text:
    A89A1186.
    SHEPARD v. LANDERS.
    (388 SE2d 12)
   Benham, Judge.

This is an appeal from the entry of a decree of adoption. Appellant is the natural father of two minor children, ages 9 and 10. Appellant and the mother of the children were divorced in 1981, at which time the trial court ordered appellant to pay $200 per month as support for the children. It is undisputed that appellant did not make any payments pursuant to that order. In late 1981, the children and their mother began living with appellee; in 1984 appellee and the mother were married; and in 1985, the names of the children were legally changed from “Shepard” to “Landers.” On October 10, 1988, appellee filed a petition to adopt the minor children. Appellant objected to the adoption, and after a hearing on January 17, 1989, the trial court granted a final decree of adoption.

1. Appellant’s first enumeration of error is that the trial court erred in finding that appellant failed significantly for a period of one year or longer immediately prior to the filing of the petition to provide for the care and support of his children as required by judicial decree. It is undisputed that appellant was ordered in 1981 to pay $200 per month as child support and that he failed to make any of those payments.

The evidence shows that appellant visited his children primarily at Christmas and Easter, at which times he gave them clothes and other gifts. Other than occasional monetary gifts, there is no evidence of any financial support by appellant. Occasional visits and gifts do not constitute significant care and support for the children. Jessee v. Nash, 169 Ga. App. 746 (315 SE2d 260) (1984). Appellant contends that the $35 per week he paid for medical insurance for the children constituted significant support. However, appellant’s voluntary decision to provide insurance coverage did not relieve him of . his obligation to pay the court ordered support. See, e.g., In re J. S. J., 180 Ga. App. 873 (3) (350 SE2d 843) (1986). In determining whether significant steps have been taken with regard to support, “sporadic and de minimis” efforts do not require the court to find that there has been significant support. Id.

The evidence was sufficient to authorize the trial court to find that appellant had failed to provide significant support for the one year preceding the petition, and that adoption was in the best interests of the children. Curde v. Matson, 190 Ga. App. 782 (2) (380 SE2d 71) (1989).

2. Appellant contends that the trial court’s finding that the adoption was in the best interests of the children was in error because of appellant’s “close relationship” with his children. Appellant’s relationship consists primarily of short visits at Christmas and Easter. Appellee has cared for, raised, and supported the children for the past eight years. Appellant’s failure , to provide any significant financial support for the children during that time may be considered in determining the best interests of the children. A rational trier of fact could have found by clear and convincing evidence that adoption was in the best interests of the children. Curde v. Matson, supra.

Decided October 19, 1989

Rehearing denied November 6, 1989

Kathleen K. Thalgott, Vicky 0. Kimbrell, Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.

J. Clayton Stephens, Jr., for appellee.

Accordingly, we hold that the trial court did not err in entering a decree of adoption.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A1298.
    SHANK v. PHILLIPS.
    (388 SE2d 5)
   Pope, Judge.

Plaintiff Bobby Lee Shank was employed as assistant store manager of the Wal-Mart store in Douglasville. He requested one of the store employees, 16-year-old Michael Phillips, to use the pick-up truck his father allowed him to drive to work to transport some stock from a warehouse across the street from the store to storage trailers in the store parking lot. Plaintiff was injured when Michael Phillips mistakenly placed the truck in reverse gear pinning plaintiff between the truck and a storage trailer. Plaintiff received workers’ compensation benefits for his injuries. He also brought an action against defendant Charles A. Phillips, father of Michael Phillips, alleging defendant was liable for his son’s negligence pursuant to the family purpose doctrine. We affirm the trial court’s order granting summary judgment to defendant and denying summary judgment to plaintiff.

1. Pursuant to the family purpose doctrine, the defendant is liable for the torts committed by his son “by his command or in the prosecution and within the scope of his business. . . .” OCGA § 51-2-2. “ ‘Under [the family purpose] doctrine, the owner of an automobile who permits members of his household to drive it for their own pleasure or convenience is regarded as making such a family purpose his “business,” so that the driver is treated as his servant.’ Prosser, Law of Torts 496, § 72 (3rd ed. 1964). . . .” Medlin v. Church, 157 Ga. App. 876, 878 (278 SE2d 747) (1981). Liability under the family purpose doctrine rests upon a fictional agency theory. See Murch v. Brown, 166 Ga. App. 538 (304 SE2d 750) (1983); Johnson v. Brant, 93 Ga. App. 44 (90 SE2d 587) (1955). The issue in this case is whether at the time of defendant’s injury the vehicle was being used for a family purpose so that the driver was acting as agent for his father or for some other purpose for which the father could not be held liable under a theory of respondeát superior.

Defendant admitted by affidavit that the pick-up truck belonged to him and that he provided the vehicle for the comfort and convenience of his family, including his son. However, defendant denied it was his purpose to provide a vehicle to be used by Wal-Mart, Inc., in the furtherance of its business. If this injury had occurred while the son was on his way to or from work no question would exist that the vehicle was being used for a family purpose. However, at the time the injury occurred, the use of the vehicle had been usurped by Wal-Mart at the request of the driver’s supervisor, the plaintiff. The son was no longer acting as his father’s agent in pursuing his own, and therefore his family’s, pleasure or convenience but was acting as an agent of Wal-Mart, a commercial business. Any vicarious liability for the alleged negligence of the son in this case would flow to Wal-Mart, his employer, and not to his father. We will not extend the family purpose doctrine to hold a parent liable for the acts of a child performed in the child’s capacity as agent or employee for another person or entity. Because plaintiff was also an employee of Wal-Mart and his injury arose out of his employment, plaintiff’s exclusive remedy against the driver and the driver’s master, Wal-Mart, was pursuant to the Workers’ Compensation Act.

2. Plaintiff’s affidavit stating that defendant gave his son permission to use the truck for errands for his supervisors at Wal-Mart is merely a conclusory statement which was directly contradicted by defendant’s own affidavit and therefore is not competent evidence on the issue of the extent of the driver’s permission. See Harvey v. C. W. Matthews Contracting Co., 114 Ga. App. 866 (1) (152 SE2d 809) (1966). Moreover, liability under the family purpose doctrine must be predicated not only upon the parent’s permission to drive the vehicle but also upon the fact that at the time of the allegedly negligent act the driver was pursuing a family purpose. See Quattlebaum v. Wallace, 156 Ga. App. 519 (275 SE2d 104) (1980). For the reasons discussed in Division 1, above, the trial court did not err in concluding that the family purpose doctrine was inapplicable to this case and thus did not err in denying plaintiff’s motion for summary judgment.

Judgment affirmed.

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

Decided October 12, 1989

Rehearing denied November 6, 1989

Carl V. Kirsch, for appellant.

Saveli & Williams, Elmer L. Nash, S. Lester Tate III, for appellee


author: Carley, Chief Judge.

text:
    A89A1341, A89A1409.
    CONTINENTAL INSURANCE COMPANY v. SOUTHERN GUARANTY INSURANCE COMPANY; and vice versa.
    (388 SE2d 16)
   Carley, Chief Judge.

While in the course of his employment, Mr. Murray S. Marshall was struck and injured by a vehicle driven by an uninsured motorist. Marshall is the named insured under two policies which provide him with uninsured motorist coverage. One policy was issued to Marshall’s employer by Continental Insurance Company (Continental) and has limits of $500,000. The other is Marshall’s own personal automobile policy which was issued to him by Southern Guaranty Insurance Company (Southern) and which policy has limits of $100,000. When Marshall filed suit against the uninsured motorist, both Continental and Southern were served with copies of the complaint and each filed an answer in its own name.

Subsequently, Continental and Southern filed cross-motions for summary judgment on the issue of the extent of Marshall’s uninsured motorist coverage. The trial court found that the two policies were “stackable” and that Marshall was provided with a total of $600,000 in uninsured motorist coverage. However, the trial court also found that the $600,000 in stackable uninsured motorist coverage should be prorated, with Continental bearing responsibility for five-sixths of any judgment that might be returned against the uninsured motorist and Southern bearing responsibility for one-sixth of any such judgment. In Case No. A89A1341, Continental appeals from the order of the trial court on the cross-motions for summary judgment. In Case No. A89A1409, Southern cross-appeals from that order.

Case No. A89A1341

1. In Georgia Farm &c. Ins. Co. v. State Farm &c. Ins. Co., 255 Ga. 166 (336 SE2d 237) (1985), the Supreme Court held that the pro-ration of stackable coverage as between uninsured motorist carriers is not viable. Instead, the Supreme Court held that “[t]he insurance company receiving a premium from [the injured insured] will be [initially] responsible for compensating [the insured] under [his] policy.” Georgia Farm &c. Ins. Co. v. State Farm &c. Ins. Co., supra at 167. Subsequent cases have uniformly held that proration is inappropriate and that it is the carrier that receives a premium from the injured insured that bears initial responsibility for compensating him up to its policy limits. See Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 186 (1) (345 SE2d 858) (1986); Ford v. Ga. Farm &c. Ins. Co., 191 Ga. App. 735 (382 SE2d 659) (1989). Where receipt of a premium from the injured insured is shown to exist, it is controlling to the exclusion of consideration of any other factors which might be otherwise present. “A stated purpose of the Supreme Court’s holding in Ga. Farm &c. Ins. Co., supra, was to ‘simplify such cases in the future.’ [Cit.] In order to accomplish this, the court established the easily ascertainable and risk-measurable criterion of receipt of premium from the injured [insured] for determining primary [uninsured motorist] liability. [It is only] [i]n a situation . . . where that critical factor is not present. . . [that] we must look to another or other indicia which similarly will provide a clear rule. . . . [T]he factor of premium payment ... is a single and uniformly-occurring fact which addresses itself to the relationship of the injured [insured] to the policy rather than the circumstances of the injury to the policy. This status rather than incident context controls.” Travelers Indem. Co. v. Md. Cas. Co., 190 Ga. App. 455, 457 (379 SE2d 183) (1989).

Here, as in Georgia Farm &c. Ins. Co., supra, it is undisputed that Marshall is afforded uninsured motorist coverage under the Southern policy and that the premium for that policy was paid by himself. “Although there is no dispute that [Marshall] was at the time of injury in the course of [his] employment, such circumstances are often in dispute and not susceptible of simple resolution. The merely periodic coverage of [Marshall] by [his] employer’s policy [with Continental] makes it more distant than the constant, time-comprehensive coverage afforded to [him] by [his own personal] policy [with Southern].” Travelers Indem. Co. v. Md. Cas. Co., supra at 457. Accordingly, the trial court erred in prorating the stackable uninsured motorist coverage and further erred insofar as it failed to hold that Continental was the excess carrier with responsibility for compensating Marshall up to its $500,000 policy limit only upon the exhaustion of the $100,000 limit of Southern’s primary policy.

2. A contrary holding is not mandated by the appearance in the Southern policy of a clause whereby Southern agreed to pay only its proportional share of Marshall’s loss “if there is other applicable similar insurance. ...” See Allstate Ins. Co. v. Fire &c. Ins. Co. of Conn., 181 Ga. App. 610 (353 SE2d 38) (1987).

Decided October 20, 1989

Rehearing denied November 6, 1989

Brannen, Searcy & Smith, Leesa A. Bohler, for appellant.

Patrick T. O’Connor, Jeffery L. Arnold, Karsman, Brooks & Callaway, Kran Riddle, for appellee.

Case No. A89A1409

3. Southern enumerates as error the trial court’s proration of the stackable uninsured motorist coverage and its failure to hold that Continental was the primary carrier. As we have held in the main appeal, although the trial court did err in prorating the stackable uninsured motorist coverage, it also erred insofar as it failed to hold that Continental was not the primary carrier. It necessarily follows that, although the trial court’s order must be reversed as to the proration issue, it must be affirmed as to the denial of Southern’s cross-motion for summary judgment on the primary carrier issue. As a matter of law, there can be no proration of stackable uninsured motorist coverage. Under the circumstances of this case, Southern is the primary carrier and Continental is the excess carrier.

Judgment reversed in Case No. A89A1341. Judgment affirmed in part and reversed in part in Case No. A89A1409.

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


author: Sognier, Judge.

text:
    A89A1646.
    THE STATE v. BARBER.
    (388 SE2d 350)
   Sognier, Judge.

Fred W. Barber, Jr. was indicted in Fulton County on four counts of violating the Georgia Medical Assistance Act by falsifying reports claiming reimbursement for prescriptions. He entered a plea of not guilty and filed a plea to the jurisdiction, alleging improper venue. The trial court dismissed the indictment for improper venue and the State appeals.

The relevant facts, as stipulated by the parties, are as follows: Appellee owns and operates a pharmacy in Pierce County. He has been a Medicaid provider since July 1977 under an agreement with the Georgia Department of Medical Assistance (DMA) requiring him to dispense medications permitted by DMA to eligible Medicaid recipients. He then prepares lists containing the name of the Medicaid recipient and the name and quantity of the drug dispensed and submits these lists to DMA for reimbursement. The indictment in the case at bar alleges that in 1987, appellee filled prescriptions for Medicaid recipients for drugs not eligible for reimbursement, listing in his report in their stead medications permitted by DMA.

The sole question presented for review is that of proper venue for trial of a defendant charged with the violation of OCGA § 49-4-146.1 (b) (2), which provides that “[i]t is unlawful . . . [f]or any provider knowingly and willfully to accept medical assistance payments to which he is not entitled or in an amount greater than that to which he is entitled, or knowingly and willfully to falsify any report or document required under this article.” The State contends the trial court erred by dismissing the indictment for improper venue because the statutory scheme clearly contemplates the submission of documents to the offices of DMA, which are in Fulton County. The State argues that where the indictment charged appellee with falsifying reports “sent” to DMA, the acts of “sending” and “submitting” determine venue. We do not agree, and affirm the trial court’s order.

“The constitutional and statutory law of this State require that all criminal cases be tried in the county where the crime was committed unless otherwise provided by law. Art. VI, Sec. II, Par. VI, Ga. Const, of 1983; OCGA § 17-2-2.” Schiefelbein v. State, 258 Ga. 623 (373 SE2d 354) (1988). As OCGA § 49-4-146.1 provides no specific statutory venue, to determine proper venue we must decide where the crime was committed. Our review of both the statute and the indictment persuade us that the crime, in this case, consisted of the act of “falsifying,” rather than the act of “submitting” or “sending,” and thus we conclude that the crime was committed in Pierce County and venue is proper there. We agree with appellee and the trial court that the technique set forth in United States v. Mendel, 746 F2d 155 (2d Cir. 1984), i.e., “ ‘[studying] the key verbs which define the criminal offense in the statute,’ [cits.],” id. at 164 (3), is helpful in determining venue in doubtful cases. However, in making our determination we also find authority in Georgia case law.

We find the case sub judice analogous to Goldstein v. State, 94 Ga. App. 437 (95 SE2d 47) (1956), in which the appellant, who lived in Baldwin County, was indicted and convicted in Baldwin County for forging hospital insurance claims he had mailed to his insurance carrier’s office in Bibb County. This court affirmed the trial court’s ruling that venue was proper in Baldwin County, rejecting appellant’s contention that the criminal act had been committed in Bibb County, and holding that “[t]he mere fact that the [forged] claims had to be mailed or taken to the office of the insurance company in Bibb County, nothing more appearing, does not establish venue in that county rather than in Baldwin where the trial was conducted.” Id. at 437 (3). We find distinguishable on their facts Rose v. State, 4 Ga. App. 588 (62 SE 117) (1908) (disapproved on other grounds, R. M. Rose & Co. v. State, 133 Ga. 353 (65 SE 770) (1909)); Bowler v. State, 145 Ga. App. 633 (244 SE2d 142) (1978), and Thayer v. State, 189 Ga. App. 321 (376 SE2d 199) (1988), cited by the State. Those cases, in which this court held that venue was proper in counties where the defendants did not reside, involved the solicitation of orders for intoxicating liquors (Rose) and several schemes to defraud consumers in violation of the Georgia Securities Act (Bowler and Thayer), and thus the essence of the crime in each of those cases was the communication or solicitation of the offer to the consumer. As pointed out by appellee, solicitation, “like the tango, . . . takes two,” whereas the crime in the case at bar, falsifying a document, does not.

Decided October 19, 1989

Rehearing denied November 6, 1989

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Joyce M. Averils, Doris L. Downs, Assistant District Attorneys, for appellant.

Jack J. Helms, Robert H. Walling, for appellee.

The charges in this case having been brought in Fulton County, we find no error by the trial court in dismissing the indictment for improper venue.

Judgment affirmed.

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


text:
    A89A1942.
    CATLETT v. CATLETT.
    (388 SE2d 14)
   Sognier, Judge.

Louise Catlett brought suit against her former husband, Raymond Catlett, seeking to recover damages for physical injuries, medical expenses, lost wages, and punitive damages resulting from three alleged intentional torts (assault, battery, and false imprisonment). Raymond answered and counterclaimed for certain possessions he had been awarded in the divorce which he alleged Louise had refused to give him. The jury awarded Louise $10,000 compensatory damages and $20,000 punitive damages, and awarded to Raymond all the possessions sought in his counterclaim. Raymond appeals.

1. Appellant contends the award of punitive damages must be stricken because the jury’s verdict awarding compensatory damages in an amount less than the special medical expenses sought is evidence that the jury found some justification for appellant’s behavior, and is thus inconsistent with the award of punitive damages. We do not agree.

Sufficient evidence was presented to allow the jury to find that aggravating circumstances existed, authorizing the award of punitive damages. See OCGA § 51-12-5. Appellant admitted striking appellee and physically preventing her from leaving his apartment until a neighbor intervened. On another occasion he physically restrained her from leaving his car until a stranger intervened. He testified that he once dragged her down a stairway by her feet because he thought it was “comical.” There was no evidence that appellee was a threat to appellant’s safety.

Appellant’s argument, that because appellee was awarded less in compensatory damages than she requested the jury must have found some justification on his part, is not borne out by the record. Appellant correctly points out that OCGA § 51-1-13 provides that “[a] physical injury done to another shall give a right of action to the injured party, whatever may be the intention of the person causing the injury, unless he is justified under some rule of law. However, intention shall be considered in the assessment of damages,” and “ ‘it is for the jury to determine, in view of the character of the provocation and the nature and extent of the battery, whether [the provocation and intention] amount to a justification or . . . to a mitigation of damages recoverable.’ ” Exposition Cotton Mills v. Crawford, 67 Ga. App. 135, 141 (19 SE2d 835) (1942). However, in the case at bar justification does not emerge as the only possible reason for the jury’s reduction of the compensatory damage award. Evidence was also adduced showing that appellee had a pre-existing back problem, and that after the incidents in issue occurred but before trial she had been in an automobile accident. Further, although the trial court did charge on mitigation of damages and justification, the jury was also instructed they could reduce any recovery in an amount they felt was attributable to appellee’s pre-existing condition, and the jury would have been authorized to reduce appellee’s recovery for that reason. Because appellant did not request that special interrogatories be submitted to the jury to determine the reasoning behind their awards, the record does not reflect the reason for the reduced award of compensatory damages.

“On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.]” Felton v. Mercer, 149 Ga. App. 358, 360 (1) (254 SE2d 398) (1979). “ ‘If ambiguous and susceptible of two constructions, that construction which would uphold the verdict is to be applied.’ [Cits.] Accordingly, the verdict arrives with the presumption of validity, should not be voided unless necessary, and if any ambiguity exists should be so construed — if possible — to uphold the verdict. [Cit.]” Suber v. Fountain, 151 Ga. App. 283, 290-291 (259 SE2d 685) (1979). Because the evidence authorized the jury to reduce the compensatory damages by the amount attributable to her pre-existing condition and also to award punitive damages, we find the jury’s verdict was not inconsistent.

2. “Although the appeal may not be meritorious, damages under OCGA § 5-6-6 are proper only where the enumerations of error are so palpably without merit or specious as to warrant the conclusion that the appeal was taken for delay only. [Cits.] Such damages are never assessed in a doubtful case. [Cit.] Since [appellant’s] arguments here are at least ‘colorable’ ([cit.]), [appellee’s] motion for damages is denied.” Re/Max 100 &c. v. Tri-Continental &c. Corp., 177 Ga. App. 111, 112 (2) (338 SE2d 542) (1985).

Decided October 19, 1989

Rehearing denied November 6, 1989

Adele P. Grubbs, for appellant.

Albert E. Jones, for appellee.

Judgment affirmed.

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


text:
    A89A1950.
    HILL v. THE STATE.
    (387 SE2d 910)
   Sognier, Judge.

Paul Houston Hill was convicted by a jury of armed robbery, motor vehicle theft, kidnapping, false imprisonment, and two counts of aggravated assault. The trial court merged the lesser offenses of theft by taking the vehicle and false imprisonment into the greater charges of armed robbery and kidnapping. Hill appeals.

Construed to support the verdict, the evidence adduced at trial showed that on May 27, 1988, Brazzie Boyd Emmett hijacked a UPS truck in Gainesville at gunpoint and, after taping the driver’s eyes, mouth, and arms, used the truck and impersonated the driver in an attempted armed robbery of a jewelry store in nearby Lula. Appellant, driving his gray Lincoln automobile, had transported Emmett to the UPS truck, and the UPS driver, Terry Swindle, testified that he noticed the gray Lincoln following the truck both before and after the attempted armed robbery. Swindle also testified that at one point Emmett drove the truck to a gravel parking lot, got out of the truck and sat in the Lincoln conversing with its driver, and that he was able to see the car when the truck arrived at the jewelry store. Patrolman John Canupp, of the Hall County Sheriff’s Department, testified that after receiving a lookout on the gray Lincoln, he stopped the car and identified appellant as the driver and Emmett as the passenger. Emmett was tried jointly with appellant, and testified against appellant, implicating appellant in the scheme to take the truck and rob the store.

1. Appellant contends he was denied the right to counsel at a probable cause hearing. The record does not contain the transcript of such hearing, if one was held, nor any indication as to whether appellant was then represented. “ ‘We will not presume error from a silent record. The [appellant] has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. (Cit.)’ [Cit.]” Williams v. State, 188 Ga. App. 496, 499 (3) (373 SE2d 281) (1988).

2. Appellant claims the State withheld potentially exculpatory material, including reports as to ownership of the gun and transcripts of the probable cause hearing, in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). However, appellant’s contention is not supported by the record, in which there is no indication the State was in possession of either gun ownership records or a probable cause hearing transcript. Moreover, the record does indicate that the State served appellant with notice of potential Brady material and that after an in camera review, the trial court found no additional Brady material. Accordingly, there is no merit in this enumeration.

3. The record shows that Emmett was convicted of aggravated assault in connection with the attempt to rob the jewelry store and thus we find no support in the record for appellant’s assertion that it was error to find him guilty of aggravated assault as to the attempt to rob the jewelry store as an aider and abettor because Emmett was not found guilty.

Similarly the record does not support appellant’s contention that Emmett was offered a favorable disposition on drug charges in return for testimony.

4. Although appellant contends he was placed in double jeopardy as a result of his prosecution for both armed robbery and theft by taking the truck, and kidnapping as well as false imprisonment, this argument ignores the fact that although appellant was indeed prosecuted for those crimes and found guilty by the jury, the trial court merged the offenses before sentencing, and he was sentenced only for the greater offenses, thus avoiding a violation of OCGA § 16-1-7.

5. (a) Appellant enumerates error in the denial of his motion for severance, arguing that he was deprived of a fair trial by being tried jointly with Emmett because the jury was repeatedly informed Emmett had pled guilty to these same offenses and thus the jury was unduly influenced to convict appellant. The record reveals that prior to trial, Emmett offered to plead guilty to eight of the nine charges against him. The trial court “made a tentative acceptance” of the plea, but deferred sentencing until after the trial of the remaining count of armed robbery, based on the belief that a merger of some of the counts might result if Emmett was convicted of the remaining count. The case proceeded to trial on January 17,1989, with the court instructing the jury in opening remarks that both defendants were charged with all offenses. The jury found both appellant and Emmett guilty on all counts, and they were sentenced on February 9, 1989, with the trial court finding, indeed, that some of the offenses merged. The record reveals that at several points during the trial, the jury had been informed by Emmett’s counsel that Emmett had pled guilty. However, on February 20, 1989, the trial court entered an order (nunc pro tunc to January 17, 1989) setting aside Emmett’s guilty plea on the ground that it was not knowing and voluntary.

OCGA § 17-8-4 provides, in pertinent part, that “[w]hen indicted for a . . . felony less than capital, . . . such defendants may be tried jointly or separately in the discretion of the trial court.” “Since the grant or denial of a motion to sever is left to the discretion of the trial court, its ruling will be overturned only for an abuse of discretion. [Cits.]” Cain v. State, 235 Ga. 128-129 (218 SE2d 856) (1975). The Cain court set forth three considerations for the court in exercising its discretion as to whether to grant a motion to sever: (1) whether the number of defendants will create confusion of the evidence and law applicable to each individual defendant; (2) whether there is danger that evidence admissible against one defendant but not another will nevertheless be considered against both despite cautionary instructions by the court; and (3) whether the defenses of the individual defendants are antagonistic to each other. If a defendant can show that failure to sever will prejudice him under one or more of these considerations, the motion probably should be granted. Id. at 129.

We can understand appellant’s concern that being tried jointly with a co-defendant whom the jury is told has pled guilty raises questions of “guilt by association,” and we do not hesitate to state our disapproval of this practice. Nevertheless, when the facts sub judice are analyzed in terms of the criteria set forth in Cain, supra, we are constrained to find no abuse of discretion on the part of the trial court in denying appellant’s motion to sever. It is clear that the presence of two defendants did not create confusion as to the evidence and law applicable to each, and all the evidence admissible as to Emmett was admissible as to appellant as well. Although it might be said that the defenses of appellant and Emmett were antagonistic in that appellant claimed no knowledge of the crimes while Emmett admitted them and implicated appellant, “[t]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. [Cit.] A showing of harm is necessary. [Cit.]” Id. at 129.

In the case at bar, we find no showing of harm to appellant because even had he been tried separately, the evidence against appellant would not have differed. Emmett could have testified against him, affording appellant the same opportunity for cross-examination presented in the joint trial, and the jury could properly have learned as well that Emmett had pled guilty. Moreover, we find the evidence against appellant more than sufficient to enable a rational trier of fact to find him guilty of the offenses charged, see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and consequently any violation of appellant’s rights resulting from informing the jury that Emmett had pled guilty would be harmless beyond a reasonable doubt. See Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133) (1977).

(b) Without addressing the intrinsic merit of the argument, we note that appellant may not assert as error in his own appeal the fact that Emmett may have been placed twice in jeopardy by standing trial for the same offenses to which he pled guilty. “ ‘Appellant cannot enumerate error as to another defendant in the case, as no harm to appellant could be caused. . . .’ [Cit.]” Lewis v. State, 188 Ga. App. 205, 206 (3) (372 SE2d 482) (1988).

6. Appellant contends he was denied effective legal representation because his attorney was appointed only two days prior to trial, consulted with appellant for only twenty minutes before trial, and was released by the court before the appeal. However, not only does the record not reflect when appellant’s counsel was appointed, for what reason, or the extent to which counsel consulted with appellant, even assuming that counsel’s performance was deficient, appellant makes no showing that there is a reasonable probability that, but for counsel’s unprofessional performance, the result at trial would have been different. Foote v. State, 188 Ga. App. 304, 305 (372 SE2d 843) (1988). Because appellant has failed to make this showing, we need not address whether counsel’s performance was deficient. Id.

As to representation on appeal, appellant and his wife testified at trial that he lacked motive to commit the armed robberies because they owned a business valued for tax purposes at over $100,000, they had over $20,000 in stocks, and that they had “about three to five thousand dollars cash at our house at all times just for change and so forth.” Based on this testimony, the trial court determined that appellant was not indigent and, after sentence was pronounced, relieved his appointed counsel. “Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel or, in the alternative, to represent themselves. However, it is only indigent defendants for whom the trial court must appoint counsel. For a non-indigent defendant, such as appellant, the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.” (Citations and punctuation omitted.) Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987); see Scott v. State, 151 Ga. App. 840, 841 (2) (262 SE2d 198) (1979). Having elected to proceed on appeal without counsel, appellant cannot now complain. See generally Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988).

7. Appellant contends the trial court erred by failing to grant his motion for a mistrial made after the jury learned during the cross-examination of appellant’s wife by counsel for Emmett that appellant’s counsel was appointed because he was indigent. In denying the motion, the trial court explained (outside the presence of the jury) that the testimony was relevant for impeachment purposes because “the financial wherewithall of [appellant had been made] a rather large issue” by appellant himself, whereas only a week ago he had represented to the court that he had nothing and needed appointed counsel. Competent, relevant evidence is admissible even though it may be prejudicial. See Hale v. State, 188 Ga. App. 524, 526 (2) (373 SE2d 250) (1988). “Questions of relevancy are generally matters within the court’s discretion. [Cit.]” Queen v. State, 182 Ga. App. 794, 796 (2) (357 SE2d 150) (1987). We find no abuse of the trial court’s discretion by admitting this evidence, and consequently find no error in the denial of appellant’s motion for mistrial.

8. Appellant maintains the trial court erred by failing to grant his motion for a mistrial after a juror observed him in the custody of uniformed officers outside the courtroom. The record reveals that a juror walking towards the courthouse did observe appellant and Emmett sitting in a patrol car. “Although a defendant has the right to be free of the ‘atmosphere of partiality’ created by the use of excessive guards or shackles in the courtroom, [cit.], ‘the mere fact of seeing an indicted accused in (custody) — not in the courtroom, as in the instant case, is not grounds for an automatic mistrial, but is addressed to the sound discretion of the trial court. (Cits.)’ [Cit.]” Baxter v. State, 188 Ga. App. 598, 600-601 (373 SE2d 834) (1988). Given that the trial court gave both appellant and Emmett the opportunity to question the jury to determine if any such observation would affect their impartiality and the jurors responded that it would not, we find no abuse of discretion in the denial of appellant’s motion for mistrial. Id.

9. In four separate enumerations, appellant contends the trial court erred in its charge to the jury. We have reviewed carefully the charge given and find no error. As to appellant’s contentions regarding requested charges not given, the record reveals no requests for these charges were made and in the absence of a request these charges were not required to be given. See Birt v. State, 236 Ga. 815, 828 (5) (225 SE2d 248) (1976).

Judgment affirmed.

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

Decided October 12, 1989

Rehearing denied November 6, 1989.

Paul H. Hill, pro se.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.


text:
    A89A1468.
    A89A1469.
    A89A1470.
    AETNA CASUALTY & SURETY COMPANY v. ASBERRY. AETNA CASUALTY & SURETY COMPANY v. CALFEE. AETNA CASUALTY & SURETY COMPANY v. BRANNON.
    (388 SE2d 26)
   Carley, Chief Judge.

Appellant-defendant Aetna Casualty & Surety Company (Aetna) issued an automobile policy to a partnership that was doing business as Chattahoochee Movers. The vehicle covered under the policy was Chattahoochee Movers’ 24-foot truck. Appellee-plaintiff John Bran-non is a partner in Chattahoochee Movers and appellee-plaintiffs Carl Calfee and Sherman Asberry are employees of the partnership. While Brannon was using the insured truck to drive Asberry and Calfee home after work, the truck stalled. Brannon, who had previously rented a Mustang for his personal use, used that vehicle to continue the trip to Asberry’s and Calfee’s homes. While doing so, a collision between the Mustang and another vehicle occurred.

As a result of this collision, Brannon, Asberry, and Calfee filed suits against the driver of the other vehicle. Aetna, in its capacity as the uninsured motorist carrier, was served with copies of the complaints. Aetna filed answers in its own name and thereby became a party to the actions. Subsequently, Aetna filed motions for summary judgment, urging that it provided no insurance on the Mustang and no uninsured motorist coverage for the collision. The trial court denied Aetna’s motions but certified its orders for immediate review. Aetna’s applications for an interlocutory review of the denials of its motions for summary judgment were granted by this court.

1. The relevant language of the uninsured motorist endorsement of Aetna’s policy affords coverage to the occupants of “a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction.” (Emphasis omitted.) At the time of its breakdown, the insured truck was being used by Brannon to convey Asberry and Calfee to their homes and, at the time of the collision, Brannon was using the Mustang to accomplish this interrupted task. However, Aetna urges that, as a matter of law, a Mustang cannot be considered to be a “temporary substitute” for a 24-foot truck;

“The purpose of a ‘substitution’ provision is, of course, to be determined from its own language. But generally, . . . the purpose of a substitution clause is not to narrowly limit or defeat coverage, but to make the coverage reasonably definite as to the vehicle the insured intended normally to use, while at the same time permitting operations to go should the particular vehicle named be temporarily out of commission.” Cotton States Mut. Ins. Co. v. Lee, 119 Ga. App. 293, 294 (1) (166 SE2d 907) (1969). There is no language in the uninsured motorist endorsement of Aétna’s policy requiring that a “temporary substitute” be exactly or even remotely similar in design or model to the covered vehicle. Likewise, there is no language in the endorsement of the policy which would lead a reasonable insured to conclude that a “temporary substitute” must be capable of temporarily fulfilling every possible use or even the primary use to which the insured vehicle would be put. “One of the basic elements of a ‘substitution’ provision is that the auto claimed to be covered is actually used as a ‘substitute’ for the described automobile, and it is necessary that there be at least a reasonable similarity between the use made of the original car and the allegedly substituted car. Thus it must be shown that . . . the described vehicle would have been used for the trip on which the accident occurred. A substitute automobile within the meaning of the substitute automobile policy clause is one actually, but only temporarily, used in place of the specified automobile. That is, for the same use the insured car would have been used except for its withdrawal from all normal use because of its breakdown, repair, servicing, loss, or destruction.” (Emphasis supplied.) 12 Couch on Insurance 2d (Rev. ed.), § 45:232, p. 528 (1981).

There was more than a mere “reasonable similarity” between Brannon’s original use of the insured truck and his subsequent use of the Mustang. There was a total identity as between those uses. But for the mechanical failure of the insured truck, Brannon would have been using that vehicle at the time of the collision for the purpose of conveying Asberry and Calfee to their homes. Thus, at the time of the collision, the Mustang was actually, but only temporarily, being used by Brannon as a substitute for the disabled insured truck. Under these circumstances and the language of the. uninsured motorist endorsement of Aetna’s policy, the trial court did not err in failing to hold that, as a matter of law, the Mustang could not be found to be a “temporary substitute” for the insured truck.

2. Aetna’s policy contains a general endorsement which provides that “[t] his insurance does not apply to an auto owned by any of [Chattahoochee Movers’] partners or members of their households.” (Emphasis omitted.) Relying upon this provision, Aetna urges that, even if a Mustang can otherwise be found to be a “temporary substitute” for a 24-foot truck, this particular Mustang, which had been rented by Brannon for his own personal use, nevertheless cannot qualify for consideration as a “temporary substitute.”

Decided November 6, 1989.

Long, Weinberg, Ansley & Wheeler, Barry S. Mittenthal, Stephanie F. Goff, for appellant.

James E. Thompson, Rowe & McGarity, William P. Rowe III, Mozley, Finlayson & Loggins, D. Keith Calhoun, for appellees.

We need not decide whether the cited language would constitute an unenforceable exclusion of such uninsured motorist coverage as is required to be provided in an automobile policy issued in this State. See generally Doe v. Rampley, 256 Ga. 575 (351 SE2d 205) (1987). Even assuming the underlying enforceability of the exclusion, it nevertheless has no applicability under the facts of this case. The provision purports to exclude coverage for any vehicle “owned” by the partners of Chattahoochee Movers. The Mustang was not “owned” by Brannon. It was leased by him. The provision does not purport to exclude coverage under the policy for any vehicle “leased” by the partners of Chattahoochee Movers. “Any exclusion sought to be invoked by the insurer . . . will be liberally construed in favor of the insured and strictly construed against the insurer unless same is clear and unequivocal. [Cits.]” Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438, 441 (287 SE2d 226) (1981).

As discussed in Division 1, uninsured motorist coverage under Aetna’s policy would otherwise be afforded to Brannon, Asberry and Calfee in their capacities as the occupants of a rental Mustang which was being used at the time of the collision as a temporary substitute for the insured truck. The existence of that uninsured motorist coverage would in no way be vitiated by a general exclusion for vehicles “owned” by partners of Chattahoochee Movers.

Judgments affirmed.

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


text:
    A89A1531.
    FLANAGAN v. THE STATE.
    (388 SE2d 29)
   Pope, Judge.

Defendant Edward F. Flanagan was indicted for the offenses of aggravated assault (counts one and two) and aggravated battery (count three). The jury returned a verdict finding defendant guilty of aggravated assault on count one, simple battery on count two and aggravated battery on count three. The trial court, after merging counts two and three with count one, sentenced defendant to serve twenty years. Defendant now appeals from the denial of his motion for new trial. We affirm.

1. Relying on Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987), defendant first contends that the admission into evidence of a ten-year-old mug shot from a previous arrest and conviction impermissibly placed his character in evidence. We find no merit to this contention. In Roundtree, the photograph was introduced bearing the place and date of defendant’s prior arrest. In contrast, the trial court in the case at bar ordered that the caption be severed from the mug shot prior to its admission into evidence. Consequently, this enumeration provides no basis for reversal.

2. Defendant also challenges the admission into evidence of a 1980 conviction for aggravated assault. “ ‘Evidence of other similar crimes by a defendant is admissible if there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Such evidence may be admitted to show state of mind or intent of a defendant. . . .’ (Citations and punctuation omitted.) Sparks v. State, 172 Ga. App. 891, 892-893 (324 SE2d 824) (1984).” Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989).

We find no merit to defendant’s assertion that the prior offense “bears little resemblance to the charges in the instant case.” In both instances the victim was brutally attacked by the defendant after leaving a bar alone late at night. In both instances the victim had opened her car door, seated herself in the car, and put the keys in the ignition when defendant attacked her. In both cases the attack took place in the front seat of the victim’s car. In the first incident defendant forced the victim to commit oral sodomy on him. During the second incident, he held the victims’ legs over her head and rubbed his genitals on her “bottom.” Defendant hit the victim of the first offense in the face. He kicked and bit the victim of the present offense. Both victims had their clothes ripped and torn by the defendant. Both victims were able to escape from the attack by jumping out the passenger door of their car and both suffered physical injuries requiring medical attention as a result of the attack. The victim of the present attack recalled seeing the defendant in the bar prior to the attack, and she accepted a drink he purchased and had the bartender bring over to her, but she denied knowing the defendant or leaving with him on the night of the incident. The victim of the previous attack also testified that she did not know the defendant, but she could not say if he had been in the bar prior to the attack because there were approximately four hundred people in the bar on that night.

Decided November 6, 1989.

James Archie, for appellant.

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Eleni A. Pryles, Assistant District Attorneys, for appellee.

“In the case before us, we have no hesitancy whatever in holding that the two transactions were sufficiently similar to render evidence of the earlier transaction admissible for the purpose of illustrating the [defendant’s] motive, plan, scheme, bent of mind, and course of conduct. [Cits.]” McGuire v. State, 188 Ga. App. 891 (1) (374 SE2d 816) (1988). See also Tucker v. State, supra; Milner v. State, 180 Ga. App. 97 (2 b & c) (348 SE2d 509) (1986). This enumeration is without merit.

Judgment affirmed.

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


author: Birdsong, Judge. Benham, Judge,

text:
    A89A1545.
    GALBREATH v. THE STATE.
    (387 SE2d 915)
   Birdsong, Judge.

Appellant Albert Monroe Galbreath appeals his sentence and conviction of one count of making and delivering a $4,000 bad check.

Appellant negotiated the purchase of a 1988 Porsche automobile. On November 18, 1987, appellant’s loan application was approved for bank financing, but only for the invoice value of the car. Appellant was notified that he would be required to make a sizeable downpayment in order to finalize the purchase transaction.

At trial the business manager of the automobile dealership testified as follows: Appellant was notified at about 1:00 or 2:00 p.m. on November 18 that his loan had been approved, but that he needed to bring a cashier’s check in the amount of $6,000 to the dealership as a downpayment. Appellant did not arrive at the dealership that evening until after normal banking hours between approximately 5:00 or 5:30 p.m. After signing all necessary transaction documents, including the installment contract, appellant was asked for the cashier’s check, but he did not have it. Appellant expressly informed the business manager that he had $4,000 of the money in a bank account, and upon being paid a week from the coming Friday he would have the remainder. Appellant and the business manager agreed that appellant could tender two checks in the amounts of $4,000 and $2,000, respectively. The business manager, after consultation with the dealership’s sales manager, further agreed that the bank would hold the check for $2,000 until November 27. The dealership as a general policy never accepts postdated checks; customers are asked to date checks to be held as of the date of tender. The $2,000 check was postdated “11/27/87” by appellant, and the $4,000 check was postdated “11/19/ 87.” The business manager previously had asked appellant to date both checks as of the date of tender, November 18. She was unaware that appellant had postdated the checks, and stated “[o]bviously that slipped by me.” Appellant represented to her that the $4,000 check was good; at no time did she represent to appellant in any way either that he could postdate the $4,000 check or that she would hold it for him. Appellant accepted delivery of the automobile that evening. The business manager would not have accepted the $4,000 check and given appellant possession of the car if he had told her the check for $4,000 was not good when tendered. On November 19, the next day, appellant’s $4,000 check was taken to the dealership’s bank for deposit; the check twice was presented for payment and each time returned for nonsufficient funds. Subsequently, the $2,000 check was returned for nonsufficient funds after it was presented on November 27. The business manager attempted to contact appellant at home, but his phone was disconnected; when the business number given by appellant was called, the business manager was informed appellant did not work there. On his credit application, appellant listed himself as a “supervisor” with Atlanta Boring & Tunneling; he never asked the business manager to put on the application that he was self-employed. Attempts to reach appellant through his parents’ home and his mother’s place of employment were to no avail. A certified letter of notification that the two checks had been dishonored was returned as “unclaimed.” A letter of notification sent to the employment address on appellant’s credit application was returned with the notation, “[e]mployee does not work here anymore.” Appellant has never made either check good. The car was repossessed several months later; it had some body damage that was repaired, and approximately 15,000 miles on the odometer. The car had 40 miles on the odometer when delivered to appellant. Appellant never told the business manager that he would honor the checks if the car title was accurately corrected.

Appellant testified that he had told the business manager that he did not have the $6,000, but that he would be getting paid. He requested and she agreed to hold his two checks. The $4,000 check was to be held until Friday, November 20, and the $2,000 check was to be held until Friday, November 27. He could have paid the checks from other bank accounts, but a dispute arose over the wording of the title when the bank refused to add the word “Jr.” to the name thereon. He never was notified that a certified letter was waiting for him at the post office. However, appellant made a judicial admission that when he tendered the two checks, “[he] knew that [he] didn’t have the money then.” Appellant’s testimony, that he told the business manager that he was postdating both checks and that she agreed to hold them for him, was corroborated by his ex-fiancee. Held:

Appellant’s sole enumeration of error is that the trial court erred in denying his motion for directed verdict of acquittal. Primarily, appellant asserts that under the precedent of Bivens v. State, 153 Ga. App. 631 (266 SE2d 304), he cannot be found guilty of violating OCGA § 16-9-20, because the $4,000 check was postdated, and thus the State cannot establish as a matter of law that appellant had the present fraudulent intent necessary at the time the check was tendered.

In Neidlinger v. State, 17 Ga. App. 811 (2) (88 SE 687), this court, in construing the bad check act of 1914, concluded that “[t]he statute was not intended to cover a [postdated] check accepted by the payee with distinct knowledge that the paper constitutes nothing more than a promise that, on the future date specified as the day of payment, the drawer will have in the bank the funds necessary to meet the check.” (Emphasis supplied.) The court further observed, that “[i]n drawing a [postdated] check there is an implication either that there is no present consideration (as where a trade is not to be finally consummated until the day named in the check), or an implication that payment is postponed because the drawer has not, at the time the check is drawn, sufficient funds to meet it. In either event the check is merely a promise to pay in the future. One who knowingly takes a [postdated] check, under the circumstances ... in this case, and exchanges an article of value therefor, makes the exchange not upon his faith that the drawer has at the time sufficient funds to meet the check, but upon his willingness to risk the ability of the drawer to make a deposit and to have in bank, on or after the date mentioned in the check, sufficient funds with which to comply with his obligation.” (Emphasis supplied.) Id. at 815.

The case before us clearly is distinguishable from the facts in Neidlinger. First, appellant took delivery of the automobile on the same day as he tendered the postdated check, thus there existed present consideration. Secondly, the implication inherent in a postdated check, that the drawer currently has insufficient funds to cover the amount in the draft, was directly contradicted by appellant’s express assertions to the business manager that he had $4,000 currently in the bank and that the $4,000 was good. Further, continuing to construe the evidence to support the verdict as we are required to do on appeal, we find that unlike the Neidlinger circumstances, the dealership and its agent did not knowingly accept a postdated $4,000 check from appellant.

In Strickland v. State, 27 Ga. App. 772 (110 SE 39), in construing the bad check act of 1919, this court followed the precedent of Neidlinger. The facts in Strickland, show that the payee was fully apprised that the tendered check was postdated. Id. The court opined that “ ‘[t]he statute was not intended to cover a [postdated] check accepted by the payee with distinct knowledge that the paper constitutes nothing more than a promise that, on the future date specified as the day of payment, the drawer will have in the bank the funds necessary to meet the check.’ ” (Emphasis supplied.) Id. at 773. Moreover, this court interpreted the requirements of the 1919 act as being consistent with its holding in Neidlinger, “that one cannot be criminally liable for giving a worthless [postdated] check, for [the act’s] provisions as to checks or other papers therein mentioned are confined to such papers as are accepted with knowledge ‘at the time of such making, drawing, uttering or delivery, that the maker or drawer has not sufficient funds in or credit with such bank ... for the payment of such check.’ ” (Emphasis supplied.) Id. at 773. In White v. State, 27 Ga. App. 774 (110 SE 40), this court followed the precedent of Strickland in a situation where the postdated check was drawn at the payee’s request. The court in White expressly noted that “[a]t the time [appellant] drew the check, he stated to the payee that he had no funds in the bank at the time, but hoped to have such funds by the maturity of the check.” Id. The facts of this case clearly are distinguishable from both Strickland and White, as the payee’s agent testified she did not knowingly accept a postdated check, that appellant expressly told her the check was good, and that appellant told her that he then had $4,000 in the bank.

In Highsmith v. State, 38 Ga. App. 192 (143 SE 445), the facts show that the payee “agreed with the defendant to hold the check for two weeks before presenting it to the bank” and that the defendant never told the payee that he had no money in the bank with which to pay the check. Id. at 193. This court held that the gravamen of a bad check offense under the act of 1919 “is the ‘intent to defraud’ [Cit.]; and since the [payee] testified that he accepted the check under an agreement that he would not collect it for two weeks, the transaction was nothing more nor less than an extension of credit . . . and a promise by the defendant to pay ... at a future date.” Id. at 194. Accordingly, the court in Highsmith found that Neidlinger and Strickland precedents controlling. Id. Likewise, the facts of this case substantially differ from the facts in Highsmith. The business manager in this case testified that she only agreed to hold the $2,000 check, and that she asked appellant to date the $4,000 check as of the day of tender. She further testified that she did not represent to appellant in any manner that it would be acceptable for him to postdate the $4,000 check or that she would hold it for him. Subsequently, the business manager gave appellant two receipts; a receipt for the $4,000 check dated November 18, the day of tender, and a receipt for the $2,000 check dated November 27, the date on which that check was to be deposited in the dealership’s bank account. The $4,000 check was deposited on November 19, because the dealership did not make “night deposits.” The manner in which these receipts were dated tends to corroborate the business manager’s testimony that she did not knowingly accept the $4,000 check as postdated. Thus in view of the difference in facts, the precedent of Highsmith is not controlling in this case.

In Bivens v. State, supra, this court followed the precedent in Neidlinger and Highsmith in a case involving a bad check prosecution under Code Ann. § 26-1704 (a) (now basically codified as OCGA § 16-9-20 (a)). The facts in Bivens establish that appellant gave an attorney five checks. The checks were to be negotiated by the attorney, one at the end of the month and the remaining four individually at the end of the succeeding four months, but only for services rendered. The second check to be negotiated was returned for insufficient funds. Citing Highsmith and Neidlinger, we concluded that “[a]t best, there is implied in the issuance of the checks a promise to cover the drafts when they were presented in the future. Such a promise of future performance cannot serve as a basis for a bad check charge.” (Emphasis supplied.) Id. at 632. We further stated that “if a check is postdated, or if the giver of the check states that he has not enough money in the bank to cover it though he expects to have it by the time the check is presented for payment, there can be no implied representation that there is now enough on deposit to cover the check. In short the [S]tate did not prove by implication or otherwise that [appellant] issued checks . . . with a present fraudulent intent of deceiving [payee] at the time of issuance by not intending to have funds in the bank sufficient to meet the checks upon presentment.” Id. at 632.

Clearly Bivens is not controlling here. Unlike Bivens, the facts in this case include the testimony of the business manager that she did not knowingly accept the $4,000 check as a postdated check, that appellant expressly stated he currently had $4,000 in his account and that the check was good, and that she did not agree to hold the check for future deposit. In this case, evidence was presented to the jury of an express representation that there now was enough money on deposit to cover the $4,000 check. Thus at the time of check issuance, the State did not have to rely upon the proof of present fraudulent intent to deceive from the face of the instrument itself. Moreover, in view of its reliance on the precedent of Highsmith and Neidlinger, it is clear that Bivens does not stand for the principle that mere unknowing acceptance of a postdated check will per se preclude the State from proving by other means that the check was tendered with the requisite present fraudulent intent. Compare Bivens, supra, with Strickland, supra, and Neidlinger, supra.

“It has been held that a worthless check statute is not violated by the making or delivering of a postdated check if the payee accepts it knowing that it is postdated and there is no other misrepresentation that the check is good or that the maker has sufficient money in his account. But where one knowingly and intentionally issues a postdated check in the regular course of business without having sufficient funds in or credit with the bank for the payment on presentation thereof, and without calling to the attention of the payee the fact that the check is postdated or arranging with the payee to hold the check, the maker of the check is guilty of the crime denounced by the worthless check statute.” (Emphasis supplied.) 32 AmJur2d 296, False Pretenses, § 86; compare State v. Ramsbottom, 402 P2d 384 (Idaho) and People v. Lane, 300 P2d 321 (DCA Calif.). We find these principles can be applied to bad check offenses prosecuted under the authority of OCGA § 16-9-20 (a). Moreover, we decline to construe Neidlinger and its progeny as requiring a different result.

Notwithstanding any contrary implication contained in the special concurrence, we do find that the State must prove a present fraudulent intent on the part of any maker of a postdated check in order to sustain a conviction for a bad check offense under Georgia law. Clearly, such a present fraudulent intent may be inferred by the factfinder when the maker knowingly and intentionally issues a postdated check in the regular course of business without having sufficient funds to cover the check when presented for payment, and when the maker does not call attention to the payee of the fact that the check is postdated or arrange for the payee to hold the check until some future time. Adoption of this rule does no more than allow the true nature of a criminal transaction to be proven in these appropriate circumstances, in spite of the fact that the check used to facilitate the commission of the offense bears a date in futuro. Considering the commonly and widely known serious rise in the number of bad check offenses within this state, the legal interpretation expressed in this opinion is overdue. Whether future legislation should be enacted to more strictly circumscribe the fraudulent passing of bad checks, by the convenient vehicle of “postdating,” to unsuspecting innocent recipients in this state is a matter warranting careful consideration.

“[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). Considering the posture of all the evidence in this case, Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743), and the legal principles above discussed, we are satisfied that the trial court did not err in denying appellant’s motion for directed verdict of acquittal. The conflicting evidence in this case warranted jury resolution.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

Although I agree with the majority that appellant’s conviction must be affirmed, I cannot agree with the legal analysis employed to reach that result or with the need to import into Georgia law the broad statements of law quoted by the majority from AmJur2d.

“Statutes imposing criminal liability are to be construed strictly; and although there is not, in the Act of 1914 [Acts 1914, p. 86; Park’s Annotated Code, Vol. 6, § 718 (d)] an express statement that its provisions as to the drawing and uttering of checks and other papers therein mentioned are confined to and refer only to such papers as are drawn or uttered with intent to defraud, it is plain that such fraudulent intent must exist and be operative before the drawing or uttering of the papers named in the statute would be criminal. The concept of a fraudulent intent must be read into the statute; otherwise the law would contravene the general provision that, to constitute crime, intent must concur with the act. [Cit.] . . . [T]he act would be in effect nothing more than a means of enforcing promises and other civil obligations, and of collecting debts by the process of the criminal law; which is utterly abhorrent to public policy as announced by the courts and as embodied in the constitution of our State. [Cit.]” Neidlinger v. State, 17 Ga. App. 811, 814 (88 SE 687) (1916).

The requirement of an intent to defraud before criminal sanctions attach has its basis in the constitutional provision prohibiting imprisonment for debts. Ga. Const. 1976, Art. I, Sec. I, Par. XX (see new Ga. Const. 1983, Art. I, Sec. I, Par. XXIII; Cobb v. State, 246 Ga. 567 (272 SE2d 299) (1980).

The majority cites cases from foreign jurisdictions authorizing conviction for postdated checks. However, I must point out that some states specifically prevent prosecution for postdated checks. State v. Downing, 488 P2d 112 (NMCA 1971); State v. Beard, 416 P2d 783, (Kan. SC 1966). The overriding consideration in determining if the law has been violated is whether there was a present intent to defraud. Berry v. State, 153 Ga. 169 (111 SE 669) (1922); Brooks v. State, 146 Ga. App. 626 (247 SE2d 209) (1978); Crain v. State, 78 Ga. App. 806 (52 SE2d 577) (1949); Barnes v. Gossett Oil Co., 56 Ga. App. 220 (192 SE 254) (1937).

Rather than import foreign law, we can rely on present Georgia law to punish criminally fraudulent check transactions. The Georgia cases cited by the majority make it clear that the effect of postdating a check is to destroy the implied promise that there is currently money on deposit to cover a check tendered for a present consideration. Where there is nothing but the implied promise on which to rely to show fraudulent intent, a postdated check will prevent conviction. “[A]t best, there is implied in the issuance of the checks a promise to cover the drafts when they were presented in the future. Such a promise of future performance cannot serve as a basis for a bad check charge. [Cit.] . . . [I]f a check is postdated, or if the giver of the check states that he has not enough money in the bank to cover it though he expects to have it by the time the check is presented for payment, there can be no implied representation that there is now enough on deposit to cover the check.” Bivens v. State, 153 Ga. App. 631, 632 (266 SE2d 304) (1980). In the present case, however, as the majority correctly points out, there was more than that implication: there was evidence that appellant expressly represented that there were sufficient funds to cover the $4,000 check at the time of its tender, and there was evidence that appellant’s account did not have $4,000 in it at the time the check was tendered. Thus, there was sufficient evidence to show that appellant had a fraudulent intent when he tendered the check.

Decided November 6, 1989.

Charles J. Vrono, for appellant.

Robert E. Wilson, District Attorney, Michael D. Thorpe, Robert M. Coker, Assistant District Attorneys, for appellee.

Finally, the majority’s heavy emphasis on the requirement that the payor of the check specifically make known to the payee that the check is postdated is an extension of Georgia law and one which inappropriately relieves the payee of its responsibility to exercise reasonable caution in commercial transactions. Under present Georgia law, the burden is placed on the receiver of a check to examine it, especially the date, to determine if it meets the requirement of the law. To do otherwise would be to open the floodgates for testimony to contradict the written instrument. While the majority approach has appeal in this case, it unfortunately provides us a blurred vision for the future. Each of the cases decided under the bad check law displays a commendable concern for drawing a line between criminality and civil wrongs. This common sense approach gives the law a sense of definition and direction.

For the reasons stated, I concur in the affirmance of appellant’s conviction, but not with the majority’s efforts to change the law in this area.


text:
    A89A1780.
    THOMPSON et al. v. PATE et al.
    (388 SE2d 30)
   Sognier, Judge.

Arthur and Linda Thompson brought suit in several counts against Interstate Fire Insurance Company and its agent, Eugene Pate, seeking to recover the proceeds of a fire insurance policy on their residence, as well as punitive damages for alleged fraud. The trial court granted Pate and Interstate’s motion for summary judgment, and the Thompsons appeal.

The record reveals that on July 23,1987, appellants completed an application for fire insurance with Interstate covering appellants’ residence. Appellants aver that Pate represented to appellant Arthur Thompson that the residence would be covered immediately. Pate denies having made this representation, and avers he merely took the completed application, without collecting a premium, and forwarded it to Interstate the next day for processing in the usual manner. Both Pate and Interstate aver in affidavits that Pate was the agent of Interstate, but was not authorized to bind the company. Appellants’ home burned on August 22, 1987. The application was processed and approved in the usual manner, and a policy was issued with an effective date of September 1, 1987. Interstate denied the claim made by appellants.

Appellants contend the trial court erred by granting summary judgment in favor of appellees because genuine issues of material fact exist concerning whether a misrepresentation was made by Pate and whether Pate was negligent. We agree with appellants that an issue of fact exists as to whether Pate misrepresented to them that they would be covered immediately. However, we cannot agree that this issue is material.

(a) As to appellants’ contract claim, Interstate’s averment that Pate was without authority to bind it is uncontroverted. Moreover, “[t]he general rule is that an application for insurance . . . creates no binding contract of insurance until the insurer manifests its acceptance. [Cits.]” Atkinson v. American &c. Ins. Co., 165 Ga. App. 102, 103 (1) (299 SE2d 600) (1983). In the case sub judice, the policy itself, as well as appellees’ unrebutted affidavits, establishes conclusively that Interstate’s acceptance of the obligation of insuring appellants’ residence was made subject, to the condition that coverage begin on September 1, 1987. Accordingly, we agree with the trial court that no contract of insurance existed on the date of appellants’ loss. See id. at 103-104 (1).

(b) As to appellants’ tort claim, “[ajbsent actionable fraud and deceit, ... it appears settled that there is no liability in tort for failure of the defendant insurance agent or broker to procure or have renewed a policy of insurance where the defendant is the insurance company’s agent and not the plaintiffs agent. [Cits.]” Sutker v. Penn. Ins. Co., 115 Ga. App. 648, 653 (155 SE2d 694) (1967). It is clear in this case, and admitted by appellants, that Pate was Interstate’s agent, and thus, unless actual fraud has been shown, appellants’ tort claim must also fail. See id. at 653-654. Beavers Ins. Agency v. Roland, 135 Ga. App. 263 (217 SE2d 484) (1975), cited by appellants, is distinguishable on its facts, as it involved an insurance agent who was the agent of the insured.

Decided November 6, 1989.

Coleman, Kitchens, Wolfson & Smith, James R. Smith, Jr., for appellants.

William A. Turner, Jr., for appellees.

(c) We find no actionable fraud and deceit here because, even assuming, arguendo, that Pate did tell appellants they would be covered immediately, any such representation was belied by Pate’s statement that he had no authority to bind Interstate, which appellants freely admit he made; by the fact that the portion of the application containing a “binding receipt” was deliberately left blank; and by the language in the application stating that a policy “may be granted” by Interstate in response to the application, which should have alerted appellants to the fact that Interstate’s approval was necessary, and that a policy might not be issued. Faced with all these indications that they were not immediately covered, we find that any reliance by appellants on Pate’s alleged statement to the contrary was not reasonable. “Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence.” (Citations and punctuation omitted.) Godwin v. City of Bainbridge, 172 Ga. App. 290, 292 (2) (322 SE2d 733) (1984).

Having found no fraud and deceit present, we hold that appellants may not assert a claim in tort for failure to procure immediate coverage, see Sutker, supra, and consequently the trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

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


text:
    A89A1815.
    THOMAS v. THE STATE.
    (388 SE2d 32)
   Sognier, Judge.

Michael William Thomas was convicted of two counts of theft by taking and one count of possession of tools for the commission of a crime, and he brings this appeal, contending the trial court erred by denying his motion for a new trial because the evidence was insufficient to support the verdict.

At trial, Leon Johnson, the owner and operator of a Mercedes-Benz parts business in Douglasville, identified appellant as the person who sold him the hard tops of two Mercedes-Benz automobiles. Johnson testified that he paid for these by check, and the payee on both checks was appellant. Both Ian Lloyd-Jones, the victim in Count I, and Dale Tietz, the victim in Count II, testified that the hard tops of their Mercedes-Benz automobiles were stolen while the vehicles were parked at Hartsfield Airport, and both victims positively identified their hard tops at Johnson’s business. Johnson’s testimony established that the hard tops had been sold at almost exactly the times the victims reported the items stolen. Detective George Crawford of the Atlanta Police Department testified that he obtained from Johnson appellant’s telephone number and a description of the pickup truck driven by appellant, and traced the telephone number to a street address in Griffin, where he observed a pickup truck fitting the description given by Johnson. Charles Bailey, an elevator company employee on assignment at the airport, testified he observed a similar pickup truck leaving the airport parking lot on December 31, 1987, at the time Lloyd-Jones’ vehicle was parked there. The truck caught Bailey’s attention because it was moving rapidly and he had to maneuver his own vehicle to avoid hitting it. As the truck traveled past him, a sleeping bag blew out of the bed of the truck and exposed a Mercedes-Benz hard top. The truck bypassed the exit ramp leading to the toll booths and exited the parking lot through a temporary entrance. Bailey called the police.

On January 16, 1988, based on his investigation to that date, Crawford placed a lookout for the pickup truck with the Atlanta police. Atlanta Police Officer Bradford testified that on that date he was on uniform duty at the airport, and about 2:15 a.m. he observed a pickup truck fitting the general description in the lookout. After watching it briefly, he stopped the truck and asked the driver for identification. The driver, later identified as appellant, said his name was Michael William Thomas but could not produce a driver’s license or any identification. Appellant was then arrested, and an inventory search of the truck revealed tools which Johnson, as well as the victims, later identified as those routinely used to remove Mercedes-Benz hard tops. Appellant admitted to Crawford that he sold the hard tops to Johnson, but said he had received them from a person named “Jim.” Appellant could not give Jim’s last name, address, or telephone number. The defense presented no evidence at trial.

Appellant specifically points out that Bailey could not positively identify the vehicle he saw at the airport as the one identified at trial as appellant’s. However, Bradford positively identified appellant as the driver of the pickup truck he stopped, and appellant admitted to Crawford that he was the sole driver of that vehicle. Although appellant told Crawford he was at the airport to pick up a relative, the evidence at trial disclosed that no such person was scheduled to arrive. Appellant’s recent possession of the hard tops was perhaps insufficient by itself to support a conviction. See Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). However, combined with the other evidence adduced at trial, including appellant’s possession of tools specifically designed for removing Mercedes-Benz hard tops and his unexplained presence at the airport at 2:15 a.m., it was sufficient to enable a rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Rogers v. State, 185 Ga. App. 211-213 (1) (363 SE2d 846) (1987). Accordingly, as the evidence was sufficient to support the verdict, the trial court did not err by denying appellant’s motion for a new trial.

Decided November 6, 1989.

Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Lisa A. Curia, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A1918.
    HUSH v. THE STATE.
    (387 SE2d 651)
   Sognier, Judge.

George Hush appeals from his conviction of trafficking in cocaine.

The evidence adduced at trial would have authorized the jury to find the following facts. Walter Dale Martin had been purchasing cocaine from appellant and his wife, Kathy Hush, for approximately seven or eight months when he was arrested in Bartow County on August 17, 1988, and charged with possession of cocaine with intent to distribute. Martin agreed to work with Investigator Michael D. Shinall of the Bartow County Sheriffs Office to see if he could purchase cocaine from the Hushes in Bartow County. Under the supervision of Shinall, Martin attempted to contact the Hushes several times on August 17th and 18th, but did not reach anyone until August 19th. On that date, he spoke with Kathy Hush, twice. In the first telephone call, Martin ordered an ounce of cocaine. In the second telephone call, Kathy Hush informed Martin that appellant would be making the delivery and put appellant on the telephone to give Martin directions to the location in Bartow County where they would meet. In his testimony, appellant corroborated the fact that he spoke with Martin only to give him directions. At approximately 9:00 p.m. that evening, Martin arrived at the prearranged location with Shinall. Shinall testified that Martin was in custody, and he and his clothing had been searched to make sure he was not carrying any drugs. Appellant arrived shortly thereafter and was arrested in possession of a black bag containing what was later identified as 28 grams of at least 95 percent pure cocaine.

1. Appellant raises the general grounds in two enumerations of error, but fails to support these enumerations with argument or citation of authority. Accordingly, these enumerations are deemed abandoned under Rule 15 (c) (2) of this court. Motes v. State, 189 Ga. App. 430 (1) (375 SE2d 893) (1988).

2. Appellant contends the trial court erred by refusing to give his requested charges regarding entrapment, which was his sole defense, because he testified that he had “never sold any drugs before in my life to anybody” and because the idea for the “controlled buy” in issue here originated with Shinall. We do not agree.

“In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]” Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). The evidence, including appellant’s testimony, shows that Shinall never spoke to him, much less persuaded him to sell drugs, and that Martin spoke to him only to give him directions to the location of the “buy,” which cannot be considered undue influence. Moreover, Martin testified that he had bought cocaine from appellant on two previous occasions, and appellant’s bare statement that he had never sold drugs before was insufficient to establish that he was not predisposed to commit the crime. See generally Gray v. State, 191 Ga. App. 135, 136 (381 SE2d 312) (1989). “Appellant’s testimony does not show he was induced, by undue persuasion, or deceitful means, in an overall design of law enforcement people, to do what he otherwise had no predisposition to do and would not have done. [Cits.] Appellant’s testimony falls short of evincing those circumstances which have been found to raise the entrapment defense. [Cits.]” Jones v. State, 154 Ga. App. 21, 25 (2) (267 SE2d 323) (1980). It is not error for the trial court to refuse to charge on entrapment when there is no evidence establishing such defense. Busener v. State, 188 Ga. App. 392, 394 (373 SE2d 81) (1988). Nor does the fact that entrapment was the only defense raised by appellant require a different result. “Where there is no evidence to support a theory of [entrapment], it is no more ‘raised’ than any other defense not supported by evidence.” Conner v. State, 251 Ga. 113, 115 (2) (a) (303 SE2d 266) (1983).

Decided November 6, 1989.

Greene & Greene, Barry B. Greene, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

3. Appellant also contends the trial court erred by denying his motion for a mistrial made after the prosecutor commented on appellant’s wife’s failure to testify. Kathy Hush had elected to invoke her privilege not to testify pursuant to OCGA § 24-9-23, and the prosecutor was notified of her election prior to trial. On direct examination, appellant was asked whether he knew how his wife had met Martin. Appellant began his answer but the prosecutor interrupted and objected, saying “[o]f course, Your Honor, this is hearsay ... if this is hearsay, I want to hear from Mrs. Hush. If you’re listening to hearsay, I don’t want to hear any hearsay, you put Mrs. Hush up here.” Appellant moved for a mistrial, which the trial court denied. The trial court did, however, instruct the jury that “the Defendant doesn’t have to offer any evidence whatsoever. The State always has the burden of proving the Defendant guilty beyond a reasonable doubt,” whereupon the motion for a mistrial was renewed and denied.

While we agree with appellant that the comment was improper, see James v. State, 223 Ga. 677, 682-684 (5) (157 SE2d 471) (1967); Westbrook v. State, 162 Ga. App. 130 (1) (290 SE2d 333) (1982), and the curative instruction given by the trial court was meager, nevertheless, the grant or denial of a mistrial is within the sound discretion of the trial court. See Wilkerson v. State, 183 Ga. App. 26, 27 (1) (357 SE2d 814) (1987). “In the absence of a demonstration that a mistrial was essential to preservation of appellant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial, even in the absence of curative instructions. [Cit.] Under the circumstances of this case, including the overwhelming evidence of appellant’s guilt, we find no abuse of discretion.” Little v. State, 178 Ga. App. 268, 270 (342 SE2d 712) (1986).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A2064.
    COKER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (388 SE2d 34)
   Deen, Presiding Judge.

On December 2, 1986, Sheila Coker was involved in an automobile collision with a Daniel Blanchfield. When Coker commenced this action and could not locate Blanchfield for service, Coker served the appellee as uninsured motorist carrier. When the matter went to trial, the trial court granted the appellee’s motion to strike Coker’s claim for punitive damages, and the jury awarded Coker only $1,019.90 damages; this appeal by Coker followed. Held:

1. Coker alleged that Blanchfield was driving under the influence at the time of the collision, and sought punitive damages for that reason. The trial court struck that claim, for the policy stated in State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986). In Kuharik, this court held that the uninsured motorist carrier could not be held liable to its policyholder for punitive damages, where the tortfeasor was unknown, because it would be nonsensical to impose punitive damages against an unknown tortfeasor for the purpose of deterring him from repeating the alleged misconduct.

The instant case involves a known tortfeasor whose whereabouts are unknown, and over whom the trial court had not acquired jurisdiction. This court has previously equated a known tortfeasor whose whereabouts are unknown with an unknown tortfeasor. Norman v. Daniels, 142 Ga. App. 456 (1) (236 SE2d 121) (1977). It follows that the trial court properly applied Kuharik in striking Coker’s claim for punitive damages.

Coker’s contention that her claim for punitive damages could also encompass additional damages for wounded feelings under OCGA § 51-12-5 is unpersuasive. The only reasonable purpose for imposing exemplary damages in this case would be to punish or deter the offender, not to soothe any wounded feelings of the plaintiff.

2. Coker contends that the jury’s verdict awarding her only $1,019.90, the undisputed amount of her medical expenses and lost wages, and omitting any damages for pain and suffering, was so inadequate as to indicate gross mistake or undue bias on the part of the jury. Coker missed only four days of work because of a back and foot strain caused by the collision. She testified that she experienced some pain in her foot for several months after the collision, but that her injuries had all healed; she also claimed still to experience some back pain, but she was nine months pregnant at the time of trial. “The sole measure of damages for pain and suffering is the enlightened conscience of fair and impartial jurors.” Atlanta Transit System v. Robinson, 134 Ga. App. 170, 171 (213 SE2d 547) (1975). We find no basis for upsetting the jury’s determination of such damages in this case.

3. At the outset of the proceeding, the trial court decided to bifurcate the trial, first hearing evidence concerning the issue of liability and actual damages, and then hearing evidence concerning punitive damages. Coker was not allowed to present evidence about Blanchfield’s alleged intoxication at the first portion of the proceeding. Coker contends that this exclusion was error, because evidence of the tortfeasor’s intoxication was pertinent not only to any determination of punitive damages, but also to the issue of negligence and general liability. Since the jury found Blanchfield liable for actual damages, however, Coker’s contention of error raises a moot point.

Decided November 6, 1989.

Robert E. Richardson, for appellant.

Harper & Cooper, J. Blair Craig II, for appellee.

4. Coker’s amended complaint sought damages for “loss of use of her personal property and other incidental expenses.” The subsequent pre-trial order indicates that Coker sought compensatory damages for “permanent personal injuries, medical expenses, lost wages, pain and suffering and other incidental expenses.” At trial, when Coker attempted to present evidence of rental car expenses, the trial court excluded it on the basis that Coker’s complaint and the pre-trial order sounded only in personal injury. The trial court was mistaken about the substance of Coker’s amended complaint, and we concluded that the trial court construed the pre-trial order too strictly. “A pretrial order should be liberally construed to allow the consideration of all questions fairly within the ambit of contested issues.” Cooper v. Rosser, 232 Ga. 597, 598 (207 SE2d 513) (1974). It was error to exclude this proffered evidence.

Judgment affirmed in part, reversed in part.

Birdsong and Ben-ham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A0990, A89A0991.
    A89A0992.
    A89A1007.
    THREE RIVERS HOME HEALTH SERVICES, INC. v. HEALTHMASTER, INC. et al.; and vice versa. GEORGIA STATE HEALTH PLANNING AGENCY et al. v. THREE RIVERS HOME HEALTH SERVICES, INC. VNA OF GREATER TIFT, INC. v. GEORGIA STATE HEALTH PLANNING AGENCY et al.
    (388 SE2d 7)
   Banke, Presiding Judge.

These cases are similar to and controlled by Chattahoochee Valley Home Health Care v. Healthmaster, 191 Ga. App. 42 (381 SE2d 56) (1989), wherein certain providers of home health care services sought judicial review of a declaratory ruling by the State Health Planning Agency (SHPA) allowing a competitor, Healthmaster Home Health Care of Georgia, Inc., and its parent corporation, Healthmaster, Inc. (hereinafter referred to together as Healthmaster) to provide home health services in certain specified Georgia counties without obtaining a certificate of need pursuant to OCGA § 31-7-155. The Georgia Supreme Court has declined to review our decision in Chattahoochee Valley Home Health Care v. Healthmaster, supra; however, on July 28, 1989, it entered an order staying its remittitur in the case pending the filing of an application for certiorari in the Supreme Court of the United States.

Decided October 16, 1989

Rehearings denied November 7, 1989

Phears & Dailey, Michael A. Dailey, Victor L. Moldovan, John P. Harrington, for Three Rivers & VNA.

Troutman, Sanders, Lockerman & Ashmore, Robert P. Williams II, W. Randall Tye, for Healthmaster.

The appellants herein, Three Rivers Home Health Services, Inc., (Three Rivers), and VNA of Greater Tift, Inc., (VNA), are additional competing home health care providers which have challenged Healthmaster’s grandfather status and have sought judicial review of the SHPA’s declaratory ruling upholding Healthmaster’s right to operate without obtaining a certificate of need. In the VNA action, the superior court granted a joint motion to dismiss filed by Healthmaster and the SHPA; while in the separate Three Rivers action, the court denied a joint motion to dismiss filed by Healthmaster and the SHPA but then affirmed the SHPA’s declaratory ruling on the merits. The cases are before us pursuant to our grant of the appellants’ applications for discretionary appeal of these respective rulings. Held:

1. Based on our decision in Chattahoochee Valley Home Health Care v. Healthmaster, supra, that the plaintiffs had standing as business competitors to seek judicial review of the SHPA’s rulings regarding Healthmaster’s grandfather status, we hold, in case no. A89A1007, that the trial court erred in granting the appellees’ joint motion to dismiss the complaint filed by VNA.

2. In case nos. A89A0991 and A89A0992, which are cross-appeals filed by Healthmaster and the SHPA from the denial of their joint motion to dismiss the Three Rivers action, the ruling complained of is affirmed. In case no. A89A0090, which is Three Rivers’ appeal from the lower court’s order affirming the SHPA’s ruling on its merits, we hold, on the basis of our holding in Chattahoochee Valley Home Health Care v. Healthmaster, supra, that Healthmaster is not exempted from the certificate of need requirement under OCGA § 31-7-155, and that the court’s ruling was consequently in error.

Judgments reversed in case nos. A89A0990 and A89A1007; judgment affirmed in case nos. A89A0991 and A89A0992.

Sognier and Pope, JJ., concur.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Patricia T. Barmeyer, Senior Assistant Attorney General, Susan L. Baranoff, Roger M. Siegel, Assistant Attorneys General, for State Health Planning.


text:
    A89A1401.
    KNIGHT et al. v. STEWART et al.
    (388 SE2d 9)
   Carley, Chief Judge.

Appellant-plaintiffs filed a multi-count suit against appellee-defendants. After answering and denying the material allegations of appellants’ complaint, appellees Preston and Harold Stewart moved for partial summary judgment and appellee State Farm Mutual Insurance Company (State Farm) moved for summary judgment. Appellants appeal from the trial court’s grant of both motions.

1. The relevant facts are as follows: Appellee State Farm issued two separate policies of automobile liability insurance on two separate vehicles owned by appellee Harold Stewart. One of those vehicles was involved in a collision. Appellee State Farm paid out the limits of liability coverage provided under the policy insuring the vehicle that was involved in the collision. The issue that is presented for resolution in this appeal is whether the limits of liability coverage under both policies can be “stacked.” Under the language of the two policies, this issue must be decided adversely to appellants. See Wilson v. Cotton States Mut. Ins. Co., 183 Ga. App. 353, 354 (1) (358 SE2d 874) (1987), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, fn. 8 (376 SE2d 861) (1989).

2. The policy insuring the vehicle that was involved in the collision provided that appellee State Farm would “not defend any suit after [it had] paid the applicable limit of [its] liability for the accident which is the basis of the lawsuit.” Appellants urge that, insofar as appellee State Farm has elected to defend this lawsuit after purporting to pay out the limits of available liability coverage, there must exist some source of additional available liability coverage that appellees have somehow “conspired” to conceal from them. However, appellee State Farm is not electing to defend this lawsuit pursuant to the policy insuring the vehicle that was involved in the collision. Appellants initiated this lawsuit, contending that additional liability coverage was available under the policy insuring appellee Harold Stewart’s other vehicle. Accordingly, appellee State Farm is defending itself and its insureds against appellants’ assertions that the policy insuring the other vehicle is a viable source of additional available liability coverage. Such a defense is certainly in no way inconsistent with the provisions of the policy insuring the vehicle that was involved in the collision but is, in fact, mandated by appellee State Farm’s contractual obligation to provide a defense under the policy insuring the other vehicle. Rather than demonstrating a “conspiracy” to conceal additional available liability coverage, the defense of this lawsuit was necessitated by appellants’ allegations that such coverage existed. The trial court correctly granted partial summary judgment in favor of appellees Preston and Harold Stewart and correctly granted summary judgment in favor of appellee State Farm.

Decided October 17, 1989

Rehearing denied November 7, 1989

George P. Graves, for appellants.

Blasingame, Burch, Garrand & Bryant, Andrew J. Hill III, N. David Wages, for appellees.

Judgments affirmed.

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