text:
    A90A0072.
    CROWE v. CONGRESS FINANCIAL CORPORATION (SOUTHERN).
    (395 SE2d 321)
   Beasley, Judge.

Defendant Crowe appeals the grant of partial summary judgment to plaintiff Congress Financial Corporation (Southern) and the denial of his cross-motion for partial summary judgment. The issue is the enforceability of a personal guaranty executed by Crowe in conjunction with certain financing agreements between Crowe Manufacturing Corporation of which Crowe was president and Congress’ assignor, James Talcott, Inc.

What follows is undisputed. On August 1, 1984, Crowe Mfg. entered into certain financing agreements with Talcott whereby Talcott would periodically make loans to Crowe Mfg. To induce Talcott to enter into the financing arrangement, Crowe the same day executed a personal guaranty of payment of all of the liabilities and obligations at any time owing by Crowe Mfg. to Talcott under the financing agreements or otherwise.

By certified letters dated April 29, 1986, Congress notified Crowe Mfg. and Crowe individually that Congress had acquired Talcott’s stock and that following the acquisition, Talcott arranged to transfer its financing business to Congress. Collectively, the letters further advised that Talcott had assigned to Congress all of its right, title and interest in the financing arrangements with Crowe Mfg., including the personal guaranty; that the assignment became effective on opening of business May 1 as to all outstanding loans, advances, and other financial accommodations under the financing agreements including the guaranty and with respect to all transactions under the financing agreements including the guaranty, arising on and after May 1; that as previously advised, Congress had been acting as agent for Talcott in connection with the financing agreements until the assignment could be effectuated; and that if there were any questions concerning the assignment not to hesitate to contact Congress.

By virtue of the substitution of Congress for Talcott, Congress became the lender for Crowe Mfg., and Congress continued to make advances to Crowe Mfg. pursuant to the financing agreements. Congress made a number of these advances at Crowe’s request.

On March 9, 1987, Crowe Mfg. filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. The filing of bankruptcy was an event of default under the financing agreements. At the time of the filing, Crowe Mfg. was indebted to Congress under the financing agreements in the amount of $3,351,577.88. After the filing, Congress continued to collect on the collateral securing Crowe Mfg.’s indebtedness.

On August 27, Crowe Mfg., Congress and Auto-Lok, Inc., which had purchased Crowe Mfg.’s assets, filed an adversary proceeding in the bankruptcy case against several defendants, including Crowe and Richmond Rack Industries, Inc. The principal purpose of the proceeding was to recover equipment removed from Crowe Mfg.’s premises allegedly without the consent of the bankruptcy court or Crowe Mfg. after the bankruptcy petition was filed. The equipment was believed to have been moved to Richmond Rack. Crowe Mfg. also sought to collect on pre-bankruptcy and post-bankruptcy accounts receivable owed by Richmond Rack. Congréss joined in the proceeding because it had a security interest in Crowe Mfg.’s equipment and accounts receivable. Congress believed that all defendants, including Crowe, either were involved in removing or had possession of some of the equipment.

Crowe and another defendant in the bankruptcy adversary proceeding filed a confession of judgment in that action and on January 12, 1988, the bankruptcy court entered judgment in favor of plaintiffs directing that the equipment and documents sought be returned to Auto-Lok. Plaintiffs and the remaining defendants settled, and on August 29, the bankruptcy court approved it. On October 27, in accord with the settlement, the adversary proceeding was dismissed with prejudice against the remaining defendants.

Prior to Crowe’s confession of judgment in the bankruptcy action, on November 23, 1987, Congress filed the present action against Crowe alleging, inter alia, that he was personally liable under the guaranty for Crowe Mfg.’s indebtedness to Congress then in the amount of $1,754,745.36. Congress also prayed for $1,000,000 exemplary damages, expenses of litigation including attorney fees, post-judgment interest, costs, and attorney fees of 15 percent of the indebtedness due and owing under the financing agreements and guaranty, in the amount of $263,211.

On July 11, 1989, the court entered a final judgment in favor of Congress and against Crowe in the principal amount under the guaranty of $1,776,370.80 plus post-judgment interest at the legal rate, and $266,455.62 in attorney fees pursuant to OCGA § 13-1-11.

1. Crowe contends the guaranty was satisfied or in essence discharged by way of termination of the financing agreements at their second anniversary, August 1, 1986, inasmuch as Talcott had ceased to exist on May 1, 1986.

Crowe relies on paragraph nine of the agreements which provided in part that the contract be for “an initial term of two years from its effective date” to be “automatically renewed for successive periods of one year unless terminated on sixty (60) days’ prior written notice. . . .” The provision authorized Talcott to terminate at any time and Crowe Mfg. to terminate on the anniversary of the contract’s effective date in any year. Notice of termination was to be by timely mailing of a registered or certified letter to the party’s usual address. If Crowe Mfg. became insolvent or a bankruptcy action was instituted, Talcott had the right to terminate at any time without notice. On the termination date, all outstanding loans and other amounts chargeable to Crowe Mfg. would become immediately due and payable without further notice or demand. Talcott’s rights with respect to obligations owed to it or chargeable to Crowe Mfg.’s account prior to the termination date would not be affected by termination and would continue to be operative until all the obligations had been fully satisfied.

Crowe does not contend and there is no evidence of Crowe Mfg. or of Talcott terminating the contract. Nor did the assignment to Congress terminate the financing agreements. The language of the assignment and assumption agreement specifically references the financing agreements and the guaranty. The April 29 letters notifying Crowe Mfg. and Crowe of the assignment, rather than implying termination of the financing agreements as Crowe suggests, clearly show Congress’ intent to ta.ke on Talcott’s contractual loan obligation to Crowe Mfg.

In addition, there is no evidence of any separate financing agreement between Crowe Mfg. and Congress under which Congress was to loan money to the company. The fact that Congress continued to make loans to Crowe Mfg. following its acquisition of Talcott’s stock belies the argument that the subject financing agreements were in any manner terminated.

Lastly, there is no evidence to support Crowe’s contention that Crowe Mfg. and Talcott reached an accord and satisfaction. See OCGA § 13-4-101. The bare unsupported statement in Crowe’s affidavit that all outstanding debts of Crowe Mfg. to Talcott were satisfied on or before March 9, 1987 falls far short of raising an accord and satisfaction and does not stand in the fact of Congress’ specific evidence of Crowe Mfg.’s continuing debt.

2. Crowe contends that his guaranty covered only the outstanding indebtedness between Crowe Mfg. and Talcott as of the date of the assignment and assumption agreement, relying on Rockwell Intl. Corp. v. Riddick, 633 FSupp. 276 (ND Ga. 1986), j.n.o.v. and new trial denied, 668 FSupp. 674 (ND Ga. 1987). Rockwell is inapposite. In this case there is no contention or evidence that Crowe ever attempted to or did cancel, revoke, or terminate the guaranty.

In addition, the language of the financing agreements, the guaranty, and the assignment and assumption agreement do not support the contention that the guaranty did not extend to the advances made by Congress to Crowe Mfg. Nor do the parties’ activities following the assumption support the contention. Moreover, affidavits by Congress’ vice-president established that the purpose of the assignment was to substitute Congress for Talcott; the parties intended that the financing agreements and guaranty would continue in full force and effect with Congress substituted for Talcott; Crowe acquiesced in the substitution; in making the advances to Crowe Mfg., Congress re-upon Crowe’s promise to pay the company’s indebtedness under the financing agreements; and had. Congress known that Crowe later would contend that his guaranty did not cover these advances, Congress would not have continued to make the advances to Crowe Mfg. under the financing agreements. This is not refuted by evidence.

3. Crowe contends that he should have been granted summary judgment on the unenforceability of the guaranty because Congress’ action is barred by the doctrine of res judicata. He maintains that the claim under the guaranty should have been asserted in the bankruptcy adversary proceeding.

“OCGA § 9-12-40 provides that ‘(a) judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ ‘ “In order for the doctrine of res judicata to apply . . . there are three prerequisites to which the situation must conform. They are: (1) identity of parties[, including their privies]; (2) identity, of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must [occur]. (Cits.)” (Cit.)’ Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980).” Barnes v. City of Atlanta, 186 Ga. App. 187, 188 (1) (366 SE2d 822) (1988).

The cause of action in the bankruptcy proceeding was Crowe’s alleged participation with others in the unauthorized removal of Crowe Mfg.’s equipment, largely to the detriment of the purchaser of Crowe Mfg.’s assets. Even assuming, which we do not, that the bankruptcy court could properly have adjudicated a claim of Crowe’s personal liability to Congress under the guaranty in this situation of corporate reorganization, see 28 USC § 157, the personal guaranty of payment by Crowe for the company’s loan obligations was not relevant to the claim of violation of the corporate reorganization by aiding appropriation of equipment. Moreover, there was no evidentiary hearing in the bankruptcy court leading to the judgments against the defendants. They were accomplished through confession of judgment or settlement.

The lack of factual and legal identity between the two actions is fatal to the claim that the present suit is barred because of res judicata.

Decided June 7, 1990

Rehearing denied June 20, 1990 — Cert, applied for.

Robert S. Devins, for appellant.

Parker, Hudson, Rainer & Dobbs, C. Edward Dobbs, Jack C. Basham, Jr., David N. Heaton, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A0532.
    THE STATE v. ALMAND.
    (395 SE2d 609)
   Beasley, Judge.

The State appeals the grant of defendant Almand’s motion to suppress drugs and paraphernalia found in her apartment after a search conducted pursuant to a search warrant.

Almand resided in an apartment complex and made a request for service due to water-soaked carpet in her hall and dining room. Riverdale police officer Canada worked as a security guard at the complex and was also assistant resident manager and maintenance assistant.

Pursuant to Almand’s work order, resident manager/maintenance superintendent Sells and Canada, as part of his on-the-job training, entered the apartment with a master key in Almand’s absence on February 8, 1989. They located the wet carpet outside the master bathroom and examined the plumbing to try and locate the leak.

When Canada took off his jacket and hung it on the door knob of the open bedroom door across from the bathroom, he saw on the dresser in the bedroom a bag of green leafy substance he believed to be marijuana. Canada did not touch the bag but instead continued with Sells to look for the leak. At Sells’ request, Canada went into the half-bathroom in the master bedroom to examine that plumbing. He opened the vanity to inspect the pipes and saw a triple beam scale; he did not disturb it. Thereafter, he and Sells discovered the leak in an adjoining apartment.

Canada reported what he had seen to a Riverdale detective who obtained a search warrant which was executed the next day by the detective, Canada, and other officers. Although the bag was no longer present, the search uncovered, in addition to the triple beam scale, a screen strainer, razor knife, tweezers, methamphetamine, cocaine and marijuana. The drugs were in a bank bag in a concealed hole in the wall of the master bedroom closet.

Almand moved to suppress solely on federal Fourth and Fourteenth Amendment grounds. She contended that Officer Canada exceeded the scope of his invitation to the apartment and conducted an unlawful search while looking for the leak because he had previously been advised by another officer that there were suspected illicit activities going on at the apartment.

The trial court concluded that Canada, because he had been advised to keep an eye on the apartment, entered the apartment in his profession as a law enforcement officer and not as a maintenance man.

“The federally-founded protection and that afforded by the associated exclusionary rule are against invasions of reasonable expectations of privacy by state action and, with regard to the exclusionary rule, state law enforcement action. State v. Young, 234 Ga. 488, 489 (1) (216 SE2d 586) (1975) cert. denied, 423 U. S. 1039.” Smith v. State, 186 Ga. App. 303, 309 (3) (367 SE2d 573) (1988).

As conceded by Almand, Sells and Canada were invitees in her apartment. Whether Canada was subjectively on the lookout for information to buttress the earlier tip or was intent solely on finding the leak in his off-duty job as assistant maintenance supervisor, Almand had no reasonable expectation of privacy in her apartment, to the extent it was “invaded,” from the personnel she had asked to be sent. They did not go beyond the scope of her request for service. They were in a place they were authorized to be, when evidence of crime was observed. See Lang v. State, 165 Ga. App. 576, 578 (2) (302 SE2d 683) (1983) cert. denied, 464 U. S. 937; Brooker v. State, 164 Ga. App. 775, 776 (1) (298 SE2d 48) (1982).

The subjective intent of an officer and the fact that actions taken may have dual motives do not preclude the conclusion that no impermissible invasion occurred because they were objectively reasonable, “valid independent of their suspicion,” under the Fourth and Fourteenth Amendments. State v. McCloud, 187 Ga. App. 580, 583 (370 SE2d 831) (1988). An officer is not required to ignore what he observes when legitimately acting in another capacity. “[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton v. California, — U. S. —, 58 USLW 4694, 4697 (June 4, 1990).

To the extent that the ruling was premised on lack of the “inadvertence” requirement of the plain view doctrine, it was erroneous.

“A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. [Cit.] The ‘plain view’ doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. [Cits.] A seizure of the article, however, would obviously invade the owner’s possessory interest. [Cits.]” Horton v. California, supra at 4696. In Horton, the Supreme Court abolished the “inadvertence” requirement as it had developed from the plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971).

Decided June 20, 1990.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellant.

David J. Walker, for appellee.

Judgment reversed.

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


author: Carley, Chief Judge.

text:
    A90A0006.
    LOGAN PAVING COMPANY v. PEOPLES BANK & TRUST.
    (395 SE2d 287)
   Carley, Chief Judge.

In 1987, appellee-defendant Peoples Bank & Trust made a construction loan to Landmark, Inc. (Landmark) and took back a security deed on the property to be improved. In 1988, Landmark hired appellant-plaintiff Logan Paving Company to perform work on the property. When appellant was not paid for the work it performed, it filed suit against Landmark and a materialman’s lien against the property. Thereafter, Landmark defaulted on its construction loan, and appellee initiated foreclosure proceedings pursuant to the power of sale contained in its deed to secure debt.

Appellant then brought this declaratory judgment action, seeking a declaration that appellee’s security deed was invalid and that appellee was, therefore, merely an unsecured creditor of Landmark. Appellee answered, denying the material allegations of appellant’s petition for declaratory judgment. Thereafter, cross-motions for summary declaratory judgment were filed. The trial court denied appellant’s motion and granted appellee’s, holding that appellee’s security deed was valid and that appellee was, therefore, a secured creditor of Landmark. It is from this order that appellant brings this appeal.

It is clear that, at the time appellant filed its petition for declaratory relief, all rights had accrued and appellant was in need of no direction with respect to any future conduct on its part which might affect its interests. Appellant’s lien against the property had already been filed and appellee was already in the process of foreclosing under the power of sale contained in its security deed. What appellant sought, in effect, was an advisory opinion as to whether, based upon past events, it would prevail on the merits if it were ever to file an action at law or equity to establish the priority of its lien over appellee’s deed to secure debt. Based upon those past events, appellant should have sought immediate legal or equitable relief to establish the priority of its lien, not an advisory opinion from the trial court. “ ‘Our declaratory judgment statutes provide that there must be an actual or justiciable controversy between adverse parties before they can be invoked. (Cit.) When a complaint for declaratory judgment shows upon its face, as this one does, that there is no actual or justiciable controversy between adverse parties, a trial court does not have jurisdiction to render a declaratory judgment. . . . An actual or justiciable controversy was not present in this alleged litigation, and the trial court was without jurisdiction to enter a judgment. This being so, the judgment must be set aside as nugatory.’ [Cit.] Accordingly,. . . the judgment below must be vacated. As appellant failed to demonstrate that it was in need of any direction from the court with respect to future conduct on its part which might increase its liability or otherwise affect its interests, the trial court erroneously entered an advisory declaratory judgment which held, in effect, that, should the accrued rights and obligations at issue result in future litigation, then appellee would prevail on the merits.” Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178 (363 SE2d 614) (1987).

Decided May 30, 1990

Rehearings denied June 8, 1990 and June 21, 1990 — Cert, applied for.

Hudson & Montgomery, Kenneth Kalivoda, for appellant.

Holt, Ney, Zatcoff & Wasserman, J. Scott Jacobson, David F. Cooper, William F. Brogdon, for appellee.

Judgment vacated.

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


author: Birdsong, Judge. Banke, Presiding Judge,

text:
    A90A0217.
    PINKSTON v. CITY OF ALBANY et al.
    (395 SE2d 587)
   Birdsong, Judge.

Appellant was taken into protective custody by officers of the Albany Police Department on November 8, 1986, and was ultimately charged with the offense of “disorderly while intoxicated.” After spending an hour or two in the “drunk tank” at the city jail, he was released on bond. He remained free on bond for approximately two weeks, until he was rearrested on November 21, 1986, on a warrant charging him with attempted escape. That charge was based on allegations that he had attempted to kick out the window of the patrol car in which he had been placed on November 8, 1986. An accusation charging appellant with attempted escape was subsequently filed in state court, but the charge was ultimately nolle prossed based on the prosecuting attorney’s representation that “there was insufficient evidence” to proceed on it. Appellant then filed the present action against the City of Albany and seven members of the police department seeking damages for false arrest, slander, false imprisonment and violation of his federal civil rights. He brings this appeal from an order granting summary judgment to. all of the defendants on all counts of the action. Held:

1. The false arrest and false imprisonment claims are bottomed on allegations that appellees, Officers Ingram and Dunn, lacked probable cause to arrest the appellant on the charge of disorderly while intoxicated.

Under the facts of this case, there is no evidence, and thus no issue, of the peculiar “malice” and “lack of probable cause” that must underlie a cause of action for false arrest, according to OCGA §§ 51-7-1; 51-7-2 and 51-7-3, nor is there any evidence of “unlawful detention” so as to create a cause of action for false imprisonment according to OCGA § 51-7-20 et seq.

Appellant’s affidavit testimony that he was not drunk or disorderly would of course constitute a defense to the crime charged; but is not alone sufficient to create a question of civil tort and send to the jury a fact issue of false arrest. If the mere denial of having committed the crime is enough to raise an issue of false arrest, virtually all criminal prosecutions resulting in a nolle prosequi or acquittal could result in a civil lawsuit. Thus, such actions are not favored unless they are strictly proved and accurately stated. Hearn v. Batchelor, 47 Ga. App. 213 (170 SE 203).

The arresting officer’s affidavit on motion for summary judgment states: “At approximately 2 a.m. on November 8,1986 affiant was . . . investigating a complaint ... by two teenagers . . . who inquired of him why there were off-duty police officers out at a [public] holding pond area . . . who were drinking and carrying on. . . . [A]s I approached [the area] I saw a big bonfire with a number of people gathered around it, and . . . large number of automobiles, perhaps as many as 15. . . . As affiant approached . . . the people in the cars [left in a big hurry] and the people around the bon fire [ran away so that] there were only two people left. . . . [T]hese two people were very, very drunk. They were staggering, and their speech and laughter and other . . . conduct . . . clearly indicated to me that they were drunk. . . . There were several fifths of whiskey on the hood of [a pick-up] truck, already opened. ... In the back of the truck there were several cases of beer and an ice chest with ice in it. On the hood of the truck were several guns: A Ruger Speed-Six, caliber .357 Magnum, loaded with six rounds, a Mossburg shotgun loaded with five rounds, and a Ruger assault rifle with a Redfield scope and a 30-round ammunition clip. Affiant also found handcuffs in the pocket of one of the men, who identified himself as John Doe. . . . Affiant asked both men for identification several times. The man who represented himself to be John Doe [Kenneth Andrews] refused to give any identification. . . . He stated that the other man [Pinkston] was a deaf mute . . . and the other man in fact pretended to be a deaf mute and they used sign language with each other. . . . When it became apparent that affiant could not get them to leave or to cooperate in any manner, affiant radioed for Sergeant Dawson. . . . [B]oth Mr. Andrews [“John Doe”] and . . . Pinkston had dirt and mud all over them. . . . Mr. Pinkston had scratches and blood on him and it looked as if they had been fighting. . . .”

A third officer, Major Dunn, was called. Major Dunn decided the pair could not be allowed to leave because of their drunken condition and the possession of weapons. After Sergeant Dawson and Major Dunn put the guns and alcohol in the truck, they helped Ingram put Pinkston in the police car. “Then Mr. Pinkston and Mr. Andrew commenced hollering and yelling and making all kinds of noises, and began kicking at the windows with the heavy boots that they had on.” Officer Ingram also stated: “Up to the point where the men tried to kick out the windows in the police car, [I] had not charged them with anything, and had not arrested them, but had simply taken them into protective custody. . . . However, at the point where they were trying to kick out the windows ... [I placed them] under arrest for the offense of ‘disorderly while intoxicated.’ ”

Plaintiff Pinkston in his affidavit denied having “run-off” any teenagers; denied being drunk and disorderly; and denied that the fire at the pond was a “bonfire.” He stated the fire was only “about two to three feet in diameter and there was at least twenty feet of sand surrounding it so that it was not a hazard.” But he also stated he told the officer that he did not light the fire and “had no way to put it out.” He further swore that when Officer Ingram arrived there was only a one-liter bottle of tequila on the hood of the pick-up truck; “[o]nly the Ruger Mini-14 rifle was on the hood of the pick-up truck. It was not loaded. . . . The reason the rifle was on the hood of the truck was because a man who was there at the pond had asked to look at it. "... I have had a firearms license to carry a concealed weapon for the last ten years. . . . My current occupation is as a security guard. . . .” Plaintiff denied any lack of cooperation on his part or refusal to give information. He denied having dirt and mud all over him but stated: “I had one abrasion.” He stated that after being harassed by Officer Ingram for a length of time he finally refused to talk to him until Major Dunn arrived. He denied any obstreperous behavior after being put in the police car with Andrews who, he said, had “been in custody in the car for approximately two hours at this point.”

Thus, by plaintiff’s own statement, he was at a fire in a public place, with alcohol, displaying a weapon, and he refused to put out the fire. And, though he insists he was doing nothing wrong, he continued to parry with the officers for about two hours after Andrews had been placed in the police car.

The particular “malice” necessary to found a cause of action for false arrest (OCGA § 51-7-1, is “personal spite or ... a general disregard of the right consideration of mankind, directed by chance against the individual injured.” (Emphasis supplied.) OCGA § 51-7-2. The requisite “lack of probable cause” exists “when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. . . .” (Emphasis supplied.) OCGA § 51-7-3. Although this latter code section provides that such lack of probable cause “shall be a question for the jury,” there is nothing to send to the jury when the plaintiff does not at least raise some evidence creating an issue of fact on the matter, as it is his duty to prove the elements of the tort. Joiner v. Ocean Steamship Co., 86 Ga. 238 (12 SE 361).

Plaintiff’s own version admits enough to conclude beyond any issue of fact that his arrest was not based on the officers’ “personal spite or . . .a general disregard [for] mankind, directed by chance [at him],” (OCGA § 51-7-2); and that there was ample “ground for proceeding [other than the officer’s] desire to injure the accused” (OCGA § 51-7-3). (Emphasis supplied.)

Even assuming, arguendo, an absence of ordinary probable cause (reasonable suspicion), nevertheless, the law does not presume malice or animus against an officer merely because in the discharge of his legal functions, he does an illegal act. See Campbell v. State, 48 Ga. 354.

To have a cause of action and raise an issue of false arrest for a jury, plaintiff must at least show some evidence of the animus required by §§ 51-7-2 and 51-7-3. Therefore, even giving plaintiff the benefit of every doubt on defendants’ motion for summary judgment (Doug Howie’s &c. Dodge v. Chrysler Credit Corp., 191 Ga. App. 556 (382 SE2d 364); Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442)) so as to hypothecate that he was not drunk and disorderly, we must conclude he still has not raised against any of the officers an issue of the actual spiteful type of malice and lack of probable cause that must be present to support an action for “false arrest” under § 51-7-1 et seq.; and certainly the detention was not “unlawful” so as to amount to false imprisonment under § 51-7-20.

2. “The record is barren of any evidence of ‘implementation of an intentional policy or a constitutional deprivation resulting from an intentionally corrupt or impermissible policy’ so as to find a cause of action under 42 USC § 1983.” Holloway v. Rogers, 181 Ga. App. 11, 13 (351 SE2d 240). See generally Monell v. Dept. of Social Svcs., 436 U. S. 658 (98 SC 2018, 56 LE2d 611); Owen v. City of Independence, 445 U. S. 622 (100 SC 1398, 63 LE2d 673); City of Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892). Indeed, appellant has not even alleged that any of the asserted wrongs committed against him resulted from the enforcement or implementation of an intentionally corrupt or impermissible policy on the part of the city. It follows that he has asserted no basis for a recovery of damages against the city, with the result that the city was properly granted summary judgment.

3. Appellant’s slander claim is based on statements allegedly made by the officers who executed the arrest warrant on November 21, 1986, to the effect that he was being arrested for attempted escape. However, the officers have not been identified, and there is no question that this was in fact the charge for which he was arrested at that time. “ [I]t has long been held, both in the Supreme Court and this court that truth is a perfect defense in a civil action for libel or slander.” Savannah News-Press v. Hartridge, 110 Ga. App. 203, 206 (138 SE2d 173). It follows that the trial court did not err in granting summary judgment to the appellees on this count of the complaint.

4. The claim against appellee Carol Huff is based on allegations that she unlawfully refused to permit him to post his own bond when he was “booked” into the jail on the “disorderly while intoxicated” charge, thereby causing him to be confined in the “drunk tank” for an hour or two until a friend arrived to post bond for him. However, Ms. Huff, a civilian records clerk employed by the police department, averred in her affidavit that her duties as “booking officer” were merely “to fill out an arrest booking report which gives personal information on the subject, to make an inventory of [the defendant’s] belongings and reduce it to writing and have him sign it.” While she admitted having told the appellant “that he would not' be allowed to make bond until he sobered up or until some responsible person came to take custody of him,” there is no suggestion that this was a policy of her own making or that she had any discretion in the matter. Accordingly, the trial court was also correct in concluding that she was entitled to summary judgment.

5. The defendants, Officers Dawson, O’Conner and Williams, each averred without dispute that he had merely witnessed the arrest without actively participating in it. We have held, in any case, that there was no “false arrest.” Accordingly, the trial court did not err in awarding summary judgment to these three appellees with respect to appellant’s false arrest and/or false imprisonment claims.

6. The remaining defendant, appellee Lee N. Johnston, Jr., is alleged to be liable for false arrest based on his conduct in swearing out the warrant for appellant’s arrest on the charge of criminal attempt to escape. Officer Johnston averred that he signed the affidavit for the warrant “[pjursuant to an order of the Recorder of the City of Albany ordering that the case of ‘disorderly while intoxicated’ against [appellant] be transferred to the state court as a charge of ‘criminal attempt to escape,’ and based on the information available to affiant from the plea records, which in affiant’s opinion constituted probable cause to believe that [appellant] had committed the offense of criminal attempt to escape by trying to kick out the window of a police car in which he had been confined. . . .” These averments establish without dispute that Johnston was not acting maliciously in swearing out the warrant but was simply complying in good faith with instructions given to him by the judicial officer to whom the case was then assigned. See OCGA § 51-7-21, as to any possible claim for false imprisonment for this arrest. It follows that he, too, was entitled to summary judgment.

Judgment affirmed.

Cooper, J., concurs. Banke, P. J., concurs specially.

Banke, Presiding Judge,

concurring specially.

1. I agree that appellees Ingram and Dunn, the officers who arrested the appellant on the original charge of “disorderly while intoxicated,” were entitled to summary judgment on the appellant’s false arrest claim arising from that incident; however, I reach that conclusion by a different route from that traveled by the majority.

The majority concludes that Ingram and Dunn were entitled to summary judgment because the appellant failed to present evidence “of the actual spiteful type of malice and lack of probable cause that must be present to support an action for ‘false arrest’ under § 51-7-1 et seq. ...” I cannot agree that there is a special “spiteful kind of malice” which must be proven in false arrest actions, as opposed, presumably, to a lesser, non-spiteful kind of malice which will suffice in other types of actions in which proof of malice is required. Furthermore, I believe the majority’s analysis improperly shifts to the appellant the burden of proving his case on motion for summary judgment. The appellant unequivocally averred in his affidavit that he had been neither drunk nor disorderly at the time of his arrest. If that is true, then the officers obviously had no cause to arrest him on the charge of disorderly while intoxicated; and under OCGA § 51-7-44 the absence of such cause is a circumstance from which malice could be inferred. While the appellant’s credibility on this issue is certainly open to question, it is axiomatic that “the trial court cannot in considering summary judgment weigh the evidence or determine its credibility.” State Farm Fire &c. Co. v. Martin, 174 Ga. App. 308, 309 (329 SE2d 577) (1985). Accord Ash v. Spear, 137 Ga. App. 12, 13 (223 SE2d 26) (1975). See also Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975). Furthermore, OCGA § 51-7-3 specifically states that “[l]ack of probable cause shall be a question for the jury. ...”

I would hold that Ingram and Dunn were entitled to summary judgment on the false arrest claim not because of the appellant’s failure to establish the existence of a material factual conflict with regard to his conduct and condition on the night in question but because it is apparent without dispute from the record that there has never been any formal disposition of the charge for which they arrested him. “To recover in tort for either malicious prosecution or malicious [or false] arrest, the [plaintiff has] the burden of showing that the prior criminal proceeding, whatever its extent, ha[s] terminated in [his] favor.” McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983). Accord Smith v. Embry, 103 Ga. App. 375, 379-81 (119 SE2d 45) (1961). Although the more serious charge of attempted escape which was later filed against the appellant was nolle prossed for lack of evidence after being transferred to state court, the disposition of that charge clearly did not constitute an adjudication that no evidence existed to support the original charge of disorderly while intoxicated. Thus, I would hold that appellees Ingram and Dunn were entitled to summary judgment on the false arrest claim “on the ground that no [such] cause of action had yet accrued.” McCord v. Jones, supra, 168 Ga. App. at 893.

2. In false imprisonment cases, “it is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful.” Collins v. Sadlo, 167 Ga. App. 317, 318 (306 SE2d 390) (1983). Where, on the other hand, recovery is sought against a police officer for effecting an unlawful arrest without a warrant, proof of malice and want of probable cause clearly is required; and the cause of action therefore is for false arrest rather than for false imprisonment. See generally OCGA § 51-7-1; Smith v. Embry, 103 Ga. App. 375, 378 (3) (119 SE2d 45) (1961). There being no question that Ingram and Dunn were acting in their official capacity as police officers in arresting the appellant, I accordingly agree that the appellant has no cause of action against them for false imprisonment.

Decided June 6, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

James N. Finkelstein, for appellant.

Landau & Davis, Al Grieshaber, Jr., James V. Davis, for appellees.

3. I concur fully in the remainder of the majority opinion.

       While this Code section appears in the portion of Title 51 dealing with malicious prosecution actions, there is no reason why it would not also apply to false arrest actions. Cf. McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983) (holding that “[m]alicious prosecution and malicious arrest differ only in that malicious prosecution contains the additional element of showing that a prosecution was carried on”).


author: Birdsong, Judge.

text:
    A90A0266.
    CHASTAIN v. THE STATE.
    (395 SE2d 570)
   Birdsong, Judge.

Chastain appeals his conviction of violating the Georgia Controlled Substances Act by trafficking in cocaine. The cocaine was found in his automobile after he was stopped at a police “courtesy roadblock.” He contends the trial court erred by denying his motion to suppress the cocaine and admitting in evidence a statement he made to the police. Held:

1. Chastain’s first enumeration alleges the trial court erred by denying his motion to suppress the drugs seized because he did not consent to the search, and the search was conducted through the use of pretext. He maintains the search was illegal because he was stopped at a police roadblock, was told that his car was going to be searched and was not asked for his consent, and was not told the purpose or scope of the search.

The State contends, however, that Chastain was lawfully stopped at the roadblock, was detained for further investigation because he apparently hid something as he approached the roadblock, and was asked for and gave his consent before his car was searched. Further, he voluntarily assisted in the search and did not at any time during the search withdraw his consent. The State also contended that once Chastain consented to the search of the car, there was no requirement to obtain his consent each time a container in the car was searched.

This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. Brown v. State, 190 Ga. App. 324, 326 (378 SE2d 908). We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous. Ragin v. State, 192 Ga. App. 686, 687 (385 SE2d 770); Watson v. State, 190 Ga. App. 696 (379 SE2d 817). Further, “ ‘[o]n motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings . . . are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them].’ [Cit.]” Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150).

Contrary to Chastain’s assertions, the evidence supports the trial court’s findings that the roadblock was not conducted as a pretext for a search of his car, and that the roadblock was authorized. State v. Golden, 171 Ga. App. 27 (318 SE2d 693). Further, the officer’s testimony about Chastain’s actions as he approached the roadblock was sufficient to warrant the trial court’s finding that the officers were authorized to conduct a further investigation and to request Chastain for his consent to search the car. See Brooks v. State, 129 Ga. App. 109 (198 SE2d 892).

Moreover, the record supports the trial court’s finding that Chastain voluntarily consented to a search of the car. Therefore, the officers were authorized to search the car and its contents unless Chastain withdrew his consent or limited the scope of the search. See Borda v. State, 187 Ga. App. 49, 50 (369 SE2d 327); Mixon v. State, 184 Ga. App. 623, 624 (362 SE2d 111). The evidence does not show that he did either. Instead, the record shows that he voluntarily opened the car’s trunk and the briefcase for the officers. Further, Chastain’s argument regarding the authorized scope of the search is not applicable to a consent search in which no restrictions were imposed.

The record is sufficient to support the finding that the State met its burden of demonstrating that Chastain voluntarily consented to the search, and that his consent was not the result of duress or coercion, express or implied. See Lombardo v. State, 187 Ga. App. 440 (370 SE2d 503). Therefore, the trial court did not err by denying this motion to suppress.

2. Chastain also asserts that the trial court erred by admitting in evidence the statement he made to the police to the effect that he was only keeping the cocaine for someone who asked him to hold it until after Christmas. At trial he argued that the statement should not be admitted because the police had not followed the usual procedures for taking statements since there was no signed rights waiver and the statement was not reduced to writing, and he was offered the hope of reward or benefit for making the statement. See OCGA § 24-3-50. The trial court, however, found the testimony of the police witnesses more creditable than Chastain’s, and, therefore, found the required warnings had been given, Chastain understood his rights, and voluntarily waived them without hope of reward or benefit.

Although inconsistent with Chastain’s testimony, the trial court’s findings are based upon the testimony of the various law enforcement officials in the Jackson-Denno hearing, and there is evidence of record supporting each of the findings.

Decided May 25, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

William L. Auld, Weaver & Weaver, Brenda S. Weaver, George W. Weaver, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk, Assistant District Attorney, for appellee.

On appeal, where the evidence is in conflict, the trial court’s findings on factual determinations and credibility will be upheld unless clearly erroneous. Short v. State, 256 Ga. 165, 167 (345 SE2d 340); Head v. State, 191 Ga. App. 262, 264-265 (381 SE2d 519). Our review of the record shows that the trial court’s determinations were not clearly erroneous, and there was no error in the admission of the statement.

Judgment affirmed.

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


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

text:
    A90A0369.
    WYNN v. FULTON-DeKALB HOSPITAL AUTHORITY.
    (395 SE2d 343)
   Carley, Chief Judge.

Appellant-plaintiff filed this medical malpractice action against appellee-defendant. Appellee answered and raised, among its other defenses, charitable immunity. After discovery, appellee moved for summary judgment based upon its charitable immunity defense. The trial court granted summary judgment in favor of appellee and appellant appeals.

“It has long been the rule in Georgia that ‘an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.’ [Cit.]” Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) (353 SE2d 515) (1987). There is, however, an exception to this doctrine of charitable immunity. “Where a patient in such an institution is not the recipient of its charity, but is able to pay and does pay for the services, and is injured on account of carelessness, negligence, or incompetence of an officer or employee of the institution, the corporation is liable therefor. . . .” Morton v. Savannah Hosp., 148 Ga. 438 (5) (96 SE 887) (1918).

Decided June 12, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellant.

Alston & Bird, Judson Graves, Paul J. Quiner, Bryan A. Vroon, Karen L. Abrahams, Hart & Sullivan, Alexander H. Booth, for appellee.

Although certain of appellee’s patients, including appellant, may be required to pay a portion of the medical expenses that they incur, appellee nevertheless retains its status as a charitable institution. Such patients are the recipients of appellee’s charity to the extent that they are not required to pay full compensation for the medical services rendered to them. See Butler v. Berry School, 27 Ga. App. 560, 562 (109 SE 544) (1921). Accordingly, as against those patients, including appellant, who are required to pay only a portion of their medical expenses, the doctrine of charitable immunity remains viable. The “paying patient” exception to the doctrine of charitable immunity applies only to those patients who pay full compensation and who are not, therefore, extended any charity whatsoever. There is no “partially paying patient” exception to the doctrine of charitable immunity. Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (385 SE2d 436) (1989). “The undisputed evidence of record shows that appellant was the recipient of appellee Hospital’s charity and that the doctrine of charitable immunity is, therefore, viable and controlling as to appellee Hospital.” (Emphasis in original.) Cutts v. Fulton-DeKalb Hosp. Auth., supra at 518 (1). It follows that the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Sognier, J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

I concur fully with the majority opinion and all that is said therein and write only to emphasize that the recurring issue presented in the case sub judice has been resolved. As stated by the majority: “The ‘paying patient’ exception to the doctrine of charitable immunity applies only to those patients who pay full compensation and who are not, therefore, extended any charity whatsoever. There is no ‘partially paying patient’ exception to the doctrine of charitable immunity.” This rule dates back at least 72 years to the decision in Morton v. Savannah Hosp., 148 Ga. 438 (5) (96 SE 887), and, with the case sub judice, has been consistently applied by this Court for the third time in the past year, in each instance in litigation involving this same defendant. See Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (385 SE2d 436) and Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205).

William Q. Bird, Frank J. Beltran, amici curiae.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0411.
    CARLIN v. FULLER.
    (395 SE2d 247)
   Deen, Presiding Judge.

On June 15, 1981, the appellee, Alta Mae Fuller, sold almost 519 acres of land to James Bland, who executed a promissory note and a deed to secure debt in favor of Fuller. The promissory note provided for a specific disposition of proceeds from the sale of any timber on the land. On February 16, 1982, Bland sold the property to the appellant, M. A. Carlin, who assumed the note and leased the property back to Bland. Subsequently, the house on the property burned, and the homeowner’s insurance carrier (on a policy purchased by Bland) paid $20,000 to Fuller instead of Bland under the standard mortgagee clause because of Bland’s misrepresentation of ownership at the time of the application.

Carlin eventually commenced this action against Fuller seeking (1) a credit for the insurance proceeds against the note she assumed in purchasing the property; (2) injunctive relief requiring Fuller to consent to the cutting and sale of timber on the land; and (3) damages for conversion of a sugar cane mill that was removed from the property by Fuller’s husband. Fuller counterclaimed for $270 proceeds from the sale of timber on the property, and for damages for abusive litigation. The trial court granted summary judgment for Fuller on Carlin’s claims for the insurance proceeds and for consent to the harvesting of timber on the land, and this court affirmed that adjudication. Carlin v. Fuller, 189 Ga. App. 845 (377 SE2d 877) (1989). Subsequently, the trial court directed a verdict against Carlin on the conversion claim, and directed a verdict for Fuller on the claim for $270 proceeds from the sale of timber. The jury returned a $335,000 verdict for Fuller on the abusive litigation claim, and this appeal followed. Held:

1. When Fuller sold the land to James Bland, on the property there was a sugar cane mill placed in a shed which was attached to four posts in the ground. The Fullers testified that they had made it clear at the time of the sale that the purchase did not include the sugar cane mill, which belonged to Fuller’s husband. Bland denied that, and instead claimed that he only allowed Fuller’s husband to come on the land and use the sugar cane mill at his pleasure. After Bland sold the land to Carlin, Fuller’s husband removed the mill and sold it to an antiques dealer. The trial court properly directed verdict for Fuller, on the basis that there was no evidence that Fuller, as opposed to her husband, had anything to do with the removal of the mill. Fuller’s testimony on cross-examination that she would not give her husband a hard time about it if he had wanted to sell something out on the property, did not establish an agency between Fuller and her husband.

2. The note held by Fuller provided that any proceeds from the cutting of timber on the land were to be applied against the amount due under the note. In 1983, Fuller’s husband discovered and stopped a sawmill crew cutting timber on the property. That sawmill consequently tendered a check for $270 to Fuller, made out to Fuller and Carlin as joint payees, to cover 6 cords of wood it had cut down. Fuller sent the check to Carlin, who never endorsed the check or returned it to Fuller because she thought the sawmill had cut down more than 6 cords. The evidence provided no defense to Fuller’s claim for the $270, and the trial court thus properly directed a verdict for Fuller on that claim.

3. In her counterclaim, Fuller originally sought $50,000 for damages to her peace of mind and wounded feelings, plus $10,000 for expenses of litigation. On the day of trial, Fuller sought leave to amend the counterclaim to increase the prayer for damages to $1 million, but the trial court considered it unconscionable to raise the demand at that time. Fuller also at that time elected to pursue damages for peace of mind and wounded feelings solely under OCGA § 51-12-6. At the close of the evidence, however, the trial court allowed the amendment to the counterclaim to remove any specific cap on the amount of damages sought. The end result was the $335,000 verdict for Fuller.

OCGA § 51-12-6 provides that “[i]n a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of -impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.” During closing argument, Fuller’s counsel emphatically argued that Carlin “needs to be punished and penalized so that she won’t ever think about doing it again.” Counsel for Carlin objected that such argument improperly invited the jury to award punitive damages, and requested curative instructions, but the trial court overruled the objection.

Fuller’s closing argument clearly asked for punitive damages, and this was improper. “It is, upon timely objection, error to decline to rebuke counsel and to give cautionary instructions to the jury. [Cits.] The gist of the error is that where the rebuke is not made or cautionary instructions given the improper argument goes with the apparent sanction of the court. [Cit.]” Howard v. Renfroe, 93 Ga. App. 59, 62 (90 SE2d 598) (1955). The trial court erred in not instructing the jury accordingly, and given the size of the verdict we cannot say that the error was harmless.

It is true, as the dissent points out, that during closing argument both parties engaged in developing a metaphor, with the parties as feuding children and the jury as the parent who bore the task of deciding which “child” was at fault and in need of discipline. But this metaphorical analysis, even though it literally referred to punishment, did not address the matter of punitive damages, the purpose of which is to compensate for wounded feelings or to deter the wrongdoer from repeating the trespass. OCGA § 51-12-5, generally; Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975). The issue of punitive damages was not raised until counsel for Fuller declared that Carlin “needs to be punished and penalized so that she won’t ever think about doing it again.” There was nothing metaphorical about this argument, and counsel for Carlin promptly and properly objected. Consequently, contrary to the position of the dissent, Carlin did not “open the door” to this issue, and did not waive any objection to the impermissible request for punitive damages.

4. With regard to Carlin’s remaining enumerations of error, we find no reversible error.

Judgment reversed.

Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Carley, C. J., McMurray, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent to the reversal, which is based on the trial court’s failure to give curative instructions after objection to the mention of punishment in the argument of counsel for the party asserting the Yost claim.

In the opening part of the closing argument, counsel had focused on the behavior of plaintiff in bringing what was described as an unjustifiable lawsuit and asked the jury “to award [Mrs. Fuller] damages for having to put up with Mrs. Carlin since 1983; for having to come into court and defend herself when [Mrs. Carlin] had no claim to any of the areas that she asserted a claim to.”

The plaintiff Carlin’s counsel argued. He told the jury that “it’s up to you to decide whether discipline is needed against one or the discipline is needed against both or whether both should have learned from this experience and need to go away from here learning from that experience and having gained enough knowledge in this case, if nowhere else, to know that it does not pay to misunderstand one another, to bicker with one another, that you ought to have it clear up front and understood. . . . The judge will tell you what the law is as it applies to the case, but then you will apply the law to the facts. . . . [Mrs. Fuller’s] coming into this court . . . saying, hey, look, this woman over here’s been bad to me. She — She’s been saying bad things about me or she’s giving me a hard time and I don’t like it and I want you to punish her. I want you to really punish her bad. That’s what they’re saying, in effect. Well, before you decide to punish a child you’re going to want to determine, hey, did that child really do something that bad that needs — you know, that I’m going to need to beat ’em for it, that I’m going to need to ground ’em for, or I’m going to need to do anything other than give them a talking to, or is the one doing the complaining the one we need to discipline or show them that that’s not the right thing to do and how do you do it. I can’t tell you how to do it. I mean, I’m just trying to give you an idea of kind of what you’re looking at. . . . Now, are we (the jury) going to spank one of ya’ll (the parties) or are we going to punish one of ya’ll in some way because of this misunderstanding that apparently was not malicious or intentional, but it happened, or are we going to hope that you’ve got the good sense to leave this thing alone? That’s what we’re (counterdefendant) asking you to do, is to let these folks be adults. . . . They’re (counterclaimant) asking for you all to really throw it to Mrs. Carlin. Two children had a misunderstanding on the playground and they want you to go out and beat the daylights out of one of them. If you think that’s the fair thing to do, it’s your decision.”

After that argument, in which the idea of punishment was repeatedly mentioned, the Yost claimant’s other counsel closed the argument. He dwelt at length and heavily on actions of plaintiff Carlin in bringing the lawsuit and on the suffering of the elderly Mrs. Fuller. In rebuttal to the argument of Mrs. Carlin’s counsel, he pointed to a portion of her complaint and said: “You talk about children fighting back and forth and children need spanking. That one allegation deserves Mrs. Carlin a good spanking.” No objection was made.

In alluding to Mrs. Carlin’s “worldly circumstances” and experience in lawsuits, counsel argued: “A million dollar verdict against this lady isn’t going to hurt her.” Because of what she did, “She needs to be punished.” No objection was made to. either statement.

In winding up, counsel focused on the harm done to Mrs. Fuller and concluded that “[Mrs. Carlin] needs to be punished and penalized so that she won’t ever think about doing it again.” It was then that counterdefendant’s counsel objected to argument about penalties, stating that “he’s not asked for that in the case and I think that the court might need to address that with the jury.” The court overruled the objection and proceeded to charge the jury.

In the instructions, the court fully charged on the elements of a Yost claim and explained that “Mental suffering occurs when a person has suffered injury by the conduct of another which is willful or wanton and reckless disregard of the consequences of that conduct.” The court made it clear that the only damages sought for bringing what Mrs. Fuller claimed was a lawsuit “without any substantial justification” were damages for the injury “to the peace, happiness or feelings of Mrs. Fuller.” The court explained that “damages are given as pay or compensation for injuries done . . . fair to both parties.”

The court instructed that the measure of damages for this described injury was the jury’s enlightened conscience, and that it should consider “the worldly circumstances of the parties, the amount of bad faith in the transaction, and all of the attendant facts about the case.” It concluded on the subject of damages by stating: “After you do that then you would fix such sum as you think would be reasonable, fair and just in your enlightened conscience.”

The pleadings went out with the jury, and there is no mention whatsoever of punitive damages in the counterclaim. Instead, it asks for damages for what the counterclaimant has suffered.

In this setting, reversal is not warranted. The following reasons mandate affirmance:

1. The subject of punishment was brought up by the party who now complains about it. Her complaint is vacuous. If there was any confusion in the jurors’ minds, she initiated it. Price v. Hitchcock, 174 Ga. App. 606, 607 (2) (330 SE2d 807) (1985); Pegg v. State, 183 Ga. App. 668 (2) (359 SE2d 678) (1987).

2. What appellant specifically complains about was simply a response to what appellant had argued, a use of the same metaphor. No harm ensued. Smith v. Smith, 125 Ga. App. 257, 258 (4) (187 SE2d 330) (1972).

3. When the objection was made, it was too late. Argument of the very same nature had been made earlier, without objection, and the repetition was merely cumulative. Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (2) (199 SE2d 881) (1973).

4. The tort known as a Yost claim is by its very nature punitive. It allows a person to be punished by the imposition of monetary damages of some species or another for bringing a frivolous lawsuit. It is a sanction against abuse of the civil court system. Thus to talk of “punishment” in this broad sense is not out of line even when the sole injury claimed is to the peace, happiness, or feelings of the claimant under OCGA § 51-12-6.

5. Mrs. Fuller’s counterclaim, her argument, and most importantly here, the court’s charge, made it abundantly clear to the jury that the damages, if any, were to be within the confines of that Code section.

Decided May 18, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, Sylvester & Associates, Chuck Sylvester, for appellant.

Smith & Harrington, Will Ed Smith, Harrison, Harrison & Llop, Milton Harrison, Rita J. Llop, for appellee.


text:
    A90A0478.
    SOUZA v. SOUZA.
    (395 SE2d 298)
   Birdsong, Judge.

We granted this discretionary appeal to review the refusal of the trial court to dismiss a garnishment of Wayne Souza’s U. S. Marine Corps pay to collect past due child support ordered by a divorce judgment. Held:

Wayne Souza contends that the trial court lacked jurisdiction because he alleges that the garnishee, the Marine Corps Finance Center, is located in Missouri and he is stationed in North Carolina. The motion contended that only a court having jurisdiction over the garnishee can order a garnishment, and since the Marine Corps Finance Center is in Missouri and not within the jurisdiction of the court, the court lacked jurisdiction.

Rachel Souza contends, however, that the court had jurisdiction because the garnishee is the Marine Corps, her ex-husband’s employer, and the U. S. Marine Corps is within the jurisdiction of the court. She contends she only served the Marine Corps Finance Center only because the federal statute (42 USC § 659 (b)) and federal regulations (5 Code of Federal Regulations (“CFR”), Part 581, Ch. 1, Appendix A) compelled her to do so. Therefore, she contends that OCGA § 18-4-61 authorized bringing the garnishment in the trial court.

Although Wayne Souza argues that this case is governed by our decision in Nelson v. Nelson, 173 Ga. App. 546, 548 (327 SE2d 529), we find that case distinguishable. This appeal concerns a military member of the U. S. Marine Corps, whereas Nelson v. Nelson concerned a civilian employee apparently of a particular Army installation in Alabama. The U. S. Marine Corps, however, has a presence in this State. Accordingly, we find significant differences between the two which may require different treatment of the cases, and Nelson v. Nelson, supra, is not controlling.

In 42 USC § 659 (a) the United States waived its sovereign immunity to permit garnishment of military pay to collect child support and alimony. Williamson v. Williamson, 247 Ga. 260, 263 (275 SE2d 42). The waiver of immunity included a plan allowing service of process by mail upon “the appropriate agent designated for receipt of such service of process pursuant to regulations promulgated” to implement the Code section. See 42 USC § 659 (b). The particular federal regulation required the process be served upon the “designated agent of the governmental entity which has moneys due and payable to the obligor, legal process which names the governmental entity as the garnishee.” 5 CFR § 581.202 (a). The designated agent to accept service of process for the Marine Corps is the Commanding Officer, Marine Corps Finance Center, Kansas City, Missouri. 5 CFR Part 581, Appendix A.

Thus, the United States has created a plan for perfecting service of process on the U. S. Marine Corps by serving by registered mail the Commander of the Finance Center in Kansas City, Missouri. These procedures, however, do not make the Commander of the Marine Corps Finance Center Souza’s employer/garnishee, any more than the registered agent for service of process of a particular corporation would become the employer/garnishee of the corporation’s employees. Therefore, Wayne Souza’s arguments based upon this contention are without merit. The lower court was authorized to determine whether it had jurisdiction in this matter (Williamson v. Williamson, supra), and since Wayne Souza has not otherwise contested the jurisdiction of the court over the U. S. Marine Corps, it did not err by denying his motion.

Further, it is not significant that Wayne Souza’s military paycheck may issue from outside the state as long as his employer/garnishee is within the jurisdiction of the court. United Merchants &c. v. C & S Nat. Bank, 166 Ga. App. 468, 469 (304 SE2d 552); Pollock Paper Corp. v. Klebold, 104 Ga. App. 653, 655 (122 SE2d 459); J. Austin Dillon Co. v. Edwards Shoe Stores, 53 Ga. App. 437, 439 (186 SE 470). This appeal differs from the situation in Williamson v. Williamson, supra, in which our Supreme Court found that military pay was not constructively present in this State for jurisdiction to attach because here there is no requirement that the pay be in this State. Phillips v. Phillips, 159 Ga. App. 676, 678 (285 SE2d 52); Southern R. Co. v. Coleman, 80 Ga. App. 227, 229 (55 SE2d 825).

Moreover, service of process was made on the designated agent in the manner prescribed by federal law, and the record shows that the defendant in this case has not contested service. In these circumstances, service of process is not in issue. Jones v. Jones, 209 Ga. 861, 862-863 (76 SE2d-801); Nelson v. Nelson, supra; Phillips v. Phillips, supra. Therefore, we find that the trial court did not err by refusing to dismiss the garnishment.

Judgment affirmed.

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

Decided June 4, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Joe R. Edwards, Tyrus R. Atkinson, Jr., for appellant.

Monroe Ferguson, for appellee.


author: Banke, Presiding Judge.

text:
    A90A0489.
    SHEARS v. HARRIS.
    (395 SE2d 300)
   Banke, Presiding Judge.

The appellant filed suit against the appellee on January 21, 1987, to recover for injuries she had allegedly sustained in an automobile accident which had taken place on February 25, 1985. On June 23,

1987, International Indemnity Company was served as the appellant’s uninsured motorist carrier; and that company subsequently filed an answer in its own name. Service was not perfected on the appellee until September 28, 1988, some 31 months after the accident and 20 months after the filing of the complaint. The trial court granted summary judgment to the appellee on the ground that the appellant had failed to exercise due diligence in perfecting service upon her, and this appeal followed.

In an effort to show that he had exercised due diligence in attempting to perfect service on the appellee, counsel for the appellant submitted affidavits from five private investigators detailing their cumulative efforts to locate the appellee during the 20-month period after the complaint was filed. Although appellant’s counsel represented to the triál court that all of these investigators had been hired by him, he has conceded in a brief filed in this court that he actually only hired two of them and that the remainder were retained by the uninsured motorist carrier. Appellant’s counsel averred that he hired the first investigator about a month after filing the complaint (by which time the limitation period had already run), after first attempting to locate the appellee by checking telephone directories and hiring a skip tracer. One of the investigators retained by the appellant worked for only three weeks, while the other worked sporadically from March through June of 1987. The appellee was finally located on August 22, 1988, by one of the investigators hired by the uninsured motorist carrier. She was served with a copy of the appellant’s complaint approximately a month later, on September 28, 1988. Held:

Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (3) (307 SE2d 134) (1983). The plaintiff has the burden of showing that due diligence was exercised. Smith v. Griggs, 164 Ga. App. 15, 18 (2) (296 SE2d 87) (1982); Bowman v. U. S. Life Ins. Co., supra. Ordinarily, “[t]he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138) (1984).

Decided June 4, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Guy G. Michaud, Christopher J. McFadden, for appellant.

The appellee contends that the trial court’s determination in the present case that the appellant had failed to exercise due diligence must be upheld under Freemon v. Dubroca, 177 Ga. App. 745 (2) (341 SE2d 276) (1986), because here, as in that case, the appellant’s efforts were “intermittent and wholly ineffective.” The defendant in Freemon had been served by a professional process server some nine months after the complaint was filed. It was shown there that no investigative attempts had been made to find the defendant before the process server was retained, that the server had been able to locate the defendant within seven days after being appointed, and that he had done so at the same address originally provided to the marshal at the time the suit was filed.

It is apparent that the whereabouts of the appellee in the present case were more difficult to ascertain, since several investigators had attempted without success to find her before she was finally located and served. Nevertheless, we conclude that the evidence did not demand a finding that appellant’s counsel exercised due diligence. The brief which he submitted in opposition to the appellee’s summary judgment motion contained misleading statements concerning who had retained the various investigators hired to locate the appellee, and his affidavit was vague and unrevealing on the issues of when and by what means he had finally learned of the appellee’s whereabouts, and how long he had waited thereafter before obtaining service on her. As the burden was on the appellant to show that she had exercised due diligence to insure that proper service was effected as quickly as possible, we must conclude that her claim against the appellee was properly subject to dismissal under these circumstances on the ground that it was barred by the applicable statute of limitation.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Mozley, Finlayson & Loggins, Robert M. Finlayson II, R. Ann Grier, Lane, O’Brien & Coburn, Eugene O’Brien, for appellee.


text:
    A90A0492.
    REYNOLDS et al. v. FIRST PORT CITY BANK.
    (395 SE2d 262)
    Decided May 25, 1990
    Rehearing denied June 21, 1990 — Cert, applied for.

      William U. Norwood III, for appellants.

      Kirbo & Conger, James W. Conger, Jr., Ben Kirbo, Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, for appellee.
   Banke, Presiding Judge.

The appellee, First Port City Bank, sued the appellants, Wilton B. Reynolds and Bennett T. Eubanks, on a.guaranty contract pertain-, ing to certain indebtedness owed by a corporation known as Hawthorne Trail Products, Inc. (HTP). The appellants counterclaimed to recover damages for abusive litigation. The trial court granted summary judgment to the appellee on the main claim and, consistent with that ruling, denied the appellants’ motions for summary judgment on their counterclaims. This appeal followed. Held:

1. The appellants contend that there is evidence that the bank improperly failed to credit two payments it had received, in the amounts of $25,000 and $13,008.26, respectively, against the indebtedness covered by their guaranty obligations. These payments were received by the bank in connection with the liquidation of certain collateral pledged to it by HTP’s president, Hollis, arid by Hollis’ wife. Hollis had also personally guaranteed HTP’s debts, and he and his wife were additionally indebted to the bank on several personal loans. The bank was clearly authorized pursuant to the security agreements executed by Hollis and his wife to apply the payments in question against their personal indebtedness rather than against the corporation’s indebtedness, notwithstanding any instructions to the contrary it might have received from Hollis and/or his agents. See generally Bank of Georgia v. Card, 84 Ga. App. 142 (65 SE2d 841) (1951).

2. Since the appellee prevailed in the action, its complaint obviously did not lack substantial justification, with the result that the appellants clearly were not entitled to summary judgment on their counterclaim.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0554.
    MATTOX v. THE STATE.
    (395 SE2d 288)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of theft by shoplifting and giving a false name to a law enforcement officer. She appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. For impeachment purposes, the trial court allowed the State, over objection, to cross-examine appellant with regard to her post-arrest silence. The trial court’s failure to sustain the objection to this line of cross-examination is enumerated as error.

In Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976), the Supreme Court of the United States held that, since Miranda warnings may induce a defendant’s post-arrest, silence by implicitly assuring him that his silence will not be used against him, it would be fundamentally unfair and a violation of due process to allow the defendant’s silence to be used to impeach him at trial. However, the Supreme Court subsequently held that Doyle is inapplicable in cases in which the defendant has not received any Miranda warnings. Fletcher v. Weir, 455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982). Here, as in Bennett v. State, 254 Ga. 162, 166 (4) (326 SE2d 438) (1985), “the record does not indicate whether [appellant] received any Miranda warnings. Thus, we cannot determine from the record before us whether the silence used by the [S]tate to impeach [appellant] occurred before or after Miranda warnings were given. In this regard, at least one court has held that, when a defendant objects to a prosecutor’s cross-examination with respect to his post-arrest silence, the [S]tate has the burden ‘to establish that Miranda warnings were not given prior to the silence relied on for impeachment purposes.’ United States v. Cummiskey, 728 F2d 200 (5) (3rd Cir. 1984). But see State v. McGinnis, 320 SE2d 297 (4-5) ([N.C. App.] 1984) (placing the burden on the defendant).”

Appellant urges that her objection to the use of her post-arrest silence placed the burden on the State to demonstrate that her silence occurred before she had been given the Miranda warnings and that, insofar as this burden was not met, her conviction should be reversed. Although Bennett alluded to the question of whether it is the State or the defendant that has the burden of establishing that Miranda warnings were or were not given, that issue was not decided because it was otherwise found that any error in that case would be harmless. Accordingly, the determination of whether the defendant has the burden of showing a Doyle v. Ohio violation or the State has the burden of showing the applicability of Fletcher v. Weir is one of first impression in this State.

As previously noted, United States v. Cummiskey, supra, holds that the burden is upon the State. That decision is not, however, binding on this court. Moreover, the holding in Cummiskey was not predicated upon constitutional grounds, but upon the Federal Rules of Evidence which have no applicability in this state. Only decisions rendered by the Supreme Court of the United States and the Supreme Court of Georgia are binding on this court. In Fletcher v. Weir, supra, that Court, after noting that the record did not indicate whether the defendant had received Miranda warnings during the period of silence immediately after his arrest, reversed the lower court’s grant of a writ of habeas corpus. If the burden were on the State, a failure of the record to indicate whether the defendant had received any Miranda warnings would presumably have resulted in the Supreme Court’s affirmance rather than its reversal of the grant of a writ of habeas corpus. Accordingly, we construe Fletcher v. Weir, supra, as authority for the proposition that, as a matter of constitutional law, the burden may be placed upon the defendant to show that the Miranda warnings were given prior to his silence that is relied upon by the State for impeachment purposes. “We believe that in the present posture of the law, it is necessary that the defense make such a showing before Doyle v. Ohio, [supra,] comes into play.” (Emphasis supplied.) Weir v. Wilson, 744 F2d 532, 535 (6th Cir. 1984), cert. denied 469 U. S. 1223 (105 SC 1215, 84 LE2d 356) (1985). See also State v. Cummings, 779 SW2d 10, 12 (3) (Mo. App. 1989); Royal v. State, 761 P2d 497 (Okl. Cr. 1988); State v. McGinnis, supra.

Since there is no constitutional requirement that the burden be placed upon the State, resolution of the issue is dependent upon the applicable provisions of state law. Placing the burden upon the defendant is not violative of, but consistent with, the general principles of this state’s law. “The burden is on the defendant in asserting error to show it affirmatively by the record. . . . [Cits.]” Dean v. State, 168 Ga. App. 172, 173 (1) (308 SE2d 434) (1983). See also State v. McGinnis, supra. Compare United States v. Cummiskey, supra (holding that the burden is upon the State under the applicable Federal Rules of Evidence). The record shows that appellant did not meet her burden of showing that her post-arrest silence occurred after the Miranda warnings had been given to her. Thus, we find no error in the State’s use of appellant’s silence for impeachment purposes in the instant case.

2. The trial court’s admission into evidence óf a bookbag which was “similar” to the one purportedly used by appellant to conceal the stolen goods is enumerated as error.

Appellant urges that the bookbag which was admitted into evidence was not shown to have any connection with her or to be sufficiently similar to her bookbag. However, the record shows that appellant “admitted possession of a [bookbag], described it and pointed out the ways in which it was dissimilar from the one offered in evidence. Under these circumstances, there was no harmful error. [Cits.]” Jones v. State, 190 Ga. App. 416, 418 (2) (379 SE2d 189) (1989).

Decided May 30, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Donald T. Wells, Jr., for appellant.

Ken Stula, Solicitor, Kip Shepherd, Assistant Solicitor, for appellee.

3. Appellant enumerates as error the trial court’s refusal to give her requested instructions regarding the legal effect of mere presence at the scene of a crime, mere association with persons involved in the commission of a crime and a mere grave suspicion of guilt arising from the facts and circumstances.

“It is, of course, true that mere [presence, association or suspicion], without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction. [Cits.] However, in the present case, the [S]tate’s evidence showed more than [mere presence, association or suspicion].” Muhammad v. State, 243 Ga. 404, 405-406 (1) (254 SE2d 356) (1979). “In the instant case we have the additional evidence of flight [and concealment of goods].” Maddox v. State, 170 Ga. App. 498, 499 (3) (317 SE2d 617) (1984). The principles contained in appellant’s requested instructions are no more than corollaries “to the requirement that the [S]tate prove each element of the offense charged.” Muhammad v. State, supra at 406 (1). “The trial court gave a full and correct charge on the presumption of innocence and on the requirement that the [S]tate prove each and every element of the offenses charged, including the element of criminal intent, beyond a reasonable doubt.” Bruce v. State, 191 Ga. App. 580, 582 (3) (382 SE2d 367) (1989). “The trial court further instructed the jury that to warrant a conviction on circumstantial evidence, the proved facts must exclude every reasonable hypothesis save that of guilt. . . . The foregoing jury charges were full and fair and, in view of them, the trial court’s refusal to instruct the jury on [mere presence, association or suspicion] did not constitute reversible error under the facts of this case.” Muhammad v. State, supra at 406 (1).

Judgments affirmed.

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


text:
    A90A0630.
    LINDSEY v. THE STATE.
    (395 SE2d 328)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of two counts of voluntary manslaughter. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The trial court’s admission into evidence of an incriminating statement given by appellant to investigating officers is enumerated as error.

A Jackson-Denno hearing was held. The transcript of the hearing authorized the trial court to find that appellant waived his rights and freely and voluntarily gave the incriminating statement at a time when he showed no signs of intoxication. “ ‘[F] actual and credibility determinations as to voluntariness of a confession are normally made at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. (Cit.)’ [Cits.]” Butler v. State, 194 Ga. App. 208 (1) (390 SE2d 278) (1990). See also Henson v. State, 258 Ga. 600 (1) (372 SE2d 806) (1988).

2. The trial court’s giving of an instruction on flight is enumerated as error. Contrary to appellant’s contentions, however, “[t]here was ample evidence to support the charge on flight. [Appellant] did not remain at the scene of the killing, and this is circumstantial evidence of [his] guilt. The charge given on flight was not error. [Cits.]” Wilson v. State, 257 Ga. 444, 447 (4) (359 SE2d 891) (1987).

3. The trial court did not err in giving instructions on voluntary manslaughter. Although appellant relied on a theory of accidental discharge of his gun, he testified that the victims had struck and cut him. “We believe that at least ‘slight evidence’ existed as to provocation beyond words alone to authorize the jury instruction on voluntary manslaughter. Therefore, the trial court did not err in giving the disputed instruction.” Brooks v. State, 170 Ga. App. 171, 172 (316 SE2d 815) (1984). See also Paynter v. State, 164 Ga. App. 391 (297 SE2d 327) (1982).

4. The trial court’s failure to instruct on involuntary manslaughter is enumerated as error. However, the record shows that, “[f]ollowing the charge, the trial court asked if there were any exceptions. [Appellant] objected to the court’s . . . instruction on [voluntary] manslaughter, but did not except to the [lack of a] charge on [involuntary] manslaughter, nor did he reserve the right to except. . . . There was no error.” Harmon v. State, 259 Ga. 846, 848 (3) (388 SE2d 689) (1990).

Judgments affirmed.

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

Decided June 8, 1990

Rehearing denied June 21, 1990 — Cert. applied for.

John E. Sawhill III, for appellant.

Stephen F. Lanier, District Attorney, Harold Chambers, Assistant District Attorney, for appellee.


text:
    A90A0643.
    CUNNINGHAM v. THE STATE.
    (395 SE2d 330)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the aggravated child molestation of a seven-year-old boy. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Over a relevancy objection, the trial court admitted into evidence a catalogue of sexually explicit videos, books and magazines. This evidentiary ruling is enumerated as error.

The catalogue, which was found in a consent search of appellant’s automobile, included homosexual material such as a book entitled “Young and Willing.” Accordingly, the catalogue was clearly admissible as it “may have a tendency to show [appellant’s] bent of mind toward the sexual activity with which he was charged. [Cits.]” Wilcoxen v. State, 162 Ga. App. 800, 801 (1) (292 SE2d 905) (1982).

2. Over a relevancy objection, the trial court also allowed the State to introduce evidence regarding appellant’s presentation of an adult gag gift as a birthday present to a male friend. This evidentiary ruling is also enumerated as error.

Evidence merely that appellant had selected an adult gag gift as a birthday present for his friend would appear to be innocuous and may not have been relevant to any issue in the instant case. However, appellant’s activities with the gag gift after its presentation at the birthday party could be construed as indicative of his homosexual tendencies. Accordingly, evidence as to those activities was of some relevancy to the issue of appellant’s sexual orientation. Considering the nature of the acts of aggravated child molestation that appellant was charged with having committed against the young male victim, there was no error in admitting this evidence. See generally Wellborn v. State, 258 Ga. 570, 572 (2) (372 SE2d 220) (1988).

3. In his motion for new trial, appellant raised the issue of juror misconduct and prejudice. The trial court’s failure to grant a new trial on these grounds is enumerated as error.

Appellant alleged that, after jury deliberations began, one of the jurors telephoned her attorney and discussed the case with him. The trial court conducted a hearing wherein both the juror and her attorney were called to testify. Based upon the testimony adduced at this hearing, the trial court was authorized to find that the juror and her attorney had both a social and a professional connection and that, although a telephone call had been made, there had been no discussion of any matter that was relevant to the case. Compare Lamons v. State, 255 Ga. 511 (340 SE2d 183) (1986). Accordingly, the trial court did not err in denying appellant’s motion for new trial on the ground of alleged juror misconduct. See Hardy v. State, 242 Ga. 702 (251 SE2d 289) (1978). “[W]here the State makes a countershowing clearly establishing that, although a juror was in telephone communication with others not impaneled, nothing was discussed concerning the investigation of the case, the denial of a new trial [is] not an abuse of discretion. [Cit.] ” Wellmaker v. State, 124 Ga. App. 37, 38 (1) (183 SE2d 62) (1971).

Decided June 8, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

John W. Timmons, Jr., Hudson & Montgomery, James E. Hudson, for appellant.

Harry N. Gordon, District Attorney, Steve Jones, Assistant District Attorney, for appellee.

It was also alleged that this same juror had been prejudiced against appellant based upon her belief that he had made an obscene telephone call to her during the course of the trial. However, the juror testified that it was not until after the trial was over that she had formed her belief that appellant made the obscene call. Since, on this testimony, the trial court was authorized to find that the obscene call could not have prejudiced the juror against appellant before she participated in jury deliberations, the denial of the motion for new trial on the ground of juror prejudice was not error.

Judgment affirmed.

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


text:
    A90A0681, A90A0682.
    WEST v. SMITH et al. (two cases).
    (395 SE2d 302)
   Banke, Presiding Judge.

These companion wrongful-death cases are before us on interlocutory appeal from the denial of motions by the appellant to reconsider the entry of default judgments which had been entered against him in the cases.

The complaints were filed on December 6, 1988; and the appellant was served on December 7, 1988, thus giving him until Friday, January 6, 1989, to file his answers. The answers were mailed to the clerk of the court on January 4 but were not filed by the clerk until Monday, January 9, which was the next business day following their due date. The plaintiff-appellees proceeded with discovery and took no action regarding the late filing until May 23, 1989, when they filed their motions for default judgment. The appellant responded by moving to open the defaults; and the trial court subsequently denied those motions, while entering judgments against the appellant on the issue of liability.

The appellees were suing to recover for the loss of their two minor children, who had died as the result of a fire at an apartment owned by the appellant. They alleged in their complaints that the fire had occurred as a result of a faulty electrical wiring system in the apartment. In support of his motions to open the defaults, the appellant averred that the appellees had been notified approximately two months prior to the fire that the premises were unsafe because, among other things, there were too many people living there and there were too many electrical appliances plugged into extension cords. He averred that the appellees were told that they would have to move and were shown a larger apartment but refused to leave. An engineer who had examined the premises after the fire averred that, in his opinion, the fire had resulted from the improper use of an extension cord and not from faulty wiring in the building. Held:

Under OCGA § 9-11-55 (b), the trial court has the discretion to open a prejudgment default provided four conditions are met: “(1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.” Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984). “ ‘The rule permitting opening of default is remedial in nature and should be liberally applied [cit.], for default judgment is a drastic sanction that should be invoked only in extreme situations. [Cits.] Whenever possible cases should be decided on their merits for default judgment is not favored in law. . . . Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. [Cit.]’ [Cit.]” Whitley v. Bank South, N.A., 185 Ga. App. 896, 898 (366 SE2d 182) (1988). See also Ragan v. Smith, 188 Ga. App. 770 (374 SE2d 559) (1988). The dispute in the present case is over whether a meritorious defense was asserted.

As previously indicated, the appellant’s responsive pleadings were timely served but were filed a day late, and discovery proceeded in the case without delay. The appellee made no issue of the lateness of the answer until it was too late for the default to be opened as a matter of right pursuant to OCGA § 9-11-55 (a), and the appellant has offered evidence under oath which, if believed, would establish a meritorious defense to the complaints. Under these circumstances, it would be a gross injustice to deprive the appellant of the opportunity to defend the actions on the merits; and we accordingly hold that the trial court abused its discretion in refusing to set aside the default judgments and in denying the appellant’s motions to open the defaults.

Decided June 4, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Arnall, Golden & Gregory, Jeffery M. Smith, J. Randolph Evans, Theodore L. Marcus, for appellant.

William Q. Bird, for appellees.

Judgments reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0683.
    A90A0769.
    A90A0803.
    LANGHAM v. THE STATE. BETTERSON v. THE STATE. BETHEA v. THE STATE.
    (395 SE2d 345)
   Carley, Chief Judge.

Appellants were indicted for possession of more than 28 grams of cocaine. In addition, appellant Betterson was indicted for possession of a firearm during the commission of a felony. Appellants were jointly tried before a jury and verdicts of guilty were returned. The trial court entered judgments of conviction and sentences on the jury’s verdicts and appellants filed separate notices of appeal. Since the three appeals raise related enumerations of error, they are hereby consolidated for appellate disposition in this single opinion.

1. Over appellant Betterson’s chain of custody objection, the trial court admitted into evidence the 928 grams of pure cocaine seized from the motel room she had rented. She enumerates this evidentiary ruling as error.

The chain of custody objection was premised upon the' fact that the investigating officers had seized and inventoried seven bricks or slabs of rock cocaine, but that the cocaine that was proffered for admission into evidence at trial was in the form of smaller crumbled pieces. However, there was no material discrepancy in the weight or color and there was no physical indication that the evidence bags had been improperly opened and resealed. See Richards v. State, 189 Ga. App. 146, 147 (1) (375 SE2d 278) (1988). A witness from the State Crime Lab gave an explanation for the crumbled appearance of the rock cocaine in the bags. There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence. Johnson v. State, 143 Ga. App. 169, 170 (1) (237 SE2d 681) (1977).

2. Appellants enumerate the general grounds. The evidence would authorize the following findings: Appellant Betterson drove from Florida to a motel in Dougherty County, Georgia, in a car that was owned by appellant Langham. Appellants Langham and Bethea followed in a rental car leased by appellant Betterson. Appellant Betterson checked into Room 235 under her own name, while appellant Langham checked into Room 240 under a false name. Acting on a tip from a confidential informant, the Dougherty County Sheriff’s Department placed the two rooms under surveillance and obtained a search warrant. When the warrant was executed, all three appellants were in the room rented by appellant Langham under a false name. In appellant Betterson’s purse was found the key to Room 235, as well as an automatic pistol. In Room 235, the cocaine was found in plain sight on the bed. The surveillance team members testified that both appellants Langham and Bethea moved freely between the two rooms at periodic intervals, and walked the motel corridors as if on the lookout.

The undisputed evidence that appellant Betterson had in her purse the key to the locked motel room containing the cocaine is sufficient circumstantial evidence to authorize a rational trior of fact to find that she had actual possession of the contraband, in that she exercised “direct physical control” over it. Evans v. State, 167 Ga. App. 396, 397 (1) (306 SE2d 691) (1983). As to appellants Langham and Bethea, the evidence authorized a finding of their participation in the crime of trafficking with knowledge and intent. “‘[T]he case is controlled by the well established principle that knowledge or scienter may be proved, like any other fact, by circumstantial evidence. (Cits.) Even though knowledge [was denied by appellants Langham and Bethea], the jury would be authorized to return a verdict of guilty based on the circumstances of the case. (Cits.)’ [Cit.] The evidence supports a finding that [appellants Langham and Bethea participated] with ‘guilty knowledge’ that [appellant Betterson possessed the cocaine]. [Cit.]” Garrett v. State, 160 Ga. App. 877, 878 (1) (288 SE2d 592) (1982).

The evidence authorized a finding beyond a reasonable doubt that the three appellants had joint actual possession of the cocaine. Riley v. State, 191 Ga, App. 781, 782 (1) (383 SE2d 172) (1989); Cochran v. State, 190 Ga. App. 884, 886 (1) (380 SE2d 319) (1989). Accordingly, the enumeration of the general grounds is without merit.

3. In its instructions to the jury, the trial court referred to OCGA § 16-13-31 (a) (1) in its entirety. As the indictment had alleged only trafficking by possession, appellants enumerate this jury instruction as error.

Decided June 12, 1990

Rehearing denied June 21, 1990 — Cert, applied for.

Thomas M. West, for appellants (case nos. A90A0683 and A90A0803).

Richard L. Hodge, for appellant (case no. A90A0769).

Britt R. Priddy, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

“A new trial will not usually be granted if the court charges an entire statute or code provision even though a part may be inapplicable to the case at bar. ‘However, it is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.’ [Cit.]” (Emphasis supplied.) Cauthen v. State, 177 Ga. App. 565, 567 (4) (340 SE2d 199) (1986). Any error in the reference to OCGA § 16-13-31 (a) (1) in its entirety was cured when the trial court subsequently instructed the jury that it would be authorized to convict appellants only upon a finding of actual possession, sole or joint, or as a party to the crime of actual possession.

Judgments affirmed.

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