court has held that although the heading of OCGA § 16-1-7 relates to ‘Multiple prosecutions for the same conduct’ it actually proscribes multiple convictions and successive prosecutions for the same conduct.” (Citations and punctuation omitted.) Wilson v. State, 167 Ga. App. 421, 423 (306 SE2d 704) (1983).

The State claims that the prosecuting officer did not know of the charge of driving on the wrong side of the road since that charge was handled by the clerk’s office. This argument was resolved adversely to the State in Smith v. State, 190 Ga. App. 246, 247 (378 SE2d 493) (1989). There, the court concluded that since the accusation and indictment bore the name of the district attorney, they constituted “conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions, [cits.], but chose to proceed separately as to each.” Smith, supra at 247.

Secondly, the State claims that at the time the bonds for the driving on the wrong side of the road charge were forfeited, it was unaware of the vehicular homicide charge. This argument, though somewhat unclear, is also without merit. The vehicular homicide charge was for the same conduct which resulted in a forfeiture of bond. The crime of vehicular homicide was complete prior to the filing of the accusation for driving on the wrong side of the road. Compare Lefler v. State, 210 Ga. App. 609 (1) (436 SE2d 777) (1993); Herrera v. State, 175 Ga. App. 740 (334 SE2d 339) (1985). The forfeiture being a “final disposition” of the case, it was proper for the court to sustain the plea and we find no error. See Wilson, supra; State v. Brittain, 147 Ga. App. 626 (249 SE2d 679) (1978). Given these facts, the State’s reliance on Zater v. State, 197 Ga. App. 648 (399 SE2d 222) (1990), is misplaced.

Decided February 23, 1995.

Newton & Howell, Griffin E. Howell III, for appellant.

Wallace & Moss, Howard P. Wallace, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A0669.
    SWANSON v. SWANSON et al.
    (454 SE2d 529)
   Pope, Presiding Judge.

On Motion for Reconsideration.

Defendant/Appellant Lawrence A. Swanson, Jr. argues this court erred in dismissing his appeal for failure to follow the discretionary appeals procedure because that procedure is only applicable to grants of attorney fees and litigation expenses pursuant to OCGA § 9-15-14 and does not apply to denials of motions seeking such fees and expenses. That contention was decided adversely to defendant’s position in Jones v. Padgett, 186 Ga. App. 362, 363 (2) (367 SE2d 88) (1988), in which this court held “[t]he ‘awards’ which are made discretionary pursuant to OCGA § 5-6-35 (a) (10) are not otherwise limited by an amount of recovery and, therefore, an award which denies attorney’s fees and expenses of litigation to a movant pursuant to OCGA § 9-15-14 is as much discretionary as an award which grants such relief to the movant.”

Motion for reconsideration denied.

Appeal dismissed January 3, 1995

Reconsideration denied February 24, 1995

Reece & Associates, I. Wayne Reece, Carl H. Anderson, Jr., for appellant.

Fisher & Phillips, Griffin B. Bell, Jr., Coppedge, Goddard & Le-man, Warren N. Coppedge, Jr., McDonald, Kinnamon & Thames, E. Crawford McDonald, Jr., for appellees.