text:
    A89A1857, A89A2199.
    CITY OF ATLANTA v. MURPHY; and vice versa.
    (391 SE2d 474)
   Pope, Judge.

Plaintiffs Nancy H. Murphy and Donald B. Walker, husband and wife, reside on 15.7 acres of land they own in Fulton County, Georgia. They brought suit against the City of Atlanta alleging they had been damaged by the maintenance of a nuisance due to the manner in which the City operated a landfill garbage dump adjacent to plaintiffs’ property. At trial both owners testified as to the extreme annoyance and discomfort caused by odors emanating from the landfill and by pests and wild animals attracted to it. Evidence was presented that at times the City left open garbage uncovered in the landfill over night or longer in violation of state regulations. Although plaintiff Walker admitted the property was not uninhabitable and that he and his family did not move out, he did testify that he was prevented from using the property as he had intended to use it during the entire period of time covered by the lawsuit (over two years) and that he and his family were frequently required to stay in the house with windows closed and air-conditioning units on to filter the odor of the air. A real estate appraiser testified that the fair market rental value of the property was $820 per month and the present value of the rental value for the period covered by the lawsuit was $23,800. Judgment was entered on the jury verdict awarding plaintiffs $23,800 for loss of rental value, $25,000 for damages and $6,900 attorney fees.

The City’s motion for new trial was denied and it filed a notice of appeal. Plaintiffs’ motion for dismissal of the notice of appeal was also denied. We first address the issues raised in plaintiffs’ appeal from the denial of its motion to dismiss the City’s notice of appeal in Case No. A89A2199. Then we address the issues raised in defendant City’s appeal in Case No. A89A1857.

Case No. A89A2199

The notice of appeal was filed by the City in this case on April 26, 1988. Although it appears a bill for costs of transmitting the transcript was forwarded by the clerk of the court on an earlier date, the attorney for the City attested that he did not receive a copy until February 6, 1989. The attorney disregarded the bill because he believed the City was not charged court fees by the clerk of the Fulton County Superior Court. An affidavit from the Chief Deputy Clerk attested that for several years the clerk’s office had not billed the City of Atlanta Law Department for certain services, although the cost of transmission of record on appeal was not one of the services enumerated in her affidavit. Nevertheless, we cannot conclude that the trial court abused its discretion in finding the delay in filing the transcript was excusable because of the confusion concerning billing practices by the clerk. “On appellate review the sole test is whether the trial judge abused his discretion in [ruling on the motion to dismiss an appeal].” Duncan v. Ball, 174 Ga. App. 341, 343 (2) (330 SE2d 160) (1985). Consequently, we must affirm the trial court’s denial of plaintiffs’ motion to dismiss the City’s appeal.

Case No. A89A1857

Having concluded that the trial court did not err in refusing to dismiss the City’s notice of appeal, we now address the issues raised therein.

1. The judgment does not award plaintiffs a double recovery for a single injury. In an action for nuisance, the plaintiff may recover for both damage to person and damage to property. OCGA § 41-1-4; Sam Finley, Inc. v. Russell, 75 Ga. App. 112 (3) (42 SE2d 452) (1947). “Generally, the measure of damages for continuing an abatable nuisance is a diminution of the yearly rental value of the property damaged during the existence of the nuisance . . . plus any actual damage sustained . . . .” (Emphasis supplied.) Burleyson v. Western &c. R. Co., 91 Ga. App. 745, 752 (87 SE2d 166) (1955). See also City of Columbus v. Myszka, 246 Ga. 571 (6) (272 SE2d 302) (1980). Damages for discomfort and annoyance caused to the owner and his family are separate and distinct from damage to the value of the realty. See Jones v. Royster Guano Co., 6 Ga. App. 506 (2) (65 SE 361) (1909).

2. Plaintiffs presented evidence of their dealings with representatives of the City of Atlanta prior to filing suit from which the jury could find that the City exhibited bad faith. Bad faith in an action sounding in tort means bad faith in the transaction out of which the cause of action arose. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (5) (60 SE2d 802) (1950). Thus, the fact that the amount of plaintiffs’ damages, if any, was in controversy does not preclude plaintiffs from recovering an award of attorney fees pursuant to OCGA § 13-6-11. Moreover, attorney fees for defendant’s bad faith in the transaction out of which the lawsuit arose may be recovered even where, as here, the amount of damages awarded by the jury is less than that originally demanded in the lawsuit. See Georgia-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747 (2B) (266 SE2d 531) (1980).

Decided February 26, 1990.

Marva Jones Brooks, David D. Blum, Bruce P. Johnson, for appellant.

Edwin Marger, for appellees.

3. The trial court did not err in awarding damages on the verdict or in denying the City’s motion for new trial brought on the general grounds and on the ground that the verdict was so excessive as to be inconsistent with the preponderance of the evidence. The City argues that plaintiffs were not entitled to the full rental value of the property during the period of the nuisance since they remained on the property and enjoyed at least some of its use. “The mere fact that [plaintiffs were] willing to remain in the house, notwithstanding the great discomfort and annoyance caused by the nuisance, ought not to preclude [plaintiffs] from recovering for damage inflicted by the wrongful act of the defendant.” Jones v. Royster Guano Co., supra at 511. Sufficient evidence was presented that plaintiffs were restricted from enjoying the property for the use they had intended. Consequently, we cannot hold the award for diminution of value to be excessive. The fact that the resale value of the property had increased during the period of the nuisance does not preclude plaintiffs from recovering an award for diminution in the value of the use of the property. Id. at (2). The remaining award of damages, for discomfort and annoyance, is for the enlightened conscience of the jury and also should not be disturbed. See Mayor &c. of Waynesboro v. Hargrove, 111 Ga. App. 26 (2) (140 SE2d 286) (1965).

Even though we rule against defendant-appellant, we cannot conclude that the appeal was brought only for delay and, consequently, we deny plaintiffs’ motion for damages for frivolous appeal.

Judgments affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A2325.
    ROUNDTREE et al. v. THE STATE.
    (391 SE2d 682)
    Decided February 26, 1990.

      Allen, Brown & Bruce, Michael J. Classens, for appellants.

      J. Lane Johnston, District Attorney, Jack B. Williamson, Jr,, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendants were convicted of armed robbery (Count 1) and entering an automobile with intent to commit a theft (Count 2). This appeal followed. Held:

1. In their first enumeration of error, defendants contend the trial court erred in overruling a motion for mistrial. The motion was made when the district attorney questioned one of the defendants concerning the whereabouts of potential alibi witnesses. In this regard, defendants assert the motion for mistrial should have been granted because by his questions the district attorney was improperly commenting on defendants’ failure to come forward with exculpatory evidence. This enumeration of error is without merit. The district attorney’s questions were not improper. See generally Haas v. State, 146 Ga. App. 729, 731 (3) (247 SE2d 507). Besides, the motion for mistrial was not renewed after the trial court instructed the district attorney to abandon the challenged line of questioning. See Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158).

2. The trial court did not commit reversible error in charging the jury on the presumption of truthfulness. Coleman v. State, 189 Ga. App. 366, 367 (5) (375 SE2d 663). “Although the challenged charge should no longer be given, it is not unconstitutionally burden shifting. [Cits.]” Johncox v. State, 189 Ga. App. 188, 189 (4) (375 SE2d 139).

3. The trial court did not err in giving the jury a “dynamite” charge. No objection was made to the charge. Moreover, the charge was nearly identical to the charge approved by the Supreme Court in Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43). See Jordan v. State, 172 Ga. App. 496, 499 (5) (323 SE2d 657).

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A90A0265.
    HITT v. LORD.
    (391 SE2d 681)
   Birdsong, Judge.

Roy Hitt appeals the grant of summary judgment to Frank Lord which awarded the return of $5,000 earnest money to Lord, the purchaser, in a real estate deal that the parties agreed not to consummate apparently because a condition of the contract (rezoning) had not been fulfilled.

Decided February 26, 1990.

Duffy & Feemster, Charles P. Daly, for appellant.

Noble L. Boykin, Jr., for appellee.

Appellant Hitt contends, inter alia, that an issue of fact exists whether he or purchaser Lord was intended to or required to have Hitt’s property rezoned; and that the rezoning was purchaser Lord’s duty which Lord failed to perform. Held:

The trial court did not err in granting summary judgment to the purchaser for return of the earnest money. The evidence of record shows that the sales contract was executed subject to the controlling special stipulation: “1. Subject to rezoning. . . The contract is utterly silent as to whose duty it was to have the property rezoned. As a matter of fact, this deficiency rendered the contract too vague and indefinite to enforce (Zappa v. Basden, 188 Ga. App. 472 (373 SE2d 246)), because it is undisputed this very uncertainty caused the contract ultimately to fall through. Appellant Hitt, the seller, attempts to assert that the parties agreed orally that it would be Lord’s duty to rezone, but this attempt to resort to parol evidence to ascertain the intent of a contract for sale of real property, only emphasizes its indefiniteness and proves its unenforceability. See Chastain v. Allison, 122 Ga. App. 811 (178 SE2d 752); Zappa, supra.

Moreover, Chatham County documents of record by which the purchaser ultimately tried to have the rezoning done himself, show that it was required to be petitioned by “Owner’s signature or Authorized Agent’s signature”; and, the owner Hitt did not make Lord his “agent” for petitioning for rezoning until after the original scheduled closing date. Thus, because appellant Hitt says it was agreed the purchaser Lord would seek rezoning, the questions thus arise whether Hitt failed in his apparent duty to make Lord his “agent” for the purpose of rezoning, and whether Lord acted with due diligence. The confusing issues raised by the evidence, and by Hitt’s arguments, prove the difficulty of attempting to resolve and enforce by parol evidence an indefinite real estate contract (see, e.g., Chastain, supra), and the legal necessity of refusing to enforce it upon such vague terms. The contract being void for vagueness, it was required that the purchaser’s earnest money be returned.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A89A1648.
    LIPSCOMB v. THE STATE.
    (391 SE2d 773)
   Beasley, Judge.

Lipscomb appeals his conviction of possession of more than an ounce of marijuana, OCGA § 16-13-30 (j).

Viewed in favor of the verdict, the evidence was that, a little before midnight on November 20, 1986, defendant was pulled over for running a stop sign by Officer Peck. The officer sensed the odor of alcohol and administered field tests, which defendant did not pass. He placed defendant under arrest for D.U.I. and called a wrecker to tow the car. He inventoried it and discovered on the floorboard of the passenger side a paper sack containing 15 packages of marijuana weighing 1.2 ounces. He was charged with possession with intent to distribute and convicted of simple possession.

Defendant testified the marijuana was not his and its presence in the car was unknown to him. He contended that he had taken some children home from basketball camp, dropped them off and went to a convenience store, where he met a friend who gave him one beer which he drank there. He went to a fast food restaurant and ate a hamburger. As he was leaving, he was flagged down by Turner and Holcombe, who wanted a ride to the American Legion. He knew them and that they “had always been in trouble.” He was stopped after he dropped them off.

1. First, we consider our jurisdiction of this appeal. Defendant was tried in May of 1987. The sentencing hearing was conducted on August 10, but the judgment dated that day was not filed with the clerk until October 8, 1987, making that the date of final judgment. Howard v. State, 182 Ga. App. 403, 404 (1) (355 SE2d 772) (1987); Ballard v. State, 131 Ga. App. 847, 848 (207 SE2d 246) (1974), overruled on other grounds, 246 Ga. 455. A Motion for New Trial was handed to the court on August 10, 1987, and an order entered correcting its filing date to August 10 after administrative error resulted in its not being stamped filed until December 22, 1987. Thus, the motion for new trial was rendered premature and invalid by the delayed filing of the judgment. Moore v. Moore, 229 Ga. 600, 601 (1) (193 SE2d 608) (1972); Joiner v. Perkerson, 160 Ga. App. 343 (287 SE2d 327) (1981).

This does not mean that jurisdiction of an appeal is lost if the notice of appeal is filed within 30 days of the order disposing of the technically premature motion although affirmance is necessary of any alleged error premised on the motion. Hill v. Bailey, 187 Ga. App. 413, 415 (1) (370 SE2d 520) (1988) and cases cited therein. The notice was filed within 30 days of the court’s order of March 9,1989, denying both this motion and an interim extraordinary motion for new trial.

2. Defendant asserts as error the disallowance of a court clerk’s testimony regarding certain criminal records. Defendant attempted to introduce into evidence the criminal records of Turner and Holcombe. Neither man was called or subpoenaed by either party, although Turner was in the local jail during the trial, under or awaiting indictment for an unrelated offense, which fact was known to both the State and defendant.

Defendant called a representative from the clerk’s office and asked her if they had been able to determine whether Turner had any criminal charges against him. An objection on the ground that the best evidence would be copies of the convictions was initially sustained, and defendant requested the clerk to provide them, although this was never done. The State also objected on the ground of relevance. After further discussion, the relevance objection was also sustained.

Defendant did not tender the copies of the convictions which he desired to have introduced but only made a proffer of the testimony of the clerk’s representative, which was that she had located records for a Chris Turner and a Holcombe and they were available. There were numerous charges and convictions for non-drug crimes, with Turner having one “violation of Georgia Drug Abuse Control Act, entered a plea and was sentenced in ’73,” and Holcombe having a “violation of Georgia Drug Abuse Control Act that he was sentenced on 5/ 20 of ’85____”

The objection based on the failure to produce the best evidence was properly sustained. OCGA § 24-5-4 (a). Court records, properly authenticated, are admissible. OCGA § 24-5-31. These, however, were not produced. The testimony of the deputy clerk as to their content was not only not the best evidence, Watts v. Six Flags Over Ga., 140 Ga. App. 106, 108 (4) (230 SE2d 34) (1976), it was also hearsay. OCGA § 24-3-1; Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 859 (3) (360 SE2d 418) (1987); Porterfield v. State, 150 Ga. App. 303, 304 (3) (257 SE2d 372) (1979). Thus, no proper proffer of admissible evidence having been made, its exclusion was proper. Flynt v. State, 153 Ga. App. 232, 242 (III d) (264 SE2d 669) (1980).

We need not consider the relevance ground.

3. Defendant’s second enumeration alleges error in the court’s “not granting a directed verdict . . . based upon the Equal Access doctrine.” There was no motion for directed verdict made by defendant and there is thus nothing for us to consider. Lawton v. State, 191 Ga. App. 116, 118 (381 SE2d 106) (1989); Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987).

4. In February 1988, defendant filed an Extraordinary Motion for New Trial based on his discovery on September 15, 1987, of new evidence. Counsel’s affidavit alleged that he had been told by Turner that day that the prosecutor had talked to Turner during the first day of defendant’s trial and had been told by Turner that the marijuana was not defendant’s but belonged to Holcomb. It further averred that counsel had talked to the prosecutor and the conversation was admitted. No affidavit of Turner or the prosecutor was provided, nor is there a transcript of the hearing on the motion.

Decided February 8, 1990

Rehearing denied February 27, 1990

Robert J. Reed, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, David Turk, Assistant District Attorneys, for appellee.

“The standard for granting a new trial on the basis of newly discovered evidence is well established. ‘It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ [Cits.] All six requirements must be complied with to secure a new trial.” Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). The newly discovered evidence must also be admissible in evidence. Id. A stricter rule is applied to extraordinary motions for new trial based on the ground of newly discovered evidence. Dick v. State, 248 Ga. 898, 899 (1) (287 SE2d 11) (1982).

The only statement in the affidavit regarding why Turner’s affidavit was not supplied is that someone, either the attorney or Turner, was having severe medical problems and that subsequently Turner was no longer in the local jail and counsel had been unable to locate him.

The court denied the motion on the grounds that (1) the witness was known to defendant and his failure to procure the same information was due to lack of diligence; (2) the absence of Turner’s affidavit was not adequately explained; and (3) the court was unconvinced that the evidence would probably produce a different result. Any one of these would be sufficient basis for denying the motion. Drake v. State, 248 Ga. 891, 894 (1) (287 SE2d 180) (1982). Dick, supra at 901. During the trial defendant alluded several times to the fact that Turner was incarcerated at the local jail, thus showing knowledge of the location of the witness whose evidence he now contends is newly discovered. Denial of such motion will not be disturbed absent an abuse of discretion and we find none.

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


author: Sognier, Judge.

text:
    A89A1960.
    BLACK v. THE STATE.
    (391 SE2d 432)
   Sognier, Judge.

James Roy Black was charged with driving without a license, driving on the wrong side of the road, possessing less than one ounce of marijuana (a misdemeanor violation of the Georgia Controlled Substances Act), and possessing benzphetamine and diazepam (felony violations of the Act). Following a jury trial at which he appeared pro se, he was convicted on all counts, and he now appeals.

1. In two enumerations of error appellant contends he improperly was denied assistance of counsel at trial as he did not knowingly and voluntarily waive his right to representation. “When an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional guarantee of right to counsel attaches. [Cit.] As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver. [Cit.] . . . When the record is silent, waiver is never presumed and the burden is on the state to present evidence of a valid waiver. [Cit.]” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984). “[T]he record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se . . . [and] that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).

In the case at bar, the transcript reveals only that at the beginning of the trial the judge informed the jury that appellant had chosen to represent himself. The record is devoid of any evidence that the trial court either informed appellant of the perils of proceeding pro se or made a finding that appellant had knowingly and intelligently waived his right to counsel. Accordingly, the judgment below is reversed and the case is remanded for further proceedings consistent with this opinion. Jones, supra at 84.

2. Appellant also contends the evidence was insufficient to support his conviction on the felony charges. The evidence discloses that appellant was driving an automobile in which Michael Thompson, Patricia Whitner, and Whitner’s young son were passengers. The arresting officers testified that after they stopped appellant for driving on the wrong side of the road, they observed him drop a small black change purse on the ground and then pick it up and toss it away when the officers noticed it. The purse was retrieved and was found to contain 1.3 grams of marijuana, five benzphetamine tablets, and ten diazepam tablets. Whitner testified that the pills belonged to her; that she had prescriptions for the drugs and had shown her prescription bottles to the arresting officers; and that the pills were out of their containers only because she had handed them to Thompson, her boyfriend and the owner of the purse, to ensure that her son did not get into them while she was asleep in the back seat. Thompson, who also was charged with possession of marijuana, invoked his Fifth Amendment privilege against self incrimination when called to testify at trial.

Benzphetamine and diazepam are controlled substances (OCGA §§ 16-13-27 (1) (B); 16-13-28 (a) (10)), the unauthorized possession of which is a felony. OCGA § 16-13-30 (a), (g). “[T]he unlawful possession of any controlled substance, regardless of amount, constitutes an offense. [Cit.]” (Emphasis supplied.) Scott v. State, 170 Ga. App. 409, 412 (4) (317 SE2d 282) (1984). Although Whitner testified that she had a prescription for the pills found in appellant’s possession, there was no evidence that appellant had a prescription for the controlled substances found. See Jones v. State, 145 Ga. App. 224, 226 (243 SE2d 645) (1978). We find nothing in the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. (the Act), authorizing possession of controlled substances that allegedly were prescribed for someone other than the defendant but were not in the prescription container when found in the possession of the defendant. See Jones, supra at 226. Compare Owens v. State, 153 Ga. App. 525, 526 (1) (265 SE2d 856) (1980) (two judges concurring in judgment only), wherein this court reversed a conviction for possession of a controlled substance because the defendant had a prescription for the drugs although they were not found in the original container, and Thackston v. State, 178 Ga. App. 408, 409 (3) (343 SE2d 171) (1986), in which a conviction for possession of a dangerous drug (OCGA § 16-13-71 (b) (941)) was reversed because the drugs found in the defendant’s possession were in the original prescription container that had been dispensed to the defendant’s brother.

Appellant argues that because his travelling companion had a prescription for the controlled substances at issue, his possession of the drugs was not unlawful because there is no statutory requirement that controlled substances be in the original prescription container. OCGA § 16-13-75, which proscribes possession of dangerous drugs outside the original prescription container, does not apply to controlled substances, although the predecessor statute (Ga. Code Ann. § 79A-812), which was repealed by the Act (Ga. Laws 1974, p. 221), did apply to narcotic drugs. However, under our legislative and regulatory scheme, unlawful possession of a controlled substance is a felony and thus is treated as a more serious offense than unlawful possession of a dangerous drug, which is a misdemeanor. Compare OCGA § 16-13-30 with OCGA § 16-13-79. We find no indication that the General Assembly intended to authorize possession of controlled substances, a felony, allegedly prescribed for someone other than a defendant but not in the original container when found in the defendant’s possession while outlawing possession of dangerous drugs, a misdemeanor, under the same circumstances. Accordingly, we are constrained to hold that the evidence adduced in the instant case was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of unlawful possession of controlled substances pursuant to the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 8, 1990

Rehearing denied February 27, 1990

Janet G. Scott, Michelle G. Lundy, for appellant.

W. Fletcher Sams, District Attorney, for appellee.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    A90A0004.
    KING v. THE STATE.
    (391 SE2d 660)
   Deen, Presiding Judge.

The appellant, Danny King, was convicted of simple battery, child molestation, and aggravated child molestation. In March 1988 King beat the woman with whom he had lived for five years. After King left to go to work, police were called to the scene, at which time the battery victim’s four-year-old daughter indicated that King had molested her. A videotape interview of the child was conducted in which the child demonstrated that King had inserted a thermometer into her vagina. In October 1988 the child indicated that King had continued to molest her. During interviews and another videotape, the child described occasions when King had lain on top of her with his penis out; when King had actually inserted his penis inside her vagina; and when King had forced her to suck his penis and attempt to masturbate him. Held:

1. King contends that the trial court erred in finding the child victim, who was five years old at the time of trial, competent to testify. At the competency hearing, the child testified that taking an oath meant one had to tell the truth and that one would get punished for not telling the truth. The trial court thus did not err in finding the child victim competent to testify. In the Interest of J. E. L., 189 Ga. App. 203 (375 SE2d 490) (1988).

2. King also contends that the trial court erred in admitting the videotaped interviews of the child victim, without a hearing to determine the indicia of reliability of the statements. OCGA § 24-3-16 does not require such a hearing for that determination, Reynolds v. State, 257 Ga. 725 (2) (363 SE2d 249) (1988), but, in any event, the record shows that the trial court did in fact conduct such a hearing. Moreover, we find no error in the trial court’s conclusion that reliability of the videotaped interviews was indicated by the neutrality of the interviewer and place of interview, and the spontaneity of the interviews conducted shortly after the alleged molestation.

3. The trial court properly denied King’s motion to dismiss the criminal charges concerning the child molestation which asserted a denial of his constitutional right to cross-examine the child victim. Trial counsel was allowed to cross-examine the child, but complained that the child’s testimony that she could not remember in response to many of his questions effectively denied the appellant the right to an effective cross-examination. However, the record shows that the child testified concisely and thoroughly about the acts of molestation on both direct and cross-examination, when asked. Almost all of the questions to which the child responded she could not remember addressed peripheral matters, and we agree with the trial court that no constitutional deprivation occurred.

4. Two physicians testified about their examinations of the child. One physician recounted that her March 1988 examination of the child revealed a vaginal opening exceeding 4 millimeters, which was abnormally large for a child her age and size; the hymen also was stretched and loose. The other physician testified that his October 1988 examination of the child revealed a vaginal opening considerably greater than 4 millimeters, with a stretched and flaccid hymen. He had not precisely measured the vaginal opening, but indicated that his thumb or finger could easily fit inside without hurting the child.

During closing argument, the prosecutor stated that the second physician had testified that the child’s vagina was enlarged to a centimeter. The trial court overruled the appellant’s objection that the prosecutor was arguing facts not in evidence, choosing instead to leave the matter up to the recollection of the jury. There is no question that the prosecutor’s argument was literally inaccurate, although the statement may have been a permissible inference from the physician’s testimony that the child’s vaginal opening easily accommodated his finger or thumb. However, even if the prosecutor’s statement was not a permissible inference, we find no harmful error since the real disputed issue did not concern the size of the child’s vaginal dilation, but the cause of it. It is highly probable that the uncorrected argument of the prosecutor, which did not introduce a material fact not in evidence, did not contribute to the verdict. Jones v. State, 159 Ga. App. 704 (285 SE2d 45) (1981).

Decided February 12, 1990

Rehearing denied February 27, 1990

Ronald C. Conner, for appellant.

Robert F. Mumford, District Attorney, Nancy F. Nash, Assistant District Attorney, for appellee.

5. We find no reversible error in the trial court’s disallowing defense counsel’s cross-examination of certain State’s witnesses about their knowledge of the child’s sexual conduct with other children. Evidence of a victim’s reputation for nonchastity is generally inadmissible in a child molestation case. Vargas v. State, 184 Ga. App. 650 (1) (362 SE2d 461) (1987), and, in any event, the appellant was allowed to adduce that evidence completely during the presentation of his defense.

6. King acknowledges that he acceded to trial counsel’s recommendation that he not testify at the trial, but contends that the trial court should have conducted a hearing to determine whether King voluntarily waived his right to testify. He cites no authority for requiring such a hearing and we decline to establish it. The decision not to have a criminal defendant take the witness stand at trial is a matter of trial strategy that the appellate courts rarely second-guess. See Young v. Ricketts, 242 Ga. 559 (1) (250 SE2d 404) (1978).

7. There is no merit to King’s contention on appeal that his trial counsel rendered ineffective assistance of counsel. King asserts two bases for finding ineffectiveness: (1) trial counsel’s failure to have King testify; and (2) trial counsel’s failure to object to the competency of the child as a witness.

“A case may arise where the refusal by counsel to put the defendant upon the stand would require a finding of ineffective assistance of counsel; however, we do not find such circumstances present in this case.” Young v. Ricketts, supra at 561. Concerning the competency of the child, the record shows that the trial court conducted the pre-trial hearing to determine the competency of the child as a witness, pursuant to trial counsel’s motion. As discussed in Division 1, the evidence supported the trial court’s finding of competency, and trial counsel’s failure to object further to the finding of competency was not ineffective assistance of counsel. As Judge Bleckley noted, “[t]o yield a false position, as soon as it is discovered to be false, argues true professional manhood. Nothing but truth, or what is believed to be truth, is worthy to be championed by a lawyer.” Clower & Culpepper v. Wynn, 59 Ga. 246, 248 (1876).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in Divisions 1, 2, 3, 4, 5, and 7 and in the judgment.


author: Cooper, Judge.

text:
    A89A1746.
    In the Interest of A. B., a child.
    (391 SE2d 683)
   Cooper, Judge.

While executing a warrant authorizing the search of appellant’s residence for cocaine, an investigating officer found a handgun in appellant’s bedroom between the mattress and frame of the bed. A second officer, present to film the search, immediately recognized the gun as possibly being one stolen in a case he was investigating. As the search for drugs continued in other parts of the house, the officers confirmed that the serial number on the gun found matched that of the gun reported stolen. Appellant was arrested and charged with theft by receiving and possession of marijuana. The juvenile court’s denial of appellant’s motion to suppress evidence and his subsequent adjudication of guilt of the delinquent act of theft by receiving form the basis of this appeal.

1. Appellant, in his first and second enumerations of error, contends that the juvenile court erred in denying appellant’s motion to suppress specifically by finding that the discovery and seizure of the gun met the requirements of the plain view doctrine. OCGA § 17-5-21 (b) authorizes an officer in the process of executing a lawful search warrant “to seize any stolen property, contraband, or other item, other than private papers, which he has probable cause to consider tangible evidence of the commission of a crime, even though the property is not listed in the warrant. [Cits.]” Whittington v. State, 165 Ga. App. 763, 764 (302 SE2d 617) (1983).

Appellant does not dispute that the officers were conducting a lawful search. During the course of the search for drugs, the officer looked under the mattress, since this was a place where drugs were discovered in a previous raid, and found the gun. Thus, the officer was not engaged in a general exploratory search. “A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. [Cit.] . . . But it must be immediately apparent to the investigating officer that the property to be seized is contraband.” Cook v. State, 134 Ga. App. 712, 715 (215 SE2d 728) (1975). The second officer’s immediate recognition of the gun as one having possibly been stolen makes its seizure lawful. “It is not necessary under the law that the officer know with certainty that the item is stolen at the time of the seizure, only that there be probable cause to believe this is the case. [Cit.]” Whittington v. State, supra at 765. The evidence demonstrates that prior to the search, the officer not only had a description of the gun from a theft report, but he also had information from two sources that the appellant allegedly had the stolen gun. We conclude there was probable cause to seize the gun and no rights were violated by the seizure.

Decided February 28, 1990.

W. Donald Kelly, for appellant.

John M. Ott, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

2. In his third enumeration of error, appellant contends that the evidence was insufficient to justify an adjudication of guilt on the charge of receiving stolen property. Reviewing all the evidence in the light most favorable to the juvenile court’s findings, we conclude that a rational trier of fact could have found appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 433 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Contrary to appellant’s contention in his fourth enumeration of error, the evidence does not affirmatively demonstrate that others had equal access to appellant’s room. Appellant has not rebutted the presumption that an owner of property is the owner of what is contained therein when he exercises immediate and exclusive possession of the premises. Farmer v. State, 152 Ga. App. 792, 795 (264 SE2d 235) (1979). The evidence shows that the gun was discovered hidden in a bed in appellant’s bedroom, where he slept and kept his belongings. The record further indicates that previously, appellant had hidden jewelry in the bed. While it appears that there were several visitors to the room, appellant could not identify anyone, other than himself and his brother, who could have had equal access to the room sufficient to rebut the presumption. See Rush v. State, 188 Ga. App. 520 (1) (373 SE2d 377) (1988). Accordingly, the juvenile court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A89A1826.
    EFFORT ENTERPRISES, INC. v. CROSTA et al.
    (391 SE2d 477)
   Carley, Chief Judge.

Appellee-plaintiffs brought this tort action, alleging that their jewelry had been converted while their household goods were being moved into a new location by appellant-defendant’s employees. Appellant answered and subsequently moved for summary judgment. The undisputed evidence showed that appellees’ jewelry was not among the items appellant had contracted to transport, but that appellees themselves had retained exclusive control and possession of the jewelry. According to appellees, the jewelry had been placed on the bathroom vanity in their new residence prior to the arrival of appellant’s employees with the household goods. It was after appellant’s employees had left for lunch that the absence of the jewelry was first noticed. Appellant submitted the affidavits of its officers who averred that no employee had been instructed to commit the act of theft of appellees’ jewelry and that such an act had not been ratified. On this evidence, the trial court denied appellant’s motion for summary judgment, but certified its order for immediate review. Appellant’s application for an interlocutory appeal to this court was granted.

1. Relying on Bricks v. Metro Ambulance Svc., 177 Ga. App. 62 (338 SE2d 438) (1985), appellees urge that a genuine issue of material fact remains as to the breach of the duty owed by appellant as a common carrier to exercise extraordinary care to protect against the loss of the jewelry.

OCGA § 46-9-1 provides that a common carrier is held to a standard of extraordinary diligence and is the insurer of the goods it carries, except in cases of loss caused by an act of God or public enemies. OCGA § 46-9-132 provides that a common carrier is also held to a standard of extraordinary diligence to protect the lives and persons of its passengers. The facts in Bricks, supra at 66-67 (1), did “not comfortably fit either [code section]. However, the rationale of these code sections . . . centers about the issue of whether the carrier has exclusive custody, and this rationale leads us inexorably to the conclusion that in the sui generis case of the ambulance where the carrier has exclusive control of a sick, injured or dying person and of his personal effects, it should be liable for loss during the time of carriage of such goods and for personal injury, except for acts of God and public enemies.” (Emphasis in original.) Thus, the facts in Bricks were such as to warrant application of the rule, arising from the special relationship between carrier and passenger, that the carrier is absolutely liable for the wilful and wanton acts committed by its servants against its passengers. Bricks v. Metro Ambulance Svc., supra at 67-68 (1).

As in Bricks, the facts of the instant case do not “comfortably fit either” OCGA § 46-9-1 or 46-9-132. However, unlike Bricks, wherein both code sections were ostensibly applicable, the facts of the instant case do not “comfortably fit either” code section because neither of those statutory provisions is applicable. Although appellant is a common carrier, it did not carry appellees as passengers and it did not carry their allegedly converted jewelry. Before appellant can be held liable for the loss of the jewelry in its capacity as a common carrier, the jewelry must have been delivered to appellant for immediate transportation. See generally Bell v. Fitz, 78 Ga. App. 28 (1) (50 SE2d 241) (1948). Under the undisputed evidence, the jewelry was never delivered to appellant for transportation, but remained in the exclusive control of appellees until the time of its theft. Accordingly, appellees’ reliance upon Bricks is misplaced. Appellant did not owe appellees a duty of extraordinary diligence to protect the jewelry and appellant is not absolutely liable to appellees for the alleged theft.

2. Since appellant cannot be held liable under the theory that it breached a duty owed in its capacity as a common carrier, the question to be resolved is whether a genuine issue of material fact remains as to appellant’s vicarious liability in its capacity as the employer of the alleged thieves.

The law provides that “ ‘[t]he master is liable for the willful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will.’ [Cits.]” (Emphasis supplied.) Gaylor v. Jay &c. Chrysler-Plymouth-Dodge, 183 Ga. App. 255, 256-257 (358 SE2d 655) (1987). While this legal principle may be simply stated, its application has proven to be problematic. It has been recognized that the cases involving the issue of an employer’s vicarious liability for the wilful torts of his employees, “can only be reconciled by an approach which directs its inquiry, not to authority to commit the tort but to authority to accomplish a purpose in pursuance of which a wilful tort is committed.” (Emphasis omitted.) Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 135 (4) (220 SE2d 707) (1975). Thus, the test of liability is whether the tort “ ‘ “was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” ’ [Cits.] If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. [Cit.] Thus, a tort committed by a servant while engaged in the master’s business is not necessarily a tort committed in the course of his employment and in the prosecution of the master’s business. [Cit.] Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable. [Cit.]” Wittig v. Spa Lady of Marietta, 182 Ga. App. 689, 690 (356 SE2d 665) (1987).

The instant case is not one wherein an employee “merely carried out [the] employer’s business, although perhaps over-zealously. . . .” Odom v. Hubeny, Inc., 179 Ga. App. 250, 252 (1) (345 SE2d 886) (1986). Compare Sanders v. Brown, 178 Ga. App. 447, 451 (3) (343 SE2d 722) (1986); Prince v. Brickell, 87 Ga. App. 697, 699 (2) (75 SE2d 288) (1953). Appellant’s business is to carry the goods of others. If appellant’s employees stole goods which were in appellees’ exclusive control, they were in no way acting in pursuit of appellant’s business. The alleged theft was “unrelated to the task of [moving appellees’ belongings] and [was] completely personal in nature. [Cits.] The mere fact that the [offense] occurred during a time of ostensible employment in the [appellees’] home is not dispositive on the question of scope of employment. [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (2) (307 SE2d 129) (1983). See also Wittig v. Spa Lady, supra at 690; Community Theatres Co. v. Bentley, 88 Ga. App. 303, 306 (76 SE2d 632) (1953).

Decided February 28, 1990.

MacDouglad & Hendon, Lagrant Anthony, for appellant.

Sutherland, Asbill & Brennan, Elizabeth C. Boswell, Charles T. Lester, Jr., for appellees.

“As the only business of [appellant] was to [move its customers’ belongings], any action by [its employee] in stealing [jewelry] would be personal and outside the scope of . . . employment. This court has held that an agent was acting on his individual responsibility, not on his master’s business, when he committed an offense . . . arising out of a personal matter. [Cit.]” Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 415 (265 SE2d 335) (1980). See also Flynn v. Gold Kist, 181 Ga. App. 637, 641 (2) (353 SE2d 537) (1987). “The evidence on motion for summary judgment clearly and indisputably indicates that the [employee or] employees were involved in a personal matter and not in the furtherance of the employer’s business, nor were they acting within the scope of their employment or at the employer’s command. Accordingly, summary judgment [should have been] granted.” Jones v. Reserve Ins. Co., 149 Ga. App. 176, 179 (3) (253 SE2d 849) (1979).

Judgment reversed.

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


text:
    A89A1927.
    WARD v. WARD.
    (391 SE2d 480)
   Cooper, Judge.

Following the trial court’s modification of an award of visitation, we granted appellant’s application for discretionary appeal.

Appellant and appellee’s final decree of divorce, entered in the Superior Court of Clayton County during the November 1988 term of court, awarded custody of one of the minor children to appellee, with liberal visitation to appellant. On February 6, 1989, the first day of the February 1989 term, appellee filed a motion to amend the award of visitation in the Superior Court of Clayton County. Although the action was styled the same as the divorce action, the clerk assigned a new case number. Appellant responded contending that since she was now a resident of Fayette County, venue was improper in Clayton County. At the hearing on the motion, the court denied appellant’s motion to transfer the case, directed the court to change the case number to that of the divorce action, and modified appellant’s visitation.

1. We deal preliminarily with appellee’s contention that the motion to modify visitation was filed within the same term of court in which the final decree of divorce was entered. “ ‘The trial court has the inherent power to amend or set aside a judgment for any “meritorious reason” provided the motion to set aside is filed during the term in which the judgment was rendered. [Cit.]’ ” Goode v. O’Neal, Banks & Assoc., 165 Ga. App. 162 (300 SE2d 191) (1983). Appellee contends that his secretary tendered the motion to the court on February 3, 1989, the last day of the November 1988 term, but the motion was not filed until three days later because the judge was unavailable to sign a rule nisi. Since the record does not reflect that the motion was filed within the term, we find appellee’s contention to be without merit.

2. Appellant enumerates three errors of the trial court, all of which can be resolved by our consideration of one issue: whether the trial court had jurisdiction to entertain the motion to modify visitation. The parties to this appeal each rely on different Code sections. Appellant relies on OCGA § 19-9-23 (b), which provides: “A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.” Appellee relies on OCGA § 19-9-1 (b), which provides: “In any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party. . . , that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration. ...”

In Bennett v. Wood, 188 Ga. App. 630 (1) (373 SE2d 645) (1988), appellee, seeking modification of his visitation with his minor son who resided with appellant, argued that pursuant to OCGA § 19-9-3 (b) his action was properly brought in the court issuing the last judgment effecting visitation. Appellant argued that under OCGA § 19-9-23 (a), venue was only proper in the county where she resided. We recognized an apparent conflict between the language of OCGA § 19-9-23 and that of OCGA §§ 19-9-1 (b) and 19-9-3 (b), and harmonized these provisions “by holding that [19-9-1 and 19-9-3] come into play only when jurisdiction and venue are also pioper.” Bennett v. Wood, supra at 632. Inasmuch as the record shows that the divorce action terminated with the entry of a final judgment and decree; that appellant subsequently changed her residence to Fayette County; and that appellee filed his motion to modify outside the term of court, we find the trial court erred in ruling on appellee’s motion to modify visitation. Appellee’s reliance on Blalock v. Blalock, 247 Ga. 548 (1) (277 SE2d 655) (1981) is misplaced. Blalock involved a motion for contempt, in which a modification of visitation was also sought, and we held that such an action was not a new action, but simply a motion in the original case.

Decided February 28, 1990.

McNally, Fox, Mahler & Cameron, Philip P. Grant, for appellant.

Joseph R. Baker, for appellee.

At the hearing on appellee’s motion to modify visitation, appellant moved for an order transferring the case to Fayette County. “Ordinarily, where an action is brought and improper venue is alleged, the Uniform Transfer Rules apply [cit.], and the action is transferred rather than dismissed.” Bennett v. Wood, supra, 632. However, since a final judgment and decree had been entered prior to appellee’s motion to modify visitation, there was no action pending to transfer to Fayette County. See Bennett v. Wood, supra.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1978.
    MITCHELL et al. v. HAYGOOD’S HAULING & GRADING, INC.
    (391 SE2d 481)
   Cooper, Judge.

Appellants are the heirs of Jessie Mitchell, who was buried in a cemetery adjacent to a parcel of property purchased for the development of an office building. Appellee was a grading subcontractor on the construction project. This action was brought by appellants against appellee and several other defendants, seeking actual and punitive damages as a result of the allegedly negligent or intentional destruction of the grave of their brother, the interference with their right of easement to the grave, and the destruction of the grave marker.

In response to appellee’s motion for summary judgment, appellants filed several opposing affidavits. On the morning of the hearing on the motion for summary judgment, appellee filed a pleading captioned “Objections to Affidavits and Motion to Strike,” objecting to certain portions of the affidavits filed by appellants. The trial court sustained appellee’s objections to the affidavits, and after hearing argument, granted appellee’s motion for summary judgment.

1. Appellants first contend that the trial court erred in striking their affidavits and in granting summary judgment to appellee. On motion for summary judgment, the evidence must be construed most favorably to the party opposing the motion, and the non-moving party must be given the benefit of all favorable inferences and reasonable doubts which arise from the evidence. Georgia Farm &c. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593 (1) (379 SE2d 619) (1989). However, in deciding a motion for summary judgment, “a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. [Cits.]” (Punctuation omitted.) Dougherty County Farm Bureau v. Hinman, 184 Ga. App. 244 (1) (361 SE2d 236) (1987).

The affidavit of Jerry Haygood in support of appellee’s motion for summary judgment is based on personal knowledge and sets forth the following facts: that he inspected the subject property to determine whether any graves existed outside the boundaries of the cemetery; that he found no evidence of graves or grave markers; that his employees took great care to see that no graves or grave markers were disturbed; that no graves or grave markers were disturbed by appellee during work on the project; that appellee did not interfere with ingress and egress to the grave of Jessie Mitchell; that appellee did not disinter or otherwise dispose of the remains of Jessie Mitchell; and that appellee did not commit a trespass against the grave or grave marker of Jessie Mitchell. Appellants allege error in the trial court’s striking of certain portions of the opposing affidavits submitted in response to appellee’s motion.

We have reviewed appellants’ affidavits and the record and conclude that the admissible portions of appellants’ affidavits create at best only an inference that appellee disturbed the grave with no direct evidence to refute appellee’s uncontradicted and unimpeached affidavit that it did not disturb the grave of Jessie Mitchell. “ ‘ “When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” [Cits.]’ ” Dougherty County Farm Bureau v. Hinman, supra at 245. Accordingly, we find that any error the trial court may have committed in striking admissible portions of appellants’ affidavits was harmless and that the trial court did not err in granting appellee’s motion for summary judgment.

2. Appellants contend that the trial court improperly heard the motion to strike because it was not timely filed. We disagree. Although appellants’ opposing affidavits were filed before the statutory deadline (see OCGA § 9-11-6 (d)), we find no requirement that the movant object to the opposing affidavits prior to the time when the affidavits will actually be considered. Thus, it was not error for the trial court to hear argument on appellee’s written objections to appellants’ opposing affidavits.

Decided February 28, 1990.

Maddox, Maddox & Maddox, Tommy Lee Maddox, for appellants.

Freeman & Hawkins, Lawrence J. Myers, for appellee.

3. Appellants’ final enumeration of error contending that the trial court did not consider the entire record is without merit. “We will presume that the trial court as a public official faithfully and lawfully performed the duties devolving upon him by law. [Cit.] ” Smith v. Jones, 154 Ga. App. 629 (1) (269 SE2d 471) (1980).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A2018.
    GUELY et al. v. HINSON et al.
    (391 SE2d 483)
   Cooper, Judge.

Appellant, the driver of a vehicle which was struck in the rear by appellee’s vehicle, and her husband brought an action for personal injuries and loss of consortium, respectively. The jury returned a verdict in favor of the appellant wife on the claim for personal injuries, but returned a verdict for appellee on the claim for loss of consortium. The appellee and her father were named defendants as the vehicle involved was a family purpose vehicle. Appellants raise ten enumerations of error in their appeal of the judgment entered upon the verdict.

1. In enumerations 1 and 2, appellants contend that error occurred when appellants’ counsel was prohibited by the trial court from asking questions of the appellee’s father regarding an insurance claim form mentioned to the appellant wife and the property damage to her car. Inasmuch as appellants’ counsel’s question was only relevant to the question of liability, even if it were error to disallow it (which we do not determine), the trial court’s ruling was harmless since a verdict was rendered for the appellant wife. See Maloy v. Dixon, 127 Ga. App. 151 (2) (193 SE2d 19) (1972).

2. The third enumeration asserts error in the trial court’s denial of appellants’ motion for a directed verdict on the issue of liability. Any such error, if committed, was harmless to appellants since the jury returned a verdict in their favor on the issue of liability. Butler v. Anderson, 163 Ga. App. 547 (2) (295 SE2d 216) (1982). The case cited by appellants, Davis v. Pachuilo, 169 Gk. App. 677 (314 SE2d 692) (1984) is distinguishable from the instant case because the court in the instant case gave no charges on comparative negligence, avoidance or contributory negligence and also because the jury verdict was in fact more than the appellant wife’s medical expenses.

3. Appellants next contend that error occurred in allowing the appellee to make the final closing argument. The record shows that appellee was entitled to make the final closing argument pursuant to Uniform Superior Court Rule 13.4 since the appellee did not introduce or attempt to introduce any evidence at trial. Further, “[appellants’] failure to object promptly constitutes a waiver.” Davis v. Davidson, 175 Ga. App. 451 (3) (333 SE2d 648) (1985).

4. The fifth enumeration of error recites that the court’s refusal to instruct the jury to disregard statements in the closing argument of appellee constituted error. The closing arguments were not transcribed, therefore we cannot review the alleged error. “The burden is on him who asserts error to show it affirmatively by the record [cit.]. The brief cannot be used in lieu of the record for adding evidence to support a claim of error. [Cit.]” (Punctuation omitted.) Cantrell v. Red Wing Rollerway, 184 Ga. App. 506 (2) (361 SE2d 720) (1987). Furthermore, appellants’ objection was not made until the trial was completed, the charge to the jury was made, and the jury had retired. Such an objection was not timely and therefore waived. Davis, supra at Division 3; Hospital Auth. &c. v. Eason, 113 Ga. App. 401 (13) (148 SE2d 499) (1966), rev’d on other grounds, 222 Ga. 536 (150 SE2d 812) (1966).

5. The next enumeration asserts error in the charge given on legal accident. Since the jury returned a verdict for the appellant wife, it is apparent that this charge was not applied. Therefore, any error that may have been committed was harmless. Stroud v. Woodruff, 183 Ga. App. 628 (3) (359 SE2d 680) (1987).

6. Appellants’ seventh enumeration that error occurred because the jury was given an instruction on “serious injury” is without merit. The charge given was a correct statement of the law, and the evidence authorized such a charge. The doctor’s testimony could raise an inference that the appellant wife’s damages were due to other causes. Additionally, the doctor and the chiropractor that testified at trial first saw the appellant wife at least a year-and-a-half after the accident. This time lag, together with the testimony, was evidence that the jury was entitled to consider in their determination of whether the appellee’s conduct resulted in a “serious injury” to the appellant wife. Loyd v. Henry, 174 Ga. App. 49 (2) (329 SE2d 195) (1985).

7. Likewise, appellants’ eighth enumeration is without merit. The trial court did not err in refusing to charge on OCGA § 40-6-163 (a) since no written request to charge this statute was submitted by appellants. The record reveals no evidence of an oral request. Dept. of Transportation v. Pilgrim, 175 Ga. App. 576 (1) (333 SE2d 866) (1985).

Decided February 28, 1990.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellants.

8. Appellants next contend that the judgment of the trial court is inadequate to compensate appellants as a matter of law. The amount of a jury verdict for pain and suffering is determined by the “enlightened conscience of impartial jurors.” Palmer v. Farmer, 184 Ga. App. 753 (3) (362 SE2d 453) (1987). Unless a jury award “is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors,” it will not be overturned. Cullen v. Timm, 184 Ga. App. 80 (2) (360 SE2d 745) (1987). The jury in the instant case awarded all the special damages sought and awarded an amount in addition thereto. In light of the evidence presented, this award did not raise a clear implication of bias, prejudice or gross mistake, and the enumeration is without merit.

9. Appellants contend, in the last enumeration, that the judgment in favor of appellee on the appellant husband’s consortium claim is contrary to the evidence. This court does recognize the rule that a consortium action is derivative and when it is tried along with the primary action, a jury cannot render inconsistent verdicts. Nelson & Budd v. Brunson, 173 Ga. App. 856 (6) (328 SE2d 746) (1985). However, in view of the evidence produced at trial, we find that the verdicts rendered are not inconsistent. The evidence on the consortium issue was not uncontradicted, and the jurors were free to evaluate the witnesses, the testimony and the evidence produced to determine if the appellant husband was damaged due to loss of consortium. In the negligence action, the jury awarded the appellant wife a small amount over the documented special damages. The jury could have determined that the appellant wife’s injuries were such that her husband suffered no compensable damage for loss of consortium. “Damages for loss of consortium, . . . are . . . not capable of exact pecuniary measure, and must be left to the enlightened conscience of impartial jurors taking into consideration the nature of the services, society, companionship and all the circumstances of the case. [Cit.]” Hospital Auth. of Walker &c. v. Smith, 142 Ga. App. 284 (4) (235 SE2d 562) (1977). In the absence of bias and prejudice, the verdict will not be overturned for inadequacy. Rutland v. Fuels, Inc., 135 Ga. App. 143 (2) (217 SE2d 167) (1975). No such bias or prejudice appearing in this case, the jury verdict should stand.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Divine, Wilkin, Deriso & Raulerson, R. Kelly Raulerson, for appellees.


text:
    A89A1775.
    RAYBURN v. THE STATE.
    (391 SE2d 780)
   Beasley, Judge.

The appeal, following denial of new trial, is from Rayburn’s convictions for three counts of child molestation, OCGA § 16-6-4 (a), and one count of aggravated child molestation, OCGA § 16-6-4 (c).

1. Appellant contends that the trial court erred in failing to direct his acquittal in that a rational trier of fact could not have found him guilty beyond a reasonable doubt because there were extensive conflicts in the evidence, such as entries in one alleged victim’s diary, and because of the “obvious” collusive nature of the purported victims’ testimony.

The answers to whether or not the victims, who were appellant’s stepdaughter and the stepdaughter’s friend, collaborated on their testimony and whether or not there was material conflict in the evidence are governed by determination of the credibility of the victims and other witnesses. “It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. [Cit.]” King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). The evidence presented at trial was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of the acts of molestation charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence supporting the verdict was not uncredible as a matter of law nor were the conflicts irreconcilable.

2. Appellant contends that OCGA § 24-3-16 is violative of the right to confrontation under the Federal Constitution. The statute is not constitutionally deficient in the manners complained of. Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987). As in Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987) and Lawhorn v. State, 257 Ga. 780 (364 SE2d 559) (1988), the victims testified in addition to there being testimony about their out-of-court statements. No ruling is made about appellant’s rights under the Georgia Constitution, such as Art. I, Sec. I, Par. XIV, inasmuch as it was not raised. Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986).

3. Appellant further contends that even assuming OCGA § 24-3-16 is not unconstitutional per se, admission of testimony by the stepdaughter’s grandmother and that of a Department of Family & Children Services’ caseworker, violated the Sixth and Fourteenth Amendments by application. He charges that such testimony may not be presented by the State in addition to that of the victim under the procedure in Sosebee and that the testimony did not meet the statute’s reliability standard.

Contrary to appellant’s contention, the Sosebee procedure specifically provides for testimony by the alleged child victim as the court’s witness, upon request of either the State or the defendant, when the prosecution invokes the Child Hearsay Statute to introduce out-of-court declarations by the child and neither party wishes to call the child as its own witness. Sosebee at 299. It actually contemplates testimony about what the child victim said and did relevant to the alleged sexual contact from both the child and those witnessing the child’s later reaction, even if the hearsay may be “bolstering.” The purpose of this procedure is to allow a defendant to exercise his right of confrontation without requiring him to be cast unfavorably before the jury for forcing the child to testify. Any “bolstering” can be explored by defendant in cross-examination.

By the court’s admission of the out-of-court declarations, the court implicitly found the testimony to have sufficient indicia of reliability as the statute requires. OCGA § 24-3-16. Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988). Such factors as atmosphere, circumstances, spontaneity, and demeanor should be considered in determining reliability. Ortiz v. State, 188 Ga. App. 532, 535 (3) (374 SE2d 92) (1988); Newberry v. State, 184 Ga. App. 356 (361 SE2d 499) (1987). The grandmother observed her granddaughter as being bothered, walking the floor, and not sleeping well; she was there to hear the granddaughter’s spontaneous statements about the molestation and about the victim’s concern for her two other sisters. The very next morning after discussing the molestation with her grandmother, the stepdaughter victim made substantially the same statements to the caseworker. These circumstances support reliability.

4. Appellant contends that the trial court erred in refusing to allow certain surrebuttal testimony from his oldest brother.

Appellant had introduced testimony from another brother and his wife that appellant’s younger daughter, who testified for the State as to similar acts of molestation by her father, had told them she had said her father molested her because she was frightened by the investigator. In rebuttal to this testimony, the State recalled the younger daughter who testified that she did not remember telling her aunt and uncle that she was not being truthful. Appellant in surrebuttal sought to introduce testimony by his older brother, who had physical custody of this younger daughter prior to and during the trial, that the younger daughter had told him that her father had not touched her. This was offered to support the older brother’s testimony that the victim recanted.

Decided February 19, 1990

Rehearing denied March 5, 1990

Word & Flinn, Gerald P. Word, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

There was no evidence that appellant’s oldest brother was present during any conversations between appellant’s daughter and her other uncle and aunt; his testimony could not have directly rebutted the daughter’s rebuttal of her aunt and uncle’s testimony. The trial court did not abuse its discretion in not allowing the attempted surrebuttal. See Burden v. State, 182 Ga. 533, 534 (3) (186 SE 555) (1936).

5. Appellant contends the trial court erred in instructing the jury that “you are not required to surrender” rather than “you should not surrender” an honest conviction simply to get along with the other jurors or for the purpose of reaching a verdict. He maintains that the charge gave the jury the impression that each was free to surrender his or her honest convictions for the sake of getting along with other jurors or to reach a verdict. A reasonable reading of the charge in its totality, see Howell v. State, 157 Ga. App. 451, 457 (6) (278 SE2d 43) (1981), would not have left the jury with such a notion. To the contrary, the charge encouraged each juror not to yield his or her honest conviction.

Judgment affirmed.

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


author: Carley, Chief Judge. Deen, Presiding Judge,

text:
    A89A1802.
    EASON v. THE STATE.
    (391 SE2d 427)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The cocaine had been analyzed by the State Crime Lab. Appellant caused the State Crime Lab chemist who had made the analysis to be served with a subpoena for the production of her work product. On the State’s motion, the trial court quashed the subpoena. Appellant enumerates this ruling as error.

This issue was addressed in and would seemingly be controlled by the decision in Dye v. State, 177 Ga. App. 813, 814 (3) (341 SE2d 469) (1986). Appellant urges, however, that Dye should be overruled because the holding of that case is violative of a criminal defendant’s constitutional rights, particularly the Sixth Amendment right to confront the witnesses against him.

“ ‘(T)he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ’ [Cits.]” (Emphasis omitted.) United States v. Owens, 484 U. S. 554, 559 (108 SC 838, 98 LE2d 951) (1988). The record shows that appellant was afforded the opportunity to conduct a thorough and sifting cross-examination of the State’s expert concerning her testing methods and the results of her analysis. As against the State’s assertion of the need for nondisclosure, appellant was merely denied access to the entirety of the expert’s work product which underlay her analysis. Thus, the determinative constitutional issue is whether this lack of access to the expert’s work product demonstrates that the cross-examination otherwise afforded to appellant was not effective. As noted in Dye, appellant could have availed himself of the opportunity to have an expert of his own choosing conduct an independent test of the alleged cocaine and, “[assuming a differing conclusion, appellant’s expert would then have been in a position to dispute the State’s findings. However, in the absence of such an independent test, the entirety of the work product of the State’s expert would not be ‘unquestionably relevant and material to the defense,’ as against the State’s assertion of the need for nondisclosure. Under those circumstances, there would be no demonstrable ‘indication that the (S)tate’s expert was incompetent or biased or that the chemical analysis performed by him might otherwise be unreliable. . . .’ [Cit.]” Dye v. State, supra at 815 (3).

Absent independent testing and a differing result, the request for unlimited access to the work product of the State’s expert would constitute no more than a request to engage in a fishing expedition and to conduct the cross-examination of the State’s expert “in whatever way, and to whatever extent, the defense might wish.” “That appellant chose not to take advantage of [the independent testing] procedure does not mean that it was unavailable to him. What it does demonstrate is that the trial court was authorized to conclude that ‘appellant failed to show that the matters sought (ostensibly for purposes of) cross-examination (were) in some manner relevant to the issues in the case on trial, (cits.) and hence that the lack of the material (would impair) his defense so as to deprive him of a fair trial.’ [Cit.] To hold otherwise would constitute a judicial usurpation of a legislative function. Had the General Assembly intended that defendants in criminal cases be furnished with such material as was sought by appellant merely upon their asking for it, OCGA § 17-7-211 would so provide. [Cit.] To adopt appellant’s contention regarding what is subject to a subpoena would obviate the limited parameters of OCGA § 17-7-211 established by the legislature, there being no incentive to resort to OCGA § 17-7-211 if a subpoena offered an unlimited range of obtainable material from the State’s expert. In the instant case, appellant could have sought an independent examination and, thereafter, devised his plans for cross-examination of the State’s expert as to his testing methods and results. Appellant did not do this. Thus, appellant cannot be heard to complain that his only method of effective defense as against [the sale] of contraband was frustrated.” Dye v. State, supra at 815 (3).

Appellant finds an inequity where none exists, and urges a remedy where none is warranted. Existing constitutional and statutory law already affords one who is charged with a drug violation access to a wide range of discovery procedures in order to enable him to prepare an effective defense. Under the circumstances which existed in Dye v. State, supra, and which exist in this case, there is no authority or justification for holding that the defendant in a drug case who has not availed himself of those existing discovery procedures can successfully assert that he was denied the opportunity to prepare an effective defense as against the State’s proof that the substance at issue was contraband. Absent a request for independent testing and a differing result, the defendant in a drug case is afforded the opportunity for an “effective cross-examination” of the State’s expert as to his testing methods and results without having access to the entirety of his work product.

2. The trial court charged the jury that witnesses are presumed to speak the truth unless they are impeached as provided by law. Although the trial court did not err in giving this charge, we would reiterate that it should not be employed in criminal cases in this State. See Noggle v. State, 256 Ga. 383, 385 (4) (349 SE2d 175) (1986); Chews v. State, 187 Ga. App. 600, 605 (7) (371 SE2d 124) (1988).

3. Appellant’s further enumerations of error which address the trial court’s charge have been considered and found to be without merit.

4. Appellant was sentenced to twenty years, ten years to serve and ten years on probation. Among the conditions of appellant’s probation was the payment of a $5,000 fine. The trial court erred in making appellant’s payment of a fine a condition of probation without first conducting a hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983). See Gaither v. Inman, 253 Ga. 484 (322 SE2d 242) (1984); Day v. State, 188 Ga. App. 648, 651 (10) (374 SE2d 87) (1988). “Accordingly, appellant’s conditionally-probated sentence . . . must be reversed and the case remanded with direction that appellant be resentenced ... in accordance with Bearden and Gaither, [Cit.]” Day v. State, supra at 652 (10).

5. Appellant’s remaining enumeration concerning the alleged erroneous curtailment of his counsel’s closing argument has been considered and found to be without merit.

Judgment of conviction affirmed. Sentence reversed with direction.

McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur. Deen, P. J., dissents.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. Under the Constitution of Georgia and the Sixth Amendment to the U. S. Constitution, appellant is entitled to compulsory process in a criminal prosecution. Also see OCGA § 24-10-20 and Uniform Superior Court Rule 39.7. “We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” United States v. Nixon, 418 U. S. 683, 709 (94 SC 3090, 41 LE2d 1039) (1974).

“In other words, it is settled that a defendant in a criminal case who relies upon the benefit of a witness’s opinion upon an issue of fact involved in his case will not be heard to withhold from the jury the facts upon which the opinion is founded.” Wyatt v. State, 206 Ga. 613, 616-617 (57 SE2d 914) (1950). A fortiori where a prosecutor in a criminal case relies upon the benefit of a witness’s opinion upon an issue of fact, he also will not be heard to withhold from the jury facts upon which the opinion is founded. The jury can evaluate the weight of the facts, showing the basis of the expert opinion. See Jordan v. Dept. of Transp., 178 Ga. App. 133 (342 SE2d 482) (1986). If in doubt, the evidence should be admitted. Gibbons v. Md. Cas. Co., 114 Ga. App. 788, 796 (152 SE2d 815) (1966).

In Dye v. State, 177 Ga. App. 813 (341 SE2d 469) (1986), it was correctly pointed out that appellant had an option under Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), to have an independent examination and testing of the cocaine, but this was irrelevant to the information sought by appellant. It was further pointed out in Dye that seeking discovery under OCGA § 17-7-211 would not have provided appellant the desired data; therefore, he could not secure it by use of a subpoena. Pretermitting the question of accessibility of the data by use of discovery, I believe that appellant is entitled to the graphs, factual data, and other documents which constituted the basis of the expert’s opinion, and the use of a subpoena was an appropriate vehicle to gain this information. As to cross-examination, Wigmore said that beyond doubt it is the greatest engine ever invented for the discovery of truth. Without access to the data and documents sought in this case, cross-examination of the State’s expert would be overly restricted.

Decided February 7, 1990

Rehearing denied March 5, 1990

Larsen & Larsen, William W. Larsen, Jr., Celia Larsen, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

This court should reconsider the holding in Dye v. State, supra. I would go further and overrule the latter cited case. See also Johnson v. State, 259 Ga. 403 (383 SE2d 118) (1989).


text:
    A89A1811.
    AVERY v. CHRYSLER CREDIT CORPORATION.
    (391 SE2d 410)
   McMurray, Presiding Judge.

Plaintiff Chrysler Credit Corporation brought suit against defendant Thomas J. Avery seeking damages in the amount of $919.14 (per the complaint, as amended). It alleged that defendant and Heritage Chrysler-Dodge-Plymouth, Inc., entered into a retail installment sales agreement through which defendant agreed to purchase a 1987 Dodge Omni; that Heritage Chrysler-Dodge-Plymouth, Inc., assigned the agreement to plaintiff and defendant began paying plaintiff pursuant to the agreement; that defendant subsequently defaulted and surrendered the automobile to plaintiff; and that, following the disposition of the automobile, defendant remained indebted to plaintiff in the amount sought. Defendant answered the complaint, set forth an affirmative defense of payment, and denied any liability to plaintiff. Additionally, defendant counterclaimed, alleging plaintiff defamed defendant by giving a false and malicious report to a credit bureau.

Following the entry of a pre-trial order, the case proceeded to trial. The trial court directed a verdict in favor of plaintiff and against defendant with regard to the claims asserted in the complaint and the counterclaim. Judgment was entered accordingly and defendant appealed directly. Held:

1. Defendant properly filed a direct appeal. Honester v. Tinsley, 183 Ga. App. 146, 147 (1) (358 SE2d 295).

2. Via three enumerations of error, defendant asserts that the trial court erred in failing to permit him to raise failure of consideration and breach of warranty issues in the midst of trial. In this regard, defendant argues that (1) the issues already had been tried by implied consent of the parties or (2) a motion to amend the pleadings should have been granted. See OCGA § 9-11-15 (b). We disagree.

In the case sub judice, it is clear that plaintiff did not consent to the trial of failure of consideration and breach of warranty issues. In fact, plaintiff strongly objected to the introduction of such issues at trial. See in this connection Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852). The mere fact that plaintiff introduced evidence which could be said to pertain to failure of consideration and breach of warranty issues does not demonstrate that plaintiff impliedly consented to the trial of such issues because the evidence was relevant to the main claim and the counterclaim. As it is said: “[Wjhere the evidence offered . . . was relevant to an issue before the court, implied consent to an amendment of the pleadings will not be implied absent a clear indication the party introducing the evidence was attempting to raise a new issue. [Cits.].” Southern Discount Co. v. Kirkland, 181 Ga. App. 263, 266 (3), 267 (351 SE2d 685). No such indication can be found in this case. Thus, it cannot be said the issues of failure of consideration and breach of warranty had already been tried by implied consent of the parties when defendant attempted to introduce these issues at trial. See Smith v. Smith, 235 Ga. 109, 112, 113 (218 SE2d 843).

“The last two sentences of Rule 15 (b) [OCGA § 9-11-15 (b)] prescribe'the procedure to be followed if there is an objection to the introduction of evidence on the ground that the material offered is not within the issues framed by the pleadings. This portion of the rule admonishes the court that amendments should be allowed freely whenever the presentation of the case’s merits will be subserved thereby.” Wright & Miller, Fed. Practice & Procedure: Civil § 1495. Relying on the last two sentences of OCGA § 9-11-15 (b), defendant contends the trial court should have granted a written motion to amend the pleadings filed on the second day of trial even though plaintiff objected to the introduction of the failure of consideration and breach of warranty issues.

The written motion was denominated as a “motion to amend pleadings to conform with evidence.” Therein, defendant moved the court to amend the pleadings to conform to evidence already introduced without objection. When the motion was brought to the attention of the trial court, defendant argued that the pleadings should be amended to set forth failure of consideration and breach of warranty issues. In this regard, defendant again insisted that the issues were tried with implied consent. He did not argue that the pleadings should be amended in the interest of justice even though plaintiff objected to the failure of consideration and breach of warranty evidence. In fact, no mention of the last two sentences of OCGA § 9-11-15 (b) was made by defendant and the trial court was not asked to make a ruling in conformance with the admonition set forth in the last two sentences of that Code Section. Accordingly, defendant will not now be heard to argue that the trial court should have granted the written motion to amend the pleadings in spite of plaintiff’s objection to the failure of consideration and breach of warranty evidence. This court will not consider issues raised for the first time on appeal. DeBoard v. Schulhofer, 156 Ga. App. 158, 160 (2) (273 SE2d 907).

3. One of the issues to be decided was whether plaintiff repossessed the automobile. (Insofar as the counterclaim was concerned, defendant asserted he was defamed because plaintiff wrongfully notified a credit bureau that defendant’s automobile had been “repossessed.”) The trial court directed a verdict in favor of plaintiff on this issue, ruling that the automobile had been repossessed as a matter of law. Defendant enumerates error upon this ruling.

The evidence showed that the automobile caught fire and was destroyed completely. Thereafter, defendant failed to make further payments to plaintiff.

After it was destroyed, the automobile remained in a body shop until it was hauled away for salvage. At no point did plaintiff take physical custody of the wreckage. Plaintiff did, however, give notice of its intent to repossess and, more importantly, it advised the body shop that the automobile belonged to it. (Although the owner of the body shop did not recall receiving such advice, he did not deny that such advice was given.) Thereafter, plaintiff sent a “notice after repossession” to advise defendant of his right to redeem. Ultimately, plaintiff provided defendant’s insurer with title to the automobile (defendant was shown to be the owner and plaintiff was shown to be the lienholder) and a copy of the “notice after repossession.” Having received those documents, the insurer issued a check made payable to plaintiff alone.

Defendant contends it cannot be said plaintiff repossessed the automobile because it never obtained physical control of the automobile. We disagree. In our view, it was unnecessary for plaintiff to exercise actual physical control of the automobile in order to repossess it. Rather, plaintiff could, and did, repossess the automobile by taking constructive possession of it. See generally OCGA § 11-9-503 (“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. . . . Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises. . . .”) Accordingly, the trial court properly ruled that plaintiff repossessed the automobile as a matter of law.

4. The remaining enumerations of error pertain to various evidentiary rulings by the trial court. After careful consideration, we find these enumerations of error to be without merit.

Decided January 12, 1990

Rehearing denied March 5, 1990

Kirbo & Conger, Ben Kirbo, for appellant.

Perry, Walters & Lippitt, Donald W. Lee, Greene, Buckley, DeRoux & Jones, Gregory J. Digel, Margaret L. Milroy, for appellee.

Judgment affirmed.

Corley, C. J., and Beasley, J., concur.


text:
    A90A0281.
    HELMUTH v. LIFE INSURANCE COMPANY OF GEORGIA.
    (391 SE2d 412)
   Sognier, Judge.

In 1986, Mary B. Helmuth brought suit against the Life Insurance Company of Georgia, seeking the proceeds of a policy of insurance on the life of her daughter, Kathryn Helmuth Cogan, in which Helmuth was named as beneficiary. That case was tried before a jury, which awarded Helmuth $50,000. The insurer appealed, and in Life Ins. Co. v. Helmuth, 182 Ga. App. 750 (357 SE2d 107) (1987), this court reversed the judgment entered on the jury’s verdict and directed that judgment be entered by the trial court on the insurer’s motion for a directed verdict. Rehearing and certiorari were denied, and upon remittitur judgment was entered on the merits in favor of the insurer. In October 1988, Helmuth filed a second action against the insurer, also naming as a defendant Jesse D. Rogers, the agent who took the original application for insurance, individually and as agent for the carrier. That complaint alleged fraud on the part of Rogers, imputable to the insurance company. Rogers and the insurer answered and filed motions for summary judgment. The trial court granted the insurer’s motion for summary judgment, and Helmuth appeals that ruling.

Appellant raises two enumerations of error, but the sole issue may be stated succinctly as whether the entry of judgment in the prior case bars this suit. We agree with appellee that it does.

Georgia law provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40. Appellant’s reliance on Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3 (375 SE2d 848) (1989) is misplaced, because in that case both fraud and breach of contract theories were pleaded and tried, but the jury neither deliberated nor made a determination on the contract claim, reaching a verdict solely on the fraud claim. Rather than resubmitting the contract claim to the jury, as would have been proper, see id. at n. 1, the trial court accepted the verdict. The Supreme Court ordered a new trial on the breach of contract claim because “[although all of the elements of the breach of contract claim were proved at trial, that claim was not passed upon by the jury,” id. at 5 (7) (c), and thus the contract claim remained pending. In contrast, in the case at bar appellant admits that in the prior action only a contract claim was asserted. The fraud claim was never pleaded and thus not tried. We reject as spurious appellant’s argument that the fraud claim could not have been submitted in the first action because she did not know the contract was invalid. Despite appellant’s protestations to the contrary, it is clear that had she so desired, she could have included a tort claim for fraud in the first case, as the record shows that all the facts relating to the fraud claim were known to her at that time. She chose instead to rely on the contract, and she is bound by that choice. “It is clear from an examination of the evidence that the [first suit] and the [second suit] both grew out of the same subject matter .... Hence, any claim [of fraud on the part of Rogers, imputed to appellee] could have been asserted in the first action. There was identity of subject-matter and parties. Therefore, res judicata applies as between [these parties].” Winters v. Pund, 179 Ga. App. 349, 353 (346 SE2d 124) (1986).

Decided January 30, 1990

Rehearing denied March 5, 1990

William J. Neville, Jr., for appellant.

Doremus & Jones, Bobby T. Jones, for appellee.

Judgment affirmed.

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