text:
    75309, 75310.
    HODGSKIN v. MARKATRON, INC. et al.; and vice versa.
    (365 SE2d 494)
   Sognier, Judge.

Jeanette Hodgskin instituted suit against Markatron, Inc., Tim Titus and Lyle Diamond (hereinafter referred to collectively as “Markatron”) to recover sales commissions allegedly due under an employment contract. The trial court found in favor of Markatron on its motion for summary judgment as to Counts III, IV and V of Hodgskin’s complaint; Hodgskin appeals from that order only as to Counts III and V in Case No. 75309. Markatron cross-appeals in Case No. 75310 from the trial court’s denial of its motion for substitution of party plaintiff.

The record reveals that Hodgskin and Markatron entered into an employment contract which provided that Hodgskin was to be paid “a commission on all sales procured by [her] in an amount equal to 50 percent of [Markatron’s] gross profit.” Hodgskin brought suit against Markatron after it began calculating “gross profits” by a method which violated the employment contract, as asserted by Hodgskin, and which resulted in reduced commission compensation for her.

1. In Case No. 75309 Hodgskin contends first that the trial court erred by granting summary judgment to Markatron on Count III of her complaint as amended in which she alleged that “[b]y withholding a part of the compensation due [Hodgskin] . . . [Markatron] has wrongfully converted to its own use not less than $8,587.45 of [Hodgskin’s] personal property.” Hodgskin accordingly sought damages from Markatron “in an amount not less than $8,587.45.”

We do not agree with Hodgskin that the theory of conversion is applicable here and affirm the trial court’s order granting summary judgment to Markatron on Count III. Hodgskin is not seeking to recover some specific money, either in certain bills or coins to which she had title, but instead seeks to recover a certain amount of money generally. There is no evidence in the record that there were ever any particular bills delivered or counted out which belonged to Hodgskin. Rather, it appears Hodgskin’s claim for $8,587.45 could have been discharged by the payment of any lawful currency of the United States, whether it constituted a part of Markatron’s gross profits then in hand or not. Thus, this is not such a case for which a cause of action for conversion was intended. See Cooke v. Bryant, 103 Ga. 727 (30 SE 435) (1898).

2. In her remaining enumeration, Hodgskin asserts error in the trial court’s grant of summary judgment to Markatron on Count V of her complaint for attorney fees. Since Hodgskin acknowledges that her claim for attorney fees is based solely on her Count III conversion claim, our holding in Division 1 affirming the trial court’s grant of summary judgment to Markatron as to Count III requires that we likewise affirm the trial court’s grant of summary judgment to Markatron as to Count V.

3. In Case No. 75310, Markatron contends the trial court erred by denying its motion for substitution of party plaintiff asserting that Hodgskin had assigned her chose in action to Hodgskin Enterprises, Inc. In support of its motion, Markatron submitted the affidavit of its president, Titus, stating “it was [his] understanding” that Hodgskin’s right to commission payments “as well as all other rights she had under her employment agreement with Markatron had been assigned to Hodgskins [sic] Enterprises, Inc.” because of a letter signed by Hodgskin and her husband. The letter contained the statement that any sums from Markatron made payable personally to Hodgskin in the past and all payments in the future would “be treated as outside services paid to Hodgskin Enterprises, Inc.” Both Hodgskin and her husband averred in affidavits that no assignment of any rights to Hodgskin Enterprises, Inc. had occurred nor was such an assignment intended to result from the letter they signed which, they asserted, was intended instead to obviate the requirement that Markatron withhold F.I.C.A. and other sums from Hodgskin’s commission payments.

Decided January 26, 1988

Rehearing denied February 8, 1988.

Anthony M. Thomasson, Gary W. Bross, Elizabeth Schoeff, for appellant.

John W. Gibson, James P. P. Dirr, for appellees.

Under OCGA § 9-11-17, a real party in interest objection is a matter in abatement and does not go to the merits of the action. See Rigdon v. Walker Sales & Svc., 161 Ga. App. 459, 462 (288 SE2d 711) (1982). “When it is necessary to consider matters outside the pleadings in ruling on a motion to dismiss for failure to prosecute the action in the name of the real party-in-interest, this may ... be done under the provisions of OCGA § 9-11-43 (b). [Cits.]” Warshaw Properties v. Lackey, 170 Ga. App. 101, 102 (316 SE2d 482) (1984). The trial court here “correctly considered [Markatron’s motion] under OCGA § 9-11-43 (b) and exercised its discretion to determine the matter by apparent consideration of evidence presented in part by deposition and affidavits. [Cit.]” Fleming v. Caras, 170 Ga. App. 579, 580 (317 SE2d 600) (1984); see also Lott v. Liberty Mut. Ins. Co., 154 Ga. App. 474, 475 (1) (268 SE2d 686) (1980). In view of the presence of evidence explaining the nature of the letter signed by Hodgskin, which rebutted Titus’ affidavit as to his “understanding” of the relationship between Hodgskin and Hodgskin Enterprises, Inc., and in the absence of evidence establishing an outright assignment by Hodgskin to Hodgskin Enterprises, Inc., we believe Hodgskin has made such affirmative showing of no assignment as to withstand Markatron’s motion for substitution of party plaintiff. See Fleming, supra at 581. Thus, we find no error in the trial court’s denial of Markatron’s motion.

Judgment affirmed.

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


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    75426.
    HOPKINS v. MARTIN.
    (365 SE2d 544)
   Carley, Judge.

Appellee fell while working as a roofer. As a result of his injuries, appellee filed a. claim for workers’ compensation wherein he asserted that either appellant or another individual was his employer. Appellee’s claim came on for a hearing before an administrative law judge (ALJ) and the parties stipulated that the only issues to be determined were the identity of appellee’s employer and whether appellee and his employer “came under the [A]ct.” The ALJ made an award in favor of appellee and against appellant as his employer. Upon its de novo review, the Full Board made the ALJ’s award its own. Appellant’s appeal to the superior court resulted in an affirmance of the Full Board’s award. Appellant applied to this court for permission to file a discretionary appeal from the order of superior court affirming the award of the Full Board. This appeal results from the grant of appellant’s application.

The finding that appellant was an employer of appellee at the time the injury occurred is supported by the evidence. “ ‘A finding of fact by . . . the State Board of [Workers’] Compensation, when supported by any evidence, is conclusive and binding upon the court, and . . .’ [Cit.] ‘[n]either the superior court nor the Court of Appeals has any authority to substitute itself as the fact finding body in lieu of the board.’ [Cit.]” Monticello Mfg. Co. v. Tillman, 166 Ga. App. 385, 386 (304 SE2d 740) (1983). See also Firestone Tire &c. Co. v. Crawford, 177 Ga. App. 242 (2) (339 SE2d 292) (1985).

However, appellant’s mere status as an employer of appellee is not determinative of appellant’s liability to appellee for workers’ compensation. See OCGA § 34-9-2 (a), which provides, in part, that our Workers’ Compensation Act does not “apply to employees whose employment is not in the usual course of trade, business, occupation, or profession of the employer or not incidental thereto; . . . nor to employers of such employees; nor to any person, firm, or private corporation, including any public service corporation, that has regularly in service less than three employees in the same business within this state unless such employees and their employers voluntarily elect to be bound. . . .” The ALJ’s findings of fact, as adopted by the Full Board, state in pertinent part: “I find that the men working on the roof were employees of [appellant]. That is the only issue involved in this case. . . .” This was erroneous. Appellant had stipulated that the issue of whether appellee’s employer “came under the [A]ct” was also to be resolved and appellant had contested the applicability of the Act pursuant to the provisions of OCGA § 34-9-2 (a). In the absence of a stipulation, “[t]he burden is upon the claimant to establish every fact necessary to uphold an award of compensation, including the jurisdiction of the board.” Newsome v. Loper, 101 Ga. App. 90 (112 SE2d 781) (1960). See also Fowler v. Gilmer County Commrs. of Roads & Revenues, 164 Ga. App. 1 (1) (294 SE2d 708) (1982). “ ‘The findings of fact in the present case are insufficient and incomplete, and the award of the [Full Board] was not authorized by the findings of fact made and the judge of the superior court erred in affirming it on appeal. It is ordered that the case be recommitted to the State Board of [Workers’] Compensation in order that proper findings of fact may be made on the issues involved.’ [Cit.]” United States Fire Ins. Co. v. Phillips, 120 Ga. App. 51, 53 (3) (169 SE2d 665) (1969). See also General Motors Corp. v. Peeples, 138 Ga. App. 705 (227 SE2d 472) (1976).

Decided February 8, 1988.

Larry N. Hollington, for appellant.

Jack E. Boone, Jr., Victor C. Hawk, for appellee.

Judgment reversed with direction.

Banke, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    75880.
    GARDNER v. BLACKSTON et al.
    (365 SE2d 545)
   Deen, Presiding Judge.

Appellant Gardner was driving at night on a Cobb County highway when a tractor-trailer truck pulling a low-boy trailer carrying a heavy road-grader made a left turn from a side road across his path. Gardner testified that he never saw any lights on the trailer and that, therefore, thinking the truck had cleared his lane, he did not apply his brakes. He hit the trailer with such force that the road-grader was knocked off. He sustained extensive injuries, and his automobile was severely damaged. There was testimony that he had been travelling at a high rate of speed.

The investigating officer testified at trial that the truck driver had initially stated that the lights on the trailer were “shorted out” but had subsequently stated, while still at the accident scene, that he had meant the lights were shorted by the impact, and not that they had been out of order while he was driving. He acknowledged that one of his corner “marker” lights had not been working. The trial court granted appellees’ motion for partial directed verdict, thereby removing from the jury’s consideration the issues of punitive damages, attorney fees, and costs, as well as that of “spoliation” of, or tampering with, the evidence regarding whether the trailer lights went out before or after the collision. Appellant received $81,660 as compensatory damages, but no punitive damages. He appeals, enumerating as error the trial court’s granting appellees’ motion for partial directed verdict with regard to the spoliation charge, and the court’s refusal to submit to the jury either the full or the redacted version of the accident report. Held:

Decided February 8, 1988.

James S. Owens, Jr., George R. Neuhauser, for appellant.

Harold T. Daniel, Jr., Burke B. Johnson, for appellees.

1. Our scrutiny of the record reveals no error with respect to the first enumeration. Neither does Georgia law recognize spoliation of evidence as a separate tort, nor is there any indication here that the evidence was despoiled, or tampered with. See generally OCGA Title 51. This enumeration has no merit.

2. Likewise, we find no error in the trial court’s declining to send the accident reports out with the jury. The investigating officer, as well as others, was fully examined at trial regarding the substance of the reports, and the trial court may well have considered that sending them out with the jury would unduly emphasize their content. Compare Thomason v. Genuine Parts Co., 156 Ga. App. 599 (275 SE2d 159) (1980). These enumerations, too, are without merit.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in the judgment only.


text:
    76034.
    BETSILL v. THE STATE.
    (365 SE2d 548)
   Deen, Presiding Judge.

The appellant, Tommy Betsill, was convicted of three counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal his sole contention is that the trial court improperly commented on the evidence.

During cross-examination Betsill admitted selling the cocaine as a favor to the buyer, but stated that he had not meant to violate the law. During closing argument defense counsel reiterated Betsill’s declared intent, and the trial court interjected that “[y]ou don’t have to intend to break the law, you have to intend to do the act that was done. So, I don’t want the jury to be misled by that statement.” Bet-sill contends that this comment deprived him of a fair trial guaranteed under both the Federal and State Constitutions.

Defense counsel did not object or move for mistrial at the time of the trial court’s comment, and the issue thus was not preserved for appeal. Cf. Miller v. State, 180 Ga. App. 525 (349 SE2d 495) (1986). In any event, the trial court’s comment was merely a correct statement of the law concerning criminal intent, Howard v. State, 222 Ga. 525 (150 SE2d 834) (1966), properly interjected to prevent the jury from being misled. In short, the comment did not deprive Betsill of a fair trial, but rather ensured that the trial was fair for the state as well.

Decided February 8, 1988.

Kenneth L. Gordon, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76052.
    THE STATE v. HORTMAN.
    (365 SE2d 887)
   Deen, Presiding Judge.

Police Officer Clark was directing traffic around a highway wreck while a fellow officer and firemen were dealing with the wreck itself. The scene was illuminated by the lights of the police and fire department vehicles and the headlights of the passing traffic. All approaching vehicles responded to Officer Clark’s hand-signals to pull into the left-hand lanes except that of appellee, which, in disregard of Clark’s waving flashlight, remained in its lane and passed at a high speed. Clark pursued the Hortman car on his motorcycle but was unable to overtake it (he “clocked” Hortman’s car at 90 m.p.h.); another officer driving a patrol car finally overtook and stopped the fleeing vehicle.

Upon emerging from his automobile, appellee was unsteady on his feet; his clothes were in disarray, his eyes were bloodshot, and a strong odor of alcohol permeated the area. Hortman, at the officers’ instruction, made two unsuccessful attempts to recite the alphabet and another to bring his finger to his nose. The second officer then placed him under arrest for driving under the influence, speeding, and failing to obey a police officer; at this time, according to Officer Clark, the other officer advised Hortman of his implied consent rights, with Clark witnessing the procedure.

Hortman filed a motion to suppress the results of the blood alcohol test on the ground of lack of probable cause for the arrest. The arresting officer was not present at the hearing, but Officer Clark was there and testified to the facts recited, supra, and stated that the other officer had read the implied consent rights from a printed card. Defense counsel objected to this testimony on the basis that the card on which the rights were printed was the “best evidence” of the contents of the warning regarding the implied consent rights, and that no such card was presented in evidence at the hearing. The defense then orally amended the motion to suppress, alleging that the State had not proved that the implied consent warnings were given. The trial court granted the motion to suppress, presumably on the ground of the oral amendment; the order itself does not state the basis on which the motion was granted. The State appeals under OCGA § 5-7-1 (4), enumerating as error the trial court’s actions in sustaining the objection to the testimony and granting the motion to suppress on the basis of the oral amendment. Held:

1. The State contends that the “best evidence” rule was misapplied here. This rule is applicable where the essential fact to be proved is either the existence or the contents of a writing. Young v. State, 226 Ga. 553 (176 SE2d 52) (1970); Calloway v. State, 176 Ga. App. 674 (337 SE2d 397) (1985). When the existence of a fact, and not the contents of a writing, is the question at issue, both oral and written evidence of the fact may be admitted as primary evidence. Peterson v. Lott, 200 Ga. 390 (37 SE2d 358) (1946); Denson v. State, 149 Ga. App. 453 (254 SE2d 455) (1979). See also OCGA § 24-3-2 et seq. In the instant case the essential fact which the State sought to prove was that the defendant had been informed of his implied consent rights, OCGA §§ 40-5-55; 40-6-392: it was not the existence of the arresting officer’s “implied consent” card or the contents of the matter printed thereon which was at issue. The essential facts concerning which Officer Clark sought to testify were (1) that as an experienced police officer he was thoroughly familiar with the “implied consent” rights and was able to recognize them when he heard them; and (2) that he had heard the other officer read these rights to the defendant/appellee at the time of the stop and arrest. The transcript reveals that the prosecutor had informed the court as to the nature of the evidence he was seeking to elicit from the police officer. Thus the State substantively complied with the requirement of a proffer of evidence. See, e.g., Griffin v. Henderson, 117 Ga. 382 (43 SE 712) (1903); Poppell v. Ga. Power Co., 157 Ga. App. 488 (277 SE2d 777) (1981); Cel-Ko Bldrs. &c. v. BX Corp., 140 Ga. App. 501 (231 SE2d 361) (1976). The trial court erred in sustaining the objection to the proffered testimony.

2. The State further contends that the trial court erred in granting the motion to suppress. If, in the fact situation sub judice, there existed probable cause for the arrest, the sole remaining ground on which the motion to suppress could have been granted was that stated in the oral amendment; i.e., that the State had not proved that the implied consent warnings were administered. The undisputed facts of the instant case make it clear that probable cause did exist for the chase, stop, and arrest of the defendant. We have held, supra, that the proffered oral testimony (which would constitute the proof that the rights had been given) should have been admitted and the objection based on the “best evidence” theory should have been overruled. It follows, therefore, that a motion based on this legal theory is invalid, and that to grant such a motion is error.

Decided February 8, 1988.

Patrick H. Head, Solicitor, Melodie H. Clayton, Assistant Solicitor, for appellant.

Alan C. Manheim, for appellee.

Judgment reversed.

Carley and Sognier, JJ., concur.


text:
    76061.
    ALLEN v. HOWARD.
    (365 SE2d 546)
   Deen, Presiding Judge.

On May 19, 1986, Stacy Howard commenced this action against Thomas Allen, seeking the adjudication of Allen as the father of her unborn child and an award for parental care expenses and child support. At the time, Allen was in the United States Navy, residing in Tennessee but stationed at Fort Oglethorpe in Catoosa County, Georgia; he was personally served with process in Georgia. Allen answered on June 23, 1986, asserting as defenses lack of subject matter and personal jurisdiction, and improper venue. The child was born on January 8, 1987. Subsequently, Allen was transferred to San Diego, California, and on October 5, 1987, he filed a motion to stay the proceeding pursuant to the Soldiers’ and Sailors’ Relief Act of 1940, 50 USCA App. § 501 et seq. Following a hearing, the trial court denied that motion to stay, as well as the jurisdictional and venue defenses, and this appeal resulted. Held:

1. In Underhill v. Barnes, 161 Ga. App. 776, 777 (288 SE2d 905) (1982), this court held that “[w]hen the defendant undertook to show impairments in his ability to defend the action by alleging conclusions to that effect, in the form of an affidavit by his attorney, the evidence became subject to the rule that it must be construed most strongly against him. Gates v. Gates, 197 Ga. 11 (2) (28 SE2d 108) (1943). The court may attach significance not only to what the affiant said but also to what he failed to say about the facts within his knowledge. In so construing the evidence ‘the judge was authorized to find, from the absence of specific facts, such as that an unsuccessful attempt by the applicant to obtain a leave of absence from the [Navy] had been made, that such facts did not exist or else would have been alleged. . .’ Gates, supra at 16. The court was justified in determining that the defendant had not exercised due diligence or acted in good faith in attempting to make himself available for trial and that his military service did not affect his ability to conduct his defense.”

Decided February 8, 1988.

John W. Knapp, Jr., for appellant.

Larry D. Ruskaup, for appellee.

In the instant case, Allen likewise supported his motion to stay by submitting, along with proof of his military assignment, the affidavit of his attorney, who stated that Allen’s ability to conduct his defense was materially affected by reason of his military service, in that he could not adequately prepare for trial and could not be present at a trial in the action. Under these circumstances, the trial court properly concluded that pursuant to Underhill v. Barnes, supra, grant of the stay was not required by the evidence. Compare Vlasz v. Schweikhardt, 178 Ga. App. 512 (343 SE2d 749) (1986).

2. Allen’s various defenses were also properly denied. The trial court clearly had subject matter jurisdiction pursuant to OCGA § 19-7-40. Allen’s contention that personal jurisdiction was lacking because service was not perfected outside the state in accordance with OCGA § 19-7-41 is without merit, since personal service was perfected in Catoosa County, Georgia. Venue was proper in Walker County, Georgia, the county of residence of the child before and after his birth, pursuant to OCGA §§ 19-7-42 and 19-7-43.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Banke, Presiding Judge.

text:
    75190.
    BINION et al. v. IVESTER.
    (365 SE2d 515)
   Banke, Presiding Judge.

The appellee filed suit against the appellants to recover damages for their alleged conversion of certain items of personal property owned by her, consisting of furniture and household goods which she had left inside a house she had sold to them. A jury awarded her damages in the amount of $43,000 and also found in her favor on a counterclaim filed by the appellants. In this appeal from the denial of their motion for new trial, the appellants’ sole contention is that the trial court erred in denying their motion for directed verdict with respect to the appellee’s claim. Held:

The jury was authorized to conclude from the evidence that the appellants had entered into an oral agreement with the appellee at the time of the closing whereby they would retain possession of the personalty in question and would be entitled to use it without charge either until they reached an agreement with the appellee to purchase it from her or until the appellee returned to claim it. Such an agreement would not have been inconsistent with any covenant contained in the deed and, being collateral to the transfer of the real estate, would not have merged with the deed. Accord Cassville-White Assoc. v. Bartow Assoc., 150 Ga. App. 561, 563 (258 SE2d 175) (1979). Moreover, such an agreement would have been entirely consistent with the language of the sale contract, which contained the following special stipulation: “Purchaser to converse with seller regarding furniture items that could possibly remain and other negotiable items.”

Decided January 28, 1988

Rehearing denied February 9, 1988

Gerald P. Word, for appellants.

Richard G. Smith, James H. Bone, for appellee.

There was conflicting evidence on the issue of whether the appellee had manifested an intention to abandon the property in question, and the trial court was, of course, required to construe such evidence in favor of the appellee, as the party opposing the motion for directed verdict. See generally Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838) (1983). For these reasons, we hold that the motion for directed verdict was properly denied.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75244.
    THE STATE v. BANKS et al.
    (365 SE2d 855)
   Birdsong, Chief Judge.

The State appeals from the grant of a motion to suppress evidence by defendants Clifford Banks and Lonnie Penn. Officer W. L. Britt, working out of the Narcotics Bureau of the Atlanta Police Headquarters, received information from a confidential reliable informant, who had previously provided him with accurate information in 20 to 25 cases, that an individual known as “alias J. C. Clifford,” and his bodyguard, were transporting and delivering cocaine to several different locations in the Atlanta area. One location was “833-B Cascade Avenue.” The informant had personally observed “alias J. C.” and his bodyguard make distribution of cocaine. Officer Britt applied for and received a search warrant for “833-B Cascade Avenue,” and for “alias J. C. Clifford,” his bodyguard, and a pregnant woman, not otherwise identified. The search warrant was issued at “2:33 p.m., April 9, 1986” and Britt and his informant conducted a short stakeout on 833-B Cascade on April 9th, but the suspects did not appear. Between April 9 and April 17, the officers conducted occasional surveillance of that location but never saw either of the two suspects. At 7:00 or 8:00 p.m. on April 18, the informant produced additional information; a surveillance team was sent to the 833-B Cascade location, and Officer Britt and his informant conducted a stakeout at “Cascade Place,” which is approximately two and one-half blocks from 833-B Cascade. “Cascade Place” is a known drug location where persons conduct a “stop-and-copper” operation, i.e., individuals stand alongside the road and solicit persons in passing cars to stop and purchase drugs. Cascade Place is only one block long and has six houses in it. The informant had been in one of the houses but was not able to get the number. Because Officer Britt could not provide a magistrate with the exact number of the house, he did not attempt to obtain a search warrant for Cascade Place.

At approximately 11:30 p.m., defendants Banks and Penn arrived at Cascade Place in a Lincoln town car. The informant had told Britt that Banks always used leased cars and never returned in the same car. After Banks and Penn entered a house in Cascade Place, the informant departed after identifying the two suspects to Officer Britt. Britt called for the officers at 833-B Cascase to come to his location and also requested a marked police car and a uniformed officer to make the stop of the two suspects’ car, which was departmental policy. Banks and Penn exited the house at Cascade Place and departed before the marked police car arrived. Britt followed behind the suspects’ car and advised the other officers they were headed in their direction. Banks stopped at a shopping center on Cascade and went to a pay phone. Officer Britt drove up behind the suspects’ car, and the other police car pulled around the Lincoln and stopped in front of it. One officer exited the police car and yelled: “Police.” Banks attempted to run, but Britt ran behind his car in front of Banks, holding his police badge in one hand and a pistol in the other hand. He yelled: “Police, stop.” Banks stopped and raised his hands, exposing a shoulder holster in which there was a .357 magnum. The officer who jumped from the police car went to the Lincoln in which Penn was sitting on the passenger side, and saw Penn make a movement towards his legs. The officer saw that Penn had a .357 magnum lying between his legs and yelled: “Police, freeze.” Penn raised his hands and got out of the car.

When Officer Britt saw the pistol in Banks’ shoulder holster, he asked him if he had a permit. Banks said, “No,” and was placed under arrest. Britt said he knew that people involved in narcotics normally carried more than one weapon so he conducted a pat-down search of Banks and felt a plastic bag in his right jacket pocket. The plastic bag contained two plastic bags of a white powdery substance he suspected of being cocaine. Britt removed $445 in cash from Banks’ pants pocket. Banks was advised of his Miranda rights. A search of the Lincoln revealed a “gram scale” on which was a white powdery substance. On the rear seat was a bag containing approximately 50 small zip-locked plastic bags, normally used to package cocaine. Both men were arrested, the car impounded and subjected to an inventory search. Defendants moved to suppress the evidence seized and the trial court granted their motion. The State appeals. Held:

The State contends the police officer had probable cause to arrest the defendants. Defendants argue that the search warrant was invalid and had expired and could not authorize the action taken by the police on the morning of April 19. Under OCGA § 17-5-25, a search warrant is required to be executed within ten days “from the time of issuance.” This warrant was issued at 2:33 p.m. on April 9, and would expire at 2:33 p.m. on April 19. The arrest was made shortly after midnight on April 18, the early morning hours of April 19. The warrant had not expired and, though the searches were not executed pursuant to it, it is of value to the “totality of the circumstances.” A magistrate heard the evidence submitted by Officer Britt, that he had received from the informant, and found probable cause to approve issuance of a search warrant for defendants Britt and Penn and 833-B Cascade Avenue. Although the warrant was never executed, what transpired in this case was a warrantless arrest of both defendants based upon probable cause and a valid search.

An arrest is accomplished whenever the liberty of a person to come and go as he pleases is restrained. Clements v. State, 226 Ga. 66, 67 (172 SE2d 600); OCGA § 17-4-1. A warrantless arrest may be made by an officer if at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officer, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the suspects had committed or were committing an offense. Durden v. State, 250 Ga. 325, 326 (297 SE2d 237); OCGA § 17-4-20; Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142). The basis for issuance of a warrant by a magistrate is almost identical to the basis for a warrantless arrest, i.e., “facts sufficient to show probable cause that a crime is being committed or has been committed. . . .” OCGA § 17-5-21 (a). The U. S. Supreme Court (Whiteley v. Warden, 401 U. S. 560, 566 (91 SC 1031, 28 LE2d 306)) and this court (Collins v. State, 161 Ga. App. 546, 547 (287 SE2d 708)) have held that they are the same. The issue in the case at the bar being whether the facts that existed at the time of issuance of the warrant (in which the magistrate found probable cause existed) still pertained at the time of the arrest. Staleness of the facts relied upon is always a prime element in the determination of probable cause. A magistrate’s finding of probable cause on the issuance of a search warrant is entitled to great deference. Massachusetts v. Upton, 466 U. S. 727, 732 (104 SC 2085, 80 LE2d 721). And, information gained from a reliable informant can establish probable cause. Rugendorf v. United States, 376 U. S. 528 (84 SC 825, 11 LE2d 887). Further, corroboration of details given by an informant by subsequent investigation by police is of significant value. Illinois v. Gates, 462 U. S. 213 (3) (103 SC 2317, 76 LE2d 527). Here, the informant predicted Banks and his bodyguard would come to the Cascade area on the evening of April 18 and would go to a house in Cascade Place or 833-B Cascade. These predictions were confirmed by police surveillance. “ ‘Because an informant is right about some things, he is more probably right about other facts. . . .’ ” State v. Stephens, 252 Ga. 181, 183 (311 SE2d 823), quoting Illinois v. Gates, supra.

Decided January 14, 1988

Rehearings denied February 9, 1988

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellant.

W. Michael Maloof, M. Randall Peek, for appellees.

We do not find the information provided by the informant to Officer Britt on April 6 to be too stale on April 18 to act as an element of the “totality of the circumstances” in the determination of probable cause. Time is critical in a determination of staleness, but where the information provided is of an ongoing enterprise such as distribution of drugs, and such information has been updated by the informant on the evening of the arrest, as in the present case, and corroborated, at least in part, by police surveillance, the test to apply in a determination of probable cause is whether the totality of the information establishes the existence of reasonable probability that the conditions referred to in the warrant prevails at the time of the arrest. State v. Luck, 252 Ga. 347 (312 SE2d 791).

We find there was probable cause to arrest both defendants (Sanders v. State, 235 Ga. 425, 440 (219 SE2d 768)), and incident to such arrest police may make a full search of the individuals (United States v. Robinson, 414 U. S. 218, 225 (94 SC 467, 38 LE2d 427)), and of the car in their possession (Adams v. Williams, 407 U. S. 143, 149 (92 SC 1921, 32 LE2d 612)). Moreover, after the police lawfully discovered both appellant and his bodyguard armed, their continued search of the appellant and the car was most reasonable under the circumstances. Adams, supra at 149. The trial court erred in suppressing the fruits of the searches made of the defendants and their automobiles.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    75458.
    THOMAS et al. v. NEWNAN HOSPITAL et al.
    (365 SE2d 859)
   McMurray, Presiding Judge.

Appellants Ronald Fred Thomas and Sandra Lynn Thomas brought suit as parents of their deceased infant daughter and as temporary administrators of her estate against appellees Newnan Hospital, Boyce Thomas, M.D. and Kamil S. Cankir, M.D. The complaint alleged that the defendants were negligent, jointly and severally, in failing to render medical care and treatment to Jeanette Thomas with the degree of care, skill and attention required by Georgia law, thereby causing her death. Damages were sought for the full value of her life, for her pain and suffering, for the parents’ pain and suffering and for medical and funeral expenses. After an eight-day trial the jury returned a verdict in favor of all the defendants, and this appeal was filed.

The evidence, construed in a light most favorable to support the verdict, was as follows: On Sunday, September 12,1982, at about 7:20 p.m., three-year-old Jeanette Thomas was taken by her parents to the emergency room of Newnan Hospital. Her vital signs and history were taken by nurse Shirley Henson, who noted that the chief complaint was stomach cramps. The child’s temperature was 98.3, her pulse and respiration were regular and her skin was warm, which did not indicate that she was critically ill. She was given a general examination by a pediatrician on call, Dr. Boyce Thomas, including her ears, nose and throat, heart, rectum, palpation of her abdomen and urinary analysis. The examination revealed normal bowel sounds, normal heart rate, no rectal abnormalities and a normal rectal temperature, with no vomiting or observable intervals of pain. At no time did she show symptoms of intestinal prolapse and Dr. Thomas was able to exclude the presence of intussusception (telescoping of the bowel); his impression at the time was that she had a gastrointestinal disorder. The child was given an enema, which seemed to relieve her discomfort, and the parents were told to take her home with instructions to administer paregoric and call Dr. Thomas if her condition changed.

At about 11 p.m. the father called Dr. Thomas to say that the child had begun vomiting, but did not describe the appearance of the vomit as being unusual, nor state that there was a recurrence of severe pain. Dr. Thomas got the impression that she was developing an intestinal virus because her symptoms were not consistent with an abdominal obstruction. He called the emergency room of Newnan Hospital to order a shot of dramamine to be administered, and instructed Jeanette Thomas’ father to notify him if the injection did not stop her vomiting. Nurse Ella Ivey gave Jeanette Thomas the dramamine shot, but because this emergency room visit occurred only a few hours after the first one and was only for the purpose of getting a dramamine shot, there having been no apparent critical change in her condition, the nurse did not perform a full nursing assessment at that time. Mr. Thomas testified that he gave nurse Ivey a bowl into which his child had vomited on her way to the hospital, the vomitus being a very foul-smelling, green-tinged mucous, which the nurse disposed of. Neither nurse had any recollection of the events, which had occurred four years previous to the trial, and their testimony was based upon their medical charts and notes.

When Jeanette Thomas’ condition did not improve during the night, she was taken by her parents to Dr. Cankir, their family doctor, the next morning. After taking her history from the mother and examining the child, he asked that she be brought back that afternoon for blood work as she seemed anemic. The child was not in severe pain nor vomiting during this office visit. However, after her father went to fill a prescription from Dr. Cankir, Jeanette Thomas became very weak and the parents took her immediately to Newnan Hospital. Shortly after their arrival there the child went into cardiac arrest. Dr. Thomas, along with other emergency room personnel, resuscitated her and she was transferred to intensive care. Dr. Thomas told the parents he suspected a ruptured appendix and peritonitis and would arrange a consultation with a surgeon, Dr. Matthew Burns. Before the consultation or surgery occurred, Jeanette Thomas stopped breathing at 5:19 p.m. Despite repeated efforts she could not be revived and was pronounced dead at 6:20 p.m. Her death was determined to have been caused by a volvulus resulting from a rare congenital anomaly, or birth defect, a rotation of the small intestine which gradually cut off its blood supply and precipitated gangrene within the child’s abdomen. The resultant chemical deterioration ultimately brought about the cardiorespiratory arrest and Jeanette Thomas’ death.

At trial, Dr. Sanford Matthews, a practicing physician specializing in pediatrics, presented expert testimony on behalf of Dr. Thomas and Newnan Hospital. Dr. Matthews stated that the initial tentative diagnosis made by Dr. Thomas of gastroenteritis and prescribing paregoric, as well as his later decision to administer an injection of dramamine based upon the telephone conversation with Jeanette Thomas’ father, was appropriate and well within the proper standard of care. Dr. Matthews also considered the resuscitative actions taken not only met the standard of care, but were excellent. In his view, the child probably did have gastroenteritis, which precipitated the volvulus through excess activity of the intestines; but when her condition worsened “it was nine hundred and ninety-nine chances out of a thousand that it was appendicitis and one chance out of a thousand it was volvulus, and indeed the greater weight of the evidence would suggest that the child had peritonitis, which in ... an overwhelming number of instances comes from a ruptured appendix. ... It was unknowable at that time.” In his thirty years of practice Dr. Matthews had never treated a child with a volvulus. The vomiting and other symptoms related by the parents and shown by the child upon examination were commonly exhibited symptoms in early childhood, so that the diagnoses and treatment were logical and there was no departure from the standard of care required by OCGA § 51-1-27 as to any of the actions taken. Dr. Cecil Major testified as an expert witness that Dr. Cankir also complied with this standard of care in his treatment of Jeanette Thomas. Held:

1. Appellants contend that the trial court erred in ruling that they could not cross-examine Dr. Matthews in regard to his relationship as a consultant to the insurance carrier for Dr. Thomas and Newnan Hospital. They argue that the credibility of the expert witnesses of the parties was critical to the question of liability in this case; that Dr. Matthews was the only witness to testify that Jeanette Thomas was suffering from gastroenteritis when she first sought treatment; and that thus the probative value of showing the extensive relationship between Dr. Matthews and the insurance company for these two defendants outweighed any danger of prejudice to them.

Dr. Matthews testified on direct examination that he had only testified in one medical malpractice action about six or seven years previously, but had given depositions in such cases five or six times. He stated that he had received about seventy-five medical files for review in the last three or four years and revealed what he charged for consultation and depositions. On cross-examination he was questioned as to how much consulting he did for defendants in medical malpractice cases, the rates charged and how much he had been paid as a consultant for defendants in each year since 1982, including the instant suit. The point was clearly made to the jury that Dr. Matthews frequently did consultations for defendant doctors in medical malpractice actions and made considerable sums of money doing so. Dr. Matthews was not allowed to answer whether he had “received more than sixty five percent of consultations requested from sources other than doctors, lawyers and hospitals . . .” Variations on this question were also ruled inadmissible upon objection, as well as the answer that most requests for consultation on cases which might potentially be medical malpractice actions came from insurance companies.

It seems self-evident that insurers when called upon to defend their insureds must have expert advice as to how strong the case is against them, and will employ only the most competent persons for this purpose. It was brought out that Dr. Matthews’ professional competency and opinions were highly regarded by other physicians and pediatricians, as evidenced by his service as a guest examiner for the American Board of Pediatrics and as a member of the Peer Review Committee at Piedmont Hospital overseeing the quality of patient care. He also served as a faculty member or guest teacher at several eminent medical institutions, including Emory and Harvard Universities. There was no indication from the extensive direct and cross-examination of Dr. Matthews before the jury, or from the detailed in camera examination conducted by the trial court in considering what questions to allow on cross-examination, that his opinion was influenced by any “relationship” with defendants’ insurer or was anything other than the product of his own experience, interest and involvement in peer review programs, and his study of Jeanette Thomas’ medical treatment.

“We adhere to the rule that generally liability or no-fault insurance coverage of a litigant is not admissible in evidence, and that unnecessary disclosure of such fact is ground for mistrial or reversal. [Cits.]” Goins v. Glisson, 163 Ga. App. 290, 291 (1), 292 (292 SE2d 917) (1982). “The rule that the plaintiff be allowed the right of a thorough and sifting cross-examination must be balanced against the rule that irrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out.” Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 830 (3) (212 SE2d 638) (1975). See A. C. Gas Svc. v. Bickley, 160 Ga. App. 737, 739 (6) (288 SE2d 84) (1981). We agree with appellees that to accept appellants’ arguments would risk injection of the existence of liability insurance into every case in which a defendant doctor or hospital is supported by expert testimony directly or indirectly procured by their insurer. Since appellants were not curtailed in their cross-examination showing that Dr. Matthews was indeed hired as an expert on behalf of the defendants, they have failed to establish any harm or prejudice in not being allowed to pursue the desired cross-examination to show that he was a “regular” expert for their insurer. Thus, we find no abuse of discretion in the trial court’s rulings. Accord Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 381 (2) (a)) (277 SE2d 753) (1981).

2. Appellants complain that the trial court improperly allowed the two emergency room nurses who saw Jeanette Thomas on the two occasions she was brought there to testify as to their customary procedures in examining patients. Neither of these witnesses could remember the child being treated on either occasion, but testified both on direct and cross-examination from charts and records, none of which included any references to Jeanette Thomas’s being in great pain or vomiting. Appellants objected to the nurses’ testimony as creating an unwarranted inference that since these conditions did not appear in the charts or notations in the medical records, they were not present, because it was their usual custom and practice to note any unusual symptoms.

However, the rule is well established that a witness may testify to his own fixed habits and customs. Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 782 (7) (278 SE2d 653) (1981) and cits. “Although a witness may have no distinct or independent recollection of the details of a fact occurring in the course of the routine of his business, he may testify as to his fixed and uniform habit in such cases and state that he knows that he did not vary from that habit. [Cits.] The probative value of such evidence is for the jury to determine. [Cits.]” Fletcher Emerson Mgt. Co. v. Davis, 134 Ga. App. 699, 701 (2) (215 SE2d 725) (1975). While appellants could have attempted to show at trial that the nurses negligently failed to recognize alleged symptoms of the patient, the testimony objected to was properly admitted as circumstantial evidence of fixed and uniform habits rather than of conduct in other transactions, which is neither relevant nor admissible. Fletcher Emerson Mgt. Co. v. Davis, 134 Ga. App. 699, supra; Carsten v. Wilkes Supermarket, 181 Ga. App. 834 (1) (353 SE2d 922) (1987). Compare Williams v. Naidu, 168 Ga. App. 539 (309 SE2d 686) (1983); Thompson v. Moore, 174 Ga. App. 331 (1) (329 SE2d 914) (1985). Since other witnesses presented contrary testimony, this issue was properly placed before the jury to weigh the evidence and its credibility.

3. Appellants assert that the trial court improperly allowed counsel for Dr. Thomas and counsel for Newnan Hospital to cross-examine each other’s witnesses by the use of leading questions. Appellants concede that the allowance of leading questions is a matter within the sound discretion of the trial judge and that reversible error will not be found unless the practice is “ ‘palpably unfair and prejudicial to the complaining party.’ [Cits.]” Clary Appliance &c. Center v. Butler, 139 Ga. App. 233, 235 (2) (228 SE2d 211) (1976). They also recognize that Georgia law requires only that such joint opposing parties have “ ‘distinct interests,’ not necessarily opposing interests. [Cit.]” Lavender v. Wilkins, 237 Ga. 510, 516 (4) (228 SE2d 888) (1976). They nevertheless insist that there was nothing in the evidence to suggest that there were distinct interests between these two defendants; that they relied upon the same expert witness at trial; that until three weeks prior to trial they were represented by the same counsel; and that “the nature of the charade in which defendants’ counsel was engaged” was “palpably unfair and prejudicial.”

However, the complaint, jury charges and verdict form reveal that joint and several liability was alleged and litigated, and the trial judge noted in overruling the objection to the leading cross-examination that there was “an adverse situation here [in that] the hospital could be found liable and the doctor could not be; the doctor could be found liable and the hospital could not be.” In such a situation of competing interests, “in view of the broad discretion vested in the trial judge in resolving questions of this nature . . . which discretion necessarily must be exercised before the evidence is complete and the issues are fully developed, . . . and in view of the absence of any showing of harm to appellants, we do not find such abuse of discretion as would require a new trial.” Lavender v. Wilkins, 237 Ga. 510, supra at 516. Accord Blue Cross of Ga./Columbus v. Whatley, 180 Ga. App. 93, 96 (7) (348 SE2d 459) (1986). Cf. Norman Realty Co. v. Woodard, 166 Ga. App. 119, 125 (8) (303 SE2d 475) (1983).

Decided January 22, 1988

Rehearing denied February 9, 1988

James M. Poe, Theodore E. G. Pound, for appellants.

David H. Tisinger, C. Jerry Willis, Sidney F. Wheeler, Robert Sullivan, for appellees.

4. Appellants called Dr. Matthew Burns and under direct examination he testified that he did not recall having been asked by Dr. Thomas to arrange to see Jeanette Thomas on the afternoon of September 13 for a surgical consultation, and that he never examined her. The thrust of these questions raised an inference that Dr. Thomas had not complied with the statutory standard of due care by failing to arrange for the surgical consultation, or not doing so on a more urgent basis. See Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (a)) (304 SE2d 922) (1983). Appellees’ cross-examination of Dr. Burns was directed at whether Dr. Thomas had met this standard of care, and appellants objected on the ground that this should not be allowed because Dr. Burns had been called as a “factual witness, not an expert witness.” Obviously appellees were entitled under OCGA § 24-9-64 to a thorough and sifting cross-examination of this witness, and appellants have cited no authority to support their contention that they were prejudiced by an alleged procedural “ambush.” Moreover, on redirect, appellants asked the same types of questions in regard to the standard of care as were deemed inappropriate when asked by appellees on cross.

Both the examination of witnesses and “[regulation of the scope of cross-examination is within the sound discretion of the trial court and this discretion will not be controlled unless it is manifestly abused. [Cit.]” Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 547 (6) (309 SE2d 816) (1983); National Land &c. Co. v. Zugar, 171 Ga. 228 (1) (155 SE 7) (1930). We find no such abuse.

5. In light of the jury’s verdict in favor of appellees, which we have upheld here, it is unnecessary to consider the enumeration of error relating to the proper measure of damages to establish the value of the decedent’s life.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.


author: Benham, Judge.

text:
    75331.
    HARKNESS v. STATE OF GEORGIA.
    (365 SE2d 552)
    Decided February 9, 1988.

      James W. Bradley, for appellant.

      Andrew J. Ekonomou, Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, J. Robert Coleman, John B. Ballard, Jr., Senior Assistant Attorneys General, for appellee.
   Benham, Judge.

In March 1985, appellant was employed as a salesman for a cemetery for which a receiver was appointed. Appellant continued in that capacity until August of that year. The receiver sold the cemetery in September 1985 and received a discharge from the court in April 1986. Four months later, in August 1986, a year after his employment had ended, appellant filed a petition for payment of sums he contends are due him as commissions. The trial court denied the petition on the basis of untimeliness. We affirm.

What appellant has attempted to do, in essence, is intervene in a receivership which has already been concluded. “Intervention as of right or as a matter of discretion must be timely. [Cits] Intervention after judgment is not usually permitted, and to justify it requires a strong showing. [Cit.] The decisions whether intervention is timely and the showing sufficient are matters within the sound discretion of the trial court and will not be controlled absent an abuse of discretion. [Cits.]” Doe v. Garcia, 177 Ga. App. 61, 62 (338 SE2d 710) (1985).

The major part of appellant’s argument is that he relied on the receiver to pay him for commissions owing after his departure, and that he never received any notice that the receiver was to be discharged without paying those commissions. However, it is undisputed that appellant was aware that his former employer was in receivership, and that he waited a full year after termination of his employment before seeking the compensation he claims is due him. Under those circumstances, we find no abuse of discretion in the trial court’s conclusion that appellant’s attempt to intervene was untimely.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    75569.
    FULTON-DeKALB HOSPITAL AUTHORITY v. BISHOP.
    (365 SE2d 549)
   Sognier, Judge.

Keith Bishop, an emergency medical technician (EMT) who was employed by the Fulton-DeKalb Hospital Authority, which operates Grady Memorial Hospital, filed a claim seeking benefits under the Workers’ Compensation Act, OCGA § 34-9-1 et seq., after contracting hepatitis B, an infectious viral disease. The order of the administrative law judge (ALJ) awarding Bishop benefits was affirmed both by the State Board of Workers’ Compensation and the Superior Court of Fulton County. We granted the hospital authority’s application for discretionary appeal and reverse.

Former OCGA § 34-9-280 (3) (E) (amended Ga. L. 1987, p. 1474, § 1; OCGA § 34-9-280 (2)) lists the five criteria which must be met before a disease which is incurred as a result of exposure to or contact with some harmful substance will be deemed an occupational disease. See Synalloy Corp. v. Newton, 254 Ga. 174, 175 (326 SE2d 470) (1985). Those criteria are as follows: “(i) A direct causal connection between the conditions under which the work is performed and the disease; (ii) That the disease followed as a natural incident of exposure by reason of the employment; (iii) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment; (iv) That the disease is not an ordinary disease of life to which the general public is exposed; (v) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.” An employer is liable for compensation for occupational disease under OCGA § 34-9-280 et seq. “only where [the] disease arose out of and in the course of the employment in which the employee was engaged under such employer, was contracted while the employee was so engaged, and has resulted from a hazard characteristic of the employment in excess of the hazards of such disease attending employment in general.” Former OCGA § 34-9-281 (b) (2) (OCGA § 34-9-281 (b) (1)).

Appellant submitted and the ALJ accepted the letter statement by Dr. David Vroon, Director of the Clinical Laboratory and Associate Chief of Pathology and Laboratory Medicine at appellant’s facility, in which it was asserted that “[h]epatitis B is a fairly common viral disease found in all sectors of the American population. A person may be infected in a number of different ways, many of which would not necessarily be recognizable to the infected person. . . . The difficulty in recognizing contagious carriers or victims of hepatitis B make unknowing contact with contagious hepatitis more likely in all facets of life. Hepatitis B is an ordinary disease of life to which the general public is exposed. It is of such a character that an employee may have substantial exposure outside of the scope of his employment. Contraction cannot be linked exclusively to any particular activity or employment.”

Decided February 9, 1988.

Scott R. Owens, Clare H. Draper IV, Randall L. Allen, for appellant.

Attorney for appellee withdrew.

Appellee testified that his work placed him in close contact with the bodily fluids of other people. However, appellee presented no evidence that any of the persons with whom he had work contact during the incubation period for hepatitis B was a contagious carrier or victim of the disease. Appellee’s remaining evidence consisted of a publication asserting that the nature of an EMT’s work placed an EMT in situations where the possibility of contracting hepatitis B is three to five times greater than that experienced by the average person. While arguably fulfilling the criteria in former OCGA § 34-9-280 (3) (E) (i), (ii), and (v), (OCGA § 34-9-280 (2) (A), (B), and (E)), the evidence presented by appellee failed to address the criteria in subsections (iii) and (iv), (subsections (C) and (D), respectively). Thus, the only evidence of record in regard to these criteria unrebuttedly established in this case that hepatitis B is of a character to which appellee may have had unknowing and substantial exposure outside of his employment and is an ordinary disease of life to which the general public is exposed.

Since former OCGA § 34-9-280 (3) (E) requires the employee to prove all five of the criteria set forth therein, which appellee failed to do, neither the State Board of Workers’ Compensation nor the ALJ could have determined that the hepatitis B contracted by appellee constituted an occupational disease. Therefore, appellant was erroneously held liable for compensation for appellee’s illness under OCGA § 34-9-281 (b) and the order of the superior court affirming the State Board of Workers’ Compensation must accordingly be reversed.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur in the judgment only.


text:
    76085.
    In the Interest of J. T. S. et al.
    (365 SE2d 550)
   Banke, Presiding Judge.

The appellants appeal the termination of their parental rights with respect to their two minor children, W. S. and J. T. S.

At the time of the hearing, which took place in June of 1987, the appellant-mother was 30 years old and appellant-father was 76 years old. During their 12-year marriage the appellants had four children, two of whom died within only a few months of birth. The eldest surviving child, W. S., was born on July 3, 1979; and the remaining child, J. T. S., was born on November 29, 1985. J. T. S. has been diagnosed as microcephalic and is suffering from motor development delay and seizure disorder, as a result of which he requires constant medical supervision.

A Department of Family and Children Services (DFCS) caseworker testified at the hearing on the termination petition that she had begun working with the appellants after W. S. was born, initially on a daily basis and subsequently on a weekly basis, in an attempt to teach them such basic parenting skills as feeding, nurturing, and hygiene. This witness testified that even with this concerted effort the appellants were unable to care for their daughter adequately. For example, W. S. suffered from chronic ear and kidney infections for which she did not receive proper medical attention; and following those occasions when she was taken to the doctor, often at the prompting of the DFCS, the appellants neglected to administer the prescribed medicine to her. Although the DFCS had provided adequate clothing for W. S., the child was often dressed in clothing which did not fit properly. Also, she did not attend school on a regular basis and often used foul language.

It was shown that J. T. S. had been hospitalized for 9-10 days following his birth, suffering from severe dehydration and weight loss due to inadequate feeding and also from a skin rash attributable to his very poor hygienic condition. At that time, the hospital asked the DFCS to intervene due to fears that J. T. S. would not survive if returned to his parents.

In addition to the foregoing evidence, there was testimony that the appellant’s home was continually unsanitary. On the day the children were removed from the home, the carcasses of decaying rats and of an opossum were observed in the kitchen and living room of the house. Held:

1. There was clear and convincing evidence to support the termination of the appellants’ parental rights pursuant to OCGA § 15-11-81 (a) & (b). See generally In re B. D. C., 256 Ga. 511 (350 SE2d 444) (1986); In re N. F. R., 179 Ga. App. 346 (346 SE2d 121) (1986).

2. The appellants contend that the lower court erred in considering certain hearsay evidence contained in reports received from various doctors, teachers and other diagnostic specialists. Although OCGA § 24-3-14 allows for the admission of records made in the regular course of business, records which contain diagnostic opinions of third parties who are not available for cross-examination are generally inadmissible. See Baker v. State, 251 Ga. 464 (2) (306 SE2d 917) (1983). However, the Georgia Supreme Court has held that a trial court’s consideration of hearsay contained in such records will not constitute reversible error where “the evidence introduced at the hearing, not considering the report, was sufficient to support the findings and conclusions of the juvenile court judge.” In the Interest of M. A. C., 244 Ga. 645, 655 (261 SE2d 590) (1979). There was ample evidence in the present case to support the juvenile court judge’s finding of continued deprivation even without reliance on the hearsay records. It follows that the admission of the reports in question does not require reversal of the judge’s decision.

Decided February 9, 1988.

Claude S. Beck, for appellants.

Allan R. Ramsay, Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

. Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    75290, 75291.
    KELLEHER et al. v. THE STATE.
    (365 SE2d 889)
   Banke, Presiding Judge.

The appellants, Michael John Kelleher, Sr., and Michael John Kelleher, Jr., were jointly tried and convicted on charges of possessing cocaine, possessing marijuana (more than an ounce), and manufacturing marijuana, all in violation of the Georgia Controlled Substances Act. Kelleher, Jr., was additionally convicted of six counts of using a communication facility to commit or facilitate the commission of an act constituting a felony under the Controlled Substances Act. See OCGA § 16-13-32.3.

The contraband upon which the three joint drug convictions were based was seized from the Kellehers’ residence during the course of two searches conducted pursuant to separate search warrants. The original search warrant was predicated on information obtained through electronic surveillance of the Kellehers’ telephone lines. This surveillance had been conducted pursuant to an “investigation warrant” (see OCGA § 16-11-64) previously issued by the same superior court judge who issued the search warrant, based on information that Kelleher, Sr., his wife, and various other named individuals were participants in an ongoing racketeering enterprise involving the importation and distribution of illicit drugs. The surveillance warrant had authorized the monitoring of telephone lines both at the Kellehers’ residence and at a separate business office which they maintained under the name Seaboard Development, Inc., ostensibly for the purpose of buying and selling cars and boats.

The application for the original search warrant was accompanied by the affidavit of GBI Agent Fran Wiley purporting to establish probable cause for a belief that marijuana and cocaine were currently being concealed at the Kellehers’ residence. The averments contained in this affidavit, virtually all of which were based on information derived from the electronic surveillance of the Kellehers’ telephone lines, may be summarized as follows: (1) The Kellehers were believed to be “associated with known drug traffickers”; (2) Michael Kelleher [Sr.] was “very cautious when talking over his personal telephone . . . to known drug traffickers,” often concealing both the identity of his callers and the content of his telephone conversations by discontinuing conversations on his residence phone and resuming them on pay telephones located in the vicinity; (3) Mr. Kelleher was in possession of a telephone “beeper” which was “listed to” another individual; (4) he employed “various codes” when utilizing this beeper; (5) he “utilize [d] various different vehicles in the further concealment of his activities,” often interchanging license plates among them, including Georgia dealer plates; (6) no calls had been monitored at the offices of Seaboard Development, Inc., suggesting that no business activity was actually carried out there; (7) Mr. Kelleher was in the process of negotiating for the purchase of real estate valued in excess of $200,000 and had previously been involved in negotiations for the purchase of boats and motor vehicles valued in excess of $20,000, yet he had no apparent source of income with which to make such purchases; (8) he had discussed “large quantities of money” with certain individuals and had “been observed by officers in possession of large quantities of money”; (9) he had conducted numerous telephone conversations with an individual in Florida believed to be Eddie Lederman, who was on probation in that state “for a felony drug charge (marijuana)” and with whom Kelleher had, two years previously, been involved in an “attempted drug smuggling venture” involving a 1978 “Sport-coach” motor home registered to Seaboard Development, Inc.; (10) Kelleher had discussed with Lederman plans to transport both the motor home and a boat from Florida to Georgia; (11) on the same day that the warrant was sought, Lederman had been observed, apparently while en route from Florida to Georgia with the motor home and boat, meeting with the mother of another drug-trafficking suspect near an interstate highway exit in Florida; and (12) the woman in question had been driving a vehicle bearing a license tag registered to Seaboard Development, Inc., which had been sent to her by Mrs. Kelleher two days previously via Federal Express. Agent Wiley further averred in her affidavit that Mr. Kelleher’s son, Michael Kelleher, Jr., had talked “freely” during monitored telephone conversations about “smoking and buying marijuana as well as cocaine” and that he “appear[ed] unrestricted as to these drug activities at home.” Finally, the affiant expressed the belief, based on her past drug enforcement experience, that “[i]t is common for persons to use the controlled substances . . . which they are trafficking in.”

The initial warrant for the search of the Kellehers’ residence was issued at approximately 10:20 p.m. on the night of March 16, 1985. By its terms, it authorized the seizure of no items other than “marijuana and cocaine.” However, during the ensuing execution of the warrant, which commenced at approximately 11:00 p.m. that night and continued for several hours, numerous personal items and financial records were also seized from the residence. The actual contraband discovered and seized consisted of a plastic bag containing approximately five ounces of marijuana, two sifters containing trace amounts of cocaine, and several other items of suspected drug paraphernalia, such as rolling papers, “roach clips,” and a set of scales. Mr. and Mrs. Kelleher and their son were jointly charged with possession of marijuana and cocaine on the basis of these seizures.

On March 17,1985, a GBI agent, still acting pursuant to the electronic surveillance warrant, monitored a telephone call made by Michael Kelleher, Jr., to his residence from the Hall County Jail. This call was answered by an individual named Sherri Rank, to whom Kelleher gave the following instructions: “[G]o out in the greenhouse and clean it out, they probably already found everything, but . . . there’s some garbage in the greenhouse ... if it’s there, just throw it away.” In response to the interception of this phone conversation, several law enforcement officers immediately went out to the Kelleher residence and looked inside the greenhouse, where they observed several trays containing marijuana seedlings.

Later that day, a second warrant was issued for the search of the Kelleher residence, based, ostensibly, on the information contained in the affidavit for the previous warrant, combined with the observations made during the course of the execution of that warrant. The second warrant authorized the seizure of any and all evidence of potential criminal violations, including financial records, address and telephone books, travel documents and various other items, the bulk of which had quite evidently already been seized. In addition, it authorized the seizure of any controlled substances or drug paraphernalia which might still be on the premises. The execution of this warrant resulted in the seizure of 38 marijuana seedlings from the greenhouse along with numerous tomato plants. It was the former evidence which served as the basis for the charge of manufacturing marijuana.

Following lengthy pre-trial proceedings presided over by several different judges, the charges against the Kellehers were ultimately tried before the court without a jury. The two appellants herein were found guilty of all the charges against them. They appeal separately from the denial of their motion for new trial. Held:

1. The appellants enumerate as error the denial of their motion to suppress the contraband seized from their home, contending that the information on which the original search warrant was based did not establish probable cause for a belief that marijuana or cocaine would be discovered there. It is not argued by the state that the judge who issued this warrant was supplied with any information other than that which was contained in GBI agent Wiley’s affidavit. Thus, “the facts recited in the affidavit are determinative of the question.” Lewis v. State, 126 Ga. App. 123, 127 (190 SE2d 123) (1972).

In reviewing an application for a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed.” Illinois v. Gates, 462 U. S. 213, 238-239 (103 SC 2317, 76 LE2d 527, 548) (1983).

Even assuming, for purposes of this appeal, that the information set forth in agent Wiley’s affidavit established probable cause for a belief that the appellants were involved in drug trafficking, we must agree with their contention that it did not establish to a “fair probability” that marijuana or cocaine was currently being stored at their residence. Certainly, there was nothing in the affidavit to suggest that the house was being utilized as a base of operations for the actual distribution of drugs, as was the case in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). Rather, the only information contained in the affidavit which suggested in any way the actual, current presence of marijuana or cocaine on the premises was the averment that Michael Kelleher, Jr., had been overheard on the telephone “talking about smoking and buying marijuana as well as cocaine.” However, in view of the extensive amount of surveillance which had taken place and the noticeable absence of any averment that the younger Kelleher had been overheard making any statement connecting his involvement with these drugs to his parents’ home, we consider this statement too slender a reed to support the issuance of a warrant for the search of the residence.

“Probable cause means less than a certainty but more than mere suspicion or possibility. [Cit.] Mere speculation, rumor, or opinion is not enough; there must be reasonable grounds after inquiry. . . . The officer must place before the magistrate sufficient facts to enable the latter to make his own determination and not merely adopt the conclusions of the police officer.” Yocham v. State, 165 Ga. App. 650, 652 (302 SE2d 390) (1983).

Having concluded that the information contained in Agent Wiley’s affidavit was insufficient in and of itself to establish to a fair probability that marijuana and/or cocaine were currently being stored at the Kelleher residence, we are constrained to hold that the court erred in refusing to suppress the fruits of the original search. Since the affidavit for the issuance of the second search warrant was predicated solely on observations made during the initial search, it follows from our determination that the original search was unlawful that the marijuana plants seized during the course of the second search should also have been suppressed.

2. Appellant Kelleher, Jr., contends that the evidence was insufficient to support any one of his six convictions of using a communications facility to commit, cause, or facilitate a violation of the Controlled Substances Act. See generally OCGA § 16-13-32.3. The state disagrees and additionally contends that these convictions were not, in any event, required to be supported by evidence because they were based on “negotiated verdicts of guilty.”

(a) The concept that a verdict of guilty can be negotiated by a criminal defendant is a novel one to this court, and one which could bear considerable explanation. Regretfully, however, the state has not chosen to enlighten us as to the process by which such negotiations might occur. Rather, the only clarification the state has provided to us in this connection consists of a reference to the written sentences entered on these six convictions. An examination of these documents reveals that each contains the printed statement, “PLEA/VERDICT OF GUILTY/NOLO CONTENDERE NEGOTIATED/NON-NEGOTIATED,” on which the printed words “PLEA,” “NOLO CONTENDERE,” and “NON-NEGOTIATED” have been stricken through, so as to make the statement read: VERDICT OF GUILTY NEGOTIATED.” Suffice it to say that the manner in which these sentencing documents were completed in no way suggests that the appellant conceded his guilt of any of the offenses in question, nor does it otherwise suggest that the appellant waived his right to appellate review of the sufficiency of the evidence introduced in support of these convictions.

(b) Each of the communications facility indictments charged that, on a certain specified date, Michael Kelleher, Jr., did knowingly and intentionally engage in a telephone conversation with a certain named individual, or with certain named individuals, “in order to commit, cause and facilitate” a conspiracy to possess, sell, or distribute marijuana or LSD or both in violation of the Controlled Substances Act. The evidence offered in support of each indictment consisted, in essence, of a transcript of a monitored telephone conversation between the appellant and the other individual or individuals named in the indictment. During each of these conversations, the subject of procuring drugs was discussed through the use of slang terminology. However, in no instance did the state introduce any evidence tending to suggest that any overt act was ever carried out in furtherance of the drug transaction which had been discussed.

Decided February 10, 1988.

Billy L. Spruell, Bobby Lee Cook, Norman Johnson, James F. Wyatt III, for appellants.

C. Andrew Fuller, District Attorney, Michael J. Bowers, Attorney General, George P. Shingler, Assistant Attorney General, for appellee.

For example, the transcript upon which the state relied to prove the offense alleged in indictment No. 85CR61S, reveals merely that the appellant asked the other party to the telephone conversation, “Hey, can you get a half?”; to which the other party responded, “Maybe, I’ll just have to check.” Even assuming that the parties were discussing marijuana, as was alleged in this indictment, this conversation establishes at most the existence of a conspiratorial agreement or understanding. In order to establish the offense of criminal conspiracy, there must also be evidence that one or more of the participants engaged in an “overt act to effect the object of the conspiracy.” OCGA § 16-4-8. See generally Hammock v. Zant, 244 Ga. 863 (262 SE2d 82) (1979).

Because we cannot accept the state’s contention that each of the telephonic discussions in question was sufficient, in and of itself, to establish both the existence of a conspiratorial agreement and the commission of an overt act in furtherance of the object of the conspiracy, and because we have been cited by the state to no evidence from which it could be inferred that any such overt acts were otherwise carried out, we hold that the evidence was insufficient as a matter of law to support a conviction on any one of these indictments.

3. The appellants’ remaining enumerations of error are rendered moot by the foregoing.

Judgments reversed.

Benham, J., concurs. Carley, J., concurs in judgment only.


text:
    75462.
    WILLIAMS v. THE STATE.
    (366 SE2d 200)
   Carley, Judge.

Appellant and his wife were jointly indicted for the offense of burglary. In addition, appellant was indicted as a recidivist. Because appellant’s wife died subsequent to indictment, only appellant was brought to trial before a jury. The jury found appellant guilty and he appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

Appellant took the stand in his own defense. On appellant’s cross-examination, counsel for the State asked: “Isn’t it true sir that your wife told you that she told officers that you went and got her to help cover up and get the rest of the stolen property, isn’t that true sir?” (Emphasis supplied.) Appellant replied: “No sir, not as I can recall.” Thus, appellant’s response indicated that his wife had not told him the specifics of what she may have told the officers. Counsel for the State then asked appellant: “Are you saying [your wife] never said that?” Appellant’s response to this general inquiry was: “I don’t know what [my wife] said. . . .” Defense counsel’s objection to the admission into evidence of any statements attributed to appellant’s deceased wife and co-defendant was overruled by the trial court. Counsel for the State then asked appellant whether he remembered his wife “giving a statement to this officer about helping you, you getting her to help collect the rest of the stolen items. . . .” Appellant responded: “No sir, I’m sure she never gave a statement like that.” On rebuttal, the State sought to introduce a statement which had been given to officers by appellant’s wife and which was inculpatory of appellant. Over appellant’s objection, this inculpatory statement of appellant’s wife was admitted into evidence for the limited purpose of impeaching appellant’s testimony on cross-examination that he was “sure she never gave a statement like that.” The jury was instructed to consider it for the limited purpose of impeachment. On appeal, appellant’s sole enumeration of error is the admission into evidence of his wife’s statement.

As a general principle of constitutional as well as statutory law, the custodial, post-arrest inculpatory statement of one alleged joint offender is not admissible evidence as against another alleged joint offender. See generally Hannah v. State, 144 Ga. App. 677 (242 SE2d 334) (1978). The State urges and the trial court held that the statement of appellant’s deceased wife and co-indictee was admissible as coming within an exception to the general rule. The statement was offered and admitted for the limited purpose of impeaching appellant’s testimony on cross-examination that his wife had “never given” an inculpatory statement to officers. However, it is clear that it was the State, not appellant, that had first introduced the topic of the statement that was given to officers by appellant’s wife and that, from the very outset, appellant undertook to deny his personal knowledge of the specifics of any such statement. It was only after the State had been allowed, over appellant’s objection, to pursue the topic that appellant was ultimately forced to express his disbelief that his wife had made any statement to officers which had inculpated him in the crime. If appellant had no previous personal knowledge of the factual contents of his deceased wife’s statement, he could not be impeached by a showing that the belief he had expressed in his wife’s refusal to inculpate him to the police had been misplaced. “A witness may be impeached by disproving the facts testified to by him.” (Emphasis supplied.) OCGA § 24-9-82.

Decided February 10, 1988.

Dan T. Pressley, Sr., for appellant.

Michael H. Crawford, District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.

If, in his direct examination, appellant had attempted to rely upon his deceased wife’s out-of-court statements, the State should have raised a hearsay objection. The State should not, however, have been allowed to use appellant’s cross-examination as a vehicle by which to introduce the topic of his deceased wife’s statement to the officers and to impeach his personal belief as to the extent to which she had inculpated him. However, from the fact that the statement of appellant’s deceased wife was erroneously admitted it does not necessarily follow that appellant’s conviction must be reversed. “ ‘A constitutional error is harmless, if there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” [Cit.] . . . [Cit.]’ Overwhelming evidence of the defendant’s guilt can negate the possibility that the constitutional error contributed to the conviction. [Cit.]” Vaughn v. State, 248 Ga. 127, 131-132 (2) (281 SE2d 594) (1981). There was evidence presented at the trial of this case to show that the property stolen during the course of the burglary had been found in appellant’s rented trailer, that appellant had attempted to exchange the stolen property for rent, and that appellant had given his own inculpatory statement to the police. In view of this overwhelming evidence of appellant’s guilt, we find that the admission of the statement of his deceased wife and co-indictee did not contribute to the guilty verdict.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75534.
    PORTER v. FRAZIER.
    (366 SE2d 360)
    Decided February 10, 1988.

      G. Conley Ingram, Peter M. Degnan, James L. Eastham, for appellant.

      Albert F. Taylor, Jr., John R. Shaw, Jr., R. Britt Harris, Jr., for appellee.
   Carley, Judge.

The Probate Court of Gwinnett County, having granted appellee’s motion to compel appellant to respond to discovery, also made an award of attorney’s fees in favor of appellee and against appellant. The probate court certified its order for immediate review and appellant’s motion for an interlocutory appeal to this court was granted.

“Appeals may be taken to . . . the Court of Appeals from the . . . judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this State. ...” OCGA § 5-6-34 (a). In granting appellant’s application for an interlocutory appeal, we assumed the underlying applicability of OCGA § 15-9-120 et seq. to this case and concluded that appellant was authorized to invoke the appellate jurisdiction of this court to review an order of the Probate Court of Gwinnett County. However, subsequent to our grant of appellant’s application for an interlocutory appeal, the Supreme Court has held that OCGA § 15-9-120 et seq. is not applicable to this case. “This case raises an interesting jurisdictional question arising from the passage of OCGA § 15-9-120 et seq., effective to all cases filed after July 1, 1986. . . . Notwithstanding some claims [in this case] were filed after the effective date, we view the matter as one case which predates the effective date of the new act. . . . Thus, we hold that jurisdiction of the appeal in this case lies in the Superior Court of Gwinnett County. . . .” (Emphasis in original.) Porter v. Frazier, 257 Ga. 614 (361 SE2d 825) (1987). Since OCGA § 15-9-120 et seq. is not applicable and no other statute confers jurisdiction upon this court to entertain an appeal from an order of the Probate Court of Gwinnett County, it follows that this appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Banke, P. J., and Benham, J., concur.


text:
    76004.
    PORTER v. FRAZIER.
    (366 SE2d 853)
    Decided February 10, 1988.

      G. Conley Ingram, Peter M. Degnan, James L. Eastham, for appellant.

      Albert F. Taylor, Jr., John R. Shaw, Jr., John T. Webb, R. Britt Harris, Jr., for appellee.
   Carley, Judge.

Appellant filed a direct appeal to the Supreme Court from an order of the Probate Court of Gwinnett County. The Supreme Court transferred the appeal to this court. For the reasons discussed in Porter v. Frazier, 257 Ga. 614 (361 SE2d 825) (1987); Porter v. Frazier, 185 Ga. App. 782 (366 SE2d 360) (1988) jurisdiction over this appeal lies not in this court but in the Superior Court of Gwinnett County.

Appeal dismissed.

Banke, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    75195.
    FOSTER & KLEISER, INC. v. JOMAR COATINGS, INC.
    (366 SE2d 852)
    Decided January 14, 1988
    Rehearing dismissed February 12, 1988

      Stanley E. Foster, for appellant.

      Michael S. Pineda, for appellee.
   Beasley, Judge.

The instant appeal is controlled by our decision in Foster & Kleiser, Inc. v. Coe & Payne, 185 Ga. App. 284 (363 SE2d 818) (1987).

Judgment reversed.

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


author: Pope, Judge.

text:
    75202.
    MICHELIN TIRE CORPORATION v. IRVING.
    (366 SE2d 156)
   Pope, Judge.

Plaintiff Thomas Irving was injured in a highway accident when the truck he was driving struck the rear of the eighteen-wheeler in front of him. Plaintiff testified that just prior to the collision he heard a loud noise from the front passenger side of his truck which, in his experience, sounded like the blowout of a tire. Plaintiff claims the collision was caused by a blowout and brought suit against the tire manufacturer alleging negligence, breach of warranty and strict liability for defective manufacture. Defendant manufacturer moved for summary judgment in reliance upon the deposition testimony of the driver of the other vehicle, who rescued plaintiff from the fire which erupted in plaintiff’s truck. The witness testified that the tire in question was inflated when he first commenced his rescue, that he heard an explosion from the vicinity of the tire during the rescue and that the tire blew out after the collision as a result of the fire. The tire, as well as the truck, was entirely consumed in the fire and was not available as physical evidence or for inspection. Defendant’s motion was denied and this court granted its application for interlocutory appeal.

1. The determinative issue presented by this appeal is whether the circumstantial evidence presented by plaintiff’s testimony is sufficient to create an issue of fact for jury determination despite the direct testimony of the witness. Here, the circumstantial evidence consists of plaintiff’s testimony that he heard a loud noise which sounded like a blowout just prior to the collision. The direct evidence consists of the third-party witness’ testimony that the tire in question was not blown out, but was inflated, immediately after the collision. The witness went on to testify that he heard an explosion following the collision and the eruption of the fire from underneath plaintiff’s truck, after which he observed the tire was flat. If the evidence consisted merely of the two statements concerning explosive noises, a jury issue would surely be raised as to whether the blowout occurred before or after the collision. However, the witness testified that he observed the tire inflated after the collision. Thus, the fact that the tire did not blow out prior to the collision is established by direct and positive testimony of an independent third-party witness.

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. “[I]f this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.” Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979). Accord Allen Kane's Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979).

In the case now before us, the “other fact” shown by the plaintiff in opposition to defendant’s motion for summary judgment is simply that he heard a noise which sounded like a blowout prior to the collision. He did not present direct evidence contradicting the witness’ statement that the tire was still inflated after the collision. Plaintiff’s testimony about the noise is simply circumstantial evidence. It creates an inconclusive inference that the tire in fact blew out prior to the collision, which is insufficient to overcome the direct testimony that the tire was still inflated after the collision. The circumstantial evidence concerning the loud noise prior to the collision is not inconsistent with the direct evidence that the tire did not blow out. A loud noise, even though it sounded like a blowout, would not necessarily come from the tire. Therefore, summary judgment should have been granted to defendant.

Decided January 26, 1988

Rehearing denied February 12, 1988

Daryll Love, Hezekiah Sistrunk, Jr., for appellant.

Michael R. Goldberg, for appellee.

On cross-examination of the witness, plaintiff attempted to create an issue of credibility by discrediting his testimony by showing lack of opportunity to observe the tire immediately after the collision. The witness admitted his attention was directed at the emergency of saving plaintiff’s life rather than inspecting the tires for damage. However, he emphatically stated he observed the tire in question when he sprayed the underbody of the truck and the tire itself with a fire extinguisher in an effort to extinguish the fire before the plaintiff was removed from the truck. Thus, the uncontradicted testimony shows the witness did directly observe the tire and his testimony remains unimpeached. Contrary to plaintiff’s argument, after a careful reading of the deposition transcript, we find no confusion over which of the tires is referred to in the witness’ testimony.

2. Because the plaintiff failed to overcome defendant’s motion for summary judgment on the threshold issue of whether the tire blew out prior to the collision, it follows that plaintiff may not recover on his claim for breach of warranty and strict liability. Therefore, we need not address the remaining enumerations of error.

Judgment reversed.

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


text:
    75237.
    PDA, INC. v. HAAS CORPORATION.
    (366 SE2d 169)
   Sognier, Judge.

PDA, Inc. instituted action against The Haas Corporation to recover $17,912.50 as payment for services performed under a contract to provide data processing software. The Haas Corporation answered and counterclaimed for damages incurred because of an alleged failure of consideration. The case was tried without a jury and the trial court entered judgment for PDA in the amount of $5,000 on the main claim, and in favor of PDA and against The Haas Corporation on the counterclaim. PDA appeals.

The common practice of directing counsel for the prevailing party to prepare the judgment for the trial court’s signature, although not reversible error, has been greatly disfavored by this court, as well as by the United States Supreme Court. See, e.g., North Fulton &c. Hosp. v. State Health &c., 168 Ga. App. 801, 810 (3) (310 SE2d 764) (1983); Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100, 101 (2) (235 SE2d 617) (1977); United States v. El Paso Natural Gas Co., 376 U. S. 651, 656-657, fn. 4 (84 SC 1044, 12 LE2d 12) (1964). “ Tt is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose — that of evoking care on the part of the trial judge in ascertaining the facts. For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty . . .’” Pruitt, supra at 101 (2). The reasons for this disfavor have been particularly well illustrated in the case at bar.

The record reveals that at the close of the evidence and after hearing argument of counsel, the trial court deliberated, then announced its decision from the bench awarding appellant $5,000. The trial court found that although a contract existed between the parties after substantial performance under the contract by both parties, there came a point where both parties ceased to operate thereunder. The trial court found that this cessation was permitted under the contract and calculated that appellant was entitled to $5,000 in its claim against appellee.

The trial court thereafter directed appellant, as the prevailing party, to prepare the judgment for the court’s signature. In response to a direct query from appellant’s counsel as to what should be included in the findings of fact, the trial court summarized its findings as stated above and explicitly directed counsel to include those findings in the prepared judgment. The record further reflects, however, that the judgment as drafted by appellant omitted any reference to the trial court’s finding that the parties ceased to operate under the contract. We note that the judgment was dated six months after the hearing at which the trial court’s oral decision was announced.

1. Appellant contends that the written findings of fact demand a judgment in its favor for the full sum sought under the contract and fail to support the lesser sum awarded by the trial court. It is apparent that had the judgment included the trial court’s finding that the parties at one point ceased to operate under the contract, the evidence adduced at trial would have supported fully the award of $5,000 as the value of the work performed by appellant after the parties ceased operating under the contract. However, the omission of the trial court’s finding on this matter results in a judgment which seemingly supports the full sum sought by appellant. Although we acknowledge that the trial court is responsible for the contents of the judgment as signed, see North Fulton &c. Hosp., supra at 810, it is equally well established that a litigant “ ‘cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ [Cits.]” Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726) (1968). Therefore, appellant’s contentions in this regard are not well taken.

Decided January 28, 1988

Rehearing denied February 12, 1988.

James J. Brissette, Elizabeth B. Watson, for appellant.

Michael A. Mogill, Lloyd A. Fox, April Rich, for appellee.

2. Contrary to appellant’s argument, it is apparent that the $5,000 awarded was not a liquidated amount, and thus prejudgment interest would be awardable only at the discretion of the factfinder. Norair Engineering Corp. v. St. Joseph's Hosp., 147 Ga. App. 595, 605-606 (249 SE2d 642) (1978). Because the defenses, setoffs and counterclaims set forth by appellee were not frivolous in nature, and the amount actually due and owing was thus unclear, we find no abuse of the trial court’s discretion in failing to award prejudgment interest to appellant.

Judgment affirmed.

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