text:
    75075.
    DONALD H. GORDON COMPANY v. CARSWELL.
    (362 SE2d 483)
   Birdsong, Chief Judge.

Appellant Donald H. Gordon Company brings this appeal from judgment entered on a jury verdict for appellee Miriam Carswell. Wine-Art of America, a California corporation, issued a franchise to sell wine and beer making supplies in Georgia, Florida and Alabama, to Donald H. Gordon of Atlanta. Gordon incorporated the Donald H. Gordon Company (Gordon Company). He was the sole stockholder and the president and opened a retail outlet in Atlanta under the name of Wine-Art Atlanta. He conducted mail-order sales throughout his assigned territory. Elyea Carswell met Gordon through purchases he made at Wine-Art. Gordon asked Carswell if he would be interested in investing in a similar franchise in the Carolinas. Carswell invested $7,500 in a Wine-Art franchise for North and South Carolina, called Carolina Winemakers (Carolina), in the name of his wife, Miriam Carswell. Mrs. Carswell lent Carolina $5,000 on a promissory note, secured by all equipment and inventory of Carolina. The note was signed by Philip Arnold, President of Carolina, for that corporation. Gordon invested in Carolina and was the vice president. Gordon’s father also invested in the Carolina franchise and lent it $2,000, also by promissory note. The Carolina franchise did not fare well and at a stockholders’ meeting in December 1973, all the officers and stockholders voted to cease operations and liquidate the inventory. Arnold was placed in charge of liquidating the inventory. Carolina owed Wine-Art of Atlanta around $600-700, and owed its suppliers from various locations, and promissory notes given to Wine-Art of California, to Gordon’s father, and Mrs. Carswell.

Gordon testified that after the meeting was over he told the stockholders that most likely the Gordon Company would be doing some mail-order business in the Carolinas, “and if this mail-order business does pick up and continue, that the Donald H. Gordon Company would set aside the profits from the mail-order operation . . . and put it up into a [separate] account in the Donald H. Gordon Company . . . and then periodically I would divide this up based on the total financial amount put in by the stockholders, the shareholders and the note holders and disperse it out from this special account. . . .” Gordon said he specifically advised the stockholders: “I am not accepting this as a legal or moral obligation and that I’m going to work this out and try to cut our losses. . . .” He “would do the best [he] could.”

The Carolina officers contacted the two malls in which they had retail outlets to terminate their leases. Gordon said “[t]hey agreed to cancel the lease or let us out of the lease if at the point of going out of business they took everything that was left in the store; chairs, decor, any inventory.” The malls agreed to take Carolina’s inventory and terminate the leases. A final report was submitted by Philip Arnold on the duties assigned him by the Carolina stockholders in which he stated he had disposed of the Carolina inventory by transfer to the mall, and he enclosed a letter from the mall they “had [him] sign turning over the inventory to them.” This same document showed he disposed of the “truck and cash register,” enclosed a receipt for a load of goods “with the money going toward our debt to the [m]all,” the taxes paid for sales tax, Federal and State withholding and unemployment taxes, W-2 to employees, cancelled checks, checking accounts, refunds from cancellation of insurance policies, etc. In short, the Carolina president made a final business report of disposition of all assets, including the inventory, and payment of liabilities, in accordance with his authorization from the Carolina stockholders. Carolina ceased operations in January 1974. After Carolina had been liquidated, Arnold drove to the Atlanta Wine-Art store and brought “two or three boxes of merchandise. . . . There was several bags of elderberries, a few dented cans of malt. It was basically miscellaneous junk that he had brought down. They had some questionable value ... at the most ... a hundred dollars,” but Carolina owed Wine-Art between $600 and $700. Gordon stated that those few boxes of merchandise were the only assets Wine-Art received. Sandra Essom, Secretary-Treasurer of Carolina Winemakers, was the manager of the Carolina retail store and “to [her] knowledge there weren’t any assets” of Carolina left over.

Miriam Carswell said that Sandra Essom had told her, at some unknown date, that the Carolina inventory had been transferred to the Gordon Company and “Don Gordon admitted it.” Essom could not remember telling Mrs. Carswell that the inventory had been transferred. Neither party asked Gordon if he had told Mrs. Carswell he had the inventory of Carolina sent to his store in Atlanta. Mr. Carswell also testified that Sandra Essom told him the Carolina inventory had been transferred to the Atlanta Wine-Art store.

During the period from 1974 to 1980, Mrs. Carswell received checks from Wine-Art Atlanta signed by Don Gordon, in an amount totalling approximately $5,050. Gordon testified that he made such payments to all stockholders and specially to the note holders from profits on mail-order sales to the Carolinas. The suppliers to Carolina Winemakers had been paid from the general operating funds of the Gordon Company. In 1980 Gordon and his wife separated, and he transferred all his shares and complete control over Gordon Company to her and left Atlanta.

Mr. Carswell testified that the checks received by his wife from 1974 to 1980 never indicated whether they were dividends from the Carolina operation or payments made on the promissory note. He was “trying to find out what was going on, how come, you know . . . these checks had come in from 1974 until 1980 in various odd amounts, to see what was going on. ... I found out [Gordon] had left Atlanta.” Carswell wrote Gordon and set up a meeting, attended by Mr. and Mrs. Carswell, Mr. and Mrs. Gordon and Sandra Essom. Carswell testified that at the meeting in May 1980, he found out Mrs. Gordon was the sole owner of Gordon Company and she “became quite hysterical. . . . She knew she owed me the money; that the inventory was there. She said she intended to pay it but she [would] have to put a second mortgage on her house. They were getting a divorce.” Carswell said he told her if they could “get an agreement. . . you can pay me along ... I had an agreement drawn which they refused to sign. . . . Ever since they made the agreement they haven’t paid me one dime. ...” Mrs. Gordon denied that she had told Mr. Carswell that the Carolina inventory had been transferred to the Atlanta Wine-Art store.

Mrs. Carswell filed this action on the promissory note, asking for payment of principal, interest and attorney fees, alleging that Carolina’s assets were turned over to the Gordon Company and that she had received payments from defendant in the amount of $1,525 on the note since 1974. Gordon’s answer alleged that the agreement between the parties was a parol agreement to answer for the debt of another and was neither in writing nor signed by Gordon or any person authorized to do so. Gordon’s motions for summary judgment and directed verdict were denied. The jury returned a verdict for Carswell for the amount of the note, plus interest and attorney fees, minus the payments made by Gordon on the note in the amount of $1,525. The trial court made the jury verdict its judgment and the Gordon Company brings this appeal. Held:

1. Appellant Gordon Company enumerates as error denial of its motion for directed verdict. “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). However, mere conflicts in the evidence will not render direction of a verdict erroneous when it appears the conflicts are not material. Blalock v. Central Bank of Ga., 170 Ga. App. 140 (2) (316 SE2d 474).

The statute of frauds, OCGA § 13-5-30 (a) makes an obligation to answer for the debt of another binding on a promisor only when it is in writing and signed by the party to be charged, or by some person authorized by him. For such promise to pay the existing debt of another to come within the proscription of the statute, it must be one which is collateral or secondary, and is merely superadded to the existing promise. Scott Hudgens Realty v. Executive Action, 125 Ga. App. 81, 82 (186 SE2d 504). However, a promise to pay the debt of another which is an original undertaking by which the promisor becomes liable is not within the statute. Id. Stated differently, those promises required by the statute to be in writing do not include an original undertaking in which the new promisor, for valuable consideration, substitutes himself as the party who is to perform and the original promisor is released. State Hwy. Dept. v. Eagle Constr. Co., 125 Ga. App. 678, 680 (188 SE2d 810). Our appellate courts have also construed OCGA § 13-5-31 as mandating removal of an oral promise from the constraints of the statute of frauds when there has been such part performance of the oral promise as would render it a fraud upon the promisee because of the promisor refusing to comply. Smith v. Cox, 247 Ga. 563, 564 (277 SE2d 512).

Hence, at issue in the instant appeal is whether (a) the oral statements by the officers of Gordon Company were in fact and law to answer for the debt of Carolina and if so constituted an original or a collateral undertaking, (b) if the oral promises of those officers were within the statute of frauds, whether the part performance by Don Gordon in making periodic payments to the note holders and shareholders remove the oral promise from the constraint of the statute of frauds, and (c) whether the conflicts in the evidence are material.

Carswell’s basis for recovery is twofold: (1) this was an original undertaking because of new consideration, i.e., the transfer of the Carolina inventory to the Gordon Company and that Mrs. Carswell had not foreclosed the promissory note, which was secured by the assets of Carolina, and such forbearance was additional consideration, and (2) even if it was a collateral undertaking, partial performance by Gordon in making periodic payments removed the promise from the Statute of Frauds.

At the outset, we should note that there was no agreement reached at the December 1973 meeting of the officers and shareholders of Carolina as to payment of the Carswell note. The minutes of that meeting show that it was decided to cease operations and liquidate the inventory. The oral statement of Gordon following the meeting was to the effect that he “would do the best [he] could” to “try to cut [their] losses,” but Gordon specifically refused to “acceptf ] this as a legal or moral obligation. ...” These statements are not refuted nor is there any evidence to the contrary found in the record.

“ ‘Where a creditor, his debtor, and a third person who owes the debtor agree in parol that such third person shall be substituted for the debtor and that the latter shall be released, the case is not within the statute of frauds, so as to require the agreement to be in writing, but the debt is extinguished as to the debtor, and the third person becomes, by substitution, the debtor in his place.’ [Cits.] In order, therefore, to take such a transaction without the operation of the statute of frauds, it must appear that the person substituted for the debtor was, by agreement between the creditor, the debtor, and himself, substituted for the original debtor, who was released from the promise. In other words, it must be shown that the person substituted as the debtor in the place of the person released, became such as the result of an agreement in which all three concurred.” Palmetto Mfg. Co. v. Parker & Anderson, 123 Ga. 798, 800 (51 SE 714). In the case at bar there was no agreement, there was no release of the original debtor, Carolina, by Mrs. Carswell. There was no agreement to substitute the Gordon Company for Carolina nor to look solely to Gordon Company for complete payment of the notes. Accordingly, the oral statement of Gordon at the December 1973 meeting of Carolina stockholders came within the statute of frauds as it related to the payment of the debt of another and was required to be in writing to be enforceable.

Was there a forbearance by Mrs. Carswell to foreclose the note against Carolina? There is no evidence relating to forbearance of Mrs. Carswell to foreclose the note against Carolina which arose from the December 1973 meeting. In fact just the opposite was voted by the stockholders. They voted to dissolve the corporation and liquidate the inventory and placed execution of such plan in the hands of its president, Philip Arnold. No action was taken to pay any of the note holders of the corporation. Any claim of forbearance to foreclose on the Carswell note was not involved in any agreement or promise by Gordon to make payments to the shareholders and note holders of Carolina. The corporation was then non-existent and the collateral had been liquidated. Hence, this claim of forbearance to foreclose the Carswell note is not consideration for the undertaking of Gordon in his oral statement to make payments to the shareholders and note holders of Carolina at the December 1973 meeting.

Was the claimed transfer of inventory from Carolina to the Gordon Company consideration for Gordon’s undertaking to make it an original undertaking as opposed to a collateral promise? There was no agreement on the transfer of any inventory from Carolina to Gordon Company arising from the December 1973 meeting. It was agreed that all inventory would be sold at reduced prices and the remainder transferred to the malls in which Carolina had two outlet stores. The malls agreed to accept the furnishings and inventory as consideration of cancellation of the leases. And, according to the business records furnished as an accounting by Carolina’s president to its vice-president, Gordon, such liquidation was accomplished in accordance with the minutes of the last meeting of the Carolina stockholders. Gordon also testified to Carolina’s debt to Gordon Company ($600-700), and that without his knowledge, Arnold came to the Wine-Art store in Atlanta after Carolina had been closed out and gave him the remaining three boxes of inventory, the only inventory received, which had an approximate value of $100. There is no evidence of record that any transfer of inventory had any relationship to Gordon’s statement made to the Carolina stockholders at the 1973 meeting.

As hereinbefore indicated the promise to answer for the debt of another required by the statute of frauds to be in writing to be enforceable relates to the collateral promise of the second promisor to become bound along with the original promisor. It does not include an original undertaking whereby a new promisor, for a valuable consideration between him and the promisee, substitutes himself as the party who is to perform, thus causing the original promisor to be released from the contract. Evans v. Griffin, 1 Ga. App. 327, 328 (57 SE 921). When the promise to be answerable for the debt of another is based upon a new consideration which moves to and benefits the promisor, the obligation is his own debt and the original promisor is relieved of his obligation. Thomason v. Pease Co., 47 Ga. App. 776 (171 SE 467). Whether a promise to assume the debt of another is an original undertaking or a collateral one, “the question is one of intent and whether the parties meant for the promisor to stand in the place of the third party.” Lewis v. Dan Vaden Chevrolet, 142 Ga. App. 725, 729 (236 SE2d 866). In this appeal there is no evidence that Carolina’s inventory had anything to do with Gordon’s statement at the 1973 meeting, nor is there any evidence of any consideration for the statement “to cut losses,” nor is there any evidence of the intent of Carolina and Carswell to substitute Gordon Company for Carolina or to release Carolina from its obligation on the Carswell note. Hence, any conflict in the evidence as to the possible subsequent transfer of Carolina’s inventory is not material to the issue of new consideration for Gordon’s prior statement made at the 1973 stockholders’ meeting.

In summary, the oral statement of Gordon at the 1973 meeting of Carolina’s stockholders was not to answer for the debt of Carolina, but even if construed to be a promise to answer for the debt of Carolina, the statute of frauds required it to be in writing to be enforceable. Secondly, any claim of subsequent movement of inventory cannot be considered as consideration for the former statement made by Gordon at the 1973 meeting. The subsequent but inconsequential movement of Carolina’s inventory to Gordon Company may be the basis for an action based on conversion, but it cannot relate back to events that occurred before its transfer, to act as consideration for an alleged promise. There is no evidence of record that there was any forbearance by Mrs. Carswell to enforce her promissory note as consideration for Gordon’s statement at the 1973 meeting. To the contrary, Mr. Carswell voting for Mrs. Carswell, and the shareholders, voted to liquidate the corporation and made no arrangements to pay the note holders.

This leaves as an unresolved issue the claim of partial payment by Gordon Company to Carolina stockholders and note holders from 1974 to 1980 as to whether they are sufficient to take Gordon’s statement out of the statute of frauds.

Partial but voluntary payment alone is insufficient to take a case out of the statute of frauds. Smith v. Cox, 247 Ga. 563, 564 (277 SE2d 512). As the Gordon Company was not legally bound to pay any portion of the Carswell note, the voluntary contribution to Carolina’s debtors furnished no legal basis for enforcing payment of the note or its residue. McGaughey Bros. v. Latham, 63 Ga. 67, 71 (1). No fraud was committed by the partial payments since the Gordon Company was not legally bound to pay the Carswell note by the oral statements made by Gordon at the 1973 meeting and “ ‘[i]t would surely be bad logic to say, that whoever, in pursuance of a void promise, voluntarily pays part of a debt, is thenceforth under a binding contract to pay the balance.’ ” Trans-State v. Barber, 170 Ga. App. 372, 375 (317 SE2d 242).

2. Remaining for discussion is the May 1980 meeting between Mr. and Mrs. Gordon and Mr. and Mrs. Carswell. At that meeting, it was established that Mrs. Gordon was the sole owner of Gordon Company and her husband had left Atlanta and was no longer a part of the company. The Carswells said Mrs. Gordon admitted the transfer of the inventory from Carolina to Gordon Company and that she owed them “the money.” This was denied by Mrs. Gordon. Mr. Cars-well testified that an agreement was prepared for the signature of the Gordons but was never signed. The alleged oral statement of Mrs. Gordon was also one to answer for the debt of another, Carolina’s debt on the Carswell note, and was also subject to the statute of frauds’ requirement that it be in writing and signed. Further, there were no partial payments made after that meeting. As Mr. Carswell admitted, “they haven’t paid me one dime. . . .”

Any claim of consideration based on the alleged transfer of inventory following the 1973 meeting could not act as consideration for the oral promise of Mrs. Gordon in 1980 when, the execution of the note by Carolina preceded the subsequent promise of Mr. Gordon, and the alleged transfer of inventory followed the Gordon statement, and the subsequent transfer of the Gordon Company to Mrs. Gordon preceded her subsequent promise to the Carswells in May 1980. The debt on the Carswell note was that of Carolina, and as held above, did not become the debt of the Gordon Company prior to the 1980 meeting. “[A] promise to pay the pre-existing debt of another, without any detriment or inconvenience to the creditor [Carswell], or any benefit ... to the debtor [Carolina] in consequence of the undertaking . . . is mere nudum pactum.” Davis v. Tift, 70 Ga. 52, 56. No benefit accrued to Carolina by this alleged promise. No benefit accrued to the promisor not already in existence prior to the alleged promise. There was no detriment or inconvenience to the Carswells by the making of the alleged promise of Mrs. Gordon in May 1980. Their legal position following the alleged promise was not adversely affected. Any claim of forbearance to foreclose the note is unavailing. The note was against Carolina and its assets. That corporation and its assets were extinguished in 1974, and neither was in existence in 1980. Even if the amount of the alleged transfer of inventory extinguished the $600-700 debt owed by Carolina to the Gordon Company, with an excess amount left over, Carswell would only be entitled to an accounting (see Gandy v. Robinson Co., 216 Ga. 190 (115 SE2d 341)), and an action for an accounting must be brought within four years (1978). OCGA § 9-3-25. “Nor can the [Carswells] rely on the naked promise of [Mrs. Gordon] to do an act as a ‘consideration’ where there is no contract between the promisee and the promisor.” Insilco Corp. v. First Nat. Bank, 156 Ga. App. 382, 383 (274 SE2d 767), rev’d on other grounds 248 Ga. 322 (283 SE2d 262); Trust Co. of Columbus v. Rhodes, 144 Ga. App. 816, 818 (242 SE2d 738).

Decided November 2, 1987.

Mathew Robins, H. Martin Huddleston, for appellant.

Douglas A. Hill, for appellee.

At best, the meeting between the Gordons and the Carswells resulted in an oral promise by Mrs. Gordon to sign a subsequent agreement, which the Gordons ultimately refused to sign. A parol agreement to contract is not an enforceable contract. John Bleakley Ford v. Estes, 164 Ga. App. 547, 548 (298 SE2d 270); Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 881 (278 SE2d 750).

3. There being no enforceable agreement between the parties to answer for the debt of another, i.e., the debt of Carolina on the Cars-well note, the trial court erred in denying appellant’s motion for directed verdict.

Judgment reversed.

Pope, J., concurs. Deen, P. J., concurs in judgment only.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74903.
    JONES v. JONES.
    (362 SE2d 403)
   Birdsong, Chief Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying summary judgment to the defendant widow Elizabeth Jones in a wrongful death suit on the basis of the inapplicability of liability based upon spousal immunity.

Calvin M. Jones died as the result of an automobile accident which occurred while he was a passenger in the car driven by his wife, Elizabeth. His daughter, Linda Jones, filed a wrongful death suit individually and as executrix of his estate, against his widow Elizabeth. Held:

1. The trial court erred in denying the defendant wife summary judgment on the basis that issues of fact remain as to her entitlement to spousal immunity from suit by her husband’s daughter. „

(a) It was urged below by the plaintiff, and on appeal, that under Harris v. Harris, 252 Ga. 387 (313 SE2d 88) and Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461), the spousal immunity doctrine is inapplicable to the facts of this case because there is no hint of collusion between husband and wife to mortally injure the husband, and moreover, since the husband is dead, there is no marital harmony to preserve, both of which objects form the basis of the spousal immunity doctrine. Harris v. Harris involved an intentional tort and the obvious estrangement of spouses; Smith v. Rowell involved a fatal shooting which raised questions as to the absence of collusion and the absence of any marital harmony left to protect. See also Warren v. State, 255 Ga. 151 (336 SE2d 221), involving marital rape.

Whether those cases indicate a crumbling of judicial satisfaction with the spousal immunity doctrine, the facts of this case are starkly dissimilar, and are controlled by our decision in Yates v. Lowe, 179 Ga. App. 888 (348 SE2d 113). Like Yates, this is a negligence case. The policy considerations behind the spousal immunity doctrine — prevention of collusion and preservation of marital harmony — still obtain and will do so until the Act is repealed or is declared unconstitutional, about which possibilities we express no opinion. There is no evidence in this case to suggest “a lengthy separation or act of violence which clearly evidences the termination of marital harmony to a degree sufficient to deter any reasonable apprehension of collusion between the spouses and their estates,” as indicated in Smith. Thus there is no evidence upon which to conclude the defendant wife is not entitled to the spousal immunity given her by the law.

Furthermore, there is not, as plaintiff daughter urges, a burden upon a defendant spouse to prove absence of collusion and the existence of marital harmony sufficient to invoke the immunity, either as a defendant in suit, as movant in summary judgment, or as spouse. Harris and Smith did not hold there is such a burden on the spouse. In those cases, and see Warren v. State, supra, the facts spurning immunity appeared largely by the nature of the case. The immunity is granted by statute and exists unless it is proved or shown otherwise.

The fact that the victim spouse is dead begs the question and destroys the principle entirely; it is also immaterial. See Yates v. Lowe, supra; Harrell v. Gardner, 115 Ga. App. 171, 173 (2) (154 SE2d 265).

(b) We hold further, as we are required by precedent to hold, that the plaintiff-daughter’s individual suit is derivative of her deceased father’s rights. That is, if he would be barred from suit against his wife, so is his daughter barred. Jones v. Swett, 244 Ga. 715 (261 SE2d 610); following Horton v. Brown, 117 Ga. App. 47 (159 SE2d 489); c.f. Walden v. Coleman, 217 Ga. 599, 602-605 (124 SE2d 265), which held that the causes of action for mother and for children for the death of a father are separate and not dependent on the other. The rule in Walden, supra, might have particular attractiveness in view of the alleged judicial disenchantment with spousal immunity, insofar as the doctrine giving immunity to a wife for suit by her husband might lose some logic when it is applied to bar suit by the more removed and uncollusive child of the husband. However, in any case, we are bound by the ruling in Jones v. Swett, supra, and hold the plaintiff-daughter’s suit is derivative of her father’s, and since he would be barred, so is she.

The plaintiff appellee suggests that Tolbert v. Murrell, 253 Ga. 566 (322 SE2d 487) would permit her recovery for the wrongful death of her father, independent of any action taken by the widow appellant.

Tolbert held unconstitutional former OCGA § 51-4-2 insofar as it allowed a child of a deceased father to sue only if there was no widow, whereas former § 51-4-3 allowed the child of a deceased mother a cause of action independent of whether the father also sued for her wrongful death. Tolbert held: “Henceforth, children of deceased fathers who leave widows shall be afforded the rights afforded children [of deceased mothers] under [former] OCGA § 51-4-3.” Id. p. 571. This, of course, was the law until the legislature in 1985 (Ga. L. 1985, p. 1253, § 1), limited the rights of children of deceased mothers and mothers as had previously been allowed only to children of deceased fathers in old OCGA § 51-4-2. Calvin M. Jones died during this period between Tolbert and the 1985 legislative amendment. Therefore, the plaintiff contends Tolbert allowed her, the child of a deceased father, the same right to an independent suit for his death as was formerly enjoyed only by children of deceased mothers under former § 51-4-3.

However, plaintiff overlooks the fact that, as the law stood before Tolbert, children of deceased mothers did not possess a right of action under former OCGA § 51-4-3 if their mother would have been barred from suit against their spouses by spousal immunity, this right being only derivative of their mother’s right; so held Jones v. Swett, supra, which was a case involving children of a deceased mother.

(c) Finally, it is clear as well that the plaintiff daughter does not have a cause of action as executrix under OCGA § 51-4-5, since she would have such right only as derivative of her deceased parent’s right for his own estate; and he had none, being barred by his wife’s immunity. Smith v. Rowell, supra, pp. 100-101.

We therefore conclude on all counts that the trial court erred in denying summary judgment to defendant wife on the issue of spousal immunity.

2. The plaintiff in her brief below on motion for summary judgment raised as an issue the constitutionality of the spousal immunity statute, on grounds of denial of equal protection for married persons versus single persons. See Moran v. Beyer, 734 F2d 1245 (7th Cir. 1984). However, the trial court made no ruling on this issue, but denied summary judgment to the defendant wife on grounds of the existence of issues of fact. Since no constitutional issue was raised in the pleadings, nor ruled on by the trial court, the issue is not ripe for appellate consideration. Walker v. Hall, 226 Ga. 68 (172 SE2d 411).

Decided October 14, 1987

Rehearing denied November 3, 1987

Robert R. Gunn II, Karl D. Warden, for appellant.

L. Z. Dozier, Neal B. Graham, for appellee.

The decision below is reversed as to the determination that issues of fact exist which might deny the wife spousal immunity, and the case is remanded for consideration of any constitutional questions properly raised.

Judgment reversed and case remanded.

Deen, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    74980.
    HILLMAN v. THE STATE.
    (362 SE2d 417)
   Benham, Judge.

Appellant was convicted of terroristic threats. In this second appearance of his case (see 182 Ga. App. 47 (354 SE2d 673) (1987)), appellant again challenges the trial court’s finding that the prosecutor had provided a sufficiently neutral explanation for using nine of his peremptory strikes to eliminate nine black veniremen from the jury. We find no error in the trial court’s ruling.

1. Under Batson v. Kentucky, 476 U. S. _ (106 SC 1712, 90 LE2d 69) (1986), “[i]f the defendant can establish a prima facie case of racial discrimination in the prosecutor’s exercise of his peremptory challenges, the prosecutor must explain his exercise of peremptory challenges, and demonstrate that racially neutral criteria prompted the exercise of his peremptory challenges.” Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987). When questioned in this regard at the Batson hearing held immediately after voir dire was completed, the prosecutor explained that he eliminated most of the veniremen because they appeared to be relatively young, and he was trying to get an older jury. His theory was that a more mature jury would be less prone to consume drugs or alcohol, or to act irresponsibly when they did consume such substances. Appellant was a 43-year-old black man who allegedly had been drinking when he committed the acts for which he was arrested. The prosecutor said that he struck juror No. 15, Plummer (age 30), because of his age and because he knew the district attorney; that he struck No. 25, Davis (age 25), because of her age and her unemployment; and that he struck No. 26, Bell (age 31); No. 33, Phillips (age 28); No. 34, Savage (age 28); and No. 36, White (age 26), all because of their youth. Phillips was also struck because of her employment at Legal Services. No. 37, Randall (age 41), was struck because the prosecutor knew of him and thought he “was a hard drinker.” No. 39, Brunson (age 32), was struck because her family had close ties with appellant’s family. The last venireman, No. 42, Clemons (age 29), was struck because of his youth and the prosecutor’s dislike of the way his facial and cranial hair looked. The prosecutor’s impressions about the ages of the persons he eliminated are borne out by the statistical information attached to the trial court’s order after remand. The trial court found that the average age of the jurors struck by the State was 30, with a range of 25 to 41; and the average age of the jurors that were empaneled was 47, with a range of 27 to 74. The jury was composed of four black females, two black males, two white females, and four white males.

Appellant complains that the prosecutor’s reasoning was insufficient to rebut the prima facie case of discrimination because he did not strike the 27-year-old white male who sat on the jury. However, the record indicates that the prosecutor’s reason not to strike that person was because he was a minister and was adverse to alcohol. Since the voir dire was not taken down and there is no other indication of the extent to which the other veniremen were questioned about their opinions on alcohol and/or drugs, we cannot say that the “persuasiveness of [the] proffered explanation [is] magnified or diminished by the persuasiveness of companion explanations. . . .” Gamble, supra at 327. We find the prosecutor’s reasons to be adequate in light of the Batson standard and affirm the trial court’s findings. Compare Gamble, Division 6.

2. Appellant’s remaining enumerations of error regarding his motions in limine, for directed verdict, for mistrial, and for a new trial were raised in his first appeal but, contrary to the State’s assertion, were not resolved against him at that time. Since this court’s earlier opinion only addressed the Batson issue, we will now examine those still remaining.

Appellant contends that the trial court erred in finding that the State complied with OCGA § 17-7-210 and therefore permitted testimony by the arresting officer-victim about statements appellant made while he was in police custody. The record indicates that at the committal hearing held approximately two months after appellant was arrested, the officer testified that appellant threatened to “blow my brains out . . . and made several other threats.” At trial, the officer testified that in addition to the other threats he made, appellant used specific words ascribing to the officer certain relations he allegedly had with his mother and describing the officer as being a certain orifice of his anatomy. Appellant moved in limine to keep the statements out, and his motion was denied. During the testimony, he moved for a mistrial, which the trial court also denied. The testimony was allowed, and appellant claims reversible error. Since the oral statement had been provided in writing by means of the officer’s written report and the committal hearing transcript, and since the written rendition was not significantly different in substance from the oral statements, we find no error in the denial of the motions in limine and for new trial. Rhodes v. State, 170 Ga. App. 473 (2) (317 SE2d 285) (1984); Tyson v. State, 165 Ga. App. 22 (1) (299 SE2d 69) (1983).

3. In the course of the prosecuting attorney’s direct examination of one of the victims, he asked how the victim knew appellant was talking to him and not someone else. The witness replied, “Well, he knew me; he’d been in jail several times before.” Appellant made no objection but asked to approach the bench, where a sidebar conference was held. The record later indicates that during that conference, appellant moved for and was denied a mistrial. Another witness later testified that appellant “had been [under the influence of alcohol] on the other occasion he’d been brought into the jail . . . ,” at which point the prosecuting attorney stopped the witness and asked another question. Appellant made no objection or motion at that time.

At the close of the evidence, appellant moved for a mistrial on the ground that the State had impermissibly placed his character in issue through the above-stated testimony. The trial court denied the motion, finding that the statements were inadvertent, unintentional, and did not rise to “the level of prejudice that would demand a mistrial.” We agree. “The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]” Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982). We find no abuse of discretion in the trial court’s denial of the motion. Williams v. State, 242 Ga. 757 (2) (251 SE2d 254) (1978); Cochran v. State, 177 Ga. App. 471 (3) (339 SE2d 749) (1986).

4. Appellant moved for a new trial, contending that although one of the jurors knew Deputy Sheriff Ken Smith, one of the victims who testified at trial, he denied that knowledge on voir dire. The motion was denied, since the juror’s “knowledge of Mr. Smith was based upon having seen Mr. Smith in [the juror’s] father’s store prior to the trial . . . [and] that he did not know Mr. Smith personally, that he had never socialized with him, and that he knew of him, like he knows of the Mayor . . . the only conversation that he ever had with Mr. Smith was of a business nature.” There was no error committed in the denial of the motion for new trial, since there was nothing to show that the juror did not act as an impartial member of the jury, or that he had an ulterior or evil motive in “giving purportedly untrue answers.” Geiger v. State, 129 Ga. App. 488, 494 (199 SE2d 861) (1973).

Decided October 19, 1987

Rehearing denied November 3, 1987

T. Lee Bishop, Jr., for appellant.

Hobart M. Hind, District Attorney, L. Earl Jones, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.

5. Finally, we find no merit in appellant’s contention that his motion for directed verdict of acquittal should have been granted. Appellant was charged with two counts of committing terroristic threats. OCGA § 16-11-37 (a) states that one commits the offense “when he threatens to commit any crime of violence or to burn or damage property with the purpose of terrorizing another. . . .” The statute requires that the testimony of the party to whom the threat is communicated be corroborated.

The victims testified that after they arrested and booked appellant for disorderly conduct, he continually threatened to kill them if he saw them on the street; blow their brains out; and sneak up behind one of them and shoot him in the head. The victims testified that they took appellant seriously and became more cautious in their work in uniform. Another witness who was not a victim also corroborated the victims’ testimony. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of terroristic threats. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Shepherd v. State, 173 Ga. App. 499 (1) (326 SE2d 596) (1985); Boone v. State, 155 Ga. App. 937 (274 SE2d 49) (1980).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75064.
    GARRETT v. THE STATE.
    (362 SE2d 423)
   Benham, Judge.

This appeal is from appellant’s conviction for public drunkenness and obstruction of an officer. The State’s evidence authorized the jury to find the following: At approximately 11:00 p.m. on the date of appellant’s arrest, the arresting officers watched a car pull into the parking lot of a closed public building and stop. When the car did not move after a few minutes, the officers approached and turned on their blue light. Appellant’s fiancée, the driver, was arrested for DUI and driving without a license. Because appellant was visibly too drunk to walk safely from the scene of the arrest, the officers directed him to accompany them to the jail so that transportation home could be arranged, assuring him that there were no charges against him. Appellant told one of the officers to go to hell, and was arrested for public drunkenness. When asked to get out of the car, he resisted violently and had to be extricated forcibly. After he was handcuffed and placed in the police car, appellant began kicking the door and window.

1. In his first and eighth enumerations of error, appellant contends that a motion to dismiss the public drunkenness charge should have been granted because the officers testified that the only reason appellant was arrested was that he refused their request that he accompany them to jail. The record does not support that position. The officer testified that appellant was arrested, not for refusing to accompany the officers, but because he cursed one of them when the officer requested that appellant go with them to the jail. That conduct authorized appellant’s arrest. Moore v. State, 133 Ga. App. 28 (209 SE2d 662) (1974). Other arguments asserted by appellant on this point were not raised at trial and will not be considered. Smith v. State, 180 Ga. App. 309 (4) (349 SE2d 4) (1986).

2. Since we have held that appellant’s arrest for public drunkenness was legal, his argument in his second enumeration of error that the obstruction of an officer charge should have been dismissed since it was based on his lawful resistance to an illegal arrest is without merit.

3. In his third, fourth, and ninth enumerations of error, appellant contends that the trial court erred in denying his motions for directed verdicts of acquittal. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984). The evidence set forth above was sufficient to authorize a rational trier of fact to find appellant guilty of public drunkenness and obstruction of an officer beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Patterson v. State, 181 Ga. App. 68 (1) (351 SE2d 503) (1986) (public drunkenness); McDaniel v. State, 164 Ga. App. 105 (2) (296 SE2d 401) (1982) (obstruction of an officer).

4. Appellant’s complaint in his fifth enumeration of error concerning a jury charge was waived when appellant made other objections to the charge, but did not make the one raised on appeal and did not reserve the right to make further objections. Jones v. State, 181 Ga. App. 651 (2) (353 SE2d 593) (1987).

Decided October 20, 1987

Rehearing denied November 3, 1987

James A. Satcher, Jr., for appellant.

William A. Foster III, District Attorney, for appellee.

5. In his sixth enumeration of error, appellant complains of a jury charge on expert testimony, asserting that there were no witnesses qualified as experts. The only witnesses to whom the charge could have applied were the arresting officers, who testified that appellant’s codefendant, who was charged with DUI, was intoxicated; appellant’s own intoxication was uncontested. Under those circumstances, assuming that any error was committed, we hold without hesitation that it is highly probable that the charge did not contribute to the verdict and was, therefore, harmless. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

6. Although he made no objection to it at trial, appellant included as a ground in his motion for new trial the conduct of the prosecuting attorney in making improper argument to the jury. The seventh enumeration of error is directed to the denial of his motion for new trial on that ground. “ ‘[U]nless the court’s attention is called to such improper argument and a ruling invoked upon the trial, it is too late to raise the point for the first time in a motion for new trial.’ [Cit.]” Hudson v. State, 250 Ga. 479 (4) (299 SE2d 531) (1983). The seventh enumeration of error is without merit.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75069.
    KILLENS v. THE STATE.
    (362 SE2d 425)
   Birdsong, Chief Judge.

Appellant Randy Killens was convicted of selling cocaine in violation of the Georgia Controlled Substances Act. We affirm.

1. Appellant maintains the evidence is insufficient to establish his guilt beyond a reasonable doubt.

The evidence adduced at trial authorized the jury to find that in August of 1985 Georgia Bureau of Investigation agents were engaged in an undercover narcotics operation in Waycross, Georgia. Agents were to make as many drug buys as possible within a short period of time, but were to wait to make arrests until the operation was completed so as to not reveal their cover. On the afternoon of August 21, Agents Robin Skinner and Ronnie Baldwin went to a local nightclub to locate a disc jockey with whom Agent Baldwin had spoken earlier about purchasing cocaine. Agent Baldwin entered the club but could not find the disc jockey. Two black males who identified themselves as “Rickey” and “John” approached Agent Baldwin. “Rickey” was later identified as appellant Killens.

When the two asked Agent Baldwin why he was looking for the disc jockey, Agent Baldwin advised them he was hoping to complete a drug transaction. The two individuals indicated they could get him anything he wanted. The three then joined Agent Skinner outside and drove to nearby Oak Street where they pulled over. The two black males got out of the car, disappeared around a building, and returned some fifteen minutes later. Appellant handed Agent Skinner a quantity of cocaine and the other individual gave Agent Skinner a quantity of marijuana. Agent Skinner gave $50 to the second black male, who split it with appellant. The agents were with the two individuals for over an hour in broad daylight.

On December 4, 1985, agents involved in the operation returned to Waycross to make arrests. Driving along Oak Street, Agent Baldwin identified appellant and apprehended him. Appellant was transported to the Ware County Sheriffs Office where Agent Skinner positively identified him in a one-on-one show-up.

The evidence presented at trial taken in the light most favorable to the verdict was sufficient to allow a rational trier of fact to find appellant guilty of violating the Georgia Controlled Substances Act beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the State’s use of its peremptory strikes to exclude members of his race from the petit jury denied him his federal and state rights to equal protection of the laws. Traditionally, peremptory challenges have required no justification. Gamble v. State, 257 Ga. 325 (357 SE2d 792). However, the recent U. S. Supreme Court decision in Batson v. Kentucky, 476 U. S._(106 SC 1712, 90 LE2d 69), makes it clear that “the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.” Batson, supra, 90 LE2d at 82.

Under Batson, the initial burden is on the defendant to raise a prima facie showing of purposeful discrimination by the State. Batson outlined a three-step process by which a defendant makes such a showing. “[F]irst, [the defendant] must show that he is a member of a cognizable racial group, [cit.] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact . . . that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ Avery v. Georgia, 345 U. S. 559, 562 (73 SC 891, 97 LE2d 1244). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, supra, 90 LE2d at 87-88.

If the defendant makes the requisite showing, the burden shifts to the State to come forward with a race-neutral explanation for the monochromatic result of its use of peremptory strikes. Batson, supra, 90 LE2d at 86. The explanation “need not rise to the level justifying exercise of a challenge for cause,” but it must be a “ ‘clear and reasonably specific’ ” race-neutral explanation, related to the case to be tried. Batson, supra, 90 LE2d at 88 and n. 20.

The trial judge listened to appellant’s objections outside of the presence of the jury. Appellant demonstrated the fact that he was black and that the State used its peremptory strikes to remove two black veniremen from the petit jury. The result was an all-white jury with only a black alternate. Further, appellant complained that white jurors were not struck when situated similarly to the two blacks that were challenged.

We may assume the trial court considered this as sufficient prima facie evidence of the State’s discriminatory intent as the judge then gave the prosecutor a chance to respond. The prosecutor explained that he excused juror Everette because she knew and attended the same church as appellant’s mother. Although some of the white veniremen knew other relatives of appellant, those were business, not social, religious relationships. The prosecutor believed a social, religious relationship was likely to create prejudice in the mind of juror Everette.

The prosecutor explained that juror Ross was excused because he failed to raise his hand during voir dire when the panel was asked whether they had any family member or close friend who had been arrested. The sheriff, who was present, indicated to the prosecutor that Mr. Ross’ son had been arrested on numerous occasions. Mr. Ross also indicated that he was on Social Security disability, and the prosecutor explained he did not like to accept jurors on disability. While appellant claims a white juror who was also on disability was not challenged, that juror had not failed to raise his hand during the voir dire as to the question of disability.

Although the prosecutor may not strike from assumptions based solely upon race, he “may strike from mistake, or from ignorance, or from idiosyncracy.” Gamble, supra at p. 326. Thus, the prosecutor’s explanations were sufficient to rebut the prima facie case in that they were clear and reasonably specific, related to the particular case, and, most importantly, race-neutral.

After hearing appellant’s response to these explanations, the trial court ruled that appellant had not carried his ultimate burden of proving discriminatory intent. The findings of the trial court are “entitled to appropriate deference by a reviewing court.” Batson, supra, 90 LE2d at 89, n. 21. These findings will not be disturbed unless clearly erroneous. Gamble, supra at p. 326; Powell v. State, 182 Ga. App. 123, 124 (2) (355 SE2d 72). We find no clear error here.

3. The trial court’s refusal to suppress identification of the appellant at the one-on-one show-up, and later in court, is enumerated as error. “The evil to be avoided is the . . . misidentification of an accused. The holding of Neil v. Biggers, 409 U. S. 188, 196-201 (93 SC 375, 34 LE2d 401) is that a two-step analogy is to be used. First, an impermissibly suggestive identification procedure is to be avoided. Only if it was suggestive need the court consider the second question — whether there was a substantial likelihood of irreparable misidentification. Payne v. State, 233 Ga. 294, 299 (210 SE2d 775).” Anderson v. State, 168 Ga. App. 243, 245 (1) (308 SE2d 623).

First, it is clear that Agent Baldwin’s pretrial identification was in no way tainted because the procedure was not suggestive. Agent Baldwin simply observed and identified appellant from the streets of Waycross.

We must turn then to the show-up identification by Agent Skinner. Although one-on-one show-ups have been sharply criticized, and are inherently suggestive (Benton v. State, 178 Ga. App. 239, 241 (1) (342 SE2d 722)), the identification need not be excluded as long as “under all the circumstances the identification was reliable notwithstanding any suggestive procedure. [Cits.]” Cleveland v. State, 164 Ga. App. 478, 480 (1) (298 SE2d 22). Our inquiry, therefore, must focus upon whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil, supra, 409 U. S. at 199-200.

In the present case, Agent Skinner spent a substantial amount of time with appellant, over an hour during the middle of the afternoon. Agent Skinner was not simply a casual observer. Her attention was focused on appellant, the person from whom she was buying the cocaine, and whom she would later have to identify. Agent Skinner was unequivocal in her identification of appellant at the show-up. Although four months had elapsed between the time of the crime and the time of the show-up, this was a necessary part of the undercover operation and not sufficient to taint the identification.

Decided October 20, 1987

Rehearing denied November 3, 1987.

James A. Yancey, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Del- man L. Minchew, Assistant District Attorneys, for appellee.

In addition, both agents testified that their in-court identifications were based upon their recollection of appellant on the day of the purchase. Thus, Agent Skinner’s identification had an independent basis other than the show-up. Even were we to assume, arguendo, that the one-on-one show-up was tainted, the in-court identification was admissible since it had an independent basis other than the prior identification. Code v. State, 234 Ga. 90, 99 (214 SE2d 873); Anderson, supra, p. 245; see also Hamilton v. State, 180 Ga. App. 284 (349 SE2d 230).

4. Appellant contends that an alleged seizure of a defense witness, appellant’s brother Rickey, rendered his trial unfair. The record contains no evidence of a “seizure” as claimed by appellant. Moreover, appellant made no objection at the time of the alleged misconduct and waited until both sides had rested before he made a motion for mistrial.

“We reject this enumeration upon either of two grounds. By failing to make a timely objection, [appellant] has waived any objection that might have been made. Burt v. State, 156 Ga. App. 127, 128 (3) (274 SE2d 124). Moreover, a mistrial will not lie where evidence is admitted without objection (McCormick v. State, 152 Ga. App. 14, 15 (2) (262 SE2d 173)) and a motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely. Favors v. State, 145 Ga. App. 864, 867 (4) (244 SE2d 902).” Bennett v. State, 165 Ga. App. 600, 601 (3) (302 SE2d 367). Thus, appellant has preserved nothing for review on appeal.

5. Appellant contends the trial court erred in denying his motion to reopen the case after all the evidence was closed. It was appellant’s intention to put his second brother, John, on the stand in order to show the strong resemblance between appellant and his two brothers. The trial court ruled that appellant’s counsel should have discovered the resemblance upon a reasonable investigation and presented it during trial. It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion. Hurt v. State, 239 Ga. 665, 672 (8) (238 SE2d 542); Pope v. State, 178 Ga. App. 148, 149 (1) (342 SE2d 330). We have found no abuse of discretion.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    75100.
    DEVENDORF v. MIDKIFF.
    (362 SE2d 398)
   Banke, Presiding Judge.

The appellant moved to set aside a default judgment entered against him in a suit by the appellee to recover damages for slander. The trial court denied the motion, and we granted the appellant’s application for a discretionary appeal. The motion to set aside was predicated on lack of personal jurisdiction resulting from insufficiency of service of process.

The suit was filed in the Superior Court of Fulton County. Service was effected by delivering a copy of the complaint and summons into the hands of Scarlett Rooney, age 15, at 910 Nix Road in Alpharetta, which address was described in the return of service as being the appellant’s “most notorious place of abode” in Fulton County. In support of his motion to set aside the default judgment, the appellant submitted his own affidavit acknowledging part ownership of the Nix Road property but averring that he had purchased his interest for investment purposes and did not reside there but in Boca Raton, Florida. In his brief on appeal, the appellant has further acknowledged that he occasionally stays at the Nix Road address when passing through Georgia in connection with his ownership of a trucking business.

In his order denying the motion to set aside, the trial judge reasoned as follows: “[T]here is no evidence that [the Nix Road residence] is not the dwelling house or usual place of abode of [the appellant] when he is present in Georgia and that he did not receive constructive service from a resident of that house. Service . . . may be made on a nonresident who is sojourning in the state and the affidavit of [the appellant] does not negate [that] he was constructively served and does not deny that he had notice of the pendency of this action.” Held-.

“We note at the outset that, if there was no valid service of process, it is immaterial whether [the defendant] had actual notice of the pendency of the action. [Cits.]” Wilkerson v. Voyager Cas. Ins. Co., 171 Ga. App. 834 (321 SE2d 346) (1984). Accord Heard v. Hopper, 233 Ga. 617, 618 (212 SE2d 797) (1975).

The record before us contains no evidence tending to controvert the appellant’s sworn averment that he is not a resident of Georgia. While the deputy sheriff’s return of service contains a printed statement to the effect that the Nix Road property constitutes the appellant’s “most notorious place of abode” in Fulton County, and while the return is entitled to a presumption of correctness, the statement in question is conclusory and does not purport to have been based on the deputy’s personal knowledge. In contrast, the appellant’s sworn averment in his affidavit that he resides in Florida rather than Georgia is obviously a matter within his personal knowledge. Consequently, it constitutes the only direct evidence on the issue of whether he is a Georgia resident and overcomes the presumption created by the deputy’s return. Accord Bell v. Stevens, 100 Ga. App. 281 (1) (111 SE2d 125) (1959). Compare Moore v. Sanford, Adams, McCullough & Beard, 171 Ga. App. 549 (1) (320 SE2d 394) (1984).

It is, in any event, evident that the trial judge accepted the appellant’s representation that he was a resident of Florida at face value, for the denial of the motion to set aside was not predicated upon a factual determination that the appellant resided at the Nix Road address but on the apparent legal conclusion that a sojourner in this state is subject to substituted service here pursuant to OCGA § 9-11-4 (d) (7). However, it is well settled that, in the absence of some additional jurisdictional basis, personal jurisdiction may be exercised over a sojourner travelling in this state only if he or she is personally served with process here. See Miller v. Miller, 216 Ga. 535 (118 SE2d 85) (1961); Minsk v. Cook, 48 Ga. App. 567 (2) (173 SE 446) (1933). See generally OCGA §§ 9-10-33; 50-2-21. Indeed, the notion that a sojourner is subject to substituted service “at his dwelling house or usual place of abode” in this state is inherently contradictory, for one who maintains a dwelling house or usual place of abode in this state obviously cannot be considered a mere sojourner here.

The issue of whether service was properly effected upon the appellant is, of course, entirely separate and distinct from the issue of whether the trial court would be authorized to exercise personal jurisdiction over him in the event proper service were obtained. Thus, the appellee’s contention that the appellant was subject to suit in this state pursuant to our Long Arm Statute, OCGA § 9-10-90 et seq., fails to address the issue before us, which is whether such jurisdiction ever attached. Moreover, just as it is inherently contradictory to assert that substituted service may be effected on a sojourner at his dwelling house or usual place of abode in this state, so it is also contradictory to suggest that substituted service may be effected upon a nonresident in such manner pursuant to the Long Arm Statute. For these reasons, we hold that the trial court erred in denying the appellant’s motion to set aside the default judgment.

Judgment reversed.

Carley and Benham, JJ., concur.

Decided October 6, 1987

Rehearing denied November 3, 1987.

S. Lee Storesund, for appellant.

Constance A. Boughan, for appellee.


text:
    75172.
    HOUSE v. THE STATE.
    (362 SE2d 429)
   Birdsong, Chief Judge.

Appellant David W. House appeals his conviction of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and speeding (OCGA § 40-6-181). A Georgia State Patrol trooper, using a radar detection device, determined that appellant was driving his motor vehicle upon a state highway at a speed of 71 miles per hour. Upon stopping appellant and observing his physical condition, which included glassy eyes, slightly slurred speech, strong smell of alcoholic beverage on the breath, and a slight unsteadiness of foot, the trooper elected to subject appellant to certain tests for intoxication. Appellant submitted to a state administered chemical test, and the test results reflected appellant’s blood-alcohol content as being .10 percent by weight of alcohol. Held:

1. Appellant’s first enumerated error is that the trial court erred in overruling the motion for directed verdict as to both counts. Our review of the transcript convinces us that ample evidence exists “from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Further, we are satisfied that the prosecution substantially complied with the requisite evidentiary requirements in the admission of State Exhibits 7 and 8 (certificate of radar calibration and Federal Communication Commission’s station license, respectively). OCGA § 24-3-14; Wiggins v. State, 249 Ga. 302 (290 SE2d 427). Appellant’s objection at trial to the admission of State Exhibits 7 and 8, in large measure, was predicated upon the basis that it constituted error for the trial judge to allow the prosecution to recall the state trooper to give testimony which would lay the foundation for the admission of these two exhibits. Appellant has failed to list specifically this issue as an enumerated error, although he refers to it as “Enumeration of Error No. 2” in his brief. Nevertheless, in the interests of judicial economy, we will resolve this issue. We find that the trial judge did not abuse his discretion in allowing the prosecution to recall the state trooper to the stand before the prosecution had rested its case. See generally Britten v. State, 221 Ga. 97 (143 SE2d 176); Traylor v. State, 163 Ga. App. 473 (294 SE2d 707).

2. Appellant’s second enumerated error is that the trial court erred in allowing the trooper, over appellant’s objection, to state repeatedly his opinion as to appellant’s state of sobriety. The trial transcript reveals that the trooper was asked his opinion as to two matters: first, as to whether appellant was under the influence of alcoholic beverages and, secondly, whether appellant would have been a less safe driver if he had not been in that impaired condition. As to the latter question, the trooper expressed his opinion at least twice. We are satisfied that the trooper could so express his opinion as to appellant’s sobriety. See generally OCGA §§ 24-9-65 and 24-9-67; Fisher v. State, 177 Ga. App. 465 (339 SE2d 744). Further, our examination of the transcript satisfies us that the trooper’s testimony as to these issues was not cumulative; however, assuming without deciding that cumulative error occurred, such error was harmless as it is “ ‘highly probable that [any such] error did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

3. Appellant’s third enumeration of error is that the trial judge erred by stating in the presence of the jury, during a colloquy with appellant’s counsel regarding the wording of a question, that “It is similar to the old question, do you still beat your wife?” This comment is not within the range of comments prohibited by OCGA § 17-8-57. See Pratt v. State, 167 Ga. App. 819 (307 SE2d 714) and cases cited therein. We note that appellant neither objected to this remark nor made a timely motion for a mistrial based thereon. Miller v. State, 180 Ga. App. 525 (349 SE2d 495). Moreover, the trial judge charged the jury that he had not expressed or intimated any opinions, while making rulings during trial regarding the case facts, witness credibility, weight of the evidence, or defendant’s guilt or innocence. Thus, we are satisfied that the comment in issue was rendered harmless in any event.

4. Appellant’s fourth enumeration of error contends the trial judge erred in refusing to give a charge which appellant had requested in writing. Specifically, appellant requested the following charge: “I charge you that it is not a violation of the laws of the State of Georgia to consume small amounts of an alcoholic beverage and drive a motor vehicle. It is a violation of the laws to consume such amounts of alcohol affecting the ability to drive a motor vehicle safely.”

The Georgia Supreme Court has held that “ ‘[a] written request to charge which is legal and adjusted to a distinct matter in issue, and which may materially aid the jury, should be given in the language requested, although covered by other instructions of the charge in more general and abstract terms.’ ” Redding v. State, 214 Ga. 524 (106 SE2d 5). citing Randall v. State, 210 Ga. 435 (80 SE2d 695) The trial judge concluded that the matters addressed in the requested charge could be argued to the jury, but that the charge would not be given. Implicit in the judge’s ruling was his determination that the requested charge would not assist and might even confuse the jury. Further, the trial judge observed that “there are some people that could consume small amounts of alcoholic beverages, whatever that means, and still be unsafe.” We agree with the express and implied conclusions of the trial judge, and conclude that the requested charge was potentially misleading as to the correct rule of law applicable in appellant’s case. Accordingly, the trial judge did not err in refusing to give the requested charge, as it did not contain a complete and true exposition of the law and was not sufficiently adjusted to the case. Bassett v. State, 119 Ga. App. 639 (168 SE2d 343). The enumerated error is without merit.

Decided October 21, 1987

Rehearing denied November 3, 1987

G. Hughel Harrison, Michael White, for appellant.

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

5. Appellant’s final enumeration of error is that the trial judge erred by failing to charge, and by deliberately omitting from the charge relating to the provisions of OCGA § 40-6-392 (b) (1), the language contained in subparts (b) (2) and (b) (3) thereof. We find that appellant’s proposed charge was not adequately adjusted to the facts of this case. Accordingly, we find this enumerated error to be without merit. Hill v. State, 211 Ga. 683, 685 (88 SE2d 145); Anderson v. State, 163 Ga. App. 603, 604 (4) (295 SE2d 564); Bassett v. State, supra.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    74353.
    TOMLIN v. THE STATE.
    (362 SE2d 489)
   McMurray, Presiding Judge.

Defendant was tried by a jury on a two-count accusation. Count 1 charged defendant with driving while under the influence of alcohol. .See OCGA § 40-6-391 (a) (1). Count 2 charged that defendant did drive and was in actual physical control of a moving vehicle “[w]hile there was in his blood 0.12 percent or more by weight of alcohol.” See OCGA § 40-6-391 (a) (4). The same conduct formed the basis for both counts of the accusation. The jury returned verdicts of guilty under Count 1 and Count 2 of the accusation; however, the trial court sentenced defendant without specifying whether it was for Count 1 or 2. This appeal followed. Held:

1. In his first enumeration of error, defendant contends the trial court erred in charging the jury that he could be found guilty of both counts of the accusation.

“In § 12 of Ga. L. 1983, pp. 1000, 1015-1016, the General Assembly struck our former DUI statute in its entirety and inserted ‘in lieu thereof a new Code Section 40-6-391. . . .’ The new OCGA § 40-6-391 (a) makes it a criminal offense to ‘drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol; ... or (4) There is 0.12 percent or more by weight of alcohol in (the) blood.’ (Emphasis supplied.) ... In Peters v. State, 175 Ga. App. 463 (333 SE2d 436) (1985) and Atkins v. State, 175 Ga. App. 470 (333 SE2d 441) (1985), this court held that subsections (a) (1) and (a) (4) of the statute establish different crimes. However, our Supreme Court has clearly held otherwise. ‘Subsection (a) (4) simply sets out an alternative method of proving the crime established by the DUI statute.’ (Emphasis supplied.) Lester v. State, 253 Ga. 235, 238 (320 SE2d 142) (1984). See also Melton v. State, 175 Ga. App. 472, 473 (333 SE2d 682) (1985).” Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770).

“It is thus clear that, [in the case sub judice, defendant] was tried on an accusation which charged him with but one crime committed in two alternative ways. ‘ “Where an (accusation) charges one offense committed in different ways, in several counts, a conviction on one or some of the counts, supported by sufficient legal proof will be upheld. . . . The verdict. . . can not harm the defendant; for the punishment is the same whether the conviction is sustained on one count or on more than one count.” ’ Bowen v. State, 47 Ga. App. 9, 11 (170 SE 104) (1933). Thus, if the evidence authorized it, the jury could have found [defendant] guilty on Count I, or on Count II, or on both, but he could be sentenced for only one DUI violation.” Hogan v. State, 178 Ga. App. 534, 535, supra. Consequently, in the case sub judice, the trial court did not err in charging the jury that defendant could be found guilty on both counts of the accusation. “ ‘(W)here one [misdemeanor] is set out in various ways in the different counts to meet diversities in the proofs, no election of counts will ordinarily be required, but all will be kept open for the jury to pass upon in their verdict.’ Sutton v. State, 124 Ga. 815, 816-817 (53 SE 381) (1906).” Hogan v. State, 178 Ga. App. 534, 537, supra.

2. In his second enumeration of error, defendant contends “[t]he Trial Court erred in its failure to properly instruct the jury that the statutory presumption of intoxication [was] rebuttable . . .”

“ ‘[D]efense counsel neither objected nor reserved the right to later object, and under such circumstances, the defendant has waived the right to raise the issue on appeal.’ Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).” Paul v. State, 176 Ga. App. 524, 525 (2) (336 SE2d 379).

Decided November 3, 1987.

Jerry M. Daniel, for appellant.

James C. Abbot, Solicitor, for appellee.

3. The transcript of the sentencing of defendant reflects that the trial court stated “there can only be one punishment and therefore the Court is punishing him under count blank.” (Emphasis supplied.) As the written sentence fails to reflect specifically upon which count the defendant was sentenced, defendant’s sentence must be vacated and the case remanded with direction that the trial court resentence defendant with the trial court’s sentence reflecting whether the new sentence is on Count 1 or Count 2.

Judgment affirmed as to the DUI conviction; judgment vacated as to the sentence and case remanded with direction.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.


text:
    75048.
    PHILLIPS v. LINDSEY.
    (362 SE2d 491)
   Benham, Judge.

Appellant Phillips was injured when she was attacked by a dog owned by appellee Lindsey in Lindsey’s home. Appellant filed suit against appellee, alleging he was negligent in failing to restrain, muzzle, or confine the dog in light of his knowledge that the animal had previously bitten someone. The trial court granted summary judgment in favor of appellee, concluding that appellant was appellee’s social guest whose knowledge of the dog’s aggressive nature was equal to that of appellee. Appellant seeks reversal of the judgment entered.

Appellant maintains the grant of summary judgment was in appropriate because the facts presented a question of fact concerning her legal status. The trial court concluded that appellant was a licensee because she was a social guest. However, there was evidence that appellee asked appellant to enter his home to perform a service for him, i.e., to look over a jury questionnaire he had received, and there was evidence that appellant was performing the task requested by appellee at the time she was injured. Construing as we must on summary judgment the evidence in favor of the nonmovant, there was evidence that appellant was an invitee. Sutton v. Sutton, 145 Ga. App. 22, 24 (243 SE2d 310) (1978). Appellee, therefore, may be liable to appellant/invitee “for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

Decided November 3, 1987.

Robert L. Herman, David A. Sleppy, for appellant.

Samuel A. Murray, for appellee.

“[T]o prevail on motion for summary judgment, the defendant in such a case, as movant, has the burden of proof and thus must establish the absence of such superior knowledge [of the existence of the hazardous or defective condition on his premises] on [his] part, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. [Cits.] Although the plaintiff-appellant in the present case was obviously well aware of the existence of the [dog] ... , it does not follow that she was fully aware, as a matter of law, of the full extent of the danger involved. It has repeatedly been held that ‘mere knowledge’ of the existence of a dangerous or defective condition does not necessarily constitute ‘full appreciation of the risk involved.’ [Cits.] . . . The appellee, on the other hand, may reasonably be presumed to have had at least constructive knowledge of the [dog’s vicious propensities] and the danger presented thereby, since it was [his dog], [Cits.] It is well-settled that issues of negligence, diligence, contributory negligence, proximate cause, and assumption of risk are not to be decided by the court as a matter of law except in plain and indisputable cases. [Cit.] The evidence of record in the present case does not establish indisputably that the appellant’s knowledge of the danger involved . . . was equal to or greater than the appellee’s. Consequently, the trial court erred in granting the appellee’s motion for summary judgment.” Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986).

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    75328.
    75329.
    DOBY v. GREEN et al. DOBY v. WARNER et al.
    (362 SE2d 492)
   Pope, Judge.

Appellant prisoner brings these appeals from the trial court’s dismissal of his actions against appellee prison officials for alleged deprivation of civil, statutory and constitutional rights. Held-.

1. In both appeals appellant enumerates as error the trial court’s “conducting an ex parte hearing at the exclusion of appellant which resulted in dismissal.” However, due process does not grant a prisoner the right to attend court on civil proceedings which he initiates. In the Matter of Warden of Wis. State Prison, 541 F2d 177 (4) (7th Cir. 1976); 16C CJS, Constitutional Law, § 1101. Therefore, this enumeration of error has no merit.

Decided November 3, 1987.

James R. Doby III, pro se.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellees.

2. Appellant’s remaining enumeration, that “the court erred by dismissing the suit without deciding all of the merits,” is not supported factually by the record. The issues appellant contends were disregarded all relate to grievance procedures and forms, for which there is no constitutional cause of action. See Jones v. N. C. Prisoners’ Union, 433 U. S. 119, 137-138 (97 SC 2532, 53 LE2d 629) (1977), Burger, C. J., concurring. The trial court thus properly dismissed the action in Case No. 75329. for failure to state a claim upon which relief can be granted.

Judgments affirmed.

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


author: Beasley, Judge.

text:
    74600.
    GOSS et al. v. BAYER.
    (362 SE2d 768)
   Beasley, Judge.

Plaintiff/appellee filed a separate dispossessory proceeding against each defendant. The two defendants/appellants filed separate answers which included counterclaims for monies allegedly owed to them.

By agreement the cases were consolidated for trial. They were heard by the trial court sitting without a jury. Both sides were represented by counsel and presented evidence. Neither objected to the absence of a jury nor made any request with regard to such issue. After the trial, the trial court entered its findings of fact and conclusions of law and rendered judgment for the plaintiff on his dispossessory proceedings in the amount of $2,293.96 and against the defendants on their counterclaims finding they were “entitled to take nothing.”

Afterwards, in their motion for new trial, defendants contended the verdict was illegal as to their counterclaim because they were denied their constitutional right to a jury trial which had not been legally waived. Upon the denial of that motion, defendants appeal to this court asserting error because there was no legal waiver of their, right to a jury trial.

1. The motion to dismiss the appeal is denied. Where appellee has recovered between one cent and $2,500 on his complaint and has prevailed on appellant’s counterclaim (a zero judgment) then a direct appeal is proper. Honester v. Tinsley, 183 Ga. App. 146 (358 SE2d 295) (1987).

2. The U. S. and Georgia Constitutions provide for the preservation of jury trials. Georgia Const, of 1983, Art. I, Sec. I, Par. XI; 7th Amendment to U. S. Constitution. Formerly, our Supreme Court held that this right could be conditioned upon a proper demand. Flint River Steamboat Co. v. Foster, 5 Ga. 194, 205-208 (6-9) (1848). Sutton v. Gunn, 86 Ga. 652, 657 (2) (12 SE 979) (1891); Patterson & Son v. Barnett Nat. Bank, 150 Ga. 241 (1) (103 SE 224) (1920).

OCGA §§ 9-11-38 and 9-11-39 (Rules 38 and 39 of the Civil Practice Act) now provide that jury trials in civil cases are automatic where the right is declared by the constitution of the state or given by statute except where the parties consent to a bench trial “by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record.” OCGA § 9-11-39 (a).

Our Court has reasoned that one may also waive the right by conduct indicative of the fact that the right is not asserted. Thus, Servisco v. R. B. M. of Atlanta, 147 Ga. App. 671, 672 (2) (250 SE2d 10) (1978) held: “A party to litigation cannot ‘voluntarily participate in a trial before a judge without a jury, proceed without reservation to have the trial court hear the case without the intervention of a jury, not object to the trial court’s rendering judgment on the merits, and, then, after an unfavorable judgment is rendered, set aside the judgment because no jury trial was had . . .’” Accord Raintree Farms v. Stripping Center, 166 Ga. App. 848 (1) (305 SE2d 660) (1983); York v. Miller, 168 Ga. App. 849 (310 SE2d 577) (1983). See Wise &c. Assoc. v. Rosser White &c., 146 Ga. App. 789, 795 (6) (247 SE2d 479) (1978); Holloman v. Holloman, 228 Ga. 246, 247 (1) (184 SE2d 653) (1971) .

Appellants cite Simonton Constr. Co. v. Pope, 213 Ga. 360, 361 (2) (99 SE2d 216) (1957), as authority that the right to a jury trial may not be impliedly waived but must be expressly waived. That case dealt with exceptions of fact to an auditor’s report which must be passed upon by a jury; it has been cited as authority for the general proposition regarding all types of jury trials only in Henderson v. County Bd. of Registration, 126 Ga. App. 280, 284 (1) (190 SE2d 633) (1972) .

As pointed out in Wise &c. Assoc., supra, Simonton Constr. Co., supra, must be limited to its facts. Moreover, because the “full bench” rule has been abolished, Hall v. Hopper, 234 Ga. 629, 630-632 (216 SE2d 839) (1975), we are not bound by that decision or any prior thereto; insofar as it conflicts with Holloman, supra, it must yield to that ruling which “being later in time is the more persuasive decision.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (2) (219 SE2d 115) (1975); Hill v. Hosp. Auth., 137 Ga. App. 633, 638 (3) (224 SE2d 739) (1976).

Decided October 16, 1987

Rehearing denied November 4, 1987

Denmark Groover, Jr., for appellants.

Walter H. Bush, Jr., Nan A. Jennings, for appellee.

Appellants in this case waived their right to a jury trial by their “conduct” in participating in the bench trial and their “silence” in failing to protest or object. See Sutton v. Gunn, 86 Ga. 652, 657, supra.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.

       In addition Simonton, supra, was not full bench while Holloman, supra, was. See Pelham &c. Assn. v. Williams, 216 Ga. 730, 732 (119 SE2d 578) (1961).


text:
    74706.
    CLEGHORN v. CITY OF ALBANY.
    (362 SE2d 386)
   Birdsong, Chief Judge.

Marita Cleghorn sued the City of Albany for injuries allegedly sustained in the Albany Civic Center, when following an intermission at a concert she fell down an unlighted stairway. The trial court granted summary judgment to the City on the basis of governmental immunity under OCGA § 36-33-1. Cleghorn appeals. Held:

1. The disputed issue, at bottom, is the significance of the language in Cornelisen v. City of Atlanta, 146 Ga. 416, 419 (91 SE 415), in interpreting the meaning of “ministerial” acts not entitled to immunity under OCGA § 36-33-1, to the effect that “if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty.” (Emphasis supplied.)

The appellant Cleghorn contends there is no governmental immunity in this case because the City of Albany has charter authority to operate the facility, and did in fact and by authority of city ordinance operate the Civic Center primarily as a source of revenue; that is, she contends the issue is whether the Civic Center was intended to make a profit. However, the City argues the language from Cornelisen, quoted above, and other cases removes immunity only if the City has more or less express authority granted in the charter to operate the facility primarily as a source of revenue.

Accepting for the moment as the standard regulating the loss of immunity, a charter-granted power to raise general revenues for use by the City, the precise meaning and application of the Cornelisen language is crucial here because while there is a charter giving the City of Albany the authority to operate the Civic Center and requiring the city manager to “remain responsible for the proper use” of that authority, the charter itself does not make clear whether it is to be operated “primarily as a source of revenue,” or for the purpose of sustaining the operation of the civic center from self-generated funds for the public good. There is a detailed city ordinance which among other things provides for the “protection policy” of the Civic Center, protection being defined as “the ability to regulate rental of the Civic Center facility ... to ensure the maximum net revenue from the facility to the City and promoters.” The ordinance further provides that among the criteria for establishing protection there shall be included a determination of “which events are best suited financially for the Civic Center and will provide the highest net revenues. . . . Reputation of event (including profitability) . . . [and] [n]et revenue from concessions.” Further, the ordinance provides: “There will be no free use of the Albany Civic Center.”

The City says, and the trial court evidently found, that whether the Civic Center was in fact intended to make a profit (“net revenues”), was operated to make a profit, or did make a profit, is not the point; but that the sole determination to be made is whether the charter gives authority to operate the facility “primarily as a source of revenue,” under Cornelisen. Obviously the charter does not make such a provision. Thus the court in reality addressed the question of whether the City was acting within the powers granted by the charter or was acting in excess or outside the charter powers and thus ultra vires.

We find that the power to make a profit is not the meaning of the statement in Cornelisen at p. 419, that “if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty.” (Emphasis supplied.) This language originated in Cooper v. Mayor &c. Athens, 53 Ga. 639-640 where the suit was for negligence in maintaining a ferry. The Supreme Court held that since the City had no authority to operate a ferry at all, neither by charter nor by special statute, the operation of it was ultra vires, and therefore the City could not be held liable for negligence in its operation. The distinction was made that “in order to charge a corporation in an action on the case for negligence in the performance of a public work, the law must have imposed a duty or conferred the power to do such work. A clear distinction is drawn in the authorities between cases where the act done is within the scope of the corporate powers as given by the charter or by special statute (emphasis supplied), and those cases where it is clearly ultra vires, and not within the power of the corporation to act in reference to the matter at all. If the act complained of be not in this sense ultra vires, that is, if it be within the scope of such duties and powers as are prescribed by law, the corporation is liable for the negligence of its servants in their performance of such duties and powers. But if such wrongful act is outside of its special or general powers, it is not liable, whether it was done by command directly of the corporate authorities, or resulted from the negligence of its officers in the performance of such unauthorized work.”

The court in Cooper further distinguished this principle involving a wrongful act done outside the City’s powers from the case of Mayor &c. of Savannah v. Wilson & Gibson, 49 Ga. 476, where the City “had the power by law to establish and erect a market house, but not in the street where it had temporarily erected one. In exercising the authority granted them, they abused it to the injury of some of the citizens, and were held liable.” The court described the Savannah case and others similar as cases arising from “illegal acts, but which spring from matters or transactions within the general or special powers of the corporation.” But the acts sued for in Cooper, it was held, were clearly ultra vires, “outside of and beyond any power or duty conferred on the corporation, and was not done in the performance of such duty or powers as is directly granted, or which was within the scope of those which are conferred.”

Therefore, the objective question is further refined to one of not whether the charter expressly grants authority to operate the facility for a profit, but rather whether, according to Cooper, the City has authority by charter or special statute, to operate the particular facility at all. But we must note yet another distinction. In Cornelisen, p. 418, the court further declared that the doctrine of immunity under the statute, “has no application where the duties, under proper charter authority, relate to branches of municipal endeavor which are private in their nature, primarily for revenue and promotion of municipal welfare.” The Cornelisen court related the case of Mayor &c. of Savannah v. Cullens, 38 Ga. 334, wherein it was said: “[The market-house maintained by the City in which it rented stalls to vendors of marketable produce] ‘was the property of the corporation, from which it derived a revenue in the way of rents. Why was it not just as much bound to keep that safe as a merchant is the floor of his store? To keep the market in a safe condition, it being property, and used by the city for its revenues, was a private duty.’ ”

Thus Cornelisen extended the scope of inquiry of Cooper beyond the question of whether the City had authority to operate the facility or activity to whether the facility or activity was operated “primarily ... as a place of resort for pleasure and promotion of health of the public at large [a public function] . . . [or] primarily as a source of revenue [a ministerial function].” Id. p. 419. Nevertheless, some cases have inferred, out of context, that the Cornelisen statement, “But if the city, having charter authority, maintain the park primarily as a source of revenue, [liability attaches],” means that in order for operation of a facility to be a ministerial function the city charter must expressly provide authority to operate the facility primarily as a source of revenue. See, e.g., Pollock v. City of Atlanta, 88 Ga. App. 737 (77 SE2d 579); Watkins v. City of Toccoa, 55 Ga. App. 8 (189 SE 270); Petty v. City of Atlanta, 40 Ga. App. 63 (4) (148 SE 747). These cases do not control for they ignore the possibility of a purely public function.

City of Atlanta v. Mapel, 121 Ga. App. 567 (174 SE2d 599) involved a boy who suffered severe and permanent brain injury on being struck by a golf ball at a city golf course. We acknowledged the confusing and often uneven judicial treatment of these cases, and quoted Cornelisen as providing a “consistent key” in Georgia. But the “key” was not stated as whether the city charter granted authority to operate the facility as a source of revenue, because it seemed obvious that “[c]ities don’t operate facilities primarily as a source of revenue, and the legislature does not ordinarily give this kind of charter authority.” We concluded it was “fundamental that any city activity or operation is carried on primarily for the public benefit, even if for only a limited segment of the public,” and therefore found “patently ridiculous” the distinction inferred from Cornelisen to immunize only activities authorized by charter to be operated “primarily as a source of revenue.” Finding no such express authority, we affirmed the grant of summary judgment to the City. More recently, in Johnson v. City of Atlanta, 171 Ga. App. 296 (319 SE2d 506), we eschewed reliance solely upon the city charter and, consistent with Cornelisen, focused on the fact that Grant Park Recreation Center, when a child was injured at summer camp, was maintained “primarily for the public benefit” (see Cornelisen, p. 419) and not primarily as a source of revenue, and thus affirmed the bar of immunity.

It is clear that if a facility or activity is operated primarily as a source of revenue, its governmental immunity is lost along the way to business-as-usual, as in the case of the Savannah produce market. Mayor &c. of Savannah v. Cullens, supra; Cornelisen, supra, p. 418. Whether the enterprise turns a profit, or only an incidental profit 0Cornelisen, p. 419) is not the controlling point; what is significant is the character of the facility as “primarily a source of revenue” rather than being used primarily for the benefit of the public regardless of incidental generation of revenues. As we recognized in City of Atlanta v. Mapel, supra, legislatures and city councils will seldom give this kind of charter authority; but it is not uncommon that a City will operate a facility or enterprise primarily as a source of revenue and this might be proved by the facts themselves even without a “special statute” urging its operation for “net revenues,” “profitability,” and “to ensure the highest possible revenue,” as in this case. Moreover, the better question is not the more limited one first posed in Cooper, i.e., whether the City has authority to operate the facility, since under that test a City ultra vires operating an unauthorized facility, though it be strictly for profit, would find itself immunized. While under Cornelisen and our decision in Johnson v. City of Atlanta, it is not necessary to find such express authority to operate for revenue, the city ordinances in this case are sufficient to take the operation of this facility out of the category of facilities operated primarily as a “place of resort for pleasure and promotion of health of the public.” Cornelisen, supra, p. 419.

The trial court erred in granting summary judgment to the City on the apparent basis that the charter itself did not expressly grant authority to operate the facility primarily as a source of revenue, this not being the sole determinative standard. There still remained the question of whether the facility was designed to “maximize revenues” or to be operated primarily for the general good of the public.

2. Appellant contends the trial court erred in sustaining the City’s objections to the affidavit of a former Albany City Commissioner submitted in opposition to the City’s motion. In this affidavit, Bert Jones stated, upon his personal knowledge, that he was a commissioner during the time that operation and function of the Albany Civic Center was considered by the commission. He stated: “The Albany Civic Center was a commercial enterprise by the City of Albany. Although the Civic Center did not turn a profit during my tenure as a commissioner, [its] intended purpose was to generate revenues for the general use of the City of Albany to eliminate operational costs and hopefully reduce its debt service. The City also hoped that it would profit through an increased amount of commercial activity for Albany merchants and business from patrons of the Civic Center. . . . The Albany Civic Center was always considered as a potential source of revenue for the City of Albany.”

Clearly the form of much of what this affiant says is objectionable, being an attempt to express a legislative will and intent best left to the statement of that will and proper interpretation of it (Southern R. Co. v. A. O. Smith Corp., 134 Ga. App. 219 (213 SE2d 903)); but the subject matter is not so sanctified or beyond scrutiny that the affiant may not state what his own view and opinion in the proceedings were, and what he intended to achieve as a fact, so long as in doing so, he does not attempt to contravene or impeach the legislation. Summer v. Allison, 127 Ga. App. 217 (1) (c) (193 SE2d 177). The trial court did not err in sustaining the objections to the affidavit as it was stated.

Decided September 18, 1987

Rehearing denied November 4, 1987

Hilliard P. Burt, Terry J. Marlowe, for appellant.

Mark A. Gonnerman, Dawn G. Benson, for appellee.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Pope, J., concur.