text:
    A89A1674.
    HANSON v. THE STATE.
    (387 SE2d 441)
   Sognier, Judge.

William (Bill) Francis Hanson was convicted of five counts of burglary, and he appeals.

The evidence adduced at trial showed that on June 2, 1987, a home in south Fayette County was burglarized and a VCR and two guns were taken. A week later, on June 9, 1987, four homes in the same area of Fayette County near the town of Brooks were burglarized. In all but one of these burglaries, guns were taken, and in several, change and jewelry, including a gold rope chain with a razor blade charm, were also taken. House painters working near one of the burglarized homes reported the presence in the neighborhood of a small blue vehicle with tinted windows and two white male occupants at the time of the burglaries.

After receiving information that some of the stolen items were being offered for sale in the Senoia area, Investigator Mike Pruitt of the Fayette County Sheriff’s Department contacted Lieutenant Calvin Thompson of the Coweta County Sheriff’s Department, and they met with Chief Ralph Powell of the Senoia Police Department, who had received information that a Senoia resident, Curtis McCrary, had been offering to sell a gun. The officers met with McCrary, who identified “Bill,” later identified as appellant, and D. M., a juvenile, as two white males who had approached him in a small, dark car driven by appellant and told him they had a “couple of guns to get rid of and a VCR.” Powell testified that after receiving information that McCrary might be selling stolen goods he began watching McCrary, and on June 10, 1987, observed a meeting between McCrary and “two white guys in a small car.”

The officers subsequently questioned D. M. and ascertained that he drove a small blue Ford Escort automobile with tinted windows. D. M. confessed, identified the burglarized homes, and implicated appellant. Pruitt and Thompson then went to appellant’s home and awaited his arrival. When appellant arrived home, the officers observed a gold rope chain with a razor blade charm on the floorboard of the passenger side of the vehicle he was driving. A victim later identified the chain and charm as having been stolen from his home. The vehicle also contained a gym bag full of pennies and several knives.

1. Appellant maintains the trial court erred by admitting, over objection, the testimony of D. M. However, appellant’s brief fails to include argument or citation of authority on this issue, and it is therefore deemed abandoned under Rule 15 (c) (2) of this court. Motes v. State, 189 Ga. App. 430 (1) (375 SE2d 893) (1988).

2. Appellant contends his convictions were impermissibly based on the uncorroborated testimony of D. M., an accomplice, and thus the trial court erred by denying his motion for new trial. OCGA § 24-4-8 provides that “[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.” “Under (OCGA § 24-4-8), testimony of an accomplice must be corroborated by either another witness or by corroborating circumstances. The corroboration, however, need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged.” (Citations and punctuation omitted.) Raines v. State, 186 Ga. App. 239, 240 (2) (366 SE2d 841) (1988).

(a) We find that D. M.’s testimony regarding Counts IV, V, and VI was sufficiently corroborated by other evidence adduced at trial, and we affirm appellant’s convictions on those counts. Count IV charged appellant with entering the residence of Ralph Pollard on June 9, 1987 with the intent to commit a theft. D. M.’s testimony implicating appellant in that burglary was corroborated by Pollard’s identification of jewelry taken in that theft and Pruitt and Thompson’s identification of the same jewelry as that found in appellant’s car when he was arrested. “ ‘Unexplained recent possession of stolen goods permits a jury to infer that the accused committed the theft. [Cit.]”’ Faust v. State, 189 Ga. App. 426, 427 (1) (375 SE2d 889) (1988).

Count V charged appellant with the burglary of the home of Roy Samples, from which 'a VCR and two guns were taken on June 2, 1987. D. M.’s testimony implicating appellant in that crime was corroborated by that of the victim describing the articles taken, the testimony of McCrary that both appellant and D. M. approached him to sell two guns and a VCR at about the time of the Samples burglary, and the testimony of Powell, who saw the two white males meeting with McCrary. Count VI charged appellant with entering the home of Stephen Alogna with intent to commit a theft. D. M.’s testimony in that regard was corroborated, if only slightly, by the testimony of the neighborhood house painters who saw a car matching the description of that of D. M. and occupied by two white males in the neighborhood at the time of the burglary.

(b) Counts I and III of the indictment charged appellant with entering the residences of Lyndia McAfee and Hal White on June 9, 1987 with the intent to commit theft. We are unable to find in the record any evidence corroborating D. M.’s implication of appellant in these two crimes. Although McAfee testified that her home was burglarized on June 9, 1987 and a nine milimeter pistol was taken, thus corroborating D. M.’s testimony that they took a nine milimeter pistol during the burglary of the McAfee home, no evidence links appellant with this crime other than the testimony of D. M. Similarly, White corroborated D. M.’s testimony that White’s home was broken into through a high rear window, but did not corroborate D. M.’s testimony that appellant participated in the crime. Although “evidence corroborating the accomplice’s testimony does not have to be sufficient in and of itself to support a verdict of guilty,” Gunter v. State, 243 Ga. 651, 655 (256 SE2d 341) (1979), “ ‘insofar as the participation and identity of the accused is concerned, there must be independent corroborating evidence which tends to connect the accused with the crime.’ [Cit.]” Cofer v. State, 166 Ga. App. 436, 437 (1) (304 SE2d 537) (1983). Accordingly, we are constrained to reverse appellant’s convictions on Counts I and III.

Decided October 19, 1989.

Martin & Martin, Harold E. Martin, for appellant.

W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

3. The record does not support appellant’s contention that D. M. testified appellant did not enter the residences burglarized, and there is thus no merit in appellant’s enumeration that the trial court erred by denying appellant’s motion for a new trial on that ground.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A1079.
    HARBIN v. THE STATE.
    (387 SE2d 367)
   Beasley, Judge.

Defendant was charged with driving with .12 percent by weight of alcohol in his blood, OCGA § 40-6-391 (a) (4), and improper use of habitual violator driving permit, OCGA § 40-5-58 (e) (6) (A). The court directed a verdict on the latter, and the jury convicted defendant of the former.

1. Defense counsel has concluded his arguments as to each enumeration of error by stating the trial court’s action violated defendant’s rights under certain designated sections of the United States and Georgia Constitutions. It behooves counsel appearing before this court to recognize that rote repetition of constitutional provisions is totally ineffective in raising a constitutional issue for this court’s determination. See Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986), where we pointed out that “merely intoning” a citation to a constitutional provision fails to provide a basis for our examination of the right purportedly deemed to have been violated. Accord Leeks v. State, 188 Ga. App. 625, 626 (2) (373 8E2d 777) (1988).

A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the trial court and distinctly ruled upon there. Moore v. State, 148 Ga. App. 14 (251 SE2d 17) (1978). Contentions regarding a constitutional issue which were not made below are thus not passed upon here.

2. The court did not err in refusing to grant a mistrial based on •the prosecutor’s restatement of the witness’ objected-to testimony.

In narrating the sequence of events, the officer was explaining why he charged defendant with improper use of his probationary license, which was for business purposes only. He said: “When you’re out riding around at 12:30 in the morning under the influence —” and defendant objected, stating in effect that it was an unwarranted conclusion because people work at all hours. In response to the court’s request for clarification of the objection, counsel restated the witness’ testimony but in paraphrasing it, omitted reference to “under the influence.” The prosecutor pointed out that counsel had omitted this and referred to it as “drunk,” whereupon the latter objected and moved for a mistrial without stating grounds. It was denied.

A proper motion for mistrial requires the grounds to be stated. Wynne v. State, 139 Ga. App. 355, 358 (4) (228 SE2d 378) (1976). Without such, denial is not error. Whatley v. State, 165 Ga. App. 13 (2) (299 SE2d 87) (1983).

On appeal, the ground asserted is a violation of OCGA § 17-8-75. However, the prosecutor did not make a statement of prejudicial matter not in evidence, which is strongly prohibited by that statute. He merely attempted to correct defense counsel’s restatement of the witness’ testimony, and the approximation was not so distorted that it presented a prejudicial matter to the jury. The jury heard the original statement and could easily discern the difference in the State’s approximation of it.

A mistrial was not mandated by law in these circumstances, so there was no abuse of the court’s discretion which it has in such matters. Henderson v. State, 182 Ga. App. 513, 520 (5) (356 SE2d 241) (1987), reversed on other grounds 257 Ga. 618 (362 SE2d 346) (1987).

The brief broadens the enumeration to complain also of the witness’ testimony itself. However, we do not address it as it is improperly presented. Frink v. State, 177 Ga. App. 604, 608 (5) (340 SE2d 631) (1986).

3. Defendant contends that the court erred in failing to allow his counsel to inspect the breath test computer program prior to trial. He cannot fault the court for not permitting an inspection when he did not ask the court for such. He filed a written request for a copy of the computer program in the probate court, but the case was transferred to the superior court due to lack of jurisdiction. Defendant never pursued the matter and did not object to introduction of the test results, although on appeal he argues that a proper foundation was not laid because he had not been given the opportunity to inspect the program. Such inaction waived the right, if any he had, to a copy or inspection of the computer program. Reid v. State, 129 Ga. App. 660, 663 (2) (200 SE2d 456) (1973).

As to the motion to suppress the test results, it too was filed only in the probate court. The superior court did not err in failing to suppress this evidence because the motion was not before it for resolution. OCGA § 17-5-30 (c) provides: “The motion shall be made only before a court with jurisdiction to try the offense.” Counsel was given an opportunity to obtain a ruling on any motions he wished to present, and he abandoned this one. Compare Sapp v. State, 184 Ga. App. 527, 530 (362 SE2d 406) (1987), where defendant filed a pretrial motion in the proper court, insisted at trial on his right to a preliminary evidentiary hearing, which the court refused, and defendant preserved the error by objecting to the ruling.

4. Defendant complains by brief that his cross-examination of the officer with respect to proper procedure for intoximeter testing was erroneously curtailed, in violation of the Fifth (federal court due process), Sixth (confrontation), and Fourteenth (State Court due process) Amendments to the United States Constitution and Sections 1 (due process) and 14 (confrontation) of Georgia’s Bill of Rights. See Division 1. He does not invoke OCGA § 24-9-64. This limitation, he argues, precluded him from showing that the admissibility requirements of OCGA § 40-6-392 were not met by the State.

Counsel had asked the witness whether all intoximeter machines have a log beside them for recording the test taker’s and machine operator’s names. The State objected but the witness answered anyway, stating that not all of them did. In response to the State’s objection, counsel explained that he was trying to establish what the approved procedure was for all machines. Since the nature of the questioning was not tailored to unearthing whether the test was “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation,” OCGA § 40-6-392 (a) (1), the court did not err in sustaining the State’s objection. It was moot anyway, to a degree, because the witness answered it. Moreover, assuming that defendant was seeking to prove that proper procedure required a log beside the machine, he later established by this witness that the intoximeter used in this case had such a log.

5. The court did not err in not redacting from the accusation, before it went to the jury room, the count as to which the court granted a directed verdict. Defendant by brief argues that this failure denied him due process as guaranteed by the Federal and State Constitutions because leaving the count on the accusation prejudiced and confused the jury. See Division 1.

Without constitutional implication, such is not the case. The jury clearly knew about count two from the course of the trial and, from the court’s instructions, that it was to decide guilt or innocence only as to count one. Its understanding is borne out by its verdict. Removing count two from the face of the accusation would have accomplished little, if anything, insofar as the jury’s comprehension and fair consideration of the issue before it was concerned.

For the same reason, denial of mistrial based on the evidence regarding count two having been put before the jury was also not contrary to law. The State had the right, and indeed the burden, to present evidence in support of that^ charge, and defendant cites no authority except constitutional due process for the proposition that the granting of a directed verdict on one count mandates a mistrial on other counts because of some spillover effect of the evidence. Prejudice in the minds of the jury cannot be assumed in these circumstances, and none is shown.

Moreover, the motion for mistrial was too late, as it was made after the verdict was returned. State v. Jorgenson, 181 Ga. App. 502 (353 SE2d 9) (1987)..

6. Error is claimed by the court’s charging the jury as to certain aspects of OCGA § 40-6-391 (a) (1), the “less safe driver” prohibition, of which defendant was not accused. It is true that the court should not have included these charges, as they were not relevant. However, defendant suffered no harm, because the court made plain that only if the jury believed beyond a reasonable doubt that defendant committed the offense as set out in count one, would it be authorized to find him guilty. Count one in clear terms set out the elements of subsection (a) (4). There is no indication that the jury was confused or misled by the superfluous charges. In this regard, this case resembles Sapp v. State, supra at 528 (3).

The court’s failure to charge the statutory presumptions contained in OCGA § 40-6-392 was not error as the jury had no use for those presumptions, defendant having been accused only of driving with a blood alcohol weight of .12 percent or more. Hudgins v. State, 176 Ga. App. 719, 720 (3) (337 SE2d 378) (1985).

7. Defendant’s motion for mistrial on the ground of lunchtime conversation about a chew of tobacco between the sheriff, who sat at the State’s counsel table but did not testify, and a juror, was made after the verdict was returned. The lunch recess was taken after the State’s evidence was presented and before the defendant announced he would present no evidence. His counsel was aware of the subject conversation at the time it occurred. The motion was out of time. State v. Jorgensen, supra.

Decided October 3, 1989

Rehearing denied October 20, 1989

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

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A2169.
    GEORGIA WATER RESOURCES, INC. v. COMMISSIONER OF LABOR et al.
    (387 SE2d 374)
    Decided October 3, 1989
    Rehearing denied October 20, 1989

      Oliver, Maner & Gray, Wendy W. Williamson, Duffey & Feemster, Dwight Feemster, Charles P. Daly, for appellant.

      Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Jeff L. Milsteen, Assistant Attorney General, for appellees.
   Beasley, Judge.

Appellant seeks to review by direct appeal a superior court order affirming the decision of the Georgia Department of Labor regarding a claim for unemployment compensation. In doing so, it failed to obtain an order from this court granting permission for appeal pursuant to OCGA § 5-6-35 (a) (1). This requirement is jurisdictional and mandates dismissal of the appeal. Cook v. Caldwell, 166 Ga. App. 452 (305 SE2d 187) (1983); Hogan v. Taylor County Bd. of Education, 157 Ga. App. 680 (278 SE2d 106) (1981); Tri-State Bldg. &c. Co. v. Reid, 251 Ga. 38 (302 SE2d 566) (1983); Wheeler v. Strickland, 248 Ga. 85 (281 SE2d 556) (1981). Compare Green v. Tanner, 186 Ga. App. 715, 716 (368 SE2d 162) (1988).

Appeal dismissed.

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


author: Sognier, Judge.

text:
    77021.
    CENTENNIAL INSURANCE COMPANY v. SANDNER, INC. et al.
    (387 SE2d 443)
   Sognier, Judge.

In Sandner, Inc. v. Centennial Ins. Co., 189 Ga. App. 277 (375 SE2d 611) (1988) this court issued an opinion addressing both an appeal and a cross-appeal. The Georgia Supreme Court granted certiorari only as to our holding in the cross-appeal, and in Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989), reversed only that part of the cross-appeal in Division 3 of our opinion, in which we deemed it unnecessary to consider two issues raised in the cross-appeal on the ground that the party involved, BMF, was not an appellant. Accordingly, our judgment as to Division 3 in Sandner, supra, is vacated, the judgment of the Supreme Court is made the judgment of this court, and we now address the remaining issues raised in the cross-appeal. The facts in this case are set forth fully in our original opinion and will not be repeated here.

1. Centennial contends the trial court erred by denying its motion for summary judgment against BMF. We agree and reverse.

(a) BMF alleged claims against Centennial for contribution, contractual indemnification, and breach of the good faith duty owed from principal to agent. Because this court has decided that Centennial is not liable to Sandner for negligence, see Sandner, supra at 280-281 (2), it follows that, as a matter of law, Centennial is not a joint tortfeasor, and therefore BMF has no claim against Centennial for contribution. See generally OCGA § 51-12-32.

(b) BMF’s claim against Centennial for contractual indemnity is based on a provision in the Agency Agreement which provides, in pertinent part, that “[Centennial] will defend and indemnify [BMF] against liability . . . imposed on [BMF] by law for damages sustained and caused by acts or omissions of [Centennial], provided [BMF] has not caused or contributed to such liability by [its] own acts or omissions.” (Emphasis supplied.) Because BMF was dismissed below by Sandner, no liability has been “imposed on [BMF] by law,” and because all claims have been decided against Sandner and in favor of Centennial, BMF has not sustained “damages . . . caused by acts or omissions of [Centennial].” Thus the conditions precedent for recovery under the contractual indemnification provision have not been met, and BMF’s claim against Centennial for contractual indemnity must also fail.

(c) We find no support for BMF’s claim of a specific “duty of good faith” owed to it by Centennial. OCGA § 10-6-1 et seq., covering agency relationships, provides for no such duty, nor have we found any such duty delineated in case law. Moreover, even assuming, arguendo, that such a duty exists, we find no action on Centennial’s part which would constitute a breach. Because Hoberg’s letter to Sandner did not constitute a commitment to provide retroactive insurance coverage, see Sandner, supra at 279, Centennial’s denial of such coverage did not negate Hoberg’s apparent authority in this regard.

Decided October 20, 1989.

Kilpatrick & Cody, Robert E. Shields, Thomas H. Christopher, David P. Phippen, for appellant.

Neely & Player, John W. Winborne III, for appellees.

“Summary judgment is appropriate where the moving party shows he is entitled to judgment as a matter of law and there is no genuine issue as to any material fact. [Cit.]” My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580) (1988). Because no factual disputes exist and we have found all three of BMF’s claims insupportable as a matter of law, we find the trial court erred by denying Centennial’s motion for summary judgment against BMF. See generally West End Investments v. Hills, 188 Ga. App. 274, 277 (372 SE2d 665) (1988).

2. Our decision in Division 1 reversing the trial court’s denial of Centennial’s motion for summary judgment renders it unnecessary that we consider Centennial’s remaining enumeration of error.

Judgment reversed.

Corley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    A89A0961.
    PERRY et al. v. DEPARTMENT OF TRANSPORTATION.
    (387 SE2d 445)
   Carley, Chief Judge.

Appellee-condemnor Georgia Department of Transportation (DOT) condemned a portion of property owned by appellant-condemnees. Appellants filed a notice of appeal to the superior court and a jury trial was held as to the issue of just and adequate compensation. After the jury returned its verdict and judgment had been entered thereon, appellants filed a motion for new trial. It is from the denial of their motion for new trial that appellants bring this appeal.

1. The trial court instructed the jury that it could reduce the amount of consequential damages to the remainder of appellants’ property by the amount of special consequential benefits. Appellants enumerate the giving of this charge as error, asserting that there was no evidence from which the jury could have formed a reasonable estimate of the amount of such consequential benefits.

“[W]hen there is a partial taking, as there was in this case, the condemnee is entitled to any consequential damages to the remainder. OCGA § 22-2-62. However any consequential damages are offset by any consequential benefits to the remainder. OCGA § 22-2-63; [Cit.].” Smith v. DeKalb County, 184 Ga. App. 628, 629 (1) (362 SE2d 435) (1987). “ ‘However, where . . . there [is] no evidence from which the jury could have formed a reasonable estimate of the amount or. value of such benefits, it is error to charge the jury that they could reduce the amount of consequential damages to the remainder by the amount of special consequential benefits. [Cits.]’ [Cits.]” Barrow v. City of Atlanta, 188 Ga. App. 400, 401 (1) (373 SE2d 88) (1988). See also Smith v. DeKalb County, supra at 629 (1).

DOT offered the testimony of two expert witnesses. Neither testified as to a specific amount of consequential benefits to appellants’ remainder. One testified merely to his opinion that any consequential damages to the remainder were completely offset by the consequential benefits. The other merely testified to his opinion that the remainder had suffered $16,000 in consequential damages and was consequentially benefited by its “visibility and exposure from the freeway.” “[T]here must be specific evidence as to the consequential benefits from which the jury could reasonably estimate the amount of improvement before they could deduct it from the consequential damages. . . . [Wjhile two witnesses for the condemnor had testified that the condemnee’s remaining property would be benefited by the construction of the expressway on that portion of the condemnee’s property taken, neither of these witnesses had testified specifically as to the amount of enhancement in value or even the percentage of increase in the value of the property and the testimony was therefore insufficient to authorize a charge on consequential benefits.” (Emphasis supplied.) State Hwy. Dept. v. Grant, 106 Ga. App. 696, 698 (2) (127 SE2d 920) (1962). See also Theo v. Dept. of Transp., 160 Ga. App. 518, 519 (4) (287 SE2d 333) (1981).

DOT urges that the instruction is not erroneous when it is considered in the context of the entire charge. However, consideration of the entire charge is irrelevant. The contested instruction is, in and of itself, a correct abstract principle of law, but it was nevertheless erroneously given in this case because the evidence did not authorize it. The error occasioned by this lack of evidentiary support obviously cannot be rectified by giving consideration to the remaining portions of the charge. The error is in giving an otherwise correct instruction unauthorized by the evidence, not in giving an instruction which, on its face, seemingly states an erroneous principle of law but which, upon consideration of the entire charge, may prove to be correct.

Appellee further urges that any error is harmless. The instruction would be irrelevant and harmless if there was absolutely no evidence of consequential benefits to appellants’ remainder. German v. Dept. of Transp., 162 Ga. App. 785 (293 SE2d 50) (1982). See also Georgia Power Co. v. Bishop, 162 Ga. App. 122 (6) (290 SE2d 328) (1982). However, in this case, there was such evidence. Both of DOT’s experts testified that there were consequential benefits, but neither testified as to a specific amount of such consequential benefits. Under these circumstances the error was harmful. See Theo v. Dept. of Transp., supra. “The charge was harmful in this case because the expert witness [es] . . . deducted] in [their] mental computation the consequential benefits without stating to the jury [their] separate estimates as to the amounts fixed by [them] as consequential damages and benefits. The witness [es] [were] doing what the jury was supposed to do.” (Emphasis supplied.) State Hwy. Dept. v. Grant, supra at 698-699 (2). The instruction was erroneous and not harmless and, therefore, the denial of appellants’ motion for new trial must be reversed.

Decided October 20, 1989.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellants.

Michael J. Bowers, Attorney General, Howell & Whiting, James S. S. Howell, John C. Whiting, for appellee.

2. The remaining enumeration of error concerns a matter which is unlikely to recur at retrial and need not be addressed.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A89A1177.
    FINCHER v. BERGERON et al.
    (387 SE2d 371)
   McMurray, Presiding Judge.

Woodrow J. Bergeron and Cheryl Bergeron (plaintiffs) filed an action for damages against G. W. Fincher (defendant) and alleged that defendant fraudulently induced them to purchase a house which appeared to be in good condition, but was actually in substandard condition. The thrust of plaintiffs’ claim is that defendant failed to inform them of several “concealed defects” in the house which were not noticeable upon a reasonable inspection.

The evidence presented at a jury trial showed that in 1976 defendant purchased a 22-acre parcel of land in Union County, Georgia. There were three buildings on the property which were then about two years old, a dwelling house (comprising approximately 5,000 square feet of living space and a 576 square foot garage), a pool house and a “workshop.” After defendant and his wife and children moved into the house, defendant supervised the installation of a basement in the main dwelling house. This project involved extensive electrical and plumbing modifications and included the installation of a dropped ceiling, carpeted flooring, wall covering and a kitchen with a gas stove, sink and dishwasher.

In August 1985, defendant had the 22-acre parcel appraised and it was valued at $230,000. On September 1,1985, defendant listed the property with a real estate company in Blairsville, Georgia, and the listing contract provided that the property would be marketed at its appraised value.

In January 1986, agents with the real estate company took plaintiffs to defendant’s property for an inspection, explaining to plaintiffs that the property has “a nice house [that] looks pretty.” Defendant was not present during the inspection and plaintiffs examined the dwelling house for approximately two hours, testing a couple of “faucets,” “looking at colors” and “looking where to put furniture.” Plaintiff Cheryl Bergeron observed plumbing fixtures in the pool house, but she did not test their function. Plaintiff Woodrow J. Bergeron noticed that the roofs on the buildings were worn and determined that they would soon need to be replaced. Plaintiffs also noticed that the dwelling house displayed signs of normal wear and tear, but they did not observe any condition which indicated that major defects existed in the utility systems or the structural integrity of the buildings.

Plaintiffs did not again inspect the property, nor did they question defendant or defendant’s agents about the structural integrity of the property. However, plaintiffs did obtain information regarding the appraised value of the property and they offered to purchase it for $189,900. Defendant accepted the offer and, prior to closing, plaintiffs “asked [an agent with the listing real estate company] to walk through [the house] and see if there was any damage done.” Defendant’s agent did not observe any damage to the property. (Plaintiffs testified that they also relied on their lender’s appraiser’s opinion regarding the condition of the property.)

The transaction was closed in June 1986. However, defendant remained in the house with plaintiffs’ consent until August 1986. Shortly thereafter, plaintiffs moved in and discovered that every bathroom in the dwelling house was malfunctioning and that some of the plumbing fixtures in the pool house were not functioning. It was later determined that a water source had not been extended to the swimming pool; that the toilet in the pool house was not connected; that other plumbing fixtures in the basement of the dwelling house were not connected and that water seepage from the malfunctioning plumbing in the dwelling house had resulted in structural damage behind bathroom fixtures, walls and floors. Plaintiffs also discovered faulty electrical wiring in the dwelling house and learned that all of the natural gas lines into the dwelling house had been severed and left open in the crawl space. Finally, plaintiffs determined that the roofs of the structures on the property required replacement; that the heating and air conditioning system of the dwelling house required extensive repair and that the drainage plan which was implemented outside the underground walls of the basement was defective, causing water seepage which deteriorated a wood floor concealed beneath the carpet in the basement.

After the close of the evidence, the trial court directed a verdict for defendant with regard to damages resulting from the faulty heating and air conditioning system and the leaky roof systems. Upon consideration of the case by the jury, a verdict was returned for plaintiffs in the amount of $5,000. No punitive damages were awarded. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends in his first two enumerations that the trial court erred in denying his motion for directed verdict, arguing that the evidence was insufficient to support plaintiffs’ claim of fraud.

(a) “As was pointed out by this court in Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141) [affirmed 239 Ga. 31 (235 SE2d 532)], fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. Traditionally, the rule of caveat emptor had applied and the sales contract merged into the warranty deed and foreclosed any right of remedy by the purchaser after the closing of the contract by transfer of the deed. See Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919). Wilhite, supra, changed the rule of caveat emptor and placed upon the builder-seller a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction. See also Holmes, supra.” Mulkey v. Waggoner, 177 Ga. App. 165, 166 (338 SE2d 755). In the case sub judice, the pivotal issue is whether there was sufficient evidence to authorize a finding of fraud through “passive concealment.” In this regard, defendant argues that there was insufficient evidence to authorize a finding that he was aware of all of the defects in the pool house and the dwelling house. We do not agree.

Defendant resided on the property for more than 10 years before plaintiffs moved in. He supervised a major renovation project on the dwelling house and defendant was responsible for all maintenance on the property. Finally, defendant admitted that he had repaired plumbing in the dwelling house two to three years before he sold the property to plaintiffs. This evidence was sufficient to bring into question defendant’s claim of ignorance as to the defective plumbing in the dwelling house, the leaky basement with its rotting floor and the structural damage in the bathrooms.

(b) Next, defendant argues that he is not responsible to plaintiffs for damages stemming from the cost of repairing the deficiencies on the property because plaintiffs failed to exercise due diligence in inspecting the property before purchase.

“ ‘The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. “When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations [or lack thereof].” (Cit.)’ Kirven v. Lackett, 208 Ga. 178, 182 (65 SE2d 791) (1951); Blanchard v. West, 115 Ga. App. 814 (2) (156 SE2d 164) (1967).” Miller v. Clabby, 178 Ga. App. 821, 823 (344 SE2d 751). However, the question of whether a purchaser exercised ordinary care in inspecting real property before purchasing it is generally an issue for the finder of fact. See Wilhite v. Mays, 239 Ga. 31, 32, supra. Compare Crawford v. Williams, 258 Ga. 806 (375 SE2d 223).

In the case sub judice, none of the defects in the buildings on the property can be characterized, as a matter of law, as typical wear and tear on a “14 to 15”-year-old house. Further, none of the defects were noticeable upon plaintiffs’ visual examination. The basement floor was dry when plaintiffs inspected the dwelling house. Carpet was over the bathroom floors where water had damaged the underlying structure. There was a dropped ceiling in the basement, concealing all signs of defective plumbing and wiring. Plumbing fixtures in the basement were installed and appeared to be functioning. The plumbing fixtures in the pool house were in place and appeared to be functional; and, the severed gas lines were found in a crawl space that did not have access via a planned entryway. (Workmen were required to enter the crawl space through a dropped ceiling tile in a closet of the basement.) Under these circumstances, we cannot say that the trial court erred in finding that sufficient evidence existed to authorize a finding that plaintiffs exercised proper diligence in examining the subject property.

(c) Finally, defendant argues that plaintiffs “failed to prove damages.” This argument is without merit.

Decided October 3, 1989

Rehearing denied October 23, 1989

Michael D. McChesney, for appellant.

Woodside & Boemanns, R. John Boemanns, for appellees.

Plaintiff Woodrow J. Bergeron testified that he expended $4,326 to repair the defective plumbing system in the dwelling house; that he paid $2,700 to repair the leaky basement and the water damaged basement floor and that he spent over $500 to repair the severed gas lines. This evidence alone was sufficient to authorize the jury’s $5,000 verdict. Consequently, the trial court did not err in denying defendant’s motion for directed verdict.

2. In his final enumeration, defendant contends “[t]he trial court erred in failing to instruct the jury on the effect of [the] partial directed verdict in [defendant’s] favor.”

This matter was not brought to the trial court’s attention at trial. Consequently, there remains nothing for appellate review. Smith v. Pierce, 179 Ga. App. 724 (2) (347 SE2d 692); Department of Transp. v. Poole, 179 Ga. App. 638, 640 (3) (347 SE2d 625).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

       It is undisputed that plaintiffs did not meet or talk with defendant until after the transaction was closed.


text:
    A89A1582.
    THOMAS v. GEORGIA AMERICAN INSURANCE COMPANY.
    (387 SE2d 401)
   Sognier, Judge.

Tom W. Thomas, Jr. appeals from the trial court’s grant of Georgia American Insurance Company’s motion for summary judgment and the denial of Thomas’ summary judgment motion in this declaratory judgment action.

The material facts are not disputed. Appellant was employed by B & B Trucking as a truck driver. B & B was covered by an insurance policy issued by Occidental Fire & Casualty Company of North Carolina, which provided motor vehicle liability and no-fault personal injury protection (PIP) insurance coverage in compliance with OCGA § 33-34-4 (a) (2) (the “Occidental policy”). During the relevant time period appellant also had a personal automobile no-fault insurance policy issued by appellee. On June 22, 1987 appellant, while driving a B & B truck in the course of his employment, was injured in a one vehicle accident. He made a claim for PIP benefits under the Occidental policy, which Occidental paid after reducing the available benefits pursuant to OCGA § 33-34-8 (b), (c) by the amount of medical expenses and lost wages paid by workers’ compensation. Appellant then made a demand on appellee for payment of the $975.75 in medical expenses and $1,400 in lost wages not paid by Occidental. Appellee filed this action to determine its liability to appellant, and the trial court ruled that appellant was not entitled to “stack” the basic PIP benefits available under his policy issued by appellee onto the net amount paid by Occidental, and accordingly appellee was not obligated to pay appellant’s claim.

We agree with appellant that the trial court’s decision is inconsistent with cases which have recognized that the no-fault benefit reduction compelled by OCGA § 33-34-8 does not apply to the employee’s own insurance. In Freeman v. Ryder Truck Lines, 244 Ga. 80 (259 SE2d 36) (1979), the Supreme Court considered the extent to which an employee injured while occupying a vehicle owned and insured by the employer may recover no-fault benefits, and held that the employee’s personal no-fault insurance was applicable even though recovery under the employer’s no-fault policy was precluded by the payment of workers’ compensation. After OCGA § 33-34-8 was amended in 1979 to limit the extent to which the payment of employer provided no-fault benefits would be reduced by workers’ compensation benefits, Ga. Laws 1979, p. 594, § 1, the Supreme Court reaffirmed the holding that the employee also was entitled to recover under his own no-fault policy up to the basic PIP minimum. Doran v. Travelers Indem. Co., 254 Ga. 63, 66 (326 SE2d 221) (1985). This principle also was recognized by this Court in Atlanta Cas. Co. v. Sharpton, 158 Ga. App. 758 (282 SE2d 214) (1981), and is consistent with OCGA § 33-34-8 (a), which provides that benefits payable under the Georgia Motor Vehicle Accident Reparations Act “shall not be reduced or eliminated by any workers’ compensation benefits” except to the extent that no-fault insurance of the employer is reduced as required in paragraphs (b) and (c).

The trial court relied upon the recent Supreme Court decision in Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730) (1988), in which workers’ compensation benefits were not involved. In Cannon the Supreme Court addressed the question of whether the trial court correctly refused to deduct from the verdict obtained by the injured claimant both the PIP benefits paid by her own insurer and the PIP benefits available under the policy of her father, with whom she lived. The Cannon court held that the question of whether basic PIP coverage could be stacked under OCGA § 33-34-4 (c) must be determined by reference to the definition of “insured” in OCGA § 33-34-2 (5). Although under that provision the “insured” includes a resident relative of the named insured, the Supreme Court focused on the part of OCGA § 33-34-2 (5) denominating as an insured “any resident relative . . . while occupying ... a motor vehicle when such motor vehicle is not similarly insured as required by [OCGA § 33-34-4 (a) (2)].” The court then concluded that the claimant was not required to deduct from her verdict the PIP benefits available under her father’s policy, finding that she was not an “insured” under her father’s policy because she was driving her own car, not her father’s, and her car was “similarly insured” by her own policy. Id. at 333-334 (3).

Decided October 10, 1989

Rehearing denied October 23, 1989

Mullís, Marshall, Lindley & Powell, J. A. Powell, Jr., for appellant.

Jones, Cork & Miller, Wallace Miller III, for appellee.

It is thus apparent that Cannon did not involve OCGA § 33-34-8, as is the situation in the case at bar, and in view of Freeman and Doran, supra, Supreme Court decisions directly applicable to the issue here, we cannot agree with the trial court’s extension of the holding in Cannon to the case sub judice. The facts in Freeman and Sharpton (cert. denied, 158 Ga. App. 873) were identical to those in the case at bar, and accordingly we find this line of cases controlling. Moreover, OCGA § 33-34-8 (a) clearly establishes the public policy that a claimant’s no-fault benefits are not to be reduced except in the limited circumstances set forth in paragraphs (b) and (c). Thus, we hold that appellant, an employee who was injured when driving a motor vehicle owned and insured by his employer and whose benefits otherwise payable under the employer’s no-fault insurance were reduced or eliminated by the application of OCGA § 33-34-8 (b), (c), may stack the no-fault coverage under his personal policy up to the basic PIP minimum of $5,000. Therefore, we find the trial court erred by granting appellee’s motion for summary judgment and denying appellant’s summary judgment motion.

Judgment reversed.

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


text:
    A89A1301.
    EADS v. THE STATE.
    (387 SE2d 591)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of one count of exploitation of a disabled adult in violation of OCGA § 30-5-8 (a), two counts of public assistance fraud in violation of OCGA § 49-4-15, and fourteen counts of felony theft by taking in violation of OCGA § 16-8-2. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Of the felony theft by taking counts, twelve alleged that appellant, “being a fiduciary in breach of his fiduciary obligation,” had unlawfully appropriated the proceeds of certain checks. Appellant enumerates the general grounds as to these twelve counts, urging the absence of any evidence that he had acted “in breach of his fiduciary obligation” to the checks’ payee.

The evidence shows that, in 1982 and again in 1986, the elderly victim executed a power of attorney to appellant, authorizing him to “sign, endorse, receive, deposit or issue checks” on her behalf. Between May 1, 1986, and April 3, 1987, appellant placed the victim’s endorsement on the back of her checks, cashed them, and appropriated the funds. In endorsing the victim’s checks, appellant was not committing forgery because that act was within the scope of his authority. However, in appropriating the funds, appellant was clearly guilty of theft of the victim’s property “in breach of his fiduciary obligation” to her. A rational trior of fact could reasonably have found,, from the evidence adduced at trial, proof of appellant’s guilt of theft by taking in breach of his fiduciary obligation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court gave a general instruction on the definition of a “fiduciary relationship.” Appellant enumerates the giving of the instruction as error.

The instruction given by the trial court does appear to misstate the law of this State, at least insofar as it indicates that the mere reposing of one’s faith, confidence and trust in another can give rise to a “fiduciary relationship.” See generally Dover v. Burns, 186 Ga. 19, 26 (1) (196 SE 785) (1938); Lewis v. Alderman, 117 Ga. App. 855 (1) (162 SE2d 440) (1968). If it would be error to give the charge in an equitable proceeding, it would certainly be error to give it in this criminal action. However, any error in the giving of the charge was clearly harmless. Under the evidence of record, appellant was, as a matter of law, a fiduciary as to the elderly victim. As noted, she had executed a power of attorney to appellant. Accordingly, an erroneous general definition of a “fiduciary relationship” could not have harmed appellant. The only disputed issue was whether, after appellant had endorsed the victim’s checks pursuant to his power of attorney, he then unlawfully appropriated the proceeds. If he did, he was guilty of felony theft by taking. If he did not, he was guilty of no crime whatsoever. Under the evidence, the charge could not have resulted in an unsupported conviction for felony theft by taking and a reversal is not mandated.

Judgments affirmed.

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

Decided October 23, 1989.

Kenneth L. Chalker, Jr., for appellant.

Thomas J. Charron, District Attorney, James F. Morris, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A89A1427.
    HENDRICKS et al. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.
    (387 SE2d 593)
   Carley, Chief Judge.

Appellant-plaintiffs Mr. and Mrs. Bobby Hendricks filed suit against appellee-defendants Southern Bell Telephone & Telegraph Company (Southern Bell) and Mr. Raymond Harper, a Southern Bell employee. The complaint alleged the commission of a battery against Mr. Hendricks, in that Mr. Harper had “wrongfully, wilfully, and intentionally tricked and induced [Mr. Hendricks] to place a telephone receiver to his right ear which [receiver] had, at the time, a high frequency/high intensity tone being transmitted over the line at the direction and under the control of [Southern Bell], acting by and through its agent and employee [Mr. Harper].” For this alleged battery, appellant Mr. Hendricks sought compensatory and punitive damages and Mrs. Hendricks sought compensatory damages for loss of consortium.

The case was tried before a jury and a verdict in favor of appellees was returned. Appellants appeal from the judgment that was entered by the trial court on the jury’s verdict.

1. In its charge to the jury, the trial court gave several of appellees’ requested instructions which were to the effect that their liability for the alleged battery would be dependent upon an actual intent on the part of Mr. Harper to hurt or to cause physical harm to Mr. Hendricks. The trial court consequently refused to give appellants’ requested instruction which was to the effect that a battery could have been committed by Mr. Harper either by his intentionally making physical contact of an insulting or provoking nature with the person of Mr. Hendricks or by his intentionally causing physical harm to Mr. Hendricks. The giving of appellees’ requested instructions and the refusal to give appellants’ requested instruction are enumerated as error.

Clearly, the act of intentionally causing actual physical harm to another is civilly actionable as a battery. See generally Security Life Ins. Co. v. Newsome, 122 Ga. App. 137 (1) (176 SE2d 463) (1970). However, the intent to cause actual physical harm to another is not absolutely essential to the viability of a civil action for battery. “In the interest of one’s right of inviolability of one’s person, any unlawful touching is a physical injury to the person and is actionable.” (Emphasis supplied.) Mims v. Boland, 110 Ga. App. 477-478 (1) (a) (4) (138 SE2d 902) (1964). See also Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986); F. W. Woolworth Co. v. Loggins, 115 Ga. App. 557 (1) (155 SE2d 462) (1967). Greenfield v. Colonial Stores, 110 Ga. App. 572, 574 (1) (139 SE2d 403) (1964); Interstate Life &c. Co. v. Brewer, 56 Ga. App. 599, 605 (1) (193 SE 458) (1937). “Any unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. [Cits.] The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.” (Emphasis supplied.) Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (2) (144 SE 680) (1928). “Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery. If the circumstances of the occasion be not such as the law would permit an inference that the battery proceeded from anger, the jury may nevertheless be authorized to conclude, considering its nature and the circumstances, that it resulted from a lack of proper respect for the person on whom the contact was made. Contact proceeding from rudeness is as offensive and harmful as that which proceeds from anger or lust, and in law constitutes an assault and battery.” (Emphasis supplied.) Brown v. State, 57 Ga. App. 864, 867-868 (2) (197 SE 82) (1938).

An actionable battery may be accomplished by an unauthorized caress as well as by an unauthorized blow. See generally Yarbrough v. State, 17 Ga. App. 828 (88 SE 710) (1916). It is the intent to make either harmful or insulting or provoking contact with another which renders one civilly liable for a battery. Interstate Life &c. Co. v. Brewer, supra at 606-607 (1). Accordingly, appellees’ liability was not dependent upon Mr. Harper’s intent to cause actual physical harm to Mr. Hendricks. Appellees’ liability could equally be premised upon Mr. Harper’s mere intent to make contact of an insulting or provoking nature with Mr. Hendricks. The question of whether Mr. Harper acted with any other intent — whether wantonly, wilfully or maliciously — goes to the issue of the damages that are recoverable by appellants and not to the issue of appellees’ liability for the act itself. “A physical injury done to another shall give a right of action to the injured party, whatever may be the intention of the person causing the injury, unless he is justified under some rule of law. However, intention shall be considered in the assessment of damages.” OCGA § 51-1-13. Thus, if in addition to intending to make contact of either a harmful or an insulting or provoking nature with Mr. Hendricks, Mr. Harper also acted wantonly, wilfully or maliciously, appellees may be liable for punitive as well as compensatory damages. See OCGA § 51-12-5. It follows that the trial court erred in giving appellees’ requested charges and erred in failing to give appellants’ requested charge.

Decided October 23, 1989.

Loftiss, Van Heiningen & Ward, Thomas J. Loftiss II, for appellants.

2. The trial court also erred in charging the jury on the defense of assumption of the risk. Assumption of the risk is a defense to a negligence claim, not a defense to a claim that is predicated upon an intentional tort such as battery. See generally Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (3) (378 SE2d 857) (1989).

3. The trial court did not abuse its discretion in allowing appellees to attempt to recreate in the presence of the jury the high frequency/high intensity tone which allegedly injured Mr. Hendricks. See generally Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 397 (5) (339 SE2d 619) (1985).

4. Appellants attempted to proffer evidence that Mr. Harper had a prior history of substandard performance as an employee of Southern Bell. The trial court excluded this evidence as irrelevant and this evidentiary ruling is enumerated as error.

Any evidence concerning Mr. Harper’s prior negligent performance of his employment duties would appear to be utterly irrelevant to the issue of whether he committed an intentional tort such as was alleged in this action. “Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere. [Cit.] Thus, as here, where the evidence did not appear to be material or illustrative of any issue in the case, its exclusion was not error. [Cit.]” MacNerland v. Johnson, 137 Ga. App. 541, 542 (1) (224 SE2d 431) (1976). Moreover, even assuming that the evidence of Mr. Harper’s negligence was somehow marginally relevant, its admission would have confused the jury as to the issue of appellees’ liability for the alleged intentional tort. “Evidence which is relevant may be excluded because its probative worth or value is outweighed by its tendency to confuse the issues, or the jury. [Cits.]” MacNerland v. Johnson, supra at 544 (2). Accordingly, we find no error in the trial court’s exclusion of the proffered evidence.

5. For the reasons discussed in Divisions 1 and 2, the judgment is reversed and a new trial must be held.

Judgment reversed.

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

William U. Norwood III, for appellees.


text:
    A89A0834.
    SWARTZEL et al. v. GARNER.
    (387 SE2d 359)
   Carley, Chief Judge.

On October 29, 1982, appellant-plaintiffs and appellee-defendant were involved in a vehicular collision. On August 1, 1984, appellants filed suit against appellee. The case was called for trial on May 4, 1987. After a request for continuance was denied, appellants’ counsel apparently stated his intention to dismiss the case without prejudice. However, no written notice of dismissal was ever filed by appellants. On November 19, 1987, the trial court ordered that the case be dismissed without prejudice nunc pro tunc, because appellants’ attorney had orally dismissed the case in open court at the call of the trial calendar.

Within six months of this nunc pro tunc order, appellants refiled their action. However, appellee moved to dismiss, urging that the nunc pro tunc order of dismissal related back to May 4,1987 and that appellants had not, therefore, refiled their action within the six-month period established by OCGA § 9-2-61. Finding that its nunc pro tunc order of November 19, 1987 was, a “housekeeping procedure,” the trial court concluded that appellants’ renewal action was not timely filed and it granted appellee’s motion to dismiss. It is from this order of dismissal that appellants bring this appeal.

OCGA § 9-11-41 (a) provides, in relevant part, that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” (Emphasis supplied.) Thus, written notice filed by the plaintiff is required to effectuate the voluntary dismissal of an action. See Paul v. Bennett, 241 Ga. 158 (244 SE2d 9) (1978); Wilson v. Barton & Ludwig, 163 Ga. App. 721, 727 (3) (296 SE2d 74) (1982). Accordingly, no voluntary dismissal ever occurred in the instant case.

If, as the result of appellants’ failure to comply with OCGA § 9-11-41 (a), appellee wanted to secure an involuntary dismissal, he was required to take affirmative action to obtain such an order. See generally Kalin v. Pfarner, 124 Ga. App. 816, 817 (1) (186 SE2d 365) (1971). He did not do so. Pursuant to OCGA § 9-11-41 (b), the trial court, acting on its own motion, was also certainly authorized to enter an order of involuntary dismissal. See Cramer, Inc. v. Southeastern Office &c. Co., 171 Ga. App. 514, 515 (1) (320 SE2d 223) (1984). However, the order entered by the trial court on November 19, 1987 pur-

Decided September 27, 1989

Rehearing denied October 24, 1989

Rubin Law Offices, Robert P. Hoyt, for appellants.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, for appellee.

ported to serve as a nunc pro tunc voluntary dismissal of appellants’ action. A dismissal pursuant to OCGA § 9-11-41 (a) is accomplished by the plaintiff, not by order of the trial court. Since “nunc pro tunc orders cannot be utilized to correct non-action on the part of the trial court[,]” Savannah Iron &c. Corp. v. Mitchell, 168 Ga. App. 252, 253 (1) (308 SE2d 569) (1983), it necessarily follows that a nunc pro tunc order cannot be used to effectuate retroactive action which the trial court was never originally authorized to accomplish. If the trial court’s order of November 19, 1987, has any effect whatsoever, it is as an involuntary dismissal as of that date, and not as a nunc pro tunc voluntary dismissal by appellants as of May 4, 1987.

Therefore, it was error to grant appellee’s motion to dismiss appellants’ renewal action. Appellants refiled within six months of the valid involuntary dismissal of their action by order of the trial court on November 19, 1987. OCGA § 9-2-61 “ ‘applies to involuntary as well as voluntary dismissals, where the merits are not adjudicated. (Cits.)’ [Cit.]” Fowler v. Aetna Cas. &c. Co., 159 Ga. App. 190, 192 (2) (283 SE2d 69) (1981).

Judgment reversed.

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


author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A0911.
    GETZ EXTERMINATORS OF GEORGIA, INC. v. TOWE et al.
    (387 SE2d 338)
   Birdsong, Judge.

In late 1984, William and Charlon Towe entered a contract to purchase a house, and thereafter arranged to finance the purchase through Fairfield Financial Corporation. On the day of the scheduled closing, Fairfield insisted on a “termite letter,” and for that purpose the appellant inspected the house and prepared an inspection report. This inspection report warned of visible evidence of previous infestation and damages from wood-decaying fungus, but not from termites. The report also indicated that the appellant had treated the house in 1969 “for prevention or control of subterranean termites,” and that the treatment was warranted until May 1985.

Initially, because of this termite letter, Fairfield’s attorney felt insecure about allowing the loan to close, but a telephone contact with the appellant allayed any concern. This attorney contacted Mrs. Towe and only related to her the report’s information about the damage and the dormant wood fungus. The Towes never saw the termite letter prior to the closing. About 11 days after the closing, the Towes discovered a swarm of termites in their den. Subsequent inspection by other pest control companies and contractors revealed extensive termite damage throughout the house. (At trial, although there was evidence that repairs could be made for $18,500, there also was evidence that the house was so damaged that it had no value.)

Subsequently, the Towes and Decatur Federal Savings & Loan Association, to whom Fairfield had assigned its interest, sued the appellant for negligent inspection. The jury awarded the Towes and Decatur Federal $98,000 for actual damages, and awarded the Towes $12,012.92 as consequential damages and $150,000 as punitive damages. This appeal followed. Held:

1. If any improper insurance evidence was injected in this case, as appellant complains, it was appellant’s own fault.

Appellant defendant complains that plaintiff’s attorney queried a prospective juror, who was an insurance agent: “Because of your business relationship with one of the defendant insurance companies, do you feel that it would impair you to render a verdict just solely on the evidence. . .?” (Emphasis supplied.) Thus it was improperly and inaccurately stated only that an insurance company was a defendant in the case. The defendant’s attorney objected to “the statement that Interstate [the named insurance company], was a defendant in this case, which is simply incorrect and misleading.”

The trial court immediately instructed the jurors that they “should lay aside any impression on your minds from that statement. [The named insurance corporations] are not parties in this case. They are not parties, either as plaintiffs or defendants. That should not have been mentioned to you, because it is inaccurate. They are not parties in the case, and any impression that was created in your mind by the mention of them . . . should be removed.” To this curative instruction, defendant Getz’ counsel did not object, until after the panel was ruled qualified as to relationships.

Appellant’s counsel then stated to the court: “ . . . I think at this point in time the jury knows that an insurance company is involved, one of the defendants in the case. I’m not sure how we can correct this. The only thing I know to do is move for a new panel. The first thing they have heard is two statements that the defendant has liability insurance, and then a long discussion, and the first ruling from the court is the direction to disregard the . . . [statements] that the defendant was a liability insurance company.” (Emphasis supplied.)

This quoted objection by defense counsel misinterprets what occurred. Prior to any jury selection proceedings, the parties and trial court discussed at length the plaintiff’s bad faith claim versus the inadmissibility of insurance evidence and the trial court’s desire to avoid a mistrial. Then, the defendant brought up the matter of qualifying jurors as to Interstate Fire & Casualty Company (its liability insurer) and agreed to such qualification, while successfully protesting any qualification as to Interstate’s parent or sister company. The jurors were then brought in and the trial court inquired as to any relationships with Interstate. One juror avowed that he was an independent insurance agent who could and did sell insurance for that company.

The plaintiff mortgagee’s counsel moved to disqualify this juror. It was the defendant-appellant’s counsel who then said defendant did not think this juror should be disqualified. The trial court asked for “reasons,” and in the ensuing discussion the plaintiff mortgagee’s attorney asked the juror if, and how long, he had sold policies for Interstate and what kind of policy he sold for Interstate. The juror responded that he sold “property insurance and general liability insurance.” Mortgagee’s counsel asked, “What kind of property coverage?” and the juror replied: “Commercial buildings. That is all, to my knowledge, right now.”

The foregoing colloquy is the only mention of “liability” insurance we find in this transcript up to the time of the appellant’s objection. Only by inviting speculation does it suggest that defendant Getz had liability insurance. More significantly, however, it was Getz who elicited these remarks by urging and agreeing that jurors be qualified as to relationships with its insurer, Interstate. And most significantly, appellant Getz did not at the time object to this mention of the word “liability.”

It is clear upon the face of the record that appellant’s later complaint that “[t]he first thing [the jurors] have heard is . . . that the defendant has liability insurance,” is simply not correct. Moreover, if that statement were accurate, it was the appellant who, in all, brought the matter out before the jury.

Appellant’s complaint of the second of “two statements” put before the jury by plaintiff (by query to the juror about his relationship “with one of the defendant insurance companies”) is more accurately based, but does not provide a ground for reversal of the verdict. Appellant complained of this statement at the time it was made, and the trial court quickly instructed the jury to disregard, as “inaccurate,” any mention that an insurance company was a defendant. Therefore, the improper statement was clearly and precisely .cured.

Finally, but not least, these curative remarks did more than cure any prejudicial idea that appellant had liability insurance: they just as easily implied to the jury the appellant had no insurance, since no insurance company was a defendant in the case. In any event, the mere reference to “defendant insurance companies,” could be poisonous only in combination with the earlier vague mention of “liability” insurance, which appellant induced by claiming that the insurance agent juror should not be disqualified and thus laying ground for all of the subsequent questioning of this juror, of which it now complains.

Finally, if there was any real prejudice left hanging that was not appellant’s fault, appellant did not move vigorously enough to remove it, for it asked only for a new panel, and did not then ask for a mistrial so as to place the trial court on firm notice that it deemed itself to be mortally offended and deemed its case to be irretrievably poisoned by the injection of this evidence. Appellant thus deprived the trial court of any last chance to fix the perceived damage of which appellant so fiercely now complains.

If there had been an improper injection of insurance evidence in a case, it would not automatically require a reversal. Reliance Ins. Co. v. Bridges, 168 Ga. App. 874 (3) (311 SE2d 193). “It is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial [reversal] should be granted.” (Emphasis supplied.) Wallace v. Cates, 120 Ga. App. 228 (170 SE2d 40).

Nothing to the contrary was held in Collins v. Davis, 186 Ga. App. 192 (366 SE2d 769). There, we emphasized the strength of the rule against improper injection of insurance evidence, but we did not hold that such evidence requires reversal of the verdict as a matter of law. We reversed the verdict in Collins because under the “highly disputed and uncertain nature of the evidence relating to negligence” (id. p. 195), it could not be said the verdict in favor of the defendant Davis was uninfluenced by evidence that the plaintiff had insurance.

The evidence in this case clearly preponderates to only one reasonable conclusion: that the appellant was negligent in its inspection in failing to discover a termite infestation so severe that only twelve days after the appellees moved in their new home, they discovered a swarm of thousands of termites in their den, and thereupon discovered the infestation to be so extensive and of such duration that it had by that time caused such severe structural damage that some evidence showed the house to be “worthless.”

The appellant exterminating company’s only significant defense to having issued a clean inspection letter appears to revolve around the idea that the official state-regulated “termite letter” form expressly provided that the inspection did not cover “any condition or damage which was not visible at time of inspection but which may be revealed in the course of repair or replacement work.” But the “condition” here was not revealed only “in the course of repair or replacement work.” It was rather shockingly revealed to the homeowners only days after inspection, by swarming thousands of termites exuding into their den.

A termite inspection is relied upon because the inspector is expected to inspect and discern a little more than may be “visible” to the nonprofessional eye. There was evidence that termites can “swarm suddenly” in the spring, and can “build an inch [of detritus] overnight,” but these suggestions do not explain the infestation that manifested itself in force only twelve days after inspection and thereby revealed such extensive damage. There was also evidence that if a particular infestation is in a “hidden spot,” it may not be discovered unless you “just happen to probe that particular wall.” But the damage and infestation in this house plainly was not limited to a “particular wall.” The extensive damage was found “throughout the house.”

There was much opinion evidence that the live infestation had been present at least six months or a couple of years, or two or three years, or three or four years, or five to seven years. One expert testified the damage was so obvious that anyone with a reasonable degree of ability as an inspector could have determined the damage, and that anyone trained in the exterminating business should have found visible evidence of damage in the basement. This same witness described at length the other areas of the house of visible previous infestation and damage, that is, visible to any trained person, and testified that in his 33 years of experience, this house would be “close to first,” as bad as any house he had ever seen. So extensive was the damage that one estimate of repair exceeded $180,000, which was nearly $70,000 more than the plaintiffs had paid for the house.

The appellant’s apparent defense, that the termite infestation was not “visible” to its inspector, pales beside such evidence. We on the appellate level are not judges of credibility, but we often are called to determine whether a body of evidence is so overwhelming and so substantiated, or is undisputed or so weakly disputed, that it speaks to but one reasonable result.

The preponderaron of evidence in this case reasonably speaks only to the negligence of the appellant in inspecting the house, and not seeing what should have been “visible” to any professional — and indeed was quickly “visible” to several others — only a few days later after the insects intruded in force into the interior of the house. Therefore, the probability or even likelihood that any extraneous insurance evidence was so prejudicial that it could not be eradicated and affected the jury’s verdict, is very small indeed in this case.

2. Appellant Getz contends evidence of the renewal of warranty after the inspection report was issued, was improper because it could not relate to plaintiff’s sole claim, i.e., the claim of negligence. This complaint is without merit. In the face of the shocking evidence of severe infestation and damage, which revealed itself so soon after the inspection, this warranty renewal could show a continued course of inattentive conduct that might bear upon the issue of appellant’s earlier negligence.

In any event, the evidence was at worst irrelevant to the negligence issue, and surely was not such as to require reversal of this verdict, in the face of the overpowering evidence in plaintiffs favor.

3. The award of punitive damages was supported by evidence which, as the jury evidently found, suggested “ ‘that entire want of care which would raise the presumption of a conscious indifference to consequences’ ” (Deavers v. Standridge, 144 Ga. App. 673, 676 (242 SE2d 331); OCGA § 51-12-5), or that the inspection was performed with such gross negligence as to indicate a wanton disregard to the rights of others. Faircloth v. Greiner, 174 Ga. App. 845, 847 (331 SE2d 905).

Certainly the evidence, with all reasonable deductions therefrom, did not demand a finding negating punitive damages; therefore, appellant was correctly denied a directed verdict and judgment n.o.v. on this issue. See generally OCGA § 9-11-50.

4. Appellant Getz contends the trial court erred in denying its motion for new trial, based on the trial court’s failure to cure appellees’ attorney’s statements in closing arguments that the object of punitive damages was to compensate appellees for pain and suffering. OCGA § 51-12-5 allows punitive damages for “wounded feelings,” but appellant contends these are not the same as “pain and suffering.” The trial court refused a curative instruction at that point, but advised the jury the statements of counsel were not to be taken as law, and that he would give the proper law to the jury. Appellant does not complain that the proper law was never given to the jury but evidently expected the trial court to charge the jury as to the law during closing argument. This is not the proper trial procedure. The jury statements were interrupted, objection made, and the jury was told by the court in effect to disregard such “statements of law.” This was the proper response to appellant’s objection at the time it was made.

In any case, appellant has not borne its burden to show error which affected the verdict in a harmful fashion. Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520). Since there is no prevailing indication that the punitive damages were awarded for pain and suffering and inconvenience rather than for deterrence or wounded feelings in this case, and the evidence well supports the punitive damage award on any basis, it cannot be said that the alleged error affected the verdict at all.

5. What we have said of the evidence heretofore shows there was patently no failure of proof of proximate cause, and therefore Getz was not entitled to a directed verdict or judgment n.o.v. under § 9-11-50. The termite letter was required as an integral element of the loan approval. Both Decatur Federal Savings & Loan’s assignor and the Towes relied upon the letter in lending and borrowing the money; upon it Decatur Federal’s assignor approved purchase of the house and the Towes purchased it, to their detriment.

6. Appellant complains the cause of action of Decatur Federal, which it acquired from Fairfield Financial, was in fact not assignable because it involved a personal tort. It is clear, however, that the tort sued upon was damage to property (Hubbard v. Ruff, 97 Ga. App. 251 (103 SE2d 134)), which was assignable under OCGA § 44-12-24.

The negligence of Getz in issuing this termite letter occurred before the assignment to Decatur Federal; moreover, the existence of the letter clearly induced or allowed Decatur Federal to accept the assignment to its detriment. It therefore cannot be maintained that Decatur Federal was not itself injured by Getz’ negligence.

7. Getz contends the trial court erred in consolidating the cases of Decatur Federal and the Towes without Getz’ approval. Clearly this enumeration of error is without merit. The consolidation was appropriate and necessary to avoid inconsistent verdicts, pursuant to § 9-11-61. Appellant Getz fails to support its contention that it can avert such proper consolidation merely by objecting to it; and, in any case, Getz’ objection to it was made too late, long after the pretrial order was entered.

8. Finally, appellant contends the trial court abused its discretion “in entering three orders requiring Getz to pay attorney fees under OCGA § 9-15-14.” However, Getz has shown no authoritative basis for its claim of “abuse of discretion”; therefore, its enumeration cannot be maintained. See City of Waycross v. Beaty, 157 Ga. App. 765 (278 SE2d 697). No factual or legal error is shown in the issuance of three orders providing attorney fees. Therefore, we find no basis to overturn them.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Been, P. J., Sognier and Benham, JJ., dissent. Carley, C. J., disqualified.

Deen, Presiding Judge,

dissenting.

In qualifying the jury, the trial court asked the jury panel whether anyone was associated with the Interstate National Corporation or Interstate Fife & Casualty Company. When one panel member indicated that he sold insurance as an independent agent for one of the companies, the appellees’ counsel attempted to ask if his “relationship with one of the defendant companies in this case” would bias him, but the appellant’s counsel objected. The trial court told the appellees’ counsel to repeat the question so that he could consider the objection, and counsel more specifically asked the panel member whether his “business relationship with one of the defendant insurance companies” would bias him. In response to the appellant’s renewed objection that neither insurance company was a party to this action, the appellees’ counsel denied making that statement, and on appeal professes that his interjection of insurance was inadvertent. The trial court instructed the jurors that they should disregard the statement, that the insurance companies were not parties in this case, and that any impression created in the jurors’ minds by the statement should be dispelled. The appellant moved for a new panel of jurors, but the trial court denied that motion.

Decided September 6, 1989

Rehearing denied October 24, 1989

Lamar, Archer & Cofrin, Brian J. O’Shea, Robert C. Lamar, for appellant.

“It is proper to qualify the jury relative to the possible interest which the members may have in an insurance carrier having a financial interest in the outcome of the suit.” Weatherbee v. Hutcheson, 114 Ga. App. 761, 764 (152 SE2d 715) (1966). However, precaution should be taken to avoid specifically informing the jury that a plaintiff or defendant has insurance coverage, as “[t]hat knowledge on the part of the jury can be, and often is, prejudicial and harmful.” Id. at 765. By requesting the jury to be qualified relative to any possible interest in Interstate, which it had every right to do, the appellant most certainly did not invite the appellees’ improper injection of the appellant’s insurance coverage. Although the interjection of insurance into a case does not automatically result in reversible error, see Reliance Ins. Co. v. Bridges, 168 Ga. App. 874 (3) (311 SE2d 193) (1983), this court has recently noted that “the general rule against admitting evidence of insurance or unnecessarily referring to it. . . has not relaxed but has strengthened.” Collins v. Davis, 186 Ga. App. 192, 195 (366 SE2d 769) (1988).

In the instant case, regardless of whether the appellee’s interjection of the defendant’s insurance was deliberate or not, the fact remains that the jurors were put on notice that the defendant in this case had insurance. After the jury had been so poisoned, the trial court’s instruction to disregard that poisoning was an inadequate cure. Accordingly, new trial should be granted, and I must respectfully dissent.

I am authorized to state that Judge Sognier and Judge Benham join in this dissent.

Robert J. Reed, McCurdy & Candler, Michael C. McGoff, for appellees.


author: Banke, Presiding Judge.

text:
    A89A1300.
    OSBORNE v. THE STATE.
    (387 SE2d 383)
   Banke, Presiding Judge.

Osborne appeals his conviction of possession of marijuana with intent to distribute.

Upon receiving information from an informant that the appellant was dealing in marijuana, Captain Wheeler of the Douglas County Sheriffs Department authorized the informant to arrange for an undercover purchase of marijuana from the appellant. The appellant was arrested when he appeared at the designated time and place for the transaction, and approximately three pounds of marijuana were seized from the trunk of his automobile. At trial, the appellant asserted the defense of entrapment. Held:

1. The appellant contends that the trial court erred in allowing him to be cross-examined regarding his post-arrest silence. The appellant testified on direct examination that he had been pressured into obtaining the marijuana by repeated requests from a co-worker and the co-worker’s wife. On cross-examination, the state’s attorney asked him why, upon exiting his car at the time of his arrest, he had not immediately divulged to the officers that he was the victim of a “setup.” He responded that he was “in shock” and “didn’t have time for anything.”

“The silence of an arrestee prior to his receipt of the Miranda warnings may be used by the State for purposes of impeachment.” Lanham v. State, 184 Ga. App. 554 (2) (362 SE2d 131) (1987). See also Fletcher v. Weir, 455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982); Bennett v. State, 254 Ga. 162 (4) (326 SE2d 438) (1985); Hollis v. State, 174 Ga. App. 627 (330 SE2d 817) (1985). Since the question posed to the appellant referred to the period of time prior to his receipt of the Miranda warnings, the trial court did not err in allowing it.

2. The appellant contends that the trial court erred in denying his pre-trial motion to compel disclosure of the identity of the informant. The appellant testified during the trial that he believed the informant was the co-worker who had asked him to purchase the marijuana. In fact, the informant was the co-worker’s wife, who was thereafter called by the state as a rebuttal witness and thereby subjected to cross-examination by the appellant. The appellant has not suggested what he would have done differently had the identity of the informant been revealed to him earlier in the proceedings. It is axiomatic that harm as well as error must be shown to authorize a reversal. See generally Hazelrig v. State, 171 Ga. App. 942 (1) (321 SE2d 437) (1984). Accordingly, this enumeration of error provides no grounds for reversal.

3. The appellant contends that the trial court erred in allowing the state to elicit testimony from the investigating officer and the informant to the effect that he was a known drug dealer. This testimony was received with a limiting instruction that it was to be considered only to explain the officer’s conduct and not as substantive proof of the appellant’s guilt.

OCGA § 24-3-2 provides that “[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted not as hearsay but as original evidence.” However, in Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), the Supreme Court held that this rule could properly be applied only in those situations “where the conduct and motives of the actor are . . . matters concerning which the truth must be found (i.e., are irrelevant to the issues on trial). . . .” Id. at 867. While the fact that the investigating officer and the informant in the present case considered the appellant to be a known drug dealer may have provided an explanation for how he had come to be the object of a drug investigation, this information cannot reasonably be considered relevant as a circumstance of his arrest. Indeed, if the criminal reputation of a defendant could be considered admissible in every case in which it constituted a factor giving rise to the commencement of a criminal investigation against him, the rule against the introduction of evidence of a criminal defendant’s general bad character (see generally OCGA § 24-9-20 (b)) would be undermined to such an extent as to render it virtually meaningless. See Little v. State, 165 Ga. App. 389 (3) (300 SE2d 540) (1983). In the context of the other evidence in this case, however, we do not believe the admission of the testimony in question constituted reversible error. The informant further testified that, shortly before the transaction under consideration but prior to her becoming a police informant, she had made a previous purchase of marijuana from the appellant and that he had initiated the discussions leading to that transaction. “[P]roof of a defendant’s ‘innocent’ state of mind (i.e., non-predisposition) is essential to maintenance of a successful entrapment defense. . . .” Keaton v. State, 253 Ga. 70, 73 (316 SE2d 452) (1984). Under the circumstances, we believe it is highly probable that the testimony by the informant and the detective that the appellant was a known drug dealer did not contribute to the verdict. Accord Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984); Little v. State, supra. Accordingly, we hold that this enumeration of error establishes no ground for reversal.

Decided October 6, 1989

Rehearing denied October 24, 1989.

Mark T. Sallee, for appellant.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

4. The appellant contends that the trial court erred in admitting testimony concerning his previous arrest on an unrelated charge, which apparently had not resulted in any prosecution. The appellant elected to testify in his own behalf and on direct examination volunteered the following: “Fve never been convicted of anything and Fve never been in trouble before. . . .” During cross-examination, the state’s attorney asked the appellant whether that statement was truthful; and he replied that he felt it was. The prosecutor then asked if he considered it “trouble” to have been arrested for theft by receiving stolen property some two months prior to his arrest on the charge for which he was being tried. As the evidence concerning the prior arrest had the effect of impeaching the appellant’s testimony that he had never before been “in trouble,” we hold that it was properly admitted. See generally Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988).

5. Taken as a whole, the trial court’s charge on entrapment constituted a complete and correct statement of law. See Turner v. State, 178 Ga. App. 888, 890 (345 SE2d 99) (1986).

6. The appellant’s remaining enumerations of error concern the introduction of evidence regarding matters as to which the appellant himself elicited like testimony. “Assuming that the admission of [the] testimony was error, it was harmless because ‘other testimony to same effect and of like nature was introduced without objection.’ ” Buffington v. State, 171 Ga. App. 919 (2) (321 SE2d 418) (1984), citing Sapp v. Callaway, 208 Ga. 805 (69 SE2d 734) (1952).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1580.
    SHEETS v. J. H. HEATH TREE SERVICE, INC.
    (387 SE2d 155)
   Carley, Chief Judge.

Appellant-plaintiff was employed by Labor Pool. Labor Pool is in the business of making its employees available to others on a temporary basis. Appellee-defendant contracted with Labor Pool for four temporary laborers to assist in a land-clearing project. Appellant was one of the four Labor Pool employees who was provided to appellee. While engaged in the performance of his duties as appellee’s temporary laborer, appellant was injured. He received workers’ compensation benefits from Labor Pool. Appellant then brought this tort action against appellee. Appellee answered and raised the defense that pursuant to OCGA § 34-9-11, workers’ compensation was appellant’s exclusive remedy. Subsequently, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee, finding that the undisputed evidence of record showed that appellant was appellee’s “borrowed servant.” Appellant appeals from the grant of summary judgment in appellee’s favor.

Decided September 29, 1989

Rehearing dismissed October 24, 1989.

Jean W. Levy, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, E. Alan Miller, for appellee.

“ ‘(I)n order for an employee to be a borrowed employee, the evidence must show that “(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant.” (Cit.)’ [Cit.] All of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred. [Cit.]” Food Giant v. Davison, 184 Ga. App. 742, 743 (362 SE2d 447) (1987). The evidence of record establishes that Labor Pool, as appellant’s general master, is in the very business of temporarily “loaning” its employees to others. Compare Shannon v. Combustion Engineering, 188 Ga. App. 239 (372 SE2d 818) (1988); Food Giant v. Davison, supra. So long as appellant was unassigned to a special master, Labor Pool obviously retained some control over him, including the right to terminate his employment as its “lendable servant.” However, once there was an assignment of appellant to a special master, Labor Pool relinquished that control during the existence of the “borrowed servant” relationship. Insofar as' the land-clearing project is concerned, appellant was in the exclusive control of appellee, and appellee had the right to discharge him from the performance of his duties. Accordingly, on the occasion when appellant’s injury occurred, he was, as to appellee, a “borrowed servant.” The trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

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


text:
    A89A1871.
    A89A1947.
    HILL v. THE STATE. REIMAN v. THE STATE.
    (387 SE2d 582)
   Banke, Presiding Judge.

While appellants Hill and Reiman were enrolled as students at the University of Georgia, their apartment, located in the City of Athens more than 500 yards from university property, was searched by campus police officers pursuant to a warrant. On the basis of contraband seized during this search, each was convicted of three counts of violating the Controlled Substances Act. On appeal, the appellants enumerate as error the denial of their motions to suppress this contraband, contending that the campus police lacked the authority to obtain and execute a search warrant for a residence located more than 500 yards off campus.

It has been stipulated that the officers who conducted the search were duly certified peace officers, meaning that they had been certified as such by the Georgia Peace Officer Standards & Training Council. See generally OCGA § 35-8-1 et seq. Although an officer from the Athens Police Department accompanied the campus police on the raid, he left shortly after entry was gained into the residence, and neither he nor any other local law enforcement officer was involved in obtaining the warrant or in conducting the investigation which led to its issuance. Held:

OCGA § 20-3-72 provides that “[t]he campus policemen and other security personnel of the university system who are regular employees of the system . . . have the power to make arrests for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board.” Cf. OCGA §§ 20-8-2; 20-8-4. The State concedes that, because the appellants’ residence was not located within 500 yards of university property, the campus police officers who obtained and executed the search warrant at issue in this case were not authorized as police officers to make an arrest at that location. However, it contends that, as duly certified peace officers, they were nevertheless empowered pursuant to OCGA §§ 17-5-20 and 17-5-21 to obtain and execute the search warrant and that having done so, and having thereby determined that the appellants were in possession of illicit drugs, they were authorized pursuant to OCGA § 17-4-60 to effect the arrest in their capacity as private citizens.

OCGA § 17-5-21 (a) states that a search warrant may be issued based on probable cause established by “the written complaint of any officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws. . . .” (Emphasis supplied.) Similar language appears in OCGA § 17-5-20, and, consistent with these Code sections, OCGA § 17-5-24 provides that a search warrant “shall be directed for execution to all peace officers of this state.” (Emphasis supplied.) In Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987), this court held, in effect, that as used in these statutes the term “officer” refers only to those officers who have been certified as such pursuant to the Georgia Peace Officer Standards & Training Act, OCGA § 35-8-1 et seq. In Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987), and Fowler v. State, 128 Ga. App. 501 (c) (197 SE2d 502) (1973), we held that a peace officer has the authority to apply for and execute a search warrant for property located outside the political subdivision by which he is employed.

While the foregoing authorities do indeed tend to support the trial court’s decision in this case, we do not believe that the legislature intended to give to University of Georgia campus police and security personnel carte blanche authority to obtain and execute search warrants directed to residences or businesses located outside the immediate vicinity of university property. Rather, we read OCGA § 20-3-72, supra, as expressing a legislative intention to limit the law enforcement jurisdiction of such personnel to offenses committed upon property under the jurisdiction of the Board of Regents or located within 500 yards of such property. In this interpretation, we are supported by a 1970 opinion of the Attorney General, stating, in response to an inquiry by the Board of Regents, that “[a]s a campus policeman’s authority is addressed to crimes committed upon land under the jurisdiction of the Board of Regents, search warrants must be confined to the territorial limits of the campus.” Opinions of the Ga. Attorney General, 1970, pp. 96, 98 (Opinion No. 70-69, issued April 22, 1970.)

While we recognize that an opinion of the Attorney General has no precedential value, we are inclined to attribute authoritative weight to this one, both because it has existed unchallenged for almost 20 years and because it comports with our own reading of the applicable statutes. Additionally, we observe that the Attorney General, as legal advocate for the state, may normally be expected to interpret the law in a manner tending to sanction the exercise of governmental powers by state officials. Thus, when the Attorney General interprets the law in a manner restrictive of the exercise of such powers, somewhat greater objectivity and weight may reasonably be attributed to his opinion than might be warranted under contrary circumstances.

For the foregoing reasons, we conclude that the search of the appellants’ residence was not conducted pursuant to lawful authority, and we accordingly hold that the trial court erred in denying their motions to suppress.

Judgments reversed.

Sognier and Pope, JJ., concur.

Decided October 10, 1989

Rehearing denied October 24, 1989

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellant (case no. A89A1871).

Hudson & Montgomery, James E. Hudson, for appellant (case no. A89A1947).

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.


text:
    A89A1941.
    THE STATE v. LASSITER.
    (387 SE2d 596)
   Sognier, Judge.

The Superior Court of Camden County granted William Lassiter’s demurrer to his indictment on a charge of bribery and the State appeals.

The indictment charged that appellee committed the offense of bribery “on or before July 2, [1986] ... [in that appellant did] give or offer to give another person, to-wit: Stanley Edgy, a Deputy Sheriff of Camden County, Georgia, acting for or on behalf of a political subdivision of the State of Georgia, a benefit or consideration to which he was not entitled, to-wit: United States Currency, with the purpose of influencing him in the performance of an act related to the functions of the office or employment of the said Stanley Edgy, all of said act being contrary to the laws of said State, the good order, peace and dignity thereof.” The superior court noted that the indictment failed to state what appellee attempted to influence the deputy sheriff to do, and, citing State v. Black, 149 Ga. App. 389 (254 SE2d 506) (1979), held that the indictment as framed failed sufficiently to apprise appellee of “what he must be prepared to meet.”

We reverse. We find this case controlled by the opinions in Humphrey v. State, 231 Ga. 855, 860 (III) (204 SE2d 603) (1974) and Wellborn v. State, 78 Ga. App. 520, 524 (1) (c) (51 SE2d 588) (1949). See also Saunders v. State, 43 Ga. App. 59, 61 (1) (a) (158 SE 433) (1931). The only factual distinction between those opinions and this appeal is that in each of those cases, the accused was the person who accepted the bribe, rather than, as here, the person who allegedly proffered the bribe. Like appellee here, the accuseds in Wellborn and Saunders, supra, specifically challenged the failure of the indictments “to set out in what respect the official behavior . . . was to be influenced by payment of the money alleged to have been given . . . and what official act was to be performed or not to be performed ... as the result of the payment of said sum.” Wellborn, supra at 524 (1) (c). The indictments were upheld in those opinions and in Humphrey, supra, where the language of the indictment closely parallels the language in the indictment sub judice. “The indictment is basically couched in the terms of the statute and adequately puts the defendant on notice that he is accused of the crime of bribery. It alleges a particular date and person [to] whom the alleged bribe was [given] for the purpose of influencing [the deputy sheriff] in the performance of his duties. . . . This meets the test of the law and is sufficient.” Humphrey, supra at 860 (III). Accordingly, the trial court erred by granting appellee’s demurrer.

Decided October 24, 1989.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellant.

John J. Ossick, Jr., for appellee.

Judgment reversed.

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