text:
    A93A0789.
    BUTLER v. HUCKABEE.
    (434 SE2d 576)
   Andrews, Judge.

Butler, plaintiff below, appeals the trial court’s grant of summary judgment to defendant Huckabee in her negligence suit for damages arising from an automobile accident involving their two vehicles.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So viewed, the evidence was that around 7:00 a.m. on February 5, 1990, Butler was proceeding east on Covington Highway in her Prelude on her way to a car dealer to pick up her brother, Canada. The five-lane highway included a center left-turn lane and the posted speed limit was 45 mph. Huckabee was proceeding west in his Ford pickup on his way to his place of employment. He was in the left or inside lane, adjacent to the turn lane.

Butler had pulled into the center turn lane and stopped. Moore, also going to the car dealer, pulled up behind her and stopped. The sun was rising and it was clear and dry. Moore provided affidavits to both Butler and Huckabee. In the Huckabee one, Moore stated that “[p]rior to the collision I saw a Ford truck travelling westbound on Covington Highway in the left-most lane of westbound traffic. ... At the time of the collision and prior to it, there was nothing obstructing my view of oncoming traffic in the westbound lanes of Covington Highway, and I could clearly see the Ford truck approaching in the left-most lane of westbound traffic on Covington Highway. . . . The driver of the Ford truck did not have enough time to stop his vehicle prior to colliding with the Honda Prelude.” In the Butler one, Moore stated “[a]s the Honda Prelude began its left turn, I saw the Ford truck approaching. The collision occurred so suddenly, I do not know which of the following two (2) events first happened: (a) The Honda Prelude begins its turn and then I saw the Ford truck or; (b) the Ford truck approaching and then the Honda Prelude begin its turn. Although I recall seeing the Ford truck prior to the actual impact, I do not recall whether or not I saw the truck prior to the Honda Prelude commencing its turn.” (Emphasis supplied.)

Even giving all inferences to Butler, Moore’s testimony showed that he saw the truck before the impact and there was no obstruction which would have precluded Butler’s seeing it. Further, there was no time for Huckabee to stop before impact.

Photos taken immediately after the crash by Canada show that the Ford pickup ha.d its parking lights on. Butler contends that the truck’s headlights were not on before the crash, but she does not address the parking lights. The front of the truck was heavily damaged and the headlights do not appear to be on in the photos and we assume they were not.

The only admissible evidence of the speed of the truck was Huckabee’s statement that he was proceeding at 43 mph, within the speed limit. Several feet of straight skid marks were observed behind Huckabee’s truck before the point of impact in his lane.

2. In opposition to the motion for summary judgment, Butler submitted her own affidavit and acknowledged that she had no memory of the impact. The affidavit states that, “in [her] opinion,” the reason she did not see Huckabee was that he was driving without his headlights. She acknowledged that, since she did not see him, she could not determine whether he was speeding. In her deposition, she also acknowledged she could not say if excessive speed was involved, but “he must have been going awful fast for me not to see him coming.” Huckabee filed a motion to strike her affidavit, because it contained no facts, only inferences and opinion.

“ ‘(A)n inference cannot be based on evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ [Cit.] ‘(A) finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.’ [Cit.]” Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990); Leonard v. Bleser, 184 Ga. App. 600, 601 (362 SE2d 68) (1987). Therefore, there is no evidence that Huckabee was speeding at the time of the accident.

3. Huckabee would be entitled to summary judgment if he demonstrated plainly and palpably that his activities were not the proximate cause of the accident and that reasonable minds could not disagree on that point. Scoggins v. APAC-Georgia, 193 Ga. App. 465, 466 (388 SE2d 58) (1989). Also, summary judgment is appropriate when the absence of a defendant’s liability is established by plain, palpable, and indisputable evidence. Id.

The driver of a vehicle about to cross a roadway, as was Butler, “shall yield the right of way to all vehicles approaching on the roadway to be . . . crossed.” OCGA § 40-6-73. There is no evidence, besides the inadmissible conjecture of Butler, that Huckabee was doing anything improper at the time of the crash. Huckabee stated that he saw Butler in the turn lane, but this gave rise to no special duty on his part toward her, since “ ‘[a] driver having the right of way at an intersection [or elsewhere] has the right to assume that others will obey the rule of the road and will yield the right of way to him ((cits.)), and he has the right to proceed at a reasonable speed even though he sees another vehicle approaching. (Cit.)’ Meeks v. Johnson, 112 Ga. App. 760, 764 (146 SE2d 121) (1965).” Kicklighter v. Jones, 202 Ga. App. 654 (415 SE2d 302) (1992).

Decided July 16, 1993 —

Reconsideration denied July 29, 1993. —

Ronald L. Hilley, for appellant.

Federal, Goetz & Cronkright, Charles M. Goetz, Jr., Carter & Ansley, Christopher N. Shuman, Andrea J. Grossman, for appellee.

Since the materials relied upon by Huckabee in support of the motion for summary judgment pierced Butler’s pleadings, she was required to set forth specific facts showing there is a genuine issue for trial. This she did not do, beyond asking the trial court to make certain assumptions and impermissible inferences from circumstantial evidence. Scoggins, supra at 466-467.

Therefore, the grant of summary judgment to Huckabee was proper. Id.; see Kicklighter, supra.

Judgment affirmed.

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

       The fact that the traffic court judge found Butler not guilty beyond a reasonable doubt on the criminal charge of failure to yield based on his conclusion that there was a “question” regarding Huckabee’s speed at the time of impact is not binding on the question before us, nor is it entitled to any evidentiary weight.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A93A0815.
    SPARKMAN v. THE STATE. DREWRY v. THE STATE.
    A93A0818.
    (434 SE2d 564)
   Cooper, Judge.

Appellants were convicted of 34 counts of commercial gambling and one count of violating the Georgia Racketeer Influenced & Corrupt Organizations Act (RICO). They appeal from the judgments of conviction and sentence and assert identical enumerations of error.

1. In their first enumeration of error, appellants contend the trial court erred in denying their motion for directed verdict because the evidence did not authorize a finding that they promoted or operated a “lottery” as that activity is defined under Georgia law.

This court previously considered appellants’ contentions that their activities did not constitute a lottery in Drewry v. State, 201 Ga. App. 674 (1) (411 SE2d 898) (1991) wherein we reviewed the trial court’s denial of appellants’ general demurrer to the commercial gambling counts on the ground that the activity with which they were charged, known as the “numbers game” or “bug,” was not a “lottery” as defined by OCGA § 16-12-20 (4) and therefore did not constitute commercial gambling as defined in OCGA § 16-12-22 (a) (6). We concluded that the issue could not be determined without considering evidence outside the indictment; that the indictment sufficiently alleged a lottery; and that whether in fact there was a lottery would have to be determined at trial. See Drewry, supra at 675.

“Lottery” is defined by OCGA § 16-12-20 (4) as “any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win such prize, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or by some other name.” Appellants contend that the “essence of a lottery as defined by Georgia law is the distribution of one or more prizes among persons who have paid or promised a consideration for a chance to win such a prize. It contemplates a pool of prizes or money to be distributed among the players.” Appellants argue that the State’s proof was insufficient because the alleged gambling activity described by witnesses at trial did not include a pool from which prizes were distributed. However, there is no such requirement in the lottery statute, and appellants cite to none.

It is well established that the three ingredients necessary to constitute a lottery are prize, chance, and consideration. Boyd v. Piggly Wiggly Southern, 115 Ga. App. 628, 633 (155 SE2d 630) (1967). With respect to the commercial gambling counts the indictment charged that appellants “did unlawfully and intentionally promote, encourage and assist a lottery based upon wagers and bets placed on a three-digit number with the winning combination of numbers derived from selected digits within the total stocks and bonds closing figure of the New York Stock Exchange . . . , receive and record bets and offers to bet and did knowingly possess for transfer and transfer tickets papers, and other devices to serve as evidence of participation in such lottery, the three digit number and the date on which it was selected being material averments as to this incident of racketeering activity.” At trial, the State’s expert characterized appellants’ operation as a “three-digit lottery” which accepted bets in three-digit combinations with the winning bets being derived from the Wall Street Journal and the Illinois State Lottery. The expert testified that in the event of a “hit,” a winning bet, the amount a winner was paid depended on an elaborate calculation based on the number of bets placed on the winning number. He testified extensively about how such lotteries are structured, the paraphernalia used to operate such enterprises, and the evidence, i.e., “bug tickets,” cash, “hit sheets” and copies of the Wall Street Journal, seized incident to appellants’ arrests and pursuant to a search warrant of an apartment from which the lottery was operated and the relevance of that evidence to the appellants’ operation. In addition, while under police surveillance, Sparkman was observed participating in what the police described as several “drops,” in which packages containing suspected lottery tickets or cash were delivered to him. In a search of Sparkman’s car, the police discovered a receipt book with three-digit numbers written on it and loose tickets containing three-digit numbers of the sort used in three-digit lotteries. The evidence also revealed that Drewry’s role in the operation was the delivery of the payoff money to individuals who wrote the bets who would then pay the winners in the event of a “hit.” Drewry was also observed participating in a “drop.” Upon his arrest, a search of his car revealed a bag of envelopes containing “bug tickets,” cash and a collection of Wall Street Journal newspapers.

One who “[r]eceives, records, or forwards a bet or offer to bet” or “[s]ets up or promotes any lottery, sells or offers to sell, or knowingly possesses for transfer or transfers any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery” commits the offense of commercial gambling. OCGA § 16-12-22 (a) (2) and (6). In our view, the evidence amply demonstrated the operation of a lottery and thus was sufficient evidence to enable a rational trier of fact to find appellants guilty of commercial gambling beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellants also contend the trial court erred in refusing to charge the jury that even if they found appellants engaged in illegal acts, there could be no conviction unless those acts were a lottery. This enumeration is without merit. Not only was there sufficient evidence from which the jury could find appellants guilty of operating a lottery under Georgia law-but even if the evidence had not been such, convictions could also have been returned by the jury on the alternative allegation of commercial gambling alleged in the indictment — that appellants did unlawfully and intentionally “receive and record bets and offers to bet and did knowingly possess for transfer and transfer tickets, papers, and other devicés to serve as evidence of participation in such lottery. ...” Thus, the requested charge was not properly adjusted to the facts in this case. “ ‘ “If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.” ’ [Cit.]” Clayton v. State, 203 Ga. App. 843, 846 (5) (418 SE2d 610) (1992).

3. In their third enumeration of error, appellants contend the trial court erred in failing to charge the jury that the taking of bets which involved a specific payoff rather than a distribution of prizes is not a lottery. We previously rejected this contention of appellants in their first enumeration of error. Appellants cite OCGA § 16-12-20 as authority for this charge; however, that statute contains no such provision, nor have any decisions defined lottery as urged by appellants. This enumeration is also without merit.

4. Finally, appellants contend the trial court erred in refusing to direct a verdict in favor of appellants as to the RICO count after the court directed a verdict for one of appellants’ co-defendants who was alleged in the indictment to comprise the “enterprise.” Appellants contend that the dismissal of the co-defendant resulted in a fatal variance between the allegata and the probata because the indictment specifically alleged that the co-defendant was one of five individuals who comprised the enterprise. Appellants also contend the court erred in refusing to charge the jury that before there could be a conviction under the RICO count, it must find that the enterprise consisted of each person alleged in the indictment to constitute the enterprise. We disagree.

“ ‘[0]ur courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. “ ‘The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused.’ ” [Cits.] ... It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.’ [Cit.]” Lawhorn v. State, 200 Ga. App. 451, 453-454 (1) (408 SE2d 425) (1991). Count 1 of the indictment alleged that “[t]he enterprise was a group of individuals associated in fact, to wit: Joseph Drewry[,] Eugene Spark-man[,] Melissa Denise Harrison[,] John Frazier[,] and Judith Faye Thomas. . . .” “Enterprise” is defined by OCGA § 16-14-3 (6) as “any person, sole proprietorship, partnership, corporation, ... or group of individuals associated in fact although not a legal entity.” We conclude that the dismissal of Judith Faye Thomas did not result in a variance which affected appellants’ substantial rights. Without Thomas as a co-defendant, the indictment still alleged the existence of an enterprise, that is a “group of individuals associated in fact,” therefore, appellants were not subjected to the dangers of not being adequately informed of the charges against them so as to enable them to present defenses to the RICO charge or of being prosecuted again for the same offense. De Palma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969).

Judgments affirmed.

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

Decided July 15, 1993 —

Reconsideration denied July 29, 1993 —

Buafo & Gomez, Althea L. Buafo, for appellant (case no. A93A0815).

Groover & Childs, Denmark Groover, Jr., Frank H. Childs, Jr., for appellant (case no. A93A0818).

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.


author: Pope, Chief Judge.

text:
    A93A0827.
    KAPSCH et al. v. STOWERS et al.
    (434 SE2d 539)
   Pope, Chief Judge.

Plaintiffs/appellees Marjorie and Thomas Stowers filed a medical malpractice and loss of consortium action against defendants Donald M. Kapsch, M. D. and Peachtree General & Vascular Surgical Group, P. C., after Marjorie Stowers was allegedly injured during an operation performed by Dr. Kapsch. The jury returned a verdict for plaintiffs, and defendants filed a motion for j.n.o.v., or in the alternative, for new trial. The trial court denied defendants’ motions and they filed the present appeal to this court.

1. Defendants first contend the trial court erred in denying their motions for directed verdict and for j.n.o.v. because the record shows that plaintiffs improperly relied on the doctrine of res ipsa loquitur to prove their medical malpractice claim and because plaintiffs’ expert witnesses failed to state with particularity how Marjorie Stowers’ (hereafter plaintiff) injury occurred.

“Res ipsa loquitur is not applicable in medical malpractice cases in Georgia. Tn a medical malpractice case, “the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. ‘The . . . jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill.’ ” (Cits.)’ Homey v. Lawrence, 189 Ga. App. 376, 377 (2) (375 SE2d 629) (1988). Expert testimony must also set forth how or in what way the defendant deviated from the parameters of the acceptable professional conduct. Loving v. Nash, 182 Ga. App. 253 (1) (355 SE2d 448) (1987).” Austin v. Kaufman, 203 Ga. App. 704, 705 (1) (417 SE2d 660) (1992).

The record in this case shows that Dr. Kapsch performed a left subclavian bypass and left carotid endarterectomy on plaintiff in order to relieve blockages in her subclavian artery and left internal carotid artery. The day following the surgery plaintiff reported pain, loss of sensation and loss of use in her left neck, shoulder and arm. Dr. Kapsch referred plaintiff to Dr. Joseph Barnett, a neurological surgeon, for diagnosis and treatment. After plaintiff’s symptoms did not abate over time, Dr. Barnett performed an exploratory operation which, according to Dr. Barnett’s deposition testimony at trial, revealed scarring and a “kink” in the upper trunk of plaintiff’s left brachial plexus, a network of nerves running out of the spinal column to the arm.

Defendants do not dispute the evidence shows plaintiff suffered an injury to the left brachial plexus, but argue that plaintiffs’ experts relied on the fact of the injury alone to establish defendants’ negligence. Plaintiffs presented expert testimony from three doctors as to defendants’ negligence in this case. Dr. Barnett testified on direct examination that although the procedures performed by Dr. Kapsch were successful, the failure to protect the brachial plexus from injury was a deviation from the standard of care. Dr. Barnett opined that the “kink” he observed in the trunk of the brachial plexus “was most likely due to instrumentation in that area and most likely due to retraction as may have been necessary to expose other structures.” Dr. McKoy Rose testified that it is “unacceptable” for an injury to occur to the brachial plexus during the type of surgery performed here, and that the injury plaintiff suffered in this case is not a “risk” of the procedure. Dr. Rose also testified that based on the type of kink observed in the nerve it was his opinion that pressure, most likely from a retractor, had been placed on the nerve during the operation and that there had been a deviation from the standard of care in this case. Dr. Sheldon Burman gave similar testimony. He testified that this type of injury was “an avoidable complication” which should never occur. Dr. Burman further testified that the injury was due to direct trauma, probably from a retractor, which occurred while the patient was on the operating table.

We find no error in the denial of defendants’ motions for directed verdict and j.n.o.v. Plaintiffs presented expert testimony that the scarring and “kink” in the brachial plexus was not a usual or accepted risk of the type of procedure performed here, that such an injury was the result of some sort of trauma to the nerve during the operation, and that the surgeon’s failure to protect the nerve from injury during the procedure constitutes a deviation from the applicable standard of care. Moreover, although it is true, as defendants contend, that plaintiffs’ experts could not be certain that the injury was caused by the improper placement of a retractor during the procedure, and that Dr. Kapsch and the assisting surgeon testified and denied that a retractor was placed on the nerve during the operation, the expert testimony was clear that a “direct trauma” to plaintiff’s brachial plexus had occurred while plaintiff was on the operating table, and that based on the type of injury observed, it was most likely caused by the improper placement of a retractor during the operation. Cf. Loving v. Nash, supra.

“ ‘Negligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony. Although expert opinion testimony may be required in a medical malpractice case to prove the applicable standard of care and a breach thereof, we are aware of no rule which prevents circumstantial evidence from being used to prove those facts upon which the expert relies in formulating his opinion that such negligence occurred. It is for the jury to determine whether the facts upon which the expert bases his opinion do exist and, if so, whether the expert’s opinion that those facts constituted medical malpractice should be accepted. In determining medical malpractice, the jury may consider all the attendant facts or circumstances which may throw light on the ultimate question. . . . And where, measured by the method shown by medical witnesses to be negligence, the evidence shows a bad result, it is the province of the jury to say whether the result was caused by negligence.’ ” Austin v. Kaufman, 203 Ga. App. at 706.

“ ‘[A] motion for judgment n. o. v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n. o. v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.’ ” (Citations and punctuation omitted.) Famiglietti v. Brevard Medical &c., 197 Ga. App. 164 (1) (397 SE2d 720) (1990). We cannot say that the evidence demanded a verdict for defendants in this case. It follows that the trial court did not err in denying defendants’ motion for j.n.o.v. Austin v. Kaufman, 203 Ga. App. at 707.

2. Defendants also argue that the trial court erred in denying their motion in limine which would have prevented plaintiffs’ attorney from arguing to the jury that, at the time Dr. Barnett gave his deposition which was introduced into evidence at trial, he was represented by defense counsel in connection with another matter. The transcript shows that counsel for both parties mentioned during their opening statements to the jury that Dr. Barnett was represented by defense counsel at the time his deposition was taken, and that defense counsel admitted he represented Dr. Barnett at that time. However, plaintiffs did not introduce any evidence proving the representation during trial, and prior to closing arguments defendants moved to exclude any reference to defense counsel’s representation of Dr. Barnett during closing argument. See OCGA § 9-10-185. Plaintiffs’ counsel informed the court that it had been prepared to introduce evidence on this issue, but did not because defense counsel had admitted the representation during his opening remarks to the jury. The trial court ruled that it would give plaintiffs’ counsel “a little leeway” and that counsel could mention the fact of representation to the jury but that any argument beyond that would be unfair to the defendants because no evidence had been presented. Plaintiffs’ counsel mentioned the representation during his closing remarks, and attempted also to argue what effect the representation might have had on the witness’ testimony. Defense counsel objected at this point and the court responded “All right. Go ahead.” Plaintiffs’ counsel then resumed his argument, but made no further mention of opposing counsel’s representation of the witness.

Decided July 13, 1993 —

Reconsideration denied July 29, 1993.

Downey, Cleveland, Parker, Williams & Davis, Russell B. Davis, W. Curtis Anderson, for appellants.

Based on the foregoing, we conclude the trial court properly exercised its discretion in this case to ensure the proceedings were fairly conducted to both sides. “[T]he latitude allowed . . . was such that no harmful effect resulted to either [party]. Accordingly, a [new trial] will not be granted on this ground.” Ga. Northern R. Co. v. Hathcock, 93 Ga. App. 72, 75 (3) (91 SE2d 145) (1955).

3. Contrary to defendants’ contention otherwise, the trial court did not err by combining defendants’ request to charge numbers 11 through 14 on unfavorable results. See Smoky, Inc. v. McCray, 196 Ga. App. 650 (5) (396 SE2d 794) (1990). Moreover, we agree that a charge on hindsight was not authorized by the evidence in this case and thus the trial court did not err by refusing to give defendants’ request to charge on hindsight as they contend. McCoy v. Alvista Care Home, 194 Ga. App. 599 (391 SE2d 419) (1990).

4. (a) The trial court did not err in qualifying the jury as to defendants’ liability insurance carrier. Weatherbee v. Hutcheson, 114 Ga. App. 761 (1) (152 SE2d 715) (1966).

(b) Defendants also urge as error the denial of their motion for mistrial after one of plaintiffs’ experts made reference to malpractice insurance rates. The record shows, however, that the complained of testimony was elicited on cross-examination by defendants and that, contrary to defendants’ assertions on appeal, the witness’ answer was responsive to the question asked. This enumeration is, therefore, without merit.

5. Based on the foregoing, the trial court did not err in denying defendants’ motion for new trial.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Jean E. Johnson, Jr., Lance A. Cooper, for appellees.


author: Birdsong, Presiding Judge. Andrews, Judge,

text:
    A93A0006.
    WRIGHT v. TRANSUS, INC. et al.
    (434 SE2d 786)
   Birdsong, Presiding Judge.

This is an appeal from the grant of summary judgments in this personal injury suit in favor of Transus, Inc., American International Insurance Company (American Insurance), and Protective Insurance Company (Protective Insurance).

Plaintiff Vernon Wright alleged his vehicle was struck in the parking lot of a Hardee’s restaurant by a tractor-trailer rig operated by Cardwell, acting in the employment of Transus, Inc. and rendering Transus liable as respondeat superior. The insurers were sued under OCGA § 46-7-12 (e) of the Public Utilities & Transportation Act, as to joinder of insurers of a motor common carrier. The summary judgments included a finding that American Insurance and Protective Insurance were not proper parties and suit against them was dismissed. Held:

1. Transus convinced the trial court that Cardwell was not a Transus employee but operated his tractor-trailer rig as an independent contractor under a lease with Transus, and he was not under the control or direction of Transus or performing any service for Transus at the time of the accident, at about 4:00 p.m. on July 20, 1987. On the day of the collision at 4:30 a.m., Cardwell signed in on the “In and Out Terminal Register” at the Transus terminal in Albany and dropped a loaded trailer at the terminal. Cardwell then went to the sleeping quarters provided by Transus for drivers. He slept about eight hours. Cardwell was considered by Transus to be off-duty until he was dispatched again with a trailer load. On this day, Cardwell was not dispatched again by Transus until 8:45 p.m. After waking at the Transus sleeping quarters, Cardwell took the tractor for servicing at Carlton Caterpillar. Then he drove the rig to Hardee’s to get a sandwich, in anticipation of going back to the Transus terminal to wait for another dispatched load.

Cardwell was not compensated for mileage incurred by his trailer unless he was under dispatch for Transus at the time, and Cardwell, not Transus, was billed for the servicing to the rig by Carlton Caterpillar. Transus contends that the lease agreement establishes a relationship of carrier/independent contractor and not employer/employee; that neither was agent of the other; that Transus had no authority to control operation and maintenance of the rig except as required by law to accomplish the purposes of the lease agreement; that Cardwell furnished all labor and supplies to operate the rig, and performed all services necessary in the transportation of such commodities as Transus may direct. Transus contends the lease required Cardwell to keep the rig in safe condition and to bear the expense of all fuel, parts, service, fees and taxes, and to maintain “bobtail” liability insurance. He purchased his own diesel fuel, truck license and the PSC plate which authorizes Transus to operate in Georgia. Card-well did not drive for anyone other than Transus, but Transus alleges that Cardwell stated he would have driven for someone else if he had the time.

Appellees contend no issue of material fact remains that Cardwell was an independent contractor and sole owner/operator of the tractor-rig, and that he was on a purely personal mission and had not been dispatched or given an assignment by Transus at the time of this collision and therefore was not engaged in the furtherance of the business of Transus.

The material issues in this case are similar in principle to those of Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706 (371 SE2d 252). As in Nationwide, the motor common carrier was leased to the common carrier, and was operated by the owner/lessor. The surface issue in Nationwide of insurance coverage was decided on the underlying principle that under ICC requirements for operation and continued certification of the carrier’s business, the carrier’s lease was required to have “ ‘exclusive possession, control and use of the equipment for the duration of the lease’ and to ‘assume complete responsibility for the operation of the equipment for the duration of the lease.’ ” Id. at 710. Even though the driver (an employee of the owner/lessor) had finished his assignment for the day and had driven the carrier home, he did so with the carrier/lessee’s knowledge and permission as part of his work routine. As said in Nationwide, in view of ICC regulations Transus can hardly contend that it was none of its business where Cardwell took the truck or what he did with it when he was not using it strictly in the performance of Transus’ business, as Transus was by law required to exercise control.

The facts in this case are even more persuasive of this inference than those in Nationwide. Under ICC regulations this motor carrier was under the control of Transus. Transus’ business required it to maintain a terminal in Albany and sleeping quarters for the drivers of the vehicles engaged in the operation of its business. Cardwell was in Albany to deliver a load at the Transus terminal and to pick up another when he was dispatched; to facilitate the regular operation of this pattern, Cardwell drove the carrier to the sleeping quarters provided by Transus. He was, in effect, on call for the next dispatch; certainly this, at least, is a material issue of fact.

If Cardwell was to eat a meal in Albany, he had either to walk, hire a taxi, rent a car, or drive the tractor-rig to the restaurant. The evidence shows beyond any material issue of fact that it was intended that the driver (who in this case was also the owner/lessor of the vehicle) would use the vehicle in the time between delivering a load to the Transus terminal and setting out on another dispatch, and would do so in anticipation of being called at any time for another dispatch. He remained in Albany because he was awaiting his next dispatch, and in fact he was dispatched again later that day after this collision. It cannot be said that Cardwell’s interlude at the restaurant was “purely personal” as a matter of law, as it was part of Transus’ operational routine while he was in Albany awaiting Transus’ next dispatch. Unless he intended to abandon his duties of employment, he could not leave Albany and was required to conduct his personal business, including driving to a restaurant to eat, by using the vehicle. At least, there are issues of fact as to these matters.

We are not advised of any restriction placed by Transus on a driver’s use of its leased common carrier to go to a restaurant while awaiting his next dispatch, or that he violated any rule by doing so. Contrary to the inferences Transus would have us draw, the reasonable inference is that everything Cardwell did while in Albany was in pursuit of Transus’ business, as he was there solely to await the next dispatch, whenever that might occur at Transus’ discretion. When Cardwell went to sleep, he slept at Transus’ premises; when he awoke, he took the vehicle to be serviced, in pursuit of the operation of Transus’ business, and although Cardwell was in the restaurant parking lot to eat lunch, he was awaiting his next dispatch, and he was therefore “ ‘at that time engaged in serving his master.’ ” West Point Pepperell v. Knowles, 132 Ga. App. 253, 256 (208 SE2d 17).

Certainly the lease of a vehicle by the carrier, as opposed to its ownership, does not control the question whether the driver was engaged in the carrier’s business, under the evidence in this case.

Viewing all the evidence most indulgently in favor of the respondent on appellees’ motions for summary judgment, construing the evidence most strongly against them as movants, and giving the party opposing the motion the benefit of all inferences fairly and reasonably drawn in support of his case (see generally Brandywine Townhouses v. Morrison, 200 Ga. App. 425 (408 SE2d 422)), we find the trial court erred in granting summary judgment to appellees on the issue of respondeat superior liability. This is an issue for the jury.

2. It follows that the trial court erred in granting judgment to the insurers of motor common carriers, dismissing them from the suit; plaintiff was entitled to bring a direct action against them under OCGA § 46-7-12 (e). Any issue as to constitutionality of the statute is in the exclusive jurisdiction of the Supreme Court on appeal (Kolker v. State, 193 Ga. App. 306 (387 SE2d 597)), and in any case, is not properly raised on appeal where the trial court did not expressly consider and rule upon it.

Judgment reversed.

Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., concur. Beasley, P. J., Andrews and Smith, JJ., concur in part and dissent in part. Johnson, J., not participating.

Andrews, Judge,

concurring in part and dissenting in part.

Because I believe that plaintiff Wright failed to show a material issue of fact with regard to whether Cardwell was on company business or a personal mission at the time of the accident, I respectfully dissent. Also, I do not agree with the rationale put forward by the majority regarding analysis of the relationship between an owner/lessor and a trucking company/lessee engaged in intrastate or interstate commerce.

1. The issue of responsibility for the actions of a driver who is not the owner of the vehicle but is using it in the course of his employment when an accident occurs can be seen as a continuum. At its basic level, there is the common law master-servant analysis under the doctrine of “respondeat superior,” in which the inquiry is whether the servant (employee) was at the time of the injury acting within the scope of his employment and on the business of the master (employer). Braddy v. Collins Plumbing &c., 204 Ga. App. 862, 864 (420 SE2d 806) (1992); Viau v. Fred Dean, Inc., 203 Ga. App. 801, 802 (2) (418 SE2d 604) (1992).

When the issue of intrastate or interstate commerce and federal and state regulation thereof are added to the mix, the inquiry becomes somewhat more complicated. This is in part attributable to the common business practice of trucking companies which lease tractors from owner/drivers who then drive for the company, as here with Transus and Cardwell, or hire other drivers to drive for them. See Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (360 SE2d 280) (1987).

Under OCGA Title 46, Chapter 7, motor contract carriers and motor common carriers are required to either post a bond or provide a policy of insurance “ ‘for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents.’ OCGA §§ 46-7-12 (a) (c); 46-7-58 (a) (c).” Ellerbee, supra at 828 (1).

Likewise, the Interstate Commerce Commission regulations provide that the carrier’s lease must require it to have “ ‘exclusive possession, control and use of the equipment for the duration of the lease,’ and to ‘assume complete responsibility for the operation of the equipment for the duration of the lease.’ ” Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706, 710 (1) (371 SE2d 252) (1988).

As stated in Simmons v. King, 478 F2d 857 (5th Cir. 1973), and adopted by this court in Nationwide, supra, “ ‘the ICC carrier’s liability for equipment and drivers covered by leasing arrangements is not governed by the traditional common law doctrine of master-servant relationships and respondeat superior.’ [Simmons] at 867. The Simmons court [held] that under the statutorily mandated terms of the lease, the carrier lessee had ‘assumed exclusive possession, control, and use of the vehicle and responsibility to the public, (the driver) became his statutory employee, and as such (the carrier) was vicariously liable as a matter of law for the negligence of (the driver).’ ” Nationwide, supra at 712 (3). This theory obviates the need for the injured person to factually prove that, despite the use of “lessor-lessee” language which generally gives rise to independent contractor status, the legal relationship of the owner/driver and the trucking company for purposes of compensating the injured person is that of employer-employee.

The injured person must, however, even in this context, show that the accident happened while the driver was “on business of the master [trucking company].” Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983).

2. In the present case, Transus, defendant below, moved for summary judgment on this issue, putting forth the affidavit of Cardwell, the owner/driver, that he was on a personal mission of his own, unconnected with Transus, when the accident occurred. He swore that he had checked his load in at the Transus terminal, dropped the trailer with the load there, gone to have his tractor serviced, and then to have lunch, which is when the accident occurred. He was solely responsible for the maintenance of the tractor and was also required to maintain insurance (here provided by American International) for periods when he was “bobtailing.” Also submitted was the affidavit of the Transus dispatcher that Cardwell had checked out at Transus and was not under the company’s control until later dispatched with another load, hours after the accident.

“In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [cit.].” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

“Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); [cit.].” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987).

Here, Wright submitted no affidavits or depositions to support his contention that Wright was in the service of Transus at the time of the accident.

Therefore, I must conclude that the grant of summary judgment to Transus and its insurer, Protective Insurance Company, was proper. Coffee Chrysler-&c. v. Nasworthy, 198 Ga. App. 757, 758 (403 SE2d 453) (1991); Wittig v. Spa Lady, 182 Ga. App. 689, 690 (356 SE2d 665) (1987); see Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119, 120 (1) (421 SE2d 284) (1992). Compare U. S. Fidelity &c. v. Skinner, 188 Ga. 823 (5 SE2d 9) (1939) with Edwards v. State of Ga., 173 Ga. App. 87 (325 SE2d 437) (1984).

3. The issue of Cardwell and his “bobtail” insurer, American International, however, is still before the court below since the conclusion that he was not on company business at the time of the wreck leaves the issue of his personal liability for determination.

I am authorized to state that Presiding Judge Beasley and Judge Smith join in this opinion.

On Motion for Reconsideration.

Appellees now contend that a footnote in the dissent has alerted them to the alleged fact that the complete record considered by the trial court was not sent up. Appellees have waived any such complaint under Court of Appeals Rule 47. Appellees contend that we should make an exception to this rule because “through the exercise of self help, the appellees have tried to stay abreast of this matter and have tried to comply with this Court’s rules, unlike the appellant who appears to have ignored them.” This assertion begs the rule and creates no exception to it.

Further, the great quantity and variety of factual matters which appellees argue entitled them to judgment as a matter of law merely prove that issues of fact remain for the jury, construing the evidence in favor of appellants as respondents to the motion for summary judgment. That the case cannot be decided as a matter of law is evidenced by the differences of opinion of the members of this court.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Floyd Mincey, Stephanie D. Blair, for appellant.

Vernon Wright, pro se.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, for appellees.

Motion for reconsideration denied.

       Prior to federal and state regulation of interstate and intrastate commerce, the common law rules of bailment controlled these issues. OCGA § 44-12-60 et seq.; see Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 878 (1) (311 SE2d 193) (1983).

       Driving the tractor without a trailer attached to it.

       While the record here contains an order incorporating the record of another suit between these parties which had been dismissed and later the present suit filed, none of that earlier record was presented here by appellant Wright and he has not fulfilled his burden to show conflicts in the record presented to this court. Wiggley v. State, 204 Ga. App. 583, 584 (2) (420 SE2d 82) (1992), citing Williams v. Lemon, 194 Ga. App. 249, 252 (3) (390 SE2d 89) (1990).


author: Andrews, Judge. Pope, Chief Judge,

text:
    A93A0016.
    RHODES v. TOP DOG, INC.
    (434 SE2d 578)
   Andrews, Judge.

Top Dog, Inc. brought suit against defendant/appellant Jan Rhodes seeking to recover monies allegedly loaned to Rhodes, its employee, which he failed to repay. According to the complaint, Rhodes was to repay the amounts owed from commissions he earned while in Top Dog’s employ.

The case was tried before the court sitting without a jury and was not reported. Both sides agree here, however, that Top Dog introduced five checks made payable to Rhodes. The checks introduced at trial contained the following notations: check no. 262 “comm [illegible] to be repaid in full”; check no. 300 “commission advance to be repaid”; check no. 312 “advance on commission to be repaid in full”; check no. 325 “advance to be repaid in full”; check no. 369 “comm advance to be repaid [illegible].” Judgment was entered for Top Dog on July 8, 1991. On August 5, 1991, Rhodes filed a motion to set aside the verdict or, in the alternative, motion for new trial. In support of his motions Rhodes filed copies of the five “cancelled” checks, which he had obtained from Top Dog’s bank following trial.

Bradley, the president of Top Dog, wrote the checks in issue and his testimony at trial as to whether “to be repaid” was on the checks when they were presented to Rhodes was uncertain. He testified that he could not recall specifically these checks, but that it was not unusual for him to make notations such as this on company checks after they were returned to him by the bank after cashing.

Rhodes, originally proceeding pro se, was represented by counsel at trial and here. According to counsel for Top Dog and not disputed on the record here, the issue of when the language was placed on the check was addressed below. No discovery was made by Rhodes before the trial, but the judge offered a continuance in order to afford an opportunity to obtain bank copies of the checks, which continuance was refused by Rhodes’ counsel.

“[T]he grounds upon which [Rhodes] sought to set aside . . . , i.e., ‘fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant,’ are equitable in nature, being identical to those which previously constituted the basis for a complaint in equity to set aside a judgment. In 1986, OCGA § 9-11-60 (d) was amended so as to authorize the bringing of a motion to set aside on these grounds. . . . [Cits.] ‘ “(A) petition in equity would have been to no avail if [Rhodes] knew or should have in the exercise of reasonable diligence discovered th(e) ground (asserted). (Cit.) This same diligence rule applies where appellant uses a motion to set aside the judgment and he is precluded from using the ground which he had known or could have discovered through reasonable diligence.” (Cits.)’ Marshall v. Marshall, 257 Ga. 494, 495 (360 SE2d 572) (1987).” Lee v. Henson, 198 Ga. App. 701, 702 (402 SE2d 548) (1991).

While the court’s specific finding of fact that the notation was on the checks when they were presented to Rhodes may be erroneous and not supported by adequate evidence in the record, that conclusion alone is not enough to merit reversal of the judgment. The primary factual issue before the court was whether there was an oral agreement between the parties regarding the source of the repayment, i.e., solely from future earned commissions payable by Top Dog or from other funds of Rhodes as well. While Brady’s testimony concerning when the notation was placed on the checks was uncertain, he apparently testified that the agreement was that the money would be repaid in its entirety from whatever source and, whenever he added the notation to the check, it supported his understanding of the agreement. Rhodes’ contention was that the source for repayment was only future earned commissions and since he did not earn that much, he did not owe it. See, e.g., Biles v. Home Interiors &c., 112 Ga. App. 21 (143 SE2d 566) (1965). Had the trial judge concluded, as a matter of fact, that the notations were not on the checks when presented to Rhodes, as contended by him and shown by the new copies, this still would not mandate a finding in Rhodes’ favor on the motion pursuant to OCGA § 9-11-60 (d) (2), as discussed above, since that evidence was previously available to him. Nor would it prove that the advances or draws were part of the original hiring agreement as opposed to a separate loan situation.

Likewise, there is no basis for the grant of a new trial on the basis of newly discovered evidence pursuant to OCGA § 5-5-23. Boatwright v. Eddings, 180 Ga. App. 742 (350 SE2d 291) (1986).

A decision right for any reason should not be set aside and the judgment is affirmed. Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 919 (7) (423 SE2d 257) (1992), citing Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978).

Judgment affirmed.

McMurray, P. J., Beasley, P. J., Cooper and Smith, JJ., concur. Pope, C. J., Birdsong, P. J., and Blackburn, J., dissent. Johnson, J., not participating.

Pope, Chief Judge,

dissenting.

I dissent. In rendering judgment for plaintiff in this case the trial court expressly, and erroneously,* ** *6found that the checks contained the “to be repaid” language when presented to the defendant. Based on this erroneous finding the trial court also found that by accepting the checks so marked the defendant expressly agreed to repay his advances in full and that the source of repayment was not limited to commissions defendant might earn from plaintiff.

“The guiding principles are that findings of fact by the trial court will not be set aside unless they are clearly erroneous (OCGA § 9-11-[52]) and the trial court’s findings of fact are as binding on the parties as a jury verdict. Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6) [(1983]).” Intertrust Corp. v. Fischer Imaging, Corp., 198 Ga. App. 812, 813-814 (403 SE2d 94) (1991). “The finding of fact by the trial court in non-jury cases will not be set aside on appeal unless they are wholly unsupported by the evidence or are clearly erroneous. [Cit.]” Davis v. Hosp. Auth., 167 Ga. App. 304, 305 (306 SE2d 306) (1983). The trial court’s findings of fact in this case are clearly erroneous, and I believe the judgment must be reversed.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Frantz, Sanders & Grattan, Donald B. Deloach, for appellant.

Goldstein, Schatten & Perry, Lee S. Goldstein, James H. Greenwood, for appellee.

The majority finds no reversible error based in part on the conclusion that the defendant did not exercise due diligence in obtaining the checks prior to trial. Hówever, such a finding necessarily presumes that the defendant was required to anticipate that the notations on the checks had been altered after they were presented to him. There is no reason that the defendant should have anticipated that the checks introduced at trial would be different from the ones which were presented to him by the plaintiff, and thus no reason to conclude he did not exercise diligence in obtaining copies of the can-celled checks prior to trial.

Moreover, I cannot agree with the majority’s conclusion that the trial court’s order may have been supported by other evidence presented at trial which is unavailable to us because we have no transcript of the proceedings. As stated above, the trial court’s judgment for the plaintiff was based on the finding that the “to be repaid” language was placed on the checks when they were presented to defendant. No matter what evidence the court may have had before it, the record shows it relied on an erroneous finding of fact in rendering its judgment for plaintiff. Inasmuch as the trial court’s determination of the ultimate issue to be decided in this case was based on an erroneous finding of fact, I believe the judgment must be reversed.

I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this dissent.

       It is not disputed that the notations regarding repayment are in his handwriting, the same as that on the rest of the check faces.

       Since check no. 300 was marked “deposit only” and endorsed by both Mr. and Mrs. Rhodes, it obviously went into his own checking account, also maintained at Barnett Bank, the issuing bank. Copies of the deposit items, including check no. 300, were available to him on his own account without even the necessity of formal discovery proceedings. No reason for not having obtained the copies of all the checks, including this one, in the months preceding trial is offered.

       This case and the entire line of cases relied upon by Rhodes below was limited in the whole court case of Cota v. Alexander, 123 Ga. App. 219 (180 SE2d 293) (1971). This court restricted it to situations where a “draw account” was a part of the original hiring agreement or, at the time of the original hiring agreement, there was agreement that advances would be made on future earned commissions, not to situations where, after employment, the employer makes personal loans to an employee from future advances. See Boushell v. Foxworth, 143 Ga. App. 646, 647 (2) (239 SE2d 539) (1977).

       In this case, the copies of the checks obtained from plaintiffs bank show that the notation concerning repayment had not been on the checks at the time the checks were presented to the bank for payment. It necessarily and indisputably follows that'the notations had not been placed on the checks when presented to the defendant and that such notations were placed on the checks sometime after they were negotiated but before they were introduced into evidence at trial.

       The trial court’s order stated the following: “After reviewing the evidence presented to the Court, the Court finds that the checks which were introduced into evidence [by Plaintiff] did contain the language, “to be repaid” when presented to the Defendant. Consequently, by accepting the checks, the Defendant expressly agreed to repay his advances in full and the source of repayment was not limited to commissions earned for sales on behalf of Plaintiff.” (Emphasis supplied.)


author: Smith, Judge. Blackburn, Judge,

text:
    A93A0042.
    PAYNE v. THE STATE.
    (434 SE2d 543)
   Smith, Judge.

Joel Payne was tried before a jury and found guilty of driving with a suspended license, failure to maintain lane, DUI, and speeding. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. At the conclusion of the State’s evidence, Payne unsuccessfully moved to dismiss the charge of driving with a suspended license. His contention is that while his license for a time had been suspended, the license had been reinstated by the Department of Public Safety prior to his arrest.

The particular suspension violation relied upon by the State is a DUI conviction dated December 14, 1988. At the time of this DUI conviction, former OCGA § 40-5-70 (a) expressly provided that “ ‘(t)he driver’s license of any person convicted of violating Code Section 40-6-391 (the DUI provision) shall by operation of law be suspended, and such suspension shall be subject to [certain] terms and conditions. . . .’ (Emphasis supplied.)” Former OCGA § 40-5-70 (c) “state [d] that the period of suspension [began] on the date of the DUI conviction. It thus appears that the legislature intended OCGA § 40-5-70 to effectuate suspension or revocation automatically upon a conviction for DUI, the notice being the trial for violation of OCGA § 40-6-391; i.e., notice ‘by operation of law.’ ” Hale v. State, 188 Ga. App. 524, 525 (1) (373 SE2d 250) (1988).

Because the 1988 DUI conviction was Payne’s second within five years, the length of time his license was suspended was three years. Former OCGA § 40-5-70 (b) (1) (B) (now codified at OCGA § 40-5-63 (a) (2)). The date of arrest in the case was August 24, 1991, less than three years after the date of his 1988 DUI conviction. However, former OCGA § 40-5-70 (b) (1) (B) provided that, “[a]t the end of 120 days, the person [whose driver’s license has been suspended by operation of law under this section] may apply to the Department of Public Safety for reinstatement of his driver’s license,” and provided further that the license “shall be reinstated” if the person submitted proof of compliance with certain requirements. The effect of this procedure for reinstatement is two-fold. First is the creation of a minimum mandatory suspension of driving privileges for 120 days. Second is the creation of the right to reinstatement upon proof of compliance with all of the applicable requirements and conditions, including the passage of the minimum mandatory period of suspension.

The portion of Payne’s driving record from the Department of Public Safety admitted into evidence does not show that the suspension resulting from the 1988 DUI conviction had ended or that Payne’s driver’s license had ever been reinstated, but it does show that he was issued a license on April 8, 1989. This date is less than 120 days after the DUI conviction, and so was issued at a time when Payne was not yet eligible to apply for reinstatement.

“Any resident or nonresident whose driver’s license or privilege to operate a motor vehicle in this state has been suspended or revoked as provided in this chapter shall not operate a motor vehicle in this state under a license or permit issued by any other jurisdiction or otherwise during such suspension or after such revocation until the license is restored when and as permitted under this chapter.” (Emphasis supplied.) OCGA § 40-5-65. Accordingly, the premature issuance of a driver’s license to Payne on April 8, 1989 was not adequate to show as a matter of law that appellant’s driving privileges had been properly reinstated. Nor does that premature issuance refute the evidence that he drove “a motor vehicle on any public highway of this state at a time when his privilege to do so [was] suspended,” OCGA § 40-5-121 (a), and before having his license reinstated when and as permitted by former OCGA § 40-5-70 (b) (1) (B). See Goblet v. State, 174 Ga. App. 675 (331 SE2d 56) (1985). “Administrative lapses notwithstanding, the fact that appellant had obtained a driver’s license did not give him permission to drive, in contravention of [OCGA § 40-5-63 (a) (2)].” Walls v. State, 167 Ga. App. 276 (306 SE2d 371) (1983). “[I]t may be said that [appellant] did not intend to violate the law, and did not know that he was doing so. The reply is that [OCGA § 1-3-6] declares that ‘Laws after promulgation are obligatory upon all inhabitants of this state, and ignorance of the law excuses no one.’ ” Gurley v. State, 65 Ga. 157, 158 (1880). “The general grounds are therefore without merit.” Goblet v. State, supra at 676. .

2. The trial court admitted into evidence that portion of Payne’s driving record which showed his prior conviction for DUI. Although this evidentiary ruling is enumerated as error, the record reveals that the grounds for objection argued before this court were not preserved for appellate review. Ortiz v. State, 189 Ga. App. 428 (1) (375 SE2d 891) (1988). Moreover, this procedure was expressly approved in Hale, supra at 526 (2), as the proper method for proving the license suspension in fact.

3. Payne’s objection to testimony he contends impermissibly placed his character in evidence presents nothing for review because that ground was not raised below. Jennings v. State, 169 Ga. App. 421 (312 SE2d 877) (1984). See also Edwards v. State, 188 Ga. App. 667, 670-671 (7) (374 SE2d 97) (1988).

4. Payne also contends that the prosecution failed to reveal evidence in its possession which was favorable to him. Payne made no written motion for disclosure of favorable evidence, although the record shows a written certification of the State’s having provided him with copies of the accusations, a list of witnesses, and a summary of his custodial statement. Payne did not move for an in camera inspection of the State’s file. The only such favorable evidence now specified by him is the April 8, 1989 issuance of a driver’s, license. It is undisputed that Payne already knew that a driver’s license had been issued subsequent to the 1988 DUI conviction. More importantly, evidence that the license was issued on April 8, 1989 is not favorable to his case, for it showed his ineligibility for reinstatement. Where information is “not specifically requested in a motion pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), a prosecutor’s nondisclosure of evidence [impairs] a defendant’s right to a fair trial only if the evidence not disclosed is material in the sense that it might create in the minds of the jurors a reasonable doubt that did not otherwise exist. [Cit.]” (Emphasis supplied.) Rogers v. State, 257 Ga. 590, 592 (3) (361 SE2d 814) (1987). This evidence was not material to Payne’s case.

5. Payne also enumerates the trial court’s exclusion of a certified statement showing that he completed an alcohol risk reduction program on November 3, 1989, as required for reinstatement of his license under OCGA § 40-5-63 (a) (2).

“[E] ven. if we conceded that [the] exclusion [of the certificate] from evidence was erroneous, we are convinced that such exclusion . . . was not harmful error so as to require a reversal. The appellant’s [mother] testified [that he went to school and received a certificate and that she took him to show his certificate, pay his money and reinstate his driver’s license], and her testimony on this subject was, in our opinion, of more probative value tha[n] the excluded [document].” Watson v. State, 229 Ga. 787, 790 (194 SE2d 407) (1972). See also State v. Sears, 202 Ga. App. 352, 353 (3) (414 SE2d 494) (1991).

Judgments affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur fully with Divisions 2 through 5 of the majority opinion.

I concur specially with Division 1 of the majority opinion. Had the evidence supported that which defendant contended, but failed to prove, then reversal would be required of his conviction of driving with a suspended license. Defendant stated that he applied for reinstatement of his suspended license and it was issued on April 8, 1989, 115 days after suspension. The license was issued five days before he was eligible for reinstatement pursuant to OCGA § 40-5-70 (b) (1) (B) (now codified as OCGA § 40-5-63 (a) (2)).

Defendant was arrested on the subject incident approximately 16 months following receipt of his reissued license.

As the court properly stated, it was a jury question as to whether or not defendant’s license had been reinstated and his innocence or guilt of the charge of driving with license in suspension. The jury weighed the evidence, which did not require acquittal of the defendant and decided these issues against defendant.

Decided July 13, 1993 —

Reconsideration denied July 30, 1993.

John H. Bedford, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.

I specially concur to the extent that the majority opinion imports that defendant would have been guilty of driving with license in suspension, even if the evidence conclusively showed that he had otherwise properly applied for reinstatement of his license, albeit earlier than authorized by statute, and his license had been reissued by the State, with full knowledge of the facts, pursuant to Chapter 570-3 of the Rules of the Department of Public Safety. It is the opinion of this writer that the defendant would not be guilty of driving with license in suspension where he has been charged with such an offense more than 120 days following the original suspension where the license had been reinstated, regardless of the fact that the license was reinstated by the State five days prior to the statutorily authorized date. Under such circumstance, the defendant obviously had no intention to violate the law, and if he received his license five days early, such reissuance was done by the State with full knowledge of both the law and defendant’s status. This type of situation is very different from that in which a defendant whose license has been suspended, simply applies for a new driver’s license and does not reveal his status, and same is issued by the state without knowledge of the suspension, rather than applying for reinstatement with full disclosure. Indeed, upon proper evidence, acquittal would be demanded. Where, as here, the evidence was equivocal, the judge properly left this question of fact to the jury.

       The 1990 amendments to OCGA § 40-5-63 rewrote that Code section to incorporate these provisions of OCGA § 40-5-70. Ga. L. 1990, p. 2048.


author: Johnson, Judge. Blackburn, Judge,

text:
    A93A0056.
    IVEY v. FIRST OF GEORGIA INSURANCE COMPANY. SMITH v. FIRST OF GEORGIA INSURANCE COMPANY.
    A93A0057.
    (434 SE2d 556)
   Johnson, Judge.

In late 1989, Jack Wade Ivey, Jr., sold a Midget Mustang I airplane to Randy Smith. Smith was 19 years old and had recently obtained his private pilot’s license. In conjunction with the sale, and at the insistence of Smith’s father, Ivey agreed to teach Smith how to fly the aircraft. After some preliminary instruction in a two-seat, tail-wheel aircraft, Smith attempted his first solo flight in the Mustang. Because of the single seat design of the Mustang, Ivey remained on the ground and used a handheld radio to communicate with Smith during flight. On his first landing approach, Smith bounced the airplane and attempted to abort the landing and execute a “go-around” by applying full power. While this procedure was correct for the aircraft Smith had been trained in, the Mustang was a high-power, high-torque aircraft, and applying full power caused the plane to roll inverted. Smith then lost control resulting in a serious accident. Smith brought suit against Ivey. Ivey notified First of Georgia Insurance Company, underwriters of his homeowner’s insurance policy of the claim and asked First of Georgia to provide a defense. First of Georgia brought a declaratory judgment action, asserting that there was no coverage for the claim on the basis of a specific provision in the policy which excluded claims “arising out of the ownership, maintenance, use, loading or unloading of an aircraft.” The trial court found that the exclusion relating to aircraft relieved First Georgia of the duty to defend and held that no coverage was available for Smith’s claim under the homeowner’s policy issued to Ivey by First of Georgia. Ivey and Smith appeal.

The exclusion relating to use of aircraft has not been construed by the courts of this state. However, the exclusion language in this section of the policy uses language identical to the language used in the exclusion relating to motor vehicles. This court has adopted a liberal definition of the word “use.” “Exact definition of the term ‘use’ is elusive, and is not capable of a definition which will leave everyone ‘comfortable.’ Whether or not an injury arose from the ‘use’ of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply ‘remoteness,’ but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being ‘utilized.’ ” (Citation and punctuation omitted.) Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3, 4-5 (2) (230 SE2d 70) (1976). See also Ga. Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga. App. 120, 122 (329 SE2d 204) (1985).

The record shows that the accident occurred when appellee’s insured was teaching appellant to fly the new airplane. It is impossible to imagine a circumstance in which a flight instructor could provide ground to air instruction without the involvement of an airplane. We do not need to stretch the meaning of any word to conclude that both Ivy and Smith were using the plane at the time of the tragic accident.

“Ambiguity in an insurance policy may be defined as duplicity, indistinctness, and uncertainty of meaning or expression. . . . Even applying the rule that any exclusion from coverage must be construed strictly against the insurer, the policy language remains plain and unambiguous, and accordingly the parties are bound by its terms.” (Citations and punctuation omitted.) Hartford Ins. Co. &c. v. Franklin, 206 Ga. App. 193, 194-195 (1) (424 SE2d 803) (1992). The term “use” is not ambiguous in the context of this case and we need not reach for ambiguity when it is not present and the plain meaning of the policy is apparent and controls. “An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Citations and punctuation omitted.) Hollis v. St. Paul Fire &c. Ins. Co., 203 Ga. App. 252, 254 (416 SE2d 827) (1992). First of Georgia, in drafting the homeowner’s policy issued to Ivey intended to provide coverage for those claims arising incident to the ownership of the home, and the cost of that insurance was calculated in accordance with that level of risk. It excluded those risks associated with aircraft, for which aviation insurance is available. The trial court did not err in granting summary judgment to First of Georgia.

Judgments affirmed.

Pope, C. J., Birdsong, P. J., Cooper, Andrews and Smith, JJ., concur. Beasley, P. J., concurs in judgment only. McMurray, P. J., and Blackburn, J., dissent.

Blackburn, Judge,

dissenting.

Under Georgia law, the coverage provisions of an insurance policy are to be liberally construed and exclusions of an insurance policy are to be strictly construed. In affirming the trial court’s grant of summary judgment for the insurer, the majority opinion breaches this rule of construction by liberally interpreting a policy exclusion.

The policy in question in this case generally covered an occurrence, defined as “an accident, including exposure to conditions, which results ... in bodily injury; or property damage.” However, the policy excluded coverage for bodily injury or property damage “arising out of the ownership, maintenance, use, loading or unloading of an aircraft. ...” The only issue in this case is whether the term “use” in the exclusion is limited to the use of an aircraft by the insured, or included all use of an aircraft by any person.

Generally, “ ‘[t]he law favors coverage, as that is the intent of purchasing insurance in the first place. (Cit.)’ [Cit.]” State Farm &c. Ins. Co. v. Acheson, 182 Ga. App. 218, 219 (355 SE2d 128) (1987). “Any exclusion sought to be invoked by the insurer . . . will be liberally construed in favor of the insured and strictly construed against the insurer unless same is clear and unequivocal. [Cits.]” Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438, 441 (287 SE2d 226) (1981). When a provision in an insurance policy is susceptible of two or more constructions, the courts will apply the construction that favors the insured. Atlantic Wood Indus. v. Lumbermen’s &c. Alliance, 196 Ga. App. 503 (3) (396 SE2d 541) (1990).

“ ‘[I]f the term “use” is construed to embrace all its possible meanings and ramifications, practically every activity of mankind would amount to a “use” of something. However, the term must be considered with regard to the setting in which it is employed. . . .’” Assurance Co. of America v. Bell, 108 Ga. App. 766, 772 (134 SE2d 540) (1963). In the instant case, the policy fails to define the term “use,” and while the majority of the exclusions contained in the policy specifically refer to the insured, the subject exclusion fails to specify to whom it applies, which it could easily have done. Considering the context in which the exclusion regarding the use of aircraft appears, the exclusion is susceptible of being construed to apply either (1) only to the insured’s use of an aircraft, or (2) to any person’s use of an aircraft. It follows that the exclusion should be read to apply only to the use of an aircraft by the insured under the policy. Atlantic Wood Indus. v. Lumbermen’s &c. Alliance, supra.

Neither this court nor the Supreme Court has established a binding precedent construing the exclusion contained in the policy in this case. (In Golder v. United Svcs. Auto. Assn., 177 Ga. App. 194 (338 SE2d 771) (1985), which involved a similar exclusion for injury arising out of the use of an aircraft, two out of three judges agreed that the exclusion did not apply where someone other than the insured used the aircraft, but that decision is a physical precedent only, pursuant to Rule 35 of the Rules of the Court of Appeals.) Consequently, all the parties to this appeal rely upon cases from other jurisdictions as persuasive authority to support their respective positions.

In Southern Farm &c. Ins. Co. v. Adams, 570 SW2d 567 (Tex. Ct. App. 1978), relied upon by Ivey and Smith, where the insured was sued by an individual whose vehicle was sprayed by a cropduster hired by the insured, a similar exclusion was found to be inapplicable because the aircraft was not owned or used by the insured. In Wilkins v. American Motorists Ins. Co., 388 SE2d 191 (N. C. App. 1990), relied upon by First of Georgia, the insured was sued over the crash of an aircraft, for an alleged failure to warn and negligent instruction regarding the operation of an airplane, and essentially the same ex-elusion was found to be unambiguous and effective to exclude coverage under the policy. However, in Wilkins, the insured possessed an ownership interest in the aircraft in question, which supplied an additional basis for application of the exclusion. Notwithstanding some similarity between the facts in Wilkins and those in the instant case, Adams is more persuasive because it also involved an insured who possessed no ownership interest in the aircraft.

In summary, in seeking declaratory judgment, First of Georgia did not contend that the occurrence which formed the basis for Smith’s action against Ivey was not an occurrence generally covered under the homeowner’s policy issued to Ivey. Rather, it asserted that coverage for the occurrence was specifically excluded. However, because the exclusion regarding the use of aircraft, as drafted by First of Georgia, is susceptible of two constructions, one limiting its application to the insured only and the other allowing its ápplication to the use of an aircraft by any person, the construction favoring the insured should be followed.

In concluding otherwise, the majority opinion advances a position not even asserted by the insurer in this case, i.e., that in providing ground to air instruction Ivey was “using” the aircraft within the meaning of the exclusion. In doing so, however, the majority opinion necessarily applies a liberal definition of the word “use,” extracted from Ga. Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga. App. 120 (329 SE2d 204) (1985), a case involving construction of the liability portion of an automobile insurance policy. In Greene, a nine-year-old student was injured while crossing a highway after the substitute school bus driver failed to turn onto the highway before allowing the child to exit the bus and she was injured while crossing said highway, which crossing was made necessary by the negligence of the driver in unloading at the wrong location. The insurer sought to avoid coverage alleging that the crossing was not a “use” under the policy.

Greene, supra at 122 cited, Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3 (230 SE2d 70) (1976), for the proposition that “[t]his court has adopted a liberal definition of the word ‘use.’ ” However, both Booker and Greene involved the construction of the term “use” under the coverage provisions of such policies, which requires a liberal interpretation of the policy, and not, as in the instant case, the construction of the exclusion language of the policy, which requires a strict interpretation of same.

The majority opinion’s reliance upon Greene is misplaced for two reasons. First, Greene (and the majority of the cases cited therein) involved construction of terms under the general coverage provisions of the policy, and not the exclusions, and liberal construction of a term thus may have been appropriate. However, “[e]xceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” (Citations and punctuation omitted.) Hirschfield v. Continental Cas. Co., 199 Ga. App. 654, 655 (405 SE2d 737) (1991). Secondly, Greene was a two-judge decision and thus possesses no binding, precedential value. If such physical precedents could be relied upon, then Golder v. United Svcs. Auto. Assn., supra, and not Greene, would be dispositive of the instant case.

Decided July 14, 1993 —

Reconsideration denied July 30, 1993 —

Lawrence J. Pond, Thomas W. Malone, for appellant (case no. A93A0056).

White, Smith, Howard & Ajax, John A. Howard, Kenneth B. Hodges III, for appellant (case no. A93A0057).

Hodges, Erwin, Hedrick & Kraselsky, Edmund A. Landau III, for appellee.

As stated above and conceded by the insurer, the issue in this case is whether the insurance policy excludes coverage for bodily injury or property damage arising out of the use of an aircraft by the insured, or excludes coverage for the use of an aircraft by any person. The law favors coverage under insurance contracts, and consistent with that policy, general coverage provisions are construed liberally and exclusions are construed narrowly. Applying those general principles in the instant case, the policy exclusion should be limited to the use of an aircraft by the insured himself. As it is uncontroverted that Ivey was not using the aircraft at the time of the injury, coverage was not excluded under the policy and First of Georgia was not entitled to declaratory judgment.

Accordingly, I must respectfully dissent from the majority opinion’s contrary conclusion.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

       An analogy was drawn between the provisions of an automobile liability policy and an aviation liability policy in Southern Gen. Ins. Co. v. Boerste, 195 Ga. App. 665 (1) (394 SE2d 566) (1990). Similarly, principles of automobile liability insurance law were applied to motor boats in State Farm Fire &c. Co. v. Holton, 131 Ga. App. 247 (205 SE2d 872) (1974). Southeastern Fire Ins. Co. v. Heard, 626 FSupp. 476 (N.D. Ga. 1985) another case involving a watercraft accident, also provides a helpful discussion of “use” exclusions in insurance policies, particularly as this issue arises in the context of negligent entrustment claims.


author: Beasley, Presiding Judge. Pope, Chief Judge, Cooper, Judge,

text:
    A93A0066.
    KELLY v. THE STATE.
    (434 SE2d 743)
   Beasley, Presiding Judge.

Barry Kelly was indicted on a charge of armed robbery, OCGA § 16-8-41 (a), in March 1991, and on separate charges of armed robbery and aggravated assault with intent to rob, OCGA § 16-5-21 (a) (1) in August 1991. The three charges were joined for trial over Kelly’s objection, and a jury convicted him on all. His motion for new trial was denied.

The first armed robbery took place on January 26, 1991. A man entered a Wendy’s restaurant and directed the assistant manager to walk back to the office and open the safe. He was joined by a second man holding a gun at his side who assisted in taking the money from the safe. At trial, the assistant manager identified Kelly as the second man.

The second incident occurred two days later. Two men were loading computer equipment into a car in a garage when a gunman appeared and, after learning the men had no billfolds, demanded the car keys. When this request was refused, the robber struck the owner of the car. When a second man then approached the car the victims surrendered the keys, but before the two robbers drove away in the stolen car, the same victim was hit again from behind. Three days after this robbery, the owner of the car identified Kelly from a photographic lineup.

Approximately two weeks later, Kelly was apprehended when a policeman responding to a call to assist a motorist found him attempting to change the tire of a car. Kelly claimed to have borrowed the car, but when the officer checked on both Kelly and the tag, he learned there was a felony warrant outstanding for Kelly for the armed robbery in which the car was taken on January 28.

1. Kelly, who is black, contends the trial court erred in denying his challenge, based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), to the State’s use of its peremptory strikes. Batson directs a three-step process for' evaluating a claim of racial discrimination in the State’s use of peremptory jury strikes: (1) the defendant must make a prima facie showing that the prosecution has exercised its peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

(a) The trial court found that Kelly had failed to make a prima facie showing of discrimination under Batson. Out of an abundance of caution, however, he continued with the second and third steps of the evaluation. Twenty-five blacks were included in the fifty-four person venire, or forty-six percent. Four jurors were struck for cause, of whom one was black, leaving the percentage of blacks in the fifty-person venire at forty-eight percent. The jury impaneled, including the two alternates, included five blacks, or thirty-six percent. The prosecution exercised nine peremptory challenges, all against blacks. This was sufficient to create a prima facie inference of racial discrimination, Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987), and thus the trial court’s determination that no prima facie showing had been made was erroneous. Id.

“However, ‘(o)nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. ([Cit.])’ ” Lewis v. State, 262 Ga. 679, 680 (424 SE2d 626) (1993).

(b) We turn, then, to the reasons given by the prosecutor for striking the nine jurors in question, to determine whether he made sufficient showing that the challenges did not involve discriminatory purpose. “The prosecutor’s explanations must be strong enough to overcome the prima facie case.” Ford v. State, 262 Ga. 558, 559 (2) (423 SE2d 245) (1992).

At the Batson hearing, the defense did not respond to three of the reasons given by the prosecutor, and on appeal the reasons given for striking those three jurors are not challenged. The reasons given for these strikes were not “suspect.” Compare Ford, supra at 559-560 (3). Rather, they demonstrate “the kind of concrete, tangible, race-neutral and neutrally-applied reasons that can overcome the strong prima facie case established ... in this case.” Id.

Four other prospective jurors were struck for various “reasonable suspicions” articulated by the prosecutor regarding their impartiality. Two of them specifically expressed doubt that they could be impartial. Another’s father had been convicted of a crime and had been imprisoned. See Davis v. State, 263 Ga. 5 (10) (426 SE2d 844) (1993). One, a 19-year-old male, expressed his belief that law enforcement officials had not done what they could have done to investigate an armed robbery in which he had been the victim, and the prosecutor believed that attitude made him an unsuitable juror. “A reasonable suspicion about a prospective juror’s impartiality that falls short of justifying an excuse for cause might well justify the exercise of a peremptory strike.” Hall v. State, 261 Ga. 778, 780 (2) (a) (415 SE2d 158) (1991).

The prosecutor explained that he struck a nurse who had retired from his job in a hospital observation ward on disability because of doubts regarding his health, stamina, and ability to sit through a lengthy trial and observe the witnesses.

The prosecutor’s remaining strike was of a prospective juror who indicated he had worked at his present job for only four months. Prior to that he worked in catering for Eastern Airlines for about seven years. His wife was in art school. The explanation was that he was struck because of the prosecutor’s concern that he was not “a stable member of this community.” Defense counsel’s response at the Batson hearing that other prospective jurors had similar work histories yet had not been stricken is not borne out by the record, which reveals only one such prospective juror who became a member of the petit jury. That member’s race is not shown. The record does not reflect the race of the jurors accepted by the State, but only that of the jurors specifically challenged by appellant. Some of the jurors described in the dissent may be black and were accepted by the State.

Standing alone, the prosecutor’s explanation has the appearance of one of those “reflect[ing] certain stereotypical attitudes as to particular groups,” Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992), and therefore suspect, as urged by Kelly. See Thomas v. State, 208 Ga. App. 367 (430 SE2d 768) (1993), (Beasley, P. J., dissenting). However, it “must be evaluated in light of the explanations offered for the prosecutor’s other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case. A court charged with the duty of determining whether the prosecutor has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor’s proffered justifications are questionable.” Gamble, supra at 327 (5). Although the prima facie case was strong, this was the only one of the prosecutor’s nine explanations that appears suspect under Batson. In general, the prosecutor’s explanations were clear, specific, related to the case to be tried, and race-neutral. Gamble, supra at 327 (5); see Davis, supra. Compare Williams v. State, 262 Ga. 732, 733-734 (1) (426 SE2d 348) (1993).

The trial judge personally observed the voir dire and was able to note the demeanor of both the prospective jurors and the prosecutor, an opportunity denied to this court. In ruling on the Batson claim and concluding that the State had exercised its peremptory challenges in a neutral manner, the trial court noted this careful observation of the jury selection. His finding is entitled to “ ‘great deference,’ ” Gamble, supra, and given the circumstances present, it is affirmed because it is not clearly erroneous. Id.

2. Kelly contends the trial court erred in granting the State’s motion to join the two indictments, over objection. “A denial of severance is reviewed under an abuse of discretion standard.” Davis, supra at 6 (3). Georgia has adopted the ABA Standards on Joinder of Offenses, Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975), which provide in pertinent part that offenses may be tried together when they constitute part of a single scheme or plan. Id. at 463; see Davis, supra.

The offenses joined are logically connected and show a single scheme: the Fulton County Wendy’s robbery was followed two days later by the armed robbery of a car. On the same day the car was taken, it was used in two Wendy’s robberies in DeKalb County, in which the robbers used a modus operandi identical to that used in the Fulton County Wendy’s robbery. Prior to this trial, Kelly had pled guilty to the DeKalb offenses. The trial court did not abuse its discretion by allowing joinder of the offenses for trial. Davis, supra.

3. Kelly enumerates as error the trial court’s striking of the entire testimony of his half-brother, Ricky Dennis.

Despite having pled guilty to the DeKalb County Wendy’s robberies, Kelly’s sole defense at trial was misidentification. Dennis, a defense witness, testified on direct examination that during January and February 1991, he participated in twenty or more armed robberies and had pled guilty to six in DeKalb County, for which he was currently incarcerated. He testified that, although Kelly was at the two DeKalb County Wendy’s robberies to which he pled guilty, those pleas had been Alford pleas, and Kelly was only minimally involved. He testified that Kelly had been out of town until January 28, and that he had received a call from Kelly asking if he could pick him up because he had hitchhiked home from South Carolina, where he had been visiting a girl friend, and had no ride from where he had been dropped off in south Atlanta.

Dennis testified that he picked Kelly up and proceeded straight to a DeKalb County Wendy’s and robbed it. His testimony was that he thought Kelly would stay in the car, and that Kelly had not known the restaurant was to be robbed, but had come in during the robbery. Dennis also admitted the two Fulton County robberies with which Kelly was charged, and denied that Kelly had been with him.

Immediately after Dennis admitted these crimes, for which he had not been indicted, the prosecutor requested a bench conference, which was granted. After the trial court excused the jury, he explained to Dennis that the testimony could incriminate him and informed him of his Miranda rights. Dennis then requested to speak with an attorney, and the judge adjourned the trial for the day so that Dennis could do so.

The following morning, after having spoken with the public defender who represented him on the DeKalb County charges to which he had pled guilty, Dennis invoked his Fifth Amendment right to refuse to testify further, on the advice of counsel. The State moved to strike all of Dennis’ direct testimony on the ground that they planned to introduce the DeKalb County robberies as similar transactions in the planned Fulton County prosecution of Dennis, and would be denied the right to cross-examine him regarding his statements about his role in the DeKalb County robberies (to which the State believed he had also entered an Alford plea). After hearing argument from counsel, the trial court granted the State’s motion and instructed the jury to disregard all of Dennis’ testimony, which was proper.

“[W]hen a witness declines to answer on cross examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness’ testimony on the same subject matter should be stricken.” Smith v. State, 225 Ga. 328, 331 (168 SE2d 587) (1969).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Johnson and Smith, JJ., concur. Pope, C. J., and Andrews, J., concur specially. Cooper and Blackburn, JJ., dissent.

Pope, Chief Judge,

concurring specially.

I agree that the explanation offered by the prosecutor for the peremptory strike of the nurse who had retired because of disability was not suspect even though the juror stated there was nothing about his condition that would make it uncomfortable for him to sit through the trial. Despite the juror’s statement, since his condition made it impossible for him to work, I do not believe the prosecutor’s concerns about his stamina to sit on the jury were pretextual.

As to the juror who was struck because of an unstable work history, I do not believe the record shows purposeful discrimination. The dissenting opinion notes that several jurors who were not struck by the State were housewives or mothers who were not employed outside the home. In my opinion, it is not valid to compare a juror who is employed as a homemaker to one who is underemployed or who was previously employed but now unemployed. As further noted in the dissenting opinion, in addition to the juror who was struck for an unstable work history, four other jurors were not struck even though they responded that they were employed only part-time or had previously been employed but were currently unemployed. While these work histories might be comparable to that of the juror who was struck, the record does not show the race of these other jurors. Thus, the record is insufficient to support defendant’s argument that the prosecutor failed to offer a race-neutral reason for striking the juror in question. Accordingly, defendant has failed to carry his burden to prove the trial court erred. See Jefferson v. State, 206 Ga. App. 544 (6) (425 SE2d 915) (1992); Love v. State, 205 Ga. App. 27 (1) (421 SE2d 125) (1992).

I am authorized to state that Judge Andrews joins in this special concurrence.

Cooper, Judge,

dissenting.

The prosecutor used nine of the ten peremptory strikes he exercised to exclude blacks from the jury. During the Batson hearing, the prosecutor articulated the reasons for his exercise of each of the strikes, and the trial judge concluded that the State had exercised all of its nine peremptory strikes in a race-neutral manner. I dissent because I believe that the trial court’s conclusion is in error.

The prosecutor’s reason for striking one prospective juror was that the prospective juror had worked at his present job for only a few months thus indicating an unstable work history. The majority contends that there was only one prospective juror with a similar work history who was selected for the jury. My review of the record reflects that there were several prospective jurors with similar work histories who were found acceptable to the State. In addition to the prospective juror acknowledged by the majority to have a similar work history, another prospective juror explained that she was a nurse but not presently employed. One prospective juror admitted that he was not presently working and that he had previously worked for only a year with the City of College Park, and another explained that she was not working but was recently divorced and starting a new life for herself. One juror stated that she worked only two days a week at a retail establishment and played tennis the remaining days. Several other prospective jurors were housewives or mothers not employed outside the home. Thus, I find that the prosecutor’s explanation of “unstable work history” applied equally to more than one of the prospective jurors. The majority concedes that this explanation was “suspect,” but concludes that this was the only one of the prosecutor’s nine explanations that appears suspect. I do not agree that it was the only suspect explanation and would further point out that the rule of Batson is violated if the State exercised any of its peremptory strikes for racially discriminatory reasons. Powell v. State, 182 Ga. App. 123 (2) (355 SE2d 72) (1987).

The prosecutor contended that he struck one of the prospective jurors because the juror had taken disability leave, and the prosecutor was concerned that the juror would be unable to sit through the trial. However, the record reflects that the prospective juror unequivocally stated that his disability, an enlarged heart, would not affect his ability to sit on the jury. The prosecutor did not question this prospective juror any further, and the record is devoid of any evidence which would support the prosecutor’s stated concern that the juror might have problems sitting through the trial. In light of the strong prima facie case established by the prosecutor’s exercise of nine peremptory strikes to excuse blacks, the prosecutor’s explanations were required to be “concrete, tangible, race-neutral and neutrally-applied.” Ford v. State, 262 Ga. 558, 560 (423 SE2d 245) (1992). I cannot conclude as readily as the majority that “[i]n general, the prosecutor’s explanations were clear, specific, related to the case to be tried and race-neutral.” Consequently, I must respectfully dissent.

Decided July 14, 1993 —

Reconsideration denied July 30, 1993 —

Jeanne M. Canavan, for appellant.

Lewis R. Slaton, District Attorney, Charles W. Smegal, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Because I would reverse the trial court’s ruling on the Batson issue and grant appellant a new trial, I find it unnecessary to address appellant’s remaining enumerations of error.

I am authorized to state that Judge Blackburn joins in this dissent.

       In North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), the Supreme Court held that a defendant’s plea of guilty coupled with his claim of innocence was not necessarily a demonstration that the plea was not free and voluntary; and that no constitutional error exists in accepting such a plea when the defendant intelligently concludes it is in his best interest and the judge has inquired into the factual basis for the plea and has sought to resolve the conflict between the waiver of trial and the claim of innocence.