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

text:
    77581.
    HANSEN v. WHITE.
    (379 SE2d 536)
   Carley, Chief Judge.

Appellant-plaintiff brought suit against appellee-defendant, seeking damages for personal injuries she allegedly sustained in an automobile collision. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the trial court’s denial of her motion for new trial on the general grounds.

“ ‘The jury verdict has the approval of the trial judge, and after verdict the evidence is to be construed in the light most favorable to the prevailing party and every presumption and inference is in favor of sustaining the verdict. [Cit.] And, if there is any evidence to sustain the verdict of the jury, an appellate court will not disturb it. [Cit.]’ [Cit.]” Nolen v. Murray Indus., 165 Ga. App. 785, 786 (1) (302 SE2d 689) (1983). See also Houston v. Hughes, 172 Ga. App. 638 (324 SE2d 206) (1984). By its return of a general verdict in favor of appellee, the jury necessarily concluded either that appellee was not negligent or that, if he was, appellant did not sustain a serious injury as the result of that negligence. Assuming without deciding that the evidence would demand a finding that appellee was negligent, a review of the trial transcript reveals evidence from which the jury was authorized to find that appellant suffered no recoverable damage as the result of the collision.

There was conflicting testimony with regard to the cause of all of appellant’s alleged injuries except one. Appellant testified that she had “suffered an acute cervical strain” in the collision and this testimony was not directly contradicted. However, appellant’s credibility was drawn into question when, during the trial, she admitted that her earlier answers to interrogatories and responses on oral deposition with regard to her prior medical history were incorrect. “[D]ue to the conflicts in plaintiff’s evidence and the possible impeachment of the plaintiff by the proof of prior conflicting statements and by disproof of essential facts testified to by the plaintiff, the jury was authorized to disregard plaintiff’s testimony. Furthermore, while we are reluctant to speculate as to what inference was drawn from the evidence by the jury, we must note that the evidence authorized conclusions other than those advocated by plaintiff.” McBryde v. Roberts, 160 Ga. App. 416, 417 (287 SE2d 349) (1981). “ ‘Conceding, but without deciding, that the evidence demanded a finding that the defendant was negligent and that this negligence was the proximate cause of the automobile collision, the evidence authorized but did not demand a finding that plaintiff had suffered any [serious] injury attributable to the collision. The jury is the judge of the veracity of parties and witnesses; under the evidence in this record they were authorized to disbelieve plaintiff’s claim of injury as a result of the collision. Accordingly, the judgment for defendant, based upon the verdict of the jury, will not be disturbed.’ [Cits.]” Hiter v. Shelp, 134 Ga. App. 814 (216 SE2d 666) (1975). See also King v. Loyd, 170 Ga. App. 638, 639 (1) (317 SE2d 879) (1984).

Cochran v. Lynch, 126 Ga. App. 866 (192 SE2d 165) (1972) is distinguishable and does not compel a contrary result. “The distinction lies in the fact that in Cochran only the plaintiff and her doctor testified as to the extent of her injuries and their testimony was contradicted by neither testimony nor circumstances. In other words, the evidence there demanded a finding that the plaintiff was injured to some extent; if she was injured the causal chain was unbroken. Here the plaintiff is indeed injured but the question is whether she was injured by the collision. Opposing medical testimony and the intervening time support the negative inferences which the jury must have drawn from the evidence, and this alone is enough to preclude this court from reversing.” (Emphasis in original.) Davis v. McCray, 127 Ga. App. 281, 282 (193 SE2d 200) (1972).

Moreover, Cochran is otherwise inapplicable because it “was decided prior to enactment of the Georgia Motor Vehicle Accident Reparations Act. . . .” Hughes v. Newell, 152 Ga. App. 618, 622 (2) (263 SE2d 505) (1979). Because the evidence clearly authorized the jury to find that the “serious injury” threshold of OCGA § 33-34-9 had not been met, the trial court did not err in denying appellant’s motion for new trial on the general grounds. See Nolen v. Murray Indus., supra; Houston v. Hughes, supra.

2. Appellant enumerates as error the trial court’s refusal “to allow evidence that [a]ppellee had forfeited bond on the traffic charges which arose from the accident in question.”

The record reveals that, for the reasons discussed in Townsend v. Brantley, 163 Ga. App. 899-900 (1) (296 SE2d 186) (1982), the evidentiary ruling of the trial court was not erroneous.

Judgment affirmed.

Birdsong, Sognier, Pope and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Benham, J., dissent.

Deen, Presiding Judge,

dissenting.

The investigating police officer testified that appellee left 38 feet of skid marks prior to the impact, that he was traveling at approximately 35 m.p.h. in a 45-m.p.h. zone, that the weather conditions were good, that appellee knocked the Hansen vehicle approximately 14 feet into the rear of a Dodge van which, in turn, was knocked 13 feet into a Volkswagen. It cost approximately $4,000 to repair the Hansen automobile. Visibility was unobstructed approximately 500 feet before the intersection. Appellant’s husband testified that he was traveling below the speed limit and following a line of traffic when the lead vehicle slowed and stopped to make a turn. His stop was not sudden or unusual, and he had come to a complete stop approximately 15 seconds before his automobile was struck by White’s vehicle. Mr. Hansen also testified that immediately after the accident White apologized to him for the accident and stated that he had taken his eyes off the road to look at a girl get into a sports car in the school parking lot. White testified that there was a commotion on the playground and “there was a woman there,” and that when he looked up “the traffic was stopped” and he applied his brakes as quickly as possible to prevent the accident, but everything happened too fast to stop. He did not offer any defense except to claim that the collision was just “an accident.”

Teresa Hansen testified that she was riding in the front passenger seat and had her seat belt fastened. Her body was twisted in the seat, as she was conversing with the passenger in the rear seat. She claims that she was thrown against the dash by the impact and her right arm was wedged below the armrest. She was transported to the emergency room of a local hospital by ambulance. She was seen by a physician, X-rayed and treated for her bruised and swollen arm. The attending physician testified that she complained mainly of pain in the right side of her neck area and that he did not notice any injury to her right shoulder area. He was of the opinion that she suffered a cervical strain and had some pre-existing cervical spondylitis, an arthritic condition. She was given a tetanus shot and instructed to keep her right arm in a sling for three weeks. On a subsequent visit to the doctor, she complained that she was having a great deal of pain, and he prescribed a physical therapy program which she attended eleven times. She incurred $756.44 in medical expenses. Approximately one month after the collision, she and her husband returned to their home in Connecticut. She continued to have pain and consulted various doctors, including orthopedic specialists, and was eventually diagnosed as having a complete tear of the right rotator cuff tendon. She incurred an additional $1,922.34 in medical bills and $710 for a housecleaning service for work that she claimed that she was unable to perform. There was also testimony as to the restrictions that were placed upon her social life as a result of her injury.

In returning a verdict for the defendant, a jury could have concluded only that the defendant was not negligent or that appellant did not sustain serious injury resulting from the defendant’s negligence.

OCGA § 40-6-49 provides: “(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” Under subsection (d): “Vehicles which approach from the rear any other vehicle or vehicles stopped or slowed to make a lawful turn shall be deemed to be following for purposes of this Code section.”

“Following too closely, without due regard for the speed of vehicles ahead and the traffic on and condition of the highway, is a violation of the Georgia motor vehicle laws. . . . Forehand v. Pace, 146 Ga. App. 682 (247 SE2d 192) (1978). ‘If, considering all the surroundings and accompanying circumstances an event is such “as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and place upon the defendant the burden of explaining the cause of the occurrence.” ’ McCann v. Lindsey, 109 Ga. App. 104 (135 SE2d 519) (1964).” Wallace v. Yarbrough, 155 Ga. App. 184, 186 (270 SE2d 357) (1980).

A jury decides issues as to due care and whether it was exercised except when reasonable minds may not differ. Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983). In the instant case, reasonable minds could not differ. There were no weather problems on the day in question, and the defendant had a clear unobstructed view of the road and the traffic ahead of him. He admitted that he allowed himself to be distracted and when he looked back at the road, he could not stop his automobile in time to avoid a collision with the rear of the Hansen vehicle. As in Todd v. City of Brunswick, 175 Ga. App. 562 (334 SE2d 1) (1985), the defendant claimed the collision was just an accident, but there was no evidence presented at trial to support an inference that an emergency arose or that any out-of-the-ordinary acts by the plaintiff or third parties contributed to the collision. In cases involving rear-end collisions where there is no dispute as to the facts, it amounts to a confession of liability as a matter of law. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25) (1976); Nail v. Green, 147 Ga. App. 660 (249 SE2d 666) (1978). “The driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic, and he must maintain a diligent lookout therefor.” Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469) (1961).

As reasonable minds could not disagree that the defendant was negligent because he did not show any legal reason or excuse for failing to avoid the collision, I will next consider whether there was any evidence to support the jury verdict of non-liability for the plaintiff’s injuries because she did not sustain a serious injury.

On appeal, appellant concedes that some dispute may exist as to the causal relationship between the automobile collision and her right rotator cuff tear, which was not diagnosed for approximately five months after the accident, and the conflicting expert testimony as to the length of time that this injury had existed. She argues, however, that the same statement cannot be made about her neck injury. I would agree.

The evidence at trial was uncontroverted that Mrs. Hansen suffered an acute cervical strain in the accident and that, while she had experienced numerous medical problems in the past, none of them involved her neck. After the collision she was immediately transported to the emergency room of the hospital for care and received treatment for her injuries. The attending physician’s testimony indicated that she was treated only for a neck injury, and the evidence further shows that she had complaints of pain in her neck from the time of the collision until her final visit to him some thirty days after the accident.

While “a jury is not bound to accept and credit the testimony of a witness who is a party to the litigation . . . and ... a fact-finding body ... is not bound to accept and credit the testimony of an expert, such as a physician . . . , positive and direct testimony of an unimpeached witness cannot be arbitrarily rejected by a jury. [Cits.]” Cochran v. Lynch, 126 Ga. App. 866, 867 (192 SE2d 165) (1972). As in Cochran, the plaintiff testified that she was injured and suffered. “ ‘The law infers bodily pain and suffering from personal injury ....’” Dodson v. Cobb, 92 Ga. App. 654, 655 (89 SE2d 552) (1955).

The evidence also showed that appellant met the “serious injury” threshold for recovery as required under OCGA §§ 33-34-9; 33-34-2 (13), because the evidence was uncontroverted that she incurred medical expenses in excess of $500 for treatment of injuries directly related to the collision.

As there was no evidence to support the jury verdict, the trial court erred in denying appellant’s motion for a new trial.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Banke, and Judge Benham join in this dissent.

Decided February 13, 1989

Rehearing denied March 6, 1989

Samuel W. Oates, Jr., for appellant.

Richard A. Marchetti, for appellee.


source: Caselaw Access Project

author: Birdsong, Judge. Beasley, Judge,

license: Public Domain

text:
    77790.
    THOMASON v. TIMES-JOURNAL, INC.
    (379 SE2d 551)
   Birdsong, Judge.

This is an appeal to the order of the superior court granting appellee’s motion for summary judgment.

On October 23, 1983, appellee published an obituary regarding appellant. Appellant, a Caucasian female, in fact was alive at the time the notice was published and circulated. The obituary read in pertinent part as follows: “Paulette Thomason, 38, of Vinings died Monday. Services will be at 1 p.m. Thursday at Cascade Hill Funeral Home in Atlanta. . . . Survivors include his father, S. Paul Thomason . . . two sisters . . . one brother . . . three sons . . . several nieces and nephews. . . . Cascade Hill Funeral Home of Atlanta is in charge of arrangements.” That night a reporter for appellee discovered that the obituary was false. The next day, appellee published the following retraction: “A funeral notice was run in error Wednesday for a Vinings woman named Paulette Thomason. The Journal learned after deadline that the obituary notice was false.”

Appellant commenced suit alleging in Count 1 that publication of the false obituary constituted “a libel and a slander”; alleging in Count 2 that the reckless publication of the obituary made with total indifference “was negligent and a malpractice on the part of [appellee] newspaper”; and, in Count 3 alleging that this publication “was an invasion” of appellant’s “right to privacy.” Held:

1. Appellant enumerates as her first error that the trial court erred in granting appellee’s motion for summary judgment as to Count 1.

An essential element of libel is that some type of defamatory statement must have been published. See generally OCGA § 51-5-1. As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. Morrison v. Hayes, 176 Ga. App. 128 (1) (335 SE2d 596). However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge. The trial judge should read and construe the publication as a whole, and thereafter “ ‘ “may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury.” ’ ” Id. In the case sub judice, the trial court concluded as a matter of law that the publication of the false obituary was not libelous. We agree.

In Georgia, a false and malicious defamatory statement to constitute a libel also must tend “to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1. It is generally recognized that “[i]n the absence of special circumstances which add another meaning to the words, it is not defamatory to say that a person is dead.” Prosser & Keeton on Torts (5th ed.), Defamation § 111, p. 774; see 50 AmJur2d, Libel & Slander, § 85. Thus, absent special circumstances, the publication of a false report of death, such as a false obituary, is not libelous per se, and it is not defamatory to say therein that a person is dead. O’Neil v. Edmonds, 157 FSupp. 649 (E.D. Va. 1958); Cardiff v. Brooklyn Eagle, 190 Misc. 730 (75 NYS2d 222); see also Street v. Nat. Broadcasting Co., 512 FSupp. 398, 406, n. 4 (E.D. Tenn. 1977).

However, as a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. See Garland v. State, 211 Ga. 44, 46 (84 SE2d 9). In doing so, the courts “will not hunt for a strained construction in order to hold the words used as being defamatory.” Id. In considering whether a writing is defamatory as a matter of law, any relevant extrinsic circumstances will be considered, because “[a] statement may . . . carry a defamatory meaning only by reason of extrinsic fact or circumstances by use of innuendo, inducement and colloquium.” Walters v. Linhof, 559 FSupp. 1231, 1236 (12) (D. Colo. 1983). Moreover, “we will not look at the evidence of what the extrinsic circumstances were at the time indicated in the writing, but at what construction would be placed upon it by the average reader.” Macon Tel. Pub. Co. v. Elliott, 165 Ga. App. 719 (1) (302 SE2d 692), U. S. cert. den. 466 U. S. 971.

Appellant asserts that the published obituary was defamatory, because, in addition to falsely proclaiming her dead, it also falsely stated her sex and age, it omitted any reference to the existence of her surviving mother, thereby broadcasting certain negative connotations as to family relationships, and it implied that she was “to have funeral customs of a black funeral home.” We disagree.

The approximate one year discrepancy in appellant’s age and the erroneous use, on one occasion, of the pronoun “his” in the published obituary are in the totality of the circumstances minor in nature. In this regard, the law has historically declined to take notice of very small or trifling matters. Accordingly, we find that such discrepancies do not give rise to any “special circumstances” warranting departure from the general rule that it is not defamatory to publish a false death notice.

The mere failure of appellee to list appellant’s mother in the obituary as a survivor, likewise, does not warrant a departure from the general rule, as this failure to list does not provide any basis for a libel action. Usually, “ ‘an omission of information from a statement admittedly published will not support an action for libel.’ ” Jim Walter Homes v. Strickland, 185 Ga. App. 306, 309 (1) (363 SE2d 834); Comer v. Nat. Bank of Ga., 184 Ga. App. 867 (2) (363 SE2d 153).

Further, like the trial judge, we are not persuaded by appellant’s assertions and argument that “special circumstances” exist in this case, because the funeral home listed in the obituary “has primarily black clientel [sic],” her family “is white,” and she has been “ridiculed and held in contempt” because the funeral home “serves primarily black people whose customs at death are different than whites.” Appellee responds to this indecorous argument, in part, by quoting a passage from Palmore v. Sidoti, 466 U. S. 429 (104 SC 1879, 80 LE2d 421) (child custody case), the tenor of which is: “It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. . . . The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Id. at 433. Suffice it to say that any conduct attributed to appellant or her next of kin regarding the selection of a funeral home was lawful conduct. “It is not libelous to charge a person with the doing of a thing which he may legally and properly do,” Garland v. State, 211 Ga., supra at 48, and in any event mere “[peculiarities of taste found in eccentric groups cannot form basis for finding of libelous inferences.” Fairley v. Peekskill Star Corp., 83 AD2d 294 (445 NYS2d 156 (2)) (1981). Also, the record in this case is entirely silent as to what so-called “customs at death” would be practiced by one racial group that would not be observed by the other. We will not speculate regarding this evidentiary deficiency. Accordingly, we find these assertions of error to be without merit.

2. Appellant’s second enumeration of error is that the trial court erred in granting appellee’s motion for summary judgment as to Count 2 of the complaint.

Although Count 2 of the complaint avers both negligence and malpractice on the part of appellee newspaper, appellant only asserts on appeal that Count 2 alleges “negligent publication of libel.” As no citations of authority or argument are proferred in appellant’s brief to support an averment of malpractice, we will treat this particular issue as having been abandoned. Rule 15 (c) (2); Hazlett &c. Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25 (1) (351 SE2d 218).

For reasons discussed in Division 1, above, we find that the obituary is not defamatory. Accordingly, we find this enumeration of error also without merit.

3. Appellant asserts in her brief that plaintiff is entitled to present the issue of punitive damages to a jury. This assertion was not made the basis of an enumeration of error, and the existing enumerations of error “cannot be enlarged to include issues not made therein.” Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155 (2) (308 SE2d 382).

4. Appellant asserts that the trial court erred in granting a motion for summary judgment as to invasion of privacy, Count 3 of the complaint.

In Georgia, invasion of privacy “is in reality a complex of four loosely related torts.” Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496). In her brief, appellant argues and provides citations of authority regarding the invasion of privacy tort of “false light” publicity. Accordingly, we consider any issue regarding the other three disparate invasion of privacy torts as having not been asserted on appeal. See, e.g., Hazlett, supra; Melton, supra.

Our appellate courts have adopted a pragmatic approach in deciding the extent to which an individual’s right to privacy should be protected. The right of privacy is qualified by the rights of others; it is not absolute. Thus, we recognize that “ ‘ “ ‘[t]here are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.’ ” ’ ” Elmore v. Atlantic Zayre, 178 Ga. App. 25, 27 (341 SE2d 905).

It is well-recognized that an essential element of the “false light” tort of invasion of privacy is that “the false light in which the other was placed would be highly offensive to a reasonable person,” Restatement of Torts 2d, § 652E (a), and “the hypersensitive individual will not be protected.” Prosser & Keeton, supra, § 117 at 864. We conclude that this is the rule in Georgia as well. In Cabaniss v. Hipsley, supra at 372, this court held one of the elements of the “[p]ublic disclosure of embarrassing private facts” tort of invasion of privacy is that “the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.” This court then adopted the Prosser view that “false light” cases differ from “public disclosure” cases primarily “in that one involves truth and the other lies, one private or secret facts and the other invention.” Id. at 375. It thus is clear that the “offensiveness” element is common to both of these invasion of privacy torts. Id.; see Williams v. Church’s Fried Chicken, 158 Ga. App. 26 (5) (279 SE2d 465); see also Davis v. Gen. Fin. &c. Corp., 80 Ga. App. 708 (4) (57 SE2d 225).

We agree with the trial court’s conclusion that as a matter of law publication of the obituary, when viewed in its totality, would not be offensive and objectionable to a reasonable person of ordinary sensitivities.

Appellant’s other enumeration of error and assertions also are without merit.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 3 and 4 but not entirely in Division 2.

Count 2 did not allege “negligent publication of libel” as such which, I agree, would fail as a matter of law if, as here, the publication was not libelous. That count alleged merely that the publication was false and was made recklessly, with a total indifference to the consequences, without verification of its truth, and without exercising ordinary standards “of common sense,” apparently meaning the ordinary standard of care as set out in OCGA § 51-1-2.

Thus, Count 2 was brought under the general tort statutes, OCGA §§ 51-1-1 and 51-1-6. See also OCGA § 51-1-8. Whether a claim would lie for negligent publication by a newspaper of a false statement about a private person which is not libelous, however, is not before us. That is because plaintiff has not pursued that question. She has narrowed her claim of simple negligence by asserting that it relates to “negligent publication of libel,” both in her enumeration of error and in the summary judgment documents she submitted to the trial court. This is confirmed by the cases on which she relies, Triangle Publications v. Chumley, 253 Ga. 179 (317 SE2d 534) (1984), and Diamond v. American Family Corp., 186 Ga. App. 681, 682 (1) (368 SE2d 350) (1988).

It is not disputed that the statement was untrue, and defendant’s admission that it has a duty to publish truth is evidenced by the next-day correction. Ordinarily, breach of a legal duty which proximately causes damages is actionable. OCGA § 51-1-6. But we cannot enlarge appellant’s enumeration. Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (3) (308 SE2d 382) (1983). Nor can we rule on a point where no ruling was solicited from, or made by, the trial court. Ga. Retail Assn. v. Ga. Public Svc. Comm., 165 Ga. App. 208, 209 (300 SE2d 544) (1983).

Having concluded that the publishing of an obituary when the person is alive is not libelous, negligent publication of what plaintiff insists is libel disintegrates as a cause of action.

Decided February 15, 1989

Rehearing denied March 6, 1989

Adele Grubbs, for appellant.

Roy E. Barnes, Albert G. Norman, Jr., Bruce P. Brown, for appellee.

       Pleadings are to be liberally construed. OCGA § 9-11-8 (f); Plank v. Bourdon, 173 Ga. App. 391, 393 (1) (326 SE2d 571) (1985).


author: Carley, Chief Judge.

text:
    77791.
    THE STATE v. SUTHERLAND.
    (379 SE2d 580)
   Carley, Chief Judge.

Appellee-defendant is a member of the Board of Commissioners of Gordon County (Board). In September of 1987, the District Attorney of Gordon County, Darrell Wilson, filed a civil action against the Board. Mr. Wilson’s action sought to enjoin the Board’s implementation of its 1988 budget which called for a reduction in funds for the district attorney’s office. In the complaint, Mr. Wilson alleged that appellee had a “personal vendetta” against the district attorney’s office and that appellee had persuaded other members of the Board to reduce the budget for the district attorney’s office.

On June 3, 1988, the Grand Jury of Gordon County returned an indictment charging appellee with four counts of attempted embracery. On June 10, 1988, the grand jury returned another indictment charging appellee with one count of attempted embracery and three counts of embracery. Both criminal indictments were prepared and presented by Mickey Thacker, the Chief Assistant District Attorney for Gordon County. Appellee then filed a motion to quash the two indictments, on the ground that Mr. Wilson and all members of his staff were disqualified from initiation of and participation in a criminal prosecution against him. After the trial court conducted a hearing on appellee’s motion, it entered an order which noted that, “[s]ince the District Attorney[, Mr. Wilson,] voluntarily excused himself from the handling of these cases the only question is whether it was improper for Chief Assistant District Attorney Thacker to present the cases.” Because Mr. Thacker had testified in the hearing that his salary would be reduced by the Board’s proposed budget, the trial court found that Mr. Thacker had a financial interest in the outcome of the civil action filed by Mr. Wilson against the Board and that Mr. Thacker was, therefore, disqualified from any participation in the criminal cases against appellee. The State appeals from the order of the trial court quashing the indictments against appellee on the ground of Mr. Thacker’s disqualification.

Any disqualification of Mr. Wilson from participation in the prosecution of appellee would not automatically disqualify all members of his staff. See Frazier v. State, 257 Ga. 690, 693 (9) (362 SE2d 351) (1987). Accordingly, the issue presented for determination is whether Mr. Thacker was himself shown to be disqualified from participation in the prosecution of appellee. “Disqualified from interest” “means a ‘personal interest,’ and ... a solicitor is not disqualified by personal interest in a case where he ‘was not acting in his personal or individual character, or for his personal or individual interest, but in his character as an officer of the law specially charged by statute to perform this particular duty.’ [Cits.]” Scott v. State, 53 Ga. App. 61, 68 (3) (185 SE 131) (1935). See also State v. Davis, 159 Ga. App. 537, 538 (2) (284 SE2d 51) (1981). Mr. Thacker may have an interest in the outcome of the civil action that Mr. Wilson filed against the Board. The relevant question is, however, whether he has a disqualifying personal interest in the criminal prosecution of appellee. The criminal charges which have been lodged against appellee have no factual connection whatsoever to the civil action against the Board and the outcome in neither proceeding would in any way have an effect upon the other. Compare Nichols v. State, 17 Ga. App. 593 (1) (87 SE 817) (1916). There is no suggestion that, as the result of the civil action that was filed against all of the members of the Board in their official capacities, Mr. Thacker has gained access to information which can be used in the criminal prosecution against appellee in his individual capacity. Compare Lane v. State, 238 Ga. 407, 408 (4) (233 SE2d 375) (1977); Conley v. Arnold, 93 Ga. 823, 824 (1) (20 SE 762) (1894); Davenport v. State, 157 Ga. App. 704 (278 SE2d 440) (1981). “ ‘The administration of the law, and especially that of the criminal law, should, like Caesar’s wife, be above suspicion, and should be free from all temptation, bias, or prejudice, so far as it is possible for our courts to accomplish it. . . .’ [Cit.]” Davenport v. State, supra at 705-706 (1). However, the mere filing of Mr. Wilson’s civil action against the members of the Board in their official capacities is no basis for affording appellee complete immunity from prosecution by any and all of Mr. Wilson’s employees for such unrelated crimes as appellee allegedly committed in Gordon County in his individual capacity. Mr. Wilson’s civil action is entirely separate from appellee’s criminal prosecution and, assuming that Mr. Thacker is a partisan, he has not been shown to be such a partisan as would disqualify him from proceeding with the prosecution of appellee. “ ‘While the prosecuting officer should see that no unfair advantage is taken of the accused, yet he is not a judicial officer. Those who are required to exercise judicial functions in the case are the judge and jury. The public prosecutor is necessarily a partisan in the case. If he were compelled to proceed with the same circumspection as the judge and jury, there would be an end to the conviction of criminals.’ ” Scott v. State, supra at 67 (3). The record shows nothing to suggest that, in his handling of the prosecution of appellee, Mr. Thacker was “acting in his personal or individual character, or for his personal or individual interest, but in his character as an officer of the law specially charged by statute to perform this particular duty. He was not employed by any private person to prosecute, and his acts in connection with the instant case were ‘not with a view to the interest of any client, but alone to sub-serve public justice.’ ” Pinkney v. State, 22 Ga. App. 105, 109 (95 SE 539) (1918). The trial court erred in granting appellee’s motion to quash the indictments on the ground of Mr. Thacker’s disqualification.

Decided February 22, 1989

Rehearing denied March 6, 1989

Mickey R. Thacker, Assistant District Attorney, for appellant.

William W. Keith III, for appellee.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    77891.
    O’QUINN v. SOUTHEAST RADIO CORPORATION.
    (380 SE2d 487)
   Birdsong, Judge.

Appellant/defendant, Barnie O’Quinn, Jr., appeals the ruling of the trial court granting appellee/plaintiff’s motion for summary judgment.

Appellee, Southeast Radio Corporation, filed a proceeding in the Superior Court of Jeff Davis County to enforce a Florida judgment under the provisions of OCGA § 9-12-130. Appellant asserted various defenses, including a claim that he was not personally served with process in the Florida suit.

Appellee filed a motion for summary judgment with supporting affidavits on June 11, 1987. On July 29, 1987, 48 days later, appellant filed a certain counter-affidavit contesting this issue of service. Another counter-affidavit executed by a deputy sheriff was filed by appellant on August 20, 1987. On August 24, 1987, appellee filed an amendment to its motion for summary judgment. An additional counter-affidavit executed by the deputy sheriff was filed by appellant on September 9, 1987. Hearing was held on the motion for summary judgment on February 15, 1988. Appellant has never filed in response to the motion for summary judgment “a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried,” in accordance with the provisions of Rule 6.5, Uniform Superior Court Rules. Appellee moved to strike the appellant’s affidavits on the grounds that they were untimely and failed to comply with Rules 6.2 and 6.5. The trial court did not expressly rule on the motion to strike, but subsequently granted appellee’s motion for summary judgment.

Appellant’s sole enumeration of error is that the trial court erred in granting summary judgment in total. Held:

1. Appellee initially relied upon West v. Nodvin, 183 Ga. App. 645 (359 SE2d 729) in support of its motion to strike. We find West to be distinguishable from the facts of this case. Appellee now asserts that West and our recent case of Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64 (374 SE2d 785) appear to be in conflict, but concedes that Wyse is necessarily controlling. In Wyse we held that the 30-day provisions of Rule 6.2 of both the Uniform State and Superior Court Rules were in apparent conflict with the Civil Practice Act. See generally OCGA § 9-11-56 (c) and (d). We further held that “[although OCGA § 9-11-56 (c) does not require that a hearing be set on a motion for summary judgment where none is requested, [cit.], it unambiguously permits the respondent to serve opposing affidavits at any time ‘prior to the date of the hearing’in the event that a hearing is set. To the extent the requirements of Uniform Rule 6.2 conflict with this statutory provision, the rule must yield.” Id. at 65. Accordingly, appellant had the statutory right to serve opposing affidavits at any time prior to February 15, 1988, the date the hearing on the motion for summary judgment was held, and the appellee so concedes in its supplemental brief.

However, appellee further asserts that the trial court was correct in granting the motion for summary judgment because of the failure of appellant to comply with Rule 6.5. We disagree. The provisions of Rule 6.5 are not in apparent conflict with the Civil Practice Act. West, supra at 656. Nevertheless, in Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595 (370 SE2d 843), this court opined that a failure to comply with Rules 6.2 and 6.5 does “not entitle [a party] automatically to receive favorable consideration of his motion [for summary judgment]. Rather, it results in the appellants losing a very valuable opportunity to persuade the trial court in their favor.” Appellee contends that unless the extreme remedy of striking appellant’s affidavits is invoked, Rule 6.5 will be rendered meaningless. This argument is incorrect. The trial court has other means of enforcing the Uniform Rules for the Superior Courts without being compelled to strike relevant evidence. See, e.g., OCGA §§ 15-1-3 (3); 15-1-4 (a) (3); 15-6-8 (6). In this instance, the trial court did not expressly rule upon appellee’s motion to strike, and the affidavits in question have not otherwise been deleted from the record. We decline to speculate whether the trial court intended its order granting summary judgment to also dispose of appellant’s motion to strike. Suffice it to say that denial of the motion to strike would be compatible with the statutory principle that “[t]he object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. Moreover, this court is a court for the correction of errors and our decision must be based on the authenticated record before us. See Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510) (1989). The record in this case contains the affidavits in question and does not contain any order to strike them therefrom. Further, appellant’s failure to comply with Rule 6.5 did not result in any confusion or disadvantage to the appellee in asserting its motion for summary judgment, as the appellee’s motion for summary judgment, as supplemented by its brief in support thereof, “contained a clear and concise statement of the relevant contentions” and the appellant’s affidavits on their face reflected that a genuine issue of fact existed as to service of process in the Florida suit. See McKnight v. Golden Isles Marina, 186 Ga. App. 228 (1) (366 SE2d 830); Martin v. Wilson, 184 Ga. App. 196 (2) (361 SE2d 209). Although appellant has failed to comply with Rule 6.5, such error of procedure would be harmless, as in this instance it would not affect the substantial rights of appellee, OCGA § 9-11-61, and accordingly, the severe sanction of striking the affidavits would not be mandated.

Decided March 6, 1989.

Luman C. Earle, for appellant.

2. “ ‘(O)n summary judgment, the movant has the burden of showing “there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” ... In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.’ ” Moore, supra at 595-596. Applying these summary judgment rules to the facts of record in the case sub judice, we find that the trial court erred in granting appellee’s motion for summary judgment in toto, as a genuine issue of fact exists concerning the service of process in the Florida suit.

Appellee invites this court to grant a partial summary judgment on all issues except the question of service should we decide that the grant of summary judgment was error. We decline this suggestion. The trial court is in the best position to make any further rulings that may be necessary under the Civil Practice Act consistent with sound principles of justice and fundamental fairness.

Judgment reversed.

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

Jerry W. Caldwell, Jonathan D. Sprague, for appellee.


author: Pope, Judge.

text:
    77900.
    GOULD v. THE STATE.
    (381 SE2d 442)
    Decided March 6, 1989.

      Charles J. Reich, for appellant.

      Robert E. Keller, District Attorney, Lisa A. Curia, Assistant District Attorney, for appellee.
   Pope, Judge.

Appellant’s sole enumeration of error is that the trial court failed to comply with the requirements of OCGA §§ 17-14-8 through 17-14-10 in ordering restitution in this case. Specifically, he argues that the trial court failed to make written findings as required by OCGA § 17-14-8 and did not expressly address the factors set forth in OCGA § 17-14-10. The State concedes that the record is “arguably incomplete,” but contends that the record of sentencing immediately after trial shows “substantial compliance” with the statute’s intent.

We find this situation to be controlled by Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (1985). “[W]e are persuaded that this case must be remanded to the trial court for preparation of written findings of fact related to the factors in OCGA § 17-14-10. Common sense dictates that the only way it can be assured that the Code requirements are complied withr and to test compliance, is for a record to be made. As the record does not show totally what information the court had before it, it may be that the information was sufficient to allow a consideration of the required factors. If not, another hearing will be necessary. The trial judge is the best judge of that.” (Indention and citation omitted.) Id. at 403. Accord Baker v. State, 183 Ga. App. 100 (357 SE2d 896) (1987).

Judgment vacated and case remanded.

McMurray, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    77125.
    MURRAY COUNTY BOARD OF EDUCATION et al. v. WILBANKS.
    (379 SE2d 559)
   Sognier, Judge.

The Superior Court of Murray County reversed an award issued by the State Board of Workers’ Compensation (the Board) in favor of the Murray County Board of Education (the County) and its insurer, Aetna Casualty & Surety Company, and we granted their application for a discretionary appeal.

Lena M. Wilbanks, appellee, who was injured in a work-related accident while employed by the County, filed a claim for workers’ compensation benefits. After receiving an award in her favor, appellee sought reimbursement from the County for medical expenses previously paid by her group insurance carriers, but appellants responded by paying the health service providers directly rather than paying appellee. The administrative law judge’s subsequent award, which provided that appellants were entitled to a credit for all medical expense payments they had made “to the group insurance carriers which have previously paid medical expenses for the claimant’s treatment,” was made the award of the Board. The superior court reversed the award, holding that appellee was entitled to receive direct compensation for medical expenses and that appellants were not entitled to a credit for previous payments.

1. Appellants enumerate as error the superior court’s order that they compensate appellee for the medical expenses they previously paid directly to the providers on the ground that those payments discharged their obligation to appellee. We do not agree. Appellants’ responsibilities under the first award, under which medical benefits were awarded to appellee, were not absolved by their payments to the providers, as payments for medical benefits should be made directly to the claimant. St. Paul Fire &c. Co. v. Norman, 173 Ga. App. 198, 202 (4) (325 SE2d 810) (1984); see generally OCGA § 34-9-200 (a). Appellants cannot discharge their obligations by making payments in a manner not contemplated or authorized by the Workers’ Compensation Act. Accordingly, we find the superior court did not err by concluding as a matter of law that appellants were not entitled to a credit for previous payments. See generally Brannon v. Ga. Bureau of Investigation, 146 Ga. App. 524 (246 SE2d 511) (1978).

2. Appellants also contend appellee is not entitled to compensation because there is no evidence her medical expenses were paid by her group insurance carriers. However, the record clearly discloses that the medical expenses for which appellee sought reimbursement previously had been paid by her group insurance carriers, and that appellants had notice of that fact prior to their payments to the providers. Moreover, evidence of payment of appellee’ medical expenses by group health insurance carriers is irrelevant, as such payments do not affect or limit appellants' liability for workers’ compensation benefits. Pacific Indem. Co. v. Moorman, 122 Ga. App. 881-882 (2) (179 SE2d 103) (1970).

Decided February 16, 1989

Rehearing denied March 7, 1989

Kinney, Kemp, Pickell, Sponcler & Joiner, Henry C. Tharpe, Jr., Cone & Shivers, Donald M. Shivers, for appellants.

J. Michael Brown, for appellee.

3. Appellants also enumerate as error the superior court’s finding that appellants “[were] not entitled to take credit for payment of medical expenses directly paid to the group insurance carriers” on the ground that there is no evidence to support a finding of payment by appellants to the group carriers. While we recognize that both the superior court and the administrative law judge erroneously referred to payments made by appellants to the group carriers rather than to the providers, a misstatement of significant testimony is a ground for remand to the Board only “where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.” (Citations and punctuation omitted.) Chevrolet-Pontiac-Canada Group v. Millar, 182 Ga. App. 889 (1) (357 SE2d 598) (1987). We find the factual misstatement insignificant here because the decisions of both the Board and the superior court turned on the question of whether appellants were entitled to receive a credit for payments made to someone other than appellee, and thus the identity of the actual recipient of appellants’ payments had no material bearing on the ultimate validity of the superior court’s ruling. See generally Millar, supra.

Judgment affirmed.

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

       We note that OCGA § 34-9-206 (Ga. L. 1985, p. 727, §§ 6, 12) sets forth a procedure by which group insurance carriers may obtain reimbursement for payments made on behalf of an insured who subsequently becomes entitled to workers’ compensation benefits, but this statute, which became effective on July 1, 1985, was not in effect at the time of appellee’s injury on April 9, 1985, and thus the group carriers in question did not follow the procedure for becoming parties at interest as provided in OCGA § 34-9-206 (a).


author: Beasley, Judge.

text:
    77493.
    BIOSPHERE INDUSTRIES, INC. et al. v. OXFORD CHEMICALS, INC. et al.
    (379 SE2d 555)
   Beasley, Judge.

Oxford Chemicals and its president Tremonti sued Biosphere Industries, Barkas, and Katz, alleging violations of a restrictive covenant not to compete. With his answer, Barkas filed a counterclaim asserting that the action had been instituted with malice and for the wrongful purpose of interfering with his right to conduct his business, for which he sought lost profits, vindictive damages, attorney fees and expenses. Biosphere and Katz moved for summary judgment, to which Oxford and Tremonti responded, and which the court denied. At the close of the plaintiffs’ evidence at trial, the three defendants moved for directed verdict, which was denied. A week later the jury returned a verdict in favor of defendants on the claim and in favor of plaintiffs on Barkas’ counterclaim.

Appellants Biosphere and Katz then filed the instant action against Oxford and Tremonti, based on the alleged malicious use of process. After the Supreme Court rendered its decision in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), a count for abusive litigation in accordance with Yost was added. Appellees, advancing three theories precluding recovery, moved for summary judgment, which was granted without explanation after a hearing. Biosphere and Katz appeal.

The thrust of appellants’ claim against appellees was that their underlying action was initiated without “probable cause” to believe that the facts alleged were true. By denying appellants’ motion for summary judgment and for directed verdict, the trial court in essence ruled that material issues of fact were presented for jury resolution.

In Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), the Supreme Court considered “whether a judicial determination of probable cause made in the course of a criminal prosecution can establish, as a matter of law and for purposes of summary judgment, the existence of probable cause in a civil action for malicious prosecution.” At the criminal trial the motion by defense counsel for directed verdict of acquittal at the close of the State’s case was denied. The Supreme Court concluded that “when the trial judge rules that evidence is sufficient as a matter of law to support a conviction (that is, sufficient to enable a rational trier of fact to find each and every element of the guilt of the accused beyond a reasonable doubt), we can see no reason why such a holding — unreversed and in the absence of fraud and corruption — should not suffice as to the existence of probable cause.” Id. at 761. Thus the denial of a motion for directed verdict of acquittal was held to constitute a “binding determination of the existence of probable cause.” Id. Accord Allen v. Montgomery Ward & Co., 186 Ga. App. 337 (367 SE2d 120) (1988); Griffin v. Ga. Power Co., 186 Ga. App. 565 (367 SE2d 832) (1988); Warren v. Akins, 188 Ga. App. 602 (373 SE2d 802) (1988).

The instant action is sufficiently analogous to be controlled by Monroe and the cases applying it. The rulings of the trial court in denying both summary judgment and directed verdict in the underlying case, which required submission of the case to the jury, were equally sufficient to constitute “a binding determination” that their civil action against appellants did not lack substantial justification so as to render it frivolous, groundless or vexatious. As in Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 796-797 (4) (359 SE2d 920) (1987), so here: “We need not delay a final adjudication on this matter because as a matter of law it reasonably could be believed that a court would accept the asserted claim. That being true, summary judgment was properly granted in [appellees’] favor. [Cits.]”

Decided February 15, 1989

Rehearing denied March 7, 1989

Weinstock, Scavo & Montalto, Michael Weinstock, J. Patrick McCrary, Stephen M. Katz, for appellants.

Hey man & Sizemore, William H. Major, William B. Brown, for appellees.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    77537, 77538.
    EWALD v. SECURITY PACIFIC CREDIT CORPORATION; and vice versa.
    (379 SE2d 569)
   McMurray, Presiding Judge.

Security Pacific Credit Corporation (plaintiff) brought an action against Jeffrey Louis Ewald (defendant) and alleged that defendant breached a “Vehicle Lease Agreement” which was assigned to plaintiff by Reserve Rent-A-Car & Leasing, Inc. (Reserve). Plaintiff sought $12,549.65 and attorney fees as a result of the alleged breach of contract. Defendant answered and admitted that he was a “co-lessee on a Lease Agreement” with Reserve, but denied the remaining material allegations of the complaint and counterclaimed, seeking “recoupment against plaintiff’s claim” because plaintiff allegedly “failed to comply with obligations arising under the lease agreement . . . .”

Supportive of its motion for summary judgment, plaintiff filed the affidavit of Karen Blume, “a legal specialist for [plaintiff who is] personally responsible for and familiar with the account of Defendant . . . .” Ms. Blume deposed, in pertinent part, as follows: “On or about November 27, 1984, [defendant], as co-Lessee, entered into a written Vehicle Lease Agreement (closed end) with Reserve Rent-A-Car & Leasing, Inc. for the leasing of one 1985 Chevrolet Camaro, .... Said contract was for value received, assigned to [plaintiff] . . . Said written Vehicle Lease Agreement required Defendant to pay to [plaintiff] as assignee forty-eight (48) monthly installments of $264.05 each, commencing on November 27, 1984. [Plaintiff] has not received payments from any party on said contract for December 1985, or for any month thereafter ... By way of the Complaint in this action, [plaintiff] has elected to declare all sums due under said contract, save and except rebates as required by law, to be immediately due and payable. ... As of November 20, 1987, Defendant is indebted to [plaintiff] in the sum of $12,549.65, with interest (computed pro rata) accruing at the rate of $3.41 per day until contract maturity on December 5, 1988. ... As of the date of this Affidavit, the amounts owing to [plaintiff] have not been paid and are due and payable.”

In opposition, defendant submitted his affidavit and deposed, in pertinent part, as follows: “That on August 22, 1985, the plaintiff in this action called me and informed me that payments under the vehicle lease agreement which form the basis of this action were delinquent ... At that point and time, I attempted to obtain the vehicle from my son who had exclusive control and possession of the vehicle and who had been solely responsible for making payments pursuant to the lease agreement ... In an effort to remove the car from the exclusive possession and control of my son, I obtained what my son purported to be the only set of keys to the car, let the air out of the tires and took the coil wire off the car, took the battery cable off, and informed my son that he was not to touch the car . . . My son managed to remove the car from my home, at which time I reported the car stolen to the Fulton County Police. Fulton County Police informed me, however, that as my son’s name was on the lease, he did have a right to possession of the car and they could not report the car as stolen ... At that point and time, we spoke with plaintiff in this action and asked that they take my son’s name off of the lease in order that we could have the exclusive possession and control of the automobile . . . Plaintiff herein refused to remove my son’s name from the lease, and the car was never recovered . . . Over the past several months, I have made numerous attempts to locate the automobile, and have finally done so and informed the plaintiff herein that the car is located in Panama City, Florida. The plaintiff has refused to accept my tender of the automobile and has continually blocked my efforts to minimize my liability under the lease.” From this and other evidence, the trial court entered summary judgment in favor of plaintiff “for the principal amount of $12,549.65.” Defendant appealed in Court of Appeals Case No. 77537. Plaintiff cross-appeals in Court of Appeals Case No. 77538. Held:

Case No. 77537

1. In his first two enumerations of error, defendant challenges for the first time on appeal the amount of damages awarded as a result of his alleged breach of the lease agreement. “ ‘[E]ven had [defendant’s] argument on this issue had any merit, his failure to raise it in the trial court in any manner provides no basis for consideration by this court. (Cit.)’ Hopkins v. City of Philadelphia, 155 Ga. App. 534, 535 (3) (271 SE2d 672).” Salome v. First Nat. Bank of Atlanta, 162 Ga. App. 394 (1), 395 (291 SE2d 452).

Decided February 20, 1989

Rehearing denied March 7, 1989

Lamb & Associates, T. Gordon Lamb, for appellant.

Levine & D’Alessio, Jonathan R. Levine, Stephen H. Block, for appellee.

2. Defendant contends in his third enumeration of error that “[t]he Court erred in not finding a genuine issue of fact as to whether or not [plaintiff] refused to lessen [its] damages by recovering the vehicle from [defendant’s] son.” This argument is without merit.

“A secured creditor has an option of either proceeding to suit on the note or foreclosing on the collateral. Homes of Tomorrow v. Fed. Deposit Ins. Corp., 149 Ga. App. 321 (2) (254 SE2d 475) (1979).” Sadler v. Trust Co. Bank of South Ga., 178 Ga. App. 871, 872 (1) (344 SE2d 694). “Indeed the creditor may utilize the alternatives concurrently until the debt is satisfied. Brown v. Georgia State Bank, 141 Ga. App. 570, 571 (234 SE2d 151) (1977).” Homes of Tomorrow v. Fed. Deposit Ins. Corp., 149 Ga. App. 321, 322 (2), supra.

3. Plaintiff’s motion for damages for frivolous appeal is denied.

Case No. 77538

4. On cross-appeal, plaintiff argues that because the trial court granted its motion for summary judgment on the vehicle lease agreement, it was also entitled to attorney fees as provided by law. We agree.

The vehicle lease agreement provided for the payment of attorney fees in the event of default. Further, plaintiff presented undisputed evidence of compliance with OCGA § 13-1-11 (a). Consequently, the trial court should have granted plaintiff reasonable attorney fees as authorized in OCGA § 13-1-11 (a) (2). See Sawyer v. C & S Nat. Bank, 164 Ga. App. 177, 178 (Id), 180 (296 SE2d 134).

Judgment affirmed in Case No. 77537. Judgment reversed in Case No. 77538.

Pope and Benham, JJ., concur.


text:
    77570.
    MEDDERS et al. v. COMMODORE FINANCIAL SERVICES CORPORATION.
    (379 SE2d 561)
   Sognier, Judge.

Commodore Financial Services Corporation filed a petition for a writ of possession in regard to a mobile home purchased by Thomas and Sandra Medders. The Medderses answered and counterclaimed for breach of warranty and fraud. The trial court granted Commodore’s motion for summary judgment and the Medderses appeal.

1. We find no merit in appellants’ contention that the trial court erred by ruling on appellee’s motion for summary judgment because appellants had not received adequate notice of the specific date of the hearing. The record reveals that notice of the motion was sent to appellants on January 11, 1988. Appellants failed to comply with Uniform Court Rules for the Superior Courts 6.2 and 6.3. The trial court ruled on appellee’s motion on May 11, 1988.

“Under the Rules, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days (the time during which the opposing party may file a response to the motion) after service of the motion has passed.” Jacobsen v. Muller, 181 Ga. App. 382, 383 (2) (352 SE2d 604)(1986). Appellants “had notice of the motion, and the fact that it did not set out a date for the hearing was not crucial . . . .” Tandy Computer Leasing v. Smith, 186 Ga. App. 101, 102 (1) (366 SE2d 417) (1988). “Since appellants] failed to comply in any way with the Rules under which [they were] supposed to operate, [they] cannot be heard to complain that the wheels of justice have rolled over [them].” Spikes v. Citizens State Bank, 179 Ga. App. 479, 481 (1) (347 SE2d 310) (1986).

2. Appellants contend in their next enumeration that the trial court erred by holding that the requirements of OCGA § 11-2-316 were met in the contract between the parties. In their brief, however, appellants concede that the contract contained a clause disclaiming all warranties and that the clause is properly conspicuous. Appellants seek to argue that the clause violates the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq. Aside from the fact that the record fails to reflect that appellants complied with the written demand required by OCGA § 10-1-399 (b), this claim was not presented in the pleadings or otherwise raised in the record before the trial court. The issue thus will not be considered on appeal. See Mathis v. Rome Tractor Co., 180 Ga. App. 426 (2) (349 SE2d 282) (1986).

3. Appellants assert error in the trial court’s finding that they are precluded from showing fraud based upon reliance on any representations made before the contract was signed. The contract executed by appellants contained both disclaimer and merger clauses and, as demonstrated by their counterclaim, appellants chose to keep the mobile home, affirm the contract, and seek damages under the contract. “ ‘ “It is crucial to the resolution of this case to note that [appellants] elected to affirm rather than to rescind the contract. Where the purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentations and his action for fraud must fail.’” [Citations omitted in original.] [Cit.]” Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 99-100 (5) (325 SE2d 595) (1984). Therefore, the trial court did not err by granting summary judgment in favor of appellee on the issue of fraud.

Decided February 16, 1989

Rehearing denied March 7, 1989

Francisco Gonzalez-Burgos, for appellants.

Bruce M. Walker, for appellee.

4. We find no error in the trial court’s refusal to consider evidence of contradictory prior or contemporaneous parol agreements to vary the terms of the unambiguous contract executed by appellants. OCGA § 24-6-1; see generally Buice Grading &c. v. Bales, 187 Ga. App. 263, 264-265 (370 SE2d 26) (1988).

5. The record reveals that appellants entered into a contract for the purchase of a mobile home in November 1985 obligating appellants to make monthly payments on the purchase. Appellants complied with the contractual requirements through June 1986 after which they ceased making the installment payments. The record supports the trial court’s finding that appellants are in default under the contract and that no genuine issues of material fact exist to create a jury question. Therefore, the trial court properly granted summary judgment in favor of appellee. See generally Bowers v. Safeco Ins. Co., 187 Ga. App. 229, 230 (1) (369 SE2d 547) (1988).

Judgment affirmed.

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


text:
    77726.
    JONES v. POWELL et al.
    (379 SE2d 529)
   Beasley, Judge.

Jones, pro se, appeals the grant of judgment on the pleadings to Dr. Powell and the grant of summary judgment to Dr. Griffin.

Decided February 9, 1989

Rehearing dismissed March 7, 1989

Pauline E. Jones, pro se.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Arnold E. Gardner, William L. Ballard, E. Jane Simpson, for appellees.

The injury complained of occurred in July of 1985 when Jones broke her ankle in a fall from a wheelchair to which she is confined. She was taken to Northside Hospital and treated for the broken ankle on July 7. Dr. Powell is the Director of Mental Health and Dr. Griffin treated her ankle. She returned for treatment on July 14 and further sought assistance with detoxification. On July 19, Dr. Lyon signed a Form 2013 resulting in Jones’ being taken to Georgia Regional Hospital for evaluation. See OCGA Title 37, Chapter 7; Davis v. Charter By-The-Sea, 183 Ga. App. 213 (358 SE2d 865) (1987).

This referral presents the crux of the lawsuit and has been presented to the courts previously by Jones. In Jones v. Clark, 182 Ga. App. 871 (357 SE2d 285) (1987) this court affirmed the grant of summary judgment to Northside Hospital and its administrator, Clark, on Jones’ malpractice action against them concerning this same incident. Thereafter, Jones filed suit against all of the individual doctors involved with her treatment.

1. Prior to this suit, Jones sued Dr. Griffin for malpractice and her landlady for an alleged conspiracy with Dr. Griffin in Civil Action No. 150449. Dr. Griffin was granted summary judgment in that case on February 8, 1988, and it was not appealed.

The present case, filed on February 17, warranted summary judgment because it is barred by the doctrine of res judicata as to Dr. Griffin. OCGA §§ 9-12-40; 9-12-42; Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986).

2. As to Dr. Powell, this suit was filed more than two years after the acts complained of and is barred by the statute of limitation. OCGA § 9-3-71 (a).

3. Along with the enumerations and brief filed by Jones are numerous documents and affidavits. The record cannot be supplemented by evidentiary matters submitted in an appellate brief. Roberts v. State, 186 Ga. App. 824, 825 (1) (368 SE2d 522) (1988); Johnson v. Medlin, 178 Ga. App. 650, 651 (344 SE2d 504) (1986).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

       Jones also includes, in her enumerations, allegations concerning Dr. Varner and Dr. Lyon. It appears, however, that there are no appealable orders as to these doctors, so the enumerations as to them will not be considered. OCGA §§ 5-6-33; 5-6-34 (a) & (b); 9-11-56 (h).


text:
    77856.
    WILLIAMS v. CROMPTON HIGHLAND MILLS, INC. et al.
    (379 SE2d 622)
   Carley, Chief Judge.

During his 35 years of employment with appellee-employer, appellant-claimant was exposed to cotton dust. In February of 1970, he was forced to resign because of lung problems and he remained unemployed for an 11-month period. In January of 1971, he was hired by a construction company. He worked until 1974, when he was again forced to resign due to his lung condition. Thereafter, appellant remained unemployed for approximately a three-year period, after which he began a series of jobs.

When he was diagnosed as having byssinosis in 1977, appellant filed a claim for workers’ compensation benefits. The Administrative Law Judge (ALJ) denied appellant’s claim based, at least in part, upon the then-existing statute of limitation. Appellant appealed to the Full Board. The Full Board, after a de novo review, adopted the ALJ’s findings and conclusions only “insofar as [they] determine[d] that [appellant’s] claim is barred under the statute of limitation[s].” Appellant did not appeal to the superior court.

In 1983, however, appellant filed another claim for workers’ compensation benefits based upon his byssinosis. After conducting a hearing, the ALJ found that appellant’s renewed claim was not barred by the statute of limitation. As authority for this holding, the ALJ relied upon former OCGA § 34-9-281 (d), which provided, in relevant part, that, “with respect to cases of disability diagnosed as byssinosis prior to July 1, 1983, such claims shall be filed prior to July 1, 1984.” The ALJ further found that appellant’s “work record . . . shows that he suffered disablement because of his work-related disease causing temporary total and temporary partial economic disability because of his work-related disease. . . .” Appellees-employer/insurer appealed to the Full Board. The Full Board, substituting its own findings and conclusions for those of the ALJ, held that appellant had not suffered a compensable “disablement” because, within one year of being forced to leave his employment in February of 1970, he had begun a three-year period of employment with the construction company and had earned more than $20 per week. As the result of its ruling on the issue of compensability, the Full Board found it unnecessary to make findings and conclusions as to the statute of limitation issue.

Appellant appealed to the superior court. The superior court affirmed, concluding that only permanent disability from an occupational disease would be compensable. The instant appeal is the result of this court’s grant of appellant’s application for a discretionary appeal from the superior court’s order.

1. Relying upon the “right for any reason” rule, appellees urge an affirmance of the superior court’s order on the ground that, regardless of compensability, the statute of limitation has run on appellant’s claim.

“By its express language [former] OCGA § 34-9-281 (d) is applicable to all cases of disability diagnosed as byssinosis prior to July 1, 1983. There can be no doubt the legislature intended the section be given retroactive operation.” Canton Textile Mills v. Lathem, 253 Ga. 102, 104 (1) (317 SE2d 189) (1984). The only distinction between the present case and Canton Textile Mills, supra, is that appellant was not only diagnosed as having byssinosis prior to July 1, 1983, he also filed a claim and was denied benefits prior to July 1, 1983. It is undisputed, however, that appellant’s prior claim was not denied on the merits but solely on the basis of the then-existing statute of limitation. Accordingly, appellees assert, in effect, that they have a vested right in that former statute of limitation.

In Bussey v. Bishop, 169 Ga. 251 (150 SE 78) (1929), our Supreme Court did hold that, once the statute of limitation for seeking workers’ compensation benefits has run, it becomes a vested right which is as valuable to the employer/insurer as the employee’s right to file his claim. However, the holding in Bussey v. Bishop, supra, was specifically overruled in Canton Textile Mills v. Lathem, supra at 105: “[T]he legislature may revive a workers’ compensation claim which would have been barred by a previous limitation period by enacting a new statute of limitation, without violating our constitutional prohibition against retroactive laws. . . . Our decision in this case is consistent with this court’s general policy of construing the provisions of the Workers’ Compensation Act liberally in order to afford the injured claimant a remedy. [Cit.] ”

Accordingly, we construe the Supreme Court’s decision in Canton Textile Mills, supra, as controlling authority for the proposition that appellees have no vested right in the former statute of limitation defense regardless of whether the viability of that former defense was or was not previously adjudicated. Appellant timely filed his claim for benefits prior to July 1, 1983 in compliance with former OCGA § 34-9-28 and his claim is not barred by the statute of limitation.

2. Former OCGA § 34-9-281 (b) (3) provided, in relevant part, that “an employer shall be liable for compensation . . . only where. . . . Disablement . . . results within three years, in the case of byssinosis, . . . after the last injurious exposure to the hazard of such disease in such employment. . . .” (Emphasis supplied.) “Disablement” was further defined as “the event of an employee becoming actually incapacitated because of occupational disease from performing his work in the last occupation in which he was injuriously exposed to the hazards of [byssinosis] or from performing any work in any other occupation for remuneration. Remuneration for work performed in any other occupation, as herein used, shall mean remuneration which equals or exceeds 33-Vs percent of the average weekly wages of the employee at the time of last injurious exposure, ... or $20.00 per week, whichever is less. “ ‘Disability’ means the state of being so totally incapacitated.” Former OCGA § 34-9-280 (2).

The Full Board seemingly has interpreted former OCGA § 34-9-281 (b) (3) as a bar to an employee’s recovery of any benefits if, at any time during the three-year period following his last injurious exposure, he ceases to suffer a “disablement” from byssinosis. This is an erroneous interpretation of the former statute. The purpose of former OCGA § 34-9-281 (b) (3) was not to require a three-year period of continuous “disablement” as a prerequisite to compensability for byssinosis. The purpose of that provision was merely to limit compensability to such cases as those wherein “disablement” from byssinosis manifested itself within the requisite three-year period. “[Sjome industrial diseases develop slowly; a point for commencing compensation must be determined in such cases as of a given date, just as the compensable point in other [workers’] compensation cases is determined by the date of accident, and accordingly, ‘disablement,’ which is the equivalent of ‘accident’ means the earliest time the disease can be identified when the employee actually becomes physically unable to work. . . . Disability results when, as a result of the occupational disease, the claimant cannot earn as much as $20 per week or one third of [his or] her former wages. The event which determines disability is the event of becoming thus incapacitated as a result of the disease, and this is disablement, the starting point of the disability and of the compensable period.” (Emphasis supplied.) Yates v. U. S. Rubber Co., 100 Ga. App. 583, 587 (2) (112 SE2d 182) (1959).

Accordingly, whether or not appellant did earn more than $20 per week at some point during the three-year period subsequent to February 1970 would be a completely irrelevant inquiry under former OCGA § 34-9-281 (b) (3). The only relevant inquiry is whether or not appellant was unable at any point during that three-year period to earn at least $20 per week as the result of his byssinosis. “[I]f the employee can no longer perform the duties of his employment under exposed conditions, then whether or not ‘disablement’ (the equivalent of accident) occurs must be determined by whether or not the claimant can find other employment equal to at least one third of [his or] her former wages (or $20 if that is the lesser figure).” Yates v. U. S. Rubber Co., supra at 587 (2). If, at any point during the three years subsequent to February 1970, appellant was unable to earn at least $20 as the result of his byssinosis, then his “disablement” from byssinosis manifested itself as of that point and the time requirements of former OCGA § 34-9-281 (b) (3) were satisfied. If, on the other hand, appellant could have earned at least $20 throughout the entire three year-period notwithstanding his byssinosis, then he did not suffer a compensable “disablement” because the time requirements of former OCGA § 34-9-281 (b) (3) were not met.

Appellant earned no wages from February 1970, when he was forced to resign from his employment with appellee-employer, until January of 1971, when he began work for a construction company. However, the Full Board did not address the issue of whether or not appellant was, during this 11-month period, unable to earn at least $20 per week as the result of his byssinosis. Instead, the Full Board erroneously focused on the fact that appellant was earning more than $20 per week after January 1971 as a basis for denying compensation.

The superior court, apparently applying the “right for any reason” rule, affirmed the Full Board on the basis that a compensable disablement from an occupational disease “must be permanent in nature. The statute under no circumstances provides for ‘intermediate’ disablement due to an occupational disease. ...” Under the applicable former occupational disease provisions of the workers’ compensation law, “[disability [was] the state of being totally incapacitated as . . . defined [in former OCGA § 34-9-280 (2)]. The act [made] no provision for compensable partial disability in such cases.” (Emphasis supplied.) Yates v. U. S. Rubber Co., supra at 583-584 (2a). We find no authority, however, for the proposition that, in addition to being total, a compensable “disablement” from an occupational disease must also be permanent. OCGA § 34-9-288 provides that the general provisions of the workers’ compensation law shall be applicable in cases of occupational diseases “unless otherwise herein provided or inconsistent herewith.” With regard to compensability, the former statutory provisions regarding occupational diseases were inconsistent with the general provisions of the workers’ compensation act only to the extent that benefits for partial disability pursuant to OCGA § 34-9-262 were not recoverable. See Yates v. U. S. Rubber Co., supra. See also former OCGA § 34-9-208 (2) which defined “disablement” and further provided that “disability” meant “the state of being so totally disabled.” (Emphasis supplied.) Accordingly, so long as appellant was unable to earn less than $20 per week as the result of his byssinosis, he was totally disabled as defined in former OCGA § 34-9-280 (2) and entitled to benefits calculated pursuant to OCGA § 34-9-261. If and when appellant’s condition changed for the better and he was able to earn more than $20 per week notwithstanding his byssinosis, then he was no longer totally disabled and his entitlement to receive benefits ceased. The Full Board erroneously failed to address the issue of whether or not appellant was, during any of the periods of his unemployment subsequent to February 1970, unable to earn at least $20 a week as the result of his byssinosis and whether or not he was, therefore, entitled to compensation for total disablement during those periods.

Decided March 7, 1989.

Conrad & Abernathy, H. Clifton Conrad, Jr., for appellant.

Cameron D. Simpson, James T. McDonald, Jr., for appellees.

3. For the reasons discussed, the superior court erred in failing to reverse the award and remand the case to the Full Board. “ ‘ “Where it affirmatively appears that the award is based upon an erroneous legal theory, and that for this reason the board has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the board for further findings. . . .” ’ [Cit.] We must therefore reverse the order of the superior court [with direction to] remand the case to the [Full] [B]oard to enter findings and conclusions consistent with the above.” Barry v. Aetna Life & Cas. Co., 133 Ga. App. 527, 531-532 (211 SE2d 595) (1974).

Judgment reversed with direction.

Deen, P. J., and Sognier, J., concur.


text:
    77265.
    MEIER v. THE STATE.
    (379 SE2d 588)
   Beasley, Judge.

Meier appeals his conviction and sentence for aggravated sodomy, OCGA § 16-6-2.

1. Appellant enumerates error in failing to record the voir dire after defense counsel specifically requested recordation. He maintains that he was unaware that voir dire was not being recorded and so was not on notice to perfect the record.

The court stated: “She doesn’t normally report voir dire. If you want it down — it’s something that I don’t — they won’t report voir dire or opening and closing unless it’s requested.” Defense counsel: “We should request it, Your Honor, then.” Thereupon, an overnight recess occurred.

Appellant made no attempt to have the record or transcript amended to include any objectionable matter which might have transpired during voir dire. OCGA § 5-6-41 (f). The entire voir dire is not required to be reported in all felony cases. State v. Graham, 246 Ga. 341 (271 SE2d 627) (1980). “ ‘Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f) . . . When this is not done, there is nothing for the appellate court to review. [Cit.]’ [Cits.]” Vaughn v. State, 173 Ga. App. 716, 718 (7) (327 SE2d 747) (1985).

Furthermore, appellant does not cite any specific objection made during voir dire or claim any specific harm from the lack of transcription; therefore, the omission cannot be reversible error. Smith v. State, 251 Ga. 229, 230 (2) (304 SE2d 716) (1983).

2. Appellant contends that the trial court erred in allowing evidence of prior acts because they were not similar to the charged offense, thus permitting the State to impermissibly place his character in issue. He maintains that the prior acts were not forcible, were merely “love pats” or suggestive remarks, and that they were introduced by the State to show that he was a homosexual and to exploit his lifestyle for the jury.

The evidence construed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following: Meier was a department head in Cobb County and the victim was a seventeen-year-old student who worked part-time. The student took Meier one of his senior photographs because the student felt Meier cared about him as Meier had often inquired about his sports and school work. The student delivered the photo and left. Meier summoned him back into his office saying that he had some books for the student to look at. The office was small and cluttered. Meier left while the student examined the books which were about “working out.” Meier returned, closed the door, said he was tired, and told the boy to stand up. He pulled the boy’s pants and underwear down and performed oral sex on him. The boy was scared and “froze.” After two or three minutes, Meier pulled out a handkerchief, wiped the boy and his own mouth off, and said, “this is not the right time or the right place.” The boy took money offered for a soda and left.

The prior incidents at issue all involved sexual advances, either physical and/or verbal initiated by Meier and made to young males who were either employees or prospective employees of the archaeology department. All but one of the incidents took place in the department’s offices or on location doing business. In addition, contrary to appellant’s contention, the prior incidents were not shown to be consensual.

“[T]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible, [cit.] . . . .” Mims v. State, 180 Ga. App. 3, 5 (2) (348 SE2d 498) (1986). “Evidence of other similar crimes by a defendant is admissible if there is ‘sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cits.]’ [Cit.] Such evidence may be admitted to show state of mind or intent of a defendant. [Cit.] ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible “to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.” [Cits.]’ [Cit.]” Felts v. State, 154 Ga. App. 571 (2) (269 SE2d 73) (1980).

The prior acts were sufficiently similar so as to be admissible for the permissible limited purposes.

3. Appellant further contends that the trial court erred in failing to conduct an evidentiary hearing on the admissibility of the similar transactions rather than relying on the assistant district attorney’s statements in his place as to what the similar transaction evidence would show. He maintains that the proffer of evidence of the transactions was dramatically different than the actual trial testimony of the prior acts.

Uniform Superior Court Rule 31.3 “clearly grants the trial court discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence.” Hall v. State, 181 Ga. App. 92, 93 (1) (c) (351 SE2d 236) (1986). The statement in place as to what was expected to be shown revealed facts so as to constitute sufficient similarity, especially as regards sexual crimes, between the prior acts and the offense on trial to permit the admission of such evidence. Id.

Any eventual disparity between the stated expected evidence and the actual testimony has not been shown to have been known or anticipated by the State at the time of the hearing in the matter. In any event, we do not find such dramatic disparity as claimed by appellant so as to render the acts inadmissible for the stated purposes.

4. Appellant contends that the trial court erred in allowing the State to impermissibly place his character in issue by the introduction of pornographic materials which had been seized from a county laboratory. He maintains that there was insufficient evidence, to connect him to the pornography, especially some materials found subsequent to the police search. He further argues that even if ownership was sufficiently shown, it in and of itself did not show bent of mind, intent, motive, lustful disposition or proclivity toward forcible sexual acts.

There was evidence that only Meier and one other person had keys to the laboratory. The other individual testified that a new lock had been placed on the door which could only be opened by a key given him by Meier. There was evidence that Meier did not allow other employees in the laboratory and often slept there. The seized materials which included more than two hundred pornographic magazines were found in a space containing a cot and numerous personal effects of Meiers.

The materials found later were discovered in the office containing Meier’s personal effects and in a desk containing correspondence to and from Meier.

The circumstantial evidence was sufficient to enable the jury to link Meier to the pornography and to permit the jury to determine the relevance if any to the issue on trial. “ ‘(W)hen the relevance of evidence is in doubt, the Georgia rule favors its admission and submission to the jury with any needed instructions. [Cit.]’ ” Graham v. State, 250 Ga. 473, 475 (3) (298 SE2d 499) (1983). Moreover, the possession of such materials “ ‘does have a tendency to show bent of mind toward sexual conduct. [Cits.]’ [Cit.]” Carter v. State, 177 Ga. App. 647, 648 (2) (340 SE2d 622) (1986). Inasmuch as the pornography arguably was relevant, the fact that it might have incidentally brought the defendant’s character into issue would not cause it to be inadmissible. Wood v. State, 255 Ga. 697, 698 (4) (341 SE2d 442) (1986).

5. Appellant contends that the court erred by allowing the State to question its witnesses about the physical state of the laboratory because it was not relevant to any issue on trial and placed his character in issue. He further maintains that the testimony should not have been permitted because it contained evidence of another crime, maintaining a disorderly house, OCGA § 16-11-44, and he was not given the requisite notice under the Uniform Rules of the State’s intention to present evidence of this other crime.

Contrary to appellant’s contention, the laboratory’s condition was relevant to show the circumstances surrounding the seizure of the pornography. Furthermore, the State did not elicit the testimony to show defendant had committed another criminal act. Even if the disarray did incidentally place defendant’s character in issue, it would not render the testimony inadmissible. Wood v. State, supra at 698 (4).

In addition, several witnesses testified to the laboratory’s poor condition. Defendant objected on the basis urged only as to one of the witnesses. Such objection as to the other witnesses was waived for “[a]n objection not raised at trial is waived.” Hardeman v. State, 252 Ga. 286, 288 (2) (313 SE2d 95) (1984). The objected-to testimony, even if error, would have been harmless in light of the like evidence admitted without objection. Griffin v. State, 170 Ga. App. 287, 290 (3) (316 SE2d 797) (1984).

6. Appellant contends the trial court erred in failing to give a requested charge on simple battery, OCGA § 16-5-23, because it was justified by the evidence.

Defendant presented no evidence. In closing argument, defense counsel advanced the theory that the student initiated the incident and was rejected by defendant. The uncontradicted testimony of the victim was sufficient to have enabled the jury to find that defendant committed the offense of aggravated sodomy beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Under these circumstances, nothing required the court to give the jury instruction on simple battery. See Shields v. State, 162 Ga. App. 388 (2) (291 SE2d 448) (1982).

Decided February 23, 1989

Rehearing denied March 8, 1989.

James H. Whitmer, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Donald T. Phillips, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.