author: Sognier, Chief Judge. Carley, Judge,

text:
    A90A2149.
    HEATH v. L. E. SCHWARTZ & SON, INC. et al.
    (405 SE2d 290)
   Sognier, Chief Judge.

Gordon Heath brought suit against L. E. Schwartz & Sons, Inc. (“Schwartz”) and Samuel Mays, seeking damages for injuries he allegedly incurred in a collision between the van Heath was driving and the truck driven by Mays and owned by Schwartz. The jury awarded Heath $516,961.41. Apparently unsatisfied with the verdict, Heath appeals.

The transcript reveals that at the time of the accident in March 1987, appellant was 54 years old and was driving a van specially equipped to accommodate appellant’s wheelchair, which he had been using since contracting polio in 1949. The evidence sharply conflicted whether the collision that occurred was unavoidable, and the $768,830.42 in special damages claimed by appellant as resulting from the collision were vigorously contested.

Appellant’s sole enumeration of error is that the trial court erred by refusing to give his request to charge no. 11 “that [appellees] bore the burden of proving [appellant’s] contributory negligence.” (Emphasis supplied.) An examination of that requested charge reveals that in the final sentence, appellant specifically sought to limit the instruction to a consideration of whether appellees, as defendants, had “the burden to prove [their] contentions that [appellant] was contributorily negligent.” (Emphasis supplied.) Other than the charge placing the burden of proof on appellant to make out his case by a preponderance of the evidence, it is uncontroverted that no reference was made to appellees’ burden of proof as to affirmative defenses, not even the affirmative defense of contributory negligence as requested by appellant. The trial court did, however, charge the jury that “if [appellant’s] negligence was the sole cause of his injury and damage, if he was negligent, then he could not recover,” an abbreviated charge which embodies the principle of contributory negligence as it has existed in Georgia for well over one hundred years. See, e.g., Central R. Co. v. Brinson, 64 Ga. 475, 478-479 (1880). For an enlightening discüssion of the distinction between contributory and comparative negligence, see Whatley v. Henry, 65 Ga. App. 668, 674-675 (16 SE2d 214) (1941). The trial court also instructed the jury on comparative negligence, proximate cause, and pre-existing injury.

Pretermitting the question whether the incompleteness of appellant’s request to charge no. 11 (its final sentence limiting consideration of affirmative defenses to contributory negligence, without addressing the burden on a defendant to prove the affirmative defense of comparative negligence) provided a basis for the trial court’s refusal to give the requested charge, even assuming, arguendo, that the trial court’s failure to give appellant’s request to charge was error, that error does not require reversal here. “ [I]t has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance. [Cits.]” Maloy v. Dixon, 127 Ga. App. 151, 155-156 (2) (b) (193 SE2d 19) (1972). Because contributory negligence, as explained in the instruction given the jury in the case sub judice, serves to bar a plaintiff from recovering any damages when the jury determines that the plaintiff’s negligence was the sole proximate cause of his own injuries, it follows that the jury must have rejected the theory of contributory negligence when it renders an award of damages in the plaintiff’s favor. Hence, case law has long noted that an award of damages “renders harmless any error committed by the court in charging the jury on . . . contributory negligence. [Cits.]” Butler v. Anderson, 163 Ga. App. 547 (2) (295 SE2d 216) (1982). The harmless nature of such an error is especially evident where the jury was charged as to comparative negligence, proximate cause, and pre-existing injuries as alternative bases for reducing damages, as in the case sub judice, since evidence was adduced supporting each of these charges and thus the jury would have been authorized to reduce appellant’s damages on any of these grounds. Maloy, supra at 167; Jones v. Scarborough, 194 Ga. App. 468, 469 (1) (390 SE2d 674) (1990).

The cases relied upon by appellant in support of his argument, Meacham v. Barber, 183 Ga. App. 533, 535-536 (2) (359 SE2d 424) (1987) and Whitehead v. Seymour, 120 Ga. App. 25, 26 (1) (169 SE2d 369) (1969), are distinguishable by the fact that the verdicts rendered therein were in favor of the defendants, not the plaintiff. Nor do we find any merit in appellant’s argument seeking to distinguish the principle set forth in Maloy and Butler, supra, on the basis that the omitted charge here did not involve liability simply because it may have impacted on the amount of damages awarded by the jury. The requested charge’s omission in an otherwise applicable instruction on contributory negligence can hardly be said to have more impact on the jury’s decision on damages than a situation, such as in Butler, supra, in which an abstractly correct, but otherwise inapplicable, charge on contributory negligence is given.

Contrary to the dissent’s position, we cannot reach the issue whether reversible error was committed by the trial court’s failure to give appellant’s requested charge in regard to appellees’ burden of proof as to the affirmative defense of comparative negligence, in that (1) appellant’s requested charge (which ultimately limited consideration of appellees’ burden of proof only to the affirmative defense of contributory negligence, without mentioning comparative negligence), even had it been given, would not have corrected the alleged error regarding appellees’ burden of proof as to comparative negligence, see generally Marlow v. Lanier, 157 Ga. App. 184, 185 (276 SE2d 867) (1981) (party cannot complain if trial court gives incomplete charge where incompleteness arose from instructions requested by party), and (2) appellant’s enumeration does not encompass any error in regard to the trial court’s failure to charge the jury regarding a defendant’s burden to prove the affirmative defense of comparative negligence. See generally Jones v. Farrington, 194 Ga. App. 10, 11 (3) (389 SE2d 776) (1989) (enumeration of error may not be enlarged to include issues not set forth in the enumeration). Nor do we agree that the sequence of the charges given by the trial court, by first informing the jury how damages could be apportioned should they find both parties were negligent (comparative negligence), then second informing the jury that plaintiff could recover nothing if his negligence was the sole proximate cause of his injuries (contributory negligence), somehow caused the contributory negligence charge as given to mutate, so that it no longer meant what it clearly stated: that a finding by the jury that appellant was the sole cause of his injuries, i.e., con-tributorily negligent, would completely bar appellant’s recovery. “The principles of law involved in a case must necessarily be given in charge to the jury seriatim. ‘The court can not crowd every legal principle involved in a case in a separate and distinct paragraph.’ [Cit.] ” City Council of Augusta v. Hammock, 85 Ga. App. 554, 555 (69 SE2d 834) (1952). No reversible error is presented here either because the charge on contributory negligence was abbreviated, see Department of Transp. v. Lewyn, 168 Ga. App. 283, 290 (9) (308 SE2d 684) (1983) (in absence of request for elaboration, a general and correct statement of law not error), or because the correct charge on comparative negligence was not accompanied by the charge on appellees’ burden to prove that affirmative defense. See Burton & Class v. Connell, 84 Ga. App. 106, 109 (2) (65 SE2d 620) (1951) (correct charge not rendered erroneous by failure to give in connection therewith another pertinent and legal charge). Even if failure to give a charge on defendant’s burden to prove affirmative defenses, either generally or specifically directed at the affirmative defense of comparative negligence, amounted to a substantial error harmful as a matter of law under OCGA § 5-5-24 (c), that was not enumerated as error on appeal and cannot be considered now. See generally City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493) (1988).

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, P. J., Pope, Cooper and Andrews, JJ., concur. Beasley, J., concurs in judgment only. Carley, J., dissents.

Carley, Judge,

dissenting.

I disagree with the majority’s analysis by which it affirms the judgment in this case. The majority concludes that any error in the failure of the trial court to give appellant-plaintiff’s written request to charge was harmless, based upon an asserted distinction between “contributory negligence” and “comparative negligence.” There is, of course, a distinction between the defense of “contributory negligence,” which bars a plaintiff’s recovery, and the principle of “comparative negligence,” which may merely diminish a plaintiff’s recovery. Whatley v. Henry, 65 Ga. App. 668, 673 (6) (16 SE2d 214) (1941). If appellant’s refused request to charge had related solely to appellee-defendant’s burden of proving the defense of “contributory negligence,” I could agree with the majority’s harmless error analysis because the verdict in appellant’s favor establishes that the lack of such a charge clearly did not mislead the jury as to liability. Butler v. Anderson, 163 Ga. App. 547 (2) (295 SE2d 216) (1982); Jernigan v. Carmichael, 145 Ga. App. 560, 561 (2) (244 SE2d 92) (1978).

However, appellant’s refused request to charge did not relate solely to appellee’s burden of proving the defense of “contributory negligence.” The refused request related to appellee’s “burden of proving [appellant’s] contributory negligence” in general. In my opinion, this general request was sufficient to encompass appellee’s burden of proof as to both the defense of “contributory negligence” and the principle of “comparative negligence,” for it is the asserted negligence attributed to and contributed by appellant upon which appel-lee ultimately relies in either event. Although there is a distinction between the defense of “contributory negligence” and the principle of “comparative negligence,” “the term ‘contributory’ negligence has been construed by the courts as synonymous with what is perhaps more accurately termed ‘comparative negligence’ or the rule of diminution of damages, where the plaintiff’s negligence is not such as to wholly bar a recovery. . . .” (Emphasis supplied.) Lamon v. Perry, 33 Ga. App. 248, 252 (4) (125 SE 907) (1924). It is obviously in this synonymous sense that the general term “contributory negligence” was employed in appellant’s refused request.

In the instant case, the trial court charged the jury as follows: “I charge you that should you find in this case that there was negligence by both drivers of the vehicles which was concurrent and contributed to proximately cause the injury to the plaintiff, but you find that the plaintiff’s negligence, if any, was less than the defendant driver’s negligence, if any, a recovery by the plaintiff would not be barred, but his damages should be diminished to an amount proportioned to that amount of fault attributable to him. If the negligence upon the plaintiff’s part, if you find he was negligent, was equal to or greater than the defendant’s negligence, if you find he was, then the plaintiff would not be entitled to recover. And if the plaintiff’s negligence was the sole cause of his injury and damage, if he was negligent, then he could not recover.” As can be seen, the trial court did not limit its instructions to the defense of “contributory negligence,” but also instructed on the principle of “comparative negligence.”

Accordingly, in the absence of appellant’s refused request, the jury was never specifically instructed that, insofar as appellant’s alleged negligence was relied upon either as a bar to or as a limitation on the amount of his recovery, the burden of proof was on appellee. Although the error in failing to give this refused request was certainly harmless to the extent that appellant’s alleged negligence was relied upon as a total bar to his recovery, it cannot be said to be harmless insofar as appellant’s alleged negligence was relied upon to diminish the amount of his recovery. In the absence of the requested instruction, the jury may well have erroneously concluded that appellant did not meet the burden of disproving his comparative negligence and, based upon that erroneous conclusion, may have awarded a reduced recovery because of his failure to have satisfied a burden of proof that he was never obligated to meet. It cannot be established that the general verdict in favor of appellant was not diminished in some amount and was, therefore, unaffected by the erroneous failure to give the refused request. It follows that the error is not harmless and that a new trial is mandated. Accordingly, I must respectfully dissent.

Decided March 15, 1991

Rehearing denied March 29, 1991

Reynolds & McArthur, Charles M. Cork III, for appellant.

Jones, Cork & Miller, Wallace Miller III, Rufus D. Sams III, for appellees.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A2300.
    HARRIS v. THE STATE.
    (405 SE2d 501)
   Banke, Presiding Judge.

The appellant was convicted in probate court of the offense of driving with an alcohol concentration of .12 grams or more, in violation of OCGA § 40-6-391 (a) (4). He appealed to superior court, which, pursuant to OCGA § 40-13-28, made a “de novo” determination, based on a review of the record certified from the probate court, that the appellant was guilty of the offense. This appeal followed. Held:

1. The appellant contends that “[t]he trial court erred in overruling [his] motion to dismiss and plea in bar because OCGA § 40-6-391, as amended by subsection (b), thereof fails to fully and fairly inform the accused of the nature and cause of the accusation against him in violation of the rights guaranteed by the 6th Amendment to the United States Constitution. . . .” While the transcript of the probate court proceedings shows that a motion to dismiss and a plea in bar were made and denied in that court, there is no copy of any such motion or plea in the record. However, even assuming arguendo that the appellant’s constitutional challenge to OCGA § 40-6-391 was raised in the probate court, it was without merit. In Steele v. State, 260 Ga. 835, 836 (400 SE2d 1) (1991), the Georgia Supreme Court rejected an identical challenge to the statute, holding that “[ijnasmuch as it is clear what the statute as a whole prohibits, the statute is not unconstitutionally vague.”

2. The appellant contends that the trial court erred in denying his motion to quash the accusation on the ground that it was not prepared on a uniform traffic citation properly approved for use by the Commissioner of the Department of Public Safety. The appellant asserts that the citation was defective because it omitted the following items required by Department of Safety Rule 470-19-.01: (1) The class of license held by the accused, (2) a space for “commercial vehicle information,” and (3) a notice that “pursuant to Georgia Code [17]-6-11 if a driver’s license is surrendered in lieu of cash, a copy of the citation shall serve as a temporary driver’s license. . . .” Inasmuch as there is no suggestion that the appellant was misled or prejudiced in his ability to present a defense because of these alleged deficiencies in the citation, we hold that the trial court did not err in overruling the motion to quash the accusation. See generally DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801) (1969). The case of Hyatt v. State, 134 Ga. App. 703 (2) (215 SE2d 698) (1975), does not require a different result, as the citation at issue here meets the requirement imposed in that case that a uniform traffic citation must be on a form developed by the Director of the Department of Public Safety in order to serve as an accusation.

3. The appellant contends that the trial court erred in admitting the results of the breathalyzer test which was administered to him following his arrest, “because the stop of [his] automobile was pretex-tual without specific and articulable suspicion that [he] was committing a crime.” Although the appellant asserts that the probate court denied a “motion to suppress and motion in limine” seeking the exclusion of the test results on this ground, the record before us contains no such ruling; and the trial transcript reveals that no such objection was made to the admissibility of the test results at the time they were offered. Rather, the appellant waited until the state had rested its case to seek a ruling on this objection, at which time he moved “for a directed verdict with regard to the motion to suppress.”

The rule barring the admission of evidence obtained in violation of the accused’s rights under the Fourth Amendment “is only an exclusionary rule and does not affect the competence of evidence admitted without timely challenge. [Cit.]” Graves v. State, 135 Ga. App. 921 (219 SE2d 633) (1975). We hold that by failing to elicit a ruling on his motion to suppress the test results until after the state had rested its case, the appellant waived his Fourth Amendment objection to the admissibility of this evidence.

4. The appellant further contends that the breathalyzer test results should have been excluded because it was not shown that the test was conducted in accordance with methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation, as required by OCGA § 40-6-392 (a) (1). See generally Dotson v. State, 179 Ga. App. 233 (345 SE2d 871) (1986). The officer who performed the test testified that he was certified to operate the machine, and that he had conducted the customary pretest procedures before administering the test. There was also testimony that the machine, an Intoximeter 3000, was periodically serviced. Thus, appellant’s contention that the state did not lay a proper foundation is without merit. Accord Broski v. State, 196 Ga. App. 116 (395 SE2d 317) (1990). “ ‘The defendant’s challenge to the reliability of the test results did not affect their admissibility under these circumstances, but went merely to the weight to be placed on them by the jury.’ [Cit.]” Dotson, supra, 233. Accord Burks v. State, 195 Ga. App. 516 (2) (a) (394 SE2d 136) (1990).

5. The appellant contends that the trial court erred in overruling his motion for directed verdict of acquittal, because the testing officer did not testify that the reading of .18 returned by the intoximeter machine was an indication of blood-alcohol content but instead testified that the machine “measures the breath.” We find this contention to be without merit. The officer testified that the intoximeter machine “registered .18 grams percent.” Construed in favor of the verdict, this evidence, combined with the other evidence introduced at trial, was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the appellant was guilty of driving with an “alcohol concentration [of] 0.12 grams or more,” in violation of OCGA § 40-6-391 (a) (4). See OCGA § 40-1-1 (1); Brannan v. State, 261 Ga. 128 (401 SE2d 269) (1991). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

On Motion for Rehearing.

The appellant contends on motion for rehearing, for the first time, that because no written waiver of his right to trial by jury appears in the record transmitted to this court, we must presume that no such waiver was obtained from him. He further contends that the jurisdiction of the probate court was contingent upon its obtaining such a waiver and that its judgment must consequently be considered a nullity, notwithstanding his failure to raise the asserted defect previously. See OCGA § 40-13-23 (a); Snellings v. State, 194 Ga. App. 552, 553 (391 SE2d 36) (1990).

While the document itself is not contained in the record before us, it is evident from the transcript of the probate court proceedings that the appellant did in fact sign a jury trial waiver in open court prior to the commencement of the trial. Following a brief discussion of the need for such a waiver, the appellant’s counsel presented him with the document and instructed him to sign it, telling him, “This says that you are waiving your right to a trial by jury, and you’re going to allow Judge Hamby to hear the case today.” The following parenthetical notation appears immediately thereafter in the transcript: “Thereupon, the defendant signed the waiver.” Thus, contrary to the appellant’s assertion, the record before us does in fact show that the probate court acquired jurisdiction of the case pursuant to OCGA § 40-13-23 (a).

Decided March 8, 1991

Rehearing denied March 29, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Motion for rehearing denied.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A90A2356.
    WALKER v. McLARTY et al.
    (405 SE2d 294)
   Sognier, Chief Judge.

Lou Walker filed suit against Gary M. McLarty and his attorney, Clifford H. Hardwick, seeking damages for abusive litigation. Mc-Larty and Hardwick filed a joint motion for summary judgment, which was granted by the trial court. Walker appeals.

The record reveals that in her complaint, appellant asserted that two prior actions had been filed improperly against her by appellee Hardwick on behalf of appellee McLarty. In determining whether summary judgment should be granted to appellees, the trial court found that appellant had alleged two separate causes of action for abuse of process. According to the complaint, the first action was reduced to judgment in 1984. Because appellant’s instant action was not filed until 1988 and the applicable statute of limitation is two years, see OCGA § 9-3-33; Securities Investment Co. v. Bennett, 117 Ga. App. 415 (160 SE2d 602) (1968), the trial court correctly found that, as to the first alleged instance of abusive litigation, appellant’s action was time barred.

With regard to the second instance of abusive litigation alleged by appellant in her complaint, the record shows that in support of their motion for summary judgment, appellees included a copy of an order in the prior action denying appellant’s motion for summary judgment in that action. The trial court found that the denial of that motion for summary judgment resulted in a collateral estoppel of appellant’s claim in the case at bar.

“ ‘The purpose of the Summary Judgment Act is to eliminate the necessity for trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.’ [Cit.]” Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983). Contrary to appellant’s argument, the previous denial of summary judgment to appellant constitutes a binding determination that the claim against her did not lack substantial justification, see Felker v. Fenlason, 197 Ga. App. 476, 477 (2) (398 SE2d 754) (1990); Contractors’ Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38 (403 SE2d 844) (1991), and consequently proof of that denial established that appellee was entitled to judgment in this case as a matter of law. In opposing appellees’ motion for summary judgment in this case appellant did not allege that her motion for summary judgment in the prior action had not been denied, nor did she raise any objection in the trial court to the tender of the apparently uncertified copy of that order. Although failure to object will not amount to a waiver when the deficiency in the evidence is substantive, in this case the deficiency was not substantive, but was a “formal defect” and thus appellant’s failure to object constituted a waiver. See Parlato, supra. Accordingly, the trial court properly considered the document in ruling on the motion for summary judgment.

Moreover, there is indication in the record that the trial court took judicial notice of the grant of summary judgment to appellees in the prior action. It is manifest that the trial court considered it, as it is mentioned specifically in the trial court’s order in this case as the basis for granting summary judgment to appellees herein. Compare Bell v. Figueredo, 190 Ga. App. 163, 165 (4) (378 SE2d 475), rev’d on other grounds 259 Ga. 321 (381 SE2d 29) (1989) (trial court specifically declined to take judicial notice of a prior case). It is clear, as the dissent concedes, that the trial court had the power and authority to notice the prior case. Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984). Even accepting, arguendo, the premise that the exhibit containing the prior order was improper as evidence, as argued by the dissent, in the face of a silent record the presumption of the regularity of all proceedings in courts of competent jurisdiction (see generally Siegel v. Gen. Parts Corp., 165 Ga. App. 339 (301 SE2d 292) (1983)) requires that we assume that the evidence before the trial court in this case sufficed to support its grant of summary judgment to appellees. Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (1986). Accordingly, we must assume that order was judicially noticed since otherwise the trial court could not have considered it.

We note that although the prior record should have been designated as part of the record on this appeal, see Petkas, supra, “[t]he burden of doing so was clearly upon appellant.” Acker, supra. Consequently, appellant’s failure to so designate the record should not cause a reversal in her favor. The trial court’s grant of summary judgment to appellees was proper. See generally Widen v. Atlanta Hosp. &c., 194 Ga. App. 890, 892 (392 SE2d 60) (1990).

Judgment affirmed.

Birdsong, P. J., Carley, Pope, Cooper and Andrews, JJ., concur. Beasley, J., concurs in judgment only. McMur-ray, P. J., and Banke, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

The exhibit to defendants’ supplemental brief to the superior court, which purports to be an order in a previous case in the Superior Court of Paulding County, appears to be the prior denial of summary judgment described in the superior court’s order granting summary judgment to defendants in the case sub judice. Nonetheless, the exhibits attached to defendants’ briefs in the superior court are not evidence or a proper predicate for a grant of summary judgment. OCGA § 9-11-56 (c); Butterworth v. Pettitt, 223 Ga. 355, 357 (155 SE2d 20). Indeed, while plaintiff has requested that the clerk omit nothing from the record, the record contains no evidence submitted in support of either party. The allegations of plaintiff’s complaint state a proper claim and have not been pierced by evidence presented in support of defendants’ motion for summary judgment. Thus, I would hold that the superior court’s grant of defendants’ motion for summary judgment was error. Boss v. Food Giant, 193 Ga. App. 434 (388 SE2d 37).

The majority predicates its conclusion, that the superior court judicially noticed the prior denial of summary judgment, upon the premise that “in the face of a silent record the presumption of the regularity of all proceedings in courts of competent jurisdiction [cit.] requires that we assume that the evidence before the trial court in this case sufficed to support its grant of summary judgment to appel-lees [cit.].” This premise is false in that the record in the case sub judice is not silent. The supposedly silent order being appealed states that the superior court “reviewed the file herein, including the briefs of the parties and the accompanying exhibits, the Court finds. . . .” (Emphasis supplied.) It is thus explicitly stated on the record that the ruling of the superior court is predicated upon the non-evidentiary exhibits to defendants’ brief. Furthermore, the superior court having undertaken to set out in its order the materials reviewed in reaching its decision, it may not be reasonably presumed that the superior court’s list is not complete. In my view, the presumption of the majority that the superior court took judicial notice of the prior summary judgment is unfounded and conflicts with the record on appeal. Therefore, I respectfully dissent.

Furthermore, this case is an excellent demonstration of the need for a requirement that where a trial court takes judicial notice of a prior record or portion thereof, such should be explicitly stated on the record. We should not be required to determine from an ambiguous record, such as in the case sub judice, whether judicial notice of a prior record was taken. Additionally, in the absence of an explicit statement that the evidence has been expanded by judicial notice of a prior record, an appellant may not be placed on reasonable notice of a need to designate the prior record in order to complete the record sent up to an appellate court. Compare Acker v. Jenkins, 178 Ga. App. 393 (1), 394 (343 SE2d 160).

Decided March 15, 1991

Rehearing denied March 29, 1991

Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geof-froy, for appellant.

Clifford, H. Hardwick, for appellees.


author: Pope, Judge.

text:
    A89A1776.
    WMH, INC. et al. v. THOMAS et al.
    (405 SE2d 768)
    Decided April 1, 1991.

      Brinson, Askew & Berry, Robert M. Brinson, C. King Askew, J. Anderson Davis, for appellants.

      Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., for ap-pellees.

      Thomas L. Murphy, amicus curiae.
   Pope, Judge.

Our judgment in this case at 195 Ga. App. 61 (392 SE2d 539) (1990) has been affirmed in part and reversed in part by the Supreme Court on certiorari. WMH, Inc. v. Thomas, 260 Ga. 654 (398 SE2d 196) (1990). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and reversed in part.

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


author: Andrews, Judge.

text:
    A91A0003.
    TURNER v. THE STATE.
    (405 SE2d 296)
    Decided April 1, 1991.

      William P. Bartles, for appellant.

      Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant

      District Attorney, for appellee.
   Andrews, Judge.

Defendant appeals the trial court’s denial of his motion in limine which sought to exclude the results of the state-administered breath tests due to the State’s refusal to allow him a separate test pursuant to OCGA § 40-6-392 (a) (3).

Upon being arrested, defendant was advised of his implied consent rights and taken to the police station where he was administered the Intoximeter 3000 breath test. After completing the test and registering .13, he was asked by the machine operator if he wore dentures. Upon answering affirmatively, defendant asked for another breath test, which was administered after he rinsed his dentures. He again registered .13, at which time he asked for a blood test, but was told he could not have it, the officer explaining “he had just had his additional test.”

Section 40-6-392 (a) (3) provides that “[t]he person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the discretion of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. . . .” (Emphasis supplied.)

While here it is argued that the refusal to allow the private test was “justifiable,” no such justification was put forward or found below and that argument will not be addressed here for the first time. Cooper v. State, 188 Ga. App. 297, 298 (3) (372 SE2d 679) (1988).

The plain wording of the statute indicates more than one test may be requested by the accused, for example a breath test and a blood test. Failure to allow the defendant his additional test or tests, absent a finding that such failure is “justifiable,” is a violation of the statute and precludes the State’s use of its tests. Norfleet v. State, 196 Ga. App. 548, 550 (396 SE2d 237) (1990); Covert v. State, 196 Ga. App. 679, 681 (396 SE2d 596) (1990). The court erred in not excluding the State’s test results.

Judgment reversed.

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

       The arrest occurred in 1989, thus the pre-1991 version of the statute applies. No change was made in the statute.


author: Sognier, Chief Judge.

text:
    A91A0014.
    PENDERGRASS v. THE STATE.
    (405 SE2d 297)
   Sognier, Chief Judge.

Johnny W. Pendergrass was convicted of aggravated assault, possession of a firearm during the commission of a crime, carrying a concealed weapon, and carrying a pistol without a license. He appeals from the judgment entered on his conviction for the first two of these offenses.

The evidence adduced at trial showed that on the evening of November 24, 1989, appellant was at a restaurant in Rome with his wife and child. Also present at the restaurant was Melvin Green, who was with two others. Appellant and Green had never met before this evening. The evidence showed that words were exchanged in the restaurant, that appellant and Green engaged in a fight outside the restaurant, and that appellant was cut with a knife and Green was shot. The evidence conflicted sharply as to which of the parties first spoke to or about the other, and as to whether appellant or Green was the aggressor in the fight. Appellant and Green were both charged with aggravated assault, and were tried jointly. Both claimed to have acted in self-defense, and both were convicted.

Appellant contends that even viewing the evidence in a light most favorable to the jury’s verdict, it was insufficient to support his conviction of the offenses at issue on appeal. Appellant argues that although the evidence could have supported an acquittal of either co-defendant, because both claimed they had acted in self-defense it was incumbent upon the jury to decide which of the defendants was the aggressor and which acted in self-defense rather than disbelieving both and convicting both. We cannot agree with this analysis.

The jury was properly charged on justification as a defense, and was instructed that “a person is not justified in using force ... if that person . . . was the aggressor or was engaged in combat by agreement . . . .” See OCGA § 16-3-21 (b) (3). In order for mutual combat to exist, “there must be a mutual intent to fight, on the part of both parties. [Cit.] . . . This intent, ‘like any other intent, may be manifested by acts and conduct of the parties and the circumstances surrounding them at the time of the combat, as well as the circumstances leading up to and culminating in such combat. The question of intent is peculiarly for the jury where there is any evidence from which it may be inferred.’ [Cit.]” Smith v. State, 51 Ga. App. 601, 605 (181 SE 212) (1935). In the case at bar, the jury could have concluded, from evidence about the acts and circumstances surrounding the fight, that appellant and Green both intended to fight and agreed to fight, and thus neither was entitled to the defense of justification. We find the evidence concerning the circumstances surrounding the fight sufficient to have authorized such a conclusion by the jury under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Dixon v. State, 197 Ga. App. 684, 685 (399 SE2d 275) (1990).

Decided April 1, 1991.

Michael R. Hauptman, for appellant.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Jr., Leigh E. Patterson, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A91A0030.
    GARNER v. THE STATE.
    (405 SE2d 299)
   Sognier, Chief Judge.

James Allen Garner was convicted of possession of cocaine with intent to distribute, a violation of OCGA § 16-13-30 (b), and he appeals.

1. Appellant contends the trial court erroneously denied his request to charge on mere presence, which he asserts was his sole defense. “Mere presence at the scene of the crime is not a recognized defense to a criminal charge. Rather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.” Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356) (1979). Here, the trial court instructed the jury on the presumption of innocence and the burden on the State to prove each element of the crime beyond a reasonable doubt. See id. Further, the State was not relying on appellant’s mere presence at the scene to establish guilt. See Bruce v. State, 191 Ga. App. 580, 582 (3) (382 SE2d 367) (1989). At trial, Officer R. Wheeler testified that he watched appellant receive money from a third party in exchange for a packet of what appeared to be cocaine, and when the officer arrested appellant moments later, he observed 11 packages of what proved to be cocaine in the front seat of the car in which appellant was seated. Accordingly, we find no error in the refusal to give the requested charge.

2. Appellant also enumerates as error the trial court’s overruling of his objections to two allegedly prejudicial and improper questions asked by the prosecutor, and the failure to give curative instructions to the jury after sustaining his objection to another improper question.

(a) During her cross-examination of Officer Wheeler, the prosecutor asked him whether Bankhead Courts, the public housing complex where he observed and arrested appellant, had a problem with “public .. . outdoor sales of crack [cocaine].” The court sustained appellant’s objection and counsel requested no further action. OCGA § 17-8-75, cited by appellant, provides that when counsel makes “statements of prejudicial matters which are not in evidence,” the court must prevent such statements, and, “[o]n objection made, the court shall also rebuke the counsel and by all needful and proper instruction to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the oifender.” Nonetheless, in construing this provision, our courts have held that after an objection to an improper question or statement is sustained, the court has no duty to rebuke counsel or give curative instructions absent a further request from the complaining party. Phillips v. State, 230 Ga. 444, 445 (1) (197 SE2d 720 ) (1973); see Vernon v. State, 152 Ga. App. 616, 617-618 (2) (263 SE2d 503) (1979). Accordingly, given appellant’s failure to request further action, we find no reversible error in the trial court’s failure to give curative instructions after sustaining appellant’s objection.

(b) The other two questions at issue came during the prosecutor’s cross-examination of appellant. She first queried whether Bankhead Courts was “an area where people do, in fact, stand on the street and sell drugs.” After his counsel’s objection was overruled, appellant answered that he was aware there was some drug activity in the area. The prosecutor continued this line of questioning by asking whether “it was so bad at one point that a mail man walking through the area got shot.” Appellant’s objection to this query also was overruled, but he denied any knowledge of the incident.

We agree with appellant that the court erred by overruling his objections to these questions because they were prejudicial and assumed facts not in evidence. See Shaw v. State, 241 Ga. 308, 310 (3) (245 SE2d 262 ) (1978). The error, however, is not reversible if we find it is highly probable that the error did not contribute to the verdict. See Butler v. State, 239 Ga. 591, 592 (5) (238 SE2d 387) (1977). With regard to the first question quoted above, the prosecutor previously had elicited testimony from Officer Wheeler on the same point (prior to the question discussed in Division (2) (a) supra) without objection from appellant. See id. In response to the second question, appellant denied knowledge of the incident, and the prosecutor then discontinued that line of questioning. See Shaw, supra at 310 (3). Given these factors, plus the overwhelming evidence against appellant, we hold the questions, albeit improper, were not so inflammatory as to result in reversible error. See id.; see generally Owens v. State, 248 Ga. 629, 631-632 (284 SE2d 408) (1981).

Decided April 1, 1991.

Johnathan Goldberg, Avis K. Hornsby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Constance C. Russell, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A0035.
    LANE v. TAYLOR et al.
    (405 SE2d 324)
    Decided April 1, 1991.

      Dailey & Groover, Lewis M. Groover, Jr., for appellant.

      Downey, Cleveland, Parker & Williams, Russell B. Davis, for ap-pellees.
   McMurray, Presiding Judge.

In this personal injury action, the jury awarded plaintiff $5,000. Judgment was entered on February 13, 1990, in favor of plaintiff and against defendants in the amount of $2,500 to reflect the payment of personal injury protection (“PIP”) benefits (in the amount of $2,500) by plaintiff’s insurer. On February 22, 1990, plaintiff appealed. Held:

In Barikos v. Vanderslice, 177 Ga. App. 884 (341 SE2d 513), this court held amounts credited against a judgment for no-fault insurance payments must be subtracted from the amount of the judgment in determining whether a judgment is appealable directly. Barikos was overruled by the Supreme Court in Bales v. Shelton, 260 Ga. 335 (391 SE2d 394), on May 17, 1990. However, in overruling Barikos, the Supreme Court made it clear that Bales was to be applied prospectively only. Thus, Barikos was still viable when this appeal was filed on February 22, 1990.

Under Barikos v. Vanderslice, 177 Ga. App. 884, supra, it was incumbent upon plaintiff to use the discretionary appeal procedure since the resulting judgment was $2,500. OCGA § 5-6-35 (a) (6). It follows that this direct appeal must be dismissed.

Appeal dismissed.

Sognier, C. J., and Andrews, J., concur.


author: Carley, Judge. Beasley, Judge,

text:
    A91A0036.
    SWANSON v. SMITH.
    (405 SE2d 301)
   Carley, Judge.

Appellant-plaintiff brought suit, seeking to recover damages for injuries sustained when she fell on property occupied and maintained by appellee-defendant. Appellee answered and, after discovery, moved for summary judgment. The trial court granted appellee’s motion and appellant appeals from that order.

Construed most favorably for appellant, the evidence of record reveals the following: Without an appointment, appellant walked up the driveway of appellee’s home and rang the front doorbell. Appellee maintained the office for his developing business in his home, and the purpose of appellant’s visit was to determine whether he would be interested in purchasing her home. When no one responded to the doorbell, appellant decided to step into and across appellee’s backyard for the purpose of visiting a friend in a nearby house. After entering the backyard, appellant stepped in a hole and injured her ankle.

“ ‘The liability of [appellee] depends upon whether [appellant], at the time [she] suffered [her] . . . injury, was [a trespasser,] a licensee or an invitee[.] . . . Under OCGA § 51-3-2, the owner or proprietor of the premises is liable only for wilful or wanton injury to a licensee, whereas under OCGA § 51-3-1 the landowner or occupier owes an invitee the duty to exercise ordinary care in keeping the premises safe[.] ... To determine whether a person is an invitee or a mere licensee, the nature of his relation or contact with the owner or occupier of the premises must be determined. The test is “whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience!.] . . .” [Cit.] If an invitee does not go beyond that part of the premises to which, as it reasonably appears to him the invitation extends, he does not become a licensee. [Cit.] If, however, he does go beyond that part to which he is invited, he becomes a mere licensee. [Cits.]’ [Cit.]” (Emphasis and indention omitted.) Armstrong v. Sundance Entertainment, 179 Ga. App. 635, 636 (347 SE2d 292) (1986).

Even assuming appellant was originally an invitee when she went to appellee’s front door (but see Edmunds v. Copeland, 197 Ga. App. 292, 293 (398 SE2d 280) (1990)) and regardless of however innocent her subsequent decision to enter appellee’s backyard may have been (see Brooks v. Logan, 134 Ga. App. 226, 228 (1) (213 SE2d 916) (1975)), “it must be held as a matter of law that at the time of her injury [appellant] was not on a portion of the premises to which as the situation might reasonably appear to her an implied invitation extended.” Freeman v. Levy, 60 Ga. App. 861, 862 (6) (5 SE2d 61) (1939). See also Total Equity Mgmt. Corp. v. Demps, 191 Ga. App. 21, 22 (1) (381 SE2d 51) (1989). Appellee’s evidence that he did not know of the existence of the hole, and so could not have wilfully and wantonly injured appellant, is unrefuted. Accordingly, the trial court properly granted appellee’s motion for summary judgment.

Decided April 1, 1991.

Meadows & Associates, Richard D. Schrade, Jr., for appellant.

Downey, Cleveland, Parker & Williams, J. Calhoun Harris, Jr., for appellee.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the opinion as it is based on a proper application of controlling legal principles. However, with no disrespect of Judge Sutton, I cannot join in perpetuating, by quotation, the wording used to state the principle contained in Freeman v. Levy, 60 Ga. App. 861, 862 (6) (5 SE2d 61) (1939).


author: Carley, Judge.

text:
    A91A0048.
    RAWLINS v. CAMPBELL.
    (405 SE2d 111)
   Carley, Judge.

Appellant-plaintiff brought suit, seeking to recover for appellee-defendant’s alleged conversion of funds from an account which had been opened at a financial institution. Appellee answered and, after discovery, moved for summary judgment. The evidence established that, as the account was originally created, appellee and E. D. Rawl-ins were joint tenants with the right of survivorship. Prior to his death, however, Rawlins had purported to add the name of appellant to the account and appellant signed the signature card as the ostensible third joint tenant. After Rawlins’ death, appellee withdrew the funds and closed the account. On this evidence, the trial court granted appellee’s motion for summary judgment and appellant appeals from that order.

The “rights of survivorship are determined by the form of the account at the death of a party. Once established, the terms of a multiple-party account can be changed only: (1) By closing the account and reopening it under different terms; or (2) By presentation to the financial institution of a modification agreement in a form satisfactory to the financial institution and signed by all parties with a present right of withdrawal.” (Emphasis supplied.) OCGA § 7-1-814. It is undisputed that the multiple-party account that is here at issue was never closed and reopened under different terms and that appellee never signed a modification agreement. OCGA § 7-1-814 constitutes “a clear and unambiguous statement of the public policy of this state, and as such, this court has no authority to place a different construction upon the statutory requirements therein contained, but must construe the statute according to its terms. [Cit.]” Time Ins. Co. v. Lamar, 195 Ga. App. 452, 453 (1) (393 SE2d 734) (1990). Accordingly, the terms of a multiple-party account, including the designation of those parties who have the right of withdrawal, can be changed only by compliance with the requirements of OCGA § 7-1-814. Grady v. DeKalb County Teachers Fed. Credit Union, 152 Ga. App. 86 (262 SE2d 250) (1979).

Decided April 1, 1991.

Appellant urges that the broad and general language of the account agreement that appellee signed when the account was originally created should be construed as evidencing appellee’s agreement that, notwithstanding OCGA § 7-1-814, Rawlins could unilaterally add the name of anyone of his choosing to the account. However, even assuming that the language of the account agreement would admit of such a construction, that construction could not be adopted because it would be violative of the public policy evidenced by OCGA § 7-1-814. It is well settled that parties “are free to contract about any subject matter, on any terms, unless prohibited by constitutional law, statutory law, or public policy. [Cit.]” (Emphasis supplied.) National Consultants v. Burt, 186 Ga. App. 27, 30 (2) (366 SE2d 344) (1988). “Under basic principles of contract law, it is axiomatic that, as long as the provisions of a given contract are in compliance with the requirements of governing statutes, the parties to the contract may include provisions different from, or more liberal than, those prescribed in the statute or statutes.” (Emphasis supplied.) Jones v. Barnes, 170 Ga. App. 762, 764-765 (318 SE2d 164) (1984). As noted, OCGA § 7-1-814 establishes that the public policy of this state is that the terms of a multiple-party account can be changed only by compliance with the requirements of that statutory provision. Time Ins. Co. v. Lamar, supra; Grady v. DeKalb County Teachers Fed. Credit Union, supra.

At the time of Rawlins’ death, the terms of the account had not been changed pursuant to OCGA § 7-1-814 and appellee was the only surviving joint tenant. It follows that the trial court correctly granted summary judgment in appellee’s favor.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

Smith & Welch, J. Mark Brittain, Ben W. Studdard III, for appellant.

C. Alan Mullinax, Walter C. Alford, for appellee.


author: Beasley, Judge.

text:
    A91A0060.
    HODGE RESIDENTIAL, INC. et al. v. BANKERS FIRST FEDERAL SAVINGS & LOAN ASSOCIATION.
    (405 SE2d 302)
   Beasley, Judge.

Appellee, Bankers First Federal Savings & Loan Association, filed a ten-count complaint against appellants, Hodge Residential, Inc., Bobby Hodge, and Hodge Industries, Inc., seeking recovery of sums due under two promissory notes executed by appellant Hodge Residential, one promissory note executed by appellant Hodge Industries, three promissory notes executed by appellant Bobby Hodge, and four promissory notes executed by Hodge Home Builders, Inc., which was not made a party in this suit. All notes were guaranteed by appellant Bobby Hodge in his individual capacity.

The complaint was filed in the Richmond Superior Court. Both Hodge Residential and Hodge Industries are Georgia corporations, with their principal place of business located in Richmond County. Bobby Hodge is a resident of Columbia County. Bankers sought to establish venue over Bobby Hodge in Richmond County on the ground that he and the resident defendants are joint obligors. See OCGA § 9-10-31; Art. VI, Sec. II, Par. IV of the 1983 Ga. Const.

Between 1984 and 1987, appellants were involved in the business of commercial and residential land development, as well as building construction. During this time period, they borrowed funds from Bankers, as is evidenced by the promissory notes listed in the complaint.

In 1986 and 1987, the borrowers began experiencing severe financial problems due in part to trends in the real estate market. They defaulted on their obligations to Bankers and other creditors. Borrowers, who were represented by counsel, entered into negotiations with Bankers to refinance their debt obligations. A refinancing agreement was entered into on February 20, 1987, under which all outstanding debts to other creditors were satisfied in consideration of borrowers’ undertaking an additional obligation to Bankers in the amount of $471,494.10, due and payable on February 20, 1988.

Default occurred and Bankers sued. It also foreclosed on properties which secured some of the loans and applied the proceeds of the sales to the debts, leaving a principal balance due in the amount of $713,041.85. The foreclosure sales were confirmed by the superior court, OCGA § 44-14-161, allowing Bankers to sue for the deficiency. The borrowers admitted the existence of the unpaid debts but pled fraud in the inducement as a defense to their liability under the refinancing agreement and as the basis for a counterclaim. They allege that when the refinancing agreement was executed, Bankers orally agreed to extend its term beyond the due date stated. They further allege that Bankers orally promised to “help market” their properties. They contend that appellee not only breached these oral .agreements but also deterred potential customers from purchasing property from borrowers.

Summary judgment was granted to Bankers on its claim and on the counterclaim. It appearing that all borrowers except Bobby Hodge are judgment proof, the court entered final judgment against Bobby Hodge for the principal amount of the debts, as well as $139,650.45 in accrued interest.

1. Bobby Hodge contends that venue as to him in Richmond County was lacking for two reasons.

(a) Venue was lost since no final judgment for money damages was entered against the resident joint obligors.

This argument is without merit. Summary judgment was granted against all joint obligors. It is uncontested that final judgment for money damages was entered against only Bobby Hodge because he is the guarantor and the others cannot satisfy the liability of their debt. Compare Woods v. Long Mfg., N.C., 150 Ga. App. 499 (258 SE2d 592) (1979); Steding Pile Driving Corp. v. John H. Cunningham & Assoc., 137 Ga. App. 165, 166 (1) (223 SE2d 217) (1976).

(b) Venue does not lie as to those notes which were executed by him in his individual capacity, as well as those notes executed by the non-party corporation.

Hodge did not assert improper venue as a defense, either in answer or motion as required by OCGA § 9-11-12 (h) (1) (B), (h) (3). He filed only a general denial in this regard. The defense was waived. OCGA § 9-11-12 (h) (1) (B); Orkin Exterminating Co. v. Morrison, 187 Ga. App. 780, 782 (3) (371 SE2d 407) (1988). See also Setac Corp. v. W. P. Stephens Lumber Co., 159 Ga. App. 285 (1) (283 SE2d 351) (1981).

2. Borrowers enumerate as error the grant of summary judgment in favor of Bankers because there are genuine issues of material fact as to allegations of fraud.

(a) The primary allegation is that prior to or contemporaneous with the execution of the refinancing agreement, Bankers orally promised to extend the due date of the debt payment beyond the written terms of the agreement.

“[P]rior and contemporaneous statements or agreements cannot be shown to vary, contradict, or change the terms of a valid written contract purporting on its face to contain all the terms of an agreement between parties.” Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 61 (2) (240 SE2d 572) (1977); see Pepsico Truck Rental v. Eastern Foods, 145 Ga. App. 410 (1) (243 SE2d 662) (1978). “Making and violating a contemporaneous parol agreement inconsistent with the writings would not be such fraud as would permit a varying of the written instrument, even if pleaded as fraud, no sufficient reason appearing why the agreement was not incorporated in the writings. Dyer v. Walton, 79 Ga. 466 (2) (7 S.E. 220).” Reeves Tractor & Implement Co. v. Barrow, 30 Ga. App. 420 (1) (b) (118 SE 456) (1923); compare Barrie v. Miller, 104 Ga. 312 (30 SE 840) (1898). Evidence of a contemporaneous oral agreement to extend the time for payment of a promissory note beyond the due date contained in the note is barred by the parol evidence rule. See Wilder v. Fed. Land Bank, 176 Ga. 813, 814-815 (1) (169 SE 13) (1933). Even if the opposite party had entered into such an agreement, it would not constitute actionable fraud. Id. at 815 (2). In addition, there can be no justifiable reliance on a promise which is unenforceable at the time it is made. Adamson v. Maddox, 111 Ga. App. 533, 536 (3) (142 SE2d 313) (1965).

Decided April 1, 1991.

Bush, Wallace & Craig, Daniel J. Craig, for appellants.

O. Palmour Hollis, Ziva P. Bruckner, for appellee.

(b) The allegation that Bankers committed fraud by breaching an oral agreement to “help market” their properties is wholly without evidence to support it, as is the allegation that Bankers deterred potential customers from purchasing the properties. The only evidence relative to these issues was given by one of borrowers’ witnesses, who testified that Bankers had referred him to them after he expressed an interest in purchasing a lot on which to build a home.

Plaintiff’s motion for summary judgment was supported by sufficient evidence to cast upon defendants the burden to present evidence showing a genuine issue of triable fact. Cochran v. Southern Bus. Univ., 110 Ga. App. 666 (1) (139 SE2d 400) (1964). They failed, and plaintiff was entitled to judgment as a matter of law. Southeastern Fidelity Ins. Co. v. Tesler, 159 Ga. App. 60, 62 (1) (282 SE2d 703) (1981).

Judgment affirmed.

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


text:
    A91A0106.
    ADAMS et al. v. PERDUE et al.
    (405 SE2d 305)
   Beasley, Judge.

While on patrol as a police officer for the appellee City of Griffin, appellee Perdue spotted a parked car with several people inside and a man outside punching through the window at the driver. Attempting to maneuver his vehicle to the scene, Perdue started moving in reverse at about two miles an hour and backed into the car occupied by appellant Tommie Gean Adams. After inquiring if she was all right and being assured she was, Perdue investigated the fight and then called headquarters to report the accident. Appellants Tommie Gean Adams and her husband sued Perdue and the City, alleging that Per-due had been negligent and reckless. Appellees raised the defense of sovereign immunity and moved for summary judgment, contending that because the City had no liability insurance and Perdue was engaged in a discretionary act at the time of the incident, the appellees could not be held liable for any alleged negligence on his part.

There is one enumeration of error on appeal from the grant of summary judgment to appellees. It is that the trial court erred in ruling that an agreement between the City and the Georgia Interlocal Risk Management Agency (GIRMA) pursuant to OCGA § 36-85-1 et seq., which specifically provided for automobile liability coverage, did not constitute a waiver of sovereign immunity because the City had on prior occasions waived such immunity and paid similar claims.

OCGA § 36-85-4 provides that “[a]n interlocal risk management agency created pursuant to this chapter is not an insurance company or an insurer under Title 33, and the development and administration by such agency of one or more group self-insurance funds shall not constitute doing business as an. insurer.” OCGA § 36-85-20 states: “[tjhe participation by a municipality or county as a member of an agency authorized by this chapter shall not constitute the obtaining of liability insurance and no sovereign immunity shall be waived on account of such participation.” Thus the City’s participation in GIRMA does not waive sovereign immunity, by the express terms of the statutes.

Appellants nevertheless insist, without avail, that because at least one other claim for property damage caused by the negligent use of an automobile by an on-duty city police officer was paid by the fund, immunity was waived. First, the affidavit upon which appellants rely does not establish that the officer involved in that case was engaged in a discretionary act at the time he damaged the affiant’s house. If he had been on routine patrol his acts would have been ministerial in nature and sovereign immunity would not be available as a defense. See Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990).

Second, it does not necessarily follow that a waiver of a defense in one case will constitute a waiver in another, or that the City would be barred from asserting sovereign immunity because GIRMA had paid another claim. The defense of sovereign immunity belongs solely to the City, and the payment of a claim by GIRMA in a completely different case cannot operate as a waiver of the municipality’s right. In any event, a waiver of sovereign immunity can occur only to the extent of liability insurance coverage, and since the City had no liability insurance it could not waive this defense.

Decided April 1, 1991.

Kendall & Kendall, Aluin L. Kendall, Lisa R. Roberts, for appellants.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, for ap-pellees.

As to the officer, Logue v. Wright, 260 Ga. 206 (392 SE2d 236) (1990), is similar. In Logue, an automobile collision occurred when a police officer was answering a call regarding a fight. As is the case here, the officer was not using a flashing or revolving blue light, which was an act of negligence. The Supreme Court stated that under Hennessey v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), if Logue was acting in his official capacity he was immune for negligent acts which were discretionary rather than ministerial; that he was acting in his official capacity arid the decision to rush to the scene of the disorder lay within his discretion; and that therefore, if the county had not waived sovereign immunity by obtaining insurance, the officer was entitled to summary judgment. Id. at 207-208 (1). The court concluded that the legislature had authorized municipalities and counties to procure liability insurance covering officers and employees for damages arising out of the performance of their duties, but that OCGA § 45-9-1 had not empowered counties to establish a self-insurance program. Thus the risk management fund that was budgeted to compensate claims against the county and its employees was not a self-insurance plan which would waive sovereign immunity. Id. at 209 (2) & (3). Since there was no waiver of sovereign immunity by the governmental employer, and Logue was acting discretionarily, he was entitled to official immunity.

Appellees were entitled to summary judgment.

Judgment affirmed.

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

       The court’s order helpfully explains the ruling, even though this is not required by OCGA § 9-11-56.


text:
    A91A0115.
    FISHER v. THE STATE.
    (405 SE2d 117)
    Decided April 1, 1991.

      R. David Botts, for appellant.

      Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, fox appellee.
   Carley, Judge.

After a bench trial, appellant was found guilty of solicitation of sodomy. He appeals from the judgment of conviction and sentence entered by the trial court on its finding of guilt.

The evidence adduced at the bench trial would authorize a finding. that, based upon his words and actions, appellant was not averse to engaging in some unspecified form of sexual activity either in the presence of or with an undercover agent. However, appellant was arrested before the encounter had progressed to the point that any actual or implicit solicitation of a specific act of sodomy ever occurred. See generally Bennett v. State, 21 Ga. App. 505 (94 SE 626) (1917). Compare Anderson v. State, 142 Ga. App. 282 (1) (235 SE2d 675) (1977). It follows that appellant’s enumeration of the general grounds is meritorious and that his conviction must be reversed.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0208.
    A91A0210.
    PORTLAND FOREST PRODUCTS v. GARLAND LUMBER SALES, INC. et al. DUKE v. PORTLAND FOREST PRODUCTS.
    (405 SE2d 307)
   Beasley, Judge.

Plaintiff Portland Forest Products appeals a judgment entered after the direction of a verdict in favor of defendants Garland Lumber Sales, Inc., Frazer Duke and American Lumber Company (Case No. A91A0208). Duke cross-appeals the denial of his individual motion for directed verdict (Case No. A91A0210).

Portland sought damages for its lumber. It had been stored in a building which burned. The building was leased by Garland and owned by Duke. At the close of the evidence, defendants moved for directed verdict on the ground that Portland’s proof of damages was insufficient. The motion was granted.

1. The measure of damages in this case is the fair market value of the lumber at the time it was destroyed. Southern R. Co. v. Birch, 66 Ga. App. 270 (1) (17 SE2d 601) (1941). Portland introduced evidence as to the purchase and invoice prices of the lumber in December 1985. The lumber was then placed in storage in late December and the building burned on May 14, 1986. The only evidence about its condition was testimony by a salesman for Portland who went by to check on it when he heard the lumber had been outside and was wet. He used a moisture meter to test the moisture content of lumber and after examination “determined the lumber had not been outside in the rain.” This was late March or early April 1986. Calvin Garland, the president of both Garland and American, in response to a question regarding what he did to protect the lumber, testified that he “kept it warm and dry and away from the elements.”

Decided April 1, 1991.

Bobby L. Cobb & Associates, Bobby L. Cobb, for Portland.

James E. Spence, Jr., for Garland and American.

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Perry A. Phillips, for Duke.

A jury must be able to “calculate the amount of the loss with a reasonable degree of certainty.” Big Builder v. Evans, 126 Ga. App. 457, 458 (2) (191 SE2d 290) (1972).

Portland failed to establish fair market value of the lumber at the time it was burned. Hoard v. Wiley, 113 Ga. App. 328 (147 SE2d 782) (1966); Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988); Cunningham v. Hodges, 150 Ga. App. 827 (1) (258 SE2d 631) (1979); Hagin v. Powers, 140 Ga. App. 300, 303 (3) (231 SE2d 780) (1976). Compare Messmore v. Roth, 185 Ga. App. 862 (1) (366 SE2d 318) (1988), where in addition to the purchase price (when and as new) and date of purchase, the condition of the property immediately prior to its loss was adduced. The narrow exception with regard to proving value carved out in Braner v. Southern Trust Ins. Co., 255 Ga. 117, 120 (335 SE2d 547) (1985), involving the value of common and familiar homeowner property destroyed by fire, is not applicable. The purchase price or invoice price alone does not establish value. Minit Chek Food Stores v. Plaza Capital, 135 Ga. App. 110 (3) (217 SE2d 415) (1975). Even if the jury could reasonably infer that the condition of the lumber was the same in May as when purchased in December, based in part on the April inspection, it would have to I speculate about its fair market value. That is prohibited. See F. A. Reece Enterprises v. Winnings, 191 Ga. App. 30 (1) (380 SE2d 747) (1989).

2. In view of the ruling in Division 1, the cross-appeal is moot.

Judgment affirmed on the main appeal; cross-appeal dismissed.

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


text:
    A91A0258.
    In the Interest of H. S., a child.
    (405 SE2d 323)
    Decided April 1, 1991.
   Carley, Judge.

A delinquency petition was filed, alleging that appellant “did unlawfully, maliciously cause bodily harm to [the victim] by seriously disfiguring a member of his body, to wit: his head, in violation of OCGA § 16-5-24.” A hearing on this petition was held and appellant appeals from the juvenile court’s adjudication of delinquency.

Only the general grounds are raised in related enumerations of error. In juvenile proceedings, “the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. [Cits.]” M. W. W. v. State of Ga., 136 Ga. App. 472, 474 (221 SE2d 669) (1975). The evidence in the instant case authorized a finding that, as the result of an unprovoked beating administered by appellant, the victim suffered a broken nose and a laceration to the scalp requiring several stitches. Accordingly, the evidence authorized a finding that the victim had incurred a serious disfigurement to his head as the result of being intentionally struck by appellant. Penland v. State, 229 Ga. 256 (1) (190 SE2d 900) (1972); Price v. State, 160 Ga. App. 245 (1) (286 SE2d 744) (1981); Thompson v. State, 156 Ga. App. 1 (1) (273 SE2d 894) (1980); Miller v. State, 155 Ga. App. 54, 55 (4) (270 SE2d 466) (1980); Rollins v. State, 154 Ga. App. 585, 588 (5) (269 SE2d 81) (1980). “Black’s Law Dictionary defines ‘disfigurement’ as ‘that which impairs or injures . . . the appearance of a person . . .,’ and defines ‘serious’ as ‘grave, (or) great.’ ” Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980). To constitute the crime of aggravated battery, there is no requirement that, in addition to being “serious,” the disfigurement of á victim be permanent. The evidence in this case demonstrates, at the very least, “serious temporary disfigurement to the victim. . . .” (Emphasis supplied.) Baker v. State, 245 Ga. 657, 667 (6) (266 SE2d 477) (1980). The juvenile court, as the trior of fact, was authorized to find from the evidence proof of appellant’s delinquency beyond a reasonable doubt and the general grounds are, therefore, without merit. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

Laurens C. Lee, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.


text:
    A91A0329.
    LOVE v. THE STATE.
    (405 SE2d 308)
   McMurray, Presiding Judge.

Defendant Love appeals his conviction on two counts of aggravated assault. Held:

1. Defendant’s first enumeration contends the trial court erred in admitting into evidence a photograph which depicted the scene of the crime. The photograph depicts, in the foreground, a small store, located on an otherwise residential street. A police officer, who had responded to a report of a shooting, testified that this photograph accurately portrayed the location at the store where he found the two victims who had been shot. Defendant’s objection is based on the appearance in the background of the photograph that the street on which the store is located is a dead end. The officer testified that, although the street in the photograph appeared to dead end, it did not and one could make a left turn at the end of the street.

Generally, there is no error in admitting photographs that depict a crime scene. Collins v. State, 259 Ga. 250, 252 (3) (379 SE2d 511). The task of determining whether a photograph is a fair and accurate representation of the scene sought to be depicted is assigned to the trial court, whose discretion will not be disturbed on appeal unless manifestly abused. Williams v. State, 255 Ga. 97, 101 (335 SE2d 553); Brooks v. State, 244 Ga. 574, 582 (261 SE2d 379). A photograph need not be flawless in order to be admissible. White v. State, 251 Ga. 482, 485 (3) (306 SE2d 636). In the case sub judice, the trial court did not err in concluding that the probative value of the accurate depiction of the crime scene outweighed any prejudice arising from the failure to fully depict the distant end of the street.

Defendant’s additional contention that several of the State’s exhibits should not have been admitted into evidence because not supplied to defendant prior to trial in response to a discovery request is without merit. Pretermitting issues as to the viability of a criminal defendant’s discovery request for non-exculpatory evidence, we need only note that this having been raised for the first time on appeal it is deemed waived. Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757).

2. The trial court did not err in curtailing defendant’s cross-examination of a State’s witness concerning the witness’ unrelated criminal conviction. The only possible relevance of such evidence was the impeachment of the witness and such must be accomplished by the prescribed method. “[A] witness cannot be discredited by his own testimony that he had been convicted of an offense involving moral turpitude without introducing an authenticated copy of the record from the court in which he was convicted. [Cit.]” Dabney v. State, 154 Ga. App. 355, 356 (4) (268 SE2d 408). See also Allen v. State, 152 Ga. App. 481, 483 (4) (263 SE2d 259). There was no denial of defendant’s right to a thorough and sifting cross-examination of the witness. Herrin v. State, 138 Ga. App. 729, 731 (6) (227 SE2d 498). (See Patterson v. State, 238 Ga. 204, 207 (232 SE2d 233), disapproving the holding in Division 10 of Herrin v. State, supra, which is inconsistent with the holding in Patterson v. State, supra.)

Decided April 1, 1991.

James H. Dickey, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

3. In polling the jury, the trial court asked each juror individually, “is this your verdict?” and after receiving an affirmative response, “[w]as this your verdict in the jury room?” All jurors having answered both questions affirmatively, the minimum requirements of the defendant’s right to poll the jury were satisfied. Burnett v. State, 240 Ga. 681, 688 (11) (242 SE2d 79); Campbell v. State, 111 Ga. App. 219, 220 (7) (141 SE2d 186). The trial court did not err in refusing to also ask whether the verdict was freely and voluntarily made. Hudson v. State, 237 Ga. 241 (3) (227 SE2d 257).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0345.
    GILES et al. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    (405 SE2d 112)
   Sognier, Chief Judge.

On October 9, 1989, Tommy and Ginger Giles filed suit against Nationwide Mutual Fire Insurance Company to recover on a claim for a fire loss incurred on October 28, 1987. The trial court granted summary judgment to Nationwide because a clause in the insurance policy at issue required actions against Nationwide to be brought within one year of the loss. The Gileses appeal.

Within a few days after the fire destroyed a garage and storage shed at their home, appellants notified appellee of their claim and began meeting with appellee’s claims representative to quantify the loss. Appellants submitted a sworn proof of loss claim on February 2, 1988, and shortly thereafter engaged counsel to assist in pursuing their claim. Appellee requested that appellants give oral statements under oath as required by the policy. Appellants agreed, but the parties then became embroiled in a dispute over the site for the taking of these statements, with appellee scheduling the statements at the Decatur office of its counsel and appellants insisting that the statements be taken either at their home in Greensboro or at the office of their counsel in Athens. On August 3, 1988, appellants’ counsel sent a letter to appellee demanding immediate payment of $53,000 in settlement of appellants’ claim and threatening to file suit if payment was not received within 60 days. On September 7, 1988, appellee’s claims adjuster offered to settle the claim for $16,800, but on the same day appellee’s counsel wrote a letter informing appellants’ attorney that the claim had been denied because of appellants’ failure to give sworn statements. Appellants’ counsel responded two days later with a letter in which he again raised the prospect of legal action. There was no further contact between the parties until suit was filed 13 months later.

1. The limitation of action clause in the policy provides as follows: “Suit Against Us. No action can be brought unless there has been compliance with the policy provisions and the action is started within one year after the date of loss or damage.” Appellants contend that this clause is ambiguous because the term “action” could be interpreted to mean any action undertaken by an insured to assert a claim, not just the initiation of a lawsuit, and consequently the clause should be construed against appellee to permit coverage of the claim.

We do not agree. “There is no construction [of an insurance contract] required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation. [Cit.]” Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291, 294 (265 SE2d 102) (1980). “A contract is not ambiguous, even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. [Cit.]” Id. Applying the rule that “[a]n insurance policy, like any other contract, must be interpreted according to its plain language and express terms [cit.],” Ga. Farm &c. Ins. Co. v. Fire &c. Ins. Co., 180 Ga. App. 777, 778 (350 SE2d 325) (1986), we find that in the clause at issue the word “action” must be read together with the clause heading, “[s]uit against us.” The Random House Dictionary of the English Language (unabr. 2d ed.) defines “suit” as, inter alia, “the act, the process, or an instance of suing in a court of law; legal prosecution; lawsuit.” Id. at 1902. “Action” is defined in part as “Law[:] a proceeding instituted by one party against another[;] the right of bringing it.” Id. at 20. Thus, when these terms are given their ordinary meaning and viewed from the perspective of a lay person, Cincinnati Ins. Co., supra at 295, the clear and unambiguous meaning of the clause is that lawsuits brought against appellee must be filed within one year of the date of loss or damage.

2. We decline appellants’ invitation to depart from the long line of cases holding that a limitation of action clause such as the one at issue here is valid and enforceable. See, e.g., Herring v. Middle Ga. Mut. Ins. Co., 149 Ga. App. 585 (254 SE2d 904) (1979); Aiken v. Northwestern Mut. Ins. Co., 106 Ga. App. 220-221 (126 SE2d 630) (1962).

3. In their remaining enumeration of error, appellants assert that a fact question exists concerning whether appellee, by its actions in negotiating a settlement with appellants, waived its right to insist on compliance with the limitation of action clause. “It is a universal rule that, where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without suit, the insurer cannot take advantage of a provision in the policy which requires the action to be brought in a certain time.” (Citations and punctuation omitted.) Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28-29 (348 SE2d 554) (1986). If the insurer makes direct promises to pay or if settlement negotiations have lead the insured to believe that the claim will be paid without litigation, the time requirement is waived. Id. “However, mere negotiation for settlement, unsuccessfully accomplished, ‘is not that type of conduct designed to lull the claimant into a false sense of security so as to constitute an estop-pel by conduct thus precluding an assertion of (the contractual time limitation) defense by the (insurer).’ [Cit.]” Id. at 29.

Here, the only settlement offer on record was in an amount substantially less than the sum sought by appellants, and they unequivocally rejected that offer and threatened legal action if the entire amount claimed was not paid. Further, appellee’s counsel stated appellants’ claim had been denied for failure to comply with the policy provisions concerning loss investigations. The undisputed evidence thus demonstrates that the parties unsuccessfully concluded settlement negotiations before the one-year limitation period expired. See id.; compare Nee v. State Farm Fire &c. Co., 142 Ga. App. 744 (236 SE2d 880) (1977). The record “ ‘is lacking in evidence of any affirmative promise, statement or other act of [appellee] or any evidence of actual or constructive fraud to lead [appellants] into believing that [appellee] intended to enlarge on the [contractual] limitation period . . . .’ [Cits.]” Simmons v. Blue Cross & Blue Shield &c., 176 Ga. App. 767, 768 (5) (337 SE2d 764) (1985). Accordingly, the trial court properly granted summary judgment to appellee. See id. at 768 (3, 5).

Decided April 1, 1991.

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, William S. Cowsert, for appellants.

Murray, Temple & Dinges, William D. Strickland, for appellee.

Judgment affirmed.

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


text:
    A91A0427.
    CALLICOTT v. REEVES & WAGNER CONSTRUCTION COMPANY, INC.
    (405 SE2d 116)
   McMurray, Presiding Judge.

This is a suit on a note. Defendant Callicott answered denying the allegations of the complaint filed by plaintiff Reeves & Wagner Construction Company, Inc. Plaintiff moved for summary judgment with a supporting affidavit establishing a prima facie case. Shortly before a hearing on plaintiff’s motion for summary judgment, defendant amended his answer so as to deny any consideration to defendant for the alleged indebtedness. Defendant appeals the grant of plaintiff’s motion for summary judgment. Held:

The note in question recites that it was given in lieu of a lien being filed and for payment of work performed by plaintiff for North Atlanta Homes, Inc. Defendant signed the note twice, first as president of North Atlanta Homes, Inc., and again individually.

“A person who lends his name to another party to a negotiable instrument in any capacity is an ‘accommodation party.’ [OCGA § 11-3-415.] He is an accommodation party regardless of whether he received any compensation for so acting or did so gratuitously, and he cannot legally assert lack of consideration for his accommodation since the value received by the principal debtor is the consideration for which the accommodation party bargained. [Cits.]” Motz v. Landmark First Nat. Bank &c., 154 Ga. App. 858, 859 (1) (270 SE2d 81). See also Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 857 (1a) (229 SE2d 765). Contrary to defendant’s contention, we do not view Mann Elec. Co. v. Webco Southern Corp., 194 Ga. App. 541 (390 SE2d 905), to be relevant to the case sub judice.

Plaintiff has requested this Court to assess ten percent damages against defendant for frivolous appeal pursuant to OCGA § 5-6-6. Plaintiff’s motion to assess damages is denied.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided April 1, 1991.

Goldstein & Redic, James A. Goldstein, Patrick R. Matarrese, for appellant.,

Fred J. Hanna, for appellee.


text:
    A91A0471.
    NELSON v. THE STATE.
    (405 SE2d 310)
   Pope, Judge.

Defendant Sean Nelson appeals his conviction of possession of cocaine with intent to distribute. We affirm.

At the time the offense occurred, defendant was a high school student who was on supervised probation for an earlier possession offense. The evidence shows a confidential informant notified the police that he had been at defendant’s residence earlier in the morning and that defendant had contraband in his bedroom. A police officer and an officer from the juvenile court probation office picked the defendant up from school and transported him to his residence. Pursuant to a search of defendant’s bedroom, the officers discovered, in the pocket of a suit coat in defendant’s closet, a bag containing a substance which later tested to be 5.03 grams of crack cocaine. They also found $159 in cash in another pocket of the coat.

The police chief testified the informant who provided the information was under indictment on six counts of selling cocaine to undercover agents and pleaded guilty to those counts shortly after defendant’s arrest. The informant called the police chief the day before defendant’s arrest with information which the chief did not consider specific enough to justify a search and the chief told the informant he would need more certain information before he could act. The following day the informant called back and told the chief that he had been to defendant’s residence that morning and he could now report with certainty that contraband could be found in a coat pocket in defendant’s closet.

1. In defendant’s first two enumerations he contends the evidence was insufficient to support the verdict and that he was entitled to a directed verdict of acquittal. He argues the evidence shows the informant had equal access to the closet as well as a motive for planting the drugs so he could serve as informant and be granted a lighter sentence for his offenses.

The equal access defense is based on the rule that “merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Citation and punctuation omitted.) Burrell v. State, 171 Ga. App. 648, 650 (6) (320 SE2d 810) (1984). For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found. Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989). In the case now before us, no evidence was presented to show the informant had access to defendant’s closet. Thus, we reject defendant’s argument that the evidence was insufficient to support his conviction. See Prescott v. State, 164 Ga. App. 671 (1) (297 SE2d 362) (1982). “A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary. See OCGA § 17-9-1.In the instant case, there was clearly sufficient evidence from which a rational trior of fact could find [defendant] guilty beyond a reasonable doubt. [Cit.] ” Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986). See also Watts v. State, 239 Ga. 725 (1) (238 SE2d 894) (1977); Lance v. State, 191 Ga. App. 701 (3) (382 SE2d 726) (1989).

2. Where, as here, the equal access defense was not reasonably raised by the evidence, no charge thereon is required. See Lance v. State, supra at (2); Brown v. State, 190 Ga. App. 324 (4) (378 SE2d 908) (1989). Therefore, the trial court did not err in refusing to give the requested equal access charge.

3. Defendant argues the trial court erred in denying his motion to suppress the evidence seized from his closet because the search was conducted without a warrant and without his consent. The evidence presented at the suppression hearing established that consent to search defendant’s residence was an express condition of his earlier probation sentence. Such consent is a valid waiver of a defendant’s Fourth Amendment right against warrantless searches. Allen v. State, 258 Ga. 424 (369 SE2d 909) (1988). When, as here, the search authorization provision of a probation order is invoked in good faith, the search must be considered a reasonable and lawful exercise of authority and the items seized as a result of such a search are admissible in evidence. See Luke v. State, 178 Ga. App. 614 (2) (344 SE2d 452) (1986).

4. During voir dire, one of the prospective jurors stated her opinion that the defendant would not have been charged with a crime if he were not guilty, and the judge ruled her disqualified. The judge, however, denied defendant’s motion for mistrial brought on the ground that the prospective juror’s comments had prejudiced the entire panel. “We hold the court did not err in denying mistrial. First, the appropriate remedy for correcting an error in the process of selecting a jury is disqualification of the jury, not the granting of a mistrial. See Moore v. State, 156 Ga. App. 92 (1) (274 SE2d 107) (1980). Even so, the juror’s statement would provide no ground for disqualifying the jury.” Johnson v. State, 188 Ga. App. 411, 412 (1) (373 SE2d 93) (1988). During the voir dire of the disqualified juror the judge instructed not only the juror in question but also the entire panel that defendant “sits before you as an innocent man . . . .” “[I]n view of the remedial action taken by the trial court, we find no error in its refusal to disqualify [the entire panel] on the basis of a comment made by one prospective juror . . . .” Parker v. State, 255 Ga. 167, 169 (3) (336 SE2d 242) (1985).

Decided April 1, 1991.

Gregory Homer, for appellant.

James L. Wiggins, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

5. Finally, defendant argues the trial court erred in failing to disqualify a potential juror who stated initially in response to questioning on voir dire that he would have a natural bias toward the State because he was previously employed by the police department. Upon further questioning, however, the juror stated he could set aside his previous experience and base his opinion in the case solely on the evidence presented. “While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. [Cit.] The trial court has the discretion as to whether to strike a juror for cause. [Cits.] We find no abuse of the trial court’s discretion.” Lattany v. State, 193 Ga. App. 438 (388 SE2d 23) (1989). See also Scott v. State, 193 Ga. App. 577 (2) (388 SE2d 416) (1989). Although the initial expression of bias by the juror in the case now before us is similar to that expressed by a juror in Parisie v. State, 178 Ga. App. 857 (2) (344 SE2d 727) (1986) (relied upon by the defendant), here, unlike in Parisie, the juror’s subsequent responses to questions posed by the prosecutor and the judge show he was sufficiently rehabilitated.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0517.
    CULBERTSON v. THE STATE.
    (405 SE2d 313)
   McMurray, Presiding Judge.

This is the second appearance of this case in this Court. Previously, this Court reversed defendant’s conviction because the trial court declined to give a written request to charge with respect to defendant’s failure to testify. Culbertson v. State, 193 Ga. App. 9, 11 (6) (386 SE2d 894).

Following a retrial, defendant, an inmate in a correctional facility, was again found guilty of five counts of aggravated assault upon a correctional officer and one count of possession of a weapon (a “waterbug”) by an inmate. He appeals. Held:

1. The general grounds are without merit. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of the five counts of aggravated assault upon a correctional officer and one count of possession of a weapon by an inmate beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Culbertson v. State, 193 Ga. App. 9, 10 (3, 4), supra.

The evidence demonstrated that the officers were placed in reasonable apprehension of immediately receiving a violent injury. That two officers merely expressed “concern” that they would be burned by the liquid which defendant threw at them does not mean that they were not placed in “reasonable apprehension.”

With regard to the possession of the weapon count, this Court previously determined that a “waterbug” (a homemade device for heating liquid, and bringing the liquid to a boil, by use of an electric current, which boiling liquid was thrown at the officers) can be a weapon under the circumstances involved in this case. Culbertson v. State, 193 Ga. App. 9, 10 (3), supra. We decline defendant’s invitation to reverse our previous determination.

2. One of the officers testified that on a previous occasion he had been burned by a liquid prepared by another inmate and that, therefore, he was afraid of the liquid which defendant was poised to throw. At that point, defense counsel interposed an “irrelevant” objection which the trial court overruled. Defendant contends the trial court erred in overruling the objection.

Assuming defense counsel’s objection was sufficient to invoke a ruling by the trial court (but see Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598)), we find no error. The evidence logically tended to show that the officer was placed in reasonable apprehension of receiving an immediate violent injury. It was not irrelevant. Wright v. State, 186 Ga. App. 231 (366 SE2d 834). Besides, another witness later testified without objection about the previous time when the officer was burned. Thus, even if the officer’s testimony was inadmissible, its admission was not erroneous since substantially the same evidence was admitted later without objection. Clarke v. State, 221 Ga. 206, 214 (144 SE2d 90). See also Shearer v. State, 259 Ga. 51, 54 (10a) (376 SE2d 194).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided April 1, 1991.

Cheney & Cheney, Curtis V. Cheney, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.


text:
    A91A0531.
    O’QUINN v. SOUTHEAST RADIO CORPORATION.
    (405 SE2d 314)
   Pope, Judge.

Plaintiff Southeast Radio Corporation filed this action against defendant Barnie O’Quinn, Jr., and others, seeking to domesticate a judgment obtained against the defendants in Florida. In an earlier appearance of this case, this court reversed the grant of summary judgment in favor of plaintiff (see O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608 (380 SE2d 487) (1989)) and, on remittitur to the trial court, the case proceeded to trial. Defendant appeals the judgment entered on the jury verdict in favor of plaintiff.

1. The only issue submitted for jury determination was defendant’s affirmative defense of insufficient service of process of the Florida complaint. Defendant argues the trial court erred in failing to submit to the jury certain other defenses raised by defendant’s pleadings, his counterclaim against plaintiff and cross-claim against the other defendants.

The record shows a pretrial order was entered by the trial judge which incorporated the document filed by defendant as his portion of the pretrial order. In that document, defendant preserved only the defense of insufficient service of process and his argument that the uniform enforcement of foreign judgments law is unconstitutional. He did not preserve, as issues to be tried, any other defenses or his counterclaim or cross-claim. A claim or issue, though previously raised in pleadings, is waived when it is omitted from the pretrial order. Long v. Marion, 257 Ga. 431 (2) (360 SE2d 255) (1987), and cases cited therein. Thus, defendant waived his right to a jury trial on those defenses and claims not preserved in the pretrial order.

While a party has the “right to have all questions of fact passed upon by a jury” (Williams v. Overstreet, 230 Ga. 112, 115 (III) (195 SE2d 906) (1973) (emphasis supplied)), “questions of law must be decided by the court.” Foster Wheeler Corp. v. Ga. Power Co., 140 Ga. App. 261, 267 (230 SE2d 494) (1976). Certainly, the defendant had no right to submit his constitutional challenge to the jury. While he did preserve his right to have the issue decided by the trial court, the record shows he presented neither evidence nor argument nor citation of authority in support of this issue. Thus, the issue was abandoned or waived and no error is shown.

2. The evidence showed the return of service for the Florida complaint was signed by a different employee of the Jeff Davis County Sheriff’s Department than the deputy sheriff who testified he served the defendant. Defendant failed to raise an objection at trial to the instruction given to the jury on the evidentiary significance of the return of service document. Thus, defendant waived any defect in the charge. See Little v. Little, 173 Ga. App. 116 (2) (325 SE2d 624) (1984). Because we find no blatant or prejudicial error in the charge, this enumeration provides no ground for reversing the judgment. See OCGA § 5-5-24 (c).

3. Defendant did raise a timely objection to the trial court’s charge on the burden of proof. After first giving a proper charge on the burden of proof, the court also charged: “If you find from a preponderance of the evidence that [defendant] was not personally served . . . then you should find for the defendant. If on the other hand you should find from a preponderance of the evidence that [defendant] was personally served . . . you should find for the plaintiff.” (Indention omitted.) Defendant argues the first of the two quoted sentences improperly shifted the burden of proof to defendant to prove by a preponderance of the evidence that he was not personally served.

An instruction which erroneously shifts the burden of proof of an issue may be reversible error. Whitehead v. Seymour, 120 Ga. App. 25 (1) (169 SE2d 369) (1969). However, “the rule is that in consideration of allegedly erroneous charges this court must look to the charge in its entirety.” State Hwy. Dept. v. Davis, 129 Ga. App. 142, 144 (1) (199 SE2d 275) (1973). The charge at issue in this case did not erroneously state that defendant had the burden of proof as to service of process, although, if this had been the only charge relating to the burden of proof it might have been misleading. The court, however, initially gave a proper charge that the plaintiff had the burden of proof in the case. In addition, after the objectionable charge was given the court properly instructed the jury that if it found by a preponderance of the evidence that defendant had been personally served, it should return a verdict for the plaintiff, but “if you find the defendant was not served, then the form of the verdict would be we, the jury, find in favor of the defendant.” Thus, the charge as a whole shows the court did not erroneously instruct the jury regarding the burden of proof.

Moreover, in response to defendant’s objection the judge explained that he believed the charge as a whole was accurate and asked the attorneys, “Do you want to leave it as is?” Defendant’s attorney did not respond to the question and indicated he had no other objections. Thus, the attorney appeared to acquiesce to the charge as a whole which, as outlined herein, we find was not misleading or erroneous.

Decided April 1, 1991.

Walters, Davis, Smith, Meeks & Pittman, W. Edward Meeks, Jr., for appellant.

Zorn & Caldwell, Jerry W. Caldwell, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.